The problem relates to ambiguities within two European Union directives in particular: the Wild Birds Directive and the wider ranging Habitats Directive, both of which aim to ensure that areas deemed special conservation areas are protected.

However, according to researchers, the directives have created an environment of confusion and uncertainty and have ultimately led to serious delays to dredging projects near environmentally sensitive sites, resulting in significant economic impact of 5 of the total investment costs.

To illustrate the nature of the problems faced, the authors of the paper told delegates attending the CEDA-organised conference of how the expansion of the Port of Rotterdam, the planning of which began in 1998, was delayed by two years due to ambiguities in the environmental assessment process.

It was explained that Project Mainport Rotterdam (PMR) had supported its plans to expand and improve the entire area with a preliminary environmental impact assessment in which the requirements of the directives were fully taken into account. But while the European Commission offered favourable opinion in 2003 which resulted in the Dutch government awarding a formal planning decision (PKB), its validity was challenged by a fisheries lobby group “on the grounds that it had not been sufficiently established that the effects [of the dredging operations] on larvae in the Waddensea were insignificant; consequently there might be an impact on fish stocks. The fisheries industry claimed that the impact assessment was not ‘appropriate’.”

The conflict carried on in the Dutch high court which sided with the fisheries industry and revoked part of the PKB. The main uncertainty in this case, suggested the authors, concerned the extent (in distance and time) of the required ‘appropriate’ assessment.

Another project that suffered substantial delay was the Port 2000 initiative at Le Havre. This resulted in a long running dispute between the European Commission and France on the obligation to designate large swathes of the Seine estuary as Special Protection Areas (SPA).

The EC considered that France had reserved far too much area for future industrial development and not enough for conservation purposes. In the end, environmental consideration had to be planned into the development – mudflats, bird sanctuaries etc, which delayed the project considerably and absorbed additional investment.

Several port development projects have met similar obstacles of having to develop nature reserves under the terms of the contentious Article 6 on compensation in the Habitats Directive. Cost of compensation typically ranges from 5 of the total investment, says the paper. But the potential for other delays exists due to differing interpretations and poor implementation of the directives by authorities.

EU legislation under development could further cloud the already opaque Habitats Directive, suggest the authors of the paper. The Water Framework Directive falls under scrutiny, while others such as the EU Transport Policy could contain conflicting requirements. This places emphasis on the promotion of waterborne transport while the EU Environmental policy fails to promote comprehensive transport solutions.

“Therefore, and while keeping in mind the expected growth in container transport, with the resulting port congestion, decision-making processes need to improve. The plea of the sector to speed up planning and approval procedures is not aimed at ignoring environmental concerns. The port and dredging community does not put into question the objectives of the Birds and Habitats Directives. Many projects have demonstrated that ports are willing to go even beyond legal requirements to meet environmental concerns. The only demand is to provide in turn for more legal certainty,” the conference delegates were told.

Guidance documents, both from the European institutions and from the industry, were slated for their insufficiency while emphasis was placed on procedural fine-tuning to avoid the excesses of a zealous interpretation of the Habitats Directive. A framework for cooperation between project developers and environmental groups should also be enforced, stated the authors.

Other solutions put forward for consideration included enforceable legal agreements between different stakeholders. This, it was thought, could reduce the possibility of procedural challenges and the resultant delays, although whether or not further action at EU level is desirable or if there is a case for a revision of the procedures under the Habitats Directive were questions left open for debate.

Until then, there are guidelines published by the European Seaports Organisation (ESPO) that Port Authorities can refer to in order to plan ahead with greater clarity. In relation to Article 6.3, which states: Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, shall be subject to appropriate assessment of its implications for the site’s conservation objectives. In the light of the conclusions the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned… the ESPO advises: an early screening exercise for environmental impact prior to the appropriate assessment; the involvement of stakeholders, including environmental non-governmental organisations, at an early stage and to create a platform for regular consultation; and the availability of scientific data needed for further impact assessment.

As for the Article 6.4 clause - If in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the member state shall take compensatory measures necessary to ensure that the overall coherence of ‘Natura 2000’ is protected. It shall inform the Commission of the compensatory measures adopted - it is advised that an assessment of alternatives is wide-ranging.

Port Authorities should also ensure that economic and social considerations are clearly stated in the light of public interest and in the case of compensation: establish early informal contact with the European Commission; establish a generous compensation package which keeps the Natura 2000 network intact; and explore the possibility of compensation by enhancing the ecological value of existing SPA sites.

ESPO also suggests the development of an environmental management plan for the port, port access and affected Natura 2000 sites and to ensure that the needs of port maintenance operations, including maintenance dredging, are recognised.