The Environmental Impact Assessment and Natural Habitats (Extraction of Minerals by Marine Dredging) (Scotland) Regulations 2007

Explanatory Note

(This note is not part of the Regulations)

These Regulations implement, in waters in Scotland and the Scottish zone referred to in the Regulations as “marine waters”:

Council Directive 85/337/EEC (O.J. No. L 175, 05.07.85, p.40) on the assessment of the effects of certain public and private projects on the environment (as amended by Directive 97/11/EC, O.J. No. L 73, 14.03.97, p.5 and by Directive 2003/35/EC, O.J. No. L 156, 25.06.03, p.17) (“Directive 85/337”); and

Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (O.J. No. L 206, 22.07.92, p.7) (“Directive 92/43”)to which there are amendments not relevant to these Regulations,

in so far as they relate to the extraction of minerals by marine dredging.

Subject to exceptions for dredging for national defence purposes and for dredging which is carried out under certain agreements in existence prior to the Regulations coming into force, the Directives are implemented by ensuring that permission is required for marine dredging projects which engage either directive (regulation 5) and that any dredging carried out without permission where it is needed is an offence (regulation 4). Applications for dredging permission must be made to the Scottish Ministers (regulation 9).

Directive 85/337 is implemented by requiring that an environmental statement is provided in relation to an application which relates to a relevant project, i.e. the extraction of minerals by dredging in marine waters which is likely to have significant effects on the environment (regulation 9). That statement must be taken into account in deciding the application (regulation 12). Directive 92/43 is implemented by requiring that an appropriate assessment is carried out of the effects of such dredging, where it is likely, either alone or in combination with other plans or projects, to have a significant effect on a European site (regulation 12(3) and Schedule 3). Such dredging is referred to in the Regulations as a “habitats project”. European sites are sites in the United Kingdom designated under Directive 92/43, and sites designated as special protection areas under Council Directive 79/409/EEC on the conservation of wild birds (O.J. No. L 103, 25.01.79, p.1) which are treated by Directive 92/43 as having been designated under that directive for these purposes. For the purposes of the Regulations sites which have been proposed by the Scottish Ministers, the Secretary of State or Department for the Environment for designation are also included. Where permission is required under regulation 5, it is an offence for persons other than the Crown to extract minerals by dredging in marine waters unless the dredging is carried out in accordance with a permission which has been granted under these Regulations (regulation 4).

The Regulations make provision for certain actions which may be undertaken before any application for permission is made. Regulation 6 enables any person who proposes to carry out dredging to request the Scottish Ministers to determine whether that dredging would constitute a relevant project, and to determine whether it would constitute a habitats project. Regulation 7 enables a person who intends to make an application for permission which requires an environmental statement to request the Scottish Ministers to give an opinion as to the information to be provided in that environmental statement. Regulation 8 requires appropriate consultation bodies, as defined in the Regulations, government departments and the Scottish Ministers to identify and provide information to assist in the preparation of an environmental statement and enables them to charge for it.

Regulation 9 requires that any application for permission include an environmental statement (unless the dredging constitutes or forms part of a project serving national defence purposes and would have an advance effect on those purposes). Any application for permission must be accompanied by a fee of £29,500. Regulation 10 allows the Scottish Ministers to require the applicant to provide further information, if the Scottish Ministers consider the original environmental statement contains insufficient information to enable the environmental effects of the proposed dredging to be fully considered. Under regulation 11 applications must be subject to publicity and consultation. Regulation 12 sets out the considerations, (including the environmental statement and any assessment of the effect on a European site) and procedure which apply to deciding applications. Before deciding an application for permission to carry out dredging, the Scottish Ministers may give certain parties an opportunity of making representations in person or in writing to a person appointed by the Scottish Ministers. Regulation 13 creates offences where false information is provided in relation to obtaining a permission.

Under regulation 14 provision is made for consultation with any other EEA state where dredging is likely to have significant effects on the environment in that EEA state.

Provision is made under the Regulations for the transfer (regulation 15) and the variation on application (regulations 16 to 19) of a permission. A permission may also be revoked or varied otherwise than on an application, or suspended (regulations 20 and 21), where necessary in order to protect the environment. Regulation 22 provides for offences related to the transfer or variation of a permission.

Regulation 24 amends regulation 47 of the Conservation (Natural Habitats & c.) Regulations 1994. It also amends regulation 25 and 27 of the Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007.

Regulation 25 requires the Scottish Ministers to keep a public register of applications for permission, related approvals, decisions, determinations, and opinions and information provided by applicants under the Regulations.

Regulation 26 provides for the penalties which apply to offences under the Regulations. Regulation 27 allows the Scottish Ministers to hold an inquiry before exercising certain functions under the Regulations. Regulation 28 makes provision for the use of electronic communications in complying with the procedures established by the Regulations.

Schedule 1 sets out requirements for what must be included in an environmental statement.

Schedule 2 sets out the criteria which are relevant when the Scottish Ministers determine whether a dredging project is a relevant project.

Schedule 3 imposes requirements which are similar to those in regulations 48 to 53 (general provisions for the protection of European sites) of the Conservation (Natural Habitats, &c.) Regulations 1994. Paragraphs 2 to 4 of Schedule 3 deal with the protection of European sites in three different circumstances–

(a) paragraph 2 deals with the process for carrying out an appropriate assessment of the effect of new dredging projects on existing European sites and specifies that permission may only be granted on the terms set out in sub paragraphs (5) to (9);

(b) paragraph 3 provides for a review of the effect of permissions on sites which become European sites after those permissions are granted; and

(c) paragraph 4 provides for a review of the effect on European sites of dredging agreements which were entered into before the commencement of these Regulations.

For the purposes of paragraphs 3 and 4 of Schedule 3, the definition of European site is extended to include sites in the United Kingdom upon which the European Commission is consulting the United Kingdom as to whether they should be designated.

Where a review of a permission or an agreement is carried out, the Scottish Ministers must affirm, vary or revoke the permission. The procedure to be followed where the Scottish Ministers revoke or vary a permission is set out in paragraph 5, and the effect of the Scottish Ministers' decision whether to proceed with a revocation or variation is set out in paragraph 6.

Where permission is granted or affirmed despite the negative implications for a European site, compensatory measures must be taken to ensure the overall coherence of the European network of such sites.

A regulatory impact assessment has been prepared in relation to these Regulations and can be obtained from the Scottish Government Planning Directorate, Area 2 H, Victoria Quay, Edinburgh, EH6 6QQ.

Transposition notes are available from the same place.