The Supreme Court refuses to annul the increase in ecological flow in the Tagus River as requested by the Junta de Andalucía

The Supreme Court has dismissed the appeal filed by the Junta de Andalucía against Royal Decree 35/2023, of January 24, which approved the review of the hydrological plans of several hydrographic districts, including the increase in the ecological flow of the Tagus River to 8 .6 cubic meters per second, which means that a greater amount of water must remain in the river to guarantee its environmental conservation. A measure criticized by the Andalusian Government, understanding that it would directly impact the Tajo-Segura transfer, which supplies water to areas such as Almería.

For this reason, the Andalusian Government Council endorsed the filing of this appeal on March 21, 2023 in order for the State to “reverse” the increase in the ecological flow of the Tagus, alleging that it would result in a “cut ” of the Tajo-Segura transfer that would have a negative impact on agriculture and that “will lead to ruin for an immense percentage of the productive sector” in the north and east of the province Almeria.

The Supreme Court announced this Monday that the Fifth Section of the Contentious-Administrative Chamber has rejected “all the grounds for nullity alleged by the Junta de Andalucía.” The Andalusian Government rejected the modification approved by the Council of Ministers two years ago, arguing that it did not have technical or legal reports to support it and that it had been taken “unilaterally” by the Ministry for the Ecological Transition and the Demographic Challenge , modifying the agreement reached by the autonomous communities in the National Water Council in which they agreed on an increase to 6 cubic meters per second.

Now, regarding the lack of a report from the National Water Council, the high court ruling “reiterates that the criteria of this body, mandatory, but not binding, has been validly issued, thus fulfilling the function of participation and consultation that the regulation entrusts it in the procedure for preparing the draft Royal Decree.” Likewise, the ruling considers that “the consultation process for the determination of ecological flows has not been omitted either, as the appellant community alleged.”

The “wrong conclusion” of the Board

Likewise, it rejects the challenge relating to the violation of the principle of regulatory hierarchy, since, “on the one hand, the ecological flow regime binds the rest of the uses and exploitations, in accordance with the regulations in force – with the exception of supply to populations – and, on the other hand, whether or not to release water for transfer is based on the combined volume of water existing in the aforementioned reservoirs, in accordance with the Royal Decree in force, and not on the magnitudes invoked by the Recurring administration”.

The Supreme Court concludes that the Board uses “a fragmented and inaccurate presentation of the legislative history to reach the wrong conclusion that the planned ecological flow violates the minimum flow provided for in the previous regulations regulating the transfer.”

Regarding the lack of technical motivation in the establishment of the ecological flows, argued by the appellant, the ruling emphasizes that in this case the elements of evidence provided by the Junta de Andalucía “do not allow to distort the establishment of the ecological flows in accordance with the methodological and technical instructions contained in the Hydrological Planning Instruction, after following a complex procedure promoted by the hydrographic demarcations and which is based on the pertinent studies referred to in the MAIN.

With this appeal, Andalusia joined the judicial actions taken by the executives of the Valencian Community and the Region of Murcia that also went against an “unjustified” decision of the State that, in the opinion of the Andalusian Government, entails “a great “detriment to the Spanish Levante in general and to Almería in particular.” The Supreme Court has already ruled along this same line with both the Generalitat Valenciana and the Region of Murcia and the Provincial Council of Alicante, also rejecting the suspension of the ecological flow of the Tagus.