Aquaculture regulatory process: review

A Consenting and Framework System for the Future

Norway has recently published a new aquaculture strategy in order to achieve their goal of sustainable growth for the sector (An introduction to the Government's new aquaculture strategy). The Norwegian Government has set out 5 aims to achieve their goal:

• ensure good fish health and fish welfare;
• produce sustainable seafood with a small climate and environmental footprint;
• produce healthy and safe seafood that meets nutritional needs and food preferences;
• ensure good access to the markets where the products are competitive and be able to document that Norwegian seafood meets applicable requirements as regards food safety, sustainable production, fish health and welfare etc., and
• contribute to good and profitable jobs and local ripple effects along the entire coast of Norway and revenue to society.

Recently published documents and the opinions put forward, of almost everyone involved in the sector, indicate that no one would disagree with those standards and in many cases should be the benchmark.

A repeated theme throughout the evidence gathering phase has been the request for a system similar to the one in Norway. I have looked at the process in Norway and while I agree that it does do some things well, I believe the licencing and consenting system that can be implemented in Scotland can be better.

From work and visits by others to Norway, a key point of learning was that fish farms need both a location approval and to buy a permit for growth in biomass. The location approval is delivered through a "single window" approach where the various regulatory bodies deal with an application within a co-ordinated process. This sets a maximum scale of production and then permits for additional biomass are sold through a process that combines both fixed price and auction elements. The location consent process incorporates a number of related components within a co-ordinated system. There are still individual decision-makers for a number of these components. The timeframe for processing applications under this system is 26 weeks for straightforward applications. Cooperation between industry, science input and the regulatory authorities is seen as essential. In simple terms this means that when an applicant wants to start or enlarge a finfish farm they apply though a single portal. Those in that portal then manage the process with other regulators and interested parties with the person in the portal acting as the project manager. The result is one single consented document covering all aspects and for a single length of time across all bodies involved.

Single Consenting Document

The Norwegian single window regime is not a panacea nor is it a single consent covering all requirements. Rather, it is a co-ordinating mechanism to give all necessary location permissions, including environmental discharges (equivalent to SEPA's Controlled Activities Regulations but determined by regional authorities), at a point coterminous with licence award.

While that in itself would bring advantages to the current process, I believe that it misses out something, which has been proved to lead to effective and efficient licencing and consenting outcomes in other sectors both in Scotland and elsewhere.

I am recommending a new single consenting document for aquaculture should be created, that mandates what all parties (the applicant, regulators, the community, and other statutory consultees) involved in an application are subject to, derived from a pre-application consultation prior to submission.

All parties would go through all of the parts of the application jointly and agree or not on what the application will look like. If they agree to the application the presumption is that it should proceed to a single consenting document which would be approved and it can be set out in a way that is clear to all parties. That is not just in terms of what it is that has been consented, but also what the 'rules' and caveats are, and importantly what can be changed with or without further agreement and consultation in the future, and cover a period of time that is the same in terms of consent for all parties.

The technical process has been called multilateral pre application consultation but it is much simpler than it sounds and has been proven to work well in other sectors and places. In the current process all the exchanges are done bilaterally which leads to all parties requesting the same, or similar, information leading to duplication of work, with little sharing of information or views. This in turn causes issues, with parties not knowing or understanding, in many cases, the reasoning behind certain decisions or judgements. In my opinion, the reason the multilateral process is underutilised is that it needs someone to manage the process and indeed manage the meetings that are needed to make this work well. The belief is that if someone who is an integral part of the consent process managed the process they would lose their independence so could be accused of influencing the outcome. While I think there are ways round this, having an independent person in control of and managing the process is useful as someone will have to draw together and produce a single consenting document that all parties agree to and eventually sign up to.

This will not influence or diminish the roles of the current regulators nor dilute their responsibilities as long as they are operating in the new framework put in place for each part of the aquaculture sector. They will perform their duties collectively. The same applies to other statutory consultees and most importantly to the community involved. For this to work there would need to be alignment of the time taken to award each consent otherwise this will make the consenting document complex.

Management of the Process

The new single document process will need a person or body to be appointed as the process manager. Their role will be to chair, steer, manage and produce the final consenting document. That person or body will be:

• Knowledgeable in all the aspects of the sector and the process that is proposed;
• Be seen by the community as a 'local' namely understanding their challenges should they have any, and
• Be trusted by all parties to do this independently and within a framework and set of rules already is agreed.

