Loophole in “favourable condition” definition for MCZs, claims marine scientist

Dr. Miles Hoskin, Coastal & Marine Environmental Research (CMER), has stated: “I’ve found something amongst the consultation material on DEFRA’s website that, if enacted, would seem to create a major legal loophole that could prevent MCZsMCZ Marine Conservation Zone being a force for positive change, even in the few places where they are eventually designated. From talking to various other people and organisations involved with MCZs, nobody else seems to have spotted this, but just about everyone I’ve pointed it out to has responded with shared concern.

“The loophole arises from the suggested legal definition of favourable condition for habitats and habitat FOCI [Features of Conservation Importance] in MCZs (as given in Article 4, Schedule 2, Section b(iii) of the example Designation Order – see: www.defra.gov.uk/consult/files/mcz-annex-g-121213.pdf ).

It states:- ― ” favourable condition” means
(b) in relation to a habitat or habitat FOCI within the area designated —
(iii) the biological diversity of its characteristic communities is maintained such that the quality and occurrence of habitats and the composition and abundance of species in those communities are at least as favourable as those characteristically found in the prevailing physiographical, geographical and climatic conditions;

To my mind at least, this target is not just non-aspirational, it’s wholly regressive and self-defeating as a driver for nature conservation. “…at least as favourable as those characteristically found in the prevailing physiographical, geographical and climatic conditions” would translate practically as ‘no worse than the condition of comparable features in places that are not MCZs’.

If comparable features outside MCZs are characteristically in degraded condition due to one or more anthropogenic activities, then this characteristic condition becomes the ‘favourable condition’ target for the same features within MCZs.

Hence, management would only be deemed to be failing when the condition of an MCZMCZ Marine Conservation Zone feature was significantly worse than that of comparable features in the surrounding area that are not MCZs and that may be in degraded ecological condition.

If there is no legal driver for maintaining or restoring features to a condition that is better than that “characteristically found in the prevailing physiographical, geographical and climatic conditions”, including potential anthropogenic impacts, then I don’t really see the point in having MCZs.

As an aside, this highlights the danger of not having Reference Area MCZs in the network, which seems to be where the politics is going. Without these, there is no objective basis for defining an aspirational target condition.

Unless I’ve overlooking something that negates the significance of Defra’s example Designation Order, I think that anyone hoping that MCZs will do more than just perpetuate the status quo needs to object strongly to this definition of favourable condition.

My suggestion for an alternative wording would be to append the phrase “in the absence of significant anthropogenic impacts” to the current definition at b (iii), hence:-

“the biological diversity of its characteristic communities is maintained such that the quality and occurrence of habitats and the composition and abundance of species in those communities are at least as favourable as those characteristically found in the prevailing physiographical, geographical and climatic conditions in the absence of significant anthropogenic impacts.”

If the current definition was an inadvertent self-defeating error by whoever drafted it, then it’s hard to see how they could object to this amendment – it would just guarantee what they’d originally intended. I don’t think I’ve overlooked anything, but at the same time I can’t quite believe what Defra has written here.

“For information, I have discussed this issue with marine policy officers in several wildlife and conservation NGOs and a number of highly-respected marine scientists, and all either agree with my interpretation, or at least concede that the current definition is highly ambiguous.”

I would be interested to hear the responses of others to this point. Dr Miles Hoskin, Coastal & Marine Environmental Research (CMER), 2 Raleigh Place, Falmouth, Cornwall TR11 3QJ Tel: 01326-219 498 Mob: 07976-437 463  Email: email hidden; JavaScript is required

Source: CMS, 25th March 2013

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