Compensating Encroachments on Nature and Aquatic Environment The Example of the German Mitigation and Offset Regime

Dr. Moritz Reese, Helmholtz Centre for Environmental Research

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Introduction – Aspects of compensation in nature conservation and water law

1. Compensating restrictions on the users

Delineation between property rights and public interests

Agriculture: GAP subsidies, cross-compliance and contractual conservation measures

Compensation between competing water uses & trading water rights

2. Compensating encroachments on the environment

The EU Framework: Art. 6.4 FFH-Directive, ELD, WFD quality approach

The German impact prevention and offset regime

The German Impact Prevention and Offset RegimeThe basic idea

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Ubiquitously applying obligation to primarily prevent/ mitigate and, otherwise, offset detrimental impacts

Protection of special habitats and species is not sufficient to save our nature.

It is necessary to also provide a ubiquitous minimum level of nature protection and to

prevent net loss in nature and landscape while, at the same time,

providing flexiblity for efficient reconcilement of nature conservation and land use interests.

The German Intervention Prevention & Offset SchemeThe Basic Concept

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Avoid encroachments on nature & landscape

not feasible at proprotionate costs

Real offset or functional surrogate

Weighting of conflicting interestes

Offset not feasible

Nature prevails

Project inadmissable

Project prevails

Monetary compensation.

The German Impact Prevention and Offset Regime The Boost: Eco-Banking and Trading

Anticipatory & remote offset regardless of a specific project

•Enables flexible and cost-efficient integration of land-use interests

•Provides incentives for land owners to use suitable land as offset area

•Enables the assimilation of large funds for the creation and management of habitats

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BUT: Risks of selling-out and downgrading! – Strong regulatory framework needed.

The German Impact Mitigation and Offset RegimeBasic safeguards against selling-out and downgrading

• Strict & meaningful equivalence criteria; Concrete and practical offset evaluation criteria and guidlines

• Spatial coherency requirement: primacy of onsite mitigation, remote measures can only compensate for interventions in the same „natural area“

• Additionality requirement: restoration measures are only eligible as offset if not obliged by (other) laws and not subsidised

• Effective compliance regime: Implementation is supervised under a strict register and monitoring regime

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The German Impact Offset and Banking RegimeStrong role of spatial and landscape planning

• Urban development plans are to anticipate the offset for future encroachments admissable under the plan.

• Landscape-Planning regime as a crucial basis for the integration of offset banking into regional conservation concepts and, in particular, for

• Supplementing Natura 2000 network through the development habitat corridors, connecting elements and migration reserves

• Inclusion into water management (?)

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The German Impact Prevention and Offset RegimeApplicability in Water Management

• Offset regime also applicable to all structural encroachments on water bodies and wet lands

• Great potenial for restoration of ecologic status, in particular, by „stepping stone approach“

• Unclear relationship to water management instruments

• Recently new attemps to deploy compensation scheme in water management.

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Conclusions

Habitat offset and banking can contribute a lot to protecting nature and also aquatic habitats and landscapes under the following preconditions:

• A ubiquitously binding mitigation sequence regarding encroachments on ecologic functions and services,

• A strong regulatory framework and technical criteria ensuring equivalence, additionality and due implementation of offset,

• Integration into spatial planning as means of gearing offset towards efficient land use arrangements

• Sufficient administrative capacities or equivalent private controle schemes

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Thank you!

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2. The Concept of Habitat Offset and BankingReferences

• US wetland mitigation banking scheme

• UK environment loss mitigation regime + Environment Bank

• German impact avoidance and offset regime (since 1976)

• Swiss Natur- und Heimatschutzgesetz (18)

• EU: considerations on the introduction of MBIs into nature protection regimes

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4. Habitat Banking within Natura 2000An option under Article 16 (1) ?

• Exemptions regime under Article 16 similarly strict as Art. 6 (4)

• Obligation to preserve the „local population“ limits remote offset

• Commission: no exemption from killing prohibition in Art. 12

Very limited flexibility, no significant room for banking &trading

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The Example of the German Nature Impact Prevention and Offset Regime

Article 14 Nature Conservation ActInterventions in nature and landscape

(1) Interventions in nature and landscape, as defined in this Act, shall refer to any changes affecting the shape or use of ground areas, or changes in the groundwater level, which may significantly impair the performance and functioning of nature or landscape appearance.

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