International Conference on Water Management in Federal and Federal-Type Countries: Spain Report

INTERNATIONAL CONFERENCE ON: WATER MANAGEMENT IN
FEDERAL AND FEDERAL-TYPE COUNTRIES
SPAIN REPORT*
Author: Antonio Embid Irujo
Professor of Administrative Law, Law Faculty, University of Zaragoza, c/ Pedro
Cerbuna 12, 50001 ZARAGOZA (SPAIN). e-mail: aembid@unizar.es; tel. + 34.
976.76.14.33
Abstract: In Spain, the polemics about the distribution of competences over water and
hydraulic works between the State and the Autonomous Communities begin with the
promulgation of the Constitution in 1978 given its vague terms in section 149.1.22. Over
time and with the intervention of the Constitutional Court, a solution has been reached
consisting of attributing the management of river basins that cover the territory of more
than one Autonomous Community (intercommunity basins) to the State and the
management of the river basins that are situated entirely within the territory of an
Autonomous Community (intracommunity basins), to that Community. However, this
solution is subject to tensions and the latest reforms of some Statutes of Autonomy pose
new political challenges in this regard. A particularly problematic question is usually that
of the transfer of water resources between different territorial limits of river basin planning,
which usually entail territorial conflicts (with political and social aspects), in some cases of
considerable magnitude. Likewise other questions with a territorial impact are currently
being discussed such as the Autonomous Communities reports in administrative procedures
decided by the State, the existence, content and functionality of the so-called “right to
water”, etc….
Key words: Competences, Autonomous Communities, River Basin, Right to Water,
Autonomous Community Reports, Basin Authorities, Transfers between different territorial
limits of river basin planning.
* The text, although initially prepared for the dates when the Conference was held,
has been updated on 1 November 2008.
2
CONTENTS:
LIST OF ACRONYMS.
I.- GENERAL INTRODUCTION.
II. THE DISTRIBUTION OF COMPETENCES IN SPAIN ON WATER AND
HYDRAULIC WORKS BETWEEN THE STATE AND THE AUTONOMOUS
COMMUNITIES. THE SITUATION DERIVED FROM THE STATUTORY
REFORMS OF 2006-2008.
1.- Competences on water. Concept and extension of the « exclusive » competences of
the Autonomous Communities on water of their own basins.
2.- Competences on hydraulic works.
3.- Cession of the Andalusian part of the Guadalquivir basin to Andalusia and of the
Castilian-Leonese part of the Duero basin to Castile-Leon.
A) The case of the cession of the Andalusian part of the Guadalquivir basin to
Andalusia.
B) Cession of the Castilian-Leonese part of the Duero basin to Castile-Leon.
4.- Issue of reports by the Autonomous Communities on administrative proceedings
on which the State must decide.
III.- THE CONCEPT OF RIVER BASIN AND ITS ROLE IN SPAIN.
IV.- THE PROBLEM OF TRANSFERS OF WATER RESOURCES BETWEEN
DIFFERENT TERRITORIAL LIMITS OF RIVER BASIN PLANNING. THEIR
PRESENCE IN THE REFORMED STATUTES OF AUTONOMY.
1.- The transfers of water resources between territorial limits of different River Basin
Plans.
2.- The transfers of water resources in the new Statutes of Autonomy.
V.- THE WATER FRAMEWORK DIRECTIVE OF 2000 AND THE
PRINCIPLES DERIVED FROM IT ON THE ADMINISTRATION OF RIVER
BASINS.
VI.- CONCLUSIONS.
BIBLIOGRAPHIC SOURCES
3
LIST OF ACRONYMS.
AC.……………….. Autonomous Communities
SA…………………..Statute of Andalusia (2007)
SAr………………….Statue of Aragon (2007)
SC…………………..Statute of Catalonia (2006)
SCL…………………Statute of Castile-Leon (2007)
SCV.……………….. Statute of the Community of Valencia (2006)
SIB ………………… Statute of Illes Balears
OL………………….Organic Law
SJCL………………. Spanish Journal of Constitutional Law
DCC…………………Decision of the Constitutional Court
DSC…………………….. Decision of the Supreme Court
TRLA……………….Texto Refundido de la Ley de Aguas (Written Text of the Water
Law) 2001
4
I. GENERAL INTRODUCTION.
This Report is prepared at a time when there have been strong discussions in Spain for
some time over the distribution of competences over water between the State and the
Autonomous Communities, as well as over other water-related questions that the new
reform phase of the Statutes of Autonomy has brought to light once again, that is, if it had
ever disappeared from the limelight. In that discussion framework there are different
controversies relate to the correctness or incorrectness of some of the formulas used in
these Statutes, both constitutionally and technically speaking. With this brief introduction I
only wish to highlight the deep political meaning of present-day discussions with respect to
which the legal arguments necessarily go almost unnoticed, even when the solution of
many of these controversies must, necessarily, have a legal vestment given the appeal that
has been brought before the Supreme Court against some of these Statutes of Autonomy as
I will later recall.
Indeed, that statutory reform process started in 2006 with the parliamentary
processing of the SC and the SCV and continues today. We would be in the second phase
of statutory reforms commenced after the initial drafting of the Statutes of Autonomy
(1979-1983) and the reforms of the Statutes of Autonomy of the AC with limited initial
autonomy that were carried out from 1994 until 2000. At that time and during that second
phase the reforms which had been approved included those for the SCV (LO 1/2006, 10
April 2006), SC (LO 6/2006, 19 July 2006), SIB (LO 1/2007, 28 February 2007), SA (LO
2/2007, 19 March 2007), SAr (LO 5/2007, 20 April 2007) and SCL (LO 14/2007, 30
November 2007). Drafts were also formulated in connection with the Canary Islands and
Castile-La Mancha, although these did not manage to conclude the approval process in the
State legislature that ended in March 2008. On the date of conclusion of these pages (1
November 2008), the admission to processing of the draft Statute of Castile-La Mancha has
taken place in the Congress of Deputies, which also contains important references to water,
the most singular of all of these being the declaration of expiry of the Tagus-Segura transfer
foreseen for 2015.
As I have mentioned, this reform process has brought about great controversy, with
appeals to the Constitutional Court on grounds of unconstitutionality against several of the
Statutes of Autonomy mentioned above1. Aragon formulated an unconstitutionality appeal
against the SCV, namely against its article 17.1 that regulated the right of the citizens of
Valencia to distribute excess water from surplus river basins. The DCC 247/2007 (12
December 2007), settled the appeal by stating that it was not possible for the Statutes of
Autonomy to regulate rights relating to the competences of the respective AC. The
aforementioned article was thus reduced to a guiding principle for the exercise of the public
powers of Valencia, which, in any case, are subordinate to the State’s directions in
connection with the waters of the intercommunity basins.2
1 This means that a decision of the CC, which appears at any time, can make any one or many of the
arguments contained therein absolutely essential.
2 The Decision mentioned, apart from what I sum up in the text, which is quite significant, is very
important, too, based on some other statements made therein, which may even be predetermining other future
5
Likewise, the Autonomous Community of Extremadura has lodged constitutional
appeals against articles of the Statutes of Autonomy of Andalusia and Castile-Leon, which
foresee the cession of the Andalusian and Castilian-Leonese parts of the Guadalquivir and
Duero River Basins, respectively.
La Rioja, on its part, has lodged an appeal of unconstitutionality against the Statutes
of Autonomy of Catalonia and Aragon, in relation, also, to precepts that assume
intervention of the AC on water. As one can see, only the Community of the Illes Balears
has “kept out” of these appeals (that is, by not suing or being sued), which is very probably
due in part to the fact that it is an insular Community and, therefore, all waters within its
territory belong to the competence of the Community.
Really, these controversies are not new and have existed since the very moment the
Spanish Constitution (1978) was drafted and from the first Statutes of Autonomy (1979-
1983). As we will see in section II of this work, the Spanish Constitution sought a formula
for distributing competences in its article 149.1.22 based, in principle, on hydrological
criteria (reference to “waters” with certain characteristics). This formula has irremediably
required interpretation due to its extremely indeterminate nature. This need for
interpretation has subsequently extended to the formulas used by the Statutes of Autonomy
of 1979-1983. These formulas followed, of course, the diffuse constitutional path and their
interpretation was only solved, although seemingly only provisionally, by DCC 227/1988,
given in the appeal of unconstitutionality against Water Law 29/1985 (2 August 1985).
The decision established a certain method of interpreting the constitutional and statutory
precepts, which the CC considered adapted to the Spanish Constitution. However, the CC
did point out, in the aforementioned decision, that this was not the only possible formula.
Indeed, in a country with strong political decentralisation such as Spain, the reason for
the controversy lies –apart from the obvious importance of the evanescent nature of the
constitutional distribution criterion- in the difficulty of formulating principles of
government that are derived from the political autonomy of the AC that is aimed to be
exercised in their entire territory, which could be deduced from the fairly named “natural”
concept of the river basin. Territorial political power and natural hydrographical division
are not usually coinciding concepts and it is very difficult to articulate them with a certain
degree of coherence in all the countries that share decentralised State territorial construction
principles (section III).
All of this leads to continuous controversies which were also greatly aggravated when
the State decided to carry out water transfers between territorial limits of different river
basin plans. This implied movements of water between different AC, too (or within the
Decisions of the CC in connection with the theory that is based on the role of the Statutes of Autonomy in
respect of its delimiting nature over the distribution of competences between the State and the AC (in general,
not only on water) and given the practical « deconstitutionalisation » of the majority of the legal framework of
the State of the Autonomies. See critically FERNANDEZ FARRERES (2008) who disavows the entire
Decision and the answer to that work in some of the statements of the constitutional magistrate M. ARAGON
REYES (2008) pages 149-152. By way of criticism, but only for the theory established in this Decision in
connection with the impossibility of the Statutes of Autonomy regulating the rights of citizens related to the
competences of the AC, vid EMBID IRUJO (2008).
6
same Community, as occurs, paradigmatically, with the case of Catalonia although there
are also examples in Andalusia) which meant that conflicts flourished. For example, the
National Hydrological Plan of 2001 supported the execution of a large water transfer from
the Ebro River Basin to different basins of the Mediterranean Arc. This was abolished
when there was a change in the governing party as a result of the general elections of 14
March 2004 (section IV).
The complex legal problem that is being narrated has developed, as a member state
of the European Union, within the context of the application of EC Water Framework
Directive (2000/60/EC, 23 October 2000), which establishes a community framework of
action within the field of water policies. Its basic requirements in connection with
organisational questions need to be examined (section V): The work finishes with some
conclusions (section VI).
II. THE DISTRIBUTION OF COMPETENCES IN SPAIN OVER WATER
AND HYDRAULIC WORKS BETWEEN THE STATE AND THE AUTONOMOUS
COMMUNITIES: THE SITUATION DERIVED FROM THE STATUTORY
REFORMS OF 2006-2008
I shall begin, then, with the question of distribution of competences over water and
hydraulic works in Spain, which has been briefly introduced in the previous section and
which necessarily forms the main element of this work. I say this to insist that this remains
an essential question subject to continual discussion and debate, both during the actual
origin of our current legal system, the Spanish Constitution of 1978, and now.3
As substantial elements of this statement, I am going to successively analyse: the
competences over waters (1) and hydraulic works (2); the question of the cession of the
Andalusian part of the Guadalquivir and of the Castilian-Leonese part of the Duero to the
Autonomous Communities of Andalusia and Castile-Leon respectively, which took place in
the latest statutory reforms (3); and the issue of reports by the AC in administrative
procedures where the State has the ultimate say (4).
3 The entire issue of competence with reference to the new Statutes of Autonomy is analysed with
slightly more detail in EMBID IRUJO (2007 a), page 13 and following and in EMBID IRUJO (2007 b), page
313 and following in the part “Competences of the State and of the Autonomous Communities”. Valid
bibliographic references can be found there for the content of the Spanish Constitution (1978) and of the
Statutes of Autonomy of the first phase (1979-1983). I omit these here for obvious reasons, but I must
acknowledge the obvious worth of many of these doctrinal interventions (those of S. MARTINRETORTILLO
BAQUER or A. MENENDEZ-REXACH, which are worth a special mention, for instance).
A specific position must be granted, in any case, to the magnificent book by GALLEGO ANABITARTE,
MENEDEX REXACH AND DIAZ LEMA (1986) where the questions of competence also play a relevant
role. See, too, the book of plural content by CARO-PATON and MACERA (2002).
