The 2017 EIA regulations – A marine consultant’s view

Jamie Oaten and Colin Scott examine the amended Environmental Impact Assessment Directive and how it relates to marine consultancy.

On 16 May 2017, the new amended Environmental Impact Assessment (EIA) Directive (2014/52/EU) was implemented into UK law. A range of useful reviews about the changes were also released (1, 2, 3).

The screening process now requires more information to be submitted (including information about significant effects and proposed mitigation measures). This requirement seeks to ‘front-load’ the assessment process, encouraging preparation of ‘mini assessments’ and consideration of mitigation early on – providing an opportunity to avoid unnecessary EIA procedures. However, this is nothing new, as UK practice already provides such information at screening (and scoping). This is inherently valuable to manage the EIA and avoid an unnecessarily protracted EIA process based on poor early understanding and risk-averse approaches (4). Therefore, this change may not have tangible impacts on established approaches (5). In the marine environment, it can often be difficult to verify the absence of significant effects at a screening stage, and developers are not always able to commit to designs or construction methods at this early stage. One solution is to carefully define the limits within which a development will reside, in order to ensure the validity of screening (and scoping) opinions throughout the EIA process.

New environmental factors to be considered as part of EIA include human health, climate, biodiversity and vulnerability to risks of major accidents and disasters. The introduction of new topics has been the clearest change affecting marine EIAs. IEMA has produced guidance and information on human health in EIA (6), climate change adaptation and resilience (7), and greenhouse gas emissions (8). The role that coastal habitats have in human health and climate regulations is also being more clearly recognised.

Environmental Statements (ESs) must be produced by ‘competent experts/persons’, and the authority must ensure ‘sufficient expertise’ for review. A competent expert or person has not been defined in the new EIA regulations; this may only be decided once it is disputed. It seems generally accepted that membership and accreditation by professional environmental organisations will satisfy this criterion. ABPmer is a registrant of the IEMA EIA Quality Mark scheme.

Authorities must coordinate EIAs with Habitat Regulations Assessments (HRAs) where a development is subject to both the EIA Directive and Habitats Directive (92/43/EEC). The linking of EIA requirements and HRA information needs was already undertaken as good practice before the new EIA Regulations were implemented – it has long been recognised that it makes no sense to duplicate the ecological information that is needed for both assessment processes. A well-established practice, therefore, is to collate the information needed for HRAs (or Shadow Appropriate Assessments) in the form of ‘signposting documents’ that refer the reader to the location in the ES where the necessary information can be found. This amendment has not affected practice, but there is a need to be careful about distinctive considerations (such as definitions of likely significance or references to Conservation Objectives) that apply to HRA processes.

Where an EIA development is consented to, authorities can consider imposing monitoring measures. It is stated that monitoring should be proportionate to the nature, size and effects of the development, and can use existing monitoring arrangements. Planning conditions often stipulate, where necessary, that post-consent monitoring should be undertaken. This will largely satisfy this requirement; in the marine environment, monitoring is a crucial component of adaptively managing project implementation (best practice to assure absences of significant effects).

While the new EIA Regulations have been in force for a year, it is still unclear whether they are substantially affecting practice. Material changes in the way EIA is undertaken in marine consultancy are perhaps limited, as new requirements in the EIA Regulations are already done as part of good practice.

The marine environment will always present distinct challenges when it comes to determining significant effects with certainty because of the particularly complex and spatially-extensive nature of some key effects (especially for ecological features).

The new regulations and the guidance that has come with them provide some useful clarifications to the process. It is important, though, to continue developing these processes and to learn from research and good practice to make EIAs increasingly efficient and less burdensome for regulators and developers.

References:

1. http://www.quod.com/news/the-new-eia-regulations-2017/
2. https://www.iema.net/assets/uploads/Webinar%20presentations/20170516%20EIA%20Regs%20Launch%20Conf%20IEMA%20Slides_16May17.pdf
3. https://www.wyg.com/news-and-press-releases/guidance-on-2017-changes-to-eia-and-planning-regulations
4. http://www.landmarkchambers.co.uk/userfiles/TF.pdf
5. https://www.iema.net/event-reports/2017/11/16/the-uks-new-eia-regulations-learning-from-the-first-six-months-of-practice/
6. https://www.iema.net/assets/newbuild/documents/IEMA Primer on Health in UK EIA Doc V11.pdf
7. https://www.iema.net/assets/templates/documents/iema_guidance_documents_eia_climate_change_resilience_and_adaptation (1).pdf
8. https://www.iema.net/policy/ghg-in-eia-2017

Jamie Oaten is an environmental consultant at ABPmer

Colin Scott is an associate and environmental consultant at ABPmer