Aquaculture - Acoustic Deterrent Device (ADD) use: parliamentary report

Chapter 4. Sufficiency of monitoring acoustic deterrent device use within the aquaculture sector

1. Introduction

Monitoring can be defined in a number of ways but for the purpose of this section we consider monitoring as being the collection of information on ADD use at finfish farms for a specific purpose.

As stated in the previous chapter ("Extent of ADD use in the aquaculture sector"), no central database exists where information on ADD use at Scottish finfish farms is held. Instead, information is largely limited to a number of discrete and disparate data sources held by the industry itself and regulatory or planning organisations for a specific function. As part of these processes, data may be gathered, and some cases reported upon, although how this takes place is determined by the relevant authority.

This chapter provides an overview of current processes with a requirement to gather and hold data on ADD use. The sufficiency of these processes will be considered in terms of their ability to understand the distribution of ADD use (and as a secondary function to assess the potential for impacts on seals and cetaceans). Where improvements could be made, these will be set out.

2. Fish Farming Businesses (Record Keeping) (Scotland) Order 2008

Requirement to hold information in relation to containment measures

The Fish Farming Businesses (Record Keeping) (Scotland) Order 2008 sets out the records which must be compiled and retained by those engaged in the business of fish farming in respect of each site in which they farm fish. Schedule 2 of that Order addresses the records which must be kept in relation to containment, prevention and recovery of escape of fish. Schedule 2, paragraph 8 requires finfish farms to retain records concerning anti-predator measures undertaken, providing specifically that records must address:

"A record of any anti-predator measures undertaken including-

(a) the type and location of each net, fence and scarer deployed;

(b) the use of lethal means by any person involved in operations on the site; and

(c) any assessment of risk of escape of fish carried out."

Records pertaining to Schedule 2 are required to be kept for at least three years and must be available for inspection by Fish Health Inspectors who are appointed by the Scottish Ministers to act as inspectors under the Aquatic Animal Health (Scotland) Regulations 2009 and Aquaculture and Fisheries (Scotland) Act 2007.

Practical application of Schedule 2

At inspection, measures for the containment and prevention of escape of fish are checked for compliance with the Aquaculture and Fisheries (Scotland) Act 2007. Inspections are not restricted to any particular point in production. Farms are inspected according to a risk based surveillance scheme primarily to measure compliance with the Aquatic Animal Health (Scotland) Regulations 2009 (with regard to the risk of incidence or spread of listed diseases), although containment and sea lice inspections are carried out concurrently where appropriate. Targeted cases regarding containment, on up to 10% of fish farm sites annually, are carried out where escapes have occurred or where there is considered to be an increased risk of loss of containment. The criteria used to measure the risk of containment issues arising are:

• Subscription to the industry's Code of Good Practice for Scottish Finfish Aquaculture;
• Incidences of previous escape events or circumstances which give rise to a significant risk of escape on or in the vicinity of the site;
• Incidences of previous escape events or circumstances which give rise to a significant risk of escape on or in the vicinity of the sites operated by the business;
• Incidences of damage to site equipment by predators.

Both on-site observations and examination of records are used to undertake this requirement. The information is recorded on a digital form and both current and historical case information is available.

In terms of information held in relation to Schedule 2 of the Fish Farming Businesses (Record Keeping) (Scotland) Order 2008, the underlying records from the farm are not routinely held by fish health inspectors either historically or currently. Instead, only information on whether the records were maintained and available for inspection, along with any deficiencies which may require remedial action, is held.

3. Town and Country Planning (Scotland) Act 1997 (as amended)

ADDs, as a non-lethal management measure used to address seal predation are, when placed for the purposes of fish farming, considered as equipment under the Town and Country Planning (Scotland) Act 1997 (as amended) and their installation is a key consideration of the planning process and usually taken into account when determining applications. However, in the past, ADDs were sometimes considered to be a part of the equipment set-up that in some circumstances could be changed, or added, to finfish farms as a non-material variation. In these circumstances, such changes may therefore have not been recorded within the planning process.

