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Habitats Directive and Appropriate Assessment

Table of content

1. The Habitats Directive:

The Habitats Directive is the short-name for “Directive 92/43/EEC of the Council” of the European Union concerning the protection of wildlife and natural habitats. The Habitats Directive was introduced in “1992”. It forms part of EU law on nature and incorporates and modifies the Birds Directive. The Directive includes European protected species and other issues, as well as identifying natural areas and specifying how they should be protected. The Convention on Biological Diversity, agreed at the 1992 Earth Summit in Rio, is a significant contribution to the European community. (Pillai, 2015)

In regulating protected site development, the “Habitats Directive as a benchmark of European Nature Conservation Act produces a triumvirate”. The authority of decision-makers, technical advisors (used generically to refer the decision-makers to those who have expert scientific proof) and the courts is divided. (The habitats directive in its EU environmental law context, n.d.) There are several layers of decision-making that agree to changes in the UK. The first step is general. In other words, the local and national planning policies and plans are designed to provide an outline of a generally appropriate development in each area and that is generally unacceptable. For instance, a local plan may state that “500 households” must be built in a certain area without specifying the exact location, size of house etc. On the basis of the provisions of the Directive, the local and national plans themselves are subject to review. This cycle has a significant effect on the likelihood that a protected environment would be created or affected. (Jones, 2012)

“Sweetman v An Bord Pleanála” is the first case to be considered. Under this case, the ECJ provides guidance on "adverse impact on the reputation of the site" (i.e. “the second step of the assessment under compliance with Art. 6(3)”). In so-holding, it relies on Waddenzee but offers more instructions on how the Directive works, and what decisions and by whom in connection with projects or plans in or near protected sites need to be made. (Möckel, 2017)

The case concerned the proposed construction of a road scheme for the “N6 Galway City Outer Bypass, affecting 1.5 hectares of limestone”. It will leave the “SCI” (Site of Community Importance a site submitted to the Commission that could eventually become a Special Conservation Area according to the directive on habitats) for a hundred of hectares of this habitat unattached. The problem was whether a very small part of the habitat would be lost entirely.

The Court therefore held that: authorizations for the plan or the project should only be given if the competent authorities-having defined all aspects of the planning or the project-are satisfied that the plan or the project would not have lasting adverse effects on the integrity of the site, in the light of the best available scientific information in the area. There is no reasonable scientific doubt as to whether such effects are not present.

“General Sharpston” addresses in detail the protocol to be followed in the conduct of an assessment in compliance with “Article 6”. The Advocate General stresses, in the understanding of its terms, the importance of the purpose of the Directive. Therefore (whether couched or not specifically in scientific terms) the first question of choice that occurs in making this assessment relates to the particular conservation objectives of the site. Although these will be defined at the time of selection, there are unavoidable variations in the parameters of these goals and their interpretation is needed in the evaluation process.

In fact, the objective is to ensure that the site is "likely to continue to exist in the foreseeable future," with its special conservation structures and functions. This test seems to be a purely scientific judgment on your face once again. But it is obvious that this decision is not susceptible to scientific investigation alone, i.e. the chance that the site has a good preservation status. Rather, it is, in part, a matter of political decision making in the sense that, when assessing both what is meant by probability and how far the foreseeable future extends, different values, including the desire to safeguard the environment and the social benefits of development, have to be weighed against one another. Thus, the complexity of the information and values to be considered when carrying out this objective, even if the broad purpose of the Habits Directive is taken into consideration, means that such a stage is not easy. (Jans, 2000)

“Briels v Minister van Infrastructuur en Milieu” is the second point. In this case the “A2 Hertogenbosch-Eindhoven road” was also involved. This is the case. The plan for extending this route would have effects on a “SAC”, a habitat for Molinia meadows, mainly because of increased deposits of nitrogen. The “CJEU” was asked to assess whether the site was not affected by compensatory measures, such as the development of another area of this habitat in the vicinity.

