MSCG_19-2016-04
Marine Strategy Framework Directive (MSFD)
Common Implementation Strategy
19th Meeting of the Marine Strategy Coordination Group (MSCG)
10 November 2016 14.00 – 18:00 11 November 2016 09.30 – 12:30
European Commission, Conference Centre Albert Borschette (CCAB), Rue Froissart 36, B-1040 Brussels, Room 4D
Agenda Item: 6b
Document: MSCG_19-2016-04
Title: Final report on MSFD and licencing and permitting
Prepared by: DG Environment
Date prepared: 11/10/2016
Background:
This document is the Final Report of Arcadis on licensing and permitting procedures, and
their link to the MSFD. The Final Report is accompanied by a number of Annexes. Annex I
however has not yet been published on circabc, as it contains the national factsheets
with information on the national licensing frameworks; Member States' approval will be
sought before their publication.
The final report contains a number of recommendations (pages 60-64) proposed by the
consultant on the basis of their findings. The Commission wanted to bring these
recommendations to the attention of the MSCG and is seeking the MSCG's views on the
need to have a follow-up to this study (e.g. whether to transform these
recommendations into a CIS guidance).
The MSCG will be invited to:
- Consider and discuss possible next steps as a follow-up to the report's conclusions.
ANALYSES OF MEMBER S TATES' USE OF THE MSFD IN THE PLANNING AND OPERATION OF HUMAN ACTIVITEIS INCLUDING AUTHORISATION, PERMITTING AND LICENSING PROCEDURES Under Framework contact SFRA0025 Interim Report for Europian Commission DG Environment
JULY 30, 2016
ANALYSES OF MEMBER STATES' USE OF THE MSFD IN THE PLANNING AND OPERATION OF HUMAN A CTIVITIES INCLUDING AUTHORISATION, PERMITTING AND LICENSING PROCEDURES Under Framework contract SFRA0025 Final Report for European Commission DG Environment AUGUST 3, 2016
ANALYSES OF MEMBER STATES' USE OF THE MSFD IN THE PLANNING AND
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Contacts
VERONIQUE ADRIAENSSENS Project Manager Environment - International Development
M +32474298424
Arcadis Belgium nv/sa Koningsstraat 80 Rue Royale 1000 Brussels Belgium
Authors
J. Lammerant (ARCADIS), V. Adriaenssens (ARCADIS), K. Casteleyn (ARCADIS), E. Van Onselen (ARCADIS), M. Ferreira (EUCC), C. Perez (EUCC) A.M. O’Hagan (MaREI, UCC).
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CONTENTS
1 INTRODUCTION 7
1.1 Final report 7
1.2 Project scope and objectives 7
1.3 Roadmap to the Final report 7
2 METHODOLOGY AND RESULTS 9
2.1 Overview of the approach 9
2.2 TASK 1 – Mapping practices and links with the MSFD 9
2.2.1 Objectives 9
2.2.2 Methodology 9
2.2.3 Delineation of human activities in the marine environment to be included 10
2.2.4 Activities in the EU Member States based on MS consulted 16
2.2.5 Mapping of national procedures and regulations 17
2.2.6 Mapping of regional procedures and regulations 25
2.2.7 Link between marine activities and GES descriptors 28
2.2.8 Benefits of instruments for the MSFD descriptors 31
2.2.9 Summary of outcomes 37
2.3 TASK 2 - Linking national procedures with MSFD and other EU legislation 37
2.3.1 Objectives 37
2.3.2 Methodology 38
2.3.2.1 General approach 38
2.3.3 Step 1: Inventory of relevant EU legislation and initiatives, international agreements and conventions related to MSFD 39
2.3.3.1 Methodology 39
2.3.3.2 Conclusions 41
2.3.4 Step 2: Basic mapping of the EU and other legislation identified towards MSFD elements 41
2.3.4.1 Methodology 41
2.3.4.2 Conclusions 42
2.3.4.3 Observations from the perspective of GES descriptors 44
2.3.4.4 A more detailed analysis with regard to specific international legislation 45
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2.3.5 Step 3: Analysis of links and gaps between international instruments and national approaches 47
2.3.5.1 Methodology 47
2.3.5.2 Outcomes 47
2.4 TASK 3 – workshop 49
2.4.1 Objective 49
2.4.2 Approach 49
2.4.3 Outcomes of the workshop 50
2.5 TASK 4 – good practices and recommendations: 50
2.5.1 Good Practices 51
2.5.2 Recommendations 59
2.5.2.1 Strengthening synergies between MSFD and other legislation 59
2.5.2.2 Technical issues 61
2.5.2.3 Procedural issues 63
ANNEXES 65
Annex 1: National factsheets 67
Annex 2: questionnaire model 69
Annex 3: Overview of EU legislation and other international legislation/conventions/etc 71
Annex 4: Links between relevant international legislative frameworks, human activities and the MSFD 73
Annex 5: Workshop background document 75
Annex 6: Workshop minutes 77
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TABLES Table 1: Overview of Member States’ human activities in the marine environment 11
Table 2: Overview of Member States’ human activities in relation to the EIA Directive.(for projects listed in 13
Table 3: Member States’ results indicating the presence of a human activity and associated legislation 19
Table 4: Total number of Member States indicating the presence of a human activity and associated legislation. Y=Yes, N=No, U=unknown. 23
Table 5: Examples of HELCOM and/or OSPAR references in national legislation as included in the MS factsheets as a results of the desktop study, questionnaires and interviews (non-exhaustive list). 26
Table 6: Links (in terms of possible impacts) between marine activities and GES descriptors (red: main possible impacts; orange: potential or minor possible impacts; blank: no significant impacts 30
Table 7 Dependency of marine activities on ecosystem services. NA= Not Applicable, no dependent ecosystem services; D = Directly dependent on; I = Indirectly dependent on. 34
Table 8: List of types of instruments (built upon Annex 6 of the MSFD, types of measures) 36
Table 9: Thematic links between the relevant international regulatory framework and GES descriptors (identified links are marked in orange; links that are particularly important are shown in red) 42
FIGURES Figure 1 Overview of MS responses to the questionnaire 10
Figure 2 Marine activities from the 12 MS consulted, % of the MS that responded positively on the presence of a certain activity; X – axis, activities considered 17
Figure 3: Modified DPSIR framework, showing links to relevant MSFD Articles. CIS=Common Implementation Strategy, RSC=Regional Sea Convention, RFMO=Regional Fisheries Management Organisation; MS-CA=Member State Competent Authority (based on MSCG_11-2013-16). 32
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Glossary
Acronym Full name
CCS Carbon Capture Storage
CIRCABC Communication and Information Resource Centre for Administrations, Businesses and Citizens https://circabc.europa.eu
CIS Common Implementation Strategy
DPSIR Driver Pressure State Impact Response
EIA Environmental Impact Assessment
FTE Full-time equivalent
GES Good Environmental Status
IAS Invasive Alien Species
MS Member State
MSCG Marine Strategy Coordination Group
MSFD Marine Strategy Framework Directive
MSP Maritime Spatial Planning
SEA Strategic Environmental Assessment
WFD Water Framework Directive
WG ESA Working Group on Economic and Social Analysis
WG GES Working Group on Good Environmental Status
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1 INTRODUCTION 1.1 Final report This Final Report has been prepared for the project Analysis of Member States’ use of the Marine Strategy Framework Directive (MSFD) in the planning and operation of human activities, including authorisation, permitting and licensing procedures under Framework Contract: Emerging pressures, human activities and measures in the marine environment (ENV.D.2/FRA/2012/0025), which was awarded to ARCADIS by the European Commission’s Directorate-General for the Environment (DG ENV) following a call for proposals.
The unit responsible for the project follow-up is unit ENV C.2 "Marine Environment and Water Industry" in DG ENV of the European Commission.
1.2 Project scope and objectives The overall objectives of this contract are to understand, map, compare and analyse the use of licensing, authorisations and permitting for human activities in the marine environment at national level in relation to the MSFD and attainment of GES by 2020, with a view to producing a guidance document on the use of licensing, authorisations and permitting for such human activities.
The aim will be to answer the following general questions:
• How do authorisation, licensing and permitting procedures contribute to the attainment of GES by 2020? How are they linked to the MSFD and to other EU legislation?
• What costs are associated with authorisation, licensing and permitting procedures of human activities in the marine environment?
• What good practices in terms of authorisation, licensing and permitting could inform the development of a guidance document?
The final deliverable is a report mapping the different practices in Member States and including recommendations for Member States. The report will be presented to Member States. The report will build on a thorough analysis of Member States' legislation and administrative practices, including legal and economic aspects, as well on relevant EU legislation.
1.3 Roadmap to the Final report In the following section the methodology is presented including the activities undertaken. It explains the outcomes achieved and the conclusions reached, for the different tasks involved. Specifically the tasks were: (1) mapping practices and mapping links with the MSFD; (2) linking national procedures with MSFD legislation; (3) presenting the findings at a workshop and (4) determining good practices and recommendations.
The main outcome of the study that can be used by stakeholders and MS authorities is the background document (already circulated through CIRCABC) and Task 4 “Determination of good practices and recommendations”, as this contains the overall gathered practices and recommendations (following desktop study, questionnaires, interviews and workshop outcomes).
The report includes various Annexes which can be seen as specific outcomes of the report, and used for further elaboration and/or discussion in relation to the role of MSFD in permitting.
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2 METHODOLOGY AND RESULTS 2.1 Overview of the approach The results from the mapping of permitting, authorisations and licensing practices and link with MSFD (Task 1) as well as the links established with other EU legislation and initiatives (Task 2) was disseminated with the MS and relevant stakeholders through a workshop (Task 3) and assisted in the formulation of observations throughout the EU, identification of good practices and/or formulation of additional requirements (Task 4).
Our methodology was organised around four tasks. The methodologies used, the activities, proceedings and outcomes are discussed in detail in the next paragraphs.
Main tasks of the contract
• Task 1: Mapping of permitting, authorisation, licensing practices in Member States and linking these practices to the MSFD, including GES descriptors
• Task 2: Establishing links with other EU legislation and initiatives • Task 3: Organising a workshop • Task 4: Sharing good practices and providing recommendations
2.2 TASK 1 – Mapping practices and links with the M SFD
2.2.1 Objectives Task 1 of the project focused on gathering basic and detailed information about what and how instruments (procedures) are used by the Member States in relation to human activities in the marine environment. A second focus was an in-depth analysis of these national approaches in terms of reaching the objectives of the MSFD.
2.2.2 Methodology Information was gathered through a desktop inventory and a two-step consultation (questionnaire and by phone) with the competent authorities in each of the Member States. Reporting templates were created and standardised for easy review and comparison across all Member States and were completed and validated with the questionnaire responses and the interviews.
All Member States have been consulted through their MSCG contact, and positive responses (by a completed questionnaire) were received for 12 Member States (see Figure 1): Belgium, Croatia, Denmark, Finland, Germany1, Lithuania, Malta, Netherlands, Ireland, Romania, Sweden and the United Kingdom; with the possibility to interview seven Member States (Belgium, Croatia, Denmark, Finland, Lithuania, Malta, Sweden).
1 Germany returned their questionnaire after the workshop, so results are not included in the Background Document of the workshop.
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Figure 1 Overview of MS responses to the questionnaire
Furthermore, while preparing for the workshop and investigating potential speakers on good practice examples (see Task 3), further information was obtained from France and Latvia, as well as Scotland specifically.
The next sections explain what has been achieved in terms of:
• Delineation of human activities in the marine environment, and • Mapping of existing national procedures and in-depth analysis of practices observed.
2.2.3 Delineation of human activities in the marine environment to be included
Objective:
To draft a list of human activities that occur in the marine environment of each coastal Member State. This list will be used as a reference to identify permitting, authorisation, licensing etc. practices in Member States and to link those to the MSFD, including GES descriptors.
Activities:
Screening was done on a typology of marine activities. Those activities that are considered as “marine” or “with significant marine impact”, non-land-based and affected by regulation at the Member State level are included in the list. Following that, based on literature and web-based research and occasional communication, activities occurring in the different Member States were listed in the customised Member State questionnaire. The list of activities as included in the questionnaire was then validated by the Member States (see Section 2.2.4).
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Results:
The list of activities is given in Table 1. As decided in association with the Commission, some human activities were not included for in this study:
• Commercial fisheries: as this is mainly regulated through the EU Common Fisheries Policy • Military activities (excluded from the scope of the MSFD) • Beach tourism: as this is a coastal activity • Coastal fortifications: as this is a coastal activity • Land-based industry activities with potential effect(s) on the marine environment (e.g. direct
discharge of sewerage water, runoff from polluted rivers and/or other inland waters)
Table 1 gives an overview of Member States’ human activities in the marine environment.
Table 1: Overview of Member States’ human activities in the marine environment
Human Activity Definition and/or additional
information
Production of living resources and extraction of living resources
aquaculture (fish, shellfish and macro-algae) set-up and operation + predator control + disease control + stock enhancement methods
seaweed farming set-up and operations
marine biotechnology
* exploration, extraction and exploitation of genetic resources (marine organisms other than fish and shellfish) in order to develop new products * permitting when it comes to using genetic materials from marine resources
Extraction of non-living resources
exploration, exploitation and extraction of oil, gas or other non-renewable energy resources
* including thermal discharge (cooling water) * petrochemical refinery not included
exploration, exploitation and extraction of marine aggregates (sand or gravel)
sea-bed mining
* exploration, exploitation and extraction of minerals (other than sand or gravel) down to about 500 metres depth (includes tin, phosphates, iron ore, ....) * retrieval minerals that take place inside the jurisdictional waters of a sovereign state (not in international seabed - out of scope)
maintenance dredging beneficial use, relocation, placement or processing of dredge materials not included
capital dredging beneficial use, relocation, placement or processing of dredge materials not included
desalination / water abstraction installation/dismantling, pumping & discharge (hot) brine (+ wastewater),
Renewable energy generation
production of energy from renewable sources, wind * construction, operation and decommissioning * in shared sea basins or outside EEZ included
production of energy from renewable sources, tidal * construction, operation and decommissioning * in shared sea basins or outside EEZ included
production of energy from renewable sources, wave * construction, operation and decommissioning * in shared sea basins or outside EEZ included
Transport
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Human Activity Definition and/or additional
information
submarine cable and pipeline routes * construction, operation and decommissioning * in shared sea basins included - interconnectors included
maritime transport, merchant shipping
* vessels that transports cargo or carry passengers for hire such as ferries * cruise ships, pleasure crafts and warships are excluded
Offshore ship building offshore ship building or dismantling
Research and conservation
scientific and research activities animal sanctuaries, marine archaeology, physical sampling, physico-chemical and biological sample removal
geophysical surveys (seismic, sonar)
activities for conservation purposes and ecological restoration infrastructure
* may be for soft or hard structures; * how are areas allocated to this activity in each MS?
Coastal tourism / recreation
Water sports (not mechanically powered) kite and wind surfing, swimming, kayaking,…
small-scale sea-based tourism Whale and dolphin watching, boat tours to seabird nesting sites, excursions to islands, etc…
recreational diving scuba; to underwater cultural heritage; diving clubs special permits needed for group diving ?
cruise tourism / ships Task 2: IMO + PRF
Coastal and marine structure and infrastructure
construction in the marine environment
* may be for soft or hard structures; * e.g. dikes, artificial reeds, artificial sandbanks, artificial embankments * beach enlargements excluded
port's and marina infrastructure
offshore land reclamation * not connected to the coast * specific for / only offshore (e.g. Malta)
dismantling/decommissioning and/or removal of (former) offshore infrastructure or object
Marine pollution and disposal of materials at sea
fly-tipping and unmanaged dumpsites in marine environment
managed dumping at sea (dumping sites included)
deliberate introduction of marine species Regulations on invasive and alien species
disposal of dredged materials from capital or maintenance dredging
disposal of other materials at sea specific local problem(s)
Carbon sequestration
Carbon capture storage (CCS) storage, exploration, construction and operational
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Some of the activities listed in Table 1 are also subject to environmental assessment under the EIA Directive, falling under either Annex I (EIA mandatory) or Annex II (obligation to prepare EIA is at the discretion of the Member States) of that Directive. As such, before they are authorised, many marine activities may be subject to an EIA. The list below links the human activities to the annexes of the EIA Directive.
Table 2: Overview of Member States’ human activities in relation to the EIA Directive.(for projects listed in Annex I an EIA is mandatory. For projects listed in Annex II EIA is at the discretion of the Member States).
Activity EIA Annex I EIA Annex II
Production of living resources and extraction of liv ing resources
1 aquaculture (fish, shellfish and macro-algae)
1. AGRICULTURE, SILVICULTURE AND AQUACULTURE - (f) Intensive fish farming
2 seaweed farming
3 marine biotechnology
Extraction of non-living resources
4 exploration, exploitation and extraction of oil, gas or other non-renewable energy resources
14. Extraction of petroleum and natural gas for commercial purposes where the amount extracted exceeds 500 tonnes/day in the case of petroleum and 500 000 cubic metres/day in the case of gas.
5 exploration, exploitation and extraction of marine aggregates (sand or gravel)
2. EXTRACTIVE INDUSTRY - (c) Extraction of minerals by marine or fluvial dredging;
6 sea-bed mining 2. EXTRACTIVE INDUSTRY - (c) Extraction of minerals by marine or fluvial dredging;
7 maintenance dredging
8 capital dredging
10. INFRASTRUCTURE PROJECTS - (k) Coastal work to combat erosion and maritime works capable of altering the coast through the construction, for example, of dykes, moles, jetties and other sea defence works, excluding the maintenance and reconstruction of such works;
9 desalination / water abstraction
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Activity EIA Annex I EIA Annex II
10 disposal of dredged materials
Renewable energy generation
11 production of energy from renewable sources, wind
3. ENERGY INDUSTRY - (i) Installations for the harnessing of wind power for energy production (wind farms);
12 production of energy from renewable sources, tidal 3. ENERGY INDUSTRY - (a) Industrial installations for the production of electricity;
13 production of energy from renewable sources, wave 3. ENERGY INDUSTRY - (a) Industrial installations for the production of electricity;
Transport
14 submarine cable and pipeline routes
16. Pipelines with a diameter of more than 800 mm and a length of more than 40 km:(a) for the transport of gas, oil, chemicals; (b) for the transport of carbon dioxide (CO2) streams for the purposes of geological storage, including associated booster stations
10. INFRASTRUCTURE PROJECTS - (i) Oil and gas pipeline installations and pipelines for the transport of CO2 streams for the purposes of geological storage (projects not included in Annex I);
15 maritime transport, merchant shipping
Offshore ship building
16 offshore ship building or dismantling 4. PRODUCTION AND PROCESSING OF METALS - (g) Shipyards;
Research and conservation
17 scientific and research activities
18 geophysical surveys (seismic, sonar)
19 activities for conservation purposes and ecological restoration infrastructure
Coastal tourism / recreation
20 Water sports (not mechanically powered)
21 recreational boating Marinas
22 small-scale sea-based tourism Marinas
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Activity EIA Annex I EIA Annex II
23 recreational diving
24 cruise tourism / ships
Construction of roads, harbours and port installations, including fishing harbours (projects not included in Annex I)
Coastal and marine structure and infrastructure
25 construction in the marine environment
10. INFRASTRUCTURE PROJECTS - (k) Coastal work to combat erosion and maritime works capable of altering the coast through the construction, for example, of dykes, moles, jetties and other sea defence works, excluding the maintenance and reconstruction of such works;
26 port's and marina infrastructure
10. INFRASTRUCTURE PROJECTS - (e) Construction of roads, harbours and port installations, including fishing harbours (projects not included in Annex I); // 12. TOURISM AND LEISURE - (b) Marinas;
27 offshore land reclamation
15. Dams and other installations designed for the holding back or permanent storage of water, where a new or additional amount of water held back or stored exceeds 10 million cubic metres
1. AGRICULTURE, SILVICULTURE AND AQUACULTURE - (g) Reclamation of land from the sea
28 dismantling/decommissioning and/or removal of (former) offshore infrastructure or object
Marine pollution and disposal of materials at sea
29 fly-tipping and unmanaged dumpsites in marine environment
30 managed dumping at sea (dumping sites included)
11. OTHER PROJECTS - (b) Installations for the disposal of waste (projects not included in Annex I);
31 deliberate introduction of marine species
32 disposal of dredged materials 11. OTHER PROJECTS - (d) Sludge-deposition sites;
33 disposal of other materials at sea
11. OTHER PROJECTS - (b) Installations for the disposal of waste (projects not included in Annex I);
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Activity EIA Annex I EIA Annex II
Carbon sequestration
34 Carbon capture storage (CCS)
22. Storage sites pursuant to Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009 on the geological storage of carbon dioxide // 23. Installations for the capture of CO2 streams for the purposes of geological storage pursuant to Directive 2009/31/EC from installations covered by this Annex, or where the total yearly capture of CO2 is 1,5 megatonnes or more.
3. ENERGY INDUSTRY - (j) Installations for the capture of CO2 streams for the purposes of geological storage pursuant to Directive 2009/31/EC from installations not covered by Annex I to this Directive. // 13. (b) Projects in Annex I, undertaken exclusively or mainly for the development and testing of new methods or products and not used for more than two years.
2.2.4 Activities in the EU Member States based on M S consulted
Based on information from 12 Member States (through completion of the questionnaire and/or an interview), the following conclusions on marine activities in the EU were collected and are also summarised in Figure 1:
• Prevailing activities in the 12 Member States consulted are: aquaculture, dredging (including disposal), maritime transport and cruises, submarine cables, scientific activities, recreational activities (boating, diving, water sports), construction activities and development of port and marina infrastructure (min 80% of the Member States considered);
• Less frequently occurring activities are sea-bed mining, desalination, ship building and dismantling, carbon capture and storage (less than 20%);
• Activities with a moderate presence across EU marine waters are renewable energy (offshore wind, wave, tidal) and non-renewable exploration (sand, gravel, oil, gas), ecological restoration activities and managed dumping at sea (30 to 70% of the Member States indicated that these activities are ongoing2);
• The range of activities is wide and occur in various Member States across the four marine regions: renewable energy projects are low and absent from the Mediterranean and the Black Seas respectively; wave and tidal energy projects are relevant for the North-East Atlantic and one Baltic Member State(i.e. Sweden) and one Mediterranean Member State(i.e. Italy);
• The most intensively used marine area (in terms of number of activities) appears in the North-East Atlantic (North Sea, Celtic Sea and Irish Sea). This can also be seen from the maps on marine activities produced by Emodnet3.
2 Care is required when discussing managed dumping at sea to be sure that Member States are differentiating correctly. It is common for dredged material disposed at sea to be referred to as ‘dumping at sea’; it is also worth noting that under the terms of the 1996 London Protocol, there are very strict international controls on what can be dumped. 3 www.emodnet.eu
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Figure 2 Marine activities from the 12 MS consulted, % of the MS that responded positively on the presence of a certain activity; X – axis, activities considered (1) aquaculture, (2) seaweed farming, (3) marine biotechnology, (4) Exploration, exploitation and extraction of oil, gas or other
non-renewable energy resources, (5) Sea-bed mining = exploration, exploitation and extraction of minerals) within the
jurisdiction of a sovereign state, (6) Sea-bed mining = exploration, exploitation and extraction of minerals) within the jurisdiction
of a sovereign state, (7) Maintenance dredging (beneficial use, relocation, placement or processing of dredge materials not
included) (8) Capital dredging (beneficial use, relocation, placement or processing of dredge materials not included)(9) Disposal
of dredged materials (10) Desalination / water abstraction(11) Production of energy from renewable sources, wind (12)
Production of energy from renewable sources, tidal (13) Production of energy from renewable sources, wave (14) Submarine
cable and pipeline routes (15) Maritime transport, merchant shipping (16) Offshore ship building or dismantling (17) Scientific
and research activities (18) Geophysical surveys (seismic, sonar) (19) Watersports (20) Recreational boating (21) Sea-based
small-scale recreational fishing (non-commercial) (22) Recreational diving (23) Small-scale sea-based tourism, such as whale
and dolphin watching, boat tours to seabird nesting sites, excursions to islands, etc. (24) Cruise tourism (25) Activities for
conservation purposes and ecological restoration infrastructure (26) Construction in the marine environment (27) Port and
marina infrastructure (28) Offshore land reclamation (29) Dismantling/decommissioning and/or removal of (former) offshore
infrastructure or objects (30) Fly-tipping and unmanaged dumpsites in marine environment (31) Managed dumping at sea (32)
Deliberate introduction of marine species (33) Deliberate introduction of marine species (34) Carbon capture and storage
(CCS) (35) Other human activities in the marine environment, to be specified by the Member States.