7
1. Competences over water: Concept and extension of the “exclusive” competences
of the Autonomous Communities over waters of their own basins
The controversial situation, as I have mentioned, was generated with the actual
promulgation of the Spanish Constitution in 1978 and continued with the subsequent
approval of the Statutes of Autonomy, a process that lasted from 1979 to 1983. Over those
years, the formal origin of the discussion was the vague sentence of article 149.1.22 of the
Spanish Constitution which described the competence of the State as being over « the waters
flowing through more than one Autonomous Community ». This was equivalent to leaving
a “space” for the competences of the Autonomous Communities in connection with the
waters that only flow through their territories. This was if, obviously, these AC could also
choose these competences pursuant to the preparation procedure of their Statute of
Autonomy (that is, for those Autonomous Communities with full initial or first degree
autonomy as they were defined at the time). But what the constitutional article – and the
statutory provisions that followed it – did not solve was the understanding of the expression
“waters that flow” which could be equivalent to isolated rivers that flow out into the sea, to
river tributaries or to an entire river basin.
It is obvious that the interpretation was not neutral; if the equivalent of the
constitutional expression of article 149.1.22 CE were that of the river basin (a greater
referenced surface area) the State would practically have the monopoly of competences
over waters in Spain. Whilst it would be the AC that could aspire to have very substantial
competences over waters if the legal interpretation were to choose the concept of river or
tributary, which implied much less surface area and, therefore, increases the probability that
this could be located within the territory of one single Autonomous Community.
The controversies on the question did not formally end until the 1988 decision of the
Constitutional Court (DCC 227/1988, 29 November 1988), which considered the criterion
of distribution of competences pursuant to Water Law 29/1985 (2 August 1985) to be
adequate. The Court affirmed the interpretation of the constitutional expression in Law
29/1985, which equated « waters that flow » to « river basins ». Therefore, river basins (as
defined in Law 29/19854) which extended through the territory of two or more Autonomous
Communities were within the competence of the State and those included in the territory of
a single Autonomous Community were subject to being the object of the competence of the
Community if the latter was able, pursuant to the constitutional basis of the preparation
process for its Statute of Autonomy, to legitimately access this competence.5
Paradoxically, in this specific case, one of the AC appealing before the Constitutional
Court, the Community of the Balearic Islands (as they were then known in Spanish
4 Art. 14 indicated that “for the purpose of this Law, river basin is understood as the territory in which
the waters flow to the sea through a network of secondary courses that converge in one single main course.
The river basin, as a resource management unit is considered indivisible”.
5 Cf articles 15 and 16 of Water Law 29/1985. The “political” limitation mentioned in the text would
not be overcome until Organic Law 9/1992 (23 December 1992) (result of the Autonomic Agreement of
February that same year). From then on, the requirement to have water competences was only geographical:
having territorial spaces within the limits of the Autonomous Community that respond to the concept of river
basin used by Water Law 29/1985.
8
language), though insular, and therefore, with waters exclusively enclosed within its
territorial limits, could not hold competences over its basins due to having prepared its
Statute via the procedure marked in article 143 of the Spanish Constitution and, therefore,
with competences that were limited to the list present in article 148 of the Spanish
Constitution, which did not include waters.6
The decision endorsing the river basin interpretation of Water Law 29/1985 (2 August
1985), was not, obviously, the only possible way of understanding article 149.1.22 of the
Spanish Constitution but, in the opinion of the Constitutional Court, the decision of the
Legislator of 1985, was congruent with the Constitution based on technical, local and
experience criteria (legal basis 15). But – and I insist on this because the question may
have important consequences in the future – it was not the only possible way to correctly
develop the Constitution.7
Finally, one could be tempted to say that all of this is history, but it is history that is
worthwhile remembering because one necessarily must use what has already been
established when carrying out a study and giving judgment about the regulatory novelties
contained within the reformed Statutes of Autonomy. In any case, an exhaustive study –
yet another – should not be undertaken of that jurisprudence or of the theory that preceded
it or subsequently explained it, at least for the subject matter of this work, which has such a
specific aim regarding the references to the current regulatory moment.
The truth is that although DCC 227/1988 represented a certain pacification in many of
the issues discussed until that time, it did not put an end to the lack of satisfaction that
certain AC expressed in connection with water management8. Proof of this is that the
6 Under this option of the Water Law 29/1985, the Basin Organisations (River Basin Authorities) were
configured as autonomous State organisations. However, these could be joined by the Autonomous
Communities whose territory fell within the specific limits of the respective Basin Organisation (cf articles 20
and following). All the AC exercised the specific options and joined the Basin Organisations that
corresponded to them. On this issue, in general, see FANLO LORAS (1996).
7 FANLO LORAS (2007) p. 293 and LOPEZ MENUDO (2008) p. 54; they consider the reservation
that the Constitutional Court made regarding the possibility of there being other legal interpretations different
to that which is considered to adapt to the Spanish Constitution (DCC 227/1988) to not be very important.
However, I believe that we must not ignore any expression used by the Constitutional Court in its
jurisprudence, especially when, in this specific case, if this expression were to be ignored, this would be the
equivalent of considering the criterion of the river basin as decisive for the distribution of State-AC
competences as constitutionally established; in other words for ever, until perhaps possible constitutional
reform affects this interpretation. This, to my knowledge, would be the only case where a Constitution of a
politically decentralised State uses this criterion (in the Spanish case this would not be expressly so, but
pursuant to an interpretation of the Constitutional Court which, for these authors, would already be specified;
I do not consider, and I expressly insist in this regard, that this is the consequence that must be taken from the
DCC 227/1988).
8 The considerable increase, to date, in the number of AC not satisfied with the policy and distribution
of competences on water (globally, or related to specific questions), with respect to the AC that came before
the Constitutional Court in 1985, can be verified and would require a more in-depth study that obviously goes
beyond the legal framework. These AC include Andalusia, Aragon, Castile la Mancha, Castile-Leon and
Catalonia –at least- as shown by the many facts and data of legal and political content.
9
Constitutional Court had to again intervene9, always respecting those principles established
in DCC 227/1988, which is obviously congruent with the maintenance of the validity of the
legislation (Water Law 29/1985) which acted as the basis for its emanation.10 Apart from
the conflicts formalised, many different political representatives, -and also in the doctrine,
obviously-, continued to express opinions about the existing contradictions between the
affirmation in the Statutes of Autonomy of certain exclusive competences of the AC (for
example, on agriculture or industry) and the lack of direct intervention of those same AC on
water, an essential auxiliary element to exercise these competences. This idea, by the way,
can be fully shared, as it is the logical conclusion from an existing state of affairs with
respect to which, objectively, one can only confirm.
It was not necessary, therefore, to be a prophet to realise that if a regulatory type
procedure were again commenced in which the aim was to decide on the competences of
the AC on water (statutory reform), opinions opposed to certain parts of the status quo
would once more appear. These conflicts would at least have to be reflected in the
regulation process, regardless of the final result of the statutory reform processes. In
addition, there may also be a certain resentment that the bitter controversy surrounding the
transfer from the Ebro River Basin to the Mediterranean Basins by Law 10/2001, (5 July
2001), of the National Hydrological Plan, and its subsequent abolition (by Royal Decree-
Law 2/2004 appealed against as unconstitutional by the AC of Valencia and the Region of
Murcia and a political group, later converted into Law 11/2005 of 22 June, which has also
been appealed) has left in the different AC that are “parties” to this transfer, either as
“grantor” territories or “receiver” territories. This adds still more elements to the “fire” or
“catharsis” of the preparation of the statutory reform. Furthermore, and in the case of some
Autonomous Communities such as Castile-La Mancha, the Tagus-Segura transfer is a
current reality, not just a hypothetical reality in the future as occurred with Law 10/2001 (5
July 2001). This is considered by that region as a permanent territorial wound that is hoped
will be cured on the occasion of the preparation of the new Statute of Autonomy in order,
as from its promulgation, to progressively achieve the future use of the waters of the Tagus
River Basin only in the territory of the actual basin. I will return to this later.
9 I refer to the legislation of different AC on ecological or minimum flows that has been contested
before Constitutional Court. The Court has at times, with decisions, which, with greater or lesser emphasis,
disavowed the autonomic attempts to attribute competences exclusively based on the establishment of these
flows. Cf. DCC 15/1998, (22 January 1998), DCC 110/1998 (21 May 1998), DCC 166/2000 (15 June 2000)
and DCC 123/2003 (19 June 2003).
10 Very representative of this type of reply is the content of the DCC 161/1996 (17 October 1996),
issued in an appeal against a Catalan regulation on Hydraulic Administration. The Constitutional Court will
affirm that “the most direct way that the Autonomous Community has to have an influence on the interests
affected by the administration of the waters in the basins, which, like the Ebro or the Garonne River basins,
extend beyond their territory, is via their participation in the governing bodies of the relative River Basin
Authorities, in the terms foreseen by the state legislation, always respecting the constitutional framework that
includes the collaboration principle between the State and the Autonomous Communities as the main
principle. The actions that each one of the regional Administrations may directly carry out on the waters of
the river basins that flow through several Autonomous Communities are only accessory to the actions that
they develop by participating in the administration and management of the actual River Basin Authority and
are only feasible insofar as its action does not interfere or disturb it”.
10
Now I would like to insist on the fact that the new Statutes of Autonomy are, in
general, situated within the boundary of the current constitutional jurisprudence (with the
important nuances that will be highlighted in this work), although there are some
peculiarities such as the greater profusion in the use of the concept of “exclusive
competences” of the AC over waters of their own basins.11 This seems to collide with the
competences that the State also maintains over these waters and which at times have an
exclusive nature and, at others, establish basic legislation12. This would lead to believe that
the new Statutes of Autonomy have exceeded their authority on this conceptual question.
Really, the question announced here (and as a relevant commentator has said about
these problems of competence), is one of mere perspective, as if the concept of exclusivity
is constructed in connection solely with some aspects of a power or with the whole of a
specific power that an Autonomous Community enjoys in connection with a certain matter,
it can be said that it has exclusive competence over it insofar as a specific exercise of power
cannot be hindered by the State.13
Under those conditions and expressly recalling article 117.1 of the SC (which has
acted as a model or inspiration for the others), the exclusive competence of Catalonia over
the waters of its own basins14 covers:
a) The administrative organisation, planning and management of surface waters
and groundwater, of water uses, as well as hydraulic works.
b) The planning and adoption of specific protection and management measures
and instruments for water resources and the aquatic and land ecosystems linked to water.
c) Extraordinary measures, if required, to guarantee the water supply.
d) The organisation of the water administration of Catalonia, including the
participation of users.
e) The regulation and execution of actions related to the concentration of plots
of land and irrigation works”.
I believe that the entire precept adapts fully to the Constitution, even though the
existence of some constitutional conditions, which qualify the dimension of that exclusive
competence and offer their real profile, has not been expressly recalled therein. But the fact
11 In that line, see article 117.1 SC , article 50.1 SA and article 72.1 SAr…
12 Exclusivity was also part of some Statutes of Autonomy of the first period. See, for example, article
9.16 of the SC of 1980
13 Cf FERNANDEZ FARRERES (2005), p. 305, note 16.
14 The Statutes of Autonomy also refer to the existence of competences on intercommunity waters,
those of State management. With respect to these and given the need to contain this work within limits of
reasonable space, I refer to EMBID IRUJO (2007 a) and (2007 b).
11
that the Constitution is not expressly recalled does not mean that it does not exist15 and that,
therefore, within the plane of legal interpretation, it does not have to be used to complete
the legal regime of a partial regulation – as occurs in so many fields of the practical life of
law. Thus, how can one not take into account, in this interpretative plane, the existence of
article 149.1.18 of the Spanish Constitution regarding (basic) state competences over the
administrative concessions or over the legal regime of the Public Administrations. This
constitutional precept exists and the SC has not been able to avoid it. Its terms have simply
not been repeated, thus following the tendency of the AC in the first period of reform, both
in the field of water and other subject matters. This does not mean that the legal agents do
not heed the constitutional diction in their respective work when applying the relevant
statutory precepts.
