EU and Devolved Implementation of the Birds and Habitats Directives: A compilation of relevant cases and conclusions from the Econat 2000 network

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1 EU and Devolved Implementation of the Birds and Habitats Directives: A compilation of relevant cases and conclusions from the Econat 2000 network The Econat2000 network was established by four members organisations from both the nature conservation and economic development sectors in four European States 1. Natural England was the UK lead. The network held a series of topic specific peer exchanges and seminars between 2007 and 2010, bringing together experts and experienced practitioners in the field of development affecting Natura 2000 and European Protected Species (EPS) from across a number of States to compare approaches, identify shared problems and highlight best practice in application of the Birds and Habitats Directives. The was one of the few NGO organisations to engage in the network as a regular attendee of a number of the peer exchanges and the annual seminars where the results of the peer exchanges were reviewed and shared with a wider audience. We are therefore familiar with the outputs of the network and considered that many of these were pertinent to the Defra led review of the implementation of the Birds and Habitats Directives in England, and more specifically, to the examination of EU and devolved administration implementation element of that review. The has therefore compiled those outputs (findings, conclusions, which we consider relevant to this aspect of the review, and present these below under the other five s of the Review Data and Evidence,, ; Communications and awareness; and Capacity Building, cross referenced to the specific s identified in the s 2 nd to the Review (6 February 2012). Due to time constraints, Natural England and other partners have not been consulted on this compilation. Please note that we have included all outputs which we feel are relevant to the application of the Birds and Habitats Directives to development, regardless of the extent to which we agree or disagree with those. The text presented is largely lifted directly from, or an edited version of, that presented and included in the slides for the relevant presentations, all of which are accessible online. Where we have added any additional commentary or explanatory notes, these are shown in square brackets. This compilation has been confined to outputs presented in the presentations of feedback on individual peer exchange findings to the annual Econat 2000 seminars (due to time constraints the presentations given by State representatives during those peer exchanges and associated papers and referenced materials have not been reviewed), but it should be noted that in many cases there are papers, summaries of discussions and links to relevant reference and other supporting materials are also available online via the web links for the relevant s exchanges and seminar (see Annex I). 1 For more information see: 1

2 It should be noted that the findings represent the views, experience and practice of a relatively small number of States, all of whom have had a similar amount of time to the UK to implement the Directives and to develop implementation. Where the term all States is used that refers to all States represented on the relevant peer exchange (as detailed in the table below). Given the interest in devolved administration implementation, wherever possible the UK countries represented are also highlighted. The following abbreviations are used in the table below: Countries: BE Belgium DE Germany EN England FR France NI Northern Ireland NL The Netherlands SC Scotland WA Wales UK United Kingdom Other: AA Appropriate Assessment AEOI Adverse effect on integrity BHD Birds and Habitats Directives CFP Common Fisheries Policy EIA Environmental Impact Assessment FCS favourable conservation status LSE Likely significant effect MPA Marine protected area MS States MSFD Marine Strategy Framework Directive WFD Water Framework Directive 2

3 A compilation of relevant outputs from the Econat2000 network Defra Review General comments General comments General comments Availability of guidance Areas, Areas, Areas, Different national approaches to legal ecological concepts, 2007 NL, DE?? MS share similar aims and similar problems Uncertainty is a recurring in EcoNat peer exchanges Recommendations Future action: Recognition of role of Birds and Habitats Directives as a litmus test for sustainable development Common issues Legislation and deadlines: Same legislation (Birds and Habitats Directives, MSFD), and same deadlines (2012) but differences in and implementation Common issues National legal and policy frameworks: All have multiple, complex and overlapping regulatory systems and multiple competent authorities in the marine environment National legislation: Differences between national legislation do not appear decisive although separate permit systems in the Netherlands can cause extra burdens. More need for guidance than additional legislation Differences between MS: How [the Habitats] Directive is transposed into national legislation ONAT_MarProtAr_PE_0624.pdf ONAT_MarProtAr_PE_0624.pdf ONAT_MarProtAr_PE_0624.pdf ONAT_SpcsProt_PE_0624.pdf 3

4 Estuaries, Linear/ transport infrastructure, Compensatory NL, BE, DE UK (NE), Management planning: Differences on how MS regard management plans and economic development in estuarine Natura 2000 sites: Plans are legally binding in some countries (NL) they are not in others (DE, UK) Conclusions/actions for the future: MS have adopted different approaches, a single approach is not appropriate for all and requirements of Natura 2000 impact assessment are the same in each MS Legal and governance: Different guidelines/requirements for Appropriate Assessment in different MS: Mandatory/nonmandatory/mandatory by case law. Also different systems of permission processes Clarity of separation between Habitats Directive and other legislation (as in UK) considered best practice Differences between MS: Definitions of key terms like breeding place Outstanding issues: Definition of key terms (e.g. breeding and resting places, deliberate, population scale) at what resolution should decisions be made? Similarities between States: Breeding/resting sites are strictly protected ONAT_Estuaries_PE_0624.pdf ONAT_SpcsProt_PE_0624.pdf 00.fr/files/files/seminar_proceedings/EC ONAT_Lin_Inf_PE_0625.pdf ONAT_SpcsProt_PE_0624.pdf ONAT_SpcsProt_PE_0624.pdf ONAT_SpcsProt_PE_0624.pdf 4

