Memorandum submitted by the Whale and
Dolphin Conservation Society
WDCS welcomes this opportunity to submit evidence
to the Environment, Food and Rural Affairs committee inquiry into
the marine environment.
WDCS, the Whale and Dolphin Conservation Society,
is a UK based charity dedicated to the conservation and welfare
of all cetaceans. Established in 1987, it now has over 70,000
members and supporters worldwide, with offices in the UK, US,
Germany, Australia and Argentina.
The evidence we submit relates to:
— the effectiveness of current legislation
to protect the UK's cetaceans; and
— the delay in designating Special
Areas of Conservation for the Harbour porpoises.
ENVIRONMENT AND
RURAL AFFAIRS
COMMITTEE INQUIRY
INTO THE
MARINE ENVIRONMENT
1. The effectiveness of current legislation
to protect the UK's cetaceans
1.1 Over 20 species of cetacean[1]
live year round or migrate through the UK's waters. These complex,
charismatic and much loved animals inspire interest in our marine
environment, generate revenue in coastal communities through tourism
opportunities and act as indicators for the health of our marine
ecosystems. For these reasons, and more, they deserve our protection
from the human activities that threaten them.
1.2 WDCS believes that if the UK legislative
system is to provide an adequate level of protection for cetaceans,
some fundamental changes will be necessary.
1.3 The two main pieces of legislation for
the protection and conservation of species are the Wildlife and
Countryside Act 1981, and the Conservation (Natural Habitats,
&c.) Regulations 1994, which transpose the Habitats Directive
(92/43/EEC).
1.4 All cetaceans are listed on Schedule
5 of the Wildlife and Countryside Act (1981) and Annex IV(a) of
the Habitats Directive and, therefore, receive the full range
of protective measures offered. In addition, the Bottlenose dolphin
and the Harbour porpoise are listed on Annex II of the Habitats
Directive so are eligible for the designation of Special Areas
of Conservation (SAC's).
1.5 Neither instrument was drafted specifically
for marine species and their environment. What may work will in
the terrestrial environment cannot necessarily be expected to
transfer smoothly over into an environment where everything from
natural processes to human activities function differently. Our
main legal instruments for species protection are difficult to
apply in the marine environment, often use inappropriate language
and can rely on a level of knowledge for their proper implementation
that is not available.
1.6 In addition, cetaceans themselves are
harder to legislate for than many other species as they are wide
ranging, highly mobile animals with often complex interactions
with their environment that we do not always fully understand.
Our knowledge of even basic information—abundance, distribution
etc—is limited for most cetacean species which does not
aid our efforts to protect them.
1.7 To demonstrate how and why the legislative
system is failing in respect of cetaceans, we offer detail on
two issues which are currently affecting UK cetaceans:
— Disturbance and noise pollution.
1.8 Bycatch
1.8.1 The incidental capture of small cetaceans
in fishing nets has long been widely recognised as a major conservation
threat to those species most impacted. In the UK, the available
evidence indicates that common dolphins and harbour porpoises
are the main species being impacted. Year after year, large numbers
of these animals are killed and the bodies of some of our supposedly
most protected species wash up on our beaches.
1.8.2 The existing legal regime in the UK
appears to give no assistance in this matter, even though the
deaths are clearly predictable. Currently, both the Wildlife and
Countryside Act and the Conservation (Natural Habitats, &c.)
Regulations 1994 require intent to be proven for the offence of
killing a protected species.
Wildlife and Countryside Act (1981)
Section 9(1) "Subject to the provisions
of this Part, if any person intentionally kills, injures or takes
any wild animal included in Schedule 5, he shall be guilty of
an offence."
Conservation (Natural Habitats, &c.) Regulations
1994
Regulation 39(1) "It is an offence—
(a) deliberately to capture or kill a wild animal
of a European protected species;"
The Countryside and Rights of Way Act (2000)
added the term "reckless"; to those subsections of the
Wildlife and Countryside Act (1981) dealing with the intentional
disturbance of cetaceans, so whilst it is an offence to recklessly
disturb a cetacean, it is not an offence to recklessly kill one.
1.8.3 It would appear that unless it can
be shown that the offence was intended or that the result was
a virtually certain consequence of the act, then no offence has
been committed. Whilst the bycatch of a protected species may
be highly predictable, arguably it cannot be said to be a virtually
certain consequence. Addition of the term "reckless"
to those sections of the Wildlife and Countryside Act that currently
require intent to be proven should be considered so as to make
those activities an offence that although don't have the intention
of killing a protected species, because of the regularity of it
occurring and the widespread knowledge that that action could
lead to that result, an ordinary prudent person would have thought
it so.
1.8.4 Both the Wildlife and Countryside
Act and the Conservation (Natural Habitats, &c.) Regulations
currently contain the defence that:
"the act was the incidental result of a
lawful operation and could not reasonably have been avoided"
1.8.5 Any killing, injuring, taking or disturbance
of cetaceans that occurs incidentally to a lawful operation is,
therefore, not legislated against and this defence has been recognised
in many reviews of species protection legislation as severely
limiting the effectiveness of the legislation (eg King et al.,
1999; Boyes et al., 2003).
1.8.6 In the marine environment, and especially
further offshore, most activity and human presence is connected
with lawful operations—shipping, fishing, oil and gas exploration—seemingly
leaving our wildlife largely unprotected from the activities that
impact and occasionally threaten them.
1.8.7 This defence is also problematic in
a European context as there are no provisions in the Habitats
Directive which permit the killing, injuring or taking of protected
wildlife, or the destruction of their habitat as the incidental
result of a lawful operation.
1.8.8 Further, Article 12.4 states that:
"Member States shall establish a system
to monitor the incidental capture and killing of the animal species
listed in Annex IV(a). In the light of the information gathered,
Member States shall take further research or conservation measures
as required to ensure that incidental capture and killing does
not have a significant negative impact on the species concerned."
The UK has not, so far, implemented this Article.
1.8.9 A tightening up, or removal of the
defence should be considered, along with proper implementation
of the Habitats Directive.
1.9 Disturbance and Noise Pollution
1.9.1 Disturbance
Publications such as "Chasing Dolphins"
(Simmonds, 1999) helped highlight the issue of cetacean disturbance
by watercraft along with the likely scale of the problem. The
report detailed many incidents reported to the Society, ranging
from mild disturbance of dolphins through to deliberate and very
aggressive harassment.
1.9.2 In an attempt to deal with the inadequacies
of the legal regime in relation to this issue, the Wildlife and
Countryside Act (1981), was amended by the Countryside and Rights
of Way Act (2000) making it an offence to "recklessly disturb"
a cetacean. This very positive move was much welcomed, but three
years on, there have still been no prosecutions for disturbing
a cetacean, recklessly or otherwise, and this is sadly not because
the problem has gone away.
1.9.3 A lack of knowledge by the general
public and enforcers as to what constitutes disturbance combined
with a lack of adequately detailed evidence of events are the
most likely reasons we have seen no prosecutions.
1.9.4 Human interaction with marine wildlife,
particularly marine mammals, is increasing through a growing ecotourism
industry and increasing recreational boat use, including very
fast personal watercraft. Whilst being generally very supportive
of responsible ecotourism and people's increasing involvement
with the marine environment, these activities have the potential
to disturb and harm wildlife, and improved regulations to better
protect them from these threats are required.
1.9.5 It is for these reasons that we believe
a national code of conduct, with some form of legal backing is
necessary. Its purpose would be to offer guidance to those wanting
to observe cetaceans without disturbing them and to help the enforcers
by giving them a code which non-compliance with can be used as
supportive evidence for the offence of disturbance.
1.9.6 At present, there is often more than
one code operating in a specific area and on the whole, these
codes give quite different advice to people as to the correct
way to behave around marine wildlife with some being more restrictive
and cautious than others. This wide array of codes would make
it hard to prosecute someone using non-compliance of a code as
evidence because all the codes set different standards as acceptable.
For this to work there needs to be one generic code, with legal
backing. The generic code could be developed (by additional clauses)
for local situations.
1.9.7 By providing people with proper and
consistent guidance as to how to behave there will be a reduction
in disturbance to the animals and fewer prosecutions necessary.
1.9.8 Noise Pollution
There is considerable evidence that human activities
have significantly increased the overall level of sound in the
oceans during the last few decades. Accordingly, there is growing
concern that this rise is having a significant negative impact
on marine life.
1.9.9 Sound travels very efficiently in
water and can be heard at great distances from its source, especially
low frequency sound.
1.9.10 There are many sources of manmade
noise in the marine environment including: oil and gas exploration,
military activities, vessel traffic, dredging and acoustic scaring
devices. Most of these sources have increased over recent years.
For example, there has been a huge rise in the number of large,
powerful boats used for trade and transport, along with private
ownership of small boats.
