Scottish Animal Welfare Commission - proximity of seals to farmed fish: response to Marine Scotland

Acoustic deterrent devices and legislation regarding disturbance of European Protected Species

The evidence presented above suggests that ADDs have the potential to cause harm to cetaceans and seals. This is important because of the European Protected Species (EPS) status of these species. Scottish legislation that conserves European Protected Species (The Conservation (Natural Habitats, &c.) Regulations 1994): the “Habitat Regulations”) makes it an offence to deliberately or recklessly capture, injure, kill, harass or in particular circumstances, disturb a wild animal with EPS status. It also makes it a specific offence to deliberately or recklessly disturb any dolphin, porpoise or whale (cetacean). The term ‘disturbance’ is not defined and so may potentially include stimuli that cause a change in behaviour indicating a negative experience. 

Given the evidence outlined above, this suggests that the use of an ADD in an area containing cetaceans could contravene the EPS legislation.

However, under regulation 44 of the Habitat Regulations, certain activities which would normally constitute an offence against EPS may be permitted under a licence granted by the appropriate authority. A licence may only be granted provided that: (a) the proposed activity falls within one of the licensable purposes listed in regulation 44(2), (b) there must be no satisfactory alternatives, and (c) the actions authorised must not be detrimental to the maintenance of the population of the species concerned at favourable conservation status in their natural range. An application for a licence will fail unless all of these three tests are met. A licence granted may include a requirement for mitigation aimed at minimising potential impacts to species listed on the licence application. Adherence to mitigation measures can form a condition of the licence, with licence holders responsible for ensuring compliance with any conditions.

It is the responsibility of the person(s) carrying out an activity to determine if an EPS licence is required, and to seek the licence from the appropriate authority. In relation to applications to use ADDs to protect farmed salmon, licence applications may be submitted to the Scottish Government Marine Scotland Licensing Operations Team (MS-LOT) following the guidance that has been issued (see The use of Acoustic Deterrent Devices (ADD) and the Requirement for a European Protected Species Licence (EPS) at Finfish Farms in Scotland).

MS-LOT will consider on the basis of the information supplied to support the application if the proposed activity meets a licensable purpose and if there is no satisfactory alternative and will take advice from NatureScot on the consequences for the favourable conservation status of the species concerned.

In relation to use of ADDs to deter seals from salmon farms, the most likely and relevant licensable purpose would seem to be “preventing serious damage to livestock, foodstuffs for livestock, crops, vegetables, fruit, growing timber or any other form of property or to fisheries”. “Fisheries” is understood to include fish farming and there is guidance stating that ‘serious damage relates to specific interests, i.e. it leads, or could lead, inter alia to a direct or indirect economic and/or financial loss, loss of property value, or to the loss of production material.’ This does not specifically include harm to the welfare of animals, but it raises the question of whether seals predating on farmed salmon, or the presence of seals in close proximity to farmed fish can cause “serious damage” associated with economic or financial loss. While there is some evidence of salmon losses, up-to-date information is not available. The issue of stress caused to salmon also needs to be considered.