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Chapter 13 Marine Mammals

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Chapter 13 Marine Mammals Neart na Gaoithe Offshore Wind Farm Environmental Statement Chapter 13 Marine Mammals 3 There are also a number of published guidance documents providing information on impact assessments that 13.1 Introduction have been used to inform the marine mammal chapter including: 1 This chapter presents the results of site-specific surveys and additional work undertaken by the developer to European Guidance on wind energy development in accordance with European Union (EU) nature legislation provide information on marine mammals to support the application. In addition, the results of the environmental (European Commission (EC), 2010); impact assessment (EIA) undertaken on marine mammals based on the proposed activities, including construction, operation and decommissioning are detailed. Finally, it outlines potential mitigation and Oslo Paris Convention (OSPAR) Guidance on Environmental Considerations for Offshore Wind Farm monitoring measures that may be undertaken in the event of consent being granted. Development (OSPAR, 2008); Natura 2000 Conservation Guidelines on Offshore Wind Farm Development (Defra, 2005); 13.2 Legislation and Guidance Scottish Natural Heritage (SNH) Guidance on Habitats Regulation Appraisal (Tyldesley and Associates, 2010); 2 Marine mammals are protected under a range of national and international legislation, details of which are The protection of European protected species (EPS) from injury and disturbance. Guidance for the marine presented below (refer to Table 13.1). Chapter 11: Nature Conservation provides further details on wider area in England Wales and UK offshore marine area (Joint Nature Conservation Committee (JNCC), 2010a); legislation associated with species and habitats of nature conservation importance. Statutory nature conservation agency protocol for minimising the risk of injury to marine mammals from Legislation and guidance Species/group piling noise (JNCC, 2010c); and European Council Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora (Habitats Directive) All cetaceans, grey and harbour seal. Institute for Ecology and Environmental Management (IEEM) Guidelines for Ecological Impact Assessment in (as amended) Britain and Ireland (Marine and Coastal) (IEEM, 2010). Conservation (Natural Habitats, &c.) Regulations 1994 (as All cetaceans, grey and harbour seal. amended) (Habitats Regulations) 13.2.1 Habitats Directive Marine (Scotland) Act 2010 All seals. 4 All species of cetacean are listed on Annex IV of the Habitats Directive. The Habitats Directive provides that those Offshore Marine Conservation (Natural Habitats, &c.) All cetaceans, grey and harbour seal. species listed in Annex IV are to be offered strict protection from all forms of deliberate capture or killing; Regulations 2007 (as amended) (Offshore Marine Regulations) deliberate disturbance, particularly during the period of breeding, rearing, hibernation or migration; and Nature Conservation (Scotland) Act 2004 All cetaceans. deterioration or destruction of breeding sites or resting places. There is also an obligation to establish a system Wildlife and Countryside Act (WCA) 1981 (as amended) All cetaceans. to monitor incidental capture and killing of cetaceans. UK Biodiversity Action Plan (UKBAP) 1994 All cetaceans. 5 The Directive also provides for the establishment of a EU wide network of nature conservation sites (the Natura Convention on International Trade in Endangered Species of Wild All cetaceans. 2000 network). The habitats of species listed on Annex II (which include bottlenose dolphin, harbour porpoise, Fauna and Flora (CITES) (as amended) grey seal and harbour seal) require the designation of Special Areas of Conservation (SAC). Both the grey seal and Convention on the Conservation of European Wildlife and All cetaceans, grey and harbour seal. harbour seal are protected from wild takes due to their inclusion on the list in Annex V of the Directive. Further Natural Habitats (Bern Convention) information on the Habitats Directive and its implementation in Scotland is presented in Chapter 11: Nature Convention on the Conservation of Migratory Species of Wild All cetaceans. Conservation. Animals (CMS or Bonn Convention) Agreement on the Conservation of Small Cetaceans in the Baltic 13.2.2 Habitats Regulations and Offshore Marine Regulations and North Seas (ASCOBANS) – amended in 2008 to the All small cetaceans regularly occurring in the Baltic, North East Agreement on the Conservation of Small Cetaceans of the Baltic, Atlantic, Irish and North Seas. 6 The Habitats Directive has been transposed into Scottish law through the Conservation (Natural Habitats, &c.) North East Atlantic, Irish and North Seas Regulations 1994 (as amended in Scotland) which implements the species protection requirements on land and Bowhead whale, Balaena mysticetus , Northern right whale, Convention for the Protection of the Marine Environment of the inshore waters (0-12 nautical miles (NM)). Beyond 12 NM, the Offshore Marine Regulations implement the Eubalaena glacialis, blue whale, Balaenoptera musculus, and Northeast Atlantic (OSPAR Convention) species protection requirements of the Habitats and Birds Directives. harbour porpoise, Phocoena phocoena. 