Scottish Government

6. Options for Powers to Deliver Marine Nature Conservation

6.1 Options

6.1.1 Introduction

Options for improving the delivery of marine nature conservation were discussed in a Sustainable Seas Task Force ( SSTF) workshop and this section largely draws on the workshop report ¹⁹, supported by further consultation with Scottish Natural Heritage and other SSTF and papers included in Sustainable Seas for All.

There are three main options in relation to nature conservations:

• Option 1: no change. This represents the baseline for comparison with other options;
• Option 2: make better use of existing measures, e.g. voluntary reserves, marine nature reserves legislation;
• Option 3: implement new measures and policies out to 200nm, through alignment of the Scottish & UK Marine Bills.

The consultation document describes the current three-pillar approach to marine nature conservation with specific measures for (I) wider seas, (II) species conservation, and (III) site protection. It recommends developing this approach further, along with the identification of overarching marine ecosystem objectives. Each option is discussed below in relation to these three pillars, with a number of sub-options under each. Not all of the changes in the consultation document need new legislation to implement them.

Changes to seal licensing are considered separately in section 6.9, and integration of historic environment site protection in section 6.10, where the options relating to these changes are outlined.

Marine nature conservation objectives may also be delivered through other policy areas of the Scottish Marine Bill, such as improvements to the licensing regime (see Section 5) and marine planning (see section 4). Overlaps with these policies are highlighted below.

6.1.2 Option 1: No Change

Under this option, Scotland would continue to seek to meet the current conservation objectives and legal commitments through existing legislation and the deficiencies identified in Section 2.3 would remain. There would be no changes to marine nature conservation policy and no new species conservation or site protection measures. Existing measures are detailed below.

Pillar I: Wider Seas Measures

Some participants at the SSTF Workshop felt that adequate provisions for wider seas measures already existed under an assemblage of different powers (both national and international). These include existing fisheries management measures, requirements of EIA and SEA legislation and other EU Directives on hazardous substances etc.

However, the latest report on the State of Scotland's Seas ²⁰ provides evidence that more work is required in order to meet a range of wider seas marine objectives. Wider seas objectives and targets often have an international dimension and the mechanisms for supporting their achievement nationally could be strengthened in the marine environment. In particular, more consideration is needed on how to meet objectives of the Water Framework Directive and EU Marine Strategy Framework Directive.

Pillar II: Species Conservation Measures

The protection of some species, for example all species of cetaceans, is required by EU law and implemented in Scotland within the 12 nm zone by the Conservation (Natural Habitats &c) Regulations 1994 (as amended). Some other marine species are protected within 12nm by the Wildlife and Countryside Act 1981 amended by the Nature Conservation (Scotland) Act 2004. Wild birds are already fully protected under the Birds Directive as transposed by the Wildlife and Countryside Act 1981.

The consensus at the SSTF workshop appeared to be that current protection for species in the wider environment in which they are found is adequate for the zone within 12nm. However, a recent report on Scottish biodiversity indicators ²¹reported declining status in the abundance of breeding seabirds. There have also been local declines in the abundance of common seals.

Pillar III: Site Protection Measures

The main site protection measures applying in Scottish waters include:

• Sites of Special Scientific Interest ( SSSI) (generally extend only down to Mean Low Water Mark);
• 35 Special Areas of Conservation ( SAC) for the marine habitats and species listed in Annexes I and II of the EC Habitats Directive (92/43/ EC);
• 49 Special Protection Areas under the EC Birds Directive (79/409/ EEC) covering the breeding habitats of seabirds down to low water mark; and
• Ramsar Sites under the 1972 Ramsar Convention on Wetlands.

The limitations of existing legislation, the importance of Scotland's marine biodiversity and Scotland's commitment to international initiatives on marine protected areas ( MPA), such as OSPAR, were recognised by the SSTF.

Potential Risks

There are a number of risks associated with this option:

• continued gaps in the current nature conservation regime: it would not address the weaknesses identified in existing marine nature conservation legislation. There would be a risk that the impacts of human activities on important areas not protected by European sites would lead to further declines in marine species and habitats;
• failure to meet obligations: it would not support achievement of existing national and international commitments on MPAs, e.g. to establish a network of marine protected areas ( OSPAR) and absence of new MPAs could affect the potential to achieve good environmental status under the European Marine Strategy Framework Directive ( MSFD);
• deterioration of the marine environment: a weak and less balanced nature conservation system may result in increased potential for detrimental changes over time or, in the most extreme cases, irreversible damage to ecosystems and a consequent irreversible degradation in the provision of the ecological goods and services on which we rely. Examples of current environmental deterioration are summarised in Table 6.1; and
• lack of a strategy for site protection may result in protection of 'best-of' sites only, with continued deterioration of representative habitats.

Table 6.1. Examples of Deterioration in Ecosystem Services and Features in Scotland

6.1.3 Option 2: Make Better Use of Existing Measures

Pillar I: Wider Seas Measures

Wider seas measures under this option could include:

1. Extending the application of economic instruments, such as accreditation schemes for farmed salmon, the provisions for decommissioning of fishing vessels to reduce fishing effort, the support to renewable energy generation projects through the Renewables Obligation Scotland and structural funding.

2. Ensuring that sectoral policies took full account of nature conservation requirements.

3. Ecosystem-based approaches being implemented through marine planning, inshore and offshore.

Pillar II: Species Conservation Measures

Species conservation measures under this option would comprise:

1. Extending protection to some new species, or improving the protection for certain species that are already protected in some form, through amendment of existing schedules in the Wildlife and Countryside Act ( WCA).

2. Enhancements to other conservation measures, e.g. reinforcement of the Biodiversity Duty contained in the Nature Conservation (Scotland) Act 2004 and establishing new species or habitat action plans and/or improving on delivery of existing plans.

Additional species and habitats that might require further protection will be those most at risk. Examples may include:

• black guillemots ( Cepphus grylle);
• arctic terns ( Sterna paradisaea);
• common seals ( Phoca vitulina);
• common skate ( Raja batis);
• burrowing anemones (e.g. Cerianthus lloydii and Cereus pedunculatus);
• seagrass beds ( Zostera species); and
• flameshell reefs ( Limaria hians).

Black guillemots and Artic terns are already specified under Annex I of the Birds Directive and common seals under Annexes II and V of the Habitats Directive, providing a good level of statutory protection. Others, such as the common skate, seagrass beds, and burrowing anemones are already included in the list associated with the Biodiversity Duty but might benefit from more statutory forms of protection, e.g. under the Wildlife and Countryside Act 1981

Pillar III: Site Protection Measures

Site protection measures under this option could include making better use of existing marine nature reserves legislation (for example using marine nature reserve provisions into the subtidal area or establishing voluntary reserves.

Statutory marine nature reserves may be established under the Wildlife and Countryside Act 1981 to conserve, and provide opportunities for the study of, marine flora and fauna and geological and physiographical features of special interest and are restricted to within 3 nm. The marine nature reserve arrangements are based on the voluntary approach and are thus dependent on securing the co-operation of all the local interests concerned - e.g. fishermen, divers, local authorities - to agree the detailed provisions for protecting each site. Voluntary approaches are also heavily dependent on external funding. Perhaps as a consequence, there are only three designated marine nature reserves supported by bylaws - Lundy Island (in England), Skomer Island (in Wales) and Strangford Lough (in Northern Ireland) - together with many non-statutory marine nature reserves established by agreement between non-governmental organisations, stakeholders and user groups. The UK Marine Bill includes provisions to repeal this legislation in England and Wales.

