Natura 2000 Case Study Collection 2007 Justice & Environment Natura 2000 Case Study Collection
Contents Contents ...... 2 Introduction...... 3 Estonia: Ropka Bridge ...... 9 Czech Republic: R 55 motorway (Breclav – Otrokovice) ...... 23 Hungary: Municipal Sewage Treatment Plant of Mártély ...... 34 Austria: Lauteracher Ried ...... 45 Acknowledgements ...... 57
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Introduction Justice & Environment (J&E) is an association of public interest environmental law organizations based in the EU member states. J&E aims to use law to protect people, the environment and nature. Our primary goal is to ensure the implementation and enforcement of EU legislation through the use of European law and the exchange of information. Having started its work as informal network in 2003, the first full year work plan was implemented by J&E in 2006. Implementation and transposition of the Habitats Directive 1 (HD) was chosen by J&E members as one of three first legal areas to be worked on. In 2006, J&E carried out an analysis on implementation and transposition of the HD, more specifically the implementation and transposition of Articles 6.3 and 6.4 of HD in Estonia, Czech Republic, Hungary and Slovakia. On the basis of legal analysis on transposition of Article 6.3 and 6.4 of HD into national legislation of the four EU Member States 2 and the case studies that represent typical cases of implementation of Article 6.3 and 6.4 of HD in practice 3, J&E issued a position paper. This paper described problems with implementation of HD in new Member States and made suggestions for improvement 4. The J&E case study collection from 2006 described four cases in separate Member States that we considered examples of the incapability of new Member States to comply with requirements for assessment of plans and programs, according to Article 6(3) and 6(4) of the Habitats Directive. On the basis of these case studies, we isolated common problems in implementing Habitats Directives, despite the fact that the studies described development projects of different natures (a wind farm in Hungary, a marine port in Estonia, a cable way in Slovakia and a river canal in Czech Republic). Problems detected were as follows: • Environmental impact assessments of the projects do not take into account that the projects are to be carried out on Natura 2000 sites research concerning values and impacts to the sites has been too limited and shallow. In some cases the information about values was provided only during the course of proceedings for permit. • Although it is clear that the protected species or habitats will be harmed (in some cases destroyed, e.g. the case of Slavik Islands in Czech Republic), permits for the projects was issued by the authorities. • In no cases were location alternatives considered that might have resulted in reduced negative impact. • In most of the cases no compensatory measures to ensure that the overall coherence of Natura2000 is protected were taken by the authorities, or the offered measures are obviously insufficient.
1 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora 2 The legal analysis is electronically available at J&E webpage: http://www.justiceandenvironment.org/wp content/wp upload/JE2006Naturalegalanalyis.pdf 3 The comparative case study collection is available at J&E webpage: http://www.justiceandenvironment.org/wp content/wp upload/JE2006Naturacasestudy.pdf 4 The position paper is available at J&E webpage: http://www.justiceandenvironment.org/wp content/wp upload/JE2006Naturapositionpaper.pdf Page 3 of 57 Justice & Environment Natura 2000 Case Study Collection
However, taking into account that all cases (more specifically, administrative proceedings) were initiated before the accession date and the obligation to follow Articles 6(3) and 6(4) of the Habitats Directive was questionable (taking into account ECJ interpretation in several cases), the described cases cannot be considered direct violations of EU Directives. In 2007, our primary goal was to ascertain whether the violations of provisions of Habitats Directives in these cases were because fulfillment of Articles 6(3) and 6(4) was not obligatory. J&E members found continuing cases of non fulfillment of the requirements of HD. In order to ascertain the nature and possible common reasons for such violations, we collected a new set of case studies. Comparative analysis: The following cases have been selected by J&E members as representative examples of implementation of the Habitats Directive: Case Country Description of the plan Timeline Ropka Bridge Estonia A motorway bridge over 2005 … Emajõgi River and Ropka Ihaste floodplain to connect both sides of Tartu City R55 motorway Czech Highway R55 connecting city 1994 … (Breclav Otrokovice) Republic agglomeration at south east of CZ close to borders with Slovakia Municipal Sewage Hungary Construction of a municipal 2005 … Treatment Plant of sewage treatment plant at a Mártély Natura 2000 area Lauteracher Ried Austria Construction of federal S18 1992 … dual carriageway On the basis of case studies, relevant problems and aspects regarding implementation of Article 6(3) and 6(4) of HD are highlighted and analyzed below. Timing of implementation: The initial purpose of the case study collection was to analyze cases initiated after accession to the EU. However, such cases may be rarely found among new Member States, especially cases with major impact to Natura sites. There are many projects that may impact adversely the integrity of Natura sites, but such projects are only part of a decision making process, initiated before accession. Decision making may in some part be political and not administrative. Therefore, a question arises about what should be considered as “initiation” or “application for authorization” for such projects, especially for big infrastructure projects.
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For example, in the Czech case (highway R55) the relevant land use plans were enacted during the years1994 1998. In the Estonian case, the location for a bridge was included in a comprehensive plan of Tartu City, enacted after the accession (2005), but initiated before (2002). At the same time, the EIA or SEA was, in both Estonian and Czech cases, initiated only for further administrative proceedings in 2005. Is the Habitats Directive then applicable? The Austrian case study in this collection reflects an ECJ judgment in case C 209/04 (Lauteracher Ried) which illustrates fundamental positions about timing of the application of the Habitats Directive. ECJ refers to earlier judgments about the timing of the application of EIA Directive 85/337/EEC. ECJ claims the principle (that projects likely to have significant effects on the environmental must be subjected to an environmental assessment) does not apply where the application for authorization for a project was formally lodged before the expiry of the time-limit for transposition of a directive . However, in the case C 209/04, Advocate General Kokott pointed out several significant differences between Habitats Directive and EIA Directive (the former laying out substantive requirements regarding approval of a project, while the latter only contains procedural provisions). It sets no binding environmental standards, so it does not oblige the competent authorities to draw particular conclusions from the findings of the environmental impact assessment. We took into account the fact that land use plans do not give authorization for a project, but create mere possibility for a project to be carried out in a certain area. Therefore, it must be concluded in all cases analyzed in present collection, HD was applicable. We except the Austrian case (as stated by ECJ) which serves as good example of problems with the timing of application of HD. Appropriate assessment: According to Article 6(3) of HD, any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives . The cases in question concern different plans and projects, although the issue is in general road building in the Czech, Austrian and Estonian cases. However, in all cases the plans or projects are undoubtedly “plans or projects” in the meaning of Article 6(3) of HD. Furthermore, in all cases, the plan or project will be carried out in or near to Natura sites (SPA in all cases, pSCI in Estonian and Hungarian case). It is also obvious that the plans or projects in question may have significant effect upon the Natura sites in question. According to the ECJ decision in “Waddenzee” case 5; triggering of the environmental protection mechanism provided for in Article 6(3) of HD does not presume that the plan or project considered definitely has significant effects on the site concerned but “follows from the mere probability that such an effect attaches to that plan or project”.
5 Case C 172/02 Page 5 of 57 Justice & Environment Natura 2000 Case Study Collection
Moreover, ECJ has stated in this case that the first sentence of Article 6(3) of HD must be interpreted as meaning that any plan or project not directly connected with or necessary to the management of the site is to be subject to an appropriate assessment of its implications for the site in view of the site’s conservation objectives if “it cannot be excluded, on the basis of objective information, that it will have a significant effect on that site, either individually or in combination with other plans or projects”. The assessment of possible impacts to Natura sites in question have been carried out to different degrees in each case analyzed. No environmental impact assessment (EIA) was carried out at all in the Hungarian case, although the sewage treatment plant was planned to SPA and pSCI where a majority of species are sensitive to changes in water quality. There is no evidence of objective information confirming the exclusion of significant effects to Natura sites. In the Estonian case (Ropka Bridge), the developer and decision maker in one person (City of Tartu) repeatedly and clearly refused to carry out a “Natura assessment” according to the requirements of the Habitats Directive, although a strategic environmental impact assessment (SEA) was initiated. In this case, the main reason for refusal for “Natura assessment” was a dispute over the status of the area (Natura site or not?). Only in the Czech case (highway R55), was a Natura assessment carried out as part of the EIA proceedings. Note that according to the ‘conclusions of J&E legal analysis concerning transposition of Article 6(3) and 6(4) of HD into national legislation of the relevant new Member States’, the problem of vague provisions concerning the assessment of interference with Natura sites are common in all subject Member States. An example is the Estonian case, Ropka Bridge, where SEA is initiated but Natura assessment not, while at the same time the scope of SEA contains elements of the Natura assessment. Agreement to proceed only after proving no adverse affect to the integrity of the site concerned: According to Article 6(3) of HD, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public. The ECJ stated in the Waddenzee case that ‘it is apparent that the plan or project in question may be granted authorization only on the condition that the competent national authorities are convinced that it will not adversely affect the integrity of the site concerned’. According to the ECJ decision in this case, “where doubt remains as to the absence of adverse effects on the integrity of the site linked to the plan or project being considered, the competent authority will have to refuse authorization”. In all cases analyzed, participants to the administrative proceedings raised doubts about adverse effects on the integrity of the site linked to the plan or project.
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In the Hungarian case, the possible effects concerned changes in water quality due to discharge of wastewater from the sewage treatment plant in an area where majority of species are sensitive to changes in water quality and fauna is considered sensitive and endangered. Nevertheless, no assessment was carried out and permits were issued by authorities. In the Czech case, the NGOs indicated that the road project endangers the entire population of European nightjar and woodlark; the road would pass right through the bird area, resulting in fragmentation, noise and light pollution. However, the EIA statement was granted, creating the possible basis for a further permit. In the Estonian case, the bridge project may affect hydrological systems within the whole Natura site. The proceedings are still ongoing, so no conclusions can be drawn towards actions of authorities at this time. Alternative solutions: Article 6(4) of the Habitats Directive provides that, ‘if, in spite of a negative assessment carried out pursuant to the first sentence of Article 6(3) and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, the Member State is to take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected’. According to ECJ, that provision, which permits a plan or project which has given rise to a negative assessment under the first sentence of Article 6(3) of the Habitats Directive to be implemented on certain conditions; must, as a derogation from the criterion for authorization laid down in the second sentence of Article 6(3), be interpreted strictly. Thus, the implementation of a plan or project under Article 6(4) of the Habitats Directive is, inter alia, subject to the condition that the absence of alternative solutions be demonstrated .6 The problem of alternatives is most clearly visible in the Czech case (highway R55). There was no assessment and hence no alternatives considered in Hungarian case. In the Estonian case the assessment is still ongoing. In the Czech case, two options of the R55 motorway differing only in design, but following the exact same route crossing the SPA were assessed (var. A and B). Therefore, no real alternative routes were assessed as required by Article 6(4) of HD. In the Estonian case, the SEA program (scope document) of detailed plan of Ropka Bridge foresees considering different alternatives, of which one is 0 alternative. All others differ by the means with which the planned road/bridge crosses the floodplain (raised viaduct or road dam). Again, it should be noted that the problem with assessment of alternatives may arise not only from practice, but from legislation, as in some Member States national legislation foresees considering only “real” or “reasonable” alternatives. This could come down to interpretation on basis of economic interests.
