Statutory Instruments
Environmental Protection
Marine Management
Made
16th June 2010
Laid before Parliament
22nd June 2010
Coming into force
15th July 2010
The Secretary of State is designated(1) for the purposes of making Regulations under section 2(2) of the European Communities Act 1972(2) in relation to the environment.
It appears to the Secretary of State that it is expedient for any reference to Annex 1, 3, 4 or 5 of Directive 2008/56/EC of the European Parliament and of the Council of 17th June 2008 establishing a framework for Community action in the field of marine environmental policy(3) to be construed as a reference to that Annex as amended from time to time.
The Secretary of State makes these Regulations in exercise of the powers conferred by that section, and by paragraph (1A) of Schedule 2 to the European Communities Act 1972.
1.—(1) These Regulations may be cited as the Marine Strategy Regulations 2010 and come into force on 15th July 2010.
(2) These Regulations apply only in relation to the marine strategy area.
2.—(1) In these Regulations—
“baseline” means the baseline from which the breadth of the territorial sea is measured;
“coastal water” has the meaning given by the Water Framework Directive (set out in Part 3 of Schedule 1);
“the Commission” means the European Commission;
“competent authority” means—
in relation to the Scottish inshore region and the Scottish offshore region, the Scottish Ministers;
in relation to the Welsh inshore region, the Welsh Ministers;
in relation to the Northern Ireland inshore region, the Department of the Environment in Northern Ireland;
in relation to all other areas within the marine strategy area, the Secretary of State;
“Counsel General” has the same meaning as in the Government of Wales Act 2006(4);
“devolved function”, in relation to the marine strategy area, means any function which is not a retained function as respects that area;
“devolved marine area” means—
in relation to any function exercisable by the Scottish Ministers, the Scottish inshore region and the Scottish offshore region,
in relation to any function exercisable by the Welsh Ministers, the Welsh inshore region, and
in relation to any function exercisable by the Department of the Environment in Northern Ireland, the Northern Ireland inshore region;
“devolved policy authority” means the Scottish Ministers, the Welsh Ministers and the Department of the Environment in Northern Ireland;
“the Directive” means Directive 2008/56/EC of the European Parliament and of the Council of 17th June 2008 establishing a framework for Community action in the field of marine environmental policy(5);
“enactment” includes any Act of the Scottish Parliament, Northern Ireland legislation, any Act or Measure of the National Assembly for Wales and subordinate legislation, and for this purpose “subordinate legislation” means Orders in Council, orders, rules, regulations, schemes, warrants, byelaws and other instruments made or to be made under any Act or under any Act of the Scottish Parliament, Northern Ireland legislation or under any Act or Measure of the National Assembly for Wales;
“First Minister”, other than in relation to Northern Ireland, has the same meaning as in the Government of Wales Act 2006;
“local authority” means—
in relation to England, a county council, a district council, a parish council, a London borough council, the Common Council of the City of London or the Council of the Isles of Scilly;
in relation to Scotland, a council established by section 2(1) of the Local Government etc. (Scotland) Act 1994(6) for any local government area;
in relation to Wales, a county council, a county borough council or a community council;
in relation to Northern Ireland, a district council;
“marine protected area” means any geographically defined area within the marine strategy area which is subject to measures for the conservation of species or habitats;
“marine strategy” has the meaning given by Part 2 of Schedule 1;
“the marine strategy area” has the meaning given by regulation 3;
“marine waters” has the meaning given by regulation 3(3);
“Northern Ireland body” means the Foyle, Carlingford and Irish Lights Commission(7) and the following Departments in Northern Ireland: the Department of Agriculture and Rural Development; the Department of Culture, Arts and Leisure; the Department of Enterprise, Trade and Investment; the Department for Regional Development;
“Northern Ireland inshore region” means the area of sea within the seaward limits of the territorial sea adjacent to Northern Ireland;
“Northern Ireland Minister” has the same meaning as in the Northern Ireland Act 1998(8), but includes a reference to the First Minister and the deputy First Minister, within the meaning of that Act;
“Northern Ireland offshore region” means so much of the Northern Ireland zone as lies beyond the seaward limits of the territorial sea;
“Northern Ireland public authority” means any public authority so far as exercising functions in relation to which functions are exercisable by a Northern Ireland Minister or a Northern Ireland department;
“Northern Ireland zone” has the same meaning as in the Northern Ireland Act 1998 (see section 98(1) and (8) of that Act);
“public authority” means a public body or public office holder, other than—
a Minister of the Crown within the meaning of the Ministers of the Crown Act 1975(9);
a government department;
the Scottish Ministers;
the Welsh Ministers, the First Minister or the Counsel General;
a Northern Ireland Minister; or
a Northern Ireland department;
“public body” includes—
a local authority;
a local planning authority; and
a statutory undertaker;
“public office holder” means a person holding any of the following offices—
an office under the Crown;
an office created or continued in existence by a public general Act or by legislation passed by the Scottish Parliament, the National Assembly for Wales or the Northern Ireland Assembly;
an office the remuneration in respect of which is paid out of money provided by Parliament or a devolved legislature;
“relevant function” has the meaning given in regulation 4(2);
“renewable energy zone” means any area within which the rights to which section 84 of the Energy Act 2004(10) applies are exercisable;
“retained function” has the meaning given in Part 1 of Schedule 1;
“Scottish inshore region” means the area of sea within the seaward limits of the territorial sea adjacent to Scotland;
