1. Introduction

1.1. Project Background

  1. Berwick Bank Wind Farm Limited (the Applicant) is proposing to develop the Berwick Bank Wind Farm (The Project), in the outer Firth of Forth and Firth of Tay within the former Round 3 Firth of Forth Zone.
  2. The Project will include offshore and onshore infrastructure including an offshore generating station (array), offshore export cables to landfall and onshore transmission cables leading to an onshore substation with electrical balancing infrastructure, and connection to the electricity transmission network. The offshore components of the Project seaward of MHWS are referred to as the Proposed Development.
  • The array comprises 307 wind turbines, with an estimated capacity of 4.1 gigawatt (GW). The array will be approximately 47.6 km offshore of the East Lothian coastline and 37.8 km from the Scottish Borders coastline at St, Abbs. It lies to the south of the offshore wind farms (OWF) known as Seagreen and Seagreen 1A, south-east of Inch Cape offshore wind farm and east of Neart Na Goaithe offshore wind farm.
  1. The most precautionary conclusions of the Report to Inform Appropriate Assessment (RIAA) of the Proposed Development has identified the potential for an adverse effect on the integrity of the following eight SPAs from the impacts of the Proposed Development (alone and/or in-combination):
  • Forth Islands SPA
  • St Abbs Head to Fast Castle SPA
  • Fowlsheugh SPA
  • Farne Islands SPA
  • East Caithness Cliffs SPA
  • Troup, Pennan & Lion's Heads SPA
  • Buchan Ness to Collieston Coast SPA
  • Flamborough and Filey Coast SPA
  1. As such, the Applicant has proposed a derogation case including identifying compensatory measures which could be delivered to secure the overall coherence of the national site network, if necessary.  The compensatory measures selection process, as set out within the Derogation Case, together with stakeholder consultation resulted in one fisheries management measure and two colony measures being selected from a long list. The chosen measures, as illustrated in Figure 1   Open ▸ , comprise of the following:
  • Management of SA4 sandeel fishery (either under a “full closure of SA4” or an “ecosystem-based management” or option);
  • Rat Eradication: Handa; and
  • Dunbar Castle Wardening Role.
    1. These measures are substantial, and reasons and evidence have been provided within the Derogation Case that should give Scottish Ministers confidence that they will maintain and enhance the national site network. This evidence is supported, and should be read alongside the accompanying technical appendices (the Fisheries Compensatory Measures (FCM) Evidence Report and the Colony Compensatory Measures (CCM) Evidence Report).
    2. Information on how each of the measures will be implemented and monitored is provided in the Derogation Case: Implementation and Monitoring Plan (IMP). This includes a range of built-in adaptive management measures specific to each measure and a number of secondary measures, that could also be implemented as part of an adaptive management response. Rat eradication at Inchcolm Island is included as a secondary measure that may be implemented for adaptive management purposes. A complete account of this measure is included within this document however it should be noted that further stakeholder consultation would be required before this specific measure could be secured and the intention is not to take this measure forward as compensation at this stage

Figure 1:
A map of the proposed locations for the proposed compensatory measures including the SA4 sandeel fishery, Handa island, Dunbar Castle, and Inchcolm island (included as a secondary measure for adaptive management purposes).

Figure 1: A map of the proposed locations for the proposed compensatory measures including the SA4 sandeel fishery, Handa island, Dunbar Castle, and Inchcolm island (included as a secondary measure for adaptive management purposes).

