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27 April 202217 minute read

Law of converting of Decree Law no. 17/2022

Simplification measures for authorizations of renewable energy plants
Introduction

This alert sets out the main regulatory provisions as approved by the legislator and contained in the Draft Law converting Decree-Law no. 17 of March 1, 2022, entitled "Urgent measures for the containment of electricity and natural gas costs, the development of renewable energy and the relaunch of industrial policies" (Energy DL).

The Law converting the Energy DL is currently on course to be published in the Official Gazette for entry into force.

With the aim of increasing the production of energy from renewable sources, the provisions of the bill converting the Energy DL introduce significant amendments to the provisions of Legislative Decree no. 28 of March 3, 2011 and Legislative Decree no. 199 of November 8, 2021 (RED II Decree).

The Energy DL provides for:

  • additional areas classified as “suitable areas,” even ex lege
  • further simplifications to the authorization process for:

a. non-substantial modifications for photovoltaic, wind, and hydroelectric plants
b. photovoltaic plants up to 10 MW
c. photovoltaic plants up to 20 MW
d. photovoltaic plants above 20 MW
e. photovoltaic plants with grounded modules up to 1 MW
f. photovoltaic and thermal solar plants in industrial areas
g. solar photovoltaic and thermic plants on top of buildings and on structures above ground other than buildings
h. agro-voltaic
i. floating photovoltaic plants
j. wind power plants
k. offshore wind power plants
l. hydroelectric storage plants through pure pumping
m. biogas and biomethane plants

  • expansion of self-consumption systems
  • criteria for access to incentives also for:

n. agro-voltaic
o. photovoltaic and solar photovoltaic plants floating on artificial reservoirs of small and large dimensions

  • long-term contracts (minimum three years) with GSE for the withdrawal and purchase service of energy from renewable source plants (PPA)
  • criteria for the modernization of greenhouse plants

Below we summarize the new provisions.

The following abbreviations are used:

  • DILA – “Dichiarazione Inizio Lavori Asseverata” or “Certified Declaration of start of works” ex art. 6-bis del D.lgs 28/2011
  • PAS – “Procedura Autorizzativa Semplificata” or “Simplified Authorization procedure” ex art. 6 del D.lgs 28/2011
  • AU – “Autorizzazione Unica” or “Single Authorization” ex art. 12 del D.lgs 387/2003 e s.m.i.
  • MiTe – Ministry of Ecological Transition;
  • MiC – Ministry of Culture;
  • MIMS – Ministry of Infrastructure and Sustainable Mobility
  • MPAAF – Ministry of Agricultural, Food and Forestry Policies
  • MEF – Ministry of Economy and Finance.
Suitable areas and suitable areas ex lege

Authorization advantages

  • For photovoltaic plants in suitable areas of new construction and related works and for repowering, refurbishment or full reconstruction in suitable areas, only the following authorization titles apply:

(a) DILA, if the plant has power up to 1 MW and the areas are in the availability of the proponent
(b) PAS, if the plant has a power from 1 MW to 10 MW
(c) AU, if the plant has a power above 10 MW

For plants sub (b) and (c), the need the areas to be available to the proponent is not specified, although it is specified in the relevant provisions (ie art. 12 of Legislative Decree 387/2003 and art. 6 of Legislative Decree 28/2011).

  • Photovoltaic plants of less than 20 MW falling into some specific categories are exempt from environmental procedures where the proponent attaches to the declaration a self-declaration showing that the plant is not located within areas specifically listed and identified as unsuitable (ex letter f) of Annex 3 DM September 10, 2010. It is necessary to evaluate this on case-by-case basis.
  • Landscape constraints in suitable areas (not relevant to the classification of areas as suitable) are not an obstacle to the issuing of the EIA and the single authorization or the PAS, and the time terms of the procedure are reduced by one-third. The competent authority for landscape matters also expresses itself with a non-binding opinion during the EIA. If there is no response, the authorization can be issued. The only critical point is that any dissent must be overcome in the services conference. For the DILA, it does not appear that the landscape authorization is necessary even if the site is burdened when the plant is on building structures that do not fall within the category of cultural assets or complexes of buildings as per art. 136 letters b) and c) and not with modules on the ground.

Priority access to incentives

It should be remembered that art. 5, paragraph 5, letter b) of Legislative Decree 199/2021 establishes priority access to incentives for plants built in areas identified as suitable, with the same economic offer.

