Mötet mellan äldre vattenrätt och rådande miljölagstiftning för vattenkraft

Sammanfattning: The legislation of hydropower emerged in the early 1900s to handle the large expansion of hydropower that followed industrialization. Actual environ¬mental demands were first placed on operators of hydropower after the introduction of the Environmental Code in 1998. The aquatic environ-ment is today one of Europe's most regulated areas and the EU Water Framework Directive set out concrete and time-bound requirements on water quality. EU law is also significant in terms of demands on renewable energy and the renewable directive sets out ambitious climate goals. While Sweden is close to reaching the climate goals, the situation is the opposite relating to the environment. Most of the existing hydropower, 92%, is still run by permissions granted under the 1918 Water Act, a law that is highly undeveloped concerning the environmental protection. Therefore the current permissions do neither correspond to the high level of environ¬mental concern in the modern Swedish legislation and EU- legislation nor will they achieve national and EU legal goals. The Swedish Environ¬mental Code is presently unable to enforce the modern demands on environ¬mental protection. In order to ensure that hydropower stations are designed and operated in accordance with the Environmental Code and the requirements of EU law a Committee was set up in 2012 with mandate to review the Environmental Code relating to the legislation of water activity. The Committees presented a legislative proposal that all permits issued under ancient law was to undergo a new trial. Through a new authorization trial the ancient permit, that otherwise would be protected by res judicata, was to expire. The outcome of the new authorization procedure will most likely be a new permit but it is also possible that hydropower stations that do not meet the modern demands, or that can’t afford the required environmental improvement measures, will lose their license. What will follow of the Committees proposal is not entirely established or clear. Nevertheless, some conclusions can be deducted in view of modern environ¬mental legislation. By new authorization trials an ecological and climate-related holistic perspective can be applied to the hydropower operations that also would be better integrated in the overall water quality management and environmental improvement measures. Practitioners of hydro¬power would need to implement and finance extensive environmental improvement measures and the water quality and ecology would most probably improve significantly. The interest in water quality and ecology must be balanced against the interest of climate-friendly electricity which also should to be considered regarding the choice of legal action. It is also necessary to consider and ensure the continuity of future requirements. For an effective legislation the new authorization trials must be combined with effective supervision and reconsideration rules, possible use of general rules and, as a suggestion, a legislation that promote the operator's incentive to actively implement environmental improvement measures.