Hydropower and policy

EU policies

The key EU policies which are relevant to the planning and operation of hydropower in the European Union include the following: · Renewable Energy Directive The original renewable energy directive (2009/28/EC) established an overall policy for the production and promotion of energy from renewable sources in the EU. It required the EU to fulfil at least 20% of its total energy needs with renewables by 2020 – to be achieved through the attainment of individual national targets. All EU countries must also ensure that at least 10% of their transport fuels come from renewable sources by 2020. In December 2018, the revised renewable energy directive 2018/2001/EU entered into force, establishing a new binding renewable energy target for the EU for 2030 of at least 32%, with a clause for a possible upwards revision by 2023. EU countries are required to draft 10-year National Energy & Climate Plans (NECPs) for 2021-2030, outlining how they will meet the new 2030 targets for renewable energy and for energy efficiency.

There are significant differences between EU countries in terms of the extent to which hydropower is used in their renewable energy mix. This is highly influenced by geographic conditions, climate, precipitation patterns, the availability of affordable energy supply alternatives, as well as institutional capacities and technical competences.

Water Framework Directive (WFD)

The legal requirements of the WFD concerning hydropower are mostly contained in Article 4 on the environmental objectives of the Directive. The Directive’s main aim is to achieve ‘good status’ of all EU waters, including surface and groundwater, by 2015 through coordinated action (Article 4(1)). For surface water bodies, the Directive distinguishes between good ecological and good chemical status. Ecological status is "good" when the values for biological quality components of surface waters indicate anthropogenic influences, but deviate to only a negligible extent from values normally recorded in the absence of disturbing influences. Hydromorphological and physico-chemical parameters are supporting elements to the biological quality elements for classifying the status of water bodies.

Although the targets of the WFD should have been met by 2015, the Directive permits time delays in achieving "good status" (Article 4(4)) as well as, in exceptional cases, the setting of less stringent objectives (Article 4(5)). There are the so-called possible exemptions from the objectives of the WFD.

Furthermore, Article 4(3) of the WFD has specific relevance to hydropower affected stretches because it allows the designation of surface waters as heavily modified (HMWB), when particular water uses and public interests stand in the way of extensive restoration of the water body in question. The environmental objective of HMWB is good ecological potential instead of good ecological status.

Additional exemptions for building new infrastructure projects are possible under Article 4(7), if certain strict conditions are met and an assessment is done according to these conditions. This can relate to new projects (e.g. new specific hydropower dams) or to modifications to existing projects. The conditions for exemptions under Article 4(7) include amongst others that there are no significantly better environmental options, the benefits of the new infrastructure outweigh the benefits of achieving the WFD environmental objectives and all practicable mitigation measures are taken to address the adverse impact of the status of the water body. In general, for new developments, there is a need firstly to prevent deterioration of 'status' in a water body. Where this is not possible, mitigation measures should be applied.

A river basin management plan (RBMP) has to be established for each river basin district (Article 13) in a cyclical process whereby RBMPs are prepared, implemented and reviewed every six years. According to Article 11, Member States are further obliged to establish a

programme of measures to tackle significant pressures on water bodies, including among others those from hydropower activities.

Birds Directive, Habitats Directive, EU Biodiversity Strategy for 2030

The overall objective of the Birds/Habitats Directives is to ensure that the species and habitat types they protect are maintained and restored to a favourable conservation status throughout their natural range within the EU. In addition, according to Article 3(1) of the Habitats Directive, a coherent European ecological network of special areas of conservation has been set up under the title "Natura 2000", which comprises sites hosting the natural habitat types listed in Annex I and habitats of the species listed in Annex II of the Directive.

Article 6(3) of the Habitats Directive concerns the assessment procedure for any plan or project that could affect one or more Natura 2000 site. This is relevant for new hydropower projects as well as for plants to upgrade or modernize existing hydropower plants. In essence, the assessment procedure requires that any plan or project that is likely to have a significant effect on a Natura 2000 site undergoes an appropriate assessment to study these effects in detail.

The second set of provisions of the nature Directives concerns the protection of certain species across their entire natural range within the EU, i.e. also outside Natura 2000 sites. These provisions also need to be taken into account for hydropower plants, especially on rivers harbouring migratory species, such as the European sea sturgeon Acipenser sturio or the apron Zingel asper both of which are listed in Annex IV of the Habitats Directive (EC, 2016).