Suitable areas

A distinction is made between:

  • eligible areas that require regulatory implementation (ie ministerial decree of the MiTE and regional law); and
  • eligible areas ope legis, for which the procedural advantages are immediately applicable.

In this regard, the distinction has been maintained in relation to the procedure for identifying "eligible areas" between eligible areas to be qualified as such following implementing decrees and regional law and eligible areas ex lege.

Decrees implementing the RED II Decree must also prioritize:

  • parking lots
  • areas for industrial, artisan, service and logistics use

It is expected, therefore, that the implementing decree will identify criteria and methods for the construction of plants on these areas.

In addition to the list of "suitable areas" qualified ex lege by the RED II Decree (areas immediately classified as suitable for which the authorization simplifications described above are applied), further categories of areas are added.

Landscape constraints are no longer relevant in determining whether an area falls within the list of "suitable areas." Only the constraints of cultural assets (part II of Legislative Decree 42/2004) are an obstacle to the inclusion of an area in a suitable area ex lege.

The following areas are classified by law as suitable, and the authorization simplifications described above are immediately applicable:

  • for photovoltaic plants, sites where substantial modification work is carried out for remaking, repowering, or complete reconstruction, also with the addition of storage systems with a capacity not exceeding 3 MWh for each MW of power of the photovoltaic plant, provided that the area occupied is:
    • the same area; or
    • if larger or different, is free of landscape constraints; and, if classified as agricultural, is enclosed within a perimeter whose points are no more than 300 m away from areas of industrial, artisanal and commercial use, including sites of national interest, as well as quarries and mines.
  • for photovoltaic plants, including those with modules on the ground, sites:
    • free of landscape constraints; and
    • if classified as agricultural, is enclosed within a perimeter whose points are no more than 300 m away from areas of industrial, artisanal and commercial use, including sites of national interest, as well as quarries and mines; or
    • within industrial plants and establishments and, if classified as agricultural, which are enclosed within a perimeter whose points are not more than 300 m from the same plant or establishment; or
    • adjacent to the highway network within a distance of not more than 150 m.
  • projects for the construction of plants in areas not subject to constraint (not further identified) and not included in areas declared unsuitable under regional regulations which, on the date of publication of the Energy DL, have the authorization procedure underway
  • sites in the ownership of Gruppo Ferrovie della Stato Italiane (for these sites the connection to the National Transmission Grid and distribution works are of public utility)
  • sites in concession to railway and highways concessionaires
  • for offshore plants the areas “not subject to constraints incompatible with the establishment of offshore plants”
Authorization simplifications

Additional authorization simplifications apply to the following categories of interventions and plants.

a. Non-substantial modifications for photovoltaic, wind and hydroelectric plants

The PAS is applied in the case of interventions of non-substantial modification that determine

  • an increase in installed power; and
  • the need for additional related works without increasing the occupied area.

If the areas affected by the plant modifications have not been previously evaluated from the point of view of archaeological protection, the prior verification of archaeological interest pursuant to Article 25 of the Public Contracts Code (Legislative Decree no. 50/2016) is applied.

b. Photovoltaic plants of power up to 10 MW

The PAS is applicable only if the plant is in a suitable area and if the proponent attaches to the declaration a self-declaration showing that the plant is not located within areas specifically listed and identified as unsuitable (ex letter f) of Annex 3 DM September 10, 2010.

c. Photovoltaic plants of power up to 20 MW

The PAS is applicable for photovoltaic plants of power up to 20 MW and the related works of connection to the electricity grid of high and medium voltage, if located:

  • in areas of industrial, productive or commercial destination;
  • in landfills or landfill lots closed and restored; or
  • in quarries or lots of quarries not susceptible to further exploitation, and the related works and necessary infrastructure, for which the authority responsible for issuing the authorization has certified the completion of the activities of recovery and environmental restoration provided for in the authorization title in accordance with regional regulations in force.

