Meeting the favourable conservation status test for European protected species: A different approach?

First published on the CIEEM website, this article considers whether a "strategic" (rather than a "sitebased") approach to the provision of compensatory measures for European Protected Species might be consistent with the Favourable Conservation Status test ("FCS test") of Article 16 of the Habitats Directive. It concludes that the FCS test contains a degree of flexibility which could benefit from a greater focus within domestic licensing systems and that a more flexible approach might be of benefit to both protected species and those seeking derogation licences

Introduction

Time and again I am asked to advise developers and other licence applicants on European Protected Species (EPS) issues. Most often I am asked to advise on how best to meet the EPS licensing requirements of Regulation 53(2) and (9) of the Conservation of Habitats and Species Regulations 2010 and the related licensing demands of the relevant statutory nature conservation body (most often Natural England, NE).

Time and again I baulk at the (often) excessive costs, resources and delays involved in the exclusion and translocation under licence of often very small numbers of EPS animals (often great crested newts) and the provision of associated compensatory habitat measures, most often within or sometimes adjacent / close to the site of impact.

I have also read recently in relation to great crested newts that "a recent study revealed that in only 12 instances out of the hundreds of mitigation operations sanctioned by government have the licence requirements to monitor the success of the newt translocations been fulfilled. Eleven out of these 12 mitigations resulted in extinction or reduced newt populations compared with the original locations (Lewis et al. 2014)" (Beebee 2015). Sadly, this may be of little surprise to some readers. Few developers are likely to have a genuine interest in securing the ecological success of small areas of compensatory habitat which must often, under licence, be provided adjacent to or within their development sites for EPS. Whilst licences granted by NE and other statutory nature conservation bodies do often contain long-term habitat management obligations on the licence holder, in some cases continuing for years after the licensable works have taken place, in my experience of advising on EPS issues, I have never seen legal action being brought in respect of a breach of such long-term obligations (please note however that this is not to say that such legal action has not been or would not be taken).

I therefore wonder:

is the current "site-based habitat compensation approach to the protection of EPS the most appropriate (by this I mean the existing approach where compensatory measures, including compensatory habitat measures, must be provided by each licence applicant either at the location of impact, or at a location as close to the location of impact as possible)? Or might there be a better way of securing a healthy and secure future for our populations of EPS?

The first key question is this:

is there any scientific evidence to suggest that the conservation of EPS would be more successful if, instead of adherence to a site-based habitat compensation approach, licence applicants had the option to contribute to a "strategic habitat compensation approach" under which larger and better-managed areas for EPS were secured in locations across the different regions of the country, managed by organisations with the relevant expertise and will to succeed in delivering conservation value? I do not know the answer to this question and I would challenge someone with the appropriate scientific expertise to offer an answer. I can see that there may well be concerns about an approach which encourages potentially disconnected "islands" of EPS across the country, particularly where there is a recognition that what we need is instead "more, bigger,better and joined" (Lawton et al.2010). But, on the other hand, for great crested newts at least (based on Beebee 2015, referred to above), there appears to be doubt that the site based habitat compensation approach is working. I can well expect that the answer to my question might be different for each different EPS.

If there is any such scientific evidence for any EPS, the next question is whether the species protection provisions of the Habitats Directive (Articles 12 and 16) are sufficiently flexible to allow an alternative "strategic habitat compensation approach"? If not, does the EU Commission's Fitness Check of EU Nature Legislation (Birds and Habitats Directives) present an opportunity to address this issue?

My view is that Articles 12 / 16 Habitats Directive may well be sufficiently flexible to accommodate such a strategic approach.

Now is a very important time to raise this issue, as we are at a critical point in terms of the Habitats and Wild Birds Directives, with the EU Commission's Fitness Check of EU Nature Legislation (Birds and Habitats Directives) before us. Many opponents of the Directives argue that they should be scrapped due to their supposed inflexibility and impact on economic development. In my personal view it is essential that the Directives are retained. In support of this I set out below how I believe the species protection provisions of the Habitats Directive could be interpreted in a way that might offer greater flexibility in the way we maintain favourable conservation status of our populations of EPS.

Approaches to assessing the "FCS test" of Article 16 Habitats Directive

The key issue in this debate is the EPS derogation condition (the "Favourable Conservation Status (FCS) test") found in Article 16 Habitats Directive and Regulation 53(9)(b) of the Conservation of Habitats and Species Regulations 2010.The FCS test provides that any activity for which an EPS derogation (i.e. an EPS licence) is sought must not be "detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range". This is the legal test which in practice requires a licence applicant to deliver compensatory measures (which in most cases includes compensatory habitat measures) for EPS animals / plants affected by a licensable activity. There is no direct reference to, or mention of, the need to provide compensatory measures in the legislation. This is, instead, the practice which has grown up so as to address and meet the test.NE's EPS Guidance:

"How to get a licence" states:

 "In order to obtain a licence to allow for the capture of EPS, damage or destruction of breeding sites, etc, in advance of any otherwise legitimate activity which may impact on the favourable conservation status of the EPS concerned, you and your consultant ecologist must demonstrate that the damage will be adequately compensated for to satisfy Regulation 53(9)(b)"......"

