Offshore wind energy - draft sectoral marine plan: habitat regulations appraisal

Appendix B: Review of Assessment Methodology

B.1 Background

The Scottish Government is currently developing a plan for future commercial offshore wind development in Scottish waters for the period up to 2050.  This new plan builds on the previous draft plan for offshore wind that was published in 2013.  The previous Sectoral Marine Plan considered the opportunities for Offshore Wind Energy generation (as well as Wave and Tidal Energy generation) in Scottish Waters^[356].  The new offshore wind plan also seeks to provide opportunities for deep water technologies which may become commercially viable over this time period^[357].

The geographical scope of this new ‘Sectoral Marine Plan for Offshore Wind Encompassing Deep Water Options’ covers Scottish Waters (0-200 nautical miles) This includes Scottish Territorial Waters (0-12 nautical miles) and the Scottish Marine Area (12-200 nautical miles) which is executively devolved to Scottish Ministers under the Marine and Coastal Access Act 2009.

This new plan will need to be accompanied by a Habitats Regulations Appraisal (HRA) process.  This process is required to assess the plan’s potential effects on international protected nature conservation sites.  For the first stage of the HRA work, a ’Pre-screening report’ was produced (Marine Scotland, 2018)^[358] and consulted upon.  This Pre-screening report set out the evidence base and the proposed methods that will be applied for the subsequent scoping and assessment stages of the HRA work.

In response to the consultation process, this brief report has now been produced as an intermediate stage between the completed pre-screening work and the scoping and assessment stages that are to follow.  It considers the consultation responses and highlights some minor methodological adjustments to the HRA process that will be made as a result.  It also identifies a number of priority considerations and clarifications that will be taken into account during the ongoing HRA process work.

This intermediate review has been prepared to ensure there a high-level clarity and auditability in the assessment process as this is an important requirement for strategic-level HRAs.  This report also considers the implications of recent EU and UK case-law judgements (reached during summer 2018) and how these should be taken into account for this HRA process.

B.1.1 Report Structure

This interim technical note is structured as follows:

• Section 1: Introduction;
• Section 2: Review of HRA Methods and Issues; and
• Section 3: References.

B.2 Review of HRA Methods and Issues

B.2.1 Pre-Screening Overview

The proposed methods for the HRA work are set out in the Pre-Screening which was completed in June 2018 (Marine Scotland, 2018).

The HRA methods presented in this report are based on available guidance and established best practice.  This best practice was developed over the course of multiple preceding plan-level HRAs (and the associated stakeholder and Steering Group discussions which accompanied them) that have been undertaken in Scotland and across the rest of the UK over the last decade.  These past HRAs are listed in Section 2.3 of the Pre-Screening report (Marine Scotland, 2018).

The HRA process will follow the 13-step process that is set out in the agreed SNH guidance for undertaking plan-level HRAs in Scotland^[359].  This process is shown in Figure B1.  From the consultation feedback (in particular views received from SNH) it will be appropriate to adhere to this sequential approach.

It is noted, however, that recent case-law judgements which were reached during 2018 will need to be considered.  These judgements relate to the way in which mitigation should be considered when seeking to make screening judgements under the HRA process.  The implications of these judgements are considered further in Section 2.3 of this report.

B.2.2 Plan-Level Mitigation and relationship to Project-Level HRA

The consultation responses from SNH and JNCC have highlighted separate but inter-related and important issues in respect of the anticipated Plan-Level Mitigation requirements and the relevance and role of Project-Level HRAs in this context.  In response to these comments it is important to confirm firstly (and specifically in response to the JNCC comments) that this plan level work will not be a substitute for the future requirements for HRAs to be undertaken for individual projects.  Such project-level HRA processes will still be required in accordance with the legislation and as recommended by JNCC this point will be made clear in the HRA documentation.

The application of future project-level HRAs, which will be prepared when there is greater certainty about development locations and details, will be vital for ensuring that there is no adverse effect on the integrity of designated sites.  Equally though (and in response to the comments raised by SNH as well as the lessons from past strategic marine HRAs prepared by the Marine Scotland) it is recognised that this plan, due to its scale and complexity, should not rely on the requirement for future HRAs at a project-level as a sole mechanism for being assured that the plan as a whole will not have an adverse effect on designated sites.

