Jeff Gibbons Scottish Government 1B-North, Victoria Quay, Edinburgh EH6 6QQ

2 May 2016

Dear Mr. Gibbons,

CONSULTATION ON DRAFT PROVISIONS FOR A WILD FISHERIES (SCOTLAND) BILL/DRAFT WILD FISHERIES STRATEGY

Thank you for asking Scottish Natural Heritage to comment on the consultation on the draft provisions for the new Wild Fisheries Bill and the draft Wild Fisheries Strategy.

As the reform process has entered the stage where the shape of the new management structure is now being determined, and draft provisions are now being considered, we look forward to continuing our engagement in the reform process.

Our response to the consultation is attached at Annex A.

If anything in this response requires clarification, please contact Professor Colin Bean in the first instance.

Yours sincerely,

Eileen Stuart Head of Policy & Advice

Scottish Natural Heritage, Caspian House, 2 Mariner Court, 8 South Avenue, Clydebank, G81 2NR Tel 0141 951 4488 Fax 0141 951 4510 www.snh.org.uk

ANNEX A

Q1. Are you content with the structure and content of the draft National Wild Fisheries Strategy?

The draft National Wild Fisheries Strategy is a high-level document which sets out the broad vision for the way in which wild fisheries should be managed in Scotland, the key overarching principles and a series of themed indicators for delivery. In particular, we welcome the desire to integrate this strategy with wider national obligations, such as delivery of relevant Natura and Water Framework Directive objectives. Explicit mention could be made of the need to adopt an ecosystem approach to the management of freshwater environments and the ecosystem services that they provide. The list of national processes could, therefore, also include a link to the Land Use Strategy 2016-2022 which was published earlier this year. More emphasis should be placed on sustainable exploitation of fish stocks in catchments which are well managed, not only for fish, but for the wide range of biota that they support and the ecosystem services that they provide. Mention, therefore, could be made of a wider range of relevant initiatives, such as the Scotland’s Biodiversity Route Map to 2020 and Flood Risk Management strategies.

We strongly support plans, mentioned in Theme 2 (Science and research), to ensure that all data will be made publically available and accessible. There are a number of options available for achieving this, such as SE-Web, the newly developed Atlas for Scotland and the National Biodiversity Network, as well as the databases currently maintained by the Scottish Freshwater Fisheries Co-ordination Centre. These can contribute to the delivery the second overarching objective of the Strategy “Promoting an effective, evidence-based fishery management through integrated data gathering, research and dissemination”. This must be supported, however, by a nationally co- ordinated programme of data gathering, possibly through the development of a national fish monitoring strategy.

Q2. Which of the current areas within the draft Strategy would you prioritise, and why?

Theme 1 outlines the activities required to deliver the key objectives of the Strategy and include the development of a national approach to the protection of fish and their habitats; the identification of national and local priorities for management; the delivery of management and conservation plans; and enforcement. Greater emphasis, therefore, should be placed on the delivery of national objectives by the network of FMOs. Whilst the activities included in Themes 2 and 3 remain important components of a fully functioning evidence-based and well managed wild fisheries sector, the necessary building blocks for the new national structure are largely contained within Theme 1.

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Q3. Do you agree with the proposed high level duties on Scottish Ministers? Yes - these are, as the draft legislation indicates, a high level commitment to promote the conservation of all species of freshwater fish and their fisheries, and to promote best practice in their management.

In terms of the overall balance of powers and duties between the national and local functions, and in particular their role in the delivery of obligations under the Habitats Directive, the role of FMO’s will have as a Competent Authority under the Habitats Regulations (perhaps replacing the Competent Authority role that is currently held by District Salmon Fishery Boards) should be made explicit.

Q4. Do you agree that the criteria set out in paragraph 31 are the correct criteria for identifying the number of FMAs?

Yes, we agree that these are the correct criteria for identifying the number of FMA’s. We offer no firm view on the number and size of FMOs. However, as suggested in our response to the previous consultation Wild Fisheries Reform (6 August 2015), we suggest that these should be of a number and size that are manageable by the staff complement within each FMO. It is presumed that a relatively common structure and set of skills will exist within each FMO to ensure that each can consistently deliver its obligations and functions across its own area and in a manner comparable with others. A common structure or skill sets may allow an indicative cost per FMO to consider alongside resources available in a prospective FMA.

Whilst we note that the potential number of FMA’s may range from 12-18, we suggest that consideration also be given to aligning FMA boundaries to the existing network of 11 Area Advisory Groups currently used by SEPA to manage delivery of WFD obligations in Scotland. Further analysis may reveal that AAG boundaries may not be the best option for developing FMAs at the desired scale, but could serve as a useful starting point.

