Royal Decree-Law 17/2012 of 4 May on Urgent Environmental Measures

OFFICIAL STATE BULLETIN No. 108 Saturday, 5 May 2012 Sec. I. Page 33889 I. GENERAL PROVISIONS HEAD OF STATE 5989 Royal Decree-Law 17/2012, of 4 May, on urgent measures in the matter of the environment. The constitutional right to enjoy an adequate environment for the development of the person obliges public authorities to establish effective mechanisms to protect and conserve it. This goal can only be achieved by ensuring the compatibility of human activity with the preservation of the environment. To this end, environmental legislation must be clear and provide legal certainty. In a situation such as the current one, where profound structural reforms are being undertaken to allow the reactivation of our economy and the generation of employment, the urgent reform of certain aspects of our environmental legislation that contribute to achieving this objective, without diminishing the principle of protection, is indispensable.

The reform undertaken by this royal decree-law is oriented towards administrative simplification, eliminating those intervention mechanisms that, due to their own complexity, prove ineffective, and, what is more serious, impose delays difficult to bear for citizens and management difficulties for public administrations. The simplification and streamlining of environmental norms promoted, in addition to being necessary in itself, proves to be an ideal means to accompany the reforms that the Government has put into motion on an urgent basis.

This reform proceeds from the premise that the effectiveness of environmental norms cannot be identified with the juxtaposition of plans, programs, authorizations, permits, and other measures of difficult real and practical application. On the contrary, effective protection is at odds with excessive rhetorical and normative overload that leads to atrophy; and it requires the establishment of clear and simple rules that protect the environment and foster development compatible with and integrated into it. In sum, environmental legislation must also be sustainable.

In accordance with these objectives, Law 42/2007, of 13 December, on Natural Heritage and Biodiversity, is modified, since its application has revealed certain imbalances that require correction with the utmost speed, as they are generating unnecessary delays for citizens and difficulties difficult to overcome for public administrations responsible for the management of protected areas and the Natura 2000 network. Thus, in those cases where several protection figures overlap, it is provided that they will be consolidated and unified into a single protection instrument. At the same time, the compatibility of protection with the development needs of urban centers is guaranteed, precisely through the planning of natural spaces.

It is also urgent to enable the regulatory institution of a procedure to communicate to the European Commission the compensatory measures adopted within the framework of what is provided in Article 45.5 of Law 42/2007, of 13 December.

Likewise, it is necessary to introduce modifications in Law 22/2011, of 28 July, on Waste and Contaminated Soils, with the aim of simplifying and reducing the administrative burdens that caused ambiguity, uncertainty, and insecurity in the application of the norm. This must be resolved with the greatest speed. Likewise, to eliminate indeterminacy and legal insecurity, it was indispensable to delimit the sanctioning powers of local entities in this matter, providing that they will exercise them regarding waste whose collection and management correspond to them.

In prevention of a potential drought situation, and without prejudice to the decisions that must be taken in that context, this royal decree-law anticipates and introduces a series of measures that aim to achieve a more adequate use of water, through effective and coordinated management in which the principle of unitary basin management is preserved as a fundamental principle.

With the aim of rationalizing the management and use of water, in line with Directive 2000/60/EC of 23 October 2000, the Water Framework Directive, the groundwater bodies and their good status are regulated. The regime introduced in this royal decree-law allows reacting quickly to problems detected in groundwater bodies as well as greater flexibility to manage water availability in bodies that have an action plan.

In the same line, this royal decree-law incorporates measures that incentivize, as an optional mechanism, the transformation of private water use rights into concessionary rights, with the objective, among others, of facilitating and improving the management of unfavorable meteorological and hydrological episodes.

A specific provision is incorporated for the transfer of rights in the territorial scope of the Special Plan of Alto Guadiana, whose urgent application prevents further deterioration of the aquifer and allows maintaining the sustainability of derived agricultural installations and a reorganization of water use rights tending towards the environmental recovery of the aquifers.

