Memorandum submitted by the Joint Nature
Conservation Committee
1. This response is from the Joint Nature
Conservation Committee (JNCC) on behalf of the UK's statutory
nature conservation agencies: Countryside Council for Wales, English
Nature and Scottish Natural Heritage.
2. GENERAL COMMENTS
2.1 The current state of the marine environment
is of considerable concern to the UK's statutory nature conservation
agencies. There are examples of decline and widespread damage
to the marine ecosystem, as highlighted in the statutory nature
conservation agencies responses to the government consultation
Seas of Change. It is critical that progress is made in a number
of areas if we are to continue to bring the marine environment
back to a healthy state. To do this requires not only a more effective
approach but also a sense of urgency and recognition of the degree
of change needed.
2.2 There has long been a need to enhance
the protection of the marine environment and to improve marine
nature conservation and many of the recommendations of the previous
House of Commons Environment Committee's reports in 1985 and 1992
are still appropriate today. We recognise the limitations and
difficulties inherent in this process deriving from international
(rather than national) competency for two of the main uses of
the sea: fishing and shipping and also from the involvement of
many Government Departments and the devolved administrations in
the management of the seas. However, for those issues that can
be addressed nationally, we are pleased that ways of overcoming
these problems are now being explored.
2.3 There are currently many initiatives
underway to improve the management of the marine environment.
These indicate some sense of urgency within some parts of Government
at least to make progress. Until these initiatives are complete
and any recommendations have been given sufficient time to be
implemented it is difficult to assess the effectiveness of Government
policy. Among these initiatives, we welcome the clarity given
to aims and objectives through the Marine Stewardship Process
and also congratulate Defra for undertaking the Irish Sea Pilot.
Further problems remain, and some need to be addressed urgently,
but many of these appear outside the main questions being addressed
by this inquiry—especially in relation to fisheries. We
also have concerns that the number of initiatives may be causing
confusion among some stakeholders.
2.4 The initiatives include:
2.4.1 The Government's Review of Marine
Nature Conservation (RMNC), set up in 1999 is due to report in
2004. The interim report in March 2001 identified several initiatives
to be pursued including development of strategic goals for marine
nature conservation; identification of nationally important marine
habitats and species; rationalising regulation and approaches
for advising on plans and projects affecting the seas. The statutory
nature conservation agencies are members of the RMNC working group
and have contributed to many of its initiatives. We are particularly
keen that there is further integration of science and policy.
2.4.2 The Irish Sea Pilot project. The interim
report of the RMNC recommended the setting up of a pilot project
to test the potential for an ecosystem approach to managing the
marine environment at a regional sea scale. This pilot project,
now expected to be completed in March 2004, is charged with trialling
a proposed new marine nature conservation framework in the Irish
Sea, and is being carried out by JNCC under funding from Defra.
In particular, it is examining the setting of broad conservation
objectives and ways of achieving them including the requirement
for new or changed legislation. We are confident that, once completed,
the pilot will provide some clear leads for resolving some issues
in the marine environment. It is important that these are followed
up with clear actions.
2.4.3 The Government's first Marine Stewardship
Report (MSR), Safeguarding Our Seas was published in May 2002.
This outlined the strategy for the conservation and sustainable
development of the marine environment, based on a vision of clean,
healthy, safe, productive and biologically diverse oceans and
seas, with much progress to have been made within a generation.
The follow-up consultation paper, Seas of Change (November 2002-February
2003), forms the basis for discussion on making progress. We responded
to this consultation and are contributing to other initiatives
outlined in the consultation. In particular, we expressed concerns
at the lack of specific actions needed to deliver the Governments
vision for the marine environment. We understand that Defra is
still considering proposals following responses to this consultation.
Annex A of "Safeguarding our Seas" gives a timetabled
list for implementation.
2.4.4 As recommended in Safeguarding Our
Seas, Government, through the Department for Transport, have carried
out a Regulatory Review of Development in Coastal and Marine Waters.
The first stage of this review in 2002 concentrated on the information
gathering and analysis of some consenting regimes but this has
not yet reported. We are concerned about this delay. The second
stage was due to build on this by looking in more detail at future
options and means for change. In commenting on stage one of the
review in July 2002, we recommended areas where improvement was
needed and also that the review be extended to a wider range of
consenting regimes.
2.4.5 Integrated Coastal Zone Management
(ICZM) brings together all those involved in the development,
management and use of the coast within a framework that facilitates
the integration of their interests and responsibilities. ICZM
is a central part of the future process outlined in Safeguarding
Our Seas. Following an EU Recommendation on ICZM, the government
has commissioned a stocktake of the coastal zone and its management
(see http://www.defra.gov.uk/environment/marine/iczm/).
