the rospuda case - · pdf filethe issue, colloquially called the rospuda case, lasted for...

Projekt „Partnerski System Zarządzania Zmianą Gospodarczą na Obszarach Natura 2000” nr POKL.08.01.02-20-027/11

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Projekt współfinansowany przez Unię Europejską w ramach Europejskiego Funduszu Społecznego oraz Budżet Państwa

The Rospuda case

Białystok, 2012


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Podlaskie Voivodeship is undoubtedly a unique region of Poland. The north-eastern

part of the country is the cleanest region as far as natural environment is concerned. It is

proved by indices regarding the amount of waste which needs cleaning, emission of air

pollution, presence of heavy metals in soil and cleanness of water – which are considerably

lower than in other areas of Poland1. Podlasie is specific for its biological diversity and a large

surface of protected areas. The region is characterized by considerable geomorphologic and

landscape diversity. In Podlasie, there are areas with high natural values, such as forest areas

with dense complexes where tree stands over 40 years old prevail.

Podlaskie Voivodeship plays a significant role in domestic and international natural

system. It results, among others, from location of the whole voivodeship on the functional

area of “the Green Lungs of Poland”. In the future, that eco-region is about to become part of

“the Green Lungs of Europe”, stretching along the middle and middle-eastern part of the

Baltic Sea.

In the region, there are unique natural objects including boggy areas, great forest

complexes, varied postglacial relief, lakes and rivers that occur in the valley of the Narew

River, the Bug River, in Suwałki Lake District (Pojezierze Suwalskie) and Lithuanian Lake

District (Pojezierze Litewskie). They are characterized by highly natural environment. Intact

forests and primeval forests, such as Białowieża Forest (Puszcza Białowieska), Augustów

Forest (Puszcza Augustowska), Knyszyn Forest (Puszcza Knyszyńska) and Kurpie Forest

(Puszcza Kurpiowska), renowned for exceptional lavishness of fauna and flora, are the chief

asset. Their specificity is the variety of forest habitats, thanks to which all types of lowland

forests can be found in Podlasie. We can meet elks, wolves, lynxes and bisons there.

All that is the reason why a considerable part of Podlaskie Voivodeship is covered by

one form of nature protection or another, e.g. a national park, a landscape park or the

European Ecological Network Natura 2000. It is worth reminding how much controversy the

latter one causes in our region.

1 A. Matwiejuk, Środowisko przyrodnicze Polski Północno-Wschodniej, [in:] Czynniki rozwoju regionalnego

Polski Północno- Wschodniej, volume II, sci. ed. B. Plawgo, Białystok 2005, p. 384.


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The idea behind this programme should be sustainable development, meaning

reconciliation of the natural environment with economic, tourist etc. human activities.

However, as we can find out, it is not always possible to be guided by the interest of nature,

disregarding the needs of humans, and it is not always possible to count on reasonable actions

of local authorities and administration.

Not so long ago, thanks to its unique nature, Podlaskie Voivodeship became famous

on the European forum, but it was not necessarily positive fame. It all happened due to small

but very valuable Valley of the Rospuda River, which was included in the European

Ecological Network Natura 2000.

The issue, colloquially called the Rospuda case, lasted for many years due to the

Augustów bypass, a fragment of which was originally designed to cut through the Rospuda

Valley. The dispute became well-known not only in Poland but also in Europe. Discussing the

above-mentioned problem without previous consideration of establishing the route of Via

Baltica road seems incomplete, because the planned bypass is an inseparable part of it. Many

mistakes were made in the process of preparing the investment of constructing a road through

Rospuda. The issue even appeared before the European Court of Justice, where it was referred

by the European Commission. In the case of Via Baltica, no alternative was prepared for the

road, and a lot of time and money was wasted The story of the dispute is briefly presented

below.

The Rospuda Valley has a unique character considering the whole country and even

Europe. It is a unique peat bog (natural habitat no. 7230), preserved in a model condition,

nearly unchanged anthropogenically2. Any intervention in that intricate hydrological system

would disturb the dynamic sustainability which determines the value of the territory. The

planned bypass was supposed to cut through two areas of Natura 2000, established by Poland

and submitted to the European Commission: Special Protection Area “Augustów Primeval

Forest” (PLB200002) and Special Area of Conservation “Augustów Refugium” (PLH200005)

In those areas, so-called priority species occur (their occurrence results in more restrictive

protection requirements for a given area than in ordinary Natura 2000 areas)3.

