4.1 Best Available Knowledge and Practice

To implement the ecosystem approach, the allocation and development of human uses shall, pursuant to the EBA-Guideline, be based on the latest state of knowledge of the ecosystems as such and the practice of safeguarding the components of the marine ecosystem in the best possible way. The MSP- Directive also requires the use of the best available data.⁴⁰ The legal framework for the transposition of this requirement into German law is formed, according to the explanatory statement to the draft amendment to the FSPA,⁴¹ by Section 7 para. 2 of the FSPA, as well as by the respective Sections on strategic environmental assessment, the information obligation, and on participation.⁴² Section 7 para. 2 of the FSPA states that relevant public and private interests shall be duly weighed and fairly balanced in the planning process insofar as they are apparent and sufficiently important at the respective planning level. The duty to duly consider all interests implies the duty to gather information on all potentially relevant interests. The best available data must be determined in each individual case and the planning authority has some margin of discretion in that regard.⁴³ Other public authorities shall be asked to provide information on their envisaged plans and measures and other information available to them,⁴⁴ but they are not obliged to investigate additional facts.⁴⁵ Within the environmental assessment, the impacts of the plan on the marine environment then have to be comprehensively investigated. This obligation is, however, softened by stating that the depth of the examination may be limited to what can be reasonably expected with regard to the current state of knowledge.⁴⁶ Even though neither the MSP-Directive nor the EBA- Guideline require the conduct of additional research on ecosystem functioning, it seems questionable whether the reluctance to require further research in the preparation of the plans does justice to the importance of a comprehensive information base for ecosystem protection.

Further details concerning the gathering of information and the use of data are specified in the spatial plans themselves. Thus, for a comprehensive and large-scale gathering of knowledge regarding ecosystem interrelationships, the results of marine scientific research should be continuously collected (Principle 3 in Section 3.4.1 on marine scientific research). According to the justification for this principle, this knowledge is to be used to monitor the effects of the implementation of the marine spatial plan. The principle is based on the recognition that a sufficient state of knowledge is a prerequisite for the sustainable development of the EEZ and the ongoing improvement of the plans.

With respect to individual uses, specific provisions are made with a view to learning more about their impacts on the marine ecosystem. For example, Target 4 in Section 3.5.1 on energy production states that a ‘reference area’ is to be kept free of wind energy installations in order to facilitate a comparative analysis. Another example is Principle 9 in Section 3.2.1 on the exploitation of non-living resources that requires that the effects of resource exploitation on the marine environment are examined through project-specific monitoring. The definition of the concrete requirements of this examination is delegated to the approval authority. The plans themselves thus provide for the incremental improvement of knowledge concerning ecosystem functioning that can then be used to improve the next generation of spatial plans. Such an approach can help to reconcile the necessity of generating an adequate information base crucial for ecosystem-based spatial planning with the necessity of a timely adoption of the plans.

4.2 Precaution

Far less is known about marine than about terrestrial ecosystems. In addition, marine ecosystems exhibit complex system behaviours and it can therefore not be safely assumed that they recover when stressors are reduced.⁴⁷ Thus, the application of precaution is particularly important to ensure a careful and responsible use of the marine area.⁴⁸ With regard to precaution, the EBA-Guideline states that far-sighted, anticipatory and preventive planning shall promote sustainable use in marine areas and shall exclude risks and hazards of human activities on the marine ecosystem. However, while requiring a specific careful survey and weighting of the risks of those activities that according to current scientific knowledge may lead to significant or irreversible impacts on the marine ecosystem and whose impacts may not be in total or in parts sufficiently predictable at present, the EBA-Guideline does not require the avoidance of any risk.

According to the FSPA (Section 1 para. 1), spatial plans have to provide both for uses in and for the functions of an area, including the functions of ecosystems, but the planning authority has a certain leeway with regard to the appropriate level of precaution.⁴⁹ The same applies for the balancing of interests according to Section 7 para. 2 of the FSPA. Moreover, the principle of proportionality sets limits to the application of precaution. Implementing precaution in marine spatial planning thus involves, pursuant to the FSPA, value judgments and trade-offs between competing spatial demands. In particular, the FSPA has been criticised on the basis that no principal priority in the process of weighing up the planning options has been given to environmental concerns in the face of uncertainty. The application of the precautionary principle under the FSPA therefore often takes the form of mere hazard prevention rather than ensuring an increase in environmental quality.⁵⁰ If precaution is understood as requiring consideration and some sort of balancing of all risks,⁵¹ the provisions of the FSPA nevertheless seem to meet the respective requirements of the ecosystem approach.

The conditions for the determination of the different spatial planning instruments further influence the level of precaution that can be ensured by the spatial plans. A conclusive weighing of interests is a prerequisite for the establishment of binding spatial planning targets, including the establishment of priority areas.⁵² If such a conclusive weighing is not possible due to a knowledge deficit with respect to the detrimental impacts of a certain anthropogenic activity on the marine environment, then, in line with the precautionary principle, it is not possible to establish targets or a priority area favouring this activity.⁵³ Because of the impossibility of clearly defining areas of special importance to benthic communities, however, it has also been considered impossible to designate areas ensuring their protection at the time of the adoption of the current spatial plans.⁵⁴

Since the establishment of spatial planning targets is subject to strict conditions, the provisions of the German plans often have recourse to the ‘weaker’ technique of simply determining principles to deal with uncertainty regarding the marine environment. For example, with regard to the laying and operation of pipelines and submarine cables, Principle 8 in Section 3.3.1 says that any damage to or destruction of sandbanks, reefs, or other areas with valuable benthic communities shall be avoided, including in such areas that are outside Natura 2000 sites.⁵⁵ At the time the Principle was adopted it was not possible to identify the concrete locations of those structures. If they are found in the course of the procedure for the approval of pipelines and submarine cables, the Principle at least ensures that consideration is given to their protection in the decision-making process.⁵⁶ That means that the plan makes provisions for the protection of particularly sensitive habitats, by, at the same time, facilitating a case-by-case decision of the approving authority.

Of course, as long as any anthropogenic activities are permitted, the application of precaution can always be improved. However, a ‘zero risk’ approach does not seem feasible considering the economic importance of maritime uses. The relevant question is, therefore, whether an appropriate balance between protection and use has been achieved in the spatial plans in Germany. From a nature conservation perspective, it has to be emphasized that even the spatial demands of species and ecosystems that were substantiated in the planning contribution of the Federal Agency for Nature Protection were not adequately taken into account in the plans of 2009.⁵⁷ Nevertheless, the environmental report states that enforcing the determinations of the spatial plan will not impact the marine environment in a significant way.

