Scottish Government

Annex 7 - Marine Nature Conservation Workstream Report

AGMACS (06) 41

Advisory Group on Marine and Coastal Strategy

Marine Nature Conservation Workstream

Final Report to AGMACS Meeting on 11th December 2006

This paper presents the conclusions of the Marine Nature Conservation ( MNC) Workstream. It builds on the preliminary report, presented to the 4th meeting of AGMACS in September 2006 (paper AGMACS (06)27). It presents recommendations by the workstream group on how marine nature conservation legislative mechanisms can be made "fit for Scottish purpose in the 21st Century".

AGMACS is invited to offer its views on the analysis in this paper and to consider the conclusions presented.

1. Remit and objective of the workstream

The MNC Workstream was tasked to "report back… recommendations on the potential need for new legislation on marine nature conservation". Our starting point was the overarching vision in Seas the Opportunity (2005) of "clean, healthy, safe, productive and biologically diverse marine and coastal environments, managed to meet the long-term interests of nature and people". Our focus was on "healthy and biologically diverse marine environments", although our strong belief is that achieving this will also contribute to "productive marine environments". We did not consider issues relating to the landward side of the coastal zone, since these are addressed by established terrestrial nature conservation mechanisms.

We believe that our recommendations should contribute, in particular, to the following elements of the agreed AGMACS position paper on the Desired State of Scotland's Marine Environment (Paper AGMACS (06)24):-

• The Gothenburg biodiversity target of stopping biodiversity loss by 2010 has been broadly achieved in Scottish marine waters, and progress is being made towards the Scottish biodiversity target of reversing previous losses by 2030.
• Contributing towards this target, and to obligations under the OSPAR Convention, work is underway to complete an ecologically coherent network of well-managed Marine Protected Areas, building on the finalised Natura 2000 network of marine sites.
• Integrated Coastal Zone Management ( ICZM) and Marine Spatial Planning ( MSP) plans identify those marine [and coastal] areas supporting the most sensitive species and habitats, with advice from national authorities, and include an adaptive zonal management system to protect these species and habitats from damaging activities in each coastal region.

Our recommendations must also contribute to achieving by 2020 the vision of the Scottish Biodiversity Strategy, which aims to conserve biodiversity for the health, enjoyment and wellbeing of the people of Scotland, now and in the future. In particular, our recommendations must contribute to three of its key objectives:-

• To halt the loss of biodiversity and continue to reverse previous losses through targeted action for species and habitats.
• To restore and enhance biodiversity in all our urban, rural and marine environments through better planning, design and practice.
• To develop an effective management framework that ensures biodiversity is taken into account in all decision making.

Implementation of these proposals will also, in our view, put Scotland in a strong position to respond to the European Marine Strategy Directive, should this be adopted.

2. Approach adopted by workstream

The group began by considering the pressures on marine biodiversity which need to be addressed to ensure that the "Seas the Opportunity" vision can be achieved. In so doing, we were informed by a background paper on Marine Nature Conservation in Scotland (circulated to AGMACS as an annexe to paper AGMACS (06)27). This analysed the strengths and weaknesses of the various policy mechanisms in place that should contribute to marine nature conservation objectives, and concluded with an assessment of the key policy framework issues to be addressed. We considered each of these issues in turn in reaching the recommendations made below.

In particular, we considered whether existing legislative options can address current pressures on the marine environment satisfactorily. We reviewed whether changes are required to existing legislation to make it more 'fit for purpose', before considering whether there is a need for specific new legislation.

Our primary focus was on nature conservation needs in the zone out to 12 nautical miles (nm), for which responsibility has been devolved to Scottish Ministers, as well as those matters from 12nm to 200nm for which Scottish Ministers have responsibility. We make wider comments on nature conservation needs in this 12-200nm zone, but without prejudice as to whether any legislative changes required for this zone should be taken forward at the Westminster under the existing devolved settlement or at the Scottish level by agreement of both administrations. We are clear that there is a need to ensure that approaches adopted can be integrated across all administrative boundaries, from the local authority scale to those for wider regional seas, but we recognise that AGMACS might wish to recommend specifically Scottish mechanisms to meet the different social and economic conditions in Scottish waters.

