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    General

    BwN alternatives should not only be appealing and effective, but also fit into existing regulations. The regulation a BwN project runs into is usually meant to safeguard important values in society, for example, proprietary rights, biodiversity, human safety and so on.

    This chapter informs on how to scan regulations and deal with emerging regulatory barriers. The content of the various sections can be summarized as follows:

    • The section General (this page) offers a general perspective on the structure of regulatory systems and the role of perceptions of regulations in project development processes. 
    • The section Guidance discusses the scanning of and dealing with regulatory barriers. Backward mapping from the required approvals and permits provides a view on the legal procedures and assessments which ultimately lead to approval or rejection. It is crucial for BwN-developers to know how decision-making is framed with regard to authorities, procedures and applied standards. The EU Birds and Habitats Directives is used as example.
    • The section Examples elaborates how a BwN developer can make use of existing regulations, using the EU Birds and Habitats Directives as an example. The real-life examples illustrate the complexity and the challenges to be handled.
    • The section References presents references to more detailed reading.

    Structure of regulatory systems

    Preparing and executing projects is normally done by the executive power; the legislative and juridical powers are the contextual powers in this system.

    For further reading on some basic notions, click the link structure of the regulatory systems for an overview of legal systems and how BwN-relevant legal decisions such as conditioned approval (a permit) are embedded in this system.

    In the context of applicable constitutional and administrative legislation, multiple primary and secondary legislations, informal regulations (also called pseudo-regulation) and sometimes case law (verdict of a court on how to interpret rules) can be relevant and need to be scanned.

    Most of the guidance presented herein is based on a study of the EU Birds and Habitats Directives, which aim at conservation of all species of naturally occurring birds in the wild state and natural habitats of wild flora and fauna in the European territory of the member states. Nonetheless, the observations made, conclusions drawn and guidance presented are also relevant to other international (non-EU) situations, where other relations are applicable. 

    BwN is therefore confronted with a large number of rules and standards at various levels. Three characteristics make scanning this regulatory context a demanding task:

    • Even if a BwN-initiative is of a local nature, multi-level regulations will apply.
    • BwN-alternatives often serve multiple interests, but primary and secondary regulations are often organized by sector. Inter-sector coordination and integration are often organized by rather procedural secondary ( if not informal) regulations.
    • Procedures (when, what, how) can be as important as content.

    Well-known additional bottlenecks with regards to regulatory context are:

    • Vague regulations
    • Conflicting and overlapping regulations
    • Unspecified regulations
    • Interpretation of regulations

    Furthermore, as the text box suggests, regulations may well reflect paradigms and perspectives of the past, which makes it difficult for innovative approaches like BwN to fit in. For example, the static short-term perspectives often found in nature conservation regulations seem to (but not necessarily do) contradict the dynamic long-term approach advocated by BwN.

    How do different perceptions of regulations influence the process?

    It is important for a BwN-developer to realize that regulations, which in the beginning are often viewed as barriers for development, may just as well be opportunities for development. Usually, this is a matter of perception.  In practice a developer will tend to feel constrained by regulations rather than favoured by them. Different perceptions of regulations lead to different strategies to deal with them:

    1. If a developer perceives regulations as barriers, he/she could try to remove them by striving to have legislation revised according to BwN principles – this is a long-term strategy that requires examples of BwN attempts in the current regulatory setting.
    2. If a developer perceives regulations as opportunities, he/she could try to make optimum use of them – this is a short-term strategy of working with the legislation in a pro-active manner.

    BwN requires a change of a developer's perspective from perceiving regulations as barriers to perceiving them as opportunities. An example of the EU Birds and Habitats Directives, which form the legal basis for Natura 2000 network of protected areas, will be used to illustrate the challenges of regulations as well as possible schemes to handle them.

