Summary of responses
Updated 22 December 2021
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This publication is available at https://www.gov.uk/government/consultations/marine-protected-areas-guidance-for-developing-compensatory-measures/public-feedback/summary-of-responses
1. Executive summary
Our marine environment faces increasing pressure from human activities and climate change. Defra wants to ensure that clear protection is afforded to the unique habitats, species and features that form our marine protected area (MPA) network. The UK has committed to ensure the marine environment remains healthy, safe, productive, and biologically diverse. One way in which Defra does this, is with a network of MPAs.
Defra is the lead government department with responsibility for protecting and enhancing the marine environment in English inshore and offshore waters, fulfilling objectives in the government’s 25 Year Environment Plan, and delivering commitments under the UK Marine Strategy to achieve ‘Good Environmental Status’ in our waters.
Our marine environment needs protecting, as it is vital to the UK population and the UK economy. A balance is needed in supporting sustainable industries while maintaining and increasing protections for our sea to ensure a healthy, resilient, and biodiverse marine ecosystem.
On 22 July 2021, Defra launched the consultation on draft for developing compensatory measures in relation to MPAs. This was open for 10 weeks and closed on 30 September 2021.
Defra has developed this guidance as a framework to enable developers to consider how to implement the requirements of the Conservation of Habitats and Species Regulations 2017 and the Conservation of Offshore Marine Habitats and Species Regulations 2017 (together, the habitats regulations), and of the Marine and Coastal Access Act 2009 (MCAA), where developments may or will have an adverse effect on MPAs. The aim is to provide clarity on the government’s expectations of marine industries, advisors, and regulators.
Compensatory measures are practical measures that can be taken either in the vicinity of the site or offsite in order to offset the negative effects of a development. The intention is to maintain the overall ecological integrity of the domestic network of MPAs. The purpose of compensation is to ensure the baseline condition of precious protected features is upheld in order to ensure marine conservation objectives are not hindered; this is distinct from ‘net-gain’ which adds to the overall condition and/or integrity of the network. Strategic compensation applies these principles on a larger scale at the planning stage, for example to geographic areas such as the Round 4 bidding regions or for entire populations of protected species such as the migratory seabird, the Kittiwake. An example of a compensation measure to offset damage to the seabed might be to restore an area with seagrass.
The consultation sought views on advice to develop project-level compensation measures, a future approach to strategic compensation, and how net gain and compensation can work together to deliver the best outcomes for the marine environment. Specifically, the consultation requested views on:
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hierarchy of measures
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location
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ratios
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additionality
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timing
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new MPAs
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cumulative impacts and strategic compensation
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marine net gain
Defra received 35 responses to the consultation from a diverse stakeholder group, including: the oil and gas industry, environmental non-government organisations, fishing organisations, government departments, offshore wind, port authorities, local authorities, environmental consultancies, advisory groups, and individuals. The broad range of respondents provided a rounded opinion on the proposed guidance.
Responses received identified several areas of good practice both within, and outside, the guidance document. A full government response will follow in spring 2022, and after considering responses carefully, Defra will outline key changes made to the draft guidance in response to the consultation.
This document provides a summary of responses received to the consultation and sets out the next steps Defra will take to respond to the findings.
2. Introduction
2.1 Policy background
The UK has a commitment to protect the marine environment with a network of well managed MPAs.
The territorial application of this guidance is those waters in which the Secretary of State and/or the Marine Management Organisation has powers in relation to site management; those being English inshore and offshore waters and with regards to devolved waters subject to devolution agreements. Marine conservation is an area of devolved responsibility and the guidance does not extend to waters where the Devolved Administrations have competence for MPAs.
In English inshore and offshore waters, the Defra Secretary of State designates the various types of MPA: Marine Conservation Zones (MCZs) under MCAA and Special Areas of Conservation (SACs) and Special Protection Areas (SPAs) pursuant to the Habitats Regulations. Together with marine elements of Sites of Special Scientific Interest (SSSIs), these form an ecologically coherent network of MPAs. The purpose of these designations is to restore, preserve and maintain biodiversity by protecting key habitats and species.
Public authorities with decision making powers (here, referred to as responsible authorities) must assess the impact, either alone or in combination, on MPAs of any plans or projects before consenting to them. For MCZs, the responsible authority may not give consent unless it is satisfied either there is no significant risk of the plan or project hindering the achievement of a site’s conservation objectives or, if it is not so satisfied, that other conditions are met. For SACs or SPAs, the responsible authority may give consent to any plan or project only after having ascertained that it will not adversely affect the integrity of the site.
