Marine and coastal restoration plan: consultation analysis report

3. Theme 2 – Regulatory Environment

This chapter presents the analysis of Q4 to Q6, which cover Theme 2: “Regulatory environment”. This theme, containing three objectives, explores ways to ensure regulations, licenses and other oversight procedures support communities interested in undertaking restoration and protect habitats and species undergoing restoration, while safeguarding the environment and considering impacts on other sea users.

Around four fifths of respondents felt the first two objectives under Theme 2 were important to some extent, with 59% of those answering indicating that each objective is ‘very important’. The objective “Establish protection mechanisms for habitats and species undergoing restoration” was considered slightly less important, with 51% rating it as ‘very important’ and 73% considering it very or quite important.

At least three fifths of those answering Q5 felt that the actions under Theme 2 should be included in the plan. Support ranged from 62% for “Explore how best to implement a protection mechanism, in law, for habitats and species undergoing restoration” to 81% each for creating a one-stop-shop and encouraging early engagement with local communities and other stakeholders.

Q6: Is there any further information you would like to share with us on the objectives or actions in this theme? This could include your reasons for selecting the answers to the previous two questions, or any further reflections on the overall content of the theme.

Just under four fifths of all respondents left a comment at Q6, expanding on their views about the regulatory environment. The analysis below presents comments concerning each objective under Theme 2, followed by additional points raised.

Support restoration projects navigating the regulatory environment

While several respondents commented on this objective, some often outlined what they perceived as the existing challenges of the regulatory environment. As these are acknowledged in the plan, the analysis below focuses primarily on comments about the plan’s proposed actions under this objective.

Some respondents expressed mixed views about the action to “Identify opportunities to create and fund a support post(s) to help projects navigate regulatory requirements”. Supporters felt there could be value in creating such a post, as it would save projects time and money and support communities or projects with limited capacity. A few suggested responsibilities for such a post could include providing direct application support, serving as a liaison between agencies, and offering clear guidance on regulatory sequencing, application templates, and cost and timescale estimates. One individual suggested the person in the post could have Theme 2’s actions as targets as part of their job description.

A small number also stressed the need for the person in post to be familiar with local contexts and to be able to engage effectively with a range of stakeholders. The need for the post to be supportive of all parties with restoration ideas and accessible to other marine users, such as the fishing industry, and not just projects and environmental organisations, was also advocated by a few respondents. In addition, the National Trust for Scotland called for the action to be changed to “Create and fund a support post(s)…” to give it more strength and certainty.

“Community groups that we work with have cited that the regulatory environment is indeed a real barrier to them, so we welcome this effort to provide some support to them on navigating it… Access to an intermediary to give initial advice on current legislation, and to actively make the correct introductions & instigate practical dialogue will be appreciated.” – Flora & Fauna

Conversely, others argued that this should be a lower priority in the plan or that a full role could have value in the long term but may not be necessary immediately, if existing guidance could be made more effective. A few respondents, such as Scottish Environment SE LINK and WWF Scotland, felt the focus should be on simplifying or ‘fixing’ the regulatory environment itself, rather than funding a post to help projects navigate it.

Several respondents commented on the action “Create a ‘one-stop-shop’ for guidance, information and knowledge exchange, including a database of projects to improve oversight of where restoration is happening”. A range of views were expressed on a one-stop-shop. Some respondents left brief statements welcoming this proposal, describing it as “massively important”, “an extremely useful tool”, “a great start” and “essential” to improving the existing regulatory environment and providing clarity for restoration projects and marine developers. Conversely, one individual felt it could be helpful but insufficient if communities still lacked a coordinator post, while one organisation felt it should be a lower priority within the plan, as it could take time to establish and maintain.

“A centralised one-stop-shop for guidance and knowledge exchange is welcomed. We would suggest that its leadership be closely connected to the Stakeholder Advisory Group. There is a need for a comprehensive, well-structured restoration project database to track progress, identify barriers, and guide funding based on success rates and geographic distribution.” - West of Scotland & Orkney Fish Producers Organisations

“Having regulatory information all in one place is a fantastic idea - and in the order you need to do it in. Include checklists to ensure you have everything you need before proceeding to the next level etc.” - Individual

A few respondents cited existing resources or networks, such as the Coastal Partnership Network’s proposed Coastal Coordination Hub, the marine enhancement platform being developed by Crown Estate and the Environment Agency in England, NatureScot/Fauna & Flora/William Grant Community-led Marine Biodiversity Monitoring (CLMBM) Project, and a proposed Scottish Seagrass network. This led some respondents to call for the plan to either ensure collaboration between initiatives and avoid duplication of efforts, or, in a few cases, to focus on how to make better use of the resources and networks that are already available.