5 Embedding value of nature & Compensatory Compensatory Areas, Differences between MS: Weight given to the 3 [species] derogation tests Differences between MS: Large variation in number of derogations issued greatest in UK Compensation: All MS (and EC Guidance) require like for like compensation What if compensation measures do not deliver?: If a developer has done what was asked of them then responsibility must fall on the State (Article 6(2) applies)? but no clear framework for this. Outstanding issues: Influencing EU Nature conservation is primary of the [Habitats] Directive but three derogation tests would be better if weighted to FCS Demand for exclusion of scientific doubt in the context of large information gaps and uncertainties precautionary principle is key in this context but weight given to its application is inconsistent between MS Conclusions/actions for the future: Difficult to apply the rigidity of law with dynamic biological systems Unanswered questions: How to cope with scientific uncertainty when certainty is required? ONAT_SpcsProt_PE_0624.pdf ONAT_SpcsProt_PE_0624.pdf ONAT_SpcsProt_PE_0624.pdf ONAT_SpcsProt_PE_0624.pdf ONAT_MarProtAr_PE_0624.pdf 5

6 & Effective transposition Availability of guidance and mechanisms to share best practice Uncertainty in the Habitats Directive: Precautionary principle is key assessment must be undertaken if effects are uncertain. Safeguards are triggered not by certainty but by the likelihood of effects, and following AA, permission can only be given if it can be concluded, on the best available information, that there would not be an adverse effect on the integrity of a Natura site and subject to Article 6(4). Waddenzee ECJ judgment must refuse if reasonable doubt remains as to the absence of adverse effects Sources of uncertainty Legal issues: Forced to be unreasonably certain about uncertainty; uncertainty (e.g. what is favourable conservation status and how is it defined); legal and judicial uncertainty (e.g. different approached within and between different MS (data requirements, scope and depth of assessment); risk of legal challenge Responses to lack of certainty re legal issues: Robust and transparent decisions; EC level guidance; ECJ case law Principles for dealing with uncertainty: Always use the best available information; use monitoring and research to refine areas of uncertainty but more data does not always equal less uncertainty; always use expert 6

7 Mechanisms to share best practice Different national approaches to legal ecological concepts, 2007 Linear/ transport infrastructure, NL, DE?? UK (NE), FR, PL, NL judgement (and agreement); always apply precautionary principle; be honest about uncertainty and transparent about how it has been addressed. Uncertainty formula: Best data + best experts + transparency re uncertainty = robust to challenge Outstanding issues: Enforcement Purposes in the [Habitats] Directive do not translate well into national law. Case studies and data can improve common practice Sources of uncertainty: Lack of baseline data; lack of understanding of plans and projects (i.e. lack of detail); lack of understanding of response of species/habitats; poor or difficult analysis of cumulative or in combination effects; mitigation/compensation; legal issues Lack of baseline data as a source of uncertainty: Poor understanding of population trends, habitat distribution etc; factors influencing baseline trends; lack of consistent data collection The assessment of conservation status of habitats and species is a shared problem Best practice: Targets for FCS action plans (as in UK and NL) ONAT_SpcsProt_PE_0624.pdf 00.fr/files/files/seminar_proceedings/EC ONAT_Lin_Inf_PE_0625.pdf ONAT_SpcsProt_PE_0624.pdf 7

8 & Clear and robust site conservation s & Clear and robust site conservation s Coastal defence, 2008?? Best practice: Assess and improve conservation status for all species at local/national/eu level (as in DE) Best practice: Comprehensive baseline inventories of all Annex IV species (in NL and DE) Need better monitoring and review Need for flexible solutions to address knowledge gaps Monitoring and evaluation in estuarine environments particularly complex lack of baseline data and control/reference sites is an issue and some MS investing more in this than others Lack of baseline data, understanding of natural processes and research in most suitable parameters for monitoring are issues for all ONAT_SpcsProt_PE_0624.pdf ONAT_SpcsProt_PE_0624.pdf CoastalDefence_PPT.pdf 8

