Solar farms and an environmental decision in Poland.

Does the construction of a photovoltaic power station in Poland require an environmental decision?

Does the construction of a photovoltaic system require obtaining a decision on the environmental conditions for the implementation of an RSE undertaking?

Another question frequently asked by my clients concerns the necessity of obtaining a decision on the environmental conditions for the construction of a photovoltaic power station.

To answer that question, one must first determine whether the planned RSE undertaking (and the construction of a photovoltaic power station undoubtedly is such an undertaking) can have an environmental impact. The Polish Act of 3 October 2008 on the dissemination of information about the environment and its protection, public participation in environmental protection and environmental impact assessment (Journal of Laws: Dz. U. of 2008, no. 199, item 1227; uniform text: Journal of Laws: Dz. U. of 2020, item 283) (hereinafter referred to as the EPA act) defines an undertaking as a construction project or another interference in the environment which consists in land transformation or changing the purpose of land use, including mineral extraction; technologically connected undertakings are qualified as one even if they are carried out by different entities. It is also important that, under the judgment of the Provincial Administrative Court in Rzeszów of 25 March 2014 (ref. no.: II SA/Rz 185/14), a technological connection is a relationship between undertakings which makes them an organized whole in the form of one, coherent infrastructure intended to serve the same economic purpose. The connection referred to in that provision also applies to undertakings of the same kind which use the same technology, even if they are planned by different legal entities. The above is aimed at preventing the division of an undertaking into numerous smaller parts, so-called salami slicing, e.g. by the construction of two seemingly separate photovoltaic power stations with the surface area of each not exceeding 1 ha instead of one station with a surface area exceeding 1 ha. Such actions are taken to avoid the necessity of obtaining a decision on the environmental conditions for a given undertaking because it is not required for systems with a surface area of less than 1 ha (with certain exceptions mentioned below).

Undertakings which require obtaining a decision on the environmental conditions can be divided into two main groups:

– undertakings which may potentially significantly impact the environment;

– undertakings which may always significantly impact the environment.

Obtaining an environmental decision for the undertakings which may always significantly impact the environment is possible after conducting an environmental impact assessment.

However, obtaining an environmental decision for the undertakings which may potentially significantly impact the environment is possible also without conducting an environmental impact assessment. The need for that assessment in such case depends only on the decision of the body conducting the proceedings.

Under the Polish Ordinance of the Council of Ministers of 10 September 2019 on the undertakings which may significantly impact the environment (Journal of Laws: Dz. U. of 2019, item 1839), RSE system undertakings which may always significantly impact the environment are the systems which generate electrical energy using wind power and:

1.their total rated power as power stations equals at least 100 MW;

2. their location is in the sea territories of the Republic of Poland.

RSE undertakings which may potentially impact the environment include:

1) hydroelectric power stations;

2) other wind power stations than those mentioned above:

a) which are located in the areas subject to the nature conservation forms referred to in art. 6 par. 1 subpar. 1–5, 8 and 9 of the Polish Act of 16 April 2004 on nature conservation (Journal of Laws: Dz. U. of 2018, item 1614, 2244 and 2340, and of 2019, item 1696 and 1815), excluding systems intended only for supplying power to road and railway signs, devices which control or monitor the road or railway traffic, aids to navigation, lighting devices, billboards and advertising boards;

b) the total height of which equals at least 30 m;

3) systems for the manufacture of fuels from plant products, i.e. biogas plants, excluding systems for the manufacture of agricultural biogas as defined in art. 2 par. 2 of the Polish Act of 20 February 2015 on renewable sources of energy, the installed electrical capacity of which does not exceed 0.5 MW or which generate an equivalent amount of agricultural biogas applied for other purposes than the production of electrical energy;

4) photovoltaic power stations, i.e., in accordance with the nomenclature used in the abovementioned ordinance, a photovoltaic system development with a surface area of at least:

a. 0.5 ha in the areas subject to the nature conservation forms referred to in art. 6 par. 1 subpar. 1–5, 8 and 9 of the Polish Act on nature conservation or in the protection zones of the nature conservation forms referred to in art. 6 par. 1 subpar. 1–3 of the Polish Act on nature conservation;

b. 1 ha in other areas than those listed in clause a.

The surface area of the development is the land area occupied by the building structures and the remaining land intended for transformation as a result of carrying out a given undertaking.

The nature conservation forms referred to above are:

1) national parks;

2) nature reserves;

3) landscape parks;

4) protected landscape areas;

5) Natura 2000 areas;

6) ecological sites;

7) landscape-nature protected complexes.

In my next article I will discuss the stages of the proceedings of obtaining a decision on the environmental conditions for an RSE undertaking.

This article does not constitute legal advice.

• Wojciech Wojtala
• Proces inwestycyjno-budowlany dla OZE
• 12 lis 2020