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The promise of law Assessing the Cardigan Bay The Habitats Directive is the ‘‘cornerstone of the EU’s biodiversity policy’’6 and was SACs intended to establish a network of Special Areas of Conservation (SACs) across the EU, known Cardigan Bay in and adjacent waters are important for marine wildlife and have collectively as Natura 2000. In various areas designated as special areas of conservation (SACs). Here we consider the addition, EU member states are extent to which bottlenose dolphin SACs can be said to be effective. also required to guarantee the strict protection of all species MARK PETER SIMMONDS, MICK GREEN, VICKI JAMES, within their natural range that SONJA EISFELD & ROB LOTT are listed on the Directive’s Annex IV and this includes all cetaceans. Sites for cetaceans In the late 1980s, Cardigan Bay became the focus of efforts to improve marine As soon as a Natura site protection using the EU Habitats Directive (94/43/EEC) to designate Special Areas is designated, particular of Conservation (SACs).1 By 2003, three UK sites had been identified as candidate obligations apply. Member sites for the bottlenose dolphin, Tursiops truncatus, including two in Welsh waters. States are required to establish However, writing in ECOS in 20062, Green expressed some scepticism about the the necessary conservation effectiveness of these measures. More recently, Hoyt3 noted that “the idea that measures, involving appropriate whales, dolphins and porpoises need protected habitat is fairly new, even among management plans which MPA practitioners… [but] In general the more that is learned about cetaceans, correspond to the ecological the more it becomes evident that populations of some species favour or return requirements of the habitats regularly to familiar places… which may be called home ranges, breeding or and species present on the sites and are also required to take appropriate steps feeding grounds”. to avoid the deterioration of natural habitats and habitats of species, and the significant disturbance of species for which areas have been designated. Eighteen cetacean species have been recorded in Welsh waters and several exhibit a high degree of residency, including the bottlenose dolphin.A,4 By 2003, Wales currently has sevenn marine SACs. The Cardigan Bay SAC site was proposed one SAC (centred off the coast of in ) had been designated in 1995 and, two years later, the site was submitted to the European Commission for them and, since then, they have also been included as a feature that requires for consideration. Some moderation followed and new features for management management in the Pen Llynˆ a’r Sarnau SAC (see map). There is a further SAC were added. On 7 December 2004, the European Commission formally adopted the designated for bottlenose dolphins in UK waters and this is in the Moray Firth UK list of Special Areas of Conservation, including the Welsh proposals. The SAC in Scotland. stretches from Ceibwr Bay in , to in Ceredigion, extending almost 20 km from the coast and covering about 1000 km2 of sea. It includes Harbour porpoises, Phocoena phocoena, are also relatively common in Welsh bottlenose dolphins as a ‘primary feature’ and its management scheme, in place waters. Like the bottlenose dolphins, they also qualify for the establishment of since 2001, aims to manage activities taking place within and near the SAC in SACs, but at the time of writing only one marine SAC in Northern Ireland has been order to protect the dolphins and their habitat from any adverse effects that human proposed in the UK as a candidate site for them. Porpoise calving and nursing activities may have on them. The management scheme was expanded in 2008 occurs in Cardigan Bay. de Boer5 reported that 22% of sighting of porpoises from to include: sandbanks which are slightly covered by sea water all the time; reefs; were of mother-calf pairs. There is a also a third species that has submerged or partially submerged sea caves; the grey seal (Halichoerus grypus); recently been shown to exhibit site-fidelity in Welsh waters: the Risso’s dolphin, the sea lamprey (Petromyzon marinus); and the river lamprey (Lampetra fluviatilis). Grampus griseus. Risso’s dolphins however do not currently qualify for the designation of SACs under the Habitats Directive. Other regularly encountered The Pen Llynˆ a’r Sarnau SAC covers the Lleyn Peninsula and the Sarnau reefs as well species include the short-beaked common dolphin, Delphinus delphis, and the as the large estuaries along the coast of Meirionnydd and north Ceredigion and is minke whale, Balaenoptera acutorostrata.D situated just north of the Cardigan Bay SAC. In this SAC bottlenose dolphins is only

46 47 ECOS 34(3/4) 2013 ECOS 34(3/4) 2013 one of a number of ‘qualifying features’, the SAC’s primary features are reefs and estuaries. The Pen Llynˆ a’r Sarnau management plan is still in the process of being updated to show what actions the additional features, including the bottlenose dolphins, might require for their conservation.

