Download Consultation on Marine Strategy Framework Directive

[email protected]
Marine Strategy Framework Directive Implementation Team
Area 8B Millbank
c/o
Nobel House
17 Smith Square
London
SW1P 3JR
20th April 2015
Dear Sir/Madam,
Marine Strategy Framework Directive: Proposals for UK Programme of Measures
Thank you for seeking the views of Scottish Natural Heritage (SNH) on this consultation. SNH
consider the Marine Strategy Framework Directive (MSFD) to be a key piece of legislation to
help Member States manage their marine areas sustainably, protecting the marine
environment and, where appropriate, supporting its recovery or enhancement.
This consultation reflects progress toward the UK’s delivery of requirements under the MSFD.
However, for many descriptors work is still underway to develop targets and indicators, and in
turn the monitoring, that will support the identification of measures and assessment of their
adequacy for Good Environmental Status (GES). Consequently, reporting must be clear about
the gaps and uncertainties and identify actions to continue the iterative process. We are also
aware of the challenge of integrating assessments across descriptors and sub-divisions of
regional seas. The approach to this work in 2017 (prior to the MSFD second cycle starting in
2018) will be important for understanding the sufficiency of measures for GES. A key
component will be for monitoring to distinguish changes associated with prevailing conditions
(including climate change) from those for which further measures can be adopted through the
MSFD. We will continue to provide advice and welcome future consultation.
The documentation has progressed considerably from pre-consultation drafts, with improved
content, structure and clarity. Nevertheless, we have some general and detailed comments.
This letter sets out our over-arching comments on the proposed Programme of Measures for
the UK. Our detailed responses to consultation questions are provided in Annex 1, given
separately for each GES Descriptor relevant to our remit.
Conclusions reached regarding sufficiency of measures for GES
Section 5 in each annex of the report asks ‘What contribution will the measures identified
above make towards the achievement of GES and the related environmental targets by 2020?
What is the level of certainty…?’. The answers given are sometimes ambiguous and would
benefit from clarification of the need for further measures or science.
Regarding the level of certainty, this information should be accompanied by reference to the
evidence used in reaching this conclusion. It is likely that many conclusions also necessitate a
Scottish Natural Heritage, Great Glen House, Leachkin Road, Inverness, IV3 8NW
Tel: 01463 725000 Fax: 01463 725067
www.snh.gov.uk
Dualchas Nàdair na h-Alba, Taigh a’ Ghlinne Mhòir, Rathad na Leacainn, Inbhir Nis, IV3 8NW
Fòn: 01463 725000 Facs: 01463 725067
www.snh.gov.uk/gaelic
degree of expert judgement, but the ongoing work on targets, indicators and monitoring
should move us towards a defensible evidence base and greater certainty for all descriptors.
MPAs versus ‘wider-seas’ measures
SNH consider that the proposed Programme of Measures places an over-reliance on the MPA
network (SACs, SPAs, MCZs, NC-MPAs and SSSIs) for achieving GES at the scale of MSFD
regional seas, particularly in relation to benthic habitats. We suggest that the recent Article 17
reports (under the Habitats and Birds Directives) should play a clear role in determining the
extent to which designated sites contribute to GES. Based on these reports, we consider it
inappropriate to be so reliant on measures associated with designated sites. This is consistent
with Scottish Government policy to enhance conservation in the ‘wider seas’1.
Each of the report annexes ask the question “Do any of the proposed measures above
contribute to the development of a coherent network of Marine Protected Areas?”. We would
answer ‘Yes’ in all cases because, whether directly or indirectly, any measure that improves
or maintains the status of a physical, chemical or biological aspect of the wider marine
environment will also benefit the MPA network. However, a more pertinent question would be
‘To what extent does the MPA network contribute to GES?’. Notwithstanding our comment
above, the detailed analysis required to answer this question has not been done, so the need
for further measures, within MPAs or in the wider seas, has not been fully considered.
There is capacity for further measures outside designated sites that could make a substantial
contribution towards the maintenance or achievement of GES for various descriptors. These
may often be progressed under existing/forthcoming legislative tools, voluntary codes or
strategic planning processes. Examples may include a modernised approach to the spatial
and effort-based management of fisheries alongside other marine users, or a more robust
means of including cumulative impact assessment in planning and consenting decisions.
Such concepts can be progressed through marine planning, but require clarity of the role of
marine planning in delivering the requirements of the MSFD.
Existing, planned and new measures
None of the measures have been identified as ‘new’, instead being categorised as existing or
planned. This may partly relate to ambiguous definitions for ‘planned’ and ‘new’ measures: (i)
planned measures – “already agreed but not yet implemented”; (ii) new measures – “planned
but not yet agreed”. However, many of the measures do not appear to fit their categorisation,
such as ‘existing’ measures that have not yet been agreed/implemented, or ‘planned’ (or
proposed) measures that have not been formally agreed.
For example, there are potential new designated sites that are out for consultation, have been
proposed to the relevant authorities, or for which the need has been identified in principle.