2 Opinion of the State Council for Nature Conservation on the Augustów bypass, “Prawo i Środowisko” no. 1, p. 60. 3 M. Bar, J. Jendrośka, Aspekty prawne sporu o Rospudę, “Prawo i Środowisko” 2007, no. 1, pp. 49-53.


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The discussions concerning the route of Via Baltica road started as early as in 1993,

and the issue of Augustów bypass has been going on since 1997, when the first design of

constructing it across the Rospuda Valley was made. Further designs appeared over the next

years. Non-governmental organizations actively participated in protests against the route

cutting through that naturally valuable object. However, they were every time dismissed by

the Voivodeship Administrative Court.

(green) – areas of Natura 2000 network (yellow) – national parks

Source: Multimedia presentation of the Minister of Environment, prof. Andrzej Kraszewski, from the

website http://klub.nfosigw.gov.pl/kronika/art,15,czego-nauczyla-nas-rospuda.html, as of 22/09/2010


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In 2005, the General Directorate for National Roads and Motorways (GDDKiA)

issued an assessment of impact of the flyover on the peat bog, which did not prove that the

investment would affect nature significantly. Proper assessment of impact the construction

of bypass would have on the peat bog was not carried out; and what is more, afforestation was

proposed as compensation for the losses, which in this case, however, was detrimental to

natural sustainability.

In 2007, the European Commission referred the design of the bypass to the ECJ. The

argument was that the decision concerning the route of the Augustów bypass had been made

with breech of communal law. Furthermore, in the case of another road investment

in Podlaskie Voivodeship, the bypass of Wasilków, the European Commission charged

Poland with wrong assessment of the effects of that enterprise for the SPA “Knyszyn Forest”

(“Puszcza Knyszyńska”), allowing realization of the investment which would have a negative

impact on the area and breaking the provisions of the Habitats Directive. Besides, the

Commission undermined the proposed compensation measure, namely afforestation of the

area of Augustów Forest.

After that event, in April 2007, the Voivodeship Administrative Court annulled the

decision of the Minister of Environment establishing the environmental conditions for

approval of realization of the investment, and in the following years, the environmental

approval and the construction permit.

In 2008, in order to solve the dispute, a Round Table was convened concerning the

Augustów bypass4, including representatives of the government, self-government, civil

engineers, scientists, ecologists and representatives of residents of Augustów. The participants

analyzed the assessments of negative environmental impact of the three variants passing by

the naturally valuable areas through the Rospuda Valley with the use of various construction

techniques (a tunnel or a fly-over), through the village of Raczki and the village of Chodorki.

The route of the bypass through Raczki (the so-called variant III A) was found the least

detrimental for the environment and the least socially conflictual.

4 Multimedia presentation of the Minister of Environment, prof. Andrzej Kraszewski, from the website http://klub.nfosigw.gov.pl/kronika/art,15,czego-nauczyla-nas-rospuda.html, as of 22/09/2010


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In the final phase, the location of the investment was discussed; detailed analysis

of the submitted proposals was also carried out. Different potential routes of the road (passing

by the Rospuda peat bog), and construction of the road (reducing the negative impact on the

peat bog occurring in the variant of 1997) were considered. In addition, environmental impact

assessment was conducted for all the variants, based on the following criteria: transport and

communication, economy, natural environment protection and social environment protection5.

The selection of the route of the by-pass through Raczki was announced by the government

of the Republic of Poland in March 2010. Therefore, the complaint to the European Court

of Justice was withdrawn.

It must be noted that from the beginning of the idea of building the bypass

of Augustów across the Rospuda Valley, ecological non-governmental organizations were

very active. They suggested alternative routes of the road, passing by that most valuable

fragment of the area protected within the framework of Natura 2000 network. Besides, they

had the support of many national institutions connected with biology, such as: The State

Council for Nature Conservation, the Division of Biological Sciences of Polish Academy

of Sciences or the Faculty Council of the Faculty of Biology of University of Warsaw6.

