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

5 Results of the SEA

5.1 Introduction

5.1.1 The purpose of this section is to report the results of the SEA. At this stage, it has only been possible to undertake a high-level SEA to consider the type of impacts that could arise from any future implementation of MCOs under the revised provisions.

5.1.2 As outlined in section 3.5.11, 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).

5.1.3 Taking forward the proposals outlined will extend existing provisions of MCOs in the 2010 Act, enabling MCOs to be applied to:

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

5.1.4 This will provide a potential mechanism for management and therefore additional environmental protection over and above the existing legislation. As such, it is considered that the proposed legislative changes has the potential to lead to significant beneficial environmental effects.

5.1.5 A high level overview of the implications of extending MCO provisions on the topics and SEA objectives, is provided in this section. The approach to the assessment is outlined in section 3.5 and a summary of the assessment against each SEA topic and objective is given in Table 4.

5.1.6 As part of the assessment of reasonable alternatives which is a requirement of the 2005 Act, consideration has also been given in this section to the potential impacts that could arise from:

• "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.

5.2 Environmental effects

5.2.1 Extending provisions of MCOs in Scottish inshore waters has the potential to have significant environmental effects through the potential future management of certain marine activities. 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. Future making of MCOs under the extended provisions could therefore apply to a wide range of marine uses and sectors. As outlined in section 2.2.4, MCOs can manage a wide range of activities through a single regulatory mechanism. They can also be brought in as an emergency order, therefore enabling rapid protection of habitats and species where appropriate.

5.2.2 Section 86 of the 2010 Act^[173] 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.

5.2.3 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 the displacement of activities from MCO boundaries into new areas and the intensification of activities in areas where these activities already occur.

Potential benefits

5.2.4 Evidence of potential environmental impacts of a wide range of marine activities is available from the FeAST^[82] and PAD^[174] tools. It is recognised that enhanced protection and targeted management measures can bring environmental benefits. MCOs would enable management of a number of pressures and/or reduce the magnitude of current pressures (or future pressures) if required. As discussed in section 5.3, there are some existing mechanisms available for the management of activities (e.g., fisheries), but these offer less flexibility than MCOs.

5.2.5 As outlined in section 4.3.39, in the longer term, continuing pressures from development of marine industry and wider human activities such as fishing or recreation are likely to be the key factors in driving changes from the current baseline. This includes effects from fishing practices, coastal development and other activities in the marine environment (recreation, aquaculture, anchoring, commercial shipping, dredging etc.).

5.2.6 In generic terms, the adoption of the proposed extensions to existing MCO provisions would potentially result in overall beneficial effects on the overarching topic Biodiversity, Flora and Fauna, (including the topics Soil and Water) and contribute to the achievement of the SEA objectives because it would be possible for MCOs to be made in evidenced circumstances to manage damaging marine activities in standalone European marine sites (i.e. those which do not overlap or adjoin spatially with an MPA) and to protect nature restoration and enhancement projects. This will allow for ecosystem recovery and biodiversity enhancement.

5.2.7 In terms of fishing impacts, wider evidence of the benefits of enhanced management is available for tropical and warm temperate regions^[175], but evidence has also been gathered from cooler temperate regions. For example, surveys undertaken, in Lamlash Bay, Isle of Arran have shown that live maerl (Phymatolithon calcareum), macroalgae, sponges, hydroids, feather stars and eyelash worms (Myxicola infundibulum) to be significantly more abundant within the area of management than on surrounding fishing grounds^[176]. Similarly, following a closure of some fishing activity in Lyme Bay to protect the temperate reef communities, studies showed that within three years, positive responses were observed for species richness, total abundance, assemblage composition and seven of thirteen indicator taxa studied^[177].

5.2.8 A review of the effectiveness of measures to manage fishing activity of relevance to MPAs in Scotland^[178] found that existing knowledge justifies the need for management, but recognised that adequate timescales need to be allowed for detecting and evaluating change. Case studies from older MPAs such as the increasing infaunal species richness in Skomer MCZ and the diverse algal community resilient to invasive species in Californian MPAs, illustrated it can take decades to see positive changes in some habitats and species^[178].

5.2.9 Change in pressures within MCO areas may also result in the potential for spillover benefits beyond the boundaries of the managed area. Spillover occurs when there is a population surplus in the newly protected area and the carrying capacity of that area is surpassed. As the protected area cannot support all of the individuals present, a migration away from the more densely populated area will occur and this movement may be outwith the area of management. This migration can result in a net increase in the number of marine species outwith the area^[179].

