People and nature

In her everyday work the Chancellor primarily witnesses situations where the relationship between the state and an individual is at cross purposes. One can see confrontation of interests particularly clearly in environmental issues: people do not trust environment officials because officials impose restrictions and sometimes incomprehensible requirements. Officials, in turn, sometimes proceed from the assumption that nature needs to be protected from people and in particular from landowners. Sometimes this may indeed be necessary.

The state must point the direction and create the necessary infrastructure. For instance, in order for everyone to be able to sort waste in their homes and conveniently dispose of the sorted waste. If sorted waste is recycled and new products are manufactured from it, then this motivates people to sort waste. Currently we can see quite a lot of illusory practices in waste management, so the state’s efforts in this field are not convincing. If, instead of changing the method of calculating waste volumes and sorting at the landfill gate, convenient possibilities for sorting waste had been created and plants built for waste recycling, then everyone would understand that sorting waste clearly makes sense and in this way we indeed protect nature. The state and local authorities have much room for improvement in this regard.

The state itself should also fulfil all the requirements imposed by laws and regulations. If we wish to protect bodies of water then a permit for discharge of treated effluent into a lake cannot be issued before it is clear that it would not pollute the lake. If several essential public interests clash, then in this situation, too, the state must make the necessary decisions. The solution is not to waste resources and unsettle people’s nerves while state agencies keep wrangling with each other.

The state should not ward people away from nature but provide guidance on how to operate so that people act as part of nature and as contributors to nature conservation. This also makes it easier for the state to protect nature. If the state wishes semi-natural biotic communities to be maintained by grazing, then is it reasonable to rebuff a landowner who wants to erect a building for overnight stays in an area suitable for grazing. After all, an equivalent alternative would not be to organise a public tender to find a trimmer who once a year cuts taller grass and leaves it simply lying there and covering rare plants. This would be a loss for the owner but in the longer-term also for nature.

It is also strange if the state prohibits a person from clearing a windthrow on their land and using the existing firewood even if the forest owner is prepared to carry the wood out of the forest on their back in order to preserve the soil. Let fallen trees rather rot in the forest... Perhaps from the viewpoint of nature conservation, it might be reasonable to lay down a possibility by law that the owner of an immovable who obtains a permit to build on sensitive land must also comply with specific obligations, such as mowing or grazing, or refraining from a certain type of activity. If the owner fails to comply with the agreement, the building must be demolished.

In forestry, the division between different interest groups sometimes runs so deep that even scientists are considered either as friends or foes and thus unreliable. Things cannot continue like this. In this confrontation everyone will lose in the end but the biggest loser will be the natural environment for whose sake, after all, this row seems to be happening.

It seems that, in order to bring about change, trust needs to be restored. A landowner should not be considered an enemy of nature and an official should not be a repressive body. The landowner and the state must cooperate in order to protect nature. Cooperation on both sides should be sincere and mutual prejudices set aside. The state should listen to the landowner’s wishes and, if possible, proceed from them. If fulfilling a landowner’s wishes is not possible then this should be explained specifically and honestly. An adequate reason and incentive for prohibition cannot be a general fear that if someone is allowed to do something then definitely it should also be allowed for all subsequent applicants. After all, in each subsequent case the circumstances are different and these cases do have to be resolved according to each specific situation.

There is no reason to consider the general public as more important than a landowner even if the general public are noisy and particularly vocal on the social media. General interests have already been taken into account when formulating environmental protection requirements. Naturally, environment officials must also take general interests into account and protect them, but in weighing different and often contradictory interests it is not appropriate to prefer a vocal interest group to a landowner simply because this spares the state or an official from negative coverage in the social media.

Probably the biologist and nature conservation scientist Aveliina Helm was right when she wrote in the newspaper Sirp that “one possible way forward is conscious integration of nature protection in the life and activities of each and every inhabitant – let us call this nature protection for all“. This is what could actually be the state’s future aspiration – protect nature everywhere if possible and together with landowners. This is what many landowners wish in their hearts.

