Why the European Commission started a law case against Bulgaria regarding the missing protected zone “Rila Buffer”

To the Chairman of NCB

Mr. Boyko Malinov – vice-minister of MoEW

SPECIFIC OPINION

Of assistant professor, Dr. Rosen Tsonev, representative of the Biological faculty, SU “St. Kliment Ohridski” at NCB
Regarding: decision of NCB from 22.03.2016 on point 4. Examination of proposal for a list of protected areas for the preservation of wild birds, together with documentation regarding Article 8, paragraph 1 of Biological Diversity Act – new protected zone “Rila Buffer”.

Dear Mr. Chairman,

According to Article 17 of the Regulations on the structure and operation of NCB, I herewith put forward a specific opinion in relation to paragraph 1. Examination of proposal for list of protected zones in relation to protection of wild birds, together with introduced documentation according to Article 8, paragraph 1 of Biological Diversity Act (BDA) – new protected zone “Rila Buffer”.
Herewith, I express my disagreement regarding the approved decision by NCB on paragraph 1 in relation to postpone with 2 years the protected zone “Rila Buffer”, based on the following grounds.

This Council’s decision has not been supported by any of the scientists and scientific teachers, members of the NCB. All considerations of the Council’s members, who voted for postponement of the protected zone, have been based on statements by the municipalities.

These considerations can be summarized as follows:
- The scientific data are not sufficient and actual (data gathered up to 2010) in order to bill the zone;
- The local citizens are not sufficiently informed regarding Natura 2000 network as well as regarding the consequences of billing the protected zone to them;
- Additionally, arguments having social and economic perspective have been stated, which is in contradiction with the requirements of Directive 92/43/EEC and BDA, especially at this stage of the announcement of a protected zone.
All these motives are groundless due to the following reasons:

According to the legal practice of the EU, all sites that correspond to ornithological criteria (lawsuit C-3/96) should be announced as Special protected zones (SPZ – birds protected zone according to BDA). The member states are not allowed to use economic or other arguments, different than the scientific ones when SPZs and their boundaries are defined (lawsuit C-44/95). The approval of protected zone “Rila Buffer” is a procedure for the definition of protected zone and its boundaries and, as requested by law, this should be done based solely on scientific data. According to Article 4 of the Birds Directive, member-states are forced to announce SPZs sufficient in terms of amount and area, whereas the application of other different than the announced conservation measures cannot be considered as sufficient (lawsuit C-202/01). Regarding lawsuit C-141/14 on the case of “Kaliakra”, the court has clearly adjudicated that member states are forced to announce areas as SPZs, which correspond to the ornithological criteria (para 27). Moreover, member states shall classify all territories that are considered as most suitable after application of the criteria (para 28). Furthermore, the freedom of appraisal of the most suitable territories to be classified as SPZ by member states, relates only to the application of the respective ornithological criteria, but not in relation to the advisability of the most suitably defined territories (para 29). According to the law practice, the court agrees that the criteria on defining of ornithological important sites of BirdLife International are such that should be accepted as authoritative, whereas IBA should be considered as the minimum, if the government is not in possession of better data.

Natura 2000 is a legal binding in our country for over 14 years (BDA is since 2002). Many protected areas have been announced, part of which are falling within territories of the above-listed municipalities. During this period, regular procedures under Article 31 of BDA with the participation of the municipalities are running. These facts eliminate the hypothesis that they or their citizens are not informed. MoEW has conducted several national information campaigns including such on territories related to Natura 2000 and the measures related to them. Since 2007, the Ministry of agriculture and food (MAF) conducts regular annual information campaigns for the support of agriculture activities, including within Natura 2000 by also executing payments under Regional Development Programme (RDP). Furthermore, many NGOs also conduct many information campaigns regarding Natura 2000 in the frame of different projects. Since 2013, MoEW supports a webpage with all their information on Natura 2000, including general information and specific information of different regions. The EC also supports a webpage with bulky data on Natura 2000 which is also accessible in Bulgarian language. The topic on the inclusion of protected zone “Rila Buffer” is specially a topic for discussion in different formats since the autumn of 2006 and it is impossible to consider a lack of information. This project for protected area is under discussion for over 10 years now.

