Opinion on the Forest Act amendments law adopted on June 13, 2012 by the National Assembly

Dear ladies and gentlemen deputies of the National Assembly,
We are thankful for the invitation to public discussion. After a thorough acquaintance with the Forest Act amendments law, adopted by the Parliament on June 13, 2012, our opinion is that this law needs an entire remake. Our motives draw from the fact that some of its regulations violate Republic of Bulgaria’s constitution and the Treaty on the Functioning of the European Union and the Union’s legislature. This law will license overbuilding of the forests, agricultural land and protected areas, and overexploitation of forest resources, and will have long-lasting negative effects on Bulgarian forest. The adopted Forest Act amendments law violates its chief purpose, and contradicts the tradition in this matter in Bulgarian legislature.
Therefore, it ought to be marked that the adoption of the Forest Act amendments:
- For the first time of the Liberation the state allows a third party to build on another’s property without having the consent of the owner and without a due compensation.
- For the first time since 1931 (when the first protected area in Bulgaria was announced) the state will allow private persons and companies to build in protected areas, which are public state property.
- For the first time since 1955 the state allows state forests to be exploited at a rate twice their natural growth, which will lead to reduction of the forest fund.
- For the first time since 1991 (when the Constitution was adopted) the state allows agricultural land to be built on for purposes unrelated to agriculture, like for ski resorts and golf courses.
- For the first time since 1991 the state establishes a plan by sectors for state aid – for building ski resorts and golf courses, freeing them from the due state fees for change of the use of the properties.
- For the first time since 1925 the riverside forests will not be considered forests, and will be subject to felling by their owners without any control.

Regarding the most controversial regulations related to construction and assigning real property rights in Bulgarian forests, we stand firm that in every amendment of the Forest Act the following three basic principles have to be observed, and which guarantee the public interest and the protection of the national forest resource:

- The equal treatment principle – the requirements and restrictions of the Forest Act should apply equally to all, that is, there should not be created opportunities for any persons and economic sectors to receive access to easier administrative procedures or financial reliefs at the expense of all others.
- The principle of free competition – the choice of private subjects, who want to use or build in state or municipal forests, as well as assigning real property rights and transfer of property from the state and the municipalities to private subjects to happen always through public tenders or competitions as per the State Property Act (SPA) and the Municipal Property Act (MPA).
- The principle of sustainable development – use of and building in forests should be allowed only in a way that will not deprive local communities and future generations of the opportunity to use this natural resource for their other needs, as for example the development of alternative forms of tourism, that is not to admit the impairment of the landscape with ski facilities, if this will destroy opportunities for summer tourism for example.

Therefore, we make the following request for review of the problem paragraphs in the Forest Act amendments law:

Group I: Forest to paper, building and felling in practice:
Text to be removed: § 20 of the Forest Act amendments law: change of items 4, 6 and 7 from paragraph 1, and cancellation of paragraph 6 in Art. 73 of the current Forest Act.

Motives: In the first place, it is inadmissible to free certain types of business from the requirement for change of use and exclusion from the forestry fund: for “sports” and “cultural” uses, which concept may be used for any human activity. The opening of the texts in terms of admissible construction in forests and forest areas in articles 54 and 73 contradict the main purpose of the Forest Act, specified in its Art.1, line 2, item 1 – protection and increase of the area of forests.

Second, the amendment allows for building of sports, cultural and religious facilities in protected areas without change of use of the properties in properties which are public state property. This regulation concerns mainly state property in protected areas and is in utter contradiction with their philosophy of management as per Art. 74 of the current Forest Act, Protected Areas Act and Protected Areas Management Plans.

Third, the amendment creates a scheme for state aid for investors in outdoor sports, cultural and religious facilities, freeing them from the owed state price as per Art.78 line 1 of the Forest Act, when they build in private forest or on agricultural lands or reducing by 1 to 3 times their expenses when building in state or municipal forests or on such lands. Every scheme for state aid in the member states is subject to prior approval (notification) by the EC according to Art.108 of the Treaty on the Functioning of the European Union. In the case of the Forest Act amendments law there is no such approval.

Proposal:
The possibility, which we consider an acceptable compromise with regards to repair of sports facilities on public state property, as is the case with the old ski facilities in Vitosha Natural Park, is creation of a new item 5 to line 1 of Art.54:
“6. Steps of existing lifts and ski-tows, which have been announced as acceptable as per the regulation of the Spatial Development Act.”
In this way we will solve the problem with the necessity of replacement of facilities on public state property in protected areas.

Group II: Uncontrolled management of state and municipal property:
Establishment of real property rights for construction and servitudes without change of use.