The state should not act overbearingly in deciding how someone may live on their land. The state could be a partner by sharing the owner’s concerns and joys and finding solutions that take landowners’ needs into account. Confrontation does not take us forward and through confrontation it is not possible to involve landowners in environmental protection. It is important to explain convincingly why one or another activity or restriction is necessary. If a person understands that something really depends on their activity then, as a rule they are prepared to make the effort.

I very much hope that even now many environment officials act and think this way. People have no reason to complain against their activities.

Construction

Unjustified requirements

Paperwork involved in construction – plans, proceedings for design specifications, building and use and occupancy notices, and construction and occupancy permits – is often complicated both for applicants as well as agencies processing permits. Often there is a clash between the interests of building applicants, the persons affected and public interests. It is difficult to find a balance between interests, in particular in local authorities with high population density where people actively wish to develop real estate.

In some cases, a city or rural municipality has laid down their own procedure to simplify this work. This may contain requirements with the presumable aim of simplifying dealings and reducing the workload of the city. By laying down such conditions, an applicant may be required to submit an additional document or draw it up in a format suitable for the city. Unfortunately, sometimes the whole process becomes even more complicated as a result. For instance, in Tallinn, construction-related proceedings are exceedingly time-consuming, which is partly caused by (not always justified) formalities imposed by the city. The Chancellor has drawn the attention of the city authorities to this and requested changes in working arrangements.

The city may only request documents corresponding to the purpose of proceedings and the need for them must be justified. General principles of administrative procedure must be observed: proceedings must be fit for purpose, efficient, as simple and swift as possible, and excessive expense and inconvenience for the applicant must be avoided. All procedural steps arranged by the city and all requirements imposed on persons within the proceedings must be lawful, appropriate, necessary and proportionate, and proceed from the purpose. Complying with each requirement takes time and often money as well.

The principle of good administration is breached by raising unjustified requirements and creating expense.

State fee for retroactive legalisation of remodelling

The law stipulates that a state fee of 500 euros is payable for retroactive legalisation of construction works not entered in the Building Register. This exceptional procedure involves cases where a construction work was built illegally, i.e. without a permit.

Although the wording of the law is not precise, the scope of application of exceptional procedures must be interpreted narrowly. Unfortunately, Tallinn has interpreted the law expansively, i.e. also applied these proceedings in the case of any remodelling of construction works entered in the Building Register. This burdens the parties concerned, including by requiring them to pay a high state fee. At the same time, no practical need at all exists for this procedure: the law does not require it nor does it facilitate revision of Building Register data.

In a case described in a petition received by the Chancellor, carrying out proceedings for legalisation of unlawful construction works and payment of a state fee of 500 euros was requested for an air source heat pump installed in a building some time ago. Currently, it would be possible to install such a heat pump on the basis of a building notice, i.e. by following clearly more lenient requirements.

In many buildings erected a long time ago some remodelling has been carried out over time, often in good faith and without knowing that prior authorisation should have been obtained. Moreover, it is very complicated to ascertain retrospectively when and what was remodelled, and how.

The Chancellor drew the attention of the Tallinn mayor to the fact that the procedure for legalisation of illegal construction works and the accompanying punitive state fee of 500 euros must be applied only if construction works were built illegally and if illegality can be proved. The procedure for legalisation of construction works need not be applied to any remodelling work, in particular if under the current rules that particular remodelling work could be undertaken without a building permit.

Connecting to the public sewerage system in Tallinn

In some old settlement districts in Tallinn not all buildings are connected to the public sewerage system.

This is the case even if sewage piping exists in the street and connection would be possible. In that case, connection is reasonable both from the point of view of environmental protection as well as users’ own convenience. This would do away with the need to treat wastewater locally, which in a densely populated area means that wastewater is collected in a leak-proof tank which is then emptied once the tank is full. Emptying is more costly for the consumer than discharging wastewater directly to the public sewerage system.

In Tallinn, an obstacle to connecting to the public sewerage system is its great cost. Even if sewage piping has been laid in the street, not always have supply points (i.e. connection points) been built for buildings along the street. This means that it is necessary to create a supply point before piping on the plot can be built. Where a consumer of the service has to pay for the supply point, the total cost of the works may prove to be markedly high – even if the city partially compensates the connection cost.

