Habitats Regulations Assessment
European Protected Sites
The Conservation of Habitats and Species Regulations 2010 provide for the designation and protection of ‘European sites’, the protection of ‘European protected species’, and the adaptation of planning and other controls for the protection of European Sites. The Regulations are the principal means by which the European Habitats Directive is implemented in England and Wales. The Regulations enable the designation and protection of areas that host certain important habitats and species out to 12 nautical miles offshore. These European protected sites are known as:
- Special Areas of Conservation (SACs) for the protection of certain habitats and species
- Special Protection Areas (SPAs) for the protection of certain wild bird species.
- As a matter of policy, though Ramsar sites are not designated under the above regulations, Welsh Government expects all competent authorities to treat listed Ramsar sites as European sites
Proposed marine renewable energy projects likely to significantly affect European protected sites either alone or in combination with other plans or projects, require special consideration by the licensing authorities Regulation 61 of the Habitats and Species Regulations 2010. The licensing authorities may only issue consents where the project will not adversely affect the integrity of European sites, or where there are Overriding Reasons of Public Interest (OROPI).
Habitat Regulations Assessment including Appropriate Assessment Screening
Any development project likely to affect the features for which Ramsar site, SAC or SPA has been designated would require assessment in the context of the Habitats Directive. This would take the form of a Habitats Regulation Assessment (HRA). It is important to note that features of protected sites located some distance from the actual development area may need to be considered within this process. For example, mobile species such as diving birds and marine mammals are known to utilise sea areas some distance away from sites designated for their protection.
The HRA process is a two stage process, the first stage being a screening process, more formally known as a ‘Test of Likely Significant Effects’ (LSE) to establish whether the proposals are likely to result in significant effects on European sites or Ramsar sites. If this establishes that significant effects are likely, or there is uncertainty whether significant effects are likely to result, then an Appropriate Assessment (AA) of the effects of the activity in view of the conservation objectives of the site(s) is required.
Unless the conclusion of the Appropriate Assessment is that there will be no adverse impact, the applicant will have to consider measures to mitigate any adverse effects. If appropriate and adequate mitigation measures are not possible, the project may only be consented if there is no alternative approach, that there are reasons of overriding public interest for it to proceed, and after a suitable compensation package has been agreed.
It is likely that marine energy projects in Wales will require a HRA, including AA. It is undertaken in Wales by NRW’s MLT and is an additional requirement to Environmental Impact Assessment (EIA). However, the ES should contain all of the necessary information to enable the HRA (including AA where necessary) to be undertaken. The applicant must therefore provide sufficient information in the ES to inform that the HRA.
In practical terms, the HRA process (which is separate to, but intrinsically linked to the EIA process) adds time (and cost) to the overall development process. How much depends on the complexity of the issues at hand.
It is important to note that European Marine Sites are not ‘no-go’ areas for development. Wave or tidal development can be permitted within any SAC/SPA/Ramsar site, subject to the HRA process undertaken as part of the application concluding that the development would not affect the “integrity” of the designated site. There are many precedents of offshore renewable projects being consented within the boundaries of SAC/SPA sites.
For Further Information
- Potential Nature Conservation and Landscape Impacts of Marine Renewable Energy Developments in Welsh Territorial Waters 2005
- Natural Resources Wales Generic Advice on EIA Scoping for Offshore Renewable Energy projects (non PINS)
- Offshore renewable energy checklist example – Tidal Turbine Project North Anglesey
- Marine Scotland Licensing and Consents Manual 2012
- Guidelines for Ecological Impact Assessment in the United Kingdom IEEM 2010
- Natural Resources Wales – The Conservation of Habitats and Species Regulations 2017
Habitat Regulations Assessment Scoping
If a plan or project was identified to have the potential to have a Likely Significant Effect (LSE) during screening then the developer should submit the following information to inform the HRA:
- Information about the project
- Information about the European and Ramsar sites
- Information to inform the assessment of LSE
This assessment considers whether the plan or project, either alone or in-combination with other plans or projects, is likely to have a significant effect on the interest features of a site considering the site’s conservation objectives. In assessing this, NRW’s MLT will look at the conservation objectives of these interest features and consider whether any effects upon them may be reasonably predicted as a consequence of the plan or project. Indirect and direct effects will be examined along with the likelihood of the effect occurring and at what magnitude.
If the assessment concludes LSE then an Appropriate Assessment will be required. If the result of this assessment is inconclusive, under the precautionary principle, the application will be treated as though it is likely to have a significant effect. Unless the conclusion from the Appropriate Assessment is that there will be no adverse impact, the applicant will have to consider measures to mitigate any adverse effects. If appropriate and adequate mitigation measures are not possible, the project may only be consented if there is no alternative approach, that there are reasons of overriding public interest for it to proceed, and after a suitable compensation package has been agreed.