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

1 Introduction

1.1 Report Background

1.1.1 The Scottish Government is developing a Plan for future commercial^[2] offshore wind development in Scottish waters in the period to 2050. The plan builds on the previous draft plan for offshore wind published in 2013^[3]  and seeks to provide opportunities for deep water wind technologies which may become commercially viable over this time period as well as further opportunities for fixed bottom technologies.

1.1.2 The geographical scope of the Plan 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.

1.1.3 This new Plan needs to be accompanied by a Habitats Regulations Appraisal (HRA) process.  This HRA process is required to assess the Plan’s potential effects on international protected nature conservation sites.  This HRA process has been undertaken as a sequence of discrete stages in accordance with established guidance for conducting plan-level HRA that was produced by Scottish Natural Heritage (SNH) in 2015.  This process also takes account of the guidance produced by the European Commission on the ‘Assessment of plans and projects significantly affecting Natura 2000 sites’^[4].

1.1.4 The HRA is also being overseen by a Project Steering Group (PSG) which includes representatives from within Scottish Government, The Crown Estate, and Scottish Natural Heritage.  Further background details to the plan and details of the Plan development process are set out in the introductory chapter of the preceding HRA Pre-screening report (see Appendix A).

1.1.5 In addition to this plan-level HRA, to support and inform the development of the Sectoral Marine Plan for Offshore Wind a separate Strategic Environmental Assessment (SEA) and Social and Economic Impact Assessment (SEIA) have been produced.

1.1.6 It should be noted that this plan-level HRA is not a substitute for the future requirements of HRAs carried out for individual projects.  Such project-level HRA processes will still be required in accordance with the relevant legislation.

1.1.7 Further summary details about the scope of this plan-level HRA process and the work undertaken for the screening and assessment stages of this study are presented below.

1.2 Scope of the Habitats Regulations Appraisals

1.2.1 The Habitats Regulations implement the EC Habitats and Birds Directives in UK^[5] waters and require that an Appropriate Assessment (AA) should be undertaken where a plan or project is not directly connected with or necessary for management of designated European sites, or offshore European sites, and where the possibility of a likely significant effect (LSE) on these sites cannot be excluded, either alone or in-combination with other plans or projects.  These sites include the following which comprise the Natura 2000 network:

• Special Areas of Conservation (SACs) designated under the EC Directive on the Conservation of Natural Habitats and of Wild Fauna & Fauna (the Habitats Directive); and
• Special Protection Areas (SPAs) sites classified under the EC Directive on the Conservation of Wild Birds (the Birds Directive).

1.2.2 In the UK, these requirements are also extended to the consideration of:

• Ramsar Sites^[6] (listed under the Ramsar Convention on Wetlands of International Importance); and
• Sites that are proposed for designation and inclusion in the Natura 2000 network and those sites that are currently in the process of being classified such as: potential SPAs (pSPAs), candidate and possible SACs (cSACs and pSACs) and Sites of Community Importance (SCIs^[7]).

1.2.3 As Competent Authority, Marine Scotland is responsible for producing an AA that assesses the impacts of the plan on these sites in fulfilment of the Habitats Regulations obligations.  This AA needs to determine whether there will be an ‘adverse effect on integrity’ (AEOI) at any sites with reference to their conservation objectives.

1.2.4 If it is concluded that the Plan will have an AEOI at a European/Ramsar site (either alone or in-combination with other plans or projects), the Plan can only be adopted if it has been ascertained that there are no alternative solutions and it is necessary for Imperative Reasons of Overriding Public Interest (IROPI), including those of a social or economic nature. In these circumstances, before such a plan can proceed, compensatory measures must be secured to ensure that the overall coherence of the network of Natura 2000 sites is maintained.

1.2.5 A major consideration for this HRA process is that the Sectoral Marine Plan for Offshore Wind (Draft Plan) has many inherent uncertainties associated with it.  These relate to aspects such as:

• the detail of the implementation process;
• future generation capacities;
• the location, scale and densities of development with the DPOs;
• the proposed technologies to be used;
• the scale of the effects arising via some of the defined impact pathways;
• the efficacy of some project-level mitigation options.

