EA is mandatory for the following offshore oil and gas projects:

• Any development that is expected to produce more than 500 tonnes of oil per day
• Any development that is expected to produce more than 500,000 cubic metres of gas per day
• Pipelines greater than 40 km and with an overall diameter of more than 800 mm. Where a pipeline is wholly within a 500 metre radius around a well or fixed installation then an ES is not required

An ES may also be required for a modification to a project or revision to production consent, unless the modification or revision decreases production, has no change on production levels or increases production only by a small amount. Prior to applying to EDU-LED to request a consent revision or renewal that involves an increase in the production level, the applicant should assess the proposed increase against the EIA thresholds (*).

• If the average requested annual rate of production represents an increase greater than 500 tonnes of oil per day or 500,000 cubic metres of gas per day, an EIA Direction or ES will be required
• If the increase in production does not exceed the base year, i.e. the first year of the consent in subsequent years then an EIA Direction or ES will not be required
• If the increase is for an increase in the base year production then an EIA Direction or ES will be required
• If the increase in subsequent years exceeds production in the base year, an EIA Direction or ES will be required

The base year for the comparison must be the current consented level of production for the field, i.e. the consented level of production during the calendar year of submission of the request for the consent revision. The comparative level of production can be the proposed level of production during the next calendar year, or the proposed average annual level of production during the duration of the requested consent. The averaging system could negate the requirement for an ES for a short-term increase in production that exceeds the thresholds (e.g. a large increase in the first year after intervention operations, followed by a rapid decline to levels that are lower than the thresholds), and EDU-LED is willing to consider applications for longer term production consents, whenever this is appropriate, if it would simplify the environmental application and approval process.

Notwithstanding the above guidance, it should be noted that Department for Energy Security and Net Zero has the discretionary right to request a PON15D or ES for any proposed revision of production consent, irrespective of whether the increase in the level of production will exceed the thresholds mentioned above. However, those powers would only be used under exceptional circumstances.

The Department for Energy Security and Net Zero (then DECC) has provided guidance on applications for environmental approval for revised production consents (see the Guidance Notes under the Legislation tab). They also provide examples of how to assess the potential EIA requirements for proposed production increases (Word document).

An EIA/ES will also be required for the extension of a pipeline by 40 km and a diameter of 800 mm or more regardless of whether or not the pipeline forms part of a development.The following sections outline the requirements for the following:

1. Seeking a Direction as to whether an ES is required
2. How to proceed if a Direction is granted for no ES
3. How to proceed if an ES is required

Procedure To Determine if ES is Needed

If a preliminary environmental investigation indicates that the project or modification is unlikely to have a significant adverse effect on the environment, and none of the mandatory conditions apply, then the operator may apply for a dispensation from the requirement to undertake the full ES process (i.e. a Direction). The procedure for doing this is to complete a PETS application and submit this to the Department for Energy Security and Net Zero. The application requires detail about the proposed project and the environmental sensitivities of the area. It may be useful to prepare a preliminary environmental assessment as background to the permit. If a Direction is wanted then it must be explicitly requested as part of the PETS submission. Applications should be made using the following forms (downloadable from the Department for Energy Security and Net Zero website):

• Wells and sidetracks – Drilling Operation Application.
• Pipeline – Pipeline Operation Application.
• Production platform – Production Operation Application.

PETS applications must be submitted electronically to the Department for Energy Security and Net Zero via the UK Oil Portal.

The application must be submitted in conjunction with a PON16 (Application for Consent). A PON16 proforma can be downloaded from the Department for Energy Security and Net Zero website.

Note: Under the new Portal Environmental Tracking System (PETS) (see DECC guidance), the Master Application Template (MAT) can be accompanied by various Subsidiary Application Templates (SATS) required for the following consents in addition to seeking an EIA Direction if so desired:

• Chemical permit under the Offshore Chemicals Regulations 2002
• Consent to Locate under Section 4 of the Coast Protection Act 1949 – See Navigational Interference
• Disturbance Assessment of European Protected Species under the Offshore Marine Conservation (Natural Habitats &c) Regulations 2007 as amended by The Offshore Marine Conservation (Natural Habitats, &c.) (Amendment) Regulations 2012 – see also Geological Survey and Seismic
• Marine survey Notifications or Geological Survey consents, e.g. for VSP Survey or other acoustic surveys
• MCAA or a Marine Licenses

The chemical permit application sections and information for other consent applications can be completed and submitted at a later date (at least 28 days before operations), if submitting an application early in order to seek a Direction.

Schedule 1 to the EIA Regulations 1999 details what DECC will take into account in deciding whether a project is likely to have a significant effect on the environment.

