compensation in water and nature conservation law meeting 1 november 2013, utrecht
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Compensation in Water and Nature Conservation Law Meeting 1 November 2013, Utrecht. Compensatory measures in Portugal: Natura 2000 and Water Resources. Márcio Albuquerque Nobre. Summary. I – Compensation regime II – Compensation and mitigation III – Case studies IV – Problems detected. - PowerPoint PPT PresentationTRANSCRIPT
Compensation in Water and Nature Conservation LawMeeting 1 November 2013, Utrecht
Compensatory measures in Portugal: Natura 2000 and Water Resources
MÁRCIO ALBUQUERQUE NOBRE
Summary
I – Compensation regime
II – Compensation and mitigation
III – Case studies
IV – Problems detected
I – Compensation regime
1. Environmental impact assessment2. Assessment of implications3. Other references4. Obligation to adopt compensatory measures
1. Environmental impact assessment
I – Compensation regime
Environmental impact assessment regime: Decree-law
69/2000, of 3 May, modified by the Decree-law 197/2005, of 8
November, concerning the environmental impact assessment of
public and private projects.
The environmental impact assessment exists in Portugal since the
Framework Law on the Environment, approved by the Law
11/87, of 7 April (articles 30 and 31).
2. Assessment of implications
I – Compensation regime
Assessment of implications for the sites Natura 2000: Decree-
law 140/99, of 24 April, modified by the Decree-law 49/2005, of
24 February, on the Natura 2000 Network Regime.
3. Other references
I – Compensation regime
References to compensatory measures:
• Cork Oak and Holly Oak protection regime (Decree-law
169/2001, of 25 May)
• Nature and biodiversity conservation regime (Decree-law
142/2008, of 24 July);
• Environmental liability (Decree-law 147/2008, of 29 July, on the
liability for environmental damages);
• Forest Code (Decree-law 254/2009, of 24 September);
I – Compensation regime
• Violation of the obligation to blend fossil fuel released for
consumption with biofuels (Decree-law 117/2010, of 25
October, on the sustainability criteria of biofuels and
bioliquids).
I – Compensation regime
Reference to the compensation principle:
• Nature and biodiversity conservation regime (Decree-law
142/2008, of 24 July): “compensation principle, by the user, of
the adverse effects caused by the use of natural resources” (art.
4/d).
4. Obligation to adopt compensatory
measures
I – Compensation regime
Regard as the Natura 2000 Network, the developer must adopt compensatory
measures if:
(i) in spite of a negative assessment of implications for the site and in
absence of alternative solutions, a plan or project must nevertheless be
carried out for imperative reasons of overriding public interest;
(ii) a project affecting a site that hosts a priority natural habitat or a priority
species must nevertheless be carried out for reasons related to human
health, public safety, beneficial consequences of primary importance for
the environment or other imperative reasons of overriding public interest
accepted by the Commission.
I – Compensation regime
Regard as the environmental impact assessment, the environmental
impact assessment authority can:
(i) force the developer of the project to adopt all the possible
compensatory measures before granting the development consent;
(ii) impose the adoption of additional compensatory measures after
the project implementation;
(iii) enact compensatory measures when the developer infringes the
conditions contained in the development consent.
II – Compensation and Mitigation
1. Definition of compensatory measures
2. Legal mentions to mitigation and compensation
3. Differences
1. Definition of compensatory
measures
II – Compensation and mitigation
Compensatory measures («stricto sensu»)
Institute of Nature and Biodiversity Conservation: «the
compensatory measures aim to offset the impacts remaining after
the application of all measures allowing to avoid, reduce or
eliminate the direct, indirect and cumulative negative impacts of
a project. The compensatory measures should provide an
equivalent compensation corresponding precisely to the negative
and irreducible effects resulting from the project».
II – Compensation and mitigation
Compensatory measures («lato sensu»)
In a broad sense, the compensatory measures include: (i) the
measures adopted to punish the violations of the conditions
imposed by the development consent; (ii) the measures imposed
in order to react against adverse environmental impacts that were
not predicted at the moment of the project approval.
