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Dealing with nature

Dealing with human intervention in nature

Every mining activity is associated with interventions in nature and landscape and can result in serious environmental impacts. At the same time, however, a contribution can be made to the conservation of biodiversity on former minesites and on certain areas of operating minesites. Compensatory actions, such as compensatory or substitution measures and compensatory payments are intended to compensate for interventions in nature and landscape and to restore their natural function.

It is estimated that around 1 % of Germany’s entire area will be necessary to ensure the country’s natural resources in the medium to long term. The area currently being mined amounts to 29 km², or 0.008 % of the total area of Germany ( Federal Institute for Geosciences and Natural Resources 2016, BGR ). This corresponds to a daily area utilisation of an average of 8 ha. However, the areas used for the extraction of natural resources differ in their concentrations in the various regions, as a result of which the associated interventions in nature and landscape also evince great regional differences and concentrations.

Legal framework

In the Federal Nature Conservation Act (BNatSchG), the general principle regarding interventions is that major interventions in nature and landscape are to be primarily avoided and minimised by the polluter. Unavoidable interventions are to be compensated by means of compensatory or substitution measures (hereinafter ‘compensatory measures’) or, if this is not possible, by a compensatory payment in monetary form (§ 13 BNatSchG). This general principle thus forms a processing cascade, which first provides for avoidance, then compensatory measures and, as a last resort, a compensatory payment. In the case of mining measures, this avoidance rule primarily targets a variant that is as environmentally-friendly as possible, since site alternatives due to the type of natural resource and technical considerations cannot be possible, and zero variances can be eliminated due to the economic priority of natural resources extraction. Unavoidable interventions in nature and landscape must therefore be offset or mitigated, particularly through the promotion of natural succession, renaturation, near-natural design, rehabilitation or recultivation (§ 1(5), P. 4f. BNatSchG).

Compensatory measures must be maintained and legally secured during the required period of time. The period of maintenance is determined by the approval authority in the certificate of approval. The perpetrator of the intervention (the polluter) or its legal successor is responsible for the execution, maintenance and safeguarding of the compensatory measures.

In accordance with German federal and European regulations, the possible effects of a project on particularly-protected species of animals and plants (special species protection legislation) and on the European protected area network NATURA 2000 must be examined in the approval procedures for nature conservation law interventions.

The BNatSchG contains a full regulation, viz. that the laws and norms of the Federal States on the instrumental design of the intervention regulation may not contradict it. In order to make the regulation more applicable, some Federal States have made supplementary regulations, whereby the practice differs from state to state, e.g. in the concrete assessment of the amount and the use of compensatory payments.

Approval practices in the extraction of natural resources

If a company plans to intervene in nature and landscape by extracting natural resources, the nature conservation legislation on intervention regulation is dealt with at the level of the responsible approval authority. Depending on the respective type of natural resource, these are either the mining authorities of the German states (in the case of free-to-mine and privately-owned natural resources) or the state authorities in charge of the execution of the state-based excavation laws, the building and water resources management laws and the Federal Immission Control Act (in the case of so-called landowners’ natural resources). This procedure corresponds to the so-called ‘piggy-back’ procedure, which stipulates (in §17 BNatSchG) that the approval of all projects, which nevertheless require approval by an authority due to other legal provisions, will be carried out by the competent authority in conformity with the responsible nature conservation authority. The competent nature conservation authority must therefore be given a voice in the approval procedure, whereby the relevant approval authority is not bound by the recommendations of the nature conservation authority. However, the provisions of the specific species protection are compulsory and are not subject to consideration in this respect. Designations of protected areas must also be observed.

As part of the approval procedure, the entrepreneur shall also provide the competent authority with a Landscape Management Plan (LBP), which shall provide information on the location, nature, extent and timing of the intervention, as well as the intended avoidance and compensatory measures and, where required, the amount of the compensatory payment. In this case, the major part of the necessary compensation is to be regularly provided for renaturation or recultivation (see target definition BNatSchG). Compensatory measures on external surfaces are necessary if certain landscape or biotope structures cannot be restored or if specific measures are necessary for reasons of species protection.

