Environmental damage: extending the Environmental Liability Directive into marine waters Consultation on amending the Environmental Liability (Scotland) Regulations 2009 in Scotland to transpose Article 38 of the Offshore Safety Directive 2013

The proposals

2.1 Article 38 of the OSD extends the offshore scope of the Environmental Liability Directive ( ELD). The ELD is transposed in Scotland by the Environmental Liability (Scotland) Regulations 2009 ("the 2009 Regulations") ^[3] . The ELD already applies to, amongst other things, damage affecting protected habitats and species in Scottish territorial waters out to 12 nautical miles (by the 2009 Regulations) and to such damage in the Scottish offshore region, i.e. from 12 to 200 nautical miles (by the Environmental Damage (Prevention and Remediation) Regulations 2009) and damage to waters covered by the Water Framework Directive ( WFD) (2000/60/ EC) ^[4] and by the current domestic regime.

2.2 Waters covered under the WFD include coastal waters which extend up to 1 nautical mile seaward from the baseline from which the territorial sea off Scotland is measured. Under the domestic regime the 2009 Regulations provide that coastal waters extend to 3 nautical miles from the baseline, consistent with provision made under the Water Environment and Water Services (Scotland) Act 2003. WFD and the 2009 Regulations also cover transitional waters which are bodies of water in the vicinity of river mouths which are partly saline in character as a result of their proximity to coastal water but which is also substantially influenced by freshwater flows.

2.3 Specifically, Article 38 of the OSD amends Article 2(1)(b) of the ELD to extend, via sub-paragraph (ii) below, the geographical scope of the ELD to include damage to marine waters, as defined in the Marine Strategy Framework Directive ( MSFD) (2008/56/ EC) ^[5] as follows:

"water damage", which is any damage that significantly adversely affects:

(i) The ecological, chemical or quantitative status or the ecological potential, as defined in Directive 2000/60/ EC [the WFD], of the waters concerned, with the exception of adverse effects where Article 4(7) of that Directive applies; or
(ii) The environmental status of the marine waters concerned, as defined in Directive 2008/56/ EC, in so far as particular aspects of the environmental status of the marine environment are not already addressed through Directive 2000/60/ EC."

2.4 Marine waters are defined in the MSFD as:

(a) Waters, the seabed and subsoil on the seaward side of the baseline from which the extent of territorial waters is measured extending to the outmost reach of the area where a Member State has and/or exercises jurisdictional rights, in accordance with the UNCLOS7, with the exception of waters adjacent to the countries and territories mentioned in Annex II to the Treaty and the French Overseas Departments and Collectivities; and
(b) Coastal waters as defined by Directive 2000/60/ EC, their seabed and subsoil, in so far as particular aspects of the environmental status of the marine environment are not already addressed through that Directive or other Community legislation.

2.5 In effect, the current geographical limit to water damage will be extended beyond coastal waters covered by the WFD (the Directive provides the seaward extent to be one nautical mile from the baseline from which the breadth of the territorial sea is measured) and beyond the current limit of the 2009 Regulations which, consistent with the approach taken in the Water Environment and Water Services (Scotland) Act 2003, provide that the seaward limit of coastal waters is three nautical miles seaward from the baseline in Scotland) to cover all marine waters (as defined by the MSFD) under the jurisdiction of Member States. In coastal waters, environmental damage will also be extended to cover the MSFD descriptors not already covered by WFD (see paragraph 3.3).

2.6 Annex 1 contains draft Amendment Regulations that are proposed to be made to the 2009 Regulations necessary to make this change to cover all Scottish territorial waters. We propose to amend regulations 2 and 4 of the 2009 Regulations to extend the definition of water damage. It is proposed that the 2009 Regulations, as amended, will not apply to damage that significantly affects the environmental status of marine waters caused by an emission, event or incident which took place before the Amendment Regulations come into force (19 ^th July 2015) or to such damage to those waters caused by an emission, event or incident that occurs after the Amendment Regulations come into force resulting from a specific activity that took place and finished before that date.

Competent authorities

2.7 We propose to amend regulation 7 of the 2009 Regulations to give effect to the following enforcing authority arrangements:

• The SEPA would continue to enforce against water damage under WFD (surface waters, groundwater, transitional waters and coastal waters) up to 3 nautical miles seaward from the baseline in Scotland; and
• Scottish Ministers would be the enforcing authority in relation to damage which significantly affects the environmental status of marine waters under the MSFD out to 12 nautical miles from the baseline in Scotland and in coastal waters, other than where the damage is already addressed in coastal waters under WFD and domestic legislation for which SEPA is the enforcing authority.

2.8 Currently SEPA is the competent authority for damage to water in the sea out to 3 nautical miles off the Scottish coastline. That will remain the case. In addition to its responsibilities as the competent authority in relation to damage to marine species and habitats out to 12 nautical miles, Marine Scotland will also assume responsibility on behalf of Scottish Ministers for damage to waters from the coast out to 12 nautical miles under MSFD. As Scottish Ministers do not have legislative competence to make provision in respect of water damage to offshore marine waters (beyond 12 nautical miles to the limit of the Scottish exclusive economic zone) provision is being made in Defra's equivalent transposing Regulations for Scottish Ministers to have enforcement powers in relation to damage to marine waters in that area. These would mirror those the Scottish Ministers currently have as the competent authority for damage to marine species and habitats from 12 nautical miles out to the limit of the Scottish exclusive economic zone.

Question 1: do you have any comments on the way in which we propose to transpose Article 38 of the OSD as set out above?