2014 Consultation on the management of inshore Special Areas of Conservation and Marine Protected Areas - Consultation analysis report

6. Broad Issues

6.1. Article 6 of The EU Habitats Directive

6.1.1. You Said

6.1.1.1. A number of environmentally focused responders stated for each Special Area of Conservation( SAC) that an appropriate Assessment of the management measures must be carried out. Their view was that this was a legal necessity conferred by Article 6(3) of the EU Habitats Directive.

6.1.1.2. The "Sweetman" ruling from the European Court of Justice ( ECJ) was also quoted. In the view of responders this ruling stipulated that site integrity of an SAC involves;

'the lasting preservation of the constitutive characteristics of the site concerned that are connected to the presence of a natural habitat type whose preservation was the objective justifying the designation of that site...'.

"In other words, characteristics of the site connected to the designated features, and not just the designated features themselves, should also be preserved. Or, in short, the ecological importance of a site, whilst designated for specific features, is greater as a functioning whole than as merely the sum of its parts."

6.1.2. We Did

6.1.2.1. The text of Article 6(3) is very clear;

"Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public." (emphasis added)

6.1.2.2. It is the Scottish Government's view that these proposals are "directly connected with or necessary to the management of the site". Therefore Article 6(3) does not apply to the proposed prohibitive management measures.

6.1.2.3. The ECJ ruled in Sweetman that;

"it should be inferred that in order for the integrity of a site as a natural habitat not to be adversely affected for the purposes of the second sentence of Article 6(3) of the Habitats Directive the site needs to be preserved at a favourable conservation status; this entails, as the Advocate General has observed in points 54 to 56 of her Opinion, the lasting preservation of the constitutive characteristics of the site concerned that are connected to the presence of a natural habitat type whose preservation was the objective justifying the designation of that site in the list of the SCIs, in accordance with the directive."

In those paragraphs of her Opinion the Advocate General examined the meaning of the expression "integrity" of the site. She stated that "it is the essential unity of the site that is relevant. To put it another way, the notion of 'integrity' must be understood as referring to the continued wholeness and soundness of the constitutive characteristics of the site concerned…..It follows that the constitutive characteristics of the site that will be relevant are those in respect of which the site was designated and their associated conservation objectives."

As the Advocate General noted, at point 57, the effect on the integrity of the site must be 'adverse'. The Appropriate Assessment may determine that the effect of a plan or project on the site will be neutral, or even beneficial.

"Article 6(3) of the Habitats Directive must be interpreted as meaning that a plan or project not directly connected with or necessary to the management of a site will adversely affect the integrity of that site if it is liable to prevent the lasting preservation of the constitutive characteristics of the site that are connected to the presence of a priority natural habitat whose conservation was the objective justifying the designation of the site in the list of sites of Community importance, in accordance with the directive. The precautionary principle should be applied for the purposes of that appraisal. (emphasis added)

Temporary loss of amenity capable of being fully undone would be allowed; permanent destruction of part of habitat in relation to whose existence the site was designated is not allowed";

6.1.2.4. The Sweetman ruling relates to the meaning of "site integrity". It is clear from the judgment that adverse effect on site integrity is directly related to the nature of the impact; any permanent loss/ impact upon priority natural habitats would be an adverse effect on the integrity of a site. However temporary effects are acceptable. The test of site integrity applies under article 6(3) of the EU Habitats Directive. We have concluded that article 6(3) does not apply in this case of implementing new management measures. However, it would apply to other fisheries related decisions.

6.2. Section 83 of The Marine (Scotland) Act 2010

6.2.1. You Said

6.2.1.1. Some responders said they had concerns about the rationale for feature- rather than site-led protection. They stated that;

"Paragraph 83(b)(iv) of the Marine (Scotland) Act 2010 requires any public authority to make management decisions based on:

'any ecological…process on which the conservation of any protected feature in a Nature Conservation MPA…is (wholly or in part) dependent'.

Paragraph 83(10) also states that:

'…"damage" includes the prevention of an improvement.

Whilst the primary legal consideration under Paragraph 83(b)(iv) is for the designated nc MPAs to meet their conservation objectives, these provisions should be fundamental and prominent considerations when designing appropriate management measures for the conservation and recovery of features within a site. Article 83(10) signifies a legal requirement to ensure that protected features have the scope to increase in population numbers, extent and/or overall ecological health, which is clearly pertinent to sites with a conservation objective of 'recover'. Furthermore we think this requirement also applies to sites where the conservation objective is 'conserve' or where features are deemed to be of poor conservation status (as assessed by authorities such as the IUCN Red List, the OSPAR list of Threatened and Declining Species and Habitats, or in peer reviewed literature) as, even where this is the case, there still needs to be the possibility of improvement."

