Amendment to Annexes I, II and III of Law 21/2013 on Environmental Assessment

Today, Wednesday, June 14, 2023, the Official State Gazette published the Royal Decree 445/2023, of 13 June, amending annexes I, II and III of Law 21/2013, of 9 December, on environmental assessment.

As the name of this Royal Decree indicates, its main objective is to modify annexes I, II and III of Law 21/2013, of December 9, which regulate projects subject to ordinary and simplified environmental assessment, respectively, in order to ensure an adequate transposition into our legal system of Directive 2011/92/EU of the European Parliament and of the Council, of December 13, 2011, relating to the evaluation of the impact of certain public and private projects on the environment, as well as a greater coherence and updating of its contents, in accordance with the experience gained during the years that the law was in force.

Los main changes What is introduced by this Royal Decree can be summarized as follows:

• Annex I, which regulates projects subject to ordinary EIA: not so much in terms of the thresholds already established by the previous standard, but rather in the updating of certain headings.
• Annex II, which regulates projects subject to simplified EIA: it concentrates most of the new features. A revision of the thresholds is being carried out, as well as a new wording to certain sections. Certain projects that, even if they are below the new thresholds, meet the criteria introduced by this new standard in Annex III, which will be discussed in greater detail below, will also be subject to simplified EIA.
• Annex III: the criteria are modified to determine if an Annex II project should undergo ordinary EIA and new criteria are included to determine if a project below the thresholds established in Annex II should undergo simplified EIA.

In accordance with the new wording of Annex III, section B, those projects below the thresholds established in Annex II but that meet the criteria established in this section will be subject to simplified EIA. This refers to projects located in areas of special environmental sensitivity or that have a special effect on the water environment.

This royal decree will come into force the day following its publication in the Official State Gazette, therefore, June 15, 2023.

Therefore, it will entail a new regulation for the submission of projects to environmental impact assessment.

In accordance with the single transitional provision:

• Projects that, with the previous wording of the Act, were already subject to EIA would continue the process according to the previous regulations if they had already submitted the EIA request or request for a scope document to the substantive body before June 15, 2023.
• Those projects that, in accordance with the previous wording of the Act, were not within the scope of its application and that had initiated the administrative authorization process before the substantive body before June 15, 2023, will be the corresponding substantive body that, after carrying out the relevant checks and corrections, will refer to the environmental body, if it deems it necessary, for the corresponding processing.

Next, what is contained in Law 21/2013 in force so far is compared with the new amendments to Royal Decree 445/2023, and which may entail changes in the processing of renewable energy projects and associated infrastructures and green hydrogen plants.

ANNEX I

“Projects subject to the ordinary environmental assessment regulated in Title II, Chapter II, Section 1”

Law 21/2013 Royal Decree 445/2023 Group 3. Energy industry.

g) Construction of electric power transmission lines with a voltage equal to or greater than 220 kV and a length greater than 15 km, unless they run entirely underground through built-up land, as well as their associated substations.

Group 3. Energy industry.

g) Construction of power lines with a voltage equal to or greater than 220 kV and a length greater than 15 km, unless they run entirely underground through built-up land, as well as their associated substations. For these purposes, the overhead contact lines of railway infrastructures are not considered electrical power transmission lines.

Modifications: all lines with these thresholds are included without differentiation, with the exception of the overhead contact lines of railway infrastructures that would be included in Group 7, Infrastructure Projects.Law 21/2013 Royal Decree 445/2023 Group 3. Energy industry.

i) Installations for the use of wind power for energy production (wind farms) that have 50 or more wind turbines, or that have more than 30 MW or that are less than 2 km from another wind farm in operation, under construction, with administrative authorization or with an environmental impact statement.

Group 3. Energy industry.

Paragraph i)

It would be the same

No changes are introduced.Law 21/2013 Royal Decree 445/2023 Group 3. Energy industry.

j) Installations for the production of electrical energy from solar energy intended for sale to the grid, that are not located on the roofs or roofs of existing buildings and that occupy more than 100 ha of surface.

Group 3. Energy industry.

j) Installations for the production of electrical energy from solar energy, that are not located on roofs and roofs and that occupy more than 100 ha of surface.

Amendments: the ordinary EIA would apply to all solar plants on land of more than 100 ha, both those intended for sale to the grid and for self-consumption.Law 21/2013 Royal Decree 445/2023 It does not appear collected.Group 3. Energy industry.

l) Stand-alone energy storage facilities with technology other than electrochemistry.

Amendments: energy storage was not included in the old legislation. A new section appears, so the projects included in it are subject to ordinary EIA.Law 21/2013 Royal Decree 445/2023 Group 5. Chemical, petrochemical, textile and paper industries.

a) Installations for the industrial-scale production of substances, through chemical or biological transformation, of the following products or product groups:

2nd Inorganic chemicals:

i. Gases and, in particular, ammonia, chlorine or hydrogen chloride, hydrogen fluoride or fluoride, carbon oxides, sulfur compounds, nitrogen oxides, hydrogen, sulfur dioxide, carbonyl dichloride.

Group 5. Chemical, petrochemical, textile and paper industries.

Section a.2.i.

It would be the same

No changes are introduced.Law 21/2013 Royal Decree 445/2023 Group 9. Other projects.

a) The following projects when developed in Protected Natural Areas, Natura 2000 Network and Areas protected by international instruments, in accordance with the regulation of Law 42/2007, of December 13, on Natural Heritage and Biodiversity:

6. Lines for the transmission of electrical energy whose layout affects the natural areas considered in this article with a length greater than 3 km, excluding those that cross urban areas.

