Exemptions and Waivers Under Species Protection Laws

Section 39 of the Federal Nature Conservation Act (BNatSchG) generally governs the treatment of wild animals and plants, even if they are not specifically protected. Such animal or plant species and their habitats may not be harmed without a reasonable cause. The following are specifically regulated:

• the commercial collection of,
• the burning or other removal of vegetation
• trimming reeds, hedges, and trees,
• the use of trenching machines
• Visiting bat roosts during the winter months.

The usual, regular trimming of hedges and trees in gardens and parks remains permitted even during the growing season, provided that, for example, bird nests are left undisturbed. Otherwise, specific details should be reviewed and, if necessary, clarified with the nature conservation authority.

Damage to populations of specially or strictly protected species is prohibited under § 44(1) of the Federal Nature Conservation Act (BNatSchG).

This may also apply to renovation or remodeling work on buildings that does not require a building permit; e.g., the removal of nests (e.g., owls, falcons, swifts) or bat roosts, as well as areas where lizards or grasshoppers are found (e.g., sun-drenched dry stone walls or gravel areas).

The following are specifically prohibited:

• Homicide
• Removal from the wild (including relocation)
• Destruction of breeding or resting sites
• Disturbance of species, especially during the breeding season.

In each case, it must be determined whether statutory exemptions apply or whether an exception (Section 45(7) of the Federal Nature Conservation Act (BNatSchG)) or an exemption (Section 67 of the BNatSchG) is required. When authorizing actions, interventions, undertakings, or projects (hereinafter referred to synonymously as “projects”), it is therefore necessary to conduct a preliminary assessment of whether a violation of species protection prohibitions is likely. This generally applies when the construction or operation results in impacts on populations of protected species that lead to a significant increase in the intensity of the impact on nature and the landscape compared to the previous state. Examples:

• Destruction or removal of nests (
  e.g., on building facades or in attics as part of thermal insulation measures)
• Destruction of specific habitat structures (
  e.g., distinctive hollow trees, hedgerows, resting areas, rare special biotopes)

Outdoors, the following factors may also be significant: Attractive or repulsive effects of objects (e.g., light, sound, odors, colors), moving objects (e.g., vehicles, moving parts), or the introduction of structures not typically found in nature (e.g., horizontal guide cables, glass panes).

Furthermore, there should be indications of the presence of such species based on the habitat structure or for other reasons (e.g., animal droppings in or on buildings, remains of nests). The more of these conditions are met, the greater the risk of violating species protection prohibitions within the meaning of Section 44 of the Federal Nature Conservation Act (BNatSchG). Accordingly, these issues must be examined in greater depth.