Marine (Scotland) Act 2010 - Marine Conservation Order provision changes: environmental report

Non-Technical Summary

Introduction

The Scottish Government is committed to maintaining a healthy and biologically diverse marine and coastal environment that continues to provide economic, social and wider benefits to meet the long term needs of people and nature. The Scottish Biodiversity Strategy to 2045 sets out the vision to restore and regenerate biodiversity across Scotland's land, freshwater and seas by 2045, while ambitions under the Environment Strategy for Scotland include focus on the protection and restoration of Scotland's nature with flourishing biodiversity, clean and healthy air, water, seas and soils.

The Scottish Government's Marine Directorate is proposing to strengthen the current Marine Conservation Order (MCO) provisions under the Marine (Scotland) Act 2010 ("the 2010 Act") to enable Scottish Ministers to make MCOs under additional circumstances in Scottish inshore waters (0-12 NM).

What is Strategic Environmental Assessment?

The Environmental Assessment (Scotland) Act 2005 ("the 2005 Act") requires that certain public plans, programmes and strategies be assessed for their potential effects on the environment. Strategic Environmental Assessment (SEA) is the process used to fulfil this requirement and includes consultation with the public and the Consultation Authorities.

SEA identifies the likely significant environmental impacts of plans and policies and proposed reasonable alternatives to them. SEA also identifies mitigation measures that are required to avoid or minimise any significant adverse effects and highlights opportunities for enhancements of beneficial effects. Taking place at an early stage in the plan or policy preparation process, it ensures that decision-making is informed by relevant environmental information. SEA provides opportunities for the public to consider this information and use it to inform their views on the draft plan or policy. In accordance with the 2005 Act and Scottish policy, Scottish Ministers are committed to applying the SEA process as part of the development of the MCO amendment proposals.

A screening and scoping exercise was undertaken by Scottish Government's Marine Directorate in accordance with the requirements of the 2005 Act. Comments were invited from the Scottish Consultation Authorities. The outcome from the Screening and Scoping Report and the consultation responses confirmed the need for an SEA as there is potential for significant environmental effects to occur as a direct result of the proposals. Their views are taken into account in this report which summarises the findings of the SEA.

Further details of SEA process is set out in section 1.2 of the main report.

What are the proposed changes to Marine Conservation Order (MCO) provisions?

MCOs are a statutory mechanism under the 2010 Act which enables Scottish Ministers to ensure the conservation of nationally important marine heritage sites. Where there is a case for protection, and following consultation processes^[1], Scottish Ministers can apply an MCO to any area in Scottish territorial waters (out to twelve nautical miles), for the purpose of furthering the stated conservation objectives/purposes of MPAs designated under the 2010 Act, or for protecting European marine sites where they overlap an MPA. The proposed changes seek to enable the use of MCOs where appropriate for the purposes of:

• protecting standalone European marine Sites (i.e. those which do not overlap spatially with a Marine Protected Area (MPA)); and
• protecting locations that are undergoing or have undergone nature restoration and enhancement projects.

The proposals therefore extend existing powers in the 2010 Act, with the provisions remaining applicable only in Scottish territorial waters.

Further details of the proposed changes are set out in section 2 of the main report.

How was the Strategic Environmental Assessment undertaken?

The SEA provides a high-level assessment of the potential environmental effects that are likely to result from the implementation of the proposed extension to MCO provisions, and consideration of a series of key questions ('SEA objectives'). These SEA objectives reflect the scope of the assessment as well the environmental protection objectives from relevant legislation. The assessment has identified the individual and overall (cumulative) beneficial and adverse effects of the proposals on a number of SEA topics, specifically Biodiversity, Flora and Fauna; Soil; Water; Climatic Factors; and Cultural Heritage. In order to recognise the interlinkages of these SEA topics, Soil and Water have collectively been given consideration under the overarching topic 'Biodiversity, Flora and Fauna'.

At this stage, it is only possible to undertake a high-level SEA to consider the type of impacts that could arise from the future application of MCOs under these proposed extended provisions, as no specific sites have been identified yet for future application of these provisions.

