GUIDANCE DOCUMENT ON NEEI AND NATURA 2000
SIXTH WORKING DRAFT – 8/07/09
CONTENTS
1. INTRODUCTION 1
1.1 Background to the document – Why a guidance document 1
1.2 Purpose and scope of the document 1
1.3 Key issues addressed in the document 2
1.4 Limitations of the document 3
2. POLICY AND LEGISLATIVE CONTEXT RELEVANT TO THE DEVELOPMENT OF NEEI ACTIVITIES IN AND AROUND NATURA 2000 4
2.1 EU Non-energy raw materials policy 4
2.2 EU environmental policy and legislation 4
2.2.1 Biodiversity and nature 5
2.2.2 Strategic Environmental Assessment and Environmental Impact Assessment 6
2.2.3 The precautionary principle 7
2.3 International Conventions on nature and biodiversity 8
2.4 Other relevant legislation and policy 9
3. POTENTIAL EFFECTS OF NEEI IN THE NATURAL ENVIRONMENT 10
3.1 Special aspects of extractive activities 10
3.2 Impacts on biodiversity 11
3.2.1. Brief description of some potential impacts 12
3.2.2 Cumulative impacts 16
3.3 Positive Impacts 16
4. STRATEGIC MINERAL PLANNING AND NATURA 2000 17
4.1. Planning for minerals 17
4.2. Considering Biodiversity conservation and Natura 2000 in mineral planning and land use plans 20
4.2.1 Spatial planning and mapping of location sensitivity 20
Natura 2000 GIS 20
4.2.2 Potential effects on Natura 2000 21
5. ASSESSMENT OF NON-ENERGY EXTRACTIVE ACTIVITIES IN ACCORDANCE WITH THE HABITATS DIRECTIVE – Article 6.3 25
5.1. The Appropriate Assessment process in accordance with the Habitats Directive 25
5.2. Screening: when must an Appropriate Assessment be carried out? 25
5.3. Appropriate Assessment of mineral plans and programmes 29
5.4. Appropriate assessment of NEEI projects 31
5.4.1. The scope and focus of the assessment 32
5.4.2. Appraisal of effects - Indicators for the appropriate assessment 34
5.5 Mitigation measures 35
5.6 The conclusions of the appropriate assessment 37
6. ALTERNATIVE SOLUTIONS, IROPI AND COMPENSATION (ART. 6.4) 41
6.1 The absence of alternative solutions 41
6.2. Imperative reasons of overriding public interest (IROPI) 42
6.3 The adoption of all necessary compensatory measures 43
7. SOME NEEI PRACTICES AND THEIR RELATIONS WITH THE PROVISIONS OF ARTICLE 6.3 AND 6.4 AND BROADER BIODIVERSITY ISSUES………………………….36
7.1 Rehabilitation………………………………………………………………………………..46
7.2. Biodiversity Offsets………………………………………………………………………...50
8. EXTRACTIVE ACTIVITIES AND NATURA 2000 IN MARINE AREAS 53
Natura 2000 in the marine environment 53
8.1. Marine spatial planning 54
8.2. Impacts of extraction on marine natural sites 56
8.3 Appropriate assessment 57
8.4 Mitigation 60
9. OTHER ISSUES 63
9.2. Cooperation between competent authorities and stakeholders 64
9.3 Species protection provisions 65
10. SOME FURTHER RESEARCH NEEDS 67
GLOSSARY 68
REFERENCES 71
12. ANNEXES 75
Annex 1. Selected case studies / good practice examples 75
Annex 2. Legal cases 75
Annex 3. List of guidelines and relevant documents for NEEI plans and projects assessment 75
1
1. INTRODUCTION
1.1 Background to the document – Why a guidance document
The European Commission recently launched a European Strategy on non-energy raw materials[1], which, inter alia, addresses the sustainable supply of materials from European sources. This initiative refers to Community legislation underpinning the Natura 2000 network as being of particular relevance to the development of extractive activities in Europe and provides for developing guidelines for industry and authorities "in order to clarify how extraction activities in or near Natura 2000 areas can be reconciled with environmental protection".
Community legislation on nature conservation, namely the Birds and Habitats Directives (hereinafter also referred to as Nature Directives), does not create an absolute exclusion from Natura 2000 sites to activities such as mineral extraction. The management requirements for Natura 2000 sites are set out in Article 6 of the Habitats Directive and potential land use conflicts involving extractive activities and Natura 2000 sites should therefore be analysed in this context. Adequate interpretation and implementation of these legal provisions is thus essential in order to reduce uncertainty, ensure that extractive activities can operate in a sustainable way meeting the Natura 2000 requirements, and avoid any deterrent effect on industry resulting from misinterpretation of the Nature Directives.