6.2.2. We Did

6.2.2.1. Section 83 of the Marine (Scotland) Act 2010 places duties on public authorities where they have the function of determining an application for the doing of an act. These management proposals are prohibiting activities.

6.2.2.2. In s83(10) some terms are given definitions for use in s83 of the Marine (Scotland) Act 2010 only. These include "damage". The interpretation given can only be applied where the word "damage" has been used in s83. The word "damage" is used twice - in s83(4)(b)(ii) and (iii). These only come into play where a public authority intends to grant authorisation for an act which has a significant risk of hindering the achievement of the conservation objectives. This would be used to ensure that the public benefit of the act outweighed the risk of "damage". It would also be used to ensure that the mitigation measures were of equivalent environmental benefit to the "damage".

6.2.2.3. It is also the view of the Scottish Government that the management proposals do provide scope for improvement of all the protected habitats and species. This is irrespective of the conservation objectives.

6.3. The Environmental Report

6.3.1. You Said

6.3.1.1. A recurring theme in comments across multiple sites was regarding the late publication of the environmental report. Responders repeatedly stated that they had not had enough time to consider it.

6.3.2. We Did

6.3.2.1. The Scottish Government acknowledges that the Environmental Report was not published on the day the consultation launched. If fact it did not publish until 2 weeks later. However we are of the view that 10 weeks provided sufficient time for it to be considered.

6.4. Creel Fishing

6.4.1. You Said

6.4.1.1. A wide range of comments were made regarding creel fishing spanning many of the protected areas. A number of themes were identified;

• The economic importance of creel fishing in some of the protected areas.
• The need for further research into the effects of creeling.
• Some wanted to see pre-emptive creel management measures for protected areas.
• Others raised concerns about the number of creels in use overall.
  

6.4.2. We Did

6.4.2.1. All of these themes are noted. The Scottish Government intends to only implement creel management measures in discrete parts of 4 of the protected areas at this time. This is generally for the most sensitive habitats. We don't accept the need for pre-emptive measures.

6.4.2.2. We acknowledge the need for further research into the effects of creel fishing. We will seek opportunities to undertake this in future, as well considering the results of research being undertaken elsewhere.

6.4.2.3. We would also like to consider with stakeholders what is perceived to be a sensible level of creel fishing in given areas. This would be used to inform future management plan consideration. To begin this dialogue we have chosen 3 protected areas for differing reasons;

Sanday SAC - Some of the consultation responses made it clear how vital the creel fishery was to the local communities there. We would like to work with those communities to ensure that the vital economic importance of that fishery is maintained.

South Arran MPA - There is a lot of local interest in community participation in management planning. Management measures for this site will create an area of burrowed mud that is mobile gear free seven days per week. We would like to work with stakeholders to ensure that if a nephrops creel fishery is established it is developed in a sustainable manner.

Wester Ross MPA - There is also a lot of local interest in community participation in management planning. There has also been concern raised by stakeholders about the number of creels in this area.

6.5. Benefits

6.5.1. You said

6.5.1.1. There were a number of themes relating to benefits of the management measures which were expressed. These were made by a broad range of stakeholders covering many of the sites. These themes were;

• That the consultation document did not contain any information about the economic benefits of the measures.
• That the consultation document was too focused on the potential economic costs to the fishing industry.
• That the "Assessing Options for Change" report made it imperative to ban all mobile gear from Marine Protected Areas.

6.5.2. We Did

6.5.2.1. We acknowledge that there was no value attached to the benefits in the consultation document. These can be difficult to quantify. However the Business and Regulatory Impact Assessments that will accompany the Statutory Instruments will attempt some quantifications.

6.5.2.2. The reason information relating to fishing was included was to estimate the hours / days of displaced effort that could occur. In doing so cost estimates were also produced and therefore included in the documentation. The amount of fishing effort that would be displaced is the primary concern because that activity is likely to be undertaken elsewhere. This can lead to negative environmental effects. However if the activity is displaced then the economic impact will not be as high as estimated. This is because the displaced activity takes place elsewhere and an economic return realised.

6.5.2.3. The methodology used in the "Assessing Options for Change" report has predicted considerable economic benefit from having a 1 mile or 3 mile limit. These benefits were in the long term with the fishing industry bearing the costs in the short term. However there has been no Strategic Environmental Assessment of this to ascertain environmental effects of implementing such a limit. The Environmental Report undertaken for the management measures in this consultation cautioned against 100% displacement from some of the protected areas. Nevertheless the management measures we intend to implement should facilitate some limited scale proofing of the outputs of the "Assessing Options for Change" report to begin.