26/05/2008

GUIDANCE DOCUMENT ON ACTIVITIES OF NON-ENERGY EXTRACTIVE INDUSTRIES AND NATURA 2000

DRAFT TERMS OF REFERENCE

  1. BACKGROUND/CONTEXT

The European Commission (DG Enterprise and Industry) is preparing a European Strategy on non-energy raw materials[1], which aims to increase 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. The DG Environment will contribute with the preparation of a technical guidance document on the implementation of Natura 2000 in the field of non-energy extractive activities (mining/quarrying).

In preparing for that strategy, a Commission Staff Working document on the competitiveness of the EU non-energy extractive industry (4 June 2007)[2] analysed the availability of non-energy raw materials within the EU and the different drivers of a competitive extractive industry in Europe. In that context many stakeholders considered the access to land as a key challenge for the industry. Representatives of Member States and the industry have indicated that the Birds and Habitats Directives (79/409 & 92/43/EEC), which together provide the basis for the Natura 2000 network of protected areas, will have a significant impact on the extractive industry’s operations in Europe. The industry has expressed severe concern about its general exclusion from significant areas of land, in particular from the Natura 2000 areas. These terms of reference take into consideration that document, in particular as regards the identification of relevant issues for the proposed guidance.

The 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. In order to clarify these provisions the Commission has produced a number of guidance documents[3]. Furthermore, a few MemberStates (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 to develop more specific guidance in relation to the activities of non-energy extractive industries.

In May 2006 the European Commission adopted a Communication entitled "Halting the loss of Biodiversity by 2010 - and beyond - sustaining ecosystem services for human well-being"[4], which sets the EU agenda for biodiversity. This Communication identified a number of key objectives and actions that will be necessary to halt biodiversity decline. One of the key measures is the building of more effective partnerships, including partnerships with Business both at the level of the EU and in the Member States, in line with the global commitments under the Convention on Biological Diversity (CBD).

The EU action plan to halt biodiversity loss[5] has set priority actions to safeguard the EU's most important habitats and species, which include the establishment of management priorities and necessary conservation measures for Natura 2000, ensure adequate implementation of articles 6.2, 6.3 and 6.4 of Habitats Directive, strengthen effectiveness of Strategic Environmental Assessment (SEA) and Environmental Impact Assessment (EIA) in informing decision-making so as to prevent, minimise and mitigate damages to Natura 2000 sites, and ensure full and timely application of the Environmental Liability Directive (ELD) as it applies to protected species and natural habitats, including preventive measures and remedial actions, as appropriate. This Action plan also aims to develop business and biodiversity partnership and to facilitate such partnerships at the Community level.

Accordingly, an initiative was launched in 2007 to strengthen the links between business and biodiversity protection, under the title "Building Better Partnerships: linking Business to Biodiversity" (The EU B@B initiative)[6]. The Commission has organised a series of stakeholder consultations to obtain the views of Member States, business and non-governmental organisations about the principles, objectives and possible elements for an EU-level action on business and biodiversity. The Commission intends to support further development of the B@B Initiative, e.g. through the development of best practice guidance concerning the responsibilities and opportunities existing for companies in relation to the EU nature legislation, and to promote the implementation of best practice adapted to the specific conditions of the companies concerned.

The European Commission has also developed a Strategy for the Sustainable Use of Natural Resources in Europe (2005-2030)[7] which is one of the seven Thematic Strategies developed by the 6th European Environment Action Programme (2002-2011). The objective of the strategy is to reduce the negative environmental impacts generated by the use of natural resources in a growing economy.

The proposed guidance shall contribute to and coordinate with the Business & Biodiversity initiative, the Raw Materials policy, under development by DG Enterprise and Industry, and the Thematic Strategy on Sustainable Use of Natural Resources.

The extractive sector has led several initiatives concerning biodiversity management and has produced interesting guidance on this topic. Some industries have developed a range of schemes to support their members in the effective integration of sustainability principles in their operations, which include the commitment to contribute to the conservation of biodiversity. Some examples are the Mining, Minerals, and Sustainable Development (MMSD) project[8], the Sustainable Development Framework developed by the International Council on Minerals and Mining (ICMM[9]) and the Cement Sustainability Initiative (CSI)[10]. ICMM in partnership with IUCN has developed relevant guidance based on best practice in mining (Good Practice Guidance for Mining and Biodiversity)[11]. A formal review of these Guidelines is planned for 2009. Many sector-specific initiatives have also developed their own, adapted social and environmental impact assessmentschemes, specific to the needs of the sector, including the integration of biodiversity. These and other similar initiatives will be taken into account in the scoping of guidance on NEEI and Natura 2000.

  1. RELEVANT ISSUES

A number of key issues to be further addressed in the scoping of the guidance document have been identified, which are briefly introduced below.

Access to land

Matters affecting use of land for activities such as mining are within the competence of the Member States, which decide if and where mining activities should take place within their national borders, subject to compliance with the relevant EU legislation and their own national and local legislation.

