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Construction of Wind Farms - From Selection of the Location, through Issuing of the Location Permit, to Planning
Monday, 08.08.2011.
12:25
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Regulations on construction of a power plant can be classified in two main groups: the regulations governing the area of planning and construction of structures and the regulations governing the area of the energy sector.
The group of the regulations governing the area of planning and construction includes: the Law on Planning and Construction, bylaws adopted under the law governing the area of planning and construction and the Law on Spatial Plan of the Republic of Serbia, supporting planning documents (regional spatial plans, spatial plans of the units of local self-governments, and spatial plans of special-use areas and urban development plans: the urban master plan, the general regulating plan, the detailed regulating plan), and other regulations.
The Law on Planning and Construction regulates the procedure for obtaining the location permit, the Construction Permit, and the operating permit, while the planning documents define the objectives of spatial planning and development, spatial development, or whether it has been planned to construct a certain structure at a certain place in the Republic of Serbia within a certain time period. In order to obtain the location and the construction permits, it is necessary to obtain the electric power and technical requirements for connection to the electricity transmission or distribution system, as well as the water requirements, the water approval, and the water permit, which are issued in compliance with the Law on Waters and the regulations under this Law.
The group of regulations governing the area of power the energy sector includes: the Energy Law, regulations enforcing this Law, the Energy Sector Development Strategy of the Republic of Serbia, the Program of Implementation of the Energy Sector Development Strategy of the Republic of Serbia, and other above specified regulations that are related to the energy permit, the license for engaging in energy-related activities, connection of a facility to the grid, etc.
The Energy Law stipulates that energy facilities may be constructed if the Minister of Mining and Energy issues the energy permit to the applicant. The procedure for obtaining the energy permit is regulated by the Rulebook on Criteria for Issuing Energy Permits, Contents of the Application, and Procedure for Issuing Energy Permits (*47). It also stipulates that the energy permit shall be issued in compliance with the Energy Sector Development Strategy of the Republic of Serbia and with the Program of Implementation of the Energy Sector Development Strategy of the Republic of Serbia, which regulates the requirements and the place where a concrete energy facility should be constructed. The procedure for obtaining the energy permit precedes the procedure for obtaining the construction permit for a concrete facility, which is regulated by a group of regulations on planning and construction.
The procedures that are related to the obtaining of the energy permit, the location permit, the construction permit, the operating permit, the license for engaging in the activity, connection to the electricity grid, and other procedures necessary to obtain the ancillary documentation are administrative procedures, and the deadlines for obtaining such documents are specified in the actual regulation governing the procedure for obtaining an administrative decision necessary for construction of a power plant or for engaging in the activity of electricity generation. In case such deadlines are not specified in the concrete regulations, the Law on General Administrative Procedure shall be applied to the deadline for issuing of the concrete administrative decision. (*48) (*49)
Procedure for Construction of a Power Plant
In order to construct and utilize any structure in the Republic of Serbia, and even the structure of a power plant, it is necessary to meet the following requirements: 1) To obtain the energy permit; 2) To obtain the location permit; 3) To obtain the construction permit; 4) To construct the structure and ensure supervision in the course of construction of the structure, and 5) To ensure the technical inspection of the structure and to obtain the operating permit.
Construction of structures in the Republic of Serbia shall be carried out on the basis of the construction permit and the technical documentation, under the conditions and in the manner stipulated in the Law on Planning and Construction.
Within the procedure for obtaining the location permit, the requirements from the aspect of air traffic safety need to be obtained from the competent authorities and organizations, as well as the water requirements, electric power and technical requirements for connection to the electricity grid, requirements for connection to the utility infrastructure, etc.
The procedures preceding the obtaining of the construction permit are as follows: 1) obtaining of the energy permit, which is necessary for construction of energy facilities, which include power plants of a capacity exceeding 1 MW; 2) Obtaining of the location permit in compliance with the valid planning document; 3) Preparation of the technical documentation – the main design.
Within the procedure for obtaining the construction permit, for power plants exceeding 10 MW, the Environmental Impact Assessment Study for the future facility may be requested.
Selection of the Location, Perusal of Valid Planning Documents, and the Information on Location
The first step of a potential investor concerning the construction of a power plant is certainly selection of the micro-location.
The second step of the investor shall be verification as to whether the valid planning documents envisage construction of an energy facility at the selected location. One should
bear in mind that power plants can also be constructed on agricultural land, with the previously obtained approval from the Ministry of Agriculture, Forestry and Water Management.
In the unit of local self-government, whose territory includes the selected location, one can get for perusal the valid planning document in which it is possible to check whether construction of energy facilities has been envisaged at that location. Then, the Application for the Information on the Location shall be submitted for the desired location, for the purpose of obtaining the data on the possibilities and limitations with respect to the construction on the reviewed cadastral lot in line with the valid planning document.
The application for the Information on Location shall be submitted to the authority in charge of issuing the location permit, against remuneration of actual costs of issuing of such information. With the application for the information on the location, a copy of the lot(s) plan shall be submitted, which has been previously applied for in the competent real estate cadastral service in the territory of the municipality. (*50)
The Information on Location, in addition to the name of the applicant, the number of the cadastral lot, and the place where it is located, shall also contain (*51) the data on: 1) The planning document based on which it is issued; 2) The zone in which it is located; 3) The use of the land; 4) Regulation and building lines; 5) Codes of construction; 6) Requirements for connection to the infrastructure; 7) The need to prepare a detailed urban plan or urban design; 8) The cadastral lot, or whether the cadastral lot fulfils the requirements for the building plot including the instructions on the required procedure for forming the building plot; 9) Engineering and geological conditions; 10) Special requirements for issuing the Location Permit (list of requirements). The Information on Location shall enable the person, to whose name it is issued, to gather all the special requirements (requirements for protection of cultural monuments, requirements for preservation of the environment, etc.) and technical requirements (the place and method of service connections of the structure to the infrastructure lines, as well as their capacities) prior to the issuing of the location permit.
