Natura 2000 and Environmental Planning - Species Protection in Planning Practice
In planning processes in Germany, legal conservation tools such as the Habitats Directive impact assessment (FFH-VP) and the special species protection assessment (saP) ensure compliance with legal requirements. These requirements are primarily established by the FFH Directive and the Birds Directive, which are implemented under § 44 of the Federal Nature Conservation Act (BNatSchG). These tools help identify potential conflicts between planned interventions in nature and the laws governing habitat and species protection. Any resulting impacts are then evaluated, and measures are proposed to avoid or mitigate these impacts (see also "Habitat and Species Protection Law").
Habitat Directive (FFH) Impact Assessment (FFH-VP)
The FFH impact assessment examines whether the conservation objectives of a Natura 2000 site could be significantly impacted by a plan or a project. A site can be directly impacted (e.g., changes in land use or habitat loss) or indirectly harmed by factors such as noise, light pollution, or contamination of air, soil, and water (Scholles 2008). The FFH-VP enforces the prevention of deterioration (Art. 6 para. 2 of the Habitats Directive).
The need for an FFH-VP is determined through a preliminary assessment, which evaluates whether a project or plan might affect a Natura 2000 site. The results of this pre-assessment are based on available documentation and must be clearly documented (Peters 2004, Scholles 2008, BfN 2022).
If a significant impact cannot be ruled out, the FFH-VP assesses the effects of the plan or project, evaluating its compatibility with the conservation objectives of the site in question.
The project is not permissible if a significant impact on "the elements relevant to the conservation objectives or the protection purpose" (§ 34 paragraph 2 BNatSchG) of a Natura 2000 site is identified. These "relevant elements" are the habitat types listed in Annex I and the species listed in Annex II of the Habitats Directive, as well as bird species listed in Annex I and those protected under Art. 4 Para. 2 of the Birds Directive, including important conditions for these species (Peters 2004, Scholles 2008, BfN 2022).
Exceptions may be granted "for imperative reasons of overriding public interest" (Art. 6 Para. 4 of the Habitats Directive), provided no reasonable alternatives exist. In such cases, an additional FFH exception assessment is required (Art. 6 Para. 3 of the Habitats Directive, § 34 BNatSchG).
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Special Species Protection Assessment (saP)
All European bird species and species listed in Annex IV of the Habitats Directive are protected under § 44 Para. 1 BNatSchG by prohibitions against capture, injury, and killing, as well as prohibitions on disturbing sensitive phases like breeding and wintering. Additionally, there are bans on removing, damaging, or destroying reproductive and resting sites for wild animals and on removing or damaging plant species and their habitats. Of particular importance is the prohibition of "significant disturbance," which is triggered when the disturbance negatively affects the conservation status of a local population. The prohibition of significant disturbance, which could negatively impact the conservation status of a local population, is particularly important: ".... a significant disturbance exists if the conservation status of the local population of a species deteriorates as a result of the disturbance..." § 44 BNatSchG.
Therefore, in planning and approval procedures, a "special species protection assessment" (saP) is required to determine whether any prohibitions arise from the proposed intervention. Based on an inventory investigation and existing data, this assessment identifies which planning-relevant species may be impacted by factors and processes related to the project and evaluates whether the ecological function of breeding and resting sites can continue to be maintained. Additionally, necessary measures for reduction, avoidance, and compensation are established. If the planned intervention, despite the implementation of species protection measures, violates access prohibitions and does not meet the exceptional or exemption criteria outlined in §§ 44, 45, and 67 of the BNatSchG, it is deemed inadmissible (cf. Trautner 2020).
Sources
BfN: Federal Agency for Nature Conservation (2022). FFH Impact Assessment. Retrieved on 01.11.2022, available at https://www.bfn.de/ffh-vertraeglichkeitspruefung
BNatSchG: Federal Nature Conservation Act of July 29, 2009 (BGBl. I p. 2542), last amended by Article 1 of the Act of July 20, 2022 (BGBl. I p. 1362, 1436). Retrieved on 28.10.22, available at https://www.buzer.de/BNatSchG.htm
Peters, W. (2004): FFH Impact Assessment. In: J. Köppel, W. Peters & W. Wende. Environmental Impact Regulation. Habitat Impact Assessment. pp. 298-355. Stuttgart: Eugen Ulmer.
Scholles, F. (2008): FFH Impact Assessment. In: D. Fürst & F. Scholles. (Eds.). Handbook of Theories and Methods of Spatial and Environmental Planning. pp. 121-124. Dortmund: Rhon.
Trautner, J. (2020): Species Protection. Legal Obligations, Professional Concepts, Practical Implementation. Stuttgart: Eugen Ulmer.