The same occurs with respect to hydrological planning. The exclusive competence
over this planning in connection with intra-community basins is affirmed in the Statute, but
article 149.1.13 of the Constitution contains the role of the State with respect to the
coordination of economic planning. It is that coordination activity that the Constitutional
Court used in Decision 227/1988 to sustain the constitutionality of the attribution to the
State of the approval of hydrological planning of intra-community basins in Water Law
29/1985. Therefore this planning operates, not as an expression of the administrative
hierarchy– which would be impossible in the relationship between the State and AC based
on their autonomy established in articles 2 and 137 of the Constitution – but as an element
that operates with other expressions of the economic planning and the National
Hydrological Plan (cf legal basis 20d in connection with article 38.6 of Water Law
29/1985).
In the case of the SA, it is article 50, section 1, that describes the competences over
the “waters that integrally flow through Andalusia” with which it links up terminologically
with what article 149.1.22 of the Constitution expresses, devoting section 2 to describe the
competences over inter-community waters or basins (it is in this section where the
expression “intercommunity water uses” appears). The text is slightly different to that of
the SC but it contains the same idea of exclusive competence; as in the previous case, I
believe that its content fully adapts to the Constitution, as the same interpretation of the
expression “exclusive competence” that I have indicated above, can be made.
Thus, that Andalusian competence covers “water uses and resources, canals and
irrigation, when the waters flow through Andalusia” and, from the standpoint of
constitutionality, nothing can be said against this mention, as it corresponds perfectly to
what, on the contrary, article 149.1.22 of the Constitution reserves to the State.
The precept mentioned also grants competences to Andalusia over “groundwater
when its use does not affect another territory”. The expression seems, initially, to be at
odds with the interpretation that the Constitutional Court offered in its Decision 227/1988
(legal basis. 16), on the question of distribution of competences over groundwater. In that
15 In some works I have spoken about a “fill of constitutional loyalty” with continuous mentions to the
Constitution that follow appellations that clearly appear to be unconstitutional as is the case of article 17.1 of
the SV and its regulation of the right to distribute excess waters from surplus basins. See EMBID IRUJO
(2007 a), p. 33
12
case and in connection with “renewable” groundwater, the Court affirmed that these were
included in the respective basin and, therefore, competence over this groundwater belonged
to the entity that had competence over the basin. The criterion of “use” that does not affect
“another territory”16 is not, therefore, the determining factor of the distribution of
competences for the Constitutional Court. The determining factor for the Court is the
respect for the principles of the hydrological cycle and, therefore, the inclusion of the
controversial renewable groundwater in the basin it belongs to, where a certain relationship
of continuity is established with surface waters.
It cannot be ignored that the definition of river basin has varied as a result of the
transposition in 2003 of EC Water Framework Directive of 2000. Article 16 of the TRLA,
which defines the river basins, refers only to a “surface of land whose surface runoff flows
entirely through a series of currents, rivers…”; therefore there is no mention, not even the
possibility, of including groundwater in the definition -which did occur in the old definition
of basin of Law 29/1985-.
But groundwater is now taken into account in the definition of the new concept of
river basin district contained in article 16a of the TRLA whereby “river basin district is
understood as the “land and marine area comprised of one or several neighbouring river
basins and the transition waters, groundwater and coastal waters associated with these
basins”. Groundwater arises, then, in the context of the definition of river basin district and
as a material reality “associated” with a basin (which initially and exclusively includes
surface waters). This logically entails its incorporation into the broader river basin district
territory, which is where groundwater is taken into account. Thus, a change has occurred in
the general configuration of groundwater, although I do not think that this change is so
important as to lead to substantial variations on the current situation, which should be
considered in more depth.
The current regulation regarding aquifers (or hydrogeological units) distributed
among different river basins and how they are managed must not be ignored. The general
principle is formulated by article 16, section 3 of the TRLA17 (this precept was added on the
transposition of the EC Water Framework Directive in 2003), which expands the previous
principles in articles 7 and 8 of Appendix I of Law 10/2001 (5 July 2001) of the National
Hydrological Plan. Law 10/2001 defines shared aquifers as those that are situated “in
territorial areas of two or more River Basin Plans” (article 7.1) prescribing both a
delimitation system and the allocation of the water of each shared aquifer among the
16 Indeed, the word “territory” is quite ambiguous in this context and also requires interpretation. It
can only refer to the fact that it does not affect any other territory than the Andalusian territory, namely any
other “Autonomous Community”.
17 The precept indicates that “the aquifers, which do not fully correspond to any particular district,
will be included in the nearest or most appropriate district, and that the part of an aquifer corresponding to its
respective territorial limit may be attributed to each one of the districts; and in this case, a coordinated
management must be guaranteed via the appropriate notifications between districts affected”.
13
different basins (article 7.2).18 This determines the way in which each basin organisation
manages the volumes allocated, but under the principle of cooperation and with the
possibility of assignments between organisations (article 8).
It seems that the mention of groundwater in article 50 of the SA is the only
appropriate way of interpreting the Constitution. Andalusia, through the basin
organisations of its own intra-community basins, would exercise competences over the
groundwater associated with these basins or, in any case, over the resources assigned to it
by the State legislation or planning on aquifers shared between several basins (or more
correctly, between territorial limits of different River Basin Plans), which would be the case
whereby groundwater would not affect other territories.
The SA also grants exclusive competence over mineral and thermal waters, which is
logically coherent with article 148.1.10 of the Constitution.
Finally, the SA provides for exclusive competence of the Autonomous Community
over the participation of users, the guarantee of water supply, land plot regulation and
works to transform, modernise and consolidate irrigation and for the efficient saving and
use of water. These concepts are each very different, with different underlying legal
realities, so they require a much more in-depth study.
First, there is nothing decisively opposed to the allocation of exclusive competence
over the participation of the users, even though today the existence of an article in the
TRLA (article 18.1.b) must not be forgotten, which requires the AC to provide that no less
than one third of the members that constitute the Water Administration are users’
representatives. The basic nature of this rule was accepted as such by the Constitutional
Court19. Therefore and if this mention of the state legislation does not disappear, it is
binding the Autonomous Community of Andalusia, thus underscoring –in the current state
of affairs, I insist- the exclusive nature of that competence which would, rather, be shared
in practice. To argue that the Statute attempted to prevent the application of principles
such as article 18.1.b of the TRLA in Andalusia would – once again – go against the reality
of State competences derived from article 149.1.18 of the Constitution on the legal regime
of Public Administrations, since determining the presence of users in different
administrative bodies unmistakeably shows this basic regime of the hydraulic
Administration, regardless of the percentage that might be established20 or any other
specific way of referring to this presence.
18 In the case of river basins situated in Andalusian territory, Appendix I, mentioned above, allocates
resources between the basins of the Guadiana I and of the Guadalquivir (Hydrogeological Unit of Campo de
Montiel), Guadiana II and Guadalquivir (Hydrogeological Unit of Almonte-Marismas), and Guadalquivir and
Sur – this basin is transferred now to Andalusia – (Hydrogeological Units of Sierra de Líbar, Sierra de Cañete,
Sierra Gorda-Polje de Zafaraya and Tejera-Almijara-Las Guájaras) in certain quantities that are immaterial in
this work.
19 Cf. DCC 227/1988, legal basis 21 e, which refers to the “natural” origin of this basic rule.
20 It could always be disputed, however, if the establishment of a “fixed” percentage as, in this case,
of a third, could not be improved from the perspective of the basic legislation and development legislation
14
The guarantee of water supply is a concept that is not relevant to the present
discussion because, in a strict sense, it refers to aspects of the local services of urban supply
or, in any case, to concessionally granted flows, whatever their destination. This would,
therefore, be a reference that should fall within the concessional regime and its relative
principles, overt which the State may establish basic legislation (article 149.1.18 of the
Constitution).
Finally, the last concepts reflected in the precept examined are more related to
actions that must be understood as included within agricultural issues (where the AC have
exclusive competences according to their Statutes of Autonomy), knowing, however, the
difficulties that exist when considering the distribution of competence in the field of
irrigated agriculture. In any event, the competences over water and agriculture, which have
been discussed, operate within Andalusian intra-community basins only and are therefore
unlikely to present any interpretation and management difficulties in the future21.
2. Competences on hydraulic works.
I refer now to the competences on hydraulic works; thus, we must necessarily refer to
the concept of “hydraulic works of general interest” which are State competences.22 The
State traditionally assumes this competence by means of a declaration of the general
interest of a work,23 even when there is a legal specification of what is understood by
hydraulic works of general interest since the reform of Water Law 29/1985, operated by
article 46 of Law 46/1999 (13 December 1999). Also, according to the Constitution (article
149.1.24) public works – and therefore hydraulic works too – that affect two or more
Autonomous Communities are within State competence.
The independence of the competence over hydraulic works from the competences
over waters has been well established for a long time. It is possible for the State to exercise
competence over hydraulic works (those declared of general interest) within the territory of
an intra-community basin (which falls within the competence in relation to water of the
Autonomous Community where the basin is located) and, in turn, for an Autonomous
Community to also exercise competence over hydraulic works (of autonomic interest)
within the territory of an inter-community basin (of State competence). Everything, I insist,
depends on the work being considered of “general interest” for the State (according to the
criteria in article 46 of the TRLA) and, therefore, of the formal assumption, or not, of
relationship (and the constitutional position of the AC), with references in the basic regulation to a
« framework”, to a more flexible system than that of a fixed percentage.
21 In any case, it should be recalled here that the only article of the Statute of Autonomy appealed
before the Constitutional Court (by the Autonomous Community of Extremadura) is article 51, relating to the
exclusive competence of Andalusia over the part of the Andalusian basin of the Guadalquivir. Article 50,
which the discursive process contained within the text deals with, has not been appealed.
22 The Constitution refers, generically, to State competence over public works in article 149.1.24.
23 Cf. EMBID IRUJO (1995); see also subsequently MARTIN-RETORTILLO BAQUER (2000) and
then EZQUERRA HUERVA (2007).
15
competence by the State.24 And if it has not been declared of general State interest, it will
be of regional interest and with the possibility of execution and exploitation by the
respective Autonomous Community regardless of where this work is located.
Several articles of the recently reformed Statutes of Autonomy have a bearing on this
briefly described reality and which aim to divert “executive” competence over works of
general interest towards the respective Autonomous Community, but “in the terms
established in the State legislation”. This is affirmed by article 117.2 of the SC which
provides that the Community may “participate in the planning and programming of the
works of general interest which correspond to it [under State law]”.
In the case of Andalusia, article 50.2 of its Statute acknowledges executive
competence of the Autonomous Community over the execution and exploitation of works
of State ownership by prior agreement. Article 72.3 of the SAr moves along the same line,
expressing that it corresponds to the Autonomous Community “to execute and exploit the
works of State ownership, if this is established by agreement…”
All the precepts mentioned, therefore, adapt perfectly to the Constitution insofar as
they do not attribute competences directly to the AC mentioned over the execution and
exploitation of the hydraulic works that fall within State competence, but within the
framework of agreements (Andalusia and Aragon) or in the terms established in the State
legislation (Catalonia). This referral to the State legislation also represents, among other
things, a way of naming the agreements, between the State and the Communities, given the
generic prevision of these in article 6 of Law 30/1992 (26 November 1992), on the legal
system of Public Administrations and on the common administrative procedure, and apart
from specific mentions that which may exist in specific pieces of water regulation. There
are many agreements that have taken place until now between the State and the AC25 on this
matter, and these, I believe, on the basis of current signs, will increase in the future.
In any case, the fact that a Statute of Autonomy can attribute to the Community
management competence over works of general interest for the State would not, in any
case, be a novelty in the current statutory reform process. Recall article 11.8 of the SC of
1980 (among other Statutes of Autonomy) that attributed executive competence to the
Generalitat (regional government of Catalona) on “ports and airports qualified as of general
24 Given the obvious relativity of the distinction of competences over hydraulic works, in my work
“Hydraulic Works” (1995) I considered the last “criterion” that could be used to differentiate or separate the
works of State competence from the works whose competence belongs to the AC. In the absence of any
defining legal rule (as article 46 of the TRLA has later been), I answered that the criterion could only be the
size or importance of the hydraulic work associated with a certain financing that could not be assumed by the
Autonomous Community (cf. EMBID IRUJO, 1995, page 94 and following and 115 and following). That is
the reason why, until now, there have not been any State-Community conflicts in this field, but rather there
has been considerable interest by all the AC in achieving from the State the declaration of works to be of
general interest, or, more recently, of locating a work as one within the definition in article 46 of the TRLA
(which, in any event, usually always includes works of important economic cost).