Q5. Do you agree that the legislation should not include a specific requirement to have an FMO in every part of Scotland?

No, our repeated view is that fisheries management at a national and local level should cover the whole of Scotland. Again, in our response to the previous consultation on Wild Fisheries Reform, we stated that the FMO network should cover all of Scotland, including the Northern and Western Isles. We also stated in that response that gaps in coverage may impact the ability of the National Body to deliver its desired national and international reporting functions. This view supports those made in Recommendation 17 of the Thin Report which proposed that “The national unit should be required to ensure coverage of the whole of Scotland by a network of approved FMOs”.

Whilst we recognise that not all FMAs may have an FMO in place within this first appointment process, we think it essential that full FMO coverage is achieved to ensure that all of Scotland’s valuable fish and fishery assets benefit from the advantages of the new system. We offer two prospective mechanisms by which full coverage could be achieved below. 3

If gaps in FMO coverage occur across Scotland, then consideration could be given to enlarging an existing FMO or developing a temporary working arrangement where neighbouring FMO’s work together to cover an area where an FMO is currently absent.

Alternatively, if a gap in FMO coverage is evident after the initial FMO identification process then there could be an obligation or duty to fill this gap in the period before commencement of the next FMO appointment and plan preparation cycle. This would allow the benefits and advantages to local management to emerge but would not allow an ongoing situation where potentially important and valuable areas of Scotland’s national fish and fisheries resource do not secure the benefits and advantages that an effective FMO would bring.

Q6. Do you agree with the proposed approach to designation of FMOs?

Section 8(2) of the draft Bill makes provision for an FMO to be designated for more than one FMA. In line with our response to Q5 (above), we suggest that an option for an FMO to be designated to manage part of a neighbouring FMA, possibly in conjunction with other FMOs, could be included. It would, however, be important to ensure that the entire FMA is managed.

We fully agree with the view that view of the Stakeholder Reference group and the wider fisheries stakeholder community that form should follow function, and that the structure of each FMO should be determined by the management issues that exist within each FMA, and its size.

We note that the draft provisions neither require, nor preclude, FMOs from being constituted as charities. In our response to the consultation on Wild Fisheries Reform we indicated that, whilst charitable status offers the means of continuing on-the- ground conservation work which will help restore and protect the wider habitat, it remains unclear how such charities can carry out statutory duties (see response to Q3), and remain independent of Ministerial direction.

Q7. Do you agree with the proposed approach and timeline for approval of local fisheries management plans?

Yes, we agree that the timeline for submission of a local fisheries management plan to Scottish Ministers with a period of three months post- FMO designation, as detailed in Section 10 of the draft provisions, should be adequate. This anticipates, however, that ‘potential FMOs’ must provide an outline draft plan as part of the application process. This plan should already be set out in line with the priorities identified within the draft National Wild Fisheries Strategy. Clear guidance should, therefore, be given to ‘potential FMOs’ relating to the structure and content of such a plan at the earliest possible stage. This should include an assessment of any new plan against the conservation objectives for protected sites and species within the plan area, and take account of any plans or measures which are either scheduled or in place.

Section 10 of the draft Bill states that an FMO should show how it, “has involved those appearing to it to have an interest in the management of wild fisheries in its Area in 4 the preparation of the Plan”. This suggests that the consultation process is very much at the discretion of the FMO. Consideration could be given to ensuring that named public bodies should be mandatory consultees, and/or FMOs be required to publish a summary of the consultation comments they have received, with details of how these have been taken into account within the plan.

The ability of the National Fisheries Management Unit to review the content of 12-18 management plans within the three-month period must also be considered, as should the time taken to consult with other key stakeholders (such as SNH).

In addition to the requirement for each FMO to publish an annual report in Section 11 of the draft provisions, we feel that there may be a requirement for each FMO to produce a refreshed local fisheries management plan to align with the requirement set out in Section 3 of the draft provisions to review the National Wild Fisheries Strategy every five years. Thought may, however, be given as to whether the review period should be aligned with the six-yearly cycle used to by SNH and SEPA to report on the condition of conservation interests within designated sites and the delivery of RBMPs.

All plans should be readily accessible, and produced in a format which makes them easily available to stakeholders.

Q8. Do you agree with the proposed approach to good governance and investigation of FMOs?

Yes we agree with the proposed good governance approach. It matches those already in place within the Aquaculture & Fisheries (Scotland) Act 2013 to ensure accountability and transparency by District Salmon Fishery Boards.

In line with the good governance approach, it may be sensible to require FMOs to develop a set of service standards. This may also form part of the draft local fisheries management plan within the application process.

Q9. We seek your views on the proposed approach to the wild fisheries levy.

