After several legal, technical, economic, political and even ideological debates, the Federal Law No. 12.651/2012 entered into force on May 28, 2012, subsequently amended by Federal Law No. 12.727/2012, also known as New Forest Code.
Among the most controversial issues in such regulation, it is important to highlight:
- The exclusion of the National Environmental Council ("CONAMA") jurisdiction for creating new Permanent Preservation Areas ("APP");
- The disregard of springs riverheads and intermittent waterhole as APP;
- The changes in the criteria for APP classification localized on hilltops;
- The extension of social interest and public utility criteria enabling intervention in APP;
- The allowance to develop agroforestry, eco and rural tourism activities in APP, in rural consolidated areas until July 22, 2008;
- The recovery rule according to the property size;
- The creation of the Environmental Reserves Shares
Notwithstanding these arguments and their reception by Courts, the new Forest Code also brought certain improvements, such as disregard of APP maintenance on artificial water courses margins; more reasonable criteria for encompassing APP in percentage of the Legal Reserve; creation of the Rural Environmental Registry ("CAR"), which aims at integrating environmental information of rural properties, among other relevant topics.
Nevertheless, some issues still depend on regulation, such as APP located in urban areas. The New Forest Code makes clear that APP in urban areas exists; however, the APP size is not fully determined yet, generating questions and uncertainties about the size of its area.
The new Forest Code has established maximum limits for APP restoration area according to the property size. The properties of ten (10) fiscal modules have some recovery limits, such as: (i) properties of two (2) fiscal modules shall not exceed 10% (ten percent) of recomposed APP ; (ii) properties composed of more than two (2) up to four (4) fiscal modules shall not exceed 20% (twenty percent) of recomposed APP . The Law article regarding properties of more than four (4) up to ten (10) fiscal modules was vetoed, promoting insecurity in relation to which limitations shall be applied to such properties.
CAR was subject to complementary regulation only at the beginning of May, 2014, as well as environmental regularizing programs, whose purpose is to promote the regularization of APP, Legal Reserve and restricted use areas by recovery, restoration, regeneration or compensation measures.
We highlight that CAR recent regulation has brought relevant provisions regarding the terms of commitments or similar instruments for environmental regulation of rural properties relating to APP, Legal Reserve and areas of restricted use, signed under the terms of previous legislation, which shall be revised to suit the new Forest Code provisions. Hence, this is the real breakthrough for those who sought to regularize such areas in the past, and, through an interpretation mainly headed by the Public Attorney's Office, would not be able to use the benefits of the new Forestry Code.
Even after two (2) years entering into force, there are many aspects to be discussed and regulated in forest scope, given the complexity of the matter and also the interests involved in it. Despite of the outstanding questions, the cases on this subject need to be reevaluated regarding the significant advance to regularize areas through the creation of economic instruments.