    The application of the EU Environmental Directives by the member states, regional authorities and project developers has not always been successful. In particular, the Birds and Habitats Directives have created many negative feelings when they were called upon in national courts and a lot of projects were delayed or cancelled (see Nature and Biodiversity cases). Hence the Birds and Habitats Directives constitute perhaps one of the biggest perceived challenges for BwN in the European Union member states. Yet, there are several reasons to (try and) perceive these Directives as opportunities instead of barriers:

    • the EU policy process is well known for its inability to effect radical change. Much EU policy and decision making (including Natura 2000) displays a deep gradualism and incrementalism. It is just not possible to initiate bold new plans and significant departures from the status quo and expect them to be accepted by all member states without being modified significantly;
    • Initial lack of attention, knowledge and awareness of the requirements of the Birds and Habitats Directives has been overcome as practical experience and case law increased;
    • Guidance documents published by the European Commission (European Commission, 2011, 2012) encourage BwN in estuaries and coastal zones, port development and inland navigation;
    • Case studies and BwN pilot projects show that BwN-type developments are possible within the existing regulatory framework;
    • The study of BwN feasibility in local arenas show that outside protected areas BwN is more difficult to pursue, as there is no necessity to take the ecological system into account as much as in habitat areas (also see under Networks Guidance, lesson learned 5, adaptive use of pro BwN arguments);
    • In cases where funding for ecological project-components is limited, environmental regulations could serve to ‘push’ for a BwN-approach as a means to live up to environmental obligations (e.g. the goals of Natura 2000).

    Guidance

    In this section we provide guidance on how to map and monitor the legal salience of BwN and how to handle (perceptions of) regulations strategically in order to seize regulatory opportunities and handle regulatory obstacles. The section is structured along the following lines:

    • How to get grip on applicable regulations and concrete requirements?
    • How and where to find or create ‘space for BwN’ in existing regulations/legislation, if it is not (yet) there?
    • Do’s and don’ts

    How to deal with regulations in practice?

    A developer should monitor closely whether alternatives developed fit into the prevailing legislation and regulations. The check on legislation and regulations includes obligatory approval procedures (Permits and licenses), applicable formal and informal regulations, and a Planning system. Seen from a project perspective, the regulatory system determines how decisions will be taken, which procedures are in place and which standards will be applied to this case. In most legal systems, applicable standards can be found in primary and secondary laws and informal regulations on issues such as air quality of air, water and subsurface quality, the use of resources and other economic activities, among which constructing and operating infrastructures. Especially relevant are the procedures involved and the assessments required, such as nature tests, multi-criteria analysis on costs and benefits and Environmental Impact Assessments.

    Whether and to what extent supra-national regulations are relevant varies by country and situation. For instance, membership of supra-national organizations, conventions and treaties is of relevance. On the International level one could think of the London, Ospar, Helcom and Barcelona Conventions, all dealing with marine protection, or the Basel Convention on export of hazardous waste, or the Ramsar Convention on wetland protection, or the EU-legislation. Some supra-national regulations can be of direct relevance to local projects and alternatives and thus for BwN-developers. Sometimes such regulations first have to be integrated in national legislation before they become legally binding.

    Scans of regulations take time and require some expertise in this field. One might consider outsourcing this task to a capable and trustworthy specialist, or let such a person give a second opinion. For the Birds and Habitats Directives, such a scan could include:

    • Identification of Natura 2000 areas designated in or around the proposed project site (maps of Natura 2000 are available at the Ministry responsible), in order to assess whether the corresponding regulations are applicable.
    • Conservation objectives, conservation measures and management plans (if available) for these areas (usually found in national designation document of the responsible Ministry);
    • National, federal or regional legislation implementing the Habitats Directive (in particular the crucial Article 6) in the Member State;
    • The authority which is to approve the project; this authority may also provide further advice on how to proceeding the project in this particular area;
    • Case law and recent studies on Natura 2000 can provide useful insights and lessons learned.
    • Link to administrative courts and participatory arrangements in the country concerned.

    Awareness of case law can provide more precise guidance, as it gives insight into the interpretation of legislation in specific situations. In addition, documents such as explanatory memoranda are usually available for every piece of primary and secondary law, explaining intentions and goals. Sometimes additional guidance is issued later on, for instance the guidance document of the European Commission (European Commission, 2011). Such documents clarify how national primary or secondary legislation, for instance on water quality, should be implemented in a specific region. Further guidance may be available in handbooks and manuals.

