Section 36 Consent application for the Berwick Bank Offshore Wind Farm Development submission queries: EIR release

Information requested

• A Section 36 Consent application for the Berwick Bank Offshore Wind Farm Development was submitted to Marine Scotland by SSE Renewables on the 9th December 2022. Please provide information to explain, in general terms, the consenting process for an application of this type. 
• Please provide information on whether or not there was the opportunity, as part of the consenting process, for the public to officially ‘comment’ on this major offshore wind farm development project.
• Please confirm whether Scottish Government Ministers have the final say in the consenting process of the Berwick Bank offshore wind farm project and which Minister would have this responsibility.
• Part of the proposed development area of the Berwick Bank offshore wind farm overlaps with the Firth of Forth Banks Complex Marine Protected Area. The western area of the proposed development overlaps with the ‘Scalp and Wee Bankie’ MPA and the south-eastern area overlaps with the ‘Berwick Bank’ MPA. Please provide guidance on whether offshore wind farms are permitted to be constructed in Scotland’s Marine Protected Areas under current Scottish Government policy/regulations.
• The Firth of Forth Banks Complex Marine Protected Area was first suggested as a Marine Protected Area in 2012 and was designated as a Nature Conservation MPA in 2014. In 2012 applications by Seagreen Alpha and Bravo were submitted to construct two offshore wind farms in the First of Forth Development Zone which were awarded consent by Scottish Government Ministers in 2014. The western side of Seagreen Alpha (and cable route zone) is located in the ‘Scalp Bank and Wee Bankie’ MPA (30 Wind Turbines). The eastern side of Seagreen Bravo is located in the ‘Montrose Bank’ MPA (15 Wind Turbines). The combined overlap amounts to 7.2% of the Nature Conservation MPA. Please provide information on what percentage of the Forth Banks Complex MPA would be taken up by the Berwick Bank offshore wind farm development if the project was given consent by Scottish Ministers to proceed in line with the currently submitted application.
• The number of wind turbines in the four wind farms already consented by Scottish Government Ministers (2014) in the Forth and Tay region is as follows; NnG - 54 turbines, Inch Cape - 72 turbines, Seagreen Alpha (75 consented) and Bravo (75 consented) wind farms combined 114 turbines. Therefore, there are currently 240 wind turbines ‘in progress’ in this area. The Berwick Bank windfarm development application is proposing a further 307 wind turbines. Please provide information to explain, in general terms, how the cumulative impact of offshore wind farm developments in this area will be taken into account in the Scottish Government’s decision-making process.
• The SSE Renewables Berwick Bank planning application includes a proposal to restrict access to the sandeel fishery in the area of the development as a compensatory measure for seabird loss due to wind turbine collisions and loss of feeding grounds. Please provide information on who is currently responsible for the decision to restrict access to the areas of sandeel fishing off the east coast of Scotland and also which fishing fleets are currently allowed access to fish for sandeels in this area.
• In June 2021 Willie Rennie MSP asked the Scottish Government ‘What action it will take in response to reports of Danish and Swedish boats intensively fishing for sandeels in the Firth of Forth’. The Cabinet Secretary for Rural Affairs Mairi Gougeon’s response at the time included, ‘given the importance of sand eel to the wider ecosystem and subsequent benefit in aiding the long-term sustainability and resilience of the North Sea, it remains an overarching and long held Scottish government position to not support fishing for sand eel or other industrial species in our waters. As such I’ve instructed my officials to consider what management measures can be put in place to manage activity in the most sustainable way possible’. Please provide information on what measures were considered and also provide information on what measures have been implemented by the Scottish Government since June 2021. 
• In 2000 the EU created a closed area of 20,000 sqkms extending from the north-east coast of Scotland to Northumberland which prevented sandeel fishing and kept the Danish sand eel fishing fleet away from sensitive seabed colonies. This was specifically introduced in an effort to protect the UK’s seabird population and included the sandbanks of Wee Bankie, Marr Bank and Berwick Bank off the Firth of Forth which is an area used extensively by sandeel-specialist seabirds. The International Council for the Exploration of the Sea (ICES) also provides regular advice about managing sandeel fisheries in the North Sea to prevent a decline in seabird population. In March 2023 DEFRA announced a consultation on proposed management measures for sandeel fishing within English waters, with the aim to reduce further negative impacts on important marine biodiversity. Presumably the Scottish Government considers the issue of restricting access to sandeel fisheries as one that is assessed as a separate issue and is not related in any way to the consenting process of the construction of an offshore wind farm development containing 307 wind turbines in the area of the outer Forth of Forth. Please provide information to confirm whether or not this is the case.
• Please provide information to confirm whether or not the Scottish Government has considered it acceptable that any proposal to restrict sandeel fishing in the area can be used by SSE Renewables as a mitigation measure for the loss of seabirds through wind turbine collisions and loss of feeding grounds in their Berwick Bank planning application, given that this decision is completely outwith their responsibilities.
• A ‘ScienceDirect’ Marine Environmental Research publication from December 2020, titled ‘Vulnerability of northern gannets to offshore wind farms; seasonal and sex-specific collision risk and demographic consequences’ provides an assessment of how the four offshore windfarms, which have already been granted consent, may affect the seabird population of the Bass Rock through collisions with turbines. From fieldwork carried out in the period 2015-19 the study concluded that ‘The predicted number of collisions across all wind farm sites within the ranges of birds from Bass Rock was 59 per month during the pre-hatching period and 452 per month during chick-rearing, with ~75% of predicted collisions being by females in each case. Combining the monthly totals for males and females from April to August, an estimated 1474 collisions would be predicted to occur each breeding season, with three times the number of collisions for females than for males’. Despite the risks to seabirds in the area, the Scottish Government provided consent in 2014 for these four offshore windfarms. Please prove information to describe in general terms how the current Scottish Government, in the consenting process of this development, will assess the impact the 307 wind turbines of the proposed Berwick Bank development would potentially have on Scotland’s seabirds and migrating birds.
• The proposed Berwick Bank wind farm site is located close to the boundary of the Outer Firth of Forth and St Andrews Bay Complex Special Protected Area (SPA), which is considered as ‘one of the largest and most diverse marine bird concentrations in Scotland’. The Forth and Tay area is also protected by numerous nature conservation designations including national Sites of Special Scientific Interest (SSSI) and international Special Protection Areas (SPA) under the European Birds Directive. The location of the proposed wind farm is also within the foraging range of SPAs designated for their importance to breeding seabirds. The Scottish Government has made a commitment to tackle the nature and climate emergencies together. The Scottish Government’s strategy to tackle the nature emergency as outlined in December 2022 listed some of the most urgent Priority Actions to put Scotland on tract for being nature positive by 2030. Priority for 2030 Point 4 Recover and protect vulnerable and important species included the following commitments, firstly to 'Manage existing and emerging pressures to improve the conservation status of seabirds' and also to 'Respond to pressures facing marine mammals to maintain or improve their conservation status'. As offshore wind developments pose a significant risk to seabirds and marine mammals, please outline how the actions and decision-making processes of the Scottish Government, in its consenting process of large-scale energy projects such as the Berwick Bank Application, show it is actually committed to tackling the nature emergency as stated in the policies it has outlined.

