Cet Law responds to consultation on Marine Net Gain in England

On September 12th, 2022, Cet Law submitted a response to the Department for Environment Food & Rural Affairs (DEFRA) of England for the Consultation on the Principles of Marine net gain (the “Consultation”). This blog presents the concept of net gain, its importance for the marine environment and Cet Law’s position in the Consultation’s framework.

What is “net gain”?

According to DEFRA, “Net gain” refers to “an approach to development that aims to leave the natural environment in a measurably better state than beforehand”. Net gain implies all activities and processes to offset residual development losses through protection, restoration, and creation of environmental features greater than project-associated losses.

Applying a 10% mandatory biodiversity net gain in land areas in England is now mandatory under the 2021 Environment Act for developments subject to the 1990 Town and Country Planning Act permissions (with a few exemptions). Likewise, it is mandatory for Nationally Significant Infrastructure Projects subject to the 2008 Planning Act.  DEFRA is now looking to apply the net gain concept to the marine environment and initiated a consultation process to gather input from stakeholders.

What is “marine net gain”, and why is it important?

Marine net gain refers to applying the net gain approach and its principles to marine developments. It is essential because UK policy has focused on terrestrial biodiversity net gain creating a gap for the marine environment. Because of the marine environment’s dynamic nature which creates development impacts which may extend beyond a project’s boundaries, the same approach for implementing terrestrial net gain would not necessarily apply or be appropriate to the marine environment.

An example is that the legislation applicable to Net gain (including the 2021 Environment Act and 2008 Planning Act) is restricted to developments within the intertidal area, but not from the low water mark to 12nm offshore or up to 200nm offshore.

The Consultation proposed an assessment framework to value the development impacts and intervention benefits (marine net gain). The assessment framework should define relevant environmental features along with their generic values and follow the process below (Consultation, Page 6):

  • Step 1: Using the assessment framework, measure the project’s impacts to understand the residual losses
  • Step 2: Using the assessment framework, measure the benefits of the proposed interventions
  • Step 3: Demonstrate that the value of the interventions achieves the mandated level of gain over and above the residual losses

What is Cet Law’s position on the Consultation?

The extension of a net gain approach to the marine environment is an initiative that Cet Law supports and celebrates.  Still, an initiative like marine net gain will only be effective and meaningful if created and implemented, putting the marine environment, habitats, and species at its heart.

Cet Law believes the Consultation is an opportunity for improving the conservation and sustainable use of coastal and offshore biodiversity and the marine environment. Marine net gain directly impacts all species of cetaceans that inhabit or transit UK waters and rely on the marine environment.

A summary of Cet Law’s response is as follows:

  1. Marine net gain definition: Cet Law agreed on the Consultation proposal of including impacts on habitats and species within marine net gain assessments.  Cet Law highlighted the difficulties around using habitat as a proxy for biodiversity in the marine environment. Many marine species, including cetaceans, are highly mobile. They use particular sites, at specific times, as migratory routes, breeding or feeding sites, implying that offshore developments could have a greater impact on a species than what would be quantifiable within a development’s boundaries.
  2. Inclusion of a broader “environmental net gain” approach: Cet Law agreed on the Consultation proposal to incorporate a broader environmental net gain when environmental protection underpins extra benefits. Cet Law believes in enhancing biodiversity within the marine environment to preserve ecosystem services that, like carbon capture, are essential to address global challenges like climate change.
  3. Scope of Marine net gain: Cet Law agreed with the Consultation proposal to make marine net gain a mandatory requirement for new development activities within the marine environment and that it should be integrated into consenting and licensing regulatory regimes.
  4. Marine net gain interventions: Cet Law proposed pressure reduction measures as part of the potential Marine net gain interventions that the Consultation reviewed (including ecosystems and species restoration and protection). Industries can deliver pressure reduction measures through marine net gain by, amongst others, removing marine litter (including discarded fishing gear), supporting the designation of ‘no-go’ zones and implementing maritime anthropogenic noise reduction measures.
  5. A strategic approach to Marine net gain: Cet Law agreed with the Consultation on the need to undertake a site-level and strategic approach to a marine net gain. However, Cet Law highlighted that applying site-level interventions is difficult for many mobile species, and a site-based approach should only be undertaken to enhance particular features that benefit the marine environment.
    Cet Law highlighted the following points that require further consideration after the Consultation:

    • There is a need for a greater understanding of what ‘site’ means because, unlike in the onshore context, the ‘on-site’ concept is more complex in the marine environment. What constitutes the ‘site’ will impact what net gain can be delivered on the site.
    • The potential risk for areas to become a ‘sacrifice zone’ (where development impacts a site, but net gain measures are off-site) must be regarded. Accordingly, it is Cet Law’s position that there is a preference presumption to keep the marine net gain benefit tied to the development’s locality where feasible.
    • The strategic approach should be considered individually under a broader consideration of the marine ecosystem.
  6. Marine net gain and additionality in Marine Protected Areas (MPAs): The Consultation proposed applying the additionality principle to allow improvements of designated and non-designated MPA features to qualify as marine net gain interventions. The Consultation defines “additionality” as “a real increase in social value that would not have occurred in the absence of the intervention being appraised”.

Cet Law believes that improvements to designated features of MPAs would not qualify as marine net gain interventions under the additionality principle. The relevant competent authorities are legally obligated to secure conservation measures to maintain or restore features under the MPAs’ objectives.

Cet Law proposed that any enhancement of statutory MPAs’ designated features should impose additional burdens on the developer. For example, if there is a 10% marine net gain requirement, a developer wishing to enhance an MPA feature should be subject to a higher threshold (e.g., 20% marine net gain).

The full text of the Consultation can be found here and Cet Law’s response can be found here.