Fisheries Management Measures within Scottish Offshore Marine Protected Areas (MPAs) - Strategic Environmental Assessment Environmental Report

Proposals for Fisheries Management Measures

Designation of the MPA Network to Date

The Scottish MPA network consists of a large number of sites, designated under various legislative frameworks and include:

• Nature Conservation MPAs;
• Special Areas of Conservation (SACs);
• Special Protection Areas (SPAs);
• Sites of Special Scientific Interest (SSSI); and
• Ramsar sites.

In addition, there is one demonstration and research MPA, eight Historic MPAs, and five Other Area Based Measures recognised as part of the Scottish MPA network^[17].

Offshore Marine Protected Areas

The Marine and Coastal Access Act 2009^[18] gives Scottish Ministers powers to designate MPAs in Scottish offshore waters^[19]. To inform this process, the Scottish Nature Conservation MPA Project was established to ensure MPAs are designated in the most appropriate locations for their particular objectives. The Joint Nature Conservation Committee (JNCC) is responsible for providing advice on Nature Conservation MPAs in the offshore environment^[20]. There are currently 36 Nature Conservation MPAs located within Scotland’s seas, 13 of which are offshore^[21].

Nature Conservation MPAs help protect rare, representative, and productive benthic species and habitats in Scottish waters, as well as significant geodiversity features^[22]. In addition to fulfilling statutory conservation obligations under the UK Marine and Coastal Access Act 2009, offshore MPAs also form part of the wider OSPAR network of MPAs that are found across the North East Atlantic^[23].

Special Areas of Conservation

Following the UK leaving the EU, the Conservation (Natural Habitats, &c.) Regulations 1994^[24],[25], the Conservation of Habitats and Species Regulations 2017^[26], the Conservation of Offshore Marine Habitats and Species Regulations 2017^[27], and the Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001^[28] (collectively known as the Habitats Regulations) have been amended by the Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019^[29]. These changes ensure that the requirements of the EU Habitats Directive are part of UK domestic legislation and continue to apply to how SACs are designated and protected^[30].

Now that the UK has left the EU, Scottish Ministers are able to designate SACs in Scotland that they consider 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^[31]. SACs will still be determined on the basis of criteria in Annex III of the Habitats Directive^[32].

Scotland currently has 58 SACs with marine components, covering 8% of the Scottish sea area. Nine of these SACs are completely in offshore waters, and a further two sites have parts in both inshore and offshore waters.

Special Protection Areas

Following the UK leaving the EU, the Habitats Regulations as amended by the Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019^[33] ensure that the requirements of the EU Birds Directive are a part of UK domestic legislation and continue to apply to how SPAs are designated and protected^[34].

There are a number of SPAs that overlap with Scottish offshore waters. Proposed management measures for these sites are being developed and taken forward as part of the Scottish Government’s commitment to deliver fisheries management measures for existing inshore MPAs where these are not already in place.

Requirement for and introduction of management measures

The Marine and Coastal Access Act 2009^[35] contain a number of legal provisions which support the protected features of offshore Nature Conservation MPAs. This includes the need for public authorities to further the achievement of the conservation objectives of Nature Conservation MPAs where possible whilst exercising their own functions. If they cannot further the objectives then they should act in a way that least hinders them. Furthermore, public authorities should only grant authorisation via the marine licensing system to regulated activities, such as oil and gas or marine renewable energy development, which do not present a significant risk of hindering the conservation objectives. For non-regulated activities in offshore waters, such as fishing, Scottish Ministers have powers under the Marine and Coastal Access Act 2009 to further the achievement of the conservation objectives. This may entail prohibiting, restricting or regulating any activity in any way that is considered necessary.

The Habitats Regulations as amended by the Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019^[36] require that SACs are managed to ensure that the conservation objectives of the features of interest are achieved. The manner in which these sites should be managed and protected is set out in the Habitats Regulations. In summary, the designation of these sites requires the implementation of conservation measures. Appropriate steps should also be taken to avoid the deterioration of the natural habitats and habitats of species, as well as significant disturbance of species for which the site is designated. In addition, any plan or project (e.g. fishing activity) should be assessed to ensure that it does not have any negative implications for an SAC. Where there is a likely significant effect (or it cannot be ruled out) the proposal must undergo an appropriate assessment to determine the implications for the site. Authority for the plan or project must only be given where it can be established that site integrity will not be adversely affected. A plan or project may be authorised even if such assessment shows negative implications for a SAC only where there are no alternative solutions and where the plan or project must be carried out for imperative reasons of overriding public interest. Where this is the case all compensatory measures necessary must be taken to ensure that the UK site network^[37] is protected.

The Scottish Government has been working to develop measures for the management of MPAs since they were designated, in addition to a review and development of management measures for marine SACs^[38]. The inclusion of SACs stemmed from a re-evaluation of the implementation of the Habitats Directive^[39]. As part of developing these measures, Fisheries Assessments have been undertaken to determine the level of impact to the site from fisheries activity. These assessments fulfil the requirements of the Habitats Regulations where required, for the European sites. In addition, the Scottish Government have taken the policy decision to conduct these for Nature Conservations MPAs .

