Section
Four:
Protection,
Management and Development of Specific Parts of Nature and Landscapes
Article
22 Designation as a Protected Area
(1) The
Federal Laender shall provide that parts and components of nature and
landscapes may be designated as:
1. Naturschutzgebiet (‘nature
conservation area’), Nationalpark (‘national park’), Biosphärenreservat
(‘biosphere reserve’), Landschaftsschutzgebiet (‘landscape
protection area’), Naturpark (‘nature park’), or
2. Naturdenkmal (‘natural monument’), or geschützter Landschaftsbestandteil (‘protected landscape component’).
(2) Such
designation (Schutzerklärung) shall be based on a description of the
area or object to be protected, including the protection purpose (Schutzzweck),
the orders and prohibitions to be complied with to reach the protection
purpose, and, where necessary, the respective management, development and
restoration measures, or contain the necessary empowerments. Protected areas
referred to in paragraph 1 no 1 above may be divided into zones classified in
line with the respective protection purpose; the surrounding area needed for
the protection of the respective area or object may be included.
(3) The
Federal Laender shall in particular lay down rules and regulations on:
1. interim protection of parts and components
of nature and landscapes;
2. registration of protected parts and
components of nature and landscapes secured as well as those under interim
protection;
3. marking of the protected parts and
components of nature and landscapes.
(4) The
individual Federal Laender may lay down differing rules and regulations for
their respective Biosphärenreservate (‘biosphere reserves’) and Naturparke
(‘nature parks’). Designation of an area as a Nationalpark (‘national
park’) is subject to consultation with the Federal Ministry for the
Environment, Nature Conservation and Nuclear Safety, and the Federal Ministry
of Transport, Housing and Construction (Bundesministerium für Verkehr, Bau-
und Wohnungswesen).
Article
23
Naturschutzgebiete (‘nature conservation areas’)
(1) Naturschutzgebiete
(‘nature conservation areas’) are areas designated on a legally binding basis
as areas requiring special protection with regard to nature and landscape as a
whole or with regard to components thereof
1. in order to preserve, develop or restore
biotopes or biocoenoses of certain species of wild fauna and flora,
2. for scientific reasons, for reasons relating
to natural history or national heritage, or 3. because of their rarity,
specifically characteristic features or outstanding beauty.
(2) Any
activity or act that may lead to the destruction of, damage to, or alterations
of a Naturschutzgebiet (‘nature conservation area’) or components
thereof, or which may induce any lasting disturbance or disruption, shall be
prohibited, in conformity with more specific rules and regulations. Naturschutzgebiete
(‘nature conservation areas’) may be open to general access where this is
compatible with their protection purpose (Schutzzweck).
Article
24 Nationalparke (‘national parks’)
(1) Nationalparke
(‘national parks’) are areas designated on a legally binding basis as areas to
be protected on a uniform basis that meet the following criteria:
1. The area concerned is an entity of major
size with specifically characteristic features;
2. the criteria defined for Naturschutzgebiete
(‘nature conservation areas’) are met in the greater part of the area, and
3. the greater part of the area concerned is
in a status characterized by no or little human impact; or the area concerned
is suitable for developing/ being developed into a state which safeguards
undisturbed ecosystemary interactions and their natural dynamic processes to
the extent possible.
(2) The aim
of Nationalparke (‘national parks’) is to safeguard, in the greater part
of the area concerned, undisturbed ecosystemary interactions and their natural
dynamic processes to the extent possible. Where and to the extent to which this
is compatible with the protection purpose (Schutzzweck), Nationalparke
should also serve the purposes of scientific monitoring and surveillance,
education in the field of natural history, biology and related subjects, as
well as enable the general public to experience nature.
(3) The
Federal Laender shall ensure that Nationalparke receive the same level
of protection as that afforded to Naturschutzgebiete (‘nature
conservation areas’), taking into account their particular protection purpose (Schutzzweck)
and allowing for exemptions required in view of the size of the area and its
human settlements.
Article
25 Biosphärenreservate (‘biosphere reserves’)
(1) Biosphärenreservate
(‘biosphere reserves’) are areas designated on a legally binding basis as areas
to be protected and developed on a uniform basis, that meet the following
criteria:
1.