7 The Habitats Regulations and the Offshore Marine Regulations provide protection for European protected species Table 13.1: Summary of national and international legislation and guidance relevant to marine mammals (EPS) which are those species listed in Schedule 2 and 4 of the Habitats Regulations and Schedule 1 of the Offshore Marine Regulations and include cetaceans (whales and dolphins). Page 13-1 Neart na Gaoithe Offshore Wind Farm Environmental Statement 8 Regulation 39 of the Habitats Regulations and the Offshore Marine Regulations provide protection to EPS by beneficial consequences of primary importance for the environment and may apply to certain renewable projects making it an offence to harm such species. Regulation 39(1) of the Habitats Regulations provides that “it is an (Marine Scotland, 2012). offence, with certain exceptions, to: 15 An activity that might otherwise constitute an offence may only be granted a licence if it can be demonstrated (a) deliberately or recklessly to capture, injure or kill a wild animal of a European protected species; that by granting the licence the licensing authority remains fully compliant with the requirements of the Habitats Regulations. In order to achieve this it must be demonstrated that: (b) deliberately or recklessly The activity is one of the licensable purposes listed in Regulation 44; (i) to harass a wild animal or group of wild animals of a European protected species; There is no satisfactory alternative; and (ii) to disturb such an animal while it is occupying a structure or place which it uses for shelter or protection; That the action authorised will not be detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range (SNH, 2012a). (iii) to disturb such an animal while it is rearing or otherwise caring for its young; 16 It is predicted that should consent be granted under Section 36 for the proposed development an application for (iv) to obstruct access to a breeding site or resting place of such an animal, or otherwise to deny the a European protected species Licence will be required as all species of whale, porpoise and dolphin are listed animal use of the breeding site or resting place; under Annex IV of the Habitats Directive (SNH, 2012a). (v) to disturb such an animal in a manner that is, or in circumstances which are, likely to significantly affect the local distribution or abundance of the species to which it belongs; 13.2.4 Favourable Conservation Status (vi) to disturb such an animal in a manner that is, or in circumstances which are, likely to impair its 17 Favourable conservation status (FCS) is defined in Article 1 (i) of the Habitats Directive as follows (and FCS for ability to survive, breed or reproduce, or rear or otherwise care for its young; or marine mammals species is shown in Table 13.2 below): (vii) to disturb such an animal while it is migrating or hibernating; […] “Conservation status of a species means the sum of the influences acting on the species concerned that may affect the long-term distribution and abundance of its populations within the territory referred to in Article (c) to damage or destroy a breeding site or resting place of such an animal.” 2. The conservation status will be taken as ‘favourable’ when: 9 In addition, Regulation 38(2) of the Habitats Regulations expressly states that “it is an offence to deliberately or Population dynamics data on the species concerned indicate that it is maintaining itself on a long-term recklessly disturb any dolphin, porpoise or whale (cetacean)”. basis as a viable component of its natural habitats; 13.2.2.1 Deliberate Injury Offence The natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable 10 The term “deliberate” has been interpreted as including indirect but foreseeable actions and the deliberate injury future; and offence has been interpreted as occurring if a cetacean receives a sound exposure level, which may cause There is, and will probably continue to be, a sufficiently large habitat to maintain its populations on a permanent threshold shift in hearing (JNCC, 2010a). long-term basis.” 13.2.2.2 Disturbance Offence Species FCS assessment ‘Regional’ population 11 A disturbance
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