Select Committee on Environment, Food and Rural Affairs Minutes of Evidence


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:

    —  Bycatch; and

    —  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

    Non Auditory

    Noise generated trauma to body tissue

    Induction of a decompression-like sickness

    Auditory

    Gross damage to ears

    Permanent hearing threshold shift

    Temporary hearing threshold shift

    Perceptual

    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)

    Behavioural

    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)

    Chronic/Stress

    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

    Indirect Effects

    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

  ASCOBANS. 2000. Resolution on incidental take of cetaceans.

  Boyes, S., Warren, L. & Elliott, M. 2003. Deficiencies in the Current Legislation Relevant to Nature Conservation in the Marine Environment in the United Kingdom. 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. Report to JNCC & Wildlife and Countryside Link.

  Kuiken, T., Hofle, U., Bennett, P.M., Allchin, C.R., Kirkwook, J.R., Baker, J.R., Appleby, E.C., Lockyer, C.H., Walton, M.J. & Sheldrick, M.C. 1993. Adrenocortical Hyperplasia, Disease and Chlorinated Hydrocarbons in the Harbour porpoise (Phocoena phocoena). Marine Pollution Bulletin, 26(8): 440-446

  Morris, R.J., Law, R.J., Allchin, C.R., Kelly, C.A. & Fileman, C.F. 1989. Metals and organochlorines in dolphins and porpoises of Cardigan Bay, West Wales. Marine Pollution Bulletin, 20(10): 512-523

  Penrose, R. & Pierpoint, C. 1999. The Use of Welsh Coastal Habitats as Calving Nursery Grounds for the Harbour Porpoise. CCW Contract Report No:378, 22pp.

  Pierpoint, C., Baines, B. & Earl, S. 1998. The Harbour porpoise (Phocoena phocoena) in West Wales. Report to The Wildlife Trusts and WWF-UK.

  Simmonds, M. (Ed). 1999. Chasing Dolphins. WDCS Report.

  Simmonds, M., Dolman, S. & Weilgart, L. (eds). 2003. Oceans of Noise. WDCS Science report. 164pp.

  Tregenza, N.J.C., Berrow, S.D., Hammond, P.S. & Leaper, R. 1997. Harbour porpoise (Phocoena phocoena) by-catch in set gillnets in the Celtic Sea. ICES Journal of Marine Science. 54: 896-904




1   Mammalian order Cetacea, includes the whales, dolphins and porpoises which are know collectively as "cetaceans". Back


 
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