7 Protected Areas for Seabirds at Sea

The first step towards a network to protect Scotland’s seabirds

In this report, RSPB Scotland presents seven areas of Scotland’s seas which should be treated immediately as potential Special Protection Areas under the EU Birds Directive, and within which all decisions affecting seabirds should be assessed accordingly. We have been obliged to identify these sites because of the absence of protected area designations by the Scottish Government. This leaves the foraging areas of Scotland’s declining seabird populations unprotected, despite the unprecedented scale of potentially damaging developments at sea, some of which are in the consenting process. These seven sites are only the first step towards designating a complete and ecologically coherent network of sites at sea to protect seabirds. RSPB Scotland is identifying a second tranche of sites using advanced seabird tracking data. This will be announced in the coming months, as will the data to support our recommendations.

We urge the Scottish Government and its advisors to work with RSPB Scotland to identify the full network of designated sites for seabirds which is a requirement of both EU and Scottish legislation, and will enable Scotland to protect its invaluable marine biodiversity and support the sustainable development of world-class marine industries.

Background

Scotland holds internationally important numbers of 24 species of breeding seabirds1. However, Scotland’s seabird populations are declining rapidly. According to the Scottish Government’s own figures, of the 11 seabird species for which abundance could be calculated, nine have shown sustained declines since 1986. The largest declines have been for Arctic skua (80%), Arctic tern (72%) and black-legged kittiwake (68%). Arctic skua may cease to be a UK breeding species within a decade from now. Evidence suggests this decline is due to changes in oceanography affecting the food web, resulting in a lack of prey, and hence poor breeding success. Seabird declines can be exacerbated by damaging human activities at sea, for example badly placed marine renewable developments, or the loss of colonies due to invasive non-native species. Protected areas at sea can boost resilience in declining seabird populations.

1 Scotland’s Marine Atlas http://www.scotland.gov.uk/Topics/marine/education/atlas Page 1 of 15

For many years, the Scottish and UK Governments have acknowledged their commitment to designating an ecologically coherent network of protected areas at sea2. To meet Scotland’s various duties and obligations, the Scottish Government must protect its important seabird populations by designating both nature conservation Marine Protected Areas (ncMPAs, designated under the Marine (Scotland) Act 2010) and Special Protection Areas (SPAs, designated under the EU Wild Birds Directive). The designation of SPAs is long overdue, as this commitment dates from 1979.

The Birds Directive requires EU Member States to protect birds and their habitats, in order to secure their survival and reproduction in their area of distribution. Article 4 requires that special conservation measures be undertaken for particular threatened birds (listed on Annex 1) and regularly migratory species, and these measures must include the designation of the most suitable territories as special protection areas for these species on land and at sea. In addition, Article 3 of the Directive requires more general measures to preserve, maintain or re-establish a sufficient diversity and area of habitats for all wild birds including through the establishment of protected areas and appropriate management of habitats. This means the Scottish Government must protect areas of sea which seabirds use for activities they need to survive, including their feeding areas.

Proper implementation of the Birds Directive by designating both nature conservation MPAs for seabirds and marine SPAs will enable Scotland to protect its invaluable marine biodiversity and support the sustainable development of world-class marine industries. Indeed, the failure to designate any offshore SPAs is now causing regulatory difficulties for those seeking to undertake development projects in the marine environment. This is compounded by the failure to include most seabird species in the search for Scotland’s nature conservation MPAs.

Governments’ failure to protect seabirds as required by the EU Birds Directive

In order to provide effective protection for Scotland’s seabirds, nationally and internationally important sites must be protected3, and each must include both the colony extensions and offshore feeding areas, as both are essential for the survival of these species. Without protection of these areas, breeding colonies designated as terrestrial SPAs and Sites for

2 Including obligations under OSPAR, Convention on Biological Diversity, EU Birds and Habitats Directives and Marine (Scotland) Act 3 On land, terrestrial SPAs are supplemented by additional SSSI designations, which protect smaller, “nationally important” concentrations. However, because these SSSIs cannot be extended below the low water mark in Scotland, the areas relied on by birds from these nationally important colonies, and other at-sea aggregations, for feeding and overwintering are not protected. Page 2 of 15

Special Scientific Interest (SSSIs) risk being little more than safe places to starve, and leave seabirds unprotected through the majority of their lifecycle.