    How and where to find or create ‘space for BwN’ in existing regulations/legislation?

     “You have to learn the rules of the game. And then you have to play better than anyone else.” Albert Einstein

    1- Talk with the authorities

    The actual implementation of regulations by the authorities responsible and the effect on development practice is not always evident from the text of the regulation only. Therefore it is advisable to consult the authorities in charge of specific regulations and discuss whether their interpretation is correct and complete, and whether creative options can be found to navigate the regulatory obstacles. It may also help to draw on the experience of reputed experts.

    The culture of permitting and the formal and informal regulatory setting differ strongly by region. Some countries have ‘perfect’ regulatory settings but hardly any implementation; other counties have flexible or irrelevant regulations that leave huge discretionary room to the authorities, but also include a high risk of arbitrary decisions.

    2- Identify formal requirements

     A scan of regulations will give a general idea of regulatory environment and perceived regulatory risks and opportunities. The actual texts of regulations could provide an initial idea of the requirements that BwN initiative has to meet. Obtaining this information could be outsourced to a consulting specialist or done by seeking contact with authorities. See the example of Birds and Habitats Directives

    3- Adjust and fit BwN design

    Once formal requirements and their practical implications are clear, possibilities can be sought to adjust and fit the BwN design to this regulatory context. Below we elaborate the possibilities of adjusting and fitting a BwN design to the requirements of the EU Birds and Habitats Directives; for other regulations similar procedures can be followed.

    Once the regulation scan has identified Natura 2000 areas in or around the proposed project location, there are at least two possibilities to fit a BwN design into the corresponding regulatory requirements.

    The first possibility is in the pre-screening phase of a project, when BwN can be helpful to exclude significant adverse effects on the Natura 2000 area. The following questions may be helpful at this stage:

    1. Can we adjust the BwN design so that it contributes to the Natura 2000 conservation objectives?
    2. Can we make our BwN initiative beneficial tor the management of Natura 2000 sites?
    3. Can we split the BwN design and realise it in separate stages (sub-projects), while keeping in mind the cumulative effect on Natura 2000?
    4. Can we upscale or downscale the BwN initiative in order to safeguard overall coherence of the Natura 2000 network?

    An outcome of such adjustments could be a BwN design that supports the favourable conservation status of the protected habitats and species. If this is the case, the chances of its approval by administrative court in case of appeal increase (see case Veluwe Randmeren).

    The second possibility can be used if adjustments in the pre-screening phase fail to produce a design that excludes significant negative effects. This may be the case for intrusive developments of overriding economic interest (e.g. fairway deepening, port development). In the absence of alternative solutions, possibilities could be explored to realise BwN principles alongside or as part of a compensation plan. The added value of BwN here may be that it generates local stakeholder support and/or creates new possibilities for spatial development. It may also provide a platform for cooperative interaction among stakeholders and prevent frustrations and legal fights later on in the process, as long as such interaction starts at the moment it becomes clear that compensation is unavoidable. The following questions may be helpful at this stage:

    1. What are the possibilities for BwN as part of the compensation plan?
    2. Can we adjust the BwN design to benefit local stakeholders' interests?
    3. Can we use BwN to facilitate cooperative interaction among stakeholders?

    The flow chart below shows the main steps in decision-making in Natura 2000 protected areas according to art. 6 of the Habitats Directive. Examples of two possibilities of BwN intervention are indicated on the flow chart and elaborated in more detail in the next chapter.

    As referred to before, for other pieces of legislation the feasibility assessment can be done in a more or less similar manner. If a piece of legislation requires an Environmental Impact Assessment, or another kind of nature assessment, or a multi-criteria assessment, it is obvious that analogue reasoning can be used to assess whether BwN fits in.