The Information on Location shall be issued by the authority in charge of issuing the location permit. In case a power plant is to be constructed within the boundaries of a national park or within the boundaries of protection of a protected outstanding national asset, when the power plant is of a capacity of 10 MW and over, as well as when the power plant is over 50m high – the competent authority is the Ministry of Environment and Spatial Planning, or the competent authority of the Autonomous Province, if the facility is to be located in the territory of the Autonomous Province (*52). In all other cases, a local self-government unit is in charge thereof.
The Information on Location shall be issued within eight days as of the date of submitting the application, against remuneration of the actual costs of issuing such information.
Energy Permit (*53)
The energy permit is a permit for construction of an energy facility, which is issued by the Ministry of Mining and Energy. It is necessary to point to the fact that the energy permit for a power plant shall be issued provided the construction of such a facility, by its type and use, is in compliance with the Energy Sector Development Strategy of the Republic of Serbia and with the Program of Implementation of that Strategy.
In order to obtain the energy permit, it is necessary to meet the criteria for construction of electricity generating facilities stipulated in the Rulebook on Criteria for Issuing Energy Permits, Contents of the Application, and Procedure for Issuing Energy Permits (*54). For power plants of a capacity below 1 MW, issuing of the energy license has not been envisaged, which means that, for such facilities, the location permit shall be issued, without following the procedure for issuing the energy permit.
The application for the energy license, subject to the Energy Law, shall contain the data on: 1) The location at which the power plant is to be constructed; 2) The deadline for completion of construction; 3) Type and capacity and energy efficiency of the power plant; 4) Energy commodities, which the energy facility will use; 5) The method of generation and takeover of electricity; 6) The method of protection of the environment in the course of construction and operation; 7) The requirements that are related to the termination of operation; 8) The amount of planned financial resources for construction and the method of providing such resources.
The Rulebook on Criteria for Issuing Energy Permit, Contents of the Application, and Procedure for Issuing Energy Permits differentiates small electricity generating plants from electricity generating plants of a rated capacity exceeding 10 MW. This Rulebook regulates the form (O-1) for the Application for the energy permit separately for construction of an energy facility for electricity generation of a rated capacity from 1 MW to 10 MW (which applies to small power plants) and the form (O-2) for the Application for the energy permit for construction of an energy facility for electricity generation of a rated capacity exceeding 10 MW.
This application shall specify the following data: 1) General data on the applicant (name, address, state, official registration number of the applicant, tax identification No., legal and organizational form, data on the management, data on registration, name of the contact person); 2) Basic data on the structure (name of the structure, the location of the land, technical data on the energy facility, share of the energy facility in system services, the primary and secondary fuel); 3) The value of the investment (the amount of the planned financial resources and the method of their securing); 4) The financial position of the applicant (relevant statement of a bank that it is willing to support the applicant or the investor in financing the construction of the energy facility); 5) The envisaged economic and service life of the facility as well as the method of rehabilitation of the location upon expiry of the service life of the facility (removal, disassembly of the facility); 6) Harmonization with the spatial plans and the concept of development of the energy sector (the excerpt from the urban development plan or the decision on urban development requirements, the decision of the competent authority on the use of the land including the established measures of and requirements for protection of the environment – if such a decision has been handed down, and the opinion of the operator of the electricity transmission or distribution system on the requirements for and possibilities of connection to the systems); 7) Feasibility study for construction of the energy facility; 8) In case the energy facility is constructed in stages, which represent technical and technological entireties, the application shall contain the data on the planned stages of construction and the final deadline for completion of the work.
With the application for the energy permit, the investor shall submit: 1) The information on the location issued within a period of maximum one year (if issued); 2) The decision of the competent authority on the use of the land on which the energy facility is going to be constructed including the established measures and requirements for environmental protection (if such a decision has been handed down); 3) The feasibility study for construction of the energy facility for which the energy permit (*55) is applied for, which shall also specifically contain the analysis of possible impacts on the environment including proposed measures for environmental protection (*56); 4) Relevant statement of a bank that it is willing to support the applicant or the investor in the financing the construction of
the energy facility, including the name and type of energy facility to which the statement refers, the location of the energy facility, maximum capacity of the facility, and the amount of the investment for the construction of the energy facility; 5) The opinion of the operator of the electricity transmission or distribution system on requirements for and possibilities of connection of the new facility to the system. (*57) (*58) (*59)
The energy permit shall be issued within thirty days from the date of submitting the application. The discontented party may lodge an appeal against the decision on the energy permit within eight days from the date of receipt of the decision.
The energy permit shall be issued for a period of two years and its validity may be extended for an additional year at the request of the holder.
Requirements for Connection
Prior to issuing the location permit, it is also necessary to obtain the requirements for connection to the electricity grid. If the investor fails to obtain the above requirements on his/her own, the authority in charge of issuing of the location permit shall obtain them ex officio prior to issuing the location permit.
Within the procedure for drawing up of the urban development planning document, the location permit, or for preparation of the main design for construction of the structure, at the request of the investor or of the competent authority, the energy entity to whose system the power producer’s facility is to be connected, shall issue the requirements for connection of the producer’s facility to the electricity grid. The requirements for connection shall define the feasibility of connection of the producer’s facility to the electricity grid, or shall define the electric power and technical requirements needed for preparation of the main design for construction of the facility.
