Environmental Impact Assessment - Offshore

• Offshore Petroleum Production and Pipelines (Assessment of Environmental Effects) Regulations 1999
• Offshore Production and Pipelines (Assessment of Environmental Effects) (Amendment) Regulations 2007

The Regulations implement in the UK for offshore oil and gas operations the requirements of EC Directive 85/337/EEC on The Assessment of the Effects of Certain Public and Private Projects on the Environment as amended by Council Directive 97/11/EC. The 1999 Regulations repeal the Offshore Petroleum Production and Pipelines (Assessment of Environmental Effects) Regulations 1998 except for projects, which are already subject to the 1998 Regulations.

2007 amendments implement the requirements of the Public Participation Directive (see Supporting Legislation and Performance Standards).

• Offshore Marine Conservation (Natural Habitats &c.) Regulations 2007

These Regulations make provision for implementing the Birds Directive and Habitats Directive in relation to marine areas where the United Kingdom has jurisdiction beyond its territorial sea. The Regulations make provision for the selection, registration and notification of sites in the offshore marine area (European Offshore Marine Sites) and for the management of these sites.  Competent authorities are required to ensure that steps are taken to avoid the disturbance of species and deterioration of habitat in respect of the offshore marine sites and that any significant effects are considered before authorisation of certain plans or projects.  Provisions are also in place for issuing of licences for certain activities and for undertaking monitoring and surveillance of offshore marine sites.

These Regulations also make it an offence to deliberately disturb wild animals of a European Protected Species in such a way as to significantly affect a) the ability of any significant group of animals to survive or breed or b) the local distribution or abundance of that species. If appropriate a Wildlife Licence might be required.

• The Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001
• The Offshore Petroleum Activities (Conservation of Habitats) (Amendment) Regulations 2007

Regulation 5 of the 2001 Regulations requires the Secretary of State to consider whether an “appropriate assessment” should be undertaken prior to granting a licence under the Petroleum Act 1998.  The 2007 amendments also extend this requirement to all UK waters.

• Convention on Environmental Assessment in the Transboundary Context (Espoo Convention) 1991

This Convention entered into force in 1997 and requires contracting parties to undertake an EIA where there may be significant transboundary environmental effects.

• EC Directive 85/337/EEC on the Assessment of the Effects of Certain Public and Private Projects on the Environment
• EC Directive 97/11/EC amending the 1985 Directive on the Assessment of the Effects of Certain Public and Private Projects on the Environment.

EC Directive 85/337 lists two classes of project to which the Directive applies: Annex 1 Projects for which environmental assessment (EA) is mandatory; and Annex 2 projects for which EA is discretionary. In the 1985 Directive oil and gas development were Annex 2 projects. The 1997 Amending Directive made oil and gas developments Annex 1 Projects. The 1999 Regulations implement these requirements of the amending Directive.

• Aarhus Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters 1998
• EC Directive 2003/4/EC on Public Access to Information
• Environmental Information Regulations 2004

The Directive on Public Access to Information implements the first part of the Aarhus Convention into EU law and the Environmental Information Regulations 2004 implement this Directive in the UK. The Regulations give a statutory right of access to environmental information held by public authorities and organisations with public authority responsibilities.

• EC Directive 2003/35/EC providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC (Public Participation Directive)

The Public Participation Directive implements the second part of the Aarhus Convention. The Directive requires an increase in the already high level of public participation in the process by which regulators consider environmental implications for offshore activities.

• Protocol on Strategic Environmental Assessment (Kiev, 2003)

• Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (SEA Directive)

The Kiev (SEA) Protocol, once in force, will require its Parties to evaluate the environmental consequences of their official draft plans and programmes. Strategic environmental assessment (SEA) is undertaken much earlier in the decision-making process than project environmental impact assessment (EIA), and it is therefore seen as a key tool for sustainable development. The Protocol also provides for extensive public participation in government decision-making in numerous development sectors.

Requirements for SEA are already in place in the EU and UK through the EU SEA Directive.

