Draft Royal Decree amending Annexes I and II of Law 21/2013, of December 9, on environmental assessment

On October 15, 2021, the Ministry for the Ecological Transition and the Demographic Challenge (MITECO) launched for public consultation the Draft Royal Decree amending Annexes I and II of the Environmental Assessment Act (Law 21/2013, LEA) in order to adapt the transposition of European Directive 2011/92 to our legal system. As you know, it is Annexes I and II of Law 21/2013, of December 9, that regulate projects subject to environmental assessment ordinary and simplified, respectively.

The new standard seeks to increase environmental protection and legal certainty, since the number of projects in need of environmental impact assessment is increasing and guarantees that projects below legal thresholds will not have a significant impact in the environment that justifies its environmental assessment.

STRUCTURE

The standard is structured in a single item, divided into Two sections, one for each of the Annexes I and II of the LEA that are amended, and is completed with a transitory provision And a final provision relating to the entry into force, which will be the day following its publication in the Official State Gazette.

• Unique item. One. It includes the new wording of the Annex I, which regulates projects subject to ordinary environmental impact assessment. In this Annex, the modifications have been more limited, although Are certain epigraphs suitable to adapt them to current sectoral regulations, to technological advances and, above all, to maintain consistency with the new wording of some sections of Annex II.
• Unique item. Two.
  • It includes the new wording of the Annex II which regulates projects that must be submitted to simplified environmental impact assessment and It concentrates most of the news of this Royal Decree. Most of the headings have been given a new wording that either removes the threshold and assumes the drafting of the Directive, or maintains a threshold motivated by the concurrence of the criteria in Annex III of the Directive.
  • For those projects that they were not subdued by finding each other below the thresholds, but they are located in areas of special environmental sensitivity or affect the water environment in a special way, the regulation of some criteria to determine if they should be submitted, at least, to a simplified environmental impact assessment.
• Transitional provision. It establishes that for projects whose environmental evaluation was initiated prior to the entry into force of this Royal Decree, the modifications introduced by this regulation will not apply.

NEW SCENARIO

Annexes I and II of the LEA would now cover 90 types of projects, instead of the 81 currently available, the vast majority of them without any type of threshold, as in Directive 2011/92/EU, thus increasing legal certainty and the level of environmental protection in order to promote sustainable development.

Specifically, within the field of renewable energy:

• Annex I. Group 3 Energy industry.
  • Paragraph i) relating to wind projects, which is worded: “i) Installations for the use of wind power for energy production (wind farms) that have 10 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”; compared to the current heading of 50 or more wind turbines, taking into account technical evolution with more powerful machines.
  • Paragraph j) relating to solar energy projects, which is worded:”j) Installations for the production of electrical energy from solar energy intended for sale to the grid that occupy more than 100 ha of surface”. Therefore, the part” is deletedthat are not located on the roofs or roofs of existing buildings” of the current standard.
  • In addition, a new heading, k, is added, relating to facilities for power generation hydroelectric that affect natural or heavily modified bodies of water by capturing or returning flows or interrupting the longitudinal continuity of the channels, including reversible power plants and the rehabilitation of old power plants.
• Annex II. Group 4 Energy industry.
  • Highlight the changes introduced in section b, relating to power lines, worded as follows:”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 have a length greater than 3 km, including their associated substations, as well as below the above thresholds when they meet general criteria 1 or 2, or do not include the preventive measures established in Royal Decree 1432/2008, of 29 August, which establishes measures for the protection of avifauna against collision and electrocution in high-voltage power lines, or they run less than 200 m from the town or 100 m from isolated houses somewhere along their route, unless they run entirely underground on built-up land”. Therefore, the threshold of 3 km is maintained, but for projects below it, they must undergo a simplified environmental impact assessment when they meet criteria 1 and 2 or because of distances to towns and/or isolated houses.
  • In addition, a new heading, c, is introduced relating to repowering lines, remaining worded:”c) Repowering existing electric power transmission lines when they meet general criteria 1 or 2”.
  • In the case of wind farms the threshold of 100 kW of power is eliminated in accordance with the Directive. The amendment to heading g (h after the modification) reads as follows:”h) Installations for the use of wind force for energy production (wind farms) not included in Annex I”.
  • Concerning the projects of solar energy Lower the threshold from 10 to 5 ha. Below that surface, they must undergo a simplified environmental impact assessment when they meet criteria 1 and 2. The heading j (i before the modification) is worded as follows:”j) Installations for the production of electrical energy from solar energy not included in Annex I, which occupy an area greater than 5 ha, as well as those that occupy an area of less than 5 ha and meet general criteria 1 or 2”.

Finally, the general criteria 1 and 2 for the submission to simplified environmental assessment of projects located below the thresholds established in Annex II:

1. Projects in protected areas Natura 2000 Network, protected natural areas, wetlands of international importance (Ramsar), natural sites on the World Heritage List, 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 core or buffer areas of UNESCO Biosphere Reserves. Projects that, in accordance with the zoning and regulatory regulations of the space, are expressly allowed in it 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.
2. Overlapping projects with formally declared green infrastructure elements for their role as ecological corridors or connectors, critical areas of plans for the recovery or conservation of threatened species or other areas important for the conservation of species under special protection, habitats of community interest that have an unfavorable state of conservation in the biogeographic unit, or areas declared by the competent authorities for the protection of species subject to fishing or shellfish.

In short, there are numerous changes envisaged in the regulatory regulations for projects subject to environmental impact assessment.

This is only a brief summary, so if you want more information you can consult the available documentation on the draft Royal Decree amending Annexes I and II of Law 21/2013, of December 9, on environmental assessment, through this link: https://www.miteco.gob.es/es/calidad-y-evaluacion-ambiental/temas/evaluacion-ambiental/IP MODIFICATION OF ATTACHMENTS LEA.aspx.

The project is subject to public information and to a hearing To the sectors affected until November 4, 2021. Within this period, citizens, organizations and associations that consider it can make their contributions.

In any case, there will be an update with the final text. Meanwhile, we are preparing for this new scenario in which an increase in the number of projects in need of environmental impact assessment and willing to analyze their possible impact on the environment.