PREPARING A SUCCESSFUL PROJECT PROPOSAL

Environmental Aspects

TEN-T 2012 Calls Info Day29.11.2012

Anastasios NYCHAS DG.ENV.A3, Cohesion Policy and EIA/SEA

Anastasios.Nychas@ec.europa.eu

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Environmental Aspects for TEN-T

General scope: High level of Protection of the environment Integration of environmental aspects into the TEN

operations

Legal Obligations: EU law on environment, mainly environmental impact

assessment, nature protection and water protection

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Environmental legislation most relative to TENs

Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment (SEA Directive)

Directive 2011/92/EC (old 85/337/EC) on the assessment of the effects of certain public and private projects on the environment, as amended (EIA Directive)

Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (Habitats Directive)

Directive 2009/147/EC on the conservation of wild birds (Birds Directive)

Directive 2000/60/EC (Water Framework Directive)

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Terminology

Strategic Environmental Assessment = SEA - Plans & programmes

Environmental Impact assessment = EIA Projects

Both directives concern the assessment of the effects on the environment

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Environmental Assessment

Policies Not Covered by

legislation

Plans & Programmes

covered by SEA Directive (2001/42/EC)

Projects

covered by EIA Directive

(2011/92/EU)

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Environmental Assessment

Policies Not Covered by

legislation

Plans & Programmes

covered by SEA Directive (2001/42)

Projects (public - private)

covered by EIA Directive (2011/92/EU)

Habitats and Birds Directives

Water Framework Directive

Floods Directive

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Environmental Assessment process not a document

Elaboration of a project/plan

Request for development consent/Adoption procedure-draft plan

Information on environmental impact (Env.Impact Statement-EIS/Study)-Non technical summary

Consultations –both with ENV Authorities+Public

Decision (justification)

Approval of Project/Plan

Information on decision made public

Beginning of process

End of process

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SEA Directive and the planning process (Art.4)

The environmental assessment must be carried out:

during preparation of the plan or programme

before adoption of the plan or programme

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SEA Directive When is it mandatory?

For plans and programmes:

a) prepared for agriculture, forestry, fisheries, energy, industry, transport, waste/ water management, telecommunications, tourism, town & country planning or land use

AND

which set the framework for future development consent of projects listed in the EIA Directive

OR

b) that require an assessment under Article 6 or 7 of the Habitats Directive

(Art. 3)

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EIA DIRECTIVE:General objective, main characteristics

What does the EIA Directive apply to? projects likely to have significant effects on the

environment (by virtue, inter alia, of their nature, size and location) Physical works

What are these projects subject to? a requirement for development consent an assessment of their effects on the environment so

that environment is protected

When? before consent is given

(Art. 2.1)

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EIA DIRECTIVE:What assessment?

The EIA must identify, describe, assess all

likely direct and indirect environmental effects of activities on

human beings,

fauna, flora, soil, water, air, climate, landscape,

material assets, cultural heritage

the interaction between those factors

(Art. 3)

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EIA Directive: What projects?

Annex I projects

Annex II projects

Mandatory

EIA

“Screening” by Competent authorities to

decide if an

EIA is needed or not

(Art. 4)

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EIA Directive: Transport Sector: Annex I-Points 7 and 8

7(a) Construction of lines for long-distance railway traffic and of airports with a basic runway length of 2 100 m or more;

7(b) Construction of motorways and express roads; 7(c) Construction of a new road of four or more lanes, or

realignment and/or widening of an existing road of two lanes or less so as to provide four or more lanes, where such new road, or realigned and/or widened section of road would be 10 km or more in a continuous length.

8(a) Inland waterways and ports for inland-waterway traffic which permit the passage of vessels of over 1 350 tonnes;

8(b) Trading ports, piers for loading and unloading connected to land and outside ports (excluding ferry piers) which can take vessels of over 1 350 tonnes.

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EIA: Annex II-Point 10: Infrastructure projects

(c) Construction of railways and intermodal transhipment facilities, and of intermodal terminals (projects not included in Annex I);

(d) Construction of airfields (projects not included in Annex I);

(e) Construction of roads, harbours and port installations, including fishing harbours (projects not included in Annex I);

(f) Inland-waterway construction not included in Annex I, canalization and flood-relief works;

(h) Tramways, elevated and underground railways, suspended lines or similar lines of a particular type, used exclusively or mainly for passenger transport;

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EIA DIRECTIVE: Important for the purpose of screening!