• Habitats Directive 92/43/EC

The Habitats Directive aims to "contribute towards ensuring biodiversity through the conservation of natural habitats and of the wild fauna and flora".  The central component of the Habitats Directive is the creation of the Natura 2000 network of Special Areas of Conservation (SACs) (also see Birds Directive below).  Once an SAC is established member states should ensure the protection and restoration of the sites in accordance with Article 6 outlining the minimum conservation measures to be ensured.

• Wild Birds Directive 79/409/EEC

This Directive produces a framework for the conservation and management of human interactions with wild birds in Europe.  The Directive sets out a broad spectrum of objectives for each although the precise legal mechanisms are at the discretion of the Member States. The Wild Birds Directive also sets up a system of conservation designations for Special Protection Areas (SPAs) along the lines of SACs under the Habitats Directive. Together SPAs and SACs form the Natura 2000 network.

• Section 9 of the Wildlife and Countryside Act 1981
• The Conservation (Natural Habitats, etc.) Regulations 1994
• Conservation (Natural Habitats, &c) (Amendment) (England) Regulations 2003
• Conservation (Natural Habitats &c.) (Amendment) Regulations 2007
• The Conservation (Natural Habitats, &c.) Amendment (Scotland) Regulations 2007
• The Conservation (Natural Habitats &c) Amendment (Scotland) Regulations 2008

• Guidance Notes on the Offshore Petroleum Production and Pipelines (Assessment of Environmental Effects) Regulations 1999 (November 2003)
• Revised Guidance Notes on the Offshore Petroleum Production and Pipeliens (Assessment of Environmental Effects) Regulations 1999 (February 2008) - out to consultation

These Guidance Notes provide detailed requirements on the PON15 and EIA process under the 1999 Regulations. The Revised Guidance Notes are awaiting finalisation, but may also be followed in the meantime (see Snippets).

• Environmental Approval for Revised Production Consents under PPD

The amendment of the EIA Regulations has introduced significant changes in relation to the environmental application and approval procedures for requests to revise production consents. These guidelines detail the process under the new requirements.

• Guidance Notes on The Offshore Petroleum Activities (Conservation Of Habitats) Regulations 2001

These guidelines apply to any oil and gas survey or shallow drilling activity and describe the PON14A application process.

Note – these Guidance Notes are awaiting review and update in line with 2007 amendment Regulations.  

• Guidance on the Deliberate Disturbance of Marine European Protected Species (pdf) - Interim Guidance for English and Welsh Territorial Waters and UK Offshore Waters - March 2008 (see Pending Legislation for status)

These Guidelines explain the requirements of the Offshore Marine Conservation (Natural Habitats &c.) Regulations 2007 (see Performance Standards) and where a Wildlife Licence might be required. Note that these guidance notes do not include Scottish Territorial Waters and guidance should be sought from SNH or the Scottish Government on activities in these areas.

EA is mandatory for the following offshore oil and gas projects:

• Any development that is expected to produce more than 500 tonnes of oil per day
• Any development that is expected to produce more than 500,000 cubic metres of gas per day.
• Pipelines greater than 40 km and with an overall diameter of more than 800 mm. Where a pipeline is wholly within a 500 m radius around a well or fixed installation then an ES is not required.

Where an EIA is not automatically mandatory, dispensation must be sought from DECC not to produce an ES. Projects (including drilling, modifications to existing developments, and Extended Well Test of >96 hours) are determined on a case-by-case basis. 

In general, projects in near shore or sensitive areas will be expected to require an ES. 

An ES may also be required for a modification to a project or revision to production consent, unless the modification or revision decreases production, has no change on production levels or increases production only by a small amount. The baseline(s) for measuring any change in production shall be the last consented annual production rate(s), and the new level(s) of production shall be the average requested annual production rate(s). If the average requested annual rate of production represents an increase of greater than 500 tonnes of oil per day or 500,000 cubic metres of gas per day, the application for the revised production consent must be supported by a PON15D (seeking dispensation - see below) or an ES if over the limits. This also applies to the extension of a pipeline by 40 km and a diameter of 800 mm or more regardless of whether or not the pipeline forms part of a development.

