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Up Frenchman's creek: A case study on managing commercial fishing in an English Special Area of Conservation and its implications

Authors:
  • Marine Conservation Society

Abstract

The article outlines one of the earliest applications of the directive to commercial fishing in the UK'S Fal and Helford Special Area of Conservation (SAC), where a national NGO brought pressure to bear on local and national administrators over failure to implement the directive in a European marine site. The UK Habitats Regulations work relatively well on land where the likely impact of development is fairly transparent to regulators, developers and wider society. Implementation of the directive in the marine environment is still a relative novelty. Activities which are likely to have an impact on the favorable status of both the wider site, and the individual conservation features within sites, pose significant problems. Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives.
Up Frenchman's creek: A case study on managing
commercial fishing in an English Special Area of
Conservation and its implications
Jean-Luc Solandt Senior Biodiversity Officer, Marine Conservation Society
Thomas Appleby Senior Lecturer in Law, University of the West of England
Miles Hoskin Director, Coastal and Marine Environment Research
The Habitats Directive has matured over the years since it
has been implemented. One of the last industries to feel its
application is the commercial sea fishing industry: the
industry which according to the R oyal Commission on
Environmental Pollution has the most direct effect on the
marine ecosystem.
1
This article outlines one of the earliest
applications of the directive to commercial fishing in the
UK's Fal and Helford Special Area of Conservation (SAC),
where a national NGO brought pressure to bear on local and
national administrators over failure to implement the
directive in a European marine site. It goes on to describe
how different regulators took differing approaches to their
roles and how the lack of enforcement capacity of one
statutory nature conservation agency meant that the NGO
had to threaten a complaint to the European Commission
and potential infraction proceedings against the UK before
the European marine site was closed to damaging fishing
operations. It then explains how this test case has percolated
into UK fisheries management around the UK, leading to the
closure of damaging fisheries in Welsh marine sites, policy
changes over the management of English sites and a
growing debate over whether the proper application of the
directive and other European environmental legislation to
marine fisheries is inevitable in the rest of the UK and the
Europe an Union. Commercial f ishing will undoubte dly
continue in UK waters but it is likely that those f ishing
methods which have a significant impact on the marine
environment will face an increasing burden of regulation
where they wish to continue to operate in marine protected
areas.
Introduction*
It is over 2 0 years since the introduction of the European
Habitats Directive.
2
The UK Habitats Regulations
3
were
introduced shortly afterwards to protect the most
outstanding examples of UK habitats and species and
contribute to European biodiversity conservation targets
set under the Convention on Biological Diversity.
4
The
directive covers land, freshwater and marine habitats
and species and thus affects different levels of data,
governance and management structures in different en-
vironments.
5
The UK Habitats Regulations work rela-
tively well on land where the likely impact of development
is fairly transparent to regulators, developers and wider
society. Implementation of the directive in the marine
environment is still a relative novelty. This is a shame as
many of the UK European marine sites are huge,
6
and
provide considerable potential for ecosystem recovery.
There is often a coarser information base on the dis-
tributionofconservationfeatureswithinmarinesitesthan
for terrestrial sites, which can result in precautionary
management advice from statutory nature conservation
agencies (SNCAs) whose role it is to guide admini-
strators on correct practice.
Activities which are likely to have an impact on the
favourable status of both the wider site, and the in-
dividual conservation features within sites, pose significant
problems.
7
There have been signal marine cases on the
directive (the Greenpeace
8
case and the Waddenzee
9
ruling), but the application of the directive has not been
consistent across different marine industries. Ports and
harbours have generally (if grudgingly) accepted that
they have to comply with the directive,
10
but fisheries
management traditionally remained obstinately outside
4 J H Jans `Case analysis: the Habitats Directive' (2000) 12 (3) Journal of
Environmental Law 385^90.
5 P J Jones,W Qui and E M de Santo `Governing marine protected areas
^ getting the balance right' (2 011) UNEP Technical Repo rt; B J McCay,
P J Jone s `Marine protected areas and the governance of marine
ecosystems and fisheries' (2011) 25 (6) Conservation Biology 113 0 ^ 33
http://onlinelibrary.wiley.com/journal/10.1111/%28ISSN% 291523 -
1739/issues.
6 Joint Nature Conservation Committee ( JNCC) `Marine Protected
Areas in the UK' http://jncc.defra.gov.uk/default.aspx? page=5201
&L AYERS= TwelveTS,UKCS,BFL,InSAC,OFFcSAC.
7 D Kriebel et al `The precautionary principle in environmental science'
(2001) 109 (9) Environ Health Persp 871^76; C R Sunstein (ed) Laws of
fear: beyond the precautionary principle (Cambridge University Press
Cambridge 20 05); J Verschuuren `Shellfish for fishermen or birds?'
(2005)17(2)J Environ Law 265^83.
8R v Secretary of State forTrade and Industry ex parte Green peace [2000]
2CMLR94.
9 CaseC^127/02OJC262/2(judgment22September2004).
10 A Cliquet `International legal po ssibilities and obligations for nature
conservation in p orts' in J-L Herrier et al (eds) Proceedings, Dunes and
Estuaries ^ International Conference on Nature Restoration Practices in
European Coastal Habitats KokosijdeBelgium19^23September2005
VLIZ Special Publication 19 393^4 04.
1 RCEP `Turning theTide' (2004) 2.
* This paper was par t funded by the L loyd's Register Foundation ( LRF).
LRF, a UK registered charity and sole shareholder of Lloyd's Register
Group Ltd, invests in science, engineering and technology for public
benef it, worldwide.
2 Council Directive 92/43/EEC on the conservation of natural habitats
and of wild fauna and flora OJL 206, 22.7.1992.
3 The Conservation (Natural Habitats etc) Regulations1994.
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its ambit. This is difficult to justify given that the com-
mercial f ishing industry is the most obvious human
activity which directly affects the oceans.
11
Even when
the directive began to be applied, the industry lobbied
consistently to water it down.
12
Most recently this has led
to a challenge to the UKGovernment by members of the
south west of England fishing industry a s to the veracity of
the science that informs the designation of SACs in reef
habitat in the southwest.
13
A review by the UK's Depart-
ment for the Environment Food and Rural Affairs
14
found
that broadly speaking, there was an adequate evidence
base for the designation of sites, but was critical of the
transparency of the process that leads to the designation
of sites; in short the directive applies to commercial
fishing and it is here to stay. This article will look at an
important stage in the development of the UK's practice,
the application of the directive to scallop dredging in the
Fal and Helford Special Area of Conservation, thelessons
which UK administrators have learnt as a result, and
where this may ultimately lead.
