Marine (Scotland) Act 2010 - Marine Conservation Order provision changes: environmental report

1 Introduction

1.1 Background

1.1.1 The Scottish Government is committed to maintaining a healthy and biologically diverse marine and coastal environment that continues to provide economic, social and wider benefits to meet the long term needs of people and nature. The Scottish Biodiversity Strategy to 2045 sets out the vision to restore and regenerate biodiversity across Scotland's land, freshwater and seas by 2045, while ambitions under the Environment Strategy for Scotland include focus on the protection and restoration of Scotland's nature with flourishing biodiversity, clean and healthy air, water, seas and soils.

1.1.2 A wide range of mechanisms is available to help achieve these aims, including Marine Conservation Orders (MCOs). MCOs are a statutory mechanism under the Marine (Scotland) Act 2010 ("the 2010 Act") which enables Scottish Ministers to provide for the conservation of nationally important marine heritage sites. MCOs can be made by Scottish Ministers to any area in Scottish territorial waters (i.e., 0 – 12 NM).

1.1.3 In development of the policy proposals, Scottish Government's Marine Directorate has worked closely with key policy leads, legislation leads, and NatureScot representatives. Shortcomings in the current application of MCOs were identified, and proposals have been developed to broaden their application, thereby enhancing the protection of nationally important marine heritage sites in alignment with domestic and international biodiversity strategies and targets.

1.1.4 MCOs cannot currently be applied to standalone European marine sites (i.e. those which do not overlap or adjoin spatially with an MPA), which means that the powers available to Scottish Ministers to protect European marine sites are more limited than those available to protect MPAs.

1.1.5 In addition to better protecting existing sites, the growing interest and need for nature restoration projects to halt and reverse biodiversity loss means a suitable mechanism is required to safeguard suitable sites in the marine environment that have or are undergoing restoration and may need protection. Currently, restoration projects would need to follow the process to designate Demonstration and Research ("D&R") MPAs in order for the MCO provisions to become available to protect such areas. Not all restoration projects can meet the criteria for D&R MPA status meaning they may remain vulnerable to ongoing human activities. There is currently one D&R MPA, located in the waters surrounding Fair Isle. The site reaches out to sea 5 km from the island's coastline (157 km²) and has been established to primarily research the relationship between healthy seas and the maintenance of a local island community^[5].

1.1.6 The Scottish Government's Marine Directorate has identified legislative proposals which would amend MCOs provisions under the 2010 Act^[6] to strengthen the current approach by enabling Scottish Ministers to make MCOs under additional circumstances in Scottish inshore waters (0-12 NM) (Figure 1).

1.1.7 The proposed changes seek to enable the protection of nationally important marine heritage sites in alignment with domestic and international biodiversity strategies and targets, and to safeguard sites in the marine environment that have or are undergoing restoration. This would be achieved by enabling MCOs to be applied to:

• standalone European marine sites (i.e. those which do not overlap spatially with an MPA) in Scotland's inshore waters; and
• nature restoration and enhancement projects in Scotland's inshore waters.

1.1.8 This SEA undertakes an environmental assessment of the proposals to extend where MCOs can be applied. This Environmental Report forms part of the material provided for a public consultation and identifies potential significant (positive and negative) environmental effects of the proposal.

"Figure showing a map of Scotland and the territorial limits of Scotland's waters (12 nautical miles away from the coast). Region of Mean High Water Springs, running around the coast, is also shown on the map."

1.2 What is Strategic Environmental Assessment?

1.2.1 Strategic Environmental Assessment (SEA) identifies the likely significant environmental impacts of plans and policies and proposed reasonable alternatives to them. SEA also identifies mitigation measures that are required to avoid or minimise any significant adverse effects and highlights opportunities for enhancements of beneficial effects. Taking place at an early stage in the plan or policy preparation process, it ensures that decision-making is informed by relevant environmental information. SEA provides opportunities for the public to consider this information and use it to inform their views on the draft plan or policy. In accordance with the 2005 Act and Scottish policy, Scottish Ministers are committed to applying the SEA process as part of the development of the MCO amendment proposals.

