Facilitating marine nature restoration through legislation: consultation

Setting the scene

Before we set out the proposals in detail in Part 1 and 2 below, we want to provide an overview of how these fit into the wider context of marine nature restoration and other legitimate uses of the sea.

What is restoration and why do we want more of it?

Scotland has an amazing diversity of animals, plants and organisms in our marine environment. Clean, healthy and productive seas are essential to our prosperity as a nation and livelihoods of our coastal communities. However, our natural environment is increasingly under pressure. Restoring marine habitats and species, for example by planting seagrass meadows or restoring native oyster beds, is an important tool to try and reverse environmental decline. Thriving ecosystems are crucial in improving our resilience to climate change.

Restoration can improve not only the species and habitats targeted, but can also have wider ecosystem benefits for example by providing nursery habitats for other species, and improve the overall abundance of fish and other organisms in the sea. Restoration ensures that we can continue to benefit from the sea for our food security and economic opportunities through sustainable fisheries.

The purpose of restoration is to improve the quality, size or geographic distribution of a habitat or species. Seagrass planting and native oyster restoration are the two most popular types of restoration in Scotland in the moment. However, there is also interest in other kinds like saltmarsh replanting and restoring mussel beds. We expect the variety of species and methods to restore them to develop further in the next decade as the sector develops.

Restoration of habitats and species is recognised internationally as a necessity for restoring the health of our natural capital and the ecosystem services we rely on for our benefit and welfare. It is a vital ingredient in our efforts to reverse biodiversity decline and is expressly undertaken to benefit the environment.

Restoration plan: where should restoration happen?

While there is significant and growing interest in undertaking restoration in the marine environment, only a relatively small number of projects are currently taking place across Scotland. We want this sector to scale up significantly in the next decade to help improve and support the quality of our coastal and marine ecosystems.

We are very aware that the marine environment is already a busy place, and understand other users of the sea like fisheries may have concerns that this represents yet another demand for use of marine space. Restoration is currently very small scale, can in many cases be co-located with other uses of the sea, and often takes place in shallow intertidal areas. However, this may not be the case for all restoration as it develops further, so it is important to consider how this may in future impact other uses of the sea.

There is an increasing ask from the restoration sector itself, as well as other public bodies and industries, for better data and guidance to inform regionally and nationally where restoration can best take place. This would help identify the best geophysical conditions for successfully restoring species and habitats, and avoid where possible spatial conflict with other sea users.

To support this, we have committed to develop a Restoration Plan in the next few years for marine and coastal ecosystem restoration, including prioritising habitats and locations, as part of the five year Delivery Plan for the Scottish Biodiversity Strategy.

The Restoration Plan will be key in guiding restoration activity. Taking action now through the proposals outlined in this consultation document would help ensure the correct legislative levers are in place to support the Restoration Plan.

Regulatory context for restoration projects

Groups looking to undertake restoration are subject to a wide range of regulations, licences and permits depending on where, how and what they are restoring.

For example, projects may need:

• planning permission from the Local Authority
• a marine licence administered by Scottish Government’s Marine Directorate on behalf of Scottish Ministers. A marine licence is generally required for each licensable marine activity carried out by the project.
  • In addition to a site layout plan, applicants are required to submit: Biosecurity plan, Navigational risk assessment, Monitoring plan, and a description how their project meets any relevant plans or policies such as Scotland’s National Marine Plan.
  • If the restoration activity has the potential to affect protected features in a European marine site, a Habitat Regulations Assessment will be carried out by Marine Directorate as part of considering the marine licence application.
• a lease from Crown Estate Scotland for use of the seabed – if the foreshore or seabed are owned locally, permission from the owner will be needed. There can be cases where the intertidal area of restoration is owned by a local owner but a subtidal area by Crown Estate Scotland, meaning agreement is needed from both.
• a conservation translocation licence from NatureScot if species or habitats are being re-introduced/re-established outwith their current native range. For example restoring native oyster populations where there is historical evidence they occurred in the past.
  • if the translocation activity has the potential to affect protected features in a European marine site, a Habitat Regulations Assessment will be carried out by NatureScot as part of considering the translocation license application.
• an authorisation to operate an Aquaculture Production Business (APB) or a registration for non-commercial installations (NCB) from the Fish Health Inspectorate may be needed if cultivating shellfish. For example when maturing native oysters or mussels prior to placing them on the seabed.
  • Operators of APBs must establish, maintain and comply with a Biosecurity Measures Plan (BMP) that must be provided when requested by an inspector.

Not every project will need every licence or consent, but separate elements of a restoration project may require one or more of the above. It is clear even from the examples set out above that the sector operates in a complex patchwork of regulatory requirements. Despite this high level of regulation, we do not currently have a good overarching picture of where restoration activity is taking place in Scotland.

This is in contrast to the limited mechanisms that exist to protect species and habitats undergoing restoration. The only powers currently available to Scottish Ministers to protect natural assets that have been or are being restored are through fisheries management measures, or by designating a Demonstration and Research Marine Protected Area (D&R MPA). There are specific criteria for D&R MPAs, which means they may not be a suitable tool for all restored assets. The current mechanisms mean there is a gap whereby restored habitats and species cannot be protected from other potentially damaging activities. For example construction, extraction or deposition of material.

Our legislative proposals seek to address two sides of this equation: on the one hand, we will simplify one element (marine licensing) of that complicated regulatory environment for restoration projects that have a low environmental impact (Part 1), and on the other hand we propose that Scottish Ministers should be able to protect, if necessary, habitats and species under restoration (Part 2).

What will these proposals mean for other users of the sea?

This question is addressed in further detail in Parts 1 and 2, but this section sets out some overarching points.

In the wake of the strong public reaction to the consultation on proposals for Highly Protected Marine Areas (HPMAs), we are very conscious of the concerns of many people who depend on the seas for their livelihood about the potential for any further restrictions on activities in the marine environment. It is important therefore to be clear about the checks and balances that would be put in place to ensure these proposed changes are fair and proportionate.

Marine Conservation Orders (MCOs) are a fine-tuned protection mechanism that is tailored to the specifics and needs of each location they are applied to. They are not blanket restrictions on activity – and would be applied on the basis of advice from NatureScot to protect habitats or species under restoration, or European marine sites from potentially damaging activities.

Extending the existing MCO provisions in this way would not in practice significantly change the ability for Scottish Ministers to restrict fishing activity in the inshore marine environment, as this is already possible via fisheries management measures under other pieces of legislation. Similarly, in relation to standalone European marine sites, marine licensable activities are already subject to environmental assessment processes under the 1994 Habitats Regulations. What this proposal would provide is a single, comprehensive and flexible mechanism, which would also allow for protection from activities by other marine users if necessary. Scottish Ministers can keep Orders under review and could, for example, revoke them where despite best efforts restored habitats or species have failed to establish, to ensure restrictions are only in place where they are truly needed.

As with the current MCO provisions, any Marine Conservation Orders proposed in future in relation to the proposals set out in this consultation would be subject to consultation requirements as well as socio-economic and environmental impact assessments, to ensure local interests have a voice.

Through the Restoration Plan, supported by the proposed registration process, we can develop better oversight of where activity is happening and guide where it is most appropriate and likely to succeed (from both environmental and socio-economic perspectives). This will help ensure that restoration as it expands happens in appropriate locations and minimises spatial conflict with other legitimate uses of the sea. As set out above, the proposed registration process would simplify only one element of the regulatory requirements for restoration projects, and only for projects that come under a threshold of environmental impact.