As a result of environmental regulation, consenting authorities must consider the environmental impacts of marine renewable energy projects before granting consent.
For novel technologies where environmental impacts are not yet fully understood this can prove challenging, particularly for small scale projects seeking to demonstrate new technology where the extent of costly environmental surveys in the marine environment required may be disproportionate to the cost and scale of a project.
One approach to overcoming such barriers is adaptive management which aims to improve decision making over time by reducing scientific uncertainties.
The overarching principle is to learn by doing and where necessary, adapt.
Post-consent monitoring may seek to validate environmental assessments, reduce scientific uncertainties and/or inform future phases or projects and the outcome may require adjustment of the project.
The Scottish Government’s survey, deploy, monitor policy could be considered a form of adaptive management.
It is a risk-based approach designed to enable novel technologies to be deployed in a manner which is proportionate to the level of risk associated with the project and which will reduce scientific uncertainty.
For high risk projects it is likely that two years of pre-consent survey data will be required together with testing and monitoring of a test device or demonstration array elsewhere.
For low risk projects it may be that one year of pre-consent survey data is sufficient.
The level of risk is determined by the environmental sensitivity of the project location, the risks associated with the technology type and the scale of the development.
For larger scale projects, consent may be conditional upon a phased deployment with subsequent phases subject to approval.
Monitoring is likely to be a condition of consent and may inform future phases or projects.
Receiving consent for any energy project is a great milestone to have achieved. However the consenting journey doesn’t end there.
Conditions will require to be discharged which can be administratively burdensome where numerous pre-construction plans are to be produced and agreed.
Projects consented subject to adaptive management may also require an adaptive management plan to be agreed as well as the nature and scope of any post-consent monitoring. Obtaining agreement of plans and the scope of monitoring can take time and will need to be factored into the post-consent programme.
For larger projects, the consent granted may only permit a small phase of the project to be deployed initially with subsequent phases dependent on the outcome of post-consent monitoring. It is therefore vital to ensure monitoring outputs are sufficient to inform future phases.
Finally, in the current CfD climate a level of flexibility within marine consents would be helpful to ensure consents are future-proofed.
This is particularly the case for phased projects where it may be necessary for phases to be ring-fenced or transferred to another entity in the future.
In this regard there may be lessons to be learned from the offshore wind industry and its phased consents with flexible transfer provisions.
Stephanie Mill is a solicitor with Shepherd and Wedderburn LLP