SEPA Natura Procedure Assessment Record (under the ... · From previous discussions with SNH and the Dee Fishery Board, along with information in the applicant’s supporting information,

SCOTTISH ENVIRONMENT PROTECTION AGENCY Doc’t Number: WAT-FORM-32

SEPA Natura Procedure Assessment Record (under the Controlled Activities Regulations)for Special Areas of Conservation and Special Protection Areas

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Issue No: v1.1

Issue date: Dec 2016

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THIS DOCUMENT IS UNCONTROLLED WHEN IN HARD COPY OR STORED IN ANY ELECTRONIC FORMAT OTHER THAN IN THE BUSINESS MANAGEMENT SYSTEM.

WAT-FORM-32 v1.1 Dec 2016

Record of the assessment of the conservation implications of the Muick Hydro SchemeLicence application number: CAR/L/1165290

The following document has been prepared by the Scottish Environment Protection Agency as the Competent Authority for the above licenceapplication and, where applicable, Scottish Natural Heritage as the relevant Statutory Nature Conservation Agency. SNH staff will follow thisapproach on being consulted on an Appropriate Assessment relating to the licence application. They will respond to the questions in boxes 13 -15.This will not include giving an opinion on whether or not there is an impact on integrity. That will be decided by SEPA.

This record should be read in conjunction with the following documents:CAR Licence Application Documents (Form A and D)Muick Hydro Scheme Environmental Statement (including Appendices)Muick Hydro Scheme Non-Technical Summary

SEPA Coordinating Officer: Environmental Protection OfficerDate of completion of assessment of likely significant effect: 16/03/2018

If applicable, date SNH consulted on appropriate assessment: << Enter Date>>If applicable, date of completion of appropriate assessment: << Enter Date>>

SNH case officer providing advice:

If applicable, date SNH advice submitted to SEPA: 30 March 2018

Boxnumber

Completedby

Project and sitedescription

1

For SEPAuse only

Brief description of theproject

Proposed construction and operation of a new run-of-river 2MW hydroelectric scheme on the RiverMuick (without water storage facility).

Water to be abstracted from the River Muick via a low profile concrete weir (1.7m in height) at NO 32438872, and transported via a buried pipeline to the powerhouse. A tailrace leading from the powerhousewould return the flow to the River Muick approximately 3 km away from the abstraction point at NO 3450



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9089.

The maximum water abstraction volume per day equates to 276,480m3 per day

2

For SEPAuse only

Special Areas ofConservation or SpecialProtection Areas withinthe screening distance ofthe project

River Dee SAC (both water and groundwater dependent SAC) (Eur code: UK0030251)

3

For SEPAuse only

Qualifying interests forthe SAC/SPA (habitatsand/or species) andconservation objectivesfor each of theseinterests

Site QualifyingInterests

Conservation Objectives

RiverDee SAC

Atlantic salmonSalmo salar)

Freshwaterpearl musselMargaritifera

margaritifera)

Otter (Lutralutra)

To avoid deterioration of the habitats of the qualifying species or significantdisturbance to the qualifying species, thus ensuring that the integrity of thesite is maintained and the site makes an appropriate contribution toachieving favourable conservation status for each of the qualifying features;and

To ensure for the qualifying species that the following are maintained in thelong term:

Population of the species, including range of genetic types for salmon,as a viable component of the site

Distribution of species within the site

Distribution and extent of habitats supporting the species

Structure, function and supporting processes of habitats supporting thespecies

No significant disturbance of the species

Distribution and viability of freshwater pearl mussel host species

Structure, function and supporting processes of habitats supportingfreshwater pearl mussel host species



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4

For SEPAuse only

Is SEPA aware of anyexisting managementplan for the site,approved by SNH, underwhich the controlledactivity has already beendetermined to be directlyconnected with, ornecessary to,conservationmanagement of theSAC/SPA?

The controlled activity is not directly connected with, or necessary to, the conservation management ofthe River Dee SAC. Therefore, further consideration of a likely significant effect is needed.