An important issue is the extent to which designated areas coincide or overlap with important mineral resources, particularly of minerals which are not found elsewhere within the EU, and the extent to which the Directive really results in prohibition or restriction of mining activities.

A major concern that has been expressed is how specific projects can be made compatible with new requirements arising under the Nature Directives following the designation of Natura 2000 areas. Also there may be old permissions that extend over SPAs and SCIs, which should be reviewed.

To understand the strategic importance of resources within protected areas requires a more detailed analysis than is currently available of the overall distribution of minerals in the EU and the overlap between different types of mineral and the protected areas. This would allow a more objective assessment of the relative scarcity of minerals that are particularly important to the EU economy and whether alternative sources exist in less constrainedareas[12].

A first analysis carried out in 2004 suggested that the vast majority of existing mineral operations were unaffected by Natura 2000, although a number of companies had faced difficulties to demonstrate to their competent authorities that they were not a threat to the protected areas, while some proposals to extend existing sites or for new permits were turned down[13]. However more recent data are not available and a significant important growth in the demand for raw-materials has taken place after 2004.The bigger issue for the industry as a whole could be in the future as it seeks to replace exhausted sites.

EuroGeoSurveys sent a questionnaire to national geological surveys on the extent of modern geological mapping in each MemberState and the overlap between Natura 2000 sites and mineral resources or prospects. The results of the survey[14] indicate that some Member States have relevant GIS-based information (e.g. Italy, the Netherlands and the UK). Others are developing such a system (e.g. Cyprus, the CzechRepublic, France, Poland and Sweden), while others are not (e.g. Denmark, Germany, Greece, Latvia, Portugal and Spain).

Mineral planning and Natura 2000 management

Some Member States provide national policy guidance which has to be taken into account by lower tiers of government responsible for planning and permitting mineral extraction in their area, while others do not appear to have a coherent system for planning future extraction activities or an effective system for considering proposals for new sites. Only a small number of countries have clearly defined national minerals policies.

As most decisions about land use are taken at regional or local level within a MemberState, the absence of a national policy can result in inconsistent decision making. Some Member States have more than one permitting authority, which can involve a slow and lengthy process for obtaining permits from different government institutions to operate a single site.

Moreover, there is a lack of integrated geological knowledge on mineral deposits in the EU and general consensus exists on the need to improve the availability of relevant data at the level of policy and decision makers.

An objective evaluation of the strategic importance of mineral resources for the EU economy and where important sources exist could informa policy framework for environmental assessments of NEEI projects (see below).

Strategic environmental assessment

The SEA Directive (2001/42/EC) requires an environmental assessment of certain plans and programmes which are likely to have significant effects on the environment, which are subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or government, and which are required by legislative, regulatory or administrative provisions.

In the context of this guidance, the SEA Directive is most likely to be applicable where a national, regional or local authority is preparing a land-use plan which is either specifically designed to deal with mineral extraction (e.g. a “minerals plan”), or where mineral extraction is one of the land uses considered in the plan. It is up to the authority developing the relevant plans or programmes to undertake the assessment

Strategic planning plays an important role in identifying and avoiding conflicts between minerals and Natura 2000. This is fundamental to proper planning and application of the Habitats and Birds Directives. It is now a requirement of the Habitats Directive that land-use plans are subject to appropriate assessment (Article 6.3). This tool could allow detecting potential problems at the strategic level and make possible to sort them out. Strategic appropriate assessment is a positive planning tool to avoid unnecessary conflicts at a spatial level. Under this assessment, the importance of eachsite to maintaining the natural habitats and species of Community interest at a favourable conservation status and the overall coherence of the network shall be carefully evaluated.

Environmental assessment

For the areas included in the Natura 2000 network, Member States are required to take appropriate steps to avoid deterioration of the habitats and/or disturbance of the species for which the area was selected. Any plan or project likely to have a significant effect must be subjected to an “appropriate assessment” of its implications for the site (art. 6.3 of the Habitats Directive).

If an appropriate assessment of a proposal for a mine or quarry concludes that the activity is unlikely to affect the integrity of the site, the project can proceed, usually subject to conditions and following wider approval under the relevant mine licensing procedure applicable in the Member State. If the appropriate assessment indicates that the activity will affect the integrity of a site, and no alternatives are feasible, but the Member State considers that the project must be carried out for “imperative reasons of overriding public interest, including those of a social or economic nature”, the Member State can allow the activity to go ahead as long as all compensatory measures necessary to protect the overall coherence of Natura 2000 are taken (art. 6.4. of the Habitats Directive). Where the site 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.

Issues related to the implementation of the Water Framework Directivecan also be considered in this context, if relevant.

  1. OBJECTIVES AND SCOPE

The aim is to develop technical guidance on how best to ensure that extractive activities are compatible with EU nature conservation requirements by promoting sound implementation of the site management provisions under Article 6 of the Habitats Directive. In particular, the main objective of the guidance will be to improve understanding and proper interpretation of the provisions under article 6.3 and 6.4 of the Directive in the sector of the NEEI.