As the information you have requested is ‘environmental information’ for the purposes of the Environmental Information (Scotland) Regulations 2004 (EIRs), we are required to deal with your request under those Regulations. We are applying the exemption at section 39(2) of the Freedom of Information (Scotland) Act 2002 (FOISA), so that we do not also have to deal with your request under FOISA. This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption, because there is no public interest in dealing with the same request under two different regimes. This is essentially a technical point and has no material effect on the outcome of your request.

Response

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because exceptions under regulation 6(1)(b) - information already publicly available and regulation 10(5)(d) – confidentiality of proceedings, of the EIRs apply to that information. The reasons why these exceptions apply are explained in the Annex to this letter.

Summary information on the consenting process for offshore renewable energy applications can be found on our website here: https://www.gov.scot/publications/marine-licensing-and-consent-section-36- consent/

The applicant undertook a statutory pre-application consultation under the Marine Licensing (Pre- Application Consultation) (Scotland) Regulations 2013, prior to the submission of its marine licence applications. The pre-application consultation report produced by the applicant can be found on our website here: https://marine.gov.scot/node/23326. Further information on Pre-application consultation can be found on our website here: https://www.gov.scot/publications/marine-licensing-considerationsbefore- submitting-an-application/#pac

Public notices pertaining to the section 36 consent and marine licence applications were published in a number of publications in accordance with the requirements of the relevant section 36 consent, marine licensing and environmental impact assessment (EIA) legislation, with a public consultation period from 10 January to 21 February 2023. The Scottish Ministers may however consider representations received after this date. Public notices and a similar publication consultation period will run for any additional information submitted under the relevant EIA legislation.