1.2. Purpose of this Document

  1. This document presents an assessment of the likely significant environmental effects of the compensatory measures being developed as part of the derogation case for the Proposed Development. The compensatory measures are being brought forward as a consequence of the Proposed Development’s potential effects on the national site network. Any effects arising from the compensatory measures are, on a precautionary basis, considered to be indirect or secondary to the effects of the Proposed Development, and for consideration under the Habitats Regulations Appraisal (HRA) regulations (see section 3.1.1). The purpose of this document is to assess the effects of the proposed compensatory measures with respect to designated sites to determine if any are likely to be significant pursuant to the requirements of the HRA regulations. For full context regarding the policy and legislative context see the RIAA for the Proposed Development

1.3. Structure of this Document

  1. This derogation case RIAA is set out in a number of stages as follows:
  • Consultation (Section 1.4);
  • Description of the proposed compensatory measures for the Proposed Development (Section 2);
  • A brief summary of the HRA process (Section 3);
  • An HRA section for each compensatory measure (Sections 4 to 7), with each section containing the following sub-sections:

–      Screening – an assessment to determine if there is no likely significant effect (LSE) to arise for the project alone with regard to the designated features of the European sites under consideration;

–      Information to Inform Appropriate Assessment where screening has identified LSE

  • Conclusions (Section 7); and
  • References (Section 9).
    1. Detail on the need for the compensatory measures and alternative compensatory measures considered to date is provided in Part D of the Derogation Case.

1.4. Consultation

  1. The Applicant has undertaken consultation with relevant stakeholders and SNCBs as part of the preparation of the Derogation Case (namely, NatureScot, Marine Scotland – Licensing Operations Team (MS-LOT), Historic Environment Scotland (HES), Department for Environment Food and Rural Affairs (Defra) the Scottish Seabird Centre, the Centre for Ecology and Hydrology, the National Trust, the National Trust for Scotland, the Scottish Wildlife Trust, Crown Estate Scotland (CES), the Royal Society for the Protection of Birds (RSPB), Dunbar Harbour Trust (DHT), East Lothian Council (ELC), East Lothian Council Ranger Service (ELCRS), Scottish Fishermen’s Federation (SFF), local ornithological consultants, and local bird ringers) regarding compensation measures for the Proposed Development. Further detail on this consultation is presented in the Consultation Log (Appendix 1 of the Derogation Case). Engagement will be ongoing with various stakeholders for the proposed compensatory measures at various stages through the process, as detailed in the IMP.

2. Proposed Compensatory Measures

2.1. Introduction

  1. A full description of each proposed compensatory measure can be found within the IMP, CCM Evidence Report, and FCM Evidence Report.
  2. In order to facilitate a HRA of the measures, a Maximum Design Scenario (MDS) has been defined for each measure, which is presented in Table 1   Open ▸ . This essentially represents the scenario(s) that would have the greatest impact and has been defined so that “worst case” scenario can be assessed. As a result, we can be confident that any other (lesser) scenario(s) will have an impact that is no greater than that assessed.
  3. The proposed compensatory measures are categorised into two groups, ‘Colony Based’ and ‘Fisheries Based’ measures as follows:
  • Fisheries Based measures:

–      Management of SA4 sandeel fishery (considering two options: closure of SA4 sandeel fishery and ecosystem-based management ).

  • Colony Based measures:

–      Rat Eradication: Handa;

–      Dunbar Castle Wardening Role;

–      Rat Eradication: Inchcolm (secondary measure).

2.2. Maximum Design Scenario

  1. The MDS parameters for the relevant compensatory measures are the worst case for any given assessment. This approach ensures that the scenario that would have the greatest impact (e.g. longest duration or most significant level of disturbance) is assessed; and there is confidence that any other (lesser) scenarios will have an impact that is no greater than that assessed.
  2. Table 1   Open ▸ and Table 2 present a summary of the MDS identified for the compensatory measures. Due to the nature of the compensatory measure for sandeel fishing, this measure has been presented with a different MDS per receptor (Table 2). This MDS has been identified by examination of the implementation plan combined with knowledge of similar projects, and applying expert judgement on the variables which may result in greater impacts.
Table 1:
Maximum design scenario for compensatory measures