3. Analysis of Marine Nature Conservation needs

Paper AGMACS (06)27 included our analysis of marine nature conservation needs. Since no concerns about this analysis were raised during the AGMACS meeting at which the paper was presented, we do not repeat that analysis here. We simply reiterate that the sea and seabed around the shores of Scotland support a tremendous variety of wildlife, with over 44,000 species of plants, animals and other organisms identified ( Seas the Opportunity). It is this rich biodiversity which makes the seas around Scotland some of the most economically productive in the world, supporting coastal communities through fishing and marine tourism, providing a safe and pleasant place for coastal communities to live and for other people to visit, and offering invaluable 'ecosystem services' to all of Scotland. This is central to the overarching vision of Seas the Opportunity, quoted above.

We believe that integrated action is key to meeting this integrated vision, and all of the work being undertaken by AGMACS will therefore contribute to this overall vision. However, we believe that specific, targeted action is also required to ensure that the marine environment remains healthy, biologically diverse, and thus productive. This was recognised in the establishment of an AGMACS Marine Nature Conservation Workstream, and is central to the recommendations that we make below.

In particular, we strongly believe that the objective of 'Living within Environmental Limits' must be central to any recommendations from AGMACS, and that, to achieve this, it will be essential to base all recommendations on the application of the Precautionary Principle, as defined by the Maastricht Treaty. Both these principles are integral to the agreed AGMACS vision of the Desired State of the Sea (paper AGMACS (06)24).

4. Recommendations of the Marine Nature Conservation Workstream

4.1 General recommendations on integrating marine nature conservation within the broader remit of AGMACS

1. On nature conservation and other grounds, there is a strong need for a better integrated decision making mechanism for managing our seas to ensure coherent planning and integrated management across administrative boundaries and sectors. This needs to be based on the ecosystem approach ¹⁶ and the precautionary principle, and needs to be operational at every level from local authority to the wider regional sea, however this is defined. This is a central focus for the work being undertaken by AGMACS.

2. The Marine Spatial Planning system will have a fundamental role in meeting that need, and in ensuring that broad biodiversity objectives are met. To achieve this, the MSP system will need an iterative mechanism to measure outcomes against ecosystem objectives, with policy refined in the light of this assessment. We note the recommendation from the MSP workstream that the marine spatial planning system would need a statutory basis, and believe that this would be helpful in ensuring that MSP could contribute to biodiversity objectives.

3. While many strategies, including Seas the Opportunity, contain commitments to the ecosystem approach, we believe that work is urgently needed to decide upon the best overall geographic management units, building on that approach, rather than these being different for each different strategy as at present. We believe that analysis is also necessary to ensure that these different strategies are fully integrated within each ecosystem management unit.

4. There is a need to identify priority marine areas and features, and to ensure the good management of these. We believe the MSP and ICZM mechanisms will provide the primary tool for this management. To ensure that the vision of 'biologically diverse marine… environments' can be achieved, the body or bodies charged with taking forward MSP and ICZM should therefore be asked to take the objectives of marine nature conservation fully into account in their work, with advice from the relevant authorities. Where targeted mechanisms are shown to be necessary for nationally important marine areas, as discussed later, these should also be fully integrated into the MSP and ICZM systems.

5. There are gaps and inconsistencies in legislative measures to manage the marine environment out to and beyond 12 nautical miles, as the current Defra consultation paper recognises. Debate is needed at the UK and European level on how these gaps and inconsistencies should be addressed, and Scottish Ministers and the bodies represented on AGMACS must have a strong role in this debate. From the marine nature conservation perspective, the main requirement is that measures relating to nature conservation can easily be integrated across administrative boundaries, including the boundary currently placed at 12 nautical miles (nm), and that these can be integrated into measures for the wider regional seas (however these are defined). While these matters are Westminster competences and thus beyond the strict remit of AGMACS, the workstream group welcomes Defra's proposals to extend species protection measures equivalent to those in the Wildlife & Countryside Act 1981 to the zone from 12 to 200nm, and to introduce a 'biodiversity duty' on all public bodies and office holders when carrying out their functions in this zone: in this context, we commend the definition of this duty in the Nature Conservation (Scotland) Act 2004.

