Deliverable D 2.3. June Duration March June European Wind Energy Association

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1 Deliverable D 2.3 Comparative analysis of Maritime Spatial Planning (MSP) regimes, barriers and obstacles, good practices and national policy recommendations June 2011 Agreement n.: IEE/09/898/SI Duration March June 2011 Co-ordinator: European Wind Energy Association Supported by: PROPRIETARY RIGHTS STATEMENT This document contains information, which is proprietary to the Seanergy 2020 Consortium. Neither this document nor the information contained herein shall be used, duplicated or communicated by any means to any third party, in whole or in parts, except with prior written consent of the Seanergy 2020 consortium.

2 EXECUTIVE SUMMARY This study forms part of the SEANERGY 2020 project which has an overall aim to provide policy, regulatory and planning conditions recommendations that can reduce barriers to the growth of offshore power generation from marine renewable sources. Work package 2 of the project analysed and compared Maritime Spatial Planning (MSP) regimes in 17 EU Member States around four sea basins: the Baltic Sea Estonia, Finland, Latvia, Lithuania, Poland and Denmark East; the North Sea Belgium, Denmark West, Germany, the Netherlands and United- Kingdom East; the Atlantic coast France, Ireland, North Spain, Portugal and the United-Kingdom; and the Mediterranean Sea Southern France, Southern Spain, Italy and Greece in relation to offshore renewable energy (O-RE) generation. The project has developed a set of seven criteria to evaluate the different MSP regimes across the 17 EU Member States. These criteria are: 1) policy and legal framework; 2) data and information management; 3) permitting and licensing; 4) consultation 5) sector conflict management; 6) cross-border cooperation; 7) implementation of MSP, Based on these criteria, a series of national reports were commissioned to establish the current status of MSP within each EU Member States. These reports go into detail on the specific arrangements within the different countries and provide details on national legalisation, data management, permitting arrangements, consultation mechanisms, methods for managing sector-conflict and cross-border cooperation. They also summarise to what extent MSP is being implemented. These national reports served as basis for a comparative analysis of national MSP regimes according to the seven criteria. The report produced under Task 2.6. by MRAG, outlines a series of general characteristics of national MSP practices and general recommendations. The full report is available below under Part I. Following this comparison, a series of good practices for MSP in relation to offshore renewables deployment are highlighted as part of Task 2.7. In addition, a set of policy recommendations to better develop MSP for offshore renewables, is provided for each sea basin, for each of the seven criteria. The full report is available under Part II. As an overall conclusion, the particular set-up of MSP seems to always be context specific. However, it is important that MSP has a legal basis and ideally a central organisation that coordinates inputs from different sectors.

3 PART I TASK 2.6. : Comparison of national Maritime Spatial Planning regimes across EU Document Name: Comparison of national Maritime Spatial Planning (MSP) regimes across EU Document Number: Task 2.6, First part of Deliverable D2.3 Authors: Payne, I., Tindall, C., Hodgson, S., Harris, C Date: April 2011 WP: 2 Task: Task 2.6: Comparison of National MSP regimes 3 P a g e

4 TASK 2.6: TABLE OF CONTENTS TASK 2.6: TABLE OF CONTENTS INTRODUCTION POLICY AND LEGAL FRAMEWORK Current practice in Policy and Legal Framework for MSP Recommendations DATA AND INFORMATION MANAGEMENT Why is data and information management important to MSP? Progress per sea basin Best practice in data and information management for MSP Recommendations PERMITTING AND LICENSING Best practice in terms of permitting and licensing Recommendations CONSULTATION Why is consultation important to Maritime Spatial Planning (MSP)? Progress per sea basin Best practice in consultation for MSP Recommendations SECTOR CONFLICT MANAGEMENT Why is sector conflict management important to Maritime Spatial Planning (MSP)? Progress per sea basin Best practice in sector conflict management for MSP Recommendations TRANSBOUNDARY COOPERATION Current practice in terms of transboundary cooperation Recommendations IMPLEMENTATION OF MSP P a g e

5 8.1 Why is implementation important to Maritime Spatial Planning (MSP)? Best practice in implementation of MSP Recommendations FINAL POLICY RECOMMENDATIONS Overarching recommendations Specific recommendations Consultation REFERENCES P a g e

6 1 INTRODUCTION This report responds to a specific task (Task 2.6) to compare the different MSP regimes and provide national level recommendations on best-practice in terms of the sub-categories: 1) policy and legal framework; 2) data and information management; 3) permitting and licensing; 4) consultation 5) sector conflict management; 6) cross-border cooperation; 7) implementation of MSP. The report goes through each of the sub-categories and provides the key findings in terms of how the different sea basins are progressing in terms of MSP. 6 P a g e

7 2 POLICY AND LEGAL FRAMEWORK This aim of this section is to examine the current policy and legal framework for MSP in selected EU Member States and to assess the extent to which such a framework supports and promotes MSP and allows for integration across sectors. Initially, it is important to note that the vast majority of activities that take place in the coastal waters of the EU Member States are not unregulated or indeed unplanned. Indeed the contrary is usually true. The national reports on progress towards MSP (see Section 9: References) clearly describe a large body of legislation whereby Member States seek to impose order upon activities within their respective maritime zones. 2.1 Current practice in Policy and Legal Framework for MSP MSP Legislation The starting point, conceptually and in practice, is the national legislation whereby the rights of Member States pursuant to the 1982 United Nations Convention on the Law of the Sea 1 (UNCLOS) are defined. More specifically the rights of Member States under international law to claim and assert the maritime zones provided for in UNCLOS (of which the territorial sea, the Exclusive Economic Zone (EEZ) and continental shelf are most relevant to a discussion of MSP) must first be claimed and translated into national law through national legislation. Such legislation typically also confers upon the State the right in general terms to allocate parts of the maritime zone for different uses, for example Spain s Law (Royal Decree) 22/1988 (the Ley de Costas or coasts law ), Sweden s Economic Zone Act or Belgium s 1999 Exclusive Economic Zone Act. Thereafter as described in the national reports different sectoral activities, including offshore renewable energy (O-RE) are typically regulated by sectoral laws, with their own planning and permitting regimes. Certain items of national legislation may have a so-called horizontal effect in that they require consideration of cross sectoral impacts, in particular national laws that give effect to EU legislation namely the Strategic Environmental Assessment (SEA) Directive 2 and the Environmental Impact Assessment (EIA) Directive 3. Given that these instruments apply respectively to public sector plans and policies, and to individual projects in the context of an assessment of environmental impacts, this is still some distance away from creating a legal framework for MSP as such. 1 United Nations Treaty Series vol 1833, p.3. All of the Member States are party to UNLCOS as is the EU. 2 Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment. OJ L 197, , p Council Directive of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (85/337/EEC) as amended OJ L 216, , p P a g e

8 Before going any further in terms of assessing the extent to which existing legal and policy frameworks give effect to MSP it is perhaps useful to examine in more detail what is meant by MSP. An immediate problem in this respect is that there is no internationally accepted definition of MSP. Nor, of course, is there a formal EU definition given that there is no EU legislation on MSP. One broadly accepted definition, which has been proposed by UNESCO Intergovernmental Oceanographic Commission (IOC) is that MSP is: a process of analysing and allocating parts of three-dimensional marine spaces to specific uses to achieve ecological, economic and social objectives that are usually specified through the political process: the process usually results in a comprehensive plan or vision for a marine region. (MSP) is an essential element of sea use management (Ehler & Douvere, 2007). Although none of the EU s formal Communications on MSP to date have sought to define the concept, a brochure that has recently been produced by the European Commission (European Commission, 2010) contains the following definition: MSP is a process for planning and regulating all human uses of the sea, which also sets out to protect the marine ecosystems in which these activities take place and safeguard marine biodiversity. MSP is a process for planning and regulating all human uses of the sea, which also sets out to protect the marine ecosystems in which these activities take place and safeguard marine biodiversity. Of course while this too is not legally binding, two clear messages emerge from both of the definitions, namely: (a) that MSP is a process; and (b) moreover one that takes a comprehensive approach to human activities at sea. The adoption of policy statements and legislation in support of the development of the O-RE sector clearly represents an important step forward in the development of a robust legal and policy framework for the sector. Examples of such legislation include the Spanish Royal Decree (RD) 1028/2007, a series of Belgian Royal Decrees 4 including the Decree of 3 February However such instruments cannot, in 4 Royal decree of 7 September 2003 concerning the procedure for licences and the authorization of certain activities in the marine areas under Belgian jurisdiction (License Decree), Royal decree of 9 September 2003 concerning the rules of an environmental impact assessment (Environmental Impact Decree), Royal Decree of 16 July 2002 concerning the mechanisms to promote electricity production from renewable energies sources, Royal Decree of 20 December 2000 giving the conditions for granting a domain concession and modified by the Royal Decree of 17 May 2004 (MB26/06/2004), as well amended by the Royal Decree of 3 February 2011, Royal Decree 28 September 2008 on the location of wind plants as a sine qua non condition to obtain a domain concession 8 P a g e