Potential Risks

The main risk associated with Option 2 is that it might fail to deliver the Government's commitment to establish a network of marine protected areas. While it might prove possible to protect some important sites through the marine nature reserve provisions of the Wildlife and Countryside Act 1981, previous attempts at using these powers have generally resulted in failure.

Similarly, whilst gaps in species management and protection might be partly addressed by extending the range of species considered under the Biodiversity Duty or related mechanisms, this is essentially a non-statutory measure and may not secure the level of compliance necessary to result in measurable improvements.

Furthermore, decommissioning schemes targeted at reducing general effort by some fisheries, or pressure on some commercial fish stocks, may not lead to benefits for other key species or on habitats of wider biodiversity importance.

6.1.4 Option 3: Implement New Statutory Measures and Policies

Pillar I: New Wider Seas Measures

Wider seas measures under this option would comprise:

1. A new marine planning framework out to 200nm (see Section 4). This could be provide the main mechanisms for management of MPAs and delivery of MPA conservation objectives (e.g. through licensing decisions or zoning damaging activities away from features of conservation importance) and therefore will link into supporting Pillar II and III objectives;

2. Identification of new marine ecosystem objectives to deliver nature conservation. These are likely to be developed via marine planning (see Section 4).

Option 3 may also consider measures applicable to commercial fisheries within a system of marine spatial planning and, therefore, might include additional measures for cod and Atlantic salmon.

Pillar II: New Species Conservation Measures

Species protection measures considered within the new marine planning framework and marine ecosystem objectives, as above. Additional species for which further conservation measures might be required were identified under Option 2.

Pillar III: New Site Protection Measures

Site protection measures under this option might comprise:

1. New flexible powers introduced for Scottish Ministers to identify, designate or recognise particular locations of biodiversity importance and demonstration/ research areas. 'Sustainable Seas for All' outlined that sites could fulfil international and national priorities and site proposals from communities may be considered.

2. Other measures considered within the new marine planning framework e.g. marine ecosystem objectives and zoning in marine plans (subject to content of local plans).

The new sites under the Scottish Marine Bill are termed marine protected areas. The Scottish Government estimates that 10-20 new sites may be needed, of which approximately 10 would be taken forward for their national/international biodiversity importance (over and above Natura sites inside 12 nm around Scotland ²⁴) and the remainder could be for demonstration/research purposes or in light of community proposals.

A further 10 new MPAs may be designated by Scottish Ministers in offshore waters adjacent to Scotland under the powers included in the UK Marine Bill. However, the provisions for offshore nature conservation arise from the UK Marine Bill, and therefore the costs for the 10 offshore nature conservation sites should be allocated to that Bill, rather than the Scottish Marine Bill.

Existing marine Natura sites hold other species and habitats recognised by OSPAR that could be nominated as OSPAR marine protected areas for these additional features but the management of the Natura features may be sufficient to protect these other features recognised by OSPAR. There are currently 35 SACs for coastal and marine habitats inside 12 nm and a further two are being considered to complete the SAC list in Scottish inshore waters.

The Scottish Government proposes to prioritise a network approach to identifying new MPAs for biodiversity and to consider contribution to national priorities when considering other proposals from communities. The costs have been estimated on the basis that 10 sites would be identified in 2009-10 and 2010-11 with additional survey and consultation of 5 sites in 2010-11 and a further 5 in 2011-12

Potential Risks

The main risks associated with this option are that the marine planning system could prove to be ineffective in protecting nature conservation features. This is particularly the case offshore (which is covered by the UK Bill) where enforcement is more expensive and more difficult and where strict protection may not be achievable without amendment to international legislation (e.g. common fisheries Policy, UNCLOS). A further risk is that the level of detailed information sought by some stakeholders to support formal site protection may not be readily met, or there may be other data gaps, leading to delays in identification and protection of a marine protected area network.

These risks may be mitigated by seeking to ensure that the design of the marine planning system provides adequate protection to important nature conservation features (including where necessary negotiation at an international level) and that a sufficient investment in data collection is made to support site protection measures.

Any site protection measures that displace activities elsewhere may also result in increased environmental impacts and sectoral conflicts in areas outside the sites. Any restrictions on leisure activities might reduce the economic benefits of nature conservation to society.

6.1.5 Comparison of the Options

Table 6.2 compares the main features of the three options.

Table 6.2: Summary of Options for Powers to Deliver Marine Nature Conservation

6.2 Sectors and Groups Affected

Key business sectors that could be affected by measures for marine nature conservation are listed below. However, not all sectors are likely to be affected by each measure; MPAs in particular would be managed for the features of interest and the Scottish Government anticipates that in most cases social and economic uses are likely to be compatible with protection:

• marine renewable energy;
• fisheries (finfish and shellfish);
• ports and harbours;
• shipping;
• aquaculture;
• oil and gas extraction and related pipelines
• telecommunication and power cables;
• sand and gravel extraction;
• recreational and tourism companies, and
• other activities covered by regimes such as marine licensing and environmental consents.

Government sectors affected include those responsible for designing, implementing and enforcing measures, responsibilities that may or may not be devolved to the Scottish Government. They include not just only departments of the Scottish Government but also local authorities and other regulators.

Social and environmental groups affected include non-governmental organisations, individual members of society and society as a whole through the educational value, cultural heritage and other non-use values such as bequest and existence values of the marine environment.

This Impact Assessment also considers risks, costs and benefits to the natural environment as a whole encompassing all ecosystem services and components.

6.3 Benefits

6.3.1 Introduction

The aim of Options 2 and 3 outlined above is to improve the state of the marine environment compared to the current situation within a framework that promotes sustainable economic growth. This gives rise to economic, social and environmental benefits; the extent of these benefits will depend on the degree of improvement of the state of the environment that each Option achieves. This is very difficult to determine, because of remaining uncertainties about the cause-effect linkages. We therefore discuss first the potential range of benefits that could be achieved through improvements in the marine environment, then the benefits specific to each option and to each pillar of marine nature conservation.

6.3.2 Potential Benefits from Improvements in the Marine Environment

As indicated in Table 6.1, there are a number of examples of deterioration in the Scottish marine environment which could continue under Option 1. Options 2 and 3 seek to improve the delivery of marine nature conservation, resulting in an overall improvement in the state of the marine environment. Improvements in ecosystem components (e.g. fish stocks) or processes (e.g. nutrient loads) will provide indirect benefits for the economy, society and other environmental aspects.

This section outlines these benefits and where possible assigns a value to these. Although these benefits will vary among the different measures, the precise extent of variation is difficult to determine.

Economic Benefits

The current economic value of the marine environment to the Scottish economy is estimated over £2 billion per year (at 2004 prices, see Table 4.5). Table 6.3 indicates the economic value of sectors directly related to the quality of the marine environment; this total over £970 million per year. Nature conservation measures which enhance the sustainability of these sectors could therefore ensure that these significant economic benefits are retained.