Notwithstanding the above guidance, it should be noted that DECC has the discretionary right to request a PON15D or ES for any proposed revision of production consent, irrespective of whether the increase in the level of production will exceed the thresholds mentioned above. However, those powers would only be used under exceptional circumstances.

DECC has provided guidance on applications for environmental approval for revised production consents (see Guidance)

The following sections outline the requirements for the following:

a) Seeking a Direction as to whether an ES is required

b) How to proceed if a Direction is granted for no ES

c) How to proceed if an ES is required

If a preliminary environmental investigation indicates that the project or modification is unlikely to have a significant adverse effect on the environment, and none of the mandatory conditions apply, then the operator may apply for a dispensation from the requirement to undertake the full ES process (i.e. a Direction). The procedure for doing this is to complete a Petroleum Operations Notice 15 (PON15) and submit this to DECC. The PON 15 requires detail about the proposed project and the environmental sensitivities of the area. It may be useful to prepare a preliminary environmental assessment as background to the PON. If a Direction is wanted then it must be explicitly requested as part of the PON 15 submission.

Applications should be made using the following forms (downloadable from the DECC website):

• Wells and sidetracks - PON15B.
• Pipeline – PON15C.
• Production platform – PON15D.

PON15s must be submitted electronically to DECC ia the UK Oil Portal. 

The PON15 must be submitted in conjunction with a PON16 (Application for Consent). A PON16 proforma can be downloaded from the DECC website.

Note: A PON15 is a multi function consent application document and may be used to include information required for the following consents as well as seeking an EIA Direction if so desired:

• Chemical permit under the Offshore Chemicals Regulations 2002;
• Consent to Locate under Section 4 of the Coast Protection Act 1949 - See Navigational Interference;
• Deposits to Sea licence under Part II of the Food and Environmental Protection Act (FEPA) or the Petroleum Act 1998 - see Deposit of Stabilisation and Protection Materials and Pipeline Stabilisation;
• Disturance Assessment of European Protected Species under the Conservation (Natural Habitats &c) Regulations 2007 - see Geological Survey and Seismic; and
• Extended Well Tests under the Petroleum Act 1998 - see Extended Well Test.

The chemical permit application sections and information for other consent applications can be completed and submitted at a later date (at least 28 days before operations), if submitting a PON15 early in order to seek a Direction.

Schedule 1 to the EIA Regulations 1999 details what DECC will take into account in deciding whether a project is likely to have a significant effect on the environment.

The PON15, in which a Direction is sought, should be submitted at least 28 days before the planned project or modification along with the Application for Consent (PON16).

However, if DECC consider the likely effects of the project or modification will have a significant impact on the environment, and do not issue a Direction, they will require an EA to be conducted and an ES to be prepared. The preparation of an ES and the carrying out of the required consultations will take at least 6+ months and may delay the project if the submission date of the PON 15 and PON 16 is too close to the planned commencement date. Therefore, if not clear of the outcome, it is advisable to submit the PON 15 and PON 16 6+ months before the commencement date in case DECC requires an ES to be prepared.

Where an EIA/ES includes information required for an Appropriate Assessment, an additional 4-6 weeks approval time should be allowed to allow for JNCC review.

New projects subject to mandatory environmental impact assessment (EIA) under the Offshore Petroleum Production and Pipelines (Assessment of Environmental Effects) Regulations 1999 will also need permits under the Chemicals Regulations.  DECC is willing to see the ES process used to minimise the need for a separate application to meet the Chemicals Regulations where sufficient detail is available.  The information required for any permit application giving details of the chemicals to be used and discharged can be included in the ES but will need to be presented in an additional chemical permit application.  See Drilling Chemicals, Pipeline Chemicals and Production Chemicals

If DECC is satisfied that the assessment in the PON 15 is valid and that the operation will not cause adverse environmental effects then a Direction may be given dispensing with the requirements for an ES. The Direction will be valid for a stipulated period (up to 2 years).

