Highly Protected Marine Areas: policy framework

8. Proposal for legal powers in relation to HPMAs

8.1 Background

Currently the Scottish Government does not have the necessary legal powers to designate and protect HPMAs. Therefore, the intention is to deliver the necessary legislative and management framework for HPMAs, in both Scottish inshore and offshore waters.

For Scottish inshore waters (up to 12 nautical miles from the coast), there is full legislative competence within Scotland to introduce the necessary powers to designate HPMAs through primary legislation. It is proposed that HPMAs will be included within the legislative framework set by the Marine (Scotland) Act 2010, with new provisions delivered, as required, through primary legislation.

For the Scottish offshore region (beyond 12 nautical miles out to the outer limits of the UK continental shelf) legislative competence over the marine environment is currently reserved to the UK Government (with some exceptions). We are seeking agreement from the UK Government to provide for equivalent powers for Scottish Ministers to designate HPMAs in Scottish offshore waters. The UK Government would be responsible for any public consultation in relations to the creation of powers to designate HPMAs in offshore waters. The intention, however, is that this proposed policy framework and the site selection guidance will apply in relation to HPMAs in inshore and offshore waters.

Section 6 sets out the policy approach required to achieve the aims and purposes of HPMAs in relation to a wide range of marine activities. The regulation of aspects of some of these activities are reserved, i.e. in the competence of the UK Government and as such will remain outside of the competence of Scottish Parliament. The proposals in this framework do not apply to any activities relating to a matter which is a reserved matter.

8.2 Current powers to designate Marine Protected Areas

The Marine (Scotland) Act 2010 (“the Act”) provides a statutory framework for the management of the marine environment in Scotland’s inshore waters (up to 12 nautical miles from the coast). In UK offshore waters, including around Scotland, an equivalent framework is provided by the Marine and Coastal Access Act 2009.

The two Acts (often called the Marine Acts) allow for the designation of marine protected areas (MPAs) for nature conservation purposes by Scottish Ministers in Scottish waters. The Marine (Scotland) Act 2010 also provides powers for Scottish Ministers to designate Demonstration and Research MPAs and Historic MPAs.

Along with marine sites or marine elements of sites designated under other legislation^[27] (Special Areas of Conservation and Special Protection Areas, Sites of Special Scientific Interest and Ramsar sites), Nature Conservation MPAs form a network of conservation sites in the UK marine area.

Nature Conservation MPAs are a type of MPA designed to afford protection to a range of nationally important habitats and species (“features”). Conservation objectives are set for features, allowing sustainable use of the site to continue as long as these objectives can be achieved. Features may be present across entire sites, or in parts of sites.

Once an MPA is designated, there is a duty on public authorities to carry out their functions to further the conservation objectives of the site^[28]. The authority must not allow any activity they are responsible for authorising unless they are satisfied that there is no significant risk of hindering the achievement of the conservation objectives. Alternatively, they must be satisfied that the benefit to the public outweighs the risk of damage to the environment, there are no alternatives which would lower the risk, and that steps will be taken to compensate for any damage. This process applies to all activities which require a consent, including a marine licence, planning permission, or consent under the Electricity Act 1989.

Scottish Ministers can also restrict activities in MPAs which are not subject to marine licences or other types of consent, using marine conservation orders. This mechanism has been used, for example, to introduce fisheries management measures within MPAs, including restrictions on specific gear types. As mentioned above, the Scottish Government is currently working on delivering fisheries management measures for existing MPAs where these are not already in place.

For HPMAs our intention is to prohibit activities that would cause any damage to HPMAs from the point of designation, thereby providing certainty which activities are not compatible with the highly protected status. Except in limited circumstances it would also not be compatible with the objectives for HPMAs to allow for the licensing of marine activities that would be damaging to the ecosystem within HPMAs. To realise these proposals and introduce HPMAs, we are proposing a new provisions within the existing legislative framework provided by the Marine (Scotland) Act 2010 that are tailored specifically to the designation and management requirements of HPMAs.

8.3 Proposals

This section sets out our proposals for new powers to introduce HPMAs in Scottish inshore waters.

8.3.1 Introduce new powers for Scottish Ministers to designate HPMAs in Scottish inshore waters

We are proposing to add new powers so that Scottish Ministers can designate HPMAs in Scottish inshore waters. As is currently required for new MPAs, it is proposed that Scottish Ministers will need to consult on site proposals prior to designation of a HPMA.

