Our response to the SEPA Consultation on the proposed new regime for polluting the seabed.

Response by Ewan G Kennedy on behalf of the saveseilsound Campaign Group to the SEPA DZR Consultation

Introduction

About us

In 2011 a  planning application to relocate and expand a failed fish farm at Ardmaddy at the North end of Seil Sound to a point further South created considerable concern locally and further afield, resulting in over 800 objections. A group of local residents decided to form saveseilsound as a campaign group to carry out research and inform ourselves about what was going on under the surface in order to ensure that our contribution to the debate was based on science and not emotion. While we value our area very highly for the quality of its environment, wildlife and scenic beauty, our concerns were not solely about ecology, but also for our local micro-economy, which in common with most of mid-Argyll is almost entirely dependent on tourism and leisure.

The saveseilsound campaign group now includes a central core of technical specialists, including marine biologists, experts in water flows and hydrology, some scientists now retired from government service and thus free to assist us and myself, a lawyer with some experience of litigation matters, who serve as honorary secretary to the group. We are totally unfunded and beholden to no person and nothing apart from the environment that we respect.

After the Ardmaddy application was granted unanimously, followed by several other grants processed by officials without going to committee, we decided that our resources would be better used in trying to compel the agencies charged with looking after our health and environment simply to comply with the regulatory regime that they, including yourselves at SEPA, are supposed to be working under. To date we have had some success with our complaint to the EU in relation to the Animal Waste By-Products Directive, which produced a welcome legislative change in 2015.

We have in preparation a further Complaint in respect of the failure of governmental bodies properly to comply with the Environmental Impact Assessment Directive. The Directive specifies a number of elements that statements should contain, including that they should be comprehensive. This has never happened in our area, indeed many applications have been granted without any assessment.

About our area

Visitors come to the area from all over to enjoy the beauty of this still largely unspoiled wild fringe of Europe and the numerous still visible pieces of history, the duns and castles, the standing stones, the islands which among other things roofed the world, contributed to religious thought and had impacts throughout the world from America to Australia. Recently films created against a Scottish backdrop, art trails such as Artmap Argyll, wild life cruises to see cetaceans and raptors plus the Argyll Sea Kayak Trail (http://www.paddleargyll.org.uk/kayaktrail.html) have intensified this interest and created more demand for local facilities and services.

There is scope for visitor numbers to be considerably increased by publicising what rural Scotland has to offer, but this is directly threatened by fish farming. Bays that are  hosting a fish farm are effectively out of bounds to kayakkers and in hard conditions could even present a threat to life. Argyll & Bute Council failed to commission an archaeological survey at Ardmaddy South, with the result that a Viking boat noust on the shore was not spotted. Visitors now see a huge industrial installation next to prehistoric Dun Fada and the legendary Castle of the Dogs on Torsta.

The employment figure in the policy statement by the Scottish Government cannot go without challenge. The industry has for years quoted figures for employment created far in excess of the official statistics produced by central and local government, occasionally admitting that it claims the benefit of all employment in local services. It is absolutely certain that the jobs created in the most fragile micro-economies total far less than 8300. For example, how many are resident on Seil? Or Luing?

The area will continue to depend on tourism and leisure long after the fish farm owners have sold out and taken their profits to tax havens.

Question 1 – Do you support the principle of trying to make it easier and more attractive for fish farm businesses to develop in exposed, deep waters with strong tides?

This question conceals what seems to us to be a complete reversal of the approach to handling the enormous pollution produced by industrial fish farming, by abandoning a policy of containment and allowing the oceans to become effectively a gigantic dustbin.

Going back to an earlier period in the history of the industry, when guidelines were produced by Strathclyde Regional Council, the principle was to keep fish farms to a size that seems miniscule by today’s standards, just a hundred tonnes or so. It was acknowledged that installations would pollute, so leases were limited to ten years with a presumption that they would not be renewed on the same site. Ideally they would be sited in areas of limited tidal flow, to keep the poisonous debris confined to an “allowable zone of effects” that would be sacrificed but would hopefully recover when the farm moved.

As we all know this approach proved aspirational only. Leases were renewed without being moved, AZEs were relentlessly increased and this powerful industry, largely driven by foreign entrepreneurs who were subject to strict environmental laws back home, found that Scottish politicians of all colours could be seduced by talk of creating employment in fragile communities,  “producing animal protein and … food security” - this despite the ration of wild fish required to produce the salmon, formerly about 10 to 1 and now down to about 4.5 to 1, with Agriprotein (using insects) now being discussed!

