§3.3.3 Step 3: Identification, assessment and adoption of compensatory measures

Once it has been fully ascertained and documented that there are no alternatives less harmful to the site and that IROPI is justified, all compensatory measures to ensure the protection of the overall coherence of the Natura 2000 network must be taken. The compensatory measures constitute measures specific to a plan or project, additional to the normal duties stemming from the Birds and Habitats Directives. These measures aim to offset precisely the negative impact of a plan or project on the species or habitats concerned. They constitute the ‘last resort’ and are used only when the other safeguards provided for by the Directive are exhausted and the decision has been taken to consider a plan/project as nonetheless having a negative impact on the integrity of a Natura 2000 site or when such an impact cannot be excluded. Compensation should refer to the Natura 2000 site’s conservation objectives and to the habitats and species negatively affected in comparable proportions in terms of quality, quantity, functions and status. At the same time, the role played by the site concerned in relation to the biogeographical distribution has to be replaced adequately. See the Article 6 Guide – section 5.4. Main types of compensatory measures Compensatory measures in the context of Article 6(4) of the Habitats Directive should: (i) be specific to the plan or project under consideration; and (ii) go beyond the measures required for the designation, protection and management of Natura 2000 sites, as set out in the conservation objectives for the site. The following cannot be considered as compensatory measures: (i) the implementation of a management plan for the site; (ii) measures for improving the conservation status of a habitat type on a site that are already planned irrespective of the plan/project; or (iii) the designation as special area of conservation of an area already identified as being of Community importance. Instead, compensatory measures should be additional to the conservation measures that need to be established and implemented in a Natura 2000 site and additional to other protection provisions required by the Habitats and Birds Directives or obligations laid down in EU law. Examples of types of compensatory measures, along with accompanying measures that can enable and facilitate their implementation, are presented in Table 11 below. It is important to note that all of these measures have to go over and beyond the normal obligations under the Birds and Habitats Directives, including those related to the designation, management and restoration of the sites. Compensatory measure Description Habitat restoration or enhancement in existing sites Increasing the habitat area in the site concerned or restoring the habitat in another Natura 2000 site, in proportion to the loss due to the plan or project, if this is not already foreseen in the site-specific conservation objectives. Habitat recreation Creating or restoring a habitat on a new or enlarged site, to be incorporated into the Natura 2000 network in view of its protection/management. Designation of a new site for the Natura 2000 network with implementation of accompanying management measures Designating a new site of sufficient quality under the Birds or Habitats Directives and implementing the appropriate protection and conservation measures. Species reintroduction, recovery and reinforcement, including reinforcement of prey species Reintroduction of species into sites where the species have disappeared (provided the scientific soundness of such a reintroduction), or re-stocking species populations in areas where they are declining, and subsequently protecting and managing those sites for the benefit of the species. Possible accompanying measures Description Land purchase and establishing/implementing the appropriate protection and conservation measures Acquiring an area of land for nature conservation and establishing/implementing the appropriate protection and conservation measures. Rights acquisition for nature conservation and establishing/implementing the appropriate protection and conservation measures Acquiring management rights over an area of land or sea and establishing/implementing the appropriate protection and conservation measures. Reserve creation Setting restrictions in the use of an area of land or sea, beyond those required to comply with other provisions of the Birds and Habitats Directives. Reduction of threats Reduction in (other) threats, either through action on a single source or through coordinated action on all threat factors. The possibility of designing and implementing effective compensation measures will vary in function of the different habitats and species concerned and local conditions. While there are many good examples of the successful restoration or creation of new habitats for wetland birds or for amphibian reproduction, for many species and habitats effective techniques for restoration are still not well-known or available. In all cases, the restoration and recreation of ecosystems and habitats of species for compensation purposes must be based on sound knowledge of restoration ecology (41). In some cases, adequate compensation through restoration may not be possible. This can be the case, in particular, in the following situations: — Where localities crucial for endangered species or habitat types are to be destroyed but cannot be replaced by similar key locations (e.g. suitable