As will be discussed in more detail in the following sections, some planning authorities apply specific conditions in relation to the use of ADDs (or wider non-lethal measures) in planning consent. For example, some authorities include specific conditions on the planning consent regulating the use of ADDs (e.g., adherence to deployment plans, no ADDs permitted in certain areas, or only specific devices permitted) while others include no specific conditions.

Historically, where planning conditions relevant to ADDs have been included, there has not been a requirement to hold and submit information in relation to these planning conditions. However, with regard to sites within/adjacent to the Inner Hebrides and the Minches SAC for harbour porpoise for example, local authorities are increasingly using planning conditions requiring the development of an ADD deployment plan and a requirement to submit information on ADD use to the local authority, either at a specified point in time or upon the request of the local authority. These deployment plans are largely in their infancy and it is not clear whether planning authorities have sought inspection of any log for ADD activity. Some local authorities may face challenges in effectively monitoring such returns due to a lack of resource and the necessary in-house technical expertise.

4. Additional sources of information

This section considers the circumstances in which information on ADDs has been provided to date for a specific function, or where ADD data may be provided in the future.

Marine (Scotland) Act 2010

The Animals and Wildlife (Penalties, Protection and Powers) (Scotland) Act 2020 amended Part 6 of the Marine (Scotland) Act 2010, removing two licensing grounds on which Scottish Ministers could grant licences authorising the taking or killing of seals and making other, associated amendments. The repealed licensing grounds were contained previously within section 110(1)(f)-(g) of the Marine (Scotland) Act 2010 and related to the protection of the health and welfare of farmed fish, and the prevention of serious damage to fisheries or finfish farms, respectively. As a consequence of this amendment, section 110(2)-(3) of the Marine (Scotland) Act 2010 was also repealed, as it related to the information that the Scottish Ministers were to have regard to before granting a seal licence under section 110(1)(g).

Before it was repealed, section 110(2)(b) of the Marine (Scotland) Act 2010 had required the Scottish Ministers before granting a seal licence under section 110(1)(g)^[4] to have regard to any information that they had in relation to:

"the effectiveness of non-lethal alternative methods of preventing seal damage to the fishery or fish farm concerned or to any other fishery or fish farm which is in the vicinity of, or which is of a similar type to, the fishery or fish farm concerned."

In order to fulfil this function, applicants for a seal licence under section 110(1)(g) were required to provide Marine Scotland-Licensing Operations Team, acting on behalf of Scottish Ministers, with information on such non-lethal measures for the purposes of assisting them to decide whether to grant the seal licence.

This information was not used to monitor the use of ADDs, but rather to assist in informing seal licensing decisions. Following the repeal of section 110(2), which came into force on 1 February 2021, this information will no longer be collected in relation to finfish farms.

The Conservation (Natural Habitats, &c.) Regulations 1994

In accordance with regulation 44 of the Conservation (Natural Habitats, &c.) Regulations 1994 (the Habitats Regulations), in certain circumstances licences may be granted by the appropriate authority for an application to undertake activities which would normally constitute an offence against EPS.

To the extent that the Scottish Government may grant any EPS licences concerning the use of ADDs, consideration needs to be given as to the inclusion of a licence condition concerning the reporting of information on ADD usage.

5. Conclusions

As described, certain processes are already in place for finfish farms to collect and hold information on the use of non-lethal deterrents, including ADDs, and to provide sight of this information to the relevant authority as requested. The level of information required to be held varies depending on the specific purpose.

On that basis, the existing processes in place to gather and inspect information (e.g., measures for the containment and prevention of escape of fish which are checked for compliance with the Aquaculture and Fisheries (Scotland) Act 2007) are sufficient for the specific purposes of these processes.

However, the level of information gathered through these processes is insufficient to determine the distribution of ADD use at finfish farms, which is required to monitor trends in usage as well as understanding the potential for disturbance impacts on marine mammals. The Scottish Government will therefore work with the sector and regulators to establish a more systematic process for gathering information on ADDs where they are used at Scottish finfish farms.