    Do's and Don'ts

    To make a coastal development project successful in an ecologically sensitive area an BwN manager and/or project administration is advised to:

    • Keep track of the latest legislative developments, case law, available guidance documents and recommendations; for BwN projects this can include multiple sectorial regulations (e.g. spatial planning, water management, marine policy).
    • Be aware of the required information and data for applications and approvals; for BwN projects this can include multiple sectorial procedures (spatial planning, water management, environment) - integral procedures covering all interests will rarely be applicable. 
    • Anticipate the regulatory trajectory at an early stage and take this into account as requirements for further project development. 
    • Keep track of the multiple procedures that often have to be completed before a positive outcome can been reached. Forgetting and/or ignoring (parts of) procedures can lead to project delays or even termination.
    • Anticipate the kind of legal requirements that could eventually come into play in case of legal appeal and the actors (stakeholders) who could potentially initiate the appeal (see Networks Guidance, step 3).
    • Do not ignore the difference between hard rules and soft rules. Hard regulations should always be complied with and imply that a certain decision is inevitable; the soft regulations leave some room to adapt to the situation.
    • Make use of discretionary room if available, for instance to judge whether information and data in a procedure is sufficient.
    • Keep in mind that there is also something that can be called the 'regulatory game'. In nature assessments, for instance, the exact criteria have to be agreed upon and settled early in the process. Actively participating in this may ultimately favour the BwN-approach.

    Assessment of the legal viability of a BwN initiative is a recurring activity, the scope can vary from a first-order reconnaissance up to a very detailed assessment.

    • Hand in adequate information required by the regulatory procedure. Handing over great data does not help if the required information is not provided. If the requirements of a procedure are not precisely known, for instance regarding the information that has to be delivered, it is advisable to clarify this first and then proceed with the investigation.
    • Draw on previous experience in the working area with regard to applicable regulations. Assessment of expected ecological effects always comes with uncertainty. Sometimes more research can reduce uncertainty, but if phenomena or effects are unpredictable, even cutting-edge research does not help. In the Dutch context, assessment of effects after a zoning plan had been approved by a municipal council and a permit had been issued for construction works is evidence of inappropriate decision-making as ruled by the Dutch  Administrative court (see court ruling in the example Zeewolde Harderwijk). For more info about handling uncertainty see Knowledge Guidance.
    • Be aware that the complete BwN design is presented in procedures, for instance approvals and permitting. Monitoring tends to be considered in a later stage, but the facilities and activities involved also need approval and permitting. Ignoring this will lead to unforeseen repairs and thus to unnecessary delay and additional costs.

    Lessons learned with regard to specifically the EU habitats / species regulation and the appropriate assessment procedure:

    • In general for areas with a special conservation status the overall positive ecological effects on protected species and habitats shall exceed the (temporary) negative effects of the project measures (i.e. land reclamation), in line with the goals in the area. A well-founded case must be delivered, with explicit reference to the conservation objectives of the area. 
    • The assessment of ecological effects at pre-screening stage (see diagram: pre-screening and BwN design) must emphasise the BwN idea of a project, i.e. the fact that its measures do not threaten the favourable conservation status of habitats / species, or even support their recovery and/or improvement. The purpose of a pre-assessment stage is to investigate the possibility of significant negative effect and determine whether appropriate assessment would be needed. If significant effect could be avoided with the help of BwN design at this stage, the project can proceed, but should be consistent in the use of terminology and avoid terms like ‘appropriate assessment’ and ‘compensation’, which come at a later stage. If there is a chance of significant negative effect, the project should proceed with an appropriate assessment (see diagram: Art. 6.3 Appropriate assessment) or further according to Art. 6.4 with alternatives assessment, compensation plan and IROPI statement. 
    • If the pre-screening convincingly rules out significant effects or demonstrates that they are negligible, an appropriate assessment procedure is not necessary, even when a project implies the loss of Natura 2000 area (example project Zeewolde, see Examples). Otherwise, an appropriate assessment procedure should be carried out. This procedure is often outsourced to a specialized consultant. More information on what it entails can be found in the Methodological Guidance, European Commission, 2001.

    If Natura 2000 or comparable regulations are applicable, plans or projects should always be based on mutually beneficial strategies according to the ‘working with nature’ concept’ (see Guidance document European Commission, 2011).

