Vastus pöördumisele

Luisa Samarelli Yours: 28.04.2023 No 6-5/23/1622-2 European Commission, Directorate-General for Environment Directorate D - Biodiversity ENV.D.3 - Nature Conservation [email protected] Ours: 19.05.2023 No 12-6/658-3 In response to your inquiry: Permit extension of the Linnamäe hydropower plant Thank you for your inquiery. Answers to the questions asked are as followed. Answers to questions number 1 and 5 are provided by Ministry of the Environment 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 first permit was issued in 2002, the next permit on 15.01.2008 by Harju County Environmental Department. The second permit was granted to Eesti Energia as a special water use permit No L.VT.HA171918 in the profile of the Linnamäe dam for the production of electricity from hydropower. No EIA nor AA has been found in this regard. Section 3.10 of the special water use permit states the justification for granting the special water use permit, but unfourtanately related justifications cannot be found also due to the reorganization of institutions and changing the staff. The permit states that: „Eesti Energia AS Taastuvenergia company restored the Linnamäe HPP located at the mouth of the Jägala river in 2002. They were issued a special water use permit HA0523 (L.VT-12822), which was valid until 15.01.2008. a. The company applied for a special water use permit to continue producing electricity from hydropower in connection with the expiration of the existing permit.“ The EIA was initiated to carry out also appropriate assessment by Environmental Board in 2015 because a new water permit for hydropower production was applied for again. The EIA was terminated in 2022 taking into account the results of court case No 3-17-1739 of Administrative Board of the Estonian Supreme Court. After that Environmental Board carried out the Habitats Directive Art 6.3 and Art 6.4 assessments by itself 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 explanation is that the The Order of the Government of the Republic No. 163 dated 03.06.2022 “Consent for the Issuance of an Operating Permit for the Expansion of the Jägala River at the Linnamäe Dam and the Use of Hydropower in the Linnamäe Hydroelectric Power Station for the Suur-Karja 23 / 15076 Tallinn, Estonia / + 372 628 2222 / [email protected] / www.kul.ee / Registration No 70000941 Production of Electricity” (hereinafter Order No. 163), based on Estonian law, is a pre- administrative act. Order no. 163 was issued on the basis of § 29 (3) of the Environmental Impact Assessment and Environmental Management System Act (hereinafter referred to as KeHJS). With this law, Council Directive 92/43/EEC has been transposed into Estonian law. Pursuant to order no. 163, the Government of the Republic bindingly established the circumstances stipulated in section 29, para 3 of KeHJS, which would allow the Environmental Board to issue a water permit despite the fact that the continuation of the operation of the hydroelectric plant will have an adverse effect on the Jägala nature area. Based on KeHJS §29 (3), the Government of the Republic is competent to decide whether, in the absence of alternative solutions, the action is still necessary for the public for overriding and exceptionally compelling reasons, including reasons of a social or economic nature. By order no. 163, the Government of the Republic does not claim that the activity will not have an adverse effect on the Natura area. The Environmental Board identified an adverse effect which, based on KeHJS § 29, para 2, would preclude granting an activity permit, then according to KeHJS § 29, the next step was to find out whether the issuance of an activity permit would be possible with the consent of the Government of the Republic. The Government of the Republic, not the Environmental Board, decides whether there are overriding reasons related to the public interest. Therefore the views provided in the working version of the Natura ex-post evaluation report, that such reasons do not exist, are not binding on the Government of the Republic. The Environmental Board was able to conduct the relevant analysis, but the Environmental Board cannot decide occurrence of such circumstances on behalf of the Government of the Republic. Consenting on the basis of §29 para 3 of the KeHJS is a discretionary decision. The Government of the Republic has thoroughly considered the lack of alternative solutions in order no. 163, as well as the existence of an overriding public interest and reasons related thereto. In the current case, the Government of the Republic found that the most important and exceptionally compelling reasons for the public to allow the activity are based primarily on the protection of cultural heritage and the protection of interests at the local level. Order no. 163 states the following: “The Government of the Republic is of the opinion that, despite the expected adverse effect of the activity on the area of the Natura 2000 network, in the absence of alternative solutions for the production of electricity, the expansion of the Jägala River at the Linnamäe Dam and enabling the