The protection of marine European Protected Species from injury
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
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