Assessment of likelysignificant effect

5

For SEPAuse only

Which controlledactivities are involved inthe licence application?

Impoundment – the construction and/or operation of impounding works 1.7m in height

Abstraction – the abstraction of 276,480 m3 day of water and return of associated water approximately3 km away from abstraction point

6

For SEPAuse only

Taking into account anystandard conditions thatwould apply or otheragreed licenceconditions, will anyEnvironmental Standardsor Standards/ Criteria for

engineering works) in theSEARS document ‘NCP-SG-01 EnvironmentalStandards for ControlledActivities in waterdependent SACs andSPAs’, and which are

The standard conditions for hydro developments require that best practice is employed in relation topollution mitigation. Provided this best practice is followed it is not likely that standards for suspendedsolids will be exceeded. CAR licences for hydro developments routinely contain conditions relating to therequirement to submit a method statement for the works. Experience elsewhere has shown that wherebest practice is adopted during construction water quality is protected. Consequently it is anticipated thatthis aspect can be adequately controlled and is unlikely to impact on otters, freshwater pearl mussels orAtlantic Salmon.

The standard licence condition would require a hands off flow which would prevent the river between theintake and return point from drying out, however the licence condition would not prevent the breach ofthe river flow standards. The River Muick is currently classified as being at Good Ecological Status andthe river flow standards are consistent with High. The developers proposals, in Appendix 7-C FisheriesAssessment, Section 6 Recommended HEP abstraction regime, indicates that the maximum abstraction



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relevant to the controlledactivity, be breached bythat proposed activity?

rate will exceed 40% of the available flow at certain times of the year. The maximum permittedabstraction for the river to remain at High is 10% of the daily flow. The standards are set out in Part B ofschedule 2 – Tables B1.1 to B1.7, of The Scotland River Basin District ( Standards) Directions 2014.SEPA’s assessment of the impact on river flow standards is summarised in the table below:

Downstream ESF Tests

Assessment point description3.24 km downstream of Muick Hydro Intake - Immediately

upstream of Muick Hydro Tailrace.

Effective take (% of flow removed)

Q10 49.8%

Q30 72.2%

Q70 48.7%

Q95 0.0%

Q98 0.0%

Proposed Environmental Flow Standard

Environmental Standard at Q10 Moderate

Environmental Standard at Q30 Poor

Environmental Standard at Q70 Moderate

Environmental Standard at Q95 High

Environmental Standard at <Q95 High

Overall standard at assessment point Poor

SEPA therefore concludes that as one or more relevant Environmental Standard in the document ‘WAT-SG-90: Application of environmental standards in assessing risks to river and loch Natura 2000 interests’will be breached as a result of the controlled activity, there is potential for a Likely Significant Effect. Adetailed assessment of the breach of environmental standards for river flow will be carried out anddocumented in the working file for this application.



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7

For SEPAuse only

Any other reasons toconclude No LikelySignificant Effect?

Where a relevantEnvironmental Standardwill be breached, basedon any information thatSEPA already holds, isthe relevant qualifyingspecies or habitatinterest known not to bepresent at the specificlocation to be affected bythe controlled activity,either permanently or,where appropriate,seasonally?

The developer has provided a survey of freshwater pearl mussels in the vicinity of the proposal. Thissurvey, Appendix 7-B, concludes that no freshwater pearl mussels were recorded at the site andtherefore SEPA would conclude no Likely Significant Effect for this qualifying interest.

From previous discussions with SNH and the Dee Fishery Board, along with information in theapplicant’s supporting information, SEPA is aware that the Atlantic Salmon qualifying interest is presentwithin the affected reach. Consequently the failure of standards for river flows has the potential to affectthis qualifying interest. Furthermore, Appendix 6-C & 6-J presents evidence from the Extended Phase 1Report of foraging otter accessing the depleted reach, albeit no resting sites and holts were observed.Otter are a predator of Atlantic salmon therefore should fish populations be adversely effected due to areduction in river flows the local otter population may be indirectly adversely effected due to a reducedfood source.

