Representation by Royal Society for the Protection of Birds (Royal Society for the Protection of Birds)
- Date submitted
- 13 June 2024
- Submitted by
- Non-statutory organisations
INTRODUCTION The RSPB supports the deployment of renewable energy projects, providing that they are sited in appropriate places and designed to avoid potential adverse impacts on wildlife. We are grateful for the constructive pre-application discussions that have taken place with Outer Dowsing in respect of this proposal, particularly through the Evidence Plan process. This relevant representation outlines the RSPB’s position on the following aspects of the Outer Dowsing application: - Onshore ornithology – export cable corridor - Offshore ornithology impacts - Derogation case with particular reference to compensation measures Due to resource constraints, the RSPB has had limited time to review the Applicant’s documents in relation to offshore ornithology impacts. Our submission on these matters therefore represents an initial assessment of the Applicant’s submitted information and will be added to in the RSPB’s main written representation. The RSPB reserves the right to add to and/or amend its position in light of changes to or any new information submitted by the Applicant. ONSHORE ORNITHOLOGY – EXPORT CABLE CORRIDOR The RSPB has been in discussion with the Applicant with respect to the potential impacts of the construction and operation of the export cable route on wildlife. This is because it passes close to a number of national and international protected areas, as well as the RSPB’s Frampton Marsh and Freiston Shore reserves and land within the Defra-funded Lincolnshire Wash Landscape Recovery Project (formerly known as the Greater Frampton Vision Landscape Recovery Project). The RSPB raised its concerns in its responses to two consultations carried out by the Applicant in 2023: in summer 2023 on its Preliminary Environmental Information Report (PEIR) and in autumn 2023 on subsequent changes and refinements to the project. Below we set out our current position on the concerns set out in those responses. Impacts on The Wash Special Protection Area/Ramsar site and the Greater Wash SPA, including functionally-linked land In our response to the Autumn 2023 consultation, the RSPB noted that, once two years of survey data were made available, it would review the potential implications of disturbance on the breeding, wintering and passage birds of these protected areas. This would consider areas of potential sensitivity and any mitigation that may be necessary. We have now reviewed the information provided with the application. This includes details of the second year of survey results, with the exception of March and April 2024 (see section 22.1 in APP-208). Based on our evaluation of this nearly complete data, we have concluded that any disturbance to wintering and passage birds on the cable route will be localised and short-term in nature. Subject to our comment below, we have no further concerns in relation to this aspect of the project. We request the Applicant provides the additional data for March and April 2024 so that we can review this conclusion in the light of two years’ complete data. Impacts on the RSPB’s Frampton Marsh and Freiston Shore reserves The RSPB’s Frampton Marsh and Freiston Shore reserves are important freshwater and intertidal reserves, supporting many of the wetland birds protected by The Wash SPA/Ramsar site. Following submission of the RSPB’s submissions to the PEIR and Autumn 2023 consultations, the RSPB had further discussions with the Applicant. During these, we raised a concern in relation to the potential for the construction of the cable route to affect the mains water supply to the RSPB Frampton Marsh reserve, as the route of the cable, and the works access route, crosses the pipe carrying the water supply. Among other things, this provides water critical to the wetland management carried out on the reserve. The RSPB has shared information on the location of the pipe with the Applicant and will continue discussions with them in order to ensure that, should the DCO receive consent, the construction of the cable corridor has no impact on the operation of the mains water supply to the reserve. Impact on the Lincolnshire Wash Landscape Recovery Project The Lincolnshire Wash Landscape Recovery Project is part of the pilot of Defra’s England-wide Landscape Recovery Programme. The aim of the programme is to offer farmers and land managers the opportunity to co-design a bespoke agreement to produce environmental and climate goods across landscape scale projects, in order to deliver a range of outcomes, with a focus on net zero, biodiversity and water quality. Defra provides initial funding for a 2-year Development phase intended to culminate in negotiation of an agreement involving public funding for 20+ year implementation. The aim of the Lincolnshire Wash project is to use land to the south-east of Boston to expand the habitats that have developed so successfully at the RSPB’s Frampton Marsh and Freiston Shore reserves to create a mosaic of wetland habitats over 3000 hectares. The project is part way through its 2-year Development phase and is due to conclude at the end of 2024, with the aim of securing the long-term funding described above. The RSPB has informed the Applicant that the cable route would pass through the project area, on land owned by project partners. Therefore, should the DCO receive consent and Defra provide long-term funding for the Lincolnshire Wash Landscape Recovery project, we suggest it would be necessary to consider any potential affects of cable route construction on the recovery project at that time. In accordance with verbal assurances, we recommend and would welcome a commitment from the Applicant that this be dealt with as part of the development of any detailed construction and implementation plan for the cable route. OFFSHORE ORNITHOLOGY IMPACTS - SUMMARY OF RSPB POSITION We have significant concerns regarding the findings of some of the impact assessments. As a result of the methodological concerns, set out below, the RSPB considers that the impacts have not been adequately assessed and, as such consider that an adverse effect on the integrity (AEOI) on the following qualifying features of the Flamborough and Filey Coast Special Protection Area (SPA) cannot be ruled out: Project alone – RSPB AEOI conclusions We cannot rule out an adverse effect on site integrity on the following features of the Flamborough and Filey Coast SPA: - The impact of collision mortality on the kittiwake population - The impact of displacement mortality on the guillemot