renewableuk in partnership with the crown estate: article

RenewableUK in partnership with The Crown Estate: Article 6(4) Workshop

Tuesday 21st January 2020

Lessons learnt: nature,

extent and delivery of

compensatory

measures

Lessons Learnt | January 2020

Bathside Bay Port Development HRO

Objectives:

◼ Compensatory measures should:

✓ address in comparable proportions the habitats and

species negatively affected

✓ provide functions comparable to those which justified the

selection criteria for the European site

✓ be within the same bio-geographical region (although

distance is not seen to be an obstacle)

◼ Requirement to create a range of habitats to support an

equivalent assemblage of feeding and roosting waterfowl

(and key species)

◼ Agreed through early engagement with key stakeholders

◼ Secured through s106, CMMA and Deeds


Bathside Bay Port Development HROInformal DEFRA compensation parameters (2000) were used to define requirements:

→ Location

◼ Hierarchy of preference = ideally local (estuary mouth)

◼ Further away = higher ratio of new for old

→ Habitat type (and conditions)

◼ Replacing the qualifying habitats (and species)

◼ Replicating critical features (e.g. lack of disturbance)

→ Sustainability

◼ An assured life

→ Timing

◼ Ideally compensation before loss

◼ Otherwise scaled to account for additional impact

◼ Delivery ≠ functionality

→ Uncertainty

◼ Ability to support qualifying features

◼ Greater uncertainty = higher ratio of new for old


✓ Location

◼ Within 2kms, at the estuary mouth

✓ Habitat type (and conditions)

◼ Replacing qualifying habitats, providing for the relevant species

◼ Limiting disturbance

✓ Sustainability

◼ Habitat mosaic

◼ To qualify for SPA inclusion within 15 years

◼ Indefinite support

✓ Timing

◼ To be implemented at the time damage occurs

◼ Reclamation to breach, at worst one winter (with severe weather mitigation)

✓ Uncertainty

◼ Strong evidence from elsewhere

◼ Monitoring commitments, overseen

Bathside Bay HRO - Compensation

Mudflat – 70 to 80ha

Mudflat/saltmarsh transition – 5 to 15ha

Saltmarsh – 15 to 25 ha

Sand/shingle - 5ha

Wave breaks

Borrow dykes

Terrestrial - 12ha

Little Oakley, Hamford Water: coastal breach, topsoil stripping, seawalls and borrow dykes, creek

deepening/widening, internal wave breaks, footpath diversion, mud surcharging, sand/shingle placement


Cardiff Tidal Lagoon draft DCO

Background

◼ Area: 72km2; Bund wall: 20.5km; 108 Turbines; 24

Sluices; intertidal area: 1400ha; subtidal area: x 3

much of which unaffected

◼ Ecosystem Enhancement Programme Net gain

◼ 2000ha of intertidal habitat creation proposed, based on a

2:1 ratio (16000ha shortlisted)

◼ Subtidal measures also required

◼ Location hierarchy and delivery programme

◼ Compensation to be included in the DCO, or planning

permission to be sought in parallel, to ensure

deliverability

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Subtidal habitat creation - principles

◼ Reduction in the intertidal area, low intertidal, will equate directly to a gain of

shallow subtidal

◼ Assessment of the loss of subtidal should focus on the ‘value of the habitat’ to

be lost and the contribution this makes to the integrity of the SAC

◼ EC Guidance (2007) on compensatory measures includes:

- (i) habitat re-creation;

- (ii) habitat restoration or enhancement in existing sites;

- (iii) species recovery and (iv) reinforcement;

- (v) reserve creation (including restrictions on the activities);

- (vi) incentives for certain economic activities; and

- (vii) reduction of threats (e.g. wildfowling, fishing, poor water quality).



◼ Loss of 3125ha of habitat

1110 ‘mitigated’ through

the establishment of a

31250ha marine reserve

within the SPA

◼ Including measures to

reduce seabed

disturbance, such as

fisheries restrictions,

creating better conditions

for foraging birds


Subtidal habitat creation – Mainport Rotterdam


a. Impact avoidance

b. As far as reasonable, enhance the lagoon bund walls for nature

c. Based on an understanding of the extent and quality of the subtidal resource,

identifying opportunities to enhance this through mechanisms such as the

introduction of reef rolls and artificial or biogenic reefs

d. Species reinforcement; for example, seagrass restoration and translocation

e. If necessary, providing resource support for reserve creation, including

implementing restrictions on the activities that can be undertaken and the

reduction of other threats


TLP Strategy


Wylfa Newydd New Nuclear DCO

Background

◼ Shadow HRA concluded no AEOI on breeding tern species of the Anglesey Terns SPA.

◼ The SNCB advised the Examining Authority that AEOI could not be excluded.

◼ On a precautionary basis, Horizon prepared information on ‘no alternative solutions’ and ‘IROPI’ and

investigated measures to deliver appropriate compensation.

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Principles◼ Primary focus – Sandwich tern – Secondary focus – enhancements for common and Arctic tern.

◼ Sites must be ‘securable’.

◼ Site size is not critical but proximity and character is.

◼ Management measures required.

◼ Primary site to be delivered prior to the main

construction works overlapping with a breeding

season.


◼ Stage 1: Site selection

◼ Establish required physical, biological and human

criteria (remoteness, management)

◼ Definition of the long list of options

◼ Creation of a short list based on deliverability

◼ Stage 2: Assessment of feasibility

◼ Site visits and consultation

◼ Environmental baseline and land ownership

reporting

◼ Physical, environmental and socio-economic

parameters / constraints

◼ Concept design of preferred solution(s)

◼ Stage 3: Outline design

◼ Development of viable designs

◼ Progression of consenting strategy

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Wylfa Newydd New Nuclear DCO - Process


◼ Horizon’s position of no AEOI

maintained.

◼ ExA requested – without prejudice –

an AAS and IROPI case and

evidence of progress on

compensation.

◼ Draft DCO Requirement proposed

the provision of Tern Compensation

Sites in case the SoS determines

AEOI.

◼ DCO Requirement supported by a

Compensation Strategy (to be)

included in the COCP.

◼ Pre-commencement Establishment

and Management Plans.

Wylfa Newydd New Nuclear DCO - Examination


◼ Mitigation became compensation IROPI required

◼ Designed to erode and evolve:

Increasing invertebrate numbers and diversity, but not in the

southern bund

Significant bird usage, longer into the tidal cycle

Trinity III Terminal expansion HRO

T1

-0.5

0.0

0.5

1.0

1.5

2.0

0 10 20 30 40 50 60 70 80 90 100 110 120 130 140 150 160 170 180 190 200

Chainage (m)

Elevation (mODN)

Survey 1 (11/9/03) Survey 2 (18/9/03) Survey 3 (30/9/03) Survey 4 (13/11/03)

Survey 5 (9/3/04) Survey 6 (3/9/04) Survey 7 (27/4/05) Survey 8 (20/9/05)

Foreshore habitat enhancement


Recommendations

◼ Clearly establish and agree compensation objectives

based on the requirement for compensation

◼ Consider where compensation can be delivered ‘naturally’ /

as part of the project

◼ Select appropriate sites – ideally within or adjacent to the

affected designated site – allowing lower ‘ratios’ of

compensation to be delivered

◼ Clearly set out the site targets and ensure they are

measurable and achievable – this is paramount

◼ Ensure that the project design reflects these

◼ Work in partnership wherever possible

◼ Monitor and report openly to ensure that the objectives

have been achieved


◼ The acceptance of some (measured) risk – to deal with uncertainty in natural systems

➔ through good data and the exchange of information

➔ ‘adaptive environmental management plans’

◼ Shared responsibility and decision making

➔ But a single point of responsibly for delivery

◼ Participatory forums

➔ enabling shared decision making and establishing trust

◼ The acceptance of an iterative, flexible approach:

➔ through monitoring, reporting and response

➔ that recognises the inherent variability of sea

Key attributes of good practice

Planning & Licensing for

Offshore Wind Energy

David PrattHead of Marine Planning and Strategy

Zoe CrutchfieldHead of Licensing Operations Team

Planning

Licensing Science

Marine Scotland and The Crown Estate

Marine Planning

and Licensing

Authority

Seabed Leasing

Agency

Draft Sectoral Marine Plan for Offshore Wind

Energy 2019

• Draft Sectoral Marine Plan

for Offshore Wind Energy

– https://bit.ly/36Gi5tX

• Offshore Wind Policy

Statement

– https://bit.ly/36CpURw

• Both will run from 18

December 2019 until 25

March 2020

https://bit.ly/36Gi5tX

https://bit.ly/36CpURw

The planning process…..

Summer 2018

Summer to

Autumn 2019

Late 2019

through

early 2020

2020

WE ARE HERE

On

go

ing

co

nsu

ltatio

n a

nd

en

ga

ge

me

nt w

ith s

take

ho

lde

rs

Draft Plan Options selected

Iterative

plan review

Autumn

2018 to

Spring 2019

Plan-level Mitigation

& sHRA Conclusions

• Blue - Standard DPO

• Green - Subject to high

levels of ornithological

constraint (previously

temporal mitigation)

• Orange - Subject to

regional level survey and

assessment

Strategic Planning to Project

Licensing……

• Process, Process, Process

• Who’s responsible

• Over-riding Public Interest

• Where are the risks

• Regulators

• Developers

• Stakeholders

• Compensation

• Direct links with application

• Geographic Boundaries

Procedural issues aka the Developer’s Dilemma

Julian Boswall, Partner, Burges Salmon LLP, Chair RUK Offshore Consents and Licensing Group

RUK Offshore Consents and Licensing Group

• 8 Offshore Wind developers

• 1 Wave & Tidal developer

• 1 OFTO/transmission owner/developer

• 1 Contractor

• The Crown Estate

• Scottish Renewables

• Renewable UK (Alicia Green)

• 5 Environmental/technical consultants

• 3 Law firms

The developer’s original and new dilemma

• BUSINESS AS USUAL: Two years pre-application: is there meaningful risk of project alone or cumulative impact triggering Adverse Effect on Integrity?

• To date, no offshore wind developer has conceded AEoI in advance

• Some high stakes, stressful Examinations, where developer has been assumed to be taking risk of refusal if loses AEoI argument i.e. assumption DCO decision period will not be extended

• BIG CHANGE: Hornsea 3 opens the generic question – how long will DCO process extend to allow consideration of Article 6(4) Derogation? How will/should this work? Or is there a better way?

• Practicalities and timing of negotiating and securing compensatory measures to allow SoS to make legally robust decision

• DCO timetable certainty lost/undermined and CfD bidding round timing risk

• Takes a key issue outside the normal Examination process into the Decision phase

Resolving the new dilemma: de-risking Derogation?

• All developers and stakeholders will need to consider implications of Hornsea 3 (and Norfolk Vanguard) for new applications once they have played out in full

• Might this be trigger for proactive strategic solutions for specific species, meaning projects are not expected to develop individual solutions?

• What about bespoke scenarios where developer not prepared to concede AEoI in advance but accepts may lose the argument?

• Should developers consider proposing Derogation cases ‘in the alternative’ to de-risk position and avoid delay of resolution in Decision phase?

• Will SNCBs and other stakeholders be prepared to negotiate compensatory measures which may not, in fact, be obliged to be delivered (if SoS sides with developer)?

• How would this work in practice e.g. scaleable assumptions about effects and compensatory measure?

• Scottish section 36 system has more timetable flexibility but many of the same issues still apply

Habitats Regulations Derogation Workshop

Cetaceans

Jennifer Learmonth

21 January 2020

Restricted

21 January 2020

Cetaceans

◼ For cetaceans, it is currently considered less likely that the compensation stage will be

reached as a range of potential alternatives and/or mitigation measures may be

available.

◼ A number of OWF Projects have adopted Site Integrity Plans (SIP) which provide a

framework for agreeing the details of mitigation measures, in order to ensure there

would be no AEoI.