locations that play a similar role in the species range than the ones affected). — Where restoration is not feasible, either because it would require an extremely long time (e.g. a bog would require a few thousand years to be effectively restored), or due to the current lack of knowledge on the restoration ecology of the species or habitat type (e.g. this could be the case for limestone springs or natural alkaline fens). When there is no guarantee of the effective restoration or reinstatement of damaged habitats and species, compliance with Article 6(4) is not ensured. In the situations described above, however, it may still be possible, as a compensatory measure, to designate, protect and manage a new site hosting a suitable area of the same habitat(s) affected (see above in Table 12). Guiding principles for setting compensatory measures and targets The main aim of compensatory measures under Article 6(4) is to maintain the overall coherence of the Natura 2000 network. Consequently, two aspects that determine the design and implementation of compensatory measures must be addressed: proportionality and ecological functionality. These two principles set the scope and level of ambition of the measures required to compensate the plan or project’s adverse effects. Compensation measures should also aim to outweigh the worst-case scenarios of likely adverse effects. In order to ensure the overall coherence of Natura 2000, the compensatory measures proposed for a project should therefore: (a) address, in comparable proportions, the habitats and species negatively affected; and (b) provide functions comparable to those which had justified the selection criteria for the original site, particularly regarding the adequate geographical distribution. Thus, it would not be enough for the compensatory measures to concern the same biogeographical region in the same Member State. The distance between the original site and the place of the compensatory measures is not necessarily an obstacle as long as it does not affect the site’s functionality, its role in the geographical distribution and the reasons for its initial selection. See further details in the Article 6 Guide – section 5.4.2. Proportionality of the compensatory measures Maintaining the overall coherence of the Natura 2000 network means ensuring that the compensatory measures proposed address the habitats and species in proportions comparable to the adverse effects caused on the site. The competent authorities must therefore determine the relative importance of the Natura 2000 features affected and the negative impacts on them according to quantitative and qualitative criteria. This sets the baseline for compensation. Compensation ratios are best set on a case-by-case basis. They must be initially determined in the light of the information from the Article 6(3) appropriate assessment and must ensure ecological functionality. The ratios may then be redefined according to the results observed when monitoring the effectiveness. The final decision on the proportion of compensation must be justified. There is wide acknowledgement that ratios should be generally well above 1:1. Thus, compensation ratios of 1:1 or below should only be considered when it is shown that with such an extent the measures will be fully effective in reinstating structure and functionality within a short period of time (e.g. without compromising the preservation of the habitats or the populations of key species likely to be affected by the plan or project or their conservation objectives). See further details in the Article 6 Guide – section 5.5.4. Ecological functionality and location of the compensatory measures In addition to the need to address, in comparable proportions, the habitats and species negatively affected, compensation must also provide ecological functions comparable to those which had justified the selection of the Natura 2000 site in the first place. The scope of compensatory measures is determined by the specific requirements for reinstating certain ecological functions and structures that are either likely to be lost or subject to degradation as a result of the plan or project implementation. Special attention must be paid to habitat types or habitats of species that need a long time to reach the same level of ecological functionality. There is general agreement that the local conditions necessary to reinstate the ecological assets at stake are found as close as possible to the area affected by the plan or project. Therefore, locating compensation within or near the Natura 2000 site concerned where suitable conditions for the measures to be successful seems the most preferred option. However, this is not always possible and a range of priorities should therefore be applied when searching for locations that meet the requirements of the Habitats Directive: 1) Compensation within the Natura 2000 site, provided the necessary elements to ensure ecological coherence and network functionality exist within the site. 2) Compensation outside the Natura 2000 site concerned, but within a common topographical or landscape unit, provided the same contribution to the ecological structure and/or network function is feasible. The new location can be in another designated Natura 2000 site or a non-designated location. In the latter case, the location must be designated as a Natura 2000 site and be subject to all the requirements of the Nature Directives. 