Habitats Regulations Appraisal

  1. Where a plan or project is likely to have a significant effect on a European site, regardless of whether the project location is within or beyond the 12 nm boundary, there is a requirement, under the Habitats Regulations for the competent authority (Marine Scotland) to carry out an appropriate assessment. The Habitats Regulations require sufficient information to be provided the competent authority to enable it to assess whether there are likely to be any significant effects, and to carry out the appropriate assessment (and any subsequent stages of the HRA), where necessary, as part of an HRA. This information and the legislative and policy background to the assessment is provided by the Applicant in the Berwick Bank Wind Farm Report to Inform Appropriate Assessment (RIAA) which accompanies this Offshore EIA Report and has not been re-iterated here. There is overlap between the information presented to support the baseline in the Offshore EIA Report and the HRA, and between some of the assessments undertaken although the appropriate thresholds and benchmarks (tests) are applied appropriately and independently to each assessment. The main international and national policy and legislation that form the framework for the consideration of nature conservation designations in relation to the Proposed Development are set out in the relevant topic chapters (volume 2, chapters 7 – 21).

2.4.2.    European Protected Species Licence

  1. EPS are animals and plants (species listed in Annex IV of the Habitats Directive and referred to in the schedules of the Habitats Regulations) that are afforded protection under the Habitats Regulations. All cetacean species (whales, dolphins and porpoise) are EPSs. If any activity is likely to cause disturbance or injury to an EPS, a licence is required to undertake the activity legally.
  2. Activities which can be licenced under EPS licences include those such as subsea noise disturbance to marine mammals due to piling construction activities. EPS licences are obtained from NatureScot or the Scottish Ministers, depending on the reason for the licence application. The grant of such a licence is separate to the main Section 36 and Marine Licence application process.

2.4.3.    Energy Act 2004

Safety Zones

  1. Safety zones are intended to ensure the safety of the renewable energy installation or other installations in the vicinity during construction, operation, extension or decommissioning. They may exclude non-project vessels from navigating through a designated area for a designated period.
  2. The safety zone scheme, as set out in the Energy Act 2004 and the Electricity (Offshore Generating Stations) (Safety Zones) (Applications Procedures and Control of Access) Regulations 2007 applies to territorial waters (within 12 nm) in Scotland and to waters in the UK REZ. This scheme applies to all Offshore Renewable Energy Installations (OREIs) but not to offshore export cables or inter-array cables (DECC, 2011).
  3. The Scotland Act 2016 amends the Energy Act 2004, transferring functions to Scottish Ministers in relation to the declaration of safety zones around offshore renewable energy developments in Scottish offshore waters.
  4. Further information on safety zones can be found in volume 1, chapter 3 and in volume 2, chapter 13.

Decommissioning

  1. Sections 105 to 114 of the Energy Act 2004 (as amended by the Energy Act 2008 and the Scotland Act 2016) (hereafter referred to as the Energy Act) contain statutory requirements in relation to the decommissioning of OREIs and their related electricity lines. Under the terms of the Energy Act, Scottish Ministers may require a person who is responsible for these installations or lines in Scottish waters or in a Scottish part of a REZ to prepare (and carry out) a costed decommissioning programme for submission to and approval by Scottish Ministers (Scottish Government, 2019b).
  2. The responsibilities and powers associated with decommissioning for OREI within Scottish Waters transferred from the Secretary of State to Scottish Ministers in April 2017. Up to this point, the Department for Business, Energy and Industrial Strategy (BEIS) was responsible for requiring decommissioning programmes and securities for OREI (Scottish Government, 2019b). As part of this change in responsibilities, Marine Scotland are seeking to establish robust policies and procedures covering decommissioning, including securities, for offshore wind, wave and tidal projects. A consultation on future plans for decommissioning for OREIs in Scottish waters ended in March 2020. Following this consultation, guidance will be finalised and made available to industry.
  3. The draft Offshore Renewable energy decommissioning guidance (Section 5 – Submission, approval and review of decommissioning programmes) states that “an indication of the decommissioning proposals should be included as part of the statutory consenting or licensing process so that the feasibility of removing the infrastructure can be assessed as part of the application process”. Furthermore, it states that it should be possible to provide a detailed description of the items to be decommissioned prior to construction, and that the decommissioning programme should be informed by the EIA Report with a final draft submitted to the Scottish Ministers no later than six months prior to construction (Scottish Government, 2019b).
  1. Scottish Ministers also have the power to determine specific approaches to decommissioning, including stipulating what form, timing and size of financial securities are required. The expected content of a decommissioning programme includes:
  • decommissioning standards;
  • financial security;
  • residual liability; and
  • industry cooperation and collaboration.
    1. The scope of decommissioning requirements in Scotland is between the MLWS mark and the seaward limits of the territorial waters, including coastal water and the Scottish part of the REZ. The Energy Act does not cover the intertidal zone, however decommissioning of infrastructure within the intertidal zone should be carried out under any conditions attached to a Marine Licence (under the Marine Scotland Act 2010).