6 Case C 239/04, p 34 36 Page 7 of 57 Justice & Environment Natura 2000 Case Study Collection
Conclusions: Comparison of the cases initiated before and after the accession to the EU shows that there is not much difference in quality of implementation of Article 6(3) and Article 6(4) of HD. It may be that authorities are better aware of Natura assessment as such, but are still reluctant to implement it. ECJ judicial practice about the timing of application of HD unfortunately increases the confusion about cases where the assessment should be carried out and where it is not obligatory. The clearest problems, outlined in the case studies in present collection, follow: Natura assessment is not initiated at all, although the project or plan in question may adversely affect the integrity of a Natura site; • Even when environmental impact assessments are carried out, they might not take into account the specific requirements for Natura assessment. • Conclusions concerning the absence of adverse effects to the integrity of the site are drawn easily, even when doubts clearly remain. • In the case of adverse effects, projects may be authorized without proving the absence of alternative solutions.
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Estonia: Ropka Bridge 1. Title of case: Ropka Bridge 2. Matter of case: Construction of a motorway bridge over Ropka Ihaste Floodplain 3. Country: Estonia 4. Location: City of Tartu (Second biggest town in Estonia, southeastern region) 5. Geographic dimension: Local 6. Initiator of case: • Estonian Green Movement – Friends of Earth Estonia • Estonian Fund for Nature • Estonian Ornithological Society 7. Participants involved: • Tartu City government and council • Ministry of Environment (incl. Tartu County Environmental Department ) • Estonian Fund for Nature • Estonian Green Movement – Friends of Earth Estonia • Estonian Ornithological Society 8. Other interested parties and/or stakeholders: • The County Government of Tartu county
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9. Background facts: 9.1. Account of facts The current spatial comprehensive plan of Tartu City envisages a plan for diffusing traffic flows, including building several additional bridges over the Emajõgi River, which currently divides the city into two halves (which has already been united with several bridges). One of these bridges is Ropka Bridge. The area on the shores of the Emajõgi River (Ropka Ihaste Floodplain) is of high natural value. The formation of a protected area has been under discussion since 1992. Part of the area has been listed as a Natura 2000 site by the Government in 2004, but the Tartu City Government has strongly rejected the idea of a Natura 2000 network area within the bounds of the City. While it sees the area has potential for an international rowing channel, housing development and two bridges, the Ministry of Environment (MoE) did not include the whole area in a preliminary list of Natura sites. Therefore, Ropka Ihaste Floodplain is not protected under any national protection regime, although preparations for protected area are ongoing. The Tartu City Government has initiated a detailed plan for Ropka Bridge, followed by a decision to initiate SEA to the plan. The City Government refused to initiate a Natura assessment according to requirements of the Habitats Directive, claiming the bridge area not to be a Natura site. However, in March 2007 MoE supplemented the list of Natura sites and included an additional part of the disputed area to the list, including the area of location of the planned Ropka Bridge. In October 2007, all the relevant proceedings are ongoing so the final outcome of the case is not yet known. However, the developing situation is a vivid example of practice in the protection of Natura sites, including implementation of Natura assessment requirements in Estonia. 9.2. Description of the Natura 2000 locality concerned General description of the site(s) concerned: N/A Name of the site: Ropka Ihaste Floodplain Nearest town/city: The site is situated within southeast part of Tartu City Surface area: The surface area of the site is ca 695 ha. However, the current extent of SPA is only 695,3 ha from a total of 870, because it does not include part of the floodplain on the eastern side of the Emajõgi River surrounded by the City of Tartu (the Ihaste Meadows).
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Special Protection Area: Ropka Ihaste SPA – code EE00800313
Proposed site of European Community importance:
Ropka Ihaste pSCI – code EE0080313 Map of the site or sites affected:
Ropka bridge and official boundaries of SPA/pSCI not including the Ihaste separate part of the future protected area
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Map of future Ropka Ihaste protected area according to draft of protection rules as of 09.03.2007 Principal habitats and species directly affected: According to Estonian Government regulation on the list of sites of Natura 2000 network to be submitted to the European Commission7, the SPA of Ropka Ihaste Floodplain is selected for the protection of following bird species of Annex I Birds Directive and of the habitats of migratory birds not included to Annex I: • Northern pintail – Anas acuta • Northern Shoveler Anas clypeata • Wigeon Anas penelope • Mallard Anas platyrhynchos • Garganey Anas querquedula • White fronted Goose Anser albifrons • Bean Goose Anser fabalis • Dufted Duck Aythya fuligula • Bittern Botaurus stellaris 7 Governments regulation No 615 k from 5 August 2004 Page 12 of 57 Justice & Environment Natura 2000 Case Study Collection
• Black tern Chlidonias niger • Corncrake Crex crex • Bewick´s swan Cygnus columbianus bewickii • Coot Fulica atra • Great Snipe Gallinago media • Little gull Larus minutus • Black headed gull Larus ridibundus • Ruff Philomachus pugnax • Red necked grebe Podiceps grisena • Little Crake Porzana parva • Spotted Crake Porzana porzana • Water rail Rallus aquaticus • Wood sandpiper Tringa glareola • Lapwing Vanellus vanellus The pSCI of Ropka-Ihaste Floodplain is designated to protect following habitats of Community priority: 9080 * Fennoscandian deciduous swamp woods 9.3. Description of the investment plan and its impacts on the Natura site: Description of the planned activity: According to initial draft of THE detailed plan, the proposed Ropka bridge begins from the western shore of the Emajõgi River and spans the river and floodplain to the eastern shore. The width of the bridge is 28,5 meters. It shall have 2 traffic lanes in both directions and both directions shall also have lanes for non motorized transport. It is possible to build the bridge on the raised viaduct or on the road dam over the floodplain. Both alternatives will be assessed. An amended version of draft of the detailed plan foresees constructing the bridge in the part which is located between the Emajõgi River and Ihaste road, as much as possible on pillars, to ensure the preservation of flora and fauna of this area. The entire length of the bridge portion on pillars is 1220 m.
Source: Daily newspaper Postimees, 22.09.2006
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Impacts on the Natura site: According to the BirdLife International expertise 8, potential impact of the bridge during the construction phase includes destruction of some habitats and soil. This may result in temporary habitat loss for the qualifying species, but floodplain habitats are relatively resilient and can be restored. Ropka bridge would be close to the area used by G. Media and by several calling C.crex according to the survey carried out by A. Kuresoo in 2004. Impact of bridge during the operational phase depends largely on design. It could cause significant disturbance of the hydrological regime, if the bridge is built on an embankment. However, a bridge on pillars would probably cause little impact on the site´s hydrology. Some areas under the bridge or close to it would also lose their attractiveness as habitat for meadow birds. Another potential impact of the bridge and the associated traffic would be an increased noise and disturbance level. At 5 000 cars per day traffic, Reinen, Foppen and Meeuwsen (1996) found that meadow bird population densities declined by 12 56 % within 100 m. 9 At 50 000 car per day levels, 12 52 % population losses occurred. Some species appeared even more sensitive to disturbance, such as Limisa limosa, Haementopus ostralegus, Alauda arvensis, Anas clypeata and Vanellus vanellus. However, C.crex and G.media can often be found relatively close to roads. In addition, appropriate protection measures such as noise reduction walls can significantly reduce noise and disturbance. It should be mentioned that the BirdLife expertise quoted above focused primarily on the designation problems of the site. This expertise is not a result of proper Natura assessment but more likely a short hypothetical evaluation of possible impacts. Therefore, all differing aspects of environmental impacts must be determined and analyzed during the SEA proceeding. The expertise of the Estonian Ornithological Society (from January 2005) states that both Ropka and Ihaste meadows are equally important to G. media, as the meadows are part of a whole chain of habitats necessary for these species. If one or more parts of this longer habitat chain is removed, the whole chain will be extremely weakened in longer perspectives. 10. Applicable Articles of Directive 92/ 43/ EEC (Habitats Directive): Articles 6.3 and 6.4 of HD 11. Applicable national laws: Environmental Impact Assessment and Environmental Management Systems Act (EIA act) (in force since 3 April of 2005):
8Szabolcs Nagy (BirdLife International) : „Assessment of the Ropka Ihaste Floodplain for bird conservation”, 2007 9 According to modeled traffic frequency estimated number of cars per hour using the Ropka bridge in rush hour is 2634. But the number applies to situation where Ringtee (Outer ring ) bridge is not constructed. Page 14 of 57 Justice & Environment Natura 2000 Case Study Collection
The EIA act establishes the obligation of SEA or consideration of it´s initiation according to Directive 2001/42/EC. Special provisions of Natura assessment are foreseen in SEA proceedings in case the planning document in question is likely to have significant effects on the Natura 2000 network site.
Planning Act (in force since 1 January 2003): The Planning Act establishes provisions for spatial planning proceedings. At the time of initiation of Ropka bridge detailed plan, there were no procedural requirements in the Planning Act for assessing impacts of land use plans. Nature Protection Act (in force since 10 May 2004): The Nature Protection Act gives definition for term „Natura 2000 network site” and its protection purpose. The implementation provisions fixed the date of 1 May of 2007 before the temporary restrictions on economic activities on pSCI s and SPA s become valid and the proceedings of the protection rules of protected areas initiated before the enforcement of Nature Protection Act should be completed. List of sites of Natura 2000 network to be submitted to the European Commission – (Governments regulation No 615 k from 5 August 2004) Implementation of temporary restrictions of economic activity on the Natura 2000 network areas situated outside of protected areas. (Regulation of Minister of Environment, in force since 1 May 2004 – 1 May 2007) The regulation foresaw specific provisions for development activities on areas, lists of which have also been presented in the regulation (in case of certain activities, consent of environmental authorities was required). Although no provisions about EIA or SEA were foreseen in the regulation of restrictions, the regulation created a legal connection between areas named in the lists and the two ground directives of the Natura 2000 network, which referred to the obligation to preserve those areas before the protection status is determined. 12. Type of procedure (administrative and/or judicial): Administrative 13. Administrative procedural history/time-line: 13.1. Administrative proceedings:
The main administrative proceedings have been following: Proceedings of new comprehensive land use plan of Tartu initiated by Tartu City government on 09.05.2002, enacted on 06.10.2005 Proceedings for detailed land-use plan of Ropka bridge: • initiated by Tartu City government on 08.03.2005 • presentation and public hearings of initial planning solution 31.08.2006 • proceedings are ongoing
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SEA proceedings: • initiated by Tartu City government on 01.11.2005 • public display of SEA program 20.03 – 05.04.2006 • public hearing of SEA program on 05.04.2006 • approval of Tartumaa County Environmental Department of Ministry of Environment to the SEA program on 19.05.2006 • proceedings are ongoing Proceeding of the formation of Ropka-Ihaste Floodplain Nature Protection Area: • initiated by MoE on 25.08.2004 • public displays of the draft of protection rules of Ropka Ihaste Nature Protection Area • I public display: 13.01. – 01.02.2005 • II public display: 28.03 – 12.04.2007) • proceedings are ongoing
2004 2005 2006 2007 Program Initiated Initiated Initiated approved (Apr 04) (Mar 05) (Nov 05) ( May 06)
Proceeding of detail plan (since 2005) SEA proceeding
1. SPA/ pSCI list to I public display 2. SPA/ pSCI list II public the EC (13.1. – 01.02.) to the EC (March display (May 2004) 2007) (28.03 Proceeding of Ropka Ihaste 12.04) Nature Protection Area (since 2004) Time frame of administrative proceedings: 13.2. Description of SEA proceedings: SEA proceeding of bridge of Ropka detailed plan was initiated in 2005 and the SEA program (tool for scoping in SEA proceedings) set to public display on spring of 2006. Although NGOs proposed to carry out assessment of impacts according to Article 6.3 and 6.4 of the Habitats Directive, the City Government refused to include such obligation in SEA program. The position of City Government continued the position City had taken in process of selection of Natura 2000 sites – it strongly rejected the idea of Natura 2000 network area within bounds of City.