The development of criteria for the application of the precautionary principle in regulating sea uses through marine spatial planning would certainly help to clarify the requirements of the precautionary principle on the evaluation of risks.⁵⁸ In this respect, the German ‘Standard Investigation of the Impacts of Offshore Wind Turbines on the Marine Environment (StUK4)’,⁵⁹ a standard method prepared to facilitate and harmonize the environmental impact assessment for wind energy projects, could serve as an example. Respective criteria would also help to avoid the danger of the obligations imposed on the planning authority by the requirements of the precautionary principle to reasonably demonstrate that plans will not cause harm to the environment⁶⁰ becoming ‘open-ended’.⁶¹

4.3 Alternative Development

Not all conflicts can be ‘planned away’ through marine spatial planning.⁶² However, by examining alternative forms of spatial development, the least environmentally harmful option can be identified. For this reason, the EBA-Guideline requires that reasonable alternatives shall be developed to find solutions to avoid or reduce negative environmental and other impacts, as well as impacts on the ecosystem goods and services. Considering alternative siting, for example, helps to protect migration routes and areas of retreat for endangered species and to minimize fragmentation effects.⁶³ In the German spatial plans, care has been taken, based on ‘the available findings on the migratory behavioural patterns of various bird species, the customary flight altitudes and the daytime distribution of bird migrations’, to ensure that the majority of migratory birds will not be affected by the wind energy projects in the designated priority areas for wind energy generation.⁶⁴

Since the need for protection of species may also vary over time, alternative time-frames have to be taken into consideration in the regulation of certain uses. For example, Section 3.3.1 on pipelines and submarine cables states that, to minimize possible negative impacts on the marine environment when laying pipelines and submarine cables, sensitive habitats should not be crossed during periods of high vulnerability of particular species (Principle 8). The task of determining such periods is then shifted to the approval level.⁶⁵ In addition, Principle 13 in Section 3.3.1 on pipelines and submarine cables stipulates that, to avoid and/or minimize any cumulative effects, all time schedules for the laying of submarine cables for the transport of power generated in the EEZ should be coordinated. This temporal coordination, which necessarily includes the examination of different alternatives, can help to reduce the number of disruptive interventions or, through the staggering of activities, ensure adequate periods of low use, or no use, which are crucial for the regeneration of the environment.

The plans furthermore provide specifications for the choice between alternatives, especially alternative technologies, at the approval level. Thus, according to Target 5 (Section 3.3.1) of the spatial plan, after termination of use, pipelines and submarine cables shall be dismantled. If dismantling would cause greater environmental harm than leaving them in place, the dismantling requirement may be waived wholly or in part, unless dismantling is required to ensure the safety and efficiency of navigation. Therefore, the anticipated conflicts with regard to the protection of the marine environment are conclusively regulated by making clear specifications for the choice of the right alternative at the approval level. The appropriate provisions for dismantling are then to be specified within the individual approval procedures.⁶⁶ The justification for Principle 12 (Section 3.3.1) on the selection of the burial depth of submarine cables for the transport of power generated in the EEZ enumerates the various needs that must be weighed against each other when choosing the most appropriate alternative. On the one hand, deeper cable burial reduces the risk of damage and helps to limit an increase in temperature in the sediment and to reduce the effects of electromagnetic fields. On the other hand, increased burial depths lead to increased structural engineering expenditures. Instead of deciding on the optimal balance between these needs itself, here again the planning authority leaves the final choice of the right alternative to the approval authority. Even though it has to be recognized that the circumstances of each individual case cannot be fully anticipated at the planning level, by extensively delegating decisions to the approval level, the planning authority does not seem to make the fullest possible use of its possibilities to regulate uses to the benefit of the protection of the marine environment.

It is difficult to trace whether, and if so to what extent, further planning alternatives have been considered in the German planning process. According to the FSPA, the environmental report must contain information on appropriate planning alternatives having regard to the objectives and the geographical scope of the plan.⁶⁷ In the environmental reports that have been prepared during the planning process, the focus has been placed on assessing the development in the event that the plan is not implemented at all, rather than on assessing reasonable and potentially less harmful alternatives.⁶⁸ Thus, when compared to the future development of the EEZ in the absence of the implementation of the spatial plan, positive impacts on the environment can be expected simply on account of the co-ordinating and concentrating effects of the spatial planning determinations. It is therefore questionable whether the current planning stipulations actually represent the best environmental alternatives.

4.4 Identification of Ecosystem Services

According to the EBA-Guideline, the ecosystem services provided must be identified, in order to ensure a socio-economic evaluation of effects and potentials. The FSPA does not contain an explicit requirement to identify ecosystem services in the planning process, but maintaining ecosystem services does form part of the private and public interests that have to be considered in the planning process according to Section 7 para. 2 of the FSPA.

Ecosystem services represent ecological processes and resources expressed in terms of the goods and services they provide to society. In order for an ecosystem to provide services to humans, there needs thus to be some appreciation of them.⁶⁹ The requirement to identify ecosystem services in the context of implementing the ecosystem approach seems to be based on the recognition that not only anthropogenic impacts shape the environment, but that environmental changes also have an impact on humans and their activities⁷⁰ and that humans are ‘an integral component of ecosystems’.⁷¹

The persuasive power of revealing the benefits of ecosystem services and the respective support for the promotion of nature protection within spatial planning should not be underestimated. Nevertheless, in this regard, ‘caution needs to be taken with the assumptions needed to convert natural benefits into financial currency and also because monetary assessments could be considered to compound the materialistic values of society rather than directly address the need for a deeper social shift in valuing environment and sustainability’.⁷² Even ecosystem processes that presumably provide no direct service to humans have to be maintained, both because of the intrinsic value of ecosystems and because of the still incomplete understanding of ecosystem functioning. In this spirit, Section 1 para. 1 Nature Conservation Act requires that nature and landscape are protected by virtue of their intrinsic value and importance as a basic necessity of human life, and also as a responsibility to future generations. Therefore, economic valuations should only constitute a complementary element in the process of balancing the relevant interests⁷³ and not a decisive criterion for planning decisions.

If ecosystem services are understood in a broader sense, according to which almost every known ecosystem process delivers ecosystem services to humans, their identification and preservation can certainly contribute to comprehensive ecosystem protection. For example, the indicators for ecosystem services delivered by marine ecosystems that have been developed by the Biodiversity Information Service System for Europe, include rather general indicators such as the extent of marine protected areas and the presence of iconic/endangered species representing services ranging from hydrological cycle maintenance to global climate regulation.⁷⁴ Moreover, the value of ecosystem services for humans has been considered to include non-use values that ‘stem from people’s knowledge that nature exists (‘existence value’) or because they wish it to exist for future generations (‘bequest value’) or for others in present generations (‘altruist value’)’.⁷⁵

4.5 Mitigation

The EBA-Guideline requires that measures are envisaged to prevent, reduce and as fully as possible offset any significant adverse effects on the environment of implementing the plan. As in other countries, in Germany, there are several regulatory levels that collectively aim to ensure appropriate mitigation of and compensation for the adverse effects on the environment of projects, activities, plans and programmes. The comprehensive perspective of the planning level appears to be the most appropriate level at which to take all the interrelationships of ecosystem components into consideration. Since in the EEZ, in contrast to terrestrial areas, there is only one comprehensive spatial planning level, more detailed decisions on mitigation have to be taken in the overall spatial plans.

According to Principle 6 of Section 2 para. 2 FSPA, natural assets shall be used sparingly and carefully. To this end, the FSPA explicitly allows the placing of conditions and time limits on uses through stipulations made at the planning level to minimize environmental impacts.⁷⁶ Particularly, it has to be ensured that the planning stipulations will not adversely affect the integrity of a Natura 2000 site.⁷⁷ In the environmental report, the planned measures to avoid, mitigate or compensate for adverse effects on the environment must be described.⁷⁸

In the spatial plans, there are source-related targets and principles as well as general principles for the mitigation of adverse impacts on the marine environment. The spatial plans stipulate, for example, in Section 3.5 on energy production, that in planning and designing for the construction and operation of energy production facilities, negative impacts on the marine environment, in particular on its natural functions and on the marine ecosystem, shall be avoided. Best environmental practice according to the OSPAR Convention⁷⁹ and state-of-the-art technology shall be taken into account.