In order to clarify these provisions the Commission has produced a number of general guidance documents. Furthermore, a few Member States and organisations have produced guidelines for their extractive industries on how to deal with nature protection issues (e.g. Finland and Sweden) and with the assessment of their effects on Natura 2000 sites (e.g. France).
Furthermore, the “non-energy extractive industry” (referred to as the “NEEI” hereinafter) has led several initiatives concerning biodiversity management and the integration of sustainability principles into their operations[2]. Many sector-specific initiatives have also developed their own, adapted social and environmental impact assessment schemes, specific to the needs of the sector, including the integration of biodiversity. However, these initiatives aim to contribute generally to the global challenge of halting the loss of biodiversity but do not specifically address requirements of the Nature Directives.
There is therefore the need for specific guidance by the Commission on the application of provisions of Article 6 of the Habitats Directive to the development of non-energy extractive activities in the framework of improved dialogue with Member States, the NEEI and other stakeholder groups.
1.2 Purpose and scope of the document
The aim of this document is to provide guidance pertaining to mineral extraction plans and projects on a number of relevant issues that have been identified with stakeholders, in order to ensure that non-energy extractive activities are allowed to proceed where possible in a way that is compatible with the conservation of biodiversity and the implementation of the Natura 2000 network.
This Guidance focuses on the appropriate assessment under Article 6.3 of the Habitats Directive, as the key tool for ensuring that impacts on the qualifying habitats and species of Natura 2000 sites are properly assessed and designed out of a plan or project so that the integrity of the Natura 2000 sites concerned is not adversely affected.
This Guidance document deals with the non-energy extractive industry, which covers mines and quarries over 50 broad categories of mineral within the EU. The non-energy extractive industry in Europe (i.e. excluding minerals used for fuel) is usually divided into three sub-sectors[3]:
- Construction minerals, which include aggregates such as sand, gravel and crushed rock, natural stone and a range of clays..
- Industrial minerals, which can be divided into physical industrial minerals (e.g. kaolin, feldspar, talc), and chemical industrial minerals (e.g. salt, potash, sulphur, gypsum, plastic clays and pure silica sand).
- Metallic minerals, such as iron ore and non-ferrous metal ores (e.g. aluminium, copper, lead, nickel, tin, zinc and a broad variety of “minor” or rare metal ores).
Other extractive activities developed in the EU, like the extraction of peat for horticultural use, salt extraction and non-energy extractive activities in marine areas (except fisheries) also fall under the scope of this guidance document. Extraction of energy resources (e.g. coal, oil, gas, lignite, uranium) is, due to their specificities, outside the scope of this document.
This document is designed for use by all players in the planning, approval and development of non-energy extractive activities, which include:
- National/regional/local competent authorities
- NEEI operators, companies and organisations
- Agencies involved in mineral planning, permits, etc.
- Conservation agencies
- Local communities, NGOs, broader public.
1.3 Key issues addressed in the document
This Guidance has been developed in consultation with the Member States and organisations of stakeholders concerned, including extractive industry associations and NGOs. A number of key issues were identified for consideration, which include the following:
- The specific nature of the NEEI sector, as recently addressed in various Commission documents[4].
- The importance of strategic planning to deal with potential land-use conflicts involving non-energy extractive activities and Natura 2000.
- The need to provide guidance and clarifications on the appropriate assessment of plans and projects according to the provisions of Article 6.3 of the Habitats Directive, on relevant aspects for NEEI, including prevention and mitigation of any potential adverse effects on the integrity of Natura 2000 sites.
- The need to provide guidance and clarifications on the set of conditions which apply under Art. 6.4 of the Habitats Directive
- The particular circumstances, constraints and difficulties for the application of Article 6.3 in the context of marine non-energy extractive activities.
- The role and the engagement of the various stakeholders in the planning and development of non-energy extractive activities.
The guide is supported by annexes, which present relevant case studies (Annex 1) and legal cases (Annex 2), and provide an overview of existing guidelines on NEEI impact assessments and mitigation (Annex 3).
Finally, this guidance document builds, when appropriate, on a variety of NEEI sector specific practices and guidelines, often established in close cooperation with international fora or other industrialised economies.
1.4 Limitations of the document
The guidance is intended to be bound by and faithful to the text of the relevant Directives and the wider principles underpinning Community policy on the environment and non-energy extractive activities. It is not legislative in character, it does not provide new rules but guidance on the application of those that exist. As such this document reflects only the views of the Commission services and is not of a binding nature.
