Post by Hoppy on Jul 22, 2007 12:35:51 GMT -1
MODERNISATION OF SALMON AND FRESHWATER FISHERIES LEGISLATION
I am writing to update you on progress made in the project to modernise salmon and freshwater fisheries legislation.
In January I wrote giving the results of the Short Review of salmon and freshwater fisheries legislation held in 2006, and outlining our plan, together with the Welsh Assembly Government, to use a range of powers to introduce a significant proportion of the measures identified in the Salmon and Freshwater Fisheries Review 2000; the Water Framework Directive to implement measures on fish passage, the Fish Health Directive and the European regulation alien species, to introduce measures on the removal and introduction of live fish into inland waters.
I also highlighted that we would use the Legislative and Regulatory Reform Act 2006 (LRRA) for work on modernising powers for the management of inland fisheries. However, subsequent discussions with Cabinet Office have led us to the conclusion that the scope of permissible measures under the LRRA is less than we had anticipated; in consequence Cabinet Office have advised that we may not be able to achieve all those key issues we had sought to address.
This means that there is now a small package of critical measures dealing with the management of salmon, other migratory, and freshwater fisheries that can effectively only be delivered through primary legislation. Having reconsidered the delivery options set out in the short Review we now believe that the Marine Bill offers the most appropriate means for delivering what is needed to modernise powers for the management of fishing. While there is no guarantee of Parliamentary time for the Marine Bill, this risk is substantially lower than if we tried once again to introduce a separate Bill that concentrated solely on our issues. The Marine Bill provides a suitable and appropriate vehicle for doing so; there are clear links between the measures we wish to introduce, and those being proposed for the management of marine fisheries, which substantially reduces the risks of our proposals not reaching the statute books.
I have attached a summary of our proposals; at this stage it is not clear whether Defra or the Welsh Assembly Government will hold a separate public consultation on the draft bill, or whether this will take place as part of a pre-legislative scrutiny process, but I will ensure that you receive all the relevant papers at that time. I should explain that inclusion in the Marine Bill was simply not possible while there remained the possibility of using the LRRA; the LRRA was introduced in order to enable Ministers to amend primary legislation using a simpler and quicker process, subject to certain conditions that we ultimately did not fulfil.
Our proposals for inclusion in the Marine Bill will also address concerns about the theft of fish; we shall clarify that the Environment Agency will have the power to pursue offences against the Theft Act 1968 when a fisheries offence has also been committed, and remove the current right for owners of certain private fisheries to permit anglers to remove freshwater fish during the close season. This should enable the Agency to make byelaws requiring the live release of coarse fish caught in inland waters in England and Wales, excepting privately-run enclosed stillwater fisheries, where responsibility for determining appropriate management policy would rest with the owner of the fishery.
Progress on other parts of the modernisation project
Passage of fish
We have instructed our lawyers on our proposals to address the need of fish to have free access to feeding, breeding and nursery sites. We shall hold a public consultation on the draft Order, together with an Impact Assessment, in spring next year with the intention of laying it in Parliament after necessary revisions soon after. The Government has agreed that new regulations affecting businesses should come into force on one of two dates in the year, 6 April and 1 October (unless, for example, the UK has to comply with a specific timetable that derives from EU law). We therefore envisage that this Order will be implemented in October next year.
Ban on the sale of rod caught salmon and sea trout
We intend to introduce a “Wild Salmon Dealer Licensing Scheme” under section 31 of the Salmon Act 1986. This scheme will apply to wild salmon and sea trout only, and allow only net and trap fishermen to sell their catch. In order to ensure regulatory burdens for fishers are not increased the Wild Salmon Dealer Licence and the fishing licence will be combined where appropriate, and the scheme will only cover the first point of sale. The cost of the Wild Salmon Dealer Licence will reflect the cost of administering and enforcement of the scheme. Our aim in introducing this scheme is to limit the numbers of fish taken by anglers, which for some can amount to a significant proportion of the annual catch.