The habitats regulations (SI 2017/1012 regulation 64(1); SI 2017/1013 regulation 29(2)) provide for a “derogation” for SACs and SPAs where “there are no alternative solutions, but the plan or project must be carried out for imperative reasons of overriding public interest (IROPI), the responsible authority may agree to the plan or project notwithstanding a negative assessment of the implications for the SAC or SPA”. In such a case, the responsible authority must secure any necessary compensatory measures to ensure that the overall coherence of the SAC and SPA network is protected. A similar process, applies to MCZs in cases where “the applicant satisfies the authority that there is no other means of proceeding with the plan or project which would create a substantially lower risk of hindering the achievement of the conservation objectives of the MCZ, that the benefit to the public of proceeding clearly outweighs the risk of damage to the environment, and that the applicant will undertake, or make arrangements for the undertaking of, measures of equivalent environmental benefit (MEEB) to the damage caused or likely to be caused to the MCZ”. The responsible authority should also have regard to the UK’s commitment to achieve Good Environmental Status under the UK Marine Strategy.
To date, compensatory measures (including MEEBs) have been used rarely in the marine environment to consent a development or activity. While we continue to expect development to avoid all impacts on MPAs in the first instance, given the increased pressures on the marine environment from various activities, including the government’s ambition to secure 40GW of offshore wind power by 2030, it is likely that the process of securing compensatory measures will be invoked by developers more frequently in the future. Uncertainty about how compensatory measures should be developed is one of the barriers causing delays in the consenting process for offshore wind developments, and there is a clear demand for guidance from stakeholders. This proposed guidance therefore aims to address these concerns and also help to deliver against wider government objectives by providing further clarity and guidance to streamline the planning process whilst improving the implementation of environmental regulations.
2.2 Publication date and period of consultation
The consultation was initially published on Thursday 22 July 2021, it was open for 10 weeks, and closed on Thursday 30 September 2021.
2.3 Why did Defra ask for views?
Defra wanted to hear from those that the proposed guidance is aimed to help and to check that, although there was no change to legislation, government expectations on implementing compensation measures were set out clearly and were operationally sound across marine industries.
The consultation was also used as an opportunity to obtain views that will feed into wider government work, including marine net gain and future thinking on strategic approaches to compensation.
3. Full list of questions and summary of responses
3.1 Hierarchy
To what extent do you agree with our proposed hierarchy approach for how compensatory measures should be delivered?
The MPA compensatory measures guidance sets out a preference hierarchy which considers compensatory measures on a spectrum from ‘like for like’ measures through to population and regional-based measures that focus on wider environmental benefits. The underlying principle is that compensatory measures need to benefit the same feature which is impacted by the development to recompense the damage, where it is feasible. Where possible this could include developers working with other industries and regulatory bodies to secure environmental headroom for their compensatory activities.
A high level of responses, 45%, support the proposed approach to hierarchy, and 26% disagreed. The main point raised throughout multiple responses is that the guidance should emphasise putting the strongest biodiversity outcomes first. Respondents also noted environmental headroom is an issue, and that MPA management should be prioritised over creation of headroom. Also, that habitats and species should not be seen as interchangeable. Additionally, more examples of compensation at each stage of the hierarchy were requested by many stakeholders, and links made to existing relevant work of statutory nature conservation bodies.
To what extent do you agree with our proposed hierarchy approach to how compensatory measures should be delivered? (n=31)
| Responses | Percentage of responses |
|---|---|
| Strongly disagree | 0% |
| Disagree | 25.81% |
| Neither agree or disagree | 22.58% |
| Agree | 38.71% |
| Strongly agree | 6.45% |
| Don’t know | 6.45% |
3.2 Location
To what extent do you agree with our proposed approach to location of compensatory measures?
The consultation document proposed that to increase confidence in the ability of a site to continue to meet its conservation objectives and the overall coherence of the MPA network, the public authority should consider compensatory measures by firstly benefiting the same feature within the affected site, then outside the affected site.
