Publication - Progress report

Aquaculture - Acoustic Deterrent Device (ADD) use: parliamentary report

Published: 1 Mar 2021

Report to the Scottish Parliament on the use of acoustic deterrent devices by the Scottish aquaculture sector at finfish farms as required by section 15 of the Animals and Wildlife (Penalties, Protection and Powers) (Scotland) Act 2020.

Aquaculture - Acoustic Deterrent Device (ADD) use: parliamentary report
Chapter 5. Sufficiency of the current regulatory and legislative framework for marine mammals in relation to the use of acoustic deterrents in the aquaculture sector

Chapter 5. Sufficiency of the current regulatory and legislative framework for marine mammals in relation to the use of acoustic deterrents in the aquaculture sector

1. Introduction

The Scottish Government is committed to ensuring protection for marine mammals. The Marine (Scotland) Act 2010 was an important landmark for seal conservation in Scotland and the Conservation (Natural Habitats, &c.) Regulations 1994 provides robust protection for cetaceans from deliberate and reckless disturbance in the Scottish marine area, together with other protections.

However, stakeholders involved in the conservation and protection of marine mammals have raised concerns about the regulation and management of the use of ADDs at finfish farms, arguing that their widespread use is resulting in disturbance and potential injury to non-target species, particularly cetaceans which are European Protected Species (EPS).

This section explores the current regulatory framework relating to the protection of marine mammals both domestically and internationally (where applicable) to examine whether the legislation and underpinning processes are sufficient to address the impacts of ADD use in aquaculture on seals and cetaceans. It will also consider wider licensing requirements where relevant, and legislative measures in relation to the protection of farmed fish. Where further measures could be beneficial these will be outlined.

2. Regulatory and legislative framework for the protection of marine mammals (species and site protection)

Marine mammals in the Scottish marine area are provided with protection through measures specific to the species, site-based measures and wider seas measures under a series of regulatory and legislative provisions. A number of key pieces of legislation pertaining to marine mammals should therefore be examined when considering the use of ADDs by the aquaculture sector and the potential for impacts on marine mammals. A summary of the legislation in relation to the impact of ADD use on cetaceans and seals is provided in Table 5.1.

Species Protection

The Conservation (Natural Habitats, &c.) Regulations 1994 (as amended) (the "Habitat Regulations") apply in Scotland, including in the Scottish marine area (out to 12 nautical miles (nm)) and include protections for cetaceans.Animals listed in Schedule 2 of the Habitats Regulations whose natural range includes any part of the UK are known as European Protected Species (EPS) in need of strict protection. All cetacean species are EPS, and under regulation 39(1) and (2), it is an offence to deliberately or recklessly capture, injure, kill or harass a wild animal of EPS, and deliberately or recklessly disturb any dolphin, porpoise or whale (cetacean). Table 5.1 provides an overview of the key offences in relation to cetaceans.

The Scottish Government has published guidance in relation to the protection of marine EPS from injury and disturbance in Scottish inshore waters (July 2020).[5] This guidance provides advice to marine users undertaking activities in the marine environment which have the potential to deliberately or recklessly kill, injure or disturb a marine EPS. The guidance can also be used by regulators, nature conservation agencies, enforcement authorities and competent authorities when considering whether an activity will cause deliberate or reckless injury or disturbance to a marine EPS.

Under regulation 44 of the Habitat Regulations, certain activities which would normally constitute an offence against EPS may be permitted to be carried out under a licence granted by the appropriate authority.[6] When considering an activity that could potentially result in an offence being committed in respect of an EPS, consideration should be given as to whether the impact can be fully or partially mitigated, therefore removing the need for a licence. However, where this cannot be partially or fully mitigated, a licence will be required.

A licence may only be granted provided that: (a) the proposed activity falls within one of the licensable purposes listed in regulation 44(2);(b) there must be no satisfactory alternative(s); and (c) the action(s) authorised must not be detrimental to the maintenance of the population of the species concerned at favourable conservation status in their natural range. An application for a licence will fail unless all of these three tests are met. A licence granted may include a requirement for mitigation aimed at minimising potential impacts to species listed on the licence application. Adherence to mitigation measures can form a condition of the licence, with licence holders responsible for ensuring compliance with any conditions.

