The Czech approach to appropriate assessment

The Czech approachto appropriate assessment Petr Roth

„Cultural“ remark • Across Europe, the understanding of place of legislation and its implementation in practice is highly dependent on cultural, histrorical, and even ethnical circumstances • This has to be taken into account, otherwise succesful implementation is impossible • Due to these factors + 40 years of Communism, the society in the East differs substantially from that in the West • Therefore, various „backs-up“ have to be included in the process if it really has to be successful; the successfulness of the process often is not the aim of state officials; „state“ = various interest groups acting as a rule against nature; cheating and „Potemkin´s villages“ are often national standard

CZ: basic principles employed • Appropriate assessment (AA) has a potential to become the most powerful tool of site nature protection ever it has to be taken very seriously • What is required? Highly technical expertise based on specific backgound  AA cannot be left to officials (authorities) • Often a lengthy process; often required in plans/projects obligatorily subject to EIA/SEA  merging of AA with EIA/SEA from the procedural point of view

CZ: basic principles employed (II) • Skills for AA different than those needed for EIA/SEA separation of these two types of authorisation • Centralised control of quality of work of AA, combined with methodological advice, needed • AA has to have much higher standard than other types of biological assessments – as, in fact, AA decides about the fate of both plans/projects and Natura 2000 sites (due to its binding nature)

How have these principles been introduced into practice? • Appropriate legislation • Development of special authorisation system • Elaboration of guidelines for both authorities and experts • Enforcement in practice, not on the paper only

I. Legislation • Because of choosing „integration model“ of AA into EIA/SEA process: the factual differences between these processes must have been overcame by special provisions • Bindingness of AA output had to be secured • Problem: spatial plans not treated in accordance with HD due to lack of good will of the sector of local development (in charge of building code)

II. System of special authorisation AA: what has to be assessed: • implications for the site´s conservation objectives = maintenance of the state of habitats & species for which the site has been designated (furtheron „target features“) • Target features = diverse habitats and species, i.e., components of ecosystems: → complex relationships with other species, habitats, as well as hydrology, pedology, sometimes with complicated ethological (behavioral) patterns

II. System of special authorisation 2. effect on integrity of the site: effect on functional – not (only) geographical – integrity in the ecological meaning; integrity is maintained when the ecological functions of the site related to its target features remain intact

II. System of special authorisation What do these facts conclude? To make „appropriate assessment“ one has to understand ecological relationships, linkages, characteristics within and among the sites and their environment.

II. System of special authorisation Logical basic prerequisite: education in ecology is irreplaceable. Could another, already existing authorisation be used?

II. System of special authorisation • since 1992 – authorization for EIA/SEA has been in place, based on law • nowadays ~525 authorized persons • 361 (68 %) of them are engineers, i.e., persons who had never heard about ecology • the remainder, i.e., about 32 %, not necessarily need to have ecology-like education: they could have been graduating in chemistry, geography, teaching professions, etc.

II. System of special authorisation • conclusion: these people cannot cary out Art. 6.3 assessment – they are unable to make reasonable conclusions • new type of authorization became a necessity

II. System of special authorisation Special authorized persons for Natura 2000 assesment: introduced both by Act and implementation decree (2004) • prescribed education: Ph.D. in ecology or related fields of university degrees where ecology is one of binding („state“) exams • very difficult examination • authorization time-limited (5 years) • possibility, according to law, to withdraw the authorization due to heavy or repeated breaching the law during the performance of the assessment

II. System of special authorisation • exam secured by MoE • successfulness rather low: from November 2004 until now, 14 examination sessions were held; about 80 persons applied (some of them even 4x), • 47 finaly passed • 1 authorization has already been withdrawn

III. Integrating AA with EIA/SEA SEA in CZ: 1-step-process • the plans prepared in parallel with SEA • proponent submits the plan already with a SEA report made by EIA/SEA • after the public hearing, EIA authority issues final SEA statement

III. Integrating AA with EIA/SEA How to get AA and specially authorized persons into this procedure? Solution: not replace the existing system but to amend it by AA undertaken by specially authorized persons

III. Integrating AA with EIA/SEA • proponent submits the plan with a report written by SEA +  • EIA authority issues final statement in which the expert opinion of the  is binding for the permitting authority/body

IV. Methodological assistance • 2 guidelines issued by the MoE - one for the authorities - the other for authorized persons • In preparation: - guideline on assessment of forest plans - guideline describing impact assessment related to most frequently affected habitat types and species

IV. Methodological assistance The officially recommended Czech methodology uses 3 - point - scale: 0 no impact -1 moderate impact -2 significant (negative) impact If only once(-2) appears  the whole plan has significant negative impact and must be stopped (or altered)

V. Enforcement • about 2005 – withdrawal of authorization of one person heavily breaching the law • Court treatment still awaited • educational effect enormous

Challenges regarding AA of plans • Requirements of Art. 6.3 suit to projects but often are not feasible in plans • Within plans, due to their scale, many „projects“ cannot be assessed as to their impact – parameters unknown • In such a case, AP tend to either conclude that impact is zero (in fact, unknown) or – in contrast – they refuse to plan wrongly using precautionaty principle • Provisions of Art. 6.4 not applicable to plans (what „compensatory measures“ and how they can be enforced?) • Cumulative effects at the plan level remain very challenging to reveal and assess

Thank you for your attention. petr.roth@mzp.cz

The Czech approach to appropriate assessment