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
• Offshore Marine Conservation (Natural Habitats, &c.) (Amendment) Regulations 2009
• Offshore Marine Conservation (Natural Habitats, &c.) (Amendment) Regulations 2010

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. The 2010 Amendment Regulations make various insertions for new enactments (e.g. new Birds Directive) and also devolve certain powers to Scottish Ministers.

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 “Habitats Regulatory 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 2014/52/EU, amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment.

Directive 2014/52/EU makes provision for improvements to the EIA procedure. Significant changes are also made to Annex 3 and 4 with a new Annex 2a detailing information that needs to be provided when determining whether projects listed in Annex II require an EIA. Member States are required to implement the provision of this Directive no later than 16th May 2017.

• EC Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (as amended by Directive 2014/52/EU)

The EC Directive 2011/92/EU revokes the 85/337/EEC and the 97/11/EC Directives and amends the 2003/35/EC directive.

The 2011/92/EU 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. Under 2012/92/EU, oil and gas developments are listed as Annex 1 projects. The European Commission launched a proposal to amend the EIA Directive (2011/92/EU) on Friday 26th October (see pending legislation).

• 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 (as amended) 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.

The PPD Directive has brought about significant changes to EIA/ES requirements for modifications to existing developments, including production increases, through bringing the threshold for determination of the requirements for an EIA/ES in line with those for new developments.

• Protocol on Strategic Environmental Assessment (Kyiv, 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.

• OSPAR Recommendation 2010/5 on the assessment of environmental impacts on threatened and/or declining species

When assessments of environmental impacts of human activities that may affect the marine environment of the OSPAR maritime area are prepared, Contracting Parties should ensure they take account of the relevant species and habitats on the OSPAR List of threatened and/or declining species and habitats (OSPAR Agreement 2008-6).

• Guidance Notes on the Offshore Petroleum Production and Pipelines (Assessment of Environmental Effects) Regulations 1999 October 2011

These Guidance Notes provide detailed requirements on the PON15 and EIA process under the 1999 Regulations.

October 2011 updates include (amongst others) additional text and consolidation of advice issue to detail the changes DECC has implemented as a result of the Macondo Incident.

• Environmental Approval for Revised Production Consents under PPD (Revised)

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

The guidance has recently been revised to provide more detail on managing the process for assessing the requirement of an EIA/ES with respect to a production increase (see Consent).

• Commission staff working document executive summary of the impact assessment

The Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions have communicattd on the policy framework for climate and energy in the period from 2020 up to 2030 and provided a working document.

• Changes to Town and Country Planning (Development Management Procedure) (England) Order 2010 for onshore oil and gas extraction – Impact Assessment

The UK Government is committed to an effective and efficient planning system and has taken forward a series of measures to simplify and streamline the arrangements for making and determining planning applications (in England only).

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. 

Prior to applying to EDU-LED to request a consent revision or renewal that involves an increase in the production level, the applicant should assess the proposed increase against the EIA thresholds (*).

• 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, an EIA Direction or ES will be required
• If the increase in production does not exceed the base year i.e. the first year of the consent in subsequent years then an EIA Direction or ES will not be required.
• If the increase is for an increase in the base year production then an EIA Direction or ES will be required.
• If the increase in subsequent years exceeds production in the base year, an EIA Direction or ES will be required

The base year for the comparison must be the current consented level of production for the field, i.e. the consented level of production during the calendar year of submission of the request for the consent revision. The comparative level of production can be the proposed level of production during the next calendar year, or the proposed average annual level of production during the duration of the requested consent. The averaging system could negate the requirement for an ES for a short-term increase in production that exceeds the thresholds (e.g. a large increase in the first year after intervention operations, followed by a rapid decline to levels that are lower than the thresholds), and EDU-LED is willing to consider applications for longer term production consents, whenever this is appropriate, if it would simplify the environmental application and approval process.

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). They also provide examples of how to assess the potential EIA requirements for proposed production increases.

An EIA/ES will also be required for 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.

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 PETS application and submit this to DECC. The application 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 permit. If a Direction is wanted then it must be explicitly requested as part of the PETS submission.

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

• Wells and sidetracks - Drilling Operation Application.
• Pipeline – Pipeline Operation Application.
• Production platform – Production Operation Application.

PETS applications must be submitted electronically to DECC via the UK Oil Portal. 

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

Note: Under the new Portal Environmental Tracking System (PETS) (see DECC guidance), the Master Application Template (MAT) can be accompanied by various Subsiduary Application Templates (SATS) required for the following consents in addition to 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;
• Disturbance Assessment of European Protected Species under the Offshore Marine Conservation (Natural Habitats &c) Regulations 2007 as amended by The Offshore Marine Conservation (Natural Habitats, &c.) (Amendment) Regulations 2012 - see also Geological Survey and Seismic;
• Marine survey Notifications or Geological Survey consents, e.g. for VSP Survey or other acoustic surveys; and
• MCAA or a Marine Licenses.

