2. Natura 2000 Impact Assessment

. Natura 2000 Impact Assessment

2. Natura 2000 Impact Assessment 2.1 Background, Objectives and Legal Principles The European Union s "Flora-Fauna-Habitat Directive" (Council Directive 92/43/EEC FFH-CD) of 1992 aims to advance the goal of preserving biological diversity. Measures to achieve this include a Europe-wide network of protection sites. The focus is on specific habitats and specific flora and fauna which are of European significance. The NATURA 2000 Network includes both Sites of Community Importance as per the FFH council directive and also European Bird Sanctuaries as defined by the Birds Directive (Art. 10(1) Nos. 5 and 6 Federal Nature Conservation Act). The network should be coherent throughout Europe (Art. 3 FFH-CD). In place of coherence the German Federal Nature Conservation Act also refers to cohesion and continuity ; the Berlin Nature Conservation Law (BNCL) refers to continuity of the network. In addition to a spatial-functional network it should also be ensured that NATURA 2000 habitats and flora and fauna are represented. The relevant conservation targets must be defined in order to protect and/or restore the favourable conservation status of an area. All plans, measures, changes or disturbances which could give rise to significant impairments to those components of the site that are of a critical interest for relevant conservation objectives are inadmissible (Deterioration Ban, Sect. 22b(5) and Sect. 16(2) BNCL, Art. 6(2) FFH-CD). Assessing impact, also known as the Natura 2000 Impact Assessment (NIA 2000), is intended to ensure that plans and projects do not give rise to impairments to the conservation objectives for these sites. In 1998 Germany put the European directives into national legislation by means of the Federal Nature Conservation Act (FNCA) and in 2003 Berlin put them into state legislation by means of the Berlin Nature Conservation Law. Annex 4.3 gives a tabular overview of the statutory sources. Berlin has registered 15 Natura 2000 sites, which cover just over 7% of the federal state s entire area. 2.2 Scope of Application A NIA 2000 is required whenever a project subject to approval or a plan being compiled could give rise to significant impairments to those components of the site that are of a critical interest for relevant conservation objectives of a Natura 2000 site. An impact assessment is also required if such impairments could be caused by the effects of the project or plan concerned in combination with other plans or measures (Sect. 16(2) FNCA). The scope of application is defined by means of the definition of the terms projects and plans in the Federal Nature Conservation Act (Sect. 10(1) Nos. 11 and 12 FNCA) and Sect. 35 FNCA (see Chap. 2.4). A NIA 2000 is required in order to clarify whether a project or plan falls under these definitions and could thus possibly give rise to significant impairments. 26 Environmental Assessment Berlin s Guide for Urban and Landscape Planning

Europe-wide conservation Natura 2000 sites in Berlin Information on the implementation of the EU directives on Fauna-Flora-Habitat (FFH) and bird protection Bird sanctuary Special Protected Area (SPA) FFH area Tegeler Fließtal Schloßpark Buch SPA and FFH areas Forest and natural park area Baumberge Spandauer Forst Tegel Waterworks Falkenberger Rieselfelder Water Zitadelle Spandau Fort Hahneberg Fließwiese Ruhleben Grunewald Pfaueninsel Western Düppeler Forst Friedrichshagen Waterworks Müggelspree/ Müggelsee Teufelsseemoor Müggelspree Wilhelmshagen- Woltersdorfer Dünenzug Fig. 13 Environmental Assessment Berlin s Guide for Urban and Landscape Planning 27