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The concrete position of Tartu City Government was following 10 : „Assessed will be the impact of bridge to the Ihaste meadow and to the Ropka-Ihaste area with temporary restrictions of economic activities. During the present SEA the assessment according to the Habitats Directive Article 6, which pre-supposes separate assessment and respondent procedures will not be carried out. Tartu City Government initiated the exclusion of the Ropka-Ihaste area with temporary restrictions of economic activity from the planned protected area.” However, in the same letter the Tartu City government accepted the proposal of the Estonian Green Movement “to assess the impact: to the SPA and pSCI of Natura 2000 network area, to protected species, to the integrity of the area and bring out the mitigation measures.” Therefore, although City government (by letter) refused to carry out Natura assessment, the presence of the Natura 2000 topic in the program is evident and represented in different chapters of the program, including descriptions of environmentally affected • species of Natura 2000 importance, • Ropka Ihaste Natura 2000 network area, • Ropka Ihaste Important Bird Area, • Ropka Ihaste area with temporary economic restrictions and significant environmental impacts in focus • impact to the Ropka Ihaste Natura 2000 area, • protected species and integrity of the area, • mitigation measures. The SEA program was approved by the Tartu County Environmental Department of MoE (TCED) on 19.05.2006. 11 One of the requirements of given approval was that in course of SEA, principles of § 45 of EIA Act must be followed. This provision provides for specific regulation of SEA on the Natura 2000 network area and obliges primary consideration of a site´s conservation objectives. However, TCED as a supervisor of the proceeding did not take any position on the rejection of NGO’s proposal concerning Natura assessment. It only remarked that „By compilation of SEA report substantial answers and reasons to the proposals made to the program should be given. ” In addition, the legal grounds for initiation of SEA included § 33 (1) p 4 and § 45 (1) p 1 of new EIA Act. The first requires SEA in cases where the strategic planning document is a basis for the activity likely to have significant effect on a Natura 2000 network area . The second states, as mentioned, that if the implementation of the strategic planning document has significant effect on a Natura 2000 network site, the compiling of SEA must be taken into consideration over all of the site´s conservation objectives . Hence, from legal point of view, the rejection of NGO’s proposal to carry out Natura assessment according to the Habitats Directive was absurd, because all legally binding grounds of SEA proceeding confirmed the obligations of Natura assessment.
10 Letter of Tartu City Government from 17.04.2006 to Estonian Green Movement 11 Tartu County Environmental Department´s letter No 41 12 1/2223 to Tartu City Government Page 17 of 57 Justice & Environment Natura 2000 Case Study Collection
In February 2007, environmental NGOs met with representatives of the Tartu City Government, County Environmental Department and SEA expert, during the course of which the NGOs pointed out that Natura assessment must be carried out or SEA proceedings should be suspended until the protection status and boundaries of the area are clear. The SEA expert informed the NGOs that there is no intent to carry out the assessment according to Habitats Directive (Natura assessment) and the City government officials concluded that the issue cannot be discussed before the SEA report is completed. In March 2007 the specified list of SPAs and pSCIs was sent to the European Commission, including one part of Ihaste missing from the initial list of SPAs and pSCIs. After that, no information about further SEA proceedings have been publicized. According to the initial timeframe of the approved SEA program, public display of the SEA report was planned for June 2006. 13.3. Alternative solutions, considered by authorities: Alternative I; a long bridge over the river Emajõgi and the rowing canal included in Tartu's general plan (access is provided to the area between the two water bodies) Alternative II; one bridge over the river Emajõgi and another over the rowing canal included in Tartu's general plan (if the canal is not built, then alternative II can be assessed without the second bridge) Alternative III; a bridge over the river Emajõgi and a raised viaduct over the floodplain (no canal) Alternative IV; a bridge over the river Emajõgi and a road dam over the floodplain (no canal) Alternative V; 0 alternative, Ropka bridge is not built 13.4. Alternative solutions pointed out by other stakeholders and not considered by the authorities: Proposals of Estonian Green Movement – FoE Estonia – in the open proceeding of SEA program: EGM proposal: add a 0+ alternative. Neither the Ropka bridge nor the new road in the harbor railway corridor are built, but the money saved is spent on mobility management and on expanding the proportion of public transport and non motorized traffic in the city. • possibly building a tramway between Annelinn or Ihaste and the city centre, • building car parks on the city borders, • implementing car sharing schemes, • traffic calming, • building cycle ways, • planning the locations of new housing developments, • improving access to local services, etc.
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City government reply: This alternative is a general planning and streets (transport) development plan question and should therefore be handled when the respective documents are drawn up and their strategic environmental impact is assessed. EGM proposal added an alternative: Build a smaller bridge and road reserved only for public and non motorized transport. Public transport (possibly tramway) would be carried over the Natura 2000 area with a long bridge and non motorized transport brought just over the river by a short bridge, continuing on ground level, in order to make walking and cycling a more convenient and attractive alternative. This alternative would help to realize the transport policy aims of the city of Tartu, would probably have a lower impact on the proposed Natura 2000 area than the proposed automobile bridge alternatives and a lower indirect negative impact on the wider impacted area and the city as a whole. City government reply: SEA is carried out only in regard to the activities described in the detail plan and in regard to the alternatives proposed and dealt with therein. 13.5. Mitigation measures, proposed or considered by the national authorities: As the SEA report is not completed, no such measures have yet been proposed or considered by national authorities. 13.6. Compensatory measures for nature conservation damage, proposed or considered by the national authorities: No such measures have yet been proposed or considered by national authorities. 13.7. Compensatory measures, pointed out by other stakeholder and not considered by authorities: No compensatory measures have yet been pointed out. 14. Outcome of the actions: The suggestions and proposals of Estonian Green Movement about alternative solutions were partly taken into account. The proposal to carry out appropriate assessment according to Habitats Directive was repeatedly rejected. 15. Remedies taken: On 12.02.2007, a meeting between the Estonian Fund for Nature, the Estonian Green Movement, the Estonian Ornithological Society, the Tartu City Government, the Tartu County Environmental Department and the SEA expert Kobras Ltd., took place on the Ropka bridge matter. Environmental NGOs inquired about the course of SEA, pointing out that Natura assessment must be carried out or SEA proceedings should be stopped until the protection status and boundaries of the area are clear.
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16. Judicial procedural history/time-line (if relevant): No judicial proceedings have yet been initiated. 17. Outcome of the actions: The SEA proceeding is pending. 18. Current status of case: SEA program was approved by Tartu County Environmental Department in May 2006. Although, according to the timetable of the SEA program, the SEA report had to be completed and publicized by the end of June 2006, the proceeding is still ongoing. Two different factors affect the situation: While Tartu is not capable of financing the construction of Ropka bridge from the city budget and the project is not eligible for the Cohesion Fund, the City Government must consider alternative solutions to improve the traffic situation within the city. The proceeding of the Ropka Ihaste Nature Protection Area is still ongoing. According to the information, given by the Tartu County Environmental Department (MoE), if the final consultation between the Law Department of MoE and the Tartu County Environmental Department is successful, the draft of Ropka Ihaste Nature Protection Area protection rules will be published soon. 19. Follow-up actions planned and their time-line (in case of ongoing matter, also estimated end date of case): Environmental NGOs of EKO (Council of Estonian Non governmental Environmental Organizations) monitor weekly Official Announcements, where SEA and EIA proceeding notifications are publicized. When the SEA report is completed, the NGOs will use their public participation process to influence the decision making. When the draft of Ropka Ihaste Nature Protection Area protection rules are published, environmental NGOs will monitor the proceeding and intervene if necessary. 20. Analysis of legal problems, concerning implementation of Article. 6.3. and 6.4. of Habitats Directive, conclusions: The detailed land use plan of “Ropka bridge, its gateways and planned street to the corridor of port railway and its surrounding area” is covered by the term „plan ” in the meaning of Article 6.3. of the Habitats Directive. It also falls under the scope of Annex II of Directive 85/ 337/ EEC as infrastructure project 10.b. or 10.d. Construction of the bridge has the purpose of improving traffic in Tartu City. Infrastructure which predisposes automobile traffic does not improve the well being of birds who abide in the same area. Thus the plan is „...not directly connected with or necessary to the management of the site... ”
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Although the SEA of Ropka bridge detailed plan is in the compiling stage and the report has not been published yet, the likelihood of significant affects of the proposed activity occurs in the SEA program. The program states that „ Proposed activity affects large amount of inhabitants of Tartu and has likely an effect to Natura 2000 network area and birds of Ropka- Ihaste .” The BirdLife expertise „ Assessment of the Ropka Ihaste Floodplain for bird conservation” from 2007 states that impact of the bridge largely depends on its design. It could cause significant disturbance of the hydrological regime, if the bridge is built on an embankment. A bridge on pillars would probably cause little impact on the site´s hydrology, but some area under the bridge or close to it would also denigrate its attraction as habitat for meadow birds. Thus, in the stage where all alternatives are open to assessment, it is correct to presuppose that building such a bridge may have significant effect on the site . According to these presumptions, the significant effect may occur individually . However, in the course of SEA, cumulative impacts will be also taken into account. SEA was initiated by the Tartu City Government on 1 November of 2005. Among other legal grounds of this initiation decision, it was pointed out that § 33 (1) p 4 of the EIA Act, which requires SEA in cases the strategic planning document is basis for the activity likely to have significant effect on Natura 2000 network area . § 45 (1) p 1 of the EIA Act states that if the implementation of a strategic planning document might have significant effect on a Natura 2000 network site, then the compiling of SEA must take into consideration above all, the site´s conservation objectives . Hence, it seems that this part of Habitats Directive Article 6.3. was implemented, but as already described in p. 13.2, in present case the City Government of Tartu has repeatedly rejected the proposal to carry out appropriate assessment according to Habitats Directive. The main issue in this case seems to be identification whether the area in question (Ihaste Meadows) can be considered as a „site” in the meaning of Article 6.3 and 6.4 of HD. First, there is question of whether the Ihaste Meadows has been listed as a Natura 2000 area. It was listed by the Government as „Natura 2000 area with restrictions of economic activity”, but was not included in the list of Natura 2000 areas sent to the European Commission in May 2004. On the other hand, part of the area has been listed by the Government as a Natura site in the specified list, sent to the Commission in March 2007. But this specified list was not officially approved or published by the Government. This legal confusion with the status of Natura sites (more specifically, status and relation between different national lists of Natura 2000 sites) has been creating misunderstanding since the accession to EU in May 2004. According to Article 7 of Habitats Directive, Article 6.3 and 6.4 apply to bird areas from the moment a Commission is informed from the selected list of SPAs. The obligation to carry out impact assessments (according to requirements of Article 6.3 and 6.4 of HD) should apply from the moment the Estonian Government informed the Commission about this list.