The area concerned is of major size and shows the characteristic features of
specific landscape types,
2. the criteria defined for Naturschutzgebiete
(‘nature conservation areas’) are met in essential parts of the area concerned,
and the greater part of the remaining area meets the criteria defined for Landschaftsschutzgebiete
(‘landscape protection areas’),
3. the area serves the primary purpose of
preserving, developing or restoring landscape shaped by traditional, diverse
forms of use, along with its historically evolved diversity of species and
biotopes, including wild forms and formerly cultivated forms of commercially
used or usable animal and plant species, and
4. the area concerned serves as a model for
the development, practical application and testing of particularly sustainable
cultivation and management methods, taking account of vulnerable natural
resources.
(2) The
Federal Laender shall ensure that biosphere reserves are developed
progressively via core zones, management zones and development zones (Kernzonen,
Pflegezonen, Entwicklungszonen), while allowing for the exemptions required
in view of the size of the area and existing human settlements in the area, and
that biosphere reserves receive the same level of protection as that afforded
to Naturschutzgebiete (‘nature conservation areas’) or Landschaftsschutzgebiete
(‘landscape protection areas’).
Article 26 Landschaftsschutzgebiete (‘landscape protection areas’)
(1) Landschaftsschutzgebiete
(‘landscape protection areas’) are areas designated on a legally binding basis
that require special protection with regard to nature and landscape
1. in order to maintain, develop or restore
the functioning of the ecosystem and its services, or the regenerative
capacity and sustained usability of natural assets, or
2. in view of the diversity, characteristic
features and beauty of their natural scenery or because of the particular
historical and cultural significance of the area concerned and its landscape or
3. in view of the area’s special significance
for human recreation.
(2) Giving
particular attention to Article 5 paragraph 1, and in conformity with more specific
rules and regulations, any activities or acts that may change the character of
the area concerned, or any activities or acts that are incompatible with the
specific protection purpose (Schutzzweck), shall be prohibited.
Article
27 Naturparke (‘nature parks’)
(1) Naturparke
(‘nature parks’) are areas to be developed and managed on a uniform basis hat
meet the following criteria:
1.
The area concerned is an entity of major size.
2. The area consists mainly of
Landschaftsschutzgebiete (‘landscape protection areas’) and/ or Naturschutzgebiete
(‘nature conservation areas’).
3. The area is particularly suitable for human
recreation because of its landscape assets, and sustainable forms of tourism
are striven for.
4. The area has been destined for recreation in
accordance with the requirements of spatial planning.
5. The designated area serves the
preservation, development or restoration of a landscape shaped by a diversity
of different uses, as well as of the diversity of its species and biotopes, and
to this end, it is endeavoured to implement the sustainable use of land in
this area.
6. The area is particularly well-suited to
promote sustainable regional development.
(2) ‘Nature
parks’ shall be planned, structured, developed and improved in accordance with
their purposes outlined in paragraph (1) above, taking account of the aims and
principles of nature conservation and landscape management.
Article
28 Naturdenkmale (‘natural monuments’)
(1)
Naturdenkmale (‘natural monuments’) are individual creations of nature or
corresponding areas of up to 5 ha, designated on a legally binding basis and
requiring special protection:
1. for scientific reasons or reasons related to
natural history or national heritage
2. because of their rarity, their characteristic
features or their outstanding beauty.
(2) The
removal of a ‘natural monument’, as well as any activities or acts that may
induce the destruction of, damage to, or changes to the natural monument, shall
be prohibited in conformity with more specific rules and regulations.
Article 29
Geschützte Landschaftsbestandteile
(‘protected components of landscapes’)
(1)
Geschützte Landschaftsbestandteile (‘protected components of landscapes’) are
parts of nature and landscapes designated as protected components of nature and
landscapes on a legally binding basis, that require special protection for the
following reasons:
1. to maintain, develop or restore the
functioning of the ecosystem and its services,
2. to enliven, structure, or maintain the scenery
of a local community or landscape
3. to ward off any adverse impacts, or
4. because of their significance as habitats,
sites or living quarters of certain wild species of fauna and flora.
In certain
areas this protection may extend to the entire stocks of trees along roads,
single rows of trees, individual trees, hedgerows or other landscape
components.
(2) The
removal of protected components of landscapes, as well as any activities or
acts that may induce destruction of, damage to, or changes to ‘protected
components of landscapes’, shall be prohibited in conformity with more
specific rules and regulations. Any exemption shall only be admissible if the
acts or activities referred to are carried out for imperative reasons of
traffic safety, provided that it was not possible to successfully conduct other
measures to improve traffic safety. Where existing stocks are reduced in
expanse or number, the Laender may rule that they shall be substituted where
and to the extent to which this is appropriate, adequate and reasonable.
