Environmental impact assessment (EIA) under the Environment Act: we can't make it more fun, but we can make it (slightly) easier

The purpose of environmental impact assessment (EIA) regulations is to give environmental concerns a full place in decision-making. In the development and realization of projects of any size, EIA regulations therefore soon play a role. That is the case now and it will be no different under the Environment Act. Procedurally, however, some things will change.

With the upcoming entry into force of the Environment Act (likely on Jan. 1, 2023), we are also informing you about the consequences this year. Previously, we wrote articles about the environmental plan, fees under the Environment Act, flexibility and procedures under the Environment Act, the Built Environment Decree, the technical construction activity, coordination under the Environment Act, the changed system for an application for a review of the environmental plan, steering possibilities, the transitional law and the major consequences of the Omgevingswet for plan damage, for example because of the new assessment for indirect plan damage and the fixed percentage for the normal social risk, soil (contamination) in the Environment Act and the changes for "environmentally harmful activities" under the Environment Act.

In this article, we look at the changes relevant to builders and developers regarding EIA regulations.

EIA decision as a stumbling block of the bread-and-butter rule

Virtually any development of any size qualifies as an "urban development project. Consider the construction of homes, offices, commercial buildings, vacation parks, etc. Consequently, this is the category that builders and developers face the most. 

Several rulings have been made in recent years on environmental permits for urban transformations, among other things. At issue was whether this is an 'urban development project'. If that is the case, an EIR assessment (whether or not form-free) must be made pursuant to the EIR Decree.

Proper procedure?

At stake in the proceedings is not so much the protection of the environment, but whether the correct procedure was followed. In fact, the permits were granted with the application of the bread-and-butter regulations of Article 4 of Annex II of the Environmental Law Decree (Bor). However, Section 5 states that - in short - the bread-and-butter regulation for transformations and temporary deviations cannot be applied if there is an activity listed in the EIR Decree. If the conclusion is that this is an urban development project, this leads to annulment of the cramped environmental permit. Decision-making must then take place again with the application of the lengthy, extended procedure, logically resulting in a long delay.

Good news

This discussion will no longer be held under the Environment Act. In principle, environmental permits will go through the regular procedure, even if the activity is subject to an EIA assessment. That is the first piece of good news.

Project EIA Assessment

The EIA assessment obligation does remain, namely for the same categories of activities as listed in the EIA Decree. Under the Environment Act, however, these will become categories of projects. The designated categories of projects for which an EIA assessment is mandatory are listed in Annex V of the Environment Decree (replacement of the Annex to the EIA Decree). These are the projects listed in column 1 in cases listed in column 3.

Below are some examples for clarification, involving a decision as mentioned in column 4. It is important to note that in column 4 'the environmental plan' also means 'the environmental plan activity' (Art. 11.6(3) Ob).

Thus, the urban development project is still subject to EIA assessment if it is made possible by an environmental plan or an environmental plan activity and regardless of its size (the threshold values have been dropped). Thus, the case law on the question of the lower threshold above which an urban development project exists remains relevant.

EIA assessment procedure

The current distinction between the form-free and formal EIA assessment requirements will be dropped so that there is one procedure. This will therefore also be more unambiguous. That procedure is as follows.

The initiator of a project designated in Appendix V must notify the competent authority (usually the Municipal Executive) (Art. 16.45 para. 1 Ob). The notification is similar to the current notification memorandum and must contain a description of the project, the location and the possible environmental effects (Art. 11.10 of the Environmental Management Act). It is obvious to submit this notice at the same time as the application for an environmental permit. The competent authority decides within six weeks whether there are significant environmental effects and includes that assessment in the environmental permit to be granted (11.11 Ob).

Thus, unlike now, the EIA assessment will become part of the environmental permit, rather than a separate and separately published EIA assessment decision. This, too, is an improvement. If it appears that significant environmental effects are to be expected, the permit will be refused (Art. 16.49 section 4 Ow). It is then necessary to submit a new application for the project, accompanied by an environmental impact report.

Project EIA requirement

If it is judged that significant environmental impacts are to be expected, a project EIA must be carried out. This obligation also applies (without prior EIA assessment) to the projects listed in column 1 of Appendix V for which a decision mentioned in column 4 (environmental plan or environmental plan activity permit) is required and where the threshold values mentioned in column 2 are exceeded. This is not likely to be the case for urban developments such as housing and offices.

Project EIA requirement procedure

An EIR obligation leads to application of the extensive preparation procedure (Art. 16.50 Ow). An initiator may ask the competent authority for advice on the scope and detail level of the environmental impact report to be drawn up (Art. 16.46 Ow). This is not an obligation. Furthermore, the competent authority may request the EIA Committee to issue an opinion on the (draft) EIA (Art. 16.47 Ow). Ultimately, the competent authority takes a decision with due consideration of the EIR.

Plan EIA requirement

The Environment Act designates an environmental plan as a "plan" or "program" that may be subject to a plan EIA requirement. This is therefore different from a project EIA obligation. The difference between a plan EIA obligation and a project EIA obligation lies in the framework setting nature of the environmental plan. If the environmental plan directly enables activities listed in Appendix V as requiring an EIR, there is a project EIR obligation. If these activities are only indirectly enabled, for example because they first require a permit for an environmental plan activity, the plan is a framework plan. In that case, the plan EIA obligation applies.  

It is up to the competent authority to go through the plan EIA procedure. We will not discuss that further here, but it is broadly similar to the current pocedure.

No longer EIA requirement for appropriate assessment

Previously, if a zoning plan required an appropriate assessment under the Nature Conservation Act, by definition an EIR plan had to be prepared. This could therefore also be the case if the development did not actually involve much, but it caused an increase of 0.01 mole of nitrogen per hectare in a Natura 2000 area.

Under the Environment Act, this is usually no longer an issue. It provides that if the plan relates to the use of small areas at the local level, or for minor amendments to such a plan, it is only necessary to assess whether the plan has significant environmental effects. Only if that assessment shows that there are such effects must an EIR be drawn up (Art. 16.36 sections 3 and 5 Ow).

This is another improvement, which, by the way, has been included in Article 3 of the EIA Decree since December 2020.

Transitional law

In principle, the new EIA regulations have immediate effect. However, EIR regulations are often linked to (applications for) environmental permits and zoning plans. For these, the starting point is that the old law continues to apply if an application was made before the Environment Act entered into force (for environmental permits) or a draft decision was made available for inspection (for zoning plans).

Simple better?

EIA material remains tough stuff for those who prefer to deal with building homes or developing business sites. Yet it seems that more often an EIA assessment will suffice. Moreover, procedures are more streamlined. So, to stay in the mantra of the Environment Act, here is (something) simple(er) and better.

Simple is also only relative in this context, so are you a builder or developer and can't figure it out? Contact us using the form below. We are here for you.