MOF, Alm.del - 2023-24 - Endeligt svar på spørgsmål 782: Spm. om kopi af de dokumenter, der er givet til DR i aktindsigt vedrørende udledning af miljøfarlige stoffer, Cheminova m.v., og som er anvendt af 21Søndag og DR-nyhederne de seneste par uger

Miljøministeriet

ktd

eta

Akttitel: Talking point til mødet med KOM

Aktnummer: 16

AktiD:

Dato:

Type:

Dokumenter:

411193

10-05-2023 08:12:28

Udgående

1] Godkendelsesdokumenl.pdf (MEDTAGES IKKE)

[2] Talking points.docx (MEDTAGES IKKE)

[3] Background note on non-deterioration under the WFD final ver2.docx

[4] Bilag 3- ds01473.enl2.doc

[5] Aktdokument.html (MEDTAGES IKKE)

Den 20 februar 2024

AKT 411193

[Talking point til mødet med KOM

]

Dokument 3

[

Background

note on non-deterioration..

Ministry of Environment

of Denmark

Department

Vand og Klimatilpasning

Case No 2023-4355

Ref. kirst, rurab, bketu, limni

May 8

2023

Background note on the obligation of non-deterioration

under the Water Framework Directive

The issue

Does

Article 4 of the Water Framework Directive, as interpreted by the Court, allow for an

individual assessment of the significance of an addition of a substance to a specific water

body in order to establish if such addition constitutes “deterioration of the status”, when the

EQS for that substance has already been exceeded and the water body has thus been

ciassified in the lowest class?

Background

In February the Danish Environment and Food Board of Appeal ‘(the Board of Appeal) ruled

that y additional impact on or discharge to a water body per se will constitute “deteriora

tion of status” If the quality element concerned is already in the lowest class.

The Board of Appeal based its reasoning on

C-461/13, C-535/18 and C-525/2o.

The European

Court of Justice was flot requested to give a preliminary ruling thereon.

According to The Board of Appeal’s ruling, any discharge of a substance to a waterbody must

be regarded as a ‘deterioration in the status’ of the water body contrary to Articie

4(1)

of the

Water Framework Directive when the EQS for that substance has already been exceeded and

the water body is thus in the lowest possible class. The Board of Appeal emphasized that the

amount of the substance is flot decisive when the EQS has already been exceeded, as any

additional amount will result in deterioration.

This leads to a situation where no individual assessment of the actual significance of an

addition of a substance to the specific water body shall be conducted. Thus, there is no

The Environment and Food Board of Appeal is an independent Danish Court-like institution within

the field of nature, environment, agriculture, fisheries and food. The rulings are binding for state and

local authorities’ administration and authorization of plans and projects.

Ministiy of Environment

Phone +4538

142142

•

Frederiksholms Kanal 26

1220

Copenhagen K Denmark

CVR

12854358

KAN 5798000862005 [email protected]. www.mim.dk

assessment of the actual effect on the quality element/EQS at water body level due to the

addition of that substance.

Hence, it will flot be possible to take the significance of the impact or diseharge on the quality

element at water body level into account when it is already in the lowest class. A specific

individual discharge causing local pollution will constitute deterioration, without any

assessment of the significance of the effect.

Tt is the Ministry of Environment’s view that the Board of Appeal’s ruling is flot consistent

with the explanation of the obligation to prevent deterioration given in documerit DS

1473/12,

the Commission non-paper “The application of the combined approach and the

non-deterioratiori obligation: the case of ubiquitous PBTs’ when it comes to the level for

assessing2 if deterioration of status will occur.

The Ministry of Environment understands that the interpretation given by the Commission

in the above-mentioned flon-paper is from

2012,

i.e. before the key rulings by the

ECJ (C

461/13,

C-535/i8,

C-559/19

and

C-525/2o).

Therefore, we would like to know how the Commission

views

the deterioration issue flow, i.e,

whether Artjcle 4

(i)

allows for an individual assessment in the abovementioned situation.

1473/12,

p. : The obIiation to prevent deterioration.

Articie

4.1(a)(i) of

the

‘WFD

requires Member States to take measures to prevent deterioration of the status of

surface water bodies. There are two

important

elements

in this obligation:

the status is classified as failing to achieve

Deterioration refers to status. As regards chemical status

good”.

Status refers to a surface water body. Indeed, the water body, as defined

WFD

Articie

2.10

and

delineated by Member States according to WFD Articie 5 and

Annex

II sectiofl

1.1,

constitute the unit on

which the assessment of status is carried out (see Articies

2.17, 2.18, Annex

section 1.4.3).

AKT 411193

[Talking point til mødet med KOM

]

Dokument 4

[

Bilag 3

ds01473.enl2]

COUNCIL OF

THE EUROPEAN UNION

GENERAL SECRETARIAT

Brussels, 21 June 2012

BS 1473/12

Interinstitutional File:

2011/0429 (COD)

LIMITE

MEETING DOCUMENT

from:

General Secretariat

to:

Working Party on the Environment

on:

2July2012

Subject:

Proposal for a Directive of the European Parliament and of the Council amending

Directives

2000/60/EC

and 2008/105/EC as regards priority substances in the

field of water policy

With a view to the Working Party meeting on 2 July 2012, delegations will find in Annex a non

paper of the Commission’s Services on the combined approach in the case of ubiquitous PBTs

(Article 8a of the above-mentioned proposal).

DS 1473/12

CM/nv

1I’

r’

i A

LIMITE

ANNEX

Commission non-paper

The application of the combined approach and the non-deterioration obligation:

the case of ubiquitous PBTs

Substances that behave as ubiguitous persistent, bioaccumulative and toxic (uPBTs)

The Commission proposal

identifies a number of substances as behaving as ubiquitous PBTs.

These

ubiquitous substances, some

ofthem capable of long-range transport, may be found for

decades in the aquatic environment at levels posing a significant risk, even ifextensive measures to

reduce or eliminate emissions have already been taken. Ali are identified as priority hazardous

substances, therefore subject to the alm that their emissions, discharges and losses to the aquatic

environment be phased out.

Examples ofthese substances are:

—

Polybrominated diphenylethers (pBDEs): used for many years as flame retardants in many

consumer, transport and construction products, some ofthem are identified as priority

hazardous substances under the WFD and are banned under REACK and the POPs regulation.

These substances are ubiquitous in the aquatic environment mainly due to leaching from

many products in use that contain them.

Mercury: a naturally occurring substance; measures have been taken that have resulted in

significant decreases ofemissions from anthropogenic uses to the aquatic environment over

the past two decades. Uses are still authorised (chior-alkali industry, dental amalgam, etc.) but

progressively declining. Atmospheric deposition constitutes a main source ofaquatic

pollution in many areas of Europe (even remote).

The guestion

A question has been raised regarding application of the non-deterioration obligation and the

combined approach for uPBTs. The postulated problem is exemplified in the following statements,

which are discussed below in the context of broader expianation.

Statement 1: Any new authorisation of an urban waste water treatment plant (UWWTP)

would be against the obligation to prevent deterioration because any discharge will contain

some (even minute) quantities of ubiquitous priority hazardous substances (such as pBDEs or

mercury).

Statement 2: Even if a permit were given for a new waste water treatment plant, the emission

limit values for certain substances (such as pBDEs or mercury), resulting from back

caiculating from the proposed EQS, would be so strict that they would be unfeasible to meet.

60 19/12

Art.

2(5).

DS 1473/12

CM/nv

ANNEX

LIMITE

The obligation to prevent deterioration

Article 4.1(a)(i) of the WFD requires Member States to take measures to prevent the deterioration

of the status ofsurface water bodies. There are two important elements in this obligation:

—

deterioration refers to status. As regards chemical status, this is defined in WFD Articie 2.24

and Annex V section 1.4.3. “Good” chemical status is achieved when ali environmental

quality standards set at EU level are flot exceeded. If any of these EU standards are exceeded,

the status is ciassified as “failing to achieve good”.

status refers to a surface water body. Indeed, the water body, as defined in WFD Article 2.10

and delineated by Member States according to WFD Articie 5 and Annex II section 1.1,

constitutes the unit on which the assessment of status is carried out (see Articies 2.17, 2.18,

Annex V section 1.4.3).

Therefore, the deterioration of chemical status refers to a situation where the pollution ofa water

body increases from flot cxceeding any EQS set at EU ievel to exceeding one or more. This would

mean that the chemical status would deteriorate from “good” to “faiiing to achieve good”. The

obligation to prevent deterioration of chemical status refers to the change from good to failing to

achieve good at the water body level. It therefore does flot target specific individual discharges

causing local increases in pollution

1•

Because both diffuse and point sources are responsible for the cmissions of uPBTs, acting at the

levei of individual point sources wouid, in the case of most water bodies at least, not achieve the

objective of good chemical status. And given the ubiquity and expected widespread failure of the

EQSs ofthese substances, deterioration of status would not be likeiy for uPBTs as most water

bodies should aiready be ciassified as failing to achieve good chemical status. It can in fact aiso be

argued that the construction ofa new collecting system and UWWTP would simply concentrate at

one point the discharges that previously came from a multitude of single waste water systems

(e.g. septic tanks). The emissions to the aquatic environment ofpollutants such as mercury would

therefore flot increase, but rather globaliy decrcase due to the more advanced treatment at the new

UWWTP.

The combined approach

The combined approach in Article 10 of the WFD establishes a framework for emission controls

and quality objectives to work together in a coordinated way. Minimum controls are set in EU

legislation for the most significant emissions (from point and diffuse sources), but these should be

tightened where they are not sufficient to meet the quality objectives. The ultimate purpose is to

ensure a high level ofprotection of the aquatic environment whilst providing a level playing field

for the most significant emissions.

WFD Article 10.3 provides that where the attainment ofa quality objective or standard requires

stricter conditions than those set by the legislation listed in WFD Articie 10.2, Member States need

to set more stringent emission controls accordingly.

In addition to the non-deterioration obligation in WFD Articie 4.1(a)(i), WFD

Article 4.1(a)(iv) and EQSD Article 3(3) protect against increases of pollution at water body

level.

DS 1473/12

ANNEX

CM/nv

DG E IA

LIMITE

Whilst the approach can casily be applied where emission patterns are simple, complex patterns, for

example where both diffuse and point-source emissions are involved, may make it less easy to

apply. There is in any case no obligation to set emission limit values for ali substances in al!

discharges.

In particular, it should be rioted that Articie 10.3 does flot target specific individual discharges.

Member States can choose to apply the most effective measures to achieve the WFD objectives.

They could decide that tightening the emission controls on individual discharges (such as

discharges from UWWTPs) for a particular substance would not be effective

ifl

addressing the

pollution problem (and thus the WFD objectives), and decide to address the pollution at its primary

source instead of”end-ofpipe”.

The source control measures already taken and/or in the pipeline for uPBTs (such as bans and

restrictions on tise) will ensure that their emissions progressively decline at the level of the river

basins and water bodies. Ultimately, the source control measures will reduce ali emissions (diffuse

and point source), including from urban waste water.

It should also be noted that there is no obligation to back-calculate emission limit values from EQS.

This is particularly the case with biota standards for bioaccumulative substances such as mercury,

where back-caiculation would result in very low EQS for water because of high uncertainty.

The obligations referred to in the above paragraphs are of course without prejudice to the

application of the exemptions in WFD Articles 4.4 and 4.5 If the conditions therein apply.

DS 1473/12

AEX

CM/nv

DGEIA

LIMITE

Miljøministeriet

Aktdetaljer

Akttitel: Kort samtale med Claudia Olazabal, Kommission

Aktnummer: 15

Akt ID:

Dato:

Type:

Dokumenter:

425595

05-06-2023 09:53:10

Intern

[1] Kort samtale med Claudia Olazabal, Kommission.eml (MEDTAGES IKKE)

Den 20. februar 2024

Miljøministeriet

Aktdetaljer

Akttitel: Ang: Kort samtale med Claudia Olazabal, Kommission

Aktnummer: 14

Akt ID:

Dato:

Type:

Dokumenter:

427145

05-06-2023 11:59:13

Intern

[1] Ang Kort samtale med Claudia Olazabal, Kommission.eml (MEDTAGES IKKE)

Den 20. februar 2024

Miljøministeriet

Aktdetaljer

Akttitel: Vs: Background note for the meeting on 10 May after the SCG

meeti ng

Aktnummer: 13

AktiD:

Dato:

Type:

Dokumenter:

411917

10-05-2023 17:19:03

Intern

[1] Background note for the meeting on 10 May after the SCG-meeting.html

[2] Background note on non-deterioration under the WFD final ver2.docx

[3] ds01473.enl2.doc

[4] RE: Request for a meeting re. the concept of deterioration in the WFD (MIM Id nr.: 397031 ).eml

Den 20. februar 2024

AKT 411917

[Vs: Background note for the meeting on 10 May after the SCG-meeting]

Dokument 1

[

...

Til:

Cc:

Katrine Rafn ([email protected]), Cecilie Spanner Rydeng ([email protected]), Rune Raun-Abildgaard

([email protected]), Lise Marie Johannessen ([email protected]), Benjamin Kelstrup Turner ([email protected]), Kirsten

Vielwerth ([email protected])

Kirsten Vielwerth ([email protected])

Fra:

Titel: Background note for the meeting on 10 May after the SCG-meeting

Sendt: 08-05-2023 10:44

Dear Claudia, dear

Enciosed, please find a background note on the topic we would like to focus on in the meeting on Wednesday.

As requested, I forward a link to the ruling by the Danish Environment and Food Board of Appeal. It is in Danish sorry

for that but hopefully you have access to better translation tools than me.

Link to the ruling by the Board:

Afgørelse Miljø- og Fødevareklagenævnet (naevneneshus.dk)

Both Katrine Rafn and I are looking forward to meeting you.

Kind regards, Kirsten

Med venlig hilsen

Kirsten Vielwerth

Vand og Klimatilpasning

Miljøministeriets Departementet

+45 41 28 16 761 [email protected]

Miljøministeriet

Vand og Klimatilpasning

www.mim.dk

Miljøministeriets Departementet

Vester Voldgade 123

DK 1552 København V

Tlf. +45 38 142 142

I [email protected] I

AKT 411917

[Vs: Background note for the meeting on 10 May after the SCG-meeting]

Dokument 2

[

Ministry of Environment

of Denmark

Department

Vand og Klimatilpasning

Case No 2023-4355

Ref. kirst, rurab, bketu, limni

May 8

2023

Background note on the obligation ofnon-deterioration

under the Water Framework Directive

The issue

Does

Articie

4 of the Water Framework Directive, as interpreted by the Court, allow for an

individual assessment of the significance of an addition of a substance to a specific water

body in order to establish if such addition constitutes “deterioration of the status”, when the

EQS for that substance has already been exceeded and the water body has thus been

ciassified in the lowest class?

Background

In February the Danish Environment and Food Board of Appeal’ (the Board of Appeal) ruled

that jjy additional impact on or discharge to a water body per se will constitute “deteriora

tion of status” if the quality element concerned is already in the lowest class.

The Board of Appeal based its reasoning on

C-461/13,

C-535/18 and

C-525/2o.

The European

Court of Justice was not requested to give a preliminary ruling thereon.

According to The Board of Appeal’s ruling, any discharge ofa substance to a waterbody must

be regarded as a ‘deterioration in the status’ of the water body contrary to Articie

4(1)

of the

Water Framework Directive when the EQS for that substance has already been exceeded and

the water body is thus in the lowest possible class. The Board of Appeal emphasized that the

amount of the substance is flot decisive when the EQS has already been exceeded, as any

additional amount will result in deterioration.

This leads to a situation where no individual assessment of the actual significance of an

addition of a substance to the specific water body shall be conducted. Thus, there is no

The Environment and Food Board of Appeal is an independent Danish Court-like institution within

the field of nature, environment, agriculture, fisheries and food. The rulings are binding for state and

local authorities’ administration and authorization of plans and projects.

Ministry of Environment. Frederiksholms Kanal

•

1220

Copenhagen K Denmark

Phone +4538

14 2142

CVR

12854358

EAN

5798000862005.

[email protected]. svww.mim.dk

assessment of the actual effect on the quality element/EQS at water body level due to the

addition of that substance.

Hence, it will flot be possible to take the significance of the impact or discharge on the quality

element at water body level into account when it is already in the lowest class. A specific

individual discharge causing local pollution

will

constitute deterioration, without any

assessment of the significance of the effect.

Tt is the Ministry of Environment’s view that the Board of Appeal’s ruling is flot consistent

with the explanation of the obligation to prevent deterioration given in document DS

1473/12,

the Commission non-paper

“The applicatiorz of the combined approach and the

non-deteriorcztion obligation: the case of ubiquitous PBTs’

when it comes to the level for

assessing2 if deterioration of status will occur.

The Ministry of Environment understands that the interpretation given by the Commission

in the above-mentioned non-paper is from

2012,

i.e. before the key rulings by the

ECJ (C

461/13,

C-535/18,

C-559/19

and

C-525/2o).

Therefore, we would like to know how the Commission views the deterioration issue now, i.e,

whether Article 4

(i)

allows for an individual assessment in the abovementioned situation.

1473/12,

p. : The obligation to prevent deterioration.

Article

4.1(a)(i) of

the

WFD

requires Member States to take measures to prevent deterioration of the status of

surface water bodies. There are two important elements in this obligation:

the status is ciassified as failing to achieve

As regards chemical status

Deterioration refers to

good”.

Status refers to a surface water body. Indeed, the water body, as defined in

WFD

Article

2.10

and

delineated by Member States according to WFD Articie and Annex II section

1.1,

constitute the unit on

which the assessment of status is carried out (seeArticles

2.17, 2.18, Annex Vsection 1.4.3).

AKT 411917

[Vs: Background note for the meeting on 10 May after the SCG-meeting]

Dokument 3

[

COUNCIL OF

THE EUROPEAN UNION

GENERAL SECRETARIAT

Brussels, 21 June 2012

DS 1473/12

Interinstitutional File:

2011/0429 (COD)

LIMITE

MEETING DOCUMENT

from:

General Secretariat

to:

Working Party on the Environment

on:

2Ju1y2012

Subject:

Proposal for a Directive of the European Parliament and of the Council amending

Directives 2000/60/EC and 2008/105/EC as regards priority substances in the

field of water policy

With a view to the Working Party meeting on 2 July 2012, delegations will find in Annex a non

paper of the Commissions Services on the combined approach in the case of ubiquitous PBTs

(Articie 8a of the above-mentioned proposal).

DS 1473/12

CM/nv

DGEIA

LIMITE

ANNEX

Commission non-paper

The application of the combined approach and the non-deterioration obligation:

the case of ubiquitous PBTs

Substances that behave as ubiguitous persistent, bioaccumuiative and toxic (uPBTs)

The Commission proposal identifies a number of substances as behaving as ubiquitous PBTs.

These ubiquitous substances, some ofthem capabie of long-range transport, may be found for

decades in the aquatic environment at levels posing a significant risk, even ifextensive measures to

reduce or eliminate emissions have already been taken. Ali are identified as priority hazardous

substances, therefore subject to the aim that their emissions, discharges and losses to the aquatic

environment be phased out.

Examples ofthese substances are:

—

Polybrominated diphenylethers (pBDEs): used for many years as flame rctardants in many

consumer, transport and construction products, some ofthem are identified as priority

hazardous substances under the WFD and are banned under REACH and the POPs regulation.

These substances are ubiquitous in the aquatic environment mainly due to leaching from

many products in use that contain them.

Mercury: a naturally occurring substance; measures have been taken that have resuited in

significant decreases ofemissions from anthropogenic uses to the aquatic environment over

the past two decades. Uses are stiii authorised (chlor-alkali industry, dental amaigam, etc.) but

progressively declining. Atmospheric deposition constitutes a main source ofaquatic

pollution in many areas of Europe (evcn remote).

The guestion

A question has been raised regarding application of the non-deterioration obligation and the

combined approach for uPBTs. The postulated problem is exemplified in the following statemcnts,

which are discussed below in the context of broader explanation.

Statement

Any new authorisation of an urban waste water treatment plant (UWWTP)

would be against the obligation to prevent deterioration because any discharge will contain

some (even minute) quantities of ubiquitous priority hazardous substances (such as pBDEs or

mercury).

Statement 2: Even if a permit were given for a new waste water treatment plant, the emission

limit values for certain substances (such as pBDEs or mercury), resulting from back

caiculating from the proposed EQS, would be so strict that they would be unfeasible to meet.

6019/12

Art.

2(5).

DS 1473/12

ANNEX’

CM/nv

DGEIA

LIMITE

The obligation to prevent deterioration

Articie 4.1(a)(i) of the WFD requires Member States to take measures to prevent the deterioration

of the status of surface water bodies. There are two important elements in this obligation:

—

deterioration refers to status. As regards chemical status, this is defined in WFD Articie 2.24

and Annex V section 1.4.3. “Goodt’ chemical status is achieved when ali environmental

quality standards set at EU level are flot exceeded. If any ofthese EU standards are exceeded,

the status is ciassified as “failing to achieve good”.

status refers to a surface water body. Indeed, the water body, as defined in WFD Articie 2.10

and delineated by Member States according to WFD Article 5 and Annex II section 1.1,

constitutes the unit on which the assessment of status is carried out (see Articles 2.17, 2.18,

Annex V section 1.4.3).

Therefore, the deterioration of chemical status refers to a situation where the pollution ofa water

body increasés from flot exceeding any EQS set at EU level to exceeding one or more. This would

mean that the chemical status would deteriorate from “good” to “failing to achieve good”. The

obligation to prevent deterioration of chemical status refers to the change from good to failing to

achieve good at the water body level. It therefore does flot target specific individual discharges

causing local increases in pollution

Because both diffuse and point sources are responsible for the emissions of uPBTs, acting at the

level of individual point sources would, in the case of most water bodies at least, flot achieve the

objective of good chemical status. And given the ubiquity and expected widespread failure of the

EQSs ofthese substances, deterioration of status would not be likely for uPBTs as most water

bodies should already be classified as failing to achieve good chemical status. It can in fact also be

argued that the construction ofa new collecting system and UWWTP would simply concentrate at

one point the discharges that previously came from a multitude of single waste water systems

(e.g. septic tanks). The emissions to the aquatic environment ofpollutants such as mercury would

therefore not increase, but rather globally decrease due to the more advanced treatment at the new

UWWTP.

The combined approach

The combined approach in Article 10 of the WFD establishes a framework for emission controls

and quality objectives to work together in a coordinated way. Minimum controls are set in EU

legislation for the most significant emissions (from point and diffuse sources), but these should be

tightened where they are not sufficient to meet the quality objectives. The ultimate purpose is to

ensure a high level ofprotection of the aquatic environment whilst providing a level playing field

for the most significant emissions.

WFD Article 10.3 provides that where the attainment ofa quality objective or standard requires

stricter conditions than those set by the legislation listed in WFD Article 10.2, Member States need

to set more stringent emission controls accordingly.

‘

In addition to the non-deterioration obligation in WFD Article 4.1(a)(i), WFD

Article 4.I(a)(iv) and EQSD Article 3(3) protect against increases of pollution at water body

level.

CM/nv

DG E 1A

DS 1473/12

ANNEX

LIMITE

Whilst the approach can easily be applied where emission patterns are simple, complex patterns, for

example where both diffuse and point-source emissions are involved, may make it less easy to

apply. There is in any case no obligation to set emission limit values for al! substances in ali

discharges.

In particular, it should be noted that Article 10.3 does flot target specific individual discharges.

Member States can choose to apply the most effective measures to achieve the WFD objectives.

They could decide that tightening the emission controls on individual discharges (such as

discharges from UWWTPs) for a particular substance would not be effective in addressing the

pollution problem (and thus the WFD objectives), and decide to address the pollution at its primary

source instead of “end of pipe”.

The source control measures already taken and/or in the pipeline for uPBTs (such as bans and

restrictions on use) will ensure that their emissions progressively decline at the leve! of the river

basins and water bodies. Ultimately, the source control measures will reduce al! emissions (diffuse

and point source), inc!uding from urban waste water.

It should also be noted that there is no obligation to back-calculate emission limit values from EQS.

This is particularly the case with biota standards for bioaccumulative substances such as mercury,

where back-calculation would result in very low EQS for water because of high uncertainty.

The obligations referred to in the above paragraphs are of course without prejudice to the

app!ication of the exemptions in WFD Articles 4.4 and 4.5 if the conditions therein app!y.

DS 1473/12

ANNEX

CM/nv

DGEIA

UMITE

AKT 411917

[Vs: Background note for the meeting on 10 May after the SCG-meeting

]

Dokument 4

[

...

Til:

Cc:

[email protected] (Kirsten Vielwerth)

[email protected] (Katrine Rafn), [email protected] (Cecilie Spanner Rydeng),

OLAZABAL Claudia ([email protected])

Fra:

Titel: RE: Request for a meeting re. the concept of deterioration in the WFD (MIM ld nr.: 397031)

Sendt: 03-05-2023 16:56

Dear Kirsten

I can confirm that we can meet after the SCG meeting. We will find a quite corner in the meeting building

for our discussion.

It would be very good to receive prior to that meeting the ruling of the national Environment and Food

Board of Appeal you refer too.

Thanks and I look forward to our conversation.

Best regards

Claudia Olazbal

From: Kirsten Vielwerth <[email protected]>

Sent: Friday, April 21, 2023 3:11 PM

To: OLAZABAL Claudia (ENV) <[email protected]>;

Cc: Kirsten Vielwerth <[email protected]>; Katrine Rafn <[email protected]>; Cecilie Spanner Rydeng

Subject: Request for a meeting re. the concept of deterioration in the WFD (MIM Id nr.: 397031)

Dear Claudia, dear

Would it be possible for you to schedule a short meeting (around 30 minutes) with us after the SCG-meeting 10

May, please? A different time around 10. 11. May could also be possible, if that would suit you better.

Danish participants will be Head of Division for Water and Climate Adaptation, Water Director Katrine Rafn, and

myself.

We would like to talk to you about Articie 4(1) of the WFD.

The urgency is due to our national Environment and Food Board of Appeal has issued a final ruling on

deterioration in light of the ECJ case law, that has raised doubt among the Danish authorities in relation to their

administration and permitting, eg. in relation to big energy projects, etc.

We will be happy to send you a background note with more information in due time for a meeting.

Hope to hear from you soon.

Best regards,

Kirsten Vielwerth

Water and Climate Adaptation

Department of the Ministry of Environment

+45

41 28 16

761

[email protected]>

Ministry of Environment

Water and Cilmate Adaptationj Department of the Environment Ministry

142 142

www.mim.dk

Vester Voldgade 123

DK 1552 Copenhagen V

Tlf. +45 38

st2

Aktdetaljer

Miljøministeriet

Akttitel: Vs: Background note for the meeting on 10 May after the SCG

meeting

Aktnummer: 12

AktiD:

Dato:

Type:

Dokumenter:

411916

10-05-2023 17:18:59

Intern

[1] Background note for the meeting on 10 May after the SCG-meeting.html (MEDTAGES IKKE)

[2] Background note on non-deterioration under the WFD final ver2.docx (MEDTAGES IKKE)

[3] ds01473.enl2.doc (MEDTAGES IKKE)

[4] RE: Request for a meeting re. the concept of deterioration in the WFD (MIM Id nr.: 397031 ).eml

(MEDTAGES IKKE)

Den 20. februar 2024

Miljøministeriet

Aktdetaljer

Akttitel: RE: Request for a meeting re. the concept of deterioration in

the WFD

Aktnummer: 11

AktiD:

Dato:

Type:

Dokumenter:

431322

03-05-2023 16:56:53

Indgàende

(1] RE Request for a meeting re. the concept of deterioration in the WFD (MIM Id nr. 397031).eml

Den 20. februar 2024

AKT 431322

[RE: Request for a meeting re. the concept of deterioration in the WFD]

Dokument i

[R...

Til:

Cc:

Kirsten Vielwerth ([email protected])

,‘,‘

(‘.iI

Fra:

Titel:

E-mailtitel:

Sendt:

c.europa.eu)

claudia.C

c.europa.eu (claudia.O

RE: Request for a meeting re. the concept of deterioration in the WFD

RE: Request for a meeting re. the concept of deterioration in the WFD (MIM Id nr.: 397031)

03-05-2023 16:56

Dear Kirsten

I can confirm that we can meet after the SCG meeting. We will find a quite corner in the meeting building

for our discussion.

It would be very good to receive prior to that meeting the ruling of the national Environment and Food

Board of Appeal you refer too.

Thanks and I look forward to our conversation.

Best regards

Claudia Olazbal

From: Kirsten Vielwerth <[email protected]>

Sent: Friday, April 21, 2023 3:11 PM

To: OLAZABAL Claudia (ENV) <[email protected]>;

Cc: Kirsten Vielwerth <[email protected]>; Katrine Rafn <[email protected]>; Cecilie Spanner Rydeng

Subject: Request for a meeting re. the concept of deterioration in the WFD (MIM Id nr.: 397031)

Dear Claudia, dear

Would it be possible for you to schedule a short meeting (around 30 minutes) with us after the SCG-meeting 10

May, please? A different time around 10. 11. May could also be possible, if that would suit you better.

Danish participants will be Head of Division for Water and Climate Adaptation, Water Director Katrine Rafn, and

myseif.

We would like to talk to you about Article 4(1) of the WFD.

The urgency is due to our national Environment and Food Board of Appeal has issued a final ruling on

deterioration in light of the ECJ case law, that has raised doubt among the Danish authorities in relation to their

administration and permitting, e.g. in relation to big energy projects, etc.

We will be happy to send you a background note with more information in due time for a meeting.

Hope to hear from you soon.

Best regards,

Kirsten Vielwerth

Water and Climate Adaptation

Department of the Ministry of Environment

+45 41 28 16 76

[email protected]>

Ministry of Environment

Water and Climate Adaptation Department of the Environment Ministry Vester Voldgade 123

142 142 [email protected]

wwwmim.dk

DK 1552 Copenhagen V

Tlf. +45 38

Miljøministeriet

Aktdetaljer

Akttitel: Follow-up on the DK deterioration questions

Aktnummer: 10

AktiD:

Dato:

Type:

Dokumenter:

421067

29-05-2023 12:21:37

Udgående

[1] Aktdokument.pdf

[2] Letter to COM with DK questions on deterioration.docx

[3] Translation of Environmental and Food Board of Appeal 22-02461 wad Astra.docx

[4] Aktdokument.html

Den 20. februar 2024

AKT 421067

[

Follow-up on the DK deterioration questions]

Dokument i

[Aktdokument]

[email protected] ([email protected])

Katrine Rafn ([email protected]), Paolo Perotti ([email protected]), Rikke Slot Benyahia ([email protected])

Cc:

Kirsten Vielwerth ([email protected])

Fra:

Titel: DK questions an deterioration in the WFD

Sendt: 16-05-2023 18:38

Bilag: Letter to COM with DK questions an deterioration.docx; Translation of Environmental and Food Boarcl of Appeal

22-02461 w ad Astra.docx;

Dear Claudia, dear

Enciosed please find the Danish questions on the concept of deterioration in the Water Framework Directive as well as

the English translation of the ruling by the Environment and Food Board of Appeal.

We would appreciate it greatly if you could get back to us urgently, as ali permitting is put on hold for now.

Til:

Kind regards,

Kirsten Vielwerth

Water and Climate Adaptation

Department of the Ministry of Environment

+45 41 28 16 761 [email protected]

Water and Climate Adaptation

www.mim.dk

Ministry of the Environment

Departement of the Ministry of Environment

Vester Voldgade 123

DK 1552 København V

Tlf. +45 38 142 142

AKT 421067

[Follow-up on the DK deterioration questions]

Dokument 2

[Letter to COM with DK ques..

Ministry of Environment

of Denmark

Department

Water and Climate Adaptation

Case No

2023-4355

Ref. kirst, rurab, limni

May 16

2023

Claudia.Olazabal(iec.euroDa.eu

Questions on the Water Framework Directive re. deterioration

Dear Claudia Olazabal, dear

Thank you for taking the time to talk to Head of Division, Katrine Rafn and myself

10.

May

2023

on the concept of deterioration in Articie 4 of the Water Framework

Directive.

As agreed upon in the meeting, we forward our questions in writing, and we would

appreciate to get your view and interpretations back in writing. We would be grate

ful ifyou would send your reply shortly, as this will help inform our assessment of

the way forward. Wc are aware that the statements will represent the views of the

DG ENV of the Commission, and that the European Court of Justice is the sole

authority on interpretation of the aquis.

.1.

We also forward ruling

22/02461

from the Danish Environment and Food Board

of Appeal in English1. The most relevant part is:

3.2.3

Effect on targeted

surface water bodies, pages 38 43, in particular the three sections on page 43

which we have highlighted.

—

For your information, the Environment and Food Board of Appeal is an indepen

dent court-like institution within the field of nature, environment, agriculture,

fisheries and food. The rulings are binding for state and local authorities’

administration and authorization of plans and projects.

The

questions:

•

Does Article 4 of the Water Framework Directive, as interpreted by the

ECJ, allow for an individual assessment of the significance of an addition

of a substance to a specific water body in order to establish if such addition

constitutes “deterioration of the status”, when the EQS for that substance

has already been exceeded and the water body has thus been classified in

the lowest class?

o In other words; will it only constitute deterioration contrary to

Article 4 if the discharge will lead to an increase in the

Section

3.2.3

Effect on the targeted surface water body has been translated by a

professional team of translators, whereas

the

rest of the ruling is google translated.

Ministiy of Environment. Frederiksholms Kanal

1220

Copenhagen K Denmark

Phone

+4538

142142

CVR

12854358

EAN 5798000862005• [email protected]. lvww.mim.dk

concentration of a given substance in the water body, i.e. because

the discharge contains a higher concentration of the substance

than the current concentration in the receiving water body, or will

any addition of the substance independent ofamount/concen

tration be contrary to Articie 4 in this scenario (when the EQS is

already exceeded)?

—

In either case, in the light of the

ECJ

rulings, what is the reasoning

behind the Commission’s interpretation?

—

•

In order to establish an increase in concentration is it a requiremerLt that

it must be measurable? In most situations, it will be possible to calculate

even negligible additions does that constitute an increase and therefore

a deterioration?

—

•

If an assessment is allowed, will it be possible to take the significance of

the impact or discharge on a quality element at water body level into

account when the quality element is already in the lowest class?

What scale shall the assessment be conducted at? (Water body level or

other units?) Is there a distinction between surface water and bodies of

ground water?

•

Should you have any questions, please do flot hesitate to contact

US,

and thank you

in advance.

Yours sincerely,

Kirsten Vielwerth

Special Consultant

+45

28 16

AKT 421067

[Follow-up on the DK deterioration questions]

Dokument 3

[Translation of Environment...

Miljøministeriet

Departementet

Vand og Klimatilpasning

J.nr. 2023-4355

Ref. KIRST

Den 16. maj

2023

Translation1 of Environment and Food Board of Appeal

22/02461

Revocation and repatriation of Section

connecting road

22/02461,

permit for the establishment of a new

The Danish Environment and Food Board of Appeal has made a decision accordingto section 25, cf.

section 49(1), of the Danish Environmental Assessment Act (miljøvurderingsloven).Dj

The Danish Environment and Food Board of Appeal cancels the decision made by the Municipality of

Horsens on 25 January 2022 to grant a section 25 permit for a new link road from the Vega industrial

district to motorway E45, exit Horsens C, and remits the case for renewed processing.

The paid appeal fee is flot reftinded.

The Environmental and Food Compaints Board’s decision is final and cannot be appealed to another

administrative authority, cf. §

of the Act on the Environmental and Food Complaints Board{2] and §

of the Fees Order.[31

Any

legal action to

review

the decision must be brosight within 6 months, cf.

section 54, ssibsection of the Environmental Assessment Act.

The decision has been taken

the board, cf. §

of the Act on the Environmental and Food Complaints

Board, which in accordance with the Environmental Assessment Act § 49, subsection

has dealt

with

the case in the board’s medical department (department io), cf. § 3, subsection

no.

10,

in the Ad on

the Environmental and Food Complaints l3oard.

The complaint to the Enironment and Food Complaints Board 4

The details of the case. 5

2.1

Area 5

2.2

Natural and planning conditions. 5

2.2.1

Natura

2000

area no. 236. 5

2.2.2

The watershed plans. 5

2.3

The contested decision. 6

Google translation, apart from pages 38

company.

—

43 that has been translated

professional

lliljo,n,nåstenet

Freder,1.sholrns Kanal

26.1220

Kobenha,n K

Til. 38

142142

CVR 2854358

CAN 5798000862005

,ni,n@,nim4k .ww,,.mi,ndk

Project 6

2.3.2

Section

permit. 7

2.3.3

The basis for the decision.

2.3.4 The Natura

2000

impact assessment.

2.3.5 The environmental impact report.

2.4 Content of the complaint.

2.4.1 Authority disqualification

2.4.2 lrnpact of the Natura

2000

area

2.4.3 Provision of the habitat impact assessment.

2.4.4 Annex IVspecies

2.4.5 Other nature 33

2.4.6 Alternatives 34

2.4.7

Determination of terms 34

2.4.8 Other objections 34

2.5

Horsens Municipality’s comments on the complaint. 35

2.5.1

Authority disqualification 35

2.5.2

Natura

2000

habitat impact assessment. 36

2.5.3

Provision of the impact assessment. 37

2.5.4

Annex IV species 38

2.5.5

Other nature 39

2.5.6 Alternatives

2.5.7 Determination of terms

2.5.8 Other remarks

2.6 New information during the processing of the case.

3. The Environmental and Food Complaints Boards comments and decision

3.1 The Environmental and Food Complaints Boards examination.

3.2 The Environmental and Food Complaints Boards comments 43

3.2.1

The legal framework. 43

3.2.2

Incapacity of authoritv 48

3.2.3

lmpact on targeted surface water areas

3.2.4 Ad 3) lmpact on Natura

2000

area. 57

3.2.5

Ad 4) Provision of the impact assessment. 62

3.2.6 Ad 5) Impact on Annex IVspecies (bats, otters, newts and frogs) 63

3.2.7

Ad 6) Other nature 69

3.2.8 Ad 7) Alternatives

3.3 The Environmental and Food Complaints Board’s other comments

3.3.1 Water Framework Directive

3.3.2 Annex IV species

3.4 Fee.

3.5 Decision of the Environmental and Food Complaints Board.

2.3.1

The complaint to the Environment and Food Complaints Board

The decision was appealed to the Environment and Food Complaints Board on 9 Februaiy

2022

by a

resident of the area. The consplainant submitted suppiementary comments on 4 May

2022, 13

September

2022

and 26 October

2022.

Complainant has stated jo particular that

there is disqualification from the authoritv according to Sect ion

Environmental Assessment Act. 3, at Horsens Municipality,

40,

subsection of the

•

the prepared Natura2000 impact assessment is flawed and insufficient, inciuding in relation to

grounduater lowering

the consultancy behind the Natura

2000

impact assessment is not impartial,

the assessment of Annex IV species is flawed and insufficient, inciuding in relation to hats,

other nature is not described sufficiently in the environmental impact report,

the studies of alternatives to the alignment are insufficient,

there is a lack ofa deseription of ali the project’s characteristics and ofintended measures to

avoid, prevent or limit significant harmfui effects on the environment, and

The Section

permit is in breach of a wetlands deelaration registered on part of the area, and

that the conneeting road is not necessary.

The points of consplaint are fnrther elaborated in seetion

2.4.

Due to their volume, the sent letters of

complaint are not reprodnced in full in the decision. Both the eomplaint and the supplementary letters

of complaint are ineluded in the board’s processing of the case in their entirety.

July

2022,

the Environmental and Food Complaints Board refused to grant the eomplaint

suspensory effect.

In addition, a complaint has been filed with the Environmental and Food Complaints Board regarding

Horsens Monicipality’s decision on exemption from § 3 and § s6 of the Nature Protection Act, the

municipality’s permit for temporary reinjection of groundwater in connection with temporary

groundwater lowering and the municipality’s crossing permits for the interim bridge over Hatting Bæk

and the landscape bridge over Bygholm

and Hatting Brook.[4]

The compiainant has also lodged a complaint with the Planning Complaints Board regarding the

onderlying planning basis for the project and the environmental assessment of the plan. By decision

on 5 December

2022,

the Planning Appeals Board did not ophold the complaints about Horsens

Municipality’s linal adoption of municipal plan supplement no.

2017-34

with associated

environmental report.[5]

The details of the case

2.1

The area

The projeet area is located in the roral zone west of Horsens and south of Lund, and the planned

alignment crosses Bygholm Ådal, designated asa landscape worthy of preservation. The projeet area

includes protected nature according to Section 3 of the Nature Protection Act, incloding the streams

Bygholm

and Hatting Bæk, fresh meadows in the lower parts of the river valley, overgrazing on the

slopes of the river valle), two registered bogs and a small lake. There are also approx.

300

m west of

the project area an area with a south-facing slope with older deciduous trees, as ;‘ell as approx. 80 m

and approx.

200

m east of the project area are wooded slopes.

The landscape in and around the projeet area appears as an undistorbed river valley, apart from a few

agricultural and residential properties located on the edge of the river valley, as well as two high

voltage lines of

400

kV and

150

kV respeetively, which cross the river valley approx.

400

m east of the

landseape bridge, and which runs parallel from east to south through the southern part of the projeet

area. In addition, the project area consists of cultivated flelds.

2.2

Natural and planning conditions

2.2.1

Natura

2000

area no.

236

The project area is approx.

m west of Natura

2000

area no.

236,

Bygholm Ådal, which consists of

habitat area

H236. Bygholm

rons throogh the Natura

2000

area approx.

130

m opstream Hattiog

Bæk outlet in Bygholm

Å.

The applicahle desigoatioo basis for the habitat area appears from the Natora

2000

basie analysis

2o22-2o27.[61

From this, it appears that the basis for desigoation includes the folloxs’iog species:

spring snail, narrow-mouthed whorl snail, Desmoulin’s whorl snail, brook lamprey and otter. b

addition, the basis for designation includes the following natural types: nutrient-rich lake, stream,

limestone grassland, acidic grassland, occasionally wet meadow, spring forest, rich heather and alder

and ash forest.

The watershed plans

It appears from MiljoGIS for the water area plans

2015-2021

that hoth Bygholm

are targeted for good ecological and chemical condition.[7]

2.2.2

and Hatting Bæk

From MiljoGIS on heering of the water area plans

2021-2027,

it appears[8] that the overall ecological

condition of Hatting Bæk is poor, as the condition of small animals is moderate, the condition of

aquatic planls and environmentally hazardous pollutants[9] is unknown and the condition offish is

poor. The chemical state is unkaowo.

Furthermore, it appears that the overall ecobogical condition in Bygholm

downstream of the outlet

from Halting Bæk is high, as the condition of small animals is high. The other organic quality elements

are tmkaown, as is the chemical state.

Upslream of the outlet from Halting Bæk, the overall ecological condition in Bygholm

is poor, as the

condition of aquatic plants and fish is poor, the condition of small animals is high and the condition of

environmentally hazardous pollutants is not good. The chemical condition is not good, which

according to Vandplandata is due to exceeding the environmental quality requirement for mcrcmy in

hiota fish, anthracene in sediment and nonylphenols in water.[so] In relation to the assessment of the

state of environmentally hazardoos pollutants as not good, it also appears from Vandplandata that this

is due, among other things, to an excess of the content of copper in the water, asa level of copper of

1.717

jig/l has been measured, and that the general environmental quality requirement is

1.48

pg/l.

The environmental quality requirement for the maximum concentration of 2.48 pgf I has also been

breached, as the highest measured concentration is

2.8

pg/l.

Tt appears from the Danish Environmental Protection Agency’s FAQ

questions and answers about

the discharge ofcertain polbutants into the aquatic environment from

December

2021

that the

background value for copper in watercourses is 0.48 pg/l.[n] Previously, the background value for

copper in streams

was

calculated to be 0.66 pg/l.[12]

The contested decision

The projeet

The project includes the establishment ofa connecting road between Vrondingvej and E45 exit no. s6b

Horsens C. The road connects to the signal system at Vrondingvej, which gives access to the access

2.3

2.3.1

road to a planned business area, called VEGA, north ofVrondingvej. To the south, the road cotirse is

connected with a new “leg” in the roundabout at the E45 exit Horsens C.

The route is approx.

1.3

km long and will be bnilt as a two-lane road with an 8 m iside carriageway and

a 5.5 m wide discotint on each side of the road. tn the middle of the stretch of road, the road leads over

Bygholm

and Hatting Bæk at an approx.

130

m long landscape bridge designed as a 5-span concrete

bridge with a clearance of 7 m.

In conneetion with the project,

2-4

dead alder trees must also be felled in the alignment of the road,

and an interim bridgc must he built over Hatting Bæk to enable work traffic, which is carried out by

pntting down wooden or steel poles on both sides of the stream.

Four rainwater basins will be established, and the collected rainwater will be led to four rainwater

basins with discharge to Bygholm

Å.

Section

pcrmit

Horsens Mnnicipality, Traffic and Roads, applied on 7 October

2020

for the construction of a new road

connection between Vrundingvej and E45. On the basis ofa heating from 28 October

2020

to s8

November

2020,

Horsens Municipality, Nature and En;ironment, sent a delimitation of the snbjects

that were to be included in the environmental impaet report. Horsens Municipality, Traffic and Road,

as the developer, has had a draft enironmental impact report prepared by an external consnltant.

2.3.2

The environmental impact report, together with the draft §

permit and draft discharge permit, has

been in public consultation for 8 weeks from 8 October

2021

to 3 December

2021.

Horsens Mnnicipality, Nature and Environment, has on

January

2022

made a decision to issue a

Section

permit to establish a new road connection between Vega-Horsens C as described in the

ensironmental impact report for the project.

It appears from the Sectinn

permit that Horsens Mnnicipality, Traffic and Road, is organizationally

separate from Horsens Mnnicipality, Nsture and Enironment. Horsens Municipality, Natnre and

Ensironment, has received assistance from another external consulting company to review’ the

developer’s environmental impact report, including cslculations and assessments of impact on, among

other tbings, the Natura

2000

area and Annex IV species.

It sppears from the Section

permit that the perniit is grsnted

the condition that the project does

not deiate from what is described in the project description in the environmental impact report and

the developer’s application for the project, and that the road project must he established within the

physical and environmental framework and conditions, which sppears in the ensironmental impact

repnrt and within the area allocation specified in municipal plan supplement

2017-34,

Technical

Facility, Horsens Vest.

Tt also appears that the permit is granted on terms that are hased on the ensironmental impacts that

the enironmental impsct report uncovers, including the proposals for mitigation measures that are

incorporsted into the road project under the indi’idual environmental themes and listed together in

the report’s non-technical summary.

The Section

permit stipulates, among other things, the following conditions:

“Terms in connection with the execution of the work:

.‘zv.

e—-,:-’r—,r-—ttt

t—-———

—.—..

— —..

...-

._.

... -

As far as possible, the work must be carried oot within normal working hoors, which means

weekdays hetween 07:00-18:00. Ramming of sheet piles must not take place ootside this period.

i8. In connection with the construction of the foundations for the landscape hridge, sheet pile walls for

constroction pits must he framed around the fouodations oext to and between Bygholm

and Hatting

Bæk.

17.

Conditions for coosideration of Annex tVspecies:

35. Removal of older, hat-fnendly trees must be avoided as far as possible. If older, bat-friendly trees

are to be removed, for the sake of bats, this must be done in collaboration with the Danish Nattire

Agency. Concrete and careful investigations must be carried ont hefore the removal. The trees may

only be felled in the period between

September and

October. Felling at other times reqoires a

dispensation, which must be applied for at the Danish Environmental Protection Agency

36. For each tree removed, three hat boxes ofa type corresponding to Schwegler

2FN

ofdark

wooden concrete must be set op. The boxes sre set op on suitable trees along, nr in the immediate

vicinity of Bygholm

Å.

The boxes most be installed and ftinctional before the trees are removed.

37. On the bridge, screens in matt material that dn nnt reflect light must be instaBed at a height nf 1.6

meters above the finished road in the full length of the bridge, for the sake nf bats and birds.

38. Along the road over the dams in the river valley, a dense planting of trees and shrubs that are

naturally native to East Jutland will be established at a height of min.

2.5

m above the finished road, to

lift low-flying bats above the traffic. South of the landscape bridge, the planting must follow the course

of the road for at least

100

m, on both sides of the road. North of the landscape bridge, the planting

must fnllnw the course of the road for at least

130

m, on hoth sides of the road. At the ends of the

bridge, the planting most fnllnw the slope towards the river valley.

39. Until the necessary dense planting has been established, a

2.5

m high game fence/wire fence with

dense mesh must be established, cf. the Road Directnrate’s guidance on fauna passages4, on the

sectinn with planting cf. cnnditions 36. The fence nr planting must be established and functional when

the road is put into tise.

40.

For the sake nf amphibians, the developer must establish a permanent amphibian fence nn both

sides nf the road, on a

200

meter long stretch from the road bridge on the north side of Bygholm

Å.

The tnad fence must be established, cf. instructions The Road Directorate’s gnide “Fencing along

roads” and Experience catalog for toad fences.

41.

If, contrary to expectatinns, flnds nf Annex IV species are found in the construction area, which

have nnt been located in connection with the field investigations and which are therefore not descrihed

and assessed in the environmental impact report, the wnrk must be stopped immediately and Horsens

Municipality must he nntifled immediately.”

It alm sppears from the decision that the Municipality of Horsens has reviewed the envirnnmental

impact repnrt in accordance with §

of the Environmental Assessment Act with the involvement of

the necessary expertise in nrder to ensore that it meets the requirements of §

20.

Overall, the

Monicipality of Horsens assesses that the project does nnt entail such s significant impact on the

environment, that it cannot be permitted when the terms of the permit and terms nfsupplementary

permits are complied with. Based on the envirnnmental impact report, it has been sssessed that there

is no need for monitoring.

In relation to the impact on Natora

2000

areas, it appears from the §

permit that the natore types

that N236, Bygholm Ådal, is designated to protect, will not be affected by the prnject, nr comulatively

with other projects neither in the establishment phase nor in the operatinnal phase, as the project is

nutside the Natora

2000

area.

It also appears from the permit that Horsens Mooicipality assesses that the project will oot affect or

damage the designation basis and integrity of the natoral areas, and the project does not prevent the

realization of the goal of favorable cooservation status.

Regarding Annex IV species, it appears from the Section

permit that there are potentially suitable

hahitats in the project area for the Annex IV species field lizard, pointed frog, large newt, heach toad

and species of hat. No occurrences of Annex IV species of amphibians and reptiles have been

registered jo the project area, nor have soch specjes been foood during the iospectioos. Jo the sommer

2021,

slot owner stated that a single individual ofa large oewt was fouod, just as the bt owoer

sobmitted informstioo io December

2021

about a frog that Horsens Muoicipality coosjders to be a

bott-nosed frog, which is not an Annex IV species. The monicipality has sssessed that the coostroctioo

workers do oot pose a threat to these species, ss the work takes place duriog the day outside the times

of the day when the amphibiaos migrste to and from their breeding and restjog areas.

It also appears from the permit that, during the inspections, large nombers of s total of nille species of

bats were fonod jo the river valley, incloding bong-esred bats, soothern bats, brown bats, pygmy bats,

troll bats, water bats, pond bats, long-eared bats and pipistrelle bats. Horsens Monicipality has noted

that the defonct alder trees jo the road roote mnst be removed in collaboration with the Nature Agency

and the Danish Environmental Protectjon Agency, and that it has also been assessed that the removal

will not affect the occnrrence of bat species’ ecological functionality. The municipality has also

assessed that the bridge will not cause a barrier effect for bats, as the bridge’s clearance between the

river valley and the underside of the middle three bridge spaos is approx. 7 m.

The municipality also notes that it appears from the environmental impact report that the planting and

the temporary fence, which is estsblished on the road sbopes along the road, ensures that the bats are

either led down into the river valley or lift the bats that may cross the road higher op. Againat tbis

background, and given that it is a two-lane road, the municipality has assessed that the cooditions set

are sofficient to protect the presence nf bats in the area.

Regarding targeted water bodies, it appears from the decision that the discharge of water from the

road construction’s rainwster basins will not lead to an increased risk of a deterioration of quality

elementa jo Bygholm

or the final recipients Bygholm Sø and Horsens Fjord. The discharged water

quantities are relatively small in relation to the water flow in Bygholm

Å,

and the dilution is therefore

high in relation to oxygeo-consnming nrganic matter, harmful substsnces and salt.

