Maintenance Dredging & The Habitats Regulations 1994

Transcription

1 Maintenance Dredging & The Habitats Regulations 1994 A Conservation Assessment Protocol for England

2 Department for Environment, Food and Rural Affairs Nobel House 17 Smith Square London SW1P 3JR Telephone Website: Crown copyright 2007 Copyright in the typographical arrangement and design rests with the Crown. This publication (excluding the royal arms and departmental logos) may be re-used free of charge in any format or medium provided that it is re-used accurately and not used in a misleading context. The material must be acknowledged as crown copyright and the title of the publication specified. Information about this publication is available from: Defra, International Protected Areas Team, Wildlife Habitats and Biodiversity Division, Temple Quay House, Floor 1 Zone 6/C, 2 The Square, Temple Quay, Bristol, BS1 6EB Tel: This document is available for download on the Defra website. Published by the Department for Environment, Food and Rural Affairs. 1

3 Maintenance Dredging & The Habitats Regulations 1994 A Conservation Assessment Protocol for England 2

4 Contents Section Executive Summary Introduction 1 Aim of the Protocol and Key Principles 2 The Baseline Document 3 Consideration of proposals and applications 4 Gaps in the knowledge base 5 Rolling forward the Baseline Document 6 Interaction with Management Schemes for European Marine Sites 7 Annex A - Roles and responsibilities Annex B - Legislative background Annex C - Initial preparation of the baseline document Annex D - In-combination effects Annex E - Lessons learnt from the pilot studies supplementary guidance Annex F - Flow chart for consideration of maintenance dredging applications affecting European Sites Annex G - EC interpretation note on estuaries 3

5 Executive Summary This Protocol provides assistance to operators and regulators seeking, or giving, approval for maintenance dredging activities that could potentially affect European sites 1 (also known as Natura 2000 or N2K sites) around the coast of England. Following this process will enable issues associated with those Directives to be dealt with in a streamlined and proportionate manner. The Government considers that the EC Habitats Directive (92/43/EC) requires maintenance dredging proposals, which could potentially affect European sites, to be assessed in accordance with Article 6(3) of the Directive. Whilst not endorsing this interpretation of the law, representatives of the ports and marine leisure industries have agreed to work in co-operation with Defra, DfT and Natural England to develop an approach which allows the effect of maintenance dredging on European sites to be assessed without placing a disproportionate burden on those who commission or approve maintenance dredging operations. To provide a basis against which maintenance dredging applications can be assessed, this protocol recommends preparation of a Baseline Document. This Document will draw on existing and readily available information, and will describe the current and historical patterns of dredging in relation to the conservation status of European sites in the area. The first phase of consents issued under this protocol will use the Baseline Document as the foundation for obtaining the necessary Habitats Regulations clearances. Once established the Baseline Document will be periodically updated for use as a reference document in seeking subsequent consents. The Baseline Document will contain information to allow all conservation aspects relevant to European sites in the area to be considered and will define the dredging approach (including the tolerance parameters) that gives assurance that there will not be an adverse affect. Although preparation of a Baseline Document does not in itself mean there is no adverse affect, the presumption is that most maintenance dredging proposals in line with established practice as described in the Baseline Document, will fit within the tolerance range and thus be found unlikely to have a significant effect, usually without the need for further detailed information or consideration. It is expected that most maintenance dredges will fall into this category. This streamlined approach will enable those proposals not likely to have a significant effect on a European site to be quickly and easily identified. As the sites change over time, whether as a result of natural or anthropogenic change, the Baseline Document will need to evolve. Harbours/ports/navigation authorities will be primarily responsible for updating the Document, but all interested parties should contribute and be involved in this process. In return, all operators whether large or small can expect more consistent, timely and better-informed decisions when obtaining consents. Production of a Baseline Document is voluntary but without it individual maintenance dredge proposals may require more extensive and time-consuming information gathering and consultation. This Protocol has been developed by: British Ports Association British Marine Federation Department for Environment, Food & Rural Affairs Department for Transport Natural England UK Major Ports Group In co-operation with: Cabinet Office Cefas Environment Agency 1 SACs and SPAs designated or in the process of being designated in accordance with the EC Wild Birds or Habitats Directives for their Habitat and or species interest (see Regulations 2 and 10 of the Conservation (Natural Habitats, &c.) Regulations 1994 as amended (SI 1994 No. 2716) (known as the Habitat Regulations )) 4

