compensation in bulgarian law where are we ? konstantin ilchev

Compensation in Bulgarian Law

Where are we ?

KONSTANTIN ILCHEV

Summary

Geography of Natura 2000 in Bulgaria

Terminology of measures

Scope of the measures

Procedure involving compensatory measures

Problematic in the field of compensation

Recommendations for the Government

1. Geography2. Terminology3. Challenge4. Content/Scope5. Procedure6. Problematic7. Recommendations

Special areas of conservation- habitats directive

1. Geography2. Terminology3. Scope4. Procedure5. Problematic6. Recommendations

Special protection areas- birds directive


Unstabilized legal vocabulary

• According to the decree of 2007 on conditions and procedures for assessing the compatibility of plans, programs, projects and investment proposals with the object and goals of conservation of protected areas :

• Mitigation measures "are measures aimed at minimizing or terminating the adverse effects of the plan, program or investment proposal during or after their implementation”.

• Alternative Solutions "are alternative ways to achieve the objectives of the plan, program or investment proposal in which prevent negative impacts on the integrity of the protected area. Alternative Solutions may include a different location, different size or model of doing activities provided for in the plan, program, or investment proposal, different schedule performance or use of alternative technologies”.

• Compensatory measures are not defined under Bulgarian law.

• This is why in practice, they do not exist !


Unstabilized legal vocabulary

• Under article 20 of the Decree of 2007 on conditions and procedures for assessing the compatibility of plans, programs, projects and investment proposals with the object and goals of conservation of protected areas:

The compensatory measures and the mitigation measures are presumed to have the same signification.

• However, Article 22 of the criteria for assessing plans, programs and investment projects suggest a distinction between: mitigation measures and compensatory measures.

• But how these measures are different, we do not know !


What is the basis of measures ?

• According to Article 31 of the same decree:

“When plans, programs or investment projects are likely to have a significant impact on a protected area, they are subjected to a compatibility study with the purpose and objectives of protection of this area”.

In this way, the Bulgarian legislator has established the foundation of the compensatory measures.

Why? Because the compatibility study must include:

- Mitigation measures- Alternative solutions

- under certain conditions compensatory measures


Restricted scope

• Article 33, paragraph 1 of the Law of biological diversity:

“En case of overriding public interest and where there is no other alternative, the operator can propose a compensatory measures”.

Those are tacitly cumulative conditions that restrict the scope!

In fact, compensatory measures are not an alternative but a compromise option for very specific cases.


Inaccurate content

• Article 34, paragraph 2 of the Law of biological diversity:

“Measures shall consist of the preservation or restoration of the same habitat type or habitat of the same plant or animal species:

1. elsewhere in the damaged area of conservation;2. extension in the same or an extension of

another protected area;3. a new protected area. “

In the Bulgarian legal system there is no specific arrangements for the principles and methods to implement these measures!


Procedure of compatibility study (CS)

First stage: PP/IP are directly related to or necessary for the conservation management of the area

First stage: PP/IP are directly related to or necessary for the conservation management of the area

PP/IP likely to have a significant negative impact on the area

PP/IP likely to have a significant negative impact on the area

NO

Second stage: Impact assessment of the object and goals of the conservation area

Second stage: Impact assessment of the object and goals of the conservation area

PP/IP will result in a significant impairment of the zone


YES

Authority accept PP/IP

Authority accept PP/IP

YES

PP/IP is acceptable to the regime of Law on Biological Diversity or Law on Protected Areas

PP/IP is acceptable to the regime of Law on Biological Diversity or Law on Protected Areas

NO

The procedure is terminated

The procedure is terminated

YES

NO

No subjet to CS

No subjet to CS

Follows …

1. Geography2. Challenge3. Terminology4. Scope5. Procedure6. Problematic7. Recommendations

Impact assessment of the object and goals of the conservation

area

Impact assessment of the object and goals of the conservation

area



Are there alternatives ?Are there alternatives ?

Are there reasons of overriding public interest ?

Are there reasons of overriding public interest ? Are there considerations for

human health, public safety, or important environmental

benefits ?

Are there considerations for human health, public safety, or

important environmental benefits ?

In the area there are priority habitats and species

In the area there are priority habitats and species

PP/IP is not accepted

PP/IP is not accepted

PP/IP can be accepted.

Compensatory measures. EC is

informed

PP/IP can be accepted.

Compensatory measures. EC is

informed

PP/IP can be reconciled only at presence of the reasons of

overriding public interest or a favorable opinion of the European Commission.

Compensatory measures

PP/IP can be reconciled only at presence of the reasons of

overriding public interest or a favorable opinion of the European Commission.

Compensatory measures

PP/IP is accepted

PP/IP is accepted

NOYES

NOYES

NO

NO

NO

YES

YES YES

NO

Correction of the PP/IPCorrection of the PP/IP

1. Geography2. Challenge3. Terminology4. Scope5. Procedure6. Problematic7. Recommendations

• So, how are fixed the object and goals for the protect areas ?

The instrument is the management plan that is developed for a period of ten years (article 27 and 28 of the Law of biological diversity ).

The biggest problem is that management plans systematically exclude any economic activity.

In addition as we have seen, the scope for compensatory measures is very limited.

Moreover, the legal uncertainty and sovereign appreciation of the managing authorities is detrimental to the Bulgarian economy.

What is at stake ?


Where are the problems ?

• The majority of protected areas are governed by rigid plans and non-scalable management, and therefore no investment project cannot intervene.

• Moreover, the absence of clear and precise legal definitions of what constitutes a compensatory and mitigation measure put the private operators in the permanent doubt validation of their proposal.

• In fine, the absence of Environmental Code in Bulgaria is detrimental to the construction and the visibility of the whole legal systems in the area of environment.


Risk of legal uncertainty for operators

• Case study: Bansko ski

The facts

The concessionaire is denied access to water to supply these tracks in snow because the planned pumping is in a protected area, the management plan prohibits any economic activity

The question of compensation was not processed because the compatibility study was unfavorable to the investor.

The management plan is completely outdated and does not meet today's realities.

Nevertheless, the positive law does not call to question the plan.

Here's how an economic project developing tourism sees stop while other protected areas have been abandoned due to lack of conservation.

Recommendations

• Standardize mitigation, compensation and alternatives measures.

• Reform the law of biological diversity and the decree of 2007, particularly the article 33 which limits the scope of the compensatory measures.

• Reform the law on management plans.

• Create the Environmental Code


compensation in bulgarian law where are we ? konstantin ilchev

Documents

measures procedure

basis of measures

investment projects

investment proposals

protected areas

compatibility of plans

alternative ways

alternative technologies