The Federal Nature Protection Act in Germany

By Jochen Schumacher und Christoph Palme (Institut für Naturschutz und Naturschutzrecht Tübingen)

On 4-3-2002 the revised Federal Nature Protection Act (BNatSchG) [1] went into effect. In the following, a survey of the structure and amendments of the BNatSchG shall be presented.

In the German legal system, the BNatSchG is pivotal as an instrument for the protection of nature, though there are other laws pertinent to the protection of nature, such as the Federal Regional Planning Act, the Federal Building and Zoning Code, the Federal Forestry Act, the Federal Soil Protection Act, the Environmental Impact Assessment Act, and the Federal Species Protection Decree.

The Federal Nature Protection Act – a Framework

According to Art. 75 I (3) of the German Constitution, the legislative powers for enacting laws protecting nature lies at the federal level, but it is limited to framework provisions. Thus, if the BNatSchG is to be neutral with respect to the sections mentioned in  § 11 1, this code does not have direct effect, but has to be implemented by state legislation. Direct effect according to § 11 1 is granted, for instance, for the rules concerning species protection, the FFH directive and the penal law.

The states must convert those guidelines into their respective law systems by 4-4-2005. Although they enjoy certain discretion in implementation, their obligation of loyalty to the federation forbids them from altering the basic intention of the federal legislative powers.

Structure and content of the BNatSchG

The BNatSchG 2002 consists of 10 sections.

The first section (§§ 1 to 11) contains general guidelines regarding the goals and principles of protecting nature, the obligation for developing a habitat linkage, the relation between protecting nature and agriculture, forestry and fishery, and the respective purviews of the implementing authorities.  Furthermore, in § 10 the leading concepts of the law protecting nature are legally defined.

The following four sections contain rules facilitating the implementation of the above mentioned nature protection goals. These guidelines pertain to environmental observation, landscape planning (section 2, §§ 12 to 17), rules governing operations encroaching upon nature (section 3, §§ 18 to 21), area conservation, including the implementation of the goals laid down by European law as the FFH directive, and the directive for the protection of birds (section 4, §§ 22 – 38) and rules governing species protection (section 5, §§ 39 – 55).

The remaining sections contain rules on recreation in the natural landscape (section 6, §§ 56 – 57), the involvement of societies in nature protection (section 7, §§ 58 – 61), supplementary rules (section 8, §§ 62 – 64), fines and penal law (section 9, §§ 65 bis 68) and final clauses (section 10, §§ 69 bis 71).

Revisions and Amendments in the Federal Nature Protection Act

Goals and Principles of Protecting Nature and the Landscape (§§ 1 and 2 BNatSchG)

The goals and principles spell out what protecting nature and the landscape are meant to be and what their point is from the public perspective. They represent the pivotal cornestone for the interpretation of the following sections, the elimination of loopholes, the balancing out and control of decisions, as well as discretionary limits^[2].

Through amendment, the goal of § 1 BNatSchG was widened. For the first time nature shall not only be protected for anthropocentric reasons, but also for its  own worth and with respect to the responsibility of future generations. Besides the conservation, care and development of nature and landscape, its  restitution is also an objective. The efficiency and functioning of the natural ecosystem must also be retained.

In the same vein the principles laid down in § 2 were set out in more detail. In this way the protection of soil against erosion, climate protection, securing of biodiversity, reduction of land consumption and over-development through the concentration of construction projects, securing of appropriate recreational areas[3]  and the preservation of the European network “natura 2000” were established as basic principles.

For the implementation of measures protecting nature and landscape, communication between concerned persons and the interested public must now to be guaranteed early on. Reciprocally, the obligation of agencies affected is to accept opinions expressed on the measure under consideration, and to give them their due respect. Thus this rule shall lead to an increased acceptance of measures planned for the protection of nature and landscape.