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In this respect, the question arises, what kind of governmental action can be considered as „informing” the Commission? It is clear that the first list of Natura 2000 sites, sent to Commission in May 2004, was approved by the Government, although several months later (in August 2004). But it does not include Ihaste Meadows. The second, specified list (which includes part of Ihaste Meadows) was sent electronically in March 2007, but not officially approved. Therefore, although the Natura 2000 site in question is a bird area, it is not clear whether this part of the area (Ihaste Meadows) can legally be considered as SPA or not . It is clear, however, that although the status of this specific area (Ihaste Meadows) is questionable, the assessment according to Article 6.3 and 6.4 of HD should have been initiated in any case , on the basis of fact that the planned activity can affect the rest of the Natura site (SPA), situated adjacent to the area in question . While it is not excluded that the impacts of proposed activity may be significantly negative, the provisions of Article. 6.4. shall apply . In the case of negative assessment, alternative solutions should be considered and, if there are no alternatives and the project must be implemented, it should be agreed how the building of the bridge impacts human health, public safety or beneficial consequences of primary importance for the environment . Ropka Ihaste pSCI contains Community priority habitat 9080 * Fennoscandian deciduous swamp woods. At the moment it is not publicly known whether the habitat will be affected by the project but it is all the more necessary to ascertain during the Natura assessment, the location of habitat and the possible impacts to it. 21. Lawyer and organization: Liis Keerberg, Estonian Fund for Nature (Eestimaa Looduse Fond, ELF) 22. Contact information: Estonian Fund for Nature P.O. Box 245 50002, Tartu Estonia Phone: + 372 7 42 8443 Fax: + 372 7 42 8166 E mail: [email protected]
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Czech Republic: R 55 motorway (Breclav – Otrokovice) 1. Title of case: R55 motorway (Breclav Otrokovice) 2. Matter of case: The planned highway R55, connecting city agglomeration at the south east of the Czech Republic close to the borders with Slovakia, is supposed to pass through the Special Protected Area (SPA) for birds named Bzenecká Doubrava – Strážnické Pomoraví. Although the plan for the construction of this highway seriously threatens the subject of protection within this SPA, within these decision proceedings the alternative path was not given any priority. 3. Country:
Czech Republic 4. Location:
South Moravia Region, city of Bzenec 5. Geographic dimension:
Regional 6. Initiator of case:
• Czech Society for Ornithology (CSO), member of BirdLife Int., http://www.cso.cz • Children of the Earth, http://www.detizeme.cz 7. Participants involved: • The Road and Motorway Directorate of the Czech Republic, state organization providing the construction of roads, http://www.rsd.cz • The Ministry of Environment of the Czech Republic as an environmental protection body, http://www.env.cz/ ;
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8. Other involved parties and/or stakeholders: • Environmental Law Service, a non governmental organization involved with protection of the environment and human rights, http://www.eps.cz . • The Agency for Nature Conservation and Landscape Protection as a specialized state organization, http://www.aopk.cz/ ; 9. Background facts: 9.1. Account of facts: The essence of the case is a conflict between the plan for development of four lane highway R55 and the protection of SPA Bzenecká Doubrava – Strážnické Pomoraví. This construction is to pass through the protection zone and significantly impact certain species of birds. Although this fact was known in the EIA process and while evaluating project according to Article 6 (3) and (4) of the Habitats Directive (92/43/EEC) the existing alternatives of routing the highway outside of the SPA were not taken into consideration. During the project assessment, mitigation measures were accepted, yet according to expert studies of NGOs, these measures will not significantly lower the negative impact of the construction on the subject of SPA protection. 9.2. Description of the Natura 2000 locality in question General description of the site(s) affected: Name of the site:
SPA Bzenecká Doubrava – Strážnické Pomoraví Nearest town/city: Bzenec Surface area: 11 725 Ha Special Protection Area:
Yes Proposed site of European Community importance:
No
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Map of the site or sites affected:
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Principal habitats and species directly affected
Subject of protection in the SPA Bzenecká Doubrava – Strážnické Pomoraví are the following bird species: • White Stork (Ciconia ciconia) • Marsh Harrier (Circus aeruginosus) • European Nightjar (Caprimulgus europaeus) • Middle Spotted Woodpecker (Dendrocopos medius) • Syrian Woodpecker (Dendrocopos syriacus) • Woodlark (Lullula arborea)
9.3. Description of the investment plan and background facts and its impacts on the Natura site R55 is a highway which will connect Olomouc with Břeclav. The total length will be 86 km and currently there are only approx. 2 km in operation by Olomouc and another approx. 2 km by Otrokovice as a part of this city’s ring road. The plan for the construction of the R55 Highway dates back to 1993. The construction is justified by excessive traffic on existing roads in a relatively densely populated area near the Morava River. The route is not part of the TEN T network; it is parallel to its Gdansk Brno Vienna axis. Important Birds Area (IBA) and SPA Bzenecká Doubrava – Strážnické Pomoraví is found in the South Moravia Region, in the vicinity of the lower waterway of Morava between the towns Vracov, Bzenec, Moravský Písek, Veselí nad Moravou and Strážnice. As the name already tells us, this is an area comprised of two separate natural units. Bzenecká Doubrava includes pine forests planted in place of the original oak woods, Strážnické Pomoraví of the flood plain of Morava River with the remains of alluvial forests. The natural axis of the area is up to now for the greater part unregulated Morava River, into the river basin of which this territory belongs. The construction of the R55 highway seriously endangers the populations of the European Nightjar and Woodlark. The road, in a distance of around 12 km, should pass through an Artificial tube, from a greater part made of transparent material across the wood complex Bzenecké Doubravy along the existing railroad corridor Břeclav – Přerov. The result of a study performed by the Czech Society for Ornithology (ČSO) evaluating the endangerment of target groups of birds add to this that the route passing through the bird area would significantly negatively impact the criteria populations of the European Nightjar and Woodlark (fragmentation and destruction of biotopes, noise load, light pollution). In the immediate vicinity of the planned road there are also two numerous colonies of Sand Martin and almost half of the nesting districts of Hoopoe and Northern Wheatear, populations which (from the viewpoint of quantity) belong among the most significant within CZ. The same conclusion was made by the preparer of the alternative evaluation on the territory of NATURA 2000 system, which was prepared as per the order of the Environmental Law Service.
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10. Applicable Articles of Directive 92/43/EEC (Habitats Directive): Articles 6(3) and 6(4) of the Habitats Directive 11. Applicable national laws: a/ Act No. 114/1992 Coll., on nature conservation and landscape protection, and Implementation Decree No. 395/1992 Coll. Provision of Sec 45i of the Act defines the evaluation of projects, which can have an impact on SCI or SPA. This provision of the Act assumed the amendment by Article. 6 (3) and (4) of the Habitat Directive. B) Act No. 100/2001 Coll., on environmental impact assessment (EIA) Within the Czech Legal code, the evaluation of impact of intent on the NATURA 2000 System territory is part of the EIA process. 12. Type of procedure (administrative and/or judicial): Administrative and judicial 13. Administrative procedural history/time-line: 13.1. Administrative proceedings: a) The construction plan for the R55 Highway was created in 1993, most likely following an initiative from the Road and Motorway Directorate of the Czech Republic. Reason for the construction of a new capacity road was probably to take some pressure off the overloaded road routes (especially/I55) in a relatively densely populated area along the Morava River. b) In March of 1994, the R55 Highway route became part of the approved regional land use plan for the Zlín agglomeration. In 1998, the second part of the R55 route was anchored in the regional land use plan for the Hodonín district. c) The entire R55 route is divided into 13 partial segments (constructions). Currently two small sections are in operation: 1.4 km by Olomouc and 3km long SE ring road of Otrokovice (commissioned in 2006). However, none of the parts of the road completed to date demand that the route lead through the SPA Bzenecká Doubrava Strážnické Pomoraví area. d) On Dec 14th 2005 the Government of the Czech Republic passed decree no 21/2005 Coll., which declared the SPA Bzenecká Doubrava – Strážnické Pomoraví. e) The EIA process for the section of R55 construction through SPA Bzenecká Doubrava Strážnické Pomoraví was initiated on Sep 9th 2005. The EIA expert report, including the Natura 2000 expert report, were published on March 31st 2006. The public consultation was held on May 30th, 2006. The final statement of the Department of EIA and IPPC of the Ministry of Environment was given on June 30th, 2006 and it was published on the website of the Ministry of Environment on July 4th, 2006
Page 27 of 57 Justice & Environment Natura 2000 Case Study Collection f) In the territory SPA Bzenecká Doubrava – Strážnické Pomoraví there are three construction sections of the R55 (R5509 – R5511). In all these cases a process of evaluating the construction’s impact on the environment was performed, including the evaluation of impact on SPA by a method according to Sec 45i of Act no. 114/1992 Coll. That was concluded with a final position of the Ministry of Environment of Czech Republic from June 30th 2006. g) In 2006, a land use ruling was issued for the construction of R55 5503 (SE ring road Otrokovice) and on Jan 11th 2007 this construction obtained a building permit. If realized, it will threaten the alternative option outside of the birds area which would no longer tie into this construction. h) Currently a project documentation for the construction of R55 through the SPA is being processed. The issuance of land use ruling and building permit are to follow. Timeline
13.2. Description of EIA EIA process for the section of R55 construction through SPA Bzenecká Doubrava Strážnické Pomoraví was initiated by the developer on Sep 9th 2005, less than 4 months before the official declaration of SPA in the government decree no 215/2005 Coll. MoE in the closing of the screening proceedings, decided about the processing of the EIA Expert report, along with others. Included, was the requirement for processing of the real option of intent, which would eliminate impacts on localities of the Natura2000 system, possibly lessening these impacts if their complete elimination is not possible. The EIA Expert report was published on March 31st 2006 and the expert report assessment on May 12th 2006. The public discussion on this assessment and Expert report took place on May 30th 2006. The presentations for civic associations were expressed by Children of the Earth and the Czech Ornithological Association (ČSO). Both organizations pointed to the fact the impact of options leading outside of the area were not evaluated. Attached to the statement by the Children of the Earth was an independent authorized naturalized evaluation (1). Although the Ministry of the Environment of the Czech Republic originally required such evaluations, in the end it issued an approval of the route R55 though the SPA.