Legal background
Article 6(3) of the Habitats Directive applies the pre-
cautionary principle to activities within European marine
sites. The wording of the directive is so clear it bears
repetition:
Any plan or projec t not directly connec ted with or
necessary to the management of the site but likely to
have a significant effect thereon, either individually or in
combination with other plans or projects, shall be sub-
ject to appropriate assessment of its implications for the
site in view of the site's conservation objectives. In the light
of the conclusions of the assessment of the implications for
the site and subject to the provisions of [Article 6(4)], the
competent national authorities shall agree to the plan or
project only after having ascertained that it will not
adversely affect the integrity of the site concerned and, if
appropriate, after having obtained the opinion of the
general public.
Before permitting a`plan or project'an administrative public
body must conduct a form of environmental impact
assessment known as an `appropriate assessment' if there
is likely to be a `significant effect'.The administrative body
can only agree to the plan or project if the appropriate
assessment is shown to have no adverse impact on the
integrity ofthe site or, under terms set out in Article 6(4):
*agreement can be given for imperative reasons of
overriding public interest, including those of a social
or economic nature;
and
*the Member State shall takes all compensatory meas-
ures necessary to ensure that the overall coherence of
Natura 2000 is protected;
*with priority habitats there is an even higher hurdle,
as the only issues which can be contemplated as
overriding are human health or public safety.
The Article 6(4) issues have yetto be testedin fisheries in
the UK as the administrative bodies have shown little
appetite to apply Article 6(3).
Article 6(2) of the directive states simply:
Member States shall take appropriate steps to avoid, in
the special areas of conservation, the deterioration of
natural habitats and the habitats of species as well as
disturbance of the species for which the areas have been
designated, in so far a s such disturbance could be
significant in relation to the objectives of this Directive.
The obligations in Article 6(3) and 6(2) need some
thought. It is easy enough to pinpoint where an applica-
tion for some sort of activity (a `plan or project' in the
language of the directive) triggers an appropriate assess-
ment under Article 6(3) for new activities, but there is a
more subtle obligation on EU Member States under
Article 6(2) to manage sites to avoid deterioration from
ongoing or previously consented activities. In reality
these amount to similar obligations on administrative
bodies to avoid activities which potentially harm the site.
Governance structures at `national' and
`site' levels
Once a site is designated for the presence of one or more
conservation features, the SNCAs provide advice on the
likely significant effect of licensed ac tivities on con-
servation features.This advice is given under Regulation
35 of the UK Habitats Regulations.
15
This assessment of
risk of likely significant effect is ba sed on practical
experience, case studies, peer reviewed literature and
expert judgment.
16
Statutory nature conservation advice
on inshore waters (0 ^ 12 nm) comes from Natural
England, an executive, non-departmental public body,
which reviews the evidence necessary to designate
marine protected areas in inshore waters, and provides
competent authorities with the advice necessary to
prevent damage to sites. The management of some
European marine sites is supported by management com-
mittees comprising appropriate public authorities (likely
to be competent national authorities for the purposes of
the directive) and SNCAs. These committees regularly
meet to discuss pending developments that may require
appropriate assessments to ensure licences are only
15 The Conservation of Habitats and Species Regulations 2010.
16 Defra (n 13); T G Mar tin et al `Eliciting expert knowledge in con-
servation science' (2012) 26 (1) Conservation Biology 29^38; A Wolman
`Measurement and meaningfulness in conservation science' (20 06)
20 (6) Conservation Biology 1626^34 http://onlinelibrary.wiley.com/
journal/10.1111/ %2 8ISSN% 291523 -173 9/issues ; P F Op dam, M E
Broekmeyer and F H Kistenkas`Identifying uncertainties in judging the
significance of human impacts on Natura 20 00 sites' (20 09) 12 (7)
Environmental Science & Policy Journal 912^21.
11 RCEP (n 1).
12 National Federation of Fishermen's Organisations (NFFO) `MPA
Fishing Coalition Takes Stock' (2012) http://w ww.nffo.org.uk/news/
mpa___takes___stock2012.html.
13 Defra `Independent review of the evidence process for selecting
marine special areas of conservation' (2011) PB13598 78.
14 ibid.
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granted when the development will categorically not
damage site conservation features.
17
In the case of the Fal
and Helford SAC, the management committee is also
advised by a non-statutory advisory committee which
offers observations and opinion on the management of
the site.
Managing fishing in European marine sites
The case of determining if fisheries are a `plan or project'
and are thus subject to Article 6(3) of the Habitats
Directive was made clear by the Waddenzee ruling. The
European Court of Justice ruled that an annually licensed
mechanical cockle f ishery must have an appropriate
assessment prior to being permitted within a European
Marine Site. The implications of this ruling have however
been variously interpreted by local and national man-
agement bodies of different EU Member States and by
those agencies responsible for licensing fishing in the UK.
For nearshore waters in England, the Sea Fisheries
Committees (SFCs) managed fisheries within 6 nm while
up until 2009 the vessel licensing body was the Marine
Fisherie s Agency (MFA). Following the Marine and
Coastal Access Act 20 09, inshore f isheries are now
managed locally by the Inshore Fisheries and Conser-
vation Authorities (IFCAs) and vessel licences are issued
by the Marine Management Organisation (MMO). The
importance of vessel licences will be seen later.
Management of scallop dredging in the Fal
and Helford Special Area of Conservation
In 20 06, after repeated, unsuccessful efforts by one of the
authors (Hoskin) to instigate appropriate management of
scallop dredging within the Fal and Helford SAC via the
local management structure,
18
the Marine Conservation
Society (MCS), a UK-based NGO, was made aware of
the situation. It was also provided with photographic
evidence of recent dredging activity in the outer SAC
which showed the vessels working inshore of a line
between Rosemullion Head and Pendennis Point.
In December 200 6 the MCS wrote to the Cornwall
SFC (the inshore fisheries regulator) to outline the im-
plications of scallop dredging affecting the conservation
features of the site, detailing both the conservation
advice ( Table 1) on scallop dredging, and the likely
significant effect to maerl, a subfeature of the sandbank
habitat for which the site was protected.
19
Fisheries management
In the Fal and Helford estuaries
When the SAC was first designated in 2004 the Environ-
ment Agency ( EA) immediately passed a bylaw
21
to
prevent scallop dredging occurring within the estuarine
waters of the site. The EA determined that the activity
would cause a likely significant effect to the conservation
features of the site (sandbanks).