population - The impact of displacement mortality on the razorbill population - The impact of combined collision and displacement mortality on the seabird assemblage. Project in combination with other plans and projects – RSPB AEOI conclusions We cannot rule out in-combination impacts on the following features of the Flamborough and Filey Coast SPA: - The impact of collision mortality on the kittiwake population (and therefore agree with the Applicant’s conclusion in this respect) - The impact of combined collision and displacement mortality on the gannet population - The impact of displacement mortality on the guillemot population - The impact of displacement mortality on the razorbill population - The impact of combined collision and displacement mortality on the seabird assemblage. We are unable to reach a conclusion on an adverse effect on site integrity on the following features of the North Norfolk Coast SPA and Greater Wash SPA: - The impact of collision mortality on the sandwich tern population. The RSPB cannot rule out an adverse effect on the integrity of the Greater Wash SPA, arising through the project alone and in combination. This is due to the impact of displacement (from vessel movement during construction and decommissioning and operations and maintenance) on the SPA’s red-throated diver population. The Applicant has not fully considered the Conservation Objectives relevant to that population. The numbers of red throated divers, their distribution within the SPA and their ability to use all suitable habitat contained in the SPA are relevant to the SPA conservation objectives but are not considered by the Applicant. If red-throated divers are displaced from part of the SPA which would otherwise be suitable for them the effect is to reduce the functional size of the SPA, undermining the conservation objectives. IMPACT ASSESSMENT – METHODOLOGICAL CONCERNS The RSPB’s key concerns with the impact assessment relate to: - the application of a macro avoidance correction to gannet collision risk modelling, - the approach to apportioning of kittiwakes to the Flamborough and Filey Coast SPA - Digital Aerial Survey - A lack of consideration of the in-combination impact of collision mortality on the North Norfolk Coast SPA and Greater Wash SPA Sandwich tern populations - a lack of consideration of impacts compounded by Highly Pathogenic Avian Influenza. The application of a macro-avoidance correction to gannet collision risk modelling Further to advice from Natural England, the Applicant has applied a reduction of 70% to the baseline densities inputted into the gannet collision risk modelling in order to account for macro-avoidance, in Appendix 12.2 of their Environmental Statement (APP-163) This approach follows suggestions in Cook (2021). The current evidence of a strong macro avoidance of wind farms by gannets, established from observed behaviour, is almost entirely derived from non-breeding birds (Cook 2021). The evidence for macro avoidance during the breeding season is limited with the exception of a study of gannets breeding on Helgoland in the German North Sea. However, it is unclear from this study what the breeding status of the tracked birds was, or how their behaviour differed from what would have been expected pre-construction as two of the three wind farms were already operational during the first year of tracking. What the study does clearly show is that breeding gannets do fly through offshore wind farms, often showing no avoidance behaviour at all. While some tracks show clear avoidance others do not and may even show attraction to the wind farm. In the Cook (2021) report that suggests the application of macro avoidance to baseline densities, the suggestion is based on reviews that do not include this German tracking study, although it does acknowledge that it shows clear differences between individuals in relation to their response to wind farms. The previous gannet recommended avoidance rate was based on ‘all gulls’ data because no gannet data were available. The evidence of macro avoidance of gulls in response to wind farms is equivocal, so this rate was only calculated from ‘within wind farm’ avoidance. As gannets can show macro avoidance it therefore was suggested that this was applied to the baseline densities, and then collision risk modelling was carried out using the ‘all gull’ avoidance rate, so effectively applying avoidance twice. In response to this suggestion Natural England commissioned a further review of gannet avoidance rates, including whether macro avoidance should be incorporated in this way but this has not yet been reported. In the absence of having this report, the recommendations from it should not be acted upon, and the suggestions in Cook (2021) should not be taken up without the context of this review. Notwithstanding the above, the RSPB does not agree with the approach for two reasons. Firstly, it does not take into account the likely seasonal variation in macro avoidance as described above. Secondly, by basing the ‘within wind farm’ avoidance rate on the ‘all gull’ rate, it assumes that gannets will have the same ‘within wind farm’ reactive flight response as gulls. This assumption is very unlikely to be met, as gannets have much lower flight manoeuvrability than gulls. This will result in a lesser ability to make rapid reactions and consequently have a greater risk of collision. This should be reflected in the ‘within wind farm’ avoidance rate if any further changes are to be made. Any evidence of macro avoidance should also be seen in the context of recent work in Belgian offshore windfarms that has shown potential habituation to the presence of turbines. This effectively results in lower macro avoidance and so an elevated risk of collision. It is also important to acknowledge that corpses of Northern Gannets with injuries consistent with collisions with offshore wind farms have been recovered (Rothery et al., 2009), and the imperfect detection of these corpses indicate that there may be many more. Approach to the apportioning of kittiwakes to the Flamborough and Filey Coast SPA In the Apportioning exercise carried out for Kittiwake (Annex 1 of APP-235, the Report to Inform the Appropriate Assessment), the Applicant refers to surveys of offshore platforms that have been carried out by the Applicant. The results of these surveys are used to inform the apportioning results. However the report that these are drawn from is redacted due to confidentiality issues, meaning that the RSPB are unable review the methodology used and therefore are unable to rely on the values presented for apportioning to Special Protection Areas. Therefore the