Damage is defined in ELD as “measurable adverse change in a natural resource or measurable impairment of a natural resource service with may occur directly or indirectly”. The occurrence of damage does not trigger obligations, however, according to the EU COM Notice, the understanding of the term damage is material to understanding environmental damage.
The Notice outlines the four concepts in the definition of “damage” as:
1. The material scope of what is affected – a natural resource or service. The natural resources are further defined in ELD as protected species and natural habitats, water and land. Natural resource services means “the functions performed by a natural resource for the benefit of another natural resource or the public”.
2. Adverse effects – adverse change or impairment of the natural resource itself and the natural resource service. Adverse effects for each type of environmental damage are listed in the Notice with reference to certain concepts, referred therein as “reference concepts” (see par 3.1 above), many of which are referred or alluded to in Annex I and Annex II of ELD. The concept of “damage” is not self-standing and needs to be read in the light of the definition of “environmental damage”. Hence, for example, the impairment of the services that water provides must, therefore, be accompanied by significant adverse effects on the status of the waters concerned.
3. Scope of the adverse effects – the adverse change or impairment must be measurable.
4. Ways in which the adverse effects occur – directly or indirectly, e.g. the direct application of a pollutant to or into land which results in a significant risk to human health, or the dispersal of an air-borne pollutant to land which then poses a significant risk to human health indirectly.
These reference concepts are included in the relevant tables of IMPACT and STATE of this Practical Guide for assessing the clues of environmental damage.