Marc Thauront Brussels 30 June 2008

GCF: authorisation process

Stakeholders vision (Rotterdam, Venice may 2008) Sulphur Directive + SECA’s EMS Air quality Directive Noise Directive Waterframework Directive Environmental Quality Standards IMO + Marpol Soil pollution Directive (Strategic) EIA Directive Waste Directive GroundwaterDirective Birds and Habitat Directive Ship Waste Directive Energy policy + Climate change policy National Emission Ceiling Directive ICZM IPPC WG: SEA is not EIA, both have an integrative approach

Integrated scheme for studies SEA: plans and programmes, focus on Natura 2000, consider water and biodiversity, potential impacts alternatives and monitoring system, consultations (even transboundary) EIA: project, direct and indirect effects on fauna, Flora (strengthened by HFF art.12), waters, mitigation… WFD Art. 6.3 & 6.4 HFF other

Integrated scheme for studies To be explored (GCF ?): In relation with the coherence of FCS and GES for habitats occurring in transitional waters, Is it possible to compare the derogation process art 6.4 BHD and the exemption process WFD 4.7

GCF: appropriate assessment and alternatives

Appropriate assessment Demand from both EIA and HFF-art 6.3 Potential impacts (include land consumption and/or hydro-morphological changes) Natural value, Structure & function, & conservation objectives Basic needs + = “Significant” = Threshold to be justified (reasoned) Strongly depends on conservation objectives “Appropriate” = Basic needs covered + justification proposed

Appropriate assessment The integrity of the site, focused by article 6.3, has been defined as “the coherence of the site’s ecological structure and function across its whole area, or the habitats, complex of habitats and/or populations of species for which the site is or will be classified” (guidance Managing Natura 2000 sites)

Appropriate assessment 1) Ecology and biodiversity are not based on standardized functioning they depend on a multidimensional model based on local conditions (variability and complexity of abiotic and biotic factors), and spatial and time scales 2) Studies have to be adapted to these local conditions (case-by-case basis) and because of this “appropriate” or “significant” are not normative concepts 3) Only basic methodologies and list of potential impacts could be standardized

Appropriate assessment Step 1: basic needs: preliminary step, proactive approach Why a project ? (includes first IROPI assessment) Why here ? (includes first alternatives assessment) Potential impacts of such a project (general literature) Preliminary knowledge on the natural value of the area (mapping and habitats and species) and the cons. objectives Step 2: Project design (more or less integrated) Technical studies, including fauna, flora, water Step 3: Legal steps and consultation, risk, adaptation EIA document including BHD art 6 and WFD art 4.7 if needed Step 4: Authorisation and synchronised decision for investments to be discussed with local authorities

What is an alternative for PRA? Alternatives What is an alternative for PRA? 1. Reduced project or 2. project including mitigation/compensation areas ? 2 1 3. several locations (geographical scope ?) 4. Alternative solution or zero option as proposed by art.6.4 guidance: in contradiction with the IROPI concept?

Integrated approach (adapted from Rijkswaterstaat) Alternatives &integrated planning Port related activity 2-ecology 3-landscape 4-water management technical plan ecological plan landscape plan management plan Water plan Alternative designs + costs Communication Project design Realisation Integrated approach (adapted from Rijkswaterstaat)

Non-integrated approach (adapted from Rijkswaterstaat) Alternatives &integrated planning Port related activity Non-integrated approach (adapted from Rijkswaterstaat) technical design landscape water ecology alternative designs + costs project design realisation management

GCF: indirect and cumulative impacts

Cumulative impacts Red areas = potential areas for future port related activities projects. Each of them will have an authorization process including EIAs but none is certain. How to consider cumulative impacts ?  Integrated planning and a room for SEA

Indirect impacts indirect and cumulative impacts ? How to consider indirect and cumulative impacts ? e.g.: increasing of maritime traffic may locally increase road traffic too and create new needs of infrastructures Transshipment evolution and pre and post deliveries by modal transport in Le Havre  Integrated planning and SEA