RSPB requests that the Applicant is asked to provide the following: - its detailed methodology on how it has undertaken the apportionment exercise in relation to birds breeding on offshore platforms; and - the confidential survey of breeding kittiwakes on offshore platforms upon which it has based its approach to apportionment. The RSPB have not had the resources to fully review the alternative methodology used for the apportioning of guillemot. Any concerns arising from review will be detailed in the full Written Representations. In-combination impact of collision mortality on the North Norfolk Coast SPA and Greater Wash SPA Sandwich tern populations Despite scoping in the potential in combination impacts arising from collision mortality on the North Norfolk Coast SPA Sandwich tern population, (APP-235, Table 10.38, RIAA), there is no subsequent analysis of this impact. This is particularly surprising in the light of the recent Secretary of State decision in relation to the Dudgeon and Sheringham Project Extensions (dated 17 April 2024) which concluded that an adverse effect on the integrity could not be ruled out beyond reasonable scientific doubt in relation to collision mortality of Sandwich terns of the North Norfolk Coast SPA and Greater Wash SPA. In order to inform any decision with regard to a conclusion on adverse effect, this assessment would need to be presented, alongside the results of Population Viability Analysis. Digital Aerial Survey The RSPB are content that digital aerial surveys can provide useful data in order to provide baseline characterisation of an offshore wind farm footprint. However full methodological detail needs to be provided alongside the outputs and the details the Applicant has provided are scant. In particular, but not exclusively there is: - insufficient consideration of potential biases in the survey and analysis methods. For example these could be biases arising from both the camera system, such as imperfect detection of smaller species, or from the imperfect identification by the surveyor of the digital images. Any biases such should have been carefully described; - there is no consideration of potential response of birds to disturbance arising from the survey e.g. from aircraft shadow. This could be behavioural responses such as flight take off rate or diving rate, that would have implications for the accuracy of the assessment; - there is no detail provided as to how spatial autocorrelation has been evaluated and if necessary accounted for. Spatial autocorrelation in this instance is the correlation among values of a count variable strictly attributable to their relatively close locational positions, introducing a deviation from the assumption of independent observation. The assessment should explicitly demonstrate an analysis of the data showing whether spatial auto-correlation is present or not; - there is no rationale provided as to why a grid rather than transect survey design has been used. Both survey designs are commonly used in the assessment of the impacts of offshore wind farms, and both have strengths and weaknesses. Detail is required as to why a grid design was used for this assessment; - there is no detail given of any independent validation of identification and detection rates. While it is clear that this validation is carried out as part of the internal quality assurance procedures of the survey providers, no detail of any independent external quality assurance appears to have been carried out. Highly Pathogenic Avian Influenza (HPAI) The current H5N1 strain of Highly Pathogenic Avian Influenza (HPAI) has affected UK wild bird populations on an unprecedented scale since it was first recorded in the country in Great Skuas in summer 2021, with seabirds and waterfowl particularly affected. The extent of reported mortalities attributed to HPAI in the UK and across Europe in 2022 demonstrated that HPAI had become one of the biggest immediate conservation threats faced by multiple seabird species, including some for which the UK population is of global importance. Many species impacted by HPAI are of conservation concern in the UK, and the outbreak comes on top of widespread declines reported by the latest seabird census (Burnell et al, 2023). RSPB conducted a repeat census in 2023 to determine the scale of impact of the outbreak on seabird populations, which for multiple species showed a decrease of >10% in overall counts across all UK sites that were surveyed in 2023. A further outbreak of HPAI in 2023, which largely occurred after the counts were undertaken, means that impacts of HPAI on the breeding populations of affected species is likely to be worse than indicated in the report. There remains the potential for ongoing impacts as the disease progresses. It is currently unclear what the ultimate population scale impacts of the outbreak will be, but it is likely that they will be severe. This scale of impact means that seabird populations will be much less robust to any additional mortality arising from offshore wind farm developments. It also means that there may need to be a reassessment of whether SPA populations are in Favourable Conservation Status. With such uncertainty as to the future of these populations, there is the need for a high level of precaution to be included in examination of impacts arising from the proposed development. This caution must also be applied to claims on the potential success of proposed compensation measures. The RSPB does not consider that these concerns have been adequately considered in the Assessment. IN-COMBINATION: TREATMENT OF CONSENTED PROJECTS REQUIRED TO PROVIDE COMPENSATION At paragraph 1686 in APP-235, the Applicant states that it presents in-combination impacts for kittiwake that exclude the impacts of those projects which have been “compensated for” as it considers them no longer relevant to the in-combination assessment. It also presents compensated impacts as a separate scenario. The RSPB strongly disagrees with the approach of excluding “compensated for” projects from the in-combination assessment for the following reasons. Compensatory measures only enter the equation when it has been determined that there will be adverse effects on the integrity of the site (under regulation 63 of the Conservation of Habitats and Species Regulations 2017 (as amended)) or there is a lack of certainty as to the absence of adverse effects and the need for the competent authority to decide whether consent should be granted under regulation 64. It therefore follows that if compensation measures have been required for a project then that project has been identified as giving rise to potential adverse