German Commodities Sector /

How are resource extraction projects approved?

The regulation procedures for the approval and supervision of mining projects are not the same for all natural resources in Germany. They vary depending on the type of natural resource and the laws and regulation they are subject to at the Federal and the Federal State level.

Steps for the approval of resource extraction projects of free-to-mine and privately-owned natural resources

Free-to-mine natural resources

Privately-owned natural resources

Steps for the approval of mining projects of landowners natural resources

Proof of ownership

of the land e.g. land leasing contract must be available.

Approval procedures

 Approval procedures as per the Federal Immission Control Act, the Federal State’s excavation laws as well as the building, nature conservation or water resources legislation (in wet extraction) are required for extracting these natural resources. The resources in question are mostly “bulk materials” from the quarried natural resources sector.

Mining licences

Mining rights are the basis for the exploration and extraction of free-to-mine natural resources. Applications are made in the form of a permit, a license or proprietary mining rights.

There are three different types of mining rights:

Permit

The permit is a mining right which grants the right to carry out explorations for free-to-mine natural resources on a specific, permitted mine site. The permit is time-limited to a maximum of five years and may be extended for a further three years (see § 16 (4) BBergG). A legal entitlement to the granting of a permit exists, unless there are grounds for refusal. The permit may be refused if, for example, no work pro- gramme exists or the fixed time period is not taken into account in the planning. The grounds for refusal are fully itemised in § 11 BBergG. If explorations have not started within one year, for reasons for which the permit holder is responsible, the permit will be revoked (§ 18 BBergG).

License

The licence is a mining right which grants the right to carry out exploration operations for free-to-mine natural resources on a specific, licensed mine site. The licence defines ‘a reasonable period of time for the implementation of extraction in individual cases’. Fifty years may only be exceeded if this is necessary in view of the investment normally required for the extraction. A time extension is possible (see § 16 (5) BBergG). A legal entitlement to the granting of a license exists, unless there are grounds for refusal.

The licence may be refused if, for example, it cannot be proven that the resources can be extracted, due to their location and nature (see § 12 BBergG). If extraction work has not started within three years, as a rule, the licence must be revoked (§ 18 BBergG). The grounds for refusal are fully itemised in § 12 BBergG.

Proprietary mining rights

Proprietary mining rights are a special mining rights for the extraction of free-to-mine natural resources. They comprise the rights and obligations associated with a license, but also enable mortgaging of and the registration of easements for the mine site. The details of the proprietary mining rights are entered in the land register with the name and address of the applicant and details of the mine site. Proprietary mining rights define “a reasonable period of time for the implementation of extraction in individual cases”. Fifty years may only be exceeded if this is necessary in view of the investment normally required for the extraction. A time extension is possible (see § 16(5) BBergG). If regular extraction of natural resources is interrupted for more than 10 years, the proprietary mining rights must be revoked (see § 18 (4) BBergG). To apply for proprietary mining rights, the applicant must already be in possession of a licence for the mine site in question. Proprietary mining rights may also be refused if, for example, evidence cannot be furnished that an economic extraction of the natural resources is to be expected (see § 13 BBergG).

In compliance with § 75 et seq. of the BBergG, mining authorisations and mining maps are created to document the mining rights. Information about licences, permits, proprietary mining rights and on the mine sites in question is available in these documents.

Special case: Mining rights under the old laws

The various forms of mining rights described above (permit, licence and proprietary mining rights) are also supplemented by older legal mining rights, which are described as “rights under the old laws” or “old rights”. These are mining rights that were granted before the current Federal Mining Act of 1982 came into force, e.g. the lignite opencast mines in the Rhenish mining region. Under current law, these rights are still valid (see § 149 (1), sentence 1 BBergG) if they were shown to the relevant mining authority during a phase-out period of three years after the Mining Law of 1982 came into force and if they were confirmed by mining inspection authorities. In contrast to mining rights under the new BBergG, rights under the old laws are not time-limited and neither extraction nor mine site royalties have to be paid. In practice, these old rights mainly apply to hard coal and lignite. An operating plan must be approved before these natural resources can be extracted under the old laws.

