Environmental damage: Extending the Environmental Liability Directive into marine waters

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Environmental damage: Extending the

Environmental Liability Directive into marine waters

Consultation on amending the Environmental Liability (Prevention and Remediation)

Regulations (Northern Ireland) 2009 to transpose Article 38 of the Offshore Safety Directive 2013

July 2014

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Under Section 75 of the Northern Ireland Act 1998, the Department is required to have due regard for the need to ensure equality. Accordingly, a screening exercise was carried out to ascertain if the policies contained in this document require a full equality impact assessment. A copy of the assessment can be accessed at:

http://www.doeni.gov.uk/environmental_liability__prevention_and_remediation__amendme nt__regulations_2015_-_draft_of_240614.pdf

Additionally, a partial Regulatory Impact Assessment and rural screening were also carried out. These can be found in Section 3 and Annex 2 to this document.

Timing

The commencement date of this consultation is 1 July 2014 and it will close on 23 September 2014.

How to respond to this consultation Responses can be sent:

By email to: wdrt@doeni.gov.uk By post to: Waste Legislation Team

Department of the Environment Environmental Policy Division Goodwood House

44-58 May Street Town Parks Belfast BT1 4NN

By fax to: 028 9025 4732

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When responding, please state whether you are responding as an individual or representing the views of an organisation. If you are representing an organisation please make it clear which organisation you represent and, where applicable, how the views were assembled.

Enquiries

Enquiries regarding the content of this consultation paper, or requests for further copies, should be made to Paul Brown (e-mail: paul.brown@doeni.gov.uk; telephone: 028 9025 4921). Information and additional copies of the document can also be requested by text phone (028 9054 0642).

Confidentiality

The Department will publish a summary of the responses received on its website shortly after the consultation period has ended. It may also wish to publish individual responses to this consultation document. If you do not consent to this, you must clearly request that your response be treated confidentially. Any confidentiality disclaimer generated by your IT system in e-mail responses will not be treated as such a request.

You should also be aware that there may be circumstances in which the Department will be required to communicate information to third parties on request, in order to comply with its obligations under the Freedom of Information Act 2000 and the Environmental Information Regulations.

Geographical Coverage

The proposed legislative changes that are the subject of this consultation relate to Northern Ireland only.

Published by the Department of the Environment

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Introduction

The Department of the Environment is seeking comments on proposals to transpose Article 38 of Directive 2013/30/EU on Safety of Offshore Oil and Gas Operations⁽¹⁾, known as the Offshore Safety Directive (OSD), which came into force across the European Union on 12 June 2013. Member States are required to transpose the OSD into national legislation by 19 July 2015.

The OSD aims to reduce the potential for major accidents relating to offshore oil and gas activities and limit their impacts on the environment and coastal economies and further improve safety standards for offshore workers. It will apply to existing and future offshore installations/operations in waters under Member States’ jurisdictions.

The wider transposition of the OSD is being consulted upon on a UK-wide basis by the Department of Energy and Climate Change (DECC) and the Health and Safety Executive (HSE). However, Article 38 of OSD extends the scope of the Environmental Liability Directive (2004/35/EC)(ELD)⁽²⁾ into the marine environment in relation to waters, which requires the amendment of specific Northern Ireland legislation.

The Department of the Environment is, therefore, seeking comments on the draft Environmental Liability (Prevention and Remediation) (Amendment) Regulations (Northern Ireland) 2015, which will transpose Article 38 of the OSD by way of amendment to the Environmental Liability (Prevention and Remediation) Regulations (Northern Ireland) 2009 (the 2009 Regulations). Separate consultation exercises will be taking place on corresponding legislation in relation to marine waters off Scotland, England and Wales.

1 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:178:0066:0106:EN:PDF

2 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32004L0035:EN:HTML

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1. PURPOSE

1.1 The purpose of this document is to consult upon proposed changes to the Environmental Liability Regulations (Northern Ireland) 2009⁽³⁾.

2. BACKGROUND

2.1 The Environmental Liability Regulations (NI) 2009 transposed the requirements of the ELD in Northern Ireland. The ELD already applies to, amongst other things, damage affecting protected habitats and species out to the foreshore, sea bed and subsoil and their natural resources.