To make matters worse the Crown Estate changed the rules to allow long leases of the seabed effectively creating rights of property which would be very difficult to cancel.

Anecdotal evidence began to come in from divers that the seabed was being progressively ruined under the farms. I do not dive, but have spoken to some divers who have worked for fish farms and many recreational ones, who have confirmed this. I was present on the dive boat when the following video was made at Pol na Gille and will testify if necessary to its authenticity.

Video of the seabed at Pol na Gille

What is absolutely clear is that allowing industrial fish farming in inshore sea lochs and voes is deadly to local wildlife, poisons the sea bed and ruins the prospects for small local businesses.

Even without fish farming the sea loch system comprising Seil Sound, Shuna Sound, Loch Shuna and Loch Melfort (Seil/Shuna/Melfort) would be under pressure from shore-based developments and visitors. Apart from several hundred domestic properties, some with but many without proper septic tank facilities, there are two failed public systems installed by Scottish Water at enormous expense, two commercial boatyards doing pleasure and fishing boat repairs, a marina and several mooring areas together hosting several hundred yachts, two substantial hotels and several working farms.

All of the foregoing discharge into what is truly one single, moderately-sized sea loch in all but name. As is well known, tidal flows on the West coast run from South to North and with virtually no exit to the North via Clachan Sound and only minimal flushing via the Cuan essentially the same water is moving back and forth in each tide.

This argument was developed more fully, with a detailed analysis of the seabed and tidal flows, in the comment which we submitted to you in response to application no CAR/L/1000800. In line with our usual experience SEPA did not engage with us and duly allowed the increase that was sought.

Subsequently Mike Russell MSP lodged written questions regarding the possible redesignation of Seil/Shuna/Melfort as one sea loch, to no effect. Here is the exchange:

Question S4W-28411: Michael Russell, Argyll and Bute, Scottish National Party, Date Lodged: 11/11/2015

To ask the Scottish Government whether it will designate the Seil/Shuna/Melfort loch system as a single sea loch for the purpose of better regulating fish farming in the area.

Answered by Aileen McLeod (24/11/2015):

The Scottish Government has designated Disease Management Areas based on separation distances, tidal excursions and other epidemiological disease risk factors. Disease management area 16d includes the Seil/Shuna/Melfort loch system as well as the Loch Craignish system. This is considered as one single area for the purposes of disease management.

The Seil/Shuna/Melfort loch system forms part of a Farm Management Area, area M40 as designated in the Scottish Salmon Producers Organisation’s Code of Good Practice. The Aquaculture and Fisheries Act 2013 requires fish farmers to be party to a farm management agreement or to maintain a farm management statement which must contain provisions about the following matters – fish health management, management of parasites, live fish movements, harvesting and fallowing.

To ask the Scottish Government, further to the answer to question S4W-28411 by Aileen McLeod on 24 November 2015, whether it will designate, for planning purposes, the Seil/Shuna/Melford loch system as a single entity and ensure that it is treated as such at all levels of the planning process.

Answered by Alex Neil (17/12/2015):

The protection that the planning system affords these waters would be a matter for Argyll and Bute Council to consider through the development planning process. The council's current development plan largely takes a criteria based approach to guide proposals to the most appropriate locations. The impacts that any specific proposal might have on these areas will be a material consideration when determining any planning application. The Scottish Government will monitor the situation closely.

To ask the Scottish Government, further to the answer to question S4W-28816 by Alex Neil on 17 December 2015, in light of Argyll and Bute Council being bound by guidance on the inshore sea lochs and voes set out in Marine Scotland maps, whether it will move the southern boundary line on those maps for the Seil/Shuna/Melfort lochs from its present location to a line between Ardluing and Craignish.

Answered by Alex Neil (13/01/2016):

There is currently no intention to amend the areas to which the Locational Guidelines for the Authorisation: Marine Fish Farms in Scottish Waters apply.

You will note that the Minister Alex Neil appeared to be in ignorance of the legal requirement for Argyll & Bute to follow the guidance of Marine Scotland. This is typical of the situation that has arisen with a divided system of control, enabling the various public bodies, local authorities, Marine Scotland, SEPA and the Crown Estate to pass the buck, unhindered by Ministers who do not understand the system.