impacts on the integrity of a protected site. Therefore, potential adverse effects from that project are also relevant when considering whether a later project is: - likely to have a significant effect on a designated site, whether on its own or in combination with other plans and projects, and subsequently - whether the competent authority can be satisfied that there will not be adverse effects on the integrity of the European site whether taken alone or in combination with other projects. It is difficult to see on what basis the fact that compensation has been (or will be) provided for potential adverse effects of the first scheme should mean that the effects of that scheme should be removed from the equation when carrying out the assessments required by regulation 63 for a later scheme, although it may well be relevant when considering whether consent should be granted under regulation 64 for the second scheme and/or what compensation measures should be required at that stage. There are two points we would stress in that context: - Firstly, the admonition of Advocate General Sharpston in Sweetman (No 1) at AG47. To exclude the adverse effects of scheme 1 when considering whether a later scheme would be likely to have significant effects / would not have an adverse effect on the integrity of a protected site in combination with other projects would seem to risk perpetuating the “death by a thousand cuts” phenomenon discussed in that case. (For the avoidance of doubt, we would stress that the starting point would always need to be the scheme itself – and there would need to be some effect from the scheme which when combined with effects from the earlier scheme could give rise to likely significant effects / outcome); and - Secondly, the uncertainty as to the effectiveness of measures that are designed to compensate for (for example) loss of habitat rather than to mitigate the harm which might otherwise be caused: see C-164/17 Grace v Sweetman at 52-3. Such an approach would also seem inconsistent with the clear ruling of the CJEU in C-164/17 Grace v Sweetman that compensatory measures should not be taken into account at the Article 6(3) stage when carrying out an appropriate assessment for a particular project. It is difficult to see why the compensatory measures associated with an earlier scheme could, therefore, be taken into account (by effectively removing the adverse effects of scheme 1 from consideration) where the competent authority is deciding on a later scheme whether it was likely to have significant effects or would / would not have adverse effects on the integrity of the site in combination with other projects. DEROGATION CASE WITH PARTICULAR REFERENCE TO COMPENSATION MEASURES Based on the RSPB’s conclusions on adverse effect on integrity, the RSPB considers a derogation case is required if the Secretary of State for the Department for Energy Security and Net Zero (DESNZ) is to consider consenting a damaging project. The RSPB welcomes the information provided by the Applicant to enable its derogation case to be reviewed. As part of any derogation case, and based on our initial conclusions regarding adverse effects on integrity the RSPB considers compensation measures would be required for the following species: gannet; kittiwake; guillemot, razorbill and red-throated diver should the Secretary of State decide to consent the Application as it is currently proposed. We set out below how we will approach our assessment of the Applicant’s compensation proposals, the level of detail we expect to see and an outline of our concerns with each of the compensation measures as they are currently presented. We will set out fuller comments on these and other issues relating to the Applicant’s derogation submissions in our main written submission. RSPB APPROACH TO ASSESSING COMPENSATION PROPOSALS The RSPB has reviewed the available published EC (2018 – Managing Natura 2000 sites) and Defra (2023 – Habitats Regulations Assessments: protecting a European site) guidance where they relate to compensatory measures. Both are in broad alignment as to the principles to adopt when considering compensatory measures. We supplement this based on the RSPB’s practical experience of applying the principles when assessing compensatory measures. We will use the combination of the EC guidance and the RSPB’s experience in this field to assess the Applicant’s compensatory measures. Below, we summarise some of the key elements of that approach before setting out our initial comments on the Applicant’s compensation proposals. These are necessarily initial comments as it is the RSPB’s view that there is still substantive work to be done with regards to the compensation proposals, based on agreement of the nature and scale of predicted adverse effects on integrity. This is critical to inform discussions on: - what ecologically effective compensation for those impacts could comprise; - the options to be considered to provide such compensation; and - the detailed consideration of possible locations and designs to implement ecologically effective compensation with a reasonable guarantee of success. In summary, the criteria for designing compensatory measures include: - Targeted – appropriate to the impact(s) predicted; - Effective – based on best scientific knowledge. Measures where there is no reasonable guarantee of success should not be considered; - Technical feasibility –taking into account the specific requirements of the ecological features to be reinstated; - Extent – directly related to quantitative and qualitative aspects of the elements of integrity likely to be impaired and estimated effectiveness of the measure(s); - Location – located in areas where they will be most effective in maintaining the overall coherence of the National Site Network for the impacted species; - Timing - must provide continuity in the ecological processes essential to maintain the structure and functions that contribute to the National Site Network. Each compensation measure should be fully functional before any damage occurs; - Long-term implementation – legal and financial security required for long term implementation. Must be in place prior to consent being granted. The length of time the compensation measures should be secured for must be based on the combination of the lifetime of the development plus the time it will take the affected seabird population to recover from the impacts. Compensatory measures must be additional to existing obligations e.g. measures necessary to site management of an SPA or SAC to restore or maintain a designated feature to favourable status. We also consider that there must be an appropriate