The ADDs live on!

 Following the recent report from Environmental Standards Scotland I submitted a Freedom of Information Request in order to find out the procedure in terms of which an operator of a fish farm could get permission to operate an Acoustic Deterrent Device, otherwise a sea scarer, WITHOUT applying for a licence.

The answer came today, referring to an FAQ page on Marine Scotland. The relevant paragraph reads:

“5. Do I need to apply for an EPS licence?

It is your responsibility as the fish farm operator to determine whether you need to apply for an EPS licence. However given current scientific advice, it is likely that an EPS licence will be required for all currently available ADDs unless you can demonstrate that the device(s) operating at your site will not cause disturbance to cetaceans. If you are using or intend to use ADDs at your site and consider that the device(s) will not cause disturbance to cetaceans, evidence of this must be submitted to Marine Scotland - Licensing Operations Team (“MS-LOT”) at MS.MarineLicensing@gov.scot. This evidence should include a robust assessment of the numbers of cetaceans likely to be disturbed using the best available estimates of cetacean abundance and distribution for the site, alongside underwater noise propagation modelling that accounts for local environmental conditions. If your assessment concludes that less than one individual of a cetacean species will be disturbed MS-LOT may be able to confirm that an EPS licence is not required following consultation with Marine Scotland Science (“MSS”).”

It remains a complete mystery how anyone could prove that less than one, i.e. NO, cetaceans would be harmed by using a device the use of which inevitably does precisely that!

I also asked if there would be a list of applications and indeed there is, on Marine Scotland Information.

I just checked and as at today there are NO applications to use an ADD without a licence, but ONE for a licence, by Kames Fish Farming in respect of SIX sites:

North Moine, Shuna Castle, Kames Bay East, Kames Bay West, Ardifuir and Pooltiel West

The application is still current, so who knows what’s going on!?

This is the first Summer that Dolphins and Porpoise and even an occasional whale have been spotted in places including Seil, Shuna and Melfort, perhaps due to the use of ADDs having been abandoned.

So, today’s question is why does the locally owned company Kames Fish Farming, among all the operators on the West Coast, uniquely believe that it needs to harass protected species?

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Let's hope this is the end for Acoustic Deterrent Devices!

Last week saw an absolutely massive victory for all those who have campaigned for years to stop the illegal harassment of whales, dolphins and porpoise in our inshore waters. Environmental Standards Scotland have produced a report confirming not only that fish farm companies have been committing offences by their use of seal screeching devices but that they have been doing so with the knowledge and the tacit approval of Marine Scotland.

Let that sink in.

Marine Scotland, a branch of the civil service in Scotland and the governmental body in sole charge of protecting our marine environment, has been deliberately and cynically turning a blind eye to active criminality by the largely foreign owned companies who use our waters for the industrial production of salmon.

On 25 November 2019 a group of concerned citizens, all members of Coastal Communities Network, met with senior civil servants at Marine Scotland and sat in disbelief as we were lied to. In a nutshell:

(first) the use of a seal screecher (ADD) in Scotland is illegal in the absence of a licence from Marine Scotland

(second) licences cannot be granted, because their use inevitably “harasses or disturbs” protected species such as whales, dolphins or porpoise. (Only where there is no alternative will a licence be granted, e.g. temporary harbour works. Fish farms have other options.)

(third) Marine Scotland responded to this by turning a blind eye to wholesale criminality.

My subsequent letter to the Lord Advocate was passed to the very civil servant who spoke at that meeting!

Huge thanks to David Ainsley and Jean Ainsley at Sealife Adventures, also to Guy Linley-Adams and Coastal Communities Network.

More about this can be found in previous posts on this blog.

The full ESS report can be accessed here:

Environmental Standards Reporthttps://www.environmentalstandards.scot/wp-content/uploads/2022/08/Environmental-Standards-Scotland-ADD-Informal-Resolution-Report.pdf

PS For the curious: Does anyone wonder if there was any pressure put on those civil servants to tell lies by a certain Scottish Government Minister?

Acoustic Deterrent Devices - an Update - Are we living in a parallel World?

I make no apology for a long read on the important subject of why Scotland tolerates the fish farm industry putting the lives of endangered species at risk by the unlicensed use of Acoustic Deterrent Devices, also known as Seal Scarers.

My letter to member of the Scottish Parliament’s Environment Committee sent 4 June:

“I am sending this to members of the Committee who took part in the meeting on 3 June, with reference to the discussion on seal shooting and ADDs.

I watched the session online with some relief that steps are at last being taken, but also sadness that it has taken so long to get to this stage. There was no sign of irony in the opening remarks of Mike Palmer about the measure being to “enhance the welfare” of seals: surely it shouldn’t have taken years to conclude that a good start is to stop shooting them?

It is extremely disappointing that Marine Scotland have taken no steps to consult with the public. They are well aware of the large number of citizen groups along the West coast who are actively involved in researching, collecting views among local populations and engaging with governmental bodies. A consultation, over the brief period that is now often customary, would not have delayed matters unduly, would have gathered useful views and information and would have been in the spirit of governmental openness. It would not have been difficult to arrange; almost all coastal groups are now in regular communication with each other via Coastal Communities Network and/or SARNS. Michael McLeod mentioned “stakeholders” but did not identify them. I am grateful to the Committee members who raised this and who also pointed out the lack of involvement of MSPs due to the amendment coming so late in the process. What follows covers some points that might have been made in such a consultation.

As Mark Ruskell pointed out, the American position reflects on both shooting and the use of ADDs. One can assume that banning the former will increase the use of the latter, however ineffectual they may be.

Regarding ADDs, the position, stated bluntly, is that (first) their use in Scotland is illegal in the absence of a licence from Marine Scotland and (second) licences cannot be granted, because their use inevitably “harasses or disturbs” protected species such as whales, dolphins or porpoise.

On 25 November 2019 I was part of a group of representatives of CCN who met with Marine Scotland to present our concerns and explore these issues. We got no answers to the foregoing questions, but did discover that apparently ADDs are not used in Shetland, because the companies there took advice from SNH. It seems that along the remainder of the aquaculture coast these devices are in use without licences, Marine Scotland are aware of this and nothing is being done. I annex the text of the letter I sent to the Lord Advocate following that meeting, the papers sent therewith and the reply, which came not from him but from Marine Scotland. Condoning apparent illegality is an extremely bad look for a progressive government.

There is a very simple, environmentally sound and totally effective way to resolve the issue of seal predation and consign both shooting and ADDs to history. For years campaigners, such as the marine biologist and wild life expert David Ainsley, have been arguing for the fitting of double, or properly tensioned, nets. There is no reason for these not to be used, apart from the cost to an industry that is driven mainly by greed.”

Following this the Scottish Parliament met on 17 June and I wrote to the Minister, Marie Gougeon as follows:

“First of all I wish to congratulate you on your handling of yesterday's hearing, which produced a number of much needed and important reforms.

As I think you know I've been engaging with Mike Russell over the years on a variety of marine issues, most recently on ADDs. I've had the benefit of reading the email sent to you by my friend Russ Cheshire of COAST and am writing to add some further comments. I'm copying both in on this.

Russ and I were among a group of environmentalists who met with Marine Scotland on 25 November last year, when Jane Rougvie had just taken charge.

We spent a couple of hours emphasising that it is clear that the use of ADDs currently does require to be licensed, also that in terms of the regulations about injuring and harassing wildlife such licences cannot be granted. This means that, strictly, Mark Ruskell's amendment was not required,

as the law is already there, just not enforced. This was confirmed by the person from SNH, who confirmed the non use of ADDs in Shetland, because the companies there had raised the issue.

You will know that about 50 licences are currently in force re harbour and wind farm construction etc, just not fish farms. Turning an official blind eye to lawbreaking is a very bad look.

We got the impression that Ms Rougvie was rather surprised at the line her predecessors had taken.

