The protection of marine European Protected Species from injury and disturbance

Guidance for the marine area in England and Wales and the UK offshore marine area

In 2008, JNCC consulted on guidance on the new disturbance offence under the Habitats Regulations 2007 for England and Wales and the Offshore Marine Regulations 2007. The consultation ended in June 2008 and feedback was considered in the following months much improving the document. In January 2009 there were amendments made to the regulations, which meant that the guidance also had to be slightly amended to reflect those changes and this has meant a delay in its publication. Currently the guidance is in draft and should be published in 2011.

The JNCC, Natural England and Countryside Council for Wales have developed guidance intended to provide a resource for marine users, regulators, advisors and the enforcement authorities when considering whether an offence of deliberately disturbing or injuring/killing a marine European Protected Species (EPS) is likely to occur or to have occurred as a result of an activity. Marine EPS include cetaceans (e.g. harbour porpoise), turtles and the Atlantic Sturgeon.

The guidance document illustrates a preventative approach to ensure the strict protection of EPS in their natural range as required by Article 12 of the Habitats Directive. It provides an interpretation of the offences of deliberate capture, injury, killing or disturbance of any wild animal of an EPS, under regulations 39(1)(a) and (b) in the Conservation (Natural Habitats &c.) Regulations 1994 (as amended, HR) and the Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007 (amended in 2009, OMR).

Disturbance and injury have the potential to occur as a result of certain activities in the marine environment. The guidance will help developers, regulators and courts assess: a) the likelihood of an offence being committed; b) how this can be avoided; and c) if it can‘t be avoided, the conditions under which the activity could go ahead under licence.

The likelihood of an activity resulting in injury or disturbance to a marine EPS will very much depend on the characteristics of the activity, of the environment and the species concerned, hence the need for a case-by-case approach when assessing the risk of it occurring. Pursuing mitigation measures, alternative methods, locations and/or times for carrying out proposed activities might in some cases be sufficient to reduce the risk of causing offence to negligible levels. This would then negate the requirement for a licence.

If you require more information or a copy of the draft guidance, please contact us at or alternatively contact Sonia Mendes or Saville Gunn on 01224 266550.