The Journal is published by the Nature Conservation Agency of the Czech Republic in cooperation with the Cave Administration of the Czech Republic, the Krkonoše Mts. National Park Administration, the Bohemian Forest Mts. National Park Administration, the Podyjí National Park Administration and the The Bohemian Switzerland National Park Administration. It has been published since 1946.
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Nature Conservation 2023 — 5. 6. 2023 — Nature Conservation Legislation — Print article in pdf
In the Czech Republic, principles of current special species protection come from the second half of the 1980s. They entered into practice by Act No. 114/1992 Gazette on Nature Conservation and Landscape Protection, as amended later, and since that time they – except small adjustments due to transposing and implementing the European Union legislation before joining the EU- have not been changed. Moreover, knowledge has been significantly improved during the thirty past years and the state of nature and the landscape has also significantly shifted across the whole country´s territory. Long-term negative effects are currently amplified and multiplied by climate change impacts. It is clear that species protection tools have been in many aspects outdated and their effectivity has been insufficient. We are not able to halt species richness/diversity decline and loss and to effectively protect, conserve or manage habitats of the individual species as a basic precondition of their survival. A lot of necessary changes can be reach only by those in methodologies and approaches in performing State/Public Administration and setting out economic/financial tools without changes in legislation. Nevertheless effective protection and providing the most threatened species with management need new legislation dealing with Special Species Protection, conservation and management
The Marsh fritillary (Euphydryas aurinia), an endangered butterfly according to the Red List of Threatened Species of the Czech Republic, which is among the most endangered diurnal butterflies in Europe (in the Czech Republic, it occurs only in western Bohemia), is not included in the current decree, and therefore the Nature Conservation Agency of the Czech Republic cannot prepare and implement an Action Plan/Recovery Programme for it. © Václav John
Act No. 114/1992 Gazette on Nature and Landscape Protection, as amended later (hereinafter the ANCLP) combines the so-called General Species Protection of species, ensuring all populations of wild species protection from destruction or damage, with Special Species Protection, which ensures protection of selected rare and endangered species. The list of these species is given by the implementing legislation, Decree No. 395/1992 Gazette (hereinafter the Decree). Simultaneously, through Special Species Protection and the so-called General Protection of Wild Birds, the transposition of the Habitats Directive (92/43/EEC) and the Birds Directive (2009/147/EC) is ensured in the ANCLP, which both include requirements relating to the protection of individual species. Wild vertebrates are further protected by the provisions of Act No. 246/1992 Gazette on the Protection of Animals against Cruelty, as amended, which also includes provisions relating to wild animals and reflects, inter alia, the requirements of the above-mentioned Directives in prohibited hunting methods or wild animal trapping. The protection of some so-called conflict wild animal species is further strengthened by Act No. 115/2000 Gazette on Compensation for Damage Caused by Selected Specially Protected Animals. The prevention and remediation of environmental damage to protected species or natural habitats is part (along with other areas) of Act No. 167/2008 Gazette on Prevention and Remedying Environmental Damage – however, due to a number of conceptual and procedural ambiguities, the latter has not yet been applied in practice.
In the Czech Republic, the current landscape is mostly made up of a mosaic of intensively cultivated areas, abandoned or variously degraded areas, and built-up areas. At the same time, building-up and impassability of the landscape has been increasing, inappropriate agricultural, forestry, and pond management persists, and the negative process of landscape homogenization has been continuing. It is obvious that both the species bound to the last fragments of original natural habitats and the traditionally managed and used landscape until the first half of the 20th century are on the verge of extinction. We are therefore witnessing the mass extinction of entire guilds of species (e.g. ČÍŽEK et al. 2009, VERMOUZEK at al. 2018). A necessary step to the overall improvement of the state of the landscape and its use is not a legislative change, but better use of the existing legislative instruments of general nature conservation nd landscape protection (LACINA & PEŠOUT 2018); for example, changing the paradigm of the Territorial System of Ecological Sustainability (TSES), a national multilevel ecological network (HLAVÁČ & PEŠOUT 2017), more consistent application of Significant Landscape Element (SLE) protection and other tools of general nature conservation (PEŠOUT & HOŠEK 2012), and the use of land-use/territorial planning tools both for the protection of valuable areas and of species (PEŠOUT et al. 2018 a, 2018b) and better targeting of subvention programmes/subsidy schemes for landscape management (e.g. ČÁMSKÁ 2018). The acute need for change in our approach to the use of nature and the landscape is also reflected in new European Union´s legislation on nature restoration (Nature Restoration Law), which is currently being discussed, and should be reflected in the Czech Republic in the near future (HAVEL 2022, STEJSKAL 2022).