I duly wrote to the Lord Advocate drawing his attention to this issue, but regrettably he passed the matter to MS, who issued a reply that bypassed the legal problem.

I suggest that, just as with seal shooting, MS have been letting Scottish Ministers down. Re the former they've known the American position since 2017 at latest. Perhaps they felt a derogation could be obtained, who knows? Re the latter there is an issue which is now in the public domain and unresolved.

There is no need to take time to collect data, as was suggested yesterday. There are only a few companies involved and they know what they're using. The science is there, per SNH and academic work paid for by Scottish Government over at least ten years.

They should be told to stop using ADDs forthwith and apply for licences if they think they will be granted.”

Yesterday a reply came from Mark Palmer of Marine Scotland as follows:

“Thank you for your email of 18 June 2020 to the Minister for Rural Affairs and the Natural Environment about the regulation of Acoustic Deterrent Devices (ADDs) in Scotland. Ms Gougeon has asked me to respond on her behalf as I lead the policy division responsibly for these matters.

On 17 June 2020 the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill passed its final stage in its passage through the Scottish Parliament. The Bill as passed by Parliament also places a statutory commitment (passed by an amendment endorsed by the Scottish Government) on Scottish Ministers to lay a report before the Scottish Parliament on the use of acoustic deterrent devices at fish farms no later than 1 March 2021.

The report must include—

1. information on the use made of acoustic deterrent devices on Scottish fish farms, 2. any known impacts that the use of acoustic deterrent devices has on marine mammals, 3. consideration of whether the use of acoustic deterrent devices on Scottish fish farms is sufficiently monitored, 4. consideration of whether existing provision on protection of animals and wildlife in relation to the use of acoustic deterrent devices on Scottish fish farms is sufficient, and 5. any future plans for regulation of the use of acoustic deterrent devices.

Scottish Government welcomes this commitment and is already actively progressing an element of this work through an ongoing review of the current management and regulation of ADD use at fish farms. We will set out further details of our future approach when this work has completed.

As an initial part of this work, I can confirm that Marine Scotland will be writing to the aquaculture industry on the operation of ADDs at fish farms with regard to provisions in the Conservation (Natural Habitats, &c.) Regulations 1994 in relation to the protection of European Protected Species (EPS). I hope that you find this information helpful and that it provides reassurances on this matter.”

Today I have replied as follows:

“Apart from attending a long meeting with Marine Scotland on 25 November 2019 I observed the recent deliberations of the ECCLR Committee and the recent parliamentary debate. I regret that I am not alone in feeling part of a parallel world in relation to the issue of the legality or otherwise of the use of ADDs on fish farms. I cannot state the issue as it is seen by ordinary citizens like myself more clearly than I put it in my email to members of the ECCLR Committee sent on 4 June, from which I extract the following:

“Regarding ADDs, the position, stated bluntly, is that (first) their use in Scotland is illegal in the absence of a licence from Marine Scotland and (second) licences cannot be granted, because their use inevitably “harasses or disturbs” protected species such as whales, dolphins or porpoise.”

It remains a complete mystery why, for example, a company carrying out necessary works of repair on an oil rig or a pier routinely complies with the law by applying for an EPS licence, which will be granted on the grounds that harassment or disturbance cannot be avoided, whereas fish farm companies simply go ahead with deploying hundreds of ADDs without bothering to apply for licences.

I have been trying very hard to think of a respectable reason why Marine Scotland has not already, as soon as you discovered that ADDs were routinely in use without licences, reminded operators of the need to apply. Can you explain why this is the case, please?”

Further developments will be reported.

Deliberately or Recklessly Harassing Wild Animals of a Protected Species

The heading is taken from the “Conservation (Natural Habitats, &c.) Regulations 1994”, which make offences of activities such as the seal shooting and the deafening of whales, porpoise and dolphins that are rife along Scotland’s West “Aquaculture Coast”. But each year since 1994 these practices have been going on, with dozens of seals shot and about 150 seal screechers, alias whale deafeners, in use. Read to the end to find out what’s going on; this long post ends with a surprise!

