After rain 🌧️ comes (too much) sunshine ☀️?

Petra

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Natural fires are a growing risk in the Netherlands due to increasingly long periods of drought. With the high population density and the fact that many people recreate in natural areas, the risks of a hefty fire are increasing. In this blog, we look at the confluence between nature conservation law on the one hand and the need to be able to take measures in natural areas to prevent wildfires on the other.

A well-known term in nature law is ‘Natura2000’. A term that refers to specially designated nature reserves that enjoy a high degree of protection. In the press, one hears mostly about restrictions imposed by the protection of these areas. At the same time, protecting the (limited) nature that is still there is also of great importance.

Nature protection legislation comes from Europe. Natura2000 areas are protected by the rules in the Habitats Directive. Under that directive, member states must designate special protection areas. These are zones in which certain measures are applied that are necessary to maintain or restore natural habitats and/or populations of species to a favourable conservation status. The protection of Natura2000 sites is mainly regulated by Article 6 of the Habitats Directive.

Plans or projects that are not directly related to the management of the site, or are not required for that purpose, can in principle only go ahead if a so-called ‘appropriate assessment’ is made of the impact of the plan or project on the site. That appropriate assessment takes into account the conservation objectives of that specific site. Licensing authorities may therefore only issue a permit if it is certain that the project or plan will not adversely affect the natural features of the site concerned.

However, some projects or plans can still go ahead. This is the case if there are imperative reasons of overriding public interest and there are no alternative solutions. In such a case, compensatory measures will have to be taken to ensure that the Natura 2000 site is preserved (overall coherence is maintained).

But what if such an area is also subject to rules in the context of, for example, protection against forest fires? Are projects relating to forest fire management measures also ‘projects’ requiring an appropriate assessment?

On this subject, the European Court of Justice recently issued a judgment in a case that played out in Latvia. A private Latvian nature management organisation and local Latvian authorities were knocked back by the Latvian Environmental Protection Authority. What exactly was at stake?

An inspection by the Latvian Nature Protection Authority found that about 17 kilometres of trees had been felled along nature roads in a nature reserve. This was a nature reserve designated as a special protection zone, or Natura2000 area. The regional government had previously agreed to the felling and it had been carried out by a commercial Latvian company specialising in nature management.

However, the nature conservation authority found that felling (and removal of the felled) should not be carried out lightly and ordered that the negative impact of the activities be mitigated. The felled pines had to be left in the forests (to serve as suitable material for animals living in the forests) and even additional material had to be brought in so that the amount of dead wood would be sufficient for its and animals living in it. But then again, dead wood also burns nicely, so the local authority was less keen on that.

Legally, there were five questions at play (in less legal language):

  1. If one carries out activities in a Natura 2000 forest area that are carried out to ensure maintenance of installations present there to protect against forest fires, is that also a ‘project’ under Article 6 of the Habitats Directive? This could assume that the activities do comply with national fire prevention rules.
  2. And should those activities then be considered a project “not directly related to or necessary for the management of the site”? And that those activities then do not require an appropriate assessment?
  3. Or does the Habitats Directive do impose an obligation to carry out an assessment for these projects, even if their implementation is required by national fire prevention rules?
  4. And may the activities be continued and completed before an appropriate assessment has taken place?
  5. And if those activities have been carried out without an appropriate assessment, are the competent authorities obliged to take measures to prevent significant effects and to require reparation for the damage caused?

The Court considers that although the Habitats Directive does not define ‘project’, the concept of project in the Environmental Impact Assessment Directive can be used for that purpose. Works or interventions which alter the physical condition of the site concerned are a ‘project’ in that sense. Such is the case of felling trees for the maintenance of nature roads in a Natura2000 nature reserve. So there is a ‘project’ within the meaning of Article 6 of the Habitats Directive.

The Court then considers that while it may be possible for forest fire management measures to be allowed without an appropriate assessment, they must then also be ‘necessary’ to maintain protected habitats or species at a favourable conservation status. Or to restore those habitats or species. And those measures must then be appropriate for the area in question and suitable for achieving those nature-species conservation objectives.

So one will have to consider whether the logging operations will affect the conservation objectives and make a certain risk analysis. In order to do that, an appropriate assessment will almost always have to be made anyway. The starting point is therefore that an appropriate assessment must be made unless the measures are so directly related that this can be bypassed. Even if the fire prevention measures are prescribed by other legal rules, an appropriate assessment is still required, as the assessment can determine which measures are most appropriate for that type of area.

So does that mean that if there is a negative impact on the conservation area, no fire prevention measures are possible? It does not. Even if the assessment would show that there are negative impacts and no alternatives, the Habitats Directive still allows for fire prevention measures. If sufficient compensatory measures are taken, such measures can be considered to follow from an overriding reason of overriding public interest.

In this case, the Court also ruled that the works could not be continued or completed before an appropriate assessment of their impact on the site. This may be different again if the area’s own nature management plans include certain fire protection maintenance. Such maintenance must then, of course, be necessary to maintain or restore protected habitats or species to a favourable conservation status.

Finally, the Court considers that it does not follow from Article 6 of the Habitats Directive that private individuals (in this case, the Latvian nature management company) who carried out the works would have to pay compensation for the damage or repair the damage. Indeed, the directive article is addressed to Member States (and associated competent authorities) and thus does not impose obligations on private individuals.

Returning to the beginning of this blog: Nature conservation rules and fire prevention rules can therefore overlap and affect the implementation of fire prevention measures within nature reserves. Therefore, to ensure that the necessary fire prevention measures can be implemented in a timely manner, an appropriate assessment should be carried out. This would seem to be the least risky path whereby, on the one hand, the conservation and restoration of nature is ensured as much as possible and, on the other hand, adequate anticipation of the increasingly frequent wildfires can be achieved.

You can read the European Court of Justice ruling here.

Do you have questions about nature conservation law? If so, please contact us!

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