5 Ibidem. 6 Data after the website: http://www.viabalticainfo.org/-Obwodnica-dla-Augustowa-i-Rospudy-, as of 26/08/2009


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Source: http://www.siskom.waw.pl/siskom-dzialania-rospuda.htm, as of 22/09/2010


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Legend 1:100,000

(green) – the section of the road no. 19 from Suwałki to Augustów, modernized, adjusted to heavy traffic (roadway 7.0 m, shoulders 2 x 2.0 m)

(yellow) – design of version I of the Augustów bypass, approx. 7 km long through the forest (red) – design of version II of the Augustów bypass, approx. 7 km long (blue) – newly designed connection of the Augustów bypass with the road no. 61 and inclusion to road no. 19,

1.7 km long (red) – alternative Augustów bypass along the route Suwałki – Raczki – Augustów, 35.8 km long (red/white) – bypass of towns and villages located in the course of the alternative Augustów bypass along approx.

14 km (orange) – the designed section IV L (the forest variant) of the Augustów bypass from road no. 19 (Gatno II) to the

intersection with road no. 662, 12.2 km long (brown) – designed section of variant II b of Augustów bypass from road no. 662 to the intersection with national

road no. 61, 5.5 km long (red/black) – a section of alternative route II from Suwałki through Raczki to the intersection with variant IV L,

30.3 km long (black/white) – a section of the bypass from road no. 61 to a point behind Białobrzegi, 5.5 km long (light blue) – variant III

VARIANTS OF AUGUSTÓW BYPASS

Designed bypass Section from road no. 19 Suwałki Augustów to road no. 662

Variant II b from road no. 662 to national road no. 61

TOTAL From national road no. 19 to national road n. 61

km PLN million km PLN million km PLN million

Variant I 7.0 68.6 5.7 56.7 12.7 125.2

Variant II 7.0 80.0 5.7 56.6 12.7 136.5 Variant III 13.5 132.2 5.7 56.6 19.2 188.8

Variant IV L 12.2 119.5 5.7 56.6 17.9 176.1

When choosing the variants of Via Baltica routes, the following evaluation criteria

were taken into consideration: functional-motor criteria, economic ones, as well as criteria

related to the natural environment and social environment. On 20th October, the Council of

Ministers issued a decision changing the route of Via Baltica. It included a judgement that the

route of the pan-European transport corridor should go through Łomża, which would make it

pass by the naturally valuable areas, such as Knyszyn Forest, Biebrza River Valley and

Augustów Forest. Originally, the so-called Białystok variant was taken into consideration,

which was much less favourable for nature, as it cut through the areas covered by Natura 2000

programme. It was criticised by the European Parliament. It could have been avoided if the

designing of the route had been originally done with respect of communal law, particularly

the regulation concerning Natura 2000 areas.


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The current variant III A meets the expectations of the European Commission and is

consistent with the opinion of the European Parliament and international scientific circles. In

accordance with the results of the strategic environment impact assessment, this solution is

the least detrimental for the natural environment and very beneficial regarding transport,

social and economic criteria. The choice of that solution was connected with repetition of

some procedures, since the Łomża variant is technologically different to the Białystok one, so

it had to be submitted to public consultations and the opinion of Sanepid (sanitary and

epidemiological station)7.

Non-governmental organizations, such as Ogólnopolskie Towarzystwo Ochrony

Ptaków (Polish Bird Protection Society) or Polska Zielona Sieć (CEE Bankwatch Network),

had been trying to intervene in the issue of Via Baltica route for many years. Unfortunately,

for a long time it did not bring the desired effects for political reasons. Their opinion was

often ignored. The above-mentioned organizations indirectly met their goal in 2003, when the

Council of Europe issued recommendations for Poland to choose the route on the basis of the

strategic environmental impact assessment.

7 Ibidem.


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New grid of expressways in the north-eastern part of Poland after the decision of the Government of the Republic of Poland of 20/10/2009

(light green field) – Natura 2000 areas (dark green) – New road “Via Baltica” – S-61 (red) – National expressway S-8 (blue) – S-19 – planned new international road corridor “Via Carpatia” (grey) – Other roads Numbering of roads

Source: http://www.viabalticainfo.org/Via-Baltica-przez-Lomze, 10/09/2010 r.

