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

2 Proposals for Changes to MCO Provisions

2.1 Background to MCOs

2.1.1 MCOs are a statutory mechanism under the 2010 Act which enables Scottish Ministers to provide for the conservation of nationally important marine heritage sites. MCOs are covered by sections 85 – 94 of the 2010 Act. Section 85(1)^[10] outlines the current key purposes of MCOs:

85 Marine conservation orders

(1)The Scottish Ministers may make one or more orders ("marine conservation orders") for any or all of the following purposes—

(a) that of furthering the stated conservation objectives for a Nature Conservation MPA,

(b) that of furthering a stated purpose for a Demonstration and Research MPA,

(c) that of furthering the stated preservation objectives for a Historic MPA,

(d) where any such marine protected area—

(i) includes all or part of (or is included in whole or part in) a European marine site, or

(ii) adjoins a European marine site,

that of protecting the European marine site.

2.1.2 As outlined above, Scottish Ministers currently have powers to make MCOs in the following circumstances:

• To protect any type of MPA (as designated under s67 of the 2010 Act) for the purpose of furthering a stated purpose or conservation objective; and
• To protect any overlapping or adjoining European marine site, comprising either Special Areas of Conservation (SAC) or Special Protection Areas (SPA) under the European Habitats Directive (92/43/EEC)^[11] and Birds Directive (2009/147/EC)^[12].

2.1.3 As set out under section 85(2) of the 2010 Act, Scottish Ministers can make an MCO to apply to any area in Scottish territorial waters, for the purposes set out above.

2.1.4 Section 86 of the 2010 Act^[13] outlines example provisions for MCOs. These include (amongst others) prohibiting, restricting, or regulating:

• Entry or movement;
• Anchoring;
• Disturbance to animals or plants;
• Removal; and
• Depositing.

2.1.5 A series of MCOs have been made between 2015 and 2022 and are shown in Figure 2. These include:

• The South Arran MCO 2015^[14];
• The Loch Sunart to the Sound of Jura MCO 2016^[15];
• The Wester Ross MCO 2016^[16];
• The Loch Carron MCO 2019^[17]; and
• The Red Rocks and Longay Marine Conservation Order 2022^{[18], [19]}.

"Figure showing a map of Scotland and areas of current Marine Conservation Orders (MCOs). MCOs shown on map are Loch Carron, Loch Sunard to the Sound of Jura, Red Rocks and Longay, South Arran, and Wester Ross. The territorial limit of Scotland's waters (12 nautical miles) is also shown."

2.1.6 The Marine Directorate has identified legislative proposals which would amend the 2010 Act, the legislative framework for managing Scotland's inshore region. As outlined in section 1.1.7, the proposals would enable MCOs to be made:

• 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.

2.1.7 The proposals therefore extend existing powers in the 2010 Act, with the provisions remaining applicable only in Scottish territorial waters.

2.1.8 It should be noted that these proposals do not identify specific new spatial locations of the sea for protection through MCOs. The intention of the proposals is to improve the current provisions under the 2010 Act by ensuring that MCOs could be used to protect standalone European marine sites and nature restoration and enhancement projects in future if appropriate. It is therefore only possible to undertake an SEA at this stage involving a preliminary consideration of the types of impacts that could arise from the future making of MCOs under the proposed extended provisions, and restrictions/limitations placed on activities within them.

2.2 Relationship with the existing legislation

2.2.1 As outlined in section 2.1.1, the purpose of MCOs is to further the conservation objectives, purpose, or preservation objectives of nature conservation MPAs, D&R MPAs, and Historic MPAs, respectively. These designations are covered by Part 5 of the 2010 Act. In addition to fulfilling statutory conservation obligations under both the 2010 Act and the UK Marine and Coastal Access Act 2009^[20] ("the 2009 Act"), inshore and offshore MPAs also form part of the wider OSPAR network of MPAs that are found across the North East Atlantic^[21].

2.2.2 MCOs can also be applied to European marine sites if the site overlaps or adjoins an MPA. European marine sites, consisting of SACs and SPAs are designated/classified in Scotland's inshore waters under the Conservation (Natural Habitats &c.) Regulations 1994 (as amended)^{[22], [23], [24]}.

2.2.3 The Scottish MPA network consists of 247 sites, 233 of which are for nature conservation purposes, covering 37% of Scotland's seas^[25]. In addition, there is one D&R MPA in the waters surrounding Fair Isle^[26], eight historic MPAs, and five Other Area Based Measures recognised as part of the Scottish MPA network^[27].