4 In its judgement of 10 January 2006, the European Court of Justice ruled that the FNCA did not sufficiently implement the scope of application of the NIA 2000 assessment obligation. 2.3 Procedure and Participation In the case of NIA 2000 s of projects, the procedural stages and thus also the participation of other government authorities; other representatives of public concern and the general public conform to the relevant authorisation procedures, e.g. a planning approval procedure subject to rail law. In the case of plans and programmes in accordance with Sect. 35, 1 st sentence, No. 2 FNCA, a NIA 2000 entails the execution of a Strategic Environmental Impact Assessment (Sect. 14c German Environmental Impact Assessment Act EIA Act). This legislation aims to achieve conformity of the NIA 2000 with the procedural standards for EIA s (SANGENSTEDT 2001). The authority which is responsible for deciding on approval of a project or plan is first obliged to inform the supreme authority for conservation and landscape management without delay regarding this matter (Sect. 17(1) BNCL).The latter carries out the preliminary NIA 2000 and reaches a decision on whether a NIA 2000 is required. Carrying out of any further procedures relating to the NIA 2000 lies mainly within the scope of responsibility of the authority conducting the relevant planning approval or approval process. The officially recognised conservation associations in Berlin are given an opportunity to inspect papers relating to, and comment on, the matter in hand (Sect. 39a BNCL). In certain cases, the European Commission must be involved and/or informed (see Chapters 2.8 and 2.9). 2.4 Preliminary NIA 2000 At the outset of a procedure the following questions are used to clarify whether a NIA 2000 is required ( preliminary assessment or screening ): 1. Does the case involve a plan or project as defined by Sect. 10 FNCA? 2. Could the project/plan in combination with others give rise to significant impairments on a protected site and/or the conservation objectives for a Natura 2000 site? (Chap. 2.6). The term project is defined in broad terms in Sect. 10 of the Federal Nature Conservation Act; projects are thus: a) projects and measures within a site of Community importance or a European bird sanctuary, insofar as they require a decision by an authority or a notification to an authority or are being conducted by a government authority, b) interventions in nature and landscape within the meaning of Sect. 18 FNCA, insofar as they require a decision by an authority or a notification to an authority or are being conducted by a government authority and c) facilities subject to authorisation under the Federal Immission Control Act and water uses which require a permit or a licence under the Federal Water Act, insofar as they, either individually or in combination with other projects or plans, have a significant impact on a site of Community importance or a European bird sanctuary (Sect. 10(1) No. 11 FNCA) 4. 28 Environmental Assessment Berlin s Guide for Urban and Landscape Planning

The term plans includes the following in the sense of the Federal Nature Conservation Act: Plans and decisions from prior procedures which have to be complied with or taken into account in official decisions insofar as they are likely, either individually or in combination with other plans or projects, to have a significant impact on a site of Community importance or a European bird sanctuary (Sect. 10(1) No. 12 FNCA). The obligation to assess covers, for e.g.: 1. Route determinations of federal highways and federal waterways as well as 2. Regional development plans and regional plans covering the state of Berlin. These include the States of Berlin-Brandenburg Development Programme and the development plans of the Laender (Chap. 3.4). 3. Land development plans und development plans (Chap. 3.4). An impact assessment is not required: if the plan or project concerned is designed to implement the objectives of the FFH-CD or the Birds Council Directive (see Sect. 16 BNCL and Sect. 10 FNCA). in the case of building projects in areas with development plans under Sect. 30 of the Federal Building Code and during the plan proposal procedure under Sect. 33 Federal Building Code (Sect. 37(1) FNCA). Fig. 14: Procedural steps of the FFH impact assessment under Sect. 34 and 35 FNCA 1. Preliminary impact assessment Criteria: plan or project as per Sect. 10(1) FNCA In combination with other projects of plans significant impact on a Natura 2000 site regarding its protection purposes or for the conservation objectives of key elements possible Question: Are the preconditions fulfilled which make a NIA 2000 necessary? Yes NIA 2000 required 2. Natura 2000 Impact Assessment Criteria: Relevant impact of the project or plan Significance of the changes to be expected Question: Can the project or plan give rise to significant impairments on the conservation objectives for the components of a critical interest for a NATURA 2000 site? Exceptional case 3. Assessment of exceptional circumstances Yes No No NIA 2000 not required Approval of the project and/or passing of the plan possible Inadmissibility of the project or plan Criteria: no reasonable, acceptable alternatives imperative reasons of a primarily public interest measures to preserve coherence possible In the case of significant impairments to key habitats or species: limited exceptional reason under Sect. 16(4) BNCL As applicable: statement by the Commission Question: Do the circumstances required for an exceptional approval exist? No Inadmissibility of the project or plan Yes Approval of the project or passing of the plan possible Environmental Assessment Berlin s Guide for Urban and Landscape Planning 29

