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					                                                                              EARL/S2/07/1/1



                         EDINBURGH AIRPORT RAIL LINK BILL

WRITTEN RESPONSE FROM SCOTTISH NATURAL HERITAGE

EUROPEAN PROTECTED SPECIES

I am writing to provide further written advice to the Scottish Parliament regarding European
Protected Species and the implication of the Habitats Directive as requested in your letter of
30th November.

Background

Since our initial comments on the Bill, as detailed in our letter of 15 May 2006, SNH have
been working alongside the promoters and their advisers on various aspects relating to the
natural heritage, including the discussion of adequate mitigation measures.

As part of this further dialogue we have received and commented on an otter protection
plan, Draft Otter Protection Plan – October 2006, (non public version), as well as the
information package dated 20 December, sent to the Committee by the Promoter in
response to the Committee’s letter dated 30 November 2006.

We have now had a chance to review this information and can provide the following advice
to the Committee.

European Protected Species

There are three species likely to be affected by the EARL project - otter, bat species and
great crested newts. These species are listed in Schedule 2 of the Habitats Regulations.

Where it is proposed to carry out works which will affect European Protected Species or
their shelter / breeding places, whether or not they are present in these refuges, a licence is
required from the licensing authority, in this case the Scottish Executive.

Otter
As indicated above, SNH has received and commented on a draft otter protection plan. A
copy of our response is attached for your information. Due to the proposed construction
works, it has been identified that a licence will be required for works affecting otters
because of:

   1. Potential loss of a resting site;
   2. Disturbance of active holts and resting areas along the Gogar Burn due to diversions
      to the burn itself and also the construction of the station and tracks;
   3. Potential closure of an active holt.
      (as described in sections 4.4.1 and 4.4.2 within the Draft Otter Protection Plan)

With regard to the tests that require to be satisfied under Regulation 44 of the Habitats
Directive, the Promoters have responded to the Committee with information regarding Tests
1 and 2.
With regard to the 3rd Test - Regulation 44(3)(b) of the Conservation (Natural Habitats &c.)
Regulations 1994, on which SNH will be asked to advise, states that a licence cannot be
issued unless the licensing authority (in this case the Scottish Executive) is satisfied that the
action proposed “will not be detrimental to the maintenance of the population of the species
concerned at a favourable conservation status in their natural range”.

Article 1(i) of the EC Habitats Directive provides a definition of Favourable Conservation
Status (FCS) for species. This states that the conservation status will be taken as ‘favourable’
when:

       •   Population dynamics data on the species concerned indicate that it is maintaining
           itself on a long term basis as a viable component of its natural habitats, and

       •   The natural range of the species is neither being reduced nor is likely to be reduced
           for the foreseeable future, and

       •   There is, and will probably continue to be, a sufficiently large habitat to maintain its
           population on a long-term basis.

In this particular case, the proposal will be assessed in light of the favourable conservation
status of otters based on the following:

       •   Consideration of the range and population trends of otters within the Lothians and
           Scotland, as well as consideration of the short and longer term impacts arising from
           the construction and operation of the EARL proposal.

From our assessment of the proposals, SNH is satisfied that this test can be satisfied, subject
to appropriate mitigation and enforcement of this mitigation being assured.

SNH would therefore wish to see the Promoter’s assurances, as provided in their response in
paragraphs 50-55, fully incorporated into the Bill during the Consideration Stage at Phase 1, to
ensure delivery of the environmental mitigation and as detailed in Annex B to their response.
Please see below our detailed consideration of the proposed amendments to the Bill.

Bat Species

Currently, no bat roosts have been identified during survey work. We are, therefore, satisfied
that currently no disturbance is likely and therefore no licences will be required.

If, however, prior to construction further survey work indicates presence of bat roosts, licence
applications may be required as identified in the current version of the Code of Construction
Practice (CoCP). The CoCP may then require to be amended to reflect any licence
conditions. including mitigation works.

Great Crested Newts

Similarly, survey work carried out at Dalmeny Ponds did not record presence of great
crested newts at Dalmeny Ponds, although historical records do indicate they have been
present within the last decade. Unfortunately survey work for great crested newts can be
notoriously difficult in determining presence or absence. The promoters have, therefore,
adopted a precautionary approach, and have identified relevant mitigation measures within
the ES. These mitigation measures are not, however, referred to within the CoCP. We



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would, therefore, wish a paragraph to be included within section 10 of the CoCP regarding
great crested newts, similar to section 10.2.4 with regard to bats.

CoCP and other related documents

The condition of any licensing requirement will be separate and additional to any Royal
Assent of the Bill. In order to link the licensing requirements to the Bill, the Code Of
Construction Practice (CoCP) needs to provide a clear detailed statement as to how any
licensing conditions will be:

   •   Identified
   •   implemented
   •   enforced and
   •   monitored.

Such a statement should stipulate how any such licence requirements will be adhered to,
clearly identify a management and reporting structure to ensure both Scottish Executive as
Licensing Authority and SNH are informed of progress, and identify where further advice
can be sought in light of any unforeseen circumstances.