level of detail on the proposed compensation measures provided sufficiently in advance of the start of the examination to enable interested parties to assess it fully. This is critical to enable proper scrutiny of any compensation proposals by interested parties and the Examining Authority. This is summarised below. At this stage, despite the significant amount of work carried out by the Applicant and the volume of material presented, we do not consider the necessary detail has been provided to enable proper scrutiny of the compensation measures. LEVEL OF DETAIL REQUIRED The RSPB considers that detail about the location, design, implementation, monitoring and review of any proposed compensatory measures is needed to: inform the application and examination process and enable proper public scrutiny. This should provide the Secretary of State with the necessary confidence as to whether those measures can be secured and implemented with a reasonable guarantee of success, thereby protecting the coherence of the National Site Network. We note that these details should be settled before DCO consent is decided, and be available as part of the application documentation. This enables potential interested parties the opportunity to fully review and assess the adequacy of the compensation measures before deciding whether to formally register as an interested party and submit a relevant representation. The details include: - Nature/magnitude of compensation: sufficient detail to enable agreement on the scale of compensation required in relation to the predicted impacts, including the detailed compensation objectives, associated success criteria and timeline; - Location: legal securing of proposed compensation sites with ability to scrutinise design, evidence of relevant consents and relevant legal agreements to secure land; - Monitoring and review: detailed monitoring and review packages agreed in advance including terms of reference and ways of working for any “regulators group” to oversee implementation of measure; - Compliance and enforcement: details and evidence of how the proposed compensation measures will be reviewed by the relevant regulator and the legal mechanisms available to those regulators to review and enforce any approved compensation plans. This is especially important if the proposed measures lie outside the jurisdiction of the decision-making authority (as is the case with some of the measures suggested by the Applicant). We consider it is unsafe to assume an outline compensation measure can be translated in to a detailed and workable measure “on the ground” at a later date and all the necessary consents and agreements successfully secured. By providing these details it should ensure these issues are properly addressed before the Secretary of State is required to make a decision on whether to grant DCO consent and ensure, among other things, that it is possible to: - Identify the detailed location and mechanism(s) of the proposed compensation measure; - Identify the relevant consenting and/or licensing mechanisms required; - Identify any potential impacts of the proposed measure on the receptor site(s) and surrounding environment and carry out appropriate screening; - Identify any particular impact assessment requirements necessary which might arise from likely direct and indirect effects of the compensation measure on other receptors; - Be satisfied that the relevant legal consents are (or have a realistic prospect of being) secured before any decision on DCO consent. If consent has not been granted or is at high risk of such, the Examining Authority and Secretary of State would know in advance. The criteria, guidance and associated requirements set out above will guide how the RSPB assesses the Outer Dowsing compensation measure proposals submitted as part of the application. Below we set out our initial comments in respect of the Applicant’s compensation measures for (i) kittiwakes and (ii) guillemots and razorbills. We have not commented on every option explored or referred to by the Applicant at this stage and any lack of comment should not be taken as support or otherwise. In general, we consider significant information remains to be presented to the Examination to enable the Examining Authority and Interested Parties to assess the efficacy of Applicant’s compensation proposals. KITTIWAKE COMPENSATION The RSPB’s comments are based on an initial assessment of the Applicant’s documents, with particular reference to APP-250 (Kittiwake Compensation Plan), APP-256 (Offshore Artificial Nesting Structure Evidence Base and Roadmap), and APP-260 (Kittiwake Strategic Compensation Plan). This application is unusual in that it, along with the Dogger Bank South scheme, is the first to come forward with an explicit lease requirement to adhere to a strategic compensation plan for kittiwakes developed by The Crown Estate and associated steering group (APP-260). Based on our reading of the above documents, we understand the Applicant is considering the following possible compensation measures: - Offshore Artificial Nesting Structure (oANS): the primary measure under consideration in line with the KSCP. - Onshore Artificial Nesting Structure (ANS): an option to be kept under review should it be appropriate in the future. Artificial nesting structures (onshore or offshore) are yet to be proven as an effective compensation measure. The preponderance of onshore ANS compensation measures at various locations on the east coast of England has taken place against a lack of evidence of there being a sufficient pool of nest-limited kittiwake recruits. Therefore, of the options available at the current time the RSPB’s preference is for oANS. These initial comments are restricted to the oANS measure. Based on our initial review, it is our understanding that: - The Applicant has identified two potential locations for oANS (Figure 4.2, APP-250) and that consent for these would be secured through the DCO and deemed Marine Licence (para 82, APP-250). The two locations are shown on Figure 9.1 of the KSCP along with multiple other potential locations to deliver the oANS. Therefore there is no current certainty on the final location; - Final decisions on the location and number of oANS to deliver strategic compensation for kittiwakes will be set out in The Crown Estate’s Kittiwake Strategic Implementation and Monitoring Plan (KSIMP) which would be submitted to the Secretary of State for approval following DCO consent for this Application and/or that for Dogger Bank South. Therefore, the final decision on location, design, implementation and monitoring appear to fall outside this DCO consent process (APP-260, section 