6 1. Introduction 1.1. Maintenance dredging is a highly regulated activity undertaken by many ports, berth operators and marinas, to maintain safe, navigable channels and berths. 2 Consent is usually required under the Coast Protection Act 1949 (CPA) in relation to navigation issues, and the Food & Environment Protection Act 1985 (FEPA), in relation to the disposal and beneficial use of dredged materials In some cases, dredging may also be regulated through Environment Agency (EA) and drainage byelaws and separate local legislation allowing individual ports and harbour authorities to manage their own activities and the activity of others within set areas and for specific purposes Where maintenance dredging operations have the potential to affect European sites, the Government considers that maintenance dredging should be considered as a plan or project for the purposes of the EC Habitats Directive, and assessed in accordance with Article 6(3) of that Directive. Further detail on the legislative background is given in Annex B. The ports and marina industries question this view since it appears to be at odds with the interpretation being applied in other Member States. However, they have both agreed to co-operate with the Government to seek to devise arrangements which allow the effects of maintenance dredging on European sites to be reviewed in a way which does not impose disproportionate cost on these industries or the Government and its agencies. 2. Aim of the Protocol and Key Principles 2.1. Maintenance dredging is different from many other types of plan or project because it usually consists of a cycle or series of repeat dredges 3. Environmental assessment can be timeconsuming and expensive and repeated assessment of separate maintenance dredge applications may well add disproportionately to the cost of obtaining consents. A structured and evidencebased approach is recommended to facilitate consideration of future maintenance dredge proposals and applications. This will assist harbour and port authorities (and other Competent Authorities) in fulfilling their statutory obligations, and minimise the delay and cost to port and marina operators in obtaining consents This Protocol is based on the following key principles: Maintenance dredging is recognised as essential to the safety and continued operation of ports, harbours and marinas, which are themselves fundamental to economic well-being at the local, regional and/or national level; Maintenance dredging has been going on for many years in most locations and European sites were, in many cases, designated with these operations already taking place; A Baseline Document will be produced to include current and historical information on dredging activities within the area concerned. It will synthesize existing relevant information about the environmental status of the area concerned and, in particular, what is known of the impacts of previous capital and maintenance dredging. The Document will provide the foundation for consistent and informed decision-making by all the competent authorities, in compliance with the requirements of the Conservation (Natural Habitat, &c.) Regulations 1994 (as amended). It will be essential therefore that it is regularly updated, in the form of a reference document, as circumstances and requirements change. 2 For the purposes of this Protocol, maintenance dredging is the Defra definition of repeated dredging within a 10-year cycle: - Necessary to maintain an area of the sea bed to a level that is not lower (relative to Ordnance Datum) than it has been at any time during the preceding 10 years; OR - From an area for which there is evidence that dredging has previously been undertaken to the level (or lower) during the previous 10 years. 3 Many European sites have been designated against this background of ongoing maintenance dredging activity. 5

7 Once an evaluation of the impact of maintenance dredging has been undertaken and any necessary measures to avoid any foreseeable adverse impacts put in place, future consents should be considered taking account of the condition of the affected European site(s). There will be an expectation that once the Habitats Directive issues have been dealt with satisfactorily, where nothing has - or will - change in the baseline situation, future assessment of maintenance dredging in keeping with established practice to date, will rarely be found likely to have a significant effect and applications can be approved without the need for a repeat appropriate assessment; Until a full and proper evaluation as described above takes place, interim consents may be granted by Regulators, as one-off and time-limited activities, on the basis that they will not adversely affect the integrity of the European site(s). The established maintenance dredging regime will be treated as analogous to an on-going activity. If an adverse impact is identified when an in combination assessment is carried out (see Annex D) for a subsequent plan or project, responsibility for mitigation and/or compensation under the Habitats Regulations, will fall to the promoter of the new plan or project. The onus will also be on the developer to resource the updating of the Baseline Document. 3. The Baseline Document 3.1. Production of an initial Baseline Document is recommended in order to bring together readily available current and historical data on dredging activities within the area concerned. It will analyse the potential effects (if any), which those dredging operations are having on the interest features of European sites. Its purpose will be to assist competent authorities in identifying any likely significant effect in respect of future maintenance dredging applications or proposals, taking account of any in-combination effects of dredging proposals. Provision by Natural England of historical data on the status of European sites in the area (on a six yearly cycle) will enable Competent Authority(s) to put the site s current conservation status into context and provide a reasonable timeline for considering the impact of maintenance dredging operations Guidance on preparing a Baseline Document is given in Annex C. They will be based on existing and readily available information (e.g. from previous applications and/or Environmental Impact Assessments, dredge disposal returns and condition monitoring). It will identify, where possible: The existing need for maintenance dredging in individual areas; The existing volumes, frequencies and duration of dredging operations. This should be based on actual dredge returns rather than volumes applied for in consents; The precise locations of dredging and disposal; Methods of dredging, transport and disposal, including requirements for relevant authorities to take into account agitation dredging and other hydrodynamic operations. Any restrictions imposed as licence conditions or by physical constraints (e.g. depth, tidal flow, wave or weather conditions); Material type and chemical status (existing and historical); The history of dredging and disposal at particular locations, as well as the variability in material type and volumes due to natural changes; Any monitoring requirements previously imposed through licences, and the outcomes of such monitoring; Any beneficial use and sediment cell maintenance schemes, or mitigation and compensation schemes entered into; 6

