Marine Expert Group meeting
7 November 2013
6.Applying Art. 6 of Habitats Directive to Fisheries
Implementing fisheries measures for marine Natura 2000 areas is a management priority for meeting the conservation objectives of the areas. In that context clarification is specifically needed on the application of Art. 6(2) and 6(3) to fishing activities. As a follow up to previous related work (Common methodology for assessing fisheries impact), and on the basis of discussion at the Marine Expert Group meeting of 6 November 2008, an overview has been carried out of how Member States seek to comply with those provisions. This overview will feed into the preparation of an interpretation note on the matter.A possible structure for such an interpretation note is provided in Annex to this document.
The participants are invited to consider the attached overview and provide feedback on proposed content and structure of the interpretation note.
Application of Article 6.2 & 6.3 of the Habitats Directive
to fishing activities
THE N2K GROUP
European Economic Interest Group
2013
Contents
BACKGROUND
SUMMARY AND CONCLUSIONS
THE NETHERLANDS
Managing Fisheries under Article 6.2 – avoiding deterioration etc.
Managing Fisheries under Article 6.3 - plans & projects requiring AA
UK
Managing Fisheries under Article 6.2 – avoiding deterioration etc.
Managing Fisheries under Article 6.3 - plans & projects requiring AA
IRELAND
Managing Fisheries under Article 6.2 – avoiding deterioration etc.
Managing Fisheries under Article 6.3 - plans & projects requiring AA
FRANCE
Managing Fisheries under Article 6.2 – avoiding deterioration etc.
Managing Fisheries under Article 6.3 - plans & projects requiring AA
GERMANY
Managing Fisheries under Article 6.2 – avoiding deterioration etc.
Managing Fisheries under Article 6.3 - plans & projects requiring AA
CROATIA
Managing Fisheries under Article 6.2 – avoiding deterioration etc.
Managing Fisheries under Article 6.3 - plans & projects requiring AA
SPAIN
Managing Fisheries under Article 6.2 – avoiding deterioration etc.
Managing Fisheries under Article 6.3 - plans & projects requiring AA
RESEARCH PROGRAMMES
This paper has been prepared for the Commission to present an overview of the approaches being taken by several Member States to apply Article 6.2 & 6.3 of the Habitats Directive in relation to fisheries. It does not constitute an endorsement by the Commission of these approaches.
BACKGROUND
Article 6.1 of the Habitats Directive requires Member States to establish conservation measures which correspond to the ecological requirements of the habitats and species for which Natura 2000 sites have been selected. These positive and proactive interventions may be within the framework of a management plan and can include statutory, administrative or contractual measures. Although Article 6.1 sets out a key requirement of the Directive in relation to Natura 2000, it also the case that Articles 6.1- 6.4 are interlinked because, taken together, they indicate various tasks required to safeguard the nature conservation interests of Natura 2000 sites.
Articles 6.2 makes provision for the avoidance of habitat deterioration and significant species disturbance. It requires Member States to be proactive by taking preventative measures to avoid deterioration and disturbance that could be significant in relation to the objectives of the Directive.
Article 6.3 and 6.4 of the Habitats Directive lay down the procedure to be followed for any plans and projects likely to have a significant effect on a Natura 2000 site. Such plans and projects require an Appropriate Assessment, and may only proceed if they will not adversely affect the integrity of the site or, in exceptional circumstances, in spite of a negative assessment, and provided there are no alternative solutions, and the plan or project is considered to be of overriding public interest.
Where it is considered that the activity is not a plan or project in the sense of Article 6.3, Member States must nevertheless ensure the species and habitats for which a site has been designated do not deteriorate in accordance with Article 6.2. If the activities are not directly connected with or necessary to the management of the site (in line with Art 6.1), then an Appropriate Assessment may not be necessary either.
The Commission has provided general guidance on the provisions of Article 6 however some Member States are requesting specific assistance in determining the applicability of Article 6.2 & Article 6.3 to fishing activities. DG Environment, is preparing a clarification note on this point. As a contribution to this work, N2K have been asked to collate and present an overview of how several Member States are seeking to comply with Articles 6.2 & 6.3.