The operator is required to retain a copy of the Direction issued by the Secretary of State in order that it can be submitted with the Application for Consent (e.g. PON4 or PON16).

If DECC is not satisfied with the assessment in the PON 15 and believes that the operation will cause adverse environmental effects then DECC will require a statutory ES to be completed.

The operator may also volunteer to undertake an ES.

Once DECC has received the PON 15, it will issue a list of environmental authorities that should be consulted during the preparation of the ES. These authorities may have information that should be included in the ES.

Prepare the ES in accordance with the requirements of the Regulations. Schedule 2 to the EIA Regulations 1999 details the required contents of the Environmental Statement.

If a PON15 has not been submitted, DECC should be informed of the planned project and the decision to submit an ES in support of this.

Where an ES is accompanying a Revised Production Consent only, reference should be made to the DECC Guidance. Where a full ES is required under the amended Regulations, the scope of the ES should be restricted to the potential effects of the proposed increase on the production only.

Once the ES is finalised an Application for Consent (PON16) should be completed and then both submitted to DECC. At the same time, the ES must be publicised by placing an advert in the national, and any relevant local newspapers. DECC prefer to be sent 4 copies of the ES (and any additional material called for).

Public Notice

The ES must then be made available to both statutory consultees and the public. DECC will inform the operator who the statutory consultees are, as each consultee should be sent a copy. The public must be informed in the newspaper notification (see Snippets) where they can obtain a copy.

Both the public and statutory consultees have a set period (normally 28 days) in which they can comment to DECC on the ES. DECC must take any comments relating to the ES into account when determining whether to grant consent. It should be noted that DECC is obliged to take account of any comments made after the consultation period up to the date they grant consent (also see Possibility for Overturning Consent).

DECC may either grant consent or request further information. In the event of further information, the whole process of notice and public consultation is repeated.

If consent is granted it may include consent conditions that must be complied with. DECC can refuse consent if it considers the potential environmental effects of the new project to be too adverse.

A Sample Public Notice can be found in the revised DECC EIA Guidance (see Snippets).

At least 3 months before the project approval is required (as time will be needed for the advertisement and consultation process referred to above). If this is not done then there is the potential to hold up the project considerably. Revised DECC EIA Guidance Notes suggest 6 months as a maximum approval period.

Project consent approval (e.g. Field Development Plan, PON4, Consent for Test Production) is dependent on ES approval, where an ES is required.

Note: Amendments to the EIA Regulations under the Public Participation Directive, which came into effect on 25 June 2005 means that if following submission of the ES there is additional information submitted which is deemed to be substantial, the additional information will be required to go to public consultation (i.e. further adverts in the press and an additional 28 day public notification period).

DECC is obliged to take proper account of the obligations stemming from the Birds and Habitats Directives to protect and conserve the marine environment. A number of offshore sites have been designated as draft or possible SACs (see JNCC website).

Where the Secretary of State considers that there may be significant effect on the conservation objectives, they may require an "appropriate assessment" to be undertaken.

If this is the case, JNCC will recommend that as competent authority DECC undertakes a screening for an Appropriate Assessment (SAA) or a full Appropriate Assessment (AA). The ES or PON15 should contain adequate information to enable DECC to undertake the assessment. EU Guidance on Appropriate Assessment (pdf file) can provide guidance on the process, in particular Annex 2.

Under the Offshore Marine Conservation (Natural Habitats &c.) Regulations 2007, a person commits an offence if he:

• Deliberately disturbs a European Protected Species in such a way as to be likely significantly to affect:
  • the ability of any significant group of animals of that species to survive, breed, or rear or nurture their young; or
  • the local distribution or abundance of that species.

Marine European Protected Species (EPS) include all species of cetaceans, all species of marine turtles and sturgeon.

The onus is on the developer carrying out an activity to (i) assess the likelihood of committing a disturbance offence (ii) consider the need for mitigation measures and (iii) decide whether to apply for a Wildlife Licence.

A description of the assessment of the likelihood of committing a disturbance offence must be included in the PON14A application. Guidance on undertaking such an assessment is included in the JNCC's Guidance (see Guidance) .