Finally, the new EU Biodiversity Strategy for 2030 includes targets for restoring freshwater ecosystems which are also relevant to activities related to hydropower production. The Strategy targets include the restoration of at least 25,000 km of rivers into free-flowing rivers by 2030 and the restoration of degraded ecosystems, like floodplains and wetlands. Also water abstraction and impoundment permits should be reviewed to implement ecological flows in order to achieve good status or potential of all surface waters and good status of all groundwater by 2027 in line with the WFD.

Eel Regulation

The EU Eel regulation (aims to establish measures for the recovery of the stock of the European eel. The Eel Regulation is a legally binding regulation to protect this species within and beyond the Natura 2000 network. Member States are obliged to identify and define eel river basins and to set up Eel Management Plans aiming to reduce anthropogenic mortalities so as to permit with high probability the escapement to the sea of at least 40 % of the silver eel biomass relative to the best estimate of escapement that would have existed if no anthropogenic influences had impacted the stock. Article 2 of the regulation explicitly requests that “in the Eel Management Plan, each Member State shall implement appropriate measures as soon as possible to reduce the eel mortality caused by factors outside the fishery, including hydroelectric turbines, pumps or predators, unless this is not necessary to attain the objective of the plan.”

Environmental Impact Assessment Directive

According to the Environmental Impact Assessment (EIA) Directive, the development consent for projects which are likely to have significant effects on the environment should be granted, only after an assessment of its likely environmental effects has been carried out.

The EIA Directive distinguishes between projects requiring a mandatory EIA ("Annex I projects") and those where Member State authorities must determine, in a procedure called “screening”, if projects are likely to have significant effects, taking into account certain criteria ("Annex II projects"). With regard to hydropower, Annex I projects include those for “dams and other installations designed for the holding back or permanent storage of water, where a new or additional amount of water held back or stored exceeds 10 million cubic meters’. Most installations for hydropower production are Annex II projects.

Invasive Alien Species regulation

The EU regulation on Invasive Alien Species addresses plants and animals that can have negative consequences when introduced (intentionally or accidentally) to new, non-native environments. The regulation outlines a set of measures to be taken with regards to alien species on a list of “Invasive Alien Species of Union concern”, which are grouped into: prevention, early detection and rapid eradication, and management. The development of hydropower installations can create new connections between river systems, leading to the spread and dispersal of various aquatic organisms. These can be difficult to identify and prevent, as they often involve the movement of small organisms through flowing water.

National legislation

In addition to EU policies, national regulations play a key role in defining the regulatory setting for planning and operating hydropower plants as well as for planning relevant mitigation measures. In particular, the following types of national regulations should be taken into account:

• Water Acts / Water Protection Acts
• Water Infrastructure Acts
• Energy Acts
• Nature Protection Acts
• Fishing / Fisheries Acts
• Environmental Impact Assessment Acts

National regulatory settings are very diverse and differ from country to country. Therefore, this page cannot give a comprehensive picture of national regulations in the EU. You may refer to the FIThydro report “Deliverable 5.1. Review of policy requirements and financing instruments” for a review of national legislation in eight European countries (Spain, Portugal, France, Austria, Germany, Switzerland, Sweden, Norway). This review focused on legislation relevant to ecological improvements in water ecosystems, environmental conditions related to hydropower schemes as well as legislation on renewable energy production. An overview of the reviewed legislation is given in the table below.