9 Definition of clear and robust conservation s Definition of clear and robust conservation s Estuaries, Estuaries, NL, BE, DE NL, BE, DE Population data: DE well developed; & UK setting up or have partial data sets FR and UK species case studies: Both identify issues with insufficient local population data and monitoring success of mitigation Lack of baseline data Case Study (NL): Ijsselmeer. Serious population declines in waterfowl numbers. Source uncertain as ecosystem still in flux. Issues re how to set conservation s and to identify natural vs man made change Conservation s Shared problems: How to define natural baseline for the assessment of actual site condition; How to make distinction between man made and natural change; Knowledge gaps Conservation s: To define realistic conservation s, reasonable to focus on local level and the specific functions and features of a site need to be underpinned by the best available information Responses to lack of baseline data: Consistent data requirements and methodologies repeatable, comparable and accessible; Good access to data for future researchers and projects; Data hubs e.g. COWRIE (UK) and EUMON and SCALE projects Lack of baseline data Case Study (DE): Offshore wind in the North Sea. Very mobile species ONAT_SpcsProt_PE_0624.pdf ONAT_SpcsProt_PE_0624.pdf ONAT_Estuaries_PE_0624.pdf ONAT_Estuaries_PE_0624.pdf 9

10 & Clear and robust site conservation s Areas, Linear/ transport infrastructure, Recreational activity and Natura 2000, 2010 UK (NE), FR, PL, NL UK (EN, WA, SC, NI), DE, FR, survey data incomplete and expensive to gather. Response collect data and setting up standards for survey and monitoring Sources of uncertainty: Understanding of plans and projects: Scale and nature of impacts; Plans proposals and technologies evolve over time; differences in amount of information required in different States Unanswered questions: How to define what activities/levels of activity are compatible with achieving Natura 2000 conservation s? Sources of uncertainty responses of species/habitats: Uncertainty re impacts of a plan/project species/habitat responses to stimuli; ecosystem function (food webs etc); ecosystem resilience Lack of technical and scientific knowledge re the reactions of habitats and species to infrastructure impacts is a shared problem particularly cumulative impacts and quantification of risks Questions: When is disturbance significant?; How do you identify when an activity has become unsustainable?; How do you link human activity to ecological disturbance in a more based way?; 00.fr/files/files/seminar_proceedings/EC ONAT_Lin_Inf_PE_0625.pdf 00.fr/files/files/seminar_2010/JulieErian _Recreation_exchange.pdf 10

11 Linear/ transport infrastructure, UK (NE), FR, PL, NL Assessment and quantification of effects is a shared problem Use of generic thresholds/criteria for determining levels of effects is problematic Shared difficulties in determining cumulative and in combination effects Sources of uncertainty analysis of cumulative/in combination effect; lack of methodologies for in combination analysis; Uncertainties accumulate alone and in combination... Sources of uncertainty mitigation/compensation: Effectiveness/reliability of mitigation, compensation and management measures especially at sea Avoidance of effects is the best form of mitigation priority for research Where there is uncertainty need for clear monitoring targets and details of additional measures if targets not met Use results of mitigation and compensation to inform evaluation of effects 00.fr/files/files/seminar_proceedings/EC ONAT_Lin_Inf_PE_0625.pdf 11

12 & Case studies Mechanisms to share best practice Compensatory Compensatory Estuaries, Transport infrastructure, 2008 Transport infrastructure, 2008 NL, BE, DE DE, FR, NL DE, FR, NL Guaranteeing delivery of compensation: Monitoring should be flexible to change and linked to action as a system to trigger alterations/additions to existing measures Monitoring compensation projects: Monitoring does not always answer key questions limits application to future projects. MS with a history of and framework for monitoring are at an advantage here [better baselines/relevant experience of monitoring etc] Management planning Conclusions: Management planning is a continual process monitoring and evaluation of implementation is indispensible to adjust and improve if needed Outstanding issues: Species data, monitoring and reporting integrate data source, improve accessibility, enhance quality of EU reporting; knowledge of impact of derogations and mitigation success. Dutch study into effects of noise of main roads and railways on Dutch Natura 2000 areas Case study: German methodological Guidelines for the Assessment of Transport Infrastructure Significantly affecting N2000 sites Conclusions/actions for the future: Scope for improvement within each MS will vary, but helped by sharing experiences and exchanging ideas ONAT_Estuaries_PE_0624.pdf ONAT_SpcsProt_PE_0624.pdf _Transport_PPT.pdf _Transport_PPT.pdf ONAT_SpcsProt_PE_0624.pdf 12