Funding is a key issue and it is clear that a number of options are under consideration. As set out in our response to the previous consultation on Wild Fisheries Reform, we believe that there is a clear case that those who benefit from the sport (either as proprietors/managers of other fisheries or as recreational participants) should also contribute to the management and promotion costs for their sector.

Given that financial analyses have shown that the current level of finance is not sufficient to fully fund fisheries management across Scotland, we welcome attempts to identify new funding mechanisms, either through the suggested ‘management and development levy’, rod licensing or other funding streams.

In relation to ‘other funding streams’, consideration should be given to project development and co-ordination of funding bids which involve more than one FMO, and possibly all of them. Experience has shown that project bids which have wide geographical coverage, can achieve economies of scale, and have wider ecosystem/public benefit, are often more attractive to potential funders than small, local appeals. 5

Q10. Should Scottish Ministers have the power to review the designation of FMO status?

FMO’s are required to provide annual reports (as set out in Section 11 of the draft provisions) in which they are required to set out a summary of the organisation’s activities over the last year, and a summary of the activities that it proposes to undertake in the subsequent 12 months. It would be possible to require that each annual plan should include a series of key performance indicators against which progress against National Wild Fishery Strategy objectives can be measured. This may provide a framework for identifying FMOs which are failing to deliver against agreed objectives and allow appropriate management action to be taken.

In any year there may be good reason that an FMO may not be able to deliver on a particular objective, but this should be clearly articulated within the annual report and its cause discussed with the National Fisheries Management Unit. A revision of FMO status, using the same five-year timeframe that is proposed for the National Wild Fish Strategy is reviewed and refreshed (as described in Section 3 of the draft provisions), may be a sensible way forward.

Q11. If so, what would be an appropriate period for such a review? This is covered in our response to Q10.

Q12. Do you agree that FMOs should be statutory consultees for fish farming applications?

Yes, as local managers of the wild fish resource it would appear to be wholly appropriate for FMO’s to act as statutory consultees, in the same way that DSFBs currently operate, in relation to fish farm and other relevant development applications. As custodians of high quality, locally sourced, fish and fisheries data, FMO’s will be ideally placed to feed this information into the planning and assessment process for all developments.

Q13. Should we consider whether FMOs should be statutory consultees for any other types of development?

Yes, we agree that FMO’s should be statutory consultees for other types of development, for the same reasons given in our response to Q12.

Q14. Do you agree that local conservation measures, agreed by FMOs at a local level, could be made by the Scottish Ministers without being subject to Parliamentary scrutiny?

Yes, we would agree that, where there is clear evidence that local conservation measures are necessary Scottish Ministers should have the power to act. However Scottish Ministers must maintain oversight of any activities, including conservation measures, carried out by FMO’s. This can be carried out through the annual reporting procedure which requires FMO’s to report on activities carried out during the previous year and provide detail on those which will take place during the following 12 month period. Progress against the National Wild Fisheries Strategy will be subject to Parliamentary scrutiny every five years, and the progress of FMO’s in delivering that strategy should form part of that assessment. Each report should detail the progress 6 made against a set key performance indicators which are aligned with the National Wild Fisheries Strategy.

Q15. Do you agree with the approach to conservation regulations?

Yes, the broad approach for conservation regulations set out in Part 2 of the draft provisions appear to be sensible, although there are areas where amendments could be made. These are detailed in our response to Q16 below.

Q16. We would welcome any specific comments you have in relation to section 23-32 of the draft provisions.

Section 25(b) of the draft provisions make provision of the “the alteration or removal of natural obstructions in rivers and estuaries”. Whilst we can see the attraction in the removal or easement of natural obstructions to fish movement, such as waterfalls, to open up new areas to migratory fish, such obstacles have also played a role in protecting genetically isolated populations of fish which may have colonised these upper catchment areas shortly after the retreat of ice following the last ice age. As such they may be a valuable genetic resource of high conservation value. We suggest that the wording of this section be modified to preclude the removal or easement of permanent geological natural barriers (such as waterfalls), and, if retained, restrict this activity to the potential removal of more recent or temporal ‘natural’ barriers such as timber or active sedimentary material (such as sand, gravel or boulders) which may have accumulated in a particular location as a result of riverine processes. We would advise, however, that there may be significant overlap between these provisions and those already available under CAR.

Section 25(d) could also usefully include provision for dealing with the introduction and removal of non-native species which may affect fish and fisheries, and make a direct linkage with the Section 33A of the Salmon and Freshwater Fisheries (Consolidation)(Scotland) Act 2003 and Section 14 of the Wildlife & Countryside Act 1981 (as amended) which makes it an offence to introduce fish out with their native range without a licence.

Q17. Are there specific examples of issues with the offences in the 2003 Act that we should be aware of in developing the framework for an all species management system?

