Update to the Public Hydraulic Domain Regulations

On August 31, 2023, it was published in BOE Royal Decree 665/2023, of July 18, amending the Public Hydraulic Domain Regulation (RDPH), approved by Royal Decree 849/1986, of April 11 and others.

Among the new features of this latest amendment to the RDPH stands out the reduction of the administrative burdens of a multitude of small actions carried out in river environments, either in the police area and also in the public hydraulic domain (DPH), submitting to responsible declaration activities such as the cutting, pruning and removal of trees; the removal of debris; repair or maintenance works, certain infrastructures that do not involve changes in their section, etc.

These modifications are made in several articles, especially in articles 51 bis, and 52 for actions in the DPH and article 78 bis for actions in a police zone, which are complemented by, for example, article 70, which gives 10 years to use pastures in the DPH, or articles 73 and 74 bis, which establish the possibility of using the DPH for tree or agricultural plantations provided that the environmental values of the DPH are respected.

Amendments have also been introduced to the text of the RDPH with the objective of simplifying the administrative procedure related to the nautical activity of canoeing. To this end, the definition of this activity (considered as a special common use) has been introduced and articles 49 bis, 51, 51 bis and 55 have been amended.

Delving into the area of administrative simplification, the new article 253 bis establishes a simplified regime for the processing of low-level wastewater discharges (documentation must be provided to prove the adequate treatment of wastewater).

This amendment gives greater legal certainty to the neighbors in the cartographic delimitation works of the DPH to be carried out by basin organizations, establishing that technical cartographic delimitation studies must be submitted to public information and the content of the same must be transmitted to the municipalities (Article 240 ter) before proceeding with their approval.

In order to accelerate the resolution of concession files, constitution of user communities, cartographic delimitations, boundaries and discharges, among others, publications in the province's official bulletins and on the city council's bulletin board are replaced by publications in the Official State Gazette and on the web portal of the corresponding basin organization.

The obligation to submit technical documentation on paper and in several copies is eliminated, since there is a legal imperative to submit and relate to the administration electronically.

With regard to fees, the criteria are defined to determine when an occupation of the DPH occurs and when its use (Article 285) so that a common criterion is established.

Also noteworthy is the incorporation into the RDPH of the management of invasive alien species related to the aquatic environment, which until now were not included in this standard, now developed with the new article 77 bis.

With regard to water pollution by diffuse pollution, the amendment to the RDPH includes specific measures aimed at preventing water deterioration as a result of agricultural activity, which represents an important milestone in the protection of waters against diffuse sources of pollution (articles 260 bis and 260 ter).

The definition of protective perimeters for the collection of groundwater intended to supply populations and other areas of interest established in hydrological planning has been developed in a more exhaustive way, so as to improve drafting and incorporate articles 243 ter, 243 quater, 243 quinquies and 243 sexies

With regard to the assessment of the state of groundwater bodies, a complete review has been carried out of the previously established provisions on this matter established in the current RDPH, which can be classified into 5 blocks: measures to protect groundwater bodies declared at risk of not achieving good condition; criteria and administrative procedure for the establishment of protective perimeters mentioned above, as well as specific provisions to authorize the discharge of wastewater; measures of action in the face of occasional pollution episodes; and finally, criteria for assessing the damage caused by pollution and its connection with the sanctioning procedure.

Also noteworthy is the new chapter III of title III in the Public Hydraulic Domain Regulations, relating to the protection of groundwater, through articles 272, 272 bis, 272 ter, 272 quater and 273, which establish regulations against spot pollution.

On the other hand, a notable boost is given to the management of sanitation systems through the promotion of treatment at the source of rainwater runoff, by encouraging the use of sustainable urban drainage systems (Article 259 ter).

In the area of mapping the public domain and associated flood areas, important improvements have been made, such as the establishment of the procedure for generating mapping maps of the DPH and floodplain areas, in which public information is guaranteed to interested parties and the administrative procedure for reviewing and updating them, in coordination with a new inventory of public hydraulic assets.

Another essential element of this amendment is the creation of the inventory of public channels and lakes, lagoons and surface reservoirs of DPH (article 240 bis), which will be kept up to date conveniently. Establishing and publishing what DPH channels are is essential, both to protect them and to make citizens aware of the scope of action of basin organizations and that mechanisms can be established to ensure the correct processing of associated authorizations and concessions.

With regard to flood risk planning and management, in accordance with the revision and updating of flood risk management plans, this amendment develops and improves the existing regulatory regime, making certain adjustments regarding land use limitations in floodable areas.

The new article 14 ter establishes that in those cases in which there is no cartography of floodable areas prepared and published by public administrations, the promoters of the different actions will include the aforementioned cartography among the documentation of their file, which, in any case, must be validated both by the basin organization and by the competent authorities in land use and urban planning. In this regard, remember that at Ideas MedioAmbiental we have extensive experience in carrying out floodability studies. If you have requested a floodability study, do not hesitate to contact us and we will advise you.

This royal decree will enter into force twenty days after its publication.

Mirian Navarro, Environmental Assessment