Impact of national legal frameworks on increasing the

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Impact of national legal frameworks on increasing the

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Impact of national legal frameworks on increasing the implementation of small-scale hydro electricity plants (SHP) in Europe – experiences of SMART project
Zvonimir Guzović, Branimir Matijašević Department of Energy, Power Engineering and Environment Faculty of Mechanical Engineering and Naval Architecture
University of Zagreb, Zagreb, Croatia emails: [email protected]; [email protected]
Marco Antoniazzi, Giuseppina Maffini, Sabrina Cassi Ufficio Energia - Settore Ambiente
Provincia di Cremona, Cremona, Italy email: [email protected]; [email protected];
[email protected]
Elizabetta Garofalo, Daniela Postiglione ERSE S.p.A. (ex Cesi Ricerca S.p.A.)
Milano, Italy email: [email protected]; [email protected]
Marinko Maradin Karlovac County Karlovac, Croatia email: [email protected]
Vesna Kolega North-west Croatian Regional Energy Agency - REGEA
Zagreb, Croatia e-mail: [email protected]
Ole Gunnar Dahlhaug Institute of Energy and Process Engineering The Norwegian University of Science and Technology, Trondheim, Norway
email: [email protected]
Lilly T. Christoforidou, Odysseas Katsaitis, Mattew Prosoparis, John Soukiouroglou Regional Secretariat of Attica Athens, Greece
email: [email protected]; [email protected]; [email protected]; [email protected]
Horst Lunzer, Tomas Waldhans, Otmar Schlager Energieagentur Waldviertel
Waidhofen an der Thaya, Austria email: [email protected]
Abstract
In the project SMART (Strategies to promote small scale hydro electricity production in Europe) from the programme IEE (Intelligent Energy Europe) 7 institutions from 5 European states participate: Province of Cremona – Italy; CESI RICERCA SPA – Italy; Faculty of Mechanical Engineering and Naval Architecture, University of Zagreb – Croatia; Karlovac

Regional Authority – Croatia; Norwegian University of Science and Technology – Norway; Regional Secretariat of Attica - Greece and Energieagentur Waldviertel – Austria. The SMART proposal address to the complexity of the legal/administrative processes to obtain concessions and the economical/financial attraction of private investitors. One of the main objective of the project SMART is to give clear contributions to pull down these nontechnological barriers, as helpful tools for European, national, regional and local authority decision-makers for increasing the implementation of small-scale hydro electricity plants (SHP) on their own territory. Therefore in this paper the results of investigations performed with aim to detection and pull down these non-technological barriers in partner states (Italy, Croatia, Norway, Greece and Austria) will be presented. Investigations include:
 analysis of inalienable principles regarding the right to use water;  analysis of the normatives about SHP;  analysis of environmental and administrative procedures;  critical review of the different regulations (weak and strong points, most important
conflicts linked to the use of water). In conclusion of the paper strategies to improve existing regulations (common methodology and tools) will be presented.
Kay words: programme IEE, project SMART, small-scale hydro electricity plants (SHP)
1. Introduction
The project Strategies to promote small scale hydro electricity production in Europe (SMART) is from Intelligent Energy Europe (IEE) programme.
The SMART proposal address to important barriers for the expansion of small-scale hydro electricity (SHP) production in Europe: the lack of suitable support methodologies and tools able to create a clear view of the mini-hydro potential in the territory, the complexity of the legal/administrative processes to obtain concessions, and the economical/financial attraction of private investors. Its main objective is to give clear contributions to pull down these non-technological barriers, as helpful tools for European, national, regional and local authority decision-makers for increasing the implementation of small-scale hydro electricity plants. The project will define policies, methodologies and tools to improve water resources management, to better communicate, disseminate opportunities to investors, and to increase the interest of stakeholders to invest in small scale electric plant. 5 representative regions (Cremona County, Karlovac County, Trondheim County, Attica Region, Thaya County) in the partner countries (Italy, Croatia, Norwey, Greece and Austria) will serve as learning areas about strategic actions. A mix of disseminating tools, website, contact points, publications, meetings and workshops will be carried out for target groups: national, regional and local authority decision-makers, public operators, investors, end users in general.
In the frame of project the partners will pick up and analyse normatives, institutional procedures and environmental issues assessing the latest developments on the implementation of small scale hydro electric plants in EU/partners countries, identifying the strengths, main obstacles and weak points of existing practices for concessions - will be developed Handbook, addressed to public operators with a critical review of existing normative, institutional procedures and environmental issues to install hydro electric plants.
The main task of SMART project is to reduce legal barriers, through the implementation of clear/standard procedure to obtain the concessions permissions.

