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Royal Decree-Law 10/2017, Of 9 June, That Urgent Measures Are Taken To Mitigate The Effects Of Drought In Certain Watersheds And Amending The Consolidated Text Of The Water Act, Approved By Royal Decree Leg...

Original Language Title: Real Decreto-ley 10/2017, de 9 de junio, por el que se adoptan medidas urgentes para paliar los efectos producidos por la sequía en determinadas cuencas hidrográficas y se modifica el texto refundido de la Ley de Aguas, aprobado por Real Decreto Leg...

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ms of Article 12 of Royal Decree 198/2015 of 23 March 2015, to make it possible for additional resources to be used to strengthen the technical measures for measuring, analysing, monitoring and controlling the consumption of water recognized in the concessions, the system of compliance with them, the monitoring of quality, safety and quantity of the continental waters, as well as activities of improvement of the river continuity, adaptation of the structures to the migration of the icthiofauna and sediment transport, the recovery of the bed of the beds and the riv, and from the Spanish part of the river basin districts of Cantabrian Oriental, Mino-Sil, Duero, Tajo, Guadiana and Ebro.

According to Article 27 of Law 10/2001 of 5 July, of the National Hydrological Plan, these plans, with their systems of hydrological indicators, are the ones that serve as reference to the basin organizations for the declaration formal alert situations and eventual drought.

II

The national average value of rainfall accumulated from 1 October to 1 May represents around 13% less than the normal value for this period. As of 1 May, the peninsular hydraulic reserve was 56%, notably lower than the average for the last 5 years (74.2%) and for the last ten years (70%).

The volumes in the present year hydrological in the intercommunity hydrographic demarcations have been very little relevant, persisting the situation of drought declared in the territorial areas of the The Segura and Júcar Hydrographic Confederations and the beginning of the drought situation in the Spanish part of the Hydrographic Demarcation of the Duero.

In the case of the Duero, the beginning of the hydrological year 2016/2017 has been extremely dry from the point of view of meteorology: thus, the accumulated precipitation in the last six months of last year has been 55% of the average of the historical series that reaches 48 years. The volumes packed to date 18 May 2017 are 984 Hm3 less than those that were packed on that same date in 2016. This figure of 984 Hm3 represents 34.20% of the regulatory capacity currently available to the river basin of the Duero.

As of May 1, the drought indicator for the overall state of the Spanish part of the Duero Hydrographic Demarcation has been on alert for the fifth consecutive month. This fact has led to the fact that, according to the content of the Special Plan of Action in situations of alert and eventual Drought of the Duero, and according to Article 20 of the normative provisions of the Hydrological Plan of the Spanish part of the Demarcation Hydrographic of the Duero, the demarcation is in a situation of prolonged drought, and have been adopted by the basin agency, a set of restrictions due to the lack of water embalmed, in accordance with article 55 of the recast text of the Law of Aguas, approved by the Royal Legislative Decree 1/2001, of July 20. Restrictions that have already been established and put into practice in the different areas provided from the reservoir through channels.

Based on this prolonged drought situation, the Dereservoir Commission of the Hydrographic Confederation of the Duero, agreed in February 2017, the elevation to the Council of Ministers, so that in accordance with article 58 of the text recast of the Law of Waters, adopted, by royal decree and in extraordinary circumstances such as those currently given in the Spanish basin of the Duero, the measures that are precise in relation to the use of the hydraulic public domain, even if it had been granted, in order to overcome the circumstances of need, urgency, anomalous or exceptional.

In the case of the Segura river basin, in drought declared since 9 May 2015, with the entry into force of Royal Decree 356/2015 of 8 May, the situation has been particularly aggravated for two reasons: the The volume of the total volume of the total volume of the total volume of the total volume of the total volume of the total volume of the total volume of the total volume of the total volume of the total volume of the total Tauto-Segura aqueduct), it is dated May 19, below 368 Hm3, having entered, according to The Rules of Operation of the Tajo-Segura Transfer, approved by the fifth additional provision of Law 21/2015, of July 20, amending Law 43/2003, of 21 November, of Montes, in Level 4, which implies that it cannot be approved Transfer of any supply and irrigation from the Tagus Hydrographic Demarcation.