    Examples

    Comparison Zeewolde and Harderwijk projects, the Netherlands

    The Veluwe Randmeren, i.e. the shallow lakes between the polder Flevoland and the mainland of the province of Gelderland, were designated as a protected area under the Birds and Habitats Directives in 2000 and 2003 (see Figure). Conservation objectives for Veluwe Randmeren were finalized in 2007. Two coastal developments took place in this area. The one in Harderwijk included the relocation of an old industrial area, improvement of recreation and housing facilities, and strengthening the natural and water functions. The one in Zeewolde – on the other side of the lake – envisaged a park zone, two beaches, an island with recreational facilities connected to the shore by a bridge or a dam, and a row of islands that would create an open lagoon area between the islands and the shore.

    Both municipalities argued that a loss of Natura 2000 protected area (8.5 ha in Harderwijk and 10 ha in Zeewolde) had no significant effect on the integrity of the relevant Natura 2000 site. Both authorities took into account the requirements of Habitat assessment, have argued that an appropriate assessment was not necessary and seemed to have integrated nature into their design. However, there was a slight difference on how they have done it, which eventually led the Supreme Dutch Administrative Court to reject the Harderwijk development in 2008 and approve the Zeewolde development in 2009:

    • The successful design was adjusted to Natura 2000 conservation objectives of the Veluwe Randmeren and contributed to achieving these objectives

    The municipality of Zeewolde maintained that a permanent loss of 10 hectares of sanctuary and forage area for birds does not threaten the favourable conservation status, since the coastal lagoon, parts of which have shallow water, will support the recovery or even improve the habitat of the protected species.

    • The unsuccessful design tried to create new habitat to neutralize the loss of the existing one

    The municipality of Harderwijk argued that the loss of 8.5 hectares of habitat and forage areas can be neutralized by the creation of a green zone and nature-friendly areas, which would be suitable as new habitat for birds, fish and mussels, while the transformation of a nearby area of pastureland into marshes would make the area attractive for water- and grassland birds and create a water retention area.

    • The successful development had a well-organized administration

    The municipality of Zeewolde administratively separated coastal development from residential area development and carried out residential development first. This step-by-step approach allowed for the rapid realization of the coastal zone project. The overall design of the coastal zone plan did not undergo any major changes, and in the short time span of development no significant legislative changes occurred. Early de-coupling of residential interests shifted attention towards the more prominent role of nature in coastal development and a more tailor-made design.

    • The unsuccessful design failed to provide solid scientific (ecological) argumentation

    The new habitat creation proposed by Harderwijk was just a collection of existing nature development initiatives in the area. With no consistent nature development plan in mind, authorities also failed to provide solid scientific argumentation that no adverse effects were to be expected. Instead, they tried to investigate the ecological effects to the depth of the available knowledge. In a successful project, on the other hand, BwN design indirectly contributed to the actors’ confidence in their own project design and their certainty in the provided scientific underpinning (Zeewolde). The comparison of these two projects illustrates that the actors’ interpretation of when exactly the required level of certainty is reached is an important factor for implementation sucess. The interpretation of scientific data can be further strengthened by the following factors: consistent use of terminology (appropriate assessment or not), actors’ prior experience and the exact wording of reports, conclusions and the interpretation thereof by the Court.

    Further reading on Lessons learned from Zeewolde Harderwijk comparison

    Kruibeke, Bazel, Rupelmonde flood control area, Flanders (Belgium)

    In 1988 the polders of Kruibeke, Bazel and Rupelmonde were designated a special protection area (SPA) under the EU Birds Directive and in 1996 they were designated a special area of conservation (SAC) under the EU Habitats Directive (see Figure). However, the practical implications of these designations only became clear after another project, viz. the construction of a new tidal dock on the left bank of the river Scheldt (the Deurganck Dock) had been implemented.

    Although Deurganck Dock received a lot of public and professional attention, the 35-year history of its compensation project – the Kruibeke, Bazel and Rupelmonde flood control area – is more interesting from a BwN-perspective. It illustrates how the actors’ learning strategies gradually broadened the project goals from flood defence to nature, the development of Antwerp harbour, and the goals of local stakeholders. Partly as a result of the involvement of Natura 2000, the project evolved towards a BwN-type design which balanced the conflicting interests of the past.

