Natura 2000 Environmental assessment

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Natura 2000 Environmental assessment

• Anna Liro

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Impact Assessment according to Art. 6 (3)

• Any plan or project not directly connected with
  or necessary to the management of the site but
  likely to have a significant effect thereon,
  either plans or projects, shall be subject to
  appropriate assessment of its implications for
  the site in view of the sites conservation
  objectives.
• the competent national authority shall agree to
  the plan or project only after having ascertained
  that it will not adversely affect the integrity
  of the site concerned and after having obtained
  the opinion of the general public.

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Impact Assessment according to Art. 6 (4)

• If, in spite of a negative assessment of the
  implications for the site and in the absence of
  alternative solutions, a plan or project must
  be carried out for imperative reason of
  overriding public interest, including those of
  social or economic nature, the MS shall take all
  compensatory measures necessary to ensure that
  the overal coherence of Natura 2000 is protected.
• It shall inform the Commission of the
  compensatory measures adopted.
• Where the site hosts a priority natural habitat
  type and/or a priority species the only
  considerations which may be raised are those
  relating to human health or public safety, to
  beneficial consequences of primary importance for
  the environment or, further to an opinion from
  Commission, to other imperative reason of
  overriding public interest.

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Impact Assessment according to Art. 6 (3) and (4)

• The provision of Article 6 (3-4) of the Habitat
  Directive should ensure that the realisation of
  plans or projects to not jeopardize the
  ecological values and coherence of the Natura
  2000 network
• Therefore, the competent authorities are obliged
  to assess the effects of plans or projects on the
  conservation objectives of the Natura 2000 sites
  (SCI and SPA)

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EIA procedure is applied

• Special Protected Areas (SPAs)
• Sites of Community Importance (SCIs)
• Special Areas of Conservation (SACs)
• Potential Natura 2000 sites (Shadow list)

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Transposition of EIA

• Before accession to EU
• Mainly to Law of environmental protection (2004,
  2005) and Law on nature conservation (2005)
• Transposition was done with many failures
• Some failures was shown in the letter of formal
  notice

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Failures in our transposition

• EIA was limited to habitats and species not for
  overall integrity of the Natura 2000 site
• EIA not comprised all plans and projects which
  are likely to have significant impact to the
  Natura 2000 site
• Lack of requirement of to send information to
  the Commission on compensation measures

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Triggering of the assessment

• Any plan or project has to be assessed which has
  a probability or a risk that it will have
  significant effects on the site concerned
  (C127/02)
• The assessment has to be carried out, of it
  cannot be excluded that the plan or project will
  have a significant impact on the site

Effects of a project or plan
No impact
No significant impact
Significant impact
Threshold of relevance
Threshold of significance
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Impact Assessment according to Art. 6 (3) and (4)
1. Screening
2.Appropriate Assessment
3. Assessment of alternative solutions
4. Assessment of compensatory meassures
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Stage 1 Screening
Plan or project is directly connected to or
necessary for the management and is unlikely to
be significant effects on the site
NO
YES
Authorisation process
Significant impacts are likely to occur
NO
YES
Stage S
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Purpose of screening

• A screening is to determin whether
• A project/plan has direct or indirect effects on
  relevant Natura 2000 site
• There is a certainty that the effects will not
  have any significance

Precautionary principle
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Significance of impacts

• The term significance is not defined in the
  Habitat Directive
• Art. 6 (3) Any plan or project likely to have
  a significant effect on a site shall be
  subject to appropriate assessment in view of
  the sites conservation objectives.
• The notion of what is a significant effect cannot
  be treated in an arbitrary way
• All aspects of a plan or project must be
  identified in the light of the best scientific
  knowledge in the field (ECJ 127/02).
• Significance can not be measured with one
  indicator only (e.g. the percentage of affected
  area or population).
• The assessment of the significance of an impact
  will remain at least to a decision of the expert
  although guidelines have been elaborated.

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Decision of experts

• Certainly not significant impacts

No impact
Decision of expert
Certainly significant impacts
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Scientific approach

• Intensity of a deterioration criteria
• Intensity of impacts
• Sensitivity of habitats species against these
  impacts
• Permanence / duration of the impact the effect
• Parameters (examples)
• Qualitative reduction of functionality of
  habitats/structure
• Absolute loss of habitats
• Relative loss of habitats
• Reduction of the number of individuals/ density
• Mortality rate
• Duration of impact/ effect
• Species or habitats natural potential to
  regenerate

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Obvious significant impacts

• An impact is likely to be significant if
• A significant habitat or species will be
  destroyed completely within a Natura 2000 site,
• It will reduce the values of a conservation
  status indicator (A B C),
• The affected habitat or species is already
  unfavourable (C),
• The habitat or species is highly endangered,
• The habitat or species is unique or of high
  nature conservation values, or
• The habitat or species is rare,
• Progress towards achieving conservation
  objectives will be delayed or interrupted,
• The habitat or species can not be restore

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Likely no significant impact

