Consultation on modernisation of salmon and freshwater fisheries legislation; new order to address the passage of fish

Dear Consultee

I am writing to seek your views on proposals to improve the free passage of fish and to allow free access to breeding, nursery and feeding grounds for fish in England and Wales.   These proposals follow recommendations made in the Salmon and Freshwater Fisheries Review, published in 2000, and were included in the consultation which started in February 2007 on "Mechanisms to Deliver Water Framework Directive Requirements on Hydro-morphology" and in the new water strategy for England, Future Water on 7 February 2008.

Background and the proposal

The Water Framework Directive requires Member States to implement a programme of measures to prevent deterioration in the status of all bodies of surface water with the aim of reaching Good Ecological Status (GES) or Good Ecological Potential (GEP). One of the indicators used for assessing GES and GEP is fish stocks – both the range of those species present and stock presence and stock levels. Initial assessments suggest that many waters in England and Wales are at risk of failing to achieve Good Status as a result of barriers to migration. 

In addition, Council Regulation (EC) No 1100/2007 of 18 September 2007 establishing measures for the recovery of the stock of European Eel (“the Eel Regulation”) requires Member States to develop management plans for each River Basin District; with the objective of “permit[ting] with high probability the escapement to the sea of at least 40% of the silver eel biomass relative to the best estimate of escapement that would have existed if no anthropogenic influences had impacted the stock”.  This includes anthropogenic influences such as barriers to migration and therefore requires, where necessary, Member States to take structural measures to make rivers passable for eels.

Many species of fish need to move freely between different parts of the river system or between the river and the sea in order to access breeding, nursery or feeding grounds.  Obstructions, abstractions and discharges can all block or hinder the natural passage of fish, impacting on fish populations.  We must improve the natural passage of fish in order to meet the needs of the Water Framework Directive, to implement the Eel Regulation, and to protect fisheries in general.

The Environment Agency already has some powers to require the provision of fish passes and screens.  These are limited to;

  • enable the migration of salmon and sea trout only
  • new obstructions or those undergoing significant alteration.

However, other migratory and freshwater fish which need to access different parts of the aquatic environment are not covered by these provisions. We therefore intend to

  • enable the Agency to require the installation of a fish pass or the placement of screens to facilitate the passage of all migratory and freshwater species,
  • give powers to the Environment Agency to require that a fish pass is introduced in extant obstructions whether or not works are underway,
  • require screens to be introduced for all water abstractions/discharges. 

Attached are:

  • Annex A, which sets out how we intend amending the current legislation (sections 7 – 16 of the Salmon and Freshwater Fisheries Act 1975) and includes a “before and after” table;
  • Annex B (388 KB) a partial Impact Assessment setting out the costs and benefits of the proposals; and
  • Annex C (54 KB) a Statement of Intent from the Environment Agency which sets out how the Environment Agency intends using its proposed new powers.  In summary, they will target new works in the first instance, as they are now, and prioritised to those water courses where significant improvements can be made.

All of the consultation documents are available at www.defra.gov.uk/corporate/consult/fisheries-legislation/

Your views

I would welcome your views both on the proposals and on the partial Impact Assessment, the options set out and the costs and benefits contained within it.  At this stage it has not been possible to provide monetised benefits for the conservation of fish stocks, and thereby the benefits to the public and fishers.  We would therefore be interested in any relevant information you may have on this particular aspect.

Your thoughts and practical examples of the impact of this proposal on you and your business can help us get a fuller and more accurate understanding of the overall impact. 

Hard copies should be sent to;
Chetal Moghraby
Area 2D
London
SW1P 3JR

Fax 0207 238 4389

Or if you wish to send responses electronically: freshwater.fish@defra.gsi.gov.uk.

If you would like to comment, could you please reply by Friday 10 April 2009.

Consultation Criteria

This consultation is in line with the Code of practice on Consultations. This can be found at  www.berr.gov.uk/bre/. When this consultation ends, we intend to put a copy of the responses in the Defra library at Ergon House, London. This is so that the public can see them. Also, members of the public may ask for a copy of responses under freedom of information legislation.  If you do not want your response - including your name, contact details and any other personal information - to be publicly available, please say so clearly in writing when you send your response to the consultation.   Please note, if your computer automatically includes a confidentiality disclaimer, that won't count as a confidentiality request.  Please explain why you need to keep details confidential.  We will take your reasons into account if someone asks for this information under freedom of information legislation. But, because of the law, we cannot promise that we will always be able to keep those details confidential. 

