The role of eco-accounts in landscape conservation and management in Germany

Éva PÁDÁRNÉ TÖRÖK

(From previous issue No.34)

The German Federal Act on Nature Conservation and Landscape Management names regulation of intervention as an instrument for the general protection of nature and landscape. The purpose of regulation of intervention is to safeguard the performance and functioning of natural resources and valuable landscape features outside of protected areas as well. The titular eco-account is a type of regulation of intervention where municipalities create „pre-compensation” reserves consisting of areas appropriate for compensation and already implemented compensation measures. Thus, municipalities can realize valueadding measures of landscape management and nature protection that are refinanced from surcharges paid by later investments bound for compensation. In the following paper I wish to demonstrate the evolution and present role of regulation of intervention and ecoaccount in Germany, with a brief outlook on similar Hungarian instruments.

Introduction

Even though at first hearing the title could make you think of a new bank product, the eco-account is actually a compensation instrument of German nature protection and landscape management which is highly popular with municipalities despite professional controversies around it. Instruments for validation of nature conservation and landscape management interests can be assigned into the following four categories: those for the conservation of areas, for the conservation of species, for landscape planning and for realization of investments. The last two columns contain instruments that join landscape management and nature conservation to regional and urban planning and sectoral plans. These tools do not take effect separately, they are connected – and sometimes even combined.

The German Federal Act on Nature Conservation and Landscape Management names regulation of intervention as an instrument of general nature and landscape conservation.2 The purpose of regulation of intervention is to safeguard the performance and functioning of natural resources and the conservation of valuable landscape features outside of protected areas as well. According to the source principle the investor has to ensure that the investment/activity/ intervention in question does not have any negative effects on its environment or, if negative effects are unavoidable, that they are sufficiently compensated. The Act defines intervention as any change affecting the change or use of land that may significantly and permanently modify and/or impair the functioning of the natural reasources or landscape scenery (BNatschG §14).

Legal background

Regulation of intervention is regulated primarily by the German Federal Act of Nature Conservation, but its connection to land-use planning and interventions resulting of changes in land-use are regulated by building law (BNatschG § 13-18., BauGB § 1a, §135a (2) 2, §200a). Due to this duality two types of regulation exist:
• regulation of intervention based on nature conservation law and
• regulation of intervention based on building law

Evolution of legal regulation

1976 Introduction of regulation of intervention (BNatschG - BGBl 1976 ) 1993 In addition to nature conservation law, regulation of intervention appears in building law as well, declaring that developments planned in land-use and spatial plans can also be regarded as serious intervention.
1998 The Act to Amend the Federal Building Code and to Reorder Spatial Planning Law (BauROG) allowed the separation of intervention and compensation in space and time
2002 Nature conservation law made the separation of intervention and compensation in space and time possible as well, introducing eco-accounts into the field of nature conservation nation-wide.
2004 As a result of the harmonisation of law in the EU, Srategic Environmental Assessments (SEA) were introduced in German legislation. Regulation of intervention, along with spatial planning, retained its previous legal context.
2009 A separate article protects agriculturally and silviculturally valuable area from land use conversion, therefore these cannot be designated for compensation. A new type of compensation (PIK)3 is introduced, where agricultural production of a certain intensity and extent can also be designated as compensation.
2013 A standardized Federal compensation decree is under discussion

Review

Since the commencement of the Act of 1976 several methodical (Kiemstedt 1996, Küpfer 2005, Bruns2007) and procedural guides have been published as a reaction to problems and imperfections requiring legal changes. States worked out their separate guides and handouts in harmony with their own legal system and objectives (HVE 2009 – Brandenburg, Bayern-2013, Berlin 2011, NRW 2010). Brief and easily understandable handouts can be found on homepages of municipalities, states, planning associations (Planungsverband) and authorities for nature conservation alike. TüvSaarland’s adoption of North Rhine-Westphalia’s guides – a first in German practice – meant a great step towards the indroduction of standardized assessment methods. Basic research is mostly focused on working out a methodology for the assessment of natural features and objectives (Vogel 2005 – assessment of biotope types, Köhler 1993 – landscape scenery).

Alongside the states, different sectors had their planning and methodology guides made, according to their own investment types (transportation – PÖU (1995), overhead power lines, wind power, cell towers – NLT (2011a,b,c,)). Professional books in the fields of landscape planning and nature conservation planning always give emphasis to regulation of intervention (Auhagen 2002, Haaren 2004, Hage 2004). Due to the gradual specialization of procedures ad the harmonisation of law in the EU more and more legal handbooks and professional journals have  been published focusing on regulation of intervention and especially on ecoaccounts (Lau 2012, Gassner 2011, de Witt 2011, Pröbistl 2009, NUR – Natur und Recht, ZUR - ZeitschriftfürUmweltrecht- Journal on environmental law).

The introduction of mandatory environmental impact assessments in relation to investments (EIA), to plans and programmes (SEA) and later Natura 2000 impact assessment questioned the necessity of regulation of intervention from time to time, but at the suggestion of parties from the economy and professional life, regulation of intervention eventually remained to be one of the main pillars of German landscape management and nature conservation (von Haaren 2006, Jessel 2006, Gerhards 2006).

The German Intstitute for Urban Affairs (DIFU- Deutsche Institut für Urbanistik) introduces all changes in building law behind regulation of intervention with explanatory handouts to planners and law enforcement agencies. (DIFU 1996, 1999, 2002, 2005). DIFU even set up a separate research devoted to the economic system of regulation of intervention and its connection with different phases of land-use planning. In 2003 an expansive survey was executed with the participation of different stakeholders (municipalities, investors, planners, contractors, authorities) in order to reveal the roots of problems (DIFU 2005).

Process of regulation of intervention

The process of regulation of intervention is regulated by federal law, therefore it is obligatory for all states. First, a decision has to be made as to whether an intervention as defined in the Nature Conservation Act – impairment of impair the functioning of the natural resources or landscape scenery – is in existence. If yes, then elimination or reduction of the adverse effect has to be achieved in the order set by law. Obligation for avoidance takes precedence, so as a first step it has to be assessed whether the adverse effects on landscape and nature can be avoided – or at least restricted to a minimum – by changing the site or the technology. If remaining effects are still considerable, obligation for compensation takes effect. There are two types of compensation: counterbalancing and substitution. If despite the compensation measures considerable adverse affects remain, the next step is consideration. If the issues of nature conservation and landscape management take priority, the intervention/ activity in question may not be carried out. If other issues (e.g. job creation) take priority, the intervention may be approved, but financial compensation may be prescribed, which has to be put to use locally. This obligation for financial compensation makes ecoaccounts possible.

The process of regulation of intervention (source: lambrecht 2007 )

The process of regulation of intervention
(source: lambrecht 2007 )

Nature conservation law determines which areas areas are appropriate as a target area for compensation and what is acceptable as a compensation measure.

/read the rest of this post in issue No.34/

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