2.2.4 MCOs can help to further the conservation objectives of MPAs through the management or restriction of activities. To date MCOs have mostly been made for the protection of MPAs from certain fishing activities (but their application is not limited to this purpose). A key benefit to MCOs is that they can be applied to multiple activities through a single regulatory route. For example, the Red Rocks and Longay MCO 2022^[28] restricts and prohibits a wide range of activities (including fishing, diving, dredging, construction and anchoring) to protect flapper skate and their eggs.

2.2.5 The Inshore Fishing (Scotland) Act 1984^[29] and the Sea Fish (Conservation) Act 1967^[30] also provide powers to prohibit sea fishing in specified areas. An example is The Inshore Fishing (Prohibition of Fishing and Fishing Methods) (Scotland) Order 2015^[31] which restricts certain fishing activities in specified MPAs. MCOs and fisheries management measures in effect in February 2022 are available on 'Marine Scotland Maps NMPI'^[32].

2.2.6 In terms of wider seas management of activities, marine licensing and marine planning contribute to sustainable development and use of marine resources. The National Marine Plan^[33] outlines that consideration should be given to opportunities to enhance biodiversity and associated ecosystem services, including recovery and/or enhancement of degraded habitats or species populations. GEN9 (Natural Heritage) of Scotland's National Marine Plan also outlines that development and use of the marine environment must protect and, where appropriate, enhance the health of the marine area^[33]. In terms of marine licensing, the 2010 Act (s.27) requires that in determining an application, regard must be had to the need to:

• Protect the environment;
• Protect human health; and
• Prevent interference with legitimate uses of the sea.

2.3 Policy context and Development of Proposals

2.3.1 The 2005 Act requires Responsible Authorities to identify the plan's broader policy context, particularly any relevant environmental protection objectives that will influence the plan's development and implementation. In terms of the immediate policy context for the proposed changes to MCO provisions, these are set out in section 1.1.

2.3.2 The following paragraphs set out the broader policy context in which the proposed extension to MCO provisions sit, beginning with a summary of relevant marine policies and followed by an overview of policies relating to the SEA topics that have been scoped into the assessment, specifically Biodiversity, Flora and Fauna; Soil (benthic (seabed) substrates and habitats); Water; Climatic Factors; and Cultural Heritage^[34].

General marine policy

2.3.3 At a UK level, the Marine Strategy Regulations (2010) require the UK to take the necessary measures to achieve or maintain Good Environmental Status (GES) through the development of a UK Marine Strategy. It sets out the UK level policy framework for the delivery of the vision of clean, healthy, safe, productive, and biologically diverse oceans and seas. However, GES has not been achieved for 11 out of the 15 indicators^[35].

2.3.4 At a national level, the 2010 Act^[36] is applicable to Scotland's inshore waters (0-12 NM) and sets out powers for MCOs. Marine nature conservation measures are based on a three pillar approach, with action at the wider seas level (policy and measures); specific species conservation measures, and through site protection measures such as MPAs.

2.3.5 Scotland's National Marine Plan (NMP)^[37] covers the management of Scottish inshore and offshore waters. The NMP includes protection and enhancement of the health of marine areas in its general policy objectives. In addition, the NMP recognises that management requirements for specified protected sites must be met throughout the planning process. NMP2 will build on, and supersede, the first NMP. Currently in development, NMP2 will aim to reflect policy and legislative changes that have come forward since the first NMP was adopted^[38].

Biodiversity, Flora and Fauna

2.3.6 At the international level, targets have been developed, through the UN Convention on Biological Diversity (CBD) and the Kunming-Montreal Global Biodiversity Framework (GBF)^[39]. The CBD is a multilateral treaty, to which the UK is a signatory, which came into force in 1993, following the 1992 Earth Summit in Rio de Janeiro. One of the three objectives of the Convention is the conservation of biological diversity (or biodiversity). The GBF reiterates the importance of fulfilling the original objectives of the convention, i.e., conserving biodiversity, while setting out a mission to reverse biodiversity loss and to enhance and restore natural ecosystems to ensure their integrity, connectivity, and resilience.

2.3.7 For the North East Atlantic, OSPAR is the mechanism by which 15 Governments and the European Union (EU) cooperate to protect the marine environment. The Northeast Atlantic Environment Strategy 2030 has been adopted by OSPAR^[40] which sets out strategic objectives to help to achieve good environmental status in the marine environment.

2.3.8 OSPAR also has a list of threatened and/or declining species and habitats^[41] which was developed through the OSPAR Protection and Conservation of Ecosystems and Biological Diversity work area to fulfil the commitment to identify species and habitats that require protection. Contracting parties and observers to the Commission nominate species and habitats they consider in need of priority protection. Numerous species and habitats found within the Scottish Marine Area are noted to be in decline.

