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URÍA & MENÉNDEZ
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The information contained in this Newsletter is of a general nature and does not constitute legal advice |
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ENVIRONMENTAL NEWSLETTERAmendments to the National Hydrological Plan.Law 11/2005, of June 22, by which Law 10/2002, of June 5, which approves the National Hydrological Plan, is amended. Spanish Official Gazette of June 23, 2005. (More information) REGULATIONS OF THE AUTONOMOUS REGIONS Autonomous Region of Catalonia. Landscape Protection.Law 8/2005, of June 8, on Protection, Management and Planning of the Landscape in Catalonia. Official Gazette of the Catalonian (DOGC) of May 16, 2005. (More information) Autonomous Region of Galicia. Waste Production and Management.Decree 174/2005, of June 9, which regulates the Legal Regime of Waste Production and Management and sets forth the Registry of Waste Producers and Managers of Galicia. Official Gazette of Galicia (DOGA) of June 29, 2005. (More information) Autonomous Region of Madrid. Industrial Wastewater Discharges into the Integrated Sewage Network.Decree 57/2005, of June 30, which amends the Annexes of Law 10/1993, of October 26, on Industrial Wastewater Discharges into the Integrated Sewage Network. Official Gazette of Madrid (BOCAM) of July 6, 2005. (More information) Autonomous Region of Valencia. Mining Activities in Forests.Decree 82/2005, of April 22, of Environmental Planning of Mining Activities in Forest of the Autonomous Region of Valencia. Official Gazette of Valencia (DOGV) of April 26, 2005. (More information) COURT RESOLUTIONS Freedom of Access to Information on the Environment.Court Resolution of the European Court of Justice of April 21, 2005 (C‑186/04). (More information) Civil Liability. Article 1908 of the Spanish Civil Code.Court Resolution of the Supreme Court of March 14, 2005. (More information) |
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NATIONAL REGULATIONS
Law 11/2005, of June 22, by which Law 10/2002, of June 5, which approves the National Hydrological Plan, is amended. Spanish Official Gazette of June 23, 2005.
Law 11/2005 comprises a very important set of measures intended to redefine the water policy in Spain. The main objectives of this law are the following: to comply with EU regulations, in particular with Directive 2000/60/EU; to guarantee the fairness, efficiency and sustainability in the management of water and use of the hydraulic resources, and the use of the best available techniques.
For that purpose, Law 11/2005 approves different measures which are aimed at repealing certain provisions of Law 10/2002 regarding the diversion of water from the Ebro river to the hydrological basins of Catalonia, Júcar, Segura and the South. Law 11/2005 also approves the development of those urgent projects that may directly result in an improvement of available water resources in the Mediterranean basins. In this regard, Annex III of Law 11/2005 incorporates some new general interest actions, and Annex IV reorganizes the whole set of actions that will be undertaken with a priority character.
Law 11/2005 also includes certain amendments to the Law on Water, among which, the following may be highlighted: the declaration stating that desalinated water is part of the hydraulic public domain; measures in the adoption of decisions on new works that are of public interest; measures favouring the integration of the protection and sustainability of water in other policies, such as policies relating to energy, transportation, urban planning, agriculture, fishing or tourism; the definition of ecological flows; the establishment of natural river reservoirs in the hydrological plans of each basin for the purposes of conserving those sections of the rivers with little human intervention or none at all; the need to provide exact measurements of the water used under public concessions; measures of reinforcement on water protection, etc.
REGULATIONS OF THE AUTONOMOUS REGIONS
Law 8/2005, of June 8, on Protection, Management and Planning of the Landscape in Catalonia. Official Gazette of the Catalonian (DOGC) of May 16, 2005.
Law 8/2005 contains five chapters. Chapter I sets out the objective of the Law, defines landscape, establishes the scope of application of the Law, and sets forth the policies to protect landscape, among other aspects.
Chapter II, which relates to landscape in rural and town planning, provides the instruments available to protect the landscape within the framework of this Law, and creates the so-called “landscape catalogues” (catálogos del paisaje) as documents that determine the typology of landscapes in Catalonia and their current and future values.
Chapter III refers to the Landscape Observatory (Observatorio del Paisaje), as an entity that provides assistance to the Catalonian regional government in those aspects relating to the drafting, application and management of landscape policies.
Chapter IV promotes the creation and use of new instruments for the co-ordination of strategies concerning the landscape. Likewise, the Government of the Autonomous Region of Catalonia undertakes to raise public awareness about the society’s sensitivity towards the landscape, and to train specialists in this field.
Finally, to ensure that the main purpose of Law 8/2005 is attained, Chapter V creates a fund for the protection and management of landscapes, as a financial instrument for the Catalonian Government. Its purpose is to finance specific activities to protect and manage the landscape.
Decree 174/2005, of June 9, which regulates the Legal Regime of Waste Production and Management and sets forth the Registry of Waste Producers and Managers of Galicia. Official Gazette of Galicia (DOGA) of June 29, 2005.
The main objective of Decree 174/2005 is to regulate the system of authorisation and notification of waste production and management activities in the Autonomous Region of Galicia; as well as their registration within the Waste Producers and Managers Registry of Galicia.