2. Inalienable principles
In this chapter are presented inalienable principles regarding the right to use water and the authorization of SHP in different EU/partner countries.
2.1. Italy
In Italy all waters, surface water and groundwater, even though not drawn from underground, are a state property. Public state property includes rivers and streams that are inalienable by their nature. Italian legislation, from the unity of Italy onwards, has basically considered water as a public property capable of generating advantages for the benefit of the prevailing political and economic interests.
The protection of the rights of third parties refers to the protection of the legal title to use water obtained through a concession deed. The grant of concessions must provide for an inspection of the existing uses which must not be, in any way, damaged by the prospective new use.
The principle of solidarity anticipates the concept according to which water resources should be managed according to solidarity criteria and according to the protection of the expectations and of the rights of future generations. The aim is to not endanger water resources, the liveability of the environment, agriculture, aquatic fauna and flora, the geomorphologic processes and the hydrologic balance. The tool is a management of water use oriented towards the conservation and the renewal of the resources.
Competing uses of water states that all waters are a state property, you have to get the permission to use the water before to install a small hydro power plant. Water use concession is always limited in time and is bound both to the need to guarantee the quantitative balance, and to the need to achieve quality standards, according to what has been planned for the catchment basin.
Te works related to hydro power plant construction, as well as the works connected and the infrastructures necessary for the construction and operation of said plants shall be considered of public usefulness; they cannot be deferred and are urgent; this allows starting the procedures for land expropriation.
2.2. Croatia
According to the Water Management Strategy, entered into force in July 2008 as one of the most important legislative document regarding water management in Croatia:
 Water is a public resource which, because of its natural properties cannot be anybody’s property and enjoys special protection of the Republic of Croatia;
 Water is the means for life and work and shell be used on conditions according to Croatian legistation;
 Total water resource in Croatia is valuable natural and developmental potential and shall be manage rationally and sustainably;
 Total water need shall be satisfied uniformly and rightfully on the whole state teritory;
 Priorities and criterions in water management shell be difined on state level based on environmental principles as well as a social and suistainable development in accordance with state development policy.
Requirements on water works are the following:  shall allow returning of water into watercourse or other water body;  shall not reduce the existing extent of water use for water supply, irrigation and other