1.9.11 The full effects of these various
noise sources on marine species and ecosystems are difficult to
ascertain but the issue is receiving increasing attention from
scientific bodies and international organisations. A wide variety
of marine species can be affected, including marine mammals, fish,
invertebrates and birds but due to their high dependance on sound
for communication, navigation and food location, cetaceans are
thought to be especially vulnerable to noise pollution. The table
below demonstrates the wide range of potential impacts from noise
considered to affect cetaceans and is based on numerous studies
covering a range of noise sources.
Table 1—Possible impacts of noise on cetaceans
Physical
Noise generated trauma to body tissue
Induction of a decompression-like sickness
Permanent hearing threshold shift
Temporary hearing threshold shift
Masking of communication with conspecifics
Masking of other biologically important noises
Interference with ability to acoustically interpret
environment
Adaptive shifting of vocalisations (with efficiency
and energetic consequences)
Gross interruption of normal behaviour (ie behaviour
acutely changed for a period of time)
Behaviour modified (iebehaviour continues but
is less effective/efficient)
Displacement from area (short or long term)
Decreased viability of individual
Increased vulnerability to disease
Increased potential for impacts from negative
cumulative effects (eg chemical pollution combined with noise-induced
stress)
Sensitisation to noise (or other stresses)—exacerbating
other effects
Habituation to noise—causing animals to remain
close to damaging noise sources
Reduced availability of prey
Increased vulnerability to predation or other
hazards, such as collisions with fishing gear, strandings, etc
1.9.12 One noise source individually may
not necessarily cause a problem but, combined with others, it
can become a significant issue, especially for sensitive species
who may find they have diminishing places to use for refuges.
Combine noise with other impacts such as bycatch, chemical pollution
and direct take and the effects can be expected to be highly significant
for certain species.
1.9.13 As a contracting party to UNCLOS,
the UK has duties in respect of pollution of the marine environment
"from any source", and pollution is defined as the introduction
of substances or energy into the marine environment.
1.9.14 The OSPAR Convention is one of many
regional conventions that defines "pollution" to include
"energy" and so can be seen to apply to noise pollution.
1.9.15 Consent for "seismic surveys",
one of the more powerful noise sources introduced into the marine
environment, is granted through a section of the Offshore Petroleum
Activities (Conservation of Habitats) Regulations (2001). When
an applicant is granted consent, it is a condition of that consent
that the seismic survey in question follows the JNCC Guidelines
designed to reduce the disturbance of cetaceans caused by these
surveys. However, any work licensed before this became a condition,
and any seismic work carried out by anyone other than the oil
and gas industry, does not have to follow the guidelines.
1.9.16 No other activity that introduces
noise sources into the marine environment is regulated for its
potential effects on wildlife.
1.9.17 Sections of the Wildlife and Countryside
Act (1981) that offer protection from intentional killing, injuring
and taking, and intentional or reckless disturbance may apply
at times. For the most part, however, sources of marine noise
are incidental to a lawful operation (eg shipping) so there would
seem to be few cases where the current provisions would apply
given the "incidental result of a lawful operation"
defence present in the Act.
1.9.18 Noise pollution is a complex issue
with effects that are long term and often slow to manifest themselves
or difficult to identify. For this reason, it may not be appropriate
to deal with it through the general clauses of the Wildlife and
Countryside Act which seem hard to apply to this issue.
1.9.19 Scientifically supported definitions
of levels of what constitutes unacceptable or dangerous noise
pollution is much needed and would serve to inform the development
and interpretation of existing and future law. However, such definitions
are likely to prove contentious and may take many years to achieve,
indicating the need for a strongly precautionary approach to be
taken.
1.9.20 Some level of protection can be offered
through mitigation measures which can be divided into four different
types.
1. Construction, design and equipment standards—eg
use of equipment that produces less noise, investigation into
the development of such equipment.
2. Restrictions—geographical and/or
seasonal.
3. Routing and positioning—management
of vessel movements or other activities around biologically important
areas; and
4. Operational measures—eg visual or
acoustic monitoring before initiating noise, speed restrictions,
reduction in duration and intensity of noise.
1.9.21 In a similar manner to the way some
seismic activities are being controlled, these measures could
be implemented via guidelines, but a strong statutory backing
to these is essential if compliance and enforcement are to be
achieved. The development of "acoustic guidelines" should
be considered which would cover all potentially harmful noise
sources being introduced into the marine environment, not just
seismic surveys by the oil and gas industry.