These should not be regarded as ‘agreed’ until they have been formally adopted by Ministers.
Furthermore, it may also be considered that designation of a site is not a ‘measure’ at all, with
the measure being the management of activities that would otherwise affect the conservation
objectives of a site. Management measures are not in place for all ‘existing’ sites.
Problems of categorising measures also apply to many other matters, such as the multiannual plans and management of deep sea fisheries under the Common Fisheries Policy,
invasive species management on islands, Scottish regulations on ‘Alien and Locally Absent
Species in Aquaculture’, and the ‘freezing’ of scallop entitlements in Scotland.
1
See the Strategy for Marine Nature Conservation in Scotland’s Seas at
http://www.gov.scot/Topics/marine/marine-environment/Conservationstrategy/marineconstrategy
2
Given the likelihood of not achieving GES for particular aspects of some descriptors, we
recommend that the final report for the Programme of Measures at least provides clear
indications of descriptors for which there is or may be a need to develop new measures. This
should highlight whether work is reliant on further development of targets, indicators and
monitoring under Parts 1 and 2 of the Marine Strategy, and include identification of likely
mechanisms for developing and delivering measures.
While acknowledging that climate change mitigation is addressed via other mechanisms
(regarded in MSFD as part of the prevailing conditions to be considered as context in the
setting of measures), we highlight the potential relevance of measures to support adaptation
of environmental receptors to future climate-driven scenarios. For Scotland, this necessitates
clarity on the interaction between the MSFD and our Climate Change Adaptation Programme.
Generic measures
We welcome the inclusion of a section on generic measures, although note that they are
actually broadly applied mechanisms and processes that should lead to measures. The text
on marine planning is useful in identifying the potential role of marine plans in adopting polices
to support the achievement or maintenance of GES, but could more explicitly promote policies
that steer potentially damaging activities away from sensitive habitats and species.
Despite the provision of text on generic measures, some of the relevant annexes for each
descriptor (but not all) repeat this information. Information in annexes about measures arising
from the consenting framework could be disentangled, separating strategic processes (e.g.
marine planning; Strategic Environmental Assessment (SEA)) from project-level processes
(e.g. Environmental Impact Assessment (EIA)). Some processes, such as Habitats
Regulations Appraisal (HRA) can apply at plan or project level, and this distinction should be
made. However, reference to these generic measures in annexes would be better if focussed
on existing policies within marine plans and/or identifying the types of policies that marine
planning could deliver in order to fill gaps in the Programme of Measures.
It would be useful to acknowledge the Scottish Government’s three-pillar approach to marine
nature conservation, which explicitly includes ‘wider seas policies and measures’ in addition to
‘site protection’ and ‘species conservation’. This provides part of the high-level policy
framework for MSFD measures in Scotland. The Priority Marine Features (PMFs) list is also
relevant, having been developed to focus marine conservation efforts within Scotland by
prioritising marine species and habitats already listed as being of conservation importance.
The Water Framework Directive (WFD) is detailed as a ‘generic measure’. In Scotland, where
the application of WFD is intended to apply to 3 nm, further work is needed to ensure that the
directive is meaningfully applied in the marine environment. Although the consultation
document states that sea lochs are ‘transitional waters’ captured by the WFD, note that very
few sea lochs are classified by SEPA as ‘transitional’. Consequently, most sea lochs are
regarded as ‘coastal waters’ and are relevant to implementation of the MSFD in Scotland.
We hope these comments are helpful. Should you wish to discuss them further, please
contact Chris Leakey on 01738 458661 or by email at [email protected].
Yours sincerely
Andrew Bachell
Director of Policy and Advice
cc: Marine Scotland
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Annex 1
We provide comment in this section on the following GES descriptors. We do not provide any
comment on proposals for Descriptors 5, 8 or 9, which do not fall within the remit of SNH.
A)
B)
C)
D)
E)
F)
G)
H)
I)
J)
K)
Descriptors 1 (biodiversity) and 4 (food-webs); Fish
Descriptors 1 (biodiversity) and 4 (food-webs); Marine mammals
Descriptors 1 (biodiversity) and 4 (food-webs); Birds
Descriptors 1 (biodiversity), 4 (food-webs) and 6 (sea-floor integrity); Pelagic habitats
Descriptors 1 (biodiversity), 4 (food-webs) and 6 (sea-floor integrity); Benthic habitats
Descriptor 2; Non-indigenous species
Descriptor 3; Commercially exploited fish and shellfish – fish (and Nephrops)
Descriptor 3; Commercially exploited fish and shellfish – shellfish
Descriptor 7; Hydrographical conditions
Descriptor 10; Marine litter
Descriptor 11; Underwater noise
For each descriptor, the consultation poses the following questions:
Question 1: Are the proposed measures for the Descriptor sufficient to meet the requirements
of the Directive, bearing in mind the current limitations in our knowledge base?