6. We believe there is a need to review whether more of the species on the List of Species and Habitats considered to be of Principal Importance for the purpose of Biodiversity Conservation in Scotland should be included within the schedules of the Wildlife & Countryside Act 1981 (as amended), to afford them legal protection within Scottish territorial waters.

7. At present, marine nature conservation measures are not always enforced effectively because of practical and organisational difficulties. To address this issue, opportunities should be sought to encourage agencies to work together more effectively and to share responsibilities on enforcement. Gathering of relevant scientific data should be encouraged to assist prioritisation of resources. The practicality of enforcement should be taken into account in designing new legislation to ensure the most efficient enforcement mechanisms. However, even if these refinements are put in place, it seems probable that a greater resource base will also be required for effective enforcement. At present, our understanding is that only a constable can enforce certain legislation at sea, and, in the absence of a large marine police force, this makes this legislation ineffectual. This needs to be clarified by the Scottish Fisheries Protection Agency. Addressing this issue may either require legislative change (for example to allow officers from the SFPA or MMO to be 'designated' as constables while carrying out their duties at sea), or the provision of considerably greater funding to police forces, so that they can effectively enforce all criminal law at sea.

8. The background paper on Marine Nature Conservation in Scotland (annexe to paper AGMACS (06)27) lists a range of activities which potentially impact on the marine environment, but which at present are unregulated or unlicensed. In time, all of these may need some form of statutory back-up, but initial priority should be given to introducing measures to address those activities causing most risk to the marine environment. We note that Defra has commissioned a review by the University of Hull of unlicensed activities and that this concludes that bait digging/collection, water-based recreation, and unlicensed commercial fishing activities are the three unlicensed activities which pose the greatest threat to marine biodiversity. We believe this report will be useful in developing our approach to these matters in Scotland. It seems unlikely that these activities can be managed effectively by voluntary agreements alone, and legislative change will probably be needed to bring some at least of these activities within the ambit of licensing regimes.

9. At present, a range of objectives for the marine environment are covered in a large assortment of papers and policy statements, including Seas the Opportunity, the AGMACS Desired State paper, the Scottish Biodiversity Strategy, the Scottish Sustainable Development Strategy, Safeguarding Sealife and other documents. To facilitate planning for the marine environment and to help take forward the outcomes of AGMACS, we recommend that these should be drawn together during 2007 and published as a Scottish set of Marine Ecosystem Objectives ( MEOs), nested within a wider set of MEOs for UK waters and for the Regional Seas around Scotland. These MEOs should be used to inform any statutory mechanisms that are introduced as a result of the AGMACS process, and there could be some benefit in giving MEOs themselves a statutory basis within any legislative change that is introduced. A system of monitoring and adaptive management should then be put in place to ensure that these MEOs are being met, or to refine legislation as required to ensure that they are met.

10. Another area of marine nature conservation concern is the lack of any comprehensive mechanism or lead body for identifying and controlling potentially harmful alien or invasive marine species. To this end, we welcome the SEERAD/Defra work on alien and invasive species, and urge that it should be implemented as the highest priority once completed.

11. It is essential for all the actions for marine nature conservation proposed in this paper, and indeed all the measures proposed by AGMACS, to be underpinned by sound science, and for an adaptive management system to be put in place to ensure that plans, policies and legislation can be amended to take account of the lessons from the science. There is an urgent need for more comprehensive biological mapping of marine landscapes and for a more effectively integrated marine information network. To that end, we strongly support the recommendations of the AGMACS science workstream.