The relevant question was therefore as to whether “Article 6(3) of the habitats Directive” should be interpreted to mean that, in the same site, a region of equal or greater size of the same natural habitat type has an effect on the quality of the site, a plan or project with negative impact on the kind of natural habitat present therein. The Court emphasizes that the Directive has to be "coherent in its entirety." Again, as the driving force behind the interpretive approach, they rely on the conservation goals of the Directive. The Court found that, in its assessment of the project consequences under “Article 6(3)”, the protection measures provided for in a project aimed at compensating for negative effects of the project on the "Natura 2000" site cannot be taken into account. (Diaz, 2001)

This inference is based not least on the fact that the effects of new habitats are very difficult to reliably predict. The reliance of the Court for these judgments on the proof of scientific evidence is evident, and “Sweetman and Waddenzee” reiterate their precautionary approach: 'The evaluation carried out cannot be lacunae and must include full, accurate and final conclusions and findings that can remove any rational scientific doubts.'

There are, therefore, a partial assumption based on the limitations of the available data, that the developments of new habitat should be interpreted as compensatory steps. If such proof is negligible or unclear, the development of novel habitats is seen as compensatory (instead of mitigation), then a scientific evaluation is rendered more rigorous and accurate in compliance with “Article 6(3)” with some ambiguity. In addition, the Court's approach indicates that the proof can indeed be a scientific consensus product: however, whether or not such consensus was reached is a question of judgment in itself. (Jans, 2000)

1. Appropriate assessment:

A detailed analysis of the effect of the project on that European site is the appropriate assessment. Developers are expected to report to notify the appropriate assessment “(RIAA)” to support the appropriate evaluation. When the outcome is a negative assessment of the effects on the European site and no alternative solution is available, if the proposed plan is to be approved, it is important that the “IROPI” test be fulfilled. (Balias, 2018)

It is the responsibility of the competent authority to perform the appropriate assessment. However, the assessment process should include the gathering and consideration of information from multiple stakeholders, including the project or plan promoters, national, regional and regional conservation authorities and the related NGOs, as mentioned in the introduction to this guidance document. As in the case of the “EIA process”, the appropriate assessment usually includes sending data for consideration by the competent authority by the project or program proposer. The Authority can consult with internal and external experts and other interested parties on the basis of this information. To order to ensure that the final review is as detailed and impartial as possible, the competent authority can need to request its own reports. In this step, consideration will be taken of the effect on the integrity of "Natura 2000" site of the project or plan on the conservation objectives of the site and on its structure and operation (whether alone or in association with other projects or plans). The guidelines on "Natura 2000" from the Commission services state: 'A site's reputation includes its ecological functions’. Whether it is adversely affected should be based on the site's management goals, and should be limited to them' (Maurici & Parkinson, 2013)

2.1 Step One: Details Needed to ensure that enough data is available to complete the correct assessment. Further inquiries are needed if information is not known or not available. The first step in this assessment is to identify the site management objectives and to identify the elements of the project or program that will affect those goals. These goals are normally achieved by the standard "Natura 2000" site data formats or by the management plan of the site, where available. If information is lacking, it is usually appropriate to apply additional survey fieldwork to existing data.

2.2 Step Two: Impact prediction the potential impact of a project or plan on "Natura 2000" may become difficult, since it is dynamic and not easy to measure the elements making up the ecological structure and function of a site. The prediction of impacts must be carried out as objectively as possible within a structured and systematic framework. This requires the identification of the types of impact — these are generally presented as direct and indirect effects; short-term and long-term effects; building, operational and decommissioning results; and individual interactive and cumulative effects. Box 8 illustrates the range of available methods for impact prediction. (Hill, n.d.)

2.2.1 Direct measurements may recognize proportionate losses from species populations, ecosystems and communities, for example in areas where habitat is lost or affected.

2.2.2Flow charts, networks and machine diagrams describe chains of primary impacts; secondary effects are called side effects, tertiary impacts, etc. Systems diagrams in illustrating linkages and process pathways are more flexible than networks.

2.2.3Quantitative predictive models: Mathematically driven predictions are based on data and assumptions on effect intensity and direction by quantitative predictive models. Models can extrapolate predictions consistent with past and current data (trends analysis, scenarios, data transfer analogies) and intuitive predictions. Normal methods to modeling work backwards from the desired outcome to determine whether this would be accomplished by the proposed method. Some rising models predict air pollution dispersal, soil erosion, stream loading, and oxygen sediment dispersion in rivers that are polluted. (Jack, 2014)

2.2.4 Geographical information systems (GIS) may be used for generating spatial relationship modeling, such as constraint overlays, or for mapping vulnerable areas and habitat loss locations. GIS is a mix of computerized mapping and data analysis and database administration, collection of land-use attributes and slope attributes. GIS allows for rapid view, combination and review of the saved variables.

2.2.5 Information from similar prior projects can be useful, especially if initially quantitative forecasts are made and operationally monitored.

2.2.6 The opinion and judgment of experts may be based on previous experience and consultations

2.3 Step Three: Conservation objectives After the project or program effects have been identified and planned, the site's maintenance goals and status must be evaluated as to whether adverse effects are likely to occur on the site integrity. The following are examples of conservation targets.

Examples of the conservation goals for a chalk stream:

1. For a chalkstream: in-channel vegetation should be dominated by species; natural river processes should be maintained by adequate flow; spring flows should be preserved and the substratum of the river should continue to be transparent gravels.

2. For an estuary site: estuary management in good condition, plus associated flora and fauna.

3. For a coastal site: to maintain in favorable condition the status of the European features of this coastal site, which enables natural change. Characteristics include coastal shingle and lagoon plants (including a Special Protection Area Candidate (SAC), and an SPA.

4. For a marine site: to ensure that the structure, biodiversity and distribution patterns of highly sensitive species in the environment are not netly affected or changed.

5. For the location of a saltwater lagoon, maintain the lagoon in favorable condition in relation to the key communities within the region, subject to natural change.

The precautionary principle should be followed when performing the necessary evaluations and an objective demonstration of no adverse impact on the reputation of the "Natura 2000" site should be the focus of the evaluation with help of evidence. There not, adverse effects have to be taken for granted. From the information gathered and forecasts made about the changes which may arise as a result of the project or plan's construction, operation or decommissioning, the integrity of the site checklist should now be completed.

Case study: Adverse impacts upon site integrity

2.3.1 Water abstraction from a chalk stream: The Environmental Protection Authority has decided in this case that possible negative impacts on the site's integrity can not be excluded in view of difficulties in assessing if the unfavorable state of plant population at the moment (at the time of the assessment) is attributable to the natural variability or abstraction. The precautionary principle was the key to the evaluation process in this regard. (Hering et al., 2004)

2.3.2 Industrial developments: In that case the effect of SPA and Ramsar Convention status plus national designations was viewed in a negative light. The reputation of the site was linked to the missing site and to the effects on birds, primary ecology and invertebrates. This example demonstrates that the structure and role of the site and the main dynamics of interaction between species and habitats are important to understand.

2.3.3 Docks development: The proposed single development at an estuary site did not have a significant impact on the site's environmental interests, but it was expected that it would have a damaging effect. The Authority has maintained its opposition to the development on the basis of the prudential principle since its concern about the ongoing loss of habitat types remaining present.

2.3.4 Ports development: The National Nature Conservation Agency determined that insufficient information existed at that site about tidal sediment to decide whether any alteration in the system would adversely affect the integrity of the entire site. To achieve prevention and control, the possibility of adversely influencing the reputation of the site was enough — again demonstrating the benefit of applying the precautionary principle.

Proponents of programs and plans are also advised to incorporate mitigation strategies at the outset of their proposals. However, it is necessary to note that in the absence of any mitigation measures which are in a project or plan, and which are aimed at preventing or minimizing the effect of a project or plan on the "Natura 2000" site, the screening evaluation should be performed. The definition of effective mitigation rates can vary with the proponents' definition of effective mitigation and other stakeholders. The competent authority may evaluate the project or proposal in the absence of mitigating steps that are planned for a project, in order to make sure the evaluation is as accurate as possible. Active adverse effect prevention at "Natura 2000" sites will take place only after complete recognition, evaluation and recording of these results. The competent authority shall then decide on the nature and level of mitigation appropriately, on the basis of consultation. (McGillivray, 2011)

Mitigation steps must be assessed against possible adverse consequences (alone or in conjunction with other programs or plans) of the project or scheme. It will be up to the competent authority to decide whether mitigation rates are needed and the authority will be responsible for taking into account recommendations from the appropriate nature conservation authorities and NGOs as well as from the project or plan proponent. (McGillivray, 2011) For order to assess mitigation steps: inventory of the interventions to be introduced (e.g. noise bonds, planting of trees).

The following activities have to be performed.

• Explain how the activities can avoid harmful on-site impacts.