In addition, environmental compatibility of maritime uses is verified at the following approval level for individual projects. The approval procedures for potentially harmful projects and activities in the marine zone are complex and wide-ranging. The applicant is generally required to carry out an environmental impact assessment (EIA), for which the approval authorities set the scope. The procedure is regulated by the Environmental Impact Assessment Act.⁸⁰ If a plan or project, individually or in combination with others, is likely to have a significant effect on a Natura 2000 site, it is subject to an additional assessment of its implications for the site in view of the site’s conservation objectives.⁸¹ Concrete measures to mitigate the impacts of uses on the marine environment will then be determined by the approval authority at project level taking into account specific conditions in the particular project area. Even in a priority area, the priority use can be made subject to conditions or obligations.⁸²

In conclusion, the decision as to how a use is conducted in the EEZ should not be completely delegated to the approval level. However, while the process of marine spatial planning allows for space to be allocated, conflicts reduced and synergies maximized in order to avoid or mitigate the negative effects of uses on the environment, the quality of uses and the concrete impacts of individual projects cannot be fully controlled.⁸³ For this reason, other procedures, such as EIA, must be employed alongside marine spatial planning to minimize the environmental impact of uses.

If significant adverse effects of uses are nevertheless unavoidable, they are to be offset via compensation measures or substitution measures or, where such offset is not possible, via monetary substitution, according to Section 13 et seq. of the Nature Conservation Act.⁸⁴ To ensure the actual protection of the marine environment, the Nature and Landscape Conservation Act of the federal state Mecklenburg-Western Pomerania, puts this obligation in more concrete terms by stating that impairments should be compensated for in the marine and not in the terrestrial area.⁸⁵

The strict compensation obligation stipulated in the Nature Conservation Act cannot be circumvented by prioritizing other interests. However, it only becomes applicable at the project level, since the adoption of a plan in and of itself does not yet constitute an intervention in the marine environment. A plan constitutes, with regard to anthropogenic uses, only an ‘offer’ and, at the time of its adoption, it is not yet clear if and in which way specific projects will be realized.⁸⁶ Rarely is the margin of discretion of the approval authority sufficiently ‘condensed’ by spatial planning stipulations to be able to predict the concrete extent of impacts that require compensation. Thus, specific compensatory measures for specific uses are imposed at the approval, not at the planning, level.⁸⁷

At the superordinate planning level, the FSPA does not provide for a comparably strict compensation regime, but generally follows the concept of the Nature Conservation Act by including among the non-binding principles in Section 2 the principle that any impairment of the ecosystem shall be compensated for.⁸⁸ The benchmark in this regard is the preservation of ecosystem functioning.⁸⁹ Compensation can, however, take place on a larger scale. Thus, full compensation does not have to be achieved in each small sub-area. Rather, the objective is to achieve a sustainable and overall balanced development of the sea.⁹⁰ Accordingly, the consideration of compensation possibilities takes place within the weighing of interests stage of the planning process.⁹¹

In addition, in spatial plans, provision can already be made for compensatory measures that will presumably be required in the future pursuant to the stipulations of the Nature Conservation Act.⁹² Particularly if the spatial plan designates areas for potentially harmful projects and activities, corresponding areas for compensation should be provided for. Ideally, the limits of compensation possibilities set by a spatial plan also set a limit for impacts on the environment and thereby ensure sustainable development.⁹³ For example, in the State Spatial Development Programme of Mecklenburg-Western Pomerania, the regional planning authority is assigned the task of considering the designation of such compensation areas. Compensatory measures shall then be carried out primarily in Natura 2000 sites and areas designated as part of a biotope network (Section 6.1.1, Principle 4). In the spatial plans for the EEZ, compensation areas have not yet been designated.

Due to the complexity of ecosystem functions, it is, in any event, difficult to achieve appropriate compensation in respect of marine areas.⁹⁴ Firstly, compensation measures in the sea are more difficult to identify than those on land, where compensatory landscaping measures can be implemented.⁹⁵ Possible measures include restrictions on other, less important uses or the designation of priority areas for nature protection. Secondly, there has to be a functional relation between the compensation and the interference with an ecosystem. Only if compensation helps to preserve the respective ecosystem, compensation can be considered a suitable instrument to implement the ecosystem approach.⁹⁶ Often, only parts of the complex ecosystem functions can be compensated for.⁹⁷ Since compensation always implies that an ecosystem has been seriously damaged or even destroyed, the avoidance of negative impacts should be the primary objective of planning.

4.6 Relational Understanding

In order to implement the ecosystem approach, it is, according to the EBA-Guideline, necessary to consider various effects on the ecosystem caused by human activities and interactions between human activities and the ecosystem, as well as among various human activities. This includes direct/indirect, cumulative, short/long-term, permanent/temporary and positive/negative effects, as well as interrelations including sea-land interaction.

When weighing up the different spatial demands in the planning process in accordance with Section 7 para. 2 of the FSPA, all relevant effects on the ecosystem are to be taken into account. The principles in Section 2 of the FSPA further emphasise the importance of the consideration of interactions in the environment⁹⁸ and therefore also, for example, of cumulative effects.⁹⁹ Additionally, the amended FSPA now explicitly requires the consideration of land-sea interactions with regard to spatial planning measures in the territorial sea and the EEZ.¹⁰⁰

Moreover, the interactions between the listed objects of protection, including species, plants and biological diversity, must be investigated in the environmental assessment on the consequences of the implementation of the plan and described and evaluated in the environmental reports.¹⁰¹ In the environmental reports for the current spatial plans, various types of interactions have thus been described including, inter alia, interactions amongst subjects of protection and direct and indirect effects, as well as temporal and permanent, local and large-scale, marginal and severe, positive and negative and cumulative effects.¹⁰²

The consideration of all direct and indirect impacts of anthropogenic activities on the structures and the functioning of ecosystems within the planning process as intended by the EBA-Guideline is a very desirable aim. However, marine ecosystems have many interacting components that are not yet fully understood¹⁰³ and uncertainty seems to be virtually inherent in such a complex concept as the ecosystem approach. This uncertainty is aggravated by the fact that, because of the general nature of the plans, the prediction of their effects is rather difficult at the planning level.¹⁰⁴ Thus, while scientific research should strive to reduce uncertainty by investigating knowledge gaps on relational understanding, this should not prevent planning. To allow otherwise means that knowledge gaps and the corresponding requirement of further research can lead to significant delays in the adoption of spatial plans. The implementation of the ecosystem approach in that case runs the risk of becoming a hindrance to a rapid implementation of protective spatial measures. This possibility is referred to as the phenomenon of ‘analysis paralysis’.¹⁰⁵

Where current best available information indicates a serious risk to the marine environment, the better option is to take proportionate protective spatial planning measures in line with the precautionary principle rather than to wait until additional knowledge gain facilitates the development of more ecosystem-oriented measures.¹⁰⁶ In the EBA-Guideline, the requirements for a ‘relational understanding’ seem, therefore, to be ‘softened’ by the reference to the latest state of knowledge and to precaution as further key elements of the ecosystem approach. For the same reason, the necessary scope and level of detail of the assessment of the environmental impacts of a plan depends, pursuant to the FSPA, on what can be reasonably expected with regard to the current state of knowledge, generally accepted testing methods and the content and level of detail of the spatial plan.¹⁰⁷

Remaining information gaps have to be revealed in the environmental reports.¹⁰⁸ For example, the migratory patterns of bats and the possible negative impacts of maritime uses on their population development have been described as largely unknown.¹⁰⁹ In such cases research is encouraged to be integrated into projects and the impacts of the project on the marine environment are to be subsequently monitored at project level.¹¹⁰ The results can then be fed into future approval and spatial planning processes as they progress. Since this approach harbours the risk that only project-specific impacts are considered and not all relevant ecosystem interrelations,¹¹¹ overall impacts of the implementation of the spatial plan are also to be monitored. Applying such an iterative process and providing for adaptation possibilities can help to reconcile the requirements of a comprehensive relational understanding with the timely implementation of ecosystem-based spatial planning.

