Law-decree 17/2022 (Decree), whose conversion law (no. 32/2022) was published in the Italian Official Gazette on 28 April 2022, effective as of 29 April 2022, is intended to (among others measures) simplify the national regulatory framework for renewables.

We have highlighted the most important measures for renewable energy plants.

1. Suitable areas

Although ministerial decrees and regional laws identifying actual areas have yet to be passed, the Decree adds areas that are in the meantime considered suitable. Such areas benefit from faster administrative proceedings (this also applies to administrative proceedings that are currently pending).

1.1.New areas and further amendments to legislative decree 199/2021

As we mentioned in our previous newsletter we are still waiting for guidelines from the Ministry of Ecological Transition (MITE) to identify “suitable areas” as set forth in Legislative Decree 199/2021: these guidelines will be enacted by June 13, 2022, and the regions must use them as a reference when identifying suitable areas within their regional territory in the following 180 days.

The Decree now sets out a series of adjustments.

1.1.1.The Decree sets out that the MITE, in issuing guidelines for the regions to identify suitable areas, should also consider industrial, handicraft, services and logistics areas as suitable (in addition to built-up areas, e.g. industrial warehouses and parking lots).

1.1.2.The Decree increases the areas that are the Legislative Decree no. 199/2021 considered as suitable “ex lege”, and to which, as we will analyze in the following paragraph 1.2, certain simplifications will apply.

In particular such new areas are:

• For photovoltaics with ground-mounted modules in areas not subject to constraints:

- agricultural areas, which must be no more than 300 meters away from industrial, handicraft and commercial areas (including sites of national interest), or from quarries and mines;

- areas within industrial sites and agricultural areas that are no more than 300 meters away from the same industrial sites;

- areas no more than 150 meters away from highways.

Please note that new areas will be added to those areas suitable “ex lege” already provided for by Legislative Decree no. 199/2021:

• Areas where plants of the same type are already installed and where non-substantial modification works have been carried out, and for photovoltaics, areas where photovoltaic plants have already been built, and where substantial changes have been carried out to renovate, upgrade or complete rebuild the plant, including the addition of storage systems with a capacity not exceeding 3 MWh for every MW of photovoltaic plant capacity.
• Areas subject to reclamation;
• Non-functioning quarries and mines that have not been recovered or abandoned or in conditions of environmental degradation;
• Areas whose property rights are held by FSI Group companies.

1.2. Simplifications of administrative procedures

As mentioned, plants to be built in suitable areas - including those that are considered as suitable “ex lege” and mentioned in point 1.1.2. above - will benefit from simplified authorization procedures.

1.2.1. Here are the new procedures and requirements:

• Sworn declaration of works commencement (Dichiarazione di inizio lavori asseverata) for all works (including related and indispensable infrastructures): for plants up to 1 MW in areas that are (i) available to the applicant (for which no expropriation procedures are planned), (ii) not subject to the rules of protection set out in the Cultural Heritage Code, and (iii) outside “Zona A”;
• Municipal Simplified Procedure (PAS):  for plants with a capacity of more than 1 MW and up to 10 MW;
• Single Authorization (AU): for plants with a capacity of more than 10 MW.

1.2.2. An important confirmation that comes from the conversion law (and that we briefly analyzed here) regarding the speeding up of authorization procedures for plants built in areas classified as suitable: the opinion of the competent landscape authority is now considered to be mandatory but nonbinding, even in Environmental Impact Assessment procedures and not only (as was in the past) in proceedings for issuance of the single authorization under Legislative Decree 387/2003 . This means that if the time limit expires before the landscape authority issues its nonbinding opinion, the competent administration is nevertheless obliged to decide upon the authorization request and/or the environmental assessment.

1.3. Pending proceedings

The conversion law also brings some important clarifications for pending proceedings.

1.3.1. The Decree specifies that the simplifications mentioned in paragraph 1.2 above will also be applied, at the applicant’s request, to proceedings in areas suitable “ex lege” that are pending on the date of entry into force of the conversion law (i.e. 29 April 2022).

1.3.2. Moreover, the Decree provides that procedures pending on 29 April 2022 and related to projects located in areas that are:

a) not subject to any constraint and

b) not included in areas declared as “unsuitable” under regional regulations,

will be simplified as if they were procedures in suitable areas, meaning: (i) the opinion of the competent environmental authority is obligatory but not binding (as described above 1.2.2), and (ii) the time allotted for the authorization procedures will be shortened by one-third.

2. Municipal simplified procedure (Procedura Abilitativa Semplificata – PAS)

The fastest among the authorization procedures, is now extended for photovoltaics built on new areas, with the aim to speeding-up administrative procedures. Such plants won’t be required to enter into the environmental impact assessment screening.