It also appears that calculations in the environmental impact report show that there will be a net

reduction of leached nutrients from the areas involved in the road constroction, compared to the

current leaching from the agricultural areas, and that the discharge from the rainwater basins will

result in a limited discharge of copper and zinc.

Sioce the concentration increases in cumulation with other known sources are quite small, the

discharge is assessed to have no significant overall impact no the water course. The road system’s

rainwater basins effectively dean PAHs and mercury. Horsens Muoicipality has therefore assessed

that the drainage from the basios to Bygholm

does nnt lead to a deterioration of the cooditioo of the

aurface water area, does not lead to a risk of a decline in any of the quality elements, or hinders the

folfillment of the established environmental target in relation to the substances where there are

currently exceedances cf. the Danish Environmental Protection Agency’s studies from

2015.

The hasis for the decision

It appears from sectiun

11.1

of the environmental impact report that a separate Natura

2000

impact

assessment ealled Natura

2000

impact assessment and assessment of Annex IV species for the new

connection road, Vrendingvej E45, Horsens (hereafter referred to as the “hahitat impact

assessment”), which is attached as appendix 7 to the environmental impact report.

2.3.3

—

It also appears from section

11.2

of the environmental impact report that the possible indirect impact

on the Natora

2000

area, N236, Bygholm Ådal, is examined jo the Natura

2000

impact assessment.

In the following, the parts of the Natnra

2000

habitat impact assessment and the environmental

impact report that are relevant to the case are reproduced.

The Nattira

2000

impact assessinent

Semi-natural dry grassland and scrubland facies on calcareous substrates

It appears from section

7.1

of the habitat impact assessment that the light-open habitat nature types in

the Natnra

2000

area have been mapped over three stndy periods, and it is therefore assumed that the

current designation basis is fair for the distribution and condition of the nature types.

2.3.4

It also appears that the closest light-open nature type in the Natura

2000

area is an area with Semi

natural dry grassland and scrubland facies on calcareous snbstrates, located approx.

300

m from the

road’s route, and that the habitat cannot be physically affected, but can potentially be affected by

nitrogen deposition from the road’s traffic.

It also appears that nitrogen deposition from the road’s traffic emissiuns in cumulation with existing

sources in the area is assessed on the basis of the annually calculated backgroond deposition for the

area in connection with air monitor ng in the NOVANA programme.

It also appears that, in cunnection with the preparation of the habitat impact assessment, specific

calculations of the nitrogen deposition have been made based on the location of the road and several

points ofinterest. Based un the nsodeled background bad in the area, which amounts to approx.

12.5

kg N/ha/year, and the calculated depusitiun ufa maximum of

0.2

kg N/ha/year, the deposition is

assessed, hased on the structural and species condition of the grassland, not to pose a threat to the

cunservation status uf the grassland.

It has been eoncluded in the hahitat impact assessment that the nitrogen deposition as a result of

emissions from road traffic at the grassland on calcareous substrateswill be so low that it vill not cause

an impact on the conservatiun status of the nature type in the Natura

200u

area, not even in

cumulation with the existing background bad, which has been declared to

12.5

kg N/ha/year.

Overall, it is assessed that the establishment uf the road will not prevent the achievement of a

favorable conservatiun status fur the cuncrete grassland on calcareuus substrates. Likewise, the road is

not assessed to pose a risk to the nature in the habitat area and the integrity of the area.

Vertigo geveri ss’horl snail. narruw-mouthed whorl snail and Desmuulin’s whurl snail

It appears from sectiun

5.4.1

of the habitat impact assessment that the marsh snail is on the basis of

the designatiun for habitat area H236 Bygholm Ådal, and that it is found in stable marshy/wet, open

ur lightly shaded stands uf heather ur similar stands of uther plant species, eg. tall sweet grass ur reed

grass. Accurding to the municipality’s § 3 registratiun, in the habitat area within the stndy area, which

constitutes an area around the pruject’s alignment, there are marsh areas with tall perennials/reed

swamps. It appears that these areas can be putential habitats fur marsh snails, and that the potential uf

the areas as habitata has been assessed by the botanical regiatration. A search fnr the species has been

carried oot at one location, which is assessed to conatitute a anitable hahitat.

It alan appears from section

5.4.2

of the habitat impact aaaeaament that no Deamoulin’a whorl anails

were foond dnring the inapectiona in the atudy area.

tn relation to the vertigo geyeri whorl anail and narrow-mouthed whorl anail, it appeara from the

hahitat impact aaaeaament aection

7.1

that the vertigo geyeri whorl anail and the narrow-mouthed

whorl anail are linked to botanically fine, open, calcareoua and fairly stable rich sedges, extremely rich

aedgea and aedgea.

In addition, it appeara that the three species are regiatered in connection with springs and sedges in

the central and western part of the Natora

2000

area, more than

900

m from the project area. It alan

appeara that no habitat types have been registered that woold be able to snpport the preaence of the

vertigo geyeri whorl snail nr the narrow-mouthed whorl anail near the project area, and that due to the

distance, it is eatimated that the project will not affect the knnwn popnlationa of the Deamonlin’a whorl

anail, the vertigo geyeri whorl anail nr the crooked acrew anail. Tt alan appeara that, ahould a

population still be fnnnd in the project area ontside the habitat area, it is considered not to have a

direct impact on the populationa in the hahitat area.

Brook lamprev

To relation to the occnrrence of the brook lamprey, it appeara from aection

7.1.4

of the habitat impact

aaseaament that, in the period

2011-2016,

a mapping of the occorrence and distribution of the brook

lamprey was carried ont with the main focus no the Natura

2000

areas where the apecies is on the

basis of deaignation. The apecies haa alan been monitored by the general NOVANA control monitoring

of atream fiah acroaa the country both inaide and nutaide the habitat areaa in the period

to -2016.

lt alan appeara that, according to the baaeline analyaia

2016-202a

for the Natura

2000

area, N236,

Bygholm Ådal, the lamprey is not regiatered by the NOVANA monitoring, and that in the lateat

baaeline analyaia

2022-2027

it is atated that no monitoring has been carried ont brook lamprey in the

Natura

2000

area.

It appeara that, according to the Article

report in 2na9[a3], there are no signs of a decline in the

populationa of the Brook lamprey throughout the country, and that the conaervation atatna of the

Brnok lamprey is aaaeaaed to be favorable.

It has alan been aaseaaed that the stretch of watercourse around the project area can he a breeding

ground for the apecies and a migration site when the apeciea seeka out the smaller watercouraes to

reproduce. The atretch ja not conaidered to be a likely breeding area, aa the hottom is mainly sand)’

and there ja conaiderable aaod migration. However, it appeara that there will he auitable breeding aitea

at aeveral of the tribotaries to Bygholm

Å,

inclnding the Hatting Bæk tributary.

In relation to the impact no the brook lamprey during the conatruction phaae, it appeara that the

project is not asseased to be able to affect a poaaihle population of brook lamprey in the atream ayatem

during the conatruction phaae, aa the project doea not inclnde phyaical changea to the atream. Tt is alao

ensured during the construction phase that, in the event of large raiowater eventa, surface water with

sospended material does nnt flow from the project area directly to the watercoorae, for example by

establiahing rainwater baaina and/or by guttera and culverts. The amount of soil particles and

nutrienta from aurface water doriog the conatruction phaae is therefore aaaeaaed to be of no

i--

importance to Iampreys on the basis of the relatively low amount and the Iampreys’ general

autoecology.[14j

In relation to the impact on the brook lamprey during the operational phase, it appears from the

hahitat impact assessment on fluetoations in the oxygen concentration that any very small impact is

not assessed to pose any threat to the brook lamprey, which is not normally considered to bea species

that is partieularly sensitive to lower oxygen teosions. The species’ natural habitat is also in the areas

of the stream where the oxygen conteot is oot the highest. It also appears that any impact will be from

isolated events which may caose a potential and short-term impact outside the Natora

2000 area.

In relation to the influence of salt, which can continue during the winter season, it appears that in

connection with the environmental impact assessment of the project, a worst-case scenario haa been

calcolated, where at the end of the winter, a maximum total concentration of 667 mg/I can occor at full

mbdng in Bygholm

Å.

There are no general ecotoxicological limit values for salt in freshwater systems,

btn it is far below the LC50 values[15] that exist for various animal groups linked to watercourses. It is

also helow

3,000

mg/I, which according to studies is the value at which there is sigoificantly increased

drift for species such as those in Bygholm

Å.

The drift rate has been used in some studies as an

expression of changed behavior in invertebrates, as they use drift asa way to escape unfavorable

conditions.

It appears that the salt concentrations at the outlet point can occur in elevated concentrations. Since

salt is relatively casily soluble, and since salt will thus only be in a modest plume around the outlet

point, it is expected that there will only bea real biological impact of salt in the stream in particularly

severe cases. It is assessed against this background that salt discharge to the pools in Bygholm

will

not affect the brook lamprey to such an extent that it could prevent the achicvcment of favorable

conservation status.

ln relation to the impact of environmental hazardous substances, it also appears from the habitat

impact assessment that today a number of exceedances are seen at the measuring station immediately

upstream of the new road at Kurup Bro. lt appears that the exceedance is only seen in the priority

substances anthracene (PAH), mercury, nonylphenol, which relate to the chemical state, and copper,

which is monitored under the package of nationally specific suhstances.

It appears very unlikely there will be measurable discharge of anthracene from the rainwater hasins,

that nonylphenol probably originates from sewage treatment plauts and domestic waste water and not

from road water, and that there is only a small contribution of mercury associated with separate

rainwater and thtis also road constniction. Mercury, nonvlphenol and anthracene are therefore not

considered to pose a threat to the brook lamprey, which could prevent the achievement of favorable

conservation status.

b relation to copper, it appears that the lamprey’s LCo value for copper is 46 1g/l, and that the

measured values for Bygholm

are far from the stated LC50 value for the lamprey.

is therefore

assessed that the presence of copper in the stream, neither under existing nor future conditions, will

pose a threat to the brook lamprey, which may prevent the maintenance of a favorable conservation

status for the brook lamprey.

Otter

In relation to the occurrence of otters, it appears from section

7.1.3

of the hahitat impact assessment

that during the latest monitoring in

2u17,

tracks/excrement from otters were found at Bygholm

Korup Bro immediately west of the project area, and that according to the baseline analysis

2022-2027

for habitat area 11236, it is assessed that the species uses the area to a greater extent than illustrated by

the monitoring carried out

ifl 2011-2012.

Based oo the oature of the area with watercourses and

undisturbed areas, it is alsu assessed to bea stable presence of otters in the area.

It also appears that during a specific search carried out

iii

April

traces of otters were found, but no signs of breeding activity.

2021

in the planfled road route, clear

Tt appears from the species in general that otters give birth to their 3’oung

ifl

a cave

ifl

a remote,

uodisturbed lake or marsh area, and that the immediate area around the road roote is grassy and open

withont good opportunities for hiding.

On this basis, it has been assessed that the areas immediately east of the Natora

2000

area are not

significant as a breeding area for otters, but that it is very likely that individuals move along the

streams and possibly roost in hidiog by the streams.

Tt also appears from a possible impact duriog the coostructiofl phase that otters are relatively tolerant

of noise when the3 are at rest, but it is likely that any day-resting otters in the area will prefer to move

to other psrts of the territory while particularly noisy constructioo activities are carried oot as framing

of sheet piles or piles. Tt appears in extension of this, since the area has not heen assessed as suitable as

a breeding area, and since there are good opportunities for hiding both npstream and downstream of

the project, it is assessed that short-term construction activities will not cause a significant negative

impact on the population of otters in the Natura

2000

the area.

It appears there will he a need to establish a passage for construction traffic over Hatting Bæk. Otters,

which travel along the stream, may therefore have to walk on land for a short distance dnring the

constrnction phase. It appears this is not considered to constitnte a significant impact, as the

temporary construction activities will normally take place within normal working hours during the day

and not during the night, when otters actively forage in the streams and where otters can therefore

pass the constrnction site.

There is also s stable occurrence of otters in Bygholm

and a favorable conservation status for the

species in Jutland. Disturbances during the construction phase of the project are not considered to

cause a negative impact on the conservation statns of the otter population linked to Natura

2000

area

N236, Bygholm

Å.

In relation to the impact un otters during the operational phase, it appears that a road construction

over a stream can constitute serious obstacles for otters if good passage conditions have not been

established, which ensnre that the otter can pass under the road along the stream. It appesrs that the

new road passes the river valley no a landscape bridge that is

130

m long and

m ;vide, and that the

three middle bridge spans are each approx.

m long with a clearance of at least 7 m. Tt is stated that

the landscape bridge’s width and height meet the minimum standards for a fauna passage that can be

used by cervids, and that the bridge also creates passage for many species from deer to invertebrates,

as well as ensuring a good connection between the habitats and habitats of the animals on each side of

the road cunstruction.

Ifl conclusion, it is assessed that the road construction will not cause a bsrrier effect on the populatiun

of utters in the Natura

2000

area, as good passage conditions for otters and other animals are ensured

under the road construction during the operational phase, and that the project overall is not assessed

to hinder the minimum good conservation status of otters no regiunal ur national level.

Temporarv groundwater lowering

Et appears from section 3.6.6 of the habitat impact assessment that a temporary groundwater lowering

must he made at four of the landscape hridge’s six support points in connection with the construction

of the bridge’s foondations and pillars. Groundwater is lowered into the construction pits individually,

which means that the four constniction pits are not pumped at the same time. Groundwater must be

lowered for tip to fotir weeks per construction pit, thus a total of up to 16 weeks in the constrtiction

period.

is estimated that the total extent of groundwater lowering is 75,280 3, and asa worst case

scenario io% has been added, so that the calculation is hased on a total water volume of 85,000 m3. A

conservative model calculation has been made of the distribotion of groundwater lowering aroond the

construction pits, which can be seen in figures 3-7 of the hahitat impact assessment. The calculations

show that the spread of the sinking funnels is limited to the promity of the construction pits, and it

will be especially to the north and south, where the greatest spread is tip to

120

m. The sinking funnels

will not extend into the Natura

2000

area.

It appears from section

7.1

of the hahitat impact assessment that the impact from the temporary

groundwater lowering of the groundwater table, which must be carried out in connection with the

construction of the landscape bridge, is assessed to be very small and completely insignificant for the

area’s groondwater interests, including their vulnerability and water quality. The impact on local

natural areas is also assessed to be very small. Tt also appears that no impact is seen in habitat area

11236, and that it is considered to be excluded that groundwater-dependent nature types in the habitat

area as well as stream-dependent nature types and species can in any way be negatively affected by the

groundwater lowering.

Annex IV speciel ofbats

Surveys

It appears from section 5.4 of the habitat impact assessment that, in connection with the early

planning of the road project, a review of existing data as well as supplementary field sun’eys in the

area around the road route has been carried out. It also appears that, due to uncertainty about

individual habitat types and the road’s potential impact on bats, additional studies have subsequently

been carried out. Among other things, a search has been carried out for Annex IV speciel, including

bats in summer and autumn

2020

and spring

2021

respectively.

Tt appears from sectiun 5.4.

of the habitat impact assessment that, in connection with the atudy, a

study area has been defined as a

200

m buffer zone around the two proposed alternative alignments.

The area’s hats have been investigated in accordance with the Road Directorate’s guidance on “Bats

and major roads”, and automatic hat detectors have been set op at important stnictures for bats over

three periods

O 2020

and

2021.

lt appears that the three periods have been intended to cover the bats’

breeding period, the period in the autumn, when the hats are typically mure mobile, and the spring,

when the bats can potentially seek out other areas than in the autumn. Et also appears that in ali

periods the automatic detecturs are suppiemented with a manual review of the area with a hand-held

hat detector.

It appeara from the note for the hat mapping dated June

2021,

which is included as appendix 7 to the

hahitat impact asseasment and the environmental impact report, that the three hat studies were

carried out reapectively from July

to Joly 4, and from August

to August

2020

and from 7

May to 16 May

2021.

It appears from section

5.4.2

of the habitat impact assessment that the hat mapping ahowed that there

is generally a high activity uf bats in the study area. A total of nine speciel of bats have been recorded,

and there is particularly high activity around Bygholm

and the surrounding meadows, which serve as

a foraging area for a number of speciel of bats.

Tt also appears from section 8.1 of the hahitat impact assessment that the mapping showed that the

stody area at Gronhøjvej and Stampemollevej west of the project area as well as Bygholm

contains

significant bat valoes, and that a breeding and roosting area west of Grenhojvej for pipistrelle bats and

pygmy bats, and possibly also brown hats, has heen foond and troll hats. Tt appears that the specific

area is a steep south-facing slope with many older deciduosis trees, inclsiding some oak trees with

cracks and hollows, which make them suitable as breeding and roosting trees for bats, and that a large

part of the bats from here are estimated to forage helow in the river valley ahove the extensively

cultivated meadows around Bygholm

Å.

The hreeding and roosting area is drawn

figure 8-2 in the

habitat impact assessment.

Tt also appears that the meadows are also considered to be an important foraging area for southern

bats, and that the stream itself is an important foraging area for water bats.

Tahles 8-s, 8-2 and 8-3 of the habitat impact assessment show the activity levels, and the)’ indicate the

average recordings per species per night in the three study periods. Figure 8-i shows an overview of

the relative distribution of hat activity in the study period in mid-August

2020

and the location of

automatic hat detectors. During the investigations, nine different species of bats were recorded

southern, water, pond, brown, troll, pipistrelle, pygmy and long-eared bats.

—

It alsu appears from section 8.s of the habitat impact assessment that at the eastern end of the

meadows there are several wooded slopes with potential breeding and roosting trees for bats, and that

these have not been mapped more precisely. The associated forest edges and the stream are considered

to constitute significant guide lines, and there are several smaller guide lines that lead down towards

the stream and the meadows. It also appears that in both summer mapping periods, man)’ individuals

of several species of hat were observed foraging over the meadows, and that the meadows are

cousidered to constitute a significant foraging area for the local bats, also upstream and downstream of

the stud)’ area.

It also appears from section 8.4.1 of the hahitat impact assessment that there are a few

(2-4)

extinct

alder trees with woodpecker holes along Bygholm

in the alignment of the road, and that these have

been inspected with a view to ascertaining whether there were roosting bats. lt appears that during the

manual reviews no bats have been observed entering or leaving, hut that it cannot be rejected on that

basis that the trees are used periodically for daytime roosting by, for example, water bats.

also

appears that the trees in question, however, have a size and condition that makes them considered

unlikely as a breeding place and winter roost for bats.

It has been assessed that the removal of the trees in question during the construction phase will not

affect the ecolugical functionality of breeding and roosting areas for the speciel of bats in the area.

These are

2-4

suboptimal trees, where locally in the river valley there are many and hetter snitable

breeding and roosting trees for hats, as stated jo the mapping note of June

2021.

TT also appears that, in order to ensure that the ecological fouctionality is maintained at the same leveT

as hefore, three hat boxes are set op for each of the trees mentioned above that are removed. The hat

hoxes must he of a type that has been shown, among other things, to accommodate water hats and

must be set up in relative prmdmity to Bygholm

Å,

either on existing trees or on the bridge

constroction. The boxes set op must be fonctional hefore the trees are felled, or alternatively, if the

trees are felled in the winter months, the hoxes most be functional hefore next April.

The road course and the landscaye hridee

It appears from section

8.4.1

of the habitat impact assessment that the establishment of new road

routes can lead to the destruction ofbreeding and roosting areas for bats. It also appears that changed

traffic patterns and new road routes in areas with high hat activity can potentially constitnte harriers

for bats in relation to accesa to foraging areas, affect the species’ ability to spread in the landscape,

deteriorate the quality of the area for bats and pose a risk of traffic-killed individuals.

It also appears from the road’s impact on bats during the operational phase that the extent of the

specific road’s impact largely depends on the design of the road, the permitted speed and the location

of the road in the landscape in relation to guide lines and important areas for hats. The connecting

road in the specific project crosses Bygholm

Å,

which is considered to be an important control line,

and the road goes across Bygholm Ådal, which is considered to be an important foraging site for

several of the local bats.

It appears from section

3.5.1

of the habitat impact assessment that the road construction’s crossing of

the Bygholm Ådal is constructed as a landscape bridge in accordance with the Road Directorate’s road

ride on fanna passages, as the ådalen forms an important ecological corridor in the landscape.[i6] It

also appears that the bridge is designed sn that it meets the minimom requ rements for high landscape

hridges of the type AtL (wet), which cater for the passage of cervids and deer. The clearance under the

three middle spans of the landscape bridge is 7-9 m, which is sufficient for a large part of the hat

species to prefer to fly nnder the road. It appears that the landscape bridge’s three middle spans are

each approx.

m long.

also appears that the landscape bridge will be established withont Iighting, and that, in accordance

with the road directorate’s guidance, fixed matted screens will be installed on the sides of the bridge

for the sake of birds and bats in the river valley and protective planting along the sides on the edge of

the river valley.

It also appears from section 8.4.1 of the habitat impact assessment that the shielding has a height of

1.6 m above the finished road, and that the shielding will prevcnt bats from flying low over the road

with the assnciated risk of traffic fatalities. The bats that forage at the height of the bridge above the

river valley fly to a lesser extent attached to gnide lines and at a distance from fixed structures, and

they will thus cross the road at a height beyond the bridge’s shielding, and thus above normal car

traffic. In relation to trucks and boses, which are significantly higher than i.6 m, the shielding

contributes to the bats having a higher approach height and thereby minimizes the risk of traffic

fatalities.

It also appears from the habitat impact assessment that the planting alnng the road will functinn as a

guide line that can lead low-flying species on the edge nf the river valley dnwn into the river valley,

where there is a passage under the bridge, and that the planting will also lift crnssing hat individuals

over the road at a height, which minimizes the risk of traffic fatalities. It appears that the planting is

established so that it becomes dense and reaches a height of at least

2.5

m, whereby it becnmes

functional to guide bats dow’n the river valley nr “lift” bats that cross the road. The planting is initially

supplemented with a wire fence with a minimnm height of

2.5

m, which must he finely meshed so that

bats cannnt pass throngh the fence, cf. the Road Directnrate’s giudance on fauna passage.

On the north side of Bygholm

Å,

the planting nn bnth sides nf the road mnst extend op to

130

m from

the road bridge, and on the south side the planting nn hnth sides of the road must extend op to sno m

from the road bridge.

-1÷

Table 8-4 of the habitat impact assessmeot contains an overview of the bat speciea in the area and

their relevant behavior in relation to the impact from roads. In addition, the tahle contains a general

assesament of the speciea’ vnloerability to impact from roads in general.

Noiae and light nuisance durina the ooeratina ohase

In relation to noise and light noisance duriog the operational phase, it appears from section

3.5.t

the habitat impact assessment that the screens on the aides of the bridge limit the effects of light and

visual distorbance from road traffic. In addition, the screens are made of frosted glass, which does not

reflect the light. In addition, it appears from section

3.7.2

of the hahitat impact assesament that road

lighting will not be established on the stretch.

lt also appears from section 8.4.1 of the habitat impact assessment in relation to the impact on bats

doring the operational phase that noise and sound pollution can impair the quality of habitats along

roads. Reference is made to two foreign studies which indicate that a reduced incidence of bats can be

seen more than one kilometer from a huay road, but that the effects have however been aeen on roada

with far more traffic than the current road. The planting around the road and screens on the road

bridge are assessed to rednce this potential impact significantly, to an extent where it is not assessed to

impair foraging and passage opportuoities in the river valley itself. lt is likely that the area

immediately along the road will become less attractive to the bats in the area, but this is not assessed

to he to an extent that ill significantly affect the ecological functionality or the popnlations in the

area.

Assessment of impact on bats

is assessed in section 8.4.1 of the habitat impact assessment that the road and the landscape bridge

will not canse a deterioration of the ecological fuoctionality of breeding and roosting areas for ali of the

nine registered species ofbats in the stndy area. The planting aronnd the road and screens on the road

bridge will rednce the potential impact sigoificantly to an extent where it is not assessed to impair

foraging and passage opportnnities in the river valley itself. It follows from this that it is likely that the

area immediately along the road will become less attractive for the bats in the area, hot that this is not

assessed to be of an extent that i4ll significantly affect the ecological functiooality ur the popnlatioos

in the area.

It appears in relation to water bats that Bygholm

is assessed to constitute an important structore aa a

guide line and foraging site. The species stays low and closely attached to the stream itself and the

areas close around. With the planned road course and the landscape bridge, there is not assessed to be

an increased risk of traffic fstalities or negative impact due to the barrier effect, and thereby there is

also not assessed to be an impsct on the ecological functionality of breeding and roosting areas for

water bats.

In relation to pund bats, it appesrs that Bygholm Ais a potentisl gnide line for the species, and that the

species has the same behavior as water bsts and forages low over water surfaces and flies closely

associated with gnide lines snch as stresms. The road is not assessed to pose s risk of road MII of the

species or to affect it through a bsrrier effect, as individuals will follow the stresm unimpeded and psss

under the laodscape bridge. Furthermore, in connection with the snrveys in the area, there are only a

few scattered records of the speciel in the spring and autumn. It has been assessed that the road will

not impair the ecological functionality of breeding and roosting areas for pund bats.

In relation to pipistrelle and pygmy bats, it appesrs that the)’ occur commonly in the ares with

breeding sites west of the alignment. Pipistrel bats are mainly recorded foraging relatively low and

ciose along forest edges and leeward fences west of the alignment and partly out over the open river

valley, although to a much lesser extent. There is no impact on the primary stnictures with which the

species has been observed. Dwarfbats occur more evenly distributed in the area. The road lies in the

upper part of the typical foraging height of both species. The majority of both species’ erossings of the

facility will take place under the landscape bridge. The fencing along the road will help the hats that

had to cross the road to he forced higher above the roadway, therehy reducing the risk of collision

considerably. It has heen assessed that the area is home to large populations, and that individual

traffic fatalities will therefore not affect the popolation negatively. The road is not assessed to cause a

deterioration of the ecological functionality of breeding and roosting areas for pipistrelle or pygmy

bats.

In relation to the long-eared hat, it appears that the species may be vulnerable to new road

constructions, but that the area does not constitote a significant breeding or foraging location for the

species, as there are only very few recordings of it, and that the species is also rarely seen out in open

land areas. It has been assessed that the road will not impair the ecological functionality ofbreeding

and roosting areas for the long-eared hat, as the species only has a very rare and sporadic connection

to the area, as stroctures of importance to the species will not be affected, and as it is not assessed that

be a significantly increased risk of road kiIl for the species.

It appears in relation to southern bats and troll bats that these species typically fly at medium altitudes

between

2-20

m and that they are to a lesser extent closely linked to landscape goidance lines. Thus,

they are at less risk of being affected by the course of the road and traffic. It appears that the road is at

a height at which southern bats and troll bats typically forage, and that when crossing the road bridge

the species will pass both under and over the road. It has been assessed that the screening along the

road helps to force these species to pass the roadway at a greater height and minimize the risk of trafflc

fatalities, and that a smaller number of the species will possibly also cross under the road ont into the

open river valley.

is therefore assessed that the road will not lead to a deterioration of the ecological

functionality of breeding and roosting areas for southern bats or troll bats.

It appears in relation to brown bats and long-tailed bats that it has been assessed that the species will

not be affected during the uperational phase, as these species normally fly high and without a

particularly close connection to control lines. It is estimated that the species will generally be able to

pass the road without problems. The road is therefore not considered to cause a deterioration of the

ecological functionality of breeding and roosting areas for brown bats and bats.

Annex IV species large water salamander and nointed frog

Tt appears from section

5.4.1

of the hahitat impact assessment that there have been no recorded fods

oflarge newts or pointed frogs in the immediate vicinity of the study area, but that there are potential

habitats.

It also appears that large water salamanders and pointed frogs have been mapped in the study area in

the summer of

2020

by searching for tadpoles in suitable habitats in accordance with the technical

instructions for monituring amphibians.

[17]

It also appears from section 8.2 of the habitat impact assessment that large newts and pointed frogs

were not found within the study area in conneetion with the field survey carried out in

2020,

but that a

single large newt was found at the end of summer

2021

ons nearby property, probably on its way to

roost

and that the nesrest known find is slso more than km from the study ares.

It also appears from section

8.4.2

of the habitat impact assessment that constructioo works and work

areas do not affect known breeding and roosting areas for large water salamanders and sharp-nosed

frogs, but that the road in the operational phase may constitote a poteotial negative impact for the

species if it lies between breeding and roosting areas dne to an increased mortality during migration

and due to barrier effect. It also appears that the establishment of a permanent toad fence along both

sidea of the road on the north side of the Bygholm

will prevent traffic fatalities and lead migrating

new-ts down into the river valley, where there is safe passage nnder the road bridge.

It has been assessed in the habitat impact assessment that the project, with the establishment of the

described mitigation measnre, will not impair the ecological functionality of breeding and breeding

areas for large water salamanders and sharp-nosed frogs.

2.3.5

The environnsental impaet report

Natnra

2000

tt appears from section

11.2

of the environmental impact report that the alignnient of the road is

positioned so the Natnra

2000

area, 11236 Bygholm Ådal, is not direetly affeeted, but the possible

indirect impact is investigated in the Nattira

2000

habitat impaet assessment. The projeet area is

located approx.

m east of the Natura

2000

area.

It appears from section

11.2.6

that the Natura

2000

area has been specially designated to proteet the

oeeurrences of grassland on calcareons siibstrates, spring meadows, sedges and streams, as well as the

associated species otter, brook lamprey and whorl snails. In the Natura

2000

impaet assessment, it is

the grassland on ealcareous substrates habitat and the ntter and brnok lamprey species that have been

assessed as relevant in relation to a potential impaet of the project. Other occurrenees of species and

habitat natnre types on the basis of the designation are more than

500

m from the road route, and in

the Natnra

2000

habitat impact assessment it was not fonnd that there w’onld be significant potential

impaets on these.

In relation to the grassland habitat, it has been assessed that the establishment of the road will not

lead to inereased nitrogen deposition to an extent that will prevent the development of habitat habitat

types on the nearest areas in the Nattira

2000

area.

In relation to the brook lamprey, it has been assessed that diseharge from the rainwater basins may in

eertain cases canse local flnctuations in oxygen concentration immediately dow’nstream of the

discharge points, where the oxygen level in the rainw’ater basins may be low’. However, it is assessed

that the impact will not be signifleant for the Natnra

2000

area’s population ofbrook lampreys, as this

is not a breeding area, and as any impact is made op of isolated events, which entail a potential local

and short-term impact that is reversible within a short period, ontside the Natura

2000

area.

In relation to otters, it has been assessed that the road constructinn will not canse a signifleant barrier

effect on the Natura

2000

area’s population of otters, as good passage conditions for otters and other

animals are ensured during the road construetion during the operational phase.

For a more detailed re;iew of the Natura

2000

area, the ensironnsental impact report refers to the

Natura

2000

habitat impaet assessment in the report’s appendix 7.

Apyendix IV species

-‘

It appears from section

11.2.7

of the environmental impact report that there are potentially suitable

habitats around the road route for species of bats, field lizards and the amphihian species pointed frog,

large newt and beach toad, ali of which are Annex IV species and which may be sensitive to effects of

new

traffic facilities. Possible impacts inciude road Iduls, barrier effects and fragmentation. The

mentioned species are therefore searched for during the field

surveys ifl 2020

and

2021.

It appears in relation to large water salamanders that it is estimated that it is likely that the species

occurs breeding in one of the

river

valley’s many waterholes. Based on the ascents

ifl 2020,

the two

waterholes are not assessed as suitable breeding waterholes for large water salamanders,

hut

it cannot

be denied that they have occurred breeding

ifl 2021.

There are no

known

occurrences of field lizard, pointed frog ur beach toad near the route of the road,

despite searching for potentially suitable habitats in

2020.

Ifl relation to bats, it appears that the mapping

ifl 2020

and

2021

showed that the area contains

significant bat valoes, both in the form of significant foraging areas and breeding and roosting areas. A

breeding and roosting area has been found west of the project for pipistrelle bats and pygmy bats, and

possibly also brown and troll bats. A large proportion of the bats from here are estimated to forage

down

in the river valley over the extensively managed meadows around Bygholm

Å.

There are a few defunct alder trees in the alignment of the road on the bank of Bygholm

Å,

which could

potentially bea breeding and roosting area for bats. The size and nature of the trees make them

unsuitable for roosting in the winter, and on that basis the trees are assessed as flot suitable as

breeding and roosting areas for bats.

For a more thorough review, the environmental impact assessment refers to the Natura

2000

habitat

impact assessment io the report’s appendix 7 and the data note for the bat mapping in appendix 9.

Other nature

It appears from section

11.2.4

of the environmental impact report that Bygholm Ådal is siibject to a

wetlands declaration from

2014,

which stipulates that the area must permanently remain asa wetiand.

The declaration aiso contains a number of restrictions stating that the covered areas may not be

cultivated, converted, fertilized ur sprayed, and that ditches and drains may flot be established or

maintained without prior agreement with Horsens Municipalitv. It appears that the Danish Agency for

Agricitltitre has been consulted in connection

with

an official hearing prior to the environmental

impact assessment, but that the Agency had no comments on the project, as only Horsens Municipality

is entitled to prosecution according to the provisions of the declaration. The establishrnent of the

connecting road and the landscape bridge over the river valley is not considered to be in breach of the

declaration, as there

will

continue to be a wetland under the landscape bridge.

Tt also appears from section

11.2.7

of the environmental impact report that the nearest find of a

protected speciel that is flot an Annex TV species is an occurrence of thin-stemmed cuckoo grass from

a limestone meadow west ofGronhujvej. During the inspections

ifl 2020,

fry of the butt-nosed frog

were also observed ina waterhole in the Natura

2000 area

west of Grønhøjvej.

Noise durine the constnlctiofl hase

It appears from seCtion 4 6 6 of the enviionmental Impct report that in coflnectlon with the

execution of foundations near Bygholm

and Hatting Bæk, there is a need to frame sheet pile walis for

construction pits around the foundations

It also appears from section

7.3.1

that the noise from the ramming of sheet piles or piles will usually be

experienced as particularly annoying, as it is impulse noise. There are two bomes located

200

m from

the impact site, and a simple noise calculation of the noise propsgation has been made on that basis. It

shows that noise levels of over

dB(A) can be expected more than

300-400

m from the impact site.

The duration of the framing work is estimated to last

days, and the constrnction work is only carried

out during the daytime between

07.00

and t8.00 on weekdays, as prescribed in Horsens

Municipality’s regulations for bnilding and construction work.

has also been assessed that there is no need for significant mitigation measnres in connection with

constnictinn noise.

Noise during the operating phase

Tt appears from the envirnnmental impact report, sectinn

7.1.3,

that noise calculations have been

carried nut for the operational phase in accordance with the Danish Environmental Prntection

Agency’s guidance on noise from roads.[181 b addition, speeds have been entered nn the mads

accnrding to the mt1nicipalit)s traffic model, and the traffic count from Vrondingvej is prnjected for

2030.

It also appears that a noise propagation map has been prepared for the reference scenario, figure

7-1,

which involves a projection of the traffic to

2030

with the expected expansion nf the bnsiness area

VEGA. In this scenario, the connecting road north ofVrondingvej is inclnded. ln additinn, a noise

propagation map has been prepared for the projected cnnnection road, figure

7-2,

where the traffic

fignres, as in the reference scenario, are projected with planned nrban development nntil

2030.

It appears from the noise propagation map for the reference scenario in Figure

7-1

that the noise level

at the two potential breeding and ronsting areas for bats east nf the road is between 48-53 dB(A). From

the noise propagation map for the projected connecting road in fignre

7-2,

it appears that the noise

level at the northernmost potential breeding and rnosting area for bats east of the connecting road will

lie partly within the noise level 63-68 dB(A) and 58-63 dB(A) and that the snnthernmost potential

breeding and resting area east of the road will lie within the noise level of 53-58 dB(A).

Cooper

Tt appears, among other things, from the environmental impact repnrt’s section 4.7.3 on discharge

from the rainwater hasins, that the discharge of nutrients, environmentally hazardous substances, and

oxygen-consnming and suspended substances from the plant’s rainwater bssins is calculated on the

basis of standard concentrations on nutlet water from rainwater basins, assnming that the entire

annual discharge is cleaned through the basins. It appears from table 4-5 in the environmental impact

report that the calculated average substance concentration of copper in the discharge water from road

basins is calcnlsted to be

0.028

mg/l. It appears that the figure comes from the Handbonk published

by Vejregelgruppen Afvanding in

2020,[19]

and that it is supplemented with some data from

Faktablad on the dimensioning of vet rainwater basins.[2o] The calcnlation of material qnantities that

Bygholm

will be bnrdened with from the planned new road section is given in Table 4-6, where it

appears that the total contribntion of copper will be

0.39

kg/year.

It appears from the environmental impact report section

10.3.2

on harmful suhstances that the

environmental qnality requirement for copper in water is t.66 pg/l, and that data from the basic

analysis

2021-2027

show an excess of this suhstance in Bygholm

Å,

as the concentration is

1.717

pg/ I.

Furthermore, it appears that boss of copper from agricnltnral land constitutes a significant source of

the presence of copper in the Danish aquatic environment. According to studies carried nut by DCE,

the environmental quality requirement has been exceeded for 67% ont nf

investigsted measuring

stations, which is attributed to an increase in the content of copper in Danish agricultural land.[ail

The ahove-mentioned report from DCE indicates that by far the largest source of copper in Danish

soils primarily comes from the application of pig manure, which makes tip 8o-go%. Although there is

knowiedge that there is a certain content of copper in hrake pads, it most he expected that the reason

for exceeding the environmental quality reqoirement is primarily due to agriculture.

Furthermore, it appears that it most he assumed that the road water from the new road will he

retained in the hasins to a greater extent than is the case with the cnrrent road constroction

(Gronhejvej/Stampemollevej), since the water in future will be led through hasins dimensioned

according to the hest available technolofu’, and the water is thos both cleaned and delayed. This also

resolta in an increase in the residence time, which means some significant degradation of suhstances

soch as e.g. nonylphenol, which hass half-life of approx. a month in water. On the other hand,

according to the report, the amount of trsffic in the area will increase, and the amoont of road water

and substances sill increase, smong other things, doe to the greater drsinage of the roadway direetly

to the basin. It is to be expected, however, that the incressed cleaning will still mean a smsller

discharge ofthis.

In relation to the importance for Bygholm

Å,

it also appesrs from the environmental impact report that

there is a known mean concentration for copper in the outlet water from the rainwater basins.[22] If

the concentration for copper in table 4-5 is maintained as backgroond concentration in Bygholm

Å,

the

resulting concentration of copper at an sverage water flow of 1,600 I/sin Bygholm

and s discharge of

2.1

lis from the basins will result in a conceotration of copper in Bygholm

1.751

ig/l at a discharge

coocentration of

pg/I total copper. Tt is a worst-case scenario, which sasomes that alI the copper in

the outlet water contribotes to the dissolved fraction of the copper in Bygholm

Å.

The actoal resolting

concentration in Bygholm

will he less than

1.75t

ig/l, as part of the copper will he boond in non- or

hardly-soloble compoonds. Althoogh an inerease from

1.717

pg/l to less than

1.751

pg/l is avery

limited impact, the limit value has been exceeded.

Forthermore, it appears from the environmental impact report that, according to § 8, sobsection 3,

a starting point, an increased supply of copper cannot be permitted when the environmental quality

reqtorement has already been exceeded for copper, onless other soorces are minimized or a concrete

sssessnsent shows that the discharge will not have any signifleance in practice.

[23]

In this regard,

reference is made to the goidance for the action order, from which it is evident, among other things,

that the decision on an additional addition of harmfol sobstances is based

00 2

very specific

assessment of the significance of the impact (significance) for the condition of the water area.

[24]

Fortherrnore, it appears from the environmental impact report that the very small additional impact of

copper, which here is

0.034

ig/l in an average sitoation corresponding to a

impact on the limit

valoe, will not he decisive for whether the objectives are achieved on the ecological parameters (flsh,

small animals and plants), which most also be assessed under the ecological condition. Furthermore, it

appears that the impact is so small that it can be defined as not significant in accordance with the limit

for additional introduction ofharmful substances of 5%, which appears in the Danish Environmental

Protection Agency’s FAQ on the discharge of harmfnl substances.[25]

Overall, it is assessed in the environmental impact report that the ronoif from the rainwater basins to

Bygholm

does not lead to a deterioration of the condition of the surface water area or hinder the

fulfillment of the established environmental targets.

Alternatives

It appears from section

3.1.1

of the environmental impsct report that the selected proposal (the main

proposal) and reference scensrios must be examined in the environmental impact report.

The maj11 proposal inciuded in the environmental assessment is the scenario ifl which the requested

permit is grafited. The only alterflative that will be incitided as a basis for comparisofl for the maj11

proposal in the eflviroflmefltal assessment is the reference scenario, where permission for the maj11

proposal is flot graflted afld the project cannot be realized.

Tt appears from section

3.2

of the enviroflmefltal impact report that the reference scenario correspoflds

to the existifig environmental conditiofis (the areas currefit efivirofimefital status) afld the probable

development of the area if the project is flot carried out. If the road project is flot realized, the curreflt

land use will continue unchanged.

tn the reference scenario, the probable development of the traffic conditiofis is projected ufitil

2030.

The projection inciudes the expansion of the VEGA husifless area, with e.g. the transport company

[Vi], as well as other plafifled urbafl development until

2030,

includifig urban development

ifl

Lund. Tt

includes expansion of the harhour, reconstruction of the Touii Hall Campus and Norrestrand. Ifl

addition, New Ftattingvej and Riflgvej Syd, stage

have been constructed.

also appears from section 3.3 of the eflviroflmental iflipact report on the selection of alternatives

that, prior to the design of the applied road, three alternative routes

ifl

the area, proposed solutiofis

and 4,

iii

addition to the selected project proposal, solution

have heen assessed. In Coflflectiofl with

the public hearifig at the start of the environmefltal impact report, a numher of citizen proposals for

alternative solutions afid alignmeflts have also been suhmitted, solutiofl proposals

6, 7, 8, 9, to afid

is. The ten proposals and the applied alignment appear

ifl

figure

3-1

of the environmental impact

report.

Each proposed solution is described in more detail

ifl

sections

3.3.1, 3.3.2

and 3.3.3 of the

eflviroflmental impact report, together with an initial assessment of their traffic effect with a focus on

accessibility to the busifless area, relief from Ny Silkeborgvej-Silkeborgvej and the rest of the road

fletwork, as well as an assessment of road safety afid driving comfort in general. In addition, an overall

screeniflg of the impact of the individual proposals on natural conditions, the landscape and cultfiral

cnnditions has been carried out.

Solution proposal 8 iflvolves an upgrade of Silkeborgvej with new intersections and expansion of the

section to four lanes, which will be able to handle traffic on the overall road fletwork at an acceptable

level towards the two ramp intersections at motorwayjuflction 56a (Horsens V). The Swedish Roads

Administration is the authority for the ramp junctions, which is why an exteflsion is a state decision.

Horsens Municipality cannot therefore develop these two intersections. It appears that the solution

will result in reduced accessibility to the business area VEGA and the residential areas in Lund and the

Provstlund area

The proposed solution has not been chosen, as it does flot fulfill the project’s purpose ofincreased

accessibility afid robustness, but on the contrary is assessed to worsen existing problems with

accessibility along Silkeborgvej and at several major intersections on the approach roads to Horsens

city centre.

The proposed solution hss not been chosen, as it does not fulflll the project’s purpose ofincreased

accessibility and robustness, but on the contrary is assessed to worsen existing problems with

accessibility along Silkeborgvej afid at several major intersections on the approach roads to Horsefi’s

city centre.

Solution proposal

involves an alignment that runs from motorwayjunction 6b (Horsens C) and

parallel to the motorivay with connection to Vrondingvej. The many sharp corves along the road’s

roote do not make it possible for modolar vehicle trains to use the section, just as the desired speed of

So km/h cannot he maintained on the section. In addition, the E45 motorway is covered by a

road constroction line, which is why the alignment had to be placed at least

m from the center line

of the motonvay.

The proposed solution has not been selected, as the alignment does not provide the desired traffic

effects, neither in relation to the accessihility to the bosiness area VEGA nor in relation to the traffic

relief of Silkehorgvej.

Mapping of protected natnre has been carried oot for the area around lines

1, 2,

9 and

ifl

2020

and

2021,

and new areas with protected natnre have been registered in this connection. The routes for the

other alignments have not been inspected, as Horsens Municipality has assessed that these alignments

will not have the desired traffic effect, and are therefore not realistic alternatives to the selected prnject

proposal.

2.4

Content of the complaint

2.4.1

Authority disqiialification

The complainant has stated that the Municipality of Horsens is incompctent accnrding to Sectinn

the Envirnnmental Assessment Act in the specific case, as the approval and the concrete routing of the

connecting road is a prerequisite for a conditinnal purchase agreemcnt with a logistics company in the

area. The municipality thus has a significant financial “private” interest in the sale itseif, just as the

municipality has an interest in the sale being carried out, as it will increase investment and Incal jobs

in the municipality, which is the primary purpose of establishing the road. There is therefnre a lack of

authority on the pan of the municipality, which is why the municipality cannnt be the case-handliug

authnrity for the EIA investigation and the impact nf the cnnnecting mad on the en’irnnment in

Bygholm Ådal. The completed environmental studies should be rejected, and the impact nn the

envirnnnsent should be subject to a stricter assessmcnt by the Environmental and Fond Cnmplaints

Bnard due to Horsens Municipality’s incompetence.

impaet on the Natura

2000

area

The cnmplainant has stated that the Natura

2000

habitat impact assessment does nnt include several

relevant matters, including that the assessments are nnt sufficiently concretely formulated.

Furthermnre, the conclusions are not sufficiently justified, and it is not sufficiently described why the

protected nature, including protected habitats and speciel, will nnt be affected by the planned

connectinn mad.

2.4.2

In addition, the cnmplainants have stated that the habitat impact assessment rests on a deflcient

information base, as it does not relate to nr has identifled ali aspects that may affect the consemvatinn

objective for the Natura

2000

area. In this cnnnectinn, the complainant has referred to the

precautionary principle, which means that any doubt must be given to nature and that the authnrity

has the burden ofproof to document the absence of harmful effects. Complainants have also pointed

out that the protection of Natura

2000

areas also applies to activities notside the area, if the activity

can be expected to affect the area, nr if the acti;itv can affect migratory speciel such as birds and flsh

when they move nutside the Natura

2000

area.

The hahitat impact assessment therefore soffers from a legal deficiency and cannot form a basis for

approving the project, and the Environment and Food Complaints Board should therefore revoke the

Section

permit as invalid.

Semi-natnral dry erassland and scrubland facies on calcareons sobstratesComplainants have

qoestioned, in relation to Semi-natoral dry grassland and scrnbland facies on calcareoos snhstrates,

whether the already existing impact with nitrogen disposal from Gronhojvej, which is immediately

next to the overdrive, has been taken into account. The complainant has stated that only nitrogen

deposition from the planned road appears to have been calcnlated.

The complainant has also qnestioned whether the additional losd on the Natora

2000

area as a result

of traffic from other expanaion of the bosiness area has been taken into account.

Otter

to relation to otters, the complainant has stated that a temporary bridge is planned to be established

during the constroction phsse over t-tatting Bæk, which ;sill disrnpt the movement of otters, as otters

do not swim nnder bridges.

Brook lamurev

En relation to the brook lamprey, the complainant has referred to the fact that it appears from the

habitat impact assessment that there may be a very brat and short-term impact on individual

individnsls of the brook lamprey downstream of the discharge points for the facility’s rsinwater basins,

particolarly in relation to oxvgen and salt, but that this sill not harm Natora

2000

area popnlation of

lamprey, as it is not a breeding area. In this connection, the complainant has stated that the ådalen

participated in a wetland project in

2004

with Vejle Connty, where, among other things, spawning

gronnds were created for the fish in several places in the stresm and in the meander next to the

planned road.

The complainant has also questioned how it is ensnred that the reinjection of groundwater, which in

the complainant’s opinion is ochreous, which must be carried oot dnring the construction phase, can

be carried ont without risk of affecting the brook Iamprey, which lives in the fresh water in the stream.

Based on this, the complainants have stated that the assessment of the impact on the lamprey in the

operation and constrnction phase is not sofficient, incbuding that it is not snfficiently clarified whether

it is a breeding and resting area for the lamprey downstream from the Natnra

2000

area.

Source wealth scam snail and skewed scam snail

Complainants have stated in relation to the vertigo geyeri whorl snail and the crooked screw snail that

it appears from the habitat impsct assessment that no studies have been carried oot on the vertigo

geyeri whorl snail and the crooked screw snail. En this connection, the complainant refers to the fact

that the complainant’s advisor has registered additional alder-ash swamps in the route of the planned

road, which may constitote a habitat area for the spring snail and the narrow-mouthed whorl snail.

Groondwater lowering

to addition, the comptainant has stated that in the impact sssessment, no further investigations have

been carried out into what effect the towering of the groondwater ifl connection with the construction

of the connectiog road will have in interaction with the significant permanent towering of the

gronndwater, which must be carried out during the construction of the bogic connection center north of

the connecting road. Nor has it been assessed what significance groundwater towering in connection

with the expansion of motorw’ay Ej5 in interaction with the project itt have.

Complainants have also questioned how it can affect the well-heing and spring flow if there is a delay

or if the water level is high during the s6-week perind when the gronndwater is being lowered.

In the complainant’s view, s sample that was mistakenly nnt examined shonld be inclnded in the

assessment in order to reach s correct conclusion.

2.4.3

Provision of the habitat impact asscssment

The complainant has also stated that the consnltant whn prepared the impact assessment for the road

connection is also a consultant for the Iogistics company in the area in connection with the

constrnctinn ofa lngistics centre. On this basis, the complainant has stated that the adviser in qnestion

will not be able to appear as an impartial adviser, as there are far too many financial matters involved,

and as the adviser has, among other things, advised on traffic management from the logistics centre.

There will therefore never be sufficient confidence in the investigations and estimates carried ont by

the adviser.

Complainants have referred to the fact that the same does not apply to the habitat assessments as

under the Environmental Assessment Act, according to which it is the developer who prepares the

environmental impact report. In this connection, the complainants have referred to the fact that the

habitat regulations are based on EU law, and that in the practice of the EU Cotid of Justice, where it

has been determined that the assessment according to the habitat regnlations is the rcsponsibility of

the anthority.[26] The task shonld have been leif to another impartial adviser with no separate

financial interests in the matter.

The complainant has also stated that the conclusions of the impact assess ment have not been verified

and approved by a third party, as claimed by the municipality, as the monicipality’s advisor and

external law er have only looked at the formal reqnirements for the impact assessment and not related

to the material content, inclnding the investigations carried ont assessments and conciusions in the

impact assessment.

Annex

tV species

The complainant has stated that the prepared assessment of Annex IV species is flawed and

insufficient, and that it slso does not meet the requirements of the habitat order in relation to the

impact on bats and newts. Overall, there is not the necessary and required high degree of certainty that

the ongoing ecological functionality of the area, such as breeding and resting areas for Annex IV

species, will be able to be maintained by the construction ofa heavily trafficked connecting road.

2.4.4

fiat

In relation to bats, the complainant has referred to an appendix attached to the complaint, whicb the

complainant has had drawn up by an adviser, which states that the distance from the road route to the

nearest potential breeding and roosting area for bats is 16-34 mand not 70-80 m as stated by the

municipality, whereby the assessment of the road bridge’s impact on bats has not been carried nut no

the right basis. The complaioant has also stated that this is an importaot breediog and roosting area

for bats, which is oot mapped io the habitat impact asseasment, and that the road will affect importaot

gnide lines and resolt io the loss of some extinct alder trees, which must be assumed to be of

signiflcaot importance to the surronoding breeding and restiog areas.

Furthermore, complainants have stated that it is not snificient to only examine the hats in the limited

search field, which appears from the hahitat impact assessment, as bats can move tip to

km per

hoor. day.

In addition, complaints in relation to the operation phase have ststed that replanting as a mitigation

measore is not sofficient to maintain the ecological fnnctionality of the bat sites, as it will take many

years for the trees to grow tall. Forthermore, it is not enongh that a faona passage has been made

according to the best possihle techniqoe, as this does not say anything aboot whether damage occnrs.

The complainant has referred to the fact that in the hahitat impact assessment it has been noted that

higher screens have not been chosen, as this woold trap bats over the road between the screens.

The complainant has also stated that the bridge is

m xvide, and that it appesrs from the literatnre

that hop-overs are probably only nsable if the distsnce between the tree crowns is a maximnm of 5 m.