We will summarise all responses and place this summary on our website at www.defra.gov.uk/corporate/consult/fisheries-legislation/.  This summary will include a list of names of organisations that responded but not people’s personal names, addresses or other contact details.

To see consultation responses and summaries, please contact the library at:

Defra
Information Resource Centre
Lower Ground Floor
Ergon House
17 Smith Square
London
SW1P 3JR
Telephone: 020 7238 6575
Email:  defra.library@defra.gsi.gov.uk

Please give the library 24 hours’ notice.  There is a charge for photocopying and postage.

If you have any comments or complaints about the consultation process, please address them to Marjorie Addo, Defra’s Consultation Co-ordinator, Area 7C Nobel House,17 Smith Square, London SW1P 3JR, or email consultation.coordinator@defra.gsi.gov.uk.

Thank you for your help in this matter. If you have any queries please contact us as above.

Yours sincerely

Ruth Thirkettle
Department for Environment, Food and Rural Affairs

Annex A

Passage of Fish proposals

  • This paper sets out Defra’s proposals to ensure fish have free access to feeding, breeding and nursery sites; that is requirements for the provision of fish passes to enable movement, and screens with which to protect fish from access to deleterious water channels.
  • Our proposals cover all inland waters within England and Wales, but excluding the English Rivers Tweed and Esk,  and their English tributaries) and out to 1 nautical mile (nm) from relevant baselines so far as diadromous fish (e.g. salmon, sea trout, eels etc) need to be protected.
  • Fixed engines, fishing weirs and fishing mill dams are included in this paper only as regards their constituting obstructions to the passage of fish.  Their use a fishing constructions will be addressed through the Marine Bill.
  • The current provisions referred to in this paper are set out in sections 9 – 15 of the Salmon and Freshwater Fisheries Act 1975.
  • In this paper the following definitions are used;

Drivers for change

  • The Water Framework Directive 2000/60/EC requires Member States to implement a programme of measures to prevent deterioration in the status of all bodies of surface water and aim to achieve Good Ecological Status or Good Ecological Potential by 2015. The deadline can be extended to 2021 or 2027 if it is disproportionately expensive or technically unfeasible to achieve Good Status by 2015. Initial assessments suggest that many water bodies are at risk of failing to achieve Good Status as a result of barriers to migration. 
  • The Eel Regulation (Council Regulation No 1100/2007 establishing measures for the recovery of European Eel Stock) aims to return the European eel stock to sustainable levels of adult abundance and glass eel recruitment. Each Member State is required to aim for an escapement of silver eel to the spawning population that equals or exceeds a target set at 40% of the potential biomass that would be produced under conditions with no anthropogenic disturbance due to fishing, water quality or barriers to migration.
  • The aim of our proposals is to sustain, protect and improve the natural production of fish stocks (including eels) by facilitating the free passage of fish to enable them to have access to feeding, breeding and nursery sites; to prevent the ingress of fish into those water channels which would have a deleterious effect; and to prevent the egress from fish farms of fish or fry which could be detrimental to wild stocks.  This involves the provision of fish passes (in the broad sense of “means for the passage of fish”) in obstructions, and the screening of water abstractions and discharges throughout the Environment Agency’s jurisdiction.
  • There are many rivers, particularly in the North East and North West, where other constraints on fish populations e.g. water quality have been removed, but obstructions remain. Where fish cannot easily move about, particularly upstream to colonise, populations are often maintained only by stocking. Without the introduction of fish passes to provide connectivity, fish stocks could fall unless stocking is maintained. Stocking is unsustainable in the long-term. Many migratory and coarse fish stocks will make slower recoveries, or may not recover at all, if passes are not provided.  
  • There are approximately 2,500 major extant obstructions that prevent or reduce migration.  Whilst many fish passes are currently constructed in extant obstructions through voluntary agreements with the Environment Agency, many owner/ occupiers decline to give permission to, or refuse to work with, the Environment Agency to ensure the effective passage of fish. 
  • The Environment Agency must be able to demonstrate that the benefits to the particular fish stocks justify requiring the construction of such fish passes, and it will publish guidance on the criteria it will use to determine whether a fish pass is required.

Summary of proposed amendments

The following table summarises the proposed amendments to the current legislation:

Current provisions

Amendments proposed

Duty to make and maintain fish passes

When any new dam or similar is built, or any works take place that increase the obstruction in existing  dams or similar, that prevent the migration of salmon or sea trout the owner/ occupier must build and maintain fish passes

Extend to all fish.  This will include eels, shad, smelt and lamprey, together with those fish species that need to access other parts of the water course to complete their lifecycle.
Extend to widen circumstances in which a pass can be required.
Extend to  place duty on current owners/occupiers to maintain fish passes.