Article
30
Legally Protected Biotopes
(1) The
Federal Laender shall regulate the prohibition of measures that may lead to the
destruction or any other significant or lasting adverse impact on the following
biotopes:
1. Natural, near-natural or semi-natural zones
of flowing and stagnant inland waters, including their banks and shores and the
relevant natural or semi-natural littoral vegetation, as well as their natural
or seminatural silt-up and aggradation areas, bayous and periodically swept
flood plains.
2. Bogs, fens and mires, swamps, reeds, wet
meadows with abundant communities of sedges and rushes, headwater areas, and
inland habitats of halobionts and halophilous organisms.
3. Open inland dunes, open natural boulder,
scree or rubble slopes, clay and loess walls, shrublet, broom and juniper
heathlands, mat-grass communities (Nardus grasslands), xeric grasslands,
Calaminarian grasslands, wood- and shrubland of dry and warm locations.
4. Fenwoods, marshy and alluvial woodland,
forest stands of ravines as well as of boulder or rubble and scree slopes.
5. Open rock formations, alpine grasslands,
little perma-snow valleys and dwarf pine shrubland of alpine regions. 6. Rocky shores and cliffs, coastal
dunes, spits or barrier beaches, coastal lakes, sea inlets (Bodden coast) with
aggradation areas, salt meadows and tidal mud flats in the coastal region,
Zostera mats and other marine macrophyte populations, reefs, sublittoral
sandbanks in the Baltic Sea as well as gravel, coarse sand and shell areas with
a large variety of species in the marine and coastal zones.
The Federal
Laender may rule that specific other biotopes shall be deemed equivalent to
those listed in the first sentence above. They shall take appropriate measures
to safeguard the spatial extent and the ecological features of the biotopes
concerned.
(2) The
Federal Laender may grant exceptions if adverse impacts on the biotopes can be
offset or if the measures concerned are necessary for reasons of overriding public
interest. The Federal Laender may also grant exceptions in the event a biotope
within the scope of paragraph 1 has developed during the period covered by
contractual arrangement or participation in public programmes on utilization
restrictions. The provisions of Article 34 shall be observed.
Article
31
Protection of Waters and Littoral Zones
The Federal
Laender shall ensure that surface waters, including their littoral zones and
strips of vegetation cover alongside water courses, are preserved as habitats
and sites for native species of fauna and flora and are further developed in
such a way that they are able to fulfill their extensive interlinking functions
to ensure connectivity and permeability on a lasting basis.
Article
32
The European “Natura 2000” Network
Articles 32
to 38 serve the implementation of the establishment and protection of the
European ecological network “Natura 2000”, in particular the protection of
Sites of Community Importance and European Bird Sanctuaries. The Federal Laender
shall meet their obligations under Council Directives 92/43/EEC and 79/409/EEC,
in particular by laying down rules and regulations in conformity with Articles
33, 34, 35 first sentence no 2, and Article 37 paragraphs 2 and 3, of this Act.
Article
33 Protected Areas
(1) The
Federal Laender shall select the sites to be proposed to the EU Commission
pursuant to Article 4 paragraph 1 of Council Directive 92/43/EEC and Article 4
paragraphs 1 and 2 of Council Directive 79/409/EEC, in accordance with the criteria
specified therein. In this process, the Federal Laender shall consult with the
Federal Ministry for the Environment, Nature Conservation and Nuclear Safety;
the Federal Ministry for the Environment, Nature Conservation and Nuclear
Safety on its part shall involve the other Federal ministries concerned in view
of their specific subject-related portfolio. The Federal Ministry for the
Environment, Nature Conservation and Nuclear Safety shall notify the selected
sites to the EU Commission. At the same time the Ministry shall provide the EU
Commission with estimates of the Community co-financing needed to enable
compliance with Article 6 paragraph 1 of Council Directive 92/43/EEC, including
compensatory payments to farmers.
(2) The
Federal Laender shall designate the sites entered in the list of sites of
Community importance in accordance with Article 4 paragraph 4 of Council
Directive 92/43/EEC, and European Bird Sanctuaries, in line with the respective
conservation objectives (Erhaltungsziele), as protected parts of nature
and landscapes as laid down in Article 22 paragraph 1 of this Act.
(3) The
‘protection declaration’ (Schutzerklärung) shall set out the protection
purpose (Schutzzweck) in accordance with the conservation objectives (Erhaltungsziele)
for the site concerned, as well as the necessary site boundary definitions.
The declaration shall also set out whether any priority biotopes or priority
species are to be protected. It shall be ensured through appropriate orders
and prohibitions as well as management and development measures that the
requirements of Article 6 of Council Directive 92/43/EEC are met. More
stringent or more extensive protection provisions shall remain unaffected.