Table 6.3: Current Economic Value Associated with Marine Ecosystem Component in Scotland

Social and Environmental Benefits

The RIA for the UK Marine Bill provided some monetary valuations of the social and economic value of various ecosystem goods and benefits. These are summarised in Table 6.4. The table indicates that social benefits could be at least equal to the economic benefits of marine biodiversity. As Scotland accounts for over 55% of the UK marine area out to 6 nm, where the majority of benefits occur, this could imply potential social and environmental benefits to Scotland of over £7 billion per year. However, the values are subject to significant uncertainty.

Table 6.4: Environmental and Social Benefits from UK Marine Biodiversity

The specific environmental benefits of improvements in marine nature conservation management include:

• reducing the current risk of the deterioration of marine biodiversity and ecosystem services;
• the conservation of marine species and habitats able to support biodiversity in general, particularly biologically mediated habitats such as maerl and horse mussel beds;
• reduced disturbance from anthropogenic perturbations, improving the resilience and resistance of marine ecosystems to absorb natural fluctuations in their environment from e.g. climate related changes;
• reductions in the concentrations of pollutants, improving levels of immune system health and fecundity of species such as seals and bivalves; and
• protection of natural habitats and processes, restoring natural functions for flood and erosion protection.

6.3.3 Benefits of Specific Options

Option 1

There are no new long-term benefits associated with Option 1. There may be some short-term benefits under this option, in that policy-makers, businesses and marine users will not have to change their behaviour. However, it is likely in the longer term, that political and economic pressures on the marine environment will ultimately require alternative solutions and consequent modifications in activity.

Option 2

Option 2 should lead to an improvement in the marine environment, with the potential to achieve some of the benefits described above. The benefit of making better use of existing measures under Option 2 is that the systems are already in place and understood by all stakeholders. Therefore, fewer costs will be incurred by government and regulators in designing new measures, consulting on them and implementing them.

Option 3

By developing a more systematic approach to management of the marine environment, Option 3 should enable a greater improvement in the marine environment than Option 2, thus generating greater economic, social and environmental benefits. The benefits of Option 3 are largely related to measures introduced through a new system of marine spatial planning. Some of these benefits are discussed in Section 4. Benefits specific to nature conservation include:

• the development of a network of marine protected areas, which will enable international agreements under OSPAR to be met and contribute to ecosystem health;
• marine planning, marine ecosystem objectives and a network of protected areas also provide the potential to develop a greater understanding of ecosystem function through associated environmental monitoring programmes and data collection; and
• a suite of marine ecosystem objectives will better enable an ecosystem approach to be adopted in the wider management of the marine environment.

6.3.4 Specific Benefits of Each Pillar of Marine Nature Conservation

Different benefits are also associated with the different pillars of marine nature conservation.

Wider Seas Measures:

• often provide an overall framework at a broader level to underpin lower level nature conservation efforts. Marine ecosystem objectives, for example, are a useful integrating tool that would span local plan boundaries because they would reflect the ecosystem scale and national priorities;
• provide a system of integrating nature conservation with sectoral activities. For example, the RIA for a £5 million fishing vessel decommissioning scheme in the South West of England ²⁵ (2007) noted that environmental benefits would be improved if teamed with a long term plan reducing the number of days at sea per year that a vessel can fish.

Species Conservation Measures:

• can be targeted towards vulnerable species;
• can consider the entire lifecycle needs of the species (e.g. ontogenetic shifts in habitat requirements), its migratory movements;
• can be applied at an appropriate scale for the population size.

Site Protection Measures:

The level of benefit from site protection measures (e.g. marine protected areas) is greatly dependant on the objectives and the level of protection afforded. The benefits of marine protected areas have been discussed by a number of authors. Those specific to site protection include:

• prevention of physical damage and degradation of marine habitats;
• support the recovery and restoration of degraded habitats;
• community and ecosystem benefits such as greater complexity of food webs and increased primary and secondary productivity;
• higher densities, biomass, size and diversity of certain species or groups of species; and
• provision of reference areas for studying and improving understanding of the impacts of human activities on the marine environment and natural systems.

6.4 Costs

6.4.1 Costs of Option 1: No change

Continuing with the current marine nature conservation regime will not result in any direct additional costs to businesses and government. However, if any of the risks identified in Section 6.1.2 are realised, they will ultimately result in continued deterioration of the marine environment. This will have potential costs for government, businesses, society and the marine environment. These are of two types:

• costs from deterioration of the marine environment; and
• costs from failure to meet international obligations.

Costs from Deterioration of the Marine Environment

The costs of deterioration relate to the loss of and damage to goods and services provided by the marine environment. Given our limited understanding of the marine environment, it is difficult to predict exactly what losses might be incurred and to what degree, but it is likely that if action is delayed now the responses needed in future will be more acute and some changes may be irreversible. Generally, it is extremely difficult to assign an economic value to any of these losses. However, previous losses of marine components and processes can provide indications of the potential impacts. Examples of these are shown in Table 6.5.

Table 6.5: Examples of Impacts Associated with Losses of Marine Components and Processes

The value of some marine ecosystem components in Scotland that might be at risk of deterioration can be inferred from the current value of associated industries. These were shown in Table 6.3 as totalling around £974 million per year. If deterioration in the environment reduced the value of these sectors by only 1%, this would indicate a net present value cost of more than £14 million over 20 years. As the non-economic value of the marine environment is estimated to be at least as great as the economic value, there could also be losses of more than £14 million over 20 years in non-economic value.

Failure to Meet International Obligations and Commitments

Failure to meet international obligations and commitments on conservation may result in damage to Scotland's reputation and fines may arise from failures in meeting EC legal obligations. The EU Marine Strategy Framework Directive places an obligation on all member states to achieve good environmental status within their respective waters by 2020 and measures include MPAs in response to international agreements. Failure by Scotland to achieve this could result in the start of infringement proceedings by the European Commission and, in extreme cases, may culminate in expensive legal action ²⁶.

Such action is not without precedent. In 2005, the Commission launched infringement proceedings against eight member states, including the UK, for failing to adequately monitor how effectively their populations of cetaceans - whales, dolphins and porpoises - were being protected.

A more significant landmark case was that brought against France for letting undersized fish be offered for sale, twice; one infringement in 1991 and again in 2005 ²⁷. France was ordered to pay both a periodic penalty payment of €58 million every six months that it failed to meet compliance and a lump sum fine of €20 million for serious and persistent failure to comply with Community law.

Although full legal action is generally avoided by taking corrective action, this represents a very realistic and potentially expensive risk. Ultimately, improvements in marine nature conservation, particularly the establishment of a network of marine protected areas, may be legally enforced upon Scotland.

6.4.2 Costs of Option 2

The measures envisaged under Option 2 will give rise to a number of costs:

• costs to government in setting up the measures; these are discussed in more detail below in relation to each pillar.
• costs to industry are also discussed below in relation to each pillar;
• costs to society and the environment are likely to be minimal, as the measures are designed to enhance the value of the natural environment. There may be some additional costs to NGOs and individuals in responding to consultations associated with the measures.

Costs of Pillar I: Wider Seas Measures

A range of economic instruments is used to influence activity in the marine environment. Examples include accreditation schemes for the salmon industry, the provisions for decommissioning of fishing vessels to reduce fishing effort or the support to renewable energy generation projects through Renewables Obligation (Scotland) ( ROS). More information on these measures is provided in Table 6.6 below.

The costs of economic instruments largely fall to Government and may be minimal in terms of running an accreditation scheme or significant, for decommissioning of fishing vessels.