9 themselves, fully address MSP because of their single-sector focus. However, they provide benefits of MSP for the wind energy sector in terms of conferring the necessary legal security for investment and avoiding potential negative impacts from planning related decisions of other sectors. Nevertheless, in most European countries a comprehensive legal framework for MSP has yet to be developed. The key issue relates to legal certainty: if MSP does not lead to binding results and the contents of a given plan are not mandatory across different sectors or on the authorities responsible for the management of such sectors, then it cannot provide for the legal certainty necessary for investors. This is of course a particular issue for investors in O-RE given the significant capital costs involved. Consequently in its Communication on a Road Map on MSP the European Commission noted that MSP should be legally binding if it is to be effective (COM, 2008a). In a more recent Communication describing progress regarding MSP in the EU (COM, 2010), the European Commission noted that MSP is crucial for legal certainty, predictability and transparency and again stressed the importance of MSP having legal effect. However, as previously noted, the progress in establishing formal legal frameworks for MSP by the Member States has been relatively modest to date. Since 2001 the most significant progress has been made by Germany, largely as a result of pressure from the wind energy sector. By reason of its federal constitution, Germany enjoys a split approach to MSP with competence over the EEZ held by the Federal Government, with the Laender being responsible for MSP within the territorial sea. In the UK progress has been made in terms of the development of a legal framework for MSP with the adoption of the comprehensive Marine and Coastal Access Act (MCA 2009). Moreover under the UK s devolved Constitutional settlement, Scotland adopted its own MSP legislation the Scottish Marine Planning Act in 2010, passed within the overall framework for the MCA Poland too has now modified its landuse planning legislation (through the Act on Maritime Areas of Poland and Maritime Administration) to also apply to MSP, while in the Netherlands the Water Act provides a legal basis for MSP. Other Member States have yet to develop MSP legislation. In terms of overall approach three basic models can be identified a) The approach of Germany and Poland has been to extend the basic (land-use) spatial planning regime out to sea. There are potential benefits and disadvantages to this approach. One disadvantage is that there are clear differences between land-use planning and MSP. These include: (a) the fact that MSP must operate in three dimensions (the seabed, water column and surface) while land-use planning is concerned primarily with activities on the surface of the land; (b) the fact that MSP must take account of both fixed structures (such as oil rigs and wind energy plants) and mobile activities such as fishing and navigation marine tourism; and (c) the fact that land-use planning is implemented around private land ownership and use which does not find an obvious equivalent at sea. On the other hand, though, land-use planning 9 P a g e

10 procedures, in terms of for example consultation and mechanisms for the development and the adoption of spatial plans, will usually be well established. Furthermore the extension of spatial planning to the sea can facilitate a clearer, indeed seamless, planning link between land and sea embracing the all-important coastal zone. To this end it is to be noted that the national report on Sweden finds that while the physical planning system for coastal and territorial waters is well established and which is undertaken by the relevant municipalities it is no longer considered as the most suitable basis for MSP. b) A second alternative is to create, as in the UK, a specific legal framework for MSP within an overall legal framework for marine management. An advantage of this approach is that it can take account of the specific nature of the sea in general and MSP in particular. On the other hand such an approach in many ways may entail starting from scratch and indeed the UK framework is only partially implemented to date. c) A third approach is suggested by the Netherlands whereby MSP is to be implemented through an amendment not to land-use planning legislation but to the Water Act. An advantage of this approach is that it may be easier to tie the ecological objectives of EU Marine Strategy Framework Directive (MFSD) 5, as well as the EU Water Framework Directive 6 which applies to near-shore waters, into the MSP process. On the other hand, as with the UK approach, new planning procedures would appear to be called. In practice it appears that the previous procedural experience of preparing a chapter on the North Sea within the Dutch National Spatial Strategy in connection with the current draft National Water Plan (Nationaal Waterplan) will act as an overall policy framework for MSP in the North Sea. 2.2 Recommendations At this stage it is too early to evaluate which is the best approach. Much will depend on the particular relationship individual Member States have with their marine areas as well as the particular features of their respective land-based spatial planning regimes in terms both of the scope and effect of such plans and the impacts they have on decision makers. A discussion of these variations in terms of land-use planning is clearly beyond the scope of this report. Nevertheless, on the basis of European experience so far as well as a careful consideration of basic legal principles the following basic recommendations can be made in terms of the legal and policy framework for MSP. First of all there is a need for the adoption of comprehensive primary legislation, in the form of an act or a law, for MSP. It is difficult to see how an appropriate legal framework for MSP could ordinarily be adopted on the basis of subordinate legislation, given that to be effective it will need 5 Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for Community action in the field of marine environmental policy OJ L p Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy OJ L 327, , p P a g e

11 to guide and indeed regulate the implementation of other items of primary legislation that relate to different sectoral activities (e.g. a navigation act or renewables law). Second, such legislation should be comprehensive in the sense not only that it clearly sets out the basic procedures for MSP (in terms of consultation, the planning process, enforcement, dispute resolution etc) but also because it brings all activities that use maritime space within a defined area (within the territorial sea and/or the EEZ and/or on the continental shelf) within its purview. Thirdly the legal framework for MSP will need to be completed through the adoption of subordinate legislation and guidance notes as appropriate. It goes without saying that adequate resources will need to be made available in order to ensure effective implementation. 11 P a g e

12 3 DATA AND INFORMATION MANAGEMENT 3.1 Why is data and information management important to MSP? Data and information management is important for MSP, not only in order to create spatial plans but also for governments to assess development plans and for renewable developers to provide the evidence to be able to better select sites. The ability of MSP to make the best use of the maritime space, avoid conflicts and protect natural resources depends on the availability and, moreover, quality of data and information on which it is based. An up-to-date overview of environmental, socio-economic and geo-technical aspects provides a basis to determine development opportunities, assess impacts of a potential development and also to compare it with current or future planned spatial uses and likely conflicts. It is also often important to understand how different spatial uses interact; one example in this sense is how fisheries nursery grounds are unlikely to be compatible with sand extraction, whereas mariculture may be compatible with offshore wind farms. One of the key findings of the EU Integrated Coastal Zone Management Project (Baltcoast) was that the success of conflict resolution depends on the quality of information available (Baltcoast, 2005), and concludes that for data to be useful it must be: up-to-date, objective, reliable, relevant and comparable. 3.2 Progress per sea basin It is immediately apparent that the North Sea countries have proceeded well in terms of data and information management for MSP purposes. Germany and Belgium both have fairly comprehensive datasets for both the territorial sea and EEZ that are integrated into layered Geographic Information systems (GIS). In Belgium this is one GIS system covering marine environmental data 7, while in Germany there are two: a GeoSeaPortal offering access to environmental data and a system known as CONTIS providing data on different uses of the sea 8. Both countries also make this data freely available and much of it is accessible through the internet. Belgium has the added advantage of having one centralised institution that coordinate data collection and synthesis. Data sets in the Netherlands are also fairly comprehensive and available in GIS format but are not yet integrated into a centralised GIS system. Instead different institutions are delegated owners of different data sets thereby preventing overlap. There are however plans to improve data sharing and this has been started with meta-information complied by the National Oceanographic Data Committee (NODC). In the UK (bordering both the North Sea 7 This data is centralised at MUUM (Management Unit of the North Sea Mathematical Models), which is a department of the Royal Belgian Institute of the Natural Sciences. 8 BSH developed the GeoSeaPortal which offers a central access to basic and specific geological data about the sea and its coasts, available at CONTIS is a database provided by the BSH which focuses on the German Continental Shelf and the Exclusive Economic Zone, available at 12 P a g e

13 and the Atlantic Sea) there is an integrated GIS system that has been complied by The Crown Estate and available to wind farm developers but this is not publically available. Progress in Denmark is more measured as although there are significant efforts through the National Survey and Cadastre (including its responsibility by law to implement the INSPIRE Directive) there are still a number of different maritime data sets that have not yet been integrated into a single GIS system. By comparison countries bordering the Baltic Sea appear to have made less progress in relation to data and information management, with the exception of Lithuania where there are current effort to integrate different data sets into a single GIS system, although this is being coordinated at an EU level through the BaltSeaPlan rather than at the national level. Other Baltic Sea countries are characterized by the availability of some information but with gaps and also by a lack of coordination or integration into a single GIS system. For example, although there are a number of different data sets in Finland the quality of the data for MSP uses has been questioned (Iuga, 2010); data and information in Poland was described as rather patchy (Blažauskas & Suzdalevand, 2011); and in Estonia there is a lack of data coverage within the EEZ. There are no integrated GIS systems for these countries or for Latvia or Sweden. In constrats, there are current efforts in Lithuania to integrate different datasets into a single GIS system through an initiative coordinated at the EU level, through the BaltSeaPlan Project 9. Progress in countries bordering the Atlantic Coast and Irish Sea is mixed. Both UK and Portugal have made significant progress with integrated systems, while data and information management in other countries (Spain, Ireland, France) appears to be more sectoral with more limited integration. Although data is not fully comprehensive in Portugal there are efforts underway to extend the data coverage and integrate data into a single GIS system and much of the data is publically available within a WebGIS interface. In the UK there is extensive environmental data and some socio-economic data integrated into a single GIS system known as the Marine Resource System (MaRS), although as mentioned above this data is run by the Crown Estate, and the main problem seems to be the lack of access to this data. Both France and Spain have extensive datasets but these are not always available in GIS although there have been significant improvements in France recently in this respect. Ireland s data sets also appear to be sectoral and lacking in socio-economic data. The Mediterranean region has made some progress in terms of data and information management. Spain and France have been mentioned above and both collect a range of data although not all of this is available in GIS format. In Greece and Italy relevant data is also collected but is collected by a range of different institutions and in different formats making it difficult to integrate and use for maritime planning purposes. However, there has been an effort in Greece recently by the Centre for Energy Resources and Saving (CRES) to collect all relevant data for MSP and this should improve further with the establishment of an independent authority for O-RE. 9 For more information, please check the BaltSeaProject initiatives at 13 P a g e