An important objective for this Plan-level HRA therefore will be to clarify these aspects and the role and mechanisms of future Plan-level mitigation and associated monitoring work and its relationship to project-level HRA responsibilities.  It is agreed, in particular, that because of the uncertainties associated with the plan (including the scale and location of future developments within the Areas of Search and the nature of the future technologies that will be used) it will not be possible to definitively conclude that there will be no adverse effect on site integrity (NAESI) from the plan.  Therefore, there will be a need for appropriate and meaningful mitigation measures to accompany the Plan with potentially different levels of mitigation required for different scales of development.

The plan-level mitigation measures are expected to include a phased process for implementing the Plan and the adoption of an ‘Iterative Plan Review’ (IPR) process (or bespoke variant of the same concept).  The development of such an IPR process would be in keeping with recommendations developed by Marine Scotland during the preparation of the previous draft Plans.  The details of this process and the ways in which it would be pursued, and where needed modified, over time will be developed during the HRA process in consultation with the Project Steering Group.  These issues are also considered within Section 2.5 and Paragraph 4.14.6 and 4.14.7 (Section 4.14) of the Pre-Screening Report (Marine Scotland, 2018).

The RSPB consultation response also requests that mechanisms are explored which include robust mitigation and enhancement as well as statutory wind sector investment of enhancement measures to improve the resilience of natural marine wildlife and habitats.  This will require consideration during the HRA process and on an ongoing basis as part of the IPR process that is instigated.

B.2.3 Implications of recent Case Law for Mitigation

In recent months there have been some key EU and UK court decisions, and these will need to be taken into account to ensure that the HRA process is compliant with this case law.  These judgments are:

• April 2018 Case C323/17 People over Wind, Peter Sweetman v Coillte Teoranta
• July 2018 Case C-164/17 - Grace & Sweetman v An Bord Pleanala
• August 2018 Case EWHC 2190 -Langton v SoS for Environment, Food
• Rural Affairs, Natural England.

The implications of these judgements, and how they influence this HRA will be discussed with the Project Steering Group in the context of the SNH guidance on strategic HRA^[360].In simple terms however, a key outcome of these judgments is that there is a need to be careful when considering the influence and benefits of future anticipated mitigation measures during the HRA screening process.  The April 2018 case in particular has the effect of directing developers and planners to avoid relying on such future mitigation measures when making decisions about whether a project will have a likely significant effect.  Instead mitigation measures should be taken into account after the screening process when the Appropriate Assessment and HRA record are being undertaken.

The July and August 2018 judgements have also provided a steer regarding what constitutes mitigation and indicate that a distinction needs to be drawn between:

• measures designed to avoid or reduce any adverse effects and are considered in the Appropriate Assessment under Article 6(3); and
• measures that are undertaken to compensate for negative effects that are required Article 6(4).

In order to accommodate these project-level case law lessons to this strategic HRA, it is recommended that Stages 6 and 7, which direct the consideration of mitigation measures at the screening stage, are not formally considered.  Instead the process (as shown in Figure B1) would move from Stage 5 directly to Stage 8.

In terms of how this high-level HRA is progressed, this change is not expected to materially influence the outcome, methodological detail or thoroughness of the process.  Indeed, it has been shown during previous strategic HRAs that it has not been possible to use anticipated mitigation measures for the screening process because of the inherent uncertainties that exist at a plan-level and this same situation will also apply for this strategic HRA.  It is also expected to add clarity to the process and to the thinking on issues relating to mitigation (as discussed in the preceding section) to move through Stages 5 to 7 in this manner and then solely address the issue of mitigation at Stage 9.

Figure B1. Key stages of plan-level HRA process for plans

Source: David Tyldesley and Associates (2015).

B.2.4 Project Steering Group

During the consultations SNH confirmed that they would wish to be involved in the Project Advisory/Steering Group.  This Steering Group has now been set up and includes Marine Scotland; Scottish Government Energy Representative, SG Strategic Environmental Assessment (SEA) Officer, Scottish Natural Heritage, Historic Environment Scotland, Scottish Environment Protection Agency, Scottish Renewables, Crown Estate Scotland (Interim Management), two representatives from Scottish Environment LINK (RSPB and WWF); Joint Nature Conservation Committee, Scottish Fishermen’s Federation, and the Regional Inshore Fisheries Group.