Table 1: Maximum design scenario for compensatory measures

2.3. Compensatory Measures Commitments

  1. The approach taken to HRA for the compensatory measures is summarised in Figure 2   Open ▸ . Where the screening conclusion is that there is a LSE, the primary measure applied to avoid an AEoI is mitigation. For the Proposed Development, these mitigation measures are identified below in Table 2   Open ▸ .
  2. The commitments described in Table 2   Open ▸ are incorporated within the IMP. As part of the process of discharging suspensive requirements of consent conditions, it is anticipated that the Applicant will produce a Colony Measures Implementation Plan and Sandeel Measures Implementation Plan for submission to Scottish Ministers. Each plan will be informed by stakeholder feedback and the commitments made in the IMP. Section 6 of the IMP details the Applicant’s recommendation to Scottish Ministers on how this process should be secured within the consent. 
Table 2:
Commitments relating to the proposed compensatory measures

Table 2: Commitments relating to the proposed compensatory measures

 

3. Habitats Regulations Appraisal Process

3.1. Legislative Context, Government Policy and Guidance

3.1.1.    EU Habitats Directive

  1. The EU Habitats Directive (Council Directive 92/43/EEC) and, by virtue of Article 7 of that Directive, also the Wild Birds Directive (Directive 2009/147/EC), termed jointly as the Nature Directives, seek to conserve particular natural habitats and wild species across the EU by, amongst other measures, establishing a network of sites (“European sites”); and a legal framework for species requiring strict protection (European protected species). The aim is to ensure the long-term survival of viable populations of Europe's most valuable and threatened species and habitats, to maintain and promote biodiversity. 
  2. The requirements concerning the authorisation of plans or projects which may adversely affect European sites are contained in Articles 6(3) and 6(4) of the (EU) Habitats Directive. 
  3. Articles 6(3) and 6(4) of the EU Habitats Directive specifically are transposed by the following regulations in the UK, collectively known as the Habitats Regulations (with the process known as a Habitats Regulations Appraisal (HRA)): 
  • The Conservation (Natural Habitats, &c.) Regulations 1994; 
  • The Conservation of Habitats and Species Regulations 2017 (including where applicable to specific reserved activities, including sections 36 and 37 of the Electricity Act 1989); and
  • The Conservation of Offshore Marine Habitats and Species Regulations 2017.
    1. The relevant provisions for HRA in the different sets of Habitat Regulations are materially the same and there is no legal or practical need to differentiate between them in this submission. It is noted that the term HRA Regulations is used to refer to all three sets of Regulations. 
    2. Since the UK’s withdrawal from the EU (European Union (Withdrawal) Act 2018 (as amended)), the HRA process implemented under the Habitats Regulations is subject to a few minor changes as defined by Scottish legislation (Scottish Government, 2020a) and guidance (DTA, 2021a: in draft). With designation of further ‘European sites’ in Scotland and with opinions on IROPI now carried out by the Scottish Ministers, the minor changes of relevance to the derogation case includes: 
  • European sites in Scotland and the wider UK are termed “National sites” and are collectively termed the “National Site Network”, including those that formed part of the Natura 2000 network immediately before 31 December 2020 plus any subsequently designated by the Scottish Government; 
  • Ramsar sites do not form part of the National Site Network in Scotland. However, protection of Ramsar features is achieved through co-designation of Ramsar sites with European sites and/or Sites of Special Scientific Interest (SSSI)
  • Whilst the Scottish Government (2020a) confirms EU guidance will be adhered to on meeting the management objectives for what is now the UK’s National Site Network (the “Network Objectives”), further guidance is also available for the UK (Defra 2021a).
  • Section 6(2) of the EU (Withdrawal) Act 2018 (as amended) establishes that UK courts “may have regard to anything done by a EU entity [i.e., the EC]…so far as it is relevant”. 
    1. In Scotland and the UK, the Habitats Regulations define National sites as Special Areas of Conservation (SAC), Sites of Community Importance (SCI), candidate SACs and Special Protection Areas (SPAs). Potential SPAs (pSPAs) and possible SACs (pSACs) are also afforded the same protection as National sites by government policy in the National Marine Plan and Scottish Planning Policy (Scottish Government 2015; Scottish Government 2014).
    2. Of additional note are recent rulings by the European Court of Justice (ECJ), referred to here as Sweetman II or ‘People over Wind’, and Holohan. The People over Wind ruling relates to how screening for potential LSE is carried out, specifically that mitigation cannot be taken into account at that stage (but remains applicable for the determination of adverse effect). The Holohan ruling relates to the importance of species and habitats which are not a reason for the designation of the site but are relevant to the conservation objectives of the site (e.g. prey items of a designated species). These recent examples of case law have helped to shape this HRA document.

