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

Section 1: Background, Aims and Options

Background to Policy Issue

Both the Scottish and UK Governments have ambitious plans for offshore wind development in UK waters.

The UK Government’s CP2030 has set an ambition to decarbonise Great Britain’s electricity system by 2030 and sets out GB-wide capacity ranges of 43-50GW (gigawatts) of offshore wind in 2030, and 72-89GW in 2035. Delivery of CP2030 is dependent on projects in Scotland's pipeline.

The ScotWind and Innovation and Targeted Oil and Gas (INTOG) leasing rounds promise to be transformational in delivering wider economic supply chain benefits to Scottish businesses and communities for decades to come, while providing a significant boost to Scottish and UK-wide green energy production. ScotWind and INTOG put Scotland at the forefront of offshore wind development globally, with a current reported potential pipeline of over 40GW of offshore wind projects on top of our existing operational capacity.

In Scotland, as in the rest of the UK, various environmental assessments are required to be carried out in relation to offshore wind plans projects. This includes Habitats Regulations Appraisals (HRA) required under the Habitats Regulations, which assesses the effects of projects and plans on the UK/national site network. Where a plan or project is not directly connected with or necessary for the management of protected site(s), and where the possibility of a likely significant effect’ on these sites cannot be excluded, either alone or in-combination with other plans or projects, an Appropriate Assessment (AA) should be undertaken.

If it is concluded that the plan or project will have an adverse effect on the site integrity (“AEOSI”) of a protected site (either alone or in-combination with other plans or projects), the derogations process will be triggered. The plan or project can only be authorised where the derogation provisions are satisfied. The derogation provisions currently require that where the alternatives test and imperative reasons for overriding public interest (IROPI) have been met, compensatory measure(s) must be secured.

For offshore wind development in Scotland, the derogations process is anticipated to be triggered at the plan and project level largely due to the impacts of offshore wind development on protected seabird species.

Under the current regime, compensatory measures must be secured to ensure that the overall coherence of the UK/national site network is protected. The application in practice of this provision to date has been interpreted to mean ‘like-for-like’ compensatory measures must be secured i.e., the measure should be targeted to the impacted habitat or species.

However, there is a limited amount of ‘like-for-like’ compensatory measures available that can be evidenced to the required degree under the current regime. This creates challenges for delivering Scotland’s and the UK’s offshore wind ambitions, as there have been difficulties identifying suitable compensatory measures that are targeted at particular features impacted by offshore wind projects. In light of the proposed pipeline of upcoming offshore wind developments, greater flexibility in our approach to environmental compensation under the Habitats Regulations is required for offshore wind activities.

For these reasons, the Scottish Government has been working collaboratively with the UK Government and other devolved administrations on the development of cross-UK reform to the Habitats Regulations as they apply to offshore wind, using the powers set out in section 293 of the UK Energy Act 2023.

The habitats reforms are an important part of the UK Government’s Offshore Wind Environmental Improvement Package (OWEIP) and in Scotland the Acceleration and Regulatory Reform of Offshore Wind (ARROW) programme, which supports the growth of offshore wind by helping to de-risk and accelerate planning decisions while supporting positive investment to protect the marine environment.

Purpose/Aim of Action and Desired Effect

The OW EAR SSI, underpinning policies and forthcoming guidance seek to make a wider range of compensatory measures available to compensate for the adverse effects of offshore wind projects, including measures which would not be considered ‘like-for-like’ because they do not seek to directly benefit the impacted features or species affected by a development.

Coupled with other elements of the OWEIP, the intention of the habitats reforms is to help offshore wind developments move efficiently through the consent determination process and proceed to construction and operation, thus accelerating investment in offshore wind. At the same time, the reforms seek to promote positive investment in the marine environment, helping to ensure investment in renewable energy is also supporting natural ecosystems.

Reforming how compensatory measures are secured for offshore wind developments has been recognised as essential for ensuring a clean energy pipeline and its economic benefits, and as a means of delivering net zero and tackling the twin crises of climate change and biodiversity loss. If the policy was not progressed via the OW EAR SSI and associated guidance, there is a real risk that Scotland’s offshore wind ambitions would be limited by the availability of compensatory measures.

Scottish Government are working with UKG to ensure alignment across Scottish inshore and offshore waters, so as not to not add complexity to the operational landscape by creating a divergent consenting system across UK waters while allowing a responsible approach to development. A collaborative approach between the UK Government and Scottish Government was taken in the development of the OW EAR SSI (and the equivalent UK SI) to ensure a consistent approach across the various consenting regimes.

Rationale for Government intervention

The reforms being introduced by the OW EAR SSI and associated guidance are needed to meet ministerial commitments to delivering Scotland’s offshore wind ambitions, to combatting the climate and nature crises, and to realising the significant economic opportunities of Scotland’s path to net zero. To achieve these ambitions, a reformed approach to the application of the Habitats Regulations for offshore wind is required to allow for a more practical and strategic approach to the delivery of environmental compensation where it is required.

Options (Considered so Far/Still Open)

Approach to Consultation

In the Strategic Compensation Policy consultation, the Scottish Government only consulted on one policy approach – to amend the current requirement under the Habitats Regulations (as they apply to offshore wind) for compensatory measures to be secured to ensure that the overall coherence of the UK/national site network is protected. The proposed amendment consulted on was that compensatory measures which benefit the protected site network overall must be secured for relevant offshore wind activities (as defined in the Energy Act 2023); and that the ecological benefit of those compensatory measures must be reasonably proportionate to the level of damage to the protected site network.

The purpose of this amendment is to enable the use of ‘wider measures’ which may be beneficial to features that are different from the specific protected features affected by the development, or where the link between wider measures and a benefit to a specific feature cannot easily be demonstrated, for example, by targeting broad scale pressures that impact a number of protected features of the protected site network.

In addition, the Scottish Government consulted on how related elements of policy would apply in light of the above changes to the Habitats Regulations (as they apply to offshore wind). This included but was not limited to matters such as the timing of compensation, dealing with small impacts, additionality and adaptive management.

Following consultation analysis of feedback received and further engagement with the UK Government, other devolved administrations and Statutory Nature Conservation Bodies (SNCBs), the above approach was confirmed for taking forward in the development in the OW EAR SSI (and the equivalent UK SI) in addition to associated guidance.

‘Do nothing’ Approach

As part of policy options considered, we have considered not amending the Habitats Regulations and maintaining the current requirement for compensatory measures to be secured to ensure that the overall coherence of the UK/national Site Network is protected. This approach is not considered a viable option. As set out above, the current approach creates challenges for delivering Scotland and UK offshore wind ambitions.

There have been difficulties identifying suitable compensatory measures that are targeted at particular features impacted by offshore wind projects. In light of the proposed pipeline of upcoming offshore wind developments, greater flexibility in our approach to environmental compensation under the Habitats Regulations is required for offshore wind activities.

Sectors/Groups Affected

In preparing this BRIA, we have conducted a qualitative assessment of the sectors of the economy and specific groups which are expected to be either directly or indirectly affected by the policy. On this basis, this BRIA focuses on the potential impacts of delivering the habitats reforms for the offshore wind industry and related sectors (e.g., supply chain businesses), commercial fisheries, other marine users, and regulatory bodies.

Further detail is set out in Section 3 (Costs, Impacts and Benefits) below.