large scale marine energy projects in natura2000 - legal aspects
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Large-scale marine energy projects in Natura 2000 sitesLegal aspectsOosterschelde & Pentland Firth case study
Sander van HeesPhD researcher
Case studies
Pentland Firth (UK) – MeyGen (first phase)
6 turbines (6 MW)
Oosterschelde (NL) – Tocardo
5 turbines (1.2 MW)
Designated Natura 2000 sites
Pentland Firth (UK) Oosterschelde (NL)
Potential impacts on protected nature
Pentland Firth (UK) Oosterschelde (NL)
Birds (eg ‘Red-throated diver’)- Displacement and a loss of foraging habitat- Bird-turbine collisions
Marine mammals (seals and cetaceans**) and fish (eg Atlantic salmon) - Mammal-turbine collisions- Barrier effects
Overall: a lack of knowledge
Habitats- Increased erosion of sand banks
Marine mammals (seals and cetaceans**) and fish (eg Sea lamprey) - Mammal-turbine collisions- Barrier effects
Birds (eg Sandwich Tern)- Less visibility because of turbulence
Overall: a lack of knowledge
Decision making process for protected habitats
1. Is there a probability, or a risk, that the project will have a significant effect on the site?
Decision making process for protected habitats
1. Is there a probability, or a risk, that the project will have a significant effect on the site?
Competent authority may grant authorisation of the project
NO
2. Appropriate assessment
YES - Can it be excluded on the basis of objective information, that the plan or project will have a significant effect on the site concerned?
- Is the project likely to undermine the conservation objectives of the site?
Decision making process for protected habitats
1. Is there a probability, or a risk, that the project will have a significant effect on the site?
3. Does reasonable scientific doubt remain as to the absence of lasting adverse effects
on the integrity of the site?
Competent authority may grant authorisation of the project
NO
2. Appropriate assessment
YES
* Mitigation *
- Are the protected habitats and species stable or increasing and are the specific structure and functions which are necessary for its long-term maintenance exist and are likely to continue to exist for the foreseeable future?
- No exclusion of all possible risks
- Are possible mitigation measures available?
- Does step 3 offer flexibility to competent authorities?
Decision making process for protected habitats
1. Is there a probability, or a risk, that the project will have a significant effect on the site?
3. Does reasonable scientific doubt remain as to the absence of lasting adverse effects
on the integrity of the site?
4. Competent authority must refuse authorisation of the project
Competent authority may grant authorisation of the project
YES NO
2. Appropriate assessment
YES
* Mitigation *
Decision making process for protected habitats
1. Is there a probability, or a risk, that the project will have a significant effect on the site?
3. Does reasonable scientific doubt remain as to the absence of lasting adverse effects
on the integrity of the site?
4. Competent authority must refuse authorisation of the project
Competent authority may grant authorisation of the project
Unless:1. No alternative solutions2. ‘Imperative reasons of overriding public interest’3. Compensation4. Inform the European Commission
YES NO
2. Appropriate assessment
YES
* Mitigation *
Decision making process for protected species
Is one of the prohibitions breached?
• Prohibition of deliberate disturbance, capture or killing.• Prohibition of deterioration or destruction of breeding sites or
resting places.
Competent authority may grant authorisation of the project
Exception, for non-bird species (eg porpoises):
- No satisfactory alternative- Populations maintain at favourable conservation status- imperative reason of overriding public interest
Yes
NO
Exception, for bird species:
- No satisfactory alternative- Listed reasons: it is in the interest of public
health and safety; for the protection of flora and fauna, etc…….
Sander van HeesPhD researcher
Utrecht Centre for Water, Oceans and Sustainability Law