Managing human interventions in nature and landscape

Rules of intervention under nature conservation law

Every mining activity is associated with interventions in nature and landscape and can result in serious environmental impacts. Compensatory actions, such as compensatory or substitution measures according to the Federal Nature Conservation Act (BNatSchG) are intended to compensate for interventions in nature and landscape and to restore or replace their impaired functions. Only if real compensation is not possible, compensatory payments are to be made, provided that the nature conservation interests are of secondary importance. The compensatory payment shall be earmarked for nature conservation and landscape conservation measures.

Overall, it is estimated that just over 1% of Germany’s entire area will be necessary to ensure the country’s natural resources in the medium and long term. On the last key date of 31 December 2022, according to the Federal Office of Statistics approx. 1,340 km², i. e. approx. 0.375% of the area of Germany is used as mining land.¹ In the last 30 years or so, the amount of land required for quarrying in Germany has therefore decreased by over 28% (538 km²). The equivalent in area for the volume of natural resources used in 2022 was just over 28 km². In relation to the total area of Germany (357,582 km²), this results in a temporary land requirement of approx. 0.008% of the country’s area for 2022.² The areas used for the extraction of natural resources are concentrated in different regions, which means that there are significant differences in how strong the different regions are affected by the impacts on nature and landscape.

Legal framework

The Federal Mining Act (BBergG) requires the mining operator to take the necessary precautions to reclaim the surface to the extent required by the circumstances (Section 55 (1)(7) BBergG). The term “reclaiming” means proper shaping of the surface used by the mining operation, considering the public interest (Section 4 (4) BBergG). This term covers all activities required for recultivation, without the status quo ante having to be achieved. Within the scope of the obligation under mining law to rehabilitate the area, the obligation that simultaneously exists under nature conservation law to compensate for interventions in nature (Section 13 BNatSchG) may have already been met in the individual case – depending on type and scope of the measures taken for this purpose.³

The Federal Nature Conservation Act (BNatSchG) establishes the general principle that major interventions in nature and landscape are to be primarily avoided and minimised by the polluter (avoidance obligation). Unavoidable interventions are to be compensated by means of compensatory or substitution measures (hereinafter “compensatory measures”) or, if this is not possible, by a compensatory payment in money (Section 13 BNatSchG). It is not possible to deviate from this general principle and the ensuing legal consequences (first the avoidance, then compensatory measures and, as a last resort, a compensatory payment). In the case of mining measures, the avoidance rule primarily targets a variant that is as environmentally friendly as possible. Unavoidable interventions in nature and landscape must therefore be offset or mitigated, particularly through the promotion of natural succession, renaturation, near-natural design, rehabilitation, or recultivation (Section 1 (5) p. 4 BNatSchG). Interventions are avoidable if there are reasonable alternatives to achieving the purpose of the intervention in the same place, without or with less impairment of nature and landscape (Section 15 BNatSchG).

Compensatory measures must be maintained and legally secured during the required period. The period of maintenance is determined by the approval authority in the certificate of approval. The perpetrator of the intervention (the polluter) or its legal successor is responsible for the execution, maintenance and safeguarding of the compensatory measures.

In accordance with German federal and European regulations, the possible effects of a project on particularly protected species of animals and plants (special species protection legislation) and on the European protected area network NATURA 2000 is one of the aspects that must be examined in the approval procedures for nature conservation law interventions.