Fnrthermore, there is inanificient knowledge abont the effect of the mitigation messnres, inclnding in

relation to for screens and hop-overs.

The complainant has also stated that it is contrary to the habitat directive that mitigation measures

have been inclnded, as the)’ can only be taken into account in a deviation case. In this connection, the

complainant has referred to the practice of the Enropean Court ofJustice.[27] There are also

alternative solutions on the road ronte that should have been chosen instead of using mitigation

measures.

In addition, the complainant bas requested the scientific basis for the assessment in the babitat impact

assessment that the road in the operational pbase will only make the area immediately along the road

less attractive for bats, and that this will not be to an extent that will significantly affect the ecological

functionality or the popnlations in the area.

The complainant bas also referred to the noise calculations that have been made and stated that there

will be a very strong noise impact during the operational pbase along the entire road and into the

potential breeding and roosting area for bats, wbich is not in accordance with the precautionary

principle in relation to Annex IV apecies. tn this connection, the complainanta have referred to the fact

that b appears from an English study that bats usually avoid areas with large roads for tip to

1.5

km,

and that this is a road between two breeding and roosting areas respectively approx.

50-75

m and

250-

300 m from the road. Complainants have also stated that the establishment of piles will affect Annex

IV species in the river valley, including bats, dnring the constrnction phase with noise and

distnrbances. Complainants have also qoestioned whether, in connection with lowering the

gronndwater, there will be a noise impact at night whicb conld affect bata.

Large water salamander

In relation to the large newt, the complainant stated that it was foond close to the alignment of the

road and in the areas involved in the construction work. It cannot be assessed that large water

salamanders are not affected when a single adolt individnal has just been foond in the barn on a

nearby property, which in the habitat impact assessment is assessed to be on its way to rest.

The complainant has also stated that it has not been assessed wbether the road’s route nr conatruction

work may affect breeding nr resting areas for large newts in the area, and that no further investigations

were carried ont beyond the snrvey in the sommer nf

2020,

even thongh large newts were later

dncnmented in the area. Based on the above, the complainant has stated that it can be rejected that the

investigatinns and assessments carried ont remove an)’ doubt that large water salamanders are

affected by the bypass

Otwr

-t

lu relation to otters, the complainant has stated that a temporary bridge is planned to be established

during the construction phase over Hatting Bæk, which ;ill disrupt the movement of otters, as otters

do not swim under a bridge.

Pointed seed

The complainant has stated that a pointed-nosed fog was observed no a nearhy property in August

2021

and that it does not appear from the environmental impact report that the species was observed.

lrs this corinection, the complainant has stated that it cannot be ensured that habitats for the sharp

nosed seed are not damaged or destroyed when the hahitats have flot been mapped.

2.4.5

Other nature

The complainant has stated that barn owls have been observed at three surrounding addresses, and

asks whether it has been investigated jo more detail what significance the project may have for barn

owls.

Complainants have stated that at the base of several trees alung Bygholm

there are populations of

the moss species buttleaf hair star.

The complainant has stated that a short-nosed frog was observed on a nearby property in August

and that it does not appear from the environmental impact report that the speciel was observed.

2021

Complainants have also questioned

why

further

investigation has been carried out for cuckoo herb,

when it has previously been registered in Vejle County.

Alternatives

The cumplainant has stated that there has not been a real alternative to the intended route, and that

the route ifl question has been agreed from the beginning between the Municipality of Horsens and the

lugistics company. The complainant has referred to the fact that an intersectiun had been established

un Vrundingvej before the impact assessment was prepared.

2.4.6

The complainant has alsu stated that the rejection of the alternative routes is not based ons oatural

factual basis, but solely on a desire to achieve the direct access to the logistics center for optimal

operation. In the complainant’s

view,

the existing Silkeborgvej, solution proposal 8, will be able to

handle traffic satisfactorily, just as solutiun propusal

will be gentler no the natural and landscape

experience in Bygholm Ådal. Solution prupusal

should have been investigated mure clusely, as it is s

realistic proposal from the public.

2.4.7

Determination of tcrms

The complainant has also stated that there is a lack of a description of ali the project’s characteristics

and the measures that are intended to be taken to avoid, prevent ur limit and, if possible, neutralize

significant harmful effects on the envirunment, which the develuper must implement, and an)’

monitoring measures, cf. the Environmental Assessment Act Section

27,

subsection s.

The complainant has also stated that there is no requirement in the §

permit that the lead planting

must consist of non-insect pollinating and fruit-bearing shrubs and trees to avuid insects being

attracted, whicb is othenvise assumed in the habitat impact assessment,

2.4.8

Other complaints

The complainant has stated that the project is in breach ofa registered easement, which stipulates that

the project area must permanently remain as a wetland. The complainant does not believe that it

makes sense to show a negative impact on the area when there is this wetlands declaration for the

area. Complainants have also referred to the fact that Horsens Municipality csnnot restrict the wetland

area.

The complainant has also stated that it is not oeeessary for a new connecting road to be estabhished, as

the Roads Direetorate has stated that traffic in the area will be able to flow onhindered in a number of

years, regardless of whether the connecting road is established.

2.5

Horsens Msinicipality’s cornments on the complaint

Horsens Municipality has submitted comments to the complaint on 28 March

18November2022.

2022,

4 July

2022

and

Authority disquahification

Horsens Municipality has noted that, in the specific case, the mnnicipality is hoth the land seller,

developer and authority in relation to the road connection. It is not possible to avoid this dual role, as

the mnnicipality is, among other things, granted anthority by the Environmental Assessment Act.

Snbstittition cannot take place, as one municipal council cannot be replaced by another. The

mnnicipahity has therefore taken a number of measures to ensnre that the authority’s competence does

not influence the decision hy having organized itseif in the case in a way that ensures handling nf

conflicts of interest and honors the reqnirements of Section

of the Environmental Assessment Act

and Section

of the Environmental Assessment Executive Order.[28]

2.5.1

It also appears that in relation to the handling of the road project, the municipality has had a

functional division, which has been carried out tip to the level of municipal director, after which there

is an authority track and a developer track within the municipahity.

Tt appears that the anthority track must issue the relevant permits for the project, and that the track

inchudes planners, natnre and environmental professionals as well ss construction case handlers. The

track is further divided into an authority part relating to the planning process related to the municipal

plan supplement and an anthority part relating to the specific project and the issning of the necessary

permits in that connection.

It appears that the developer track includes constructors and engineers as far as the constrnction and

execution of the concrete road prnject is concerned, as well as the preparation uf environmental impact

assessments etc. for the project.

Tt also appears that stricter assessments have heen made with regard to the assessments, permits and

approvals related to the road construction in question, which Horsens Municipality as an authority has

csrried out and issued. This has resulted in some ven’ comprehensive assessments, justifications and

stricter conditions in decisions issued by Horsens Mnnicipality as authority for the road prnject to

Horsens Municipahity as developer.

Horsens Municipality has also referred to the fact that the municipahity, as part of the municipal power

of attorney and the general operation of a municipality, can buy and sell real estate, and that it is not

unusual for a municipality to he s contrscting part)’ in a transaction relating to real estate, to which

there is attached conditions for the finality of the transaction.

Fiirthermore, regardless of the content of the purchase agreement, the logistics company has applied

for snd received permissioo to establish the logistics company, and the condition in question in the

porchase agreement regarding the establishment of the road is henceforth without legal significance. It

has not been possible for the logistics company to order a specific route. It is also not onusual for the

boyer to have wished for an efficient road connection to the business area.

2.5.2

Natura

2000

hahitat iinpact assessment

Semi-natural dry arassiand and scrubland facies on calcareoos substratesHorsens Municipality has

referred to the fact that in the habitst impact assessment an adequate assessment of the impact from

nitrogen deposition has been carried out, where the cumulative effects with the existing deposition are

also taken into account, which is consistent with the practice of the EU Court of Justice.

Otter

Horsens Municipality has noted that in the habitat impact assessment, the importance of the road

project for otters in both the construction and operational phases has been adeqoately explained. The

design of the project as a landscape bridge ensores the necessary fauna passage, as described in the

management plan for otters.[29]

Brook lamprey

Horsens Municipality has noted that a thorough assessment of the project’s possible impact on the

brook lamprey has been carried out in the habitat impact assessment and the environmental impact

report, and that there is no assessment of a threat to the brook lamprey.

Horsens Municipality has also noted that the reinjection of the groundwater takes place ina closed

system, where the groundwater does not come into contact with oxygen, which is why the reinjection

of the groondwater will not cause a negative impact on the fresh water quality in Bygholm

Å.

Vertigo geyeri whorl snail, narrow-moothed whorl snail and Desmoulin’s whorl snail

Horsens Monicipality has noted that the natural types and habitats of the habitat area have been

mapped by the Danish Environmental Protection Agency. On this basis, it has been conciuded that the

eastern part of the habitat area does not contain habitat types that can support the presence of spring

snails or narrow-mouthed whorl snails, and no snails were found. b the habitat impact assessment, it

is assessed that there is no risk of impact on the species.

Horsens Municipality has noticed that snails do not migrate between habitats in the same way as

mobile species, since the size of the three species of snails is only approx.

1.5-3

mm.

The municipality has also noted that there is a distance of at least

240

m between the potential habitat

for the Desmoolin’s whorl snail within the habitat area and the pressurized water-affected bog area

outside the habitat area just east of the northern section of the road trace, and that the areas in

between consist partly of a road and partly of dry grassland nature, which does not constitote a

suitable habitat for species of snails. Should a population of snails still be found in the alleged spring,

the municipality assesses that a possible population of snails cannot interact with any populations

within the habitat area, as the species will not spread via onsu table habitat types. The alleged soorce

mass is isolated away from the habitat area, and any population in that source mass will not be covered

by the possible populations in the Natura

2000

area and therefore not covered by habitat protection.

Groundwater lowering

Horsens Municipality has noted that the lowering flinnel does not affect the Natura

2000

area, and

that it is also a temporary groundwater lowering. The municipality has also noted that there are no

cumulative impacts from other groundwater lowering due to the distance, and that it is not the

intention of the Environmental Assessment Act that conditions which are purely hypothetical are also

included.

Provision of the impact assessrnent

Horsens Municipality has noted that the consulting company which prepared the impact assessment is

both an adviser to the iogistics company in the area and Horsens Municipality as the developer of the

connecting road. The adviser has not at any time acted as an aothority adviser for the municipality in

the case and will not do so either. The municipality, as an authority, entered into negotiations with two

other consoltancy firms, which have reviewed the relevant consultancy firm’s assessments, etc. The

adviser’s actions or client reiationships with two different developers in the same complex of cases

have therefore not influenced the process, as the consultancy company in question is not an adviser to

the anthorities in the case, which is why questions about the adviser’s disquaiification in that

connection are irrelevant.

2.5.3

Horsens Monicipality has also noted that the mnnicipaiity has carried oot independent comment

rounds of the consoltancy company’s habitat impact assessments to ensore that the Hahitats

Directive’s requirements for an appropriate assessment have been met before the municipality has

issoed the relevant permits. According to the hahitat guidelines, it is Horsens Municipality’s

responsibility to ensure that the matter is sofficiently informed, and that ali aspects of a plan or project

are identified and checked, when and if this may affect the consenation objectives, etc. in a Natura

2000

area, which the municipality has done in this case.[3o] The municipality does not agree with

complaints that it can be inferred from the practice of the European Court of Justice that the hahitat

impact assessment most be prepared in ali details by the responsible authority.

Annex IV speeies

Bat

Horsens Municipality bas noted that the area bas been examined for bats in accordance with the Road

Directorate’s guidance Bats and major mads, as well as the precautionary principle, according to which

possible breeding and roosting areas have been treated so that the) are in fact breeding and roosting

areas. tn the municipality’s view, the investigations carried oot, inciuding the survey area laid out, are

folly comprehensive and sufficient in relation to the purposes of the investigations and the scope of the

intended project.

2.5.4

Horsens Municipality bas noticed that the complainant’s measurement of the distance from the road

to the potential breeding and roosting areas for bats is significantly flawed, as it was not measured

from the road route itself. In addition, the municipality bas referred to an accompanying annex, from

which it appears that during the processing of the case, the municipality has stated that the distance

from the road to the potential breeding and resting area is approx. 70-80 m.

Horsens Municipality bas noted that the question of the exact distance to the potential breeding and

resting area is not decisive in this case, as the assessment of impact is based on the road’s calculated

traffic bad and pattern and the nature of the resulting potential noise and light impact, and that it thus

does not change the conclusions drawn in the habitat impact assessment and the environmental

impsct report.

tn relation to the hat boxes, Horsens Municipality has noted that they are intended to prevent damage

to potential roosting trees, which are assessed as being of very poor quality in relation to ose asa

sporadic daytime roosting area and completely unsuitable as a breeding area ur winter roosting area.

Seen in the context of the quality and extent of breeding and roosting trees bocally in the river valley, it

is considered very unlikely that the removal of the extinct alder trees in question can affect the

ecological functionality of the area for bats, especially when bat boxes are set tip in the area, which

overcompensate for the highly questionable day rest areas, possibly in the listed

2-4

trees.

Horsens Monicipality does not agree with complaints that it follows from the practice of the Eoropean

Coort of Justice that preventive measures cannot he osed in relation to the ecological fonctionality of

Annex IV species hreeding and resting areas. The municipality has also noted that it is asstimed that

the preventive measores are functional at the time of the interventions and/or when the road or facility

is pot into ose. It would not be possible to place roads anywhere in Denmark if the roads are not

allowed to cross areas where there is hat activity, and preventive measures have been used that

sofficiently ensore the maintenance of the local populatioos.

Horsens Municipality has also noted that the lowering of the groundwater does flot caose noise that

coold affect Annex IV species.

In addition, Horsens Monicipality has noted that if the Enviroomental and Food Complaints Board

does not believe that it is sofficieotly clear what the lead plantiog most consist of, it has mentioned the

possibility of inserting soch a condition in the Section

permit.

Newt and other amohibians

Horsens Municipality has referred to the fact that, as shown in the hahitat impact assessment, detailed

field investigations have been carried oot ifl

2020

and

2021 ifl

relation to large flewts and other

amphibians, incloding the pointed frog.

Horsens Mooicipality has noted that conditions have been set for the establishment of an amphibiao

fence, and that it is adequate in relation to preventing popolatioo-redocing killings and distorbances of

individoal individoals. The complainant’s observations of the nessi and the two frogs do not change the

assessmeot, as the observation was made outside the project area.

Other nature

Horsens Municipality has noticed that the bott-leaved hair star is red-listed and not covered by the

species protection order or listed as an Annex IV species, which is why the species is not covered by the

strict protection according to the hahitat directive. A voluntary agreement has been made with the

developer that the defsinet alder trees will be polled aside in cooneetion with felling, and will remain in

the area as contiooed habitat for the butt-leaved hair star.

2.5.5

Horsens Municipality has also noted that the barn owl is a red-listed species and not covered by the

species consenatiori order or listed as an Aonex IV species. The vast majority of barn owis

itt

Denmark

breed in open farm buildiflgs or nest boxes, and no bnildings stotable for nesting bans owls will be

demolished or felled in connection with the project, which is why this is not relevant in this case.

In addition, Horsens Muoicipality has ooted that coekoo is not an Aonex IV species, and that the

occurrence of coekoo is registered oo the limestone outcrop in the Natura

2000

area. The impact of the

ehalk overgrazing in qoestion is assessed

ifl

its entirety

ifl

the habitat impact assessment.

2.5.6 Alternatives

Horsens Muoicipality has noted that, in eonnectioo with the sale of land in the bosiness srea, a

number of different alternative road eoonectioos were considered, and that the proposed aligomeot is

the one that is assessed to have the least negative impaet

oature aisd landscape and at the same

time fulfills the purpose of the road sshieh among other thmgs is secoring the traffic mfrastroctore

•-.

The municipality has assessed that the road is necessary from a socio-economic perspective, and in

weighing tip ioterests, the socio-economic value and necessity as well as local traffic safety have been

central to the chosen route.

Horsens Monicipality has also ooted that according to the Environmental Assessment Act there is a

requirement that reasonable alternatives must be described jo an environmental impact report, and

that there is therefore no requirement that ali considered alternatives most be treated in detail. In the

monicipality’s opinion, the assessments carried ont in the environmental impact report of a total of

alternative alignments are therefore sofficient.

Horsens Monicipality has also ooted that the jntersection at Vrøndingvej has been established to

ensure smooth flow of traffic in the area and to create access to a rainwater basin. b addition, several

of the alternative alignments descrihed had coonections at the crossing.

Horsens Municipality has also noted that the o alternative is described in the environmental impact

report, and that the o alternative will not be able to ensore the

flow

of traffic in the area.

Determination ofterms

Horsens Mnnicipality has noted that Section

of the Environmeotal Assessment Act has been

complied

with,

and has referred to the Sectioo

permit containing a nnmher of conditions. Based on

the environmental impact report, it has been assessed that there is no need to estahlish separate

monitoring measures.

2.5.7

Other rcinarks

Horsens Monicipality has noted that the connecting road does not contravene the provisions of the

wetlands declaration, and that, in addition, it is not a matter that falls under the competence of the

Environmental and Food Complainta Board, as there is no decision in the legal sense in relation to the

question of the declaration.

2.5.8

2.6 New inforissation during the proce.ssing of the case

September

2022,

Horsens Municipality suhmitted a response to the Environmental and Food

Complaints Board’s hearing, where the board asked the municipality to explain in more detail screens

and planting in the project, which prevent damage to bats. It appears from this that the client’s adviser

has drawn

op a memorandum, which Horsens Monicipality, Nature and Environment, which the

authority

has reviewed and agrees

with.

The prerequisites for the assessment of whether the ecobogical functionality of breeding and roosting

areas for bats

will

be damaged as a result of the project are, among other things, detailed in the note.

It appears from this that the primary condition for the assessment of the ecological functionality of

breeding and roosting areas for bats

will

not be damaged is that the project does not affect suitable

hreeding and roosting areas for bats. In addition, the potential barrier effects between breeding and

resting areas and foraging areas asa result of the road construction are averted

ensuring the best

possihle fauna passage in the Bygholm Ådal, including for bats, by establishing the road construction

aa a landscape bridge with large clearance and openneas under the bridge, which according to The

Road Directorate’s gnidance on fauna passages is important for a well-functioning fauna passage.

The screening on the landscape bridge and the guide planting will alao be established in accordance

with the

Road Directorate’s instructions to ensure that the fauna passage will function as hest as

possible in relation to ensuring the ecological functionality of breeding and roosting areas for the hat

species in the area. The screens on the bridge are only installed as an additional security in relation to

:---

::-,

individual protection of the medium-high fl3ing bat species. En this connection, reference is made to

the fact that it appears from the Road Directorate’s instructions that it may be necessary to mount

screens on the sides of bridges, but that the instructions do flot contain recommendations for specific

heights or the design ofscreens. En connection with the project, it has therefore been chosen to

establish screens at a height of

1.6

m, which corresponds to screens on similar newer landscape

bridges.

The guide planting must complement the landscape bridge to ensure the hest possible function of the

landscape bridge, which ensures that the primary guide line in the area, Bygholm Ådal, will continue to

function as the primary guide line. According to the Road Directorate’s instructions, the guide planting

must flot be significantly higher than the screens, which is why it has been chosen that the gnide

planting must have a height of at least

2.5

m on both sides of the road. Until the gnide plants have

grown, fences are set tip that are tightly meshed as recommended in the Road Directorates guidance

on fauna passages. Leader planting of 5 m is deliberately flot chosen to minimize the risk of shelter

being formed between the leader planting, where insects can gather during periods of wind.

In the response to the consultation, it is generally assessed that the planned heights of screens and

gnide plantings best reduce the risk of traffic fatalities on both the road area and the landscape bridge,

and that a higher height of the gnide plantings and screens will very likely increase the risk of traffic

fatalities to individnals.

In additinn, based nn the flight patterns nf the individual species, it has been assessed that mnst

species will use the primary control line under the landscape bridge, and that the less structure-bound

species will fly at such a great distance from the control plantings and screens that the planned heights

s’ill redtice the risk of collision considerable.

It also appears from the note that it has been assessed that hop-overs are flot relevant for the

ecological functinnality of breeding and roosting areas for bats, as it relates to the individual prntection

ofbats.

3. The Environmental and Food Coinplaints Board’s commcnts and decision

The follotving members of the Environment and Food Complaints Board have participated in the

processing of the case: Birgitte Egelund Olsen (chairman), formerly countyjudge Eva Staal and cotinty

judge Olaf Tingleff, as well as the lay members Pelle Andersen-Harild, Lene Hansen, Kristian Pihl

Lorentzen and Jens Vibjerg.

3.1

Examination by the Environmerital and Food Complaints Board

This appears from §

ii,

subsection

in the Act on the Environmental and Food Complaints Board,

that the board can limit its review of a decisinn to the circumstances complained of. However, it

appears from the drafters of the provisinn,[31] that the board has the opportunity and, depending on

the circumstances, the duty to inchide other matters than what has been complained about, e.g. the

question of compliance with applicable EU law nr basic principles of administrative law.

Et also follows from §

ii,

subsection

in the Act on the Environment and Food Complaints Board, that

the board can limit its examination to the most significant matters.

Ifl this complaint, the Environment and Food Complaints Board has found occasion to deal with the

following matters:

Authority capacity

Impact on targeted sorface water areas

Impact of Natura

2000

area no. 236, Bygholm Ådal

Provision of the impact assessment

tmpact on Annex IV species (hats, otters and newts)

Other nature

Alternatives

The Environmental and Food Complainta Board has, in continuation of thia, found occasion to atate a

numher of mattera which the firat instance

will

have to take into accoont in connection with a renewed

examination of the case, aee more in section 3.3.

The Environmental and Food Complaints Board notes that matters relating to easements and

declarations are not regulated in the Environmental Assessment Act, which is why the board does not

have competence to deal

with

this issue. The board also does not have competence to consider whether

it is necessaty to estahlish the connecting road, as the board cannot decide whether the project itseif is

appropriate, but can only assess legal and discretionary issues connected with the Section

permit.

3.2

The Environmental and Food Complaints Board’s coinnsents

3.2.1

The legal fransework

The Environmental Assessment Act

The purpose of the Environmental Assessment Act’s roles is to ensure that an assessment of the effects

on the environment is carried out as the hasis for the decision to grant or refuse permission for project

types that can significantly affect the environment.

The environmental assessment rules mean that projects that can be expected to have significant

impacts on the environment may not he started before the authority

has

given written permission to

start the project (environmental assessment obligation).

The developer ofa project suhject to an environmental assessment must, according to Section

20,

subsection of the Environmental Assessment Act.

prepare an environmental impact report that

contains an assessment of the project’s impact on the environment. Tt follows from section

20,

subsection 4, no.

that the information that the developer must provide about the applied for project

in the environmental impact report, cf. suhsection

in an appropriate manner must demonstrate,

describe and assess the significant direct and indirect effects of the project on biological diversity, with

particular emphasis on species and habitats protected under the Habitats Directive[32] and the Birds

Directive.[33]

This follows from Section

24,

suhsection of the Environmental Assessment Act.

that after receiving

the environmental impact report from the client, the authority must

review

the report with the

involvement of the necessary expertise in order to ensure that it meets the requirements in section

20.

The authority

can,

if necessary, obtain additional information from the client to meet the requirements

in section

20,

PCS.

After reviewing the environmental impact report, the

authority

must send it for consultation with the

authorities concerned and the public, cf. section

24,

subsection of the Envirunmental Assessment Act.

After the consultation, the authority must make a decision according to Section

of the

Environmental Assessment Act on whether the project can be approved. The decision is made on the

basis of the developer’s appiieation, the environmental impact report, any additional information, the

resoits of the hearings that have been carried mit and the anthority’s reasoned conciosion.

According to section 5, no. 5, letter d of the Environmental Assessment Aet, ef. letter c, the authority’s

reasoned conciusion deals with the project’s signifleant impacts on the environment, taking into

account the results of the aothority’s investigations of the environmental impact report, aoy additinnal

information presented by the chent, any relevant information received via the hearing and the

anthority’s men snpplementary investigation, ef. seetion

24,

snbsectinn

An §

permit must inciude the reasoned conciusion and contain ali the environmental conditions

attached to the decision, a deseription of ali the projeet’s eharaeteristics and the measnres that are

intended to be taken to avoid, prevent or limit and, if possibie, nentralize significant harmfui effects on

the environment to he implemented by the developer and any monitoring measures. This follows from

section

27,

snbsection of the Environmental Assessment Act. s.

The authority can, aceording to §

27,

sobseetion nf the Environmental Assessment Act.

attach

conditions to a §

permit with a view to fnifiuiing the purpose of the Act. Terms mnst be

proportionate to the nature, location and dimensions of the project as weH as the extent of its effects

on the environment.

If the project has significant harmfnl effects no the environment, the authority must, according to

Sectinn

27,

snbsection of the Environmental Assessment Act. 3, alan set conditions for the ehent’s

monitoring thereof.

The relationshin between the Environmental Assessment Act and the Water Framework Directive

According to Annex 7 of the Environmental Assessment Act, cf. §

20,

snbsectinn

no. 6, the

environmental impact report mnst contain a deseription of the snrroundings which may be

significantly affected by the project, including e.g. water, as weH as contain a descriptinn of the

prnject’s short-term as weH as long-term effects on the environment.

The Water Framework Directive[34] estabhshes and determines the framewnrk for planning and

impiementing measnres and monitoring the water envirnnment in the EU member states. The

directive stipulates, amnng other things, that the Member States must delimit the individnal river

basins within their national territory and assign them to separate river basin districts for the purposes

of this directive. According to Article

the overall pnrpnse nf the directive is to estabhsh a framework

for the prntectinn nfstreams and lakes, transitinnal waters, cnastal watcrs and grnnndwater, which,

among otber things, prevents fnrther deterioration and protects and improves the condition ofaquatic

ecosystems.

Accnrding to the directive’s articie 4, snbsectinn

letter a, nos. i)-iii), Member States must, when

implementing the action programs reflected in the watershed plans, i.a. implement the necessary

measnres with a view to preventing the deterioration of the condition of ali surface water areas,

subject, however, to the application of the options for derogation that follow from snbsectinn 6 and 7.

With corresponding reservations and snbject to possibie time extensinns pursnant to snbsection 4,

Member States are further obliged to prntect, improve and restore ali snrface water areas as weil as

artificial and beavily modified water areas with a view to achieving good cnndition nr gond ecological

pntential and gnod chemical condition for snrface water by

2015

at the latest.

According to the Water Framework Directive, Articie 4, snbsectinn 7, tbere is no breach of the directive

in i.a. the cases where the faiinre to prevent the deterinration nf the condition of a surface water area is

dne to new changes to the physicai cbaracteristics of the snrface water area, and provided that a

number of specified conditions are all met. Among nther things. the changes mnst be justified by the

fact that significant public interests and/or the beneficial effects for the environment and society upon

achieving the target must be less than the beneflcial effects resulting from the new changes or changes

for the health of the population, the maintenance of human safety and sustainable development.

Regarding the relationship with the

ELA

Directive, the Court of Justice of the European Union has

stated in the Land Nordrhein-Westfalen judgment that the provision in Articie 6 of the EIA Directive,

which relates to the information that must be made available during the procedure for a permit for a

project, must be interpreted as follows, that an EIA process must inciude the information necessary to

assess the projects impact on the water environ ment, taking into account the criteria and obligations

laid down in accordance with the water framework directive, cf. water framework directive article 4,

sobsection

1.[35]

The provisions of the Water Framework Directive are implensented in Danish legislation in particular

in the Water Planning Act[36] and the Environmental Objectives Act.[37]

The Water Planning Act contains general provisions on water districts, authorities’ responsibilities,

environmental goals, planning and monitoring, etc. According to section 7 of the Act, subsection

the

Minister of the Environment and Food Iays down rules that determine and specifv specific

environmental targets for the watershed districts’ individual stirface water bodies and groundwater

bodies, including rules on artificial and highly modified surface water hodies, deadlines for meeting

environmental targets and less stringent environmental targets. Concrete environmental targets for

the individual surface water areas, etc. is laid down in the environmental target order.[38]

With a view to meeting the concrete environmental goals, the Minister for the Environment and Food,

pursuant to §

19,

subsection

on the basis of the basie analysis, monitoring results and other relevant

knowledge for each watershed district, an action programme. Action programs for each water area

district are laid down in the action order.[39] The effort programs include, among other things specific

measitres ajmed at individual water areas. The executive order also contains an overview of the basie

measures and general supplementary rneasures of the action programmes.

This appears from section 8, suhsection of the executive order.

that the authority can only make a

decision that involves a direct or indirect impact on a surface water area or a groundwater body where

the environmental objective is met, if the decision does flot resolt in a deterioration of the condition of

the surface water area or groundwater body.

According to section 8, subsection 3, the authority can only make a decision that involves a direct or

indirect impact on a surface water area or a groundwater body where the environmental target is not

met, if the decision does flot result in a deterioration of the condition of the surface water area or

groundwater body, and does not hinder the fuiflilment of the established environmental target,

including through the measures established in the action programme. When assessing whether the

decision will hinder the fulfillment of the established environmental objective, it must be taken into

account whether the impact is neutralized later in the planning period.

The Danish implementation of the EIA directive also constitutes a basie measure according to the

water area plans. This means that in connection with the proceedings under the Environmental

Assessment Act, the environmental objectives and water quality must be descrihed, and it must he

assessed whether the project will be able to influence these and, ifso, whether the project will

constitute an obstacle to achieving the set quality objectives. In connection with this assessment, it is

particularl) Important to consider the possible cumuIatie effects [401

It will alan constitnte an obstacle to the fulfillment of environmental ohjeetivea if a municipality grants

a permit which impliea that the eatablished environmental objectives, which are aaaomed to he

achieved in the second

(20

15-2021) or third

(2025-2027)

planning period, cannot be achieved before

hefore the deadline.[41]

The relationahip hetween the Environmental Assessment Act and the habitat regulatinna

This followa from Article 6, subsection of the Hahitats Directive.

3,[42]

that the national authorities

only give their apprnval to a plan nr prnject that may significantly affect a Natora

2000

area, once they

have ensured that the plan or project does not damage the integrity of the aite.

Article 6, subaection of the Habitats Directive 3, also appliea in cases where the authority’s approval of

the prnject is given in the form ofa permit pursuant to Section

of the Environmental Asseasment

Act. Permissinn will thus not be granted for a project pursnant to Section

of the Environmental

Assessment Act if the prnject could damage a Natura 2000 area integrity in violation of Article 6,

subsection nf the Habitats Directive. 3.

Article

12,

subsectinn of the Habitats Directive s, also obliges the Member States to introduce a strict

protection system in the natural range nf the animal species mentioned in Annex IV nf the directive.

Accnrding to letter (d) of the regulation, the scheme must inclnde, among other things, a prohibition

against damage nr destrnction of breeding or resting areas.

Article 6, sobsectinn of the Habitats Directive 3, nn the protection of Natura

2000

areas and Article

12,

paragraph

letter d, on the prntectinn nf Annex Wspecies is in Danish legislation mainly

implemented in the habitat order.[43)

Sectinn 6 of the Hahitats Executive Order, subsection s, thtis states that, before making a decisinn

pnrsnant to the provisions mentioned in § 7, the authority mnst make an assessment nf whether the

project in itself, nr in connection with other plans and projects, may affect a Natnra 200n area

significantly. If the authority assesses that the project may significantly affect a Natura

2000

area,

pnrsuant to § 6, snbsection

2,a

detailed impact assessment nf the prnject’s effects nn the Natnra

2000

area is carried nut, taking mIo account the conservation objective for the area in questinn. If the

assessment shnws that the project

will

damage the integrity of the international nature protection area,

no permit, dispensation or approval can be granted for the applicatinn.

Similarly, it follows from § to, subsection of the habitat order. s, no. s, that when administering the

provisions mentioned in §

and § 8, a permit, dispensation, apprnval, etc. cannot be granted if the

applied for coold damage nr destroy breeding nr resting areas in the natural distribution area of Annex

tV- species.

When isaning a permit, the authority most, in accordance with section

25,

snbsectinn of the

Environmental Assessment Act.

Iben also ensure that the project ;ill not damage nr destrny

breeding or ronsting areas in the natnral range of Annex tV species.

Incapacity ofauthority

Sectinn

40,

subsection of the Environmental Assessment Act. s, stipulates that an authnrity which

prepares plans nr programs covered by this Act, nr which is both the client and authnritv for an applied

for prnject covered by this Act, must carry

nut

its tasks

and powers in

an objective manner. It also

appears from sectinn 40, sobsection

3, that

authnritv that is the

developer nfa project cnvered

this Act may not process

the application for the prnject and makes decision nn it, nnless an

apprnpriate separation between incompatible functinns bas

been ensnred within

the suthority in

3.2.2

connection with the performance of these tasks and powers. Such a conflict of interest can, according

to the EIA directive, i.a. countered through a fonctional separation or at least an organizationally

separate performance oftasks.[44]

According to the drafters, Section

of the Environmental Assessment Act is suppiemented hy the

general roles of Danish law on handling official disqualification. tt also appears from the processors

that in cases where snbstitntion is not possible and an otherwise incompetent authority participstes in

the processing of a case, it should be noted on the case that the person in qoestion was foond to be

incompetent, bot still contributed, and the resson for this shonld also be stated. Depending on the

background of the disqoalification, particularly high demands should be placed on the provision of the

relevant information base in the case, so that others who participate in the processing of the case have

the opportunity to follow snd assess the facts and the premises for the decision of the csse.[45]

This is forther apparent from §

15,

subsection of the environmental assessment order. s, cf. the

Environmental Assessment Act §

40,

subsection 4, that in order to prevent official disqualification, a

municipal council, etc. csrry out a separation of tasks and powers when screening and environmental

assessment of plans, programs and projects in accordance with the law. Awthority disqualification

must, according to section

15,

subsection

is songht to be resulved hy snbstitntion, hy which it is

nnderstood that a secondary or superior authority takes over the case from the disqualified anthority.

Tt also appesrs from section

15,

subsection 3, that if snbstitntion according to suhsection

is not

possible, the disqualified authority must, taking into scconnt the scope and complexity of the project,

by law ensure as a minimnm that the employees and managers who process applicstions and make

decisions on behalfof the EIA authority are not the same as those, who apply for the specific project.

The reason for authority disqualification according to snhsection 3, and the specific handling thereof

must be noted on the case and appear in the decision, cE section

15,

subsection of the Environmental

Assessment Order. 4.

The Environment and Food Complaints Board initially notes that Horsens Municipality has made a

decisiun pursuant to §

of the Environmental Assessment Act regarding a project where the

municipality itself is the developer, and that there is therefore, as a starting point, authority

disqnalification.

The Environmental and Food Complaints Board agrees with Horsens Municipality that, in this

situation, substitution cannot take place for another subsidiary or superior authority. The board has

emphasized that the original competence is vested in the municipality, and that it cannot, as a rule, be

left to another anthority without expresa statutory authority. The board has also emphasized that the

consideration of ensuring the necessary expertise is hest enanred by handling the case in the

municipality, as there are no other anthorities that have the necessary local Imowledge nr that

repreaent the municipality’a citizens in a similar way. The bnard has also emphaaized that, according to

the Enironmental Assesament Act, it is assumed that authorities can be disqualified, and that the law,

including no the basis ofit, lays dnwn special precantions for cases with such a conflict ofinterest.

A majority in the En;ironment and Food Complainta Bnard finds that Horsens Municipality has

ensured an appropriate separation between incompatible ftinctions in connection with the

performance of taska and powers under the Environmental Assessment Act, cf. the Environmental

Assessment Act §

40,

subsection 3, and as embodied in §

15,

suhsection of the environmental

assessment order. 3.

The majorit) has placed emphasis on the fact that

is clear from the §

permit that

is two different

departments in Horsens Municipalit) that has e been respectn ely the de’ eloper who has applied for

the project and the authority that has processed the project application and made a decision on §

permission for the project. tt also appears from the case that two separate aothority tracks and a

developer track have been established in the municipality to ensore an appropriate division of

incompatible tonctions in connection with the road project. The majority has also emphasized that it

appears from the information in the case that the division in Horsens Municipality has heen carried

otit tip to the level of monicipal director.

The majority notes that the fact that an advisory company has also carried out tasks for others, which

to a certain extent are related to the specific project, does not in itseif mean that the adviser is

considered not to he impartial. The majority notes in this connection that the advisor in question has

been an advisor for the logistics company in the husiness area and for the monicipality as the

developer of the connecting road. The consoltant has thos not advised Horsens Monicipality as an

aothority in the matter.

A minority (Pelle Andersen-Harrild) finds that Horsens Municipality has not ensured an appropriate

separation between incompatible functions in connection with the performance of tasks and powers

under the Environmental Assessment Act, cf. the Environmental Axsessment Act §

40,

stihsection 3.

The minority has emphasized that the necessary separation hetween incompatihle functions has not

been ensored, as in practice there is no real and actoal division hetween the incompatihle fsinctions

internally in Horsens Municipality.

3.2.3

Impaet on targeted sorfaec water areas

3.2.3 Rr 2) lmpact an monitared badies af surface water

The Danish Environment and Food Board of Appeal initially establishes that the environmental

objective for Bygholm

is good ecological and chemical status.

According to Article 2, no. 21, of the Water Framework Directive (WFD), ecological status is an

expression at the quality of the structure and tunctioning of aquatic ecosystems associated with

surtace waters, classified in accordance with Annex V, and, according to no. 22, good ecological

status is the status ofa body of surtace water, so ciassified in accordance with Annex V. No. 24 of the

same Article turthermore sets out what is understood by good surtace water chemical status.

According to Articie 4(1)(a)(i) at the WFD, member states must implement the necessary measures to

prevent deterioration of the status of al! bodies at surface water. The same obligation is stated in

Articie 4(1)(b)(i) in relation to preventing the deterioration of the status of ali bodies ot groundwater.

According to Annex V, paragraph 1.1.1 at the WFD, quality elements for the ciassification at

ecological status for rivers inciudes pollution by other substances identitied as being discharged in

significant quantities into the body at water. Paragraph 1.2.1 turthermore inciudes a table at physico

chemical quality elements associated by a definition ot high, good and moderate ecolagical status in

rivers. In respect ot specitic non-synthetic pollutants, this paragraph states that good status is when

the concentration does not exceed the standards set in accordance with the procedure described in

Annex V, paragraph 1.2.6.

The Court at Justice at the European Union (CJEU) established in the Weser judgment that Article

4(1)(a)(i)-(iii) must be interpreted as meaning that the member states are required to refuse

ti’

authorisation for an individual project where it may cause a deterioration of the status of a body of

surface water or where it jeopardises the attainment of good surface water status or of good

ecological potential and good surface water chemical status by the date laid down by the

directivej4 Among the reasons for this is that the condition for a derogation as provided for by

Articie 4(7) is that alI practicable steps are taken to mitigate the adverse impact on the status of the

body of waterj47

The WFD does not specifically define what amounts to a deterioration of the status of a body of

surface water. However, if follows from the CJEU Weser judgment that the concept of deterioration

of the status of a body of surface water must be interpreted as meaning that there is a deterioration

as soon as at least one of the quality elements falk by one class, even if that fall does flot result in a

fall in classification of the body at surface water asa whole. However, if the quality element

concerned is already in the lowest class, any deterioration of that element constitutes a deterioration

of the status of a body of surface waterjJ

ln the Association France Nature Environnement judgment, the CJEU furthermore established that a

temporary, short-term deterioration without lasting consequences can also amount to a

deterioration within the meaning of the WFDI4J

Furthermore, the CJEU in ts Land Nordrhein-Westfalen judgment concerning the WFD and

monitored groundwater held that a similar uriderstanding must be applied to the concept of

deterioration of the status irrespective of whether it is surface water ar groundwater.JQ1 The CJEU

also held that although the classes provided for in Annex Vare decisive for determining whether

there is a deterioration, after a body of surtace water has been classified in the lowest class, further

deterioration of the status of that body of water will legally no anger be possible.fj

The judgment furthermore states that the concept of deterioration of the status of bodies of water

must be interpreted by reference to a quality element and a substance and that the threshold

beyond which breach of the obligation to prevent deterioratiofl of the status of a body of water is

found must be as low as possible, which entails that the failure to observe one of the quality

elements referred to in the WFD definition of good groundwater chemical status constitutes a

deterioration of the chemical status of the body of groundwater concernedjj

The CJEU has subsequently held that any subsequent increase in the concentration of a pollutant

that, with reference to Directive 2OO6/118j, already exceeds an environmental quality standard or

a threshold value set by the Member State also constitutes a deteriorationj41

The judgment furthermore entails that where a quality element is flot observed at a single

monitoring point in a body of groundwater,

must be found that there is a deterioration of the

chemical status of that body of water, for the purposes of Article 4(1)(b)(i) of the WFDJM

The provisions of the WFD are implemented in the Danish Act an Water Planning (lov om

vandplanlægning).fj As provided for in this act, section 8(3) of the Executive Order an Programmes

of Measures (indsatsbekendtgørelsen) stipulates that the authority can only make a decision

involving a direct ar indirect impact on a body of surface water for which the environmental

objective is flot met if the decision does flot lead to a deterioration of the defined environmental

objective, including by the measures defined under the programme of measures.

Pursuant to section 8 of the Danish Act on Water Planning, the minister is autharised to determine

specific rules for environmental objectives, inciuding what is to be understood by good surtace water

status, good ecological potential for artiticial and heavily moditied bodies ot water and good surface

water chemical status with a view to the implementation of European Union directives and decisions

concerning the protection ot surtace water and groundwater. The Executive Order on Establishment

of Environmental Objectives for Inland Surtace Water, Transitional Waters, Coastal Waters and

Grou ndwater (bekendtgørelse om fostlæggelse of miljømålfor vandløb, søer, avergongsvonde,

kystvond og grundvond) has been issued in pursuance at this provisionj2j Section 3(1), no. 1, at the

executive order states that the establishment at environmental objectives tor the individual bodies

at surface water must inciude the normative definitians at quality ciasses tor ecological status and

ecalagical potential set aut in Annex 1.

Sectian 2 at Annex i to the executive order sets aut detinitions at high, good and moderate

ecalagical status in rivers in relation to physico-chemical quality elements. It is stated here that in

relation to specitic non-synthetic pallutants, gaad status is when the cancentratians da not exceed

the enviranmental quality standards established in Annex 2, part B, sections i and 2jffl Sectian 1,

part B at Annex 2 states that the general quality standard121 tor capper in inland water badies is i

pg/l added to the natural backgraund cancentratian. It alsa states that the maximum cancentratian

far capper in inland water bodies is 2 jig/l added to the natural background concentration.

Sectian 8(6) at the Executive Order an Pragrammes at Measures states that the assessment at

whether a decision can be made in pursuance at subsectians (2)-(4) must include the narmative

detinitians af quality classes tor ecalagical status and ecolagical potential tor badies at surtace water,

ct. Annex i to the Executive Drder an Establishment at Enviranmental Objectives tor Inland Surtace

Waters, Transitianal Waters, Caastal Waters and Graundwater, ct. Annex 2, part B at the same

executive arder.

The 2D15-2D21 river basin management plan tar River Basin District Jutland and Funen states the

tallawing abaut enviranmentally hazardaus substances:jjj

“The chemical and ecalagical status at a body at water is gaad in respect at environmentally

hazardaus substances when the measured cancentratians at substances da nat exceed the

established enviranmental quality standards. This means that the enviranmental objective tora body

at water is met when ali measured substances are in campliance with the enviranmental quality

standards. Canversely, a body at water will nat have achieved the enviranmental objective if just ane

at the measured enviranmentally hazardaus substances exceeds an established enviranmental

quality standard, ct. the WFD.”

In addition, the Danish Enviranmental Pratectian Agency’s guidance an the Executive Order an

Pragrammes at Measures states the tallawing about measures targeted against enviranmentally

hazardaus substances:(jj

“The assessment at the chemical status at body at water is based an cancentratians at so-cailed

priarity substances identitied by the EU. Priarity substances are substances that present a signiticant

risk ta the aquatic enviranment at EU level. The assessment at the ecalagical status at a bady at

water is based an the substances that are manitared because they are assessed to be discharged in

signiticant quantities at natianal level

In the assessment of ecological and chemical status of environmentally hazardous substances, the

measured concentrations will be compared with environmental quality standards. An environmental

quality standard is the concentration of a particular substance in water, sediment or biota (mussels

and fish) that must not be exceeded in order to protect human health and the environment. The

applied environmental quality standards are set out in table 5 (chemical status) and tables 3 and 4

(ecological status) of Annex 2 to the Executive Order on Establishment of Environmental Objectives

for Inland Surface Waters, Transitional Waters, Coastal Waters and Groundwater

For the bodies of water in which one or more substances exceed the established environmental

quality standards, the ecological and/or chemical status is assessed as not good. These are the bodies

of water in which measures must be implemented.”

The guidance also states the following about the framework for the administration by authorities of

legislation in relation to environmentally hazardous substances when the environmental objective

has not been achieved:f

“Whether a decision can be made for these bodies of water that involves introduction of

environmentally hazardous substances depends on a specific assessment of the significance of the

impact on the status of the body of water. If the impact is assessed to be significant, a permit cannot

be issued for the impact. If the impact is assessed to be insignificant, a permit may generally be

issued for the impact. The specific assessment should include an assessment of the quantity and

concentration of the substance related to the other introductions (cumulation), including from point

sources, diffuse impact and atmospheric deposition. An assessment is made of what happens to the

substance in the body of water, including its transport (possibly to other bodies of water) and form

(dissolution, binding, chemical reaction, sedimentation, accumulation, immobilisation,

degradation/decomposition, etc.). It may include information about the development over time of

the introduction and/or presence of the substance in the body of water, e.g. a declining trend in

concentrations due to measures/regulation, an assessment of whether the impact is balanced so that

the impact does not deteriorate the status or prevent the achievement of the environmental

objective for the body of water within the established timeframe. This information helps inform the

assessment of whether the impact gives rise to an increase of the concentration in water, sediment

or biota, including whether it might, in principle, be registered by measurements. It is presupposed

that the activity resulting in an impact is based on the use of best available techniques. Also note that

the assessment of achievement of the objectives for environmentally hazardous substances is based

on individual substances subject to environmental quality standards, which means that the specific

assessment of the impact is made at substance level.”

Similar provisions appear from the draft guidance on the Executive Order on Programmes of

Measures from December 2D21j4j

In addition, question 43 in the Danish Environmental Protection Agency’s FAQ about discharge of

certain pollutants to the aquatic environment states that the discharge may not result in an increase

of the already existing concentration at the boundary of the mixing zone of more than 5% of the

value of the general quality standard for the substance for water when the environmental quality

standard for the substance is already exceeded in the aquatic environmentjÇ

In relation to achieving the objectives set out in the river basin management plan, the Environment

and Food Board of Appeal establishes that the objective has not yet been achieved for the Bygholm

upstream outlet from Hatting Bæk, amang other things because the status for environmentally

hazardous substances is not good. The Board turthermore establishes that the status ot not good in

relation to environmentally hazardous substances is due to an exceedance of the copper content ot

0.237 ag/l in relation to the general quality standard at 1.48 pgJl, corresponding to an exceedance ot

appraximately 16% and an exceedance of 0.32 ig/l in relation to the requirement ot a maximum

concentration of 2.48 ig/l, corresponding to an exceedance of approximately 13%.

Concerning the ecolagical status ot the Bygholm

downstream outlet from Hatting Bæk, the

Environment and Food Board ot Appeal establishes that the objective for the ecalogical status has

been achieved. Particularly in relation to environmentally hazardous substances, the Board

furthermore establishes that the status is unknown.

It is the opinion of the Environment and Food Board of Appeal that the case law ot the Court ot

Justice cancerning the concept of deteriaratiari af the status in the Land Nordrhein-Westtalen

judgment, relating to additional introduction at a pollutant into groundwater that already exceeds

the environmental quality standard tor the substance concerned is alsa applicable to surtace water.

In this cannection, the Board has attached impartance to the statement by the CJEU that the concept

at deteriaratian af the status must be understood similarly far surtace water and

graundwater,Çffl and that the CJEIJ in the case reters to case law for deteriaratian af the status in

the Weser judgment concerning surface water.jZ1 In additian, the Board is nat ot the apinian that

the understanding at the concept at deteriaratian af the status is attected by whether it is a

substance that relates to the ecalogical status or to the chemical status, as it is nat tound that the

CJEU makes ar atherwise indicates such distinction. The Baard makes reference to, e.g., the

statement by the CJEU in the Land Nardrhein-Westtalen judgment that

“[...)

»deteriaratian at the

status» at badies at water must be interpreted by reterence ta bath a quality element and a

substance”.jffl

A majarity af the Enviranment and Food Baard at Appeal believes that based an natably the Weser

and Land Nardrhein-Westtalen judgments, deteriaratian af the status in relation ta pallutants must

be understaad as meaning that when the enviranmental quality standard tora pollutant has already

been exceeded and the body at water is cansequently in the lawest passible class, any subsequent

increase in the cancentratian at the pallutant must be cansidered a deteriaratian at the status at the

body at water in cantraventian atArticle 4(1) at the WFD. The majarity nates that a similar

understanding must be applied to sectian 8(3) at the Executive Order an Pragrammes at Measures,

as the executive arder is the Danish implementatian at the abligatian to prevent deteriaratian at the

status at surtace water and graundwater.

Against this backgraund, a majarity at the Enviranment and Faod Baard at Appeal tinds that the

sectian 25 permit is nat in campliance with sectian 8(3) at the Executive Order an Programmes at

Measures as the praject will result in a deteriaratian at the ecalagical status at Bygholm

in the

tarm at a deteriaratian at the quality element tor enviranmentally hazardous substances. This means

that the sectian 25 permit suffers from a material legal deticiency.

The majarity has attached impartance ta the tact that the enviranmental quality standard tor capper

is exceeded, that the status tor enviranmentally hazardaus substances is cansequently nat gaad,

which is the lawest passible status, and that accarding ta an enviranmental impact assessment, the

praject will result

fri

additianal discharge at capper ta the watercourse by up to 0.034 pg/l,

carrespanding ta appraximately 2% at the general quality standard tor copper in a medium situation.

_____________

In this connection, the majority notes that the case does flot provide a basis for disregarding the

assessment by the Municipality of Horsens that the project will result in additional introduction of

copper

into

the watercourse, which is why the majority has relied on this fact in the case.

Furthermore, the majority has attached importance to the fact that it follows from CJEU case law

that also temporary and locally delimited deteriorations of the status of a body of surface water is in

contravention of the obligation to prevent deterioration of the status and that the threshold beyond

which breach of the obligation to prevent deterioration of the status of a body of water is found

must be as low as possiblej

Ifl addition, the majority has attached importance to the fact that the added amount of copper

introduced is flot decisive when the quality standard has already been exceeded, as any additional

introduction will result in deterioration of the status when the status is the lowest possible. Further,

the majority has attached importance to the fact that the impact of the additional introduction of

copper on the other ecological parameters is nat per se decisive for deterioration of the status, as

any exceedance of the quality standard must in itself be considered deterioration of the status of the

watercourse, cf. the CJEU judgment in Land Nordrhein-Westfalen.jQj The fact that the

environmental impact report assesses that the additional copper introduced will flot be decisive for

achieving the quality element objectives for fish, small creatures and aquatic plants cannot result in

allowing the additional introduction as the additional introduction of copper results in an

independent deterioration in relation to the quality element for environmentatly hazardous

substances.

Asa consequence of the above, the majority also notes that the majority is of the opinion that it is

flot in compliance with the obligation to prevent the deterioration of the status of surface water to

allow additional introduction of copper foltowing a specific evaluation of materiality as stated in the

Environmental Protection Agency’s guidance on the Executive Order on Programmes of Measures

when the quality standard has atready been exceeded. The guidance is flot in compliance with CJEU

case law to the effect that any subsequent increase in the concentration of a pollutant constitutes a

deterioration when the quality standard has already been exceeded, which is why the case cannot

attach importance to the fact that the Municipality of Horsens has followed the guidance.Jjj The

Board establishes that the environmental impact report also refers to the Danish Environmental

Protection Agency’s FAQ question 43, which states that an additional discharge may flot result in an

increase of the already existing concentration at the boundary of the mixing zone of more than 5%,

but that a mixing zone has flot been identified in the case concerned. The Board is consequently of

the opinion that FAQ question 43 is flot relevant in the present case. The Board notes that with this

decision, the Board has flot decided on the application of the Danish Environmental Protection

Agency’s FAQ question 43 in relation to decisions on identification of mixing zones.

