Dealing with human intervention in nature and landscape

Rules of intervention under nature conservation law

Every mining activity is associated with interventions in nature and landscape and can result in serious en- vironmental impacts. At the same time, however, a contribution can be made to the conservation of bio- diversity on former mine sites and on certain areas of operating mine sites. Compensatory or substitution measures and payments are intended to compensate for interventions in nature and landscape and to restore their natural function.
Overall, the land required for securing the supply of raw materials in the medium and long term is esti- mated at just over 1% of the German territory. Ac- cording to the Federal Statistical Office, as of the last reporting date, December 31, 2017, approx. 1,519 km², i.e.approx. 0.425% of the land area of Ger- many was used for the extraction of natural resources. The land equivalent for the amount of natural resources used in 2018 was just over 30 km². In relation to the total area of Germany (357,582 km²), this results in a land requirement of approx. 0.008% of the national area in 2018 (Federal Institute for Geosciences and Natural Resources 2018). This corresponds to a daily area utilisation of an average of 8ha. 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 dif- ferences and concentrations.

Legal framework

According to the Federal Nature Conservation Act (BNatSchG) the general principle regarding interven- tions is that major interventions in nature and land- scape are to be primarily avoided and minimised by the polluter (avoidance obligation). Unavoidable in- terventions are to be compensated by means of com- pensatory or substitution measures (hereinafter “compensatory measures”) or, if this is not possible, by a compensatory payment (§ 13 BNatSchG). This general principle and its cascade of legal consequenc- es (first avoidance, then compensatory measures, and as a last resort, compensation payment) cannot be deviated from. In the case of mining measures, the avoidance rule primarily targets a variant that is as environmentally-friendly as possible, because, due to the type of natural resource and technical considera- tions there are no alternative extraction sites or, due to the economic priority of natural resources extrac- tion, extraction cannot be dispensed with. Unavoida- ble interventions in nature and landscape must there- fore be offset or mitigated, particularly through the promotion of natural succession, renaturation, near- natural design, rehabilitation or recultivation (§ 1(5),p. 4 BNatSchG (Federal Nature Conservation Act).
Compensatory measures must be maintained and legally secured during the required period of time. The period of maintenance is determined by the ap- proval 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 par- ticularly-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, i.e. that the laws and norms of the Federal States on the instru- mental design of the intervention regulation may not contradict it. In order to make the regulation more applicable, some states have made supplementary regulations, whereby the practice differs from federal state to federal state. For example, the concrete as- sessment of the amount and the use of compensatory payments differs from federal state to federal state.
The Federal Compensation Ordinance (BKompV) specifies the impact regulation under nature conser- vation law for projects within the jurisdiction of the federal administration. It covers, in particular, projects in the field of public infrastructure (e. g. power lines, offshore wind farms and waterway projects, in future also federal roads). The BKompV aims to standardise the nature conservation impact regulation across the Federal States and to make it more transparent and effective. The Federal States may make regulations that deviate from the BKompV (Art. 72(3) sentence 3 GG).30

Approval practices in the extraction of natural resources

If a company plans to intervene in nature and land- scape by extracting raw materials, the nature conser- vation legislation on impact 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 Federal States (in the case of free-to-mine and pri- vately-owned natural resources) or the state authori- ties 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 re- sources). This procedure corresponds to the so-called “piggy-back” procedure: The impact regulation is generally examined as part of notification or approval procedures under sectoral law, i. e. without an independent administrative procedure. The nature conser- vation authority shall be involved and shall issue a nature conservation statement. Then, the competent approval authority issues the authorisation taking into account the opinion in “conformity” with the compe- tent nature conservation authority (§ 17(1) BNatSchG). The respective approval authority, which makes the decision on the legal consequences of the interven- tion, is not bound by the recommendations issued by the nature conservation authority, and may deviate from these recommendation for factual reasons.
However, the provisions of special species protection must be complied with irrespective of the impact reg- ulation. 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 compen- sation is to be regularly provided for renaturation or recultivation (see target definition in § 1(5) p. 4 BNatSchG). Compensation measures on external sites are necessary, for example, if certain landscape or bio- tope structures cannot be completely restored, if the time interval between impairment and renaturation is too long, or if special measures are necessary to pro- tect certain species.