“Scottish offshore region” means so much of the Scottish zone as lies beyond the seaward limits of the territorial sea, and areas of sea within the marine strategy area which lie outside the Scottish zone but which are nearer to any point on the baselines from which the breadth of the territorial sea adjacent to Scotland is measured than to any point on the baselines in any other part of the United Kingdom;
“Scottish public authority” means any public authority so far as exercising functions in relation to which functions are exercisable by the Scottish Ministers;
“Scottish zone” has the same meaning as in the Scotland Act 1998(11) (see section 126(1) and (2) of that Act);
“secondary devolved function” means—
as respects the Scottish inshore region or the Scottish offshore region, any secondary devolved Scottish function;
as respects the Welsh inshore region or the Welsh offshore region, any secondary devolved Welsh function;
as respects the Northern Ireland inshore region or the Northern Ireland offshore region, any secondary devolved Northern Ireland function;
“secondary devolved Northern Ireland function” means any of the following—
a function exercisable by a Northern Ireland public authority,
a function exercisable by any other public authority, so far as relating to transferred or reserved matters (within the meaning of the Northern Ireland Act 1998),
other than any function in relation to which functions are exercisable by a Minister of the Crown or government department(12);
“secondary devolved Scottish function” means any of the following—
a function exercisable by a Scottish public authority,
a function exercisable by any other public authority, so far as not relating to reserved matters (within the meaning of the Scotland Act 1998),
other than any function in relation to which functions are exercisable by a Minister of the Crown or government department(13);
“secondary devolved Welsh function” means any of the following—
a function exercisable by a Welsh public authority,
a function conferred or imposed on a public authority by or under a Measure or Act of the National Assembly for Wales,
a function exercisable by a public authority, so far as relating to matters within the legislative competence of the National Assembly for Wales,
other than any function in relation to which functions are exercisable by a Minister of the Crown or government department(14);
“statutory undertaker” means a person who is, or is deemed to be, a statutory undertaker for the purposes of any provision of Part 11 of the Town and Country Planning Act 1990(15), Part 10 of the Town and Country Planning (Scotland) Act 1997(16) or the Planning (Northern Ireland) Order 1991(17);
“transitional waters” has the meaning given by the Water Framework Directive (set out in Part 3 of Schedule 1);
“Water Framework Directive” means Directive 2000/60/EC of the European Parliament and of Council of 23rd October 2000 establishing a framework for Community action in the field of water policy, as amended(18);
“Welsh inshore region” means the area of sea within the seaward limits of the territorial sea adjacent to Wales;
“Welsh offshore region” means so much of the Welsh zone as lies beyond the seaward limits of the territorial sea;
“Welsh public authority” means any public authority so far as exercising functions in relation to which functions are exercisable by the Welsh Ministers, the First Minister or the Counsel General; and
“Welsh zone” has the same meaning as in the Government of Wales Act 2006(19) (see section 158(1) and (3) of that Act).
(2) Any expression used both in these Regulations and in the Directive and not otherwise defined in these Regulations has the same meaning for the purposes of these Regulations as it has for the purposes of the Directive, and the definitions contained in the Directive of expressions used in these Regulations are set out in Part 2 of Schedule 1.
(3) References in these Regulations to an Annex or an Article are to an Annex to, or an Article of, the Directive, unless otherwise specified.
(4) References in these Regulations to Annex 1, 3, 4 or 5 are references to that Annex as amended from time to time.
3.—(1) For the purpose of these Regulations, “the marine strategy area” means—
(a)the area of sea within the seaward limits of the territorial sea adjacent to the United Kingdom, and the sea bed and its subsoil in that area of sea;
(b)any area of sea within the limits of the renewable energy zone and the sea bed and its subsoil in that area of sea; and
(c)the sea bed and its subsoil within the limits of any areas designated under section 1(7) of the Continental Shelf Act 1964(20) (so far as not falling within the area mentioned in paragraph (b)).
(2) In paragraph (1), “sea”—
(a)includes coastal water;
(b)does not include any transitional waters.
(3) For the purpose of these Regulations, “marine waters” means waters of the sea, and the seabed and subsoil of the waters in question.
4.—(1) The Secretary of State, devolved policy authorities and each Northern Ireland body must exercise their functions, so far as they are relevant functions, so as to secure compliance with the requirements of the Directive, including the requirement in Article 1 to take the necessary measures to achieve or maintain good environmental status of marine waters within the marine strategy area by 31st December 2020.
(2) “Relevant function” means a function under these Regulations or, so far as material, a function under or by virtue of any other enactment, including in particular, an enactment specified in Schedule 2.
5.—(1) The Secretary of State must develop a marine strategy for the marine strategy area in order to—
(a)protect and preserve the marine environment, prevent its deterioration or, where practicable, restore marine ecosystems in areas where they have been adversely affected; and
(b)prevent and reduce inputs into the marine environment, with a view to phasing out pollution, so as to ensure they do not give rise to any significant impacts on or risks to marine biodiversity, marine ecosystems, human health or legitimate uses of the sea.
(2) The marine strategy must apply an ecosystem-based approach to the management of human activities within the marine strategy area.
(3) The marine strategy must consist of the elements required by regulations 10 to 14.
(4) For the purpose of this regulation, an “ecosystem-based approach” means an approach which—
(a)ensures that the collective pressure of human activities within the marine strategy area is kept within levels compatible with the achievement of good environmental status; and
(b)does not compromise the capacity of marine ecosystems to respond to human-induced changes.