Before aquaculture arrived in force our coastal skerries were home to thousands of seals, while porpoises and dolphins were common and occasionally whales were seen close inshore. These were a significant part of the visitor experience Scotland was able to offer, keeping tourists returning and employing locals providing wild life tours and excursions.

When cages full of salmon arrived in their home territory it was for the seals as if Christmas had come not just early, but every day. With salmon cages consisting of just a single piece of netting, often not in the best condition, it was too easy for them to crash against the net, grab a bite of salmon and depart. The local companies reacted by shooting them, with the result that in most of the waters of, for example, Seil, Shuna and Melfort, seals are now only occasionally seen. It seems that only relatively inaccessible spots have been safe, for example in the Cuan Sound, where there are usually a few families hauling out.

From Day One there has been a very simple solution to the problem of seal predation, to fit a second net outside the inner one and tension both to keep them apart. The outer net can be of a very wide mesh, as it only needs to be seal proof, not salmon proof. Wildlife experts like David Ainsley have been campaigning for these to be made compulsory for years, but only a small number of operators have adopted them. They are of course significantly expensive and have to be properly maintained.

Public outcry, coupled with the activity of seal warriors such as Mark Carter’s Marine Concern, plus various petitions to the European Commission, resulted not in, as you might expect, shooting being banned, but in it’s being allowed under licence. Companies were now supposed to go through the motions of finding out which seals were “guilty” of trying to access their natural food in their own habitat and only condemn those ones to death. As with every other aspect of aquaculture regulation companies are trusted to be honest about this. It seems that some politicians do believe in fairies.

Given that there was a safe and humane option it’s strange that shooting was allowed to continue, even under licence. Operators realised that eventually it would be banned and started to develop an alternative, screeching devices to scare seals off by frightening them. There are now many different designs of these on the market, some emitting random and loud noises, some continuous ones. Generically they are referred to as Acoustic Deterrent Devices (ADDs).

By the way, there seem to be two problems with ADDs. First, there is growing evidence that they are actually useless and suggestions that there may even be a “dinner bell” effect. Second, there has been evidence for at least ten years that the use of ADDs deafens marine cetaceans that depend on their hearing for navigation and social interaction. While we don’t know for sure, it’s possible that this has been responsible for the increasing incidents of whale strandings along the aquaculture coast.

But isn’t deafening whales also “deliberately or recklessly harassing” a protected species? Of course it is!

Freedom of Information requests have shown that at any one time Marine Scotland have granted about fifty licences to disturb protected marine mammals in other industries such as the construction of offshore wind farms, harbour developments and oil rigs.

But not one has been issued to the operator of any fish farm.

The reason is simple, licences are only granted when disturbance is necessary and can’t be avoided. You simply won’t get a licence when you can keep the seals out by fitting the second net, as described above.

On 25 November 2019 a group of environmentalists met with Marine Scotland to explore our concerns that about 150 ADDs are currently in use on west coast fish farms, openly without any attempt at concealment and unlicensed. Operators are commonly obtaining planning consent to instal the devices and while it’s possible that they believe such consent obviates the need for a licence to use them there is no provision in any legislation to this effect. Permission to instal doesn’t equate in law to permission to use.

Scottish Natural Heritage were at the meeting. Their representative confirmed that a fish farm on Shetland had sought their advice, had been told the scientific truth about harm and had simply decided not to use ADDs. We left the meeting without any explanation.

Later we found that on 28 July 2017 Scottish Natural Heritage had given formal advice to Marine Scotland to the effect that “there is sufficient evidence, both empirical and modelled, to show that ADDs can cause disturbance and displacement of cetaceans”, based on the research commissioned by them entitled “Establishing the sensitivity of cetaceans and seals to acoustic deterrent devices in Scotland."

Subsequently I wrote to the Lord Advocate, reciting the above narrative and ending as follows:

“I respectfully suggest that you remind both Marine Scotland and Scottish Natural Heritage of their obligation to observe the law and that they be invited in turn to advise fish farm operators that they must discontinue the use of ADDs unless and until they are granted the appropriate licence.”