The minority (Jens Vibjerg and Kristian Pihl Lorentzen) finds that the section 25 permit is in

compliance with section 8(3) of the Executive Order on Programmes of Measures.

The minority has attached importance to the fact that the additional introduction of copper into

Bygholm

is so small that it can be defined as non-significant iri accordance with the threshold for

additional introduction of xenobiotic substances of 5% as set out in the Danish Environmental

Protection Agency’s FAO. question 43, and that the permit may be granted under this exemption.

——____________________

Kommenterede [KV1I:

The part

of the ruling that is at

the center of our questlons

Ad 3) Impaet on

Natura

2000

area

This follows from Sectinn

20,

snbsection of the Envirnnmentai Assessment Act. 4, no.

that the

envirnnmental impact report must demonstrate, deseribe and assesa the prnject’s significant direct

and indirect effects on e.g. the binlngical diversity with particnlar emphaaia nn apeciea and hahitats

protected under the 1-tabitats Directive.

3.2.4

The authnrity mnst alsn obsene Natnra

the habitat order.

2000

protection when issning the §

permit itseif, cf. § 6 of

The EU Cnnrt nfJuatice interprets the provision in the Habitats Directive, Articie 6, snbsectinn 3, sn

that the authority mnst make an assessment of whether it can be rnled mit that a plan nr prnject in

itself nr in cnnnectinn with other plans and prnjects may significantly affect the aehievement of

favnrable cnnsenatinn status for the designated area, including whether the cnnservatinn status nf the

speciea and/nr nature types that the area has been designated to prntect will be significantly affected

(significance assessment).

If such an impaet eannnt be rnled nnt nn the hasis of nbjeetive criteria, if the prnject is tn be prnmnted,

a mnre detailed assessment (cnnseqnence assessment) must he carried nut. This assessment mnst

incinde ali aspects of the prnject that may affect the site in qnestinn, and the assessment must be

carried nut nn the basis nf the hest scientific knnwiedge in the fieid.[72]

The cnmpetent natinnal authnrities nnly anthnrize an activity nn the prntected site nn the cnnditinn

that they have nbtained certainty that the activity will nnt have harmful effects nn the integrity nf the

site in qnestinn. This is the case when, frnm a scientific point ofview, it can be determined heynnd

reasnnabie dnnbt that there are nn snch effects.[73]

In snch an assessment, the precantinnary principle apphes.[74]

The integrity nfa Natnra 2nnn site includes its basic characteristics and ecnlngical fnnctinns. It can be

defined as a cnherent sum nf the area’s ecnlngicai structnre, fnnctinn and the ecnlngical prncesses

acrnss the area, which enabie it tn maintain the habitat types, the cnmbinatinn nf habitat types and/nr

species pnpnlatinns fnr which the area has been designated.[751

As far as species are cnncerned, the cnnservation statns nfa species is defined in Articie i(j) nf the

Direetive as the result nf ali the cnnditinns that affect the species and which may, in the long term,

affect the distrihntinn and abnndance nf its pnpniatinns within the Member States’ area in Eurnpe

where the EU Treaty applies.

The Environment and Fond Cnmplaints Bnard nntes that in the delineation nf what cnnstitutes

harmful effects on the integrity nf the site accnrding tn the habitat directive’s articie 6, paragraph 3, the

criteria and methnds that are expressly stated in the directive’s article 6, snbsectinn shonid aisn be

included.

Accnrding tn the Habitats Directive, Article 6, snbsectinn

Member States shail take

apprnpriate measnres to avnid deterinratinn nf the habitats and habitats nf the species in the special

areas nf cnnsenatinn, as well as disturbance of the species fnr which the areas are designated, insofar

as these distnrbances have significant cnnsequences fnr the nbjectives nfthis Directive.

The EU Cnnrt of Justice has alsn determined that the impact assessment must cnntain cnmplete,

precise and final flndings and cnnclusinns abnnt the impact nfa prnject on a Natura anno area with

regard to ali the hsbitats and species for which the area has been designated. The impsct assessment

mnst therefnre partly identify and beate ali the habitats and species for which an area is protected, and

parti) the assessment must aisn incinde infnrmatinn abnnt species and habitats ontside the prntected

location. Sioce it most be clear from the assessment why the proteeted habitats and speeies are not

affected, jo certajo caaes it may be sofficieot to establish that ooiy certajo protected habitats and

species jo the part of the protected area that are affected by the projeet, are affeeted and that the other

protected habitats and apecies no the ajte are oot affected. However, thjs presupposes that there is

aufficiently precise joformatjoo about where protected species and oature types are located jo the

jndjvjdual Natura

2000

areas, aa well as the ioteractioo with other species jo and ciose to the Natora

2000

area.[76]

Wjth regard to the geographjcal exteot of the protectjoo, the Coort of Juatjce of the EU has determjoed

that the habjtat djrectjve’s reqoiremeots for sigoificance and impaet assessmeot also apply to a plan or

project located ootajde the affected Natura

2000

area, wheo these can sigoificaotly affect apecies

the basis of designatioo. The aame applies wheo the species are ootside the Natura

2000

area.[fl]

The Eoviroomeotal and Food Complajots Board fods that, jo the apecific case, Horaeos Mooicipality

haa had a soffjcieot baajs to he able to assess whether the project will cauae a sigoifieaot impact

calcareous meadows, brook lampreys, vertigo geyeri whorl soajls, oarrow-mouthed whorl soajls,

Deamouljo’s whorl aoajls aod otters oo the haajs of desigoatioo for the oearhy habjtat area 11236 The

eommjttee alan fjods that there ja oo basis for overridjog the mooicjpaljty’s assessmeot that the project

will oot affect the deajgnatioo hasjs for the Natura

2000

area.

Semj-oatural dci’ grasslaod aod scroblaod facjes

caleareous subatratea

The Eoviroomeot and Food Complaiots Board haa, in relatjoo to semj-oatural dry grasslaod and

scrublaod facies

calcareoua sobstrates, emphasized oo the basis of desigoatioo that the oearest area

jo the Natura

2000

area with grasslaod

calcareous sobatrates js approx.

300

m from the road’s

roote, and that the grasslaod

calcareous sohatrates is thereby oot directly physically affected by the

project.

The Enviroomeotal and Food Complaiots Board has also emphasized that specific calculatioos for

oitrogeo depositjon have been made jo the jmpact assessment, aod that based on the modeled

backgrouod bad in the area and the calculated depositiots at the time of the project’s realizatioo, it has

been assessed that the depositioo hased oo the excessive structural and specjes status does oot pose a

threat to the cooservatioo statos of the grasslaod.

Vertigo geyerj whorl soail, oarrow-monthed whorl soail aod Desmoulin’s whorl snail

The Environmeot and Food Complaiots Board has emphasized, in relation to the vertigo geyeri whorl

soail, the crooked water soail and the swamp water soail, that the three species are registered jo

association with spring water and sedge jo the central aod western part of the Natura

2000

area more

than

900

m from the project area, and that there are no oatural types have been registered which will

be able to support the preseoce of the vertigo geyeri whorl snail or the narrow-mouthed whorl snail

oear the project area.

The Envirooment and Food Complaints Board has also emphasized that Horsens Municipality has

stated doring the appeal that the area with poteotial habitats for soails ontside habitat area H236 lies

approx.

240

m from the potential habjtat of the Desmouljn’s whorl soajl withio the habitat area. The

areas hetween the poteotial habitat and the habitat withio the Natura

2000

area coosist partly of a

road and partly of dry grasslaod, which does not coostitute a suitahle hahitat for species ofsoails. b

this coooection, the board has also emphasized that snails do oot migrate hetween hahitats, as they are

ooo-mobile species.

The Environmental and Fond Cnmplaints Bnard has, in relation to what was stated in the cnmplaint

regarding the finding nf potentially suitahie habitats for snails in the road

rnnte

ontside the habitat

area, emphasized that the snnrce snnrce in qnestinn is isniated from the habitat area, and that a

pnssible pnpnlatinn will therefnre nnt be cnvered of the possible pnpnlatinns nf snails in the habitat

area and therefnre not he covered by habitat prntectinn.

Brnnk lansnrey

The Environment and Fnnd Cnmplaints Bnard has eniphasized, in relation to the lamprey, that the

prnject in the cnnstrnctinn phase is nnt assessed tn be sble to affect a pnssible pnpnlation nf lamprey in

the Bygholm

watercnnrse

system, as nn physical changes are made to the watercnnrse. lt alsn

appears that the stretch nf watercnnrse around the prnject area can he a hreeding grnnnd and

migratinn site fnr the species, but that the stretch ofwatercnnrse at the prnject area is not assessed tn

cnnstitute a likely breeding area, as the bnttnm is mainly sandy and as there is cnnsiderable sand

migration.

The Envirnnmental and Fond Cnmplaints Bnard has alan, in relation to the impact nn the bronk

lamprey in cnnnectinn with the tempnrary grnundwater lnwering in the cnnstruction phase,

emphasized that the grnundwater is reinjected and thus nnt discharged intn the stream, and that the

grnnndwater lnwering therefnre does nnt canse changes in the stream, inchiding fnr the brnnk

lamprey.

The Environmental and Fnnd Cnmplaints Bnard has alan emphasized that in the impact assesament,

calcnlatinns have been made nf the discharge nf rainwater dnring the nperatinnal phase, and that nn

this basis it has been assessed that there ill be nn impact on the river lamp in relatinn tn llnctuatinns

in nxygen cnncentratinn, salt inipact and envirnnmentallv harmfnl suhatances.

Otter

ln relation to ottera, the Envirnnmental and Fond Cnmplainta Bnard

has

eniphasized the infnrmatinn

that the areas immediately east nf the Natnra annn area are nnt significant asa breeding area for

ntters, and that dnring the cnnstrnctinn phase there will be gnod nppnrtnnities for hiding bnth

upatream and dnwnstream nf the prnject area

In relatinn tn the cnmplaint that the tempnraiy bridge during the cnnstrnctinn phase nver Ftatting Bæk

xsill disturb the ntter’a mnvement pnssibilities, the bnard has emphaaized that any impaet during the

cnnstntctinn phase

will

be nfa tenipnrary nature and that the cnnstrnctinn activities

will

take place

within normal wnrking hnurs during the day and nnt during the night hnnrs, when ntters actively

forage in the streama.

The Envirnnmental and Fnnd Cnmplaints Bnard has alan emphasized that the mad cnnstrnctinn

dnring the nperatinnal phase does nnt canse a barrier effect for otters, as the cnnstrnctinn ensnres

passage cnnditinns for ntters between the Natnra annn area and any reating areas dnwnstream nf the

prnject area in accnrdance with the management plan for otters.

Grnnndwater lnwering

In relation tn the impact frnm grnundwater lnwering, the Envirnnmental and Fond Cnmplaints Bnard

has emphasized that it appears from the mndel calcnlatinn for the distribntinn nf the lnwering funnels

during grnnndwater lowering that the lnwering fnnnels fnr the fnnr middle snppnrt points dn nnt reach

intn habitat area H236, and that nn that basis it has been asaessed, that the nature types and speciea

dependent nn the stream

will

nnt be negatively affected by the lnwering nf the grnundwater.

In relation to a possible impact from the gronndwater lowering ifl cnmniation with other projects, the

Environment and Food Complainta Board has emphaaized the calenlation of the lowering fiinnels and

the diatance to the bnsiness area.

The Environmental and Food Complaiots Board fnrther notea that, jo the board’a opinion, it cannot he

required that an environmental impact report relate to the cumniative effect with ali other projects in

the area. The assessment of the cumulative effect mnst only relate to the other projecta in the area that

muat be considered relevant in relation to a aignificant increase in the environmental impacta

compared to the desired project.

Ad 4) Provision of the irnpact assessmcnt

This appears from aection 6, anbsection of the hahitat order. land par.

that

the authority assesses

that a project may significantly affect a Natnra

2000

area, a detailed impact assesament of the project’s

effeets on the Natura

2000

area must he carried out, taking into account the conaervation objective for

the area in question.

3.2.5

It also appears from aection 6, aubsection of the executive order. 4, that assessments according to

subsection

1-3

must appear in the decision.

It is therefore assumed jo the regulations that an assessment mnst firat he made of whether the project

can significantly affect a habitat area (significance assesament). If thia is the case, an asseasment of the

impact on the area must be carried ont (consequence assessment), and this assessment must be

incinded jo the decision.

appears from the habitat guidance that

is the authority’s responaibility that a case is decided

sufficiently informed basis, and that the authority mnst thus ensure that sufficient information is

provided to determine whether a plan or project damages a Natura

2000

area’s integrity. According to

the practice of the European Conrt of Justice, it is the authority that is obliged to ensure that an

asseasment has been made on a sufficientiy informed hasis.78] tt is further stated in the babitat

guidance that if an authority does not have access to the information necessary for the processing of a

specific case, the applicant may be ordered to obtain information relevant to processing the

application. Reference is made to the fact that, among other things, there is authority jo the

Environmental Asseasment Act §

24,

snbsection

to order the applicant to provide additional

information.

The Environmental and Food Complaints Board fods that Horsens Municipality’s assessment of the

project’s impacts on the nearby Natnra

2000

area meets the requirements for an impact assessment

according to the habitat execntive order, and that, based no the information in the case, there is no

basis for establishing that the impact assessment was not prepared impartially.

The Environment and Food Complainta Bnard has emphasized that independent cnmment rnnnds

have been carried ont in Horsens Mnnicipality on the content of the habitat impact assessment in

question with the aim of ensuring that the habitat directive’s requirements for an appropriate

assesament have been met before the municipality announced the relevant permits for the project.

The Environment and Fond Cnmplaints Bnard has also emphasized that

appears from the §

permit that Horsens Municipality, Natnre and Environment, has received assistance from an external

conaniting company to review the developer’s assessments of the impact on the Natura

2000

area and

Annex

IV-

apecies.

The Environmental and Fond Cnmplaints Unard has also placed emphasis nn the fact that no

information has emerged with the cnmplaints that prnvides a basis for assnming that the cnntent of

the impact assessment nr the assessments made were insnfficient nr incorrect.

3.2.6

Ad 5) tmpact on Annex ty speeies (bats, otters, newts and toads)

This fnllnws from Section

2n,

snbsection nf the Environmental Assessment Act. 4,

00. 2,

that the

environmental impact repnrt mnst demnnstrate, descrihe and assess the prnject’s significant direct

and indirect effects on e.g. the biological diversity with particnlar emphasis nn species and habitats

prntected nnder the Habitats Directive.

The anthnrity mnst make snre, when issning the §

permit itself, that the prnject will not damage nr

destrny breeding nr ronsting areas in the natnral range nf Annex IV species, cf. § sn nf the habitat

nrder.

The EU Cnmmissinn has pnblished gnidance nn the prntectinn nf Annex IV species.[79] The provision

in the Habitats Directive, Articie

12,

snbsectinn

letter d, accnrding to the gnidance, mnst be

understnnd as an objective that the ecnlogical functinn nf breeding and resting areas is preserved.

Breeding areas are defined in the gnidance as the areas to be nsed for mating and birth, and alsn cover

the area near the nest nr birth site if the nffspring are dependent nn snch areas. Resting areas are

defined as the areas used hy an animal nr a grnnp nf animals when the) are nnt active. Rnnsting areas

alsn incinde strnctnres that animals establish as ronsting areas, e.g. nests, bnrrnws nr hiding

places.[8n)

Likewise, resting areas are defined in the Danish Envirnnmental Prntectinn Agency’s habitat gnidance

as areas that are impnrtant tn ensure the survival nf individnal animals nr pnpnlatinns when they are

at rest. [8i] Resting areas are thns areas where the species stays dnring nr ontside the breeding seasnn

tn rest, sleep nr hibernate (hibernatinn) and in hiding in larger cnncentratinns (flncka) and tn fulfill

impnrtant life fnnctinns (snnbathing nr the like). Breeding and resting areas have in cnmmnn that they

are nsed regniarly by the species.[821

A breeding nr rnnsting area in the sense nf the Habitats Directive and the Habitats Order means a

cnllectinn (“netwnrk”) nf Incalities where a pnpnlatinn nf a speciel breeds nr rnnsts. The impnrtance nf

the individnal Incatinna in the netwnrk may depend nn the pnpulatinn’s density and apread pntential.

When assessing whether a breeding nr ronsting area is damaged nr deatrnyed, it is decisive whether

the ecnlngical fnnctinnality nf the netwnrk nf aites can he maintained at at least the same level aa

befnre.[83]

It is the respnnsibility of the cnmpetent authnrity, in accnrdance with the general administrative law

investigatinn principle, tn ensnre that snificient infnrmatinn is prnvided tn he able tn assess whether

breeding nr rnnsting areaa fnr Annex IV speciel are damaged nr destrnyed. No clear criteria

can he

established for the extent and

nature nf

the

informatinn

that is reqnired. It depends nn the apecific

sitnation. There can e.g. in the caae nf nlder information, there may be a need to assess whether the

informatinn needs to he updated to determine whether the speciel actnally continnes to nccnr in the

affected areal. Preciae criteria cannnt be set for when information is tnn old, as the speciea are very

different, jnst as the natural develnpment (eg. overgrnwth) nf an area can have an impact on whether a

speciel is present. There may be a need for

further inveatigatinna if decisions are to be made in parts nf

the country where

the species are

knnwn

to nccur

and where there is a likelihond that pnssible

breeding or roosting areal may be affected. Any investigationa must

be carried

mit in a targeted

manner using suitable methods, and it must be ensured that the investigations take place at the times

of the year when the speciel in queation can be expected to utilize a given area. The surveys

must

therefore take place at times when there will be a high probability of detecting the species if it oceurs in

the area. [84]

tn relation to activities that may affect hreeding or reating areas, according to the EU Commission’a

guidance, a distinction must be made between activities that can he accommodated within Article

12 of

the Habitats Directive and activities that require a derogation puranant to Article ‘6 of the Directive.

Where a derogation under Article s6, compensatory measures

will

aim to compensate for specific

negative effects on a species and thus imply that there is or has been damage or destruction of

breeding or roosting areas. This is not the case for measures to ensure ecologieal functionality, which

ensure that the ecological fnnctionality of the breeding or roosting area remains completely intact

(quantitatively and qualitatively) when the

activity

has taken place (remedial measures).[85]

The European Court

Justice has stated in the Grand Hamster II judgment,

with

reference to the EU

Commission’s guidance, that according to the habitat directive’s article

12,

paragraph

letter d, in

particular, it mnst be ensured that the breeding and roosting areas of a protected animal species are

not damaged or destroyed by human aetivities, so that these areas continue to offer the conditions

necessary for this animal speciel to roost or breed within this area snccess. In such an assessment,

account must be taken of the ecological requirements that apply to each of the affected animal species

to which the individual in question belongs, as well as to the situation at individual level for this

animal species that uses the breeding or resting area in question.[86]

The Environmental and Food Complaints Board is of the opinion that the assessment of Annex

apecies at the time of the decision does not necessarily have to include a final assessment of whether a

given location actually sen’es as a breeding or resting area for Annex IV species, if, on the basis of a

precautionary principle for the time being, it is assumed that this is the case.

If, on the basis of a precautionary principle, a given locality

can

be assumed to serve as a breeding or

roosting area for an Annex IV species, it must then be assessed how the projeet

will

affect the locality

immediately. If the immediate impaet is harmful, it most be assesaed whether the site’s ongoing

ecologieal funetionality as a breeding or resting area

can

be maintained with the help of mitigation

measures. If the preventive measures cannot be expected with a high degree of certainty to w’ork to a

sufficient extent, the project mnst be adapted so that the immediate damage to the site is avoided.

It appears from the Danish Environmental Protection Agency’s habitat guidance that mitigation

measures are suitable for speciel that are quick to colonize

new

locations within a network oflocations

that form a combined area for a stock, and where

new

snitable habitats can be created over a aborter

period of time.

It also appears from the Danish Environmental Protection Agency’s habitat guidelines that, where

applicable, there must be a high degree of

certainty

that mitigation measures will work to a aufficient

extent. The greater the uncertainty in the knowledge of the apecific occurrence of the speciel in an

area, the greater the need for preventive measures in the form of securing possible new breeding or

roosting areas. Where mitigation measures are required, according to the Danish Environmental

Protection Agency’s habitat guidelines, clear terms must be laid

down

in the specific cases. The term

must be drafted in auch a way that it

can

be enforced.[87]

Bat

The Enironmental and Food Complaints Unard initially states that, in the investigations carried out in

connection w’ith the preparation of the habitat impact assessment a breeding and roosting area for

pipistrelle and pygmy bats, and poaaibly alao for brown and troll bata, haa been fonnd approx.

300

weat of tbe project area. The board notes that, in addition, it baa not been mapped in detail whether

tbere are breeding nr resting areaa in the wooded area approx. 8o m eaat of the connecting road, and

that posaible breeding and rooating areaa have been treated aa if they were actually breeding and

rooating areas.

It appeara from the environmental impact report that, in connection with the eatabliahment of the

landscape bridge, sheet pile walls for the conatntction pits aronnd the fonndationa for the bridge piera

mnat be framed. The noise from the framing of aheet pilea will uaually be experienced as particolarly

annoying, as it is impolse noise. Noise calcolations have been made in relation to neighboring hnmes,

and nn that basis a simple noise calcolation of the noise propagation has been made, which shows that

noise levels of over

dB(A) can be expected mnre than

300-400

m from the impact site. It appears

that the framing work is estimated to last

days, and that the work is only carried

ont

dnring daytime

hours on weekdays. It has also been assessed that there is no need for significant mitigatinn measures

in connection with constroction noise.

The Environmental and Fond Cnmplaints Bnard finds that Horsens Mnnicipality did not have a

snfflcient basis for assessing that the project will not affect the ecological fonctiooality of breeding and

roosting areas for the nine registered bat species in the area.

The Environmental and Food Complaints Board has emphasized that no assessment has been made of

whether the noise doring the constrnction phase from the framing ofsheet piles conld affect breeding

and roosting areas for bats. In this connection, the board notes that in the case Horsens Monicipality

has chosen to treat the areas east of the connecting road as if they were actoally breeding and resting

areas, bnt that no assessment has been made of whether the noise coold affect the nearby breeding and

resting areas fonctionality, especially doring the breeding season. In addition to this, the committee

notes that it appears that noise from hitting is impulse noise, which can be more annoying than other

noise. The hoard refers to the fact that it appears from the Management Plan for bats on secoring

soitable habitats that distorbances, soch as severe noise impact that coold harm the local popnlation of

bats most be avoided.[88]

A majority of the Environment and Fond Complaints Board also finds that Horsens Monicipality has

had sufficient groonds to assess that the other parts of the project will not affect the ecological

fonctionality of breeding and roosting areas for the nine registered hat species in the area.

In the assessment, the majority emphasized that, in accordance with the goidelines in the Road

Directorate’s guidance on bats and major roads, bat surveys were carried

ont

during the stated periods,

and that both daytime inspections, surveys with aotomatic detectors and reviews of the area with

handheld hat detector. On this basis, it has been determined where in the area there are breeding and

roosting areas for bats, nr potential breeding and roosting areas, jnst as significant gnide lines and

foraging areas of importance for the ecological functionality of the breeding and roosting areas have

been determined.

The majority has alan emphasized that, in connection with the decision, it has been assessed that most

of the registered hat species will use the primary control line under the landscape bridge, and that the

smaller stroctore-bound species will fly at such a great distance from the control plantings and screens

that they planned heights of bridge guarding and gnide planting will redoce collision Hak for bats.

In addition, the majority has emphasized that the road’s crossing of Bygholm Ådal and Bygholm

Å,

which are respectively assessed to be an important foraging area and an important control line for bats

in the area, be hoilt asa landscape bridge of the type AsL (is’et) in accordance with the Road

Directorate’s road rulea about fauna paaaages, and that the landacape bridge onder each of the three

middle spans has a clearance of at least 7 mand a width ofapprox.

m, whieh is in accordance with

the minimum dimensions specified in the gnide for the seleeted type of Iandscape bridge. In this

eonnection, the majority has emphasized that landacape bridgea of the type AtL (wet) in the

Norwegian Road Directorate’s road rides on fauna passages are indieated as a suitable prevention

measure for species of bats, including water bats, pond bats, pygmybats, pipiatrelle bats, troll hats and

long-eared bats, and that high landscape bridges with large elearanee under the hridge, whieh in this

apecific case are alao suitable for southern hata. Furthermore, the majority has emphasized that the

risk of collision at road erossings for brown bats and long-eared bats is eonsidered low according to the

Road Direetorate’s road rules.

b addition, the majority has emphasized that sereens are set tip on the sides of the bridge and gnide

planting is established in aeeordanee with the Roads Directorate’s road mie on fauna passages in order

to minimize the risk of eollision for bats that forage at the height of the bridge above the river valley,

and lead low-flying hat species on the edge of the river valley down in the river valle)-, where there is a

passage under the bridge. In the beginning, the gnide planting is also snpplemented in aecordanee

with the Road Directorate’s road mie on fanna passages with a flne-mesh wire fence with a minimum

height of

2.5

m, so that bats eannot pass through the fenee.

Overall, in relation to the preventive measures deseribed, the majority has emphasized that conditions

have been laid down in the seetion

permit in aeeordanee with this.

In relation to the disagreement about the distance to the potential breeding and roosting area for hals

east of the connecting road, the majority has emphasized that the actnal distance does not deviate

signifleantly from the previonsly stated distance.

Finally, the majority has emphasized that any impact from light and visual disturbances from traffic

during the operational phase is limited by the shielding on the sides of the bridge, and that no road

lighting is established on the stretch, just as the planting abong the road and the bridge shielding on

the road bridge itself will reduce a potential impact of bats in the operating phase significantly.

Particnlarly in relation to a potential noise impact, the majority has emphasized that it is a country

road and that the environmental impact report states that the noise in the area will not he significantly

increased.

The minority (Pelle Andersen-l-tarrild) finds that, in relation to noise during the operational phase,

Horsens Municipality has not had a sufficient basis for assessing that the project will not affeet the

ecobogical functionality of hreeding and roosting areas for the nine registered hat species in the area.

The minority has emphasized that Horsens Mnnicipality has not taken a position on the hahitat

requirements of the individnal hat species or differentiated between the species’ auditory sensitivity,

and that there is not a sufficient basis to conclude that there is no impact during the operational phase.

Other Annex IV snecies

The Environmental and Food Complaints Board finds that Horsens Municipality has had a suffieient

basis for assessing that the project will not affect the ecologicsl functionality of breeding and resting

areas for large water salamanders, pointed frogs and otters. The committee also finds no basis for

overriding the municipality’s professional assessment that breeding and resting areas for the species

will not be affected by the plan.

In relation to the pointed frog and large newt, the Environmental and Food complaints Board has

emphasized that, in cunnectiun with the environmental impact report, a search for tadpoles in soitable

“

—

habitats has been carried out in acenrdance with the technical instnictinns for monitoring amphibians

and incioded existing data on the occurrence of the speciea in the area.

The Environment and Food Complaints Board haa also emphasized that an amphibian fence be

established along both aides of the road on the north side of Bygholm

Å,

and that it has been assessed

that the planned establishment of the prevention measure will not impair the ecological functionality

of breeding and resting areas for large newt and pointed ftog. In this eonneetion, the committee has

emphasized that any individnals of the speeies will be led under the road bridge.

tn relation to otters, the Environmental and Food Complaints Board initially notes that the section

permit, the environmental impaet report or the habitat impact assessment do not immediately appear

to have assessed whether the plan isill affeet the ecological functionality of breeding and resting areas

for otters. However, the hoard understands the assessment in the habitat impact assessment to mean

that, in addition to an assessment of otters on the basis of designation for habitat area H236, the

assessment also eontains an assessment of the project’s impact on the ecological functionality of

breeding and resting areas for otters, as the popnlation of otters that reside within and ootside the

Natura

2000

area, must be considered to eoincide.

tn the assessment in relation to otters, the Environmental and Food Complaints Board has

emphasized that the immediate area around the road ronte is grazed and open without good

opportunities for hiding, and that on this basis it has been assessed that the areas immediately east of

the Natura

2000

area are unsuitable as breeding gronnds for otters. The eommittee has also

emphasized that the constrnction activities are temporary and that the activities will take place within

normal working hours during the day, and that there are good opportnnities for the species to seek

refuge both upstream and downstream where the construction works take place.

The Environment and Food Complaints Board has also emphasized that the landscape bridge in the

operational phase will ensure good passage conditions, which ensures that otters can pass under the

road along the stream in accordance with the management plan for otters.

Ad 6) Other nature

According to Annex 7 of the Environmental Assessment Act, cf. §

snbsection

an environmental

impact report must contain a description of the project’s expected significant impacts on the

environment of those in §

20,

sobsection 4, mentioned factors, including the biological diversity that

can be expected to be significantly affected by the project.

3.2.7

The Environment and Food Complaints Board finds no basis for overriding Horsens Municipality’s

assessment porsoant to section z, subsection of the Environmental Assessment Act.

according to

which the environmental impact report fnlfills the reqoirements of the law as far as description of the

project’s expected signilicant impact on natore is concerned, including bott-nosed frog, cuckoo-wort,

bott-leaved hair star and barn owl.

The Environmental and Food Complaints Board initially notes that there can be no requirement that

an environmental impact report most contain an independent assessment of ali species that can

potentially be found in an area. The committee points oot that it is the project’s expected significant

impacts on the environment that most be described in an environmental impact repnrt.

The Environmental and Food Complaints Board has emphasized that it is described in the

environmental impact report that dead seed was found in the area, just as it is described in the

environmental impact report that there is an occurrence of cuckoo grass on a limestone meadow west

of the project area. In this connection, the hoard has emphasized that, in connection with the project,

it has been assessed that there will be no impact from the lime excess, cf. section

3.2.4.

tn the opinion of the Environment and Food Complaints floard, it was flot necessary in the specific

case to carry out a doser assessment of the short-leaved hair star or barn owl, as the project cannot he

assomed to have a significant impact oo the popolation of the species io the area. In relation to the

bott-leaved hair star, the board has attached importance to Horsens Monicipality’s information that

the extirpated alder trees will remain in the area and can continoe to form a habitat for the bot-leaf

hair star. In relation to barn owls, the hoard has emphasized that no bnildings will be demolished or

trees felled in connection with the project, which are soitable for nesting barn owls.

3.2.8 Ad 7) Alternatives

This appears from section

20,

sobsection of the Environmental Assessment Act.

no. 4, that the

environmental impact report i.a. must contain a description of the reasonable alternatives that the

developer bas investigated, which are relevant to the project and its special characteristics, and an

indication of the main reasons for the chosen solotion, taking into accoont the project’s effects on the

environment. The environmental impact report mnst according to appendix 7, point 3, cf. section

20,

sobsection

also contain a description of the relevant aspects of the corrent environmental statns (the

reference scenario or the

alternative) and a brief description of its likely development if the project is

not carried out.

According to the practice of the Environmental and Food Complaints Board, alternatives, including

those proposed dnring the previons pnblic debate, mnst be deslt with more or less thoroughly. It is

snfficient that the overview of alternatives gives the public and politicians an opportnnity to assess the

desired project in relation to other realistic alternatives. The decisive factor is whether the necessary

basis for a decision can be said to have been provided. Thus, it cannot be required that an in-depth

analysis of (all) other alternatives be carried ont.[891

The Environment and Food Complaints Board finds no basis for overriding Horsens Mnnicipality’s

assessment pnrsuant to section a, snbsection of the Environmental Assessment Act.

according to

which the environmental impact report fulfills the requirements of the law as far as the description of

the investigated reasonable alternatives is concerned.

The Environmental and Food Complaints Board has emphasized that the environmental impact report

contains s description of the reference scenario and the likely development of the area if the project is

not carried out.

The Environmental and Food Complaints Board has also emphasized that ten alternative alignments

are explained in the environmental impact report, including citizen proposals received in the debate

phase, and that there is an initial assessment of the traffic effect of the proposals, and an overall

screening of the individual proposals impact on natural conditions, the landscape and cnltnral

conditions.

The Environmental and Food Complaints Board notes that the board cannot take a decision on

whether a decision, including the choice between different alternatives, is appropriate, just as the

board cannot take a decision on whether, in connection with the decision to apply for the connection

road at the specific location irrelevant considerations are incloded.

The environmental assessment rules do not in themselves determine limits on wbat authorities can

decide for political, economic or otber reasons, bnt only set requirements for the basis for the decisions

and the procedures for tbis

—

3.3 The Environment and Food Complaints Board’s other cornments

3.3.1

The Watcr Framework Direetive

The Environmental and Food Complaints Board notes that Horsens Monicipality should pay attention

to a renewed treatment to ensore that the project does not resolt in an additional supply of copper to

the watercoorse. b this connection, the board alan notes how there will not be a total additional supply

of copper to the watercoorse as a result of the project, if it is documented that the supply of copper

through road water is lesa than the redoction jo the sopply of copper to the watercoorse, which takes

place throogh other sources, including e.g. from agricoltoral land.

If this is not possible, the Environmeot and Food Complainta Board draws attention to the fact that the

project then only can be permitted if the derogation conditions in the Water Framework Directive are

met. 4 pcs. 7. The exemption provision has been implemented jo the environmental target order,

where it appears from section 4, sobsection 3, that the minister, at the reqoest of an aothority, has the

opportonity, after a concrete assessment, to decide that the authority under the circomstances and

conditions mentioned jo subsection

and

may deviate from the established environmental targets,

cf. section 8 of the execative order.

The Environmental and Food Compbaints Board draws attention to the fact that the hoard has not

herewith taken a decision on the conditions for deviating according to section 4, snbsection of the

Environmental Targets Execotive Order. 3, is folfilled.

The Environmental and Food Complaints Unard alan draws attention to the faet that jo 8 of Horsens

Monicipality’s executive order

reqoirements for the discharge of certain polbntants into streams,

lakes, transitional waters, coastal waters and sea areas, it is possible to designate a mixing zone around

discharge points where the environmental quality requirements within this zone can be exceeded.[go]

The board further notes that it is a prerequisite for determining a mixing zone that the discharge of

pollutants has previnusly been reduced as much as possible through the use of BAT, cf. section 5,

subseet ion of the executive order.

and that the envirunmental quality requirements are not exceeded

nutaide the mixing zone. The latter must be ensured by calculation according to § 7, subsection

cf.

subsection

3.3.2 Annex tV .species

Bat

to the event nf a renewed treatment, Horsens Municipality should cariy nut an asseasment of whether

noise from the prnject in the cnnstructinn phase in connection with the ramming of sheet piles can

affect Asinex IV apecies nf hats, particularly during breeding perioda. The Envirunment and Food

Complainta Buard notes in this connection that the breeding periods of the varinus species are

described in the management plan for bats. If, in a renewed treatment, it is assessed that the impulse

noise may have a negative impact nn breeding and roosting areas for bata, the municipality may

consider setting conditions in the section

permit regarding when the framing of sheet piles may

take place.

3.4 Fee

Aa a result of the decision, the appeal fee paid will be refunded, cf. sectiun

order.

No.

subsectinn nf the fee

3.5 Decision of the Environmental and Food Cornplaints Board

The Environment and Food Complaints Board revokes the decision of

January 2022 on the Section

permit for

a new connecting road from the commercial area Vega to Horsens C and remaods the

case for renewed consideration.

[i]

Legislative Decree No. 4 of 3 January

2023 00

environmental assessment of plans and programs

and of specific projects (EIA).

[21 Act No.

1715

December 2016 oo the Eovironmeotal and Food Complaints Board, as ameoded

hy Act No.

900

June

2022

on amendments to the Museums Act, Act on the Environmental and

Food Complaints Board and varions other laws.

[31

Executive order no.

132

January

2017

on fees for lodging complaints before the

Environmental and Food Complaints Board, etc.

[4]

Case no.

22/02909,

22/02917, 22/02922, 22/06815 and 22/06836.

[5] Case no. 22/02446, 22/02414 and 22/02410.

[6] Natura 2000 baseline analysis

2022-2027,

Bygholm Ådal.

[]

https://miljoegis.mim.dk/cbkort?&proflle=vandrammedirektiv2-bek-2os9.

[8] https://miljoegis.mim.dk/spatialmap?proflle=vandrammedirektiv3hoering2o2i.

[9]

In the Environmental GIS for consultation of the water area plans 2021-2027, environmentally

hazardous pollutants are referred to as nationally specific substances.

[io] https://vandplandata.dk/vp3hoering2o2i/vandomraade/vandloeb/DKRIVER6647.

[ii]

Question no.

21,

https://mst.dk/natur-vand/vand-i-hverdagen/spildevsnd/hvsd-er-spidevand

og-hvorfor-renser-vi-det/spoergsmaal-og-svar- about environmental quality requirements/#G.

[12] https://mst.dk/media/121329/52-baggrundsniveau-for-barium-zinc-kobber-nikkel-ng-

vsnadium-i-fersk-og-havvand.pdf.

[13] Conservation status of habitat types and species 2019. Habitats Directive Articie

reporting.

Aarhus University, DCE National Center for Environment and Energy,

pp. Scientific repnrt no.

34n.

[14] The ecoingy of the individual organism.

[ss]

LCn value, lethal concentration, expressinn of a chemical substance’s toxicity.

[i6] Road Directorate, Road rule: Fsnna passsges a gnide: cnnstniction and planning, August

2020.

[17] Amphibian Monitoring, DCE, TA No: A17, Version

2, 2018.

[18] Danish Environmental Protection Agency,

2007.

Noise from mads. Guidance from the Danish

Environmental Protectinn Agency no. 4.

Environmentsl

[ig]

Vejregelgmuppen Drainage,

202n.

HANDBOOK Drainage constnictinns

conditinns and Authority application Construction and Planning. Rules of the road. December 2020.

[20] Vollertsen, J., Hvitved-Jacobsen, T. Nielsen, A.H.,

2052.

Fact sheet on dimensinning nfwet

rainwater basins. Aslbnrg University, August 2012.

[21] Jensen,

J. &

Bak, J.L. 2018. Zinc

and

copper in the aquatic environment. Snurces, occurrence and

envirnnmental significance. Aarhus University, DCE

National Center for Envimnnment and Energy.

[22] Cf. Vollertsen,

J.,

Hvitved-Jacobsen, T. Nielsen, AH.,

2012,

Fact sheet on dimensioning ofwet

rsinwater basins. Aalborg University, August

2012,

and Gregersen, t.B., Rasmussen, S.H, Madsen, 5. &

Amnbjerg-Nielsen, K., Updating the spreadsheet for Skrift 30 (October 2016), Regnrække Version

4.1,

SVK,

https://spildevandskomiteen. dk/skrifters/.

[23]

Executive order no. 449 of

April

2019

on action programs for watershed districts.

[24]

The Environmental Protection Agency’s guidance for the executive order on action programs for

watershed districts, July

2017,

https://mst.dk/media/1333o1/bilag-i-vejledning-4-juli-2o17.pdf.

[25]

Danish Environmental Protection Agency,

2021,

draft questions and answers on discharge of

certain pnllutants

into

the aquatic environment, questinn 43.

—

[26] The judgment of the European Cotin of Justice of 7November2018 in case C-461/17, Holohan,

and the judgment of the European Court of Justice of 16 July

2020

in case C-411/19, Italia Onlus.

[27]

Judgment of the European Court of Justice of 4 March

2021

in joint cases C-473/

and C-474/

19,

Skydda Skogen.

[28] Executive order no. 1376 of

June

2021

on environmental assessment of plans and programs

and of concrete projects.

[29]

Management plan for otter (lutra lutra) in Denmark, Forest and Nature Agency, 1996.

[30] The Habitat Guidelines, gnidance no.

9925

Nuveniher

2020

for executive order no.

1595

of 6

December 2018 on the designation and administration of international nature protection areas and the

prutectiun of certain species.

[31] Cf. the comments to §

in proposal

144

to the Environmental and Food Complaints Board Act

(FT

20 16-17).

[32] Council Directive 92/43/EEC of 21 May 1992 on the conservation uf nature and ;ild animals and

plants.

[y] Directive 2009/147/EC of the European Parliament and of the Council of 30 Octoher 2009 on the

protection of

wild

birds.

[]

Directive 2000/60/EC of the European Parliament and of the Council of

October

2000

establishing a framework for Community water policy measures.

[]

Judgment of the European Court of Justice of 28 May

2020

in case C-535/18, Land Nordrhein

Westfalen, paragraph

90.

[36] Legislative Decree No.

126

of 26 January

201700

water planning.

[3v] Legislative Decree no.

119

of 26 January

201700

environmental targets etc. for international

nature conservatiun areas.

[38] Executive urder

00.448

11April2019

no envirunmental targets for surface water areas and

gruundwater bodies.

[cj]

Executive order no. 449 of ii April

2019 no action programs for watershed districts.

[40]

Guidance draft for the Act on envirunmental assessment of plans and programs and of cuncrete

projects (EIA) Concrete projects, Danish Environmental Protection Agency

2022,

section 3.

[4 ii Guideline no. 9627 of 6 July

2017

un executive order no action programs fur water area districts,

section

8.1.2.

[42] Council Directive 92/43/EEC of 21 May 1992 on the conservation of nature and

wild animals and

plants.

[]

Executive Order No. 2091 of 12 November 2021 no the designation and administration of

international nature conservation areas and the protection ofcertain species.

[]

See recital no.

of the

E1A Directive.

[]

See the comments to section

no. 28 of the bill, regarding the amendment of section 40 of the

Environmental Assessment Ad,

2020/1

[.SF

56 of 8 October

2020.

[46] Judgment of the European Court of Justice of

July

2015

in case C-461/13, Weser, paragraph

51.

[]

Judgment of the European Court of Justice of

July

2015

in case C-461/13, Weser, paragraph 46.

[48] See the judgment of the European Court of Justice of

July

2015,

case C-461/13, Weser,

paragraphs 5° and 69.

[]

Judgment of the European Court of Justice of May

2022,

case C-525/2o, Association France

Nature Environnement, paragraphs

and 45.

[so] Judgment of the European Court of Justice of 28 May

2020,

case C-535/18, Land Nordrhein

Westfalen, paragraphs 94-96.

[si]

Judgment of the European Court of Justice of 28 May

2020,

case C-535/18, Land Nordrhein

Westfalen, paragraphs 97-98.

[52]

Judgment of the European Court nf Justice of 28 May

2020,

case C-535/18, Land Nordrhein

Westfalen, paragraphs 100, 101 and 108.

Directive 2006/118 of

December 2006 stipulates according to art.

specific measures to

prevent and control groundwater pollution, cf. art.

17,

subsection

and

of the water framework

directive. The quality requirements for groundwater are laid down in Annex

of the directive, cf. art. 3

pieces.

[]

Judgment of the European Court of Justice of 28 May

2020,

case C-535/18, Land Nordrhein

Westfalen, paragraph

110.

[55] Judgment of the European Court of Justice of 28

May

2020,

case C-535/18, tand Nordrhein

Westfalen, paragraph 118.

[56] Legislative Decree No.

126

of 26 January

2017

on the Water Planning Act.

[57] Executive Order No.

1625

of t9 December

2017

on the determination ofenvironmental targets for

streams, lakes, transition waters, eoastal waters and groundwater.

[s8] Elsewhere referred to as Part B, Tahles 3 and 4.

[]

This parameter is the environmental quality requirement expressed as an annual average (general

quality requirement).

[60] This parameter is the environmental quality requirement expressed as the highest permitted

concentration (maximum cuncentration).

[611 Section 4.6, eondition assessment, environmentally hazardous pollutants,

https://mst.dk/media/s2217o/revideret-jylland-fyn-d-28o62o16.pdf.

[62] Seetion 4.3, measures for environmentally hazardous pullutsnts, purpuse uf the measures and

general conditions surrounding implementation, https ://mst.dk/media/ 133301/bilag-s-vejledning-4-

juli-2os7.pdf.

[63] Section 8.3.2, The envirunmental target has not been met, environmentally hazardous pollutants,

bttps://mst.dk/media/1333o1/bilag-s-vejledning-4-juli-2os7.pdf.

[64] See especially sectinn 8.3.2 in Draft guidance for executive order on action programs for

watershed districts, December

2021,

https://mim.dk/media/225714/udkast-vejledning-til-

indsatsprogram-vp3.pdf.

[6] Question no. 43 un how requirement values for a given substance in an outfall are determined

when environmental quality requirements for the substance have already been exceeded in the aquatic

environment, bttps://mst.dk/natur-vand/vand-i-hverdagen/spildevand/ what-is-wastewater-and

why-do-we-puri1-it/questions-and-answers-about-envirunmentsl-quality-requirements/#G.

[66] Judgment of the European Court of Justice uf 28 May

2020,

case C-535/18, Land Nordrhein

Westfalen, paragraphs 94-96.

[67] Judgment of the European Cuurt of Justice of 28

May

2020,

case C-535/s8, Land Nordrhein

Westfalen, e.g. items

and

mi.

[68] Judgment of the European Court of Justice of 28 May

2020,

case C-535/s8, Land Nordrhein

Westfalen, psragraph

100

[69] Judgment of the European Court of Justice of 28

May

2020,

case C-535/ 18, tand Nordrhein

Westfalen, paragraphs los and ss8, and judgment of the European Court of Justice of 5 May

2022,

case C-525/2o, Association France Nature Environnement, psragraphs

and 45.

[70] Judgment of the European Court of Justice of 28 May

2020,

case C-535/t8, tand Nurdrhein

Westfalen, paragraph

110.

[71] Judgment of the European Court uf Justice of 28 May

2020,

case C-535/ i8, Land Nurdrhein

Westfalen, paragraph

110.

[72] See case

C-127/o2

(Hjerte-Muslingejudgment), paragraph 6’, and paragraph 4 of the judgment.

[]

See e.g. case C-4o4/09, Commission v Spain, paragraph 99.

[4] See the judgment of the European Court of Justice of ss April

2013

in atse C-258/

11,

Sweetman,

paragraph 48.

[]

The EU Cummission’s announcement “Management of Natura

2000

sites The provisions of

Artiele 6 of the Habitats Directive 92/43/EEC”, 2018, seetion 3.6.4.

[531

[76] See the judgment of the European Coitrt of Justice of 7 November

2018 ifl

case

C-461/17

(Holohan), paragraphs

37-40.

[771

See e.g. Judgment of the European Court of Justice of 26April

2017 ifl

case C-142/16 (Moorburg),

paragraph

29.

[78] Judgment of the Eoropean Court of Justice of 7November

2018

in case C-461/17 (Holohan)

paragraphs

41-47.

[79] Guidance on the strict protection of animal species of Commiinity importance under the Habitats

Directive, Commission Communication of

October

2021,

C(2o21)

7301

(hei-eafter EU Commission

Guidance).

[8o] The EU Commission’s guidance, section

2.52-2.57.

[8i] Guidance no. 48 to executive order no.

1595

of 6 December

2018

on the designation and

administration of international nature conservation areas and the protection of certain species, Danish

Environmental Protection Agency, December

2020

(hereinafter the Danish Environmental Protection

Agency’s habitat guidance).

[82]

The Environmental Protection Agency’s habitat gnide, section

9.4.1.

[83] The Environmental Protection Agency’s habitat guide, section

9.7.1.4

and the EU Commission’s

guidance point

2.52,

according to which the habitat directive’s article

12,

siibsection

letter d, should

be understood asa goal of maintaining the ecological function of breeding and resting areas.

[84] Cf. throughout the Environmental Protection Agency’s habitat guidance, section 9.6.4-9.6.6.

[85] The EU Commission’s guidance, section

2.73.

[86] Judgment of the European Court of Justice of 28 October

2021,

2nd section, case C-357/2o,

Magistrate der Stadt Wien (Grand hamster II), paragraph

52.

[87] The Danish Environmental Protection Agency’s guidance for executive oider no.

1595

of 6

December

2018

on the designation and administration of international nature protection areas and the

protection of certain species.

[88] Management plan for bats. Protection and management of the

Danish bat speciel and their

habitats, The Norwegian Nature Agency,

2013,

p. 37.

[89] Cf. guidance on EIA in the planning act

(2009),

p. 57, on the practice of the former Nature

Complaints Board.

[90]

Executive Order No.

1433

November

2017

on requirements for the discharge of certain

pollutants into streams, lakes, transitional svaters, coastal waters and sea areas.

Case:

22/ 02461,

Date:

February

2023.

Subjects:

Environmental assessment of specific projects

To-do list:

Add to to-do list

Highlights:

Show/hide highlight

The Environment and Food Complaints l3oard

Nævnenes Hus

•

Toidboden

no.:

7240

•

CVR:

37795526. [email protected]

Availability Statement

•

8800 Viborg. Tel.

..-:-:

-,.—-__-.--—-

r,-tTZ-f,- -i- :‘t’

,rrr

AKT 421067

[Follow-up on the DK deterioration questions]

Dokument 4

[Aktdokument]

Til:

Cc:

Fra:

Titel:

Sendt:

Bilag:

Rikke Slot Benyahia ([email protected]), Cecilie Spanner Rydeng ([email protected]), Paolo Perotti ([email protected])

Kirsten Vielwerth ([email protected])

Follow-up on the DK deterioration questions

29-05-2023 12:21

Aktdokument.pdf; Letter to COM with DK questions on deterioration.docx; Translation of Environmental and Food

Board of Appeal 22-02461 w ad Astra.docx;

Dear Claudia, dear

I was wondering if you have had time to consider the questions we sent 16 May on deterioration under the Water

Framework Directive?

Would it be possibile for you to give an indication of when we may expect you to answer them?

I am sorry to put pressure on you for this, as I am sure you are already very busy but DG ENV/Commissions

interpretation and understanding of the concept of deterioration is important and will be taken into account by the

Government in the further deliberations and dealings with the 22/02461-ruling by the Environmental and Food Board

of Appeal. The next very important step looking into the economic aspects and consequences is planned for 5 June.

If there is anything we can do if you would want any kind of clarification or have questions, please do not hesitate to

contact

US.

Kind regards, Kirsten

Kirsten Vielwerth

Water and Cilmate Adaptation

Department of the Ministry of Environment

+45 41 28 16

761

kirstrnim.dJ>

Ministry of the Environment

Vand og Klimatilpasning

Miljøministeriets Departementet

Vester Voldgade 123

DK 1552 København V Tlf. +45 38 142 142

www.mim.dk

Miljøministeriet

Aktdetaljer

Akttitel: Questions on deterioration

Aktnummer: 9

AktiD:

Dato:

Type:

Dokumenter:

415851

17-05-2023 11:48:47

Udgående

[1] Letter to COM with DK questions on deterioration.docx (MEDTAGES IKKE)

[21

Translation of Environmental and Food Board of Appeal 22-02461 wad Astra.docx (MEDTAGES IKKE)

[3] Aktdokument.html (MEDTAGES IKKE)

Den 20. februar 2024

Miljøministeriet

Aktdetaljer

Akttitel: DK questions on deterioration in the WFD

Aktnummer: 8

AktiD:

Dato:

Type:

Dokumenter:

415448

16-05-2023 18:38:30

Udgående

[1] Letter to COM with DK questions on deterioration.docx

[2] Translation of Environmental and Food Board of Appeal 22-02461 wad Astra.docx

[3] Aktdokument.html

Den 20. februar 2024

AKT 415448

[DK questions on deterioration in the WFD

]

Dokument i

[

Letter to CCM with DK questi...

Ministry of Environment

of Denmark

Department

Water and Climate Adaptation

Case No

2023-4355

Ref. kirst, rurab, limni

May

16 2023

Claudia.O1azabal(ec.euroøa.eu

Env-Water;ec.europa.eu

Questions on the Water Framework Directive re. deterioration

Dear Claudia Olazabal, dear

Thank you for taking the time to talk to Head of Division, Katrine Rafn and myseif

10.

May

2023

on the concept of deterioration in Articie 4 of the Water Framework

Directive.

As agreed upon in the meeting, we forward our questions in writing, and we would

appreciate to get your view and interpretations back in writing. We would be grate

ful ifyou would send your reply shortly, as this will heip inform our assessment of

the way forward. We are aware that the statements will represent the views of the

DG ENV of the Commission, and that the European Court of Justice is the sole

authority on interpretation of the aquis.

.1.

We also forward ruling

22/02461

from the Danish Environment and Food Board

of Appeal in English1. The most relevant part is:

3.2.3

Effect on targeted

surface water bodies, pages 38 43,

ifl

particular the three sections on page 43

which we have highlighted.

—

For your information, the Environment and Food Board of Appeal is an indepen

dent court-like institution within the field of nature, environment, agriculture,

fisheries and food. The rulings are binding for state and local authorities’

administration and authorization of plans and projects.