The potential economic and social impacts that may result from the implementation of the legislative reforms does not form part of the scope of this SEA. Additional assessments may be undertaken, as appropriate, to help estimate the socio-economic benefits, costs, and risks associated with the proposed reforms. Section 91 of the Marine (Scotland) Act 2010 also sets out a duty on Scottish Ministers to assess the socio-economic and environmental impact of restricting activity when making an MCO.

Further details of the approach to the assessment are set out in section 3 of the main report.

Which reasonable alternatives have been assessed?

Given that spatially specific areas to which MCOs will be applied under these proposed extended provisions have not yet been identified, reasonable alternatives are considered to be high level considerations of alternative management options that meet the aims of MCOs. Reasonable alternatives have been considered to include:

• "Do nothing", i.e., keep the provisions of the 2010 Act as they are currently; and
• Seek to secure outcomes through voluntary mechanisms or guidance approaches.

Under the "Do nothing" scenario, the current disparity between protection mechanisms available for designated sites will continue: while there are alternative mechanisms available to introduce fisheries management measures, these cannot be used to manage other activities in these areas (including activities that do not require a licence or a permit such as recreation, diving, and anchoring in some instances). In terms of nature restoration and enhancement projects, Demonstration and Research MPAs offer a potential route of protection where it is required, but not all nature restoration and enhancement projects will be able to meet the requirements for Demonstration and Research MPA designation, therefore potentially leaving them vulnerable to damage. This can have the effect of disincentivising positive actions for nature recovery.

Voluntary mechanisms and guidance approaches, complementary to or in lieu of any legislative measures, can still be explored prior to the implementation of MCOs especially for restoration purposes under the proposed new provisions. The new proposed provisions however will enable the use of an existing, appropriate, and flexible regulatory mechanism if required. Given the increased spatial squeeze and competing use of the marine environment, sole reliance on voluntary mechanisms and guidance approaches is unlikely to achieve nature restoration ambitions.

Further details of reasonable alternatives are set out in section 3.4 of the main report.

What is the current state of the environment?

The Scottish marine environment covers an area of over 462,000 km², the territorial sea limit (Scotland's inshore waters) of which is approximately 44,480 km². The Scottish marine environment comprises a wide variety of habitats including intertidal rocky and sediment shores, subtidal rocky reefs and sandy / muddy sea bed to deep-sea sediment sea floor as well as the water column itself. Scotland has over 18,000 km of coastline and its inshore and offshore areas are among the largest of any country in the European continent, representing 13% of all European seas.

Scotland's marine environment supports a diverse complex of different habitats, which in turn support a wide range of marine plants and animals. Estimates suggest there are around 6,500 species of animals and plants (excluding microbial flora and seabirds) in Scotland's seas. Many of these occur within Scotland's inshore waters (0 – 12 NM).

At a high level, key pressures to species and habitats in Scotland's inshore waters can be caused by climate change, coastal developments, dredging for sediments, pollution, marine litter, seabed abrasion, and the introduction and spread of invasive non-native species, in addition to localised pressures from specific activities in the area that particular species or habitats may be found. The effect of pressures is dependent on their intensity and the sensitivity and vulnerability of marine and coastal species and habitats to the pressures. The making of MCOs considers the local and specific need for any additional protection to minimise or remove a pressure on a habitat or species.

Benthic (seafloor) habitats are vital natural resources, as many marine species rely, directly or indirectly, on the seafloor to feed, hide, rest or reproduce. Generally benthic habitats are characterised by low mobility species. Benthic marine habitats within the Scottish marine environment can be characterised into three broad groups: intertidal habitats; subtidal (inshore and shelf sea); and deep sea habitats (found predominantly in offshore waters, and to a very limited extent inshore).

The pelagic environment/water column operates at a large scale in terms of physical, chemical, and biological processes, which can have consequences through the food chain and other habitat types^[2]. As well as providing an important role in climate regulation, the pelagic environment provides vital habitat that supports a wide range of mobile species.