It is ultimately the responsibility of the person(s) carrying out an activity to determine if an EPS licence is required, and to seek the licence from the appropriate authority. In practice, the need for an EPS licence is often identified during existing licensing processes, for example, through marine licences which are required for certain activities carried out in Scottish waters. However, some activities are either licensed by other regulators (e.g., consent for finfish farming is granted by the local planning authority)[7] or have no over-arching licensing mechanism. In these situations, EPS applications may be received directly to the Scottish Government.

Part 6 (Conservation of Seals) of the Marine (Scotland) Act 2010 provides for the protection of seals by making it an offence under section 107 to kill, injure or take a live seal, intentionally or recklessly. Exceptions to these offences are for the purpose of alleviating suffering (under section 108) or under licence (in accordance with section 109), although both of these exceptions include rigorous reporting requirements. Licences may be granted by Scottish Ministers authorising the taking or killing of seals in certain limited circumstances, as provided in section 110. Amendments to the Marine (Scotland) Act 2010 which came into force on 1 February 2021 removed two licensing grounds which had previously applied in relation to the protection of the health and welfare of farmed fish and prevention of serious damage to fisheries and finfish farms.

Section 117 of the Act also provides for additional protection for seals from reckless and intentional harassment when they are hauled up on land at designated haul-out sites. A total of 195 sites have been designated as haul-out sites for both harbour and grey seals around Scotland's coast, with these covering significant harbour and grey seal haul-out sites and significant grey seal breeding colonies identified using a standard methodology.[8] Due consideration should be given to activities that have the potential to negatively affect seals at designated haul-out sites as part of the initial assessment process. The Scottish Government has published guidance on the offence of harassment at seal haul-out sites.[9] In addition, conservation areas are established for seals and these should be taken into account when considering activities that could result in an offence under the Marine (Scotland) Act 2010. Table 5.1 provides the key offences in this regard in relation to seals.

Table 5.1. Summary of offences in relation to seals and cetaceans
Regulation Offences in Scotland for seals and cetaceans
The Conservation (Natural Habitats, &c.) Regulations 1994 (as amended) Cetaceans Under regulation 39 (1) of the Habitat Regulations it is an offence to deliberately or recklessly:
  • capture, injure or kill an animal which is an EPS;
  • harass a wild animal or group of animals which is an EPS;
  • disturb such an animal while it is occupying a structure or place used for shelter or protection;
  • disturb such an animal while it is rearing or otherwise caring for its young;
  • obstruct access to a breeding site or resting place, or otherwise deny an animal use of a breeding site or resting place;
  • disturb such an animal in a manner or in circumstances likely to significantly affect the local distribution or abundance of the species;
  • disturb such an animal in a manner or in circumstances likely to impair its ability to survive, breed or reproduce, or rear or otherwise care for its young;
  • disturb such an animal while it is migrating or hibernating;
Regulation 39(2) makes it an offence to deliberately or recklessly disturb any dolphin, porpoise or whale (cetacean).
Part 6 (Conservation of Seals) of the Marine (Scotland) Act 2010 Seals Under section 107 of the Marine (Scotland) Act 2010 it is an offence to intentionally or recklessly kill, injure or take a live seal at any time. The only exceptions are to alleviate suffering (section 108) and under licence (section 109). It is also an offence under section 117 to intentionally or recklessly harass a seal at a haul-out site as designated by the Scottish Ministers. The Protection of Seals (Designation of Seal Haul-out Sites) (Scotland) Order 2014 designated such haul-out sites.

Site Protection

A network of well-managed marine protected areas (MPAs) has been established to meet national objectives to help to deliver a coherent MPA network, contributing to the protection and enhancement of the Scottish marine area. The network for marine mammals specifically comprises MPAs and European sites, which make a significant contribution to the protection, enhancement and health of the Scottish marine area.

Sites designated as Special Areas of Conservation (SACs) and Special Protection Areas (SPAs) make up the Natura 2000 network of protected areas and are defined as European Marine Sites. SACs have been designated for a range of species and habitats, including harbour and grey seals, harbour porpoise and bottlenose dolphins, and are given legal protection by the Habitats Regulations.

Regulation 48 of the Habitats Regulations requires that any plan or project which is not directly connected with or necessary to the management of a European site, but which would be likely to have a significant effect on such a site, either individually or in combination with other plans and projects, shall be the subject of an appropriate assessment (AA) of its impacts, in view of the site's conservation objectives. Habitats Regulations Appraisal (HRA) is a rigorous, precautionary procedure that examines the potential negative effects on European sites resulting from a plan or project, and is designed – with the precautionary principle at its core - to ensure the protection of European sites against plans and projects that may harm their integrity. Any plan or project should therefore only be authorised where an AA has concluded that it will not adversely affect the integrity of a European site.