This paper is based on information provided by the Commission, some informal discussion with Member States where possible and internet searches. Further investigation may be required to get a more detail understanding of the how Member States are addressing this question both in terms of approach and practical application. At the same time, the findings to date have identified a number of issues that could usefully be covered in the clarification note.
SUMMARY AND CONCLUSIONS
Several Member States have requested further interpretation of the Habitats Directive in relation to fisheries and also clarification of the process by which the management of fishing activities in Natura 2000 sites links to the CFP[1]. The Commission has provided some guidance to help improve this understanding[2] but is also preparing a further clarification note on the application of Article 6.2 and 6.3 to fisheries activities using existing jurisprudence and Case law[3]. The material presented in this paper will help inform that clarification.
An overview of the current approach to application of Articles 6.2 & 6.3 in relation to fishing activities in Natura 2000 sites is provided for seven Member States; Croatia, France, Germany, The Netherlands, Ireland, Spain and the United Kingdom. This is based on correspondence between Member States and the Commission (DG Environment), informal discussion with some Member States and internet searches. Although other Member States are also examining this issue there was insufficient documentation on their approaches to include them in this overview.
Member States are at different stages in their application of Articles 6.2 & 6.3 in relation to fishing activities. Several Member States have set out their processes, undertaken assessments, and introduced measures for fisheries management in Natura 2000 sites. However, it should be noted that some of these processes have evolved or are continuing to evolve, especially in light of national reviews or legal opinion[4]. In other cases the implementation of Articles 6.2 and 6.3 in relation to fishing activities in marine Natura 2000 sites has still to commence[5].
A number of research programmes have provided a focus for gathering data and involving stakeholders in developing proposals for the management and regulation of fisheries activities in Natura 2000 sites. They have supported essential work to underpin the application of Article 6.2 & 6.3 in relation to fisheries in several countries (e.g. Germany, Netherlands, Spain). Nevertheless, there remains the difficulty of having sufficient and appropriate data to inform the setting of conservation objectives, and deciding on conservation measures which correspond to the requirements of the species. In the latter case collecting as well as accessing existing data on fishing activities within and around Natura 2000 sites is an issue for Member States.
The documentation reviewed for this paper suggests that at the present time no Member States have completed the entire process from assessment of potential impacts through to the full introduction of the necessary measures to manage fishing activities in all their marine Natura 2000 sites. There also remains a need to confirm whether the processes and actions that have been introduced so far are fully compliant with the requirements of Articles 6.2 & 6.3.
The management of fishing activities in Natura 2000 sites is mostly being pursued under the scope of Article 6.2 i.e. the requirement to avoid deterioration and disturbance of the habitats and species for which the areas have been designated. This is generally taking the form of a “risk assessment” which sets out the likelihood of particular fishing methods having an impact on habitats/species of interest and the relevant conservation objectives.
Generic and site specific risk assessment matrices are being used to comply with Article 6.2 and the findings used to formulate management proposals[6]. These might include restricting fishing activities to or away from particular areas or to set time periods. There may also be catch limits and required modifications if using particular types of fishing gear. The results of these risk assessments may be incorporated into site management plans or promoted by other means[7].
Where management plans have been prepared they typically provide a summary of the conservation measures which are being established to comply with Article 6.1 as well as showing the link to conservation objectives. There is also typically reference to the underlying data and evidence used to determine what measures are required. The proposed fisheries measures are being derived mainly on the basis of risk assessments and being implemented through actions such as zoning. To date, there has been limited consideration of cumulative and in-combination effects of fisheries measures with measures thatare not concerned with commercial fisheries.
When Member States consider a fishing activity to be a plan or project in the sense of Article 6.3, the Appropriate Assessment procedure is undertaken. To date, these are mostly concerned with aquaculture (e.g. shellfish lays and oyster culture) although some mobile fisheries, usually those which require specific licenses have also been considered under Article 6.3[8].
Different approaches are being used as regards the application of Article 6.2 versus Article 6.3. In particular there continues to be a debate in some Member States about what type of fishing activity constitutes a plan or project and should therefore be subject to Article 6.3. There are some apparent discrepancies which merit clarification[9].
