Consultation on Amending the Environmental Liability (Scotland) Regulations 2009 in Scotland to Transpose Article 38 of the Offshore Safety Directive 2013 - Consultation Analysis

5. Question 2

20. We asked, "Do you have any views on the likelihood of potential damage in marine waters affecting their environmental status as defined under the MSFD?"

21. You Said;

22. Oil and Gas UK said, "This question is very difficult to answer and appears to rest upon the definition of 'environmental damage' and how the enforcing authority will establish if damage is 'environmental damage' in marine waters.

The ELD defines 'damage' as a measurable adverse change in a natural resource or measurable impairment of a natural resource service which may occur directly or indirectly. (A 'natural resource' means protected species and habitats, water and land).

However, for the 'damage' to be 'environmental damage' the ELD states that there must be significant adverse effects - to the conservation status of protected species or habitats covered by the Habitats Directive, or to the ecological, chemical or quantitative status of water bodies covered by the Water Framework Directive (out to 1nm).

Article 38 extends the definition to damage that significantly adversely affects the environmental status of marine waters covered by the Marine Strategy Framework Directive. Note that 'waters' includes the water column, seabed and subsoil and that 'environmental status' is determined by the indicators of Good Environmental Status, as defined in MSFD.

Following a release of contamination to the marine environment and after the operator has notified the enforcing authority, there is a requirement for the enforcing authority to establish whether environmental damage has occurred i.e. that there has been a significant adverse change. The first is to determine the baseline against which an adverse change could be measured. In theory, baselines exist for European protected sites, nearshore water bodies and through the initial assessments made against the MSFD indicators. However, the scale of natural variability of the relevant indicators over time will require several years of monitoring to fully assess. This is important because the ELD specifically states that 'negative variations that are smaller than natural fluctuations' do not have to be classified as significant damage.

The MSFD GES indicators have been established for regional sea areas and detecting a measurable adverse change, attributable to a contamination event, over such an area could be difficult."

23. Scottish Environment Protection Agency said, " SEPA agrees with the conclusions in the consultation document that on the basis of experience to date, and the extent of damage required to impact environmental status under MSFD, there is a low likelihood of such damage.

Water damage, as defined in the Environmental Liability (Scotland) Regulations 2009 ("the regulations") is restricted to activities listed in Schedule 1 to the regulations. Various industries have the potential to cause damage in the marine environment, should failures or accidents occur. These include: fisheries, shipping, oil and gas (including unconventional gas and underground coal gasification), aquaculture, engineering, dredging and dumping. Some of these activities may fall outwith the scope of Schedule 1 to the regulations."

24. Scottish Environment Link said, " SE LINK have welcomed the measures that Marine Scotland (the Scottish Government) have put in place to help Scotland achieve GES by 2020. As the proposed amendments to the Regulations are preventative in nature, it is difficult to assess how they will actively contribute to the GES objectives under the MSFD. It could be argued that the amendments will help to stop Scotland from not achieving GES."

25. The individual said, "What I felt is that water should be protected against any means of pollution because its usefulness beyond what we see to it."

26. We did;

27. The Scottish Government agrees that an incident would need to be catastrophic to trigger action under the Regulations.