◼ If the derogation route was adopted for cetaceans, there are likely to be challenges in

determining the appropriate level and extent of compensation required.

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21 January 2020

CetaceansPotential Alternatives and / or Mitigation Measures

◼ This could include project design, mitigation measures

and/or planning where and when activities take place.

◼ For example:

❑ Scheduling and location of activities.

❑ Noise reduction at source (e.g. bubble curtains,

Hydrosound damper (HSD), IHC Noise Mitigation Screens).

❑ Use of alternative installation methods to pile driving

(e.g. vibropiling or blue hammer technology).

❑ Use of alternative foundation types to avoid pile driving

(e.g. suction caissons or gravity bases).

◼ Although, many of these are not currently deemed

to be suitable for large scale deployment in the OWF

industry.

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21 January 2020

Cetaceans

Possible Compensation Options

◼ Possible options that could be considered include prey

management measures which could enhance and

protect the availability of prey species.

◼ For example:

❑ Restricting catch quotas for key prey species

(for example, in the seasonal areas of the SNS SAC);

and/or

❑ Designate areas with restricted or no take

(this could be, for example, in and around existing and

developing offshore wind farms); and/or

❑ Protect and enhance prey habitats by restricting activities

such as trawling and dredging from key areas.

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21 January 2020

Cetaceans

Possible Compensation Option

◼ Reducing by-catch?

◼ Would reducing potential ‘direct take’ be considered a

realistic or proportionate compensatory measure for the

potential temporary disturbance from underwater noise?

◼ The main risk of by-catch for harbour porpoise is

typically from gillnets – but relatively low gillnet fishing

activity in the SNS SAC or rest of North Sea MU (WWF

20191).

◼ There are several projects / organisations currently

working on reducing bycatch, e.g. ASCOBANS, ICES,

WDC, etc.

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1WWF (2019) review of harbour porpoise bycatch in UK waters: https://www.wwf.org.uk/sites/default /files/2019-04/Review_of_harbour_porpoise_in_UK_waters_2019.pdf

Overlap of Harbour porpoise SACs with ICES Rectangles. Shading in rectangles indicates total gillnet catch for 2017. Based on UK Sea Fisheries Annual Statistics and taken from WWF (2019)1

21 January 2020

Cetaceans

Discussion Points

◼ Are compensation measures appropriate for cetaceans?

◼ Are compensation measures required for cetaceans?

❑ If so, what would be the most suitable approach?

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TCE RUK HRA Workshop | 21 January 2020

Annex 1 Habitats

BASELINE

◼ Objective – maintain or restore favourable condition vis-à-vis:

◼ extent and distribution of qualifying habitats;

◼ structure and function of qualifying habitats; and

◼ supporting processes.

◼ Area of site: large.

◼ Extent of effect: 300,000m3.

◼ Exerting pressure:

◼ Demersal fishing.

◼ Aggregate extraction.

◼ Cabling.

◼ Oil and gas operations.

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Bob Furness

Ornithology compensation scenario 1

Ornithology scenarios

1. Compensating for gannet CRM

Offsite but like-for-like scenario (reducing mortality of gannets to compensate for predicted mortality)

2. Compensating for multiple impacts

Offsite and not like-for-like scenario (rat eradication)

Scenario 1: AIMS

This hypothetical scenario considers whether:

• It is appropriate to compensate for an adverse effect on one SPA through actions to improve the survival of individuals of this species at a different SPA, within the same biogeographical region;

• The conservation status of the feature at the proposed compensation site has any influence on thinking about the appropriateness of that compensation;

• A compensation strategy that reduces deaths of chicks when people visit a colony represents an acceptable form of compensation or not;

• Whether encouraging gannets to form new colonies would be an alternative compensation possibility.

Scenario 1: Gannets -

background

• Location of proposed development – southern North Sea;

• Appropriate Assessment estimates that development would kill 10 gannets per year from Flamborough and Filey Coast SPA by collisions and displacement combined. Adverse Effect on Integrity of the SPA cannot be ruled out.