4.7 Participation and Communication

All relevant authorities and stakeholders as well as a wider public shall be involved in the planning process at an early stage according to the EBA-Guideline. The results shall be communicated. In Germany, the public as well as potentially affected public authorities are to be notified of the preparation of a spatial plan and they have to be given the opportunity to comment on the draft plan.¹¹² The result of the examination of the comments has to be made available.¹¹³ Since, pursuant to the MSP-Directive, member states shall facilitate public participation at an early stage in the development of maritime spatial plans,¹¹⁴ it is questionable whether it is necessary to ensure even greater upstream participation in the planning process, i.e. public participation already from the conception stage.

The planning process for the German EEZ started in 2005 with the sending of a questionnaire to relevant agencies and NGOs asking for information on activities, licenses and interests in the EEZ. A ‘scoping meeting’ subsequently took place to discuss the scope of the necessary Strategic Environmental Impact Assessment. The BMVBS and the Federal Maritime and Hydrographic Agency (BSH) then drafted the marine spatial plans which, in conjunction with the environmental report, were published in 2008. Broad public participation was ensured through consultations with stakeholders from different sectors, including the marine environment and nature conservation, fisheries, energy, sand and gravel, shipping, military, tourism, leisure boating and research. A public hearing on the draft plan, attended by approximately 80 stakeholders, was held in Rostock at the end of 2008.¹¹⁵

Integrated Coastal Zone Management (IZCM), as an informal and flexible instrument, is recommended by the EBA-Guideline to support the process of participation and communication. It can be used to complement the formal participation process required by the FSPA. In Germany, following the European Parliament and Council Recommendation concerning the implementation of Integrated Coastal Zone Management in Europe of 30 May 2002 (2002/413/EC),¹¹⁶ the German Federal Ministry for the Environment, Nature Conservation and Nuclear Safety, published an ICZM strategy in March 2006. According to the strategy, ICZM is planned as ‘an informal approach to supporting sustainable development of coastal zones through good integration, coordination, communication and participation.’¹¹⁷

Even though the participation of the public and of potentially affected public authorities is imperative to enable consideration of all relevant interests in the planning process, such participation does not always entail better protection of the marine environment. For example, the public desire for an unimpaired view over the ocean might lead to the placement of wind energy installations further offshore, even in cases in which this is not the most environmentally-friendly alternative.¹¹⁸ Moreover, broad participation rights entail the risk of ‘participatory paralysis’. For example, the amendment of the FSPA requires the next generation of plans to be established in agreement with all ministries concerned.¹¹⁹ It remains to be seen whether this provision ensures improved ecosystem protection by requiring the agreement of the Ministry for the Environment or hinders the needed change towards ecosystem protection by requiring the agreement of all ministries concerned.¹²⁰

With regard to international participation, other states must be involved in the planning process pursuant to the FSPA if there is a risk of significant impacts of the planning stipulations on their territory.¹²¹ If there is reason to fear significant impacts on the environment of a neighbouring state, its participation is regulated by the Environmental Impact Assessment Act.¹²² In addition, Section 17 para. 1 of the FSPA¹²³ requires the BMVI to consult with the neighbouring states on the plans. Before the current plans were adopted, neighbouring states were thus involved in the planning process by notifying them about the intention of Germany to set up a marine spatial plan. Several face-to-face meetings with representatives of those countries took place, as well as consultations during the environmental assessment of the draft plan, with a view to taking into consideration potential negative impacts of the plan on the marine environment in these neighbouring countries.¹²⁴ The newly adopted HELCOM-VASAB Guidelines on transboundary consultations, public participation and co-operation¹²⁵ could, in the future, provide a basis for a comprehensive, constant and long-term cooperation in the development of spatial plans.

4.8 Subsidiarity and Coherence

Pursuant to the EBA-Guideline, maritime spatial planning with an ecosystem-based approach as an overarching principle shall be carried out at the most appropriate level and shall seek coherence between the different levels. If marine spatial planning is designed as a multi-scalar process ranging from regional to local planning, the most appropriate level can be chosen depending on the issue to be tackled.¹²⁶ Regional planning in the German mainland and the 12 nautical mile territorial sea is the responsibility of the coastal federal states (Länder) and the regional authorities. The legal bases for planning are the FSPA and the respective spatial planning laws of the individual federal states. The German federal structure has thus resulted in a decentralized planning system with legally, organizationally, and substantively differentiated planning levels. In contrast, responsibility for overall spatial planning in the German EEZ has been exclusively assigned to the federal government by Section 17 para. 1 of the FSPA.¹²⁷ This single-level planning does not prevent the planning authority from choosing different levels of planning detail according to the ecosystems needs in the planning area.

The delimitation of planning areas in Germany reflects the German administrative structures rather than the boundaries of marine ecosystems, which could mitigate against the delivery of an ecosystem approach. Ensuring the coherence of spatial plans across all sizes of marine ecosystems is therefore particularly important and challenging. In the German mainland, the different planning levels are interlinked in a coherent planning system by the mutual feedback principle as well as by comprehensive requirements of notification, participation, coordination and compliance.¹²⁸ According to the mutual feedback principle, the various planning levels have to take the requirements and conditions of the other levels into account.¹²⁹ For the EEZ, the provisions of the FSPA also require an internal coherence of the spatial plans. The spatial plans for the EEZ should contain provisions concerning the safety and efficiency of maritime traffic, economic and scientific uses, and the protection and improvement of the marine environment.¹³⁰ Despite this enumeration of sectors, planning in the EEZ shall be based, within the limits set by the United Nations Convention on the Law of the Sea (LOSC),¹³¹ on a comprehensive and coherent concept.¹³²

Since conflicts between uses and the protection of ecosystems do not stop at the border between the territorial sea and the EEZ, coherence between the spatial plans for the EEZ and the plans of the adjacent federal states is crucial to ensure ecosystem protection. The problem of the distribution of competences between the territorial sea and the EEZ becomes clear with regard to the implementation of the ecosystem approach, for example, when the protection of a migration corridor or the establishment of a network of protected areas requires coherent regulations across administrative boundaries.¹³³ Section 17 para. 3 of the former version of the FSPA therefore stipulated that the BMVI must establish the plans for the EEZ in consultation with the neighbouring federal states. Before the spatial plans were adopted, coordination processes were thus carried out with all federal states which were active in the coastal waters with regard to spatial planning.¹³⁴ Now, all three federal states located on the German coast (Mecklenburg-Western Pomerania, Lower Saxony and Schleswig-Holstein) have adopted relevant programmes and plans for the territorial sea. The mere requirement of consultation, however, was not able to ensure full coherence between the spatial plans for the territorial sea and for the EEZ. Through the amendment, the BMVI is now required to cooperate with neighbouring federal states with the aim of ensuring that marine spatial plans are coherent and coordinated.¹³⁵