3.2. The Habitats Regulations assessment Process

  1. The Habitats Regulations require that whenever a project that is not directly connected to, or necessary for the management of a European site, is likely to have a significant effect on the conservation objectives of the site (directly, indirectly, alone and/ or in-combination with other plans or projects), then an AA must be undertaken by the Competent Authority (e.g. Regulation 63 of the Conservation of Offshore Marine Habitats and Species Regulations 2017). The AA must be carried out before consent or authorisation can be given for the project.
  2. The European Commission’s guidance on Planning for the Protection of European Sites: Appropriate Assessment (European Commission, 2001) identifies a staged process to the assessment of the effects of plans or projects on European sites. This process determines potential LSE and (where appropriate) assesses adverse impacts on the integrity of a European site, examines alternative solutions, and provides justification of IROPI (including compensatory measures). HRA includes a four-stage process, as summarised below:
  • HRA Stage 1 – Screening: Screening for potential LSE (alone and/ or in-combination with other projects or plans);
  • HRA Stage 2 – Appropriate Assessment: Assessment of implications of identified potential LSEs, or if there is not enough information to rule out a risk of LSE, on the conservation objectives of a European site to ascertain if the proposal will adversely affect the integrity of a European site;
  • HRA Stage 3 – Assessment of Alternatives: Where it cannot be ascertained that the proposal will not adversely affect the integrity of a European site, alternative solutions must be considered; and
  • HRA Stage 4 – Assessment of IROPI and compensatory measures: Where it can be demonstrated that there are no alternative solutions to the project, the project may still be carried out if the competent authority is satisfied that the scheme must be carried out for IROPI.
    1. All four stages of the process are referred to as the HRA to clearly distinguish the whole process from the one step within it referred to as the ‘AA’. The first stage (Screening) is intended to determine where there is a potential for a likely significant effect to occur on any designated sites and / or features. Where the Screening process concludes the potential for a LSE, then there is a requirement for an AA (Stage 2). Stage 1 Screening for the Proposed Development compensatory measures has identified the possibility of LSE for certain features and effects. The required Stage 2 AA will be conducted by the competent authority, with the information necessary to inform that assessment provided here in the RIAA.

3.3. Approach to Screening (HRA Stage 1)

3.3.1.    Introduction

  1. The first stage to the HRA process is Screening, the process followed to identify LSE from the project, alone and or in-combination, on European sites of nature conservation importance.
  2. For consideration of in-combination aspects, it is assumed for screening purposes that where LSE applies alone, that LSE applies in-combination. It is recognised that there remains the potential for an effect which does not result in potential LSE alone to contribute to a potential LSE in-combination.
  3. An overview of the approach to this derogation case RIAA process is provided in Figure 2   Open ▸ .

Figure 2:
The derogation case RIAA Process

Figure 2: The derogation case RIAA Process

3.3.2.    Identification of Potential Effects

  1. Considerable experience and knowledge exists from practical conservation projects, with regard to the potential effects that may result from the proposed compensatory measures. This therefore provides a wealth of knowledge which can be drawn upon by the Applicant when identifying the potential effects that need to be considered through the screening process.
  2. In addition, for a number the designated sites, NatureScot has prepared site advice supporting documents, which are intended to help with site assessments and the impact of marine activity in sensitive areas. Specifically, the ‘Conservation and Management Advice’ documents are relevant here, as these identify the type of effect that specific features are sensitive to. All these sources of information have been drawn together to produce a list of effects that may result from each compensatory measure and that need to be taken into account when determining LSE for designated sites and features. The potential effects identified for each compensatory measure are detailed in Table 3   Open ▸ .
Table 3:
Potential effects from the compensatory measures on relevant receptor types.

