Aquaculture regulatory process: review

Professor Griggs's independent review of the current regulatory framework for Scottish aquaculture.

Current Regulatory Situation

The current situation in terms of aquaculture can be summed up neatly by what happens if you Google 'how to start a fish farm' in Norway or Scotland.

Searching 'how to start a fish farm, Norway' returns a number of sites that clearly set out the whole process from end to end, including who is involved in terms of regulators, Government etc. and requirements at each stage. The FAO present a fact sheet providing an overview of Norway's aquaculture legislation. An alternative source of information comes from the Salmon Business website in Norway, which provides information on the laws and regulations involved in land-based salmon farming in Norway.

The same search for Scotland will return a website of one of the regulators involved, where you can find out what they do but there is no consolidated site that sets out the whole process simply and easily. Again that is not the case in Shetland where they do have a good established process for helping people should they wish to establish a farm there. As I have talked to many people during this review it is clear that finding out precise detail of the process requirements in a single place is not easy. One person starting a shellfish farm said that they had to go to one of the regulators who provided information on their requirements only. The proposer had to actively seek help to establish where else they had to go. Further guidance was variable depending on how knowledgeable the official was in the processes of the other parties involved. This resulted in a slow and tortuous process for that person.

In this respect, my first recommendation is there should be a single website and body where anyone with any questions around starting up an aquaculture business or who have questions on more general issues or aquaculture regulation can go to find out all that they need to know.

Table 1 shows the process for each type of aquaculture consenting.
Application Authorising regulator Legislation Aquaculture type
Planning Permission Local Authority (LA) Town and Country Planning (Scotland) Act 1997
Environmental Impact Assessment (if necessary, mainly relevant to FF but can be required for SF) Local Authority (LA) The Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2011
Marine Licence Marine Scotland Licensing and Operations Team (MS-LOT) Marine Scotland Act 2010
Seabed Licence The Crown Estate The Crown Estate Act 1961
Authorisation to operate an Aquaculture Production Business (APB) Marine Scotland Fish Health Inspectorate (MSS-FHI) The Aquatic Animal Health (Scotland) Regulations 2009
Controlled Activity Regulations (CAR) licence Scottish Environment Protection Agency (SEPA) The Water Environment (Controlled activities) (Scotland) Regulations 2011
Habitats Regulations Appraisal (if Necessary All of the above The Conservation (Natural Habitats, &c.) Regulations 1994 and its amendments
Works Licence Shetland Islands Council Zetland County Council Act 1974
Notes: FF = Finfish SF = Shellfish SW = Seaweed

Table 1: Licensing requirements for each type of aquaculture and the responsible authorising bodies.

The system is complex and each part has evolved separately. Each regulator being responsible for their own procedures with no overall authority or joined up process. Each party can be approached separately and it is unusual for all regulators to meet together to discuss applications and other issues. That means that each part is licenced or approved separately and while all permissions are needed to reach a final outcome there is no real coordinated approach. Annexes F.1 and F.2 outline the differing routes that both finfish and shellfish can take to gain all licences required to commence operations. The length of time taken occurs because the current process is sequential, when it does not need to be. Even without a new process, it could be managed quicker as the timescales shown in Annexe F are not always achieved.

Local Authorities became involved in finfish and shellfish development through the Town and Country Planning Acts of 1997 and 2007 when marine finfish and shellfish aquaculture was deemed to be a 'development' and therefore should be part of the planning process. However, under the 1997 Act, aquaculture is considered as development, rather than the operational activity that it is. From discussions with Local Authorities and others it appears this has resulted in a very rigid system, with no real flexibility to suit the needs of an industry and its regulators who need to be

able to react and adapt to a very fluid and constantly changing environment in the water. It has been suggested that such a system is also detrimental to innovation and effective change management, two vital factors in enabling the sector to future proof its operations and promote sustainable development.

While it is clear from Table 1 which licences and approvals are required to operate an aquaculture business, both onshore and off shore, the consenting process is not aligned (i.e. there is no order in which an applicant must apply for these permissions).

There is no overarching body presiding over it, and there are often inconsistencies and information gaps between planning and marine licence applications. Each part of the process relies on the actioning regulators having sufficient knowledge and practice of the process to allow them to make their decisions and judgements in a competent way. While that may have been the case in the initial days of finfish farming I do not believe that is now the case for two main reasons:

  • To do regulation well you need to do it often enough to build up a bank of knowledge and practice that you can draw on, and
  • The finfish industry is becoming more and more sophisticated and the science while more exact in some places, is not in others.

Annexe D shows the number of aquaculture applications that were made in 2020 which I believe is typical of the process. The numbers in terms of regulatory decision making are small compared with other sectors so the ability of the regulators to build up their knowledge is lost to a great extent. The issues around fish farming are complex and there is an appetite for developers to do things new and differently. This has meant that the knowledge among regulators has had to evolve, which again generally comes from doing things regularly. Added to this is the need for regulators to recover costs and the general pressure on finances and resources has meant a shrinking in numbers and expertise.

Highlighted below are some comments which reflect on the need for change, 4 of these comments were from regulators, 1 was from academia, 1 from an ENGO (environmental non-governmental organisation) and 1 from industry.

Comment 1

"Applications for offshore renewable Marine Licences and s.361 consent applications are determined by the Marine Scotland Licencing Operations Team (MS-LOT). Section 36 Consents refers to consents granted under the Electricity Act 1989. Under this system, both Local Authorities and SEPA are statutory consultees for s.36 applications and are also fully consulted on any deemed planning components of s.36 applications. Both the local authority and SEPA must also be consulted withrespect to Marine Licences. This is one of the major differences between offshore renewable consenting and fish farm consenting. In other respects there are similarities between the processes in terms of NatureScot being statutory consultees in both systems, with seabed leases being required from the Crown Estate in both cases also.