I will contact you once again with fuller details of these public consultations on the various drafts nearer to the time.
Yours sincerely
Ruth Thirkettle
Email ruth.thirkettle@defra.gsi.gov.uk
Proposal 1
Amendment of species to which the fishing licensing system and byelaw-making powers will apply.
1. The EA is currently able to apply licensing and byelaw provisions to salmon, (sea) trout, eels and freshwater fish out to 6nm from baselines. We are looking to extend this power to other migratory fish species, as fishing for lamprey and smelt may be unsustainable, as well as presenting enforcement problems for other fisheries. We are still holding discussions with Joint Nature Conservation Council on our proposals to include shad in fishing licences.
2. We will clarify that freshwater fish includes any kind of fish which is habitually found in inland waters and does not migrate to and from tidal waters, and includes freshwater crayfish and crabs, but not other (freshwater) crustacean or molluscs.
3. The Agency will have the power to licence and apply byelaw making powers to fisheries of all species in inland waters (in effect landward of Sea Fisheries Committees boundaries), which will include those marine species such as mullet or bass that can be found in significant numbers in freshwater and for which fisheries are already developing. However, we recognise that there are many species which, whilst they may survive in freshwater, do not do so in significant numbers and for which there is no need to be covered by licences. The Agency will therefore be able to excuse such fisheries from licensing requirements. Given the proposals to introduce licences for sea angling, this proposal allows measures to be made that offer consistency over the marine and inland fisheries, and ensures that there will be no duplication of species or geographical coverage.
4. The current deeming provisions for licenses (whereby a salmon licence is deemed to allow fishing for trout etc) will be repealed and replaced with a power for the Agency to specify which kinds of fish the licence holder may target. This will give the Agency the flexibility to introduce licences that reflect the kinds of fish in which fishers are interested, and would give a clearer picture of effort in each sector. At this stage the Agency is looking to be able to issue separate licences for fishing for migratory salmonids, non-migratory salmonids, freshwater fish, other migratory fish, crayfish and marine fish, but it will be possible to offer licences that cover different combinations of kinds of fish in the future if necessary.
5. We propose that licences will only be available to certain fisheries in addition to angling. These fisheries will be specified by Ministers, who will be able to add or remove methods from the list. These methods will, in general, be less intensive methods of fishing. At this stage we intend that the following methods should be licensed;
· for salmon and trout - compass nets, haaf nets, draft hand and trammel/whammel nets, wade nets, coracle nets, T&J nets, drift nets and seine nets
· for eels – fyke nets, dip nets pots, baskets and criggs and
· fisheries currently undertaken under Certificates of Privilege or statutory entitlement.
6. Those who wish to pursue a fishery for which a licence is not available will need to apply to the Agency for an authorisation. It is important that the Agency is able to assess those fisheries which pose a higher risk to either fish stocks or the aquatic environment, or are new methods that may develop and or assess their potential to harm the aquatic environment, and to be able to refuse to grant an authorisation should the method present significant levels of exploitation, or harm. At this stage we intend that fishers will need to apply for authorisations for the following methods ;
Crayfish traps, eel racks, eel traps, coops, putcheons, putts, putchers and stake nets
Fisheries undertaken for scientific or management purposes (such as those during a close season that would otherwise be illegal)
Fishing weirs and mill dams (other than those undertaken under statutory entitlement)
7. While in general rod and line licences will remain national in scope the Agency will be able to issue licences that apply only to certain types of water (e.g. still waters or to rivers of a specified quality). This is to allow the Agency, should it be able to demonstrate a need in future, to be able to draw a distinction between, for example, the best salmon rivers and those which are less good.
Proposal 2
Effort limitation
8. The EA is able to curtail effort in fisheries (other than by rod and line) targeting salmon and trout through Net Limitation Orders (NLOs), which limit the number of licences that may be issued each year for a maximum ten year period.
