Appeals of ecological organizations in offshore wind energy

Baltic Power Sp. z o.o. has already obtained the decision of the Regional Director of Environmental Protection in Gdansk dated September 17, 2021, mark: RDOŚ-Gd-WOO.420.42.2020.AJ.21, on the environmental conditions for the project titled: “Baltic Power Offshore Wind Farm,” however, this was not the final end of many years of efforts to obtain the aforementioned decision. This is related to the fact that on October 15, 2021, the foundation “Grand Agro Foundation for Environmental Protection”, in accordance with the provision of Article 44 (2) of the so-called EIA Act concerning the participation of environmental organizations in proceedings requiring public participation – filed an appeal against the above decision.

The foundation mentioned in its appeal against the environmental decision that the body of first instance, the RDOŚ (Regional Director of Environmental Protection) in Gdansk, did not provide sufficient time for a fair reference to the collected evidence. On the other hand, in terms of environmental aspects, according to the foundation presented above, the analysis of the impact of the OWF on seabirds and migratory birds, as well as on ichthyofauna – is based on optimistic assumptions regarding the response of fauna and the possibility of their recovery in the investment area at the stage of operation. In addition, each element is analyzed independently, without considering the broader impact on the ecosystem through the complexity of the relationships between environmental elements. The Foundation also stated that the EIA report for the Baltic Power offshore wind farm did not analyze, among other things, the impacts consisting in the slow release of structural elements of the rotors into the seawater as a result of contact with sea salt, the impact of the investment on sea currents and the gravitational movement of sediments along the seabed associated with the interference with the seabed. Indeed, these phenomena may affect the ecosystem by changing the directions and strength of coastal erosion, which may consequently affect the subsequent habitability of organisms associated with existing conditions. It was also cited as a concern that the report did not sufficiently analyze the impacts of the OWF on the coastal climate that would result from slowing winds. The report mentions a minor impact of the wind farm on the climatic conditions of the South Baltic. According to the environmental organization, this is an erroneous statement, as even minor changes in the flow of moist sea air can cause significant changes in precipitation in areas far from the offshore wind farm.

The result of the application for revoking the environmental decision for the Baltic Power offshore wind farm presented above was the decision of the General Director of Environmental Protection (GDOŚ) dated June 29, 2022, marked: DOOŚ-WDŚZOO.420.59.2021.SP.10, revoking in its entirety the decision of the Regional Director of Environmental Protection in Gdańsk on environmental conditions for the Baltic Power offshore wind farm project dated September 17, 2021, and ruling – by determining the environmental conditions for the above project. The decision was based on the analysis of the collected evidence and the content of the decision of the RDOŚ in Gdansk. According to GDOŚ, the environmental decision issued for the Baltic Power offshore wind farm does not resolve the issue of environmental conditions for the implementation of the project, and the conditions presented in the decision are vague and unclear, and a significant part of the conditions arise from the current regulations, while others do not address environmental issues. The GDOŚ document on the appeal of the environmental decision also mentions an erroneous provision posted by the RDOŚ in Gdansk, which says that the applicant can choose the conditions indicated in the adjudication. The error stems from the fact that the settlement contained in the decision should be the essence of the decision, so it must not be questionable and must be unambiguous. “The settlement must be formulated in such a way that there is no doubt as to what it concerns, what rights have been granted to the party or what obligations have been imposed on it.” It was this aspect that determined the revocation of the previously issued environmental decision for the Baltic Power offshore wind farm, as the RDOŚ’s ruling in Gdansk violates the EIA Act, more specifically, Article 107(1)(5) of the Code of Administrative Procedure and Article 82(1)(1)(a, b and c) and (2)(b, c).

The imprecision of the environmental decision issued for the Baltic Power offshore wind farm resulted in the fact that in the document issued by the GDOŚ relating to the appeal of the decision, among other things, updated conditions for the use of the environment at the stage of implementation and operation, environmental protection requirements necessary to be included in the documentation required for the issuance of the decision were specified, while the greatest attention was paid to the imposition of the obligation to monitor the impact of the project on the environment, both at the pre-investment, construction and post-execution stages.

The originally issued environmental decision by the RDOŚ in Gdansk imposed an obligation of monitoring in terms of surveys of seabirds and harbor porpoise before the start of construction, underwater noise and harbor porpoise monitoring at the construction stage, as well as a wide range of post-implementation monitoring – ichthyofauna, seabirds and migratory birds, harbor porpoise, benthic organisms and bats.