On the other hand, this royal decree-law reinforces the sanctioning power in the matter of waters, essential to guarantee the correct application of substantive legislation. This was absolutely necessary and urgent following the partial nullity declaration of Order MAM/85/2008, of 16 January, which establishes the technical criteria for the valuation of damages to the hydraulic public domain and the norms on sampling and analysis of wastewater discharges, by the judgment of the Supreme Court (Contentious-Administrative Chamber), of 4 November 2011, issued in appeal no. 6062/2010. In this way, the general criteria that will be taken into account in the valuation of the damage caused to the hydraulic public domain, determinants for qualifying the offense, are incorporated into the consolidated text of the Water Law, without prejudice to subsequent regulatory development. In short, the exercise of the sanctioning power is guaranteed with full respect for the principle of legality (Article 25 of the Constitution), in its double aspect of legal reservation and typicity.

Royal Decree-Law 12/2011, of 26 August, added a fourteenth additional provision to the consolidated text of the Water Law, which enabled certain Autonomous Communities to exercise powers of police over the hydraulic public domain in intercommunity basins, as well as to process the procedures resulting from their actions up to the proposal for resolution. Therefore, it is necessary to avoid that with this legal reform the principle of unitary management of intercommunity hydrographic basins, elevated to a constitutional principle by the Constitutional Court in its judgments 227/1988, 161/1996, and 30 and 32/2011, may be affected. And to address the normative developments on this matter that the Autonomous Communities enabled by that additional provision have carried out or may carry out.

Likewise, Article four stems from Commission Regulation (EU) No 1210/2011 of 23 November 2011, amending Regulation (EU) No 1031/2010 (Auctioning Regulation), in particular with the aim of determining the volume of greenhouse gas emission rights to be auctioned before 2013. That regulation establishes that a total volume of 120 million greenhouse gas emission rights must be auctioned in 2012 across the European Union. In Annex I of the regulation, where the volume to be auctioned by each Member State is broken down, it is established that Spain will be required to auction in 2012 the figure of 10,145,000 rights. The work for the contracting of the common transitional platform, where the auctions will take place until the definitive platform has been designated, is very advanced, with auctions estimated to begin immediately.

In this sense, the modifying Article four of Law 24/1988, of 28 July, on the Securities Market, responds to the need that, in accordance with Article 43 of the Auctioning Regulation, Member States ensure that national measures through which Articles 14 and 15 of Directive 2003/6/EC on insider dealing and market manipulation are transposed are applied in relation to persons responsible for non-compliance with Articles 37 to 42 of the Regulation, which establish the regime applicable to market abuse regarding products auctioned other than financial instruments, in relation to auctions held within their territory or outside it. Consequently, it is necessary to develop the regulation that allows financial entities to participate in auctions on their own account or on behalf of clients, invest the National Securities Market Commission with supervisory, inspection, and sanctioning powers in relation to conduct relating to market abuse, establish the infringements applicable to this conduct, as well as introduce the duties of cooperation of the National Securities Market Commission with other competent authorities to guarantee the regime provided for market abuse in operations with spot contracts.

In short, the adoption of the modification of Law 24/1988, of 28 July, on the Securities Market contemplated in this royal decree-law responds to the need to have Spanish financial legislation adapted to the imminent start of rights auctions. It is for this reason that the adoption of such a measure requires resorting to the royal decree-law procedure, meeting the requirements of Article 86 of the Spanish Constitution regarding its extraordinary and urgent necessity.

In virtue thereof, making use of the authorization contained in Article 86 of the Spanish Constitution, on the proposal of the Minister of Agriculture, Food and Environment and after deliberation of the Council of Ministers in its meeting of 4 May 2012,

I HEREBY ORDER:

Article one. Modification of the consolidated text of the Water Law approved by Royal Legislative Decree 1/2001, of 20 July. The Royal Legislative Decree 1/2001, of 20 July, is modified as follows:

One. Paragraph f) of Article 28 is modified, which shall read as follows: "f) Declare groundwater bodies at risk of not achieving good quantitative or chemical status and the measures to correct trends that endanger good status through the approval of the recovery action program, in accordance with Article 56, without prejudice to those that may correspond to other public administrations."