2.2.5 Mapping of national procedures and regulatio ns Objective:
To identify the national instruments applicable to each of the relevant human activities in the marine environment of the Member States.
Activities:
• National instruments4: for each of the relevant human activities in the marine environment of the Member State, details of these are available in the factsheets (see Annex 1: National factsheets).
• A template national factsheet was completed by desktop study and has been validated and/or completed from the answers received to the questionnaire (see further)5.
• Interviews with Member State contacts helped to complete the questionnaire in more detail, gave additional information on the objective of each question and validated the answer given. Furthermore, additional discussion provided more insight into the opinion of the Member States contacts on how to reflect MSFD in permitting.
4 Instruments: tools such as permits/authorisations/licences/concessions/contracts that are the final outcome of the development consent and that an applicant must have before starting any human activity in the marine environment 5 Factsheets for the 12 Member States who responded to the questionnaire will be of higher value than those obtained through the desktop study by the consultants
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35
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Results:
In the factsheet, the different columns provide general and detailed information on national instruments and briefly describe conditions6, process phases, competent authority7 and other actors involved.
An overview of the instruments and regulatory procedures of each Member State is given in Table 4 indicating the presence of a certain activity as well as the presence/absence of regulatory instruments for each Member State. Here the analysis focuses on all Member States but further validation is needed for those Member States who have not responded. Table 3 and Table 4 give an overview of the presence of activities and legislation (in relation to environmental regulation; authorisation, licensing) in the Member States following the questionnaire and desktop study.
6 Conditions: temporal, spatial, performance or monitoring related restrictions or obligations an applicant needs to adhere to for the development and/or operation of human activities 7 Competent Authority: Member State authority that is in charge of granting permissions or regulating human activities in the marine environment
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Table 3: Member States’ results indicating the presence of a human activity and associated legislation (N = no, Y = yes, U = unknown, -=not filled in, # = number).
Pre
sen
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No Human
Activity BE BE BG BG CR CR CY CY DE DE DK DK EE EE EL EL ES ES FI FI FR FR IR IR IT IT LI LI LV LV
M
T
M
T NL NL PL PL PO PO RO RO SE SE SI SI UK UK
1 Production of living resources and extraction of li ving resources
1a
aquaculture (fish, shellfish and macro-algae) N Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y N Y N - Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y
1c seaweed farming N Y N - N - N - U N Y Y U Y N - Y Y N - N - Y Y U N N - U N Y Y Y N N - Y Y N - Y Y N - U N
1d marine biotechnology N - N - N - N - Y N Y N Y N N - N - U N N - N - U N N - U N N - Y N N - N Y N - N - N - U N
2 Extraction of non-living resources
2a
exploration, exploitation and extraction of oil, gas or other non-renewable energy resources N N Y Y Y Y Y Y Y Y Y Y N - Y Y Y Y U N Y Y Y Y Y Y N - Y Y Y Y Y Y Y Y N Y Y Y N Y N Y Y Y
2b
exploration, exploitation and extraction of marine aggregates (sand or gravel) Y Y Y Y Y Y N - Y N Y Y Y Y N Y N - Y Y Y Y N - Y Y N Y N N N Y N N Y Y Y Y N Y N N N Y N N
2c sea-bed mining N - N - N - N - N - N - U N N - U N N - N - N - Y Y N Y Y Y N - N - N - N Y N Y U Y N - Y Y
2d maintenance dredging Y Y Y Y Y Y N - Y Y Y Y U N U N Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y N Y Y Y Y Y Y Y
2e capital dredging Y Y Y Y Y Y N - Y Y Y Y U N U N Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y N Y Y Y Y Y Y Y
2f desalination / water abstraction N - N - N - Y Y Y N N - N - Y N Y Y N - N - N - Y N N - N - Y Y N - N - N Y N - Y Y N Y U N
3 Renewable energy generation
3a
production of energy from renewable sources, wind Y Y N - N - N - Y Y Y Y Y Y N - N Y Y Y Y Y Y Y Y Y N - N Y N - Y Y N - N Y N - Y Y N Y Y Y
3b
production of energy from renewable sources, tidal N - N - N - N - N - Y Y U N N - N - N - Y Y N Y U N N - N Y N - Y Y N - N Y N - N - N Y U Y
3c production of energy from Y N N - N - N - N - Y Y U N N - N - N - N Y Y Y Y N N - N Y N - Y Y N - N Y N - Y N N - U Y
ANALYSES OF MEMBER STATES' USE OF THE MSFD IN THE PLANNING AND
OPERATION OF HUMAN ACTIVITEIS INCLUDING AUTHORISATION,
PERMITTING AND LICENSING PROCEDURES
20
Pre
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No Human
Activity BE BE BG BG CR CR CY CY DE DE DK DK EE EE EL EL ES ES FI FI FR FR IR IR IT IT LI LI LV LV
M
T
M
T NL NL PL PL PO PO RO RO SE SE SI SI UK UK
renewable sources, wave
4 Transport
4a
submarine cable and pipeline routes Y Y Y Y Y Y Y N Y Y Y Y Y N Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y U Y N Y Y Y N Y Y Y
4b
maritime transport, merchant shipping Y Y Y Y Y Y Y Y Y Y Y Y Y N Y N Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y U Y Y Y Y Y Y Y Y Y
5 Offshore ship building
5a offshore ship building or dismantling N - N - Y Y Y N U Y U Y Y Y N - N - U Y N - N - U N N - Y N N Y N Y N Y N - U N N - N Y U N
7 Research and conservation
7a
scientific and research activities Y Y Y Y Y N Y Y Y N Y N Y Y Y Y Y Y Y N Y Y Y Y Y N Y Y Y Y Y Y Y N Y Y Y Y N Y Y Y Y Y Y Y
7b
geophysical surveys (seismic, sonar) Y Y Y N Y N Y N Y N Y Y U N Y Y Y N Y N Y Y Y Y Y Y Y N U N Y N Y Y Y Y Y Y Y Y Y Y N - Y Y
7c
conservation activities for conservation purposes and ecological restoration infrastructure U N Y Y Y N Y N Y N Y Y Y Y Y Y Y Y Y Y Y N Y Y Y N N Y U N Y N Y Y Y N U Y Y N Y Y Y Y Y N
8 Coastal tourism / recreation
8a
watersports (not mechanically powered) Y Y Y N Y Y Y Y Y Y Y N Y N Y Y Y Y Y Y Y N Y N Y N Y Y Y N Y Y Y N Y N U Y Y N Y N Y Y N N
8b recreational boating Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y N Y Y Y Y Y Y U Y Y N Y Y Y Y Y Y
8c
sea-based small-scale recreational fishing (non-commercial) Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y U Y Y Y Y Y Y Y Y Y
8d recreational diving Y Y Y N Y Y Y Y Y N Y Y Y Y Y Y Y Y Y N Y N Y Y Y Y Y N Y Y Y Y Y Y Y Y U Y N N Y Y Y N Y Y
8e cruise tourism / ships Y Y Y Y Y Y Y Y Y N Y Y Y Y Y Y Y Y Y N Y Y Y Y Y N Y N Y N Y Y Y N N - U Y N N Y Y Y Y Y N
9 Coastal and marine structure and infrastructure
9a
construction in the marine environment Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y N Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y
ANALYSES OF MEMBER STATES' USE OF THE MSFD IN THE PLANNING AND
OPERATION OF HUMAN ACTIVITEIS INCLUDING AUTHORISATION,
PERMITTING AND LICENSING PROCEDURES
21
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No Human
Activity BE BE BG BG CR CR CY CY DE DE DK DK EE EE EL EL ES ES FI FI FR FR IR IR IT IT LI LI LV LV
M
T
M
T NL NL PL PL PO PO RO RO SE SE SI SI UK UK
9b
ports and marina's infrastructure Y Y Y Y Y Y Y Y Y Y Y Y Y N Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y N Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y
9c
offshore land reclamation (not connected to the coast) Y Y N - N - N - U N N - U N N - N - N - N Y N - U N Y N N - Y Y U N N - N Y N Y N - N Y Y Y
9d
dismantling/decommissioning and/or removal of (former) offshore infrastructure or objects Y Y N - N - N - Y N Y Y U N N - Y N N - N - N - Y N N - U N N - Y N N - Y Y N - N - N - Y Y
11 Marine pollution and disposal of materials at sea
11
a
fly-tipping and unmanaged dumpsites in marine environment N - N - N - N - Y N Y Y Y Y N - N - N Y N - N - Y N N - Y N N - Y Y N - U Y N - N - N - U N
11
b
managed dumping at sea (dumping sites included) Y N N - N - N - U N U N U N N - U N N - Y N Y Y U N N - U N N Y Y N N - U Y N - Y Y N - U N
11c
deliberate introduction of marine species Y Y N - Y Y N - N - N - U N N - N - N - N - Y Y U N N - Y N N - U N N - U Y N - N - N - U N
11
d
disposal of dredged materials N - Y Y Y N N - Y Y Y Y U N Y N Y Y Y Y Y N Y Y Y Y Y Y U N Y Y Y Y Y Y U Y Y Y Y Y Y N Y Y
11
e
disposal of other materials at sea N - N - N - N - U N Y Y U N N - N - N - N - N - U N N - U N Y Y N - N - U Y N - Y N N - Y Y
12 Carbon sequestration
12a
Carbon capture storage (CCS) N - N - N Y N - U N N - U N N - N Y N - N Y N - U Y N - U N N Y Y N N Y N Y N - N - N - Y Y
#Y 20 20 18 15 20 17 16 12 23 14 26 24 17 13 16 14 20 20 18 16 21 19 22 22 24 17 14 15 17 13 21 23 26 19 17 17 10 32 11 15 22 21 14 20 22 22
#N 12 4 15 3 13 4 17 4 4 15 5 4 2 18 15 5 11 4 12 6 12 5 11 1 0 16 19 4 7 17 12 2 5 11 16 2 10 0 21 6 10 4 19 2 2 11
#- 0 9 0 15 0 12 0 17 0 4 0 5 0 2 0 14 0 9 0 11 0 9 0 10 0 0 0 14 0 3 0 8 0 3 0 14 0 1 0 12 0 8 0 11 0 0
#U 1 0 0 0 0 0 0 0 6 0 2 0 14 0 2 0 2 0 3 0 0 0 0 0 9 0 0 0 9 0 0 0 2 0 0 0
1
3 0 1 0 1 0 0 0 9 0
ANALYSES OF MEMBER STATES' USE OF THE MSFD IN THE PLANNING AND
OPERATION OF HUMAN ACTIVITEIS INCLUDING AUTHORISATION,
PERMITTING AND LICENSING PROCEDURES
23
Table 4: Total number of Member States indicating the presence of a human activity and associated legislation. Y=Yes, N=No, -=not filled in; U=unknown.
Total Present Found
legislation
No. Human Activity #Y #N #- #U #Y #N #U #Y #N #-
1 Production of living resources and extraction of living resources
1a aquaculture (fish, shellfish and macro-algae) 42 3 1 0 22 1 0 20 2 1
1c seaweed farming 15 16 10 5 7 8 2 8 8 4
1d marine biotechnology 5 23 14 4 3 12 1 2 11 7
2 Extraction of non-living resources
2a exploration, exploitation and extraction of oil, gas or other non-renewable energy resources 35 8 2 1 17 4 1 18 4 1
2b exploration, exploitation and extraction of marine aggregates (sand or gravel) 26 17 3 0 16 5 0 10 12 1
2c sea-bed mining 10 19 14 3 0 12 2 10 7 5
2d maintenance dredging 39 4 1 2 17 3 2 22 1 0
2e capital dredging 39 4 1 2 17 3 2 22 1 0
2f desalination / water abstraction 13 19 13 1 6 10 0 7 9 6
3 Renewable energy generation
3a production of energy from renewable sources, wind 26 12 8 0 14 5 0 12 7 4
3b production of energy from renewable sources, tidal 11 19 13 3 4 10 1 7 9 5
3c production of energy from renewable sources, wave 13 19 12 2 5 10 1 8 9 5
4 Transport
4a submarine cable and pipeline routes 41 4 0 1 21 2 0 20 2 0
4b maritime transport, merchant shipping 43 2 0 1 21 2 0 22 0 0
5 Offshore ship building
5a offshore ship building or dismantling 13 18 9 6 8 7 3 5 11 4
7 Research and conservation
7a scientific and research activities 39 7 0 0 19 4 0 20 3 0
ANALYSES OF MEMBER STATES' USE OF THE MSFD IN THE PLANNING AND
OPERATION OF HUMAN ACTIVITEIS INCLUDING AUTHORISATION,
PERMITTING AND LICENSING PROCEDURES
24
Total Present Found
legislation
No. Human Activity #Y #N #- #U #Y #N #U #Y #N #-
7b geophysical surveys (seismic, sonar) 32 11 1 2 15 7 1 17 4 1
7c
conservation activities for conservation purposes and ecological restoration infrastructure 31 12 0 3 17 5 1 14 7 0
8 Coastal tourism / recreation
8a Water sports (not mechanically powered) 32 13 0 1 19 4 0 13 9 0
8b recreational boating 43 2 0 1 23 0 0 20 2 0
8c sea-based small-scale recreational fishing (non-commercial) 45 0 0 1 23 0 0 22 0 0
8d recreational diving 37 8 0 1 19 4 0 18 4 0
8e cruise tourism / ships 34 10 1 1 21 2 0 13 8 1
9 Coastal and marine structure and infrastructure
9a construction in the marine environment 45 1 0 0 23 0 0 22 1 0
9b ports and marinas infrastructure 44 2 0 0 22 1 0 22 1 0
9c offshore land reclamation (not connected to the coast) 11 20 11 4 3 11 2 8 9 4
9d dismantling/decommissioning and/or removal of (former) offshore infrastructure or objects 12 19 13 2 6 10 1 6 9 7
11 Marine pollution and disposal of materials at sea
11a fly-tipping and unmanaged dumpsites in marine environment 11 19 14 2 6 10 0 5 9 7
11b managed dumping at sea (dumping sites included) 9 20 9 8 3 11 4 6 9 4
11c deliberate introduction of marine species 8 19 14 5 5 9 1 3 10 6
11d disposal of dredged materials 33 8 2 3 14 6 1 19 2 0
11e disposal of other materials at sea 8 19 14 5 2 11 2 6 8 6
12 Carbon sequestration
12a Carbon capture storage (CCS) 10 21 11 4 3 12 2 7 9 5
ANALYSES OF MEMBER STATES' USE OF THE MSFD IN THE PLANNING AND
OPERATION OF HUMAN ACTIVITEIS INCLUDING AUTHORISATION,
PERMITTING AND LICENSING PROCEDURES
25
The study’s aim is to have an overview of the presence of marine activities in Member States, the permitting procedures applicable to these and the link of these permits, grants and concessions with the MSFD. Based on the results given in Table 3 and Table 4, there is a possibility for future in-depth analysis to those activities and Member States where no permit procedures has been found.
In addition, it could be of interest to Member States as well to derive further information on how a specific activity is dealt with in a neighbouring Member State.
In terms of regional assessment or at the EU scale, it may be relevant to identify coherence issues in a regional sea or between regional seas, which may result in a non-coherent or inconsistent approach to regulation of certain activities.
A detailed analysis of this type, however, is beyond the scope of this study, as the aim here is to define in those cases where there is an instrument (permitting procedure) for a specific marine activity the specific link with the MSFD requirements. This will be highlighted in the following chapters.
2.2.6 Mapping of regional procedures and regulation s Objective:
To identify the regional instruments applicable to each of the relevant human activities in the marine environment of the Member States.
Activities:
Regional Sea Conventions guidance documents and procedures on how to handle permitting, authorisation and licensing in the marine regions were screened for their link with the MSFD and their implementation through national Member State procedures.
Results:
The Regional Sea Conventions and their contracting parties (with a significant number of EU Member States) produce guidelines and strategies aimed at a more coherent approach to marine environmental protection. To support a more coherent approach of regulating marine activities, both HELCOM and OSPAR have produced several guidelines that have been implemented by a number of Member States.
HELCOM and OSPAR
HELCOM is the governing body of the Convention on the Protection of the Marine Environment of the Baltic Sea Area, known as the Helsinki Convention8. The Contracting Parties are expected to individually or jointly take all appropriate legislative, administrative or other relevant measures to prevent and eliminate pollution, in order to promote the ecological restoration of the Baltic Sea Area and the preservation of its ecological balance.
The HELCOM guidelines which refer to human activities as described in this project are:
• Guidelines for monitoring waterborne pollution loads to the Baltic Sea (PLC) • HELCOM Guidelines for Management of Dredged Material at Sea • HELCOM Guidelines for the annual and periodical compilation and reporting of waterborne
pollution inputs to the Baltic Sea (PLC-Water) • HELCOM Reporting Format for Management of Dredged Material at Sea • Regional Action Plan for Marine Litter
8 The Contracting Parties are Denmark, Estonia, the European Union, Finland, Germany, Latvia, Lithuania, Poland, Russia and Sweden. For more information, please refer to http://www.helcom.fi/about-us/convention
ANALYSES OF MEMBER STATES' USE OF THE MSFD IN THE PLANNING AND
OPERATION OF HUMAN ACTIVITEIS INCLUDING AUTHORISATION,
PERMITTING AND LICENSING PROCEDURES
26
In the OSPAR and HELCOM guidelines no obligations are set in regard to national permitting, this is up to the Contracting Parties to either weave the guidelines in the national permitting procedures or handle it in any other forms or means.
The Contracting Parties are obliged to follow the guidelines; however, they are not obliged to assimilate the guidelines directly into their national (MSFD-) legislations. Some of the Member States have done so nonetheless. Examples of HELCOM legislation included in national legislation can be found in Table 5. The OSPAR Convention9 and its strategies’ implementation is taken forward through the adoption of decisions, which are legally binding to the Contracting Parties. Decisions and recommendations set out actions to be taken by the contracting parties.
Many of these decisions, recommendations and agreements can be linked to human activities and the MSFD and can in some form be found in the national legislation of Member States. As with HELCOM, the Contracting Parties are not obliged to assimilate the guidelines into their national (MSFD) legislation, however they are obliged to follow the guidelines. Examples of guidelines which refer to human activities as described in this project are:
• OSPAR Guidelines for the Dumping of Fish Waste from Land-Based Industrial Fish Processing Operations
• Guidelines for the Identification and Selection of Marine Protected Areas in the OSPAR Maritime Area. Revised in 2007
• OSPAR Guidelines for fishermen and other users of the sea and its coastline • OSPAR Guidelines for Monitoring the Environmental Impact of Offshore Oil and Gas Activities • OSPAR Guidelines on Artificial Reefs in relation to Living Marine Resources • OSPAR Guidelines for the Management of Dredged Material at Sea • Guidelines to reduce the impact of offshore installations lighting on birds in the OSPAR maritime
area
In Table 5 examples are given on how the OSPAR and HELCOM guidelines have been implemented in national legislation, and how they link to the human activities relevant for this project. For a more detailed overview per activity in all Member States, please refer to the individual factsheets. Table 5: Examples of HELCOM and/or OSPAR references in national legislation as included in the MS factsheets as a results of the desktop study, questionnaires and interviews (non-exhaustive list).
Member State or Country
Examples of HELCOM and/or OSPAR references in natio nal legislation
Germany
Maintenance / Capital dredging / Disposal of dredge d materials: Dredged material can be relocated in the water (aquatically disposed) if the criteria of the dredged material directives HABAB (inland) and HABAK (coastal) are adhered and if it is in accordance with waste and water regulations.- HABAK - Handlungsweisung für dem Umgang mit Baggergut Küste – is an implementation of OSPAR Guidelines applied in marine environment which describes values for the relocation of sediments. If the conditions for HABAK are met (some of which are environment-related conditions), no permit is required.
Denmark
Disposal of materials at sea: For the disposal of materials at sea, specifically offshore chemicals, the screening before use of the chemicals goes through an extensive process which is adapted to the requirements of OSPAR guidelines on use of offshore chemicals. In this way, the permitting procedures for the use of offshore chemicals is directly connected to the OSPAR guidelines.
9 OSPAR Contracting Parties are Belgium, Denmark, Finland, France, Germany, Iceland, Ireland, Luxembourg, The Netherlands, Norway, Portugal, Spain, Sweden, Switzerland and United Kingdom, together with the European Union. A complete list of OSPAR decisions, recommendations and agreements can be found here: http://www.ospar.org/site/assets/files/1210/list_of_decs_and_recs_2015.docx
ANALYSES OF MEMBER STATES' USE OF THE MSFD IN THE PLANNING AND
OPERATION OF HUMAN ACTIVITEIS INCLUDING AUTHORISATION,
PERMITTING AND LICENSING PROCEDURES
27
Member State or Country
Examples of HELCOM and/or OSPAR references in natio nal legislation
Estonia
Scientific and research activities: Estonian legislation states that HELCOM approval is needed before scientific and research activities can take place10. If the HELCOM demands set in the guidelines relevant to the activities are not met, no permit will be granted.
Finland
Exploration, exploitation and extraction of marine aggregates (sand or gravel): In Finland the HELCOM guidelines for marine sediment extraction have to be followed. If the guidelines cannot be met, no permit for extraction will be granted11.
Lithuania
Maintenance / Capital dredging / Disposal of dredge d materials: Lithuanian national legislation (LAND 46A‐200212) defines the permission procedures for dredging and further disposal of sediments in accordance with the requirements of HELCOM. In this case, the HELCOM requirements have been taken up fully in the national legislation and permits are not granted when the requirements are not met.
Sweden
Scientific and research activities: Swedish legislation provides that HELCOM approval is needed before scientific and research activities can take place13. If the HELCOM demands set in the guidelines relevant to the activity are not met, no permit will be granted.
Sweden
Conservation activities for conservation purposes a nd ecological restoration infrastructure: Sweden has committed to protecting marine areas identified by HELCOM (Baltic Sea Areas) and the OSPAR Convention. Permits for human activities will only be granted when the activities stay in line with the HELCOM or OSPAR guidelines for the particular areas.
10 http://helcom.fi/BALSAM%20publications/Report%20on%20procedures%20for%20granting%20permits%20for%20monitoring%20and%20research%20activities%20in%20the%20Baltic.pdf 11 http://www.helcom.fi/Recommendations/Rec%2019-1.pdf 12 https://www.e-tar.lt/portal/lt/legalAct/TAR.6C2B7B177E08 13 http://helcom.fi/BALSAM%20publications/Report%20on%20procedures%20for%20granting%20permits%20for%20monitoring%20and%20research%20activities%20in%20the%20Baltic.pdf
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2.2.7 Link between marine activities and GES descri ptors Objective: to link the relevant human activities as defined in this study with the descriptors of GES.
Activity: Based on the list of marine activities considered in the analysis and the 11 descriptors, three categories are used to describe the link between the human activity (and related instruments) and the MSFD descriptors:
• Particularly important link (red colour in national factsheet) • Existing link (orange colour) • No link (blank)
MSFD Descriptors:
• Descriptor 1 Biodiversity • Descriptor 2 Non-indigenous species • Descriptor 3 Commercial fish and shellfish • Descriptor 4 Food webs • Descriptor 5 Eutrophication • Descriptor 6 Seafloor integrity • Descriptor 7 Hydrological conditions • Descriptor 8 Concentrations of contaminants • Descriptor 9 Contaminants in fish and seafood • Descriptor 10 Marine litter • Descriptor 11 Energy including underwater noise
Results:
Not all marine activities are equal in terms of their potential environmental impacts or relationship to the GES descriptors, in particular when taking into account the scale of the impacts. GES descriptors apply at a regional scale while many marine activities and accordingly the permits, authorisation and licences covering those activities have a limited scale of application and very local impacts. Some marine activities may have only very local impacts but cumulatively those impacts might be important and also the location of those impacts could be an influencing factor (e.g. nearby more sensitive areas). Table 6 provides an overview of possible links between marine activities and the GES topics covered by the MSFD, indicating where the interactions are potentially more significant or of less significant. It is important to bear in mind the generic and ind icative nature of this table, because the reality will depend very much on the sp atial and temporal intensity of the activity in a given area.
