The Offshore Oil and Gas Exploration, Production, Unloading and Storage (Environmental Impact Assessment) Regulations 2020

Made: 8th December 2020

Laid before Parliament: 10th December 2020

Coming into force in accordance with regulation 1

The Secretary of State has been designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to the environment and matters relating to the conditions for granting and using authorisations for the prospection, exploration and production of hydrocarbons .

The Secretary of State makes these Regulations in exercise of the powers conferred by section 2(2) of that Act and by section 56(1) and (2) of the Finance Act 1973 , with the consent of the Treasury .

The Secretary of State has taken into account the selection criteria set out in Annex III to Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment .

Citation, commencement and application

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• (1) These Regulations may be cited as the Offshore Oil and Gas Exploration, Production, Unloading and Storage (Environmental Impact Assessment) Regulations 2020 and come into force immediately before 11 p.m. on 31st December 2020.

• (2) Paragraphs (3), (4) and (5) are subject to paragraph (6).

• (3) Subject to paragraphs (4) and (5), these Regulations apply to projects where they take place wholly or partly within—

• (a) tidal waters and parts of the sea adjacent to the United Kingdom from the low water mark up to the seaward limits of territorial waters;

• (b) waters in any area for the time being designated under section 1(7) of the Continental Shelf Act 1964 (designation of areas of continental shelf);

• (c) the seabed and subsoil under the waters referred to in paragraphs (a) and (b).

• (4) Where a project is within section 2(3) of the Energy Act 2008 (activities related to unloading or storage of combustible gas) these Regulations apply where the project takes place wholly or partly within a “controlled place”, as defined in section 2(4) of that Act.

• (5) Where a project is within section 17(2) of the Energy Act 2008 (activities related to the geological storage of carbon dioxide) these Regulations apply where the project takes place wholly or partly within an “offshore controlled place”, as defined in section 35(1) of that Act, where the licensing authority is the OGA as determined in accordance with section 18 of that Act.

• (6) These Regulations do not apply to the following projects—

• (a) those to which the Marine Works (Environmental Impact Assessment) Regulations 2007 apply, where the appropriate authority under those Regulations is a devolved authority or the Natural Resources Body for Wales;

• (b) those to which the Marine Works (Environmental Impact Assessment) (Scotland) Regulations 2017 apply.

The 1999 Regulations and related legislation

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• (1) In this regulation “the 1999 Regulations” means the Offshore Petroleum Production and Pipe-lines (Assessment of Environmental Effects) Regulations 1999 .

• (2) The 1999 Regulations continue to apply only for the purposes specified in regulation 29 (transitional and savings provisions).

• (3) The following legislation amending the 1999 Regulations is revoked—

• (a) the Offshore Petroleum Production and Pipe-lines (Assessment of Environmental Effects) (Amendment) Regulations 2007 ;

• (b) the Offshore Petroleum Production and Pipe-lines (Assessment of Environmental Effects) (Coronavirus) (Amendment) Regulations 2020 .

• (4) The following provisions amending the 1999 Regulations are omitted—

• (a) regulation 8 of the Pollution Prevention and Control (Fees) (Miscellaneous Amendments and Other Provisions) Regulations 2015 ;

• (b) regulation 3 of the Pollution Prevention and Control (Fees) (Miscellaneous Amendments) Regulations 2016 ;

• (c) regulation 7 of the Energy (Transfer of Functions, Consequential Amendments and Revocation) Regulations 2016 ;

• (d) Part 1 of the Offshore Petroleum Production and Pipe-lines (Environmental Impact Assessment and other Miscellaneous Provisions) (Amendment) Regulations 2017 ;

• (e) regulation 10 of the Oil and Gas Authority (Levy) and Pollution Prevention and Control (Fees) (Miscellaneous Amendments) Regulations 2019 ;

• (f) regulation 11 of the Oil and Gas Authority (Levy and Fees) and Pollution Prevention and Control (Fees) (Miscellaneous Amendments) Regulations 2020 .