2.3.9 At a European level, the Habitats Directive (92/43/EEC) and the Birds Directive (2009/147/EEC) designated marine areas of importance as Special Areas of Conservation and Special Protection Areas. These directives are implemented in Scotland through the Conservation (Natural Habitats, &c.) Regulations 1994^[24] within inshore waters (0-12 NM) and the Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2017^[123] which apply in waters beyond 12 NM. The key aims of these regulations are the protection, maintenance, and enhancement of biodiversity, particularly vulnerable species and habitats. The establishment of the Natura 2000 network (now referred to as the National Site Network) sought to deliver the requirements of these regulations.

2.3.10 At the national level, the Scottish Biodiversity Strategy to 2045^[42] sets out the vision to restore and regenerate biodiversity across Scotland's land, freshwater and seas by 2045. This strategy includes the marine environment and sets out several priority actions linked to goals and targets specified in the CBD^[43].

2.3.11 Ambitions under the Environment Strategy for Scotland^[44] include focus on the protection and restoration of Scotland's nature with flourishing biodiversity, clean and healthy air, water, seas and soils. It is a high level overarching policy framework identifying Scotland's strategic plans, priorities and opportunities to achieve these aims.

2.3.12 The Blue Economy Vision for Scotland^[45] sets out an approach for creating and maintaining economic prosperity for Scotland, maximising the potential benefits from the marine environment. The protection and enhancement of marine assets is a core aspect of the vision, with an aim to see Scotland's marine environment restored and sustainably managed to achieve good environmental status.

Soil

2.3.13 The topic of 'Soil' will be given consideration under the topic of 'Biodiversity, Flora, and Fauna'. As such, soil policy and protection objectives relevant to the assessment are set out below.

2.3.14 There are currently no legislative or policy tools developed specifically for the protection of soils, however there are several site designations for which the management agreements provide a mechanism to extend protection to soils. The protections aim to enhance biodiversity, geodiversity, cultural resources, and landform value.

2.3.15 Nature conservation MPAs, as designated under the 2010 Act and 2009 Act, may be created for the purposes of protecting marine habitats and features of geological or geomorphological interest. Similarly, SSSI^[46] are those areas of land and water that best represent Scotland's natural heritage in terms of its flora, fauna, geology, geomorphology, and/or a mixture of these natural features, as designated by Scottish Natural Heritage (now NatureScot) under the Nature Conservation (Scotland) Act 2004^[47]

2.3.16 Sea-floor integrity is included in the UK Marine Strategy^[48] as one of 11 descriptors used for the assessment of progress towards GES. This relates to benthic habitats, with a high-level objective of ensuring the health of seabed habitats is not significantly affected by human activities. Hydrographical conditions are also considered, noting that changes resulting from anthropogenic activities should not have significant long-term impacts on UK habitats and species.

2.3.17 Scotland's Geodiversity Charter^[49], which was launched by the Scottish Geodiversity Forum and supported by Scottish Government, sets out a vision for the protection of a resource vital to the environment, economy, heritage, and future sustainability^[50]. The marine environment is included as an area with valuable geodiversity/geo-heritage that should be conserved and enhanced through integration into policy and decision frameworks.

Water

2.3.18 The topic of 'Water' will be given consideration under the topic of 'Biodiversity, Flora, and Fauna'. As such, soil policy and protection objectives relevant to the assessment are set out below.

2.3.19 At the European level the Water Framework Directive (2000/60/EC)^[51] ("WFD") is a comprehensive framework for protecting, managing and improving Europe's water bodies, including rivers, lochs, transitional waters (estuaries), coastal waters, and groundwater dependent wetlands. The WFD requires an assessment of both chemical and ecological status for each individual waterbody with the goal of bringing all European waters to 'good ecological and chemical status,' which includes protecting biodiversity. The Marine Strategy Framework Directive (2008/56/EC)^[52] extends the requirements of the WFD beyond 1 NM.

2.3.20 Scotland fulfils its water protection obligations under the WFD and MSFD primarily through the Water Environment and Water Services (Scotland) Act 2003^[53] which defines the establishment of River Basin Management Plans (RBMP), the Water Environment (Controlled Activities) (Scotland) Regulations 2011^[54], and the Marine Strategy Regulations 2010^[55].