1.2.6 In addition to the inherent uncertainties about the project details and the impacts arising from the Draft Plan, there will be a high level of uncertainty associated with the future impacts which apply to other plans and projects. Such uncertainty about in-combination effects are typically a characteristic in all strategic coastal and offshore plans where the full extent of future developments cannot be anticipated.

1.2.7 Although these uncertainties exist, a high level of certainty is required under the Habitats Regulations that there will be no AEOI of any European/Ramsar site.  The HRA has therefore taken account of these issues and, where required, identified relevant mitigation measures to accompany the Draft Plan.  The legislative context for this HRA is also described in Section 2.1 of the pre-screening report (see Appendix A).

1.3 Reporting and Consultation Stages

1.3.1 To assess the effects of the new ‘Sectoral Marine Plan for Offshore Wind’ on these European/Ramsar sites, the SNH guidance identifies a 13-step plan-level HRAs process (see Figure 1). This staged approach has been adopted, and consulted upon, over three key project phases to ensure there is a high level of clarity and auditability in the assessment process (an important requirement for strategic-level HRAs which need to be carried out in an iterative, auditable and transparent manner). The findings from each of these phases are presented in the following reports:

• Phase 1 – Pre-screening Report (HRA Stages 1-3) which is included as Appendix A;
• Phase 2 – Review of Proposed Assessment Methodology (HRA Stage 4) which is included as Appendix B; and
• Phase 3 – Screening and Appropriate Assessment Information Report (AAIR) (HRA Stages 5 to 10) this document.

1.3.2 The Pre-screening report, encompassing Phase 1, was produced by Marine Scotland in 2018 and sets out the evidence base and the proposed methods to be applied for the subsequent screening/scoping and assessment stages of the HRA work (Appendix A).  The methods proposed were based on available guidance and established best practice that has been developed over the course of multiple preceding plan-level HRAs (and the associated stakeholder and Steering Group discussions which accompanied them) that have been carried out over the last decade.

1.3.3 The previous ‘case example’ plan-level HRAs are listed in Section 2.3 of the Pre-screening report (Appendix A) and include those that were carried out for previous plans in Scottish Waters such as the draft Sectoral Marine Plans for Offshore Renewable Energy^[8]; draft plan for the Offshore Wind Energy (OWE)^[9] Wave and Tidal Energy (W&TE) generation plans^[10].  In addition, during this HRA, consideration has been given to the methods being adopted for new plan-level HRAs that have recently been started to assess The Crown Estate’s next round of Offshore Windfarm development (NIRAS in prep.) and Minerals extraction (Marine Space and ABPmer in prep.)

1.3.4 In addition to reviewing the screening methods, the pre-screening report also identified an initial list of 652 European/Ramsar sites, and their qualifying interest habitats and species, for which there could be a LSE (or the possibility of LSE could not be excluded at this stage) from the plan.  This list encompassed all sites within an objective and quantifiable ‘pre-screening buffer zone’ which encompassed the EEZ around Scotland plus a 100 km buffer south of the Scottish border (Figure 5 of Appendix A). Since production of the pre-screening report, locations of the Draft Plan Options (DPOs) have been agreed, allowing the initial pre-screening list to be rationalised based on the provision of a 100 km buffer around the DPOs and, as a first step, acknowledging all European/Ramsar sites within this buffer (the screening list).

1.3.5 To provide a fully auditable trail through the HRA process, the original pre-screening list of European/Ramsar sites is presented (Table A3, Appendix A). However, it is the screening list (Table C1, Appendix C) that provides the starting point for all screening steps and it is this list which has been updated according to the agreed plan-level HRA screening criteria (see Appendix A and B).