Table 6.6: Economic Instruments in the Marine Environment

To achieve better integration of environmental considerations into sectoral policies, policies would need to be reviewed and assessed for how well they integrate nature conservation objectives and amended accordingly. Policies already undergo regular review so, in this sense, there would be little cost to regulators. However, costs to industry may be significant, depending on the additional restrictions imposed. The key areas are those where sectoral activities have a large impact on the marine environment. Table 6.7 provides examples of such sectors.

Table 6.7: Examples of Integration of Environmental Considerations into Sectoral Policies

Costs of Pillar II: Species Conservation Measures

Biodiversity action plan-related expenditure in Scotland (terrestrial and marine) currently totals approximately £92 million per annum and is expected to increase to £97 million by 2010/11 at 2005/06 prices ²⁸. However, some habitat action plans and species action plans were considered to be resource constrained. The estimated shortfall in biodiversity funding in Scotland was £42.7 million in 2005/06.

Costs for extending the Biodiversity Duty to include new habitats and species can be estimated from the costs of establishing individual habitat action plans and species action plans23 across the whole of the UK.

The total estimated annual costs for 12 marine habitat action plans ranged from £900,000 to £6 million per year. Therefore, the average cost for a single marine habitat action plan could be estimated to range from £76,000 to £501,000. This average is likely to be an over-estimate, as cost savings would be available from the work carried out for other marine habitat action plans (e.g. research, surveys, monitoring, communications and publications). However, as an example, the cost of assessing and/or monitoring the quality of a single Modiolus bed is likely to be in the region of £20,000 per year. The actual annual cost will vary, depending on the extent of the habitat, the status of the habitat, the number of issues facing its conservation status, the targets set for the management of the habitat and the stage at which the plan is (i.e. new plans often have higher initial costs associated with research).

Similarly, the average annual cost per species action plan was £55,900, varying from £23,200 for plants to £39,000 for invertebrates and £206,000 per year for vertebrates. As an example, the estimated costs for delivering the Basking Shark species action plan were £220,000 per year in the five years to 2003/04 and £216,000 per year in the five years to 2008/09. These costs are summarised in Table 6.8.

Table 6.8: Estimated Costs for Basking Shark Species Action Plan

The estimated total cost of delivering this species action plan was updated in 2006 to £151,000 per year for the following five years (to 2011), due to lower research costs. These costs are for the whole of the UK. Costs for a species action plan in Scotland alone are unlikely to be much less than this, as the same actions would be required, albeit on a smaller scale.

The species already listed under the Biodiversity Duty could be given more statutory protection through legislation such as the Nature Conservation (Scotland) Act. The costs to government of amending existing legislation would relate to tasks such as carrying out consultations, preparation of draft and final documents, and obtaining sign off by ministers. Costs for habitat action plans and species action plans would provide a relevant comparison here, although the additional costs to enforcement agencies of monitoring compliance could add a significant amount. A likely estimate of surveillance and enforcement is £198,000 per species/habitat at 2005 prices based on budgets for surveillance of offshore SACs ²⁹.

Costs of Pillar III: Site Protection Measures

The costs of designating marine nature reserves can be obtained from existing reserves; Lundy Island (in England), Skomer Island (in Wales) and Strangford Lough (in Northern Ireland). Two of these examples are detailed in Table 6.9.

Table 6.9: Costs of the Implementation and Management of MNRs

Two examples of the costs of voluntary reserves are provided in Table 6.10 below. The costs do not differ greatly from those incurred in the use of statutory measures in Table 6.9 above. However, due to the lack of enforcement powers, the benefits are often lower.

Table 6.10: Costs of the implementation and management of voluntary reserves

6.4.3 Costs of Option 3

Option 3 involves the development of a new system of marine spatial planning, supported by marine ecosystem objectives, improvements in species protection and MPAs, in order to achieve a coordinated approach to the three pillar levels of conservation. The costs of establishing a marine planning system are discussed in Section 4 of this report. The more detailed costs of identifying and implementing marine ecosystem objectives and site protection are assessed here. Section 6.9 outlines the estimated costs of improvements to seal legislation.

There are two main areas to be considered in assessing the costs of implementing marine ecosystem objectives:

• the costs (mainly to government) of developing, implementing and monitoring the marine ecosystem objectives and assessing their success (direct costs); and
• the costs (mainly to industry) of the programmes and measures that will be needed to deliver the marine ecosystem objectives (indirect costs).

Indicative costs of measures to achieve marine ecosystem objectives can be derived from the costs of previous marine management measures and judgements on the likely requirements for future additional measures. However, a high degree of uncertainty is associated with such estimates because:

• the suite of marine ecosystem objectives and any associated targets have not yet been defined;
• the mechanisms by which measures may be implemented and what, if any, trade-offs there might be with social and economic objectives is unclear; and
• the timescales for achievement of the objectives have not been defined.

Marine ecosystem objectives would be a component of the marine planning system and the estimates in Section 4 include these costs.

Costs of Marine Ecosystem Objectives to Government

The direct costs to Government of implementing marine ecosystem objectives are associated with:

• development of a suite of agreed objectives and indicators;
• implementing the objectives through policy and legislation (for example through marine planning, conditions in licences etc);
• research, monitoring and assessment of the ecological status of marine ecosystem objectives;
• communication and publicity;
• advisory roles, e.g. providing general advice and information to fisheries policy makers, oil exploration and production companies etc.;
• monitoring compliance; and
• enforcement in relation to specific breaches of marine ecosystem objectives (although this is likely to be addressed through licensing controls or habitat/species protection controls).

Information on direct costs for more site-specific local objectives is available from, for example, implementing schemes for the management for European Marine Sites and implementing targets for habitat and species actions plans. However, a more appropriate example for identifying the costs of marine ecosystem objectives at a national scale may be the Irish Sea pilot. Relevant measures and costs include those associated with the North Sea Pilot project to meet Ecological Quality Objectives developed by the OSPAR Commission. These costs are summarised in Table 6.11.

Table 6.11: Estimated costs of Ecological Quality Objectives Monitoring from the North Sea Pilot Project

Costs of Site Protection Mechanisms to Government

Additional site protection measures for Scotland may be implemented within marine planning (see Section 4) and therefore be associated with an overall strategy for marine nature conservation. The costs associated with the Irish Sea Pilot provide some indicative costs of implementing such a strategy for Scotland (Table 6.12). These costs will be attributable to marine planning (see Section 4).

Table 6.12: Costs of Developing a Nature Conservation Strategy for a Typical Regional Sea

Examples of the potential costs to Government of implementing and managing site protection measures are provided by the Irish Sea Marine Spatial Planning Pilot and from implementing the Birds and Habitats Directives. Table 6.13 outlines the likely costs of designating 10-20 new sites inside 12nm.

It is likely that considerable cost savings can be achieved in the implementation of new marine protected areas. Collaboration with existing data collation initiatives and studies can reduce the costs of survey and monitoring. Site selection can be partly addressed through the marine spatial planning system.

The options on designation of an MPA are via a Statutory Instrument or by administrative order. The costs to the Scottish Government of developing Statutory Instruments are estimated at between £3,000 and £4,000 per instrument.

The costs of better recognising OSPAR and other habitats and species in SACs will be much lower and are likely to be zero in most if not all cases, as the features are already being protected and monitored either directly or indirectly.