1.9.22 A requirement for independent monitoring
and collection of data also needs to be included in this legislation.
Monitoring is the only way to establish if the mitigation measures
put in place are effective. A lack of data on the primary species
affected by noise (marine mammals) and their behavioural responses
when exposed to it is hindering a proper understanding of the
problem and possible future solutions, so collection of data should
be made a priority.
1.9.23 When particularly loud, intense and
potentially damaging sources of noise are to be introduced into
the marine environment, it should be necessary to justify the
need for them. For example, if a seismic survey of an area is
needed, checks should be required to establish if such a survey
has ever been done in the past—if it has, results from this
should be used instead of repeating the survey again.
1.9.24 Acoustic Scaring Devices—These
devices deserve special mention as their specific purpose is to
scare off and harass marine mammals. Some are designed to exclude
pinnipeds and prevent predation on fish farms but will also serve
to displace cetaceans, potentially from key habitats. Others attempt
to prevent cetaceans becoming entangled in fishing nets and may
have the same effect but it is also possible that cetaceans could
just become habituated to the sound over time. Varying results
have been obtained to date from studies conducted on their effectiveness.
US experts on these devices have emphasised
that artificial sound should be introduced into the underwater
environment only when the costs and benefits of doing so are clearly
understood, and only after the potential ecological consequences
have been carefully considered. This does not seem to be the general
practice with acoustic scaring devices as they continue to proliferate,
largely as a quick-fix solution.
1.10 There are additionally some cross cutting
legal issues affecting many aspects to do with the protection
of cetaceans in UK waters:
1.11 Human activity, including industrial
development continues to increase in the UK's offshore waters
with, for example, the ongoing exploitation of fossil fuel reserves
and the development of wind farms. With this increase in human
prescence and activity, the need becomes even more urgent to consider
how we are to protect our marine wildlife beyond the 12 mile zone.
European protected species will be offered some protection out
to 200 nautical miles by the proposed Offshore Regulations (as
they currently stand) but our national wildlife protection law
currently only extends to 12 nautical miles.
1.12 Enforcement of species protection offences
in the marine environment is poor due to a lack of bodies with
appropriate powers or a reliance on those whose major concerns
relate to non-nature conservation matters or who are non-marine.
Enforcement powers under Part I of the Wildlife and Countryside
Act (1981) should be extended in respect of wildlife offences
committed at sea to bodies such as the Coastguard agency and the
Royal Navy. Appropriate training and resources would be essential
for all those given these enforcement powers.
2. Designating Special Areas of Conservation
for the Harbour porpoise
2.1 Harbour porpoise (Phocoena phocoena)
are found in both coastal and offshore habitats around the UK,
although they generally remain in shelf waters of less than 100
metres in depth. The size of the UK population remains unknown
but we do know that the population has declined in some areas,
for example, the English Channel.
2.2 The Harbour porpoise features on Annex
II of the Habitats Directive and so is one of the two cetacean
species eligible for the designation of SACs, the other being
the Bottlenose dolphin. The stated purpose of establishing these
SACs is to enable the maintenance or restoration of the species
at a favourable conservation status.
2.3 Three SACs have now been established
in the UK with the Bottlenose dolphin as either a primary or secondary
feature of the site but so far, none have been proposed for the
Harbour porpoise. This should be addressed.
2.4 Article 4 of the Habitats Directive
stipulates that:
"For aquatic species which range over wide
areas, such sites will be proposed only where there is a clearly
identifiable area representing the physical and biological factors
essential to their life and reproduction."
The reluctance to designate sites for Harbour
porpoises appears to be due to the opinion that there is insufficient
data to identify sites which meet the criteria of the Directive.
2.5 Several non-governmental organisations,
including WDCS, have expressed their strong support for the designation
of Harbour porpoise SACs and a number of reports have been produced
detailing the evidence to support the case for designation of
particular areas around the UK. The Countryside Council for Wales
are in the process of finalising a review of porpoise distribution
and SAC designations. We believe that the reports of this review
will be released in the near future.
2.6 As part of this submission we will attempt
to briefly summarise the evidence available for one such area,
which we believe should be designated a Harbour porpoise SAC without
further delay, Strumble Head and Ramsey Sound in Wales. There
are other sites where a strong case can also be made, for example
in the Shetlands Islands, and we believe that these should also
be given due consideration by government.
