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Aquaculture and Fisheries Bill - Consultation Document

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SECTION 1: THE SUSTAINABLE DEVELOPMENT OF AQUACULTURE

1. The (finfish and shellfish) aquaculture industry is an important sector of the Scottish economy with excellent prospects and ambitious plans for growth. Those prospects can only be realised and sustained if, amongst other things, the industry adheres to the highest environmental and husbandry standards, and any wider impacts of fish farming are understood, mitigated and managed. Proposals set out below have been developed with those key aims in mind.

2. This section of the consultation paper takes much of its lead from the work of the Ministerial Group on Aquaculture and in particular recommendations of the Healthier Fish Working Group established under the renewed Strategic Framework for Scottish Aquaculture, published in 2009. In some cases we propose to go further than that Group recommended. Where that is the case, the rationale for doing so is explained.

Farm Management Agreements ( FMAs)

3. Development of good practice and cooperation between producers is widely recognised as a critical component of good husbandry and in ensuring high standards of farmed fish health. The role of FMAs is reflected in A Code of Good Practice for Scottish Finfish Aquaculture ('the Code'), developed in collaboration between industry, government, regulators and other stakeholders and published in 2006 (revised in 2011). They are a key element in the strategic approach in Scotland to sustainable management.

4. FMAs between marine finfish operators should cover approaches in each area to issues such as:

  • stocking;
  • fallowing;
  • husbandry and biosecurity;
  • management practices, including for the control of sea-lice;
  • information sharing.

5. The Code is, however, voluntary: there is no legal requirement for operators to sign up to FMAs, nor any sanctions for failure to do so. There is a risk that those - albeit relatively few operators - operating outside the Code may undermine the efforts of those working on a co-operative basis, under FMAs, with associated risks to those other farmers and the wider environment.

6. We therefore believe that we should consider giving FMAs statutory backing. This would encourage operators to reach agreement on appropriate management arrangements, strengthening the current voluntary fish farming management regime and offering greater security and reassurance to those who currently manage their operations in line with the Code.

7. There is a number of ways in which this might be achieved - for example by Ministers 'adopting' the Code (although it covers much more than FMAs and its adoption would imply a need to monitor and enforce, on a statutory basis, the range of issues it covers); or by defining FMAs in statute (but which would require too detailed a level of statutory definition, and provide insufficient flexibility to allow for ease of subsequent changes).

8. We therefore propose to create a legal requirement that all finfish operators in the marine environment must participate in a Farm Management Agreement, as recommended by the Healthier Fish Working Group. This would mean, amongst other things, existing operators having to take ownership and agree appropriate arrangements to be implemented in their management area; and that any new operators coming in to an area covered by an existing agreement would be required to join in that, or an amended, agreement. This requirement would be backed up by appropriate sanctions - for example, for operating whilst failing to participate in an agreement, for breaching the terms of an agreement etc.

9. We do not underestimate the difficulties involved in such an approach, including the need for individual fish farm operators to agree and work towards appropriate and practical co-ordinated and complementary measures under an FMA. We would need to consider what would constitute acceptable arrangements; and there would need to be certain safeguards - which may include, for example, provisions for acceptable alternative measures to be agreed, and a transitional period for FMA arrangements to be agreed and implemented.

Q Do you agree that we should, subject to appropriate safeguards, make it a legal requirement for marine finfish operators to participate in an appropriate Farm Management Agreement with sanctions for failure to do so, or to adhere to the terms of the agreement?

Appropriate Scale Management Areas ( MAs)

10. The Healthier Fish Working Group recommended that management areas should be delineated by the industry, through the Code. This recognised that there was (and there remains) incomplete information and understanding about connectivity between farms and areas and the need for further scientific work and evidence on which to base decisions. Knowledge and evidence is expected to develop, and influence judgements on the most appropriate approaches, over time. Management areas currently in place are set out in the Code.