Scotland's marine environment has a range of mobile species with several populations considered to be either of international or national importance. Mobile species in Scottish waters include the following groups:

• Seals (grey and harbour seals);
• Cetaceans (23 species have been recorded in Scottish waters over the last 25 years; of these, 11 are regularly sighted^[3]);
• Birds (both breeding seabirds and overwintering waterbirds);
• Fish, incorporating marine and diadromous species, including sharks, rays and skates; and
• European otter (inshore waters only).

The importance of Scotland's marine ecosystems is reflected in the range of designations which protect them at international and national levels. The Scottish MPA network consists of 247 sites, 233 of these are for nature conservation purposes, covering 37% of Scotland's seas.

Scotland has a wide range of geological (rocks, minerals, fossils and structures), geomorphological (landforms and processes) and soil features that make up the marine and coastal landscape. The condition of these features influences the quality of habitats and in turn the viability and health of both flora and fauna populations.

Scotland's seas (out to 3 NM from territorial baseline) are mostly classed as being of high or good ecological status under the Water Framework Directive (WFD). There are some poorer quality waters in certain areas. In terms of Good Ecological Status (GES) under the Marine Strategy Regulations (which applies out to the limit of Scotland's Exclusive Economic Zone (EEZ)), GES has been achieved for 4 out of 15 descriptors. Environmental status has declined since 2012 for birds, and has remained stable for cetaceans, pelagic habitats, benthic habitats, non-indigenous species, eutrophication, changes in hydrological conditions, litter and input of anthropogenic sound. Environmental status has improved since 2012 for seals, fish, commercial fish and shellfish, food webs, contaminants, and contaminants in seafood.

The key pressures on the climate are derived from the continued global emission of greenhouse gases, including carbon dioxide. These emissions are recognised as leading to changes in the global climate (including changes in temperatures, precipitation, and storm density) in turn causing changes in the physical characteristics of the oceans, including potential changes in sea temperatures, circulation, salinity, pH and sea level rise.

Multiple habitats across Scottish seas and coastal areas can be termed blue carbon habitats due to their fixation and sequestration ability. Their effectiveness as carbon sinks is highly dependent upon their long-term capacity to store carbon. Inshore, key blue carbon habitats include seagrass, saltmarsh, kelp beds, and biogenic reefs.

There are numerous scheduled monuments and listed buildings along the Scottish coastline, with designated wrecks and military remains sites identified both inshore and offshore. Three of Scotland's six designated World Heritage Sites (WHS) are on the coast (St. Kilda; The Heart of Neolithic Orkney; The Forth Bridge). Other key coastal features include a number of Category A listed lighthouses, ecclesiastical remains, coastal heritage museums, military defences, harbours, forts and castles. There are 9 Historic MPAs designated within Scottish waters.

Further details of the environmental baseline are set out in section 4 of the main report.

What are the likely significant environmental effects of the Plan?

This SEA has been undertaken as a high-level assessment of the potential environmental effects that are likely to result from the implementation of the proposed extension to MCO provisions.

The implementation of the proposed extension of MCO provisions to standalone European marine sites and to nature restoration and enhancement projects has been assessed to result in:

• Potential benefits to marine biodiversity and the marine ecosystem;
• Potential spillover benefits beyond MCO boundaries; and
• Potential adverse effects resulting from the displacement of activities from MCO boundaries into new areas and the intensification of activities in areas where these activities already occur.

Potential benefits

In generic terms, the adoption of the proposed extensions to existing MCO provisions has been assessed to result in overall beneficial effects on the overarching topic Biodiversity, Flora and Fauna (including the topics Soil and Water) and contribute to the achievement of the SEA objectives. This is because it will be possible for MCOs to be made in evidenced circumstances to manage damaging marine activities in European marine sites and to protect nature restoration and enhancement projects. This will allow for ecosystem recovery and biodiversity enhancement.

MCOs offer a comprehensive protection mechanism. There are some existing mechanisms available for the management of fisheries activities (see section 2.2.5 for further details), but these offer less flexibility than MCOs. For certain activities (e.g., construction or deposition activities), management is also provided through the marine licensing regime[4]. Any potential impacts to an MCO from a proposed licensable activity would be considered in the determination of that licence application. This may help to reduce pressures associated with marine licensable activities in the areas of MCOs, particularly for restoration projects.