7th Wind farms that have more than 10 wind turbines or 6 MW of power.

18. Installations for the production of electrical energy from solar energy intended for sale to the grid, that are not located on the roofs or roofs of existing buildings and that occupy an area of more than 10 ha.

Group 9. Other projects.

a) The following projects when developed in protected areas of the Natura 2000 Network, in protected natural areas, in wetlands of international importance (Ramsar), in natural sites on the World Heritage List, in protected areas or areas of the Conventions for the protection of the marine environment of the Northeast Atlantic (OSPAR) or for the protection of the marine environment and the Mediterranean coastal region (ZEPIM) and in core areas of UNESCO Biosphere Reserves.

Projects that are expressly permitted in the zoning and regulatory regulations of the space are not understood to be included. To prove that a project is not likely to cause appreciable adverse effects on one of these spaces, the promoter may request a report from the competent body responsible for the management of that space.

10. Power lines with a length greater than 3 km, excluding those that cross built-up areas.

11th Wind farms.

20th Installations for the production of electrical energy from solar energy intended for sale that occupy an area of more than 10 ha.

Modifications: those projects that affect more protection figures than those established to date are included. All lines that meet these criteria are included without distinction. All wind farms that fall within the indicated protection figures are included. It includes all solar plants intended for sale to the grid, located on the ground or on roofs/roofs, of more than 10 ha and that are within the mentioned protection figures. These projects will be subject to ordinary EIA.ANNEX II

“Projects subject to simplified environmental assessment regulated in Title II, Chapter II, Section 2”

Law 21/2013 Royal Decree 445/2023
Group 4. Energy industry.

b) Construction of lines for the transmission of electrical energy (projects not included in Annex I) with a voltage equal to or greater than 15 kV, which are longer than 3 km, unless they run entirely underground through built-up land, as well as their associated substations.

Group 4. Energy industry.

b) Construction of power lines (projects not included in Annex I) with a voltage equal to or greater than 15 kV, which have a length greater than 3 km, including their associated substations, as well as below the previous thresholds when they meet general criteria 1 or 2, or do not include the preventive measures established in Royal Decree 1432/2008, of August 29, which establishes measures for the protection of avifauna against collision and electrocution in high voltage power lines, or run less than 200 m from population or 100 m of isolated houses somewhere along their route, unless they run entirely underground on built-up land.

Modifications: All lines with these thresholds are included without differentiation. Also included in this section are lines for lower thresholds (with a voltage of less than 15 kV or a length of less than 3 km) that meet the criteria indicated, in short:

· With the criteria of Annex III, section B.

· Airlines that do not include the measures established in RD 1432/2008.

· That they run less than 200 m from the town or 100 m from isolated houses.

Law 21/2013 Royal Decree 445/2023 It doesn't appear collected.

Group 4. Energy industry.

c) Repowering existing electric power transmission lines when they meet general criteria 1 or 2.

Amendments: This type of project was not included in the old legislation. A new section appears, so projects that meet the criteria in this section are subject to simplified EIA.Law 21/2013 Royal Decree 445/2023 Group 4. Energy industry.

g) Installations for the use of wind power for energy production. (Wind farms) not included in Annex I, except those intended for self-consumption that do not exceed 100 kW of total power.

Group 4. Energy industry.

h) Installations for the use of wind force for energy production (wind farms) not included in Annex I.

Amendments: all wind farms not listed in Annex I are included, both intended for sale to the grid and for self-consumption, which will be subject to simplified EIA.Law 21/2013 Royal Decree 445/2023 Group 4. Energy industry.

h) Installations for the production of energy in the marine environment.

Group 4. Energy industry.

i) Installations for energy production in the marine environment and in transition waters.

Modifications: energy production projects in transition waters are included, which will be subject to simplified EIA.Law 21/2013 Royal Decree 445/2023 Group 4. Energy industry.

i) Installations for the production of electrical energy from solar energy, intended for sale to the grid, not included in Annex I or installed on roofs or roofs of buildings or on urban land and that occupy an area greater than 10 ha

Group 4. Energy industry.

j) Installations for the production of electrical energy from solar energy not included in Annex I, nor installed on roofs or roofs of buildings, as well as those that occupy an area of less than 5 ha unless they meet general criteria 1 or 2.

Modifications: all solar plants on land larger than 5 ha are included, both those intended for sale to the grid and for self-consumption, as well as solar plants on land smaller than 5 ha that meet the criteria of Annex III, section B, which will be subject to simplified EIA.Law 21/2013 Royal Decree 445/2023 It doesn't appear collected.

Group 4. Energy industry.

n) Stand-alone energy storage through electrochemical batteries or with any technology of a hybrid nature with electrical energy installations.

Amendments: This type of project was not included in the old legislation. A new section appears, so projects that meet the criteria in this section are subject to simplified EIA.Law 21/2013 Royal Decree 445/2023 It doesn't appear collected.

Group 4. Energy industry.

i) Industrial facilities for the production of electrolytic, photoelectrolytic or photocatalytic hydrogen from renewable sources.

Amendments: This type of project was not included in the old legislation. A new section appears, so projects that meet the criteria in this section are subject to simplified EIA.Law 21/2013 Royal Decree 445/2023

Group 10. The following projects are being developed in Protected Natural Areas, Natura 2000 Network and Areas protected by international instruments, in accordance with the regulation of Law 42/2007, of December 13, on Natural Heritage and Biodiversity.

c) Any project not included in this Annex II that involves a change in land use on an area equal to or greater than 10 ha.

It is not collected. Modifications: projects that were previously included in this group are now included in their corresponding headings.

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