In Falmouth Bay
Cornwall SFC was the regulator responsible for fishing
activities outside the estuary. Rather than pursuing an
19 D A Birkett, C A Maggs and M J Dring `Maerl: an overview of the
dynamic and sensitivity characteristics for conservation management
of marine SACs' Scottish Association for Marine Science (UK marine
SACs project) (1998) V116.
20 English Nature`Fal and Helford European Marine Site'English Nature's
advice given under Regulation 33(2) of the Conservation (Natural
Habitats etc) Regulations1994 (2000) 77.
21 The Fal and Helford (prohibition of scallop dredging) Order 200 4.
17 P J Jones, J Burgess `Building partnership capacity for the collaborative
management of marine protected are as in the UK: a preliminary
analysis' (2005) Journal of Environmental Management 77 (3) 227^43.
18 Activities included:
*gathering photographic and other evidence of where and when
scallop dredging was occurring in the SAC, how many vessels, etc.
*corresponding with NE, Defra and CSFC, highlighting among other
things that the SAC Management S cheme recognised scallop
dredging as a problem and required proactive management to
protect the SAC;
*giving a presentation on the issue at a meeting of the SAC Advisory
Group on 6 Dec 2006;
*securing unanimous support from the SAC AG for the recommen-
dation that the management forum should look into impact of
scallop dredging in the SAC and if necessary take appropriate
action; and
*organising a 30 0+ name petition to Defra against scallop dredging
in the SAC from local divers, anglers and conservationists.
The Fal and Helford SAC.
Table 1. Excerpts from Natural England advice on scallop dredging
and sandbanks/maerl.
20
Activity Feature Conservation Advice
Mobile
fishing
gear
Maerl An operation which may
causedisturbance to theFal &
Helford Marine Site features
atcurrentlevels of use
Avoiddamage, abrasion
Sandbanks slightly covered
by seawater at alltimes
Highly ormoderately
vulnerable
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evidence-based approach to managing the scallop fishing
in Falmouth Bay and its damage to the conservation
feature s of the site, Cornwall SFC and local f ishers
argued that the activity was rare, only undertaken
during westerly storms (when other offshore areas are
inaccessible) and was being carried out on predominantly
dead maerl gravel. There was an assumption amongst
Cornish f ishers that there was little problem with
dredging as maerl was often observed washed up around
the Pendennis headland, and that it must be abundant
and naturally loose to do so in the area that was being
dredged. Furthermore, f isheries representatives ex-
pressed the opinion that because the French still allow
access to extracting dead maerl for the beauty industry
in northern Brittany, it was reasonable to allow periodic
scalloping in Falmouth Bay in an area of maerl and maerl
gravel.
22
This opinion was supported by the UK fishing
industry quango, Seafish.
23
In March 2007, a meeting was held between Defra,
Cornwall SFC and the MCS in order to discuss the man-
agement of the site. Cornwall SFC reported that the
fishers had agreed to undertake a voluntary agreement
that would restrict the scallop dredging fishing activity to
November and December, and only 15 days in each
month within approximately 30 per cent of the seaward
part of Fal Bay area. This agreement was for the waters
entirely under the jurisdiction of Cornwall SFC.
Seabed surveys
Cornwall SFC commissioned the University of Bangor to
evaluate the current status of the features over which the
winter 2006^2007 dredging had taken place. It also used
its own vessel to undertake towed video and grab surveys
of the seabed, the better to understand the habitat over
which the scallop dredging was occurring.
24
Grab surveys
showed a percentage of live maerl from between 0.35 to
4.43 per cent by weight that was restricted to the top
1cm of the seabed. Still images taken every 42 seconds
of the video surveys showed a cover of living maerl in the
areas that the scallop dredgers were working of between
20 and 30 per cent.The report states that the greatest
concentration of live maerl in the outer bay is in the area
that the fishers wanted to continue to operate as written
in the voluntary scallop fishing agreement.
The management resolution
Given the clear evidence of the primary conservation
feature occurring in outer Fal Bay, the MCS wrote a
letter to Defra in October 2007 suggesting that only a
complete removal of all bottom towed fishing gears in
the Falmouth Bay area would adequately protect SAC
features from damaging activities. The MCS considered
that allowing scallop dredging to continue under the
terms of the voluntary agreement would constitute a
breach of the directive, and result in a complaint by the
MCS to the European Commission's Directorate General
for the Environment.This letter followed a meeting held in
September in Cornwall where local fishers, the SNCA,
Defra and the MCS were present to discuss the Bangor
University survey report. As a response to this letter, the
UK fisheries minister convened a meeting in December
2007 in Londonwith the major parties to resolve theissue.
Natural England, the SNCA, offered statutory advice
to regulators in late 2007 to show that it could not state
that scallop dredging in the area of Fal would not lead to a
significant effect on the favourable conservation status of
the maerl (sandbank) feature of the site; in essence,
dredging was potentially harmful to the site. However
Natural England did not have the same regulatory powers
over the fisheries sector which the EA did over estuarine
waters. It could only provide conservation advice to local
competent authorities in European marine sites and it was
the role of other public authorities to give that advice
(either the SFC or Defra).
With both the SNCA and a national NGO essentially
concurring on the likelihood of damage to the maerl,
there was a real likelihood of a complaint being made
to the European Commission and potential for infrac-
tion proceedings against the UK Government by the
Commission. In such a case the UK could face sub-
stantial financial damages in the European Courts. A
similar case in Strangford Lough in Northern Ireland
resulted in heavy fines being imposed by the European
Commission. As a result of this very real threat the
fisheries minister issued a ministerial Order to ban all
mobile f ishing gears in the entirety of the Fal and Helford
SAC in March 20 08.
25
Lessons learned ^ who was in control?
It is interesting that the potential destruction of a maerl
bed led to very different reactions inside and outside of
estuarine waters. For the estuarine waters within the
direct control of the regulator, the EA had appropriate
powers to safeguard the site, while Natural England did
not.We believe that the local SFC should have made a
decisive move to close the fishery, rather than poten-
tiallyinvolve the EU's DG Environment, the UK's fisheries
minister and a national NGO. The constituent member-
ship of the Cornwall SFC at the time was considerably
weighted towards the commercial sector
26
and it is diffi-
cult to envisage their membership voting for environ-
mental limitations where they had a perceived discretion.
Lessons learned by Defra from the inability of the voting
membership of the local fisheries managers adequately to
25 The Fal and Helford Designated Area (Fishing Restrictions) Order
200 8.
26 J Eagle `Democr acy and natural re source: British and American
approaches to public par ticipation in f ishery management' British
Council London (2004).