It is for the competent authority to determine whether a plan or project is likely to have significant effects (LSE) on the European site, usually on the basis of advice from NatureScot. A competent authority must not authorise a plan or project unless it can show that the plan or project will not adversely affect the integrity of a European site. The competent authority must decide whether there is enough evidence to conclude that the proposals won't have adverse effects on a site's integrity.

A derogation is available for authorities to approve plans or projects which could adversely affect the integrity of a Natura site if: (1) there are no alternative solutions, (2) there are imperative reasons of overriding public interest, including those of a social or economic nature, and (3) compensatory measures are provided to ensure that the overall coherence of the Natura network is protected. If an authority wishes to use this derogation, Scottish Ministers must be notified.

Proposed SACs are afforded the same level of protection (i.e., sites which have been approved by Scottish Ministers for formal consultation but which have not yet been designated) as are sites which have been designated. Text box 1 provides examples of the manner in which ADDs have been considered in relation to the Habitats Regulations.

Marine Protected Areas (MPAs) are sites designated under Part 5 of the Marine (Scotland) Act 2010 in the Scottish marine area (within 12 nm) and Part 5 of the Marine and Coastal Access Act 2009 in the Scottish offshore region (beyond 12 nm) (collectively referred to as the "Marine Acts") to protect features of importance to Scotland. There is duty in the Marine Acts to contribute to an ecologically coherent network of sites. MPAs are identified according to guidelines on the selection and development of the MPA network. In 2020, three sites were designated for the protection of cetaceans, the Sea of the Hebrides and Southern Trench MPAs for minke whale and the North-east Lewis MPA for Risso's dolphin. MPAs have stated conservation objectives, developed by nature conservation advisors, NatureScot.

The Marine Acts place a duty on regulators to ensure that there is no significant risk of hindering the achievement of the conservation objectives of an MPA before giving consent to an activity. Public authorities may consult with NatureScot if they believe there is a risk of the activity affecting a protected feature of an MPA, other than insignificantly. In order to assist public authorities in making these decisions, NatureScot develops management advice for each site.

In the case of MPAs protecting cetaceans, the conservation objectives are to maintain the protected features in favourable condition. Therefore, in general, public authorities must not authorise any activity which NatureScot advise may hinder the achievement of these objectives. A public authority may authorise an activity which causes a risk to the achievement of the conservation objectives if it is satisfied that there is no alternative option with a lower impact, the benefit to the public outweighs the potential damage and arrangements will be made for measures of equivalent environmental benefit.

The three MPAs protecting cetaceans were designated on 3 December 2020. As these three sites have been newly created, the consideration of these sites in decision making has not yet had the opportunity to become well established. However, the process by which public authorities regulating the use of ADDs should consider the use of these devices in consultation with NatureScot is already in place.

Wider seas measures

The Marine Strategy Regulations 2010 set out a framework for assessing, monitoring and taking action across UK waters to achieve the vision for clean, healthy, safe, productive and biologically diverse seas. It requires the production of a Strategy to ensure that action is taken to achieve or maintain Good Environmental Status (GES). The Strategy consists of three components – Part 1: an assessment of marine waters, objectives for GES and targets and indicators to measure progress towards GES; Part 2: a monitoring programme to monitor progress against the targets and indicators; and Part 3: a programme of measures for achieving GES. These are reviewed and updated on a six yearly cycle.

To help assess progress made in achieving GES, 11 qualitative descriptors are defined in the Strategy, including Descriptor 1 Biological diversity (including seals and cetaceans) and Descriptor 11 – Introduction of energy, including underwater noise. The high level objections for each of these descriptors are in Table 5.2.

The third part of the Strategy, the programme of measures, which sets out actions the UK is taking to achieve GES across all descriptors, including in relation to seals, cetaceans and underwater noise, is currently being updated and is due for publication in 2021.

Table 5.2. Marine Strategy Descriptors and high level objectives for GES
Descriptor High level objective for GES
Underwater Noise Loud, low and mid frequency impulsive sounds and continuous low frequency sounds introduced into the marine environment through human activities are managed to the extent that they do not have adverse effects on marine ecosystems and animals at the population level.
Seals The population abundance and demography of seals indicate healthy populations that are not significantly affected by human activities.
Cetaceans The population abundance of cetaceans indicates healthy populations that are not significantly affected by human activities.

