Regulation of fish and shellfish farm deposits: consultation analysis

Analysis of responses

An analysis of the responses was conducted by the Aquaculture Policy Programme, within the Marine Directorate of Scottish Government. Throughout the report, “respondent” is used to refer to organisations, groups and individuals. Response results are outlined below.

Question 1: Do you agree with the proposal to identify SEPA as the responsible authority for the regulation of fish farm environmental discharges between 3-12 nautical miles? (Agree/Disagree)

19 respondents answered “agree”

8 respondents answered “disagree”

Respondents were given the opportunity to provide reasons for their answer, with 26 respondents providing additional comments.

Of the 19 respondents who agreed, 2 were individuals and the rest represented organisations including SEPA, NatureScot and other public bodies, Local Authorities, Fisheries groups, the Marine Conservation Society, and WildFish.

The most common reason for supporting the proposals in the consultation was to ensure consistency across the 0-12 nautical mile area and reduce duplication in the process. Most of the respondents agreed that SEPA is best placed to carry out this function, with one respondent noting “having a single authority overseeing and managing aquacultural discharges from surfline to 12 miles out makes complete sense; the only question is why this has taken so long”. SEPA stated its support for the proposal, commenting that, “this avoids regulatory duplication, keeping the process consistent and simple”. NatureScot agreed that the proposals would “reduce duplication of regulatory activity and provides a consistent approach”. Crown Estate Scotland commented that, “this provides clarity of approach for stakeholders and developers and enables SEPA's expertise with regards to regulating fish farm discharges to be applied”, and “provide confidence to stakeholders that the activity is operating within environmental limits”.

The Local Authorities which responded were also supportive with Shetland Islands Council noting that it “makes sense as SEPA are the experts for discharge and also brings 3-12 NM into line with the 0-3 NM”. Orkney Islands Council commented that the proposals “will improve the clarity and efficiency of the current regulatory regime for fish farming which will be beneficial.” Orkney Islands Council also noted that the proposals “should support innovation in offshore aquaculture technologies, reduce adverse interactions in more environmentally sensitive inshore areas and help to reduce conflict with other marine users in busier inshore locations.”

3 of the 4 fisheries groups supported the proposals citing consistency, reduction in duplication and SEPA as an expert in the area. Orkney Regional Inshore Fisheries Group stated that “Overall SEPA appeared to be the best choice for this work.” Fisheries Management Scotland voiced it’s support for “designating the Scottish Environment Protection Agency (SEPA) as the single responsible authority for environmental discharges from fish farms out to 12 nautical miles” and went on to say “A single regulator has the potential to reduce duplication and deliver more consistent, science-led decision-making”. It should be noted that while some of the fisheries groups voiced their support for the proposals, they were clear that any support is caveated with the implementation of “strict monitoring protocols” and “accompanied by robust statutory safeguards and adequate resourcing”.

Similar to the fisheries groups, 3 of the 4 Environmental/animal welfare groups which responded supported the proposal but with reservations. The Marine Conservation Society stated that it supported the aim to ensure that “fish farm developments between 3-12 nautical miles are appropriately assessed, licensed and regulated in respect to environmental discharges” and the “need for consistency in regulation”. Marine and Coastal Conservation of Loch Linnhe and WildFish both agreed with the proposals but raised concerns regarding the capacity and effectiveness of SEPA to undertake the responsibilities in the 3 – 12 nautical mile zone. All 3 called for better resourcing for SEPA if the proposals go ahead.

The Norwegian salmon farming business SalMar ASA noted it’s support for the proposal as it “may be appropriate to harmonise the regulatory process for fish farms between 0-3 and 3-12 NM”. However, it also stated that “further and complete harmonisation beyond 12 NM is not possible this way and other approaches may be just as appropriate and facilitate for a harmonisation of regulations including beyond 12 NM.” It was also noted that “any regulatory mechanism used to control environmental discharges from fish farms should be place and technology specific, rather than a generic set control”.

All 8 respondents who disagreed provided reasons for their responses. These respondents included fish farm businesses, the Scottish Fisherman’s Federation, Animal Equality UK and Seafood Shetland.

