Kiri

Kultuuriministeerium 20.07.2023 nr 6-5/23/1622-6 Komisjoni kirja edastamine: Permit extension of the Linnamäe hydropower plant Edastame vastamiseks Euroopa Komisjoni kirja Linnamäe hüdroelektrijaama loamenetlusest. Kultuuriministeerium on määratud Vabariigi Valitsust esindama Vabariigi Valitsuse 03.06.2022 korraldusega nr 163 „Nõusolek tegevusloa andmiseks Linnamäe paisul Jägala jõe paisutamiseks ja Linnamäe hüdroelektrijaamas hüdroenergia kasutamiseks elektrienergia tootmisel“ seotud küsimustes ja vastas ka esimesele Euroopa Komisjonilt saabunud samateemalisele kirjale 19.05.2023 kirjaga nr 658-3. Lugupidamisega (allkirjastatud digitaalselt) Herdis Fridolin Looduskaitse osakonna nõunik osakonnajuhataja ülesannetes Lisa: Euroopa Komisjoni kiri Teadmiseks: Riigikantselei; Eesti Vabariigi alaline esindus Euroopa Liidu juures; Keskkonnaamet Kadri Möller, 626 2876 [email protected] Suur-Ameerika 1 / Tallinn 10122 / 626 2802/ [email protected] / www.kliimaministeerium.ee/ Registrikood 70001231  Ref. Ares(2023)4899904 - 14/07/2023 EUROPEAN COMMISSION DIRECTORATE-GENERAL ENVIRONMENT Directorate D - Biodiversity ENV.D.3 - Nature Conservation Head of Unit Brussels, ENV.D.3/AV/UG/ Ares (2023) Mr Aivo Orav Permanent Representative of Estonia to the EU Permanent Representation of Estonia to the European Union Rue Guimard 11/13 1040 Brussels [email protected] Subject: Your letter of 19 May 2023 - No 12-6/658-3 - Permit extension of the Linnamäe hydropower plant, registered in Ares 2023/3531775 Dear Ambassador, I would like to thank you for transmitting the reply of the Estonian Ministry of Culture to the Commission’s inquiry in relation to the permit extension of the Linnamäe hydropower plant (your reference No 6-5/23/1622-2). After thorough analysis of the information provided, the Commission still has doubts concerning the correct application of Articles 6(2), 6(3) and 6(4) of the Habitats Directive. In this respect, I would like to share with you the following observations and questions: According to the Ministry of Culture, “the measures that are planned for organising the protection […] must also be based on the fact that the existing situation does not deteriorate as a result of being designated as Natura site. The fact that the dam at the Linnamäe hydroelectric power plant already existed when the Natura area was created must also be considered. Therefore, the starting point for making any assessments can be that the activity must not lead to a significant deterioration or disturbance of the condition of the area.” This is not correct. While the site was designated after the first permit was granted, this permit expired and had to be renewed, or rejected if it does not comply with the new legal situation. Given that the situation had changed in between the permit granting procedures, the assessment of possible significant effects on the designated site cannot be restricted to non-deterioration under Article 6(2), but also needs to assess potential negative effects on the site’s conservation objectives under Article 6(3). Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111 Office: BRE2 08/DCS, Avenue d’Auderghem 19 - Tel. direct line +32 229-+32 229-84346 [email protected] The ECJ has confirmed in several cases that Article 6(2) and 6(3) are designed to ensure the same level of protection. Where Article 6(2) leads to an obligation to carry out a subsequent review of implications for the concerned site, the review must be carried out in accordance with Article 6(3) requirements. This is clarified in the Article 6 Guidance of the European Commission1: “Where authorisation for a plan or project has been granted without complying with Article 6(3), a breach of Article 6(2) may be found where deterioration of a habitat or disturbance of the species for which the area in question was designated has been established (C-304/05, C-388/05, C-404/09, C-141/14)”. The same applies to all projects and activities which were authorised prior to the inclusion of sites into the SCI list, or their classification as SPAs, and which do not fall under the obligation of the assessment of their implication for habitat types and species under Article 6(3) but the effects of which might adversely affect the integrity of those sites. Article 6(2) and 6(3) of the Habitats Directive must be construed as a coherent whole, and are designed to ensure the same level of protection of natural habitats and habitats of species (C-258/11, C-521/12, C-399/14, C-387&388/15). Therefore, where Article 6(2) leads to an obligation to carry out a subsequent review of the implications for the site concerned of a plan or project, that review must be carried out in accordance with the requirements of Article 6(3) (Case C-399/14, paragraph 54)2.” The Estonian Environmental Board has followed this case law and performed an ex-post Article 6(3) assessment, concluding that the dam and hydropower plant has significant negative effects on the Jägala site’s conservation objectives that cannot be mitigated. In the following Article 6(4) procedure, the Estonian government in its order order of 3rd June 20223, laid down the reasons for overriding public interest and a lack of alternatives, and consented to grant the permit. The order, however, completely disregards another important requirement under Article 6(4): the need for compensatory measures in order to achieve the Jägala site’s conservation objectives and therefore Estonia’s obligations under Article 3 of the Habitats Directive. While the Ministry of Culture in its reply to the Commission holds that “the evaluation and development of compensation measures, which ensure that the condition of the area does not deteriorate compared to the time that a Natura area was created, is within the 1 Managing Natura 2000 sites: The provisions of Article 6 of the ‘Habitats’ Directive 92/43/EEC: EN_art_6_guide_jun_2019.pdf (europa.eu) 2 This is also reflected in judgment No 17-1739-32 of the Estonian Supreme Court, which held that even if, despite mitigating measures, the continued activity leads to significant damage to the conservation objective of a Natura site, the competent authority may, by way of derogation from Article 6(2), authorise it by analogy with the procedure provided for in paragraph 4 of that article, provided that the conditions laid down in that provision are essentially fulfilled (judgment of the Court of Justice in Case C-399/14: Grüne Liga, p. 55), inter alia, an appropriate assessment shall be carried out in accordance with the requirements of Article 6(3) and compensatory measures shall be taken. 