Published in 2015, the National Marine Plan[10] sets out the way in which Scottish Ministers intend marine resources to be used and managed in a sustainable manner across all of Scotland's seas (out to 200 nm). It adopts sustainable development as its guiding principle and application of its policies ensure that consented development or activity can be regarded as sustainable. General policies are included in relation to natural heritage (GEN 9) and noise (GEN 13).

3. Planning requirements

In addition to the legislative provisions already discussed, certain activities in the marine environment will require a licence or consent before they can be carried out in Scotland's seas. Such activities include aquaculture and the planning aspects should therefore be considered when assessing the regulatory framework for the use of ADDs by the aquaculture sector.

Town and Country Planning (Scotland) Act 1997 (as amended)

The principal planning Act in force in Scotland is the Town and Country Planning (Scotland) Act 1997. Amendments made by the Water Environment and Water Services (Scotland) Act 2003, and by the Planning etc. (Scotland) Act 2006, together with related subordinate legislation including the Town and Country Planning (Marine Fish Farming) (Scotland) Order 2007, brought marine aquaculture under planning control from 1 April 2007, subject to certain transitional arrangements. This requires all new developments and the majority of modifications to existing developments to have planning permission from the relevant planning authority.

Applications for most finfish farms require screening to determine whether assessment is required under the Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017 (as amended). The EIA process is intended to improve environmental protection, and informs the decision making processes by the planning authorities to determine whether certain projects should go ahead. Under these Regulations, a planning authority cannot grant planning permission for development unless they have first established and taken into account the LSE of the development on the environment[11]. HRA are also a rigorous requirement of the process, and where required, the HRA and EIA assessments must be co-ordinated.

Application of the Town and Country Planning Act in relation to the use of ADDs at finfish farms

In accordance with section 26 of the Town and Country Planning (Scotland) Act, the placing or assembly of any equipment in marine waters for the purposes of fish farming, and any material change of use of such equipment, constitutes development requiring planning permission. Most planning authorities consider ADDs deployed at finfish farms to be classed as equipment under these regulations, and their installation is an important consideration in the planning process. However, it is worth noting that in the past, in some instances ADDs were considered a part of the equipment set-up that, in some circumstances, could be changed or added to finfish farms as non-material variations, which were not recorded within the planning process.

Where proposed, ADDs form a component of the predator control measures, which are submitted by the applicant as part of their planning application. NatureScot as the relevant statutory consultee advises the planning authority on proposed predator control measures and potential interactions with wildlife at the relevant stages of the planning process. The planning authority considers this advice in reaching a decision on the application and any associated advisory notes or planning conditions.

There is a level of variation between planning authorities regarding the manner in which ADDs are considered and dealt with through the planning process. Some aspects of this can be explained by the presence of nature conservation designations, while in other cases it is a response to local procedures and practices in place.In summary:

  • The planning process allows for a degree of management and regulation of ADDs, but there are variations in approach across planning authorities, based on different factors. For example, some authorities include specific conditions on the planning consent regulating the use of ADDs (e.g., adherence to deployment plans within SACs to avoid any LSE on the European site, no ADDs permitted in key areas, or only specific devices permitted) while others include no specific conditions.
  • Advances are being made by some planning authorities through the development of ADD deployment plans regarding ADD use. However, these are still relatively recent initiatives and are generally applied to developments within, or adjacent to, European sites.
  • There is uncertainty about whether the information on ADD use provided in the planning application reflects the current usage as there is no requirement to report on changes in predator control measures unless specifically stated in the planning consent, unless such changes are considered to constitute further development. This may be an issue for developments that have not been subject to the planning process for a period of time.
  • There is limited resource and expertise within planning authorities to enforce conditions where they are applied and the planning process is not well suited to the day-to-day management of fish farm practices.

Whilst local authorities, following the transferral of responsibility for marine aquaculture developments, take on the role of planning authority for any new and modified fish farm developments, the Scottish Government on behalf of Scottish Ministers is also responsible for issuing planning consent for the operation of finfish and shellfish farm developments which pre-date the application of the planning regime. These consents include standard conditions agreed with the local authority.[12]

4. Wider legislative considerations

In addition to the species, site and wider sea based measures outlined above, there are other domestic and international provisions that have consequences in relation to the use of ADDs at finfish farms. The most relevant to the use of ADDs at Scottish finfish farms are considered in this section.