Scenario 1:

Gannets – the

challenge

• FFC SPA citation lists 8,469 pairs of gannets as a feature;

• Gannet colony is growing, and has high breeding success;

• There are no obvious measures that could be put into effect at the colony that would compensate for additional mortality;

• Suggests that compensation would need to be offsite;

• Almost all gannet colonies in UK are SPAs;

• Gannets in UK SPAs are all in Favourable Conservation Status.

Scenario 1:

Gannets – some options

1. Reduce mortality of adults and fledglings at a different colony – Bass Rock – part of Forth Islands SPA with gannet in FCS – by landscaping work to remove mortality hazards;

2. Construct a tunnel from the Bass Rock landing area to the viewing platform;

3. Encourage more rapid colonization of St Abb’s Head;

4. Encourage colonization of a decommissioned offshore gas platform.

Scenario 1 option 1 -

landscaping

1. About 20 adult gannets at Bass Rock die each summer as a result of flying into the metal handrail along the clifftop;

2. About 30 fledglings at Bass Rock die each autumn trapped in accumulated mud between the rock and the wall of derelict lighthouse outbuildings.

Scenario 1 option 1 -

landscaping

1. Removal of railings during October (when no gannets remain on the Bass) would cost about £10,000 as a one-off job;

2. Landscaping the ground around the lighthouse buildings, cost about £50,000 as a one-off job.

Scenario 1 option

2 – visitor tunnel

1. Scottish Seabird Centre takes bird photographers onto Bass several times per week throughout the summer and this is an important income stream and ecotourism facility;

2. Visitors have to step over nesting gannets along the path to access the viewing area and gannet numbers nesting on the path are increasing fast;

3. Building a polycarbonate tunnel from the landing stage to the viewing area would allow visitors to continue to access the colony without causing losses of eggs and chicks from nests;

4. Cost of construction might be around £300,000.

Scenario 1 option

3 – St Abbs

1. Gannets have begun to nest at St Abb’s Head (which is an SPA for breeding seabirds but not yet for gannet) 1 nest 2016, 7 in 2019;

2. Playback of gannet colony sounds and gannet models may encourage more rapid colonization;

3. It is unclear what the consequence of that might be for the size of the regional population of gannets;

4. Likely to displace guillemots (which are an SPA feature).

Scenario 1 option 4 – gas

platform

1. A decommissioned gas platform might provide a safe nesting site for gannets relatively close to feeding grounds;

2. Playback of gannet colony sounds and gannet models may encourage colonization;

3. The creation of a novel colony may be more beneficial to the biogeographic population size than the encouragement of birds to nest at a site that is already being colonized naturally.

Bob Furness

Ornithology compensation scenario 2

Ornithology scenarios

1. Compensating for gannet CRM

Offsite but like-for-like scenario (reducing mortality of gannets to compensate for predicted mortality)

2. Compensating for multiple impacts

Offsite and not like-for-like scenario (rat eradication)

Scenario 2: AIMS

• This scenario is intended to develop thought on the suitability of compensation of measures that are not like-for-like forms of compensation but, rather, identify key strategic conservation gains that could be achieved with a high degree of certainty for different species and at different sites from those impacted by a development.

Scenario 2: background

• Location of proposed development – southern North Sea;

• Appropriate Assessment concluded that an AEoI of the FFC SPA seabird assemblage could not be ruled out as a consequence of displacement effects on guillemots and razorbills and collision effects on kittiwakes and gannets due to the operation of more than one OWF in-combination. The precautionary assessment by Natural England (which did not entirely coincide with the assessment presented by the developer) suggested that the proposed development itself may result in the additional mortality of up to 50 guillemots, 10 razorbills, 20 kittiwakes and 10 gannets per year in an SPA that, on the basis of assessments for operational and recently consented developments, is already at a level where an AEoI of the populations of these species cannot be ruled out.