13 Establishing a coherent protected area network Establishing a coherent protected area network & Strategic planning Mechanisms to share best practice Establishing a coherent protected area network Establishing a coherent protected area network Areas, Areas, Areas, Areas, Areas, Conclusions/actions for the future: MS need flexibility to enable them to effectively deliver the of the [Habitats] Directive (i.e. nature conservation). Common issues Cross boundary issues: All have cross boundary site identification and designation issues Recommendations Future action: Marine spatial planning is a cross boundary geopolitical issue the sea and its species and habitats do not recognise national boundaries Recommendations Future action: Need to learn from DE/NE/DK experience of international cooperation in the management of the Waddenzee Common issues and planning concerns: 2012 deadline [for designation of MPAs] time is running out and all started to late Common issues and planning concerns: FR and UK have Natura 2000 sites and other MPAs (NL has Natura 2000 only) processes for site identification of Natura 2000 and other MPAs are run in parallel but are different. Natura 2000 is Government led and science based; other MPAs are stakeholder led and may take account of socio economic ONAT_SpcsProt_PE_0624.pdf ONAT_MarProtAr_PE_0624.pdf ONAT_MarProtAr_PE_0624.pdf ONAT_MarProtAr_PE_0624.pdf ONAT_MarProtAr_PE_0624.pdf ONAT_MarProtAr_PE_0624.pdf 13

14 Establishing a coherent protected area network & Strategic planning Establishing a coherent protected area network & Strategic planning Establishing a coherent protected area network Establishing a coherent protected area network Strategic planning Areas, Areas, Areas, Areas, Coastal defence, 2008?? Common issues and planning concerns: Clear MPA boundaries and important for and should be set within marine spatial planning framework timing is key and there is a lot going on at sea Conclusion: Interaction of MPAs, marine spatial planning and development vary between MS: In NL most advanced in terms of marine spatial planning (driven by Natura 2000, renewables and sand extraction for beach recharge). In UK main driver is development of renewables limited progress with Natura 2000 and spatial planning, if implemented, likely to post date most/all MPAs and current development proposals; In FR main driver is Natura 2000, marine spatial planning is an but no delivery mechanisms other sectoral plans exist (e.g. for windfarms) but are not integrated Inconsistent approaches to site identification (e.g. Dogger Bank) Common issues and planning concerns: Focus on designation concern re how long it will be before sites are effectively managed Using a strategic approach helps ONAT_MarProtAr_PE_0624.pdf ONAT_MarProtAr_PE_0624.pdf ONAT_MarProtAr_PE_0624.pdf ONAT_MarProtAr_PE_0624.pdf CoastalDefence_PPT.pdf 14

15 Strategic planning Strategic planning Strategic planning Strategic planning Estuaries, Estuaries, Water policy and management and Natura 2000, 2010 Water policy and management and Natura 2000, 2010 NL, BE, DE NL, BE, DE FR, NL, DE FR, NL, DE Sediment management: Discussions of dredging as a plan or project vs an ongoing operation [since clarified as a plan/project by case law], and management of dredging using integrated management plans vs dredging plans. UK Maintenance Dredging Protocol case study presented as good practice example Sediment management: Good potential synergies between sediment management, nature conservation, responding to climate change and flood risk management Synergies for implementation of the Birds and Habitats Directives and the Water Framework Directive: Focus on aquatic ecosystems and aim to improve status (FCS/good ecological status); common opportunities for new hydro and morphological processes in rivers and associated habitats; common s for river restoration, flood risk management, water retention and sustainable land use; common monitoring for some organisms and biological characteristics. Considerable synergies at the strategic level but then in terms of management the devil is in the detail. Problems and conflicts between the BHD, WFD and other factors: Different planning instruments/schedules for s and implementation; differences in scale/dimensions/homogeneity of river water bodies (WFD) and Natura 2000 sites; ONAT_Estuaries_PE_0624.pdf ONAT_Estuaries_PE_0624.pdf 00.fr/files/files/seminar_2010/NNA_Reh klau_10_06_16_natura2000waterman agement.pdf 00.fr/files/files/seminar_2010/NNA_Reh klau_10_06_16_natura2000waterman agement.pdf 15

16 Strategic planning Water policy and management and Natura 2000, 2010 Availability of guidance FR, NL, DE Good practice in implementing BHD and WFD: Including requirements and measures for water dependant Natura sites in River Basin Management Plans; focussing Natura 2000 management planning on waterdependent Natura sites; Conclusions/actions for the future: Consider protected species early in the planning process Existing work on uncertainty: Oxford Principles international workshop Oxford, UK, section on Uncertainty and Impact significance 2 and Natural England guidance on uncertainty in plans Best practice: Proportionality/risk management in decision making Differences between MS: Continuing Ecological Functionality (CEF) [for species] embedded to a different extent in planning process (in DE is integral) Best practice: More use of Continuing Ecological Functionality (CEF) to balance ongoing activities with species protection desired by all Proportionality: Balance burden with impact on species. Ensure ongoing activities remain compliant with [the Habitats] Directive 00.fr/files/files/seminar_2010/NNA_Reh klau_10_06_16_natura2000waterman agement.pdf ONAT_SpcsProt_PE_0624.pdf ONAT_SpcsProt_PE_0624.pdf ONAT_SpcsProt_PE_0624.pdf ONAT_SpcsProt_PE_0624.pdf ONAT_SpcsProt_PE_0624.pdf

