Marine Issues in Renewable Energy

Offshore Renewable Technologies

The renewable technologies which can be deployed in the marine environment are wind turbines anchored to the sea bed and the more nascent technologies that harness tidal and wave power. The technology involved, generating capacity and location all determine the specific legal regime that will apply to a given project. As the legal regime relating to the marine environment is evolving rapidly, it is not possible categorically to state the precise list of legal requirements that will attach to any given project and project-specific legal advice will be required.

In summary, a marine renewable energy project will follow a consenting procedure not dissimilar to that for terrestrial projects: i.e. some form of pre-construction impact assessment, feasibility and approval process culminating in a consent to proceed with the development, usually subject to conditions, followed by a need to obtain various licenses and permits that regulate its construction, operation & maintenance as well as its decommissioning and site restoration.

Marine Planning and its interface with terrestrial planning regime

The UK-wide Marine and Coastal Access Act 2009 ("MCAA") and the Marine (Scotland) Act 2010 ("MSA") together introduce a marine planning system that extends 200 nautical miles into the seas around Scotland and is expected to give rise to the sorts of intricacies already found in the land-based planning system.

At first glance, the meeting point of the marine and terrestrial planning systems is straightforward and the Argyll(1) case has provided settled the law on the extent of Scotland's terrestrial planning system since 1976. The terrestrial planning system, based on the wording of the Town & Country Planning (Scotland) Act 1972, was held to extend from land down to the low water mark of the ordinary spring tides. Ordinary spring tides are the point in the two-week tidal cycle when the high tide is higher than average and low tide is lower than average. i.e. the terrestrial planning system extended down to the low point of the lowest tides.

However, the provisions of the MSA coupled with the wording of the Town & Country Planning (Scotland) Act 1997 ("1997 Act") make the Argyll case ripe for revisiting. Leaving aside fish farming, there is no reference in the 1997 Act to the low water mark, suggesting that the terrestrial planning system does not extend seaward below the high water mark of the ordinary spring tides. The MSA provides for the creation of a marine planning system in the Scottish marine area, which is the area of the sea out to 12 nautical miles (the MCAA extends this out to 200 nautical miles); and states that this area includes any area submerged at mean high water spring tide. In other words, marine planning will extend to the highest point of the tidal range, providing a neat fit with the terrestrial regime.

The issue of where the marine and terrestrial planning systems meet might seem like legal hair splitting, but depending upon the specifics of a given renewable energy project, it could well have a bearing on the planning aspects that apply to it. All offshore developments must make landfall in order to export their electricity and the laying of land cables and other equipment and/or the construction of onshore substations and the like will all be subject to terrestrial planning considerations. Consequently, a marine renewable energy project should not be viewed as being solely subject to marine related law.

(1) Argyll & Bute D.C. v Secretary of State for Scotland, 1976 S.C. 248

Administrative Responsibilities

Fortunately, under the devolution settlement in the Scotland Act 1998 and now the MCAA and MSA, the lines of demarcation are reasonably clear on whether the UK Government or the Scottish Ministers are responsible for a particular marine activity. The MCAA specifies certain marine functions over which the Scottish Ministers will have jurisdiction out to 200 nautical miles, including planning, renewable energy and nature conservation. Under the terms of the devolution settlement, the Scottish Ministers will also have exclusive jurisdiction over devolved matters within the Scottish marine area.

Marine Scotland

Marine Scotland has been created as a Directorate of the Scottish Government. It is expected to assume a number of the functions and responsibilities narrated in the MSA as well as functions previously carried out by other parts of the Scottish Government. The transfer of these functions is took place by bringing together the resources of the previous Scottish Government Marine Directive, the Fisheries Research Services and the Scottish Fisheries Agency on 1 April 2009 to establish Marine Scotland.

Hierarchy of Marine Planning

At the top of the marine planning tree will be the UK Marine Policy Statement (anticipated to be produced within two years of the MCAA being passed – approximately November 2011 although efforts are being made to produce it earlier). The Marine Policy Statement will provide a framework for decision making and will build upon the High Level Marine Objectives. Click here to view.

At the Scottish level, there must be a Scottish National Marine Plan and there is also discretionary provision in the MSA for the creation of Scottish Marine Regions and Scottish Marine Region Plans. Section 12 of the Act gives the Scottish Ministers discretion to delegate some of their functions in respect of Regional Marine Plans to the parties listed at section 12(2): a person nominated by the Scottish Ministers and one or more of (1) a public authority and (2) a person nominated by a public authority with an interest in the marine region to which the regional marine plan applies.