Under the law, in old settlement districts the cost of building supply points for the public sewerage system is covered by the water undertaking. This, however, presumes that a supply point has been prescribed in the development plan for the public water supply and sewerage system. In its business plan, a water undertaking relies on this plan: investments set out in the development plan are reflected in the price of the water service, so that all the clients of the water undertaking pay jointly for development of the public sewerage system. Only in new development districts must those wishing to connect to the public water supply or sewerage system themselves pay all the costs related to their connection.

The Chancellor drew the attention of Tallinn City Government to the need to revise the arrangements for connecting to the public sewerage system. Since the development plan for Tallinn public water supply and sewerage system for 2022–2023 is currently under preparation, hopefully in the near future the possibilities for private houses to connect to the public sewerage system will also improve.

Requirements for on-site wastewater treatment

During the reporting year, the Chancellor dealt with on-site wastewater treatment requirements established by local authorities. We asked Vinni rural municipality to amend the municipality’s rules on on-site wastewater treatment so that they comply with the law. The regulation contained several provisions incompatible with the law and which could not have been observed without causing a conflict with the law. Vinni rural municipality abolished the regulation and enacted a new regulation in revised form.

Restrictions on property in a comprehensive plan

The Chancellor was asked to explain how restrictions on property imposed by a comprehensive plan are compensated. The petitioner was a local authority which had to lay down a route for a road in its comprehensive plan in order to comply with state-imposed requirements.

Due to restrictions on property arising from the comprehensive plan, the landowner can no longer unrestrictedly use the land remaining under the route for the road – first and foremost, they cannot erect construction works on that land. At the same time, it is not known when – indeed, whether at all – the road on that land will be built, while use of the property is nevertheless restricted for a long time. If the road is built then the land under the road will be expropriated but until then the owner must tolerate the restriction.

Since the same issue may arise in many similar cases, the Chancellor clarified the possibilities for compensation of damage under current legislation and case-law. A restriction on property – unless it can be treated as expropriation – does not always involve the right to compensation for damage caused by the restriction. Nor must the expense of compensation for damage be borne by the local authority alone if the restriction is imposed proceeding from state interests and the local authority has no possibility to avoid imposing the restriction.

Hunting

During the reporting year, the Chancellor received several complaints about the organisation of hunting. Most of these petitions concerned permits for the rights to use hunting districts, which grant a hunting society the right to hunt in a particular area.

Grant and extension of permits

The current Hunting Act entered into force on 1 June 2013 and lays down that presently valid permits for the right to use hunting districts remain in force for ten years, i.e. to 31 May 2023, and that new permits are to be issued in line with the requirements set out in the law.

The problem arose from the fact that the Environmental Board has already started extending permits for the right to use hunting districts but in doing so has failed to comply with the requirements of the law. For instance, when extending a permit the Board has failed to ascertain whether any other hunting society in Estonia might also be interested in using the particular hunting district. Above all, this endangers fair competition.

It has also been found that different interest groups have interpreted the Hunting Act differently, proceeding primarily from which solution the respective party likes best. Different interpretations have led to conflicts over issuance and extension of permits, which has led to the need for explanation from the Chancellor.

It is clear that from 1 June 2023 permits for hunting districts can be issued under the current Hunting Act and the previously effective law can no longer be relied on. The Chancellor asked the Ministry of the Environment and the Environmental Board in their administrative practice to respect the law.

The executive cannot arbitrarily impose conditions on granting someone the use of limited public resources or overlook the conditions laid down by the Riigikogu.

The right to use a hunting district constitutes a limited public resource. The right of use confers on the user of a hunting district a possibility to hunt game living in that district, whereas a hunting society may also allocate hunting permits for game hunting by proceeding from its economic interests. This means, for example, that without consent of the user of a hunting district and without fulfilling the conditions a landowner who is a hunter cannot hunt large game on their own land. In view of the exclusive rights granted to the user of a hunting district, granting the use of a hunting district must be based on law, be transparent, and predictable for persons interested in use, i.e. the executive cannot act arbitrarily. Otherwise, the principle of legality is not respected, persons are not treated equally, fair competition is endangered, and the rights to self-realisation and protection of property are also restricted.