All types of extractive activities should be covered (e.g. including sand, peat, salt extraction and extractive activities in marine areas). As a reference for definition of extractive activities to be considered, the Directive on the management of waste from extractive industries (2006/21/EC) could be used. However, the focus of the guidance will be determined by the relative importance of the different types of extractive activities in terms of issues that have been faced by local authorities and the NEEI (e.g.frequency of Court cases) or in terms of size of operations and pressure on the natural environment.

Marine aggregates and interaction with the emerging marine Natura 2000 network will also be covered.

The whole project cycle will be considered, which includes:

-Exploration, design & planning

-Construction and operation

-Closure / after-care

The different types of impacts that NEEI may cause on the natural environment shall be taken into account.

The guidance will be developed in coordination with the initiative on raw materials (see Section 1) and its preparation could provide input to the elaboration of therelated Communication on a European Strategy on non-energy raw materials.

  1. TARGET AUDIENCE

The audience of this technical guidance document on NEEI and Natura 2000 comprise all players in the project approval process:

-National/regional/local competent authorities

-NEEI operators, companies and organisations

-NGOs

-Conservation agencies

-Agencies involved in mineral planning, permits, etc.

-Local communities, broader public.

  1. PARTICULAR CONSIDERATIONS

The process leading to the preparation of the technical guidance document on NEEI and Natura 2000 involves:

-Promoting the dialogue between the NEEI and other stakeholder groups to improve understanding and proper interpretation of the provisions under article 6.3 and 6.4 and integration of biodiversity consideration with NEEEI activities.

-Analysing possible conditions and constraints created by the Natura 2000 network to the development of NEEI.

-Enhancing exchange of information on existing experiences, good practice and lessons that have been learnt from earlier plans and projects regarding the integration of extractive activities and management of the Natura 2000 network to meet the objectives of each site and the network as a whole.

-Analysing existing pieces of guidance to be taken into account as appropriate and to identify where further guidance might be necessary.

Particular attention should be paid to avoiding the potential significant and long-term damaging effects of extractive activities on biodiversity. Corrective and mitigation measures can help eliminating or reducing the environmental impacts of non energy extractive activities.

The process should considerthe main phases in the development of non energy extractive activities. Some relevant aspects are described below, which should be analysed taking into account the specific provisions of Art. 6.3 and 6.4 of the Habitats Directive.

  • Design of the activity (exploration/mining/quarrying). The design phase must take into account all potential threats to biodiversity and the environment, including downstream impacts. The Natura 2000 sites haves been designated to form a coherent network where each site contributes to the conservation of certain habitats and species in their European range. Impact on a single site might therefore affect other sites that are related to the former. Some areas may have a unique value for the conservation of certain species and habitats. The conservation value of the sites potentially affected by NEEI activities and their contribution to maintaining the ecological integrity and functional connectivity of the network should be carefully considered. A project located in a Natura 2000 area or so close to a Natura site that the operation is likely to have adverse effects on the Natura area, should consider the relevant natural assets of the site, their ecological requirements and their relations with the environment. The information on the Natura 2000 sites affected is available from different sources, as the Natura 2000 GIS and database, the management plans elaborated for some sites, management guidelines for certain habitats and species, action plans, etc. Under the conditions that allow for the application of article 6.4 of the Habitats Directive, effective compensation measures should be designed at this stage. These measures should start before the operation begins; effective compensation should be in place before damage occurs.Considering that only few mineral prospects result in the description of an economically interesting mineral deposit for mining, governments often provide separate permits and assessment procedures for exploration projects. Subsequent mine planning is a highly iterative activity – often involving simultaneous development of alternative solutions to particular design problems. Ideally, the Natura 2000 requirements should be incorporated into the evaluation of alternative designs from the beginning, so that infeasible solutions are discounted early.
  • Construction and operation. Conditions for extractive operations in the Natura 2000 network should guarantee that the conservationobjectives of the areas included in the network are not compromised. This usually implies the implementation of adequate mitigation and corrective measures, as well as preventive measures, to avoid or reduce potential risks; it could also imply compensation if there are no alternatives for the project and imperative reasons of overriding public interest require that it iscarried out. These measures should be tailored to the particular features of the site and the elements liable to suffer damage, taking into account the ecological functions and relations on which the integrity of the site depends. A monitoring plan is necessary to assess the efficacy of these measures and allow detecting residual impacts on the site.
  • Restoration. Actions to rehabilitate or restore the affected natural environment are an important part of the project development. Restoration could be part of the mitigation measures to be implemented in a project (devised in accordance with art. 6.3) or compensation measures (when art. 6.4 applies), depending on the particular cases. In general, habitats restoration or recreation is a challenging action that takes considerable time and effort. The reinstatement of original communities of plants and animals is often difficult to achieve, especially if the site has been severely degraded. Nevertheless, there are also good examples of habitat restoration that have resulted in the establishment of ecologically valuable communities. However, restoration and recreation in the framework of article 6.3 & 6.4 of the Habitats Directive must address the particular habitats and species that are affected by the project. Restoration activities have to be carried out with the best knowledge and best techniques available in order to allow natural recovery.

Review of good practice examples