Question 2: Are there any additional existing or planned measures for this Descriptor we have
not identified that might also contribute to the achievement of the relevant environmental
targets and the achievement or maintenance of GES?
Question 3: Are there any new measures that are needed? If so please provide details and
evidence to show how they would contribute towards the achievement or maintenance of GES
or the environmental targets as set out in the Marine Strategy Part One.
Question 4: Are there any measures proposed that you think are not justified or that will not
contribute to towards the achievement or maintenance of GES or the environmental targets
set out in the Marine Strategy Part One?
Question 5: Do you agree with the justifications provided for the use of exceptions under
Article 14?
Question 6: Are there any significant human activity-related pressures that are not addressed
by the proposed measures?
Where appropriate we also provide specific comment on other issues arising in relation to the
text on each Descriptor.
A) Descriptors 1 and 4; Fish
Question 1:
The identified measures will make a substantial contribution to the achievement of GES for
fish. Our key uncertainty regarding the sufficiency of the measures stems from the absence of
targets for fish in the inshore/coastal areas. Consequently, there is no vision for what GES
requires for fish in these areas, resulting in a potential over-reliance on Marine Protected
Areas (MPAs) and the Common Fisheries Policy (CFP) for measures. MPAs will contribute
toward achieving GES for fish, whether as protected features of sites or through indirect
benefits, but the range of species and geographic areas benefiting will be limited. By
improving the status of particular stocks, measures under the CFP may be most beneficial in
recovering or improving the use of some of the potential nursery or spawning ground function
of inshore/coastal areas. However, it may be appropriate to further consider any other
pressures occurring in inshore/coastal areas that limit this functionality.
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Given their particular sensitivities there is also uncertainty over the sufficiency of measures for
sharks, skates, rays, deep sea species and diadromous species. Evaluation of monitoring
outputs will be important to inform the need for any further measures. Nevertheless, the
identified measures will make a valuable contribution to achieving GES for these species.
Question 2:
The Wildlife and Natural Environment (WANE) (Scotland) Act 2011 provides amendments to
the Wildlife and Countryside Act, some of which are relevant to fish communities. There are
equivalent versions of the WANE Act for other devolved administrations.
The Sharks, Skates and Rays (Prohibition of Fishing, Trans-shipment and Landing) (Scotland)
Order 2012 also provides relevant measures.
Question 3:
Once targets and monitoring programmes have been developed and are in use, the need for
measures relating to inshore/coastal fish communities may be identified. Note that the term
‘inshore/coastal fish’ is not yet properly defined in the context of the MSFD. However, we
consider it to refer to fish in the near-shore area (approximately 1nm or less from the shore)
and also with consideration to habitats in these waters which are of some functional
importance to these species.
As highlighted above, future consideration of the need for further measures for
elasmobranchs, deep-sea species and diadromous fish will also be important.
Although it has not been identified as such, the proposed MPA including basking shark could
be regarded as a ‘new’ measure due to being neither implemented nor formally agreed.
Question 4:
No.
Question 5:
Yes.
Question 6:
No.
Other comments:
In Scotland, measures relating to managing activities on SSSIs are delivered through the
Nature Conservation (Scotland) Act 2004.
Note that this combination of descriptors for ‘fish’ should include cephalopods.
B) Descriptors 1 and 4; Mammals
Question 1:
For grey seals and cetaceans the identified measures are relatively likely to be sufficient to
meet requirements, subject to the results of further monitoring. The efficacy of measures for
reducing mammal bycatch is uncertain and should be kept under review.
5
However, for harbour seals, their poor status in some areas and the knowledge gaps as to the
cause of declines means that there is considerable uncertainty regarding the sufficiency of
measures to achieve GES. Identified measures may partially help mitigate declines, but their
sufficiency for GES is questionable and the risks should be more clearly articulated.
Question 2:
Text relating to European Protected Species (EPS) should refer to species-licensing powers,
including the capacity for attaching license conditions. Also, note that there are subtle
differences in the EPS legislation between Scottish Territorial Waters and offshore/UK waters.
Various technical measures for fisheries reduce the likelihood of marine mammal
entanglement. However, the legislative landscape for management of drift and static net
fisheries, for example, is complex; we suggest Marine Scotland may assist in clarifying the
legislative measures relevant to Scotland.
Question 3:
New measures are likely to be needed if GES is to be achieved for harbour seals. However,
the poor understanding of pressures causing declines is limiting the potential for identifying
effective measures.
Following further monitoring and assessment of the efficacy of identified measures,
consideration of new measures to reduce mammal bycatch may be appropriate.
The proposed NC-MPA and draft SACs for cetaceans could be regarded as ‘new’ measures
due to being neither implemented nor formally agreed.
Question 4:
No.
Question 5:
No exceptions are identified under Article 14 but, if possible to achieve at all, we would
consider that GES for harbour seals will not be possible by 2020.
Question 6:
Strong links to measures related to Descriptor 11 (Noise) would be appropriate, but the
infancy of scientific understanding of underwater noise impacts and consequently target
development means that few tangible measures are proposed at present.