2.1. New Areas for PAS proceedings

Those areas where PAS is applicable have been extended and include the following:

• Photovoltaics up to 20 MW and works of connection to the medium and high voltage electrical network (previously they were only provided for medium voltage) in:

- Industrial, productive and commercial areas,

- Landfills or landfill lots that have been closed or restored,

- Quarries or cable lots not eligible for further exploitation and which have been restored;

• Plants in areas classified as suitable under Legislative Decree 199/2021 and areas classified as suitable “ex lege” (up to 10 MW) (see above 1.1.2);
• Agrovoltaic plants that are no more than three kilometers away from industrial, productive or commercial areas.

2.2. Environmental Impact Assessment screening exemption

In order to further simplify the procedure, for these types of plants with a capacity up to 20 MW, it is not necessary to carry out an Environmental Impact Assessment screening as long as the applicant encloses a self-declaration indicating that the plant is not located in areas that the MISE guidelines dated September 10, 2010 consider unsuitable (areas that are particularly sensitive and/or vulnerable to territorial transformations of the landscape, e.g. Natura 2000 Network, UNESCO sites, etc.).

The Decree also specifies that the direct construction referred to in the PAS procedure applies even when urban planning requires implementation plans for construction (piani attuativi per l'edificazione).

3. Agrovoltaic plants

Even if incentives remain precluded for renewables in agricultural areas, agrovoltaic plants can now file applications for new incentives provided by the government (but still to be implemented), without the previous 10 percent agricultural land use limit. Further restrictions have been added.

3.1. Access to incentives

According to Italian law, agrovoltaic plants are plants that adopt innovative integrative solutions with elevated module installation from the ground, also providing for the rotation of the modules themselves, in any case in such a way as not to compromise the continuity of agricultural and pastoral cultivation activities.

Access to incentives (however, yet to be implemented by the relevant ministerial decrees) is now open to agrovoltaics regardless of the percentage of agricultural land used, but conditional upon the simultaneous implementation of monitoring systems that allow to verify the impact on crops, water savings, agricultural productivity for the different types of crops and on the business continuity. These monitoring systems will be subject to guidelines adopted by CREA in collaboration with the GSE within 30 days of the entry into force of the Decree.

3.2. PAS Proceedings

As we mentioned in paragraph 2.1 above, PAS is now applicable for agrovoltaic plants that are no more than three kilometers away from industrial, productive or commercial areas, and for such plants (with a capacity up to 20 MW) is not necessary to carry out an Environmental Impact Assessment screening as long as the applicant encloses a self-declaration indicating that the plant is not located in areas that the MISE guidelines dated September 10, 2010 consider unsuitable.

3.3. The 10-year limit

The Decree also introduces a new limit. The plots of land on which agrovoltaic plants are located cannot now be used for further installations of photovoltaic plants for 10 years following the award of the state incentives. The Decree establishes that such limit also applies following the splitting or the transferring of the land for any reason.

4. Floating photovoltaic plants

A new era for floating systems. New simplifications procedure (PAS) and incentives have now been introduced in order to speed up new installations.

4.1. Applicability of the Municipal Simplified Procedure (PAS) and exemption from EIA proceeding

The Municipal Simplified Procedure can now be used for floating photovoltaic plants up to 10 MW built in:

• Ponds
• Water reservoirs
• Water reservoirs in decommissioned quarries or installed to cover irrigation canals.

However the Decree provides that the MITE with its own decree, within 90 days from the issuing of the Decree, will establish the criteria for the installation and the environmental integration of the plants in order to balance the sun exposure of the water body and the positioning of the plant with respect to the banks and the depths of the basin. Therefore, we have to wait for the MITE decrees for these measures to be implemented.

4.2. Access to incentives

Floating photovoltaic plants will also be eligible for incentives that have yet to be implemented. However, such incentives will be subject to the 10-year limitation that we described above under paragraph 3.3 for agrovoltaics.

5. Photovoltaics in industrial areas

In industrial areas, plants can also be installed in derogation from urban land-use plans, with a newly-introduced limit of 60 percent of the relevant industrial area.

The Decree provides that in industrial areas the installation of solar photovoltaic and thermic plants could cover an area of up to 60 percent of the pertaining industrial area, even if this derogates from the urban planning instruments of the municipality and from existing coverage indices.

Such plants could also be installed on purpose-built support structures.

6. Photovoltaics on rooftops and buildings

Rooftop-mounted photovoltaic plants will not be subject to any permit (the so-called “edilizia libera”). The single simplified model is extended to photovoltaic and thermic plants with a capacity of up to 200 kW.

6.1. General simplification rules for construction over rooftops

The Decree now considers the following activities to be “attività di edilizia libera”:

• Installation of photovoltaic and thermic plants on buildings, or on structures and artifacts above ground that are other than buildings (including ski resorts) and works related to their connection to the electrical grid;
• Outdoor upgrades and adaptations of the connection works in the area of those same buildings.