1.2.2 The Environmental Assessment (Scotland) Act 2005^[7] ("the 2005 Act") requires Scottish public bodies or those exercising functions of a public character (Responsible Authorities) to undertake a SEA when preparing plans, programmes or strategies if it is likely to have significant environmental effects. This applies to both significant positive or negative environmental effects. The proposed amendment to existing MCO provisions under the 2010 Act falls under Section 5(4) of the 2005 Act and is therefore subject to SEA. The 2005 Act also sets out the information that is required to be provided in this Environmental Report.

1.2.3 A screening and scoping exercise was undertaken by Scottish Government's Marine Directorate in accordance with the requirements of the 2005 Act. A combined Screening and Scoping Report was published in September 2023, setting out the proposed approach to the SEA, including the proposed scope and level of detail. Comments were invited from the Scottish Consultation Authorities^[8].

1.2.4 The outcome from the Screening and Scoping Report and the consultation responses confirmed the need for an SEA as there is potential for significant environmental effects to occur as a direct result of the proposals. Scottish Government's Marine Directorate commissioned ABP Marine Environmental Research Ltd. (ABPmer) to undertake the assessment stage of the SEA and prepare this Environmental Report.

1.3 Purpose and Structure of this Report

1.3.1 This SEA provides a high-level and qualitative assessment of the potential environmental effects that are likely to result from any amendments to where MCOs can be applied in the inshore zone. This SEA builds on previous and ongoing SEAs that have been undertaken on marine conservation work by the Scottish Government.

1.3.1 The SEA identifies positive and negative effects. The assessment identifies the individual and cumulative effects of the proposed amendments to MCO provisions on the SEA topics that are scoped into the assessment, specifically Biodiversity, Flora and Fauna; Soil (benthic (seabed) substrates and habitats); Water; Climatic Factors; and Cultural Heritage. At a cumulative level the assessment considers the proposals in relation to other relevant plans, programmes, or strategies.

1.3.2 The assessment also considers the effects of development on a series of key statements ('SEA objectives'). These objectives reflect the scope of the assessment as well as the environmental protection objectives from relevant legislation.

1.3.3 The potential economic and social impacts that may result from the implementation of the legislative reforms does not form part of the scope of this SEA. Additional assessments may be undertaken, as appropriate, to help estimate the socio-economic benefits, costs, and risks associated with the proposed reform. Section 91 of the 2010 Act also sets out a duty on Scottish Ministers to assess the socio-economic and environmental impact of restricting activity when making an MCO.

1.3.4 Recognising duties under Section 14 of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021^[9], this report also considers the duty on Scottish Ministers to have due regard to the guiding principles on the environment in making policies (including proposals for legislation) and record how due regard has been given to the principles in preparing the Environmental Report. The guiding principles on the environment are set out in Section 13 of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 and include:

a) the principle that protecting the environment should be integrated into the making of policies;

b) the precautionary principle as it relates to the environment;

c) the principle that preventative action should be taken to avert environmental damage;

d) the principle that environmental damage should as a priority be rectified at source; and

e) the principle that the polluter should pay.

1.3.5 The views of the public and the Consultation Authorities on the proposed changes to MCO provisions and the findings of this Environmental Report are now being sought.

1.3.6 The remainder of this Environmental Report is structured as follows:

• Section 2 provides background information on the proposed changes to MCO provisions;
• Section 3 presents the approach to the SEA and the methods used;
• Section 4 describes the relevant components of the environment that could be affected by the proposed changes to MCO provisions;
• Section 5 sets out the results of the assessment;
• Section 6 considers the duty on Scottish Ministers to have due regard to the guiding principles on the environment; and
• Section 7 considers the next steps in the implementation of the MCO provisions and the SEA process.

1.3.7 The Non-Technical Summary precedes Section 1.