Upon the expiry of the permits issued on the basis of transition provisions, the Environmental Board must ascertain whether any other hunting society in Estonia is also interested in using the particular hunting district. The law enables hunting societies to agree on the joint right of use of a hunting district. If no agreement is reached, then in line with the wording and spirit of the Hunting Act the Environmental Board must grant a permit to the hunting society which has the strongest support from the landowners in the particular hunting district. In doing so, the assessment by the State Forest Management Centre as the administrator of state hunting areas must be taken into account. The State Forest Management Centre weighs the feasibility of granting the use of its immovables for hunting purposes.

When granting the use of state-owned hunting areas, the rights of the state as the landowner as well as the principles for administration of state assets must be kept in mind – in particular that transactions with immovables owned by the state should comply with legislation, be transparent and verifiable.

One of the aims of the Hunting Act is to improve cooperation between landowners and hunters and encourage them to reach agreement with each other. This is the underlying purpose of the majority of rules in the Hunting Act, such as provisions regulating the use of an immovable, granting the right of use of a hunting district, activities of the hunting council, and prevention and compensation of game damage.

The aim of the law might not be achieved if the working arrangements established by the Environmental Board enable overlooking the requirement of consensus between private landowners and hunters in extending current permits for use of hunting districts.

When the Environmental Board receives an application for extension of a permit issued under the current law, then it must ascertain whether the current user of the hunting district has complied with all the requirements laid down by law.

The Hunting Act states that an application for extension of the permit is to be submitted at the earliest six months before the expiry of the permit. The matter is that in processing an application for extension of the permit the Environmental Board must assess the activities of the user of the hunting district during the whole period of validity of the current permit (i.e. 9 years and 6 months). If the executive begins to examine extension applications on its own initiative significantly earlier (even a couple of years earlier) than the deadline prescribed by law, then the aim set by the Riigikogu will not be fulfilled.

The aims set by the Riigikogu might also not be fulfilled if the Environmental Board extends current permits but fails to verify whether a user has fulfilled the statutory requirements or not. The purpose of extending permits is to continue with those users of hunting districts who operate in compliance with the law and have observed all the statutory duties and objectives. Thus, the Environmental Board must monitor compliance with the statutory requirements under the Hunting Act in the course of state supervision (§ 47 Hunting Act) and, in extending permits, it must also proceed from the investigative principle applicable under administrative procedure. If the state (e.g. the Environmental Board) knows that a hunting society applying for extension of the permit has failed to comply with the monitoring requirement, then the Environmental Board must also take this into account in resolving the application for extension. In line with the investigative principle, the Environmental Board must ascertain all the essential facts when resolving an application.

Of course, only the administrative court can decide on each individual case of extending the right to use a hunting district or refusal to issue a permit for the right to use a hunting district.

Hunting supervision

The Chancellor was asked to assess whether the Environmental Board had acted lawfully when monitoring radio communication between hunters in the course of hunting supervision.

While carrying out hunting supervision, the Environmental Board did not transmit messages through radio frequencies, so that hunters using radio communication did not generally know that officials were listening to their conversations and identified their location based on this. Representatives of the Environmental Board affirmed that their aim is not communication but primarily identifying communication between hunt participants. However, in that case it is not plausible that Environmental Board officials cannot intercept the content of messages transmitted or understand that content.

It is the state’s duty to detect and combat violations of the Hunting Act and the Environmental Board is entitled to carry out supervision for this purpose, but only by using legal measures for this. When exercising state supervision, the Environmental Board may use special measures for state supervision laid down by the Law Enforcement Act (Hunting Act § 47¹), but the special measures set out in the law do not include the possibility of radiopositioning, monitoring radio communications, or otherwise restricting the confidentiality of radio communication. Thus, the Environmental Board has no legal basis to identify the location of hunt participants’ communication devices; moreover, monitoring radio communications may result in violating the confidentiality of messages.