Table 6.13: Summary of Costs to the Scottish Government for Implementing New Site Protection Measures

Costs to Industry of Site Protection Measures

The costs to industry of complying with site protection measures for marine protected areas were assessed for England, Wales and UK offshore waters in a report for Defra ³⁰. None of the scenarios outlined in the Defra study equate to the proposed method of managing the new MPAs that would be designated in Scotland under the new power ³¹.

It is difficult to estimate the costs to other organisations of complying with any specific management requirements associated with individual MPAs in Scotland, particularly since decisions will be taken on a case by case basis and the Scottish Government predicts that, in most cases, social and economic uses are likely to be compatible with the protection of the features for which a site is selected. The estimated range in potential costs per site by sector is shown in Table 6.14, which is derived from the Defra study and fisheries estimates for Scotland. The upper ranges represent the worst case scenario rather than the actual intended policy.

Table 6.14: Range of Discounted Present Value Costs to Industry of Complying with Measures Associated with Marine Protected Areas

Costs to Others

Non-governmental organisations may incur costs due to activities such as input into consultation exercise, providing evidence etc. These actions are often deemed discretionary (i.e. the activities would be carried out anyway). However, there are a number of functions that NGOs carry out, such as monitoring, executing research and site management, that might otherwise fall to Government under a more formal conservation strategy. The study for Defra indicated that, for a single organisation for a single marine protected area, one-off costs (e.g. providing site evidence and consultation) can range from £3,900 to £13,900 and annual operating costs (e.g. monitoring and site management) from £14,350 to £39,850 ³².

6.5 Small/Micro Firms Impact Assessment

If proposals for improved marine nature conservation result in improvements to marine resources, this could result in benefits for small fisheries and tourism operators that rely on those resources for business. However, there may be a need for restrictions to some economic activities on a case by case basis in MPAs and there are likely to be complicated trade offs. For example, increases in seal population numbers might benefit for tourism but could have adverse impacts on small salmon fisheries.

The increased restrictions and measures associated with nature conservation proposals are expected to result in further costs for small firms. However, many of these measures are more likely to result in modifications to activities, rather than preventing them from taking place.

6.6 Competition Assessment

New measures for nature conservation are not expected to have a significant impact on the number or range of suppliers, to limit the ability of suppliers to compete or to reduce suppliers' incentives to compete vigorously. Measures would be applied equitably across the various sectors.

6.7 Enforcement, Sanctions and Monitoring

Responsibility for compliance, monitoring and enforcement of nature conservation measures would lie with the Scottish Government. These responsibilities could be taken on by Marine Scotland (see Section 7). Reserved issues would continue to be addressed by the respective departments within the UK Government. Certain of the measures would be delivered through the licensing system (see Section 5).

6.8 Summary

Table 6.15 summarises the impacts of the three options for delivering marine nature conservation. Table 6.16 compares the ability of the options to meet the overall goals of the Scottish Marine Strategy.

Table 6.15: Summary of the Impacts of Options to Deliver Marine Nature Conservation

Table 6.16: Comparison of other factors among the overall suite of measures within each Option

6.9 Seal Licensing and Conservation

6.9.1 Introduction

Conservation of seals is currently dealt with under several pieces of legislation as detailed below:

• the Conservation of Seals Act 1970 (Co SA) prohibits the taking / injuring or killing of seals during the closed season (1 June - 31 August for common seals; 1 September - 31 December for Grey Seals) or in areas subject to a Conservation Order. The Act allows the shooting of seals outside of the closed season using an appropriate firearm and endorsed license. The act also allows for licenses to be granted to shoot seals during the closed season or under conservation order for the 'protection of fisheries' and for seals to be shot without license under 'netsmen's defense' to prevent seals causing damage to nets or fisheries catches if the seal is within the 'vicinity' of the nets.
• EU Habitats Directive: under the Habitats Directive both grey seals and common seals are identified as protected species for which Special Areas of Conservation ( SAC) must be designated, and measures taken within the SACs to preserve the conservation status of each species.
• Conservation of Seals (Scotland) Order 2004: year round restriction on the shooting of common and grey seals within the Moray Firth.
• Conservation of Seals (Scotland) Order 2007: year round restriction on the shooting of common seals in the Northern Isles and in an area between Stonehaven and Dunbar on the East Coast of Scotland.

The Moray Firth Seal Management Plan has trialled a new licensing system, where one license is issued to cover an entire area incorporating numerous District Salmon Fishery Boards ( DSFB). It is hoped to disseminate this new system into other areas of Scotland and into other industry sectors.

All shootings reported under the Moray Firth Seal Management Plan are compared against a local Potential Biological Removal ( PBR) recommendation ³³. This is the number of animals that can be taken from a population without affecting their conservation status ³⁴. It is intended that PBR figures will be used to guide the maximum numbers allowed to be shot under license for both options for amendment of the Co SA.

It is proposed in the Marine Bill to amend the Conservation of Seals Act 1970 to improve and clarify the level of protection afforded to seals while at the same time balancing this with the need to maintain sustainable fisheries and aquaculture. This section outlines the options considered for seal management and what is known about the risks of each. Where possible the potential costs and benefits are outlined.

The current situation (as of 2008) with respect to licences is as follows:

• total number of licenses issued to shoot seals under the Co SA 1970: 10
• total number of common seals authorised to be shot: 28
• total number of grey seals authorised to be shot: 23.

The licensing system requires annual reporting of the number of actual seals shot. Final returns are not due until 15 May 2009. However, the returns to date have reported 20 common seals and 9 grey seals shot. Three licenses are outstanding, authorising a maximum of 4 common and 8 grey seals to be shot. Therefore, the final number of seals culled for 2008/09 within the closed season could total 24 common seals and 17 grey seals.

There is at present no official reporting of seals killed outside close seasons or outside areas covered by seal conservation orders. A recent informal survey of fish farms, salmon netsmen and local DSFB suggested that less than 1000 seals were killed in 2008 ³⁵.

6.9.2 Options

Two options for reforming the licensing system for the management of seals were proposed in the Marine Bill consultation document and are outlined below (Options 2 and 3). A 'No change' option and a further option involving an outright ban on shooting seals are considered here solely for the purposes of the RIA.

Option 1: 'No Change' Option

As noted above, this option is considered solely for the purposes of the RIA, as it represents the baseline for comparison with the other options.

Option 2: Full Reform

Under this option, several reforms would be made to the existing legislation. The need to apply for a license to shoot seals would be extended beyond the 'close season' to apply all year round and the provision to apply for a license will be extended to fish farmers to protect cages or stock. Fish farmers do not currently have this licensing facility. The 'netsmen's defense', which allows the shooting of seals in the vicinity of nets and catches without requiring a license to do so, will be removed.

Option 3: Extend to Fish Farms

The only reform to the current legislation under Option 3 would be to extend the licensing powers to fish farms, enabling them to apply for licenses to shoot seals during the close season or under conservation order, for the protection of cages or stock. The 'netsmen's defense', permitting fishermen to shoot seals in the vicinity of nets to prevent damage to nets or catches, would be retained. This defence would also be extended to fish farms.

Proposed modifications to the netsmen's defense if option 3 is adopted include better definitions of the circumstances in which the defense can be used (definitions of "vicinity" and fishing net or fishing tackle"), and possible restrictions on using the netsmen's defense, for example in SACs or in areas covered by a seal conservation order. There will be a new requirement to report all shootings whether under licence or not.

