Highly Protected Marine Areas - policy framework and site selection guidelines: strategic environmental asessment

Appendix A - Policy Context of the Policy Framework and Site Selection Guidelines for Highly Protected Marine Areas

This appendix sets out the wider policy context in relation to the Policy Framework and Site Selection Guidelines for HMPAs, 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)^[103].

It should be noted that as the UK is no longer a member of the EU, EU legislation, as it applied to the UK on 31 December 2020, is now a part of UK domestic legislation as set out in the EU (Withdrawal) Act 2018^[104].

Overarching marine policy

Species and habitat conservation is one of several key areas of interest underlying greater marine policy in Scotland^[105]. Additional policy areas relate to topics such as aquaculture, marine renewable energy, and the management of commercial and recreational fisheries^[106]. In recent years, Scotland has also embarked on a programme of national marine planning in accordance with national legislation and a growing international recognition of the need to balance competing interests and aims in the marine environment, including conservation. Examples of this wider marine policy are presented below, beginning with international policies and moving on to UK and domestic policies.

At an international level, the United Nations Convention on the Law of the Sea (UNCLOS) is an international agreement adopted in 1982 that establishes a legal framework for all marine and maritime activities. It lays down a comprehensive regime of law and order in the world's oceans and seas establishing rules governing all uses of the oceans and their resources^[107]. It embodies in one instrument traditional rules for the uses of the oceans and at the same time introduces new legal concepts and regimes and addresses new concerns. The Convention also provides the framework for further development of specific areas of the law of the sea. The convention introduced a number of provisions. The most significant issues covered were setting limits, navigation, archipelagic status and transit regimes, Exclusive Economic Zones (EEZs), continental shelf jurisdiction, deep seabed mining, the exploitation regime, protection of the marine environment, scientific research, and settlement of disputes^[108].

UN Sustainable Development Goal 14: Life Below Water was adopted in 2015 as an integral aspect of the 2030 Agenda for Sustainable Development and its set of 17 transformative goals^[109]. Goal 14 stresses the need to conserve and sustainably use the world's oceans, seas and marine resources^[110]. Advancement of Goal 14 is guided by specific targets that focus on an array of ocean issues, including reducing marine pollution, protecting marine and coastal ecosystems, minimising acidification, ending illegal and over-fishing, increasing investment in scientific knowledge and marine technology, and respecting international law that calls for the safe and sustainable use of the ocean and its resources. The 2022 UN Ocean Conference, co-hosted by the Governments of Kenya and Portugal, comes at a critical time as the world is seeking to address many of the deep-rooted problems of our societies laid bare by the COVID-19 pandemic and which will require major structural transformations and common shared solutions that are anchored in the Sustainable Development Goals^[111]. To mobilise action, the Conference will seek to propel much needed science-based innovative solutions aimed at starting a new chapter of global ocean action. Solutions for a sustainably managed ocean involve green technology and innovative uses of marine resources. They also include addressing the threats to health, ecology, economy and governance of the ocean – acidification, marine litter and pollution, illegal, unreported and unregulated fishing, and the loss of habitats and biodiversity.

The Convention for the Protection of the Marine Environment of the North-East Atlantic (the 'OSPAR Convention') integrated and updated the 1972 Oslo and 1974 Paris Conventions on land-generated sources of marine pollution^[112]. The first Ministerial Meeting of the OSPAR Commission in 1998 adopted Annex V 'On the protection and conservation of the ecosystems and biodiversity diversity of the maritime area' to the Convention, to extend the cooperation of the Contracting Parties to cover all human activities that might adversely affect the marine environment of the North-East Atlantic. In 2003, Recommendation 2003/3 was adopted (amended in 2010 by Recommendation 2010/2), relating to the establishment of an ecologically coherent network of MPAs in the North East Atlantic^[113] and in 2010, Recommendation 2010/5^[114] on the assessment of environmental impacts on threatened and/or declining species was adopted.

TheOSPAR Convention is implemented through OSPAR's North-East Atlantic Environmental Strategy 2030 which was adopted in October 2021 in Portugal^[115]. This Strategy sets out collective objectives to tackle the triple challenge facing the ocean; biodiversity loss, pollution and climate change^[116]. Its implementation is part of OSPAR's contribution to the achievement of the United Nations (UN) 2030 Agenda for Sustainable Development and its Sustainable Development Goals^[117]. The Strategy sets out OSPAR's vision, strategic and operational objectives. Surrounding four themes (clean seas, biologically diverse seas, productive and sustainably used seas and seas resilient to climate change and ocean acidification), the operational objectives of the Strategy set out qualitative and quantitative targets to support achievement of the strategic objectives^[118]. The introduction of HPMAs will support and contribute to the strategic objectives set out in the Strategy.