The procedure starts when the application is submitted for the requirements for connection.
The following shall be submitted with the application: 1) Evidence of the payment of the expenses of issuing of the required requirements for connection as per the pricelist; 2) Other documentation, which is specified by the energy entity in the application form for the requirements for connection.
The technical report, on the basis of the analysis made, shall establish whether there are electric power and technical conditions for possible future connection of the facility according to the submitted application.
Based on the technical report, the energy entity, to whose system the facility of the producer is to be connected, shall issue the decision on the requirements for connection to the investor in construction of the facility, or to the competent authority. The requirements for connection shall contain the definition of their validity period. An appeal may not be lodged against the decision on the requirements for connection (the decision on the requirements for connection does not contain the grounds for it or instructions on the legal remedy). The decision on the requirements for connection shall be issued within the deadline prescribed by the law (*60).
Location Permit (*61)
The Law on Planning and Construction prescribes that the location permit is the document, which contains all the requirements and data needed for preparation of the technical documentation (the preliminary and the main design), in line with the valid planning document. The location permit is also a prerequisite for issuing the construction permit. The location permit for small power plant facilities shall be issued by the competent authority of the unit of local self-government (of a capacity of up to 10 MW) in the territory of which the facility is to be constructed.
In case a power plant is to be constructed within the boundaries of a national park or within the boundaries of protection of a protected outstanding natural asset, when the power plant is of a capacity of 10 MW and over, as well as when the power plant is 50 meters high and over – the competent authority is the Ministry of Environment and Spatial Planning, or the competent authority of the Autonomous Province, if the facility is to be located in the territory of the Autonomous Province.
Procedure for Issuing the Location Permit
The documentation necessary to obtain the location permit for construction of a power plant is specified in the Law on Planning and Construction. The following shall be submitted as obligatory exhibits to the application for the location permit: 1) A copy of the lot plan (issued within a period of maximum six months); 2) The certificate of the cadastre of underground installations; 3) Evidence of the ownership right or of lease of the construction land. (*62) (*63)
The application for the location permit, apart from the above, shall also contain the data on the structure to be constructed, particularly on the planned layout, type, and use of the structure, technical characteristics and the like. (*64)
The Law on Planning and Construction stipulates that the building plot shall be formed prior to submitting the application for the location permit.
If the authority in charge of issuing the location permit establishes that adequate documentation has not been submitted with the application for the location permit, it shall
notify the applicant thereof within eight days. In case the planning document does not contain all the requirements and data for preparation of the technical documentation, the competent authority shall obtain them ex officio, at the expense of the investor. The authorities, or organizations authorized to issue such requirements and data shall act further to the request of the competent authority within 30 days.
The competent authority shall issue the location permit within 15 days as of the date of a duly submitted application, or of obtaining of the requirements and data, which it shall obtain ex officio.
The location permit shall particularly contain (*65): 1) The name and family name of the investor including personal identification No., or business name or name of the investor including the seat and PIB; 2) The number and surface area of the cadastral lot; 3) The data on the existing structures on the lot that need to be removed; 4) The defined access to a public traffic area; 5) The use of the structure; 6) Building lines; 7) Codes of construction; 8) Requirements for connection to roads, public utility, and other infrastructure; 9) Possible and mandatory stages in the project implementation; 10) List of mandatory parts of the main design; 11) The name of the planning document based on which it is issued; 12) The statement that the legally valid location permit is the basis for
preparation of the preliminary and of the main design if the structure referred to in Article 133 of the Law on Planning and Construction is in question, or for preparation of the main design; 13) The obligation of the designer-in-charge to prepare the design in compliance with the codes of construction and requirements from the location permit; 14) The statement that the issued location permit shall cease to be valid if the investor, within two years as of the date of legal validity of the decision on the location permit, fails to submit the application for the construction permit.
The statement of reasons for the decision on the location permit shall contain, in addition to others, the statement that the cadastral lot fulfills the requirements for a building plot.
An appeal may be lodged against the decision issued further to the application for the location permit, issued by a unit of local self-government, within eight days. An appeal against the decision on the location permit of a unit of local self-government shall be decided on by the ministry in charge of town planning affairs or by the competent authority of the Autonomous Province - if the structure is to be located in the territory of the Autonomous Province.
An administrative suit may be instituted by action against the decision issued further to the application for the location permit, which is issued by the Ministry of Environment and Spatial Planning, or by the competent authority of the Autonomous Province.
Forming the Building Plot (*66)A building plot is a part of the construction land, with the access to a public traffic area, which has been constructed or is envisaged for construction by a plan.
Prior to submitting the application for the location permit, the Allotment/Reallotment Plan, i.e. the plan forming the building plot shall be prepared. The reallotment plan implies the plan forming one or more building plots on a number of cadastral lots, while the allotment plan implies the plan forming a number of building plots on a single cadastral lot.
The allotment or reallotment plan shall be prepared by a company, or by a legal entity or entrepreneur, registered in the relevant registry. Drawing up of the allotment plan shall be managed by a town planner-in-charge, an architect. The specified plan shall also contain the Design of Geodetic Survey Benchmarking.
The reallotment or allotment plan shall be submitted to the authority in charge of town planning affairs of the unit of local self-government for verification. If the plan is in compliance with the valid planning document, the competent authority shall verify the plan within 10 days and, if not, it shall notify the party that has submitted the plan thereof. A complaint against the above notification may be submitted to the municipal or to the city/town council within 3 days as of the date of its submittal.
Thereafter, the Application for undertaking allotment, or reallotment, shall be submitted to the authority in charge of the affairs of state survey and cadastre (RGA – the Republic Geodetic Authority).
