Currently, the installation and use of nautical structures in federal public waters in Brazil is regulated by Ordinance No. 404/2012 of the Bureau of Federal Property Management (SPU Ordinance 404). It defines which structures are subject to regularization of possession by means of entering into an onerous assignment agreement with the SPU. Port infrastructures built over water are conceptually included among these nautical structures.

There is much debate about the legality of this ordinance, especially regarding the possibility of charging for the use of public waters, which is already under judicial review by direct unconstitutionality claim ADI 4819, filed by the Brazilian Association of Port Terminals with the Federal Supreme Court. Notwithstanding the judicialization of this issue, the Ministry of Transport, Ports, and Civil Aviation and the Ministry of Planning, Development and Management have sought to organize the procedure to bring into good standing the use of public waters in port projects, which is timidly evidenced by the publication of the Interministerial Ordinance No. 1, of April 18, 2017.

It turns out that, in the reality of Brazilian private port enterprises, obtaining regulations for the procedure for requesting the use of public waters at new terminals is only one of the steps to solve the challenges that port operators face. SPU Ordinance 404 can no longer address the reality of these terminals and, especially, the peculiarities of port and shipping activities.

First of all, SPU Ordinance 404 is not clear as to the amount to be paid for the use of public waters. The normative text refers to a public price list that is difficult to access, which prevents interested parties from identifying in advance the cost of using public waters.

Secondly, SPU Ordinance 404, which is not focused specifically on port projects, but rather on all situations that require the installation of nautical structures in federal public waters, is not clear in its division of what nautical structures are and what structures used merely to support shipping activity are. For example, interested parties who need to build anchoring structures should not only request the approval of the maritime authority, since it is an activity linked to shipping, but also request the onerous assignment of the respective federal public waters to the SPU, even if the installation of structures is carried out to ensure greater safety for shipping and anchor depth of its vessels and other shipping companies that operate in the region.

The major challenge in this context is to have a rule that guarantees legal certainty to entrepreneurs and clearly indicates how much it will cost, which structures are subject to SPU approval, which structures are subject to onerous assignment, and which structures are merely related to shipping activity, for this reason, under maritime jurisdiction. It is also important that the rule should state which cases require public bidding (and when it is not necessary) and the criterion used to assign space to one operator and not another, especially when the terminal is already authorized by the Ministry of Transport, Ports, and Civil Aviation.

In this scenario, the rule that deals with the possession of public waters, which, it is worth reiterating, is as relevant as the possession and ownership of the respective properties, must accompany the reality of the activities it affects. In the case of port terminals, in particular, the major challenge is to clarify the division among competent authorities, which is already enough to justify the promulgation of a specific rule on this topic.

Meanwhile, companies in the industry face serious difficulties in complying with applicable land regulations and operating in a compliant manner, which creates operational uncertainties and legal uncertainty for the sector.