Option 4: An Outright Ban on the Shooting of Seals

Although not proposed in the consultation paper, many responses to the consultation voiced support for a complete ban on the killing of seals with no exceptions, on the grounds of animal welfare and public support for a total prohibition on killing seals.

6.9.3 Sectors and Groups affected

Key business sectors affected by measures for seal management include:

• wild capture sea fisheries;
• salmon fisheries;
• aquaculture (fish farms);
• anglers; and
• wildlife tourism companies and other tourism-related businesses

Government sectors affected include departments of the Scottish Government responsible for licensing and relevant authorities, including Scottish Natural Heritage ( SNH) and District Salmon Fisheries Boards (both responsibility for safeguarding the conservation interests of seal and salmon Special Areas of Conservation). Research institutes that need to be consulted with include the Fisheries Research Service ( FRS) and Sea Mammal Research Unit ( SMRU).

Social and environmental groups affected include non-governmental organisations, individual members of society and society as a whole through perception of seal welfare and conservation.

6.9.4 Potential Risks

Option 1: 'No Change' Option

Under the current Co SA 1970, there are no limitations on the number of seals that can be shot outside of 'close' seasons or outside areas covered by a seal conservation order and there is no requirement to report the number of seals shot. Similarly, there are no limitations to the number of seals that can be shot and no requirement to report the number of seals shot under the 'netsmen's defense'. This entails a potential risk that seal conservation status may not be being adequately protected, although it is not considered to an actual risk at present.

The numbers of common seals have reduced in some regions in the last five years; the causes of this are unknown but may involve natural, incidental or deliberate causes. The lack of reliable information on the total numbers of seals shot makes it difficult to compare the impact of this against natural mortality or incidental deaths. This limits the scientific understanding of seal population dynamics.

There is also a risk under this Option that seal management across all fisheries sectors may not be on an equal basis.

Option 2: Full Reform

The current risks to seal conservation should be eliminated under Option 2. The number of licences issued to shoot seals is likely to increase from the present level as a result of the extension to fish farms and year round application, but is not known by how much. The actual number of seals shot under licence will also increase from current levels, but it is unlikely that this will result a marked difference in the total number of seals killed (an estimated 1,000 outside the licence process in 2008). It might be argued that, since seal killing will be more closely managed and monitored, the total numbers shot might reduce over time.

Option 3: Extend to Fish Farms

Extending licensing powers to fish farms will enable these businesses to apply for licence to shoot seals during closed season or within conservation orders. This would allow for limits to be set on the number of seals shot during closed season and would require reporting of numbers shot.

There will still be no regulation on the numbers of seals which can be shot outside close season or outside areas with conservation orders. There will, however, be a new requirement to report these shootings. There will be no limitations to the number of seals that can be shot under the 'netsmen's defense'. There will, however, be a new requirement to report the number of seals shot. In addition, the application of this 'netsmen's defense' option will be restricted to areas not covered by a seal conservation order.

This Option carries a potential risk to seal conservation status, although this risk is reduced by the power to introduce seal conservation orders to protect vulnerable populations.

Option 4: Outright Ban on the Shooting of Seals

Implementation of Option 4 will remove all of the existing legal mechanisms for managing seal impacts on fisheries and fish farms with consequent impacts on these sectors.

There are significant increased risks under Option 4 to aquaculture and wild capture fisheries. Existing seal impacts on the aquaculture industry include damage to fish cages, escape of fish from damaged cages (which creates a risk to the genetic diversity of native salmon stocks as a result of cross-breeding of native and farmed fish) and predation on stock. These will increase if fish farmers are unable to remove individual seals that are not deterred by non-lethal methods during the open season. Existing seal impacts on fisheries include damage to nets, damage to catches and predation on catches. These impacts will increase with the removal of current legal mechanisms to shoot seals to protect fisheries.

In Scotland, there is a history of conflict between seals and salmon fisheries. Like both common and grey seals, the Atlantic Salmon is listed in Annex II of the EC Habitats Directive, requiring Special Areas of Conservation to be designated and measures to be taken to preserve the species' conservation status. Removing the legal mechanism to manage seal populations may increase the risk to conservation objectives for Atlantic Salmon, particularly in terms of genetic diversity.

6.9.5 Benefits

Benefits to Fisheries and Aquaculture:

The direct benefits of Options 2 and 3 for the fisheries and aquaculture sectors (i.e. from increased protection from seal damage) will depend on the change in the number of seals killed and the extent of damage avoided. The value of these sectors to the Scottish Economy in 2006 was:

• aquaculture: £382 million ³⁶
• wild capture fisheries: £308 million ³⁷

In addition Option 2, extending licensing powers to fish farms, would mean that all fishing sectors (fisheries, netting stations and aquaculture) would be subject to the same controls and monitoring as required by the EU Habitats Directive.

Option 3, extending the redefined netsmen's defence to fish farms, would also mean that all fishing sectors (fisheries, netting stations and aquaculture) would be subject to the same controls and monitoring as required by the EU Habitats Directive.

There are no benefits for fisheries or aquaculture under Option 4.

Benefits to Seal Welfare and Conservation:

There would be no additional benefits for seal welfare and conservation under the No Change option.

Under Option 2 the following benefits may be realised:

• extension of licensing powers all year round and removal of the netsmen's defense would result in all seal management (shooting) being conducted under license, enabling improved reporting and monitoring of total seal mortality and employment of Potential Biological Removal ( PBR) figures will improve maintenance of seal conservation status;
• for example, the Moray Firth Seal Management Plan significantly reduced the impact of shooting on the local common seal population within two years of implementation ³⁸.

Under Option 3, extension of licensing powers to fish farms and restriction and redefinition of the 'netsmen's defense' would allow the limitation of seal shooting in respect of vulnerable seal populations in areas covered by seal conservation orders.

Benefits to Tourism

Wildlife-related tourism is estimated to be worth £160 million (2006) ³⁹ to the Scottish economy.

The 'No Change' Option has no benefits for tourism.

Option 2 may allow for consideration of the importance of local tourism interests as part of the licence process as under the Moray Firth Seal Management Plan.

Option 3 has no benefits for tourism.

Option 4 may result in improved seal welfare and conservation, potentially leading to increased growth and economic value of wildlife-related tourism.

6.9.4 Costs

Economic Costs to Fisheries and/or Fish Farms

The direct cost to fisheries and/or fish farms of applying for licences under the various options and the costs of meeting licensing requirements is dealt with in Section 5. This section, therefore explores any indirect cost impacts to the industry as a result of each option. The values of these sectors to the Scottish Economy in 2006 were aquaculture: £382 million ⁴⁰; wild capture fisheries: £308 million ⁴¹.