Environmental screening does not apply if the proposer attaches to the declaration a self-declaration showing that the plant is not located within areas specifically listed and identified as unsuitable (ex letter f) of attachment 3 DM September 10, 2010.
With regard to environmental procedures, the national EIA is applicable if the photovoltaic plant has a power greater than 10 MW and the plant is located within areas specifically listed and identified as unsuitable (ex letter f) of Annex 3 DM September 10, 2010.

d. Photovoltaic plants with a power exceeding 20 MW (art. 6 paragraph 9 bis of Legislative Decree 28/2011)

The AU is applicable and the prior procedure of verification of subjectivity to EIA at regional level, for:

  • photovoltaic plants with a power exceeding 20 MW and related works of connection to the electrical network of high and medium voltage if they are located:
    • in areas of industrial, productive or commercial destination;
    • in waste dumps or landfill lots closed and restored; or
    • in quarries or lots of quarries not susceptible to further exploitation, and the related works and necessary infrastructure, for which the authority responsible for issuing the authorization has certified the completion of the recovery and environmental restoration activities provided for in the authorization title in compliance with the regional regulations in force.
  • agro-voltaic plants with the characteristics indicated herein;
    • photovoltaic plants in a suitable area;

provided that the proponent attaches to the declaration a self-declaration showing that the plant is not located within areas specifically listed and identified as unsuitable (ex letter f) of Annex 3 DM September 10, 2010.

e. Photovoltaic plants with ground-mounted modules of power up to 1 MW (art. 6 paragraph 9 bis of Legislative Decree 28/2011)

Only DILA is applicable for photovoltaic plants with ground-mounted modules with power below 1 MW and related works for the construction of which no expropriation procedures are provided for, if they are situated:

  • in suitable areas;
  • in areas not subject to landscape constraints ex Legislative Decree 42/2004 (both cultural and landscape heritage); or
  • in areas outside of zone A as per Ministerial Decree no. 1444/1968 (built-up areas).

f. Photovoltaic and thermal solar plants in industrial areas

The installation of photovoltaic plants of any power is allowed in industrial areas (even on specially built support structures) also by derogating to zoning instruments and parameters provided that they cover an area not exceeding 60% of the industrial area of relevance.

g. Solar photovoltaic and thermal plants on roofs of buildings and on structures above ground other than buildings

They are classified as ordinary maintenance and are not subject to any permit, except for the presentation of the Simplified Single Form (see Article 10 of the Draft Law):

  • photovoltaic and thermal plants on buildings or structures and artifacts above ground other than buildings including structures, artifacts and buildings already existing within the ski areas and the construction of functional works for the connection to the electricity grid in the aforementioned buildings or structures and artifacts, as well as in their appurtenances, including any upgrades or adjustments of the network outside the areas of the same buildings, structures and artifacts;
  • photovoltaic plants on buildings located in complexes of immovable property that make up a characteristic appearance having aesthetic and traditional value, including historic centers and cores, for the sole purpose of installing panels integrated into the roofs that are not visible from outdoor public spaces and scenic viewpoints, except for roofs whose coverings are made of local materials.

If the building in question falls within the categories of Article 136 letter b) and c) or is classified as being of "considerable public interest" according to art. 21 and 157 of Legislative Decree 42/2004, the implementation of the interventions indicated therein is allowed subject to the issuance of authorization by the competent administration

h. Agro-voltaic

The PAS applies to agro-voltaic plants:

  • that meet the conditions of eligibility for the incentive established by the amendment to Article 65, paragraph 1-quater, of Decree Law 1/2012, namely that:
  • adopt innovative integrative solutions with the assembly of the modules elevated from the ground, also providing for the rotation of the modules themselves, however, so as not to compromise the continuity of agricultural and pastoral cultivation activities, also allowing the application of digital and precision agriculture tools;
  • implement monitoring systems to be implemented on the basis of the guidelines adopted by the Council for Agricultural Research and Analysis of Agricultural Economics in collaboration with the GSE within 30 days from the date of entry into force of this provision; and
  • that are no more than 3 km away from areas of industrial, artisan and commercial use.

Only if the power is higher than 20 MW, the regional environmental screening is applied, provided that the proponent attaches to the declaration a self-declaration showing that the plant is not located within areas specifically listed and identified as unsuitable (ex letter f) of Annex 3 DM September 10, 2010.
As far as the environmental procedures are concerned, the National EIA is applied if the photovoltaic plant has a power higher than 10 MW and the plant is located within the areas specifically listed and identified as unsuitable according to letter f) of attachment 3 DM 10 September 2010.

i. Floating photovoltaic plants up to 10 MW

It is necessary to wait for the issuance of the Ministerial Decree of MiTe (in agreement with MIMS and MEF) for the criteria for the application of regional environmental screening (if higher than 1 MW) and PAS to photovoltaic plants up to 10 MW placed in floating mode on the water surface of reservoirs and water basins, including reservoirs of discharged quarries or installed to cover irrigation canals, except for plants installed on basins that fall in areas under art. 136 of Legislative Decree 42/2004 or in protected natural areas or Natura 2000 network sites.

j. Repowering and revamping of wind power plants

For the application of the Communication of free building activities to non-substantial variations to wind plants, the definitions of "site of the wind plant" and "maximum height of the new wind turbines" are replaced.