2.4.4.    Marine Strategy Framework Directive

  1. The Marine Strategy Framework Directive (MSFD) requires Member States to prepare national strategies to manage their seas to achieve Good Environmental Status (GES) by 2020. The Directive came into force on 15 July 2008 and was transposed into UK law by the Marine Strategy Regulations in 2010. The UK’s approach and targets for achieving GES were outlined subsequently in a ‘UK programme of measures’ (Defra, 2015). The approach ensures that all developments comply with the regulatory regime, and that regulatory assessments take full consideration of any potential impacts that may compromise GES. This is currently implemented in the UK through the Marine Strategy Regulations SI 2010/1627. There is currently no EU exit amendment to these regulations.

2.4.5.    Water Framework Directive Regulations

  1. In the UK, coastal waters are protected under the Water Framework Directive (WFD) which requires that “the project or activity does not cause or contribute to deterioration in water body status or jeopardise the water body achieving good status” (UK Government, 2014).
  2. The EC WFD has become law in Scotland as the Water Environment and Water Services (Scotland) Act 2003. Relevant to the Project, this legislation covers certain activities in coastal waters (3 nm from the limit of the highest tide) (SEPA, 2021).

2.4.6.    Marine Protected Area Regulations

  1. The Marine (Scotland) Act 2010 and the MCAA 2009 introduced provisions to support the management of Nature Conservation (NC) Marine Protected Areas (MPAs). Under section 126 of the MCAA 2009 and section 83 of the Marine (Scotland) Act 2010, MS-LOT, as the public authority, is required to consider whether an activity is capable of affecting (other than insignificantly) a protected feature in a NC MPA or any ecological or geomorphological process on which the conservation of any protected feature in a NC MPA is dependant.
  2. MS-LOT must not grant authorisation for the activity unless the person applying for the authorisation satisfies MS-LOT that either (a) there is no significant risk of the activity hindering the achievement of the conservation objectives for the NC MPA; or (b) there is no other means of proceeding with the activity which would create a substantially lower risk of hindering the achievement of those objectives, that the benefit of the public of proceeding with the act clearly outweighs the risk of damage to the environment that will be created by proceeding with it and that the person will undertake measures of equivalent environmental benefit to the damage which the act will or is likely to have on the NC MPA concerned. If MS-LOT believe that there is or may be a significant risk of the proposal hindering the achievement of the conservation objectives, then they must notify the appropriate statutory conservation bodies (NatureScot for MPAs within 12 nm or the Joint Nature Conservation Committee (JNCC) for MPAs out with 12 nm) of that fact.
  3. Further information on how the Applicant has assessed potential impacts on the MPAs in the vicinity of the Proposed Development is included in volume 2, chapters 8, 9 and 11 and the MPA Assessment Report (SSER, 2022b).