Potentially, the informal instrument of ICZM could complement spatial planning and further mitigate the consequences of the distribution of competences by facilitating communication and cooperation. The German ICZM strategy follows a spatially comprehensive approach and takes the interactions between the EEZ, coastal waters and transitional waters¹³⁶ and areas adjoining estuaries and influenced by the tides, as well as rural districts on the coast, into account. ICZM is actually the only level in Germany at which this functionally cohesive area, the coastal and marine zone, is considered in its entirety.¹³⁷ The integrated coastal zone management concept has to be taken into consideration during the weighting of all relevant interests in the planning process, which is required by Section 7 para. 2 of the FSPA.¹³⁸ In any event, the interaction between informal and formal instruments still needs to be developed in Germany to exploit all possible synergies.¹³⁹

As to the minimum necessary extent of a coherent spatial planning concept, the delimitation of Large Marine Ecosystems,¹⁴⁰ whose boundaries are based on the four linked ecological criteria bathymetry, hydrography, productivity, and trophic relationships and of Marine Ecoregions,¹⁴¹ whose boundaries reflect large-scale ecological patterns can offer some guidance. Both concepts propose rather large areas, such as the North Sea and the Baltic Sea, as the spatial basis for nature conservation. In the same spirit, the MSP-Directive now requires cooperation with the aim of ensuring that maritime spatial plans are coherent and coordinated across the respective marine region. As marine regions are enumerated inter alia the Baltic Sea and the North-east Atlantic Ocean, thus also large areas.¹⁴² The FSPA does not refer to marine regions, but requires the cooperation with neighbouring countries.¹⁴³ Importantly, this cooperation is not only to concern certain formulations for a concrete plan, but shall rather be broadly understood.¹⁴⁴ Since the outcome – in other words the necessary level of coherence and coordination – is neither specified in the MSP-Directive nor in the amendments to the FSPA, a level of coherence of spatial plans adequate for ecosystem protection across a particular marine region seems, however, not yet guaranteed.

4.9 Adaptation

The sustainable use of the ecosystem should, according to the EBA-Guideline, apply an iterative process including monitoring, reviewing and evaluation of both the process and the outcome. The German spatial plans were comprehensively assessed by the planning authority before their adoption in 2009. The assessment formed the foundation for the environmental report, according to which, ‘positive effects on the marine environment due to the designations of the Maritime Spatial Plan regarding the marine environment are to be anticipated for the totality of the subjects of protection’.¹⁴⁵

In 2012, an evaluation report was produced by the BSH and the BMVBS, which assessed whether and if so how the implementation of the plans had been successful in reaching its targets. The evaluation focused, however, mainly on the development of offshore wind energy and the target set by the Federal government for offshore wind energy production. The existence of ecological steering effects of the spatial plans has been derived from the fact that offshore windfarm applications have been received only for the priority areas for offshore wind energy and for areas with no general limitation on offshore wind farm development.¹⁴⁶

Until recently, no time limit was set for a comprehensive review of the spatial plans. The provisions of the plans were, as a consequence, ‘perpetuating’ the results of the balancing process and the corresponding state of knowledge.¹⁴⁷ Since the MSP-Directive requires maritime spatial plans to be reviewed by member states at least every ten years,¹⁴⁸ the FSPA has now been amended accordingly.¹⁴⁹ With regard to ecosystem protection, it seems unfortunate that the opportunity was not taken to harmonize the review period under the FSPA with the review period of six years for marine strategies provided for in the Marine Strategy Framework Directive (2008/56/EC / MSFD)¹⁵⁰ and to thereby ensure a timely adaptation of spatial plans to the knowledge gain expected within the MSFD system. Moreover, the planning process itself is not under regular evaluation in Germany.

According to Section 8 para. 4 of the FSPA, significant impacts of the implementation of the spatial plans are to be continuously monitored in order to identify unexpected impacts on the environment at an early stage and to be able to take appropriate corrective measures. The intended plan-related monitoring measures include the consolidation and analysis of project-related impact monitoring efforts and the analysis of national and international monitoring programmes.¹⁵¹ However, no monitoring has to take place to examine whether the plans continuously reflect the latest state of knowledge and whether the highest practicable level of protection for marine ecosystems is achieved.

5.1 Ecosystem Definition

To avoid marine spatial planning being ‘decoupled from the ecosystem despite being framed as a tool for ecosystem-based management’¹⁵² the characteristics of ecosystems have to be taken into account and ecosystem protection prioritised as the ultimate objective of the ecosystem approach. According to Art. 2 of the Convention on Biological Diversity, the term ‘ecosystem’ means a ‘dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit’. This definition does not specify any particular spatial unit or scale. Depending on the problem being addressed, an ecosystem could, for example, be a grain of soil, a pond, a forest, a biome or the entire biosphere.¹⁵³ Several key characteristics of an ecosystem have been identified.¹⁵⁴ For the purpose of spatial planning, it is interesting that an ecosystem is considered to exist in a space with boundaries, even though such geographical boundaries can never encompass all relevant ecosystem processes. What presents a major challenge for considering ecosystems in marine spatial planning is, however, that they are dynamic; thus their structure and function change with time.

Ecosystem management that tries to isolate significant system components has been recognized as being incompatible with the fundamental nature of marine ecosystems. A wider systems context thus has to be taken into consideration when developing spatial planning measures aimed at ecosystem protection.¹⁵⁵ The ecosystem must be managed ‘as a whole rather than as the sum of its parts’.¹⁵⁶ This requires the recognition of living species and their physical environments as interconnected and a focus on the interaction between different sub-systems and their responses to stresses resulting from human activity.¹⁵⁷ The question arises as to whether the German spatial planning tools provide for the possibility to fully account for the characteristics of ecosystems and to what extent they have been used so far to ensure ecosystem protection.

5.2 Respect of the Carrying Capacity of Ecosystems

The carrying capacity of marine ecosystems may be understood as the development threshold that cannot be exceeded without irremediably going against environmental objectives.¹⁵⁸ Approaching the limits of the carrying capacity of marine ecosystems may result in the deterioration of ecosystem services, the loss of biodiversity and habitat heterogeneity and, finally, the breakdown of ecosystem resilience.¹⁵⁹ According to recital 14 of the MSP-Directive, the ecosystem-based approach thus aims at ensuring that the capacity of marine ecosystems to respond to human-induced changes is not compromised. It is questionable whether the stipulations of the FSPA ensure the preservation of the capacity of marine ecosystems to cope with environmental stress. According to the general guideline for spatial development set out in Section 1 para. 2 of the FSPA, the social and economic demands have to be reconciled with the relevant area’s ecological functions. Spatial development is thus not purely dominated by ecological considerations.¹⁶⁰ Preserving ecological functions, however, constitutes, according to the wording of Section 1, the benchmark for the consideration of social and economic interests.

