Environmental damage: extending the Environmental Liability Directive into marine waters

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1 Environmental damage: extending the Environmental Liability Directive into marine waters Consultation on amending the Environmental Damage (Prevention and Remediation) Regulations 2009 in England and Wales to transpose Article 38 of the Offshore Safety Directive 2013 July 2014

2 Crown copyright 2014 You may re-use this information (not including logos) free of charge in any format or medium, under the terms of the Open Government Licence. To view this licence, visit or write to the Information Policy Team, The National Archives, Kew, London TW9 4DU, or

3 Contents Scope of the consultation... 1 Introduction... 2 The proposals... 4 Enforcing authorities... 5 Operator liability... 6 Impact... 7

4 Scope of the consultation Topic of this consultation: Geographical scope: Basic Information To: Body/bodies responsible for the consultation: Duration: Enquiries: How to respond: Additional ways to become involved: After consultation: Amending the domestic legislation, in England and Wales, which transposes the Environmental Liability Directive (2004/35/EC) to take account of changes to that Directive introduced by the Offshore Safety Directive (2013/30/EU) which have extended its scope into marine waters. Territorial extent of English and Welsh marine area - maximum of 200 nautical miles offshore. All operators involved in offshore activities and other relevant stakeholders operating within the marine environment. Department for Environment, Food and Rural Affairs; Welsh Government 28 July 2014 to 21 September The consultation will run for 8 weeks in line with the UK Government s Consultation Principles published in 2012 available at Teena Patel on or via For enquiries specific to Wales: Tamsin Brown on By By post: Environmental Liability Directive Consultation, Defra, Room 631, 9 Millbank, London SW1P 3JR or By By post: Environmental Liability Directive Consultation. Marine Policy Branch, Welsh Government, Cathays Park, Cardiff CF10 3NQ This is a transposition exercise although we shall be happy to respond to any questions that you may have. Following the end of this consultation, we will retain a copy of the responses, subject to confidentiality requests, in our records. Copies of responses will be available on request. 1

5 Introduction 1.1 Defra and the Welsh Government are seeking comments on proposals to transpose Article 38 of Directive 2013/30/EU on the safety of offshore oil and gas operations (OSD) 1. Article 38 has extended the scope of the Environmental Liability Directive (2004/35/EC) 2 into the marine environment in relation to offshore waters. Defra has produced draft Environmental Damage (Prevention and Remediation) (Amendment) Regulations 2015 that will transpose Article 38 in English waters and the Welsh offshore area. Welsh Government has not yet produced draft Regulations but has set out its proposals for transposition within this consultation document. Whether it finally produces Regulations will depend on Welsh Ministers securing the necessary powers under the European Communities Act 1972 to transpose Article 38. Should this not happen, one set of Regulations covering transposition in England and Wales will be prepared. 1.2 Separate consultation exercises will be taking place later in the year on corresponding legislation in relation to marine waters off Scotland and Northern Ireland. 1.3 This consultation forms part of the wider transposition of the OSD, the principal responsibility for which rests with Department of Energy and Climate Change (DECC) and the Health and Safety Executive (HSE). A parallel consultation exercise is being run by them to transpose the rest of the OSD by the deadline of 19 July This can be found at https://www.gov.uk/government/publications?publication_filter_option=consultations 1.4 The OSD aims to reduce the potential for major accidents relating to offshore oil and gas activities and limit their impacts on the environment and coastal economies and further improve safety standards for offshore workers. It will apply to existing and future offshore installations/operations in waters under Member States jurisdiction. 1.5 Please return comments to: By By post to: Teena Patel Environmental Liability Directive Consultation Defra Room 631, 9 Millbank London SW1P 3JR Or to: By By post: Tamsin Brown Environmental Liability Directive Consultation Marine Policy Branch Welsh Government Cathays Park Cardiff CF10 3NQ 1 Directive 2013/30/EU on safety of offshore oil and gas operations and amending Directive 2004/35/EC 2 Environmental Liability Directive (2004/35/EC) 2

6 1.6 In line with Defra s and Welsh Government s policies of openness, at the end of the consultation period, we will publish a summary of the responses we receive to this consultation on If you do not consent to this, you must clearly request that your response must be treated as confidential. Any confidentiality disclaimer generated by your IT system in responses will not be treated as such a request. 1.7 Respondents should also be aware that there may be circumstances in which Defra will be required to communicate information to third parties on request to comply with its obligations under the Freedom of Information Act 2000 at 1.8 This consultation will run for 8 weeks from 28 July 2014 to 21 September