There are now about ten current installations in Seil/Shuna/Melfort hosting hundreds of thousands of caged salmon in an area that any sane person (and indeed the industry, but seemingly not the Scottish Government) can see is effectively one single, largely enclosed sealoch. The evidence we have assembled to date confirms that such things should not be placed inshore. Moving them offshore would certainly help to solve our local problems, assuming they could be moved and the leases cancelled without the claims about expropriation of property that the operating companies would inevitably make.

We do not have the expertise to offer a view on the likelihood of offshore locations succeeding in overcoming huge logistical problems. On the face of things we suppose that the pollution would still end up somewhere, just not, we hope, on our doorstep. Taking things to extremes, if installations were moved many miles offshore the problems would become international and the seabed would be too deep to monitor.

We have the following detailed observations:

It makes no sense to allow the industry to expand offshore unless this results in a corresponding reduction in biomass in the existing inshore locations.

Offshore must mean well offshore, at least outside the 3 mile limit. We would strongly oppose any farms in areas of offshore islands such as Garvellachs, Slate Isles, Sounds of Jura and Sound of Luing, which are areas of high conservation importance.

There must be no farms in or close enough to impact on MPAs and SACs and existing farms must be moved out of these protected areas.

The use of ADDs must not be allowed within the porpoise SAC, because they exclude porpoise from important habitat for around 7.5 kilometers from the ADD.  Double nets should be fitted to any farms where there remains a problem with seals and shooting of seals should only be allowed  “as a last resort” when a seal is actually inside the net.

Question 2 – What are your views on our proposal to remove the current cap of 2,500 tonnes on the maximum fish biomass that a farm can stock?

This looks suspiciously like an acknowledgement that SEPA is in fact unable to control what is going on and intends to surrender to the demands of the industry, supported by Ministers blinded by the prospect of a quick solution to the problems of fragile coastal economies.

For several years we have been following the lack of activity by SEPA in enforcing existing limits in a system that relies on companies to self-report any misconduct. You will be aware, as we have discovered by examining the figures reported on your website, that there have been many hundreds of failures to keep within permitted limits. Recently we engaged with you by way of FOI requests in relation to what appeared to be clear breaches at Pol na Gille, in an attempt to find out if SEPA had reported matters to the Crown Office. As you will be aware we were unsuccessful, as a blanket exemption was applied. It seems that in the whole history of the CAR there has not been one single case brought to court.

We can understand the difficulty in using reports filed by junior employees of a company, often no doubt working in adverse weather conditions, to produce evidence of a sufficient standard to establish criminal liability, given difficulties of authentication and the privilege against self-incrimination. We can fully understand the embarrassment no doubt felt in the Crown Office and its reluctance to disclose the reasons for its decisions not to prosecute.

Given current restrictions on finance it does not seem likely that resources will be made available to provide an underwater police force to produce evidence to a proper standard. Efforts must be made to enforce the present system before allowing much larger installations in sites which it seems will be even more difficult to police.

Question 3 – Do you support our proposal to allow fish biomass to increase by up to 10% per production cycle, provided compliance with the proposed seabed standards is not threatened?

No

Question 4 – What are your thoughts on our proposal that, for DZR sites, we will take on responsibility for monitoring the effects of the farms on the seabed?

Of course you should, see our Answer 2 above. You should do this for all sites, not just new ones and must lobby for resources to do so.

Question 5 – What are your views on our proposal that there should be a break in production if seabed standards are breached to allow the seabed to recover?

The original policy referred to in Answer 1 was sound and it is tragic that it has been ignored.

If, in the case of a land-based installation, the tenant commits a serious breach of the terms of the lease the landlord has the legal power to irritate (i.e. cancel) the lease and recover possession. This could be an effective way to ensure compliance with, for example biomass rules, leaving the site fallow for however long it proved necessary for the seabed to recover.

Question 6 – What are your views on our proposal that, under DZR, the maximum area of seabed that can be affected by the deposition of farm wastes would be standardised to 0.5 km2?

We have no views on this. In a deep water site monitoring would be impossible anyway.

Question 7 – Are there any other comments or suggestions you would like to make about the proposals?

The public detest self-regulation, whether it be in the police, the legal profession or the doctors, and for good reason. Land-based agriculture is subject to external regulation, as is the entire food production chain, but fish farming is for some reason exempt, whether it be in relation to compliance with CAR regulations or shooting seals. The single best thing that could be done to enable SEPA to do its work effectively would be to give it the resources to enforce existing regulations.

This response has necessarily been kept short, but we shall be happy to expand on any issues when you engage with us.