5.2.10 There is, however, variation in the level of effectiveness and scale of benefits that removal of an activity can have and these are site dependent^[180],^[181]. The current conditions encountered within an area (e.g. current stock level, species present, nursery and spawning areas for those species, and level of activity/pressure prior to management being implemented) need to be characterised in order to be able to undertake a detailed assessment of the potential for spillover benefits to occur.

5.2.11 In terms of wider marine activities, the 2010 Act provides the regulatory framework for marine licensable activities in Scottish inshore waters, including the requirement to obtain a marine licence for certain types of activity (e.g., construction or deposition activities). The marine licensing process supports the sustainable use of the marine environment, ensuring activities which require a licence do not harm the environment, impact on human health, or interfere with other legitimate uses of the seas^[182]. Any potential impacts to an MCO from a proposed licensable activity would be considered in the determination of a licence application. This may help to reduce pressures associated with marine licensable activities in the areas of MCOs, particularly for restoration projects.

5.2.12 The extended MCO provisions will also have beneficial effects to the SEA topic of Climatic Factors. The management of areas that include blue carbon habitats (such as seagrass, saltmarsh, kelp beds, biogenic reefs and sedimentary stores^[183]) could contribute to the achievement of the Climatic Factors SEA objective. These habitats can be found in European marine sites and may also be a focus of restoration projects, but currently are not afforded the option of management via MCOs. A study which investigated the effects of marine conservation on carbon sequestration found significant increases in carbon sequestration in preserved or restored seagrass^[184]. Similarly, the study showed that sediments in untrawled seabed sequestered significantly more carbon than areas exposed to trawling.

Neutral effects

5.2.13 In terms of the Cultural Heritage SEA objective, current powers in the 2010 Act enable MCOs to be made for "furthering the stated preservation objectives for a Historic MPA". The extended MCO provisions do not broaden the application of MCOs to other cultural heritage features. Whilst there could be indirect benefits if other cultural heritage features are located in the same area as an MCO, effects to the Cultural Heritage objective have been assessed as neutral, due to the current uncertainty in location of any future MCOs.

Potential adverse effects

5.2.14 Potential adverse effects may result from the displacement of activities from MCO boundaries into new areas and the intensification of activities in areas where these activities already occur. The scale of the impact and the sector impacted by the displacement would be dependent on the specifics of any management measures implemented using the proposed extended MCO provisions.

5.2.15 In terms of restoration and enhancement projects, the scale and nature of projects to date have very limited potential for displacement effects. The Scottish Marine Environmental Enhancement Fund (SMEEF) facilitates investment in marine and coastal enhancement in Scotland and has mapped current marine restoration projects in Scotland^[185]. These are currently predominantly located inshore, in shallow water focusing on habitats and species such seagrass and native oyster. However, there has been some interest in horse mussels and further species and habitats may be looked at in future.

5.2.16 In situations where displacement of activities may occur (either to restoration and enhancement projects or to standalone European marine sites), these could result in potential adverse environmental effects in other areas, where such activities are not managed. The risk of this would depend on the nature and scale of any proposed MCO, and the ability of the sector to adapt, given other potential restrictions they may be under. There is potential for transboundary effects on EU Member States if activities are displaced outwith areas under Scottish jurisdiction.

5.2.17 The spatial demands on the marine environment are resulting in 'spatial squeeze' of established sectors, particularly fishing, which finds its traditional grounds under increasing competition from other sectors^[186]. Given the high level nature of this assessment, it has not been possible to undertake a displacement analysis of fishing effort, but available literature has been drawn on to inform this assessment.

5.2.18 Spatial squeeze on the fishing industry arises from a number of different sectors and regulations, including fisheries management-related measures and closed areas. Those with the largest spatial footprint are:

• Nature conservation such as restrictions on fishing in protected areas; and
• Offshore renewable energy development (particularly offshore wind)^[186].

5.2.19 Both gear-related and spatial displacement of fishing effort can impact on the marine environment^[187]. The spatial displacement of fishing from existing fishing grounds may have knock-on effects on the areas to which effort is displaced to, leading to possible conflict with other fleet segments and greater potential environmental impacts at these locations^[186]. The effect of displacement on habitats and benthic communities depends on the sensitivity of the habitat where effort is displaced to, the gear type displaced, the level of fishing in the area prior to displacement and the relative change in fishing pressure compared to the baseline and to prevailing levels of natural disturbance^[187]. Displacing fishing effort to an already heavily-fished area (by the same gear type) causes relatively little additional mortality of benthic invertebrates. However, displacing fishing effort to lightly-fished or unfished areas may cause substantial additional mortality of benthic invertebrates, because the initial effects of fishing on benthic community biomass, productivity and diversity are the greatest^[188].

