12.4.1.4 EPS guidance 29.
The JNCC, Natural England and CCW (JNCC et al. 2010a) have produced draft guidance concerning the Regulations on the deliberate disturbance of marine EPS (cetaceans, turtles and Atlantic sturgeon Acipenser oxyrinchus), which provides an interpretation of the regulations in greater detail, including pile driving operations (JNCC et al. 2010b), seismic surveys (JNCC et al. 2010c) and explosives (JNCC et al. 2010d).
30.
The draft guidance details all activities at sea that could potentially cause a deliberate injury or disturbance offence and summarises information and sensitivities of species to which the regulations apply. The guidance refers to the Habitats Directive Article 12 Guidance (EC 2007) stating that, in their view, significant disturbance must have some ecological impact.
31.
The draft guidance provides the following interpretations of deliberate injury and disturbance offences under Regulation 39(1) of the Habitats Regulations and Offshore Marine Regulations, as detailed in the paragraphs below:
“Deliberate actions are to be understood as actions by a person who knows, in light of the relevant legislation that applies to the species involved, and the general information delivered to the public, that his action will most likely lead to an offence against a species, but intends this offence or, if not, consciously accepts the foreseeable results of his action;
Certain activities that produce loud sounds in areas where EPS could be present have the potential to result in an injury offence, unless appropriate mitigation measures are implemented to prevent the exposure of animals to sound levels capable of causing injury.”
32.
The term “disturbance” is not defined in Article 1 or Article 12 of the Habitats Directive or in the Habitats Regulations or Offshore Marine Regulations. Although not legally binding, The Habitats Directive Article 12 Guidance (EC 2007) states that:
“In order to assess a disturbance, consideration must be given to its effect on the conservation status of the species at population level and biogeographic level in a Member State. For instance, any disturbing activity that affects the survival chances, the breeding success or the reproductive ability of a protected species or leads to a reduction in the occupied area should be regarded as a “disturbance” in terms of Article 12.”
33.
Following amendments, the HR and the OMR better define the level of disturbance which constitutes an offence. Regulation 39(1)(b)(1A) makes it clear that any
Preliminary Environmental Information May 2014
East Anglia THREE Offshore Windfarm
Chapter 12 Marine Mammal Ecology Page 22
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