1.3.6 For Phase 2, the pre-screening report was consulted upon and a brief ‘Review of Proposed Assessment Methodology’ report was produced in November 2018 (Appendix B). This considered the consultation responses received on the pre-screening report and revisited the proposed HRA scoping and assessment methods in the light of that feedback. It also considered the implications of key EU and UK case-law judgements made during the summer of 2018 (i.e. between the production of the Phase 1 and Phase 2 reports) and how these should be acknowledged within this HRA process.

1.3.7 To accommodate project-level case law lessons and the judgements that took place in July and August 2018, it was recommended that Stages 6 and 7 of the plan-level HRA process, which direct the consideration of mitigation measures at the screening stage, are not formally considered (see Review of Proposed Assessment Methodology report). Instead the process (as shown in Figure 1) would move from Stage 5 directly to Stage 8 (assessment).

1.3.8 The Phase 2 report was also discussed at a PSG meeting on 9 November 2018.  Through this process generally positive feedback was received and it was agreed that the methods proposed in the Phase 1 pre-screening report (Appendix A) would be applied with minor changes, as set out in the Phase 2 report (Appendix B).

1.4 Development of Draft Plan Options

1.4.1 The sectoral marine planning process (Figure 1) is an iterative process, informed through stakeholder engagement and evidence from the related social, economic and environmental assessments.  All of the information and consultation feedback gathered supports the Scottish Ministers in identifying Draft Plan Options (DPOs) to progress to the next phase of the plan process.

1.4.2 The DPOs have emerged through an examination of spatial data considerations in addition to advice and other related information provided by members of the Steering Groups, as well as stakeholders

1.4.3 The key stages of the planning process in relation to the identification of the Draft Plan Options, described in greater detail below, are:

1. Opportunity and Constraint (O&C) Analysis – Iteration 1
2. Opportunity and Constraint (O&C) Analysis – Iteration 2 - Single Issue Constraint Analysis
3. Scoping Consultation
4. Opportunity and Constraint (O&C) Analysis – Iteration 3
5. Identification of Draft Plan Options
6. Next Steps

Figure 1: Key stages of plan-level HRA process for plans^[11]

Figure 2: Scoping AoS to DPO

Opportunity and Constraint (O&C) Analysis – Iteration 1

1.4.4 The identification of initial Areas of Search (AoS) was carried out through the use of  an O&C analysis.^[12] It built upon previous work carried out by Marine Scotland Science in 2011^[13] and the production of draft regional locational guidance for potential deep water floating offshore wind test sites in 2014.^[14] The analysis was iterative, so updates could be incorporated as required in order to reflect stakeholder feedback.

1.4.5 Full details of the O&C analysis can be found in the AoS scoping report published for consultation in 2018.^[15]  The O&C analysis sought to identify areas of opportunity for the future development of offshore wind, whilst also identifying areas that minimised potential negative impacts to the environment, other sectors and users of the sea.  This analysis was completed through the use of GIS and numerous spatial data resources.

Opportunity and Constraint (O&C) Analysis – Iteration 2

1.4.6 Sectoral engagement workshops were held in spring 2018.  The AoS were then refined with consideration to specific spatial issues and feedback from the workshops.

1.4.7 This refinement process identified a range of distinct AoS (Figure 2).  As the draft Plan is technology neutral, no commercial or technology specific information was used in this refinement process.

Scoping Consultation – Screening and Scoping Reports

1.4.8 Scottish Ministers then consulted on the screening and scoping stages of the Plan process during June and July 2018.  Screening and scoping reports were prepared and published online for the SEA, HRA and SEIA alongside the AoS scoping study.

Opportunity and Constraint (O&C) Analysis – Iteration 3

1.4.9 Iteration 3 of the O&C analysis was undertaken, which considered the responses received during the Scoping Consultation.  For more details see the Consultation Analysis.

1.4.10 The AoS were refined with consideration to the outputs of the Iteration 3 O&C Analysis. As a result, certain AoS were either removed or refined to avoid/incorporate certain areas of Scottish Waters.

1.4.11 This stage also considered the areas of seabed proposed by stakeholders via the scoping consultation. A number of the areas proposed overlapped with existing AoS, while others overlapped with areas with higher levels of constraint or entirely new areas.  This information was provided to Scottish Ministers to inform their decision on the selection of DPOs.

