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I. CONCEPT.
Special Protection Areas can be defined as “those health establishments intended to use mineral-medicinal and/or thermal waters for therapeutic purposes” – art. 2 of the Decree of the Region of Murcia 55/1997, which regulates the sanitary conditions of the Special Protection Areas, thermal baths and thalassotherapy and peloid application establishments. Although the two main aspects of their legal regime – and what distinguishes them, for example, from Special Protection Areas – are the condition in which mineral-medical or thermal water is used and its sanitary nature, we cannot forget that The spa is sometimes an establishment hotel.
II. BUDGET FOR ESTABLISHING LSC: PROCUREMENT OF MINERALS AND/OR THERMAL WATER
To establish a spa, the budget is that we get mineral-healing and/or thermal water. It is a principle included in art. 27 of DL of April 25, 1928, in which it is stated that “the declaration of the public utility of a spring will be a prerequisite and necessary to proceed with its exploitation as a spa establishment, by selling bottled water or both”. Thought repeated in art. 24 of the Law 22/1973, of 21 July, regarding Mineswhich provides that “declaration of the condition of certain waters shall be a prerequisite for the authorization of their use as certain waters, to be able to agree ex officio or at the request of any person who meets the conditions laid down in Title VIII”.
The requirements for declaring water to be mineral-healing and/or thermal are included in the Mining Law, which provides for mineral-healing mineral water that is “naturally or artificially illuminated and, due to its characteristics and qualities, it is declared to be a public utility. ” (article 23.1 a) of the Mining Law), and that they must have therapeutic properties that can be used in them to be used in Special Protection Areas.
According to art. 23 of the same Law, “thermal waters are those whose temperature rises four degrees Celsius higher than the annual average of the place where they burn”; although, according to art. 30 of the Act, only those that can be used for therapeutic or industrial use will be considered as thermal water; with the other hot springs being governed by water legislation.
As regards the procedure for declaring water as mineral-medicinal and/or thermal water, that is the procedure provided for in the Mining Law 1973 and Royal Decree 2857/1978, of August 25, which approves the General Regulations for the Mining System. In each Autonomous Community with powers, it was possible to configure some specificity on the generic procedure.
The procedure begins with the submission of the application to the competent regional body for mining. That request must be published in the Official Journals of the State, the Autonomous Community and the Province, so that other interested parties can make the corresponding allegations within the period to be determined.
Once the term has passed, the date on which 3 samples will be taken, two hours apart, will be announced and the minutes will be drawn up. The water will be divided into three or four parts, depending on whether the applicant is the owner of the land, so that one remains in the hands of the autonomous body, another part of the owner, and another part, if appropriate, of the non-owner applicant, and a quarter is sent to the Geological and Mining Institute of Spain, to be analyzed from a physico-chemical point of view and a subsequent report.
In the same way, it will be necessary to issue a bacteriological report by the Ministry of Health of the Autonomous Community concerned, after the corresponding sample. If the analysis and reports of the Spanish Institute of Geological and Mining Technology and the Health Institute are positive, the Autonomous Community will proceed with its confirmation, notifying the applicant and publishing it in the Official Journals.
III. PROTECTION FROM SPECIAL WATER CONDITIONS
The fact that we are facing water of these characteristics at the initial moment of the declaration of mineral-healing and/or thermal water is not enough to develop the spa activity. It is necessary to prevent the entry of polluting agents that prevent their properties from unfolding.
For this reason, one of the proposed measures is the establishment of a protective perimeter, provided for in art. 28 of the Mining Law. It specifies what activities can be carried out in its area, usually establishing three sub-sectors, which distinguish between the direct or maximum restricted area – which protects against spillage or direct infiltration into the catchment area -, the adjacent area manual or containment medium – which protects against microbiology. contamination – and the remote area or the area with minimal restrictions – which protects against long-term contamination and includes a water quality surveillance network -.