The following shall be submitted with the application for undertaking the reallotment or allotment: 1) The evidence of resolved property-rights relations for all the cadastral lots, and 2) The reallotment, or allotment plan verified by the authority in charge of town planning affairs of the unit of local self-government, an integral part of which shall also be the Design of Geodetic Survey Benchmarking. The authority in charge of the affairs of state survey and cadastre shall hand down the decision on forming of the cadastral lot(s) further to the above application. An appeal may be lodged against this decision within 15 days as of the date of submitting of the decision.
For obtaining the location permit, the Article of the Law on Planning and Construction, which regulates special cases of forming of a building plot, may be applied to power plant facilities.
For construction of electric power facilities, a building plot can be formed of a smaller area than the area specified in the planning document for that particular zone, provided there is an access to the facility, or to equipment, for the purpose of maintenance and elimination of defects or accidents. The access easement agreement with the owner of the servient estate shall also be recognized as the resolved access to a public traffic area.
An agreement on lease of privately owned land with the land owner, concluded in compliance with special regulations, may also be recognized as the evidence of resolved property-rights relations concerning the land for a future power plant. For construction of a power plant, the building plot represents a belt of land of incomplete expropriation of a part of the cadastral lots through which the structure would stretch and of individual lots on which the appurtenant above-ground structures are to be located. In addition to an incomplete or complete expropriation, servitude and right-of-way agreements concluded with the owners of the cadastral lots shall also be recognized as the evidence of settled property-rights relations for construction of line infrastructure facilities.
For construction of power plants that are constructed on cadastral lots, which border with the lots that are on water land or forestry land, a building plot shall be formed within the cadastral plot on which the main facility is to be constructed while, for laying installations over the water land or forestry land, an servitude and right-of-way agreement with a public company, or with other organization that manages water land, or forestry land, in compliance with a special law, shall be recognized as the evidence of resolved property-rights relations.
Approval from the Aspect of Air Traffic Safety (*67)
The competent authority is the Serbia and Montenegro Air Traffic Services Agency, which shall issue the approval, from the aspect of air traffic safety, for putting up and marking of a wind power plant. Such markings must be maintained in proper condition.
The procedure for obtaining the above approval is not specifically prescribed, but the application for the approval, in no special form, but with clear contents, shall be submitted to the Serbia and Montenegro Air Traffic Services Agency (*68).
Water Requirements, Water Approval, and Water Permit (*69)
Depending on the place where a power plant is put up on the occasion of its construction, i.e. depending on whether a power plant or a part thereof is put up in the area of a water asset, it shall be necessary to fulfill the requirements stipulated in the Law on Waters.
The Law on Waters differentiates between the general and special uses of waters. In case of construction, reconstruction of a facility or of carrying out the work that may temporarily, occasionally or permanently cause changes in the water regime or on which water regime may have any impact, it is considered that special use of waters is in question. The right to the special use of water shall be acquired by the water permit and, if special use of waters is grounded on a concession, in compliance with the agreement regulating concession as well.
The Law on Waters has also introduced special rules that are related to the design and carrying out of the work on construction of structures. Design and construction of structures shall be carried out in such a manner as to: 1) Enable discharge of waters back into the watercourse after exploitation of the energy; 2) Not to reduce the current volume or to preclude the use of water for supply to the citizens and other users; 3) Not to degrade level of protection from detrimental impact of waters; 4) Not to deteriorate the conditions of sanitary protection; 5) To ensure their multipurpose use.
This Law defines the following water documents; 1) The water requirements, 2) The water approval, 3) The water permit, 4) The water order. Water documents are issued by the Ministry of Agriculture, Forestry and Water Management when a power plant shall be constructed in the territory of Serbia proper; in case of construction of a power plant in the territory of the Autonomous Province, water documents are issued by the authority in charge of agriculture, forestry, and water management for the Autonomous Province and, in case of construction of a power plant in the territory of the City of Belgrade, water documents are issued by the Water Administration (*70). The deadline for issuing a water document shall be two months from the date of submitting the application. An appeal may be lodged to the minister against a water document issued by the competent authority of the Autonomous Province or by the Water Administration, within 15 days.
The discontented party may institute an administrative suit against the decision of the Ministry.
The Law prescribes that, for the procedure for preparation of the technical documentation for construction of new and reconstruction of the existing structures and for carrying out of other works, which may have impact on the changes in the water regime, the investor shall obtain the water requirements (specifying technical and other requirements that must be met). It also prescribes that, for the requirements of preparation of the technical documentation, it is necessary to obtain the water approval, which specifies that the technical documentation for the structures and works has been prepared in compliance with the water requirements. The water permit, which shall be obtained once the structure has been constructed (the operating permit cannot be issued without having obtained the water permit), specifies the manner and conditions for the exploitation and use of waters and discharge of waters. The procedures for issuing the above documents will be explained in more detail below.
Prior to the issuing of the water requirements (which are necessary for issuing the location permit, and for preparation of the design documentation – the main design), it is necessary to obtain the opinion of the Republic organization in charge of hydro- meteorological affairs (the Republic Hydrometeorological Service - RHMS) and the opinion of the public water-management enterprise (Public Water-management Enterprise Srbijavode – for the territory of the Republic of Serbia except for the Autonomous Province of Vojvodina, i.e. the opinion of the Public Water-management Enterprise Vode Vojvodine – for the territory of the Autonomous Province of Vojvodina).
The opinion of the Republic Hydrometeorological Service shall be obtained on the basis of the submitted application.
The following shall be submitted with the application (*71): 1) The topographic map of the area (1:25000) with indicated layouts of the structures, 2) The technical description, and 3) In case of unstudied catchment basins, the hydrological study (usually made based on meteorological data, as well as on the hydrological data from the adjacent catchment basins).