6.—(1) In order to assist the Secretary of State in the development of the marine strategy under regulation 5, each devolved policy authority must provide the Secretary of State with—
(a)proposals for—
(i)the establishment of the monitoring programmes for the devolved marine area;
(ii)the determination of a programme of measures for the devolved marine area; and
(iii)the review or update of such monitoring programmes or programme of measures.
(b)information, including information for any review or update, to support—
(i)the assessment of marine waters for the devolved marine area;
(ii)the determination of the characteristics of good environmental status for any area within the devolved marine area which is distinct as regards its hydrological, oceanographic and biogeographic features; and
(iii)the development of environmental targets and indicators for any area within the devolved marine area which is distinct as regards its hydrological, oceanographic and biogeographic features; and
(c)such other information as the Secretary of State may reasonably require for the purpose of securing compliance with the Directive.
(2) The information required under paragraph (1) must be sent to the Secretary of State by such date as the Secretary of State may direct.
7.—(1) In taking such steps as are necessary for the purpose of compliance with regulation 6(1)(a), the competent authorities must exercise their functions under these Regulations so as to secure consistency in relation to the development of a marine strategy in the marine strategy area, and carry out such co-ordination amongst themselves as is necessary for the purpose of securing such consistency.
(2) A devolved policy authority must obtain the consent of the Secretary of State for inclusion within the proposals required by regulation 6(1)(a) of any proposal which affects or is likely to affect the exercise of any retained function.
(3) Before adopting or revising any element of the marine strategy which affects or is likely to affect the exercise of any devolved function, the Secretary of State must obtain the consent of the relevant devolved policy authority.
8.—(1) The devolved policy authorities and the Secretary of State must co-operate in exercising any relevant function in relation to the implementation of the marine strategy in the marine strategy area including, in particular—
(a)in relation to the exercise of any relevant function of the Secretary of State in respect of any activity carried out within the Scottish inshore region, the Scottish offshore region, the Northern Ireland inshore region or the Welsh inshore region; and
(b)in relation to the exercise of any relevant function of a devolved policy authority or Northern Ireland body in respect of any activity carried out within the Northern Ireland offshore region or the Welsh offshore region.
(2) A devolved policy authority must obtain the consent of the Secretary of State before it exercises any relevant function for the purpose of implementing the Directive, where the exercise of that function relates to any activity which affects or is likely to affect the exercise of any retained function.
(3) The Secretary of State must obtain the consent of the relevant devolved policy authority before the Secretary of State exercises any relevant function for the purpose of implementing the Directive, where the exercise of that function relates to any activity which affects or is likely to affect the exercise of any devolved function.
9. The Secretary of State, devolved policy authorities, each Northern Ireland body and each public authority must, in exercising any functions so far as affecting the marine strategy area, have regard to any marine strategy developed under regulation 5.
10.—(1) By 15th July 2012, the Secretary of State must carry out an assessment of the marine waters within the marine strategy area in accordance with Article 8, taking account of available existing data.
(2) The Secretary of State must periodically review and update the results of the assessment required by paragraph (1), by each sixth anniversary of the date on which that assessment was published.
11.—(1) By 15th July 2012, the Secretary of State must determine the characteristics of good environmental status for the marine waters in the marine strategy area in accordance with Article 9—
(a)in consultation with the devolved policy authorities; and
(b)in accordance with regulation 7(3).
(2) The characteristics must be determined on the basis of the qualitative descriptors in Annex 1.
(3) The Secretary of State must take account of—
(a)the list of elements in Table 1 of Annex 3; and
(b)the impact of human activity in the marine strategy area, having regard to the list of pressures and impacts in Table 2 of that Annex.
(4) The Secretary of State must periodically review and update the characteristics of good environmental status determined under paragraph (1), in consultation with the devolved policy authorities and in accordance with regulation 7(3), by each sixth anniversary of the date on which those characteristics of good environmental status are determined, to ensure that those characteristics are kept up to date.
12.—(1) By 15th July 2012, the Secretary of State must establish environmental targets and indicators for the marine waters in the marine strategy area to help secure good environmental status for those marine waters, in accordance with Article 10—
(a)in consultation with the devolved policy authorities; and
(b)in accordance with regulation 7(3).
(2) In establishing targets and indicators, the Secretary of State must take account of the indicative lists of pressure and impacts in Table 2 of Annex 3 and the characteristics in Annex 4.
(3) The Secretary of State must periodically review and update the environmental targets and indicators established pursuant to paragraph (1), in consultation with the devolved policy authorities and in accordance with regulation 7(3), by each sixth anniversary of the date of the establishment of those targets and indicators, to ensure that the targets and indicators are kept up to date.
13.—(1) By 15th July 2014, the competent authority must establish and implement a programme for monitoring the environmental status of the marine waters in the marine strategy area, in accordance with Article 11.
(2) The competent authority must establish and implement the monitoring programme—
(a)on the basis of the indicative lists of elements in Annex 3;
(b)on the basis of the requirements in Annex 5; and
(c)by reference to the environmental targets established under regulation 12.
(3) The competent authority must periodically review the monitoring programme by each sixth anniversary of the date on which that monitoring programme was established, to ensure that the monitoring programme is kept up to date.
14.—(1) By 31st December 2015, the competent authority must publish a programme of measures necessary to achieve or maintain good environmental status for the marine waters in the marine strategy area, in accordance with Article 13.
(2) The competent authority must develop the programme of measures on the basis of the assessment required by regulation 10 taking account of—
(a)the environmental targets and indicators required by regulation 12;
(b)the control measures listed in Annex 6; and
(c)the social and economic impact of any proposed measure.