To implement Art. 5 para. 1 of the MSP-Directive, Section 2 para. 2 no. 6 of the FSPA now promotes the support of sustainable development in the marine area, applying an ecosystem-based approach. The EBA-Guideline also refers to the sustainable use of ecosystems. Sustainability is often considered to require the achievement, in equal value, of its three pillars: economic, environmental and social issues.¹⁶¹ Linking the ecosystem approach with ‘sustainable use’ therefore seems to risk diluting its ecological direction and thrust and thus undermining the protection of ecosystems.¹⁶² Since functional ecosystems are an essential precondition for social and economic development, the balance between economic, social and environmental interests, however, can be found only within the framework of environmental compatibility.¹⁶³ The concept of sustainable development thus implies limits imposed by the ability of the biosphere to absorb the effects of human activities.¹⁶⁴

According to the FSPA (Section 7 para. 2), public and private interests are to be identified and weighted against each other in view of the preparation of the spatial plans. When balancing the different interests, the results of the environmental assessment have to be taken into account. At least if the sea could be affected by planning decisions to such an extent that its ecosystems might not recover, it is hard to imagine that sufficient weight has been given to the protection of the environment in the balancing process.¹⁶⁵ Allowing anthropogenic activities to exceed the carrying capacity of the marine environment would most likely constitute a manifest error of assessment and would therefore also exceed the discretionary power attributed to the planning authority by the FSPA. Beyond that limit, however, no principal priority has to be given to ecological considerations.

Consequently, the aforementioned stipulations of the FSPA theoretically seem to ensure at least respect for the carrying capacity of marine ecosystems within the planning process. To ensure respect for the carrying capacity of ecosystems in practice, ideally, specific limits are identified for pressures on marine ecosystems and planning stipulations designed accordingly. Yet, significant questions arise as to whether a specific threshold for an entire ecosystem can really be set due to the complexity and dynamic quality of ecosystems.¹⁶⁶ In this regard, recital 13 of Commission Decision (EU) 2017/848 is interesting, according to which the setting of threshold values should accommodate the dynamic nature of marine ecosystems and their elements. Furthermore, threshold values should reflect the fact that marine ecosystems may recover, if deteriorated, to a state that reflects prevailing physiographic, geographic, climatic and biological conditions, rather than return to a specific state of the past.¹⁶⁷ In the face of uncertainty, the application of the precautionary principle through the incorporation of appropriate safety margins can help to avoid irreversible harm to the marine environment.

5.3 Ecosystem Protection in the FSPA and the Marine Spatial Plans

One of the principles for nature conservation listed in Section 2 para. 2 no. 6 of the FSPA that can be equally applied in the terrestrial and the marine area is that space shall be developed, protected and, where necessary, possible and appropriate, restored to maintain the functioning of soils, the water balance, the fauna and flora as well as the climate, including respective interactions. To fully implement Art. 5 para. 1 of the MSP-Directive, support for the sustainable development of the marine area using the ecosystem approach is now required.¹⁶⁸ The FSPA, however, contains no detailed specification taking account of the special characteristics of the marina area and its exposure to special threats.

The focus of marine environmental protection in the spatial plans for the EEZ is, according to Guideline 2.5, on marine fauna and flora including their biotopes and habitats and on bird migration routes. Sea water quality, hydrography and sediment conditions are also considered part of the marine environment. Principles specifically for the protection of the marine environment can be found in Section 3.7 on the marine environment. According to those principles, the EEZ shall be permanently safeguarded and developed further as an ecosystem with its typical features, interrelationships and interactions in order to preserve its biological diversity. In accordance with the guiding concept of sustainability, the natural resources shall be used economically and with care. Negative impacts on the ecosystem shall be avoided and minimized in accordance with the precautionary principle and the ecosystem approach. In addition, in permanently unused areas, the functions of the ecosystem are required to be restored to their original condition or preserved in a condition of ecological balance (3.7.1 Principles / Marine ecosystem).

In the section that specifically deals with the protection of the marine environment, only principles have been determined, not binding targets. The predominant approach of the German marine spatial plans to marine nature protection is a source-related approach, which means that principles and targets are set for certain uses in order to mitigate their impacts on the marine environment. Since it cannot be excluded that new maritime uses may emerge or that the impacts of maritime uses may be aggravated in an unexpected way, the rather general and non-binding principles for the protection of the marine environment might not ensure a complete and comprehensive protection of ecosystems.

5.4 Potential of German Spatial Planning Tools for the Advancement of Ecosystem Protection

To apply the ecosystem approach, planning authorities can ideally choose from a broad suite of tools and apply and adapt them according to the circumstances in the area under their responsibility.¹⁶⁹ The FSPA permits the establishment of different zones with different levels of protection. For example, core areas can be designated as priority areas and buffer zones as reserve areas. In that way, it is possible to ensure that activities occurring near a priority area protecting a particular ecosystem do not compromise its function. The designation of suitability areas furthermore allows the concentration of environmentally harmful uses in those areas. The Zoning Plan that covers the entire Great Barrier Reef Marine Park can serve as an example of a holistic and ecosystem-wide zoning approach. The plan defines what activities can occur in which locations both to protect the marine environment and to separate potentially conflicting activities. The level of protection increases from the General Use Zones up to the most restrictive, the Preservation Zone.¹⁷⁰ Although the entire system is a designated Marine Protected Area, the management approach resembles that of spatial planning. In Germany, it would be possible to establish a similar multi-layered protection system by using the possibilities offered by the FSPA.

Moreover, some ecosystem components only require protection in one of the three dimensions of the sea (water surface, water column, and sea bed). For example, benthic communities only need protection from impacts on the sea bed, such as those from bottom-trawl fisheries. A ‘layering’ of areas with different levels of protection is possible to adapt the density and strictness of planning determinations to the specific need for protection in each layer.¹⁷¹ In this context, the spatial plans explicitly recognize in their Guideline 2.4 that the sea surface, water column, seabed, subsoil and the airspace above may require different provisions regarding their protection and use. The explanatory statement for the draft amendment of the FSPA also clarifies that the uses and functions are to be coordinated by taking their extension to the three-dimensional space into account.¹⁷² In this regard, spatial planning could again learn from the experiences of regulation of uses in Marine Protected Areas. In Canada, for example, the Hecate Strait and Queen Charlotte Sound Glass Sponge Reefs Marine Protected Area was designated in February 2017. Each glass sponge reef has a Core Protection Zone, a Vertical Adaptive Management Zone, and an Adaptive Management Zone. The Core Protection Zones consist of the seabed, the subsoil to a depth of 20m and the water column above the seabed to a depth of about 100m below the sea surface.¹⁷³

Even dynamic ecosystem components can be protected by the German spatial instruments. Examples of dynamic ocean features include eddies or fronts or the seasonal migration of species.¹⁷⁴ However, to achieve a binding effect of respective spatial planning measures, the areas to be protected must be clearly identifiable. For example, in Australia, meso-scale eddies have been identified as key ecological features of the South-west Marine Region in the marine environment report card supporting the marine bioregional plan for that region. These eddies are persistent and form regularly in predictable locations.¹⁷⁵

As noted in Section 4 lit. c above, temporal aspects can also be taken into consideration as a ‘fourth dimension’ of planning within the German system, taking account of the fact that the need for protection of ecosystem components can vary over time. The new Section 7 para. 1, which permits stipulations that allow uses only for a certain period of time or only under certain circumstances, clarifies that, for example, a priority area can be established only for a certain season.¹⁷⁶ The new wording also serves the implementation of Art. 8 para. 1 of the MSP-Directive which makes reference to the temporal distribution of activities.