One of the main principles pertaining to environmental protection is the obligation to

prevent damage. Preventive actions taken before better serve environment protection than

actions compensating for the existing damage. The obligation of prevention was particularly


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important in the case of Rospuda Valley, because human interference in that place would

result in irreparable losses. That is why in the Habitats Directive, taking actions by the state to

compensate for a loss caused by an investment having negative impact on a protected area is

an absolute exception.

The principle of prevention is closely related to the principle of prudence (Article 174

of TEC). It allows for taking preventive (protective) measures even in the situation when there

are doubts as to the scope of the existing danger (risk). Action goes before risk, because we

are not sure if the risk will come true but we cannot afford waiting to see if it actually happens

or not. In fact, our actions are taken in case the risk comes true and are proportional to the

anticipated risk8.

In that case, administration disappointed not only the citizens who protested against

the bypass. It did not meet expectations of the residents of Augustów as well, because it did

not manage to propose a route of the road which would satisfy the interests of both sides to

the greatest extent. In the Rospuda case, the obligation of informing citizens of the possibility

to participate in the decision-making process – and thus have an impact on the condition of

environment protection and on making the best choice – was not fulfilled. Similarly, the

governmental interpretation of the principle of sustainable development was erroneous. So

was presenting the bypass of Augustów as a condition for constructing motorways in general.

Looking from this perspective, it is evident that the state administration acted in the

opposite direction to the one which results from the principles of prevention and prudence and

they did not observe the standards determined by the judicature. The administration itself

generated a danger for the area recognized as subject to protection, instead of eliminating it.

In lieu of actions aimed at avoiding damage to the environment, administration took actions

that might be the direct cause of the damage, which would only later be compensated9. The

administration also failed in settling the conflict between the two values protected by law, i.e.

human life and health on the one hand and environmental protection on the other hand10.

Luckily, everything ended well both for the citizens and for the natural environment.

The issue provides proof that the law in Poland can be respected, and what is more, residents 8 T. Koncewicz, Rospuda- wspólnotowy hard case, “Edukacja prawnicza” 2007, no. 10, p. 5. 9 Ibidem, p. 5. 10 Ibidem.


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can pursue their rights with success. It is also confirmed by the attitude to environmental

regulations which were taken into consideration when taking important regional decisions.

The final of the case contributed to creating civil society, effectively pursuing their

rights11. It is an unquestionable success of the involved society, which in the case of Rospuda

was against the destruction of the national asset – the unique nature – and succeeded.

The new variant already has a legally valid environmental approval. The government,

however, does not limit itself to allocating funds for the construction of the bypass. It has

decided to allocate an additional, substantial amount for the construction of a sewage

treatment plant, a waterworks and a sewage system in the surroundings, because the river

flows through poor farming areas. The money for that purpose will be allocated by the

National Fund for Environmental Protection. It must be emphasized that it is the first such

a comprehensive project of protection of a river’s catchment area in Poland: it includes

as many as five communes: Augustów, Raczki, Bakałarzewo, Nowinka and Filipów12.

Final notes

News reports say that the Augustów bypass leading through Raczki is going to be

constructed until 2014. In 2011, a contract was signed for the design and construction of the

bypass. It is a pity that the whole procedure lasted nearly 10 years, consuming huge amounts

of unnecessarily spent funds and generating so many negative emotions.

11 Data after the website http://www.viabalticainfo.org/Via-Baltica-przez-Lomze, as of 10/09/2010 12 Miliony na Rospudę, “Gazeta Wyborcza” of 14/09/2010.


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Bibliography

Literature selection

M. Bar, J. Jendrośka, Aspekty prawne sporu o Rospudę, “Prawo i Środowisko” 2007, no. 1. Czynniki rozwoju regionalnego Polski Północno- Wschodniej, volume II, sci. ed. B. Plawgo, Białystok 2005

T. Koncewicz, Rospuda- wspólnotowy hard case, “Edukacja prawnicza” 2007, no. 10. Miliony na Rospudę, “Gazeta Wyborcza” of 14/09/2010. Opinion of the State Council for Nature Conservation on the Augustów bypass, “Prawo i Środowisko” 2007, no. 1.

Websites selection

klub.nfosigw.gov.pl

siskom.waw.pl/siskom-dzialania-rospuda.htm www.viabalticainfo.org

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