Austria: Burgenland expands wind power suitability zones

1.1        Three new zones

The amendment replaces the existing Annex 1 of the regulation in its entirety and extends the territorial scope to cover 11 municipalities. Three new wind power suitability zones have been added to the nine existing ones:

• Nikitsch/Großwarasdorf II[1]
• Nikitsch/Großwarasdorf/Frankenau-Unterpullendorf[2]
• Mannersdorf/Frankenau-Unterpullendorf[3]

In addition to the suitability zones, Annex 1 also designates exclusion zones in which the construction of wind power plants is prohibited under all circumstances. The specific delineation of these zones in the zoning maps is therefore decisive when assessing sites.

1.2        Zoning and spatial planning law

Within suitability zones, the construction of wind power plants is generally permissible under spatial planning law, whereas it is prohibited within exclusion zones.

The suitability and exclusion zones prescribed by the provincial government are supra-local zoning designations and merely need to be indicated in the local land-use plans. A constitutive zoning decision by the municipality in which the site is located is therefore not required.

1.3        Implications for permit proceedings

Annex 1 sets out the "criteria for the construction of wind power plants". The legal basis for this is Section 22f(5) of the Burgenland Spatial Planning Act (Bgld RPG), which empowers the regulatory authority to establish requirements for suitability zones, taking into account actual land use and spatial planning objectives.

Some of these requirements are already drafted with sufficient specificity to be directly applicable in turbine selection and project design, in particular the maximum values for blade tip height and rotor diameter, as well as certain set-back and conservation requirements. Others contain express mandates for further specification in the subsequent permit proceedings and must be transposed there either as project-inherent measures or as sufficiently specific permit conditions.

In the already existing zones, the measures remain largely unchanged. New for all 12 zones is the requirement to consult the Federal Ministry of Defence (Bundesministerium für Landesverteidigung) in the subsequent permit proceedings to assess potential interference with military installations.[4]

For the new zones, entirely new packages of measures have been established. The following are particularly noteworthy, although not all measures apply identically to all three new zones:

• Dynamic buffer corridors between certain zones
• Long-term bird monitoring: New compared to the previous set of measures is an explicit Before-After-Control-Impact study based on surveys conducted between 2022 and 2025, comprising two field seasons before construction and two after construction, as well as an additional two-year monitoring phase ten years after completion.
• Detailed felling and roost protection regime: For the first time, the regulation specifies in detail the felling period, environmental construction supervision, endoscopic inspections, one-way closures, avoidance of uncontrolled tree falls, post-felling inspections, the rescue of any bats found, and the relocation of trunk sections containing potential roosts.
• Quantified 3:1 compensation: Specific replacement ratios of 3:1 are established for non-relocatable roosts, affected hedgerow structures and degraded potential roost trees, along with spatial requirements regarding the location of compensatory measures.
• Documentation obligation for bat curtailment algorithms: ProBat-based curtailment regimes with a threshold of less than one killed individual per turbine per year already existed in zones 7 to 9. New is the express obligation to submit curtailment times annually, proactively and in a format that allows for straightforward regulatory review.
• Bat carcass monitoring: Carcass searches were already required in all existing zones, albeit as effectiveness controls at turbines equipped with nacelle or tower monitoring and generally for two years following commissioning. New is the more general obligation to conduct carcass monitoring in accordance with the current state of the art. This obligation may be waived if scientifically substantiated regional evaluations of bat activity or bat fatality rates for eastern Austria are available. The Annex leaves open when this condition is met and which authority is responsible for assessing it against what quality standards.
• Watercourse-related construction restrictions and ecological enhancements: New are buffer strips along certain streams as well as specific ecological enhancements through stream widening and the creation of once- or twice-mown wet meadows.
• Species- and habitat-specific permanent measures: Reserved exclusively for Mannersdorf/Frankenau-Unterpullendorf are, in particular, the permanent protection of identified Leisler's bat roost trees, including a 50-metre radius, the preservation of old-growth tree stands throughout the operational lifetime, and a specific activity monitoring programme with potential habitat improvements for Geoffroy's bat.
• Demand-based night marking (pursuant to Section 123a Aviation Act) subject to legal permissibility and technical feasibility.

2            Commentary

Of particular concern are blanket requirements that mandate a specific measure regardless of the actual turbine layout, site characteristics, collision risk and protection concept already envisaged for the project, even though the suitability, necessity and appropriate scope of such measures can only be assessed on a project-specific basis. While the regulatory authority is entitled to set zone-specific implementation criteria, the regulation should not pre-empt the assessment required in permit proceedings as to whether a measure is suitable, necessary and proportionate for the specific project or whether a less burdensome, equally effective alternative is available.

This tension is particularly evident in the case of bat carcass monitoring:

• Annex 1 imposes this requirement for all three new zones in the abstract, without specifying the number and selection of turbines to be monitored, duration, search intervals or search areas.
• A waiver is only foreseen where scientifically substantiated regional evaluations of bat activity or bat fatality rates for eastern Austria are available.
• The obligation does not appear to depend on a project-specific elevated collision risk, particular habitat structures, the informative value of nacelle monitoring or whether a curtailment algorithm already in place adequately achieves the conservation objective.
• The practical and scientific reliability of the method must also be assessed on a case-by-case basis. Vegetation, agricultural use, searcher efficiency, scavengers and carcass drift all affect the number of casualties that can be found. Moreover, carcass finds are not a direct input parameter of the ProBat algorithm.

It therefore remains unclear how the results of carcass monitoring are intended to inform any adjustments to the curtailment algorithm. This also raises the question of whether the expected additional informational gain justifies the cost compared with quality-assured nacelle monitoring combined with an adaptive curtailment algorithm.

3            Key takeaways