(3) Any programme of measures must include spatial protection measures, to contribute to coherent and representative networks of marine protected areas, in accordance with Article 13(4).
(4) By 31st December 2013, the competent authority must publish information on marine protected areas.
(5) The competent authority must include in the programme of measures a description of how the measures will be implemented and how they will contribute to the achievement of environmental targets established under regulation 12.
(6) Before the programme of measures comes into operation, the competent authority must—
(a)satisfy itself that the measures proposed are cost-effective and technically feasible;
(b)carry out an impact assessment, including a cost-benefit analysis, of any proposed measure; and
(c)consult on any proposed measure in accordance with regulation 18.
(7) The competent authority must consider the implications of the programme of measures on marine waters beyond the marine strategy area in order—
(a)to minimise the risk of damage to those waters; and
(b)if possible, to have a positive impact of those waters.
(8) The competent authority must ensure that the programme of measures is made operational by 31st December 2016 or one year after the publication of the programme of measures, whichever is the earlier.
(9) The competent authority must periodically review the programme of measures required by paragraph (1), by each sixth anniversary after the date of its publication, to ensure that the programme of measures is kept up to date.
(10) The Secretary of State may from time to time request a review of all or part of the programme of measures, where those measures affect or are likely to affect retained functions.
(11) A devolved policy authority may from time to time request a review of all or part of the programme of measures, where those measures affect or are likely to affect devolved functions.
(12) Where a request is made to the Secretary of State or the devolved policy authority under paragraph (10) or (11), the Secretary of State or the authority (as the case may be) must comply with it before the next sixth anniversary of the publication of the programme of measures.
(13) Nothing in paragraph (10) or (11) requires a review in response to a request unless the request is reasonable.
15.—(1) The competent authority may identify cases within the marine waters for which it is the competent authority where, for any of the reasons specified in paragraph 2(a) to (d), the environmental targets or good environmental status cannot be achieved in every aspect through measures taken by the Secretary of State, the devolved policy authority, the public authority or the Northern Ireland body or, for reasons referred to in paragraph 2(e), they cannot be achieved by the time required by these Regulations.
(2) The reasons referred to in paragraph (1) are—
(a)action or inaction for which the United Kingdom is not responsible;
(b)natural causes;
(c)force majeure;
(d)modifications or alterations to the physical characteristics of marine waters brought about by actions taken for reasons of overriding public interest which outweigh the negative impact on the environment, including any transboundary impact; or
(e)natural conditions which do not allow timely improvement in the status of the marine waters concerned.
(3) Where the competent authority has identified a case falling within paragraph (1), the duty under these Regulations to take necessary measures to achieve good environmental status does not apply, subject to the limitations of this regulation.
(4) In respect of a case falling within paragraph (1) by virtue of sub-paragraph (b), (c) or (d) of paragraph (2), the competent authority must take such measures as it considers appropriate which aim—
(a)to make progress towards the environmental targets established under regulation 12 to prevent further deterioration of the status of the affected marine waters; and
(b)to mitigate the adverse impact of such a case at the level of the marine region or subregion or in the marine waters in relation to which other member States have or exercise jurisdictional rights.
(5) Such measures must be integrated into the programme of measures, so far as practicable.
(6) In respect of a case falling within paragraph (1) by virtue of sub-paragraph (d) of paragraph (2), the competent authority must ensure that the modifications and alterations do not permanently preclude or compromise the achievement of good environmental status at the level of the marine region or subregion or in the marine waters in relation to which other member States have or exercise jurisdictional rights.
(7) In identifying any case under paragraph (1), the competent authority must consider the consequences for other member States in the marine region or subregion concerned.
(8) The competent authority must clearly identify such cases in the programme of measures.
(9) The Secretary of State must notify the Commission of the justification for any such cases identified by any competent authority.
(10) The duty under these Regulations, including under regulations 4 and 5, to develop or (as the case may be) implement any element of the marine strategy, other than the assessment of marine waters, does not require the taking of any steps—
(a)in so far as the omission to take steps would pose no significant risk to the marine environment, or
(b)the costs would be disproportionate taking account of the risks to the marine environment,
provided that the omission to take those steps does not result in deterioration of the marine waters concerned.
(11) Where the competent authority relies on either exception under paragraph (10)—
(a)the Secretary of State must provide the Commission with the necessary justification; and
(b)the competent authority must avoid the achievement of good environmental status being permanently compromised.
(12) Nothing in these Regulations affects activities the sole purpose of which is defence or national security, but the Secretary of State must endeavour to ensure that such activities are conducted in a manner that is compatible, so far as reasonable and practicable, with the objectives of the Directive.
16. Nothing in these Regulations requires any action in coastal waters in so far as the objectives of the Directive are achieved by any enactment implementing the Water Framework Directive or any other EU instrument.
17.—(1) The Secretary of State must notify the Commission of—
(a)an assessment under regulation 10 within 3 months of the determination of the characteristics of good environmental status under regulation 11;
(b)the determination of the characteristics of good environmental status under regulation 11 within 3 months of that determination;
(c)the environmental targets and indicators established under regulation 12 within 3 months of the establishment of those targets and indicators;
(d)the monitoring programme established under regulation 13 within 3 months of its establishment;
(e)the programme of measures published under regulation 14 within 3 months of its publication;
(f)any changes made to any element of the marine strategy within 3 months of the publication of any review;
(g)a list of the competent authorities specified for the purposes of these Regulations, together with the information required by Annex 2, by 15th January 2011; and
(h)any change to the information provided under sub-paragraph (g) within 6 months of such a change coming into effect.