14 3.3 Best practice in data and information management for MSP This summary of best practice in data and information management focuses on the following areas: Availability; Geographic Coverage and Mechanisms for Collection & Dissemination: i) Coordination/Integration; ii) Data format & accessibility; & iii) Ongoing data collection and monitoring Availability In terms of data availability there are three key data categories that are needed for MSP (Wagner, 2010). Access to spatial socio-economic data is an essential tool to determine the current use of the maritime space (e.g. for shipping, pipelines, mariculture, fishing) and potential areas of conflict. This needs to form the basis of any planning activity or assessments of new developments. Geo-technical data provides data and information on what resources, e.g. wind speeds and consistency, provide opportunities for new O-RE developments. Environmental data enables planners to assess the current state of natural resources, what areas may need protection and the likely impacts of sector activities. A comparison of all the data and information types collected and disseminated by the different member states leads to a list of categories that would ideally be included in a data and information management system (see Table 1). In many countries environmental data is more comprehensive than socio-economic data, and while this is very important to determine possible environmental impacts long-term maritime planning also needs to have a good picture of all the current and possible future activities and uses of the maritime space. For example, as part of the process of developing a maritime spatial plan in Germany a number of different GIS maps were created to take stock of the currently uses of the German EEZ in the North Sea and Baltic Sea. These have been regularly updated (2002, 2004 and 2007) and used as a basis to develop the spatial plan (Plancoast, 2008). Key data types required for MSP Area Key categories Biological/Ecological data Habitat mapping/biotopes Marine Protected Areas Sea pollution/water quality Species distributions at similar spatial and temporal scales (sea birds, fish, marine mammals, reptiles & benthic species). Listed and threatened species highlighted. Seasonal water column characteristics Marine substrates/seabed mapping Environmental Impact studies (from previous developments) Socio-economic data Present and future uses of marine environment Shipping routes and intensity of use Location of underwater cables & pipelines Sector activities (oil & gas; aggregates, dredging, disposal, tourism, aquaculture, military, large & small-scale fishing) Archaeological data Coastal infrastructure and other built environment including wrecks Geotechnical data Geological mapping (1:50 000) 14 P a g e

15 Bathymetry Meteorological conditions including wind speed Salinity Tide stress & currents Wind speed data Climatic scenarios Geographical coverage It is important for datasets to cover both the territorial waters (generally up to 12nm) and the EEZ. Often datasets are more developed within territorial waters and less so in the EEZ, with some countries having no coverage of the EEZ and others only partial coverage for some data types. However some countries, such as those in the Mediterranean, do not have any EEZs clearly explaining the reasons for absence of data for these zones. There is also the difficulty that there may be different institutions responsible for data in the coastal zone, within territorial seas and the EEZ Mechanisms for collection & dissemination Coordination Probably the most important element of data and information management for MSP is the coordination and integration of data. A large range of data types can be available but if these are managed by a range of different institutions, and in different formats with limited ability to integrate them on a spatial platform (such as GIS) it severely limits its application to maritime planning purposes. Given the history of data collection in the maritime zone and the different expertise required (i.e. ranging from oceanographic research to specific species monitoring and socio-economic data collection) there are often a large number of institutions responsible for all marine data collection. In this case, it is important to have clear guidelines on who is responsible for the different data sets that should be collected, and guidelines on data formats and sharing. For example, in the Netherlands there are a number of different institutions involved in data collection and in order to avoid duplication of effort institutions have been designated owners of certain data and others update their data from them. In addition the National Oceanographic Data Committee (NODC) provides meta-information on datasets and collecting activities. Even where there are a number of sources of information it is still possible and important for the data to be managed and integrated into a centralized GIS system. Belgium has achieved this by centralising data required for MSP at the Management Unit of the North Sea Mathematical Models (MUMM). The management of data for planning purposes is often far more advanced for terrestrial rather than MSP. For instance in Germany the flow of data required for terrestrial spatial planning system has been legally formalised through a cadastre. All relevant authorities and companies are obliged by law to provide certain data to a coordinating unit at regular intervals e.g. every six months. The law specifies the format of 15 P a g e

16 the required data. Once the cadastre has been updated it is made accessible to all participating parties and public institutions. The INSPIRE directive (2007/2/EC) represents a driver in a number of countries to harmonise spatial data collection and dissemination, although significant progress on making a data system operational and publically accessible is not required until The directive requires each Member State to develop a national web-based application to distribute spatial data sets specified by the Directive, among others relevant to the marine zone: oceanographic geographical features, sea regions, habitats and biotopes, species distribution, energy resources, mineral resources, population distribution, aquaculture facilities and area management. Data format and accessibility It is generally agreed that the best format for maritime spatial data is a layered GIS system that is publically available and at minimal cost. Significant data sets that are well coordinated and integrated are of no use until they are available in a suitable format to the right stakeholders for planning purposes. A number of countries have made use of web-based interactive maps, for instance both Germany and Portugal use a WebGIS system (Figure 1). Portugal made this available to stakeholders involved in the Marine Spatial Planning process and Germany has made the portal publically available and barrier free. In contrast in a number of countries certain data are often only available to commercial partners or at a high cost. For example a comprehensive GIS system that has been built with a wide range of publically available data sets is only currently available to commercial partners of the Crown Estate. Figure 1. Portugal s WebGIS interface 16 P a g e

17 Ongoing data collection and monitoring As indicated earlier, data is only useful and relevant if it is up-to-date. This requires coordination of regular data collection that is fed back into an integrated system useful for MSP. In terms of socio-economic data and current use of the maritime space, it is also important to understand potential future uses to assist planning and reduce potential conflicts. 3.4 Recommendations Based on the criteria designed for assessing MSP progress and experiences of the different member states, it is possible to define characteristics of best practice in terms of data and information management. Characteristics of best practice in Data and Information Management: Comprehensive ecological, socio-economic and geo-technical data is available throughout the territorial sea and EEZ Data collection is coordinated by an overarching strategy to avoid duplication of effort and to ensure that formats are compatible. Different institutions are designated owners of certain data types. This will need to take into account the range of different institutions that are likely to be responsible both for different data types but also for different scales e.g. the coastal zone, river estuaries, territorial sea and EEZ. There is a central institution that coordinates data collection and integration into a GIS format useful for planning Institutions that act as owners for certain data types are required by law to regularly update data (at specified intervals) and report this to the central coordination institution. Data are publically available in a GIS format Data are effectively used within the MSP process both in developing maritime spatial plans and assessing the merits of potential developments In order to achieve this ideal throughout the member states there are a number of steps that can be taken: Capitalise on the INSPIRE directive to improve the collection and dissemination of maritime spatial data, but ensure efforts are in addition to current spatial maritime data and not parallel to these; Continue to use EU regional projects to push for progress in MSP and particularly data and information management, but ensure that coordination efforts are mainstreamed into national policy and legislation. EU Regional projects addressing Integrated Coastal Zone Management (ICZM) or Integrated Maritime Spatial Planning (IMSP) appear to provide a coordination role for data and information management in a number of countries. Such a role either needs to continue at the regional level or effectively mainstreamed at the national level. 17 P a g e

18 Encourage the use of legislation to make one centralised institution responsible for collating all data relevant for MSP with other institutions legally bound to provide regularly updated data. 18 P a g e

19 4 PERMITTING AND LICENSING Permitting and licensing play key a role in Renewable Energy planning and implementation. In the context of Maritime Spatial Planning (MSP), permits or licences are the means whereby the overall objectives of MSP are translated into the rights and duties of individual project participants. 4.1 Best practice in terms of permitting and licensing Guiding Principles Many actions in the planning and implementation stages of Offshore Renewable Energy Projects (O-RE) projects are subject to permits and licensing and the main question is the extent to which the issue of permits is coordinated between different sectors e.g. maritime planning or electricity supply, the sectoral agencies, and between the overall objectives, in other words how streamlined and transparent is the process. The administrative procedures and the number and duration of permits have also been addressed by the WindBarriers project 10 which allows a complementary view to be taken. Furthermore, the process of applying for, determining and issuing permits has a cost both to the state and to individual applicants. The extent to which permitting procedures are transparent and simple therefore gives an indication as to their relative ease of use, indirectly to the cost to applicants and e- the overall coherence of the spatial planning system. The legal framework for issue of licences or permits should be clear and efficient, but most importantly the institutional set-up (jurisdiction and cooperation/coordination) should be designed in a way that allows for a final decision that covers all aspects of a permit in a comprehensive, coherent, consistent and cost/effective manner. The implication of this is that the relationship between all authorities (on different levels, local, regional or national, or sectors) involved in licensing should be well-coordinated, and the division of competencies and between the authorities should be clear. This is important since the underlying idea is that the overall setup should allow for all relevant aspects/impacts of the licensing decision to be dealt with in an integrated and comprehensive manner. The evaluation reflects growing degrees of clarity of jurisdictions and the ability of the system to provide for an integrated and comprehensive decision. 10 The major objective of the IEE funded project, WindBarriers project (01 December November 2010) was to obtain quantifiable data on barriers to administrative and grid access affecting the deployment of the wind energy development in the EU countries. This project constituted the first attempt to systematically collect and quantify administrative and grid access data at EU level. 19 P a g e