9. We propose to extend this power to cover eel fisheries in order to contribute to measures being taken at a European level to address the parlous state of the European eel stock, and to other fisheries in order that the EA is properly able to control effort. We also propose extending such a power to control the numbers of rod and line fishermen who may be involved in eel fisheries. At this time we believe catch and release requirements and close seasons to be the most effective means of controlling eel mortality in angling fisheries, but recognise that we may need to introduce such restrictions as a part of a wider toolkit to ensure compliance with the Council Regulation establishing measures for the recovery of the stock of European eel.
10. A public enquiry is automatically triggered if there is a single objection from a (relevant) existing licence holder, even if the licence holder fishes only on a part time or occasional basis, adding significantly to the cost and time taken to address the need to reduce effort. In addition, NLOs may not be confirmed if any person, who had held a relevant licence during the preceding year and whose livelihood depends on fishing, will be excluded from the fishery.
11. The relative importance of commercial over recreational fisheries has declined since the introduction of NLOs, and these now accord commercial fisheries too much weight and too little weight to conservation of biodiversity; we propose to address this by allowing that Ministers determine when a public enquiry should be held, and to remove the bar on making NLOs in certain circumstances.
Proposal 3
Provisions for illegal instruments
14. We propose to make clear that a licence to fish by rod and line does not entitle an individual to use a gaff or tailer when doing so. The use gaffs or tailers has the potential to critically injure fish, and thus make it unlikely that they will survive subsequent release, thereby adding to the pressure on stocks.
15. Ministers will also have the power to add (by Order) other instruments to the list of prohibited implements specified in Section 1 of the Salmon and Freshwater Fisheries Act.
Proposal 4
Power for EA to make emergency measures
16. At present, the EA is unable to introduce measures quickly in emergency situations; byelaws typically take 1 year to be made and confirmed. We therefore propose to enable the EA to make emergency measures in response to the following sorts of situations; serious drought, collapse in numbers of returning fish, high temperatures (due to de-oxygenation of the water) or water pollution. The EA will be able to make emergency byelaws for a maximum of 12 months in the first instance, with the possibility of extending them for a further 6 months where this is necessary. We are looking to bring the process of introducing such measures in line with those proposed for Sea Fisheries Committees as far as possible.
Proposal 5
Reform of law on close time byelaws
17. In principle the EA has the power to set close seasons for salmon, trout, and freshwater fish. However, the 1975 Act contains a number of restrictions on the setting of close times, which prevent the Agency from being able to achieve its conservation and sustainable management aims.
18. Most particularly close time periods must be of a certain length. We propose to remove these minimum durations, since these are no longer relevant and impose an unnecessary restriction on the EA’s ability to determine appropriate close seasons.
19. The current right for owners of salmon and trout fisheries, and anyone with their permission, to remove freshwater fish by rod and line, during their close season will also be removed as this undermines any catch and release requirements or close seasons.
20. Whilst fishing for eels is curtailed through close times, such close times exist primarily as a further means to protect salmon and freshwater fish, and the close time restrictions on eel fishing therefore relate not to eel stocks but to stocks of those fish. We therefore propose that the EA should be able to introduce eel close times specifically for their benefit, independently of any other close times.
Proposal 6
Reform of law on introduction of live fish
21. Council regulation 708/2007 introduces a European framework to control the use of alien and locally absent species in aquaculture. Section 30 of the Salmon and Freshwater Fisheries Act 1975 therefore will now in general only be applicable to native and ornamental fish in waters that are not associated with aquaculture.
22. Although European regulations are usually directly applicable in UK law, this regulation is so loosely drafted that we shall need to introduce our own more detailed regulations to implement the requirements. We therefore intend producing a unified system that covers all movements of live fish in England and Wales, but to introduce the necessary legislation through two routes – using section 2(2) of the European Communities Act 1972 for those parts that relate to alien species or aquacultural sites, and the Marine Bill for those relating to native species and wild water.
23. At this stage, while we have not worked up the details of how the system should operate, we are seeking powers for Ministers to make regulations establishing a system for regulating the import, keeping, movement, release and removal of native species of live fish.