Habitat linkage  (§ 3 BNatSchG)

Newly incorporated is a requirement to construct an interstate habitat linkage which shall comprise at least 10 % of each state’s surface. This measure seeks a sustainable preservation of native species and plants, their biospheres and communities, as well as preservation, restitution and development of functioning ecological interaction. By that the separation of biotopes shall be reduced and an exchange between natural entities and genera be facilitated. Despite being a new instrument, the habitat linkage shall be achieved via the already existing means of nature protection. Part of this network may be national parks, FFH areas, protected zones, biotopes in a statutory protection, sanctuaries or parts of the respective sites as well as further areas and elements, provided they qualify from the perspective of biological science[4] for habitat linkage. In order to warrant a sustainable habitat linkage, all involved areas have to be secured legally to that end. That may be achieved through designation as protected areas, through landscape planning, long-term schemes for contract-based nature protection or other appropriate measures.

Relation between nature protection and agriculture, forestry and fishery (§ 5 BNatSchG); “good agricultural practice”

In the past, qualified requirements for so-called “good agricultural practice” was only part of the respective special codes. So for instance there were detailed rules regarding the use of pesticides, for soil protection or fertilizer, but not for the protection of nature. The old nature protection act presumed that “good agricultural practice” as conducted by the farmers usually complied with the goals of nature protection, a presumption which was more than doubtful given the highly detrimental impact of industrialised agriculture on natural resources. That was why the relation between agriculture and nature protection was explicitly revised by § 5 BNatSchG. The new law now spells out in detail that “good agricultural practice” has to be in line with the aims of protecting nature and the environment. In this way agriculture has to comply with the exigencies of the respective location and ensure sustainable fertility  and usefulnes of the soil. Avoidable interference with existing biotopes is prohibited. In the same vein linear and punctual features of the landscape (edge structures like hedges, field marges and stepping stone biotopes) necessary for the habitat linkage are to be retained and increased in number, if not achieving the minimum number required by law. Livestock has to be in appropriate relation to the respective location, detrimental environmenal impact must be avoided. In slopes prone to erosion, flood areas, locations with high ground water table and swamps, the destruction of green spaces is prohibited.

Natural productive land usage (soil, water, flora, fauna) shall not extend beyond the scope necessary to attain sustainable yield. Utilisation of fertilisers and pesticides has to be recorded painstakingly. In forestry, native woods shall be built up and be logged in a sustainable way. Also forestry has to ensure an appropriate portion of native plants.

The existing expanded compensation for restraints in using productive land (§ 3b BNatSchG old edition) was replaced by a general framework rule according to which restraints and gains in agriculture, forestry and fishery exceeding “good agricultural practice” may be compensated by the states.

Environmental education (§ 6 Abs. 3 BNatSchG)

For the first time ever the states have the obligation through the amended BNatSchG to adopt provisions requiring professionals commissioned to vocational and general education and information dispersal for the realisation of the significance of nature protection as well as the dissemination of information on the tasks associated with the protection of nature. In this way the population shall be encouraged to be responsible in dealing with nature.

Public domain areas (§ 7 BNatSchG)

The potential for the protection of nature in areas of public property or public possessions shall be more exploited by the newly introduced § 7 BNatSchG. Hence, public ownership is under special obligation to consider the goals and principles of nature protection and landscape care while cultivating public property. From the perspective of nature protection, especially valuable areas may not be altered in any way, if alteration has a detrimental effect. Given the plethora of areas in the public domain, this means a high potential for nature protection works, provided a strict implementation of § 7 BNatSchG is achieved.

Environmental monitoring (§ 12 BNatSchG)

Also new is the obligation to monitor the ecological health of the environment. This task has to be discharged by both the federation and the states under their respective purview. They must assist each other. Their measures for implementing environmental monitoring must be well-suited to the task. In this way the state of the biosphere and its changes, the consequences of such changes, their effects on the biosphere and the effects of environmental protection measures shall be realised, calculated and valuated. On the basis of knowledge yielded by this monitoring, negative developments shall be counteracted in a timely and target-setting way.