Table - Summary of national legislation reviewed in eight European countries

Country	Water protection	Nature protection	Fisheries	Environmental impact assessment	Energy/ renewable energy	Water infrastructure	Name of laws and dates
NO	X	X	X	X	X	X	The Watercourse Regulation Act (1917)
							The Water Resources Act (2001)
							The Plan and Building Act (2010)
							The Biodiversity Act (2016)
							The Salmon and inland fisheries Act (2016)
							The Energy Act (1991)
SE	X		X		X		Ordinance on Water Quality Management (2004)
							Environmental Code (1999)
							Water Law (1918)
							Ordinance concerning EQS for fish and mussels (2001)
							Electricity Preparedness Act (1997)
DE	X	X		X	X	X	Federal Water Act (2009)
							Federal Nature Conservation Act (2010),
							Federal Emission Control Act (2013),
							Law on Environmental Impact Assessment Act (2010)
							Renewable Energy Sources Act (2012),
							Environmental Damage Act (2007)
AT	X			X	X		National Water Act (1959)
							EIA Act (2000)
							Green Electricity Act (2012)
CH	X		X	X	X	X	Federal Act on the Protection of Waters (1991)
							Federal Act on Fisheries (1991)
							Environmental Protection Act (1983)
							Energy Act (1998)
							Federal Hydropower Act (1918)
							Federal Act on Hydraulic Engineering (1991)
FR	X	X	X	X	X	X	Law on fish and fisheries (1865)
							Law n°64-1245 on water regime and distribution and pollution control (1964)
							Law n°76-629 on nature protection (1976)
							Law n°84-512 on freshwater fishing and the management of fish resources (1984)
							Law n°92-3 on water (1992)
							Law n°2006-1772 on water and aquatic environments
							Law n° 2009-967 for the implementation of the "Grenelle de l'environnement"
							Ministerial circular on waterworks
							Law on the use of hydraulic energy (1919)
							Law n°80-531 on economies of energy and heat utilisation
							Law n°2000-108 on the modernization and development of the public electricity service
							Law n°2005-781 setting the energy policy guidelines (POPE)
							Law n°2015-992 on the energy transition for green growth
ES	X	X	X	X	X	X	Water Act (2001) Natural Heritage and Biodiversity Act (2007)
							Rivers Fishing Act (1942)
							Environmental Impact Assessment Act (2013)
							Electric Sector Act (2013)
PT	X	X	X	X	X	X	Water Law (2005)
							National network of nature protected areas (2008)
							Freshwater Fisheries Law (2015)
							Legislation on environmental impact assessment (2013)
							Water Resources Utilization Regime (2007)
							Legal Framework of Activities Developed under the National Electric System (2012)

Source: Kampa et al. (2017).

Mitigation requirements for hydropower plants

When planning mitigation measures for new or existing hydropower plants, the mitigation requirements based on legislation, other types of recommendations (e.g. guidelines or technical standards) or decisions by permitting authorities need to be reviewed and taken into account.

Mitigation requirements for hydropower plants can be distinguished for the following key domains of environmental improvements at hydropower plants:

• upstream fish migration,
• downstream fish migration,
• flow conditions,
• hydropeaking,
• gravel transport (sediment), and
• habitat enhancement.

This page cannot give a comprehensive picture of mitigation requirements for hydropower plants in the EU. You may refer to the FIThydro report “Deliverable 5.1. Review of policy requirements and financing instruments” for a review of mitigation requirements in eight European countries (Spain, Portugal, France, Austria, Germany, Switzerland, Sweden, Norway) with some examples provided below.

The impacts from disrupted upstream fish migration and modified flow conditions are the ones most commonly required by legislation to be mitigated. Requirements to mitigate modified flow conditions usually refer to minimum flow requirements and, in different countries, different methods are used for determining minimum flow (Kampa et al., 2017).

In some countries, there are no mitigation requirements related to gravel transport (sediment), hydropeaking impacts and downstream fish migration, mainly due to still open questions which need clarification through further research or pilot studies. For these types of impacts, several countries follow a case-by-case approach when defining mitigation requirements (Kampa et al., 2017).

Requirements for mitigation Selected examples from European countries

Upstream fish migration Germany: the federal States have specific technical and hydraulic requirements for upstream fish migration measures. Austria; ensuring ecological continuity is compulsory except outside of the natural fish zone and very near to natural existing barriers. Switzerland: HPP (new and existing ones) are required to mitigate interrupted fish migration by 2030

Downstream fish migration Germany: some federal states indicate in specifications on fish protection (e.g. protection screens) in their federal laws. Austria: as there as is no proven state-of-art-technology to ensure downstream migration, there is no general requirement (only some pilot facilities). Norway: requirements related to downstream migration have historically been an issue only to a limited extent, and have received less attention than upstream migration. However, there is growing concern that this is a key issue which also requires mitigation.

Flow conditions Germany: the amount of minimum flow is aligned with management objectives according to the WFD (according to law WHG §§ 27-31).