This is important as in all the years I have carried out reviews I have never come across a sector where there is so much mistrust and indeed vitriol between industry and some of the regulators and other parties involved in aquaculture. This led to a formal complaint by the industry in respect of one of the regulators.

It is imperative that whatever new process is put in place restores trust and can be managed with respect in the process. I believe the best way of doing this is to create a dedicated and separate part of Marine Scotland whose only role is to manage the consenting document process for aquaculture in Scotland within a framework decided by Government. This will require knowledgeable and experienced people to run it and manage each of the multilateral consenting and other meetings as they occur.

Local Authorities

Whilst I recognise the professionalism of the Local Authority planners, there is an option in the Marine (Scotland) Act 2010, Section 63 that provides for fish farming not to be deemed a development under the Town and Country Planning (Scotland) Act 1997. This Order can only be made with the consent of local authorities for their relevant waters. This essentially means that Local Authorities can give up their planning rights to the Scottish Government in respect of aquaculture, should they think that appropriate. I believe that Local Authorities must have a role in this process as it affects their communities and their local economies. They require some legal status to ensure accountability in this respect. That could be achieved through designating them as statutory consultees to the process. This could allow them to widen their remit beyond planning issues.

From my engagement discussions I am aware that there are differing views among planning authorities to retaining planning powers for aquaculture. The issue of resourcing and maintaining expertise was raised by all, except Shetland. Discussions with COSLA noted that they would be content for each Local Authority to decide whether to retain planning powers for aquaculture or not.

Local Communities

In respect of the local community I recommend the new consenting document contains a 'social contract' that recognises the community and its needs. I acknowledge that aquaculture companies already work well with the communities within which their operations sit. I believe comparisons should be drawn with the wind farm industry where local communities receive a 'share of the benefits' that companies make from a local operation. The recommendation I understand is not without its complexities and it must not just be a way of communities claiming 'benefit' for everything that is done locally but I do think it is worth considering.

Evidence Based Decision Making

The recommended consenting process should resolve many of the issues raised by all parties, and indeed many proposed a single consenting system in their submissions. However, it will not resolve one of the key issues, namely inconsistency and the ability for everyone to use their own evidence or sources in making decisions or judgements which may conflict with other evidence and views elsewhere. That is not to say that each body involved should not still make its own decisions and judgements but should do so within the boundaries that have been agreed by the Scottish Government in the policy framework for the sector.

I believe this conflict in the decision making process is mainly due to the pace of change in industry and the corresponding science. Those using science must ensure that they have the most current, effective and relevant scientific evidence to defend their arguments against any negative issues raised. To be clear, that is not just science for the industry to defend itself but it needs to ensure that it has in place the most effective, efficient, and humane process for producing its products.

It is also worth raising at this point that my report has been primarily to do with statutory licensing. The industry are also regularly audited by both their customers and various accreditation bodies. Many customers provide their own parameters within which the fish farmer has to operate. To highlight this, one of the large finfish farms shared the number of audits and time spent on them, which is set out in Annexe G. Customers also produce data and scientific reviews adding to the increasing amount of scientific evidence produced by industry, academia and Government. What is not clear is how often the science and other evidence used by individual organisations involved in the current regulatory process is reviewed or shared to ensure it is the most up to date and accurate available.

Therefore another recommendation is the science and other evidence that is currently being used by all parties involved in the sector is reviewed independently to ensure it is the best and most up to date available.

Any mistrust or inconsistency in the science and evidence base is key, and the reason I believe that the new consenting process without a framework will not work effectively.

Governance

I recommend that once the Scottish Government has produced its Vision for Aquaculture it should work with all parties through a Project Board to produce, within 12 months, a 10 year framework for each part of the aquaculture sector (finfish, shellfish, and seaweed) within which all must operate.

The framework, should be owned by the Scottish Government, and should set out a 10 year strategy for each sector. It should include:

• The type and size of industry they want within that period, including the levels of tonnage and biomass;
• Where they want sites to be as part of a larger Marine Planning exercise. (The proposals outlined in the Fourth National Planning Framework recommends that local development plans should guide new aquaculture developments to locations that reflect industry needs and take account of environmental impact and wider marine planning. Local Authorities will be required to do this. Shetland already has this in place);
• Parameters for disease control and other issues such as sea lice² within which the industry must operate;
• The community benefit that it should achieve in all aspects;
• How interactions with other species and predators would be managed;
• The licencing and consenting regime and how that will operate;
• Clear lines of responsibility in terms of who does what;
• The length and substance of each licence, and
• How it would be funded.