The US Marine Mammal Protection Act 1972

The US Marine Mammal Protection Act 1972 (as amended) (MMPA) provides protection to marine mammals in US waters by prohibiting, with certain exceptions, the "taking'" of marine mammals, where the terms "taking" means "to harass, hunt, capture, or kill, or to attempt to harass, hunt, capture or kill any marine mammal" (as per MMPA, section 3(13).[13]

The US has introduced provisions into the MMPA to address the incidental mortality and serious injury of marine mammals in both domestic and foreign commercial fisheries with the intention to reduce it to insignificant levels approaching zero mortality and serious injury rate. These US provisions require countries exporting commercial fish and fish products to the US to be held to the same standards as US commercial fisheries. Consequently, any fishery whose operations result in the killing or serious injury of marine mammals in excess of US standards or caught in a manner not permitted under US rules, will not be allowed to export to the US after 1 January 2023.

To meet these US import restrictions, exporting nations must demonstrate that they have prohibited the intentional mortality and serious injury of marine mammals in commercial fisheries, and that for those fisheries which have a higher than remote likelihood of mortality or serious injury, that there is a regulatory programme in place which is comparable in effectiveness to the equivalent US regulatory programme.

Deterrence measures

Under section 104(a)(4) of the MMPA, deterrence measures may be permitted in certain circumstances, "so long as such measures do not result in the death or serious injury of a marine mammal." Such measures include action taken by owners or employees of fishing gear or catch in order "to deter a marine mammal from damaging the gear or catch" or by owners/employees of private property in order "to deter a marine mammal from damaging private property."

However, only specific measures may be used to deter marine mammals, with section 101(a)(4) of the MMPA obliging the US Secretary, following a public process, to publish a list in the US Federal Register "of guidelines for use in safely deterring marine mammals" which is to include recommendations of "specific measures which may be used to non-lethally deter marine mammals." Furthermore, if the US Secretary determines "that certain forms of deterrence have a significant adverse effect on marine mammals," following a public process, the US Secretary may prohibit such deterrence methods.

Implications for Scotland

Where ADDs and other non-lethal measures can result in "significant adverse effects on marine mammals" their use may be prohibited in the US and therefore captured under the MMPA import provisions. To ensure continued access of Scottish fisheries to the US market, there is therefore a need for a regulatory mechanism by which to control ADD use in the aquaculture (and wider fisheries sector where required).

Animal Health and Welfare (Scotland) Act 2006

Part 2 of the Animal Health and Welfare (Scotland) Act 2006 ("2006 Act") promotes the welfare of animals and makes it an offence to cause a protected animal unnecessary suffering or to fail to take reasonable steps to ensure the welfare of animals for which a person is responsible (duty of care). The Scottish Government has issued guidance on the animal welfare provisions in Part 2 of the 2006 Act.[14]

Sections 16 and 17 of the 2006 Act establish a definition for "protected animals" and the conditions that they need to satisfy to meet the criteria. Farmed fish are protected animals under the 2006 Act as they are under control of man. Section 18 of the 2006 Act also distinguishes the duties of the person(s) who are responsible for the animal, although this responsibility can be shared by another person who is in charge of the animal. An example of shared responsibility is where a livestock owner employs a livestock manager. The owner has responsibility to ensure that the person employed is competent and knowledgeable about the livestock under his or her control.

Unnecessary suffering

Section 19 of the 2006 Act contains offences in relation to unnecessary suffering of a protected animal. Unnecessary suffering may be caused by taking action which causes unnecessary suffering, or by failing to take steps to prevent unnecessary suffering.

It is an offence for any person, by an act, to cause unnecessary (physical or mental) suffering to a protected animal where the person committing the act knew or ought reasonably to have known, that the act would cause, or would be likely to cause, suffering. In addition, where a person is responsible for an animal, an offence would be committed if unnecessary suffering was caused to the animal by their act or omission, or if they permitted it to occur or failed to take such steps as are reasonable in the circumstances to prevent it happening.

Furthermore, when determining whether suffering is unnecessary, a number of factors need to be taken into consideration. These include whether the suffering could reasonably have been avoided or reduced; compliance with any relevant enactment, licence or code of practice issued on a statutory basis; the purpose of the conduct; the proportionality of the suffering to the purpose; and whether the conduct was that of a reasonably competent and humane person.