20 As the effectiveness and efficiency of coordination generally grows with a decreasing number of actors involved, it seems intuitive that there would be more efficiency if fewer agencies are involved although it remains necessary to bear in mind that this may not always be the case. A more segmented system, but with strong links or communication, may also produce integrated and speedy decisions. These are the sort of considerations to be borne in mind when developing generalised good practice in this area derived from the experience of Member States according to the present study Permitting for Wind Power in EEZs Assessment of current practice A great variety of permits and licenses are required by Member States across the Community with a multiplicity of names and definitions. The commonest groups, however, involve those for construction, those for connection to the grid, those for use of the EEZ or a lease of area and those of an environmental nature often linked to an environmental impact assessments (EIAs), although it would probably be true to say that no two have the same. Therefore some harmonisation of permits by type or, since state legislations vary, at least by objective, would help produce a more coherent strategy in the EU. A particular case in point is the EIAs. As an artificial island under Article 60 of the United Nation Convention on the Law of the Sea (LOSC 1982), a wind power structure may be prohibited if it threatens a rare or fragile ecosystem or causes interference with recognised shipping lanes. Thus there are specific responsibilities incumbent upon a state when it is considering licensing an operation. More specifically, within the EU, particular attention must be paid to projects which may impact Special Areas of Conservation (SAC) under the Habitats Directive (92/43/EEC) or the Special Protection Areas (SPAs) under the Birds Directive (79/409/EEC). States may have their own polices on protected conservation areas and there are also a number of international obligations in association with ratification of international agreements and conventions. With these considerations it is clear that a major source of interaction with Offshore Renewable (O-RE) projects will be with the ecosystem and conservation sectors and that consequently an EIA as a prerequisite for licensing should be a must for best practice. A further consideration is the content of those EIAs that are required. Taking the typical areas of impact such as basic information on spatial and temporal variability for benthos, benthic habitats, fish, mammals (e.g. harbour porpoise) as well as resident migratory or feeding birds, to which landscape might be added, OSPAR has made recommendations on the minimum criteria that should be in an EIA to be acceptable for licensing 11. Some harmonisation of EIAs particularly, both with respect to request and content, would be a 11 OSPAR Convention for the Protection of the Marine Environment of the NE Atlantic: guidance on environmental considerations for offshore windfarm development. OSPAR Agreement P a g e

21 contribution to best practice in line with the Strategic Environmental Assessment (SEA) Directive 12 and the Environmental Impact Assessment (EIA) Directive 13,14. Some wider assessment of the extent to which other interactions are being taken into account in the planning might also be added as a further condition of the licensing process in support of MSP generally. There are some further anomalies in the permit process, particularly in the Mediterranean Basin. Mediterranean countries such as Italy and Greece for example record data on permits within the EEZ as not available in the national reports. The clear reason is that these countries, like all others in the Mediterranean, have yet to claim an EEZ and have only their 12nm Territorial Seas. As has been made clear (MRAG 2008) coastal states have virtually no rights to MSP in the waters of the High Seas, so much of the Mediterranean is not currently subject to it. Since the Mediterranean is a relatively deep basin any wind power installations currently tend to be in the relatively shallow areas within the Territorial Seas. However, there is already one project which tests this. There is a current proposal to the Government of Italy from the 4Wind project to build wind farms on shallow banks on the underwater limestone ridge between Sicily and Tunisia that separates east and western basins (Figure 2) 15. Figure 2. Proposals for 4Winds project showing 12nm Territorial Sea and potential EEZ limit for Italy In this case the wind farms are to be built outside the existing jurisdiction of Italy and also the EU since the EEZ has yet to be claimed. However, under Article 77.3 of the LOSC the coastal state has the use of the 12 Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment. OJ L 197, , p Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment. OJ L 197, , p Council Directive of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (85/337/EEC) as amended OJ L 216, , p P a g e

22 seabed without an EEZ claim being made, so Italy can authorise it; but under what rules of planning permission and permitting since Italy currently doesn t have these as the national report underlines it? Furthermore, the cables pass through the Territorial Seas and can conflict with well established fishing interests although these, in part, should be subject to permits. What this shows is properly established maritime zones are a prerequisite for best practice in offshore renewable energy and without them MSP itself becomes virtually impossible where it is most needed hence the significance of the underlying legal basis. There are a number of other areas in the Mediterranean where similar situations could arise and, indeed France has a legal basis to introduce temporary concessions in emergencies, outside of the Gulf of Lions. A few Mediterranean countries have such legislation in place but none have fully claimed an EEZ. France has made moves to claim a limited EEZ 16 and may be the first to do this in 2011 (interviews in DG MARE ongoing project MARE/2010/05). In those counties that do have EEZs, namely those of the Atlantic and Baltic basins, the number of documents or permits required for an offshore wind farm project can vary from two to five where clearly, according to the above guidelines, the lower the number the better with regard to probable effectiveness and efficiency of the process and of the countries surveyed five required only two, including the Netherlands, England, Wales, Scotland and Ireland, so this is achievable. These tended to include some form of construction permit, some environmental protection and impact assessment, as well as a license to connect to the grid although a concession or domain allowance may also be needed. In some cases, even though a number of permits may be required there may only be one point of application which has been called a one-stop shop (MRAG 2008). Thus, efficiency is not just a question of the number of documents or permits that are required but also the number of agencies they need to be obtained from. For example in Spain, five permits are required but all from the same agency. This situation of having only to deal with one point of application could be taken as indicating that coordination is less of a problem, and this one-stop shop referred to above has been found in several countries such as Netherlands and Scotland. Germany has only one relevant state authority but there is also the need to go through the regional authorities of the Landers largely in connection with the cabling. The WindBarriers project found that the lowest number of authorities involved were in Denmark, Netherlands, Belgium and Spain as well as Germany, a similar conclusion to the present assessment. With some countries employing up to four institutions to provide permits and licenses, co-ordination between them and the institutions and the applicants is clearly important. Most however have yet to put in a proper co-ordination process, with the exception of Denmark through the Danish Energy Agency, and P a g e

23 Spain according to the national reports. There may also be the need for regional co-ordination particularly in Germany, whilst in Sweden co-ordination is largely regional through four regional authorities. Clearly, however, a wider commitment to co-ordination across the Community is to be encouraged. Conclusions on best practice There is therefore no single best practice in dealing with licensing and the steps it takes. The principle objectives are to streamline the system to provide a license process that gives assurances that interactions between the wind power sector and other users of the sea have been duly taken into account, in accordance with the principles of MSP, whilst keeping down the administrative costs. In terms of this streamlining it is probably significant that by and large those countries with the greater reported installed capacity or with the highest targets for planned installations tended to have the most streamlined process. The UK has the highest reported installed capacity at 1,341MW with targets for a further 12,900MW by 2020 whilst, followed by Denmark with 853MW installed capacity. Germany and the Netherlands have the second highest targets of 10,000MW and 6,000MW respectively with significant existing installed capacity. The WINDBARRIERS project showed that in terms of the number of direct and indirect contacts necessary to gain full approval Denmark required 5.15, Netherlands 6.27 and UK 15.2, all of which are well below the overall average for all Member States for Offshore wind projects of Thus, whilst there may be no single set of best practices to achieve the streamlined co-ordination process what this does show is the importance of a committed policy to the sector and to maritime planning in achieving the objective of an efficient process. Consequently the spring board of best practice is a sound and proactive policy towards Offshore Renewables. It seems that one of the key driving factors for the introduction of more integrated, comprehensive maritime spatial systems is the extent of competing economic demands from different sectors on the space and an interest to develop economic activities in marine areas. Without making invidious comparisons since each state has its own priorities, in Germany there has been a particular policy commitment to increasing exploitation of offshore wind energy, which exposed a range of potential spatial conflicts that needed addressing; whilst in France up until recently, despite having jurisdiction on one of the largest maritime zones in the world, development of economic maritime activities has not been a priority of the French Government, which has focused primarily on rural areas (agriculture, industry). Similarly for Poland, there are few activities in the Baltic Sea (limited to fishing, shipping as well as some oil and gas extraction), and therefore there has been less of a need for MSP. In France, the situation has recently changed somewhat, in as much as tenders have now been launched and maritime areas opened for offshore wind parks. A further overall indicator of the efficiency and effectiveness is the total duration of the permitting process since co-ordination must be a factor here. The duration of the permit process can be as little as 10 weeks in Sweden or 6 months to a year in Belgium and just over a year in the Netherlands although it can be up to four years in some of the UK administrations. Related to this is the period of validity once permits have 23 P a g e