There also appear to be differences in interpretation of the links between Article 6.2 & 6.3. Some Member States (e.g. UK) have taken the view that a risk assessment under Art 6.2 does not necessarily remove the need for an appropriate assessment under Art 6.3. Other Member States do not appear to envisage any links (e.g. France according to ongoing communication with the Commission).
Some Member States have completed ‘strategic’ appropriate assessments in relation of fishing activities and introduced regulations in response to these assessments where considered necessary, Examples referred to in this paper are from the Netherlands (e.g. Seabed Protection Areas with restricted access for beam trawlers in Voordelta confirmed by Commission Decision 2008/914/EC); the UK. (e.g. closed areas for the hand worked cockle fishery in the Wash formalised through the Wash Fishery Order Regulations) and Ireland (e.g. Castlemaine Harbour where a procedure is set out to determine the annual area to be fished for seed mussel, typically less than 50% of the historic extent of the main bed, but no additional regulation).
There remains the question of how far to go with ‘generic assessments’ and whether these could be considered sufficient to not require Appropriate Assessments under Article 6.3 or whether their purpose is rather to facilitate the AA process, for instances by helping to screen out projects early on so that full AAs are not necessary. There is relevant Case Law on this issue[10] however the interrelationship between Article 6.2 and 6.3 could usefully be elaborated further, especially as regards the first initial screening test which determines whether there is a risk of significant effects (in which case an AA is required).
Whilst measures are being introduced to comply with Articles 6.2 & 6.3 there remains the need to examine whether, when taken together they are enough to comply with Article 6.1 in establishing the conservation measures or whether additional positive and proactive management measures are needed in relation to fisheries activities in Natura 2000 sites. Also, it is important to clarify what is meant by plans or projects ‘directly connected with or necessary for the management of the site’ as such plans and projects can also systematically be excluded from the need to carry out AAs under Article 6.3.
Potential issues for further elaboration in a clarification note.
- What are the requirements of Article 6 of the Habitats Directive?
-Overall
-Articles 6(2) & 6(3)
Commonalities
Key Differences
Relationship between
- How have key words in Article 6(2) been applied to fisheries?
-ECJ rulings relating to key words in Article 6(2)
-‘appropriate steps’ in relation to fisheries
-‘avoidance’ in relation to fisheries
-‘deterioration and disturbance’ in relation to fisheries
-‘significance of effects’ in relation to fisheries
- How have key words in Article 6(3) been applied to fisheries?
-ECJ rulings relating to key words in Article 6(3)
-‘plan or project’ in relation to fisheries
-‘not directly connected with but likely to have a significant effect thereon’ in relation to fisheries
-‘appropriate assessment’ in relation to fisheries
-‘adverse effects on site integrity’ in relation to fisheries
- Links between Article 6(1) conservation measures and fisheries management measures
- Plans and projects in the context of fisheries
- What constitutes a fisheries plan or project
- Types of activities which have been identified as fisheries plans or projects
- The significance of fishing methods in determining plans & projects
- The linkage between Article 6(2) & 6(3) in relation to fisheries
- What are the opportunities for streamlining the application of Article 6(2) & 6(3)?
-Generic risk assessments
-Systematic screening
-Specific general conditions
-
- Introduction of required measures to comply with Articles 6(2) & 6(3) under the CFP
-The 11 point guidance
-Obligations under Articles 12 & 17 of the revised CFP [Commission & member states]
- Compliance with Article 6(2) & 6(3) for different types of fishing activity
-Appropriate Assessment for mobile gears (& unplanned activities?)
- What methods could be considered when undertaking appropriate assessment for wide ranging species?
- How might non-fisheries activities be considered alongside fisheries to determine in-combination effects?
THE NETHERLANDS
In the Netherlands data gathered under the ‘Fisheries Measures in Protected Areas Project’ (FIMPAS) which ran from 2009-2011 has been key to informing and developing Dutch proposals for the management of fisheries in three offshore Natura 2000 sites[11]. A separate initiative (the VIBEG agreement[12]) has been undertaken for inshore areas and resulted in an agreement of principles, measures and commitments for fisheries measures in the first management plan period for two coastal zone Natura 2000 sites. Although not legally binding it contains a policy obligation for the parties concerned to adopt the agreed measures and to comply with them after their adoption.