Being derived from terrestrial spatial planning, the rather static German marine spatial planning system seems ill-prepared for a shift towards innovative approaches of near real-time management that match the highly dynamic nature of marine ecosystems.¹⁷⁷ There is, however, the possibility to constantly update planning stipulations through the incorporation by reference of the latest scientific findings, as long as the decision to do so is taken within the structured and collaborative spatial planning process. For example, the switch-off of wind turbines could be required in dependence on the latest data on bird migration. In that way, elements of dynamic management could be integrated into the spatial plan to keep up with the advances in data collection and sharing, particularly in remote sensing, animal tracking, and mobile technology. By increasing the speed at which scientific findings are implemented, this method can help to alleviate the disadvantages of the lengthy and complicated spatial planning process. To conclude, even though the German spatial planning tools have not been designed specifically for the purpose of applying an ecosystem approach, the FSPA largely provides for the possibility of both spatial and temporal adaptation of spatial planning measures to the needs of ecosystem protection.

Since marine ecosystems rarely have the character of an island but rather merge into each other,¹⁷⁸ the design of spatial planning measures corresponding to ecosystem boundaries remains a challenging task. For ecosystem-based zoning, an orientation on existing recommendations for the design of networks of marine protected areas could be considered. For example, the recommendations to use complex site shapes, rather than simple rectangular boundaries or to establish ‘mosaic’ zones,¹⁷⁹ could help to design priority or reserve areas whose boundaries relate closely to the features of an ecosystem. For spatially dynamic habitats such as sandbanks, boundaries could, where possible, encompass predicted changes in feature distribution to ensure their ongoing protection.¹⁸⁰ Another difficulty in defining ecosystem boundaries stems from the variability of some ecosystem features. For example, an area in which a gyre enhances primary production or where fish forage cannot be mapped with the same precision as a sea-grass meadow or a reef. To cope with that difficulty, stable features important for ecosystem functioning could be accurately mapped and complemented by the mapping of the distribution of habitats on the bottom and the behavioural patterns of important species.¹⁸¹ The generation of such maps would constitute an important step forward with regard to ecosystem protection in the German marine spatial plans.

5.5 Protection of Areas with Particular Significance for Ecosystem Functioning

Protection of ecologically valuable areas plays a crucial role in the protection of ecosystems. In Germany, large parts of the coastal zone have already been protected through the establishment of Natura 2000 sites. On the coast of the North Sea, for example, the unique and largely untouched Wadden Sea is protected. Natura 2000 sites often overlap with areas protected by other national protection categories such as nature conservation areas, national parks, national nature monuments, biosphere reserves, landscape protection areas, nature parks, natural monuments, protected landscape elements and legally protected biotopes.¹⁸² Each of the national categories provides for a different degree of protection and for corresponding restrictions on anthropogenic activities. For example, in nature conservation areas, all actions which may lead to the destruction of, damage to, or changes in the area, or parts thereof, or which may cause permanent disturbance thereto, are prohibited.¹⁸³ Within the territorial sea, spatial planning instruments are used as a complement to protect particularly vulnerable marine areas. In the State Spatial Development Programme of Mecklenburg-Western Pomerania, for example, Natura 2000 sites encompassing marine areas are planned to be established as reserve areas.¹⁸⁴

In the EEZ, responsibility for Natura 2000 sites lies with the federal government. Germany notified the European Commission in 2004 of its nomination of ten Natura 2000 sites in the German EEZ in the North Sea and the Baltic Sea. In September 2017, the ten sites were finally given protection at national level through six protected area regulations.¹⁸⁵ The new protected areas cover approximately 30 percent of the German EEZ,¹⁸⁶ which is in compliance with a recommendation issued in 2013 by the Scientific Advisory Board of the Federal Government for global environmental changes (WBGU) to protect 20–30 percent of the marine ecosystems.¹⁸⁷ However, whereas in the spatial plans for the EEZ priority areas have been designated for shipping, pipelines and cables as well as for wind energy development and reserve areas have been designated for shipping, pipeline, and research uses, neither Natura 2000 sites nor other ecologically significant areas received any additional protection through spatial planning measures, as recommended, for example, in the planning contribution of the Federal Agency for Nature Conservation of 2006.¹⁸⁸ Natura 2000 sites have rather only been listed for information. This approach is justified in the spatial plans as follows: ‘European bird sanctuaries and areas listed under the Habitats Directive in the EEZ enjoy comprehensive protection under nature conservation law. Since these areas are of importance to overall spatial planning considerations, they have been included in the Spatial Plan for information in order to enable the spatial requirements of individual uses to be coordinated. Based on the environmental report, bird sanctuaries and the Sites of Community Importance in the EEZ have been taken into account in the provisions of the Spatial Plan.’¹⁸⁹

In some source-related spatial planning measures, i.e. measures that regulate the conditions for specific uses, explicit reference is made to protected areas. For example, the section on pipelines and submarine cables requires that consideration is given to protected area designations when routeing pipelines and submarine cables.¹⁹⁰ Furthermore, the plans stipulate that offshore wind turbines outside the designated priority areas are not allowed in Natura 2000 sites. Offshore wind farms already approved and those having reached an advanced stage in the approval procedure when the spatial plan entered into force are exempted from this regulation.¹⁹¹ In this way, about 28 percent of the German EEZ in the North Sea is kept free of offshore wind farms.¹⁹²

In conclusion, the plans do not yet make full use of the possibilities that the FSPA offers to protect areas important for ecosystem functioning. For example, the management of protected areas could be supported by complementing spatial planning measures and the focus of protection broadened to include species and habitats not addressed by the current protected area regulations.¹⁹³ Moreover, protection could be spatially expanded to include further functionally important areas such as areas important for key life cycle stages and behaviours, areas of high biodiversity and areas of high productivity. To identify additional areas that need to be protected by spatial planning measures, the scientific criteria adopted in 2008 by the ninth meeting of the Conference of the Parties to the Convention on Biological Diversity (COP 9) for the identification of Ecologically and Biologically Significant Areas (EBSAs) could be used. The criteria listed are: uniqueness or rarity; special importance for life history stages of species; importance for threatened, endangered or declining species and/or habitats; vulnerability, fragility, sensitivity or slow recovery; biological productivity; biological diversity; and naturalness.¹⁹⁴ The procedure to identify EBSAs in the Baltic Sea is still in progress at this time, but HELCOM has already accepted the potential use of EBSAs as a basis for ecosystem-based MSP measures.¹⁹⁵ A further possible approach is the protection of portions of marine space that are especially highly connected with each other (‘Cells of Ecosystem Functioning’¹⁹⁶) by corresponding spatial planning measures. The special connection may result from common climatic, biogeographic or oceanographic conditions.¹⁹⁷ However, such ‘Cells of Ecosystem Functioning’ are difficult to sharply define.¹⁹⁸

5.6 Consideration of Connectivity

The marine environment is ecologically connected through movements of species, nutrients and energy.¹⁹⁹ This connectivity in marine systems operates at scales ranging from microns to thousands of kilometres.²⁰⁰ Connectivity can be defined either structurally or functionally. Structural connectivity refers to the spatial arrangement of specific features in the sea, whereas functional connectivity refers to the behaviour of species and ecological processes.²⁰¹ The maintenance of connectivity in the marine area seems crucial for the protection of ecosystems.