25 To the extent where I even suggested the existence of a “tertium genius” of hydraulic works
alongside the works of general interest and of regional interest: those agreed between State and Autonomous
Communities. On this issue see EMBID IRUJO (1995), page 116 and following.
16
interest, when the State does not reserve its direct management”. The reformed Statutes of
Autonomy recognise management competences over hydraulic works within the framework
of agreements or subject to State legislation, but they are more cautious – although they
lead to the same result – than the example provided by article 11.8 of the 1980 Catalonian
Statute.
3. The cession of the Andalusian part of the Guadalquivir River Basin to Andalusia
and of the Castilian-Leonese part of the Duero River Basin to Castile-Leon
A) The case of the cession of the Andalusian part of the Guadalquivir River Basin to
Andalusia
One of the most outstanding provisions of the SA is its article 51, which deals with
the “exclusive” competence of the Autonomous Community of Andalusia over waters of
the Guadalquivir River Basin that flow through its territory and do not affect any other
Autonomous Community. Undoubtedly it is the fact that the majority of the Guadalquivir
Basin is Andalusian (due to territorial extension, importance of exploitations and the
number of people affected compared with the total number of people living in the basin)
which is in the origin of the text. However, it does not, in principle, seem entirely
consistent with the Constitution, understanding as such the interpretation of the phrase of
article 149.1.22 of the Spanish Constitution (« waters flowing through more than one
Autonomous Community ») according to the concept of basin that was first decided by
Water Law 29/1985 (2 August 1985) and which the Constitutional Court in its Decision
227/1998, legal basis 15, later considered to adapt to the Constitution due to “logical,
technical and experience” criteria as I have mentioned above and bearing in mind that the
Constitutional Court did not, under any circumstances, express that its theory were the only
possible way of interpreting art. 149.1.22 of the Constitution.
The Andalusian Statute submits the conferral of “exclusive” competence over the
Andalusian part of the Guadalquivir Basin to a series of « precautions ». Thus, the
competence is exclusive only: where the waters do not affect another Autonomous
Community; and without prejudice to the general planning of the hydrological cycle, of the
basic rules on environmental protection, public hydraulic works of general interest or “that
foreseen in article 149.1.22 of the Constitution”. The caveats in the article are very
important and some of them are worthy of specific comment.
The SA placed special emphasis on the fact that the ceded waters are only those
which do not affect another Autonomous Community.26 Thus, one may think, the
constitutional article (article 149.1.22) that simply attributes to the State competence over
26 The intellectual origin of this concept “affects” another Autonomous Community and referring to
waters could be in article 149.1.24 of the Constitution which, in connection with public works, attributes to
the State competence over those of general interest and also over those “whose execution affects more than
one Autonomous Community”. The Statute of Andalusia has, then, mixed constitutional concepts related to
water and to hydraulic works in the search for a new criterion for the distribution of competences that adapts
to the Constitution.
17
the waters that “flow” through the territory of more than one Autonomous Community is
respected. The State would continue to manage the waters of the Guadalquivir Basin that
flow through more than one Autonomous Community and that affect other Autonomous
Communities different to Andalusia, whilst the Andalusian Autonomous Community
would manage the waters which, although belonging to a basin that extends through the
territory of more than one Autonomous Community, do not affect other Communities of
the Basin. Having said this, it is understandable that we are faced with an almost scholastic
type digression where the reader is firstly asked to believe in the existence of this type of
waters and secondly, that this existence can, in practice, be clearly delineated. Thus, the
personal and material means corresponding to the competence assumed by the Statute can
thus be transferred, as occurs with all the other statutory attributions on different matters.
As I indicated in a work originally published in 2007, these assumptions may be
correct from a technical viewpoint, although in my opinion they may be quite difficult to
demonstrate. Such demonstration is above all quite difficult to carry out within a combined
Commission on Transfers comprised of the State and the Autonomous Community of
Andalusia, which would be a logical consequence of article 51 of the SA. However, the
agreement on transfers was signed on 20 September 2008, having being approved by the
Council of Ministers at its meeting of 17 October 2008 and valid as from 1 January 2009.
In any case – and linking this idea up with another of the parts of article 51 –a perfect,
unanswerable delimitation could only be done on the basis of a new hydrological planning
method that indicates -one of its primary objectives– which waters of the Guadalquivir
River Basin are not affecting other Communities and are therefore subject to cession to the
Andalusian Community without constitutional concerns.27 In this case, the efficiency of the
article would really have to be postponed until this hydrological planning has been
approved (in other words, if the requirements and timelines in the TRLA are satisfied,
within a period of time concluding 31 December 2009).
An obvious temporal question also needs to be resolved: does the “non-impact” referred to
in article 51 refer to the current state of affairs only or is it projectable into the future, too?
I mean that it is perfectly possible for waters to be theoretically granted to the Autonomous
Community of Andalusia because they do not currently affect any other Community, due,
for example, to the absence of hydraulic infrastructures that would permit their diversion
towards any other Autonomous Community.28 But, however, this possibility cannot be
27 This must occur in a participative and transparent way, with contributions from everyone, as is the
formal legal requirements of hydrological planning.
28 It is clearly noticeable here how a criterion of “affected” in the SA, which, as I have mentioned
above, seems to be inspired by article 149.1.24 of the Constitution related to the competence over works, may
not be readily transferable to an essentially flowing element – water – and whose use in one Autonomous
Community or another may depend, precisely, on the execution of hydraulic works. In any case, we must
remember that the impact of a hydraulic work must always refer to the impact of the resource that such a
work regulates or channels. It is finally clear that even with the transfer to the Autonomous Community of
Andalusia, this does not mean that a hydraulic work may be carried out in the future that will permit redirecting
the water currently attributed to Andalusia, to another Autonomous Community of the basin. All of
this basically depends on the hydrological planning and on the respect for the administrative procedures
foreseen to approve and execute the hydraulic work.
18
rejected unequivocally, in the future, as we must not forget that we are talking about all its
capacities and possibilities.
All of this consolidates the ideas expressed above about the difficulty of the topic
that concerns us and if it is appropriate or not for it to be the Constitutional Court that must
finally give judgement over the constitutionality of the statutory prevision.29
In any case, one more comment should be made on the last caveat or precaution of
the precept I am mentioning, the reference to article 149.1.22 of the Spanish Constitution,
constituted as the end of the conditions of the exercise of the exclusive competence of the
Autonomous Community of Andalusia. That sentence – in the context of current State
legislation and the jurisprudence of the Constitutional Court, and I place emphasis on the
word “current”– may mean practically the denial of the competence that the beginning of
the article seems to affirm. It would not be possible to have competence over part of a river
basin subject to the provisions of article 149.1.22 of the Constitution, if this same
constitutional precept, pursuant to the Constitutional Court’s interpretation in Decision
227/1988, precisely, denies the possibility of Autonomous Communities having this
competence, by exclusively reserving it for the State because the waters –basins- are
intercommunity waters regardless of whether they affect another Autonomous Community
or not. All of this must, I insist, be considered with the clear understanding that the
Constitutional Court has only said that the interpretation of the Water Law 29/1985 (2
August 1985) adapts to the Constitution, and not that other interpretations of the law could
be adopted by State legislation that might also be constitutional; the Constitutional Court
has explicitly stated that the Water Law is not the only possible way of interpreting the
terms of article 149.1.2230.
The above discussion demonstrates that article 51 of the SA is clearly confusing and
has internal contradictions, which, when appropriate, would finally end up in the
Autonomous Community being denied the competences, which, paradoxically, the same
article seems to confer. In this case, the fact that the waters affect another Autonomous
29 It is advisable to point out that even though the constitutional adaptation is decided within the
framework of the relative conditions that art. 51 of the SA already contains in a abridged manner, the
adaptation of the TRLA will depend on the new legal situation, as the TRLA adapts entirely to another
regulatory framework which DCC 227/1988 considered was in agreement with the Spanish Constitution as I
have already mentioned earlier in this work.
30 I have already mentioned above that the hypothetical decision of the Constitutional Court that the
only possible interpretation of the constitutional expression of « waters flowing » of article 149.1.22 of the
Constitution were a river basin, would be the only case –as far as I know, and one never knows the extent of
one’s own ignorance- of world constitutionalism –relating to politically decentralised states, obviously- where
the criterion of river basin were the only way of interpreting or understanding the Constitution with respect to
the subsequent distribution of competences that must exist in any politically decentralised state between the
“Federation” or central State, and the federate states or entities. In any case, the underlying aspect of this
entire problem is the understanding of the expression “river basin” which is, in no way, the same in all the
States. There is, of course, a specific concept in the 2000 Water Framework Directive (applicable today,
therefore, to 27 European countries), but the concepts of river basin vary in theory and in practice in countries
outside these 27 European countries.
19
Community or not should not be taken into account, therefore, as a first condition.31 As I
have already indicated above, an appeal has been brought before the Constitutional Court
against the article by the Autonomous Community of Extremadura which will, therefore
have the opportunity to resolve the serious doubts that I have just put forward.
The truth is, however, that there are more than sufficient objective reasons for
Andalusia to be able to effectively manage the Andalusian part of the Guadalquivir Basin
provided its management does not endanger – either now or in the future – the positions of
other Autonomous Communities or the powers of the State and, that this be the guiding
element for the decisions to be adopted on it.32 But this cannot be achieved by the formula
in article 51 of the Statute of Andalusia, unless the Constitutional Court substantially
qualifies its indication in DCC 227/1988 using, as an initial base, what it has already
indicated about Water Law 29/1985 not being the only possible interpretation of the
Constitution33. It must be achieved using other constitutional possibilities. This will have
to be looked into with more attention and at greater length at another time.
B) The cession of the Castile-Leon part of the Duero Basin to Castile-Leon
The SCL also provides for the cession to the Community of and exclusive
competence over (article 75.1) the waters of the Duero Basin “which have their source in
Castile-Leon and divert to Portugal without crossing any other Autonomous Community”
31 This sentence of article 51 of the EA should be analysed with the “logical, technical and experience”
criteria that the Constitutional Court refers to, which would take us quite a lot further than what can be
undertaken here. In any case, the word “impact” is an indefinite legal concept that would necessarily require
legal interpretation tasks (what is impact?), which are reserved for the State legislator. It is not impossible,
either, that this same State legislation may be considered to be contrary to article 149.1.22 of the Constitution
due to its mere existence (note, in this regard, DCC 5/1983 referring to the LOAPA [Organic Law on the
Harmonisation of the Autonomy Process], and where the Constitutional Court denied the State legislator
interpretative powers, although a considerable jurisprudential change has occurred in this topic. DCC
247/2007 has even affirmed the interpretative capacity of the Constitution of the Statutes of Autonomy,
understanding, obviously, that this interpretation may be judged from a material viewpoint as adapting to the
Constitution).
32 There are other issues that underlie the problem examined here and which I must mention for
completeness: the complete reserve to the State, as occurs today, of the decision possibilities about water
extremely narrows other decision possibilities of the exclusive competences of the Autonomous Communities
where the water element is decisive for its exercise: consider, above all, agriculture, but industry would also
fit in here, as these are both fields where all the Statutes of Autonomy affirm the existence of exclusive
competences of the Autonomous Communities. On the issue of distribution of competences between State
and Autonomous Communities on water, there is still a lot to be said, and it is an unavoidable requirement to
go deeper into the material and organisation criteria of our constitutional system, without partial visions and
bearing in mind, also, the general directive of efficiency which, as a valid constitutional principle, for all the
Public Administrations, is contained with article 103.1 of the Spanish Constitution.
33 And the reference to the hydrological planning should play a key role in clarifying the issue, as an
instrument of the State to bring up to date the extension of the waters which, because they do not affect any
other Autonomous Community, are subject to exclusive management by the Autonomous Community of
Andalusia.
20
and “given the relevance that the Duero Basin has as a configuring element of the Castile-
Leon territory”.
