EC is now considering an Action Plan to improve their implementation
But the UK Government wants to raise the threshold for assessing afforestation projects
December 21st 2016
The EU has finally published the results of its review of the Nature Directives.  The EU’s Nature Directives, consisting of the 1979 Birds Directive and the 1992 Habitats Directive, form the basis for nature conservation across the EU and place a responsibility on all member states to protect the most threatened species and the most important sites. Both directives have been under review under the EC’s ‘Regulatory Fitness and Performance Programme’ (REFIT) which the Commission says is a rolling programme to keep the entire stock of EU legislation under review: “Fitness checks provide an evidence-based critical analysis of whether EU actions are proportionate to their objectives and delivering as expected.” 
As we explained in a previous article, the World Wildlife Fund managed to obtain a report by the consultants who carried out the ‘Fitness Check,’ which stated: “The balance of the evidence shows that the Directives are fit for purpose, and clearly demonstrate EU added value.” This has now been confirmed by the European Commission. In a press release, Commissioner Vella said: “Our European Commission ‘fitness check’ has recognised that the European Birds and Habitats Directives remain relevant and fit for purpose… Our focus will now be on making sure that they are implemented in the most effective and efficient way to realise their full potential for nature, people and the economy.” 
The press release went on to say that the Commission had held an orientation debate on the next steps of the Fitness Check, following a presentation of the key findings of the consultants’ report. One of the key findings was that “the Directives are vital for Europe’s nature conservation policy and as such, their implementation needs to be improved.” The EC says the challenges and problems identified in the evaluation relate primarily “to the insufficient management and lack of adequate investment in the Natura 2000 network of protected sites, as well as to local deficiencies such as delays, unnecessary burdens for project permits, and lack of adequate different assessments in regulating individual species. The evaluation identified the need to improve the implementation of the Directives and their coherence with broader socio-economic objectives, including other EU policy areas such as energy, agriculture and fisheries.”
As a result of the orientation debate, the EC has agreed to develop an Action Plan “to correct the deficiencies encountered in the implementation of the Birds and Habitats Directives.” The Action Plan, it says, “will contain a series of concrete measures such as holding regular meetings with mayors and other local authorities to assess implementation challenges and help member states take the necessary corrective action. Moreover, the Plan will design, in partnership with member states and relevant stakeholders, appropriate implementation guidelines for regional actors, reducing unnecessary burdens and litigation, and incentivising national and regional investment in biodiversity.”
The news has been welcomed by wildlife organisations including the RSPB, whose Senior Policy Officer Alistair Taylor said on the 7th December: “I’m delighted to be able to report that earlier today the 28 members of the European Commission, including the UK’s Julian King, Commissioner for Security Union, endorsed the findings of the Fitness Check, that the Directives are fit for purpose and should not be revised or weakened… This decision comes at the end of a mammoth three-year process that brought together a pan-European coalition of civil society organisations and over half a million citizens in defence of these crucial nature protection laws.”
In September, a partnership of 53 organisations published a report on the status of the UK’s native species, which showed alarming rates of decline. As we reported in a previous article, inadequate habitat management was frequently identified as being among the causes of wildlife decline, whilst the lack of investment for conservation projects was also highlighted. It is interesting to note that these two factors have been acknowledged in the Fitness Check evaluation and were highlighted in the EC press release, and it will also be interesting to see how the proposed Action Plan will unfold, particularly in the context of a British withdrawal from the EU.
Environmental Impact Assessments and Afforestation Projects
Meanwhile, back in the UK, the Government is holding a consultation on Environmental Impact Assessments. An Environmental Impact Assessment (EIA) stems from an EU Directive which applies across the EU to development projects that are likely to have an impact on the environment due to their size, nature, or the sensitivity of their location. The EU Directive requires such a project to be subject to an EIA of its potential impact before development consent can be given, and if appropriate agreeing what work needs to be done to avoid environmental harm.