On the whole, respondents agreed with the proposed approach to location, with agreement sitting at 65%. Locating the compensation at the site of impact was preferred, but it was recognised this is not always possible, or that other locations could provide better outcomes. Some responses, particularly from environmental consultancies and advisory groups, highlighted the need for constant, and robust monitoring.
To what extent do you agree with our proposed approach to location of compensatory measures? (n=31)
| Responses | Percentage of responses |
|---|---|
| Strongly disagree | 0% |
| Disagree | 9.68% |
| Neither agree or disagree | 19.35% |
| Agree | 58.06% |
| Strongly agree | 6.45% |
| Don’t know | 6.45% |
3.3 Ratios
To what extent do you agree with the substance of proposed compensatory measures including ratios?
The consultation document suggested that compensatory measures must address the impact of the activity in comparable proportions depending on issues such as certainty of success, time for recovery or distance from the area of loss. Given the lack of evidence to date surrounding success of marine compensation, measures should be delivered at a ratio higher than 1:1.
A high level of responses, 45%, support the proposed approach to ratios and 25% disagreed. A high level of respondents strongly feel a ratio higher than 1:1 is necessary, and this should be based on clear and robust evidence and linked to certainty of measure to deliver.
To what extent do you agree with the substance of proposed compensatory measures including ratios? (n=31)
| Responses | Percentage of responses |
|---|---|
| Strongly disagree | 0% |
| Disagree | 25.81% |
| Neither agree or disagree | 22.58% |
| Agree | 38.71% |
| Strongly agree | 6.45% |
| Don’t know | 6.45% |
3.4 Additionality
To what extent do you agree with our approach to additionality?
The consultation document proposed that in some cases, it could be appropriate as part of a package of compensation, to improve the quality of the remaining feature such that it provides an enhanced contribution to the network of MPAs and delivers more for biodiversity. However, compensation must be additional to the normal practices required for the protection and management of the MPA.
45% of responses support the proposed approach to additionality and 25% disagreed. A high level of respondents feel strongly that further guidance on the approach is necessary, including examples of additionality in practice. Frequent requests are seen to provide clear definitions.
To what extent do you agree with our approach to additionality? (n=31)
| Responses | Percentage of responses |
|---|---|
| Strongly disagree | 0% |
| Disagree | 25.81% |
| Neither agree or disagree | 22.58% |
| Agree | 38.71% |
| Strongly agree | 6.45% |
| Don’t know | 6.45% |
3.5 Timing
To what extent do you agree with the timing requirements set out in the guidance for the delivery of compensatory measures?
The consultation document proposed a protected feature should not be impacted before compensatory measures are secured. Ideally, measures should be in place, functioning and contributing to the network before any development or activity begins.
While the majority of responses (45%) support the proposed approach to the timing requirements and recognised need for flexibility at times, a moderate disagreement level is also recognised, at 25%. A wide range of respondents agree that compensation needs to be in place before impact occurs, including environmental non-government organisations, environmental consultancies and advisory groups, local authorities, oil and gas and port authorities.
To what extent do you agree with the timing requirements set out in the guidance for the delivery of compensatory measures? (n=31)
| Responses | Percentage of responses |
|---|---|
| Strongly disagree | 0% |
| Disagree | 25.81% |
| Neither agree or disagree | 22.58% |
| Agree | 38.71% |
| Strongly agree | 6.45% |
| Don’t know | 6.45% |
3.6 New marine protected areas
Recognising the challenges outlined in the consultation document, to what extent do you think it is appropriate to designate new MPAs or extend existing sites as a form of compensation at a strategic or project level?
As seen in the below graph, responses were spread between all response categories (strongly disagree, disagree, neither agree nor disagree, agree, strongly agree, and don’t know). Some respondents supported designation of new MPAs, however this support was caveated with feasibility of designating new MPAs at project level. Some respondents did not support new MPAs, suggesting that focus should be on ensuring existing MPAs are more effectively managed in line with current marine conservation objectives and commitments. There was some consensus that if new MPAs were to be designated it would be better to do so as part of a strategic approach.
Recognising the challenges outlined in the consultation document, to what extent do you think it is appropriate to designate new MPAs or extend existing sites as a form of compensation at a strategic or project level? (n=31)
| Responses | Percentage of responses |
|---|---|
| Strongly disagree | 19.35% |
| Disagree | 16.13% |
| Neither agree or disagree | 22.58% |
| Agree | 19.35% |
| Strongly agree | 12.9% |
| Don’t know | 9.68% |
3.7 Guidance
To what extent do you agree that the guidance provides sufficient clarity for marine industries to operate effectively whilst demonstrating due regard for the marine environment?
