EPS licences: EIR release

Information requested

Question 1: What peer-reviewed evidence have MS used to determine that cetaceans are evenly distributed?

Question 2: Do MS agree that the model can only be used to determine the probability that cetaceans will be disturbed by each ADD at any one moment in time? If MS do not agree, please give your reasons in detail. Given that cetaceans are mobile, how does MS propose to modify the model so that it can be used to determine how many cetaceans would be disturbed at each site if the tracks of each animal were considered over a week, a month or a year?

Question 3: Please will MS explain in detail the disparity between the applicant’s predicted distances for TTS, PTS and disturbance and those distances derived from peer-reviewed scientific literature. Would the legal requirement to apply the precautionary principle mean that MS should use the more precautionary figures?

Question 4: Please supply all the information MS holds to enable them to decide whether efficient netting systems including double-skinned anti-predator nets are satisfactory alternatives to the use of ADDs? If MS decides that such nets are not satisfactory alternatives to ADDs please give your reasons in detail.

Question 5: What percentage of the Inner Hebrides and Minches (i) porpoise, (ii) minke whale and (iii) bottlenose dolphin SAC area would MS consider acceptable to be ensonified above 120 μPa rms by ADD(s) before MS decided in a Habitats Directive Article 6(3) appropriate assessment that ADD use was adversely affecting the integrity of the SAC ?

Question 6: What percentage of the Inner Hebrides and Minches (i) porpoise , (ii) minke whale and (iii) bottlenose dolphin SAC population would MS consider acceptable to be ensonified above 120 μPa rms by ADD(s) before MS decided in a Habitats Directive Article 6(3) appropriate assessment that ADD use was adversely affecting the integrity of the SAC ?

Question 7: Please supply all correspondence between MS, NatureScot and Kames for the past 3 years about this EPS Licence application.

Question 8: Please supply all correspondence between MS, NatureScot and TSSC for the past 2 years about Predator control, ADDs and EPS licences for the proposed farm at Little Colonsay

Response

The answers to your questions are provided below.

Question 1: What peer-reviewed evidence have MS used to determine that cetaceans are evenly distributed?

While our aim is to provide information whenever possible, in this instance the Scottish Government does not have some of the information you have requested. Therefore we are refusing this part of your request under the exception at regulation 10(4)(a) of the EIRs. The reasons why that exception applies is because we do not hold any information suggesting that cetaceans are evenly distributed.

This exception is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exception. We have found that, on balance, the public interest lies in favour of upholding the exception. While we recognise that there may be some public interest in information of the type you have queried in question 1 above, clearly we cannot provide information which we do not hold.

While MS do not consider that cetaceans are evenly distributed, SCANS-III[1] outputs, which are recommended for use in our EPS guidance, represent the most recently available synoptic estimates of cetacean absolute densities for UK waters.

[1] https://scans3.wp.st-andrews.ac.uk/files/2021/06/SCANS-III_designbased_estimates_final_report_revised_June_2021.pdf

Question 2: Do MS agree that the model can only be used to determine the probability that cetaceans will be disturbed by each ADD at any one moment in time? If MS do not agree, please give your reasons in detail. Given that cetaceans are mobile, how does MS propose to modify the model so that it can be used to determine how many cetaceans would be disturbed at each site if the tracks of each animal were considered over a week, a month or a year?

While our aim is to provide information whenever possible, in this instance the Scottish Government does not have some of the information you have requested. Therefore we are refusing this part of your request under the exception at regulation 10(4)(a) of the EIRs. The reasons why that exception applies is because we do not hold (i) any written information providing either MS agreement or disagreement with regards to the point you make above in the first part of question 2, and (ii) we do not hold any written information on how MS propose to modify the model in the way you propose in the second part of question 2 above.

This exception is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exception. We have found that, on balance, the public interest lies in favour of upholding the exception. While we recognise that there may be some public interest in information of the type you have queried in question 2 above, clearly we cannot provide information which we do not hold.

Question 3: Please will MS explain in detail the disparity between the applicant’s predicted distances for TTS, PTS and disturbance and those distances derived from peer-reviewed scientific literature. Would the legal requirement to apply the precautionary principle mean that MS should use the more precautionary figures?

