Conservation of Habitats and Species (Offshore Wind) (Miscellaneous Amendments) (Scotland) Regulations 2026: ICIA screening report

Step One – Develop a clear understanding of your objectives

Name of policy, strategy or service:

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

(referred to as the Offshore Wind Environmental Assessment Reform Scottish Statutory Instrument (OW EAR SSI))

1. What are the objectives of the policy, strategy or service?

Policy Background

In Scotland, as in the rest of the UK, various environmental assessments require to be carried out in relation to proposed developments in the marine environment. This includes Habitats Regulations Appraisals (HRA) which is a statutory requirement to undertake under the “Habitats Regulations” (The Conservation (Natural Habitats, &c.) Regulations 1994 and the Conservation of Habitats and Species Regulations 2017), which are derived from the EU’s Habitats and Wild Birds Directives.

The HRA process assesses the potential impact from proposed developments on protected species and habitats (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”). As part of the HRA process, compensatory measures must be secured if an adverse impact from a proposed development on a protected site is predicted and the following is true:

• The impact cannot be sufficiently mitigated against;
• There are no reasonable alternatives to the development;
• It is determined that despite the impact, the development is imperative to go ahead for reasons of public interest, for example it is deemed critical for decarbonisation and mitigating the impacts of climate change.

For offshore wind development in Scotland, the greatest concern for adverse impacts on the UK National Site Network is in relation to protected seabirds. An example of a compensatory measure for addressing adverse impacts on seabirds could be a control measure on species that prey on seabirds.

Under the current Habitats Regulations, 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 has been interpreted to mean that ‘like-for-like’ compensatory measures must be secured, meaning that the measure must be evidenced to directly offset the impact to the impacted species/feature.

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 a UK wide package of reforms to the Habitats Regulations as they apply to offshore wind, using the powers in section 293 of the Energy Act 2023 (https://www.legislation.gov.uk/ukpga/2023/52/contents).

Policy Aims

The proposed OW EAR SSI that will reform the Habitats Regulations for offshore wind, the underpinning Strategic Compensation Policy for Offshore Wind (“the Policy”) 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 purpose of these Habitats Regulations reforms for offshore wind is to enable a more flexible approach to compensatory measures by enabling the use of strategic and wider compensatory measures to offset the adverse impacts of offshore wind.

An SSI will be laid in the Scottish Parliament to deliver reforms to the Habitats Regulations as they apply to offshore wind in the Scottish inshore region (0-12 nautical miles (nm)).

In parallel a UK Statutory Instrument (SI) will provide reforms that apply in the Scottish offshore region (beyond 12nm). The 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 Scottish Government will also release statutory guidance, once the legislation comes into force, which will provide offshore wind developers and delivery partners in Scotland with practical guidance to support them in applying the UK wide Habitats Regulations reforms in practice.

The reforms 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.

2. What are the intended impacts/outcomes and how do these potentially differ across the islands?

Due to the scale and potential cumulative impact of existing, proposed and planned offshore wind development in Scotland, it is likely that Scottish offshore wind plans and projects will be required to undergo the derogations process under the Habitats Regulations and secure suitable compensatory measures.

A key focus of the reforms is therefore to enable the delivery of strategic compensation and a wider range of compensatory measures than is currently permitted for offsetting the adverse impacts of offshore wind on protected habitats and species.

The reforms therefore seek to enable the delivery of Scotland’s offshore wind ambitions by reducing barriers to identifying suitable environmental compensation.

Whilst Scotland’s offshore wind ambitions and the delivery of compensation for offshore wind could have a differential impact across islands, the OW EAR SSI and underpinning Policy itself is not anticipated to do so, as it does not mandate the type or location of offshore wind development or of compensatory measures. It provides a legislative and policy framework that will provide for greater flexibility for compensatory measures but does not set out types of measures or locations.

The SSI and underpinning policy are expected to impact:

• Offshore wind developers operating within Scottish inshore waters who are subject to the Habitats Regulations (and the equivalent UK SI will impact developers operating within Scottish offshore water)
• Public sector bodies involved in offshore wind decision making in Scotland (e.g. the Scottish Government, Statutory Nature Conservation Bodies (SNCBs) such as NatureScot, Crown Estate Scotland)
• Environmental non-governmental organisations (eNGOs) and research and science organisations involved in the delivery of offshore wind developments in Scotland

Other marine industries such as the fishing sector, in addition to local communities and users of coastal and marine spaces (including island and coastal communities) may be impacted by the implementation of strategic compensatory measures. However, these impacts will differ depending on the specific type and location of compensatory measures brought forward. For instance, a compensatory measure for addressing the impacts of an offshore wind farm could be a programme of rodent eradication on a remote Scottish island or a programme of spatial management measures in an area of the sea with potential access restrictions for other marine users. This would have various impacts on the people living in the area where the measures were taken forward.

However, as above, the proposed SSI and underpinning Policy will not prescribe or mandate specific compensatory measures. Instead, it provides an enabling legislative and policy framework to allow wider compensatory measures. It does not directly impose or implement compensatory measures. As such, the intended impacts/outcomes from the SSI and underpinning policy are not anticipated to differ for islands communities or across the islands.