Purely on the merits, the Bund Naturschutz was obviously right. The environmentalists and their experts had warned of the water ingress if the Free State would drive the bypass tunnel around Garmisch-Partenkirchen in the direction of the Fernpass on exactly this route through the Kramer. In 2009, the BN lost a lawsuit against the planning before the Bavarian Administrative Court (VGH) – and in 2013 work on the exploratory tunnel had to be stopped because water got in.
But the Free State had its planning re-approved by the government of Upper Bavaria, now with the addition of a technically complex lowering of the groundwater in the Kramer massif plus artificial irrigation of the protected hillside spring moors. Nevertheless, the moors have partially dried up, springs have dried up, the narrow whorl snail is looking into the tube. On Tuesday, the BN tried to get a legal right. He and the Free State met again before the VGH to clarify whether this environmental damage needs to be eliminated and whether further damage needs to be prevented.
Because work on the country’s longest road tunnel was resumed in 2020, a year ago the responsible road construction authority in Weilheim was able to report the breakthrough in the 3.6-kilometer-long main tube, and in April also in the exploratory tunnel, which is to serve as a rescue tunnel from the planned completion in 2024 . Anyone who has seen the work for themselves could see and hear all the pumps in the tunnel that pump the water out of the mountain. In addition, deep drainage wells were driven into the rock from above.
Exactly what happened to the Kramer as a result of these measures, what damage was actually caused and what of it can be limited or ever compensated for, the Administrative Court of Justice has declared to be practically irrelevant at the moment. According to the relevant environmental damage law, it can only be a question of whether the Free State has to draw up a remediation plan, but not how this should look in detail.
In any case, the prosecutors of the Free State vehemently defended the view that the law was not applicable at all because there was a valid plan amendment decision from 2017 and the required restructuring concept was already contained in its provisions. From the point of view of the BN, the measures from that resolution were not applied at all, for example injecting concrete into rock crevices to seal them and keep the water in the mountain.
However, according to an external planner working for the Free State, that would hardly have promised success and would not do so now because the 600-meter-long mountain range is generally too permeable. “That’s not elderberry juice that you’re pumping into the mountain,” warned the engineer. Rather, you have to “apply the entire range of technical construction chemicals”. Drilling holes in the finished concrete shell of the tunnel for all these injections will probably cost more than 100 million euros – without any certainty that this will lead to any success at all. “It’s about a huge amount of money, you have to be aware of that,” emphasized the Free State’s attorney.
The BN did not go to court against the approval including the lowering of the groundwater level in 2017 because, given his previous experiences with the responsible Eighth Senate of the VGH, he had seen no prospects of success. This senate had already rejected a BN demand for the application of the Environmental Damage Act 2015. In the meantime, however, not only has there been a different judgment at European level in a comparable matter, but the composition of the Senate and its legal opinion have also changed. After the decision of the old Senate, the authorities practically “dropped the pen” on the subject of environmental damage compensation, said the chairwoman of the current Senate on Tuesday. “We cannot support this decision from 2015, in various respects. You can see that court decisions can really do something.”
The Senate has yet to formally announce its own decision. But he left no doubt that he would insist on a restructuring concept. What this concept will look like in terms of content is initially the task of the responsible authorities, above all the road construction department and the government of Upper Bavaria. The BN has the right to be heard as a nature conservation association – and then, if necessary, to turn to a court again. The construction of the Kramer Tunnel, which is part of a chain of tunnels in the Loisach Valley costing more than 1.3 billion euros, is continuing anyway.