Hydro Power Plants and Minimal Flow
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HYDRO POWER PLANTS AND MINIMAL FLOW Christa Meyer Swiss Greina-Foundation (SGS) Switzerland Swiss Greina Foundation (SGS) • SGS founded in 1986 • Non-governmental organisation • Between Grisons & Ticino surrounded by the Swiss Alps Greina high plateau: surrounded by the Swiss Alps Swiss Greina Foundation (SGS) • Initial aim (1986) was the rescue of the Greina high-plateau (2000 m / 6‘560 ft) • Current focus on safeguarding alpine river-flow regions & hydro power regulations concrete dams for the production of hydro power NOK power plant • power plant project in 1957 • 80m dam project to flood the Greina plateau • expected: 225 mio Kw/h of peak energy • successful struggle for the preservation of this unique landscape GREINA high plateau facts & figures •In 2006, 60% of Swiss electricity needs were covered by hydro power plants •International comparison: 56.6% (leader Norway: 98.8%) •90% of running waters are industrially utilised •4037 of 4485 running waters •primarily in alpine regions residual water flow: effects when flow is limited • Floodplains - the so called „rain forests“ of Europe - only survive if their roots of plants are sufficiently nurtured by water • low residual water leads to mud in the river bed & increases the amount of algae • changes in water temperature- and stability • quality of river shores are worsened: detrimental effects on numerous insects, amphibians and reptiles without residual water flow legal aspects : water laws • 1975 : Swiss sovereign votes for a new article in the constitution, regulating the securement of appropriate residual water flow. • 1991 : Federal law on the protection of waters effectuated. • „It shall legislate on water protection, on securing adequate residual water, on hydraulic engineering, on the safety of dams and on interventions to influence precipitation.“ (art. 76 para. 3; federal constitution) • article 31 minimal residual water flow 1. When withdrawal takes place from a permanently flowing watercourse, the minimum residual water flow must be as follows: • up to 60 l/s rate of flow 50 l/s • for 160 l/s rate of flow 130 l/s • for 500 l/s rate of flow 280 l/s • for 2,500 l/s rate of flow 900 l/s • for 10,000 l/s rate of flow 2,500 l/s residual flow • from 60,000 rate of flow 10,000 l/s power plant legal aspects : problems • art. 32 : circumstances causing decrease of residual water flow are described at full extent • art. 33 : no binding regulation on the increase of residual water flow • Swiss Greina Foundation produced an overview of water law regulations concerning residual flow. legal aspects: the two-stage proceeding • stage 1: An absolute life-sufficient minimal standard has to be imposed (based on actual observations on site) • stage 2: Minimal residual flow is not yet „adequate“. Minimal residual flow has to be increased individually. Basic criterion has to be a value above the absolute minimal standard. (Only increases are to be considered) compensatory payments • stage 3: • only by concessions given before 1992 • preserving of minimal residual water flow or even suitable residual flow causes financial loss for hydro plant owner • therefore the administration is obliged to pay compensatory payments water rights concessions • definition: • The concession is the disposition of the right to maintain a monopolised activity or even special activity of a common matter. • 80 years is the max. legal concession period • public waters are common matter. Using them assumes a concession of the community (in Switzerland given by the cantons). water rights concessions • new concessions: Concessions given after implementation of the water protection law (1992). Art. 29 et sqq. of the water protection law are to be disposed • renewals: Facilities with concessions given before 1992, that are renewed or expanded are treated similar to new concessions. • concession received before 1992; concession not yet expired: concession is still working because max. time limit of 80 years not expired concessions given before 1992; not yet expired • problematic cases: • because concession period not yet expired and no big changes or amelioration • vested right, art. 43 water rights law vested rights • art. 43 water rights law • 1 the concession provides the concessionaire according to the conferment act a vested right for using the water. • 2 The once conferred right of use can only be reduced or even taken back by reasons of the public weal and against full compensatory payment vested rights • is a Swiss institution • the content is irrevocable because of protection of confidence and law consistent and therefore under the protection of the guarantee of properties • intrusion in the substance of the vested right is only allowed if the economic constraints allow the increase of residual water flow (jurisdiction of the federal court) 5% loss is acceptable redevelopment, Art. 80 water protection law • Article 80, redevelopment • 1 In cases where a watercourse is substantially affected by water withdrawals, it shall be redeveloped below the point of withdrawal according to the instructions of the authorities in so far as such redevelopment is possible without causing infringements of existing water utilisation rights which would require compensation. • 2 The authorities shall order more extensive redevelopment measures in cases which concern watercourses situated in landscapes or including biotopes which are listed in national or cantonal inventories, or in cases where overriding public interests require it. The procedures for ascertaining whether indemnities must be paid and for fixing their amount shall be based on the procedures contained in the Federal Law on Expropriation1) would require compensation. meaning of redevelopment, art. 80 • what does the criterion „substantially“ in art. 80 mean? • means, that there is an under-usage of the minimal residual water flow • problem: the redevelopment has to occur without producing a compensatory payment. • but vested rights do not allow an intrusion in the substance (means that the use of hydro power and the resulting economic worth can‘t be inhibited or even substantially reduced) redevelopment, art. 80, execution • 1040 water withdrawals in 21(of 26) cantons • 491 need redevelopment • 119 redevelopment in progress or finished • only few redevelopments respect the minimal residual water flow (art. 31 water protection law) need in progress rest execution of redevelopment, art. 80 • the execution is incumbent on the cantons • the legal discretion opens a wide range of the execution • cantons are involved in hydro power plants redevelopment, Art. 80 water protection law • our opinion: legislator did not determine in art. 80 quantitative minimal residual flow water because art. 29 et sqq. are applicable • no norm, that explicitly excludes the application of the minimal residual flow water (art. 31 water protection law) gains from hydro power • The gain of the 183 electricity companies in 2005: 2.2 Mia. CHF (2.2 billion). • electricity tariff (peak electricity) raised permanently: 15.0 • 1998: 3.4 Rp./kWh 11.3 • 2006: 12.4 Rp/kWh 7.5 3.8 0.0 1998 1999 2000 2001 2002 2003 2004 2005 2006 • the electricity consumption has risen: 2005: 57,8 Mia. kWh conclusions • hydro power plants are able to maintain higher amounts of residual water improvements • 1. landscape centime • Community gets compensatory payments for renouncement of building hydro power plants • Art. 22 para.3 water rights law • The federation pays compensatory payments for financial penalties caused by not using hydro power if the financial penalties are a consequence of the conservation and preservation of worthy landscape of national meaning. improvements • 2. law of electricity • current discussion in the parliament: the network operators should receive a bonus for the costs caused by transmitting electricity produced of renewable energies if they renew or redevelop existing hydro power plants outlook • ideas and proposals exist • the Swiss Greina-Foundation will give its best in order to realise ideas and proposals. • During difficult moments it will not abandon its fight for nature by changing or establishing new laws that protect nature, landscape and the alpine river-flow..