In the case of the Hydrographic Demarcation of the Júcar, also in drought declared since May 9, 2015 with the entry into force of Royal Decree 355/2015, of May 8, to date May 1, 2017 the indicators of state of the The Turia and Júcar subsystems are on alert and prealert respectively.

Royal Decree 356/2015 declaring the situation of drought in the territorial scope of the Segura Hydrographic Confederation, and the royal decree 355/2015 of the Júcar and its extensions, contains as one of the measures The use of water-use contracts provided for in the Water legislation can help to overcome the situation of water resource scarcity, the use of water-use contracts provided for in the Water legislation.

In this regard, the possibility is provided for in Article 67.2 of the recast text of the Water Law, where it is foreseen that the contracts concluded may not be allowed to respect the prelation of uses established in the Hydrological plan of the river basin, or in its absence in the Law itself, in understanding that the exceptional situation and the general interest make the authorization of the measure advisable.

The additional provision of the Royal Decree Law 6/2015 of 14 May, admitted for these same contracts an exception from article 69.1 of the recast text of the Law of Waters, according to which " the annual volume susceptible of In no case may it exceed the actually used by the transferor. ' By way of exception and temporarily limited the transfer of all the amount of the flow granted regardless of the degree of use of the transferor in the preceding 5 years.

This forecast refers to contracts concluded between concessionaires in the Segura basin. It is now necessary that, exceptionally and temporarily limited, this measure should be extended to the Júcar and Duero basins; in this way, contracts for the transfer of rights may be concluded in each of these basins, between dealers and rightholders from the same basin taking as a reference the volumes granted and not those used in the last 5 years.

It is an easing of the legal regime of contracts that is raised as an exceptional measure to address the existing hydrological situation and is included in the additional provision second.

III

The hydrological drought situations described are affecting, in many cases, the birth and the normal development of the dry crops, as well as the irrigated crops of the areas referred to in the three demarcations. The present invention also relates to the use of water for irrigation purposes, as well as to the reduction of rainfall, which has affected reserves in aquifers that provide irrigation water.

The extreme climatic conditions that the agricultural sector has suffered this year in the areas identified, threaten the economic viability of many farms and their own survival as productive units, which would affect (a) the economy of the agricultural regions and the development of other sectors of economic activity related to agriculture.

While it is true that the Agricultural Insurance Plan, subsidized by the Ministry of Agriculture and Fisheries, Food and the Environment, represents the obligatory reference tool in the fight against the In the light of the drought and not the hydrological droughter space, including ribera forests and the fight against invasive species that result in a deterioration of the state of the public hydraulic domain.

The premurs of the legislative initiative embodied in the present royal decree-law has been motivated, as has been said, by structural needs of indefatiable execution in the protection, improvement and regeneration of the water masses The surface of the water catchment areas, which is related to immediate legislative action, which allows the application of an organic plan for the use and conservation of the basin, without forgetting the current adverse weather conditions. this requirement.

Therefore, the income derived from the increase in the tax rate, responds to a multi-annual plan that is consistent with the immediate need for higher income, associated with an essential improvement in the investment and resources in river basins, without prejudice to their subsequent liquidation in March 2018.

In this respect, it should be noted that, while it is true that the self-settlement for the 2017 financial year should not be submitted, as provided for in Article 10 of the Royal Decree 198/2015, but in the month of March, 2018, the approval of this Royal Decree-Law and, in particular, the application of the new tax rate to the proportional share of the tax base generated since its entry into force, as provided for in the single transitional provision, will allow a greater volume of resources to be generated from this moment The Commission shall, in accordance with Article 14 of the Regulation, provide the Commission with a view to taking account of the situation in the Member States and of the Member States in the field of safety and security. actions for the protection and improvement of the public hydraulic domain, thereby empowering the start of new projects in this exercise. It is clear that one and the other objective could not be achieved if the ordinary legislative procedure were to be observed, since the delay inherent in its processing would result in a delay in the application of the said increase of the type In this way, it would not have reflected in the immediate self-settlement and, with this, in the income of the basin agency, preventing in addition to incorporating into the Law of the General Budget for the year 2018 the greatest amount equivalent to the referred to increased collection.

