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Aebhin Cawley, Scott Cawley Ltd.

Permitting of Energy Projects Engineers Ireland CPD Seminar 20th October 2014

National and European Level Legal Protection to Species and Habitats

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The Wildlife Acts (1976 Act, and various amendments including 2000 amendment Act)

Currently protected: • all wild bird species (with exceptions e.g. pest

species or species which cause agricultural damage)

• 22 other fauna species and • 86 plant species (note new Flora Protection

Order due to include moss species)

Badger Meles meles

Frog Rana temporaria

PICT0016bad.AVI

National and European Level Legal Protection to Species and Habitats

3

The Wildlife Acts (1976 Act, and various amendments including 2000 amendment Act)

Protected from: • hunting, intentional killing or injuring (and

disturbing in the case of birds) individuals or intentional destruction or damage (or interference with in the case of birds) of their breeding and resting places (even when no animals present)

• wilful cutting, picking, uprooting or damage to plant species

Exemptions from protection for certain activities in certain circumstances and/or under licences.

Badger Meles meles

Frog Rana temporaria

National and European Level Legal Protection to

Species and Habitats

4

The Habitats Directive (1992, transposed in 1997) in Ireland

Annex What is Projected Type of Protection Annex I Habitats 59 habitats types of which 16

are *priority types Ensure maintenance at, or restore to, ‘favourable conservation status’ and designation of Special Areas of Conservation

Annex II Species 26 species (none are priority)

Annex IV Species 3 plant species, all bat species, Otter , Kerry Slug, Natterjack Toad, Sturgeon, Leatherback Turtle and all Whales, Dolphins and Porpoises

Prohibits (except under derogation): • deliberate capture, killing or disturbing

individuals • deliberate destruction or damage of

their breeding and resting places • deliberate picking, collecting cutting,

uprooting or destruction of plant species

• deliberate destruction or taking of eggs from the wild

• sale or transport of any of these species

Annex V Species Various (e.g. Pine Marten and Frog)

Ensure that the taking in the wild or exploitation of these species is compatible with their being maintained at ‘favourable conservation status’.

Annex I Habitats

Mudflats and sandflats not covered

Littoral muddy sands by sea water at

low tide (1140) / Estuaries (1130)

Overall objective is to to ensure that these habitat types

are maintained at, or restored to, ‘favourable conservation status’. 5

*Alluvial Forest (91E0)



The Kerry Slug

Geomalacus maculosus

White-clawed Crayfish

Austropotamobius pallipes

6

Overall objective is to to ensure that these species

are maintained at, or restored to, ‘favourable conservation status’.



Annex II Species



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The Birds Directive (1979) in Ireland

Currently protected: • all wild bird species • 25 Annex I species (primarily winter

waterfowl, breeding seabirds and raptors) and their habitats, particularly wetlands of international importance.

• No priority species in Ireland

Bar-tailed Godwit Limosa lapponica

Whooper Swan Cygnus cygnus



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The Birds Directive (1979) in Ireland

Level of Protection: • Overall objective is to maintain the

populations of all wild bird species a level which corresponds to their ecological, scientific and cultural requirements, or to adapt the population of these species to that level i.e. maintained or restored at ‘favourable conservation status’.

• Designation of Special Protection Areas for Annex I species

• Prohibits hunting (aside from exceptions in Annex II)

• Prohibits the sale or transport of any of these species (aside from exceptions in Annex III subject to controls)

Bar-tailed Godwit Limosa lapponica

Whooper Swan Cygnus cygnus

Article 10, Habitats Directive - Wildlife Corridors / Stepping Stone Habitats

“Member States shall endeavour, where they consider it necessary, in their land-use planning and development policies and, in particular, with a view to improving the ecological coherence of the Natura 2000 network, to encourage the management of features of the landscape which are of major importance for wild fauna and flora.

Such features are those which, by virtue of their linear and continuous structure (such as rivers with their banks or the traditional systems for marking field boundaries) or their function as stepping stones (such as ponds or small woods), are essential for the migration, dispersal and genetic exchange of wild species.”





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The European Communities (Birds and Natural Habitats)

Regulations 2011

Regulation 49 - Invasive Species • It is an offence to breed, plant, release, or allows or causes to

disperse or escape, species listed on Schedule 3, except where all reasonable steps and due diligence were taken

• It is an offence to possess for sale or breeding, to sell, transport, distribute, introduce or release species listed on Schedule 3

• Where an animal species poses a threat to the objectives of the Birds and Habitats Directives the Minister may order its destruction

Pre-planning Stage

Ecological Due Diligence

Ecological Constraints Assessment

Planning Stage

Ecological Impact Assessment

Appropriate Assessment (Appropriate Assessment Screening

Statement/ Natura Impact Statement)

Specialist surveys and assessments (e.g. bats)

Derogation/Licence Applications

Post-planning & Construction Stage

Long term ecological monitoring (conditions of planning/licences)

Construction stage supervision – Ecological Clerk of Works

Legally Required Ecological

Impact Assessments

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Types of Ecological Assessments

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So what is Appropriate Assessment?

