Hydrogen: planning and consenting guidance

8. Offshore Hydrogen Projects

8.1. Introduction

Offshore green hydrogen production that is directly integrated with offshore energy generation also has potential application in Scotland. It is yet to be deployed but would likely involve electrolyser and other plant directly integrated to offshore wind (or separate) platforms with hydrogen transported to land via a dedicated pipeline.

Offshore hydrogen will involve a different set of consenting processes and considerations to onshore hydrogen projects and require careful consideration. A range of licences, authorisations and permits are potentially applicable and have been summarised below.

Emerging proposals should be discussed with Marine Directorate - Licensing Operations Team (MD-LOT), North Sea Transition Authority (NSTA) and Offshore Petroleum Regulator for Environment & Decommissioning (OPRED) and Crown Estate Scotland (CES) at the earliest opportunity to review and confirm consenting requirements.

It should be noted that onshore aspects of the any offshore hydrogen projects will usually also require planning permission (and potentially other authorisations / licenses / permits). The relationship between the statutory land use planning system and marine planning and licensing is explained in Planning Circular 1/2015.

8.2. Marine Licence

Certain activities in Scotland’s seas require a marine licence before they can be carried out. Licensable marine activities are set out fully in Section 21 of the Marine (Scotland) Act 2010 and Section 66 of the Marine and Coastal Access Act 2009 and should be reviewed carefully by all applicants.

Examples of licensable marine activities forming part of an offshore hydrogen project could include marine construction works such as platforms, hydrogen production equipment or other related infrastructure, or deposit of substances in the sea.

MD-LOT is the regulator responsible for determining marine licence applications on behalf of the Scottish Ministers in the Scottish inshore region (between 0 and 12 nautical miles) under the Marine (Scotland) Act 2010, and in the Scottish offshore region (between 12 and 200 nautical miles) under the Marine and Coastal Access Act 2009.

MD-LOT has published guidance on marine licensing to guide prospective applicants through the whole process including Guidance on considerations before submitting an application, detailing pre-application consultation, EIA Screening & Scoping, and application process and timescales. These should be reviewed by all applicants and early contact with Marine Directorate - Licensing Operations Team is recommended to ensure applicants are informed of project specific requirements.

Pre-application Consultation

Specific Guidance on Marine Licensable Activities subject to Pre-Application Consultation is relevant to certain prescribed activities in the Scottish inshore region.

8.3. Environmental Impact Assessment for Offshore Hydrogen Projects

Applications for marine licences for the construction of offshore hydrogen projects may be subject to Environmental Impact Assessment (EIA). Relevant legislation is:

• The Marine Works (Environmental Impact Assessment) (Scotland) Regulations 2017(for projects from 0-12 nautical miles).
• The Marine Works (Environmental Impact Assessment) Regulations 2007 (as amended) (for projects from 12-200 nautical miles).

An EIA is required in all instances for works which are of a description in Schedule 1 (2017 Regulations) or Schedule A1 (2007 Regulations), Schedule 2 works (2017 Regulations) or those listed in schedule A2 (2007 Regulations) are those of a description in that schedule meeting or exceeding any thresholds and criteria in the schedule, or are located in a ‘sensitive area’^[27]. Such development must be ‘screened’ to determine if an EIA required, with a request for a ‘screening opinion’ submitted to MD-LOT. If a project is likely to have significant effect on the environment by virtue of factors such as its nature, size or location, then an EIA is likely to be required.

Those schedules of the above Regulations include descriptions of projects for ‘integrated chemical installations’ and ‘industrial installations for carrying gas’ which could apply to the construction of works for offshore hydrogen production depending on the nature of the project. If proposing to integrate offshore hydrogen production works to an existing or previously consented offshore energy generating station project, it may also fall under Schedule 2 (2017 Regulations) or A2 (2007 Regulations) as a change or extension to works already authorised or executed.

Offshore hydrogen developers should closely review the Regulations and Schedules therein as well as undertake early pre-application engagement with MD-LOT to establish specific requirements. Further information on EIA requirements and process for marine licensing is also provided by Marine Directorate.

8.4. Further Offshore Licensing & Consenting Considerations

Depending on the location and activities involved for offshore hydrogen projects a number of marine environmental licensing and consenting considerations may also apply.