In the case of the extraction of the so-called “free-to- mine” (e. g. coal, salts, oil and natural gas) and private- ly-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 obli- gations as per the BNatSchG apply in full. Compensa- tion 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), sentence 4 BNatSchG). If this is not possible, com- pensatory and/or substitution measures or subordi- nated compensatory payments pursuant to BNatSchG are necessary (see North Rhine-Westphalia (NRW) example below). In the case of procedures which are subject to the Federal Mining Act (BBergG), the legal instruments of the Federal Mining Act 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, Ger- man 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 StatePublicly availableCentralfor theFederal StateComprehensive information on the intervention area and the compensation typePotential compensatory payments recordedWeblink
Baden-WuerttembergYesNoYeshttps://www.lubw.baden-wuerttemberg.de/natur-und-landschaft/kompensationsverzeichnis
BavariaYesYesYeshttps://www.lfu.bayern.de/natur/oefka_oeko/index.htmData-
BerlinYesYesNohttp://fbinter.stadt-berlin.de/fb/index.jspbrowserbased
BrandenburgNoYesYesNoUnder construction
BremenYesYesYeshttps://www.bauumwelt.bremen.de/umwelt/natur/gis_dienste___geodaten-48536Liste der Ersatzzahlungen kann bei der Senatorin für Klimaschutz, Umwelt, Mobilität, Stadtentwicklung und Wohnungsbau angefordert werden.
HamburgyesyesNohttps://geoportal-hamburg.de/geoportal/geo-onlinebrowserbased
HesseYesYesYeshttp://natureg.hessen.de/mapapps/resources/apps/natureg/index.html?lang=debrowserbased
Mecklenburg-Western-Pomerania YesYesYeshttps://www.kompensationsflaechen-mv.de/wiki/index.php/Hauptseite

https://www.kompensationsflaechen-mv.de/wiki/index.php/Hauptseite
browserbased
Lower SaxonyTeilweiseNoTeilweise (s. Bsp. Landkreis Cuxhaven) https://cuxland-gis.landkreis-cuxhaven.de/internet/kompensationsflaechenbrowserbased mapservice e.g
North Rhine-Westphalia GeplantNoYes--
Rheinland-Pfalz YesYesYeshttp://www.naturschutz.rlp.de/?q=kartendienstListe von Ersatzgeldzahlungen kann bei der Stiftung Natur und Umwelt angefordert werden.
SaarlandNoNoNo--
SachsenNoYesNo https://www.umwelt.sachsen.de/umwelt/natur/15205Listen der Ersatzzahlungen können auf Ebene der Kreisverwaltungsbehörden angefordert werden.
Sachsen-Anhalt Teilweise (Ökokonten: Ja, Kompensationsverzeichnis: Nein) YesNohttp://ekis.geolock.de/Ersatzzahlungen sind nicht öffentlich einsehbar.
Schleswig-Holstein YesNoNohttp://www.lksh.de/forst/oekokonto/browserbased
ThuringiaNoYesYes-

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 down- loaded from the website of the Environment Agency of Baden-Wuerttemberg. The Baden-Wuerttemberg compensation directory is divided into “eco-account” and the “intervention compensation” sections.
An eco-account is an instrument for the perpetrators of interventions (polluters). It enables them to tem- porally and spatially decouple compensation meas- ures from the mining area, making the measures more flexible to manage. Compensatory measures can be stockpiled via so-called “eco-points”, which are accu- mulated by means of the targeted ecological upgrad- ing of external areas. The corresponding eco-points can be used to compensate for later interventions either in whole or in part. Polluters such as extractive companies and local authorities are involved here as producers, consumers and traders of eco-points.
A central overview of the total number of all interven- tions in Baden-Wuerttemberg, including their com- pensatory 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 websites of the responsible nature conservation sub-authorities at city and county levels (https://www.lubw.baden-wuerttemberg.de/natur-und-landschaft/oeffentlich-einsehbares-verzeichnis-eingriffskompensation). The following infor- mation on the nature conservation compensatory measures of the counties can be viewed there:
  • 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 Federal State of Baden-Wuerttemberg. Measures taken since April 2011 have been listed.

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

According to § 15(6) BNatSchG, the polluter must make a compensation payment as a last resort if a permitted encroachment on nature cannot be avoided, compensated or replaced within a reasonable period of time. The compensatory payment is based on the average costs of the non-feasible compensation measures, including the average costs incurred for their planning and maintenance, as well as the provi- sion of areas including personnel and other adminis- trative costs. If these average costs cannot be ascer- tained, the compensatory payment is based on the duration and severity of the intervention, taking into account the advantages resulting from the interven- tion to the polluter (§ 15(6), sentence 1 et seq., BNatSchG).
The setting of compensatory payments is the exception rather than the rule in the approval of the activities of the extractive industry in North-Rhine-Westphalia. Nevertheless, there are cases in which, for example, the major part of the compensation takes place in reculti- vation, but a small computational, compensational deficit still must be implemented on an external area, or the assessment of the compensation through reha- bilitation 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 accord- ance with the provisions of the State-level Nature Con- servation Law (LNatSchG NRW) in consultation with the relevant nature conservation authority at the same administrative level (§ 33(1) LNatSchG NRW).