Interpretation

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• (1) In these Regulations—

• “the 1999 Regulations” has the meaning given in regulation 2(1);

• “the EIA Directive” means Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment;

• “combustible gas” means gas within the meaning of section 2(4) of the Energy Act 2008;

• “developer” means any person who carries out, or proposes to carry out, a project;

• “environmental impact assessment” means the process consisting of—the preparation and submission of an environmental statement by a developer in accordance with regulation 8;the carrying out of consultations in compliance with regulation 11 and, where relevant, regulations 12 and 13;the Secretary of State's consideration of the information presented in the environmental statement, any further information provided by the developer that falls under regulation 12(3) and any representations received as the result of the consultations referred to in sub-paragraph (b);the Secretary of State's conclusion as required by regulation 14(2);the integration of that conclusion into the Secretary of State's decision as to whether to agree to the grant of consent;

• “environmental statement” means a report prepared by the developer as part of the environmental impact assessment in respect of a project, in accordance with regulation 8 (environmental statement requirements);

• “geological storage of carbon dioxide” means an activity within section 17(2)(a) of the Energy Act 2008;

• “installation” means a surface installation or subsea installation;

• “natural gas” means gas existing in its natural condition in strata;

• “the OGA” means the Oil and Gas Authority;

• “oil” includes any mineral oil or relative hydrocarbon existing in its natural condition in strata, but does not include coal or bituminous shales or other stratified deposits from which oil can be extracted by destructive distillation;

• “overseas project” has the meaning give in regulation 19(5)(b);

• “project” means, except in the term “overseas project”, the execution of construction works or other installations or schemes, and other interventions in the natural surroundings and landscape, where those activities fall under, or relate to the implementation of, a matter set out in Schedules 1, 2 or 3;

• “public website” means a website accessible to the public where the public can view and download information placed upon it;

• “scoping opinion” has the meaning given in regulation 9(1);

• “screening direction” has the meaning give in regulation 5(2)(a);

• “surface installation” includes fixed, floating and mobile installations.

• (2) References in these Regulations to a project being in a particular area include a project proposed to be carried out in that area, a project which is in the course of being carried out in that area and a project which has been carried out in that area.

Requirement for Consent

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• (1) A developer must not commence a project without the Secretary of State's agreement to the OGA's grant of consent and the consent of the OGA.

• (2) The OGA must not grant consent regarding a project without the agreement of the Secretary of State.

• (3) The Secretary of State must not agree to the grant of consent for a project unless—

• (a) an environmental impact assessment has been carried out; or

• (b) an environmental impact assessment is not required, pursuant to regulations 5, 6 or 7.

• (4) When the Secretary of State notifies the developer of the Secretary of State's agreement to the grant of consent, the Secretary of State may attach conditions to the agreement that the developer must comply with, including environmental conditions to avoid, prevent, reduce or offset any significant adverse effects on the environment, and measures to monitor such conditions (“a monitoring condition”).

• (5) When deciding whether to impose a monitoring condition pursuant to paragraph (4), the Secretary of State must—

• (a) consider whether there are appropriate existing monitoring arrangements under legislation aside from these Regulations that make the imposition of a monitoring condition unnecessary;

• (b) take steps to ensure that the parameters to be monitored and the duration of the monitoring are proportionate to the nature, location and size of the project and the significance of its effects on the environment.

Requirement for an Environmental Impact Assessment

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• (1) Projects that fall under Schedule 1 require an environmental impact assessment, and regulations 8 to 16 apply.

• (2) For projects that fall under Schedule 2—

• (a) the developer must apply to the Secretary of State for a direction as to whether an environmental impact assessment is required (“a screening direction”) and the Secretary of State must serve a screening direction in accordance with regulation 6; or

• (b) the developer may choose that the project undergoes an environmental impact assessment, and regulations 8 to 16 apply.

• (3) Projects that fall under Schedule 3 do not require an environmental impact assessment where the Secretary of State considers that the project is not likely to have a significant effect on the environment pursuant to regulation 7.

• (4) Projects do not require an environmental impact assessment where the Secretary of State directs this under regulations 17 and 18 (exempt projects).

• (5) Where a project requires both an environmental impact assessment under these Regulations and an assessment under either regulation 5 of the Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001 or regulation 28 of the Conservation of Offshore Marine Habitats and Species Regulations 2017 , the Secretary of State must ensure that the preparation of those assessments is coordinated where appropriate.

Requirement for a screening direction

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• (1) Where a project requires a screening direction under regulation 5(2), the developer's application for a screening direction —

• (a) must include the information specified in Schedule 4;

• (b) may include information on any features of the project or measures envisaged to avoid, prevent, reduce or offset likely significant adverse effects on the environment.

• (2) The developer must also provide any further information required by the Secretary of State regarding the application.

• (3) The Secretary of State may decide that an environmental impact assessment is not required where the Secretary of State considers that the project is not likely to have a significant effect on the environment, taking into account—

• (a) the information provided by the developer;

• (b) the matters listed in Schedule 5 (matters to be taken into account in deciding whether a project is likely to have a significant effect on the environment);

• (c) the results of any preliminary verifications or assessments of the effects on the environment of the project carried out pursuant to assimilated law other than any law that implemented the EIA Directive;

• (d) any conditions that the Secretary of State may attach to the agreement to the grant of consent pursuant to regulation 4(4).