5.2.20 Understanding is developing regarding the full ecological effects resulting from changes to management practices and enhanced protection. Effects will also vary between features of interest and the activities of focus for management. For example, negative effects can be experienced for some species where management measures result in an increase in predator numbers and size. This can cause a reduction of some prey species (e.g., reductions in sea urchin numbers as a result of increases in rock lobsters^[189]).

5.2.21 In terms of non-fishing sectors, any MCOs implemented in future using the extended provisions could have implications for new or existing activities, which could in turn lead to displacement of these activities. As with fishing activity, the risk of this would depend on the nature and scale of any proposed MCO, and the ability of sectors to adapt (given other potential restrictions they may be under). For example, cables can often be micro-sited to avoid sensitive habitats or species. Whilst a reduction in pressures would bring benefits to the area protected by the MCO, the marine area that the activity/development is relocated to could be adversely impacted. Where required, licensing regimes (such as marine licensing) would help to identify avoidance, mitigation, and compensation measures to any identified environmental impacts. This would help to manage any potential negative impacts to areas that the activity/development is relocated to bringing a small risk of negative environmental effects.

5.2.22 Potential adverse effects could be experienced to the SEA topic of Climatic Factors if the area of displaced activity includes blue carbon habitats. Several marine activities (e.g. fishing, deep sea mining, oil and gas activities and renewable energy development) physically disturb the seafloor. As previously stated (section 4.6.17), any physical damage caused to a habitat has the potential to disturb, remove or release any carbon held within that store. Similarly, negative effects could be experienced to cultural heritage features if these are located in the area of displaced activity. As outlined in section 4.7.2, there is considerable uncertainty on the location, extent, and status of many subtidal marine historical assets.

Summary of effects

5.2.23 Overall, the environmental benefits of enhanced protection that will result from the extended MCO provisions are anticipated to be greater than the adverse environmental impacts associated with potential displacement of activities.

5.2.24 The impacts are summarised against each SEA objective at a qualitative level in Table 4 below.

5.3 Reasonable alternatives

5.3.1 Further to the potential benefits of the proposed extended MCO provisions, a high level assessment of the potential environmental effects that may arise from the below reasonable alternatives are also considered:

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

"Do nothing" scenario

5.3.2 In the "do nothing" scenario, management options for European marine sites would remain as they are currently. The future evolution of baseline identified in sections 4.3 to 4.7 would be expected to occur, but the level of this would be dependent on the extent to which currently existing management mechanisms are used. The Inshore Fishing (Scotland) Act 1984^[190] and the Sea Fish (Conservation) Act 1967^[191] provide powers to prohibit sea fishing in specified areas. An example is The Inshore Fishing (Prohibition of Fishing and Fishing Methods) (Scotland) Order 2015^[192] which restricts certain fishing activities in specified MPAs, including SACs. Fishing can also be managed through modifications to fishing licences.

5.3.3 MCOs however allow more flexibility in specifying prohibited activities^[193], and MCOs can address any type of activity which may impact upon the conservation objectives, rather than just fishing activities. For example, the Red Rocks and Longay MCO 2022^[194] restricts and prohibits a wide range of activities (including fishing, diving, dredging, construction and anchoring) to protect flapper skate and their eggs. This demonstrates how MCOs can be used to regulate a suite of activities under a single regulatory mechanism, if necessary^[195]. Under the "do nothing" scenario MCOs would not be available as a management mechanism for standalone European marine sites. As outlined above, while there are alternative mechanisms available to introduce fisheries management measures these cannot be used to manage other activities in these areas, including activities that do not require a licence or a permit such as recreation, diving, and anchoring in some instances.

5.3.4 Similarly, under a "do-nothing" alternative, powers would not be extended to nature restoration and enhancement projects. D&R MPAs are available to promote the 'demonstration of sustainable methods of marine management or exploitation' or 'research into such matters'. A proposal must meet certain criteria laid down by the Scottish Government, including demonstrating the novelty of the proposed investigation, how the proposal fits within broader national objectives and whether there is sufficient support from stakeholders^[195]. Not all nature restoration and enhancement projects will be able to meet the requirements for D&R MPA designation, therefore leaving them vulnerable to damage. This can have the effect of disincentivising positive actions for nature recovery to be taken.