All considerations of the municipalities, related to the definition of the regime, measures and management of territories should have not been taken into account for the decision of NCB, because the legislative procedure at this stage requires only the definition of the territory with its boundaries. However, the questions raised by the municipalities are a subject of procedures, which are legally to follow after the admittance of the zone as protected. Protected Zone “Rila Buffer” is functionally undetachable part of IBA “Rila”, defined as such in 2005 and published in 2007. The importance of this territory is defined based on solid scientific data by experts in the fields of ornithology and nature conservation. Initially, the territory has been admitted as exceptionally significant for the biodiversity conservation during the elaboration of the National action plan for biodiversity conservation (1992-1993). In 1995 the territory is defined as such for inclusion in the international network EMERALD due to its importance to birds. In 2005 the same is announced as IBA as a result of an analysis of the presented quantitative data and the application of IBA criteria, including also and discussion among all ornithologic experts in the country at this time. During the same year, the application of IBA criteria, including also IBA “Rila”, is profoundly checked by the secretariat of BirdLife International in Cambridge. The conclusion is that it covers all criteria that are given by the proposal (first check). In the beginning of 2007, The Council of ministers passed a seriously shortened list of protected areas for birds, including reduced territory of IBA “Rila”. Thus, the EC started a penalty procedure against Bulgaria. At the end of 2007, the Bulgarian Academy of Science (BAS) elaborated a profound evaluation of all proposed IBA, including against the data quality, the implication of the accepted by NCB methodology, by confirming that the whole territory of IBA “Rila” should be included in Natura 2000 (2nd check).

Within the frame of this check, different experts of BAS complemented the territory data, as well as conducted several expert discussions. Thus, by 2008 the data have been updated. In the period 2008-2009, EC evaluated the scientific arguments against the announcement of the territories for total of 6 IBA, including Rila. Documentation by independent international experts has been enclosed. The experts confirmed the need for the inclusion of the excluded territories in Natura 2000, in order to implement correctly the European legislation (3rd check by independent of the Bulgarian government and on high-level expertise). At the beginning of 2010 within the frame of the penalty procedure, MoEW organized series of expert discussions in relation to the non-included territories. All available data have been once again revised. Additional data are enclosed; data are verified against the available methodologies. The experts scientifically argument the need for the inclusion of the whole IBA “Rila” in Natura 2000. Furthermore, additional argumentation for the inclusion of additional 3 protected zones is given, in order to fully guarantee the protection of the area. Those 3 zones should cover the national park, the nature part and the territory without legal protection respectively, as long as the three territories are included in Natura 2000. At the NCB discussion held in the beginning of 2010, only “Rila Buffer” and “Kaliakra” are not accepted among all proposals. Due to this reason, EC sent the latest precautionary letters to the government (in 2012 and 2013). This shows, that according to the EC’s analysis, the inclusion of the two territories is needed and a mandatory obligation of our country.

In 2014, the government started a procedure for the preparation of documentation for the announcement of “Rila Buffer” as a bird protected zone. This has been initiated in order to avoid new legal cases and due to the fact that the avoidance of the decision on this territory has taken over 4 years. In the process of documents preparation, a new critical analysis of the data has been made, whereas new data collected from investigations have been added. These data confirm that the ornithologic value of “Rila Buffer” and the ornithologic data used are actual, reliable and can be used. Thus, the documentation is prepared according all requirements. At the end of 2014, the documentation is put forward in MoEW and prepared for examination during the first half of 2015. During this saga around “Rila Buffer” that took over 10 years, it is ridiculous to state that there are no scientific data and information to the stakeholders.

