Hydropower is in the spotlight for its contribution to escalating electricity prices and for the surprising dumps that Iberdrola and Naturgy have performed throughout this summer in, at least, six hydroelectric reservoirs: Ricobayo, Valdecaas, Belesar, Cenza, As Portas and Salas.
In recent weeks, the Ministry for the Ecological Transition has begun the investigation of these cases and has contemplated the creation of a public company to manage the hydroelectric plant, although the definitive measure in the short term has now been included in the crash plan of the Government to lower the electricity bill. The change consists of modify article 55 of the Water Law for “specify what are the criteria for rational use” of water in hydroelectric uses, allowing basin organizations to set “a minimum level” of water that preserves the aquatic ecosystem and a “maximum of monthly flows” to be turbine by the companies, as explained by the minister and third vice president Teresa Riverbank.
The truth is that the conditions of most hydroelectric concessions, which they are usually from the last century, establish some unclear boundaries in the amount of water that the concessionaire company can use to generate electricity. In the text of 1933 of the hydroelectric exploitation of Belesar (Lugo) there was talk of 20,000 liters per second, although it was not until the modification and extension of 1958 that the use of a maximum flow rate of 180 m3 / s. It is also with this modification that the concessionaire was forced to comply with the River Fishing Law of 1942 “for the conservation of species and for the protection of fish wealth in continental waters.”
In the same sense, titles were granted for the exploitation of Rooms (Orense) on 1952 and of As Portas and Cenza (Orense) on 1955. In all of them, the concession companies were obliged to comply “both in construction and in exploitation with the provisions of the River Fishing Law”, with the same objective of protecting piscolas species in rivers and reservoirs.
Pedro Brufao, professor of administrative law at the University of Extremadura and an expert in hydroelectric concessions litigation, explains that to maintain this minimum fish life in the river it was necessary to maintain “something that we could now call ecological flow”, but that has historically been breached.
Brufao tells that in the first half of the 20th century there was a river fishing economy in the rural world, but that this way of life has completely disappeared, largely as a result of the dams. “These conservation standards have been a magnificent example of what we jurists call decorative legislation. They forced every concession to release a minimum amount of water and establish fish scales, but that obligation has been repeatedly breached, both by private hydroelectric concessionaires and by public companies, “he explains.
The maintenance of life on the rivers is not the only limitation contained in the old concessions. The concessionary title of 1960 from Valdecaas (Cceres) establishes that “to coordinate hydroelectric exploitation with diversion for irrigation, the maximum elevation of the reservoir is set 315 and as a minimum level of exploitation of the jump the 290According to data from the Tagus Hydrographic Confederation (CHT), Iberdrola emptied Valdecaas up to the 290.6 on August 3, 2021 and, Although it stayed on the edge of what was allowed, it harmed the irrigated and the residents of the area.
“If the company has a concession and it is legal to drain that amount of water in six weeks from the ministry, you have to act to use common sense so that these catastrophes do not occur,” he says. Francisco Prez, President of Femembalses (Federation of Associations and Municipalities with Hydroelectric Plants and Reservoirs).
The initial concessions are only a small part of the operating rules that currently regulate the hydroelectric uses of the waterfalls. The hydrological basin plans, which are normally updated every seven years, and the specific concession modifications of each concession, which may have more stringent water use limits, also intervene.
However, the current limitations of this entire set of exploitation regulations seem not to have been sufficient to prevent emptying, something that aims to stop the modification of the Water Law announced by MITECO.
The three confederations that supervise the six investigated reservoirs (Duero, Tajo and Mio-Sil hydrographic confederations) have affirmed to questions from this medium that the concession companies “appear” to have complied with the operating limits despite the environmental and socio-economic damage produced. In the words of the president of the Mio-Sil Hydrographic Confederation, Jos Antonio Quiroga: “today [Iberdrola y Naturgy] They are within the parameters of the concession title and of the exploitation rules that each one of the dams has. “
The six reservoirs investigated still have much lower amounts of dammed water than usual at this time and keep losing cubic hectometres week after week, also after the scandals of the casts. Currently they range between the filling of 27.8% of the Belesar reservoir and 11.1% of the Ricobayo reservoir.