Special case: special requirements on the territory of the former GDR

The mining rights system of the GDR only applied to the (communist) state-owned and other mineral resources. The state-owned natural resources mainly comprised free-to-mine and privately-owned resources and were the property of the communist state. Other natural resources primarily comprised landowners’ natural resources and were allocated to the land ownership category. The Bestowal Regulation of 15 August 1990 created the foundation for the conversion of mining rights for state-owned natural resources into free-to-mine resources, which were subsequently recognised by the legal system of the reunited Germany. The transferred mining rights are deemed to be proprietary mining rights. Old rights based on § 153 BBergG with the status of a licence (pursuant to § 8 BBergG) are excluded from this. Mining licenses that are deemed to be proprietary mining rights are, like the mining rights under old law, not time-restricted and are also exempt from mine site and extraction royalties (see § 149 and § 151 BBergG). In contrast to the Federal States of the former West Germany, the validity of the old rights (see section on mining rights under the old laws) in the Federal States on the territory of the former GDR does not only extend until 1980, but, due to the adaptation of the laws and regulations after reunification, also applies to deposits explored up to and including 1990. These rights also apply to both free-to-mine and privately-owned natural resources.

 

Overview of old mining laws, mining laws in the GDR and modern mining laws

 

You can find an overview of all mining rights at:

view data

Approval of an operating plan

Exploration, extraction and processing operations that are covered by the BBergG are usually only set up, managed and discontinued if they are based on operating plans. These plans are drawn up by the prospective mine operator and approved by the responsible authority. The approval of such operating plans is tied to conditions (conditions of approval). These conditions address operational and work safety, the protection of the surface area, the prevention of harmful impacts, the protection of the deposits and the preventive measures regarding the proper restoration of the areas affected by the extraction of the natural resources. The BBergG defines various types of operating plans, such as general operating plans, main operating plans, final operating plans and special operating plans. For further information see section “Managing human intervention in nature and landscape”.

Operating plans basically include the following:

•    A presentation of the scope of the project

•    A presentation of the technical implementation of the project

•    The duration of the project

•    Evidence that the conditions of approval have been met

The operation of a mine is dynamic in nature due to the mine’s continuous adaptation to the deposit’s characteristics, since, for example, as the mining of lignite or salt progresses, the specific characteristics of the mine site change and extraction is extended to those areas of the deposit that have not yet been mined (however, this does not apply, for example, to deep geothermal energy). This mode of operation also entails specific risks for employees and third parties. Due to these conditions, continuous monitoring of the operation is necessary, at specified intervals. The main operating plan should generally not exceed a period of two years and should be approved by the responsible authority. Constant coordination between the company and the responsible authority is required to ensure both intensive public control of the mining operations and planning flexibility. 

In the context of the phasing out electricity generation using lignite (see impacts of the energy transition and structural change) the BBergG was amended to extend the normal period for main operating plans for lignite opencast mining, cf. § 52 (1) BBergG.1 This extends the time frame for making changes to plans that have become necessary because of the phasing out of coal and the planning certainty of opencast lignite mining, the end of which is foreseeable because of the early phasing out of lignite. The arrangement also applies to other mining sectors if adequate monitoring is possible, including with a longer inspection period. The competent court for legal action before an administrative court in the first instance was moved to the Higher Administrative Courts (§ 48 (1) No. 14 of the Rules of the Administrative Courts [VwGO]). The purpose of this measure was to speed up and streamline the approval process for general operating plans and all additional permissions associ- ated with this for opencast lignite mining affected by the phasing-out of coal.

In principle, the conditions under which natural resources are extracted in Germany are not directly negotiated between the extractive companies and the government agencies. The conditions for the exploration and extraction of natural resources are generally validated by law and implemented by the respective competent authorities.

In addition to the approval procedures, contractual agreements between companies and government agencies are occasionally concluded. However, as explained above, such cases do not represent the rule but the exception. Where private-law agreements are relevant for extractive companies in Germany, they are listed and explained in disclosed payment flows and quality assurance.