On the other hand, in the decision issued by the GDOŚ on June 29, 2022, the scope of monitoring was significantly expanded. In the case of the pre-investment stage, seabird monitoring was again imposed, although the frequency of bird counts was increased from no less than 1 trip per month in the period from the beginning of October to the end of May to no less than 2 trips in each month constituting the study period. In addition, it was ordered:

• to conduct acoustic background measurements for three sea states (at about 2, 4 and 6 Bft), which make up underwater noise monitoring,
• to carry out a one-time survey of water quality, taking into account hydrochemical parameters such as oxygen conditions (dissolved oxygen), total organic carbon (OWO), acidification (pH), concentration of biogenic substances (ammonium nitrogen, nitrate nitrogen, total nitrogen, mineral nitrogen, phosphates, total phosphorus), water turbidity, total suspended solids, and concentrations of harmful substances in water and bottom sediments (m. including mercury, heavy metals, phenols, mineral oils, polycyclic aromatic hydrocarbons and polychlorinated biphenyls).

For the construction phase, just as the RDOŚ in Gdansk, the General Director of Environmental Protection ordered:

• to conduct underwater noise measurements (throughout the period of work related to piling foundations and support structures into the seabed),
• to carry out monitoring of marine mammals using C-POD equipment, which should be started no later than 6 months before the start of construction and continued throughout the construction phase.

The scope of research during the construction phase was further expanded to include monitoring of seabirds (visual observations with a frequency of no less than 2 trips per month) and sediment dispersion studies. The latter, should be started immediately before the start of works interfering with the seabed, causing sediment agitation. These surveys should include measurements of water turbidity, determination of the extent and concentration of total suspended solids, and determination of the thickness of deposited bottom material.

However, the largest number of obligations to monitor the environmental impact of the project were imposed by the GDOŚ at the post-construction stage, i.e. during the operation phase of the Baltic Power OWF project. As in the case of the environmental decision of 2021, the position on the obligation to monitor was maintained:

• ichthyofauna (in spring and summer in the 1st and 5th years after the completion of construction),
• seabirds (surveys for the first 3 years of OWF operation relative to the 2 years set in the earlier decision),
• migratory birds (surveys for the first 3 years after the completion of construction relative to the survey recommendations in the first and fourth year after the completion of construction in the earlier decision),
• marine mammals (surveys for porpoises and seals for the first 3 years after construction relative to the 2 years of surveys imposed in the 2021 decision),
• benthos – both benthic flora and fauna, as well as macrozoobenthos (benthic surveys should be carried out a minimum of 3 months after the completion of construction and 2 and 4 years after the first survey),
• bats (which should be conducted for a period of 3 years after the completion of construction during migration periods).

In addition, the scope of monitoring was expanded to include control measurements of underwater noise during the operation stage (which should be conducted no later than 12 months after the completion of the construction stage) and measurements of hydrochemical parameters of water (the same as for the pre-investment stage) at a frequency of once a year. An obligation was also imposed to monitor the mortality of migratory birds, which should be carried out for 5 years after the completion of the construction stage during the migration seasons – spring and autumn, using automatic bird collision detection systems mounted on 3 wind turbines.

The GDOŚ also imposed an obligation to carry out a procedure for assessing the environmental impact of the Baltic Power OWF, with particular regard to the cumulative impact of the project with other offshore wind farms for which decisions on environmental conditions have been issued, and taking into account the impact of the project in terms of underwater noise emissions. There is also a requirement to present a post-execution analysis in the scope covering the impact of the Baltic Power OWF, on the basis of the mandatory monitoring presented above. The final reports with the analysis should consist of two parts – the results of the research from a given period and a comparison of the results with the findings contained in the report on the impact of the project on the environment and in the decision on environmental conditions.

The situation presented above makes it possible to bluntly observe the growing involvement of environmental organizations, which – in accordance with the EIA Act – can appeal against the environmental decisions obtained. Thus, it is not excluded that there will be similar cases in the future. In addition, the issue of the correctness of environmental decisions for offshore wind farm projects is likely to be an object of interest for more environmental organizations, so it is extremely important to expect similar situations in the future. This particular case of an appeal against an environmental decision and the decision issued by the GDOŚ brings new and requiring detailed analysis aspects for future environmental impact assessment procedures for further offshore wind farm projects in the Polish exclusive economic zone.