The overview shows that D6 and D7 are amongst the GES descriptors where impacts may arise from a large number of marine activities. However, as a result of excluding fisheries, the major contributor to deterioration in seafloor integrity is also missed. As indicated by the work of ICES for OSPAR14 bottom trawling and the use of dredges affect significant areas of the EU seabed. GES Descriptor D10 on marine litter is only impacted to a small extent by marine activities, being affected much more significantly by land-based pressures. Due to the fact that fisheries were not included in the scope of this project, D3 (commercial fish and shellfish populations) is shown in the analysis as the least affected GES topic in this overview. Conclusions with regard to marine activities with high or low impacts are hard to draw as impacts are always highly case specific.
14 http://www.ices.dk/news-and-events/news-archive/news/Pages/ICES-maps-the-intensity-of-fishing-activities-affecting-the-seabed-.aspx
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A similar overview has recently been prepared by HELCOM15. The matrix visualizes linkages between human activities and pressures affecting the Baltic marine environment. It also gives an overview of human activities on a regional scale that can be utilized in MSP processes. Whereas Table 6 links human activities with potential impacts on the topics covered by the GES descriptors, the HELCOM matrix links these human activities with pressure categories (which each of them can have an impact on the topics covered by the GES descriptors), which is a slightly different approach. Although there are differences in both the categorization of pressures (more detailed in the HELCOM matrix) and the human activities, the outcomes are largely similar.
15 http://helcom.fi/action-areas/maritime-spatial-planning/human-activities-and-pressures
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Table 6: Links (in terms of possible impacts) between marine activities and GES descriptors (red: main possible impacts; orange: potential or minor possible impacts; blank: no significant impacts
Human Activity D1 Biodiversity
D2 Non-indigenous species
D3 Commercially exploited fish and shellfish
D4 Food webs
D5 Eutrophication
D6 Sea-floor integrity
D7 Hydrographical conditions
D8 Contaminants
D9 Contaminants in seafood
D10 Marine litter
D11 Energy (including underwater noise)
Comments I justifications * D1 and D4 are closely linked. For this exercise, we consider D4 only for spawning areas, nursery habitats, sensitive habitat s,... * Turbidity (plumes) to be considered as part of D7, even not permanent * D8: all activities that are ship bound: risk of oil spills. For the purpose of this exercise, risk from accidental oil spills was not considered. * D11: noise for all ship bound activities
1
Production of living resources and extraction of li ving resources
1a aquaculture (fish, shellfish and macro-algae) * D6: especially in case of bottom aquaculture production systems
1c seaweed farming 1d marine biotechnology 2 Extraction of non-living resources 2a
exploration, exploitation and extraction of oil, gas or other non renewable energy resources
* for construction demolition
* exploitation only D1 and D11
* D8 and D10: as offshore rigs often dump chemicals
2b exploration, exploitation and extraction of marine aggregates (sand or gravel)
2c sea-bed mining
2d
maintenance dredging * D4 not included as we can assume that dredging in sensitive areas will not be allowed
* D8: potential release of toxic elements; risk on oil spills
* D9: direct link release of chemicals vs in seafood to small
2e
capital dredging * D4 not included as we can assume that dredging in sensitive areas will not be allowed
* D8: potential release of toxic elements; risk on oil spills
* D9: direct link release of chemicals vs in seafood to small
2f desalination / water abstraction * D11: only during construction dismantling phase. During pumping (exploitation)
rather small
3 Renewable energy generation 3a production of energy from renewable sources, wind 3b production of energy from renewable sources, tidal D11 only constrcution demolition
3c production of energy from renewable sources, wave 4 Transport 4a submarine cable and pipeline routes * Exploitation only D11
* no D7 as no permanent changes
4b maritime transport, merchant shipping 5 Offshore ship building 5a offshore ship building or dismantling 7 Research and conservation 7a scientific and research activities Research may not cause incidental impact (controlled conditions)
7b geophysical surveys (seismic, sonar) * D6 in case sea bottom samples are taken
7c conservation activities for conservation purposes and ecological restoration infrastructure D2: only had structures
D11: construction demolition only
8 Coastal tourism I recreation 8a watersports (not mechanically powered) 8b recreational boating 8c sea-based small-scale recreational fishing (non-commercial) D6 and D11: only in case of small trawl fishery (shrimps, flat fish)
8d recreational diving * D1 and D3: divers may not harm and may not take souvenirs (For this exercise, we
assume that this is so). So not considered
8e cruise tourism / ships 9 Coastal and marine structure and infrastructure
9a construction in the marine environment D2: only in case of hard structures
D11: only construction demolition phase
9b port's and marina's infrastructure D11: only construction demolition phase
9c offshore land claim (not connected to the coast) D2: only in case of hard structures
D11: only construction demolition phase
9d dismantling/decommissioning and/or removal of (former) offshore infrastructure or objects
11 Marine pollution and disposal of materials at sea 11a
fly-tipping and unmanaged dumpsites in marine environment * D4 not considered as we can assume that it will not be allowed in sensitive areas
* D5 only in case of increased concentrations of nutrients
11b managed dumping at sea (dumping sites included) * D2: in case of dumping invasive species
* D5: in case dumped material is enriched with nutrients
11c deliberate introduction of marine species 11d
disposal of dredged materials * D4 not considered as we can assume that it will not be allowed in sensitive areas
* D5 only in case of increased concentrations of nutrients
11e
disposal of other materials at sea * D4 not considered as we can assume that it will not be allowed in sensitive areas
* D5 only in case of increased concentrations of nutrients
12 Carbon sequestration 12a Carbon capture storage (CCS)
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2.2.8 Benefits of instruments for the MSFD descript ors Objective: to analyse the benefits of instruments on the impacted descriptors
Approach:
Both cost-effectiveness and efficiency are widely accepted criteria for assessing regulatory options16. Further on, equity or distributional concerns can be considered and sometimes other outcomes of concern are used as criteria, such as impacts on technological innovation, macroeconomic growth, and employment.
With respect to their contribution to the MSFD objectives, the identified instruments can be analysed as to their effectiveness and overall efficiency .
• Effectiveness: the extent to which the instruments achieve the objectives (environmental targets / GES descriptors) that are relevant to the human activities covered by the instrument.
• Efficiency: the extent to which benefits can be achieved by a given instrument for a given level of resources/at least cost (cost-efficiency). Both the costs for authorisation (applicant fees) as well as for the operation of the human activity (yearly charges, taxes) are taken into account.
In order to build a structured approach, the following steps were taken in order to assess efficiency and effectiveness of the instruments in relation to the MSFD descriptors.
1. Effectiveness assessment 2. Cost assessment 3. Benefit assessment 4. Assessment of efficiency and wider societal benefit and economic impacts
The study cannot use generalisations of effectiveness, costs or benefits as various different approaches to authorising a marine activity exist in the EU. Even if a regulatory procedure is applied in the same way (e.g. through the EIA procedure), implementation and its effect on the impact of the marine activity may vary from country to country. Whilst many activities are covered by EU legislation, their control, costs, effectiveness and efficiency at Member State level through permitting, authorisation and licensing is much more difficult to establish. Furthermore, a scale issue (MSFD assessment scale versus activity-based impact scale) is apparent and does not allow the direct impact of activities and instruments on the relevant GES descriptors to be determined. A way of determining effectiveness and efficiency of the instruments on GES descriptors has been made using the DPSIR (driver, pressure, state, impact, response) approach, and is elaborated below.
Regulatory instruments in the MSFD cycle – DPSIR ap proach
The relationship between human activities, their pressures and the consequent state of the environment is encompassed within the well-established DPSIR (Drivers-Pressure-State-Impact-Response) framework17 for environmental management. In order to understand, modify and learn from the instruments used to control marine activities, one needs to understand how the instrument impacts on the various stages of the DPSIR elements. The MSFD, through its different Articles, also requires Member States to report and analyse various aspects of the DPSIR approach. In order to determine the (gaps in) effectiveness and efficiency and to understand the impact of an instrument on the MSFD descriptor in the end, Member States would need to make full use of their MSFD reporting as can be seen from Figure 3.
16 Measuring Regulatory Performance EVALUATING THE IMPACT OF REGULATION AND REGULATORY POLICY 17 See for example http://www.integrated-assessment.eu/guidebook/dpsir_framework
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Figure 318 shows a DPSIR framework with links to relevant MSFD Articles. The DPSIR framework has been modified by the GES Working Group to address ambiguities in the use of the terms ‘driver’ and ‘impact’ and to accommodate the concept of ecosystem services more explicitly.
Figure 3: Modified DPSIR framework, showing links to relevant MSFD Articles. CIS=Common Implementation Strategy, RSC=Regional Sea Convention, RFMO=Regional Fisheries Management Organisation; MS-CA=Member State Competent Authority (based on MSCG_11-2013-16).
Results:
Effectiveness assessment
The effectiveness assessment determines the extent to which an instrument contributes to the achievement of Good Environmental Status. This could be achieved by analysing how an instrument minimizes the environmental impact ensuring the attainment of Good Environmental Status according to the 11 descriptors, but taking into account the scale issue and by understanding the impact of this instrument on the entire DPSIR cycle.
18 Figure and explanation included in Review of the GES Decision 2010/477/EU and MSFD Annex III – cross-cutting issues (version 5)
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An important instrument to focus on is the EIA process and how effective this is in terms of minimising and controlling the impact on the GES Descriptor. In Task 2 (see Section 2.3), the EIA process and its implementation is discussed.
Further on, as can be seen from the analysis under Task 1, instruments are often a combination of various approaches which consist in terms of authorisation: input and output control, spatial and temporal distribution control, awareness raising, economic incentives. Member States have applied a variety of these approaches (see Annex 1: National factsheets, and Annex 6: Workshop minutes) in their instruments. The combination of these approaches in one instrument also broadly determines the effectiveness of an instrument.
Linkages between pressures, descriptors and the indicators are given in the Annexes to the Commission Working Paper 19 building further on the DPSIR20 approach, and building on the scheme presented in Figure 3. Of relevance in the Commission Working Paper is Annex 3: Linkages between Annex I and Annex III of the Directive through the Decision criteria and indicators. The instruments can be seen as drivers (e.g. governance systems), can either reduce the pressures (e.g. input controls), or the impacts (e.g. output controls), or have an impact on the response of the descriptor (e.g. in the way there is a certain spatio-temporal distribution control of a certain activity). In that way, the effectiveness of each instrument would need to be analysed according to the entire DPSIR approach, and the various methods of implementation of the instrument ultimately determine its impact on the MSFD descriptor.
Considering the notes above, and the various aspects to consider when analysing effectiveness (contribution of an instrument to the MSFD objectives), the contractor has not analysed the effectiveness of each of the instruments listed in Annex 1 (factsheets) but rather discussed in general terms the effectiveness of instruments when considering the good practices as included in Section 2.5.
Cost assessment
Authorisation, licensing and permitting procedures of human activities can have the following cost impacts for both applicants and competent authorities:
• Impact on operating costs of a business e.g. taxes on gravel extraction are passed on downstream to the supply chain.
• Impact on administrative costs, both for the applicant (in spent hours) and for the competent authority (in number of full-time equivalent (FTE)).
• Impact on monitoring costs e.g. operational cost for the competent authority in controlling the activities falling under the authorisation, permitting and licensing procedure.
19 SEC(2011) 1255 final. COMMISSION STAFF WORKING PAPER. Relationship between the initial assessment of marine waters and the criteria for good environmental status 20 Drivers, as per the Driver-Pressure- State-Impact-Response (DPSIR) framework, are aspects of human society which lead to uses of and activities in the (marine) environment, and consequently to pressures upon the natural environment. Drivers include social and economic goals of society as well as policies and governance systems. 'pressures' arise from human activities and can have an adverse effect on the marine environment. One can deduce that 'impacts' (‘effects’) on the environment arise from these pressures and consequently can be measured through changes in its state. The term ‘state’, in the context of the DPSIR framework and MSFD, refers to the quality/condition of specific elements, processes and properties of marine ecosystems. This can be determined through measurements in the environment of relevant parameters for such elements; such measurements, by definition, will reflect any impacts (individual and cumulative) to which the element has been subjected. 'Impact' here is referring to adverse effects on the environment. These are caused by pressures from human activities (i.e. resulting from these pressures) and by implication can be measured as change in environmental state. See http://www.integrated-assessment.eu/guidebook/dpsir_framework and
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The impact of these costs can be assessed based on the financial cost of each scheme (levels of charges and implementation costs) where available. Via desk research and the Member States’ questionnaires, the following unit costs were requested:
• administrative fees linked to granting of the authorisation (e.g. concession fee), • fees, taxes or charges linked to the operation of the activity, • (annual) revenue collected from these concession fees, taxes or charges.
No data were received from the various Member States, except for Belgium who highlighted their cost structure as part of the workshop presentations (see minutes of the workshop (Annex 6: Workshop minutes) and the BE presentation (https://circabc.europa.eu/w/browse/8ff2a0fa-fd6e-4f0d-8abd-2aec3c06a5fb ).
Assessment of the benefits of authorisation, permitting and licensing procedures
The benefits assessment can be determined by one component of the cost of degradation (as reported through the Initial Assessment of the MSFD cycle) which is the opportunity cost. The opportunity cost is the loss of benefits associated with the degradation of ecosystem services.
Benefits, as included in Figure 3, can be split into ecosystem service benefits and wider societal benefits .
Ecosystem service benefits
Four categories exist as ecosystem services:
• Supporting services • Provisioning services • Regulating services • Cultural services
An indication on the dependency of each group of marine activities on ecosystem services is provided in Table 7. It is important to recognise that a large proportion of marine sectors “using the sea as a resource” (e.g. in terms of wind, food, etc.) very much depend on marine ecosystem services, and as a consequence benefit from maintenance and/or restoration of marine ecosystems.
Table 7 Dependency of marine activities on ecosystem services. NA= Not Applicable, no dependent ecosystem services; D = Directly dependent on; I = Indirectly dependent on.
Provisioning services
Regulating services
Habitat or supporting services
Cultural services
Link to GES descriptors
1, 2, 3, 4, 8, 9, 10, 11 2, 4, 5, 6, 7, 8 1, 6, 7 1, 3, 4, 7, 10
Production of living resources and extraction of living resources
D I D NA
Extraction of non-living resources
NA NA NA NA
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Provisioning services
Regulating services
Habitat or supporting services
Cultural services
Renewable Energy generation
NA NA NA NA
Transport NA NA NA NA
Offshore ship building NA NA NA NA
Research and conservation
NA NA NA D
Coastal tourism and recreation
I I I D
Coastal and marine structure and Infrastructure
NA NA NA NA
Marine pollution and disposal of materials at sea
NA NA NA NA
Carbon sequestration NA D NA NA
The benefits instruments may have on the GES descri ptors are dependent on:
• The threshold level: at what threshold (in terms of project characteristics e.g. size, or in terms of characteristics of the environment in which the project might be implemented e.g. sensitivity) is a certain permit procedure invoked; at what threshold level is the EIA procedure applied (for Annex II activities);
• The definition of risk: granting of a permit can vary from Member State to Member State from a ‘no risk’ (precautionary approach) to a ‘risk-based approach’ where step by step implementation is followed carefully through monitoring and mitigation measures
• Surveillance: the intensity of surveillance before, during and after an activity may be different from Member State to Member State;
• Enforcement procedures and liability: control by authorities in terms of implementation of the project and ensuring no environmental degradation occurs can vary
• The way cumulative impacts (various stressors in the environment) are assessed. As will be described later, a planning tool such as MSP, cross-checked with environmental impact through SEA, may have a significant role here;
• The scale of the instruments: some instruments are applied at site (project) level (e.g. EIA) or programme level (e.g. SEA). The impact and the instrument do not necessarily cover the same scale as the GES assessment;
• Furthermore, as is discussed in the “effectiveness” chapter, the success of an instrument is very much dependent on its “procedural” features. An effective application may also have wider ecosystem benefits which need to be assessed as part of the efficiency analysis.
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Table 8: List of types of instruments (built upon Annex 6 of the MSFD, types of measures)
Procedural aspects of instruments for environmental regulation of marine activities
I. Procedural aspects are rather related to measures of the types: A. Management coordination B. Communication, stakeholder involvement and public awareness raising C. Traceability / Monitoring D. Economic incentives (economic interest to act in a ‘GES’ way) II. Conditions of permits/grants/…are rather related to measures of the types E. Input control (amount of a human activity permitted) F. Output control (degree of perturbation allowed) G. Spatial and temporal distribution controls H. Remediation and mitigation tools
How to incorporate an efficiency analysis into the MSFD cycle? The MSFD initial assessment includes the forecast of marine activities, their impact on the marine environment and the way instruments currently prevent or mitigate impact. Preferably, causal relationships between instruments applied at project and programme level and their contribution to GES should be considered. This will be explored further in the recommendations. An understanding of the impact, its scale and the way in which it affects the GES descriptors and their indicators in a spatial and temporal way is crucial when applying an instrument (regulation, authorisation, licensing) to control it. This understanding will then ensure that the most cost-efficient instrument can be developed.
The wider social benefits and economic impacts
The benefits instruments can have on wider society is not part of the scope of this study, and should be elaborated in each of the Member State' initial assessments. The wider economic impacts can be analysed, for example:
• Impact on public participation (involvement of stakeholders in the procedures for granting a permit/authorisation/licence),
• Impact on competitiveness, trade and investment flows, • Impact on macro-economic environment, • Impact on the ‘polluter pays’ principle.
Finally, policy advice could then be formulated for each type of instrument, taking into account:
• the impact of the instrument on the environment and society. What impacts result from the implementation of the instrument in the short and long term?
• the importance of the instrument (to environmental/society). Does it represent a high value? What wider economic effects can be identified from each specific instrument? Are there positive or negative spill overs due to the application of the instrument?
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2.2.9 Summary of outcomes In the previous chapters, the various results are given, and here we list the key deliverables: • Overview of marine activities in the EU, including the activities considered in the analysis. • Regulation of activities at the national scale
• Type of instruments • Links with GES descriptors
• National factsheets • An approach to assessing the benefits of an instrument to the MSFD descriptors.
2.3 TASK 2 - Linking national procedures with MSFD and other EU legislation
2.3.1 Objectives While Task 1 reviews the national instruments (institutional arrangements, stakeholders, process, conditions) related to the identified human activities in the 23 coastal Member States, Task 2 focuses on the existing EU and other international legal frameworks which form, to a large extent, the basis for permits/authorisations/licences.
Under Task 2 the links between national authorisation, permitting and licensing procedures – as analysed under Task 1 – and the MSFD and other relevant EU legislation are analysed, with a double purpose:
• Gap analysis, i.e. identification of gaps within national authorisation, permitting and licensing procedures, which are related to inadequate or insufficient transposition of international legislation and can undermine the achievement of GES
• The identification of good practices and recommendations. Good practices are approaches within national authorisation, permitting and licensing procedures that can support the achievement of GES and might be instructive to other Member States. Recommendations are made on whether Union legal frameworks can be better utilised to influence national instruments with the aim of better incorporating MSFD requirements.
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2.3.2 Methodology 2.3.2.1 General approach
The figure below presents the steps taken in Task 2 as well as links with Task 1.
The following activities took place in Task 2:
• Step 1: Inventory of relevant EU legislation and initiatives, international agreements and conventions related to MSFD;
• Step 2: Basic mapping of the EU and other legislation identified as relating to MSFD descriptors • Step 3: Analysis of links and gaps between international and national approaches • Step 4: Elaboration of good practices and recommendations
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2.3.3 Step 1: Inventory of relevant EU legislation and initiatives, international agreements and conventions related to MSFD
2.3.3.1 Methodology
The first step provides an inventory of relevant EU legislation and initiatives, as well as other international agreements and conventions, which may contribute to achieving GES. Starting from a comprehensive list the relevant laws are selected, based on the following three criteria:
• a thematic link with one or more of the 11 GES descriptors • a link (direct or indirect) with one or more of the key elements of the MSFD which interacts with the
development consent process of selected human activities. Key elements include the initial assessment, the environmental targets for each of the GES descriptors, the monitoring programmes and the programmes of measures.
• the binding nature of the legislation at Member State level; there are differences in the ways international legal frameworks apply at Member State level: • EU Regulations are directly enforceable as law in all Member States • EU Directives need to be transposed in national legislation; • International Conventions need to be ratified, adopted or adhered to by the EU and each party as
described in its own “entry into force” regulation • Associated Protocols to (Regional Seas) Conventions need to be ratified, adopted or adhered to,
by the Contracting Parties to these conventions as described in their own “entry into force” regulations, i.e. the EU and its Member States.
As this study is not a legal compliance study we did not check the extent to which relevant Directives are transposed, or whether Conventions and Protocols are effectively ratified/adopted/in force by the Member States.
In addition to these legal documents we have included one non-binding document prepared by HELCOM, due to its high relevance to this research, i.e. a recommendation on permitting for monitoring and research activities.
A number of legislative frameworks are further detailed in more specific thematic legislation: the ‘sub directives’ of the Water Framework Directive, the annexes of the MARPOL Convention, the Protocols of the Regional Seas Conventions.
The inventory started with a long list, but based on the above selection criteria a number of international legal instruments were excluded. As an example the international legal framework dealing with marine cultural heritage21 is not included in the list, as it is not intrinsically linked with the MSFD.
Annex 3 provides an overview of international EU legislation and initiatives, as well as other international agreements and conventions.
21 Convention on Protection of the World Cultural and Natural Heritage (1972), European Convention on the Protection of Archaeological Heritage (Valetta), UNESCO Convention on Underwater Cultural Heritage
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2.3.3.2 Conclusions
The inventory of relevant EU legislation and initiatives, as well as other international agreements and conventions, that may contribute to achieving GES, identified almost 50 different legislative instruments, subdivided in the following categories:
• 3 instruments dealing with environmental impact assessment • 10 instruments focus mainly on biodiversity • 1 instrument on MSP • 1 instrument on environmental liability • 6 Instruments related to water policy (WFD and its daughter directives) • 4 Instruments on industrial emissions and chemical substances • 15 Instruments on ship source pollution (this includes MARPOL and 6 annexes, which are all counted
separately) • 2 instruments on invasive alien species (IAS) • 2 instruments on (renewable) energy • 1 instrument on seafood • 1 instrument on offshore safety • 5 instruments in the framework of the regional seas Conventions
2.3.4 Step 2: Basic mapping of the EU and other leg islation identified towards MSFD elements
2.3.4.1 Methodology
In this step specific links between relevant international legal frameworks, the planning and permitting of human activities at sea, and the MSFD are defined.
Annex 4 presents the methodology utilised in Step 2, as well as the detailed outcomes.
• The links with the GES descriptors (thematic links) are colour coded (identified links are marked in orange; particularly important links are marked in red) and justified in an additional column.
• The links or potential links between elements of the international legislation and the planning and permitting process of human activities at sea are included in a number of columns ‘Links to planning and permitting’ (one column for each identified link; the red coloured text indicates the strongest links). Examples include: • Preambles or articles that directly or indirectly refer to instruments (permitting, authorisation and
licensing) of marine human activities (including pre- or post-monitoring requirements) • Preambles or articles that directly or indirectly refer to the MSFD or key elements of the MSFD
(only relevant for legislation that entered into force after the MSFD). • For each identified link with the planning and permitting of marine human activities, a codification is
added clarifying the type(s) of applicable measures (Annex VI of MSFD). A distinction is made between the four ‘process related’ types (management/coordination, communication/public awareness, monitoring, economic incentives; codification A, B, C, D) and the four ‘conditionality related’ types (input control, output control, spatial/temporal distribution control, mitigation/remediation tools; codification: E, F, G, H).
• The potential links with the MSFD key elements (i.e. the initial assessment, the environmental targets, the monitoring programme and the programme of measures) which interact with the development consent process are described in a separate row ‘Recommendations for linking to MSFD’. These links are identified by screening the contents of the legislation, in particular those parts that refer to the planning, permitting, or monitoring phase. For each of the identified links to ‘planning and permitting’ (specific columns as described above) an attempt to formulate recommendations on how Member States could strengthen the implementation of the MSFD by optimizing synergies with existing international legislation is conducted. This will feed into step 3 and step 4.
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2.3.4.2 Conclusions
Table 9 provides a more concise overview of these relevant international regulatory instruments and the thematic links to the GES descriptors. Thematic links are indicated in orange, but if the instrument has a central focus on some GES descriptors they are indicated in red (as an example, the implementation of the Habitats Directive clearly has a key impact on D1 but it also affects a range of other GES descriptors, albeit in an indirect way). In some cases, question marks are included. D3 and D9 might not always be covered by SEA and/or EIA as these are typically issues with direct socio-economic importance, while SEA and EIA focus on the environmental impacts. However, seafood contamination is important for human health (Annex II of SEA Directive; Art 3 of EIA Directive) while commercial fish is both part of biodiversity (and a good source of data), but also provides an 'ecosystem service' (marine food). D10 is only indirectly covered by the WFD through improvements to sewage treatment.
