Energy and Climate Change CommitteeWritten evidence submitted by WWF (SEV23)

Preamble

1. WWF-UK is concerned that the Committee is holding this inquiry before details of Hafren Power’s proposal for a Severn barrage have been published and before any research work relating to the potential impacts of this barrage has been peer reviewed.

2. In view of the lack of a clear proposal, business case and assessments of the environmental, economic and social impacts it is not possible for us to answer all the questions posed by the Committee. However, we will provide evidence regarding question 8, on EU legislation (see paragraphs 7–22), and will also provide a summary of WWF’s position on the development of tidal power in the Severn Estuary in the hope that this will help the Committee identify areas where more work is needed.

Summary of WWF-UK’s Position on Severn Tidal Power

3. WWF-UK believes that a revolution in our energy systems is vital if we are to meet the challenges of preventing dangerous levels of climate change and maintaining energy security. As made clear in recent reports from the International Energy Agency1 and the World Bank2, current investment patterns, unless rapidly changed, are putting the world on track for global average temperature rises to significantly exceed 2C, which would have profound environmental and economic impacts. Our absolute priorities must therefore be a strong drive towards improved energy efficiency and a rapid deployment of sustainable, low-impact renewable energy technologies. We strongly support the government’s commitment to deliver the UK’s fair share of the EU renewable energy target for 2020 and for renewables to play a leading role in helping deliver a near-decarbonised power sector in the UK by 2030 as repeatedly recommended by the Committee on Climate Change.

4. WWF-UK’s Positive Energy report3, based on analysis by energy consultants Garrad Hassan, shows that if the UK’s renewable sector is allowed to grow at a steady rate over the next two decades, renewables could provide well over 60% (and potentially up to 88%) of the UK’s electricity demand by 2030 and be the key technological driver for delivering a near-decarbonised power sector for the UK. Garrad Hassan’s analysis also showed that energy efficiency measures could reduce the required capital investment in renewables, gas power stations, CCS and interconnection infrastructure by up to £40 billion by 2030.

5. However, in supporting the rapid deployment of renewable energy technologies, the Government must respect wider concerns over environmental sustainability. After consideration of the findings of the UK Government’s Feasibility Study into Tidal Power in the Severn Estuary (2008 to 2010), WWF-UK came to the conclusion that there is no clear option at this time that would allow for the tidal range energy from the Severn Estuary to be harnessed in an environmentally sustainable way. In particular, the irreversible impacts on fish, birds and habitats are unacceptable for schemes using conventional barrage technology with high head turbines, and there is insufficient information on the impact of low head turbines. Furthermore, the effectiveness and adequacy of proposed compensatory measures are unproven.

6. WWF-UK strongly supports further research into alternative and more sustainable ways of generating renewable electricity from the Severn Estuary. However, we believe that stringent tests should be applied to determine the acceptability and feasibility of any new proposal for harnessing tidal energy in the Severn estuary. In particular, we believe that the environmental conditions resulting from any scheme must meet the following minimum requirements:

(i).the loss of habitat must be less than the area of compensatory habitat that could be secured locally (ie in or near the Estuary);

(ii).any compensatory measures required in relation to habitat and species losses must be provided in full compliance with the Habitats Directive and the European Commission’s guidance;

(iii).there would be no far field effects caused by an impoundment that required significant new infrastructure for flood or coastal erosion risk protection away from the Estuary;

(iv).there should be no serious risk that water quality standards would be breached or that eutrophication would be a significant issue;

(v).potentially toxic elements in the sediment would not be at a concentration where they posed a risk to benthic organisms or species further up the food chain;

(vi).the deliverability of Government measures for achieving Good Environmental Status under the European Marine Strategy Framework Directive must not be compromised;

(vii).the transit of fish across or through any scheme (through turbines or fish-pass) would need to result in close to zero mortality so that even multiple transits would pose no threat to the survival of the species within the Estuary.

Habitats and Birds Directives

7. Together, the Habitats and Birds Directives (the “Nature Directives”) provide invaluable protection for our rarest and most threatened habitats and species and in so-doing, play a vital role in securing ecosystem services benefitting human-kind. WWF has supported the development, implementation and enforcement of the Nature Directives for over 25 years in recognition of their role as the EU’s cornerstone of biodiversity policy and global exemplars in biodiversity protection.

8. In 2001, EU Heads of State agreed to a biodiversity target under which, by 2010, the EU should have halted the loss of biodiversity within its own territory and beyond. This target was clearly not realised, the principal reasons for failure being recognised as: (i) the incomplete implementation of the Nature Directives; and (ii) a widespread failure to integrate conservation and the management of biodiversity into other policies.