use of hydropower at the Linnamäe Hydroelectric Power Station is necessary for the public for overriding and exceptionally compelling reasons. For the public, the overriding and exceptionally compelling reasons include ensuring the long-term and complete preservation of the Linnamäe dam, which is recognised as a cultural heritage monument, and the preservation of the surrounding archaeological heritage and cultural landscape, which has developed over a long period of time and is meaningful currently as well and needs to be preserved for future generations. Enabling the expansion of the Jägala River at the Linnamäe dam and the use of hydropower in the Linnamäe hydroelectric power plant for the production of electricity is a prerequisite that ensures the preservation of valuable cultural heritage buildings and the environment in their existing form. In its deliberations, the Government of the Republic also considered the fact that the damming of water and production of hydroelectric power at the Linnamäe HEJ is an existing or ongoing activity that was initiated before the creation of the Natura area. The contribution of the hydroelectric power plants located on the Jägala River (Linnamäe HEJ, Jägala Energy HEJ) to Estonian renewable energy production and general energy security was also considered.” In the cited order, the following is stated regarding the alternatives: “When considering the alternatives, it should also be borne in mind that electricity production at Linnamäe HEJ is not a new activity, but a continuing activity. The activity was started before the designation of the protected area and the designation of the area as a Natura area. Also important is the fact that maintaining the possibility of electricity production at the Linnamäe HEJ is a compelling prerequisite for the preservation of the Linnamäe dam, which has been recognised as a cultural heritage monument. None of the alternatives proposed in Natura's ex-post evaluation document provide this possibility. The production of electricity by alternate means, which is described in Natura's retrospective assessment document, is also not a realistic alternative in this case, because the applicant's goal is not to produce electricity in any location using any technology, but continuing to produce production at the historic Linnamäe hydroelectric plant. Paragraph 33 of the decision made by Supreme Court in administrative case no. 3-17-1739 states the following: “When considering the exception in the case of both continuing and new activities, realistic and reasonable alternatives, which are based on the goals of the applicant's activities, must be considered. The production of electricity by any other means cannot be considered as a realistic alternative to the applicant's activities because the applicant's goal is not to produce electricity in any location using any technology, but to do so precisely as it had been done at the historical hydroelectric plant. ” This position also applies in the present case, i.e. there is no reasonable alternative in this case. 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. The measures that are planned for organising the protection must be proportionate and comply with Articles 3 and 2 of the Habitats Directive. They must also be based on the fact that the existing situation does not deteriorate as a result of being designated a 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. 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? The explanation is that, when giving its consent, the Government of the Republic does not have to assess and decide whether and which compensation measures must be in force in order the activity to be approved. Providing consent on the basis of § 29 para 3 of KeHJS does not require the existence of compensation measures at the time of giving consent. The development and establishment of compensation measures is within the competence of the Environmental Board (KeHJS § 29 para 4). 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. 4. The appropriate assessment finds that, with the retention of the dam, the reproduction 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? In Order 163, the Government of the Republic pointed out that the Linnamäe dam already existed when Estonia joined the European Union and listed the area from the mouth of the Jägala River to the Jägala Stream as a Natura 2000 area. 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 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 competence of the Environmental Board and is carried out in the course of granting the water permit. 