The nature conservation agencies are actively involved in this
process.
2.5 We look forward to progress being made
in other initiatives outlined in the Marine Stewardship Report,
not least exploring the role of marine spatial planning.
2.6 Of the marine environment initiatives
under way in Europe (some of these are alluded to above) we would
highlight in particular the development of the EU marine strategy,
measures to implement the new CFP regulation (2002/2371) and implementation
of Annex 5 to the OSPAR Convention. Many of these initiatives
are still being developed, and we hope that Government will be
pressing for integrated outcomes. In relation to the EU marine
strategy, for example, it would be helpful if this became a "corporate"
document guiding all DGs and all policies in the marine environment
(including fisheries, which were barely included in the earlier
discussion paper).
3. NATURA 2000
SITES (SPECIAL
AREAS OF
CONSERVATION AND
SPECIAL PROTECTION
AREAS)
3.1 The EU Habitats Directive (and its UK
implementing legislation) has made a major contribution to protection
of marine habitats over the last nine years. We have a wealth
of experience in implementing SACs, particularly in coastal waters,
on which to make an assessment of their effectiveness. The UK
has led other Member States in a number of aspects of implementing
the Directive and is well regarded in Europe in terms of its implementation
of the Directive in the marine environment.
3.2 Before considering implementation, it
should be noted that the Habitats Directive has shortcomings in
relation to the marine environment. The Directive omits several
subtidal habitats and in general marine habitats are at a much
coarser scale. The UK Government, supported by JNCC and the Country
Conservation Agencies continues to work towards improving the
Habitats Directive Annexes through the EU Habitats and Ornis Committee's
"marine expert group", co-chaired by UK. Progress in
modifying the Habitats Directive has been somewhat slow due to
the need to influence other Member States, secure support from
the European Commission (EC) before implementation by all Member
States, and the difficulties of making changes during the implementation
phase.
3.3 Of the sixty-five existing candidate
marine SACs in the UK all are attached to the coast, although
several, notably in Wales, extend out towards the 12 nautical
mile limit to territorial seas. These sites have been proposed
for the full range of habitats on Annex I to the Habitats Directive,
and for species on Annex II. Mobile species in the marine environment
(such as cetaceans and seals) present particular problems for
site designation. Although harbour porpoise are widely distributed
in UK waters, there are currently no SACs proposed as there are
no readily identifiable areas "essential to the life and
reproduction" of this species to consider for SAC selection.
Further work is underway to try to identify areas to consider
for designation as SACs for this species.
3.4 In the Severn and other estuaries containing
ports, there have been issues related to whether navigation channels
(where these can be identified) should be included within a site
to be submitted to Europe. The Severn was originally proposed
(including its navigation channels) as a SAC in 1995 but has still
not progressed towards being designated. We understand that the
submission to the EC of the Dee and Humber estuaries as candidate
SACs is also being delayed pending a decision on the question
of navigation channels. We welcome the recent EU advice that shipping
lanes should be included within a submitted site and hope that
this barrier to the designation of SACs and SPAs has now been
overcome.
3.5 The 1999 Greenpeace court judgement
resulted in the UK being required to implement the Habitats Directive
(and by implication, the Birds Directive) out to 200 nautical
miles. JNCC undertook work (in close collaboration with the country
conservation agencies)) to identify possible SACs and SPAs in
UK offshore waters. Because of the relative lack of data on habitats
and species within this area, this work necessitated different
methods of SAC identification than those employed hitherto for
inshore SACs. Broad scale geophysical seabed information has been
used to identify habitat areas, and then available biological
data have been used to select sites from within these areas, according
to selection criteria. The first part of this work was sponsored
by Defra and DTI, and reported in May 2002, the second part is
ongoing. The Darwin Mounds was the first offshore SAC proposed
to Defra in October 2002, and the first tranche of offshore SACs
is due to be submitted to UK Government in early 2004.
3.6 Draft Regulations to fully implement
the Habitats Directive in UK offshore waters are currently out
to consultation. Their production has been delayed due to the
complexity of implementing the Habitats Directive in areas subject
to International legal regimes. Lack of UK Regulations for offshore
waters, however, has not prevented the EC from issuing Regulations
under the Common Fisheries Policy to prevent trawling in the area
of the Darwin Mounds, at the request of the UK Government. Oil
and gas developments in UK offshore waters have, since 2001, been
subject to their own offshore Regulations in relation to developments
likely to affect habitats which may be considered for designation
as SACs.