B.2.5 Refinements to the HRA Process

In general, the feedback received from the consultation process has been positive and has verified that the proposed approach to the HRA is appropriate and is in keeping with SNH guidance.  However, a few detailed points and areas of clarification have been highlighted in the feedback received.  These points, and the way in which they will be addressed, are considered further below:

• Project Description Update for Future Documents: JNCC has noted that the ‘Background’ to the plan of the pre-screening report (Section 1.2 and especially Paragraph 1.2.3, (Marine Scotland, 2018)) should reflect the now broader scope of the plan as opposed to indicating a focus on floating technologies. This will be done for all future documents in the HRA process and will use, as suggested by JNCC, the text within the SEA report as appropriate.
• Consideration of Bird Foraging Distances.  SNH has confirmed that the use of ‘mean maximum’ foraging ranges (as proposed in Section 4.4, Paragraph 4.4.5 of the pre-screening report (Marine Scotland, 2018)) is appropriate.  JNCC has also offered advice in respect of dealing with foraging distances (both shorter and longer than 100 km buffer zone.  The way in which longer-distance foragers are dealt with (and the relevance of the ‘mean maximum’ distances for these species that is quoted in Paragraph 4.4.4 of the Pre-screening report (Marine Scotland, 2018)) will be discussed further with the Project Steering Group during next stages of the assessment process.  The at-sea distribution documents cited by JNCC will be reviewed as part of this process.
• Consideration of White-Tailed Eagle: Both SNH and JNCC have highlighted the presence of White-Tailed Eagle now on the west coast as well as the east coast of Scotland (see Paragraph 4.4.7 (Marine Scotland, 2018)).  The comments about the vulnerability of this species are noted but, as there are no SPAs or pSPAs for this species in Scotland, this population will not be considered within the HRA process.  It will however need to be addressed within the SEA.
• Revision to the Seal Screening Distances: In the pre-screening report a 100 km buffer around the Areas of Search was proposed for ‘screening in’ grey and common seal species that might be affected by the proposed plan (Section 4.5, Paragraph 4.5.3 (Marine Scotland, 2018)).  SNH has advised that distances of 20 km and 50 km are appropriate for grey and common seals respectively.  These distances will therefore be used for the screening process.
• Marine Mammal Impact Pathways: As recommended by JNCC, during the screening and assessment of effects on marine mammals it will be made clear that the direct and indirect effects to Marine Mammal via the features’ habitat and prey will be included as impact pathways in Steps 1 and 2 of the process (see Paragraph 4.9.2 of the Pre-screening report (Marine Scotland, 2018)).  This approach was anticipated and will be in keeping with past HRAs including the one produced for the 2013 Draft Sectoral Plan (Marine Scotland, 2013);
• Removal of Category D Sites and Features: SNH has highlighted that Category D sites and features which are a ‘non-significant presence’ and of ‘little conservation value’^[361] do not need to be considered within the HRA process.  These sites and features will therefore be removed for the screening and assessment phases of the work.  At the start of these next phases, the latest version of the JNCC Natura features database will also be downloaded to ensure that the most up-to-date information is being used.  JNCC also identify a number of adjustments that should be made to qualifying the interest features in the pSPA and these will be made as required following the database upload.
• Responses to Future Plan Change: In Paragraph 5.2.1 of the pre-screening report (Marine Scotland, 2018), it is noted that if any further detail on the plan emerges (as this HRA is progressed) then the detail and focus of the HRA will be adjusted accordingly.  This process will occur within the lifetime of the HRA process.  SNH has asked how this thinking will translate to the ongoing process of plan implementation up to 2025 and beyond.  This relates to the proposed IPR process as discussed in Section 2.2 which will need to be developed and reviewed during the HRA process in consultation with the Project Steering Group.
• Introducing Categorisation to the Natura sites list:  To improve the presentation and interpretation of the long list of Natura sites that will inherently be generated by this high-level HRA process, SNH has offered a mechanism for categorising the sites.  This categorisation will be adopted for the screening and assessment process.
• Consideration of available data and tools.  In the correspondence received from SNH, JNCC and the RSPB, there are offers of support and references made to relevant information sources and tools (e.g. the Feature Sensitivity Tool (FeAST) for sensitivity analysis).  This support is appreciated, and the relevant tools will be used in consultation with these three organisations and the Project Steering Group.

In addition, SNH offers additional comments in a short Annex to their letter dated 23 July 2018.  These comments and the references cited will be considered as part of the screening and assessment work. The following comments have also been received from organisation and individuals. In addition, SNH offers additional comments in a short Annex to their letter dated 23 July 2018.  These comments and the references cited will be considered as part of the screening and assessment work. The following comments have also been received from organisation and individuals:

