European Protected Species (EPS) Disturbance Licensing

• Offshore Marine Conservation (Natural Habitats, &c.) (Amendment) Regulations 2009
• Offshore Marine Conservation (Natural Habitats, &c.) (Amendment) Regulations 2010
• The Conservation of Species and Habitats Regulations 2010
• The Conservation (Natural Habitats &c.) Regulations 1994 (as amended) (now apply in Scotland only)

These Regulations 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

Supporting Legislation

• Directive 2009/147/EC on the conservation of wild birds (the birds directive) (formerly 79/409/EEC);

• Directive 92/43/EEC on the conservation of natural habitats and wild fauna and flora (the habitats directive);
• Wildlife and Countryside Act 1981 (as amended) provides the main piece of primary legislation making provision for nature conservation in the UK. The original enactment has been subject to a number of amendments since 1981 the most recent of which are listed below under ‘supporting legislation’.
• Countryside and Rights of Way (CRoW) Act (2000) (England and Wales);
• Natural Environment and Rural Communities Act 2006 (England and Wales);
• Nature Conservation (Scotland) Act 2004.
• The Conservation of Habitats and Species Regulations (2010) replaces the Conservation (Natural Habitats & c.) Regulations 1994 and all subsequent amendments as the principal means by which the Habitats Directive is transposed in England and Wales.  These regulations apply in the terrestrial environment and the territorial waters out to 12nm limit.
• Offshore Marine Conservation (Natural Habitats &c.) Regulations 2007 as amended.

JNCC/CCW/NE Guidance on Marine European Protected Species Disturbance Assessment (see Pending Legislation)

Specifically guidance notes for Application for a licence for European Protected Species are downloadable from the Scottish Government

Details relating to the EPS licensing requirements within Scotland can also be found on the SNH website. All cetacean species in Scotland are given protection under the Conservation (Natural Habitats, &c.) Regulations 1994 (as amended).

EPS licensing requirements within England can be found on the Natural England (NE) website. Specifically the Natural England website hosts an interactive spreadsheet detailing Guidance, Best Practice and Information relating to Natural England's regulatory role including species licensing.

If there is a risk which cannot be removed or sufficiently reduced by the taking of mitigation measures then an EPS Disturbance (or Wildlife) Licence may be required to be granted by the regulatory authorities for a number of "purposes". Purposes include "over-riding public interest" and "scientific and educational purposes". Licences can however only be issued where there is no satisfactory alternative.

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 an EPS Licence.

It is expected that the majority of offshore activities will not require an EPS (or Wildlife) Licence since their potential for disturbance will fall below the threshold of the Regulations. This will be ascertained during the appropriate consent application process e.g. for Seismic, Geological Survey or Well Abandonment. Also see Pending Legislation.

A species license(s) allows an individual or organization to carry out an action in relation to a protected species that might otherwise be against the law.

Details relating to the EPS licensing requirements within Scotland (for inshore marine and onshore species) can be found on the SNH website. All cetacean species in Scotland are given protection under the Conservation (Natural Habitats, &c.) Regulations 1994 (as amended).

EPS licensing requirements within England (for marine and onshore species) can be found on the Natural England (NE) website.

The JNCC is in the process of finalising draft guidance on Marine European Protected Species Disturbance (see Pending Legislation).

For offshore activities there is currently no formal application process, and operators are including disturbance assessments in ES and PON14a applications for seismic surveys and piling operations in sensitive areas based on JNCC guidance. The PON14A form has been amended to include elements relating to the Disturbance Licensing and MSFD requirements. Also see Pending Legislation.

In Scotland (for inshore waters and onshore) a license can only be granted for a specific purpose. Species License Applications forms and guidance for Scotland are available for download from the SNH website.

In England and Wales (for inshore waters and onshore) it may be possible to achieve a general licence (dependant on the proposed activity) although these general licenses are only available for activities which carry low risk for the conservation and preservation of the protected species in question.

Type of information required in an application includes (but not exhaustive):

• Details of the species that will be affected by the work and what the details of the planned work. This include details of the mitigation work that is planned to be carried out which will affect European protected species.
• Justification for carrying out the proposed work including explaining why the proposed work is necessary. This is the legal basis of the application.
• Consideration of why there is no satisfactory alternative. This could include the other options that have been evaluated, including alternative sites or methods of carrying out the work.

For offshore oil and gas activities, DECC is the regulatory authorities (see Pending Legislation).

Application for an EPS licence in Scotland is made to the Species Management Team, Scottish Government. Upon the receipt of all relevant information the application is sent to SNH for their consideration.

Scottish Government Licensing Section can be contacted:

Species Management Team, Natural Resources Division, 1-D North, Victoria Quay, Edinburgh, EH6 6QQ, Tel: 0131 244 6549
specieslicensing@scotland.gsi.gov.uk

SNH Licensing Section can be contacted at:

Licensing Section, Scottish Natural Heritage, Great Glen House, Leachin Rd, Inverness, IV3 8NW. Tel No. 01463725000 email: LICENSING@snh.gov.uk

(Please note these details remain outside the control of this site and may be amended or altered without reference to this site)

Natural England is the primary licensing authority for species licenses in England and Wales. NE licensing service can be contacted at:

Wildlife Management and Licensing Service, Natural England, Burghill Road, Westbury-on-Trym, Bristol, BS10 6NJ, Tel: 0845 601 4523 (local rate) or by email at wildlife@naturalengland.org.uk

When to apply

License(s) should be applied for and grant prior to any licensed activity commencing.

The time scale between submission and a decision is given as a guideline of 6-8 weeks.

Lack of response within 30 days from the licensing authority should not be assumed as tacit approval

Disturbance

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

Natural England and SNH monitor activities carried out under the terms of licenses and permits to ensure compliance of licence conditions.

Not directly applicable.

The planning authority is obliged to take proper account of the obligations stemming from the Birds and Habitats Directives to protect and conserve the marine environment.

Natural England (NE) have powers to enforce the obligations set out under the conditions of licence. Enforcement will be applied following Natural England's Enforcement Policy. Complaints or reports of an alleged offence with be investigated. Enforcement powers can range from a simple caution to prosecution under the relevant legislation.

Scottish Natural Heritage cannot instigate proceedings in Scotland. The law is enforced by the police and each force in Scotland has its own Wildlife Crime Officer

Not directly applicable.

JNCC/CCW/NE Guidance on Marine European Protected Species Disturbance Assessment

JNCC has produced draft guidance, but the final draft has still to be approved by Defra lawyers and the guidance has not been adopted by the Scottish Government.

In the meantime, JNCC will provide copies of the draft guidance for information if required.

None at present.