17 Mechanisms to share best practice Mechanisms to share best practice Thorough understanding of process & Case Studies (London Gateway) Areas, Recommendations Future action: Management of fisheries impacts on Natura 2000 is a major challenge most widespread and potentially damaging activity and the hardest to manage in terms of nature conservation impacts issues with compatibility with CFP and issues outside of 12nm). Need to learn from novel approaches (e.g. selfregulation of fisheries in French Mediterranean and voluntary accreditation of Natura 2000 fisheries in the UK Best practice: Exemption policies for low risk activities to reduce regulatory burden (as in UK and NL) Responses to lack of certainty re plans and projects: For projects there is no excuse more detail required. For plans when is it appropriate to devolve detailed assessment? When cannot reasonably assess effects of Natura 2000 AND assessment of the lower tier plan can change the proposal if effects on integrity identified AND assessment of the lower plan required by Government Responses to lack of certainty re plans and projects: Create rules/thresholds (reduced uncertainty...or false certainty?). E.g. speciesspecific thresholds for noise in the marine environment based on research (DE); danger of using human health standards for air pollution impacts on fen [habitat] (Bavaria, DE); Assume ONAT_MarProtAr_PE_0624.pdf ONAT_SpcsProt_PE_0624.pdf 17

18 & Case Studies (London Gateway) Different national approaches to legal ecological concepts, 2007 Thorough understanding of process Thorough understanding of process Different national approaches to legal ecological concepts, 2007 Different national approaches to legal ecological concepts, 2007 NL, DE?? NL, DE?? NL, DE?? sensible worst case scenario for impacts; eliminate/reduce through data collection/research ; monitoring of current plans /projects is key to informing future assessments resisted but links to better regulation; monitor but monitoring is not mitigation need for feedback loops to action (e.g. phased implementation of London Array windfarm (UK)). Responses to lack of certainty re responses of species/habitats: Assume sensible worst case scenario for impacts; use/develop guidance based on best available information; analyse monitoring to reduce future uncertainty LSE: Finding out whether significant effects can be excluded (NL: likely turns in practice into prove ) LSE: Legitimate and useful to take rough and ready approach: expert opinion sufficient not an enormous amount of paper LSE: Possible to undertake a more detailed assessment at this stage to rule out likely effects but if there is doubt an Appropriate Assessment required in any case All MS precautionary at the LSE stage less consistent at AEOI stage

19 Thorough understanding of process Different national approaches to legal ecological concepts, 2007 Linear/ transport infrastructure, Areas, Areas, Thorough understanding of process Thorough understanding of process NL, DE?? UK (NE), FR, PL, NL EIA and AA procedures: In most countries the procedures are linked most common is inclusion of the AA as a separate chapter in the EIA [report ](NL and UK). Full integration of EIA and AA in Spain although legality of this approach questioned Time and costs of Appropriate Assessments is a shared problem Common issues Cross boundary issues: Diffuse pollution Common issues Cross boundary issues: Incombination assessments (e.g. North Sea windfarms) Sources of uncertainty analysis of cumulative/in combination effects: Uncertainty re scope of assessment what s in and what s out Responses to lack of certainty re analysis of cumulative/in combination effects: Risk based approach (e.g. Screening of impacts based on traffic light system, NL Province of Noord Holland Case study on analysis of cumulative in combination effects (UK): UK Maintenance Dredging Protocol allows effects of maintenance dredging to be assessed without disproportionate burden on those who commission or approve dredging operations. Does not remove the need for case by case 00.fr/files/files/seminar_proceedings/EC ONAT_Lin_Inf_PE_0625.pdf ONAT_MarProtAr_PE_0624.pdf ONAT_MarProtAr_PE_0624.pdf 19

20 Thorough understanding of process Compensatory Constructive by all parties & Case Studies Constructive by all parties Thorough understanding of process & Clear and robust Site Conservation Objectives Thorough understanding of process Different national approaches to legal ecological concepts, 2007 Compensatory NL, DE?? assessment but provides a streamlined process acts as a rolling in combination assessment. Hierarchy of measures: Avoid mitigate compensate Similarities between States: Importance of mitigation and compensation Best practice: Compensation/mitigation undertaken early/in advance of a project (as in DE) Types of mitigation used in different States are broadly similar Similarities between States: Best practice/avoidance is favoured to reduce need for derogations Different levels of weight attached to consideration of and research to inform alternatives for mitigation AEOI in small cases : Temporary effect are not necessarily small effects Importance of conservation s Art 6(4) tests 1). Alternative [solutions]; 2). IROPI: 3) Compensation measures the order counts! ONAT_SpcsProt_PE_0624.pdf ONAT_SpcsProt_PE_0624.pdf ONAT_SpcsProt_PE_0624.pdf 20