8 Any other relevant information from past studies or previous applications that have possible direct or indirect links to the maintenance dredging The Baseline Document will also include information supplied by Natural England and others (e.g. Defra, Cefas, EA) on the condition and characteristics of European sites in the area, in particular: the interest features of the sites and their conservation objectives, which could be affected by maintenance dredging (Natural England s regulation 33 advice - if available - is a quotable document so complete repetition of this advice is not necessary); the extent to which the ecological requirements of the sites have been achieved, maintained or restored since the requirements of the Birds or Habitats Directive were applied to the sites. 4 A clear evaluation by Natural England of the impact of ongoing established dredging activities on the sites. 4. Consideration of proposals and applications 4.1. The expectation (in the absence of any conflicting evidence) will be that a maintenance dredge proposal will not be likely to have a significant effect on a European site when: the Baseline Document shows that maintenance dredging is not causing deterioration in the condition of the site, and there will be little or no change to the situation described in the Baseline Document. Where this is the case it will not be necessary for the competent authority to require further information or to carry out a more detailed assessment as far as the Habitats Regulations are concerned A three stage decision-making process is set out below. (NB. Many maintenance dredge proposals will be approved at Stage 2 (without the need for further assessment under Stage 3)): Stage 1 - Application Operators proposing or seeking consent for maintenance dredging will provide details of their proposals supported by a Baseline Document. the expectation is that they will not normally be required to provide more information to accompany their application than under existing arrangements, although they should highlight any changes from the long-term pattern, or established practices, described in the Baseline Document. Stage 2 - Consideration of likely significant effect Information submitted by the applicant or operator, together with that contained in the Baseline Document, the results of any recent monitoring and any other relevant information, will be used by the Competent Authority(s) in deciding whether the proposal, alone or in combination with other plans or projects - is likely to have a significant effect on a European site. See Annex D for guidance on in-combination effects Competent Authorities shall be cognisant of the need only to identify a reasonably foreseeable likelihood of a significant effect (rather than certainty). 4 It is arguable whether, depending on if a site is a SAC or SPA, when this point in time should be held to be. However, whether it is the point at which the Directive came into force (i.e. May 1994), the point at which a site was submitted to the European Commission or the point at which it was adopted as a Site of Community Interest ( SCI ) note should also be taken on the status and trends of the site in recent years. 7

9 Where little or no change has/is/or will be expected to the long-term pattern or established practices described in the Baseline Document, and if the results of any monitoring reveal no deterioration in (or risk to) the conservation status of a European site due to any activity related to the maintenance dredging operation, the Competent Authority will be expected to conclude no likely significant effect. Where this is the case the Habitats Directive require no further assessment and compliance with its obligations will have been discharged. Stage 3 - Appropriate assessment Where the Competent Authority, having undertaken the above stage 2 consideration, considers: there will be a change to the established regime described in the Baseline Document (e.g. in scale of operation or contaminant levels); or, if monitoring indicates any likely significant effects (or adverse risk) to a European site attributable to the maintenance dredging practice and/or relocation of arisings, alone or in combination with other plans or projects, an appropriate assessment of the implications for the site in view of its conservation objectives will be required If any impacts (or risks of impacts) which could adversely affect the integrity of a European site are identified by the appropriate assessment, mitigation measures should be put in place to minimise or cancel those impacts (or risks of impacts) where feasible. The dredge can only be approved insofar as the Habitats Directive s requirements are met. Where this is not possible, it will be necessary to consider whether the dredging should cease, or whether - in the absence of alternative solutions - it is in the overriding public interest for it to continue, with compensatory measures put in place. 5. Rolling forward the Baseline Document 5.1. Provided the Baseline Document is rolled forward to incorporate new information as it becomes available (e.g. from condition monitoring) it should not require substantial revision unless major changes occur (e.g. capital works) or significant new information comes to light (e.g. review of a European marine site (EMS) 5 management scheme) which renders it incomplete or out-of-date. This will ensure that that future consents are assessed against the up-dated position and latest information Routine renewal applications, which do not change the scope or nature of the established maintenance dredging regime, will not normally trigger a need to revise the Baseline Document Where an appropriate assessment is carried out, the Baseline Document should be updated to incorporate the latest assessment of the impact of maintenance dredging, or if no significant change is identified, a summary of the results of the assessment should be appended to the Reference Document The Baseline Document will be kept up-to-date by the harbour/port/navigation authority(s), but all Competent Authorities should assist the co-ordinating authority by providing information required to keep the Baseline Document up-to-date. However, where any new plan or project is considered likely to affect estuarine morphology and/or additional dredging activity results, the onus will be on the scheme promoter to thoroughly revise the Baseline Document, incorporating those changes relevant to consideration of the Habitats Directive with respect to impacts on maintenance dredging The Baseline Document must be kept up-to-date if it is to be used in assessing maintenance dredge proposals and if benefits are to accrue. It will be essential that the most up-to-date version is made available to, and is used by, all competent authorities and operators. 5 an EMS is a European site which consists of, or the part of a European site which consists of, marine areas (Regulation 2) 8

