Information on impact assessment requirements for marine licence applications.
Marine licence applications will be assessed so that we can understand the likely impacts of the proposed activities.
Under the Marine and Coastal Access Act 2009 ch.4, S58, public authorities must make decisions in accordance with marine policy documents and if a public authority takes a decision that is against these policies it must state its reasons. MMO as such are responsible for implementing the relevant Marine Plans for their area, through existing regulatory and decision-making processes. This applies to decision-making for any activity or development which is in, or impacts, the marine environment. To enable a joined-up approach to sustainable development of the marine environment the MMO adopts a plan-led licensing approach.
Proposals should conform with all relevant policies, taking account of economic, environmental and social considerations.
The Marine Works (Environmental Impact Assessment) Regulations 2007 requires that certain types of project with the potential to significantly affect the environment have an environmental impact assessment before a marine licence decision is made.
Some specific parts of the marine area benefit from protection in law including marine conservation zones (MCZs), European protected sites and protected species’ habitats.
Laws and regulations also exist to protect the environment from particular types of harm, and these measures include the Water Environment (Water Framework Directive) Regulations 2017 and Waste (England and Wales) Regulations 2011.
An applicant must supply sufficiently high quality information to allow Marine Management Organisation (MMO) to make a decision about environmental impact. MMO can advise before you apply on the evidence required. Evidence and data used at any stage is subject to MMO quality assessment procedures.
Marine Plan Policy Assessment
A description of the overall marine licence application process is available.
MMO recommends that you discuss with us at the earliest opportunity your considerations of marine plans and policies for a streamlined consideration of your proposal.
Consideration of marine plans and policies occurs during the technical assessment stage of the application process. An internal, Marine Plan Policy Assessment will be drafted at this point. The MMO licensing team assesses all applications for a marine licence or variation of a marine licence against the marine plans and their policies.
Case teams utilise internal GIS and our online service, Explore Marine Plans to identify whether a proposal is in a specific plan area and screen the plan policies in or out of further assessment.
Explore Marine Plans can be used by applicants to provide information in support of marine licence applications to allow the assessment of the potential risk that proposals may have to marine plans and their policies, subsequently helping provide a suitable level of information for the marine licensing team to determine your application.
A proportionate approach will be taken when undertaking a marine plan assessment. The level of information required from an applicant will be equal to the level of risk the proposal presents. More information may be sought from the applicant in order for the case team to determine whether the proposal is in accordance with the marine plans.
Marine plan policies aim to meet the high level marine objectives of the plan-led system. The case team assesses the proposal’s contributions to the achievement of the relevant plan vision, objectives and policies. At the review stage, the case team considers all responses (public and consultees) in providing a finalised Marine Plan Policy Assessment.
At the application completion stage, our final Marine Plan Policy Assessment is uploaded to the public register and a determination of the license made, we also confirm the licensed application is in accordance with marine plans by way of a written statement on the cover letter of our licences.
Environmental impact assessment
If a project is likely to have a significant effect on the environment, an EIA must be carried out before a marine licence can be granted. The aims of an EIA are to protect the environment and allow the public to play a part in making decisions.
When working with other authorities, MMO will follow the principles of the coastal concordat. If a project requires both a marine licence and planning permission from the local planning authority (LPA), the MMO may issue an intention to defer letter to the LPA only if the project has been screened into EIA by the LPA. In these situations, MMO would not be able to defer to their decision and subsequently issue a marine licence decision until the LPA had made their decision regarding EIA. Please see Deferral section for more information.
MMO checks all applications to assess them for the potential to require an EIA.
Details of the different stages in the EIA process are given below. You can proceed straight to submission of a marine licence accompanied by an environmental statement. However, MMO recommends that before you apply you discuss the project with us at the earliest opportunity, and any other regulators. Advice may be offered regarding; the form of screening (i.e. by determination or by agreement), scoping, or environmental statement review.
The EIA Directive is transposed into UK law as the Marine Works Regulations 2007 (as amended) (MWR). Changes to the EIA Directive were translated into an updated MWR as of 16 May 2017. Any marine licence application received after this date will be assessed under the 2017 amendments, unless a scoping opinion request has been received by the MMO in relation to the project prior to the 16 May 2017. If a screening opinion was requested prior to the 2017 amendment regulations coming into force, the 2007 Regulations would apply to the resulting screening opinion.
There are 2 options for EIA Screening, a) Screening by Determination b) Screening by Agreement, either of which can be determined before submitting a marine licence application. A Screening Opinion or Screening by Agreement letter will always be required with any EIA project.
