Interventions in nature and landscape: Impact regulation

The central concept of nature conservation law is "intervention in nature and landscape". This refers to changes to the shape or use of land or the groundwater table that can significantly impair the performance and functionality of the ecosystem or the landscape (e.g. construction of buildings in outdoor areas, removal of structures that shape the landscape or biotopes that are important for the ecosystem, independent excavations or landfills in outdoor areas).

In accordance with the Federal Nature Conservation Act, agricultural, forestry and fishing land use is not to be regarded as an intervention, provided that the objectives of nature conservation and landscape management are taken into account and the principles of good professional practice are observed. However, this does not include the construction of buildings used for agricultural purposes. Grassland plowing, for example, can also constitute an encroachment or require a water law procedure, regardless of agricultural requirements.

In accordance with Section 18 of the Federal Nature Conservation Act, the provisions of the impact regulation do not apply to projects in areas with development plans and in inner areas (Sections 30, 33 and 34 of the Federal Building Code).

Significant impairment of nature and the landscape must be avoided as a matter of priority by the polluter. Any intervention that is not necessary to achieve a specific objective is inadmissible from the outset.

In the case of a permissible intervention, it must be examined how compensation or replacement can be created for the unavoidable impairments to nature and the landscape in accordance with the polluter pays principle. The requirements for compensatory and replacement measures are specified in § 7 of the State Nature Conservation Act, over and above the provisions of federal nature conservation law. In particular, it specifies the type of measures that are possible and the areas in which they should be implemented. Compensation and replacement measures must be maintained and legally secured for the required period of time.

If an intervention cannot be compensated for or replaced, it must be examined whether nature conservation concerns take precedence over or take a back seat to the significance of the project in question. If the interests of nature conservation take precedence, the intervention may not take place, i.e. the project may not be carried out. If nature conservation concerns are of secondary importance, the party responsible for the intervention is obliged to pay compensation in money. The compensation payment is calculated on the basis of the average costs of the compensatory and replacement measures that cannot be implemented, including the average costs required for their planning and maintenance as well as the provision of land, taking into account personnel and other costs; if this cannot be determined, it is based on the duration and severity of the impact.

In order to prepare the decisions and measures for the implementation of the impact regulation, the polluter must provide the necessary information, both on the assessment of the impact and on the planned measures to avoid, compensate and replace the adverse effects on nature and the landscape. Information must also be provided on the actual and legal availability of the areas required for compensation and replacement. Further details can be found in the "State Ordinance on the Compensation of Interventions in Nature and the Landscape" dated June 12, 2018.

Based on the legal basis in the Federal and State Nature Conservation Act, compensation areas must be recorded in a compensation register in accordance with the requirements of the State Compensation Register Ordinance.