10 6. Gaps in the knowledge base 6.1. Ideally, the Baseline Document plus any information submitted with the application should enable the Competent Authorities to conclude no likely significant effect (assuming, of course, that the impacts are insignificant). However, there will inevitably be different amounts of readily available information for different locations. The Baseline Document should therefore, as far as possible, identify key information gaps for each location with respect to site-specific environmental requirements. 6 In preparing the Baseline Document, there is no requirement to carry out further studies. However, gaps in the knowledge base may occasionally prevent the Competent Authority from concluding no likely significant effects when considering future maintenance dredge proposals. Early identification of any key information gaps will therefore provide operators (or the EMS Relevant Authorities) with an opportunity of addressing them in advance of submitting an application, should they wish to do so When considering a maintenance dredge proposal, a Competent Authority may occasionally be unable to make a conclusive judgment on the likely effects of the proposal. In these cases a riskbased approach may be appropriate, so that where: there is little or no change to the dredging requirement; there are no new or in-combination factors affecting the baseline condition of a European site; and there is no direct evidence of detriment being caused by maintenance dredging; consent may be granted subject to:- (a) monitoring conditions to address the specific uncertainties, and (b) the opportunity for review in the light of the monitoring results Should monitoring subsequently indicate an unanticipated adverse impact, further monitoring and mitigation may be required. Additional studies, monitoring and mitigation should be proportional to the scale of the dredging being undertaken and uncertainty involved and address the features considered to be at risk. 7. Interaction with Management Schemes for European Marine Sites 7.1. In accordance with Regulation 32, of the Habitats Regulations, Management Schemes are being developed for a number of EMS. In addition Regulation 33 advice has been issued for other sites Consultation arrangements set up for the Management Schemes can also be used to consult more widely on the preparation (and up-dating) of the Reference Document. This approach stresses the importance of port involvement in the Management Scheme process and the importance of a constructive dialogue. Reliance on the Management Scheme to provide the necessary information will require active participation by all relevant authorities The information contained in Management Schemes will be valuable in preparing Baseline Documents and considering maintenance dredge applications. In most cases the port authority will be a relevant authority and play a key role in the development of the Management Scheme. Natural England and the Environment Agency are also likely to be relevant authorities The Baseline Document will give details of how the maintenance dredging process relates to the Management Scheme for the EMS and how this has/will be monitored by the individual parties. It is the role of Natural England to ensure that they monitor any change in conservation status, and to inform the relevant authorities about whether it is improving or deteriorating. 6 N.B. Not all sites will require an equivalent amount of information. 9

11 Annex A: Definitions, Roles and Responsibilities Operators Berth operators and marinas, port and harbour authorities who commission maintenance dredging, should co-operate with the harbour/port/navigation authority by supplying information to assist in preparation of the Baseline Document. In submitting any subsequent maintenance dredge applications they should highlight any changes from the long-term pattern or established practices described in the Baseline Document. Harbour/port/navigation Authorities The harbour/port/navigation Authority(s) will collate information and produce the draft Baseline Document. The operators and other Relevant Authorities groups will then be consulted. The harbour/port/navigation authority(s) will ensure that the Baseline Document is kept fully up to date and make it available to operators and other competent authorities. Relevant Authorities Relevant Authorities (as defined in regulation 5 of the Habitats Regulations 1994) should be consulted in the preparation (and up dating) of the Baseline Document, and should contribute any relevant information for inclusion in the Document (such as possible in-combination effects). Competent Authorities Competent Authorities (as defined in regulation 6 of the Habitats Regulations 1994) may include navigation, harbour and port authorities as well as DfT, Defra (for FEPA and CPA consents). EA is the Competent Authority with responsibility for land drainage byelaw consents. Competent Authorities will use the Baseline Document to assist their decision-making and, following the granting of a consent will supply information to the authority(s) who have responsibility for keeping the Baseline Document up to date. Natural England Natural England will provide information on the condition and characteristics of European sites in the area for inclusion in the Baseline/ Document. Natural England will also be a member of the Relevant Authorities Group for each EMS and must be consulted by the competent authority if an appropriate assessment is required under the Regulations. 10