9. The effective implementation of the Nature Directives will be required if we are to meet not only our EU targets, but our international biodiversity commitments, including Aichi targets 11 and 12 agreed as part of the CBD Strategic Plan at Nagoya in 2010.

10. Article 6 of the Habitats Directive plays a critical role in ensuring that Natura 2000 sites are appropriately managed and that potential development proposals proceed on a lawful and proper basis. It is clear from the language in Article 6(3) and (4) of the Directive that a site is only to be damaged or destroyed in exceptional circumstances. Moreover, European Guidance4 confirms that because Article 6(4) is a derogation from Article 6(3), it must be interpreted in a restrictive way, so that its application is limited to circumstances where all the conditions are satisfied. In this regard, it falls on whoever wants to make use of this exception to prove, as a prerequisite, that the aforementioned conditions do indeed exist in each particular case5.

11. We are fortunate to benefit from nearly twenty years of case-law on the Nature Directives arising from the European and domestic courts. The established jurisprudence of these courts is central to the question as to whether the Cardiff-Weston barrage represents a potential breach of EU environmental legislation. While the answer to that question is categorically in the affirmative, we would reiterate our support for ongoing research into the suitability of other tidal energy options in the Severn Estuary.

12. The following legal principles emerge from that case-law of relevance to the consideration of the Cardiff-Weston barrage:

(i).Member States may not reduce the surface area of Natura 2000 sites, or alter their boundaries, unless the excluded areas are no longer the most suitable territories for the conservation of habitats and species listed on the Nature Directives (C-191/05, Commission v Portugal, C-57/89, Commission v Germany- “Leybucht dykes” and, more recently Advocate General Sharpston’s findings in Commission v Austria (C-535/07));

(ii).Member States cannot of their own accord “whether because of economic, social or cultural requirements or because or regional or local characteristics, delete sites which at national level have an ecological interest relevant from the point of view of the objective of conservation without jeopardising the realisation of that objective at Community level” (First Corporate Shipping (C-371/98) and Commission v Ireland (C-67/99);

(iii).The derogations set out in Article 6(4) of the Habitats Directive must be interpreted strictly. Thus, the implementation of a plan or project under Article 6(4) of the Habitats Directive is, inter alia, subject to the condition that the absence of alternative solutions be demonstrated (C-239/04, Commission v Portugal—”Castro Verde”);

(iv).Article 16 of the Habitats Directive defines in a precise manner the circumstances in which Member States may derogate from Articles 12, 13, 14 and 15(a) and (b) thereof, so that Article 16 must be interpreted restrictively ((C-06/04, Commission v United Kingdom);

(v).Permission for a proposal cannot be granted pending information regarding the potential impact on European Protected Species (EPS) as the decision-maker cannot rationally conclude that there are no significant nature conservation issues until it has the relevant data before it (R v Cornwall County Council, ex parte Hardy6);

Compensatory Measures

13. In the event that a plan or project may be carried out for imperative reasons of overriding public interest (IROPI), Article 6(4) of the Habitats Directive requires Member States to “take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected” and to “inform the Commission of thecompensatory measures adopted”.

14. Both Member States and the Commission play a critical part in the process of building a coherent Natura 2000 network. Member States are required to propose habitats “in proportion to the representation within their territory of the natural habitat types”; they are to do so by proposing a list on the basis of the criteria set out in Stage 1 of Annex III, for both habitats and species. By way of response (i.e. Stage 2 of Annex III), the Commission makes an assessment of the Community importance of the site. It examines not only its national importance but also its role in the bio-geographical regions concerned and its relation to migration routes and neighbouring ecosystems in other Member States.

15. The result, as and when the Member State designates the site as a SAC is that the site becomes part of the Community network. Its status there, usually reflecting a mixture of designated habitats and designated species, is to aid that coherence.

16. The concept of coherence can be found in the recitals to the Directive, and in the objective set out in Article 3(1) to create a “coherent ecological European network,” supported by Article 6(4). As the Commission states in 2007 Guidance7, “Article 6(4) requires Member States to protect the overall coherence of Natura 2000. Thus, the Directive presumes that the “original” network has been coherent. If the exception regime is used, the situation must be corrected so that the coherence is fully restored.”

17. There have been a number of cases in which the Commission has been requested to provide an opinion to Member States regarding the requirements of the Nature Directives, and in particular the adequacy of proposed compensatory measures8. In these cases, the opinion of the Commission was integral to the project receiving permission. In providing support for the compensatory measures proposed, the EC must, among other things, be satisfied that there are no alternatives to the proposed project, that the test of IROPI has been met and that the overall coherence of the Natura 2000 network would not be compromised.