purposes;  shall not reduce the level of protection from adverse effects of water;  shall not deteriorate the health conditions, conditions of environment, flora and
fauna, property and legal interests, pedestrian, road and railway traffic.
2.3. Greece
The Water Framework Directive (WFD) 2000/60 supports the establishment of national and European water policies and strategies. The Directive primarily aims at maintaining a "good ecological status" of water aquifers through the study and application of "management plans" for each hydrological region. The Directive handles the water sector as an entity, while it retains high requirements and specifications for a series of components of the water cycle, such as surface waters, underground and marine waters, ecosystems etc. All the European countries -and naturally Greece- are compelled to conform to this "constitutive map" of waters, in the next years. A number of steps have been taken in the right direction but quite a few issues have not been settled yet. In that spirit, the Directive requires that the true opportunity cost of water resources is covered by the resource users. Such pricing schemes will be introduced in Greece by 2010.
On the basis of the above, a new legislative and institutional framework was introduced in Greece in December 2003. It consists of Law 3199/9-12-2003 (OJG 280A/2003) on the "protection and the sustainable management of the water resources" and the Presidential Decree 51/8-3-2007 (OJG 54A/2007), with which the EU Water Framework Directive (WFD) (2000/60/EC) is transposed into the national legislation.
These laws supplement previous legislation such as 75/440 on the quality of surface waters from which drinking water is obtained 80/778 on the quality of drinking water, 73/404 on pollution of waters drom detergeants, 76/464 on spilling of pollutants on waters, 79/923, 2006/113, 78/659 on the quality of waters for maintaining the life of fish and shells, 80/68, 2006/118 on the protection of underground waters, 91/676 on the protection of water from farming activities.
The mean cost recovery level (for all water uses) for the whole country is estimated at 59.18% but the levels vary according to the river basin districts. The mean precipitation of the Mediterranean European countries is 840 mm/year. Attica's mean inter-annual precipitation is approximately 400 – 450 mm/year. Water resources, hydraulic works and water uses are interrelated and inter-influenced factors, composing the whole water sector of a country. Therefore, a national policy is required for management and decisions.
2.4. Norway
Norway is one of the most developed countries in the world in terms of hydro power, and about 97% of the electricity supply is produced by hydro power. As early as 1877 the first hydro turbine used for electrical power output was installed, and hydro power is considered as the driving force in the industrialization of Norway.
In order to maintain a sustainable water resource management the following userinterests must be considered for each individual project:
 environmental needs with respect to fauna and flora conservation;  outdoor recreation;  cultural heritage;  fisheries;  drinking water, irrigation and recipient use;  land reclamation and drainage;  flood and erosion protection;  aquaculture;  hydro power;

 other industrial and commercial uses, e.g. gravel extraction;  transport sector e.g. waterways, roads, railways. A river system belongs to the owner of the land it covers, unless otherwise dictated by special legal status. The owners on each side of a river system have equal rights to exploit its hydro power, unless special legal grounds dictate otherwise. The landowner may oppose others exercising rights to a river system belonging to him without special legal grounds. Within the framework set by the legislation the landowner himself may control the river system provided no special rights are an obstacle to this. The water authorities may stipulate restrictions on the rights to a property in the interest of a future supply of drinking water that is being planned. Such a restriction may not be imposed for more than five years. The restriction may be renewed once for up to five additional years. A landowner along a river system may without a licence pursuant to current section in the Act abstract water for his household and domestic animals on the property.
2.5. Austria
In general, surface water in Europe is public property. In Austria, there is a distinction between public and privately owned surface water. This brings about a number of differences according to regulations in the Austrian Water Act (among others for the applications for water use permits, as well as for measures for flood prevention). Private surface water in most cases is owned by the landowner holding the surrounding property – ground water since 1934 is being exclusively treated as privately owned.
But for private property rights on water several restrictions apply – Austrian landowners cannot do with their water whatever they want. For the use of spring water from one’s own property, one does not need any official authorization. But each utilization exceeding the owner’s own needs requires official permission. If third parties are supplied by a domestic well, permission according to the Water Act is necessary. The administration states in a consensual procedure how much water may be used, expressing it in liters per second.
Property rights in case of flowing private waters refer not only to the river-bed, but also to the water as such. In cases in which the river-bed belongs to a private owner, this does not necessarily apply to the water within it. Mostly, the flowing water is not subject to the owners’ disposition unless he holds a permit for its use issued after actively claiming it.
Ownership structures become especially relevant as soon as commercial utilization is planned - for instance by the construction of a hydropower plant. The Water Act also states that private water, whenever public water is fed into it, automatically becomes public water, although the river-bed remains private. Austria’s big rivers are all public. The “Österreichische Bundesforste” (“Austrian National Forest Company” – the biggest forest owner) is also considered as the biggest water owner.
3. Analysis of environmental and administrative procedures: authorization to build the SHP
The process of preparing and construction of SHP plant (end other plants using the renewable energy sources) in EU/partner countries is more or less a complex organizational process determined by social, economic, legal, environmental, technical-technological and other factors. The whole process can be divided in various phases, each phase comprising the basic legal acts resulting from activities carried out in a particular phase. For example, in the Republic of Croatia each phase consists of several activities resulting in fact that 19 basic legislative acts request a total of cca 48 activities!

