A widely debated issue
As known to those in the sector, the ban on the use of ammunition containing lead it is perhaps one of the greatest suns given to us by the European Community, equal to the stupidity of the electric car in order not to pollute, but now we have to put up with it. Surely it was one of the smartest inventions in the anti-hunting world to give us a good blow. Beyond the questions about the legitimacy or otherwise of the reasons for the ban and the possible alternatives to lead, now the real and urgent problem is that we poor hunters still don't know for sure where, in Italy, we risk being fined and where not. Clarity alone today would be a godsend. Today, September 4, the National AAVVs will have a meeting at the Ministry, requested for months, and in the meantime, a Eupilot request for explanations to Italy has arrived on July 27: the European Commission disputes that the Ministerial Circular on the ban on the use of lead , as explained by a vademecum distributed by many hunters, contrasts with the European Regulation which introduced the prohibition of the use of lead in all wetlands of the Member States, and not only in the most valuable areas (Ramsar, Natura 2000, Oasi di tutela ). Confident (in the Father Almighty) that the meeting of 4 September will be a harbinger of clarity (but at best it will take days), the National Hunting Associations have called for the utmost caution, urging hunters to avoid carrying ammunition containing lead in proximity (100 meters) from any water basin of any nature and size, at least until there is a clear zoning or indications and above all CERTAIN MEASURES by the Regions. They also invited you to contact your gunsmith if you have any doubts about the usability of steel shot ammunition in the barrels of your shotguns (actually many shotguns built in the last 20 years often have suitable barrels, even if not approved).
What the law says
Excessive caution in the face of the Ministerial Circular which seems to limit the ban to a small number of wetlands? Unfortunately not, if we read the EU Regulation, the Ramsar Convention and the EUPILOT Request, and remember that ministerial circulars do not have the force of law (while the European Regulation does, and it does not even have to be formally implemented as is the case for Directives). The fundamental premise is therefore this: 1) the Regulation is self-executing and the Italian Judges are required to apply it as it is written, as if it were a State Law; 2) ministerial circulars have no legal force (and the Judges can deviate from them if they do not agree with them, even when they interpret Laws promulgated by the Italian Parliament).
And what does the Regulation say?
“11.After 15 February 2023, the following activities are prohibited within or within 100 meters of wetlands: a) firing ammunition containing a concentration of lead (expressed in metal) equal to or greater than 1% by weight; b) carry ammunition of this type with you when shooting in wetlands, going to shooting in wetlands or returning after shooting.2
...
13. For the purposes of paragraphs 11 and 12, the following definitions apply:
(a) "wetlands" means areas of marshes, marshes and peat bogs or expanses of natural or artificial water, permanent or temporary, in which the water is standing or flowing, fresh, brackish or salty, including expanses of sea water whose depth does not exceed six meters at low tide;
(b) "ammunition" means pellets used in a single shot charge or cartridge, or for which such use is intended;
(c) "shotgun" means a smooth-bore non-air weapon; d) «carrying out shooting activities», firing shots with a hunting rifle;
e) "carry with you", have on or with you or transport by other means;
f) in order to establish whether a person found with ammunition carries such ammunition with him "in the context of carrying out shooting activities": i) all the circumstances of the case must be taken into account;
ii) the person found with the ammunition need not necessarily be the same person carrying out the shooting activity.”
In the considerations (particularly in n° 24) which introduce the regulation, we read that the definition of "wetland" used is that of the Ramsar Convention, neither more nor less, because it is considered the most general possible, the one which includes every possible area humid.
Article 1 of the Ramsar Convention in fact gives the general definition of wetland (the one written above), and in article 2 it indicates which wetlands, due to particular characteristics, must be indicated as "wetlands of international importance": these “wetlands of international importance” are the “Ramsar Areas”. But the definition of article 1 is the one needed to identify ALL WETLANDS, even those without particular environmental or faunal merits.
Zones and opinions
So it is undisputed that there are areas that are wetlands to all intents and purposes, but which are not designated as "Ramsar Areas" (in Italy the Ramsar Areas are equal to approximately 74.000 hectares, or 740 square km: a real trifle). Furthermore, ECHA's preparatory opinions state that limiting the ban on lead only to wetlands designated as Ramsar or the Natura 2000 network would be of little use, given the great distances traveled by migratory birds: the purpose of the regulation is to ban lead in all wetlands through which aquatic birds can pass or nest (which fortunately for us do not pass and do not nest only in the Ramsar areas or SPAs or oases…). That the wetlands for the purpose of banning the use of lead are not only the areas classified Ramsar or the wetlands included in the Natura 2000 network, the Commission says in no uncertain terms in the Eupilot request 2023/10542 (arrived in July 2023) in which unfortunately reminds you that:
“… Regulation 2021/57 follows the comprehensive definition of “wetland” used by the Ramsar Convention, which includes all types of wetlands, temporary or permanent, irrespective of their designation or location in a Ramsar area (Wetlands of International Importance), a Natura 2000 site, a nature reserve or a protected oasis. The definition of “wetlands” in the Regulation includes in particular areas that are partially or totally dry at certain times of the year”.