The BNatSchG contains a full regulation, viz. that the laws and norms of the Federal States on the instrumental design of the intervention regulation may not contradict it. To make the regulation more applicable, some Federal States have made supplementary regulations, whereby the practice differs from Federal State to Federal State. For example, the concrete assessment of the amount and the use of compensatory payments differ from Federal State to Federal State. As different biotope type lists are used at Federal State level, the Federal Government produces conversion keys that allow the respective biotope types to be counted.⁴

The Federal Compensation Ordinance (BKompV) provides specific details of the rules of intervention intended under nature conservation law for projects in the area for which the Federal Administration is responsible. It covers public infrastructure projects (e. g. power lines and pipelines, offshore wind farms, waterway projects and usually also Federal autobahns). The objective of BKompV is to standardise the rules of intervention under nature conservation law across all Federal States and make them both more transparent and more effective. Different regulations continue to apply in some countries.⁵

Approval practices in the extraction of natural resources

If a company plans to intervene in nature and landscape by extracting natural resources, the rules of intervention under nature conservation law are examined at the level of the responsible approval authority. Different laws may apply depending on the natural resource extracted. This depends on which authorities are responsible in a Federal State. A nature conservation authority may be responsible for the extraction of mineral resources that are not subject to mining law or water law (The nature conservation legislation of many federal states includes specific procedures for extraction e.g. in Saxony-Anhalt⁶). In addition, the mining authorities of the Federal States (in the case of free-to-mine and privately-owned mineral resources or underground extraction) or the Federal State authorities responsible for enforcing the state excavation laws, the building and water management laws or the Federal Immission Control Act (in the case of so-called landowners’ natural resources) may also be involved.⁷ This procedure corresponds to the “piggyback procedure”: The rules of intervention are always examined within the framework of the notification and approval procedure under the specific legislation, without separate administration proceedings. The nature conservation authorities must be involved, and they will give their opinion as nature conservation experts. The responsible approval authority then grants the authorisation taking account of the opinion in “consultation” with the responsible nature conservation authorities (Section 17(1) BNatSchG).⁸ The responsible approval authority, which makes the decision on the legal consequences of the intervention, is here not bound by the opinion of the nature conservation authorities that go beyond the legal requirements of the nature conservation laws and the recognised professional standards in nature and species conservation.

It is allowed to differ from these on objective grounds. It is compulsory to comply with the provisions of the specific species protection independently of the rules of intervention. Statutory biotope protection, national and European area protection, like special species protection, are nature conservation concerns that are independent of the intervention regulation and must be dealt with separately.

In the approval procedure, the entrepreneur shall provide a nature conservation expert opinion to the competent authority, in which the contents are processed in accordance with Section 17(4) sentence 1 BNatSchG.  A Landscape Management Plan (LBP) for example provides information on the location, nature, extent, and timing of the intervention, as well as the intended avoidance and compensatory measures and, where required, the amount of the compensatory payment. In this case, a major part of the necessary compensation is to be regularly provided for renaturation or recultivation (see target definition in Section 1(5) sentence 4 BNatSchG).

Compensatory measures on external surfaces are necessary, for example, if certain landscape or biotope structures at the place of intervention cannot be restored in the same way, if the time that has elapsed between the damage and renaturation is too long or if specific measures are necessary for reasons of biotope protection, protection area or species protection.⁹

In the case of the extraction of the so-called “free-to-mine” (e. g. coal, salts, oil, and natural gas) and privately-owned natural resources (e.g. quarried natural resources, and industrial minerals) governed by the German Federal Mining Act (BBergG), the intervention regulation is processed as per the BNatSchG in accordance with the operating plan procedure under mining law, whereby the obligations as per the BNatSchG apply in full. Compensation for interventions can in general already take place within the scope of the obligation under mining law to rehabilitate the area (Section 55(1) no. 7 BBergG, Section 1(5) sentence 4 BNatSchG). If this is not possible, compensatory and/or substitution measures or subordinated compensatory payments pursuant to BNatSchG are necessary (see North Rhine-Westphalia (NRW) example below). In the case of procedures which are subject to the Federal Mining Act (BBergG), the legal instruments of the Federal Mining Act are applied, such as (and in particular) regular monitoring based on the main operating plans, which must be submitted and re-approved every two years.

Documentation of compensatory measures for interventions in nature and landscape

Since the amendment of the BNatschG in 2010, German Federal States are obliged to create compensation directories for all interventions in nature. However, these take various forms and are not publicly available in all Federal States.