22 J Grall, J M Hall-Sp encer `Problems facing maerl conservation in
Brittany' (2003) 13 Aquatic Conservation 55^64.
23 Seaf ish A Guide to the Responsible Fishing Scheme (2009) Seafish UK
http:/ /onlinelibrary. wiley.com/journal/10.1002/%28 ISSN%29109 9-
0755/issues?year=2009.
24 A Ruiz Frau et al `Falmouth Bay maerl community benthic survey'
School of Ocean Sciences,University of Wales, Bangor (2007) 23.
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protect the Fal and Helford SAC has influenced the evolu-
tion of the Sea Fisheries Committees to Inshore Fisheries
and Conservation Authorities (IFCAs), which include
greater representation from civil society and individuals
and fewer vested interests from the f ishing fraternity.
Whether these alterations have been sufficient to effect
real change remains to be seen; IFCAs' constitutions are
quite similar to SFCs and there is a still a considerable com-
mercial fishing lobby sitting on IFCAs.
27
Recent changes in
Defra policy have been clearly communicated to IFCAs,
and it appears that most are treating their nature conser-
vation duties as a higher priority of their current actions.
Another complication that affects pro-active decision-
making, is that although the SFC was a regulator for
the area, it was not necessarily the licensing body for the
`plan or project' under Article 6(3), so would have been
acting to prevent deterioration under Article 6(2). With
no obvious trigger to act on it is not entirely surprising
the SFCwas slow to take the matter up, particularly as it
would have led to re al political issue s a mong its
membership.
The absence of an Article 6(3) trigger for Cornwall
SFC placed under scrutiny the role of the general fishing
vessel licence, which permitted UKvessels to fishthrough-
out the UK and gave shared access to EU waters. Admini-
stration of these licences was carried out by the MFA and
is now the preserve of the MMO in England and Wales
and central administrations in the remainder of the UK.
The Fal and Helford case highlighted a real question as to
whether these expansive licences did in fact authorise a
`plan or project' and should therefore trigger an appro-
priate assessment. The UK authorities tried to distinguish
their vessel licensing function from the Waddenzee ruling.
Defra argued that it was the vessel only which was
licensed, but the activity of fishing was permitted to all
UK citizens under the public right to fish, outside of the
vessel licence.
28
Defra held that the general role of the
licence was for the management of quotas, fishing fleet
capacity and effort,
29
not the environment. Examination
of the governing arrangements revealed that under
section 5 of the Sea Fish (Conservation) Act 1967 it was
the activity of fishing from vessels which was licensed
not just the vessel, and that these vessel licences were
bespoke for each vessel, containing quota restrictions for
individual vessels and a great number of local amend-
ments, moreover they were re -issued regularly for
different types of vessel.
30
They were in fact a micro-
management tool suitable to control a plan or project at
this level and should therefore be appropriately assessed
prior to reissue.
If the general fishing vessel licence authorises fishing in
the Fal and Helford SACwithout assessment (in breach of
Article 6(3), then it follows that the issue of all general
fishing licenses in the UK is a potential breach of the
Habitats Directive. This would therefore be a case of a
systemic failure by the MFA and latterly the MMO to
operate within the law in order to protect European
marine sites; it is a point that has been debated between
the MFA and MMO and the MCS and the NGO Client
Earth ever since.
31
This discussion was partially resolved
in 2012 when Defra issued new clear policy guidance on
the obligations of fisheries regulators to the legal delivery
of Article 6 ofthe Habitats Directive.
To some extent the fishing vessel licence question has
been left undecided because MMO/Defra and the IFCAs
have adopted a risk-based approach to site manage -
ment.
32
Instead of conducting an environmental impact
assessment for the general licence, this approach seeks
to restrict damaging activities at a site level, based on the
regulation of the riskiest activity first.While this may not
comply with the letter of the law, it is a practical response
to the issue.This process is in its infancy but the signs are
that considerably more effective regulationis being drawn
up by the IFCAs within the 6 nm limit and negotiations
are underway with other EU Member States under the
Common Fisherie s Policy for management of sites
beyond 6 nm.
Lessons learned ^ precautionary principle
As the Fal and Helford case progressed throughout 2007
and Defra started to be involved in the discussions, it
became clear that there was a continued argument put
forward by fishers that it was up to Natural England and
the MCS to reveal evidence of damage from scallop
dredging activities.
33
The bald meaning of Article 6(3) of
the Habitats Directive is that the competent authority
must not licence the activity if there is a chance of there
being a significant effect. It can only license the activity
once there has been an appropriate assessment and that
assessment has shown no adverse impact, or for reasons
of overriding public interest. This changes the whole
nature of the precautionary principle when applied to
Natura 2000 sites from a principle which is essentially
unenforceable to a strict requirement for an evidence
base before a management decision can be made which
may affect the site; the precautionary principle is shifted
from theory to practice.
27 T Appleby, P J Jones`The Marine and Coastal Access Act ^ A hornets'
nest?' (2012) 36 Marine Policy 73^77.
28 Defra Letter to Association of Sea Fisheries Committees `Letter
regarding application of Article 6(3)' (24 September 20 04) in D
Symes, S Boyes Review of Fisheries Management Regimes and Relevant
Legislation in UK Waters (University of Hull, Institute of Estuarine and
Coastal Studies) 58^59.
29 Marine Fisheries Agency (MFA) Letter to the Marine Conservation
Society`Habitats Directive and Fisheries Licences' (15 September 2009)
http:/ /www.marinemanagement.org.uk/protecting/conservation/
documents/0 90915___mcs.pdf.
30 Client Earth, Marine Conservation Society (MCS) Letter to Marine
Management Organisation `Fishing Vessel Licences and the Habitats
Directive' 1 August 2 011 http://www.marinemanagement.org.uk/
protecting/conservation/documents/110801___mcs-ce.pdf.
31 ibid.
32 Marine Management Organisation (MMO) (online) http://w ww.
marinemanagement.org.uk/protecting/conservation/documents/
ems___fisheries/policy___and___delivery.pdf.
33 Seaf ish response to Defra Consultation onmeasures to protect the Fal
& Helford Special Area of Conservation (SAC) from the impacts of
fishing with dredges and other towed gear (2008).
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The application of the precautionary principle in this
case has been exceptionally difficult for a number of
reasons:
*it is inherently costly to undertake such assessments,
particularly relative to the value of the fishery
*fishers weren't used to paying for environmental
impact assessments
*it is difficult to see the exactdistribution of habitats in
the marine environment
*it is often the case that damaging fishing activities are
ongoing at the time of designation. This means that
not only had the effort and area of impact not been
monitored but the removal of the activity wa s
unexpected politically; there was an expectation that
the statutory design ation of the site permitted
ongoing activities to continue because they were
somehow intrinsic to the site
*it is likely that there has already been some adverse
effect to which conservation features have already
been exposed.
