Kiri

Kultuuriministeerium 28.04.2023 nr 6-5/23/1622-2 Kirja edastamine: Permit extension of the Linnamäe hydropower plant Edastame vastamiseks Euroopa Komisjoni kirja Linnamäe hüdroelektrijaama loamenetluse kohta, kuna 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. Keskkonnaministeerium saadab sisendi esimesele ja viiendale küsimusele vastamiseks 10. maiks 2023. Lugupidamisega (allkirjastatud digitaalselt) Marku Lamp Asekantsler Lisa: Euroopa Komisjoni kiri Teadmiseks: Riigikantselei; Eesti Vabariigi alaline esindus Euroopa Liidu juures Kadri Möller, 626 2876 [email protected] Paldiski mnt 96/ Tallinn 13522/ 626 2802/ [email protected]/ www.envir.ee/ Registrikood 70001231  Ref. Ares(2023)2690500 - 17/04/2023 EUROPEAN COMMISSION DIRECTORATE-GENERAL ENVIRONMENT Directorate D - Biodiversity ENV.D.3 - Nature Conservation Head of Unit Brussels, ENV.D.3/LS/UG/fl 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: Permit extension of the Linnamäe hydropower plant Dear Mr Orav, The Commission has been made aware of the procedure to extent the permit for the operation of the Linnamäe hydropower plant located in the Natura 2000 site Jägala (EE0010150). The site Jägala has been proposed as Site of Community Importance (SCI) under the Habitats Directive1 in April 2004. The site was added to the list of SCIs by Commission Decision 2008/24/EC of 12 November 2007. It includes 27 ha of habitat type 3260 (Water courses of plain to montane levels with the Ranunculion fluitantis and Callitricho- Batrachion vegetation) in conservation category (B)2. According to the latest Article 17 reporting, the habitat is in “unfavourable-inadequate” conservation status in Estonia3. A hydropower plant was built in the site before Estonia proposed it as SCI. On 15 January 2008, the Environmental Service (today’s Environmental Board) issued a time- limited environmental permit until 15.01.2013, which has been extended several times until 2022. This plant has been recently subject to an appropriate assessment in view of the renewal of the permit for its operation. 1 Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (OJ L 206 of 22.7.1992, p. 7) 2 Standard Data Form: N2K EE0010150 dataforms (europa.eu) 3 https://www.eionet.europa.eu/article17/habitat/report/?period=5&group=Freshwater+habitats&country =EE&region= 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] According to the ex-post appropriate assessment4 (published for consultation in February 2022), the use of hydropower and the infrastructure set up for this purpose, as well as the effects of the dam have been identified as a pressure and risk factor on the conservation objectives of the site. In order to achieve a favourable condition of the habitat type in the site, the main mitigation measures identified by Estonian authorities in the appropriate assessment include reducing the negative effects of the hydropower installations. Restoring the habitat type 3260 has also been identified as a measure. The assessment also states that, given its great potential, the Jägala site makes an important contribution to achieving favourable conservation status of the habitat type 3260 at national level. The conservation objectives laid down in the site’s management plan5 envisage restoration of 16 ha of habitat type 3260 from conservation category (B) to (A). Figure 1: Site Jägala (EE0010150): Location of Linnamäe dam + hydropower plant marked in red Google maps Natura 2000 viewer The site hosts five strictly protected species, of which Lampetra fluviatilis (European river lamprey), Salmo salar (Atlantic salmon) and Unio crassus (Thick shelled river 4 Appropriate assessment, p. 5: Keskkonnamõju hindamiste avalik väljapanek | Keskkonnaamet 5 Approved by Order No 1-2/17/15 of the Director-General of the Environmental Board of 28 June 2017, Order No 1-2/17/26 of the Director-General of the Management Plan as amended on 5 June 2017. 2 mussel) are in unfavourable-inadequate conservation status at national level6. While Cottus gobio (European bullhead) is in favourable conservation status, hydropower, including its expansion, has been identified as a threat. As stated by the appropriate assessment, the primary adverse effects of the Linnamäe dam and hydropower plant on the habitat type 3260 and the protected species in the site are the barrier effect to the free movement of fish upstream and downstream of the barrier, fish mortality in turbines, the flooding of a valuable river habitat of around 5 ha, the fragmentation of habitats, the accumulation of sediments on the flooded area, changes in the natural water regime and deterioration of water quality (pp. 12-14 and 16-26). Mitigation measures Several mitigation measures have been evaluated and tested in practice (different alternatives for fish passages, restocking of salmon, installation of different turbines, additional grilles), but the assessment concludes that none of them would allow to reach the site’s conservation objectives, due to low effectiveness as well as habitats still being flooded and of low quality (pp. 32-37). Consequently, the assessment concludes that the only possibility to reach the site’s conservation objectives is to open up the dam and to discontinue the operation of the Linnamäe hydropower plant. Equally, the management plan foresees the removal of the dam as the most important conservation measure. The Commission has the following observations and questions: 1. Has an appropriate assessment under Article 6(3) of the Habitats Directive been carried out before the first permit decision in 2008 and if so, what were the results? If there was no assessment, please explain why. The dam of the Linnamäe hydroelectric power station has been designated as a cultural monument by order of the Minister of Culture No. 21 of 2016. The order was amended in 2020, establishing a common protection zone for the dam, the castle "Jägala Linnamägi" and the archaeological site of the settlement, together with two new archaeological monuments, which also includes a large part of the reservoir. Jointly with the appropriate assessment, the Environmental Board has issued an assessment under the so-called Article 6.4 “Natura exemption procedure”, which covers the analysis of possible alternatives, reasons of overriding public interest and compensatory measures7. Potential alternatives In its Article 6.4 assessment, the Environmental Board finds that alternative solutions for electricity generation exist, such as the production of hydropower in other locations or 