• Response ID ANON-WYYN-2K2G-A:  Highlights the uncertainties associated with cable landfall arrangements and this will be recognised in the HRA (see also Section 2.5 of the Pre-screening report (Marine Scotland, 2018)).  In this communication a request is also made to exclude vessel activities from Impact Pathway 8 in Table A1.  However, it is considered that vessel effects must be included as they will represent an essential part of the activities to be undertaken.  A request for a table of abbreviations is acknowledged and this will be included in future documentation.  Also, it is acknowledged that text is missing at the start of Paragraph 4.3.8.  The first word should say ‘For’ rather than ‘or’.
• Response ID ANON-WYYN-2K2G-D:  Considers that the proposed methods for the HRA are appropriate as it is adheres to established practice and offers no further comment specifically on the HRA
• Response ID ANON-WYYN-2K2F-C:  This communication emphasises the need to consider cumulative effects from increased numbers of offshore windfarms.  It also proposes that the HRA should include a scenario in which all the areas of search are developed.  The requirement to address cumulative (or, in this case “in-combination”) effects and the challenges associated with this element of the HRA process are noted and are also highlighted in Section 4.15 of the pre-screening report (Marine Scotland, 2018).  The challenges arise in particular because this in-combination element of the assessment process includes further levels of uncertainty in addition to those that are an inherent part of the proposed plan on its own.  There is a need, for example, to think about the in-combination effects with other extant and relevant plans and projects.  In this case, consideration of evidence, precedents and the development of an appropriate Iterative Plan Review (IPR) process) will be key requirements for ensuring that there are no in-combination effects.  It is likely to be unrealistic and misleading though to include a scenario in which all the areas of search are developed as that eventuality would not be consistence with the likely scale of the development.
• Response ID ANON-WYYN-2K2H-E.  This consultation response asks that target species for commercial fishing are included.  These issues will be addressed within the SEA, but they fall outside the remit of the HRA except in so far as fish species are interest or supporting features of designated sites.
• Response ID ANON-WYYN-2K21-Q.  Provides support for the assessment methodology but raises a request that the timing of leases in the context of the environmental assessment work being done for the plan.  It is envisaged that this subject will be addressed during the development of the proposed plan implementation process (which will be considered further during the assessment work including as part of the HRA process).
• Response ID ANON-WYYN-2K28-X.  This consultation response determines that the pre-screening report is comprehensive and supports the approach being proposed.
• Response ID ANON-WYYN-2K99-6.  This response asks that pelagic fish and the value of reefs and fisheries exclusion zones are considered.  It also offers information on the subject of windfarm extent.  These aspects will be addressed within the HRA process where they could have an effect (including a beneficial effect) on internationally designated sites.  However, the fish and fisheries considerations will be largely addressed under the SEA process.
• Respondent Information Form.  A range of technical comments were provided that will be noted within the HRA process.  These included:
• Agreement with the need to be technology neutral (See Paragraph 1.2.5 of the Pre-Screening report (Marine Scotland, 2018));
• It is more accurate to refer to “floating structures” or “floating wind turbines” rather than floating foundation’.  This will be done in future;
• It is noted that seabed founded structures such as jackets are suitable for depths up to 55 m (See Paragraph 1.2.1 of the Pre-Screening report (Marine Scotland, 2018)); and
• Identifying cable alignments at this stage appears almost impossible and that frequently, the connection point is some distance from the coast and several landfall locations need to be examined with widely different potential alignments.  This point helps to further reaffirm the issues and uncertainties associated with the cable alignments and landfall aspects as noted above.

B.3 References

ABPmer, 2018. Sectoral Marine Plan for Offshore Wind. Strategic Habitat Regulations Appraisal (HRA): Review of Proposed Assessment Methodology. Report prepared for Marine Scotland. November, 2018.

European Commission. 2011.  Commission Implementing Decision of 11 July 2011 concerning a site information format for Natura 2000 sites (2011/484/EU)

https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32011D0484&from=EN

Marine Scotland 2013. Planning Scotland’s Seas Sectoral Marine Plans for Offshore Wind, Wave and Tidal Energy in Scottish Waters Consultation Draft

/binaries/content/documents/govscot/publications/consultation-paper/2013/07/draft-sectoral-marine-plans-offshore-renewable-energy-scottish-waters-consultation/documents/00428241-pdf/00428241-pdf/govscot:document/

Marine Scotland, 2018. Sectoral Marine Plan for Offshore Wind Energy (encompassing Deep Water Plan Options).  Strategic Habitat Regulations Appraisal: Pre-Screening Report. June 2018. https://www.gov.scot/Resource/0053/00536718.pdf

David Tyldesley and Associates, 2015. Habitats Regulations Appraisal of Plans.

Guidance for Plan-making Bodies in Scotland Version 3.0, January 2015 SNH Ref 1739.