SEPA cannot therefore, at this stage rule out a Likely Significant Effect.

8

For SEPAuse only

List any remaining failureof standards where thereare no other reasons toconclude no LikelySignificant Effect.

As set out above, the river flow standards will be breached by the abstraction and therefore SEPAcannot conclude that there is no Likely Significant Effect.

Conclusion ofassessment of likelysignificant effect

9

For SEPAuse only

Is the plan/project likelyto have a significanteffect on the SAC/SPA,either alone or incombination, with otherplans or projects?

It is SEPA’s view that, due to the breach of the Environmental Standards for river flows, the controlledactivity will have a likely significant effect on the River Dee SAC and an appropriate assessment mustnow be undertaken.



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Appropriate Assessment stage

10 For SEPAuse only

For each instance of LSEin Row 8, identify thechanges expected, asapplicable, to waterquality, waterflows/levels,morphological conditions,and the extent of waterenvironment likely to beaffected by the controlledactivity

The deterioration of river flow standards from High to Poor over a length of 3.24km will result in anoticeable reduction in middle range flows associated with wetter days. The lower flows will be protecteddue the inclusion of a condition in the licence and there will also be a condition requiring some variability,but much less than natural. The abstraction of water will not result in an appreciable reduction in thelargest flows.

11 For SEPAuse only

For each instance of LSEin Row 8, identify therelevant conservationobjectives for eachrelevant SAC or SPAqualifying interest.

Conservation Objectives for the qualifying species

To avoid deterioration of the habitats of the qualifying species or significant disturbance to the qualifyingspecies, thus ensuring that the integrity of the site is maintained and the site makes an appropriatecontribution to achieving favourable conservation status for each of the qualifying features; and

To ensure for the qualifying species that the following are maintained in the long term:

Population of the species, including range of genetic types for salmon, as a viable component of thesite


Distribution and extent of habitats supporting the species

Structure, function and supporting processes of habitats supporting the species


Distribution and viability of freshwater pearl mussel host species

Structure, function and supporting processes of habitats supporting freshwater pearl mussel hostspecies



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The proposed controlled activities are likely to impact on the following conservation objectives in so faras they relate to Atlantic salmon and otter:

Population of the species, including range of genetic types for salmon, as a viable component of thesite


Structure, function and supporting processes of habitats supporting the species


12

For SEPAuse only

SEPA’s currentunderstanding of thedistribution and conditionof the qualifyinginterest(s) in the part ofthe water environmentlikely to be affected bythe controlled activity

Appendices 7-C & D of the applicant’ s supporting information make it clear that Atlantic Salmon arepresent within the river reach likely to be affected by the proposal and migrate upstream anddownstream to spawn. The migration of fish through this reach is likely to be affected by changes to theriver flows, and particularly flows at the fish pass at Linn of Muick and at the proposed fish pass at thehydro scheme intake.

It is understood from the SNH Sitelink website that the most recent surveys have classified the AtlanticSalmon and otter populations as being in favourable maintained condition and favourable decliningcondition respectively.

13

For SNHuse only

SNH advice andinformation onunderstanding of thedistribution and conditionof the qualifyinginterest(s) in the part ofthe water environmentlikely to be affected bythe controlled activity, inrelation to the site’sconservation objectives

Other than our latest SCM report (attached), we do not hold any relevant information additional to that tothat submitted by the applicant in relation to salmon in the affected reach.

In relation to the information requested in your letter of 19 March, for questions (i) and (ii), we would referyou to the information submitted by the applicant. In relation to question ( iii), Atlantic salmon in generalare often genetically adapted to local catchments. It is likely that this applies to salmon associated withthe River Muick.



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Authorised by:



14

For SNHuse only

SNH advice andinformation on thepotential importance ofthe qualifying interest(s)in the part of the waterenvironment likely to beaffected, in relation to thesite’s conservationobjectives

We cannot quantitatively advise on the importance of the affected reach. However, qualitatively, in thecontext of declining returns of salmon, we consider the Muick to be equally important to other productivetributaries of the River Dee.