Impacts on prey-sources are not addressed by proposed measures in this annex, but see
comments for measures regarding GES of fish.
Other comments:
Section 1 of the annex states that “…grey seal… west of Scotland populations have not
increased since the early 1990s”. Note that grey seal pup production numbers have
increased; it is important to distinguish different population parameters.
It also lists fin whales as one of the most abundant cetacean species in UK waters. The
evidence for this statement is not apparent and not supported by data used within the
Cetacean Atlas (see http://jncc.defra.gov.uk/page-2713).
6
As marine mammal targets reflect those under the Habitats Directive, it may be particularly
useful to refer to Article 17 reports under the Habitats Directive.
The wording used regarding seal conservation measures under the Marine (Scotland) Act
2010 is not accurate and has legal implications. The text should read ‘It is an offence to
intentionally or recklessly harass seals at designated haul-outs in Scotland’.
In Scotland, measures relating to managing activities on SSSIs are delivered through the
Nature Conservation (Scotland) Act 2004.
In Scotland the Habitats Directive is transposed through a combination of the Habitats
Regulations 2010 (in relation to reserved matters) and the Conservation (Natural Habitats,
&c.) Regulations 1994. The text on harbour porpoise draft SACs is out of date; this text should
be updated prior to publication of the Programme of Measures.
Note that the Scottish Marine Wildlife Watching Code (SMWWC) does not provide a
regulation or byelaw, it is simply a guidance document to support best practice. However,
application of its content may be stipulated in licence conditions by regulators.
Wording in relation to proposed MPAs should make it clearer that the sites are not solely
proposed for the named cetacean species. For example, it could be stated that ‘SNH has put
forward three MPA proposals; two of these proposals include minke whales as a protected
feature, and one includes Risso’s dolphin as a protected feature.’
Page 57 states that “As cetaceans are migratory species….”. Not all cetacean species are
migratory (which suggests fixed, regular movements between locations used specifically for
purposes such as foraging and breeding). They are, however, often widely-dispersed and
highly mobile and so the need for international or regional collaboration is still appropriate.
The paper regarding marine mammal management units is correctly referred to. Note that this
is now published and available online: Report 547: Management Units for cetaceans in UK
waters (January 2015).
C) Descriptors 1 and 4; Birds
Question 1:
For non-breeding shorebirds and breeding waterbirds we agree that existing measures should
be sufficient to meet the requirements of the MSFD. Certainty of measure sufficiency may be
bolstered through continued improvements to monitoring and through proper integration of
terrestrial and marine planning processes.
For breeding seabirds we agree that there remains uncertainty about the cause of some
declines in seabird parameters and therefore in certainty about the sufficiency of proposed
measures. The identified measures should make a positive contribution towards the
achievement of GES, but ongoing monitoring and science will be important to establish the
need for further measures.
Question 2:
Fisheries management measures arising from mechanisms other than the CFP may indirectly
support birds through protection of prey resources or the habitats that support them. This may
include measures under the Inshore (Fishing) Scotland Act 1984 or the Sea Fisheries
(Shellfish) Act 1967, but also any management of intertidal fisheries and bait-digging.
7
Sites of Special Scientific Interest (SSSIs) have not been identified as providing measures of
relevance. Intertidal SSSIs afford protection to many species of bird and their habitats.
Question 3:
Although they have not been identified as such, some of the measures detailed (marine
SPAs; island-specific measures to manage impacts of invasive species) could be regarded as
‘new’ measures due to being neither implemented nor formally agreed.
Further new measures may be needed, but should be informed by the results of ongoing
monitoring and research. Evidence suggests that kittiwakes and some non-breeding
shorebirds may be particularly unlikely to achieve GES by 2020, such that it may be
appropriate to consider options for further measures.
Work is ongoing in relation to by-catch risk for birds and a strategy for managing impacts from
invasive species on islands. When these have progressed it is likely to be appropriate to
identify new measures.
In the medium to long term, the identification and implementation of further measures for
climate change adaptation would also be of merit. For example, managed realignment of
shores or allowing natural coastal change (as opposed to artificial defences) may support the
maintenance or achievement of GES for birds reliant on intertidal or coastal habitats. Some
such measures may not strictly sit within the geographical remit of the MSFD (many such
sites will be estuarine and classified as transitional waters), but may nevertheless be relevant
for meeting the requirements of the MSFD. This illustrates the importance of achieving clarity
on the mechanisms for delivery of measures for environmental features that are located on
the boundaries between different legislative tools, such as WFD. Also of relevance in this
example is the lack of clarity on interaction between the MSFD and Scotland’s Climate
Change Adaptation Programme2.
Question 4:
No.
Question 5:
No specific exceptions are identified in relation to Article 14.
Question 6:
No.
Other comments:
In section 5 of the bird annex the text under ‘Habitats Directive’ is also relevant to the Marine
(Scotland) Act 2010 and the Marine and Coastal Access Act 2009. It is correct to identify
tourism and recreational activities as sources of potential disturbance impacts, but we would
highlight that there are many other activities that may also cause disturbance.
