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Managing 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 environmental impacts. Compensatory actions, such as compensatory or substitution measures and com- pensatory payments are intended to compensate for interventions in nature and landscape and to restore their natural function.
Overall it is estimated that just over 1% of Germany’s entire area will be necessary to ensure the country’s natural resources in the medium and long term. On the last key date of 31 December 2019, according to the Federal Office of Statistics approx. 1,506 km², i.e. approx. 0.421% of the area of Germany is used as mining land. The equivalent in area for the volume of natural resources used in 2019 was just over 28 km². Taking the total area of Germany as a reference (357,582 km²), this requires a total area requirement of approx. 0.008% of its surface area in 2019.1 This corresponds to 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

The Federal Nature Conservation Act (BNatSchG) establishes the general principle that major interven- tions in nature and landscape are to be primarily avoided and minimised by the polluter (avoidance obligation). Unavoidable interventions are to be com- pensated by means of compensatory or substitution measures (hereinafter “compensatory measures”) or, if this is not possible, by a compensatory payment in money (§ 13 BNatSchG).The Federal Nature Conservation Act (BNatSchG) establishes the general principle that major interven- tions in nature and landscape are to be primarily avoided and minimised by the polluter (avoidance obligation). Unavoidable interventions are to be com- pensated by means of compensatory or substitution measures (hereinafter “compensatory measures”) or, if this is not possible, by a compensatory payment in money (§ 13 BNatSchG).It is not possible to deviate from this general principle and the ensuing legal consequences (first the avoid- ance, then compensatory measures and, as a last resort, a compensatory payment). In the case of mining measures, the avoidance rule primarily targets a variant that is as environmentally-friendly as possi- ble, 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, rena- turation, near-natural design, rehabilitation or recul- tivation (§ 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 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 par- ticularly-protected species of animals and plants (special species protection legislation) and on the European protected area network NATURA 2000 is one of the aspects that 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 instru- mental design of the intervention regulation may not contradict it. In order to make the regulation more applicable, some Federal States have made supple- mentary regulations, whereby the practice differs from Federal State to Federal State. For example, the concrete assessment of the amount and the use of compensatory payments differ from Federal State to Federal State. As different biotope type lists are used at Federal State level, the Federal Government pro- duces conversion keys that allow the respective biotope types to be counted.2
The Federal Compensation Ordinance (BKompV) provides specific details of the rules of intervention intended under nature conservation law for projects in the area for which the Federal Administration is responsible. In particular, it covers public infrastruc- ture projects (e.g. power lines and pipelines, offshore wind farms, waterway projects and, in the future, Federal autobahns). The objective of BKompV is to standardise the rules of intervention under nature conservation law across all Federal States and make them both more transparent and more effective.Opinions diverge as to whether the Federal States are allowed to make rules that differ from BKompV (Art. 72(3) sentence 3 GG).3

Approval practices in the extraction of natural resources

If a company plans to intervene in nature and land- scape by extracting natural resources, the rules of intervention under nature conservation law are exam- ined 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 privately-owned natural resources) or the Federal State authorities responsible for the execution of the State-based excavation laws, the building and water resources management laws and the Federal Immis- sion Control Act (in the case of so-called landowners’ natural resources). This procedure corresponds to the “piggyback procedure”. The rules of intervention are always examined within the framework of the notification and approval procedure under the specific legislation, without separate administration proceed- ings. The nature conservation authorities must be involved and they will give their opinion as nature conservation experts. The responsible approval authority then grants the authorisation taking account of the opinion in “consultation” with the responsible nature conservation authorities (§ 17 (1) BNatSchG). The responsible approval authority, which makes the decision on the legal consequences of the intervention, is not bound by the recommendation of the nature conservation authorities. It is allowed to differ from these on objective grounds. However, it is com- pulsory to comply with the provisions of the specific species protection independently of the rules of intervention 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 pro- vide 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) sentence 4 BNatSchG). Compensatory measures on external sur- faces are necessary, for example, if certain landscape or biotope structures cannot be restored in the same way, if the time that has elapsed between the damage and renaturation is too long 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 natural resources (e. g. stone, earths and industrial minerals) governed by the German Federal Mining Act (BBergG), the intervention regula- tion 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) sentence 4 BNatSchG). If this is not possible, compensatory and/or substitution measures or sub- ordinated 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 gen- erally 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 compen- sation 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 visible
 

Central for the federal state
 

Comprehensive information on the intervention area and type of compensation
 

Weblink

Information on Replacement Payments
 

Baden-Württemberg

Yes

no

Yes

https://www.lubw.baden-wuerttemberg.de/natur-und-landschaft/kompensationsverzeichnis
 

A list of compensation payments can be requested from the Nature Conservation Fund Foundation.
 

Bavaria

Yes

Yes

Yes

https://www.lfu.bayern.de/natur/oefka_oeko/index.htm
 

Lists of replacement payments can be requested at county government level.
 

