Facilitating marine nature restoration through legislation: consultation

Overview

An Strategic Environment Assessment was prepared for elements of these proposals that were deemed to likely have a significant environmental impact. An Environmental Report has been prepared, which is being consulted on as part of this consultation.

Why we are consulting

Over the last few years we have seen a strong groundswell of interest from local communities across Scotland who want to take part in nature restoration in the marine environment. Restoration activity comes in many shapes and sizes, but most projects currently in the water in Scotland are small, community-led initiatives that undertake some form of habitat (re)creation or species reintroduction, for example by planting seagrass and placing native oysters on the seabed.

Community groups and stakeholders interested in undertaking restoration have highlighted two key challenges to the sector developing further:

• a difficult and complicated regulatory environment of licences, permits and consents needed for restoration activity; and
• lack of a clear mechanism to protect the habitats and species that are being restored.

We have listened to these concerns, and recognise that promoting and enabling communities to undertake responsible restoration in their local marine environment will be absolutely vital to reversing biodiversity decline in our seas and coasts. We also recognise that restoration activity needs to happen with due consideration for other uses of the sea. To address these issues, we are consulting on two legislative proposals:

1) To take powers to introduce a registration process for marine nature restoration projects that fall below a threshold of environmental impact, instead of having to apply for a marine licence

2) To enable Scottish Ministers to apply Marine Conservation Orders to protect habitats or species under restoration from potentially damaging activities.

In addition to these two proposals, we are consulting on two further amendments to the existing provisions for Marine Conservation Orders (MCOs). One would address an existing shortcoming with the provisions which means that currently MCOs can be used to protect a type of protected area known as a ‘European marine site’ only if such a site overlaps or adjoins a Marine Protected Area (MPA). European marine sites covers Special Areas of Conservation for habitats and species, and Special Protection Areas for wild birds, and not all overlap/adjoin MPAs. The other would simplify a technical element of the consultation procedure for these Orders.

We have developed these proposals in response to concerns from community groups around the difficulty of navigating the regulatory environment and the lack of protection available for restored habitats and species. We believe these concerns deserve to be taken seriously, and that supporting restoration is crucial for the health of our seas. That notwithstanding, we are aware that ‘communities’ are not one group with a single voice, but are made up of complex and diverse groups of people and interests. This is why we are consulting at a crucial stage of the policy development, and the views expressed in this consultation will be fundamental in allowing us to reach a decision on whether these proposals should be taken forward.

Structure

This consultation is structured into two Parts:

Part 1: Registration for restoration projects

Part 2: Amendments to the use of Marine Conservation Orders

Each part has an introductory section which sets out the general proposal, followed by sections with more detail and questions.

Throughout this consultation we will talk about primary and secondary legislation. Primary legislation is an Act of the Scottish Parliament. While being developed, an Act is referred to as a Bill; it becomes an Act of Parliament when it is passed. Secondary legislation is ‘delegated legislation’ made under the authority of primary legislation. Secondary legislation includes regulations and Orders, including Scottish Statutory Instruments. Scottish Ministers need powers in primary legislation to be able to make secondary legislation, and both are subject to consultation and Parliamentary scrutiny.

The proposals in this consultation will require some amendments to primary legislation, specifically the Marine (Scotland) Act 2010. These proposals will include powers to enable further implementation, with the details contained in secondary legislation. In this consultation we set out our current thinking about how these proposals would work in practice. We will make it clear in the relevant sections which part of the proposals will be developed further in secondary legislation and subject to further consultation.

The Marine (Scotland) Act 2010 covers Scotland’s marine inshore waters, meaning any area which is underwater at mean high spring water tide, out to 12 nautical miles (nm), and this is the area these proposals relate to.

How your views will be used

The feedback you provide in this consultation will help to decide whether these legislative proposals will be taken forward, and will influence further policy development on how the proposals can be best implemented.

There will be further opportunities to input into the development process. For the registration proposals the outcomes of this consultation, if supportive, will inform the first step of implementation, which is to introduce powers in primary legislation to enable the establishment of a registration process. We would then need to develop the secondary legislation which would set out the detail of how such a process is to be delivered. There will be another consultation in the future to inform that second step in the process.

For Marine Conservation Orders (MCOs), the changes we are proposing are also for primary legislation. There already exists a requirement to consult with users of the sea before any MCO can be put in place. In future, any MCO made using the proposed new powers would be subject to the same consultation requirement on the specifics of the proposal.