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? New permit has not yet granted due to pending court proceedings about Governmental order No 163 of 3 June 2022. The existing permit has been expanded until the end of 2023. Article 6.4 notification will be submitted to the Commission after the end of court proceedings. Yours sincerely, (signed digitally) Merilin Piipuu Undersecretary for Cultural Heritage Additional recipients: Permanent Representative of Estonia to the EU Keskkonnaministeerium Reesi Sild +372 628 2381 [email protected] Luisa Samarelli Yours: 28.04.2023 No 6-5/23/1622-2 European Commission, Directorate-General for Environment Directorate D - Biodiversity ENV.D.3 - Nature Conservation [email protected] Ours: 19.05.2023 No 12-6/658-3 In response to your inquiry: Permit extension of the Linnamäe hydropower plant Thank you for your inquiery. Answers to the questions asked are as followed. Answers to questions number 1 and 5 are provided by Ministry of the Environment 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 first permit was issued in 2002, the next permit on 15.01.2008 by Harju County Environmental Department. The second permit was granted to Eesti Energia as a special water use permit No L.VT.HA171918 in the profile of the Linnamäe dam for the production of electricity from hydropower. No EIA nor AA has been found in this regard. Section 3.10 of the special water use permit states the justification for granting the special water use permit, but unfourtanately related justifications cannot be found also due to the reorganization of institutions and changing the staff. The permit states that: „Eesti Energia AS Taastuvenergia company restored the Linnamäe HPP located at the mouth of the Jägala river in 2002. They were issued a special water use permit HA0523 (L.VT-12822), which was valid until 15.01.2008. a. The company applied for a special water use permit to continue producing electricity from hydropower in connection with the expiration of the existing permit.“ The EIA was initiated to carry out also appropriate assessment by Environmental Board in 2015 because a new water permit for hydropower production was applied for again. The EIA was terminated in 2022 taking into account the results of court case No 3-17-1739 of Administrative Board of the Estonian Supreme Court. After that Environmental Board carried out the Habitats Directive Art 6.3 and Art 6.4 assessments by itself 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 explanation is that the The Order of the Government of the Republic No. 163 dated 03.06.2022 “Consent for the Issuance of an Operating Permit for the Expansion of the Jägala River at the Linnamäe Dam and the Use of Hydropower in the Linnamäe Hydroelectric Power Station for the Suur-Karja 23 / 15076 Tallinn, Estonia / + 372 628 2222 / [email protected] / www.kul.ee / Registration No 70000941 Production of Electricity” (hereinafter Order No. 163), based on Estonian law, is a pre- administrative act. Order no. 163 was issued on the basis of § 29 (3) of the Environmental Impact Assessment and Environmental Management System Act (hereinafter referred to as KeHJS). With this law, Council Directive 92/43/EEC has been transposed into Estonian law. Pursuant to order no. 163, the Government of the Republic bindingly established the circumstances stipulated in section 29, para 3 of KeHJS, which would allow the Environmental Board to issue a water permit despite the fact that the continuation of the operation of the hydroelectric plant will have an adverse effect on the Jägala nature area. Based on KeHJS §29 (3), the Government of the Republic is competent to decide whether, in the absence of alternative solutions, the action is still necessary for the public for overriding and exceptionally compelling reasons, including reasons of a social or economic nature. By order no. 163, the Government of the Republic does not claim that the activity will not have an adverse effect on the Natura area. The Environmental Board identified an adverse effect which, based on KeHJS § 29, para 2, would preclude granting an activity permit, then according to KeHJS § 29, the next step was to find out whether the issuance of an activity permit would be possible with the consent of the Government of the Republic. The Government of the Republic, not the Environmental Board, decides whether there are overriding reasons related to the public interest. Therefore the views provided in the working version of the Natura ex-post evaluation report, that such reasons do not exist, are not binding on the Government of the Republic. The Environmental Board was able to conduct the relevant analysis, but the Environmental Board cannot decide occurrence of such circumstances on behalf of the Government of the Republic. Consenting on the basis of §29 para 3 of the KeHJS is a discretionary decision. The Government of the Republic has thoroughly considered the lack of alternative solutions in order no. 163, as well as the existence of an overriding public interest and reasons related thereto. In the current case, the Government of the Republic found that the most important and exceptionally compelling reasons for the public to allow the activity are based primarily on the protection of cultural heritage and the protection of interests at the local level. Order no. 163 states the following: “The Government of the Republic is of the opinion that, despite the expected adverse effect of the activity on the area of the Natura 2000 network, in the absence of alternative solutions for the production of electricity, the expansion of the Jägala River at the Linnamäe Dam and enabling the use of