• (4) The screening direction must state—

• (a) the main reasons for the decision, with reference to the matters listed in Schedule 5 (matters to be taken into account in deciding whether a project is likely to have a significant effect on the environment); and

• (b) where the Secretary of State has decided that an environmental impact assessment is not required—

• (i) that the Secretary of State agrees to the grant of consent for the project;

• (ii) any conditions that the Secretary of States attaches to the agreement to the grant of consent pursuant to regulation 4(4);

• (iii) any features of the project or measures envisaged that the developer has proposed to avoid or prevent what might otherwise have been significant adverse effects on the environment.

• (5) The Secretary of State must serve the screening direction on the developer as soon as possible and in any event within 90 days of receiving the application containing the information required under paragraph (1), except where paragraph (6) applies.

• (6) The Secretary of State may extend the time limit in paragraph (5) where the Secretary of State considers that an application for a screening direction is for a project that is an exceptional case, for example in relation to its nature, complexity, location or size.

• (7) Where paragraph (6) applies, the Secretary of State must notify the developer as to when the screening direction is expected to be served and the reasons why the Secretary of State considers that extra time is needed.

• (8) The Secretary of State must promptly make the screening direction available on a public website.

Decision that no environmental impact assessment is required, without a screening direction

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• (1) For a project that falls under Schedule 3, an application for a screening direction is not required, but the developer must provide any information that the Secretary of State requires in relation to the project.

• (2) The Secretary of State may decide that an environmental impact assessment is not required where the Secretary of State considers that the project is not likely to have a significant effect on the environment, taking into account—

• (a) any information provided by the developer;

• (b) the matters listed in Schedule 5 (matters to be taken into account in deciding whether a project is likely to have a significant effect on the environment);

• (c) any conditions that the Secretary of State may attach to the agreement to the grant of consent pursuant to regulation 4(4).

• (3) The decision must be served promptly on the developer and must state, where it is decided that an environmental impact assessment is not required—

• (a) that the Secretary of State agrees to the grant of consent for the project;

• (b) any conditions that the Secretary of State attaches to the agreement to the grant of consent pursuant to regulation 4(4).

Environmental Statement Requirements

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• (1) Where a project is subject to an environmental impact assessment, the developer must submit an environmental statement containing the information listed in Schedule 6, as relevant.

• (2) In preparing the environmental statement, the developer must take into account the available results of other relevant assessments under the law of any part of the United Kingdom.

• (3) The developer must ensure that—

• (a) the environmental statement is prepared by competent experts;

• (b) the environmental statement is accompanied by a statement from the developer outlining the relevant expertise or qualifications of such experts.

Scoping opinion for an environmental statement

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• (1) Where a project is subject to an environmental impact assessment, the developer may apply to the Secretary of State for an opinion on the scope and level of detail to be included in the environmental statement (the “scoping opinion”).

• (2) The application must contain—

• (a) the name and address of the developer;

• (b) a brief description of the physical characteristics of the project;

• (c) the location of the project with particular regard to the environmental sensitivity of the geographical areas likely to be affected by the project;

• (d) any likely significant effects on the environment.

• (3) Following receipt of an application, the Secretary of State must notify any authority which the Secretary of State considers would be likely to be interested in the project by reason of either its particular environmental responsibilities or its local or regional competence.

• (4) The notice must—

• (a) provide a copy of the application submitted by the developer;

• (b) request views on the scope and level of detail to be included in the environmental statement;

• (c) specify a reasonable period in which representations may be made to the Secretary of State.

• (5) The scoping opinion must take into account the information provided by the developer and any views expressed by the authorities regarding the proposed scoping opinion.

• (6) The Secretary of State must provide the scoping opinion to the developer.

• (7) Where the Secretary of State has provided a scoping opinion to the developer the environmental statement must be based on the scoping opinion.

Obtaining information for preparing the environmental statement

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• (1) A developer may apply to the Secretary of State to request information regarding a project that is subject to an environmental impact assessment where that information—

• (a) would assist the developer in the preparation of the environmental statement; and

• (b) is not otherwise reasonably accessible to the developer.

• (2) The application must contain—

• (a) the name and address of the developer;

• (b) a brief description of the physical characteristics of the project;

• (c) the location of the project with particular regard to the environmental sensitivity of the geographical areas likely to be affected by the project;

• (d) a description of the information sought for the preparation of the environmental statement.

• (3) Where an application is submitted in accordance with paragraph (2), the Secretary of State must—

• (a) where the Secretary of State has the information requested, provide that information;