21 Compensatory Different national approaches to legal ecological concepts, 2007 Coastal defence, 2008 Linear/ transport infrastructure, Constructive by all parties Constructive by all parties NL, DE???? UK (NE), FR, PL, NL Constructive by all parties Consistency of approach to Art 6(4) tests and compensation requirements is clearly an issue Article 6(4) tests: Differences in approaches to alternative [solutions] test Alternative [solutions] not fully examined The appropriate evaluation of alternative solutions is a shared problem Alternative solutions are considered at the end of the Habitats Directive process (Art 6(4)) in the interests of all players to consider at the start consideration of alternative [solutions] should be built into Habitats Directive process at the earliest possible stage Case study: Western Scheldt deepening project (NL): Impact assessment included research into alternative solutions Lack of clarity re what constitutes IROPI need for consistency Early agreement re effects on site integrity and (where appropriate under Art 6(4)) compensation measures helps to avoid delays and conflict CoastalDefence_PPT.pdf 00.fr/files/files/seminar_proceedings/EC ONAT_Lin_Inf_PE_0625.pdf 21

22 Constructive by all parties & Case Studies Constructive by all parties & Case Studies Transport infrastructure, 2008 Linear/ transport infrastructure, DE, FR, NL UK (NE), FR, PL, NL Estuaries, NL, BE, DE Compensatory Case study: Immingham Outer Harbour (UK): Early by all parties and agreement re nature and scale of effects. Legal agreement set agreed compensation and avoided Public Inquiry Case study: Dibden Port (UK): Lack of agreement re nature and scale of effects. Application refused for reasons including adverse effects and lack of adequate compensation German Court case: Motorway at Halle: Consent annulled due to scientific doubt re absence of adverse effects, success of mitigation measures must be demonstrated, compensation measures could not be considered because of uncertainty re success The definition and implementation of compensation measures is a shared problem Projects: All countries struggle with like for like compensation (little or no room within or outside Natura 2000 sites) The level of inconsistencies between MS in relation to compensation requirements suggests a strong need for EU guidance or input Recommendation of need for an EC Register of all Natura 2000 compensation cases including features affected, article 6(4) tests and compensation ratios and timing etc _Transport_PPT.pdf 00.fr/files/files/seminar_proceedings/EC ONAT_Lin_Inf_PE_0625.pdf ONAT_Estuaries_PE_0624.pdf 22

23 Compensatory Compensatory Compensatory Compensatory Best practice: Compensation for habitat losses should be local, newly created from poor [habitat] and should exceed area lost, unless quality is improved (as in UK and DE) Different approaches to the location of compensatory measures (inside vs outside site boundaries) [links to initial approach to drawing boundaries tight vs buffered] Compensation outside of Natura 2000 preferred Location of compensation: All MS consider that both biotic and abiotic aspects are important and commendation must be delivered within the same biogeographic region to maintain coherence Location of compensation: In the UK compensation generally not inside a Natura 2000 site (the Natura 2000 sites have very contoured boundaries); in other MS location of compensation depends on the boundaries of the Natura 2000 site (broad or strictly defined around features) and whether or not there is scope for improvement within the sites Location of compensation: Good practice Locate measures in a way relevant/consistent with existing nature conservation networks Location of compensation: Good practice Demonstrate additionality: Compensation can occur inside a Natura 2000 site only of there is scope for improvement [i.e. improvements in ONAT_SpcsProt_PE_0624.pdf 23

24 Compensatory Compensatory Compensatory Compensatory Compensatory Compensatory condition over and above favourable conservation status] Timing of compensation: All MS distinguish between the time of authorisation and the time of impact Different approaches to risk and uncertainty in relation to compensation Timing of compensation: Time lags [loss to compensation] determine the ratio and duration of the developers responsibilities Compensation ratios and equivalence: Ratios used as a tool for equivalence (including time lags and uncertainty) DE Schleswig Holsten case study (Natterjack Toad: New habitat created, breeding success confirmed and adults captured from old ponds prior to construction Compensation ratios and equivalence: Ratios should depend on whether compensation measures are through creation, restoration or protection (if the latter is accepted) Compensation ratios and equivalence: Ratios should be justified on the basis of ecological measurements Compensation ratios and equivalence: In FR large ratios used as a deterrent to development Responses to lack of certainty re mitigation/compensation: Over mitigate/compensate; development of good ONAT_SpcsProt_PE_0624.pdf 24