4.2 Improving the system of nature conservation in Scottish marine waters

To be effective, nature conservation in the marine (as in any other) environment, must be based on three 'pillars':-

• The Policy Pillar: Public policy must be guided to ensure that it takes the needs of biodiversity fully into account. In the marine environment, Marine Spatial Planning will have a central role in achieving this objective, as noted above. Licensing in the marine environment and broader management policies for marine activities will also make a major contribution to the protection of marine biodiversity.
• The Species Conservation Pillar: Certain impacts on biodiversity, particularly those that result from the thoughtless or irresponsible activities of individuals or groups of individuals on vulnerable species, are best controlled by legal measures that apply throughout Scotland, such as the provisions of the Wildlife & Countryside Act 1981 as amended by the Nature Conservation (Scotland) Act 2004.
• The Site Protection Pillar: Even with these two 'pillars' effectively in place, a third element is required which offers targeted protection for sites which are particularly important for the species or habitats which they hold. Such measures are already in place in the marine environment for species and habitats listed in the annexes of the EC Habitats Directive, in the range of marine Special Areas of Conservation around Scotland, and Special Protection Areas for sea birds are under development to implement the EC Birds Directive. Together these sites form Scotland's contribution to the 'Natura network' and are an important element of our domestic conservation policy. The requirements of the OSPAR convention are currently under consideration.

Any measures to protect the marine environment will need to be considered against the Marine Ecosystem Objectives we propose in 4.1 (9) above. Although these are not yet in place, two existing policy commitments form a partial basis for Marine Ecosystem Objectives within Scotland:-

• The EU Gothenburg commitment to stop biodiversity loss by 2010.
• The commitment in the Scottish Biodiversity Strategy to halt the loss of biodiversity and continue to reverse previous losses through targeted action for species and habitats by 2030.

To meet these challenging objectives will require the rigorous application of all three 'pillars' of biodiversity conservation in the marine environment.

The workstream group believe that the wider work of AGMACS will make a significant contribution to the first of these pillars, provided that the points outlined in section 4.1 above are taken into account. With respect to the second pillar, we have also commented in section 4.1 on the need for more effective enforcement of existing species conservation measures in the marine environment, and on the need to review whether more of the marine species on the List of Species and Habitats considered to be of Principal Importance for the purpose of Biodiversity Conservation in Scotland should be included within the schedules of the Wildlife & Countryside Act 1981 (as amended).

However, we also believe that one of the particular reasons why the Marine Nature Conservation workstream was established was to advise on whether there was any need for changes or additions to existing site protection legislation for the marine environment in the Scotland, and we therefore now consider this matter in some detail, while emphasising that this must be seen in the context of the two other pillars described above.

Two other UK government commitments also point to the need for targeted area protection mechanisms:-

• The commitment under the OSPAR Convention to establish an ecologically coherent network of well-managed marine protected areas by 2010. We note that the Convention's aims specifically include one to "protect and conserve areas that best represent the range of species, habitats and ecological processes in the OSPAR maritime area".
• The commitment under the World Summit on Sustainable Development ( WSSD) (which was also attended by the Scottish First Minister) to "develop and facilitate the use of diverse approaches and tools, including…the establishment of marine protected areas consistent with international law and based on scientific information, including representative networks, by 2012".

In committing to both these international agreements, it was recognised that such site-based protection mechanisms also make a significant contribution to domestic conservation policies. In reviewing options for domestic legislation, we need in particular to consider whether these options can achieve the text we have quoted in italics above, which may prove particularly challenging.

The 'Natura network' of marine Special Areas of Conservation, along with marine Special Protection Areas yet to be designated, forms a significant basis for such a network of marine protected areas in Scotland, but the workstream group is not persuaded at this point in time that these alone can meet the OSPAR and WSSD commitments, in particular with regard to powers to designate any OSPARMPAs that do not qualify as Natura sites but which may be necessary to ensure ecological coherence. The criteria for selection of Natura sites and OSPARMPAs differ, and the strict threshold criteria for Natura selection may be too high to allow selection of a site which is required to ensure ecological coherence within a network. In addition, Natura sites are required for 3 non-bird marine taxa of European importance (cetaceans, grey seals and harbour seals) and several marine habitat types found in territorial waters (reefs, sandbanks slightly covered by sea at all times, lagoons, estuaries, large shallow inlets and bays, intertidal mud and sandflats, and submerged or partially submerged sea caves) and, while sites selected for these features or wild birds may afford protection to other species and habitats found within the boundary, Scottish Ministers may wish to select sites for other features identified by OSPAR or for national priorities and these may not always correspond with the Natura network.