Seeking to secure outcomes through voluntary mechanisms or guidance approaches

5.3.5 Voluntary mechanisms and guidance approaches can be explored prior to the implementation of any MCOs under the proposed new provisions. The proposed extensions to the existing provisions however would enable the use of an appropriate and flexible regulatory mechanism if required. Given the increased spatial squeeze and competing use of the marine environment, sole reliance on voluntary mechanisms and guidance approaches is unlikely to achieve nature restoration ambitions.

5.4 Cumulative effects

5.4.1 Cumulative effects have not been identified for the proposed extensions to the MCO provisions themselves. There is the potential for cumulative effects to arise from the implementation of the proposed extension to MCO provisions (i.e., the making of individual MCOs under secondary legislation) as a whole and also alongside other plans, programmes, and strategies likely to be undertaken in Scottish seas.

Cumulative effects of changes to MCO provisions as a whole

5.4.2 In terms of the combined effects associated with the proposed extensions to MCO provisions, the benefits would be additive, the scale of which would depend on the number, spatial area, and details of the management brought forward from any MCOs made under the extended provisions.

5.4.3 The scale of the displacement of activities to other areas, where such activities are not managed, as a result of any MCOs made under the proposed extended provisions would also depend on the spatial area of the MCO and the level of 'spatial squeeze' from other activities occurring at the time.

Cumulative effects of changes to MCO provisions with other plans, programmes and strategies

5.4.4 Scotland's National Marine Plan 2 is currently under development and an SEA scoping report has been undertaken^[196]. As this assessment has not yet been undertaken, it is not possible to identify in detail potential cumulative effects.

5.4.5 A new round of fisheries management measures is due to be assessed under the SEA provisions (and consulted upon) for the remaining inshore MPAs (where management is not already in place), as well as PMFs identified as most at risk from bottom-contacting mobile fishing gear outwith MPAs. There could be cumulative beneficial effects from enhanced protection as well as cumulative adverse effects from potential displacement of fishing activity.

5.4.6 The proposed fisheries management measures for offshore MPAs which have recently been assessed under the SEA provisions could potentially interact with the implementation of the proposals, although this is recognised to be limited, as the proposed extension to MCO provisions would apply only to Scottish territorial waters, (i.e. within 12 NM), rather than offshore (i.e. beyond 12 NM). Overall, the proposed measures for offshore MPAs are assessed as having a beneficial impact for the overarching topic Biodiversity, Flora and Fauna. In terms of adverse effects for offshore MPAs measures, the effects from displacement of fishing activities are assessed as generally being minor. Overall, the potential combined adverse effects from displacement or increased fishing effort from the offshore MPAs are not considered significant and are unlikely to interact with the implementation of proposed extensions to MCO provisions.

5.4.7 There is the potential for cumulative impacts to also arise from the implementation of proposed extension to MCO provisions alongside the Sectoral Marine Plan for Offshore Wind Energy, as well as the Sectoral Marine Plan (SMP) for Innovation and Targeted Oil & Gas Decarbonisation^[197], both currently undergoing SEA assessment. There may be cumulative negative effects of displacement (if fishing activity is displaced from areas of offshore wind development).

5.5 Mitigation and monitoring

5.5.1 Monitoring is an important component of SEA, as it seeks to ensure that plans avoid generating unforeseen adverse environmental effects. UK Government planning policy guidance^[198] advises that details of monitoring arrangements may be included in the report, the post-adoption statement or in the plan itself. Monitoring arrangements should be sufficient to enable any unforeseen adverse effects to be identified at an early stage and to enable appropriate remedial actions.

5.5.2 Overall, there are no anticipated significant adverse environmental effects from the proposed extensions to existing MCO provisions, with potential adverse effects related to displacement activities through implementation likely to be less than the environmental benefits of increased protection through the making of any MCOs.

5.5.3 Any MCOs proposed in future would be subject to the consultation processes set out under existing provisions of the 2010 Act and would need to include consideration of the socio-economic impacts of introducing an MCO. The Environmental Report has not identified any additional factors beyond those addressed in policy-making that would need to be monitored.

5.5.4 If a monitoring strategy were to be developed, it should be undertaken in a proportionate manner, with existing data sources, environmental indicators, and monitoring programmes being utilised where possible. It should be noted however, that environmental benefits of enhanced marine protection can take many years in some cases to be measurable.

