§3.2 Time-related aspects of compensation measures

Germany – Time-related aspects of compensation measures (extract from LANA 2004) (4) Measures to ensure coherence should, if technically feasible, already be executed and functional when the damage occurs. According to the EU Commission, the recreation of a suitable habitat for the affected species can only be accepted as a measure to ensure coherence if ‘the created site is available at the time when the affected site loses its natural value’ (European Commission 2000:49). There is therefore broad consensus among experts that the measures to ensure coherence should be carried out already prior to the implementation of the project (start of construction), or at least prior to the commencement of the considerable impairment of the relevant Natura 2000 site, so that they are ready to use and as functional as possible at the time of the damage occurring (e.g. Baumann et al. 1999:470, AG FFH Verträglichkeitsprüfung 1999:72, Ssymank et al. 1998:39, Weyrich 1999:1704, European Commission 2000:49, Schrödter 2001:17, FGSV 2002:18, Bernotat 2003:25). In this regard, the Federal Administrative Court (judgment of 17.5.2002) also refers to the danger of a ‘time-lag in functionality’. The EUROPEAN COMMISSION (2000:50) requires that the result of the measure must as a rule be operational when damage occurs on the site connected with the project, unless it can be proven that this simultaneity is not necessary to ensure the site's contribution to the Natura 2000 network. Certainly, these time-lags in functionality can only – if at all – be tolerated if it can be expected with certainty that the measures carried out will result in the required compensation and hence in the restoration of coherence (RAMSAUER 2000:608). In each individual case, therefore, there must be an examination into whether, in the context of the ecological coherence of Natura 2000, these time-lags in functionality can be tolerated or not. The following describes the case constellations of this (case A: complete functionality of the measures for ensuring coherence necessary at the time of the impairment; case B: at the time of the impairment, full functionality of the measures not necessary). If time-lags in functionality cannot be reconciled with the respective conservation objective, recognition as a measure for ensuring coherence must be withheld. Case A: Complete functionality of the measures for ensuring coherence necessary at the time of the impairment. The habitat type or the habitats needed by a species must be fully functional before the impairment occurs, especially if there is a danger of losing a relevant (partial) population of a species protected under Annex 2 of the FFH Directive or Annex 1 of the Birds Directive. In such cases, only measures implemented in advance which are already effective at the time of the intervention can be considered as sufficient measures for ensuring coherence. For reasons of nature conservation a time-lag in functionality cannot be tolerated. Essentially, the length of time habitats of species need to develop depends, on the one hand, on the local development periods of the relevant habitats and, on the other, on the accessibility of areas in the framework of the necessary repopulation. The potential of species for repopulation is determined among others by the spatial distribution of the species, the occurrence of concrete centres of distribution and source populations in the geographical vicinity, species-specific mobility and ability to spread, and unhampered accessibility of the areas. If an intervention affects heavily isolated occurrences of a species or species with little mobility, there is a very low potential for the habitat created by coherence measures to be newly populated or repopulated from outside. Here it is of key significance that the habitats are developed in advance as close as possible to the affected population and that the same individuals or populations can already populate the habitat prior to the intervention as an escape habitat. Repopulating the habitat at a later period can often no longer be absolutely guaranteed following the considerable impairment of the population. In the case of habitat types, development times for the habitats are determined by their regeneration capacity and by the abiotic site conditions to be created and by colonisation by characteristic plant and animal species (cf. e.g. RIECKEN et al. 1994:21ff). Full functionality in the sense of Case A can only be achieved for habitat types which have shorter development times. Advance implementation of measures In order, in case A situations, to remain able to act, it must already be possible to finance and implement the measures before final authorisation of the project (…). In practice, there is e.g. the possibility here of securing the area already before the planning approval decision by preparatory land acquisition or early land acquisition. In principle, step-by-step procedures offer more favourable conditions for this. Because of the special legal security requirement of the later approval decision, in the preliminary procedure of an FFH impact assessment (e.g. for the line determinations or in spatial planning procedures), the main decisions on the subject, location and extent of the measures for ensuring coherence must often already be taken at the draft stage. (cf. e.g. KÜSTER 2001). If the structure of the project remains the same, these will not essentially change in the course of the project authorisation; the measures can be implemented in advance as soon as the fundamental achievability of the project becomes apparent. Instruments for stocking areas and compensation measures which have already been established in other contexts also