24 been granted. A similar indicator was used in the WindBarriers project where it was found that the average building consent time was 18.5 months for offshore wind projects a not dissimilar period to those found here and, again no country was able to conduct this operation in a markedly shorter time. A possible exception could be Sweden as mentioned above although this is dependent upon the building permit being accepted first time around. The national reports offer little on the relative direct costs of permits but this is unlikely to be a significant feature since these direct costs will be tiny in relation to the costs of the project and even compared to the indirect and administrative costs of going through the permit process itself. A further indicator of the efficiency of the process is the clarity of information provided by the authorities to the users and applicants. This was found to be clear, often using a standardised process, in seven Member States notably Denmark, Germany, Spain, Sweden, England, Wales and Scotland. Until recently the legislation in France had been regarded as being unclear but in 2009 the process was greatly simplified. A planning exercise and consultation launched in early 2009 and completed in September 2010 identified an initial ten areas for the development of offshore wind farms. These offshore wind developments will be going through a two-round tender procedure and this procedure will reduce uncertainties and consenting complexity for offshore wind farms. A linked factor to the time taken for the permitting process is the length of time the permits, once obtained, are valid for. In a number of countries including the Netherlands, Spain and Germany this can be around two years or up to five years in the case of Poland although in some cases approvals may be extended. There may be some conditionalities on validities, for example in Belgium the domain concession is not valid until the EIA and sea cable permits are approved. Such conditionalities may ultimately be a major factor in arriving at a best practice for permitting, particularly in respect of EIAs, since it ensures a joined up approach to MSP as discussed above. Indeed, one particular condition which would contribute to best practice is that the permit can only be granted on the undertaking to dismantle the structures when the project comes to the end of its life in compliance with Article 60. A further condition upon providing a permit should be the presence of a detailed and practicable emergency plan that contains actions for a rapid and adequate response to minimise impacts in case of breakdown accident or other emergency during construction and operation as per the Bonn Agreement. There should generally be a precautionary element to the permit process Permitting for Wind Power in Territorial Seas For most non Mediterranean countries the process is reported to be the same both in the Territorial Sea as per the EEZ. Only Germany has differences in the roles of the authorities since the regulation of the Territorial Sea is the responsibility of the regional authorities of the Landers with the Federal Authority 24 P a g e

25 being responsible for the EEZ outside the Territorial Sea. Nevertheless for a wind farm to be built in the EEZ would still involve the Landers in cable and grid connection documentation. To limit wind farms mostly to the EEZ, that is beyond the 12nm zone as is the case for Germany, would not necessarily be best practice from the sector point of view but in the case of Germany the limitation is specifically linked to the environmentally protected status of the Waddensea. This does highlight the role of MSP since it enables the state to give clear indications as to its priorities, in this case environmental protection. The Mediterranean countries, Italy and Greece, gave no detail on EEZ process since at the moment they do not claim EEZs. Their process refers entirely to the Territorial Sea therefore. As such, Greece requires several permits but only through two authorities whereas Italy has one unified process which is required to go through several authorities. It is also significant that, in Italy, regional authorities are also reported to play a part. The difficult position of Mediterranean countries which plan wind farms outside the Territorial Seas is highlighted above. For whilst a country may have the right to put a structure on the sea bed of the continental shelf and lay cables there is still the necessity of integrating the infrastructure with other economic activities such as navigation, fishing or other energy sectors in areas outside national planning jurisdiction. Technically the UK has also not claimed an EEZ, but in fact, its Territorial Sea and a Fisheries Protection Zone which covers the area of sea which would equate to the EEZ if it were claimed. This, however, has no jurisdiction for wind power except in as much as it interferes with fishing. It does, however, have considerable implications for the general commitment to MSP, including wind power, as discussed above in relation to overall policy commitment Offshore Wave and Tidal Power There may be fewer opportunities to develop tidal power in some sea-basins since tidal range is very small throughout the Mediterranean basin and also in much of the Baltic Sea basin. In addition, details on permitting requirements generally are very sparse because power generation from these sources has not yet progressed very far. A possible exception is France which has the tidal power station at La Rance in Brittany which has been operating since 1966 with an output of 240MW 17. Nevertheless no permitting arrangements were recorded for France. Eight countries seem to have targets for 2020: Finland, France, Ireland, Italy, Portugal, Spain and the United Kingdom 18. There are reported to be demonstration plants in Denmark, Scotland, Sweden and Portugal and, just recently in 2010, the Scottish Government has issued leases in respect of 1.2GW for projects in the Pentland Firth, demonstrating a clear political will and plans to develop wave and tidal energy. 17 Source: The European Ocean Energy Association (EU-OEA), February National Action Plans for the promotion and use of renewable energy (NREAPs), available at 25 P a g e

26 The national reports indicate that most countries have not developed the permitting process very far and therefore clearly the first step in developing a best practice for most countries would be to start developing an integrated process with the appropriate permitting arrangements if they have any intention of developing significant wave or tidal power Grid Infrastructure and Connection Permits Most countries need some form of permit to connect to the grid, mainly obtained from the ministries of energy or from the national energy agency. Some countries such as Sweden, Germany, Belgium and the Netherlands, also require a permit to lay cables on the sea bed. Spatial planning of the coastal state in this case is limited as cable can be laid relatively freely in an EEZ under UNCLOS, although the coastal state has more legal jurisdiction in its coastal waters. The state may need to take into consideration the potential negative effects of cables and pipelines particularly on special ecosystems 19 or conflicts with fishing which is an issue with 4Winds project in Italy. There are cases where permitting cables is carried out by a different administration to the power generation units themselves. For example in Germany the state agency BSH issues permits for the wind power installations outside 12nm whilst the cables which pass through territorial sea -are licensed by the individual Laender such as Schleswig Holstein. This can lead to longer permitting times and more complex procedures, since more authorities are involved and clear guidance appears missing on offshore grid planning. Once again good practice would suggest a precautionary approach in permitting at this stage and should also be conditional on the taking up of cables at the end of the project life time, a point which is often neglected in this area. Clearly, the permitting of these elements needs to be integrated with that for the actual power structures particularly since connection permits may need to be obtained typically from different sectoral authorities. Few countries through the national reports have provided information on the clarity of the process or the extent of co-ordination between institutions with regards to grid connections. With respect to best practice there may be a weak link in a holistic approach demanded by MSP in the wind power sector Progress of Permitting Process Using the criteria developed by the project four countries might be considered as being closest to best practice in terms of a streamlined system, these being Denmark, Germany, Scotland and Netherlands. Of these countries it was considered that they showed: a streamlined transparent process with information readily available with no contradictions; simplified and clear procedures; clear mechanisms to coordinate and manage the overall decision making process for the allocation of space; and some also demonstrated a one-stop shop approach where a single application process can cover multiple licence applications whilst taking into account the overarching MSP objectives. With reference to this last point, Spain for example, 19 Wolf, R., Rechtliche und naturschutzfachliche Aspekte beim Bau und Betrieb von Stromkabeln, Federal Agency for Nature Conservation, BfN P a g e

27 requires a high number of licenses but clear and coordinated procedures provided a one-stop shop for the process as a whole. For the project proposer there are clear advantages in the simplification of a one-stop shop. In terms of maritime basins the countries of the North Sea, where most of the existing offshore installed capacity is currently located, generally have well developed permitting systems. Perhaps a little surprisingly the Atlantic coasts, given the wind climate, seem poorly served at the moment with respect to planning for O-RE although France has recently taken important steps. The poor development of the Mediterranean Sea basin may partly reflect relatively fewer opportunities with existing technologies given the nature of the deep basins but also the rather anomalous legal position given the lack of EEZs. This, in itself, leads to more potential conflict with other users such as fisheries as discussed above. Germany is a rather unusual case with the responsibilities split in the maritime zones between Federal and Regional authorities. In addition, or possibly because of this, the WindBarriers project shows that Germany needs a rather longer than average time to complete the whole process. Nevertheless the permitting process in Germany definitely accelerated with the introduction of MSP in 2009 showing the synergy there can be between MSP and the Offshore Renewable sector. It may also be significant that in terms of installed capacity the leading countries generally have the most transparent and coordinated systems. This is possibly due to learning from experience and the pressure for economic development of the sector. This in turn is generated by political will and a determined planning policy which remains the greatest driver. Clearly there are cases where MSP is synergistic with O-RE development but probably the policy commitment is the greater element. For example, the key to the British system, which has overseen the greatest installed capacity of any Member State, is a mixture of pragmatism, as has been discussed, and also a perception that the planning agencies themselves are favourably disposed towards offshore wind farm proposals again emphasising the importance of commitment. The UK does not favour a binding MSP approach but nevertheless does have a criteria based planning system suggesting that maritime planning as such, remains important. Ultimately, best practice in the permitting process should include a legal framework for issuing licences and permits which is clear and efficient, but most importantly the institutional set-up, including jurisdictions and cooperation/coordination mechanisms should be designed in a way to allow for a final decision covering all aspects of a permit in a comprehensive, coherent, consistent and cost/effective manner. 4.2 Recommendations Based on the previous analysis the following policy recommendations emerge: Permitting should be conditional on a full and satisfactory environmental appraisal or EIA; 27 P a g e