12 Annex B Legislative Background 1. The UK Government considers that any activity (i.e. excavation or disposal) related to maintenance dredging that requires a statutory consent is a plan or project liable to assessment in accordance with Article 6(3) of the EC Habitats Directive. This requirement has been transposed by the Conservation (Natural Habitats, &c.) Regulations 1994 (the Habitat Regulations ), and their amendments. 2. Although maintenance dredging is not specifically mentioned in the Regulations, all competent authorities (including port and local authorities) must, by virtue of regulation 3(4), have regard to the requirements of the Habitats Directive in the exercise of their functions. More specifically, in relation to marine areas, competent authorities must exercise any functions relevant to marine conservation so as to secure compliance with the requirements of the Habitats Directive (regulation 3(3)). This applies not only to FEPA or CPA consented operations, but also to those granted or licensed by a port authority, the Environment Agency or by a local authority. 7 The Harbours Act 1964 is included in the indicative list of enactments in regulation 3(3), but others will be caught as the list is not exhaustive. 3. Where maintenance dredging is found likely to have, or be having, a significant effect on a European site, a port authorising or undertaking licensed, contracted or otherwise permitted maintenance dredging operations (including disposal) must exercise their functions in compliance with the requirements of the Directive. In such circumstances, unless the dredging is directly connected with or necessary to the conservation management of the site, an appropriate assessment will have to be conducted. 4. Regulations and Part IV of the Habitats Regulations indicate a process that will comply with the requirements of Article 6(3) of the Directive. Although these Regulations do not specifically apply either to FEPA or CPA, these provisions are applied by analogy by the Marine and Fisheries Agency on behalf of Defra in discharge of their duty to apply the Directive under Regulation 3(3). 7 Regulation 6 defines the term competent authority as including all public bodies or any person holding a public office, a term that includes an office created or continued in existence by a public general Act of Parliament. 11

13 Annex C Initial Preparation of the Baseline Document 1. The Baseline Document will be commissioned or prepared by the harbour/port/navigation authority(s) for the area concerned (where there is more than one authority they are recommended to co-operate in its production), with assistance from all the bodies in the area who commission or have local powers to approve maintenance dredging or other projects which may affect European sites in the area. For example, the morphology of the estuary EMS. 8 The final draft of the Baseline Document should be agreed with the bodies in the area who commission or themselves approve maintenance dredging and members of the EMS Relevant Authorities Group. 2. The geographical coverage of Baseline Documents may vary since some European sites include a number of estuary areas that are not linked, meaning that it may be appropriate to compile Baseline Documents for individual estuaries. For less intensively used sites a single Document may minimise the overall demand on resources, although the impacts should still be considered for the individual estuary areas. 3. Inevitably there will be different amounts of information available for different locations and the Baseline Document should therefore clearly identify any gaps in the knowledge-base with respect to site-specific environmental requirements, but not all sites will require the same amount of information. If a European site is in favourable condition, and the maintenance dredge is not likely to adversely affect the site s integrity, then no further studies are likely to be required. Section 6 provides more information on dealing with gaps in the knowledge base or uncertainties. 4. Costs in preparing the Baseline Document should be comparatively low, since it will be based on existing data which should be readily available. Such costs will be borne by the Authority(s) who may recover the costs through their licensing process if appropriate. Any mechanism employed to comply with the Habitats Regulations shall be proportionate to the different levels of operator and scale of impact. 8 The effect on all European sites of any activity related to the maintenance dredging operation needs to be considered 12

14 Annex D In-Combination Effects 1. The effects which maintenance dredges may have on a European site, alone or in-combination, will be addressed initially through the Baseline Document. Thereafter, where a new plan or project is proposed which might give rise to an in-combination effect (e.g. a dredge not in accordance with the established practice, or any other type of plan or project) it should be assessed against the maintenance dredging regime described in the updated Baseline Document. 2. All Competent Authorities, in assessing in-combination effects with the established maintenance dredging regime, will treat the dredging regime described in the Baseline Document as analogous to an on-going activity. If an in-combination or adverse impact is identified when an in combination assessment is carried out for a subsequent plan or project, responsibility for mitigation, or compensation under regulation 53 of the Habitats Regulations, will fall to the promoter of the new plan or project. The onus will also be on the developer to resource the updating of the Baseline Document. 3. Where the situation within a European site in the area has been (or will be) affected by a recently approved (or implemented) plan or project, whether dredging-related or not, the Baseline Document should be updated to reflect the new situation. 13