Water rights-permits

If a mining project involves the use of water, a water rights permit is required in addition to approvals under mining law (see § 8 in conjunction with § 9 WHG (Water Resources Act)2). Water usage of this kind includes but is not limited to:

  1. Abstracting and withdrawing water from surface waters,
  2. Damming up and releasing surface waters,
  3. Removal of solids from surface waters, where this has an effect on water characteristics,
  4. The introduction and discharge of substances into water,
  5. The removal, extraction, channelling and abstraction of groundwater.
Unless one of the aforementioned activities applies, the following activities shall also be considered to be usage:
  1. Damming up, releasing and re-routing of groundwater through plants that are intended or suitable for this purpose,
  2. Measures that have the potential to bring about disadvantageous changes to the quality of the water, permanently or to a significant extent,
  3. The application of hydraulic pressure to fracture rock to prospect for or extract natural gas, crude oil or geothermal energy, including the associated deep boreholes,
  4. The underground storage of water from deposits that has accumulated during activities set out in number 3 or other activities to prospect for or extract natural gas or crude oil.
If the operating plan under mining law includes the use of water, the mining authority shall decide on granting the permit. The same shall apply to revoking a permit. Decisions made by the mining authority must be agreed with the responsible water authority.

Water-rights permits must be entered in a Water Register (§ 87 WHG), which can be accessed by the public. The rules for the procedure here are governed by Federal State Law.

 

Environmental impact assessment

As with other projects with environmental impacts, environmental impact assessments are also required for projects under mining law. Under the conditions laid down in the Ordinance on the Environmental Impact Assessment of Mining Projects (UVP-V Berg- bau), an environmental impact assessment (EIA) or a preliminary examination of the individual mining law case is necessary. As a rule, the EIA obligation for mining projects depends on the size of the project, measured by extracted volumes or the required excavation area. An example of this can be seen in the following table. In addition, all mining projects are subject to EIAs if they appear on the list of projects subject to EIAs in accordance with Annex 1 of the Law on Environmental Impact Assessments (UVPG), which was issued on the basis of § 57c BBergG.

If an EIA is necessary, a planning approval procedure must be carried out in accordance with mining law. The general public are involved in this procedure, as the plans for the extraction of mineral resources can be accessed by the public and members of the public affected can submit objections. 

A hearing of the authorities concerned will take place in parallel to the engagement of the general public. Objections are discussed with the participation of all bodies and persons who have raised objections. A decision on the objections is made by the competent authority (in this case the mining authorities of the Federal States) and adopted in the planning approval resolution. The planning approval procedure under mining law is also a bound decision, one which is not characterised by planning considerations and discretion. In addition, it not only binds the decisions of other authorities at the horizontal level, it also applies to the following operating plans (vertical concentration) as per § 57a (5) BBergG. All publicly available information on environmental impact assessments of mining projects can be accessed on the environmental portals of Federal and State governments.3

However, as a matter of principle, no planning approval procedure is carried out for operating plan procedures without EIAs. Accordingly, in these cases the responsibility of other authorities to decide on authorisations, permits, licenses, etc. remains unaffected. Where necessary for the actual implementation of an extractive sector project, further authorisations, permits and licenses must be obtained from the relevant authority in each case. These may be construction permits, forest conversion authorisations, legal immission control approval procedures4, permits under explosives legislation or the granting of exemptions from nature and landscape prohibition regulations5.

 

Public access to environmental information and “authorisation decisions”

The right to environmental information gives everyone free access to environmental information held by agencies that have a duty to disclose information. To achieve this, the Federal Government and Federal States have issued regulations that implement the regulations under international law (the “first pillar” of the Aarhus Convention) and the Access to Environmental Information Directive 2003/4/EC of the European Union. A distinction needs to be made between the German Federal Freedom of Information Act (UIG), which governs access to environmental information at federal level, and the environmental information laws of the Federal States, which apply to agencies in the Federal States that have a duty to disclose information. At the federal level, the Freedom of Information Act (IFG) applies in respect of other official information held by federal authorities.

Environmental information (cf. § 2 III UIG) includes both data on the state of the air, atmosphere, water, soil, landscape and natural habitats and information on noise, energy, substances and radiation. According to § 3 I UIG, “agencies that are required to provide information”, i.e. all offices involved in public adminis- tration and not only the “environmental authorities” (cf. § 2 I UIG), must provide access to environmental information.

Anyone who wants access to environmental information must first make an application (§ 4 UIG) to an agency that is required to provide information. It should be clear from the application which information the applicant wishes to access. In some cases, fees may apply (§ 12 I UIG).