Landscape planning (§ 13 ff. BNatSchG)

Also amended were the regulations dealing with landscape planning, of which the task is to present and justify the requirements and measures of nature protection and landscape care for the respective space. As part of provisionary nature protection, landscape planning in the future must fundamentally be fashioned in a way spanning all areas. Furthermore, agencies are required to extrapolate landscape planning permanently so that the latest data are always at their disposal. In designing the plans, all substantial minimum exigencies provided in § 14 must be met. The specific landscape plans undertaken must also be considered in other planning or administrative proceedings. They especially have to be consulted in conducting environmental impact assessments or FFH compatibility controls (§ 34 I). Administrative decisions departing from implemented landscape plans must be justified.

Encroachment rule (§ 18 ff. BNatSchG)

In order to prevent steady deterioration of nature and landscape, the BNatSchG in §§ 18 ff contains provisions by which avoidable impact on nature is prohibited, and unavoidable impact requires compensation. In this regard, an impact is considered “restored” if and as soon as the impaired functions of natural balance are restored and the landscape is restored in a way compatible with the respective location. An impact is “in other ways compensated” if and as soon as the impaired functions of natural balance are replaced in an equivalent way, or the landscape is newly fashioned in a way compatible with the respective location. The amended encroachment rule now also comprises encroachments leading to relevant changes in living soils connected with the ground water table. In making the administrative decision on granting permission for encroachment, restoration and replacement measures are reviewed in the same procedure. Restoration measures have a higher priority than replacement measures. For biospheres of strictly protected species and plants, the weighing up rule is tightened. The states now have the obligation to enact provisions to secure restoration and replacement measures (e.g. land register). Given the poorly implemented measures of compensation to date (see  Meyhöfer 2000), this rule is urgently needed. Furthermore, the states now have to enact provisions for the counting of compensation measures (e.g. area pools and eco accounting rules).

Designation as protected areas (§ 22 ff. BNatSchG)

It is possible in Germany to identify areas and objects for protection that are relevant to nature conservation. For providing protection, the following instruments are available: nature reserve, national park, biosphere reserve, landscape reserve, nature park, natural monument or protected landscape. In the future, the development (and, if need be, also in restitution) of areas will have higher priority than before. In this way anthropogenically influenced areas can also be designated as a nature reserve or national park. Prerequisite is that it is possible to develop the area in a way that in the target stage it meets the criteria of being “in a condition  not or nearly not influenced by human beings.” This amendment now secures the idea of sheltered process and the principle of development in a legally binding way. Furthermore, vicinity protection and the possibilty of zoning protected areas are introduced, taking up standards already held by the judiciary. Biosphere reserves now must more closely comply with the IUCN criteria, which provide for uniform protection via central districts, care districts and development districts.

Statutory protection of habitats (§ 30 BNatSchG)

A host of habitats in Germany have the status for enjoying statutory protection, which means that no additional protection decree needs to be implemented. With the amendment of the BNatSchG, more kinds of these legally protected habitats were incorporated. This is especially true for coastal areas, seas and lakes, including their banks. These areas are now much more accounted for than before. The significance of stretches of water was additionally underscored by the newly amended § 32, requiring the states to make sure that those areas be conserved
“including shores and banks as biospheres for native species and plants and be extrapolated in a way that they can sustainably fulfil their networking functions for large areas.”

Natura 2000 (§§ 32 ff. BNatSchG)

The old §§ 19b to 19f BNatSchG 98 were inserted unaltered into the new §§ 32 ff[5]. The well known transformation defaults of the FFH directive in German law were not done away with. The EC Commission in this respect spelled out several items (Commission of the european Community 2000), referring among others to the restriction of the project concept by the BNatSchG, the scope of the compatibility assessment and the compensation measures of the FFH-directive (vgl. Fisahn 2001). By this law, the federal government still has to face legal action on grounds of deficient enforcement of the guidelines.

Protection of sea areas in the exclusive economic zones and on the continental shelf (§ 38 BNatSchG)

Through § 38, the amended version also governs the protection of sea areas in the exclusively assigned zones (the coastal area stretching between 12 and 200 sea miles into the sea) and on the continental shelf. By this, the possibility to designate European protection areas (FFH and bird protection reserve) was created. Furthermore, the designation of appropriate priority areas for exploiting wind power, including the construction of so called “offshore wind parks.” The sea facilities decree was amended with the insertion of additional means for the denial of permission to build off-shore wind power facilities, if they endanger bird migration; the construction of such facilities now requires an environmental impact assessment.

