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River Basin Districts and River Basin Management Plans

The implementation of the Water Framework Directive in Spain

Ana de Marcos Fernádez

Faculty of Law Universidad Autonoma de Madrid

Spain

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SPAIN

•  Spain is a country in the South of Europe with scarcity of water, it doesn´t rain a lot,

it is really affected by climate change .The main consequences of climate change are more and more floods and droughts

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The rain in Spain

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The main rivers in Spain

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SPAIN

•  The scarcity of water is not the same in the whole country. In the North of Spain we have a lot of rain, an Atlantic climate, like Ireland or Great Britain, but with better temperatures. The landscape is also very similar to the characteristic one of these countries

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Galicias´landscapes

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SPAIN

•  But for example, in the South-East of Spain, Almería, Alicante, Murcia, all of them in the Mediterranean coast, the Lanscape is very near the typical of a desert. It doesnt rain, and generally there is a great scarcity of water.

•  These places have a large population, mainly in summer, because of the tourism.

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Almerías´ desert

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Volumes of flow of Spanish Rivers

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SPAIN •  Spanish Governments have fought against this

scarcity of waters. •  There are two principal alternatives: transfer of

water and desalanization of sea water The conservative party tried to solve this problem

through the transfer of water between different river basins, specially from the River Ebro to the cities of the Mediterranean coast. This position demands the building of very large public works to bring the water from the estuary of the river to the people.

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Transfer from the River Tajo to the River Segura

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SPAIN These transfers have important problems: •  Transfers cause environmental problems due to

the removing of the river´s water in the estuary or in other relevant parts of the river

•  The Hydraulic Public works necessary to transfer the water are very expensive

•  People from the Autonomous Communities where the river flows, don´t agree with the transfers and demand compensations for the delivery of the water

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SPAIN •  The main transfers of water in Spain were two: 1.- Transfer Tajo-Segura, from the Region of

Castilla La Mancha to Valencia and Murcia. During the last years it had to be stopped because of the droughts, as the River Tajo had not enough water to give some of it to the River Segura

This project was started in 1933, the definitive project was done in 1966, and the whole public works were finished in 1979. Castilla La Mancha demands that this transfer has to be finished in 2015

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Tajo-Segura. Evolution of the transferred water flow

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The Channels of the transfer Tajo-Segura

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SPAIN 2.-Transfer from the River Ebro to Valencia ,Murcia

and other Mediterranean Spanish areas •  This project was created in the National

Hydraulic Plan of 2001. This Plan was made by the conservative Party that was in the Government of the State at that date.(President Aznar)

. Some Autonomous Communities like Catalonia and Aragón complained about this project as they understood that the River Ebro and its waters were theirs. They said that they needed all the River Ebro´s waters for themselves.

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The Transfer from The River Ebro

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The estuary of the River Ebro

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SPAIN

•  In 2004 The socialist party won the general elections in Spain.

•  The first two decisions that the new President Rodriguez Zapatero adopted, were, first of all , to withdraw the Spanish Army from Iraq and then, to derogate the Hydraulic National Plan, and consequently

the transfers from the River Ebro

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Complaining against the Hydraulic National Plan

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SPAIN •  The new socialist Government modified the

National Hydraulic Plan and decided to replace the transfer of the River Ebro by a governmental project called Programa AGUA, in English, Water´s Program.

•  This Program, that is now operating, introduces a diferent type of measures to guarantee the water supply in the areas where the transfer of the River Ebro was going to be applied by the conservative government

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SPAIN

•  The most important measure of the Programa AGUA is the desalinization of sea water. The socialist Government decided to promote this measure because they thought that it was better for the environment than the transfers. Although, desalting water causes also important problems of pollution and consumes a lot of energy

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Desalinization

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SPAIN •  To guarantee the necessary water supply in the

mentioned areas , the new National Hydraulic Plan of 2004, included other measures like, saving water,renovation of infrastructures, reuse of water,etc.

•  The investment planned by the conservative Government to pay for the transfer of the River Ebro was about 4,3 billion €, without any grant from the European Union

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SPAIN •  The estimated investment of the new measures

(Programa AGUA) was about 3,9 billion €.1,2 billion of them will be paid from

the European Union by the European Regional Development Fund (ERDF)

The Socialist Government has only build one installation to desalt sea water , in Alicante, when the Water´s Program had projected eight.

Recently the references to this program has almost disappeared from institutional webs.It has not been a great success of this Government

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SPAIN

•  Next year, in 2012, we are going to have general elections in Spain and everybody thinks that the conservative party is going to win.