25 Estuaries, NL, BE, DE Compensatory Constructive by all parties Compensatory practice guidance; monitoring and feedback loop to action; monitoring and analysis of measures to inform future developments. Examples: London Gateway (UK) Compensation for deep water terminal on Thames based on worst case scenario effects; Ports compensation ratios (UK) Standard ratio of 3:1 [for managed realignment] reviewed on a case by case basis in context of time lag, uncertainty, temporary vs permanent effects Projects: Differences in extent of compensation and risk management between the 3 MS: UK often 3:1, DE and NL often 1:1 but with monitoring programmes to safeguard sufficiency of compensation measures Case Study (FR): Highway A65 compensation ratios for different habitats and species affected varied from 1:1 to 10:1 Compensatory measures should include allowances for uncertainty (replacement ratios of >1:1 are most precautionary) Case Study: Voordelta (NL: Article 6(4) case compensation was 10% habitat quality improvement over area 10X that lost Case Study (UK): Port of Bristol Deep Sea Container Terminal All parties agreed adverse effects and legal agreement secured: 1.5:1 replacement ration for compensation accepted as losses will be temporary compensation to be fully functional prior to loss ONAT_Estuaries_PE_0624.pdf 25

26 Linear/ transport infrastructure, Compensatory Compensatory Case Studies Compensatory Compensatory Establishing a coherent protected area network & Effective transposition Compensatory UK (NE), FR, PL, NL Case Study: Motorway BAB (DE?): Compensatory measures ratios between 1:2 and 1:3, inside and outside of Natura 2000, development of measures prior to construction Case Study (DE): Compensation for loss of alluvial forest for motorway 643. Recreation of a former river branch to develop floodplain woodland Ration of 3:1 to mitigate time lag effects for development of new habitat Compensation: Different s between MS in terms of targets and measurements of compensation provision (e.g. target for provision of habitat for species vs target for number of individuals of a species) Good practice: In the UK feasibility of compensation measures must be demonstrated before authorisation is given Guaranteeing delivery of compensation: Approaches between MS differ from in principle agreement only to purchased land and proven feasibility. Best practice is to guarantee delivery of compensation as a prerequisite for authorisation (e.g. UK approach) Compensation sites in the long term: EC Art 6(4) guidance that compensation should be designated all MS agree but do nothing. Designation is essential to long term protection 00.fr/files/files/seminar_proceedings/EC ONAT_Lin_Inf_PE_0625.pdf 26

27 of legislation & Case Studies Compensatory Habitat banking, 2008 Habitat banking, 2008 Habitat banking, 2008 Compensatory Compensatory Compensatory FR, DE,? FR, DE,? FR, DE,? Compensation sites in the long term: Need clarity re who is responsible for management and maintaining conservation status Piecemeal approach to compensation unsustainable and costly Advantages of habitat banking: Timing; ecosystem integrity; economies of scale and strategic Opposition to habitat banking: Reproducibility of unique habitats; aiding development by facilitating compensation of impacts; Future delivery of compensation habitat banking: Difficult approach and may not be effective in majority of cases for Natura 2000 concerns re green washing, commercialisation, creating a licence to develop but advantages re zero time lag and reduced uncertainty. Requires strict s, monitoring and state control of operators Compensation case study (FR): Crau Natural Offset creation restoration of herb rich pasture to support little bustard as habitat bank for IROPI developments. First habitat banking experiment in France strict rules apply (e.g. does not compensate for loss of virgin Coussouls habitat only birds Other examples of habitat banking: Exists in DE and NL but not specifically for Natura UK HabitatBanking_PPT.pdf HabitatBanking_PPT.pdf HabitatBanking_PPT.pdf 27

28 Compensatory Availability of guidance and mechanisms to share best practice Communication & awareness Availability of guidance and mechanisms to share best practice Constructive by all parties Different national approaches to legal ecological concepts, 2007 Compensatory NL, DE?? strategic approach to compensation for flood risk management. [Group compiled a bibliography of useful references see nsation2010nimes] Differences between MS: Policing & enforcement variation in level/priority/commitment to enforce wildlife crimes Outstanding issues: Enforcement. Difficulties in policing, proving non compliance and harm. Current fines are not a deterrent Best practice: Enforcement: Power to stop projects is very effective (as in FR) Guidance and sharing best practice as an aid to efficiency and consistency Guidance on quality matters cannot be too detailed: coherence of the network seems a useful starting point Legal and governance: Different levels/functions of NGOs in different MS necessity of involvement at an early stage ONAT_SpcsProt_PE_0624.pdf ONAT_SpcsProt_PE_0624.pdf chttp://seminar.econat.n2000.fr/sites/d efault/files/files/seminar_proceedings/e CONAT_SpcsProt_PE_0624.pdf 28