The UK reports progress towards Good Environmental Status (GES) through the UK Marine Strategy^[119]. This Strategycontributes to delivering the vision of the UK Marine Policy Statement (see below). It consists of a simple 3-stage framework for achieving GES in order to protect the marine environment, prevent its deterioration and restore it where practical, while allowing sustainable use of marine resources^[120]. The strategy covers 11 elements (known as descriptors) including: biodiversity; non-indigenous species; commercial fish; food webs; eutrophication; sea-floor integrity; hydrographical conditions; contaminants; contaminants in seafood; marine litter and underwater noise. Wherever possible, indicators and monitoring programmes have been carried out together with OSPAR countries using agreed methods and assessment criteria to provide a coordinated approach across the North East Atlantic^[121]. The introduction of HPMAs should help to contribute to achieving GES.

The Marine (Scotland) Act 2010 acts as a framework to help balance competing demands on Scotland's inshore seas^[122]. It introduced a duty to protect and enhance the marine natural and historic environment while at the same time streamlining the marine planning and licensing system^[123].

The Marine and Coastal Access Act 2009 devolved marine planning and conservation powers to Scottish Ministers in the offshore region (12-200nm) and also provide a framework for the cooperative management of the marine environment between Scottish Ministers and UK Government^[124].

The UK Marine Policy Statement provides a vision of 'clean, healthy, safe, productive and biologically diverse oceans and seas' that is shared by all UK countries and used to guide their respective marine management strategies^[125].

Scotland's National Marine Plan fulfils joint requirements under the Marine (Scotland) Act 2010 and Marine and Coastal Access Act 2009 to prepare marine plans, providing a cohesive approach to the management of both inshore and offshore waters^[126]. It enacts the principles of EU Directive 2014/89/EU^[127] on maritime spatial planning, which recognise that a comprehensive and consistent approach to maritime planning can prevent conflicts between sectors, increase cross-border cooperation, and protect the environment by identifying potential impacts early and pursuing opportunities for multiple uses of space^[128]. The National Marine Plan also seeks to promote development in a way that is compatible with the protection and enhancement of the marine environment^[129].

More recently, in 2021, the Scottish Government and the Scottish Green party Parliamentary Group have agreed to work together over the next five years to build a green economic recovery from COVID-19, respond to the climate emergency and create a fairer country^[130]. A Shared Policy Programme, known as the Bute House Agreement was agreed which focuses on areas of mutual interest to improve the way Scotland is governed and create a stable platform to meet the challenges Scotland faces^[131]. It details collaboration on the climate emergency, economic recovery, child poverty, the natural environment, energy and constitution. It includes commitments to a strengthened framework of support for the marine renewables and ffshoree wind sectors and enhance marine environmental protection. In addition, the Bute House Agreement promises a "step change in support for […] new protections for our marine areas" and changes that would make "Scotland an international leader in this field". It identifies a number of much-needed actions to recover the health of Scotland's seas, namely delivering fisheries management measures for all of Scotland's MPAs; designating a suite of HPMAs covering 10% of Scotland's seas (as further detailed in Section 2 of the main report); increasing protection for the inshore seafloor that falls outwith protected areas; and recovering PMFs^[132].

Biodiversity, Flora and Fauna policy

International policies provide a framework for the conservation, protection and sustainable use of biodiversity, flora and fauna. In relation to the marine environment, this includes planning for sustainable fisheries and mariculture, the protection of migratory species, including birds and fish stocks, the protection of marine habitats, and the management of non-native invasive species. These are often set out in the context of taking an ecosystem approach to the management and restoration of marine environments. Scottish policy reflect the objectives of an ecosystem approach and emphasise action for priority species and habitats, with particular reference to the protection of seals and the sustainable management of fish stocks. Building resilience to climate change is also a cross-cutting theme.