The opinion of a public water-management enterprise shall be obtained on the basis of the submitted application for the opinion.
The following shall be submitted with the application (*72): 1) A copy of the plan with the plotted structures, 2) The excerpt from the planning document – the information on the location, 3) The technical description of the design (if available, the general design may be submitted).
The Application for the water requirements shall be submitted after obtaining the Opinion of RHMS and the Opinion of the public water-management enterprise.
The following shall be submitted with the application for the water requirements: basic data on the location, use, and size of the structure and, as required, preliminary studies, and the general design (conceptual design), which provide a more detailed insight in the impact of the structure on the water regime.
For issuing the water requirements, the opinion of the public water-management enterprise shall be mandatory. In addition to the above specified, it shall also be mandatory to submit the following with the application for the water requirements: 1) A copy of the plan (including the plotted position of the structure) - which is issued by the competent Real Estate Cadastre; 2) The registered land certificate (for the cadastral lot on which the structure is to be constructed) - which is issued by the competent Municipal Court, or by another competent authority; 3) Certificate of resolved property-rights relations: evidence of the ownership – use of the land by the investor, the approval of the public water-management enterprise if the construction of a structure of public interest on the water land is in question; 4) The plan of use of the areas, which is issued by the unit of the local self-government in charge of town planning. (*73)
The competent ministry (the Ministry of Agriculture, Forestry and Water Management) shall issue the Decision Issuing the Water Requirements. The main design shall be prepared based on this Decision. The obtained Decision Issuing the Water Requirements is one of the elements of the location permit. (*74)
Once the location permit has been obtained, one proceeds with the preparation of the design documentation – (the preliminary and) the main design of the power plant. In order to proceed with the following stage – obtaining of the construction permit, it is necessary, inter alia, to obtain the water approval on the specified design documentation. Before that, the approvals of the Ministry of Health and the Ministry of Environment and Spatial Planning (*75) shall be required. The water approval establishes that the technical documentation – the main design, has been prepared in compliance with the water requirements.
The documentation for issuing the water approval is specifically the technical documentation - the main design, which must contain: 1) The technical report; 2) Computations: hydrological, hydraulic, of stability, level of pollution, etc.; 3) Graphical exhibits: layout plans, plans, and cross-sections with the necessary elements for establishing the impact of the water regime on the structure and vice versa; 4) Presentation of the natural water regime; 5) Presentation of the projected water regime; impact of the structure on the natural and the projected water regimes; 6) The impact of the natural and projected water regimes on the structure. The approvals of the Ministry of Health and of the Ministry of Environment and Spatial Planning shall also be submitted along with the above application.
The following shall be submitted with the application for the water approval on the main design: 1) The Decision Issuing the Water Requirements; 2) The main design; 3) The report on the review of the design; 4) Other documents, which are required in the Decision Issuing the Water Requirements (*76).
In case the construction of a power plant is not started within two years from issuing the water approval, the water approval shall cease to be valid.
As required, prior to the issuing of the water requirements and the water approval, for the use of water land, use of water facilities, and providing other services (in accordance with the Decision for the current year), the Investor shall conclude the relevant agreement with the public water-management enterprise or with the Ministry of Agriculture, Forestry and Water Management – the Republic Water Directorate.
Once the structure has been constructed, and prior to obtaining the operating permit, it shall be necessary to submit the application for the water permit to the Ministry of Agriculture, Forestry and Water Management, or to the competent authority, which has issued the water approval. The water permit is required for the exploitation and use of waters and natural and artificial watercourses, lakes, and ground waters, for discharge of waters and other substances into natural and artificial watercourses, lakes, ground waters, and public sewers, as well as in case of increase of the capacity of the already existing structure – for the increase of the quantity of in-taken and discharged waters, changed nature and quality of discharged waters. This permit shall be issued for a period of maximum 15 years so that, maximum two months prior to its expiry, its validity should be extended. The right acquired on the basis of the water permit may not be assigned to a third party without the consent of the issuing party and this right shall terminate: upon expiry of the validity thereof, by waiver of the right, and by failure to exercise the right without justified reasons for over 2 years.
The following shall be submitted with the application for the water permit: 1) The water approval; 2) The evidence of fulfillment of the requirements from the water approval; 3) The technical documentation based on which the structure has been constructed, including all the modifications and additions made in the course of construction; 4) The report of the commission on the completed technical inspection of the constructed structure or plant; 5) The opinion of the public water-management enterprise concerning the fulfillment of the requirements from the water approval, the impact of the structure on the water regime, the impact of the water regime on the structure, and the requirements for issuing the water permit. (*77)
Environmental Impact Assessment
Environmental Impact Assessment is a very important element in the process of construction of a power plant. Within the procedure for obtaining the energy permit, it shall be necessary to make a study of possible impacts on the environment including the proposed measures for protection of the environment.
The Decree on the List of Projects for which Environmental Impact Assessment (EIA) Study is Mandatory (List I) and the List of Projects for which EIA Study May Be Required (List II) stipulates that, for construction of a power plant (a wind farm) of a capacity exceeding 10 MW, the Study may be required, because it is on the List II of the Decree. Further to the specified provision of this Decree – making of this Study is not necessary for power plants of a capacity below 10 MW. (*78)
The Law on Environmental Impact Assessment stipulates that, when a power plant exceeding 10 MW is in question, in view of the fact that it belongs to the group of facilities for which the Environmental Impact Assessment Study may be requested, the project leader for such a facility shall submit the application for deciding on the need for impact assessment to the competent authority. The competence of the authority in the procedure for establishing the need for making the Impact Assessment Study is the same as in case of establishing the competence for issuing the building and location permits, which means that the competent authority is the Ministry of Environment and Spatial Planning, or the competent authority of the Autonomous Province, if the facility is to be located in the territory of the Autonomous Province.