11. We propose that operators should retain primary responsibility for determining the boundaries of MAs. But we also propose that Scottish Ministers should have powers to specify MA boundaries, or other relevant measures, where this is felt necessary and appropriate in the wider public and environmental interest - for example:

  • to ensure appropriate disease firebreaks between adjacent areas;
  • where there are serious or persistent significant disease or parasite issues in a particular area or areas, which are not being adequately addressed;
  • if evidence emerges of connectivity between sites (for example through parasite and disease information or from bathymetric and sea lice dispersal modelling) and management areas;
  • if there are significant sea lice problems and significantly challenged wild salmonid populations, and evidence of connectivity between sites, which would suggest that a larger (or different) management area is likely to help address these issues.

12. It is envisaged that these powers would be used on a precautionary or reserve basis, possibly in conjunction with other measures.

Q Do you agree that operators should have primary responsibility for determining the boundaries (and other management arrangements) for Management Areas, but with Scottish Ministers having a fallback power to specify alternative areas?

Management Measures and Dispute Resolution

13. As indicated above, we believe operators, rather than government, are best placed to determine the scale and the most appropriate management arrangements for a particular Farm Management Area/Agreement. We recognise, however, that there may be instances where, for a variety of operational or other reasons, it may not be possible for operators readily to agree mutually acceptable arrangements.

14. We therefore propose that there should be an independent process, with statutory backing, for arbitration between interested parties where it has not been possible for agreement to be reached. There are a number of ways in which this could be taken forward. We could, for example, provide for Ministers to maintain a panel of arbiters from which the parties involved would be able to select (see, by way of comparison, arrangements in agriculture and proposals related to salmon and freshwater fisheries later in this document); or for them to appoint an arbiter (and/or to delegate that responsibility to a third party).

15. The Scottish Salmon Producers' Organisation ( SSPO), which is a "Producer Organisation" established under European law with the ability to take on certain quasi-regulatory functions, has suggested it might take responsibility for developing arrangements for access to an independent arbitration process, the outcomes of which would be binding on the parties involved.

16. There are a number of related considerations, including how we might give any such approach statutory backing; detailed (including funding) arrangements; and the need for assurances that any such system would operate in a fair and transparent way. We would welcome views on these issues.

Q Do you agree that an independent arbitration process should be put in place (with statutory underpinning) to resolve disputes related to Farm Management Agreements?

Q How do you think such a system might best be developed?

Unused Consents

17. We set out in the pre-consultation draft of Scotland's National Marine Plan an objective to address the issue of unused fish and shellfish farm consents ( i.e. seabed leases, planning consents, biomass and discharge consents, marine licences etc).

18. The Locational Guidelines for the Authorisation of Marine Fish Farms in Scottish Waters provide guidance on the environmental suitability of coastal areas for fish farming, taking into consideration the discharge consents granted. The potential impacts of the consents granted are taken into account, irrespective of whether every consent is actively being used or not. In practice this can complicate management of the sector as a whole and constrain production in particular areas or overall (since, for example, the amount of biomass authorised for production, and taken into account in impact assessment, exceeds considerably the amount of biomass that is actually being produced). There is an evident need to review this approach, alongside other issues set out in this consultation document, in the interests of sustainable growth of the industry.

19. We are aware that the issue is complex. Consents for unused sites may be held for a variety of reasons, including:

  • to hold sites as buffer zones, as part of management area arrangements to assist in fish health and disease management;
  • to facilitate fallowing, with operators utilising different sites as part of a rotational production cycle;
  • pending the acquisition of other consents necessary, in addition to those already acquired, to develop and operate sites for aquaculture;
  • since the sites and related consents comprise in effect a commercial asset belonging to the company/operator;
  • as a consequence of an operator stopping farming and pending the relinquishment of existing consents.