Fig. 15: New construction of a cycle path in a NATURA 2000 site (FFH site Müggelspree, Müggelsee) As a result of the preliminary assessment, considerable impairments could be avoided due to a compatible cycle track arrangement and appropriate construction of the paths. If, as a matter of principle, the plan or programme falls within the scope of application of the NIA 2000, it must be clarified whether individual cases in combination with other plans or projects could result in a significant effects on a Natura 2000 site (relevance assessment). During the preliminary assessment the effect of possible combinations is only considered in general terms. The more information on the proposed project or plan (and thus its impact factors) which the supreme authority for conservation and landscape management has, the easier it is for it answer the question of relevance. In the interest of a prompt decision the objectives and specifications of the plan and/or the objectives and the technical design of the project on the part of the project proponent (or the planning office/consultant) should thus be described as concretely and clearly as possible. It is recommended that, in conjunction with the supreme authority for conservation and landscape management, options be sought to modify the project or plan at this stage of the planning process in order to make it possible to exclude any significant impairments to Natura 2000 sites (Figure 15). Should this be successful the concluding result of the preliminary assessment will be that no further steps in the NIA 2000 process are required. If significant impairments cannot be excluded, then a NIA 2000 will be required. The result of the preliminary assessment must be documented in a clear and transparent manner. 2.5 Specifying the Scope of Assessment With regard to the assessment content of the NIA 2000 study it should be clarified (if necessary in a scoping meeting), which impact factors of a project or plan are relevant, which other plans and projects must be taken into consideration due to a possible cumulative impact (Sect. 16(2) BNCL), which types of habitat as well as species and its habitats could be affected and what impact, measured according to the conservation objectives, could occur in Natura 2000 sites, how the area under assessment should be delimited (including consideration of areas for any coherence protection measures which may be required), if additional assessment is required and if specialist experts should be consulted, which assessment methods should be used. Furthermore an assessment should be carried out regarding whether an alternative assessment will be necessary. In such a case it is recommended that the alternatives to be assessed are taken into consideration to the fullest extent possible. Specifying of the scope of assessment takes place in consultation with the supreme authority for conservation and landscape management and, if required, with other parties involved. Should an EIA or a strategic EIA be required for a project or plan, it is advised that a joint scoping meeting and documentation of the agreements reached be carried out (Chap. 1). 30 Environmental Assessment Berlin s Guide for Urban and Landscape Planning