EXCEED 75 YEARS
The expiration dates of all hydroelectric concessions in force in Spain they are not public. There is no accessible list that indicates it and many of the texts that modify the initial concessions and extend the expiration period cannot be found on the digital portals of the official gazettes, where they must be published. Therefore, It is not known with public certainty how many hydroelectric concessions exist or how many will expire in the coming years.
In addition, once the processes of termination of the concession have been initiated by the administration companies often resort, which anticipates a long list of litigation promoted by the electric companies before the end of their concessions. “For the electricity companies it is very difficult to release something like that and the different governments have never raised the issue seriously. But it would have to be something as automatic as the concession ending and going directly to the State or whatever the State considers, which can also be mancomunidades or autonomous communities “, considers Prez.
The terms that appear in the original concession titles are generally not in effect at present. This is due to a modification introduced by the 1985 Water Law that establishes that hydraulic concessions may not “exceed 75 years in any case.” In this way, the provisions of the concession titles of the six reservoirs investigated for the emptying are modified, which had a term of up to 99 years.
But the power companies have used another route to save the 75-year limit and extend the operation. The Water Law itself and the Regulation of the Public Hydraulic Domain contemplate temporary extensions of the concessions for reasons of amortization of the investment, so that in many hydroelectric plants companies have invested in the construction of new dams, thus establishing new service start dates (which are used to calculate the duration of concessions) and end of concession. Two examples are those of Ricobayo and Belesar.
On 1926 The Ricobayo water use concession granted to the Compaa Annima Sociedad Hispano-Portuguesa de Transportes Elctricos was published in the old Gazeta (now BOE). The plant started operating with a power of 133.2 MW in 1935, so the concession end term would have been 2010. However, in 1993 the company requested to build a new dam, Ricobayo II, which started working in 1999 with another 158 MW and by means of which the concession term for the entire plant was extended until the year 2040, as stated Francisco Javier Aguado, Mayor of San Cebrin de Castro (one of the municipalities near the reservoir). This assumes that 105 years duration of exploitation.
For its part, the Belesar waterfall has had a hydroelectric concession since the year 1910 but it wasn’t until 1963, after various changes of owner, when the exploitation that is still in force today with 229.2 MW began. Then in 2009, the then Union Fenosa Generacin, SA requested to increase the flow by the construction of a new dam, Belesar II, which started its activity in 2013. This investment added to the one already planned Belesar III they represent an increase in the time necessary to amortize the constructions. According to the CHMS, the construction of Belesar II has extended the concession term to 2063, thus fulfilling 100 years since the private exploitation of the jump began.
In any case, each new dam that a hydroelectric company builds will mean that the private exploitation of the hydroelectric waterfalls is extended for more than 75 years, when what was contemplated in the initial concessions is that 99 years would not be exceeded so that the State would not lose its connection with the public good and no property rights will be generated in the heirs of the concessionaires.
RISKS OF A MODIFICATION BY DECREE
Both the MITECO statements on the grounds of the casts and the National Integrated Energy and Climate Plan (PNIEC) consider that climate change has “direct effects on water resources”, and that the hydrological basin plans may imply “limitations to hydraulic uses”, as already proposed by the new Hydrological Plan of the Tagus, still in the consultation phase. public. However, the way chosen by the Government to do it, the decree law, can carry risks.
According to Brufao, we must wait to see the final content of the modification to determine how it may affect what is established in the hydrological plans (which in some cases already set maximum and minimum levels) and why “As it is written, it could harm the economic rights of the concessionaires”. Which could suppose indemnifications to the electrical ones, although there is already jurisprudence that dictates the opposite.
The expert in administrative law considers that the concessions “cannot be petrified in time” and have to adapt to the legislative reforms, but rejects the rapidity of the decree law. “Regulating with permanent character through a norm of extraordinary urgency and necessity has quite a number of constitutionality problems,” he warns, and recalls that “many decrees are declared unconstitutional years later for this reason.”
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