•  We don´t know what is going to happen about this subject in the next years. In Spain, now we only speak about the economic crisis and unemployment.

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SPAIN •  We have exposed that there are two different

positions to deal with the problem of scarcity of water in Spain, the transfers of water and the desalinization of sea water

•  It is necessary to make it clear that this is not the whole story

•  Although the conservative party tried to promote the transfers, and the socialist party supports other measures, mainly desalinization of sea water, there are other important elements taking into account regarding this subject.

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SPAIN •  Currently, in the Autonomous Communities

affected by this problem , it was and is for them more important to defend their own interests, regarding the giving or receiving of water, than to listen to the political parties´ mandates about this subject. For instance, in Aragon the conservative party doesn´t want the transfer of the River Ebro, and in Valencia, the socialist party prefers transfers of water than the desalinization of sea water.

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SPAIN

•  As we shall see in a moment, in Spain we have a lot of problems with the organization of our country. Our Regions, the Autonomous Comunities, want more and more power versus the State.

•  This problem about the organization has a bearing not only on this subject, but on the complete exercise of power in Spain.

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Autonomous Communities in Spain

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RIVER BASIN DISTRICTS •  One of the most important problems that has caused the

implementation of the Water Framework Directive in Spain is about the definition of the River Basin Districts and its application to the territory.

•  This problem caused the first requirement from the European Union to the Kingdom of Spain. The reason was that the Kingdom of Spain had not respected the timetable of the Water Framework Directive to define the River Basin Districts The European Comission thought that the Spanish Government had not done a good application of the River Basin Districts in our Land.

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The birth of this concept •  In Spain, since the begining of the XXth century,

we have organized the management of the water through River Basins

•  In Spanish Water Law books always say that the main contribution of Spain to the Water Framework Directive is the management of the water through river basins and our experiences in the management of droughts and floods

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River Basin

•  “River basin” means the area of land from which all surface run-off flows through a sequence of streams, rivers and, possibly, lakes into the sea at a single river mouth, estuary or delta.

•  This is the definition of river basin in the Water Framework Directive. In Spanish Law this is the traditional definition of river basin since the beginning of the XXth century until 1985.

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Historical Spanish Law •  Since the XIIIth century SURFACE

WATERS in Spain are public. •  In “ LAS SIETE PARTIDAS”, Spanish

Historical LAW BOOK with seven parts, it is clear that everybody can use or consume free Surface Waters Surface Waters are res communes, according to Roman Law. This tradition has lasted until today.

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Public domain •  The expression in Spanish Law is “dominio

público”, eminent domain or public domain. This expression emerged in the XIXth century, first of all in France. and it means that the control of the Surface Waters is in charge of the State.

•  In French the expression is “domaine public” and it is used in all countries influenced from Spanish or French Law.

•  Its application is not only for surface waters but also for sea water, roads, governmental buildings.

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Waters Management in Spain

•  Nobody can appropiate the surface waters without the authorization of the State that is the real owner of these Waters, in a more precise expression, the State has the jurisdiction over these waters.

•  There are three possibilities of use: common use,(it is free,, swimming, etc)special use (it needs a permission, fishing, navigating)and private use(it suppose water consumption, watering, drinking, industrial uses)

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Groundwater

•  Groundwaters were private waters and they could be bought and sold. The owner of groundwater was not the State, but the people. People could sell or buy groundwaters. And now it is only possible in the Canary Islands.

•  Groundwaters were not public domain until the Water Act of 1985

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The traditional organization of Waters Management in Spain

•  Until the democratic Spanish Constitution of 1978, Spain was a very centralized country. Also Local Governments depended on the state-level authorities

•  There were special public organizations for the management of water. They were called “Confederaciones Hidrográficas” Hydraulic Confederations.

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Hydraulic Confederations •  Each one of these Hydraulic Confederations

managed a river basin. •  They are part of the state- level organization •  In Spain, as in the WFD, the river basin means

the area of land from which all surface run-off flows through a sequence of streams, rivers and, possibly, lakes into the sea at a single river mouth, estuary or delta. The river basin is a word that describes a physical place not a concept of Water Law.