29 Communication & awareness Communication & awareness Communication & awareness Constructive by all parties Constructive by all parties Areas, Areas, Areas, Common issues Other users and stakeholders: Need and desire to regulate activities at sea which have impacts on Natura 2000 and potentially stricter regulation of current activities (e.g. fishing and development); regulation of the previously unregulated (e.g. recreational activities); can result in focussed opposition (vocal minority vs silent majority?) Conclusion Communication with stakeholders: Transparency and expectation management is key avoid need for back pedalling (in NL began with presumption against development in Natura 2000 but may change to allow some in UK and FR created expectation that designation would not impact ongoing activities and now realising this position is untenable ECJ rulings and of impacts) Conclusion Communication with stakeholders: Need cooperation and agreement re site management measures, consistent approaches to Appropriate Assessment, mitigation and compensation (guidance and informationsharing), proper (and consistent) cumulative and in combination assessment of plans and projects (e.g. windfarms in the North Sea), and effective wider measures to protect marine sites and environment (e.g. diffuse pollution, MSFD, WFD etc) ONAT_MarProtAr_PE_0624.pdf ONAT_MarProtAr_PE_0624.pdf ONAT_MarProtAr_PE_0624.pdf 29

30 Communication & awareness Capacity building Capacity building Capacity building Capacity building Capacity building Capacity building Constructive by all parties Adequate capacity and expertise Adequate capacity and expertise Adequate capacity and expertise & Constructive by all parties Adequate capacity and expertise & Constructive by all parties Constructive by all parties Adequate capacity and expertise Water policy and management and Natura 2000, 2010 FR, NL, DE Good practice in implementing BHD and WFD: Combining the cultures of the different responsible administrations A single independent agency with responsibility to guide and advise the Habitats Directive process is highly desirable Different agencies with different functions (e.g. planners, advisory, derogation authority (regulator). Is a single agency better? Different levels of statutory by conservation agencies in the assessment process, differing degrees of of NGOs but MS often reach similar conclusions Differing levels of stakeholder in the Habitats Directive process. Stakeholder most effective when it begins early in the process, aids (and is driver for) transparency in the Habitats Directive process; draws in additional expertise and reduces conflicts. Engagement of NGOs considered best practice Early dialogue in agreeing impacts benefits all players Differences between MS: Planning systems and planners awareness of influence derogation need, and in DE this avoids many derogations 00.fr/files/files/seminar_2010/NNA_Reh klau_10_06_16_natura2000waterman agement.pdf ONAT_SpcsProt_PE_0624.pdf 30

31 Capacity building Capacity building Capacity building Capacity building Capacity building Capacity building Capacity building Adequate capacity and expertise & Constructive by all parties Adequate capacity and expertise & Constructive by all parties Adequate capacity and expertise Adequate capacity and expertise Adequate capacity and expertise Adequate capacity and expertise Linear/ transport infrastructure, UK (NE), FR, PL, NL Best practice: Integration (as in DE) or close working between planners and derogation authority is essential Best practice: In DE, Planning authorities promote, as the norm, measures to improve conservation status Best practice: Keep policing and derogating authorities separate Confusion amongst developers and consultancies re definitions of mitigation and compensation is a shared problem Differences between MS: Level of resources for species protection varies Outstanding issues: Species data, monitoring and reporting Shortage of resources Similarities between States: Resource constraints (for population data, derogation assessment, compliance checks and enforcement) ONAT_SpcsProt_PE_0624.pdf ONAT_SpcsProt_PE_0624.pdf ONAT_SpcsProt_PE_0624.pdf 00.fr/files/files/seminar_proceedings/EC ONAT_Lin_Inf_PE_0625.pdf ONAT_SpcsProt_PE_0624.pdf ONAT_SpcsProt_PE_0624.pdf ONAT_SpcsProt_PE_0624.pdf 31

32 Capacity building Capacity building Adequate capacity and expertise Adequate capacity and expertise Water policy and management and Natura 2000, 2010 FR, NL, DE Good practice in implementing BHD and WFD: Both rivers and lakes and the Natura 2000 site network are the backbone of European natural heritage. This cannot be conserved and developed in a sustainable way without providing adequate human and financial resources Differences between MS: Derogation decision response time varies from 6 weeks to 6 months 00.fr/files/files/seminar_2010/NNA_Reh klau_10_06_16_natura2000waterman agement.pdf ONAT_SpcsProt_PE_0624.pdf, 10 February

33 Appendix I: Web links for Econat2000 peer exchange and seminar outputs. Econat 2007 Econat 2008 Econat Econat 2010 Seminar proceedings (including peer exchange presentations) can be downloaded from Seminar proceedings (including peer exchange feedback presentations, summaries and papers) can be accessed via: 00.fr/files/files/seminar_2008/ECONAT_08_Seminar_Proceedings.pdf Details of the peer exchanges (including the individual State presentations to those exchanges) can be accessed via: Seminar proceedings (including peer exchange feedback presentations and other references) can be accessed via: Details of the peer exchanges (including the individual State presentations to those exchanges) can be accessed via: Seminar proceedings (including peer exchange feedback presentations and other references) can be accessed via: 33