The right to access information may be limited to protect certain interests, a definitive list of which is in the UIG (§ 8 I UIG). These include the protection of personal data, copyright or business and company secrets. It is possible to appeal against the refusal of an application to access information.6

Environmental information on the emissions from individual plants for natural resources extraction (and other industries) is made available to the public upon application. This information includes authorisations granted to companies, permits and licenses for the effects on the environment. Decisions on authorisations that have considerable effects on the environment must be independently published by the relevant authorities (cf. § 10 II).7 Some Federal States use extensive “Environmental portals” to publish authori- sation decisions and general environmental informa- tion.8 There is a central internet portal at the federal level, which provides information on environmental impact assessments described above in 3.b iii. Since 2021 this portal can also be used to disseminate general environmental information (cf. § 10 III UIG).9 

Example of an authorisation decision

Citizens can find out specific information on effects on the environment authorised by the authorities from the authorisation decisions. As an example, excerpts are quoted from the decision “Water-rights permit (…) to discharge salty waste water from the Neuhof-Ellers and Werra plants into the River Werra” for the company K+S Minerals and Agriculture GmbH in Philippsthal.10 The company mines potassium-based salts in the works and discharges salty waste water into the River Werra during this process. The authorisation decision of the Regional Council in Kassel specifies the volume of salty waste water that it is permissible to discharge. In addition to this, aspects are addressed extensively such as the involvement of the public and the effects on protected resources such as “water”, “human health”, “animals, plants and biological diversity” and “landscape”.

 
[Extract]
“[…] I. Reasons for the decision
1. Permission
The applicant is […] granted the water-rights permit to discharge salty waste water from the Werra and Neuhof-Ellers works into the River Werra via the discharge points at the Hattorf site at plot 46/2 (Werra) […] and the discharge point at the Wintershall site at plot 379/3 (Werra) […] and via ditch 3 (waste water from the compensation and safeguarding measures), time limited until 31 December 2021 with the following content:
1. Discharge quantity
A total of max. 6.7 million m3/a of salty waste water is allowed to be discharged into the Werra from the production and operations of salt dumps and salty waters from the Neuhof-Ellers and Werra mines, the Hattorf/Wintershall mine, the diffuse inflows/springs of the Neuhof-Ellers works and the salty surface water of the factory site of the Neuhof-Ellers works.
There are no limits on the quantity for discharging salty groundwater from the safeguarding and compensation measures, which are or become necessary because of solid residues in the piles, but instead the following load limits apply.
2. Loads
The annual load of discharged mineralisation (K, Mg, Na, Cl, SO4) from groundwater from the safeguarding and compensation measures, which are or become necessary because of the piles of solid residues, is not allowed to exceed an annual limit of 28,500 tonnes.”11

1 Federal Mining Act (BbergG):    https://www.gesetze-im-internet.de/bbergg/

2 Water Resources Act, available online at: https://www.gesetze-im-internet.de/whg_2009/

3 Federal government’s EIA portal (https://www.uvp-portal.de/), EIA network – environmental impact assessments of the Federal States (https://www. uvp-verbund.de/portal/), as an example the EIA portal of Lower Saxony (https://uvp.niedersachsen.de/startseite).

4 Also a glossary for the Water Resources Act (WHG); on the legal framework for abstracting water also Chapter 7.1 d.

5 Glossary for Federal Immission Control Act (BImSchG).

6 The origin of the information and text passages is the German Federal Ministry for the Environment. These and further information can be accessed at: https://www.bmu.de/themen/bildung-beteiligung/umweltinformation/umweltinformationsgesetz/ (Accessed on 15 December 2021).

7 Information on where such information can be accessed or found is sufficient

8 Example: Environmental portal of North Rhine-Westphalia (https://www.umweltportal.nrw.de/); Lower Saxony (https://numis.niedersachsen.de/ portal); Thuringia (https://www.umweltportal.thueringen.de/) An overview of existing environmental portals can be accessed via https://rohstofftrans- de/download/#umweltinformationen.

9 The central internet portal can be found at: https://www.uvp-portal.de/.

10 The complete decision can downloaded and accessed at https://rohstofftransparenz.de/download/#umweltinformationen.

11 Page 12 of the decision

LEGAL FRAMEWORK AND PUBLIC AUTHORITIES

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Glossar

In Federal States in which legislation does not include an excavation law and the State-level Nature Conservation Law does not apply to the extraction of non-energetic, ground-based natural resources in the context of dry excavations, this type of natural resource extraction falls within the scope of the relevant state building regulations.