(2) The Secretary of State must provide the Commission with a brief interim report describing the progress made in implementing the programme of measures within 3 years of the publication of that programme and within 3 years of any update to that programme.
(3) The Secretary of State must also send any information under paragraph 1(f) to other relevant member States and to the OSPAR Commission(21) within the same time limit.
18.—(1) The competent authority must consult the public to ensure the public is given an early opportunity to participate in the preparation, modification or review of any—
(a)monitoring programmes required by regulation 13; or
(b)programme of measures required by regulation 14.
(2) The Secretary of State must consult the public to ensure the public is given an early opportunity to participate in the preparation, modification or review of any—
(a)assessment required by regulation 10;
(b)determination of good environmental status required by regulation 11; or
(c)environmental targets and indicators required by regulation 12.
(3) The competent authority must—
(a)inform the public as to its proposal, including a summary of the relevant element of the marine strategy mentioned in paragraph (1) or (2), any relevant background information, and the right of the public to participate in the relevant decision-making process;
(b)specify the means by which the public can participate in the consultation, including an address for responses, and a reasonable timescale for the consultation; and
(c)take account of the consultation responses in making any relevant decision.
(4) The competent authority must take such steps as they consider appropriate to secure that the proposals contained in the consultation draft are brought to the attention of the public, including any persons appearing to the relevant authorities to be likely to be interested in, or affected by, the proposed policies.
(5) If the consultation includes proposals relating to retained functions, it may be published only with the agreement of the Secretary of State.
(6) If the consultation includes proposals relating to devolved functions, it may be published only with the agreement of the relevant devolved policy authority.
(7) Where the competent authority takes a decision in relation to its proposal, following a consultation, it must—
(a)inform the public of that decision;
(b)provide information as to the reasons and considerations on which that decision is based; and
(c)provide a statement of the steps taken by the competent authority, or the Secretary of State (as the case may be) to comply with paragraphs (1) to (4), as appropriate.
(8) For the purpose of this regulation, “the public” includes the OSPAR Commission and any other interested organ of an international organisation.
19.—(1) The Secretary of State may give directions to any public authority for the purpose of implementing the Directive.
(2) But the Secretary of State may only give directions in respect of the Scottish inshore region, Scottish offshore region, Welsh inshore region, Welsh offshore region, Northern Ireland inshore region or Northern Ireland offshore region in relation to the exercise by a public authority of a retained function.
(3) The Scottish Ministers may give directions to any public authority in respect of the Scottish inshore region and Scottish offshore region in relation to the exercise by that authority of a secondary devolved Scottish function.
(4) The Welsh Ministers may give directions to any public authority in respect of the Welsh inshore region and Welsh offshore region in relation to the exercise by that authority of a secondary devolved Welsh function.
(5) Where any proposal to give directions under paragraph (1), (3) or (4) includes directions in respect of retained and devolved functions, those directions may be given jointly by the Secretary of State and the relevant devolved policy authority.
(6) The Secretary of State may not give directions in relation to any decision on an application for an order granting development consent under the Planning Act 2008(22).
(7) Any direction given under these Regulations must be in writing and may be varied or revoked by a further direction.
(8) For the purpose of this regulation, a direction—
(a)may be of a general or specific character for the purpose of giving effect to the Directive; and
(b)without prejudice to the generality of sub-paragraph (a), may direct a public authority to exercise or not to exercise—
(i)specified powers;
(ii)its powers in specified circumstances; or
(iii)its powers in a specified manner.
(9) Directions given under this regulation must be publicised in such manner as the body giving the directions considers appropriate for the purpose of bringing the matters to which the directions relate to the attention of persons likely to be affected by them.
(10) A public authority must comply with any direction which is given to it under this regulation.
(11) A Northern Ireland public authority and a Northern Ireland body must, on the request of the Department of the Environment in Northern Ireland, provide that Department with—
(a)any information in its possession or under its control, and
(b)such assistance as may reasonably be sought by that Department,
in connection with the exercise of any functions exercisable by a Northern Ireland public authority or Northern Ireland body which may relate to the implementation of the Directive.
(12) The Department of the Environment in Northern Ireland must consult the relevant Northern Ireland body on proposals to prepare, modify or review any element of the marine strategy which may affect the functions of the relevant Northern Ireland body.
20.—(1) The Secretary of State may give guidance to any person with respect to the practical implementation of the Directive.
(2) The Scottish Ministers may give guidance to any public authority in respect of the Scottish inshore region and Scottish offshore region in relation to the exercise by that public authority of secondary devolved Scottish functions.
(3) The Welsh Ministers may give guidance to any public authority in respect of the Welsh inshore region and Welsh offshore region in relation to the exercise by that authority of secondary devolved Welsh functions.
(4) In respect of the Northern Ireland inshore region and the Northern Ireland offshore region, the Department of the Environment in Northern Ireland may give guidance to—
(a)a Northern Ireland body in relation to the exercise by that body of reserved or transferred functions; or
(b)a Northern Ireland public authority in relation to the exercise by that authority of secondary devolved Northern Ireland functions.
(5) Where any proposal to give guidance under paragraphs (1) to (4) includes guidance in respect of both retained and devolved functions, that guidance must be given jointly by the Secretary of State and the relevant devolved policy authority.
(6) Any person to whom guidance is given under this regulation must have regard to it.