Finally, the tax rebate provided for in Article 112a (7) of the Treaty recognises hydroelectric installations of a power equal to or less than 50 MW, to the extent necessary to maintain the effects of the the remuneration scheme set out in Royal Decree 413/2014 of 6 June 2014 regulating the production of electricity from renewable energy sources, cogeneration and waste, as well as from the IET/1045/2014 Order of 16 of June, approving the remuneration parameters of the applicable standard facilities to certain installations for the production of electrical energy from renewable energy sources, cogeneration and waste, since the aforementioned licence fee is one of the concepts taken into account when defining the costs variable determinants of the operating cost of the corresponding type facilities.

VI

The provisions that are approved by this royal decree maintain a relationship of continuity with the preceding norms that make up the legal order in this matter, due to the relationship each time. greater between environmental sustainability and energy production.

Hence, this rule finds its legal basis in Article 45 of the Spanish Constitution, in which the protection of the environment is contemplated as one of the guiding principles of social and economic policies, with the aim of internalising the environmental costs arising from the production of electricity, without forgetting that the improvement of energy efficiency levels leads to an increase in the quality of natural resource management.

However, it should be noted that the Constitution also imposes "the duty to take care of the development of all economic sectors" in its article 130.1, which is endowed with an essential finalist burden, which is to equate the the standard of living of all Spaniards and favour all economic sectors. Article 130 is a further manifestation of the Social and Democratic Rule of Law (Article 1.1) and reflects one of the basic functions of the State, the promotional function (Article 9.2) in order to equate the standard of living of all the Without forgetting the principle of solidarity proclaimed in Article 2, under which the State will ensure the establishment of an adequate and fair economic balance between the various parts of the Spanish territory.

In sum, Article 130 enshrines the obligation of the public authorities to take care of the modernization and development of all sectors of the economy and Article 45 makes it necessary to pay for the protection of the environment. environment.

The modification of the hydroelectric charge contained in this royal decree adequately preserves the constitutional guarantees in the relationship between the principle of tax law and the limit to the power to dictate decree-laws liable to affect the duty to contribute to the maintenance of public expenditure, since it does not affect the essential elements of the tax or the position of the obligation to contribute according to its economic capacity in the whole of the tax system. In this regard, the Constitutional Court (SSTC 35/2017, 1 March (F.J. 5. º) 100/2012, of 8 May, (F.J. 9) 111/1983) maintains that the submission of the tax issue to the principle of the reserve of law (Articles 31.3 and 133.1 and 3 EC) has relative and not absolute character, so the scope of regulation of the decree-law can penetrate the tax matter provided that the constitutional requirements of the enabling budget are given and does not affect the excluded subjects, which implies in the impossibility of such an instrument of alteration of the general scheme or of the essential elements of the taxes, if they have an appreciable effect on the determination of the tax burden or are liable to affect the general duty of the public to contribute to the maintenance of public expenditure in accordance with their wealth by a fair tax system.

In this way, the circumstances of extraordinary and urgent need, which constitute the enabling budget demanded of the Government by Article 86.1 of the Spanish Constitution, are in this way. Decree-laws, in accordance with the case law of the Constitutional Court: a situation of need based on concrete data; the urgency of the measures to be applied in respect of this situation of need, which cannot be addressed turning to the urgent legislative procedure; and the existence of a connection between the defined emergency situation and the concrete measures taken to address it.

This royal decree-law is dictated by the provisions of article 149.1.22. of the Spanish Constitution, which establishes the exclusive competence of the State in the legislation, management and granting of resources and benefits. When water flows through more than one Autonomous Community, as well as under the authorisation provided for in Article 149.1.14, it gives the State exclusive competence in the field of public finances.

For all of the above, in use of the authorization contained in article 86 of the Constitution, on the proposal of the Minister of Agriculture and Fisheries, Food and Environment, of the Minister of Finance and Civil Service, of the Minister of Energy, Tourism and Digital Agenda and the Minister for Employment and Social Security and prior deliberation of the Council of Ministers at its meeting on 9 June 2017,

DISPONGO:

Article 1. Object and purpose.

1. The purpose of this law is to establish, first