• Only areas with no habitats or species of the
  Directive will be affected
• Only degenerated and preloaded parts with no
  realistic potential of restoration or development
• Habitats or species will only be affected
  temporary and long term deterioration can be
  excluded
• The impact is so small that it can be considered
  as unimportant
• Only non-significant habitats or species will be
  affected

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Tips

• The correct interpretation of significance is
  crucial to assure that the integrity of the site
  is not adversely affected
• The assessment of significance has always to be
  case by case
• Significance can not be measured with one
  threshold only but should be based on different
  qualitative and quantitative criteria
• There is a necessity of competent experts using
  best scientific knowledge
• Transparency objectivity are important for legal
  and planning certainty
• Guidelines can be helpful

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Stage 2 Appropriate assessment

• From Stage 1

Integrity of the site (conservation objectives)
will be affected
NO
YES
Authoristation may be granted
Mitigation measures
Adverse impacts on the integrity of the site
remain
Stage 3
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Mitigation measures compensation measures
Guiding principle keep procedures as short and
inexpensive as possible
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Mitigation
Potential impact on integrity of Natura 2000 sites
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Measures for avoidance
Impacts avoided
The proponent suggests a generous bridging as a
mitigation measure
All individuals are able to continue migrating,
no adverse impact occurs
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Measures for reduction
Impacts reduced (residual impacts not significant)

• residual impact on individuals but not
  significant for the respective bird population on
  site

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Further examples of mitigation measures

• Optimisation of the time schedule for
  construction works (e.g. not during breeding
  seasons)
• Deployment of sparing construction methods (e.g.
  spraying of roads under construction to reduce
  dust immissions for nearby habitats)
• Changes in the dimensioning of a construction
  object (e.g. extension of bridge constructions)
• Mechanisms to reduce implications (e.g.
  plantations for the protection from immissions)

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Stage 3 Assessment of alternative solutions

• From Stage 2

Alternative Solutions exist
YES
NO
Develop alternative solutions And return to Stage
1 or 2
Stage 4
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Stage 4 Assessment of compensatory measures

• From Stage 3

Imperative reason of overriding public interest
YES
NO
A priority habitat or species is affected
NO
YES
Healthy, safety or environmental benefits
Other imperative reasons
Comission information
Comission information
Authorisation may be granted
Project or plan may not proceed
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Compensatory measures, Art. 6(4) - procedure
Compensatory measures are a last resort in order
to be able to implement a plan or project that
has adverse effects on a site.
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A question that arises in the beginning is
compensation actually possible?

• Some habitats have a high value or are almost
  unique and cannot be compensated at all!
• For instance, this often applies to raised bogs
  or pristine woods. Compensatory measures are
  often not feasible !

• Tip Draw up a list of taboos i.e., of natural
  assets for which compensation can definitely
  not be achieved.

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Compensatory measures proposed for a project
should

• What ?have the ability to maintain or enhance
  the overall coherence of Natura 2000
• address, in comparable proportions, the habitats
  and species negatively affected (like for like)
• provide functions comparable to those which had
  justified the selection criteria of the original
  site
• When ?be operational by the time the damage to
  the site is effected
• Where ?concern the same biogeographical region
  and, whenever possible, the same Natura 2000 site

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Types of compensatory measures

• Restoration restoring the habitat to ensure its
  conservation value and compliance with the
  conservation objectives of the site

• Enhancement improving the remaining habitat
  proportional to that which is lost due to the
  project or plan

• Creation creating a new habitat in the site or
  on a new site or through the enlargement of the
  existing site

• Substitution including a habitat in the Natura
  2000 network, which has not been included until
  now

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EC Opinions - Examples
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Relevance of the information and opinion

• The Opinion of the European Commission is not
  legally binding but it cannot be disregarded
  since the Commission can initiate, if necessary,
  appropriate legal action.
• It is advisable to send the information to the
  Commission before realisation of the plan or
  project. The Commission should have the
  possibility to respond in cases where the
  justification of overriding public interest or
  the foreseen compensation measures are not in
  line with the Habitats Directive or the
  Commissions Opinion.

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Information and request of Opinion

• Information of the ECIf the project affects an
  SPA under the Birds Directive only or
  non-priority habitats or species of an SAC under
  the Habitats Directive, Member States are only
  obliged to forward information in relation to the
  project and the compensation measures.
• Opinion of the ECIf priority habitats or species
  will be affected, and no reasons of human health,
  public safety or beneficial consequences on the
  environment can be raised the Member State has to
  ask the Commission for its opinion before the
  authorisation is granted.
• How long does it take to get an Opinion of the
  EC? Minimum 6 months

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Communication of compensatory measures

• The communication of compensatory measures to the
  Commission has to be submitted in a standard
  format (see EC 2000 Annex IV). A new Standard
  Communication Form has been proposed in a study
  promoted by the Commission (ATECMA 2005).
• The information according to Article 6(4) must be
  transmitted through the Permanent Representations
  of each Member State.