Richard Benyon
Parliamentary Under Secretary of State,
Department for Environment, Food and Rural Affairs
16th June 2010
Regulation 2(1) and (2)
1. In these Regulations, “retained function” means as respects the Scottish inshore region, the Scottish offshore region, the Welsh inshore region, the Welsh offshore region, the Northern Ireland inshore region and the Northern Ireland offshore region, any function of a Minister of the Crown, government department, Northern Ireland department or public authority other than—U.K.
(a)any Scottish Ministerial function;
(b)any Welsh Ministerial function;
(c)any Northern Ireland government function;
(d)any secondary devolved function; or
(e)any relevant ancillary function.
2.—(1) For the purpose of paragraph 1(a) to (c) and paragraph 3—U.K.
(a)“Northern Ireland government function” means—
(i)any function exercisable by a Northern Ireland Minister or a Northern Ireland department, other than any joint function or concurrent function;
(ii)any concurrent function, so far as exercised by a Northern Ireland Minister or a Northern Ireland department;
(iii)the function exercised by a Northern Ireland Minister or a Northern Ireland department when exercising a joint function;
(b)“Scottish Ministerial function” means—
(i)any function exercisable by the Scottish Ministers, other than any joint function or concurrent function;
(ii)any concurrent function, so far as exercised by the Scottish Ministers;
(iii)the function exercised by the Scottish Ministers when exercising a joint function;
(c)“Welsh Ministerial function” means—
(i)any function exercisable by the Welsh Ministers, the First Minister or the Counsel General, other than any joint function or concurrent function;
(ii)any concurrent function, so far as exercised by the Welsh Ministers, the First Minister or the Counsel General;
(iii)the function exercised by the Welsh Ministers, the First Minister or the Counsel General when exercising a joint function;
(d)“concurrent function” means a function exercisable concurrently with a Minister of the Crown or government department;
(e)“joint function” means a function exercisable jointly with a Minister of the Crown or government department.
3. For the purpose of paragraph 1(e), “relevant ancillary function” means any function exercisable by a public authority in relation to any of the following—U.K.
(a)a Scottish Ministerial function,
(b)a Welsh Ministerial function,
(c)a Northern Ireland government function,
(d)a secondary devolved function,
other than any function in relation to which functions are exercisable by a Minister of the Crown or government department.
4. For the purposes of regulation 2(1)(23) and paragraph 3, functions are not to be regarded as exercisable by a Minister of the Crown or government department in relation to any function of a public authority merely because—U.K.
(a)the agreement of a Minister of the Crown or government department is required to the exercise of a function of the public authority;
(b)a Minister of the Crown or government department must be consulted by the public authority, or by the Scottish Ministers, the Welsh Ministers, the First Minister, the Counsel General, a Northern Ireland Minister or a Northern Ireland department, about the exercise of a function of the public authority; or
(c)a Minister of the Crown or government department may exercise functions falling within paragraph 5 in relation to functions of the public authority.
5. The functions mentioned in paragraph 4(c) are—U.K.
(a)functions under section 2(2) of the European Communities Act 1972(24);
(b)functions by virtue of section 57(1) of the Scotland Act 1998(25) (Community obligations) or under section 58 of that Act (international obligations);
(c)functions under section 26 or 27 of the Northern Ireland Act 1998(26) (international obligations and quotas for international obligations);
(d)functions by virtue of section 80(3) of, or paragraph 5 of Schedule 3 to, the Government of Wales Act 2006(27) (Community obligations) or under section 82 of that Act (international obligations etc);
(e)functions under section 152 of that Act (intervention in case of functions relating to water etc).
The definitions contained in the Directive of expressions used in these Regulations, and which have the same meaning as in these Regulations, are as follows—
“criteria” means distinctive technical features that are closely linked to qualitative descriptors;
“environmental status” means the overall state of the environment in marine waters, taking into account the structure, function and processes of the constituent marine ecosystems together with natural physiographic, geographic, biological, geological and climatic factors, as well as physical, acoustic and chemical conditions, including those resulting from human activities inside or outside the area concerned;
“environmental target” means a qualitative or quantitative statement on the desired condition of the different components of, and pressures and impacts on, marine waters in respect of each marine region or subregion. Environmental targets are established in accordance with Article 10;
“good environmental status” means the environmental status of marine waters where these provide ecologically diverse and dynamic oceans and seas which are clean, healthy and productive within their intrinsic conditions, and the use of the marine environment is at a level that is sustainable, thus safeguarding the potential for uses and activities by current and future generations, i.e.:
the structure, functions and processes of the constituent marine ecosystems, together with the associated physiographic, geographic, geological and climatic factors, allow those ecosystems to function fully and to maintain their resilience to human-induced environmental change. Marine species and habitats are protected, human-induced decline of biodiversity is prevented and diverse biological components function in balance;
hydro-morphological, physical and chemical properties of the ecosystems, including those properties which result from human activities in the area concerned, support the ecosystems as described above. Anthropogenic inputs of substances and energy, including noise, into the marine environment do not cause pollution effects;
good environmental status shall be determined at the level of the marine region or subregion as referred to in Article 4, on the basis of the qualitative descriptors in Annex 1. Adaptive management on the basis of the ecosystem approach shall be applied with the aim of attaining good environmental status;
“marine region” means a sea region which is identified under Article 4. Marine regions and their subregions are designated for the purpose of facilitating implementation of this Directive and are determined taking into account hydrological, oceanographic and biogeographic features;
“marine strategy” means the strategy to be developed and implemented in respect of each marine region or subregion concerned as laid down in Article 5;
“pollution” means the direct or indirect introduction into the marine environment, as a result of human activity, of substances or energy, including human-induced marine underwater noise, which results or is likely to result in deleterious effects such as harm to living resources and marine ecosystems, including loss of biodiversity, hazards to human health, the hindering of marine activities, including fishing, tourism and recreation and other legitimate uses of the sea, impairment of the quality for use of sea water and reduction of amenities or, in general, impairment of the sustainable use of marine goods and services;
“regional cooperation” means cooperation and coordination of activities between Member States and, whenever possible, third countries sharing the same marine region or subregion, for the purpose of developing and implementing marine strategies.