ES approval and project approval are likely to contain conditions, in particular the expectation that commitments made in terms of environmental impact mitigation and management within the ES will be adhered to.

If the project is likely to have significant transboundary effects these must be addressed in the EIA and reported in the ES. 

When seeking a Direction under the Regulations, the requirement for an EIA will also be determined (amongst other things) by the likelihood and significance of transboundary impacts.

Council Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment

The Directive aims to introduce a strategic environmental assessment before an area is opened for development. Access to resources might be denied on the basis of environmental scenarios, considered before an area is opened for licensing and the actual environmental impact together with the economic and social benefits are known. 

The scope of the Directive applies to projects of the type listed under Annexes I or II of Council Directive 85/337/EEC as amended; or may have a likely effect on a site designated under the Habitats or Birds Directive. Projects listed include extraction of petroleum and natural gas.

An environmental assessment undertaken under this Directive, does not remove any obligation for environmental assessments under the EIA Directive (Council Directive 85/337/EEC). 

The UK implemented the SEA Directive in England and Wales through the Environmental Assessment of Plans and Programmes Regulations 2004. DECC has already started undertaking a series of SEAs for oil and gas activities on the UKCS.

The Environmental Assessment (Scotland) Act 2005 came into force on 20th February 2006. This is the Scottish equivalent legislation. The Act repealed the Assessment of Plans and Programmes (Scotland) Regulations 2004.

SEA is a key component of sustainable development establishing new methods in environmental protection and opportunities for participation in public policy. SEA achieves the following:

• Monitoring significant environmental effects of public sector strategies, plans and programmes;
• Expert views are sought at varying stages from SNH, SEPA, Historic Scotland and the public; and
• A public statement demonstrating how public opinions have been taken into account.

Guidance and an SEA toolkit are available from the Scottish Executive website, Guidance on SEA Directive 2001/42/EC is available on the Communities and Local Government website.

The Public Participation Directive (PPD) requires a number of aspects of public notification and consultation:

• An outline of main alternatives (if any) should be included in permit applications;
• The public should be notified and made aware of any decisions making available relevant consents and permits with the reasons and considerations on which decisions have been based;
• Public notification at the earliest possible time where the information can be provided on the nature of possible decisions; and
• Making available within timeframes the necessary reports, advice issued to the regulator in accordance with legislation when applications were made and information relevant to a decision which only became available after advertisement of an application.

The Offshore Petroleum Production and Pipe-lines (Assessment of Environmental Effects) Regulations 1999 have also been amended in line with PPD:

• Mandatory EIA will be required for the extension of offshore developments where an increase in production exceeds 500 tonnes of oil or 500,000 m3 of gas per day.  It also applies to the extension of a pipeline by 40 km and a diameter of 800 mm or more regardless if the pipeline forms part of a development.
• The Government must publicise information on any offshore oil / gas development in neighbouring states that may have a transboundary impact on the UK offshore environment.

Not directly applicable

Not directly applicable

If the project or modification begins without an Application for Consent (PON 16) and either a Direction or an ES being approved, or it is carried out in breach of conditions set in the consent then a court order can be sought requiring the cessation of the project. If the operating company is found to be at fault, it may be prosecuted and required to remove any equipment installed and return the location to its former state.

A PON 15 (EIA Direction) and ES will remain valid for two years. If an operation does not go ahead within this time then a new application / renewal of ES will be required.

Any project variation that may alter the findings of the EIA undertaken must be notified to DECC. They may request additional environmental information to be supplied. For significant variations, they may request an additional EIA be undertaken and ES submitted as this may qualify as a project modification.

The 2nd Amendment to the Espoo Convention was adopted in 2004. Once in force, it will allow, as appropriate, affected Parties to participate in EIA scoping, require reviews of compliance and enable contracting parties to revise the list of activities covered by the Convention in Appendix I.