Ensuring the welfare of animals

Under section 24 of the 2006 Act, a person commits an offence if "the person does not take such steps as are reasonable in the circumstances to ensure that the needs of an animal for which the person is responsible are met." Section 24(3) defines the needs of the animal, which include "its need to be protected from suffering, injury and disease."

Ultimately, where a person is responsible for an animal, they have a positive duty to do all that is reasonable in all the circumstances to ensure that needs of the animal are met to the extent required by good practice.

Summary and application in relation to ADDs

As described above, offences under sections 19 and 24 of the 2006 Act generally apply to farmed fish which are protected animals under the 2006 Act. As a result, finfish farm operators must ensure that they protect the welfare of farmed fish in relation to their anti-predator measures.

ADDs are considered one of the few practical ways that the sector uses to keep seals away from approaching cages and therefore meeting their duty of care to ensure the welfare of their farmed fish by reducing apparent stress and any associated consequences (i.e., reduction in growth rate and tolerance to disease) which can have significant implications for the health and welfare of farmed fish.

5. Summary of the sufficiency of the regulatory and legal frameworks in relation to the protection of marine mammals

This section considers the sufficiency of the current regulatory framework relating to the protection of marine mammals to examine whether the legislation and underpinning processes are sufficient to address the impacts of ADD use in aquaculture on seals and cetaceans. Where improvements can be made to existing measures, these will be outlined.

Marine mammal protection provisions

The existing legal and regulatory framework, as laid out in sections 2 to 4 of this chapter, collectively provide a high level of individual and site-based protection measures for marine mammals in Scottish waters.

The Habitats Regulations afford a high level of strict protection for all cetaceans by prohibiting their deliberate or reckless capture, injury, disturbance and killing, while seals are protected through the Marine (Scotland) Act 2010 from intentional or reckless injury, taking and killing. There are only limited exceptions to these offences including for the purpose of alleviating suffering and under strict licensing provisions and there are significant penalties associated with harming them in line with the most serious wildlife offences.

These species protection measures are further enhanced through site based measures (e.g., MPAs, European sites, designated seal-haul outs) for certain species. Under these measures rigorous, precautionary processes are in place to ensure that marine activities do not result in significant effects on sites which are designated for these species, and that actions can be taken where required. These activities include aquaculture developments (where ADDs may be proposed as a predator measure) and are proportionate with the principles of the National Marine Plan.

The current regulatory framework for marine mammals as delivered through the Marine (Scotland) Act 2010 and Habitats Regulations therefore provides a wide-ranging level of protection for marine mammals in Scotland. Table 5.3 provides a summary of the regulatory framework and its sufficiency.

Measures to manage ADD use at finfish farms

Under the Marine (Scotland) Act 2010, Scottish Ministers are responsible for marine licensing and enforcement in the Scottish marine area, with specific activities requiring a marine licence under Part 4 of the Act before they can be conducted. As part of this process, activities that have the potential to result in offences to marine mammals or designated areas are identified and actioned accordingly. However, deposits in the sea (as defined in the 2010 Act) in the course of cultivation and propagation of fish can be exempt from requiring a marine licence under certain circumstances, for example where they do not pose a risk to navigation. As a result, whilst marine licences are issued for marine farms, such licences are confined to navigational controls and, therefore, environmental effects are wholly regulated through the planning process either by the local planning authority or by the Scottish Government.

ADDs deployed at finfish farms are generally classed as equipment under planning regulations, and their installation is therefore an important consideration in the planning process. There is however, a level of variation between planning authorities as to the manner in which ADDs are considered and dealt with through the planning process, which is set up to deal with the development itself. Some of this variation can be explained by the presence of nature conservation designations, while in other cases it is a response to local procedures and practices in place.

Furthermore, where conditions are placed on planning consents in relation to ADD use, there may be resource and technical limitations in terms of monitoring compliance. The planning process is also limited to consideration of new or modified finfish farm developments and not for older developments where ADD use may not be recorded within the planning process. So while the planning process allows for some management and regulation of ADDs, there is a level of variation in how this approach is considered across planning authorities based on different factors.

In addition to planning regulation, the Habitats Regulations provide for a robust process by which activities that have the potential to result in an offence to an EPS (in this case cetaceans) that cannot be partially or fully mitigated, can only be carried out legally under a licence granted by the appropriate authority.