2.2 Article 38 of Directive 2013/30/EU (OSD) extends the offshore scope of the Environmental Liability Directive (ELD) specifically, by amending Article 2(1)(b) of the ELD to extend, via sub-paragraph (ii) below, the geographical scope of the ELD to include damage to marine waters, as defined in the Marine Strategy Framework Directive (MSFD) (2008/56/EC)⁽⁴⁾, thus:

“water damage”, which is any damage that significantly adversely affects:

(i) The ecological, chemical or quantitative status or the ecological potential, as defined in Directive 2000/60/EC⁽⁵⁾ (the Water Framework Directive (WFD)), of the waters concerned, with the exception of adverse effects where Article 4(7) of that Directive applies; or

(ii) The environmental status of the marine waters concerned, as defined in Directive 2008/56/EC, in so far as the practical aspects of the environmental status of the marine environment are not already addressed through Directive 2000/60/EC.”

2.3 Marine waters are defined in the MSFD as:

(a) Waters, the seabed and subsoil on the seaward side of the baseline from which the extent of territorial waters is measured extending to the outmost reach of the area where a Member State has and/or exercises jurisdictional rights, in accordance with the Unclos⁽⁶⁾, with the exception of waters adjacent to the countries and territories mentioned in Annex II to the Treaty and the French Overseas Departments and Collectivities; and

(b) Coastal waters as defined by Directive 2000/60/EC, their seabed and subsoil, in so far as the particular aspects of the environmental status of the marine environment are not already addressed through that Directive or other Community legislation.

2.4 What this means in effect, is that, in relation to water damage, the current geographical limit as set out in the 2009 Regulations will be extended beyond the coastal strip (up to one nautical mile seaward from the baseline in Northern Ireland)

3 SR 2009 No. 252

4 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:164:0019:0040:EN:PDF

5 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32004L0035:EN:HTML

6 http://www.un.org/depts/los/convention_agreements/texts/unclos/closindx.htm

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to cover all waters up to 12 nautical miles seaward from the baseline in Northern Ireland.

2.4 Similarly, damage to a protected species or natural habitats will include all waters and the seabed up to 12 nautical miles from the baseline in Northern Ireland.

3. IMPACT

3.1 Work from the original Impact Assessment (IA) when transposing the ELD suggested the following activities have the potential to cause damage in the marine environment: fisheries, shipping, activities releasing contaminants on land, contaminants from the oil and gas industries, mariculture, litter, disturbance, engineering operations and dredging and dumping.

3.2 The ELD only requires action where a business or other operator has caused – or is imminently about to cause - significant environmental damage. Evidence to date suggests this happens very rarely. In the five years between 2009 and 2014, there have been only three cases of water damage on land or in coastal waters around the UK. Across the EU from 2007 to 2014 there have been 389 cases of water damage⁷. By comparison, there are likely to be fewer applicable cases on average in the area covered by this proposed legislation, between 1 and 12 nautical miles (200 nautical miles in the case of the UK Member State), because of reduced levels of economic activity there and owing to increased difficulty to monitor, detect and enforce offshore damage. This assessment is strengthened by the fact that no case of damage to species and habitats in the marine environment has yet fallen under the ELD in any country in the EU, which suggests that damage to water beyond one nautical mile might happen once in 10 years or less across the UK. More detail on this is contained with the DECC/HSE IA covering the transposition of the OSD.

3.3 If and where such damage does arise, there are likely to be costs under existing arrangements to address the damage, depending on the nature of damage caused.

Analysis undertaken for the original ELD Impact Assessment (IA) suggested that opportunities to directly restore damage will be limited in the marine environment and that the measures required will therefore largely be to compensate for the damage. There may be limited opportunities to take such measures in the marine environment so these may sometimes be taken on land. The main costs are, therefore, likely to relate to paying for environmental improvements.

3.4 Remediation requirements under the ELD are triggered by a measurable adverse change. For waters subject to the WFD this change must be sufficient to lower the status of the water body as defined in the WFD. The concept of good environmental status contained within the MSFD is wider than that in the WFD and includes descriptors relating to the introduction of energy and underwater noise⁽⁸⁾. Adverse change in the status of a WFD water body⁽⁹⁾ can be more readily assessed

7 This figure masks a wide variation reported by Member States, three of which accounted for 80% of the incidents.

The very great majority reported fewer than a dozen, with 14 reporting zero or one case.