At an international level, the UN Convention on Biological Diversity (CBD), signed by 150 government leaders at the 1992 Rio Earth Summit, is dedicated to promoting sustainable development^[133]. The Conference of the Parties is the governing body of the Convention, and advances implementation of the Convention through the decisions it takes at its periodic meetings^[134]. The 15^th meeting of the Conference of the Parties (COP 15) to the CBD is being held in Ku^nming, China in two parts. Part one took place virtually between 11 and 15 October 2021^[135]. Part two will be an in-person meeting in Canada in December 2022. The first part of COP15 addressed agenda items considered essential for the continuation of the operations of the Convention and the Protocols^[136]. It included meetings about administrative matters and technical issues related to the CBD programmes, as well as the development of the Post-2020 Global Biodiversity Framework which aims to put nature on a path to recover by 2030. The Framework comprises 21 targets and 10 'milestones' proposed for 2030, en route to 'living in harmony with nature' by 2050^[137]. The second part of COP15 is expected to address the remaining agenda items, including the completion and adoption of the Post-2020 Global Biodiversity Framework. Designating HPMAs in Scottish Waters will make a significant contribution to achieving this aim in Scotland.

The OSPAR Convention for the Protection of the Marine Environment of the North-East Atlantic is an important driver in the protection and conservation of marine ecosystems and biodiversity^[138], including the establishment of an ecologically coherent network of MPAs in the North East Atlantic^[139]. The OSPAR List of Threatened and/or Declining Species and Habitats^[140] identifies species and habitats that are considered to be priorities for protection.

The EU's Biodiversity Strategy for 2030 is a comprehensive, ambitious and long-term plan to protect nature and reverse the degradation of ecosystems^[141]. The strategy aims to put Europe's biodiversity on a path to recovery by 2030, and contains specific actions and commitments including a target of 'strict protection' of 10% of the EU's seas by 2030. The commitment to introduce comparable high protection to 10% of Scotland's seas by 2026 through the designation of HPMAs exceeds this EU target.

The requirements of the Habitats Regulations^[142] as amended by the Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019^[143],[144]focus on the maintenance and enhancement of biodiversity, with an emphasis on protecting rare and endangered wild species and natural habitats of European significance. This UK site network^[145] comprises terrestrial and marine SPAs and SACs. Scottish Government is committed to ensuring there will be no loss of protection for these protected sites and species in Scotland^[146].

The 2020 Challenge for Scotland's Biodiversity^[147] is Scotland's response to the international UN Aichi Targets for 2020^[148] and the EU Biodiversity Strategy to 2020^[149].

The Strategy for Marine Nature Conservation in Scotland's Seas is currently the main tool for enacting the principles of the 2020 Challenge within the marine environment^[150]. It supports the development of an ecologically coherent network of MPAs in support of strategic aims such as meeting GES under the UK Marine Strategy and satisfying the requirements of the Birds and Habitats Directives^[151]. It also proposed the PMF system to guide the identification of MPAs and provide focus for marine planning and other activities.

In 2020, Scottish Government published a Scottish Biodiversity Strategy Post-2020: Statement of Intent which sets the direction for a new biodiversity strategy which will respond to the increased urgency for action to tackle the twin challenges of biodiversity loss and climate change^[152]. A consultation on the new Scottish Biodiversity Strategy consultation opened on 20 June 2022 and closed on 12 September 2022^[153]. This Strategy aims to end biodiversity loss by 2030 and restore / regenerate biodiversity by 2045^[154]. It will ensure that conditions are in place to drive the transformation needed to manage and restore terrestrial, freshwater and marine biodiversity resources in Scotland, as well as providing a framework for prioritising and coordinating actions and investments^[155].

Soil policy

At present, there is no legislative or policy tool developed specifically for the protection of soil^[156]. However, designations and their associated management agreements and operations often extend protection to soil as a means of enhancing the biodiversity, geodiversity, landform value and cultural resources of the site^[157]. For example, marine geology forms part of the basis for the designation of MPAs within Scottish waters^[158]. Specifically, MPAs strive to protect rare and representative marine species, habitats and geodiversity, the latter defined as the variety of landforms and natural processes that underpin the marine landscape. Similarly, SSSI^[159] are those areas of land and water that best represent Scotland's natural heritage in terms of its flora, fauna, geology, geomorphology, and/or a mixture of these natural features, as designated by NatureScot under the Nature Conservation (Scotland) Act 2004^[160].

The UK Marine Strategy covers 11 elements or descriptors, including sea-floor integrity (Descriptor 6 (D6)) comprising pelagic habitats and benthic habitats^[161]. In terms of benthic habitats, the high level objective for GES is to ensure the health of seabed habitats is not significantly adversely affected by human activities^[162]. In order to achieve this objective, there is an operational target to complete a well-managed ecologically coherent MPA network^[163].