A common concern raised by all the respondents who disagreed, was whether SEPA had sufficient resource to take on responsibility for regulating fish farm environmental discharges between 3-12 nautical miles. Seafood Shetland commented that SEPA “is failing to fulfil its statutory duties at present with regard to the shellfish aquaculture sector”, in reference to SEPA’s statutory responsibilities for Shellfish Water Protected Areas, and that these issues should be investigated further “before imposing additional responsibilities are considered”. The Scottish Fisherman’s Federation stated that “whoever is in charge must commit to making sufficient resources available in the short and long terms to ensure that farms adhere to strict environmental guidelines”. Animal Equality UK provided its view that SEPA is “not resourced to enforce regulations of this type” and “have a track record of inadequate enforcement”.

Responses from the Scottish salmon farming sector also noted their view that SEPA was not appropriately resourced to undertake this regulatory function. Salmon Scotland^[1] raised a number of concerns in relation to SEPA being suitably resourced to carry out this type of regulatory activity. Salmon Scotland stated that “The consultation identifies a clear need to increase resourcing and expertise in MD-LOT to properly fulfil this regulatory function. SEPA has also confirmed it would need to hire significant additional staff to undertake the new function (i.e. Both SEPA and MD LOT will need extra resource.)” The Aligned Industry Position also commented that “the proposal fails to analyse the necessary allocation of resources to develop and apply a new framework”. A number of Scottish salmon farming businesses that provided individual responses to the consultation, raised similar concerns regarding resource requirements.

Scottish salmon farm business respondents raised a number of further concerns. A consistent theme amongst all sector responses was that the proposal had been developed too quickly and with insufficient engagement. All sector respondents called for a pause to the development of the proposals, with the Aligned Industry Position response recommending that Scottish Ministers “work with the sector to develop a bespoke, proportionate, and tailored regulatory framework for offshore aquaculture”.

Related to this point was criticism that extending the existing regulatory framework out to 12 nautical miles maintained existing structural duplication. The Salmon Scotland position response stated that “the current proposal directly contradicts the Griggs review by choosing to mirror a system demonstrated to be overly complex, onerous, and lacking transparency”. Cooke Scotland commented that “rather than delivering simplification, the current proposal entrenches duplication and inconsistency. It does not resolve the structural separation between planning, environmental regulation, and fish health oversight, nor does it align aquaculture regulation with the proportionate, risk-based approaches already applied elsewhere in the marine environment.”

Scottish salmon farm business respondents also challenged the position made in the consultation that SEPA had the relevant experience in place, compared to MD-LOT, to best carry out regulation of fish farm discharges between 3-12 nautical miles. There was a consensus across Scottish salmon farm business respondents that there is no justification to overriding MD-LOT’s established offshore regulatory control. The Salmon Scotland response provided the view that SEPA’s experience in regulating fish farm activity between 0-3 nautical miles would not directly translate to an ability to carry out the same role between 3-12 nautical miles, noting the “fundamental differences between coastal and offshore marine environments”, and that “it is not possible, nor appropriate, to extrapolate a regulatory framework developed for the nearshore (0-3 NM) zone, to the offshore (3-12 NM) zone”. The Aligned Industry Position stated that “developments in this zone have traditionally been assessed by MD-LOT under the Marine Scotland Act, and thus they currently has the expertise, if not the “person power”. SEPA does not appear have the experience and thus requires to be resourced in expertise and “person-power””.

The Salmon Scotland position also stated that, “MD-LOT, has ample experience in the complex challenges of risk assessing and consenting offshore developments”. In particular it was referenced that MD-LOT’s role in licensing marine dredge and dump activities, “shares a clear methodological comparison to the deposition of feed and faeces and the administration of medicines within a fish farm”.

Scottish salmon farm business respondents shared the view that there was not any detail provided on how fish farm environmental discharges would be regulated between 3-12 nautical miles, with the consultation only focussed on who should be responsible. The Salmon Scotland position stated that “it is not possible to assess who should regulate, without a clear understanding of how they might regulate. This important information about how is lacking”.

Concerns were shared across Scottish salmon farm business respondents that using the existing processes for regulating fish farm discharges would be too precautionary. The Salmon Scotland position commented “To date, we have had no evidence to demonstrate that SEPA will do anything but adopt the current (or very similar) approach in 3-12 NM, as in 0-3 NM” and this this would present a risk that, “the assessment methodology will make offshore developments economically unviable due to limitations on scale, higher operational costs, increased equipment demands, and logistic challenges.” Scottish Sea farms, in its individual response noted that “SEPAs lack of experience, without a bespoke framework, will result in an overly precautionary approach limiting the scale of developments, and coupled with higher operational costs and logistical challenges, will stifle sustainable development”.