Example of the transparency of compensation directories in Baden-Wuerttemberg¹⁰

The basis for the compensation directory in Baden-Wuerttemberg is formed by Section 17(6) of the BNatSchG and Section 18 of NatSchG BW, the compensation directory regulation (KompVzVO) and the eco-account regulation (ÖKVO) of the State, which provide for the obligation to make documentation available for the public. The latter two regulations can be downloaded from the website of the Baden-Wuerttemberg State Law:

• Compensation Directory Regulation (KompVzVO)
  https://www.landesrecht-bw.de/bsbw/document/jlr-KompVerzVBWrahmen

• Eco-Account Regulation (ÖKVO)
  https://www.landesrecht-bw.de/bsbw/document/jlr-%C3%96koKVBWrahmen

The Baden-Württemberg compensatory register is divided into the sections “eco-account” and “impact compensation”.

An eco-account is an instrument for the perpetrators of interventions (polluters). It enables them to decouple compensation measures temporally and spatially from the extraction site, making the measures more flexible to manage. Compensatory measures can be stockpiled via so-called “eco-points”, which are accumulated by means of the targeted enhancement of external areas through nature conservation. The corresponding eco-points can be allocated for later interventions to compensate for the interventions either in whole or in part.¹¹ Polluters such as natural resource companies and local authorities are involved here as bodies of measures, consumers, and traders of eco-points.

A central overview of the total number of all interventions in Baden-Wuerttemberg, including their compensatory measures, is not available; however, the legal environmental protection eco-account measures and the compensatory measures already assigned to an intervention under nature conservation law can be accessed via the Internet sites of the responsible nature conservation sub-authorities at city and county levels (https://www. lubw.baden-wuerttemberg.de/natur-und-landschaft/ oeffentliches-verzeichnis-abteilung-oekokonto).

There, you can view the following information on the nature conservation compensatory measures of the districts:

• description of the approval authority and the compensatory measure (brief description),
• file number and date of the approval certificate,
• type of project causing the intervention,
• project developer,
• location of the compensation area,
• measures for the timely implementation of the compensatory measure and the fixed period of maintenance,
• state of the implementation.

The following information on eco-account measures can also be accessed:

• complex of measures,
• status,
• natural area,
• location of the measure,
• eco-points.

Compensatory measures on intervention areas and substitute areas are documented in the compensation directory of the Federal State of Baden-Wuerttemberg. Measures taken since April 2011 have been listed. At present work is proceeding with updating KompVzVO. In future, compensatory measures under building planning law within the meaning of Section 1a (3) and 200a BauGB are also to be included, if they are carried out outside the impact area of the development plan, in a spatially separate partial area of application of the impact development plan, in the area of application of a compensatory development plan, on areas provided by the municipality outside the impact development plan or on areas in another municipality (Section 18 (2) NatSchG BW). In addition, Natura 2000 and species protection-related measures are to be recorded. It is intended that this will provide greater transparency and make it easier to verify these measures.

Besides, impairments of Natura 2000 sites below the significance threshold should also be recorded to better determine possible summation effects (as documented in the so-called summation register), cf. Section 18 (3) NatSchG BW.

Example of the assessment of compensatory payments in North-Rhine-Westphalia (NRW) ¹²

According to Section 15 (6) BNatSchG, in the case of an authorised intervention the polluter can make a payment as an Ultima Ratio if negative impacts on nature are unavoidable, or if they cannot be compensated or replaced within a reasonable period. The compensatory payment is based on the average costs of the non-feasible compensation measures, including the necessary average costs for their planning and maintenance, as well as the provision of the area, which encompasses personnel and other administrative costs. If these costs cannot be ascertained, the compensatory payment is based on the duration and severity of the intervention, considering the advantages accruing to the polluter (Section 15(6) sentence 1 et seq. BNatSchG).