hydropower at the Linnamäe Hydroelectric Power Station is necessary for the public for overriding and exceptionally compelling reasons. For the public, the overriding and exceptionally compelling reasons include ensuring the long-term and complete preservation of the Linnamäe dam, which is recognised as a cultural heritage monument, and the preservation of the surrounding archaeological heritage and cultural landscape, which has developed over a long period of time and is meaningful currently as well and needs to be preserved for future generations. Enabling the expansion of the Jägala River at the Linnamäe dam and the use of hydropower in the Linnamäe hydroelectric power plant for the production of electricity is a prerequisite that ensures the preservation of valuable cultural heritage buildings and the environment in their existing form. In its deliberations, the Government of the Republic also considered the fact that the damming of water and production of hydroelectric power at the Linnamäe HEJ is an existing or ongoing activity that was initiated before the creation of the Natura area. The contribution of the hydroelectric power plants located on the Jägala River (Linnamäe HEJ, Jägala Energy HEJ) to Estonian renewable energy production and general energy security was also considered.” In the cited order, the following is stated regarding the alternatives: “When considering the alternatives, it should also be borne in mind that electricity production at Linnamäe HEJ is not a new activity, but a continuing activity. The activity was started before the designation of the protected area and the designation of the area as a Natura area. Also important is the fact that maintaining the possibility of electricity production at the Linnamäe HEJ is a compelling prerequisite for the preservation of the Linnamäe dam, which has been recognised as a cultural heritage monument. None of the alternatives proposed in Natura's ex-post evaluation document provide this possibility. The production of electricity by alternate means, which is described in Natura's retrospective assessment document, is also not a realistic alternative in this case, because the applicant's goal is not to produce electricity in any location using any technology, but continuing to produce production at the historic Linnamäe hydroelectric plant. Paragraph 33 of the decision made by Supreme Court in administrative case no. 3-17-1739 states the following: “When considering the exception in the case of both continuing and new activities, realistic and reasonable alternatives, which are based on the goals of the applicant's activities, must be considered. The production of electricity by any other means cannot be considered as a realistic alternative to the applicant's activities because the applicant's goal is not to produce electricity in any location using any technology, but to do so precisely as it had been done at the historical hydroelectric plant. ” This position also applies in the present case, i.e. there is no reasonable alternative in this case. 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. The measures that are planned for organising the protection must be proportionate and comply with Articles 3 and 2 of the Habitats Directive. They must also be based on the fact that the existing situation does not deteriorate as a result of being designated a 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. 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? The explanation is that, when giving its consent, the Government of the Republic does not have to assess and decide whether and which compensation measures must be in force in order the activity to be approved. Providing consent on the basis of § 29 para 3 of KeHJS does not require the existence of compensation measures at the time of giving consent. The development and establishment of compensation measures is within the competence of the Environmental Board (KeHJS § 29 para 4). 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. 4. The appropriate assessment finds that, with the retention of the dam, the reproduction 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? In Order 163, the Government of the Republic pointed out that the Linnamäe dam already existed when Estonia joined the European Union and listed the area from the mouth of the Jägala River to the Jägala Stream as a Natura 2000 area. 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 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 competence of the Environmental Board and is carried out in the course of granting the water permit. 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? New permit has not yet granted due to pending court proceedings about Governmental order No 163 of 3 June 2022. The existing permit has been expanded until the end of 2023. Article 6.4 notification will be submitted to the Commission after the end of court proceedings. Yours sincerely, (signed digitally) Merilin Piipuu Undersecretary for Cultural Heritage Additional recipients: Permanent Representative of Estonia to the EU Keskkonnaministeerium Reesi Sild +372 628 2381 [email protected]