Development of offshore fisheries management measures

Prior to the UK leaving the EU, the management of offshore MPAs was administered via the EU Common Fisheries Policy (CFP)^[40]. According to Article 11 of the CFP, EU Member States are empowered to adopt conservation measures that are necessary to comply with their obligations under Article 6 of the Habitats Directive and Article 13(4) of the Marine Strategy Framework Directive (MSFD)^[41].

Where measures are required outwith waters where the Member State has exclusive competence, the European Commission (EC) is empowered to adopt such measures by means of delegated acts. As was required, the UK was in the process of developing Joint Recommendations for submission to the EC, Advisory Councils and stakeholders in respect of the MPAs and SACs in Scottish offshore waters.

Scotland was required to follow this process in order to implement fisheries management measures for conservation purposes in the Scottish offshore region. This process, however, was not completed prior to the UK exiting the EU and, therefore, Scotland is now progressing offshore fisheries management using domestic processes and powers.

Scottish Government, following advice from JNCC, has identified MPAs and SACs in Scottish offshore waters that are considered to require fisheries management measures to ensure that they achieve their site conservation objectives. In total, eight SACs and 13 Nature Conservation MPAs, have been identified as requiring fisheries management measures. The location of the offshore MPAs that fisheries management measures are proposed for is shown in Figure 1. The key protected features and fisheries management measures that are proposed at these sites are set out in Table 1.

The development of the proposed management measures has been informed by advice from JNCC on the sensitivity of the protected features at each site as well as on possible management options and associated risks. Under Option 1, several sites have zonal measures, whereby only certain areas are subject to the proposed management measures and not the entirety of the site. Option 2 extends any zonal measures to the entirety of the site. Proposed measures under each option are outlined in Table 3 and Table 4. Maps showing the zonal measures are included in Appendix B.

Details on the principles and process that have been followed to develop these measures is provided as part of the suite of documents on and implementation of fisheries management measures that has been published for public consultation.

The Marine and Coastal Access Act 2009 has been amended by the Fisheries Act 2020 to allow Scottish Ministers to make orders for the purpose of conserving marine flora, fauna or habitats. This is the mechanism the Scottish Government intends to use to enact the required fisheries management within the offshore MPAs.

The remaining MPAs that are not included in this round of management proposals are as follows:

• Three SPAs for marine birds which are partially in the offshore region and are being taken forward as part of the fisheries management measures that are being developed for inshore MPAs;
• Hatton Bank SAC which is managed by North-east Atlantic Fisheries Commission (NEAFC) and is already considered to be well managed;
• Hatton Rockall Basin NCMPA which is located in NEAFC waters and falls outside the existing bottom fishing area footprint;
• North-west Orkney NCMPA which is designated for sandeel and does not require fisheries management measures because the seabed in this area prevents sandeel fishing from taking place; and
• Turbot Bank MPA is also designated for sandeel, however proposed measures were initially developed for the site which would prohibit targeted sandeel fishing across the full area. However, in 2023, the Scottish Government consulted on a closure to all fishing for sandeel in all Scottish waters. As a result of this consultation The Sandeel (Prohibition Of Fishing) (Scotland) Order 2024 came into force on 26 March 2024 ahead of the 2024 fishery season and applies to all vessels (UK and EU) fishing within Scottish waters. Therefore no site specific management measures are proposed for this site.

Turbot Bank NCMPA will still feature within this assessment and the wider package of consultation documents which were prepared before the sandeel fisheries closure. Removing the site from the documents is not considered practical at this stage. This is because in addition to site specific assessments, overall assessments have been undertaken for the impacts of implementing measures as a full package.

Policy context overview of proposals for offshore fisheries management measures

The 2004 Regulations require that Responsible Authorities define the plan’s broader policy context, particularly any relevant environmental protection objectives that will influence the plan’s development and implementation. This assessment has been conducted in line with that requirement.

The immediate policy context for the proposed management measures is described in Sections 2.1 to 2.4. Appendix A includes a detailed review of the broader policy context in which the proposed management measures sit, beginning with a summary of relevant marine policies and followed by an overview of policies relating to the SEA topics that have been scoped into the assessment: Biodiversity, Flora and Fauna; Soil (assessed under Biodiversity, Flora and Fauna); Water (assessed under Biodiversity, Flora and Fauna); and Climatic Factors (assessed under Biodiversity, Flora and Fauna) ^[42] (Section 3.3).

The key legislative and policy context for implementing fisheries management measures in NCMPAs and SACs is:

• Marine and Coastal Access Act 2009 (Offshore NCMPAs)
• Sea Fish (Conservation) Act 1967 (Inshore NCMPAs)
• Habitats Regulations 2017 (SACs)
• UK Marine Strategy
• National Marine Plan
• OSPAR Convention.