BRAZIL Law and Practice Contributed by: Débora Yanasse, Bruno Salzano, Luisa Tortolano Barreto and Julia Braga, Tauil & Chequer Advogados in association with Mayer Brown
authorised agent a 35-year term in which to act as an independent power producer or self-pro- ducer. The construction and operation of large hydro- power plants (equal to or greater than 50 MW of installed capacity) is subject to a concession, which is granted after a public bidding process. The construction and operation of small hydro, wind, solar, biomass and fossil fuel thermal power plants is subject to authorisation by the MME or ANEEL. Power generation projects with installed capacity equal to or lower than 5 MW simply need to register with ANEEL after con- struction. Environmental licences at federal or state level are also required for the construction and opera- tion of power generation facilities, as well as cer- tain construction and operation permits at local level. Depending on the project’s characteristics, other permits may also be required, such as a water-usage permit. Access to the electricity grid is also a critical part of the process, and is subject to specific regula- tions, such as ONS’s Grid Procedures, ANEEL’s Transmission Rules and ANEEL’s Distribution Procedures. 3.2 Obtaining Approvals to Construct and Operate Generation Facilities Hydropower generation concessions are usu- ally granted after a public auction, in which the winning bid criterion is the lowest power price, considering the payment of a fee for the use of a public good ( Uso do Bem Público or UBP). Authorisations for power generation facilities are granted by ANEEL upon fulfilment of cer- tain legal, technical and financial requirements pursuant to ANEEL Normative Resolutions No
875/2020 (small and medium-sized hydropower plants) and No 1,071/2023 (thermal, wind and solar power plants). Authorisations are also automatically granted, by the MME or ANEEL, to the winners of the new energy auctions. To participate in these auctions, the projects need to be technically qualified by the EPE upon evidence of certain technical, environmental, real estate, grid connection and fuel supply (if applicable) conditions that confirm the project’s feasibility. 3.3 Approvals to Construct and Operate Generation Facilities Obligations Permission to build large hydropower plants may be granted by means of public service conces- sions or concessions for the use of the public good, since all hydro-resources in Brazil are con- sidered public. Concession agreements for pow- er generation place several obligations on con- cessionaires regarding the regularity, continuity, safety, efficiency and quality of public services, as well as payment of the UBP, if applicable. Authorisation acts make reference to the obliga- tion of authorised agents to comply with ANEEL Normative Resolution No 921/2021, which sets forth the rights and obligations of independ- ent power producers and self-producers under authorisation. Construction Schedule Both the concession agreements and authori- sation acts of greenfield projects establish a construction schedule with the dates for achiev- ing intermediary milestones and the dates for commencing the commissioning and commer- cial operation of the power plant; and, specifi- cally for solar, wind and thermal power plants, authorisation acts indicate a 54-month term for
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