Agency power to construct and alter fish passes

The Environment Agency has the power to construct and maintain, and abolish, alter or replace  a fish pass.

Extend to include all species above.
Extend to include power for Agency to require fish pass in extant obstructions.
Extend to take ownership of structures where this is not known
Remove curtailment on the Agency to act if this affects milling power .

Consents and approvals for fish passes

The Environment Agency may issue provisional or final approval for each fish pass, and the applicant will be liable for any associated costs.

Extend so that  an approval can have conditions attached, including one requiring application for Final Approval
Extend so that a structure not originally built as a pass can be approved as one

Sluices

Sluices for drawing off water which would otherwise flow over any dam in waters frequented by salmon or sea trout must be closed on Sundays and whenever the water is not needed for milling.

Repeal – to be dealt with via the provisions for fish passes and screens.

Screens

Screens must be provided to prevent salmon or migratory trout accessing water channels which prevents their migration, or to prevent the egress of fish from a fish farm.

To be extended to all migratory species.  Agency to be able to specify form and dimensions of screens.
Clarify that responsibility to maintain screens lies with the owner of the conduit even if the Environment Agency placed it.
Remove pre 1923 exemption

Agency power to use screens etc to limit movements of salmon and trout

The Environment Agency has the power to insert screens, and to widen any watercourse where a screen is placed in order to ensure that the flow of water is not prejudicially diminished.

Extend to include all species above. 
Extend to take ownership of structures where this is not known

 

Types of fish

Current provisions

  • The Environment Agency can currently only demand the provision of a fish pass in waters frequented by salmon or migratory trout and to enable the free passage of salmon and migratory trout.  A major concern is that there are many obstructions that prevent or reduce the upstream migration of elvers, constraining the colonisation of suitable habitat.  Barriers may also prevent downstream migration of adult eels, with resultant impact on subsequent spawning success of the stock.  There is a well documented decline in eel stocks, and it is therefore important that eels are not prevented from completing their life cycle.  Other migratory species such as lamprey, smelt and shad are in similar need of access to feeding and breeding grounds but, again, are not provided for in the current legislation.
  • Brown trout, grayling and many coarse fish species undergo temporal, including seasonal, migrations within rivers in order to spawn, colonise, shelter, recover position after displacement, or to feed. In particular, many coarse fish migrate upstream to find suitable spawning sites and downstream to re-colonise.  Again, weirs and other barriers impede these migrations. A number of weirs that are passable by salmon or trout are impassable to coarse fish species because of their lower swimming speeds.
  • Conversely some barriers (i.e. screens) are necessary to protect fish from ingress into waters where they are liable to be destroyed.  Power stations can trap large numbers of coarse and estuarine fish in their intakes, and the development of small-scale hydropower facilities has introduced the risk of fish being damaged in turbines or entrained in draw-off and discharge channels.  Migratory fish are particularly at risk due to their migratory nature.  While many of those businesses that abstract water have screens for the purpose of protecting the gear within, these are not necessarily of a form that allows fish to escape back to the watercourse unharmed.

Proposals

  • We propose to extent the current measures on obstructions and screens from salmon and migratory trout to all fish that need to access different parts of the water course to complete their life cycle.  The measures will also be extended to apply to all those waters which these fish frequent, or may be reasonably expected to frequent.  
  • In addition estuaries provide some of the most important strategic nursery grounds for marine fish species such as bass. The young of many species of marine and estuarine fish make extensive migrations through estuaries to reach nursery grounds. Recent work has shown that the intertidal mudflats and saltmarshes are the optimum nurseries for these species. Fish passes can ease migration at estuarine and tidal obstructions and help secure Good Ecological Status for all species which migrate through these waters.

Obstructions

Requirement  to provide fish passes

Current provisions

  • The Environment Agency is able to require owners or occupiers to provide a fish pass whenever a new dam (or other obstruction) is constructed or an existing dam is altered so as to present an increased obstruction to the passage of salmon or migratory trout.   If the owner / occupier fails adequately or at all to provide a fish pass the Environment Agency may take such steps itself, and may recover the expenses of doing this work from the owner or occupier in a summary manner.  However, the Environment Agency cannot take action that adversely affects the milling power of a structure.