The application related to the need to assess the impact shall be submitted in the prescribed form, in compliance with the Law on Environmental Impact Assessment and the
Rulebook on Contents of the Application Concerning the Need to Assess the Impact and on Contents of the Application for Determining the Scope and Contents of Environmental Impact Assessment.
The application (*79) based on which it shall be decided on the need to assess the impact shall contain: 1) Data on the project leader; 2) The description of the location; 3) The description of the characteristics of the project; 4) Presentation of the main alternatives that have been analyzed; 5) The description of the environmental factors that may be exposed to the impact; 6) The description of major harmful impacts of the project on the environment; 7) The description of the measures envisaged for the purpose of prevention, mitigation, and elimination of major harmful impacts; 8) Other data and information at the request of the competent authority. The following documentation shall also be submitted with this application: 1) The information on the location or the verified urban design (issued within a period of maximum one year); 2) The conceptual design or the preliminary design, or the excerpt from the preliminary design; 3) Graphical presentation of the micro- and macro-location; 4) Requirements and approvals of other competent authorities and organizations (*80) obtained in compliance with a special law; 5) The evidence of payment of the Republic administrative fees and duties; 6) Other evidence at the request of the competent authority.
Within 10 days, the competent authority shall notify the interested authorities and the public about the submitted application. The interested parties should submit their respective opinions within 10 days from the date of receipt of the notification. The competent authority shall decide on the application within an additional period of 10 days. If it is decided that the impact assessment is required for the reviewed power plant of over 1 MW, the same Decision may determine both the scope and contents of the impact assessment study. If it is established that the impact assessment is not required, the competent authority may specify minimum requirements for environmental protection in the Decision. The decision shall be submitted to the project owner, the interested authorities, and to the public within three days as of the date of handing down the decision.
The project owner and the interested public may lodge an appeal, and the competent second-instance authority shall bring the decision within 30 days from the date of receipt of the appeal.
If, further to the application related to the impact assessment, the Decision has been brought in which it was decided that the impact assessment is required and if, in the same Decision, the competent authority has not specified the scope and contents of the impact assessment study, the project owner must submit the application for determining the scope and contents of the impact assessment study to the competent authority, in the prescribed form.
The application for determining the scope and contents of the impact assessment study shall contain: 1) The data on the project owner, 2) The description of the location, 3) The description of the project, presentation of the main alternatives that have been analyzed, 4) The description of the environmental factors that may be exposed to the impact, 5) The description of major harmful impacts of the project on the environment, 6) The description of the measures envisaged for the purpose of prevention, mitigation, and elimination of major harmful impacts, 7) Non-technical summary of data from 2)-6), 8) Data on possible difficulties encountered by the project owner in collecting the data and documentation, 9) Other data and information at the request of the competent authority. The following documentation shall be submitted with this application: the Information on the Location or verified Urban Design (issued within a period of maximum one year), the preliminary design, or the excerpt from the preliminary design, graphical presentation of the macro- and micro-location, requirements and approvals from other competent authorities, evidence of payment of the tax, and other evidence at the request of the competent authority.
Within 10 days, the competent authority shall notify the interested public about the submitted application. The interested parties must submit their respective opinions within 15 days as of the date of receipt of the notification. Within 10 days, the competent authority shall hand down the decision on the scope and contents of the impact assessment study. The decision shall be submitted to the project owner and to the interested public within 3 days.
The project owner and the interested public may lodge an appeal, and the competent second-instance authority shall hand down the decision within 30 days from the date of receipt of the appeal.
The detailed procedure for making the environmental impact assessment study for a power plant is regulated by the Law on Environmental Impact Assessment and by the bylaws under this Law (*81). This Law stipulates that the concrete environmental impact assessment study for a power plant is an integral part of the documentation, which shall be submitted with the application for the construction permit or with the report on commencement of the project implementation (construction, carrying out of the work, change of technology, change of activity, and other activities).
The impact assessment study shall contain: 1) The data on the project owner; 2) The description of the location; 3) The description of the project; 4) Presentation of the main alternatives of the project that have been analyzed; 5) Presentation of the state of the environment at the micro- and macro-location; 6) The description of possible major impacts of the project on the environment; 7) Assessment of the impact on the environment in case of an accident; 8) The description of the measures envisaged for the purpose of prevention, mitigation, and elimination of any major harmful impacts on the environment; 9) The program of monitoring of the impact on the environment, 10) Non-technical short presentation of the data specified above; 11) Data on technical deficiencies or non-existence of adequate expert knowledge and skills or inability to obtain relevant data. The obtained requirements and approvals of the other competent authorities and organizations shall also be submitted with the study. The study shall also contain the basic data on the persons, who have participated in making the study, on the person in charge thereof, date of making the study, signature and seal of the person in charge thereof, as well as the seal of the licensed organization, which has made the study, and which is registered for preparation of this type of documentation in the Business Registers Agency. (*82)
Maximum within one year from the date of receipt of the final decision on the scope and contents of the impact assessment study, the project owner shall be obliged submit the application for the approval of the impact assessment study. The impact assessment study (3 paper copies and 1 copy in electronic form) and the decision of the competent authority from the previous stage of the procedure shall be submitted with the application.
The public authority shall ensure public insight in, the presentation of, and public debate on the study, and it shall notify the interested parties about its time and venue within 7 days. Public debate may be held within minimum 20 days from the date of the notification.
