Information

European Protected Species (EPS) licences and Acoustic Deterrent Device (ADD) use: EIR release

Information request and response under the Environmental Information (Scotland) Regulations 2004


Information requested

1. MS currently accept that ADDs cause disturbance and can cause hearing injury. Why did MS not act on the SNH advice in 2017, as per below?

2. MS have extended the deadline for fish farm applications to 15th January. (i) Will MS agree to publish the applications on the website? (ii) If not, could MS explain their reasoning?

3. Does MS hold peer-reviewed studies which conclude that farmed salmon are susceptible to disease because they are stressed by seals close to the cages?

4. Please can MS provide reports commissioned by MS or NatureScot into the efficacy of double nets or stronger single nets as compared with ADDs and single nets?

5. MS officers are ‘accountable to the public for their decisions and actions and must submit themselves to the scrutiny necessary to ensure this’ . If MS intend to grant an EPS license(s) for the use of any ADD or ASD because MS believe the device(s) will pass all three EPS licensing tests, will MS provide a full and detailed explanation of their reasons and delay decisions on those applications to allow sufficient time for public consultation and consideration of input from the public?

6. In deciding whether cetacean species will be maintained at or restored to FCS, how does MS intend to allow for each of the 9 factors listed below?

7. For farms within the Inner Hebrides and Minches SAC appropriate assessments will need to be carried out to meet the requirements of Article 6(3) of the Habitats Directive. It will need to be proven beyond reasonable scientific doubt that the use of ADDs does not negatively affect the integrity of the SAC. The Sweetman case determined that damage to a small part of a site would have a negative impact on site integrity. Does MS agree that ADD(s) which acoustically restrict a sound used for migration would negatively impact the integrity of the SAC?

8. Given recent evidence in studies by Kok, Mikklesen and Brandt that porpoise is disturbed at around 100dB and displaced at 113dB, and the need under Scottish legislation to apply the precautionary principle, do MS agree that 120dB is not sufficiently precautionary, and based on field studies, at what received level of sound measured in dB re 1μPa (RMS) would MS consider no porpoise would be disturbed?

9. In Germany, but not in the UK, Temporary Threshold Shift (TTS) is considered an injury (BMU 2014). A simulated ADD caused a TTS in porpoise with onset at 142 dB. Do MS agree that repeated TTS can lead to PTS and that a reliance on PTS alone will underestimate the number of cetaceans injured?”

Response

I attach a copy of some of the information you requested. This information is contained in two letters that were sent in response to queries from members of the Coastal Communities Network (“CCN”) on 23 February and 12 March 2021 respectively. Since this time new information is available in response to questions 2, 5 and 6 as numbered above. I have supplied further information as an update to these answers below.

Question 2. MS have extended the deadline for fish farm applications to 15th January. (i) Will MS agree to publish the applications on the website? (ii) If not, could MS explain their reasoning?

Question 2 part(i) is not a valid request for information under the EIRs, however for the sake of completion, we have provided a response to you outwith the EIRs below.

MS-LOT administers the licensing function for activities in the Scottish marine area, on behalf of Scottish Ministers, in accordance with the Habitats Regulations.

MS-LOT will not publish all EPS applications as soon as it receives them. Our current practice is to publish on the Marine Scotland Information (MSi) site, application forms and associated documents only if a licence is issued. Through its streamlining project MS-LOT are reviewing the process and stages for sharing information to ensure a coordinated approach across all types of licence and consent applications. This work is ongoing and will conclude next year.

In the meantime and given the level of interest, MS-LOT has chosen to place the EPS application for ADD use at fish farms on the Marine Scotland Information web portal (MSi) at the consultation stage.

Question 5. MS officers are ‘accountable to the public for their decisions and actions and must submit themselves to the scrutiny necessary to ensure this’ . If MS intend to grant an EPS license(s) for the use of any ADD or ASD because MS believe the device(s) will pass all three EPS licensing tests, will MS provide a full and detailed explanation of their reasons and delay decisions on those applications to allow sufficient time for public consultation and consideration of input from the public?

Question 5 is not a valid request for information under the EIRs, however for the sake of completion, we have provided a response to you outwith the EIRs below.

Adding a process of public consultation for each individual application is not a statutory requirement and, would introduce a material change to current regulatory processes with implications for EPS licensing more generally, bearing in mind that Marine Scotland is not the only regulator which processes EPS licences.

Furthermore, Marine Scotland have published details of the types of assessment and consideration of satisfactory alternatives on our website and members of the Coastal Communities Network have previously provided us with extensive comments for our consideration on various technical aspects related to ADD use and the Habitats Regulations.

Question 6. In deciding whether cetacean species will be maintained at or restored to FCS, how does MS intend to allow for each of the 9 factors listed below?

The answers stand for all answers to question 6 apart from question 6b. An update to this answer is provided below.

b) It incorrectly assumes that cetaceans are evenly distributed over the whole area of each block, this is demonstrably not the case and is discussed in more depth below.
In our original response we noted that predicted density surfaces within SCANS blocks are due to be published soon. These have now been made publicly available and you can find them here: Modelled density surfaces of cetaceans in European Atlantic waters in summer 2016 from the SCANS-III aerial and shipboard surveys (st-andrews.ac.uk).

An exception under regulation 11(1) of the EIRs (personal information) applies to some of the information requested because it is personal information of which you are the data subject, and so it is subject to the General Data Protection Regulation (GDPR) and the Data Protection Act 2018. This exception is not subject to the ‘public interest test’, so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exception.

However, in line with our duty to advise and assist under regulation 9, please be advised that you can make a subject access request for your personal data under Article 15 of the UK General Data Protection Regulation (UK GDPR) or, as appropriate, section 45 of the Data Protection Act 2018.

About FOI

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.

EIR 202200324154 - Information Released - Annex A

EIR 202200324154 - Information Released - Annex B

Contact

Please quote the FOI reference
Central Enquiry Unit
Email: ceu@gov.scot
Phone: 0300 244 4000

The Scottish Government
St Andrews House
Regent Road
Edinburgh
EH1 3DG

Back to top