2.4.7.    Pre-Application Consultation

  1. Where activity is planned within the Scottish Territorial Waters, the Marine Licensing (Pre-application Consultation) (Scotland) Regulations 2013 (hereafter referred to as the PAC Regulations) apply. There is no provision for PAC in the MCAA 2009, so these requirements do not apply in respect of relevant applications in the Scottish Offshore Region. There are no statutory requirements for consultation during the pre-application stage for Section 36 consent applications, however the principles of the PAC Regulations will be followed for all offshore components of the Proposed Development (below MHWS). The stakeholder engagement and public consultation carried out in relation to the Proposed Development is detailed in volume 1, chapter 5.

2.5. References

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HM Government (2014). Guidance. Marine Licensing: impact assessments. Available at: Marine Licensing: impact assessments - GOV.UK (www.gov.uk). Accessed on: 14 October 2021.

HM Government (2017). The Clean Growth Strategy. Leading the way to a low carbon future. Available at: Clean Growth Strategy (publishing.service.gov.uk). Accessed on: 11 January 2022.

HM Government (2018). The Future Relationships Between the United Kingdom and the European Union. Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/786626/The_Future_Relationship_between_the_United_Kingdom_and_the_European_Union_120319.pdf. Accessed on: 29 October 2020.

HM Government (2019). Industry Strategy. Offshore Wind Sector Deal. Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/790950/BEIS_Offshore_Wind_Single_Pages_web_optimised.pdf. Accessed on: 2 November 2020.

HM Government (2020a). Offshore wind Sector Deal – one year on. Available at: https://www.gov.uk/government/publications/offshore-wind-sector-deal/offshore-wind-sector-deal-one-year-on. Accessed on: 13 November 2020.

HM Government (2020b). 2018 UK greenhouse gas emissions: final figures – statistical summary. Available at: https://www.gov.uk/government/statistics/final-uk-greenhouse-gas-emissions-national-statistics-1990-to-2018. Accessed on: 13 November 2020.

HM Government (2020c). United Kingdom of Great Britain and Norther Ireland’s Nationally Determined Contribution. Available at: The United Kingdom's Nationally Determined Contributions (publishing.service.gov.uk). Accessed on: 11 January 2022.

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[1] Four level options have been shortlisted as part of the sixth carbon budget advice to government. Included in the table is the looser budget option (in line with CCC’s ‘headwind’ scenario) and a tighter budget option (in line with CCC’s ‘widespread innovation’ scenario).

[2] Similar arrangements are provided for in the Town and Country Planning and Electricity Works (EU Exit) (Scotland) (Miscellaneous Amendments) Regulations 2019 in respect of the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017 and the Environment, Food and Rural Affairs (Environmental Impact Assessment) (Amendment) (EU Exit) Regulations 2019 in respect of the Marine Works (Environmental Impact Assessment) Regulations 2007

[3] Similar provisions are set out at Regulations 4 and 5 of the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017 and Regulations 4 and 12 of the Marine Works (Environmental Impact Assessment) Regulations 2007

[4] Similar provisions are set out in Schedule 4 of the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017 and Schedule 3 of the Marine Works (Environmental Impact Assessment) Regulations 2007

[5] Regulation 4 of the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017 and Regulation 5 of the Marine Works (Environmental Impact Assessment) (Scotland) Regulations 2017

[6] Similar provisions are set out in Schedule 4 of the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017 and Schedule 3 of the Marine Works (Environmental Impact Assessment) Regulations 2007

[7] The primary implementation of this Directive in the UK is the Wildlife & Countryside Act 1981, which has not been amended by specific EU Exit legislation)

[8] The UK Supreme Court may overturn binding pre-EU Exit case law if they consider it 'right to do so'

[9] The term “national site network” is used in the Conservation of Habitats and Species Regulations 2017 and the Conservation of Offshore Marine Habitats and Species Regulations 2017. The two terms refer to the same network of sites ((Scottish Government, 2020d).