The

questions:

•

Does Article 4 of the Water Framework Directive, as interpreted by the

ECJ, allow for an individual assessment of the significance of an addition

of a substance to a specific water body in order to establish if such addition

constitutes “deterioration of the status”, when the EQS for that substance

has already been exceeded and the water body has thus been classified in

the lowest class?

o In other words; will it only constitute deterioration contrary to

Article 4 if the discharge will lead to an increase in the

Section

3.2.3

Effect on the targeted surface water body has been translated by a

professional team of translators, whereas the rest of the ruling is google translated.

Ministry of Environment

Frederiksholms Kanal 26

1220

Copenhagen K Denmark

Phone +4538

142142

CVR 12854358 EAN

5798000862005

mimrnim.dk

vww.rnimdk

concentration of a given substance in the water body, i.e. because

the discharge contains a higher concentration of the substance

than the current concentration in the receiving water body, or will

any addition of the substance independent of amount/concen

tration be contrary to Articie 4 in this scenario (when the EQS is

already exceeded)?

—

In either case, in the light of the

ECJ

rulings, what is the reasoning

behind the Commission’s interpretation?

—

•

In order to establish an increase in concentration is it a requirement that

it must be measurable? In most situations, it will be possible to caiculate

even negligible additions does that constitute an increase and therefore

a deterioration?

—

•

If an assessment is allowed, will it be possible to take the significance of

the impact or discharge on a quality element at water body level into

account when the quality element is already in the lowest class?

What scale shall the assessment be conducted at? (Water body level or

other units?) Is there a distinction between surface water and bodies of

ground water?

•

Should you have any questions, please do flot hesitate to contact us, and tharik you

in advance.

Yours sincerely,

Kirsten Vielwerth

Special Consultant

+45

41 28

i6 76

AKT 415448

[DK questions on deterioration in the WFD

]

Dokument 2

[Translation

of Environmental

Miljøministeriet

Departementet

Vand og Klimatilpasning

J.nr. 2023-4355

Ref. KIRST

Den 16. maj

2023

Translatio& ofEnvironment and Food Board of Appeal

22/02461

Revocation and repatriation of Section

connecting road

22/02461,

permit for the establishment of a new

The Danish Environment and Food Board of Appeal has made a decision according to section 25, cf.

section 49(1), of the Danish Environmental Assessment Act (miljØvurderings!oven).Jjj

The Danish Environment and Food oard of Appeal cancels the decision made by the Municipality of

Horsens on 25 January 2022 to grant a section 25 permit for a new link road from the Vega industrial

district to motorway E45, exit Horsens C, and remits the case for renewed processing.

The paid appeal fee is not reftinded.

The Environmental and Food Complaints Board’s decision is final and cannot be appealed to another

administrative aothority, cf. §

of the Act on the Environmental and Food Complaints Board[2] and §

of the Fees Order.[3] Any legal action to review the decision must be brought within 6 months, cf.

section 54, subsection of the Environnsental AssessmentAct.

The decision has been taken by the board, cf. §

of the Act on the Environmental and Food Complaints

Board, which in accordance with the Environmental Assessment Act § 49, subsection

has dealt with

the case in the board’s medical department (department io), cf. § 3, subsection

no.

10,

in the Act on

the Environmental and Food Complaints Board.

The complaint to the Environment and Food Complaints Board 4

The details of the case. 5

2.1

Area 5

2.2

Natural and planning conditions.

2.2.1

Natura

2000

area no. 236. 5

2.2.2

The watershed plans. 5

2.3

The contested decision. 6

Google translation, apart from pages 38

company.

—

43 that has been translated by professional

Sliljonlinistenet

Fredenksholnts Kanal 26.

1220

Kobenha,

Tlf. 38

42142

CVR 12854358. SAN 5798000862005 [email protected] .w,s-ss-.mim.dk

Project 6

2.3.2 Section

permit. 7

2.3.3

The basis for the decision. 10

2.3.4 The Natura 2000 impact assessment. 10

2.3.5 The environmental impact report. 22

2.4 Content of the complaint. 29

2.4.1 Authority disqnalification

2.4.2 Impact of the Natnra 2000 area 29

2.4.3 Provision of the habitat impact assessment. 31

2.4.4 Annex IV speciel

2.4.5 Other nature 33

2.4.6 Alternatives 34

2.4.7 Determination of terms 34

2.4.8 Other objections 34

2.5

Horsens Municipalitys comments on the complaint. 35

2.5.1

Authority disqualification 35

2.5.2

Natura

2000

hahitat impact assessment. 36

2.5.3

Provision of the impact assessment. 37

2.5.4

Annex IV speciel 38

2.5.5

Other natnre 39

2.5.6

Alternatives

2.5.7 Determination of terms

2.5.8 Other remarks

2.6 New information during the processing of the case.

3. The Envirnnmental and Food Complaints Bnards comments and decision

3.1 The Environmental and Fond Complaints Boards examination.

3.2 The Environmental and Food Complaints Boards comments 43

3.2.1

The legal framework. 43

3.2.2

Incapacity of authority 48

3.2.3

Impact on targeted snrface water areas 50

3.2.4

Ad 3) Impact on Natnra

2000

area. 57

3.2.5

Ad 4) Provision of the impact assessment. 62

3.2.6 Ad

)

Impact on Annex IV speciel (bats, otters, newts and frngs) 63

3.2.7

Ad 6) Other natnre 69

3.2.8 Ad 7) Alternatives 7°

3.3 The Environmental and Food Complaints Board’s other comments

3.3.1 Water Framework Directive

3.3.2 Annex IV speciel

3.4 Fee.

3.5 Decision nf the Environmental and Food Complaints Board.

2.3.1

i. The complaint to the Environment and Food Complaints Board

The decision was appealed to the Environment and Food Complaints Unard on 9 Febniary

2022

by a

resident of the area. The cnmplainant snbmitted suppiementary cnmments on 4 May

2022, 13

September

2022

and 26 October

2022.

Complainant has stated in particular that

•

there is disqnalification from the authority according to Section

Environmental Assessment Act. 3, at Horsens Mnnicipality,

40,

snbsection of the

•

the prepared Natura2000 impaet assessment is flawed and insufficient, ineluding in relation to

groundwater lowering

the consultancy hehind the Natura

2000

impact assessment is not impartial,

the assessment of Annex IV species is flawed and insufficient, ineluding in relation to bats,

other nature is not described sufficiently in the environmental impaet report,

the stodies of alternatives to the alignment are insofficient,

there is a lack ofa description of ali the project’s characteristics and of intended measores to

avoid, prevent nr limit significant harmful effects on the envirunment, and

The Section

permit is in hreach of a wetlands deciaratiun registered nn part nf the area, and

that the connecting road is not necessary.

The points of complaint are forther elaborated in section

2.4.

Doe to their volume, the sent letters of

complaint are not reprodoced in hill in the decision. Both the complaint and the sopplementary letters

of eomplaint are inciuded in the board’s processing of the ease in their entirety.

Jul3’

2022,

the Environmental and Food Complaints Board refosed to grant the compiaint

suspensory effect.

b addition, a complaint has been filed with the Environmental and Food Complaints Board regarding

Horsens Monicipality’s decision nu exemption from § 3 and § 16 of the Natore Protection Act, the

municipality’s permit for temporary reinjection of groondwater in conneetion with temporary

groondwater lowering and the monicipality’s crossing permits for the interim bridge over Hatting Bæk

and the landscape bridge over Bygholm

and Hatting Brook.[4]

The complainant has also lodged a complaint with the Planning Complaints Buard regarding the

onderlying planning basis for the project and the environmental assessment of the plan. By decision

on 5 December

2022,

the Planning Appeals Board did not ophold the complaints about Horsens

Monicipality’s flual adoption of municipal plan supplement no.

2017-34

with associated

environmental report.

[]

The details of the case

2.1

The area

The project area is located in the rural zone west of Horsens and south of Lund, and the plaooed

alignment crosses Bygholm Mal, desiguated asa landscape worthy of preservation. The project area

inclodes protected nature according to Section 3 of the Nature Protection Aet, inelodiog the streams

Bygholm

and Hatting Bæk, fresh meadows in the lower parts of the river valley, overgrazing nu the

slopes of the river valley, two registered bogs and a small lake. There are also approx.

300

m west of

the project area an area with a sooth-facing slope with older deeiduous trees, as well as approx. 80 m

and approx.

200

m east of the project area are wooded slopes.

The landscape in and around the projeet area appears as an undisturbed river valley, apart from a few

agricultural and residential properties located on the edge of the river valley, as well as two high

voltage lines of

400

kV and

150kV

respeetively, which cross the river valley approx.

400

m east of the

landscape bridge, and which runs parallel from east to south through the southern part of the project

area. In addition, the prnject area eonsists of cultivated flelds.

2.2

Natural and planning conditions

Natura 2000 area no. 236

The project area is approx.

m west of Naturs

2000

area no.

236,

Bygholm Ådal, which consists of

hahitat area H236. Bygholm

nins through the Natora

2000

area approx.

130

m upstream Hatting

Bæk outlet in Bygholm

Å.

2.2.s

The applicsble designation basis for the hahitat area appears from the Natura

2000

basic analysis

2022-2027.[6]

From this, it appears that the basis for designation includes the following species:

spring snail, narrow-mouthed whorl snail, Desmoulin’s whorl snail, brook lamprey and otter. In

addition, the basis for designation includes the following natural types: nutrient-rich lske, stresm,

limestone grassland, acidic grassland, occasionally ‘eet meadow, spring forest, rich heather and alder

and ash forest.

2.2.2

The watershed plans

It appears from MiljuGiS for the water area plans

20 15-2021

that hoth Bygholm

and Hatting Bæk

are targeted for good ecological and chemical condition.[7]

From MiljeGIS on hearing of the water area plans

2021-2027,

it appears[81 that the overall ecological

condition of Hatting Bæk is poor, as the condition of small animals is moderate, the condition of

aquatic plants and environmentally hazardous pollutants[g] is unknown and the condition of fish is

poor. The chemical state is unknown.

Furthermore, it appears that the overall ecological condition in Bygholm

Å downstream of the ontlet

from Hatting Bæk is high, as the condition of small animals is high. The other organic quality elements

are unknown, as is the chemical state.

Upstream of the outlet from Hatting Bæk, the overall ecological condition in Bygholm

is poor, as the

condition of aqnatic plants and fish is poor, the condition of small animals is high and the condition of

environmentally hazardous pollntants is not good. The chemical condition is not good, which

according to Vandplandata is due to exceeding the environmental qnality requirement for mercury in

biota fish, anthracene in sediment and nonylphenols in water.[ioj In relation to the assessment of the

state of environmentally hazardous pollutants as not good, it also appears from Vandplandata that this

is due, among other things, to an excess of the content of copper in the water, as a level of copper of

1.717

pg/l has been measured, and that the general environmental quality requirement is 1.48 ig/l.

The environmental quality requirement for the maximum concentration of

2.48

pg/l has also been

breached, as the highest measured concentration is

2.8

pg/l.

It appears from the Danish Environmental Protection Agency’s FAQ on questions and answers about

the discharge of certain pollutants into the aquatic environment from

December

2021

that the

background valne for copper in watercourses is 0.48 pg/l.[tiJ Previonsly, the background value for

copper in streams was calculated to be 0.66 pg/l.{t2]

The contested decision

The

project

The project includes the establishment of a connecting road between Vrendingvej and E45 exit no. 6b

Horsens C. The road connects to the signal system at Vrondingvej, which gives access to the access

2.3

2.3.1

road to a planned bosioesa area, called VEGA, north of Vrondiogvej. To the aouth, the road courae ja

connected with a new “leg” jo the roondabout at the E45 exit Horsena C.

The route ja approx.

1.3

km bog aod will be boilt as a two-laoe road with an 8 m wide carriageway and

a 5.5 m ivide djscoont

each ajde of the road. In the middle of the stretch of road, the road leads over

Bygholm

and Hattiog Bæk at an approx.

130

m long laodscape bridge designed as a 5-apao concrete

bridge with a clearance of 7 m.

b connectjon with the project,

2-4

dead alder treea most also be felled in the aligoment of the road,

and an jnterjm bridge most be bujlt over Hatting Bæk to enable work traffic, which ja carried ont by

potting down wooden or steel polea on both sidea of the atream.

Four raiowater baajns will he eatabliahed, and the collected rainwater s4ll he led to fonr rainwater

baaina with diacharge to Bygholm

Å.

Scction

permit

Horsens Municipality, Traffic and Roada, applied on 7 October

2020

for the conatniction of a nei’ road

connection between Vrondiogvej and E45. On the basis ofa hearing from

October

2020

to 18

November

2020,

Horsens Municipality, Nature and Environment, sent a delimitation of the subjects

that were to be incbuded in the environmental impact report. Horsens Municipality, Traffic and Road,

aa the developer, has had a draft environmental impact report prepared by an external consultant.

2.3.2

The environmental impact report, together with the draft §

permit and draft diacharge permit, has

been in public consultation for 8 weeks from 8 October

2021

to 3 December

2021.

Horsens Municipality, Nature and Environment, has on

January

2022

made a decision to issue a

Section

permit to establiah a new road connection between Vega-Horsens C aa deacribed in the

environmental impact report for the project.

Tt appears from the Section

permit that Horsens Municipality, Traffic and Road, is organizationally

separate from Horsens Municipality, Nature and Environment. Horsens Municipality, Nature and

Environment, has received assistance from another external consnlting company to review the

deveboper’s environmental impact report, including calculations and assessments of impact on, among

other things, the Natura

2000

area and Annex TV species.

It appears from the Section

permit that the permit is granted on the condition that the project does

not deviate from what is described io the project description in the environmental impact report and

the developer’s application for the project, and that the road project must be established within the

physical and environmental framework and conditions, which appears in the environmental impact

report and within the area allocation specified jo municipal plan supplement

20 17-34,

Technical

Facility, Horsens Vest.

Tt also appears that the permit is granted on terms that are based on the environmental impacts that

the enviroomental impact report uncovers, incbuding the proposals fur mitigation measures that are

incorporated into the road project under the individual environmental themes and listed together jo

the report’s non-technical summary.

The Section

permit stipulates, among other things, the fulluwing conditions:

“Terms in connection with the execution of the work:

17.

As far as possible, the work must he carried out within normal working hours, which means

weekdays between 07:00-18:00. Ramming of sheet piles must not take place ontside this period.

s8. In connection with the construction of the fonndations for the landscape bridge, sheet pile walls for

construction pits must he framed aroond the foundations next to and between Bygholm

and Hatting

Bæk.

Conditions for consideration of Annex IV species:

35. Removal of older, bat-friendly trees mtist be avoided as far as possible. If older, bat-friendly trees

are to be removed, for the sake ofbats, this most be done in collaboration with the Danish Natnre

Agency. Concrete and careful investigations must be carried out before the removal. The trees may

only be felled in the period between

September and

October. Felling at other times requires a

dispensation, which must be applied for at the Danish Environmental Protection Agency

36. For esch tree removed, three bat boxes of a type corresponding to Schwegler 2FN or 2F of dark

wooden concrete must be set tip. The boxes are set np on suitable trees along, or in the immediate

vicinity of Bygholm

Å.

The boxes most be installed and functional before the trees are removed.

37. On the bridge, screens in matt material that do not reflect light must be installed at a height of 1.6

meters above the finished road in the full length of the bridge, for the sake of bsts and birds.

38. Kong the road over the dams in the river valley, a dense planting of trees and shruhs that are

natnrally native to East Jutland will be established at a height of min.

2.5

m above the finished road, to

lift low-flying bats above the trsffic. South of the landscape bridge, the planting most follow the course

of the road for at least

100

m, on both sides of the road. North of the landscape bridge, the planting

mnst follow the course of the road for at least

130

m, on both sides of the road. At the ends of the

bridge, the planting must follow the slope towards the river valley.

39. Until the necessary dense planting has been established, a

2.5

m high game fence/wire fence with

dense mesh most he established, cf. the Road Directorate’s guidance on fauna passages4, on the

section with planting cf. conditions 36. The fence or planting must he established and fonctional when

the road is pnt into use.

40.

For the sake of amphibians, the developer must establish a permanent amphihian fence on both

sides of the road, on a200 meter long stretch from the road bridge on the north side of Bygholm

Å.

The toad fence must be established, cf. instructions The Road Directorate’s gnide “Fencing along

roads” and Experience catalog for tosd fences.

41.

If, contraiy to expectations, finds of Annex IV speciel are fonnd in the construction area, which

have not been located in connection with the field investigations and which are therefore not described

and sssessed in the environmental impact report, the work must be stopped immediately and Horsens

Municipality must be notifled immediately.”

It also appears from the decision that the Municipality of Horsens has reviewed the environmental

impact report in accordance with §

of the Environmental Assessment Act with the involvement of

the necessary expertise in order to ensure that it meets the requirements of §

20.

Overall, the

Mnnicipality of Horsens assesses that the project does not entail such a signiflcant impact on the

environment, that it cannot be permitted when the terms of the permit and terms ofsupplementary

permits sre complied with. Based on the environmental impact report, it has been assessed that there

is no need for monitoring.

In relation to the impact on Natura

2000

areas, it appears from the §

permit that the nature types

that N236, Bygholm Ådal, is designated to protect, will not be affected by the project, or cumulatively

with other projects neither in the establishment phase nor in the operational phase, as the project is

ontside the Natura

2000

area.

It also appears from the permit that Horsens Municipality assesses that the project will not affect or

damage the designation basis and integrity of the natural areas, and the project does not prevent the

realization of the gnal of favorable conservation status.

Regarding Annex IV species, it appears from the Section

permit that there are potentially snitable

habitats in the project area for the Annex IV species field lizard, pointed frog, large newt, beach toad

and species of bat. No occurrences of Annex IV species of amphihians and reptiles have been

registered in the project area, nor have snch species been fonnd dnring the inspections. b the summer

2021,

a bt owner stated that a single individnal of a large newt was found, just as the Int nwner

snbmitted information in December

2021

ahnnt a fog that Horsens Municipality considers to bea

butt-nnsed fog, which is nnt an Annex IV species. The municipality has assessed that the cnnstrnction

workers do not pose a threat to these species, as the wnrk takes place during the day nutside the times

nf the day when the amphibians migrate to and from their breeding and resting areas.

It alsn appears from the permit that, during the inspections, large nnmbers ofa total nfnine species of

bats were found in the river valley, inclnding lnng-eared bats, snnthern bats, brown bats, pygmy bats,

troll bats, water bats, pond bats, lnng-eared bats and pipistrelle bats. Horsens Municipality has noted

that the deftinct alder trees in the road route must be remnved in cnBabnratinn with the Nature Agency

and the Danish Environmental Prntectinn Agency, and that it has alsn been assessed that the remnval

will not affect the occurrence of hat species’ ecnlngical fttnctinnality. The mnnicipality has also

assessed that the hridge will not cause a barrier effect for bats, as the bridge’s clearance between the

river valley and the underside of the middle three bridge spans is apprnx. 7 m.

The municipality also notes that it appears from the environmental impact report that the planting and

the tempnrary fence, which is established on the road sbopes abong the road, ensures that the bats are

either led dnwn into the river valley nr lift the bats that may cross the road higher op. Against this

background, and given that it is a twn-lane road, the municipality has assessed that the cnnditinns set

are sufficient to prntect the presence nf bats in the area.

Regarding targeted water bodies, it appears from the decisinn that the discharge nf water from the

road construction’s rainwater basins ;4lI nnt lead to an increased risk of a deterinration nf quality

elements in Bygholm

nr the final recipients Bygholm Se and Horsens Fjord. The discharged water

qnantities are relatively small in relation to the water flow in Bygholm

Å,

and the dilutinn is therefnre

high in relation to nxygen-cnnsnming nrganic matter, harmful substances and salt.

It alsn appears that calcnlatinns in the environmental impact repnrt show that there will be a net

rednctinn nf leached nntrients from the areas invnlved in the road cnnstrnctinn, compared to the

current leaching from the agricultural areas, and that the discharge from the rainwater basins will

result in a limited discharge nf copper and zinc.

Since the cnncentratinn increases in cumulation with other known snurces are qnite small, the

discharge is assessed to have no significant overall impact nn the water cnurse. The road system’s

rainwater basins effectively dean PAHs and mercury. Horsens Municipality has therefnre assessed

that the drainage from the basins to Bygholm

does not lead to a deterinration of the condition of the

surface water area, does not lead to a risk of a decline in any of the quality elements, nr hinders the

fulfillment of the established environmental target in relation to the substances where there are

currently exceedances cf. the Danish Envirnnmental Protection Agency’s studies from

2015.

The basis for the decision

It appears from section

11.1

of the environmental impact report that a separate Natura

2000

impact

assessment called Natura

2000

impaet assessment and assessment of Annex IV species for the new

connection road, Vrendingvej E45, Horsens (hereafter referred to as the “hahitat impact

assessment”), which is attached as appendix 7 to the environmental impact report.

2.3.3

—

Tt also appears from seetion

11.2

of the environmental impact report that the possible indirect impaet

on the Natora

2000

area, N236, Bygholm Ådal, is examined in the Natura

2000

impaet assessment.

tn the following, the parts of the Natura

2000

habitat impaet assessment and the environmental

impact report that are relevant to the case are reprodueed.

The Natura

2000

impaet assessment

Semi-natural dry grassland and serubland faeies on ealeareous substrates

tt appears from section

7.1

of the habitat impaet assessment that the light-open habitat nature types in

the Natura

2000

area have been mapped over three stndy periods, and it is therefore assumed that the

current designation basis is fair for the distribntion and condition of the nature types.

2.3.4

Tt also appears that the elosest light-open nature type in the Natura

2000

area is an area with Semi

natural dry grassland and serubland facies on calcareous substrates, loeated approx.

300

m from the

road’s route, and that the hahitat eannot be physically affeeted, but can potentially be affeeted by

nitrogen deposition from the road’s traffic.

Tt also appears that nitrogen deposition from the road’s traffie emissions in cumulation with existing

sources in the area is assessed on the basis of the annually ealeulated background deposition for the

area in connection with air monitoring in the NOVANA programme.

Tt also appears that, in conneetion with the preparation of the habitat impact assessment, speeific

caleulations of the nitrogen deposition have been made based on the location of the road and several

points of interest. Based on the modeled background bad in the area, whieh amounts to approx.

12.5

kg N/ha/year, and the caleulated deposition nf a maximum of

0.2

kg N/ha/year, the deposition is

assessed, based on the struetural and species condition of the grassland, not to pose a threat to the

conservation statns of the grassland.

It has heen coneluded in the habitat impact assessment that the nitrogen deposition as a result of

emissions from road traffic at the grassland nu calcareous substrateswill be so low that it will not cause

an impaet on the conservation status of the nature type in the Natnra

2000

area, not even in

cumulation with the existing background bad, whieh has been declared to

12.5

kg N/ha/year.

Overall, it is assessed that the establishment of the road will not prevent the achievement of a

favorable conservation status for the concrete grassland on ealcareous substrates. Likewise, the road is

not assessed to pose a risk to the nature in the habitat area and the integrity of the area.

Vertigo geyeri whorl snail. narrow-mouthed whorl snail and Desmoulin’s whorl snail

Tt appears from seetion

5.4.1

of the habitat impact assessment that the marsh snail is on the basis of

the designation for habitat area H236 Bygholm Ådal, and that it is found in stable marshy/wet, open

or lightly shaded stands of heather or similar stands of other plant species, e.g. tall sweet grass or reed

grass. According to the munieipality’s § 3 registration, in the habitat area within the stud)’ area, which

constitutes an area around the project’s alignment, there are marsh areas with talT perennials/reed

swamps. Tt appears that these areas can be potential habitats for marsh snails, and that the potential of

the areas as habitats has been assessed by the botanical registration. A search for the species has been

carried oot at one location, which is assessed to constitote a soitable habitat.

Et also appears from section

5.4.2

of the habitat impact assessment that no Desmoolin’s whorl snails

were foond during the inspections in the stody area.

En relation to the vertigo geyeri whorl snail and narrow-moothed whorl snail, it appears from the

habitat impact assessment section

7.1

that the vertigo geyeri whorl snail and the narrow-moothed

whorl snail are linked to botanically fine, open, calcareous and fairly stable rich sedges, extremely rich

sedges and sedges.

En addition, it appears that the three species are registered in connection

dth

springs and sedges in

the central and western part of the Natura

2000

area, more than

900

m from the project area. It also

appears that no habitat types have been registered that wotdd he able to support the presence of the

vertgo geyeri whorl snail nr the narrow-mouthed whnrl snail near the project area, and that doe to the

distance, it is estimated that the project

will

not affect the

known

popnlations of the Desmoulin’s whorl

snail, the vcrtign geyeri whorl snail nr the cronked screw snail. Et also appears that, shnuld a

pnpulation stilE be found in the prnject area nutside the habitat area, it is cnnsidered nnt tn have a

direct impact on the pnpulatinns ifl the habitat area.

Bronk lamyrey

In relation to the occurrence nf the brnok lamprey, it appears from sectinn

7.1.4

of the habitat impact

assessment that, in the perind

2011-2016,

a mapping of the nccurrence and distribution of the brnnk

Iamprey was carried nut with the main focus on the Natura

2000

areas where the species is on the

basis of designation. The species has also been monitored by the general NOVANA control mnnitoring

ofstream fish across the country bnth inside and nutside the habitat areas in the perind

2010-2016.

Et also appears that, according to the baseline analysis

2016-2021

for the Natura

2000

area, N236,

Bygholm Ådal, the lamprey is not registered by the NOVANA monitoring, and that in the latest

baseline analysis

2022-2027

it is stated that no monitnring has been carried

mit

brook lamprey in the

Natura

2000

area.

It appears that, according to the Article

repnrt

ifl 2019[13],

there are no signs of a decline in the

populations of the Brook lamprey throughout the countiy, and that the consenation status of the

Brook lamprey is assessed to be favorable.

tt has also been assessed that the stretch of watercourse aronnd the project area can be a breeding

ground for the species and a migration site when the species seeks nut the smaller watercoorses to

reproduce. The stretch is not considered to be a likely breeding area, as the bottom is mainly sandy

and there is considerable sand migration. Hnwever, it appears that there iill be suitable breeding sites

at several of the tributaries to Bygholm

Å,

including the Hatting Bæk tributary.

En relation to the impact nn the brook lamprey doring the construction phase, it appears that the

project is not assessed to be able to affect a possible population of brook lamprey in the stream system

during the construction phase, as the project does nnt include physical changes to the stream. Et is also

ensured during the cnnstruction phase that, in the event of large rainwater events, surface water with

suspended material does not flow from the project area directly to the watercourse, for example by

estabhshing raimsater basins and/or by gutters ‘md cul erts The amount ofsod particles and

nutnents from surface s ater dunng the construction phase is therefnre assessed to be of no

importance to lampreys on the basis of the relatively low amount and the lampreys’ general

autoecology.[s4]

In relation to the impact on the brook lamprey during the operational phase, it appears from the

habitat impact assessment on fluctoations in the oxygen concentration that any very small impact is

not assessed to pose any threat to the brook lamprey, which is not normally considered to be a species

that is particularly sensitive to lower oxygen tensions. The species’ natural hahitat is also in the areas

of the stream where the oxygen conteot is not the highest. It also appears that any impact will be from

isolated events which may canse a potential and short-term impact ootside the Natnra

2000

area.

tn relation to the infloence of salt, which can continne during the winter season, it appears that in

connection with the environmental impact assessment of the project, a worst-case scenario has been

calculated, where at the end of the winter, a maximum total concentration of 667 mg/I can occur at full

mixing in Bygholm

There are no general ecotnxicnlogical limit values for salt in freshwater systems,

hut it is far below the LC50 values[s5j that exist for various animal gronps linked to watercourses. It is

also below

3,000

mg/I, which according to studies is the value at which there is significantly increased

drift for species such as those in Bygholm

Å.

The drift rate has been nsed in some studies as an

expression of changed behavior in invertebrates, as they use drift asa way to escape unfavorable

cnnditions.

tt appears that the salt concentrations at the ontlet point can occur

ifl

elevated cnncentrations. Since

salt is relatively easily soluhle, and since salt will thus only be in a modest plume around the outlet

point, it is expected that there will only be a real hinlogical impact nf salt in the stream in particularly

severe cases. tt is assessed against this hackgrnund that salt discharge to the pools in Bygholm

will

flot affect the bronk lamprey to such an extent that it could prevent the achievement nf favorable

conservatiun status.

tn relation to the impact of envirunmental hazardous substances, it also appears from the habitat

impact assessment that today a numher of exceedances are seen at the measuring station immediately

upstream nf the new road at Korup Bro. It appears that the exceedance is only seen in the priority

substances anthracene (PAR), mercury, nonylphenol, which relate to the chemical state, and copper,

which is monitored under the package of nationally specific substances.

It appears very unlikely there will be measurable discharge of anthracene from the rainwater basins,

that nonylphenol probably originates from sewage treatment plants and domestic waste water and nut

from road water, and that there is only a small contribution of mercury associated with separate

rainwater and thus also road construction. Mercury, nunylphenol and anthracene are therefore not

considered to pose a threat to the brook lamprey, s’hich could prevent the achievement of favorable

conservation status.

b relation to copper, it appears that the lamprey’s LC50 vabue for copper is 46 ig/l, and that the

measured values for Bygholm

are far from the stated LCo value for the lamprey. It is therefore

assessed that the presence of copper in the stream, neither under existing nor future conditions, will

pose a threat to the brook lamprey, which may prevent the maintenance of a favorable conservation

status for the hrouk lamprey.

Otter

to relation to the occurrence of utters, it appears from section

7.1.3

of the habitat impact assessment

that during the latest monitoring in

2017,

tracks/excrement from otters were found at Bygholm

Korup Bro immediately west of the project area, and that according to the baseline analysis

2022-2027

for habitat area

1-1236,

it is assessed that the species uses the area to a greater extent than illustrated by

the monitoring carried out in 2011-2012. Based on the nature of fhe area with watercourses and

undisturhed areas, it is also assessed to bea stable presenee of otters in the area.

It also appears that during a specific search carried ont in April

traces of otters were found, but no signs of breeding activity.

2021

in the planned road route, clear

It appears from the species in general that otters give birth to their young ina cave

iii

a reniote,

undisturbed lake or marsh area, and that the immediate area around the road route is grass)’ and open

without good opportunities for hiding.

On this basis, it has been assessed that the areas immediately east of the Natura

2000

area are flot

significant as a breeding area for otters, but that it is very likely that individuals move along the

streams and possibly roost in hiding by the streams.

It also appears from a possible impact during the constructioo phase that otters are relatively tolerant

of noise when they are at rest, but it is likely that any day-resting otters iii the area will prefer to move

to other parts of the territory while particularly noisy construction activities are carried out as framing

ofsheet piles or piles. It appears in extensiun uf this, since the area has not been assessed as suitable as

a breediog area, and since there are good upportunities for hiding both upstream and downstresm of

the project, it is assessed that short-term constrnction activities will nut cause a significant negative

impact on the population ofotters in the Natura

2000

the area.

It appears there will be a need to establish a passage for construction traffic over Hatting Bæk. Otters,

which travel aloog the stream, may therefure have to walk on land for a short distance doring the

construction phase. It appears this is nut considered to constitute a significant impact, as the

temporary construction activities will normally take place within normal worldng hoors duriog the day

and not doring the night, when otters actively forage in the streams snd where otters can therefore

pass the constniction site.

There is also a stable

occulTence of otters

in Bygholm

and a favorable conservation status for the

species in Jutland. Disturbances during the cunstnictiun phase of the project are not considered to

canse a negative impact un the consen-ation status of the otter population linked to Natura

2000 area

N236, Bygholm

Å.

b relation to the impact un utters during the operational phase, it appears that a road construction

over a stream can constitute serious obstacles for otters if good passage conditions have not been

established, which ensure that the otter can pass under the road along the stream. It appears that the

new road passes the river valley

a landscape bridge that is

130

m long and

m wide, and that the

three middle bridge spans are each approx.

m long with a clearaoce of at least 7 m. 11 is stated that

the landscape bridge’s width and height meet the minimum standards for a fauna passage that can be

used by cenids, and that the bridge also creates passage for many species from deer to invertebrates,

as well as ensuring a goud connectiou between the habitats and habitats of the animals

each side of

the road constniction.

b conclusion, it is assessed that the road cunstruction will

not cause a ban’ier effect on the populatiun

of otters in the Natura

2000 area, as goud passage conditions

for otters and other animals are ensured

under the road construction during the operational pbase, and that the project overall is not assessed

to hinder the minimum goud cunservatiun status uf utters un regional or national level.

Temporary groundwater lowering

It appears from section 3.6.6 of the habitat impact assessment that a temporary groundwater lowering

must be made at four of the landscape bridges aix support poiots ifl coooection with the construction

of the bridge’s foundations and pillars. Groundwater is lowered into the construction pits individoally,

which means that the four construction pits are not pumped at the same time. Groundwater must be

lowered for tip to four weeks per construction pit, thus a total of op to t6 weeks in the coostruction

period. tt is estimated that the total extent of groundwater lowering is 75,280 3, and asa worst case

scenario so% has been added, so that the calculation is based on a total water volume of 8,ooo m3. A

conservative model caiculation has been made of the distribution of groundwater lowering around the

construction pits, which can be seen in figures 3-7 of the habitat impact assessmeot. The calculatioos

shoit’ that the spread of the sioking funnels is limited to the proximity of the coustruction pits, and it

will be especially to the north and south, where the greatest spread is up to

120

m. The sinldog fimnels

will not extend into the Natura

2000

area.

Tt appears from section

7.1

of the habitat impact assessment that the impact from the temporary

groundwater lowering of the grouisdwater table, which must be carried out in connection with the

coflstruction of the landscape bridge, is assessed to be very small and completely insignificant for the

area’s groundwater interests, including their vulnerability and water quality. The impact on local

natural areas is also assessed to be very small. Tt also appears that no impact is seen in habitat area

11236,

and that it is considered to be excluded that groundwater-dependent uature types in the habitat

area as well as stream-dependent nature types and species can in any way be negatively affected by the

groundwater lowering.

Annex TV snecies of bats

Survevs

Tt appears from section 5.4 of the habitat impact assessment that, in connection with the early

plauning of the road project, a

review

of existing data as well as supplementary field surveys in the

area around the road route has been carried out.

also appears that, due to uncertaiuty about

individual habitat types and the road’s potential impact on bats, additional studies have subsequently

been carried out. Among other things, a search has been carried out for Annex TV species, including

bats in summer and autumn

2020

and spring

2021

respectively.

It appears from section

5.4.1

of the habitat impact assessment that, in connection with the study, a

study area has been defined as a

200

m buffer zone around the two proposed alternative aliguments.

The area’s bats have been investigated in accordance

with

the Road Directorate’s guidance on “Bats

and major roads”, and automatic bat detectors have been set up at important structures for bats over

three periods in

2020

and

2021.

It appears that the three periods have been inteuded to cover the bats’

breediug period, the period in the autumn, when the bats are typically mure mobile, and the spring,

when the bats can potentially seek out other areas than in the autumn.

also appears that in alI

periods the automatic detectors are supplemeuted

with

a mauual review of the area with a hand-held

bat detector.

Tt appears from the note for the hat mapping dated June

202t,

which is included as appendix 7 to the

hahitat impact assessment and the environmental impact report, that the three hat studies were

carried out respectively from July s to July 4, and from August

to August

23 ifl 2020

aud from 7

May to t6 May

202t.

It appears from section

5.4.2

of the habitat impact assessment that the hat mapping ahowed that there

is geuerally a high activity of hats in the study area. A total ofuine speciel ofhata have been recorded,

and there is particularly high activity around Bygholm

and the surrounding meadows, which sene as

a foraging area for a number of speciea ofbats.

It also appears from section 8.1 of the habitat impact assessment that the mapping showed that the

study area at Gronhøjvej and Stampemollevej west of the project area as well as Bygholm

contains

significant bat values, and that a breeding and roosting area west of Grenhojvej for pipistrelle hals and

pygmy hata, and possibly also brown hats, has been found and troll hats. It appeara that the specific

area is a steep south-facing slope with many older deciduons trees, including some oak trees with

craeks and hollows, which make them suitable as breeding and roosting trees for bats, and that a large

part of the hats from here are estimated to forage below in the river valley above the extensively

cultivated nseadows around Bygholm

Å.

The breeding and roosting area is drawn on figure

8-2

in the

habitat impaet assessment.

Tt also appears that the meadows are also cousidered to be an important foraging area for southern

bats, and that the stream itself is an important foraging area for water bats.

Tables 8-1, 8-2 and 8-3 of the habitat impact assessment show the activity levels, and they indicate the

average recordings per species per night in the three study periods. Figure 8-i shows an overview uf

the relative distribution ofbat activity in the stody period in mid-August

2020

and the location of

automatic bat detectors. During the investigations, nine different species of bats were reeorded

southern, water, pond, brown, troll, pipistrelle, pygmy and lung-eared bats.

—

It also appears from seetion 8.s of the habitat impact asseasment that at the eastern end of the

meadows there are several wooded slopes with potential breeding and roosting trees for bats, and that

these have not been mapped more precisely. The associated forest edges and the stream are considered

to cnnstitute signifleant guide lines, and there are several smaller guide lines that lead dowri towards

the stream and the meadows. It also appears that in both summer mapping periods, many individuals

of several species of bat were observed foraging over the meadows, and that the meadows are

considered to cunstitute a significant foraging area for the local hats, also upstream and downstream of

the study area.

It also appears from section

8.4.1

of the habitat impact assessment that there are a few

(2-4)

extinct

alder trees with wondpecker holes along Bygholm

in the alignment of the road, and that these have

been inspected with a view to ascertaining whether there were roosting hals. It appears that during the

manual reviews no bats have been obsened entering or leaving, but that it cannot he rejected on that

basis that the trees are used periodically for daytime roosting by, for example, water hals. It also

appears that the trees in question, however, have a size and condition that makes them considered

unlikely aa a hreeding place and winter roost for bats.

II has been assessed that the removal of the trees in question during the construction phase will not

affect the ecological functionality of hreeding and roosting areas for the species of hals in the area.

These are

2-4

suboptimal trees, where locally in the river valley there are many and better stutahle

breeding and ronsting trees for bats, as stated in the mapping note of June

2021.

It also appears that, in order to ensure that the ecolugical functionality is maintained at the same level

as before, three bal boxes are set tip fur each of the trees mentioned above that are removed. The bal

boxes must be of a type that has been shown, among other things, to accommodate water hats and

must he set op in relative proximity to Bygholm

Å,

either on existing trees or on the bridge

constniction. The boxes set tip must be functiunal before the trees are felled, nr alternatively, if the

trees are felled in the winter rnonths, the boxes must be functional before next April.

The road courae and the landscaye bridge

It appears from section

8.4.1

of the habitat impact asaessment that the establishment of new road

routea can lead to the destruction ofbreeding and roosting areas for bats. Et also appeara that changed

traffic patterns and new road routea ifl areas with high bat activity can potentially conatitute barriers

for hata in relation to accesa to foraging areas, affect the species’ ability to spread in the landscape,

deteriorate the quality of the area for bats and pose a risk of traffic-ldlled individuals.

It also appears from the road’s impact oa bats during the operational phase that the extent of the

specific road’s impact largely depends on the design of the road, the permitted speed and the location

of the road in the landscape in relation to gnide lines and important areas for hals. The connecting

road in the specific project crosses Bygholm

Ä,

which is considered to be an important control line,

and the road goes across Bygholm Ådal, which is considered to be an important foraging site for

several of the local bats.

Et appears from section

3.5.1

of the habitat impact assessment that the road construction’s crossing of

the Bygholm Ådal is constructed as a landscape bridge in accordance with the Road Directorate’s road

mIe on fauna passages, as the ådaleis forms an important ecological corridor in the landscape.[i6j Et

also appears that the bridge is designed so that it meets the minimum reqiiirements for high landscape

bridgea of the type AiL (wet), which cater for the passage of cervids and deer. The clearance under the

three middle spans of the landscape bridge is 7-9 m, which is sufficient for a large part of the hat

species to prefer to fly under the road. Et appears that the landscape bridge’s three middle spans are

each approx.

m long.

Et also appears that the landscape bridge will be established wilhout lighting, and that, in accordance

with the road directorate’s guidance, fixed matted screens will be installed on the sides of the bridge

for the sake of birds and hals in the river valley and pmotective planting along the sides on the edge of

the river valley.

Tt also appears from section 8.4.1 of the habitat impact assessment that the shielding has a height of

1.6 m above the finished road, and that the shieldiag will prevent hals from flying low over the road

with the associated risk of traffic fatalities. The hals that forage at the height of the bridge above the

river valley fly to a lesser extent attached to gnide lines and at a distance from fixed structurea, and

they will thus cross the road at a height beyoad the bridge’s shielding, and thus above normal car

traffic. En relation to tmucks and huses, which are signiflcantly higher than 1.6 m, the shielding

contributes to the hals having a higher approach height and Ihereby minimizes the risk of traffic

fatalities.

Et also appears from the habilal impact assessnient that the planting along the road will ftinction as a

gnide line that can lead low-flying species on the edge of the river valley down mIo the river valley,

where there is a passage under the bridge, and that the plantiag

will

also lift crossing hat individuals

over the road at a height, which minimizes the risk of traffic falalities. Et appears that the planting is

established an that it becomes dense and reaches a height of at least

2.5 m, wherehy it

becomes

functional to gnide hats

down

the river valley or “lift” hals that cross the road. The planting is initially

supplemented

with a wire

fence

with

a minimuns heighl of

2.5

m, which must he flnely meshed so that

hals cannot pass through the fence, cf. the Road Directorale’s guidance on fauna passage.

On the north side uf Bygholm

Å,

the planting on bolh sides of the road musl extend up to

130

m from

the road bridge, and on the south side the planting on hoth sides of the road mitst extend tip to

too m

from the road bridge.

Table 8-4 of the hahitat impact assessment contains an overview of the hat species in the area and

their relevant hehavinr in relatinn to the impaet from roads. In addition, the table contains a general

assessment of the species vulnerability to impact from mads in general.

Noise and lieht nuisance during the onerating nhase

In relation to noise and light nuisance during the operational phase, it appears from section

3.5.1

the habitat impact assessment that the sereens on the sides of the bridge limit the effects of light and

visual disturbance from road traffic. tn addition, the screens are made of frosted glass, which does not

reflect the light. In addition, it appears from section

3.7.2

of the hahitat impact assessment that road

Iighting will not be established on the stretch.

It also appears from section 8.4.1 of the hahitat impact assessment in relation to the impact

hats

during the operational phase that noise and sound pollution can impair the quality of habitats along

mads. Reference is made to two foreign studies which indicate that a reduced incidence of bats can be

seen more than one kilometer from a busy road, bnt that the effects have however been seen on mads

with far more traffic than the cnrrent road. The planting around the road and screens on the road

bridge are assessed to reduce this potential impact significantly, to an extent where it is not assessed to

impair foraging and passage opportunities in the river valley itself. It is likely that the area

immediately along the road will become less attractive to the bats in the area, but this is not assessed

to be to an extent that will sigaificantly affect the ecological functionality nr the populations in the

area.

Assessment of imnact on hats

It is assessed in section

8.4.1

of the habitat impact assessment that the road and the landscape bridge

xviii not cause a deterioration of the ecological functionalitv of breeding and roosting areas for ali nf the

nine registered speciel of bats in the study area. The pianting around the road and screens on the road

bridge will reduce the potential impact significantly to an extent where it is not assessed to impair

foraging and passage opportnnities in the rivcr valley itself. It follows from this that it is likely that the

area immediately along the road xviii become less attractive for the bats in the area, but that this is not

assessed to be of an extent that will significantly affect the ecological functionality or the populations

in the area.

It appears in relation to water bats that Bygholm

is assessed to constitute an important stnicture asa

gnide line and foraging site. The species stays low and closeiy attached to the stream itseif and the

areas ciose around. With the planned road course and the landscape bridge, there is not assessed to be

an increased risk of traffic fatalities nr negative impact due to the barrier effect, and thereby there is

also not assessed to be an impact on the ecnlogical functionality of breeding and runsting areas for

water bats.

tn relation to pond bats, it appears that Bygholm

is a potential guide line for the species, and that the

species bas the same behavior as water bats and forages low over water surfaces and flies closely

associated with gnide lines snch as streams. The road is not assessed to pose a risk of road kiIl nf the

species nr to sffect it through a barrier effect, as individuals will follow the stream unimpeded and pass

under the landscape bridge. Furthermore, in connectinn with the surveys in the area, there are only a

feix’ scattered records of the speciel in the spring and autumn. Tt has been assessed that the road will

nnt impair the ecological functinnaiit of breeding and roosting areas for pond bats.

In relation to pipistrelie and pygmy bats, it appears that they nccur commonly in the area with

breeding sites west nf the alignment. Pipistrel bats are mainly recorded foraging relstively low and

ciose along forest edges snd leeward fences west of the slignmeot and partly oot over the open river

valley, althoogh to a rnnch lesser extent. There is no impact on the primary structures with which the

species has been observed. Dwarfhats occur more evenly distriboted in the area. The road lies in the

upper part of the typical foraging height of hoth species. The majority of both species crossings of the

fscility ivill take place nnder the landscape bridge. The fencing along the road will help the hats that

had to cross the road to he forced higher above the roadway, thereby redocing the risk ofcollision

considerably. It has been assessed that the area is horne to large popolations, and that individual

traffic fatalities will therefore not affect the population negatively. The road is not assessed to cause s

deterioration of the ecological functionality of breeding and roosting areas for pipistrelle or pygmy

hats.

In relation to the long-eared hat, it sppears that the species may be vulnerable to new road

constructions, but that the area does not constitute a significant breeding or foraging location for the

species, as there are only very few recordings of it, and that the species is also rarely seen oot in open

land areas. It has been assessed that the road ;ll not impair the ecological fonctionality ofbreeding

and roosting areas for the loog-eared hat, as the species only has a very rare and sporadic connection

to the area, as stroctores of importance to the species xsill not be affected, and as it is not assessed that

he a significantly increased risk of road MII for the species.

tt appears in relation to sonthern bats and troll bats that these species typically fly at mediom altitodes

between

2-20

m and that they are to a lesser extent closely linked to landscape guidance lines. Thus,

they are at less risk of being affected by the course of the road and traffic. It appears that the road is at

a height at which sonthern bats and troll bats typically forage, and that when crossing the road bridge

the species will pass both nnder and over the road. Tt has been assessed that the screening along the

road helps to force these species to pass the roadway at a greater height and minimize the risk of traffic

fatalities, and that a smaller number of the species will possibly alan cross onder the road out into the

open river valley. It is therefore assessed that the road will not lead to a deterioration of the ecological

fonctionality of breeding and roosting areas for soothern hats or troll bats.

It appears in relation to brown bats and long-tailed bats that it has been assessed that the species will

not be affected doring the operational phase, as these species nnrmally fly high and withnnt a

particularly close connection to control lines. It is estimated that the species will generally be able to

pass the road withnut problems. The road is therefnre not considered to cause a deterioration of the

ecological functionality of breeding and roosting areas for brown bats and bats.

Annex tV snecies large water salamander and pointed frog

It appears from sectinn

5.4.1

of the habitat impact assessment that there have been no recorded fods

of large newts or pointed frogs in the immediate vicinity of the stod3’ area, bot that there are potential

habitats.

Tt also appears that large water salamanders and pointed frogs have been mapped in the stndy area in

the sommer of

2020

by searching for tadpoles in soitable habitats in accordance with the technical

instrnctions for monitnring amphihians.[17]

Tt also appears from sectinn 8.2 nf the habitat impact assessment that large neivts and pointed frogs

were not fnond within the stody area in connection with the field sorvey carried oot in

2020,

bot that a

single large newt was foond at the end of snmmer

2021

ons nearhy property, probably on its way to

roost and that the nearest knowu find is also more than km from the study area.

It also appears from section

8.4.2

of the habitat impact assessment that constroction works and work

areas do not affect known breeding and roosting areas for large water salamanders and sharp-nosed

froga, bot that the road in the operational phase may constitute a potential negative impact for the

species if it lies hetween breeding and roosting areas

due to an increased mortality during migration

and due to harrier effect. Tt also appears that the establishment of a permanent toad fence along both

sides of the road on the north side of the Bygholm

will prevent traffic fatalities and lead migrating

newts down into the river valley, where there is safe passage under the road bridge.

It has been assessed in the habitat impact assessment that the project, with the establishment of the

described mitigation measore, will not impair the ecological functiooality of breeding and hreeding

areas for large water salamanders and sharp-nosed frogs.

2.3.5

The environmental impaet report

Natura

2000

It appears from section

11.2

of the environmental impact report that the alignment of the road is

positioned so the Natura

2000

area,

H236

Bygholm Ådal, is not directly affected, but the possible

indirect impact is investigated in the Natura

2000

hahitat impact assessmeot. The project area is

located approx.

m east of the Natura

2000

area.

Tt appears from seetion

11.2.6

that the Natura

2000

area has been speciafly designated to protect the

occorrences of grassland on calcareous sobstrates, spnng meadows, sedges and streams, as well as the

associated species otter, brook lamprey and whorl snails. tn the Natura

2000

impact assessment, it is

the grassland on calcareous substrates habitat and the otter and brook lamprey speeies that have been

assessed as relevant in relation to a potential impact of the project. Other occurrences of species and

habitat natnre types on the basis of the designation are more than

500

m from the road route, and in

the Natura

2000

habitat impact assessment it was not found that there woold be significant potential

impacts on these.

In relation to the grassiand habitat, it has been assessed that the estahlishment of the road will not

lead to increased nitrogen deposition to an extent that will prevent the development of hahitat habitat

types on the nearest areas in the Natora

2000

area.

In relation to the brook lamprey, it has heen assessed that discharge from the rainwater hasins may in

certain cases cause local fluctuations in oxygen concentration immediately downstream of the

discharge points, where the oxygen level in the rainwater basins may be low. 1-towever, it is assessed

that the impact siIl not be significant for the Natora

2000

area’s population of brook lampreys, as this

is not a breeding area, and as any impact is made op of isolated eveots, which entail a potential local

and short-term impact that is reversible within a short period, ootside the Natora

2000

area.

In relation to otters, it has been assessed that the road constroction will not eaose a significant barrier

effect on the Natora

2000

area’s popolation of otters, as good passage conditions for otters and other

animals are ensored during the road construction doring the operational phase.

For a more detailed review of the Natura

2000

area, the environmental impact report refers to the

Natura

2000

habitat impact assessment in the report’s appendix 7.

Anoendix IV soecies

It appears from section

11.2.7

of the environmental impact report that there are potentially suitahie

hahitats aroond the road roote for species of bats, field lizards aod the amphibiao species pointed frog,

large newt and beach toad, ali of which are Annex IV species and which may be sensitive to effects of

new traffic facilities. Posaibie impacts inciode road Idils, barrier effects and fragmentation. The

mentioned species are therefore searched for doring the field sorveys in

2020

and

2021.

Tt appears jo relation to large water salamanders that it is estimated that jt is likely that the species

occors hreedjog jo one of the rjver valley’s many waterholes. Based on the asceots jo

2020,

the two

waterholes are not assessed as sojtable breeding waterholes for large water salamanders, bot it caooot

he denied that they have occurred breeding jo

2021.

There are no known occorrences of field lizard, pointed frog or beach toad near the roote of the road,

despite searching for potentially soitable habjtats

ill 2020.

b relation to bats, jt appears that the mapping jo

2020

and

2021

showed that the area contajns

significant hat values, both jo the form of sjgnjficant foragjng areal and breedjng and roosting areas. A

breeding and roosting area has been found west of the project for pipistrelle bats and pygmy bats, and

possibly also brown and troll bats. A barge proportion of the hats from here are estjmated to forage

down jo the rjver valley over the extensively managed meadows around Bygholm

Å.

There are a few defonct alder trees jo the aljgnment of the road on the bank of Bygholm

Å,

whjch could

potentially be a breeding and roosting area for hats. The sjze and natore of the trees make them

unsujtahie for roostjng jo the wjnter, and on that basis the trees are assessed as not sujtahie as

hreedjng and roostjng areas for bats.

For a more thorough revjew, the environmental jmpact assesament refers to the Natura

2000

habitat

jmpact assessment jn the report’s appendix 7 and the data note for the hat mapping in appendix 9.

Other nature

Tt appears from aection

11.2.4

of the environmental jmpact report that Bygholm Ådal ja subject to a

wetlands declaratjon from

2014,

whjch stjpulatea that the area most permanently remajo as a wetland.