As a result there has traditionally been a conflict between
the commercial sector and the environmental sector over
who collects the data.The commercial sector argues that
the environmental sector should prove what is down
there before it is protected, and the environmental
sector says that it is for the developer to prove its
activities are not harmful (or pay compensation) before it
carries out its activities.
34
Looking at both Article 6(2)
and 6(3) the latter view is clearly the legal one, but it has
not always been easy to implement this on the ground.
The political circumstances at the time of this case
(2007) involved tensions between Natural England, the
conservation NGOs, the towed bottom gear fishing in-
dustry that was being managed by Defra and the local
SFCs. A concurrent case in nearby Lyme Bay (south
Devon) wa s pitting the scientific survey evidence of
Natural England against the local scallop dredging fleet
activities between 2006 and 200 8 and eventually led to
the exclusion of bottom towed fishing from a 6 0 square
mile area of reef and sandy gravel habitat in northern
Lyme Bay. During this period, an unfortunate statement
was made by Dr Helen Phillips, the CEO of Natural
England describing the actions of the scallop dredging
fleet as being akin to `rape and pillage'. This is a phrase
which has resounded around the industry ever since,
35
and has exacerbated the tension which existed between
fishers and conservationists; a tension which makes
political decisions in this sector in favour of the environ-
ment exceptionally difficult.
Since the Fal and Helford Order was signed, manage-
ment within English European marine sites has continued
to be based on `current perceived risk'. The risk assess-
ment survey of all English European marine sites was
undertaken by the SNCAs between 2008 and 2010 by
site, and by activity. The purpose of the assessment was
to highlight marine SACs at current high, medium or low
risk according to current threats.
36
However, it is conten-
tious to undertake this approach, as it relies on good
information on the level of potentially damaging activities
taking place that in turn relies on good enforcement and
monitoring effort.It is clear that neither Natural England,
nor any other SNCA has the necessary resources to
monitor the extent of damaging fishing operations taking
place on a daily basis in all English European marine sites.
However, the potential still exists for damaging fishing
operations because of the wide nature of the authority
contained within the general fishing vessel licence. For
these sites, the necessary appropriate assessments of
the potential impact of f ishing activities have not been
undertaken, even though the SNCAs have identified the
likely significant effect of these activities in Regulation 33
and 35 advices.
By way of contrast, in 2010, the Welsh Government, in
the face of local fishing and conservation protests passed
the Wales Scallop Order 2010, banning scallop dredging
from all Welsh European marine sites as a result of in-
creased activity (not necessarily proven damage) in
2008.
37
Thus,Welsh Government policy in this instance
was effectively to manage European marine sites by
using the precautionary approach of Article 6(2) and
6(3) of the directive. Politically, this was an easier decision
for the Welsh Government, as the vast majority of Welsh
resident fishers operate static fishing gears that are
relatively benign to the conservation of European marine
sites in comparison to `foreign' scallop dredgers.
38
It was
clear that many of the vessels fishing in the Welsh marine
sites in 2008 were from Scotland and England, making
the decision to pass the Order a politically expedi-
ent one within the fishing (voting) communities of Wales.
In contrast, the UK Government and Defra are more
heavily lobbied by the towed fishing sector (the National
Federation of Fishermen's Organisations (NFFO)), and
local scallop and trawl fishery represented associations
(such as Southwest Inshore Fishermen's Association)
which want to continue to fish using mobile bottom fish-
ing gears without being subject to onerous assessment
bureaucracy. As such, it may be politically more difficult
for Defra in England, the Scottish Government and the
Northern Irish Assembly to undertake systemic protec-
tion measures for the remaining UK marine sites than the
Welsh Government, regardless of the advice of their
SNCAs.
The argument for effective management of these sorts
of damaging fishing activities is ongoing, but the active
creation of regulation on the risk-based approach in
England has addressed many of the major concerns there.
34 Fish2Fork online`Scallop Dredgers and Trawlers Face Expulsionfrom a
quarter of inshore waters' http://www.fish2fork.com/en-GB/news-
index/Scallop-dredgers-and-trawlers-face- expulson-from-aquarter-
of-inshore-waters.aspx.
35 NFFO online`Dogger Bank Marine Protected Area' http://www.nffo.
org.uk/news/dogger___bank___marine.html.
36 M Coyle, S Wiggins `European marine site risk review' Natural England
Research Report no 038 (2 010) ISSN 1754^ 1956.
37 The Scallop Fishing (Wales) (no 3) Order (2010).
38 Nautilus Consultants Ltd `Study into Inland and Sea Fisheries in Wales'
(20 0 0) http://ww w.nautilus-consultants.co.uk/sites/default/files/
wales.pdf.
138 (2013) 25 ELM : MANAGING COMMERCIAL FISHING IN AN ENGLISH SAC ^ IMPLICATIONS : SOLANDT, APPLEBY, HOSKIN
ENVIRONMENTAL LAW & MANAGEMENT PUBLISHED BY LAWTEXT PUBLISHING LIMITED
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Questions still remain around the regulation of damag-
ing fishing operations in the Scottish and Northern Irish
Natura 200 0 sites and those outside the 6 nm limit.
Conclusion
The Fal and Helford ca se has provided a fa scinating
study into the application of environmental legislation
to f isheries management. The UK not only now has to
implement the Habitats Directive offshore, but there are
requirements for good ecological status under the Water
Framework Directive for 2015 a mile out to sea (3 miles
in Scotland), requirements for good environmental status
under the Marine Strategy Framework Directive for all
UK waters by 2020 and the implementation of marine
protected areas under the Marine and Coastal Access
Act 20 0 9 and the Marine (Scotland) Act 2010. If the
Habitats Directive is being applied to UK inshore vessels,
it must soon be applied to all EU Member States' vessels
outside the 6 nm limit.
The case was a pivotal moment in the evolution of
the marine conservation management in the UK. The
realisation that commercial fishing is subject to environ-
mental legislation after almost complete exemption
has gradually dawned on f isheries regulators. The Fal and
Helford is not the only case in this area, but it is symp-
tomatic of a rapidly changing regulatory climate for marine
fisheries.