On a related point Scottish salmon farm business respondents noted that they would be negatively impacted by SEPA requiring to resource development of a new framework to assess development between 3-12 nautical miles. The Salmon Scotland position commented that “there is a lack of demonstrated interest from Scottish producers in developing operations within the designated zone” and so “Scottish Government is allocating resources toward an initiative that does not directly benefit local stakeholders”. It was also stated that Scottish fish farm businesses “will bear the financial burden of framework development, while the advantages are realised by other businesses operating outside of the Scottish (and likely UK) economic area”.

Scottish salmon farm business respondents raised the issue of how the proposals related to existing legislation. It was commented that identifying SEPA as the regulator for fish farm discharges between 3-12 nautical miles would be in conflict with the scope of the Water Framework Directive. The Salmon Scotland position also stated that there was a lack of detail provided on how the proposal would “address the objectives of the Marine (Scotland) Act or, crucially, how it will integrate with the existing marine licensing and planning regimes already operating within the 3–12 nm zone”

Question 2: Do you agree that the existing marine licence exemption for deposit of substance from fish farms which is liable to cause pollution of the water environment be extended to cover waters out to 12 nautical miles? (Agree/Disagree)

17 respondents answered “agree”

8 answered “disagree”

2 did not answer

Respondents were given the opportunity to provide reasons for their answer, with 23 respondents providing additional comments.

The key points raised in support of the proposals were that the proposals would ensure consistency and that it would help to reduce duplication in the consenting process for fish farming between 3 and 12 nautical miles. Most of the respondents agreed that it would aid in streamlining the consenting system for fish farming. SEPA stated, “we believe the proposed approach will help to simplify and streamline the consenting and regulatory framework and ensure clarity for operators and interested third parties.”

Further support was expressed by Crown Estate Scotland and NatureScot who agreed with the proposal, with both noting that the proposed amendment would reduce duplication of regulatory activity. Support was further reflected in the responses from all of the Local Authorities who all agreed with the proposal commenting that the approach would reduce regulatory duplication, with Orkney Islands Council additionally noting that it would “be beneficial to the sector and regulators.”

The Marine Conservation Society voiced its support for the proposal but noted that it would “like to understand further what steps the Marine Directorate would take to ensure self-declared exemptions as a navigational risk have been fully considered through the planning permission process, and what its remit would be in the case of resolving potential disputes”

Salmon Scotland stated in its response that it agreed with the proposed extension to the Marine Licence exempted activities out to 12 nautical miles, should SEPA be made regulator for fish farm discharges between 3-12 nautical miles, “as they are essential to achieving the goal of reducing duplication should the proposal be progressed”. However, Salmon Scotland were clear that support was dependant on the implementation of the proposals stating, “we do not support this change, should responsibility for assessment remain with Marine Directorate.” Scottish Sea Farms echoed the response from Salmon Scotland stating that, “should SEPA be identified as the responsible authority for the regulation of fish farm environmental discharges between 3-12 nautical miles, we agree, to avoid duplication in regulation”.

Of the respondents that disagreed, 4 referred to their reasons given under Question 1 of the consultation. These primarily related to the view that SEPA should not be made regulator for fish farm discharges between 3-12 nautical miles, due to concerns regarding SEPA’s resourcing.

Wild Fish commented that “Offshore environments are subject to greater uncertainty, and regulatory oversight is inherently more complex. In such circumstances, the precautionary principle should apply, and exemptions should be reassessed and potentially narrowed rather than automatically extended for the sake of administrative consistency.”

One respondent noted that while they understand the intention to reduce duplication, there can be more sensitive areas beyond 3 nautical miles and that “the Marine Licence is an important checkpoint” allowing “consideration of location, timing, cumulative impact with nearby sites, interaction with fisheries and with protected areas, and it allows the public to see and comment on what is proposed”. The respondent suggested that the exemption should only be applied when SEPA has already “authorised the discharge and when there is no likely interaction with marine protected areas”.

Question 3: Do you agree that the wording of The Marine Licensing (Exempted Activities) (Scottish Inshore Region) Order 2011 is updated in regards to the deposit of equipment used in the course of the propagation or cultivation of fish and shellfish to provide businesses with clarity in determining whether the exemption may apply to a development? (Agree/Disagree)

22 respondents answered “agree”

3 answered “disagree”

2 did not answer

Respondents were given the opportunity to provide reasons for their answer, with 22 respondents providing additional comments.

