Compensation is intended to be the final step in the mitigation hierarchy and is often where the most energy is concentrated, both from a scientific and technical research perspective but also when carrying out implementation. This focus on the last step is a risk to the achievement of NNL as several problems exist with the implementation of offset measures.
This section provides an overview of some of the key issues faced by compensation measures.
Compensation measure uncertainty
Due to the uncertainty around the assessment of the residual impact to be compensated and the gains that can be expected by compensation measures, designing such measures remains an important challenge. Many compensation measures remain experimental and do not always rely on strong scientific or technical knowledge, such as renaturalisation processes (see Chapter 5 – Solutions to mitigate impacts and benefit nature). Moreover, some experimental restoration measures can be categorized as accompaniment, depending on the level of uncertainty associated with their success. To manage this uncertainty, transparent discussions with regulators and compensation operators are needed from the early stages (project planning), to explore the acceptability and chances of success of compensation measures.
Land availability and conflicts of use
Compensation usually requires the provision of land for restoration or protection measures. Deploying land in this way can produce conflicts with landowners or local authorities (i.e., aiming for other development projects for instance). These conflicts of land use must be integrated within the design of compensation, to ensure feasibility and longevity of these measures.
Transparency, consultation, and cooperation are key to generate acceptability and counter any conflict of use issues. To be successful, consultation must continue for the entirety of the assessment and implementation of the mitigation hierarchy and be executed in a transparent context, allowing the stakeholders to be fully involved in the decision-making process.
Implementation of compensation measures
In practice, many compensation measures are either not implemented by the operators or implemented with a significant deviation from the original design proposals in the EIA. This difference in implementation raises some major challenges for the efficiency of the compensation mechanism. The time lag between the impact and the implementation of the compensation measure is also a major issue. To tackle this issue, compensation measures should be initiated before any impact occurs.
Feasibility of compensation measures
Any compensation measure based on a restoration action must be feasible. This includes experimental proposals which may be considered as compensation measures and part of the balance of NNL and NG but really should be categorised as accompaniment. In some cases, restoration processes would generate a negative balance compared to the initial state of environment. For example, some sandy marine surfaces are common and complex to compensate due to technical issues; restoration that consists in removing rocks or human made solid elements under the sea level would also generate a negative balance of the restoration process. In this case, Member States should provide practitioners with clear guidelines of how to manage these complex cases.
Some biodiversity elements are irreplaceable and cannot be restored or re-created. For example, species or habitats that only occur in one of very few sites globally, unique nesting or breeding sites, or ancient natural monuments. Compensation based on restoration should therefore not be considered for these cases and such habitats must remain free of development.