Though using different terminology, the criterion used in the Statute of Castile-Leon
is similar to the criterion we have just contemplated in the case of the assumption of
competences of the Guadalquivir by Andalusia. In this case, the key was that the waters
whose competence was assumed did “not affect” any other Autonomous Community. Here
the question is whether “they divert to Portugal without crossing any other Autonomous
Community”. If the basic criterion is the same, the same should also be said in connection
with this competence; its presumed incompatibility with the interpretation by the
Constitutional Court of article 149.1.22 of the Constitution in DCC 227/1988 unless the
Constitutional Court were to change its views. And, of course, the need for there to be a
preliminary regulatory and/or planning process that explains without any doubt whatsoever
which waters fall within the Community’s exclusive competence.
In any case, I do believe it is necessary to reject the fact that the “international” nature
(better still community nature) of the Duero Basin is an obstacle to its possible partial
cession to the Autonomous Community of Castile-Leon. An outright rejection is not
required by the current legal system. The Spanish State must continue to satisfy a series of
obligations (towards Portugal and towards the European institutions) derived from the
nature of the basin, but the relevant international law (I am thinking about the so-called
Albufeira Agreement of 1998 signed between the Kingdom of Spain and Portugal and the
previous agreements that are still valid) or the community law (the existence of a supranational
limit34 in the sense of the 2000 EC Water Framework Directive) do not have the
slightest interest in which State organisation within the national frontiers exercises
particular competences over the basin.
And I conclude by affirming the same for Castile-Leon as what I have indicated for
Andalusia, but, in this case, with even greater emphasis, if possible: due to its territorial
extension, the importance of the uses and the population affected, the Duero River Basin
should belong almost entirely to Castile-Leon and there should be an action method for the
Autonomous Community to have the ultimate jurisdiction over all the waters that may be
considered as “belonging” to the Community. With the expectation that has arisen about
what the Constitutional Court may say about this Statute in the future, there are other
constitutional procedures that place decisive importance on the management of the
“Castilian-Leonese” Duero basin by the Community of Castile-Leon, and, further, certain
regulatory modifications have been made to the organisation of the state river basin
organisations to be able to achieve this aim. The rigidity of the Constitutional Court’s
interpretations should never lead to lack of effectiveness in the life of the organisations and
institutions; the role of the jurists, apart from the – often – easy affirmation of
unconstitutionality, is to find pathways to ensure law and effectiveness become terms that
can be combined together.
34 That is why the RD 125/2007, (2 February 2007), which establishes the territorial limit of the river
basin districts, has referred to the “Spanish part of the river basin districts corresponding to river basins shared
with other countries” (article 3).
21
4. The issue of reports by the AC on administrative procedures where the State has
the ultimate say.
In the general terms with which I am dealing with these questions, I must now refer to
another characteristic, a general one, too, of the current statutory reform. This
characteristic is the different ways in which the Autonomous Communities participate in
processes whose final decision belongs to the State. Thus, the issue of reports by the
Communities or their participation in the State processes to adopt decisions on hydraulic
works of general interest, transfers or others, are regulated in the new statutory texts.
It has been alleged that the regulation of these reports would represent an interference
or disturbance in State competences and that, therefore, its presence in the reformed
Statutes of Autonomy would be unconstitutional.35 My opinion, however, is contrary to this
and I also believe that the intervention of AC in processes where the resolution competence
falls upon the State is a symptom of good constitutional health. Neither the content of the
State’s decision nor its competence is disputed, as the only aim is for the State to have
another opinion and for this to be expressly formalised: that is, the opinion of the
Autonomous Community on its obvious “interest”, territorially speaking, that a final State
decision may affect.
It is possible – I do not know – that when the State of Autonomies in Spain was
founded, the position that I now openly propose could have been expressed more
emphatically and with greater conviction. But I believe that almost 30 years after the
approval of the first Statute of Autonomy (of the Basque Country in 1979), with the real
experience of the working of the State and the existing Constitutional Court jurisprudence,
rejecting (on the basis of constitutionality), the provision in the reformed Statutes of
Autonomy for non-binding reports by the AC, or the mere participation in decision
processes by the State, represents an incorrect understanding of what the Constitution and
the State of Autonomies mean. I say so for the following reasons:
a) As the Constitutional Court has said many times, the collaboration between public
entities is a constitutional principle that is not expressly written but which is essential for
the working of the State of Autonomies.36 The fact that typical formulas for collaboration
like those I am considering could be argued to be unconstitutional due to their presence in
the relevant standard of the constitutionality block seems aberrant to me37 or, from another
35 For example, in the appeal formulated by the members of the popular parliamentary group against
the SC. But there are also doctrinal documents with that content.
36 DCC 34/1993 (30 July 1993), mentions the collaboration obligation as an “elementary principle of
relationship” and DCC 18/1982 (4 May 1982), says that it is a “general obligation that need not be justified in
specific articles … is implicit in the actual essence of the territorial organisation method of the State that is
implemented in the Constitution”.
37 It is commonplace in the discipline – which is why no specific quotes are necessary – to express
the regret for the express lack of collaboration mechanisms between State and AC in the Constitution. The
22
viewpoint, it could also be interpreted as a confession by those expressing views of regret at
the loss of the centralist State (although this may not be the direct opinion of these
commentators).38
b) Ordinary laws have been gradually including collaboration processes like those
included now in the Statutes of Autonomy that I am discussing, and the Constitutional
Court jurisprudence has indicated these laws are perfectly constitutional providing they are
not non-binding (cf. DCC 40/1998). One might say that these facts that I am commenting
have been developed in State laws that, of course, the State can freely modify. But they
have also appeared in Community laws not – regularly – appealed by the State.39 All of
these regulatory presences are merely the recognition of that implied constitutional
principle – and I insist on this idea – of collaboration.
c) Following DCC 247/2007 /2 (12 December 2007), it seems undeniable that these
collaboration formulas that I am referring to can perfectly well form part of the content of
the Statutes of the Autonomies. And, in addition, that this insertion would, in some way or
another, oppose the Constitution, the only possible parameter of constitutionality of the
Statutes of Autonomy. We can see how, in legal basis 12 of the Decision mentioned,
following an in-depth study into the constitutional function of the Statutes of Autonomy
present in art. 147.2 of the Constitution, the possibility of the Statutes of Autonomy
containing previsions that go beyond that strictly foreseen in article 147.2 of the
Constitutions is categorically stated. These previsions, for example, will refer to
relationships between the community powers and the state powers, a relationship that
collaboration agreements between the AC are only regulated in article 145.2 of the Spanish Constitution.
Therefore, the incorporation of the reports mentioned in the text as a relevant element of the constitutionality
block is reason for satisfaction.
38 On the other hand, the Constitutional Court in DCC 227/1988, has previously referred to the need
for State and AC to collaborate with the following words, which, although pronounced in a general fashion,
will be applied later in the paper to the specific field of water: “The projection over one same physical
medium or natural resource of different areas of competence in favour of the State or of the AC requires
collaboration between both Administrations. This collaboration ‘is essential for the good working of the State
of the Autonomies’ as this Court has indicated, due to a generic relationship with cases such as the one set out
now, in DCC 76/1983, (5 August 1983). Furthermore, this overlapping of competences, as mentioned, leads
to the coordination between the Administrations involved, as that decision also declares; a coordination that
corresponds to the State insofar as the objectives of economic planning are affected. After establishing this, it
must be stated, too, that neither the competence on coordination nor the competence on the planning basis
authorise the State to attract any competence of the Autonomous Communities towards its sphere of activity,
due to the mere fact that its exercise may have an influence on the development of the State competences on
certain matters”.
39 Different Territorial Organisation Laws of AC acknowledge the existence of compulsory reports of
the AC on State planning processes. See, for example, the Territorial Organisation Law of Andalusia of 1994
that foresees reports from Andalusian bodies on the hydrological planning prepared by the State. Likewise,
Law 1/2001, of Aragon (which has been appealed by the Government of the Nation, before the Constitutional
Court due to the inclusion of the requirement for reports from an autonomous body – the Territory
Organisation Council – on the State hydrological planning, although the Constitutional Court later raised the
suspension of the Aragonese Law and the Government of the Nation finally withdrew the appeal) goes in the
same direction.
23
would include –I believe there can be no doubts about this, at least based on a legal
reasoning process- everything related to the principle of collaboration:
“All of this derives in the fact, finally, that the Statutes of Autonomy may normally
contain, not only the determinations expressly foreseen in the constitutional text we have
referred to, but also other questions, derived from the provisions of article 147 of the
Constitution, relating to the functions of the community powers and institutions, both in
their material and organisational dimensions, and relating to the relationships of these
powers and institutions with the remaining state and community public powers, on the one
hand, and with the citizens, on the other”. (the italics are mine).
And slightly further on this initial decisive statement is complemented with the
following, also very important, words:
“The indications given justify the fact that we have to consider that the legitimate
content of the Statutes is not limited to the literal stipulations of articles 147.2 and 3 of the
Constitutions and other expression constitutions provisions, but that this content is linked to
the dispositive principle in the terms set forth. However, this content cannot be understood
diffusely, based, among other reasons, on its especially rigid nature. In short, the
constitutionally legal content of the Statutes of Autonomy include both the content that the
Constitution expressly foresees (and which, in turn, is comprised of the minimum or
necessary content foreseen in article 147.2 of the Constitution and the additional content
that the remaining express referrals that the Constitution makes to the Statutes refer to), as
well as the content that, although not expressly indicated by the Constitution, is an
adequate complement due to its connection with the aforementioned constitutional
previsions. This adequacy must be understood as referring to the function that, in a strict
sense, the Constitution entrusts to the Statutes, as regards a basic institutional standard
that must carry out the functional, institutional and competence regulation of each
Autonomous Community”. (the italics are mine)
d) Finally, and in another order of affairs, the presence of reporting or participatory
requirements in certain procedures of State competence must not be considered, in any
way, as a kind of “imposition” of the Autonomous Community on the State. On the
contrary, I believe that the Autonomous Community is just as interested in issuing a formal
opinion on the exercise of State competences, as the State is in achieving that opinion to be
more certain of the appropriateness of its final decision. In this regard, the origin of the
rules I am dealing with could lie both in the initiative of statutory reform exercised by the
AC and in the parliamentary procedures of the General Courts that process these statutory
initiatives. This does not matter because, I insist, the mechanism that we are dealing with is
essential for an efficient working of the State of Autonomies and therefore its presence in
such relevant rules of the constitutionality block should never be considered
unconstitutional, but as a representative example of the practical vigour and efficiency of
the State of the Autonomies.
I will return to the matter of reports later when I deal with the question of water
transfers between territorial areas of different River Basin Plans. The possibility of the
24
issue of reports by the affected AC is also expressly foreseen in the different Statutes of the
Autonomies.
III. THE CONCEPT OF RIVER BASIN AND ITS ROLE IN SPAIN
In view of the above and given the multiple references to the role of river basins in the
above discussion, it seems essential to reflect here on the regulative concept of river basin
to know more precisely what it aims at transmitting with all the above words. I reproduce
what the Spanish legislation states in this regard, in article 16 of the TRLA, approved by
Royal Legislative Decree 1/2001 (20 July 2001):
“For the purpose of this law, river basin is understood to be the surface of land
whose surface run-off flows in its entirety through a series of streams, rivers and
possibly lakes towards the sea by only one outlet, estuary or delta. The river basin, as
a management unit of the resource is considered indivisible.”40
This is not the only possible concept of a river basin although, in my opinion, it is the
one which best corresponds to the “natural” characteristics of hydrographical division to
which I refer and in which the outlet to the sea of the different water currents that form the
basin is highlighted. This definition of the basin as a unit of management is a rare thing,
when compared with other countries. On the contrary, it is possible to find the use of other
definitions – which for the aforementioned example would be simply sub-basins– that are
used, rather as a management reference in many countries. The specific characteristics of
each country determine the content of these definitions.41
On some occasions it is the very size of a basin (when this is enormous) that makes
unitary management very difficult when various or a large number of countries are
involved and it is difficult to coordinate organisations – necessarily international in
character – capable of carrying out the integrated management of the waters of the entire
basin, even though international rights over rivers are powerfully advancing in this
40 This definition comes from article 2 of the EC Water Framework Directive, of the European
Parliament and of the Council (23 October 2000), which establishes a community action framework in the
area of water policy. In section V, I make a brief comment on this Directive in questions related to river basin
management.
