Drought in Spain leads to the introduction of water measures and modifications
Published on 13th Jul 2023
The measures introduced open the door to more options in the use of existing water, which can also be exploited by renewable energy projects
On 12 May 2023, Royal Decree-Law 4/2023 of 11 May was published in the Official State Gazette, adopting urgent agricultural and water measures in response to the drought and the worsening conditions in the primary sector resulting from the war in Ukraine and weather conditions, as well as measures to promote the use of land public transport by young people and to prevent occupational hazards during episodes of high temperatures (the "RD-l").
This regulation responds to the urgent need to adopt measures that guarantee the resilience and sustainability of agricultural and livestock farms, reaffirm food security and help to reinforce the economic growth path of our country, as well as mitigate and tackle the effects caused by the drought.
Among the most relevant issues, we highlight the regulation of reclaimed water, as a potential source of water for green hydrogen projects, or water rights transfer contracts, as a temporary and exceptional solution to the drought situation.
Royal Legislative Decree 1/2001, of 20 July 2001, approving the revised text of the Water Law (the "TRLA") briefly contemplated the possibility of reusing water from a water development. The RD-l amends the TRLA, which now contains a broad regulation on the reuse of treated water, which is now called reclaimed water. According to the new article 107 of the TRLA, the reuse of treated water is understood as the use for a new private use, prior to its return to the hydraulic or maritime-terrestrial public domain, of water which, having been used by the person who derived it, has been subjected to a treatment that allows its quality to be adapted to the use to which it is to be put.
In order to be able to use reclaimed water, it will be necessary to obtain an administrative concession, or to modify the characteristics of an existing concession, which will be the case when the first user is interested in using reclaimed water and the use of reclaimed water is already provided for in its concession. The use of reclaimed water shall be compatible with the hydrological planning forecasts and shall require authorisation from the basin organisation, following a mandatory and binding report from the health authorities.
Regarding the production and supply of reclaimed water, it will be necessary to obtain an authorisation. As a relevant novelty, it is envisaged that the producer and supplier of reclaimed water may be different from the holder of the discharge authorisation, which means that any company may apply for authorisation to produce and supply reclaimed water generated by another company. This will make it possible to produce reclaimed water that can be used in industrial processes, such as the production of green hydrogen, allowing developers or any company to obtain authorisation to treat wastewater and use it in another industrial process. This is an advantage both for the holder of the discharge authorisation, as it saves the discharge control fee as the reclaimed water is not considered as a discharge, and for the producer of the reclaimed water, who can use water in their industrial process that was intended for discharge and treatment by the WWTPs, ensuring the availability of volumes outside of concessions. It should be noted that in the event of an application for authorisation to produce and supply reclaimed water, the holder of the discharge authorisation will be notified and will have preference in the granting of the production and supply authorisation.
The responsible parties and end users of reclaimed water shall draw up a Risk Management Plan for reclaimed water, which shall define the reuse system and identify the risks associated with production, supply and use and delimit the responsibility of each responsible party and end user for compliance with the plan.
The RD-l introduces extraordinary measures to alleviate the effects of the drought, although they are limited to the geographical demarcations of the Guadalquivir, Ebro and Duero rivers, and limited until 31 December 2023.
The RD-l temporarily modifies the conditions of use of the public water domain, allowing (i) the reduction or suspension of supply allocations that are necessary to rationalise the management and use of water resources; (ii) the modification of the priority criteria for the allocation of resources to the different uses of water, respecting in all cases the supremacy of use for supplying the population; (iii) impose the substitution of all or part of the concessionary flows for others of different origin and quality; (iv) modify the conditions set in the discharge authorisations; and (v) adapt the exploitation regime of hydroelectric developments to the needs in order to make them compatible with other uses.
Finally, we would highlight the provision relating to the possibility of the Ministry of Ecological Transition and Demographic Challenge authorising, on a temporary and exceptional basis, transfers of water use rights that do not respect the order of preference defined in the hydrological plan or in article 60.3 of the Consolidated Text of the Water Act, provided that the ecological flow regime is maintained and the supply of the population is guaranteed. This is an exception to the regime of transfers already provided for in articles 67 and following of the TRLA, which were limited exclusively to those that could be carried out between holders of rights of equal or higher rank. This opens the door to potentially admitting transfers of water for industrial uses for the production of electricity or other industrial uses by holders of rights of use of higher preference.
Should you wish to know more about RD-l developments or any other regulatory issues in the sector, please do not hesitate to contact one of our experts listed below or your usual Osborne Clarke contact.