6 Latest Article 17 reporting of 2013-2018: 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= 7 Article 6.4 assessment: https://keskkonnaamet.ee/keskkonnateadlikkus-avalikustamised/raagi- kaasa/keskkonnamoju-hindamiste-avalik-valjapanek#jagala 3 the use of other renewable energy, such as biomass, waste, wind and solar energy and that the achievement of Estonia’s renewable energy targets would not be affected should the permit for the operation of this hydropower plant not be renewed, given the small installed capacity of 1.15 MW. It also stipulates that the Linnamäe hydropower plant is not a provider of vital services within the meaning of the national Emergency Act (pp. 16-23). The Board states that the protection of the dam as a heritage monument does not justify the authorisation for the production of energy and concludes that the condition that there are no alternative solutions is not fulfilled. Overriding public interest The Article 6.4 assessment concludes that the fact that the dam is a national cultural monument does not constitute imperative reasons of overriding public interest nor does the electricity production (pp 38-39). However, the assessment states that it is possible to reconcile the interests of both heritage conservation and environmental protection, including those arising from the Habitats Directive (pp 27-28). Compensatory measures The Article 6.4 assessment finds that, as alternative solutions are available, there is no need to look at compensatory measures (p. 40). However, despite these assessment results, according to the information provided in the Environmental Board’s Article 6.4 “Natura exemption procedure”, possible compensatory measures have been evaluated for four other rivers, where habitat type 3260 and the European river lamprey, the Atlantic salmon or the 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 supposes that the conservation values of the site Jägala can only be partially compensated for (p. 56). Therefore, the Board concludes that the conditions set in Article 6.4 procedure are not met (p. 55). With its order of 3 June 20228, the Estonian government consented to grant the licence to expand the Jägala River at the Linnamäe dam and to use hydropower for the production of electricity at Linnamäe hydroelectric power plant, considering both cultural heritage preservation and the hydropower plant’s electricity generation of overriding public interest. The government did not agree with the Environmental Board’s technical assessment and conclusions, explaining in detail the reasons for the lack of alternatives and the existence of overriding public interest of social and economic nature. The 8 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 4 Government ordered that conditions of the permit, including the compensatory measures, are to be set by the Environmental Board. Questions in relation to the application of Article 6.4 2. Can Estonia explain on what grounds the government has completely reverted the assessment of the Environmental Board, clearly concluding that there are alternatives and the continued operation of the hydropower plant is not justified for imperative reasons of overriding public interest? Can Estonia explain how is this compatible with the fact that the management plan for the site foresees the removal of the dam as the most important conservation measure to reach conservation objectives? The Commission notes that compensatory measures proposed for a project should address, in comparable proportions, the habitats and species negatively affected; and provide functions comparable to those which had justified the selection criteria for the original site. They should also be feasible and operational in reinstating the ecological conditions needed to ensure the overall coherence of the Natura 2000 network9. Measures for which there is no reasonable guarantee of success should not be considered under Article 6(4), and the likely success of the compensation scheme should influence the final approval of the plan or project in line with the prevention principle. 3. Why does the government consider that it is possible to compensate for the damage to the protected habitats and species in the site, despite the fact that the Article 6.4 assessment concluded full compensation is not possible? 4. The appropriate assessment finds that, with the retention of the dam, the re- production of salmon in the Jägala river is close to 0, as 96 % of habitats are inaccessible or flooded. Given that the restoration of 7.6 ha of high-quality habitat in the river Jägala (of which 5 ha in the Linnamäe dam area and 0.3 ha downstream of the Linnamäe barrier) would yield a reproduction potential of Salmo salar of at least 8500 – 12600 descendants per year, how would this be guaranteed through compensatory measures in other river systems? I would like to remind that, in line with Article 6.4, the competent national authorities have to inform the Commission of the compensatory measures adopted. The information should enable the Commission to assess the manner in which the adverse effects are compensated for, so that the elements of integrity contributing to the overall coherence of the Natura 2000 network are maintained in the long term. It may also prove necessary to provide certain elements relating to the studied alternative solutions and to the imperative reasons for overriding public interest which have led to the approval of the plan or project10. In order to allow the Commission to request additional information on the measures taken or to take action in case it considers that the legal requirements of the Directive 9 C(2018) 7621 final: Managing Natura 2000 sites: The provisions of Article 6 of the 'Habitats' Directive 92/43/EEC 10 See footnote 9 5  have not been applied correctly, compensatory measures should be submitted to the Commission as soon as they have been adopted and before they are implemented11. 5. Will Estonia ensure that the Article 6.4 notification will be submitted to the Commission before the permit is issued (including compensatory measures, studied alternative solutions and imperative reasons for overriding public interest)? Or has the permit been granted already? I would be grateful if you could reply to the above questions within one month as of receipt of this letter. Yours sincerely, e-signed Luisa Samarelli Acting Head of Unit 11 See footnote 9 6 Electronically signed on 14/04/2023 12:20 (UTC+02) in accordance with Article 11 of Commission Decision (EU) 2021/2121