41 Imagine –not a very complicated exercise- countries with no outlet to the sea or which are cut off
by mountain chains where watercourses arise that are soon integrated into other countries. It is obvious that
in these cases, the Spanish (and European) definition is not of use to that specific country because the outlet to
the sea either does not exist or takes place beyond its frontiers, unless there are international treaties that
determine something in connection with the joint management with other countries for which, from the
internal law viewpoint, they would be sub-basins.
25
direction.42
In some federal countries, the powers of the constituent States (or of the autonomous
political units no matter what name they go by) over water are such that, when rivers or
basins exist that exceed the limits of the States only a pact between these political units will
permit a “distribution” of water and shared water management, which goes beyond the pure
local territorial interest. This is the case, for example, in the United States and the Republic
of Argentina whose States and Provinces, respectively, have been granted substantial
constitutional competence over water and which, therefore, have to resort to signing
agreements between States (in the USA, where such inter-State agreements are called
“compacts”) and Provinces (in Argentina) for the management of the supra-State or interjurisdictional
rivers. In the USA, the most well-known and also controversial pact is the
“compact” of the Colorado River of 1921 (revised by another of 2007) which is effectively
a mere distribution of water between seven States, which might have been acceptable in
1921 but nowadays the absence of references to quality or forms of management in it
causes multiple problems (GETCHES)43. In Argentina there are also several treaties of this
nature between Provinces.44 Over the last few years there has been an attempt by the
central government to re-establish its competence over waters by determining legislatively
(through so-called “minimum assumptions” that are similar to the Spanish basic legislation)
the competences of the Provinces. There is a relevant body of work critical of the
constitutionality of these measures (MATHUS), and the matter is awaiting the Supreme
Court to solve the problem.
Taking into account the aforementioned, we can reflect upon the role of the river
basin in Spain.
The first thing I must highlight, then, is the age of the concept and role of river basins
in Spain. This age is even more outstanding if we take into account its late arrival to the
majority of other countries, if it has arrived at all. The basin as a basis for the preparation
of a coordinated plan of hydraulic works appeared in Royal Decree-Law of 15 March 1926
with respect to the creation of River Basin Union Authorities (as they were known then).
These bodies, that initially only had competence over hydraulic works and which were
unique in that, apart from taking on the basin as an element for the planning and execution
42 Considering the integrated management of the Amazon river basin (with 6,144,727 km2) or of the
Congo river basin (3,730,474 km2) or the Nile river basin (3,254,555 km2) is nothing but a utopian approach
(now and also in a distant future) although, apart from the same internal management problems in each
member country of those basins, in all the cases indicated and depending on the potentiality that many
international declarations and conferences have given to the concept of river basin, there have been
considerable progresses over the last few years on the way to achieving coordination elements, at least.
43 On the other hand, the Federation may always influence the management over the waters of the
States, using standards based on environmental powers of the Federation. I recall, in this regard, the decisive
role of the federal Laws on clean water or on scenic rivers.
44 The last one I know about, between the provinces of Mendoza and La Pampa and also signed by the
State through two Ministries, is dated 7 August 2008, and deal with the Atuel River, thus happily solving a
long legal and political conflict between the two provinces.
26
of works, they included the users’ participation in these processes (that is, the agricultural
owners of the basin). These Authorities evolved to assume competence over water
management, an area where the participative element was very tenuous, and the
management corresponded exclusively to the purely “administrative” part of the
Authorities. (through the Commissariat and the President in the final instance).
Nowadays the basin, in Spanish law, is:
a) The basis of the State water administration: The TRLA thus regulates the existence
of basin organisations with the name of River Basin Authorities45 which those AC whose
territory lies within the basin managed by the State, can be incorporated into.46 Today and
by virtue of the new concept of River Basin District that originates from the EC Water
Framework Directive,47 the basin organisations extend their competence to the whole of the
River Basin District, having to coordinate their competences with those of other
Administrations in the so-called Committee of Competent Authorities (only with
coordination and consultative functions, not decision functions). Furthermore, the
Autonomous Communities with their own basins to manage, construct their water
administration based on the river basin unit, promoting the idea of “autonomy” for such
organisations.48
b) The territorial limit of hydrological planning (of basins): One of the most
important achievements of Water Law 29/1985 (2 August 1985) was legally structuring
hydrological planning and regulating it49. The hydrological plans of the State management
basins were passed in 1998 and autonomous management basin plans have also been
approved. Hydrological planning, with some different orientations, has also been set out by
the EC Water Framework Directive (2000) and now the hydrological plans of the basin as a
district are being prepared in Spain, which adapt to the prescriptions of this Directive and
which should be passed before 31 December 2009.
c) The decisive element regarding water management: If the hydrological planning is
of a basin (with the existence of a National Hydrological Plan that was passed by Law
45 They are legally Autonomous Organisations which make administrative decisions subject only to
contentious-administrative appeals. The willingness of the State to achieve the greatest administrative
autonomy possible for the basin organisation is thus clear.
46 All the Autonomous Communities are incorporated into the relative Basin Organisations.
47 The River Basin Districts add the transition waters and the coastal wasters to the traditional basin
territory with the definitions that article 17 of the TRLA offers for them.
48 The “Agencies” formula (for example, Catalana del Agua, Andaluza del Agua, Vasca del Agua) is
being generalised as an organisation peculiarity and name for these organisations of the AC. But their legal
nature is usually as entities of public law that function in agreement with private law. We thus find something
similar to the function of the State Agencies to improve the public services contained in Law 28/2006 (18 July
2006), and which are characterised by a great organic, contractual, budgetary, financial and personnel
management autonomy, etc.
49 EMBID IRUJO (1991) on this subject and unanimously the subsequent theory.
27
10/2001 (5 July 2001)) and the administrative organisation is also at this level, it can be
concluded that the “ordinary” water management is that which is carried out in the river
basin. “Going beyond” a single basin’s limits by regulating a water transfer from one basin
to other (better still, from one territorial limit of river basin planning to another), requires,
as a general rule, its insertion into the National Hydrological Plan. This is passed by Law
and is not a “free” regulation but one where the “conditions” of said transfer must appear
(cf. article 45.1.c TRLA).
The territorial limits of the basin organisations – and therefore of the river basins –
were established in 1987 and have remained practically untouched until now. Recently,
legislation creating a new State basin organisation – the Minho-Limia, which arises from
the segregation of a territory of the basin (incorrectly called so) of the North – has been
passed and the decision of the Supreme Court of 20 October awaits execution. This
decision annulled certain articles of the Jucar River Basin Plan because they extended their
validity to territories that were themselves river basins and were wholly within the
Autonomous Community of Valencia and consequently should be managed by the
Community, given the terms of its Statute of Autonomy.50
IV. THE PROBLEMS OF TRANSFERS OF WATER RESOURCES
BETWEEN DIFFERENT TERRITORIAL LIMITS OF RIVER BASIN PLANNING.
THEIR PRESENCE IN THE REFORMED STATUTES OF AUTONOMY
Water transfers are perhaps the area, at least in Spain, where tensions underlying the
water-territory relationship are shown most clearly51. The conflictive element that water
transfers between river basins has always represented in Spain (in both the political and
social environment) has already been mentioned. In the present section I am going to deal
with the transfers and their problems in general (1) and later their presence in the recently
reformed Statutes of Autonomy (2).
1) Transfers of water resources between the territorial limits of different River Basin
Plans
The phrase “water transfers between the territorial limits of different River Basin
Plans” corresponds to the terms of article 43.1.c of Water Law 29/1985 (2 August 1985),
which entrusted the regulation of transfers thus defined, including their “conditions”, to the
Law approving the National Hydrological Plan (note, today the text is article 45.1.c of the
50 On the important (and difficult) question of the way this decision was executed see the study in
EMBID IRUJO (2006 a). in the final bibliographic sources which include references to another theory that
need not be mentioned here.
51 On the last theory, see the excellent work by MENÉNDEZ REXACH (2007)
28
TRLA of 2001).52 But prior to this, specific regulations had already taken place53 and even
attempts to produce one big transfer based, simply, on the granting of an administrative
concession had occurred. These attempts had led, in many cases, to political and social
controversy.
We must then commence by mentioning the years 1973-1974, when a draft project
was formulated by the Administration for a diversion of a yearly volume of of 1,400 Hm3
from the Ebro Basin to that of the Eastern Pyrenees. The transfer was not carried out. It
was attempted to base the transfer on the granting of a mere concession, initiating the
procedures by publishing an Announcement-note in the official Bulletin of the Province of
Tarragona where the catchment would take place. Finally, faced with the political and
social resistance, the initiative was dropped54.
In 1981 a vulgarly called “mini-transfer” (due to its relatively small volume, 125 Hm3
yearly transfer, in relation to the aforementioned) was regulated by Law 18/1981 from the
Ebro Basin to the Province of Tarragona, which was carried out. It is interesting to observe
the limited territorial definition, as it was not just destined to another river basin, that of the
Eastern Pyrenees, as it was then called, but to an administrative division –a province- partly
located within another river basin, that of the Eastern Pyrenees..
The most important diversion is the one known as Tagus-Segura, regulated by Laws
of 1971 and 1980 that were not essentially polemical in their time, but which today raise
constant conflict when decisions need to be made on the volume of water that has to be
periodically diverted. The diversion was designed to move 1,000 Hm3 of water each year,
but it was immediately and legally limited to 600 Hm3 which has only rarely been able to
be diverted because of the lack of water in the head reservoirs. This leads to the
consideration that there as an obvious technical imperfection in its design, undoubtedly
constituting one of the causes of many of the criticisms it receives today. The Community
of Castile-La Mancha is seeking to declare the expiry of this diversion through a specific
provision to its Draft Statute of Autonomy (which I will examine further on).
The major controversies since the regulation of the National Hydrological Plan by
Law 10/2001 (5 July 2001), have been in relation to the transfer from the Ebro Basin to
those of the Mediterranean Arc (internal basins of Catalonia, Júcar, Segura and the
Province of Almeria). Apart from the social disruption (with several demonstrations in
different towns), the Aragon Autonomous Community formulated appeals of
unconstitutionality to the Constitutional Court, made reports before the European
Commission due to infringement of community directives, and has made multiple
contentious-administrative appeals against different administrative actions carried out to
52 On this question see EMBID IRUJO (1991) p. 211 and following.
53 I must warn that many of the existing transfers (some not at all relevant from the viewpoint of water
volumes entailed) do not have their own regulation as they started way back when giving an administrative
concession was the element that legitimised the action, but at times not even this exists.
54 On this issue, the book by S. MARTIN-RETORILLO BAQUER, L. MARTIN-RETORTILLO
BAQUER, J. BERMEJO VERA and L. MARTIN REBOLLO (1975) is essential.
29
execute the transfer, until such transfer was abolished by Royal Decree-Law 2/2004 (18
June 2004), converted to Law 11/2005, on 22 June 2005.55
Tensions have recently arisen again by virtue of the passing of the Royal Decree-Law
3/2008 (21 April 2008), on exceptional and urgent measures to guarantee the water supply
to towns affected by the drought in the province of Barcelona (BOE num. 97, 22 April
2008). The Law provides a temporary authorisation to transfer the unused water
originating from the water authorised to be transferred by Law 18/1981 (the law regulating
the mini-transfer to the province of Tarragona that foresaw a transfer volume of up to 4
m3/s, but which is not using more than 2.8m3/s at present in the Province of Tarragona ), to
the Province of Barcelona (that could, therefore, use up to 1.2m3/s, as Royal Decree-Law
3/2008 orders respect for the current limits on utilisations).56 This was a regulation based
on an extraordinary drought situation that, precisely, began to change with abundant rainfall
as soon as the Royal Decree-Law 3/2008 reached the BOE. The text had a curious final
provision three that ordered the cessation of the validity of the Royal Decree-Law when the
cause of the extraordinary situation ceased or, in any case, 30 days after the commissioning
of a desalination plant that is being constructed in Barcelona and which is foreseen to be
operative in June 2009. The Council of Ministers held on 6 June 2008 reached an
agreement to the extent that the extraordinary drought situation had ceased and, therefore,
the Decree-Law would no longer be in force.57
2. The transfers of water resources in the new Statutes of Autonomy
This part will discuss how the new Statutes of Autonomy deal with water resource
transfers, most especially the Statute of Aragon, which is the statute that has more
references in this regard.