Climatic Factors

2.3.21 The Paris Agreement^[56] is a legally binding international treaty agreed by world leaders at the UN Climate Change Conference (COP21) in 2015, which came into force in 2016. The agreement sets out goals to substantially reduce greenhouse gas emissions to limit global temperature increases to a maximum of 2ºC, while pursuing an ideal limit of below 1.5ºC. To achieve these temperature increase limits a target of net zero by 2050 was set, with an interim reduction of emissions by 45% by 2030. The Glasgow Climate Pact^[57], a key outcome from COP26, called for countries to revisit and strengthen 2030 targets and associated actions required to achieve these.

2.3.22 The Climate Change (Scotland) Act 2009^[58] sets out the statutory framework for greenhouse gas (GHG) emissions reductions in Scotland. The Act was amended by the Climate Change (Emissions Reduction Targets) (Scotland) Act 2019 which increased interim reduction targets to 75% and 90% reduction (compared to the baseline) by 2030 and 2040, respectively^[59]. The 2019 Act also brought forward the target year for achieving net-zero emissions in Scotland (100%+ lower than the baseline) to 2045. The baseline refers to aggregate amounts of Scottish emissions of GHG in either 1990 or 1995, dependant on the GHG. The Climate Change (Scotland) Act 2009 also set out a duty for Scottish Ministers to lay a climate change plan and a programme for adaptation to climate change before Scottish Parliament.

2.3.23 Scottish Government's Climate Change Plan 2018-2032^[60] (updated 2020) sets out the framework for how the targets in the Climate Change Act 2019 can be achieved. The plan set out a need to harness the potential of Scotland's marine and wind resources for economic development and a transition away from fossil fuels.

2.3.24 Climate Ready Scotland: Climate Change Adaptation Programme 2019- 2024^[61] sets out an outcomes-based approach to adapting to climate change, including a set of outcomes related to the marine environment. Recognising the value of ecosystem services, e.g., carbon sequestration and climate regulation, in mitigating climate change the programme highlights the need to regulate and support such services. This approach seeks to ensure the coastal and marine environment is protected and enhanced, as well as being valued and enjoyed, and has increased resilience to climate change.

2.3.25 The 2010 Act specifies a duty for Scottish Ministers to take the best course of action to mitigate or adapt to climate change when exercising any function under the Act (consistent with the purpose of the function concerned).

Cultural Heritage

2.3.26 Historic MPAs are designated under section 67 of the Marine (Scotland) Act 2010^[62] with an aim to preserve and safeguard marine historic assets of national importance. Such assets include remains of vessels, structures relating to human activity such as trade by sea, caves, or deposits and artefacts that evidence previous human activity.

2.3.27 Our Place in Time: The Historic Environment Strategy for Scotland (2014)^[63] provides a high-level framework setting out a 10-year vision for Scotland's historic environment. The strategy seeks to ensure that Scotland's historic environment is protected and enhanced, recognising a desire to pass access to this environment on to future generations. In 2023 a new historic strategy for Scotland (Our Past, Our Future) was published^[64]. It sets out a national mission to sustain and enhance the benefits of Scotland's historic environment, for people and communities now and into the future.

2.3.28 The Culture Strategy for Scotland (2020)^[65] recognises that Scotland has a rich cultural heritage, with a wide range of cultural activities taking place across the country. The strategy recognises that engagement in culture takes many forms, including historic and traditional practices and a key aim of the strategy is to recognise each community's local cultures and how they generate distinct senses of place and identity.

2.3.29 The UNESCO Convention on the Protection of the Underwater Cultural Heritage (2001)^[66] sets out a framework to regulate interference with underwater cultural heritage in international waters. This has not been ratified by the UK Government. However, Annex to the 2001 Convention – Rules Concerning Activities Directed at the Underwater Cultural Heritage provides an accepted model of 'best practice' for underwater archaeology.

2.3.30 The Historic Environment Policy for Scotland^[67] (HEPS) is a policy statement for decision making for the whole of the historic environment and outlines six policies that define how the historic environment should be managed.

2.4 Finalisation and adoption of changes to MCO provisions

2.4.1 Proposals outlined here will be part of a public consultation, along with this Environmental Report. Following the public consultation, a Post-adoption Statement will be produced, demonstrating:

• how environmental considerations have been integrated into the proposals;
• how the environmental report has been taken into account;
• how the views of the consultation authorities have been taken into account;
• how the results of the consultation have been taken into account;
• the reason for choosing the proposals, as adopted, in the light of other reasonable alternatives considered; and
• the measures that are to be taken to monitor the significant environmental effects of the implementation of the proposals.

2.4.2 The proposals would amend the existing MCO provisions in the 2010 Act and would therefore need to be implemented via primary legislation in the Scottish Parliament. Any future MCOs proposed under the revised provisions would be implemented via secondary legislation.