Due to complexity in this chapter as example only Authorization to build the SHP plant in partner countries will be presented considering:
 required application technical documents to submit;  timing of procedure;  costs;  evaluation criteria;  flow chart of procedure.
3.1. Italy
Required application technical documents to submit After obtaining the over-mentioned water diversion concession for hydroelectric purposes, the concession holder shall submit, to the Provincial Administration of Cremona, a written application for the authorization to build the hydroelectric power plant under decree no. 387/2003. Documents which have to be contained in the application are not described in the decree but are decided from the Province of Cremona on the basis of the passed experiences:
 the Legal person applying and its details;  the final project of the small hydro power plant that encloses the working plan of the
works, all the requirements arisen during the prior concession examination to water diversion and the technical characteristics of the infrastructures necessary to operate the power plant, the type of the turbines and the electrical parameters about power and energy production;  a report that shall demonstrate the proposed works are innocuous, as regards public water regime and third parties’ rights, and shall prove that diverted waters will not damage other existing works or assets in general, neither due to overflows nor due to filtration. The report shall also include the description of the proposed works and environmental impacts of the area;  a chorography that shall be adequately extensive to allow a reliable positioning of the diversion with reference to the well-known neighbouring places; it shall include the waterway intended for diversion, its surroundings, the drainage basin or basins to use for water collection, the pieces of land to cross with the designed works and their location (scale 1:10,000 and 1:2,000);  the power electric lines and the substations layout (scale 1:10,000 and 1:2,000) with electrical parameters about power and energy production;  a tax receipt related to the payment of 1,000.00 euro to the Province of Cremona. Electric lines are functional work and directly connected to the power station and, thus, fall under the authorization procedure of decree no. 387/2003, but the problem is private applicants do not know this possibility; in fact, they always think electric lines applications could be presented only from the Local Distribution Network Operator; more, private applicant prefer that the electric line‘s project shall be presented from the Local Distribution Network Operator;
Timing of procedure Under Decree no. 387/2003, authorization time shall not exceed 180 days, time for additional documents excluded, so the real time to give the authorization to build the power plant is on average 1 year.
Costs Cost for the authorization is 1.000,00 euro and it is a tax to pay to the Province of Cremona. Eventually compensation costs are already decided in the procedure to get the diversion permission; otherwise new compensation cost can be requested from a public body during the conference but they have to be well justified.

Evaluation criteria Unfortunately, there aren’t clear evaluation criteria fixed in the decree n. 387/2003, because we still waiting a national or regional guide to evaluate the different renewable source’s power plants. The only tools fixed from the decree is the Conference of Concerned Bodies (named “Conferenza dei Servizi”) that is a way to ask to all competent bodies what they think of the project and which are their questions, in a clear and fixed limit of the time. The meetings of the conference of the concerned Bodies is attended by the Mayor of the municipal territory hosting the power station, the same Bodies that took part in the procedure for diversion concession, the Regional Agency of Environmental Protection (A.R.P.A.) and the Local Health Authority (A.S.L.). A.R.P.A. and A.S.L. are summoned as bodies of technical consultation in charge of environmental protection, safety in the workplace and of assessing the fitness for use of buildings. Other entities are also summoned: the public entities that operate or hold railways, waterways, pipelines, roads, natural areas, parks, etc. that physically interfere with the electric line, as well as the holders of public properties crossed by the line. The authorization depend from the opinions of the Bodies that attend the meetings of the conference, opinions that have to be best objective and related to the project in examination. Under Decree no. 387/2003, the works related to plant construction, as well as the works connected and the infrastructures necessary for the construction and operation of said plants, shall be considered of public usefulness; they cannot be deferred and are urgent; this allows to start the procedures for land expropriation. The authorization shall comprise the obligation to restore the prior conditions of the area; this is to be carried out by the managing entity following plant dismantling.
Flow chart of procedure On Figure 1 is presented flow chart of procedure with times and roles in the authorisation to build a SHP in Province of Cremona – Italy.
Figure 1. Flow chart of procedure with times and roles in the authorisation to build a SHP in Province of Cremona – Italy
3.2. Croatia
Required application technical documents to submit The group of activities referring to procuring the building permit is considered as phase eight of the Process. The conditions and the procedure for procuring building permit are provided by the Physical Planning and

