6. PLANS AND PROJECTS AFFECTING NATURA 2000 SITES.
Article 6 of the Habitats Directive (92/43/EU) provides the legislative framework for the consideration of plans and projects which could impact on sites which are protected under the Habitats and the Birds Directives (i.e. Natura 2000 sites (N2K): SACs and SPAs.
In assessing plans and projects affecting, or potentially affecting a Natura 2000 site, an ‘appropriate assessment’ must be carried out; this can be done under the Environmental Impact Assessment Directive or the Strategic Environmental Assessment Directive, but the Article 6 Appropriate Assessment under the Habitats Directive should be clearly distinguishable and identified within an EIS or Strategic Environmental Statement (SES). An Article 6 assessment can also be reported separately; this situation can arise for small- scale plans and projects that trigger an assessment because of their location and potential impacts on protected sites and species. Note that an Article 6 assessment can also be required for plans and projects intended to be beneficial for nature conservation, where they may affect other Natura 2000 sites, or other protected habitats and/or species within the target site.
Article 6(3) of the Habitats Directive requires that a plan or project (which is not directly connected with or necessary to the ecological management of a site protected under the Directive) can be approved only if it will not adversely affect the integrity of the site concerned. Article 6(4) qualifies this by requiring that if a plan must proceed for imperative reasons of overriding public interest, and if there are no alternatives to the plan, then compensatory measures must be adopted – these would generally involve the creation or restoration of replacement habitat elsewhere. Compensatory measures are agreed by the National Authorities in consultation with the European Commission.
If a Natura 2000 site concerned hosts priority listed habitats or species which would be adversely affected by the plan or project, the only considerations which may be raised are those relating to human health or public safety, or beneficial consequences of primary importance for the environment. The Birds Directive requires that important concentrations of migratory waterfowl and internationally important wetlands are treated in the same way as Annex 1 listed bird species (Article 4 (2)). Case law under the Birds Directive indicates that internationally important bird sites are given protection equivalent to priority listed habitats and species under the Habitats Directive. The SAC water dependency database provided distinguishes between Annex 1 listed, and priority Annex 1 listed water dependent habitats (see Appendix 4). Currently, there are no Habitats Directive priority Annex 2 listed species in Ireland.
These provisions apply to all Annex I and II listed habitats and species, irrespective of water dependency, and readers are referred to the European Commission DG Environment guidance on Natura 2000 sites, listed in the bibliography of this report. A flow chart is shown on the next page which illustrates the four stages of the Article 6 assessment process. The following abbreviations are used:
PP = Plan or Project
N2K = Natura 2000 site (SACs and SPAs)
UCS= Unfavourable Conservation Status (under Article 17 of the Habitats Directive)
The examples given in the discussion below relate to water dependent features, habitats and species, where plans and projects may need to be considered in the context of measures being considered and applied in an integrated way under the Water Framework Directive.
low diagram of the four stages of the Article 6 assessment process, modified from: Assessment of plans and projects significantly affecting Natura 2000 sites; Methodological guidance on the provisions of Article 6(3) and (4) of the Habitats Directive 92/43/EU. DG Environment © European Communities 2002. Readers should refer to this guidance.
The flow diagram on the previous page illustrates the basic ‘don’t go there’ principle for potentially damaging developments in SACs and SPAs. The aim of these designations is to protect and if necessary improve conditions for rare habitats and species. The preferred option is the avoidance of adverse impacts by putting the development somewhere else. There are very few circumstances where it can argued that the only available option is to damage the conservation interests of an internationally important site, as demonstrated in case law under the Habitats and Birds Directives. The full implications of proceeding through the planning process with an inappropriate option adversely affecting an SAC or SPA should be considered during the screening stage for any development plan or project.
Stage 1: Screening.
A number of questions arise at Stage 1 screening:
1. Is there a difference between an Appropriate Assessment and an Article 6 assessment?
No, they are different terms for the same process, appropriate assessment is a term used in Article 6 of the Habitats Directive.
2. How do you know when an Article 6 assessment is required?
The formal notification of each SAC and/or SPA site by the Minister (through the National Parks and Wildlife Service of the Department of the Environment, Heritage and Local Government) includes a list of Notifiable Activities. These are defined as operations likely to alter, damage, destroy or interfere with the integrity of the site, and under current national legislation they can be carried out only with the consent of the Minister. These activities could be projects or work carried out by landowners or occupiers, or activities by, licensed by, or requiring the permission of another Minister, Public Body, State or Local Authority. However, it should be noted that the recent European Court of Justice judgment against Ireland in case C-418/04 raises issues relating to consent being granted for plans and projects which damage the integrity of an SAC or SPA, which will have to be addressed under national legislation, and it is understood that new Regulations are being drafted currently.