Two. Article 56 is modified, which shall read as follows: "Article 56. Groundwater bodies at risk of not achieving good quantitative or chemical status.

1. The Governing Board, without the need for consultation with the Water Council, may declare that a groundwater body is at risk of not achieving good quantitative or chemical status; in this case, the following measures shall be carried out: a) Within six months, the basin agency shall constitute a users' community if one does not exist, or entrust its functions temporarily to an entity representing concurrent interests. b) After consulting with the users' community, the Governing Board shall approve within a maximum period of one year, from the date of the declaration, an action program for the recovery of the good status of the water body, which shall be included in the measures program referred to in Article 92 quater. Until the approval of the action program, extraction limitations as well as measures to protect the quality of groundwater may be adopted as precautionary measures.
2. The action program shall order the extraction regime to achieve rational exploitation of resources in order to achieve good status of groundwater bodies, and protect and improve associated ecosystems, for which it may, among other measures: a) Establish the substitution of pre-existing individual intakes by community intakes, transforming, if applicable, individual titles with their inherent rights into a collective one that must comply with the provisions of the action program. b) Provide for the contribution of external resources to the groundwater body; in that case, it shall include criteria for the joint exploitation of resources existing in the body and external resources. c) Include a perimeter within which it will not be possible to grant new groundwater concessions unless the holders of pre-existing ones are constituted as users' communities, in accordance with the provisions of Chapter IV of Title IV and taking into account what is provided in the seventh additional provision. d) Determine protection perimeters for groundwater bodies in which authorization will be necessary to carry out infrastructure works, extraction of aggregates, or other activities and installations that may affect them, without prejudice to other authorizations necessary according to the relevant sectoral legislation. Such delimitation and conditions shall bind the elaboration of planning instruments as well as the granting of licenses by the public administrations competent in land use and urban planning.
3. The action program shall contemplate the conditions under which the established limitations may be temporarily exceeded, allowing extractions greater than the available resources of a groundwater body when compliance with environmental objectives is guaranteed.
4. When, as a consequence of the application of the action program, the status of the groundwater body improves, the basin agency, ex officio or at the request of a party, may progressively reduce the limitations of the program and increase, proportionally and equitably, the volume that can be used, taking into account, in any case, that the permanence of the general environmental objectives provided for in Articles 92 and following is not put at risk."

Three. Paragraph one of Article 111 bis is modified, which shall read as follows: "1. The competent public administrations, by virtue of the principle of cost recovery and taking into account long-term economic projections, shall establish appropriate mechanisms to pass on the costs of services related to water management, including environmental and resource costs, to different end users."

Four. Paragraph three of Article 111 bis is modified, which shall read as follows: "3. For the application of the cost recovery principle, the social, environmental, and economic consequences, as well as the geographical and climatic conditions of each territory and the affected populations shall be taken into account, provided that this does not compromise the purposes or the achievement of the established environmental objectives. By resolution of the competent Administration, which in the scope of the General State Administration corresponds to the Minister of Agriculture, Food and Environment, exceptions to the principle of cost recovery may be established for certain uses, taking into account the same consequences and conditions mentioned, and without, in any case, compromising the purposes or the achievement of the corresponding environmental objectives. To this end, basin agencies shall issue, within a period of three months, as a mandatory and prior step to the resolution to be adopted, a reasoned report that, in any case, justifies that neither the purposes nor the environmental achievements established in the respective hydrological planning are compromised."

Five. Paragraph one of Article 117 is modified, which shall read as follows: "1. The aforementioned offenses shall be regulated as minor, less serious, serious, or very serious, depending on their impact on the order and use of the hydraulic public domain, their significance regarding the safety of persons and property, and the circumstances of the responsible party, their degree of malice, participation, and benefit obtained, as well as the deterioration produced in the quality of the resource, and may be sanctioned with the following fines: Minor offenses, fine of up to 10,000.00 euros. Less serious offenses, fine of 10,000.01 to 50,000.00 euros. Serious offenses, fine of 50,000.01 to 500,000.00 euros. Very serious offenses, fine of 500,000.01 to 1,000,000.00 euros."