28 The EIAs should be harmonised to ensure that all of the most significant impacts and considerations of the interactions between offshore installation and operation are adequately taken into account; Properly established maritime zones and EEZs are a prerequisite for the proper planning process as exemplified by the wind farm experience in the Mediterranean; Properly formulated policies with clear commitment towards both Offshore Renewables and MSP need to be promoted since these tend to lead to the development of more streamlined permitting processes; The permitting stage offers the ideal point at which proposers can only be given permits providing they fulfil some essential conditions consistent with a precautionary approach. These include: clearance of a fully evaluated EIA or equivalent; a binding commitment to dismantle infrastructure and cables after the project lifetime being a condition of the permitting; an evaluated emergency action plan. Planning conditions in the Mediterranean outside territorial seas to be clarified; Policies and planning conditions for wave and tide power to be promoted; A more integrated approach between infrastructure permitting and grid connection permitting to be promoted. 28 P a g e

29 5 CONSULTATION 5.1 Why is consultation important to Maritime Spatial Planning (MSP)? Cooperation amongst stakeholders is important to minimise conflicts within MSP. Although stakeholder involvement can be more time consuming initially, participatory planning can lead to savings in the long term. The Plancoast Handbook on Integrated Maritime Spatial Planning (Plancoast, 2008) outlines three major advantages: The added-value of stakeholder knowledge; Cost and time efficiency by avoiding possibly disputes and legal challenges; Improved publicity and policy acceptance the success in implementing MSP is largely dependent on stakeholders willingness to cooperate. The experience of BaltCoast also found that individual stakeholder groups are more inclined to accept necessary restrictions if they are involved from the outset in the planning process. In cases where individual interest groups felt left out they stuck positions of maximum demands making a reconciliation of interests impossible. A wide and open discussion, however, led to a better understanding of necessary restrictions (BaltCoast, 2005). In the EU Guidelines for an Integrated Approach to Maritime Policy (COM, 2008b), there is significant emphasis placed on promoting effective stakeholder consultation: Member States developing their own national integrated maritime policies are recommended to promote and facilitate appropriate stakeholder structures, allowing broad participation by stakeholders in governance of maritime affairs, taking measures to increase the capacity of the social partners and ensuring a transparent decision-making process. 5.2 Progress per sea basin In terms of consultation many of the North Sea countries have made significant progress on consultation within MSP. Where there are maritime spatial plans in places such as in Belgium and Germany, significant public and sector consultation on these plans took place before they were approved. For example Germany undertook a 3-month public consultation period before development of the draft MSP and ongoing consultations for a year before the MSP was finalised. Belgium had a six month period of stakeholder meetings and interviews before development of the Master Plan for the North Sea. All North Sea countries (Germany, Belgium, The Netherlands, Denmark and the UK) have effectively translated the EIA Directive into national legislation and this allows for public consultation. In most countries information is made publically available and details are given on how the consultation processed influenced the final decision. 29 P a g e

30 Levels of public consultation are more mixed within the Baltic Sea region. Sweden appears to have an effective public consultation system that takes place within municipal planning processes (which cover coastal areas and the territorial sea) and for specific projects there are three points at which stakeholders can comment or submit objections. Finland also conducts annual consultations concerning planning issues, and Poland has conducted voluntary consultations as part of its pilot Maritime Spatial Plans covering the western part of the Gulf of Gdansk. For the other Baltic Sea states consultations take place as part of the EIA process, and the extent of consultation varies. In Estonia, for example, a decision needs to take account of stakeholder comments and concerns whereas in Latvia stakeholder involvement appears to be more limited. However, there have been some pilot MSP processes in many countries as part of the EU-funded BaltSeaPlan project and these have included considerable stakeholder involvement ( Progress in countries bordering the Atlantic Sea is average. In the UK consultation is generally actively sought out for most sector plans, Strategic Environmental Assessments and for individual development projects. There are also high rates of stakeholder participation and responsiveness. For other countries in this area, there does not appear to be evidence of: consultation actively reaching out to all relevant stakeholders, comments being incorporated into decisions or an appeal process but this may be due to a lack of information as discussed in Section 3: Data and Information Management. Some countries in the Mediterranean region, such as France and Spain, show average progress but there is limited evidence of consultation in Greece and Italy have low scores for although consultation does take place for specific projects this is usually at a low level and often late in the process. 5.3 Best practice in consultation for MSP The following section summarises best practice in consultation for MSP, in terms of i a Stakeholder representation; b) Consultation on plans and projects; c) Transparency; d) Timeframes and e) Appeals process. While consultation refers to soliciting opinions from both intra-government and civil society stakeholders the emphasis of this section is on civil society as intra-governmental coordination is considered in more detail within sector-conflict management Stakeholder representation The relevant stakeholders for consultation on MSP will depend on the different countries in questions. However, a review of stakeholder involved across the EU countries provides a list of interest groups that may need consideration. These include both intra-governmental stakeholders and civil society or private institutions (Table 1). Table 1: Key interest groups for MSP Public/government institutions (central, regional and local government) 30 P a g e

31 Economy/sustainable development Project developer Shipping/navigation Ports Customs/Enforcement agencies Fishing and Aquaculture Tourism/recreation/landscape Cultural Heritage/archaeology Nature conservation/environment Sand/gravel extraction Oil & Gas Offshore renewables Energy distribution and pipelines Defence/Radar Air traffic NGOs Local communities Public Research/universities Experience in regional MSP programmes suggests that it is important to avoid large numbers of stakeholders within the consultation process as it may hamper constructive discussion and agreement (Plancoast, 2008). In this sense, it may be more efficient to set up associations that represent stakeholder groups and act as a focal point for governments. For instance in the UK, various stakeholder groups have been established to help deal with specific sector issues including NOREL to deal with navigation issues; FLOWW to deal with fisheries and OREEF for environmental issues. Consultations can also be more effective if coordinated by one institution. For example in Scotland there is one central agency (Marine Scotland) responsible for planning of marine renewables and organising consultations for individual projects. Marine Scotland uses its expertise to determine which stakeholders need to be consulted and what areas need more or less attention, and ensures that there is significant informal consultation before the formal process starts to quickly identify and seek to resolve conflicts. This is also the case in Germany where the Federal Maritime and Hydrography Agency (BSH) coordinates all consultation for MSP in the EEZ Consultation on Plans and Projects As all EU member states are required to translate the EIA Directive into national legislation, there is the provision in all countries for stakeholder consultation on individual development projects as part of the permitting process. The degree to which consultation takes place and the degree of stakeholder involvement, however, varies considerably between the different countries. For example in the UK stakeholders are actively involved in the consultation process and comments are actively sought from representative groups. In contrast, while consultation is still a legal requirement in countries such as Estonia, Latvia and Greece, details of new O-RE projects are not actively sent to specified groups but the system relies on groups accessing proposals and sending in comments. 31 P a g e

32 What particularly distinguishes some countries is not just consultation on specific projects, but stakeholder involvement in developing an overall maritime spatial plan which sets out a strategy for use of the maritime space and may provide decision rules or preliminary zoning. Germany has a detailed Maritime Spatial Plan for its EEZ and the initial development of the draft MSP was completed with a 3 month public consultation period and public hearings held for the North Sea and Baltic Sea regions. It then took another year until the plan came into force due to the many concerns raised during the consultation process. Portugal has also held a number of consultative workshops to develop maritime spatial plans under its POEM programme and used the opportunity to collect spatial data and information. Progress on development of the spatial plans is provided through a website and several public information sessions. While initial consultations are important to develop a plan, it should not be a one-off activity. This has been recognised in Belgium with continued stakeholder involvement to assist review and update of the maritime Master Plan for the Belgium part of the North Sea, implemented incrementally since Some countries have not yet developed Maritime Spatial Plans, and in this case the possibility for stakeholder involvement in a more strategic overview is limited to consultations on sector plans or programmes. The Strategic Environmental Assessment (SEA) Directive formalises the requirement for stakeholder consultation during the assessment of sector plans or programmes although, as with implementation of the EIA Directive, the degree of involvement is likely to vary. SEAs have been used as a tool in the UK and Ireland for offshore renewables sector plans, and in Ireland the government has compiled stakeholder comments and published a Ministerial SEA statements illustrating how feedback from the public consultation has been considered. There may also be wider consultations held on a new sector policy outside of the SEA requirements. For instance, in France there have been public meetings held and discussion with a range of stakeholders to draft a new Integrated Maritime Policy Transparency and timely provision of information There is an important link with public access to data and information so that stakeholders can make informed choices or decisions. Information on strategies, plans and projects needs to be made accessible in a timely manner to give stakeholders a chance to contribute to the process. There is a clear difference between active consultations where O-RE project plans may be sent to specified stakeholders or where interest groups are invited to attend meetings and passive consultation where the project documents may be available on a government website or announced in a newspaper but no specific comments are solicited. For example, in Germany as part of an Integrated Coastal Zone Management (ICZM) project in the Oder Estuary significant effort was placed on educating stakeholders and decision-makers on the key issues facing the area and demands on the space including eutrophication, pollution, tourism and Natura 2000 sites. As part of this transparency it is important in that the final decisions on plans or projects indicate how stakeholder comments have been addressed. 32 P a g e