 Proposals

  • We will clarify that the current requirements include obstructions created unintentionally or due to natural  causes. This will include temporary or semi-permanent obstructions such as landslides or fallen trees, but not  permanent barriers such as waterfalls. Unintentional obstructions could include for example excessive lighting at night, sound sources of certain frequencies, other man-made activities that disrupt migration.
  • We will also clarify that any existing structure not built for that purpose, but which nevertheless facilitates the passage of fish may be approved by the Environment Agency as such.  This recognises that some structures, such as navigation locks or canoe slaloms, can be used by fish as a fish pass although they were not originally designed or constructed as such. 
  • Any owner/occupier who wishes to construct or alter a fish pass or other aid to the migration of fish will be obliged to notify, and obtain, the Environment Agency’s prior approval of the fact of its construction or alteration, and of its form and dimensions.  Owner/occupiers are already required in some instances to notify the Environment Agency of intent to construct or alter an obstruction such as through impoundment licence applications, land drainage consent applications, etc.   In these cases, a notification to the Environment Agency for licences or consents (etc) will be deemed a notification for these purposes.
  • The Environment Agency will be able to require the construction of fish passes in extant obstructions whether or not re-construction, modification or major repair is taking place.  Whilst it is better, financially, to combine works on obstructions with the construction of fish passes there may be a need to provide for the effective passage of migratory fish at times when such works are not being carried out. 
  • The Environment Agency will be able to take steps to provide a fish pass even if this adversely affects milling power.  On occasions the provision of a fish pass will necessarily divert water from a mill, and the current provisions mean that the Environment Agency is unable to take action even where the passage of fish is seriously compromised.
  • Given the large numbers of obstructions to the passage of migratory species, sites will be prioritised.  The Environment Agency will develop guidance explaining the criteria for requiring the construction of, or modification to, fish passes.
  • Where no owner / occupier of an obstruction can be ascertained, the Environment Agency should be able to take ownership and remove the structure or construct a fish facility in respect of it.
  • The Environment Agency will be able to raise funds from fishery, riparian owners and owners of the obstruction where there is general agreement (though not necessarily absolute agreement) amongst owners in a particular catchment that measures to improve passage of fish are necessary and desirable. 
  • Fish passes can, undoubtedly be expensive to construct.  Given that fishery owner/occupiers are those who will ultimately benefit from the increase in fish stocks and increased value to the fisheries it is right that they should contribute to their construction.  This will not preclude the use of grants by either the Environment Agency or the owner/occupiers, where these are available.

Power to refuse construction of fish pass

Current provisions

  • None.

Proposals

  • The Environment Agency will have the power to require that a fish facility is not constructed in natural falls (in order to protect the genetic integrity of important isolated fish populations for example), or for situations in which a barrier to fish passage in any direction serves to prevent colonisation by undesirable or alien species, or where the construction might compromise an existing fish passage.
  • Obstructions can play a vital role in preventing the spread of some populations such as land locked salmon, for which there is a desire to ensure the integrity of the subgroup are not diluted, or lost. The requirement to insert a fish pass, in those obstructions identified as being both a barrier to fish for accessing feeding or breeding grounds and also key to disease containment, will be modified to ensure that such a pass can be closed in order to address these concerns.

Approval process for  fish passes

Current provisions

  • The Environment Agency may issue provisional or final approval for each fish pass, and the applicant will be liable for any associated costs.

Proposals

  • The provisions for the granting of approvals for fish passes will be clarified to allow for the inclusion of conditions such as the requirement to apply for Final Approval, or to the operation of the structure in which the fish pass is placed, with a view to ensuring that the fish pass does indeed facilitate the effective and efficient up-or downstream passage of fish. 
  • It will also be clarified that the Environment Agency’s approval of a construction or alteration of a fish facility must be obtained prior to undertaking the construction or alteration. In addition to being able to stipulate such form and dimensions of the fish pass as it thinks appropriate, it will also be able set the objectives to be achieved in order to allow for innovation and for the most cost effective solution to be identified by the developers.
  • Any conditions which the Environment Agency attaches to the form and dimensions or operation of the fish facility will be applicable for such period of time as the Environment Agency may direct, or ad infinitum.  Final approval will only be granted if the Environment Agency is satisfied that the fish facility is functioning effectively to facilitate the passage of the type of fish concerned. The Environment Agency will have the power to revoke provisional approval if the pass is not performing satisfactorily or if evidence of such is not provided in a timely manner, and also revoke Final Approval where the pass has been rendered ineffective and inefficient by environmental or physical factors or changes in the conditions attached to approval, structure or hydraulic operating regime at the site. 

Duty of Maintenance

Current provisions

  • Owners and occupiers have a duty to maintain fish passes on their property, or the property which they occupy. The current obligation does not extend to those fish passes on which no work has taken place, fish passes which were constructed voluntarily or fish passes constructed by the Environment Agency but for which possession is retained by the original owner/occupier. 

