Oil Leak 173 EPS – Part 1

As highlighted in Oil Leak 172, Marine Scotland have some comprehensive advice on EPS, catchily titled:

“The Protection of Marine European Protected Species from Injury and Disturbance – Guidance for Inshore Waters”. Published in March 2014.

Here’s what the guidance says:

Legislation in Scottish inshore waters

The Conservation (Natural Habitats, &c.) Regulations 1994 (as amended) Regulation 39 (1) makes it an offence —

(a) deliberately or recklessly to capture, injure, or kill a wild animal of a European protected species;

(b) deliberately or recklessly –

(i) to harass a wild animal or group of wild animals of a European protected species;

(ii) to disturb such an animal while it is occupying a structure or place which it uses for shelter or protection;

(iii) to disturb such an animal while it is rearing or otherwise caring for its young;

(iv) to obstruct access to a breeding site or resting place of such an animal, or otherwise to deny the animal use of the breeding site or resting place;

(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;

(vi) to disturb such an animal in a manner that is, or in circumstances which are, likely to impair its ability to survive, breed or reproduce, or rear or otherwise care for its young; or

(vii) to disturb such an animal while it is migrating or hibernating.

Due to the differing lifestyles of cetaceans and the small amount we know about them, the law gives them further protection through an additional disturbance offence.

Regulation 39(2) provides that it is an offence to –
deliberately or recklessly disturb any dolphin, porpoise or whale (cetacean).

Doesn’t say anything about “unless it is a reserved matter”. It carries on:

Considerations to exempt from the requirement of these species protection provisions are available in certain specified circumstances, provided that:

  •   there is a licensable purpose;
  •   there are no satisfactory alternatives;
  •   the actions authorised will not be detrimental to the maintenance of the population of the species concerned at favourable conservation status in their natural range.An application for a licence will fail unless all of the three tests are satisfied.

Is that not crystal clear? Surely the Scottish Government can read and understand their own guidance??? We’ll go into “licensable purpose” and “satisfactory alternatives” in shortly. Next, what constitutes disturbance?