    A chronological analysis reveals that projects implemented predominantly for economic benefit (Deurganck Dock) are confronted with the environmental requirements of Natura 2000. At the same time, local flood defence projects (Kruibeke flood control area) are accorded with low political priority. At the European level, workable approaches are sought to address the accumulated misunderstanding of the Birds and Habitats Directives by industry and the resulting case law. Placing ecological goals at the start of the planning process, as envisaged in BwN, could balance the previously conflicting interests and result in designs which are acceptable to most stakeholders. The BwN- approach can help the authorities to avoid conflicts of interests and speed up project implementation, provided that it is applied from early on in the planning and decision-making process. 

    Further reading on Lessons learned from Kruibeke, Bazel, Rupelmonde.

    References

    Literature

    Lulofs K., Smit M. en Vikolainen V. (2011) ‘Innovatie op de grens van Land en Water: Bouwen met de Natuur’, Water Governance, Vol. 1, No. 2, pp. 36-43

    Vikolainen V., Bressers J.T.A. and Lulofs K. (2011) ‘Management aspects of Building with Nature projects in the context of EU Bird and Habitats Directives’, Environmental Engineering and Management Journal, Vol. 10, Nr. 11, pp. 1675-1686

    Vikolainen, V., Bressers J.T.A. and Lulofs K. (2012) ‘Implementing EU Natura 2000 at the project level: lessons from the Veluwe Border lakes in the Netherlands’, Public Administration, DOI: 10.1111/j.1467-9299.2011.01971.x

    Vikolainen, V., Bressers J.T.A. and Lulofs K. (2012) 'The role of Natura 2000 and project design in implementing flood defence projects in the Scheldt estuary', Journal of Environmental Planning and Management, DOI:10.1080/09640568.2012.724014

    Vikolainen V.,  Bressers J.T.A. and Lulofs K. (forthcoming) The transfer of Building with Nature approach in the context of EU Natura 2000, In: C. de Boer, J. Vinke-de Kruijf, G. Özerol and J.T.A. Bressers (Eds.) Water Governance, Policy and Knowledge Transfer. International Studies on Contextual Water Management, Earthscan – Routledge

    Beunen R., van der Knaap W.G.M. and Biesbroek G.R. (2009) ‘Implementation and Integration of EU Environmental Directives. Experiences from the Netherlands’, Environmental Policy and Governance, 19, pp. 57-69

    Bovens M. and K. Yesilkagit (2010) ‘The EU as Lawmaker: the Impact of EU Directives on National Regulation in the Netherlands’, Public Administration, 88, 1, 57-74

    Internet

    Broekmeyer M.E.A., Griffioen A.J. and Kamphorst D.A. (2008) Vergunningverlening Natuurbeschermingsrecht. Een overzicht van aanvragen en besluiten art. 19d Natuurbeschermingswet 1998 sinds 1 oktober 2005 tot 31 Juli 2008. Alterra-rapport 1748. Wageningen: Alterra

    COUNCIL DIRECTIVE 92/43/EEC on the conservation of natural habitats and of wild fauna and flora

    DIRECTIVE 2009/147/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the conservation of wild birds

    Eric Van Hooydonk (2006) The impact of EU Environmental Law on Waterways and Ports

    European Comminities (2006) Nature and Biodiversity Cases. Ruling of the European Court of Justice

    European Commission (2001) Methodological guidance on the provisions of Article 6(3) and (4) of the Habitats Directive 92/43/EEC

    European Commission (2011) Guidelines on the implementation of the Birds- and Habitats Directives in estuaries and coastal zones; with particular attention to port development and dredging. Luxembourg: Office for Official Publications of the European Communities.

    European Commission (2012) Guidance document on sustainable inland waterway development and management in the context of the EU Birds and Habitats Directives

    IMI - Institute for Infrastructure, Environment and Innovation

    Zonneveld, W., Trip J. J. and B. Waterhout (2008) Impact van EU-regelgeving op de Nederlandse ruimtelijke ordeningspraktijk; Vijf voorbeelden van gebiedsontwikkeling. Onderzoeksinstituut OTB, TU Delft.

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