JASPERS NETWORK. Birds and Habitats Directives. Experience from Ireland

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1 JASPERS NETWORK Birds and Habitats Directives Experience from Ireland Conor Ó Raghallaigh Director NPWS

2 Perspective from Ireland Implementation of Directives Infringement Actions - Hard Lessons Aquaculture Peat Extraction Galway By-pass Costs of Compliance Challenges

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7 Natura 2000 Sites Obligation to Designate SACs Art 4 Obligation to Manage according to ecological needs - Art 6(1) Prevention of Deterioration - Art 6(2) Appropriate Assessment - Art 6(3) Derogation / IROPI etc - Art 6(4) Art 6 also applies to SPAs

8 Ireland - Impetus for new approach to Article 6 Findings of CJEU against Ireland 418/04 transposition, SPA classification, Article 6, Planning, Forestry, Drainage, Aquaculture etc Reasoned Opinion on Turf Extraction (2011) Pending Infringement Actions Rulings of CJEU Commission Guidance Implementation experience since 1997

9 Barriers to Compliance Transposition failures Lack of clarity on responsibilities of consent bodies Lack of awareness of law Failures re application of law Administrative and policy deficiencies Dynamic Jurisprudence Lack of coordination between EU funding for Natura 2000 and management requirements Lack of scientific underpinning for AA Lack of certainty for developers & public

10 Response to Infringements Transposition Clarity of law, responsibilities, processes, offences and penalties. Other tools Guidance Threat Response Plans Administrative Agreements Memoranda of Understanding Implementation and self-policing

11 Response to Infringements Programmatic approach required to facilitate AA for Aquaculture & Fisheries (100 + sites) Bog Sites (103 & 150) Freshwater Pearl Mussel (29) Hen Harrier (forestry & Wind farms) (10)

12 What is AA? A scientifically based assessment Based on Natura Impact Statement / Report In light of Conservation Objectives Determines whether adverse effect on integrity of site can be ruled out, alone and in combination Must establish beyond reasonable scientific doubt that there will not be an adverse impact if plan or project is to proceed under Article 6(3) Adverse impact or doubt = refusal or Article 6(4) Lack of Data = Doubt Precautionary Principle Applies

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14 Aquaculture Licensing/permitting regime in place No AA undertaken pre 2007 Adverse finding of CJEU Need to provide scientific basis for AA Survey of over 100 sites Methodological Research required Detailed Conservation Objectives AA & licensing Sector unable to get new consents for over 6 years.

15 Community Mapping Bird Usage Mapping Site-specific Conservation Targets Monitoring & Management Plans Technical Programme

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23 Turf Extraction 53 Raised bog SACs Turf extraction a traditional activity but not generally compatible with conservation Effective need to end turf-cutting on these sites and restore them (Art 6(2) & 6(3) Comprehensive scientific research and survey needed Compensation and relocation of turf-cutters AA requirement for exceptional circumstances Potential for 6(4) case at a plan level

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31 Peatlands Policy

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33 AA pre-requisites? Scientific survey and habitat mapping Analysis of impact of common activities Detailed site Conservation Objectives Favourable Conservation Status at national Level? Site specific management plans / approaches Programmatic approach to site management When in place AA more predictable and straightforward. Good plan level AA = fewer problems later Expensive, resource intensive, takes time

34 Galway By-Pass

35 Sweetman Case Original site adopted as SCI in 2004 Extended site adopted in December hectares of Limestone pavement AA showed permanent loss of 1.47ha of limestone pavement.

36 Conclusions of Planning Inspector [project], while having a severe localised impact on the Lough Corrib [site], would not adversely affect the integrity of the site

37 State Position Planning authority got it wrong Existing Infringement action re Article 6 Informal discussion with Commission Rospuda High Court finds in favour of Planning Authority State and Sweetman appeal decision to Supreme Court Case is referred to CJEU for preliminary ruling

38 Considerations of CJEU The competent national authorities cannot therefore authorise interventions where there is a risk of lasting harm to the ecological characteristics of sites which host priority natural habitat types. That would particularly be so where there is a risk that an intervention of a particular kind will bring about the disappearance or the partial and irrepperable destruction of a priority natural habitat type present on the site concerned. (P 43) the assessment (AA) cannot have lacunae and must contain precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the works proposed on the protected site concerned. (Par 44)

39 Reflections Ruling should not come as a surprise. Logical progression from previous rulings. Clarified 6(2) & 6(3) relationship Any other outcome would have allowed for Salami effect deterioration. Upcoming Briels case (C521/12) may clarify distinction between mitigation and compensation Art 6(4) may be used more in future

40 AA Challenges Ireland has had to quickly come to grips with AA Scientific understanding and data on sites are needed need to plan ahead. Lack of fit-for-purpose consent systems has led to delays and missed opportunities Compliance takes time & resources Significant Capacity Challenges

41 Funding Challenge Scale of funding challenge slowly emerging Difficulties in securing required EU funding or appropriately focusing its use Lack of coherence at State & EU levels Priority Action Frameworks EIB & Cion funding Art 6 issues

42 42 For info or further questions on this presentation, or on the activities of the JASPERS Networking Platform please contact: Massimo Marra JASPERS Networking Platform Officer ph: