REGULATION AND MONITORING OF MARINE CAGE FISH FARMING IN SCOTLAND - A MANUAL OF PROCEDURES

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1 Regulation and monitoring of marine cage fish farming in Scotland - a manual of procedures 1-1 of 6 REGULATION AND MONITORING OF MARINE CAGE FISH FARMING IN SCOTLAND - A MANUAL OF PROCEDURES 1 INTRODUCTION 1.1 Purpose of the Manual This manual has been produced to provide staff of the Scottish Environment Protection Agency (SEPA) with detailed guidance on the legislation, policy and procedures which should be considered when regulating Scotland s marine cage fish farming industry. Although primarily an internal procedures manual, SEPA recognises that this document should be available via the SEPA Website to the industry, to Government and to the general public. This will help ensure that the industry, and others, can work within a clear and understandable regulatory framework. In addition, SEPA expects to develop further its policies and practice in this field, in consultation with interested parties. Accordingly, the manual will constitute a living document, subject to periodical amendment and up-dating. The manual was originally produced by SEPA s Fish Farm Advisory Group (FFAG) under the guidance of SEPA s Board and Management Team and has subsequently evolved under the supervision of the Aquaculture Project Management Group (APMG). The involvement of Board Members and Senior Management in providing an overview of the production of this document reflects the importance to SEPA of providing a fair, effective and progressive regulatory environment for the marine fish farming industry. SEPA operates within a legal framework defined by national and international legislation, within which it can develop internal policies and strategies, and set environmental targets. Procedures and methodologies provide the mechanism by which the legislative, policy and environmental objectives can be achieved. The structure of this manual follows this hierarchy by first describing the statutory obligations, then policy objectives, leading to detailed accounts of procedures and methodologies. The sections on procedures and methodologies follow a logical, chronological sequence from consultation responses to lease applications, and then through consent applications, processing, determination and subsequent monitoring. 1.2 Legislative framework International legislation The United Kingdom is subject to international environmental legislation, the most significant of which are the directives agreed by the Council of the European Communities. These directives are transposed into UK law by means of Regulations. There are five directives which are particularly important in the context of marine fish farming, namely the Dangerous Substances Directive, the Water Framework Directive, the Shellfish Growing Waters Directive, the Habitats Directive and the Wild Birds Directive.

2 Regulation and monitoring of marine cage fish farming in Scotland - a manual of procedures 1-2 of 6 The Dangerous Substances Directive (76/464/EEC) defines principles for the control of lists of substances, ranging from those which are toxic, persistent and which bioaccumulate (List I substances) to those which have deleterious effects upon the aquatic environment (List II substances). Some chemicals used within marine fish farming fall within the List II definition. The Directive requires Member States to introduce programmes to reduce pollution by List II substances by ensuring their authorisation on the basis of emission standards calculated from water quality objectives (in UK terms, environmental quality standards). These programmes may involve product substitution (requiring the use of a less hazardous chemical) and shall take into account the latest economically feasible technical developments. Regulations are in place which transpose the directive into UK law. The Water Framework Directive (2000/60/EC) (WFD) is a wide-ranging piece of European environmental legislation that has been transposed into Scots Law through the Scottish Parliament as the Water Environment Water Services Act Further subsidiary Regulations are however required to fully introduce the new control regimes set out in the Directive which will occur in Scotland from 2005 onwards. The overall objective of the WFD is to bring about the effective coordination of water environment policy and regulation across Europe in order to: prevent deterioration and enhance status of aquatic ecosystems, including groundwater; promote sustainable water use; reduce pollution; and contribute to the mitigation of floods and droughts. The aims present major challenges to those with an interest in the aquatic environment and will heavily influence the way SEPA regulates marine fish farming from 2005 and beyond. To meet these challenges a wide range of activities is underway which cover subjects included in, and associated with, the Directive. The Shellfish Growing Waters Directive (79/923/EEC) concerns the quality of shellfish waters in areas designated by Member states as needing protection or improvement in order to contribute to the high quality of shellfish products directly edible by man. Member States must establish programmes for reducing pollution to ensure that designated waters conform to the defined standards. Concerns over biocides are already covered by the Dangerous Substances Directive, to which the Shellfish Growing Waters Directive makes reference. Additional relevant limits to fish farming are those that relate to suspended solids and to dissolved oxygen, both of which should normally be covered by the discharge consent conditions imposed by SEPA on fish farm operators. Regulations are in place which transpose the directive into UK law. The Habitats Directive (92/43/EEC) and the Wild Birds Directive (79/409/EEC) concern the protection and conservation of natural habitats. SEPA is a competent authority with regard to all areas designated in Scotland under these directives, that is Special Areas of Conservation (SACs) and Special Protection Areas (SPAs), collectively known as European sites. SEPA is also a relevant authority for European marine sites in Scotland, that is any SAC or SPA which extends below the mean low water mark of spring tides. SEPA as a competent