In general terms, activities by land owners and occupiers, Public Bodies, State or Local Authorities must be notified, and it is a Ministerial function as to whether an Article 6 assessment is required for an individual activity notified for a particular location within an SAC or SPA. Activities which are subject to licensing or planning permission will require an Article 6 assessment if they are proposed for a location within an SAC or SPA, however a requirement for an Article 6 assessment will also arise for a plan, proposal or development located outside an SAC or SPA if there is a possibility that the conservation interests of the protected site could be adversely affected by the proposed activity. If in any doubt, clarification should be sought either from NPWS directly, or from the Development Applications Unit of DoEHLG. It is an offence to carry out notifiable activities without consent, and the perpetrator can be made liable for remedial works to restore damaged areas to their former condition.
An example of a notifiable activity is: “Altering watercourses or wetlands, including changing the height of the water table, blocking or altering the flow of water or deepening any channel”. This type of activity could arise from a range of projects, including for example:
Maintenance of existing drainage ditches by a land owner or occupier (this type of activity may be covered by a farm plan agreed with NPWS, but advance notification may still be required)
Maintenance work on an existing drainage scheme by OPW, or maintenance of a navigation channel by Waterways Ireland or by a Port Company/Authority
Ground or surface water abstraction, including increasing or altering the rate of an existing abstraction
Ground or surface water discharges, including altering the volume or characteristics of an existing discharge
Flood protection/alleviation schemes
Activities including those listed above do not necessarily have to be located within an SAC or SPA in order to have an adverse effect on its integrity; excavation and trenching work in a karst area could affect ground water flow to one or more sites designated for turlough or fen habitats, for example. A water abstraction outside an SAC could impact on surface or ground water dependent habitats or species in an SAC, or on a protected species in a river downstream of the abstraction point, by reducing flow and/or by reducing dilution or assimilative capacity for existing point discharges and diffuse silt and nutrient loadings. A water abstraction from a lake could impact adversely on any ground water dependent habitats or protected species associated with the lake, whether or not the lake habitat itself is listed as a qualifying interest for an SAC, or noted as being at unfavourable conservation status.
3. The Plan or Project is intended to benefit nature conservation in an SAC or SPA, or for a protected species, is an Article 6 assessment required?
Yes. Water Framework Directive Measures and River Basin Management Plans, or other plans which address unfavourable conservation status issues for water dependent habitats and species, must be subject to an Appropriate Assessment. The National Parks and Wildlife Service is the Competent Authority. As outlined in the flow chart, the evidence of unfavourable conservation status should be documented; this will include analysis of the pressures and pathways that are contributing to adverse effects on the habitat and/or species. Following from this analysis, the objectives and details of the plan can be developed in consultation with NPWS.
The details of the plan should then be reviewed, to assess whether they have a potential to give rise to pressures on other protected species or Natura 2000 sites, and adjusted if appropriate prior to approval and agreed implementation schedule. For example, the excavation of ponds to create habitat for Annex 4 listed Natterjack Toad Bufo calamita may cause local hydrological changes which could have an adverse effect on Annex 2 listed Vertigo species; adjustments to pond design and location could avoid adverse effects on Vertigo, or enhance habitat for them also.
Finally, monitoring programmes for the plan should be agreed and implemented, so that the effectiveness of the plan can be reviewed and any subsequent adjustments agreed and implemented.
4. How do you set the boundary of the area to be included in the Article 6 assessment?
The initial screening stage involves setting the boundaries of the assessment of significant effects, and these will vary with the type of project, the proposed location(s) in relation to water dependent protected sites and species, existing pressures, and other proposed plans or projects. The considerations that may be relevant follow from the preparation of a detailed description of the plan or project.
4.1. Project description
What is the purpose of the plan or project? What are the characteristics of the proposal, during the construction and operational phases? What pressures arise from the proposal, to what water bodies, and what waste loads may be generated? Would the proposal generate silt and/or nutrient loadings to watercourses, and would these arise in the construction and/or operational phase? Where can the project be located? (there may be a number of options).
Screening assessments should be carried out without considering the mitigation measures that form part of a project or plan. This ensures the application of the precautionary principle of avoiding potential impacts on protected sites and species in the first instance.
4.2. What types of water dependent habitat and species issues potentially arise?
For all types of water dependent habitats and species, the boundary of the area to be included in the Article 6 assessment will depend on the outcome of the review of issues that potentially arise in the context of the project description and location. It is recommended that the Development Applications Unit of the DoEHLG is consulted at an early stage of the Stage 1 screening process, so that relevant NPWS staff can provide appropriate inputs. It should be remembered that while Article 6 assessment refers specifically to SACs and SPAs designated under the Habitats Directive and the Birds Directive, there are also requirements under national legislation to avoid adverse impacts on Natural Heritage Areas (NHAs) and proposed NHAs, and on protected species wherever they occur. Protected species and habitats do occur outside areas currently subject to conservation designations, and these must be taken into account when encountered during survey work carried out in connection with appropriate assessments. The issues that may arise will vary somewhat with the type of water dependency relevant to the location of the proposal, and may include the considerations outlined below:
Transitional waters and coastal onshore habitats –
Are SACs with water dependent coastal marine, coastal transitional, and/or coastal onshore habitats present, and are any water dependent species associated with them or present in the area? Are SPAs present, and would the proposal affect feeding, breeding or roosting areas and habitats used by birds – what species and numbers could be affected, and how do these numbers relate to threshold levels for national and international importance? Are existing erosion and deposition patterns understood? How would the proposal interact with these? Do existing habitats provide protection from storm surges to other water dependent habitats? Is the project viable in view of the most recent estimates of sea level rise associated with climate change, or would it exacerbate climate change impacts? Have muddy intertidal areas in which pollutants are likely to accumulate been identified, and have sediments been sampled?