3.7 The UK nature conservation agencies
are currently preparing our response to Defra on the draft Offshore
Marine Conservation Regulations to implement the Habitats Directive
beyond territorial waters. The following issues in implementing
both the Habitats and Birds Directives are inadequately addressed
in the draft Regulations. Firstly, there will be a lack of consistency
in approach if oil and gas developments are subject to separate
Regulations compared to other activities in marine waters such
as renewable energy or aggregate extraction. Secondly, fishing
activity is not controlled in the same manner as other activities
in marine waters—the committee should consider to what extent
new fisheries (coinciding with marine sites) can be considered
as plans or projects and therefore subject to Article 6(3) of
the Directive. Although the draft Regulations allow competent
authorities to establish a management scheme for an offshore site
unlike the situation for marine sites in territorial waters, there
is no power of direction to ensure that this happens.
3.8 The new methods necessary for the identification
of offshore SACs developed by JNCC and the country conservation
agencies, and the availability of new seabed geological information
for English waters, provided new evidence for the widespread existence
of possible Annex I habitat, and highlighted the potential gap
in the SAC site series, between the coast and 12 nautical miles.
This gap was particularly obvious for English territorial waters,
where most of the existing SACs did not extend far into the marine
environment. In view of this, and with the support of Defra, English
Nature (EN) is working towards identifying possible additional
SACs for certain marine habitats within English territorial waters.
EN has already supplied information on the distribution of potentially
relevant habitat and intends to identify a scoping list of possible
sites for further consideration in 2004. In Scotland, collection
of geological seabed information has been far less intensive than
in English waters however, Scottish Natural Heritage (SNH) are
reviewing recently collected survey information and collecting
limited new data on specific habitats. In Wales, most of the existing
marine SACs already extend further out to sea than in England
or Scotland, and only limited new survey is required. Identification
of further marine SACs will require either major investment in
new survey to collect biological information to justify site selection,
or an acceptance (within the UK, other Member States and the EU)
that sites may be designated and managed without the same level
of biological data that is usually expected for sites inshore
and on land. This issue is currently under debate within the UK
and will be discussed with the EU Commission and other Member
States at the EU marine expert group.
3.9 The EU Birds Directive has also made
a major contribution to protection of marine birds in the UK.
UK currently has seventy-one coastal SPAs, which cover estuarine
areas and coastal breeding sites. UK currently only has one fully
marine SPA (Carmarthen Bay) classified for its non-breeding population
of common (or black) scoter. Delays in classifying fully marine
SPAs have been due to a lack of robust scientific data to classify
areas away from the coast and technical difficulties encountered
in determining qualifying populations and boundaries in the marine
environment (where few natural boundaries exist). JNCC, with input
from the country conservation agencies, are progressing a programme
of data collection, collation and analysis to support the identification
and classification of marine SPAs. Three types of SPAs are planned:
i. Seaward extensions to existing coastal
breeding colony SPAs;
ii. Inshore areas for non-breeding waterfowl
(divers, grebes and seaduck);
iii. Feeding/aggregation areas.
Generic guidance for identifying SPAs under
i) above have been prepared and consulted upon (2003) and guidance
under ii) is in preparation. Work on iii) has commenced. In the
meantime, in relation to i) and ii) the agencies are supplying
information on the location of broad areas that merit further
consideration.
3.10 Designation of a site as SAC or SPA
does not, of itself, ensure protection of the features within
it. The Regulations implementing the EU Habitats Directive within
UK territorial seas (12nm) aim to ensure that the sites contribute
to maintenance of the favourable conservation status of features
through two main provisions:
i. A process of prior assessment of the potential
impacts of licensed or consented operations (plans or projects)
by the competent authority, to ensure that only those which do
not have a significant impact on the features of the SAC/SPA proceed
(unless, in relation to the Habitats Directive, there is overriding
public interest). The country conservation agencies have been
closely involved with government and developers applying these
provisions.
ii. Preparation and implementation of management
schemes, where required, for each European marine site (a European
marine site may consist of a SAC or SACs, SPAs or a combination).
Management of SPAs is covered either by their inclusion within
a European Marine Site management scheme, or by a range of management
options frequently agreed for underpinning designation, such as
NNR or SSSI. The development of management schemes is a significant
step forward for the SACs concerned. Twelve European marine sites
in UK received partnership funding from EU LIFE (under the UK
Marine SACs Project) which significantly progressed development
of their management schemes. Further to this, sustaining partnerships
and input from authorities and stakeholders is the main issue.