In relation to the question ‘Do any of the measures have any impact on the waters of other
countries in the subregion?’ it should be noted that some of the measures may be relevant to
non-breeding or wintering populations in the UK that then breed elsewhere in the subregion.
2
http://www.gov.scot/Publications/2014/05/4669
8
D) Descriptors 1, 4 and 6; Pelagic habitats
Question 1:
Yes, the proposed measures are likely to be sufficient to maintain plankton communities and
their habitats, which are already in good condition. Although mitigation of climate change
impacts is not within the remit of MSFD measures, it is important to recognise them as an
important prevailing factor in the status of plankton communities.
Question 2:
Measures under Descriptor 7 (hydrographical conditions) should also contribute to the
maintenance of GES for pelagic habitats, given the inherent role of hydrography in the
dynamics of plankton communities.
At a broad scale and in the longer term, climate change needs to be considered as an
important prevailing factor. This is true of many descriptors, but it may be expected that
plankton communities will be amongst the first to exhibit significant impacts as a consequence
of change in physical parameters, such as water temperature/stratification and currents.
Question 3:
No
Question 4:
No
Question 5:
No specific exceptions are identified in relation to Article 14.
Question 6:
No.
Other comments:
In section 4 of the annex, text regarding measures under the CFP could avoid repeating text
within Descriptor 3 annexes (Commercially exploited fish and shellfish).
E) Descriptors 1 and 6; Benthic habitats
Question 1:
The identified measures will make an important contribution to GES for benthic habitats, but
we consider that they are not sufficient to achieve GES for habitat condition and physical
damage criterion. For rock and biogenic habitats, and for sediment habitats protected within
designated sites, we consider that the proposed Programme of Measures places an overreliance on measures associated with designated sites, for which the Habitats Directive Article
17 reports show that the 5% threshold is not met for many habitats in designated sites. We
acknowledge that recent and ongoing efforts to improve fisheries management in designated
sites (following the legal judgement that fisheries are a ‘plan or project’ under the Habitats
Directive) may help remedy this. However, we do not anticipate that these measures, or
9
indeed the general reliance on measures associated with designated sites for some habitattypes, are sufficient to meet the requirements of the MSFD.
For undesignated (‘predominant’) sediment habitats there are only trend-based targets. Some
of the measures may help reduce pressures, but we question whether the absence of a
defined target is sufficient for widely distributed and sometimes heavily impacted habitats.
Question 2:
Special Protection Areas (SPAs) are designated under the Birds Directive through the
relevant domestic legislation. Currently there are many SPAs that provide protection for
intertidal habitats. There are also proposals for marine SPAs that will afford some protection
to habitats with an important function for the qualifying bird features.
Many of the orders made under domestic fisheries legislation, such as the Inshore Fishing
(Scotland) Act 1984, provide some level of protection to benthic habitats, whether that is their
primary purpose or a secondary benefit. Lists of Scottish Statutory Instruments in force are
available through http://www.gov.scot/Topics/marine/Compliance/legislation.
Question 3:
Although they have not been identified as such, the proposed NC-MPAs for benthic features
could be regarded as ‘new’ measures due to being neither implemented nor formally agreed.
A large amount of work continues on the development of benthic targets and indicators.
Through the monitoring towards these, the need for further measures may be identified. For
example, measures to reduce the footprint and intensity of demersal fishing pressure on some
benthic habitats may be appropriate.
Question 4:
It is not clear that the mention of the Electricity Act 1989 adds any value beyond those
measures that may arise through the consenting framework, Environmental Impact
Assessment (EIA) and Habitat Regulations Appraisal (HRA) processes.
Points raised in relation to OSPAR are not measures and do not add to those offered through
legislation such as the Marine (Scotland) Act 2010 or the Habitats and Birds Directives.
While we agree that measures arising through the Water Framework Directive (WFD) should
make an important contribution to MSFD requirements, in Scotland there has not yet been
much emphasis on developing WFD measures for transitional / coastal waters (which in
Scotland extend to 3 nm under the WFD), although we expect further progress to be made in
the next round of river basin management planning. Also, although the consultation document
states that sea lochs are ‘transitional waters’ captured by the WFD rather than MSFD, it is
important to note that very few sea lochs are classified by SEPA as ‘transitional’.
Consequently, most sea lochs are regarded as ‘coastal waters’ and are relevant to
implementation of the MSFD in Scotland.
Question 5:
No specific exceptions are identified in relation to Article 14.
Question 6:
Note that more measures are likely to be appropriate outside designated sites, especially on
sediment habitats subject to widespread and intense fishing pressure.
10
We also highlight that the status of saline lagoons in relation to coverage by MSFD or WFD is
currently unclear. The relevant mechanisms should be identified to ensure that appropriate
targets, monitoring and measures are identified.