11.2). - Responsibility for the design, construction and implementation of any oANS is uncertain: it is not set out in either the KCP (APP-250) or the KSCP (APP-260, section 11.2.2). We return to this below in some initial questions that need to be addressed. - The Applicant holds open the possibility that the oANS may be delivered via a future Marine Recovery Fund (MRF) as and when that is implemented by the Government (see APP-256, section 6.4). In summary, there remains considerable uncertainty at this stage over the consultative and consenting pathway by which any oANS will be designed, implemented and monitored. The RSPB has noted the preference of both the Applicant and the KSCP Steering Group for two oANS, located some distance offshore and in relatively deep water (c.f. the nearshore ANS structures implemented for Hornsea Three offshore wind farm). On this basis, we have assumed these will need to be bespoke offshore structures requiring similar engineering solutions as for offshore wind turbines. To help understand the implications of this for securing installation of an oANS we have identified the following initial questions it would be helpful if the Applicant could provide responses to: - What does it consider are the likely engineering and manufacturing requirements of such a structure? - What will these requirements mean in terms of the supply chain and logistics pathways e.g. access to specialist installation vessels? - How might this translate into lead-in times for the installation of a bespoke oANS? - What is the Applicant’s understanding of when the organisation responsible for commissioning and construction of an oANS under the KSIMP process will be identified and how might this affect the lead-in times? - What is the Applicant’s understanding of how these lead times will be affected by the different implementation routes it has identified e.g. via the TCE KSIMP or the MRF? The Applicant has stated that it proposes that consent for any oANS located within the two areas of search it has included within its red line will be secured through its DCO and Deemed Marine Licence. This raises the question of how any oANS will be secured should The Crown Estate’s KSIMP decide to locate any oANS within one of the Areas of Search not identified by either Outer Dowsing or Dogger Bank South. We have the following initial questions on this issue: - What steps has The Crown Estate taken to secure a marine licence for an oANS in the alternative Areas of Search? - Assuming no steps have been taken as no decision has yet been taken on the preferred Area of Search for any oANS under the KSIMP, what is the Applicant’s and The Crown Estate’s view on the implications of this for the implementation timelime for any such oANS? We consider the above initial questions are important in helping to understand, anticipate and reduce any potential foreseeable risks associated with the regulatory and commissioning pathway for installing an oANS. This is in order to reduce the risk of significant time delays in the implementation of oANS. GUILLEMOT AND RAZORBILL COMPENSATION The RSPB’s comments are based on an initial assessment of the Applicant’s documents, with particular reference to APP-252 (Guillemot Compensation Plan), APP-255 (Razorbill Compensation Plan), APP-257 (Without Prejudice Predator Control Evidence Base and Roadmap), APP-258 (Plemont Seabird Reserve Feasibility Study Report), and APP-259 (Without Prejudice Additional Measures for Guillemot and Razorbill Evidence Base and Road Map). The RSPB has compared APP-252 and APP-253 and, with the exception of necessary minor differences, they are almost identical and for the purposes of this Relevant Representation we will treat them as such. Based on our reading of the Applicant’s approach to its without prejudice compensation measures for guillemot or razorbill, we summarise it as follows: - Primary measure: predator control measures at the Plemont Seabird Reserve, Jersey. - Additional measures (if required by the Secretary of State): potential measures at coastal locations in south-west England focused on disturbance reduction, habitat management and possibly additional predator control. - Other measures e.g. bycatch reduction are kept under review. We make specific comment on the current evidence on bycatch reduction. The Applicant claims that the primary measure is capable of compensating for the predicted impacts on guillemot and razorbill based on the Applicant’s approach, and that the additional measures would be capable of addressing the substantially greater predicted impacts using Natural England’s approach. We will present a fuller assessment of these measures in our Written Representation using the approach described earlier in this representation. Below, we provide initial comments on the Applicant’s "Primary” and “Additional” compensation proposals. Predator control measures at Plemont Seabird Reserve The Applicant’s proposed predator control measure is based on a 2021 feasibility report (APP-258) carried out by the Birds on the Edge partnership (comprising National Trust for Jersey, Durrell Wildlife Conservation Trust and Government for Jersey Natural Environmental Department). This report confirms: - The presence of various Invasive Non-Native Species (INNS) in and adjacent to the reserve; and - The massive decline of both guillemot (extinct on Jersey) and razorbill (reduced to 8-10 pairs). The Applicant states there is sufficient nesting habitat to support its target population for guillemot and razorbill. It further claims there is connectivity between breeding auks in the Channel Islands and the UK National Site Networks for guillemot and razorbill and relies on evidence provided by Hornsea Four. For any predator management (eradication or control) measure to work, the RSPB notes there needs to be evidence of: - INNS predation of the species you wish to benefit from the measure and specifically which INNS predate which seabird species; and that - The predation is having a detrimental effect on the target colony e.g. evidence of reduced breeding productivity; and - Evidence that the proposed measure can be successfully implemented and maintained in practical terms; and - That the species you wish to benefit will respond positively to the measure implemented. At present, the RSPB is not persuaded that the Plemont predator control measure will provide the benefit claimed by the Applicant. Some of our initial questions include the following: - Causes of decline: What evidence is there of a link between the presence of INNS and the decline of guillemot and razorbill? The declines in their populations occurred primarily