In relation to question (v) in your covering letter, salmon in the site as a whole were considered to be infavourable condition when they were last monitored. Further information on this is included in theattached report. However, note that this does not include an estimate of population size as requested,but uses trends in rod catch data.

15

For SNHuse only

Any other relevant SNHadvice or informationregarding the appropriateassessment

N/A

16

For SEPAuse only

SEPA’s appropriateassessment, takingaccount of SNH’s adviceand information above.

The appropriate assessment may be undertaken in two distinct phases. The assessment comprisesboth SEPA’s judgment and justification for this. The first is a scientific appraisal of the impact of thecontrolled activity on the qualifying interests. The second is the decision making process based on thisappraisal. The two together make up the appropriate assessment. In this row, record SEPA’sassessment of the likely impact on the qualifying interest(s) in the part of the water environment likely tobe affected by the controlled activity, including whether those alterations are likely to be temporary orpermanent. Include here any ‘in combination’ effects of this controlled activity with other projects.>>

17

For SEPAuse only

Identify any enforceableconditions agreed withthe applicant, which willremove the risk of anadverse effect from theelements of the projectlisted above.

Further information from, or discussion with, the applicant may help to establish this. Include anyadditional mitigation conditions agreed with the applicant and detail the likely significant effectsaddressed by any agreed mitigation conditions. >>

18

For SEPAuse only

List any remaining likelysignificant effects, oridentify those for which itis not possible todetermine that there is no

Include all likely significant effects not able to be addressed by the standard conditions or mitigationconditions described above.>>



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Guidance for escalation procedure in Step 20In exceptional circumstances SNH may decide that if SEPA conclude there is no impact on integrity there is a risk of failure to secure compliancewith the requirements of the Directives (Habitats and Birds).

In these exceptional circumstances where a different position exists the matter should be escalated through the appropriate channels of eachAgency as expediently as possible. In SEPA this is the relevant Unit Manager. In SNH, escalation will be to the Operations or Area Manager. TheManagers will coordinate further liaison to reach an agreed position bringing together relevant parties as required. In exceptional circumstanceswhere agreement still cannot be reached a document outlining the differences will be jointly prepared for consideration by more seniormanagement in both Agencies. Very occasionally, despite making every effort to find a solution, SNH and SEPA may be unable to agree. In suchcases it is important to clearly document the justification for concluding non-complementary positions. At this point SNH should request a 21 daynotice letter from SEPA with the option to ask SG to review the decision within the set period.

likely significant effect.

Conclusion ofAppropriateAssessment

19

For SEPAuse only

Can it be ascertainedbeyond reasonablescientific doubt that thecontrolled activity will notadversely affect theintegrity of theSAC/SPA?

20a: << Taking account of the issues considered in the Appropriate Assessment and any mitigationmeasures which can be enforced as licence conditions, if no further issues then remain it can be statedthat:‘ In the view of SEPA, provided that the mitigation measures outlined above are adopted by meansof enforceable conditions attached to the CAR licence, then it is beyond reasonable scientific doubt thatthe controlled activity will not adversely affect the integrity of the [insert SAC or SPA name].’>>

20b: << Otherwise, if any likely significant effects remain and that cannot be avoided through modifyingthe controlled activity or through enforceable conditions on the CAR licence then it should be stated that:In the view of SEPA, it is not beyond reasonable scientific doubt that the controlled activity will notadversely affect the integrity of the [insert SAC or SPA name].’>>

20

For SEPAuse only

Does SNH agree with theconclusion of theAppropriateAssessment?

Ensure SNH is aware of the reasoning and proposed conclusions of the Appropriate Assessment.

20a: If SNH agrees with the conclusion of the AA, then proceed to determine the licence without theneed to send a 21 day notice letter to SNH.

20b: If SNH does not agree with the conclusion of the AA, then escalate through relevant line managerfor resolution.(see guidance below)