Checklist on EU environmental law concerning hydropower development

Environmental Impact Assessment procedure

1.

Is the proposed project listed under the Annex I list of projects, for which the EIA is mandatory?

2.

Is the proposed project listed under the Annex II list of projects, for which the EIA can be requested upon the adequate screening?

3.

Does the national law on EIA procedure set the threshold/criteria for the hydropower projects that are listed under Annex II?

4.

Does the national law require from the competent authorities to assess the project in the screening phase based on the factors, such as inter alia, projects nature, size and location, or only one or two of these factors?

5.

Did you request the screening decision, and all of the documents that the developer submitted to the competent authority?

6.

Did the investor obtain the location conditions?

7.

Were there any other assessments conducted by the other authorities, such as the Nature Protection authorities or Water Agencies?

8.

Did the developer request a water permit from the Water Agency?
Did the Water Agency conduct any assessment on the impact on the status of water and water flow?
Did they set the minimum environmental flow?

9.

Did the Nature Protection authorities issue any Nature Protection Conditions?

10.

Is the project in protected area, or Nature 2000?
If it is outside of these areas, will there be an impact on these areas by the proposed project?
Are there any protected species?

11.

In case of the above, was there any appropriate assessment conducted whether inside of the EIA report or separately?

12.

Was the proposed project included in any planning document?
Were there any reservations against the proposed type of projects in the planning document?

13.

Were the project’s characteristics assessed, inter alia, in relation to its cumulative effects with existing and/or approved projects of the same and different kind?

14.

Is the determination by which the competent authority takes a view that a project’s characteristics do not require it to be subjected to an EIA, accompanied by all of the information that makes it possible to check that it is based on adequate screening?

15.

Did the competent authority take its decision within 90 days from the date on which the developer submitted all of the relevant information?

16.

Was the screening decision based on all of the relevant criteria set under Annex III?

17.

If the competent authorities decided that the project is not likely to have a significant effect on the environment, do you possess data or scientific information that makes you believe that the project will have a likely significant effect on the environment, or that the screening was not done properly?

18.

Does the national law allow you to challenge the screening decision, whether before the Administrative authorities (e.g. Local municipality, Environmental Agency, Ministry of Environment etc.), or before the Court?
What is the deadline for challenging the screening decision?

19.

Was the EIA report prepared by competent experts?
Does it include at least all of the necessary information listed under article 5(1) and Annex IV?

20.

Does the environmental impact assessment identify, describe and assess in an appropriate manner, the direct and indirect significant effects of a project on the factors listed under article 3?
Did the competent authority carry out such an assessment itself?

21.

Did you participate in the public participation? Did you receive a response on your comments?
Were these comments taken into account?

22.

Does the planned project have transboundary environmental impact on the neighbouring state(s)?
Was this stare included in the EIA procedure?

23.

IDid the competent authority issue an approval on the EIA study?
What is the deadline for challenging this decision (i.e. 15 or 30 days)?

24.

Did the competent authority grant a development consent?
What is the deadline for challenging this decision (i.e. 15 or 30 days)?

Strategic Environmental Impact Assessment

1.

Is the proposed plan or programme covered by the type of plans and programmes for which the SEA procedure is required (e.g. for energy, water management, town and country planning or land use, which set the framework for future development consent of projects listed in the EIA Directive, which require an assessment pursuant to the Habitats Directive)?

2.

Is the proposed plan and programme, listed under the article 3.2, determined to use small areas at local level, or is it a minor modification of the plan and programme?

3.

Is the proposed plan and programme a type of plan and programme that sets the framework for future development consent of projects, but it is not listed under the article 3.2, or Annexes of the EIA Directive?

4.

Did the competent authority conduct a screening procedure of plans and programmes under questions 2 and 3 by taking into account relevant criteria set out in Annex II?

5.

Were the conclusions from the screening procedure and the reasons for not requiring an environmental assessment made available to the public? Are you allowed under the national law to challenge this decision?

6.