Within 10 days from the date of receipt of the application for the approval, the competent authority shall form the Technical Commission for evaluation of the impact assessment study. Three days after the Technical Commission has been formed, the study shall be submitted to the Commission for evaluation. Upon completion of the public insight in it, the competent authority shall submit the Report with the overview of the opinions of the interested parties to the Commission within three days.
At the proposal of the Technical Commission, the competent authority may request from the project owner to make amendments and supplements within a certain time period.
The Technical Commission shall submit the report with the evaluation of the impact assessment study and a proposed decision to the competent authority within 30 days from the date of receipt of the documentation from the competent authority.
Within ten days from the date of receipt of the Report from the Technical Commission, the competent authority shall notify the interested parties about the decision approving this study or about the rejection of the application for the approval on the impact assessment study, specifically about: 1) The contents of the decision; 2) The main reasons on which the decision is based; 3) The most important measures, which the project owner shall undertake for the purpose of prevention, mitigation, or elimination of harmful impacts. The (discontented) project owner and the interested public may institute an administrative suit against the specified decision.
The Law on Environmental Impact Assessment also regulates the procedure of updating the Environmental Impact Assessment Study due to the lapse of time. It is necessary to point to the fact that the validity of the Decision on Approval of the Impact Assessment Study is two years, within which time period the project owner shall commence the construction of a power plant exceeding 10 MW. Upon expiry of this deadline, the competent authority may hand down the decision on the making of a new impact assessment study or on updating the existing one. This decision shall be handed down on the basis of the application of the project owner. The same decision shall also be handed down in case the project owner must deviate from the documentation on the basis of which the impact assessment study for a power plant exceeding 10 MW has been made. In the latter case, the application for the approval of the updated impact assessment study shall be submitted prior to submitting the application for the construction permit.
The Law on Environmental Protection stipulates that the Ministry of Environment and Spatial Planning shall issue the preliminary consent on the approval for the use of natural resources or assets. This consent shall verify fulfillment of requirements for and measures of sustainable use of natural resources, or assets (air, water, land, forests, geological resources, plant and animal life) and environmental protection in the course of and after termination of engaging in the activities. (*83)
Details of Relevant Legislation:
(*41) The Rulebook on Contents, Scope, and Manner of Producing Pre-feasibility and Feasibility Studies for Construction of Structures (Official Gazette of the RoS, No. 80/05).
(*42) The Rulebook on Requirements and Procedure for Issuance and Revoking of Licenses to Urban Planner-in-charge, Designer-in-charge, Contractor-in-charge and Planner-in-charge (Official Gazette of the RoS, Nos. 116/04, 69/06).
(*43) The Rulebook on Method, Procedure, and Contents of Data Required for Assessing Fulfillment of Requirements for Issuance or Revoking the License for Preparation of Technical Documentation and the Construction License, which approval for construction is issued by the relevant Ministry or by the Autonomous Province (Official Gazette of the RoS, No. 114/2004).
(*44) The Rulebook on Scope and Method of Doing Review of Main Designs (Official Gazette of the RoS, No. 36/98).
(*45) Criteria and Standards for Setting Energy License Fees for Engaging in Energy-related Activities Official Gazette of the RoS, Nos. 14/06, 40/06,126/07, and 120/08).
(*46) The Decision on Coefficient Value for Calculation of Energy License Fee for Engaging in Energy-related Activities for 2010 (Official Gazette of the RoS, No. 109/09).
(*47) The energy permit is not required for small wind power plants of a capacity below 1MW.
(*48) The Law on General Administrative Procedure (Official Gazette of the RoS, Nos. 33/97 and 31/01).
(*49) Article 208 of the Law on General Administrative Procedure stipulates that the deadline for issuing of the decision by the competent administrative authority is one month, if it is not necessary to undertake a special examining procedure, or maximum two months as of the date of a duly submitted application. General deadline for an appeal is fifteen days as of the date of receipt of the first-instance decision, unless the law stipulates otherwise. Article 236 of the Law on General Administrative Procedure stipulates that, in case the administrative authority fails to issue the administrative decision for the issuing of which the application has been submitted, upon the expiry of the deadline for handing down of the decision, the applicant shall be entitled to lodge an appeal because the first-instance application has not been decided on.
(*50) In parallel with the procurement of a copy of the plan, the recommendation is to also apply for a transcript of the title deed for the subject cadastral lots from the real estate cadastral service, in order to identify the owner of the land.
(*51) The Rulebook on Contents of Information on Location and Contents of Location Permit (Official Gazette of the RoS, No. 3/10).
(*52) Article 133 of the Law on Planning and Construction stipulates that the structures that are within the competence of the Ministry of Environment and Spatial Planning, or of the competent authority of the Autonomous Province – include the structures 50 meters high and over (point 5); structures that are within the boundaries of a national park, and structures within the boundaries of protection of a protected outstanding natural asset (point 9); structures for power generation from renewable energy sources of a capacity of 10 MW and over (point 20). Articles 30 and 34 of the Law on Nature Protection define a national park, nature park and, when protected areas are in question (apart from the type of protected area), protection zones are also established in which certain protection regimes are implemented (when it is possible to prohibit construction of certain types of structures).
(*53) In addition to the energy license, the Energy Law stipulates the procedure for undertaking the public invitation for tenders. This procedure is undertaken in case there is no application for the energy license for construction of a future facility and the planned time schedule of construction of energy facilities cannot be ensured, and there is a need to provide safety in supply of electricity. The Government shall decide on the initiation of the public invitation for tenders. The public invitation for tenders shall be announced by the Ministry of Mining and Energy, or by a unit of local self-government, according to the procedure regulating concessions.
