GUIDANCE DOCUMENT ON NEEI AND NATURA 2000
THIRD WORKING DRAFT (abbreviated version) – 3/11/2008
CONTENTS
1. INTRODUCTION 1
1.1 Background to the document – Why a guidance document 1
1.2 Purpose, scope and target of the document 1
1.3 Nature and structure of the document 2
1.4 Limitations of the document 2
2. POLICY AND LEGISLATIVE CONTEXT RELEVANT TO THE DEVELOPMENT OF NEEI ACTIVITIES IN AND AROUND NATURA 2000 3
2.1 EU Non-energy raw materials policy 3
2.2 EU environmental policy and legislation 3
2.2.1 Biodiversity and nature 4
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 7
2.4 Other relevant legislation 8
3. POTENTIAL EFFECTS OF NEEI IN THE NATURAL ENVIRONMENT 8
3.1 Special aspects of extractive activities 8
3.2 Impact on biodiversity 9
4. STRATEGIC MINERAL PLANNING AND NATURA 2000 11
4.1. Planning for minerals 11
4.2. Considering Biodiversity conservation and Natura 2000 in mineral planning 12
4.2.1 Spatial planning and mapping of location sensitivity 13
4.2.2 Potential effects on Natura 2000, coherence, connectivity & other considerations 13
5. ASSESSMENT OF NON-ENERGY EXTRACTIVE ACTIVITIES IN ACCORDANCE WITH THE HABITATS DIRECTIVE 15
5.1. Environmental assessment of NEEI plans and projects 15
5.2. The Appropriate assessment process in accordance with the Habitats Directive 15
5.2.1 First screening 16
5.3. Appropriate Assessment for mineral plans and programmes 18
5.4. Appropriate assessment of NEEI projects 20
5.4.1. The scope and focus of the assessment 20
5.4.2. Appraisal of impacts - Indicators for the appropriate assessment 21
5.5 Mitigation measures 22
5.6. Rehabilitation 25
5.7 The conclusions of the appropriate assessment 26
6. POSSIBILITIES FOR COMPENSATION IN CASE OF NEGATIVE ASSESSMENT (Art. 6.4) 26
6.1 The absence of alternative solutions 27
6.2. Imperative reasons of overriding public interest (IROPI) 27
6.3 The establishment of all necessary compensatory measures 28
7. PROVISIONS FOR THE STRICT PROTECTION FOR ANIMAL SPECIES LISTED IN ANNEX IV OF THE HABITATS DIRECTIVE 29
8. EXTRACTIVE ACTIVITIES IN MARINE AREAS 31
8.1. Marine spatial planning 31
8.2. Impacts of extraction on marine sites 33
8.3 Impact assessment 35
8.4 Mitigation 37
8.5 Recovery and rehabilitation 37
9. MONITORING AND INDICATORS 39
10. COOPERATION WITH COMPETENT AUTHORITIES AND STAKEHOLDERS 42
11. FURTHER RESEARCH NEEDS 44
12. ANNEXES
Annex 1. Selected case studies / good practice examples
Annex 2. Legal cases
Annex 3. List of guidelines and relevant documents for NEEI plans and projects assessment
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1. INTRODUCTION
1.1 Background to the document – Why a guidance document
The European Commission is preparing a European Strategy on non-energy raw materials[1], which, inter alia, addresses the sustainable supply of materials from European sources. This initiative is promoting a coherent policy approach, where the conservation of biodiversity and in particular the Natura 2000 network has been identified as a key issue in relation to the access to land.
The Nature Directives do 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. Potential conflicts involving extractive activities and the Natura 2000 network should be analysed in this context, taking into account the need to ensure that extractive activities can operate in a sustainable way, meeting biodiversity and in particular the Natura 2000 requirements.
Adequate interpretation and implementation of the Natura 2000 provisions is essential to reduce uncertainty and avoid any deterrent effect on NEEI where it might be a result of misinterpretation of the Nature Directives.
In order to clarify these provisions the Commission has produced a number of guidance documents[2]. Furthermore, a few Member States (e.g. Finland, Sweden and France) or organisations have produced guidelines for their extractive industries on how to deal with this issue.
However, there is general acceptance about the need for better understanding and guidance on the application of Article 6 of the Habitats Directive to the development of non-energy extractive activities as well as for improved dialogue between the NEEI and other stakeholder groups.
1.2 Purpose, scope and target of the document
The aim of this document is to provide strategic and project level guidance 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 in a way that is compatible with the conservation of biodiversity and the implementation of the Natura 2000 network.
This Guidance focuses on promoting appropriate assessment under Article 6.3 of the Habitats Directive, as the key tool for ensuring that impacts on the favourable conservation status of habitats and species listed in the Nature Directives are designed out of the project so that the integrity of the Natura 2000 sites concerned is not affected.
This Guidance document deals with the “non-energy extractive industry”[3] (referred to as the “NEEI” hereinafter), 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[4]:
- Construction minerals, which include aggregates such as sand, gravel and crushed rock, natural stone and a range of clays, shale and gypsum.
- Industrial minerals, which can be divided into physical industrial minerals (e.g. kaolin, feldspar, talc), and chemical industrial minerals (e.g. salt, potash, sulphur).
- Metallic minerals, as iron ores and non-ferrous metal ores (copper, zinc).
Other extractive activities developed in the EU, as the extraction of peat for non-energy uses, such as horticultural use, salt extraction and any non-energy extractive activities in marine areas included in the Exclusive Economic Zone (EEZ) are also under the scope of this guidance document. Extraction of energy resources (e.g. coal, uranium) are, due to their specificities, outside the scope of this exercise.