2.6 NIA 2000 Study The NIA 2000 study is the technical cornerstone of the NIA 2000. The structure of the NIA 2000 study can be based on existing templates (e.g. EISENBAHNBUNDESAMT 2005, Annex IV 1; KÖPPEL et al. 2004, 320). The sample maps developed for federal road building agencies can provide useful pointers when compiling maps for preliminary NIA 2000 s for projects (Federal Ministry of Transport, Building and Urban Affairs 2004). 2.6.1 Description of the Site Concerned NIA 2000s assess formally specified NATURA 2000 sites with their habitats as stated in the FFH Directive (Annex I); the habitats of the flora and fauna listed (Annex II) and the habitats of the birds listed in the Birds Directive, in addition to the corresponding conservation objectives. The objective is to protect (or restore) the favourable conservation status of the habitats or species concerned. The supreme authority for conservation and landscape management can provide information concerning current protection of the area concerned. Special protection area ordinances specify in detail protection purposes in accordance with the corresponding conservation objectives. Since many of Berlin s Natura 2000 sites are already classified as nature reserves or areas of outstanding natural beauty special protection area ordinances and, in some cases, also preservation and development plans have already been compiled for the sites. Often, however, the protection purposes fixed in these documents do not comply with the requirements specified by the NATURA 2000 regulations; the special protection area ordinances must thus be amended accordingly. The general conservation objectives are stated in the Natura 2000 sites public announcement of 26.08.2005 and in the Official Gazette for Berlin (Amtsblatt für Berlin) No. 48 of 2005-09-29, p. 3717 et sqq. Assessments focusing on single areas and conservation objectives must be carried out on presentation of the management plan. The supreme authority for conservation and landscape management can provide advice and information in this regard. Favourable conservation status is the status required to ensure long-term, Europe-wide protection of the habitats and species covered by the FFH Council Directive and the Birds Directive. The conservation status of a natural habitat is considered to be favourable if its natural range and areas it covers within that range are stable or increasing, the specific structure and functions which are necessary for its long-term maintenance exist and are likely to continue to exist for the foreseeable future, and the conservation status of its typical species is favourable (Art. I e FFH-CD). The conservation status of a species is considered to be favourable if population dynamics data on the species indicate that it is maintaining itself on a long-term basis as a viable component of its natural habit, the natural range of this species is neither being reduced nor is it likely to be reduced for the foreseeable future and there is, and will probably continue to be, a sufficiently large habitat to maintain its populations on a long-term basis (Art. I i FFH-CD). When favourable conservation status, which may not be impaired, is a stated protection objective it is also simultaneously the benchmark for assessment of the impact of plans and projects. Environmental Assessment Berlin s Guide for Urban and Landscape Planning 31

Fig. 16: Fließwiese Ruhleben (Berlin, Charlottenburg) Thanks to the NIA 2000 carried out to assess the impact of the development of the River Spree, it was possible to sustain this habitat, home to the great crested newt (Annex II of the FFH-CD), as it was recognised that this wet area could possibly dry out as a result. The NIA 2000 study requires a description and assessment of the site and/or the area affected which takes the conservation objectives into consideration and covers the situation of the key components and priority species or habitats. Key elements of a site are its habitats as defined by the FFH-CD and the Birds Directive, and the species covered by these directives (see Sect. 16(2) BNCL). Any specific species and habitats which are not included in the directives but are relevant for the favourable conservation status of a site in particular the characteristic species of the habitat concerned can be included among the key components (SSYMANK et al. 1998). This also applies to abiotic elements of nature and the landscape as well as to structural characteristics such as, for example, the intactness of a site (see EISENBAHNBUNDESAMT 2005, Part IV and KÖPPEL et al. 2004). If applicable, it may be necessary to identify the key components in the impact assessment study. Priority protection objects are at special risk and thus accorded special protection by the European Community. Priority habitats are listed and identified in Annex I, priority species in Annex II of the NIA 2000 regulations. Information on Natura 2000 sites in Berlin is provided in a flyer produced by the Senate Department for Urban Development (SENSTADT 2005). In order to be able to predict to what extent the project or plan could give rise to impairments to a Natura 2000 site an assessment of its specific sensitivities vis-à-vis the impact factors of the plan or project is required. In the case of the FFH habitats this also requires knowledge of their characteristic species. Assignments of such species to habitats are given, for e.g., in the Handbook of the European NATURA 2000 protected sites system published by the Federal Nature Conservation Agency (SSYMANK et al. 1998) and in the Interpretation Manual of European Habitats (EUROPEAN COMMISSION 1999). 2.6.2 Description of the Project or Plan The project or the plan and/or the impact factors which could be of significance for the NATURA 2000 site should be described by the project proponent as concretely as possible to facilitate an assessment of their impact. Impact relationships can also exist across larger spatial distances; for this reason the assessment cannot be limited solely to the plan/project site. 32 Environmental Assessment Berlin s Guide for Urban and Landscape Planning

