Natura 2000 Environmental assessment Anna Liro. Impact Assessment according to Art. 6 (3) Any plan or project not directly connected with or necessary

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

Effects of a project or plan

No impact No significant impact Significant impact

Threshold of relevance

Threshold of significance

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

1. Screening

2.Appropriate Assessment

3. Assessment of alternative solutions

4. Assessment of compensatorymeassures

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

Authorisationprocess

Significant impacts arelikely to occur

YES NO

NO YES

Stage S

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

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

Certainly not significant impacts

No impact Decision of expert

Certainly significant impacts

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

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

Mitigation measures

Mitigation measures Art..6(3)

Mitigation measures – compensation measures

Residual impacts

Compensation measures Art. 6(4)Compensation

measures

ReductionProject

Avoidance

Guiding principle: keep procedures as short and inexpensive as possible

Mitigation

Potential impact on integrity of Natura 2000

sites

Impacts avoided

Integrity of the site is

protected

Not significantSignificant

Plan/project ahead

Art. 6(4)

Impacts reduced

Residual impacts

Measures for avoidance

The proponent suggests a generous

bridging as a mitigation measure

Corridor for migration to species of amphibia (stream and littoral)

Impacts avoided

All individuals are able to continue migrating, no adverse impact occurs

Measures for reductionImpacts reduced (residual impacts not

significant)

New road Birds habitat

Car traffic noise has adverse effects on birds (deterioration of the breeding success,

disturbance, etc.)

Noise barriers can reduce the specific impacts

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

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)

Mechanisms to reduce the effect of areas being dissected (e.g. passages for amphibia and small mammals)

Stage 3: Assessment of alternative solutions

From Stage 2

Alternative Solutions exist

YES NO

Develop alternative solutionsAnd return to Stage 1 or 2 Stage 4

Stage 4: Assessment of compensatory measures

From Stage 3

Imperative reason of overriding public interest

YES NO

A priority habitat or species is affected

Healthy, safety or environmental benefits

Other imperative reasons

NO YES

Comission information Comission information

Authorisation may be grantedProject or plan may

not proceed

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.

Overall coherenc

e of Natura 2000

Compensation

Art. 6(3)

Significant impacts

Plan/project shall be carried out anyway

Proof of lack of alternatives not

damaging Natura 2000

Proof of imperative reasons of overriding

public interest

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.

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

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

EC Opinions - Examples

Case Opinion Comments

New industrial and commercial area near Siegen (N-Rhine Westfalia, Germany)

NegativeAdverse effects not justified by imperative reasons of overriding public interest. Unsatisfactory assessment of alternatives.

Prosper Haniel colliery (North-Rhine Westfalia, Germany)

Positive

Proposal of compensatory measures is appropriate to preserve overall coherence of the Natura 2000 network.

Expansion of the Rotterdam harbour(The Netherlands)

Positive

Bothnia railway line(Sweden)

Positive

Motorway A20 (Germany) Positive

La Breña II Reservoir (Spain) Positive

TGV Est – Vallée de la Nied (France)

Positive Compensatory measures include management of 31ha and purchase of 3.5 ha to preserve salt meadows, and restoration of another 20 ha targeting the same habitat. Timely execution of the compensatory measures is set as a condition, and the need to rectify the compensation approach according to the monitoring results is stressed.

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 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

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

Reasoned opinion (European Commission)

written warning (European Commission)

Opinion of the Advocat General (EU Court)

Judgement of EU Court

written applicationevery citizen

E.Commission

= LAW

any change of the project will be considered only until the end of the phase “reasoned opinion“

C-96/98

C-209/02

Judgements – basic requirments

Source paragraph, article, annex etc, number

Periodicity/ date

Content

European Court of Justice

C-252/85 1988-04-27 Protection of Bird species (Commission v France), Art. 5 Birds Directive


C-412/85 1987-09-17 Protection of Bird species (Commission v Germany), Art. 5 and 9 Birds Directive


C-339/87 1990-03-15 Protection of Bird species (Commission v Netherlands), Art. 5, 8 and 9 Birds Directive


C-57/89 1991-02-28 Delimitation of SPAs, overriding public interests (Commission v Germany), Art. 4 Birds Directive


C-157/89 1991-01-17 Restrictions to hunting (Commission v Italy), Art. 7 (4) Birds Directive


C-355/90 1993-08-02 Derogations, Preservation, maintenance and re-establishment of habitats, Delimitation and modification of special protection areas (Commission v Spain), Art. 3 and 4 Birds Directive


C-166/97 1999-03-18 Conservation measures and legal protection (Commission v France), Art. 4 Birds Directive


C-96/98 1999-11-25 Designation of and protection regime for Natura 2000 sites (Commission v France), Art. 4 Birds Directive, Art. 6 Habitats Directive

Opinion of the Advocate General

C-256/98 1999-09-16 Assessment of Plans and Projects (Commission v France), Art. 6 Habitats Directive


C-256/98 2000-04-06 Transposition of Art. 6 (Commission v France), Art. 6 Habitats Directive


C-374/98 200-12-07 Nomination of Special Protection Areas and prevention of deterioration of SPAs (Commission v France), Art. 4 Birds Directive


C-103/00 2002-01-30 System of strict protections of Annex IV species (Commission v Greece), Art. 12 Habitats Directive


C-117/00 2002-06-13 Conservation measures (Commission v Ireland), Art. 3 and 4 (4) Birds Directive, Art. 6 (2) Habitats Directive


C-415/01 2003-02-27 Site designation and demarcation of Sites (Commission v Belgium), Art. 4 Birds Directive


C-127/02 2004-01-29 Assessment of the implications of certain plans or projects for the protected site (Commission v Netherlands), Art. 6 (2) and (3) Habitats Directive


C-127/02 2004-09-24 Assessment of the implications of certain plans or projects for the protected site (Commission v Netherlands), Art. 6 (2) and (3) Habitats Directive


C-143/02 2003-03-20 Triggering of Art. 6 assessment (Commission v Italy), Art. 5, 6 Habitats Directive


C-209/02 2003-11-06 Approval of projects (Commission v Austria), Art. 6 (3) Habitats Directive


C-209/02 2004-01-29 Approval of projects (Commission v Austria), Art. 6 (3) Habitats Directive


C-117/03 2003-01-13 Protective measures (Commission v Italy), Art. 4(5), 6 (3) and 21 Habitats Directive


C-6/04 2005-06-09 Prohibition of deterioration, impact assessment, species protection (Commission v United Kingdom), Art. 6, 12, 14, 15 and 16 Habitats Directive


C-6/04 2005-10-20 Prohibition of deterioration, impact assessment, species protection (Commission v United Kingdom), Art. 6, 12, 14, 15 and 16 Habitats Directive


C-209/04 2005-10-27 Site selection, approval of projects, alternative solutions (Commission v Austria), Art. 4 Birds Directive, Art. 6 Habitats Directive

EC guidance 2000 2000 The provisions of Article 6 of the Habitats Directive

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).

SignificanceIn 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/

Documents

Natura 2000 Environmental assessment Anna Liro. Impact Assessment according to Art. 6 (3) Any plan or project not directly connected with or necessary