With regard to connectivity, the FSPA states that the needs of the biotope network have to be considered in spatial planning.²⁰² For example, Section 6.1 of the State Spatial Development Programme of Mecklenburg-Western Pomerania on environment and nature protection stipulates that, to promote biological diversity and ecosystems typical for the region, Natura 2000 sites and areas of the biotope network are to be connected (Principle 4). In contrast, the current marine spatial plans for the EEZ state that there has not yet been sufficient research into the extent that marine ecosystems, which are more permeable than terrestrial ecosystems and largely barrier-free, may be equally dependent on biotope networks to be defined in a spatial plan, and how possible components can be delineated. Therefore, detailed designations for a biotope network have not yet been possible. However, measures are required to be taken to ensure that dispersion processes and large-scale ecological interactions of species and habitats are taken into account at the approval level (cf. justification for the spatial planning regulations on exploitation of non-living resources / Section 3.2). In addition, according to Guideline 2.5, disruptions to and pollution of the marine ecosystem and the related natural functions, systems and processes are to be avoided and biological diversity promoted and preserved.

The establishment of networks of protected areas, which facilitate an undisturbed exchange of organisms and nutrients, is considered as an essential element of ecosystem-based marine spatial planning.²⁰³ The importance of such networks is recognized by the EU²⁰⁴ as well as by OSPAR and HELCOM.²⁰⁵ Nevertheless, protected areas in Germany currently constitute ‘islands of protection’ rather than linked networks. Spatial planning measures could help form a network of protected areas by protecting the migration paths of certain species to connect their sub-habitats or scattered populations, or by connecting similar habitats to reinforce the respective protection effect. The degree of protection of the connecting areas, for example migration corridors or stepping stones, would have to be at least commensurate with the function they need to fulfil.²⁰⁶

In the programme of measures adopted in Germany to implement the MSFD, a new measure ‘to protect migratory species in marine areas (UZ3–02)’ refers explicitly to the process of spatial planning. It is planned to assess the possibility of including priority areas and reserve areas, following regional (for North and Baltic Seas) and national (between federal level and federal state level) coordination, which serve as migration corridors for migrating species between areas of ecological importance. Ideally these will form a habitat network in the sense of a coherent network of protected areas.²⁰⁷ There is therefore good reason to hope that the next generation of spatial plans will contain migration corridors and that protected areas will therefore be better connected.

A more comprehensive option for taking connectivity into account in marine spatial planning is to implement the idea of building a ‘green infrastructure’ in the sea, as promoted, inter alia, by the EU.²⁰⁸ Green infrastructure is ‘a strategically planned network of natural and semi-natural areas with other environmental features designed and managed to deliver a wide range of ecosystem services’.²⁰⁹ The concept is aimed at performing four broad roles that seem to correspond to the holistic objectives of the ecosystem approach: protecting ecosystems state and biodiversity; improving ecosystem functioning and promoting ecosystem services; promoting societal wellbeing and health and supporting the development of a green economy; and sustainable land and water management.²¹⁰

Green infrastructure features include Marine Protected Areas, areas of high value for biodiversity and ecosystem health outside protected areas, ecological corridors, stepping stones corridors and ecological buffer areas.²¹¹ HELCOM has emphasized the importance of the concept for marine spatial planning by stating that, through that concept, habitats and biotopes, as well as their interconnectivity and seasonal variability could be captured into spatial presentation.²¹² To ensure a comprehensive protection of the environment, it has further been recommended that the design of green infrastructure for purposes other than biodiversity should never entail negative trade-offs. In this regard, biodiversity has been considered the ‘judge’ playing a key role in navigating between bad, good and better choices.²¹³ This recommendation seems also suitable to be applied within the balancing of interests in the spatial planning process in view of an efficient ecosystem protection.

The main problem with regard to the consideration of connectivity within marine spatial planning is that connectivity issues are still poorly understood and are difficult to take into account if a specific migration path of species between identified places is unknown. In the absence of detailed dispersal data, connectivity can only be approximated by ensuring protection of a well distributed space or by having recourse to general assumptions. For example, connectivity can be assumed to more often follow similar depth, temperature and salinity values than cross them or to follow the general paths of currents, eddies, and gyres.²¹⁴ When designing spatial planning measures to ensure connectivity, care has furthermore to be taken that the different aspects of connectivity are taken into account and that the focus is not put on one element or one species to the detriment of others.²¹⁵

5.7 Protection of Open Space

The viability of ecosystems decisively depends upon sufficient open space and unspoiled nature.²¹⁶ If the critical parameters are left undisturbed, it is likely that a natural system will remain within its normal range of variation.²¹⁷ In the face of the knowledge deficit with regard to connectivity, protecting an appropriate amount of open space appears to be, consistent with the precautionary principle, the best option to ensure ecosystem protection. The FSPA stipulates in this regard the principle that open space should be protected, fragmentation effects reduced and additional land use limited.²¹⁸

To put this principle into more concrete terms, in the spatial plans, a guideline on long-term sustainable use of the properties and potential of the EEZ has been formulated that aims to preserve the sea as an area characterized by vastness, openness, and freedom from barriers (Guideline 2.4). The basic premise is that stationary uses must be reversible and can only be allowed for limited periods of time. Moreover, the available space should be used economically, for example, by promoting a combination of uses.

Details for the protection of open space are regulated under the individual activities. For example Section 3.2.1 on the exploitation of non-living resources provides that, to ensure an efficient use of space, the exploitation of raw material resources should be concentrated in an area and should be as small-scale as possible. Existing sand and gravel sites should be exploited to the maximum extent practicable. This only applies provided that it is compatible with marine environmental concerns and that a remaining sediment layer, which is necessary for the recovery of benthic communities, is preserved (Principle 4). Furthermore, Principle 3 on the marine environment states that the seascape should be safeguarded in its natural character and its typical vast open spaces should be preserved. The large spaces of the EEZ should be permanently preserved, developed and safeguarded as an ecologically intact open space, acknowledging their importance to a functional seabed, the water budget, fauna and flora (biodiversity), and climate. Thus, the importance of the protection of open space has been recognized in the plan.

Even though those stipulations help to reduce impacts of ocean sprawl on connectivity and ecosystem functioning,²¹⁹ they do not yet ensure that a certain absolute area is kept free from human activities. Such protection could be implemented by designating areas especially for the protection of processes and thus for the undisturbed development of nature.²²⁰ Such areas must be of sufficient size to enable processes relevant for the functioning of ecosystems to unfold. For the Wadden Sea, the tidal basin has been considered the smallest spatial unit which contains all relevant ecological subsystems, biotopes and habitats.²²¹ As a further development, quantitative targets for the use of space could be set for the EEZ.²²² Through the new Section 2 para. 2 no. 6 of the FSPA, regional planning authorities are, for example, encouraged to set quantitative targets for the terrestrial area to support the goal of the federal government to reduce the new land use for human settlements and transport area to 30 hectares per day by 2020.²²³