18. There are also a number of European case studies which demonstrate the importance of developing a comprehensive package of compensatory measures to enable large, strategically important infrastructure projects to proceed9. Key attributes of compensatory measures include: (1) the full and proper understanding of the impacts (aided by robust environmental assessments) that must be compensated for; (2) early stakeholder engagement to aid collaboration, cooperation and wide agreement on the measures; (3) measures that at least replace that which is lost (but a net benefit for biodiversity will be favourable) and are in addition to existing conservation measures; (4) taking into account uncertainties and developing long term monitoring and evaluation programmes with regular reporting and review.

Equal Value Compensation

19. A report produced for the [former] Sustainable Development Commission in 2010, as part of the Feasibility Study into Tidal Power in the Severn Estuary, discussed the possibility of a new approach to compensation using “equal value ecological compensation”. The report advised that if tidal power proposals in the Severn Estuary were to adversely affect Natura 2000 sites to the degree that traditional “like-for-like” compensation measures would be implausible, it would be possible to compensate for those impacts by providing compensatory measures which were of “Equal Value” to those that would be lost.

20. WWF and a coalition of NGOs sought legal advice on this issue10. This advice confirmed that “Equal Value” compensation, as formulated in the report, is not lawful and that if the UK were to proceed with a tidal power option in the Severn Estuary that would result in the extinction of an Annex II species in the UK and the widespread, significant, and irreversible loss of Annex I habitats (some of which could not be re-created)this would result, unequivocally, in a breach of the letter and spirit of the Directive, as well as Guidance published by the Commission concerning its implementation.

21. In terms of compensatory measures more generally, the legal advice identified a number of relevant issues in the context of this review:

(i).There is nothing in the Habitats Directive to support the principle of equal value;

(ii).The European Commission has not accepted compensatory measures in any form other than the same as, or similar to, that which has been destroyed;

(iii).The Commission Guidance is to like effect;

(iv).Compensatory measures in respect of which the Commission has published an opinion generally include the provision of at least three times as much (and often significantly more) habitat than will be lost11;

(v).Consideration of conservation status at the level of the Atlantic bio-geographic region, whilst playing a part in the original Natura 2000 site selection, would not by itself be sufficient, as this would be ignoring the reasons as to why the particular sites in question warranted being made part of the network;

(vi).The notion of providing compensation on an Atlantic bio-geographic scale is practically unworkable under the Directive. The Directive does not enable the Commission to direct that compensation take place in other member states, nor are Member States entitled to discharge their obligations elsewhere in the European Union;

(vii).There is no legal competence under the Directive (or elsewhere) for Member States to take action in other Member States. Thus, the supposition that it is wholly acceptable for the majority of the UK population of a species (the Allis Shad in the case of the Severn estuary) to be destroyed on the basis that there are much larger populations elsewhere in the EU which may be capable of improvement, is unlawful.

22. The Legal advice also confirmed that compensatory measures must ensure the overall coherence of Natura 2000 at all applicable levels—regional, national and EU. The concept of “Equal Value” has no origins in the Directive — lawful compensation relies on “like for like” replacement.

Additional research needed

23. In order to help consider the feasibility of other potential options of generating renewable electricity from the Severn, we believe the following additional research work must be carried out, either before or as part of any review of Severn Tidal Power, to address the uncertainties and gaps which were identified during the course of the Feasibility Study:

(i).generate more knowledge and certainty about the ecology of the Severn Estuary, particularly in relation to fish and bird behaviour;

(ii).improve understanding of the role and significance of the estuary as nursery spawning grounds;

(iii).assess the value of the ecosystem services provided by the Severn Estuary;

(iv).assess the hydrological and geomorphological impacts of the proposed barrage in the Severn Estuary and further afield, particularly in relation to modelling of water levels, sedimentation effects, coastal erosion and flood risk;

(v).model the impact of low-head turbines on terrestrial and fluvial ecology;

(vi).understand the potential for erosion due to wind-generated waves and to clarify the timescale over which detriment would occur and whether there are mitigating measures that could be put in place;

(vii).model conditions during and after de-commissioning to assess whether the estuary would return to a semi-natural state and over what time period;

(viii).assess changes in dilution and dispersion of effluent;

(ix).assess predicted impacts on water level management upstream of an impoundment and associated changes in land use, habitats and species;

(x).determine whether the creation of freshwater wetlands in close proximity to the Severn Estuary would be an effective measure to help offset impacts on bird species that regularly use freshwater sites;

(xi).quantify the effects of fish passage through turbines; and

(xii).improve understanding of the effectiveness of mitigation measures.

24. WWF-UK strongly believes that all means of generating renewable energy must be environmentally sustainable, and must not undermine the integrity of important designated sites.

November 2012