Procedure if ES is not needed and Direction Granted

If the Department for Energy Security and Net Zero is satisfied that the assessment in the EIA Direction SAT is valid and that the operation will not cause adverse environmental effects then a Direction may be given dispensing with the requirements for an ES. The Direction will be valid for a stipulated period (up to 2 years). The operator is required to retain a copy of the Direction issued by the Secretary of State so that it can be submitted with the Application for Consent (e.g. PON4 or PON16).

Procedure for Preparing Regulatory Environmental Statement

If the Department for Energy Security and Net Zero is not satisfied with the assessment in the EIA Direction SAT and believes that the operation will cause adverse environmental effects then the Department for Energy Security and Net Zero will require a statutory ES to be completed. The operator may also volunteer to undertake an ES.

Procedure if ES is not needed and Direction Granted

Once the Department for Energy Security and Net Zero has received the MAT and EIA Direction SAT, it will issue a list of environmental authorities that should be consulted during the preparation of the ES. These authorities may have information that should be included in the ES. Prepare the ES in accordance with the requirements of the Regulations. Schedule 2 to the EIA Regulations 1999 details the required contents of the Environmental Statement. If an EIA Direction SAT has not been submitted, the Department for Energy Security and Net Zero should be informed of the planned project and the decision to submit an ES in support of this. Where an ES is accompanying a Revised Production Consent only, reference should be made to the DECC Guidance. Where a full ES is required under the amended Regulations, the scope of the ES should be restricted to the potential effects of the proposed increase on the production only.

Once the ES is finalised an Application for Consent (PON16) should be completed and then both documents should be submitted to the Department for Energy Security and Net Zero. At the same time, the ES must be publicised by placing an advert in the national, and any relevant local newspapers. The Department for Energy Security and Net Zero prefer to be sent 4 copies of the ES (and any additional material called for).

Public Notice

The ES must then be made available to both statutory consultees and the public. The Department for Energy Security and Net Zero will inform the operator who the statutory consultees are, as each consultee should be sent a copy. The public must be informed in the newspaper notification (see the Snippets tab) where they can obtain a copy.

Both the public and statutory consultees have a set period (normally 28 days) in which they can comment to the Department for Energy Security and Net Zero on the ES. The Department for Energy Security and Net Zero must take any comments relating to the ES into account when determining whether to grant consent. It should be noted that the Department for Energy Security and Net Zero is obliged to take account of any comments made after the consultation period up to the date they grant consent (also see “Possibility for Overturning Consent” below).

The Department for Energy Security and Net Zero may either grant consent or request further information. In the event of further information, the whole process of notice and public consultation is repeated.

If consent is granted it may include consent conditions that must be complied with. The Department for Energy Security and Net Zero can refuse consent if it considers the potential environmental effects of the new project to be too adverse.

A Sample Public Notice can be found in the revised Department for Energy Security and Net Zero EIA Guidance (see the Snippets tab).

At least 3 months before the project approval is required (as time will be needed for the advertisement and consultation process referred to above). If this is not done then there is the potential to hold up the project considerably. Revised Department for Energy Security and Net Zero EIA Guidance Notes suggest 6 months as a maximum approval period. Project consent approval (e.g. Field Development Plan, PON4, Consent for Test Production) is dependent on ES approval, where an ES is required.

Note: Amendments to the EIA Regulations under the Public Participation Directive, which came into effect on 25 June 2005 means that if following submission of the ES there is additional information submitted which is deemed to be substantial, the additional information will be required to go to public consultation (i.e. further adverts in the press and an additional 28 day public notification period).

Under the Offshore Marine Conservation (Natural Habitats &c.) Regulations 2009 (as amended), a person is guilty of an offence if he:

(a) deliberately captures, injures, or kills any wild animal of a European protected species, or

(b) deliberately disturbs wild animals of any such species.

Disturbance of animals includes in particular any disturbance which is likely to:

(a) impair their ability:

• to survive, to breed or reproduce, or to rear or nurture their young, or
• in the case of animals of a hibernating or migratory species, to hibernate or migrate, or

(b) to affect significantly the local distribution or abundance of the species to which they belong.

Marine European Protected Species (EPS) includes all species of cetaceans, all species of marine turtles and sturgeon.

The onus is on the developer carrying out an activity to:

1. Assess the likelihood of committing a disturbance offence
2. Consider the need for mitigation measures
3. Decide whether to apply for a Wildlife Licence (see below).

A description of the assessment of the likelihood of committing a disturbance offence must be included in the PON14A application. Guidance on undertaking such an assessment is included in the JNCC’s The protection of marine European Protected Species from injury and disturbance for England, Wales and the UK offshore marine area. This document is currently being updated by the JNCC and a new link will be provided once the document is released.