(4) The
requirement of placing under protection as set forth in paragraphs 2 and 3 may
be waived if equivalent protection is guaranteed by other legal provisions,
administrative provisions, powers of disposal held by a public or non-profit
body or agency, or by contractual arrangements.
(5) Once a
site has been published pursuant to Article 10 paragraph 6, any plans and
projects, measures, changes, disturbances or disruptions that may result in
significant adverse effects on parts or components of the site that are of a
critical interest for the conservation objectives concerned, shall be
inadmissible
1. in a site of Community importance, in
the interim period until formal legal protection of the site,
2. in a European Bird Sanctuary,
subject to any special conservation regulations laid down in accordance with Article
22 paragraph 2 of this Act.
In concertation
sites, any activities or acts referred to in the first sentence of this
paragraph shall be inadmissible, where such activity or act could result in
significant adverse impacts on any priority biotope or priority
species in the site concerned.
Article
34
Impact Assessment, Inadmissible Projects, Exemptions
(1) Before
approving or carrying out a project, its compatibility with the conservation
objectives (Erhaltungsziele) of a site of Community importance or a
European bird sanctuary shall be assessed. In the case of protected areas
pursuant to Article 22 paragraph 1, the compatibility criteria shall derive
from the protection purpose (Schutzzweck) and the provisions laid down
in this context.
(2) If the
assessment shows that the project may give rise to significant adverse effects
on a site referred to in paragraph 1 above, affecting the components of the
site that are of a critical interest for relevant conservation objectives (Erhaltungsziele)
or the protection purpose (Schutzzweck) concerned, the project shall be
deemed inadmissible.
(3) Any
project may only be approved or carried out in derogation of paragraph 2 above
1. if this project is necessary for imperative
reasons of overriding public interest, including those of a social or economic
nature , and
2. if there are no other reasonable
alternatives for achieving the project’s purpose at a different location
without any or with less serious adverse effects.
(4) If the
site affected by the project contains priority biotopes or hosts priority
species, the only imperative reasons of overriding public interest eligible
are reasons relating to human health, public safety – including national
defence and protection of the civilian population –, or the project’s
beneficial consequences of primary importance for the environment. Other
reasons within the meaning of paragraph 3 no 1 are only eligible for
consideration if the competent authority has obtained a relevant prior opinion
from the EU Commission, via the Federal Ministry for the Environment, Nature
Conservation and Nuclear Safety.
(5) If a
project under paragraph 3 above, also in conjunction with paragraph 4 above, is
to be approved or carried out, the necessary measures to safeguard coherence of
the “Natura 2000” European ecological network shall be provided for. The
competent authority shall inform the EU Commission, via the Federal Ministry
for the Environment, Nature Conservation and Nuclear Safety, of the measures
taken.
Article
35 Plans
Article 34
shall be applicable mutatis mutandis in connection with
1. the determination of routes (Linienbestimmungen)
pursuant to Article 16 of the Federal Highways Act (Bundesfernstraßengesetz),
Article 13 of the Federal Waterways Act (Bundeswasserstraßengesetz), or
Article 2 paragraph 1 of the Act on Acceleration of Traffic Infrastructure
Planning (Verkehrswegeplanungsbeschleunigungsgesetz), as well as
2. other plans; in the case of spatial/
regional planning schemes (Raumordnungspläne) as referred to in Article
3 no 7 of the Federal Regional Planning Act (Raumordnungsgesetz): with
the exception of Article 34 paragraph 1, first sentence.
Article 34
paragraph 1, second sentence and paragraphs 2 to 5 shall be applicable mutatis
mutandis to ‘building master plans’ (Bauleitpläne) and municipal
bye-laws (Satzungen) under Article 34 paragraph 4, first sentence no 3
of the Federal Building Code (Baugesetzbuch).
Article
36
Impacts from Emissions
If a
facility subject to approval under the Federal Immission Control Act is
expected to emanate emissions that, also in combination with other facilities
or measures, will in the area affected by the facility have significant
adverse impacts on a Site of Community Importance or on a European Bird
Sanctuary, affecting components of this site that are of a critical interest
for the respective conservation objectives (Erhaltungsziele) or the
protection purpose (Schutzzweck), and if these adverse impacts cannot be
compensated for in accordance with Article 19 paragraph 2, this shall be deemed
to preclude the approval of the facility unless the prerequisites specified in
Article 34 paragraph 3 in conjunction with paragraph 4 have been met. Article
34 paragraphs 1 and 5 shall apply mutatis mutandis. Relevant decisions
shall be made in consultation with the authorities responsible for nature
conservation and landscape management.