In this sense, it must be taken into account that the Administration’s obligation to determine the perimeter remains, which is the owner’s right in any case. The owner of the water use is responsible for carrying out the intervention measures, regardless of whether the administration has to authorize the activities and that, in some cases, they are entitled to compensation for the damages that could be done.
IV. THE SPA AS HOLDER OF EXCLUSIVE RIGHTS TO USE MINERAL WATER AND/OR THERMAL WATER
The owner of the spa must obtain an enabling title for the use of the resource, in such a way that it provides the right and the obligation to use the water.
According to art. 25 of the Mining Law Act, they have a right of priority in relation to the exploitation of waters that come from springs or lighting that are in the public domain those who insisted on the Administration file of the mineral declaration of the waters. It is a right prescribed in one year from the administrative declaration of the waters as mineral-medicinal and/or thermal waters.
Exploiting this type of resource requires a significant infrastructure. For that reason, as a requirement to exercise this right of priority, a request must be submitted to the Administration, together with a general use plan, the investment budget and the economic study on its financing with guarantees of its viability; naming or justifying the outline of the defence; indicating the destination of the water, and determining the perimeter of protection. This project may be authorized without further development or modification in accordance with the mining legislation.
If this right was not exercised or was denied, the applicant who filed the declaration of the waters as minerals will have a period of six months to request the authorization of use in his favor. When this last period has passed without submitting the application, or if it is rejected, the Administration Department may put the use to tender in the manner set out in Article 53 of the LM.
V. THE SPA AS AN ESTABLISHMENT OF HEALTH
V.1. GENERALLY
The second aspect of Special Protection Areas is that they are sanitary facilities. In fact, the Annex attached to the Royal Decree 1277/2003, establishing the general bases for authorizing health centres, services and establishments it includes spaces in the section “Health services integrated in a non-health organization: services that carry out health activities but are integrated in organizations whose main activity is not health (prison, company, spa, nursing home,…)”.
For this reason, in order to carry out the spa activity, authorizations before carrying out the activity must be obtained from the regional authority. It must be obtained to install, operate, modify and, where appropriate, close any center within its territorial scope.
The second basic element is the personnel in charge of the decision and implementation of the therapeutic treatments. There must be three types: i) the medical director, who acts as coordinator of the health personnel, who must have specific qualifications; ii) subject to it, there must be several doctors specialized in hydrology, sufficient for the health care needs of the Spa; and iii) the bathroom staff, who will apply the treatments to the patients and maintain the hygiene of the facilities.
Thirdly, these establishments must comply with regulations regarding facilities adapted to the needs of the health services provided in them. For example, art. 20 of Law 6/1994 from Extremadura requires i) appropriate diagnostic methods, as well as an adequate consultation center, ii) precise methods to use water therapeutically and other specific physical methods, iii) complementary methods to facilitate treatment and iv) a device emergency.
V.2 in particular, USERS OF THE SPA AS PATIENTS
From the point of view of the activity, obligations are likely to be assumed when considering the spa as a health establishment. However, from the user’s point of view, it has a very important consequence: the user is not just a client, but they are the legal status of the patient and, therefore, have all the rights recognized by the legislation for the group here they are.
In addition, they submit to the internal regulations that determine the conditions of use of each of the facilities, meals and other details of life in the Spa. The patient’s basic rights to privacy and information are expressed, as well as the fact that, by applying the general principles, he has a legitimate confidence to adapt to new information and medical treatments.
Saw. THE SPA AS A HOTEL ESTABLISHMENT AND OTHER COMPLETE USES
The spa is not only a place to get therapeutic treatments but also has hotel and recreational facilities.
Apart from their submission to the authorizations provided for in the tourism legislation and their classification according to regional regulations, perhaps the most relevant characteristic of these hotel facilities linked to Special Protection Areas in the strict sense is that separating the tourism part from the therapy.
In fact, in recent years the Spa has been considered as a leisure element being promoted; which determines, next to the therapeutic values ​​previously referred to, that ludic uses are appropriate. This is what is regulated, for example, in Law 8/2019, of 23 December, which regulates the recreational use of thermal waters in Galicia