This means that, since they are now considered by the legislator as ordinary maintenance interventions, implementing such works is not subject to obtaining permits, authorizations or any other administrative act, including the ones required by the code of cultural heritage and landscape.

However, exceptions are provided for plants installed on top of buildings, or on top of buildings in areas such as (i) villas, gardens and parks of “uncommon beauty,” and (ii) buildings that “have a characteristic appearance with aesthetic and traditional value” including those present in historical town centers.

To install plants on top of such buildings, it is necessary to obtain prior authorization from the competent administration.

In historical town centers, if the modules are integrated into the roofs and are not visible from public view or panoramic viewpoints, the aforementioned simplification will apply; however, plants built on rooftops made of traditional local materials do not benefit from this simplification.

6.2. The single simplified model for rooftop installations up to 200 kW

Effective April 15, 2022, the single simplified model for small rooftop renewable installations was introduced. This model was introduced in the beginning for plants up to 50 kW. The MITE will now identify within 60 days the conditions and procedures for extending this simplified model to rooftop installations and buildings with a capacity up to 200 kW.

We remind that, with the single simplified model, it will also be possible to directly apply for incentives once the implementation decrees will come into force.

7. Simplification for wind and photovoltaic repowering and revamping

Following the path already outlined by the Semplificazioni-bis Decree, the Dichiarazione di Inizio Lavori Asseverata (DILA) is now sufficient for non-substantial changes in plants and projects. New quantitative specifications to consider changes as non-substantial for wind plants.

7.1. Simplifications for non-substantial changes over plants

For non-substantial changes to a plant (i) to increase the installed power, or (ii) that are necessary for further connected works, and that do not increase the area covered by the plant, operators now only need to present the Sworn declaration of works commencement (Dichiarazione di inizio lavori asseverata), except for areas that have not been previously undergone an archaeological evaluation. In that case a prior verification of archaeological interest is required.

7.2. Simplification for wind-plants

Non-substantial changes to wind farm projects/plants and to connected works, which, regardless of the result of such changes, are carried out on the same site of the plant are subject to simplified procedure of the Comunicazione in edilizia libera. Moreover, the Decree amended the quantitative specifications to consider those changes as “non-substantial”.

8. Self - consumption of renewable energy

Companies and condominiums will be able to become self-consumers by connecting to renewable energy production plants located in buildings or sites different from the one they operate in, given certain restrictions.

8.1. New Definition for renewable energy self-consumers

The Decree provides for two categories of “remote self-consumption”:

• Direct connection, provided that the line connecting the place where the energy is consumed and the place where the energy is produced is no more than 10 kilometers and that no users other than the producer and the individual consumer are connected.
• Use of an existing distribution network to share energy produced by the renewables plant. The consumption of energy must then take place at the withdrawal points owned by the same self-consumer.

8.2. Access to incentives

Self-consumers could then apply for those incentives provided by Legislative Decree 199/2021 and which will be better described by dedicated decrees of the Minister of Ecological Transition, when they are published on June 15, 2022.

• Those self-consumers referred to under the first point of paragraph 8.1. above will be able to apply for incentives which, depending on the size of the plant may be those provided for i) plants above 1 MW, ii) small plants (those below 1 MW), or  iii) collective self-consumers and renewable energy communities.
• Self-consumers under the second point of paragraph 8.1 above will only be eligible to apply for those incentives offered for self-consumers and renewable energy communities.

9. Expropriations for public utility - grid connections

The Decree introduces new possible consistencies with the usi civici. Moreover, it declares the regional opinion about the compatibility of the works as not necessary if not given in due time. DILA will now be required for works variations consisting in the shift from area lines to underground cables.

9.1. Usi civici consistency

Lands encumbered by so-called “civic use” (usi civici) cannot normally be expropriated unless a change of use is declared by the relevant public authority, except for “works of public utility” that are considered to be consistent with usi civici.

The Decree now provides for new possible consistencies with usi civici, as regards grid connection:

• Construction of power lines, without prejudice, however, to the possibility for the respective region or delegated municipality, to comment on a case-by-case basis with a proper justification within the authorization process;
• Reconstruction of already-existing overhead or underground power lines that are necessary because of their obsolescence. This, provided that they are realized with the best existing technologies and are executed on the same track of the already-existing power line or in its immediate surroundings.

The Decree also provides that, if the respective regions do not express themselves about the compatibility of the works with the usi civici with regards to construction of national power lines, compatibility is considered as confirmed.

9.2. “Dichiarazione di inizio attività” for cable works

For variations consisting in a shift from areal lines to underground cables, it will only be necessary to send a declaration of work commencement. Such works, however, are subject to size limits. They must not i) entail variations in length of more than 1,500 meters or ii) involve variations of more than 3,000 meters in length, provided that they do not fall, even partially, into protected natural areas and provided that they use the same layout or depart from it by no more than 60 meters.