Current Natural England advice is that there should be no net loss in the local population status of the species concerned, taking into account factors such as population size, viability and connectivity. Hence, when it is unavoidable that an activity will affect an EPS population, the mitigation should aim to maintain a population of equivalent status on or near the original site". This advice is also repeated in, for example, the great crested newt mitigation guidelines (page 12, 5th paragraph).

Taking great crested newts as an example, NE's advice (page 35 of the great crested newt mitigation guidelines) is that one of the following three outcomes should be achieved from development activity, in decreasing order of preference

"no negative impact on great crested newt populations where only a minor impact is predicted, compensation by small-scale relocation and exclusion of newts, combined with habitat creation, enhancement or restoration (all occurring on-site or in the immediate surrounding area, i.e. in situ mitigation) where a major impact is unavoidable, and it is not possible to compensate through onsite mitigation, translocation of newts away from the site, to an area that provides equivalent or better habitats. To achieve this, new habitats, including ponds, will invariably need to be created, enhanced, or restored prior to translocation." [My own experience, working for clients on a number of difficult great crested newt licence applications, is that NE requires (i) that an off-site location must be as close to the impact of the licensable activities as possible; (ii) that it be demonstrated that no threat of disease transmission (including chytridiomycosis fungal disease) could arise (in some cases through undertaking disease screening at the donor and receptor sites); and (iii) demonstration that an on-site strategy is not possible].

NE also comments that (page 36 of the great crested newt mitigation guidelines)

"There should be no net loss of sites, and in fact where significant impacts are predicted there will be an expectation that compensation will provide an enhanced habitat (in terms of quality or area) compared with that to be lost".

Is the approach in paragraphs 11 and 12 above the only lawful approach available or could a more flexible approach still be regarded as consistent with Regulation 53(9)(b) / Article 16 Habitats Directive? I believe that a more flexible approach may well be possible.

I am not privy to the exact legal basis upon which NE would rely to explain its approach in paragraphs 11 and 12 above. Cleary NE's approach will be based on the wording of the FCS test, i.e. the action authorised must not be

"detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range".

I would respectfully suggest that NE may regard the words

"the populations of the species concerned"

as a reference to the specific "site-of impact population(s)" of the particular species affected by the proposed licensable activities. It would follow, from such an interpretation, that the compensatory measures would need to address the impacts on the specific site population(s) affected by the licensable activities, as per NE's approach in paragraphs 11 and 12 above.

The EU Commission's 2007 "Guidance document on the strict protection of animal species of Community interest under the Habitats Directive 92/43/ EEC" would appear, in part, to support such an approach.

Page 61 states (underlining added):

"The conservation status of a species must ultimately be considered across its natural range, according to Article 1(i). In discussions with the Habitats Committee, it was therefore agreed that, for the purpose of reporting under Article 17 (in connection with Article 11), conservation status should be assessed at biogeographic level in each Member State. This would ultimately allow information to be aggregated for complete biogeographic regions across the EU. The conservation status of a species within the relevant biogeographic region within a Member State should be important information to be used when considering a derogation. However, an appropriate assessment of the impact of a specific derogation will in many cases, if not most, have to be at a lower level than the biogeographic region in order to be meaningful in ecological terms. A useful level in this regard could be the (local) population. The wording of Article 16, which points to "populations of the species concerned", confirms this interpretation".

In the second paragraph of the quote above, the EU Commission appears to link the word

"concerned"

in the FCS test to the population at local level to be affected by the licensable activity. As already noted, this interpretation may explain NE's approach at paragraphs 11 and 12 above.

With the greatest respect to the European Commission and (if my suggestion above as to NE's interpretation is correct) to NE, I am not at all convinced that it is correct to read the word

"concerned"

as a reference to the specific site-based / local population affected by the licensable activity. The meaning of the word "concerned" here is in my view important to the correct interpretation of the FCS test.

The word

"concerned"

in the FCS test can equally be read as referring to the relevant species affected by the derogation (

"the species concerned"

If read in this way, the FCS test is making no comment on the specific population level (site, local, regional, national or biogeographic) which must form the basis of the assessment of impact of the licensable activity and whose favourable conservation status must be maintained. It is simply saying that the populations (with the relevant level (undefined)) of whatever species is / are affected by the licensable activity must be maintained at favourable conservation status in their natural range.