8 The 11 MSFD descriptors are: biological diversity; non-indigenous species; commercially exploited fish and shellfish;

food webs; human-induced eutrophication; sea floor; hydrographical conditions; contaminants; contaminants in fish and other seafood; marine litter; and the introduction of energy (including underwater noise)

9 The relevant UK water bodies listed in the MSFD comprise the Greater North Sea, including the Kattegat and the English Channel; and the Celtic Seas

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than measuring changes to the indicators at the level of sub-regional sea areas but that damage would have to be very significant to trigger action under the ELD.

3.5 According to the DECC/HSE IA, the compensatory measures for one case of water damage on land are estimated to have cost less than £200k (from the damage assessment for the case). The costs of cases across the EU range from £2440 to

£2.07 million (for all types of cases, not just water damage) although this is likely to include some costs that would have been incurred irrespective of the ELD.

3.6 During the course of its consultation Defra intends to carry out further investigation and discussions with stakeholders to consider:-

 the likelihood of potential damage caused by different activities affecting environmental status as defined under the MSFD;

 the potential for “catastrophic” cases of damage with much larger costs;

 whether the actions to pay for environmental improvements to compensate for offshore water damage are likely to be within the range presented;

 the scale of benefits from the improvement works required;

 whether businesses and other operators will need to take time to familiarise themselves with the changes; and

 whether businesses or operators will take anticipatory action to reduce their liabilities.

The Department will continue to liaise with Defra and will take into account any findings in relation to the issues listed, however, the Department would welcome any comments specific to the above points.

Question 1. What views, if any, do you have on the likelihood of potential damage caused by different activities affecting environmental status as defined under the MSFD?

Question 2. Do you agree with the proposal in paragraph 3.4 that, in most circumstances, the most effective compensatory measures in the marine environment will be to require environmental improvements on affecting land?

Please explain your answer.

Question 3. Do you believe that these proposals provide adequate protection for marine waters? If not, please explain your answer.

4. LEGISLATIVE PROPOSALS

4.1 The Environmental Liability (Prevention and Remediation) (Amendment) Regulations (Northern Ireland) 2015 propose to amend the Environmental Liability (Prevention and Remediation) Regulations (Northern Ireland) 2009 as follows:-

 Regulation 2 will be amended to extend the Environmental Liability (Prevention and Remediation) Regulations 2009 to marine waters in accordance with the table below:-

Type of damage Area in which these Regulations apply

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Damage to surface water or groundwater Northern Ireland⁽¹⁰⁾ and all water up to one nautical mile seaward from the baseline in Northern Ireland.

Damage to marine waters All waters up to 1 nautical mile seaward from the baseline in Northern Ireland so far as not already addressed as damage to surface water or groundwater.

All water up to 12 nautical miles of the baseline in Northern Ireland.

Damage in an Area of Special Scientific Interest

Northern Ireland Damage to a protected species or natural

habitats

Northern Ireland

The seabed out to 12 nautical miles.

Damage to land Northern Ireland

 Regulation 3 will be amended to clarify what is meant by environmental damage to marine waters, as follows:-

“Environmental damage to marine waters means damage to marine waters classified as such pursuant to Directive 2008/56/EC of the European Parliament and of the Council establishing a framework for community action in the field of marine environmental policy, such that their environmental status is significantly adversely affected in accordance with Directive 2008/56/EC of the European Parliament and of the Council.”

Question 4. Do you believe the proposed Regulations effectively transpose the requirements of Article 38 of the OSD? If necessary, please explain your answer.

10 For the purposes of these Regulations, Northern Ireland is as defined in section 98 of the Northern Ireland Act 1998

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Annex 1

Draft Amendment Regulations

S T A T U T O R Y R U L E S O F N O R T H E R N I R E L A N D

2015 No.

ENVIRONMENTAL PROTECTION

The Environmental Liability (Prevention and Remediation) (Amendment) Regulations (Northern Ireland) 2015

Made - - - - ...2015

Coming into operation - ...2015

The Department of the Environment, being a Department designated for the purposes of section 2(2) of the European Communities Act 1972(¹¹) in relation to measures relating to the environment, acting in exercise of the powers conferred upon it by that section, makes the following Regulations.

Citation, commencement and interpretation

1.—(1) These Regulations may be cited as the Environmental Liability (Prevention and Remediation) (Amendment) Regulations (Northern Ireland) 2015 and shall come into operation on ...2015.

(2) The Interpretation Act (Northern Ireland) 1954(¹²) applies to these Regulations as it applies to an Act of the Assembly.