The proposed UK Marine and Coastal Access Bill

(replaces UK Marine Bill)

Introduces a new planning system for the marine area and ensures greater protection for the marine environment and biodiversity, and provide greater recreational access to the English coast. Amongst other areas it:

• Establishes a Marine Management Organisation for the waters around England and the UK offshore area;
• Streamlines the law on licensing marine development
• Provide powers to designate marine conservation zones (MCZs) for rare, threatened and representative habitats and species

Defra has included new provisions in Part 4 of the draft Bill, published on 3 April 2008, enabling Ministers to designate and protect a new type of marine protected area, to be called Marine Conservation Zones (MCZ). MCZs will exist alongside European marine sites (SACs and SPAs), to form a marine protected areas network. Existing Marine Nature Reserves at Lundy and Skomer will be converted into MCZs.

MCZs will protect areas covering the habitats and species which exist in our seas. They will be both large enough, and close enough together, to support functioning communities of marine wildlife. They will be used to protect areas that are important to conserve the diversity of rare, threatened and representative habitats and species, such as such as the rare fan shell (Atrina fragilis), the ocean quahog clam (Arctica Icelandica), seagrass (Zostera) and maerl beds.

More information can be found on the DEFRA website.

Consultation on the Scottish Marine Bill closed on the 6 October 2008. The responses to the public consultation are now being considered to inform progress of a Scottish Marine Bill which is expected before the Scottish Parliament in Spring 2009.

• Development of a new marine management organisation, Marine Scotland, to oversee the implementation of the Bill's objectives and to take on the role of sort of one-stop-shop for regulating and permitting certain activities (currently administered by FRS, SNH, SEPA and others) - this change would not necessarily affect oil and gas licensing / permitting directly but would introduce a new player and new processes which might affect things indirectly. 
• Within Marine Scotland would be a set of Scottish Marine Regions who would oversee day to day activities andhave regional marine plans.  The idea here is to introduce local accountability / focus on activities and future development.
• Introduction of Marine Protected Areas (MPA) this would be a power of the proposed new body Marine Scotland.
• Establishment of national marine objectives - which the UK government would like to be based on the UK objectives contained in the recent UK objectives consultation (and included in the appendix of the Scottish document).  These objectives will be worked up after the marine bill consultation period and are eesitmated at 12-18 months to develop.
• Development of a marine science strategy.

The Environmental Liability Directive was adopted in 2004 and was required to be implemented by 30 April 2007.  The Directive enforces strict liability for prevention and remediation of environmental damage to ‘biodiversity’, water and land from specified activities and remediation of environmental damage for all other activities through fault or negligence. 

The Environmental Liability Directive is now implemented in England and Wales (see Environmental Liability). The Scottish Government has completed its 2nd consultation and regulations are pending.

Under the EIA regulations, operators are obliged to advertise Environmental Statements (Public Notice) in a newspaper. To date, DECC has requested that adverts are placed in The Guardian and a relevant local newspaper. However, due to a recent reorganisation in the layout of The Guradian, the adverts are no longer placed in an appropriate section of the paper.

The EIA Regulations require that the notices must be placed in a newspaper and according to legal advice, the Gazettes do not constitute a newspaper, therefore, DECC has decided to request that the notices be placed in The Independent instead of The Guardian.

As from 1 September 2008, public notices under the EIA Regulations should be advertised in The Independent and the relevant named, local newspaper.

Public consultation on the Revised Offshore EIA Guidance Notes by DECC closed on the 7th May 2008 and has now been completed. Queries can be fowarded to emt@berr.gsi.gov.uk

DECC are in the process of finalising the Revised Offshore EIA Guidance, but the draft guidance may be used in the meantime. No sigificant changes are expected, although more detail is provided on certain aspects of the guidance.

DECC undertook a review of the quality of ESs submitted under the Offshore Petroleum Production and Pipelines (Assessment of Environmental Effects) Regulations 1999. The findings of this review can be found at the DECC website.

Don’t forget the EIA legislation does not take away the need to ensure licence conditions are met. 

If it is felt the conditions are no longer required, then DECC is willing to consider rescinding or varying licence conditions as appropriate.