33 5.3.4 Time frame for consultation There needs to be sufficient time dedicated to stakeholder consultation for Maritime Spatial Plans, Sector Plans or individual projects. This often varies between the different countries. For example, in terms of Plans Germany dedicated 3 months to public consultation on its Maritime Spatial Plan, while Belgium allowed 6 months. In relation to consultation on O-RE projects as part of the EIA process, timeframes again vary between different countries. For instance Germany requires stakeholder feedback within 2 weeks (for offshore renewable projects) after publishing the document, while Denmark allows 8 weeks. However, it is also necessary to consider the efficiency of the consultation process and a shorter time period may not always mean less consultation. It may also be the case that where there is a detailed maritime spatial plan which has stakeholder approval, consultations on individual projects will be far more streamlined as many of the potential conflicts have already been resolved. Another important consideration is whether stakeholder consultation is a one-off process or whether there are various stages in which different interest groups can comment. In Sweden, stakeholders are able to give comments at three different stages during the application for a project development: i) an initial consultation phase; ii) following a comprehensive exhibition of the proposed plan and iii) during a final public exhibition where the final project is presented illustrating how previous comments have been addressed. Similarly in Germany during the development of municipal spatial plans that go out to 12nm in the maritime space, there is a four stage process: 1) Planning conferences where information is disseminated on potential plans; 2) Participants give contributions and measures that should be included in the plan through thematic meetings; 3) The administration answers any questions and accepts or rejects comments previously provided; and 4) A final presentation and contributions before the consultation is closed Appeals procedure Effective consultation on Maritime Spatial Plans or projects needs to include an appeals process, although time limits may need to be imposed to prevent significant delays. For instance in Denmark, the decision of the Danish Energy Agency to award offshore permits can be appealed in writing within 4 weeks of publication of a decision. In Sweden appeals are further limited to stakeholders that have given comments earlier in the consultation process. 5.4 Recommendations Based on the criteria designed for assessing MSP progress and experiences of the different member states, it is possible to define characteristics of best practice in terms of consultation for MSP: Defined and legally binding systems for consultation on individual projects, sector plans and overarching maritime spatial plans; 33 P a g e

34 All relevant stakeholders are represented in the processes (see Table 2); A central institution is responsible coordinating consultations and allowing cooperation between partners; Where appropriate stakeholders are organised into associations or representative groups to streamline the consultation process; Stakeholders are actively consulted so that they are specifically sent relevant information and directly invited to participate; Stakeholders are provided with sufficient information to make informed choices. This information is provided in a timely manner and is easily accessible; Stakeholders are able to provide input into projects, sector plans and MSPs at various stages of the process including initial scoping phase; detailed presentation and a final presentation; For sector plans and overarching maritime spatial plans, stakeholders are involved in ongoing consultations for regular plan reviews and updates; There is a legally binding system for appeal with defined rules and time limits; Informal consultation is encouraged before the formal processes starts for early identification of potential conflicts or issues; Consultations cover all potential impacts including the laying of sea cables for transport of electricity from energy platforms to onshore sub-stations. 34 P a g e

35 6 SECTOR CONFLICT MANAGEMENT 6.1 Why is sector conflict management important to Maritime Spatial Planning (MSP)? Sector conflict management is one of the overall aims of an integrated approach to MSP. The objective is to make best possible economic and societal use of the maritime space, reconcile different interests and claims on the space and streamline developments. Managing potential sector conflicts early on prevents objections from being raised later in the process and avoids objections reaching the courts which can be lengthy, expensive and may lead to cancellation of the project. Sector conflict management is also a coordination issue and facilitates development by ensuring that government departments are in agreement and do not give conflicting advice. 6.2 Progress per sea basin In the North Sea one of the main mechanisms for managing sector conflicts has been through zoning exercises. In some countries such as Germany and Belgium zoning has been adopted as part of an overall maritime spatial plan, whereas in other countries such as the Netherlands and the UK zoning has been done on a sectoral basis and is non-binding. Another method has been the development of sectoral guidelines to help minimise conflicts, for example practical solutions such as recommended buffer zones and noise/glare reductions methods. Consultations are a major method of managing conflicts and as seen under the Consultation Criterion this is well developed for the North Sea countries. In the Baltic Sea there have been a number of pilot maritime spatial plans developed as part of the EUfunded BaltSeaPlan project. However, these plans are for the most part voluntary and have not yet been integrated into national level policies. In many cases conflicts are managed through consultations as part of Environmental Impact Assessment of individual projects. Sweden has a well developed consultation process which goes a long way to resolve conflicts, but it is not clear whether there are binding rules on prioritising sectors. Within the Atlantic a number of countries (e.g. UK, France, Portugal, Ireland) have undertaken sectoral plans (e.g. for offshore renewables) that have identified opportunity zones where there are minimal conflicts and areas with a high level of potential conflicts. These exercises have often been accompanied by Strategic Environmental Assessments (SEAs) which have provided stakeholders an opportunity to highlight issues or win-win solutions. In the Mediterranean area there have also been some sectoral zoning exercises and related SEAs, but the success of these in managing conflicts is often related to the quality of stakeholder consultation (which is lower for Italy and Greece than for France and Spain). 35 P a g e

36 6.3 Best practice in sector conflict management for MSP Cross-sector coordination What appears to be an important feature of sector conflict management is effective coordination across the range of government institutions and authorities involved in maritime issues. In Denmark for example a maritime director-general forum has been set up to allow for cross-sectoral discussions and in Belgium the coastal guard is responsible for coordinating discussions between 17 maritime related government institutions. These processes assist cross-sectoral discussions at a strategic and project level. For instance, in Italy there is a process by which a service conference can be set up to involve all the relevant authorities in order to reach a decision on granting a maritime license or permit Spatial Planning (Zoning) of the maritime space Another key tool in managing sector conflicts is through zoning the maritime space, as this already rules out areas that would not be possible or desirable due to presence of other activities. There are many approaches to zones from creating maps of current use to well-defined zones and specific decision rules in the case of any conflict. A useful starting point is mapping out current and future anticipated uses of the maritime space. Although Latvia has not yet undertaken a zoning exercise and defined priority or reserved areas, it has developed a map of sea-uses and potential conflicts. In addition to mapping, a very useful exercise is the analysis of compatible and incompatible uses, as has been undertaken for Portugal. This highlights where activities may be able to coexist in the same space, for instance mariculture may be compatible with offshore wind where as protected fisheries nursery grounds are unlikely to be compatible with sand extraction. Another step in the process is zoning on a sectoral basis. For instance a number of countries have undergone exercises to identify suitable area for offshore wind energy: Belgium, France, Denmark, the Netherlands, Ireland, Spain and Greece. While these mapping exercises may not have been translated into policy, they are useful to identify areas of opportunity with minimal conflicts and areas to avoid owing to competing claims on the space. Where these sectoral zoning exercises constitute a sectoral plan, they are also often accompanied by a Strategic Environmental Assessment (SEA). This provides stakeholders with the opportunity to comment on the future anticipated developments of the sector and highlight potential conflicts as well as possible resolution mechanisms. Sectoral zoning can only go so far and depending on the interest group may not attempt to resolve all conflicts. For instance Swedish Board of Fisheries has appointed areas of national interest for commercial fisheries which might clash with other interests. It may be necessary to clarify priorities between different functions and study potential synergies between users. The German maritime zoning exercise was based on lengthy cross-sectoral discussions and a public consultation period, and provides a strategic overview for nearly all relevant sectors. It also goes into more 36 P a g e

37 detail by identifying priority areas and reserved areas and decision rules where different uses overlap. For instance where a priority designation for pipelines overlaps with priority areas for wind energy, pipelines are given priority. The embellishment of zoning with decision rules is essential for deciding what spatial use should take precedence in the case of a conflict. Nevertheless there is discussion on the extent to which zoning is always necessary and whether it is also possible to effectively manage maritime space using a criteria-based approach, as another approach that has been proved to work efficiently. For instance in the UK rather than having planning inclusion or exclusion zones the UK Government has established a series of criteria that are used when approving or rejecting a planning proposal. The criteria include whether the proposed development conflicts with a series of criteria including consideration of impact on various constraints, whether hard or soft. A hard constraint, for example, would be the existence of oil platforms or major shipping routes. The constraints tend to be more numerous nearer the coast. Based on these criteria the Crown Estate, owners of the seabed, have earmarked zones that are suitable for offshore wind farm development. These are not planning zones, although they would have taken likely planning consent into consideration, but leasing zones. An offshore wind-farm developer therefore requires a lease from the Crown Estate and then to go through the procedure for planning consent where the application will be judged against the criteria. What is clear that even where a detailed zoning exercise has been undertaken activities should not always be excluded from taking place outside of priority zones and there should be the opportunity to consider outliers on a case-by-case basis. The initial German zoning exercise was criticised by offshore wind developers as it effectively limited the potential areas for development and did not take into account future technological advances or changes in priorities, and this was changed in the final plan. In contrast, the UK system does not result in any formal exclusion zones for wind farms. Although the Government recommended that the bulk of offshore wind farms be outside the 12 nautical mile limit, it also said that offshore wind farms have not been excluded from this range. Projects are therefore considered on a caseby-case basis. For example some recent offshore wind farms (Round 3) are being planned within the limit although the large majority of the planned capacity will be outside this near shore area. For some countries, zoning and related decision rules needs to be legally binding to be effectively translated into practice. While the pilot maritime spatial plans in the Baltic Sea provide essential experience, they will not be fully implemented unless they are legally required. In many of these countries stakeholders who have had traditional use of the maritime zone (e.g. fishermen, navigation) have been unwilling to negotiate as part of a voluntary exercise given they benefit from the status-quo. As with any plan, a zoning exercise also needs to be regularly reviewed and updated to take into account dynamic changes in the use of the sea and environmental conditions. 37 P a g e

