The Supreme Administrative Court (SAC) annulled texts from the Ordinance on the use of surface water, adopted by the Council of Ministers on March 23 last year, which oblige the owners of hydropower plants to present a document for an established right of construction when issuing a permit for water abstraction. The lawsuit was initiated by the Association Hydroenergy – an association of strategic investors in the production of energy from hydroelectric plants in Bulgaria.
The supreme magistrates accept that there is a contradiction with a normative act of a higher level – the Water Act. The challenged provisions of the Ordinance require the submission of a document for an established right of construction for the issuance of a permit for water abstraction and for the amendment and/or extension of the HPP permit. However, the Water Act does not contain such a requirement either in the hypothesis of issuing a permit, or in the hypotheses of amendment and extension of the permit. The hypotheses of issuing, amending and extending the permit are regulated in the Water Act and does not require provision of a document for an established right of construction.
The requirement introduced by the ordinance to present a document certifying an established construction right at the time of submitting the application for the issuance of the permit not only contradicts the Water Act, but it is also administrative and financial burden for the applicant, since its implementation may lead to a scenario where the applicant acquired the right to build, but was subsequently denied a permit under the Water Act.
Another contested provision of the ordinance requires a certificate of commissioning when the application is for the extension of a permit. The regulation of the extension of the permit is regulated again in the Water Act and does not contain such a requirement. The set requirement not only contradicts the Water Act, but in certain cases is objectively impossible.
Source: Hydropower Association
