Key Contacts: Alice Whittaker – Partner
On 31 March 2022, the Marine Protection Area Advisory Group released a detailed analysis summarising the results of its public consultation on Ireland’s network of Marine Protected Areas (MPAs). The public consultation began on 17 February 2021 and continued up to and including 30 July 2021. The consultation took place as part of the Government’s initiative to protect the marine environment through further designation of marine protected areas.
In December 2019, the Minister for Housing, Planning and Local Government established an independent group of experts, the Marine Protected Area (MPA) Advisory Group, tasked with providing independent and expert recommendations on how to support the expansion of a coherent network of Marine Protected Areas, in line with Ireland’s commitments under the Marine Strategy Framework Directive (MSFD) and EU Biodiversity Strategy. The MPA Group conducted extensive stakeholder engagement and produced a report entitled Expanding Ireland’s Marine Protected Area Network, which served as a supporting material for this public consultation.
In this report, the MAP Advisory Group noted that a very small portion of the marine environment is currently subject to protection, with only 10,420km² or 2.13% of Ireland’s total maritime area being covered by the Natura 2000 network of maritime Special Area of Conservation (SAC) and Special Protection Areas (SPAs) under the Habitats and Birds Directives. There is an absence of national legislation underpinning the implementation of MPAs beyond 12 nautical miles. The Wildlife Act is limited in its application to the foreshore, which roughly corresponds to the limits of the territorial sea. Protection of sensitive habitats and species beyond 12 nautical miles is therefore limited to measures taken under EU law (notably the MSFD, Birds and Habitats Directives) or the OSPAR Convention. Overall, the Advisory Group found that “Ireland’s network of protected areas cannot be considered coherent, representative, connected or resilient or to be meeting Ireland’s international commitments and legal obligations”. However, the Group also recognised that other environmental protection mechanisms are in place and that offshore developments applying for Maritime Area Consent (MAC) under the new marine governance regime will require an EIA and/or Appropriate Assessment before they can obtain planning permission from the Board (Semple M. Maritime Area Planning Bill 2021, Bill Digest).
MAPA was signed into law on 23 December 2021 and the relevant provisions governing the granting of MACs came into force shortly after, on 10 March 2022. The Act does not address MPAs, which will be dealt with in a separate piece of legislation. Concerns were raised, before the enactment of MAPA, that development permission may be granted in ecologically sensitive areas that could be designated as MPAs in the future (see: Joint Committee on Housing, Local Government and Heritage, 2021. Report on pre-legislative scrutiny of the General Scheme of the Marine Planning and Development Management Bill). Despite Ireland’s commitment to designate 30% of its marine area as MPAs by 2030, the development of MPA legislation lags behind the enactment of MAPA. Several offshore wind farms qualify as Special MAC cases and will shortly make their way through the newly established MAC regime. In due course, some or all of those proposed developments will apply for development permission. There is concern therefore, that further delays in establishing a system of designated MPAs may result in missed opportunities to consider MPAs in the context of those applications.
Of course, the protection afforded to SACs and SPAs is not strictly limited to the boundaries of those designated sites. For example, in the context of SPA birds, Article 4(4) of the Birds Directive expressly extends the protections to other ex-situ habitats used by those birds. Article 5(d) of the Birds Directive expressly prohibits the deliberate and significant disturbance of all wild birds, including SPA birds, particularly during their most vulnerable periods of breeding and rearing, and Article 12 of the Habitats Directive expressly prohibits deliberate disturbance of marine mammals, particularly (but not exclusively) during periods of breeding and rearing or migration, and also prohibits the deterioration or destruction of their breeding sites or resting places. These protections are subject to limited exceptions, and apply throughout the jurisdiction, not just within designated areas. Therefore, even within the existing legislative regime, it will be possible to ensure that the potential impact of projects on these species and their habitats will be subject to analysis and assessment in accordance with the Habitats and Birds Directives.
The public consultation extended over more than five months and culminated with an Independent Analysis and Report on Marine Protected Area (MPA) Public Consultation Submissions. In total, 2,300 submissions were received and showed strong public acceptance for marine protected areas. Over 99% of submissions received by the MPA Advisory Group supported the expansion of Ireland’s MPA network. The need for robust scientific backing and early stakeholder engagement with fishermen and coastal communities were considered central to the MPA expansion process. In essence, it was found that:
- the Programme for Government target of 30% of Irish waters to be protected by 2030 as part of the MPA network was supported; while the current level of protection (at approximately 2%) was not considered sufficient;
- 93% of respondents support the inclusion of existing conservation sites into the national MPA network;
- 91% support the key principles for the ongoing MPA process;
- respondents noted information and data gaps along with deficits in education around marine protection;
- respondents called for urgent action, based on evidence, along with increased research and resourcing, in order to protect our marine life and also the benefits to the economy and society that come from having a diverse and productive marine environment.
The findings of the consultation will inform the development of national legislation to enable the identification and management of MPAs. Work on developing a general scheme for MPA legislation is currently ongoing in the Department of Housing, Local Government and Heritage and is expected to continue into 2022.