This interpretation is, in my view, consistent with the definition of favourable conservation status for species under Article 1(i) of the Habitats Directive. In this definition the word "concerned" is used twice, in both cases clearly referring to the species (i.e. the "species concerned"), not to populations. I believe that this interpretation is also consistent with the inclusion of the wording in the FCS test of 

"in their natural range"

which clearly links back to the Article 1(i) definition.This interpretation is also consistent with the approach adopted by Defra's Guidance on the Environmental Damage (Prevention and Remediation) Regulations 2009 (EDR) which, until very recently, implemented the Environmental Liability Directive

Even though the focus of the Environmental Liability Directive and the Habitats Directive is different, both regimes offer protection to EPS and some of the language in the Environmental Liability Directive and the Habitats Directive is similar, so comparisons in implementation in certain respects are likely to be justifiable. Specifically, both Regulation 53(9)(b) of the Conservation of Habitats and Species Regulations 2010 and the EDR refer to an assessment of impact on favourable conservation status of species (even though the relevant threshold of damage is expressed differently under each regime).

Defra's EDR Guidance states (paragraph A1.30) that the relevant range for the purpose of assessing conservation status and impacts on conservation status for the purpose of the EDR is generally at member state level. It justifies this (A1.30) by reference to the reporting under Article 17 of the Habitats Directive and other guidance under the Habitats Directive. It says that these sources indicate that the range should generally be taken to be at the member state level. A1.32 states that "depending on the features of the species or habitat, the relevant range may be the whole of the UK (e.g. great crested newt) or it may be only part of the UK (e.g. stag beetle)" (note that the stag beetle is not an EPS).

If the interpretation presented in paragraph 19 above were correct, there could potentially be more flexibility in identifying appropriate compensatory measures to meet the FCS test when Article 16 derogations (i.e. EPS licences) are sought. This is because, based on this interpretation, there is no specific legal requirement for the assessment of the impacts of the licensable activity to be made at the site / local population level (and indeed the way the European Commission guidance referred to at paragraph 16 is phrased would suggest that this is also their view

"A useful level in this regard..."

The legal requirement is, rather, to consider the impact of the licensable activity on 

"the populations"

(level undefined) of the species affected by the licensable activity. Impacts on the local population may well be relevant but, importantly, the analysis would not always have to be focused on this. A Member State would have flexibility to identify in any case how the impacts of the derogation on

"the populations"

of the specific species affected is to be judged and how then compensatory habitat measures are to be designed. It may well be possible for a Member State to consider the impacts at a

"higher than site population level"

and for compensatory habitat requirements then to be similarly assessed. This may particularly be the case where there is evidence (as appears to be the case for great crested newts in England, see above, Beebee 2015) that a purely site-based compensation approach is not succeeding. The European Commission refers to the term

"population"

as meaning

"a group of individuals of the same species that live in a geographic area at the same time and are (potentially) interbreeding, i.e. having a common gene pool"

(page 60 of EU Commission's 2007 Guidance). A "higher than site population level" approach to assessment of impacts and delivery of compensatory habitat measures is likely, in some cases at least, still to allow the Commission's meaning of

"population"

to be respected.There is also no requirement under the FCS test that every individual EPS specimen is protected from harm. The FCS test instead focuses on "the populations". Therefore, taking great crested newts as an example, it is in my view not correct to assume that every licensable activity must be accompanied by a compensatory measures strategy which must include exclusion and translocation of the animals from the site of impact. A particular licensable activity could potentially lawfully benefit from the EPS Article 16 derogation where there is a risk of harm to a small number of individuals of an EPS but where compensatory measures are still taken to maintain the populations (of the relevant species) at a favourable conservation status in their natural range.

Following this interpretation of the FCS test, there could, in particular for EPS where the efficacy of the site-based approach is in question, be a reduced focus on site-based provision of compensatory measures for the particular animals affected by a licensable activity. Licensing authorities could potentially instead lawfully grant a licence to permit activities which risked harm to, for example, a small number of great crested newts through destruction of habitat on the basis that the licence holder cooperated with other licence holders, land owners or conservation bodies to create a great crested newt stronghold in the wider locality, although not at the site of impact.

Conclusions

The approach adopted at least in England to date (see paragraphs 11 and 12 above) could perhaps be regarded as representing the safest possible approach to implementing the FCS test. By seeking to ensure a status quo, i.e. that the EPS present at the site of impact are, wherever possible, saved from any harm (in particular through exclusion and translocation) and provided with compensatory habitat at that location, the UK could not easily be criticised for non-compliance, as long as the approach actually worked, i.e. the licences granted were not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range. The irony is that, despite this approach, it seems (see above, Beebee 2015) that there is doubt that this approach is securing the

"no detriment"

outcome that is intended and legally required.My concern therefore is that the approach adopted at present, in England at least, does not reflect the flexibility which the FCS test, in my respectful view, may well offer and ultimately (despite the best of intentions) may be failing the species it is intended to protect.

I would very much hope that Defra, NE and the European Commission could discuss the issues I have raised in more detail and come to a common view as to an appropriate approach.