It rests with the EU Court of Justice to provide definitive interpretation of a Directive. Therefore, the guidance provided will need to evolve in line with any emerging jurisprudence on this subject. The guide intends to fully respect the existing case law of the Court, especially where clear positions have already been established by the Court.
The guidance recognises that the management and protection of nature is the responsibility of the Member States in accordance with the requirements of the Nature Directives. National legislation, regulations and planning guidance will also be significant in establishing how Natura 2000 sites and mineral extraction interact.
This guidance document does not intend to replace general interpretative and methodological guidance on the provisions of Article 6 of the Habitats Directive[5], which also applies to the NEEI sector, but rather to further clarify specific issues that are of particular relevance to non-energy extractive activities. It should therefore be read in conjunction with the existing general guidance.
2. POLICY AND LEGISLATIVE CONTEXT RELEVANT TO THE DEVELOPMENT OF NEEI ACTIVITIES IN AND AROUND NATURA 2000
2.1 EU Non-energy raw materials policy
The raw materials question was recognised at the G8 Summit in Heiligendamm on 6-8 June 2007 which adopted a declaration on ‘Responsibility for raw materials: transparency and sustainable growth’[6], focussing in particular on the important role of the extractive sector.
The 4th report[7] of the High Level Group on Competitiveness, Energy and the Environment of 11 June 2007 underlined the need for a shift towards a more resource efficient production and sustainable resource use globally, taking account of the EU thematic strategy on Sustainable Use of Natural Resources[8] as well as the forthcoming policies on Sustainable Industrial Policy[9] and Sustainable Consumption and Production[10].
This issue has also been addressed in the Commission’s staff working document on the competitiveness of the non-energy extractive industry in the EU whose principal focus was on means to improve the EU domestic supply situation[11].
On 4 November 2008, the Commission adopted a Communication which sets out a European strategy on non-energy raw materials[12]. The strategy is based on the following 3 pillars:
(1) ensure access to raw materials from international markets under the same conditions as other industrial competitors;
(2) set the right framework conditions within the EU in order to foster sustainable supply of raw materials from European sources;
(3) boost overall resource efficiency and promote recycling to reduce the EU’s consumption of primary raw materials and decrease the relative import dependence.
Access to and affordability of mineral raw materials are crucial for the sound functioning of the EU's economy. Sectors such as construction, chemicals, automotive, aerospace, machinery and equipment sectors all depend on access to raw materials.
The Communication stresses that the knowledge base of mineral resources within the EU should be improved and the long term access to these resources should be taken into account in land use planning. Furthermore, it points to the need to streamline the administrative conditions and speed up the permit process for exploration and extraction activities.
2.2 EU environmental policy and legislation
The Nature Directives (Birds and Habitats) and the Natura 2000 Network
The key pieces of EU legislation for nature conservation are the Birds and Habitats directives. The Birds Directive (79/409/EEC, Directive on the Conservation of Wild Birds), provides a framework for the conservation of all wild bird species naturally occurring in the EU territory of the Member States. The Habitats Directive (92/43/EEC, Directive on the Conservation of Natural Habitats and of Wild Flora and Fauna), approved in 1992, aims to conserve species and habitat types of EU conservation interest and to establish an EU-wide network of nature protection areas, Natura 2000.
The European ecological network Natura 2000 is the centrepiece of EU nature & biodiversity policy, in addition to a strict system of species protection. The aim of the network is to assure the long-term survival of Europe's most valuable and threatened species and habitats. Sites of Community Importance (SCI) are identified for habitat types included in Annex I of the Habitats Directive and for species listed in Annex II of the Directive; following approval by the Commission, these sites have then to be designated as Special Areas of Conservation (SAC) by the Member States. As regards species included in Annex I of the Birds Directive, Member States shall classify as Special Protection Areas (SPAs) the most suitable territories, in number and size, for the conservation of these species. Member states are also required to take similar measures for regularly occurring migratory species All the areas designated under these two Directives make up the Natura 2000 network, which also applies to the marine environment. The establishment of this network of protected areas also fulfils a Community obligation under the UN Convention on Biological Diversity.
Natura 2000 is not a system of strict nature reserves where all human activities are excluded. The two nature directives provide an EU level environmental legislative framework aiming at ensuring that human activities – inter alia NEEI activities – occur without adversely affecting the integrity of Natura 2000 sites. The overall framework for the management of Natura 2000 areas is laid down in Article 6 of the Habitats Directive.