between the 1920s-1960s (see Image 1, page 12, APP-258), with no empirical evidence of the causes of those declines available. What other factors have been considered as potential contributors to these sustained declines (local extinction in the case of guillemot)? - Colony growth: How safe is the Applicant’s assumption that there will full restoration of the guillemot and razorbill colonies given the apparent existing availability of nesting space elsewhere across the Channel Islands (see for example Hornsea Four’s initial assessment of nesting habitat on various areas of Guernsey)? This rests entirely on the assumption that safe nesting space is the key limiting factor and that e.g. guillemots will recolonise the Plemont reserve, they will breed successfully over the long-term, that the colony will grow and that a proportion of birds fledged will breed within the UK National Site Network. - Impacts of other measures: what consideration has the Applicant given to the indirect impacts on its proposed measure from Hornsea Four’s planned predator eradication and control compensation measures elsewhere in the Channel Islands? This is important given the limited pool of breeding guillemots and razorbills within the Channel Islands. - Connectivity with the UK National Site Network: what evidence can the Applicant present that guillemots and razorbills reared in the Channel Islands eventually breed in UK colonies, especially those within the UK National Site Network for each species. This is ecologically distinct from evidence of occasional records of birds from the UK being recorded in the Channel Islands which is relied upon by the Applicant. The RSPB’s submission to the Hornsea Four examination provides further consideration of this issue (see section 3 in the RSPB REP5-120 to the Hornsea Four examination). - Evidence of public support for predator control measures: it is a key tenet of predator eradication and control that public support is critical to the success or failure of such measures. Resistance to such measures by relevant parts of the public can result in reduced success or complete failure. It is therefore essential information to be provided as part of the evidence base in support of any such measure. At paragraph 55 of APP-257 (Predator Control Evidence Base and Roadmap), the Applicant states that public opinion of the proposed predator control measure has been assessed through a public survey and that this will be presented to the Jersey Planning Department as part of any planning application. The RSPB requests that the Applicant provide a full copy of the survey (including detailed methodology and results) to the Examination so that the Examining Authority and Interested Parties can assess it and provide comment. Additional detailed comment will be set out in our written representation. Additional compensation measures for guillemot and razorbill APP-259 sets out the Applicant’s potential additional compensation measures for guillemot and razorbill should the Secretary of State conclude that the impacts of the Outer Dowsing scheme are greater than those predicted by the Applicant. APP-259 provides a general literature review of possible disturbance impacts on breeding guillemots and razorbills and possible management responses. The literature review highlights that the impacts of disturbance events on breeding birds may be varied, can be difficult to detect and require careful monitoring and research to establish whether they exist and the magnitude of any impact. It then goes on to identify six seabird colonies in south-west England where it considers it might be possible to implement management responses to address recreational use. The RSPB accepts in principle that recreational use (both from land and sea) can result in disturbance to breeding birds, including breeding seabirds and that in certain circumstances this can lead to damaging impacts resulting in colony decline. In such circumstances, based on robust evidence, it is necessary to put in place appropriate management responses. However, we have a number of significant concerns with the “evidence base” put forward by the Applicant with respect to the additional measures set out. In simple terms it fails to establish a link between observed declines and recreational use. Below we set out our initial concerns and will develop these in our written representation. - Evidence of existing recreational use: the Applicant has failed to carry out visitor surveys (magnitude, behaviour, disturbance events etc) at any of the six locations it has identified. There is no essential benchmark data to help understand how terrestrial and sea-based visitors interact with each seabird colony. This is essential to understand if disturbance events are occurring in the first place before carrying out further monitoring to determine if such events are having a negative impact on breeding seabirds. - Evidence of recreational use causing damaging disturbance impacts to breeding guillemots and razorbills: all information presented is anecdotal. With the exception of North Cliffs 1 (where the National Trust has identified coasteering as a local issue), there is little or no empirical evidence that recreational disturbance is actually occurring, let alone resulting in the observed declines in the populations of guillemot and razorbill at each colony. This is not a sound foundation upon which to assess a potential compensation measure that the Secretary of State is being asked to rely on. Our concern over the lack of such evidence is confirmed in section 7.1, paragraph 151 where the Applicant sets out its roadmap and states it will “assess the existence of, and the impacts from the pressures described here…”. We consider this work should have been presented as part of its application documents. We request the Applicant provide clarification on when it will provide this information to the examination for review by the Examining Authority and Interested Parties. We do not consider it acceptable to defer such fundamental work until post-consent. - Evidence of reduced breeding productivity: the Applicant has not provided any evidence of reduced breeding productivity at any of the six locations identified. While assumptions can be made of reduced productivity, before predicting the benefit to breeding success of any management measure it is essential to establish a baseline understanding of current productivity. - No specific measures are proposed for any colony: the Applicant states that it will only carry out further evidence gathering post-consent should the Secretary of State require additional compensation measures. This is unacceptable. Given