15 Annex E Lessons learnt from the pilot studies supplementary guidance 1. Three trial sites were chosen, the Humber, Medina and Fal/Helford. They differ considerably in the nature of their sediment regimes and dredging requirement. This guidance arises out of the experience gained and a critique by Cefas who would be central to any decision-making within Defra. Therefore the best-fit model for mainstream baseline documents needs to bear in mind some of the key differences: 1.1. The Humber is a big, muddy estuary with dredging occurring throughout the year in the Sunk Dredged Channel and more intermittently at berths and in the locked docks. All of the sediment is returned to the system at dump grounds within the estuary, so most of the dredged material can be expected to stay within the estuary. The baseline document benefits from the considerable level of study undertaken for development projects and for the Environment Agency s estuary shoreline management plan The Medina is a narrow estuary with limited inter-tidal and largely developed shoreline at its mouth. There are frequent dredging events, most of which are relatively small, but the sum of dredging activity does amount to a relatively high volume of sediment in relation to the overall sediment budget. At the moment, all sediment dredged is removed from the system, so there is a risk that there will be a deficit of sediment reaching inter-tidal habitats upstream. This estuary is not as well understood as the Humber, but none-the-less does benefit from a range of studies The Fal/Helford is a deepwater system with limited mudflats and a very limited sediment input. Unlike the Humber, it is clear-water and a key consideration is avoidance of smothering of sensitive marine communities such as maerl beds. Therefore, offshore disposal is likely to be a desired approach and minimisation of sediment plumes is a consideration. In addition, historic inputs of contaminants (much of it from mining waste, but also from TBT usage) means that remobilisation of contaminants may be an issue. The level of knowledge of the system is relatively poor by comparison with the Humber and Medina, and as such this model will probably only suit those small ports in SW England where levels of dredging are low and suspended sediment issues and remobilisation of contaminants are the principal issues. 2. The trials emphasised the problems of securing relevant data, both in terms of volumes disposed and in relation to chemical analysis. This is an element that will need to develop over time, with the establishment of a robust recording system to ensure that the outcomes of future dredges are recorded in such a way as to develop and reinforce the information presented in the baseline document. However, Cefas point out that the current database held by Defra/Cefas has a number of limitations: 2.1. It does not record data on various forms of hydrodynamic dredging which are gaining in popularity. This may lead to an underestimate of the degree to which dredging affects an estuary. It may also lead to changes in the way sediment management is considered within the estuary. Such techniques do need to be recorded within the document where they have been used There may be problems arising from multiple dredging sources reported in the same application as this may lead to over-estimation of volumes dredged when reporting against individual projects Disposal to land is not covered by the Marine Consents Management System (MCMS) database There are difficulties translating the wet tonnes reported by contractors and the dry tonnes used in determining sediment budgets The MCMS database is designed to track the disposal of material rather than its source, so the current database does have some limitations. It is also quite costly in terms of Cefas time so there may be implications for the speed with which baseline documents can be produced unless the port(s) involved have maintained their own data. 14

16 3. There is a need for greater detail on the frequency and duration of dredging events. Cefas would need this to have a clearer understanding of the degree to which dredging constituted a perturbation to the ecology of a particular estuary. This detail may not be available in all cases at the moment, but the establishment of a database by the lead harbour authority would ultimately overcome this problem. There is therefore an onus on the relevant operators to ensure that dredging returns to the lead harbour authority contain details of the duration and magnitude of the dredging operation. 4. It was felt that the baseline documents required a much greater level of refinement in the information provided on designated sites (rather than reference to Regulation 33 advice). This might be addressed by appending the Regulation 33 advice to the baseline document. 5. The document should ensure that the location of disposal grounds in relation to the European marine site are depicted and described. In some cases these will be within the designated site; in others they may be some distance away, and the relationship between these sites needs to be explained, particularly with regard to any modelling that has been done to determine the pathways followed by sediment deposited at the dump ground. 6. In this age of transparency of decision-making and of course the freedom of environmental information act, there may be a need for greater access to relevant reports referred to in the baseline document. Some of these might logically form an appendix to the document, although some competent authorities would already have these documents. 7. The stepwise approach to judgements of whether or not the dredging has a likely significant effect on European sites, and subsequently on the judgement of whether there was an adverse affect on interest features needs to be reinforced and improved. This may require further work at a local level to develop a robust and transparent sequence of comments that make up any judgement of impacts under Regulation 48 of the Habitats Regulations. 8. Where baseline documents cover the operations of more than one Harbour Authority, the boundaries of the authorities should be depicted on an appropriately scaled map. This would usefully be improved by a short description of the limits of jurisdiction and the process whereby individual authorities will ensure that a unified database of dredging activity will be maintained. 9. In the majority of cases, beneficial use of dredged materials is likely to involve some form of sediment feeding or returning dredged sediment within the system. The Humber is a particularly good example because all disposals are within the estuary; however there will be other examples where some dredging does lead to sediment feeding say placement on individual mudflats or perhaps through agitation methods on particular tides that carry sediment upstream rather than offshore. However, there are a small number of estuaries where beneficial use might also include removal of sediment to land these are the exceptions rather than the rule and usually relate to estuaries that are at risk through smothering of important sub-tidal communities. On the whole, beneficial use must start with maintaining the sediment budget of the estuary and ensuring that inter-tidal habitats are not adversely affected by sediment draw-down. 15