3) Compensation outside the Natura 2000 site, in a different topographical or landscape unit. The new location can be another designated Natura 2000 site. If compensation takes place on a non-designated location, this location must then be designated as a Natura 2000 site and be subject to all the requirements of the Nature Directives. See further details in the Article 6 Guide – section 5.5.5. Box 20 below provides a simplified example for defining the scope of compensatory measures in relation to ecological functions. Box 20 Defining the scope of compensatory measures in relation to ecological functions – example in a special protection area Ecological function affected by a plan or project: resting areas for migratory bird species heading northwards, located in an SPA. Focus of compensatory measure: (a) The compensatory measures must provide alternative resting areas for the populations of the migratory bird species. (b) The new suitable resting areas for the targeted species must be correctly located in the same migratory path. (c) The new suitable resting areas must be readily accessible to the birds that use the original Natura 2000 site affected by the project (42). The carrying capacity of the new habitat must be at least equal to the carrying capacity of the site affected. The new resting areas should be protected before that project is implemented. New resting areas for the same species but in locations out of the migratory path, or within the migratory path but far away from the resting spot affected, would not be a suitable compensatory measure. This is because the ecological functionality recreated would not be sufficient to ensure the ecological coherence of the network. A summary checklist of key issues to consider when designing compensatory measures is included at this end of this chapter (Table 15). Timing of compensation Time is a crucial dimension in the planning of compensatory measures as they should be in place, fully operational and effective before the damage on the site occurs. Timing the compensatory measures calls for a case-by-case approach. The schedule adopted must provide continuity in the ecological processes essential for maintaining the structure and functions that contribute to the overall coherence of the Natura 2000 network. This requires tight coordination between the implementation of the plan or project and the implementation of the compensatory measures. It also depends on issues such as the time required for habitats to develop and/or for species populations to recover or establish in a given area. In addition, other factors and processes must also be considered. — A site must not be irreversibly affected before compensation is in place. — The result of compensation should be operational at the time the damage occurs on the site concerned. Under certain circumstances where this cannot be fully achieved, overcompensation would be required for the interim losses. — Time lags might only be admissible when it is ascertained that they would not compromise the objective of ‘no net losses’ to the overall coherence of the Natura 2000 network. — Time lags must not be permitted, for example, if they lead to population losses for any species protected on the site under Annex II to the Habitats Directive or Annex I to the Birds Directive; priority species listed in Annex II to the Habitats Directive merit special attention. — It may be possible to scale down in time compensatory measures, depending whether the significant negative effects are expected to arise in the short, medium or long term. Specific measures to outweigh interim losses that would occur until the conservation objectives are met may be advisable. All technical, legal or financial provisions needed to implement the compensatory measures must be completed before the plan or project implementation starts, so as to prevent any unforeseen delays that may hinder the effectiveness of the measures. See further details in the Article 6 Guide – section 5.5.6. The time required for upgrading, restoring or reinstating ecological functionality depends on the biology and ecology of the habitats and species. This needs therefore to be assessed on a case-by-case basis and may require investigation or searching for evidence of restoration from similar situations. An example of the possible time lag taken to restore grassland communities is provided in Box 21 below. Box 21 Time necessary to restore grassland communities 22 studies from 7 European countries include information on the length of time taken to restore grassland communities. This includes 16 replicated trials, of which 9 were also controlled and 3 were reviews. There were 6 studies that saw positive signs of restoration in less than 5 years, 11 studies within 10 years, and 2 studies found restoration took more than 10 years. Six studies found limited or slow changes in plant communities following restoration. Source: Restoration Evidence. Action: Restore/create species-rich, semi-natural grassland. http://www.restorationevidence.org Evaluation and monitoring of compensatory measures under Article 6(4) To comply with the obligation to maintain the coherence of the Natura 2000 network, the programme of compensatory measures under Article 6(4) must demonstrate their effectiveness and provide documentation for this. Geographical location, extent and timing are all determining factors for successful compensation. Adequate compensation ratios are also crucial to ensure effectiveness of compensation before the plan or project impacts appear. The design and implementation of the compensatory measures must be