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Tips

• Whenever possible, take care that legally binding
  provisions are adopted (e.g. in the approval
  documents).
• In addition, the implementation of the measures
  should also be ensured financially and
  technically (e.g. in the approval decision).
• Start the required monitoring as soon as
  possible.
• Secure control regulations in such a way that you
  are flexible with regard to subsequent
  improvements once the results of monitoring are
  available.
• Think about compensatory measures at an early
  stage
• The authorisation might be granted before the
  Commission will be informed about project and
  compensatory measures without priority habitats
  and species .
• Ask the Commission for its opinion on
  compensation measures for priority habitats and
  species before the authorisation is granted

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The European Court of Justice Natura 200

• The Jurisdiction
• Infringement Procedure Before the ECJ is
  involved, the Commission confers extensively with
  the Member State
• Action of the ECJ
• Either the Commission or a citizen (natural or
  legal person) can send a written application to
  the ECJ.

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Procedure and development of Judgements
every citizen
written application
E.Commission
written warning (European Commission)
any change of the project will be considered
only until the end of the phase reasoned
opinion
C-209/02
C-96/98
Reasoned opinion (European Commission)
Opinion of the Advocat General (EU Court)
Judgement of EU Court
LAW
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Judgements basic requirments
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(No Transcript)
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(No Transcript)
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Plans and Projcets

• The terms plan and project must be interpreted
  extensively (Opinion C-259/98, C-98/03) The use
  of soil for agriculture, forestry and fishing may
  not be excluded in respect of projects (C-98/03)
• The definition of plans and programmes set out
  in the Strategic Environemnt Assessment Directive
  limits the definition to the results of
  particular decision-making procedures (Opinion
  C-127/02)
• Reference for the term project can be made to the
  Environmental Impact Assessment Directive
  (C-127/02)

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Screening

• Systems of abstract advance assessment of
  potential risks neglect the specific
  characteristics of projects.
• Consequently, in merely defining potentially
  damaging operations for each site concerned, the
  risk is run that certain projects which on the
  basis of their specific characteristics are
  likely to have an effect on the site are not
  covered (C-6/04).

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Triggering of the assessment

• Any plan or project has to be assessed which have
  a probability or a risk that the latter will have
  significant effects on the site concerned
  (C127/02).
• The assessment has to be carried out, if it can
  not be excluded that it will have a significant
  impact on the site (C-127/02).
• Appropriate assessment must not be waived because
  the plan or project is not in the scope of the
  rules of an EIA (C-143/02), because of e.g. low
  costs entailed or the particular type of work
  planned (C-259/98)
• Systems of abstract advance assessment of
  potential risks neglect the specific
  characteristics of projects.
• Consequently, in merely defining potentially
  damaging operations for each site concerned, the
  risk is run that certain projects which on the
  basis of their specific characteristics are
  likely to have an effect on the site are not
  covered (C-6/04).

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Approval of plans or projects

• The authorisation of a plan or project must only
  be granted if the authority has ascertained with
  the best scientific knowledge in the field that
  it will not adversely affect the integrity of
  the site concerned (C-127/02).
• The approval can only be granted when it has been
  ascertained that it would not adversely affect
  the integrity of the site (Opinion C-209/02).

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Significance

• The assessment according to Art. 6 (3) has to be
  carried out, if it can not be excluded that it
  will have a significant impact on the site.
• The assessment of the significance of the impact
  must be made in the light inter alia of the
  characteristics and specific environmental
  conditions of the site concerned by such a plan
  or project.
• When a plan or project not directly connected
  with or necessary to the management of a site
  that is likely to undermine the sites
  conservation objectives, it must be considered
  likely to have a significant effect on that site
  (C-127/02).

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Significance

• In the settled case law the following impacts
  have been mentioned as significant
• considerable reduction of the surface area of a
  Natura 2000 site
• disturbances affecting the peaceful nature of an
  area
• modification of the ecological conditions (e.g.
  change in the physical and chemical parameters of
  the site) (C-355/90)
• destruction of the functional links by splitting
  up different zones within the habitat of a
  species
• elimination of, and disturbance to elements of
  habitat
• loss of parts of the feeding and resting areas of
  a species (C-209/02)
• fragmentation of a habitat (Opinion C-209/04)

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Alternative Solutions

• Because the assessment of alternative solutions
  under Directive 85/337/EEC (Environmental Impact
  Assessment Directive) does not necessarily lead
  to consequences it can not substitute the
  obligations to consider alternative solutions
  under Art. 6 (4) of Habitats Directive (Opinion
  C-209/04).
• The competent administration has to ensure that
  all realistic alternatives have been included in
  the Art. 6-assessment (Opinion C-209/04).

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Mitigation and Compensation

• Measures to minimise and avoid harm can be of
  relevance in the assessent whether a significant
  adverse effect is possible (C-127/02)
• If the approval of a plan or project is only
  possible in combination with mitigation measures,
  the respective authority has to prove that the
  measures are capable to ensure the preservation
  of the integrity of a Natura 2000 site (Opinion
  C-206/02)
• Compensation measures have to be taken in
  connection to the concrete impacts on the site
  and have to balance the damages. They have to be
  in place as soon as the damages are realized
  (Opinion C209/04)

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Usful information

• The European Court of Justice http//www.curia.e
  u.int/
• Eur-Lex The portal to European Union Law
  http//europa.eu.int/eur-lex/