Conclusions

This report has noted that a level of variation exists as to the manner in which local planning regulations are applied in relation to the use of ADDs. It has also noted the comparability requirements of the US MMPA which have yet to be finalised by the US administration. In light of this Scottish Ministers will now consider the requirement for additional measures on the use of ADDs at finfish farms that may be needed in light of local variation and the MMPA legislation once finalised, and which can be applied consistently across all sites. Any requirement for additional measures would be consulted on later in 2021.

Table 5.3. Summary of the sufficiency of the current regulatory framework for marine mammals in relation to ADD use.
Regulation Sufficiency of provisions for marine mammals
Species Protection
Habitat Regulations (European Protected Species licensing) The Conservation (Natural Habitats, &c.) Regulations 1994 (the Habitats Regulations) provide a high level of protection to cetaceans in Scottish waters. These regulations prohibit the deliberate and reckless capture, injury disturbance and killing of EPS and set out the legal process for considering licences to dis-apply an offence. The Habitat Regulations also go beyond the specific provisions in the Habitats Directive in terms of widening the offence of disturbance in relation to cetaceans. It is ultimately the responsibility of the person(s) carrying out an activity to determine whether their activity could result in an offence under the regulations and to consider their actions accordingly (including seeking a licence from the appropriate authority). Since this can often be difficult for marine users or managers to interpret, guidance has been issued by the Scottish Government and the European Commission. In practice however, the need for an EPS licence is often identified during existing licensing processes. However, this is not always the case and some activities are either licensed by other regulators or have no over-arching licensing mechanism. With action taken by the Scottish Government in relation to the Habitats Regulations and ADD use at finfish farms, the approach taken for EPS is proportionate to the consideration of other activities in the marine environment which have the potential to result in potential offences to marine mammals. Factors to note:
  • Activity is not always identified during existing licensing processes, therefore the onus is on marine users to determine the requirement.
Part 6 (Conservation of Seals), Marine (Scotland) Act 2010 The Marine (Scotland) Act 2010 provides for a high level of protection to seals. It prohibits the intentional and reckless taking, injury and killing of seals, with limited exceptions in which seals can be taken or killed for the purpose of alleviating suffering or in certain circumstances under licence. The Act also provides protection to seals at designated haul-out sites when they can be particularly vulnerable to harassment. These haul-out sites cover the areas where the greatest proportion of seals are hauled out. In the case of marine activities (including aquaculture development), their potential to adversely affect a designated seal haul-out site is considered as part of the planning process.
Site-based protection
Habitats Regulations (European Marine Sites) Regulation 48 of the Habitats Regulations provides a rigorous, precautionary procedure for examining the potential negative effects on European sites resulting from a plan or project, and is designed to ensure the protection of European sites against plans and projects that may harm their integrity. This includes some consideration of ADD use where their use is determined by NatureScot to have a LSE on a European site. This requirement only applies to new or modified developments, therefore earlier developments may not have been captured through these measures. However, such an approach is proportionate to how other plans or projects are considered through the Habitat Regulations. Factors to note:
  • Covers new or modified developments (and for qualifying species) therefore earlier developments will not be captured through these provisions.
  • ADD use may only be considered by authorities when it is raised as an issue as part of the aquaculture development.
Marine (Scotland) Act 2010 - Marine Protected Areas Public authorities have a duty to ensure that activities they carry out or authorise do not hinder the achievement of the stated conservation objectives. Public authorities may consult with NatureScot if they believe there is a risk of the activity affecting a protected feature of an MPA, other than insignificantly. A public authority may authorise an activity which creates a risk to the achievement of the conservation objectives if it is satisfied that there is no alternative option with a lower impact, the benefit to the public outweighs the potential damage and arrangements will be made for measures of equivalent environmental benefit. The process by which public authorities regulating the use of ADDs should consider the use of the devices in consultation with NatureScot is already in place. Factors to note:
  • Only covers new or modified developments (for qualifying species) therefore earlier developments will not be captured through these provisions.
  • ADD use may only be considered by authorities when it is raised as an issue as part of the aquaculture development.
Wider seas measures
Marine Strategy Provides a framework for assessing, monitoring and taking action across UK waters to achieve or maintain Good Environmental Status (GES). Specific measures are seals and cetaceans (e.g., healthy populations that are not significantly affected by human activities) and marine noise (e.g., impulsive sounds and continuous low frequency sounds introduced into the marine environment through human activities are managed to the extent that they do not have adverse effects on marine ecosystems and animals at the population level).

Contact

Email: Marine_Conservation@gov.scot