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The investor has settled the requirement to find an option eliminating the negative impact on the Natura 2000 during the course of the EIA process by submitting option B. This option passes through the most precious SPA sections in a transparent tube for a distance of approx. 12 km. The route of the road remains practically unchanged. The proposed measure – tube solves negative impacts on subjects of protection only partially, lowering the risk of direct collision of birds with passing cars, although it only islightly solves the noise and light pollution. These facts were not sufficiently described in the evaluation according to Section 41i of Act No. 114/1992 Coll. (evaluation of impacts on the NATURA2000 system is in CZ an integral part of the EIA process). This work was of such low quality that, based on complaints by NGOs, its preparer’s license to perform evaluations of project impacts on the NATURA2000 system was later withheld by the Ministry of Environment of Czech Republic. However, regardless of the discovered shortcomings, the Ministry has not reassessed its previous approval. Fundamental shortcomings of the mentioned natural evaluations were verified by an independent opinion, which was prepared by another licensed preparer on the initiative of EPS. In addition, this opinion had the objective of evaluating the official options and alternative options from the preliminary proposal by Children of the Earth. It was clearly proven that the impact of alternative options on the birds area compared to the official route are not significant. The final statement of the Department of EIA and IPPC of the Ministry of Environment was given on June 30th, 2006. This stage is to be followed by the general planning proceedings on the allocation of the road and a construction permit will be issued before the construction starts. The construction is expected to start in 2012 and to finish in 2015. On August 18th, 2006 the CSO sent a letter to the Department of EIA and IPPC of the Ministry of Environment protesting against insufficient response to comments raised at the public consultation and in the written statement sent by the CSO; namely the effects of noise disturbance on birds were not sufficiently evaluated, that a real alternative was not assessed and the contradiction between claiming that there is no negative impact of “alternative B” while at the same time prescribing compensatory measures. On September 20th, 2006 Departments of EIA and IPPC of the Ministry of Environment responded to the above letter, by letter, claiming that “the EIA process was carried out in conformity with the law”. 13.3. Alternative solutions, considered by authorities: Zero Option – presumes the construction of the previous (northern) section R5508, the concentrated traffic would exit the highway by Moravský Písek and continue along the existing route though Bzenec, Strážnice do Rohatce. This option has significantly lower impacts on the SPA than the supported solution, although it is quite unacceptable from the perspective of impacts on health in the effected towns and from the point of view of traffic. Option A – original option stated in the EIA Announcement, in comparison with option B the road is not covered by a tube and in the section Bzenec – Bzenec Přívoz the route sweeps back to the existing road II/426, this difference in placement of the route is not fundamental from the perspectives of impacts on SPA. From the perspective of impacts on the NATURA2000 system this option is the worst.
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Option B – official route, recommended by the Ministry of Environment of Czech Republic in the final standpoint of the EIA. Pass through the birds area is in great part designed in a tube made from concrete, glass, and mesh with the length of approx 12 km. Negative impacts on bird species (especially the European Nightjar Caprimulgus europaeus ), according to the statement by ČSO as well as the conclusions of the independent evaluation, are still significantly negative. The proposal of the Regional Administration of the Conservation Zone(CHKO) Bílé Karpaty – CHKO in reaction to the EIA Expert report proposed to prepare another option, which would pass through the bird area though a deep groove, which would eliminate the most significant impacts. This proposal was not accepted. 13.4. Alternative solutions pointed out by other stakeholders and not considered by the authorities: NGOs repeatedly proposed to evaluate the options leading around the central SPA part. The non governmental organization Children of the Earth in the EIA process had already submitted a feasible option leading along the left bank of the Morava, which intersects the bird area only in the border zone with a length of approx 2 km. Independent NATURA 2000 evaluation confirmed that this option does not have significant impacts on species for which the bird area was declared. The association NGOs (Children of the Earth, ELS, Veronica) initiated processing of a technical study of R55 outside of SPA (2). The study was based on a preliminary proposal made by Children of the Earth and was to verify the feasibility of this option. The study audited two partial options and recommended utilising the route along the left bank of the Morava. The architect during the preparation collaborated with environmental experts, common conflicts were continuously verified in the terrain and even the Administration of CHKO Bílé Karpaty gave it their approval. The same requirement as NGO (evaluation of an option around the SPA) was also expressed by state administration bodies; Administration of CHKO Bílé Karpaty (today AOPK CZ, administration of CHKO Bílé Karpaty). 13.5. Mitigation measures, proposed or considered by the national authorities: As the main mitigation measure, the investor submitted a proposal in EIA expert report for a 12km long tube partially covering the road. In the EIA final statement the nature conservation body proposed further mitigation measures (relative to the subject of protection within SPA): • to preserve trees and other shrubbery for the reason of protecting nesting birds • height of the side cover along both sides of the road must be at least 2.5 m, the space between the roof of the tube and this cover must be constructed of mesh with the maximum loop size of 15 mm. • the road owner will regularly inspect and maintain equipment preventing the intrusion of animals into the area of the road body. These mitigation measures were included in the EIA final statement and are obligatory for the road developer (must be transposed into the building permit).
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13.6. Compensatory measures for nature conservation damage, proposed or considered by the state authorities: EIA statement in relation to subject of protection imposes: • compensation for loss of forest in the form of plantations in other localities with a similar ecotype, if at all possible in full extent of the planned exploitation (approx 75 ha). • Wood composition of plantation and the station will be selected as such that it is an effective compensation, supporting the ecological stability of the territory. 13.7. Compensatory measures, pointed out by other stakeholder and not considered by authorities: The EIA Expert report preparer further proposed measures (focused especially on forest management), which would improve conditions for protection within the SPA. Performance of these measures was emphasized by the preparer as fundamental for sustaining all species. The necessary measures, according to the Expert report preparer, should be performed before the start of construction. However, these compensatory measures did not survive the EIA final statement. 14. Outcome of the actions: Nothing significant was accepted from the objections and suggestions of NGO and parts of the administrative bodies (CHKO). 15. Remedies taken: Children of the Earth have turned to the courts with a lawsuit regarding the final EIA statement. During the court proceeding ČSO and Children of the Earth submitted a complaint to the European Commission in May of 2007 for improper application of Community law. 16. Judicial procedural history/time-line (if relevant): The lawsuit against the EIA final statement was submitted by Children of the Earth on Sep. 11th 2006. However, it was rejected by the courts with an explanation that the court cannot review the EIA final statement for procedural reasons 12 . Children of the Earth have defended themselves against this ruling by appealing to the Highest Administrative Court on Feb. 9th 2007. This appeal was again rejected for the same reasons on Aug. 29th. The unwillingness of the Czech Courts to review the EIA final statement is the subject of NGOs complaint to the European Commission.
12 Czech administrative judiciary can review only „decisions“ given by the state authorities. The EIA statement is not percieved as „decision“ by the courts, mainly because it must be followed by final building permit Page 31 of 57 Justice & Environment Natura 2000 Case Study Collection
17. Outcome of the actions: The legal instruments used did not lead to the reassessment of the steps taken to date by the state authorities. 18. Current status of case: Currently, there is probably an expert report being prepared for the processing of the project construction. A significant threat is that the construction of an R5503 section (SE ring road of Otrokovice) would complicate or actually make impossible the alternative option along the left bank of the Morava outside of SPA. There was a building permit issued for the construction of R5503 in January 2007 and the work could start in 2008. The construction of this section and R55 between Otrokovice and Staré Město by Uherské Hradiště in general is marked as a priority and has a huge lobby of support from the representatives of towns in the Zlín Region. The construction of R55 is (in its entirety) included in the Operational Plan Transportation of Czech Republic for years 2007 2013, an EU contribution is expected and the work is planned for 1/2208 – 12/2015. 19. Follow-up actions planned and their time-line (in case of ongoing matter, also estimated end date of case): Individual proceedings will be initiated in the following months for the approval to place the R55 construction. It is presumed that this process will be attended by the stated NGOs, which can with regards to the expected appeals and lawsuits significantly postpone the issuance of the final permit. However, a specific time horizon cannot be currently estimated. Regarding ongoing complaints to the European Commission it is impossible to estimate the end date. 20. Analysis of legal problems, concerning implementation of Article 6.3 and 6.4 of Habitats Directive, conclusions: Conflict with Article. 6 (3) and (4) of the Habitat Directive: The construction of the R55 Highway is regarded as a “project” in the meaning of Article 6.3 of the Habitats Directive. Construction of this kind is also a “project” in the meaning of Annex I of Directive 85/337/EEC. The project is not necessary for the management of the site, but is likely to have a significant effect thereon. According to expert studies submitted by NGOs, the construction will have a very negative impact on the SPA Bzenecká Doubrava – Strážnické Pomoraví. Thus the project was subject to assessment according to Article. 6 (3) and its implications, for the site should have been assessed in view of its conservation objectives. In the given case, an environmental impact assessment does not comply with requirements of Article 6 of the Habitats Directive. Two options of the R55 motorway (differing only in the design but following the exact same route crossing the SPA) were assessed (var. A and B). These options cannot be considered genuine alternatives.
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Real alternative routes were neglected in the assessment and it has been pointed out by various entities that the assessment was carried out in an incompetent and tendentious way, driven by the politically motivated purpose of allowing the motorway to run through the SPA without further delays. By not seeking an alternative without impact on the NATURA2000 site and by obviating the due process set by the Habitats Directive, the obligations under Article 6 (3) and (4) of the Directive were breached by the Ministry of Environment of the Czech Republic. 21. Lawyer and organization: Pavel Doucha Ekologický právní servis (Environmental Law Service) 22. Contact information: Ekologický právní servis (Environmental Law Service) Převrátilská 330 390 01 Tábor [email protected] www.eps.cz 23. Cited Documents: 1) Expert statement to the documentation from the process of evaluating the impact on the highway R55 environment in the section Moravský Písek Rohatec, with emphasis on evaluation according to Section 45i of Act No. 114/1992 Coll., as amended. Volf O., June 2006. 2) Search studies of the route for highway R55 outside of the bird area Bzenecká Doubrava – Strážnické Pomoraví. Kalčík J., April 2007. 3) Traffic study of options for highway R55 and the concept of rapid connection Brno Vienna. Dufek J., September 2007.