The Elephant Test: It is difficult to

describe, but you will know one when you

see it!

Appropriate Assessment

The Habitats Directive - Council Directive 92/43/EEC (as

amended)

Previously (poorly) transposed into Irish legislation by The European

Communities (Natural Habitats) Regulations, 1997 (as amended)

Now by the Birds and Habitats Regulations, 2011 and

the Planning and Development (Amendment) Act 2010 (as

amended).

Legally Required Ecological

Impact Assessments

13

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The Natura 2000 (European Sites) Network

In Ireland:

• approx. > 400 SACs covering

approx. 13,500 km2 of which

53% is land, 47% is marine or

large lakes. New marine SACs

.

• approx. 146 SPAs (more

proposed due to ECJ ruling)

European Sites in Ireland

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The Natura 2000 (European Sites) Network

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Definition of European Sites

“European Sites” is defined under:

• the Planning and Development Act 2010 as well as in

• the European Communities (Birds and Natural

Habitats) Regulations 2011.

In summary in Ireland it includes Special Areas of

Conservation and Special Protection Areas (at all stages of

the proposal/designation process).

IWEA Windfarms

(www.seai.ie downloaded

16.10.14)

The Natura 2000 Network

SACs, SPAs and NHAs

(www.seai.ie downloaded

16.10.14)

http://www.seai.ie/

http://www.seai.ie/

• Screen for the need for AA

• Carry out Appropriate Assessment

• Authorise project / plan (if no adverse • effect on site integrity)

• Consideration of alternatives

• Qualification for IROPI (in communication • with EC)

• Development of compensatory measures

AA is a Stepwise Process:

Overview of AA Steps

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Article 6(3)

Article 6(4)

General Guidance on Appropriate Assessment

Managing Natura 2000 Sites. (European Commission, 2000) Assessment of plans and projects significantly affecting Natura 2000 sites. (European Commission, 2001) 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 Coherance, Opintion of the Commission (European Commission, 2007)

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Appropriate Assessment of Plans. (Scott Wilson, Levett-Therivel Sustainability Consultants, Treweek Environmental Consultants and Land Use Consultants, 2006). Guidelines for Good Practice Appropriate Assessment of Plans Under Article 6(3) Habitats Directive from the International Workshop on Assessment of Plans under the Habitats Directive December 2009 (http://www.levett-therivel.co.uk/)

AA Guidance

http://www.levett-therivel.co.uk/



General Guidance on Appropriate Assessment

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Appropriate Assessment of Plans and Projects in Ireland Guidance for Planning Authorities (DoEHLG, Rev 1 Feb, 2010) Waste Water Discharge Licensing Appropriate Assessment : Note on Note on Appropriate Assessments for the purposes of the Waste Water Discharge (Authorisation) Regulations, 2007 (S.I. No. 684 of 2007) (EPA, undated, circa. 2009?)

Circular L8/08 2 September 2008 - Water Services Investment and Rural Water Programmes – Protection of Natural Heritage and National Monuments. Circular Letter PD 2/07 and NPWS 1/07 - Compliance Conditions in respect of Developments requiring (1) Environmental Impact Assessment (EIA); or (2) having potential impacts on Natura 2000 sites.

Circular Letter NPW 1/10 & PSSP 2/10 - Appropriate Assessment under Article 6 of the Habitats Directive: guidance for Planning Authorities, Department of Environment, Heritage and Local Government, 11th March 2010. Circular Letter SEA 1/08 & NPWS 1/08 - Appropriate Assessment of Land Use Plans. Department of Environment, Heritage and Local Government, 15th February, 2008.

AA Guidance

The implemenation of the

Birds and Habitats Directives

in estuaries and coastal zones

– with particular attention to

port development and

dredging. (EC, Jan 2011)

Wind Energy Developments

and Natura 2000. (EC, Oct 2010)

Non-energy Mineral

Extraction and Natura 2000. (EC, July 2010)

Sector Specific Guidance on Appropriate Assessment

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AA Guidance

• Consent body receives the proposal, screens the proposal for the

need to carry out an AA, and then carries out the AA using the

information provided by the proponent plus any additional

information required.

• Proponent prepares the proposal and provides the information for

the AA to be carried out e.g. Screening Statement for Appropriate

Assessment, Natura Impact Report or Natura Impact Statement.