• Explain how the steps would popular the site's detrimental effects. Then prove how and by whom they are obtained and enforced for each of the measures mentioned in this study.

• Prove a degree of confidence in their likely success.

• Provide a time scale as applied, in relation to the project or program.

• Provide evidence of how the interventions are tracked and how the failure, when the failure of mitigation is established.

• Prove how actions are being monitored and how that failure can be corrected should mitigation failure be identified.

Case study examples:

2.4.1 Mitigation Road and rail developments across dry habitats: In that case, steps to mitigate impacts include adequate preparation for building activities aimed at avoiding or minimizing fauna disruptions or the loss of nests and shelters, and the installation of screens to deter birds, collisions and electrical equipment. In order to mitigate induced effects in the area, improved land planning control has also been recommended.

2.4.2 A mountain railway project: the developer was expected to apply a visitor management plan with an agreed surveillance system to ensure adverse effects were prevented.

2.4.3 River dock development: Monitoring of the progress of mitigation measures for invertebrate recolonization of the region was suggested for the dredging of a channel and for the establishment of quays on river banks.

2.4.4 Industrial development: The re-stimulation of construction activities, a code of construction practice in order to prevent or reduce invasion or perturbation and a screening of a major work site and of its bird workers using a "Natura 2000" site were part of the mitigation for a cluster of major projects.

1. Conclusion:

Considers the impact of the project or plan on the integrity of the Natura 2000 site on the structure, function and conservation objectives of the site, either alone or in association with other projects or plans. In addition, an assessment of the potential impact mitigation is conducted where adverse effects occur. After the appropriate evaluation has been completed, the appropriate authority must consider best practice in producing a relevant evaluation report. For consultation with the relevant nature conservation agencies and the public, the appropriate evaluation report should be forwarded. If the competent authority considers that residual adverse effects remain, then, in spite of the application of the mitigation measures, the project or plan shall be implementable until after the completion of the Stage Three assessment and it has been objectively concluded that alternative solutions do not exist.

References:

Balias, G. (2018). The Appropriate Assessment under the European Habitats Directive: Interplay Between Science, Law, and Policy. Journal Of International Wildlife Law & Policy, 21(4), 281-306. https://doi.org/10.1080/13880292.2018.1551477

Blackstone, W. (2009). Commentaries on the laws of England. The Lawbook Exchange.

Diaz, C. (2001). The EC Habitats Directive Approaches its Tenth Anniversary: An Overview. Review Of European Community & International Environmental Law, 10(3), 287-295. https://doi.org/10.1111/1467-9388.00288

Hering, D., Verdonschot, P., Moog, O., & Sandin, L. (2004). Integrated Assessment of Running Waters in Europe. Springer Netherlands.

Hill, D. Handbook of biodiversity methods.

Jack, B. (2014). Protecting Natura 2000: Avoiding Adverse Impact upon European Sites. Environmental Law Review, 16(2), 129-135. https://doi.org/10.1350/enlr.2014.16.2.211

Jans, J. (2000). Case law analysis. The habitats directive. Journal Of Environmental Law, 12(3), 385-390. https://doi.org/10.1093/jel/12.3.385

Jones, G. (2012). The Habitats Directive. Hart Publishing.

Maurici, J., & Parkinson, A. (2013). Appropriate Assessment by a Competent Authority under the Habitats Regulations. Environmental Law Review, 15(2), 152-158. https://doi.org/10.1350/enlr.2013.15.2.183

McGillivray, D. (2011). Mitigation, Compensation and Conservation: Screening for Appropriate Assessment Under the EU Habitats Directive. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.1924264

Möckel, S. (2017). The European ecological network “Natura 2000” and the appropriate assessment for projects and plans under Article 6(3) of the Habitats Directive. Nature Conservation, 23, 1-29. https://doi.org/10.3897/natureconservation.23.13599

Pillai, A. (2015). Book review: The Habitats Directive in its EU Environmental Law Context: European Nature’s Best Hope?. Environmental Law Review, 17(4), 304-305. https://doi.org/10.1177/1461452915611854

The habitats directive in its EU environmental law context.

Unnerstall, H. (2005). 'Sustainable Development' as Legal Term in European Community Law: Making It Operable Within the Habitats Directive and the Water Framework Directive. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.938076