Last Friday, Decree-Law no. 11/2023 was published in the Official Gazette, reforming and simplifying environmental licensing within the framework of the SIMPLEX programme.
Due to its importance for several sectors, in particular the energy sector, we highlight the main changes introduced by this diploma:
I) Amendments To The Legal Framework For Environmental Impact Assessment (RJAIA)
a) Change of EIA thresholds (Annex I of RJAIA)
Solar projects
- Regarding projects aimed at the production of electricity (other than wind projects), in addition to the traditional criteria of installed capacity (equal to or greater than 50MW), a specific criteria is now foreseen for photovoltaic power plants regarding the affected area, providing for the submission of an EIA (Environmental Impact Assessment) in cases where the area occupied by panels and inverters is equal to or greater than 100ha (general case) or equal to or greater than 10ha (sensitive areas).
Wind Farm projects
- Regarding the implementation of wind farms (as well as in situations of overpowering of existing wind farms that have not been subject to EIA), in addition to the alternative criteria of the number of towers (20 towers) or distance from other similar projects (2km), the latter will only apply in cases where the number of towers of the projects is equal to or greater than 20.
- In the case of overpowering of existing wind farms, outside the project area, which have been subject to EIA, EIA is now required whenever the final result of the project with the overpowering, alone or together with previous overpowering, comprises a total of 30 towers.
b) Automatic exclusion from the case-by-case analysis
Solar projects
- When they simultaneously fulfil the following conditions: (i) installed area of less than 15 hectares; (ii) they are not located less than 2 km from other photovoltaic power plants with more than 1MW, when together they result in an occupation area equal to or greater than 15 hectares; (iii) the sectioning stations are connected to the RESP by lines with a voltage not exceeding 60 kv and a total length of less than 10 km.
Wind farm projects
- Wind farms, in the case of one tower, provided that it is located over 2 km from another tower.
Overhead electric lines
- Overhead electric lines with a voltage not exceeding 30 kV and a total length of less than 10 km.
c) Exclusion from EIA or case-by-case analysis
- Amendment or extensions of energy projects (included in the typologies of no. 3 to 9 of Annex II of RJAIA) implemented or being implemented that have already been subject to EIA are no longer subject to EIA provided that cumulatively: (i) the initial project and the change or extension are not located in a sensitive area; (ii) they are developed in the area of the project subject to a favourable or conditioned favourable DIA; (iii) they do not correspond to a change in the activity and/or substances or mixtures used or produced, in relation to the authorised economic activity codes; and (iv) they do not include the implementation of a component that corresponds in itself to another typology distinct from the initial project.
- Likewise, changes to projects that have previously received favourable or favourable conditioned DIA that result from the replacement of equipment, with or without a change in installed capacity, when: (i) they are included in typologies no. 3 to 9 of Annex II of RJAIA; (ii) they are developed within the area of the project that has received favourable or favourable conditioned DIA; (iii) the conditions of the DIA are fulfilled; (iv) the initial project and the change are not located in a sensitive area; (v) there is no change in the activity and/or in the substances or mixtures used or produced with reference to the authorised CAEs.
d) Issuance of the Environmental Impact Declaration (DIA)
The deadline for issuing the DIA is extended from 100 to 150 days from the date of submission of the application through the electronic platform, after which is considered as tacitly issued.
II) Amendments To The National Agriculture Reserve (RAN) And National Ecologic Reserve (REN) Legal Frameworks
Elimination of the duplicate appreciation of projects subject to EIA or AINCA by other entities in particular:
- When there are areas subject to the REN regime, a favourable opinion from the CCDR (provided that at the execution project phase) in the context of these procedures, waives the prior communication;
- When there are areas subject to the RAN regime, the favourable opinion of the RAN regional entity in the context of these procedures waives the opinion;
III) Amendments To The Protection Regime For The Cork Oak And Holm Oak
Eliminates the need for authorisation for cork oak and holm oak tree cutting in the following cases:
- In the case of projects subject to EIA or AINCA (at the implementation project stage), INCF has issued in these procedures, a favourable opinion (with the cutting or grubbing up of cork oak and holm oak trees being foreseen in the EIA);
- In the case of projects subject to EIA or AINCA (in the preliminary project phase), the EIA provides in detail for the cutting activities and the trees concerned;
A specific period of 45 days is also included for the issuance of declarations of essential public utility and of relevant and sustainable interest for the local economy (under the competence of several members of the Government).
VI) Amendments To The Legal Regime For The Use Of Water Resources And The Water Law
- In cases of assignment of water resources title (including within the concept of transmission, the assignment of shares aimed at ensuring control of the company holding the title), prior notice must be given to the competent authority at least 10 days before to the date of assignment, provided that the requirements governing their emission continue to be met, with the acquirer thereby being subrogated to all the rights and duties of the transferor for as long as the respective title of use lasts.
- It is now also provided that the decision authorising such transfer must be issued within 20 days from the date of submission of the request, after which it is considered tacitly issued.
V) Amendment To The Regime That Establishes The General Principles Of Action That The Services And Bodies Of The Public Administration Must Obey
Article 28-B was added to this diploma making it possible to request the issuance of a certificate attesting the occurrence of any tacit decision or other type of positive effects associated with the absence of response from the competent entities, in light of the Administrative Procedure Code (CPA) or any other law or regulation, regardless of the nature of the competent entity for the practice of the act. It should be noted that the formation of the tacit decision does not depend on obtaining such certificate, and may be enforced before all entities regardless of obtaining such a certificate.
VI) Transitory Provision Rule and Validity
This Decree-Law takes effect on 1 March 2023, with the exception of the rules regarding the Single Environmental Report (Reporte Único Ambiental) and the amendments to the CPA, which take effect on 1 January 2024. Note that the amendments made by this Decree-Law apply to administrative procedures that are in due course.
The Decree-Law can be consulted here.