• 'No Change' Option: there is likely to be no change in current economic costs;
• Option 2: the removal of the 'netsmen's defense' should be compensated for by inclusion in the licence process, but may possibly result in increased damage or loss of fishing gear in a few cases. The potential costs cannot be assessed without knowing the current encounter rates of seals with fishing gear and the level of damage inflicted;
• Option 3: the restriction and redefinition of the 'netsmen's defense' should be compensated for by inclusion in the licence process but may possibly result in increased damage or loss of fishing gear in a few cases in areas covered by seal conservation orders. This is difficult to assess without knowing the current encounter rates of seals with fishing gear and the level of damage inflicted.
• Option 4: the removal of all legal options to shoot seals to protect fisheries or fish farms will result in increased damage to fishing gear or catches, fish farm cages and increased predation on stock or catches. It is not possible to estimate the potential economic cost to fisheries without estimates of the current level and cost of seal impacts on fisheries and aquaculture nor assumptions concerning how such damage might change in the absence of control measures. In addition, economic costs could be incurred through increased investment in alternative non-lethal methods of predator defence, such as Acoustic Deterrent Devices ( ADDs) (the cost of one ADD is approximately £20,000 ⁴² and tensioned netting for fish farms; however, these may not always achieve the reduction in predation sought.

Economic Costs to Tourism

The wildlife tourism industry has been estimated to generate around £9.3 million annually to the economy of the Highlands and Island regions of Scotland ⁴³ and to have generated £2.34 million in the Moray Firth area in 1998 ⁴⁴. Overall, the annual value of wildlife tourism in Scotland is estimated to be £160 million (2006) ⁴⁵.

• 'No Change' Option (Option 1): there have been no notable impacts on national tourism to date, but there is a potential risk that seal shooting outside close seasons and outside areas covered by seal conservation orders might result in impacts on local wildlife tourism.
• Option 2: extending licensing to all year round should reduce the potential risk of any impacts on wildlife tourism; i.e. the Moray Firth seal Management Plan takes account of local tourism interests through the licensing process.
• Option 3: restricting and redefining the netsmen's defence in areas covered by seal conservation orders will perhaps have some benefits for tourism but on a much smaller scale than those arising from Option 2 and it will carry risks like the no change option.
• Any option which results in significantly greater numbers of seals being killed may have a detrimental impact on the revenue of the tourism industry.
• Option 4: recreational fisheries are of important economic value to the Scottish economy. For example, sea angling created a net annual expenditure of £15.6 million in the Highlands and Islands in 2003 ⁴⁶. The potential impacts of removing all legal options to manage seals populations will include increased predation on wild fish stocks and/or increased risks to wild fish populations through seal-related damage to fish farms and consequent escapes of farmed fish (see Environmental Costs). Any negative impacts on native fish populations could potentially impact on the economic value of these fisheries. In addition, alternative non-lethal predator controls, to protect fisheries from seal damage and predation, include Acoustic Deterrent Devices ( ADDs), some of which may affect the behaviour of seals and/or cetaceans ⁴⁷. This could potentially impact on wildlife-related tourism if it caused avoidance by seals, whales, dolphins and/or porpoises of areas popular for wildlife watching. It is not possible to assess the potential risk this may present to tourism until further research on non-lethal predator defences has been conducted.

Environmental Costs

Extension of licences to fish farms, considered under Options 2 and 3 and the extension year round under Option 2 will result in an increased number of seals shot under licence. It is, however, not possible to assess whether or not the total numbers of seals shot may increase because of the lack of precise information on the numbers of seals shot outside close seasons or outside areas covered by seal conservation order.

The loss of any animal represents an environmental cost. An ecosystem services approach that analyses the non-use benefits of ecosystem components may provide some direction here, however, the science and understanding behind this approach is still developing. Currently it is impossible to put an economic value on the contribution that a single seal makes to the marine environment and in the support of ecosystem services. Qualitative values may be noted in regard to aspects such as food web provisioning, whereby seals may play a top-down role in controlling food webs through natural levels of predation. Reduction or removal of predators has been known to have devastating consequences for other species in closely linked ecosystems (e.g. linkages between baleen whales, killer whales, seals, sea urchins and kelp forests on the North Pacific coast of America ⁴⁸)..

The removal under Option 4 of all legal options to shoot seals to protect fisheries or fish farms will result in increased damage to aquaculture cages and subsequent escape of farmed fish. In some cases this may be reduced by use of non-lethal predator defences, but these are not necessarily practical or effective in all cases and in others cannot be used because of potential impacts on other species. There is likely to be an increased risk to wild fish populations through increased numbers of escapes from fish farms resulting in the spread of disease, compromises to genetic integrity (resulting in a reduced fitness to survive in the wild) and increased competition amongst wild fish populations

Social Costs

Some surveys indicate that approximately 70% of the public in Scotland think it should be illegal to kill seals (Parsons, 2003; Scott, N.J. & Parsons, E.C.M. (2001). This suggests that under all the options there will be continued impacts on social values, but Option 1 potentially minimises these.

6.9.5 Summary

Table 6.17 summarises the impacts of the different options for seal licensing and conservation.

Table 6.17: Summary of the Impacts of Options for Seals Licensing and Conservation1

6.10 Integration of Historic Environment Site Protection

6.10.1 Introduction

The UK is party to the European Convention on the Protection of the Archaeological Heritage, known as the 'Valletta Convention', which requires that the historic environment, on land and underwater, is protected and that change is undertaken on the basis of sound evidence. If Scottish Ministers did not carry out these duties the UK would be in breach of its international obligations.

The information in this section is based upon a separate marine consultation undertaken by Scottish Ministers on the detailed proposals for historic environment site protection as part of the Scottish Historic Environment Policy ( SHEP) series.

6.10.2 Options

There are two options available to Scottish Ministers; 'no change' (Option 1) and Option 2, implementing a new system of historic marine protected areas ( MPAs) out to 12 nm.

Option 1

Main features

Scottish Ministers (through Historic Scotland) already have legislation in place to protect marine historic assets out to 12 nm. Under this option, there would be no change to current arrangements. Scottish Ministers through Historic Scotland would continue to apply the Protection of Wrecks Act 1973 ('the 1973 Act') and Ancient Monuments and Archaeological Areas Act 1979 ('the 1979 Act'). At present in Scottish waters, there are eight wrecks designated under the 1973 Act and 7 underwater scheduled wrecks under the 1979 Act.

Potential risks

Responses to the UK-wide review by DCMS and the devolved administrations Protecting the Marine Historic Environment Making the System Work Better suggested that many in the heritage sector consider that existing mechanisms for protecting the marine historic environment are insufficient. Responses indicated concerns about the inflexibility of the licensing mechanisms (under the 1973 Act) - these require a licence from Scottish Ministers merely to dive on a 'look but don't touch basis' on an important but relatively robust historic wreck - and about the limitations of the Protection of Wrecks Act 1973 - it can only be used to protect shipwrecks, thereby under-representing the full range of marine historic assets that exist on the seabed. Historic Scotland's experiences in Scapa Flow with application of the 1979 Act underwater have also pinpointed difficulties with scheduling, in particular, an explicit 'defence of ignorance' and doubt as to whether the recovery of artefacts loose on the surface of a wreck or the seabed could be successfully challenged under the legislation. Under this option, Scottish Ministers through Historic Scotland would continue to apply legislation that is widely considered ineffective and burdensome. Stakeholders with a legitimate interest may continue to experience dissatisfaction with existing provisions.

At a time when Scottish Government is developing a new marine management system and new mechanisms are being adopted for marine planning and nature conservation, retention of existing historic environment protection mechanisms at sea may no longer easily conform to wider Scottish Government policy and may lead to a degree of confusion for government, sea-users and industry.

The UK Government remains committed to bringing forward improvements in England and Wales through the Heritage Protection Bill as soon as parliamentary time allows. If Scotland does not follow suit, Scottish Ministers through Historic Scotland will continue to apply the same legislation as it does at present.