2. Legal mentions to mitigation and
compensation
II – Compensation and mitigation
• The words mitigation and compensation are often used
together in the portuguese law.
• The portuguese law use mainly the words minimization
(«minimização») and reduction («redução») instead of
mitigation («mitigação»).
• Some authorities consider that the compensatory measures are
a type of mitigation measures.
II – Compensation and mitigation
Legal mentions:
• «measures to avoid, minimize or compensate the adverse effects
identified» (Art. 10/6/e) of the Decree-law 140/99, of 24 April, modified
by the Decree-law 49/2005, of 24 February, on the Natura 2000 Network
Regime);
• «environmental management measures aiming to avoid, minimize or
compensate the adverse impacts» (see art. 2/e), i), l) et n), art. 4/b) et d),
and arts. 27, 29 and 32 of the Decree-law 69/2000, of 3 May, modified by
the Decree-law 197/2005, of 8 November, concerning the environmental
impact assessment of public and private projects);
II – Compensation and mitigation
Legal mentions:
• «necessary measures to reduce or compensate the produced
impacts» (art. 40 of the Decree-law 69/2000, of 3 May,
modified by the Decree-law 197/2005, of 8 November,
concerning the environmental impact assessment of public and
private projects).
3. Differences
3.1. Purpose3.2. Implementation moment3.3. «Last resort»
II – Compensation and mitigation
3.1. Purpose
The purpose of the measures is not the same: the objective of the
mitigation measures is the reduction of the environmental
damages, while the compensatory measures aim to offset
environmental damages that can not be reduced.
II – Compensation and mitigation
3.2. Implementation moment
In general, the compensatory measures must be implemented
before the project execution, while the mitigation measures are
adopted during or after the project completion.
II – Compensation and mitigation
3.3. «Last resort»
The compensatory measures are adopted only when the
environmental damages can not be avoided, reduced or
eliminated.
III – Case Studies
1. The Wind and the Wolf
2. The Alqueva Dam Project
3. The Lakeside City
1. The Wind and the Wolf
III – Case Studies
The Wind and the Wolf
• Implantation of wind power plants in Natura 2000 sites.
• Compensatory measures related to the conservation of the
wolf.
III – Case Studies
The Wind and the Wolf
• Increase of the surface of the wolves habitats and the increase
of the nourishment availability.
• Contribution to a Fund for the wolves conservation.
III – Case Studies
The Wind and the Wolf
• The wolves are not the only species affected by the wind
power plants.
• The impacts are not necessarily offset within the
biogeographical region concerned.
2. The Alqueva Dam Project
III – Case Studies
The Alqueva Dam Project
• The Alqueva Dam is one of the largest dams in Western
Europe, creating one of the largest artificial water reservoirs in
Europe (250km2).
III – Case Studies
The Alqueva Dam Project and the fish fauna
• Obligation to study the adverse impacts on the downstream
fish fauna, in order to adjust the flow.
• The developer of the project has not yet adopted this measure.
3. The Lakeside City
III – Case Studies
The Lakeside City
• Construction of dams and other barriers in order to create
lakes and retain water permanently.
• The projects is located in a region where there is already a
strong pressure on water resources.
III – Case Studies
The Lakeside City
• The project affects:
1. an Important Birds Area (IBA);
2. an area belonging to the National Ecological Reserve ;
3. an area belonging to the National Agricultural Reserve.
III – Case Studies
The Lakeside City
• Compensatory measures that will probably cause
environmental damages.
IV – Financial compensation regime
IV – Financial compensation regime
• Fund for the Nature and Biodiversity Conservation (Fundo
para a Conservação da Natureza e da Biodiversidade) – art. 37
of the Decree-law 142/2008, 24 July.
V – Problems detected
V – Problems Detected
Main problems detected
• Inappropriate compensatory measures.
• Absence of implementation and control.
• Compensatory measures that cause environmental impacts.
• Portugal has not implemented a biodiversity banking scheme.
• Conflicts of competence.