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 assessment

2. Assessment of implications

3. Other references

4. 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. Purpose

3.2. Implementation moment

3.3. «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.