Berlin

Yes

Yes

no

http://fbinter.stadt-berlin.de/fb/index.jsp

Lists of replacement payments can be requested at the county level.

Brandenburg

no

Yes

no

Under construction

A list of replacement payments can be requested from the Senator for Climate Protection, Environment, Mobility, Urban Development and Housing.
 

Bremen

Yes

Yes

Yes

https://www.bauumwelt.bremen.de/umwelt/natur/gis_dienste___geodaten-48536

A list of replacement payments can be requested from the Senator for Climate Protection, Environment, Mobility, Urban Development and Housing.
 

Hamburg

Yes

Yes

Yes

https://geoportal-hamburg.de/geoportal/geo-online
 

The total amount of the compensation payments can be viewed publicly via the annual balance sheet of the special fund for nature conservation.

Hessen

Yes
 

Yes
 

Yes
 

https://www.kompensationsflaechen-mv.de/wiki/index.php/Homepage

https://www.kompensationsflaechen-mv.de/wiki/index.php/Homepage

Replacement payments are not publicly visible.

Mecklenburg-Western Pomerania
   

Yes

Yes
 

Yes
 

https://www.kompensationsflaechen-mv.de/wiki/index.php/Homepage

https://www.kompensationsflaechen-mv.de/wiki/index.php/Homepage

Replacement payments are not publicly visible.
 

Lower Saxony
 

Partially

no

Partly (see example district of Cuxhaven)

https://cuxland-gis.landkreis-cuxhaven.de/internet/kompensationsflaechen
 

Replacement payments are not publicly visible.

Nordrhein-Westfalen

Planned
 

no

Yes

e.g. B. https://www.duesseldorf.de/stadtgruen/landschafts-und-naturschutz/eingriffsregel/ersatzgeld.html https://cuxland-gis.landkreis-cuxhaven.de/internet/kompensationsflaechen
 

The list of replacement money is published on the Internet. Information (also on the use of the replacement payments) can be found on the website of the responsible districts and urban districts.
 

Rhineland-Palatinate
 

Yes
 

Yes
 

Yes
 

http://www.naturschutz.rlp.de/?q=kartendienst
 

A list of compensation payments can be requested from the Nature and Environment Foundation.
 

Saarland

no

no

no

-

Eco-account measures can be viewed via the Saarland Geoportal (www.geoportal.saarland.de).
 

Saxony

no

Yes

no

https://www.umwelt.sachsen.de/umwelt/natur/15205

Lists of replacement payments can be requested at county government level.
 

Sachsen-Anhalt

Partly (eco accounts: yes, compensation register: no)
 

Yes
 

no
 

http://ekis.geolock.de/
 

Replacement payments are not publicly visible.
 

Schleswig-Holstein

Yes

no
 

no
 

http://www.lksh.de/forst/oekokonto/
 

A list of replacement payments can be requested from the Ministry for Energy Transition, Agriculture, Environment, Nature and Digitization.
 

Thuringia

no

Yes

Yes

Compensation payments are to be made to the Thuringia Nature Conservation Foundation (SNT). The corresponding overview lists are not publicly accessible. So far there have been no compensation payments from mining projects.

Source: own presentation, as of: September 2021

Example of the transparency of compensation directories in Baden-Wuerttemberg

The basis for the compensation directory in Baden-Wuerttemberg is formed by § 17 (6) of theBNatSchG and § 18 of NatSchG BW, the compensation directory regulation (KompVzVO) and the eco-account regulation (ÖKVO) 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 Baden-Wuerttemberg State Institute for the Environment. The Baden-Wuerttem- berg 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 measures 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 enhancement of external areas through nature conservation. The cor- responding eco-points can be used for later interven- tions 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 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 Internet sites 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) 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 Federal State of Baden-Wuerttem- berg. Measures taken since April 2011 have been listed. At present work is proceeding with updating KompVzVO. The aim is to include in the compensa- tion directory in future compensatory measures under planning law, species protection measures, coherence safeguarding measures, and entries on summation effects where the negative effects on Natura 2000 areas are significant, etc. (cf. § 18 (3) NatSchG BW). It is intended that this will provide greater transparency and make it easier to verify these measures.