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Hungary: Municipal Sewage Treatment Plant of Mártély 1. Title of case: Municipal Sewage Treatment Plant of Mártély 2. Matter of case:
Water management permitting of the construction of a municipal sewage treatment plant at a Natura 2000 area 3. Country: Hungary 4. Location:
Village of Mártély 5. Geographic dimension:
Local 6. Initiator of case: • Hódmezővásárhely Megyei Jogú Város Önkormányzata (Municipality of Hódmezővásárhely) 7. Participants involved: • Mártély Község Önkormányzata (Municipality of Mártély) • Alsó Tisza vidéki Környezetvédelmi, Természetvédelmi és Vízügyi Felügyelőség (Lower Tisza Region • Environmental, Nature Conservation and Water Management Inspectorate) • Környezetvédelmi, Természetvédelmi és Vízügyi Főfelügyelőség (Environmental, Nature Conservation and Water Management Inspectorate General)
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8. Other interested parties and/or stakeholders: • Kiskunsági Nemzeti Park Igazgatóság (Kiskunság Nature Conservation Directorate) • Tisza Marosszögi Vízgazdálkodási Társulat (Tisza Marosszög Water Management Association) 9. Background facts:
9.1 Account of facts:
In 2006, the Municipality of Mártély received a water management permit for the construction of a municipal sewage treatment plant at a Natura 2000 area. After an appeal by the Municipality of Hódmezővásárhely, the permit was upheld by the Environmental and Water Management Inspectorate General in a second level administrative procedure. The Municipality of Hódmezővásárhely then filed a lawsuit against the Environmental and Water Management Inspectorate General and the procedure is currently pending before the court 9.2 Description of the Natura 2000 locality concerned General description of the site(s) affected:
Name of the site(s)
Vásárhelyi és Csanádi gyepek Nearest town/city Town of Hódmezővásárhely Surface area 2,232 ha Special Protection Area? Yes, Vásárhelyi és Csanádi gyepek Proposed site of European Community importance? Yes HUKM20001
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Map of the site or sites affected
municipal wastewater treatment plant
oxbow lake called Natura 2000 site „Mártély Dead Vásárhelyi és Csanádi gyepek Tisza” (HUKM20001)
River Tisza
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Principal habitats and species directly affected (mark the priority habitats with *), if available
9.3 Description of the investment plan and its impacts on the Natura site: The investment covers the construction of a municipal wastewater treatment plant. The treatment plant has a capacity of 205 m3/day that equals 1,667 population equivalents (p.e.). It is supposed to receive 60 80 m3 of wastewater daily that equals an approximate 100 kg/day BOI5 load. The treatment process involves the adding of chlorine and filtering of the treated wastewater.
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Originally, the treatment plant was planned to have its treated wastewater released into the River Tisza. But because this design would have necessitated the building of a 5 km long pipeline with a relatively high cost, the Municipality of Mártély opted for a more cost effective solution, releasing the emission directly into a neighboring excess inland water canal. The treatment plant and the canal are both located on an area that is protected by three parallel protection schemes, such as national law, Ramsar Convention and Habitats Directive. In addition, the canal flows into an oxbow lake named Mártélyi Holt Tisza (Mártély Dead Tisza) that once was a branch of the River Tisza. Shores of this oxbow lake serve people living in the area as a popular holiday resort and designated bathing site. Impacts of the treatment plant and its emissions on the Natura 2000 area were not investigated in the first level administrative procedure by the Lower Tisza Region Environmental, Nature Conservation and Water Management Inspectorate, nor in the second level administrative procedure by the Environmental, Nature Conservation and Water Management Inspectorate General. The Municipality of Hódmezővásárhely has commissioned an independent nature conservation NGO to assess the potential impacts of the treatment plant on the Natura 2000 area. The findings of the ecological study are as follows: • 25 species of fish and 23 species of birds that are listed in the Habitats Directive were discovered in the Mártély Dead Tisza • the majority of the species are sensitive to changes in water quality, thus the fauna are considered sensitive and endangered • the treated wastewater that is eventually emitted into the oxbow lake, means an additional organic material load which may result in eutrophication of the water 10. Applicable Articles of Directive 92/43/EEC (Habitats Directive): • Article. 2 Par. 2 • Article. 6 Par. 1 • Article. 6 Par. 2 • Article. 6 Par. 3 • Article. 6 Par. 4 11. Applicable national laws: Act No. 53 of 1996 on the Conservation of Nature: sets the basic rules of nature conservation in Hungary, including definition of and the protection requirements applying to Natura 2000 areas Act No. 57 of 1995 on Water Management: sets the basic rules of water management in Hungary, including permitting in the field of water management
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Government Decree No. 275 of 2004 on Nature Conservation Sites of Community Importance: transposes the EU Habitats Directive, including terminology, process of Natura 2000 area designation, conservation rules, exceptions, responsibilities of competent authorities and (in the annexes) the list of species, habitats, and sites Government Decree No. 2 of 1996 on Exercise of Water Management Authority Powers: defines the rules of water management permitting including permit for construction, permit for operation, etc. Decree No. 45 of 2006 of the Minister or Environment and Water Management on the Pieces of Lands affected by Nature Conservation Sites of Community Importance: proclaims the parcel identification numbers falling under the scope of Natura 2000 network Decree No. 18 of 1996 of the Minister of Transport, Telecommunication and Water Management on Form and Appendices of Water Management Permit Applications: defines the detailed technical rules of permit application 12. Type of procedure (administrative and/or judicial):
Administrative and judicial 13. Administrative procedural history/time-line: 2005: The Municipality of Mártély is granted a first level water management permit by the Lower Tisza Region Environmental, Nature Conservation and Water Management Inspectorate for the construction of a municipal wastewater treatment plant. According to the original design, the treated wastewater is to be released into the River Tisza August 14, 2006: The Municipality of Mártély is newly granted a first level water management permit by the Lower Tisza Region Environmental, Nature Conservation and Water Management Inspectorate for the construction of a municipal wastewater treatment plant. The renewed permit was due to the change in design that resulted in the release of the treated wastewater into a neighboring excess inland water canal situated on a Natura 2000 area and eventually flowing into an oxbow lake of the River Tisza 2006: The Municipality of Hódmezővásárhely submitted an appeal against the first level water management permit based on the following reasoning: • the applicant omitted attaching to the permitting documentation a consent for the use of the excess inland water canal from the Tisza Marosszög Water Management Association, the manager of the canal; • the Lower Tisza Region Environmental, Nature Conservation and Water Management Inspectorate has not investigated the impacts of the treated wastewater emission on the protected nature conservation areas; • the Lower Tisza Region Environmental, Nature Conservation and Water Management Inspectorate failed to involve the Kiskunság Nature Conservation Directorate (the manager of the protected areas in the region) in the decision making process;
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• the release into the aforementioned canal of the treated wastewater will deteriorate the ecological status of the affected Natura 2000 areas; • the final recipient of the treated wastewater (oxbow lake Mártély Dead Tisza) is a designated bathing site. Therefore any release of pollutants therein will endanger the health of an indefinite number of people and will cause economic losses for both private individuals having economic interests there and for the Municipality of Hódmezővásárhely. 14. Outcome of the actions:
January 30, 2007: Municipality of Mártély is granted a second level water management permit by the Environmental and Water Management Inspectorate General for the construction of a municipal wastewater treatment plant. An additional criterion was inserted into the permit, requiring the applicant not to deteriorate the quality of bathing water to an extent that it is not suitable for bathing. 15. Remedies taken:
March 13, 2007: Municipality of Hódmezővásárhely filed a lawsuit at the Csongrád Country Court against the second level water management permit of the Environmental, Nature Conservation and Water Management Inspectorate General; the reasoning identical with that already submitted in the administrative appeal. 16. Judicial procedural history/time-line:
September 4, 2007: Csongrád County Court holds the first hearing in the case. Due to procedural deficiencies of informing a potential friend of the defendant, parties to the case are unable to express their views. September 13, 2007: the plaintiff Municipality of Hódmezővásárhely submits a detailed reasoning to the court with the following arguments: • due to the omission of the involvement of the competent nature conservation agency, the defendant Lower Tisza Region Environmental, Nature Conservation and Water Management Inspectorate has not revealed the underlying facts in the case, a serious breach of the Administrative Procedural Act; • the defendant breached lower level nature conservation, as well as water management norms that prohibit the release of treated wastewater into protected areas; • the defendant breached the Habitats Directive directly applicable in the case in a number of ways: • there has been no appropriate assessment of the implications of the investment for the site, in view of the site’s conservation objectives • it has not been ascertained that the investment will not adversely affect the integrity of the site concerned;
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• there has not been any reference to considerations relating to human health or public safety, to beneficial consequences of primary importance for the environment or to other imperative reasons of overriding public interest, although a site hosting priority natural habitats and/or priority species is involved; • an opinion from the Commission has never been obtained. September 25, 2007: Csongrád County Court holds the second hearing in the case November 8, 2007: Csongrád County Court holds the third hearing in the case November 29, 2007: Csongrád County Court holds the fourth (and last) hearing in the case and announces the judgment 17. Outcome of the actions: The Csongrád County Court upheld the water management permit of the Municipality of Mártély finding it lawful and being in conformity with Community environmental law. The court (in our view, mistakenly) stated that the construction of a sewage treatment plant on a Natura 2000 site has no environmental impacts, therefore the issuing of the construction permit for the plant did not necessitate a prior Natura impact assessment to be lawful. The court also recommended the plaintiff initiate a new procedure against the operation permit of the plant (not yet issued) because it is the operation of such a plant that has impacts on the environment. 18. Current status of case:
Judgment made by the Csongrád County Court on 29 November 2007. 19. Follow-up actions planned and their time-line (in case of ongoing matter, also estimated end date of case:
Because the court upheld the water management permit of the Municipality of Mártély, the plaintiff Municipality of Hódmezővásárhely is planning to • submit a request for extraordinary remedy at the Supreme Court • a request for preliminary ruling to be made by the ECJ will probably be submitted • submit a complaint to the European Commission, the Parliament of the EU Petition Committee and the Secretariat of the Ramsar Convention • undertake a supportive media campaign. 20. Analysis of legal problems, concerning implementation of Article 6.3 and 6.4 of Habitats Directive, conclusions:
Habitats Directive is transposed into Hungarian law by two major pieces of legislation:
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• Act No. 53 of 1996 (amended) on the Conservation of Nature (hereafter: Nature Conservation Act) • Government Decree No. 275 of 2004 (amended) on Nature Conservation Sites of Community Importance (hereafter: Natura 2000 Decree). The actual list of parcel identification numbers falling under the scope of Natura 2000 network is proclaimed by the Decree No. 45 of 2006 of the Minister or Environment and Water Management on the Pieces of Lands affected by Nature Conservation Sites of Community Importance (hereafter: List of Sites). Decree). Article. 6 Par. 3 of the Habitats Directive ”Any plan or project …” The construction of the aforementioned sewage treatment plant is definitely covered by the term “project”. Therefore, with regard to the implementation of Article. 6.3 of the Habitats Directive, it falls under the scope of the Directive. The project also falls under the scope of the Hungarian EIA Decree but in spite of this, as an aggravating circumstance, no EIA was performed whatsoever before the construction. ”… not directly connected with or necessary to the management of the site …” Since the construction and operation of the sewage treatment plant is obviously not part of the conservation management of the (proposed) site (since it is intended to treat the municipal sewage of the village of Mártély and to release it into the Natura 2000 area that is clearly contrary to preserving the favorable conservation status of the proposed site), it falls under the scope of Article. 6.3 of the Habitats Directive.