3 Regulation and monitoring of marine cage fish farming in Scotland - a manual of procedures 1-3 of 6 authority must have regard to the terms of the directive, in fulfilling its statutory functions, in order to protect the conservation interests for which any SAC or SPA was designated. For European marine sites, SEPA must, as a relevant authority, participate with other relevant authorities in drawing up a single management scheme for each site where any relevant authority considers that one is necessary UK legislation The Environment Act 1995 SEPA was established and exists to carry out the functions transferred or assigned to it by or under the Environment Act 1995 (EA 95) Section 21(1)[a] of the EA 95 identifies SEPA s pollution control functions with respect to water pollution, as those functions under and by virtue of : The Rivers (prevention of Pollution) (Scotland) Act 1951, Part lll (the 1951 Act); The Rivers (prevention of Pollution) (Scotland) Act 1965 (the 1965 Act); The Control of Pollution Act 1974, Part ll (the 1974 Act). These include all general River Purification Authority (RPA) functions. The EA 95 also amended the 1974 Act and, in particular, changed the general water pollution offence sections. However, a substantial amount of the 1974 Act remains unchanged and the EA 95 did not broaden its purpose in any way. It is therefore necessary to turn to the 1974 Act to ascertain the scope of SEPA s functions as regards water pollution from fish farming activities. The EA 95 also defines SEPA s general duties and responsibilities. It is important to stress that these general duties have precedence over all internal SEPA policies and procedures. SEPA must always be able to demonstrate that it operates in a manner which is consistent with its EA 95 duties. However, these can only be fulfilled in the pursuance of the statutory functions transferred to SEPA by section 21 (see above). Staff should always refer directly to the wording of EA 95 and/or consult with SEPA s legal team where there are concerns relating to compliance with EA 95. The most relevant duties are as follows: SEPA has a duty to promote, the cleanliness of inland waters, groundwaters and tidal waters (EA section 34). SEPA s pollution control powers must be used to prevent or minimise or remedy or mitigate the effects of pollution upon the environment (EA section 33). SEPA must compile information for the purpose of carrying out its pollution control functions relating to the general state of pollution of the environment (EA section 33). In formulating or considering any proposal relating to its functions, SEPA must have regard to the desirability of protecting and conserving and enhancing Scotland s natural heritage (EA section 32). Furthermore, SEPA has a duty, to such an extent as it considers desirable, to promote (a) the conservation and enhancement of the natural beauty and amenity of inland and coastal waters and of land associated with such waters, and (b) the conservation of the flora and fauna which are dependent on an aquatic environment (EA section 34). SEPA has a duty in formulating or considering any proposals relating to any functions to have regard to the social and economic needs of an area, in particular to such needs of rural areas (EA section 32). In considering whether or not to use its power under any enactment and in deciding the manner in which to exercise any such power, SEPA should