The assessment of the amounts of compensatory payment is the exception rather than the rule in the approval of the activities of the extractive industry in North Rhine-Westphalia. Nevertheless, there are cases in which, for example, a major part of the compensation takes place in recultivation, but a small computational, compensation deficit still must be implemented on an external area, or the assessment of the compensation through rehabilitation will not be appropriate. If the area in question or the required measure is unavailable or can neither be implemented nor is expedient at a reasonable cost, a relevant compensatory payment is assessed. In North Rhine-Westphalia, this assessment is made in accordance with the provisions of the State-level Nature Conservation Law (LNatSchG NRW) in consultation with the nature conservation authorities of the same administrative level (Section 33 (1), LNatSchG NRW).

The recipient of the compensation payment is the district or town/city in which the intervention is carried out; the compensation money is to be earmarked for nature conservation and landscape management measures (Section 31 (4) LNatSchG NRW).

If the compensatory payment is to be paid for an intervention in forested areas or to be used for the afforestation of land, the payment will be made available to the forestry administration and earmarked for that purpose (Section 31(4) LNatSchG NRW).

Examples of the assessments of compensatory payments are the open-cast gravel mines in the open-cast mining zones in front of the lignite mining projects. In three of the open-cast mines, rehabilitation that is valuable in nature conservation terms was not indicated because open-cast lignite mining would use the area directly after the gravel or sand extraction operations. In these cases, the local sub-authority for nature conservation developed a simplified procedure by means of which an appropriate compensatory payment could be assessed. A total of €265,767.90 in compensatory payments was assessed for the three projects mentioned above.

For another open-cast gravel mining project, a small-scale expansion was planned for which a compensatory payment was assessed, if the intended recultivation could not be implemented. The district sub-authority for nature conservation, however, would have to use the compensatory payment of €21,900 it received to implement another equivalent compensatory measure.

In the period between 2011 and 2015, only a total of around €300,000 in compensatory payments were assessed for the North Rhine-Westphalia mining authorities. The significance of compensatory payments in the procedures carried out under mining law has fallen considerably between 2015 and 2019. During this period, the total amount was less than €100,000.

So far, there have been no compensatory payments for the opencast lignite mining industry in North Rhine-Westphalia; intervention compensation is mainly carried out in the form of rehabilitation. The ratio of the many open-cast mining projects (especially lignite mining projects, some of which are on a large scale) conducted under mining law in North Rhine-Westphalia to the few small projects mentioned above shows that the assessment of compensatory payments plays a subordinate role.

Cooperation between stakeholders

Since each extraction of natural resources represents a significant intervention in nature and landscape, an environmentally friendly extraction development and technology approach must be standard for companies in this sector. Timely renaturation and recultivation can contribute to the promotion of biological diversity; but operating extraction sites may also sometimes be habitats for rare animals and plants. Cooperation between the extractive companies, the employees there and nature conservationists who are familiar with the area has proven to be useful. This means that operational management can be adapted to local and specific biodiversity requirements. This usually succeeds if the company management and employees are continually involved in dialogue with specialist nature conservation institutions and persons. In the case of expansions or new extraction projects, an early dialogue between the stakeholders can also avoid conflicts before they arise. Information and training materials on the subject help to broaden the impact of initiatives like this, which are supported by strong memberships in the environmental and nature conservation associations, the industrial trade union for the construction, agriculture and environment sectors, and economic associations at Federal Government and Federal State levels.

Provisions

In Germany, federal legislation stipulates that extractive companies must conduct recultivation measures. These usually include measures which are still necessary after closure of the mine concerned, such as measures for the rehabilitation of the mine area and recultivation measures.