In the case of the extraction of the so-called ‘free-to-mine’ (e.g. coal, salts, oil and natural gas) and privately-owned resources (e.g. stone, earths and industrial minerals) governed by the German Federal Mining Act (BBergG), the intervention regulation is processed as per the BNatSchG in accordance with the operating plan procedure under mining law, whereby the obligations as per the BNatSchG apply in full. Compensation for interventions can already take place within the scope of the obligation under mining law to rehabilitate the area (§ 55(1), No. 7 BBergG, § 1(5), P. 4, BNatSchG). If this is not possible, compensatory and/or substitution measures or subordinated compensatory payments pursuant to BNatSchG are necessary (see North Rhine-Westphalia (NRW) example below). In the case of procedures which are subject to Federal Mining Act, the legal instruments of the Ordinance are applied, such as (and in particular) regular monitoring based on the main operating plans, which must generally be submitted and re-approved every two years.

Documentation of compensatory measures for interventions in nature

Since the amendment of the BNatschG in 2010, German Federal States are obliged to create compensation directories for all interventions in nature. However, these take various forms and are not publicly available in all Federal States.

Overview of compensation directories in the Federal States
Federal State Publicly available Centralfor theFederal State Comprehensive information on the intervention area and the compensation type Potential compensatory payments recorded Weblink
Baden-Wuerttemberg Yes No Yes No Onlinearchive
Bavaria Yes Yes Yes No Data- Download
Berlin Yes Yes No No browserbased map service
Brandenburg No Yes No No Under construction
Bremen Yes Yes Yes No Data- Download browserbased map service
Hamburg Yes Yes No No browserbased map service
Hesse Yes Yes Yes No browserbased map service
Mecklenburg-Western-Pomerania Yes Yes Yes No Download; browserbased map service
Lower Saxony To some extend No To some extent (e.g. the County of Cuxhaven) No browserbased mapservice e.g. County of Cuxhaven
North Rhine-Westphalia Planned No Yes No -
Rheinland-Pfalz Yes Yes Yes No Map service
Saarland No No No No -
Saxony No Yes No No Description
Sachsen-Anhalt To some extent: The eco-accounts are publicly available but not the compensation directory. Yes No No Login
Schleswig-Holstein Yes No No No browserbased map service
Thuringia No Yes Yes No -

Source: own presentation, as of: May 2017

Example of the transparency of compensation directories in Baden-Wuerttemberg

The basis of the compensation directory in Baden-Wuerttemberg is formed by § 17(6) of the BNatSchG, the compensation directory regulation and the eco-account regulation of the state, which provide for the obligation to make documentation available for the public. The latter two regulations can be downloaded from the website of the Ministry of the Environment of Baden-Wuerttemberg. The Baden-Wuerttemberg compensation directory is divided into the ‘eco-account’ and the ‘intervention compensation’ sections.

An eco-account is an instrument for the perpetrators of interventions (polluters). It enables them to temporally and spatially decouple compensation measures from the mining area, making the measures more flexible to manage. Compensatory measures can be stockpiled via so-called ‘eco-points’, which are accumulated by means of the targeted ecological upgrading of external areas. The corresponding eco-points can be used for later interventions to compensate for the interventions either in whole or in part. Polluters such as natural resource companies and local authorities are involved here as producers, consumers and traders of eco-points.

A central overview of the total number of all interventions in Baden-Wuerttemberg, including their compensatory measures, is not available; however, the legal environmental protection eco-account measures and the compensatory measures already assigned to an intervention under nature conservation law can be accessed via the Internet sites of the responsible nature conservation sub-authorities at city and county levels ( http://www4.lubw.baden-wuerttemberg.de/servlet/is/225385/ or. http://www4.lubw.baden-wuerttemberg.de/servlet/is/225375/ where the following information on the nature conservation compensatory measures of the counties is available:

  • description of the approval authority and the compensatory measure (short description),
  • file number and date of the approval certificate,
  • type of project causing the intervention,
  • project developer,
  • location of the compensation area,
  • measures for the timely implementation of the compensatory measure and the fixed period of maintenance,
  • state of the implementation.