”… but likely to have a significant effect thereon, …” Deciding the significance of the likely impacts must be objective, and for this reason, Annex III of Directive 85/337/EEC (amended) provides a good guidance. Having used the aspects listed therein, we may conclude that both the characteristics of the project (use of hazardous substances i.e. chlorine) and the location of the project (at a Natura 2000 (proposed) site) qualify it as having likely significant impacts.
”… either individually or in combination with other plans or projects, …” The sewage treatment plant alone meets the aforementioned criteria, without any combination with other projects. ”… shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives.” The major shortcoming of the underlying procedure is the lack of investigation of how the construction and operation of the sewage treatment plant will make an impact on the Natura 2000 area. Among the 20 different requirements towards the treatment plant operator set by the first level water management permit (upheld by the second level permit), not one single requirement deals with nature conservation issues.
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But the first level and the second level environmental agencies concluded that there would be no harmful impacts made to the Natura 2000 area by the treatment plant without having involved the competent expert nature conservation agency into the process of permitting. In addition, although the project falls under the scope of the Hungarian EIA Decree, no environmental impact assessment was undertaken by the project developer. We may conclude that the project was not subject to an appropriate assessment and thus was permitted contrary to the provisions of the Habitats Directive: ”In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned …” Naturally stemming from what has been said above, the competent authorities could not ascertain the lack of adverse impacts since there was no appropriate assessment of the impacts at all. We may conclude that the competent authority could not ascertain that the project will not adversely affect the integrity of the site concerned, therefore acted contrary to the provisions of the Habitats Directive when permitting the treatment plant. “… if appropriate, after having obtained the opinion of the general public.” There was absolutely no public participation in the case, or the informing of the public about the planned investment. Not even the Municipality of Hódmezővásárhely whose territory covers the Mártély Dead Tisza oxbow lake (the final recipient of the emission of the treatment plant) was informed about the possibility of participation in the first level procedure, and it was only remedied in the second level procedure. Article. 6 Par. 4 of the Habitats Directive ”4. If, in spite of a negative assessment of the implications for the site …” There was absolutely no assessment of the implications for the site therefore this provision of the Habitats Directive was not applied. ”… and in the absence of alternative solutions, …” Originally there was a clear alternative solution (releasing the treated wastewater from the treatment plant into the River Tisza via a 5 km long pipeline) that was permitted previously. However, this alternative was reconsidered because of its more costly nature, which resulted in permitting the release of treated wastewater into the Natura 2000 area. ”… a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, …” There might be some arguments that support that such an investment is in the public interest. Nevertheless, reference has been made to this clause neither by the project developer nor by the competent authority. ”… the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected.”
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Because no impacts on the Natura 2000 area were assessed in this phase of the process (according to the competent authority, it is only in the permitting of operation phase where nature conservation issues have relevance) the authorities have not taken any compensatory measures. ”It shall inform the Commission of the compensatory measures adopted.” Consequently, based on what has been said before, this clause was not applied in this case. “Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest.” Since the Vásárhelyi és Csanádi gyepek (proposed) site is a special area of conservation, this clause could have been referred to by either the project developer or the competent authority. However, it was never done. The reason for the lack of such reference is that the permitting procedure was not based on the investigation of the impacts on the Natura 2000 area. Consequently, both the project developer and the competent authority felt it superfluous to refer to any of the aforementioned considerations, no matter how well based they might have possibly been. Needless to say, there was no Commission opinion obtained prior to the permitting of the treatment plant in question. As an overall conclusion, we can reaffirm what has been said in the Natura 2000 case study of the year 2006. There are serious implementation problems regarding the Habitats Directive and the projects, including this one, whose permitting started after the accession date of Hungary to the EU (May 1, 2004), there are no exceptions. As we see from this example, occasionally the most basic applications of the Habitats Directive are seriously challenged in lower level environmental administration. 21. Lawyer and organization: dr. Csaba Kiss EMLA Association 22. Contact information: dr. Csaba Kiss EMLA Association H 1076 Budapest, Garay utca 29 31. I/1., Hungary tel/fax: +36 1 322 8462, +36 1 352 9925 e mail: [email protected] , [email protected] , [email protected] URL: www.emla.hu
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Austria: Lauteracher Ried 1. Title of case: Lauteracher Ried 2. Matter of case:
Construction of the federal S 18 dual carriageway 3. Country:
Austria 4. Location:
In the most western Province Vorarlberg 5. Geographic dimension:
European 6. Initiator of case: • BirdLife Austria together with the Austrian Local Authority of Wolfurt and the Swiss Local Community Au through a complaint to the European Commission 7. Participants involved: • European Commission • Federal Chancelor’s Office • Provincial Government of Vorarlberg • Local Authority of Wolfurt, Lustenau, Dornbirn • Swiss Local Authority Au • BirdLife Austria • WWF Austria
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8. Other interested parties and/or stakeholders: None known 9. Background facts: 9.1. Account of facts Three years before Austria entered the European Union an initial application for the road construction project in question was submitted, in 1992. After resubmission in March 1994, the procedure led to a determination of the route in an order issued by the Federal Minister for Economic Affairs in 1997. Later nature conservancy consent for the planned road was granted in 2003 bound to the route determined. In the meantime, after Austria had joined the European Community in January 1995, during the same year the ‘Lauteracher Ried’ area was notified by the Commission as an SPA. The ‘Soren’ and ‘Gleggen Köblern’ sites are not part of the SPA. The Commission examined the project in response to the combined complaint and in 2001 sent a request for information to the competent Austrian authorities. Since the pre litigation replies from the Austrian Government did not convince the Commission that its objections had been met, it brought an action on 12 May 2004. The main problematic issues were: • the alleged failure of Austria to include in the designated special protection area ‘Lauteracher Ried’ the ‘Soren’ and ‘Gleggen Köblern’ sites, which, according to scientific criteria were, together with that special protection area, among the most suitable territories in number and size within the meaning of Article 4(1) and (2) Birds Directive and • the alleged failure of Austria, when authorizing the planned construction of the S 18 Lake Constance dual carriageway, to comply properly and fully with the requirements applicable by virtue of Article 6(4) Habitats Directive in the case of execution of a project where there has been a negative assessment of the implications for the site. 9.2. Description of the Natura 2000 locality concerned
General description of the site(s) affected: Name of the site:
Lauteracher Ried Nearest town/city:
Dornbirn Surface area:
579,71 ha (February 2004)
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Special Protection Area:
Yes, Lauteracher Ried SPA AT3404000 Proposed site of European Community importance or Special Area of Conservation: No
Map of the site or sites affected: Below two maps are presented. The first one shows the northern part with the ‘Natura 2000 site Lauteracher Ried’ and south east outside of it the ‘Soren’ site as well as the proposed road yellow marked. Natura 2000 – “Lauteracher Ried”
The second map printed on the next page indicates a proposal for the area to be included in the SPA ‘Lauteracher Ried’ by the WWF Austria (from ‘Die Vogelwelt der nördlichen Rheintalriede’, without date), that includes also the area ‘Gleggen Köblern’ site south of the road and north east of Dornbirn.
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Principal habitats and species directly affected: The standard data forms dated June 1997 that the Austrian authorities sent to the Commission list (at least) the following bird species considered to be relevant for this case by the Advocate General (paragraph 14 of its Opinion) and the ECJ (paragraph 35 f of its judgment): • Corncrake ( Crex crex ) (Annex 1 listed) • Common snipe ( Gallinago gallinago ) (breeding, migrating and not in Annex 1 listed) • Northern lapwing ( Vanellus vanellus ) (breeding, migrating and not in Annex 1 listed) • Eurasian curlew ( Numenius arquata ) (breeding, migrating and not in Annex 1 listed) 9.3. Description of the investment plan and its impacts on the Natura site:
Description of the planned activity: The proposed S 18 dual carriageway was planned by the Federal authorities. It was expected to have a length of roughly 5 km and to run outside the designated ‘Lauteracher Ried’ SPA (see first map above). Nevertheless it might have had significant effects on the SPA and therefore, as a matter of principle, had to be the subject of an assessment of its implications for the site under Article 6(3) of the Habitats Directive. Impacts on the Natura site: Impacts on the Natura site were already apparent from the matters set out in the report in the decision of the Office of the Vorarlberg Provincial Government of 21 February 2003. In particular road noise, the planned noise ‑protection measures and the separation of the SPA from litter meadows south of the road may have adverse effects, especially on the corncrake and other grassland nesting species. 10. Applicable Articles of Directive 92/43/EEC (Habitats Directive): Articles 6.3 and 6.4 11. Applicable national laws: Nature Conservation Act of the Province Vorarlberg 1971 Law on federal roads 12. Type of procedure (administrative and/or judicial):
Administrative and judicial
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13. Administrative procedural history/time-line: 13.1. Administrative proceedings An initial application for the road construction project was submitted in 1992, but no decision could be reached at that time. Hence, the proposal was completely revised and resubmitted on 8 March 1994. Finally, this procedure led to determination of the route in an order issued by the Federal Minister for Economic Affairs on 8 April 1997 (see this and the following section from the Opinion of the Attorney General). The consent for the planned road, based on the Nature Conservation Act, was applied for on 19 January 1999 and was authorized on 6 July 2001 by the administrations of the districts of Bregenz and Dornbirn, pursuant to the legislation of the Province of Vorarlberg. But in a subsequent administrative procedure (‘appeal’) by a decision of the province government from 21 February 2003, amendments to the statement of reasons were provided and compensatory payments were reduced by about EUR 540 000. Given the abovementioned order of the Federal Minister for Economic Affairs, that decision could not adopt a route other than the one which had been chosen. Not surprizingly, one of the two authorities granting the nature conservation consent, the town of Dornbirn, later appealed successfully against the order determining the routing. Both, the order issued by the Federal Minister for Economic Affairs on 8 April 1997, as well as the decision of the province government from 21 February 2003, was consequently appealed by several local communities and (successfully) at judicial procedures (see also below and point 16.). Timeframe of administrative proceedings:
4 5 6 7 8 9 92 9 9 9 9 9 9 07 19 1993 19 19 19 19 19 19 2000 2001 2002 2003 2004 20
Initial application Revised & re submitted Nature conservation consent for road line proposal to receive the Jan 1999 – Feb 2003 order road line order from the Constitutional Court dismissed partly road 1992 federal ministry line order Jun 2006 Mar 1994 – Apr 1997
Administrative Court Administrative Court suspended the execution confirmed the validity of Austria’s accession to the of nature conservation the nature conservation European Union consent Aug 2004 consent Jan 2007 Jan 1995
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13.2. Description of EIA The Austrian Government stated that, in 1994, a general examination of the environmental impact in accordance with the EIA Directive took place, which was challenged by the Commission (see next chapter). 13.3. Alternative solutions, considered by authorities: During the proceedings at the ECJ it remained unclear which alternative solutions were (or were not) considered by the national authorities. On the one hand, the Austrian Government maintained that all the alternatives to be considered had already been examined and rightly discarded in 1994, as part of a general examination of the environmental impact in accordance with the EIA Directive. On the other hand, the Advocate General came to the opinion that Austria was unable to prove that the examination of alternatives which it carried out in 1994 fulfilled the requirements of Article 6(4) of the Habitats Directive. Therefore, the Advocate General asked the ECJ to declare that the Austrian Government infringed Article 6(4) of the Habitats Directive, in that the competent authorities gave fresh approval for the planned construction of the S 18 Lake Constance dual carriageway without establishing that no alternatives existed (see in detail paragraph 75 and 76 of the Opinion of the Advocate General). 13.4. Alternative solutions pointed out by other stakeholders and not considered by the authorities: There is no information about alternatives, pointed out by other stakeholders and not considered by the authorities. A judgment of the ‘Verwaltungsgerichtshof’ (Austrian Administrative Court) on the ‘Wolfurt Lauterach junction’, which the Austrian Government cites as the basis for that assessment, states that ‘alternatives to the present project, which would require a change in the order setting the route, … are not appropriate alternatives’ (Judgment of 24 September 1999 in Case 98/10/0347). This was, in the view of the Advocate General Kokott, an argument in favor for her Opinion that there may be other alternatives to the planned road available (see details there in paragraph 75). 13.5. Mitigation measures, proposed or considered by the national authorities: The nature conservancy consent for the planned road imposed a number of conditions for the execution of the project, such as ‘actual compensatory measures’ that have already been laid down will reduce existing sources of noise and other disturbances, primarily by closure of a road. Nevertheless, the competent authorities assume that the overall noise level will increase and that the separation effects (especially because of the noise barriers) will weaken the overall links between the SPA and the grasslands to the south. Consequently, further measures are needed to safeguard the coherence of Natura 2000 (see Opinion of the GA, paragraphs 10 and 85).
