“Environmental damage” is defined as damage to protected species and natural habitats, damage to water and damage to soil. The legal instruments define “damage” as a measurable adverse change in a natural resource or measurable impairment of a natural resource service which may occur directly or indirectly.

Environmental damage is linked with damage to protected species, natural habitats and water status as well as land damage and contamination. Each of these based on parameters established under the Environment Liability Directives and the related thematic EU Directives and national legislation, as well as criteria to determine significance of damage  included in Schedule I of the national regulations.

Schedule II of the national regulations set out a common framework to be followed in order to choose the most appropriate measures to ensure the remedying of environmental damage.

The regulations also indicate those operational activities which might lead to environmental damage. Operators carrying out dangerous activities listed in Schedule III of the national regulations and Annex III of the Directive fall under strict liability. It is also relevant that operators carrying out other occupational activities than those listed in Schedule III may be liable for fault-based environmental damage.

These regulations apply without prejudice to other more stringent national or EU legislation regulating the operations of any of the activities, including actions affecting Natura 2000 sites and protected species under the EU’s Habitats and Birds Directives.

In view of the various challenges at EU level in one of the most crucial definitions, it also noted that the European Commission is developing further guidelines to assist on the common understanding of the term ‘environmental damage’ as defined in the ELD. Once such work is agreed at EU level, such guidelines are expected to help to improve the evidence base through a better common understanding of this key term, aligning better the practical application of the Directive within the EU.

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