We also propose to set out the purposes for which a HPMA is designated: to strictly protect marine ecosystems allowing them to recover and thrive; and, in some cases, for the purpose of carefully managed enjoyment and appreciation. The latter would mean that, in some cases, carefully managed recreational activities may be allowed within HPMAs at non damaging levels.

It is proposed that HPMAs will form part of the network of conservation sites as defined under section 79 of the Marine (Scotland) Act 2010. HPMAs should add value to the existing network, and provisions within the Act will be amended to reflect this.

We propose to provide powers for Scottish Ministers to amend or revoke, by order, existing HPMA designation orders. An amendment to a HPMA designation order may be necessary to alter HPMA site boundaries to adapt to changes of circumstances, for example as a result of scientific monitoring. As is the case for the current MPA regime^[29], we propose that Scottish Natural Heritage (known as NatureScot) may issue advice and guidance to public authorities on certain matters relating to inshore HPMAs, including on matters which are capable of damaging HPMAs. We also propose that NatureScot must give advice to a public authority if requested so by a public authority.

8.3.2 Allow for activities to be prohibited from the point of designation to afford high levels of protection

It is intended that HPMAs will place strict limits on human activities to allow the protection and recovery of marine ecosystems. Examples of activities which it is proposed will not be allowed within HPMAs include (noting that insofar as aspects of some of these activities are reserved, they cannot be regulated by the Scottish Parliament):

• commercial or non-commercial (including recreational) fishing. This includes fishing with mobile and static gears, demersal and pelagic gears, hand gathering and diving
• collection by any method of flora, fauna, natural materials (e.g. crustaceans, molluscs, seaweed, fossils, shells, rocks, sediments, seagrass, algae)
• activities associated with oil and gas exploration and production*
• activities associated with renewable energy production
• aggregate extraction
• anchoring*
• water abstraction
• mining*
• construction or installation of objects or infrastructure (including rock dump and rock armour)
• any form of aquaculture (finfish, shellfish, seaweed or other)
• other deposit or release of any substance or material (e.g. dredged material, rubbish, organic waste, chemicals)
• intentional introduction or release of plants, animals or other living organisms (except for the purposes of a recognised restoration project specifically relating to the aims of the HPMA)
• use of explosives*
• use of acoustic deterrent devices (ADDs)*
• seismic surveys*
• salvage operations*

(*We intend to work with the UK Government to avoid these activities taking place in HPMAs wherever possible.)

The granting of marine licences for the activities listed above would not be compatible with the objectives of HPMAs. We therefore intend to exclude them from activities for which a marine license can be obtained within a HPMA, apart from the limited circumstances described in section 8.3.3. We propose that these activities will not be permitted from the point of designation of the HPMA in order to allow for instant protection and enforcement of contraventions.

Where HPMA designations require the relocation of human activities, there may in some instances be a need for a transitional ‘phasing out’ period following the point of designation of a HPMA. This could be to allow, for example, for the completion of current production cycles at active aquaculture sites. We propose that powers for transitional ‘phasing out’ will be provided for, with any transition periods having a clear end point that is detailed in HPMA designation orders.

It is proposed that carrying out any activity that is prohibited within a HPMA will be an offence and a person found guilty of an offence will be liable to a fine. We propose to keep the levels of fines at the same levels as for offences for contravening a marine conservation order: a fine not exceeding £50,000 for an offence on summary conviction an unlimited fine for convictions on indictment.^[30]

We also propose that there would be a requirement for public authorities to consider whether a proposed new activity taking place outside of a HPMA is capable of affecting the ecosystem within the HPMA. The purpose of such a duty would be to ensure that public authorities do not consent to a new activity unless they are satisfied that there is no risk of the activity hindering the achievement of the objectives of the HPMA. Guidance would be provided to public authorities to help them meet this duty.

8.3.3 Establish processes to permit certain limited activities within a HPMA on a case by case basis for specified reasons

We propose to introduce powers for public authorities to permit certain damaging activities within HPMAs on a case by case basis where there are overriding reasons relating to lifeline services to remote and island communities, public safety, habitat or species restoration projects furthering the objectives of a HPMA, scientific monitoring, or in order to comply with international law and legal obligations (for example in order to comply with OSPAR decision 98/3, which prohibits the leaving wholly or partly in place of disused offshore installations), or any other over-riding reason identified by Scottish Ministers.