“At the very least, careful thought is needed about how any new portal is distinct from what already exists and how it can share content with other online resources. Having a single UK platform (as opposed to a purely Scottish one) is particularly important in cross-border areas such as the Berwickshire and Northumberland coast and the Solway where relevant activity might be happening on both sides of the Scotland-England border.” - Individual

A few commented specifically on creating a database of projects. These comments typically supported this proposal, expressing the view that a database would help provide a strategic overview of restoration work and increase transparency. Suggestions for how to make the database as effective as possible included that it: should be searchable; be interactive, e.g. with a data layer which can be added to the opportunity maps, integrate with relevant terrestrial and catchment-level datasets, e.g. SEPA’s RBMP tools and local development plans; and that participation should be voluntary and collaborative.

“We would like to stress the importance of the creation of a Database of restoration projects. This is not only important to monitor and assess progress towards targets, but, if well-structured to include the status of the project, the benchmarking indicators to evaluate its success and indication of barriers, reasons for failure or success, this will become extremely valuable going forward. An inventory, highlighting also the geographical spread and the rate of success of certain locations over others, might also help the redirection of funding streams.” - Scottish Fishermen's Federation

As noted at the start of this section, some respondents used Q6 to comment on the regulatory environment more generally. A few supported the plan’s intention to make improvements and simplify regulations.

“We welcome the intention to simplify and clarify the regulatory environment to enable restoration. Clear guidance, early engagement with regulators, and proportionate licensing processes will be essential to support delivery at pace and scale.” – Solway Firth Partnership

Others, however, either stated that the plan does not provide sufficient solutions or called for improvements they would like to see. These included making regulations for restoration as light-touch as possible; having greater policy certainty and investment protection; encouraging early engagement with regulators; more effective licensing processes; and a simpler, structured consenting process. WWF Scotland left a detailed comment in which they strongly challenged the draft plan’s assertion that “there is acknowledgement in the restoration sector that the system is complicated for a reason (namely that the marine environment is a complex and busy place and that regulation of active restoration is important to ensure it is carried out appropriately).”:

“The complexity of the marine environment is not the reason the regulatory system is complicated; in our view, the real issue lies in the fact that the Marine Licence framework was never designed with restoration in mind. As a result, it functions as a barrier rather than a facilitator. While appropriate checks and balances are essential to ensure restoration is carried out responsibly, these can—and should—be delivered through a more efficient and fit-for-purpose regulatory pathway, distinct from the frameworks designed for economic activities that risk damaging the marine environment.” – WWF Scotland

“It isn't sufficient to have a stated objective as 'Support restoration projects navigating the regulatory environment' without reviewing how effective the regulatory regime currently is and what barriers exist for restoration projects. Review and improvements of the existing system could be far more effective in achieving objectives than simply providing support to restoration projects navigating an obtuse and highly bureaucratic regulatory environment.” – Open Seas

“Local voluntary organisations - especially those that want to run a long-term restoration project - need to be faced with a cohesive and easy-to-understand set of regulations and goals, which at present do not exist. At present, the regulatory risk with attached financial risk is often not possible for such organisations to contemplate… This whole sector needs leadership from the top down to be one of 'can-do' rather than 'too complicated'.” – Northbay Innovations Ltd

Only one comment was made specifically about the objective “update and produce further guidance on regulatory requirements, including mapping what is needed and when”, which was a request for guidance on how to regulate and manage tourists in sensitive areas.

Encourage better join-up, transparency and information sharing across regulators and public bodies

This objective recorded the smallest number of comments at Q6. While not always directly commenting on the action to “Set up a forum for relevant bodies to share regular updates”, some respondents outlined the relevant bodies they felt should be included in future discussions. These included the Marine Directorate, local authorities, Crown Estate Scotland, Statutory Harbour Authorities, NatureScot, Fish Health Inspectorate, and SEPA. A small number cited existing groups they felt the Scottish Government should be aware of and engage with. One respondent commented on the areas where they felt better alignment with restoration was needed, including blue carbon strategies, fisheries management, and marine spatial planning.