The current Special Species Protection in insects leads to penalties and criminalization of entomologists keeping Specially Protected Species individuals in collections, while not ensuring effective habitat conservation, protection and management. © Nature Conservation Agency of the Czech Republic Archive
Landscape protection as a whole is complemented by area-based/territorial nature conservation – Specially Protected Areas and Natura 2000 sites create islands or stepping stones for part of the natural values and populations of the individual endangered species. In Specially Protected Areas, the planning and implementation of management, as well as its evaluation are ensured, also with regard to endangered species, if they are the subject of protection of the respective protected areas, or are a quality indicator of a protected habitat. However, Specially Protected Areas can only ensure the long-term survival of a small group of organisms; they can only partially affect the condition of most endangered species even with the best management.
Although essential, the Special Species Protection is therefore just one part and not the be-all and end-all in the mosaic of the above nature conservation tools, prioritizing the management and protection of the most endangered species. However, the thirty-year-old concept of the Special Species Protection based primarily on the protection of individuals has already been outdated and does not fulfil this function. For a number of years, there have been discussions among the professional/expert public about the necessity of changes in the relevant part of the ANCLO (see e.g. HOŠEK & DUŠEK 2015) and the shortcomings of the existing legislation have been repeatedly identified. The Ministry of the Environment of the Czech Republic (MoE) commissioned an analysis of legal instruments in, inter alia, species protection (TUHÁČEK 2008) and a comparative analysis of legal regulations in nature conservtion in selected European countries and their parts (Bavaria, Upper Austria, Poland, Slovenia, Sweden, Slovakia). The first proposal for the recategorization of Specially Protected Species (hereinafter SPS) was deve-loped in 2008, and the first complete revision of SPS based on the MoE assignment was prepared by the Nature Conservation Agency of the Czech Republic (NCA CR) and discussed with the professional/expert public in 2010 - 2011 (HORODYSKÁ et al. 2011). The evaluation of the Special Species Protection application and the formulation of terms of reference for its revision are included in two basic conceptual documents: National Biodiversity Strategy of the Czech Republic (MACH et al. 2016) and State Nature Conservation and Landscape Protection Programme (SNCLP) 2020-2025 (MACH et al. 2020). Specifically, the SNCLP formulates the main goal as follows: "it is necessary to revise the existing system based on the protection of all individuals and to focus more on the protection of habitats and local populations and to differentiate the protection of individuals according to the degree and way of individual species endangerment".
Shortcomings of current legislation
Special species protection in the current ANCLP setting is not effective. The list of SPS is, on the basis of the authorization established by the ANCLP, listed in the Decree, but it has not been changed, except for partial amendments in 2006, when it had been supplemented with "European" species (modified following the transposition of the requirements for the strict protection of selected species according to Directive 92/43/EEC) and in 2013, when the Great cormorant (Phalacrocorax carbo) was delisted. During the 30 years of its validity, however, there have been significant changes in the occurrence of and abundance in of a number of species and a significant expansion of knowledge; the list is therefore severely outdated (ŠÍMA & ZMEŠKALOVÁ 2018). Although it includes a large number of species, many of them are missing from the list or are classified in the wrong category. As a rule, the permitted exceptions repeatedly concern only a small range of species. The fossilization of the protected species list thus limits not only the legal protection of species that have become threatened with extinction over time, but also the possibilities of the State Nature Conservancy authorities to use active tools for the management of these species (e.g. Action Plans/Recovery Programmes).