Issues at sea The Habitats Directive does not prohibit development adjacent to or even within the designated sites. However, any plan or project not directly connected with or necessary to the management of the site, but likely to have a significant effect thereon, either individually or in combination with other plans or projects, is subject to an ‘Appropriate Assessment’ (AA) of its implications for the site in view of the site’s conservation objectives. One test of the effectiveness of the SACs will be whether these AAs are being conducted and the extent to which they are positively affecting conservation. Whilst the Directive does not define what constitutes a plan or project, a preliminary ruling by the ECJA suggests that the terms ‘plan’ or ‘project’ should be interpreted broadly, not restrictively. More recently, a UK High CourtB decision reinforced this interpretation and that any action that could potentially have an impact should be considered a plan or project and an AA initiated.

The Directive also states that a plan or project can be carried out for imperative reasons of overriding public interest even if the assessment of the implications for Bottlenose dolphins in Cardigan Bay the site was negative. However, the Member States have to take all compensatory Photo: Sonja Eisfeld/WDC measures necessary to ensure that the overall coherence of Natura 2000 is protected. The notion of “imperative reasons of overriding public interest” is vague as are the Marine Renewable Energy “compensatory measures” required of the national authorities. Since 2000, the UK Government has conducted three rounds of offshore wind farm licensing for projects in waters around England, Wales, Scotland and Northern The grounds upon which development activities may be permitted in cetacean SACs Ireland; the first wave and tidal energy leasing round was in 2010. Until quite remain uncertain. Nevertheless, certain key industrial activities have been identified recently, offshore wind farms were mainly constructed in near-shore waters, within within the Guidelines for the designation and management of specially protected approximately 5km of the coast and now very large developments are planned marine areas7 for which supervision will be required when carried out in proximity further off the coast and in deeper waters.12 Currently there are three operational to or within SACs. These include ecotourism activities, oil and gas exploitation, marine wind farms to the north of Wales. Since 2010, plans for six further wind active military and civilian sonar use, vessel-based noise and acoustic by-catch farms have been initiated, three of which are in the Round 3 Zone in the Bristol mitigation devices. Accordingly, the development of localised guidelines to address Channel off the South Wales coast (the extensive Atlantic Array proposal was such activities may be considered an important aspect of SAC management on the shelved by RWE npower as this article went to press), and three off the north part of the Member States. Wales coast, two of which are in the Round 3 Zone. A wave energy site is currently in construction in Pembrokeshire, 5 km offshore from St. Anne’s Head, Cetaceans in Cardigan Bay can be expected to be affected by the same general issues and is expected to be in operation in late 2012. This will use an ‘overtopping as those encountered elsewhere in Europe and beyond. The management plan for device’; holding ‘captured’ water in a reservoir above sea level before being released the Cardigan Bay SAC defined areas of concern relating to the bottlenose dolphins through low-head turbines. Plans for the Severn Barrage in the Bristol Channel were as: waterborne disturbance, collision, pollution from artificial or toxic materials, prey withdrawn in 2010 due to the high cost involved, along with environmental impacts depletion, bycatch and noise pollution.8 There are a number of sources for further on internationally important nature conservation sites.13 Tidal current devices may information about threats to cetaceans including Bejder et al.(2006)9, Weilgart be held in place by various methods including seabed anchoring, a gravity-base or (2007)10, and Steckenreuter et al. (2012).11 driven piles or via mooring lines.14, 15 One tidal energy site has been generating power since 2003 in the Bristol Channel and Tidal Energy Limited currently have plans for Particular issues in the Cardigan Bay region are discussed in the paragraphs below, two tidal sites off Pembrokeshire. One was approved in 2008 in Ramsey Sound and in no particular order. plans for the second off St David’s Head were announced in 2012.16 The potential