As a marine activity with the requirement to obtain a Marine Licence from MS-LOT, fish farm operators are in the unique and invidious position of having to comply with both marine (e.g. National Marine Plan, regional Marine Plans) and terrestrial planning guidance. The consenting system for offshore renewables is significantly more efficient and effective than that which currently exists for fish farming. It is the most obvious example of an existing one-stop-shop consenting process which allows for more effective and efficient outcomes whilst securing local decision making in the form of statutory consultees."

Comment 2

"A fundamental principle of good regulation is that the regulator needs the appropriate capacity, expertise and/or resources to monitor and enforce any conditions for a consent. For fish farming, planning authorities are required to attach conditions to planning consents for which they have no capacity, expertise and/or resources to monitor and enforce. Planning authorities, and other regulators, do not have the appropriate resources to regulate fish farming. Given the existing value of the sector, the complex nature of its environmental interactions and the ambitions for future growth, significant additional investment is required in regulation.

Environmental Management Plans are not fit for purpose. They were intended to be a stop gap to address the sea lice and wild salmonid issues until better regulation was brought in. However, the issue remains that planning officers do not have the capacity or scientific expertise to allow for effective monitoring or review of the EMP planning requirement, that is largely based on industry self-monitoring."

Comment 3

"There may be some inconsistency in the various regimes and how they are applied. For example there may be inconsistency in timeframes across leases and permits (such as planning permission or marine licence) which gives uncertainty to operators.

Marine licences are granted for a six year period, the timeframe inherited from the previous CPA regime. This is short for such permits and is taking views from statutory consultees and considering extending the validity period of such licences to be more in line with other permissions. It is currently giving consideration to extending such durations to 20 years to reduce the burden on applicants and realise benefits in terms of resource for determining applications."

Comment 4

"Allowing middle or junior managers to make critical decisions or not being capable of answering is not sensible. Decisions should be made at the right level by people with specific knowledge."

Comment 5

"The focus on sea-lice and the interactions between farmed and wild salmon has taken attention away from the broader ecosystem effects of salmon-farming."

Comment 6

"For salmon farming to grow sustainably in Scotland, it is essential that all salmon farm operators manage their farms within the environmental limits of the surrounding marine environment. Whilst an industry code of practice exists, which is largely followed by the industry, it is important that any cases of poor farm management and unacceptable environmental impact are detected, and that farm managers, and parent companies, are held accountable.

A single consultation process, led by a single body, would be a more efficient process. It would allow for all concerns to be raised and considered together, and for adequate resources and expertise to be available to scrutinise every aspect of a new salmon farm proposal.

Existing and new regulation need to meet the tests of being robust, transparent, enforceable and enforced. To ensure environmental impacts of salmon farming are identified and addressed, and therefore deliver environmentally sustainable growth of the industry, it is essential that salmon farm operations are reported on and monitored in a transparent way."

Comment 7

"The precautionary approach is a measure outlined in legislation to be implemented based on the predicted minimum impacts a site will have on a sensitive environmental factor. This measure is often applied by planners in cases where there is no knowledge of minimum impacts (e.g., sea lice dispersal, impact on wild fish population or other technical influences) resulting in the rejection of planning applications based on a lack of understanding rather than informed decision-making. The use of the precautionary principle is simply not appropriate if there are other existing bodies (e.g. Marine Scotland/SEPA) which would have the requisite knowledge to confidently determine such applications.

A recurring issue is the lack of alignment and effective communication between statutory agencies. This issue is observed not only between separate regulators with shared remit for aquaculture consenting, but also within the same agencies. An example of this is different interpretation of regulation/legislation and advice by different areas/teams/officers within the same body. In the same vein local authorities regularly interpret national planning policies and guidance in different ways. This is frequently due to highly variable staff resources and experience between authorities."

Annexe I sets out the major themes of all the comments received for information.

It is clear from the evidence I have gathered that the current process of consenting and licencing for aquaculture does not work as well as it could. It has many regulators and the process is sequential but not linear so you can start anywhere, with any of the regulators, which in itself leads to inconsistency and process delays. The regulations appear to be OK but it is difficult to be definitive on that because the process does not work well so to be clear what I am recommending is not new regulations per se but a different and improved process that allows all that is there to work in a process that is simple, efficient, and effective.

The changes I recommend further in my report take into consideration all views on aquaculture and importantly, not just those of the industry itself. However, I believe that if that process is to change it should do so for finfish, shellfish and seaweed utilising a different framework for each which I will expand on later.

To be effective, the decisions and judgements within the regulatory processes need to be based on credible evidence. Throughout this review, I have been led to believe that this is not the case currently within the aquaculture sector. The science and evidence has developed over the years and while some is excellent and has a basis in sound research and analysis other parts may not. Therefore whatever regulatory process is put in place, all decisions and judgements made should be based on the same science and evidence. In other sectors there are frameworks or more specific guidance in place, which allow those decisions and judgements to be made within an agreed policy context, boundary, or parameter that Government and those implementing policy on their behalf adhere to. I believe that changes should be made to the regulatory process for aquaculture, which should be underpinned by a framework that all regulators and operators in Scotland agree with and will comply with.

One of the many things that the COVID-19 experience has taught us is that following agreed science leads to positive outcomes. To do that the science itself needs to be proven to have the soundest base in fact. Also COVID-19 has shown that even within a regulating system for aquaculture things can change and work better. While SEPA has been criticised many times throughout this process they should be congratulated for their flexibility during the COVID-19 pandemic. If that flexibility could be applied to my recommendations then I believe we would all be on a better journey.



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