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.
• The Conservation of Habitats and Species (Amendment) Regulations 2012 amend the 2010 regulations by placing new duties on public bodies to take measures to preserve, maintain and re-establish habitat for wild birds. The 2012 amendment came into force on the 16th August 2012 and apply to England and Wales, and to Scotland and Northern Ireland to a limited degree.
• 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 by The Conservation (Natural Habitats, &c.) Amendment (Scotland) Regulations 2012.

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 licence(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).

Natural England’s Revised Standing Advice for European Protected Species

In October 2013, it was announced by Natural England that Local Planning Authorities (LPAs) and developers will no longer have to wait for 21 days for advice from Natural England on wildlife species covered by European law.

These latest improvements follow a wide-ranging review that Natural England carried out looking at how standing advice can be used more widely to help reduce red-tape for LPAs, which included carrying out pilots with Cornwall County Council and 60 authorities in South East England.

The application process for an EPS licence for offshore activities is via the new PETS system. EPS licenses can be applied for as a standalone application or, alternatively, it can be raised as a Subsidiary Application Template (SAT) tot he relevent Master Application Template (MAT). PETS applications are made on the UK Oil Portal.

In Scotland (for inshore waters and onshore) a licence can only be granted for a specific purpose. Species Licence 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 licences 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 licences 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

Licence(s) should be applied for and permission granted 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 licences 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.

The Offshore Marine Conservation Regulations as amended by The Offshore Marine Conservation (Natural Habitats, &c.) (Amendment) Regulations 2012 introduced offshore controls to protect European Protected Species, as required under Article 12 of the Habitats Directive and these have supplemented and amended controls that were available in territorial waters under Conservation (Natural Habitats) Regulations.

DECC will be the regulator for offshore energy-related activities, apart from in Devolved Authority territorial waters.

There is currently no formal application process - operators are including disturbance assessments for seismic surveys and piling operations in sensitive areas based on JNCC guidance. DECC has held meetings have been held with other regulators and the Statutory Nature Conservation Agency (SNCA) consultees, to try to agree similar application forms and assessment processes. Developments are taking account of requirements of Noise Descriptor under Marine Strategy Framework Directive (MSFD)

The PON14A form has been amended to include elements relating to the Disturbance Licensing and MSFD requirements, and awaiting comments on amendments from SNCAs.

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.

Wildlife Management Legislation Reform

The Law Commission is undertaking consultation to reform outdated wildlife legislation. Much of the older legislation is out of step with modern requirements, and the principal modern Act – the Wildlife and Countryside Act 1981 – has been amended to such a degree that it is difficult for any non-specialists to use.

Consultation ended in November 2012.

Increased protection for endangered marine life of the North-East Atlantic

The OSPAR Commission has agreed measures to protect iconic species in the North-East Atlantic from threats faced by these species from sea users and harmful waste getting into the marine environment. The measures also extend to the protection of several important habitat types.

The press release which came out in December 2013 can be downloaded from the OSPAR Comission website.

Planning the future sustainable use of marine resources

The MMO is consulting on the draft plans and supporting documents for the east inshore and offshore areas for England. The statement of public participation for the east plan areas details how stakeholders i.e. offshore operators, can be involved in the development of these plans.

The policy statement came out in November 2013 and is accessible via the UK Government website.

Report on the Work of the Habitats and Wild Birds Directives – Marine Evidence Group (Update on progress from the Marine Evidence Group on key evidence gaps identified in the Habitats and Wild Birds Directive Review)

The Marine Evidence Group was established in mid-2012 to fulfil measures on improving marine data and evidence set out in the Habitats and Wild Birds Directives Implementation Review. In particular, it was a response to ongoing difficulties in assessing the impacts of marine developments on protected sites and species.

The Group is conducting this by addressing gaps in evidence that can create uncertainties when undertaking Habitats Regulations Assessments which may hamper fast, effective and proportionate decision-making.

This report provides an update on the progress made so far by the Marine Evidence Group in addressing these key evidence gaps identified in the Habitats and Wild Birds Directives Implementation Review and on improving access and use of data.

The report can be accessed on the Defra website.