Surface water –
Is the proposal in (the catchment of) a surface water body associated with a nature conservation site or sites, and are there water dependent habitats and/or species in the site? Are there protected water dependent species elsewhere in the catchment? Are the protected water dependent habitats and species upstream or downstream of the location of the proposal, and do they have associated ground water dependent features? If SPAs are present, could the proposal affect habitats used by birds, or would disturbance issues arise? Are water dependent habitats other than Habitats Directive Annex 1 listed habitats present and could they be affected – would this reduce existing wetland buffer zones contributing to flood storage, or to nutrient and or silt load reduction?
Ground water –
Is the ground water body affected by the proposal associated with a nature conservation site or sites, and are there surface and/or ground water dependent habitats and/or species in the site? Have the zones of contribution been delineated for ground water dependent habitats and species? Are there protected water dependent species which could be impacted elsewhere in the surface catchment or zone of contribution of the ground water body? Has detailed groundwater vulnerability mapping been completed for the area? If a water abstraction, does the proposal relate to an existing spring, or to a borehole? What other abstractions relate to the ground water body?
Precipitation dependent habitats –
Is the proposal in or adjoining an SAC or SPA identified as including precipitation dependent habitats, and would it affect the hydrology of the protected area? Are the groundwater support functions potentially affected? Is there evidence that the hydrology of the protected area is already damaged? What precipitation dependent habitats are present, including bog woodland? Have areas of ground water dependent flushed habitats been identified, and are ground water dependent species associated with them? Interference with flushed areas may trigger land slides, does the proposal avoid such areas? Are there water dependent species in watercourses downstream of the proposal which could be adversely affected by increased nutrient or silt loads?
Adequacy of existing information -
Is there enough existing information to answer the questions with certainty? What studies should be carried out to clarify issues that may arise, and do these vary between different options under consideration? Are the locations and existing conservation status of the water dependent habitats and species known, and what existing pressures on them can be identified from Conservation Status assessment reporting by NPWS? Do risk assessments carried out under the Water Framework Directive, or ground water vulnerability mapping, provide useful information? What are the existing pressures that need to be taken into account in assessing cumulative impacts? Are there existing Surveillance, Operational or Investigative monitoring data relevant to the proposal?
5. Is the plan or project likely to have significant effects on N2K (Natura 2000) sites?
Arising from the Stage 1 screening assessment, the answer to this question is either no, or yes/maybe. If the screening indicates that significant effects will not arise, the process followed and reasons for arriving at this conclusion must be documented and submitted to the NPWS in the case of a notifiable activity, or to the Competent Authority in consultation with NPWS in the case of a planning or license application. It is then a matter for these agencies to respond to the proposal.
If the Stage 1 screening assessment indicates that significant effects may or will arise, the proponent of the plan or project should undertake a thorough review of their options. For example, the objective of the project could relate to a 25% increase in the capacity of a public water supply, and the main option considered was to increase an existing abstraction by 30% to include some provision for extra capacity for unforeseen contingencies. A review of the overall supply scheme could indicate that 30% of the existing treated water was being lost through supply system leakage, and that a major commercial user would be in a position to significantly reduce their water requirement. Having documented all of these issues, a Local Authority in this situation would have a basis for a funding application for the replacement of the problematic water mains.
In another example, the Stage 1 screening assessment could indicate that an existing abstraction was implicated in an unfavourable conservation status assessment for a ground water dependent Habitats Directive Annex 2 listed species which is highly sensitive to hydrological impacts. In this case, it would be necessary to reduce the existing abstraction to a volume compatible with the ecological requirements of the species in question, and to find an alternative water supply from a different water body.
In a third example, a Stage 1 screening assessment could indicate that an abstraction would lead to adverse impacts on a surface water dependent Habitats Directive Annex 2 listed species, because of existing pressures on water quality and sediment loadings which would be exacerbated during low flows. In this case, it would be necessary to establish whether a measured reduction in the existing pressures would be sufficient to allow the abstraction of a specified volume of water to proceed. If the species concerned was already at unfavourable conservation status, it would be necessary to do more than maintain the status quo by way of remedial measures to reduce existing pressures, because River Basin management measures would be required under the