Role of the Competent/Public Authority in AA

• Generally the consent body asks the proponent to prepare all AA

documentation but ultimate responsibility for the AA lies with

the consent authority, including recording the decision in a

clear, logical, transparent manner.

Role of the Consent Body

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• For Part 8 local authority projects, where an AA is required, ABP is

the consent body.

• Exempted development is no longer exempt of planning where AA

is required.

• Where AA is required, there may be a need for EIA.

• AA screening is required for renewals, reviews, revisions and

extensions of consents (e.g. extension of planning permissions,

renewals of discharge licences)

Key issues to be Aware of:

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Overview of AA Process

• Retention permission cannot be granted where an AA is required

(aside from exceptional circumstances of substitute consent).

• In retrospective AA (i.e. for substitute consent), do not assume that

an EIA undertaken has met the needs of AA (ref. incorrect

transposition of Habitats Directive in Ireland pre-2010/2011).

• Provisions/arrangements for dealing with AA where there are

multiple consent bodies.

• Duty for consent body to give reasons for either requiring, or not

requiring, AA.

Key issues to be Aware of:

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Overview of AA Process

Case Study 1:

Use of Mitigation in AA Screening

Request for Further

Information from Mayo

County Council (Oct 2010):

In relation to the NIS requested,

this should refer to both the

construction and operation

phase of the development. The

AA Screening submitted to the

Planning Authority just refers to

best practise. In this regard, it

is felt that more detail is required

to include both the construction

and operation phase. Following

the precautionary principle

Mayo County Council, being the

competent authority in this

instance, has decided a NIS is

required.

“Having regard to the nature and limited extent of the survey information that is included in the Environmental Impact Statement relating to flora and fauna and specifically relating to birds on a nearby site and the proximity of the site of the proposed development to the candidate Special Area of Conservation and Special Protection Area the Board is not satisfied that any further expansion of wind turbines on this site would not have a potentially significant negative impact on bird habitats and bird migratory paths in the area. In deciding not to accept the Inspector’s recommendation to grant permission, the Board considered that it would not be appropriate to rely on the bird survey carried out for a nearby site for any further expansion of the wind farm.” An Bord Pleanala Decision, Sept, 2010.

Case Study 2:

Lack of Adequate Baseline Data

Retail / Commerical Development, Ballinasloe, Co. Galway

Potential Impacts on the River Suck Callows SPA.

Case Study 3:

Lack of Adequate Baseline Data

Galway County Council’s Request for Further Information (2008):

The EIS is deficient in respect of its assessment of the likely effects on birds. No bird

surveys were undertaken to determine usage of nearby grasslands and callows by wintering

or breeding birds. The section on birds in the EIS does not constitute an Appropriate

Assessment as is required under Article 6(3) of the EU Habitats Directive. Further survey

and assessment should be undertaken to determine whether the proposed development on

its own, and in combination with other developments, is likely to have an adverse effect on

the integrity of the SPA.

Windfarm Proposal at Tulla, Co. Clare within the Slieve Aughty Mountains SPA

ABP decision to refuse was however because:

“The site of the proposed development is in an exposed upland area of blanket bog,

adjoining an intact, active bog, Glendree Bog SAC and outside any of the areas

identified as “Strategic Areas” or “Acceptable in Principle” in the Wind Energy

Strategy of the current Clare County Development Plan, 2005-2011 (as amended).”

An Bord Pleanala Reference 08/1950 (Decision Date 8th Oct 2010)

ABP inspector’s report recommended refusal because “…it is considered that an

appropriate assessment of the implications of the proposed development for the

conservation objectives of the Slieve Aughtry SPA must conclude that the proposed

development would adversely effect the integrity of that SPA because the Board

cannot ascertain beyond reasonable scientific doubt that the proposed

development, both in itself and in combination with other projects, would not have

negative effects on the hen harrier population in the area, even if those effects are

unlikely.

Case Study 4: Difficulties in Assessing Impacts with Certainty

Case Study 5: Determining Significance of Impacts and Site Integrity

Limestone pavement (8240)


“Notwithstanding the significant negative ecological impact

involving loss of approximately 3.4ha of limestone pavement at

Coolagh and 0.8ha of alkaline fen at Dangan, it is concluded that

the overall integrity of the cSAC would not be adversely

affected. Through mitigation, it is predicted that the ecological

integrity and functioning of the affected portion of the cSAC will

not change to the degree that the overall viability of species or

habitats of high conservation importance (protected or

otherwise) in the wider area is jeopardised”.