Furthermore, we recommend a watching brief on the development of seaweed harvesting
activity and whether any forthcoming/existing licensing mechanisms are sufficient to avoid
compromise of GES for relevant descriptors.
With the potential progression of large offshore developments and new designated sites, the
potential for benthic impacts arising from the displacement of fishing activity should be
assessed in order to identify the need for any future measures to match sustainable fishing
effort to the available space.
Other comments:
In Scotland the Habitats Directive is transposed through a combination of the Habitats
Regulations 2010 (in relation to reserved matters) and the Conservation (Natural Habitats,
&c.) Regulations 1994.
Note that, while measures under the CFP do reduce some impacts of fishing on benthic
habitats, they do not ‘minimise’ impacts as the text suggests.
Contrary to the statement on page 89, there are four further NC-MPA proposals being made
under the Marine (Scotland) Act 2010 that include benthic features (two if not including
geodiversity).
Percentage targets relating to the English and Welsh marine area within MPAs are
highlighted. However, it is not clear how these relate to the 5% threshold for the target for
GES at the UK level.
F) Descriptor 2; Non-indigenous species
Question 1:
As the targets and monitoring programme related to GES for non-indigenous species are still
under development, it is not possible to fully understand the sufficiency of the proposed
measures. Nevertheless, the measures identified should make a positive contribution towards
meeting the requirements of the directive.
Question 2:
No, although other good examples of biosecurity plans could be given, such as the Shetland
biosecurity
plan
see
http://www.nafc.uhi.ac.uk/departments/marine-science-andtechnology/BiosecurityPlan.pdf
Question 3:
Development and implementation of measures within further biosecurity plans would be
beneficial. These may be sector, activity or area specific. For the latter, these may be usefully
progressed by the various regional-level marine planning organisations that are emerging
(e.g. Regional Marine Planning Partnerships in Scotland).
Although they have not been identified as such, some of the measures detailed could be
regarded as ‘new’ measures due to being neither implemented nor formally agreed.
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Question 4:
No.
Question 5:
No specific exceptions are identified in relation to Article 14, but we note that some of the
measures proposed will require internationally co-ordinated action to be fully successful
(including outside the EU). Despite the exemption, opportunities should be taking to enhance
an internationally coordinated approach.
Question 6:
No.
Other comments:
There is reference to “the Wildlife and Countryside (Scotland) Act 1981”. There is no such
Scotland-specific legislation. The Wildlife and Countryside Act is UK legislation which has
been subsequently amended in Scotland by the Nature Conservation (Scotland) Act 20014
and, more recently, by the Wildlife and Natural Environment (Scotland) Act 2011.
Examples are given of ‘Invasive Species Actions Plans’. Note that the two SNH reports listed
are not actions plans, but guidance on the development of biosecurity plans.
“Scottish Control Orders” are mentioned in Section 4 of the annex. We assume this is
intended to refer to ‘Species Control Orders’, as detailed at http://www.snh.gov.uk/protectingscotlands-nature/nonnative-species/sco/
Regulation (EU) No 1143/2014 is mentioned in Section 4 of the annex, but it may be useful to
mention that action will be targeted towards a specific list of INNS species of EU concern only.
An invasive alien species will be considered to be of EU concern if the damage that it causes
in affected Member States is so significant that it justifies the adoption of dedicated measures
applicable across the Union, including in the member states that are not yet affected or are
even likely to be affected.
It is mentioned that a lack of information on abundance, distribution and impacts of NIS is a
key gap for progressing measures. Note that Regulation (EU) No 1143/2014 may help to
establish an information support system which will include a data support mechanism
connecting existing data systems on NIS. This should allow for a more efficient and effective
method of sharing information on NIS between countries.
Ballast water guidance is mentioned in relation to addressing the commercial shipping
pathway. It is not clear if this is also the International Maritime Organisation (IMO) guidance
which is yet to be ratified (hence being guidelines rather than regulation).
G) Descriptor 3; Commercially exploited fish and shellfish – fish (and Nephrops)
Question 1:
If measures under the CFP are successfully implemented across all relevant species and
fisheries, then it is likely that they will be sufficient to meet the relevant requirements of the
directive for species managed under the CFP. However, not all measures have been
implemented or fully defined yet, so it is not possible to be certain of their sufficiency.
12
Question 2:
Although this annex addresses commercial species managed under the CFP, it does not
detail any of the existing, planned or potential new measures through legislation from the UK
government or devolved administrations. For example, in Scotland there are many measures
under various pieces of legislation (e.g. the Inshore (Fishing) Scotland Act 1984 provides
various spatial measures that exclude particular gear types either seasonally or permanently3)
that will benefit, either directly or indirectly, the status of these commercial species.
Question 3:
The need for new measures should be determined by monitoring whether those measures
due under the new CFP are successful in delivering against targets for GES.
Spatial management of the Nephrops fishery could be explored with a view to enhancing
stock status in unison with benefits for achieving GES for descriptors 1 (biological diversity), 4
(marine food-webs) and 6 (seafloor integrity).