We therefore conclude that further site-based protection mechanisms may be needed to meet the OSPAR and WSSD commitments and to meet the two marine biodiversity objectives noted above.

In developing new site-based protection mechanisms, we recommend that consideration should also be given to conservation priorities at the Scottish level, to ensure representativity within the Scottish network of marine protected areas, and to ensure we can meet domestic Marine Ecosystem Objectives. We believe there may be species and habitats which are particularly valued within Scotland but which are not identified as international priorities. We understand that Scottish Environment LINK is currently undertaking a review of such potential Scottish priorities, to be published early in 2007, and we commend this to inform subsequent considerations.

However, by way of example only and without commitment, we would suggest there might be a need to consider site-based or other protection mechanisms for primarily Scottish priorities such as:-

• fjordic sealochs (which are too deep to qualify as 'shallow inlets and bays' under the Habitats Directive, but are a major biodiversity feature of north-west Scotland and the islands );
• flame-shell reefs (which do not presently meet the UK criteria as 'biogenic reefs' under the Habitats Directive);
• sites including important concentrations of and/or representative populations of bird species that are not on Annex 1 of the EC Birds Directive or regularly-occurring migratory species - the black guillemot is an example of a species in this category for which the Birds Directive currently offers no site-based protection mechanism;
• sites which hold nationally-important numbers of species identified as international priorities, but which do not meet the strict international threshold criteria for designation as Natura sites;
• sites identified as being of particular importance for significant concentrations or representative populations of Species and Habitats considered to be of Principal Importance for the purpose of Biodiversity Conservation in Scotland
• sites which are particularly rich in representative Scottish biodiversity;
• areas identified as being unchanged or relatively unchanged from human activities, both for their value in illustrating what a "clean, healthy, safe, productive and biologically diverse marine environment" should look like, and because of their particularly high value to marine biodiversity.
• any other domestic priorities to be identified through further discussion and consultation.

While the primary objective of establishing any such marine protected areas must be the protection of biodiversity, we note in passing that such marine protected areas may also offer economic benefits e.g. through increased tourism.

4.3 Existing mechanisms for establishing marine protected areas in Scotland

The workstream group has reviewed existing nature conservation measures to see if these can be applied in the marine environment. The system of Sites of Special Scientific Interest ( SSSIs) under the Wildlife & Countryside Act 1981, as amended by the Nature Conservation (Scotland) Act 2004, is essentially a terrestrial system. Although it can help protect intertidal habitats, it does not extend below mean low water springs. The majority of mechanisms to protect SSSIs apply on the individual land owners/managers, and on the terrestrial planning system, and it would not be feasible to attempt to replicate these in the marine environment.

Marine Nature Reserves under the Wildlife & Countryside Act 1981 can be designated out to 12nm, but they rely entirely on the creation of byelaws to protect them and such byelaws cannot interfere with the functions of any other regulator or restrict the lawful activity of vessels. They are therefore a somewhat clumsy and restricted mechanism, which we do not believe could be meet the marine objectives that AGMACS is now proposing for Scotland.

Only one existing mechanism therefore remains valid for the establishment of marine protected areas ¹⁷ for biodiversity purposes in Scotland: the Conservation (Natural Habitats &tc) Regulations 1994. These provide direct protection to a range of animals, plants and habitats which are listed in the annexes of the EC Habitats Directive, a relatively small number of which are marine. They allow for the establishment of marine 'Natura' sites (Special Protection Areas and Special Areas of Conservation) and for the provision of Special Nature Conservation Orders to protect the special interest of these sites, should these be required. The Regulations apply to 12nm, and Defra is currently consulting on proposals to extend these out to 200nm in UK waters. Regulation 3(3) places a duty on any competent authority having functions relevant to marine conservation to exercise these functions, in relation to marine areas, so as to secure compliance with the requirements of the Habitats Directive. Regulation 5 specifies which are relevant authorities in relation to a marine area or European marine site: SNH, local authorities, harbour authorities, lighthouse authorities, river purification authorities (superseded by SEPA), and district salmon fishery boards.

