Annex A: Workstream proposal for a new area-based protection mechanism
Although the workstream group was not specifically tasked to advise on any new legislative mechanism, we did give this matter considerable thought in reach the conclusions above. We therefore wish to outline our preliminary proposals on this for AGMACS' consideration.
As a first stage of the process we envisage, Marine Ecosystem Objectives ( MEOs) for Scotland would need to be agreed. These may emerge from the AGMACS process, but, if not, should be pursued as a matter of urgency during 2007. The existing biodiversity and OSPAR commitments will be important components of these MEOs. As part of this process, consideration should be given as to how each of the three 'pillars' of public policy, species-based and site-based protection mechanisms can contribute to achieving the MEO, and to whether any further changes are required to these existing mechanisms to ensure that they can meet the MEO.
Where it is clear that site-based protection has a part to play in achieving the MEO, scientific guidance should be sought on objective criteria by which a sufficient number of sites can be selected to best achieve that MEO. Scottish Natural Heritage should then be charged with advising Ministers on the most appropriate selection of sites, based on these criteria, necessary to ensure that the MEO is achieved. We suggest that these might be called Nationally Important Marine Areas ( NIMAs) 18. We recommend that SNH should propose these areas. In doing so, it should consult the Joint Nature Conservation Committee and other relevant bodies to ensure there is consistency between areas proposed in Scotland and those designated for similar reasons elsewhere in the UK and Europe.
For each NIMA, SNH should advise on a purpose or purposes, relating primarily to the MEO or MEOs to which it would contribute (as an example, this might be "to maintain, or restore, the biodiversity value of the NIMA"). SNH could then assess any risks which might prevent this purpose being achieved. Advice on the NIMAs, with their purposes and risk assessment, should then be submitted to the Scottish Marine Management Organisation (or whatever similar body is agreed following AGMACS deliberations) for verification.
In most cases, we believe that it will be possible to manage the risks impacting on the purpose of a NIMA by appropriate management mechanisms. We propose that these NIMAs should be included in the Marine Spatial Plan or Plans at the 'middle MSP level' as proposed by the parallel AGMACSMSP workstream (ie at the Scottish or regional sea level). We would recommend that NIMAs should be subjected to full public consultation and Strategic Environmental Assessment, perhaps as part of the approval process for the overall Marine Spatial Plan or Plans. Local partnerships should then be required to take this Plan or Plans (and thus the NIMAs) into account in developing each local Marine Spatial Plan.
We believe that the legislation required to establish this system should also introduce a requirement for all public bodies, in carrying our their functions, to further the purposes for which a NIMA was established, at least from such time as the NIMAs are approved within the overall Marine Spatial Plan or Plans.
In most cases, we believe that this public duty, combined with inclusion in Marine Spatial Plans, would be enough to contain the pressures which might prevent a NIMA from achieving its agreed purpose. They would thus provide a relatively light-touch mechanism to ensure that the sites are managed in a way consistent with their particular interest, and we believe that that this should be enough to meet OSPAR criteria as a marine protected area.
However, there may be some cases where the SNH risk assessment shows that this approach alone is not enough to guarantee that the site can continue to meet its proposed purpose. To ensure that this situation can be addressed, we propose the introduction of an additional legislative mechanism, which builds on the experience of the Conservation (Natural Habitats &tc) Regulations 1994, and provides similar protection for areas meeting these national priorities, including:-
- a full consultative process prior to their designation, and on subsequent management;
- a range of tools to ensure that the area is managed in ways consistent with its purpose and the features for which it was designated, including mechanisms (and resources) to encourage positive management;
- the introduction of offences for activities likely to damage the features for which the area was designated;
- the provision for Scottish Ministers to introduce Nature Conservation Orders to prohibit damaging activities where required.
The areas to which these powers apply would in effect be a more highly-protected subset of the overall set of Nationally Important Marine Areas. However, in the interests of transparency, there may be a case to give these more highly-protected areas an alternative name to make this added protection clearer. One option might be to 'brand' these formally as Marine Protected Areas, although this might cause confusion with the IUCN definition which clearly would apply more widely, including to NIMAs and Natura sites.
Such more highly-protected areas would be designated by Scottish Ministers, on the advice of SNH, when they are satisfied that such a designation is essential to ensure that the agreed Marine Ecosystem Objectives can be achieved. There should also be provision for the Marine Management Organisation (or whatever such body or bodies is agreed) to recommend to Ministers that an area should be designated as a more highly-protected area, where it finds that the Nationally Important Marine Area mechanism is not adequate to protect the special features of, or achieve the purpose of, any such area. Local partnerships should also be encouraged to advise the MMO where they feel that the establishment of a more highly-protected area may be necessary to meet local objectives.
In making this recommendation, we note that the OSPAR commitment is to establish an ecologically coherent network of well-managed marine protected areas by 2012. It is unlikely that a system of Marine Spatial Plans will have been in place for long enough by 2012 to ensure sound management of the Nationally Important Marine Areas we propose. We therefore suggest that an interim measure should be included in legislation to establish the new system, requiring public bodies, in carrying out their functions, to treat NIMAs, once approved, as if they were so identified in a Marine Spatial Plan, until such time as the Marine Spatial Plan or Plans is in place.