Since the starting point for assessing impact interrelationships is the Natura 2000 site in question and its specific conservation objectives, other plans and projects which could also result in a cumulative impact together with the proposed plan or project must be included in assessments (Federal Nature Conservation Agency 2004; EUROPEAN COMMISSION 2000, No. 4.4.3). Should it be foreseeable that a project or plan is inadmissible due to its significant impact and that a special approval procedure will be requested (Chap. 2.8), it is strongly recommended that acceptable alternatives also be sought from the outset and that their characteristics and impact factors be described. In the event of a special approval procedure and in order to be able to assess whether grounds for a special exception are applicable to the proposal, it is also expedient to include the formulations for the exceptional facts such as public interest, imperative, etc. in the explanatory statement relating to the proposal. 2.6.3 Assessment of Impairments and Their Relevance (Prediction of Impact) Probable impairments can be predicted by means of a comparison of the proposal s impact factors and the sensitivities of the species and habitats within the site. The objective is to show the specific impact on individual partial areas of the Natura 2000 site. This consideration may not, however, be solely limited to these individual areas. Rather more, the imperative is to assess to what extent there could be impairments to the Natura 2000 site in its entirety. This can also include changes to abiotic factors insofar as they represent key elements for the conservation objectives. The decisive issue in this regard is the relevance of the impact to be expected. Assessments are always on a case-by-case basis. It is sufficient to establish that a proposal could give rise to significant impairments without this having to be certain or provable. Factors taken into consideration include the duration, intensity and scope of the negative impact. The site s conservation objectives are the benchmark for evaluating relevance and thus, generally, the favourable conservation status to be protected or restored which is correspondingly aspired to. Any impairment ban relates to the favourable conservation status. Should the conservation status be favourable, it may not be impaired by the proposal; should it be compromised, then its improvement may not be hindered. When defining relevance, the significance of the FFH site within the NATURA 2000 network must be taken into consideration (criteria in Annex III FFH-CD). When assessing the extent of impairments, any planned compensatory measures shall have an alleviating impact. Should special protection area ordinances with deviating regulations be in place, they must be complied with (Sect. 17(4) BNCL). The Berlin Nature Conservation Law states that there have been significant impairments to a site particularly if those habitats which are key to the conservation objectives or the protection aim are impaired or if the species which caused the site to be designated are significantly disturbed or if there are significant impairments to measures for protection or restoration of a favourable conservation status (Sect. 16(2) 2 nd sentence BNCL). Environmental Assessment Berlin s Guide for Urban and Landscape Planning 33

Options for avoidance and minimisation include, among others, changes to the dimensioning of buildings; optimising the timetable for building works (e.g. to avoid birds breeding seasons); using more environment-friendly building procedures or the use of mechanisms to reduce impairments (e.g. immission control planting, crossing aids). Fig. 17: FFH site Schloßpark Buch Within the scope of a preliminary NIA 2000 assessment regarding changes to the system of ditches it was possible to avoid significant impairments to the habitat. 2.6.4 Measures of Avoidance and Minimisation Following conclusion of the impact prediction, the NIA 2000 study compiles measures of avoidance and minimisation ( damage-limitation measures ). If negative consequences for the conservation objectives of a protected site can be avoided or significantly limited, this can result in the effects falling below the significance threshold. There is a clear differentiation between these measures and coherence protection measures (FISCHER-HÜFTLE 2003; Chap. 2.9). 2.7 Results of the Assessment In cooperation with the supreme authority for conservation and landscape management the government authority in charge of the procedure formulates the results of the assessment and reaches a conclusion regarding the impact of the plan or project it is either negative, and thus inadmissible, or neutral/positive, and thus admissible. In the case of planning establishment procedures and permits with a concentration impact a conclusion is sufficient. A project or plan is particularly inadmissible if it could have significant impairments to those components of a Natura 2000 site which are key for the conservation objectives or protection purposes either individually or in combination with other projects or plans (Sect. 16(2) BNCL) 2.8 Assessment of Exceptional Circumstances If the NIA 2000 comes to the conclusion that the project or plan will give rise to impairments and is thus inadmissible then a subsequent special assessment can examine whether there is still any other possible way of approving the project or plan. Two steps are required for this: 1. assessment whether there are reasonable alternatives, 2. assessment of the exceptional circumstances. 34 Environmental Assessment Berlin s Guide for Urban and Landscape Planning