And covert interception of radio communications is not allowed at all: under § 43 of the Constitution, audio interception is allowed only by court authorisation to combat a criminal offence or to ascertain the truth in criminal proceedings.

Under § 43 of the Constitution, everyone has the right to confidentiality of messages sent or received by them through commonly used means of communication, including via radio transmitters (see § 22 on radiocommunication secrecy in the Electronic Communications Act). Confidentiality of messages may only be restricted by court authorisation to combat a criminal offence or to ascertain the truth in criminal proceedings, in the cases and under the procedure laid down by law. Confidentiality of messages protects messages in the broader sense (words, signs, as well as sounds).

When carrying out its tasks, the Environmental Board must comply with the Constitution and laws (§ 3 Constitution) and ensure protection of the fundamental rights and freedoms of individuals (§§ 11 and 14 Constitution). A clear legal basis must exist to restrict fundamental rights.

The Chancellor asked the Environmental Board to stop unlawful monitoring of radio communications between hunt participants, but the Environmental Board did not agree with the recommendation and requested the Prosecutor General’s Office to assess the recommendation.

The Prosecutor General’s Office agreed with the Chancellor’s position that in certain cases the activities of the Environmental Board may amount to illegal surveillance. Similarly to the Chancellor, the Prosecutor General’s Office also recommended that if Environmental Board officials join the radio communication between hunters then they should notify the hunters about it. As an alternative, the Prosecutor General’s Office suggested the possibility to supplement the Law Enforcement Act with a relevant special measure and, under the Environmental Supervision Act, authorise the Environmental Board to apply the particular special measure.

Climate

During the reporting year, for the first time the Chancellor received a petition concerning fulfilment of the climate neutrality objective. The petitioner asked for an assessment of whether Estonia’s current legal space – where duties aimed at achieving climate neutrality are not laid down by law but are instead written into a coalition agreement or development plan – is compatible with the Constitution.

Climate concerns all areas of life and thus everyone. A country’s climate neutrality refers to the status where that country emits just the amount of greenhouse gases that the ecosystem is currently able to absorb. Everyone should contribute to achieving this objective. This alone makes it important that the duties necessary to achieve climate neutrality should be written down so that they are sufficiently clear and comprehensible for everyone. If not, we will be in a situation where everyone acts on their own and no integrated approach exists. While probably not achieving the result in this way, we would undoubtedly be expending a lot in terms of resources.

When resolving the climate petition, the Chancellor met with several parties involved and also discussed concerns related to social justice, entrepreneurship, energy, environmental protection, and several other topics. It became clear that the parties wanted security and a clear frame for action. It is much more complicated to answer the question who should do or restrict what in order to achieve the objective. Even the state does not seem to have an overarching view of this.

Changes related to consumption, transport and energy consumption are inevitable since by continuing in the same way it is not possible to reach a different result. Whether these changes are painful or not depends on the particular individual and their preferences.

When moving towards climate neutrality, some companies and fields must unfortunately also suffer damage, with many companies forced to close down their activities. Probably those disappearing from the market are producers for whose goods there is actually no vital need. This means that climate neutrality will also be unpleasant for many. Yet it would be good if state officials or politicians, in fear of this unpleasant news, would not refrain from discussing painful issues with people. Since climate concerns us all, it is necessary that everyone should be aware of the objective as well as the steps needed to achieve this and the problems inherent therein. Changes as significant as this can only be implemented in society if a social agreement on this – or at least a common and understandable information space – exists.

Climate issues are seen as more relevant by young people who understandably see climate change as part of their lives. Parents also care about their children’s future. Thus, people are prepared to make more effort for the sake of climate neutrality. In the future, the state will need a specific plan as to who should do what. All information about this should be presented clearly, matter-of-factly and without too much emotion, and in a logically reasoned manner.

International cooperation project on climate justice

During the last reporting period, the Chancellor’s Office joined the “Let’s Talk about Climate Justice!” project of the European Network of Ombudspersons for Children (ENOC). Children and young people participating in the project can have a say in debates on issues of the rights of children and young people and climate justice.