Legal limitations also exist: State building regulations apply to the excavation of solid rock (limestone, basalt, etc.), for example, in quarries with an area of up to 10 hectares (ha) in which no blasting is carried out. In the event that this area is exceeded, or if water bodies are formed after completion of the extraction operations, the German Federal Immission Control Act (BImSchG) and/or Water Resources Act (WHG) are applicable.
In Bavaria and North Rhine-Westphalia, the above-ground excavation of non-energetic, ground-based natural resources in the context of dry excavations is determined at state level by the existing excavation laws (AbgrG). For the excavation of solid rock (limestone, basalt, etc.) in quarries where blasting does not occur, the AbgrG applies to sites with an area of up to 10 ha. In the event that this area is exceeded, or if water bodies are formed after completion of the extraction operations, the German Federal Immission Control Act (BImSchG) and/or Water Resources Act (WHG) are applicable. In the other Federal States, this type of natural resources extraction is regulated by the respective state building regulations or by the state-level nature conservation laws.

In general, the AbgrG applies to those raw materials the excavation of which is not directly subject to mining law or the mining authorities. These raw materials include (in particular) gravel, sand, clay, loam, limestone, dolomite and other rocks, bog mud and clays. However, the jurisdiction between AbgrG and mining law can vary from case to case in the case of certain raw materials, such as quartz gravels. The requested authority must always verify its own jurisdiction in each case. The AbgrG also encompasses surface area usage and the subsequent rehabilitation of the area.
The German Federal Immission Control Act (BImSchG) is the most important and practice-relevant law in the field of environmental law. It constitutes the basis for the approval of industrial and commercial installations. In the natural resources extraction industry, quarrying companies must have approval to extract stones and earth. Every quarrying area of 10 hectares or more must undergo a full approval procedure, including public participation and UVP (environmental impact assessment). A more simplified approval procedure is used for quarrying areas of less than 10 hectares.

The sphere of responsibility for the legal immission control approval procedure is fully specified in the Immission Control Acts of the Federal States. The Federal States are tasked with the administrative enforcement of the approval procedure. Each individual state’s Environment Ministry – the highest local immission protection authority – usually bears the responsibility for this procedure. Subordinate authorities include regional councils, district authorities and lower-level administrative authorities. Administrative jurisdiction generally lies with the lower-level administrative authorities.
The GDP measures the value of goods and services produced domestically (creation of value) within a given period (quarter, year). The Federal Office of Statistics calculates the GDP as follows: production value minus intermediate consumption = the gross value added; plus taxes on products and minus subsidies = GDP
The gross value added is calculated by deducting intermediate consumption from the production values, so it only includes the value added created during the production process. The gross value added is valued at manufacturing prices, i.e. without the taxes due (product taxes), but including the product subsidies received.

During the transition from gross value added (at manufacturing prices) to GDP, the net taxes (product taxes less product subsidies) are added globally to arrive at an assessment of the GDP at market prices’. Source: Destatis
The planning approval procedure under mining law is used for the approval procedure of a general operating plan for projects which require an environmental impact assessment (§§ 52(2a), in conjunction with 57 a of the BBergG).
There are different definitions and methodological approaches at the international as well as at the national level as to what subsidies are and how they are calculated. According to the definition of the German government’s subsidy report, this report considers federal subsidies for private companies and economic sectors (ie grants as cash payments and tax breaks as special tax exemptions) which are relevant to the budget. Subsidies at the federal level can be viewed via the subsidy reports of the federal states (see Appendix 5 of the German government subsidy report).
In compliance with § 68(1), Water Resources Act (WHG), the excavation of landowners’ natural resources such as gravel, sand, marl, clay, loam, peat and stone in wet extraction operations requires a planning approval procedure. The reason for this is that groundwater is exposed in wet extraction, resulting in above-ground water. The planning approval procedure is implemented by lower-level water authorities.

The procedural steps of the planning approval procedure are governed by the general provisions of §§ 72 to 78 of the Administrative Procedures Act (VerwVfG). Within the meaning of § 68(3), nos. 1 and 2 of the WHG, the plan may only be established or approved if an impairment of the common good is not to be expected and other requirements of the WHG as well as other public-law provisions are fulfilled.