The recipient of the compensatory payment is the district or the city in which the intervention is carried out; the compensatory payment is to be used for nature conservation and landscape management measures (Article 31 (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 for a specific purpose (§ 31(4) LNatschG NRW).

Examples of the assessments of compensatory pay- ments are the open-cast gravel mines in the open-cast mining zones in the run-up to the lignite mining projects. In three of the open-cast mines, an ecologically-valuable rehabilitation under nature conservation law was not indicated because open-cast lignite mining would use the area directly after the gravel or sand extraction operations. For these cases, the local sub- authority for landscapes developed a simplified proce- dure designed to assess an appropriate amount to be paid as compensatory payment. A total of €265,767.90 in compensatory payments was assessed for the three projects mentioned above.

For a further open-cast gravel pit, it was determined that a compensatory payment has to be made as part of a small-scale expansion plan, if the intended recul- tivation cannot be implemented. However, the receiver of the payment, the sub-authority for nature conser- vation, would have to use the amount of €21,900 to implement another equivalent compensatory measure.
Between 2011 and 2015, not more than approx. €300,000 in compensatory payments were assessed by the North-Rhine Westphalia mining authorities. Between 2015 to 2019, the importance of compensa- tion payments in procedures under mining law has decreased considerably to a total amount of less than €100,000.
So far, there have been no compensatory payments for the lignite mining industry in North-Rhine West- phalia; 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 completely 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 must 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. Cooperation between the extractive companies, the employees there and nature conservationists who are familiar with the area has proven to be useful. This means that operational management can be adapted to 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 initia- tives like this, which are supported by environmental and nature conservation associations with strong membership, the mining, chemicals, energy and construction-agri-environment industrial trade unions, and economic associations at federal and state level.

Provisions

In Germany, federal legislation stipulates that compa- nies 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 in- clude measures which are still necessary after closure of the mine concerned, such as measures for the re- habilitation of the mine area and recultivation meas- ures. Provisions are set aside for these financial obli- gations under accounting rules.

The amount of provisions to be created is based on the amount necessary to meet the financial obliga- tions according to reasonable commercial judgement. Future cost increases must be taken into account when making this assessment. The expected dates of fulfilment are essentially dependent on the remaining economic useful life of the extraction sites in ques- tion. The obligations of some companies extend far beyond the year 2050. Long-term provisions with a residual term of more than one year are discounted at an interest rate determined by the Deutsche Bundesbank under a statutory order and published monthly.

Provisions are shown on the liabilities side of the bal- ance sheet in the annual financial statements of the extractive sector companies. They are audited by auditors as part of the audit of the financial statements. In matters of tax law, the adequacy of provisions is reviewed by the tax authorities.
Provisions made by companies which must publish their annual financial statements are shown transpar- ently at http://www.bundesanzeiger.de. The duty of disclosure according to § 325 HGB applies in principle to all corporations and all commercial partnerships without a natural person as personally liable share- holder (e. g. companies in the legal form of a GmbH & Co. KG).

Implementation securities

Implementation securities are an instrument provided in Germany to implement the renaturation, safe- guarding 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 ex- cavation laws (or other subordinate excavation regulations) for the extraction of natural resources which is outside the legal scope of the BBergG. Implemen- tation 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 Conserva- tion Act (BNatSchG).

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 ex- cavation laws (or other subordinate excavation regu- lations) for the extraction of natural resources which is outside the legal scope of the BBergG. Implemen- tation 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 Conserva- tion 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 imple- mentation 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 sub- stances and the securing of former extraction sites by backfilling them or blocking them off completely.
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 imple- mentation 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 sub- stances 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 consid- ers that such a security is necessary and if there are no restrictions arising from the relevant statutory provi- sions. 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 com- panies, corporate guarantees and letters of comfort are customary in the extractive sector. Cash and bonds are not usually accepted as securities, since the management of these is too complex for the authori- ties. Implementation securities are therefore not pay- ments from companies to state agencies.
The amount of the implementation security to be set is oriented on the estimated cost of a (possibly neces- sary) substitute performance. If a project is to be car- ried 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.
A special case is the special-purpose companies planned for the Lausitz lignite mining area, which were set up in the course of the precautionary agree- ments 2018/2019 to secure the rehabilitation of the mining sites and possible aftercare obligations between the opencast mine operator LEAG and the Federal States of Brandenburg and Saxony. The mine operator provides these special purpose entities with earmarked special assets. A base amount will be used for this, which is to be increased on an annual basis depending on the current profits of the company. In the event of corporate insolvency or relocation of the company abroad, the special assets are to be pledged to the respective Federal States. The compensatory pay- ments made as part of the coal phase-out (see Chap- ter 3) are paid directly to the special purpose entities.