A high-level Marine Energy Action Plan (in respect of wave, tidal stream and tidal range technologies) was published by DECC in March 2010 and sets out the Westminster Government's long-term vision for those technologies. Click here to view.

Who has Planning functions?

The Scottish Ministers have Marine planning functions under the national marine plan to be developed under the MSA. Where Scottish Marine Regions are created, either the Scottish Ministers or parties (if any) to whom the Scottish Ministers delegate functions will exercise planning functions.

The Scotland River Basin Management Plan is not designed to be a planning document in the conventional sense. Instead, the River Basin Management Plan is more environmental (setting of objectives and standards) in its character and so it appears unlikely there will be legal overlap between terrestrial or marine planning and river basin management planning. However, given that river basin management plans can extend out to the 12 mile nautical limit of the UK territorial sea it might be that river basin management issues impact upon and inform marine planning issues and visa versa.

The functional dividing line in relation to planning functions is as follows:

• Terrestrial Planning – Local Authority and/or Scottish Ministers.
• Marine Planning – Scottish Ministers (national marine plan) or delegated parties (to be determined) (regional marine plans).
• River Basin Management Planning – Scottish Ministers and SEPA

Legally, the extent to which the Scottish Ministers or the UK Government exercise control depends on the devolved and reserved matters listed in the Scotland Act 1998 as well as those functions that have been executively devolved to the Scottish Ministers by the MCAA – marine planning, licensing and nature conservation. Click here to view the Scottish Government's 2009 guidance document to the Marine Bill.

Jurisdictional issues

Ownership of the territorial seabed and almost half of Scotland's foreshore is by the Crown. Consequently, the agreement of the Crown Estate to any form of development within the territorial sea (up to 12 nautical miles out to sea) is required. Before granting a lease of the seabed the Crown Estate will carry out a non-statutory consultation process. The consultation process includes advertising of the proposals and direct consultation with certain authorities and bodies starting with the Scottish Government's Energy Consents Unit. The lease may also require the consent of the Scottish Ministers under the licensing regime to be introduced under the MSA.

Consents required for marine renewable electricity generation

Initial Scottish Government consents required:

Electricity Act 1989 consent. The Scottish Government's website lists a number of consents that must be obtained in respect of Marine Development. Click here to view the Consents Legislation and here for the Regulatory Requirements.

Other legislation under which consent is required as at May 2010 (some of which will change as the MCAA and MSA enter into force) is :

1. The Coast Protection Act 1949 (still in force until replaced by the relevant sections of the MSA);
2. Offshore Marine Conservation (Natural Habitats, & C) Regulations 2007;
3. Conservation (Natural Habitats & c) Regulations 1994;
4. The Food & Environment Protection Act 1985 (still in force until replaced by the relevant sections of the MSA);
5. The Environmental Impact Assessment (Scotland) Regulations 1999 (SSI 1999/1); and
6. Marine Works (Environmental Impact Assessment) Regulations 2007.

The Scottish Government is working towards the new licensing regime under the MSA being in place in the spring of 2011. It is expected that the Ministers will lay a commencement order before summer this year. The order will commence the majority of the MSA as Parliament agrees it. However, the general licensing provisions will commence at the start of the next financial year (April 2011). This time table is not yet confirmed and so may vary.

The Coast Protection Act 1949 ("CPA") will be repealed in respect of Scotland by the MSA on a date yet to be appointed (as at May 2010) and will be replaced by the relevant provisions in MSA.

Part II (including Section 34) of the CPA relates to navigational safety and provides that, where obstruction or danger to navigation is caused or is likely to result, the prior written consent of the Scottish Ministers is required for certain operations:-

The Scottish Ministers will consult with a navigation expert to determine whether a proposal could cause an obstruction or danger to navigation.

Conservation (Natural Habitats, & C) Regulations 1994 ("1994 Regulations")

The Scottish Ministers, when considering a consent application under section 34 of CPA ) have a duty under regulation 48 of the 1994 Regulations in relation to certain sites, to make an assessment of the implications for the site where:

• the proposed operations are likely to have significant effect on the site either individually or in combination with other plans or projects: and
• the proposal outlined in the application is directly connected with or necessary to site management for conservation

Offshore Marine Conservation (Natural Habitats, & C) Regulations 2007 ("2007 Regulations")

The 2007 Regulations extend the EU Habitats and Wild Birds Directives beyond the UK's territorial waters (12 nautical miles) out to the continental shelf and the limits of British fisheries. Any competent authority with functions relevant to marine conservation must exercise its functions so as to secure compliance with the Habitats Directive and the Wild Birds Directive. Regulation 6 states that this requirement applies in particular to a consent application under section 34 of CPA and Part 2 of FEPA (see below), amongst others.

