17-027-04-Bergamt Und BSH Stellungnahme Nordstream II
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Bergamt Stralsund Frankendamm 17 18439 Stralsund Per fax: 03831 612112 03831 612116 Per email: [email protected] [email protected] Wednesday, 31 May 2017 cc: Bundesamt für Seeschifffahrt und Hydrografie BSH Bernhard−Nocht−Strasse 78 20359 Hamburg Per fax: 040 31905000 Per email: [email protected] Nord Stream 2 - Natural gas pipeline through the Baltic Sea from Narva Bay (Russia) to Lubmin (Germany) Planning approval procedure in accordance with Section 43(2) of the German Energy Industry Law for installation and operation in German coastal waters, including landfall Approval procedure in accordance with Section 133(1)(2) of the German Federal Mining Law for installation and operation on the German continental shelf region Espoo procedure for the transboundary environmental impact study Letter from the BSH dated 7.4.2017 to WWF Germany, Baltic Sea project office, Official announcement and display of the application documents by the Bergamt Stralsund (display period 18.4.2017 to 17.5.2017 inclusive) Our ref: 17-027 Nord Stream II – PK Dear Sir/Madam, I should like to notify you of the representations of the following institutions and associations in respect of the procedure cited as reference above: 1. WWF Germany, represented by the executive board member, Mr Eberhard Brandes, Reinhardtstrasse 18, 10117 Berlin 2. WWF−Baltic Sea Office, represented by Mr Jochen Lamp, Knieperwall 1, 18439 Stralsund 3. Bund für Umwelt und Naturschutz Deutschland (Friends of the Earth Germany), Landesverband Mecklenburg−Vorpommern e.V., represented by its chair, Prof. Dr. Mathias Grünwald, Wismarsche Strasse 152, 19053 Schwerin Proper authorisation has been confirmed in my capacity as an attorney, if necessary, I can supply powers of attorney. My clients hereby adopt the comments already submitted, or yet to be submitted after today, of each other as their own. The representations are simultaneously objection and statements as defined by the German Environmental Appeals act (UmwRG) (hereinafter: comments). My clients argue that the planning approval applied for contravenes statutory regulations which are intended to provide environmental protection and which are of significance for the decision, and further that the planning approval applied for also contravenes statutory regulations that are not intended to provide environmental protection and are of significance for the decision. Both the WWF as a foundation and Friends of the Earth Germany, being a recognised nature conservation association, claim to be affected by the decision requested in respect of their statutory remit of promoting the objectives of environmental protection. My clients also reserve the right to make further or supplementary arguments after the expiry of the time limit for public participation. I should like to expand on the comments made by my clients as follows: 1. Absence of specification and assurance of compensation measures The landscape management plan for the route section in the coastal waters of Mecklenburg−Western Pomerania and in the area of the landfall at Lubmin from March 2017 contains on page 286 the following passage with respect to the compensation measures: All sets of measures have been assessed together with the nature conservancy authorities responsible in each case with regard to their suitabilty for the implementation of compensating substitution measures in accordance with Section 15, paragraph 2 of the German Federal Nature Protection Law. Further specification of the sets of measures in respect of their availability under civil law will show which sets of measures or partial sets of measures can be specifically established as compensation measure in the planning approval. It is clear from this passage that it has not been determined at the current time which sets of measures are to be implemented and then specifically to be laid down in the planning approval as compensation measures. An approach of this kind is not permissible. Both the necessary compensation in accordance with Section 15 of the German Federal Nature Protection Law and the required coherence of compensatory measures according to Section 34(5) of the German Federal Nature Protection Law in the area of the habitat protection and any necessary definition of equalising measures brought forward as a consequence of nature protection legislation as determined in the third sentence of Section 44(5) of the German Federal Nature Protection Law and, where necessary, measures in measures programmes in accordance with Section 82 of the German Water Resources Law must be components of the planning application (hereinafter known consistently in the context described as: compensation measures). The planning application decision must conclusively determine which compensation measures have been defined and what these compensation measures are intended to compensate for. The selection and attribution of the compensation measures must be made clear in the application documents. Subsequent definition of the compensation measures is not permissible for a number of reasons. On the one hand, keeping the definition of compensation measures from a selection listed in the application document open is in breach of the public consultation requirements. As part of the consultation of the public and stakeholders, the public and the stakeholders must have the opportunity to express their views on the intended measures. Although this does not mean that further amendments are not permissible after the public consultation. It is, however, impermissible during the course of the public consultation to present only a sort of offer for selection that can then be firmed up after the public consultation by the authority without the public having the opportunity to have any influence on this during the course of the consultation. Since, in addition, the presentation of a selection list of this kind does not contain any information as to which measure is intended to compensate for what intervention or what effects, a qualified statement in this regard would also not even be possible, because the congruence between intervention or impact on the one hand and compensation measure on the other hand, must be established and investigated specifically for the intervention or impact concerned. The application documents as presented do not permit this. The presentation of a selection list of compensation measures yet to be concretely defined further breaches the requirements of Section 15(2) of the German Federal Nature Protection Law and against the requirements of the further compensation requirements of the specialist laws that have already been listed above. According to Section 15(4) of the German Federal Nature Protection Law compensation and substitution measures must be maintained and secured in law in the period required. In particular, legal assurance of the compensation measures must be in place at the time of the planning approval decision. To this extent it is not possible to make any statement at all regarding the legal backing of the compensation measures for the areas the availability of which has not yet been resolved (see landscape management plan, page 286). Thus the selection of the compensation measures does not only depend on the later decision by the authority, but also from external factors which have not yet been clarified at the time of the public consultation. The compensation concept presented thus is in breach of the legal requirements as a whole. If the development proposal is maintained, it is necessary first to specify which interventions or impacts are to be compensated for by which measure. Then it is necessary to specify whether the compensation measures to be stipulated accordingly are actually available. Further, it must be stated precisely what impact and which intervention is to be compensated for by which measure and which safeguards and supporting measures are provided for this. A compensation concept of this kind shall then be re-presented for public consultation. Should the planning approval order result in the absence of corresponding consultation of the public, it would be unlawful because of the breach of public consultation and would fall victim to revocation or at the least non-enforceability in court proceedings. 2. Impermissible reference to the renaturing of the Ossenniederung My clients' representations point out that an already planned and partially completed renaturing measure (reflooding of the Ossenniederung) has been impermissibly recognised as a compensation measure. This is not permissible. The approved measure is not a compensation measure for the project presented here. Were it to be permissible to define any measure that enhances nature retrospectively as a compensation measure for a future intervention, this would mean that it would be sufficient in order to balance out the impact of an intervention, and also in respect of the assessment of compatibility with regard to habitat conservation legislation, to go searching for a measure that has a positive impact on nature, and then to declare this the compensation measure. Apart from this, a procedure of this nature would contradict the basic concept of compensation. Compensation is about balancing out an intervention in nature and the landscape proposed for the future by correspondingly enhancing measures at the same or a different place. Compensation of this kind necessarily requires that corresponding measures enhancing nature are bound to the development proposal itself. Reference back to approved