The Commission then writes that the Ministerial circular would be in conflict with the European Regulation both in that it limits wetlands only to wetlands classified as Ramsar, Natura 2000 or protected oases, and because it would exclude "temporary" wetlands, which could be for example the open floodplains of lowland rivers, or the fluvial oxbow lakes linked to the water level in the river bed. Given that a puddle left by the rain, or even flooding following severe storms, certainly cannot be considered a "wet area", unequivocal clarifications are urgently needed by the Government to be transfused into certain and binding legislative measures: not only for hunters, but also for surveillance and the Courts.
Can a stream be considered a wetland?
Is a stream, perhaps a mountain stream, a "water" within the meaning of the Ramsar Convention definition of a wetland?
Is a rice field designed to be flooded for a few months a year, year after year, a wetland? But if I sow corn, wheat or soybeans one year, is it still a wetland?
Are the fixed ambushes for ducks made with artificial flooding limited to the hunting season "wetlands"?
Is an irrigation channel (perhaps used once a week and then left dry) or a service channel for hydroelectric stations, perhaps with an artificial concrete bed and banks, a wetland?
Is a swimming pool a wet area? It is clearly an expanse of fresh, artificial, stable, stagnant water!
And an artificial lake for sport fishing?
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It is true that the Ramsar Convention also refers to artificial expanses of water, but we could agree that an artificial lake created by closing a depression with bulkheads or dams can give birth to a "wetland", but not that a concrete canal is either or a cemented water collection basin…
The role of the Government
Perhaps the Government could give some clear indications identifying as wetlands those that create the wetland habitat, perhaps indicating certain characteristics typical of river and lake areas, so as to clearly exclude, for example, minor catchment basins and certain infrastructures which certainly they do not create a habitat that can be defined as a "wetland" as anyone would understand it, or a habitat with typical and specific characteristics for which a trickle or stream is not enough to create a "wetland".
And the unambiguous (and legislative) clarification also serves in relation to the sanctions applicable to those who violate the Regulation. Indeed, the sanctioning aspect is left to the Member States and, without a specific sanction, the Courts could try to apply sanctions relating to the use of prohibited means or to pollution phenomena.
The only reasonable solution, in the opinion of the undersigned, given the fact that the prohibition concerns not only the use, but also the simple introduction of cartridges into a wetland if one goes hunting (yes, keeping cartridges in one's pocket triggers the sanction), would be to introduce a specific prohibition and a specific administrative sanction in 157/92 for the possession (and use) of such ammunition, in order to comply with the regulation and not necessarily incur criminal consequences for hunters. It would be a very simple modification of articles 21 and 31 of law 157/92, which given the urgency, also with respect to the Eupilot procedure, in progress, could be adopted even before the opening with an immediately executive Decree Law.
Today however, in the midst of uncertainty, article 30 letter h) of 157/92 on the use of prohibited (the ban on the use of the relative ammunition is not contemplated in 157/92, to whose violations the sanctions set forth in it apply, and not to others; and one thing is the use, another is the mere possession - even by unarmed escorts! – which would be equated to usage), but someone could also think of trying to contest much more serious violations in relation to possible environmental damage.
Control room
In this context, the invitation to the utmost caution launched by the Control Room (but, please, do not tread lightly into wetlands) is the most reasonable, appropriate and correct way to protect hunters from criminal prosecution. hoping that the Government and the Regions (as far as they are concerned) will instead be able to limit the effects of the European Regulation as much as possible, obviously respecting it. Perhaps even convincing the Commission that in Italy limiting the prohibition to Ramsar, Natura 2000 and protection Oasis areas such as wetlands of greater environmental and faunal value is sufficient to make the European Regulation considered respected and applied).
However, today the Regulation already applies as it is written, and the end of the Community procedure is not expected. And, I repeat, the Circular is not binding in the courtrooms.
In any case, for those who feel sufficiently guaranteed and consider that of the Hunting Associations of the Control Room to be useless alarmism, there will always be the possibility of facing a trial, perhaps victoriously, but at a high price. (Attorney Lorenzo Bertacchi – President of Federcaccia Lombardia)