Article
37
Relationship to Other Legal Provisions
(1) Article
34 shall not apply to projects under Article 29 of the Federal Building Code in
areas with development plans (Bebauungspläne) under Article 30 of the
Federal Building Code and during the plan proposal procedure (Planaufstellung)
under Article 33 of the Federal Building Code. The applicability of Article 34
shall not be affected in the case of projects inside built-up community areas
as referred to in Article 34 of the Federal Building Code, in the case of
projects outside of built-up community areas under Article 35 of the Federal
Building Code and where Bebauungspläne (development plans) substitute
relevant Planfeststellungsverfahren (plan establishment procedures).
(2) Articles
34 and 36 shall only be applicable to protected parts of nature and landscapes,
and to biotopes (natural habitat types) protected under Article 30, in so far
as relevant protection provisions, including provisions relating to exceptions
and exemptions, do not provide more stringent project-related approval criteria.
Obligations pursuant to Article 34 paragraph 4, second sentence, regarding EU
Commission involvement, and pursuant to Article 34 paragraph 5, second
sentence, regarding notification of the EU Commission, however, remain
unaffected.
(3) Where
projects involve interventions in nature and landscape any rules and
regulations laid down by the Federal Laender within the framework of Article
19, as well as Articles 20 and 21, shall remain unaffected.
Article
38
Protected Marine Areas in the Exclusive Economic Zone and on the Continental
Shelf
(1) Within
the framework of the provisions of the United Nations Convention on the Law of
the Sea of 10 December 1982 (Federal Law Gazette 1994 II, page 1799), the
provisions of Articles 33 und 34 shall be applied mutatis mutandis to
the protection of marine areas in the region of the Exclusive Economic Zone and
the continental shelf, subject to the following reservations (nos 1 – 5):
1. Restrictions to air traffic, shipping,
military uses permitted under international law and scientific marine research
projects pursuant to Article 246 paragraph 3 of the United Nations Convention
on the Law of the Sea, are not admissible. Article 211 paragraph 6a of the
United Nations Convention on the Law of the Sea and other provisions under
international law that relate to shipping remain unaffected.
2. The reasons for refusing scientific marine
research projects in conformity with Article 246 paragraph 5 of the United
Nations Convention on the Law of the Sea remain unaffected, taking account of
the Act on Scientific Marine Research (Gesetz über die Durchführung
wissenschaftlicher Meeresforschung) of 6 June 1995 (Federal Law Gazette I,
pages 778, 785), last amended by Article 24 of the Act of 15 December 2001
(Federal Law Gazette I, page 3762).
3. Restrictions to fishing are only admissible
in conformity with the law of the European Communities and in accordance with
the provisions of the Marine Fishing Act (Seefischereigesetz) in the
version promulgated on 6 July 1998 (Federal Law Gazette I, page 1791), last
amended by Article 209 of the Ordinance of 29 October 2001 (Federal Law Gazette
I, page 2785).
4. Restrictions on the laying of undersea
cables and pipelines are only admissible in compliance with Article 34 and in
conformity with Article 56 paragraph 3 in conjunction with Article 79 of the
United Nations Convention on the Law of the Sea.
5. Restrictions on the generation of power
from water, current and wind and on the prospecting and extraction of mineral
resources are only admissible in accordance with Article 34.
(2) Within
the context of paragraph 1 above, the Federal Agency for Nature Conservation
shall perform the tasks resulting from the establishment and protection of the
European “Natura 2000” network. The first sentence shall not apply to the tasks
arising from Article 34 nor to the designation of areas as ‘protected parts of
nature and landscape’ referred to in paragraph 3 of this Article. Protected
marine areas shall be selected with the involvement of the general public and
subject to the consent of the Federal Ministry for the Environment, Nature Conservation
and Nuclear Safety. The Federal Ministry for the Environment, Nature
Conservation and Nuclear Safety shall involve the Federal Ministries concerned
in view of their specific subject-related portfolio and shall arrange for
consultation with the riparian Federal Laender to reach agreement.
(3) Within
the context of paragraphs 1 and 2 above the designation of areas as protected
parts of nature and landscape pursuant to Article 33 paragraph 2 shall be
implemented by the Federal Ministry for the Environment, Nature Conservation
and Nuclear Safety, with the involvement of the Federal Ministries concerned
in view of their specific subject-related portfolio, by way of an Ordinance
(Rechtsverordnung) not requiring the consent of the Bundesrat.