7 The proposals 2.1 Article 38 of the OSD extends the offshore scope of the Environmental Liability Directive (ELD). The ELD is transposed in England by the Environmental Damage (Prevention and Remediation) Regulations (EDR) and in Wales by the Environmental Damage (Prevention and Remediation) (Wales) Regulations (Wales EDR). The ELD already applies to, amongst other things, damage affecting protected habitats and species out to 200 nautical miles and damage to waters covered by the Water Framework Directive (WFD) (2000/60/EC) 5 which extend up to 1 nautical mile seaward from the baseline in England and Wales. 2.2 Specifically, Article 38 of the OSD amends Article 2(1)(b) of the ELD to extend, via sub-paragraph (ii) below, the geographical scope of the ELD to include damage to marine waters, as defined in the Marine Strategy Framework Directive (MSFD) (2008/56/EC) 6, thus: water damage, which is any damage that significantly adversely affects: (i) The ecological, chemical or quantitative status or the ecological potential, as defined in Directive 2000/60/EC [the WFD], of the waters concerned, with the exception of adverse effects where Article 4(7) of that Directive applies; or (ii) The environmental status of the marine waters concerned, as defined in Directive 2008/56/EC, in so far as the practical aspects of the environmental status of the marine environment are not already addressed through Directive 2000/60/EC. 2.3 Marine waters are defined in the MSFD as: (a) Waters, the seabed and subsoil on the seaward side of the baseline from which the extent of territorial waters is measured extending to the outmost reach of the area where a Member State has and/or exercises jurisdictional rights, in accordance with the UNCLOS 7, with the exception of waters adjacent to the countries and territories mentioned in Annex II to the Treaty and the French Overseas Departments and Collectivities; and (b) Coastal waters as defined by Directive 2000/60/EC, their seabed and subsoil, in so far as the particular aspects of the environmental status of the marine environment are not already addressed through that Directive or other Community legislation. 2.4 In effect, the current geographical limit to water damage will be extended beyond coastal waters covered by the WFD (up to one nautical mile seaward from the baseline in England and Wales) to cover all marine waters (as defined by the MFSD) under the jurisdiction of Member States. In coastal waters, environmental damage will also be 3 SI 2009/153 4 SI 2009/995 5 Water Framework Directive 2000/60/EC 6 Marine Strategy Framework Directive (2008/56/EC) 7 United Nations Convention on the Law of the Sea 4

8 extended to cover the MSFD descriptors not already covered by WFD (see paragraph 3.3 below). 2.5 Annex 1 contains the proposed amendments to the EDR that are necessary to make this change in English waters and the Welsh offshore area and addresses associated issues in relation to the role of enforcing authorities. We propose to amend regulations 4 and 6 of the EDR to reflect the expansion of the definition of water damage. The amendment Regulations will apply to damage to marine waters if it is caused after those Regulations come into force and will not apply retrospectively. We have not yet taken a decision on whether this change to the EDR in England will be taken forward by draft amendment Regulations or through a consolidation exercise to bring together into one legal instrument this change and other, previously made, changes to the Regulations 2.6 Welsh Government s approach is similar. It proposes that appropriate amendments are made to the Wales EDR so as to reflect the expansion of the definition of water damage made by Article 38 of the OSD. This will include amendment of the definition of water damage 8 in a similar way as that proposed for the EDR. In addition, it is proposed that the area of application 9 will be amended so as to add damage to marine waters (as defined by the MSFD) out as far as the seaward boundary of the territorial sea adjacent to Wales (12 nautical miles). Enforcing authorities 2.7 We propose to amend regulations 10 and 11 of the EDR and the relevant provisions of the Wales EDR to give effect to the following enforcing authority arrangements: For environmental damage caused by activities authorised by the Environment Agency o For those listed 10 activities requiring a permit or registration under the Environmental Permitting (England and Wales) Regulations 2010, the Environment Agency would remain the enforcing authority in respect of environmental damage to land, water (surface water and groundwater), and protected species, natural habitats or an Site of Special Scientific Interest. In addition, it will become the enforcing authority in respect of environmental damage to marine waters (out to jurisdictional limits), where activities require such a permit or registration. This fits with their current enforcement role under the Regulations. For environmental damage caused by activities authorised by Natural Resources Wales o For those listed 11 activities requiring a permit or registration under the Environmental Permitting (England and Wales) Regulations 2010, Natural Resources Wales would 8 regulation 4 of the Wales EDR 9 regulation 6 of the Wales EDR 10 See Schedule 2 of the EDR 11 See Schedule 2 of the Wales EDR 5