If there is a risk which cannot be removed or sufficiently reduced by the taking of mitigation measures then a Wildlife Licence may be required to be granted by the regulatory authorities for a number of “purposes”. Purposes include “over-riding public interest” and “scientific and educational purposes”. Licences can however only be issued where there is no satisfactory alternative. It is expected that the majority of activities will not require a Wildlife Licence since their potential for disturbance will fall below the threshold of the office in the Regulations. Further information can be found on the European Protected Species (EPS) page.

Revisions to wildlife licenses effective from 1 January 2015 (England only)

Changes to general and class licence updates have been implemented after Natural England’s public consultation in 2014. From 1 January 2015, a licensee must make sure that they are operating under the conditions of these updated licences (as detailed here). 

ES approval and project approval are likely to contain conditions, in particular the expectation that commitments made in terms of environmental impact mitigation and management within the ES will be adhered to.

Council 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 environmentThe Directive aims to introduce a strategic environmental assessment before an area is opened for development. Access to resources might be denied on the basis of environmental scenarios, considered before an area is opened for licensing and the actual environmental impact together with the economic and social benefits are known.The scope of the Directive applies to projects of the type listed under Annexes I or II of Council Directive 85/337/EEC as amended; or may have a likely effect on a site designated under the Habitats or Birds Directive. Projects listed include extraction of petroleum and natural gas.An environmental assessment undertaken under this Directive, does not remove any obligation for environmental assessments under the EIA Directive (Council Directive 85/337/EEC).The UK implemented the SEA Directive in England and Wales through the Environmental Assessment of Plans and Programmes Regulations 2004. DECC has already started undertaking a series of SEAs for oil and gas activities on the UKCS.The Environmental Assessment (Scotland) Act 2005 came into force on 20 February 2006. This is the equivalent Scottish legislation. The Act repealed the Assessment of Plans and Programmes (Scotland) Regulations 2004.SEA is a key component of sustainable development establishing new methods in environmental protection and opportunities for participation in public policy. SEA achieves the following:

• Monitoring significant environmental effects of public sector strategies, plans and programmes
• Expert views are sought at varying stages from SNH, SEPA, Historic Scotland and the public
• A public statement demonstrating how public opinions have been taken into account

Guidance and an SEA tool-kit are available from the Scottish Government website.

The Public Participation Directive (PPD) (PDF document – 2003/35/EC) requires a number of aspects of public notification and consultation:

• An outline of main alternatives (if any) should be included in permit applications
• The public should be notified and made aware of any decisions making available relevant consents and permits with the reasons and considerations on which decisions have been based
• Public notification at the earliest possible time where the information can be provided on the nature of possible decisions
• Making available within time frames the necessary reports, advice issued to the regulator in accordance with legislation when applications were made and information relevant to a decision which only became available after advertisement of an application.

The Offshore Petroleum Production and Pipe-lines (Assessment of Environmental Effects) Regulations 1999 have also been amended in line with PPD:

• Mandatory EIA will be required for the extension of offshore developments where an increase in production exceeds 500 tonnes of oil or 500,000 m3 of gas per day. It also applies to the extension of a pipeline by 40 km and a diameter of 800 mm or more regardless if the pipeline forms part of a development.
• The Government must publicise information on any offshore oil/gas development in neighbouring states that may have a transboundary impact on the UK offshore environment.

This new PON relates to the reporting of non-compliance with consent conditions under the Energy Act 2008.Any non-compliance with the consent conditions relating to the provision of:

• Any lights, signals or other aids to navigation
• Stationing of guard ships in the vicinity of the operations
• Any other measures for the purposes of, or in connection with, controlling the movements of ships in the vicinity of the operations

These provisions must be reported immediately by completing this form and sending it to DECC and UK Hydrographic Office.

The PON 10 proforma can be downloaded from the UK Government’s website

Relates to SSI 2015/237, which takes account of the role of the new non-departmental public body, Historic Environment Scotland in relation to processes of development planning and environmental assessment. These Regulations which entered into force on the 1^st October 2015 and apply to Scotland only, takes account of the role of the Historic Environment Scotland, a new non-departmental, public body, in relation to processes of developmental planning and environmental assessment. These Regulations, which can be cited as the Town and Country Planning (Historic Environment Scotland) Amendment Regulations 2015, make amendments to the following:

• Environmental Impact Assessment (Scotland) Regulations SSI 1999/1;
• Town and Country Planning (Development Planning) (Scotland) Regulations SSI 2008/426;
• Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations SSI 2011/139;

Town and Country Planning (Development Management Procedure) (Scotland) Regulations SSI 2013/155.