Most of the respondents were supportive of the proposals with the most common reason for support being that it would provide clarity to all involved and work towards streamlining the consenting process. Local authorities were supportive of the proposal with Shetland Islands Council stating it “allows companies to make use of what it was intended to be used for”, and The Highland Council noting that “Clear guidance on what constitutes exempt equipment will reduce inconsistent interpretation”. Orkney Island Council commented that “An amendment to the Exempted Activities Order to state that the exemption applies to all fish farm equipment, where the relevant conditions for the deposit of the equipment are met, should reduce duplication of regulation”.

Some of the respondents referenced the need for all equipment to be included and that the exemptions should in fact be more stringent to prevent equipment from becoming a pollution risk.

One respondent indicated that while they were supportive of the proposals for the purposes of clarity, a full marine licence should be applied if the business plans to place equipment near a sensitive location or there is any indication of environmental risk to ensure “navigation, fisheries and nature conservation interests can be consulted.”

A number of respondents who agreed provided recommendations on how clarity on the use of the exemption could be further improved. The Royal Yachting Association commented that “it is essential that breaking up and release of the fish farm structure and equipment, including ropes, is included as being a deposit of equipment.” Crown Estate Scotland noted that the need for mitigation to be in place to reduce navigational risk should be “clearly understood by all parties involved in the planning process to avoid a risk of misinterpretation.” Crown Estate Scotland also commented that operators must be able to demonstrate that “mitigation is in place and is monitored over time, insurance is in place and that the location has been registered with the Hydrographic Office to mitigate risks and manage liabilities in the marine environment.” Nature Scot recommended that use of the exemption should include a condition that a deposit “should not pose a significant risk to natural heritage features” and that guidance be provided on the definition of an artificial reef.

Of the respondents who agreed with the proposal, some provided reasons as to why use of the exemption may still be limited following any amendments being made. Seafood Shetland commented that use of the exemption would still be limited depending on whether insurers would be content with the exemption being used, and Crown Estate Scotland’s views on exemption use. Salmon Scotland’s position stated that placing the responsibility on the developer to determine if the exemption should apply was not appropriate and “greater engagement and guidance by MD-LOT would encourage understanding and uptake of these exemptions”.

Of the respondents that disagreed, one respondent stated that no offshore salmon farming should be licensed. Animal Equality UK noted its concerns “about scope and oversight of what equipment becomes exempt” and that “"all equipment used directly in propagation and cultivation" is too obscure”. Concerns were raised that certain equipment which may cause harm to marine life would become exempt, such as waste collection barges, acoustic deterrent devices and experimental technologies”. The Scottish Fisherman’s Federation also disagreed, stating that farm equipment “poses risks to navigation in the inshore region, however the presence of these deposits in the 3-12 NM region in terms of presenting safety risks to fishing vessels will be as bad if not worse” and raised concerns that “allowing farmers to make their own judgement on where exemptions apply may lead to a more relaxed approach to the deposit of certain equipment.”

Question 4: Do you have any other points you wish to raise regarding the proposals set out in this consultation paper? If so please provide details below.

22 respondents provided a response to this question. Some of the consistent points raised are detailed below.

A number of the respondents referenced the need for further transparency in the process. With one respondent suggesting a single platform for environmental monitoring data which is publicly available. The Royal Yachting Association also recommended that a one stop shop for reporting environmental and navigational risks should be considered.

A number of the respondents indicated they wanted to see more detail of the regulation and how it would work in the final version including the assessment of cumulative impacts across 0-12 nautical miles and tighter environmental controls for sites near sensitive areas. A number of respondents also queried where responsibilities would sit across different organisations for the regulation of aquaculture between 3-12 nautical miles. Crown Estate Scotland noted that there was a need to “ensure an appropriate level of co-ordination between all statutory agencies involved in consenting activities” in regard to the potential for future overlap between fish farm applications and other marine developments”. The Marine Conservation Society recommended that “there is a strong need for offshore aquaculture to be fully considered during the continued development of NMP2”.