Twelve young people from Estonia aged 13– 16 participated in the project. Hanna Gerta Alamets, a member of the Youth Environment Council, explained to young people what climate justice means. Fashion designer Reet Aus showed how she creates and produces new clothes out of textile leftovers from the clothing industry. Young green activist Johanna Maria Tõugu spoke about how young people can act in the name of climate justice. At the Mondo non-profit association, the card game climate school was played together with representative of the youth movement Fridays for Future Eesti. Finally, young people visited the combined heat and power plant of the Utilitas energy group in order to learn about renewables and bioenergy.

Based on these meetings, young people offered their recommendations about the rights of children and young people and climate justice. They emphasised that climate issues should be better reflected in curricula, so that children and young people could better understand climate change and its effect on the future of children and young people and so that they would learn to take responsibility. In the opinion of young people, support should be provided to schools in order to offer more climate-friendly school food (for instance one vegetarian food day organised every week) and less school food would be wasted. Young people also found that, in the name of climate justice, several movements and initiatives need more opportunities for cooperation so as to enable their activities to exert a stronger impact (e.g. a Eurovision of green ideas).

With the help of an instructor, a graffiti and Instagram feed will be prepared. Two young people attended the meeting of ENOC youth counsellors in Bilbao in order to present recommendations by young people in Estonia. By taking into account opinions from young people from several countries, European Ombudspersons for Children prepare proposals for international organisations and decision-makers in their own countries.

Dams

The Chancellor has investigated the possibility of “cohabitation” of cultural resources and nature conservation since as early as 2015 when she submitted to the Riigikogu a proposal on amending the Water Act. The Riigikogu introduced an amendment to the Act that gives the Environmental Board the right and option to consider whether building a fish pass to a dam should be required. If essential cultural values exist at the dam with which a fish pass would be incompatible, then it may be decided not to build it.

For instance, the law allows a derogation in order to preserve a historic watermill and its neighbourhood. Unfortunately, environment officials have not deemed it possible to apply this derogation. Rather, they have chosen the tactics of procedural attrition of persons using the dam. Officials request studies and analyses as well as supplements to and repeated amendment of documents already drawn up. Such practice contravenes the principle of good administration. Parties to proceedings have also repeatedly had to have recourse to the court in order to protect their rights.

During the past seven years, persons involved with several dams and presenting different views have repeatedly written to the Chancellor and expressed dissatisfaction about the state’s activities. Users of dams complain against the state because officials request essentially analyses and documents that should prove that using a dam under current conditions is impossible. Understandably, users of a dam are not willing to pay for drawing up such documents or participate in drawing them up.

Fortunately, under court pressure the state itself has begun to analyse the status of historic dams and also bears the relevant expense. Thus, preconditions exist for the state to obtain the data necessary for decision-making. On the other hand, interest groups and also some officials representing that mentality have found that in the event of a clash between several essential public interests the most important one is environmental protection and the rest should be set aside.

In such a situation a deadlock easily develops. Environmental and cultural resources both need protection and naturally an official usually feels their own field to be closer to their heart. So, it seems to be futile to hope that where an official is faced with several essential public interests – one of which concerns their field of activity and the remainder the activity of some other agency – then a decision is made which equally values all the essential public interests and tries to find a compromise between them. Rather, it tends to be the case that for a conservationist the most important value is nature protection while a heritage protector considers heritage protection to be the overriding goal.

In these situations, too, the state must resolve the situation without significant delay. Under § 49(2) of the Government of the Republic Act, such issues must be submitted to the Government for resolution. It is of course true that the Government might not resolve the issue so that all the agencies concerned obtain complete protection of interests within their area of administration. It may happen that the Government prefers nature to heritage protection, or vice versa. Or that both nature and heritage must somewhat yield to an entirely different public interest. This is inevitable but at least the issue is resolved and life goes on.