42% of respondents disagreed, with 35% agreeing. The comments indicate that respondents feel the guidance is potentially unclear on specific measures for mitigation and compensation, and users want more detailed definitions and advice in order to operate effectively. The differences of requirements for MCZs, SACs and SPAs also has the ability to cause uncertainty. Further detail is requested, such as enhanced definitions and successful examples of compensation, in order to provide sufficient clarity for users of the guidance. We will provide this guidance in the amended guidance document, by the end of March 2022.
To what extent do you agree that the guidance provides sufficient clarity for marine industries to operate effectively whilst demonstrating due regard for the marine environment? (n=31)
| Responses | Percentage of responses |
|---|---|
| Strongly disagree | 9.68% |
| Disagree | 32.26% |
| Neither agree or disagree | 16.13% |
| Agree | 29.03% |
| Strongly agree | 6.45% |
| Don’t know | 6.45% |
3.8 Other considerations
Is there anything else that Defra should consider as a part of the compensatory measures guidance that is not already mentioned?
Responses ask that guidance include further information on how compensation interacts with net gain, and that the guidance should include examples of effective compensation tailored to the marine environment, be that benthic, pelagic or above the water.
3.9 Cumulative impacts and strategic compensation
Defra are interested to hear your views on how to consider cumulative impacts of marine activities at a scale greater than individual developments, please consider the following points in your response:
a) At what scale should this be considered (for example, regionally, nationally) and why?
b) What solutions are available to enable government to balance the needs of all industries whilst protecting the marine environment?
c) What additional steps should government take to manage the cumulative impacts of human activities on the marine environment?
Support is seen from all respondents for both regional, and national, levels of consideration for cumulative impacts and strategic compensation. Mechanisms to track gains and losses are requested, along with enhancing the robustness of monitoring.
To what extent should government consider facilitating partnerships between marine industries to address cumulative impacts on the marine environment?
Partnerships between government and marine industries were strongly supported, with respondents agreeing that government facilitated partnerships would be beneficial.
3.10 Marine net gain
What benefits are there to combining marine net gain with prospective strategic compensatory measures?
Combining net gain with compensation measures is agreed as a sensible idea for the most part, but challenges are recognised in delivering both together, including due to differences in legal standing in the marine of compensation compared to net gain.
What challenges are there to combining marine net gain with prospective strategic compensatory measures?
The challenges identified by respondents in delivering net gain and compensation together were the need to be extremely flexible, both strategically and at project level; the need to not impact on other marine industries; and set up and support of robust monitoring.
Would these challenges make combining marine net gain and strategic compensation unacceptable?
Overall, the general response was that delivering net gain and compensation together is not unacceptable, and that benefits outweigh drawbacks. However, more information regarding net gain is needed before delivering both strategic compensation and net gain in the same project is considered feasible.
Considering the exploration of the relationship between marine net gain and strategic compensation measures are there any other considerations you feel Defra should address?
Consideration of measures of ecological importance are a common theme within responses. There is also reference to the guidance needing more information on compensation, additionality, and net gain and how they interact. It is also stated net gain cannot hinder achievement of existing compensation targets.
4. Next steps
Defra thanks the respondents for their constructive and useful feedback. Responses show that the decision to consult on the draft guidance for compensatory measures was important, and reflects the difficulty and complexity government, industry, and others face in implementing compensatory measures for MPAs.
Defra will continue to pursue a broad range of policy interventions to address these challenges.
Respondents identified several areas of good practice both within, and outside, the guidance document and these recommendations will be taken forward after further consideration.
Analysis of the responses will continue in more depth over the coming months. Where appropriate, we will incorporate changes into the draft guidance with a view to publishing a final version of the guidance document and a summary of changes in spring 2022. Responses to this consultation, along with outputs from the benthic and ornithology rapid action groups, will be added to the next version of the adaptive guidance.
Defra will use this time to fully explore the more in-depth responses, and this includes further discussion with respondents where needed. Some responses will be addressed not through the guidance itself, but in wider workstreams and discussions happening across Defra and other government departments. At the time of the full government response in spring 2022, Defra will outline key changes in response to the consultation.