55 The reasons for the opposition to this transfer appear in the book of the GOVERNMENT OF
ARAGON, Allegations (2001)
56 Article 3 of the Royal Decree-Law foresaw that the volumes to be transferred could be obtained
via the formulation of water use rights concession contracts with irrigators of the Ebro River, and therefore,
outside the system of Law 18/1981. On the meaning of this technique in connection with the forecasts of the
Statute of Aragon, on preliminary reports to be issued by this Community relating to water resources transfer
(cf. articles 19.3 and 72.3 of the Statute of Aragon.), see Judgement 81/2008 (12 May 2008) of the Legal
Advisory Commission of the Government of Aragon.
57 The question that could be posed at a speculative level is when the validity of Royal Decree-Law
has really ceased, as the final provision three does not require, at all, the agreement of the Council of
Ministers for the abolition to take place. Most probably, and definitely prior to 6 June 2008, the situation of
extraordinary and urgent need no longer exist and in the literal terms of the final provision three, the validity
of the Royal Decree-Law 3/2008 had already ceased. This is a peculiar way of terminating the validity,
which, in other circumstances, could have had certain legal consequences (consider the legal legitimisation or
not of contracts or expropriations in agreement with a regulatory text that had, necessarily, to be considered as
abolished in the terms of the Royal Decree-Law). On the general characteristics from the legal viewpoint of
this regulatory curiosity, I believe it is useful to refer to the judgment of the Legal Advisory Commission of
the Government of Aragon 81/2008, (12 May 2008), which foresaw the way of abolishing the text which
would take about one month to be officially confirmed.
30
a) Thus, this Autonomous Community must “watch” to avoid transfers, as
Article 19.3 of the Statute of Aragon provides:58
“It corresponds to the Aragonese public powers, in the terms established by this
Statute and according to the principle of basin unit, the Constitution, the State
legislation and the applicable community regulations, to especially watch to avoid
water transfers from the river basins that form part of the Autonomous Community,
which affect sustainability interests, in agreement with the rights of present and future
generations.”
This precept could be understood within what could be called “principles” of the
actions of public powers (the one that the Constitution regulates in Chapter III of Title I).
The reformed Statutes of Autonomy – those of the initial stage of reform too in some cases,
namely, the period immediately following the promulgation of the Constitution – have
chosen to configure principles of action of their public powers, regularly alongside the
establishment of citizens’ rights. It can be observed, in the case that concerns us and in
view of the final wording of the text, that the Aragonese public powers59 are not responsible
for watching over any type of water resource transfer, but only over those that affect
sustainability interests. However, in practical terms, it may seem that the public powers are
being entrusted to observe the legal system, as it would be difficult to consider a water
transfer that does not affect sustainability interests – at least not after article 45.2 of the
Constitution with its principle of “rational utilisation of natural resources” and, above all,
after the EC Water Framework Directive (2000) and its mandate to obtain a good
ecological status of the waters to be achieved by the year 2015 (cf article 4.1.a) with its
clear objective that the status of surface waters and groundwater must not worsen after the
entry into force of this text.60
b) Likewise, in some of the new Statutes of Autonomy the formulation of reports by
the AC is foreseen before the State approves water transfers. This is the case in the Statutes
of Catalonia and Aragon. Article 117.4 of the SC indicates that: “The Generalitat
(Government of Catalonia) must issue a mandatory report for any basin transfer proposal
that entails the modification of the water resources of its territorial area”. The SAr in its
article 72.4 associates the report with “the defence of the rights related to water
contemplated in article 19” and therefore “the Autonomous Community will issue a
mandatory report for any proposal of hydraulic works or water transfer that may affect its
territory” adding that “the Government of Spain should effectively foster the agreement
58 A legal interpretation of all the precepts of the SAr on transfers can be followed in the Judgment of
the Legal Advisory Commission of the Government of Aragon 81/2008 (1 May 2008), issued in response to
the consultation formulated by the Government of Aragon on Royal Decree-Law 3/2008.
59 The Statute of Aragon would operate here, from the viewpoint of its leader text nature of the
Aragonese legal system, with specific assignments aimed at the Aragonese public powers, such as DCC
247/2007 (12 December 2007), has categorically described to talk about the dual capacity of the Statutes of
Autonomy: as state regulations and leaders of community legal systems. Cf. legal basis 10-12.
60 And on what legally “watching over” can mean, I refer once again to the Judgment of the Legal
Advisory Commission 81/2008, which contains an ample explanation of the legal meaning of this word.
31
between all the Autonomous Communities that might be affected”.
Finally, article 75.5.2 of the SCL also regulates the report we are referring to and
which now appears linked to the governing principle of political action to guarantee a
quality water supply. It does so with the following words: “In application of this principle
and within the framework of the State legislation, the Junta of Castile-Leon will issue a
mandatory report on any State decision that may involve water transfer outside the territory
of the Community.”
Therefore, on the general trend indicated it can be said that the regulation of these
reports fully adapts to the Constitution, as I have referred to above (in section II of the
work) when I deal with these reports in a general manner, although this is being argued
before the CC. And I insist now, on my general starting point: it is not possible to conclude
that, in a State such as that of the Autonomies, with the characteristics with which the
Constitution regulates it, the existence of a non-binding report, which has the dual capacity
of enabling the Autonomous Communities to express their opinions on State projects with
an undeniable territorial incidence may be unconstitutional. And it may also be
unconstitutional for the State to be able to formally receive the opinion of the AC in order
to better orientate its final decision. It is obvious that if the constitutional system of a State
such as ours should lead to this, it should be changed immediately to formally foster the
existence of procedures via which a minimum principle of communication can be achieved
and not a radical confrontation, which is what the expulsion from the constitutional system
of such reasonable – and limited – procedures would inexorably lead to61.
c) On the other hand and although it does not deal directly with transfers, the
foresight of the SAr, in its additional provision number five should be seen as a regulation
related to these62, and according to which:
“The hydrological planning will specify the allocations, investments and
reserves for the compliance with the principle of priority in the exploitation of water
resources of the Ebro basin and of the rights set out in article 19 of the present Statute,
considering that the resolution of the Regional Assembly of Aragon of 30 June 1992
establishes a water reserve (6,550 Hm3) for exclusive use of the people of Aragon”.
Even when there have been discussions on this article given that the Ebro basin is
managed by the State (inter-community) and the La Rioja Autonomous Community has
included this in its unconstitutionality appeal against the SAr., the contents of the provision
appear to me to fully adapt to the Constitution, as the only thing it does is to entrust to the
state hydrological planning –responding to the same legal functionality of said planning
61 It is advisable to repeat, once again, that apart from everything that has already been said in the text,
with DCC 247/2007 (12 December 2007) and its paragraphs mentioned above, all the statutory articles that
have appeared on this type of reports are perfectly justified.
62 The parliamentary resolution that is read in the text mentioned originates from the organisation of a
line of defence by the Autonomous Community of Aragon against the undesirable consequences that might be
derived from the water transfers foreseen in the National Hydrological Plan prepared by the Administration
between the years 1992 and 1993 and which went no further than a Preliminary Draft Law as it was not even
passed by the Council of Ministers as a Draft Law.
32
according to TRLA, articles 38 and following- the specification of allocations, investments
and reserves63. The figure of 6,550 Hm3 in no way appears as binding, as it is simply a
reminder that it proceeds from a Resolution of a territorial Parliament and that it must be
taken into account or considered by the state hydrological planning.
d) I refer, finally, to the expiry order of the Tagus-Segura transfer which is found in
the Draft Statute of Autonomy of the Castile-La Mancha Autonomous Community and
which could not be passed in the past Legislature (2004-2008) and whose parliamentary
proceedings in the current legislation have begun. It is being taken into consideration by
the Congress of Deputies (14 October 2008). Without a doubt the text to which I refer (the
first transitory provision of this Draft Statute) is the most “radical” regulation, which,
regarding the transfers, are contained in the Statutes of Autonomy examined because it
simply provides for the extinguishment of this transfer in 2015. I believe that this is a sign
of clear unconstitutionality, as the regulation of the transfers between territorial limits of
different River Basin Plans belongs to the competence of the State ex article 149.1.22 of the
Constitution and must, therefore, be freely decided by its legislation and with the conditions
that the actual State establishes therein (cf. article 45.1.c TRLA). Indeed, a Statute of
Autonomy, I believe, cannot express itself in this unilateral way, in agreement, among other
arguments, with the loss of free availability over the content of the Statutes of Autonomy
that the State possesses, pursuant to the reform of the Statutes of Autonomy. Such a
statutory possibility is not included, either, in the broad area that DCC 247/2007 (12
December 2007) -in the text that I have reproduced in section II of this work- has granted to
the capacity of the Statutes of Autonomy. I believe that this is something that even the
regulatory initiative64 ignores as what it does is to simply offer an “alternative” political
philosophy to the realisation and execution of this transfer, which, I deduce, would include
the following outstanding elements:
-The binding nature of the extinguishment of the transfer to the basic time period
established by the Water framework directive of 2000 (and its transposition to Spanish
Law), 2015, namely, the moment when a good ecological status of the surface waters and
groundwater must be achieved –if not before- as we have already considered in this paper
(and with the possibility of extending the achievement of these environmental objectives to
2027, in extreme cases). What is transmitted with a draft regulation such as the first
transitory provision mentioned is that the existence of this transfer prevents obtaining this
63 And, in connection with the mention of the “rights” included in article 19 of the EAr, we know
since DCC 247/2007, (12 December 2007), that the Statutes of Autonomy cannot regulate rights of the
citizens related to Community competences, so in article 19 the only thing to be considered is a governing
principle that will be aimed at the public powers of Aragon insofar as these have competences over water
management, and, of course, it does not bind the public state powers at all.
64 It must not be forgotten that the additional provision number one of Law 11/2005 (22 June 2005),
amending Law 10/2001, (5 July 2001), of the National Hydrological Plan, already contained some precepts
devoted to the reduction of transferable flows in the context of other measures destined to the most important
use by the Castile-La Mancha Community of the waters of the Tagus river. In the theory, see DELGADO
PIQUERAS (2007) for an explanation of the reasons for foreseeing the expiry contained in the draft Statute
and FANLO LORAS (2008) for a heated defence of the regulation of the existing Tagus-Segura transfer.
33
good ecological status65 in the Tagus basin, where the extinguishment of the transfer would
be the expression of an essentially environmental measure and of compliance with the
community law, too.
-The environmental approach is reinforced, once the Statute enters into force, by
ordering the execution of “the management and re-organisation of the water uses,
especially irrigation, according to the available water supply in the Segura river basin”. The
same second transitory provision, in which this text in inverted commas can be found,
provides that any new water resource generated in the Segura river basin, should be
destined to replace the resources transferred through the infrastructure of the Tagus-Segura.
-The savings that this policy would offer for the Tagus basin require the new
Hydrological Plan of the Tagus basin to include the rate of the reduction of transferable
resources and, consistent with this, the utilisation of these resources within the Tagus basin
and to attend to “the needs of the river basin itself”. The broadness of this expression leads
to the clear deduction that it is not just considering environmental needs but also the
utilisation of non-transferred waters for multiple ends, including the possibility of
environmental purposes, of course.
In addition, the provision foresees the issue of a report on multiple actions regarding
water transfers between basins66, providing, too, for the presence of the representatives of
the Communities Board, who will be able to take part and vote, in the management bodies
of the transfer until this is extinguished.
V) THE WATER FRAMEWORK DIRECTIVE 2000 AND THE PRINCIPLES
DERIVED FROM IT OVER THE ADMINISTRATION OF RIVER BASINS
The fact that Spain is a European Union country leads us, finally, to make a brief
foray into the contents of the 2000 Water Framework Directive from the perspective of the
questions analysed in this paper. This is necessary in order to observe if its decisions agree
or not with the content of the different Statutes of Autonomy examined in this paper,
especially in connection with the relationship between the Guadalquivir basin and
Andalusia and the Duero basin and Castile and Leon in their respective Statutes of
Autonomy.
65 So, the last sub-section of section one of the first transitory provision indicates that: « It must be
guaranteed that the Tagus river and the environmental spaces associated with its exploitation have sufficient
quality and quantity of water to reach the objectives referred to”.
66 This is the text: “The Board of Communities will use a mandatory and decisive report on any
proposal of transfer, cession, transaction or exchange of water within one same river basin or between river
basins that use infrastructures or that affect courses that flow totally or partially within the territory of Castile
La Mancha, reserving the right to exercise the allocation and preferential use of these resources to attend to
the needs of the actual region”.
