In April 2008, the UK Department for Environment, Food and Rural Affairs (Defra) published a draft of the proposed UK marine bill accompanied by a policy paper. This long-awaited bill contains a variety of initiatives which, collectively, are intended to facilitate the making of long-term strategic decisions and to simplify the systems used to manage marine resources. It also contains fishery-management measures and proposals to increase access to the English coast. This briefing article describes the main measures contained in the draft bill. It then summarises the issues raised by ICE and PIANC (the Permanent International Association of Navigation Congresses) in their joint response to Defra's consultation on the draft, before looking ahead towards the publication of the final bill.
1. OVERVIEW
The UK Department for the Environment, Food and Rural Affairs (Defra) draft marine bill contains the following meaures
Creation of a new, independent, non-departmental public body, the Marine Management Organisation (MMO), which will deliver marine functions in English waters and in the offshore area around the whole of the UK.
A new marine planning system including an overarching marine policy statement (setting out high-level objectives designed to enable sustainable economic development within environmental limits) together with local/regionallevel marine plans.
Provision for improved licensing decisions through, as far as possible, a simplified and streamlined ‘one-stop-shop’ for each project.
The designation of marine conservation zones, a representative network of sites designed to protect habitats and species while taking into account environmental, social and economic criteria.
Measures to reform inshore fisheries management, replacing the sea fisheries committees with inshore fisheries and conservation suthorities, thus enhancing both conservation and management.
Reform of migratory and freshwater fisheries.
Enforcement powers for fisheries and nature conservation, and in relation to licensing legislation.
Civil sanctions for licensing and nature conservation offences; administrative penalties for domestic fisheries offences.
A duty on the secretary of state to secure a long-distance coastal route and coastal land accessible to the public.
2. COMPONENTS OF DRAFT MARINE BILL
The main contents of the draft Marine Bill are further described in the following sections.
2.1. Marine Management Organisation
A key aim of the marine bill will be to significantly improve decision making in the marine environment by providing clearer direction and more certainty to developers and marine users. It is intended to streamline and simplify existing legislation and requirements, and to reduce the number of regulatory bodies and regimes that developers have to deal with. The MMO, which will operate through a network of coastal offices, will be the marine planning body in English waters and in most offshore areas, and the UK government's regulator of most marine activities. It will make decisions according to the UK marine policy statement and regional or local marine plans, balancing environmental, economic and social interests.
It is proposed that there will be a ‘managed transition’ from the current Marine and Fisheries Agency (which in turn replaced the Marine Consents and Environment Unit) to the MMO.
There are, however, some important differences insofar as the devolved administrations are concerned. For example, Wales is to establish its own procedures and mechanisms for marine management, and the Scottish government closed its consultation on a Scottish marine bill in October 2008.
2.2. Information required in order to deliver effective marine management
The draft bill acknowledges that effective, evidence-based marine management will require appropriate scientific data and information. The MMO will need to secure access to a broad range of data types collected or held by industry, regulators and others. A strong research programme will also be a key underpinning element of the MMO's ability to make good policy and management decisions.
2.3. Marine plans
A key purpose of the proposed marine plans will be to provide a framework ‘enabling sustainable economic development of the UK marine area within environmental limits’: these plans are not therefore intended to be nature conservation plans. The ‘planning authority’ for marine plans in England will be the MMO.
Notwithstanding that the geographical limits of marine plans (regional-level plans and, possibly, more local ‘nested’ plans) are yet to be determined, it is clear that the scope of the plans will be extensive, necessarily involving a wide range of interests and associated stakeholders.
2.4. Licensing
The draft marine bill proposes that the consenting requirements of the 1985 Food and Environment Protection Act (FEPA) and the 1949 Coast Protection Act (as amended) will be consolidated and modernised into a single ‘marine licence’. There is a clear emphasis in the proposals on considering all the factors relevant to projects simultaneously, enabling a decision to be made ‘about the project as a whole’. The draft bill aims to provide a ‘one-stop-shop’ for most projects and includes the proposal (when projects are largely marine in nature) that the MMO – with the Environment Agency's consent and collaboration – will incorporate flood risk management and land drainage conditions as part of its marine licence. The provisions of the draft bill would also enable the MMO to deal with harbour revision and harbour empowerment orders along with related marine licence applications.
Licensing of the oil and gas sector would, however, remain largely outside the new system and decisions on most large offshore wind projects and many of the biggest port developments will in future be made by the Infrastructure Planning Commission (IPC; proposed by the planning bill). In these cases, the IPC would deem marine bill licences advised by the MMO as the specialist marine licensing authority. The decision to split licensing responsibility within development types in this way has, however, been criticised by the parliamentary joint committee report on the draft marine bill as undermining the one-stop-shop licensing objective.
Insofar as port and harbour interests in particular are concerned, the Marine Bill would extend regulation to all forms of dredging while not affecting ‘the rights of harbour authorities to carry out maintenance dredging where that is permitted by a local Act or Harbour Order’. Further, in situations where maintenance dredging has been ‘carried out in the same way, for many years, with little or no environmental impact’, it is proposed that collaboration between the MMO and harbour authorities, etc. might be used to establish a sound evidence base on which to exempt the ‘vast majority of such cases’ from marine licensing.
The MMO will also be able to make conservation orders (similar to byelaws) to control otherwise unregulated activities (e.g. anchoring, jet-skiing, snorkelling) out to a distance of 12 nautical miles.