France: maintenance of minimum flow is an obligation since 2006 with the requirement to implement minimum flow values by 2014. Spain: minimum flows were to be implemented in the river basin management plans, generally before 2015, on a case by case basis. A basic legal framework for ecological flows exists and many licenses include requirements concerning minimum flows. Depending on specific conditions, new minimum flow requirements for existing plants may be determined on case by case.

Hydro-peaking Switzerland: hydropeaking needs to be mitigated by 2030. Structural or operational measures can be applied. Austria: Due to still open questions, implementation of mitigation measures was postponed to WFD cycle after 2021. Hydropower companies have to provide feasibility studies for their hydropeaking plants until 2021 on how hydropeaking can be mitigated effectively. Norway: requirements on hydropeaking operations have been defined in only very few cases so far (some producers introduced voluntary restriction on such operations in some cases).

Gravel transport (sediment) Austria: a national ordinance (mainly applicable to new HPP) states that good ecological status can be achieved with high confidence if sediment dynamics is only modified within short river stretches. Switzerland: mitigation of gravel transport is required by 2030. Germany, Portugal, France: requirements for mitigating gravel transport are assessed on a case-by-case basis.

Habitat enhancement Switzerland: revitalization and improvement of morphology is required by 2090. Germany: habitat improvements are indirectly required via the provisions of the WFD. Austria: there is a requirement to minimise impacts as far as possible for new plants and to achieve good status/potential, which means that morphological mitigation measures have to be implemented. Existing HPP with an impoundment are usually designated as heavily modified and the definition of GEP includes morphological improvements.

Requirements for mitigation	Selected examples from European countries
Upstream fish migration	Germany: the federal States have specific technical and hydraulic requirements for upstream fish migration measures.
	Austria; ensuring ecological continuity is compulsory except outside of the natural fish zone and very near to natural existing barriers.
	Switzerland: HPP (new and existing ones) are required to mitigate interrupted fish migration by 2030
Downstream fish migration	Germany: some federal states indicate in specifications on fish protection (e.g. protection screens) in their federal laws.
	Austria: as there as is no proven state-of-art-technology to ensure downstream migration, there is no general requirement (only some pilot facilities).
	Norway: requirements related to downstream migration have historically been an issue only to a limited extent, and have received less attention than upstream migration. However, there is growing concern that this is a key issue which also requires mitigation.
Flow conditions	Germany: the amount of minimum flow is aligned with management objectives according to the WFD (according to law WHG §§ 27-31).
	France: maintenance of minimum flow is an obligation since 2006 with the requirement to implement minimum flow values by 2014.
	Spain: minimum flows were to be implemented in the river basin management plans, generally before 2015, on a case by case basis. A basic legal framework for ecological flows exists and many licenses include requirements concerning minimum flows. Depending on specific conditions, new minimum flow requirements for existing plants may be determined on case by case.
Hydro-peaking	Switzerland: hydropeaking needs to be mitigated by 2030. Structural or operational measures can be applied.
	Austria: Due to still open questions, implementation of mitigation measures was postponed to WFD cycle after 2021. Hydropower companies have to provide feasibility studies for their hydropeaking plants until 2021 on how hydropeaking can be mitigated effectively.
	Norway: requirements on hydropeaking operations have been defined in only very few cases so far (some producers introduced voluntary restriction on such operations in some cases).
Gravel transport (sediment)	Austria: a national ordinance (mainly applicable to new HPP) states that good ecological status can be achieved with high confidence if sediment dynamics is only modified within short river stretches.
	Switzerland: mitigation of gravel transport is required by 2030.
	Germany, Portugal, France: requirements for mitigating gravel transport are assessed on a case-by-case basis.
Habitat enhancement	Switzerland: revitalization and improvement of morphology is required by 2090.
	Germany: habitat improvements are indirectly required via the provisions of the WFD.
	Austria: there is a requirement to minimise impacts as far as possible for new plants and to achieve good status/potential, which means that morphological mitigation measures have to be implemented. Existing HPP with an impoundment are usually designated as heavily modified and the definition of GEP includes morphological improvements.

Source: Kampa et al. (2017).

Literature cited

• European Commission, 2016, Hydropower and Natura 2000: good practice guide, Revised Draft for the European Commission, September 2016
• Kampa et al. (2017), FIThydro Deliverable 5.1. Review of policy requirements and financing instruments.