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

3 Approach to the Assessment

3.1 Purpose of the assessment

3.1.1 The purpose of the SEA is to assess the potential for likely significant environmental effects (positive or negative) that may arise from changes to the application of Marine Conservation Order provisions (MCOs) under the 2010 Act. Reforms seek to extend the powers of the Scottish Ministers to make MCOs in Scottish inshore waters (0-12 NM). Undertaking this SEA allows corresponding mitigation measures to be identified where necessary and highlights opportunities for enhancement in cases where beneficial effects are likely.

3.2 Scope of the Proposal

3.2.1 The aim of the proposal would be to extend the powers available to Scottish Ministers to make MCOs in Scottish inshore waters (0-12 NM), addressing shortfalls in the existing MCO provisions within the 2010 Act of:

• MCOs cannot be applied to standalone European marine sites (i.e. those which do not overlap 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; and
• MCOs cannot be applied to protect marine restoration projects.

3.2.2 The proposal would therefore:

• Provide a means for all European marine sites to be protected by MCOs if necessary; and
• Provide a means for nature restoration and enhancement activities to be safeguarded by MCOs if necessary.

3.2.3 The geographical scope of the proposed reforms extend up to Mean High Water (MHW) springs, and therefore also include intertidal elements.

3.2.4 It is only possible to undertake a high-level SEA at this stage to consider the types of impacts that could arise from any future implementation of MCOs.

3.2.5 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.

3.3 Scope of the Assessment

3.3.1 The scope will focus on the potential beneficial effects of the proposal, the potential for spillover effects beyond the location of the areas where MCOs are made, any cumulative effects arising from interactions with other comparable policies or legislative reforms, and potential negative effects resulting from the displacement of activities to other habitats and species outside the area of an MCO.

3.3.2 The scope of the assessment has been undertaken with consideration of the environmental topics set out in Schedule 3 of the 2005 Act^[68]. A review of these topics suggests that potentially significant effects would focus on Biodiversity, Soil, Water, Climatic Factors (including marine carbon sequestration/ blue carbon processes) and Cultural Heritage.

The rationale for scoping in and out each of the SEA topics is set out in Table 1.

3.3.3 Consultation responses on the Screening and Scoping Reports have been reviewed and where appropriate have been built into the scope and methodology of the assessments.

3.4 Consideration of Reasonable Alternatives

3.4.1 In accordance with the 2005 Act, there is a requirement to consider reasonable alternatives that fulfil the objective of the plan as part of the SEA. The reasonable alternatives that have been identified as part of the development of legislative reforms have been assessed.

3.4.2 The rationale for implementing individual MCOs would be specific to the area under consideration (in relation to the habitats, species and conservation interest present) and the anthropogenic pressures that it may be experiencing.

3.4.3 Given that spatially specific areas within which MCOs may be applied under these proposed extended provisions have not yet been identified, reasonable alternatives are considered to be as follows:

• "Do nothing", i.e. keep the provisions of the 2010 Act as they are currently
• Seeking to secure outcomes through voluntary mechanisms or guidance approaches.

3.5 Assessment Methodology

Assessment of potential effects

3.5.1 Based on the available data and strategic nature of SEAs, a high level, qualitative desk-based assessment of potential likely significant effects of the proposal has been undertaken which compares the potential impacts against the receiving environment.

3.5.2 The assessment of potential likely significant benefits has considered how environmental pressures will reduce as a result of the proposed legislative reform. The assessment of potential likely significant negative environmental effects has considered information on current/ recent activity and an indication of potential displacement levels.

3.5.3 The assessment has involved gathering evidence-based assumptions on potential positive or negative environment impacts on the wider environment before describing and quantifying those effects identified.

3.5.4 The assessment has drawn on a number of different sources of information, including:

• Spatial information, such as that gathered using Scottish Government's Geographic Information System (GIS);
• Research studies relating to the benefits of enhanced marine protection measures;
• The results of any previous SEA work that is directly/ indirectly applicable to the legislative proposals;
• Published guidance from other UK Government or associated bodies; and
• Monitoring information from previous or ongoing strategies and plans that relate to the legislative proposals.