Following selection of the alternatives to be assessed (possibly as early on as the time when the scope of assessment was defined), the assessment of alternatives catalogues and assesses impairments and compares them with the original solution. The assessment of alternatives ends with a conclusion regarding whether reasonable, acceptable alternatives exist or not. The next step, assessing the exceptional circumstances, is only embarked upon if proof can be presented that there are no other reasonable alternatives which will give rise to less serious impairments to Natura 2000 sites. Proof of these circumstances must be provided by the project proponent and/or the government authority presenting the plans. Exceptional admissibility is only possible if: the proposal is in the public interest, this interest is overriding, and outweighs those NATURA 2000 interests which are affected (Sect. 16(3) 1 st sentence BNCL). If, in the case of a project giving rise to significant impairments to a site with priority habitats or species, the imperative exceptional reasons do not exist and the project should still be carried out despite this, an opinion from the European Commission must be obtained. This shall be obtained by the competent authority via the Federal Ministry for the Environment, Nature Conservation and Nuclear Safety. The Commission has issued a form detailing the information required in such a case (EURO PEAN COMMISSION 2000, Annex IV). The Commission s opinion must be taken into consideration. Fig. 18: Osmoderma eremita, a priority species from Annex II of the FFH-CD If there will be significant impairments to priority species or priority habitats on the site concerned, the project or plan may only be pursued and/or approved if the imperative considerations which are raised also fulfil the following criteria: They are related to human health, public safety including national defence and protection of the civilian population or the project or plan will have (additional) beneficial consequences of primary importance for the environment (Sect. 16(4) BNCL). 2.9 Designing Coherence Protection Measures If it is planned to approve a plan or project despite its significant impairments to a Natura 2000 site, all necessary measures must be taken to ensure the continued coherence of the NATURA 2000 network. If this is not possible then the proposal shall be deemed inadmissible. Environmental Assessment Berlin s Guide for Urban and Landscape Planning 35

The following are examples of measures: measures within the site affected which were not in any case planned within the context of the relevant conservation objectives, spatial expansion of a site, creation of new habitats in another Natura 2000 site or their expansion. Fig. 19: Brimstone butterfly on a Carthusian pink The coherence protection measures will be detailed by the project proponent or the authority proposing the plan in the NIA 2000 study; assessed and stipulated by the authority managing the procedure in cooperation or consultation with the supreme authority for conservation and landscape management. Carrying out of the measures shall be by the project proponent (Sect. 16(5) BNCL). The type and extent of these measures shall be related to the adversely affected habitats/species within the same biogeographical region. Complete functional compensation will be required. The measures must be stipulated prior to approval of the proposal and are binding. As a general matter of course they must be implemented before any damage is done, since the overall status must be preserved at any given time. In exceptional cases an application for the addition of a site that is suitable for compensation into the NATURA 2000 network with the carrying out of additional enhancing measures shall also be considered to be a coherence protection measure. If measures are carried out on sites which were not previously part of the NATURA 2000 network a (retroactive) registration of these sites as a component of the network is required. In many cases, a proposal for which a special assessment in accordance with FFH law is carried out also involves intervention in nature or landscape. The coherence protection measures and the compensatory and substitute remediation measures as stipulated by intervention regulations must then be designed in such a way that they are as congruent as possible (Sect. 16(6) BNCL); the requirements for coherence protection measures must be complied with. Measures by the habitat association may possibly also support the coherence of the NATURA 2000 network. Lastly, the European Commission shall be informed via the Federal Ministry for the Environment, Nature Conservation and Nuclear Safety of the measures taken (Sect. 16(5) BNCL). A European Commission is also available for this purpose. 36 Environmental Assessment Berlin's Guide for Urban and Landscape Planning