The Scottish Government has identified 33 SPAs for breeding seabirds, and in 2009 extended these to cover sea areas between 1 – 4km from the cliff. We urge the other UK administrations follow suit; we have used this as an exemplar of best practice in our discussions with the other UK administrations. However, this ignores the scientific data which states that species often depend on sea areas many tens of kilometres from their colonies. These key feeding areas are vital for the protection of the birds and so must be protected in order to meet the EU Birds Directive. Work is now continuing, by the Scottish Government and agencies, to identify the other important seabird areas necessary to complete the network. However, progress is unacceptably slow.

Such is the RSPB’s frustration at this ongoing failure to protect seabirds that in 2012 we submitted a formal complaint to the European Commission about the failure of the UK Government and Devolved Administrations including the Scottish Government to fulfil their legal obligations under the Birds Directive. Thirty-three years after the deadline for the classification of SPAs under the Birds Directive, there has been no action to address these major concerns and meanwhile the pressures on our seabirds from climate change and developments at sea are growing. Earlier this month, for example, the Scottish Government gave permission for the world’s third largest wind farm, despite clear evidence that this development could significantly harm important seabird populations using the Moray Firth4.

The first step towards a network of protected areas for seabirds at sea.

In response to the Scottish Government’s failure to protect declining seabird populations, while simultaneously sanctioning potentially damaging marine developments, RSPB Scotland has identified seven areas of sea that must be designated as potential SPAs as soon as practicable, and which should henceforth be treated as protected areas in that all decisions affecting seabirds in this areas should go through the correct assessment processes. These seven sites were in fact already identified as potential SPAs by one of the Scottish Government’s statutory advisors, the Joint Nature Conservation Committee (JNCC)5, but despite ongoing dramatic declines in seabird numbers, and the unprecedented speed and scale of developments at sea, these seven areas remain undesignated and unprotected by the Scottish Government.

4 RSPB Scotland response to Marine Scotland Licensing Operations Team on the Moray Firth offshore wind proposals (communication by letter, 7th January 2014) 5 http://jncc.defra.gov.uk/pdf/461_final_web.pdf Page 3 of 15

The scientific approach taken by JNCC for the identification of SPAs for foraging areas used by Scotland’s breeding seabirds, and offshore areas used in winter, was supported by RSPB scientists, with the caveat that both the methods and the underlying data (European Seabirds At Sea dataset) are only capable of identifying a limited and incomplete set of important areas. This approach has therefore identified only some of the areas that would be required for coherence and for the conservation of Scotland’s seabirds, and RSPB Scotland has, for over a decade, highlighted the need for further research and survey to address the shortcomings of these data. Despite this important caveat, RSPB Scotland strongly believes that sites identified from this data should be classified and protected now, while work progresses to gather more knowledge to complete the network6.

Analysis to identify inshore aggregations of seabirds in the non-breeding season and the foraging areas of breeding terns has also been undertaken, but, again, to date no SPAs have been proposed or classified. We urge immediate action to publish the results of these analyses and classify those sites identified to enable the Scottish Government to meet its obligations to have a complete and well managed network of protected areas at sea in place by 20167.

RSPB Scotland is identifying a second tranche of sites for seabirds using seabird tracking data. This further step towards a network to protect seabirds at sea will be announced in the coming months.

RSPB Scotland’s Proposal

Due to these continued delays to protecting important sites for seabirds, coupled with the increasing threats to Scotland’s globally important populations, RSPB Scotland has identified a first tranche of sites which must be given immediate protection in order for the Scottish Government to meet its many legal obligations to protect Scottish seabirds. We have named these sites West of Foula, Inner Forth Banks, Outer Caithness, Pentland Firth, North Kilda, Outer Forth Banks and West of Turbot Bank.

6 “Member States are obliged to classify as SPAs all the sites which, applying ornithological criteria, appear to be the most suitable for conservation of the species in question.” C-3/96 Commission v Netherlands http://curia.europa.eu/juris/celex.jsf?celex=61996CJ0003&lang1=en&type=TXT&ancre= ; also applies to non- Annex I migratory birds C-334/04 Commission v Greece http://curia.europa.eu/juris/celex.jsf?celex=62004CJ0334&lang1=en&type=TXT&ancre= 7 Including obligations under OSPAR, the Convention on Biological Diversity, and the Marine Strategy Framework Directive Page 4 of 15

Name Justification Species A. West Foula Kober et al (1.2) Great skua, Atlantic puffin

Inner Forth Kober et al (1.2) Atlantic puffin, common guillemot, northern B. Banks gannet, black-legged kittiwake, European shag

Outer Kober et al (1.2) European shag C. Caithness

Pentland Firth Kober et al (1.2 Common guillemot D. & 1.4)

E. North Kilda Kober et al (1.2) Northern gannet, European storm-petrel

Outer Forth Kober et al (1.4) Common guillemot, black-legged kittiwake, F. Banks Atlantic puffin and northern gannet

G. West of Turbot Kober et al (1.4) Black -legged kittiwake, Atlantic puffin

As these sites have been shown by the Government’s statutory advisors at the Joint Nature Conservation Committee (JNCC) to meet UK SPA Selection Guideline Stage 1.2 and Stage 1.48, action to classify these sites must be taken immediately. This first tranche of sites is in no way considered to be a complete or coherent network, but is intended to indicate a first suite of sites which must be progressed immediately. The Scottish Government must make progress on other seabird sites - including sites identified in the coming months by RSPB Scotland using tracking data - to be combined with these to complete the network.

8 http://jncc.defra.gov.uk/pdf/461_final_web.pdf#page=62 Page 5 of 15

RSPB Scotland’s challenge to the Scottish Government

RSPB Scotland has identified two actions the Scottish Government must take in the coming weeks to ensure it complies with European legislation and its own Marine Act.

1. The Scottish Government must acknowledge the potential SPA status of the seven sites presented here. It must also speed the analysis and development of the full Marine Protected Area network, and to ensure this is carried out before further irreversible decisions on marine developments are taken that may exacerbate the ongoing declines of our seabird populations.

2. This report has focused exclusively on the first tranche of SPAs. However in parallel with this, the Scottish Government must also press forward with the process of designating nature conservation MPAs, a requirement of both the Marine (Scotland) Act and the Birds Directive. We call upon the Scottish Government to:

(a) designate all proposed nature conservation MPAs, including the six sites to protect black guillemot and the proposed three sites, plus the Firth of Forth Banks Complex, to protect sandeel, the key prey species of the majority of our declining seabird species, and;

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(b) extend the Scottish MPA criteria to include seabirds, and press ahead with a subsequent tranche of nature conservation MPAs for seabirds to ensure a coherent network.

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7 areas that should immediately be treated as potential SPAs

Site A: West Foula Site Summary: The area has been shown to meet SPA selection guideline Stage 1.2 (>1% of biogeographic population) for Great Skua by Kober et al (2012)9. A smaller area within this has also been shown to meet SPA criteria 1.4 for Atlantic Puffin10. Designation Desired: SPA. The Scottish Government is duty bound to designate this site because JNCC has proven the area to meet Stage 1.2 of the UK SPA selection guidelines. Species: Great skua, Atlantic puffin Justification: 1,620 great skua (3.97% of biogeographic population) have been shown to use this site consistently between 1990 – 1999. This constitutes around 4% of the biogeographic population therefore the site meets Stage 1.2 of the SPA guidelines. The area has also been shown to hold around 7% of the biogeographic population of European shag, and a smaller area within the site has been shown to be important for puffin, but not used consistently through the breeding season. The puffin site has been presented as required under Stage 1.4 of the guidelines.

