Sectoral marine plan: appropriate assessment

1. Introduction and background

1.1 Introduction

1.1.1 The Sectoral Marine Plan for Offshore Wind Energy ("the Plan") has been developed to provide the spatial framework for the leasing programme for commercial-scale offshore wind by Crown Estate Scotland ("CES") ("the ScotWind leasing round"). The Plan has been developed on a technology neutral basis and has identified Plan Options suitable for the deployment of up to 10 gigawatts ("GW") of generating capacity nationally.

1.1.2 A full Sustainability Appraisal ("SA") (incorporating Strategic Environmental Assessment ("SEA"), Socio Economic Impact Assessment ("SEIA") and Habitats Regulations Appraisal ("HRA")) was undertaken for the draft Plan and 17 Draft Plan Options ("DPOs") selected by Scottish Ministers. These 17 DPOs were split across five regions (North, North East, East, South West and West), as shown in Figure 1 below.

1.1.3 The HRA report concluded that, due to the current levels of predicted cumulative impacts on key seabird species from East coast colonies and uncertainty regarding the distribution and abundance of certain species during the non-breeding season, it was not possible to conclude that there would not be an adverse effect on site integrity resulting from development within DPOs E1, E2, E3, NE2, NE3, NE4, NE5 and NE6, without the application of plan-level mitigation measures. Two separate sets of plan-level mitigation are proposed in the HRA Report to mitigate these impacts;

• DPOs subject to high-levels of ornithological constraint (E3, NE2, NE3, NE4, NE5 and NE6); and
• DPOs subject to the need for further regional-level survey (E1 and E2).

1.1.4 Further, the HRA Report identifies the following mitigation measures should be applied across all Plan Options, in order to avoid an AEOSI;

• The legal requirement for individual projects to undergo HRA;
• Restricting development within individual POs to the scenarios assessed in the Sustainability Appraisal and HRA Report ('maximum realistic development scenarios'); and
• The enactment of an iterative plan review ("IPR") process to support the implementation of the Plan.

1.1.5 Further detail regarding these mitigation measures is provided at Section 4 of this AA.

1.2 Draft and Final Plan Options

1.2.1 As a result of the consultation feedback, 15 Plan Options ("POs") have been chosen to progress as final Plan Options, with boundary reductions applied to 7 Plan Options - in order to address consultee comments in relation to a range of issues (including, but not limited to, commercial fisheries, navigational safety and seascape, landscape and coastal character impacts). One DPO has been removed in the North East region (DPO NE5) and the only DPO in the South West region (DPO SW1) has also been removed. The changes are shown in Figure 2 below.

1.2.2 These changes are not required to have significant impacts on the conclusions of the assessment undertaken (which was completed using a range of scenarios (compared within the 'do nothing' approach) at a regional and national scale and on a worst-case scenario basis per receptor), therefore, further re-assessment has not been undertaken. Further information regarding the consultation process is provided at section 4 below.

1.3 Legal Context and HRA approach

1.3.1 In developing the Plan, Scottish Ministers have appraised whether the Plan (alone, or in combination with other plans and projects) are likely to have a significant effect ("LSE") on any European site or European offshore marine site (special areas of conservation ("SAC") and special protection areas ("SPA")) and, if so, whether the Plan may have an adverse effect on the integrity of such sites.

1.3.2 The assessment has been undertaken by Scottish Ministers and is required under regulation 48 of the Conservation (Natural Habitats, &c.) Regulations 1994 (as amended) and regulation 63 of the Conservation of Habitats and Species Regulations 2017 (herein collectively referred to as "the Habitats Regulations"). This AA is in accordance with Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora ("the Habitats Directive") and Council Directive 2009/147/EC on the conservation of wild birds ("the Birds Directive"). Scottish Ministers, as the competent authority under the Habitats Regulations, must be satisfied that the Plan will not adversely affect the integrity of any European site or European offshore marine site (special areas of conservation ("SAC") and special protection areas ("SPA")) either in isolation or in-combination with other plans or projects before they can grant consent for the Development.

1.3.3 A detailed AA has been undertaken and Scottish Natural Heritage ("SNH") and the Joint Nature Conservation Committee ("JNCC") have been consulted.

1.3.4 It should be noted that this plan-level HRA is not a substitute for the future requirements of HRAs carried out for individual projects. Such project-level HRA processes will still be required in accordance with the relevant legislation and further project-level assessment is a required mitigation measure (see further, Section 4).

1.4 Appropriate assessment ("AA") conclusion

1.4.1 This AA concludes that there will be no adverse effect on the site integrity of any European sites or European marine sites arising from the Plan, either in isolation or in-combination with other plans or projects, providing that the following mitigation measures are applied (also included at Section 4 of this AA and the final Plan);

• The application of iterative plan review (to ensure that the Plan remains reflective of current scientific knowledge and understanding and the wider spatial and regulatory landscape);
• Further project-level assessment to identify and assess the potential impacts of individual projects brought forward within the Plan Option areas;
• The application of Plan-level mitigation measures to Plan Options E1 and E2, requiring the completion of further regional-level survey work and assessment;
• The application of Plan-level mitigation measures to Plan Options E3, NE2, NE3, NE4 and NE6 (named Plan Options subject to high levels of ornithological constraint), preventing development within these Plan Options until such time as sufficient evidence on the environmental carrying capacity for seabirds exists to reduce the risk to an acceptable level"; and
• Restricting development within individual POs to the scenarios assessed in the Sustainability Appraisal and HRA Report ('maximum realistic development scenarios').

1.4.2 Scottish Ministers consider that the most up to date and best scientific evidence available has been used in reaching the conclusion that the Plan will not adversely affect the integrity of the sites outlined in section 8 and are satisfied that no reasonable scientific doubt remains.

1.5 Background to including assessment of proposed SPAs

1.5.1 In Scotland, the Scottish Ministers are currently in the process of identifying a suite of new marine SPAs. In 2014, advice was received from the statutory nature conservation bodies ("SNCBs") on the sites most suitable for designation and at this stage they became draft SPAs ("dSPA"). Once the Scottish Ministers have agreed the case for a dSPA to be the subject of a public consultation, the proposal is given the status of proposed SPA ("pSPA") and receives policy protection, which effectively offers the sites the same level of protection as designated sites, from that point forward until a decision on classification of the site is made. This policy protection for pSPAs is provided by Scottish Planning Policy (paragraph 210), the UK Marine Policy Statement (paragraph 3.1.3) and Scotland's National Marine Plan (paragraph 4.45).

1.5.2 It is not a legal requirement under the Habitats Directive or the Habitats Regulations for this assessment to assess the implications of the Plan on any pSPAs. This AA includes an assessment of implications upon these sites in accordance with domestic policy. The Scottish Ministers are also required to consider article 4(4) of the Birds Directive in respect of pSPAs. The considerations under article 4(4) of the Birds Directive are separate and distinct to the considerations which must be assessed under this Habitats Directive assessment but they are, nevertheless, set out within this AA.

1.5.3 In accordance with the Habitats Regulations the Scottish Ministers will, as soon as reasonably practicable following the formal designation of the pSPA, review their decisions if the Plan is authorised. If required, this will include a supplementary AA being undertaken concerning the implications of the Plan on the site as designated (as the site is currently a pSPA, at present, the conservation objectives are in draft form and will be finalised at the point that the site is designated).