17 Annex F Consideration of Maintenance Dredging Applications affecting Natura 2000 Sites Application made Will there be any change to the situation described in the Baseline Document? NO No further action under the Habitats Regulations YES Consult Natural England Is there likely to be a significant effect on a European Site (either alone or in combination with other plans or projects)? * NO YES / POSSIBLE Consult Natural England Appropriate assessment: will the plan or project NOT adversely affect the integrity of the European site? YES No further action under the Habitats Regulations ADVERSE IMPACTS (OR RISKS OF ADVERSE IMPACTS) IDENTIFIED Will mitigation measures remove adverse impacts (or risks of adverse impacts? ** YES Update the Baseline Document if necessary NO Are there alternative solutions? NO Are there imperative reasons of overriding public interest why the proposal should proceed? *** YES NO Approval cannot be given (alternative solutions should be pursued) Approval cannot be given YES It might be possible for approval to be given, subject to notification of the Secretary of State and provision of compensatory measures. Update the Baseline Document if necessary * Details of how this decision was reached should be recorded for auditing purposes. ** Mitigation measures which reduce adverse impacts (or the risks of adverse impacts) but not sufficiently to prevent site integrity being adversely affected must continue to the next stage of possible alternative solutions. Mitigation measures should be taken into account when establishing compensatory measures. *** Where sites host a priority habitat or species, reasons must be either relating to human health, public safety or beneficial consequences of primary importance to the environment or reasons which in the opinion of the EC are imperative reasons of overriding interest (see Regulation 49(2)). 16

18 Annex G EC Interpretation Note on "Estuaries" (habitat type 1130), With a View to Aiding the Selection/Delimitation and Protection/Management of Sites Of Community Interest Hosting this Habitat Type Selection And Delimitation Of Sites According to the Interpretation Manual 9, an estuary is defined as the "downstream part of a river valley, subject to the tide and extending from the limit of brackish waters. River estuaries are coastal inlets where, unlike large shallow inlets and bays there is generally a substantial freshwater influence. The mixing of freshwater and seawater and the reduced current flows in the shelter of the estuary lead to deposition of fine sediments, often forming extensive intertidal sand and mud flats. Where the tidal currents are faster than flood tides, most sediments deposit to form a delta at the mouth of the estuary." The selection and delimitation of sites must be exclusively scientifically based 10. In this regard an inclusive approach to the identification of estuarine sites is necessary because of the complex and dynamic nature of this habitat type. The selection process should take into account not only the constituent biotopes but also relevant geomorphological features, dynamic ecological issues and hydrological processes. Freshwater tidal areas can also form part of estuaries. In such cases the upstream boundary of estuaries is marked by the limit of tidal influence. To be consistent with this approach, no important part of the habitat complex should be excluded. This has consequences for determining the boundaries of the sites, which should not be limited to the intertidal areas, but which should also integrate the sub-tidal areas. Similarly, areas within estuaries beyond a certain depth of covered water should not automatically be excluded. Therefore, shipping lanes should not be excluded from sites containing the "estuaries" habitat as they are an integral part of them. Shipping lanes and other sub-littoral channels play a role in the hydrological functioning of estuaries, including the circulation of water and the deposition of sediment. Furthermore, these channels may also form part of the estuarine migration routes of Annex II fish species. Irreversible changes to the nature of an estuary which have resulted in serious loss of ecological value for all or significant parts of the site, for instance through land claims or the placement of training walls, may represent valid reasons for exclusion. Apart from this, even in the case of severe pollution, the dynamic nature of the estuaries can allow very rapid recovery of the biota to the so-called "normal" state. Having very poor biological quality should therefore not prevent the taking of action aimed at restoration of the habitat. Selection of estuaries should therefore include the complete area of the existing natural habitat, which makes up the complex system. In cases where the degree of development has been so extensive it may be concluded that a largely natural estuarine situation no longer exists. In such cases selection of residual areas of specific habitat type may be the only viable option in order to meet the objectives of Article 3(2) of the Habitats Directive. 9 INTERPRETATION MANUAL OF EUROPEAN UNION HABITATS. EUR 27. Version July In its judgement in case C-371/98 First Corporate Shipping the Court of Justice has ruled that Member States may not taken account of economic, social and cultural requirements or regional and local characteristics when selecting and defining the boundaries of sites to be proposed under the Habitats Directive 17