GCF: mitigation and compensation

Mitigation or compensation measures European Commission (2007), Guidance document on article 6(4) of the ‘Habitats Directive’92/43/EEC. Clarification of the concepts of: alternative solutions, imperative reasons of overriding public interest, compensatory measures, overall coherence, opinion of the Commission. More than 10 pages just on compensation  Only new questions/guidance will be developed in relation with the specificity and the size of port related activities

Mitigation or compensation measures A new concept for BHD and port related activities ? EIA: annex 4, A description of the measures envisaged to prevent, reduce and where possible offset any significant adverse effects on the environment. Art. 9 a description, where necessary, of the main measures to avoid,reduce and, if possible, offset the major adverse effects. SEA annex 1: the measures envisaged to prevent, reduce and as fully as possible offset any significant adverse effects on the environment of implementing the plan or programme; Mitigation and compensation developed by Art.6 BHD is not a new concept as well as mitigation concept developed in WFD Art 4.7 (WFD)

Mitigation or compensation measures Is it possible to develop port related activities in estuaries and coastal zones without any residual environmental impact after mitigation ?  Doubtful because of land consumption and/or morphodynamic modifications However, adapted studies and communication scheme, mitigation, compensation will create the conditions for the acceptance of the environmental impacts (if IROPI). The Commission, in delivering its opinion, should check the balance between the ecological values affected and the invoked imperative reasons, and evaluate the compensation measures (guidance 6.4).  It means that article 6.4 derogation process (and WFD 4.7 exemption ?) has to be anticipated: negotiation of proportionality, local will of stakeholders and inhabitants to reach a high environmental standard, functionality, cost effectiveness and affordability, after-care of the focused areas …

Mitigation or compensation measures Delays could be solved through appropriate anticipation and possibly a limited use of banking: There could be a potential use of the concept of habitat banking in a constraint regime linked to Article 6(1). For instance, where a development is foreseen it might be appropriate to consider and implement within the management plan designed for the site or integrated into other development plans, the necessary compensatory measures that would be required in the context of such development and consequently before any decision is made by the competent authorities. (guidance 6-4) Costs incurred has to be detailed and organised in advance. If the project operator will certainly be involved, the planning authority could be involved too : A subsidy granted by a public authority for measures taken in order to compensate for damage to a Natura 2000 site can be considered as a State Aid… However, in the case of an undertaking acting as a contractor for a public authority to build an infrastructure, the subsidy would not be considered as a state aid as long as it is granted in exchange of works carried out (guidance 6-4)

Mitigation or compensation measures Specific question for biodiversity offsets: how to assess the value of damage to be compensated and the network coherence: results of REMEDE, directive environmental liability, banking approaches… Up to now there is not a common method of valuation but it is possible to develop a common qualitative grid of decision Proportionality: why the size of the project doesn’t fit with the size of the impact ? How to compare a 1000 ha extension on maize fields and a 100 ha extension on a rare wetland ? Compensation in Le Havre 45 M€ and in Bremerhaven 90 M€: case study for proportionality

Mitigation or compensation measures In a land planning exercise, it is possible to develop a compensation scheme for the functional ecological unit (ecosystem approach) to facilitate future authorisation. Existing key example ? Management of the future of the saved or restored ecological areas and ecosystems services has to be secured in advance. Is it part of part of the compensation ? Mitigation by avoiding an area, compensation through its management Recreation of an habitat + it management for a fixed period (permanent if recurring impact ?)

Mitigation or compensation measures Estuaries are often anthropogenic systems with natural features (Man-made ecosystems). In this case economical stakeholders or regional/local authorities may produce services for the ecosystem: e.g. management dredging is sometimes considered as part of ecosystem functioning. When demonstrated, this win-win approach has to be considered as a positive impact. There is no need of compensation in this case and even no need of mitigation if the project design is appropriate  see alternatives and integrated planning. However the limit between appropriate design and inappropriate design is thin and may vary with time (global change)  monitoring and capabilities of adaptation