The definitions in the Water Framework Directive of expressions defined in regulation 2 as having the same meaning in these Regulations as in that Directive are as follows—
“coastal water” means surface water on the landward side of a line, every point of which is at a distance of one nautical mile on the seaward side from the nearest point of the baseline from which the breadth of territorial waters is measured, extending where appropriate up to the outer limit of transitional waters;
“transitional waters” means bodies of surface water in the vicinity of river mouths which are partly saline in character as a result of their proximity to coastal waters but which are substantially influenced by freshwater flows.
For this purpose—
“groundwater” means all water which is below the surface of the ground in the saturation zone and in direct contact with the ground or subsoil;
“inland water” means all standing or flowing water on the surface of the land, and all groundwater on the landward side of the baseline from which the breadth of territorial waters is measured;
“surface water” means inland waters, except groundwater; transitional waters and coastal waters, except in respect of chemical status for which it shall also include territorial waters.
Regulation 4(2)
The Whaling Industry (Regulation) Act 1934(28)
The Foyle Fisheries Act (Northern Ireland) 1952(29)
The Harbours Act 1964(30)
The Fisheries Act (Northern Ireland) 1966(31)
The Harbours Act (Northern Ireland) 1970(32)
The Prevention of Oil Pollution Act 1971(33)
The Water Resources Act 1991(34)
sections 128 and 129 of the Merchant Shipping Act 1995(35) (prevention of pollution from ships and further provision for prevention of pollution from ships)
The Petroleum Act 1998(36)
The Pollution Prevention and Control Act 1999(37)
The Water Environment and Water Services (Scotland) Act 2003(38)
The Planning Act 2008(39)
The Marine and Coastal Access Act 2009(40)
The Marine (Scotland) Act 2010(41)
The Conservation (Natural Habitats, &c.) Regulations 1994(42)
The Urban Waste Water Treatment (England and Wales) Regulations 1994(43)
The Urban Waste Water Treatment (Scotland) Regulations 1994(44)
The Conservation (Natural Habitats, &c.) Regulations (Northern Ireland) 1995(45)
The Merchant Shipping (Prevention of Oil Pollution) Regulations 1996(46)
The Surface Waters (Shellfish) (Classification) Regulations 1997(47)
The Surface Waters (Shellfish) (Classification) (Scotland) Regulations 1997(48)
The Surface Waters (Shellfish) (Classification) Regulations (Northern Ireland) 1997(49)
The Merchant Shipping (Oil Pollution Preparedness, Response and Co-operation Convention) Regulations 1998(50)
The Water (Northern Ireland) Order 1999(51)
The Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001(52)
The Merchant Shipping and Fishing Vessels (Port Waste Reception Facilities) Regulations 2003(53)
The Water Environment (Water Framework Directive) (England and Wales) Regulations 2003(54)
The Water Environment (Water Framework Directive) (Northumbria River Basin District) Regulations 2003(55)
The Water Environment (Water Framework Directive) Regulations (Northern Ireland) 2003(56)
The Pollution Prevention and Control Regulations (Northern Ireland) 2003(57)
The Water Environment (Water Framework Directive) (Solway Tweed River Basin District) Regulations 2004(58)
The Water and Sewerage Services (Northern Ireland) Order 2006(59)
The Water Supply (Water Quality) Regulations (Northern Ireland) 2007(60)
The Urban Waste Water Treatment Regulations (Northern Ireland) 2007(61)
The Offshore Marine Conservation (Natural Habitats) Regulations 2007(62)
The Bathing Waters (Scotland) Regulations 2008(63)
The Bathing Water Regulations 2008(64)
The Quality of Bathing Water Regulations (Northern Ireland) 2008(65)
The Conservation of Natural Habitats and Species Regulations 2010(66)
(This note is not part of the Regulations)
These Regulations transpose Directive 2008/56/EC of the European Parliament and of the Council of 17th June 2008 establishing a framework for Community action in the field of marine environmental policy(67) (the “Directive”). These Regulations extend to the United Kingdom.
Regulation 3 sets out the area of the sea and the sea bed to which the Regulations apply.
Regulation 4 imposes a general duty on the Secretary of State, Scottish Ministers, the Welsh Ministers and certain government departments in Northern Ireland to exercise their functions to secure compliance with the Directive. This includes a duty to take measures to achieve or maintain the good environmental status of marine waters by 31st December 2020.
Regulation 5 imposes a duty on the Secretary of State to develop a marine strategy.
Regulations 6 to 8 set out how the Secretary of State and the devolved administrations will work together to develop and implement the marine strategy.
Regulation 9 places a duty on public authorities, as well as Ministers, to have regard to the marine strategy in exercising their functions.
Regulations 10 to 14 require the development of the five elements of the marine strategy and set a deadline for doing so. The five elements are: (1) the assessment of marine waters; (2) the determination of the characteristics of good environmental status for those waters; (3) the establishment of environmental targets and indicators; (4) the establishment of a monitoring programme; (5) the publication of a programme of measures.