MANAGING COMMERCIAL FISHING IN AN ENGLISH SAC ^ IMPLICATIONS :SOLANDT, APPLEBY, HOSKIN : (2013) 25 ELM 139
ENVIRONMENTAL LAW & MANAGEMENT PUBLISHED BY LAWTEXT PUBLISHING LIMITED
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... One significant conclusion from the Marseille workshop was that on a day-to-day basis, local balanced groups of stakeholders should lead on decision-making processes in MPAs, but topdown measures are required to meet conservation objectives for sites when local groups fail to deliver management (e.g. Jones, 2014;Solandt, Appleby, & Hoskin, 2013). A further element revealed by the workshop was that, when MPAs and networks are scaled up to national from local sites, governance mechanisms and the bodies that drive day-to-day management also need sufficient resources, clear terms of membership, targets and objectives (Lieberknecht, Wanfei, & Jones, 2013;Marine Ecosystems and Management, 2014). ...
... In the UK, conservation is devolved between the different countries (Northern Ireland, Wales, Scotland and England). Of these only England has regional fisheries and conservation groups called 'Inshore (1) avoid deterioration; and (2) prevent any new activities ('plans or projects') that could damage the site (Clark et al., 2016;Solandt et al., 2013). ...
... The area around the reefs is extensively trawled and dredged for scallops (Pikesley et al., 2016). It is also fished using pots (for crab, lobster (Dineson & Morton, 2014;Rees et al., 2013;Solandt et al., 2013;Terry et al., 2017). These examples received a mixed management response, often only dealing with the situation once dredging had already taken place. ...
Article
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• Case studies of Marine Protected Area (MPA) upscaling were solicited from participants of a workshop at the International Marine Protected Areas Conference held in Autumn 2013 in Marseille. • One such case study was Solandt, Jones, Duval‐Diop, Kleiven, and Frangoudes (2014; Governance challenges in scaling up from individual MPAs to MPA networks. Aquatic Conservation: Marine and Freshwater Ecosystems, 24, 145–152) which illustrated the role of science, non‐governmental organizations, government and local regulators in applying systemic management measures for local MPAs based on risk, highlighting the importance of balancing top‐down and bottom‐up drivers. • Here we follow up on the UK example, illustrating the incentives and actors involved in developing centralized and subsequent fisheries management measures in UK waters. Forty local laws were created to protect features in 143 inshore MPAs between 2013 and 2019. • We illustrate best practice in delivering management, focusing on multiple practitioner involvement in a single MPA and the monitoring put in place after trawling and dredging were banned. • We reflect on how the governance mechanisms in place in English inshore waters can be used as a template to allow for progressive MPA management in other coastal states.
... And what that designation means is that any development we do, there's a strict European planning process that we've to go through. And this is where we've ended with projects costing a lot more money, taking a lot longer in time to put forward and to achieve when it comes to development, predominantly because of that legislation that's there protecting the environment.Ŵ hile the designation means that the use of the site is subject to EU law, it is important to note here that the law distinguishes between ongoing activities and new plans or projects: the former calls for management to ensure there is no deterioration of the natural habitat, whereas the latter requires appropriate assessment to be carried out to determine implications for the site in light of conservation objectives before any licenses are granted (Solandt et al. 2013). Disputes within SACs are also subject to two principles fundamental to the Habitats Directive: the polluter (or damager) pays principle and the precautionary principle. ...
... The activity continued, however, as a consequence of legal vagueness as to whether scallop dredging was an ongoing activity that simply required management to avoid damage and disturbance, or a new plan or project requiring appropriate assessments. Aligned with cultural and economic understandings (i.e., the view that maerl was an abundant resource prone to coming loose naturally), the dredging activity was initially considered as 'ongoing,' and presumed to affect mainly maerl that was already dead (Solandt et al. 2013). These understandings were disputed by local campaigners and environmental organisations, which in 2006 started the process of challenging the scallop fisheries. ...
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New technologies have increasingly featured in environmental conservation conflicts. We examined the deployment of imaging devices such as sonar equipment and cameras to survey the Fal estuary in Cornwall, UK. Due to heavy use of these waters, there have been several disputes coalescing around protected marine features, including the estuary’s rare maerl beds. A comparison of two cases, scallop dredging and docks development, showed technical instruments being deployed to produce information about the marine environment as evidence to inform decision-making. The use of imaging devices stimulated political action and was regarded as a move away from emotion-based decision-making towards desired objectivity. Simultaneously, however, the process of deploying these devices was challenged and there was recognition that the resultant information could be used to construct the estuary as a politically charged space. Thus, rather than clarifying and resolving contentious issues, technological interventions generated new baselines for knowledge contestation and amplified ongoing battles for credibility and authority.
... No Annex II marine species are sessile, making the protection of benthic habitats (Annex I sites) critical for both healthy seabeds and their associated communities. Application of protection measures to these 'features' under EU law, in terms of case law on land Anon (2013b), and at sea Solandt et al. (2013), coupled with ecological evidence requires conservation of biological communities e both mobile and sessile e that inhabit these features to achieve favourable conservation status (ClientEarth and MCS, 2013;Rees et al., 2013). Such legislation, and indeed the guidance issued by the European Commission (Anon, 2013a) gives examples of communities associated with Annex 1 habitats. ...
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A paper investigating the value of the UK approach to protecting features in Marine Protected Areas, rather than moving to protecting the whole of sites, investigating management, legal opportunities and current governance mechanisms to put this in place.
... These can be cumulative, synergistic or even buffering in effect. For example, the Fal and Helford European Marine Site has had historical scallop dredging (up to 2008) and maerl extraction (up to 2003), which affected the condition of the site (Solandt, Appleby, and Hoskin 2013). So accurately assessing the impact of ongoing or new activities in light of historical exploitation is complex. ...
Article
Full-text available
Marine Protected Areas (MPAs) have developed in number and area at an unprecedented rate over the past 20 years in the UK. As with all other states, UK MPA designation and management requires evidence on the location, state, extent and vulnerability of marine organisms. Whilst the evidence base has been used to designate 297 sites in two decades covering over 20% of our exclusive economic zone (EEZ) area, the level of evidence required to manage activities and the necessary secondary legislative mechanisms and controls are unwieldy and overly complex. This makes the practical implementation of management measures difficult and blocks the ambition that such a large MPA network merits. Furthermore, a fundamental difference of opinion exists between government, regulators and civil society of levels of protection required to afford the marine environment 'good' status, given disagreement of baseline condition of our marine estate. Regardless of these difficulties, some regions of the UK have seen positive progressive management. It is hoped that the best examples of management can be transferred to other districts to encourage more efficient progress.
