Brazil’s Superior Court defines limits for Permanent Preservation Areas (“APPs”) zones located in consolidated urban areas

On April 28, 2021, the judgement of Recurring Theme No. 1010 was rendered, in which Brazil’s Superior Court of Justice (“STJ”) decided that the length of APP zones from banks of natural waterways located in consolidated urban areas should vary from 30 to 500 meters, as defined in Law No. 12,651/2012 (“Brazilian Forest Code”).

This judgment sought to settle the discussion on whether the protected zone from the banks of natural waterways in consolidated urban areas should be defined in accordance with the APP limits defined by the Brazilian Forest Code, or in accordance with Law No. 6,766/1979 (“Urban Land Division Law”).

For reference, we note that, in accordance with the Brazilian Forest Code, APPs are protected areas with the environmental functions of preserving water resources, landscape, geological stability, and biodiversity, of facilitating the gene flow of fauna and flora, of protecting soil, and of ensuring the well-being of human populations (art. 3, II, Law No. 12,651/2012). In this respect, the Brazilian Forest Code classifies APPs as the marginal zones, in rural or urban areas, of any natural watercourse, in a range that can vary between thirty (30) and five hundred (500) meters, depending on the width of the respective watercourse (art. 4, I, Law No. 12,651/2012).

With regard to the Urban Land Division Law, we also highlight that its previous wordings contained a limit of fifteen (15) meters on each side of running and dormant waters for a non-buildable zone, “except for greater requirements from specific legislation” (art. 4, III, Law No. 6,766/1979). In 2019, this provision was amended through Law No. 13,913/2019, resulting in the exclusion of the part that mentioned “greater requirements from specific legislation”, and the maintenance of the obligation to keep a non-buildable zone of at least fifteen (15) meters.

In the judgment of Recurring Theme No. 1010, STJ Justices understood that the definition of the law applicable to the theme should ensure the best and most effective protection to the natural and artificial environment, in accordance with articles 170, item VI, and 225 of the Federal Constitution, under the principle of sustainable development, and with the social and ecological functions of property. In this sense, the Justices understood that, considering that the Brazilian Forest Code provides for greater minimum lengths for marginal zones of watercourses, such rule would be special and specific in relation to the Urban Land Division Law. Thus, the Justices decided that the Brazilian Forest Code shall govern the protection of APPs in consolidated urban areas, and the lengths of marginal zones contained therein should be applied. On the subject, the Justices pointed out that there are already several precedents in the STJ that demonstrate an settled understanding as to the application of the Brazilian Forest Code. Furthermore, the Justices argued that the recent supervening Law No. 13,913/2019 does not exclude the legal basis for the applicability of the Brazilian Forest Code.

The Justices decided that there was no need to modulate the effects of the decision, considering that the Court is confirming old and consolidated precedents on the matter and that the application of Recurring Theme No. 1010 only to future cases would be incompatible with previous decisions and would result in legal uncertainty.

Demarest’s Environmental Law team is available to provide support with further information and for the definition of measures to be adopted on a case-by-case basis.