The following information on eco-account measures can also be accessed:

  • complex of measures,
  • status,
  • natural area,
  • location of the measure,
  • eco-points.

Compensatory measures on intervention areas and substitute areas are documented in the compensation directory of the state of Baden-Wuerttemberg. Measures taken since April 2011 have been listed.

Example of the assessment of compensatory payments in North-Rhine-Westphalia

In the case of an authorised intervention, compensatory money can be levied as an Ultima Ratio if negative impacts on nature are unavoidable, or if they cannot be compensated or replaced within a reasonable period. As per the BNatSchG, the compensatory payment is based on the average costs of the non-feasible compensation measures, including the necessary costs for their planning and maintenance, as well as the provision of the area, which encompasses personnel and other administrative costs. If these cannot be ascertained, the compensatory payment is based on the duration and severity of the intervention, taking into account the advantages accruing to the polluter (§ 15(6), P. 1 et seq., BNatSchG). The assessment of the amounts of compensatory payment is the exception rather than the rule in the approval of the activities of the natural resources extractive industry in North-Rhine-Westphalia. Nevertheless, there are cases in which, for example, the major part of the compensation takes place in recultivation, but a small computational, compensational deficit still must be implemented on an external area, or the assessment of the compensation through rehabilitation will not be appropriate. If the area in question or the required measure is unavailable, or can neither be implemented nor is expedient at a reasonable cost, a relevant compensatory payment is assessed. In North-Rhine-Westphalia, this assessment is made in accordance with the provisions of the State-level Nature Conservation Law (LNatSchG NRW) in consultation with the relevant higher authority for nature conservation (§ 33(1), LNatSchG NRW).

The beneficiary of the compensatory payment is the regionally-responsible, sub-authority for nature conservation, which must use the compensatory money for measures involving nature conservation and landscape management (§ 4a(4), LNatSchG NRW). If the compensatory payment is to be paid for an intervention in forested areas or to be used for the afforestation of land, the payment will be made available to the forestry administration (§ 31(4) LNatschG NRW).

Examples of the assessments of compensatory payments are the open-cast gravel mines in the open-cast mining zones in front of the lignite mining projects. In three of the open-cast mines, an ecologically-valuable rehabilitation was not indicated because open-cast lignite mining would use the area directly after the gravel or sand extraction operations.

In these cases, the local sub-authority for landscapes developed a simplified procedure by means of which an appropriate compensatory payment was assessed. A total of €265,767.90 in compensatory payments was assessed for the three projects mentioned above.

For another open-cast gravel mining project, a small-scale expansion was planned for which a compensatory payment was assessed, if the intended recultivation could not be implemented. The county sub-authority for nature conservation, however, would have to use the compensatory payment of €21,900 it received to implement another equivalent compensatory measure. (This list of examples is not exhaustive).

In the years between 2011 and 2015, a total of around €300,000 in compensatory payments were assessed for the North-Rhine Westphalia mining authorities. So far, there have been no compensatory payments for the lignite mining industry in North-Rhine Westphalia; intervention compensation is mainly carried out in the form of rehabilitation. The ratio of the many open-cast mining projects in NRW (especially lignite mining projects, some of which are on a very large scale) to the few small projects mentioned above shows that the assessment of compensatory payments plays a subordinate role in the procedures carried out under mining law.