As part of our process we have consulted with NatureScot (NS) and for this application have also sought advice from Marine Scotland Science. We will be guided by them as to what is the best available evidence. I enclose a copy of some information we hold in response to the information you have requested. Please refer to item numbers 5 and 8.

An exception under regulation 11(2) of the EIRs (personal information) applies to some of the information requested because it is personal data of a third party and disclosing it would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018. This exception is not subject to the 'public interest test', so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exception.

While our aim is to provide information whenever possible, in this instance the Scottish Government does not have some of the information you have requested. Therefore we are refusing this part of your request under the exception at regulation 10(4)(a) of the EIRs. The reason why that exception applies is because we do not hold any written information to specifically address your queries made in question 3 above.

This exception is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exception. We have found that, on balance, the public interest lies in favour of upholding the exception. While we recognise that there may be some public interest in information of the type you have queried above in question 3, clearly we cannot provide information which we do not hold.

Question 4: Please supply all the information MS holds to enable them to decide whether efficient netting systems including double-skinned anti-predator nets are satisfactory alternatives to the use of ADDs?

We base our decision in regard to what is a satisfactory alternative on the information provided to us by an applicant. They would need to demonstrate to our satisfaction that they had tried to resolve the issue by alternative means and if they had not done so, we would expect them to justify why they had not.

We also consult NS and may seek additional specialist advice if necessary. For this application in addition to NS, advice was provided by Marine Scotland Science and the Scottish Government Veterinary Head of Animal Welfare.Consideration was also given to a guidance document, “Does the close proximity of seals to farmed fish cause “serious damage” associated with economic or financial loss?” (12 August 2022) provided by the Scottish Animal Welfare Commission (“SAWC”) in response to a request from Marine Scotland. Although these pieces of information do not specifically address netting systems, we are considering their content during our determination in relation to the EPS application as a whole and so we are providing copies of them in response to this request. Please refer to the following four item numbers that have been released as part of our response: 5, 6, 7 and 8.

An exception under regulation 11(2) of the EIRs (personal information) applies to some of the information requested because it is personal data of a third party and disclosing it would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018. This exception is not subject to the 'public interest test', so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exception.

Under regulation 6(1)(b) of the EIRs, we are not required to provide information which is already publicly available and easily accessible to you in another form or format.

In terms of studies commissioned by Marine Scotland/Scottish Government, published information is available on the Scottish Government website. Please refer to the following web link: https://www.gov.scot/publications/. Searching for text within the keyword search facility, for example specifying “acoustic deterrent devices”, reveals all publications made with respect to that search criteria. There are seven publications under acoustic deterrent devices and these include responses to freedom of information requests as well as work undertaken in relation to research and analysis.

If MS decides that such nets are not satisfactory alternatives to ADDs please give your reasons in detail.

While our aim is to provide information whenever possible, in this instance the Scottish Government does not have some of the information you have requested. Therefore we are refusing this part of your request under the exception at regulation 10(4)(a) of the EIRs. The reason why that exception applies is because we do not hold any written information about what our detailed reasons might be in such circumstances.

Satisfactory alternatives are considered in the context of each application. We would expect an applicant to outline all alternatives considered and used, or if they had not been either considered or used, we would expect a justification for this. We also consult NatureScot for each EPS application and may seek additional specialist advice if necessary. Our determination is based on all this information. This exception is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exception. We have found that, on balance, the public interest lies in favour of
upholding the exception. While we recognise that there may be some public interest in information of the type you have queried above, clearly we cannot provide information which we do not hold.

Question 5: What percentage of the Inner Hebrides and Minches (i) porpoise, (ii) minke whale and (iii) bottlenose dolphin SAC area would MS consider acceptable to be ensonified above 120 μPa rms by ADD(s) before MS decided in a Habitats Directive Article 6(3) appropriate assessment that ADD use was adversely affecting the integrity of the SAC ?