9 http://jncc.defra.gov.uk/pdf/461_final_web.pdf#page=62 10 http://jncc.defra.gov.uk/pdf/461_final_web.pdf#page=80 Page 8 of 15

Site B: Inner Forth Banks Site Summary: The area has been shown to meet SPA selection guideline Stage 1.2 (>1% of biogeographic population) for Atlantic puffin by Kober et al (2012)11. It also meets selection guideline 1.3 (>20,000 seabirds) for a range of species. The boundary is drawn on the basis of the area for puffin. The Outer Forth Banks area is proposed below. Designation Desired: SPA. The Scottish Government is duty bound to designate this site because JNCC has proven the area to meet SPA Stage 1.2 of the guidelines. Species: Atlantic puffin, common guillemot, Northern gannet, black-legged kittiwake, European shag Justification: 56,732 Atlantic puffin are shown to be using the site. This represents only 0.42% of the biogeographic population, but is well beyond the threshold of 20,000 birds. The results presented in Kober et al (2012) suggested that a threshold of 20,000 birds could be used in stage 1.2 of the SPA guidelines when 1% of the biogeographic population was greater than 20,000 birds, following guidelines proposed by Ramsar. The area was therefore presented in those analyses as meeting Stage 1.2. However, if these guidelines are not deemed appropriate the area must be designated using Stage 1.3 because it has been proven to regularly hold a seabird aggregation of more than 20,000 birds. The site has been shown to be used consistently in three years between 1990 – 1999 and more recently. Three other, less populated areas12 identified by Kober et al (2012) also fall within the site. These have not been shown to hold >1% of biogeographic populations but have been presented by JNCC as needed to address the adequacy of the network.

11 http://jncc.defra.gov.uk/pdf/461_final_web.pdf#page=79 12 Numbers 10, 21 and 38 for northern gannet, blcak-legged kittiwake and guillemot respectively Page 9 of 15

Site C: Outer Caithness Site Summary: The area has been shown to meet SPA selection guideline Stage 1.2 (>1% of biogeographic population) for European shag during breeding and winter by Kober et al (2012)13. Designation Desired: SPA. The Scottish Government is duty bound to designate this site because JNCC has proven the area to meet Stage 1.2 of the UK SPA selection guidelines. Species: European shag Justification: The site is made up of two areas identified by JNCC’s analysis. They overlap so summing the population estimates may not be appropriate. It holds at least 2,488 birds during breeding, 1.23% of UK population (estimated as 201,795 birds in Baker et al, 2006) and 3,179 birds during winter (1.58% of UK population).

13 http://jncc.defra.gov.uk/pdf/461_final_web.pdf#page=60 Page 10 of 15

Site D: Pentland Firth Site Summary: The area has been shown to meet SPA selection guideline Stage 1.2 (>20,000 birds, which was used in instances where 20,000 birds was greater than 1% of biogeographic population) for common guillemot during breeding by Kober et al (2012)14 Designation Desired: SPA. The Scottish Government is duty bound to designate this site because JNCC has proven the areas to meet Stage 1.2 of the UK SPA selection guidelines. Species: Common guillemot Justification: This site partly overlaps and is adjacent to another site presented for consideration by JNCC under SPA selection Stage 1.4 guideline for Arctic tern15. The site itself is estimated to hold 28,356 common guillemot during the breeding season. Though this is only 0.33% of the biogeographic population (estimated a 4,800,000), it passes the 20,000 bird threshold, which was used in all instances where 1% of biogeographic population is greater than 20,000 birds, and therefore met Stage 1.2 of the SPA selection guidelines. The use of a 20,000 bird threshold in the place of 1% of biogeographic population may not be seen as appropriate by Scottish Government, and because it has only been identified for a single species, it may also not be accepted as an assemblage, in this case this site must come forward under Stage 1.4.