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Groundwater •  Since 1985, a new Water Act decided that

groundwater belongs to the category public domain- before this Act it was private water-. and included this type of water in the management of the RIVER BASIN

•  In this Act, the Parliament said that this type of water, the groundwater, belonged to the same water cycle as the surface water, so it is logical to include both types in the same management PLAN

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SPANISH CONSTITUTION 1978

•  Since the Constitution of 1978, Spain is a very decentralized country, it is not a federal country, but its Regions, that are called Autonomous Communities

have more competences and more power than the German Länder or the American States of the USA

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SPANISH CONSTITUTION 1978

•  There are in Spain 17 Autonomous Communities and 2 Autonomous Cities, Ceuta and Melilla, that are in the North of Africa

•  The Spanish Constitution divides the competences about water between the State and the Autonomous Communities

through this criterium exposed in art. 149.122:

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Art. 149.1.22

•  The State holds exclusive competence over the following matters:

legislation, regulation and concession of hydraulic resources and development when the waters flow through more than one Autonomous Community, and authorisation for hydro-electrical installations when their development affects another Community or when energy transport goes beyond its territorial area;

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Autonomous Communities •  The Autonomous Communities have

competences in this subject when the waters don´t flow through more than one Autonomous Community

•  So, we have two different models: 1.-When the waters flow through more than one

Autonomous Community. The management of the water belongs to the State

2.- When the waters don´t flow through more than one Autonomous Community. The management of the water belongs to the Autonomous Community.

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Hydraulic Administration in Spain

•  9 Hydraulic Administration between Regions (State) -  Ebro -  Guadiana -  Guadalquivir -  Duero -  Tajo -  Júcar -  .Segura -  Miño-Sil. -  Cantábrico Ocidental(R. D 14 DE ENERO DE 2011).

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Hydraulic Administration in Spain

•  7 Hydraulic Administration inside the Regions(Autonomous Communities)

- Galicia Costa. -Cantábrico Oriental.(RD 14 DE ENERO DE 2011) - Cuencas Internas de Cataluña. - Cuenca Mediterránea Andaluza. - Cuenca Atlántica Andaluza. - Islas Baleares. - Islas Canarias.

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River Basin Districts in Spain

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Different types of Hidraulic Confederations

•  The Hydraulic Confederations continued being the principal organization that managed surface and groundwater in our country, but now we have two different types:

•  1.-State-level Hydraulic Confederations : when the waters don´t flow through more than one Autonomous Community

•  2.-Autonomous-level Hydraulic Confederations: When the waters flow through more than one Autonomous Community

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The Water Framework Directive

•  In 2000 the Water Framework Directive was published

•  The WFD established a timetable. In 2003 Member States should identify the

individual river basins lying within their national territory and, should assign them to individual river basin districts.

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River Basin Districts

•  ‘River basin district’ means the area of land and sea, made up of one or more neighbouring river basins together with their associated groundwaters and coastal waters, which is identified under

Article 3(1) as the main unit for management of river basins.

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River Basin Districts

•  In Spain , as I have said, we had organized the management of water through river basins that included only surface- and groundwaters. Then to implement the Water Framework Directive and to identify the River Basin Districts it was necessary to include transitional and coastal waters

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The main problem

•  But the Spanish authorities didn´t apply the European concept of river basin district, they continued thinking that transitional and coastal waters didn´t belong to the river basin districts,- like before the publication of the WFD-, and they designed the river basin districts, without taking into account these types of waters

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Transitional and coastal waters •  Some of the Spanish Autonomous Communities

designed their River Basin Districts without including coastal and transitional waters. These Autonomous Communities applied the traditional Spanish Water Law, not the Water Framework Directive

•  There was another important reason to decide not to include transitional and coastal waters in the River Basin Districts. In Spanish Law the competences about these types of waters belonged mostly to the state-level authorities

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The problem

•  The problem arises when it is necessary to include in only one River Basin District according to the regulation of the WFD, part of an autonomous river basin and part of a state-level river basin.

•  This possibilty was not foreseen by Spanish Water Law, but it is imposed by the Directive

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Court of Justice of the European Community

•  The European Commission started a proceeding for failure to fulfill an obligation against the Kingdom of Spain. The Court of Justice of the European Community decided in its Judgement of 7th May, 2009 that the Kingdom of Spain had not fulfilled its obligations about the definition of the River Basin Districts and its application to the territory.(Case C-516/07).

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The adaptation to the WFD •  Gradually the Autonomous Comunities like

Galicia, Baleares, Canarias, Andalucía, have adapted their River Basin Districts to the WFD, including transitional and coastal waters, There is only one exception, the Hydraulic Confederation of the País Vasco. In January 2011 the State has solved this problem through a RD about the River Basin Districts Eastern and Western Cantabric , in the North of Spain

•  The map of River Basin Districts in Spain is closed with this last Royal Decree

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The adaptation to the WFD

•  In this case it is compulsory to forget the rules of the Spanish Law and to set up a new organisation between the Autonomous Community and the State, according to the Water Framework Directive.

