Name: ALEXANDRE IUNES GODINHO ARAÚJO
Publication date: 27/04/2023
Summary: From the perspective of the Rights of Rivers, a subfield within the Rights of Nature
paradigm, which offers a new approach to Environmental Law wherein the
protection of Nature is justified intrinsically, this study offers a qualitative analysis of
the methodologies and criteria employed by the State of Espírito Santo to determine
grantable flows and, conversely, the minimum flow to which rivers and streams are
entitled, referred to as ecological flow. Based on four pioneering cases of the
recognition of rights to rivers, we initially identified the main initiatives, motivations,
theoretical foundations, implementation formats, practical consequences, and
challenges encountered in conferring rights to non-living natural entities, specifically
in the cases of Vilcabamba (Ecuador), Atrato (Colombia), Ganges/Yamuna (India),
and Whanganui (New Zealand). This study examines 14 (fourteen) processes for
granting the right to use water resources within the State Water Resources Agency
- SWRA, aiming to understand the methods, criteria, and priorities applied in the
allocation of water use rights within the context of the emergent Right of Rivers
framework. Guided by the set of methodological techniques called Content Analysis,
this research scrutinizes the minimum residual flow defined in Sections of Reduced
Flow – SRF’s of Hydroelectric Generation Plants – HGP’s through various
comparative elements: the water body, watershed, and municipality; references to
the term ecological flow; the reference flow mandated and prevailing environmental
standards at the time of the granting ordinance; maximum grantable flow, minimum
residual flow in the SRF, and applicable environmental standards during the
issuance of the granting ordinance; minimum residual flow requested by the grantee
for the SRF; minimum residual flow stipulated in the granting ordinance; conditions
for validity in the granting ordinance; duration of grant orders; and statements from
the licensing environmental body regarding ecological flow. Ultimately, the findings
indicate a persisting gap in the comprehension of ecological flow issues, with
atypical requirements and decisions that do not conflict with the Rights of Rivers.
Conversely, has progressively incorporated environmental flow considerations in its
recent decisions, demonstrating an increased sensitivity to ecosystemic factors
when deliberating grantable flows, approached on a case-by-case basis within a
holistic framework.