The declaratjon also contains a number of restrjctjons stating that the covered areas may not he

cuitjvated, converted, fertjljzed or sprayed, and that ditches and drama may not he estabbjshed or

majntajned without prjor agreement with Horsens Municipality. Tt appears that the Danjsh Agency for

Agricolture has been consulted in connectjon with an offlcjal hearing prior to the enironmental

impact assessment, hul that the Agency had no comments on the project, as only Horsens Municipality

ja entitled to prosecutjon accordjng to the provisions of the declaration. The establishment of the

connecting road and the landscape bridge over the river valley js not consjdered to be jn breach of the

declaratjon, as there will contjnue to he a wetland under the landscape bridge.

It also appears from sectjon

11.2.7

of the environmental impact report that the nearest find of a

protected species that ja not an Annex

specjes ja an occurrence of thmn-stemmed cuckoo grass from

a ljmestone meadow west of Gronhojvej. During the inspections jo

2020,

fry of the hutt-nosed frog

were also observed jo a waterhole jo the Natura

2000

area west of Gronhøjvej.

Nojse during the construction ohase

It appears from sectjon 4.6.6 of the environmental impact report that, jo connectjon with the

executjon offoundations near Bygholm

and Hatting Bæk, there is a need to frame sheet pile walls for

conatructjon pjts around the foundations.

Tt also appears from section

7.3.1

that the noise from the ramming ofsheet piles or piles ssill sisoally he

experienced as particolarly annoying, as it is impolse noise. There are two homes located

200

m from

the impact site, and a simple noise calcolation of the noise propagation has been made on that basis. Tt

shows that noise levels of over

dB(A) can he expected more than

300-400

m from the impact site.

The doration of the framing work is estimated to last

days, and the constroction work is only carried

out during the davtime hetween

07.00

and i8.00 on weekdays, as prescribed in Horsens

Municipality’s regulations for boilding and constniction work.

Ii has also been assessed that there is no need for significant mitigatinn measores in connection with

construction noise.

Noise durine the operating ohase

lt appears from the environmental impact report, section

7.1.3,

that noise calculations have been

carried nut for the operational phase in accordance with the Danish Environmental Protection

Agency’s guidance on noise from roads.[i8] In addition, speeds have been entered on the mads

according to the monicipality’s traffic model, and the traffic coont from Vrondingvej is projected for

2030.

It also appears that a noise propagation map has been prepared for the reference scenario, figure

7-1,

which involves a projection of the traffic to

2030

with the expected expansion of the bosiness area

VEGA. In this scenario, the connecting road north ofVrendingvej is inclnded. In addition, a noise

propagation map has been prepared for the projected connection road, figure

7-2,

where the traffic

figures, as in the reference scenarin, are projected with planned orban development until

2030.

It appears from the noise propagation map for the reference scenario in Figure

7-1

that the noise level

at the two potential breeding and roosting areas for bats east of the road is between 48-53 dB(A). From

the noise propagation map for the projected connecting road in figore

7-2,

it appears that the noise

leveT at the northernmost potential breeding and ronsting area for bats east of the connecting road will

lie partly within the noise level 63-68 dB(A) and 58-63 dB(A) ,and that the soothernmost potential

breeding and resting area east of the road will lie within the noise level of 53-58 dB(A).

Copper

It appears, among other things, from the environmental impact reports section 4.7.3

discharge

from the rainwater basins, that the discharge of notrients, envirnnmentally hazardoos sobstances, and

oxygen-consoming and sospended substances from the plant’s rainwater basins is calcolated on the

basis of standard concentrations on ootlet water from rainwater basins, assoming that the entire

annual discharge is cleaned throogh the basins.

appears from table 4-5 in the environmental impact

report that the calcolated average sobstance concentration of copper in the discharge water from road

basins is calcolated to be 0.028 mg/I. It appears that the figore comes from the Handbook poblished

by Vejregelgroppen Afvanding b

2020,[19]

and that it is sopplemented with some data from

Faktablad on the dimensioning of wet rainwater basins.[2o] The calcolation of material qoantities that

Bygholm

will be bordened with from the planned new road section is given in Table 4-6, where it

appears that the total contribotion of copper will be

0.39

kg/year.

Tt appears from the environmental impact report section

50.3.2

on harmful sobstances that the

environmental quality reqoirement for copper in water is 1.66 ig/l, and that data from the basic

analysis

2021-2027

show an excess of this sobstance in Bygholm

Å,

as the concentration is

1.717

pg/ I.

Forthermore, it appears that lnss nf copper from agricoltoral land constitutes a significant soorce of

the presence of copper in the Danish aqoatic environmeot. According to stodies carried out by DCE,

the environmental quality reqoirement has been exceeded for 67% not of

investigated measuring

stations, which is attributed to an increase in the content of copper in Danish agricultural land.[21]

The above-mentioned report from DCE indicates that by far the largest source of copper in Danish

soils primarily comes from the application of pig manure, which makes np 80-90%. Although there is

knowiedge that there is a certain content of copper in brake pads, it must be expected that the reason

for exceeding the environmental quality requirement is primarily due to agriculture.

Furthermore, it appears that it must he assumed that the road water from the new road will be

retained in the basins to a greater extent than is the case with the current road construction

(Grønhøjvej/Stampemøllevej), since the water in fntnre will he led through basins dimensioned

according to the best available technology, and the water is thus both cleaned and delayed. This also

results in an increase in the residence time, which means some significant degradation of snbstances

such as eg. nonylphenol, which has a half-life of approx. a month in water. On the other hand,

according to the report, the amount of traffic in the area will increase, and the amount of road water

and snbstances will increase, among other things, due to the greater drainage of the roadway directly

to the hasin. II is to he expected, however, that the increased cleaning will still mean a smaller

discharge ofthis.

In relation to the importance fur Bygholm

Å,

it also appears from the environmental impact report that

there is a known mean concentration for copper in the outlet water from the rainwater basins.[22] If

the concentration for copper in table 4-5 is maintained as background concentration in Bygholm

Å,

the

resulting concentration of copper at an average water flow uf i,600 lis in Bygholm

and a discharge of

2.1

ifs from the basins will result ina concentration of copper in Bygholm

1.751

jig/l at a discharge

concentration of 28 ig/l total copper. It is a worst-case scenario, which assumes that ali the copper in

the uutlet water contributes to the dissolved fraction of the copper in Bygholm

Å.

The actual resulting

concentration in Bygholm

will be less than

1.751

pg/l, as part of the copper will be bound in non- or

hardly-soluble compounds. Although an increase from

1.717

ig/l to less than

1.751

pg/l is a very

limited impact, the limit value has been exceeded.

Furthermore, it appears from the environmental impact report that, according to § 8, subsection 3, as

a starting point, an increased supply of copper cannot be permitted when the environmental quality

requirement has already been exceeded for copper, unless other sources are minimized or a concrete

assessment shows that the discharge will not have any significance in practice.

[23]

b this regard,

reference is made to the guidance fur the action order, from which it is evident, among other things,

that the decision on an additional addition of harmful substances is based on a very specific

assessment of the significance of the impact (significance) for the condition of the water area.

[24]

Furthermore, it appears from the environmental impact report that the very small additional impact of

copper, which here is

0.034

ig/l in an average situation corresponding to a

impact on the limit

value, will not he decisive for whether the objectives are achieved on the ecological parameters (flsh,

small animals and plants), which must also be assessed under the ecolugical condition. Furthermore, it

appears that the impact is so small that it can be defined as not significant in accordance with the limit

for additional introduction of harmful substances of

s%,

which appears in the Danish Environmental

Protection Agency’s FAQ on the discharge of harmfnl substances.

[25]

Overall, it is assessed in the environmental impact report that the runoif from the rainwater basins to

Bygholm

does not lead to a deterioration of the condition of the surface water area or hinder the

folfillment of the established envirunmental targets.

Alternatives

It appears from section

3.1.1

of the environmental impact report that the selectcd proposal (the main

proposal) and reference scenarios must he examined in the environmental impact report.

The main proposal included in the environmental assessment is the scenario in whieh the reqoested

permit is grauted. The only alternative thst will be incloded as a basis for comparison for the maifl

proposal in the environmental assessment is the refereflce scenario, where permissiofl for the main

proposal is flot granted aod the project cannot be realized.

It appears from seetioo

3.2

of the environmental impact report that the refereflce seenario corresponds

to the existing enviroomental conditiofis (the area’s corrent envirofimental status) afld the probable

development of the area if the project is flot earried out. If the road project is oot realized, the correot

land use will continue unchauged.

b the reference scenario, the probable development of the traffic cofiditiofis is projected

until 2030.

The projection inciudes the expansion of the VEGA business area, with e.g. the transport company

[Vi], as well as other planned urban development until

2030,

incloding urban development io Lund. tt

inciudes expansion of the harbour, reconstruetion of the Towo Hall Campus aod Norrestrafid. Ifl

additioo, New Hattingvej and Ringvej Syd, stage

have been eoostrueted.

It also appears from section 3.3 of the environmental impaet report on the selection of alternatives

that, prior to the design of the applied road, three alternative routes in the area, proposed solutions

and 4, in additiofl to the selected project proposal, solution

have been assessed. In eonnection with

the public hearing at the start of the environmental impaet report, a number of eitizen proposals for

alternative solutions afld alignments have also been sobmitted, solution proposals 5, 6, 7, 8, 9,

and

ii.

The ten proposals and the applied aligoment appear in figure

3-1

of the environmental impact

report.

Eaeh proposed solution is deseribed in more detail in sections

3.3.1, 3.3.2

and 3.3.3 uf the

environmental impaet report, together with an iflitial assessment of their traffic effect with a focus ufl

aceessibility to the business area, relief from Ny Silkeborgvej-Silkeborgvej and the rest of the road

fletwork, as webb as an sssessmeflt of road safety and driving comfort in general. In addition, an overall

screefliflg of the impact of the individual proposals oo naturab conditions, the landseape and cultural

conditions has been carried out.

Sobution proposab 8 involves an upgrade of Silkeborgvej with flew intersections and expaflsion of the

section to four lanes, which will be able to handle traffic on the overall road fletwork at an acceptable

level towards the two ramp intersectiuns at motorway juflction 56a (Horsens V). The Swedish Ruads

Administration is the authority for the ramp junetions, which is why an extension is a state decision.

Horsens Municipality cannot therefore devebop these two intersections. It appears that the sobution

will result

ifl

reduced accessibility to the business area VEGA and the residential areas in Lund and the

Provstlufld area

The pruposed sobution has not been chusen, as it does not fulfill the project’s purpose uf increased

accessibility and rubustness, but on the cuntrary is assessed to worsen existing prubbems with

accessibility along Silkeborgvej and at several major intersectiuns on the approach ruads to Horsen’s

city centre.

The proposed solution has nut been chosen, as it does nut fulfill the project’s purpose of increased

accessibility and robustness, but un the contrary is assessed to worsen existing problems with

accessibility abong Silkeborgvej and at several major intersectiuns un the approach ruads to Horsen’s

city centre.

Solution proposal is involves an alignment that rons from motorwayjunction 6h (Horsens C) and

parallel to the motorway with connection to Vrondingvej. The man)’ sharp curves along the road’s

route do not make it possihle for modular vehicie trains to use the section, just as the desired speed of

80 km/h cannot be maintained on the section. In addition, the E45 motonvay is covered by a

road constrnction line, which is why the alignment had to he placed at least

m from the center line

of the motorway.

The proposed solution has not been selected, as the alignment does not provide the desired traffic

effects, neither in relation to the accessibility to the business area VEGA nor in relation to the trafik

relief of Silkeborgvej.

Mapping of protected nature has been carried out for the ares around lines

1, 2,

9 and

2020

and

and new areas with protected nature have been registered in this connection. The routes for the

other alignments have not been inspected, as Horsens Municipality has assessed that these alignments

will not have the desired traffic effect, and are therefore not realistic alternatives to the selected project

proposal.

2021,

2.4

Content of the complaint

Autisority disqualification

The complainant has stated that the Municipality of Horsens is incompetent according to Section

the Environmental Assessment Act in the specific case, as the approval and the concrete routing of the

connecting road is a prerequisite for a conditional purchase agreement with a logistics company in the

area. The municipality thus has a significant financial “private” interest in the sale itself, just as the

municipality has an interest in the sale being carried out, as it will increase investment and local johs

in the municipality, which is the primary purpose of establishing the road. There is therefore a lack of

authority on the part of the municipality, which is why the municipality cannot be the case-handling

authority for the EIA investigation and the impact of the connecting road on the environment in

Bygholm Ådal. The completed environmental studies should be rejected, and the impact on the

environment should be subject to a stricter assessment by the Environmental and Food Complaints

Board due to Horsens Municipality’s incompetence.

2.4.1

2.4.2

lmpact on the Natura

2000

area

The complainant has stated that the Natura

2000

hahitat impact assessment does not include several

relevant matters, including that the assessments are not sufficiently cuncretely formulated.

Furthermore, the conclusions are not sufficiently justified, and it is not sufficiently described why the

protected nature, including protected habitats and species, iill not he affected by the planned

connection road.

b addition, the complainants have stated that the habitat impact assessment rests on a deflcient

information base, as it does not relate to or has identifled ali aspects that may affect the conservation

objective for the Natura

2000

area. In this connection, the cumplainant has referred to the

precautionary principie, which means that any doubt must be given to nature and that the authority

has the hurden of proof to document the absence of harmful effects. Complainants have also pointed

uut that the protection of Natura

2000

areas also applies to activities outside the area, if the activity

can be expected to affect the area, ur if the activity can affect migratory speciel such as birds and flsh

when they move outside the Natura

2000

area.

The habitat impaet assessment therefore suffers from a legal deficiency and cannot form a basis for

approving the project, and the Environment and Food Complaints Board shoold therefore revoke the

Section

permit as invalid.

Semi-natural div grassland and scrubland facies on calcareous sobstratesComplainants have

questioned, in relation to Semi-natoral dry grassland and scrobland facies on caleareoos sobstrates,

whether the already existing impact with nitrogen disposal from Gronhojvej, which is immediately

next to the overdrive, has been taken into accoont. The complainant has stated that only nitrogen

deposition from the planned road appears to have been calcolated.

The complainant has also questioned whether the additional bad on the Natora

2000

area as a result

of traffic from other expansion of the business area has been taken into account.

Otter

Jo relation to otters, the complainant has stated that a temporary bridge is planoed to be established

doriog the coostniction phase over Hatting Bæk, which will disropt the movement ofotters, as otters

do oot swim onder bridges.

Brook lamyrey

b relation to the brook lamprey, the complaioant has referred to the fact that it appears from the

habitat impact assessmeot that there may bea very local and short-term impact

individual

individuals of the brook lamprey downstream of the discharge points for the facility’s rainwater basins,

particularly to relation to oxygeo and salt, but that this will not harm Natura

2000

area populatioo of

lamprey, as it is oot a breediog area. b this connectioo, the complainant has stated that the ådaleo

participated jo a wetlaod project in

2004

with Vejle Count3’, where, among other thiogs, spawning

grouods were created for the fish in several places io the stream and in the meander oext to the

planoed road.

The complaioant has also questiooed how it is ensured that the reinjection of groundwater, which to

the eomplainaot’s opinion is ochreous, which must be carried out during the constructioo phase, can

he earried out withoot risk ofaffecting the brook lamprev, which lives in the fresh water in the stream.

Based

this, the complaioaots have stated that the assessment of the impact on the lamprey in the

operation and construction phase is not sufficient, incbudiog that it is not sufficiently clarified whether

it is a breediog and resting area for the lamprey downstream from the Natura

2000

area.

Souree wealth scam snail and skewed scam soail

Complainants have stated in relation to the vertigo geyeri whorl snail and the crooked screw soail that

it appears from the habitat impaet assessment that no studies have been carried out on the vertigo

geyeri whorl snaib and the crooked screw snail. Jo this eoonection, the complainant refers to the fact

that the complainant’s advisor has registered additional alder-ash swamps in the route of the planoed

road, s’hich may coostitute a habitat area for the spring soail and the narrow-moothed whorb snail.

Groundwater boweriog

b addition, the complainant has stated that io the impact assessmeot,

further iovestigations have

been carried out into what effect the bowering of the groundwater in connectioo with the construction

of the coonecting road will have in ioteractioo with the significant permanent loweriog of the

groundwater, which most be carried out duriog the constructioo of the bogic coonectioo center north of

the coooectiog road. Nor has it been assessed what significance groundwater lowering in coooectioo

with the expaosion uf motorway E45 in interaetion with the project will have.

‘i

Complainants have also questioned how it can affect the well-being and spring flow ifthere is a delay

or if the water level is high during the 16-week period when the groundwater is being lowered.

In the complainant’s view, a sample that was mistakenly not examined should he inciuded in the

assessment in order to reach a correct conciusion.

2.4.3

Provision of the habitat impact asscssnsent

The complainant has also stated that the consultant who prepared the impact assessment for the road

connection is also a consoltant for the logistics company in the area lis coooection with the

construction of a logistics centre. On this hasis, the complainant has stated that the adviser in question

will not he able to appear as an impartial adviser, as there are far too many financial matters involved,

and as the adviser has, among other things, advised on traffic management from the logistics centre.

There will therefore never be sufficient confidence in the investigations and estimates carried out hy

the adviser.

Complainants have referred to the fact that the same does not apply to the habitat assessments as

under the Environmental Assessment Act, according to which it is the developer who prepares the

environmeistal impact report. b this connection, the complainants have referred to the fact that the

habitat regulations are hased on EU law, and that in the practice of the EU Court of Justice, where it

has been determined that the assessment according to the hahitat regulations is the responsibility of

the aothority.[261 The task should have been left to another impartial adviser with no separate

financial interests in the matter.

The complainant has also stated that the conchisions of the impact assessment have not been verified

and approved by a third party, as claimed by the municipality, as the municipality’s advisor and

external lawyer have only booked at the formal requirements for the impact assessment and not related

to the material content, including the investigations carried oot assessmeots and conclusions in the

impact assessment.

2.4.4

Annex IV speeies

The complainant has stated that the prepared assessment of Annex IV species is flawed and

insufficient, and that it also does not meet the reqnirements of the habitat order in relation to the

impact on bats and newts. Overall, there is not the necessary and required high degree of certainty that

the ongoing ecological functionality of the area, such as breeding and resting areas for Annex IV

species, will be abbe to be maintained by the construction ofa beavily trafficked connecting road.

Bat

b relation to bats, the complainant has referred to an appendix attached to the complaint, which the

complainant has had drawn tip by an adviser, which states that the distance from the road route to the

nearest potential breeding and roosting area for bats is 16-34 m and not 70-80 m, as stated by the

municipabity, wbereby the assessment of the road bridge’s impact on bats has not been carried mit on

the right basis. The complainant has also stated that this is an important breeding and roosting area

for bats, which is not mapped in the habitat impact assessment, and that the road will affect important

guide lines and result in the boss of some extinct alder trees, which must be assomed to be of

significant importance to the surrounding breeding and resting areas.

Furthermore, complainants have stated that it is not sufficient to only examine the hats in the limited

search field, which appears from the habitat impact assessment, as hats can move tip to

km per

hour. day.

to addition, eomplaiots in relation to the operation phase have stated that replanting as a mitigatioo

measore is oot sufficient to maintain the ecological functionality of the hat sites, as it si1l take maoy

years for the trees to grow’ tall. Forthermore, it is oot enough that a fauna passage has been made

according to the hest possible technique, as this does oot say anything about whether damage occurs.

The complainaot has referred to the fact that in the hahitat impact assessmeot it has been noted that

higher screens have nat been chosen, as this woold trap bats over the road between the screens.

The complainaot has also stated that the bridge is

m ;vide, and that it appears from the literature

that hop-overs are probably only nsable if the distance between the tree crowns is a maximum of 5 m.

Furthermore, there is insofficient knowledge aboot the effect of the mitigation measures, including io

relation to for screens and hop-overs.

The complainant has also stated that it is contrary to the habitat directive that mitigation measures

have been incioded, as they can only be taken into account in a deviation case. b this connection, the

complainant has referred to the practice of the European Court ofJostice.[27] There are also

alternative solotions an the road route that should have been choseo instead of using mitigation

measures.

to addition, the complainant has requested the scientific basis for the assessmeot in the habitat impact

assessment that the road in the operational phase will only make the area immediately along the road

less attractive for bats, and that this will not be to an extent that will significantly affect the ecological

functionality ar the populations in the area.

The complainant has also referred to the noise calcolations that have been made and stated that there

will be a very strong noise impact dai-ing the operational phase along the entire road and into the

potential breeding and roosting area for bats, which is not b accordance with the precantionary

principle in relation to Annex IV species. In this connectioo, the complainants have referred to the fact

that it appears from an English study that bats usually avoid areas with large roads for op to

km,

and that this is a road between two breeding and roosting areas respectivelv approx.

50-75

m and

250-

300 m from the road. Complainants have also stated that the establishment of piles will affect Annex

IV species in the river valley, incbuding bats, doring the construction phase with noise and

disturbances. Complainants have also questioned whether, in connection with bowering the

groondwater, there will be a noise impact at night which could affect bats.

Laree water salamander

In relation to the large newt, the complainant stated that it was found cbose to the alignment of the

road and in the areas involved in the construction work. Tt cannut be assessed that large water

salamanders are not affected when a single adult individual has just been found in the barn an a

nearby property, which in the habitat impact assessment is assessed to be

its way to rest.

The complainant has also stated that it has nat been assessed whether the road’s route ar construction

work may affect breeding or resting areas for large new-ts in the area, and that no further investigations

were carried out beyond the sorvey in the sommer of

2020,

even thuogh large new-ts were later

documented in the area. Based on the above, the complainaot has stated that it can be rejected that the

investigations and assessments carried oot remove any doobt that large water salamanders are

affected by the bypass.

Otter

‘

;,:,

•:T

-,.::

In relation to otters, the complainant has stated that a temporary bridge is planned to he established

during the constrnction phase over Hatting Bæk, whieh will disnipt the movement of otters, as otters

do not swim under a bridge.

Pointed seed

The complainant has stated that a pointed-nosed frog was observed on a nearby property in Angust

2021

and that it does not appear from the environmental impact report that the species was obsened.

tn this connection, the complainant has stated that it cannot be ensured that habitats for the sharp

nosed seed are not damaged or destroyed when the hahitats have not been mapped.

2.4.5

Othcr nature

The complainant has stated that barn owis have been observed at three surroundiog addresses, and

asks whether it has been investigated in more detail what significance the project may have for barn

owls.

Complainants have stated that at the base of several trees along Bygholm

there are populations of

the moss species buttieaf hair star.

The complainant has stated that a short-nosecl frog was observed on a nearby property in August

and that it does not appear from the environmental impaet report that the species was observed.

2021

Complainants have also questioned why no further investigation has been

carried

out for cuckoo herb,

when it has previonsly been registered in Vejle County.

2.4.6 Alternatives

The complainant has stated that there has not been a real alternative to the intended route, and that

the route in question has been agreed from the beginning between the Municipality of Horsens and the

logistics company. The complainant has referred to the faet that an intersection had been established

on Vrondingvej before the impact assessment was prepared.

The complainant has also stated that the rejection of the alternative routes is not based on a natural

factual basis, but solely on a desire to achieve the direct access to the logisties center for optimal

operation. In the complainant’s

view,

the existing Silkeborgvej, solution proposal 8, will be able to

handle traffic satisfactorily, just as solution proposal

will be gentler on the natural and landseape

experience in Bygholm Ådal. Solution proposal

should have been investigated more elosely, as it is a

realistic proposal from the public.

Detennination of terms

The complainant has also stated that there is a lack of a description of ali the project’s characteristics

and the measures that are intended to be taken to avoid, prevent ur limit and, if possible, nentralize

significant harmftil effeets on the environment, which the develuper must implement, and any

monitoring measnres, ef. the Environmental Aasessment Act Seetion

27,

subseetion

2.4.7

The cumplainant bas also stated that there is no reqnirement in the §

permit that the lead planting

must consist of non-insect pollinating and fruit-bearing shrubs and trees to avoid inseets being

attracted, which is otherwise assumed in the habitat impaet assessment,

2.4.8 Olier complaint.s

The complainant has stated that the project is in breach of a registered easement, which stipulates that

the project area must permanently remain as a wetland. The complainant does not helieve that it

makes sense to allow a negative impact on the area when there is this wetlands declaration for the

area. Complainants have also referred to the fact that Horsens Municipality cannot restrict the wetland

area.

The complainant has also stated that it is not necessary for a new connecting road to be established, as

the Roads Directorate has stated that traffic in the area will be ahie to flow unhindered in a nnmber of

years, regardless of whether the connecting road is estahlished.

2.5

Itorsens Municipality’s coniments on the coniplaint

Horsens Municipality has stibmitted comments to the complaint on 28 March

i8 November

2022.

2022,4

July

2022

and

2.5.1 Authority disqualification

Horsens Mnnicipality has noted that, in the specific case, the municipality is both the land seller,

developer and authority in relation to the road connection. tt is not possihle to avoid this doal role, as

the municipality is, among other things, granted aothority by the Environmental Assessment Act.

Substitution cannot take place, as one municipal council cannot be replaced by another. The

municipality has therefore taken a number of measures to ensore that the authority’s competence does

not influence the decision by having organized itseif in the case in a way that ensures handling of

conflicts of interest and honors the requirements of Section

of the Environmental Assessment Act

and Section

of the Environmental Assessment Execotive Order.[28]

It also appears that in relation to the handling of the road project, the monicipality has had a

functional division, which has been carried otit tip to the level of mnnicipal director, after which there

is an authority track and a developer track within the mnnicipality.

Tt appears that the authority track most issue the relevant permits for the project, and that the track

includes planners, nature and environmental professionals as well as constniction case handlers. The

track is further divided into an aothority part relating to the planning process related to the monicipal

plan supplement and an authority part relating to the specific project and the issuing of the necessary

permits in that connection.

Tt appears that the developer track inclodes constructors and engineers as far as the construction and

execution of the concrete road project is concerned, as well as the preparation of environmental impact

assessments etc. for the project.

Tt also appears that stricter assessments have been made with regard to the assessments, permits and

approvals related to the road constroction in question, which Horsens Municipality as an authority has

carried out and issoed. This has resulted in some very comprehensive assessments, justifications and

stricter conditions in decisions issued by Horsens Municipality as anthority for the road project to

Horsens Monicipality as developer.

Horsens Monicipality has alsn referred to the fact that the monicipality, as part of the monicipal power

of attorney and the general operation of a municipality, can boy and sell real estate, and that it is not

unosual fors monicipality to be a cnntracting party ina transaction relating to real estate, to which

there is sttsched conditions for the finality of the trsnsaction.

Furthermore, regardless of the content of the purchase agreement, the logistics company has applied

for and received permission to establish the logistics company, and the condition in question in the

purchase agreement regarding the establishment of the road is henceforth withoot legal significance. It

hss not heen possihle for the logistics company to order a specific roote. It is also not unosual for the

huyer to have wished for an efficient road connection to the husiness area.

Natura

2000

hahitat impact assessment

Semi-natorsi div assland and scrubland facies on calcareons snbstratesHorsens Mnnicipality has

referred to the fact that in the habitat impact assessment an adeqoate assessment of the impact from

nitrogen deposition has been carried oot, where the cumulative effects with the existing deposition are

also taken into accoont, which is consistent with the practice of the EU Court ofJnstice.

2.5.2

Otter

Horsens Monicipality has noted that in the habitat impsct assessment, the importance of the road

project for otters in both the constniction and operational phases has been adequstely explained. The

design of the project as a landscape bridge ensores the necessary fauna passage, as described in the

management plan for otters.[29]

Brook lamyrey

Horsens Municipality has noted that a thoroiigh assessment of the project’s possible impact on the

brook lamprey hss been csrried out in the habitat impact assessmcnt and the environmental impact

report, snd thst there is no sssessment of a threat to the hrook lamprey.

Horsens Municipality has also noted that the reinjection of the groundwater takes place ina closed

system, where the groundwater does not come into contact with oxygen, which is why the reinjection

of the gronndwater ssill not cause a negative impsct on the fresh water quality in Bygholm

Å.

Vertipo peveri whorl snail, narrow-mouthed whorl snail and Desmoolin’s whorl snail

Horsens Municipslity has noted that the natural types and habitats of the habitst area hsve been

mapped by the Danish Environmentsl Protection Agency. On this basis, it has been concloded that the

eastern part of the habitat area does not contain habitat types that can support the presence of spring

snails nr narrow-moothed whnrl snails, and no snails were found. In the hahitat impact assessnsent, it

is assessed that there is no risk of impact on the species.

Horsens Monicipality has noticed that snails dn nnt migrate between hahitats in the same way as

mobile species, since the size nf the three species of snails is nnly approx.

1.5-3

mm.

The monicipality has also nnted that there is a distance nf at least

240

m between the pntential habitat

for the Desmoulin’s whorl snail within the hahitat area and the pressurized water-affected bog area

outside the habitat area just east nf the nnrthern section of the road trace, and that the areas in

between cnnsist partly of a road and partly of dry grassiand natnre, which dnes nnt constitote a

soitable habitat for species of snails. Should a popnlation of snails still be found in the alleged spring,

the municipality assesses that s possible popolation of snails csnnot interact with sny populations

within the habitat area, as the species will not spread via unsuitable habitat types. The alleged soorce

mass is isolated away from the habitat area, and any population in that soorce mass will not be covered

by the possible populations in the Natora

2000

area and therefore not covered by hahitat protection.

Groondwater lowering

Horsens Mnnicipality has noted that the lowering funnel does not affect the Naturs

2000

area, and

that dus also a tempori grounduiter louerung The municipaht3 has also noted that there are no

comolato e impacts from other grounduater low enng due to the distance and that

is not the

intention of the Environmental Assessment Act that conditions which are pnrely hypothetical are also

incinded.

Provision of the impact assessment

Horsens Municipality has noted that the consulting company which prepared the impaet assessment is

both an adviser to the logistics company in the area and Horsens Mnnicipality as the developer of the

connecting road. The adviser has not at any time acted as an anthority adviser for the monicipality in

the case and will not do

either. The municipality, as an authority, entered into negotiations

with

two

other consnltancy firms, which have reviewed the relevant consnltancy firm’s assessments, etc. The

adviser’s actions or client reiationships

with

two different developers in the same complex of cases

have therefore not infinenced the process, as the consultancy company in qnestion is not an adviser to

the authorities in the case, which is

why

questions about the advisers disqualification in that

connection are irrelevant.

2.5.3

Horsens Mnnicipality has also noted that the municipality has carried ont independent comment

rounds of the consultancy company’s habitat impact assessments to ensore that the Habitats

Directive’s reqnirements for an appropriate assessment have been met before the municipality has

issned the relevant permits. According to the habitat gnidelines, it is Horsens Mnnicipality’s

responsibility to ensnre that the matter is snificiently informed, and that ali aspects of a plan nr project

are identified and checked, when and if this may affect the consenation nbjectives, etc. ina Natura

2000

area, which the mnnicipality has done in this case.[3o] The mnnicipality does not agree

with

cnmplaints that it

can

be inferred from the practice of the European Conrt ofJnstice that the hahitat

impact assessment mnst be prepared in ali details by the responsible anthority.

2.5.4

Annex tV species

Bat

Horsens Monicipality has noted that the area has been examined for bats in accordance

with

the Road

Directorate’s gnidance Bats and major mads, as well as the precantionary principle, according to which

possible breeding and ronsting areas have been treated so that they are in fact breeding and ronsting

areas. tn the mnnicipality’s

view,

the investigations carried ont, inclnding the snrvey area laid ont, are

folly cnmprehensive and sufficient in relation to the porposes nf the investigations and the scope of the

intended prnject.

Horsens Monicipality has noticed that the complainant’s measnrement of the distance from the road

to the potential breeding and rnnsting areas for bats is significantly flawed, as it was not measnred

from the road ronte itself. In addition, the municipality has referred to an accompanying annex, from

which it appears that dnring the processing of the

case,

the municipality has stated that the distance

from the road to the potential breeding and resting area is apprnx. 70-80 m.

Horsens Mnnicipality has nnted that the qnestinn of the exact distance to the potentiai breeding and

resting area is not decisive in this case, as the assessment of impact is based on the road’s calcuiated

traffic mad and pattern and the natnre of the resnlting pntential noise and light impact, and that it thns

dnes not change the conclnsions drawn in the habitat impact assessment and the environmentsl

impact report.

In relation to the bat boxes, Horsens Monicipality

has

noted that they are intended to prevent damage

to pntential moosting trees, which are assessed as being of very poor quality in relation to use as a

sporadic daytime ronsting area and completely unsuitable as a breeding area nr winter rnnsting area.

Seen in the cnntext of the quality and extent nf breeding and roosting trees Incally in the river valley, it

is considered veiy unlikely that the removal of the extinct alder trees in question can affect the

ecological functionality of the area for bats, especially when hat boxes are set up in the area, which

overcompensate for the highly qnestionable day rest areas, possibly in the listed

2-4

trees.

Horsens Municipality does not agree

with

complaints that it follows from the practice of the European

Court of Justice that preventive measures cannot be used in relation to the ecological functionality of

Annex IV species breeding and resting areas. The municipality has also noted that it is assumed that

the preventive measures are functional at the time of the interventions and/nr when the road nr facility

is put intn use. It wnuld not be pnssible to place mads anywhere

iii

Denmark if the mads are nnt

allowed to cross areas where there is hat activity, and preventive measures have been used that

sufficiently ensure the maintenance of the lucal pupulations.

Horsens Municipality has also nnted that the lowering of the gmoundwater does not cause noise that

cnuld affeet Annex IV species.

tn addition, Horsens Municipality has noted that if the Envirunmental and Fond Complaints Buard

does not believe that it is sufficiently clear what the lead planting must cnnsist nf, it has mentinned the

pussibility uf inserting such a cunditiun in the Sectinn

permit.

Newt and uther amnhibians

Horsens Mnnicipality has referred to the fact that, as shnwn in the habitat impact assessment, detailed

field investigations have heen carried nut in

2020

and

2021

in relation to large newts and other

amphibians, including the pninted fog.

Horsens Municipality has noted that conditions have been set for the establishment of an amphihian

fence, and that it is adequate in relation to preventing population-reducing killings and disturbances of

individual individuals. The cumplainant’s observations nf the newt and the two frngs du nnt change the

assessment, as the observation was made outside the project area.

Other nature

Horsens Municipality has nuticed that the butt-leaved hair star is red-listed and not cuvered by the

species protection order nr listed as an Annex IV speciel, which is why the species is not covered by the

atrict prntection according to the habitat directive. A vuluntary agreement has been made with the

developer that the defunct alder trees will be pulled aside in connectinn with felling, and will remain in

the area as continued habitat for the butt-leaved hair star.

2.5.5

Horsens Municipality has also nnted that the barn owl is a red-listed speciel and not covered by the

speciel conservation order or listed as an Annex ty speciel. The vast majority of barn owls in Denmark

breed in open farm buildings nr nest boxes, and no buildings snitable for nesting barn owls will be

demolished nr felled in connectinn with the project, which is why this is not relevant in this case.

In additiun, Horsens Municipality bas nuted that cuckno is nut an Annex IV species, and that the

occurrence of cuckoo is registered on the limestune nutcrnp in the Natura

2000

area. The impaet uf the

chalk overgrazing in question is assessed in its entirety in the habitat impaet assesament.

Alternatives

Horsens Mnnicipality bas noted that, in connection with the sale of land in the business area, a

number of different alternative road connections were considered, and that the proposed alignment is

the one that is assessed to has e the least negatu e impaet no nature and landscape and at the same

time fulfills the pumpnse of the road ibicb among other things is seeuring the traffic infrastrncture

2.5.6

•-:

The monicipality has assessed that the road is necessary from a socio-econoniic perspective, and in

weighing tip interests, the socio-economic valne and necessity as well as local traffic safety have heen

central to the chosen ronte.

Horsens Mnnicipalitv has also noted that according to the Environmental Assessment Act there is a

reqnirement that reasonable alternatives mnst be described in an environmental impact report, and

that there is therefore no reqoirement that ali eonsidered alternativea most be treated in detail. tn the

monicipality’s opinion, the assessmenta carried out in the enviroomental impact report ofa total of

alternative alignments are therefore sofficient.

Horsens Municipality has alan noted that the interaection at Vrondiogvej has been established to

ensure amooth flow of traffic in the area and to create access to a rainwater hasin. to additioo, severat

of the alternative aligomeots described had conoectioos at the crossiog.

Horsens Monicipality has also ooted that the o alternative is deseribed to the enviroomental impaet

report, and that the o alternative will oot be able to eosure the flow of traffie in the area.

Determination ofterms

Horsens Mnoicipality has noted that Sectioo

of the Eoviroomeotat Assessment Act has been

complied with, and has referred to the Seetion

permit containiog a oomber ofeooditinns. Based no

the eoviroomental impact report, it has been assessed that there is no oecd to establish separate

mooitoriog measorea.

2.5.7

2.5.8

Otiser rcnsarks

Horsens Muoicipality has ooted that the c000ecting road does oot cootravene the provisioos of the

wetlands declaratioo, and that, in addition, it is oot a matter that falls noder the competeoce of the

Enviroomeotal and Fond Complaints Board, as there is no decisino in the legat seose io relation to the

questioo of the deelaration

Ness’ information during the processing of the case

September

2022,

Horsens Mtmoicipality submitted a response to the Emiroomeotat and Fond

Complaiots Board’s heariog, where the board asked the monicipality to explaio io more detail sereens

and plaotiog in the projeet, which preveot damage to bats. It appears from this that the ctient’s adviser

has drawn tip a memorandom, which Horsens Mooicipalitv, Natore and Eovironmeot, which the

aothority has reviewed and agrees with.

2.6

The prereqoisites for the assessmeot of whether the ecological fooetiooality of breediog and roosting

areas for bats will he damaged as a resolt of the project are, amoog other thiogs, detaited io the note.

It appears from this that the primary cooditioo for the assessmeot of the ecological fooctiooality of

breediog and roostiog areas for bats will oot be damaged is that the project does oot affeet soitable

breediog and roostiog areas for bats. to additioo, the poteotial barrier effeets betweeo breeding aod

restiog areas and foragiog areas as a result of the road constroctioo are averted by eosoriog the hest

possible fauna passage in the Bygholm Ådal, inetodiog for bats, by establishing the road construction

as a laodscape bridge with large clearaoee and opeooess noder the bridge, whieh accordiog to The

Road Direetorate’s go daoce

faooa passages is importaot for a well-fuoetinoing faooa passage.

The sereeoiog

the landseape bridge and the gnide plaotiog will also be established in accordanee

with the Road Direetorate’s iostnietions to ensore that the faooa passage will fuoetioo as best as

possible jo relation to ensuring the eeologieal fuoetiooatitv of breediog and roostiog areas for the bat

species io the area. The sereens on the bridge are only iostalled as ao additiooal secority io relation to

individual protection of the medium-high flying bat species. In this connection, reference is made to

the fact that it appears from the Road Directorate’s instrnctiona that it may be necessarv to mount

screens on the sides ofbridges, but that the instnictions do not contain recommendations for specific

heights or the design ofscreens. In connection with the project, it has therefore been chosen to

establish screens at a height of 1.6 m, which corresponds to screens on similar newer landscape

bridges.

The guide planting must complement the landscape bridge to ensure the hest possible fnnction of the

landacape bridge, which ensnres that the primary guide line in the area, Bygholm Ådal, iill continue to

function as the primary guide line. According to the Road Directorate’s instructions, the gnide planting

must not be significantly higher than the screens, which is why it has been chosen that the gnide

planting must have a height of at least

2.5

m on hoth sides of the road. Until the gnide plants have

grown, fences are set up that are tightly meshed as recomniended in the Road Directorate’s guidance

on fauna passages. Leader planting of 5 m is deliherately not chosen to minimize the Hak of ahelter

heing formed between the leader planting, where insects can gather during perioda of wind.

tn the response to the consultation, it is generally assesaed that the planned heights of screens and

guide plantings hest reduce the risk of traffic fatalities on hoth the road area and the landscape bridge,

and that a higher height of the guide plantinga and screens will very likely increase the Hak of traffic

fatalities to individuals.

In addition, based on the flight patterns of the individnal apecies, it has been assessed that most

species will rise the primary control line under the landscape bridge, and that the less structure-bound

species will fly at such a great distance from the control plantings and screens that the planned heights

will reduce the risk of collision considerable.

Tt alan appears from the note that it has been assessed that hop-overs are not relevant for the

ecological functionality of breeding and rooating areaa for bats, aa it relatea to the individual protection

of bata.

3. The Environmental and Food Complainta Board’s eomments and dccision

The following membera of the Environment and Food Complainta Board have participated in the

procesaing of the case: Birgitte Egelund Olsen (chairman), formerly county judge Eva Staal and count)’

judge Olaf Tingleff, aa well as the lay memhers Pelle Anderaen-Harild, Lene Hansen, Kristian Pihl

Lorentzen and Jens Vibjerg.

3.1

Exainination hy the Environmental and Food Complaints Board

This appeara from §

ii,

aubaection

in the Act on the Environmental and Food Complainta Board,

that the board can limit ita review of a decision to the circumatancea complained of. However, it

appeara from the draftera of the provision,[31] that the board has the oppurtunity and, depending on

the circumatancea, the duty to include other matters than what has been complained about, e.g. the

queation ofcompliance with applicahle EU law or basie principlea of administrative law.

It alao followa from § as, aubsection

in the Act on the Environnient and Food Complainta Board, that

the board can limit ita examination to the moat aignificant mattera.

b thia complaint, the Environment and Food Complaints Board has found occasion to deal with the

following mattcrs:

Authority capacity

lmpact on targeted surface water areas

lmpact of Natura

2000

area no. 236, Bygholm Ådal

Provision of the impact assessment

Impact on Annex IV speciel (bats, otters and newts)

Other nature

Alternatives

The Environmental and Food Complaints Board has, in eontinuation of this, found occasion to state a

numher of matters which the first instance will have to take into account in eonnection with a reneived

examination of the case, see more in section 3.3.

The Environmental and Food Complaints Board notes that matters relating to easements and

declarations are not regulated in the Environmental Assessment Act, which is why the board does not

have competence to deal with this issue. The hoard also does not have competence to consider whether

II is necessary to establish the connecting road, as the hoard eannot decide whether the project itself is

appropriate, hut can only assess legal and discretionary issues connected with the Section

permit.

3.2

The Environniental and Food (‘omplaints Board’s comments

3.2.5

The legal framework

The Environmental Assessment Act

The porpose of the Environmental Assessment Act’s roles is to ensure that an assessment of the effects

on the environment is carried ont as the basis for the decision to grant or refnse permission for project

types that can significantly affect the environment.

The environmental assessment rides mean that projects that can he expected to have significant

impacts on the environment may not be started before the authority has given written pcrmission to

start the project (environmental assessment obligation).

The developer ofa project subject to an environmental assessment mnst, according to Section

20,

sobsection of the Environmental Assessment Act.

prepare an environmental impact report that

contains an assessment of the project’s impact on the environment. It follows from section

20,

subsection 4, no.

that the information that the developer must provide about the applied for project

in the environmental impact report, cf. sobsection

in an appropriate manner must demonstrate,

describe and assess the significant direct and indirect effects of the project on biological diversity, with

particolar emphasis

species and hahitats protected onder the Habitats Directive[32J and the Birds

Directive.[33]

This follows from Section

24,

sohsection of the Environmental Assessment Act.

that after receiving

the environmental impact report from the client, the authority must review the report with the

involvement of the necessary expertise in order to ensore that it meets the reqoirements in section

20.

The aothority can, if necessary, ohtain additional information from the client to meet the reqnirements

in section

20,

PUS.

After reviewing the environmental impact report, the authority must send it for consoltation with the

authorities concerned and the public, cf. section

24,

sobsection of the Environmental Assessment Act.

After the consoltation, the authority must make a decision according to Section

of the

Environmental Assessment Act on whether the project can be approved. The decision is made on the

basis of the developer’s application, the environmental impact report, any additional information, the

resnits of the hearings that have been carried ont and the anthority’s reasoned conciosion.

According to section 5, no. 5, letter d of the Environmental Assessment Act, cf. letter c, the authority’s

reasoned conclusion deals

with

the project’s significant impacts on the environment, taking into

account the resuits of the authority’s investigations of the environmental impact report, any additional

information presented by the ciient, an)’ relevant information received via the hearing and the

authority’s

own

supplementary investigation, cf. section

24,

subsection s.

An §

permit must inciode the reasoned conciosion and contain ali the environmental conditions

attached to the decision, a description of ali the project’s characteristics and the measores that are

intended to be taken to avoid, prevent or iimit and, if possible, neutralize significant harmfoi effects on

the environment to be implemented by the developer and any monitoring measures. This follows from

section

27,

sobsection of the Environmental Assessment Act.

The anthority can, according to §

27,

sobsection of the Environmental Assessment Act.

attach

conditions to a §

permit

with a view

to foifihling the purpose of the Act. Terms must be

proportionate to the natore, iocatioo and dimeosions of the project as weil as the extent of its effects

on the envirooment.

If the project has significaot harmfol effects on the environment, the aothority most, according to

Section

27,

suhsection of the Environmental Assessment Act. 3, also set conditions for the chient’s

mooitoring thereof.

lue

reiaijuiisoiy

ucjwccn

LUt

nnviroomeoiai Assessmeot Act and the Water Framework Directive

According to Annex 7 of the Eovironmeotai Assessment Act, cf. §

20,

sobsection

2, 00.

6, the

enviroomeotal impact report most cootain a description of the sorrooodings which may be

significantly affected by the project, iocloding e.g. water, as weli as contain a description of the

project’s short-term as weli as long-term effects oo the eo’ironment.

The Water Framework Directive[34] establishes and determines the framework for pianniog and

implemeoting measures and mooitoring the water environment io the EU member states. The

directive stipolates, amoog other things, that the Member States most delimit the individoal

river

basins withio their national territory and assign them to separate river basin districts for the porposes

of this directive. According to Article

the overall porpose of the directive is to establish a framework

for the protection ofstreams and lakes, transitional waters, coastal waters and groundwater, which,

amoog other things, prevents further deterioration and protects and improves the conditioo of aqoatic

ecosystems.

Accordiog to the directive’s article 4, sobsectioo s, letter a, nos. i)-iii), Member States mnst, when

implementiog the action programs reflected in the watershed plans, i.a. implemeot the necessary

measures with a view to preventing the deterioration of the condition of ali sorface water areas,

sobject, however, to the apphication of the options for derogation that follow from sobsection 6 and 7.

With corresponding reservations and subject to possibie time exteosions porsuant to subsection 4,

Member States are further obliged to protect, improve and restore ali sorface water areas as ;vehl as

artificial and heaviiy modifled water areas with a vias’ to achieving good condition or good ecoiogicai

potential and good chemical condition for surface water by

2015

at the iatest.

According to the Water Framework Directive, Articie 4, subsection 7, there is no breach of the directive

in i.a. the cases where the failore to prevent the deterioratioo of the coodition of a surface water area is

due to new changes to the physical characteristics of the surface water area, and provided that a

number of specified conditions are ali met. Among other things. the changes must be jostifled b)’ the

fact that significant pnblic interests and/or the heneficial effects for the environment and society upon

achieving the target mnst be less than the beneficial effects resulting from the new changes nr changes

for the health of the population, the maintenance of human safety and snstainable development.

Regarding the relationship with the ELA Directive, the Conrt of Jnstice of the European Union has

stated in the Land Nordrhein-Westfalen judgment that the provision in Article 6 of the ETA Directive,

which relates to the information that must be made available during the procedure for a permit for a

project, must he interpreted as follows, that an ELA process mnst include the information necessarv to

assess the project’a impact on the water environment, taking mio accoont the criteria and obligations

laid down in accordance with the water framework directive, cf. water framework directive articie 4,

subsection

1.[35]

The provisions of the Water Framework Directive are implemented in Danish legislation in particnlar

in the Water Planning Act[36] and the Environmental Objectives Act.[37]

The Water Planning Act contains general provisions on water districts, authorities’ reaponsibilities,

environmental goals, planning and monitoring, etc. According to section 7 of the Act, aobsection

the

Minister of the Environment and Food laya down miles that determine and specify specific

environmental targets for the watershed districts’ individnal surface water hodies and gronndwater

bodies, inclnding rules on artificial and highly modifled snrface water hndiea, dcadlines for meeting

environmental targets and leas atringent environmental targets. Concrete environmental targets for

the individnal surface water areas, etc, is laid down in the environmental target order.[38]

With a view to meeting the concrete environmental goals, the Minister for the Environment and Food,

pursuant to §

19,

subsection

on the basis of the basic analysis, monitoring results and other relevant

knowiedge for each watershed district, an action programme. Action programs for each water area

district are laid down in the action order.[391 The effort programs include, among other things specific

measures aimed at individual water areas. The executive order also contains an overview of the basic

measures and general supplementaiy measures of the action programmes.

This appears from section 8, subsection of thc executive order.

that the authority can only make a

decision that involves a direct nr indirect impact on a surface water area or a groundwater body where

the environmental objective is met, if the decision does not resnlt in a deterioration of the condition of

the surface water area nr gronndwater body.

According to section 8, suhsection 3, the authority can only make a decision that involves a direct or

indirect impact nu a surface water area ur a groundwater body where the environmental target is not

met, if the decision does not result in a deterioration of the condition of the surface water area or

groundwater body, and does not hinder the fulflllment of the established environmental target,

inclnding through the measnres estahlished in the action programme. When assessing whether the

decision will hinder the fulfillment of the established environmental objective, it mnst be taken into

account whether the impact is neutralized later in the planning period.

The Danish implementation of the EIA directive also constitutes a basic meaaure according to the

water area plans. This means that in connection with the proceedings under the Environmental

Assessment Act, the environmental objectives and water quality must be described, and it must be

assessed whether the project will be able to influence these and, ifso, whether the project will

constitute an obstacle to achieving the set quality objectives. In connection with this assessment, it is

particularly important to consider the possible cumulative effects.[4o]

It will also constittite an obstacle to the fulfihiment of environmental objectives ifa mnnicipalitv grants

a permit which implies that the established environmental objectives, which are asaumed to be

achieved in the second (2015-2021) or third

(2021-2027)

planning period, cannot he achieved hefore

before the deadline.[411

The relationshio hetween the Environmental Assessment Act and the habitat regulations

This follows from Articie 6, subsection of the Habitata Directive.

3,[42]

that the national authorities

only give their approval to a plan or project that may significantly affect a Natura

2000

area, once they

have ensured that the plan or project doea not damage the integrity of the aite.

Article 6, aobaection of the 1-labitats Directive 3, also applies in cases where the authority’s approval of

the project ia given in the form of a permit pursuant to Section

of the Environmental Asseasment

Act. Permiasion will thus not he granted for a project pursuant to Section

of the Environmental

Assesament Act if the project could damage a Natura

2000

area integrity in violation of Article 6,

subsection of the Habitats Directive. 3.

Article

12,

aubaection of the Habitats Directive

also obliges the Member States to introduce a strict

protection system in the nattiral range of the animal speciel mentioned in Annex IV of the directive.

According to letter (d) of the regulation, the scheme must include, among other things, a prohibition

againat damage or destruction of breeding or resting areal.

Article 6, subsection of the Hahitats Directive 3, on the protection of Natura

2000

areas and Article

12,

paragraph

letter d, on the protection of Annex IV speciel is in Danish legislation mainly

implemented in the habitat order.[43]

Section 6 of the Habitata Executive Order, snbsection

thus states that, hefore nsaking a decision

pursuant to the provisions mentioned in § 7, the authority must make an assessment of whether the

project in itself, or in connection with other plans and projects, may affect a Natura

2000

area

significantly. If the authority assesses that the project may signiflcantly affect a Natura

2000

area,

pursuant to § 6, subsection

a detailed impact assessment of the project’s effects on the Natura

2000

area is carried out, taking into account the conaervation objective for the area in question. If the

asseasment showa that the project will damage the integrity of the international natore protection area,

no permit, dispensation or approval can be granted for the application.

Similarly, it followa from §

10,

subsection of the habitat order.

no.

that when administering the

provisiona mcntioned in § 7 and § 8, a permit, dispensation, approval, etc. cannot be granted if the

applied for coold damage or destroy breeding or resting areas in the natoral distribution area of Annex

IV- speciel.

When issuing a permit, the authority most, in accordance with section

25,

subsection of the

Environmental Asaessment Act.

then also ensore that the project isill not damage or destroy

breeding or roosting areas in the natoral range of Annex IV species.