This is largely covered in our response to Q16. However to this we would add the need for a clear consenting framework to be established for the introduction of ‘salmon’ into Scottish freshwaters. The Wild Fisheries Reform process provides an opportunity to incorporate this function, which is currently the responsibility of District Salmon Fishery Boards (under Section 24 of the 2003 Act), into a holistic and streamlined ‘fish introductions’ licensing framework which covers all freshwater fish species. If fish consenting is devolved to FMO’s, then the powers of Scottish Ministers (as expressed in Section 33B) of the 2003 Act which “provide for the consenting functions to be carried out by the Scottish Ministers instead of district salmon fishery boards in specified cases or circumstances” should be retained and extended to all freshwater fish species.

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Other elements on the 2003 Act which merit consideration for retention are Sections 23 (for the protection of ‘salmon’ spawning areas and, along with Section 10, the protection of their passage to these areas. We also add that the protection and access to spawning areas for native fish species other than Atlantic salmon and sea trout should also be included in any new provision.

Q18. Do you agree that the appointment of water bailiffs/wardens could be for more than one FMO and potentially nationwide?

The powers of a water bailiff currently only extend to the district of the Board which appointed them and to any adjoining salmon fishery district. This precludes water bailiffs from operating in any area outwith this area. Wardens have a more limited area of operation and are currently restricted to areas covered by Protection Orders and have no powers of arrest or to charge an offender. It makes practical sense to allow both water bailiffs and wardens to operate over a wider area, should their services be required in other parts of Scotland. These views reflect the intention, expressed in Para. 58 of the consultation document, that: “Our policy intention is to take a consistent approach to all offences across all species.”

However, this must be properly administrated and, given the wider range of fish species that they will be asked to protect, these individuals must be properly trained in relation to the management of these and recruited and appointed based on confirmation of required knowledge of all fish species protected.

Q19. Do you agree that the appointment of bailiffs and wardens should continue to take place at both a local or national level?

Yes, it makes sense that FMO’s should be able to appoint individuals locally that can play a role in local fish and fisheries protection. However, it can be argued that the power to appoint bailiffs, with the power to deliver enforcement measures in other parts of the country, should be retained by Scottish Ministers.

Q20. Do you agree that we should consider a new title for the role of water bailiff?

We offer no view

Q21. Do you agree that there are advantages in having a second tier of enforcement officer, primarily focussed on checking permits and providing information?

Much would depend on what this second tier of ‘enforcement’ will be expected to do. With an enhanced remit to protect a wider range of fish and fisheries, the development of a second tier of enforcement or control could be advantageous. There should not, however, be any overlap with the enforcement functions of water bailiffs and the separation of duties should be clear to all appointees and made clear to the public in all instances when dealing with such officers.

Q22. What issues in relation to powers and enforcement do you consider are barriers to providing appropriate protection to our wild fisheries and fishing? 8

The limited powers of water bailiffs and wardens to exercise their duties beyond the geographical limits of their appointment is one barrier which can be overcome in any new enforcement system.

Another barrier may be the recruitment and retention of individuals and a cultural shift away from the protection of salmonids only. These can be overcome by the provision of training/CPD and appropriate remuneration for full-time professional staff.

Q23. Are the terms used throughout the draft provisions clear and unambiguous?

Yes

Q24. What do you consider would be the key resource issues for an FMO under the proposed new regulatory structure?

The key resource issue for any FMO will be the recruitment of people with appropriate skills (e.g. trained fisheries management professionals and others who can deliver across the remit of the FMO), financial resources to provide appropriate office space, salaries and routine operating expenses; and resources to deliver national strategic objectives through the local and national fisheries plan.

Q25. What other information do we need to consider in developing a BRIA for the Bill when it is laid before the Scottish Parliament?

The consultation document makes it clear that engagement with stakeholders is still ongoing and that the publication of a draft BRIA would not be beneficial at this stage. It is unclear, therefore, what additional costs will be needed to change the current system of fisheries management to a new structure which includes an all species remit, and how any shortfall may be bridged over both the short, medium and long- term.

When carrying out the assessment process, it will be important to recognise that there exists significant potential for overlap to occur between the duties expected of any the new National Fisheries Management Unit with activities currently carried out by SNH which may inform the way in which some fisheries are managed. One example may be the possible need to ensure that any new national fish monitoring strategy aligns with the fish monitoring requirements of SNH. Opportunities may also exist to streamline licensing functions (such as those relating to fish introductions and predator control) to achieve best value through reduced administrative costs.

We hope to continue to contribute to these discussions with Marine Scotland, as the Wild Fisheries Reform process progresses.

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Consultation on proposed conservation measures to introduce a licensing system for killing wild salmon in Scotland

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