Table 3: Potential effects from the compensatory measures on relevant receptor types.

3.3.3.    Identification of Sites and Features for Screening

  1. In order to identify the sites to be considered for screening, the potential areas for each compensatory measure have been analysed using Geographic Information System (GIS mapping). The screening ranges applied below were selected on a highly precautionary basis based on the types of impacts identified following industry standards for large scale projects (i.e. offshore wind farms). Screening may alter for specific compensatory measures however these modifications in each case represent an appropriate highly precautionary basis and are explained within the relevant sections as appropriate. Sites have been identified by applying the following filters:
  • Sites with Annex I features (designated benthic habitats) – within a 20 km buffer, as this is considered the worst-case maximum range to which proposed activities may interact with subtidal habitats;
  • Sites with Annex II species (designated migratory fish feature and/or freshwater pearl mussel feature) - within 100 km buffer, as this is considered the worst-case maximum range that migratory fish species could move outside their respective SACs, to potentially interact with proposed activities;
  • Sites with Annex II species (designated marine mammal feature) - where the relevant species Management Unit (MU) has physical overlap with the project area, as SAC feature marine mammals are protected beyond their respective SAC boundaries to within defined MUs;
  • Sites with a designated seabird, wader or wildfowl feature (offshore and intertidal ornithology) - within an appropriate buffer dependent on the nature of the compensatory measure. For all measures aside from the management of SA4 sandeel fishery, a 5km buffer has been used, and this is considered highly precautionary based on the disturbance ranges considered within NatureScot Guidance for Scottish bird species (maximum range of 1 km for any species) (NatureScot, 2022) and these ranges are considered to incorporate supporting habitat as well. For the management of the SA4 sandeel fishery, the screening range is based on the mean-max foraging range (Woodward et al. 2019) so the range is species dependent; and
  • Onshore – any sites with non-mobile features only within a 2 km buffer have been included as this is considered the worst-case maximum range to which proposed activities may interact with onshore habitats. An extended 5km buffer for sites with bird or bat features has been applied to account for supporting habitat for these mobile species. These buffers are considered highly precautionary considering the nature and scale of proposed land-based activities,

3.3.4.    Screening for Potential LSE

  1. The site identification process documented in Section 3.3 generated a list of designated sites and relevant features for which there is a need to consider LSE in relation to each compensatory measure. In addition, in Table 3   Open ▸ , the likely effects that may result from all phases of each compensatory measure (and are relevant to the receptors being considered here) have been identified to enable these to be considered. The screening process combines that information for the project alone and presents the assessment of potential LSE to provide the necessary information for Stage 1 of the HRA process. Where LSE applies alone, it is assumed that LSE applies in-combination.
  2. It should be noted that the effects identified above for each of the compensatory measures do not automatically correlate to a potential LSE with respect to one or more designated feature. For an effect to manifest, the receptor needs to be sensitive and there needs to be a pathway. The conclusions on Stage 1 screening, in relation to the identified sites and designated feature(s), are presented in Section 4 to Section 7 for each compensatory measure.

3.4. Approach to Appropriate Assessment (HRA Stage 2)

  1. Where the Screening process concludes the potential for a LSE, following the precautionary principle there is a requirement for an AA (Stage 2). Stage 1 Screening for the Proposed Development compensatory measures has identified the possibility of LSE for certain features and effects. Stage 2 involves the assessment of implications of identified potential LSEs on the conservation objectives of a European site to ascertain if the proposal will adversely affect the integrity of that site. The AA should also consider habitat types and species present outside the boundaries of that site and functionally linked; insofar as those implications are liable to affect the conservation objectives of the site. The required Stage 2 AA will be conducted by the competent authority, with the information necessary to inform that assessment provided within this document in Section 4 to Section 7 for each compensatory measure.
  2. With respect to the assessment in-combination, it is assumed in accordance with the precautionary approach that where LSE applies alone then LSE applies in-combination (paragraph  29). Further, the potential contribution to LSE in-combination by the proposed measures could stem not only from those effects where potential LSE exists alone, but also potentially from an aspect of the proposed measure that is not significant when considered alone, but that may become potentially significant when considered in-combination. As such, where the potential exists for the proposed measure to contribute to potential LSE in-combination this has been considered.