Table 9: Thematic links between the relevant international regulatory framework and GES descriptors (identified links are marked in orange; links that are particularly important are shown in red)
EU or international legislation Link to MSFD descriptors
D1
Bio
dive
rsity
m
aint
aine
d
D2
Non
-indi
geno
us
Spe
cies
D3
Com
mer
cial
fish
D4
Foo
d w
ebs
D5
Eut
roph
icat
ion
D6
Sea
floo
r
inte
grity
D7
Hyd
rogr
aphi
cal
co
nditi
ons
D8
Con
cent
ratio
ns
of c
onta
min
ants
D9
Con
tam
inan
ts in
se
afoo
d
D10
Mar
ine
litte
r
D11
Intr
oduc
tion
of
ener
gy
SEA Directive ? ?
EIA Directive ? ?
UNECE Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention)
? ?
Habitats Directive
Birds Directive
Convention on Biological Diversity 1992
Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks 1995
Convention for the Conservation of Salmon in the North Atlantic Ocean 1982
ACCOBAMS under the Convention on Migratory Species (Bonn Convention)
ASCOBANS under the Convention on Migratory Species (Bonn Convention)
Agreement on Wadden Sea Seals under the Convention on Migratory Species (Bonn Convention)
Maritime Spatial Planning Directive
Environmental Liability Directive
Water Framework Directive (WFD) ?
Directive on Environmental Quality Standards ('the Priority Substances Directive')
Directive concerning the management of bathing water quality
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EU or international legislation Link to MSFD descriptors
D1
Bio
dive
rsity
m
aint
aine
d
D2
Non
-indi
geno
us
Spe
cies
D3
Com
mer
cial
fish
D4
Foo
d w
ebs
D5
Eut
roph
icat
ion
D6
Sea
floo
r
inte
grity
D7
Hyd
rogr
aphi
cal
co
nditi
ons
D8
Con
cent
ratio
ns
of c
onta
min
ants
D9
Con
tam
inan
ts in
se
afoo
d
D10
Mar
ine
litte
r
D11
Intr
oduc
tion
of
ener
gy
Urban Waste Water Treatment Directive
Nitrates Directive
National Emission Ceilings Directive
Directive on industrial emissions
Directive on port reception facilities for ship- generated waste and cargo residues
International Convention for the Prevention of Pollution from Ships (MARPOL)
Annex I: Prevention of pollution by oil (entered into force 2 October 1983)
Annex II: Control of pollution by noxious liquid substances (entered into force on 6 April 1987)
Annex III: Prevention of pollution by harmful substances in packaged form (entered into force on 1 July 1992)
Annex IV: Prevention of pollution by sewage from ships (entered into force on 27 September 2003)
Annex V: Prevention of pollution by garbage from ships (entered into force 31 December 1988)
Annex VI: Prevention of Air Pollution from Ships (entered into force on 19 May 2005)
Convention for the Prevention of Marine Pollutionby dumping of wastes and other matter - London Convention and Protocol
International Maritime Organization's Guidelines for the Control and Management of Ships' Biofouling
International Convention for the Control and Management of Ships Ballast Water and Sediments (BWM)
Invasive Alien Species Regulation
Regulation concerning use of alien and locally absent species in aquaculture
Renewable Energy Directive
Offshore Safety Directive
Port State Control Directive
The Convention for the Protection of the marine environment of the North-East Atlantic (OSPAR)
The Barcelona Convention
The Helsinki Convention (HELCOM)
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EU or international legislation Link to MSFD descriptors
D1
Bio
dive
rsity
m
aint
aine
d
D2
Non
-indi
geno
us
Spe
cies
D3
Com
mer
cial
fish
D4
Foo
d w
ebs
D5
Eut
roph
icat
ion
D6
Sea
floo
r
inte
grity
D7
Hyd
rogr
aphi
cal
co
nditi
ons
D8
Con
cent
ratio
ns
of c
onta
min
ants
D9
Con
tam
inan
ts in
se
afoo
d
D10
Mar
ine
litte
r
D11
Intr
oduc
tion
of
ener
gy
HELCOM Recommendation on permits for monitoring and research activities
The Black Sea Convention
2.3.4.3 Observations from the perspective of GES descriptors
With respect to the implications of other legal instruments to permitting procedures and MSFD objectives, the following observations can be made:
• Not all investigated marine activities are typically licensed. In particular, with regard to maritime transport, the UN Convention on the Law of the Sea provides a ‘right of innocent passage’ for all merchant and naval vessels through the territorial seas of a coastal state. Maritime transport operates under a system of flag state and port state controls, and EU Member States therefore have relatively little control over many vessels in their waters though the standards of the vessels and conditions for those on the vessels are heavily regulated through the IMO (International Maritime Organization) and its legal framework.
• Only a limited number of instruments directly refer to the MSFD, which is logical given the recent character of the MSFD. However, a wide variety of EU and international legal instruments deal with the same subject matters as the GES descriptors in a way that their broader implementation will contribute to achieving the MSFD objectives.
• The GES descriptors for which international instruments appear most relevant in terms of permitting and licensing procedures, are D1, D5, D8 and D10. Biodiversity (D1) is often very sensitive to human pressures (e.g. disturbance, damage to or destruction of habitats) from a broad range of human activities and therefore needs to be legally protected by means of adequate instruments targeting all these sectors. The same applies to eutrophication (D5), concentration of contaminants (D8) and marine litter (D10) as these are different types of pollution, generated by a broad range of human activities. In particular, D1 and D8 are by far most addressed by international legal frameworks. There is a substantial body of legislation covering biodiversity and ecosystem protection and reduction of marine pollution via hazardous substances. Other sources of pollution are covered well too (D5 and D10).
• There are less international instruments that appear to be of relevance for descriptors D3, D6, D7 and D9, in terms of permitting and licensing. For D3 (commercial fish), this is explained by the scope of this study, which excludes commercial fisheries. For D9 (contaminants in seafood) this can be explained by the fact that it is indirectly affected by other legislation (less pollution results in better performance of D9)22. D6 and D7 are only covered by more horizontal types of instrument such as the legislative framework on environmental impact assessment and the Regional Sea Conventions.
• While some legal instruments will only be of relevance for one or two GES descriptors (e.g. legislation on invasive alien species) other legal instruments are more horizontal and cross-cutting. That is why the legislative framework on environmental impact assessment might be relevant to provide information on all GES descriptors for licensing and permitting procedures.
22 Commission Regulation (EC) No 1881/2006 may be considered as 'relevant' for D9, however this paragraph only looks at potential relevance in terms of contribution and usefulness of other legislation for the licensing and permitting procedure, it is why it has not been listed here.
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• Some legal instruments typically focus on specific marine activities such as the Offshore Safety Directive (oil and gas sector), the Renewable Energy Directive (wind energy, tidal energy) and the MARPOL Convention (shipping), while other regulations are sector-independent (e.g. Birds and Habitats Directives). Sectors which seem to be only partially covered by international legislation are marine recreational activities, carbon capture and storage (although covered in one of the OSPAR MSFD Advice Documents), construction activities and land reclamation, and dismantling activities.
• Legal instruments which also apply to land-based activities (e.g. Water Framework Directive and sub-directives) mainly have a link with D1, D5, D8 and D10.
2.3.4.4 A more detailed analysis with regard to specific international legislation
SEA and EIA
From the table above it is clear that both the SEA Directive and EIA Directive will be relevant for a wide range of GES descriptors, if not all. As a consequence, SEA and EIA can be considered as the most suitable instruments to include MSFD environmental targets in the planning and permitting process of marine activities. How to operationalise this, in particular how to translate regional scale ambitions into local scale impact assessments and permit conditions, is however a challenge (see 2.5.2 Recommendations).
It is interesting to compare Table 2 with Table 6 (expected impacts) and Figure 3 (importance of marine activities in Member States). Most activities with potentially important environmental impacts are covered by the EIA Directive, but some are not, although their potential impacts might be substantial. This is the case for submarine cables for electricity transport, and dismantling/decommissioning and/or removal of (former) offshore infrastructure or objects. This last category is not yet a frequent activity, but it might become important in the future. Even if environmental impacts of dismantling activities would be covered by the EIA prepared in the pre-construction phase, the question remains if the assessment will still be valid after 20 or 30 years, when the dismantling will actually start. Even if dismantling techniques might still be the same, the sensitivity of the affected environment might have changed in that time period. It must be emphasized that some marine activities with potentially important environmental impacts are neither considered as projects under the EIA Directive, nor are licensed. This is the case for certain maritime transport and merchant shipping operations.
However, while in principle all marine activities with potential impacts on the marine environment should be covered by SEA in the planning phase (at least if these are covered in plans and programmes which fulfil the criteria of the SEA Directive, i.e. the respective plan should set the framework of projects that are listed in EIA Annex I and II, or require Article 6 or 7 assessment under the Habitats Directive; this is usually the case at the level of sectorial planning or maritime spatial planning), this is not the case for EIA in the project phase which applies only for certain activities at a certain scale and sometimes only in specific locations.
The Habitats Directive
Marine biodiversity is addressed by a wide range of international regulatory instruments, either directly or indirectly, which reflects the pressures it is subject to and the increasing recognition of the socio-economic services provided by marine ecosystems (see also SOER 201523).
The Habitats Directive is a major instrument for contributing to achieving D1 environmental targets as it affords protection to key marine habitats under Natura 2000 and to key marine species listed in Annex IV. In particular, this is done through the obligatory procedure to screen for and – if deemed necessary – to prepare an appropriate assessment as part of the planning and permitting process for marine activities (Art 6.3). If there is a risk of significant impacts to site integrity of a Natura 2000 site or to Annex IV marine species, Member States are obliged to take the necessary mitigation measures (or take necessary compensation measures if such risk cannot be avoided and Art. 6(4) conditions are met). However, Member
23 EEA (2015). State of the Environment Report.
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States might face difficulties in the field of scientific knowledge gaps especially offshore, dealing with uncertainty, cumulative impacts, the difficulty to restore some damaged marine habitats, impacts on the network function of designated marine sites as part of the Natura 2000 network24, etc. Also, there might be inconsistencies in the way Member States deal with the screening for appropriate assessment, as the Habitats Directive leaves some room for interpretation. Paragraphs 6(3) of the Habitats Directive states that any plan or project likely to have a significant effect on a Natura 2000, either individually or in combination with other plans or projects, shall undergo an Appropriate Assessment to determine its implications for the site.
Other key regulatory instruments
Other key regulatory instruments or groups of instruments are:
• The Maritime Spatial Planning Directive (MSP): • covers all marine activities and particularly contributes in the field of ‘spatial control measures’, as
referred to in Annex VI of MSFD • The implementation requires data collection, consultation with stakeholders, plan development and
subsequent stages of implementation, enforcement, evaluation and revision - in a similar way to marine strategies under MSFD but it is not clear whether both processes will be linked or progressed collaboratively.
• MSFD does not provide an operational framework to manage human activities but MSP does. MSPs developed will be subject to the SEA Directive. In a planned area MSP determines the mix of drivers and their expected pressures.
• MSP needs to be coherent across multiple spatial scales as GES must be achieved at regional level which may be beyond an MSP area (Plan Area). It also needs to link with terrestrial planning as a number of descriptors are related to land-based sources (D5, D8, D9, D10, D11)
• The Environmental Liability Directive (ELD)
• The ELD has no direct link to planning and permitting of activities as it focuses on environmental damage caused by activities which already received a licence. Preventive measures are not the subject of the ELD as these are dealt with by other EU environmental legislation. However, what might be interesting in the framework of planning and permitting marine activities is the lessons learned based on analysis of ELD cases in the marine environment. These could be useful to consider in the planning and permitting process of new marine activities (or renewal of permits). However, as the transposition of ELD to apply to MSFD (due to amendment on ELD Directive by Offshore Safety Directive in 2013) only had to be completed by Member States by July 2015, it is unlikely many cases have arisen so far.
• The Water Framework Directive and its daughter directives
• The WFD applies in coastal (one nautical mile from the baseline from which territorial waters are drawn) and transitional waters (estuaries) and therefore is highly relevant for permitting of marine activities in coastal waters.
• The whole regulatory framework dealing with prevention, reducing and managing of pollution caused by shipping (marine pollution by dumping of wastes and other matter, air pollution) (e.g. MARPOL)
• The Invasive Alien Species Regulation and the Regulation concerning use of alien and locally absent
species in aquaculture • Marine aquaculture is the most affected sector
24 Sites designated as part of the European Natura 2000 network (and in UK referred to as European Marine Sites (EMS)) are Special Areas of Conservation (SACs) and Special Protection Areas (SPAs).
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• The Offshore Safety Directive and the Offshore Protocol under the Barcelona Convention are particularly aiming to prevent, reduce and manage safety risks and associated environmental damage caused by the marine oil and gas sector
• The Regional Seas Conventions • These are most suitable political and administrative structures for supporting the implementation of
the MSFD by Member States • Although each of them has its particular focus areas they address most or all GES descriptors • Regarding permitting of marine activities, they might provide support by publishing guidance.
2.3.5 Step 3: Analysis of links and gaps between in ternational instruments and national approaches
2.3.5.1 Methodology
Step 2 provides an insight into how existing EU and other international legislation might contribute to achieving the MSFD environmental targets if applied to national approaches to planning and permitting/authorisation of human activities in the marine environment.
The basic mapping of national procedures (Step 2 of Task 1) provides an insight into the actual national approaches (planning, permitting and authorisation) used in relation to marine human activities. These approaches can be linked to international legal frameworks, which are directly or indirectly applicable in the Member States.
Member State feedback on the questionnaire provides additional information and insights into the current and potential future approaches of Member States.
By comparing all this information, a gap analysis was carried out (Step 3). This shows how existing EU and international legislation is used by Member States in their planning and authorisation of marine activities and ultimately in reaching MSFD environmental targets.
2.3.5.2 Outcomes
For those activities which are not, or are only partly, covered by international legislation Member States have developed their own specific national legislative framework. The inventory has resulted in a description of the authorisation procedures for each Member State with a reference to the legal instruments concerned. There is a wide range of ‘instruments’ for authorisation of marine activities throughout the Member States. It is also clear that a lot of these instruments are based on international legal requirements.
The analysis revealed that these instruments for authorisation ensure either (1) input control, (2) output control, (3) spatial and temporal distribution control, and can include (6) an economic incentive as well as an important aspect of (7) stakeholder involvement and communication to the public. Most activities are regulated through the EIA process, but differences in procedures and technical perspectives are apparent when screening different Member States which can have an effect on their contribution to GES.
The collected ‘practices’ and ‘instruments’ that are applied in Member States very rarely link to MSFD requirements or elements. This could be explained by the fact that legislation covering marine activities almost always precedes the entry into force of the MSFD. As most instruments however touch upon one or more of the different phases of the planning and permitting process, they provide at least potential opportunities to refer to one or more of the key elements of the MSFD, either to make existing legislation more coherent and efficient, or to make the MSFD more effective.
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A number of examples have been identified (see Good Practices included in Section 2.5.1) on how Member States have integrated specific MSFD elements in their national legislation related to planning and permitting; this integration is done either on a legal basis, a procedural basis, a technical basis, or a combination of each of these.
2.4 TASK 3 – workshop
2.4.1 Objective The Commission planned to organise a workshop as part of the contract with the objective to compile the findings and present them to Member States, to ensure an iterative process.
Furthermore, the objective is to ensure an exchange of good practices, and to receive reflections from stakeholders.
The iterative process is designed to
• Explore how some of the authorisations/permit requirements that are now applicable in only some Member States could be implemented in other parts of the EU; and
• Validate, jointly with the Member States, the main issues relating to linking instruments for planning and managing marine activities with MSFD requirements.
2.4.2 Approach Goal of the workshop
As explained in the overall approach, the contractor ensured the workshop was aligned to:
• The objectives of the dissemination; • The objectives of the Commission on key parts of the background document to be consulted; • The elaboration on practices applied through the EU in terms of regulating marine activities and linking
this to the MSFD requirements.
The main questions of the workshop that needed to be answered were the following:
• How are current permitting procedures linked to MSFD? • How do Member States propose to link permitting procedures to MSFD? • What good practices could be included and lead to certain recommendations? • Can certain good practices be transferred to other areas/other regions? • What is the cost of authorisation, licensing and permitting • Could costs increase so as to ensure MSFD requirements are met?
Who was invited?
The Commission invited MSCG and WG ESA members, as well as other interested stakeholders from relevant expert groups (MSP, EIA/SEA, etc.).
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How was the workshop organised?
Background document: including invitation, detailed programme, objectives of the workshop, the results of the analysis, preliminary recommendations and topics for discussion. The background document (in its revised version) is included in Annex 5: The background document (in its original version, as distributed to the invitees) is available at: https://circabc.europa.eu/w/browse/8ff2a0fa-
fd6e-4f0d-8abd-2aec3c06a5fb
Workshop: The workshop was organised as a plenary session with presentations and time for questions and discussion. Presentations were made by the contractors, Member State authorities and stakeholders. All presentations are available on: https://circabc.europa.eu/w/browse/8ff2a0fa-fd6e-
4f0d-8abd-2aec3c06a5fb
2.4.3 Outcomes of the workshop • Minutes of the workshop (see Annex 6: Workshop minutes) • Revised background document (see Annex 5: Workshop background document). The audience
was given two weeks to submit comments on the background document. Where appropriate, these comments were used to revise the background document. This was to ensure there were no errors and that differences in interpretation could be used to explain some of the results.
• Issues to address in the Recommendation Section: discussions at the workshop resulted in a more in-depth view on the recommendations. Issues to address are included in the Minutes of the workshop (Annex 6: Workshop minutes). The recommendations in the Background document of the workshop (Annex 5: Workshop background document) were revised and the final result “set of recommendations” is included under Section 2.5.2.
2.5 TASK 4 – good practices and recommendations: Objectives:
Task 4 provides good practice examples and recommendations on the use of licensing, authorisations and permitting for human activities that affect GES. This part of the document has therefore different purposes:
1. Inform Member States on good practices and principles 2. Provide recommendations to the Member States 3. Provide recommendations to the European Commission through mapping/benchmarks so they can
provide meaningful assessment and recommendations to the Member States and give indications on the effort required for the next MSFD cycle
4. Make recommendations to all parties concerned, including the Commission, on the opportunities for extending the application of MSFD-related authorisations/permits to other EU Member States, where they do not currently exist.
Activities:
• Refine the observations, conclusions and policy advice from previous tasks in a readable and usable way.
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2.5.1 Good Practices Overview of good practices in the various Member St ates
In this chapter, an overview of “good practices” is given, based on the compiled results of the questionnaires completed by a number of Member States, the interviews with Member State authorities, the presentations at the workshop and contacts with, and input from, various experts and stakeholders.
Each good practice contains:
• A reference to the Member State or Region. • A set of keywords relevant to the good practice example. These key words can be used for further
discussions on good practices highlighting various aspects of how instruments are designed or applied or how the process of regulation works.
• A summary of the good practice example. • Type of measure applied (see Table 8: List of types of instruments (built upon Annex 6 of the
MSFD, types of measures)).
At this stage, focussing on Member State specific practices for specific marine activities, no further attention has been paid to sectoral regulation, and potential good approaches in this regulation, as this varies across the EU. It is considered to an extent in the recommendations, where specific comments are made on certain sectors (e.g. aquaculture, dredging, ocean energy development) in relation to certain issues or opportunities (e.g. scale, risk-based approach versus precautionary approach, MSP, etc.).
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Scotland (UK) Keywords: environmental sensitivity mapping, nested approach to marine planning, close collaboration between applicants and authorities, tight interlinkages on data through research, authorities and applicants, risk-based approach. Summary: In Scotland, the procedures are such that environmental sensitivity mapping gives a first outline of the potential for new development of marine activities. This process is similar to Strategic Environmental Assessment in approach and undertaken over a relatively large spatial scale. It identifies areas where constraints are not absolute. The map is a combination of 19 different sensitivity layers, each of which were weighted. Included: • Seabird distribution • Marine protected areas • Marine mammal distribution • Fish spawning grounds
In a next step, the sensitivity maps and Regional Locational Guidance (RLG) are used to define “areas of search” and as a result the most sensitive zones are removed to provide plan options described in sectoral specific plans. This ensures an MSP-like approach and clear, transparent way of indicating where permits/concessions may be granted for further marine development. Nested approach to marine planning The nested approach to marine planning ensures that high level objectives feed through from the strategic planning scale to the project scale. The following approaches are applicable to Scotland, and ensure transparency to applicants towards expected developments and consents. • UK Marine Policy Statement (High level objectives) • National Marine Plan (defines National sectoral priorities, provides framework for marine
planning decision making) • Regional and Sectoral plans (Steers developers away from environmental sensitivities and
conflict with other sectors) • Scottish marine regional plans (inshore area) – under development.
Ocean energy development For “new” types of energy such as wave and tidal energy, the consents are given on the basis of a risk assessment, where the Survey, Deploy and Monitor policy (SDM) is key to the consent procedure. SDM enables the consenting of wave and tidal energy projects by combining existing information on the environmental risks, technology risks, and project scale to distinguish between proposed projects for which there are sufficient grounds to seek determination on a consent application based on one year of wildlife survey and those proposed projects where a greater level of site characterisation is required. The intention of the policy is to provide first and foremost regulators, and secondly developers, with an efficient risk-based approach for taking forward marine renewable energy (wave and tidal) developments and will apply for pre-deployment and post-deployment of devices.
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The goal is to “socialise” intensive monitoring for initial project developers; and to ensure empirical data are collected to populate assessment methodology of impacts. The environmental sensitivity of an area, the scale of development and the technology risk, jointly then determines if there is a low, medium or high risk in terms of impact.
Streamlining of procedures and risk-based approach, Scottish approach: Procedures can be streamlined: one-stop shop: this involved Marine Scotland assuming operational responsibility for a number of additional licensing matters so as to streamline licensing processes and reduce the administrative burden on applicants Regional Locational Guidance (sensitivity led approach to identifying the suitability of areas) - sectoral guidance (eg sectoral plans for renewable energy) but ultimately a risk based approach to assessments is understood to be necessary to establish a regulatory process that ensures sustainability and maintains competitiveness. References Survey, Deploy and Monitor licensing policy guidance. (April, 2016). Version 2 http://www.gov.scot/Resource/0049/00498694.doc The One Stop Shop for Marine Licensing in Scotland. Introduction of the Marine Licence, April 2011. http://www.gov.scot/Resource/Doc/295194/0116739.pdf RiCORE project – reviewing risk based consenting approaches across EU – will further finesse the SDM approach with the aim of establishing this as EU wide accepted method. OEF Roadmap projects – minimising costs, improve streamlining, cumulative impacts. Types of measures: spatial and temporal distribution control, input and output control, management coordination measures
Belgium Keywords: MSP, fee for monitoring, research and data retrieval Summary: Maritime Spatial Planning as a basis for environmen tal permitting procedures MSP is the spatial framework for human activities in the marine environment. Maritime spatial zoning plans can guide the granting or denial of individual permits for the use of marine space. It has already been done in the past and will be done in the future. The content of the MSP and how the MSFD is integrated is given below.
