On 23 December 2016, a draft of the amendment to the Environment Impact Assessment (EIA) Act (no. 100/2001 Coll.,) was submitted to the Chamber of Deputies of the Parliament of the Czech Republic. The amendment is considered an implementation of the Directive amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment. Although the amendment to the directive was quite extensive and provided higher requirements for the EIA procedure, the Czech act to a large extent does not reflect these stricter requirements. This is because the requirements for a Czech environmental impact assessment are much stricter than those laid down by the original directive and its amendment. The transposition amendment was passed in order to partially mitigate the requirements of the EIA procedure and set the directive’s requirements in line with the requirements of the Czech EIA Act, so that Czech law no longer determines an EIA procedure that is unnecessarily stricter than the directive itself.
On the other hand, the amendment fails to resolve any of the conceptual issues existing under the previous amendment to the EIA Act (admission of broad participation of the public within the EIA procedure, introduction of the concept of a follow-up procedure and the so-called coherence stamp), despite the fact that the government promised a comprehensive solution that would speed up and streamline the EIA procedure.
The transposition amendment primarily amends some basic definitions. The definition of a “project” has been extended so that, beyond the projects expressly specified in Annex 1 to the EIA Act, it now also includes projects that could have a negative impact on protected natural reserves (i.e. significant such locations in Europe or bird nesting areas). Under the proposed new amendment, such projects should newly be allowed to proceed at least within the EIA screening procedure.
Another change involves the definition of the “follow-up procedure”, which now specifies an exhaustive list of 12 follow-up procedures, e.g., a zoning procedure, building procedure, any procedure on additional building permits and an IPPC procedure. Defining all follow-up procedures should reduce uncertainty over any procedures that are disputably a follow-up procedure. In connection with the definition of a follow-up procedure, the term “permitted project” newly includes the moment from which a project is considered as permitted; therefore, any further changes (change of the structure before its completion) will not be considered as a follow-up procedure, but as a new EIA procedure (if the nature of the change is such that it would necessitate a new assessment).
Among the most significant changes resulting from the proposed amendment to the EIA Act is the adjustment of “below-the-threshold” projects defined within Sec. 4 of the EIA Act. The competent state authority will no longer scrutinise all below-the-threshold projects in order to issue an opinion stating that any of them falls outside of the screening within the EIA screening procedure. In this respect, investors and the relevant state authority will see less administrative work regarding the issuance of “below-the-threshold opinions”.
On the other hand, no screening procedure will need to be done or opinion issued on the nature of the project if the project falls under the limits specified in Annex 1 or is not located within a specially protected area or protective zone (i.e., a zoning permit application can be submitted without any other screening of the environmental impact). To initiate the screening procedure for such projects requires an opinion of the competent state authority assessing whether the project is subject to a screening procedure (opinion on “below-the-threshold project”)—only if the project (or any of its changes) exceeds 25 per cent of the relevant limit under Annex 1 of the EIA Act (e.g., under Annex 1, a screening procedure for garages or parking lots would be mandatory only if there are more than 500 parking spaces. Therefore, in this case, a screening procedure would be initiated only if 25 per cent of the limit (i.e., 125 parking spaces) are planned to be built in a specially protected area or protected zone. In this case the relevant state authority is obliged to carry out a screening procedure.
The Expert Report
The changes proposed by the new amendment to EIA Act would also significantly affect the expert report of the EIA procedure. The relevant authority would now be authorised to prescribe how much time is permitted to prepare the expert report, which should reflect the complexity of the respective case. However, the time period still cannot exceed 60 days. Additionally, it would also become more difficult to extend the time period, and only possible to do so by a maximum of 30 days at the request of the person preparing the expert report and with approval of the authority. If the expert report is returned for reworking, the authority shall prescribe an additional period of 60 days. If the expert report is not prepared within the supplementary period, within 10 days the authority shall issue a certificate of review of documentation; if no certificate is issued, the developer is entitled to procure the expert opinion by himself or herself, and the relevant authority shall reimburse all costs.
Under the proposed new amendment the expert report is newly considered as internal material to be used only for verifying compliance of the presented documentation with the actual situation. This means that the expert report will not be made public, and the public will not be able to comment on it. This will prevent situations when the expert report was not prepared by the chosen person for several months, and as a result the whole EIA process was significantly slowed down. At the same time, the Act on EIA provides for an option to withdraw the authorisation to prepare the expert report in cases of repeated breaches of law, including failing to prepare an expert report. This removal of the need for a public hearing on the expert report and for its publication, combined with the introduction of sanctions on persons preparing the expert report who cause unnecessary delays, will indisputably accelerate the entire EIA process by approximately 45 days.
When considering that the directive does not itself require preparation of an expert report, completely omitting the obligation to prepare the expert report ought to have been considered (or giving the authority the option to require an expert report when in doubt). Doing so would have further significantly shortened the whole EIA process.
An EIA binding opinion
Another fundamental change affects the validity period of an EIA binding opinion. While the amendment increases the validity of a binding opinion from five years to seven years, it abolishes the common practice of making an EIA binding opinion permanently valid upon the commencement of related proceedings. Under the amendment, a binding opinion will always be prolonged by five years whether related proceedings are commenced or not. A request to prolong a binding opinion must be filed while that binding opinion is still valid, and it must remain valid for the entire processing time of the request.
A binding opinion will not be prolonged if there have been significant changes in the affected territory. In that case, the unfinished part of the project will have to undergo the standard environmental impact assessment process again. (This situation occurs mainly in the construction of motorways, which can take as long as 12-14 years; hence, it is not uncommon for the affected territory to undergo changes.) Furthermore, under Part Four of the Administrative Procedure a request to prolong an EIA binding opinion is not considered a proceeding. Instead, it falls under the heading “other act” of an administrative authority, and therefore the public is not entitled file appeals against it.
There is some compensation in return for shortening the period to provide documents for the so-called “coherence stamp” (a statement certifying that the planning documentation has not been affected by any changes which could significantly affect the environment). The developer will newly be entitled to submit documentation for relevant related proceedings to the authority which issued the statement 90 days before submitting the request to commence the related proceedings at the earliest, and on the day of the submission at the latest, instead of 30 days in advance as it is under the current wording of the law.
A binding opinion is also now issued if there are no changes to the project (currently no written deed is issued); the developer is thus granted certainty by the authority. In such a binding opinion, the authority will also determine which conditions of the binding opinion are unfeasible due to other changes in the project and thus enable the binding opinion to flexibly react to changing conditions.
It must be noted that all annexes of the Act have been amended, in particular Annex 1, which prescribes the limit values of delimited projects. In order to simplify the application and harmonise it with requirements of the directive, the individual projects listed in Annex 1 have been amended to comply with the directive, while some requirements that go beyond the scope of the directive have been reduced. The result is that some projects are not subject to the larger EIA process (e.g. forestation and deforestation), while others (e.g. underground transmission lines for electrical energy) have had the obligation to carry out a screening procedure removed.
Although the declared aim of the amendment to the Act on EIA was chiefly to simplify and streamline the whole EIA process, this aim has been only partially fulfilled. Despite the modification to below-the-threshold projects, which should lead to fewer EIA procedures in total, and the other significant simplifications to the overall EIA procedure, because of the need for repeated prolongations of binding opinions and maintaining the need for an expert report (which not required by the directive), the promised streamlining and simplification has, unfortunately, been considerably curtailed.