On December 30, 2021, Brazilian Federal Law No. 14,285/21 was published, introducing changes to Law No. 12,651/12 (the “Brazilian Forestry Code”) in order to provide for the delimitation of Permanent Preservation Areas (“APP”) in consolidated urban areas.
In addition to consolidating the criteria to characterize a consolidated urban area, which were previously scattered across various laws, the main change introduced by Law No. 14,285/21 is the amendment of Article 4(10) of the Forestry Code, which provides for the delimitation (measurement) of APPs in consolidated urban areas.
Previously, the Forestry Code did not mention the concept of consolidated urban areas and required compliance with City Master Plans and Municipal Land Use Laws but at the same time stated that the Forestry Code governed the delimitation of APPs. Historically, the delimitation of APPs in urban areas has been debated intensely and the former wording of Article 4(10) did not help solve the issue. This situation resulted in a decision by the Superior Court of Justice ("STJ") in May 2021, which ruled that the APP ranges provided for by the Forestry Code were to be observed.
Now, pursuant Law No. 14,285/21, Article 4(10) of the Forestry Code has been amended to expressly determine that municipal or district laws can establish APP ranges differently from those provided for in the Forestry Code as long as the state, municipal or district environment councils have input and provided that it is a consolidated urban area in light of the relevant criteria.
In addition, the following requirements must be met for an activity in an urban APP to be authorized:
(i) the area is not at risk of natural disaster;
(ii) the activity complies with guidelines from plans for water resources, water basins, drainage or sanitation, as applicable; and
(iii) at least one of the following is true of the activity:
(i) it serves a public use;
(ii) it serves a social interest; or
(iii) it has minimal environmental impact