4. Habitats Regulations Assessment – Management of SA4 sandeel fishery

4.1. Assessment of LSE

  1. Screening for potential LSE considers the effects that may result from this compensatory measure, as defined in Table 3   Open ▸ , in relation to the designated sites identified following the process described in Section 3.3. This section combines that information to determine the potential LSE for the project alone. Key to LSE is the clear presence or absence of a pathway, linking the effect to a designated site or feature, together with known sensitivity of the feature to the effect.
  2. The presence or absence of a pathway is based on the scope and nature of the proposed compensatory measure activities together with the location of the designated feature, with the sensitivity of the feature(s) drawing on the relevant information available for the designated sites. Based on the nature of effects associated with this measure, screening has been undertaken based on a review of evidence to suggest which species may be significantly impacted. The species identified as being dependent on discards from fishing vessels are black-legged kittiwake, common gull, great black-backed gull, great skua, herring gull, lesser black-backed gull, Northern fulmar and Northern gannet (Camphuysen et. Al., 1995). Species-specific screening ranges based on the mean-max foraging range (Woodward et al., 2019) have been applied for this assessment to identify the potential sites that may be affected.
  3. The conclusions for LSE for this compensatory measure are presented in Table 4. Where a potential LSE is identified, on a precautionary basis, it has been assumed by extension that there is the potential for LSE in-combination with other plans and projects.
Table 4:
Screening for LSE from the management of SA4 sandeel fishery compensatory measure

Table 4: Screening for LSE from the management of SA4 sandeel fishery compensatory measure

 

4.2. Assessment of Adverse Effect Alone – Information to Inform Appropriate Assessment

  1. Where the potential for LSE on a European site(s) has been identified ( Table 4   Open ▸ ), following the precautionary principle there is a requirement to consider whether that potential effect(s) will adversely affect the integrity of the site in view of its conservation objectives. LSE applies where a feature is known to be sensitive to the effect and a potential pathway cannot be discounted.
  2. The assessment of AEoI to inform the AA for the management of SA4 sandeel fishery compensatory measure is presented in Table 5   Open ▸ ; the table details all designated sites, features and effects for which LSE has been identified, proposes appropriate commitments (mitigation) that could be applied to avoid or reduce the impacts (Table 2), and provides conclusions on whether there is potential for AEoI after the application of these commitments for the project alone. This assessment has been undertaken in view of all relevant conservation objectives published by the statutory nature conservation bodies.
Table 5:
Assessment of AEoI Alone for the management of SA4 sandeel fishery compensatory measure

Table 5: Assessment of AEoI Alone for the management of SA4 sandeel fishery compensatory measure

 

4.3. Assessment of Adverse Effect In-combination – Information to Inform Appropriate Assessment

  1. Based on the nature and scale of effects associated with the management of SA4 sandeel fishery compensatory measure, the scope of plans and projects to consider under the in-combination assessment is those that have the potential to act in-combination with the proposed measures to result in AEOI on any European sites. The search for plans and projects spanned a significant number of plans and projects that qualify for consideration, which can be grouped as follows:
  • Oil and gas ;
  • Cables and pipelines;
  • Offshore wind farms;
  • Tidal energy;
  • Wave energy projects; and
  • Seismic / geophysical surveys.
    1. Following the approach to the assessment outlined above, it is not considered that any plan or project considered within these categories has the potential to contribute in a meaningful way to a reduction in discards (i.e. a prey resource for seabird features). Therefore, these projects are not considered further. On this basis it can be concluded that the proposed measure will not result in an AEOI on any European site in-combination with other plans and projects. .