Ad s) Incapacity ofauthority

Section

40,

sobsection of the Environmental Asaeaament Act.

stipulates that an authority which

prepares plans or programs covered by this Act, or which is both the client and aothority for an applied

for project covered by this Act, most carry oot its tasks and powera in an objective manner. It also

appears from section

40,

suhsection 3, that an aothority that is the developer ofa project covered by

this Act may not proceas the application for the project and make a decision on it, unless an

appropnate separation betneen incompatible functions has been ensured within the authont3 in

3.2.2

connection with the performance of these tasks and powers. Stich a conflict of interest can, according

to the EIA directive, i.a. conntered throngh a fnnctional separation or at least an organizatinnally

separate performance nftasks.[44]

According to the drafters, Section

of the Environmental Assessment Act is soppiemented by the

general rnles of Danish law on handling nificial disqnalificatinn. It alsn appears from the prncessnrs

that in cases where snbstitntinn is not pnssible and an ntherwise incompetent anthority participates in

the processing nf a case, it shnnld be noted nn the case that the person in qnestion was fnnnd to be

incnmpetent, bot still contriboted, and the reasnn for this should alsn be stated. Depending on the

backgrnnnd nf the disqnalificatinn, particnlarly high demsnds shnnld he placed on the provision of the

relevant information base in the case, an that others who participate in the processing of the case have

the opportnnity to fnllow and assess the facts and the premises for the decision of the case.[45]

This is fnrther apparent from §

15,

snbsectinn of the environmental assessment nrder.

cf. the

Environmental Assessment Act §

40,

subsection 4, that in order to prevent nificial disqnaliflcation, a

mnnicipal conncil, etc. carry oot a separation of tasks and powers when screening and environmental

assessment of plans, programs and prnjects in accnrdance with the law. Anthority disqnalificatinn

must, accnrding tn sectinn

15,

snbsection

is sought to be resolved by snbstitntinn, by which it is

understnod that a secnndary nr snperinr authnrity takes over the case from the disqnalified authority.

It alan appears from sectinn

15,

subsection 3, that if substitntinn according to snbsectinn

is nnt

possible, the disqualifled authnrity must, taking into accnnnt the scnpe and cnmplexity nf the prnject,

by law ensure as a minimnm that the emplnyees and managers whn prncess applicatinns and make

decisinns on behalf nf the EIA anthnrity are not the same as thnse, whn apply for the specific prnject.

The reason for anthnrity disqnaliflcatinn according to snbsectinn 3, and the speciflc handling therenf

must be nnted nn the case and appear in the decisinn, cf. sectinn

15,

snbsectinn of the Envirnnmental

Assessment Order. 4.

The Envirnnment and Food Cnmplaints Bnard initially nntes that Horsens Mnnicipality has made a

decisinn pursuant to §

of the Envirnnmental Assessment Act regarding a prnject where the

municipality itself is the developer, and that there is therefore, as a starting pnint, anthnrity

disqnalificatinn.

The Envirnnmental and Fond Cnmplaints Bnard agrees with Hnrsens Mnnicipality that, in this

sitnatinn, snbstitntinn cannnt take place for another subsidiaiy nr superinr authnrity. The bnard has

emphasized that the nriginal cnmpetence is vested in the mnnicipality, and that it cannnt, as a mIe, be

left to another authority withnut express statutory authority. The bnard has alsn emphasized that the

cnnsideratinn nf ensnring the necessary expertise is best ensured by handling the case in the

mnnicipality, as there are nn other anthnrities that have the necessary local knnwledge nr that

represent the mnnicipality’s citizens in a similar way. The bnard has alan emphasized that, accnrding to

the Envirnnmental Assessment Act, it is assumed that anthnrities can be disqnalifled, and that the law,

inclnding on the basis nf it, lays dnwn special precantinns fnr cases with snch a cnnflict nf interest.

A majnrity in the Envimonment and Fond Cnmplaints Bnard finds that Horsens Mnnicipslity has

ensured an apprnpriate separatinn between incnmpatible functinns in cnnnectinn with the

perfnrmance nf tasks and pnwers under the Envirnnmental Assessment Act, cf. the Envirnnmental

Assessment Act § 4n, snbsectinn 3, and as embndied in §

15,

subsectinn of the envirnnmental

assessment order. 3.

The majnnt3 has placed emphasis nn the fact that

is clear from the §

permit that

is ton different

departments in Horsens Municipalit) that has e been respectn e13 the de’ elnper whn has applied for

the project and the authority that has processed the project application and made a decision oo §

permission for the project. It also appears from the case that two separate authority tracks and a

developer track have heen established in the monicipality to ensore an appropriate division of

incompatible functioos in connection with the road project. The majority

has

also emphasized that it

appears from the information in the case that the division in Horsens Municipality has been carried

out op to the level of mnnicipal director.

The majority notes that the fact that an

advisory

company has also carried out tasks for others, which

to a certain extent are related to the specific project, does not in itseif mean that the adviser is

considered not to he impartial. The majority notes in this conoection that the advisor in question has

heeo an advisor for the logixtics company in the husiness area and for the monicipality as the

developer ot the connecting road. The consoltant has thus not advised Horsens Municipality as an

authority in the matter.

A minority (Pelle Andersen-Harrild) fods that Horsens Muoicipality has not ensured an appropriate

separation betweeo incompatible functions in connection

with

the performance of tasks and powers

under the Environmental Assessment Act, cf. the Environmental Assessment Act §

40,

subsectioo 3.

The minority has emphasized that the necessary separation between incompatible fuoctions has not

been ensured, as in practice there is no real and actual division between the incompatible tunctions

internally in Horsens Monicipality.

3.2.3

Impact on targeted surface water areas

3.2.3 Re 2) Impact an monitared badies ajsurface water

The Danish Environment and Food Board ot Appeal initially establishes that the enviranmental

objective tor Bygholm

is gaad ecological and chemical status.

According to Article 2, no. 21, ot the Water Framework Directive (WFD), ecological status is an

expression at the quality at the structure and tunctianing ot aquatic ecosystems associated with

surtace waters, classitied in accordance with Annex V, and, according to no. 22, good ecological

status is the status

a body at surtace water, so classitied in accordance with Annex V. No. 24

the

same Articie furthermore sets aut what is understood by good surtace water chemical status.

According to Articie 4(1)(a)(i) ot the WFD, member states must implement the necessary measures to

prevent deterioration at the status ot ali bodies ot surtace water. The same obligatian is stated in

Article 4(1)(b)(i) in relation to preventing the deterioration at the status at ali bodies of graundwater.

According to Annex V, paragraph 1.1.1 at the WFD, quality elements far the classitication at

ecological status tor rivers inciudes pollution by other substances identitied as being discharged in

signiticant quantities inta the body of water. Paragraph 1.2.1 turthermare includes a table at physica

chemical quality elements assaciated by a definition at high, gaad and moderate ecological status in

rivers. ln respect at specitic nan-synthetic pallutants, this paragraph states that good status is when

the cancentratian daes nat exceed the standards set in accardance with the procedure described in

Annex V, paragraph 1.2.6.

The Caurt at Justice of the European Union (CJEU) established in the Weser judgment that Article

4(1)(a)(i)

(iii)

must be interpreted as meaning that the member states are required to retuse

authorisation for an individual project where it may cause a deterioration of the status of a body of

surface water or where it jeopardises the attainment of good surface water status or of good

ecological potential and good surface water chemical status by the date laid down by the

directive.j4 Among the reasons for this is that the condition for a derogation as provided for by

Article 4(7) is that ali practicable steps are taken to mitigate the adverse impact on the status of the

body of waterj4fl

The WED does not specifically define what amounts to a deterioration of the status of a body of

surface water. However, if foilows from the CJEU Weser iudgment that the concept of deteriorotion

of the stotus of a body of surface water must be interpreted as meaning that there is a deterioration

as soon as at least one of the quality elements falls by one ciass, even if that fall does not result in a

fall in ciassification of the body of surface water asa whoie. However, if the quality element

concerned is already in the lowest class, any deterioration of that element constitutes a deteriorotion

of the stotus of a body of surface waterj4ffl

in the Association France Nature Environnement judgment, the CJEU furthermore established that a

temporary, short-term deterioration without lasting consequences can also amount to a

deterioration within the meaning of the WFDJ49J

Furthermore, the CJEU in its Land Nordrhein-Westfalen judgment concerning the WFD and

monitored groundwater held that a similar understanding must be applied to the concept of

deterioration of the status irrespective of whether it is surface water or groundwaterjffl The CJEU

also held that aithough the classes provided for in Annex Vare decisive for determining whether

there is a deterioration, after a body of surface water has been classified in the lowest ciass, further

deterioration of the status of that body of water will legally no longer be possibiejjj

The judgment furthermore states that the concept of deteriorotion oj the stotus of bodies of water

must be interpreted by reference to a quality element and a substance and that the threshoid

beyond which breach of the obligation to prevent deterioration of the status of a body of water is

found must be as low as possible, which entails that the failure to observe one of the quality

elements referred to in the WFD definition of good groundwater chemical status constitutes a

deterioration of the chemical status of the body of groundwater concerned.j

The CJEU has subsequently held that any subsequent increase in the concentration of a pollutant

that, with reference to Directive 2OO6/118fj, already exceeds an environmental quality standard or

a threshold value set by the Member State also constitutes a deteriorationj41

The judgment furthermore entails that where a quality element is not observed at a single

monitoring point in a body of groundwater, it must be found that there is a deterioration of the

chemical status of that body of water, for the purposes of Articie 4(1)(b)(i) of the WFDJM

The provisions of the WFD are impiemented in the Danish Act on Water Pianning (lov om

vondpIonlægning).(5J As provided for in this act, section 8(3) of the Executive Drder on Programmes

of Measures (indsotsbekendtqørelsen) stipulates that the authority can only make a decision

involving a direct or indirect impact on a body of surface water for which the environmental

objective is not met if the decision does not lead to a deterioration of the defined environmental

objective inciuding by the measures defined under the programme of measures

*;:-,

Pursuant to section 8 of the Danish Act on Water Planning, the minister is authorised to determine

specific rules for environmental objectives, inciuding what is to be understood by good surface water

status, good ecological potential for artificial and heavily modified bodies of water and good surface

water chemical status with a view to the implementation of European Union directives and decisions

concerning the protection of surface water and groundwater. The Executive Order on Estabiishment

of Environmental Objectives for Inland Surface Water, Transitional Waters, Coastal Waters and

G rou ndwater (bekendtgørelse om fastlæggelse af miljømål far vandløb, sØer, overgangsvande,

kystvand og grundvand) has been issued in pursuance of this provision4fl Section 3(1), no. 1, of the

executive order states that the establishment of environmental objectives for the individual bodies

of surface water must include the normative definitions of quality ciasses for ecological status and

ecological potential set out in Annex 1.

Section 2 of Annex 1 to the executive order sets aut definitions of high, good and moderate

ecological status in rivers in relation to physico-chemical quality eiements. lt is stated here that in

relation to specific non-synthetic pollutants, good status is when the concentrations do flot exceed

the environmentai quality standards established in Annex 2, part B, sections land 2.j1 Section 1,

part B of Annex 2 states that the general quality standardffl for copper in inland water bodies is i

pg/l added to the natural background concentration. It also states that the maximum concentration

for copper in inland water bodies is 2 ig/l added to the natural background concentration.

Section 8(6) of the Executive Order an Programmes of Measures states that the assessment of

whether a decision can be made in pursuance of subsections (2)-(4) must include the normative

definitions of quality classes for ecological status and ecological potential for bodies of surface water,

cf. Annex 1 to the Executive Order on Establishment of Environmental Objectives for Inland Surface

Waters, Transitional Waters, Coastal Waters and Groundwater, cf. Annex 2, part B of the same

executive order.

The 2015-2021 river basin management plan for River Basin District Jutland and Funen states the

following about environmentaily hazardous substances:jj

“The chemical and ecological status of a body of water

good

respect of environmentally

hazardous substances when the measured concentrations of substances do flot exceed the

established environmental quality standards. This means that the environmental objective tora body

of water is met when ali measured substances are in compliance with the environmental quality

standards. Conversely, a body of water will flot have achieved the environmental objective if just one

of the measured environmentally hazardous substances exceeds an established environmental

quality standard, cf. the WFD.”

ln addition, the Danish Environmental Protection Agency’s guidance on the Executive Order on

Programmes of Measures states the following about measures targeted against environmentally

hazardous substances:jj

“The assessment of the chemical status of body of water is based on concentrations of so-called

priority substances identified by the EU. Priority substances are substances that present a significant

risk to the aquatic environment at EU level. The assessment of the ecological status of a body of

water is based on the substances that are monitored because they are assessed to be discharged in

significant quantities at national level.

‘

In the assessment of ecological and chemical status of environmentally hazardous substances, the

measured concentrations will be compared with environmental quality standards. An environmental

quality standard is the concentration of a particular substance in water, sediment or biota (mussels

and fish) that must flot be exceeded in order to protect human health and the environment. The

applied environmental quality standards are set out in table 5 (chemical status) and tables 3 and 4

(ecological status) of Annex 2 to the Executive Order on Establishment of Environmental Objectives

for Inland Surface Waters, Transitional Waters, Coastal Waters and Groundwater

For the bodies of water in which one or more substances exceed the established environmental

quality standards, the ecological and/or chemical status is assessed as flot good. These are the bodies

of water in which measures must be implemented.”

The guidance also states the following about the framework for the administration by authorities of

legislation in relation to environmentally hazardous substances when the environmental objective

has flot been achieved:jj

“Whether a decision can be made for these bodies of water that involves introduction of

environmentally hazardous substaflces depends on a specific assessment of the significance of the

impact on the status of the body of water. If the impact is assessed to be significant, a permit cannot

be issued for the impact. If the impact is assessed to be insignificant, a permit may generally be

issued for the impact. The specific assessment should include an assessment of the quafltity and

concefltration of the substance related to the other introductions (cumulation), including from point

sources, diffuse impact and atmospheric deposition. An assessment is made of what happens to the

substance in the body of water, ificluding its transport (possibly to other bodies of water) and form

(dissolution, binding, chemical reaction, sedimentation, accumulation, immobilisation,

degradation/decomposition, etc.). It may include information about the development over time of

the introduction and/or presence of the substance in the body of water, e.g. a declining trend in

concentrations due to measures/regulation, an assessment of whether the impact is balanced so that

the impact does not deteriorate the status or prevent the achievement of the environmental

objective for the body of water within the established timeframe. This information helps inform the

assessment of whether the impact gives rise to an increase of the concentration in water, sediment

or biota, iflcluding whether it might, in prificiple, be registered by measurements. It is presupposed

that the activity resulting in an impact is based on the use of best available techniques. Also note that

the assessment of achievement of the objectives for environmentally hazardous substances is based

on individual substances subject to environmental quality standards, which means that the specific

assessment of the impact is made at substance level.”

Similar provisions appear from the draft guidance on the Executive Order on Programmes of

Measures from December 2O21.J.4j

In addition, question 43

ifl

the Danish Environmental Protection Agency’s FAQ about discharge of

certain pollutants to the aquatic environment states that the discharge may flot result in an increase

of the already existing concentration at the boundary of the mixing zone of more than 5% of the

value of the general quality standard for the substance for water when the environmental quality

standard for the substance is already exceeded in the aquatic environment.j1

In relation to achieving the objectives set out in the river basin management plan, the Environment

and Food Board of Appeal establishes that the objective has flot yet been achieved for the Bygholm

upstream outlet from Hatting Bæk, among other things because the status for environmentally

hazardous substances is flot good. The Board furthermore establishes that the status of nat good in

relation to environmentally hazardous substances is due to an exceedance of the copper content of

0.237 pg/l in relation to the general quality standard of 1.48 lig/I, corresponding to an exceedance of

approximately 16% and an exceedance of 0.32 ig/l in relation to the requirement of a maximum

concentration of 2.48 ig/l, corresponding to an exceedance of approximately 13%.

Concerning the ecological status of the Bygholm

downstream outlet from Hatting Bæk, the

Environment and Food Board of Appeal establishes that the objective for the ecological status has

been achieved. Particularly in relation to environmentally hazardous substances, the Board

furthermore establishes that the status

unknown.

It is the opinion of the Environment and Food Board of Appeal that the case law of the Court of

Justice concerning the concept of deterioration of the status in the Land Nordrhein-Westfalen

judgment, relating to additional introduction of a pollutant into groundwater that already exceeds

the environmental quality standard for the substance concerned is also applicable to surface water.

b this connection, the Board has attached importance to the statement by the CJEU that the concept

of deterioration of the status must be understood similarly for surface water and

groundwaterjj and that the CJEU in the case refers to case law for deterioration of the status in

the Weser judgment concerning surface water.j7 Ifl addition, the Board is flot of the opinion that

the understanding of the concept of deterioration of the status is affected by whether it is a

substance that relates to the ecological status or to the chemical status, as it is flot found that the

CJEU

makes or otherwise indicates such distinction. The Board makes reference to, e.g., the

statement by the CJEU in the Land Nordrhein-Westfalen judgment that

“[...}

»deterioration of the

status» at bodies of water must be interpreted by reference to both a quality element and a

substance”.J1

A majority of the Environment and Food Board at Appeal believes that based an notably the Weser

and Land Nordrhein-Westfalen judgments, deterioration of the status in relation to pollutants must

be understood as meaning that when the environmental quality standard for a pollutant has already

been exceeded and the body of water is consequently in the lowest possible class, any subsequent

increase in the concentration at the pollutant must be considered a deterioration of the status of the

body at water in contravention at Article 4(1) af the WFD. The majority notes that a similar

understanding must be applied to section 8(3) of the Executive Order an Programmes at Measures,

as the executive order is the Danish implementation at the obligation to prevent deterioration of the

status of surface water and groundwater.

Against this background, a majority at the Environment and Food Board ot Appeal finds that the

section 25 permit is flot in compliance with section 8(3) at the Executive Order an Programmes ot

Measures as the project will result in a deterioration of the ecalogical status ot Bygholm

in the

form ot a deterioration at the quality element for enviranmentally hazardous substances. This means

that the section 25 permit sufters from a material legal deficiency.

The majority has attached importance to the tact that the environmental quality standard for copper

is exceeded, that the status for environmentally hazardous substances is consequently flot good,

which is the bowest possible status, and that according to an environmental impact assessment, the

project will result in additional discharge of copper to the watercaurse by up to 0034 lig/I

corresponding to approximately 2/ ot the general quality standard for copper in a medium situation

Ifl this connection, the majority notes that the case does nat provide a basis for disregarding the

assessment by the Municipality of Horsens that the project will result in additional introduction of

copper into the watercourse, which is why the majority has relied on this fact in the case.

Furthermore, the majority has attached importance to the fact that it follows from CJEU case law

that also temporary and locally delimited deteriorations of the status of a body of surface water is in

contravention of the obligation to prevent deterioration of the status and that the threshold beyond

which breach of the obligation to prevent deteriorat[on of the status of a body of water is found

must be as low as possiblejj

Ifl addition, the majority has attached importance to the fact that the added amount ofcopper

introduced is flot decisive when the quality standard has already been exceeded, as any additional

introduction will result in deterioration of the status when the status is the lowest possible. Further,

the majority has attached importance to the fact that the impact of the additional introduction of

copper on the other ecological parameters is flot

perse

decisive for deterioration of the status, as

any exceedance of the quality standard must in itself be considered deterioration of the status of the

watercourse, cf. the CJEU judgment in Land Nordrhein-Westfalen.JZpj The fact that the

environmental impact report assesses that the additional copper introduced will flot be decisive for

achieving the quality element objectives for fish, small creatures and aquatic plants cannot result in

allowing the additional introduction as the additional introduction of copper results in an

independent deterioration in relation to the quality element for environmentally hazardous

substances.

Asa consequence of the above, the majority also notes that the majority is of the opinion that it is

not in compliance with the obligation to prevent the deterioration of the status of surface water to

allow additional introduction of copper following a specific evaluation of materiality as stated in the

Environmental Protection Agency’s guidance on the Executive Order on Programmes of Measures

when the quality standard has already been exceeded. The guidance is flot in compliance with CJEU

case law to the effect that any subsequent increase in the concentration of a pollutant constitutes a

deterioration when the quality standard has already been exceeded, which is why the case cannot

attach importance to the fact that the Municipality of Horsens has followed the guidance.jZjj The

Board establishes that the environmental impact report also refers to the Danish Environmental

Protection Agency’s FAQ question 43, which states that an additional discharge may flot result in an

increase of the already existing concentration at the boundary of the mixing zone of more than 5%,

but that a mixing zone has not been identified in the case concerned. The Board is consequently of

the opinion that FAQ question 43 is not relevant in the present case. The Board notes that with this

decision, the Board has flot decided on the application of the Danish Environmental Protection

Agency’s FAQ question 43 in relation to decisions on identification of mixing zones.

The minority (Jens Vibjerg and Kristian Pihl Lorentzen) finds that the section 25 permit is in

compliance with section 8(3) of the Executive Order on Programmes of Measures.

The minority has attached importance to the fact that the additional introduction of copper into

Bygholm

is so small that it can be defined as non-significant in accordance with the threshold for

additional introduction of xenobiotic substances of 5% as set out in the Danish Environmental

Protection Agency’s FAQ question 43, and that the permit may be granted under this exemption.

Kommenterede

[KV1]: The

part of the rulingthat is at

the

center of our questions

3.2.4

Ad 3) Irnpact on Natura

2000

area

This follows from Seetion

20,

subseetion of the Environmental Assessment Aet. 4, no.

that the

environmental impaet report must demonstrate, describe and assess the projeet’s significant direet

and indireet effeets

e.g. the biologieal diversity with particular empha.sis on species and habitats

proteeted under the Habitats Directive.

The authority must also observe Natora

the habitat order.

2000

proteetion when issuing the §

permit itseif, ef. § 6 of

The EU Court of Justice interprets the provision in the Habitats Direetive, Articie 6, subseetion

3,50

that the authority must make an assessment of whether it can be ruled ont that a plan or project in

itseif or in conneetion with other plans and projeets may significantly affeet the aehievement of

favorable eonservation status for the designated area, inciuding whether the conservation status of the

speeies and/or nature types that the area has been designated to proteet will he significantly affected

(signifleance assessment).

If such an impaet cannot be ruled out on the basis of objective eriteria, if the project is to be promoted,

a more detailed assessment (eonsequence assessment) must be carried out. This assessment must

inelude alI aspeets of the project that may affeet the site in question, and the assessment must be

earried out on the basis of the best scientific knowiedge in the field.[72]

The competent national authorities only authorize an activity on the proteeted site on the condition

that they have obtained certainty that the aetivity will not have harmful effeets on the integrity of the

site in question. This is the case when, from a scientific point ofview, it can be determined beyond

reasonable doubt that there are no sueh effeets.[73j

In such an assessment, the precautionary principle applies.[74]

The integrity ofa Natura

2000

site includes its basie characteristics and ecological functions. It can be

defined as a coherent sum of the area’s ecological strncture, function and the ecological processes

across the area, which enable it to maintain the habitat types, the combination of habitat types and/ur

species pupulations for which the area has been designated.[75]

As far as species are concerned, the conservation status ufa species is defined in Artiele 1(j) of the

Direetive as the result of ali the conditions that affect the species and which may, in the long term,

affeet the distribution and abundance of its populations within the Member States’ area in Europe

where the EU Treaty applies.

The Environment and Food Complaints Board notes that in the delineation of what constitutes

harmfui effeets on the integrity of the site aceording to the habitat direetive’s artiele 6, paragraph 3, the

eriteria and methods that are expressiy stated in the direetive’s artiele 6, subseetion should also be

ineluded.

Aceording to the Habitats Direetive, Artiele 6, subseetion

Member States shall take

appropriate measures to avoid deterioratiun uf the habitats and habitats of the speeies in the special

areas uf conservation, as well as disturbance of the speeies for whieh the areas are designated, insofar

as these disturbanees have significant eonsequenees for the ohjeetives of this Direetive.

The EU Court of Justice has alsu determined that the impaet assessment must cuntain complete,

preeise and final findings and cunelusiuns about the impset of a projeet

a Natura

2000

area with

regard to alI the habitats and speeies for whieh the area has been designated. The impaet assessment

must therefore partiy identify and beate alI the habitats and speeies for whieh an area is pruteeted, and

partly the assessment must also inelude information about species and habitats outside the pruteeted

location. Since it must be clear from the assessment why the proteeted hahjtats and species are not

affeeted, in certain cases it may be sufficient to estahljsh that only certain proteeted habitats and

species jo the part of the proteeted area that are affeeted by the projeet, are affeeted and that the other

protected hahitats and species

the sjte are oot affeeted. Ftowever, thjs presupposes thst there ja

sufficiently preejse joformat ion aboot where proteeted species and nature types are located jo the

iodividual Natura

2000

areas, as well as the ioteraction with other specjes jo and ciose to the Natora

2000

area.[76j

Wjth regard to the geographical exteot of the proteetion, the Court of Just jce of the EU has determioed

that the hahjtat directive’s reqoiremeots for significaoce and impaet assessmeot also apply to a plan or

projeet located ootsjde the affeeted Natora

2000

area, when these can sigoificantly affeet species

the hasjs of designatjon. The same applies wheo the speeies are outside the Natura

2000

area.[]

The Environmeotal and Food Complaints Board fods that, jo the speejfic case, Horsens Municjpality

has had a suffieieot basis to be abie to assess whether the projeet will cause a sigoificant impaet

caicareous meadows, brook lampreys, vertigo geyeri whorl snails, oarrow-mouthed whori snails,

Desmoulio’s whorl snails and otters oo the basjs of desjgoatioo for the oearby habitat area H236. The

eommittee also finds that there is no basis for overridjog the municipality’s assessment that the projeet

will oot affeet the desigoatioo basjs for the Natora

2000

area.

Semi-oatural dry erassiand and serubland faeies

ealcareous substrates

The Environment and Food Compiaiots Board has, jo relation to semi-natural dry grasslaod and

scrubiand facies

eaicareous substrates, emphasized on the basis ofdesignation that the nearest area

jo the Natura

2000

area with grassiand

calcareous substrates is approx.

300

m from the road’s

route, and that the grasslaod

eaieareous substrates ja thereby oot direetly physicaliy affeeted by the

project.

The Environmental and Food Compiaiots Board has also emphasized that speeifc caiculations for

oitrogeo deposition have been made jo the impaet assessmeot, and that based oo the modeled

baekgroood bad jo the area and the ealculated deposition at the time of the projeet’s realizat ion, it has

been assessed that the deposition based

the excessive structural and speeies status does not pose a

threat to the eooservatioo status of the grassland.

Vertieo geyeri whorl snail, narrow-mouthed whorl soail and Desmoulin’s whorl snajl

The Enviiroomeot and Food Complaints floard has emphasized, jn relatjon to the vertigo geyeri whori

snail, the erooked water soajl and the swamp water soail, that the three speejes are registered jo

assoejat ion with spring water and sedge jo the central and western part of the Natura

2000

area more

than

900

m from the projeet area, and that there are no natural types have been registered whjch sill

be able to support the preseoce of the vertigo geyeri whori snail or the narrow-mouthed whorl snail

near the project area.

The Environment and Food Complaints Board has also empbasized that Horsens Munjcipality has

stated durjng the appeal that the area with potential habjtats for snails outsjde habjtat area H236 ijes

approx.

240

m from the poteotial habjtat of the Desmouljn’s whorl snail witbio the habitat area. The

areas between the potentjai habjtat and the habjtat within the Natura

2000

area eonsjst partly of a

road and parti) of dr) grasslaod which does not ennstitute a suitable habitat for speeies ofsoails b

this eonoection the board has also emphasized that snails dn not mignte bero een babitats as the) are

non mobile speeies

The Environmental and Food Complaints Board has, in relation to what was stated in the complaint

regarding the finding of potentially suitable habitats for snails in the road route ontside the hahitat

area, emphasized that the source sonrce in qnestion is isolated from the hahitat area, and that a

possible population will therefore not be covered of the possible populations of snails in the hahitat

area and therefore not be covered by habitat protection.

Brook lamprey

The Environment and Food Complaints Board has emphasized, in relation to the lamprey, that the

project in the constrnction phase is not assessed to he able to affect a possible popnlation of lamprey

ifl

the Bygholm

watercourse system, as no physical changes are made to the watercourse. Tt also

appears that the stretch of watercourse around the project area can he a hreeding ground and

migration site for the species, but that the stretch of watercourse at the project area is not assessed to

constitute a likely breeding area, as the bottom is mainly sand)’ and as there is considerablc sand

migration.

The Environmental and Food Complaints Board has also, in relation to the impact on the brook

lamprey in connection with the temporary groundwater lowering in the construction phase,

emphasized that the groundwater is rcinjected and thus not discharged into the stream, and that the

groundwater lowering therefore does flot cause changes in the stream, including for the brook

lamprey.

The Environmental and Food Complaints Board has also emphasized that in the impact assessment,

calculations have been made of the dischargc of rainwater during the operational phase, and that on

this basis it has been assessed that there will be no impact on the river lamp in relation to flnctuations

in oxygen concentration, salt impact and environmentally harmful snbstances.

Otter

tn relation to otters, the Environmental and Food Complaints Board has emphasized the information

that the areas immediately east of the Natura

2000

area are not significant asa breeding area for

otters, and that during the constrnction phase there will he good opportnnities for hiding both

npstream and downstream of the project area.

In relation to the complaint that the temporary bridge during the construction phase over Hatting Bæk

will disturb the otter’s movement possibilities, the board has emphasized that any impact during the

constrnction phase will be of a temporary nature and that the construction activities will take place

within normal working hours dnring the day and not during the night hours, when otters actively

forage in the streams.

The Environmental and Food Complaints Board has also emphasized that the road construction

during the operational phase does not cause a barrier effect for otters, as the construction ensures

passage conditions for otters between the Natura

2000

area and an)’ resting areas downstream of the

project area in accordance with the management plan for ntters.

Groundwater lowering

In relation to the impact from groundwater lowering, the Environmental and Food Complaints Board

has emphasized that it appears from the model calcnlatinn for the distribntion of the lowering funnels

dnring groundwater lowering that the lowering funnels for the four middle support points do not reach

into habitat area 11236, and that on that basis it has been assessed, that the nature types and species

dependcnt on the stream will not be negatively affected by the lowering of the groundwater.

In relation to a possible impact from the grouodwater loweriog jo cumulation with other projects, the

Eoviroomeot and Food Complajots Board has emphasized the caiculation of the loweriog funoels and

the distance to the business area.

The Environmental and Food Complaints Board forther notes that, jo the board’s opinion, it caonot be

reqoired that an enviroomeotal jmpact report relate to the comulative effect with ali other projects in

the area. The assessment of the cumulatjve effect must only relate to the other projects jo the area that

most he conajdered reievaot jo relation to a sjgnjficaot iocrease jo the enviroomeotal impacts

compared to the desjred project.

3.2.5

Ad 4) Provjsjon of the jmpact asseasment

This appears from section 6, subsectjon of the habitat order. iand par.

that jf the authorityassesses

that a project may sigoificantly affect a Natura

2000

area, a detajled impact asaessmeot of the project’s

effects on the Natura

2000

area must he carrjed out, taldog joto accooot the conservation objective for

the area jo questioo.

It also appears from section 6, suhsectioo of the executjve order. 4, that assessmeots according to

subsectjon t-3 most appear jo the decjsioo.

It ja therefore assumed jo the regulations that an assessmeot must first be made of whether the project

can sigoificantiy affect a habitat area (sjgoificaoce assessmeot). If thjs js the case, an asseasment of the

impact on the area must he carrjed out (coosequeoce assessmeot), and this asseasmeot must be

included jo the decjsion.

It appears from the habitat guidaoce that it is the authority’s respoosibility that a case ja decjded

sufficiently informed basis, and that the authority must thus eosure that sufficjent jnformatjon ja

provided to determjoe whether a plan or project damagea a Natura 2000 area’s jntegrjty. According to

the practice of the European Court of Just jce, it j5 the authority that j5 obliged to ensure that an

assessment has been made on a sufflcieotiy joformed bas js.[78] It is further atated jo the habjtat

guidance that jf an authorjty does oot have access to the jnformatjoo necessary for the processiog of a

specific case, the appiicant may be ordered to obtaio joformatjon relevant to processing the

application. Refereoce ja made to the fact that, amoog other thjogs, there is authority jo the

Enviroomental Assessmeot Act §

24,

subsectjoo

to order the appljcaot to provjde additjonal

joformation.

The Environmeotal and Food Complaints Board fods that Horsens Muojcipality’s assessmeot of the

project’s impacts on the nearby Natora

2000

area meets the reqoiremeots for an jmpact assessment

accordjog to the habitat execotive order, and that, based oo the joformatjon jo the case, there is

basis for estabi jah jng that the impact assessmeot was not prepared impartiaHy.

The Eoiroomeot and Food Compiaints Board has emphasized that indepeodeot commeot rounds

have been carried out jo Horsens Muoicipality no the content of the habjtat jmpact assessment jo

questioo with the aim of ensurjng that the habjtat directive’s requiremeots for an appropriate

assessment have been met before the muoicipahty aooouoced the relevant permits for the project.

The Eovironmeot aod Food Complaiots Board bas also emphasjzed that jt appears from the §

permit that Horsens Muoicipaljty, Nature and Enviroomeot, has received assistance from an exteroai

consulting company to review the developer’s assessmeots of the impact on the Natura

2000

area and

Annex IV- specjes.

The Environmental and Food Complaints Buard has also placed emphasis on the fact that no

information has emerged

with

the complaints that provides a basis for assuming that the content of

the impact assessment or the assessments made were insnfficient or incorrect.

3.2.6 Ad 5) Impact on Annex IV species (hats, otters, newts and toads)

This follows from Section

20,

subsection of the Environmental Assessment Act. 4, no.

that the

environmental impact report most demonstrate, describe and assess the project’s significant direct

and indirect effects on e.g. the hiological diversity with particular emphasis on species and hahitats

protected under the Habitats Directive.

The authority must make sure, when issuing the §

permit itself, that the project will not damage or

destroybreeding or roosting areas in the natural range of Annex IV species, cf. §

of the habitat

order.

The EU Commission has published guidance on the protection of Annex IV species.[79] The provision

in the Habitats Directive, Articie

12,

subsection s, letter d, according to the guidance, must be

understood as an objective that the ecolugical ftinction of breeding and resting areas is preserved.

Breeding areas are defined in the goidance as the areas to be used for mating and birth, and also cover

the area near the nest or birth site if the uffspring are dependent on such areas. Resting areas are

defined as the areas osed by an animal or a group of animals when they are not active. Roosting areas

also include structures that animals establish as roosting areas, e.g. nests, borrows or hiding

places.[8u]

Likewise, resting areas are defined in the Danish Environmental Protection Agency’s habitat goidance

as areas that are important to ensore the survival of individoal animals or populations when they are

at rest. [81] Resting areas are thos areas where the speciel atays doring or outside the breeding seasoo

to rest, sleep or hibernate (hibernation) and in hiding in larger coocentrations (flocks) and to fulfill

important life functions (sunbathing ur the like). Breeding and resting areas have in common that they

are osed regolarlyby the species.[82]

A breeding ur roosting area in the sense of the Habitats Directive and the Habitats Order means a

cullection (“network”) of localities where a populatiun ofa species breeds ur ruosts. The importance of

the iodividoal locations in the netwurk may depend un the pupulation’s density and spread putential.

When assessing whether a breeding or ruosting area is damaged ur deatroyed, it is decisive whether

the ecological functionality of the network of sites can be maintained at at least the same level as

before.[83]

It is the responsibility of the competent authority, in accordance with the general administrative law

investigation principle, to ensure that sufficient information is provided to he able to assess whether

breeding ur roosting areas fur Annex IV speciel are damaged ur destruyed. Nu clear criteria can be

established for the extent and nature uf the information that is required. It depends un the specific

situation. There can e.g. in the case uf ulder information, there may be a need to assess whether the

information needs to be updated to determine shether the species actually continues to uccur in the

affected areas Precise criteria cannot be set fur hen information is too uld as the species are ery

different just as the natural de; elupment (e g u; ergruwth) of an area can ha; e an impact on

hether a

species is present There may be a need fur further in; estigations

decisiuns are to he made in parts uf

the country ;;here the species are known to occur and ;here there is a hkelihuod that possible

breeding ur roosting areas may be affected Any Im estigatiuns must be carried out in a targeted

manner nsing suitable methods, and it must be ensured that the investigations take place at the times

of the year when the speciel in qnestion can be expected to utilize a given area. The surveys mnst

therefore take place at times when there will be a high probability of detecting the species if it occurs in

the area.[84]

to relation to activities that may affect breeding or resting areas, according to the EU Commission’s

giudance, a distioction mnst be made between activities that can be accommodated within Article

the Ftabitats Directive and activities that reqtnre a derngation pnrsuant to Article 16 of the Directive.

Where a derngation under Article 16, compensatory measures will aim to compensate for specific

negative effects no a species and thns imply that there is nr has been damage nr destructinn nf

breeding nr rnnsting areas. This is nnt the case fnr measnres to ensnre ecnlngical functionality, which

ensnre that the ecnlngical functinnality of the hreeding nr rnnsting area remains cnmpletely intact

(qnantitatively and qnalitatively) when the activity has taken place (remedial measnres).[85]

The European Cnurt nfJnstice has stated in the Grand Hamster II judgment, with reference to the EU

Cnmmissinn’s gnidance, that accnrding to the habitat directive’s article

12,

paragraph

letter d, in

particnlar, it mnst he ensured that the breeding and rnnsting areas of a prntected animal species are

not damaged nr destrnyed by hnman activities, sn that these areas cnntinne to offer the cnnditinns

necessary fnr this animal species to rnnst nr breed within this area success. to such an assessment,

accnnnt must be taken of the ecnlngicat requirements that apply to each nf the affected animat speciel

to which the individnal in questinn belnngs, as wett as to the situation at individnal levet for this

animal speciel that nses the breeding nr resting area in questinn.[86]

The Envirnnmental and Fnnd Cnmplaints Bnard is nf the npininn that the assessment nf Annex IV

speciel at the time nf the decision dnes nnt necessarity have to include a final assessment nfw’hether a

given lncatinn actnally serves as a breeding nr resting area for Annex IV speciel, if, nn the basis nf a

precantinnary principle fnr the time being, it is assnmed that this is the case.

tf, nn the basis nf a precantinnary principte, a given Incality can be assnmed to serve as a breeding nr

rnnsting area fnr an Annex IV speciel, it mnst then be assessed how the prnject xsitt affect the Incality

immediately. If the immediate impact is harmfnl, it must be assessed whether the site’s nngning

ecuingicat fnnctinnality as a breeding nr resting area can be maintained with the help nf mitigatinn

measures. If the preventive measnres cannnt be expected with a high degree of certainty to wnrk to a

sufficient extent, the prnject must be adapted so that the immediate damage to the site is avnided.

It appears from the Danish Envirunmental Prntectinn Agency’s habitat gu dance that mitigatinn

measnres are suitable for speciel that are quick to cnlnnize new locatinns within a netwnrk nf Incatinns

that form a combined area for a stock, and where new suitable habitats can be created uver a shorter

perind nf time.

also appears from the Danish Envirnnmental Prntectinn Agency’s habitat guidelines that, where

applicable, there must bea high degree nf certainty that mitigation measures will wnrk to a snificient

extent. The greater the uncertainty in the knnwledge nf the specific nccurrence nf the speciel in an

area, the greater the need fur preventive measures in the form of securing possible new breeding ur

roosting areas. Where mitigation measures are required, according to the Danish Environmental

Prntection Agency’s habitat guidelines, clear terms must be laid down in the specific cases. The term

must be drafted in such a way that it can be enfnrced.[87]

Bat

The Envirnnmental and Fond Complaints Bnard initially states that, in the investigatinns carried uut in

connectinn with the preparation of the habitat impact assessment, a breeding and ronsting area for

‘

pipistrelle and pygmy bats, and possibly also for brown and troll bats, has heen found approx.

300

west of the project area. The board notes that, in addition, it has not heen mapped in detail whether

there are hreeding or resting areas in the w’ooded area approx. 8o m east of the conneeting road, and

that possible hreeding and roosting areas have been treated as if they were actually breeding and

roosting areas.

It appears from the environmental impaet report that, in connection with the establishment of the

landscape bridge, sheet pile walls for the constrnction pits around the foondations for the bridge piers

must be framed. The noise from the framing of sheet piles will usoally be experienced as particularly

annoying, as it is impulse noise. Noise calcnlations have been made in relation to neighboring homes,

and on that basis a simple noise calculation of the noise propagation has been made, w’hich show’s that

noise levels of over

dB(A) can be expected more than

300-400 m from

the impact site. It appears

that the framing work is estimated to last

days, and that the work is only carried out during daytime

hours on weekdays. lt has also been assessed that there is no need for significant mitigation measores

in connection

with

eonstniction noise.

The Environmental and Food Complaints Board finds that Horsens Municipality did not have a

sufficient basis for assessing that the project w’ill not affect the ecological fonctionality of breeding and

roosting areas for the nine registered hat species in the area.

The Environmental and Food Complaints Board has emphasized that no assessment has heen made of

w’hether the noise during the construetion phase from the framing of sheet piles could affect breeding

and roosting areas for hats. In this connection, the board notes that in the case Horsens Municipality

has chosen to treat the areas east of the connecting road as if they were actoally breeding and resting

areas, bnt that no assessment has been made of whether the noise could affect the nearby breeding and

resting areas functionality, especially during the breeding season. In addition to this, the committee

notes that it appears that noise from hitting is impulse noise, w’hich can be more annoying than other

noise. The board refers to the fact that it appears from the Management Plan for hats on secoring

suitable hahitats that disturhances, snch as severe noise impact that coold harm the local popolation of

bats mnst be avoided.[83]

A majority of the Environment and Food Complaints Board also finds that Horsens Monicipality has

had sofficient grounds to assess that the other parts of the project ss’ill not affect the ecological

functionality of breeding and roosting areas for the nine registered hat species in the area.

In the assessment, the majority emphasized that, in accordance with the goidelines in the Road

Directorate’s guidance on bats and major roads, hat snrveys were carried oot doring the stated periods,

and that both dsytime inspections, snrveys w’ith aotomatic detectors and reviews of the area with

handheld hat detector. On this basis, it has been determined where in the area there are breeding and

roosting areas for bats, or potential breeding and roosting areas, jost as significant guide lines and

foraging sreas of importance for the ecological fonctionality of the breeding and roosting areas have

been determined.

The majority has also emphasized that, in connection with the decision, it has been assessed that most

of the registered hat species will nse the primaiy

control line under

the landscape bridge, and that the

smaller structnre-bound species will fly at snch a great distance from the control plantings and screens

that they planned heights of bridge goarding and gnide planting will rednce collision risk for bats.

to addition, the majority bas emphasized that the road’s crossing of Bygholm Ådal and Bygholm

Å,

which are respectively assessed to be an important foraging area and an important control line for bats

in the area, he built asa landscape bridge of the type Ali, (wet)

iii

accordance with the Road

Directorate’s road rules about fauna passages, and that the landscape bridge under each of the three

5°

middle spans has a clearance of at least 7 mand a width of approx.

m, which is in accordance with

the minimum dimensions specified in the gude for the selected type of landscape bridge. In this

connection, the majority has emphasized that Iandscape bridges of the type AiL (wet) in the

Nonvegian Road Directorate’s road rules on fauna passages are indicated as a suitable prevention

measure for species of hats, including water bats, pond bats, pygmy bats, pipistrelle bats, trofi hats and

long-eared hats, and that high landscape bridges with large clearance under the bridge, which in this

specific case are also suitable for southern bats. Furthermore, the majority has emphasized that the

risk of collision at road crossings for brown bats and lung-eared bats is considered low according to the

Road Direetorate’s road rules.

In addition, the majority has emphasized that screens are set up on the sides of the bridge and goide

planting is established in accordance with the Roads Directorate’s road rule un fauna passages 10 order

to minimize the risk of collision for bats that forage at the height of the bridge above the river valley,

and lead low-flying hat species on the edge of the river valley down in the river valley, where there is a

passage under the bridge. b the beginning, the golde planting is also supplemented in accordance

with the Road Directorate’s road rule on fauna passages with a flne-mesh wire fenee with a minimum

height uf

2.5

m, so that bats cannot pass through the fence.

Overall, b relation to the preventive measures deacribed, the majority has emphasized that conditions

have been laid down b the section

permit in accordance with this.

b relation to the disagreement about the distance to the potential breeding and rousting area for bats

east uf the connecting road, the majority has emphaaized that the actual distance does not deviate

significantly from the previuusly stated distance.

Finally, the majurity has emphasized that any impact from light and visual disturbances from traffic

during the operational phase is limited by the shielding on the sides of the bridge, and that nu road

lighting is established un the stretch, just as the planting abung the road and the bridge shielding on

the road bridge itself will reduce a potential impact ofbats in the uperating phase significantly.

Particularly in relation to a putential noise impact, the majority has emphasized that it is a country

road and that the environmental impact report states that the noise in the area will nut be significantly

increased.

The minurity (Pelle Andersen-Harrild) finds that, in relation to noise during the operational phase,

Horsens Municipality has nut had a sufficient basis fur assessing that the project will not affect the

ecobogical functionality of breeding and ruosting areas for the nine registered hat species in the area.

The minority has emphasized that Horsens Municipality has nut taken a position on the habitat

requirements uf the individual hat species ur differentiated between the species’ auditory sensitivty,

and that there is not a sufficient basis to conciude that there is no impact during the operatbunal phase.

Other Annex IV suecies

The Environmental and Food Complaints Board finds that Horsens Municipality has had a sufficient

basis for assessing that the pruject will not affect the eculugical functiunality of breeding and resting

areas for large water salamanders, pointed frugs and otters. The committee also finds no basis fur

overriding the municipality’s professional assessment that breeding and resting areas for the species

will nut be affected by the plan.

In relation to the pointed frog and large newt, the Environnsental and Food Complaints Buard has

emphasized that, in connection with the environmental impact repurt, a search for tadpoles in suitable

‘4.

habitats has been earried out in accordance with the technical instructions for monitoring amphibians

and inchided existing data on the occurrence of the species in the area.

The Environment and Food Complaints Board has also emphasized that an amphibian fence be

established along both sides of the road on the north side of Bygholm

Å,

and that it has been assessed

that the planned establishment of the prevention measure will not impair the ecological functionality

ofbreeding and resting areas for large newt and pointed frog. In this connection, the committee has

emphasized that any individuals of the speeies will be led under the road bridge.

In relation to otters, the Environmental and Food Complaints Board initially notes that the section

permit, the environmental impact report or the habitat impact assessment do not immediately appear

to have assessed whether the plan will affect the ecological functionality of breeding and resting areas

for otters. However, the board understands the assessment in the habitat impact assessment to mean

that, in addition to an assessment of otters on the basis of designation for babitat area H236, the

assessment also contains an assessment of the project’s impact on the ecological functionality of

breeding and resting areas for otters, as the population of otters that reside within and outside the

Natura

2000

area, must be eonsidered to coincide.

In the assessment in relation to otters, the Environmental and Food Complaints Board has

emphasized that the immediate area around the road route is grazed and open without good

opportunities for hiding, and that on this basis it has been assessed that the areas immediately east of

the Natura

2000

area are unsuitable as breeding grounds for otters. The committee has also

emphasized that the construction activities are temporary and that the activities will take place within

normal working hours during the day, and that there are good opportnnities for the species to seek

refuge both upstream and dnwnstream where the constrnctinn works take place.

The Environment and Food Complaints Bnard has also emphasized that the landscape bridge in the

operational phase will ensure good passage conditions, which ensures that otters can pass under the

road along the stream in accordance with the management plan for otters.

3.2.7

Ad 6) Other nature

According to Annex 7 of the Environmental Assessment Act, cf. §

subsection s, an environmental

impact report must contain a description of the project’s expected significant impacts on the

envirnnment of those in §

20,

subsection 4, mentioned factors, including the biological diversity that

can be expected to be significantly affected by the project.

The Environment and Food Complaints Board finds no basis for overriding Horsens Municipality’s

assessment pnrsnant to section

24,

subsection nf the Environmental Assessment Act.

according to

which the envirnnmental impact report fulfills the requirements nf the law as far as descriptinn nf the

project’s expected significant impact on nature is concemed, including butt-nosed frog, cnckoo-wnrt,

butt-leaved hair star and barn owl.

The Environmental and Food Complaints Board initially notes that there can be no requirement that

an environmental impact report mnst contain an independent assessment of ali species that can

potentially be fnund in an area. The committee points ont that it is the prnject’s expected significant

impacts on the environment that must be described in an environmental impact report.

The Environmental and Fond Complaints Board has emphasized that it is described in the

environmental impact repnrt that dead seed was fnund in the area, just as it is described in the

environmental impact repnrt that there is an nccurrence nf cuckoo grass on a limestone meadow west

of the project area. tn this connection, the board has emphasized that, in connection with the project,

it has heefi asseased that there will be

flO

impact from the lime excess, cf. section

3.2.4.

ifl the opifliofi of the Eflviroflment and Food Complaints Board, it was oot necessary in the specific

case to carl) oot a doser assessmeflt of the short-leaved hair star or barn owl, as the project cafiflot be

assumed to have a sigflificant impact on the populatioo of the species in the area. in relation to the

bott-leaved hair star, the board has attached importafice to Horsefis Muflicipality’s ififormatiofi that

the extirpated alder trees will remaifi

ifl

the area and cao cofitinue to form a habitat for the bot-leaf

hair star. ifl relatiofi to barfi owis, the board has emphasized that

flO

boildings will be demolished or

trees felled

ifl

coflflectiofl with the project, which are so table for flestifig barn owis.

3.2.8 Ad 7) Alternatives

This appears from section

20,

sohsectioo of the Environmental Assessment Act.

no. 4, that the

environmental impact report i.a. must contain a description of the reasouable alternatives that the

developer has iflvestigated, which are relevaflt to the project aod its special characteristics, and an

indication of the maio reasons for the chosen solution, taking into accoofit the project’s effects

Ofi

the

environment. The environmental impact report must accordiog to appendix 7, poifit 3, cf. section

20,

sobsectioo s, also contain a description of the reievaot aspects of the current environmental status (the

referefice scenario or the

alternative) and a brief description of its likely development if the project is

not carried oot.

Accordifig to the practice of the Environmental and Food Compiaints Board, alternatives, inciuding

those proposed during the previous poblic dehate, must be dealt with more or less thoroughly. It is

sofficient that the overview of alternatives gives the public and politicians an opportonity to assess the

desired project

ifl

relation to other realistic alternatives. The decisive factor is s’hether the flecessary

hasis for a decisiofi can be said to have been provided. Thus, it cannot be required that an in-depth

analysis of (ali) other alternatives be carried oot.[89]

The Environment and Food Complaints Board finds

flO

basis for overriding Horsens Municipality’s

assessment pursoaflt to section

24,

subsection of the Environmental Assessment Act. s, according to

which the environmental impact report fuiflils the reqoiremeflts of the law as far as the description of

the iflvestigated reasoflabie alternatives is coficerfled.

The Environmental and Food Complaints Board has emphasized that the environmental impact report

contains a description of the reference scenario and the likeiv development of the area if the project is

flot carried out.

The Enviroflmentai and Food Compiaints Board has also emphasized that ten alternative alignments

are explained in the enviroflmentai impact report, incioding citizen proposals received in the dehate

phase, and that there is an initial assessment of the traffic effect of the proposals, and an overall

screening of the individoal proposals impact on natoral conditions, the landscape and cultural

conditions.

The Enviroflmefltai and Food Compiaiots Board notes that the board cannot take a decision on

whether a decision, incioding the choice between different alternatives, is appropriate, jost as the

hoard cannot take a decision nu whether,

ifl

connection with the decision to appiy for the conflection

road at the specific location irrelevant considerations are iucluded.

The environmental assessment niles do not in themseives determine limits

what aothorities can

decide for political, economic or other reasons, bot only set reqoiremeots for the basis for the decisions

and the procedores fot this

:;.

3.3 The Environnient and Food (‘omplaints Board’s other consments

3.3.1

The Water Frainework Direetive

The Environmental and Food Complainta Board nntes that Horsens Municipality should pay attention

to a renewed treatment to ensure that the projeet does not result in an additional supply of copper to

the watercourse. In this connection, the board also notes how there will not be a total additional supply

of copper to the watercourse as a result of the projeet, if it is documented that the sopply of copper

through road water is less than the reduction in the sopply of copper to the watercourse, which takes

place through other sonrces, including e.g. from agricultural land.

