Marine licensing: applicant guidance

Marine licensing in areas beyond national jurisdiction

This guidance will help those carrying out planned activity in areas beyond national jurisdiction (ABNJ) to determine whether a marine licence is required or whether a marine licence exemption applies. Areas beyond national jurisdiction (ABNJ) means the high seas and the Area, which together include:

• the water column beyond the Exclusive Economic Zone (EEZ), or beyond the territorial sea where no EEZ has been declared; and
• the seabed which lies beyond the limits of the continental shelf established in conformity with Article 76 of the United Nations Convention on the Law of the Sea (UNCLOS)

Introduction

The Biodiversity Beyond National Jurisdiction (BBNJ) Agreement is an international treaty developed under UNCLOS. The Agreement introduces new international requirements to ensure that activities carried out in ABNJ are regulated and environmentally assessed.

Part IV of the Agreement sets out the objectives in relation to Environmental Impact Assessments (EIAs), including the need to establish processes, thresholds and other requirements for conducting and reporting assessments. It ensures that relevant activities are assessed and conducted to prevent, mitigate and manage significant adverse impacts for the purpose of protecting and preserving the marine environment. It supports the consideration of cumulative impacts and impacts in areas within national jurisdiction and provides for strategic environmental assessments. It also aims to achieve coherent EIA framework for activities in ABNJ and build and strengthen the capacity of Parties, that have consented to be bound by the Agreement, to prepare, conduct and evaluate EIAs and strategic environmental assessments.

To implement the EIA requirements of the BBNJ Agreement, amendments were made to the Marine Works (Environmental Impact Assessment) (Scotland) Regulations 2017 by the Biodiversity Beyond National Jurisdiction Act 2026. In order to operationalise the EIA requirements, The Marine Licensing (Miscellaneous Amendment) (Scotland) Order 2026 was also made to amend the Marine (Scotland) Act 2010, the Marine Licensing (Register of Licensing Information) (Scotland) Regulations 2011 and the Marine Licensing (Exempted Activities) (Scottish Inshore Region) Order 2011.

Scottish Person

Regulation of planned activities in scope of the BBNJ requirements is carried out by MD-LOT (on behalf of the Scottish Ministers) where those activities are carried on by or controlled by a “Scottish person”.

 A person is a “Scottish person” if they are:

i) an individual who is habitually resident in Scotland, or

ii) a person that is not an individual, where that person:
    (A) has its registered office in Scotland
    (B) if it has no registered office, has its place of incorporation in Scotland or is otherwise formed under the law of Scotland

Controlled means managing, directing, causing, permitting or otherwise being responsible for the carrying out of the activity and includes doing this directly or through causing or permitting any other person or organisation to carry on that activity.

Environmental impact assessment (EIA)

Authorisation of planned activities in ABNJ rests with the State exercising jurisdiction or control over the activity and must be based on a full consideration of any EIA, with activities authorised only where reasonable efforts have been made to prevent significant adverse impacts on the marine environment.

If your activity is above the de minimis threshold, you must apply to MD-LOT for an EIA screening opinion. The de minimis threshold is where a planned activity may have more than a minor or transitory effect on the marine environment, or the effects are unknown or poorly understood. Information on how to request a screening opinion from MD-LOT is available. The screening opinion will determine whether an EIA is required.  An EIA is required where there are reasonable grounds for believing that the planned activity may cause substantial pollution of, or significant and harmful changes to, the marine environment. Following the outcome of the screening process, MD-LOT will advise whether an EIA is required and whether you need to apply for a marine licence.

Where it appears to MD-LOT that an activity is not expected to have more than a minor or transitory effect on the marine environment (de minimis threshold), MD-LOT may not need to adopt an EIA screening opinion. Where this conclusion is reached, MD-LOT will inform you that the proposed activity does not require an EIA.

Where an EIA screening opinion concludes that a planned activity is not an EIA project, it must also contain provision stating whether the Scottish Ministers consider that the works may have more than a minor or transitory effect on the marine environment, or whether their effects are unknown or poorly understood.

Licensable marine activities

Activities carried on or controlled by a Scottish person in ABNJ that may require a marine licence include:

• depositing any substance or object in the sea or under the seabed
• scuttling any vessel or floating container at sea
• construction, alteration or improvement of any works in or over the sea or on or under the seabed
• using a vessel, aircraft, marine structure or floating container to remove any substance or object from the seabed
• carrying out any form of dredging (whether or not involving the removal of any material from the sea or seabed)
• depositing or using any explosive substance or article in the sea or on or under the seabed
• incinerating any substance or object at sea

Activities carried on outside the UK marine area that involve loading, towing or propelling as detailed below, including those activities carried on or from a British vessel, a British aircraft, a British marine structure, or a container floating in the sea (if the deposit from the floating container is controlled from a British vessel, British aircraft or British marine structure) also require a marine licence from MD-LOT on behalf of Scottish Ministers:

• depositing any substance or object anywhere in the sea or on or under the seabed from a vehicle, vessel, aircraft, marine structure or floating container which was loaded with the substance or object either in Scotland, or in the Scottish marine area
• scuttling any vessel or floating container anywhere at sea, if the vessel or container has been towed or propelled for the purpose of that scuttling either from Scotland, or from the Scottish marine area (except where the towing or propelling began outside that area)
• loading a vehicle, vessel, marine structure or floating container in Scotland or in the Scottish marine area with any substance or object for incineration anywhere at sea

The Marine Management Organisation (MMO) regulates activities in ABNJ under the control of a “United Kingdom person”. It also regulates those activities carried on by a Scottish Person where loading occurs from the rest of the UK/UK marine area (i.e. not in Scotland or the Scottish marine area). See relevant MMO guidance for definitions and details of activities regulated by the MMO.

Exemptions

In certain circumstances, activities in ABNJ may be exempt from the requirement to obtain a marine licence.

Activities in ABNJ covered by the exemptions in the Marine Licensing (Exempted Activities) (Scottish Inshore Region) Order 2011 do not require a marine licence. This includes the activities and circumstances described below.

Subsea cables in ABNJ

Activities involving submarine cable laying, maintaining (including repair) or removal in ABNJ are exempt from marine licensing, unless the cable is constructed or used in connection with:

• the exploration of the UK sector of the continental shelf
• the exploitation of the natural resources within that sector
• the operation of artificial islands, installations and structures under the jurisdiction of the United Kingdom
• the prevention, reduction or control of pollution from pipelines

Depositing or using explosive substances or articles as part of cable laying activity is not exempt and requires a marine licence where that deposit or use falls within item 8 or 16 of section 21(1) of the Marine (Scotland) Act 2010.

Environmental impact assessments

An activity is exempt from the requirement for a marine licence where it falls within item 11, 12, 13, 14, 15, 16 or 17 of section 21(1) of the Marine (Scotland) Act 2010 and in respect of which:

• a screening opinion was adopted under regulation 9(2A) of the Marine Works (Environmental Impact Assessment) (Scotland) Regulations 2017 that states that the BBNJ works are not an EIA project, or
• a notice was given under regulation 12(2B) of those Regulations