5.5.5 Final proposals for mitigation and suggested monitoring will be provided in the Post Adoption Statement. These will focus on the environmental effects identified in this assessment.

5.6 Conclusions

5.6.1 The proposed extensions to existing MCO provisions under the 2010 Act fall under Section 5(4) of the 2005 Act and are therefore subject to SEA. 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. 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.

5.6.2 In the longer term, continuing pressures from development of marine industry, human activities are likely to be the key factors in driving changes from the current environmental baseline. This includes effects from fishing practices, coastal development and other activities in the marine environment (recreation, anchoring, aquaculture, commercial shipping, dredging etc.).

5.6.3 In generic terms, the adoption of the proposed extensions to existing MCO provisions would potentially result in overall beneficial effects on the overarching topic Biodiversity, Flora and Fauna (including the topics Soil and Water) and contribute to the achievement of the SEA objectives because it would be possible for MCOs to be made in evidenced circumstances to manage damaging marine activities in European marine sites and to protect nature restoration and enhancement projects. This will allow for ecosystem recovery and biodiversity enhancement.

5.6.4 As discussed in section 5.3, there are some existing mechanisms available for the management of fisheries activities, but these offer less flexibility than MCOs. For certain activities (e.g., construction or deposition activities), protection is also afforded through the marine licensing regime. In terms of wider non-permitted/non-licensed activities (e.g., e.g., recreation, diving, and anchoring in some circumstances) there are currently fewer tools available for management.

5.6.5 The management of areas that include habitats that are blue carbon habitats (such as seagrass, saltmarsh, kelp beds, and biogenic reefs) could contribute to the achievement of the Climatic Factors SEA objective.

5.6.6 The proposed extensions to existing MCO provisions would not broaden the application of MCOs to other cultural heritage features and effects have therefore been assessed as neutral.

5.6.7 Potential adverse environmental effects may result from the displacement of activities from any MCO boundaries into new areas and the intensification of activities in areas where these activities already occur. The scale of the impact and the sector impacted by the displacement would be dependent on the specifics of any management measures implemented using the proposed extended MCO provisions. Displacement of activities could result in potential adverse environmental effects in other areas, where such activities are not managed. The risk of this would depend on the nature and scale of the implemented MCO, and the ability of the sector to adapt. There is potential for transboundary effects to occur on EU Member States if activities were displaced outwith areas under Scottish jurisdiction.

5.6.8 In summary, the implementation of the proposed extensions to MCO provisions to standalone European marine sites and to nature restoration and enhancement projects has been assessed to result in:

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

5.6.9 Overall, the environmental benefits of enhanced protection that will result from the extended MCO provisions are anticipated to be greater than the adverse environmental impacts associated with displacement of activities.

5.6.10 In accordance with the 2005 Act, consideration has also been given to reasonable alternatives of:

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

5.6.11 Under the "do nothing" scenario MCOs would not be available as a management mechanism to standalone European marine sites, and similarly, powers would not be extended to nature restoration and enhancement projects. Whilst other management options are available (e.g., using powers in the Inshore Fishing (Scotland) Act 1984 for fisheries management, or designating D&R MPAs for nature restoration and enhancement projects), these do not offer the same flexibility of MCOs, which can address a greater range of activities which may impact marine habitats and species.

5.6.12 Voluntary mechanisms and guidance approaches could still be explored prior to the implementation of any MCOs under the proposed new provisions. The new proposed provisions however would enable the use of an appropriate and flexible regulatory mechanism if required.

5.6.13 In terms of cumulative effects, the benefits would be additive, the scale of which would depend on the number, spatial area, and details of the management brought forward from any MCOs made under the extended provisions. The scale of the displacement of activities to other areas, where such activities are not managed, as a result of any MCOs made under the proposed extended provisions would also depend on the spatial area of the MCOs and the level of 'spatial squeeze' from other activities occurring at the time.

5.6.14 When considering cumulative effects with other plans, programmes, and strategies, there could be cumulative beneficial effects from enhanced protection as well as cumulative adverse effects from potential displacement of fishing activity (e.g., from fisheries management measures being considered for inshore MPAs and PMFs, currently under assessment).

5.6.15 There are no anticipated significant adverse effects on the environment from the proposed extensions to existing MCO provisions, with adverse environmental effects related to displacement of fishing activity through potential implementation likely to be less than the environmental benefits of increased protection that will result from the making of any MCOs.