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 Nature and structure of the document
This Guidance has been developed in consultation with the Member States and organisations concerned, including extractive industry associations and NGOs. A number of key issues were identified for consideration in the present guide.
The guide is structured in 10 main sections following this introductory chapter. The policy and legislative context relevant to the development of NEEI activities in and around Natura 2000 is described in section 2. Section 3 introduces the potential effects of NEEI in the natural environment. The importance of mineral planning and the strategic assessment of minerals extraction are discussed in section 4. Guidelines on the appropriate assessment of non-energy extractive activities according to article 6.3 of the Habitats Directive are included in section 5 while section 6 describes the provisions for compensatory measures under article 6.4 of this Directive. Section 7 deals with the provisions for the strict protection for animal species listed in Annex IV of the habitats Directive. Extractive activities in marine area have particular features, which are discussed in section 8. The need for proper monitoring of activities and the use of appropriate indicators are discussed in section 9. Finally, key issues of stekeholders’ involvement and cooperation with competent authorities are presented in section 10.
The guide is also supported by a series of annexes, which present relevant case studies (annex 1) and legal cases (annex 2), and summarise key information about existing guidelines on NEEI impact assessments and mitigation (annex 3).
1.4 Limitations of the document
The guide is intended to be bound by and faithful to the text of the relevant Directives and the wider principles underpinning Community law 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 should be stressed that 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 guide recognises that the management and protection of nature is the responsibility of the Member States in accordance with the requirements of the nature Directive. National legislation, regulations and planning guidance will also be very significant in establishing how Natura 2000 sites and mineral extraction interact.
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 Council of Ministers (Competitiveness) requested the Commission on 21 May 2007 to ‘develop a coherent political approach with regard to raw materials supplies for industry, including all relevant areas of policy (foreign affairs, trade, environmental, development and research and innovation policy) and to identify appropriate measures for cost-effective, reliable and environmentally friendly access to and exploitation of natural resources, secondary raw materials and recyclable waste, especially concerning third-country markets’.
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[5].
As a next step, the Commission is preparing a Communication which is expected to be finalised in the second half of 2008, setting out a European strategy on non-energy raw materials.
Raw materials are essential to develop infrastructure and provide many industrial and consumer needs in modern societies. The main end-users of mineral raw materials are construction, chemicals, automotive, aerospace, machinery and equipment sectors that provide a total value added of 1,324 billion € and employment to about 30 million people (to be finalised upon policy adoption).
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(TO BE COMPLETED together with DG ENTR)
2.2 EU environmental policy and legislation
The EU environmental policy context is currently framed under the 6th Environmental Action Programme[6] which covers 2001-2010. Biodiversity is one of the other key priority areas for action and the Community policy aims to fulfil international commitments under the Convention on Biological Diversity (CBD). The Commission presented in May 2006 a ‘Communication on Biodiversity’, together with a detailed action plan, which sets out in detail the measures that need to be taken at Community and Member State levels in order to meet the 2010 target of halting biodiversity loss[7].
The key pieces of legislation at EU level for nature conservation are the Birds and Habitats directives. Other pieces of EU legislation are also relevant to the conservation of biodiversity most notably environmental Directives such as Strategic Environmental Assessment (SEA), Environmental Impact Assessment (EIA) and Environmental Liability.
There is also a wider international biodiversity context. In addition to commitments under the Convention on Biological Diversity the European Community is also party to other international biodiversity related conventions and agreements, including the Bern and Bonn Conventions, the African-Eurasian Waterbird Agreement (AEWA) as well as the Oslo/Paris C (OSPAR) and the Helsinki Conventions.
2.2.1 Biodiversity and nature
The Nature Directives (Birds and Habitats) and the Natura 2000 Network
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.
Natura 2000 is the centrepiece of EU nature & biodiversity policy. The aim of the network is to assure the long-term survival of Europe's most valuable and threatened species and habitats. It is comprised of Special Areas of Conservation (SAC) designated by Member States under the Habitats Directive, and also incorporates Special Protection Areas (SPAs) which they classify under the Birds Directive. Natura 2000 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.
More than 18% of the EU’s territory has now been proposed for, or included in, Natura 2000. With the completion of the Natura 2000 Network in sight, emphasis is increasingly being placed on the implementation of the management measures foreseen in the Directives, in particular in relation to Article 6 of the Habitats Directive and Article 4 of the Birds Directive. For this to work effectively though, it is essential that all Member States and actors have a common understanding of the provisions of the two Directives and how to apply them in practice (for instance, through the Commission’s guidance or through case law).
Natura 2000 is not a system of strict nature reserves where all human activities are excluded. Whereas the network will certainly include nature reserves most of the land is likely to continue to be privately owned and the emphasis will be on ensuring that future management is sustainable, both ecologically and economically.
The two nature directives provide an EU level environmental legislative framework aiming at ensuring that human activities – inter alia NEEI activities – occur without having a significant effect on nature conservation. The procedural safeguards are set out in Article 6 of the Habitats Directive. Any developments likely to have a significant adverse effect on Natura 2000 areas must be subject to an appropriate environmental assessment. If this concludes that there will be significant damage or disturbance to the nature values then the development can only proceed in the absence of alternative solutions if it is of overriding interest and with the provision of compensatory measures.
Thus, the development of extractive activities in and around Natura 2000 areas might be compatible with the conservation objectives set up for a particular site, provided that these are not significantly affected. This has to be assessed on a case by case basis, and NEEI developments that may adversely affect a Natura 2000 site can only proceed if they are fully in accordance with the requirements set out in Article 6 of the Habitats Directive.