Scenario 2: the

challenge

• There is no obvious action that could be taken at the FFC SPA colony to compensate for mortality at the proposed OWF;

• There is little that seems practical to do at other sites that would compensate for guillemot, razorbill, kittiwake and gannet;

• Eradication of invasive mammal predators (especially rats) is a highly effective way to improve the conservation status of some seabirds (including especially petrels, shearwaters and puffins, but also guillemots and razorbills) but not gannets or kittiwakes.

Scenario 2: rat eradication as compensation

• Offsite

• Not like-for-like

• Highly effective

Scenario 2: rat

eradication – Rum NNR

• Rum NNR (and SPA) is a 10,463 ha island in the Inner Hebrides, west Scotland, with one of the largest Manx shearwater colonies in the world, a feature of this SPA;

• Site Condition Monitoring in 2003 (the most recent) classified the Manx shearwater feature as ‘Favourable Maintained’ but more recently evidence suggests declines in numbers and increasing impacts of rat predation (Dr Andy Douse, pers. comm.). Many other Manx shearwater colonies have been extirpated by rats, but eradication of rats from Lundy and Canna led to rapid recovery of Manx shearwaters at those sites.

Scenario 2: rat

eradication – Rum NNR

• There is a very extensive literature demonstrating the efficacy of eradicating rats to enhance seabird conservation status;

• Outstanding examples include rat eradication from the Shiants, Lundy, Canna, and Ailsa Craig in the UK and from South Georgia in the sub-Antarctic;

• Rum NNR was high on a list of UK site priorities for invasive mammal eradication identified by Ratcliffe et al. (2009);

• Cost of eradicating rats from Rum have been estimated at around £4.5 million.


Annex 1 Habitats

SCENARIO

◼ Habitat: subtidal sandbanks and potential reef.

◼ Effects due to:

◼ sand wave clearance and seabed disturbance during cable installation; and

◼ long term rock protection of the cable route (AEoI).

◼ Temporary effects: no AEoI due to reinstatement and rapid natural recovery.

◼ Avoidable effects: potential reef habitat.

◼ Baseline: degraded – unfavourable condition at designation (anthropogenic activity).

◼ Conservation objective: restore.

◼ Compensation: must do more than restore and improve the quality of the affected

features/subfeatures additionality required.

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Annex 1 Habitats

COMPENSATION MEASURE A – RESTORATION / REMOVAL OF DEBRIS

◼ Location:

◼ within the affected SAC and/or undesignated sandbanks in close proximity to the SAC;

◼ specific locations to be identified via desk top study and geophysical survey.

◼ Process: site characterisation, risk assessment and remediation plan; proven mechanical means.

◼ Area: 300,000m3.

◼ Timing: prior to cable construction; one year programme.

◼ Recovery: expected to be rapid, i.e. at the point of the removal of foreign objects.

◼ Challenges:

◼ expense

◼ targets the problem and not the cause.

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Annex 1 Habitats

COMPENSATION MEASURE B – NEW DESIGNATION

◼ Location: undesignated sandbanks in the Southern North Sea.

◼ Process: funded by the developer but undertaken by the SNCB/Defra in line with the

relevant (time consuming) regime.

◼ Benefit: additional protection.

◼ Area: 3,000,000m3.

◼ Timing: between consent and offshore construction; process should establish the site

as a candidate SAC prior to the works commencing.

◼ Challenges: a number of undesignated sandbank features have been identified by the

JNCC that are exposed to equivalent pressures; however

◼ Defra’s SAC subtidal sandbank targets have been met;

◼ Additionality?

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Annex 1 Habitats

COMPENSATION MEASURE C – FISHERIES EXCLUSION ZONE

◼ Location:

◼ within the affected SAC; in an area particularly affected by or vulnerable to mobile

demersal fishing (trawling);

◼ specific locations to be identified via desk top study and geophysical survey.

◼ Note: targeted to specific forms of fishing in specific locations.

◼ Process offshore: with CFP or EEZ would need agreement/discussion at EU level.

◼ Process inshore: would require IFCA buy in and use of IFCA bye-laws.

◼ Area: 3,000,000m3.

◼ Timing: prior to cable construction.

◼ Recovery: expected to be relatively rapid.

◼ Challenge: support from the fishing sector.

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