Regulation 15 sets out the exceptions to the duty to take measures to achieve good environmental status by 2020.
Part 4 sets out requirements for public participation in the development of the different elements of the marine strategy, as well as notification requirements.
Part 5 provides for direction-making powers and the power to give guidance.
A transposition note and an impact assessment of the effect that this instrument will have on the costs of business and the voluntary sector are available from the Marine Environment Policy Division, Department for Environment, Food and Rural Affairs, Nobel House, 17 Smith Square, London, SW1P 3JR. These documents are also annexed to the explanatory memorandum which is available alongside the instrument on the OPSI website.
1972 c. 68. Paragraph 1A of Schedule 2 was inserted by section 28 of the Legislative and Regulatory Reform Act 2006 (c.51).
OJ L No. 164, 25.06.08, p. 19.
OJ L No. 164, 25.06.08, p. 19.
The Foyle, Carlingford and Irish Lights Commission was established by article 1(f) of the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland establishing implementation bodies on the 8th day of March 1999. This Agreement is set out in Schedule 1 to the North/South Co-operation (Implementation Bodies) (Northern Ireland) Order 1999 (S.I. 1999/859).
2004 c. 20. An area was designated under section 84(4) by S.I. 2004/2668.
See also paragraph 4 of Part 1 to Schedule 2.
See also paragraph 4 of Part 1 to Schedule 2.
See also paragraph 4 of Part 1 to Schedule 2.
OJ L No. 327, 22.12.00, p. 1, last amended by OJ L No. 348, 24.12.08, p. 84.
2006 c. 32. Section 158(1) was amended, and section 158(3) was substituted by section 43 of the Marine and Coastal Access Act 2009 (c. 23). The sea adjacent to Wales relevant for the purposes of the definition of “the Welsh zone” in section 158(1) of the Government of Wales Act 2006 was specified by S.I. 2010/760, article 3 and Schedule 1.
1964 c. 29. Section 1(7) was amended by the Oil and Gas (Enterprise) Act 1982 (c. 23), section 37 and Schedule 3, paragraph 1. Areas have been designated under section 1(7) by S.I. 1987/1265, 2000/3062 and 2001/3670.
The Ospar Commission was established under article 10 of the Convention for the Protection of the Marine Environment of the North-east Atlantic (known as the “Ospar Convention”).
See definitions of “secondary devolved Northern Ireland function”, “secondary devolved Scottish function” and “secondary devolved Welsh function”.
1995 c. 21. Section 128 was amended by s.2 of the Merchant Shipping (Pollution) Act 2006 (c.8).
S.I. 1994/2716. Relevant amendments were made by the Land Reform (Scotland) Act 2003 (asp 2), paragraphs 14 to 16 of Schedule 2, and, S.S.I. 2000/323, S.S.I. 2004/475, S.S.I. 2006/270, S.S.I. 2007/80, S.S.I. 2007/349, S.S.I. 2007/485, S.S.I. 2007/517, S.S.I. 2008/17, S.S.I. 2008/425, S.S.I. 2008/427, S.S.I. 2009/222, S.S.I. 2009/343 and S.I. 2010/490.
S.I. 1994/2841, amended by Environment Act 1995, Sch 22, para 233(1), S.I. 2003/1788 and S.I. 2005/2035.
S.I. 1994/2842, amended by S.I. 1996/973 and S.S.I. 2003/273.
S.R. (NI) 1995 No. 380, amended by S.R. (NI) 2003 No. 46, S.R. (NI) 2004 No. 435, S.R. (NI) 2007 No. 345 and S.R. (NI) 2009 No. 8.
S.I. 1996/2154, amended by S.I. 1997/1910, S.I. 1999/1957, S.I. 2000/483, S.I. 2004/303, S.I. 2004/2110, S.I. 2005/1916 and S.I. 2009/1210.
S.I. 1997/1332, amended by S.I. 2009/1266.
S.I. 1997/2470, amended by S.S.I. 2007/427.
S.R. (NI) 1997 No. 489, amended by S.R. (NI) 2009 No 61.
S.I. 1998/1056, amended by S.I. 2001/1639, S.I. 2007/3224 and S.I. 2009/229.
S.I. 1999/662 (NI 16), amended by the Public Authorities (Reform) Act (Northern Ireland) 2009 (c.3), S.I. 2006/1946 (NI 15), S.I. 2006/3336 (NI 21), S.R. (NI) 2006 No 34 and S.R. (NI) 2009 No 254.
S.I. 2001/1754, amended by S.I. 2007/77 and 2007/1842.
S.I. 2003/1809, amended by S.I. 2009/1176.
S.I. 2003/3242, amended by S.I. 2005/2035, S.I. 2007/3538, S.I. 2008/1097 and S.I. 2010/630.
S.R. (NI) 2003 No. 46, amended by S.R. (NI) 2007 No. 245 and S.R. (NI) 2009 No. 403.
S.I. 2004/99, amended by S.I. 2005/2035 and S.I. 2008/1097.
S.I. 2006/3336 (NI 21), amended by the Water and Sewerage Services (Amendment) Act (Northern Ireland) 2010 (c.5), S.I. 2008/948, S.I. 2008/1277 and S.R. (NI) 2010 No. 128.
S.R. (NI) 2007 No. 147, amended by S.R. (NI) 2010 No. 128.
S.I. 2007/1842, amended by S.S.I. 2007/485, S.I. 2009/7, S.I. 2010/490 and S.I. 2010/491.
OJ L No. 164, 25.06.08, p.19.