Regulation of fish and shellfish farm deposits: consultation

Proposed amendments to exemptions for requirements for marine licences

The Marine Licensing (Exempted Activities) (Scottish Inshore Region) Order 2011 (“Exempted Activities Order”) sets out activities that are exempt from the requirement for a marine licence under certain conditions. In relation to fish and shellfish farming, article 12 includes an exemption for the deposit of certain equipment and, between 0-3 nautical miles, the deposit of any substance which is liable to cause pollution of the water environment.

The executive note for the Exempted Activities Order outlined that its purpose is to, “exempt day to day activities, ensure compatibility with international and domestic law, avoid regulating the same activity twice and enable emergency action to be carried out without damaging delay.”

If SEPA is identified as the responsible authority for the regulation of fish farm environmental discharges between 3-12 nautical miles, without any changes being made to the Exempted Activities Order, the regulation of the deposit of substances from fish farms in 3-12 nautical miles would be duplicated, as both a marine licence and an EASR permit would also be required for this activity.

Noting that the intention of the Exempted Activities Order includes avoiding regulation of the same activity twice, it is proposed the existing exemption for the 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.

This would also be consistent with the approach of regulation of substances into water from fish farms in 0-3 nautical miles for which, as noted above, an exemption currently exists in the Exempted Activities Order.

Question 2(a):

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

Question 2(b)

Where applicable, please give reasons for your answer.

In regards to the deposit of equipment, article 12 of the Exempted Activities Order currently provides exemptions for the deposit of specified types of equipment which are any “trestle, raft, cage, pole, rope or line in the course of the propagation or cultivation of fish.” Deposit of those types of equipment are exempt if they meet the conditions that the deposit is not:

• made for the purpose of disposal,
• made for the purpose of creating, altering or maintain an artificial reef; or
• causing or likely to cause obstruction or danger to navigation.

It is the responsibility of those carrying out an exempted activity to satisfy themselves that they meet the conditions of the exemptions. Existing guidance on the use of the Exempted Activities Order states that businesses may need to consult with navigation bodies to ensure they are satisfied that they meet the criteria of the exemption, and that the development includes any and all of the mitigation as advised by the navigation bodies.

The deposit of fish and shellfish farm equipment may be considered as an activity where there is some duplication of regulation due to overlap between matters considered in relation to applications for marine licences (where the exemption within the Exempted Activities Order is not relied on by a business and they seek a marine licence) and planning permission in respect of equipment being deposited in the sea for the purposes of fish and shellfish farming.

The placing or assembly of any equipment for the purposes of fish and shellfish farming is subject to planning controls under the Town and Country Planning (Scotland) Act 1997. Matters which may be considered as part of both marine licence and planning applications include, for example, the impact on navigation being a policy consideration for fish and shellfish farm developments under National Planning Framework 4, and also something that would be considered in the determination of a marine licence application.

To date there has been minimal use of the Exempted Activities Order by fish and shellfish farming businesses in regards to the deposit of equipment. One of the issues raised by businesses is the rigidity of the descriptions for the equipment used, which does not specifically capture ancillary equipment used on farms, such as fish and shellfish farm anchors, and moorings and barges.

To provide businesses with clarity in determining whether the exemption may apply to an activity, it is proposed the wording of the Exempted Activities Order is amended to confirm that the exemption applies to all equipment used directly in the course of the propagation or cultivation of fish and shellfish, where the relevant conditions for the deposit of the equipment are met.

Question 3(a):

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

Question 3(b)

Where applicable, please give reasons for your answer.