What legal protection applies under these designations?
Special Areas of Conservation ( SACs) are designated under the EU Habitats Directive. Nature Conservation Marine Protected Areas ( MPAs) are designated under the Marine (Scotland) Act 2010. This section sets out the respective legal requirements.
Special Areas of Conservation
All EU member states are obligated to designate Special Areas of Conservation ( SACs) for a range of habitats and species as listed in the EU Habitats Directive (the Directive). The Directive requires that the sites are managed to ensure that the conservation objectives of the qualifying features are achieved. Article 6 of the Directive defines how SACs should be managed and protected.
The designation of these sites requires the implementation of conservation measures which correspond to the ecological requirements of Annex I 'habitats' and Annex II 'species' present on the site. (Article 6(1)).
Appropriate steps should also be taken to avoid, in the SACs, the deterioration of the natural habitats and habitats of species, as well as significant disturbance of species for which the site is designated. (Article 6(2)).
In addition, any plan or project ( e.g. new policy or development) should be assessed to ensure that it does not have any negative implications for a SAC. Where there is a likely significant effect (or it cannot be ruled out) the proposal must undergo an appropriate assessment to determine the implications for the site. Subject to article 6(4), authority must only be given where it can be established that site integrity will not be adversely affected. (Article 6(3)).
A plan or project may be authorised even if such assessment shows negative implications for a SAC only where there are no alternative solutions and where the plan or project must be carried out for imperative reasons of overriding public interest. Where this is the case all compensatory measures necessary must be taken to ensure that the Natura 2000 network is protected. More stringent controls are in place where the SAC hosts a priority habitat type and/or a priority species. (Article 6(4)).
Historically the Scottish Government has generally relied upon article 6(2), as read with Article 6(1), to ensure that fisheries were managed appropriately within SACs. An example of such action was the measures implemented in April 2014 to protect the reefs of Lochs Duich Long & Alsh SAC. This approach is in keeping with current published EU guidance.
However, a review of the requirements of the Directive has concluded that Article 6(3) should also apply to changes in fisheries policy, and other fisheries management plans.
This means that every change of fisheries policy or fisheries management plan (or the development of new management arrangements) would require to be tested against the provisions in Article 6(3). Without having requisite fisheries management measures in place for each SAC it would be virtually impossible to rule out a likely significant effect beyond reasonable scientific doubt. This means that even beneficial changes in policy or management plans could be prevented from occurring.
However by putting the necessary fisheries management measures in place such assessment under article 6(3) is unlikely to be required because there could be no significant effect. This also applies to SACs where little fishing activity takes place.
Nature Conservation Marine Protected Areas
The Marine (Scotland) Act 2010 has a number of legal provisions which support the protected features of a MPA.
According to s3 of the Act the Scottish Ministers and public authorities must exercise functions in a way best calculated to achieve sustainable development and if appropriate enhance the health of the Scottish marine area.
Under s82 and s83 public authorities have duties in relation to Marine Protected Areas. In s82 they are required to further the achievement of the conservation objectives where possible whilst exercising their own functions. If they cannot further the objectives then they should act in a way that least hinders them. In s83 public authorities should only grant authorisation to activities which do not present a significant risk of hindering the conservation objectives. Although these duties do not specifically apply to Scottish Ministers they will make decisions in accordance with them.
Under s85 Scottish Ministers may make Marine Conservation Orders to further the achievement of the conservation objectives. This may entail prohibiting, restricting, or regulating any activity in any way that is considered necessary.
In s95 there are general protective provisions which make it an offence to kill or injure a protected species of a MPA. It also makes it an offence to remove, pick, collect, cut, uproot, destroy, or damage a protected habitat. There are exceptions and defences detailed in s97 of the Act which means s95 cannot deliver all the management requirements alone.
Under s99 Marine Management Schemes can be established to further the conservation objectives of a MPA.
In addition to the legal provisions in the Act to protect MPAs Marine Scotland has produced a management handbook and this outlines the aim of producing a management plan for each MPA. The management plan will outline arrangements for each site or group of sites and would incorporate all relevant measures including those contained in this consultation paper once they have been refined as necessary to take account of consultation responses and implemented.