Water policy

The EU's Water Framework Directive (2000/60/EC) (WFD) was introduced as a more comprehensive approach to managing and protecting Europe's water bodies. It sets out a goal of bringing all European waters to 'good' chemical and ecological status. Scotland fulfils its water protection obligations under the WFD primarily through the Water Environment and Water Services (Scotland) Act 2003, which defines the establishment of River Basin Management Plans, and the Water Environment (Controlled Activities) (Scotland) Regulations 2011^[164]. Other relevant legislation includes the Pollution Prevention and Control (Scotland) Regulations 2012, which applies specifically to pollution originating from industry discharges^[166].

The UK Marine Strategy^[166]extends the requirements of the WFD into seas beyond 1nm. The UK Marine Strategy covers 11 elements or descriptors, including eutrophication (D5), hydrographical conditions (D7) and contaminants (D8)^[167]. In terms of eutrophication (D5), the high level objective for GES is to minimise human-induced eutrophication in UK marine waters^[168]. For hydrographical conditions (D7), the GES objective is to ensure that the nature and scale of any permanent changes to hydrographical conditions resulting from anthropogenic activities do not have significant long-term impacts on UK habitats and species. For contaminants (D8), the GES objective is that concentrations of specified contaminants in water, sediment or marine biota, and their effects, are lower than thresholds that cause harm to sea life, and are not increasing.

Climatic factors policy

In November 2016, the United Nations Framework Convention on Climate Change (UNFCCC) Paris Agreement came into force^[169]. The Paris Agreement is the first legally binding global climate deal and sets out aims to limit global warming to well below 2^°C as well as pursue further efforts to limit it to 1.5^°C ^[170]. A further long-term goal is to achieve net-zero levels of global GHG emissions by the second half of this century. The Agreement also covers a range of other issues such as mitigation through reducing emissions, adaptation, and loss and damage^[171].

The British Energy Security Strategy sets out how Great Britain will accelerate homegrown power for greater energy independence^[172]. The Strategy recognises the importance of accelerating the transition away from oil and gas which depends critically on the development and deployment of offshore wind farms^[173]. It seeks to cut the processing time for offshore renewable development by over half through a number of initiatives, including reducing consent time from up to four years down to one year, making environmental considerations at a more strategic level allowing us to speed up the process while improving the marine environment, introducing strategic compensation environmental measures including for projects already in the system to offset environmental effects and reduce delays to projects, and implementing a new Offshore Wind Environmental Improvement Package including an industry-funded Marine Recovery Fund and nature-based design standards to accelerate deployment whilst enhancing the marine environment.

The Climate Change (Emissions Reduction Targets) (Scotland) Act 2019^[174] received Royal Assent on 31 October 2019. The Act amends the Climate Change (Scotland) Act 2009 setting targets to reduce Scotland's emissions of all to net-zero by 2045 at the latest, with interim targets for reductions of at least 56% by 2020, 75% by 2030, 90% by 2040^[175]. An update to Scotland's 2018-2032 Climate Change Plan has recently been published^[176], which reflects the increased ambition of the new targets for Scotland. Achievement of these targets will require the expansion of renewable energy in Scotland, of which offshore wind is likely to form a significant contribution.

The Marine (Scotland) Act 2010 specifies a duty for Ministers and the public sector to manage and progress actions within the marine environment in a way "best calculated to mitigate and adapt to climate change so far as is consistent with the proper exercise of that function"^[177]. Scotland's National Marine Plan^[178] considers climate change in terms of how actions undertaken within the Plan can help to mitigate GHG emissions, in addition to how these actions need to be adapted to take into account the effects of climate change. The Plan also stipulates that the development and use of the marine environment should not have a significant impact on the national status of PMFs. Many of these are known for their role in carbon sequestration, including within MPAs.

Climate Ready Scotland: climate change adaptation programme 2019-2024^[179], is a five year programme to prepare Scotland for the challenges it will face as the climate continues to change. One of the outcomes of the programme is that the coastal and marine environment is valued, enjoyed, protected, and enhanced, and has increased resilience to climate change.

The UK hosted the 26^th UN Climate Change Conference of the Parties (COP26) in Glasgow between 31 October and 12 November 2021^[180]. The COP26 summit brought parties together to accelerate action towards the goals of the Paris Agreement and the UN Framework Convention on Climate Change. The outcomes achieved are outlined in the COP26 Glasgow Climate Pact^[181].