48 49 ECOS 34(3/4) 2013 ECOS 34(3/4) 2013 impacts of marine renewable developments on cetaceans have been considered in Wright et al17, Simmonds and Brown18, Dolman and Simmonds19, Simmonds et al20, and Wilson et al 21 and also in the report from the House of Commons Energy and Climate Change Committee22. The UK’s 2009 Strategic Environmental Assessment (SEA) of Offshore Energy commented that “In general, marine mammals show the highest sensitivity to acoustic disturbance by noise generated by offshore wind farms and by hydrocarbon exploration and production activities”.23

Scallop dredging Low level scallop dredging has been carried out in Cardigan Bay for many years (Green, pers. obs.). This changed in more recent times seemingly following closures in other areas and by 2006 up to 60 scallop dredgers were reported operating in the Bay at any one time, including within the boundaries of the Cardigan Bay SAC. Many changes to this fishery followed and, in 2009, the Scallop Orders were reviewed and the Welsh Assembly Government realised they would have to undertake consultations. The fishery was closed for the second half of 2009 and a complaint was made to Europe by a consortium of non-governmental organisations. This focused on the lack of an AA in issuing Scalloping Licenses. In 2010, the fishery was partially reopened with a significant part of the Bay declared off limits to the fishery but remarkably a sizeable part of the SAC itself left open and this continues to be the case. No AA has been conducted. In April 2012, two fishing boat owners and a skipper were fined a total of £29,000 for A view to Bardsey Island with bottlenose dolphins in foreground. scallop-dredging inside that part of the Cardigan Bay SAC that remains closed to Photo: Sonja Eisfeld/WDC such activity. Slipways. All licensees are provided with a copy of a code of conduct designed to give members of the public information about how to act in the vicinity of cetaceans to The potential threat from scallop dredging to cetaceans has been much debated. avoid disturbing them. Ceredigion County Council has monitored compliance with An opinion from CEFAS in 2009 concluded that under the “current technical their Code since 1994.27 The latest report 28 showed that of 494 boat encounters conservation measures in place” there was no risk to the Bay’s bottlenose dolphins. examined for compliance, this was found to be generally high (95% at one site). However, a fleet of 60 dredgers plying the waters of the Bay might reasonably be The associated public awareness programme was also assessed to be working well expected to cause much noise disturbance and also affect the dolphins’ food chain. at the key site of New Quay. Most cases of non-compliance involved vessels moving In 2013, Bangor University is proposing ‘research dredging’ to establish whether too fast when close to dolphins, with speed and motor boats the main offenders. intensive scalloping can take place more widely within the SAC. The report concluded that compliance with the code significantly reduced the incidence of negative response behaviours in the dolphins. Oil and Gas development The UK Government has been issuing licences for oil and gas exploration since Waste Discharge 1964.24 The environmental effects associated with exploration activity, construction, There is a discharge from a shell-fish factory into the SAC at New Quay and this had production and transport of equipment, materials and products are potentially been suggested as both a concern and a possible source of enrichment. 29 many.25,26 In the early 1980s, oil and gas exploration moved into the UK’s inshore waters and during the twelth licensing round, licences were issued for a company Cetacean status to drill in waters adjacent to Bardsey leading to a complaint to Europe. However, in A metric that might be used to assess effectiveness is whether the local bottlenose 2012, licensing was reopened in this area but not adjacent to the Cardigan Bay SAC. dolphin population is being maintained at favourable conservation status (FCS); which is when a population is being maintained on a long-term basis, its natural Boat Disturbance range is not being, and is not likely to be, reduced and there is sufficient habitat to The Cardigan Bay Website calls on boat users to follow the ‘Marine Codec’ and support it in the long term. it also calls for action on marine litter which ‘may choke’ marine mammals.24 The Ceredigion County Council requires (as a ‘Heritage Coast’ initiative rather than one Over 300 bottlenose dolphins are known to be using Cardigan Bay, around 200 in relating directly to the SAC) the licensing of all personal craft launched from Council any one year, with numbers increasing throughout the summer and reaching a peak

