EU Exit: marine environmental legislation in Scotland

Annex 1 - Interpreting existing guidance

Term: Conservation Objectives

Interpretation

None required

Notes

This term is being retained.

Term: European Economic Area (EEA) States

Interpretation

References to EEA States should be read as no longer including reference to the United Kingdom

Notes

Legislation that implements the requirements of the EIA Directive has been amended so that references to 'another EEA State' are now read as references to 'an EEA State'. This ensures that requirements to notify EEA States of proposed projects likely to have significant transboundary effects remain in place.

Term: Environmental Impact Assessment (EIA)

Interpretation

None required

Notes

This term is being retained.

Term: The European Commission

Interpretation

References to any role of the European Commission should be read as the appropriate authority (the appropriate authority will depend on the Regulations being referred to)

Notes

Amendments to the Habitats Regulations transfer functions previously carried out by the European Commission (for example giving opinions relating to considerations of overriding public interest) to appropriate authorities. The 'appropriate authority' varies depending where and what the Habitats Regulations apply, but as a general rule it is Scottish Ministers for devolved matters related to Scotland.

Term: European protected species' or 'EPS'

Interpretation

None required

Notes

This term is being retained and will continue to refer to European Protected Species as listed in Annex IV of the Habitats Directive.

Term: European sites

Interpretation

None required

Notes

This term is being retained and will continue to refer to sites already designated at the time of exit as well as any new sites brought forward under the appropriate regulations after EU exit. European sites now form a UK-wide network of protected sites,^[31] as defined in the 1994 Regulations (as amended).

Term: European marine site / European offshore marine site

Interpretation

None required

Notes

These terms are being retained and will continue to refer to marine SACs and SPAs already designated at the time of exit as well as any new sites brought forward under the appropriate regulations after EU exit. Scotland's European marine sites and European offshore marine sites now form part of the UK-wide network of protected sites,^[32] as defined in the 1994 Regulations (as amended).

Term: Favourable Conservation Status or 'FCS'

Interpretation

None required.

Notes

The use of the term Favourable Conservation Status will not change and the term still has the meaning given by Article 1 of the Habitats Directive.

Term: Habitats Regulations Appraisal/Appropriate Assessment or 'HRA'

Interpretation

None required

Notes

This term is being retained and will retain its current meaning as UK leaves the EU. Associated terms and processes are being retained such as 'likely significant effect' and 'appropriate assessment' and these continue to mean the same thing as before.

Term: Imperative reasons of overriding public interest or 'IROPI'

Interpretation

None required

Notes

The phrase and processes associated with imperative reasons of overriding public interest in relation to plans or projects in SACs or SPAs still apply. Amendments to the Habitats Regulations have transferred functions previously held by the European Commission to the appropriate authority/relevant administration in the UK (generally speaking, the Scottish Ministers for devolved matters relating to Scotland, but the relevant legislation should be referred to for the avoidance of doubt). Readers of guidance will need to be mindful of this if there are references to the role of the European Commission.

Term: Member State

Interpretation

References to 'Member State' or 'Member States' should be read as though it includes reference to the United Kingdom.

References to another 'Member State' should be read as 'a Member State'.

Notes

Depending on the context, references to 'Member State' should now be read as referring to the appropriate authority, competent authority, or statutory nature conservation body within the UK, depending on the obligation.

Depending on the context of the term's use in documentation, references to 'another Member State' should be read as 'a Member State.'

Term: Natura sites or Natura 2000 Network

Interpretation

References to the Natura 2000 network should be read as references to the UK site network.

Notes

The UK site network^[33] means the network of SACs and SPAs in the UK's territory consisting of Natura 2000 sites designated before exit day and any European Sites, European Marine Sites and European Offshore Marine Sites designated after EU Exit.

Term: Secretary of State

Interpretation

References to the Secretary of State may need to be read as references to the relevant administration.

Notes

Depending on the context of the term's use in documentation, some references to the Secretary of State in relation to the Conservation of Offshore Marine Habitats and Species Regulations 2017 should now be "the relevant administration." In relation to devolved matters in Scottish offshore waters, the 'relevant administration' usually means the Scottish Ministers, but the relevant legislation should be referred to for the avoidance of doubt.

Term: Site integrity

Interpretation

None required

Notes

This term is not currently defined in the Habitats Regulations or the Habitats Directive but is described in domestic and EU guidance and is central to the assessment provisions of the Habitats Regulations (and consequentially, all Conservation Objectives). The term will continue to be used.

Term: Site of Community importance or 'SCI'

Interpretation

References to Sites of Community Importance will need to be read as 'Site of national importance'

Notes

Amendments have been made to the Habitats Regulations so that the appropriate authority will now designate as SACs sites that they consider to contribute significantly to the achievement of favourable conservation status in their natural range of habitats listed in Annex I or species listed in Annex II of the Habitats Directive, and to the maintenance of biological diversity within the Atlantic biogeographic region.

Term: Special Protection Area or 'SPA'

Interpretation

None required

Notes

This term is being retained and will continue to refer to sites already classified at the time of exit and new sites classified under the appropriate regulations after EU exit. SPAs now form part of the UK site network,^[34] as defined in the 1994 Regulations (as amended).

Term: Special Area of Conservation or 'SAC'

Interpretation

None required

Notes

This term is being retained and will continue to refer to sites already designated at the time of exit and new sites designated under the appropriate regulations after EU exit. SACs now form part of the UK site network,^[35] as defined in the 1994 Regulations (as amended).

Term: References to EU Directives, including general references, or references to specific provisions of Directives

Interpretation

References to provisions of Directives may need to be read differently.

Notes

References to EU Directives are references to those Directives as at exit day. These references continue to work, however, in a number of cases amending legislation set out how the Directives should be read so that the provisions make sense now that the UK is not part of the EU. Users of guidance will need to be mindful of this. For example, references to 'Member State' or 'Member States' within Directives should be read as though this includes reference to the United Kingdom.

Term: References to legislation implementing the requirements of EU Directives

Interpretation

References will need to be read as the latest version of the legislation, including any amendments made to ensure operability after EU exit.

Notes

Environmental legislation, including instruments implementing requirements of various EU Directives, has been amended to ensure it continues to operate. References to specific pieces of legislation will need to be read as the latest version of that legislation (i.e. as amended). This will apply to various instruments, including those transposing the Habitats and Wild Birds Directives, the EIA Directive and the Marine Strategy Framework Directive.