If this is not possible, the Environment and Food Complaints Board draws attention to the fact that the

project then only can he permitted if the derogation conditions in the Water Framework Directive are

met. 4 pcs. 7. The exemption provision has been insplemented in the environmental target order,

where it appears from section 4, subsection 3, that the minister, at the reqoest of an authority, has the

opportunitv, after a concrete assessment, to decide that the authority noder the circumstances and

conditions mentioned io subsection

and

may deviate from the estahlished environmental targets,

cf. sectioo 8 of the executive order.

The Environmental and Food Complaints I3oard draws attention to the fact that the board has not

herewith taken a decision on the conditions for deviating according to section 4, suhsection of the

Environmental Targets Executive Order. 3, is fulfilled.

The Environmental and Food Complaints Board also draws attention to the fact that in 8 of Horsens

Monicipality’s execntive order

requirements for the discharge of certain pollutants into streams,

lakes, transitional waters, coastal waters and sea areas, it is possihle to designate a mixing zone around

discharge points where the environmental quality reqoirements within this zone can he exceeded.[9o1

The board further notes that it is a prerequisite for determining a mixing zone that the discharge of

pollotants has previously been reduced as much as possible through the use of BAT, cf. section 5,

snbsection of the executive order.

and that the environmental quality requirements are not exceeded

outside the mixing zone. The latter must be ensured by calculation according to § 7, sobsection

cf.

subsection

3.3.2 Annex IV species

Bat

to the event of s renewed treatment, Horsens Municipality should carry out an assessment of whether

noise from the project in the construction phase in connection with the ramming of sheet piles can

affect Annex IV species ofbats, particularly during breeding periods. The Environment and Food

Complaints Board notes in this connection that the breeding periods of the various species are

described in the management plan for bats. If, in a renewed treatment, it is assessed that the impulse

noise may have a negative impact

breeding and roosting areas for bats, the municipality msy

consider setting conditions in the section

permit regarding when the framing of sheet piles may

take place.

3.4 Fee

Aa a result of the decision, the appeal fee paid will he reftinded, cf. section

order. 2,N0.

subsection of the fee

3.5 Decision of the Environmental and Food Consplaints Board

The Environment and Food Complaints Board revokes the decision of 54 Januaiy 2022 on the Seetion

permit for a new connecting road from the commercial area Vega to Horsens C and remands the

case for renewed consideration.

[i]

Legislative Decree No. 4 of 3 January

2023

on environmental assessment of plans and programs

and of specific projects (EIA).

[2]

Act No.

1715

of 27December2016 on the Envirbnmental and Food Complaints Board, as amended

by Act No.

900

Jnne

2022

on amendments to the Museums Act, Act on the Environmental and

Food Complaints Board and various other lawa.

[3]

Executive order no.

132

January

201700

fees for lodging complainta before the

Environmental and Food Cnmplaints Board, etc.

[]

Case no.

22/02909, 22/02917, 22/02922,

22/06815 and 22/06836.

[]

Case no.

22/02446, 22/02414

and

22/02410.

[6] Natura

2000

baseline analysis

2022-2027,

Bygholm Ådal.

[]

https://miljoegia.mim.dk/cbkort?&proflle=vandrammedirektiv2-bek-20t9.

[8] https://miljoegis.mim.dk/spatialmap?profile=vandrammedirektiv3hoering2o2s.

[]

tn the Environmental GIS for consultation of the water area plans

2021-2027,

environmentally

hazardous pollutanta are referred to as nationally specific subatanees.

[io] https://vandplandata.dk/vp3huering2o2s/vandumraade/vandloeb/ DKRIVER6647.

[si] Question no.

2t,

https://mst.dk/natur-vand/vand-i-hverdagen/spildevand/hvad-er-spidevand

og-hvorfor-renser-vi-det/spoergsmaal-og-svar- about environmental quality requirements/#G.

[12]

https://mst.dk/media/s25329/52-baggrundsniveau-for-barium-zine-kobber-nikkel-og-

vanadium-i-fersk-ug-havvand.pdf.

2019.

Habitats Direetive Artiele

repurting.

[13]

Conservation status uf habitat types and species

Aarhus University, DCE National Center fur Envirunment and EnerD’,

pp. Scientific repurt nu.

—

340.

[14] The eeology of the individual organism.

[ss] LCn value, lethal eoncentratiun, expressiun uf a chemical substance’s toxicity.

[16] Road Directorate, Road mIe: Fauna passages a guide: eonstruction and planning, August

2020.

[17] Amphibian Monitoring, DCE, TA Nu: A57, Version

2018.

[18] Danish Environmental Proteetion Agency,

2on7.

Noise from mads. Guidanee from the Danish

Environmental Protection Agency no. 4.

Environmental

[19]

Vejregelgruppen Drainage,

2020.

HANDBOOK Drainage constnictions

conditions and Authority application Constructiun and Planning. Rules of the road. December

2020.

[20] Vollertsen,

J., Hvitved-Jacobsen, T. Nielsen, A.H.,

2012.

Fact sheet nu dimensinning ofwet

rainwater basins. Aalborg University, August 2u52.

[21] Jensen, J.

Bak, J.L. 2018. Zinc and cupper in the aquatic environment. Sources, necurrence and

environmental significance. Aarhus University, DCE

National Center for Environment and EnerD’.

[22]

Cf.

Vollertsen,

J.,

Hvitved-Jacnbsen, T. Nielsen, A.H.,

2n52,

Faet sheet nu dimensioning ofwet

rainwater basius. Aalborg University, August 2u52, and Gregersen,

1.8.,

Rasmussen, 5.11, Madsen, 5. &

Arubjerg-Nielsen, K., Updating the spreadsheet for Skrift 3u (October 20t6), Regnrække Version

4.1,

SVK,

https://spildevaudskomiteen. dk/skrifters/.

[23]

Execotive

order no.

449

April

2019

nu action programs for watershed districts.

[24]

The Enviroumental Protection Agency’s guidance for the executive order on action programs for

watershed districts, July

2017,

https://mst.dk/media/s333us/bilag-s-vejleduiug-4-juli-2os7.pdf.

[25]

Danish Environmental Proteetion Agency,

2021,

draft questions and auswers ou discharge of

certain pollutauts intu the aquatie environment, questiou 43.

—

‘

.7,

[26] The jodgment of the Eoropean Coort of Jostice of 7 November 2018 in case C-461/17, Holohan,

and the judgment of the Eoropean Coort of Jostice of 16 Joly

2020

ifl case C-41t/19, Italia Onlos.

[27] Jodgment of the Eoropean Court of Justice of 4 March

2021 ifl

joint cases C-473/s9 and C-474/19,

Skydda Skogen.

[28] Execotive order no. 1376 of

June

2021

on environmental assessment of plans and programs

and of concrete projects.

[29]

Management plan for otter (lotra lutra) in Denmark, Forest and Nature Agency, 1996.

[30]

The Habitat Goidelines, guidance no.

9925

of 11November2020 for execotive order no.

1595

of 6

December 2018 on the designation and administration of international nature protection areas and the

protection of certain species.

[31]

Cf. the comments to

in proposal 144 to the Environmental and Food Complaints Board Act

(FT 2016-17).

[32]

Council Directive 92/43/EEC of

May

1992

on the conservation of natore and wild animals and

plants.

[]

Directive 2009/s47/EC of the Eoropean Parliament and of the Cooncil of

October

2009

on the

protection of wild birds.

[34] Directive 2000/60/EC of the Enropean Parliament and of the Cooncil of

October

2000

establishing a framework for Community water policy measnres.

[]

Judgment of the Eoropean Coort of Jostice of 28 May

2020

in case C-535/s8, Land Nordrhein

Westfalen, paragraph

90.

[36] Legislative Decree No. 126 of 26 Jannary

2017

on water planning.

[]

Legislative Decree no.

119

of 26 Janoary

2017

on environmental targets etc. for international

natore conservation areas.

[38] Execotive order no. 448 of 11April

2019

on environmental targets for sorface water areas and

gronndwater bodies.

[]

Executive order no. 449 of 11April

2019

on action programs for watershed districts.

[40] Goidance draft for the Act on environmental assessment of plans and programs and of concrete

projects (EIA) Concrete projects, Danish Environmental Protection Agency

2022,

section 3.

[41] Goideline no. 9627 of 6 Joly

2017 00

execotive order on action programs for water area districts,

section

8.1.2.

[42] Council Directive 92/43/EEC of

May

1992

on the conservation of natnre and wild animals and

plants.

[]

Execotive Order No.

2091

November

2021

on the designation and administration of

international natore conservation areas and the protection of certain speciel.

[44] See recital no.

of the EIA Directive.

[z]

Sec the commcnts to scction

no. 28 of the bill, regarding the amcndmcnt of section

of the

Environmental Assessment Act,

2020/1

1SF 56 of 8 Octobcr

2020.

[46] Jodgment of the European Coort of Josticc of

Joly

2015

in casc C-461/13, Wcscr, paragraph

51.

[4v] Judgment of the European Coort of Justice of

July

2015 ifl

case C-461/s3, Weser, paragraph 46.

[48] Sec the ]odgment of the Eoropean Coort of Jostice of

Joly

2015,

case C-461/

13,

Weser,

paragraphs 50 and 69.

[4] Jodgmcnt of the European Court of Justice of May

2022,

casc C-525/2o, Association France

Natore Environnement, paragraphs

and 45.

[sol

Jodgment of the Eoropean Coort of Josticc of 28 May

2020,

case C-535/18, Land Nordrhcin

Wcstfalen, paragraphs 94-96.

[511 Jodgmcnt of the Eoropcan Coort of Justice of 28 May

2020,

casc C-535/18, Land Nordrbein

Westfalcn, paragraphs 97-98.

[52]

Judgmcnt of the Enropcan Coort of Justice of 28 May

2020,

caae C-535/18, Land Nordrhein

Westfalen, paragraphs

100, 101

and 108.

[]

Directive

2006/118

December

2006

stipulates according to art.

specific measures to

prevent and control groondwater pollution, cf. art.

17,

subsection

and

of the water framework

directive. The quality requirements for groondwater are laid

down

in Annex

of the directive, cf. art. 3

pieces.

[54]

Judgment of the European Court of Justice of 28 May

2020,

case C-535/18, Land Nordrhein

Westfalen, paragraph

110.

[55] Judgment of the European

Court

of Justice of 28 May 2020, case C-535/18, Land Nordrhein

Westfalen, paragraph n8.

[6] Legislative Decree No. 126 of 26 January

2017

on the Water Planning Act.

[571

Executive Order No.

1625

Decemher

2017

on the determination of environmental targets for

streams, lakes, transition waters, coastal waters and groundwater.

[58] Elsewhere referred to as Part B, Tables 3 and 4.

[59] Thjs parameter is the environmental quality requirement expressed as an annual average (general

qoahty requirement).

[60] This parameter is the environmental quality requirement expressed as the highest permitted

concentration (maximum concentration).

[61] Section 4.6, condition assessment, environmentally hazardous pollutants,

https://mst.dk/media/ 122170/revideret-jylland-fyn-d-280620 i6.pdf.

[62] Section 4.3, measures for environmentally hazardous pollutants, purpose of the meastires and

general conditions surrounding implementation, https://mst.dk/media/ 133301/bilag-1-vejledning-4-

juli-20

17.pdf.

[63] Section 8.3.2, The environmental target has not been met, environmentally hazardous pollutants,

https://mst.dk/media/1333o1/bilag-i-vejledning-4-juhi-2017.pdf.

[64] See especially section 8.3.2 in Draft guidance for executive order on action programs for

watershed districts, December

2021,

https://mim.dk/media/225714/udkast-vejledning-til-

indsatsprogram-vp3 .pdf.

[65] Question no. 43 on how requirement values for a given substance in an outfall are determined

when environmental quality requirements for the substance have already been exceeded in the aquatic

environment, https://mst.dk/natur-vand/vand-i-hverdagen/spildevand/ what-is-wastewater-and

why-do-we-puri1’-it/questions-and-answers-about-environmental-quality-requirements/#G.

[66] Judgment of the Eoropean Court of Justice of 28 May

2020,

case C-535/18, Land Nordrhein

Westfalen, paragraphs 94-96.

[67] Judgment of the European Court of Justice of 28 May

2020,

case C-535/18, Land Nordrhein

Westfalen, e.g. items

and

101.

[68] Judgment of the European Court of Justice of 28 May

2020,

case C-535/18, Land Nordrhein

Westfalen, paragraph

100

[69] Judgment of the European Court of Justice of 28 May

2020,

case C-535/18, Land Nordrhein

Westfalen, paragraphs

101

and H8, and judgment of the European Court of Justice of May

2022,

case C-525/20, Association France Natore Environnement, paragraphs

and 45.

[70]

Judgment of the European Court of Justice of 28

May

2020,

case C-535/18, Land Nordrhein

Westfalen, paragraph

110.

[71] Judgment of the European Court of Justice of 28 May

2020,

case C-535/18, Land Nordrhein

Westfalen, paragraph

110.

[72] See case C-127/02 (Hjerte-Muslingejudgment), paragraph 6i, and paragraph

of the judgment.

[73]

See e.g. case C-4o4/o9, Commission vSpain, paragraph 99.

[74]

See the judgment of the European Court of Justice of

April

2013

in case C-258/11, Sweetman,

paragraph 48.

[75] The EU Commission’s announcement “Management of Natura

2000

sites The provisions of

Article 6 of the Habitats Directive 92/43/EEC”,

2018,

section 3.6.4.

[76] See the judgment of the European Court of Justice of 7 November 2018 ifl case C-461/17

(Holohan), paragraphs 37-40.

[77]

Sec eg. Judgment of the European Court of Justice of 26 April

2017 ifl

case

C-142/16

(Moorburg),

paragraph

29.

[78] Judgment of the European Court of Justice of 7 November

2018

in case C-46s/17 (Holohan)

paragraphs

41-47.

[j]

Guidance on the strict protection of animal species of Community importance under the Hahitats

Directive, Commission Communication of 12 October

2021,

C(2o2s) 7301

(hereafter EU Commission

Guidance).

[80] The EU Commission’s go dance, section

2.52-2.57.

[81] Guidance no. 48 to executive order no.

1595

of 6 Decemher 2018 on the designation and

administration of international nature conservation areas and the protection of certain species, Danish

Environmental Protection Agency, December

2020

(hereinafter the Danish Environmental Protection

Agency’s habitat guidance).

[82] The Environmental Protection Agency’s habitat guide, section

9.4.1.

[83] The Environmental Protection Agency’s hahitat guide, section

9.7.1.4

and the EU Commission’s

guidance point

2.52,

according to which the habitat directive’s articie

12,

subsection

letter d, should

be understood asa goal of maintaining the ecological function ofbreeding and resting areas.

[84] Cf. throughnut the Environmental Protection Agency’s habitat guidance, section 9.6.4-9.6.6.

[8] The EU Commission’s gnidance, seetion

2.73.

[86] Judgment of the European Conrt of Jnstice of 28 October

2021,

2nd section, case C-357/2n,

Magistrate der Stadt Wien (Grand hamster II), paragraph

52.

[87] The Danish Environmental Protection Agency’s guidance for executive order no.

1595

of 6

December

2018

on the designation and administration of international nature proteetion areas and the

protection of certain species.

[88] Management plan for bats. Protection and management of the

Danish hat species and their

habitats, The Norwegian Nature Agency,

2013,

p. 37.

[89]

Cf.

guidance on EtA in the planning act

(2009),

p. 57, on the practice of the former Nature

Conlplaints Board.

[go] Executive Order No.

1433

November

2017

on requirements for the discharge ofcertain

pollutants mIo streams, lakes, transitional waters, coastal waters and sea areas.

Case:

22/02461,

Date:

February

2023.

Subjects:

Environmental assessment of specific projects

To-do list:

Add to to-do list

Highlights:

Show/bide highlight

The Environment and Food Complaints Board

Nævnenes Hus

Toldboden

no.:

7240

CVR:

37795526

Availability Statensent

2•

8800 Viborg. Tel.

AKT 415448

[DK questions on deterioration in the WFD]

Dokument 3

[Aktdokument

[email protected] ([email protected])

Katrine Rafn ([email protected]), Paolo Perotti ([email protected]), Rikke Slot Benyahia ([email protected])

Cc:

Kirsten Vielwerth ([email protected])

Fra:

Titel: DK questions an deterioration in the WFD

Sendt: 16-05-2023 18:38

Bilag: Letter to COM with DK questions on deterioration.docx; Translation of Environmental and Food Board of Appeal

22-02461 w ad Astra.docx;

Dear Claudia, dear

Enciosed please find the Danish questions on the concept of deterioration in the Water Framework Directive as well as

the English translation of the ruling by the Environment and Food Board of Appeal.

We would appreciate it greatly if you could get back to us urgently, as ali permitting is put on hold for flow.

Kind regards,

Kirsten Vielwerth

Water and Climate Adaptation

Department of the Ministry of Environment

+45 41 28 16 761 [email protected]

Til:

Ministry

the Environment

Water and Climate Adaptation

Departement of the Ministry of Environment

Vester Voldgade 123 DK 1552 København V

Tlf. +45 38 142 142

www.mim.dk

Miljoministeriet

Aktdetaljer

Akttitel: Skriftlige spørgsmål til EU-Kommissionen om forringelse i

vandrammedirektivet

Aktnummer: 7

AktiD:

Dato:

Type:

Dokumenter:

412737

11-05-2023 16:24:32

Intern

[1] Cover retschefen

[2] Bilag i

[3] Bilag 2

IKKE)

Skriftlige spørgsmål til KOM om forringelse.docx

Letter to COM with questions on deterioration.docx (MEDTAGES IKKE)

Background note on non-deterioration under the WFD final ver2 with notes.docx (MEDTAGES

Den 20. februar 2024

AKT 412737

[Skriftlige spørgsmål til EU-Kommissionen om forringelse i vandrammedirektivet]

Dokumen...

Miljøministeriet

Depa rtementet

.1.

VAK havde et møde med EU-Kommissionen ved Head of Unit Claudia Olazabal og Kommissionens

fra DG Environment, Unit Ci Sustainable Freshwater

jurist på vandrammedirektivet,

Management den

10.

maj

2023.

Miljøministeriet

Aktdetaljer

Akttitel: Talking point meeting with COM on deterioration

Aktnummer: 6

Den 20. februar 2024

AktiD:

Dato:

Type:

Dokumenter:

411042

09-05-2023 16:20:08

Intern

[1] Bilag 3- ds01473.enl2.doc

[2] Background note on non-deterioration under the WFD final ver2.docx

[31

Talking

points.docx (MEDTAGES IKKE)

AKT 411042

[Talking point meeting with CCM on deterioration]

Dokument 1

[Bilag 3- ds01473.enl2

]

COUNCIL OF

THE EUROPEAN UNION

GENERAL SECRETARIAT

Brussels, 21 June 2012

DS 1473/12

Interinstitutional Elle:

2011/0429 (COD)

LIMITE

MEETING DOCUMENT

General Secretariat

from:

Working Party on the Environment

to:

2July2012

on:

Proposal for a Directive of the European Parliament and of the Council amending

Subject:

Directives 2000/60/EC and 2008/105/EC as regards priority substances in the

field of water policy

With a view to the Working Party meeting on 2 July 2012, delegations will find in Annex a non

paper of the Commission’s Services on the combined approach in the case of ubiquitous PBTs

(Article 8a of the above-mentioned proposal).

DS 1473/12

CM/nv

DGEIA

LIMITE

ANNEX

Commission non-paper

The application of the combined approach and the non-deterioration obligation:

the case of ubiquitous PBTs

Substances that behave as ubiguitous persistcnt, bioaccumulative and toxic (uPBTs)

The Commission proposal

identifies a number of substances as behaving as ubiquitous PBTs.

These ubiquitous substances, some of them capable of long-range transport, may be found for

decades in the aquatic environment at levels posing a significant risk, even ifextensive measures to

reduce or eliminate emissions have already been taken. Ali are identified as priority hazardous

substances, therefore subject to the aim that their emissions, discharges and losses to the aquatic

environment be phased out.

Examples ofthese substances are:

—

Polybrominated diphenylethers (pBDEs): used for many years as flame retardants in many

consumer, transport and construction products, some ofthem are identified as priority

hazardous substances under the WFD and are banned under REACH and the POPs regulation.

These substances are ubiquitous in the aquatic environment mainly due to leaching from

many products in use that contain them.

Mercury: a naturally occurring substance; measures have been taken that have resuited in

significant decreases ofemissions from anthropogenic uses to the aquatic environment over

the past two decades. Uses are still authorised (chlor-alkali industry, dental amalgam, etc.) but

progressively declining. Atmospheric deposition constitutes a main source ofaquatic

pollution in many areas of Europe (even remote).

The guestion

A question has been raised regarding application of the non-deterioration obligation and the

combined approach for uPBTs. The postulated problem is exemplified in the following statements,

which are discussed below in the context of broader explanation.

Statement 1: Any new authorisation of an urban waste water treatment plant (UWWTP)

would be against the obligation to prevent deterioration because any discharge will contain

some (even minute) quantities of ubiquitous priority hazardous substances (such as pBDEs or

mercury).

Statement 2: Even If a permit were given for a new waste water treatment plant, the emission

limit values for certain substances (such as pBDEs or mercury), resulting from back

caiculating from the proposed EQS, would be so strict that they would be unfeasible to meet.

60 19/12

Art.

2(5).

1473/12

ANNEX

CM/nv

DG E

IÀ

LIMITE

The obligation to prevent deterioration

Articie 4.1(a)(i) of the WFD requires Member States to take measures to prevent the deterioration

of the status of surface water bodies. There are two important elements in this obligation:

—

deterioration refers to status. As regards chemical status, this is defmed in WFD Article 2.24

and Annex V sectjon I .4.3. “Good’ chemical status is achieved when ali environmental

quality standards set at EV level are flot exceeded. If any ofthese EV standards are exceeded,

the status is ciassified as “failing to achieve good”.

status refers to a surface water body. Indeed, the water body, as defined in WFD Article 2.10

and delineated by Member States according to WFD Articie 5 and Annex II section 1.1,

constitutes the unit on which the assessment of status is carried out (see Articles 2.17, 2.18,

Annex V section 1.4.3).

Therefore, the deterioration of chemical status refers to a situation where the pollution ofa water

body increases from not exceeding any EQS set at EV level to exceeding one or more. This would

mean that the chemical status would deteriorate from “good” to “failing to achieve good”. The

obligation to prevent deterioration of chemical status refers to the change from good to failing to

achieve good at the water body level. It therefore does flot target specific individual discharges

causing local increases in pollution

Because both diffuse and point sources are responsible for the emissions of uPBTs, acting at the

ievel of ind ividual point sources would, in the case of most water bodies at least, flot achieve the

objective ofgood chemical status. And given the ubiquity and expected widcspread failure of the

EQSs ofthese substances, deterioration of status would flot be likely for uPBTs as most water

bodies should already be ciassified as failing to achieve good chemical status. It can in fact also be

argued that the construction ofa new collecting system and VWWTP would simply concentrate at

one point the discharges that previously came from a multitude of single waste water systems

(e.g. septic tanks). The emissions to the aquatic environment of pollutants such as mercury would

therefore flot increase, but rather globaily decrease due to the more advanced treatment at the new

UWWTP.

The combined approach

The combined approach in Article 10 of the WFD establishes a framework for emission controis

and quality objectives to work together in a coordinated way. Minimum controls are set in EV

legislation for the most significant emissions (from point and diffuse sources), but these should be

tightened where they are flot sufficient to meet the quality objectives. The ultimate purpose is to

ensure a high levet ofprotection of the aquatic environment whilst providing a level playing field

for the most significant emissions.

WFD Articie 10.3 provides that where the attainment ofa quality objective or standard requires

stricter conditions than those set by the legislation listed in WFD Articie 1 0.2, Member States need

to set more stringent emission controls accordingly.

In addition to the non-deterioration obligation in WFD Article 4.1(a)(i), WFD

Articie 4.1(a)(iv) and EQSD Article 3(3) protect agaifist increases of pollution at water body

level.

DS 1473/12

ANNEX

CM/nv

DG E IA

LIMITE

Whilst the approach can easily be applied where emission patterns are simple, complex patterns, for

example where both diffuse and point-source emissions are involved, may make it less easy to

apply. There is in any case no obligation to set emission limit values for ali substances in al!

discharges.

Ifl particular, it should be noted that Article 10.3 does not target specific individual discharges.

Member States can choose to apply the most effective measures to achieve the WFD objectives.

They could decide that tightening the emission controls on individual discharges (such as

discharges from UWWTPs) for a particular substance would flot be effective in addressing the

pollution problem (and thus the WFD objectives), and decide to address the pollution at its primary

source instead of”end-ofpipe’.

The source control measures already taken and/or in the pipeline for uPBTs (such as bans and

restrictions on use) will ensure that their emissions progressively declinc at the level of the river

basins and water bodies. Ultimately, the source control measures will reduce ali emissions (diffuse

and point source), including from urban waste water.

It should also be noted that there is no obligation to back-calculate emission limit values from EQS.

This is particularly the case with biota standards for bioaccumulative substances such as mercury,

where back-calculation would result in very low EQS for water because of high uncertainty.

The obligations referred to in the above paragraphs are of course without prejudice to the

application of the excmptions in WFD Articies 4.4 and 4.5 if the conditions therein apply.

DS 1473/12

ANEX

CM/nv

DG E i A

LIMITE

AKT 411042

[Talking point- meeting with CCM on deterioration]

Dokument 2

[

Background note on n...

Ministry of Environment

of Denmark

Department

Vand og Klimatilpasning

Case No 2023-4355

Ref. kirst, rurab, bketu, limni

May 8

2023

Background note on the obligation of non-deterioration

under the Water Framework Directive

The issue

Does

Articie 4 of the Water Framework Directive, as interpreted by the Court, allow for an

individual assessment of the significance of an addition of a substance to a specific water

body in order to establish if such addition constitutes “deterioration of the status”, when the

EQS for that substance has already been exceeded and the water body has thus been

ciassified in the lowest class?

Background

In February the Danish Environment and Food Board of Appeal ‘(the Board of Appeal) ruled

that .py additional impact on or discharge to a water body per se will constitute “deteriora

tion of status” if the quality element concerned is already in the lowest class.

The Board of Appeal based its reasoning on

C-461/13, C-535/18 and C-525/2o.

The European

Court of Justice was not requested to give a preliminary ruling thereon.

According to The Board of Appeal’s ruling, any discharge of a substance to a waterbody must

be regarded as a ‘deterioration in the status’ of the water body contrary to Articie

4(1)

of the

Water Framework Directive when the EQS for that substance has already been exceeded and

the water body is thus in the lowest possible class. The Board of Appeal emphasized that the

amount of the substance is not decisive when the EQS has already been exceeded, as any

additional amount will result in deterioration.

This leads to a situation where no individual assessment of the actual significance of an

addition of a substance to the specific water body shall be conducted. Thus, there is no

The Environment and Food Board of Appeal is an independent Danish Court-like institution within

the field of nature, environment, agriculture, fisheries and food. The rulings are binding for state and

local authorities’ administration and authorization of plans and projects.

Ministry of Environment

Frederiksholms Kanal

1220

Copenhagen K Denmark

Phone +4538

142142

CVR

12854358

EAN

5798000862005

mjm@mjmdk. vwwmim.dk

assessment of the actual effect on the quality element/EQS at water body level due to the

addition of that substance.

Hence, it will flot be possible to take the significance of the impact or discharge on the quality

element at water body level into account when it is already in the lowest class. A specific

individual discharge causing local pollution will constitute deterioration, without any

assessment of the significance of the effect.

It is the Ministry of Environment’s view that the Board of Appeal’s ruling is flot consistent

with the explanation of the obligation to prevent deterioration given in document DS

1473/12,

the Commission non-paper “The application of the combined approach and the

non-deterioration obligation: the case of ubiquitous PBTs’ when it comes to the leve! for

assessing2 if deterioration of status will occur.

The Ministry of Environment understands that the interpretation given by the Commission

in the above-mentioned non-paper is from

2012,

i.e. before the key rulings by the

ECJ

461/13, C-535/18, C-559/19 and C-525/2o).

Therefore, we wou!d like to know how the Commission views the deterioration issue now, i.e,

whether Article

(i)

a!lows for an individual assessment in the abovementioned situation.

1473/12,

The

obligation to prevent deterioration.

Articie 4.1(a)(i) of the

WFD

requires Member States to take measures to prevent deterioration of the status of

surface water bodies. There are

two

important elements in this obligation:

Deterioration refers to

As regards chemical status

the status is ciassified as failing to achieve

good”.

Status refers to a surface water body. Indeed, the water body, as defined in WFD Articie

2.10

and

delineated by Member States according to WFD Articie

and Annex II section

1.1,

constitute the unit on

which the assessment of status is carried out (see Articies

2.17,

2.18,

Annex V section

1.4.3).

Miljøministeriet

Aktdetaljer

Akttitel: Background note for the meeting on 10 May after the SCG

meeting

Aktnummer: 5

Akt ID:

Dato:

Type:

Dokumenter:

409659

08-05-2023 10:44:51

Udgående

[1] Background note for the meeting on 10 May after the SCG-meeting.eml

[2) Background note on non-deterioration under the WED final ver2.docx

[3] ds01473.enl2.doc

[4] RE: Request for a meeting re. the concept of deterioration in the WFD (MIM Id nr.: 397031 ).eml

Den 20. februar 2024

AKT 409659

[Background note for the meeting on 10 May after the SCG-meeting

Dokument I

[Bac...

Til:

Cc:

Katrine Rafn ([email protected]), Cecilie Spanner Rydeng ([email protected]), Rune Raun-Abildgaard

([email protected]), Lise Marie Johannessen ([email protected]), Benjamin Kelstrup Turner ([email protected]), Kirsten

Vielwerth ([email protected])

Kirsten Vielwerth ([email protected])

Fra:

Titel: Background note for the meeting an 10 May after the SCG-meeting

Sendt: 08-05-2023 10:44

Bilag: Background note an non-deterioration under the WFD final ver2.docx; ds01473.enl2.doc; RE: Request far a

meeting re. the concept of deterioration in the WFD (MIM Id nr.: 397031).eml;

Dear Claudia, dear

Enciosed, please find a background note on the topic we would like to focus an in the meeting an Wednesday.

As requested, I forward a link to the ruling by the Danish Environment and Food Board of Appeal. It is in Danish

sorry for that but hopefully you have access to better translation tools than me.

Link to the ruling by the Board:

Afgørelse

Miljø- og Fødevareklagenævnet (naevneneshus.dk)

Both Katrine Rafn and I are looking forward to meeting you.

Kind regards, Kirsten

Med venlig hilsen

Kirsten Vielwerth

Vand og Klimatilpasning

Miljøministeriets Departementet

+45 41 28 16 761 [email protected]

Miljøministeriet

Vand og Klimatilpasning

www.mim.dk

Miljøministeriets Departementet

Vester Voldgade 123

DK 1552 København V

Tlf. +45 38 142 142

AKT 409659

[

Background note for the meeting on 10 May after the SCG-meeting

]

Dokument 2

[Bac...

Ministry of Environment

of Denmark

Department

Vand og Klimatilpasning

Case No 2023-4355

Ref. kirst, rurab, bketu, limni

May 8

2023

Background note on the obligation of non-deterioration

under the Water Framework Directive

The issue

Does Articie 4 of the Water Framework Directive, as interpreted by the Court, allow for an

individual assessment of the significance of an addition of a substance to a specific water

body in order to establish if such addition constitutes “deterioration of the status”, when the

EQS for that substance has already been exceeded and the water body has thus been

ciassified in the lowest class?

Background

In February the Danish Environment and Food Board of Appeal ‘(the Board of Appeal) ruled

that .llY additional impact on or discharge to a water body per se will constitute “deteriora

tion of status” if the quality element concerned is already in the lowest class.

The Board of Appeal based its reasoning on

C-461/13, C-535/18

and

C-525/2o.

The European

Court of Justice was not requested to give a preliminary ruling thereon.

According to The Board of Appeal’s ruling, any discharge of a substance to a waterbody must

be regarded as a ‘deterioration in the status’ of the water body contrary to Article

4(1)

of the

Water Framework Directive when the EQS for that substance has already been exceeded and

the water body is thus in the lowest possible class. The Board of Appeal emphasized that the

amount of the substance is flot decisive when the EQS has already been exceeded, as any

additional amount will result in deterioration.

This leads to a situation where no individual assessment of the actual significance of an

addition of a substance to the specific water body shall be conducted. Thus, there is no

The Environment and Food Board of Appeal is an independent Danish Court-like institution within

the field of nature, environment, agriculture, fisheries and food. The rulings are binding for state and

local authorities’ administration and authorization of plans and projects.

Ministty of Environment Frederiksholms Kanal

•

1220

Copenhagen K Denmark

Phone +4538

14 2142

CVR

12854358

EAN

5798000862005

[email protected]. www.mimdk

assessment of the actual effect on the quality element/EQS at water body level due to the

addition of that substance.

Hence, it will flot be possible to take the significance of the impact or discharge on the quality

element at water body level into account when it is already in the lowest class. A specific

individual discharge causing local pollution will constitute deterioration, without any

assessment of the significance of the effect.

Tt is the Ministry of Environment’s view that the Board of Appeal’s ruling is flot consistent

with the explanation of the obligation to prevent deterioration given in document DS

1473/12,

the Commission non-paper “The applicatiorz of the combined approach and the

non-deterioration obligation: the case of ubiquitous PBTs’ when it comes to the level for

assessing2 if deterioration of status will occur.

The Ministry of Environment understands that the interpretation given by the Commission

in the above-mentioned non-paper is from

2012,

i.e. before the key rulings by the

ECJ (C

461/13, C-535/18, C-559/19

and

C-525/2o).

Therefore, we would like to know how the Commission views the deterioration issue now, i.e,

whether Article 4

(i)

allows for an individual assessment in the abovementioned situation.

1473/12,

p. : The obligation to yrevent deterioration.

Articie

4.1(a)(i) of

the

WFD

requires Member States to take measures to prevent deterioration of the status of

surface water bodies. There are

two

important elements in this obligation:

the status is classified as failing to achieve

Deterioration refers to

status.

As regards chemical status

good”.

Status refers to a surface water body. Indeed, the water body, as defined in

WFD

Articie

2.10

and

delineated by Member States according to WFD Articie 5 and Annex II section

1.1,

constitute the unit on

whjch

the

assessment of status is carried out (sec Articies

2.17, 2.18,

Annex V section

1.4.3).

AKT 409659

[Background note for the meeting on 10 May after the SCG-meeting

]

Dokument 3

[ds0...

COUNCIL OF

THE EUROPEAN UNION

GENERAL SECRETARIAT

Brussels, 21 June 2012

DS 1473/12

Interinstitutional File:

2011/0429 (COD)

LIMITE

MEETING DOCUMENT

from:

General Secretariat

Working Party on the Environment

to:

on:

2Ju1y20l2

Proposal for a Directive of the European Parliament and of the Council amending

Subject:

Directives 2000/60/EC and 2008/105/EC as regards priority substances in the

field of water policy

With a view to the Working Party meeting on 2 July 2012, delegations will find in Annex a non

paper of the Commission’s Services on the combined approach in the case ofubiquitous PBTs

(Articie 8a of the above-mentioned proposal).

DS 1473/12

CM/nv

bGE1A

LIMITE

ANNEX

Commission non-paper

The application of the combined approach and the non-deterioration obligation:

the case of ubiquitous PBTs

Substances that behave as ubiguitous persistent, bioaccumulative and toxic (uPBTs)

The Commission proposal identifies a number of substances as behaving as ubiquitous PBTs.

Thesc ubiquitous substances, some ofthem capable of long-range transport, may be found for

decades in the aquatic environment at levels posing a significant risk, even ifextcnsive measures to

reduce or eliminate emissions have already been taken. Ali are identified as priority hazardous

substances, therefore subject to the aim that their emissions, discharges and losses to the aquatic

environment be phased out.

Examples of these substances are:

—

Polybrominated diphenylethers (pBDEs): used for many years as flame retardants in many

consumer, transport and construction products, some ofthem are identified as priority

hazardous substances under the WFD and are banned under REACH and the POPs regulation.

These substances are ubiquitous in the aquatic environment mainly due to leaching from

many products in use that contain them.

Mercury: a naturaily occurring substance; measures have been taken that have resuited in

significant decreases ofemissions from anthropogenic uses to the aquatic environment over

the past two decades. Uses are still authorised (chlor-alkali industry, dental amalgam, etc.) but

progressively declining. Atmospheric deposition constitutes a main source ofaquatic

pollution in many areas of Europe (even remote).

The guestion

A question has been raised regarding application of the non-deterioration obligation and the

combined approach for uPBTs. The postulated problem is exemplified in the following statemerits,

which are discussed below in the context of broader explanation.

Statement 1: Any new authorisation of

an urban

waste

water treatment plant (UWWTP)

would be against the obligation to prevent deterioration because any discharge will contain

some (even minute) quantities of ubiquitous priority hazardous substances (such as pBDEs or

mercury).

Statement 2: Even If a permit were given for a new waste water treatment plant, the emission

limit values for certain substances (such as pBDEs or mercury), resulting from back

caiculating from the proposed EQS, would be so strict that they would be unfeasible to meet.

60 19/12

Art.

2(5).

CM/nv

DG E 1A

•2

DS 1473/12

ANNEX

LIMITE

The obligation to prevent deterioration

Articie 4.1(a)(i) of the WFD requires Member States to take measures to prevent the deterioration

of the status of surface water bodies. There are two important elements in this obligation:

—

•

—

deterioration refers to status. As regards chemical status, this is defined in WFD Article 2.24

and Annex V section 1.4.3. “Good’t chemical status is ach ieved when ali environmental

quality standards set at EU level are flot exceeded. If any ofthese EU standards are exceeded,

the status is ciassified as “failing to achieve good”.

status refers to a surface water body. Indeed, the water body, as defined in WFD Articie 2.10

and delineated by Member States according to WFD Articie 5 and Annex II section 1.1,

constitutes the unit on which the assessment of status is carried out (see Articies 2.17, 2.18,

Annex V section I .4.3).

Therefore, the deterioration of chemical status refers to a situation where the pollution ofa water

body increases from flot exceeding any EQS set at EU level to exceeding one or more. This would

mean that the chemical status would deteriorate from “good” to “failing to achieve good”. The

obligation to prevent deterioration of chemical status refers to the change from good to failing to

achieve good at the water body level. It therefore does flot target specific individual discharges

causing local increases in pollution

Because both diffuse and point sources are responsible for the emissions of uPBTs, acting at the

level ofindividual point sources would, in the case ofmost water bodies at least, flot achieve the

objective of good chemical status. And given the ubiquity and expected widespread failure of the

EQSs ofthese substances, deterioration of status would not be likely for uPBTs as most water

bodies should already be classified as failing to achieve good chemical status. It can in fact also be

argued that the construction ofa new collecting system and UWWTP would simply concentrate at

one point the discharges that previously came from a multitude of single waste water systems

(e.g. septic tanks). The emissions to the aquatic environment ofpollutants such as mercury would

therefore not increase, but rather globaily decrease due to the more advanced treatment at the new

UWWTP.

The combined approach

The combined approach in Articie 10 of the WFD establishes a framework for emission controls

and quality objectives to work together in a coordinated way. Minimum controls are set in EU

legislation for the most significant emissions (from point and diffuse sources), but these should be

tightened where they are flot sufficient to meet the quality objectives. The ultimate purpose is to

ensure a high level ofprotection of the aquatic environment whilst providing a level playing field

for the most significant emissions.

WFD Articie 10.3 provides that where the attainment ofa quality objective or standard requires

stricter conditions than those set by the legislation listed in WFD Article 10.2, Member States need

to set more stringent emission controls accordingly.

In addition to the non-deterioration obligation

iii

WFD Articie 4.l(a)(i), WFD

Article 4. I (a)(iv) and EQSD Article 3(3) protect against increases of pollution at water body

level.

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Whilst the approach can easily be applied where emission patterns are simple, complex patterns, for

example where both diffuse and point-source emissions are involved, may make it less easy to

apply. There is in any case no obligation to set emission limit values for ali substances in ali

discharges.

In particular, it should be noted that Articie 10.3 does not target specific individual discharges.

Member States can choose to apply the most effective measures to achieve the WFD objectives.

They could decide that tightening the emission controis on individual discharges (such as

discharges from UWWTPs) for a particular substance would flot be effective in addressing the

pollution problem (and thus the WFD objectives), and decide to address the pollution at its primary

source instead of”end-ofpipe”.

The source control measures already taken and/or in the pipeline for uPBTs (such as bans and

restrictions on use) will ensure that their emissions progressively decline at the level of the river

basins and water bodies. Ultimately, the source control measures will reduce ali emissions (diffuse

and point source), including from urban waste water.

It should also be noted that there is no obligation to back-caiculate emission limit values from EQS.

This is particularly the case with biota standards for bioaccumulative substances such as mercury,

where back-caiculation would result in very low EQS for water because of high uncertainty.

The obligations referred to in the above paragraphs are of course without prejudice to the

application of the exemptions in WFD Articles 4.4 and 4.5 if the conditions therein appiy.

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AKT 409659

[Background note for the meeting on 10 May after the SCG-meeting

]

Dokument 4

[RE_...

Til:

Cc:

[email protected] (Kirsten Vielwerth)

[email protected] (Katrine Rafn), [email protected] (Cecilie Spanner Rydeng),

OLAZABAL Claudia ([email protected])

Fra:

Titel: RE: Request for a meeting re. the concept of deterioration in the WFD (MIM ld nr.: 397031)

Sendt: 03-05-2023 16:56

Dear Kirsten

I can confirm that we can meet atter the SCG meeting. We will find a quite corner in the meeting building

for our discussion.

It would be very good to receive prior to that meeting the ruling of the national Environment and Food

Board of Appeal you refer too.

Thanks and I look forward to our conversation.

Best regards

Claudia Olazbal

From: Kirsten Vielwerth <[email protected]>

Sent: Friday, April 21, 2023 3:11 PM

To: OLAZABAL Claudia (ENV) <[email protected]>;

Cc: Kirsten Vielwerth <[email protected]>; Katrine Rafn <[email protected]>; Cecilie Spanner Rydeng

Subject: Request for a meeting re. the concept of deterioration in the WFD (MIM Id nr.: 397031)

Dear Claudia, dear

Would it be possible for you to schedule a short meeting (around 30 minutes) with us after the SCG-meeting 10

May, please? A different time around 10. 11. May could also be possible, If that would suit you better.

Danish participants will be Head of Division for Water and Climate Adaptation, Water Director Katrine Rafn, and

myself.

We would like to talk to you about Articie 4(1) of the WFD.

The urgency is due to our national Environment and Food Board of Appeal has issued a final ruling on

deterioration in light of the ECJ case law, that has raised doubt among the Danish authorities in relation to their

administration and permitting, e.g. in relation to big energy projects, etc.

We will be happy to send you a background note with more information in due time for a meeting.

Hope to hear from you soon.

Best regards,

Kirsten Vielwerth

Water and Climate Adaptation

Department of the Ministry of Environinent

+4541 28 16 761 [email protected]>

Ministry ol Environment

Water and Climate Adaptationi Department of the Environment Ministry

142 142

www.mim.dk

Vester Voldgade 123

DK 1552 Copenhagen V

Tlf. +45 38

Miljøministeriet

Aktdetaljer

Akttitel: Background note on non-deterioration

Aktnummer: 4

Akt ID:

Dato:

Type:

Dokumenter:

408775

04-05-2023 13:38:26

Intern

[1] Bilag 3- ds01473.enl2.doc

(2] Bilag 2

RE Request for a meeting re. the concept of deterioration in the WFD (MIM Id nr. 397031 ).msg

13]

Cover Retschef Background note on non-deterioration.docx (MEDTAGES IKKE)

[4] Bilag i

Background note on non-deterioration under the WED final.docx (MEDTAGES IKKE)

Den 20. februar 2024

AKT 408775

[

Background note on non-deterioration]== Dokument i

[Bilag 3- ds01473.enl2]

------

COUNCIL OF

THE EUROPEAN UNION

GENERAL SECRETARIAT

Brussels, 21 June 2012

DS 1473/12

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2011/0429 (COD)

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MEETING DOCUMENT

from:

General Secretariat

to:

Working Party on the Environment

on:

2July2012

Subject:

Proposal for a Directive of the European Parliament and of the Council amending

Directives 2000/60/EC and 2008/105/EC as regards priority substances in the

field of water policy

With a view to the Working Party meeting on 2 July 2012, delegations will find in Annex a non

paper of the Commission’s Services on the combined approach in the case of ubiquitous PBTs

(Articie 8a of the above-mentioned proposal).

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Commission non-paper

The application of the combined approach and the non-deterioration obligation:

the case of ubiquitous PBTs

Substances that behave as ubiguitous persistent, bioaccumulative and toxic (uPBTs)

The Commission proposal identifies a number of substances as behaving as ubiquitous PBTs.

Thcsc ubiquitous substances, some ofthem capable of long-range transport, may be found for

decades in the aquatic environment at levels posing a significant risk, even ifextensive measures to

reduce or eliminate emissions have already been taken. Ali are identified as priority hazardous

substances, therefore subject to the aim that their emissions, discharges and losses to the aquatic

environment be phased out.

Examples ofthese substances are:

—

Polybrominated diphenylethers (pBDEs): used for many years as flame retardants in many

consumer, transport and construction products, some ofthem are identified as priority

hazardous substances under the WFD and are banned under REACH and the POPs regulation.

These substances are ubiquitous in the aquatic environment mainly due to leaching from

many products in use that contain them.

Mercury: a naturally occurring substance; measures have been taken that have resulted in

significant decreases ofemissions from anthropogenic uses to the aquatic environment over

the past two decades. Uses are still authorised (chior-alkali industry, dental amalgam, etc.) but

progressively declining. Atmospheric deposition constitutes a main source ofaquatic

pollution in many areas of Europe (even remote).

The guestion

A question has been raised regarding application of the non-deterioration obligation and the

combined approach for uPBTs. The postulated problem is exemplified in the following statements,

which are discussed below in the context of broader explanation.

Statement 1: Any new authorisation of an urban waste water treatment plant (UWWTP)

would be against the obligation to prevent deterioration because any discharge will contain

some (even minute) quantities of ubiquitous priority hazardous substances (such as pBDEs or

mercury).

Statement 2: Even if a permit were given for a new waste water treatment plant, the emission

limit values for certain substances (such as pBDEs or mercury), resulting from back

caiculating from the proposed EQS, would be so strict that they would be unfeasible to meet.

6019/12-Art.2(5).

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The obligation to prevent deterioration

Articic 4.1(a)(i) of the WFD requires Member States to take measures to prevent the deterioration

of the status ofsurface water bodies. There are two important eiements in this obligation:

—

deterioration refers to status. As regards chemical status, this is defined in WFD Articie 2.24

and Annex V section 1.4.3. ‘tGood” chemical status is achieved when ali environmental

quality standards set at EU level are flot exceeded. If any ofthese EU standards are exceeded,

the status is ciassified as ‘failing to achieve good”.

status refers to a surface water body. Indeed, the water body, as defined in WFD Article 2.10

and delineated by Member States according to WFD Articie 5 and Annex II section 1.1,

constitutes the unit on which the assessment of status is carried out (see Articles 2.17, 2.18,

Annex V section 1.4.3).

Therefore, the deterioration of chemical status refers to a situation where the pollution ofa water

body increases from not exceeding any EQS set at EU level to exceeding one or more. This would

mean that the chemical status would deteriorate from “good” to “failing to achieve good”. The

obligation to prevent deterioration of chemical status refers to the change from good to failing to

achieve good at the water body level. It therefore does flot target specific individual discharges

causing local increases in pollution

Because both diffuse and point sources are responsible for the emissions of uPBTs, acting at the

level of individual point sources would, in the case of most water bodies at least, not achieve the

objective of good chemical status. And given the ubiquity and expected widespread failure of the

EQSs ofthese substances, deterioration of status would flot be likely for uPBTs as most water

bodies should already be classified as failing to achieve good chemical status. Tt can in fact also be

argued that the construction ofa new collecting system and UWWTP would simply concentrate at

one point the discharges that previously came from a multitude of single waste water systems

(e.g. septic tanks). The emissions to the aquatic environment ofpollutants such as mercury would

therefore not increase, but rather globally decrease due to the more advanced treatment at the new

UWWTP.

The combined approach

The combined approach in Article 10 of the WFD establishes a framework for emission controls

and quality objectives to work together in a coordinated way. Minimum controls are set in EU

legislation for the most significant emissions (from point and diffuse sources), but these should be

tightened where they are not sufficient to meet the quality objectives. The ultimate purpose is to

ensure a high level ofprotection of the aquatic environment whilst providing a level playing field

for the most significant emissions.

WFD Article 10.3 provides that where the attainment ofa quality objective or standard requires

stricter conditions than those set by the legislation listed in WFD Articie 10.2, Member States need

to set more stringent emission controls accordingly.

In addition to the non-deterioration obligation in WFD Articie 4.1(a)(i), WFD

Article 4.1(a)(iv) and EQSD Article 3(3) protect against iricreases of pollution at water body

level.

DS 1473/12

CM/nv

DGE IA

LIMITE

Whi!st the approach can easi!y be applied where emission patterns are simple, complex patterns, for

example where both diffuse and point-source emissions are involved, may make it less easy to

app!y. There is in any case no obligation to set emission limit values for ali substances in al!

discharges.

In particular, it should be noted that Articie 10.3 does flot target specific individual discharges.

Member States can choose to apply the most effective measures to achieve the WFD objectives.

They could decide that tightening the emission controls on individual discharges (such as

discharges from UWWTPs) for a particular substance would not be effective in addressing the

pollution problem (and thus the WFD objectives), and decide to address the pollution at its primary

source instead of ‘end-of pipe”.

The source control measures already taken and/or in the pipeline for uPBTs (such as bans and

restrictions on use) will ensure that their emissions progressively decline at the leve! of the river

basins and water bodies. Ultimately, the source control measures will reduce al! emissions (diffuse

and point source), inciuding from urban waste water.

It should also bc noted that there is no obligation to back-calculate emission limit values from EQS.

This is particularly the case with biota standards for bioaccumulative substances such as mercury,

where back-calculation would result in very low EQS for water because of high uncertainty.

The obligations referred to in the above paragraphs are of course without prejudice to the

app!ication of the exemptions in WFD Articles 4.4 and 4.5 if the conditions therein app!y.

DS 1473/12

ANNEX

CM/nv

DG E IA

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AKT 408775

[Background note on non-deterioration]

Dokument 2

[

Bilag 2 RE Request for a meetin...

Til:

Cc:

[email protected] (Kirsten Vielwerth)

[email protected] (Katrine Rafn), [email protected] (Cecilie Spanner Rydeng),

OLAZABAL Claudia ([email protected])

Fra:

Titel: RE: Request for a meeting re. the concept of deterioration in the WFD (MIM ld nr.: 397031)

Sendt: 03-05-2023 16:56

Dear Kirsten

I can confirm that we can meet after the SCG meeting. We will find a quite corner in the meeting building

for our discussion.

It would be very good to receive prior to that meeting the ruling of the national Environment and Food

Board of Appeal you refer too.

Thanks and I look forward to our conversation.

Best regards

Claudia Olazbal

From: Kirsten Vielwerth <[email protected]>

Sent: Friday, April 21, 2023 3:11 PM

To: OLAZABAL Claudia (ENV) <[email protected]>;

Cc: Kirsten Vielwerth <[email protected]>; Katrine Rafn <[email protected]>; Cecilie Spanner Rydeng

Subject: Request for a meeting re. the concept of deterioration in the WFD (MIM Id nr.: 397031)

Dear Claudia, dear

Would it be possible for you to schedule a short meeting (around 30 minutes) with us after the SCG-meeting 10

May, please? A different time around 10. 11. May could also be possible, if that would suit you better.

Danish participants will be Head of Division for Water and Climate Adaptation, Water Director Katrine Rafn, and

myseif.

We would like to talk to you about Article 4(1) of the WFD.

The urgency is due to our national Environment and Food Board of Appeal has issued a final ruling on

deterioration in light of the ECJ case law, that has raised doubt among the Danish authorities in relation to their

administration and permitting, e.g. in relation to big energy projects, etc.

We will be happy to send you a background note with more information in due time for a meeting.

Hope to hear from you soon.

Best regards,

Kirsten Vielwcrth

Water and Climate Adaptation Department of the Ministry of Environment

+45

41 28 16 76

[email protected]>

Ministry of Environment

Water and Climate Adaptationi Department of the Environment Ministry

142 142