Annex II, point 13:

Any change or extension of projects listed in Annex I or Annex II, already authorized, executed or in the process of being executed, which may have significant adverse effects on the environment (change or extension not included in Annex I).

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Projects in the Transport Sector not covered by the EIA Directive-no physical works:

River Information Systems (RIS) and European Rail Traffic Management System (ERTMS) projects are, in principle, out of the scope of the EIA Directive-No physical works?

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Nature Directives(Birds and Habitats)

Directive 2009/147/EC on the conservation of wild birds ("Birds" Directive) - Special Protection Areas (SPAs)

Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora ("Habitats" Directive) - Special Areas of Conservation (SACs)

SPAs and SACs constitute the European network of Natura 2000

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Habitats Directive

Article 6(3) and 6(4) of the Habitats Directive, which applies to all Natura 2000 sites, provides for an appropriate assessment-AA- of development proposals- PLANS/PROJECTS- which are likely to have a significant impact on Natura 2000 sites

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Dealing with plans and projects(Art. 6.3/4 Habitats Directive, simplified)

Likely negative impact on Natura 2000 site?

Appropriate Assessment

yes

If negative impact

Overriding public interest? If yes

Compensatory measures

Alternatives? If no

Step-by-step assessment of plans and projectsaffecting Natura 2000 sites (Art 6.3 & 6.4)

If priority habitat/species

Commission Opinion required

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Water Framework Directive

Directive 2000/60/EC of the European

Parliament and of the Council establishing a

framework for the Community action in the

field of water policy

Aims at maintaining and improving the aquatic environment in the Community (mainly with the quality of the waters).

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Water Framework Directive

Article 4.7 describes the conditions under which "new activities“, such as infrastructures or works downgrading the status of water bodies can be accepted.

Article 4.7 requires mitigation measures (to minimise adverse effects)

If action causes deterioration to water status, steps taken to mitigate adverse effects and existence of their means to achieve objectives of the project are to be explained

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Application Form for 2012 Proposals

Contribution to environmental policy objectives and Polluter pays principle

Consultation of environmental authorities

Environmental Impact Assessment (EIA Directive)

Strategic Environmental Assessment (SEA Directive)

Impact of the Action on Natura 2000 sites

Additional environmental integration measures (audit, monitoring etc)

Water Framework Directive (article 4.7)

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A MAJOR ISSUE TO AVOID COMMON PROBLEMS:

Consultation with environmental authorities

X Authority Y Authority

Environmental Authority

TEN Authority

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What to check in practice:

Contribution to environmental policy objectives and polluter pays principle:

Check general issues, like GHG, energy savings; biodiversity etc, as well as charges, tolls etc

Environmental Impact Assessment (EIA Directive):

Check if Annex I or II; if Annex I an EIA has to be carried out.

If Annex II check if an EIA has been carried out or a formal screening (public) concludes no need for EIA

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What to check in practice

Environmental Impact Assessment (EIA Directive): If an EIA has been carried out make sure you have the

following:

1. A non-technical summary

2. Information (if not in the final decision) about consultations with the public and specialized competent authorities (nature, water etc)-Check nature/water/other clearance

3. The final decision (Development Consent) justifying the project approved with eventually compensation, mitigation or other measures as a result of the EIA process

MATURE PROJECT

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What to check in practice

Elaboration of a project/plan

Request for development consent/Adoption procedure-draft plan

1.Information on env.impact (EIS/Study)-Non technical summary

1.Information on env.impact (EIS/Study)-Non technical summary

2.Consultations – with ENV Authorities+Public

Decision (justification)

Approval of Project/Plan

3.Information on decision3.Information on decision3.Information on decision3.Information on decision

Beginning of process

End of process

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What to check in practice:

Strategic Environmental Assessment (SEA Directive):

Check if an SEA has been carried out which includes the project in question-report accordingly-see relevance

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What to check in practice:

Elaboration of a project/plan

Request for development consent/Adoption procedure-draft plan

1.Information on env.impact (EIS/Study)-Non technical summary

1.Information on env.impact (EIS/Study)-Non technical summary

2.Consultations –with ENV Authorities+Public

Decision (justification)

Approval of Project/Plan

3.Information on decision3.Information on decision3.Information on decision3.Information on decision

Beginning of process

End of process

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What to check in practice: Nature Protection Directives:

If during the EIA process or otherwise questions relating to nature protection are raised (Habitats and/or species):

An Appropriate Assessment (AA-Article 6 of Habitats Directive) was required:

It has to be carried out before the final approval decision as to take into account any mitigation/compensation measures

Provide summary and necessary certificates from competent authorities (no significant impact or significant impact associated with measures etc)

COMPENSATION/MITIGATION=PART OF THE PROJECT

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What to check in practice:

Nature Protection Directives:

If during the EIA process or otherwise questions relating to nature protection are not important (Habitats and/or species) or no nature issues become apparent:

No Appropriate Assessment (AA-Article 6 of Habitats Directive) is required:

Provide necessary certificate from competent authorities (no significant impact or certain measures etc)

COMPENSATION/MITIGATION=PART OF THE PROJECT

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What to check in practice

WATER FRAMEWORK DIRECTIVE:

If during the EIA process or otherwise questions relating to WFD are raised

Is there a risk for deterioration of water status?

If NO: Appropriate declaration (authority?)

If YES: Explain, mitigation measures etc and appropriate declaration

COMPENSATION/MITIGATION=PART OF THE PROJECT

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What to check in practice

MATURE PROJECT (Where applicable)

SEA Completed

EIA completed;

Nature assessments completed

Water Framework Directive Assessments completed

Final "Development Consent" issued eventually including mitigation/compensation measures

MITIGATION/COMPENSATION/OTHER MEASURES=PART OF THE PROJECT

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European Court of Justice – Case law

The interpretation of the EIA Directive is not static, but it is subject to interpretation by the ECJ.

Infringements procedure initiated by the Commission (Art.226 EC Treaty) or references by national courts (Art.234 EC Treaty).

Considerable body of case law, but need to apply judgments carefully.

ECJ rulings mainly concern the EIA but are also relevant for the SEA.

European Court of Justice – Case law

The EIA Directive has “a wide scope and a broad purpose”.

Member States’ discretion is limited.

Consistent emphasis on the fundamental purpose of the Directive: projects likely to have significant environmental effects must undergo an EIA (you cannot simply say that "it is not likely"-need to justify.

Exemptions to be interpreted narrowly.

Transport projects-main problems

“Salami slicing” (splitting projects into sub-sections so that they fall below screening thresholds).

Project splitting and/or dividing projects up to reduce alternatives.

Modifications of existing projects (roads, railways, ports…).

Spain – C-227/01 (doubling of tracks)

Annex I.7 must be understood to include the doubling of an existing track – this is not a mere modification under Annex II.

That the case concerned a short section of a long distance route is not relevant.

The new track would obviously create significant new nuisances, so no need to prove the existence of concrete negative effects – likelihood is sufficient.

Abraham – C-2/07 (Liège airport) An agreement between public authorities and a private

undertaking is not itself a “project”. The national authorities must determine whether such an agreement constitutes a development consent. Two issues should be considered in that context:

whether that consent forms part of a procedure carried out in several stages involving a principal decision and implementing decisions and

whether account is to be taken of the cumulative effects of several projects whose impact on the environment must be assessed globally; projects may not be split in order to avoid EIA

Modifications to the infrastructure of an airport are a modification of the airport itself and is subject to a screening.

Projected increases in airport activity must be examined among the effects of modifications to its infrastructure.

References

EIA Guidance: http://ec.europa.eu/environment/eia/eia-support.htm

SEA Guidance: http://ec.europa.eu/environment/eia/sea-support.htm

Nature 2000 http://ec.europa.eu/environment/nature/natura2000/index_en.htm

WFD: http://ec.europa.eu/environment/water/water-framework/index_en.html

WFD Article 4.7 http://circa.europa.eu/Public/irc/env/wfd/library?l=/framework_directive/guidance_documents/documentn20_mars09pdf/_EN_1.0_&a=d

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Thank You.

(and good luck!)

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