Dealing with delays: Part 1

Abstract

The European Sea Ports Organisation (ESPO) and the European Dredging Association (EuDA) have each assessed within their respective organisations the potential and perceived impact of EU habitats legislation on the port related infrastructure and port operations. Both analyses have been compared and many findings
appeared to be similar. In the paper the main issues will be reviewed. The problems are caused by a combination of factors:

the designation process of the Natura 2000 sites, the decision making procedure under Article 6 of the Habitats Directive, the terminology in the Directives and the multiple approaches to transposition in EU member states.

Port development and dredging projects have suffered from the serious delays in the approval process; if no corrective action is taken, this situation is likely to cause significant economic impact. The analyses here have considered existing case law in which ports, estuaries or coastal zones were implied. The different cases have been categorised in function of the outcome. The paper will briefly discuss three typical cases.

On the basis of these findings a list of concerns has been established and good practice recommendations have been formulated for ports concerned by the issue, i.e. ports situated at or near Natura 2000 sites. Many of the concerns affect also the dredging and marine contracting sector. The paper presents the most robust guidance currently available for the sector.

Introduction: European habitats legislation

In the early stages of the European Economic Community environmental policy and leg islation was developed in support of the common market. More recently, after forming the European Union, environmental policy aiming at sustainable development became a core competence of the EU. Nowadays the environmental dimension needs to be considered in all EU sectoral policies.

The Wild Birds Directive (‘BD’) is the EU’s oldest piece of nature conservation legislation (1979). It creates a comprehensive protection scheme for the EU’s wild bird species. The BD defines separate components: It calls for the designation of Special Protection Areas (SPAs) for migratory and vulnerable birds; it defines a series of bans on activities that directly threaten birds (taking eggs, destroying nests, trading of certain species of wild birds) and it sets limits on hunting.

The impact and effectiveness of the BD has initially been rather imited. However, in 1992 its provisions have been incorporated into a much wider ranging Habitats Directive (‘HD’). The HD provides a comprehensive protection scheme for a range of animals, plants and habitat types by means of Special Areas of Conservation
(SAC). It provides for the creation of a network of protected sites, known as Natura 2000, which is composed of SPAs and SACs.

Many of the sites designated under the BD and HD are situated along the coast lines, comprise estuaries and follow the migratory routes for birds; it is thus not  surprising that many ports, in particular in Western Europe, are situated at or near Natura 2000 sites. The implications of this fact are reviewed in more detail.

Two further preliminary remarks: The specific protection requirements depend on the conservation objectives and should normally be dealt with in a management plan. The requirements for species protection, in particular for birds (SPA), do not necessarily exclude industrial activities in the area.

F. Mink, Senior Advisor, European Dredging Association & R. Hoenders, Policy Advisor, European Sea Ports Organisation, Brussels, Belgium
Edition: Edition 37

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