50 51 ECOS 34(3/4) 2013 ECOS 34(3/4) 2013 in late September and October.30 The bottlenose dolphin is the next most frequently Public outreach and educational activities may also have benefits for the dolphins and recorded species (after the harbour porpoise), with a predominantly coastal distribution, the SAC website is a potentially important educational initiative. The various ‘dolphin although low densities have been recorded offshore, particularly in St George’s Channel centres’ in Cardigan Bay may also have been encouraged by the presence of the SAC. and the southwest sector of the study area.31 The main concentrations of sightings were The Cardigan Bay Code of Conduct and efforts to measure its implementation – even southern Cardigan Bay but with moderately high sighting rates extending north into given that this was originally introduced as a Heritage Coast initiative – may also , although the species also occurs off the north coast of Wales, particularly have been encouraged by the SAC. In this regard, the absence of a SAC officer for north and east of Anglesey. In summer, the dolphins occur mainly in small groups near Cardigan Bay for a period of time may have undermined the initiative. the coast, centred upon Cardigan Bay, dispersing more widely and generally northwards, where they may form very large groups in winter. However, the species can be seen Conclusions and recommendations at any time of the year throughout Welsh coastal waters. No fundamental change in There is some evidence that the Cardigan Bay SACs have been useful to dolphin distribution has been observed since 1990 and bottlenose dolphins breed throughout conservation, principally by providing a mechanism to challenge developments. their Welsh range, with calves observed in most months of the year. Only small numbers However, the designation still does not appear to provide any incentive to developers have been recorded stranded.27 to avoid the area in the first place and pressures are mounting. In theory – and in the absence of other designations further to the recent decision by the Welsh Recent data suggest lower numbers in both the Cardigan Bay SAC and the whole government to hold off on designating other marine conservation zones - they of the Bay during 2011 than most previous years.32 Results from an open population could become more important. model indicate that the probability of emigration from Cardigan Bay, and the probability that animals will stay out of the site, have increased. This suggests that Apparent SAC failings, include the question of how precisely they relate to fewer dolphins are currently using Cardigan Bay. The Sea Watch Foundation also development within and adjacent to the areas that they define. The status of the concludes that increased activity off in summer includes individuals bottlenose dolphin as a qualifying feature only in the northern SAC does not seem previously showing a strong site fidelity to Cardigan Bay, and supports the mark- to imbue it with any direct protection, but this may improve when the management recapture results showing that fewer dolphins may now be using Cardigan Bay. plan for this site is updated. However, they also report that the area of the Cardigan Bay SAC in particular has seen increased levels of residency, and remains important for mothers and young SACs in the UK can generally be graded as IUCN Category VI management areas33; calves, exhibiting a reasonably healthy birth rate (5.75% for a closed population this means that they are protected areas with sustainable use of natural resources model and 7.73% for an open population model). aimed at conserving natural resources alongside “low level non-industrial use of natural resources compatible with nature conservation”. Hoyt29 has already queried So, the status of the bottlenose dolphin population is currently equivocal with whether this low level of protection can be expected in the longer term to be neither a precipitous decline nor an increase apparent. The core area (i.e. the SAC) effective.D In the case of Cardigan Bay, these sites are also relatively small and any remains important for the population, although the possible movement of some assessment of their effectiveness is of limited help to the assessment of other types part of the population away highlights the need for careful ongoing monitoring. of MPAs. SACs, however, are not universally IUCN Category VI and in fact can even function, due to their generally small size, as IUCN Category I highly protected Other conservation-related activities zones within a larger MPA framework or network. The controls on scallop