BRIEFING SCOTTISH MARINE BILL INQUIRY Headline Messages to Environment & Rural Affairs Committee: Any changes to marine management must actively encourage offshore renewables development as far as possible. This is on the basis of urgent needs to address climate change and energy security, as well as legally binding targets for European renewables development by 2020 as set out in the EU Renewable Energy Directive. It is absolutely vital that there is co-ordination in the approaches taken to new marine management systems by the Scottish and UK Governments. The offshore renewables industry has global reach, and developers are likely to be taking forward projects across the UK. Complexity in differing approaches North and South of the border could seriously halt the progress of the renewables industry in Scotland. There must be clear transition arrangements to the new marine management approach. Changes to marine planning, licensing and conservation could cause uncertainty and disruption to the offshore renewables industry at a critical time. Bill (As Introduced on 29th April) Contents Summary & Detailed SR Comments First Draft Part 1 Defines the “Scottish Marine Area” as Scottish Territorial Waters, including seabed & subsoil. Part 2 Gives Scottish Ministers the power to create a National Marine Plan for the Scottish Marine Area, makes no reference to any proposed similar powers for Scottish Ministers in the UK Renewable Energy Zone. SR wants to see clarity from the Bill as to how plans will be create in the UK REZ adjacent to Scotland. Gives Scottish Ministers the power to create Regional Marine Plans for areas termed „Scottish Marine Regions‟ States National Marine Plans and Regional Marine Plans will be plans which: o Set out Scottish Ministers‟ policies for sustainable development; and o Define themselves as National/Regional Marine Plans Allows for National Marine Plans to include economic/social/marine ecosystem objectives. SR would like to see National Marine Plans as being obligated to include such objectives. Gives Scottish Ministers power to designate „Scottish Marine Regions‟, only within the Scottish Marine Area. States that Regional Marine Plans must conform with National Marine Plans „unless relevant considerations indicate otherwise‟. SR would like to see compliance as an obligation, rather than an option. States that Ministers can withdraw a National Marine plan „where they consider it appropriate to do so‟. SR would like to see much more detail on the circumstances under which a Plan may be withdrawn, and the extent and manner in which it would be withdrawn and replaced. Allows Scottish Ministers to delegate regional plan-making functions to a public authority, or persons nominated by Scottish Ministers. States that „Scottish Ministers may from time to time give directions to the delegate with respect to the performance of their designated functions‟. States that public authorities must take any „authorisation or enforcement decision‟ in accordance with the appropriate marine spatial plans „unless relevant considerations indicate otherwise‟. SR would like to see more detail on when it would be allowable for public authorities to act outwith provisions in the plans. Provides for Scottish Ministers to „from time to time‟ publish a report on the effectiveness of the National/Regional Plan and then to decide whether or not to replace it. Says that the first report must be produced at most 5 years after the Plan‟s adoption, and successive reports no more than 5 years after the last report. Provides that any person „aggrieved‟ by a National or Regional Marine Plan can appeal to the Court of Session that the document is not within appropriate powers or has not been developed in line with correct procedure. Part 3 Makes dredging a licensable activity. Requires applications for marine licences to be „made in such form as Scottish Ministers determine‟ and „accompanied by such fee as may be determined by regulations made by Scottish Ministers‟. SR would like to see far more clarity in the Bill on the application procedure, and fees to be involved. Provides for Scottish Ministers to require applicants to permit investigations which may be necessary to help them decide an application, and to require applicants to reimburse expenses for doing so. States that in determining an application and its conditions, Scottish Ministers „must have regard to the need to: protect the environment; protect human health; prevent interference with legitimate uses of the sea‟ SR would like to see far more clarity on what might be meant by this last clause, and would also like to see climate change referenced the first. Provides that Scottish Ministers may suspend or revoke a licence if it appears that the licence should be suspended or revoked for any of the following reasons: „because of a change in circumstances relating to the environment or human health; because of increased scientific knowledge relating to either of those matters; in the interests of safety of navigation; for any other reason that appears to the Ministers to be relevant’. SR would like to see far more clarity about the circumstances under which a licence might be revoked, varied or suspended. States that where a s36 consent is required, Scottish ministers may decide that the s36 application and the Marine Licence application are considered together. States that where this is the case, and one of the applications has been made but not the other ‘the application that has been made is not to be considered until the other has also been made’. SR would like to ask members for their opinion on this provision. States that Scottish Ministers must make regulations which allow an applicant may appeal against a licensing decision, but does not actually include these regulations. SR would like to see the detail of these regulations in the Bill itself. Sets out provisions in relation to breaches of licence conditions, including compliance, remediation and stop notices. States that stop notices may be issued if there is risk of “serious harm to the environment, serious harm to human health, or serious interference with legitimate uses of the sea‟. SR would like far more clarity on the meaning of ‘interference with legitimate uses of the se’. States that Scottish Ministers may delegate certain marine licensing functions to either a public authority, or persons nominated by a public authority/Scottish Ministers. It appears that this could affect the marine licensing functions for renewable energy installations. SR strongly believes that decisions on Marine Licences for marine energy and offshore wind energy developments should be handled at a national level. Part 4 Provides Scottish Ministers the power to designate any area of the „Scottish Marine Protection Area‟ (the „Scottish Marine Area‟ but not including waters upstream of the fresh-water limit of estuarial waters) as a: o Nature Conservation Marine Protected Area o Demonstration & Research Marine Protected Area o Historic Marine Protected Area States the purposes for which each of these types of areas may be designated. Demonstration & Research Marine Protected Areas are to be designated if it is „desirable to do so‟ for the purposes of demonstrating/researching sustainable methods of marine management or exploitation. In designation Demonstration & Research Marine Protected Areas, Scottish Ministers may have regard to „any social or economic consequences of designation‟. This is not the case for Nature Conservation or Historic Marine Protected Areas. SR would like to see environmental, social and economic consequences of designation taken into account in the designation of Nature Conservation or Historic Marine Protected Areas. Gives Scottish Ministers the power to create an urgent designation where „Scottsih Ministers consider there is an urgent need to protect the area proposed to be designated‟. This would have the effect that the Ministers would not have to publish their intentions or consult on the decision. Such a designation could remain in force for 2 years. SR strongly disagrees with this section – it does not believe that urgent designations should be made without publication of the intent, and does not believe that they should be in place for 2 years without any sort of review. States that where a public authority has any function which could significantly affect features of any Marine Protected Area, then the authority must carry out its function so as to further the objectives of the Area, or hinders them to the least degree possible. If the function will significantly affect the features, then the public authority must notify Scottish Ministers and SNH. If the public authority‟s function in question is an authorisation function, then the public authority must wait 28 days after notifying Scottish Ministers/SNH before authorising the activity. Also, the authority must not grant authorisation for the act unless the applicant can prove the activity will not hinder the features of the Area, or if the applicant can prove: o There are no other means of proceeding with the act which would have lower impact; and o The public benefit of proceeding outweights the risk of „damage to the environment‟; and o (in relation to Nature Conservation/Demonstration & Research) agrees to undertake measures of equivalent environmental benefit to the damage which the act may cause. SR believes that this level of protection is too high.