Building Act (OG 76/07, hereinafter PPBA). The construction of building having building (gross) area not exceeding 400 m and the
building for exclusive performance of agricultural activities having building (gross) area not exceeding 600 m, may be commenced based on the final decision on building conditions. The construction of buildings provided by Regulation on Determining Spatial Interventions and Buildings for which the Ministry of Environmental Protection, Physical Planning and Construction (MEPPPC) is in charge of issuing the location or building permit (OG 116/07), may be commenced based on the final building permit (Article 209, paragraphs 1 and 2 of PPBA).
Pursuant to the said Regulation the MEPPPC shall issue the location and building permit for taxatively determined buildings.
Such buildings comprise among others:  Power plants capacity 20 MW and above with the pertinent facilities;  Power transmission line 220 kV and above with transformer station and switching
equipment on that power-transmission line;  International and main pipeline for transport of oil, gas, petroleum products,
including the terminal, dispatch and measuring-regulation (reduction) station technologically connected with such pipeline;  Dams with accumulation or retention area with the pertinent facilities meeting the criteria of large dams (Article 2 of Regulation). Apart of the above mentioned spatial interventions and buildings the Ministry is in charge of issuing the location and building permit for spatial interventions and buildings as well, for which the defining of integral environmental protection conditions is required. The decision on building conditions and building permit are administrative acts. The construction of other building may be commenced based on the confirmed main design. (Article 209, paragraphs 3 and 4 of PPBA). The simple buildings and works, construction, i.e. performance of which may commence without the act approving construction, is provided for by the Ordinance on Simple Buildings and Works (OG 101/07). The competent administrative body of the county shall issue the decision on building conditions and the confirmation of the main design for buildings outside the area of big towns and for building located in the territory of two or several self government units, and the competent administrative body of the City of Zagreb, i.e. big towns for buildings on their territories. The MEPPPC shall issue the building permit for buildings referred to in Regulation on Determining Spatial Intervention and Buildings for which the MEPPPC is in Charge of Issuing Location or Building Permit. The request for issuing decision on building conditions in written form shall be submitted by the client. The request for issuing the decision on building conditions shall be accompanied by:  Three copies of the conceptual design with situation indicated in special geodetic surveying map;  Special conditions of the state administration body in charge of cultural assets for building located in the settlement or part of the settlement, entered in the Cultural Asset Register of the Republic of Croatia as cultural-historic entity, or the building has been entered in the register as cultural asset;  Written report and validity confirmation of the conceptual design if the design has been drafted in line with foreign regulations;  The evidence of the building right on the land in which the building parcel will be shaped, i.e. on the existing building (Article 213 of PPBA).
Timing of procedure If the conditions provided by this Act have been complied with and if the