Species protection (§ 39 ff. BNatSchG)

Section Five contains regulations on the protection and care of species and plants living in the wild. In order to ward off the dangers of native species and plant alienation through the spread of non-native species and plants, the regulation governing the introduction of non-native species and plants was tightened. The federal department of environment is granted the authority to restrain or prohibit the possession and cultivation of certain non-native species that might present a danger to native species living in the wild, if it is necessary for species protection. By § 51 the EU directive on the possession of wild animals in zoos (RL 1999/22/EG, “Zoo-directive”) will be transformed in German law, thereby requiring the states to integrate the European goals into their respective state law. By insertion of § 53 governing power lines into the new BNatSchG, the federal government accounts for the fact that to date these lines have caused the death of thousands of large birds. In order to prevent this problem in the future, existing media voltage masts must within the next 10 years be safeguarded against voltage strikes. Newly built facilities are to be  constructed in a way preventing such danger, though there won´t be the obligation for marking the lines, and thus the danger of death through voltage strikes will continue to exist[6].

Involvement and participation by recognised environmental societies, society action (§§ 58 ff. BNatSchG)

The amended law now introduces the right of societies to take legal action at the federal level (§ 58; formerly legal action was taken by an association), leaving it to the states to legislate the details. The participation rights are granted to legal entities by the federal department of environment, nature protection and nuclear safety, pursuant to § 29 old version and § 59. If recognised under § 60 these societies have the right of participation in proceedings pursuant to § 58 section 1, No. 2 and 3 carried out by the states in case those societies are affected in their purview, § 58 section 3 i.v.m. § 60. The substance of their participation position is the right to express opinion and to obtain information on the respective professional opinions. These statutes regulate legal actions of the above mentioned societies against the decisions of federal departments, exclusively leaving no leeway for the states to introduce additional litigation.

Conclusion

The Federal Nature Protection Act was updated through amendment. It contains numerous modifications and innovations aiming at more effective protection of species and the biosphere. As a legal framework, it needs to be implemented by the states. It remains to be seen how the states will assume their constitutional obligation of implementation.

References

Europäische Kommission (2000): Ersuchen der Kommission vom 5.4.2000, Verfahren Nr. 98/4993, abgedruckt in: NuR 2000, 602.

Fisahn, A. (2001): Defizite bei der Umsetzung der FFH-RL durch das BNatSchG. ZUR 12, (4), 252-256.

Jedicke, E. (1994): Biotopverbund. Verlag Eugen Ulmer, Stuttgart, 2. Aufl.

Meyhöfer, T. (2000): Ausgleich und Ersatz in Bebauungsplänen - Umsatzdefizite, Ursachen und Lösungswege. Naturschutz Landschaftsplanung 32, (11), 325-328.

OVG Lüneburg (1999): Urteil vom 22. Februar 1999 - 3 K 2630/98. In: Meßerschmidt, K.; Schumacher, J.: Bundesnaturschutzrecht/Entscheidungssammlung zum Naturschutzrecht (Loseblatt), BNatSchG § 14, Nr. 2.

Schumacher, A. (2002):

Schumacher, A.; Schumacher, J. (2002): Kommentierung zu § 3 Biotopverbund. In: Schumacher, J.; Fischer-Hüftle, P.: Bundesnaturschutzgesetz – Kommentar. Kohlhammer-Verlag, Stuttgart (i.Vorb.).

Schumacher, J. (2002): Mitwirkungs- und Beteiligungsrechte anerkannter Umweltverbände, Vereinsklage nach dem novellierten Bundesnaturschutzgesetz. Naturschutz Landschaftsplanung 34, (7).

 

Ass. jur. Jochen Schumacher

Dr. jur. Christoph Palme

Institut für Naturschutz und Naturschutzrecht Tübingen

jochen.schumacher@naturschutzrecht.net

christoph.palme@naturschutzrecht.net