Defra (the Department for the Environment, Food & Rural Affairs) is proposing a number of amendments to EIA regulations on forestry, agriculture, water resources, land drainage and marine works, following changes by the EU. In 2014 the EIA Directive (2011/92/EU) was amended by a new EIA Directive (2014/52/EU) with the aim of reducing the burden on developers by reducing the size and cost of environmental statements. Specific measures were also aimed at reducing the occasions where an assessment is required, and at reducing the number of projects being subject to assessment. Defra says these changes, “agreed in 2014, will make the EIA regulations work more efficiently, focusing more on where environmental protection is really needed.”
The main change enforced by the EU Directive is a shift in the EIA’s focus to development that is deemed to have a significant impact on the environment, not simply just any impact. What this means in terms of amendments to regulations can be seen in the case of housing, where DCLG (the Department for Communities and Local Government) held a consultation in 2015 over raising the thresholds whereby a housing development is thought to warrant an EIA. Changes in this case were made in May 2015, following the consultation period. See our news item “Environmental Impact Assessments – Government announces changes to thresholds” for more details.
In the current case, Defra is seeking views on amendments to the thresholds for afforestation projects. Defra says that the UK and Welsh Government share aspirations with the forestry sector to increase woodland cover in England from 10% to 12% by 2060, which would require the creation of 5,800 hectares of woodland per year. With such an increase in mind, it has developed maps of ‘low risk areas’ in England where it believes there is potential “to increase the threshold for afforestation projects while ensuring environmental protection is not compromised.” Defra says the UK Government “now needs to make amendments to domestic regulations to implement these changes by 16 May 2017… Our consultation focuses on those areas where we have discretion over how domestic legislation will be changed.” The current thresholds for ‘sensitive areas’ would not change under its proposals; these are 2 hectares for National Parks, Areas of Outstanding Natural Beauty, and the Norfolk Broads; and 0 hectares for certain designated sites .
Defra presents three options for land in England which retain the current thresholds in non-sensitive areas (5 hectares) but, in the low risk areas, raise the threshold from the current 5 to 20, 50 or 100 hectares. The proposed changes in Wales exclude the 100 hectare option. Defra says the further option for England “accounts for England’s lower proportion of woodland cover (10% compared to 15% in Wales) and feedback from stakeholders that 100 hectares is the minimum area to create commercially viable woodland.” Defra also presents three options “for ensuring environmental protection if the threshold in England is increased.” If an afforestation proposal falls under the threshold, there is currently no requirement to notify the Forestry Commission (England) before starting work. Defra’s options include retaining the current approach, or notifying the Forestry Commission with two suggested time periods for it to respond, one of which has the added option of allowing local stakeholders to comment.
The RSPB has expressed concern over the proposal to raise the afforestation thresholds, saying they are critical for protecting existing wildlife habitats, and pointing out that vast areas of formerly wildlife-rich heath, peat and grassland were lost to commercial conifer crops before the EIA requirement existed. In a blog post, the RSPB says: “In fact, we think that the existing rules don’t go far enough. There is evidence to suggest that the five hectare threshold is already too high to protect many small habitats such as flower-rich meadows, which have already declined by 97%. Many of these habitats occur in small patches, less than five hectares, and could already be planted below the Government’s radar under current rules.”
Data from the ‘State of Nature 2016’ report, published in September, shows that, taking the UK as a whole, the steepest rate of wildlife decline is found in grassland and heathland (a 60% fall over the last 40 years), and the report states that the loss of this habitat is largely due to afforestation in some areas and to development in others. In addition, comparing regions of the UK, England fares the worst, with a 61% decline in vascular plants, a 62% decline in the butterfly population, and a 49% fall in the bird population. Defra’s consultation document says that ‘low risk areas’ exclude certain designated sites including “priority habitat shown on the Priority Habitat Inventory.” This inventory (last updated December 2015), does indeed list grassland and heathland, in both upland and lowland areas, as priority habitats. However, much of this habitat lies outside areas designated as SSSIs, where the afforestation threshold is 0 hectares. Given the confusion over the ‘low risk’ and ‘sensitive area’ categories (see Note 4), it would appear that the threshold for priority habitats is the default threshold of 5 hectares. And given the Government’s aim of increasing woodland, particularly in England, this does raise concerns over the potential for further loss of heathland and grassland to afforestation, and the loss of breeding grounds for birds such as the curlew, as well as the loss of habitat for other species. 