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Fee system for ensuring monitoring and research into the effects done by the Scientific Institute of the Belgian authorities: A fee system exists that ensures standard procedures for monitoring through one scientific institute, and is paid for by the applicants. Through a Royal Decree for the EIA procedure, monitoring and research into the effects of offshore installations should be conducted by the BMM (Beheerseenheid van het Mathematisch Model van de NoordZee; scientific institute of the Belgian authorities) and applicants need to contribute to this financially. For example for sand extraction: each developer needs to pay for a permit in accordance with the volume to be extracted. This is used for financing research on the effects of exploration and exploitation activities on the marine environment and seafloor. The results of this monitoring are presented in a three-year congress and associated report that is organised by the service “Continental Plat”. In terms of windfarms development it is organised in such a way that developers have to contribute in a similar way to the integrated monitoring (a requirement in the environmental permit, this includes monitoring and surveillance of effects). This contribution also includes a financial contribution to the decommissioning of wind farms. Types of measures: spatial and temporal distribution control, input and output control management coordination measures, economic incentives, awareness raising
France Key words: change to the Biodiversity, Nature and Landscape provisions to ensure marine protection considering the MSFD, the pre-authorisation process, cumulative impacts and fee system Summary:
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Following a change in the law for recovering biodiversity, nature and landsca pe of March 18 2016; provisions included in Articles 40 and 62 are new to the existing regulation, http://www.senat.fr/leg/pjl15-484.html “PROJET DE LOI ADOPTÉ AVEC MODIFICATIONS PAR L'ASSEMBLÉE NATIONALE EN DEUXIÈME LECTURE” Article 40: For authorisations of activities on the continental shelf and the exclusive economic zone, the delivered authorisations must be compatible with the environmental targets in the the plan of action for the marine environment established by France (in accordance with Article 5 of the MSFD). Article 62: The environmental code is modified as such that the management scheme of activities needs to be compatible with the environmental targets defined in the plan of action established by France (in accordance with Article 5 of the MSFD. Consideration of cumulative impacts France has created a working group in January 2016 to produce guidelines on improving the assessment of cumulative effects of impacts in the marine environment. The objective is that these guidelines will create conditions for better handling of this complicated aspect by the responsible Regional directorates. Questions could be “for each new project, does one evaluate the cumulative effects?” and “How can these effects be evaluated”? The working group consists of personnel from the French Ministry of Environment (Water and Biodiversity, Energy, Marine aggregates, Harbour and Environmental assessment services), Regional directorates in charge of sea management, Agency for marine protected areas and scientific organisations (IFREMER, Muséum national d'Histoire naturelle, CEREMA). Types of measures: input and output control management coordination measures, economic incentives
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Ireland Keywords: fee system for monitoring, research and data retrieval Summary: Co-funding of the monitoring by applicants and gove rnment bodies In 1997 the Petroleum Affairs Division (PAD) set up the Petroleum Infrastructure Programme (PIP), Ireland's joint Government-Industry petroleum research programme, with the aim of promoting hydrocarbon exploration and development activities by funding of research and data gathering in both Irish offshore and onshore areas. A critical aspect of the programme is that the focus of research projects goes beyond the normal licence area–specific work and is designed so as not to duplicate the efforts of individual exploration licence groups, or of commercial contractors. It is also an integral part of the programme that Irish researchers are given an opportunity to participate in the research projects. PIP is funded by annual contributions from holders of Frontier Exploration Licences offshore Ireland and by the Department. In addition to funding of research and data gathering PIP provides a forum for cooperation among the exploration industry and the researcher community in Ireland as well as building capacity and expertise and Irish academic institutions. Types of measures: input and output control, economic incentives United Kingdom Keywords: fee system for monitoring, research and data retrieval Summary In the UK, the Aggregates Levy Sustainability Fund (ALSF) was established in 2002 and ran until March 2011, using revenue from the Aggregates Levy - a tax of £2.00 per tonne (2012) on primary aggregate sales which was originally introduced in 2002. The Levy itself was introduced as a means to better reflect the environmental costs of winning primary construction aggregates, and to encourage the use of alternative, secondary and recycled construction materials. To reduce the environmental consequences of winning primary construction aggregates, a proportion of the revenue raised by the new Levy was allocated to a research fund, termed the Aggregate Levy Sustainability Fund. The stated objectives of the wider Levy Fund were to: • minimise the demand for primary aggregates • promote environmentally friendly extraction and transport • reduce the effect of local aggregate extraction
The marine aggregate industry was involved in the assessment and evaluation of marine ALSF projects, and participated on steering groups, provided data and contribution in-kind support to a wide range of projects. Between 2002 and the close of the fund in March 2011, over £22.5 million were spent on research associated with marine aggregate extraction, to improve the way in which the industry was planned, assessed and managed. Types of measures: input and output control, economic incentives
Latvia Keywords: Permit for the use of the sea, MSP Summary: Marine Environment Protection and Management Law and Permit for the use of the sea Latvia has a Marine Environment Protection and Management Law (28.10.2010) (MEPML). The purpose is to ensure the protection and management of the marine environment of Latvia in order to: (1) achieve and maintain good marine environmental status; (2) facilitate sustainable use of the sea and marine ecosystem. The Law determines: (1) Basic provisions for use of the sea, the rights and obligations of the sea users; (2) Basic requirements of environmental protection for maritime spatial planning. Latvia issues a “permit for the use of the sea”, for all offshore activities. This helps in ensuring GES, when environmental restrictions are set in place.
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MSP: precautionary approach until final MSP and res triction of aquaculture development to mitigate eutrophication Cabinet Regulation on Development, Implementation and Monitoring of the Maritime Spatial Plan (30.10.2012): The MSP of Latvia has been developed in accordance with MSFD marine strategy and MSP Directive; According to the draft MSP: - no activity allowed until research finalised in possible new MPAs; - aquaculture development with additional nutrient and organic matter enrichment not allowed in Gulf of Riga Types of measures: input control, management coordination measures
UK Keywords: high-level policy statement, nested approach, MSFD Integration UK marine policy statement Summary: The UK Government published a Marine Policy Statement in 2011. It arose from the enactment of the Marine & Coastal Access Act 2009 and provides a framework for preparing Marine Plans and taking decisions affecting the marine environment. The MPS has four high level objectives: 1. Promote sustainable economic development; 2. Enable the UK to move towards a low-carbon economy; 3. Ensure a sustainable marine environment (healthy, functioning marine ecosystems); and 4. Contribute to the societal benefits of the marine area.
National and sub-national (from the four UK jurisdictions) Marine Plans are developed, implemented, monitored and amended in accordance with the MPS so as to ensure consistency in approaches to marine planning across the UK marine area. It also provides a steer for marine licensing and authorisation systems. Regional Marine Plans set out how the MPS will be implemented in specific areas. Whilst the MPS does not provide explicit guidance on every activity that occurs in or that may affect UK waters, the Statement does outline environmental, social and economic considerations that need to be taken into account in marine planning. In relation to the environment, for example, the MPS details what needs to be considered in marine plans in relation to marine ecology and biodiversity, noise, water quality and climate change, etc. and so can help to deliver the objectives of the MSFD. Types of measures: management coordination measures
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2.5.2 Recommendations The recommendations are structured as follows:
• Strengthening synergies between MSFD and other legislation • Technical issues • Procedural issues.
2.5.2.1 Strengthening synergies between MSFD and other legislation
Quite a number of opportunities relate to the SEA and EIA Directives, and the Habitats Directive. In the recommendations below we first describe the proposed interplay between the four key elements of the MSFD and the permitting of marine activities, with the SEA and EIA Directives and the Habitats Directive having a key role. Subsequently we provide some additional suggestions.
Member States should consider their environmental targets for each of the GES descriptors (once established by the MS) as the overall framework for specifying permit conditions for each project in the marine environment. For plans and programmes subject to SEA, as well as for projects which are subject to EIA, this framework is one of the main criteria for assessing significance of environmental impacts. For projects subject to Art 6(3) of the Habitats Directive this framework will refer to the conservation objectives for protected species and habitats, as part of the targets for GES descriptor 1 on biodiversity. Member States could consider the outcomes of MSFD Initial Assessment as part of the criteria for assessing significance of environmental impacts in SEA and EIA. And vice versa, they could use SEA outcomes as input information for updating MSFD Initial Assessment. This is obviously highly dependent on what the SEA has been conducted on. In the UK, for example, the Offshore Energy SEA includes hydrocarbons, gas storage and marine renewables in one process which covers an extensive marine space. Similarly Member States could use outcomes of MSFD Monitoring Programmes as part of the information for the environmental impact assessment (either EIA or SEA) report if applicable. They could identify synergies between SEA obligations on monitoring and MSFD Monitoring Programme. The SEA Directive requires to monitor identified significant impacts. Although not included as a specific obligation in the EIA Directive permit granting authorities can impose project developers to monitor identified significant impacts (which often happens with marine wind farms). Efficiency (time, budget) can be increased if these monitoring programmes are aligned with the MSFD monitoring programme (e.g. avoiding overlaps). This also works in the other way, i.e. the MSFD monitoring programme should take into account the existing monitoring programmes which in some Member States have already been established as a result of SEA and EIA projects (e.g. integrated monitoring programme related to windfarms in Belgian part of the North Sea, established by the competent federal ministry). A number of concrete practical recommendations are the following: • Member States could compile an overview of all marine activities in their territory for which some
type of monitoring has been imposed in the permit granting process, and analyse the subject (i.e. link to GES descriptors) and frequency of the monitoring, as well as the outcomes so far
• Based on that, Member States can compare with the MSFD monitoring programme, and identify synergies and differences; this could be the basis for a more efficient monitoring approach in terms of finance and in terms of coverage of GES descriptors: permit granting authorities should focus on issues which can hardly be covered by the MSFD monitoring programme (such as underwater noise) and avoid to impose monitoring obligations which are already covered by the MSFD programme (such as marine litter, seabirds); in some cases it might be useful to ask project developers a financial contribution to support or to further expand the overall monitoring programme, a cost which is lower than the cost to establish an own monitoring programme by the project developer; on the other hand – and this relates again to the scale issue – the granularity of the MSFD monitoring programme might not be sufficient to monitor local changes in the marine
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environment; in that case permit granting authorities can fill the gaps by imposing specific monitoring obligations in permits.
Similar types of synergies can be identified between SEA recommendations on mitigation measures and MSFD Programme of Measures . The MSFD PoM could also include actions such as establishing registers and maps of marine activities, or establishing a bookkeeping system of marine activities and their pressures as a tool to facilitate permit granting (see Section 2.5.2.2 ‘Technical issues’ below). Member States could prepare and provide specific guidance to permit granting authorities on how to apply the MSFD in permit granting processes , or could make this obligatory by adapting existing legislation (e.g. the national EIA/SEA legislation could be complemented by an article stating that “the EIA/SEA needs to consider the outcomes of MSFD Initial Assessment, as well as the environmental targets on each of the GES descriptors, as part of the criteria to be assessed”). There is one significant challenge that needs to be overcome, i.e. the scale issue . While MSFD targets apply at the regional seas level, permit conditions always apply at a local level (see ‘Technical issues’ below). Additional suggestions related to the SEA, EIA and Habitats Directives are the following: • Member States could further detail the criteria of Annex III of the EIA Directive (according to Annex
III the 'location of projects' is a key criterion, and it refers also to '(ii) coastal zones and the marine environment' as one of the locations of particular importance) on the basis of the MSFD Initial Assessment.
• Within the planning and permitting process for human activities at sea, Member States should ensure that a Natura 2000 screening is carried out (in order to determine the need for preparing an Appropriate Assessment) for all human activities as identified under Task 1. This screening should take account of the outcomes of the MSFD initial assessment and the MSFD monitoring programme. An important issue in this context relates to cumulative impacts (e.g. several small size operations for which on an individual basis no appropriate assessment is deemed useful, but for which it becomes necessary if combined).
• Also appropriate assessments should consider the outcomes of MSFD Initial Assessment and outcomes of MSFD Monitoring Programmes. The actual added value of these outcomes will depend on scale (i.e. is the granularity of collected data at regional scale appropriate for use in impact assessments at a local scale?) and time (i.e. is the data up to date?; in this respect we need to take into account the timelines: the Initial Assessment is a punctual snapshot (in 2012, 2018, etc.) whereas the Monitoring Programme is an on-going process).
Furthermore, there are synergies with a whole range of other EU Directives : • MSP comprises of data collection, consultation with stakeholders, plan development and
subsequent stages of implementation, enforcement, evaluation and revision - in a similar way to marine strategies under MSFD but it is not clear whether both processes will be linked or progressed collaboratively. This might be seen as an opportunity, and a recommendation. The Commission could produce a guidance document on how MSP can reflect MSFD requirements which could be used by competent authorities in MS when designing their MSP
• MSFD does not provide an operational framework to manage human activities but MSP may do. MSPs developed will be subject to the SEA Directive. In a planned area MSP determines the maximum acceptable mix of drivers and their expected pressures, and therefore should be applied as a most suitable decision-supporting instrument in the planning and permitting process of human activities at sea.
• The ELD (Environmental Liability Directive) has no direct link to planning and permitting of activities as it focuses on environmental damage caused by activities that are already permitted. Preventive measures are not the subject of the ELD as these are dealt with by a wide range of EU environmental legislation already. So far no marine ELD cases have been reported, but if future marine ELD cases would appear the lessons learned might be interesting in the framework of planning and permitting marine activities.
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• Member States might consider including measures related to planning and permitting in coastal RBMPs (sometimes separate e.g. Belgium, sometimes integrated in the RBMPs of RBDs25 that dispose of effluent in coastal waters)
• Permitting of marine activities with emissions leading to eutrophication, as covered under the NEC (National Emissions Ceiling) Directive, should take the respective NEC targets into account. Future revisions of the NEC's with regard to eutrophication pollutants should take the state of the GES descriptor on eutrophication (D5) into account.
• Although the Offshore Safety Directive only applies to the Oil & Gas sector, it might be useful to investigate to what extent lessons learned (e.g. on good practices) can be applied to other marine activities, even if it is on a voluntary basis
2.5.2.2 Technical issues
As Member States and in particular the permitting authorities still need to get familiar with how to translate MSFD environmental targets – which are established in relation to marine regions or sub-regions – into permit conditions for individual projects at sea, there is a need for more technical guidance. A number of guidance documents on marine activities are available but in most cases the right level of information for the permitting process is lacking. In particular, MSFD environmental targets need to be made tangible and operational at a local level despite their required regional application. Translating often non-quantitative large scale targets into concrete quantitative and location specific permit conditions is complex but absolutely necessary to avoid inconsistencies between permit granting and MSFD objectives. Also the assessment of cumulative and in-combination effects is a particular challenge in the context of MSFD environmental targets.
A potential way to deal with these challenges is to establish and maintain a bookkeeping system of pressures by marine activities , offering a permanent insight in the degree of remaining ‘environmental space’, and as such facilitating permit granting; in more detail: • 1°/ The gap between current state of marine environment (MSFD Initial Assessment) and the
targets as defined by each Member State (MSFD environmental targets), defines the available ‘environmental space’, which is an indication of the capacity of the marine ecosystem to absorb additional pressure without exceeding critical threshold values for each of the GES descriptors; this gap needs to be defined for each of the topics covered by the GES descriptors
• 2°/ a register of existing pressures by marine activities needs to be compiled, offering an overview of the total volume of pressures; these pressures cause impacts on the state of the marine environment; the current state is reflecting these cumulative pressures;
• 3°/ each additional marine activity - increasing the total volume of pressures – needs to be assessed on its additional impact in order to verify if the remaining ‘environmental space’ is not exceeded; this can be done by modelling; a sufficiently detailed modelling methodology also allows to deal with local conditions;.
• 4°/ if the remaining environmental space for one or more GES descriptors is too limited to allow additional marine activities which exert pressures affecting these descriptors, no permit can be granted unless strict conditions are imposed which guarantee no exceedance of critical threshold levels.
Specific per descriptor, recommendations on linking permitting to the MSFD in terms of technical aspects could be for example the following:
• Descriptor 1 refers to a typical end-point indicator. Indeed, biodiversity state is influenced by a whole range of pressures, many of them being reflected in other GES descriptors (i.e. descriptors 2, 3, 5, 7, 8, 9, 10 and 11). Biodiversity targets will be an important framework for assessing pressures of marine activities (e.g. in SEA, EIA). However, impacts on biodiversity are always case-specific and depend very much on the specific sensitivity of different species and habitats towards specific pressures. So permit conditions need to take presence and sensitivities of marine wildlife into account.
• For Descriptor 11, which is pressure-based and includes as indicators the trend in ambient noise levels and the total of impulsive noise events in space and time, the response to this descriptor by
25 River Basin Management Plans (RBMP) prepared by River Basin Districts (RBD) according to the Water Framework Directive
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the Member States was very diverse in terms of setting targets, as can be seen from the evaluation report of the Commission on the first phase of implementation of the MSFD by the Member States26. Five Member States (ES, FR, NL, PT, SI) have included high-level qualitative objectives rather than measurable targets. Two Member States (ES, PT) have also defined monitoring targets. Two other Member States (BE, DE) have opted to define very concrete noise exposure criteria that are also applied in Environmental Impact Assessment (EIA) legislation for wind farms, instead of defining pressure-based targets/indicators. One Member State (DK) reported only a target for impulsive sounds. Finally, one Member State (UK) opted for very concrete targets that further develop the conceptual approach behind the indicators which were essentially pressure-based. The impact of underwater noise is rather unknown. If targets (e.g. critical noise levels for cetaceans) are established, they could indeed be used in permitting conditions. At the moment, an impulsive noise register could be used to determine cumulative effects, similar to noise maps for ambient noise.
Most international convention secretariats have published guidelines and recommendations, and sometimes mandatory measures. These often contain useful material to apply in the planning and permitting process for marine activities, e.g. (only some examples for illustration):
• NASCO's (Convention for the Conservation of Salmon in the North Atlantic Ocean) recommended measures for the permitting process of aquaculture projects.
• ACCOBAM's (Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and contiguous Atlantic area, under the Bonn Convention) and ASCOBANS's (Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas, under Bonn Convention) obligations during permitting processes for projects with potential harmful impacts on cetaceans. As cetacean species are protected species under the Habitats Directive, Member States should take the necessary measures anyway.
• International Maritime Organization's Guidelines for the Control and Management of Ships' Biofouling; port States, flag States, coastal States and other parties that can assist in mitigating the problems associated with biofouling should exercise due diligence to implement the Guidelines to the maximum extent possible, which can play a significant role in reducing the risk of the transfer of invasive alien species.
• HELCOM Recommendation on permits for monitoring and research activities. • HELCOM Guidelines for Management of Dredged Material at Sea and HELCOM Reporting Format
for Management of Dredged Material at Sea.
The Regional Sea Conventions can play a major role in supporting the permit granting process of marine activities by Member State authorities. As an example, the OSPAR MSFD Advisory documents on a number of GES descriptors mainly focus on target setting, collection of information and monitoring. However, in addition to that, it would be most useful to prepare guidelines (including best practice) for authorities on how to deal with their environmental targets in the permitting process for marine human activities . The OSPAR MSFD Advice Document on Underwater Noise27 provides some useful initial information on best practice and on remaining gaps where additional research and adequate management is required: “The current UK consents and licensing systems are considered to provide an appropriate framework within which many of the marine developments likely to introduce energy into the marine environment can be managed. These systems are not, however, able to manage noise inputs from shipping, one of the larger contributors to low frequency, continuous marine sound and so efforts will need to continue at an international level to address these impacts.”
Useful recommendations can also be found in the publications by the representative organisations of marine sectors, such as the dredging sector represented by CEDA. As an example, additional information to the HELCOM Guidelines for Management of Dredged Material at Sea can be found at
26 REPORT FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT The first phase of implementation of the Marine Strategy Framework Directive (2008/56/EC) The European Commission's assessment and guidance 27 http://www.ospar.org/work-areas/cross-cutting-issues/msfd/msfd-advice-manuals
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CEDA’s website, in particular on beneficial uses of dredged material, including case studies, PIANC (2009) provides technical information on the assessment of options for beneficial use and recommendations on how to overcome constraints based on “lessons learned” from numerous cases studies in different situations in various countries.
2.5.2.3 Procedural issues
Finally, recommendations can be made at the governance level (how is this process managed?). A number of recommendations are listed below. A main source of information was the first seminar on Good practices in administrative simplification for the promotion of sustainable aquaculture, which took place in November 2015. Also the guidance document on ‘Streamlining environmental assessment procedures for energy infrastructure Projects of Common Interest (PCIs)28 provides useful recommendations, which are in principle applicable to other sectors.
• One-stop-shops and streamlining of licensing processes improve efficiencies and reduce costs; • Development of sector strategies (e.g. Strategic Framework for Scottish Aquaculture) provide a
broader view of sustainable development of the sector and may facilitate the permitting process of individual applications e.g. faster decisions on screening" for EIA or Appropriate Assessment, faster identification of permitting conditions, etc.);
• Cooperation, dialogue and sharing of information between the sector, the permitting authorities and potential other stakeholders might also contribute to a more efficient permitting process;
• Often the personnel granting consents are different to those implementing MSFD so there needs to be some type of coordination between them e.g. by means of national MSFD implementation groups where all those with consenting responsibilities would meet annually or bi-annually to update each other on what is being monitored for what, by whom, where and how; the MSFD people in the group can use that to inform the development of their next report/Programme of Measures/target setting.
• Sharing efforts between public and private actors (e.g. data collection, accessibility of data, financing of monitoring) might reduce overall costs as well as costs for both public and private actors;
• Streamlining permitting conditions between Member States will contribute to achieving a level playing field and will avoid additional burdens for offshore activities which cross jurisdictions;
• Good channels of communication and strong inter-departmental relations within Member States (e.g. one-stop-shop approach, ‘nested policy approach’) will help to ensure there is better links between the high level environment goals of MSFD and operational marine developments and how these are managed.
• The MSFD programme of measures could include measures related to the permit granting of marine activities e.g. preparation of specific guidance on how to translate MSFD environmental targets into permit conditions. Programme of measures of all Member States are currently being evaluated for their adequacy and coherence. This evaluation could inform the Commission on approaches currently being established.
28 http://ec.europa.eu/environment/eia/pdf/PCI_guidance.pdf
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ANNEXES
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Annex 1: National factsheets
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Annex 2: questionnaire model
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Annex 3: Overview of EU legislation and other inter national legislation/conventions/etc
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Annex 4: Links between relevant international legis lative frameworks, human activities and the MSFD
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Annex 5: Workshop background document
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Annex 6: Workshop minutes
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Arcadis Belgium nv/sa
Koningsstraat 80 Rue Royale
1000 Brussels
Belgium
02 505 75 00
www.arcadis.com
REVISED REPORT ON THE MSFD PERMITTING WORKSHOP 3 AUGUST 2016
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Contacts
JOHAN LAMMERANT
VERONIQUE ADRIAENSSENS [email protected]
T +32 (0)2 5057522
M +32 (0)474 29 84 24
Koningsstraat 80 Rue
Royale
1000 Brussels
Belgium
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CONTENTS
1 MSFD AND PERMITTING – OVERALL CONTEXT 4
1.1 The importance of permitting for achieving MSFD objectives 4
1.2 Contract to support this work 4
2 WORKSHOP 5
2.1 Objective of the workshop 5
2.2 Background document to the workshop 5
2.3 Workshop programme 6
3 RESEARCH FINDINGS 9
3.1 Outcome 1: activities in the marine environment 9
3.1.1 Activities in the marine environment occurring in marine waters of the Member States 9
3.1.2 Links between marine activities and GES descriptors 10
3.2 Outcome 2: Marine activities and international regulatory frameworks 12
3.2.1 Links between international regulatory framework and GES descriptors 12
3.2.2 The role of the SEA and EIA Directives in achieving MSFD environmental targets 19
3.2.3 Habitats Directive 23
3.2.4 Other key regulatory instruments 23
3.3 Outcome 3: Marine activities and the national regulatory framework 25
4 RECOMMENDATIONS AND POTENTIAL FOR FURTHER IMPROVEMENT 27
4.1 Recommendations 27
4.1.1 Strengthening synergies between MSFD and other legislation 27
4.1.2 Technical issues 28
4.1.3 Procedural issues 29
4.2 Challenges 30
4.2.1 Session 1: ‘Legal' challenges 30
4.2.2 Session 2: ‘Technical’ challenges 30
4.2.3 Session 3: ‘Procedural’ challenges 30
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1 MSFD AND PERMITTING – OVERALL CONTEXT
1.1 The importance of permitting for achieving MSFD objectives
Marine Strategy Framework Directive
The objective of the Marine Strategy Framework Directive (MSFD) is to reach Good Environmental
Status (GES) in marine waters by 2020. This will be achieved through the implementation of national
Marine Strategies that comprise different elements listed in Article 5(2), paragraphs (a) and (b) of the
MSFD.
Pursuant to Article 1(3) of the MSFD "Marine strategies shall apply an ecosystem-based approach to
the management of human activities [F]." This ecosystem-based approach to the management of
human activities is reflected in the MSFD in particular in the definition of good environmental status
which mentions the "sustainable use of resources".
Programme of measures and attainment of GES by 2020
One of the elements of these marine strategies is the development of a Programme of Measures
designed to achieve or maintain GES which Member States must report on to the Commission by 31
March 2016. The Commission will then assess these Programmes.
