What can I do to make sure that nitrogen issues are not getting in the way of my construction project?

Updated to 18-10-2019

Almost every construction project causes nitrogen emissions and deposition. If that nitrogen deposition occurs on a Natura 2000 area, the construction project requires a permit under the Nature Protection Act (Wnb). However, the strict conditions and high research burden mean that a construction project would rather not require a Wnb permit. This is only the case if significant effects on nitrogen-sensitive habitat types in Natura 2000 areas can be excluded in advance with scientific certainty. If these effects cannot be excluded, a permit may still be granted on the basis of a Passive Assessment or by means of an ADC test. In this Nitrogen test for construction projects we explain how you can quickly assess whether you need a Wnb permit and which knobs you can turn to avoid the permit obligation. Because the permit obligation cannot always be avoided, we also explain how a Wnb permit can be obtained.    

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Roadmap nitrogen construction projects

Preliminary phase: 10 km

• Determine the distance of the construction project from nearby Natura 2000 sites that include nitrogen-sensitive habitat types. (This distance determination can easily be done using the site https://www.synbiosys.alterra.nl/natura2000/googlemapszoek2.aspx). If the distance is greater than 10 kilometers, for the vast majority of projects it can be concluded that significant effects on nitrogen sensitive habitat types in Natura 2000 areas can be excluded beforehand. For smaller projects, significant effects on nitrogen-sensitive habitat types can be excluded even at a shorter distance. A simple calculation (see below) will confirm this.

 Preliminary assessment (1): calculate deposition of 0,00 mol/ha/yr.

• If a Natura 2000 site is closer by, investigate where in the nearest Natura 2000 site nitrogen sensitive habitat types are located. If these are located at a considerable distance from the Natura 2000 site boundary, the situation may still be such that significant effects can be ruled out beforehand. The following calculation should then confirm this.
• Establish input data for an AERIUS calculation separately for both the realization phase and the operation phase. For the realization phase it concerns construction cranes, chain, aggregates, traffic movements of suppliers and personnel, etc. For the realization phase, it concerns installations and traffic movements caused by the new activity. [1]
  Using AERIUS, calculate the nitrogen deposition on the nearest nitrogen-sensitive habitat types. If the result is 0.00 mol per hectare per year, the conclusion can be drawn that significant effects on nitrogen-sensitive habitat types in Natura 2000 areas can be ruled out beforehand.
• Examples: a modern distribution center with a built-up area of 30,000 m2 may already result in a deposition of 0.00 mol per hectare per year at a distance of 5 km, some 50 houses (gasless) even within 1.5 km.

Preliminary assessment (2): adaptation of input data.

• If the outcome of Preliminary Test (1) is greater than a 0.00 mol per hectare per year, but not significantly greater, consider whether adaptation of the construction project is a possibility. (Example in the construction phase: replace generators and other diesel-driven engines with an electric supply, set requirements for or limit the arrival and departure of personnel and suppliers; for the operation phase: build gas-free, assume electric forklifts and the most modern means of transport, limit the arrival and departure of personnel, optimize the arrival/disposal routes of residents, etc.).
• If the result is still 0.00 mol per hectare per year, the conclusion can still be drawn that significant effects on nitrogen-sensitive habitat types in Natura 2000 areas can be ruled out in advance.

If the outcome is positive, the conclusion can be drawn that no permit is required under the Wnb and the building project can be permitted and realized. It may be wise to apply for a permit anyway, in order for the competent authority to conclude, based on the preliminary assessment, that no permit is required.

Assessment (3): internal netting

• If previous steps do not have the desired result: investigate internal netting options now.
• For this, compare the outcome using the input data for the exploitation phase with the outcome using the input data in the "existing situation. For the existing situation, it must be a legal, licensed or reported situation at the time of designation of the Natura 2000 site (often 2004 or 1994, but sometimes later), which has subsequently been continued or (if discontinued in the meantime) could be immediately resumed without nature consent.
  • Example 1: expansion/replacement of a new transport company: at the time of designation of the Natura 2000 site in 2004, internal transport took place with ten diesel forklifts, supply and removal by sixty diesel trucks (Euro 3 and 4). In the new situation, the transport company will expand significantly, but the diesel forklifts will be replaced by electric forklifts. The fleet will consist of ten trucks (Euro 4) and two hundred trucks (Euro 6).
  • Example 2: renovation building complex with an expansion of a few homes: replacing the gas-fired systems with a WKO, also for the existing complex, can create enough space to allow for the additional traffic movements due to the expansion of the number of homes.