Does the environmental report identify, describe and evaluate the likely significant effects on the environment of implementing the plan and programme, and reasonable alternatives?
Does the environmental report contain all of the information listed under Annex I of the Directive?

7.

Would the planned plan or programme have a likely significant effects
on protected sites and selected species under the Habitats Directive?
Was this assessment part of the environmental report?

8.

Are the proposed alternatives realistic and identified, described and evaluated in a comparable way?

9.

Is the proposed plan or programme likely to have significant effects on the environment in another country?
Was the proposed plan or programme subject of the transboundary consultations?
Did you notify the potentially affected state about the plan or programme?

10.

Did you participate in the public participation on the proposed plan and programme and the environmental report?
Were the results of the consultation taken into account during the preperation of the plan or programme and before its adoption or submission to the legislative procedure?

11.

Were the results of public consultations taken into account in the final decision?

12.

Upon the adoption of the plan or programme, did the authorities make public:
a) the plan or programme as adopted;
b) a statement summarising how environmental considerations have been integrated into the plan or programme and how the environmental report and opinions have been taken into account;
c) the reasons for choosing the plan or programme as adopted,
in the light of the other reasonable alternatives dealt with, and
d) the monitoring measures?

Water Framework Directive procedure

1.

Did you take part during the public consultations for the River Basin Management Plan (RBMP)?

2.

Was the SEA procedure conducted for the RBMP? Did you participate?

3.

Is the proposed project expected to cause deterioration or compromise the achievements of good status/potential of the water body?

4.

Does RBMP include the proposed project, and set out and explain the reasons for proposed project?

5.

If yes, did the authorities apply the derogation test under article 4.7?

6.

Did the assessment under the SEA include a chapter on article 4.7 of the WFD?

7.

Was the assessment under the article 4.7 part of the EIA procedure for a specific project? Was the test under article 4.7 justified within the EIA study?

8.

If the project was not required to go through the EIA procedure, was the article 4.7 procedure conducted separately?

9.

Were all practicable steps taken to mitigate the adverse impact on the status/potential of the affected water body(ies)?

10.

Can the beneficial objectives served by those modifications or alterations of the water body(ies) be achieved by other means which are technically feasible, do not lead to disproportionate cost and are a significantly better environmental option?

11.

Did the authorities consider the reasons for those modifications or alterations to be of overriding public interest and/or are the benefits to the environment and to society of achieving the WFD objectives outweighed by the benefits of the new modifications or alterations to human health, to the maintenance of human safety or to sustainable development?

12.

Did the authorities assess the cumulative effects of the proposed project on the status of the water body?

13.

Do the exemptions (derogation) guarantee at least the same level of protection as existing EU legislation and do they ensure not to permanently exclude or compromise the achievements of the wider objectives of the WFD in other bodies of water within the same RBD?

14.

Does the river host protected species or habitats under the Habitats Directive? If so, does the RBMP include additional conservation measures to protect those species or habitats?

15.

If the project does not compromise the objectives of the WFD, does it adversely affect the integrity of a Natura 2000 site? If so, was the project anyways approved under the WFD?

16.

Did you request a water permit for the proposed project? Did the water permit set any mitigation measures, or minimum ecological flow?

17.

Did you challenge the water permit before the national authorities or courts?

18.

Did you request and/or challenge any other document where the derogation under art. 4.7 was conducted?

Birds and Habitats Directive procedure

1.

Is the plan or project directly connected with, or necessary to, the management of the site for nature conservation purposes?

2.

If no, is the plan or projects likely to have significant effects on the site?

3.

Did the authorities consider whether there are any likely significant effects on a protected site either alone or in combination with other plans or projects (pre-assessment stage or “screening”)?

4.

In the appropriate assessment, did the authorities assess implications in view of the site’s conservation objectives?

5.

Did they conduct in depth, documented, scientifically motivated analysis, taking into account the conservation objectives and the vulnerability of the site?

6.