Provisions are set aside for these financial obligations under accounting rules. The amount of the provisions to be set aside is based on the requisite amount calculated according to reasonable and prudent business judgement to meet financial obligations. When assessing provisions, future cost increases must be taken into consideration. The expected dates of fulfilment are dependent on the remaining economic useful life of the extraction sites in question. The obligations of some companies extend far beyond the year 2050. Long-term provisions with a residual maturity of more than one year are discounted according to the average market interest rate appropriate for the residual maturity and calculated by the German Bundesbank in accordance with a legislative decree and announced each month. Provisions are shown on the liabilities side of the balance sheet in the annual financial statements of the extractive sector companies. They are imperatively examined by auditors as part of the audit review from a legally determined company size. The appropriateness of provisions is audited by the tax authorities regarding tax issues.

Provisions made by companies which must publish their annual financial statements are shown transparently at http://www.bundesanzeiger.de. Companies with mandatory reporting obligations with fiscal years starting after 31 December 2021 publish their financial statements at https://www.unternehmensregister.de. The duty of disclosure pursuant to Section 325 HGB always applies to all limited companies and all commercial partnerships without a natural person as a personally liable shareholder (e. g. GmbH & Co. KG).

Implementation securities

Implementation securities are an instrument provided in Germany to implement the renaturation, safeguarding and rehabilitation measures to be taken by extractive sector companies. If a company should fail or refuse to carry out the above measures, the authorities ensure that no additional costs will have to paid by the public by means of so-called “substitute performances”.

Implementation securities are expressly provided for under the Federal Mining Act (BBergG) as an official instrument for natural resources extraction projects which are subject to the BBergG. Individual Federal States have introduced similar legislation in their excavation laws (or other subordinate excavation regulations) for the extraction of natural resources which is outside the legal scope of the BBergG. Implementation securities can also be established to ensure the implementation of compensatory and substitution measures for interventions in nature and landscape, pursuant to Section 17(5) of the Federal Nature Conservation Act (BNatSchG).

Within the scope of its discretion pursuant to Section 56 (2) BBergG the mining authority may make the granting of operating plan permits dependent on an implementation security if this is necessary to guarantee (in particular) the implementation of measures for risk prevention and rehabilitation in the areas affected by the extraction of the natural resources. This applies to follow-up measures of mining activities such as water drainage, for example, but also to the dismantling of equipment, the removal of water-endangering substances and the securing of former extraction sites by backfilling them or blocking them off completely.

In principle, the mining authority may permit any suitable form of implementation security if it considers that such a security is necessary and if there are no restrictions arising from the relevant statutory provisions. Forms of implementation security include the deposit of cash and bonds, mortgages, special default insurances, operational provisions, bank, or group guarantees and so-called strict letters of comfort.

Operating provisions, bank guarantees or insurance guarantees and, particularly in the case of large companies, corporate guarantees and letters of comfort are customary in the natural resources extractive sector. Cash and bonds are not usually accepted as securities since the management of these instruments is too complex for the authorities. Therefore, securities are not deemed to be payments from companies to government agencies. The amount of the implementation security to be set is based on the estimated cost of a (necessary) substitute performance. If a project is to be implemented in stages, the implementation security is set up in stages based on the actual intervention and is approved on a pro rata basis after successful partial rehabilitation.

The special purpose vehicles planned for the Lausitz lignite coalfield are a special case. These were set up in the course of the 2018/2019 precautionary agreements (amended in 2021)¹³ between the open-cast mine operator LEAG and the Federal States of Brandenburg and Saxony to ensure compliance with the obligations to rehabilitate and provide any aftercare for the mining areas.¹⁴ The company provides these special purpose vehicles with a special fund earmarked for the purpose. A basic amount is planned for this purpose, and it is intended that this will be increased every year, depending on the company’s current profits. If the company becomes insolvent or if it relocates abroad, the special fund is to be pledged to the respective Federal States. Compensation payments connected with the phasing out of coal (see chapter 8) will be paid directly into the special purpose vehicles. The precautionary agreement in the central German coalfield (Saxony) was updated and continued on 29 March 2022 by means of an addendum. The precautionary agreement in the central German coalfield (Saxony-Anhalt) will continue with minor changes.