Question 4:
Regionalisation under the CFP will not in itself contribute to the achievement of GES, although
it is conceivable that a better-informed process may be able to inform more geographically
relevant decisions for stock sustainability.
The European Maritime and Fisheries Fund is not a measure, but may provide financial
support for the delivery of measures.
Question 5:
Yes.
Question 6:
No.
H) Descriptor 3; Commercially exploited fish and shellfish – shellfish
Question 1:
The measures identified will make a positive contribution to GES, but doubt remains as to the
sufficiency of these measures. We also question whether it is sufficient to limit the detailing of
measures to edible crabs (Cancer pagarus), lobsters (Homarus gammarus) and king scallop
(Pecten maximus) – see further comments below.
Question 2:
The Sea Fisheries (Shellfish) Act 1967 is mentioned, but only in relation to restrictions on the
landing of berried or soft-shelled crabs. This legislation provides a mechanism for many more
measures, including the provision of Regulating Orders and Several Orders, which can be
greatly beneficial in effective management of shellfish stocks and the habitats that support
them.
3
see The Inshore Fishing (Prohibition of Fishing and Fishing Methods) (Scotland) Order 2004
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Scottish Inshore Fisheries Groups (IFGs) are identified, yet they have resulted in relatively few
tangible measures thus far. There are a few examples of IFGs introducing voluntary measures
(e.g. v-notching off the Solway coast) but most measures arising from IFGs require
implementation through the Sea Fisheries (Shellfish) Act 1967 or the Inshore (Fishing)
Scotland Act 1984.
Question 3:
Spatial and effort management of the scallop fishery could be explored with a view to
enhancing stock status in unison with benefits for achieving GES for descriptors 1 (biological
diversity), 4 (marine food-webs) and 6 (seafloor integrity). Similar principles should be applied
to any new emerging or expanding mollusc fisheries (e.g. razor fish).
The achievement of GES for crab and lobster stocks may be supported by the use of creel
limits.
A proposal for a Regulating Order for management of shellfish fisheries in the Firth of Clyde is
in the early stages of consideration. If successful it is expected that this will result in measures
that can contribute to the achievement of GES for shellfish, fish and benthic descriptors.
Question 4:
No.
Question 5:
Yes.
Question 6:
No.
Other comments:
It is noteworthy that the annex only considers GES and relevant measures relating to edible
crabs (Cancer pagarus), lobsters (Homarus gammarus) and king scallop (Pecten maximus).
Although these are indeed the primary shellfish fisheries (except for Nephrops which is
managed under the CFP), other major shellfisheries include velvet crabs, squid and queen
scallops. More minor shell-fisheries include cockles, razor clams, surf clams and whelks,
although they are important in some relatively local areas. The absence of any consideration
for these fisheries could limit the likelihood of achieving GES, including in relation to the
relevance of these fisheries for other descriptors (particularly benthic habitats).
I)
Descriptor 7; Hydrographical conditions
Question 1:
On the basis of existing knowledge we consider it likely that the proposed measures are
sufficient to meet the requirements of the directive for this descriptor. However, see below.
Question 2:
No
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Question 3:
No, but see notes under question 6 below.
Question 4:
No.
Question 5:
No specific exceptions are identified in relation to Article 14.
Question 6:
Clarity is required over the reference to ‘permanent’ change within the GES characteristics for
this descriptor. Some impacts may be reversible via the removal of infrastructure but, (a) this
necessitates a clear role for decommissioning plans to actively reverse impacts, and (b) does
not account for the implications of changes in hydrographic conditions for species and
habitats in the interim, or indeed their capacity for recovery.
Some impacts on hydrographical conditions that manifest themselves at sea may originate
outside the geographical reach of the MSFD (e.g. impacts on marine hydrographic conditions
from a major estuarine development such as a tidal barrage within transitional waters). It is
not clear whether relevant measures should be associated with the MSFD, the WFD or other
mechanism. A further example (e.g. impacts on near-shore sediment dynamics from coastal
erosion and accretion) draws into question the relationship between the MSFD and measures
for climate change adaptation4. This is not just of importance for coastal habitats and their
associated species, but the manner in which coastal change is managed may also be
important for the maintenance of GES for hydrographical conditions. These examples
illustrate the importance of clarity on the mechanisms for delivery of measures for
environmental features that are located on the boundaries between different legislative tools.
Other comments:
In relation to the description of the approach and the proposed measures, it should be clearer
that these must also address the consequent impacts on species, habitats and their
interactions, as well as impacts on the physical nature of the hydrography itself.
We do not consider it possible to support or refute the statement that ‘It is not anticipated that
the scale and nature of current developments…will cumulatively influence achievement of
GES’. The understanding of cumulative impacts, or indeed how to conduct such a cumulative
impact assessment, is not sufficiently well progressed to reach a conclusion.
In section 7 of the annex it is not clear what is meant by ‘issues of aggregation’.