Was the information up-to-date, and did it comprehensively identify all of the potential effects?

7.

Did they weigh economic and social interests against the conservation objectives of the site?

8.

Did they assess cumulative and in-combination effects with other plans and/or projects in or outside of the Natura 2000 site?

9.

Did the evaluation include plans or projects outside of the Natura 2000 and its impact on the site, as well as the synergic effects with other plans and projects?

10.

Did the cumulative assessment consider already existing installations on the river (e.g. the “pre-load”)?

11.

Was the appropriate assessment done within the EIA or SEA study?
Did these studies separately assess the specificities of the site?

12.

Can it be concluded that the plan or project will not be adversely affect the integrity of the site?

13.

Can the negative impacts be removed, e.g. through mitigation measures?

14.

Despite answering no to the questions 10 and 11, did the authorities grant the authorisation?

15.

Was the removal of impact through mitigation measures designed in a way where the damage would be compensated, rather than avoided or removed?

16.

Was each mitigation measure described in detail, with an explanation based on scientific evidence of how it will eliminate, or reduce the adverse impacts?

17.

Did the authorities demonstrate the absence of adverse effects rather than their presence, reflecting the precautionary principle, meaning that no doubts remain as to the absence of adverse effects on the integrity of the site linked to the plan or project being considered?

18.

Despite the breach of art. 6.3, did the authorities apply derogations under the art. 6.4?

19.

When applying the derogations despite the negative assessment, did the authorities show that there are no alternative solutions, and there are imperative reasons of overriding public interest, and provided compensation? In this order.

20.

Does the site hosts a priority natural habitat type or a priority species?
If yes, was the only considerations which were raised those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest?

21.

Would the project affect protection of certain species across their entire natural range within the EU, regardless of whether they are inside or outside of Natura 2000 sites?

22.

If yes, was the derogation allowed to prevent damage to crops or livestock or in the interests of public health and safety? Were there other satisfactory solutions and the consequences of these derogations that are not
incompatible with the overall aims of the Directive?

23.

Did you request all the documents mentioned above? Did you request any other document that includes assessment or the conditions by other authorities, such as the Environmental Agency or Nature Protection authority?

24.

Can you challenge a decision done on the appropriate assessment (art. 6.3) or the derogation (art. 6.4)? What is the deadline?

footnote 39

The significance of any damage that has adverse effects on reaching or maintaining the favourable conservation status of habitats or species has to be assessed by reference to the conservation status at the time of the damage, the services provided by the amenities they produce and their capacity for natural regeneration. Significant adverse changes to the baseline condition should be determined by means of measurable data such as:

the number of individuals, their density or the area covered;

the role of the particular individuals or of the damaged area in relation to the species or to the habitat conservation, the rarity of the species or habitat (assessed at local, regional and higher level including at Community level);

the species’ capacity for propagation (according to the dynamics specific to that species or to that population), its viability or the habitat’s capacity for natural regeneration (according to the dynamics specific to its characteristic species or to their populations);

the species’ or habitat’s capacity, after damage has occurred, to recover within a short time, without any intervention other than increased protection measures, to a condition which leads, solely by virtue of the dynamics of the species or habitat, to a condition deemed equivalent or superior to the baseline condition.

Damage with a proven effect on human health must be classified as significant damage. The following does not have to be classified as significant damage:

negative variations that are smaller than natural fluctuations regarded as normal for the species or habitat in question;

negative variations due to natural causes or resulting from intervention relating to the normal management of sites, as defined in habitat records or target documents or as carried on previously by owners or operators;

damage to species or habitats for which it is established that they will recover, within a short time and without intervention, either to the baseline condition or to a condition which leads, solely by virtue of the dynamics of the species or habitat, to a condition deemed equivalent or superior to the baseline condition.

Toolkit

Checklist on EU environmental law concerning hydropower development

Environmental Impact Assessment procedure

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Strategic Environmental Impact Assessment

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Water Framework Directive procedure

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Birds and Habitats Directive procedure

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