Determination of section 36 consent applications for offshore renewable energy projects falls under the portfolio for the Minister for Energy. For any projects for which there is a negative assessment of the implications for a European site outside Scotland or a European offshore marine site outside the Scottish offshore region, the Scottish Ministers may agree to the project only after having been notified of the Secretary of State's agreement.

When determining a marine licence application (including those relating to offshore wind) under section 83 of the Marine (Scotland) Act 2010 / section 126 of the Marine and Coastal Access Act 2009, Public Authorities (including the Scottish Ministers) are required to consider whether a project is capable of affecting (other than insignificantly) a protected feature in an MPA. Authorisation may be granted to the activity if the Public Authority is satisfied that there is no significant risk of the activity hindering the achievement of the objectives of the site.

Information relating to the percentage of the Forth Banks Complex MPA that would be taken up by the Berwick Bank offshore wind farm development, if the project was given consent by Scottish Ministers to proceed in line with the currently submitted application, can be found in the Marine Protected Areas assessment undertaken by the applicant which can be found here: https://marine.gov.scot/sites/default/files/eor0762_1.pdf

The EIA submitted by the applicant in support of its application is required to include an assessment of the impacts to ornithological receptors, as well as an assessment of the cumulative effects with other existing and/or approved developments. Methodologies for assessment which reflect current methods and evidence and are based on the precautionary principle, are agreed prior to application in consultation with NatureScot, the statutory nature conservation body. The significance of ornithological and cumulative effects and extent to which these can be mitigated, alongside representation from statutory and nonstatutory consultees, is taken into consideration during the determination process.

In addition to the EIA, in-combination effects from other plans/projects and ornithological features of protected sites must be considered in relation to the Habitats Regulation Appraisal (HRA). If the HRA screening process concludes that the potential for likely significant effect on a site either alone or incombination with other plans or projects cannot be excluded, the Scottish Ministers undertake an appropriate assessment (AA). The AA assesses whether the proposed project will or will not adversely affect the integrity of the site(s) concerned, either alone or in-combination with other plans or projects and is supported by advice from NatureScot. In cases where adverse effects on integrity are concluded, the proposal may not proceed unless there are no alternative solutions, there are imperative reasons of overriding public interest and any necessary compensatory measures are taken to ensure that the overall coherence of the UK site network have been secured.

Fisheries management is a devolved matter, and each administration has competency for management of its own waters, including the current and any additional sandeel management measures. In 2021, Scottish Government officials worked closely with UK counterparts on a call for evidence (October- November 2021) to gather further evidence to better inform our considerations on future management for sandeel and Norway pout.

The Scottish Government recently announced its intention to undertake a public consultation in summer 2023 on potential measures to manage fishing for sandeel in Scottish waters. Such measures have the potential to provide wider ecosystem benefits to the marine environment, which could also deliver potential benefits to a range of species, as well as improving resilience to changes in the marine environment. The consultation also aligns with the overarching Scottish Government position, which is reflected in Scotland’s Fisheries Management Strategy, not to support fishing for sandeel in our waters.

Sandeel is a jointly managed stock between the UK and the EU. Under the Trade and Cooperation Agreement (TCA), and during a transition period lasting until 30 June 2026, the UK and the EU have full mutual access to their respective Exclusive Economic Zones (i.e., 12 – 200 nautical miles); as well as access to specific English, Welsh and Channel Island waters in the 6-12 nautical mile area. The UK Government, however, has not allocated a sandeel quota to UK vessels since 2021.

Applications are considered in the context of such policies and commitments, including the National Marine Plan, Offshore Wind Policy Statement, National Planning Framework 4 and climate change emissions reduction targets and also assessed in accordance with the relevant EIA and HRA legislation to understand impacts to environmental receptors and protected sites. A period of statutory consultation is undertaken on the application and associated assessments, including with NatureScot, to provide its view on the significance of effects on environmental receptors and impacts to protected sites.

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Annex - 202300357772

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