J)
Descriptor 10; Marine litter
Question 1:
If the measures can be successfully implemented, then we agree that they will achieve the
trend-based target. However, remaining uncertainty is partly due to a portion of the measures
requiring volunteer input and/or international coordination.
4
See Scotland’s Climate Change Adaptation Programme http://www.gov.scot/Publications/2014/05/4669
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In the future it may be possible to progress to a more defined target, based on the flux/rate of
accretion of litter, which may then be linked to the identification of sources/sinks and
associated litter budgets. In this event, further measures may need to be considered.
Question 2:
No, although note that the recently adopted National Marine Plan for Scotland, also gives
direction to forthcoming statutory regional marine planning to consider measures to deliver the
Scottish Marine Litter Strategy.
Question 3:
There is likely to be potential for further measures or for fuller enforcement of existing
regulations, in relation to both the reduction of litter entering marine systems and the removal
of existing litter. It is unlikely or impossible to completely remove litter as an issue, but the
trend-based target should continue to support continual improvement for this descriptor.
New measures to reduce the input of micro-plastics into the marine environment would also
be appropriate (see below under question 6).
Question 4:
No.
Question 5:
No specific exceptions are identified in relation to Article 14, but we note relevance in relation
to there being some reliance on internationally co-ordinated action to reduce inputs of litter to
marine systems. Despite the possible exemption, opportunities should be taking to enhance
an internationally coordinated approach (including outside the EU).
Question 6:
The presence, perseverance and impacts of micro-plastics in the marine environment is a
topic of increasing concern. It would be relevant to address this issue and appropriate
measures within annexes relating to marine litter (D10) and contaminants in fish and other
seafood (D9). Measures already identified to reduce the use and discard of plastics in the
packaging and textile industries, that may fragment into micro-plastics over time, are
important, but so will be new measures regarding micro-plastics used in cleaning
(household/personal) and cosmetic products.
Although some of the measures are relevant to its removal from the sea, the importance of
lost fishing gear as a major component of marine litter is not explicitly identified.
Other comments:
Legislative instruments placing responsibilities on land managers to keep land clear of litter
are identified. It is not clear how these measures translate to litter found in the water column,
on the seabed or even in the intertidal zone where land management and ownership, and the
implications of these, are often different from the terrestrial environment.
Note that the Scottish Marine Litter Strategy identifies both existing and new actions, with the
stated intention of implementing measures under the MSFD.
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K) Descriptor 11; Underwater noise
Question 1:
Understanding of the impacts of noise upon individuals and populations is poor, particularly in
relation to behavioural impacts. Consequently, there is not a clear understanding of what
constitutes GES for this descriptor, with indicators and targets not having yet been defined. As
such, it is not possible to say whether the requirements of the directive will be met.
Nevertheless, existing and proposed measures through the Habitats Directive and
domestically legislated nature conservation sites will have a valuable role to play in
contributing to the achievement of GES.
Question 2:
Special Areas of Conservation (SACs) are mentioned as an ‘existing’ measure. However,
there are proposals forthcoming for designated sites for features including cetaceans, for
which underwater noise are likely to be an important issue for management of activities. In
Scotland these potential new designations would come under the Habitats Directive (SACs)
and the Marine (Scotland) Act 2010 (NC-MPAs).
In due course, Regional Marine Plans within Scotland will provide a mechanism through which
to deliver further measures, whether through strategic planning of activities/developments
relative to the location of sensitive species, or through informing individual licensing decisions.
Question 3:
Potentially, but in the absence of targets and indicators for GES, it is not yet possible to
answer this.
In setting informed targets and indicators, it will also be necessary to have a fuller
understanding of the relative noise sensitivity of different species and what the population
consequences may be. This should not be limited to marine mammal species; various fish
species may be particularly relevant for further consideration.
Question 4:
The establishment of a ‘noise registry’ is not a measure, nor a mechanism for delivering
measures. It is part of the monitoring programme (MSFD Phase 2) that will subsequently be
useful for informing the need for measures.
Question 5:
No exceptions have been identified. While some may be relevant, given the early stage of
developing an understanding of GES and its targets and indicators, for this descriptor it may
be premature to answer this question.
Question 6:
No
Other comments:
Section 3 of this annex states that “…activity levels are not currently anticipated to pose a
significant threat to marine noise sensitive species at the population level”. Due to the poor
understanding of impacts, we do not agree that is possible to make such a strong statement,
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which is indeed contradicted by the next sentence in the document by noting the “..high level
of uncertainty…”.
Section 3 also states that an “operational target” has been developed for impulsive sounds.
We do not consider that the register can be described as a target.
Text relating to measures for EPS should refer to species-licensing powers, including the
capacity for attaching licence conditions for managing underwater noise impacts. Also,
reference could be made to Marine Scotland Guidance on EPS legislation (see
http://www.gov.scot/Topics/marine/marine-environment/species/19887/20813/epsguidance).
It should be clear that measures should not only be concerned with changes to the distribution
of noise-sensitive species, but also impacts resulting in physical harm, behavioural change or
reduced productivity.
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