3.5.5 The key potential environmental effects or impact pathways that are likely to arise from the proposed legislative reforms are as follows:

• Potential benefits to marine biodiversity and the marine ecosystem;
• Potential spillover benefits beyond MCO boundaries; and
• Potential adverse effects resulting from possible displacement of activities from MCO boundaries into new areas and the intensification of activities in areas where these activities already occur.

3.5.6 The assessment of potential benefits to marine habitats and species has considered in generic terms how the pressures on the marine environment might reduce as a result of the adoption of the policy reforms and reasonable alternatives.

3.5.7 The assessment of potential for spillover benefits beyond MCO boundaries has considered how the change in pressures within MCOs might result in spillover benefits taking account of the latest available evidence.

3.5.8 Section 86 of the 2010 Act^[69] 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.

3.5.9 For the assessment of adverse environmental effects, a high level qualitative review of activities that might be displaced and the potential implications of that displacement on the marine environment has been undertaken.

3.5.10 The assessment has included consideration of the potential for transboundary effects on EU Member States if displacement of activities occurs outwith areas under Scottish jurisdiction.

Assessment criteria

3.5.11 For the purposes of this assessment, only indicative criteria to define the nature or type of potential effects that may result from the proposal and reasonable alternatives have been used (i.e. beneficial, adverse or neutral). It is not possible to determine the potential scale/magnitude of these effects in advance of designating any MCOs under the proposed new powers, and undertaking a spatial analysis of site specific information.

SEA objectives

3.5.12 The potential implications of the proposed legislative reforms and reasonable alternatives have also been assessed against SEA objectives. The SEA objectives that have been applied in this assessment are presented in Table 2.

Table 2 SEA objectives

3.6 Building on previous assessments

3.6.1 This SEA builds on previous and ongoing SEAs that have been undertaken on marine conservation work by the Scottish Government. This includes the following:

• the designation of nature conservation MPAs (assessed in 2013)^[70];
• phase one fisheries management proposals for inshore MPAs (assessed in 2014);^[71]
• the designation of an additional suite of marine SPAs (assessed in 2018)^[72] ;
• the designation of four additional MPAs (assessed in 2019)^[73];
• the designation of the West of Scotland MPA (assessed in 2019)^[74];
• 2018 proposals for management measures applying to PMFs^,[75]; and
• Proposals for management measures applying to PMFs and inshore MPAs (currently under assessment).

3.6.2 The proposed extensions to existing MCO provisions would interact with and support the potential future development of a marine restoration plan and policy guidance, which would have the overarching aim of streamlining the process for restoration activities. The restoration plan would be subject to a separate SEA.

3.6.3 Other relevant sources of information may include the SEAs undertaken on the Sectoral Marine Plans for Offshore Renewable Energy in Scottish Waters^[76], the more recent Sectoral Marine Plan for Offshore Wind Energy^[77], Sectoral Marine Plan for Offshore Wind for Innovation and Targeted Oil and Gas Decarbonisation (INTOG)^[78], Management Proposals of Inshore Fisheries Groups^[79], and the Wild Seaweed Harvesting SEA^[80].

3.6.4 As some of this SEA work is ongoing, these concurrent assessments have been used to inform the current assessment as far as possible, providing a more complete understanding of cumulative effects in particular.

3.7 Cumulative Effects Assessment

3.7.1 Cumulative effects assessments present significant methodological challenges owing to limitations of data availability from other plans and programmes, and uncertainties in where future MCOs may be applied. The cumulative effects assessment has focused on the legislative proposals for the broadened application of MCOs, and not specific areas of their application. Other plans, programmes, and strategies that may similarly impact key environmental receptors have been included, such as proposals for management measures applying to PMFs and inshore MPAs (currently under assessment).

3.8 Mitigation and Monitoring Proposals

3.8.1 The identification of mitigation measures is an integral part of the SEA and policy development processes. Proposals for monitoring will be provided in the Post Adoption Statement. These will focus on the significant environmental effects identified in this assessment.