19 Protection and Management of Estuaries; Especially in Relation to Dredging Operations In respect to the management of estuarine NATURA 2000 sites, the Commission guidance on the provisions of Article 6, which emphasises the value of management plans and where appropriate a direct link to other planning processes, is highly relevant 11. In addition, the judgement of the Court of Justice of 7 September in the Waddenzee Case should be taken into account with regard to the protection and management of estuarine NATURA 2000 sites. In this case, the Court gave a broad definition of the terms plan and project and of the obligation for an assessment. Furthermore, the Court has clarified the content of an appropriate assessment under Article 6(3) and the scope of application of the protective provisions of Article 6(2) of the Habitats Directive. Ongoing (maintenance) activities With regard to ongoing (maintenance) activities, there is no immediate reason to believe that existing activities associated with port maintenance, which had been carried out over a long period of time in an estuary prior to its proposal as a site of Community interest, cannot continue. The majority of such activities would be expected to continue, provided that they do not have significant negative effects in relation to the conservation objectives of the site. However, the Court judgement made it clear that such works would normally be considered to be plans or projects in the terms of the Directive and an assessment of their potential impacts would therefore normally be required as a pre condition to the permitting process. The Commission considers that in the case of routine operations it would be appropriate to integrate such assessment into the overall preparation of management plans. This would ensure that their implications are reviewed in a structured manner in the overall context of the conservation of the sites. In respect to operational requirements this could therefore include provisions to allow permitting of these activities, subject to monitoring, for the duration of the management plan 13. The management plan should be specifically designed for each site (or be integrated into other development plans) and should be regularly updated. Ongoing port maintenance activities could be foreseen and dealt with within the framework of such a management plan. Consequently, there will be no need for individual assessments under Article 6(3) for every ongoing port maintenance activity, where such activities are dealt with in the manner suggested above. Given that dredging activities can remove large amounts of sediments from the estuarine system, with potential for adverse effects on the overall estuarine sediment balance, particular attention should be given in the management plan to addressing this concern, including, where appropriate, putting sediments back into the system through morphological management. The management plan should be underpinned by effective monitoring systems that enable, inter alia, assessment of the impact of potentially damaging operations that may affect the conservation objectives of the site (including status of the conservation features of EU interest). 11 MANAGING NATURA 2000 SITES. The provisions of the Habitats Directive 92/43/EEC. ISBN Judgment of the Court (Grand Chamber) of 7 September 2004, Landelijke Vereniging tot Behoud van de Waddenzee, Nederlandse Vereniging tot Bescherming van Vogels against Staatssecretaris van Landbouw, Natuurbeheer en Visserij, case C-127/02, 13 The management plan should, inter alia, contain baseline information on the current and historical patterns of dredging and any known impacts arising from these as well as other evidence in relation to this activity and the conservation status of the site. Key gaps in knowledge should also be identified and action to address these planned for. 18

20 New (capital) dredging projects In general, such projects carry a greater likelihood of a significant effect on a site, either individually or in combination with other plans or projects. Based on the aforementioned, it results that Article 6(3) of the Habitats Directive applies to new dredging projects, involving deepening or widening of the channel. Consequently, such action should be subject to an appropriate assessment of its implications for an estuarine site in view of the site s conservation objectives. Although it would use relevant information contained in the management plan this assessment would need to be separate and distinct from the plan. If, in accordance with the requirements of Article 6, the new dredging is allowed to proceed, then further maintenance dredging of the area in question may be accommodated within the framework of assessments carried out for the management plan. In cases where it may be scientifically justified to exclude parts from estuaries this does not remove the need to consider applying Article 6 safeguards to those areas. The need for such an assessment is linked to the likelihood of developments having a significant effect in view of the site s conservation objectives, and not on the location of the project or plan in question. Furthermore, it should be noted that the obligation of general protection under Article 6(2) of Directive 92/43/EEC, consisting of avoiding deterioration of habitats and significant disturbances of species, is always valid. In fact, it cannot be precluded that a project authorised under Article 6(3) may subsequently prove likely to give rise to such deterioration or disturbance, even where the competent national authorities cannot be held responsible for any error. Under those conditions, application of Article 6(2) makes it possible to satisfy the essential objective of the preservation and protection of the quality of the environment, including the conservation of natural habitats and of wild fauna and flora. 19