According to the MSFD, Programmes of Measures should in particular take into consideration the
following types of measures: Input controls, Output controls, Spatial and temporal distribution
controls, Management coordination measures, Measures to improve the traceability, where feasible,
of marine pollution, Economic incentives, Mitigation and remediation tools, Communication,
stakeholder involvement and raising public awareness.
The use of permits, licences and authorisations as measures may fall under several of the above
categories.
In view of this upcoming assessment exercise, the Commission is therefore interested in gathering
data on the use of authorisation, permitting and licensing procedures and its contribution of these
procedures towards reaching GES.
1.2 Contract to support this work
The overall objectives of the contract, awarded to ARCADIS, are to understand, map, compare and
analyse the use of licensing, authorisations and permitting for human activities in the marine
environment at national level in relation to the MSFD and the attainment of GES by 2020.
The analysis should answer the following general questions:
• How do the authorisation, licencing and permitting procedures contribute to the attainment of
GES by 2020? How are they linked to the MSFD and to other EU legislation?
• What costs are associated with authorisation, licencing and permitting procedures of human
activities in the marine environment?
• What good practices in terms of authorisation, licencing and permitting could inform the
development of a guidance document?
The organisation of this workshop is one of the tasks foreseen under this contract.
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2 WORKSHOP
2.1 Objective of the workshop
The objectives of the workshop are to:
• Share Member States' experiences on how authorisations/permitting requirements can help
attain MSFD objectives; and
• Explore the extent to which this experience can be transferred or applied in other Member
States or regional contexts.
Therefore, the workshop will answer the following questions:
• How are current permitting procedures linked to MSFD?
• How do Member States plan to link permitting procedures to MSFD?
• Do good practices currently exist in relation to permitting practices and MSFD objectives in
Member States?
• Can good practice be transferred to other areas/other regions?
• What costs are associated with authorization, licensing and permitting and could costs increase
as a result of MSFD requirements?
Furthermore, the workshop should inform the Commission about expectations from the workshop
participants in relation to the guidance on this subject.
The invitees consist of EC representatives, Member States (MSCG, EIA and MSP contacts) and
stakeholders (mostly MSCG contacts).
2.2 Background document to the workshop
This background document presents the key findings from the analysis of permitting processes in the
MS and the link to the international regulatory framework, and provides a number of
recommendations, illustrated with good practices on how MS, by means of their permitting procedures
and processes, can contribute to achieving the MSFD objectives. Based on these findings and
recommendations a number of challenges have been identified and will form the basis for discussions
during the workshop.
The findings are structured as follows:
1. Outcome 1: activities in the marine environment
2. Outcome 2: marine activities and the international regulatory framework
3. Outcome 3: marine activities and the national regulatory framework
These findings are mainly based on a questionnaire, completed 1by relevant competent authorities of
the EU Member State and followed by an interview, and a desktop study.
1 All Member States have been consulted through their MSCG contact, and positive responses (which means a completed questionnaire) were received for 11 Member States: Belgium, Croatia, Denmark, Finland, Lithuania, Malta, Netherlands, Republic of Ireland, Romania, Sweden and United Kingdom; with the possibility to interview 7 Member States (Belgium, Croatia, Denmark, Finland, Lithuania, Malta, Sweden).
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2.3 Workshop programme
April 8, 2016
9.15 – 9.30 Opening and registration
9.30.-10.15 am Opening session
9.30 – 9.40 Welcome and objectives of the workshop
(European Commission)
9.40 – 10.00 Main outcomes of the study (Arcadis)
10.00 – 10.10 Q & A
10.10 – 10.15 Organisation of the workshop (Arcadis)
10.15 – 12.15 am
Session 1 ‘legal’ challenges
This session deals with the way MSFD requirements are integrated in the national legislation on permitting of marine activities It covers topics such as integration of MSFD elements (e.g. Initial Assessment) in permitting legislation, potential overlaps (WFD, MSFD), the different application thresholds of EIA Annex II activities, non EIA listed activities, the role of the MSP Directive for permitting, the Habitats Directive, etc.
10.15 – 10.25 Introduction to the topic (Arcadis)
10.25 – 11.30
Presentations
• WFD Navi Task Group
• IOGP
• Seas-at-Risk
• 3 Member States (BE on MSP, FR on compatibility of
authorizations with MSFD targets and LV on MSFD
requirements in law)
11.30 – 11.45 Coffee Break
11.45-12.15 Debate including Q&A on presentations, potential way(s) out and
possible solutions
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12.15 – 13.30
Session 2 ‘technical’ challenges’
This session deals with GES descriptors-related information, or lack thereof, and the resulting consequences for the permit granting process. The possible consequences for the permitting process of Member States' (sometimes uncertain) determination of GES in 2012 could also be discussed, as well as how an improved GES Decision may help resolve some of these issues. Discussion topics include defining permit conditions, scale issues (e.g. monitoring), information for baseline assessment, knowledge gaps, cumulative impacts, databases, uncertainty, pre-cautionary approach, risk-based approach/.
12.15 – 12.25 Introduction to the topic (Arcadis)
12.25 – 13.10
Presentations
• 3 Member States (BE on fund offshore developments; IE on issues on
bringing MSFD in permitting; FR on cumulative effects in environmental
assessments)
• CEDA
• Birdlife
13.10 – 13.30 Debate including Q&A on presentations, additional testimonies by Member States,
the potential way(s) out, requested support
13.30 – 14.30 Lunch
14.30 – 15.30
Session 3 on ‘procedural’ challenges
This session deals with the permitting procedures. Topics include ways of streamlining procedures, models for sharing efforts between public and private actors (e.g. data collection, accessibility of data, cost issues such as the financing of monitoring), differences in practice between big projects (often handled by well-staffed central authorities) and small-scale investments (which may be handled by understaffed local authorities) and coordination between Member States (variations in permitting conditions between MS might cause additional burdens for offshore activities which cross jurisdictions) or even between different departments within one Member State (e.g. one-stop-shop approach, ‘nested policy approach’).
14.30 – 14.40 Introduction to the topic (Arcadis)
14.40 – 15.10
Presentations
• 2 presentations (UK on Marine Statement (tbc), Scotland on
nested policy approach (tbc))
• industry representative aquaculture (tbc)
15.10 – 15.30 Debate including Q&A on presentations, additional testimonies by
Member States, the potential way(s) out, requested support
15.30 – 15.45 Coffee Break
REVISED REPORT ON THE MSFD PERMITTING WORKSHOP
8
15.45 – 16.15 Session 4: CLOSING SESSION (Moderator: EC)
15.45 – 16.10 Conclusions of the workshop (EC or MSCG lead)
16.10 – 16.15 Practical information regarding finalisation of the study
BACKGROUND DOCUMENT TO THE MSFD PERMITTING
WORKSHOP
9
3 RESEARCH FINDINGS
3.1 Outcome 1: activities in the marine environment
3.1.1 Activities in the marine environment occurring in marine waters of the Member States
Based on information from 10 Member States (through completion of the questionnaire and/or an
interview), the following was collected and is also summarized in Error! Reference source not
found.:
• Prevailing activities in the 10 MS consulted are: aquaculture, dredging (including disposal),
maritime transport (excluding fishing as this was out of scope2) and cruises, submarine cables,
scientific activities, recreational activities (boating, diving, water sports), construction activities
and development of port and marina infrastructure. (min 80% of the countries considered),
• Less frequently occurring activities are sea-bed mining, desalination, ship building and
dismantling, carbon capture and storage (less than 20%),
• Activities with a moderate presence across EU marine waters are renewable energy (offshore
wind, wave, tidal) and non-renewable exploration (sand, gravel, oil, gas), ecological restoration
activities and managed dumping at sea (30 to 70% of the MS indicated that these activities are
ongoing3).
Figure 1 Y axis = From the 10 MS consulted, % of the MS that responded positive on the presence of a certain activity; X – axis, activities considered: (1): aquaculture, (2) seaweed farming, (3) marine biotechnology, (4) Exploration, exploitation and extraction of oil, gas or other non-renewable energy resources, (5) Sea-bed mining = exploration, exploitation and extraction of minerals) within the jurisdiction of a sovereign state, (6) Sea-bed mining = exploration, exploitation and extraction of minerals) within the jurisdiction of a sovereign state, (7) Maintenance dredging (beneficial use, relocation, placement or processing of dredge materials not included) (8) Capital dredging (beneficial use, relocation, placement or processing of dredge materials not included)(9) Disposal of dredged materials (10) Desalination / water abstraction(11) Production of energy from renewable sources, wind (12) Production of energy from renewable sources, tidal (13) Production of energy from renewable sources, wave (14) Submarine cable and pipeline routes (15) Maritime transport, merchant shipping (16) Offshore ship building or dismantling (17) Scientific and research activities (18) Geophysical surveys (seismic, sonar) (19) Watersports (20) Recreational boating (21) Sea-based small-scale recreational fishing (non-commercial) (22) Recreational diving (23) Small-scale sea-based tourism, such as whale and dolphin watching, boat tours to seabird nesting sites, excursions to islands, etc. (24) Cruise tourism (25) Activities for conservation purposes and ecological restoration
2 Commercial fishing was not included in this study, as 1°/ it was agreed not to cover all human activities due to the limited budget (inclusion of fisheries would be a whole other study in itself) and 2°/ also because fisheries is regulated through the Common Fisheries Policy and quota system. 3 Care is required when discussing managed dumping at sea to be sure that Member States are differentiating correctly. It is common for dredged material disposal to sea to be referred to as ‘dumping at sea’; it is also worth noting that under the terms of the 1996 London Protocol, there are very strict international controls on what can be dumped.
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
1 2 3 4 5 6 7 8 9 1011121314151617181920212223242526272829303132333435
REVISED REPORT ON THE MSFD PERMITTING WORKSHOP
10
infrastructure (26) Construction in the marine environment (27) Port and marina infrastructure (28) Offshore land reclamation (29) Dismantling/decommissioning and/or removal of (former) offshore infrastructure or objects (30) Fly-tipping and unmanaged dumpsites in marine environment (31) Managed dumping at sea (32) Deliberate introduction of marine species (33) Deliberate introduction of marine species (34) Carbon capture and storage (CCS) (35) Other human activities in the marine environment, please specify.
3.1.2 Links between marine activities and GES descriptors
Not all marine activities are equal in terms of their potential to have environmental impacts on the topics
covered by the GES descriptors, in particular when taking into account the scale of the impacts. GES
descriptors apply at a regional scale while many marine activities have very local impacts. On the other
hand although some marine activities might have only very local impacts, cumulative impacts might be
important and also location of these impacts is a factor of influence (e.g. nearby more sensitive areas)
Table 1 provides an overview of possible links between marine activities and the GES topics covered
by the MSFD, indicating where the interactions are potentially more significant or of less significance.
This is based on expert judgment of the contractor's team, i.e. team experts with extensive experience
in EIA. It is important to bear in mind the generic and indicative nature of this table, because the
reality will depend very much on the spatial and temporal intensity of the activity in a given area.
The overview shows that D6 and D7 are amongst the GES descriptors where impacts may arise from
a large number of marine activities. However, as a result of excluding fishing, the major contributor to
deterioration in seafloor integrity is also missed. As indicated by the work by ICES for OSPAR4 bottom
trawling and the use of dredges affect significant areas of the EU seabed. A GES descriptor which is
only to a minor extent affected by marine activities is D10, which can be explained by the fact that the
main source of the pressure is land-based. Due to the fact that fisheries were not included in the scope
of this project, D3 is shown in the analysis as the least affected GES topic in this overview. Conclusions
with regard to marine activities with high or low impacts are hard to be drawn as impacts are always
highly case specific.
4 http://www.ices.dk/news-and-events/news-archive/news/Pages/ICES-maps-the-intensity-of-fishing-activities-affecting-the-seabed-.aspx
BACKGROUND DOCUMENT TO THE MSFD PERMITTING
WORKSHOP
11
No. Human Activity D1
Biodiversity
D2
Non-indigenous
species
D3
Commercially
exploited fish and
shellfish
D4
Food webs
D5
Eutrophication
D6
Sea-floor integrity
D7
Hydrographica
l conditions
D8
Contaminants
D9
Contaminants in
seafood
D10
Marine litter
D11
Energy (including
underwater noise)
Comments I justifications
* D1 and D4 are closely linked. For this exercise, we consider D4 only for
spawning areas, nursery habitats, sensitive habitats,...
* Turbidity (plumes) to be considered as part of D7, even not permanent
* D8: all activities that are ship bound: risk of oil spills. For the purpose of
this exercise, risk from accidental oil spills was not considered.
* D11: noise for all ship bound activities
1
Production of living resources and extraction of living
resources
1a aquaculture (fish, shellfish and macro-algae) * D6: especially in case of bottom aquaculture production systems
1c seaweed farming 1d marine biotechnology 2 Extraction of non-living resources
2a exploration, exploitation and extraction of oil, gas or other non
renewable energy resources * for construction demolition
* exploitation only D1 and D11
* D8 and D10: as offshore rigs often dump chemicals
2b exploration, exploitation and extraction of marine aggregates
(sand or gravel)
2c sea-bed mining
2d
maintenance dredging * D4 not included as we can assume that dredging in sensitive areas will not be allowed
* D8: potential release of toxic elements; risk on oil spills
* D9: direct link release of chemicals vs in seafood to small
2e
capital dredging * D4 not included as we can assume that dredging in sensitive areas will not be allowed
* D8: potential release of toxic elements; risk on oil spills
* D9: direct link release of chemicals vs in seafood to small
2f desalination / water abstraction * D11: only during construction dismantling phase. During pumping (exploitation)
rather small
3 Renewable energy generation 3a production of energy from renewable sources, wind 3b production of energy from renewable sources, tidal D11 only construction and demolition
3c production of energy from renewable sources, wave 4 Transport 4a submarine cable and pipeline routes * Exploitation only D11
* no D7 as no permanent changes
4b maritime transport, merchant shipping 5 Offshore ship building 5a offshore ship building or dismantling 7 Research and conservation 7a scientific and research activities Research may not cause incidental impact (controlled conditions)
7b geophysical surveys (seismic, sonar) * D6 in case sea bottom samples are taken
7c conservation activities for conservation purposes and
ecological restoration infrastructure D2: only had structures
D11: construction demolition only
8 Coastal tourism I recreation 8a watersports (not mechanically powered) 8b recreational boating 8c sea-based small-scale recreational fishing (non-commercial) D6 and D11: only in case of small trawl fishery (shrimps, flat fish)
8d recreational diving * D1 and D3: divers may not harm and may not take souvenirs (For this exercise, we
assume that this is so). So not considered
8e cruise tourism / ships 9 Coastal and marine structure and infrastructure
9a construction in the marine environment D2: only in case of hard structures
D11: only construction demolition phase
9b port's and marina's infrastructure D11: only construction demolition phase
9c offshore land claim (not connected to the coast) D2: only in case of hard structures
D11: only construction demolition phase
9d dismantling/decommissioning and/or removal of (former)
offshore infrastructure or objects
11 Marine pollution and disposal of materials at sea
11a
fly-tipping and unmanaged dumpsites in marine environment * D4 not considered as we can assume that it will not be allowed in sensitive areas
* D5 only in case of increased concentrations of nutrients
11b managed dumping at sea (dumping sites included) * D2: in case of dumping invasive species
* D5: in case dumped material is enriched with nutrients
11c deliberate introduction of marine species
11d
disposal of dredged materials * D4 not considered as we can assume that it will not be allowed in sensitive areas
* D5 only in case of increased concentrations of nutrients
11e
disposal of other materials at sea * D4 not considered as we can assume that it will not be allowed in sensitive areas
* D5 only in case of increased concentrations of nutrients
12 Carbon sequestration 12a Carbon capture storage (CCS)
Table 1: Links (in terms of possible impacts) between marine activities and GES descriptors (red: main possible impacts; orange: potential or minor possible impacts; blank: no significant impacts)
REVISED REPORT ON THE MSFD PERMITTING WORKSHOP
12
3.2 Outcome 2: Marine activities and international regulatory frameworks
Many other international regulatory instruments - apart from the MSFD – relate to the protection of the
marine environment and influence the permitting of marine activities.
3.2.1 Links between international regulatory framework and GES descriptors
A list of relevant EU legislation and initiatives, as well as other international agreements and conventions5,
which deal directly or indirectly with one or more GES topics, has been created. The relevant laws have
been selected, based on the following three criteria:
• there needs to be a thematic link with one or more of the 11 GES descriptors
• there needs to be a link (direct or indirect) with one or more of the marine strategy elements of the
MSFD, which interact with the development consent process of selected human activities. The
elements of the marine strategy are the initial assessment, the GES descriptors, indicators and
targets, the monitoring programmes and the programmes of measures.
• the legal frameworks need to be binding in the Member States; as this study is not a legal compliance
study we did not check in how far relevant Directives are effectively transposed, and Conventions
and Protocols are effectively ratified/adopted/in force by the concerned Member States.
In addition to these legal documents we have included one non-binding document prepared by HELCOM,
due to its high relevance for this research, i.e. a recommendation on permitting for monitoring and research
activities.
D1
Bio
div
ers
ity
main
tain
ed
D2
No
n-i
nd
igen
ou
s
Sp
ecie
s
D3
C
om
merc
ial
fis
h
D4
Fo
od
web
s
D5
Eu
tro
ph
icati
on
D6
Sea
flo
or
inte
gri
ty
D7
Hyd
rog
rap
hic
al
co
nd
itio
ns
D8
Co
ncen
tra
tio
ns
of
co
nta
min
an
ts
D9
Co
nta
min
an
ts in
sea
foo
d
D1
0 M
ari
ne
lit
ter
D1
1 In
tro
du
cti
on
of
en
erg
y
SEA Directive ? ?
EIA Directive ? ?
UNECE Convention on Environmental Impact
Assessment in a Transboundary Context (Espoo
Convention)
? ?
Habitats Directive
Birds Directive
Convention on Biological Diversity 1992
Agreement on Straddling Fish Stocks and Highly
Migratory Fish Stocks 1995
Convention for the Conservation of Salmon in the
North Atlantic Ocean 1982
ACCOBAMS under the Convention on Migratory
Species (Bonn Convention)
5 The transposition of Directives and ratification/adoption/entry into force of Conventions and Protocols was not checked.
BACKGROUND DOCUMENT TO THE MSFD PERMITTING
WORKSHOP
13
D1
Bio
div
ers
ity
main
tain
ed
D2
No
n-i
nd
igen
ou
s
Sp
ecie
s
D3
C
om
merc
ial
fish
D4
Fo
od
web
s
D5
Eu
tro
ph
ica
tio
n
D6
Sea
flo
or
inte
gri
ty
D7
Hyd
rog
rap
hic
al
co
nd
itio
ns
D8
Co
ncen
tra
tio
ns
of
co
nta
min
an
ts
D9
Co
nta
min
an
ts in
seafo
od
D1
0 M
ari
ne
lit
ter
D1
1 In
tro
du
cti
on
of
en
erg
y
ASCOBANS under the Convention on Migratory
Species (Bonn Convention)
Agreement on Wadden Sea Seals under the
Convention on Migratory Species (Bonn
Convention)
Maritime Spatial Planning Directive
Environmental Liability Directive
Water Framework Directive (WFD) ?
Directive on Environmental Quality Standards
('the Priority Substances Directive')
Directive concerning the management of bathing
water quality
Urban Waste Water Treatment Directive
Nitrates Directive
National Emission Ceilings Directive
Directive on industrial emissions
Directive on port reception facilities for ship-
generated waste and cargo residues
International Convention for the Prevention of
Pollution from Ships (MARPOL)
Annex I: Prevention of pollution by oil (entered into
force 2 October 1983)
Annex II: Control of pollution by noxious liquid
substances (entered into force on 6 April 1987)
Annex III: Prevention of pollution by harmful
substances in packaged form (entered into force on
1 July 1992)
Annex IV: Prevention of pollution by sewage from
ships (entered into force on 27 September 2003)
Annex V: Prevention of pollution by garbage from
ships (entered into force 31 December 1988)
Annex VI: Prevention of Air Pollution from Ships
(entered into force on 19 May 2005)
Convention for the Prevention of Marine Pollution
by dumping of wastes and other matter - London
Convention and Protocol
International Maritime Organization's Guidelines
for the Control and Management of Ships'
Biofouling
International Convention for the Control and
Management of Ships Ballast Water and
Sediments (BWM)
Invasive Alien Species Regulation
Regulation concerning use of alien and locally
absent species in aquaculture
REVISED REPORT ON THE MSFD PERMITTING WORKSHOP
14
D1
Bio
div
ers
ity
main
tain
ed
D2
No
n-i
nd
igen
ou
s
Sp
ecie
s
D3
C
om
merc
ial
fish
D4
Fo
od
web
s
D5
Eu
tro
ph
ica
tio
n
D6
Sea
flo
or
inte
gri
ty
D7
Hyd
rog
rap
hic
al
co
nd
itio
ns
D8
Co
ncen
tra
tio
ns
of
co
nta
min
an
ts
D9
Co
nta
min
an
ts in
seafo
od
D1
0 M
ari
ne
lit
ter
D1
1 In
tro
du
cti
on
of
en
erg
y
Renewable Energy Directive
Offshore Safety Directive
Port State Control Directive
The Convention for the Protection of the marine
environment of the North-East Atlantic (OSPAR)
The Barcelona Convention
The Helsinki Convention (HELCOM)
HELCOM Recommendation on permits for
monitoring and research activities
The Black Sea Convention
BACKGROUND DOCUMENT TO THE MSFD PERMITTING
WORKSHOP
15
Table 2 provides an overview of these relevant international regulatory instruments and the thematic
links to the GES descriptors. Thematic links are indicated in orange, but if the instrument has a main
focus on some GES descriptors they are indicated in red (as an example the implementation of the
Habitats Directive clearly has a main impact on D1 but it also affects a range of other GES descriptors,
albeit in an indirect way). In some cases question marks are included. D3 and D9 might not always be
covered by SEA and/or EIA as these are typically issues with direct socio-economic importance, while
SEA and EIA focus on the environmental impacts. However, sea food contamination is important for
human health (Annex II of SEA Directive; Art 3 of EIA Directive) while commercial fish is 1°/ part of
biodiversity (and a good source of data), and 2°/ it's a so-called 'ecosystem service' (marine food), and
ecosystem services might be part of SEA too. D10 is only indirectly covered by the WFD through
improvements to sewage treatment.
REVISED REPORT ON THE MSFD PERMITTING WORKSHOP
16
EU or international legislation Link to MSFD descriptors
D1
Bio
div
ers
ity
main
tain
ed
D2
No
n-i
nd
igen
ou
s
Sp
ec
ies
D3
C
om
me
rcia
l fi
sh
D4
Fo
od
we
bs
D5
Eu
tro
ph
icati
on
D6
Sea
flo
or
inte
gri
ty
D7
Hyd
rog
rap
hic
al
co
nd
itio
ns
D8
Co
nc
en
tra
tio
ns
of
co
nta
min
an
ts
D9
Co
nta
min
an
ts in
se
afo
od
D10
Mari
ne
lit
ter
D1
1 In
tro
du
cti
on
of
en
erg
y
SEA Directive ? ?
EIA Directive ? ?
UNECE Convention on Environmental Impact
Assessment in a Transboundary Context (Espoo
Convention)
? ?
Habitats Directive
Birds Directive
Convention on Biological Diversity 1992
Agreement on Straddling Fish Stocks and Highly
Migratory Fish Stocks 1995
Convention for the Conservation of Salmon in the
North Atlantic Ocean 1982
ACCOBAMS under the Convention on Migratory
Species (Bonn Convention)
ASCOBANS under the Convention on Migratory
Species (Bonn Convention)
Agreement on Wadden Sea Seals under the
Convention on Migratory Species (Bonn
Convention)
Maritime Spatial Planning Directive
Environmental Liability Directive
Water Framework Directive (WFD) ?
