Dredging exemptions to Marine (Scotland) Bill?

Its purpose, as outlined in the Bill’s own notes, is to ‘create a new system of marine planning to manage the competing demands of the use of the sea whilst protecting the marine environment.’

The Scottish Bill legislates for activities in the marine environment from 0 to 12 nautical miles. The UK Marine and Coastal Access Act 2009 (the Act) has enabled Scottish Ministers to exercise powers in relation to marine planning, licensing and nature conservation in the Scottish offshore region of 12 to 200 nautical miles. Read together, the Act and the Scottish Bill provide Scottish Ministers with the powers to create plans and license activities in the range of 0 to 200 nautical miles.

The Scottish Bill will introduce a system of licensing and will enable the establishment of Marine Protected Areas (MPAs), with special enforcement powers to ensure compliance with the new licensing and conservation regulations. The marine planning and licensing areas covered by the new Bill include the waters of ‘every estuary, river or channel so far as the tide flows at mean high water spring tide’. It is the intention however that up river fresh water will not be included in a MPA. Those areas will be dealt with as different types of protected areas known as Sites of Special Scientific Interest.

Various submissions by interested parties were provided during the consultation process, two of whom were the British Ports Association (BPA) and Forth Ports.

In their written evidence the BPA makes the very practical point that ports are the service bases for the offshore energy and fishing sectors. The increase in activity in the renewables sector will also impact on the growth of the services provided by Scottish ports. Although the activities in relation to oil, gas, telecoms and shipping are reserved (ie, still controlled by the UK government), the ability to provide a strong support network from the port bases in Scotland may depend on the new powers under the Scottish Bill and the Act.

One of the key issues raised by the BPA was the effect of the proposed extended licensing regime for dredging and how this will impact on port operations. Forth Ports’ written submissions outlined their position that a harbour authority needs to remain in control of dredging. As a statutory harbour authority has a statutory duty to keep channels safe for navigation, they therefore posed the question, ‘is it right to legislate for a harbour authority to require a licence for an activity they have a legal obligation to undertake in the pursuit of safe navigation?’

Both Forth Ports and the BPA highlighted that maintenance dredging should be exempted under the Scottish Bill. Richard Lochhead, the Cabinet Secretary for Rural Affairs and the Environment, responded on 8 September 2009 stating that it is not the intention of the Scottish Bill to interfere with statutory maintenance which uses ‘well established dredging techniques’. He also stated that appropriate provisions can be made in the planned exemptions order. It will remain to be seen how ‘well established dredging techniques’ are defined but the Committee Report accepts that those in the port sector would ‘appreciate having sight of the detail of any proposed exemptions well in advance of the Scottish Bill’s implementation’.