20. It should be acknowledged that there are some existing incentives to develop unused sites, such as the Crown Estates' charging regime. Other possible incentives that might be considered could include, for example:

  • withdrawing consents for sites where they have not been used for a period of time (such as the 3 year rule imposed by Shetland Islands Council for rescinding the Works Licence), or if they have fallen derelict;
  • considering the scope for further charges (in a similar way to those imposed by the Crown Estate) if a site lies inactive/unproductive for a defined period of time;
  • placing conditions on consents to develop sites within a given period (say 3 years);
  • reducing the amount of biomass consented (in relation to a discharge consent) for inactive/unproductive sites after a period of time;
  • revoking unused consents.

Q Do you agree we ought to review the question of unused consents?

Q What do you consider are suitable options to promote use or relinquishment of unused consents?

21. We believe that, ultimately, it would be appropriate for the Scottish Ministers, and/or the Planning Authorities, to have the power to revoke consents, at least in certain circumstances (for example, where the owner of a site may not be traceable). This could help to ensure that sustainable developments in aquaculture are not constrained by lack of access to appropriate sites for development. Similarly, revoking an unused biomass consent could mean, in effect, freeing up an equivalent amount of biomass production. The power to revoke consents may also be a helpful and necessary option as our understanding of the impacts, interactions and management of aquaculture improve and we develop our locational policies and approaches.

Q Do you agree that Scottish Ministers should be given powers, ultimately, to revoke, or to require or request others to revoke, consents? Should any such power relate to all or to particular consents (and if the latter, which)?

Collection and Publication of Sea-lice Data

22. The question of access to sea-lice data was perhaps the most contentious faced by the Healthier Fish Working Group: its recommendations are set out, for ease of reference, at Annex A. The issue remains a key area of contention between aquaculture and salmon and freshwater fisheries interests.

23. The Group recommended a two-pronged approach, based on an industry-run database which would provide publicly facing reports on sea-lice numbers, aggregated over six regional zones, tied to a new statutory reporting requirement to the Scottish Ministers for sea-lice treatment failures.

24. There are arguments for the provision and publication of more detailed data, including in the interests of openness and transparency; and to aid understanding of the incidence and potential impacts of sea-lice and the consequent need and options for management measures.

25. On the other hand, issues surrounding sea-lice, their impacts and management are highly complex. Data need to be properly presented, explained and understood, otherwise there is a risk that they may be misinterpreted, or indeed misused and misrepresented.

26. For strategic and research purposes, Marine Scotland does not require detailed data on a real time, or near real-time, basis: nor could we resource substantive new systems and arrangements to collect and analyse detailed data. We do however want to ensure that sea-lice issues are properly understood and managed: and that we maintain our position in Scotland as at the forefront of best international practice in aquaculture management.

27. There are numerous examples of sea-lice data collection and reporting internationally, which it may be appropriate to consider. For example:

  • In Norway, fish farmers report data on mortality, slaughter and biomass on a monthly basis and are also required to report other data, including treatments against sea-lice and development of resistance to such treatments. Farmers producing Atlantic salmon and trout are required to report sea-lice numbers on a weekly basis to the Norwegian Food Safety Authorities ( NFSA). Sea-lice statistics are published on a webpage each month, with a public report (which includes wider information) published by the NFSA approximately quarterly. Data are published at a County level, although further detail may be made available on request under freedom of information arrangements;
  • Ireland collects and makes available more sea-lice data than we do at present, or would following implementation of the Healthier Fish Working Group's proposals (see for example "National Survey of Sea Lice on Fish Farms in Ireland" at http://www.marine.ie/NR/rdonlyres/1D6D8C2D-E10C-47BD-99D5-592FE9A725EB/0/B22.pdf
  • Arrangements in Canada are evolving, with different arrangements in different Provinces. Companies operating in British Columbia, for example, must report sea lice monitoring results monthly on a site by site basis to the Federal Government's Fisheries and Oceans Canada ( DFO). DFO will publish this information every quarter. It should be noted that about 70% of Canada's farmed Atlantic salmon production occurs in British Columbia - mainly by companies also operating in Scotland and Norway. Further information is available at: http://oar.marine.ie/bitstream/10793/104/1/IFB%20no.%2034.pdf

28. Beneath these headline arrangements, however, lie many detailed issues - for example about what data are collected, and how they are analysed, utilised and presented.

