Overview of EU legislation on environmental assessments
Prior assessment and the obligations according to the Habitats Directive and the Water Framework Directive
As already mentioned, there are significant synergies between the EIA/SEA Directives and substantive elements of EU environmental law. The prior assessment of projects or plans/programmes may need to comply with overlapping obligations stemming from the Habitats Directive (92/43/EEC) or the Water Framework Directive (2000/60/EC), or even both. As a consequence, a proposed project affecting a water body might not only require assessments related to Article 4(7) of the Water Framework Directive; it might also lead to the need for assessments in relation to a Natura 2000 site hosting such a water body under Article 6(3) and 6(4) of the Habitats Directive.
The Water Framework Directive and the Habitats Directive allow for the use of exemptions under certain conditions, based on previous assessment. In both cases, the authorities need to carry out the relevant procedures and tests under each Directive. Although there are some differences in the procedures and conditions, there are also potentials for synergies and streamlining of the related data collection and assessments. In other words, for example, carrying out an EIA does not guarantee fulfilment of Article 4(7) of the Water Framework Directive, but it could contribute if the assessments are streamlined. Note that also the requirements on public participation can be relevant in that context.
As such grouping of assessments and streamlining can be efficient and reduce the workload. Coordination with the EIA/SEA process is not only advisable but often less expensive and more effective. However, if the conditions of one Directive are fulfilled but not of the other, then the authorities may not authorise the project because in such a case the project would still infringe EU legal provisions (see Case C-43/10 Nomarchiaki Aftodioikisi Aitoloakarnanias and Others).
The key requirements for the protection and management of Natura 2000 sites are set out in Article 6 of the Habitats Directive. In particular, any plan or project likely to damage a Natura 2000 site has to be subject to an appropriate assessment within the meaning of Article 6(3) of the Habitats Directive and can only be authorised if it does not affect the integrity of the site, or if it fulfils the conditions for derogations under Article 6(4) of the Habitats Directive.
The step of the Article 6(3) process where it is determined whether a project or a plan is likely to cause significant effects to a Natura 2000 site, either alone or in combination with other plans and projects, corresponds to screening. Even though not explicitly mentioned, scoping is accepted as good practice and aims to precisely identify the potential issues that the assessment should cover, as well as the appropriate information to gather.
The focus of the assessment is narrower than a standard EIA – and emphasises the conservation objectives of the site. Furthermore, the mitigation measures form part of normal practice and are considered in the context of the Natura 2000 assessment. These are measures aiming to remove, pre-empt or reduce the potential impacts on the Natura 2000 sites in question. As the final part of the Article 6(4) requirements, the compensatory measures must be provided to offset the negative effects of a plan or project so that the overall ecological coherence of the Natura 2000 network is maintained. Mitigation measures are particularly relevant when assessing alternatives under the EIA Directive, both with a view to strengthening the feasibility of projects, and to improving the project’s design. The EIA Directive does not define or explicitly differentiate between mitigation and compensation. Nonetheless, when different types of mitigation actions under EIA are being considered, evolving good practice favours measures taken at source (on-site) over those 'off site' and promotes the application of the so-called ‘mitigation hierarchy’.
Similarly, the SEA is required for plans and programmes that would require an assessment under Article 6 or 7 of the Habitats Directive. With regard to the appropriate assessment under Articles 6 and 7 of the Habitats Directive referred to in point (b) of Article 3(2) of the SEA Directive, the CJEU has ruled in Case C-177/11 Syllogos Ellinon Poleodomon kai chorotakton, that the scope of those articles must be examined in order to determine the scope of Article 3(2)(b). Therefore, Article 3(2)(b) of the SEA Directive must be interpreted as meaning that the obligation to make a particular plan subject to an environmental assessment depends on the preconditions requiring an assessment under the Habitats Directive, including the condition that the plan may have a significant effect on the site concerned, being met in respect of that plan. The examination carried out to determine whether that latter condition is fulfilled is necessarily limited to the question as to whether it can be excluded, on the basis of objective information, that that plan or project will have a significant effect on the site concerned.
Article 4(7) of the Water Framework Directive provides details of the derogatory regime from the general obligation to prevent deterioration from high status to good status of a body of surface water is the result of new sustainable human development activities and to achieve good groundwater status, good ecological status or, where relevant, good ecological potential or to prevent deterioration in the status of a body of surface water or groundwater. As the first step of the process to grant the exception, an applicability assessment is required. Its purpose is to assess how a proposed project is expected to affect the environmental objectives of the affected water bodies. If the project may cause deterioration/compromise the achievement of good status/potential, then it can only be authorised whenthe conditions as outlined under Article 4(7) (a) to (d) are fulfilled.
There are several potentials for synergies and streamlining of assessments required under the EIA and the Water Framework Directive which may lead Member States to establish an EIA procedure/approach investigating all requirements of Article 4(7) of the Water Framework Directive, even if the projects fall outside the scope of Annex I & II of the EIA Directive: 1) The assessment of whether the project may lead to deterioration of the status/potential of a water body or relevant quality element might be part of the assessment of the factor water (EIA); 2) Data collection for the relevant assessments might be joint/coordinated; 2) Mitigation measures to reduce the adverse effects might be mitigated jointly; 3) The project specific component of the assessment of better environmental options according to Article 4(7)(d) of the Water Framework Directive and Article 5(1)(d) and the EIA Directive; 4) Synergies in terms of consultation prior to a project’s approval by using the EIA process for public consultation.
There are also some differences: The level of detail in the EIA environmental report may be less than what would be required for assessments in relation to the Water Framework Directive Article 4(7). Furthermore, the EIA does not require (but also does not prevent) an assessment on quality element level but rather the likely significant impact of the project on water.
Whilst there is no specific requirement to apply the mitigation hierarchy when considering practicable steps to mitigate the adverse impact on the status of the water body in the context of the Water Framework Directive, it is nonetheless recommended that good practice is applied and that all practicable measures that avoid, minimise or reduce effects at source are implemented before other, off-site measures.