Environmental Impact Assessment – Offshore
- Consent Needed and How to Obtain It
- Performance Standards
- Sampling/Monitoring Requirements
- Reporting Requirements
- Non Compliance
- Renewal and Variation
For information on the impact of Brexit on oil and gas environmental legislation, please refer to the pdf document downloadable from the Home Page.
|Key Legislation and Guidance:
For more detail on the Legislation relevant to this page, please use the following links:
EA is mandatory for the following offshore oil and gas projects:
|Where an EIA is not automatically mandatory, dispensation must be sought from the Department for Energy Security and Net Zero not to produce an ES. Projects (including drilling, modifications to existing developments, and Extended Well Test of >96 hours) are determined on a case-by-case basis. In general, projects in near shore or sensitive areas will be expected to require an ES.
|Modification or Revision to Production Consent:
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 (*).
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:
|How to Apply:
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):
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:
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.
|Who to Apply to:
|The completed PETS application and background environmental assessment (if done) should be submitted to the Department for Energy Security and Net Zero. The Department for Energy Security and Net Zero will consult with their statutory consultees who are MS/CEFAS and JNCC to determine whether to grant a dispensation or request an ES.
|When to Apply:
|The application, in which a Direction is sought, should be submitted at least 28 days before the planned project or modification along with the Application for Consent (PON16). However, if the Department for Energy Security and Net Zero consider the likely effects of the project or modification will have a significant impact on the environment, and do not issue a Direction, they will require an EA to be conducted and an ES to be prepared. The preparation of an ES and the carrying out of the required consultations will take at least 6+ months and may delay the project if the submission date of the PETS application and PON 16 is too close to the planned commencement date. Therefore, if not clear of the outcome, it is advisable to submit the PETS application and PON16 6+ months before the commencement date in case the Department for Energy Security and Net Zero requires an ES to be prepared. Where an EIA/ES includes information required for a Habitats Regulatory Assessment, an additional 4-6 weeks approval time should be allowed to allow for JNCC review.
|Permits for Chemical Use and Discharge:
|New projects subject to mandatory environmental impact assessment (EIA) under the Offshore Petroleum Production and Pipelines (Assessment of Environmental Effects) Regulations 1999 will also need permits under the Chemicals Regulations. The Department for Energy Security and Net Zero is willing to see the ES process used to minimise the need for a separate application to meet the Chemicals Regulations where sufficient detail is available. The information required for any permit application giving details of the chemicals to be used and discharged can be included in the ES but will need to be presented in an additional chemical permit application. See Drilling Chemicals, Pipeline Chemicals and Production Chemicals.
|Possible Outcomes From MAT and EIA Direction SAT:
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).
|How the Process is Initiated:
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.
|Preparing the 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.
|Schedule 3 Notification:
|A Schedule 3 Notification is required for the construction, maintenance, repair, replacement, protection or extension of a pipeline within 500 m of a well or another subsea or surface infrastructure to which it is directly or indirectly attached. The form is available here and should be sent to firstname.lastname@example.org.
|Submitting the ES and Application for Consent (PON 16):
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).
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).
|When to Submit:
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).
|Possibility for Overturning of Consent:
|The Regulations include a provision for parties to appeal through the courts to have the consent overturned. They have a period of six weeks to do this. If this is done then the consent will be suspended pending the court process. Appeal must be because some aspect of the required ES and consultation process has not been complied with.
|Deep Water Horizon:
|As information has become available about the Macondo incident, DECC has been considering its impact on the UK environmental regime.In line with existing DECC Guidance, EIAs are already required to include a detailed assessment of the potential environmental impact of a hydrocarbon release, broadly based upon the OPEP requirements but including significant additional detail in relation to the mitigation measures in place to prevent a release and the potential environmental impacts of a release. Operators have been recommended to include this assessment as an annex to the main body of the ES (or a standalone complete chapter), so that it can be maintained and updated as necessary and could form part of the OPEP justification document as required by the OPEP Guidance (see Oil Spill Planning).This EIA Guidance is unchanged, but the scope of the assessment must now be extended to match the revised scope required for OPEPs (see Oil Spill Planning).
|Habitats Directive and Birds Directive:
|DECC is obliged to take proper account of the obligations stemming from the Birds and Habitats Directives to protect and conserve the marine environment. A number of offshore sites have been designated as draft or possible SACs (see JNCC website).Where the Secretary of State considers that there may be significant effect on the conservation objectives, they may require a Habitats Regulatory Assessment to be undertaken.If this is the case, JNCC will recommend that as competent authority DECC undertakes a screening for a Habitats Regulatory Assessment (SHRA) or a full Habitats Regulatory Assessment (HRA). The ES or EIA Direction SAT should contain adequate information to enable DECC to undertake the assessment. See Habitats Regulatory Assessment page for further information.
|Assessment of Disturbance of Marine European Protected Species:
Under the Offshore Marine Conservation (Natural Habitats &c.) Regulations 2009 (as amended), a person is guilty of an offence if he:
Disturbance of animals includes in particular any disturbance which is likely to:
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:
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).
|Conditions in Consent:
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.
|If the project is likely to have significant transboundary effects these must be addressed in the EIA and reported in the ES.When seeking a Direction under the Regulations, the requirement for an EIA will also be determined (amongst other things) by the likelihood and significance of transboundary impacts.
|Strategic Environmental Assessment Directive:
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:
Guidance and an SEA tool-kit are available from the Scottish Government website.