Identification and Implementation of EPS Considerations

In order to ensure that the EPS issues are dealt with appropriately, we strongly recommend
that a section be added to the CoCP which details:

   •   that sites where EPS species are present are identified and marked on a set of
       engineering drawings, but exact locations should be retained in a confidential annex
       available to the designer etc. All drawing etc. should be checked and confirmed by
       an Environmental Clerk of Works.

   •   The need for all contractors and subcontractors to be made aware of any licensing
       conditions

Mitigation and Enforcement

The Promoter has provided proposed amendments to Section 46 of the Bill relating to the
Mitigation of Environmental Impacts. It will be for the Parliament, as Competent Authority
under the Habitats Regulations, to determine whether such amendments to the Bill,
combined with the related documents such as the CoCP and otter protection plan, provide
the necessary protection to protected species.

The amendments to the Bill, which are based on amendments to both the Waverley
Railway Act and Glasgow Airport Rail Link Bill, provide reassurance to SNH that
environmental mitigation and its enforcement will be addressed in the Bill and any
subsequent Royal Assent.

Iain Rennick
Area Manager
Forth and Borders
18 January 2007




                                             3
Richard Fisher
ERM
Norloch House
36 King’s Stables Road                                                     08 December 2006
Edinburgh
EH1 2EU

 Dear Richard

 Draft Otter Mitigation Plan

 Thank you for your consultation and recent meeting to discuss the draft otter and badger mitigation plans and
 European Protected Species (EPS) procedures. The following comments relate to the otter mitigation plan
 and EPS procedures.

 General comments
 EPS procedures
 Scottish Natural Heritage’s role is twofold with regard to otter as an EPS:
 - to advise the Scottish Parliament of their duties to consider EPS prior to any Royal Assent being given to
    the Bill and
 - to advise the Scottish Executive Licensing Team with regard to the 3rd test (Favourable Conservation
    Status) of otters if a licence is applied for.

 With regard EPS procedures, the Promotor will have to satisfy the Scottish Parliament that the 3 tests (as
 defined in the Habitat Regulations) can be met in order to facilitate the granting of an Executive licence.

 First 2 tests: overriding public interest and no satisfactory alternatives. The Promotor will have to supply
 information to the Parliament and they will need to be satisfied by the information supplied. They require
 enough information to justify the need for the project and consideration of alternatives.

 3rd test – Favourable Conservation Status of EPS. It is likely that with the level of mitigation proposed for
 otters in EARL, there will be no detrimental impact on FCS. However we will need to be assured that this
 mitigation will be implemented, as discussed below.

 Mitigation and Code of Construction Practice
 It should be established and defined much more clearly as to how any mitigation proposed will be
 implemented, enforced and monitored. We would therefore wish to see the Code of Construction Practice
 (CoCP) linking into the otter/EPS mitigation proposals with a commitment to their implementation within the
 Bill through the CoCP. The CoCP will also need to take account of any conditions imposed by the Scottish
 Parliament and any subsequent licence granted by the Executive, with clear direction as to how these will be
 implemented, enforced and monitored as part of the CoCP process.

 Specific Comments on the Otter Mitigation Plan
 Section 3: Surveys / Section 4: Predicted Impacts
 There is little evaluation of impacts arising from severance of favoured routes during construction. This
 impact will also require to be addressed in Section 4. Due to the nature of the works, the Controlled Activities
 Regulations (CAR) will apply. Liaison with SEPA should ensure that any works requiring CAR licences are
 compatible with otter/EPS mitigation proposals.

 Predicted Impacts
 The discussion on predicted impacts is somewhat vague in parts, due to the fact that detailed design
 knowledge is not yet available. For example, that work will be ‘extremely short lived’. This is not quantifiable



                                                        4
and would be better described ‘of short duration’ with a timescale provided, such as ‘less than a month’. Such
vague descriptions do not provide sufficient information to assess the significance of impacts.

The report states that mitigation measures will be implemented, but does not clarify how they will be
implemented. Again, there needs to be greater links made to the CoCP, as discussed above.

It is noted that the shield design for the Gogarburn has already been discussed with SEPA etc. It should be
ensured that mitigation measures which affect EPS as well as relating to CAR are agreed with both SEPA and
SNH.

Mitigation
We welcome the proposed mitigation measures that are indicated in the Plan. Most of the proposals are at a
preliminary stage and therefore this section should be seen as an iterative process, until the licence application
is submitted and approved. There are some points worth noting:
- Otter holts should only be programmed for removal if there is a real threat to them, rather than just a threat
    of disturbance.
- It may be good practice to build artificial holts elsewhere to provide shelter whilst others are being
    disturbed, this is particularly important given that the river is likely to be made even less ‘natural’ as a
    result of works around the airport.
- Awareness training for staff will need to be carefully implemented and monitored.
- An appropriately qualified otter specialist will need to be employed to advise on mitigation measures as the
    design develops. SNH can check and advise further on these proposals.
- There will be a requirement for an Ecological Clerk of Works to be employed during the licence
    application, design and construction stages of the development.

Operation Mitigation
With regard to the last bullet point on recreation, it is worth noting the requirements of the Land Reform Act
and Scottish Outdoor Access Code. Current recreational use along the river systems should be considered and
taken into account in the planning and operational stages of the development.

I hope these comments are helpful to you. Should you require any further information, do not hesitate to
contact us at the above address.


Yours sincerely



Carolyn Clark
Area Officer
Edinburgh




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