show that an earlier implementation of the measures is possible and can be put into practice from a planning point of view (cf. e.g. AMMERMANN et al. 1998, BUNZEL & BÖHME 2002). As a supplementary possibility here, agreements could also be made between the project operator and the operator of a land reserve. These agreements would allow for the measures carried out to be taken over by the operator of the land reserve and financially compensated in the unlikely event that the project could not, for some unforeseen reason, be realised after all. The following example of the planning of the A 26 also shows that, in addition to the possibility of preparatory land acquisition, it is also appropriate to use the planning and approval stages in phases of building for the advance implementation of measures. Example: Advance implementation of measures in the case of the A 26 The bird protection area impacted by the project is affected and impaired by several connected construction sections. During authorisation of the current building phase, measures for ensuring coherence are already being established which in part are only due to impairments arising out of the two following phases, for which no planning approval decision has yet been made. To allow measures for the creation of new habitats to develop their effectiveness, verification that the extent of the measures as required under the appropriate assessment has been laid down must already be provided in the planning approval for this building phase. Implementation of the measures is in this way brought forward by around five years, thus avoiding a time lag between the impairment and the compensatory function. The prerequisites for this are the availability of land areas on the scale designated necessary by experts, agreement of management restrictions for the farmers working there and where necessary the availability of funds for advance compensation paid well before the approval decision for the following building phase. The chances of such framework conditions for implementation occurring must certainly be interpreted on a case-by-case basis. In the A 26 project, such conditions are clearly present. A preparatory land acquisition made it possible to secure the areas. The approach selected in this procedure is welcome, as it prevents the threat of temporary functional deficiencies and ensures the uninterrupted coherence of the Natura 2000 network during the entire project without causing any delays to the project. Where necessary, it is also possible to have separate planning approval for the measures to ensure coherence, which provides for their earlier implementation. Of course, the project promoters always have the option of voluntarily implementing the measures early at their own cost. If implemented well in advance, in the context of the provisions on intervention, measures for ensuring coherence could have a positive impact on the extent of compensation and replacement measures, since extra costs incurred for temporary functional deficiencies might be reduced. Public sector project operators and project operators carrying out many or major projects, possibly in step-by-step approval procedures, have the largest scope for action here and therefore bear a special responsibility. Case B: at the time of the impairment, full functionality of the measures to secure coherence not necessary The type of habitat or the habitat of the species must not necessarily be fully functional prior to the onset of the considerable impairment. For certain technical reasons, which must be stated comprehensively, a time-lag in functionality is justifiable up to the full effectiveness of the measure and must be compensated for by implementing the measures on a correspondingly larger scale. It is proven that the site's contribution to the Natura 2000 network is also guaranteed in this way. In these cases too, advance implementation of the measures should be aimed for. Experience gained from implementing other nature conservation instruments allow the conclusion to be drawn that under certain circumstances, time-lags in functionality can be countered by increasing the scale of the measure. This is based among others on the fact that time lags can largely be offset in this way for certain habitat functions. Based on the time-lag in functionality, larger land additions should be selected, since while the measures (e.g. planting) cannot fulfil the functions adequately at the beginning, a significantly larger stock can nevertheless achieve approximately the same level of compensation overall. The larger scale of the measure also increases prediction security with regard to functional aspects. Example: By crossing a flowing water body, a road project leads to considerable impairment of the habitat *91E0 ‘ash-alder woods along running waters’. The loss of the habitat is to be compensated at other sites which are suitable in location and function by measures to ensure coherence; this will be achieved through appropriate planting and restoration of the habitat type. Since other accompanying measures, such as the development of old growth forests in existing similar habitat types are not possible, it is planned to implement the measure on an area many times larger, in order to offset the time-lag in functionality. It is a question here of a habitat type characterised by trees and which has a correspondingly long development time which cannot be accomplished even with an advanced implementation of measures. Nevertheless, this measure should in principle be recognised as a measure to ensure coherence provided that no specific aspects of the individual case speak against this.

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Source: EUR-Lex (Cellar) · retrieved 2026-09-07