Environmental damage: extending the Environmental Liability Directive into marine waters Consultation on amending the Environmental Liability (Scotland) Regulations 2009 in Scotland to transpose Article 38 of the Offshore Safety Directive 2013

Impact

3.1 Previous Impact Assessment ( IA) work suggests the following activities have the potential to cause damage in the marine environment: fisheries, shipping, activities releasing contaminants on land, contaminants from the oil and gas industries, mariculture, litter, disturbance, engineering operations and dredging and dumping.

3.2 The ELD only requires action where a business or other operator has caused - or is imminently about to cause - significant environmental damage. Evidence to date suggests this happens very rarely. In the five years between 2009 and 2014 since the 2009 Regulations came into force, there have been only three cases of inland freshwater water damage in the UK and none in coastal waters. By comparison there are likely to be fewer applicable cases on average in the area out to 12 nautical miles because of reduced levels of economic activity there and given the greater difficulty in monitoring, detecting and enforcing damage. This assessment also reflects the fact that no case of damage to species and habitats in the marine environment has yet fallen under the ELD. This suggests that damage to water out to 12 nautical miles might happen once in 10 years or less across the UK. More detail on this is contained within the DECC/ HSE IA which accompanies the consultation covering the wider transposition of the OSD.

3.3 Remediation requirements under the ELD are triggered by a measurable adverse change. For waters subject to the WFD this change must be sufficient to lower the status or prevent an improvement in status of the water body as defined in the WFD. The concept of good environmental status contained within the MFSD is wider than that in the WFD as it includes additional descriptors relating to commercial fish, some aspects of biodiversity and the introduction of marine litter and energy (including underwater noise). The 11 MSFD descriptors are:

• biological diversity;
• non-indigenous species;
• commercially exploited fish and shellfish;
• food webs;
• human-induced eutrophication;
• sea floor integrity;
• hydrographical conditions;
• contaminants;
• contaminants in fish and other seafood;
• marine litter; and
• and the introduction of energy (including underwater noise).

3.4 Adverse change in the status of a WFD water body can be more readily assessed than measuring changes to status for MSFD at the level of sub-regional sea areas (The sub-regional seas comprise the Greater North Sea and the Celtic Seas). Additionally, damage to marine waters would have to be significant at the sub-regional seas scale to trigger action under the ELD.

3.5 If such damage does arise there are likely to be costs under existing arrangements to address the damage, depending on the nature and extent of the damage caused. Opportunities to directly and actively restore damage will be limited in the marine environment and the measures required will therefore largely be to compensate for the damage. As there may be limited opportunities to take such compensatory measures in the marine environment other appropriate measures may sometimes have to be taken elsewhere. The main costs are therefore likely to relate to paying for environmental improvements.

3.6 It is difficult to be certain but there is a possibility that the proposed amendments to the 2009 regulations may deliver additional benefits to the marine environment if operators take additional steps to ensure that incidents are less likely to take place in future through enhancements to their plans to comply with the ELD provisions relating to biodiversity.

Question 2: do you have any views on the likelihood of potential damage in marine waters affecting their environmental status as defined under the MSFD?

Question 3: what do you consider to be the potential costs to industry should damage to marine waters occur that triggers action under the proposed amended Regulations?

Question 4: do you have any other comments on the proposed transposition of Article 38 of the OSD?

Question 5: what do you consider to be the potential benefits for marine waters under the 2009 Regulations, following the proposed amendments?