Directive on Environmental Quality Standards
('the Priority Substances Directive')
Directive concerning the management of bathing
water quality
Urban Waste Water Treatment Directive
Nitrates Directive
National Emission Ceilings Directive
Directive on industrial emissions
Directive on port reception facilities for ship-
generated waste and cargo residues
International Convention for the Prevention of
Pollution from Ships (MARPOL)
Annex I: Prevention of pollution by oil (entered into
force 2 October 1983)
BACKGROUND DOCUMENT TO THE MSFD PERMITTING
WORKSHOP
17
EU or international legislation Link to MSFD descriptors
D1
Bio
div
ers
ity
ma
inta
ined
D2
No
n-i
nd
ige
no
us
Sp
ecie
s
D3
C
om
merc
ial fi
sh
D4
Fo
od
web
s
D5
Eu
tro
ph
icati
on
D6
Se
a f
loo
r
inte
gri
ty
D7
Hy
dro
gra
ph
ical
co
nd
itio
ns
D8
Co
ncen
tra
tio
ns
of
co
nta
min
an
ts
D9
Co
nta
min
an
ts in
seafo
od
D10
Mari
ne
lit
ter
D11
In
tro
du
cti
on
of
en
erg
y
Annex II: Control of pollution by noxious liquid
substances (entered into force on 6 April 1987)
Annex III: Prevention of pollution by harmful
substances in packaged form (entered into force on
1 July 1992)
Annex IV: Prevention of pollution by sewage from
ships (entered into force on 27 September 2003)
Annex V: Prevention of pollution by garbage from
ships (entered into force 31 December 1988)
Annex VI: Prevention of Air Pollution from Ships
(entered into force on 19 May 2005)
Convention for the Prevention of Marine Pollution
by dumping of wastes and other matter - London
Convention and Protocol
International Maritime Organization's Guidelines
for the Control and Management of Ships'
Biofouling
International Convention for the Control and
Management of Ships Ballast Water and
Sediments (BWM)
Invasive Alien Species Regulation
Regulation concerning use of alien and locally
absent species in aquaculture
Renewable Energy Directive
Offshore Safety Directive
Port State Control Directive
The Convention for the Protection of the marine
environment of the North-East Atlantic (OSPAR)
The Barcelona Convention
The Helsinki Convention (HELCOM)
HELCOM Recommendation on permits for
monitoring and research activities
The Black Sea Convention
REVISED REPORT ON THE MSFD PERMITTING WORKSHOP
18
Table 2: Thematic links between the relevant international regulatory framework and MSFD GES descriptors (identified links are marked in orange; as some links are particularly important they are marked in red)
BACKGROUND DOCUMENT TO THE MSFD PERMITTING
WORKSHOP
19
The following observations can be made, in terms of relevance of other legal instruments for the
permitting procedures under the MSFD:
• Some of the investigated marine activities are not typically licensed. In particular, with regard to
maritime transport, the UN Convention on the Law of the Sea provides a ‘right of innocent
passage’ for all merchant and naval vessels through the territorial seas of a coastal state.
Maritime transport operates under a system of flag state and port state controls, and EU Member
States therefore have relatively little control over many vessels in their waters
• A wide variety of EU and international legal instruments deal with GES descriptors in a way that
their implementation contributes to achieving the MSFD environmental objectives.
• The GES descriptors for which international regulations appear most relevant in terms of
permitting and licencing procedures, are D1, D5, D8 and D10. In particular D1 and D8 are by far
most addressed by international regulations. There is indeed a lot of legislation on biodiversity
and ecosystems protection and on reduction of marine pollution with hazardous substances.
Other sources of pollution are covered well too (D5 and D10).
• There are less international regulatory instruments that appear to be of relevance for descriptors
D3, D6, D7 and D9, in terms of permitting and licencing. For D3 (commercial fish), this is
explained by the scope of this study, which excludes commercial fisheries. For D9 (contaminants
in seafood) this can be explained by the fact that it is indirectly affected by other legislation (less
pollution result in better performance of D9)6. D6 and D7 are only covered by more horizontal
types of regulation such as the legislative framework on environmental impact assessment and
the legislative framework within the Regional Sea Conventions.
• While some regulations will only be of relevance for one or two GES descriptors (e.g. the
regulatory framework on invasive alien species) other regulations are indeed more horizontal.
That’s why the legislative framework on environmental impact assessment and the legislative
framework within the Regional Sea Conventions might be relevant to provide information on all
GES descriptors for licencing and permitting procedures.
• Some regulations typically focus on specific marine activities such as the Offshore Safety
Directive (oil and gas sector), the Renewable Energy Directive (wind energy, tidal energy, F)
and the MARPOL Convention (shipping), while other regulations are sector-independent (e.g.
Birds and Habitats Directives). Sectors which seem to be covered to only a minor extent by
international legislation are marine recreational activities, carbon capture and storage (although
covered in one of the OSPAR MSFD Advice Documents), construction activities and land
reclamation, and dismantling activities.
• Land-based regulations mainly have a link with D1, D5, D8 and D10.
3.2.2 The role of the SEA and EIA Directives in achieving MSFD environmental targets
From the table above it is clear that both the SEA Directive and EIA Directive will be relevant for a wide
range of GES descriptors, if not all. The indicators under D3 and D9 might not always be dealt with in
environmental impact assessments, as these are typically issues with direct socio-economic
importance. However, sea food contamination is important for human health (Annex II of SEA Directive;
Art 3 EIA Directive) while commercial fish is firstly part of biodiversity (and a good source of data), and
secondly a so-called 'ecosystem service' (marine food), and ecosystem services might be part of EIA
and SEA too. As a consequence SEA and EIA can be considered as most suitable instruments to
include MSFD environmental targets in the planning and permitting process of marine activities.
6 Commission Regulation (EC) No 1881/2006 may be considered as 'relevant' for D9, however this paragraph only looks at potential relevance in terms of contribution and usefulness of other legislation for the licencing and permitting procedure, it is why it has not been listed here.
REVISED REPORT ON THE MSFD PERMITTING WORKSHOP
20
However, while in principle all marine activities with potential impacts on the marine environment should
be covered by SEA in the planning phase (at the level of sectorial planning or maritime spatial planning),
this is not the case for EIA in the project phase.
Table 3 links the human activities to the EIA annexes (Annex I: projects always subject to EIA; Annex
II: projects only subject to EIA after screening a number of criteria, specified in Annex III of EIA
Directive).
Table 3: Overview of Member States’ human activities in relation to the EIA Directive
Activity EIA Annex I EIA Annex II
Production of living resources and extraction of living resources
aquaculture (fish, shellfish and macro-algae)
1. AGRICULTURE, SILVICULTURE AND AQUACULTURE - (f) Intensive fish farming
seaweed farming
marine biotechnology
Extraction of non-living resources
exploration, exploitation and extraction of oil, gas or other non renewable energy resources
14. Extraction of petroleum and natural gas for commercial purposes where the amount extracted exceeds 500 tonnes/day in the case of petroleum and 500 000 cubic metres/day in the case of gas.
exploration, exploitation and extraction of marine aggregates (sand or gravel)
2. EXTRACTIVE INDUSTRY - (c) Extraction of minerals by marine or fluvial dredging;
sea-bed mining 2. EXTRACTIVE INDUSTRY - (c) Extraction of minerals by marine or fluvial dredging;
maintenance dredging
capital dredging
10. INFRASTRUCTURE PROJECTS - (k) Coastal work to combat erosion and maritime works capable of altering the coast through the construction, for example, of dykes, moles, jetties and other sea defense works, excluding the maintenance and reconstruction of such works;
desalination / water abstraction
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Activity EIA Annex I EIA Annex II
Renewable energy generation
production of energy from renewable sources, wind
3. ENERGY INDUSTRY - (i) Installations for the harnessing of wind power for energy production (wind farms);
production of energy from renewable sources, tidal
3. ENERGY INDUSTRY - (h) Installations for hydroelectric energy production;
production of energy from renewable sources, wave
3. ENERGY INDUSTRY - (h) Installations for hydroelectric energy production;
Transport
submarine cable and pipeline routes
16. Pipelines with a diameter of more than 800 mm and a length of more than 40 km:(a) for the transport of gas, oil, chemicals; (b) for the transport of carbon dioxide (CO2) streams for the purposes of geological storage, including associated booster stations
10. INFRASTRUCTURE PROJECTS - (i) Oil and gas pipeline installations and pipelines for the transport of CO2 streams for the purposes of geological storage (projects not included in Annex I);
maritime transport, merchant shipping
Offshore ship building
offshore ship building or dismantling 4. PRODUCTION AND PROCESSING OF METALS - (g) Shipyards;
Research and conservation
scientific and research activities
geophysical surveys (seismic, sonar)
activities for conservation purposes and ecological restoration infrastructure
Coastal tourism / recreation
watersports (not mechanically powered)
recreational boating
small-scale sea-based tourism
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Activity EIA Annex I EIA Annex II
recreational diving
cruise tourism / ships
Coastal and marine structure and infrastructure
construction in the marine environment
10. INFRASTRUCTURE PROJECTS - (k) Coastal work to combat erosion and maritime works capable of altering the coast through the construction, for example, of dykes, moles, jetties and other sea defence works, excluding the maintenance and reconstruction of such works;
port and marina infrastructure
10. INFRASTRUCTURE PROJECTS - (e) Construction of roads, harbours and port installations, including fishing harbours (projects not included in Annex I); // 12. TOURISM AND LEISURE - (b) Marinas;
offshore land reclamation
15. Dams and other installations designed for the holding back or permanent storage of water, where a new or additional amount of water held back or stored exceeds 10 million cubic metres
1. AGRICULTURE, SILVICULTURE AND AQUACULTURE - (g) Reclamation of land from the sea
dismantling/decommissioning and/or removal of (former) offshore infrastructure or object
Marine pollution and disposal of materials at sea
fly-tipping and unmanaged dumpsites in marine environment
managed dumping at sea (dumping sites included)
11. OTHER PROJECTS - (b) Installations for the disposal of waste (projects not included in Annex I);
deliberate introduction of marine species
disposal of dredged materials 11. OTHER PROJECTS - (d) Sludge-deposition sites;
disposal of other materials at sea
11. OTHER PROJECTS - (b) Installations for the disposal of waste (projects not included in Annex I);
Carbon sequestration
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Activity EIA Annex I EIA Annex II
Carbon capture storage (CCS)
22. Storage sites pursuant to Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009 on the geological storage of carbon dioxide // 23. Installations for the capture of CO2 streams for the purposes of geological storage pursuant to Directive 2009/31/EC from installations covered by this Annex, or where the total yearly capture of CO2 is 1,5 megatonnes or more.
3. ENERGY INDUSTRY - (j) Installations for the capture of CO2 streams for the purposes of geological storage pursuant to Directive 2009/31/EC from installations not covered by Annex I to this Directive. // 13. (b) Projects in Annex I, undertaken exclusively or mainly for the development and testing of new methods or products and not used for more than two years.
It is interesting to compare Table 3 with Table 1 (expected impacts) and Error! Reference source not
found. (importance of marine activities in Member States). Most activities with potentially important
environmental impacts are covered by the EIA Directive, but some are not, although their potential
impacts might be substantial. This is the case for submarine cables for electricity transport, and
dismantling/decommissioning and/or removal of (former) offshore infrastructure or objects. This last
category is not a frequently observed activity yet, but it might become important in the future. However,
the dismantling phase might be covered in some EIA studies at this moment, but the question remains
if the assessment will still be valid after 20 or 30 years. It must be emphasized however that some
marine activities with potentially important environmental impacts are not only not subject to EIA but
are even not licensed! This is the case for maritime transport and merchant shipping.
3.2.3 Habitats Directive
Marine biodiversity is addressed by a wide range of international regulatory instruments, either directly
or indirectly, which reflects the pressures it is subject to and the increasing recognition of the socio-
economic services provided by marine ecosystems (see also SOER 20157).
The Habitats Directive is a major instrument for contributing to achieving D1 environmental targets as
it affords protection to key marine habitats under Natura 2000 and to key marine species listed in annex
IV. In particular, this is done through the obligatory procedure to screen for and – if deemed necessary
– to prepare an appropriate assessment as part of the planning and permitting process for marine
activities (Art 6.3) if there is a risk of significant impacts to site integrity of a Natura 2000 site and take
the necessary mitigation measures (or take necessary compensation measures if such risk cannot be
avoided and Art. 6(4) conditions are met), as well as through the obligation to meet strict protection
requirements (Art. 12) for Annex IV marine species. However, Member States might face difficulties in
the field of scientific knowledge gaps especially offshore, dealing with uncertainty, cumulative impacts,
the difficulty to restore some damaged marine habitats, impacts on the network function of marine
protected areas designated as part of the Natura 2000 network8, etc. Also, there might be
inconsistencies in the way Member States deal with the screening of the need to carry out an
appropriate assessment.
3.2.4 Other key regulatory instruments
Other key regulatory instruments or groups of instruments are:
• The Maritime Spatial Planning Directive (MSP):
• covers all marine activities and particularly contributes in the field of ‘spatial control measures’,
as referred to in Annex VI of MSFD
7 EEA (2015). State of the Environment Report. 8 MPAs designated as part of the European Natura2000 network (and in UK referred to as European Marine Sites (EMS))
are Special Areas of Conservation (SACs) and Special Protection Areas (SPAs).
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• MSP comprises data collection, consultation with stakeholders, plan development and
subsequent stages of implementation, enforcement, evaluation and revision - in a similar way
to marine strategies under MSFD but it is not clear whether both processes will be linked or
progressed collaboratively.
• MSFD does not provide an operational framework to manage human activities but MSP does.
MSPs developed will be subject to SEA Directive. In a planned area MSP determines the mix
of drivers and their expected pressures
• MSP needs to be coherent across multiple spatial scales as GES must be achieved at regional
level which may be beyond an MSP area (Plan Area). Also needs to link with terrestrial
planning as a number of descriptors are related to land based sources (D5, D8, D9, D10, D11)
• The Environmental Liability Directive (ELD)
• The ELD has no direct link to planning and permitting of activities as it focuses on
environmental damage caused by activities which already received a license. Preventive
measures are not the subject of the ELD as these are dealt with by the wide range of EU
environmental legislation. However, what might be interesting in the framework of planning
and permitting marine activities is the lessons learned based on analysis of ELD cases in the
marine environment. These might be most useful to consider in the planning and permitting
process of new marine activities (or renewal of permits). However, as the transposition of ELD
to apply to MSFD (due to amendment on ELD Directive by Offshore Safety Directive in 2013)
only had to be completed by MS by July 2015, therefore it is unlikely there will be any cases
• The Water Framework Directive and its daughter directives
• The WFD applies in coastal (one nautical mile from the baseline from which territorial waters
are drawn) and transitional waters (estuaries) and therefore is highly relevant for permitting of
marine activities in coastal waters.
• The whole regulatory framework dealing with prevention, reducing and managing of pollution
caused by shipping (marine pollution by dumping of wastes and other matter, air pollution) (e.g.
MARPOL)
• The Invasive Alien Species Regulation and the Regulation concerning use of alien and locally
absent species in aquaculture
• Marine aquaculture is the most affected sector
• The Offshore Safety Directive and the Offshore Protocol under the Barcelona Convention are
particularly aiming to prevent, reduce and manage safety risks and associated environmental
damage caused by the marine oil and gas sector
• The Regional Seas Conventions
• These are most suitable political and administrative structures for supporting the
implementation of the MSFD by Member States
• Although each of them has its particular focus areas they address most or all GES descriptors
• Regarding permitting of marine activities they might provide support by publishing guidance.
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3.3 Outcome 3: Marine activities and the national regulatory framework
For those activities which are not, or are only partly, covered by international legislation Member States
have developed their own specific national legislative framework. The inventory has resulted in a
description of the authorisation procedures for each member state (with a reference to the legal act)
and the instruments used here. There is a wide range of types of ‘instruments’ for authorization of
marine activities throughout the Member States.. It is also clear that a lot of these instruments are based
on international regulation (or transposed in national legislation).
The analysis revealed that these instruments for authorization ensure either (1) input control, (2) output
control, (3) spatial and temporal distribution control, and can include (6) an economic incentive as well
as an important aspect of (7) stakeholder involvement and communication towards the public. Most
activities are regulated through the EIA procedure, but differences in procedural and technical
perspective are apparent when screening different Member States and having an effect on the
contribution of the procedure towards reaching GES.
The collected ‘practices’ and ‘instruments’ that are applied in the EU Member States very rarely link to
MSFD requirements or elements. As most instruments however touch upon one or more of the different
phases of the planning and permitting process, they provide at least potential opportunities to refer to
one or more of the key elements of the MSFD, either to make existing legislation more coherent and
efficient, either to make the MSFD more effective.
A number of examples have been identified on how Member states have integrated specific MSFD
elements in their national legislation related to planning and permitting; this integration is done either
from a legal basis, a procedural basis, a technical basis, of a combination of each of these.
Practices will be further developed in the best practices document that will be delivered to support MS
authorities including the cases elaborated on at the workshop as well as the results of the discussions.
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4 RECOMMENDATIONS AND POTENTIAL FOR FURTHER IMPROVEMENT
4.1 Recommendations
So far, a number of recommendations have been identified. These need to be completed based on the
outcomes of the workshop. The recommendations are structured as follows:
• Strengthening synergies between MSFD and other legislation
• Technical issues
• Procedural issues.
4.1.1 Strengthening synergies between MSFD and other legislation
Quite a number of opportunities are related to the SEA and EIA Directives, and the Habitats Directive:
• Member States could consider outcomes of MSFD Initial Assessment, as well as their GES and
environmental targets (quality standards) as part of the criteria to be assessed under Annex II of
the SEA Directive. They could recommend to do this (e.g. by preparing specific guidance on how
to apply the MSFD) or could make this obligatory by adapting existing legislation.
• Member States could use outcomes of MSFD Initial Assessment and outcomes of MSFD
Monitoring Programmes as part of the information for the environmental impact assessment
(either EIA or SEA) report. They could use their GES descriptors and indicators as well as
environmental targets as criteria for assessing significance of environmental impacts. They could
identify synergies between SEA obligations on monitoring and MSFD Monitoring Programme.
The SEA Directive obliges to carry out a post-monitoring programme for identified significant
impacts. Efficiency (time, budget) can be increased if this monitoring programme is aligned with
the MSFD monitoring programme (e.g. avoiding overlaps). This also works in the other way, i.e.
the MSFD monitoring programme should take into account the existing monitoring programmes
which in some Member States are already established as a result of SEA and EIA projects (e.g.
monitoring programme related to windfarms in Belgian part of the North Sea). Similar types of
synergies can be identified between SEA recommendations on mitigation measures and MSFD
Programme of Measures. Overall, they could use SEA outcomes as input information for updating
MSFD Initial Assessment.
• Member States could specify the criteria of Annex III of the EIA Directive (according to Annex III
the 'location of projects' is a key criterion, and it refers also to '(ii) coastal zones and the marine
environment' as one of the locations of particular importance) on the basis of the MSFD Initial
Assessment.
• Within the planning and permitting process for human activities at sea Member States should
ensure that a Natura 2000 screening is carried out (in order to determine the need for preparing
an Appropriate Assessment) for all human activities as identified under Task 1. This screening
should take account of the outcomes of the MSFD initial assessment and the MSFD monitoring
programme. An important issue in this context relates to cumulative impacts (e.g. several small
size operations for which on an individual basis no appropriate assessment is deemed useful,
but for which it becomes necessary if combined).
• Also appropriate assessments should consider the outcomes of MSFD Initial Assessment and
outcomes of MSFD Monitoring Programmes. The actual added value of these outcomes will
depend on scale (i.e. is the granularity of collected data at regional scale appropriate for use in
impact assessments at a local scale?) and time (i.e. are collected data not outdated?; in this
respect we need to take into account the timelines: the Initial Assessment is a punctual snapshot
(in 2012, 2018, etc.) whereas the Monitoring Programme is supposed to be an on-going process).
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Furthermore there are synergies with a whole range of other EU Directives:
• MSP comprises of data collection, consultation with stakeholders, plan development and
subsequent stages of implementation, enforcement, evaluation and revision - in a similar way to
marine strategies under MSFD but it is not clear whether both processes will be linked or
progressed collaboratively. This might be seen as an opportunity, and a recommendation.
• MSFD does not provide an operational framework to manage human activities but MSP does.
MSPs developed will be subject to the SEA Directive. In a planned area MSP determines the
maximum acceptable mix of drivers and their expected pressures, and therefore should be
applied as a most suitable decision-supporting instrument in the planning and permitting process
of human activities at sea.
• The ELD (Environmental Liability Directive) has no direct link to planning and permitting of
activities as it focuses on environmental damage caused by activities which already received a
license. Preventive measures are not the subject of the ELD as these are dealt with by the wide
range of EU environmental legislation. So far no marine ELD cases have been reported, but if
future marine ELD cases would appear the lessons learned might be interesting in the framework
of planning and permitting marine activities.
• Member States might consider to include measures related to planning and permitting in coastal
RBMPs (sometimes separate e.g. Belgium, sometimes integrated in the RBMPs of RBDs9 that
have an effluent in coastal water)
• Permitting of marine activities with emissions leading to eutrophication, as covered under the
NEC Directive, should take the respective NEC targets into account. Future revisions of the
NEC's with regard to eutrophication pollutants should take the state of the GES descriptor on
eutrophication (D5) into account.
• Although the Offshore Safety Directive only applies to the Oil & Gas sector, it might be useful to
investigate to what extent lessons learned (e.g. on good practices) can be applied to other marine
activities, even if it's on a voluntary basis
4.1.2 Technical issues
As Member States and in particular the permitting authorities still need to get familiar with how to
translate MSFD environmental targets into permit conditions for individual projects at sea, there is a
need on technical guidance. A number of guidance documents are available, but in some cases it is not
clear if these provide the right level of information for the permitting process:
• Most international conventions have published guidelines and recommendations, and sometimes
mandatory measures. These often contain useful material for being applied in the planning and
permitting process for marine activities, e.g.(only some examples for illustration):
• NASCO's (Convention for the Conservation of Salmon in the North Atlantic Ocean)
recommended measures during the permitting process for aquaculture projects.
• ACCOBAM's (Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean
Sea and contiguous Atlantic area, under the Bonn Convention) and ASCOBANS's
(Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas, under
Bonn Convention) obligations during permitting processes for projects with potential harmful
impacts on cetaceans. As cetacean species are protected species under the Habitats
Directive Member States should take the necessary measures anyway
• International Maritime Organization's Guidelines for the Control and Management of Ships'
Biofouling
• HELCOM Recommendation on permits for monitoring and research activities
• HELCOM Guidelines for Management of Dredged Material at Sea and HELCOM Reporting
Format for Management of Dredged Material at Sea
• The Regional Seas Conventions can play a major role in supporting the permit granting process
of marine activities by MS authorities. As an example the OSPAR MSFD Advice documents on
a number of GES descriptors mainly focus on target setting, collection of information and
monitoring. However, in addition to that it would be most useful to prepare guidelines (including
best practices) for authorities on how to deal with their GES and environmental targets in the
permitting process for marine human activities. The OSPAR MSFD Advice Document on
9 River Basin Management Plans (RBMP) prepared by River Basin Districts (RBD) according to the Water Framework Directive
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Underwater Noise10 provides some useful initial information on best practice and on remaining
gaps where additional research and adequate management is required: “The current UK
consents and licensing systems are considered to provide an appropriate framework within which
many of the marine developments likely to introduce energy into the marine environment can be
managed. These systems are not, however, able to manage noise inputs from shipping, one of
the larger contributors to low frequency, continuous marine sound and so efforts will need to
continue at an international level to address these impacts.”
• Useful recommendations can also be found in publications by sector organisations of marine
sectors, such as the dredging sector represented by CEDA. As an example, additional
information to the HELCOM Guidelines for Management of Dredged Material at Sea can be found
at CEDA’s website, in particular on beneficial uses of dredged material, including case studies,
PIANC (2009) provides technical information on the assessment of options for beneficial use and
recommendations on how to overcome constraints based on “lessons learned” from numerous
cases studies in different situations in various countries.
4.1.3 Procedural issues
Finally recommendations can be made at the governance level of the permitting process (how is this
process managed?). A number of recommendations are listed below. A main source of information
was the first seminar on Good practices in administrative simplification for the promotion of sustainable
aquaculture, which took place in November 2015. Also the guidance document on ‘Streamlining
environmental assessment procedures for energy infrastructure Projects of Common Interest (PCIs)11
provides useful recommendations, which are in principle applicable to other sectors (than the energy
sector) too.
• One-stop-shops and streamlining of licensing processes improve efficiencies and reduce costs;
• Development of sector strategies (e.g. Strategic Framework for Scottish Aquaculture) provide a
broader view on sustainable development of the sector and may facilitate the permitting process
of individual applications e.g. faster decisions on screening for EIA or Appropriate Assessment,
faster identification of permitting conditions, etc.);
• Cooperation, dialogue and sharing of information between the sector, the permitting authorities
and potential other stakeholders might also contribute to a more efficient permitting process;
• Sharing efforts between public and private actors (e.g. data collection, accessibility of data,
financing of monitoring) might reduce overall costs as well as costs for both public and private
actors
• Streamlining permitting conditions between Member States will contribute to achieving a level
playing field and will avoid additional burdens for offshore activities which cross jurisdictions
• Streamlining and swift coordination between different departments within one Member State (e.g.
one-stop-shop approach, ‘nested policy approach’).