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The adaptation to the WFD •  The Hydraulic Confederation of the País

Vasco traditionally managed a river basin that does not fit to the concept of River Basin District of the WFD. This concept is wider than the original Spanish concept of river basin. So it is necessary to include transitional and coastal waters and some

sub-basins that in Spanish Law belong to the state-level authorities competence.

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Conclusion •  In the struggle between Spanish Law and

the WFD to arrange River Basin Districts in Spain, we must adapt our organization to the rules of the Directive to be able to comply with them

•  But it doesn´t look easy in Spain today because the fight between the State and the Autonomous Communities about the control of water is still alive.

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Spanish Constitutional Court

•  Recently, on 16th and 17th , March, 2011, the Spanish Constitutional Court published two very important judgements about two of the most important rivers in Spain, the River Duero and the River Tajo.In both Judgements the Constitutional Court establishes the competence of the state-level authorities to manage these rivers.

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Spanish Constitutional Court •  Although the River Duero flows more than

98%(in the Spanish territory) through the Autonomous Community of Castilla León, and the River Guadalquivir more than 93% through the Autonomous Community of Andalucía (completely in the Spanish territory), these rivers also cross other Autonomous Communities. So the competences belong to the State as the Constitutional Court has said.

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The River Duero

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INTERNATIONAL RIVER BASIN DISTRICTS

•  Spain and Portugal have five international River Basin Districts in common: Miño, Limia, Duero,Tajo and Guadiana.

•  40% of the territory of Spain and 60% of the territory of Portugal belong to these River Basin Districts.

•  The relationships between both countries in this subject are regulated in the Convenio de Albufeira, the Albufeira´s Agreement , published in 1998.

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International River Basin Districts

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INTERNATIONAL RIVER BASIN DISTRICTS

•  The antecedents of this Agreement come from the XXth century.The first Agreement about this subject began in 1864 and it was called “”Tratado sobre los límites”, “Agreement about the borders”

•  The Water Framework Directive also regulates the international River Basin Districts in its article 3.4

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INTERNATIONAL RIVER BASIN DISTRICTS

•  “For international river basin districts the Member States concerned shall together ensure this coordination and may, for this purpose, use existing structures stemming from international agreements. At the request of the Member States involved,the Commission shall act to facilitate the establishment of the programmes of measures.”(art.3.4 WFD)

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INTERNATIONAL RIVER BASIN DISTRICTS

•  In this case the “existing structures stemming from international agreements” are those which are created by the Albufeira´s Agreement.

•  The new challenge for both countries is to project common River Basin Districts Plans as the WFD suggests.

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Albufeiras´Agreement

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INTERNATIONAL RIVER BASIN DISTRICTS

•  The Water Framework Directive has a very important influence in the regulation of the Albufeira´s Agreement. Although this Agreement was published before the Water Framework Directive, as both Spain and Portugal belong to the European Union, they take into account the works just done to prepare the WFD.

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INTERNATIONAL RIVER BASIN DISTRICTS

Article 13.2WFD •  “In the case of an international river basin district

falling entirely within the Community, Member States shall ensure coordination with the aim of producing a single international river basin management plan.

•  Where such an international river basin management plan is not produced, Member States shall produce river basin management plans covering at least those parts of the international river basin district falling within their territory to achieve the objectives of this Directive.”

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INTERNATIONAL RIVER BASIN DISTRICTS

•  The new challenge of both countries is to try to make common River District Management Plans to comply with the objectives of the Directive, Each River Basin District must have only one Plan to get a good management

•  It will be difficult because nowadays we haven´t River District Management Plans according to the article 13.1 WFD.

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River Bassin Management Plans in Spain

Article 13. 1 WFD says: •  “Member States shall ensure that a river

basin management plan is produced for each river basin district lying entirely within their territory.”

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River Bassin Management Plans in Spain

•  In Spain, the River Basin Plans that are in force, were published in 1998, except, those from Baleares and Galicia, that were published in 2001 and 2003. They are not adapted to the regulation of the WFD

•  The European Commission has required the Kingdom of Spain to publish the new River Basin District Management Plans, that had to be finished in 2009.

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River Bassin Management Plans in Spain

But now the works to finish the plans are very advanced, and the forecast is to have the plans in 2011

According to the article 5 WFD. the River Basin District Authorities have done

-an analysis of the characteristics of the River Basin District, - a review of the impact of human activity on the status of surface

waters and on groundwater, and - an economic analysis of water use The programs of measures have also been done and the people

affected have participate in the making of the Plan. There are only a few specific national reports to complete the

procedure