“In the Outer Hebrides, the community planning partnership has a climate change group with activities delivered by the Outer Hebrides climate hub. The local authority and NatureScot are both in the group, along with Outer Hebrides Fisheries Trust, in the climate hub. Here is a great opportunity to collaborate with other members who represent community land trusts. Such groups have data, so it might be an idea to partner with them in the first instance. This may help overcome ‘imposition’ and help build trust in the community. – Climate Hebrides Community Interest Company (CIC)

“I would also flag the existing network of Coastal Partnerships which exist across Scotland (and the UK) as being a potential source of advice and support when navigating the regulatory environment and better understanding local restoration priorities.” - Individual

A few respondents also highlighted the importance of transparent discussions and information sharing. One organisation noted that the plan must help streamline the process and facilitate restoration, rather than create barriers. A response on behalf of the Barra and Vatersay Community, facilitated by the "Muir is Tir" project, noted that future frameworks need to be transparent and collaborative to address remaining concerns resulting from the Highly Protected Marine Areas (HPMA) process.

“The development of an appropriate forum is of the highest importance, with information sharing occurring across all stakeholders. However, the effective management of such a forum will be a challenge given the diverse interests of the different groups, though an approach based on the now-superseded Aquaculture Ministerial working groups may be appropriate. Further challenges are anticipated in defining the appropriate granularity for such a forum, and there may be a case for setting them up around specific geographies or projects.” - The Scottish Association for Marine Science

A range of views about the role of local authorities, and the action to “Invite local authorities to information workshops to raise awareness of restoration” were made by a small number of respondents. Views were expressed that local authorities might be too busy to engage or have limited resources to facilitate information sharing, and that their involvement would be unlikely to bring about change. Conversely, one individual felt that local authorities are a critical link between national and local policy, and a range of stakeholders, which means they can facilitate effective engagement.

Comments on the action “Work with regulatory bodies to ensure support for restoration is a key priority” were left by a small number of respondents. In addition to brief, singular calls for regulatory bodies to be given more powers and for them to move beyond “siloed, risk-averse approaches”, two organisations suggested a registration process for restoration projects, which they felt could encourage coordination and communication between regulators, improve timescales and encourage innovation. Salmon Scotland left a detailed response outlining information sharing challenges, and suggested:

“Alongside improved engagement opportunities for regulators and local authorities, there should be an action to develop a series of engagement sessions to improve engagement between regulatory bodies and private stakeholders to share restoration policy and guidance updates. The plan could monitor the effectiveness of these sessions by evaluating the effects they have on regulatory performance when determining developments with biodiversity restoration conditions.” – Salmon Scotland.

Establish protection mechanisms for habitats and species undergoing restoration

The action to “Explore how best to implement a protection mechanism, in law, for habitats and species undergoing restoration” received the most comments in Theme 2, and was raised across all respondent types but particularly nature conservation organisations and aquaculture organisations. On balance, respondents supported this action, but a range of views were noted which reflects the slightly lower proportion of respondents who felt this action should be included in this iteration of the plan.

Those favouring protection mechanisms highlighted the need for these to be in place for active restoration projects to be successful, and noted that protections should be in place before, during, and after restoration occurs. Having protection mechanisms in place was also felt to offer confidence to funders, including public sector funds, that habitats and species being restored would not be at risk of damage from other activities. A few respondents commented specifically on enforcement, noting that measures need to be robust enough to ensure offenders are prosecuted and that the scale of any penalties should be sufficient to deter damaging or illegal activity. One restoration organisation recommended that, if mechanisms are established, small community-led restoration projects that wish to apply for a protection mechanism have support to do so.

“Protection mechanisms for species and habitats undergoing restoration is critical to the success of and confidence in restoration projects. By providing legal mechanisms to safeguard restored ecosystems, we can enhance the successes and sustainability of restoration initiatives and enable them to take hold and scale without potential damage from other marine pressures.” – Flora & Fauna

Conversely, a few respondents felt that, while protection measures are necessary or could be beneficial in the future, this action should not be included in the plan. The main reason for this was that time would be needed to ensure the legislation is well-developed and future-proofed for potential challenges, and there was therefore a concern that this could delay the publication of the plan. For example, one organisation advocated for a voluntary code of conduct that could develop into temporary protections and then permanent measures. The Sustainable Inshore Fisheries Trust, however, felt that the exploration of options for protection measures should take place before the plan is published to ensure they are consulted on and are fit for purpose.

A few other respondents expressed the view that this action was not necessary because existing measures could be used. The Scottish Association for Marine Science and the Scottish Seabird Centre felt that Marine Conservation Orders (MCOs), cited in the plan, are already an appropriate mechanism, and Seawilding noted the Water Framework Directive (WFD) can be used to combat pollution and licensing conditions for fishing boats can be used to regulate who fishes where and when.