29. We recognise there is unlikely to be consensus on every issue, but we invite views on the most appropriate approach to collection and publication of sea-lice data.

Q. What in your view is the most appropriate approach to be taken to the collection and publication of sea-lice data?

Surveillance, Biosecurity, Mortality and Disease Data

30. In light of recent changes in aquatic animal health regulation through the introduction of European Directive 2006/88/EC and the Aquatic Animal Health (Scotland) Regulations 2009 (SSI 2009/85), routine aquatic animal health surveillance has evolved from active/targeted to a risk based approach. Both intelligence and passive surveillance are necessary components to supplement aquatic animal health surveillance in Scotland and have value in assisting with the early detection of notifiable and emerging diseases.

31. We believe it is desirable, to facilitate intelligence and passive led surveillance, that additional data and information from fish farms need to be made available to Marine Scotland. The data requirements would apply to all authorised aquaculture production businesses ( APBs). The table below sets out the types of data and information we envisage is needed, and the rationale for these requirements. Again, we would propose sanctions for non-compliance or for providing false or misleading information.

Requirement

Rationale

1. Mortality data

Improved response time to mortality events; facilitates passive surveillance and the rapid detection of notifiable and emerging disease; allows monitoring of any problem on site closer to real time; alerts Marine Scotland to problems/issues as they emerge and develop.

Additional data requirements could be delivered in a variety of ways. We suggest two key options:

1. The recommendation from the Healthier Fish Working Group http://www.scotland.gov.uk/Resource/Doc/1062/0103264.pdf is that Marine Scotland should be informed of extraordinary mortality events. This reporting would be site specific and would take two forms: a) a weekly site mortality outwith a specified maximum; b) a rolling 5 week site mortality outwith a specified maximum. Reporting maxima would be lifecycle specific and apply to a site 6 weeks after its original stocking. Farmers would report only by exception ( i.e. unless a report is submitted it is deemed that the site has a weekly mortality and rolling 5 week mortality below required reporting triggers).

The mortality maxima would be:

- Fish under 750g: 1.5% (weekly), 6% (rolling 5 weeks);

- Fish 750g+: 1% (weekly), 4% (rolling 5 weeks).

These figures were established for marine salmon. Reporting thresholds would be established for other stages and species.

2. Reporting all mortality on a regular (for example, weekly) basis. This goes further than the Healthier Fish Working Group recommendations that mortality events above specified thresholds should be reported to Marine Scotland.

2. Movement record data

Used to direct investigation and contain notifiable disease through identification of contact sites and application of movement controls; to facilitate epizootic investigations in response to outbreaks of notifiable or emerging disease; to facilitate annual update of risk-based surveillance assessment.

3. The results of external surveillance

Facilitates decision-making in response to increased mortality; offers the potential for quicker detection of emerging disease and trends in the industry in terms of clinical/post-mortem observations and histopathology. Marine Scotland already has powers to examine the results of external fish health surveillance during a site visit. What is envisaged here is the automatic submission of this information, or the ability to call it in on request. This would also provide additional information when faced with disease outbreaks - assisting in epidemiological investigations without the need to visit sites to collect the information.

4. Treatment notification

The Healthier Fish Working Group

http://www.scotland.gov.uk/Resource/Doc/1062/0103264.pdf recommended that successive delousing efficacy failures should require a mandatory notification to Marine Scotland. Failure is defined as 2 successive treatment efficacies of less than 50% removal of Lepeophtheirus salmonis (Leps, at all stages).