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 an application 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 application, 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 PETS application and PON 16 is too close to the planned commencement date. Therefore, if not clear of the outcome, it is advisable to submit the PETS application and PON16 6+ months before the commencement date in case DECC requires an ES to be prepared.

Where an EIA/ES includes information required for a Habitats Regulatory 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 EIA Direction SAT 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 EIA Direction SAT 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 MAT and EIA Direction SAT, 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 an EIA Direction SAT 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).

As information has become available about the Macondo incident, DECC has been considering its impact on the UK environmental regime.

In line with existing DECC Guidance, EIAs are already required to include a detailed assessment of the potential environmental impact of a hydrocarbon release, broadly based upon the OPEP requirements but including significant additional detail in relation to the mitigation measures in place to prevfent a release and the potential environmental impacts of a release. Operators have been recommended to include this assessment as an annex to the main body of the ES (or a standalone complete chapter), so that it can be maintained and updated as necessary and could form part of the OPEP justificiation document as required by the OPEP Guidance (see Oil Spill Planning).

This EIA Guidance is unchanged, but the scope of the assessment must now be extended to match the revised scope required for OPEPs (see Oil Spill Planning).

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 Habitats Regulatory Assessment to be undertaken.

If this is the case, JNCC will recommend that as competent authority DECC undertakes a screening for a Habitats Regulatory Assessment (SHRA) or a full Habitats Regulatory Assessment (HRA). The ES or EIA Direction SAT should contain adequate information to enable DECC to undertake the assessment. See Habitats Regulatory Assessment page for further information.

Under the Offshore Marine Conservation (Natural Habitats &c.) Regulations 2009 (as amended), a person is guilty of an offence if he:

(a) deliberately captures, injures, or kills any wild animal of a European protected species; or

(b) deliberately disturbs wild animals of any such species.

Disturbance of animals includes in particular any disturbance which is likely to:

(a) impair their ability:

• to survive, to breed or reproduce, or to rear or nurture their young; or
• in the case of animals of a hibernating or migratory species, to hibernate or migrate; or

(b) to affect significantly the local distribution or abundance of the species to which they belong.

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 The protection of marine European Protected Species from injury and disturbance for England, Wales and the UK offshore marine area. This document is currently being updated by the JNCC and a link will be provided once the document is released.

If there is a risk which cannot be removed or sufficiently reduced by the taking of mitigation measures then a 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 alterntive. It is expected that the majority of activities will not require a Wildlife Licence since their potential for disturbance will fall below the threshold of the office in the Regulations. Further information can be found on the European Protected Species (EPS) page.

Revisions to wildlife licenses effective from 1 January 2015 (England only)

Changes to general and class licence updates have been implemented after Natural England's public consultation in 2014. From 1 January 2015, a licensee must make sure that they are operating under the conditions of these updated licences (as detailed here).

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 Government website.

The Public Participation Directive (PPD) (2003/35/EC) 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.

An EIA Direction SAT 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.

DECC has produced draft Industry User Guidance on the new permit tracking process through PETS. This document will be updated regularly by DECC. Queries regarding PETS should be addressed to:

Derek Saward

E-mail: Derek.Saward@decc.gsi.gov.uk

Tel: 01224 254037

This new PON relates to the reporting of non-compliance with consent conditions under the Energy Act 2008.
 
Any non-compliance with the consent conditions relating to the provision of;

• any lights, signals or other aids to navigation;
• stationing of guard ships in the vicinity of the operations; and
• any other measures for the purposes of, or in connection with, controlling the movements of ships in the vicinity of the operations.

These provisions must be reported immediately by completing this form and sending it to DECC and UK Hydrographic Office.

The PON 10 proforma can be downloaded from the UK Government's website.

DECC Response to CTL Consultation

DECC Response to the Consultation Guidance Relating to the Consent to Locate Process Under Part 4A Of The Energy Act 2008.
 
The document produced is DECC's response to the consultation carried out in last year (2012) seeking views on changes to the new consenting process following the transfer of provisions from the Coast Protection Act.

A guidance document can be downloaded from the UK Government's website.

These DECC Guidance Notes give advice to licensees on the development of oil and gas field reservoirs that extend across the median line between the United Kingdom and Norway. They have been developed jointly with the Norwegian Petroleum Directorate and include links to both UK and Norwegian legislation and Guidance. They should not be read in isolation from that legislation.

The Guidance Notes are designed to help companies through the process of seeking Government approval for the development of trans-boundary reservoirs.

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 here.

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.