“On legal protection mechanisms, this should be reserved for future plans. Legislative tools are important, but they require careful design, flexibility, and evidence from early pilots to ensure they are proportionate and effective, rather than prematurely imposed.” - Rebalance Earth Venture Limited

“SIFT would like to highlight that there is no need for new legislation to address this shortcoming: restoration sites can be protected via licence derogations on fishing vessel licences, allowing for timely, receptive measures to protect new and existing restoration efforts as and when they need it.” - The Sustainable Inshore Fisheries Trust

Scottish Sea Farms, Salmon Scotland, Thistle Wind Partners and The British Association for Shooting and Conservation highlighted the need to consider how any protection measures may impact other marine users.

Related to this, some respondents commented on the action to “Encourage early engagement with local communities and other sea users to consider voluntary arrangements, for example codes of conduct”. Respondents from the fisheries sector and community groups were more likely to comment on this theme. Only two individuals commented on a code of conduct, one of whom suggested “community-initiated codes of conduct with enforcement teeth in appropriate local contexts”.

“Open and inclusive dialogue with all stakeholder groups will be essential to building trust and ensuring the plan's long-term success. If undertaken effectively, such engagement may reduce the need for additional legislative measures to protect restoration areas, with agreed voluntary codes of practice and collaborative management frameworks potentially delivering the same outcomes more flexibly and efficiently.” – Individual

Other respondents commented on the importance of early engagement with other stakeholders when considering co-locating restoration with other activities. Scottish Fishermen's Federation stressed the need to ensure engagement is not a “tick-box exercise”. It was noted that harbour authorities should be included in any engagement.

“Whilst we support the principle of marine nature restoration projects, there is also a need to be mindful of how busy our marine waters are and of the variety of uses already established around Shetland, including recreation, shipping, ports and harbour operations, cables, pipelines, renewables, aquaculture and fishing. The latter in particular already feel increasingly squeezed from their historical fishing areas by marine developments and nature conservation designations. Meaningful engagement and consultation with these groups and industries, particularly in relation to any use of legislation to protect restoration projects, is therefore vital.” - Shetland Islands Council

“The co-location of restoration with compatible economic activities—such as seaweed or shellfish farming, recreational activities, and energy generation—offers a number of opportunities and synergies, and this should be strongly encouraged. However, there is a need to recognise that there may be a trade-off for the co-located activities to ensure that the restoration objectives are achieved. Where such trade-offs are identified, mechanisms need to be put in place to ensure the co-located activities are still economically and socially viable. It would be useful to create exemplar projects of such co-location, which can be used as a template for future projects, allowing for rapid scaling.” - The Scottish Association for Marine Science

Some respondents commented on the action “Include policies in NMP2 to support active restoration,” with most making brief, supportive comments. However, a few respondents disagreed with this approach, including the Scottish Fishermen's Federation and others in the fisheries sector. These organisations highlight the existing complexity of NMP2 and express the view that NMP2’s existing links to the biodiversity strategy should be sufficient to cover restoration.

“Scottish Water would also welcome supporting policies within the updated NMP2 which will clearly outline any requirements for biodiversity enhancements, including potential restoration activities.” – Scottish Water

Only a small number of respondents made a comment related to the action “Set out clear monitoring requirements, as well as procedures for cases where restoration is not successful”. Two respondents emphasised the need to ensure that monitoring is proportionate and does not impose a burden on community groups or volunteers. The Scottish Fishermen's Federation made the following observation:

“The geographical spread monitoring is also necessary to consider potential impacts on the increasing spatial squeeze issue which in turn might trigger problem that could lead to displacement of other activities, triggering environmental and socio-economic consequences that would outweigh the benefits of the restoration projects… It is extremely important to find ways of documenting path to success or failure and regularly benchmarking our understanding of these practices while we learn how to do it.” - The Scottish Fishermen's Federation

Other themes

As with other themes, a few respondents were critical of the plan’s focus on active restoration and called for greater consideration of passive restoration. This is covered in Chapter 7. However, in relation to the regulatory environment, these respondents noted that the measures suggested in the plan may only be successful if there is accompanying regulation to manage pressure in areas where active restoration is taking place, that NMP2 should include pressure management and passive restoration when considering restoration, and that information sharing should also include data about passive restoration.

Two organisations, while expressing support for Theme 2, called for greater clarity than is provided in the plan.