Compensation in Water and Nature Conservation Law Meeting 1 November 2013, Utrecht

1. Compensation in Water and Nature Conservation LawMeeting 1 November 2013, Utrecht Compensatory measures in Portugal: Natura 2000 and Water Resources Márcio Albuquerque Nobre

2. Summary I – Compensation regime II – Compensation and mitigation III – Case studies IV – Problems detected

3. I – Compensation regime Environmentalimpactassessment Assessmentofimplications Other references Obligation to adoptcompensatorymeasures

4. 1. Environmental impact assessment

5. 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).

6. 2. Assessmentof implications

7. I – Compensation regime Assessment of implications for the sites Natura 2000: Decree-law140/99, of 24 April, modified by the Decree-law 49/2005, of 24 February, on the Natura 2000 Network Regime.

8. 3. Other references

9. I – Compensation regime References to compensatory measures: • Cork OakandHollyOakprotection regime (Decree-law 169/2001, of 25 May) • Natureandbiodiversityconservation 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);

10. 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).

11. 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).

12. 4. Obligation to adoptcompensatorymeasures

13. I – Compensation regime Regard as the Natura 2000 Network, the developer must adopt compensatory measures if: • 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; • 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.

14. I – Compensation regime Regard as the environmental impact assessment, the environmental impact assessment authority can: • force the developer of the project to adopt all the possible compensatory measures before granting the development consent; • impose the adoption of additional compensatory measures after the project implementation; • enact compensatory measures when the developer infringes the conditions contained in the development consent.

15. II – CompensationandMitigation Definition of compensatory measures Legal mentions to mitigation and compensation Differences

16. 1. Definitionofcompensatorymeasures

17. II – Compensationandmitigation Compensatory measures («strictosensu») 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».

18. II – Compensationandmitigation Compensatory measures («latosensu») 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.

19. 2. Legal mentions to mitigationandcompensation

20. II – Compensationandmitigation • 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.

21. II – Compensationandmitigation 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);

22. II – Compensationandmitigation Legal mentions: • «necessary measures to reduceor compensatethe 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).

23. 3. Differences 3.1. Purpose 3.2. Implementation moment 3.3. «Last resort»

24. II – Compensationandmitigation 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.

25. II – Compensationandmitigation 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.

26. II – Compensationandmitigation 3.3. «Last resort» The compensatorymeasures are adopted only when the environmental damages can not be avoided, reduced or eliminated.

27. III – Case Studies The Wind and the Wolf The Alqueva Dam Project The Lakeside City

28. 1. TheWindandtheWolf

29. 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.

30. 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.

31. 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.

32. 2. The Alqueva Dam Project

33. 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).

34. 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.

35. 3. The Lakeside City

36. 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 waterresources.

37. III – Case Studies The Lakeside City • The project affects: • an Important Birds Area (IBA); • an area belonging to the National Ecological Reserve ; • an area belonging to the National Agricultural Reserve.

38. III – Case Studies The Lakeside City • Compensatory measures that will probably cause environmental damages.

39. IV – Financial compensation regime

40. IV – Financial compensation regime • Fund for theNature and Biodiversity Conservation (Fundo para a Conservação da Natureza e da Biodiversidade) – art. 37 of the Decree-law 142/2008, 24 July.

41. V – Problems detected

42. 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.