|Public Participation Directive:
The Public Participation Directive (PPD) (PDF document – 2003/35/EC) requires a number of aspects of public notification and consultation:
The Offshore Petroleum Production and Pipe-lines (Assessment of Environmental Effects) Regulations 1999 have also been amended in line with PPD:
|Not directly applicable.
|Not directly applicable.
|Project Proceeds in Breach of Requirements:
|If the project or modification begins without an Application for Consent (PON 16) and either a Direction or an ES being approved, or it is carried out in breach of conditions set out in the consent, then a court order can be sought requiring the cessation of the project. If the operating company is found to be at fault, it may be prosecuted and required to remove any equipment installed and return the location to its former state.
|The DECC Environmental Inspectorate Enforcement Policy sets out the general principles that Inspectors shall follow in relation to enforcement, including prosecution.
|Deliberate Disturbance of Marine European Protected Species:
|If it has not be satisfactorily demonstrated to the Regulator that significant disturbance will not occur or where a Wildlife Licence is not held, an offence will have been seen to have been committed under the Habitats Regulations (as amended) or the Offshore Marine Conservation Regulations (as amended).
|An EIA Direction SAT and ES will remain valid for two years. If an operation does not go ahead within this time then a new application/renewal of ES will be required.Any project variation that may alter the findings of the EIA undertaken must be notified to DECC. They may request additional environmental information to be supplied. For significant variations, they may request an additional EIA be undertaken and ES submitted as this may qualify as a project modification.
|The Department for Energy Security and Net Zero ES Review:
|The Department for Energy Security and Net Zero undertook a review of the quality of ESs submitted under the Offshore Petroleum Production and Pipelines (Assessment of Environmental Effects) Regulations 1999. The findings of this review can be found here (Word document).
|The Department for Energy Security and Net Zero (then DECC) Response to CTL Consultation:
|The Department for Energy Security and Net Zero Response to the Consultation Guidance Relating to the Consent to Locate Process Under Part 4A Of The Energy Act 2008 The document produced is the Department for Energy Security and Net Zero’s response to the consultation carried out in 2012, seeking views on changes to the new consenting process following the transfer of provisions from the Coast Protection Act.A guidance document can be downloaded from the UK Government’s website (PDF document).
|Consultation on Environmental Impact Assessment amending Scottish Environmental Impact Assessment Regulations to Transpose Directive 2014/52/EU
|Scottish Ministers are inviting comments on a Consultation (available here), setting out proposals for implementing Directive 2014/52/EU (amending) Directive 2011/92/EU on the assessment of the effects of certain public and private projects in the environment.Any responses must be submitted by 31st October 2016.
|Consultation Outcome – Transposition of Environmental Impact Assessment Directive: Regulations on Offshore Hydrocarbon Related Developments and on Pipelines
|This Consultation was on proposals for implementing amendments to the EU Directive on environmental impact assessments. Draft regulations were presented which would amend these existing Regulations insofar as they apply to the consenting regimes for offshore hydrocarbon related developments including pipelines.
|DECC Guidance for Development of Transboundary Oil and Gas Fields with Norway (PDF document):
|These Department for Energy Security and Net Zero (then DECC) Guidance Notes give advice to licensees on the development of oil and gas field reservoirs that extend across the median line between the United Kingdom and Norway. They have been developed jointly with the Norwegian Petroleum Directorate and include links to both UK and Norwegian legislation and Guidance. They should not be read in isolation from that legislation. The Guidance Notes are designed to help companies through the process of seeking Government approval for the development of transboundary reservoirs.
|Deep Water Horizon:
|ESs must include a detailed assessment of potential oil spill releases, based on the revised OPEP requirements but including more detail in relation to the measures to prevent and control the release, the results of the modelling and the potential environmental impacts.
|Don’t forget the EIA legislation does not take away the need to ensure licence conditions are met. If it is felt the conditions are no longer required, then the Department for Energy Security and Net Zero is willing to consider rescinding or varying licence conditions as appropriate.
|Offshore Energy Strategic Environmental Assessment (SEA): An Overview
|The Department for Energy Security and Net Zero has published guidance which provides an explanation of the SEA process.
|PON 10 – Pro Forma for Reporting non-compliance with consent conditions, under Part 4a of the Energy Act 2008, includes the failure of aids to navigation:
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:
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
|Portal Environmental Tracking System (PETS) – Draft Industry Guidance:
|DECC has produced draft Industry User Guidance (PDF document) on the new permit tracking process through PETS. This document will be updated regularly by DECC. Queries regarding PETS should be addressed to:Derek Saward
Tel: 01224 254037
|The 29th Licencing Scheme
|The 29th Licencing Scheme has been announced by the North Sea Transition Authority (NSTA). A new, more flexible approach has been adopted in the form of the Innovate Licence.More details available here.
|The OSPAR Data and Information Management System (ODIMS)
|The OSPAR Data and Information Management System (ODIMS), is now live. ODIMS is OSPAR’s one-stop online geoportal providing access to OSPAR data and associated metadata. It is available here.
|Town and Country Planning (Historic Environment Scotland) Amendment Regulations SSI 2015/237 :
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 1st 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:
Town and Country Planning (Development Management Procedure) (Scotland) Regulations SSI 2013/155.
|UK Offshore Energy Strategic Environmental Assessment 3 (OESEA3)
|The UK OESEA3 was published by the Department for Energy Security and Net Zero (then DECC) 2016 as is available here.