The scientific data themselves are collected and concluded by ornithologic experts of BAC, universities, NGOs, etc. The best available information and the best scientific expertise collected and updated for over 10 years (including 2015) have been used. Methodologies, legislative requirements and norms have been respected.

We consider that the grounds of the NCB members who have voted for the remit of the protection zone regarding the actuality of the ornithologic information, have also been based on the statement of the environmental managers of municipalities, in which parts of “Rila Buffer” falls. It is not considered that these statements are motivated and scientifically proved. This statement shows that the parties responsible for it have not the required competences on the topic and the decision of the NCB should not be based on such document. From the written in their expertise, it is clear that they do not know the nature protection legislation related to Natura 2000; they do not have the needed knowledge for knowing the related bird species; they are not familiar with their ecology, as well as they do not know the standardized methodologies for research and analysis. As an example, in this statement unfamiliarity with the used terminology is demonstrated, by equalizing protected areas with categories like “national park”, “nature park” and “habitats”. Facts are bended; for example, it is noted that all 114 IBA are announced as protected areas, but this is not fully true, since the territory of IBA “Rila” is not completely part of Natura 2000. 15% is outside the Network, which is the main reason for the violation of the legislation and the penalty procedure. Section “Regarding the characteristic and the numerical data presented to the EC by BSPB” describes in detail the data given by BSPB regarding Nature Park Rilski Manastir, but it is unclear where these data come from. On one hand, data regarding the types of bird species are cited, but they are not taken from Annex I of the Birds directive. However, regarding them IBA are announced, considering the “Ornithologically important habitats in Bulgaria and Natura 2000” (2007). On the other hand, this book publishes the data regarding the whole IBA “Rila” without separating between national park territory, nature park or unprotected area. Therefore, it is unknown how the authors of the statement have considered how and what part of nesting pairs, published in the book, have been in and out the nature park. Further, in the same section an ornithological characteristics of Nature park “Rila” is undertaken, but based on data from the management plan, whereas these data cannot be referred as to being data by BSPB. The statement describes also the mammals’ fauna, which has nothing to do with the definition of “Rila Buffer” as a protected zone under the Birds Directive. This shows a basic lack of knowledge of the principles and philosophy of Natura 2000 network.

In paragraph 3.2. of the Section where the authors discuss the penalty procedure 2007/4850, for the first time a comparison between the birds data in IBA “Rila” and in the two protected areas – nature and national parks” is made. However, only the species number are compared, for which the discussed territories is important. It is probably unknown to the authors that the number of species is not an indicator for the definition of a territory as bird protected. Numerical data on the populations is needed, although the statement contains texts copied by the methodology IBA book. By citing the data from the MoEW project on species and habitats mapping, the authors of the statement state that public data for the two protected areas on the territory of IBA “Rila” are missing; they do not consider the fact that according the methodology, these territories have never been a subject of examination under the framework of the project, exactly due to the development of the management plans and in order to avoid doubling of the funding. A subject of examination has been only “Rila Buffer”. Based on the Red book of Bulgaria, volume 2, a conclusion is made on the insufficient argumentation for the announcement of “Rila Buffer” without knowing the facts and without considering that the Red book is one of the many sources of information considered in this specific case, but not a main source.

The authors suggest MoEW and NSB has agreed to conduct additional examinations of “Rila Buffer” based on the given argumentation. As it has been made clear by the above evaluation, this argumentation, however, has been considered as groundless and based on false or distorted data, or has not been based on any scientific information.
In accordance with all the above listed facts, I appeal to the Minister of environment and water to not consider the decision of the NCB under point 4 of the agenda from 22 March 2016 and to undertake the requested by the law in order to announce “Rila Buffer” as protected zone.

24 March 2016

Assistant professor, Dr. Rosen Tsonev

Chair of Ecology and environmental protection,
Biological Faculty
Sofia University “St. Kliment Ohridski”