9 remain the enforcing authority in respect of environmental damage to land, water (surface water and groundwater), and protected species, natural habitats or an SSSI. In addition, it will become the enforcing authority in respect of environmental damage to marine waters (Welsh inshore waters, out to 12 nautical miles) where activities require such a permit or registration. This fits with their current enforcement role under the Regulations. For environmental damage in the English and Welsh marine area caused by activities not authorised by the Environment Agency or Natural Resources Wales o The Environment Agency would continue to enforce against water damage under WFD (surface waters and groundwater) up to one nautical mile seaward from the baseline in England; o Natural Resources Wales would continue to enforce against water damage under WFD (surface waters and groundwater) up to one nautical mile seaward from the baseline in Wales; o MMO would be responsible for damage which significantly adversely affects the environmental status of marine waters under MSFD out to 12 nautical miles from the baseline in England; o Welsh Ministers would be responsible for damage which significantly affects the environmental status of marine waters under the MSFD out to 12 nautical miles from the baseline in Wales; o The Secretary of State would be responsible for damage to marine waters in England and Wales beyond 12 nautical miles, out to the jurisdictional limits. 2.8 The existing Memorandum of Understanding 12 between the national enforcement bodies will be revised to reflect these new responsibilities. Question 1: do you have any comments on the way in which we propose to transpose Article 38 of the OSD as set out above? Operator liability 2.9 Under the EDR, the operator is liable for remediation of environmental damage. The definition of operator is the person who operates or controls such an activity, including the holder of a permit or authorisation relating to that activity, or the person registering or notifying such an activity. However, Article 7 of the OSD requires that the licensee is the body that should be responsible for this. We are considering whether we need to provide for a technical amendment to the EDR to ensure that the definition of operator takes specific account of arrangements offshore in respect of oil and gas operators and licensees

10 Question 2: do you have a view on whether the definition of operator under the EDR adequately captures licensees in the offshore oil and gas industries, as required by the Directive? If not, please explain your reasons. Impact 3.1 Work from the original Impact Assessment (IA) 13 when transposing the ELD suggests the following activities have the potential to cause damage in the marine environment: fisheries, shipping, activities releasing contaminants on land, contaminants from the oil and gas industries, mariculture, litter, disturbance, engineering operations and dredging and dumping. 3.2 The ELD only requires action where a business or other operator has caused or is imminently about to cause - significant environmental damage. Evidence to date suggests this happens very rarely. In the five years between 2009 and 2014 since EDR came into force, there have been only three cases of inland freshwater water damage in the UK and none in coastal waters. By comparison there are likely to be fewer applicable cases on average in the area between 1 and 200 nautical miles because of reduced levels of economic activity there and given the greater difficulty in monitoring, detecting and enforcing offshore damage. This assessment also reflects the fact that no case of damage to species and habitats in the marine environment has yet fallen under the ELD. This suggests that damage to water beyond one nautical mile might happen once in 10 years or less across the UK. More detail on this is contained within the DECC/HSE IA which accompanies the separate consultation covering the wider transposition of the OSD. 3.3 Remediation requirements under the ELD are triggered by a measurable adverse change. For waters subject to the WFD this change must be sufficient to lower the status of the water body as defined in the WFD. The concept of good environmental status contained within the MFSD is wider than that in the WFD as it includes additional descriptors relating to commercial fish, some aspects of biodiversity and the introduction of marine litter and energy (including underwater noise) 14. Adverse change in the status of a WFD water body can be more readily assessed than measuring changes to status for MSFD at the level of subregional sea areas 15. Additionally, damage to marine waters would have to be significant at the sub-regional seas scale to trigger action under the ELD. 3.4 If and where such damage does arise there are likely to be costs under existing arrangements to address the damage, depending on the nature and extent of the damage caused. Opportunities to directly and actively restore damage will be limited in the marine The 11 MSFD descriptors are: biological diversity; non-indigenous species; commercially exploited fish and shellfish; food webs; human-induced eutrophication; sea floor; hydrographical conditions; contaminants; contaminants in fish and other seafood; marine litter; and the introduction of energy (including underwater noise) 15 The sub-regional seas comprise the Greater North Sea, including the Kattegat and the English Channel; and the Celtic Seas 7

11 environment and the measures required will therefore largely be to compensate for the damage. As there may be limited opportunities to take such compensatory measures in the marine environment other appropriate measures may sometimes have to be taken elsewhere. The main costs are therefore likely to relate to paying for environmental improvements. 3.5 The guidance on the EDR and Wales EDR will be revised to reflect the extension of the scope of the ELD. Question 3: do you have any views on the likelihood of potential damage in marine waters affecting their environmental status as defined under the MSFD? Question 4: what do you consider to be the potential costs to industry should damage to marine waters occur that triggers action under the amendment Regulations? Question 5: do you have any other comments on the proposed transposition of Article 38 of the OSD? 8

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