3 Consent to the granting of a licence to expand the Jägala River at the Linnamäe dam and to use hydropower in the Linnamäe hydroelectric power plant for the production of electricity –Riigi Teataja 2 competence of the Environmental Board and is carried out in the course of granting the water permit” and states that “the Government of the Republic did not have to decide on compensation measures, as this is done by the Environmental Board in the course of granting the water permit. Herewith, the working version prepared by the Environmental Board cannot be considered to be the final assessment and binding on the Government of the Republic”, the Commission would like to stress that the Environmental Board in its Article 6(4) assessment4 has already confirmed that that the conservation values of the Jägala site could only be partially compensated and not to the same or a greater extent (p. 56). The Ministry of Culture also presumes that “it cannot be inferred from the Nature Directive, nor from the related case law, that Estonia should restore the situation on the Jägala River to the situation that existed approx. 100 years ago, because, despite the existing dam and activities, the area was submitted to be included on the list of Natura sites.” The Commission would like to clarify that neither the Habitats Directive, nor the Article 6(3) and 6(4) assessment of the Environmental Board require to restore the Jägala site to a situation that existed 100 years ago. In order to reach favourable conservation status of the three species and one habitat under Article 3 of the Habitats Directive and given the fact that Jägala is a very important site for these protected goods, Estonia needs to ensure that the site’s conservation objectives are met. This is recognised by the Ministry of Culture in its reply to question 2: “The fact that the Environmental Board has decided through conservation management plans to restore the situation at the Linnamäe dam to the one that existed prior to the construction of the dam does not imply a limitation of the competence of the Government of the Republic on deciding on the matter and the fact that this objective must be achieved in any case.” Given the fact that the dam and hydropower plant have significant negative effects on these conservation objectives, which cannot be mitigated, compensatory measures have to be taken under Article 6(4). The Environmental Board in its Article 6(4) assessment has not only evaluated compensatory measures for the Jägala site, but also for four other rivers, where habitat type 3260 and Lampetra fluviatilis (European river lamprey), Salmo salar (Atlantic salmon) or Unio crassus (Thick shelled river mussel) exist or could potentially be restored (pp 47-55). According to the best available knowledge, numerous obstacles prevent effective measures that would lead to a full compensation (presence of the species unclear, only part of the species present, species present but in very low numbers, low water levels due to abstraction, substantial restoration measures required, mitigation measures for another hydropower plant necessary, contamination/pollution with different fish-toxic substances). Consequently, the Board concludes that the conservation values of the site Jägala can only be partially compensated for (p. 56). 4 Article 6.4 assessment: https://keskkonnaamet.ee/keskkonnateadlikkus-avalikustamised/raagi- kaasa/keskkonnamoju-hindamiste-avalik-valjapanek#jagala 3 Instead, it suggests a compromise solution which would restore the site in line with its conservation objectives, at the same time preserving the dam as a cultural heritage. Also, the recreation potential of the area will be kept and even improved after opening the dam, as shown in the restoration proposal. The solution would however lead to the cessation of hydropower production. https://www.youtube.com/watch?v=0BPKRnBR_yU&ab_channel=J%C3%A4galaKalate ed There is also evidence that the disappearance of the reservoir lake following an opening of the dam would not lead to landslides endangering the archaeological site. The reservoir has already been emptied several times, showing that slopes are not steep and are quickly covered by natural vegetation, preventing erosion and slides. Considering that, according to the assessment of the Environmental Board as competent authority, full compensation of the adverse effects of the dam and hydropower plant is not possible, the Commission holds that the requirements of Article 6(4) are not met and the permit under the current circumstances cannot be granted. I would therefore again like to inquire, how Estonia intends to correctly implement Article 6(4) in this case? Given that the government has already consented to extend the permit, how will the conservation objectives of the Jägala site be met? Considering the importance of the site, how will Estonia comply with its obligation under the Habitats Directive to reach favourable conservation status of habitat 3260 (Water courses of plain to montane levels with the Ranunculion fluitantis and Callitricho- Batrachion vegetation) as well as of Lampetra fluviatilis (European river lamprey), Salmo salar (Atlantic salmon) and Unio crassus (Thick shelled river mussel) at national level, which are all in unfavourable status5? 5 Latest Article 17 reporting of 2013-2018: Habitat 3260: https://www.eionet.europa.eu/article17/habitat/report/?period=5&group=Freshwater+habitats&country =EE&region= Lampetra fluviatilis, Salmo salar, Unio crassus: https://www.eionet.europa.eu/article17/species/report/?period=5&group=Fish&country=EE&region= https://www.eionet.europa.eu/article17/species/report/?period=5&group=Molluscs&country=EE&region= 4  I would be grateful if you could reply to the above questions within two months as of receipt of this letter. Yours sincerely, e-signed Andrea Vettori Head of Unit 5 Electronically signed on 13/07/2023 17:48 (UTC+02) in accordance with Article 11 of Commission Decision (EU) 2021/2121