This could include:

• Surveys using damaging methods to ensure navigational safety*, and to monitor the condition of HPMAs or other types of MPA. This could include contact with the seabed and removal of samples of sediment or marine plants and animals for analysis
• Construction such as critical infrastructure for coastal defences, or installation of moorings for recreational purposes
• New power distribution cables or broadband/telecommunication cables to an island or remote community
• Inspection, maintenance and repairs of active infrastructure such as coastal defences, carbon capture utilisation and storage infrastructure, or active pipelines and cables*
• Inspection, maintenance, repairs and removal of inactive infrastructure*. This is, for example, to comply with international environmental commitments (e.g., removal of renewables infrastructure under the OSPAR Convention)
• Habitat or species restoration projects specifically relating to the aims of the HPMA or other MPAs
• Salvage operations*
• Harvesting of seaweed to allow for the safe navigation of vessels and around water intakes

(* To the extent that activities relate to a reserved matter, we intend to work with UK government authorities to ensure a consistent approach wherever possible.)

We propose that, before granting a marine licence or other type of consent, a public authority would need to be satisfied that the activity is related to the reasons mentioned above and that there are no reasonable alternative options to otherwise carry out the activity. We also propose that the public authority would need to take advice from the statutory nature conservation advisors before the activity is permitted. We propose that the public authority would have powers to issue remediation notice requiring a person to take certain specified compensatory steps which may also include the payment of a compensation to allow for habitat or species restoration.

8.3.4 Activities which are not permitted in a HPMA but are justified in cases of emergency and force majeure

We propose that some activities otherwise prohibited in a HPMA may be justifiable in cases of emergency and force majeure, such as:

• for the purpose of preventing injury, loss of life or damage to property. This could include search and rescue activity, firefighting, anchoring of vessels for safe haven in storms, and any other activities required for the purpose of securing the safety of a vessel, aircraft or marine structure
• Emergency removal of obstructions or dangers to navigation
• Responses to environmental incidents such as chemical or oil spills. This could include use of substances or equipment to disperse, control, contain or recover substances

8.3.5 Measures for activities allowed and carefully managed in HPMAs

We propose that some activities will be allowed to take place in HPMAs and will be carefully managed at levels non-damaging to the marine environment. Activities which we propose can continue to take place in HPMAs are:

• SCUBA diving
• snorkelling
• swimming
• use of motorised vessels or personal watercrafts (e.g. motorboats, jet skis)
• use of non-motorised vessels or crafts (e.g. sailboats, kayaking, canoeing, paddleboarding, surf, kitesurfing, windsurfing etc)
• wildlife watching by individuals or groups
• anchoring and mooring only at specified designated locations (unless in cases of an emergency and force majeure as set out under section 8.3.4)
• scientific research using non-damaging methods for the purpose of monitoring the ecological condition of the HPMA e.g. use of drop-down video cameras

Some of these activities may require measures to be put in place in order to comply with the objectives of a HPMA. We propose that such activities would be allowed to continue within HPMAs unless it is necessary to introduce measures to restrict them, based on advice from NatureScot. The proposal is to introduce provisions that would allow for activities to be managed through a range of mechanisms:

• Adoption of guidance (e.g. a code of conduct). Guidance provides flexibility allowing for updates if circumstances change, such as new scientific evidence on the impacts of an activity. As such it is well suited to communicating best practice within an adaptive management approach. A limitation of guidance is that it is normally advisory, meaning that non-compliance may not be an offence. The issuance of guidance could be delegated by Scottish Ministers to other bodies.
• Create provisions for a permitting system. This would entail the prohibition of certain activities (see bullet point below on use of orders to prohibit an activity) and establish a permitting system to allow authorisations to be issued. Such a system would allow conditions to be attached to permits. It could also be used to limit the number of individuals permitted to undertake the activity. It would be enforceable with penalties for non-compliance. Establishing and maintaining a permitting system would entail costs, as they require administrative resources in order to function. The power to issue permits could be delegated to other bodies.
• The designation order could also be used to prohibit an activity or otherwise specify management measures. Orders are legally robust making them particularly useful where there is certainty around how any activity will be managed. However they lack flexibility to be amended quickly if, for example, new scientific evidence emerges. Amendments require a lengthy process, including public consultation and passage through the Scottish Parliament. This can make them impractical if there is a need to make changes to management quickly.

8.3.6 Achievement of HPMA objectives

We propose a new duty on Scottish Ministers to assess the extent to which the objectives of a HPMA have been achieved.

We also propose that the existing duty on Scottish Ministers to report to the Scottish Parliament every six years on aspects of the network of conservation sites be expanded to include reporting on HPMAs. This should include the extent to which, in the opinion of the Scottish Ministers, the objectives for HPMAs have been achieved, and further steps to be taken to contribute to achieving those objectives.