The consultation opened on the 13th December 2016 and will run until 30th January 2017. Defra will publish a response before the May 2017 deadline for implementing the changes.
 The final version of the European Commission’s ‘Fitness Check Evaluation’ is a 126pp. report which is available as a PDF document from the EU website and is downloadable by clicking here.
 See the article ‘Fitness Check of the Birds and Habitats Directives: Commission evaluation shows Nature Directives are fit for purpose’ on the EU website. The article says that the EC published the Fitness Check evaluation of the Nature Directives on 16/12/2016 and has concluded that, “within the framework of broader EU biodiversity policy, the Nature Directives remain highly relevant and are fit for purpose. However, full achievement of the objectives of the Nature Directives will depend on substantial improvement in their implementation in close partnership with local authorities and different stakeholders in the member states to deliver practical results on the ground for nature, people and the economy in the EU.” For details of the Nature Directives, see ‘Nature and Biodiversity Law’ on the EU website.
 The European Commission published this press release on the 7th of December, under the headline ‘Fitness Check of Nature legislation: Commission considers options for improved implementation of the Birds and Habitats Directives.’
 Defra says that ‘low risk areas’ are those areas in England that do not fall into the following categories: National Parks, Areas of Outstanding Natural Beauty (AONB), Sites of Special Scientific Interest (SSSI); Special Areas of Conservation (SAC), Special Protected Areas (SPA), National Nature Reserves (NNR), and World Heritage Sites, all of which are defined as ‘sensitive areas’ (see below), together with these categories (which Defra does not list as ‘sensitive areas’): RSPB Important Bird Areas; Acid Vulnerable Catchments; Local Nature Reserves; Common Land; Higher Level Stewardship agreements; Best and Most Versatile Agricultural land (Land Classes 1-3a); priority habitat shown on the Priority Habitat Inventory; registered battlefields; registered parks and gardens and deep peat. As regards thresholds, the thresholds for the following ‘sensitive areas’ stands at 2 hectares (i.e. areas less than 2 hectares do not need an EIA for an afforestation project): National Parks, Areas of Outstanding Natural Beauty, and the Norfolk Broads); whilst the threshold for the following ‘sensitive areas’ stands at 0 hectares (i.e. all afforestation projects need an EIA): National Nature Reserve (NNR); Site of Special Scientific Interest (SSSI); World Heritage Site; Scheduled Ancient Monument; Special Area of Conservation (SAC), including candidate sites; the New Forest Heritage Area, or a site classified or proposed as a Special Protection Area (SPA). It is unclear from the consultation document how the category of ‘sensitive area’ relates to the category defined above in negative terms as those areas that do not fall into the ‘low risk’ category. This lack of clarity means that the thresholds for certain areas, such as Local Nature Reserves, are also unclear. Are Local Nature Reserves a ‘sensitive area’ or simply ‘not a low risk area’? See the consultation document, available as a PDF download by following the link on the Defra website.
 The Priority Habitat Inventory is available as a PDF document from the GOV.UK website which you can download by clicking here.
Forestry Commission site, Mid Wales © Copyright Anthony Bloor and licensed for reuse under a Creative Commons Attribution-ShareAlike 4.0 International License. Defra (Department for the Environment, Food & Rural Affairs) says that the UK and Welsh Government share aspirations with the forestry sector to increase woodland cover in England from 10% to 12% by 2060, which would require the creation of 5,800 hectares of woodland per year. The RSPB is concerned that raising the threshold for environmental impact assessments of afforestation projects could see the further loss of heathland and grassland, a priority habitat that has declined by 60% over the last forty years.