38 6.3.3 Conflict minimisation agreements and compensation Further to zoning, it is also possible to define voluntary or binding guidelines to enable sectors to operate side by side with minimal conflicts. In Denmark, voluntary guidelines for the offshore wind sector have been developed to provide practical measures for reducing interferences, such as defined light requirements for Air Traffic Control, compensation calculations for fisheries and a requirement for farms to be sited at least 200m from line of sign of a radio relay link. Germany has also included incidental provisions within the maritime spatial plan such as the use of non-glare materials and measures for noise reduction. As indicated, Denmark has defined compensation requirements for any loss of fishing ground to a development, such as offshore wind. However, not all countries are comfortable in providing prescriptive guidelines on compensation and the UK for example prefers to resolve issues through consultation Consultation as a mechanism to manage conflicts Even in the cases where countries do not have specific mechanisms to manage conflicts in the maritime zone, public consultations in the context of Strategic Environmental Assessments (SEAs) for sectoral plans and Environmental Impact Assessments (EIA) in the case of individual projects provide an opportunity for potential conflicts to be highlighted and addressed. The effectiveness of this mechanism will depend on the quality of the consultation as discussed in Section 5. Developers often find that it is useful to maintain dialogue with stakeholders throughout a project in order to minimise conflicts or objections. For instance in Sweden there are examples of offshore wind developments that have maintained open communications with local residents by answering questions and holding one-to-one meetings. 6.4 Recommendations Based on the criteria designed for assessing MSP progress and experiences of the different member states, it is possible to define characteristics of best practice in terms of sector conflict management: Government authorities and institutions representing different sectors are effectively coordinated; Information is effectively shared between sectors in a common format (see also Section 3: Data and Information Management); Up-to-date maps available on the current and future anticipated use of the maritime zone (see also Section 3: Data and Information Management); Legally-binding Maritime Zones (or clearly defined criteria) have been identified that define priority and reserve zones, as well as decision rules for resolving conflicts. There is however flexibility within the zoning by not ruling out developments outside of priority areas; 38 P a g e

39 Regular consultations are undertaken as part of a legally binding review of maritime spatial plans and zones; Accompanying sector guidelines exist for minimising conflicts. Some actions may be legally binding where appropriate; Effective and active consultation carried out for overall Maritime Spatial Plans, sector plans and individual projects (see also Section 5: Consultation); Stakeholders involved early in the process of developing a Maritime Spatial Plan. Possibility of compensation mechanisms There is also a role for regional initiatives to support sector conflict management as many of these issues will also be common to cross-boundary cooperation. In this sense the BaltSeaPlan project provides useful pilot approaches to MSP and conflict resolution. However, these approaches need to be translated into national legislation and policy to have significant impacts on managing sectoral conflicts. 39 P a g e

40 7 TRANSBOUNDARY COOPERATION The aim of this section is to examine how and to what extent the legislation in the Member States that are the subjects of this review provide for transboundary MSP. The need for transboundary cooperation as regards MSP is absolutely clear. A completely logical ordering of maritime activities in one maritime zone may be largely at odds, in spatial terms, with equivalent MSP measures in an adjacent or opposite zone. Such a need for cooperation will tend to arise mainly in terms of economic activities but the need to coordinate conservation and environmental protection measures undertaken within the context of MSP cannot be ruled out. 7.1 Current practice in terms of transboundary cooperation As seen in the national studies, national legislation can really only address issues of cooperation relating to sub-national boundaries (e.g. between the German Federal Government and the Laender or between the different countries of the UK), as the--the scope of national legislation is by its nature limited to the national level. The most that national legislation can do in terms of international cooperation as regards MSP is to direct decision-makers to take into consideration relevant MSP activities in neighbouring or opposite States and possibly to confer the necessary powers on officials or politicians to negotiate to that end. The only way that a complete mechanism for supra-national cooperation in terms of MSP can be established is at the international level or at the European level in terms of the countries considered in this report. At this time, as described in the national reports, EU nations are typically party to a large number of international agreements which concern various different aspects of the use of maritime space on a sectoral basis. However, as noted above, there is no supra-national instrument under EU or international law that is concerned with MSP in general or transboundary cooperation relating to MSP in particular. Having said that, the preparation of comprehensive maritime spatial plans will most likely require a strategic environmental assessment pursuant to the SEA Directive. Moreover, Article 7 of the SEA Directive contains express provisions on transboundary consultation in cases where a proposed plan or programme is likely to have significant effects on the environment in another Member State or where a Member State, likely to be significantly affected, so requests. This at least provides a partial mechanism for transboundary cooperation on MSP albeit from a particular environmental perspective. In any event bilateral cooperation may in itself be insufficient in terms of the planning of the use of maritime space within Europe s increasingly congested seas. Instead a sea-basin approach may be more appropriate in terms of ensuring that cooperation addresses all relevant linkages. One example of such an approach is Visions and Strategy around the Baltic Sea 2010 (VASAB 2010) which is an intergovernmental forum made up of the countries around the Baltic Sea, including Norway, Russia and 40 P a g e

41 Germany that participates also through representatives from the regions which are adjacent to the Baltic Sea Region (Lander in Germany, Oblasts and Republics in Russia). VASAB 2010 promotes a physical planning perspective in the area of the Baltic Sea and proposes guidelines and recommendations for work on greater international consensus and has produced Common Recommendations for Spatial Planning of the Coastal Zone in the Baltic Sea Region. As the name of this document implies, though, it is not binding in nature. To this end a number of existing EU mechanisms for transboundary cooperation in terms of planning the use of natural resources may provide useful models including the river basin management planning mechanisms for international river basins foreseen by the Water Framework Directive (WFD) and the joint sea basin planning and coordination measures foreseen by the Marine Strategy Framework Directive (MSFD). Other relevant experience may be derived from the Espoo Convention 20 as well as provisions relating to transboundary activities in the SEA Directive as already mentioned and the EIA Directive in terms of the environmental implications of MSP. It is important to emphasize though that MSP evidently goes beyond an assessment of potential environmental impacts alone. To be effective transboundary consultation and coordination procedures would need to be mandatory and implemented through appropriate mechanisms for joint decision-making and conflict resolution. The issue as to whether or not the EU has the necessary legal competence to adopt such legislation, though, is beyond the scope of this report. Similarly as regards transboundary cooperation and coordination across sub-national boundaries, appropriate legislation and related mechanisms will be necessary for effective implementation. In this connection it may well be the case that if formal MSP is introduced on the basis of specific maritime MSP legislation as in the UK (as opposed to a modification to land use planning legislation as in Germany) an important administrative boundary may in practice be that between land-use planning and MSP. Again some form of coordination mechanism will be necessary, possibly within the context of Integrated Coastal Zone Management. 7.2 Recommendations Use the SEA Directive to ensure transboundary consultation where there are likely to be environmental impacts on another Member State and build on the joint sea-basin planning and coordination measures foreseen in the MSFD; Draw on experience of other EU mechanisms for transboundary cooperation such as the WFD as well as the Espoo Convention; 20 The Convention on Environmental Impact Assessment in a Transboundary Context adopted at Espoo on 25 February ILM (1991). 41 P a g e

42 Support regional sea-basin cooperation approaches including agreed recommendations or guidelines for MSP; Ensure that national legislation directs decision-makers to taken into consideration relevant MSP activities in bordering member states; Work towards transboundary consultation and coordination procedures that are mandatory, starting with a review on whether the EU has the necessary legal competence to adopt such legislation; Implement transboundary consultation and coordination procedures through appropriate mechanisms for joint decision-making and conflict resolution; Ensure sufficient legislation to facilitate transboundary cooperation and coordination across subnational or boundaries, such as administrative boundary between land-planning and MSP. 42 P a g e

43 8 IMPLEMENTATION OF MSP 8.1 Why is implementation important to Maritime Spatial Planning (MSP)? Implementation of Maritime Spatial Planning (MSP) is the translation of policies and plans into practice. The benefits of achieving MSP in practice were summarised in a recent UNESCO publication (Ehler and Douvere, 2009). 8.2 Best practice in implementation of MSP This chapter aims to assess whether, given the right policies and legislations are in place to what extent have countries developed Maritime Spatial Plans, how these are being implemented and enforced and whether they are being monitored and reviewed. It also draws from experience on MSP to highlight what is considered best practice Planning process Based on a range of guidelines that have been published recently on best practice for MSP (Box 1 below), it is possible to determine a range of linked steps involved in developing a maritime spatial management plan: 1. Defining goals and objectives of MSP and establishing legal authority; 2. Pre-planning; 3. Obtaining financial support; 4. Information and data collection;: 5. Defining and analysing conditions & generating alternative spatial options; 43 P a g e