The expansions provide a reduction in nitrogen deposition through internal offsetting.[2]

• Internal netting requires securing that the activities involved in netting are actually terminated. Internal netting can only involve activities that are legal and actually present. Unused permit space cannot be included in netting. Netting with agricultural activities is subject to additional conditions. Customization is required here. [3]
• If, on balance, no more than 0.00 mol per hectare per year of nitrogen deposition is added on nitrogen-sensitive habitat types in Natura 2000 areas, the conclusion can be drawn that significant effects are excluded. The provincial policy rules assume that a permit is applied for and can then be granted.

Assessment (4): preliminary ecological assessment

• If the result is nevertheless higher, albeit small, consult an ecologist whether a scientific justification can be given that significant effects on nitrogen-sensitive habitat types can be ruled out despite the small deposition increase. In special cases, the ecologist can provide scientific justification, based in part on the conservation objectives for the Natura 2000 site in question and the current situation for nitrogen-sensitive habitat types.

If the outcome of these assessments is positive, the conclusion is that, on balance, significant effects on nitrogen-sensitive habitat types in Natura 2000 areas can be ruled out beforehand. The conclusion can then be that no permit is required under the Wnb, or that the permit can be granted without further ado. According to the legislator, a permit under the Wnb must be applied for to ensure that the outcome is accepted by the competent authority.

If the outcome of the assessment is that significant effects on nitrogen-sensitive habitat types in Natura 2000 areas cannot be excluded in advance, this leads to the conclusion that an appropriate assessment is required.

Passive assessment (1): favorable conservation status

• The appropriate assessment must lead to the conclusion that, despite the (small) increase in nitrogen deposition on nitrogen-sensitive habitat types, the natural characteristics of the Natura 2000 site will not be affected.
• To this end, first determine the conservation status of (the relevant habitat types in) the Natura 2000 site. This may include the positive effects of conservation and preventive measures as well as autonomous developments.
• If the outcome is a favorable conservation status, the Wnb permit can be granted.

Passive assessment (2): mitigate

• If the conservation status is not favorable, it must be determined whether protection and/or mitigation measures will provide a favorable conservation status.
• If a measure is aimed at restoring or improving the effects caused by the project on nitrogen-sensitive habitat types and the measure is directly related to the construction project and the measure is not already provided for in a management plan, then it is a conservation measure or mitigation measure. The positive effect of the measure must be established.

Appropriate assessment (3): external netting

• If the conservation status is not favorable and protection or mitigation measures are insufficient, external balancing can be invoked in the appropriate assessment.
• Also for external offsetting, the positive effect on the nitrogen-sensitive area that is more heavily burdened by the construction project must be established. External offsetting involves surrendering existing (permit) rights to such an extent that, on balance, the nitrogen deposition does not increase, calculated to the date of designation of the Natura 2000 area. Note that external netting is subject to strict requirements, recently laid down in provincial policy rules. Buying a permit from a stopped or ceasing farmer is not a solution in all cases.

If it follows from the appropriate assessment that it cannot be excluded that the natural characteristics of the Natura 2000 site will be affected, one possibility remains.

ADC key:

• Investigate whether alternatives exist, both in terms of location and the purpose and specific implementation of the project. (In the case of a 200-home housing project: can't I build those homes somewhere else or can I meet housing needs in some other way?)
• Investigate whether there is an compelling reason of overriding public interest that makes it necessary to realize the project. (employment, public housing, public health, national economic interests, traffic safety, sustainability). If one or more of these aspects are served, one can speak of compelling reasons of major public interest. A recent example is the widening of the Kempenbaan in Veldhoven, intended to solve structural traffic congestion.
• Investigate what compensatory measures will be taken to eliminate the negative effects of the project on the conservation objective of the Natura 2000 site. Creation of new habitat types (with or without expansion of the Natura 2000 site).
• The ADC test seems to be a huge threshold, but the bottom line is that the smaller the encroachment on natural values, the lower the requirements for the alternatives study and the compelling reason of overriding public interest. Because the encroachment of construction projects at some distance from Natura 2000 areas will usually not be very great, this relief from the test may be used more often than thought.

[1] We now have a new version of Aerius. In special situations, Stacks-D is still calculated even now.

[2] The calculation examples are fictitious

[3] See provincial policy rules https://www.bij12.nl/wp-content/uploads/2019/10/beleidsregels-salderen.pdf (also for external netting)