... Over the period 2001-2008, the Wadenzee judgement, combined with pressure from the Marine Conservation Society and other local campaigners and conservation NGOs, led to action in relation to individual high profile cases where evidence of damage was clear. As a result protection by fishing authorities was carried out in offshore EMS at the Darwin Mounds SAC [9], inshore at the Firth of Lorne (Scotland), Strangford Lough (Northern Ireland), and more recently at the Fal and Helford (southwest England) [34]. In all these areas reefs were being damaged, whilst maerl was being damaged in Falmouth Bay (Solandt et al., 2003). ...
... For a number of years after implementation, the legislation behind EMS appeared to have little teeth, but that changed in 2004 with the precedent set by a legal case in the Wadden Sea SAC which designated fishing as a plan or project which required appropriate assessment (De Santo, 2007). Further pressure from NGOs on the UK government to enforce EMS legislation, particularly with respect to managing fishing activities in SACs (Solandt et al., 2013;has seen a sea change in the protection of these sites. Since 2012 Defra have developed a risk-based approach to managing these activities based on a matrix which combines the vulnerability of the features with the effects of the fishing gear to be considered (Defra, 2013). ...
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Key findings  The sustainability of the UK fisheries, regulated by the EU Common Fisheries Policy (CFP), has improved considerably in recent years. The latest reform of the CFP provides cause for further optimism.  The majority of fish stocks under EU management are highly mobile and straddle international boundaries. Therefore, even if the UK left the EU there would be continued need for international governance of fisheries.  The rights of foreign vessels to fish in British waters (and of British boats to fish in other territories) would be subject to re-negotiation should the UK leave the EU. The outcome of any such negotiations is highly uncertain.  Many other EU environmental policies (e.g. Habitats Directive, MSFD, and funding streams (e.g. EMMF) have benefits for fisheries or for the marine ecosystems upon which fisheries depend. The fate of these instruments under a Brexit is highly uncertain.
... For a number of years after implementation, the legislation behind EMS appeared to have little teeth, but that changed in 2004 with the precedent set by a legal case in the Wadden Sea SAC which designated fishing as a plan or project which required appropriate assessment (De Santo, 2007). Further pressure from NGOs on the UK government to enforce EMS legislation, particularly with respect to managing fishing activities in SACs (Solandt et al., 2013;has seen a sea change in the protection of these sites. Since 2012 Defra have developed a risk-based approach to managing these activities based on a matrix which combines the vulnerability of the features with the effects of the fishing gear to be considered (Defra, 2013). ...
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In 2015 David Cameron announced that he would seek to renegotiate the UK’s existing terms of membership with the EU and put the outcome to a vote in a national referendum. The result of that vote is hugely significant because it will shape the UK’s relationship with the rest of Europe for decades to come. David Cameron has described it as “the most important decision that the British people will have to take at the ballot box in our lifetime.” The stakes are particularly high in a mature policy area such as the environment, which has been profoundly affected by a wide array of EU policies covering agriculture, energy, fisheries, climate change and of course environmental protection. The EU is well-known for its economic activities – its single market, customs union and currency. Yet its environmental policies, which have quietly accumulated since the early 1970s, address every aspect of environmental protection from air and water pollution, through to land-use planning and climate change. Together, they constitute one of the most comprehensive bodies of environmental protection law in existence anywhere in the world today. Because policy making in Brussels is often highly technical, its net effect on the daily lives of UK citizens and their local environments tends to escape media attention. This expert review together with a much shorter executive summary seek to address that situation. It provides a detailed review of the academic evidence on how EU membership has influenced UK policies, systems of decision making and environmental quality. Containing 14 chapters and over 60,000 words, it documents how the EU has affected UK environmental policy and how, in turn, the UK has worked through the EU to shape wider, international thinking. It has been authored by 14 international experts, who have drawn on the findings of over 700 publications to offer an impartial and authoritative assessment of the evidence. Second, this review looks forwards in order to explore what the effects might be of a vote either to remain or leave the EU. A vote to remain would mean that the UK operates in a ‘reformed’ EU. But what would that actually look like? By contrast, a vote to leave would push the UK into unchartered waters: no state has ever left the EU before. Would environmental standards be more likely to rise or fall, who would make significant decisions and what are the environmental effects likely to be? This review seeks to cut through the technical complexity and the uncertainty associated with these choices by transparently exploring the risks and opportunities that are likely to arise across three main scenarios:- • A vote to Remain – (The ‘Reformed EU option’) • A vote to Leave – and become a member of the European Economic Area (EEA) (The ‘Norwegian option’) • A Vote to Leave – and negotiate free trade deals with the EU (The ‘Free Trade option’) There are infinitely more scenarios that could be considered, but these three capture the most critical choices, risks and opportunities. We hope that by presenting the evidence in this way, this review will give voters a much fuller insight into what is at stake on 23 June.
... For a number of years after implementation, the legislation behind EMS appeared to have little teeth, but that changed in 2004 with the precedent set by a legal case in the Wadden Sea SAC which designated fishing as a plan or project which required appropriate assessment (De Santo, 2007). Further pressure from NGOs on the UK government to enforce EMS legislation, particularly with respect to managing fishing activities in SACs (Solandt et al., 2013;has seen a sea change in the protection of these sites. Since 2012 Defra have developed a risk-based approach to managing these activities based on a matrix which combines the vulnerability of the features with the effects of the fishing gear to be considered (Defra, 2013). ...
Technical Report
Full-text available
In 2015 David Cameron announced that he would seek to renegotiate the UK's existing terms of membership with the EU and put the outcome to a vote in a national referendum. The result of that vote is hugely significant because it will shape the UK’s relationship with the rest of Europe for decades to come. David Cameron has described it as “the most important decision that the British people will have to take at the ballot box in our lifetime”. The stakes are particularly high in a policy area such as the environment, which has been very heavily affected by a wide array of EU policies covering agriculture, energy, fisheries, climate change and of course environmental protection. This blog presents the results of an ESRC funded expert review of UK-EU relations in the environmental sector. It investigates how membership of the EU has affected the UK environment (policies, processes and quality) and what might change in the event of a vote to Remain or Leave. Our expert review (14 international experts, 700 references and over 60.000 words) and its executive summary are now available. Further details: http://environmenteuref.blogspot.co.uk/
... Isolated sites were protected in a piecemeal fashion primarily as a result of local campaigns, e.g. Falmouth Bay [35], and Lyme Bay [27]. This study reveals that within southwest UK coastal waters, the MPA network confers protection to approximately 60% of known pink sea fan colonies by way of either EU-level Special Areas of Conservation (SACs), or more recently under national legislation, through 'Marine Conservation Zones' (MCZs) under the Marine and Coastal Access Act (2009). ...