• European Protected Species (EPS) or a basking shark licensing - Licences are required for activity likely to cause disturbance or injury to a marine European Protected Species (EPS) or a basking shark. Licensing responsibility is shared between several authorities depending on the purpose and location of the activity. Further Guidance has been prepared by MD-LOT and should be reviewed for all offshore hydrogen projects.
• Habitats Regulations Appraisal - MD-LOT must be satisfied there will be no adverse effect on the integrity of a European site (Special Area of Conservation or Special Protection Area) before issuing any authorisation, including a Marine Licence. This is addressed through a Habitats Regulations Appraisal through which a competent authority assesses the impact of a proposed project on a European site. For projects within, or with potential connectivity to, a designated site, including European Sites, applicants must provide enough information to inform the HRA. A summary of the HRA process for marine licensing has been prepared by MD-LOT and further Guidance on HRA prepared by NatureScot.
• Marine Protected Areas – These will be taken into consideration as part of marine licensing and if required MD-LOT will carry out a Marine Protected Areas Assessment focusing on the stated conservation objectives of the MPA and considering advice from NatureScot. For projects where this is relevant, applicants must provide enough information to inform the assessment. Further detail on MPA’s is provided by MD-LOT and guidance has been prepared by NatureScot.
• For offshore hydrogen production projects within 12 nautical miles of the shore a industrial activities authorisation will be required from SEPA – see section 7.1. For projects beyond 12 nautical miles developers should undertake engagement with the NSTA and OPRED at the earliest opportunity to review requirements for environmental permits and licences.
• If an offshore electrolytic renewable hydrogen production facility within 12 nautical miles of the shore involves the use of a combustion installation, then under the Offshore Combustion Installations (Pollution Prevention and Control) Regulations 2013 a permit will be required from the Offshore Petroleum Regulator for Environment and Decommissioning (OPRED).
• A permit may also be required under the Offshore Chemicals Regulations 2002 to release any chemical, such as hydrogen, into the water. Further detail and guidance around these Regulations has been prepared by OPRED and should be reviewed.
• Pre-application, option agreement, exclusivity rights and leasing application for use of the foreshore, seabed and operations within the 200 nautical miles zone, will normally require consenting or licensing through Crown Estate Scotland. This engagement will include proximity checks to ensure no conflict with existing projects.

8.5. Section 36 Consent

Marine-based energy generation stations require consent under Section 36 of the Electricity Act 1989, subject to certain scale and locational criteria^[28]. Applications for S36 consent are made to the Scottish Government and processed by MD-LOT.

The production of green hydrogen and associated infrastructure is not an energy generation station and would not itself trigger this requirement, however any offshore energy generation (wind/wave/tidal) proposed as part of a project would require S36 consent (subject to relevant criteria).

For offshore hydrogen projects where S36 consenting may be relevant, developers should review the following information and guidance, as well as undertake early pre-application engagement with MD-LOT to establish specific requirements:

• Marine licensing and consenting: offshore renewable energy projects - gov.scot (www.gov.scot)

8.6. Offshore Pipelines Authorisation

The construction of offshore pipelines in Scotland is regulated by the Petroleum Act 1998 - with authorisation required from the North Sea Transition Authority (NSTA) (formerly the Oil & Gas Authority). Following consultation and legislative review in 2023 the Petroleum Act has been amended^[29] to extend the regime for authorising construction and use of offshore pipelines to include hydrogen pipelines and provide a clearer regulatory framework for emerging projects. Any proposals for offshore distribution via pipeline and/or storage of hydrogen should be reviewed with the NSTA and OPRED at the earliest opportunity to ensure full understanding of regulatory requirements and processes.

8.7. Seabed Rights

Assets managed by Crown Estate Scotland include the territorial seabed out to 12 nautical miles and around half of Scotland’s foreshore. Crown Estate Scotland manage all leasing activities on the seabed out to 12 nautical miles and have the delegated rights to lease for offshore renewable energy and gas storage out to 200 nautical miles.

Early engagement with Crown Estate Scotland will be required around seabed rights for any offshore hydrogen production facility to be installed on the foreshore and seabed out to 200 nautical miles or connected with gas storage or transport offshore.

A Licence may also be required from Crown Estate Scotland in relation to certain marine activity, including geophysical and environmental surveys.