Six. A new paragraph two is introduced in Article 117, which shall read as follows: "2. Generally, for the valuation of damage to the hydraulic public domain and hydraulic works, their economic value shall be weighted. In the case of damage to water quality, the cost of treatment that would have been necessary to avoid the contamination caused by the discharge and its hazard shall be taken into account. All of this, in accordance with what is established by regulation."

Seven. Paragraphs two and three of Article 117 become paragraphs three and four, respectively.

Eight. Paragraph one of the seventh additional provision is repealed.

Nine. The fourteenth additional provision is repealed.

Ten. A new fourteenth additional provision is introduced, which shall read as follows: "Fourteenth Additional Provision. Transfer of rights in the scope of the Special Plan of Alto Guadiana.

1. Holders of water uses, registered in the Water Register, in sections A and C, or noted in the Catalog of Private Waters, in the scope of the Special Plan of Alto Guadiana and subject to its validity, may transfer them irreversibly and in their entirety to other holders of uses, which shall be acquired through the corresponding concession granted by the basin agency in accordance with the procedure established in Royal Decree 13/2008, of 11 January, approving the Special Plan of Guadiana, and subject to the following prescriptions: a) The volume of water granted shall be a percentage of the volume subject to transmission. That percentage shall be determined taking into account the technical and environmental conditions that apply and, if applicable, linked to the action program for the recovery of the good status of the water body. b) When the use to which the water is destined is irrigation, the surface area already recognized for the transferee shall not be increased. c) They shall be granted for a period ending on 31 December 2035, with the concessionaire having preference at that moment to obtain a new concession.
2. The transfer of rights under the terms established in the previous paragraph may be carried out without conveyance infrastructure when the transferor and the transferee belong to the same groundwater body.
3. Exceptionally, new concessions may be granted to holders of agricultural and livestock operations, which meet the conditions established in the action program, if the applicant definitively acquires, as provided in paragraph 1 of this additional provision, the total volume required plus the percentage fixed by the Guadiana River Basin Authority."

Eleven. A new fifteenth additional provision is introduced, which shall read as follows: "Fifteenth Additional Provision. References to overexploited aquifers. References in the articles of this Law to overexploited aquifers shall be understood as referring to groundwater bodies at risk of not achieving good quantitative or chemical status."

Twelve. A new third bis transitional provision is introduced, which shall read as follows: "Third Bis Transitional Provision. Common provisions for the application of paragraph three of transitional provisions second and third.

1. For the purposes of applying paragraph three of transitional provisions second and third, a modification of the conditions or the use regime shall be considered, among others, actions that imply a variation in the depth, diameter, or location of the well, as well as any change in use, location, or variation of surface area over which the resource is applied in the case of irrigation uses.
2. The concession referred to in transitional provisions second and third in their third paragraphs shall be granted, at the request of a party, without a project competition procedure; it shall require the report of compatibility with the Hydrological Plan and that of the competent Administration depending on the use to which it is destined; it shall be subject to public information and, in case of a Users' Community, a report shall be requested from it.
3. The concession to be granted shall have the following characteristics: a) The term of the concession shall not be less than that established in its inscription in section C of the Water Register, with the concessionaire having preference at that moment to obtain a new concession. b) It shall reflect the characteristics with which the use is included in Section C of the Water Register of the basin, with the exception of the characteristics subject to modification that motivated the start of the procedure, and prior verification of their adequacy to reality by the basin agency.
4. In the case that the concession refers to groundwater bodies declared at risk of not achieving the good status objectives referred to in Article 56, the concession shall be subject to the limitations established in the action program, or in its absence, to the precautionary measures relating to extraction or protection of groundwater quality that are established, if applicable.
5. When the modification of the conditions or use regime has not been communicated by its holder to the basin agency for authorization, without prejudice to the application of the sanctioning procedure provided for, the basin agency shall require the...