dredging and limitation of the spread of oil and gas development into at least one of the dolphin SACs would seem likely to be beneficial Green2 commented that there is little that could be seen in terms of additional to the dolphins. However, it is unclear why the latter industry is prohibited from the protection within the SACs compared to the wider sea area, however, the bottlenose Cardigan Bay site but has recently potentially been allowed into the Pen Llynˆ a’r dolphins continue to use the sites, including for breeding purposes. Whilst a core Sarnau SAC. This may be because the licensing authority takes the view that as the sub-population of bottlenose dolphins seems to remain faithful to Cardigan Bay, dolphins are only a qualifying feature. More positively, the process of assessment of potential explanations for the wider changes in distribution include changes in potential threats to the dolphins followed in the Cardigan Bay management plan prey availability and/or increased anthropogenic disturbance. We agree with the has significant potential to assist in the wise management of the SAC. recommendation from the Sea Watch Foundation that in order to assess whether this is the start of a negative trend, further monitoring over a number of years Conservation Actions focused on other SAC features may be beneficial to the encompassing the entire field season from at least April until October is needed. dolphins by helping to maintain habitat quality and prey. In addition, we believe that the advent of the SACs has helped to generate relevant research funds and The Welsh Government is entrusted with an exceptional richness of marine note there is a legal requirement to report on status of features to the European biodiversity to protect and have waters where many MPAs (in the form of SACs) Commission every six years.28 are now in place. Provisions that are intended to protect bottlenose dolphins may

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18. Simmonds, M.P., Brown, V.C., Eisfeld, D., and Lott, R. 2010. Marine Renewable Energy Developments: help other cetaceans in these waters, including Risso’s dolphins. However, there benefits versus concerns. Paper submitted to the Scientific Committee of the IWC. SC/62/E8. is also unprecedented industrial development happening in Welsh waters with 19. Dolman, S. J. and Simmonds, M. P. 2010. Towards best environmental practice for cetacean conservation in unclear consequences for cetaceans and other fauna. Future research in this region developing Scotland’s marine renewable energy. Marine Policy, 34, 1021–1027. relating to all the local cetacean populations, and the threats that they face, will 20. Simmonds, M.P. and Brown, V.C. 2010. Is there a conflict between cetacean conservation and marine be essential to underpin their conservation and so will developing appropriate renewable-energy developments? Wildlife Research, 2010, 37, 688–694. constraints on activities that may threaten them or displace them from core habitat 21. Wilson, J. C., Elliott , M., Cutts, N. D., Mander, L., Mendão, V., Perez-Dominguez, R., Phelps, A. 2010. areas. This means that the SAC management regimes need to be comprehensive, Coastal and Offshore Wind Energy Generation: Is It Environmentally Benign? Energies 3: 1383-1422. precautionary and adhered to. 22. House of Commons Energy and Climate Change Committee. 2012. The Future of Marine Renewables in the UK Eleventh Report of Session 2010–12. Volume I. Available at http://www.publications.parliament.uk/ pa/cm201012/cmselect/cmenergy/1624/1624.pdf. Last visited 17/5/2012. References and notes 23. DECC. 2009. Offshore energy strategic environmental assessment. Department of Energy and Climate Change. A. Landelijke Vereniging tot Behoud van de Waddenzee, Nederlandse Vereniging tot Bescherming van Vogels Available at http://www.offshore-sea.org.uk/site/scripts/news_article.php?newsID=39 Last visited 17/5/2012. v. Staatssecretaris van Landbouw, Natuurbeheer en Visserij, Case C-127/02 24. Green M and Simmonds M. 2008. Riding the Waves – Lessons from Campaigning on oil and gas. ECOS 29(3/4) B. R (on the application of Akester and Melanaphy) v Defra & Wightlink Limited (Wightlink) 25. Neff, J. M., Rabalais, N. N. and Boesch D. F. 1987. Offshore oil and gas development activities potentially C. There is a Ceredigion Code of Conduct for boat users and also a Cardigan Bay Code. causing long-term effects. Pages 149-174. In D F Boesch & N N Rabalais (Eds) Long Term Environmental D. N.B. Our understanding is that the protection of the dolphin population for which any SAC has been Effects of Offshore Oil and Gas Development, Elsiever, London. established extends to the population’s full range (see 92/43/EEC and discussion in Green et al., 2012). 