Natura sites are selected to reflect the geographical range of a particular feature. However, under the Regulations, they need to meet strict threshold criteria before they can be designated and thus they are poorly suited to creating connectivity between sites so as to ensure an ecologically coherent network, as required by the OSPAR criteria, and the Regulations are not targeted at establishing representative networks.

Natura sites created under the Regulations can give incidental protection to other features that might be of national importance, but they are primarily directed at the international features for which the site was established. This incidental protection is non-statutory and non-binding, and, as such, may not meet purely domestic aspirations to protect areas regarded as of importance for Scotland.

Therefore, while there might be options for adapting the Conservation (Natural Habitats &tc) Regulations 1994 to meet OSPAR priorities, the workstream group is unable at this time to advise AGMACS with any certainty that these Regulations alone can deliver the OSPAR and WSSD commitments.

Accordingly, on a precautionary basis, we recommend that consideration should be given to establishing a new flexible regulatory mechanism for area-based biodiversity conservation in Scottish marine waters. Such a flexible regulatory mechanism would also provide a means to identify and manage areas identified as being of national importance for achieving the agreed Marine Ecosystem Objectives for Scotland.

4.4 Proposal for a new area-based protection mechanism

In considering a new system for area-based biodiversity protection in Scotland, the workstream group is strongly of the view that any areas proposed under this system:-

a) must be selected purely on objective scientific criteria;

b) must be selected so as to contribute to one or more agreed Marine Ecosystem Objective(s);

c) must have their purpose clearly identified;

d) must be fully integrated into the relevant Marine Spatial Plan;

e) must be managed with the lightest-possible touch necessary to secure the overall purpose for which they were proposed;

f) must be fully transparent in their selection process and management prescriptions.

Bearing these requirements in mind, we wish to propose one possible model that meets these requirements, whilst not ruling out further debate on alternative models. Since the workstream group was not specifically tasked with advising on a new legislative mechanism, we outline our preliminary thoughts on this in Annex A for AGMACS' consideration.

5. Conclusions on need for legislative change

The Marine Nature Conservation workstream was specifically charged to "report back… recommendations on the potential need for new legislation on marine nature conservation".

To ensure that the vision of 'healthy and biologically diverse' marine [and coastal] environments, and the objectives of the Scottish Biodiversity Strategy, can be achieved, we have concluded that new or amended legislation will be needed, at least in the following areas:-

a) to allow for more effective enforcement of existing and new criminal law at sea, specifically to allow agencies other than constables to enforce nature conservation legislation at sea, or to allow appropriate agency staff (eg from the SFPA or MMO) to be 'designated' as constables;

b) to introduce a licensing requirement on a range of activities which at present are unregulated or unlicensed, prioritised to those activities causing most risk to the marine environment;

c) to establish a flexible new system for the protection for Nationally Important Marine Areas identified by Scottish Ministers, on the basis outlined in Annex A; to integrate that within the proposed statutory system of marine spatial planning; and to introduce a duty on public bodies to take that system into account in carrying out their functions;

d) as part of that system, to introduce a legislative mechanism, broadly equivalent to the Conservation (Natural Habitats &tc) Regulations 1994, which would allow Ministers greater powers, where such powers were needed to prevent damage to the special features for which any of these Nationally Important Marine Areas were identified; for transparency, areas to which these powers apply might be identified by an alternative name;

e) within that system, to consider whether Marine Ecosystem Objectives should be given a statutory basis;

f) subject to c) and d) above, to repeal outdated legislation allowing for the establishment of Marine Nature Reserves in Scotland.

While it is not specifically a Scottish competence, and thus outwith the remit of AGMACS, we also support the proposal to extend species protection measures equivalent to those in the Wildlife & Countryside Act 1981, as amended by the Nature Conservation (Scotland) Act 2004, into the zone from 12 to 200 nautical miles, and to extend the 'biodiversity duty' on all public bodies and office holders into this zone, and would commend the definition of that duty in the Nature Conservation (Scotland) Act.

Michael Scott
(on behalf of AGMACS Marine Nature Conservation Workstream)
December 1st 2006