Instead of wrangling between agencies, officials can substantively contribute to their field and protect it where no clash exists with other equally essential interests. The approach in resolving deadlocks should be a little wider: in one place there may indeed be fewer fish than expected but, on the other hand, a historic working watermill is preserved. In another place, again, the habitat for fish improved while a concession was made in terms of heritage protection. A result is always better than endless uncertainty.

Waste

Sorting of municipal waste

The Environmental Board decided that landfills must begin sorting municipal waste. This would shift the main responsibility for waste sorting from waste producers, collectors and waste transport operators to landfillers. In the Chancellor’s opinion, there is not much merit in such reorganisation of responsibility. A landfill may indeed begin sorting mixed waste only once it has been transported to its gate but due to the poor quality of the resulting material eventually it will still have to be landfilled.

Problems with new administrative practice

The Chancellor informed the Environmental Board of her opinion that such reorganisation of work and responsibility does not fulfil its objective in the best constitutional manner. That is, Estonia must increase the volume of materials recovered from waste. If Estonia fails to achieve this objective, then – in addition to environmental damage – the state may also be faced with a fine imposed by the European Union.

The Chancellor drew attention to the fact that the 2019 and 2020 nationwide survey on sorting in Estonia and the 2021 National Audit Office report reveal that the poor state of affairs in waste recycling is not news for the state. Despite this, state supervision over the composition of landfilled waste has not improved or is not carried out at all. No effective measures exist to make local authorities comply with their duties and enable people to sort waste at home and conveniently hand it over to the waste transport operator. People’s trust is betrayed and their right to good administration violated if they have made the effort to sort waste and duly paid for waste transport but the sorted waste still gets mixed in the process of transport and, instead of recycling, the material suitable for this ends up in a landfill.

The waste treatment chain is complicated and comprises several interlinked and mutually dependent segments: manufacturers, households (i.e. waster producers), transporters, sorting line operators, landfills, recycling organisations, and others. The activities of each participant in waste handling affect the activities of other handlers. The more households sort waste separately, the less follow-up sorting of waste is needed and the higher the likelihood that recycled materials are of good quality.

For several reasons, imposing additional duties on landfills might not be an appropriate solution for achieving the target numbers under the framework directive and the objectives under the Landfill Directive. One reason is that a landfill is the last chain in waste handling where mistakes made in the previous stages of handling can no longer be remedied. The problem is also that the Environmental Board wants to impose the duty on landfills without a sufficient transition period and in a situation where not enough measures have been taken to improve separate sorting and collection of waste in households.

No convincing impact assessment is available to prove that sorting waste at a landfill directly increases the volume of good-quality recovered material. Therefore, we cannot be certain of the necessity for the measure proposed by the Environmental Board. On that basis, imposing on landfills such a duty of follow-up sorting of waste might not be proportionate.

As long as no effective measures exist to improve separate collection of waste in households, narrowly imposing an additional burden on landfills breaches the principle of waste hierarchy. In line with this principle, all parties concerned must make the effort for the sake of waste reduction, recovery of existing waste and nature protection.

What next?

The Environmental Board reacted to the Chancellor’s observations by granting a transition period to landfills. Landfills maintain environmental permits related to the requirement of follow-up sorting while the conditions of these requirements will be relaxed. The Environmental Board has also promised to refrain from fining landfills if they implement measures to bring their activities into compliance with the new requirements.

Since the relaxation offered by the Environmental Board is not based on an administrative or legislative act, the risk of the unforeseen remains.

As we know, Estonia lacks an economic plan and a legal framework to force local authorities to take better care of waste sorting and waste disposal. However, creating that plan and framework fall within the remit and tasks of the state. Attention to the problem was also drawn by the World Bank, which, at the request of the European Commission, analysed waste management in Estonia.

Protection of small lakes

The first impression may be that norms laid down by the European Union and Estonia ensure comprehensive protection of water bodies. So, it may be an unexpected revelation that small water bodies are unprotected against certain types of pollution and that certain pollutants may be discharged into water for which no limit values have been established.

Legal terminology related to water is complicated. Unfortunately, in the following paragraphs of the report we cannot completely avoid these terms since they are also used in the Water Act.