the lack of any evidence of cause and effect, both the Examining Authority and Secretary of State will have no evidence in front of them on which to conclude that recreational use at any of the six locations is resulting in damaging disturbance impacts on breeding guillemots and razorbills which in turn is causing the observed declines. Nor is there any evidence presented on the efficacy of each of the wide range of possible measures listed by the Applicant; - Assumptions of benefit to breeding seabirds: the Applicant states that implementation of its unspecified measures at each colony will result in complete restoration of the colony decline (up to 2081 guillemots and 269 razorbills, paragraph 88, APP-259). Logically, it is claiming that 100% of the stated decline is due to unevidenced impacts of recreational disturbance, without any consideration of other factors that may be contributing to those declines. We consider this a fundamentally flawed assumption with no sound scientific evidence base provided as justification. - Claimed benefits to breeding seabirds: we draw to the Applicant’s and Examining Authority’s notice an inconsistency in the Applicant’s claimed capacity of the additional measures. In APP-252 and APP-255, the Applicant states in Table 2.3 that the potential capacity of the additional measures for guillemot and razorbill is 1040 pairs and 134 pairs. However, in Table 7.1 in APP-259, the equivalent figures are 520 pairs and 77 pairs. Additional detailed comment will be set out in our written representation. Bycatch mitigation as a compensation option In section 4.1 of APP-252 and APP-255 the Applicant considers bycatch mitigation as one of the possible options for compensation and states it will be kept under review. To assist the Examining Authority, the RSPB sets out its current position on the question of whether it is currently possible to mitigate the effects of bycatch on guillemots and razorbills. This is based on trials undertaken by the RSPB and partners as well as detailed review of the evidence published by Hornsea Four offshore wind farm which trialled a device known as the Looming Eyes Buoy (LEB). The RSPB continues to argue that the LEB is unproven as a measure that can successfully reduce bycatch in guillemot and therefore is wholly inappropriate as a compensation measure. Our detailed concerns were presented to both the Hornsea Four and Dudgeon and Sheringham Project Extension examinations. These set out the RSPB’s detailed criticisms of the Hornsea Four published evidence base which we considered seriously flawed. In October 2023, the RSPB and Fuglavernd (BirdLife Iceland) published the findings of research (Rouxel et al. 2023) testing the effects of LEBs in the Icelandic lumpfish fishery, assessing effects in seabird bycatch rates and target fish catch. The research “…found no effect of LEBs on both target lumpfish catch and bycatch” and “…there was…no significant reduction in bycatch for…common and black guillemots…”. Rouxel et al. 2023 remains the only published scientific, peer-reviewed study of the effectiveness or otherwise of LEBs at reducing bycatch of, among other things, auks – including common guillemot. We acknowledge that the nature of this fishery and its operative conditions are different to gillnet fisheries operating in UK waters. In addition, the RSPB and the Cornwall Inshore Fisheries and Conservation Authority have been undertaking trials of LEBs and predator-shaped kites in local gillnet fisheries, between 2022-2023. The results from this trial are not yet published but did not show evidence of LEBs having any statistically significant impact on seabirds' bycatch rate, including of common guillemots (Y. Rouxel, pers. comm.). Therefore, in the absence of scientifically peer-reviewed evidence from Hornsea Four or other offshore wind farm developer, our results seriously question any reliance being placed on LEBs as a compensation measure. The RSPB remains of the expert view that there is no evidence in the public domain at this time, peer-reviewed or otherwise, that supports the use of the LEB as an effective measure to reduce bycatch in common guillemots. Control of avian predators as a compensation measure At various places in APP-259, the Applicant considers the use of avian predator control as a possible additional compensation measure e.g. section 4.3.1. While it does not take this measure forward, we consider it would be helpful to the Examining Authority to set out here the RSPB’s position on this issue. The RSPB opposes managing specialist avian predators to provide compensation for windfarm losses. Seabirds have always co-existed with avian predators. Given adequate environmental conditions (e.g., breeding habitat, food supply, manageable additive mortality), that coexistence shows that specialist avian predators are not a long-term conservation threat. Windfarms pose an additional mortality risk to seabirds beyond the background mortality (which includes native predators). Overall, we do not believe that removing natural background mortality to tackle additional windfarm driven mortality is ecologically sensible. In contrast, non-native mammal predators on islands are different as they are not native and were introduced by people. As such only eradication of these species and biosecurity are appropriate elements of compensation packages where it can be demonstrated there will be a benefit to the affected seabird species. REFERENCES Burnell, D., Perkins, A.J., Newton, S.F., Bolton, M, Tierney, T.D. & Dunn, T.D. 2023. Seabirds Count, A census of breeding seabirds in Britain and Ireland (2015–2021). Lynx Nature Books, Barcelona Cook (2021) Additional analysis to inform SNCB recommendations regarding collision risk modelling. BTO Research Report 739. Peschko, V., Mendel, B., Mercker, M., Dierschke, J., & Garthe, S. (2021). Northern gannets (Morus bassanus) are strongly affected by operating offshore wind farms during the breeding season. Journal of Environmental Management, 279, 111509. Rothery, P., Newton, I., & Little, B. (2009). Observations of seabirds at offshore wind turbines near Blyth in northeast England. Bird Study, 56(1), 1-14. Rouxel, Y., Arnardóttir, H., & Oppel, S. (2023). Looming-eyes buoys fail to reduce seabird bycatch in the Icelandic lumpfish fishery: depth-based fishing restrictions are an alternative. Royal Society Open Science, 10(10), 230783. Tremlett, C.J., Morley, N., and Wilson, L.J. (2024). UK seabird colony counts in 2023 following the 2021- 22 outbreak of Highly Pathogenic Avian Influenza. RSPB Research Report 76. RSPB Centre for Conservation Science, RSPB, The Lodge, Sandy, Bedfordshire, SG19 2DL.