In addition, a record of treatments made to control sea-lice is important for strategic research, for example in the validation of hydrodynamic models. Records need not be provided in real time but could be provided, for example, on an annual basis when requested.

5. Fish farm production data

Currently provided on a voluntary basis but a statutory requirement could increase efficiency of the scheme.

It would also enable new types of data to be collected, including the numbers of fish present at each farm, which are required for sea-lice research and the advice provided to Government from that. It would enable sea-lice numbers to be better estimated.

32. There remains the question of the timing and frequency of data provision. Some of the data are of use periodically (for example, annually) or when called in for a particular need (such as notifiable disease investigation). Other data will be of more use closer to "real time", giving greater scope for issues and the need for any remedial action to be identified at an early stage. However, the submission of very frequent and large volumes of data could place large burdens on both industry and regulators (who need to be able to analyse and act upon it, in addition to other tasks).

33. Further discussion and consideration of the most appropriate approach - including more detailed arrangements for the submission of data - is required. We believe it is likely that some of the data we envisage being required are already being maintained by businesses, whose records may facilitate easy transfer and sharing with the appropriate regulators. We welcome views on these issues.

Q Do you agree that aquaculture businesses ought to be required to provide additional information on fish mortality, movements, disease, treatment and production as set out above?

Q What are your views on the timing and frequency of submission of such data?

Biomass Control

34. As more data emerge it is possible they may highlight particular management issues on particular sites or in particular Management Areas. In such an eventuality we believe Scottish Ministers (through Marine Scotland Science) should have the power to require SEPA to reduce on a temporary or permanent basis the limit on biomass in the site licence (the total allowable volume of salmon on the site) for the farm in question.

35. This will have the effect of creating a link between the licensed biomass for a site and the required volume of therapeutant and/or the successful management of sea-lice. The absence of information available to regulators at the moment means that we do not know the implications of current practice whereby a site may in certain circumstances be licensed to hold a large tonnage of salmon, but only to use a small amount of therapeutant. This may mean that treatments may be ineffective and/or that operators may be tempted to consider inappropriate approaches to managing sea-lice, with associated fish health, environmental and reputational risk.

36. While SEPA already has powers to reduce a biomass consent, it can only do so in circumstances that are consistent with its role as environmental regulator. We want the ability to take action based on a wider marine management perspective and this proposal would constitute an additional power with the aim of improving sea-lice control.

Q Do you agree that Scottish Ministers should have powers to require SEPA to reduce a biomass consent where it appears to them necessary and appropriate - for example to address concerns about fish health and welfare?

Wellboats

37. Wellboats are a key component in aquaculture operations at an international scale, but also a significant potential vector for parasite and disease and other biota transfer over large distances. They were implicated in the spread of Infectious Salmon Anaemia ( ISA) in the 1998/99 outbreak in Scotland and the Code aims to address many of the risks. The issue is one of the areas for mutual consideration and co-operation in taking forward our Memorandum of Understanding with Norwegian counterparts to help raise standards of biosecurity, and to improve monitoring of fish movements by wellboat and wellboat/discharging activities within and across national boundaries.

38. Annex 10 of the Code provides guidance on minimising risks in wellboat operations. While this provides a foundation, we believe we need to consider going further to ensure adequacy of regulation and controls. Further consideration and discussion is needed on the detail of such controls, but we envisage enabling powers for Ministers to require such provisions as:

  • satellite monitoring of wellboat movements (as for fishing vessels);
  • additional controls on discharges, whether at sea or to land (for example, with related lice filtration/destruction requirements);
  • remote monitoring of wellboat activity, including fish movements/discharges;
  • additional information/controls on movements of fish.

39. The costs, benefits and practicalities of additional measures would need to be carefully assessed. As an interim step we would propose to make enabling legislation, to allow Scottish Ministers to provide for control requirements on wellboats through secondary legislation.

Q Do you agree we should make enabling legislation giving Scottish Ministers powers to place additional control requirements on wellboats?

