Law 11/2012 of 19 December on Urgent Measures in Environmental Matters

OFFICIAL STATE GAZETTE
No. 305 Thursday, December 20, 2012 Sec. I. Page 86283
I. GENERAL PROVISIONS
HEAD OF STATE
15337 Law 11/2012, of December 19, on Urgent Measures in Environmental Matters.
JUAN CARLOS I
KING OF SPAIN
To all who see and understand this.
Know: That the General Courts have approved and I come to sanction the following Law.
PRELIMINARY STATEMENT
The constitutional right to enjoy an environment suitable 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 like 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 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 with urgency. This reform starts 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 rhetorical and normative excess that leads to atrophy; and it requires the establishment of clear and simple rules that protect the environment and promote development compatible and integrated into it. In short, environmental legislation must also be sustainable. In accordance with these objectives, Law 42/2007, of December 13, 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 spaces 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 Article 45.5 of Law 42/2007, of December 13. Likewise, it is necessary to introduce modifications in Law 22/2011, of July 28, 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. cve: BOE-A-2012-15337

OFFICIAL STATE GAZETTE
No. 305 Thursday, December 20, 2012 Sec. I. Page 86284 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 possible drought situation, and without prejudice to the decisions that must be taken in that context, this Law anticipates and introduces a series of measures that aim to achieve a more appropriate 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 October 23, 2000, Framework Directive on Water, the groundwater bodies and their good status are regulated. The regime introduced in this present 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 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 the Upper Guadiana, whose urgent application prevents further deterioration of the aquifer and allows maintaining the sustainability of derived agricultural installations and a reordering of water use rights tending towards the environmental recovery of the aquifers. On the other hand, this Law reinforces the sanctioning power in water matters, indispensable to guarantee the correct application of substantive legislation. This was absolutely necessary and urgent after the partial nullity declaration of Order MAM/85/2008, of January 16, which establishes the technical criteria for valuing 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 November 4, 2011, issued in appeal case no. 6062/2010. In this way, the general criteria that will be taken into account in valuing 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 August 26, added to the consolidated text of the Water Law an additional provision fourteenth that enabled certain Autonomous Communities to exercise powers of police over the hydraulic public domain in intercommunity basins, as well as for processing 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. In turn, Article four stems from Regulation (EU) No. 1210/2011 of the Commission, of November 23, 2011, amending Regulation (EU) No. 1031/2010 (Auction Regulation), particularly with the aim of determining the volume of greenhouse gas emission rights to be auctioned before 2013. That norm establishes that a total volume of 120 million greenhouse gas emission rights must be auctioned in 2012 throughout 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 assigned to auction in 2012 the figure of 10,145,000 rights. The work for contracting 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. cve: BOE-A-2012-15337

OFFICIAL STATE GAZETTE
No. 305 Thursday, December 20, 2012 Sec. I. Page 86285 In this sense, Article four, modifying Law 24/1988, of July 28, on the Securities Market, responds to the need that, in accordance with Article 43 of the Auction Regulation, Member States ensure that national measures transposing Articles 14 and 15 of Directive 2003/6/EC on insider dealing and market manipulation are applied in relation to persons responsible for non-compliance with Articles 37 to 42 of the Regulation, which establish the regime regarding market abuse applicable to products auctioned other than financial instruments, in relation to auctions held in their territory or outside it. Consequently, it is necessary to develop the legislation 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 these 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 July 28, on the Securities Market contemplated in this Law responds to the need to have Spanish financial legislation adapted to the imminent start of rights auctions.
Article one. Modification of the consolidated text of the Water Law approved by Royal Legislative Decree 1/2001, of July 20.
The Royal Legislative Decree 1/2001, of July 20, is modified as follows:
One. Paragraph c) of Article 28 is drafted as follows:
"c) Adopt agreements regarding disposal acts on the property of basin organizations."
Two. Paragraph f) of Article 28 is modified, which is drafted in the following terms:
"f) Declare groundwater bodies at risk of not reaching good quantitative or chemical status and the measures to correct trends that endanger the good status through the approval of the action program for recovery, in accordance with Article 56, without prejudice to those that may correspond to other public administrations."
Three. A paragraph 2 is added to Article 30, and the current paragraph 2 is renumbered as 3, which will have the following wording:
"2. Within the framework of paragraphs d and e of the previous paragraph, it will specially correspond:
a. Order the execution of agreements of the Governing Board and other collegiate bodies it presides over. b. Exercise the contracting powers proper to the organization.
c. Authorize expenses incurred from the organization's budget credits and order the corresponding payments.
d. Perform the head of personnel and services. cve: BOE-A-2012-15337

OFFICIAL STATE GAZETTE
No. 305 Thursday, December 20, 2012 Sec. I. Page 86286 e. Grant concessions and authorizations for the use of the hydraulic public domain and authorizations relating to the water and channel police regime, except those whose resolution corresponds to the Ministry of Agriculture, Food and Environment. f. Apply the regulations of the hydraulic public domain regulation in matters of water and channel police, including the sanctioning regime, within the limits of its competence. g. Resolve administrative appeals derived against resolutions of user communities and the basin organization itself, except those corresponding by their content to the Governing Board of the organization or the Ministry of Agriculture, Food and Environment. h. Coordinate and direct the application of what is provided in Title VI of this Law regarding levies and tariffs.
i. Authorize the drafting and definitively approve projects of works, installations, and supplies to be carried out from the organization's own funds.
j. Exercise expropriation functions in water matters, under the terms provided in current legislation. k. Inform the General Directorate of Water on the social effects of projects corresponding to works entrusted to the organization by the Ministry of Agriculture, Food and Environment.
l. Inform on proposals for appointment and dismissal of heads of administrative units directly dependent on the Presidency of basin organizations."
Four. Article 56 is modified, which is drafted in the following terms:
"Article 56. Groundwater bodies at risk of not reaching 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 reaching a good quantitative or chemical status; in this case, the following measures will be carried out:
   a) Within six months, the Basin Organization will constitute a user community if it does not exist, or entrust its functions temporarily to an entity representing concurrent interests. b) After consultation with the user community, the Governing Board will approve within a maximum period of one year, from the declaration, an action program for the recovery of the good status of the water body, which will 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 will order the extraction regime to achieve rational exploitation of resources in order to reach a 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. cve: BOE-A-2012-15337