The Food & Environment Protection Act 1985 ("FEPA")

The licensing provisions of FEPA remain in force for the moment in relation to Scottish waters (they have been replaced in England by the MCAA) but will be replaced by the licensing aspects of the MSA as and when those licensing aspects enter into force. It is worth noting that the MSA provisions are similar to those contained in FEPA that they will eventually replace In the meantime FEPA requires that a licence be obtained from the Scottish Executive to deposit any articles or substances in the sea or under the seabed where the deposit is:-

• from a British vessel, British aircraft, British hovercraft or British marine structure;
• from a container floating in the sea if the deposit is controlled from a British Vessel, British aircraft, British hovercraft or British marine structure;
• within UK controlled waters either in the sea or under the seabed, from any vehicle, Bessel, aircraft, hovercraft, marine structure, container floating in the sea or structure on land constructed or adapted wholly or mainly for the purpose of depositing solids in the sea; or
• the loading of a vessel, aircraft, hovercraft, marine structure or vehicle in the United Kingdom or UK controlled waters with articles or substances for deposit anywhere in the sea or under the seabed.

In deciding whether to issue a licence the Scottish Government will have to consider the need to:-

• protect the marine environment and the living resources which it supports and human health;
• prevent interference with legitimate uses of the sea;
• minimise any nuisance, noise or odours arising from the disposal of waste; and
• to such other matters as the Scottish Executive considers relevant.

FEPA applies to the deposit or placement of articles and materials that it is proposed to use during construction projects – i.e. it is the disposal of the material and not the dredging of the material itself which is licensed. Accordingly, various environmental considerations should be taken into account. These include the potential hydrological effects, interference with other marine activities, the possibility of noise and drifting of materials and adverse implications for designated conservation areas.

The Schedule to the Deposits in the Sea (Exemptions) Order 1985 lists activities that are exempt from licensing and include the deposit of moorings or aids to navigation by or with the consent of a harbour authority.

Environmental Impact Assessment Regulations - The Environmental Impact Assessment (Scotland) Regulations 1999 (SSI 1999/1) Under the 1999 Regulations, an EIA, an assessment of the impact of the project on the environment, must be undertaken where any proposed development is to be carried out in a sensitive area or will extend to 0.1 hectare or more of the surface area of the marine waters, including any proposed structures or excavations. Under the 1999 Regulations, the Scottish Government is a statutory consultee along with SEPA, SNH, the water and sewerage authority or authorities for the area in which the development is to take place, any adjoining planning authority where the development is likely to affect land in their area and any district salmon fishery board in whose area the proposed development is to be situated.

Marine Works (Environmental Impact Assessment) Regulations 2007 - From 24 June 2007 Scottish Ministers must assess an application under the Marine Works (Environmental Impact Assessment) Regulations 2007 where the application relates to a regulated activity. Depending on the type and scale of the works the applicant may be required to produce an Environmental Statement in support of their application

From 1st April 2010 Marine Scotland – Licensing Operations Team ("MS-LOT") took over much of the licensing process that was previously carried out in a number of different areas within the Scottish Government. Now applications can be made to MS-LOT in combination for FEPA, CPA and section 36 Electricity Act 1989 consent. MS-LOT provides advice and assistance to applicants at all stages of the process.

Supplementary requirements

Aside from the above mentioned regulatory consents there will be a number of other agreements required in respect of a marine renewable energy project:

• Property documents – Leases and grants of rights to dredge by the Crown Estate of the seabed on which energy devices are stationed or which are dredged to make way for works as well as leases of any foreshore areas used;
• Construction Agreements such as building contract, consultant's appointments, collateral warranties, etc;
• Grid Connection Agreement;
• Power Purchase Agreements;
• Banking Agreements including Security documentation

External Links

• http://www.emec.org.uk/
• http://www.scotland.gov.uk/Topics/Business-Industry/Energy
• http://www.scotland.gov.uk/Topics/Business-Industry/Energy/Infrastructure/Energy-Consents/
• http://www.snh.org.uk/
• http://www.sepa.org.uk/
• http://www.scottishrenewables.com/
• MCAA Newsletter: http://www.defra.gov.uk/environment/marine/legislation/mcaa/key-docs.htm

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.