“Site of the wind plant” means:

  • in the case of facilities on a single route, the new facility is built on the same route with a maximum deviation of an angle of 20°, using the same length plus a tolerance equal to 20% of the length of the authorized facility, calculated between the axes of the two extreme wind turbines, rounded up;
  • in the case of plants located along more than one axis, the total planimetric surface area of the new plant is at most equal to the authorized surface area plus an overall tolerance of 20%; the authorized surface area is defined by the perimeter identified, planimetrically, by the line joining, always forming convex angles, the points corresponding to the axes of the outermost authorized wind turbines"; The "maximum height of the new wind turbines" (h2) attainable from the tip of the blades is defined as the product of the maximum height above ground (h1) attainable from the tip of the blades of the existing wind turbine and the ratio between the rotor diameters of the new wind turbine (d2) and the existing wind turbine (d1): h2=h1*(d2/d1).

k. Offshore wind power plants

The guidelines for the authorization process are adopted by MiTe, in agreement with MISM, after consultation with MiC and MPAAF. The agreement of the MiC is no longer needed.

l. Hydroelectric accumulation plants through pure pumping

A single authorization is issued by the MiTe, after hearing the MISM, in agreement with the Region concerned.

m. Biogas and biomethane plants

Other Simplified procedures have been ruled for plants located on site of the Military Authority and for little size plants for the use of geothermal heats.

In case of re-building or variations, the environmental procedures (if applicable) are carried out only in respect to the proposed variations.

Expansion of self-consumption systems

The allowable configurations of self-consumption are expanded. It is possible to connect a production plant to a consumption unit even if they are not on the same site or on adjacent areas. The production plant from renewable sources can be directly interconnected to the end customer's consumption unit with a direct connection line with a length not exceeding 10 km. In this case, the production plant from renewable sources may be owned or operated by a third party. The contract for the sale of energy is at a freely established price without the complications of dispatching. If the producer coincides with the consumer, the excise tax is exempted.

With regard to general system charges, ARERA will establish the modalities for the application of these charges to self-consumed energy in newly built configurations.

The self-consumer must have the availability of the buildings or sites where one or more plants for the production of energy from renewable sources are located. The self-consumer may use the existing distribution network to share the energy produced and consume it at the points of withdrawal of which the self-consumer owns.

Criteria for access to incentives

a. Agro-voltaic

Agro-voltaic plants can access the incentives if they meet the conditions pursuant to art. 65 of Law Decree no. 1/2012:

  • If they adopt innovative integrative solutions with assembly of the modules elevated from the ground, also providing for the rotation of the modules themselves, however in such a way as not to compromise the continuity of agricultural and pastoral cultivation activities, also allowing the application of digital and precision agriculture tools.
  • If they implement monitoring systems to be implemented on the basis of guidelines adopted by the Council for Agricultural Research and Analysis of Agricultural Economics in collaboration with the GSE within 30 days from the date of entry into force of this provision.
  • Fractioning or transfer of land is not allowed, under penalty of inaccessibility to incentives for ten years (this provision is not clear).

b. Floating solar photovoltaic plants on artificial reservoirs of small and large size

Floating solar photovoltaic plants to be built on wet surfaces or on artificial reservoirs of small or large size where compatible with other uses can access incentives.

PPA GSE

With the introduction of Art. 16-bis, the GSE can offer a service for the withdrawal and purchase of energy produced by renewable plants through the execution of long-term PPAs whose minimum duration is three years.

Criteria for modernization of greenhouse plants

To combat the environmental and landscape degradation resulting from the progressive structural deterioration of the national greenhouse heritage and to promote its conversion for efficient reuse, the MiTE, by means of its own decree, in agreement with the MPAFF and the MiSE, within 60 days of the date of entry into force of the law converting this decree, will prepare a national plan for the conversion of greenhouse plants into agro-energy sites.

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