Natura 2000 Environmental assessment Anna Liro Impact Assessment according to Art. 6 (3)


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Natura 2000 Environmental assessment

  • Anna Liro


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 site’s 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.



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.



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)



EIA procedure is applied

  • Special Protected Areas (SPAs)

  • Sites of Community Importance (SCIs)

  • Special Areas of Conservation (SACs)

  • Potential Natura 2000 sites (Shadow list)



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



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



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



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



Stage 1: Screening



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



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 site’s 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.



Decision of experts



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 habitat’s natural potential to regenerate


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



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



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



Stage 2: Appropriate assessment

  • From Stage 1



Mitigation measures – compensation measures



Mitigation



Measures for avoidance



Measures for reduction



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)



Stage 3: Assessment of alternative solutions

  • From Stage 2



Stage 4: Assessment of compensatory measures

  • From Stage 3



Compensatory measures, Art. 6(4) - procedure



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 !



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



Types of compensatory measures



EC Opinions - Examples



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 Commission’s Opinion.



Information and request of Opinion

  • Information of the EC If 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 EC If 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



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.



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



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.



Procedure and development of Judgements



Judgements – basic requirments







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)



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).



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).



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).



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 site’s conservation objectives, it must be considered likely to have a significant effect on that site (C-127/02).



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)



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).



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)



Usful information

  • The European Court of Justice: http://www.curia.eu.int/

  • Eur-Lex: The portal to European Union Law: http://europa.eu.int/eur-lex/




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