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13.6. Compensatory measures for nature conservation damage, proposed or considered by the national authorities: The nature conservancy consent for the planned road stipulated compensatory payments of EUR 2 056 922.26 to create replacement habitats. But Advocate General Kokott did, in her Opinion, consider neither a value abstractly and generally assigned to the natural assets damaged, nor the sole possibility of resources earmarked to create suitable habitats as a guarantee that they are either used in that way or will be sufficient to take the measures actually needed. As an example, to purchase certain parcels of land in the vicinity (see more in detail paragraphs 87 to 89). Therefore the Advocate General asked the ECJ to declare that the Austrian Government infringed Article 6(4) of the Habitats Directive, in so far as the competent authorities gave fresh approval for the planned construction of the S 18 Lake Constance dual carriageway without laying down the compensatory measures necessary to safeguard the overall coherence of Natura 2000 (see paragraph 92). 13.7. Compensatory measures pointed out by other stakeholders and not considered by the authorities: None 14. Outcome of the actions: As already mentioned above (under 13.1) the consent for the road, based on the Nature Conservation Act, was authorized on 6 July 2001 by the administrations of the districts of Bregenz and Dornbirn. This decision was confirmed in a subsequent administrative procedure (‘appeal’) by a decision of the province government from 21 February 2003, including amendments to the statement of reasons and a reduction of compensatory payments. 15. Remedies taken: see below at 16
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16. Judicial procedural history/time-line : European Level Austrian Level 2001: complaint to the European Commission through BirdLife /Local 2002/2003: Complaints against the order Community Wolfurt/Local Community determining of the road line to the Constitutional Au Court by the local communities Lustenau & Au 2003: complaints of the town Dornbirn and the local community of Wolfurt to the Administrative Court to dismiss the Nature Conservation Consent (such as approved by the Provincial government) 7/2003: reasoned opinion of the Commission 8/2003: Administrative Court (AW 2003/10/0012) suspended the execution of the Nature Conservation Consent appealed against by Dornbirn & Wolfurt 6/2006: Constitutional Court (V89/02 et al.) partly 5/2004: Action by the Commission annulment of the order determining of the road line 3/2006: Judgment of the European 1/2007: Administrative Court (2003/10/0081) Court of Justice (C 209/04) confirmed the validity of the Nature Conservation Consent European Level The Commission asked the Court for a declaration that: • by failing to include in the area of the Lauteracher Ried national nature reserve (‘the Lauteracher Ried’) that is classified as a special protection area (‘SPA’) the Soren and Gleggen Köblern sites which, according to scientific criteria, are, together with that SPA, among the most suitable territories in number and size for the purposes of Article 4(1) and (2) Birds Directive, and • by failing, when authorizing the planned construction of the federal S 18 Lake Constance dual carriageway (‘the S 18 carriageway’), to comply properly and fully with the requirements laid down in Article 6(4) Habitats Directive in the case of execution of a project despite a negative assessment of the environmental implications for the site, Austria has failed to fulfill its obligations under Article 4(1) and (2) Birds Directive and Article 6(4), in conjunction with Article 7 Habitats Directive. The ECJ declared the first point in his judgment, hence a failure of Austria to implement the Birds Directive correctly, as these sites are of at least comparable importance to the Lauteracher Ried SPA for both the corncrake and migratory bird species not listed in Annex I, such as the common snipe, Northern lapwing and Eurasian curlew. But then ECJ dismissed in the judgment the second point of the application due to the time frame of the Habitats Directive.
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Because, according to the ECJ, the procedure for authorization of the project for the construction of the S 18 carriageway was formally initiated prior to the date of accession of Austria (1995) to the European Union. Thus the obligations under the Habitats Directive did not bind Austria, following that the project was not subject to the requirements laid down in that Directive. 13 National Level The judgment of the ECJ led to uncertainty at the national level, whether the construction of the S 18 carriageway is allowable, not withstanding the fact that it will negatively influence the Bird communities. Another judgment, this time from the ‘Verfassungsgerichtshof’ (Austrian Constitutional Court), found that this court declared the environmental impact assessment during the authorization procedure insufficient with regard to national laws. 14 Although the project for construction of the carriageway was already authorized, it was unlawful to implement the project during the procedure at the ECJ, because the execution of the government’s authorization decision was suspended by the ‘Verwaltungsgerichtshof’ (Austrian Administrative Court) already in August 2003.15 Recently in a judgment from 29th January 2007 the ‘Verwaltungsgerichtshof’ (Austrian Administrative Court) confirmed the validity of the nature conservation consent. They state that the order issued by the Federal Minister for Economic Affairs on 8 April 1997 merely indicates federal interests. The fact that it is partly dismissed does not make the nature conservation consent invalid, as another order might be issued according to the ‘Verwaltungsgerichtshof’ (Austrian Administrative Court). 17. Outcome of the actions: See the table above 18. Current status of case: Project stopped; a whole new consultation process is begun this year (planned for a future duration of about two years), focused on traffic planning over the entire region with an open agenda and without focus on certain means of traffic. 19. Follow-up actions planned and their time-line (in case of ongoing matter, also estimated end date of case): Nothing planned yet
13 Case C 209/04 Commission v Austria [2006] ECR I 2755 paragraphs 61 to 62. 14 See e.g. ‘VfSlg’ (Collection of the judgments of the Austrian Constitutional Court) no. V89 02 et al.. 15 See in detail case C 209/04 Commission v Austria [2006] ECR I 2755 paragraphs 12 and 13. Page 54 of 57 Justice & Environment Natura 2000 Case Study Collection
20. Analysis of legal problems, concerning implementation of Article 6.3 and 6.4 of Habitats Directive, conclusions: It would be interesting to know why the Commission did not additionally stress in this court procedure the Environmental Impact Assessment Directive. 16 This Directive would have been applicable as of 1st January 1994 and hence prior to the formal initiation of the project. 17 This is of further interest, as the Austrian Government maintained that the alternatives considered had already been examined and rightly discarded in 1994, as part of a general examination of environmental impact, in accordance with the EIA Directive. This again shows very well the differences between the Habitats Directive and the EIA Directive, as furthet pointed out by Advocate General Kokott in her Opinion (paragraph 61 f). The former lays down substantive requirements regarding approval of a project, which are intended to be served by the procedure envisaged in Article 6(3) and (4) of the Habitats Directive involving an impact assessment, followed if necessary by the examination and consideration of alternatives. In contrast, the latter only contains procedural provisions designed to ensure that considerations given to environmental issues are improved. It sets no binding environmental standards, so that it does not oblige the competent authorities to draw particular conclusions from the findings of the environmental impact assessment. Also the Austrian ‘Verfassungsgerichtshof’ (Constitutional Court) failed to take the earlier application of the EIA into consideration. However, it dismissed the consent for the construction of the road, not because of procedural matters, but rather concerning a lack of substantive requirements fulfilled by the environmental assessment. It is a pity that the ECJ dismissed the second point of the action concerning the correct application of Article 6 (4) Habitats Directive, due to the time constraints of the Habitats Directive. On the one hand, it would have brought interesting insights in the ECJ’s interpretation of compensatory measures while now ‘only’ the Opinion of the Advocate General remains unreflected by the ECJ. On the other hand, the interpretation of the ECJ of the time constraints of the Habitats Directive might also influence the Commission’s recent approach, basing an action against one Polish motorway project (which is a pipeline project) primarily on Article 6 (2) Habitats Directive (see the Case C 193/07 published in the OJ C 199/114 from 25.8.2007) The case insofar is quite typical, as authorities tend to designate SPAs as late as possible, with as few species as possible, sized as small as possible in order to reduce the effect of Article 6.3 and 6.4 HD.
16 Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment [OJ L 175 of 05.07.1985 as amended by OJ L 73 of 14.03.1997 and OJ L 56 of 25.06.2003]. 17 Which was the 8 th March 1994 according to the ECJ in case C 209/04 Commission v Austria [2006] ECR I 2755 paragraphs 54 and 58. Page 55 of 57 Justice & Environment Natura 2000 Case Study Collection
In the Lauteracher Case, the Lauteracher site was originally sent to the Commission with ‘wrong’ borders, further away from the planned street and the sites ‘Soren’ and ‘Gleggen Köblern’ were not included at all. Due to this, they might have refrained in 1999 from a direct application of the Birds Directive (similar as stated afterwards by the ECJ case Basses Corbieres) or a direct application of the HD. On the other hand, it is quite unique, given the duration and the number of courts involved (including the decision of the ECJ). 21. Lawyer and organization: Volker Mauerhofer Consultant & visiting lecturer on Vienna University on Nature Conservation Law 22. Contact information: [email protected]
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Acknowledgements Written by Kärt Vaarmari. Contributions from J&E team Edited by Jim Freeman Design and Layout by Michaela Freeman www.michaela freeman.com Plantage Middenlaan 2D 1018 DD Amsterdam The Netherlands Tel : +31 20 639 2716 Fax : +31 20 639 1379 [email protected] www.justiceandenvironment.org
The publication has been made possible through funding from the European Commission – DG Environment. The sole responsibility of this material lies with the author. The Commission is not responsible for any use that may be made of the information contained therein.
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