This framework would become part of the Government policy and no decision can be made outside of those parameters without agreement of the Scottish Ministers. The framework needs to be adaptable in line with emerging scientific evidence that all parties agreed were relevant. The framework could comprise of targets, to be achieved over a number of years others could be enacted now. The creation and management of the framework would be the responsibility of the new part of Marine Scotland, which would operate and manage the licencing and consenting process.

Management of Sites

The framework and single consenting process could pave the way for the sector to examine the effectiveness of their sites.

Stakeholders in the finfish industry have stated that not all the current sites they operate are as optimal as they could be given the passage of time. This is mostly due to the development of the industry over the last 50 years and the better understanding and knowledge. Some sites that were initially put in place may, with the advances in knowledge, not now be in the right place or be the right size. The current consenting system doesn't allow 'consolidation' proposals to be dealt with sensibly or indeed at all. The industry are aware that site configuration today is not optimal on many points but, there is not the trust in the system to initiate any consolidation works. Therefore, once that framework is in place all existing sites should be examined to ensure that they can operate within the framework.

In 2020 there were 232 active salmon sites in Scotland (Marine Scotland, 2020) with only 131 actually producing, leaving the rest dormant. From my discussions with the industry, who want to grow the output of the industry overall, they believe that with proper and good consolidation a bigger industry could operate from fewer sites. That consolidation exercise would also leave a number of sites fallow. There are also sites that have not been used for some years but have not been closed or the licence given up.

It is recommended that all sites where it is unlikely, after evaluation against the new framework and remedial action that further finfish production will occur, give up all licences held on that site by the current owner. Those sites would either then be:

• Returned to the wild;
• Become available for shellfish operators who see some as good places for shellfish production, and
• In some cases help the seaweed industry expand.

This does not mean that any site that does not fit within the new framework should immediately be shut. The framework will need to be flexible to allow parties to work through these issues and take action to bring the site within the agreed parameters or consolidate in a compliant site. Only if there is no mitigation should a site be considered for closure.

Science, Data and Evidence

In Norway there is a separate scientific body which advises the various regulatory functions in Norway and is deemed to work well. Currently in Scotland each regulatory body houses its own scientific functions.

The proposed new framework will be based on data and evidence, of all types, that will inform its parameters and targets over time. That scientific and other evidence needs to be consistent as is stated above so Government needs a body that can advise it on what evidence they should be using. Therefore, I recommend the creation of a central science and evidence base should be put in place jointly run and managed by industry and the Scottish Government which gathers, collates and examines scientific and other evidence relating to this sector so decisions within the framework can be made in the most effective way.

Where it sits would need to be agreed but it needs to be a body where the scientific and other evidence from industry, Government, and elsewhere can be brought together and managed effectively including commissioning new science where it thought it was necessary.

Many of the changes I am proposing throughout this report could be started now and indeed information gained from an initial trial on that new system would add useful information and knowledge to the creation of the framework. In terms of the pilot I believe that Shetland would be the ideal place to carry any out due to their expertise and ability to work well with the industry already. A pilot would allow much of the administration that any new regulatory system requires and can be designed within a supportive environment. This would allow a smooth transition to the full roll out of the new process.

Moving Forward

Governments produce frameworks for industry and regulators implement that policy. COVID-19 has been a good example of where Government has created frameworks and guidance on what it considers to be the appropriate balance. Frameworks exist everywhere in society be it for the speed we are allowed to drive our cars, the way we are dealt with legally, and many others.

While the Vision for the sector is being finalised I propose that the Government led Project Board take forward the initial work on a framework that will allow a timeous meld in with the Vision, once in place.

Although I am not clear on the legislative implications, I believe that much of what I am recommending can be implemented either through alterations to existing legislation, where there is flexibility to use Statutory Instruments to give change, and through change in the ways we administer or process actions, which can be done with Ministerial direction. There is the possibility that alternatives, that take us away from that need for legislation may be found.

I believe that my recommendations will start to restore trust within the aquaculture sector, which is key to going forward. I also believe that all parties are ready and willing for this change which I think is highlighted in a paragraph from a regulator's written submission:

"In a fast changing sector, we believe the flexibility of regulations like CAR and IAF (Integrated Authorisation Framework) is important in facilitating on going, adaptive regulation of sites, able to respond rapidly and appropriately to innovation by developers and operators and to poor environmental performance."