OFFICIAL STATE GAZETTE
No. 305 Thursday, December 20, 2012 Sec. I. Page 86287 b) Provide for the contribution of external resources to the groundwater body; in that case, it will include criteria for the joint exploitation of resources existing in the body and external ones. c) Include a perimeter in which it will not be possible to grant new groundwater concessions unless the holders of pre-existing ones are constituted as user communities, in accordance with Chapter IV of Title IV and taking into account what is provided in the seventh additional provision. d) Determine protection perimeters of 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 sectoral legislation in question. Such delimitation and conditions will bind in the elaboration of planning instruments as well as in the granting of licenses by public administrations competent in territorial and urban planning.
3. The action program will contemplate the conditions under which 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 applying the action program, the status of the groundwater body improves, the basin organization, 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 in Articles 92 and following is not put at risk."
Five. Paragraph one of Article 111 bis is modified, which is drafted in the following terms:
"1. Competent public administrations, by virtue of the principle of cost recovery and taking into account long-term economic projections, will establish appropriate mechanisms to pass on the costs of services related to water management, including environmental and resource costs, to different end users."
Six. Paragraph three of Article 111 bis is modified, which is drafted in the following terms:
"3. For the application of the cost recovery principle, social, environmental, and economic consequences, as well as the geographical and climatic conditions of each territory and affected populations will be taken into account, provided that this does not compromise the purposes or the achievement of 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 cost recovery principle may be established for specific uses, taking into account the same consequences and conditions mentioned, and without, in any case, compromising the purposes or the achievement of corresponding environmental objectives. To this end, basin organizations will issue, within a period of three months, as mandatory and prior 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." cve: BOE-A-2012-15337

OFFICIAL STATE GAZETTE
No. 305 Thursday, December 20, 2012 Sec. I. Page 86288 Seven. Paragraph seven of Article 114 is modified, which is drafted in the following terms:
"7. The basin organization, in accordance with what is established in this article, will determine the amounts of the regulation levy and the water use tariff of the current year, issuing the corresponding settlements before the last day of the same year."
Eight. Paragraph one of Article 117 is modified, which is drafted in the following terms:
"1. The aforementioned offenses will be reglamentarily classified 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 up to 10,000.00 euros.
Less serious offenses, fine from 10,000.01 to 50,000.00 euros.
Serious offenses, fine from 50,000.01 to 500,000.00 euros.
Very serious offenses, fine from 500,000.01 to 1,000,000.00 euros."
Nine. A new paragraph two is introduced in Article 117, which is drafted in the following terms:
"2. Generally, for the valuation of damage to the hydraulic public domain and hydraulic works, their economic value will be weighted. In the case of water quality damages, the cost of treatment that would have been necessary to avoid the contamination caused by the discharge and its danger will be taken into account. All of this, in accordance with what is reglamentarily established." Ten. Paragraphs two and three of Article 117 become paragraphs three and four, respectively. Eleven. Paragraph one of the seventh additional provision is repealed. Twelve. The fourteenth additional provision is repealed. Thirteen. A new fourteenth additional provision is introduced, which is drafted in the following terms:
"Fourteenth Additional Provision. Transfer of rights and transformation of uses by legal provision into concessions, in the scope of the Upper Guadiana.

1. Holders of groundwater uses, registered in the Water Register, in sections A and C, or noted in the Catalog of Private Waters, in the scope defined by the Special Plan of the Upper Guadiana, approved by Royal Decree 13/2008, of January 11, and subject to its validity, may transmit them, irreversibly and in their entirety, to other holders of uses, which will be acquired through the corresponding concession granted by the Basin Organization in accordance with the procedure established in the aforementioned Royal Decree 13/2008, of January 11, and subject to the following prescriptions:
   a) The volume of water granted will be a percentage of the volume subject to transmission. That percentage will be determined taking into account the technical and environmental conditions that concur and, if applicable, linked to the action program for the recovery of the good status of the water body. cve: BOE-A-2012-15337

OFFICIAL STATE GAZETTE
No. 305 Thursday, December 20, 2012 Sec. I. Page 86289 b) When the use to which the water is destined is irrigation, the irrigated surface already recognized for the transferor cannot be increased. c) They will be granted for a term ending on December 31, 2035, with the concessionaire having preference at that moment to obtain a new concession. d) In the procedure, the project competition procedure will be dispensed with. e) The period for processing the concession request file will be 9 months.
2. Exceptionally, holders of groundwater concessions whose rights are registered in section A of the Water Register may be authorized to irreversibly transfer part of the rights they hold to other holders of uses, provided that the volume of water to which they renounce is expressly declared and the extent of land to be left out of irrigation is unequivocally identified. This transmission will be carried out through the modification of characteristics of the transferor's concession and the granting of a concession for the transferee, files that will be processed obligatorily jointly.
3. The transfer of rights under the terms established in the two preceding paragraphs may be carried out without conveyance infrastructu