Amendment of the Environmental Liability (Prevention and Remediation) Regulations (Northern Ireland) 2009

2.—(1) The Environmental Liability (Prevention and Remediation) Regulations (Northern Ireland) 2009(¹³) are amended in accordance with paragraphs (2) to (4)—

(2) After regulation 2(3) insert—

“Extent

2A. These Regulations extend to the areas specified in the following table—

Type of damage Area in which these Regulations apply

Damage to surface water or groundwater Northern Ireland(¹⁴) and all water up to one nautical mile seaward from the baseline in Northern Ireland.

Damage to marine waters All waters up to 1 nautical mile seaward from the baseline in Northern Ireland so far as not already addressed as damage to surface water

(¹¹) 1972 c.68 (¹²) 1954 c.33 (N.I.) (¹³) S.R. 2009 No. 252

(¹⁴) For the purposes of these Regulations Northern Ireland is as defined in section 98 of the Northern Ireland Act 1998

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or groundwater.

All water up to 12 nautical miles of the baseline in Northern Ireland.

Damage in an Area of Special Scientific Interest

Northern Ireland Damage to a protected species or natural

habitats

Northern Ireland

The seabed out to 12 nautical miles.

Damage to land Northern Ireland

“

(3) For regulation 3(1) substitute—

“3.—(1) Subject to regulations 5, 6 and 7, these Regulations apply to environmental damage to — (a) Protected species or natural habitats, or an area of special scientific interest;

(b) Surface water or groundwater;

(c) Marine waters; or (d) Land.”

(4) After regulation 3(4) insert—

“(4A) Environmental damage to marine waters means damage to marine waters classified as such pursuant to Directive 2008/56/EC of the European Parliament and of the Council establishing a framework for community action in the field of marine environmental policy, such that their environmental status is significantly adversely affected in accordance with Directive 2008/56/EC of the European Parliament and of the Council.”

Sealed with the Official Seal of the Department of the Environment on ...2015.

Wesley Shannon A senior officer of the Department of the Environment

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EXPLANATORY NOTE (This note is not part of the Regulations)

These Regulations amend regulations 2 and 3 of the Environmental Liability Regulations (Northern Ireland) 2009 to include damage to marine waters, as defined in the Marine Strategy Framework Directive within the scope of environmental liability.

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Annex 2 Rural Screening

Rural

Screening Questions

Response to

Screening Questions

Full Impact Assessment Required

Justification/Key Issues and groups to focus on

Yes No Yes No

1. Does the policy apply in rural areas and communities?

If NO: set out the reasons why

If YES:

√ √

a. Does the policy have the potential to have a negative impact on rural areas and communities?

√ √

b. Does the policy have the potential to have a positive impact on rural areas and communities?

√ √

CONCLUSION

√

When Is a Rural Impact Assessment Required?

If the answer to question 1 is yes, consideration should be given to undertaking a rural impact assessment. The following guidance applies:

If the answer to a. is yes, a rural impact assessment must be undertaken and the checklist completed.

If the answer to b is yes, the policy document should include a reference to how and why the impact will be positive.

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Annex 3

List of Consultees

NI Statutory Bodies NI Political Parties NI District Councils

UK chamber of Shipping (1) Civil Aviation Authority Quay Marinas Ltd

British Association for Shooting and Conservation (NI) (1) Friends of Larne Lough (1)

Anglo Northern Irish Fish Producers Organisation. (2) Maritime & Coastguard Agency (1) No change Strangford Lough and Lecale Partnership The Royal Yachting Association (no change) Newcastle harbour Regeneration Association Belfast Harbour Commissioners.

Irish Salt Mining.

Maritime & Coastguard Agency (2) No change Anthony D Bates Partnership LLP

Harland and Wolff Heavy Industries Ltd.

Utility regulator

Irish Surfing Association.

The Crown Estate NI

Causeway Coast & Glens Heritage Trust RWE NPower

Action Renewables

British gas, Head of Environment (Staines) Warrenpoint Harbour Authority

Northern Ireland Renewables Industry Group Irish Wind Energy Association.

B9 Energy Offshore Developments Ltd First Flight Wind

Queens University Belfast Irish Marine Federation Virgin Media

Scottish Power Renewables Marine Current Turbines

Centre for Marine Archaeology, University of Ulster RenewableUK

Marine Conservation Northern Ireland Ocean Youth Trust Ireland

Environmental damage: Extending the Environmental Liability Directive into marine waters