The reply came not from him, but from Marine Scotland, as follows:

“Thank you for your letter of 28 November 2019 to the Lord Advocate on behalf of members of the Coastal Communities Network regarding implementation of the EU Habitats Directive in relation to marine European Protected Species (EPS). As your letter concerns Marine Scotland’s work, I have been asked to respond.

I would like to reassure you that the Scottish Government is fully aware of its commitments under the EU Habitats Directive to provide strict protection to cetaceans in Scottish waters. I can further assure you that we continue to work closely with Scottish Natural Heritage (SNH) and other partners in reviewing evidence on the potential for impacts on cetaceans from ADDs, including the information presented in your correspondence.

You will appreciate that this is a complex issue and further work is required. That is why the Scottish Government is currently undertaking a comprehensive programme of work on this matter, including a review of the current regulation and management of ADDs at fish farms and an ongoing research project to gather information on the status and extent of ADDs use across Scottish fish farms. This work will help ensure that where ADDs are used, they are appropriately regulated, whilst minimising environmental impacts.

As the competent authority for aquaculture development, local planning authorities consider predator control measures, including ADDs, as part of the planning process, taking advice from SNH. ADD deployment plans are increasingly being adopted for new developments on the west coast of Scotland as a mitigation tool, and are often a condition on the planning permission. That said, the Scottish Government appreciates the need to consider the current regulatory framework covering ADD use, including the licensing process, which is being undertaken through its review.

The review will report to Scottish Ministers in 2020. The Scottish Government has already written to the aquaculture industry to inform them of the ongoing programme of work, including the regulatory review, and will do so again once the review has finished to inform them of its outcomes.

The research underpinning this review will provide the first comprehensive assessment of where and how ADDs are used at all fish farms across Scotland. This will enable better mapping of devices and inform the development of science-based industry guidance on the use of ADDs to ensure that any future use is in a manner that minimises disturbance to marine wildlife, including cetaceans. In parallel, we continue to work with industry, academic institutes and other countries to investigate the effectiveness of other non-lethal options to enable the industry to address the problem of seal predation.

I hope that you find this information helpful and provides the reassurances that you and other members of the Coastal Communities Network require.”

In Summary: It’s all fine, nothing to see, move on. No attempt was made to address the issue of legality. And why spend time and civil service resources on gathering information on “the status and extent of ADDs use across Scottish fish farms”, when simply reminding them to apply for licences would identify them?

We were left wondering what to do next. We can’t sue the Lord Advocate to make him act, nor can citizens prosecute fish farms privately. Judicial Review would be available if a farm actually got a licence, as that would be a “decision” of a public body that could be challenged in court within the statutory three month time limit. No applications means no decisions, means no judicial reviews!

Then, out of the murk came the American cavalry to the rescue!

Last week members of the Scottish Parliament's Environment Committee, the ECCLR, were surprised by a deputation from Marine Scotland giving evidence about a late amendment to the Animal Welfare Bill … banning seal shooting!

Since 2017 politicians and environmentalists alike have known that the United States has banned the importation of foodstuffs produced by methods involving cruelty to animals. Countries using such practices have been given until 1 January 2021 to amend their practices.

It’s inconceivable that Marine Scotland have only just become aware of this. Far more likely is that either the Scottish Government, or possibly that UK Government on its behalf, has been lobbying in attempts to obtain a derogation to allow practices such as seal shooting to continue. We may have just seen an early example of our politicians not having quite the clout they think they have, under the “Special Relationship”.

Opposition members of ECCLR were less than happy at the lateness and lack of a proper explanation. Mark Ruskell pointed out that the American law is wide enough to include ADDs and further clarity is awaited. He is absolutely right; while the deaths of a hundred or so seals a year is extremely unpleasant it doesn’t impact upon their survival as a species as much as does causing irremediable injury to already endangered cetaceans.