Activities that require an EIA are listed in Annex I of the EIA Directive and Schedule A1 of MWR, projects such as (but not limited to):
*nuclear power stations * trading ports * piers that can take vessels over 1,350 tonnes
Activities listed in Annex II of the EIA Directive and Schedule A2 of MWR require an EIA if they are likely to have significant effects on the environment. The criteria listed in Schedule 1 of MWR is used to determine if effects are significant. It is of MMO’s opinion that projects include:
- reclaiming land from the sea
- extracting minerals by dredging
- installations that produce electricity
- wind farms
- port and harbour installations not listed in Annex I / Schedule A1
- coastal work to combat erosion, for example, moles and jetties
Screening by Determination
Screening by Determination allows the MMO to assess a project and decide whether an EIA is necessary. This will result in a screening opinion being provided to the applicant. Screening by determination may be a result of a request from an applicant. Alternatively, if MMO considers that the proposed project has the potential to require an EIA, the application will be placed on hold and the applicant will be directed to request a screening opinion. MMO cannot deal with the marine licence application until the screening opinion (or screening by agreement letter) has been given.
Under MWR (Schedule 2) a request for a screening opinion must include the following information:
- chart and/or map of location of the project and the regulated activity
- description of the project, including:
- description of physical characteristics of the whole project and, where relevant, demolition works
- a description of location In relation to environmental sensitivity of areas likely to be affected
- a description of aspects of the environment likely to be significantly affected
- a description of likely significant effects of the project on the environment from:
- expected residues, emissions and waste *use of natural resources, in particular soil, land, water and biodiversity
- any other information or representations the applicant wishes to provide/make, including description of any features of the project or measures envisaged to avoid/prevent what otherwise significant adverse effects on the environment.
At this stage (screening by determination), consultation with any other bodies will not be undertaken, a decision will be made internally by MMO unless specific additional expertise is required to determine if a project falls into EIA. We will aim to issue our Screening Opinion within 8 weeks of validation of a submitted application. You can apply for a screening opinion through MMO’s Marine Case Management System.
Screening by Agreement
MMO and the applicant may wish to Screen by Agreement. This is possible where there is little ambiguity of a project having significant effects on the environment and falling into Schedule A2 of MWR. As such, by-passing the assessment required for the screening by determination process.
Scoping opinion (optional)
If your project requires an EIA, you may wish to agree with MMO the extent and content (scope) of the assessment that will take place. Thereby helping to front-load considerations and minimise likelihood of requests for information at a later stage.
If you requested a scoping opinion this must include:
- a chart, plan or map sufficient to identify the location of the activities during the project
- a brief description of the nature and purpose of the project and its possible effects on the environment
- information about any related applications to another authority
- consideration of the following topics:
- biodiversity/nature conservation
- archaeology/cultural heritage
- air quality and climate
- water quality
- seabed/land/soil quality
- population and human health
- cumulative impacts and in-combination impacts
- risk of major accident and disaster including climate change
At this stage, MMO will undertake a 4-week consultation with primary advisors and our technical advisors to ensure that all aspects of EIA have been sufficiently covered. We will aim to issue our scoping opinion within 13 weeks from validation of a submitted request.
You can apply for a scoping opinion through MMO’s Marine Case Management System.
If a scoping opinion has been issued following 16 May 2017 any advice MUST be incorporated into the Environmental Statement (ES).
Environmental Statement Review (optional)
An applicant can request that MMO review the environmental statement before submitting your marine licence application. You can make this request through MMO’s Marine Case Management System.
Please see MMO’s licensing fee pages for information on the costs associated with MMO’s consideration of EIA.
Considering the Environmental Statement
If the project is screened in either by agreement or determination, an ES must be submitted with a marine licence application. There is no required format for the ES but it must include the information set out in Schedule 3 of MWR.
Any ES must be accompanied by a statement of professional expertise. Under MWR, additional consideration must be provided in relation to;
- population and human health
- risk of major Accident, disaster and climate change
During our EIA considerations, MMO will carry out consultation, waiting a period of 42 days for representations. At this stage a template for advertisement will be sent to the applicant detailing the publishing requirements (two newspapers for two consecutive weeks, four notices in total).