Option 2

Main Features

This option would involve implementing a new system of historic marine protected areas ( MPAs) out to 12 nm (no such mechanism is proposed under the UK Marine Bill for 12-200 nm). This mechanism will involve a discretionary power for Scottish Ministers to designate a MPA for the purpose of protecting marine historic assets of national importance.

Once the new legislation is in place, Scottish Ministers have indicated that it would not be their intention to significantly or rapidly increase the number of designated marine historic assets, but rather to improve the effectiveness of the law to safeguard Scotland's most important marine historic assets for future generations. The mechanism will allow Scottish Ministers to protect a broader range of historic assets than is possible under existing legislation. It will also be possible to tailor controls more effectively by an assessment of the threats to each specific site, avoiding burdensome licensing where at all possible.

The protection of the remaining seven wrecks of the German High Seas Fleet scuttled in Scapa Flow in 1919 provides a useful example of how this new legislation could help to improve effectiveness and streamline administration for regulators and stakeholders. These scheduled monuments could instead be designated as historic MPAs, with the effect that there would be no defence of ignorance, or doubt as to whether recovery by divers of loose artefacts from the seabed could be challenged under the law. Additionally, dive boat owners would not have to apply for a licence for their visitors simply to dive on a 'look but don't touch basis.'

Potential risks

The approach proposed has not been tried in relation to historic environment protection. Therefore, if the proposed legislation does not itself prove to be fit for purpose, then it is possible that the intended clearer structure for the protection of the marine historic environment will not be put in place. However, this risk can be mitigated to a certain extent by Historic Scotland working closely with those responsible for management of the marine environment (potentially Marine Scotland - see Section 8) to ensure that there is consistent and transparent implementation of this new legislation, that clear guidance is developed to accompany the new provisions and that this guidance is widely promoted to existing stakeholders.

There is a risk that the approach proposed will result in some divergence with mechanisms elsewhere in the UK. To a certain extent, this can be mitigated by continued close liaison between Historic Scotland and officials from Department of Culture Media and Sport, English Heritage, CADW (Wales), and Do ENI (Northern Ireland), through the forum of the UK-wide Advisory Committee on Historic Wreck Sites.

6.10.3 Sectors and Groups Affected

There are many diverse groups with a legitimate interest in the marine historic environment and who may be affected by protection of historic assets. The key stakeholders are likely to include marine renewable energy, fisheries (finfish and shellfish), ports and harbours, aquaculture, oil and gas extraction and related pipelines, telecommunication and power cables, sand and gravel extraction, recreational diving groups, and diving tourism operators.

A range of public bodies accountable to Scottish Ministers might have a specific interest or role under these options - they include Historic Scotland, the Royal Commission on the Ancient and Historical Monuments of Scotland, and local authorities through their historic environment advisory services.

6.10.4 Benefits

Option 1

There will be no new benefits associated with this option.

Option 2

Under this option, a broader range of marine historic assets will be eligible for protection, better reflecting Scotland's marine historic environment.

Sea-users applying for authorisation under the new system could benefit through being able to apply for licences that cover a range of activities and multiple persons, or (in the case of diving on a robust historic wreck designated as a historic MPA) not having to apply for a licence at all to dive 'on a look but don't touch basis'. It is also likely that the need for repeat applications is greatly reduced. These simplification measures are likely to be beneficial to sustainable economic growth in the tourism sector.

By adopting a more integrated approach with that proposed for nature conservation, there may be additional opportunities for integration in matters such as enforcement at sea, as well as any consent work, reporting to parliament and consultation. This simplification may result in efficiency savings and a more effective, clearer system for industry and sea-users. It has not however been possible to quantify these benefits.

6.10.5 Costs

There are two main areas to be considered in assessing the costs of implementing marine historic environment site protection options:

• the costs (mainly to government) of assessing, implementing, promoting, supporting and monitoring a designation programme (direct costs); and
• the costs to industry and sea-users in relation to designated historic assets (indirect costs).

Direct Costs to Government

There are direct costs to government associated with ongoing delivery of Option 1. Historic Scotland has limited access to a UK-wide field contract for archaeological services in support of the Protection of Wrecks Act 1973. The current contract is likely to ends in March 2011. Due to the contractor's responsibilities elsewhere in the UK, a supplementary cost to Scottish Government is deemed to be necessary in order to maintain a minimum credible level of service from April 2011 and to allow timely and adequate responses to ad-hoc discoveries of important new sites and for monitoring existing designated assets. The numbers of designated historic assets is likely to increase very gradually. Given the small scale of designated historic assets, it is not envisaged that there will be significant additional indirect costs to sea users and industry compared with what is the case at present.

Under Option 2, Scottish Ministers have indicated that their intention is not substantially or rapidly to designate large numbers of new sites offshore. However, under this option, a wider range of marine historic asset types will be eligible for designation, in order to reflect the full range of historic assets that exist offshore. Based on levels of knowledge and the history of designation strategy to date, Historic Scotland has indicated that the existing 15 designated assets offshore might double in number over ten years. Implementing the new provisions at a minimum credible level is likely to incur one-off transitional costs of £25,000 in 2010-11 and 2011-12, over and above required expenditure using existing mechanisms. This will allow existing designated wrecks and underwater scheduled monuments to be re-designated under the new system. The support structures envisaged in Option 1 would also be in place under Option 2.

The costs to Government under the two options are summarised in Table 6.18

Costs to Industry and Other Sea Users

There will be no new costs to industry and other sea users under Option 1, although the existing costs and uncertainties will remain.

Under Option 2, as at present, historic MPAs are likely to continue to be small in size, usually focussed around one specific archaeological site (although there is some potential for groups of assets, e.g. the existing scheduled wrecks in Scapa Flow,) to form one slightly larger protected area). Given the small scale of these MPAs, it is not anticipated that there will be significant additional costs to sea users and industry compared to Option 1. Indeed, by relaxing requirements to obtain licences for all marine historic assets for 'diving on a look but don't touch basis', there should be cost savings and new opportunities for sustainable tourism. Historic Scotland has not, however, been possible to quantify these costs and savings.

6.10.6 Small/Micro Firms Impact Assessment

Under Option 1, the continued requirement for visitor licences under the Protection of Wrecks Act 1973 will have an impact on small firms.

Under Option 2, the intention is to reduce the regulatory burden as much as possible and this should reduce costs for small firms, such as charter boat diving operators, in terms of administration and effort. Beyond that, the controls in place on historic MPAs are more likely to result in modifications to activities, rather than preventing them from taking place.

6.10.7 Competition Assessment

Under Option 1, there is a risk that retention of a licensing system under the Protection of Wrecks Act 1973 could continue to generate competitive conflicts between sea-users who have similar interests in designated wreck sites.

Changes to the management mechanisms proposed under Option 2 are likely to resolve these issues. Historic Scotland is not aware of any other competition impact under either of these options.

6.10.8 Enforcement, sanctions, monitoring

Decisions on licensing will continue to be made on the basis of field assessment and informed professional judgement by Historic Scotland. Compliance will be tested in the same manner as now, that is, through reporting and inspection. Historic Scotland will continue to lead on this area of work though there may be opportunities for close cooperation with Marine Scotland to improve the effectiveness of enforcement at sea.