Example of the assessment of compensatory payments in North-Rhine-Westphalia 4

According to § 15 (6) BNatSchG, in the case of an authorised intervention the polluter can make a pay- ment as an Ultima Ratio if negative impacts on nature are unavoidable, or if they cannot be compensated or replaced within a reasonable period. The compensa- tory payment is based on the average costs of the non-feasible compensation measures, including the necessary average costs for their planning and main- tenance, as well as the provision of the area, which encompasses personnel and other administrative costs. If these cannot be ascertained, the compensa- tory payment is based on the duration and severity of the intervention, taking into account the advantages accruing to the polluter (§ 15 (6) sentence 1 ff. BNatSchG).
The assessment of the amounts of compensatory pay- ment is the exception rather than the rule in the appro- val 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 recultivation, but a small computational, compensation 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 nature conservation authorities of the same administrative level (§ 33 (1), LNatSchG NRW).
The beneficiary of the compensatory payment is the district or urban district in which the intervention is carried out; the compensatory money must be used for measures involving nature conservation and landscape management (§ 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 and ear- marked for that purpose (§ 31 (4) LNatSchG NRW).
Examples of the assessments of compensatory pay- ments are the opencast gravel mines in the opencast mining zones in front of the lignite mining projects. In three of the opencast mines, rehabilitation that is valuable in nature conservation terms was not indica- ted because opencast lignite mining would use the area directly after the gravel or sand extraction operations. In these cases, the local sub-authority for nature conservation developed a simplified procedure by means of which an appropriate com- pensatory payment could be assessed. A total of EUR265,767.90 in compensatory payments was assessed for the three projects mentioned above.
For another opencast gravel mining project, a small- scale expansion was planned for which a compensa- tory payment was assessed, if the intended recultiva- tion could not be implemented. The county sub-authority for nature conservation, however, would have to use the compensatory payment of EUR21,900 it received to implement another equivalent compensatory measure.
In the period between 2011 and 2015, only a total of around EUR300,000 in compensatory payments were assessed for the North-Rhine Westphalia mining authorities. The significance of compensatory pay- ments in the procedures carried out under mining law has fallen considerably between 2015 and 2019. During this period the total amount was less than EUR100,000.
So far, there have been no compensatory payments for the opencast lignite mining industry in North- Rhine Westphalia; intervention compensation is mainly carried out in the form of rehabilitation. The ratio of the many opencast mining projects in NRW (especially lignite mining projects, some of which are on a very large scale) to the few small projects menti- oned above shows that the assessment of compensa- tory payments plays a subordinate role in the proce- dures 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 extrac- tive 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 conserva- tion 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 sub- ject 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 Government and Federal State levels.

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 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 requisite amount calculated according to rea- sonable and prudent business judgement to meet financial obligations. When assessing provisions, future cost increases must be taken 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. Long-term provisions with a residual maturity of more than one year are discounted according to the average market interest rate appropriate for the residual maturity and calculated by the German Bundesbank in accordance with a legislative decree and announced each month.
Provisions are shown on the liabilities side of the balance sheet in the annual financial statements of the extractive sector companies. They are examined by auditors as part of the audit review. The appropri- ateness of provisions is audited by the tax authorities with regard to tax issues.
Provisions made by companies which must publish their annual financial statements are shown transpar- ently at http://www.bundesanzeiger.de. The duty of disclosure pursuant to § 325 HGB always applies to all limited companies and all commercial partnerships without a natural person as a personally liable shareholder (e.g. GmbH & Co. KG).

Implementation securities

Implementation securities are an instrument provided in Germany to implement the renaturation, safeguard- ing 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 authori- ties 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. Imple- mentation 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 implementa- tion security, if this is necessary to guarantee (in par- ticular) the implementation of measures for risk pre- vention 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 suit- able form of implementation security if it considers 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 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.
The special purpose vehicles planned for the Lausitz lignite coalfield are a special case. These were set up in the course of the 2018/2019 precautionary agree- ments between the opencast mine operator LEAG and the Federal States of Brandenburg and Saxony to ensure compliance with the obligations to rehabilitate and provide any aftercare for the mining areas. The company provides these special purpose vehicles with a special fund earmarked for the purpose. A basic amount is planned for this purpose and it is intended that this will be increased every year, depending on the company’s current profits. If the company be- comes insolvent or if it relocates abroad, the special fund is to be pledged to the respective Federal States. Compensation payments connected with the phasing out of coal (see chapter 8) will be paid directly into the special purpose vehicles. The precautionary agree- ment in the central German coalfield (Saxony-Anhalt) is currently being renegotiated because of changed underlying conditions (exit from lignite mining).

1 Federal Institute for Geosciences and Natural Resources (BGR) (2020): Germany – Natural Resources Situation 2019. (Deutschland – Rohstoffsituation 2019) URL:  https://www.bgr.bund.de/DE/Themen/Min_rohstoffe/Downloads/rohsit-2019.pdf;jsessionid=DCB2CC38DD5BC60 (Accessed on 1 December 2021). 

2  The conversion keys are published here: Federal Agency for Nature Conservation (2021): URL: https://www.bfn.de/themen/planung/eingriffe/eingriffsregelung.html (Accessed on 25 November 2021).

3 Currently Baden-Wuerttemberg (§ 15 (5) sentence 3 NatSchG BW) and Bavaria (Art. 8 (3) sentence 2 BayNatSchG) made use of this

4 The procedure described applies on a nationwide basis.

Dealing with nature

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