While our aim is to provide information whenever possible, in this instance the Scottish Government does not have some of the information you have requested. Therefore we are refusing this part of your request under the exception at regulation 10(4)(a) of the EIRs. The reasons why that exception applies is because it is not possible to respond with figures in terms of how the question has been asked.

This exception is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exception. We have found that, on balance, the public interest lies in favour of upholding the exception. While we recognise that there may be some public interest in information of the type you have queried in question 5 above, clearly we cannot provide information which we do not hold.

NatureScot is the statutory consultee in regard to impacts on European sites and we consult them for each EPS application. Marine Scotland completes appropriate assessments if it is determined that there will be a likely significant effect upon an SAC, and this would be considered in relation to any such applications relating to the Inner Hebrides and Minches SAC. One factual point to note is that the Inner Hebrides and Minches SAC is designated only for harbour porpoise, not minke whale or bottlenose dolphin.

Question 6: What percentage of the Inner Hebrides and Minches (i) porpoise , (ii) minke whale and (iii) bottlenose dolphin SAC population would MS consider acceptable to be ensonified above 120 μPa rms by ADD(s) before MS decided in a Habitats Directive Article 6(3) appropriate assessment that ADD use was adversely affecting the integrity of the SAC?

While our aim is to provide information whenever possible, in this instance the Scottish Government does not have some of the information you have requested. Therefore we are refusing this part of your request under the exception at regulation 10(4)(a) of the EIRs. The reasons why that exception applies is because it is not possible to respond with figures in terms of how the question has been asked.

This exception is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exception. We have found that, on balance, the public interest lies in favour of upholding the exception. While we recognise that there may be some public interest in information of the type you have queried in question 6 above, clearly we cannot provide information which we do not hold.

NatureScot is the statutory consultee in regard to impacts on European sites and we consult them for each EPS application. Marine Scotland completes appropriate assessments if it is determined that there will be a likely significant effect upon a SAC, and this would be considered in relation to any such applications relating to the Inner Hebrides and Minches SAC. One factual point to note is that the Inneru Hebrides and Minches SAC is designated only for harbour porpoise, not minke whale or bottlenose dolphin.

Question 7: Please supply all correspondence between MS, NatureScot and Kames for the past 3 years about this EPS Licence application.

I enclose a copy of some of the information you requested. Please refer to the following item numbers that have been released as part of our response: 1, 2, 3, 4, 5 and 9.

An exception under regulation 11(2) of the EIRs (personal information) applies to some of the information requested because it is personal data of a third party and disclosing it would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018. This exception is not subject to the 'public interest test', so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exception.

Some of the information you have requested (the Kames EPS Application form 00009937 (submitted on 29 June 2022) and all supporting documentation provided by Kames with the application) is available already from our Marine Scotland Information (MSI) website using this link:

European Protected Species Licence Application - Acoustic Deterrent Device - North Moine, Shuna Castle, Kames Bay East, Kames Bay West, Ardifuir and Pooltiel West - 00009937 | Marine Scotland Information

Some of the information you have requested (the three EIR(s) attachments to the latest email in the chain of item 13) are available already from the Scottish Information Commissioner website using this link:

Homepage | Scottish Information Commissioner (itspublicknowledge.info)

Under regulation 6(1)(b) of the EIRs, we do not have to give you information which is already publicly available and easily accessible to you in another form or format.

Question 8: Please supply all correspondence between MS, NatureScot and TSSC for the past 2 years about Predator control, ADDs and EPS licences for the proposed farm at Little Colonsay.

While our aim is to provide information whenever possible, in this instance the Scottish Government does not have some of the information you have requested. Therefore we are refusing this part of your request under the exception at regulation 10(4)(a) of the EIRs. The reasons why that exception applies is because we do not hold any correspondence between MS, NatureScot and TSSC in the past 2 years about Predator control, ADDs and EPS licences for the proposed farm at Little Colonsay.

This exception is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exception. We have found that, on balance, the public interest lies in favour of upholding the exception. While we recognise that there may be some public interest in information of the type you have queried in question 8 above, clearly we cannot provide information which we do not hold.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.

FOI 202200322854 - Information released

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