Texts to be removed:

§ 5 of the Forest Act amendments law in its entirety; §6, line 1 и item 3, §7, item 1, б. “а” and item. 3; § 8, item 1;

Motives: Art. 54 of the current Forest Act should pertain only to forestry economic activities (excluding usage and repair of existing ski facilities.) Activities not related to forestry or hunting should be regulated in another text of the Forestry Act or another law, and not in Art.54 of the Forest Act. All facilitations should comply with the free competition principles, and not to allow arbitrariness by state bodies on when and for whom to open tender procedures. Not to admit silent refusal of proposals of potential investors. To provide simplified and clear procedures – such as are in SPA and MPA.
Admissible are only facilitations for investors in activities with minimum nature damage: land-use right, renting without construction or establishment of movable objects. With regard to using existing ski-runs in Vitosha Natural Park we propose the following text to be reviewed in the National Assembly:
Proposals: Under § 17 – in Art. 69 line 1 is made a new item 4:
“4. for activities which are not construction in the meaning of the Spatial Development Act and this law. The establishment of this right for use of forest areas property of the state or municipalities is done as regulated by the State Property Act of the Municipal Property Act .”
Under § 18 – in Art. 70 line 1 item 2 is amended as follows: In line 1, item 2 to the text in the end is added a coma and continues with the words
“ , as well as for the activities under Art. 69 line 1 item 4 about the forest areas property of the state;”
Motives: The responsible administrative body for applying the State Property Act in establishing land-use right concerning small areas is set.

Group III. Unnecessary exclusion from State Forest Fund:
Motives: It is unnecessary for small networks under certain parameters to be excluded from SFF, and for the big ones – to be with construction right. The sites of national significance are separate cases, should not be mixed.
Group IV. Anti-constitutional agricultural land-use change.
Problem texts: §70
Motives: The adopted amendment of Art. 17 of the Law on Protection of Agricultural Lands allowing construction of outdoor facilities for sports, cultural, as well as religious events, including auxiliary constructions related to it, without change of the land-use of agricultural lands, is in direct contradictions with Art. 21 line 2 of the Constitution, which says that agricultural land is to be used only for agricultural purposes.

Group V. Anti-constitutional violation of private property rights in disputes about forest property or such in the process of restitution.
Problem texts: §67.
Motive: An opportunity is created for state forest enterprises to enter and use timber in forest properties, and a legal dispute arises between the state and third parties, which is in violation of Art. 17 line 3 of the Constitution.

Group VI. Investment projects and Compensatory afforestation:
Problem texts: § 9, 10, 11 of the Forest Act amendments law.
Motives: Moveable objects and also restrictions regarding felling trees at the site of the construction ought to take consideration, as well as the necessity of compensatory afforestation in the investment projects – similar to the urbanized territories. The fact that the lower categories of construction do not have investment project is also a problem.
Proposition: remove the wording “investment projects” and there remains only “construction license or license for installing a moveable object.”

Group VII. Uncontrolled felling on small properties, under 2 hectares:
Problem texts: § 1, item 3 of the Forest Act amendments law;
Motives: The amendment allows private owners to use their forests and to fell without existing forest management plans and projects, with which the state is depriving itself of the possibility for preventive control aimed at upholding public interest, as long as felling forests represents irrecoverable damage on the forests public resource. The uncontrolled felling on small private property up to 2 hectares without planning or programs existed as a possibility in the old forests law. The results are random felling in plain forests and the Fore-Balkan following the clear felling of private forests. In order to deal with that issue, in 2009 at the national conference on management of private forests a decision for banning similar way of organization and management of forest properties under 2 hectares was taken. The decision was a huge step towards sustainable forest management, since in this way a serious ecological, social and economic problem was being solved. It was transferred to the forest law, which entered into force in April 2011, with the support of foresters, the control bodies and the scientific institutes. It is indicative that while such a regulation existed under the Forest Act since 1997 private forests accounted for 20% of the total timber yield in Bulgaria, though they occupy 10% of the total area.

Group VIII. Felling at corrections of rivers:
Problem texts: § 28 to take out the phrase “borders of corrections of rivers and of” and §32 to take out the phrase “the borders of the corrections of rivers” from the Forest Act amendments law.
Motives: The law envisages riverside forest populations not to be taken into account and considered as forests, when they are within the borders and the corrections of the rivers. All natural riverside forests in our country are defined as focus habitats for protection in Natura 2000 network (types 91Е0, 91F0, 92A0, 92C0) and according to Directive 9243 the Member States have to take measures for their protection on their whole territory, and not only in the zones of the network. The acceptance of the amendments in Art. 88 of the Forest law is just the opposite of the necessary protection and is a violation of Directive 92\43.

Group IX. Felling and use surpassing the natural growth:
Problem texts: § 63, line 3 of the Forest Act amendments law.
Motives: Felling by 80% more than the natural growth of the forest, allows for overuse of state forests by state enterprises. This is in effect a doubling of the use of state forests and will lead to decrease of the forest fund and degradation of those which are situated in vicinity to the road network.

Group X. The axe and the brand in one and the same hand
Problem texts: § 43 of the Forest Act amendments law.
Motives: We consider it a change the philosophy of the law uniting the planning activities, the marking and the transportation and sale of the timber. The text met fierce opposition by the timber industries.

Group XI. Illegal support for the hunting business
Problem texts: § 69 of the Forest Act amendments law.
Motives: With the change in the spending of the income from the concession fees, these incomes will go back to the same hunting areas to those concessionaires who have paid, instead to be spent for preservation and protection of the game outside the concession areas. These are sums of the order of 4-5 million lev per year, which is in itself hidden subsidizing of the hunting business. It is inadmissible the rent to go back in a covert form to the tenant!



Respectfully,
Vesselina Kavrakova
Programme Manager