Cooperation between stakeholders

Since each extraction of natural resources represents a significant intervention in nature and landscape, an environmentally-friendly extraction development and technology approach should be standard for companies in this sector. Timely renaturation and recultivation can contribute to the promotion of biological diversity; but operating extraction sites are also habitats for rare animals and plants. The cooperation between companies extracting natural resources, the persons working there and local conservationists has already proved its worth, because it enables the management of the extraction operations to be adapted to the local and specific biodiversity requirements. This usually succeeds if the company management and employees are continually involved in dialogue with specialist nature conservation institutions and persons. In the case of expansions or new extraction projects, an early dialogue between the stakeholders can also avoid conflicts before they arise. Information and training materials on the subject help to broaden the impact of initiatives like this, which are supported by strong memberships in the environmental and nature conservation associations, the mining, chemicals, energy and construction-agri-environment industrial trade unions, and economic associations at federal and state levels.


Provisions

In Germany, federal legislation stipulates that companies which extract natural resources must carry out recultivation measures. The companies are also obliged to create and maintain long-term accounting provisions (‘financing provisions’). These usually include measures which are still necessary after closure of the mine concerned, such as measures for the rehabilitation of the mine area and recultivation measures. Provisions are set aside for these financial obligations under accounting rules.

The amount of the provisions to be set aside is based on the anticipated expenses for various planned measures. Long-term tax provisions with a residual maturity of more than one year are also discounted, using a legally-defined interest rate and taking future cost increases into consideration. The expected dates of fulfilment are essentially dependent on the remaining economic useful life of the extraction sites in question. The obligations of some companies extend far beyond the year 2050.

Provisions for mining are shown on the liabilities side of the balance sheet in the annual financial statements of the extractive sector companies and this is why they are audited by professional auditors as balance sheet items. Provisions made must be in accordance with the relevant regulations; the tax authorities check any related fiscal issues.

Provisions made by companies which must publish their annual financial statements are shown transparently at http://www.bundesanzeiger.de The duty of disclosure applies to all limited companies pursuant to § 325 of the HGB, all commercial partnerships without a natural person as a personally-liable shareholder (e.g. GmbH & Co. KG) and other companies that exceed a certain size.


Implementation securities

Implementation securities are an instrument provided in the Federal Republic of Germany to implement the renaturation, safeguarding and rehabilitation measures to be carried out by extractive sector companies. If a company should fail or refuse to carry out the above measures, the authorities ensure that no additional costs will have to paid by the general public by means of so-called ‘substitute performances’.

Implementation securities are expressly provided for under the Federal Mining Act (BBergG) as an official instrument for natural resources extraction projects which are subject to the BBergG. Individual Federal States have introduced similar legislation in their excavation laws (or other subordinate excavation regulations) for the extraction of natural resources which is outside the legal scope of the BBergG. Implementation securities can also be established to ensure the implementation of compensatory and substitution measures for interventions in nature and landscape, pursuant to § 17(5) of the Federal Nature Conservation Act (BNatSchG).

Within the scope of its discretion pursuant to § 56(2) BBergG, the mining authority may make the granting of operating plan permits dependent on an implementation security, if this is necessary to guarantee (in particular) the implementation of measures for risk prevention and rehabilitation in the areas affected by the extraction of the natural resources. This applies to follow-up measures of mining activities such as water drainage, for example, but also to the dismantling of equipment, the removal of water-endangering substances and the securing of former extraction sites by backfilling them or blocking them off completely.

In principle, the mining authority may permit any suitable form of implementation security if it considers that such a security is necessary and if there are no restrictions arising from the relevant statutory provisions; such forms of implementation security include the deposit of cash and bonds, mortgages, special default insurances, operational provisions, bank or group guarantees and so-called strict letters of comfort.


Operating provisions, bank guarantees or insurance guarantees and, particularly in the case of large companies, corporate guarantees and letters of comfort are customary in the natural resources extractive sector. Cash and bonds are not usually accepted as securities, since the management of these is too complex for the authorities; implementation securities are therefore not payments from companies to state agencies.

The amount of the implementation security to be set is oriented on the estimated cost of a (possibly necessary) substitute performance. If a project is to be carried out in stages, the implementation security is set up in stages on the basis of the actual intervention and is approved on a pro rata basis after successful partial rehabilitation.