If a lake has not been included in a body of surface water then more relaxed rules apply to it than to lakes included in a body of surface water. Inclusion in a body of surface water means that the status of a water body is constantly monitored under the European Union framework directive and the status of the water body may not deteriorate.

Most water bodies in Estonia are not constantly monitored. Nor is the status of water bodies regularly monitored by the Environmental Board, so that no complete overview is available as to how clean or polluted are small lakes, including those where people like to go swimming.

In the case of Vana-Koiola lake, all these problems were clearly revealed. Some families live on the banks of this lake and the municipal care home is also there. Treated effluent from the care home is discharged into the lake but the lake is used by local people for swimming. Since the status of the lake has visibly deteriorated, a local resident asked the Chancellor to investigate whether discharging the care home’s treated effluent into such a small lake is legal.

The investigation revealed that no one has any overview of the status of the lake. The state has granted a permit to the care home to discharge water into the lake but had completely failed to ascertain before doing so whether the lake’s status would actually withstand such pollution. Since the volume of treated effluent is small, then in such cases the permit does not need to establish limit values for total phosphorus and total nitrogen content in the effluent. Both substances contribute to a water body’s overgrowth.

Vana-Koiola lake is not included in a body of surface water. Under § 32(1) of the Water Act, the good state of those water bodies not included in a body of surface water must also be maintained.

The status of water bodies not included in bodies of surface water is good if the quality standards established under § 76(1) of the Water Act are not exceeded in water samples, and if the water body complies with the values of quality indicators established under § 61(4) of the Act. Thus, studies have to be carried out on compliance with the criteria.

In the course of operational monitoring by the Environmental Board, samples from the lake were taken on 28 September 2017 and 16 June 2021. Monitoring of the recipient water body was carried out in 2017 after issue of a permit for special use of water, so that its results could no longer affect the decision on issue of the permit. The results show that the status of the lake in 2021 was moderate (pH 7.9 and total nitrogen 0.71 mg/l). The indicator for total phosphorus 0.046 mg/l even refers to the poor status of water. Comparison of the results of the 2021 monitoring with the single monitoring carried out in 2017 reveals that even in 2017 the indicator for total nitrogen was 0.79 mg/l, i.e. the status of the lake was moderate. The indicator for total phosphorus was somewhat better in 2017. At that time, the indicator for total phosphorus 0.032 mg/l also corresponded to the status class “moderate”, which is better by one quality class than in 2021.

Thus, during recent years the total phosphorus in the lake water has increased. Naturally, taking occasional samples is not enough to assess the overall status of the lake. However, based on the data collected, it could be seen that prior to issuing the water permit the state had failed to ascertain the status of the lake, and discharge of treated effluent to the lake has definitely not improved the status of the lake over the years.

A closer look at the results of analysis of the samples reveals that on several occasions the total phosphorus was high or very high (especially 2017–2019) and this was so even when other indicators complied with the requirements of the permit. Since no limit value has been set in the environmental permit for total phosphorus, the activities of the user of the treatment plant formally look as if meeting all the requirements. Despite this, the indicators for total phosphorus cited are still high. It is also significant that, based on the study carried out in 2021, the content of total nitrogen and total phosphorus in the lake indicates moderate or poor status for Vana-Koiola lake. Thus, one cannot ignore the concentration of pollutants not regulated by the permit in the treated effluent discharged into the lake.

The Chancellor asked Põlva rural municipality and the Environmental Board to cooperate and arrange the necessary studies to be able to assess the status of the water body and the reasons for deterioration of status. The Environmental Board needs data about the status of the lake in order to decide on the need to amend the environmental permit. More broadly, both Põlva rural municipality and the Environmental Board should be interested in the state and the public having relevant information about the status of the lake and in taking all necessary measures to improve the status of the lake.

In summer 2022, it was known that Põlva rural municipality will commission an expert assessment to ascertain the status of the lake, and the Environmental Board has kept an eye on the functioning of the care home’s treatment plant during the last year. Based on available information, samples taken during this period complied with the requirements.