Overview of compensation directories in the Federal States

* Information on compensatory payments is kept at the level of the nature conservation sub-authorities, i.e. in all urban and rural districts but it is not collected centrally for the relevant Federal State. Furthermore, the data is not broken down according to sectors, so it is not possible to report on the amount of compensatory payments per Federal State and specifically per extractive sector as part of the D-EITI report.

**Publication planned for the end of 2024 / beginning of 2025.

Source: own presentation, as of: October 2024

¹ Destatis, table 33111-0001. URL: https://www-genesis.destatis.de/genesis//online?operation=table&code=331110001&bypass=true&levelindex=1&levelid=1720534916628#abreadcrumb (accessed 9 July 2024).

² Federal Institute for Geosciences and Natural Resources (BGR) (1): Germany – Raw materials situation 2022 (dated December 2023), page 28. URL: https://www.bgr.bund.de/DE/Themen/Min_rohstoffe/Downloads/rohsit-2022.pdf;jsessionid=5E3B0196D0DD8463753064EE00230A18.internet991?__blob=publicationFile&v=7 (accessed 9 July 2024).

³ For more information on compensation for impacts on nature caused by the extraction of natural resources, see section Documentation of compensatory measures for interventions in nature and the landscape.

⁴ The conversion keys are published here: Federal Agency for Nature Conservation (2021): Impact regulation. URL: https://www.bfn.de/eingriffsregelung (accessed 9 October 2024).

⁵ Different regulations apply in Baden-Württemberg (Section 15 (5) sentence 3 NatSchG BW) and Bavaria (Art. 8 (3) sentence 2 BayNatSchG), who have made use of the deviation option according to art. 72 (3) GG.

⁶ See also https://www.bfn.de/landesrecht. In Saxony-Anhalt, Section 11 of the Nature Conservation Act of Saxony-Anhalt (NatSchG LSA) states that the extraction of mineral resources that are not subject to mining law or water law, including sand, gravel, marl, loam, clay, limestone and other rock, gypsum, peat and mud, requires the approval of the nature conservation authority (usually the lower nature conservation authority) if the area to be extracted is larger than 100 m². The content and procedure, including the avoidance, compensation, or replacement measures to be taken as well as compensation payments and securities, are governed by the provisions of Section 13 to 18 of the Federal Nature Conservation Act and Sections 6 to 10 NatSchG LSA, unless the provisions of Sections 12 to 14 NatSchG LSA provide otherwise.

⁷ TIf there is no relevant legal regulation in which the intervention regulation is processed, the respective nature conservation authority is always responsible in accordance with Section 17(3) BNatSchG.

⁸ State law may require a more extensive form of participation – for example, an agreement under Section 7(1) Thuringian Nature Conservation Act (ThürNatG).

⁹ The species protection assessment and any measures and the intervention regulation are generally carried out in parallel. Species protection measures are often presented in the accompanying landscape conservation plan. In individual cases, species protection measures can also be taken into account under the intervention regulation (see Section 15(2) sentence 4 BNatSchG).

¹⁰ Information on other federal states; https://xn--kopunktemarkt-hmb.de/oekokontoverordnungen-bundeslaender/ General information:https://www.kompensationsmarkt.de/faq.

¹¹ According to Section 16 No. 1 BNatSchG, stockpiling measures must fulfil the requirements of Section 15(2) BNatSchG. Accordingly, at least one natural area reference (in the case of replacement) is required.

¹² The procedure described applies nationwide

¹³ Cf.: https://www.leag.de/de/news/details/vorsorgevereinbarung-mit-sachsen-aktualisiert/ (accessed 17 September 2024).

¹⁴ Cf.: https://lbgr.brandenburg.de/lbgr/de/aktuell/buergerinformationen/vorsorgevereinbarung/ and https://www.oba.sachsen.de/kohleausstieg-4084.html (accessed 17 September 2024).