Some of the respondents commented on the operational workings of SEPA. The respondents were particularly interested in the efficiency of monitoring and enforcement. One respondent noted that the operational costs of the current framework should be benchmarked and then reassessed to determine effectiveness, following implementation. Another respondent suggested that SEPA should publish an implementation plan on monitoring and enforcement. SEPA reiterated its agreement with the proposals outlined as a way to reduce duplication and incorporate consistency in the process. SEPA noted that EASR is a modern and adaptive framework which is appropriate for supporting the regulation of novel infrastructure approaches and that for development between 3-12 nautical miles it proposes to “apply the existing regulatory framework for Marine Pen Fish Farming, adapting where necessary”. SEPA also stated that becoming lead authority for environmental deposits would support its ability to recover costs, noting that “alternative approaches, such as acting solely as a consultee to the marine licence process, would not enable us to recover costs under our current charging schemes. On resourcing SEPA stated that any additional resourcing “will be for the preparation work.”

The Salmon Scotland response included a representation from the Industry Modelling Working Group offering an open invitation for active collaboration from technical scientists and oceanographers within the Scottish finfish aquaculture industry. The purpose of this offer would be to address the industry’s concerns that the existing risk assessment protocol used by SEPA to assess fish farm environmental discharges protocol is inappropriate for exposed environments. It was also noted that “many of the same challenges occur within the three nautical mile limit. We therefore recommend framing the regulatory challenge around “more exposed, higher‑energy, deeper sites on the continental shelf”, rather than a fixed 3 –12 NM band”. Scottish Sea Farms also noted its view that, “as aquaculture moves toward deeper, more exposed offshore locations, a robust risk assessment tool should explicitly incorporate relevant physical processes rather than relying on static thresholds. Standards should continue to evolve toward process-based modelling to ensure environmental protection while enabling sustainable expansion.”.

Question 5: Do you agree with our approach and findings within the impact assessments for the proposals set out in this consultation? (Agree/Disagree)

12 respondents answered “agree”

12 answered “disagree”

3 did not respond

Respondents were given the opportunity to provide reasons for their answer. 17 respondents provided additional comments which are grouped by impact assessment.

1. Business and Regulatory Impact Assessment (BRIA) – Partial

A number of respondents, including Scottish salmon farming businesses, Marine Conservation Society, Roal Yachting Association and community groups, noted that the BRIA should reflect a view held by some that SEPA may not be sufficiently resourced at present to carry out regulation of fish farms between 3-12 nautical miles.

Scottish salmon farming businesses also noted that the economic impact on businesses of a “highly conservative risk assessment leading to restricted development” was not considered within the BRIA. Both Salmon Scotland and Scottish Sea Farms also stated that “no resourcing and costings for the three options are provided in the partial BRIA”.

SEPA commented that “The impact upon SEPA’s resources is dependent upon the volume and complexity of applications within this new geographic area. At this stage, the scope and impact of this is not yet known. We are mindful of implications on how we monitor, audit and regulate and are in active discussions with Marine Directorate to explore how we can optimise our relative strengths and capabilities.” SEPA also stated that it, “will apply its existing expertise in assessment, licensing and regulation of fish farm environmental discharges to allow SEPA to regulate this activity between 0-12 nautical miles,” and that SEPA, “already determines applications for farms in a range of different locations, including exposed locations, under its current remit of regulating up to 3 nautical miles.”

2. Strategic Environmental Assessment (SEA)

One respondent provided further comment on the SEA. The respondent agreed with the approach taken to the impact assessments but noted that SEPA would have to be appropriately resourced to implement the proposals.

3. Island Communities Impact Assessment (ICIA) – Partial

One respondent referred to the ICIA and disagreed with the approach taken.

The respondent pointed out that the effect in the ICIA was scored as neutral but noted that “communities often rely on the visibility of a licensing process to raise local navigation, fisheries and nature concerns,” and raised the concern that widening the exemptions would reduce this visibility.

4. Child Rights and Wellbeing Impact Assessment

Seafood Shetland sought clarity as to why there was requirement for an impact assessment in respect of Child Rights' and Wellbeing.

5. Comments on all impact assessments

One of the respondents noted that the impact assessment document was too long and would “lead to 'skim reading' and the possibility of vital information being overlooked”. Two of the respondents indicated that they disagreed with the impact assessments on the ground that a much more precautionary approach to the environmental impacts should be taken. One respondent noted the concern that the impact assessments “may be over-simplistic and favour profit over protection”.