Conservation of Habitats and Species (Offshore Wind) (Miscellaneous Amendments) (Scotland) Regulations 2026: BRIA

Executive Summary

The proposed Offshore Wind Environmental Assessment Reform Scottish Statutory Instrument (OW EAR SSI) that will reform the Habitats Regulations for offshore wind, the underpinning Strategic Compensation Policy for Offshore Wind and forthcoming associated guidance (together referred to as the ‘habitats reforms’) have together been developed to provide a more flexible and pragmatic approach to environmental compensation requirements under the Habitats Regulations for offshore wind, unlocking barriers to offshore wind and its associated benefits and providing new opportunities for positive investment in Scotland’s marine environment.

The habitats reforms are being implemented using powers in section 293 of the UK Energy Act 2023. These reforms are critical to delivering Scotland’s offshore wind ambitions and to contributing to delivery of the UK Government’s Clean Power 2030 Action Plan (CP2030).

A collaborative approach between the Scottish Government and UK Government has been taken to the development of the policy and legislation, to ensure a consistent approach across the consenting regimes. Scottish Ministers have executively devolved competence in relation to applications for consent to construct and operate electricity generating stations under the Electricity Act 1989 across both the Scottish inshore region (within 12 nautical miles (nm)) and offshore region (beyond 12 nm). Legislatively, however, the Scottish Ministers only have the power to amend the Habitats Regulations as they apply to the Scottish inshore region.

The UK Government has the power to make legislation in the Scottish offshore region, and any amendments made to the Habitats Regulations^[2] through the UK Government’s Statutory Instrument (SI) will apply there. The Scottish Government will be responsible for developing guidance on how the policy would apply across both the Scottish inshore and offshore regions.

The policy intention is that the SI and SSI will achieve mirror reforms as far as possible. We consider it important to achieve this coherence for developments which have components in both the inshore and offshore regions.

The key desired purpose of the OW EAR SSI and forthcoming guidance is to allow for the delivery of strategic compensation and wider compensatory measures (as set out in the Strategic Compensation Policy consultation). The current requirement in the Habitats Regulations states that the appropriate authority must secure that any necessary compensatory measures are taken to ensure that the overall coherence of protected sites in the network of European sites in the UK, which is referred to in the Habitats Regulations as either the UK site network or the national site network (“UK/national site network”) is protected.

The OW EAR SSI will amend this current requirement with a requirement that Scottish Ministers must secure that compensatory measures are taken that benefit the UK Marine Protected Area (MPA) Network in a manner which is reasonably proportionate to the adverse effects, or predicted adverse effects, on the integrity of the European site or European offshore marine site. The UK MPA Network includes Special Protected Areas (SPAs), Special Areas of Conservation (SACs), MPAs, Sites of Special Scientific Interest (SSSIs) and Ramsar sites.

The SSI also includes a requirement that measures are secured in accordance with the compensation hierarchy. The compensation hierarchy will be a tiered approach to selecting compensatory measures which will be included in the guidance. It will categorise compensatory measures by the way in which they benefit the UK MPA Network. It is anticipated that the hierarchy will require ‘like-for-like’ compensatory measures to be considered first above ‘wider measures’. However, there may be circumstances in which it would be appropriate to select a ‘wider measure’ if it offers a greater ecological benefit to the UK MPA Network.

There will also be a requirement that Scottish Ministers issue and have regard to guidance regarding the implementation of the OW EAR SSI.

This BRIA follows on from a partial BRIA completed on the Strategic Compensation Policy for Offshore Wind which set out the proposed reforms to the Habitats Regulations for delivery through the OW EAR SSI and associated guidance. The partial BRIA was published as part of the Strategic Compensation Policy consultation held from 22 July – 1 September 2025. This full BRIA builds on the partial BRIA, considering the consultation feedback in order to form final conclusions on impacts anticipated from the implementation of the habitats reforms on businesses and regulatory processes.

This BRIA provides a qualitative assessment of the impact of the habitats reforms on key impacted areas such as the offshore wind industry (including related business activities such as supply chain and manufacturing), commercial fisheries, other users of Scotland’s marine environment, and regulatory bodies. It also provides a high-level assessment of the impact on licensing and consenting in Scottish waters. The conclusions of this qualitative assessment align with those found within the partial BRIA and are as follows:

• The reforms will have positive impacts for the offshore wind industry and related businesses (e.g., supply chain) as it will provide opportunities for a wider range of compensation to be secured for offshore wind development.
• The reforms could have potential negative impacts on commercial fisheries due to the expansion of offshore wind development and the introduction of spatially defined compensatory measures.
• Other marine users (e.g., commercial shipping) may be impacted by the expansion of offshore wind development and spatial demands for compensatory measures, which will increase demand for use of marine space.

Whilst this BRIA takes a qualitative approach given the scope of the SSI and underpinning policy, the Scottish Government has also completed a quantitative assessment of the potential impacts associated with Scotland’s wider offshore wind ambitions as part of developing the draft updated Sectoral Marine Plan for Offshore Wind Energy (SMP-OWE). Interested groups may also wish to consider the social and economic impact assessment and the partial BRIA developed as part of that consultation. Both of these assessments are available here: https://consult.gov.scot/offshore-wind-directorate/updated-sectoral-marine-plan-offshore-wind-energy/.