Chapter II governs waste production and management activities. These activities will require a previous administrative authorisation or a simple notification to the competent authorities, depending on the specific activity involved.
Chapter III sets out the procedure for the granting of the authorisation required under the Decree, and the effects of administrative silence and the validity of the authorisations, among others aspects. This Chapter also includes the system of obligations applicable to producers and managers of waste in Galicia.
Chapter IV regulates production and management of construction and demolition waste.
Chapter V is dedicated in its integrity to regulate the Galician Registry of Waste Producers and Managers, which will be divided in two sections (hazardous and non hazardous waste). The competent authority for this Registry is the General Directorate of Environmental Quality and Assessment of the Galician Government.
Finally, Chapter VI is dedicated to the sanctioning scheme, where it is expressly stated that all offences under Decree 17472005 shall be sanctioned pursuant to state Law 10/1998, of April 21, on Waste.
Decree 57/2005, of June 30, which amends the Annexes of Law 10/1993, of October 26, on Industrial Wastewater Discharges into the Integrated Sewage Network. Official Gazette of Madrid (BOCAM) of July 6, 2005.
Decree 57/2005 amends Annexes 1 to 4 of Law 10/1993. Decree 57/2005 introduces certain partial amendments to Annex 1 with the main purpose to specify the affections that may cause the substances classified as “prohibited discharges” under Law 10/1993; incorporates the new wording introduced in this Annex as per Decree 83/1999, and amends the section titled “hazardous and dangerous waste” to adapt it to the new classification of hazardous waste set forth under Law 10/1998, of April 21, on Waste, and its implementing regulations.
Annex 2 incorporates certain substances not included before, such as certain toxic substances, and some hydrocarbons, while Annex 3 updates the list of industrial facilities that must apply for and obtain a waste water discharge authorisation in accordance with Article 8 of Law 10/1993. Likewise, the amendment made in Annex 3 of Law 10/1993 introduces a new section by virtue of which all those facilities that may discharge waste water into the integrated sewage network and that due to the specific characteristics of the discharges are considered to require a waste water authorisation will have to obtain this authorisation regardless the specific activity carried out or the amount of water used.
Finally, Annex 4 updates and completes the analytical techniques and the procedure to determine the parameters of contamination in the waste water adapting them to the new standards in this field.
Decree 82/2005, of April 22, of Environmental Planning of Mining Activities in Forest of the Autonomous Region of Valencia. Official Gazette of Valencia (DOGV) of April 26, 2005.
Mining activities cause an environmental impact that affects certain parts of the environment, such as soil, biodiversity, hydraulic resources and the landscape.
This situation has been fundamental in the approval of Decree 82/2005. The main purpose of this Decree is to regulate the environmental planning of extractive mining activities carried out in open spaces and developed in forest areas of the Autonomous Region of Valencia. This Decree aims to minimize the environmental impact of these activities and to restore any natural areas affected by these activities.
Decree 82/2005 regulates, among other issues, the obligation to obtain the approval of a Complete Restoration Plan (Plan de Restauración Integral) and to obtain a positive Environmental Impact Assessment prior to the commencement of activities falling within the scope of the Decree.
COURT RESOLUTIONS
Court Resolution of the European Court of Justice of April 21, 2005 (C‑186/04).
The Court Resolution of the European Court of Justice of April 21, 2005 concerns the effects of administrative silence in relation to the freedom of access to information on the environment. Specifically, this Resolution deals with Articles 3 and 4 of the Directive 90/313/EU of the Council, of June 7 1990, on freedom of access on information on the environment, which prohibit that a national regulation takes the silence of the relevant authority to which the request of information has been made as a negative answer.
The Court considers that a negative decision by administrative silence is contrary to the provisions of Directive 90/313/EU, as the Directive imposes on Member States the obligation to justify the refusal to provide the requested information. Due to its specific nature, a refusal based on administrative silence cannot be justified. This rationale leads the Court to understand that the inactivity of the relevant authority is not valid as a way to refuse a request for information on the environment.
Court Resolution of the Supreme Court of March 14, 2005.
The Court Resolution of the Supreme Court of March 14, 2005 focuses on Article 1,908 of the Civil Code when solving a complaint made by different claimants against two companies involved in the manufacturing of aluminium, as a consequence of damages caused to the claimants’ crops due to the irregular functioning of the defendants’ industrial premises.
The Court ruled in favour of the claimants, essentially on the basis of the following arguments:
Firstly, the Supreme Court reiterates that civil liability arising as a consequence of damages to the environment must be considered, in general, as a protection to an adequate environment for the development of the people and, in particular, as a specific way to protect personal pecuniary right.
Secondly, in response to the defendants’ arguments that premises complied with applicable regulations concerning air emissions hence excluding any liability of the defendants, the Supreme Court concludes that, although quantitatively the emissions from the premises complied with applicable regulations, they were still noxious and caused damages to third parties (the claimants) totally outside to the referred premises. Under Article 1,908 of the Civil Code, it is the existence of harmful effects that generates the obligation to compensate regardless of whether the damage is caused by the defendant’s negligence.
This Resolution confirms the strict liability consideration of Article 1,908 of the Civil Code and reiterates, once again, the application of the general principles of civil liability for the protection of the environment in accordance with Article 45 of the Spanish Constitution.
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