European Protected Species licensing: EIR release

FOI reference: FOI/17/01837
Date received: 11 August 2017
Date responded: 8 September 2017

Information requested

I have assumed from your references to Scottish legislation and your location that you are interested in how European Protected Species (EPS) licensing works in Scotland or in Scottish waters. My answers should be read in the context of matters for which the Scottish Ministers have devolved responsibility.

You asked for answers to the following questions:-

1. For which species is an EPS Licence required?
2. Who is responsible for awarding/not awarding an EPS Licence?
3. Who does the responsibility for investigating the need or otherwise for an EPS Licence rest with?
4. Can you please advise which specific piece of Scottish legislation applies to the awarding/not awarding of an EPS Licence?
5. Can you please advise what current guidance is available on the need or otherwise to obtain an EPS Licence?
6. What is the purpose of an EPS Licence?
7. Is Community consultation required as part of the process to obtain an EPS Licence?
8. If an EPS Licence is awarded, are the public entitled to see the reasons why such a decision was made and where could this be seen?
9. Are there any special areas either on land or sea where an EPS Licence would not be permitted or considered?
10. Is there a register of EPS Licences which the public can view?
11. Is there a role for National Park bodies (land) or Port Authorities (sea) in commenting/agreeing to the awarding of EPS Licences?
12. How long is an EPS Licence valid for?
13. What authority monitors the proper use of the Licence?
14. Does monitoring occur on a regular basis and what shape and form does this monitoring take?
15. Where an EPS Licence is required, can projects/operations commence before it is obtained?
16. What enforcement action is available where an EPS is deemed necessary?
17. Who takes such enforcement action?

Response

As the information you have requested is 'environmental information' for the purposes of the Environmental Information (Scotland) Regulations 2004 (EIRs), we are required to deal with your request under those Regulations. We are applying the exemption at section 39(2) of the Freedom of Information (Scotland) Act 2002 (FOISA), so that we do not also have to deal with your request under FOISA.

This exemption is subject to the 'public interest test'. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption, because there is no public interest in dealing with the same request under two different regimes. This is essentially a technical point and has no material effect on the outcome of your request.

I set out the responses to your questions below:-

1. If required, EPS licences may be granted for animal species listed in schedule 2 and plant species listed in schedule 4 of The Conservation (Natural Habitats etc.) Regulations 1994 (as amended). An EPS licence may also be granted for animal species listed in Schedule 1 of the Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007.

2. Under the Conservation (Natural Habitats etc.) Regulations 1994 (as amended) the responsibilities are as follows:

• Scottish Natural Heritage are responsible for EPS licensing decisions in all cases for terrestrial animals and plants.
• For marine animals, Scottish Natural Heritage are responsible for decisions made for the purposes listed under regulation 44(2)(a) to (d) inclusive;
• Scottish Ministers are responsible for decisions made for the purposes listed under regulation 44(2)(e) to (g) inclusive.

The Scottish Ministers are also the regulators for all non-reserved activities in the Scottish offshore region (outwith 12nm) under regulation 15(b) of the Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007(as amended).

3. Any individual or organisation, before carrying out an action or activity that might impact on an EPS in terms of regulation 39 of the Conservation (Natural Habitats etc.) Regulations 1994 (as amended) for animals, or regulation 43 for plants and also regulation 39 of the Offshore Marine Conservation (Natural Habitats, &c) Regulations 2007 (as amended), has to:

i. assess the likelihood of committing a disturbance offence,
ii. consider the need for mitigation measures; and
iii. decide whether to apply for an EPS licence.

In some instances however, the need for an EPS licence may arise during consideration of a consented activity. Some licences/consents are conditioned so that works may not be started until EPS licence is granted. Others do not have such a condition, therefore it would be possible for some of the works to commence prior to obtaining the EPS licence, but the EPS licence would be required before the part of the works thought to cause disturbance to EPS could be commenced.

4. The relevant legislation on EPS licences is contained primarily in the Conservation (Natural Habitats etc.) Regulations 1994 (as amended) and the Offshore Marine Conservation (Natural Habitats, &c) Regulations 2007 (as amended).

5. In relation to EPS licensing in the marine environment in Scotland, Marine Scotland has published guidance that applies to EPS licences issued under regulation 44(2) (e) to (g) of the Conservation (Natural Habitats etc.) Regulations 1994 (as amended). Guidance is also available from Scottish Natural Heritage and can be found at: Protecting Scotlands Nature

6. The purposes for which EPS licences may be granted are set out in regulation 44(2)(a) to (g) of The Conservation (Natural Habitats etc.) Regulations 1994 (as amended) and regulation 49 (6) the Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007 (as amended).

7. No.

8. The rationale behind individual EPS licensing decisions is not routinely published, however the information would be subject to Environmental Information Regulations.

9. Each EPS licence application is considered on an individual basis in line with the appropriate legislation and a licence granted or refused accordingly.

10. There is no formal register of EPS licences granted or refused on behalf of Scottish Ministers. In some individual cases information on EPS licences granted may be published on the Scottish Government web-site.

11. No.

12. Each EPS licence application is considered on an individual basis in line with the appropriate legislation and the period for which the licence is valid is set accordingly.

13. & 14. Each EPS licence application is considered on an individual basis in line with the appropriate legislation and appropriate monitoring arrangements are set accordingly.

15. Some licences/consents are conditioned so that works may not be started until an EPS licence is granted. Others do not have such a condition, therefore it would be possible for some of the works to commence prior to obtaining the EPS licence, but the EPS licence would be required before the part of the works thought to cause disturbance to EPS could be commenced.

16. The appropriate penalties for the offence of breaching the conditions of an EPS licence are set out in regulation 46 of The Conservation (Natural Habitats etc.) Regulations 1994 (as amended) and regulation 42 of the Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007 (as amended).

17. The arrangements for enforcement of offences under Part III of the Conservation (Natural Habitats etc.) Regulations 1994 (as amended), which includes the offence of breaching the conditions of any EPS licence, are set out in regulation 41 and regulation 39 of the Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007 (as amended).

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