EPS licensing – test number 2 that must be met:
There must be no satisfactory alternative (Regulation 44(3)(a))
Licences can only be granted if Marine Scotland is satisfied that there is no satisfactory alternative. The applicant will have to show, based on best available information, that alternatives were sought that would not impact on EPS and that none were found or they were not satisfactory.
While this test is part of the licence assessment, Marine Scotland will expect the applicant to provide the information required to support this assessment. The ‘alternatives’ to minimise the risk of injury and disturbance should therefore be considered when assessing whether an offence is likely. If no satisfactory alternative is found then an objective demonstration of why alternatives have been discounted will form part of the licence assessment stage.
The Commission Guidance on the strict protection of animal species (section III.2.2. paragraph 37) states that ’an analysis of whether there is “no other satisfactory alternative” can be considered as having three parts: What is the problem or specific situation that needs to be addressed? Are there any other solutions? If so, will these resolve the problem or specific situation for which the derogation is sought?’
Given that the CFPA will not pass test 1, as highlighted previously, how can the pass test 2. There is a satisfactory alternative – Nigg, or if Nigg is not for you – Sullom Voe or Southwold. How can they pass test 2? They can’t.