AMENDMENT TO THE SALMON (FISH PASSES AND SCREENS) (SCOTLAND) REGULATIONS 1994
1. This consultation letter seeks your views on a proposed amendment to the Salmon (Fish Passes and Screens) (Scotand) Regulations 1994 which will require the operators of fish passes, sluices, by-washes and screens to maintain these facilities to ensure the safe passage of salmon past dams and offtakes.
Background to the proposal
2. The 1994 Regulations apply to rivers that ordinarily contain upstream migrating salmon. They require that:
the operator of every dam shall ensure that it is provided with a fish pass which facilitates the free passage of salmon at all times except during any period when, for natural reasons, the flow of the river at the point where the dam is located is so low that salmon would not reasonably be expected to seek passage;
the operator of every lade shall ensure that it is provided with a sluice to control the flow of water;
the operator of every off-take shall ensure that a screen, which prevents salmon smolts from passing through it, is provided at its entrance or within it;
where the screen is situated within the off-take, that a continuous by-wash is provided immediately upstream of the screen, by means of which salmon smolts may return by as direct a route as practicable to the river from which they came; and
where an off-take returns to inland waters, that a screen is provided at the downstream outlet which prevents adult salmon from entering the outlet of the off-take.
3. The Regulations also require that when these facilities are installed or being maintained, the work shall be done in such a manner as to ensure the minimum practicable interruption to the passage of salmon.
4. The Department has been advised, however, that the Regulations contain no explicit requirement to undertake such maintenance. This proposed amendment seeks to address that shortcoming. This will require that owners undertake necessary maintenance within a determined period of time. The proposal at the moment is that this should be no longer than 3 days from the date of the obstruction becoming known, unless conditions mean that health and safety might be put at risk in the attempt to do so. Failure to carry out maintenance within the prescribed time could result in a criminal action being taken against the owner.
Burdens on industry
5. Despite the absence of an explicit requirement for maintenance, most operators undertake necessary maintenance as a matter of course. It is unlikely, therefore, that this amendment will impose any greater burden on industry than is currently borne. However, it is a draft and we would welcome views. In particular, it would be helpful if you could identify and quantify any additional direct or indirect costs resulting from the adoption of the proposal outlined above that may impact on your business or sector. These will be taken into account in drafting the final version.
17. Comments on the proposed amendment are invited from all interested parties and should be sent, to arrive no later than 30 May 2003, to Richard Gustar at the following address:
Scottish Executive Environment and Rural Affairs Department
Freshwater Fisheries, Aquaculture and Marine Environment
47 Robb's Loan
Comments may also be submitted in electronic format to firstname.lastname@example.org
18. As is normal with all Scottish Executive consultations, all responses will be made available publicly unless the respondent specifically indicates that he or she wishes that it remain confidential. Copies of the consultation document and associated documents, together with responses, will be available in the Scottish Executive Library, Saughton House, Edinburgh.
19. An electronic copy of all the associated documents is also available on the Scottish Executive website at www.scotland.gov.uk/library4/ERADRA/FFAME/00016199.aspx
SEERAD: Freshwater Fisheries and Aquaculture
SCOTTISH STATUTORY INSTRUMENTS
The Salmon (Fish Passes and Screens) (Scotland) Amendment Regulations 2003
Laid before the Scottish Parliament 2003
Coming into force 2003
The Scottish Ministers, in exercise of the powers conferred by section 3(2) of the Salmon Act 1986() and of all other powers enabling them in that behalf, and after having consulted such persons as they consider appropriate, hereby make the following Regulations:
Citation, commencement and extent
1.-(1) These Regulations may be cited as the Salmon (Fish Passes and Screens) (Scotland) Amendment Regulations 2003 and shall, come into force on 1st April 2003.
(2) These Regulations extend to Scotland only.
Amendment of the Salmon (Fish Passes and Screens) (Scotland) Regulations 1994
2. For regulation 7 of the Salmon (Fish Passes and Screens) (Scotland) Regulations 1994() there is substituted-
" Installation, maintenance etc
7.-(1) The operator of a dam or off-take shall carry out any work necessary to comply with these Regulations in such a manner as to ensure the minimum practicable interruption to the passage of salmon.
(2) The operator of a dam or off-take shall-
(a) maintain in good repair any fish pass, sluice, screen or by-wash provided by the operator in terms of regulation 4, 5 or 6; and
(b) remove any obstruction to such fish pass, sluice, screen or by-wash as soon as is reasonably practicable and in any event not later than 72 hours of the obstruction coming to the attention of the operator of the dam.
(3) It is a defence for a person charged with a contravention of regulation 7(2)(b) to prove that any attempt to remove the obstruction would have incurred a significant risk of serious injury.
(4) The operator of a dam or off-take shall carry out any maintenance of it or of any fish pass, sluice, screen or by-wash in such manner as to ensure the minimum practicable interruption to the passage of salmon.".
[Authorised to sign by the Scottish Ministers]
St Andrew's House,
( This note is not part of the Regulations)
These Regulations amend the Salmon (Fish Passes and Screens) (Scotland) Regulations 1994 ("the Principal Regulations").
The Regulations substitute a new regulation 7 that imposes a duty upon the operator of a dam or off-take to maintain a fish pass, sluice, screen or by-wash provided in terms of regulation 4, 5 or 6 of the Principal Regulations. The new regulation also requires the operator of a dam or off-take to remove any obstruction in a fish pass, sluice, screen or by-wash as soon as is reasonably practicable and in any event not later than 72 hours of the obstruction coming to the attention of the operator of the dam. The Regulations also provide a statutory defence to a contravention of regulation 7(2)(b) (regulation 2).
A contravention of regulation 7 will be dealt with as an offence under section 15(8) of the Salmon Fisheries (Scotland) Act 1868 punishable on summary conviction in accordance with section 6 of, and Schedule 2 to, the Freshwater and Salmon Fisheries (Scotland) Act 1976 (c.22) by a fine not exceeding level 4 on the standard scale.