The current names of the SPS categories are inappropriate; they do not and cannot reflect the threat to the species. Tools supposed to rationalize the strict protection of species in selected cases have hardly been used (e.g., agreements on management of land with the occurrence of critically and highly endangered plant species; or opinions on certain interventions in the natural development, i.e. ontogenesis, of endangered animal species). The protection of Highly Endangered Species and Critically Endangered Species is formulated identically in the ANCLP, the degree of protection is only used to a limited extent (or, due to the lists being out-of-date, it cannot even be used) when assessing the seriousness of the offence. In the case of many SPS, it is not essential to protect each individual, as it is currently set up, but to preserve the populations and habitats of these species. In the case of many species, current regulation is therefore unnecessarily strict and leads to widespread violations of legal prohibitions in a common landscape use and management, legal uncertainty for landowners and landscape users, as well as to the limitation of some beneficial professional/expert activities, and necessarily to the actual resignation to enforcing the prohibitions provided by law. There is also a proliferation of speculative use of damages for the difficulty of agricultural and forestry management and management of fishponds as a result of legal restrictions. Moreover, in most current cases of granting exemptions, it is not possible to estimate in advance the specific number of individuals that will be affected by the permitted intention, so in fact the decision is made to affect the given local population.
A fundamental shortcoming is the practically unenforceable setting of the SPS habitat protection, where proof of its violation is conditional on proof that a harmful intervention caused the death, injury, or disruption of a SPS natural development (in practice, usually proven by the presence of dead individuals).
The Water caltrop (Trapa natans) can establish large viable populations locally. Among the main causes of threat are degradation or loss of its habitats due to intensive fishpond management. It is not important to protect individuals, but local populations; that is why the species is newly proposed to the 3rd level of protection. © Barbora Čepelová
Principles of the proposed revision
Proposal for a new adjustment, or revision of the Special Species Protection in the Czech Republic is based on the following five main principles, which try to eliminate the fundamental shortcomings of the current legislation:
Introducing new terms
The ANCLP´s draft revision envisages introduction of some new terms or supplementation/modification of existing terminology. Above all, it earmarks protected species of fungi, which until now have been classified as Specially Protected Species of plants. Although it is legislation that may not necessarily reflect biological knowledge, the including fungi among plants has no longer been defensible at present.
The ANCLP´s current wording uses the term "population", but it is not defined for legal purposes and is thus based on the scientific definition of the term. Due to the fact that this definition is very broad and variable, especially when it comes to the determination of spatial, i.e. territorial parameters, it is difficult to use when applying it within legal framework. For the ANCLP purposes, it is therefore newly proposed to define the term "population" and "local population" for a group of individuals of the same species living in the area defined by the boundaries of the continuous habitat of the species at a given site, or confined by the continuous occurrence of a species at a given site. The aim is to differentiate a part of the population/separate subpopulation for the evaluation of prohibitions in Special Species Protection, where the level of the whole population is too broad (with exceptions e.g. endemic species). The level of population will continue to be used in General Species Protection.
The proposal includes supplementation to the definition of the term "habitat", which should now also apply to local population; also, in response to the previous interpretation difficulties, areas necessary for migration and other natural movements of the species are also explicitly marked as part of habitat.
The ANCSP uses the term "regular management"; for revision purposes, it is made more precise by adding some forestry and agricultural activities.
As part of the amendment, with regard to the introduction of new terminology, it will be necessary to amend other ANCLP provisions and other legal regulations including the terminology, for example Act No. 40/2009 Gazette., the Criminal Code.
FAQ
The NCA CR processed the proposal on the basis of the MoE assignment using previous documents in the past six months. There was an effort to involve the science community in the preparation of the initial proposal. Therefore, the proposal was continuously discussed with specialists and scientific societies for individual groups of organisms. Below, we present responses to the most frequently asked questions that could help with overall understanding of the proposal.
The Scare swallowtail (Iphiclides podalirius), an attractive species of diurnal butterfly classified as Endangered in the current decree. It has been currently spreading in the Czech Republic, and that is why it is not newly proposed among the Specially Protected Species. © Václav John
Does the amendment have a chance of being discussed?
The proposal is currently being finalized by NCA CR under the leadership of the MoE in cooperation with specialists and scientific societies. The MoE will then discuss the proposal with regional authorities and other State Nature Conservancy authorities, the Ministry of Agriculture of the Czech Republic, representatives of landscape users, Czech-Moravian Hunting Association, Czech Anglers Union, and other institutions and organizations. After incorporating comments, the official discussion on the ANCLP amendment should begin in 2023, with the assumption that the legislative process will be completed in 2024.
The task of revising Special Species Protection was included among the Czech Government's Programme priorities for its current term and is also included in the Government's legislative plan. Therefore, there is now a great chance to review the species protection, which has been discussed for more than a decade.