The 2017 EIA regulations – a marine consultant’s view

18/05/2018

On 16 May 2017, the new amended Environmental Impact Assessment (EIA) Directive (2014/52/EU) was implemented into UK law.  With these new regulations came a range of useful reviews about the changes that they would bring about (1, 2, 3).  One year on, we take a quick look at five key changes, and discuss how they may be altering the way EIA is undertaken in a marine consultancy.

1) The screening process now requires more information to be submitted (including about the significant effects and proposed mitigation measures).  This requirement seeks to ‘front-load’ the assessment process and provide an opportunity to avoid unnecessary EIA processes.  Essentially, it encourages the preparations of a ‘mini assessment’ of the effects and consideration of mitigation early on.  It was already UK practice to provide such information, and providing sufficient information at screening (and scoping) is inherently valuable to manage the EIA and avoid an unnecessarily protected EIA process based on poor early understanding leading to risk averse approaches (4).  Therefore this change may not have a tangible impact on established approaches (5).  In the marine environment it can often be difficult to verify the absence of significant effects at a screening stage and developers are not always able to commit to designs/construction methods at this early stage.  One solution is to carefully define the limits within which a development will reside, in order to ensure the validity of screening (and scoping) opinions throughout the EIA process. 

2) New environmental factors to be considered as part of EIA include ‘human health’, ‘climate’, ‘biodiversity’ and vulnerability to risks of major accidents and disasters.  The introduction of new topics has been the clearest change affecting marine EIAs.  We have used guidance to help us assess these topics.  IEMA has produced guidance/information on human health in EIA (primer) (6), climate change adaptation and resilience (7), and greenhouse gas emissions (8).  It has been especially encouraging to be more clearly recognising the role that our coastal habitats play in human health and climate regulations. 

3) Environmental Statements (ESs) must be produced by ‘competent experts/persons’, and the authority must ensure ‘sufficient expertise’ for review.  A competent expert/person has not been defined in the new EIA Regulations; perhaps this will only be decided once it is disputed.  It seems generally accepted that membership and accreditation by professional environmental organisations will satisfy this criterion.  ABPmer is registrant of the IEMA EIA Quality Mark scheme.

4) Authorities must coordinate EIAs with Habitat Regulations Assessment (HRA) where a development is subject to both the EIA Directive and Habitats Directive (92/43/EEC).This process of linking EIA requirements and HRA information needs was already undertaken as good practice before the new EIA Regulations were implemented.  It was recognised well over a decade ago that it made no sense to duplicate the ecological information that was needed for both assessment processes.  A well-established practice therefore was to collate the information needed for HRAs (or Shadow Appropriate Assessment) in the form of ‘signposting documents’ that referred the reader to the location in the ES where the necessary information could be found.  Therefore, this has not really affected the way things are done but there remains a need to be very careful about the very distinctive considerations (e.g. definitions of likely significance, reference to Conservation Objectives) that apply to the HRA processes. 

5) Where an EIA development is to be consented, authorities can consider imposing monitoring measures. It is stated that monitoring should be proportionate to the nature, size, and effects of the development, and could use existing monitoring arrangements.  Planning conditions often stipulate, where necessary, that post-consent monitoring of environmental effects should be undertaken. We envisage this will largely satisfy this requirement and in the marine environment monitoring is a crucial component in the process of adaptively managing project implementation (often seen as a best-practice way of assuring the absence of significant effects in marine environments). 

Despite the new EIA Regulations being in force for one year, it is too early for us to fully judge whether they are substantially affecting practice.  Material changes in the way EIA is undertaken in marine consultancy are perhaps limited, as most of the requirements in the EIA Regulations were already being done as good practice.

The marine environment will always present particularly distinct challenges when it comes to determining (or ruling out) significant effects with certainty (whether at screening, scoping or at the assessment stage itself even) because of the particularly complex and spatially-extensive nature of some key effects (especially for ecological features). 

However, the new regulations and the guidance that has come with it provide some useful clarifications to the process.  It is very important, though, to continue developing these processes, learn from research and good practice to make EIAs increasingly efficient and less burdensome for both regulators and developers into the future.     

We would be very interested to know other views on this – have the new EIA Regulations changed the way you approach EIAs?

Prepared by Jamie Oaten, Environmental Consultant.

References:

(1) http://www.quod.com/news/the-new-eia-regulations-2017/
(2) https://www.iema.net/assets/uploads/Webinar%20presentations/20170516%20EIA%20Regs%20Launch%20Conf%20IEMA%20Slides_16May17.pdf
(3) https://www.wyg.com/news-and-press-releases/guidance-on-2017-changes-to-eia-and-planning-regulations
(4) http://www.landmarkchambers.co.uk/userfiles/TF.pdf
(5) https://www.iema.net/event-reports/2017/11/16/the-uks-new-eia-regulations-learning-from-the-first-six-months-of-practice/
(6) https://www.iema.net/assets/newbuild/documents/IEMA Primer on Health in UK EIA Doc V11.pdf
(7) https://www.iema.net/assets/templates/documents/iema_guidance_documents_eia_climate_change_resilience_and_adaptation (1).pdf
(8) https://www.iema.net/policy/ghg-in-eia-2017

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