comprehensive and scientifically sound, i.e.: — The conservation objectives, key features and ecological functionality to be compensated are targeted in the correct proportion. — The accompanying measures required, including technical, administrative and financial, have been incorporated. — The timetable for implementing the individual tasks within each measure, including provision for maintenance works and monitoring, is sufficiently detailed. — The scientific basis proving the effectiveness of each compensatory measure is explained and evidenced specifically for the impact it aims to offset. — The time scale for accomplishing the expected results from each of the proposed measures is stated. — The prioritisation of the measures’ implementation is justified based on the Natura 2000 conservation objectives and scientific evidence. Some critical elements for effective compensation measures in relation to their location, timing and extent are presented below. Examples of how these elements have been applied in practice are provided in Section 3 of the Annex. Location Must make it possible to maintain the overall coherence of the Natura 2000 network. Should host – or be able to develop – the specific features, structure and functions required for compensation according to the results of the appropriate assessment. Must give proper consideration to qualitative ecological aspects such as the uniqueness of the features that will be impaired. Must be determined through careful analysis of local ecological conditions so that compensation is both feasible and as close as possible to the area affected by the plan or project. Must be within the same biogeographical region (for sites designated under the Habitats Directive) or within the same range, migration route or wintering area for bird species (i.e. sites designated under the Birds Directive) in the Member State concerned. Extent Is determined by: — the extent of the plan or project’s negative effects on the key features and ecological processes, which undermine the integrity of the Natura 2000 site; — scientific evidence of the measures’ capacity to achieve the expected results for maintaining the overall coherence of the Natura 2000 network. Is best set on a case-by-case basis, according to the information generated in the appropriate assessment under Article 6(3). Is initially set with the aim of outweighing the worst-case scenarios of likely adverse effects. Is ascertained by monitoring and reporting on ecological functionality outcomes. Timing Must ensure the continuity of the ecological processes essential for maintaining the structure and functions that contribute to the overall coherence of the Natura 2000 network. Considers the coordination required between implementing the plan or project and implementing the compensatory measures. Is determined by the time required for habitats to develop and/or for species populations to recover or establish in a given area. Must include legal safeguards required for long-term implementation and the protection, monitoring and maintenance of the sites to be secured before impacts on habitats and/or species occur. May require the application of specific measures to outweigh interim losses that would occur until the conservation objectives are met. Requires the establishment of robust and complete monitoring programmes capable of assessing the success of compensation measures. The delivery of effective compensation should be verified through adequate monitoring. Effective monitoring process may require the following elements: — a monitoring plan agreed with the competent authority; — contracting a specialised company or another entity to carry out the monitoring; — identification of elements to be monitored: features of fauna and flora, water flows, soil quality, etc.; — agreement on the reporting timeline (annual, biennial, etc.); — agreement on the monitoring report; — documentation of the progress of works (pictures, field reports, etc.); — mechanism for storing and sharing the results; — cooperation with scientists with a view to publishing the results of compensation in a scientific paper. The monitoring and evaluation of compensatory measures must also allow for the possibility to factor in adverse negative effects on Natura 2000 sites that could not be foreseen in the appropriate assessment. Moreover, if the compensatory measures turn out not to be sufficient to outweigh these new impacts, they may need to be amended so that the ultimate aim of ensuring the overall coherence of the Natura 2000 network remains feasible. Monitoring of compensation measures should be closely coordinated with the overall monitoring of impacts and mitigation measures (see section 3.2.4). This approach is consistent with the requirement in EU policy to coordinate monitoring programmes arising from different pieces of legislation, for an improved efficiency in their administration. In some cases, adaptive management – which is a systematic approach for improving and adjusting conservation action by learning from management outcomes – may be required and secured through a legal agreement. In this context, adaptive management can be used to improve the implementation of compensatory measures where there may be uncertainties triggering the need for regular evaluation of the measures’ actual outcomes. This is particularly relevant where the scale of impact and therefore the scale of compensation is not clear (e.g. when compensating for impacts arising from coastal flood defence development