(*54) The criteria for construction of electricity generating facilities are as follows: 1) Fulfillment of the requirements for safe and unobstructed functioning of the electric power system; 2) Fulfillment of the requirements for designation of the location and land use; 3) Requirements for environmental protection; 4) Requirements with respect to the measures for protection of the health of people and safety of people and property; 5) Requirements related to energy efficiency; 6) Requirements for the use of primary sources of energy.
(*55) The feasibility study of construction of the energy facility, for which the energy license is applied for, shall contain in particular: 1) Objectives of investment with the basic data on the investor; 2) The analysis of the current state - spatial location of the facility, its function, and importance in view of the type and capacity of the energy facility; 3) Market analysis – the method of generation, procurement, takeover, and sale of electricity and energy commodities; 4) Technical description of the plant and technological processes – operating mode and the method of exploitation of the plant; 5) The analysis of energy efficiency of the structures with the data on energy and energy commodities to be used; 6) The planned deadline for construction of the energy facility and service life of the energy facility; 7) The analysis of the procurement market; 8) The analysis and assessment of the selection of the location, analysis of possible impacts on the environment with the proposed measures for environmental protection, relationship with respect to natural and cultural and historic assets, impact on climate, surface and ground waters, flora, fauna, and soil; 9) Financial analysis of the assessment including calculation of the required investments and sources of financing and obligations with respect to the sources; 10) Sensitivity analysis and analysis of the risk of the investment; 11) Analysis of the sources of financing and financial obligations (own funds, domestic sources, foreign and international sources, guarantees, and liabilities); 12) The analysis of the organizational and staff capacities (organization, staff potential); 13) Proposed measures concerning the requirements for and method of regulation of relationships in case of a temporary or permanent termination of operation, or exploitation of the energy facility; 14) Proposed measures to be undertaken for the purpose of protection of the energy facility and proposed measures, which will define all the required parameters for possible restart of operation of the energy facility at a later stage. By its contents, this Feasibility Study is the closest to the Preliminary Feasibility Study including the general design.
(*56) The analysis of possible impacts on the environment with proposed measures of environmental protection is described in more detail in Chapter 2.2.5 hereof.
(*57) The Energy Law, the Decree on Conditions of Electricity Delivery, the Distribution Grid Code, and the Transmission Grid Code specify the procedure for connection of the producer’s facilities to the electricity grid. Neither the Decree, nor the Codes, or indeed any other regulations regulate the procedure for issuing the opinion of the energy entity in charge of transmission, or of distribution of electricity in the procedure for issuing the energy license. In view of the above fact, this procedure does not have a specific form, but the economic operator, whose facility should be connected to the electricity grid, when preparing the application for such an opinion, should submit as many documents as possible, which are necessary for connection of the facility to the electricity grid or, if he/she does not have such documents, at least as many data as possible, which the specified documents should contain. The application for connection to the electricity grid has been dealt with in Chapter 6 hereof.
(*58) Drafting of the Rulebook amending the Rulebook on Criteria for Issuing Energy Permits, Contents of the Application, and Procedure for Issuing Energy Permits is under way, according to which some of the documents, which are required with the application for the energy permit, are amended. According to that draft, it is necessary to submit the following with the application for the energy permit: 1) The Information on Location or the location permit issued within a period of maximum one year (if issued), 2) The Preliminary Feasibility Study, 3) Relevant statement of a bank that is willing to support the applicant or the investor in financing the construction of the energy facility, 4) The opinion of the operator of the electricity transmission or distribution system on the requirements for and possibilities of connection of the new facility to the system.
(*59) Prior to the adoption of the new 2009 Law on Planning and Construction, there had been a discrepancy between the provisions of the Rulebook on Criteria for Issuing Energy Permits, Contents of the Application, and Procedure for Issuing Energy Permits and the provisions of the Law on Planning and Construction with respect to the priority in issuing the except from urban development plan and issuing of the decision on urban development requirements and the energy permit. This discrepancy was avoided by deletion of the terms: the decision on urban development requirements and the excerpt from the urban development plan. Instead of them, the terms: the location permit and the information on location were introduced.
(*60) The deadline for issuing of the requirements for connection is 30 days; more about this can be found in the footnote No. 50 hereof.
(*61) Related to the obtaining of the documentation necessary for issuing of the location permit for power plants, there are cases where certain documents (on the right to use the land, technical documentation...) are required for issuing of different decisions.
(*62) This evidence for issuing the location permit is completely the same as for issuing the construction permit. As evidence of the ownership right, or of lease of the construction land for construction or for carrying out of the work on the construction land or on the facility, which is owned by a number of persons – a certified consent of such persons is also to be submitted.
(*63) When construction of wind power plants of a capacity of 10 MW and more is in question, the decision of the competent authority establishing the public interest for expropriation, in compliance with a special law, or the access easement agreement with the owner of the servient estate, shall serve as the evidence of the ownership right for issuing of the location permit.
(*64) In practice, for obtaining the location permit, the General Design or conceptual design is prepared and submitted, which contains all the required data.
(*65) The Rulebook on Contents of Information on Location and on Contents of Location Permit.
(*66) Provisions of the Law on Planning and Construction, in this case, are not quite clear because, on the face of it, they suggest that it is not necessary to form a building plot for construction of a power plant. However, Article 69, paragraph 1 prescribes that, for construction of electric power facilities, a building plot of a smaller area may be formed than the area envisaged in the planning document for the particular zone, provided there is an access to the facility, or equipment, for the purpose of maintenance and elimination of defects or accidents. Also, the same Article, paragraph 5 stipulates that, for construction of wind power plants of a capacity of 10 MW and over, the building plot repre
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