We can partially address this by advocating the wider benefits
of the collaborative management scheme process. However, it is
apparent that resourcing is a key constraint to effective management
by local bodies.
3.11 There is a need to ensure management
more fully reflects the statutory advice provided by the conservation
agencies (so called Regulation 33 advice) particularly through
proactive planning to avoid deterioration or disturbance to features
of interest based on their sensitivity and/or where it is apparent
that features require more than simply maintaining their current
condition. It is relatively early days in the development, implementation
and review of management schemes. We believe management authorities
will work towards solving these concerns but it is essential that
government continues to actively encourage, support and guide
such efforts.
3.12 Although it is clear that most types
of "development" in the marine environment constitute
a plan or project there remain some uncertainties in the 1994
Regulations, notably fisheries. Such activities may therefore
have to be dealt with through the management scheme. However,
several cases, such as a razor fishery in the Wash and scallop
dredging in Fal, highlight the difficulty of responding quickly
to establish protective measures through the management scheme.
In those two cases, it was necessary to invoke emergency Ministerial
powers. Far from ideal, this demonstrates a need to investigate
measures that would empower the local management authorities to
respond in a timely and effective manner in such cases and government,
in conjunction with such authorities, is looking into this.
4. STRATEGIC
ENVIRONMENTAL ASSESSMENT
4.1 Member States are required to comply
with EU's Strategic Environmental Assessment (SEA) Directive (2001/42/EC)
before 21 July 2004.
4.2 Ahead of the Directive, DTI have been
undertaking SEA on specific areas of the United Kingdom Continental
Shelf prior to the release of blocks for oil and gas licensing
since 1999. DTI are currently producing their fourth SEA covering
the water to the north of mainland Scotland and west of Shetland
and Orkney. There is an associated rolling research programme
which looks forward and undertakes the studies needed for future
SEAs. DTI have also undertaken a SEA prior to the Second Round
of offshore windfarm licensing. The oil and gas and wind SEA processes
are currently being joined to form an offshore energy SEA. The
statutory nature conservation agencies have been represented on
the steering groups for all SEAs undertaken by DTI and we are
very supportive of the work that has been carried out so far.
No other Government department with regulatory responsibilities
in the marine environment has conducted an SEA so far.
4.3 If undertaken properly, SEA should lead
to better management of the planning of marine activities with
Government, industry and the public benefiting through early consultation,
transparency of a decision making process and greater certainty
surrounding future use of the marine environment. The Directive
provides an opportunity for a general improvement in the quality
of plans and programmes through the early identification of the
environmental consequences of plans in a sustainable development
context. This should result in fewer damaging project proposals.
From our experience with DTI we believe that key factors in undertaking
a successful SEA include:
i. Planning—Any SEA should be planned
and carried out well in advance of the need for advice on a plan
or programme. As an example of this, DTI have established a rolling
programme and have planned their SEA programme for the energy
sector for the next five to ten years.
ii. Timing—Sufficient time should be
allowed to carry out an SEA including data collection, environmental
assessment and, most importantly, the drawing together of the
assessment to recommendations or conclusions which allow for the
"integration of environmental considerations into the preparation
and adoption of plans and programmes".
iii. Full and open public consultation—Time
should also be allowed for public consultation which, under the
terms of the Government's Consultation Code[11],
is a minimum of 12 weeks.
iv. Information—following scoping of
issues and assessment of available information, it is important
that a programme of data and information acquisition is agreed
and implemented early in the SEA process (this could be survey
work or studies into impacts). There are often greater gaps in
information and greater uncertainties in the marine environment
than on land.
v. Resources—It is essential that SEAs
receive adequate resources in terms of both finance and experienced
staff. In particular, attention should be paid to the resources
(mostly staff time) that will be needed from outside bodies which
are involved in the SEA process. There is a need to consider this
issue across government not just in the Department(s) concerned.
vi. Experience—When DTI commenced its
first SEA there was limited understanding of the SEA process.
Over the last four years, this has developed considerably. A great
deal of knowledge has been gained and when awarding a contract
to carry out an SEA we advise that prior experience of SEA or
a similar process is essential. In particular the ability to draw
the assessment to a manageable set of conclusions is crucial.
We would encourage other Government departments to learn lessons
from the marine SEAs already undertaken by the DTI.
4.4 The SEA Directive should apply to plans
or projects for all of the main uses of the marine environment,
not just energy generation, including:
ii. Marine Aggregate Extraction
4.5 All of these activities have the potential
to cause significant environmental effects (and therefore meet
the criteria laid out in Annex II of the Directive) and, based
on experience gained with DTI, we believe that in order to meet
the 21 July 2004 implementation deadline, several Departments
and devolved administrations need to urgently consider implementation
in their areas of responsibility. We are pleased that the Scottish
Executive is committed to bringing forward legislation in this
(Scottish) Parliament.