14 http://jncc.defra.gov.uk/pdf/461_final_web.pdf#page=72 15 http://jncc.defra.gov.uk/pdf/461_final_web.pdf#page=70 Page 11 of 15

Site E: North Kilda Site Summary: The area has been shown to meet SPA selection guideline Stage 1.2 (>1% of biogeographic population) for northern gannet and European storm-petrel during breeding by Kober et al (2012)16. Designation Desired: SPA. The Scottish Government is duty bound to designate this site because JNCC has proven the areas to meet Stage 1.2 of the UK SPA selection guidelines. Species: Northern gannet, European storm-petrel Justification: The site is around the size of Lewis and Harris and falls in the around and to the north of St Kilda. The site itself is estimated to hold 51,784 gannets (4.47% of the biogeographic population) and 985 European storm petrels (1.28% of the UK population). The site was identified based on the concentration of northern gannets, which have been shown to meet SPA selection guideline Stage 1.2 but, given the high numbers of European storm petrel (an Annex 1 species) the site would also be eligible under SPA selection guideline Stage 1.1.

16 http://jncc.defra.gov.uk/pdf/461_final_web.pdf#page=53 Page 12 of 15

Site F: Outer Forth Banks Site Summary: The outer Forth Banks, including Wee Bankie, Berwick Bank, Marr Bank and Montrose Bank, have been shown to be extremely important for a range of seabird species by the Kober et al17 analyses, and peer reviewed literature1819. The boundary is drawn to abut the eastern edge of the Inner Forth, and encompasses all four main banks, with the northern boundary following that of the JNCC-advised area for consideration under Stage 1.4 of the guidelines. Designation Desired: SPA.JNCC analyses identified a number of areas within this site for designation under Stage 1.4 of the guidelines. Species: Common guillemot, black-legged kittiwake, Atlantic puffin and northern gannet. Justification: 27,874 common guillemot (0.33% of biogeographic population) use an area falling entirely inside of this site during wintering, another larger area has been shown to hold significant numbers during breeding (though not regularly)20 and so this area has been presented by JNCC under Stage 1.4 of the selection guidelines. Two areas for Atlantic puffin have also been presented by JNCC as meeting Stage 1.4 of the guidelines because of high densities of birds. Hamer et al (2000) found that only 3% of the gannets they tracked foraged over Marr and Wee Bankie, but more recent data seem to show a greater frequency of occurrence21.

17 http://jncc.defra.gov.uk/pdf/461_final_web.pdf 18 Daunt, F. et al. (2008). The impact of the sandeel fishery on seabird food consumption, distribution and productivity in the northwestern North Sea. Canadian Journal of Fisheries and Aquatic Sciences, 65, 362-81 19 http://www.abdn.ac.uk/staffpages/uploads/nhi635/ZSLpaper-kees.pdf 20 http://jncc.defra.gov.uk/pdf/461_final_web.pdf#page=78 21 http://www.int-res.com/articles/meps/200/m200p257.pdf Page 13 of 15

Site G: West of Turbot Bank Site Summary: Kober et al found this site to meet Stage 1.4 of the guidelines for black- legged kittiwake during breeding and for puffin during wintering. Designation Desired: SPA. JNCC analyses identified a number of areas within this site for designation under Stage 1.4 of the guidelines. Species: Black-legged kittiwake, Atlantic puffin Justification: The area holds a high density of black-legged kittiwake, but at 8,236 birds, roughly 0.1% of the biogeographic population, numbers do not meet Stage 1.2 of the guidelines22. A hotspot for puffin during winter was also indentified in the area23. Numbers of this species present do not exceed 1% threshold levels. However, as well as the site being required for adequacy of the network, the area has a species assemblage shown to include 32,953 birds during the breeding season, so the area also meets Stage 1.3 of the guidelines.

22 http://jncc.defra.gov.uk/pdf/461_final_web.pdf#page=65 23 http://jncc.defra.gov.uk/pdf/461_final_web.pdf#page=85 Page 14 of 15

For further information please contact:

Philip Taylor Seabird policy Officer [email protected]

Kara Brydson Head of Marine Policy [email protected]

RSPB Scotland, 2 Lochside View, Edinburgh Park, Edinburgh EH12 9DH

Tel: 0131 317 4100

RSPB Scotland is part of the RSPB, the country’s largest nature conservation charity, inspiring everyone to give nature a home.

We play a leading role in BirdLife International, a worldwide partnership of nature conservation organisations. The Royal Society for the Protection of Birds (RSPB) is a registered charity: England and Wales no. 207076, Scotland no. SC037654

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