Change in pressures within MCO areas may also result in the potential for spillover benefits beyond the boundaries of the managed area. Spillover occurs when there is a population surplus in the newly protected area and the carrying capacity of that area is surpassed. It must be acknowledged however that there is variability in the success at which spillover benefits have been observed in other studies as they are influenced by site specific factors.

The management of areas that include habitats that are blue carbon habitats (such as seagrass, saltmarsh, kelp beds, and biogenic reefs) could contribute to the achievement of the Climatic Factors SEA objective.

Neutral effects

The extended MCO provisions do not broaden the application of MCOs to other cultural heritage features. Effects to the SEA objective for the 'Cultural Heritage' topic have therefore been assessed as neutral.

Potential adverse effects

Potential adverse effects may result from the displacement of activities from MCO boundaries into new areas and the intensification of activities in areas where these activities already occur. The scale of the impact and the sector impacted by the displacement would be dependent on the specifics of any management measures implemented using the proposed extended MCO provisions, and the ability of the sector to adapt given other potential restrictions they may be under. There is potential for transboundary effects for EU Member States if activities are displaced outwith areas under the Scottish jurisdiction.

Summary

Overall, the environmental benefits of enhanced protection that will result from the extended MCO provisions are anticipated to be greater than the adverse environmental impacts associated with displacement of activities.

Further details of the environmental effects are set out in section 5.2 of the main report.

What are the cumulative effects of the Plan?

In terms of cumulative effects, the benefits would be additive, the scale of which would depend on the number, spatial area, and details of the management brought forward from any MCOs made under the extended provisions. The scale of the displacement of activities to other areas as a result of any MCOs introduced under the proposed extended provisions would also depend on the spatial area of the MCOs and the level of 'spatial squeeze' from other activities occurring at the time.

It is important to consider how these proposals interact with other plans, programmes and strategies. There could be cumulative beneficial effects from enhanced protection as well as cumulative adverse effects from potential displacement of fishing activity (e.g., from fisheries management measures being considered for inshore MPAs and Priority Marine Features (PMFs), currently under SEA assessment).

Further details are set out in section 5.4 of the main report.

How will significant environmental effects be mitigated?

Overall, there are no anticipated significant environmental adverse effects from the proposed extension to MCO provisions, with potential adverse effects related to displacement activities through implementation (i.e., the making of individual MCOs under secondary legislation) likely to be minor and less than the benefits of increased protection through the making of any MCOs.

Any MCOs proposed in future would be subject to the consultation processes set out under existing provisions of the 2010 Act and would need to include consideration of the socio-economic impacts of introducing an MCO.

The Environmental Report has not identified any additional factors beyond those addressed in policy-making that would need to be monitored.

Further details of mitigation and monitoring are set out in section 5.5 of the main report.

How do I respond to the consultation?

We are inviting responses to this consultation by using the Scottish Government's consultation hub, Citizen Space (http://consult.gov.scot). Access and respond to this consultation online at https://consult.gov.scot/marine-scotland/marine-restoration-and-marine-conservation-order. You can save and return to your responses while the consultation is still open.

If you are unable to respond using our consultation hub please complete the Respondent Information Form and

Email to: marinerestoration@gov.scot

Or send to:

Marine Nature Restoration policy team

Area 1B North

Scottish Government

Victoria Quay

Edinburgh

EH6 6QQ

What happens next?

At the end of the consultation process, the views of stakeholders and the public on the proposals and Environmental Report will be analysed. In light of these comments, the proposals will be reviewed, updated and finalised. Following the public consultation, a Post-adoption Statement will be produced, demonstrating:

• how environmental considerations have been integrated into the proposals;
• how the environmental report has been taken into account;
• how the views of the consultation authorities have been taken into account;
• how the results of the consultation have been taken into account;
• the reason for choosing the proposals, as adopted, in the light of other reasonable alternatives considered; and
• the measures that are to be taken to monitor the significant environmental effects of the implementation of the proposals.

If significant changes are made to the proposed changes to MCO provisions, this SEA will be reviewed in order to consider whether any further assessment work will be required.