EIA Consent Decision
When reaching an EIA consent decision, MMO must take relevant legislation into account – see regulation 22 of MWR – as well as:
- the application
- the direct and indirect effects on the environment
- any further information requested from the applicant
- the outcome of dealing with representations
- representations made by consultation bodies
- consultations with authorities of other European Economic Area states
If there are no residual concerns, MMO produces an EIA consent decision which is placed on the MMO public register and sent to the applicant directly and to:
- any person who made a representation
- anyone that responded to the consultation
- the authorities of any European Economic Area state who were consulted (if any)
The EIA consent decision includes an explanation and reference to the environmental information considered. It will also set out measures:
- that must be taken to avoid, reduce and, if possible, offset the principal adverse effects of the licensed activity (mitigation measures)
- required to monitor risk or extent of negative impact, or the effectiveness of any mitigation measures
When EIA consent decision is issued to the applicant, a template for EIA consent notice will also be provided which must be published in the same newspapers as the consultation previously.
If EIA consent is given, a decision on whether to grant a marine licence can then be taken thereafter. If EIA consent is refused, the marine licence may not be granted.
Deferral of EIA Consent Decision
In line with the principles of the coastal concordat, MMO may defer an EIA assessment and subsequent decision to another appropriate authority under Article 10(1)(b)(i and ii) of MWR.
The deferral process has two stages:
an initial intent to defer letter is sent to the applicant and the other appropriate authority highlighting the possibility of deferring.
a final deferral decision is then made, if the MMO are in agreement that the assessment of the other appropriate authority is sufficient to meet the requirements of the EIA Directive in relation to the project.
MMO produces a Deferral decision on EIA which is placed on the MMO public register and sent to the applicant and to:
- the other appropriate authority who’s decision we’re deferring to;
- every consultation body that the other appropriate authority notified of its decision;
- any EEA state that the other appropriate authority notified of its decision (if relevant);
- any person/body MMO consulted as regulator under Marine and Coastal Access Act (MACAA) 2009 69(4) or 1985 Act 8(11B).
Marine conservation zone assessment
MMO will assess your licence application for impacts on MCZs.
To check whether your activity is within or near an MCZ, you can use the interactive map of marine protected areas.
Stage 1: Assessment
At stage 1, MMO considers whether there is a significant risk of the activity hindering the conservation objectives of an MCZ. If so, then you must consider whether there are other means of proceeding, like changing your methods or an alternative location. If there are no other means of proceeding then there is a stage 2 assessment.
Stage 2: Assessment
You must demonstrate that the benefit to the public of granting the licence outweighs the risk of damage to the environment and that you will carry out measures of equivalent environmental benefit to mitigate the damage. MMO will work closely with you and statutory nature conservation bodies to help to identify changes that can be made to bring an environmental benefit equivalent to the likely damage (compensatory measures). MMO may also request that you make proportionate environmental enhancement (that does not involve disproportionate cost).
Habitats Regulations assessment
The MMO, as a competent authority, will assess licence applications (and applications for variations to licences) for impacts on European and Ramsar sites (taking decisions under the Conservation of Habitats and Species Regulations 2017 or the Conservation of Offshore Marine Habitats and Species Regulations 2017) (Habitats Regulations). It is government policy that Ramsar sites are afforded the same protection as European sites. ### Overview of process
The Habitats Regulations are a step-wise assessment process for plans or projects requiring a licence from the MMO, which could have an impact on European sites.
The steps are:
Step 1 – Screening for Likely Significant Effects (LSE) Step 2 – Appropriate Assessment and the Integrity Test Step 3 – Alternative Solutions Step 4 – Imperative Reasons of Overriding Public Interest and Compensatory Measures
Information required in your application
The applicant must provide sufficient information to allow the MMO to undertake the necessary Habitats Regulations Assessment. This will include:
- the location of the project in relation to any European site(s)
- the interest features and conservation objectives of the European site(s)
- an indication of the means by which the plan or project could impact upon the conservation objectives and designated features of the site and a description of any such effects
- the potential for in combination effects with other plans or projects
- any proposed mitigation measures
Step 1 – Screening for Likely Significant Effects (LSE)
The MMO will assess whether the proposed project will have an LSE (either alone or in combination with other plans or projects) on a European site. If it is determined that there could be an LSE, then the assessment will be moved on to the Appropriate Assessment stage.
The threshold of the LSE test is a low one as its purpose is to initially assess for the risk or possibility of an effect, not to precisely establish the full extent of the effect.
‘Likely’ should be taken to mean an effect that could happen if its occurrence cannot be ruled out, based on the best available evidence.
An effect is to be considered ‘significant’ if it undermines the conservation objectives of the site.