Processing Facilities

40. Some concerns have also been raised with us about the possibility of, for example, spread of lice or pathogens through discharges associated with processing plants, either directly from the plant or from associated transportation vehicles and vessels. Where fish may have been brought in from outside the local area for processing, this could undermine otherwise effective local Farm Management Agreement/Management Area practices and controls.

41. There are existing controls and it may be that some of them could be better utilised to help address any such concerns (at least in part). But it may be more appropriate and safer to seek specific additional powers for Ministers - for example to insist on arrangements for filtration of lice, or other treatments, to minimise potential harm from discharges. Powers already exist to ensure biosecure operation at primary processing plants where there are issues around notifiable diseases which are being eradicated. This would constitute an extension of those arrangements.

Q Do you think Scottish Ministers should be given additional powers to place controls on processing plants?

Seaweed Cultivation

42. A few small-scale seaweed cultivation sites have recently been established in Scotland. The product from these seaweed farms is likely to be used in a number of ways, including for food, animal feed, nutraceuticals (food products that provide health and medical benefits), extra co-digest for aerobic digestion plants (which create biogas for energy), and fertilisers. This sector is expected to grow along with integrated multi-trophic aquaculture, where the by-products from one species are recycled to become inputs for another ( e.g. finfish aquaculture can be combined with seaweed or shellfish). Large scale offshore cultivation for the primary production of biofuels is currently limited by feasibility and economic considerations and we believe is therefore unlikely to develop in the near future. Overall, however, we expect the seaweed cultivation sector to grow as product demand increases and as integrated multi-trophic aquaculture benefits are realised.

43. We are progressing a Strategic Environmental Assessment ( SEA) to identify environmental interactions and inform a sector framework. It is not yet clear what this will show - for example whether environmental impact is beneficial, low or nil, or may depend on location. There may also be differences currently in how seaweed farms are regulated - depending on whether the site is new, or has been previously farmed for mussels and appropriate equipment is already in the water.

44. We believe that we should take the legislative opportunity to provide for appropriate regulation of seaweed farming, including ensuring that all plans to farm seaweed are regulated in the same manner. We believe the most effective way to do this is would be to regulate seaweed farming through Marine Licensing arrangements set out in the Marine (Scotland) Act 2010.

Q Do you agree that the regulatory framework should be the same for all seaweed farms?

Q Do you agree that the most appropriate approach to regulation of this sector would be through marine licensing? If not, what alternative arrangements would you suggest?

Commercially Damaging Species

45. A 'commercially damaging species' in this context means one which may displace or prejudice the commercial production of traditionally farmed species, with associated costs for remediation, but which itself has no commercial value.

46. While stringent controls exist in legislation in relation to notifiable and emerging diseases affecting aquaculture, as well as controls on invasive non-native species in wider environment legislation, existing controls on potentially commercially damaging native species are not comprehensive. For example, a recent project ' Mytilus trossulus: Managing impact on sustainable mussel production in Scotland' considered the issue of statutory powers to control movements of mussels and determined that there is currently nothing on the statute books that could be applied to that species.

47. We think it important to close that loophole. If a commercially damaging native species becomes a significant concern, we suggest it would be useful to have a possible range of control measures, such as:

  • power to prevent movement of the species, movement of other species or equipment from the same site/area. This could include the use of "stop notices";
  • power to define or specify in subordinate legislation what constitutes a commercially damaging species;
  • powers to require notification if specified species or suspected species are found at an aquaculture site;
  • power to require a company or individual to undertake particular control action, or to permit access by others to undertake the specified action;
  • power for authorised officers ( e.g. Fish Health Inspectors) to look for the specified species when carrying out inspections;
  • requirements for molecular analysis and a surveillance programme if stock movements are going to occur in areas where the specified species is known or suspected to be present.

Q Do you agree that we should provide for additional powers for Scottish Ministers in relation to commercially damaging native species?