Managing Fisheries under Article 6.2 – avoiding deterioration etc.
The FIMPAS project undertook an assessment of the extent to which fishing activities would threaten achieving the conservation objectives of Natura 2000 sites. The starting point was the recommendations for conservation objectives in the Dutch sector of the North Sea[13]. Three workshops were held as part of the project. The first was concerned with establishing the data basis on which to carry out subsequent work. This involved documenting existing data, reviewing existing knowledge on the ecological impacts of fisheries prior to the workshop and incorporating additional data brought to the workshop. The second workshop undertook an assessment of the impact of fisheries on the designated sites with a particular focus on the overlap of time and space between fisheries and conservation objectives. The final workshop was used to generate management actions to meet the defined conservation objectives in line with agreed principles.
The FIMPAS project covered the Frisian Front (SPA) Cleaver Bank & Dogger Bank (SACs). Outcomes were an agreement on the appropriateness of a ban on gill net fisheries for Frisian front for 6 months of the year. Opinions differed for Cleaver Bank and in the end the Steering Group presented a zoning proposal covering beam trawling and bottom contact fisheries[14]. Agreement on Dogger Bank management measures is being pursued through an international forum (Dogger Bank Steering Group) involving other Member States that also have designation parts of the Dogger Bank as a Natura 2000 site. Agreement between the parties was reached in May 2013, and subject to a legal process required by the Dutch Government, a request for regulation to the European Commission is pending.
Fisheries management measures to ensure compliance with the Habitats Directive have also been introduced for coastal Natura 2000 sites following consideration of potential impacts. These have been proposed under the 1998 Nature Conservation Act. In the Voordelta they comprise Seabed Protection Areas with restricted access for beam trawlers; creation of 5 rest zones for birds and seals and were part of compensation measures for harbour facilities in Voordelta. The measures were confirmed by Commission Decision 2008/914/EC.
For the North Sea Coastal Zone and the Vlakte van de Raan parties have agreed on zoning and regimes of measures including licence requirements for Dutch fishing vessels and entry notification requirement for foreign vessels. The measures were drawn up following the VIBEG agreement which set out a package of principles, measures and commitments to guide the management of fisheries in these two Natura 2000 sites. The measures are in place for the first management plan period for these sites (expected to be up to 2019). They are legally binding and supported by Commission Decision 2012/638/EU.
The assessments of the potential impact of fishing activities on Natura 2000 features through the FIMPAS project and VIBEG agreement were focused on the main fishing activities in the area independent of whether they were considered to be plans or projects.
Managing Fisheries under Article 6.3 - plans & projects requiring AA
Under the Dutch Nature Conservation Act (Natuurbeschermingswet 1998) any applications for licences of plans or projects which may have significant effects on the natural environment require an assessment in order to be compliant with Art 6.3 of the Habitats Directive. The assessment needs to be submitted by the applicant with the licence application and, following discussion with the relevant administrations and third parties, a decision will be taken with regard to the licence. Decisions can be challenged and final determination may be made by a tribunal.
A ‘prior authorisation procedure’ is being undertaken by the Dutch administration regarding the licensing of Dutch fishing vessels using a beam trawl with tickler chains or pulse trawl fishing in the offshore SACs and the Voordelta SPA. The Dutch Fisheries Board and others submitted a request for a licence for all vessels operating such gears in these sites with an appropriate assessment. The conclusion was that this type of fishing would have significant negative effects on the sand bank habitat and therefore measures were proposed to mitigate these significant effects e.g. zoning and from 2016 no fishing with tickler chains in the Natura 2000 sites. The appropriate assessment was subject to scientific review which reached a similar conclusion about removing the risk of significant effects. The outcome of this strategic level appropriate assessment is a licensing scheme for Dutch and Belgium shrimp trawling vessels and a reporting duty for all foreign vessels operating beam trawls with tickler chains in Dutch territorial waters. This system therefore combines consideration of the potential impacts of these fisheries on Natura 2000 features and a mechanism for management through licensing and reporting.