Strumble Head and Ramsey Sound, Wales
2.7 Several studies have been conducted
in the area which have confirmed that high numbers of porpoises
use the site year round with peaks occurring in late summer (Pierpoint
et al., 1998). Sighting rates are consistently higher or
equal to those reported for Shetland sites which is the only other
area in the UK where comparable data is available (Pierpoint et
al., 1998).
2.8 Both Strumble Head and Ramsey Sound
provide strongly tidal habitats which form the tidal races and
upwellings known to enhance the areas productivity (cited in Pierpoint
et al., 1998). Studies have shown that Harbour porpoises
utilise these highly productive zones and Pierpoint (1993) reported
that 75% of sightings during the ebb tide showed foraging behaviour.
2.9 Juvenile animals are seen in the area
year round and adults with small calves are present from late
May onwards which suggests that the area is used as a breeding
and nursery ground (Pierpoint et al., 1998). Welsh strandings
data from 1989-99 supports this suggestion as 36% of the total
stranded harbour porpoises recorded were probably first year calves,
and during June and July (peak calving month) 54.3% of fresh porpoise
strandings were neonates (Penrose & Pierpoint, 1999).
2.10 This area clearly meets the criteria
of Article 4 as an identifiable area that represents the physical
and biological factors essential to their life and reproduction.
Designation of this site would most importantly offer protection
to the calves born and nursed in the area and also to the productive
feeding grounds offered by the area.
2.11 The importance of conserving areas
such as this comes into sharp focus if you look at the threats
faced by these small cetaceans. The Harbour porpoises of southwest
Wales are thought to be part of the wider population that inhabits
the Celtic and Irish seas (Pierpoint et al., 1998). This
population is known to be threatened by high levels of mortality
due to bycatch and estimates suggest that 6% of the population
are being removed every year by bottom set gill nets (Tregenza
et al., 1997). ASCOBANS (Agreement on the Conservation
of Small Cetaceans of the Baltic and North Seas) define takes
of more than 1.7% as "unacceptable" (ASCOBANS, 2000)
and it has been agreed internationally that an annual loss of
1% of a population should be a cause of concern (IWC, 1995).
2.12 Other threats include: chemical pollution
as cetacean strandings in Wales shows relatively high levels of
contaminant burdens (Kruiken et al., 1993; Morris, et al.,
1989) and, potential disturbance, displacement and collision risks
associated with recreational boat use and high speed ferries in
the area (Pierpoint et al., 1998). Pembrokeshire Coastal
Forum estimates a large increase in marine wildlife tour operators
in the area over the next few years. Harbour porpoises will be
a specific interest of these tours raising concerns of increased
impacts to the population. With proper protective mechanisms in
place, this could serve to boost the local economy as well as
increasing people's knowledge and interest in these animals.
3. Conclusion
3.1 The UK legislative regime does not currently
provide sufficient protection for the cetaceans that inhabit our
waters. For the UK to ensure the long-term future of our cetaceans
and to properly meet national and international commitments made
in respect of cetaceans, these failings need to be identified
and remedied.
3.2 This submission should not be considered
a comprehensive analysis of the legislative provisions that affect
cetaceans, nor does it detail all the changes that we consider
necessary. It is intended to serve to highlight some of the areas
where attention is needed.
3.3 We urge in particular that action should
be taken to properly implement the Habitats Directive for harbour
porpoises and offer them the full range of protective mechanisms
available. This should be given a high priority by government
and delayed no further.
16 September 2003
REFERENCES
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of cetaceans.
Boyes, S., Warren, L. & Elliott, M. 2003.
Deficiencies in the Current Legislation Relevant to Nature
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Report to JNCC
Dotinga, H.M. and Oude Elferink, A.G. 2000.
Acoustic Pollution in the Oceans—the Search for Legal
Standards. Ocean Development and International Law. 31: 151-182.
IWC. 1995. Report of the Scientific Committee.
King, M., Hepburn, I. & Gubbay, S. 1999.
A Review of the Operation of Species Legislation in Great Britain.
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C.R., Kirkwook, J.R., Baker, J.R., Appleby, E.C., Lockyer, C.H.,
Walton, M.J. & Sheldrick, M.C. 1993. Adrenocortical Hyperplasia,
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(eds). 2003. Oceans of Noise. WDCS Science report. 164pp.
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1 Mammalian order Cetacea, includes the whales, dolphins
and porpoises which are know collectively as "cetaceans". Back
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