- 11 Jan 2021
Date received: 23 Nov 2020
Date responded: 17 Dec 2020
The recently issued guidance document Information Note and Frequently Asked Questions for the Operators of Finfish Farms on the use of Acoustic Deterrent Devices and the Requirement for a European Protected Species Licence (http://marine.gov.scot/data/use-acoustic-deterrent-devicesadd- and-requirement-european-protected-species-licence-eps) requires the operators of marine fish farms to apply for EPS licences if they wish to use ADDs to deter seals.
This document states that "MS-LOT can give consideration to the first two licensing tests (licensable purpose and satisfactory alternatives) in advance of the favourable conservation status test. Therefore, the completed relevant sections of the application forms and relevant annexes should be submitted to MS-LOT by 20th November 2020.”
Please assist me by identifying and supplying electronic copies of all the applications received by MSLOT from aquaculture operators, in consideration of the first two tests (licensable purpose and satisfactory alternatives) for licences to disturb or injure marine European protected species (EPS).
Additionally the Information Note and Frequently Asked Questions for the Operators of Finfish Farms on the use of Acoustic Deterrent Devices and the Requirement for a European Protected Species Licence document states "If, for example, by virtue of the sound levels and frequencies at which they operate, it can be shown that acoustic deterrents (or related systems) cannot disturb cetaceans, then an EPS licence is not required. MS-LOT would expect applicants to provide robust evidence to validate this claim. In practice, the hearing ranges of seals and cetaceans overlap, so there may be limited scope for identification of deterrents to which only seals are sensitive. An appropriate model should be used that considers all relevant environmental parameters. Modelling will be required for a realistic worst case scenario for each fish farm site and cumulatively. Marine Scotland and NatureScot will engage with the fish farm industry and their appointed consultants to provide further advice on the modelling.”
Please supply all documents which relate to the advice given to fish farm operators and their trade associations, on the modelling required to show a realistic worst case scenario for the effect of ADDs at each fish farm site and cumulatively.
As the information you have requested is ‘environmental information’ for the purposes of the Environmental Information (Scotland) Regulations 2004 (EIRs), we are required to deal with your request under those Regulations. We are applying the exemption at section 39 (2) of the Freedom of Information (Scotland) Act 2002 (FOISA), so that we do not also have to deal with your request under FOISA.
This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption, because there is no public interest in dealing with the same request under two different regimes. This is essentially a technical point and has no material effect on the outcome of your request.
1. I enclose a copy of some of the information you requested. By 20 November 2020, MS-LOT had received three preliminary applications, however, the application process is in two stages and the submission of further information is required before these applications are finalised. The applicant will provide this information to MS-LOT in due course. I enclose electronic copies of all three preliminary applications received by MS-LOT from aquaculture operators.
Some of the information supplied to you continues to be protected by the Copyright, Designs and Patents Act 1988. You are free to use it for your own purposes, including any non-commercial research you are doing and for the purposes of news reporting. Any other re-use, for example commercial publication, would require the permission of the copyright holder. Most documents supplied by the Scottish Government will have been produced by government officials and will be Crown Copyright. You can find details on the arrangements for re-using Crown Copyright material on the National Archives website at: http://www.nationalarchives.gov.uk/doc/open-governmentlicence/version/3/
Information you receive which is not subject to Crown Copyright continues to be protected by the copyright of the person, or organization, from which the information originated. You must ensure that you gain their permission before reproducing any third party (non Crown Copyright information).
While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because an exception under regulation 11(2) (personal information of a third party) of the EIRs applies to some of the information you have requested. The reason why this exception applies is explained in the Annex to this letter.
2. Advice on the modelling and approach to cumulative impact assessment (CIA) has recently been shared with the industry (11 December 2020) and an annex has now been added to the Frequently Asked Questions document that you refer to/provide a link to in your information request above. Please revisit the following link to view the updated document titled “Marine Scotland ADD and EPS FAQs”:
Under regulation 6(1)(b) of the EIRs, we do not have to give you information which is already publicly available and easily accessible to you in another form or format.
The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.
Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000
The Scottish Government
St Andrews House