10 November 2016 14.00 11 November 2016 09.30 European ... · MSCG_19-2016-04 Marine Strategy...

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

OPERATION OF HUMAN ACTIVITEIS INCLUDING AUTHORISATION,

PERMITTING AND LICENSING PROCEDURES

2

Contacts

VERONIQUE ADRIAENSSENS Project Manager Environment - International Development

M +32474298424

E [email protected]

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


2.3.4.2 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


2.3.5.2 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


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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10 disposal of dredged materials


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;


17 scientific and research activities

18 geophysical surveys (seismic, sonar)

19 activities for conservation purposes and ecological restoration infrastructure


20 Water sports (not mechanically powered)

21 recreational boating Marinas

22 small-scale sea-based tourism Marinas




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23 recreational diving

24 cruise tourism / ships

Construction of roads, harbours and port installations, including fishing harbours (projects not included in Annex I)


25 construction in the marine environment


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


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





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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).

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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

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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




20

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No Human


M

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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




21

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No Human


M

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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




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




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


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




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




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




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




28

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




29

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




30

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



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


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


11e

disposal of other materials at sea * D4 not considered as we can assume that it will not be allowed in sensitive areas


12 Carbon sequestration 12a Carbon capture storage (CCS)




31

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




32

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)




33

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




34

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


D I D NA


NA NA NA NA




35

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


NA NA NA D

Coastal tourism and recreation

I I I D

Coastal and marine structure and Infrastructure

NA NA NA NA


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.




36

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?




37

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.




38

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




39

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




41

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.




42

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




43


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)




44


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.




45

• 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




62

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




63

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




65

ANNEXES




67

Annex 1: National factsheets




69

Annex 2: questionnaire model




71

Annex 3: Overview of EU legislation and other inter national legislation/conventions/etc




73

Annex 4: Links between relevant international legis lative frameworks, human activities and the MSFD




75

Annex 5: Workshop background document




77

Annex 6: Workshop minutes




78

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

REVISED REPORT ON THE MSFD PERMITTING WORKSHOP

2

Contacts

JOHAN LAMMERANT

VERONIQUE ADRIAENSSENS [email protected]

[email protected]

T +32 (0)2 5057522

M +32 (0)474 29 84 24

Koningsstraat 80 Rue

Royale

1000 Brussels

Belgium

BACKGROUND DOCUMENT TO THE MSFD PERMITTING

WORKSHOP

3

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


4

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.


WORKSHOP

5

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).


6

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


WORKSHOP

7

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/.


12.25 – 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’).


14.40 – 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


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


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


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


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



2e

capital dredging * D4 not included as we can assume that dredging in sensitive areas will not be allowed



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


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


9d dismantling/decommissioning and/or removal of (former)

offshore infrastructure or objects


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


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


11e

disposal of other materials at sea * D4 not considered as we can assume that it will not be allowed in sensitive areas


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)


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


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.


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


Agreement on Wadden Sea Seals under the

Convention on Migratory Species (Bonn

Convention)




Directive on Environmental Quality Standards

('the Priority Substances Directive')

Directive concerning the management of bathing

water quality


Nitrates Directive



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)


Regulation concerning use of alien and locally

absent species in aquaculture


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




The Convention for the Protection of the marine

environment of the North-East Atlantic (OSPAR)



HELCOM Recommendation on permits for

monitoring and research activities



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.


16


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


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


ASCOBANS under the Convention on Migratory


Agreement on Wadden Sea Seals under the

Convention on Migratory Species (Bonn

Convention)




Directive on Environmental Quality Standards

('the Priority Substances Directive')

Directive concerning the management of bathing

water quality


Nitrates Directive



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)


WORKSHOP

17


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)


Regulation concerning use of alien and locally





The Convention for the Protection of the marine

environment of the North-East Atlantic (OSPAR)



HELCOM Recommendation on permits for

monitoring and research activities



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)


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.


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



aquaculture (fish, shellfish and macro-algae)

1. AGRICULTURE, SILVICULTURE AND AQUACULTURE - (f) Intensive fish farming

seaweed farming




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.


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


WORKSHOP

21



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);



offshore ship building or dismantling 4. PRODUCTION AND PROCESSING OF METALS - (g) Shipyards;


scientific and research activities




watersports (not mechanically powered)

recreational boating

small-scale sea-based tourism


22


recreational diving

cruise tourism / ships




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






deliberate introduction of marine species

disposal of dredged materials 11. OTHER PROJECTS - (d) Sludge-deposition sites;

disposal of other materials at sea




WORKSHOP

23


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).


24

• 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


• 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.


WORKSHOP

25

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.


WORKSHOP

27

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).


28

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


WORKSHOP

29

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


30

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?


WORKSHOP

31

Annex - Table 4: Overview of Member States’ human activities in the marine environment (scope of

research)

Human Activity12 Definition and/or additional

information


aquaculture (fish, shellfish and macro-algae) set-up and operation + predator control + disease control + stock enhancement methods

seaweed farming set-up and operations


* 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



* including thermal discharge (cooling water) * petrochemical refinery not included


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),


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


* vessels that transports cargo or carry passengers for hire such s ferries * cruise ships, pleasure crafts and warships are excluded


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).


32

Human Activity12 Definition and/or additional

information


scientific and research activities animal sanctuaries, marine archaeology, physical sampling, physico-chemical and biological sample removal



* may be for soft or hard structures; * the activity requires area; how MS do regulate this


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



* 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)





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 capture storage (CCS) storage, exploration, construction and operational


WORKSHOP

33

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

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