landward of a protected site). Setting compensatory measures for plans At a plan stage, there may be some limitations to setting the necessary compensatory measures. The assessment and identification of adverse effects of a plan on the target features of certain Natura 2000 sites provides the basis for defining the need for compensatory measures. If there is enough certainty about the predicted effects on habitats, species or natural processes, and good knowledge about the extent and magnitude of those effects, it may be possible to define appropriate compensatory measures, identify the suitable location and an appropriate timing. Nevertheless, detailed information about the effects of some of a plan’s components may be missing from the plans themselves. In such cases, it may only be possible to define the kind of compensatory measures that will be necessary at the project level, e.g. to compensate the loss of certain habitats, or to provide additional habitats for certain species. As far as possible, a quantification of the needs should be provided, for instance surface area for habitat restoration. In all cases, provision should be made to ensure that the necessary compensatory measures are defined, planned and implemented at the appropriate level. A provisional definition of the compensatory measures could be included in the plan. This should be accompanied by guidelines, criteria and approaches, which would require a more complete and detailed definition when the development of the plan allows for this task to be carried out. Table 13 below provides an overview of issues relevant to the design, implementation and monitoring of the programme of compensation measures. Area of compensation: — the location and surface areas of compensation (including maps); and — the status and condition in the compensation areas. Species and habitats subject to compensation: — the former status and condition in the compensation areas of the species and the habitats subject to compensation; and — an explanation of how the proposed compensatory measures are expected to outweigh the adverse effects on the integrity of the site and will make it possible to preserve the coherence of the Natura 2000 network. Technical performance: — techniques and methods implemented to put in place the proposed compensatory measures; and — evaluation of their expected level of effectiveness. Administrative provisions: — completion of the administrative measures in place to ease implementation of the compensatory measures (e.g. any planning safeguards); and — identification of any additional administrative measures that may be required to guarantee implementation of the compensatory measures to their full effectiveness. Timing of compensation: — time schedule for implementing the compensatory measures (considering long-term implementation – see the section below on cost), indicating when the expected results will be achieved; — time schedule to convey monitoring results to the competent authorities; and — time schedule for takeover of monitoring duties for the programme of compensatory measures. Cost of compensation: — real costs of the measures implemented; — cost deviations as compared to the cost planned in the programme of compensatory measures; and — any differentiation in time between costs depending on administrative coordination action (e.g. land purchase, one-off payments relating to rights on resource use; and/or regular payments towards specific recurring measures). Action line Description Elements to include Technical Technical plan The activities to be undertaken with indication of their relevance according to: — the original site’s conservation objectives; and — their relationship to the maintenance of the overall coherence of the Natura 2000 network. Objectives and target values aligned to the site’s conservation objectives Description of the compensatory measures proposed Demonstration of the technical feasibility of the measures in relation to their conservation objectives – ecological functionality Scientifically robust explanation of effectiveness of the activities in compensating the negative effects of the plan or project Prioritisation of activities according to the nature conservation aims – timetable aligned to nature conservation objectives Monitoring outline – per activity and overall Financial Financial plan The economic cost of implementing the programme of compensatory measures Budget breakdown by cost category Budget breakdown by implementation timetable Demonstration of the financial feasibility of the measures according to the timing required and schedule for approval of the funds Legal and administrative Safeguards for nature conservation Feasibility analysis of management rights: per type of activity and per suitable location (purchase, lease, stewardship, etc.) Demonstration of the legal and/or financial feasibility of the measures according to the timing required Identification of requirements for communication to the public Coordination and cooperation – public authorities Roles and responsibilities in implementation and reporting Consultation, coordination and cooperation needs aligned to the timetable: agreement and approval of the compensatory programme by the Natura 2000 authorities, assessment authorities and the developer Monitoring plan based on progress indicators according to the conservation objectives, with reporting schedule and prospective links to existing assessment and monitoring obligations

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