4.6 If separate SEAs are undertaken for
different sectors within the marine environment, mechanisms should
be in place to allow sharing of environmental information and
to allow the results and recommendations from each sectoral SEA
to be integrated. We consider that this may be one area where
institutional barriers could present a problem. One of the potential
benefits of SEA is the contribution that it can make towards the
assessment of cumulative impacts. For this to be realised in practice,
more co-ordination and co-operation between departments and competent
authorities is needed. However, without an overarching mechanism
for marine spatial planning, SEA is unlikely alone to deliver
an effective planning and management framework for the marine
environment.
4.7 The marine aggregates industry has undertaken
a Regional Environmental Assessment of the eastern English Channel[12]
in the absence of any Government led initiative in this sector.
This provides a welcome and valuable contribution to the planning
and management of marine aggregate extraction in an area for which
increasing expectations are being made concerning future provision
of the nation's marine aggregate resource. We hope that it will
form a good basis for a future public SEA of this sector. In Wales,
the Welsh Assembly Government is developing a comprehensive Marine
Aggregates Dredging Policy for the Bristol Channel.
4.8 Some aspects of the implementation of
the SEA Directive remain unclear. Current draft Government guidance
to SEA implementation covers land use spatial planning (ODPM)
only, no guidance exists for the marine environment. The Directive
also requires monitoring of the implementation of plans and programmes
to identify unforeseen effects and to enable remedial action to
be taken. We assume that Departments responsible for each SEA
will be ensuring that this monitoring is undertaken, but this
also is not clear.
4.9 We would like to emphasise that fishing
activities in particular have considerable impact on the marine
environment. This industry is presently subject to little formal
environmental assessment at any stage. We note that most plans
or projects in this sector have a financial element but we consider
that, owing to the potential scale of impact, these projects should
still be subject to SEA regardless of the derogation for financial
or budget plans and programmes given in Article 3 (8) of the Directive.
5. MEHRAS—MARINE
ENVIRONMENT HIGH
RISK AREAS
5.1 In 1994, the report "Safer Ships
Cleaner Seas" (commonly known as the Donaldson Report) recommended
that a number of Marine Environment High Risk Areas (MEHRAs) of
high environmental sensitivity which are also at risk from shipping
should be identified around the UK coastline. MEHRAs were seen
as an aid to passage planning by ship's masters.
5.2 The Department for Transport (DfT) are
leading the work to establish MEHRAs with a steering group involving
many Government departments and including the statutory nature
conservation agencies. We worked closely with the contractors
undertaking the MEHRA work. A set of possible MEHRAs was identified
using a systematic, logical approach and DfT have undertaken substantial
work in identifying shipping patterns and risks that should also
assist with the implementation of protective measures. A first
draft of the MEHRA report including measures was circulated and
commented on by the steering group in May 2002. The nature conservation
agencies supplied comments and further information to update the
report in December 2002. Our concerns were mainly focussed on
how mariners were to be alerted to areas identified as MEHRAs,
the measures that would be implemented and how these measures
would be reviewed for effectiveness.
5.3 DfT is to produce a further draft of
the MEHRA report for circulation to the steering group members.
After agreement from steering group members, the document will
be subject to public consultation. We believe DfT plan to circulate
this document by end of 2003. Whilst we have concerns that the
designation of MEHRAs has been a lengthy process, we are confident
that significant progress will be made in the near future, although
it remains to be seen how informative they will be to mariners.
5.4 Some of the recent delay in the designation
of MEHRAs has been associated with the initiative, led initially
by France and Spain, to establish a Particularly Sensitive Sea
Area (PSSA) under the auspices of the International Maritime Organisation
(IMO) for the waters of the North East Atlantic Seaboard from
southern Portugal to north of Shetland. The proposal for the PSSA
was agreed at a recent meeting of the IMO Marine Environment Protection
Committee (MEPC) and has now moved on to further consideration
within IMO. The core of any protection offered by a marine designation
revolves around the measures associated with the area. Once this
PSSA has been formally adopted, it will put MEHRAs (within the
PSSA) in a suitable wider environment context and it will be easier
to introduce appropriate protective measures in relation to shipping.
12 September 2003
11 Cabinet Office, Code of practice on written consultation,
November 2000. Back
12
East Channel Association, Regional Environmental Assessment for
aggregate extraction in the eastern English Channel, January 2003. Back
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