Mitigation Measures and LSE
The judgment of the European Court of Justice in the case of People Over Wind and Sweetman v Coillte Teoranta (C-323/17) clarified that it is not acceptable for competent authorities to take into account any mitigation measures when determining whether or not a plan or project will have a LSE on a European site.
‘Mitigation measure’ should be taken to mean a measure that is specifically included in a proposal to avoid, cancel or reduce the harmful effects of the proposed project.
Characteristics of the project, such as its location and intervening physical features, are not considered as mitigation measures. Measures which have been specifically added to a plan or project to avoid or reduce harmful effects would be considered as mitigation measures.
In practice the ‘People Over Wind’ ruling means that proposed projects that were previously screened out of the need for an Appropriate Assessment at the LSE stage will now be subject to further detailed assessment in an Appropriate Assessment.
Step 2 – Appropriate Assessment and the Integrity Test
The Appropriate Assessment will assess the plan or project in more detail (either alone or in combination with other plans or projects) and its potential impact on the integrity of the protected site features. The Appropriate Assessment will take full account of the ecological needs of the features likely to be affected, the prevailing environmental conditions of the site and the formal conservation objectives of the site. It is acceptable to consider mitigation measures at this step of the process.
The purpose of the Appropriate Assessment is to determine whether an adverse effect on site integrity (AEOI) can be ruled out (the integrity test).
The integrity of a site is the coherence of its ecological structure and function, across its whole area that enables it to sustain the habitat, complex of habitats and/or the levels of populations of the species for which it was classified.
The MMO must consult the relevant Statutory Nature Conservation Body on the draft Appropriate Assessment and have regard to their view.
The MMO may then only grant the licence at this step having concluded that the proposed works will not have an AEOI, where no reasonable scientific doubt remains to the absence of adverse effects.
If it is concluded that an AEOI cannot be ruled out, the licence can only be granted if there are no feasible alternative solutions, there are imperative reasons of overriding public interest, and compensation for any impact is secured (see Steps 3 and 4 below).
Any plan or project which will result in the lasting and/or irreparable loss of habitat (regardless how small), will mean that the project is likely to have a significant effect on a European site and as such must be subject to an Appropriate Assessment. The Appropriate Assessment will take into consideration the conservation objectives of the protected site and consider a wide range of factors to determine the significance of the effect (of the loss), including the characteristics of the qualifying feature effected, such as:
- sensitivity and vulnerability to potential change
- ecological function
Step 3 – Alternative Solutions and Step 4 – Imperative Reasons of Overriding Public Interest and Compensatory Measures
The derogations recognise proposals (plans and projects) which are of a sufficient importance that they justify the possibility (or certainty) of damage to a European site. The derogation tests are sequential in nature and are considered after an Appropriate Assessment has been completed and the outcome of an Appropriate Assessment is negative, such as where it was not possible to rule out AEOI.
The application of the derogation provisions is not automatic. It is at the discretion of the MMO whether to apply the derogation provisions where it considers it appropriate to do so. Where this is the case, MMO will need to:
Be satisfied that there are no feasible alternative solutions to the plan or project.
Take a decision as to whether the plan or project must be carried out for imperative reasons of over-riding public interest (subject to certain criteria); and
Be satisfied that necessary compensatory measures which ensure that the overall ecological coherence of the protected site network have been secured.
Applicants should seek and rely on their own legal advice when considering the application of any case law in relation to their proposed plan or project.
Water Framework Directive (WFD) Regulations
The sea from the mean low water mark to 1 nautical mile from shore is protected under the WFD which requires that the project or activity does not ‘cause or contribute to deterioration in water body status’ or ‘jeopardise the water body achieving good status’.
For licence applications in this zone, MMO must make sure that the marine licence decision is compatible with the WFD and any river basin management plan.
The Environment Agency is the competent authority for the WFD and it advises the MMO on WFD issues before a licensing decision is made. Its assessments and conclusions inform the MMO decision.
The Environment Agency has published guidance about WFD assessments for activities in estuarine and coastal water bodies. This will help you prepare your marine licence application.
MMO must make sure that waste generated by the project or activity is dealt with in an environmentally friendly way before it can grant a licence. To do this it applies the waste hierarchy from the WaFD, which gives an order of preference for how waste is dealt with:
- prevention –this can include not carrying out an activity and the refusal of a marine licence
- re-use – finding an alternative, beneficial use for waste material
- recycling –this can include making high grade products from waste material
- other recovery - including treatment to alter the physical nature of the waste material
- disposal at sea – this is the last resort