1.4.12 Upon review of the above information, Scottish Ministers identified areas to move forward in the plan process.  It should be noted that some additional areas were included at this stage, where there was significant stakeholder interest, but also increased constraint. The Sustainability Appraisal stage will assess these areas in greater detail.

Identification of Draft Plan Options

1.4.13 The 22 revised Areas of Search were made available to the Sectoral Marine Plan Project Board and two Project Steering Groups for consideration and comment.^[16]

1.4.14 Responses from both the Board and Steering Groups, together with the outputs of the initial assessments, were presented to Scottish Ministers to inform their decision on which AoS should progress to the Sustainability Appraisal for more detailed assessment.

1.4.15 Seventeen revised AoS were selected as DPOs (Figure 2).

Next Steps

1.4.16 Following the statutory consultation, the responses received will be subject to consultation analysis. This analysis will be considered by Scottish Ministers’ and inform their decision on which Options to take forward in the Final Plan.

1.4.17 It should be noted that if significant changes are required as a result of the consultation feedback, further assessment and consultation may be required prior to adoption and publication of the Final Plan. The Post Adoption Statement (to be published with the Final Plan) will detail any changes made to the Plan as a result of consultation feedback.

1.4.18 The Phase 3 report, this report, details the outcome of the ‘Screening and Appropriate Assessment Information’ phase of the process including consideration of in-combination effects and mitigation (Stages 5, 8 and 9).

1.4.19 This report initially presents the list of ‘screened in’ sites that have been taken forward i.e. those European/Ramsar sites contained within a 100 km buffer zone around the DPOs. The concluding outputs from the subsequent screening steps for each of the feature groups are then provided.

1.4.20 Stage 8 (assessment) is then detailed including consideration of potential in-combination effects with known plans and projects. Suitable plan-level mitigation is then provided along with strategic recommendations.

1.4.21 Hence, this report encompasses Stage 5 (screening), Stage 8 (assessment), Stage 9 (mitigation) and Stage 10 (draft HRA record) (see Figure 1). To cover Stages 11 to 13, this report will be forwarded for consultation and a final assessment document produced which acknowledges the consultation and any amendments required.  The final AA will be produced by Marine Scotland as the Competent Authority.

1.5 Report Structure

1.5.1 The report has been structured as follows:

Summary: Non-Technical Summary a summary and overview of this report.

Section 1: Introduction provides background to plan and the HRA together with details of the scope of the documents and the report structure;

Section 2: Screening/Scoping presents a review of the approach and outcomes of the Screening/Scoping Process as Stage 5 of the HRA process.

Section 3: Screening summary providing results of Stage 5.

Section 4-10: Appropriate Assessment Information presents a review of the approach and outcome of the Assessment Process as represented by Stage 8 of the HRA process.

Section 11: Mitigation presents detail of the proposed plan-level mitigation measures encompassing Stage 9 of the HRA-process.

Section 12: Conclusion

1.5.2 The following supporting information is provided in the appendices:

Appendix A: Pre-screening Report (HRA Stages 1-3)

Appendix B: Review of Assessment Methodology (HRA Stage 4);

Appendix C: Screening Table (Table C1)

Appendix D: Screening Schedules for each DPO (Tables D1-D17);

Appendix E: DPO Screening Maps for each of the 17 DPOs (Figures E1-E17);

Appendix F: >100 km Screening Maps of European/Ramsar sites supporting features occurring outside of 100 km buffer;

Appendix G: Seabirds Literature Review describing the baseline environment conditions for foraging seabirds to inform the screening process;

Appendix H: Marine Mammals Literature Review describing the baseline environment conditions for marine mammals and otters to inform the screening process; and

Appendix I: Fish Literature Review describing the baseline environment conditions for migratory fish to inform the screening process.

Appendix J: Project Level Mitigation measures for all identified impact pathways for offshore wind developments.