26. JLOGEC. 1995. Polluting the Offshore Environment. Newtown. Available at: http://www.savecardiganbay. org.uk/word/oil_gaspollution.doc. Last visited 17/5/2012. 1. Green, M. and Simmonds, M. 2003. Cardigan Bay and its conservation importance. Natur Cymru 7: 36-40. 27. CCC 2012. Ceredigion County Council website: http://www.ceredigion.gov.uk/index.cfm?articleid=9025 2. Green M. 2006. SACs of Promise? – Marine SAC protection. ECOS 27/2. Last visited 10/5/2012. 3. Hoyt, E. 2011. Marine Protected Areas for Whales, Dolphins and Porpoises: A world handbook for 28. Allan L., Green M. and Kelsall K. 2010. Bottlenose dolphins and boat traffic on the Ceredigion Coast, West cetacean habitat conservation and planning. Earthscan/Taylor & Francis, London and New York. 464 pp. Wales, 2008 and 2009. Ceredigion County Council. 4. Baines M.E. and Evans P.G.H. 2012 Atlas of the marine mammals of Wales . CCW Marine Monitoring 29. Dermody, N. 2012. Cardigan Bay bottlenose dolphins ‘learn factory whelk waste times for food’ BBC News Report No. 68. 2nd edition. website: http://www.bbc.co.uk/news/uk-wales-mid-wales-18020502. Last visited 17/5/2012. 5. de Boer, M., Morgan Jenks, M., Taylor, M. And Simmonds M. 2002. The small cetaceans of Cardigan Bay. 30. Cardigan Bay Website, 2012 http://www.cardiganbaysac.org.uk/?page_id=72 Last visited 7/5/2012. British Wildlife, April 2002: 246-254. 31. Baines M.E. and Evans P.G.H. 2012 Atlas of the marine mammals of Wales . CCW Marine Monitoring 6. European Commission. 2010. Guidance document: Wind energy developments and Natura 2000. October Report No. 68. 2nd edition. 2010. http://ec.europa.eu/environment/nature/natura2000/ management/docs/Wind_farms.pdf 32. Veneruso, G. and Evans, P.G.H. 2012. Bottlenose Dolphin and Harbour Porpoise Monitoring in Cardigan 7. CEC, 2007. Commission of the European Community (CEC). 2007. Guidelines for the establishment of the Bay and Pen Llynˆ a’r Sarnau Special Areas of Conservation. CCW Monitoring Report No. 95. 66pp Natura 2000 network in the marine environment. European Commission DG Environment. 33. Hoyt, E. 2011. Marine Protected Areas for Whales, Dolphins and Porpoises: A world handbook for 8. CBSAC, 2008. Cardigan Bay Special Area of Concervation Management Scheme. 2008. http://www. cetacean habitat conservation and planning. Earthscan/Taylor & Francis, London and New York. 464 pp cardiganbaysac.org.uk/pdf%20files/Cardigan_Bay_SAC_Management_Scheme_2008.pdf Last visited 14/5/2012 Mark Peter Simmonds is Senior Associate Marine Scientist at the Humane Society International. 9. Bejder, L., Samuels, A., Whitehead, H., Gales, N., Mann, J., Connor, R., Heithaus, M., Watson-Capps, J. [email protected] J., Flaherty, C. and Krützen, M. 2006. Decline in relative abundance of bottlenose dolphins (Tursiops sp) exposed to long-term disturbance. Conservation Biology. 20(6): 1791-1798. Mick Green is Director of Ecology Matters Trust. 10. Weilgart, L.S. 2007. The impacts of anthropogenic ocean noise on cetaceans and implications for Vicki James, Sonja Eisfeld and Rob Lott are with Whale and Dolphin Conservation. management. Canadian Journal of Zoology: 85(11): 1091-1116. Thanks to Sarah Dolman and Erich Hoyt for their comments on an earlier version of this paper. 11. Steckenreuter, A, Möller, L., Harcourt, R. 2012. How does Australia’s largest dolphin-watching industry Diolch yn fawr. affect the behaviour of a small and resident population of Indo-Pacific bottlenose dolphins? Journal of Environmental Management 97: 14 - 21. 12. Simmonds, M.P. and Brown, V.C. 2010. Is there a conflict between cetacean conservation and marine renewable-energy developments? Wildlife Research, 2010, 37, 688–694. 13. Department of Energy and Climate Change (DECC). 2010. Severn Tidal Power Feasibility Study: Conclusions and Summary Report. Available at http://www.decc.gov.uk/assets/decc/What%20we%20 do/UK%20energy%20supply/Energy%20mix/Renewable%20energy/severn-tp/621-severn-tidal-power- feasibility-study-conclusions-a.pdf July 2012 14. Wright, D., Brown, V., Simmonds, M.P. 2009. A Review of Developing Marine Renewable Technologies. Paper submitted to the Scientific Committee of the IWC. IWC/SC/61/E6. 15. EMEC, 2012. European Marine Energy Centre. http://www.emec.org.uk/tidal_devices.asp Last visited 16/5/2012. 16. Tidal Energy Limited. 2012. http://www.tidalenergyltd.com/?p=1112. Last visited 17/5/2012. 17. Wright, D., Brown, V., Simmonds, M.P. 2009. A Review of Developing Marine Renewable Technologies. Paper submitted to the Scientific Committee of the IWC. IWC/SC/61/E6.

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