Environmental damage is defined in the ELD in terms of damage to protected species and natural habitats, water damage and land damage. Central to these definitions, and absent from the definition of damage, is the concept of significance. Measures for the immediate management of damage factors, or remedial measures are only required in the ELD where adverse effects are found to be significant. Measures to prevent environmental damage are only required when adverse effects are becoming or are expected to become significant. The EU COM Notice list several considerations which should be applied to ensure a common understanding for the assessment of significance, including the circumstances in which the need for assessment of significance arises, the purpose of the assessment of significance, legal responsibilities regarding the carrying out of the assessment, the context(s) in which the assessment is to be carried out, the focus of the assessment, the carrying out of the assessment and the determination of significance1.
The Notice states that “The importance of effects does not necessarily depend on their being present on a large scale. The concept of what is “significant” is related to the notion of measurable adverse changes and impairments found in the definition of “damage” 2.
Each type of environmental damage, protected species and natural habitats, water, and land, is discussed in the Notice in terms of the material and geographical scope of the natural resource or service concerned, reference concepts for adverse effects on that natural resource or service, and the assessment of significance.
It should be noted that an impairment of a natural resource service, in the absence of a significant adverse effect on the natural resource, does not constitute environmental damage under the ELD 3.
2 Paragraph 78 of the EU COM Notice.
3 Paragraph 146 of the EU COM Notice.