Marine restoration activities have been highlighted in the press recently particularly the successful oyster restoration project in the Firth of Forth. So far many restoration projects in Scottish waters are principally small projects led by communities that seek to (re)create a habitat or introduce a previously decimated species. It has been highlighted to the Scottish Government by those looking to initiate larger scale restoration projects that there are two key challenges to a project’s namely: (i) a complicated consenting process which does not specifically cover restoration; and (ii) no clear mechanism for protecting the habitats and species that the projects are restoring.
In response to these challenges the Scottish Government launched a public consultation titled “Facilitating marine nature restoration through legislation” (the “Consultation”). The Consultation is intended to enable community groups and other stakeholders to provide feedback on the Scottish Government’s proposals for reform, which will then be used to influence policy developments for restoration projects. The ultimate aim of the Consultation is to move towards a basic consenting regime to enable restoration projects over the next decade which will improve and support the quality of marine and coastal ecosystems across Scotland. Responses are invited by 16th May.
Regulatory Context for Restoration Projects
Those looking to undertake a marine restoration project in Scottish waters are potentially subject to the legal requirement for a range of consents depending on where, how and what they are looking to restore. For instance, a project involving the seabed may need planning permission, a lease from Crown Estate Scotland, and if farming is intended an Aquaculture Production Business.
Where projects are purely for restoration, the mechanisms available to actually protect the habitats and species undergoing restoration are practically non-existent. Currently, the Scottish Ministers are only able to protect natural assets that have been restored via fisheries management measures, or by designating the area a Demonstration and Research Marine Protected Area. These limited powers consequently leave gaps for restored habitats and species to be impacted by potentially damaging activities such as construction, extraction and deposition of materials.
What are the proposals?
The Scottish Government is consulting on the following proposals:
- whether a registration process for restoration projects in the marine environment that fall under a certain threshold of environmental impact should be introduced, meaning that projects under the threshold would not be required to apply for a marine license; and
- whether the Scottish Ministers should have the power to extend the use of Marine Conservation Orders (“MCO”) to include the protection of marine habitats and species that have been, or are undergoing, restoration.
Presently, developers of restoration projects may have to apply for a marine license if they undertake construction, such as the installation of an artificial reef, or use a boat to deposit material (including shellfish and seagrass seeds) on the seabed. The requirement for a marine license applies irrespective of the size of the project or its potential positive or negative impact on the environment. The Consultation is looking for comments on the proposal for a register to be created, via secondary legislation, where restoration projects under a specified threshold would be registered with the Marine Directorate through a streamlined process which would avoid the time and costs associated with having to acquire a marine license. What that threshold would be will be consulted on separately. It is suggested that such a registration process would provide the Scottish Government with clear oversight and knowledge of the location of restoration projects which the Consultation notes is currently lacking.
MCOs are a statutory protection mechanism under the Marine (Scotland) Act 2010 that can be applied to restrict activity which may damage the natural features of a marine protected area (“MPA”). MCOs can be applied to (i) a designated MPA, in whole or part; or (ii) any overlapping or adjoining Special Areas of Conservation (under the Habitats Directive) or Special Protection Areas (under the Wild Birds Directive). The Consultation proposes to extend the application of MCOs to: (i) the protection of habitats and species which are undergoing or have undergone marine restoration; and (ii) to protect standalone Special Areas of Conservation and Special Protection Areas. If implemented, the Scottish Ministers could apply MCOs to protect restoration projects from potentially damaging activities such as entry to the area by boats or people, and/or from the disturbance of the animals and plants.
How Will the Consultation Impact Other Users of the Sea?
The Scottish Government recognises that there are groups of individuals who depend on the sea for their livelihood, and who could be impacted should the Consultation proposals be implemented. It is acknowledged within the Consultation that any changes should be fair and proportionate for all stakeholders, and that the proposals would not significantly change the Scottish Ministers’ ability to restrict fishing activity in the inshore marine environment. Ultimately the intention of the proposals is to create a simple consenting process for smaller restoration projects which protects marine species and habitats, to collate information on restoration projects and to determine whether extending the use of MCOs to protect restoration projects is appropriate and likely to succeed.
Consultation Deadline:
The Scottish Government is inviting responses on the Consultation until 16 May 2024.
Facilitating marine nature restoration through legislation - Scottish Government consultations - Citizen Space
Article was co-authored by Alanna Fockler.
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