client has submitted the evidence on paid municipal service tax and water taxes, as well as building fee pursuant to the special act, the competent administrative body shall issue the decision on building conditions not later than thirty days from the date of receipt of proper request (Article 219 of PPBA).
The decision on building conditions expires if the client fails to commence the construction within the term of two years from the date of final decision. The validity of the decision on building conditions shall be extended upon request of the client for one two years period if the conditions determined in line with the provisions of this Act and other conditions pursuant to which the decision was issued, have not changed. The competent administrative body shall keep the conceptual design and decision on building conditions (Article 221 of PPBA).
But it is necessary mention that entire procedure consists from several phases and activities (please see chapter 3.2.4.5. Flow chart of procedures) and timing of procedure is 240 days but timing of some activities is not defined (denoted with ?).
Because only on two SHP about 10 kW power is performed the entire procedure, the practical experience about real timing of this procedure is very unreliable: it seems that is also longer.
Costs The costs for authorisation to build a SHP can, generally, be divided into:  costs for SHP environmental conditions;  costs for SHP building conditions.
These costs are defined on national level and are the same for the whole Croatian teritory. The SHP exceeding 1 MWel are considered as interventions for which the evaluation of
the need for environmental impact assessment should be carried out. The competent body for assessment is the Ministry of Environmental Protection, Physical Planning and Construction. The initial fee for the request for the evaluation of the need for environmental impact assessment is about 100 kn (15 EURO). If the Ministry decises that Environmental impact assessment is obligatory the costs for its preparation depends on current market price as well as SHP performances and should be as high as 300,000 kn (cca 41,000 Euros).
The costs for SHP building conditions consist of costs for:  location permit - 750 kn (cca 102 EURO);  special geodetic surveying map – 7000 kn (cca 960 EURO);  building permit – 0,25‰ of the total price of plant building;  usage permit - 0,25‰ of the total price of plant building.
Evaluation criteria In the procedure of issuing decision on building conditions the following shall be determined:
 that the building plot is developed within the meaning of Article 125, paragraph 2, i. e. Article 126, paragraph 2 of PPBA;
 place and method of connecting to traffic and municipal infrastructure as well as the other infrastructure;
 that the request for issuing the decision is accompanied by documents referred to in Article 213 of PPBA.
For the purpose of ascertaining the fact that the building plot is developed, the competent administrative body shall, prior to issuing the decision on building conditions, carry out on the spot investigation on the building parcel.
The request for issuing the confirmation of the main design in written form shall be submitted by the client.
The client shall accompany the request for issuing the confirmation of the main design by the following documents:

 Thee copies of the main design with the bound copy of the text of the final location permit,
 Written report on inspection of the main design, if the design control is required,  Written report and validity confirmation if the main design was designed in line with
foreign regulations,  Survey on geotechnical and other research works, as well as technological, traffic
and other surveys, if the data referred in such surveys were used for drafting of the main design,  Parcelling survey, verified by the body in charge of state measuring and real estate cadastre and confirmation of the competent administrative body which issued the location permit on conformity with the location conditions for the form and the size of building parcel,  Evidence of the building right on the building parcel, i.e. in scope of the building intervention, i.e. on the existing building (Article 223 of PPBA). In the procedure of issuing the confirmation of the main design the following shall be determined:  That the main design is drafted in line with the location permit,  That the main design is drafted in line with the provisions of the PPBA, regulations adopted pursuant to PPBA and other regulations,  That the building plot is developed within the meaning of Article 125, paragraph 2, i.e. Article 126, paragraph 1 of PPBA,  That the request for issuing the confirmation is accompanied with the documents referred to in Article 223 of PPBA (Article 225 of PPBA). If the conditions provided by PPBA have been complied with and if the client has submitted the evidence on paid municipal utility and water charges, as well as building fee provided for by special act, the competent administrative body shall issue the confirmation of the main design within the term not longer than thirty days from receipt of proper request. The confirmation of the main design expires if the client fails to commence with construction within the period of two years from the date of issuing such confirmation. The request for issuing the building permit in written form shall be submitted by the client, who is party in the procedure of issuing the building permit. The client’s request on issuing the building permit shall be accompanied by the following documents:  Three copies of the main design with the bound copy of the text of the final location permit and special conditions which are integral part of the location permit,  Written report on inspection of the main design,  Written report and validity confirmation if the main design was designed in line with foreign regulations,  Survey on geotechnical and other research works, as well as technological, traffic and other surveys, if the data referred in such surveys were used for drafting of the main design,  Parcelling survey, verified from the body in charge of state measuring and real estate cadastre and confirmation of the MEPPPC, which has issued the location permit, on conformity with the location conditions for the form and the size of the building parcel,  Evidence of the building right on the building parcel, i. e. within the scope of the building intervention, i.e. on the existing building (Article 228 of PPBA). Following shall be determined in the procedure of issuing the building permit:  That the main design is drafted in line with the location permit,  That the main design is drafted in line with the provisions of the PPBA, regulations adopted pursuant to PPBA and other regulations,
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