34
A few prior comments must be made: the first is obvious and it is that the community
regulations do not take the internal constitutional structure of a country into account and, in
agreement with now quite old principles that interpret the community law, there is a certain
internal organic indifference in the community regulations on the internal organic structure
of the States. What matters for community law is that its mandates be complied with by
each State, regardless of the state organisation that satisfies it. This question will be
determined by the respective constitutional structure.
In second place, it is obvious that whatever results are reached in the analysis now
started, none of what has been mentioned here is applicable to the constitutionality lawsuit
pending upon different Statutes of Autonomy before the CC. Community law may be (is) a
parameter of the legality of Spanish regulations, but its articles (including those of the
original law) do not, in any way, operate, with respect to the Spanish regulations, in the
constitutionality plane, not even as an auxiliary element to interpretatively support certain
lawsuits that they wish to establish in connection with different questions pending before
the Constitutional Court and which have been mentioned throughout the study.
And finally, we can say that community law is not, precisely, a prodigy of technical
regulations and clarity of which, of course, the actual community organisations are very
aware, continuously expressing the idea that it is advisable to make community law simple
and clear67. This is more than noticeable in the very deficient, speaking solely from the
technical viewpoint, Water framework directive of 2000. This deficiency will surely be the
cause (it is already) of different interpretation problems in the future in connection with not
too trivial questions. In this case we will have opportunity to notice one of them, as it is
impossible to safely deduce from the text of the Directive such a simple question as
whether there is one single competent authority in each river basin district or whether there
can be more than one; although, in my opinion and weighing up the different possible
arguments, all of which are based on what is expressly said in the Directive, the legal
interpretation of the different texts to be considered would tend more towards this last
option. Let us look at it more slowly68.
We must begin by pointing out that for the Water framework directive there are two
basic concepts from the perspective that interests us now: basin and river basin district,
which are defined in article 269. These concepts are essential to regulate the environmental
67 The quotes in this place could be very varied, but due to their importance I recall the “interinstitutional
agreement related to the common guidelines on the quality of the drafting of the community
legislation of 22 December 1998” (DOCE no.C 73, 17 March 1999).
68 Cf. a general vision of this Directive in the monograph of C. TIRADO ROBLES (2004), page 57 and
following especially. Likewise, see CARO-PATON (2006) and DELGADO PIQUERAS (2001).
69 Thus, river basin is the land surface whose surface run-off flows entirely through a series of streams,
rivers and possibly, lakes, towards the sea through one single mouth, estuary or delta; and river basin district
is the marine and land area comprised of one or several neighbouring river basins and the associated
groundwater and coastal waters, named in agreement with section 1 of article 3 as the main unit for the
management of the river basins.
35
objectives to be satisfied, the legal framework of the hydrological planning of a basin with
a district scenario and the form of management of the basins in the same Directive. And in
this context it is important to highlight that the Directive wants the water management to be
based on river basins and on its grouping into districts as foreseen in article 3; but it is
doubtful that it will require one single “competent authority” (in the terms of this Directive)
for each one of them. Thus, there is a precept from which this principle of single authority
could be derived (article 3.2)70, but it is refuted in another set of precepts constructed under
the principle that the community authorities must be informed of “the” competent
authorities in each national river basin district. This is the aim of article 3.8, with Appendix
I specifying something more in this regard, from which it can be deduced that there can be
more than one competent authority in each river basin district71, which, based on the
broadness with which the river basin district is defined in the Directive, is more than
cautious and not only from the specific perspective of such as complex territorial
government situation as the Spanish one. Anyway, combining all the previous precepts may
be decisive in the interpretation that is followed, the definition of competent authority
contained in article 2.16 according to which one must understand “the authority or
authorities named in agreement with sections 2 and 3 of article 3”.
These statements of the Water framework directive of 2000 must be taken into
account in connection with the competences of Andalusia and Castile-León over the
“Andalusia” and “Castile León” parts of the Guadalquivir and Duero rivers, already
examined. More specifically, different kinds of reproaches can be made of these legal
texts–like those contained in this paper- but not from the perspective of failure to comply
with that foreseen in the Water framework directive of 2000, even with the interpretative
doubts that have been formulated. This occurs because the Water framework directive is
not very clear in this question72 –as in others- and the possibility of there being different
70 The article indicates that “The member states will adopt the appropriate administrative provisions,
including the appointment of the adequate competence authority, for the application of the standards of this
Directive in each river basin district situated in their territory”. Section 7 of the same article indicates that
“Member states will appoint the competent authority at the latest on the date mentioned in article 24”. Art. 24
refers to 22 December 2003.
71 Thus, in this Appendix I, the plural is used to refer to the list of competent authorities that must be
sent: “In application of section 8 of article 3, the Member states will provide the following information on all
the competent authorities in each national river basin district…. And the plural continues when they are also
asked to send “a description of the legal and administrative responsibilities of each competent authority and
their function within the river basin district”; and related to the composition it is said that “when the
competent authority assumes responsibility for the coordination of other competent authorities, a list of these
authorities must be provided together with a summary of the institutional relations established to guarantee
the coordination”.
72 That may be the cause of the Decision of the Court of Justice of the European Communities of 30
November 2006, passed on subject C-32/05, Commission vs. Luxemburg. The Decision is compulsory
reading, above all with respect to the general principles on the application of community law and on the
consideration of the Water Framework Directive which “does not seek total harmonisation of the regulation of
the Member States on water issues” (section 42 of the Decision). In the questions that concern us now, the
Decision deduces the obligation of Luxemburg to include the definition of the concept of basin and river basin
district in its internal legislation, although not too many consequences must be drawn from this since, as
36
competent authorities in each river basin district73 can perfectly be deduced, which is what
I have done, so the situation that reflects that the Statutes of Autonomy of Andalusia and
Castile-León fully adapts to the community text. Naturally what the Framework Directive
would demand, assuming the perfect possibility of different competent authorities, is an
effective coordination in the action between all of them, a coordination whose first
assumption would be the hydrological planning of a basin with a district scenario, as here
there is not the slightest doubt about the existence of a single plan demanded by this
Framework Directive. This question is not discussed, in any way, in the two statutory texts
examined.
VI. CONCLUSIONS
The moment has finally arrived to formulate some specific conclusions drawn from
all that examined above. And the first thing that has to be done in this regard is to highlight
the apparent paradox that the advance in the political decentralisation in Spain (advance
constituted by the latest reforms of the Statutes of Autonomy) creates some problems in
connection with water government. From my point of view, however, that paradox is only
“apparent”, as I have already said, as what any observation of compared law in federal
States or federal-types States (politically decentralised States, in any case) shows, is the
tension that is established between the government policy of the territory and the “natural”
water management principles by basins, always so difficult to carry out.
These problems, which I notice in the Spanish statutory situation, have a singular
rooting in the questioning of the role of the river basin as an indivisible management unit
carried out by the Statutes of Andalusia and Castile-León. There is no doubt that the
possibility of “fractioning” river basins and the cession of part of them to these AC (the part
that does not affect other AC) is a different management mechanism to that put forward by
Water Law 29/1985, (2 August 1985) -and prolonged in TRLA of 2001-. Beyond the
question of its constitutionality and even the same compatibility with that established in the
Water framework directive of 2000, as fully examined on previous pages, there should also
be a “functionality”, “efficiency” approach over the good water management, which does
not seem to have been carried out at all in these regulation processes. But, it is hoped that
this will take place in the new regulatory documents that appear74 In any case, our attention
Luxemburg adduces, there are no national river basin districts in its territory, but instead national parts of
international river basin districts regulated by international agreements. Thus, it is within the framework of
these agreements and of the bodies regulated by them where the environmental objectives established by the
Directive for river basin districts must be enforced, as specifically established by the Decision.
73 Introducing evaluations here with respect to the “efficiency” of the precepts mentioned or to the
genuine “spirit” of the Water framework directive would be a different question. It is perfectly possible to do
this and in a study with a different objective and methodology to this, it would even be advisable to do so.
But here I must exclusively adhere to what the community legislator has written textually on this matter.
74 In this regard, the publication of the RD on transfer of functions and services to Andalusia, passed by
the Council of Ministers at its meeting of 17 October (still not published on the date when this paper is
written) must be awaited. Above all, it is necessary to refer to the future Hydrological Plan of the
37
is drawn to how the pioneer country in constructing a water administration based on the
criteria of the river basin as an indivisible management unit, can be orientated to
dismantling –not even partially75- this form of administration if and in the last instance,
only one hydrological planning per basin and in the hands of the State would serve to
coordinate the actions of the different existing management bodies if, obviously, the CC
were to approve the formula of the Statutes of Autonomy examined. This would
considerably enhance the role of hydrological planning, a field where Spain, too, is a
pioneer in that it considered it as a regulation76 and in the discovery of its multiple
capacities. A new one appears now derived from the fractioning of the river basins and of
the role of this planning in the coordination of their management.
On the other hand and although I have only made very limited reference to the
question that follows, the presence in the reformed Statutes of Autonomy of a “right to
water” must also be highlighted, which is translated into the affirmation of specific
positions of citizens of the AC in connection with the supply and sanitation even to carry
out “economical activities”. There is no doubt of the attractiveness of the expression “right
to water”77, but this, in normal international approaches, only refers to the supply for
drinking water and to sanitation. Nothing to do with a supposed “right” to carry out
economic activities, which, furthermore, would be contradictory to the constitutional bases
of public domain in our country78. However, the DCC 247/2007 (12 December 2007),
affirming the impossibility of the Statutes of Autonomy regulating subjective rights related
to the competences of the Autonomous Communities, has depreciated any possibility of
deducing consequences from this supposed right to water.
Finally, I indicate my trust that these political and legal controversies will finally
achieve a constitutionally correct and technically appropriate chicanery, which will permit a
continuation of the essential parts of the management formulas that have a certain age and
obvious prestige among us. But this must be done without having to carry out a servile
adoration towards a past, which must be examined closely and never with an acrytical and
Utopian vision. Each generation must search, without too many prior conditions and not
only in the field of the water, for the legal-organisational formulas that it believes most
appropriate to solve the problems that each generation also faces in a singular way. In this
Guadalquivir River Basin District, a unique plan, obviously, in connection with any administrative
management area that exist in this basin.
75 Even when it pronounced the “partial” reference with precaution, as when a first exception is
accepted to a principle, it can never be suspected how many will appear later, based on the same reasonings
that gave rise to the original exception. I believe that one must be clear here, easily predicting a future
depending on everything that has been occurring in the past.
76 Cf. EMBID IRUGO (1991) in totum.
77 Cf. EMBID IRUJO (2006, b) page 15 and following
78 Cf. article 132 CE and DCC 227/1988. Nobody has a “right” to be granted a use of waters. This
would be contradictory with the constitutionally guaranteed position of the owner of the public hydraulic
domain, the State.
38
regard, the recent calls to realism of LÓPEZ MENUDO79 are very adequate and are clearly
situated in this line, connecting perfectly with what I have defended herein and in different
previous papers about the need to adapt organisational formulas founded under very
different circumstances, both regarding the territorial configuration of the State and its very
same liberal-democratic substance, to the very demands of a State of Autonomies. But this,
obviously, does not mean rejecting or leaving behind the most notable and useful aspects of
what our ancestors have handed down to us. The 1978 Constitution undoubtedly permits
and encourages the consecution of appropriate organisational formulas for water
management based on the best of our traditions that are backed up by a spirit of
collaboration and territorial cooperation that in no way must be rejected.
79 I copy textually: “The third starting point consists in admitting in the most realistic way that the
important factor to be retained by the State are the great decisions, understanding as such the legislation, the
hydrological planning with its series of measures required to make the inter-territorial solidarity principle
established in article 2 of the Constitution effective, complemented by the set of compensatory measures for
the fair distribution of wealth. Although probably the loss of the state monopoly in the management of
administrative “current subjects” can be considered as the loss of an estimable value, this should not be
lamented in excess if the essential pillars of the system are properly controlled. It does not seem that the
system must be closed to the de-concentration of executive competences, to the intercommunity collaboration
formulas, to state coordination, leaving the State, in any case, in a subsidiary role for when those management
formulas are shown as being insufficient” (LOPEZ MENUDO, 2008, p. 82).
39
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