Conclusions in NIS


Points of Interest

1. Natura 2000 site boundary changed –

appeals process on-going during EIA/AA

process

2. Difference of opinion between the state’s

nature conservation authority (National

Parks and Wildlife Service), and

proponents of the scheme/ABP/High Court

– application of precautionary principle

where doubt exists?


Proposed Golf Course and Holiday Homes in South West Ireland

Case Study 6:

How to do it right

Proposed Golf Course and Holiday Homes

Case Study 6:

How to do it right


Kerry Slug Lesser Horseshoe Bat

Case Study 6:

How to do it right

Mar Apr May Jun Jul Aug Sept

Oct Nov Dec

Habitat Surveys

Detailed Botanical

Otters, badgers and

squirrels

Winter Bats

Summer Bats

Breeding Raptors

Breeding Waders

Kerry slug

Seals

Aquatic Assessments


Case Study 6:

How to do it right

Mar Apr May Jun Jul Aug Sep Oct Nov Dec

Vegetation Clearance

Bat Tree Felling *

Bat Building Demolition *

Blasting

Stream Diversions *

Works in the Foreshore *

Works within Askive Wood

SAC *

Works Within Kenmare

River SAC *


Case Study 6:

How to do it right


“...on the basis of the ... design of the golf

course...and the other assurances given, I

believe that the development should not have

the serious negative impact referred to in our

report...

...we hope that in time this development will

illustrate how bat conservation and

development can co-exist, providing that

sufficient time is given for all interested parties

to carry out the necessary studies, share their

concerns and agree on concessions...”

Case Study 6:

How to do it right

Zonation for birds and bats in regard of wind farms impact

• Croatia has ratified the Kyoto Protocol - commits Croatia to cut emissions of carbon dioxide and other gases that contribute to global warming to 5 % below 1990 levels by 2012.

• Croatia is expected to become a European Union member by 2012, and it would therefore join the EU plan to trim gas emissions by at least 20 percent from 1990 levels by 2020.

• Croatia also has a mandatory target of 20 % share of Renewable Energy Sources by 2020 (2009/28/EC; RES Directive).

Case Study 7: Dealing with Cumulative Impacts at Plan Stage

Material provided by Daniela Schneider, Croatian State Institute for Nature Protection

• 18 Special Protection Areas - wind farms are planned in 12

• 261 Sites of Community Importance - wind farms are planned in 53



27 out of 75 planned wind farms are located in zone 3, 16 in border area between zone 2 and zone 3 and 32 in zone 2



Map of COAST area with zones around known bats colonies Red: potential locations of planned wind farms in County spatial plans

On the base of these criteria, 3 zones were established: ZONE 1- minimal impact (light grey), ZONE 2 – negative impact (dark grey), ZONE 3 – significantly negative impact (black). 10 areas have been extracted for 3 zones.



Case Study 8

Cumulative Impacts

Material provided by Stanislav Březina, Jiří Flousek, Eva Chvojková, Josef Harčarik, Jan Vaňek & Pavel Bauer of Ametyst.

Case Study 9

Cumulative Impacts


Case Study 8

Cumulative Impacts


1. Lack of adequate data

2. Screening with/without mitigation: design vs add-on

mitigation

2. Fixation with 15km buffer zone.

3. Who is qualified to undertake AA/AA Screening?

4. AA outside of the land use planning system.

5. Role of the NPWS?

6. Uneven application of standards by public/competent

authorities

7. Difficulties in handling cumulative impacts.

8. Deficiencies in recording AA decisions in a transparent,

reasoned, clear and conclusive manner.

Appropriate Assessment Lessons Learned

Get reliable ecological information/advice at an early stage.

Ecology - Lessons Learned

Plan early for seasonal issues in ecology (e.g. winter birds, spring & summer habitat surveys, autumn bat migration)

DO:

Fully consider all alternatives (including site location, project design, the ‘zero’ alternative)

Identify specific nature conservation objectives / policies e.g. for “stepping stone” habitats.

Restrict development / activity types in specific areas e.g. energy project zones in land use plans Specify objectives for specific development types e.g. no unattenuated surface water discharge to Natura 2000 sites.

Avoid doing essential ecological surveys

Ecology - Lessons Learned

Leave Appropriate Assessment till the last minute

DON’T:

Assume there is nothing of ecological importance on your site / in your plan area

Assume that if your site is outside of the Natura 2000 Network you don’t need to do Appropriate Assessment

Forget to look at cumulative impacts of other developments Shift responsibility down the line to project stage Specify vague / generic mitigation measures Leave uncertainty about who will be responsible for implementing mitigation measures, when and how.

Thank You

Aebhin Cawley Scott Cawley Ltd.

01-6769815 [email protected]

Thank You

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