The draft bill makes provision for a range of enforcement powers including licensing offences and including ‘stop’, compliance and remediation requirements.
2.5. Marine conservation zones
The draft bill provides the tools needed to designate and protect a network of marine conservation zones. Defra expects the statutory nature conservation agencies to work closely with public bodies and other stakeholders to ensure that measures are put in place to deliver the conservation objectives within these zones.
All public bodies will have a duty to exercise their functions in ways which further (or at least do not hinder) the conservation objectives set for marine conservation zones. The MMO will do this by taking account of such objectives alongside other material considerations in the planning process and when exercising licensing (and other) functions. The duty allows some degree of flexibility, for example allowing development which needs to proceed in the public interest.
2.6. Fisheries
The draft bill proposes that the existing sea fisheries committees will be replaced by ‘inshore fisheries and conservation authorities’. The latter will take over the Environment Agency's existing fisheries responsibilities and, among other things, enforce the full range of environmental legislation.
The draft bill will also modernise the tools available to the Environment Agency for the management and enforcement of salmon and freshwater fisheries, including the ability to regulate ‘historic installations’.
2.7. Enforcement
The draft bill takes the view that common and effective enforcement is essential to ensure that the rules and regulations designed to manage the marine area effectively are implemented fairly and proportionately. To this end, it is proposed that marine enforcement officers will be appointed for sea fisheries, licensing and nature conservation. Civil sanctions for licensing and nature conservation are also proposed to be introduced along with a fixed penalties scheme for marine fisheries offences.
2.8. Coastal access
On coastal access, the draft Bill proposes a right of access to the coast along with ‘spreading room’ (associated accessible land on either side of the trail). The route will be established such that it can always remain open. It will not, however, go through areas where there would be an unacceptable impact on nature conservation, or through ports or defence establishments where there are security and safety issues. Further, it is proposed that the legislation will remove occupiers' liability in respect of both natural and non-natural features (subject to the occupier not having acted intentionally or recklessly in respect of a known danger).
3. ICE AND PIANC RESPONSE TO DEFRA ON DRAFT MARINE BILL
In responding to the consultation on the draft bill, ICE and the Permanent International Association of Navigation Congresses (PIANC) welcomed the various provisions in the bill to provide clearer direction and more certainty to both developers and marine users; to streamline and simplify existing legislation and requirements; and to reduce the number of regulatory bodies and regimes that developers have to deal with. ICE and PIANC were also pleased that the following points have been included.
An acknowledgement that effective, evidence-based marine management will depend on adequate and appropriate scientific data and information.
The proposal to ensure that the MMO has access to a broad range of data types secured by industry, regulators and others (although the potential difficulties, in practice, of achieving this should not be underestimated).
The recognition that a strong research programme will also be a key underpinning element of the MMO's ability to make good policy and management decisions.
The ICE and PIANC stressed, however, the importance of government providing adequate resources to enable all functions of the MMO (licensing, planning, etc.) to operate in an optimal manner. This will be vital, not least to build and retain the confidence of industry and other stakeholders.
With regard to marine planning, the ICE and PIANC welcomed the proposed scope and focus of the Marine Policy Statement and the proposals for (nested) marine plans. It was felt, however, that greater attention will need to be paid to the considerable overlap with the EU Water Framework Directive1 river-basin-management plans in coastal and estuarine areas, and also with the future marine strategies to be prepared under the EU Marine Strategy Directive.2 Effective integration and coordination in delivery will be important to maximise opportunities and reduce duplication. ICE and PIANC similarly encouraged greater recognition of the value of ‘integrated coastal zone management’ in managing the land–sea interface.
In discussing the EU legislative framework, although the forthcoming Marine Strategy Directive is acknowledged, it is not made clear how the draft bill will enable the implementation of this directive in a ‘coherent and systematic way’, particularly given the specific requirements of the latter in respect of achieving good environmental status and so forth. Related to this, there is no specific provision in the draft bill to address the significant practical problems which could be experienced by industries operating across the boundary between marine strategies and the Water Framework Directive river-basin-management plans. Without effective coordination, operators may need to deal with different measures designed to meet different objectives, set out in different plans with different deadlines and administered by different organisations (e.g. in England and Wales the Environment Agency and the MMO).
Similarly, although the draft marine bill policy paper acknowledges the international context (UN Convention on the Law of the Sea, the Convention for the Protection of the Marine Environment of the North-East Atlantic (Ospar), the International Convention for the Prevention of Pollution from Ships (Marpol) etc.), it is not made clear how the various interrelationships will work in practice. Effective coordination with existing processes implementing such conventions will be essential in learning from experience and avoiding duplication.
Finally, the ICE and PIANC expressed their disappointment that so little progress had been possible in terms of bringing together the devolved UK administrations. Whereas it was appreciated that Defra has spent a great deal of effort on this issue, the opportunity for truly integrated management of marine resource now appears to be severely compromised.
4. WHAT HAPPENS NEXT?
A summary of responses to Defra's public consultation on the draft bill was published in September 2008 along with the government response to pre-legislative scrutiny and public consultation. In the meantime, the Marine and Fisheries Agency's August 2008 news reports that the Marine and Fisheries Agency has set up a permanent team which is continuing to move towards becoming the ‘core’ of the new MMO, although (with the bill pending) the transition is unlikely to be complete until 2010.
The ‘Marine and Coastal Access Bill’ had its second reading in the House of Lords on 15 December 2008.4