Proposals

  • The current provisions will be extended to a duty to maintain fish passes in an efficient state (i.e. to allow effective passage for those species for which it was provided) all approved fish passes unless the Environment Agency has agreed to accept maintenance liability.  We will also clarify that this duty applies to whoever currently owns or occupies or has responsibility for the obstruction.   All fish passes need to be maintained if their efficiency is not to be undermined.

Screens

Requirement to provide screens
Current provisions

  • Screens and/or a by-wash are required, unless exempted by the Environment Agency) to protect salmon and migratory trout from ingress into waters where they are liable to be destroyed or to prevent the egress of farmed fish in to the wild.  Those abstractions that are carried out as of right before 18 July 1923 and abstractions of less than 20m3 per day are exempted from these provisions.

Proposals

  • The obligation to provide a screen will cover all abstractions or discharges of water and other such activities which might draw in numbers of fish.   During the first five years after implementation of these proposals screens will only be required in those inlets and discharges not currently covered by the Salmon and Freshwater Fisheries Act 1975 if the Environment Agency specifically so requires.  After that period all points must be screened unless informed otherwise.  It is recognised that many inlets or discharges do not present a threat to stock levels and for which a screen should not be required.  However, it will take the Environment Agency some time to assess all abstractions or discharges that are not covered by the current provisions, and this five year period gives them the opportunity to identify and exempt the correct water channels.
  • The current exemption for abstractions that are carried out as of right before 18 July 1923 will be removed; these abstractions are capable of taking significant levels of fish and to allow them to continue would pose a reduction in the effectiveness of the general requirements.  The exemption for abstractions of less than 20m3 per day will continue; these are currently absolved from the abstraction licensing system, and such levels are so low as to provide little threat to stock levels.
  • Where the owner/occupier of the inlet/discharge has not provided a screen, or an effective screen, without an excusal, the Environment Agency will be able to undertake this work and may seek to recover the expenses of doing this work in a summary manner.  
  • Where no owner or occupier of an inlet or discharge can be identified, the Environment Agency will be able to take ownership and modify the channel, or insert a screen.

Duty of Maintenance

Current provisions

  • Owners and occupiers have a duty to maintain screens on their property, or the property which they occupy.  The current obligation does not extend to those screens which were constructed voluntarily, or screens constructed by the Environment Agency but for which possession is retained by the original owner/occupier. 
  • The duty will be extended to a include the maintenance of the screen in an efficient state (i.e. to ensure those species for which the screen was required are unable to pass into such waters that would present a hazard)) and this will apply to all screens on their property, or the property which they occupy, unless the Environment Agency has agreed to accept maintenance liability.  It will also be made clear that this duty applies to whoever currently owns or occupies or has responsibility for the conduit or artificial channel.    All screens need to be maintained if their efficiency is not to be undermined. 

Sluices

Current provisions

  • Sluices for drawing off water which would otherwise flow over any dam in waters frequented by salmon or sea trout must be closed on Sundays and whenever the water is not needed for milling.  When closed the water should flow through any associated fish pass or, if no fish pass, then over the dam.

Proposals

  • The current provisions will be repealed and in future sluices will be dealt with as obstructions to the passage of fish.  In essence when sluices act as an obstruction to the passage of fish then the Environment Agency will be able to specify mitigation measures, be those the covering the management of the sluice, or the provision of a fish pass (which could amount to no more than an orifice in the sluice).  Where the sluice operates in conjunction with a fish pass the Environment Agency will be able to ensure its operation is not compromised.  Where the sluice presents a water channel to which ingress of fish should be protected the provisions on screens will operate.
  • The Environment Agency will have a power to install or maintain sluices as sluices operated with a large enough opening can be used very effectively for fish passage, and sluices may even offer a route where there is an associated over-fall depending on configuration of the site.
  • The current requirement for the closure of sluices on Sundays will be replaced with a power for the Environment Agency  to inspect the operation of sluices and to enforce their directions  (e.g. minimum openings at all times, or periods of opening, appropriate operating protocols including sequence of opening etc.).

Enforcement

Current provisions

  • Enforcement powers are contained in sections 31 to 33.  Water bailiffs (enforcement officers of the Environment Agency) have the power to examine any dam or obstruction and to enter on any land for that purpose. 
  • In addition to access to examine the obstruction the Environment Agency (and such machinery as might be necessary) will also be allowed to gain access across adjacent land or water in order to assess, construct, maintain or remove an obstruction, fish pass or screen.

Marine And Freshwater Biodiversity Division
January 2009

Page published: 16 January 2009