10 http://www.ospar.org/work-areas/cross-cutting-issues/msfd/msfd-advice-manuals 11 http://ec.europa.eu/environment/eia/pdf/PCI_guidance.pdf
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4.2 Challenges
The workshop will deal with a number of remaining challenges offering potential for further
improvement. These are structured in a similar way as the above recommendations, and build further
on these recommendations.
4.2.1 Session 1: ‘Legal' challenges
This session deals with the way MSFD requirements are integrated in the national legislation on
permitting of marine activities. It covers topics such as:
• Is the current legislative framework sufficient, or are there gaps (e.g. related to specific activities
or to specific GES descriptors)?
• integration of MSFD elements (e.g. Initial Assessment) in permitting legislation
• potential overlaps (WFD, MSFD)
• different application thresholds of EIA Annex II activities between Member States
• permitting of non EIA listed activities
• the role of the MSP Directive for permitting
• the role of the Habitats Directive in the permitting process
• is there a need for guidance?
4.2.2 Session 2: ‘Technical’ challenges
This session deals with:
• How to transpose the GES environmental targets into individual permit conditions? Is this feasible
for all GES targets? Where do MS see the biggest difficulties?
• GES descriptors related information, or lack thereof, and the resulting consequences for the
permit granting process
• possible consequences for the permitting process of Member States' (sometimes uncertain)
determination of GES in 2012, as well as how an improved GES Decision may help resolve some
of these issues
• scale issues (e.g. are outcomes of MSFD Monitoring Programmes useful for assessing local
activities?)
• information for baseline assessment
• knowledge gaps and uncertainties and how this translates into the application of the
precautionary principle
• how to deal with cumulative impacts
• do existing databases (e.g. EMODNet) provide the right information for defining permit
conditions?
• Is there a need for guidance?
4.2.3 Session 3: ‘Procedural’ challenges
This session deals with the permitting procedures. Topics include:
• ways of sharing efforts between public and private actors (e.g. data collection, accessibility of
data, cost issues e.g. financing of monitoring)
• streamlining and ways of coordination between different Member States (differences in permitting
conditions between MS might cause additional burdens for offshore activities which cross
jurisdictions) or even different departments within one Member State (e.g. one-stop-shop
approach, ‘nested policy approach’)
• differences between big projects (handled by well-staffed central authorities) and small-scale
investments (often handled by understaffed authorities)
• is there a need for guidance?
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Annex - Table 4: Overview of Member States’ human activities in the marine environment (scope of
research)
Human Activity12 Definition and/or additional
information
Production of living resources and extraction of living resources
aquaculture (fish, shellfish and macro-algae) set-up and operation + predator control + disease control + stock enhancement methods
seaweed farming set-up and operations
marine biotechnology
* exploration, extraction and exploitation of genetic resources (marine organisms other than fish and shellfish) in order to develop new products * permitting when it comes to using genetic matefals from marine resources
Extraction of non-living resources
exploration, exploitation and extraction of oil, gas or other non renewable energy resources
* including thermal discharge (cooling water) * petrochemical refinery not included
exploration, exploitation and extraction of marine aggregates (sand or gravel)
sea-bed mining
* exploration, exploitation and extraction of minerals (other than sand or gravel) down to about 500 metres depth (includes tin, phosphates, iron ore, ....) * retrieval minerals that take place inside the jurisdictional waters of a sovereign state (not in interantional seabed - out of scope)
maintenance dredging beneficial use, relocation, placement or processing of dredge materials not included
capital dredging beneficial use, relocation, placement or processing of dredge materials not included
desalination / water abstraction installation/dismantling, pumping & discharge (hot) brine (+ wastewater),
Renewable energy generation
production of energy from renewable sources, wind * construction, operation and decommissioning * in shared seabasins or outside EEZ included
production of energy from renewable sources, tidal * construction, operation and decommissioning * in shared seabasins or outside EEZ included
production of energy from renewable sources, wave * construction, operation and decommissioning * in shared seabasins or outside EEZ included
Transport
submarine cable and pipeline routes * construction, operation and decommissioning * in shared seabasins included - interconnectors included
maritime transport, merchant shipping
* vessels that transports cargo or carry passengers for hire such s ferries * cruise ships, pleasure crafts and warships are excluded
Offshore ship building
offshore ship building or dismantling
12 The following human activities were not included in the scope of this study: professional fishery, military activities, beach tourism, coastal fortifications, and land-based activities with potential effect(s) on the marine environment (e.g. direct discharge of sewerage water, runoffs from polluted rivers and/or other inland waters).
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Human Activity12 Definition and/or additional
information
Research and conservation
scientific and research activities animal sanctuaries, marine archaeology, physical sampling, physico-chemical and biological sample removal
geophysical surveys (seismic, sonar)
activities for conservation purposes and ecological restoration infrastructure
* may be for soft or hard structures; * the activity requires area; how MS do regulate this
Coastal tourism / recreation
watersports (not mechanically powered) kite and wind surfing, swimming, kayaking,F
small-scale sea-based tourism Whale and dolphin watching, boat tours to seabird nesting sites, excursions to islands, etcF
recreational diving scuba; to underwater culural heritage; diving clubs special permits needed for group diving ?
cruise tourism / ships Task 2: IMO + PRF
Coastal and marine structure and infrastructure
construction in the marine environment
* may be for soft or hard structures; * e.g. dikes, artificial reeds, artificial sandbanks, artificial embarkments * beach enlargements excluded
port's and marina infrastructure
offshore land reclamation * not connected to the coast * specific for / only offshore (e.g. MALTA)
dismantling/decommissioning and/or removal of (former) offshore infrastructure or object
Marine pollution and disposal of materials at sea
fly-tipping and unmanaged dumpsites in marine environment
managed dumping at sea (dumping sites included)
deliberate introduction of marine species Regulations on invasive and alien species
disposal of dredged materials from capital or maintenance dredging
disposal of other materials at sea specific local problem(s)
Carbon sequestration
Carbon capture storage (CCS) storage, exploration, construction and operational
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Arcadis Belgium nv
Koningsstraat 80 Rue Royale
1000 Brussels
Belgium
02 505 75 00
www.arcadis.com
Arcadis Nederland B.V. , Hanzelaan 286, Zwolle T +31 (0)88 4261 261 www.arcadis.com
Arcadis Nederland B.V. - Registered office: Arnhem - Registered number: 09036504
MEETING TITLE
Workshop on MSFD and licensing procedures
DATE MEETING
8/4/2016
LOCATION
Brussels, EC
PARTICIPANTS
For participants, please refer to the participants list.
DATE MINUTES SENT
22/04/2016
ITEM WHO
Opening Session
1. The Commission gave an introduction to the project and the reason for this workshop.
The goal of the workshop is for Member States (hereafter MS) to learn from each other,
work together, collect useful practices and help in streamlining and cost saving.
Commission
2. Veronique welcomed all participants on behalf of ARCADIS. She presented the
objectives of the contract and the workshop. She also outlined what has been done to
date and what is planned for the coming months. She presented a slide with a map of
the MS that responded to the questionnaire (NOTE: The Netherlands have also
responded but this was not shown on the map - this will be amended prior to further
use). An overview of the main outcomes to date on activities in the marine environment,
links between marine activities and Good Environmental Status (hereafter GES), marine
activities and international regulatory frameworks, role of SEA and EIA Directives in
achieving MSFD objectives, role of Habitats Directive in achieving MSFD objectives,
other legal instruments, national regulatory frameworks and recommendations and
potential for further improvement were summarised. At the end there was time for
questions. Conclusions from the questions posed were as follows:
• Commercial fishing was not included as a human activity in this study, as agreed
from the beginning. It was agreed not to cover all human activities due to the limited
budget and also because fisheries is regulated through the Common Fisheries Policy
and quota system. Inclusion of fisheries would be a whole other study in itself.
• Land-based activities were left out for the same reasons as mentioned above (too
large a scope and regulated through a number of other regulatory instruments).
However, this topic will be kept in mind for possible follow-up projects, if any.
• To ensure the background document is as correct and up-to-date as possible, it will
be made available for comment (using ‘track-changes’).
• For this project it is not foreseen to go into a finer level of detail than EU level. Even
though conditions vary widely and can be quite different across different regions, the
overview will be focused on the EU level.
• There will be a chance for MS that did not complete the questionnaire to do so after
the workshop. As agreed during the workshop, it will be sent to both Germany and
France and should be returned within two weeks.
Veronique
Adriaenssens
3. Session One “Legal Challenges”
Johan Lammerant (ARCADIS) introduced the session on Legal Challenges.
Johan
Lammerant
4. Jan Brooke from PIANC and chair of the WFD Navigation Task Group began with a
presentation on authorization, permitting and licensing of navigation-related activities.
Please refer to the presentation for further information. Her main conclusions were:
• Shipping is not a licensed activity, so the presentation considered only infrastructure
relating to navigation and transport;
• Impacts from maintenance dredging are not usually significant even at a local level:
consider new infrastructure projects, capital dredging and disposal;
• Also need to consider scale issues: footprint of (effect of) the activity;
• Relevant activities related to navigation are already well regulated;
Jan Brooke
2 of 6
• Existing assessment regime (SEA, EIA and WFD plus Habitats Directive where
appropriate) adequately covers MSFD compliance for the vast majority of navigation
infrastructure projects ;
• No equivalent of WFD Article 4(7) or Habitats Directive Article 6(4) in MSFD;
• MSFD should not duplicate WFD framework in coastal water bodies – most
navigational and transport activities take place within coastal waters as defined by
WFD;
• MSFD should not be used to ‘fix’ poor implementation of other Directives;
• Cumulative effects from major projects raise some potentially difficult questions
which require careful attention.
A question followed the presentation on the difference between MSFD/WFD borders
around MS. Jan explained that the WFD waters have different source lines for each
MS, with some extending further out to sea than others.
5. Next, Bernard Vanheule from the International Association of Oil and Gas Producers
gave a presentation on Offshore Oil and Gas. Please refer to the PDF of the presentation
for further information. His main conclusions include:
• Reconnecting Europe with citizens: “To be truly effective, EU policy must be two
things: easily implemented and easily understood” (Commissioner Vella);
• Offshore O&G activities are highly regulated (38 pieces of legislation);
• All phases of an offshore hydrocarbon project are subject to separate authorisation
processes. These assess positive and negative impacts.
• Need to prioritise what marine activities cause the most change to the marine
environment: offshore O&G activities are not one of the main drivers of severe
changes (EEA 2015 State of the Environment report);
• If some existing Directives have not been implemented well, new legislation should
not be introduced but rather there is a need to look at the implementation of existing
legislation.
Bernard
Vanheule
6. Ann Dom, Deputy Director of Seas at Risk gave a presentation on MSFD and permitting.
Please refer to the PDF of the presentation for further information. Her main points
regarding what is needed going forward are the following:
• There is a solid legal framework already in place but much more focus needs to be
placed on the implementation of EU legislation and regional Conventions;
• The MPA network offshore is weak, poor implementation and management
measures;
• There is no mention of Integrated Coastal Management in the background document
and this helps to link practices at sea and on land;
• Public participation must trickle down from strategic to site level permitting.
• Ensure adaptive eco-system based management at all levels;
• Ensure financing for good environmental status – polluter pays;
• Monitor;
• Act with precaution;
• Ensure stronger land-sea links in assessments etc.;
• Make Good Environmental Status a shared priority!
Ann Dom
7. As a representative from Belgium, Steven Vandenborre from the Marine Environment
and Spatial Planning Unit gave a presentation on the Belgian experience of MSFD and
Marine Spatial Planning (MSP). Please refer to the PDF of the presentation for more
details.
A summary of some specific MSFD measures in the Belgian Maritime Spatial Plan:
• All activities:
• Subject to permit procedure, with the GES as reference.
• Fisheries:
• Four zones in MPA ‘Vlaamse Banken’ with fishing gear restrictions;
• Recreational fisheries limited in ‘Vlaamse Banken’;
• Measures to promote small-scale coastal fisheries.
• Aquaculture:
• Reduction of the level of eutrophication within the concession zone.
• Nature conservation:
• Nature as a precondition for other developments:
Steven
Vandenborre
3 of 6
a. Offshore renewable energy zone: artificial reefs;
b. Energy-storage: breeding grounds for black - back gulls and tern.
8. Representing France, Emilie Pleyber-Le Foll, Deputy Head of the office in charge of
national coordination related to MSFD Programme of Measures (POMs), ETs, ESA and
Pressure-impact analysis and Tristan Bataille, Environmental assessment Adviser of the
French Ministry of Environment, together gave a presentation on the Member States’
use of the MSFD in the planning and operation of human activities, including
authorization, permitting and licensing procedures, on the compatibility of authorizations
with MSFD and environmental targets. Please refer to the PDF for greater detail.
FR presented how the EIA reports include a requirement to "analyse connection with
marine strategy" and how this may become an analysis of 'compatibility". France
introduced a bill on recovering biodiversity, nature and landscapes, and this includes the
principle of compatibility with the MSFD environmental targets. They also explained how
they use targets as a proxy for GES and how they use these to make direct links to
authorisations (a project incompatible with the environmental targets should not be
authorised). They suggest further work to be done on how to use these environmental
targets and associated indicators as part of the permit, some initial suggestions are
included. The focus of further work according to FR is in relation to (1) more quantified
and territorialized targets, (2) the need to take into account cumulative effects, but
recognize there is a lack of knowledge on many aspects and that social and economic
concerns will need to be looked at when setting the targets.
Emilie
Pleyber-Le
Foll &
Tristan
Bataille
9. Representing Latvia, Baiba Zasa from the Ministry of Environmental Protection and
Regional Development of Latvia, gave a presentation on the regulatory framework for
sea use in Latvia. Please refer to the PDF of the presentation for more information. She
presented the following conclusions:
• MSFD does not set specific requirements for uses of the sea and does not explicitly
address marine activities. Existing legislation must therefore be considered and
observed.
• Basic regulations for sustainable sea use in Latvia dating from 2010 so it is relatively
recent and foresees permits / licences for 8 types of sea activities, for a maximum
issuance of 30 years. The licences / permits are suspended if they infringe the
conditions of their authorisation.
• Irrespective of intended activity, in Latvia the following applies:
• EIA, in particular when impact upon NATURA 2000;
• No sea use activities without a permit or licence.
• MSP – In Latvia used as management of human activities in the sea & spatial control
measure required by MSFD PoM; platform for MSFD integration into permitting &
planning; tool for achieving and maintaining GES.
Baiba Zasa
10. A discussion on the previous presentations. Highlights and conclusions:
• Clarification was sought on whether all activities in the Belgian MSP were subject to
permitting procedures that used GES as a reference. The Belgian participant
explained that the permitting procedures which exist were not established by MSP.
There are some links to GES but primarily they are derived from EIA and other
instruments. A definition of GES and elaboration of that concept has been put into
permitting procedures this year in terms of minimum levels to be achieved / avoided.
• Nature conservation measures are required for certain activities, but not all activities
have pre-condition like this. For construction of windfarms, for example, there is a
precondition to include nature conservation measures e.g. platform for seals to rest
on, etc.
• To makes GES concrete, a scientific job to evaluate policy is done by someone else.
The GES is already developed, UGMM has to put it in practice. It is currently in the
initial phase, though implementing it in practice is difficult, and it can evolve during
projects. Targets are explicitly mentioned as objectives of the MSP as well. The
whole procedure of designating zones, adopting management zones, etc. is now in
its final phase. GES counts as a reference but GES is not the only reference used.
ALL
4 of 6
• Environmental targets are not always quantitative. It is easier to put MSFD into
permits through quantitative environmental targets. The idea is to have compatibility
but there is a definite need for guidelines, a case by case basis is not sufficient.
• No need to reinvent the wheel. Take other legislation as examples. Copy good
practices from land areas.
11. Session 2 “Technical challenges”. Johan
Lammerant
12. Steven once again represented Belgium and gave a presentation on funding of offshore
monitoring in Belgium. The Belgian system on the monitoring in relation to an EIA
(including monitoring at EIA preparation stage as well as the surveillance monitoring
during operation) is quite unique in the sense that the economic operator pays a fee to
MUMM (Mathematical Unit of the North Sea) and the monitoring and surveillance is
actually carried out by this same unit. Please refer to the PDF of the presentation for
an overview. He incorporated the following aspects:
• Legal framework;
• Royal Decree EIA;
• Monitoring, surveillance, other funding.
• Different system for Sand and gravel extraction.
Steven
Vandenborre
13. Richard Cronin, Senior Adviser on Marine Planning from the Department of
Environment, Community & Local Government in Ireland, gave a presentation on the
challenge of introducing MSFD into consenting processes. Please refer to the PDF of
the presentation for further details. He made the following points on what is needed at
this time:
• Accept change as inevitable
• Work together
• Policy integration / real definition of “sustainable use”
• Use the right tool for the right job.
• Provide certainty
• Risk assessment
Richard
Cronin
14. Tristan Bataille represented the French Ministry and gave a presentation on cumulative
effects in environmental assessments. Please refer to the PDF of the presentation for
more information. He explained that in France a working group is working on a
developing a methodology to assess the cumulative impacts of a project. His key
messages were as follows:
• The priority is on establishing guidelines for projects: 2016/2017:
• Their idea is to produce guidelines with principles formulated by Committee with
representatives from other sectors e.g. transport, OSPAR, etc. but focus on site
level.
Tristan
Bataille
15. Dafydd Lloyd Jones from the Central Dredging Association and MarineSpace UK
presented on the effects of dredging at regional scale with case studies from the UK.
Please refer to the PDF of the presentation for greater detail. His key conclusions were
that:
• Regional Environmental Assessments for sand and gravel dredging in areas around
the UK were conducted by the industry. The idea was to look at cumulative dredging
effects up to 2030.
• The work distinguished between cumulative (just dredging sector) and in-
combination (dredging and other activities) effects.
• The scale of effects on Hydrographic Conditions (D7) and Seabed Integrity (D6) are
very small at regional and sub-regional scale;
• Seabed Integrity is being linked to biological assessments e.g. Herring spawning
assessments;
• Assessment of MSFD-type already encompassed in dredging EIAs;
• Using/adapting existing legislation/permitting procedures is preferable to introducing
new legislation ;
Dafydd Lloyd
Jones
5 of 6
• Performance/objective-based legislation should always be preferred to prescriptive
legislation as latter may be counterproductive and may hamper innovative
approaches (e.g. Building with Nature).
16. Bruna Campos from Birdlife gave a presentation on Licensing & Permitting in support of
Biodiversity. Please refer to the PDF of the presentation for more information. She
presented the following conclusions:
• Technical challenges can be overcome with good partnerships
• Gathering data and establishing databases are fundamental
• Establishing baselines/thresholds – can guide and support permitting & licensing
• To overcome challenges, you need “the will” to protect nature
• Recommendation is to apply an ecological assessment logic - find the correct scale,
sufficient data, proper survey methods in correct season, timeframe etc.
• Lessons learned from experiences in other countries were included in the
presentation.
Bruna
Campos
17. A discussion on the previous presentations. Highlights and conclusions:
• MUMM is the scientific institute that conducts EIAs for Belgium, from environmental
impact reports submitted by the applicant. These are paid for by the applicant
applying for the permit. Surveillance programme is conducted by MUMM at the cost
of applicant.
• CEDA: Cumulative impacts are easier to look at for a single sector. The herring study
presented also took other sectors into account.
• IOGP asked whether the developer provides funding for environmental
compensation or provides actual environmental compensation in Belgium. The
Belgian participant clarified that the answer is both depending on the activity and the
location.
• Belgium: Publicity of data: data is made public, or reports are published on MUMM
website.
• NAVI asked if Belgium considers externalities in its fee structure. The Belgian
representative explained that externalities are already in the fee structure and in that
way compensates for environmental damage. Pollution costs are internalised into
the framework of the permit holder to do the activity. The permit holder is responsible.
Legal transfer of responsibility, via framework the activity risks are minimized. In
cases where pollution or risks become a reality, the responsibility rests with the
permit holder.
ALL
18. Session 3: “Procedural challenges”. Johan
Lammerant
19. Andrew Brown from Marine Scotland in Europe gave a presentation on Ocean Energy
Development in Scottish waters – sustainability and competitiveness; how can we grow
a competitive ocean energy sector while respecting EU nature conservation
regulations? Please refer to the PDF of the presentation for greater detail. He presented
the Scottish approach ('phased approach') and concluded that:
• Procedures can be streamlined (one-stop shop, regional locational guidance and
sectoral guidance) but ultimatelyQ
• A risk based approach to assessments is necessary to establish a regulatory
process that ensures sustainability and maintains competitiveness.
• Horizon 2020 RiCORE project – reviewing risk based consenting approaches across
EU – will further finesse the Survey Deploy and Monitor (SDM) approach with aim of
establishing this as EU wide accepted method.
• EU Ocean Energy Forum Draft Strategic Roadmap projects – minimizing costs,
improve streamlining, cumulative impacts.
Andrew
Brown
20. Javier Ojedra from Apromar/FEAP gave a presentation on the MSFD and aquaculture.
Please refer to the PDF of the presentation for an overview. He presented the following
way forward:
• Massive red tape surround access to aquaculture sites and legal availability of sites
in EU
• All aquaculture in the EU currently is in coastal waters hence it is covered by the
WFD not MSFD
Javier Ojedra
6 of 6
• Guidance for all stakeholders is necessary (mainly for permitting authorities).
• Clear indications on how to implement the Precautionary Principle.
• Help stakeholders to make the link between the legal obligations imposed on them
by the MSFD
• How to balance the application of the legislation between pure conservation and
sustainable development.
• Legal advice for public administrations.
• Training of staff from permitting authorities.
• Streamline coordination between MS that share water bodies.
• Improve communication between different departments within one MS.
• Lengthen the permit time.
• Some places apply 'discounts' on permits if the aquaculture providers comply with
an environmental management system such as EMAS in the EU or ISO14000.
21. A discussion on the previous presentations ensued. Highlights and conclusions:
• Guidance on aquaculture already in relation to WFD and Natura 2000 sites –
suggestion for the same in relation to MSFD as there are plans to move aquaculture
installations further offshore in future.
• Relationship between regional conventions and MSFD: MS use regional conventions
to implement MSFD, particularly if aquaculture moves further offshore.
• Shellfish and finfish industry: WFD defines ‘coastal waters’. Aquaculture very rarely
operates beyond 1 nautical mile limit. It would be very expensive and complicated to
do so.
• The availability of an overall marine database is a basic issue, a lot is available in
reports and protocols. When it comes to economic data it has been discussed in
working groups as well (eg WG ESA).
• There is never sufficient data. Challenge is to take the existing data and use it to
make good decisions. Ireland has a marine atlas for publicizing data, open to
everybody. Scottish atlas is already available as well.
• Birdlife: a lot of data is not publicly available. Will it be made available? Hopefully
other MS will learn from the example of Ireland and Scotland.
• Guidelines are important to manage issues regarding the implementation of MSFD
and reaching GES.
• Marine Strategy Coordination Group will be consulted for follow-up of this project. All
presentations will be available online, as well as the background document in Word
format, for editing.
ALL
22. The European Commission gave a summary of the day and thanked everyone for their
active participation. The summary includes the following topics:
• If fully implemented, the legal framework in place should be able to provide enough
support, from strategic planning to project level. However, in practice it seems not
all aspects are fully covered by the implementation of the legal framework.
• The Habitat- and Bird Directives must play a part in the implementation of the
MSFD (and vice versa).
• It is important not to duplicate legislation implementation for different Directives
(WFD, MSFD).
• Making GES and targets quantitative is key if they are to be used as conditions for
licencing and permitting. Some MS have started tackling this.
• A practical challenge in implementation is spatial scale.
• For a technical approach, there is a role for RSC.
• Cumulative effects form a challenge. How to deal with already assessed projects?
Methodology is being developed in certain MS. Is the SEA directive sufficient?
• Data availability is important. There is a need to centralize and share data.
• Land-based legislation and approaches should be taken as an example for marine-
based projects and legislation implementation.
Commission
Encl. PDFs of presentations can be found online: https://circabc.europa.eu/w/browse/8ff2a0fa-fd6e-4f0d-
8abd-2aec3c06a5fb