4 Regulation and monitoring of marine cage fish farming in Scotland - a manual of procedures 1-4 of 6 take account of the likely cost and benefits of the exercise or non-exercise of its power (EA section 39). The context for these duties is provided by non-statutory guidance from the Secretary of State for Scotland on Sustainable Development (Scottish Office, 1996a) which is defined as development that meets the needs of the present without compromising the ability of future generations to meet their own needs. This guidance is provided under EA section 31. It defines SEPA s principal aim (subject always to its statutory functions) and explains how the Secretary of State for Scotland (as was) expects SEPA to interpret its obligations with respect to sustainable development. The Secretary of State for Scotland (as was) defines SEPA s principal aim as: to provide an efficient and integrated environmental protection system for Scotland which will both improve the environment and contribute to the Government s goal of achieving sustainable development. The document Background to the Guidance on Sustainable Development identifies six principles which are especially relevant to SEPA: using the best scientific information available; the precautionary principle; considering the carrying capacity of habitats and ecosystems; the polluter pays principle; the wise use of natural environmental capital; and the interests of future generations. The precautionary principle is defined as (Scottish Office 1996b): Where there are significant risks of damage to the environment the Government will be prepared to take precautionary action to limit the use of potentially dangerous materials or the spread of potentially dangerous pollutants even where scientific knowledge is not conclusive, if the balance of likely costs and benefits justifies it. The WFD and WEWS Act and subsidiary regulations will progressively influence the regulatory approach to fish farming. SEPA has however written this manual of procedures so as to be compatible with the requirements of current legislation while acknowledging that major changes to the regulatory framework will continue to occur in the future. The guidance on sustainable development is especially relevant to the regulation of the fish farming industry, regulation which involves SEPA in balancing the requirements for rural economic development and for protection of a high quality environment. 1.3 SEPA s policy The following section deals with strategic policy objectives whereas more detailed policy is presented at the beginning of appropriate sections of the manual. SEPA considers that for there to be further expansion of marine fish farming in Scotland, the industry will be required to further improve its environmental performance, and to continue to demonstrate that marine fish farming does not adversely effect the wider environment. In this respect SEPA proposes the following objectives which will be used as the basis of SEPA s response to Crown Estate and

5 Regulation and monitoring of marine cage fish farming in Scotland - a manual of procedures 1-5 of 6 Local Authority planning and Works Licence consultations (see section 2.1). These will also be considered during the processing of consent applications. SEPA endorses the aims and objectives of the Strategic Framework for Scottish Aquaculture (Scottish Executive 2003) and shall work with the fish farming industry, statutory agencies and other interested parties to contribute to the development of a thriving and sustainable fish farming industry in Scotland. This approach will be developed in the context of protecting and enhancing Scotland s environment in a manner that allows for a wide range of use and enjoyment of the countryside. SEPA strongly supports the fish farming industry s objectives of developing effective, accredited environmental management systems which are relevant to SEPA s objectives and, where appropriate, will assist in their development and promotion. In the longer term, SEPA will re-assess the appropriate level of regulation having taken into account the effectiveness of these management systems. SEPA will develop links with the regulatory agencies of other major marine fish farming states. The intention will be to promote a more internationally-consistent approach to the regulation of what is now a multi-national industry. SEPA considers that there is an inherently higher environmental risk associated with fish farming development within semi-enclosed sea lochs and voes, which have relatively poor dispersion characteristics. Many farms in such areas have reached, or are close to reaching, their maximum sustainable size and their scope for further expansion is very limited. Accordingly, SEPA will has developed a consenting approach based around the mathematical model AutoDEPOMOD using parameters which favour the establishment, or expansion, of fish farm sites in more dispersive open-water and off-shore areas rather than those sites in enclosed areas. SEPA supports the use of the Locational Guidelines developed by the Fisheries Research Services Marine Laboratory (SEERAD 2003). SEPA will have regard to these guidelines and, accordingly, consents to discharge will not routinely be issued for developments in waters designated as Category 1. SEPA will only consent new sites or expansions at existing sites in Category 2 waters where such expansion will not lead to that waterbody being re-categorised as Category 1. The increasing size of fish farm units justifies, and can support, more sophisticated pre-development environmental assessment and post development pollution control strategies and monitoring. SEPA will consider approaches to pollution control appropriate to the size and location of the farm. For example, SEPA supports the installation of automated feeding technology such as systems with feedback loops to reduce feed wastage appropriate to the scale of the fish farm development.

6 Regulation and monitoring of marine cage fish farming in Scotland - a manual of procedures 1-6 of 6 SEPA will actively promote a progressive reduction in the amount of waste lost to the environment per tonne of fish production. SEPA will identify any fish farming sites which have an unacceptable effect upon the environment, and will take action to restore the environment to a good status. SEPA welcomes comments on its actions and polices from the industry and other interested parties (e.g. environmental groups, special interest groups). Accordingly, SEPA will seek to continue and improve its interactions with such groups. SEPA considers that certain industries which support fish farming, such as feed and pharmaceutical companies, and net and cage manufacturers, have an important role to play in the future development and environmental effects of fish farming. Accordingly, SEPA will seek to develop further its dialogue with the support industries in order to promote its strategic objectives.