Technical Note Técnica
Total Page:16
File Type:pdf, Size:1020Kb
NT.F-0009-2019 TECHNICAL NOTE TÉCNICA Processes: ARSESP.Adm-0252-2018 Topic: Regulatory criteria for tariff recognition of transfers to municipal funds for basic sanitation. Date: February 04, 2019 TABLE OF CONTENTS 1. Introduction ............................................................................................................................................... 2 2. Legal Basis ................................................................................................................................................. 3 3. Regulatory Limit ........................................................................................................................................ 7 4. Scope ......................................................................................................................................................... 9 5. Allocation of Resources ............................................................................................................................. 9 6. Minimum Regulatory Requirements ....................................................................................................... 10 7. Authorization of the Municipal Funds for Basic Sanitation ..................................................................... 10 8. Monitoring of Transfers and Use of Resources ....................................................................................... 11 9. Control Mechanisms................................................................................................................................ 12 10. Municipalities with Transfer Agreements or Tariffs Already Recognized ............................................... 13 Attachment I – Spending Already Settled in Program and Service Agreements ........................................ 14 - 1 - NT.F-0009-2019 1. INTRODUCTION The objective of this Technical Note is to present the criteria proposal to be established by Arsesp for the recognition of the transfers made to municipal sanitation funds (FMSB) in water and sewage tariffs. The search for universalization implies in the widening of service coverages, which requires integrated actions between the granting authority and the service provider. This has been a challenge, both in the urban and the rural areas. In the urban area, specific actions are required in very densely populated or irregularly occupied areas, for example. In rural areas, actions in isolated regions are needed and which, in many cases, are not included in the area defined in the service agreement with the service providers. In order to expand the infrastructure and operational facilities of water and sewage systems, certain investments and actions are required, in which the responsibility falls upon the municipalities and not directly upon the service providers. Examples include the removal of irregular houses from slums and precarious settlements, land regularization, channeling of streams and assistance to regions outside the concession area defined in the agreements. Federal Law 11.445/2007, in the caput of Article 13, as amended by Provisional Measure 868/2018, authorized the creation of funds to provide funds for basic sanitation actions, namely: Article 13. The Federation entities, alone or in public consortium, may establish funds to be used, among other resources, for payments of partial revenue for services, pursuant to the provisions of the respective basic sanitation plans and universalization of basic public sanitation services. (highlighted by us) It is, therefore, a public policy instrument that aims at the universalization of basic sanitation services. In this context, Arsesp decided to include, within the scope of Sabesp’s 2nd Regular Tariff Review, a financial component in the tariffs applied to all regions served by the provider, which corresponds to the transfer of funds to municipal sanitation funds (FMSB). This transfer is an incentive to the creation of municipal funds, in order to promote, at the municipal level, actions aimed at the universalization and continuity of services. Currently, Sabesp makes financial transfers to certain municipalities due to contractual clauses agreed between Municipalities, the Government of the State of São Paulo and Sabesp, and that establish the base of resources that are destined to the municipal funds for basic sanitation. Each agreement has a certain particularity regarding such transfer. - 2 - NT.F-0009-2019 Although the recognition of these transfers has originated in agreements signed between Sabesp and municipalities, Arsesp understands that the application of this mechanism can be extended to all municipalities regulated by Arsesp, including those not operated by Sabesp, such as the City of Santa Gertrudes, served by BRK Ambiental Santa Gertrudes, and the City of Mairinque, served by Saneaqua Mairinque. This practice is also adopted by ARSAE-MG for the transfers, by COPASA, to municipalities which have established funds. Resolution ARSAE-MG 110, dated June 28, 2018, which regulates this matter, and Technical Note GRT No. 08/2018 were used as reference documents for the preparation of this Technical Note. In the case of Sabesp, the recognition of this methodology by Arsesp implies in a temporary cross- subsidization between municipalities, to the extent that all municipalities comply with the criteria established by Arsesp in order to institute the transfer of a certain percentage of operating income by Sabesp to the respective municipal fund. 2. LEGAL BASIS Arsesp used the legal grounds set forth in this chapter as guidelines for the formulation of the criteria for recognizing transfers to the basic sanitation funds for water and sewage tariffs. The institution of municipal sanitation funds, legally protected by Law 11.445/2007, in Article 13, as amended by Provisional Measure No. 868/2018, has the purpose of funding actions capable of guaranteeing universal access to basic sanitation services, guided by the terms contained in Municipal Sanitation Plans: Article 13: The Federation entities, alone or in public consortium, may establish funds to be used, among other resources, for payments of partial revenue for services, pursuant to the provisions of the respective basic sanitation plans and universalization of basic public sanitation services. - 3 - NT.F-0009-2019 Paragraph 1. The resources of the funds referred to in the caput may be used as sources or guarantees in credit operations to finance the necessary investments for the universalization of basic public sanitation services. Among the minimum criteria for the tariff recognition of a portion of the amounts to be transferred to the municipal sanitation funds, the Municipal Sanitation Plan requirements are legally supported in the caput of Article 13 of Law 11.445/2007 and must also observe the rules defined in Article 19 of the same law, as amended by Provisional Measure No. 868/2018: Article 19. The provision of basic public sanitation services will observe a plan, which may be specific to each service, and must cover, at least: I - a diagnosis of the situation and its impacts on living conditions, using sanitary, epidemiological, environmental and socioeconomic indicators methods that identify the causes of the detected deficiencies; II - objectives and short, medium and long-term goals for the universalization of services, allowing gradual and progressive solutions and observing the compatibility with the other plans for the sector; III - programs, projects and actions necessary to achieve the objectives and targets consistent with the respective multi-year plans and other related government plans, identifying possible funding sources; IV - emergency and contingency actions; V - mechanisms and procedures for the systematic assessment of the efficiency and effectiveness of the planned actions. Arsesp is responsible for determining the revenue percentage of each municipality that will be considered in the tariff composition which are linked to transfers to the municipal funds since, under provisions of Law 11.445/2007, Article 22, item IV, as amended by Provisional Measure No. 868/2018, one of the objectives of the regulation is to define tariffs that ensure the financial and tariff reasonability balance of the agreements: Article 22. The objectives of the regulation include: - 4 - NT.F-0009-2019 IV - to set tariffs that ensure both the financial and tariff reasonability balance of the agreements, through mechanisms that induce the efficiency and effectiveness of services and allowing the sharing of productivity gains with users. In addition, the regulator has powers to issue rules regarding the regime, structure, and tariff levels, as well as the procedures and deadlines for its fixation, readjustment and revision, according to Law 11.445/2007, Article 23, item IV, as amended by Provisional Measure No. 868/2018: Article 23. The regulatory body shall issue rules regarding the technical, economic and social dimensions of the services provided, which shall cover at least the following aspects: Item IV: regime, structure and tariff levels, as well as the procedures and deadlines for their fixation, readjustment and revisions. The Federal Constitution, according to Article 167, conditions the creation of funds, of any nature, to the previous legal authorization: Article 167. It is prohibited: (...) IX - the institution of funds, of any nature, without previous legal authorization; The State Complementary Law 1.025/2007 attributes Arsesp with the power to regulate and inspect,