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Globally, the need to identify and establish integrated and connected systems of Marine Protected Areas (MPAs) is becoming increasingly recognised. For best practice, these networks need to be planned and assessed against multiple criteria. However, building a sound evidence base to support decision-making processes is complex, as well as fiscally and logistically challenging. Recent studies have demonstrated the utility of integrating ‘citizen science’ data into mainstream scientific analysis, particularly where broad-scale spatial patterns of distribution are required. In UK waters, the pink sea fan (Eunicella verrucosa) is a nationally protected slow growing, cold-water coral, and is a representative species of reef features that provide habitat for many other sessile species. However, this species is vulnerable to physical impact and loss of suitable substratum, and is likely highly vulnerable to bottom-towed fishing gears. In this study, data from a volunteer-based marine survey programme (‘Seasearch’) are analysed with the aim of describing the spatial distribution and relative abundance of pink sea fan colonies throughout southwest UK coastal waters. The congruence between pink sea fans and the extant southern UK MPA network is reported, and the current threat from Bottom-Towed Gear (BTG) to pink sea fan dominated reefs, that have historically lacked protection, is quantitatively assessed. This analysis reveals that protection of this and other benthic species has been increased by management of previously ‘open access’ MPAs. Nonetheless, areas of pink sea fan habitat and their host reef systems exist outside extant protected areas in southwest UK seas, and as such are potentially at risk from bottom-towed fisheries. This analysis demonstrates the utility of well-organised citizen science data collection and highlights how such efforts can help inform knowledge on broad scale patterns of biodiversity.
Article
The global marine environment has seen recent rapid growth in Marine Protected Areas (MPAs). In UK (English) waters, MPAs incorporate Special Protection Areas (SPAs), Special Areas of Conservation (SACs) and Marine Conservation Zones (MCZs), each with specific conservation objectives. In accordance with legislation, the UK has adopted a feature-based approach to MPA designation and monitoring, whereby protection of listed species and habitats are prioritised. The Eddystone Reef (part of the Start Point to Plymouth Sound and Eddystone SAC, South West UK) is designated solely for its reef features. The reef is at high risk from fisheries, particularly bottom-towed fishing gear. On 1st of January 2014 bottom-towed fisheries were prohibited within designated areas of the reef. In this study, images from drop-down camera surveys were analysed to quantitatively assess patterns in diversity and abundance of benthic fauna on reef and mixed substratum habitats that are closed, and remain open, to bottom-towed fisheries. Coarse sediments in areas closed to bottom-towed gear supported a greater abundance of sessile, upright, slow growing species (e.g. pink sea fans, ross coral, branching sponges) than were present in areas still actively towed over. Coarse sediments open to bottom-towed gear had greater abundances of motile, scavenging or opportunistic species. This study highlights the potential for positive conservation benefits beyond the traditional feature-based approach to MPA designation and monitoring. Further conservation gains could be made by reducing fragmentation of protected habitats and by increasing area coverage of statutory controls on bottom-towed fishing in already designated MPAs.
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1.Brittany has the majority of French maerl beds and some of the most extensive maerl grounds in Europe.2.Breton maerl forms ancient (>5500 yr) but threatened habitats; several beds have been destroyed in the past 30 years.3.Maerl extraction, eutrophication, mariculture and fishing are all major threats to Breton maerl beds, as is a continuing uncontrolled spread of the invasive gastropod Crepidula fornicata.4.Maerl beds occur in 14 of the 28 Natura 2000 sites proposed along the Breton coast.5.Maerl habitats are currently impacted by human activities in nearly all of the Breton proposed Natura 2000 sites which were mainly selected for terrestrial nature conservation features. Copyright © 2003 John Wiley & Sons, Ltd.
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The Marine and Coastal Access Act 2009 is now enacted into law. This paper looks at predictions made about new law by one of the authors, Peter Jones, in his paper The Marine Bill: Cornucopia or Pandora's Box [1] and assesses how successful the Act has been in turning aspirations into law. The paper focuses on the following areas: ecosystem protection, stakeholder engagement, marine spatial planning and the provision of a network of highly protected marine reserves, and raises concerns that the ecosystem approach has progressively been dropped in the drafting process of the legislation. Concerns are raised that the new Inshore Fisheries and Conservation Authorities have similar inherent conflicts of interest to those exhibited by Sea Fisheries Committees, which they sought to replace. The effectiveness of marine planning is questioned, as there appear to be inbuilt loopholes for public authorities to avoid complying with the marine plans. The draft marine policy statement (MPS), published in July 2010, includes appropriate environmental safeguards, but the MPS has not yet been formally adopted. The absence of a concrete target for highly protected marine reserves means there is a danger that designations under the Act may have little effect on the ground. In conclusion the Act provides some new mechanisms for marine protection, but arguably does not yet provide a framework for implementing the ecosystem approach and is not an end in itself.
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In European nature conservation law, Natura 2000 sites are protected towards ensuring biodiversity through the conservation of natural habitat types and of wild fauna and flora. Anyone planning a potentially harmful activity needs to assess significant effects on a site's conservation objectives. While EU case law currently demands certainty provided by science, we will show that science can never rule out uncertainty. We distinguish three sources of uncertainty: ignorance (inadequate understanding), unpredictability of ecological system behaviour and ambiguity in the science–policy interface. Only ignorance can be solved by science alone. We will specify sources of uncertainty encountered in the significance decision procedure as part of the assessment of article 6 Habitats Directive. We will explore how they affect the use of knowledge during the three steps of the assessment process, i.e. identification of site conservation objectives, predicting the impact of the planned activity and assessing the significance of any effects on the Natura 2000 site. The claim that certainty has to be provided by science is unrealistic, because policy causes a good deal of uncertainty affecting how science can operate. This is discussed in the light of a common learning process by science and society. The European precautionary principle should not be limited to ignorance alone. Within the precautionary principle risk reduction measures can be allowed and thus uncertainties could be accepted, including those uncertainties caused by unpredictability and ambiguity. Finally we propose strategies to manage uncertainty in nature conservation and law planning.
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Marine protected areas (MPAs) are spatially defined marine units in which one or more human activities—particularly fishing—are restricted or prohibited. They represent a precautionary and ecosystem-based approach to ocean management (Mangel 2000; Pikitch et al. 2004; Jones 2006). The 1992 Convention for Biological Diversity set a target for 10% of the global marine area to be designated as MPAs by 2010. Progress with designating MPAs is, however, slow, MPAs covering just 1.3% of the marine area and 3.2% of marine areas under national jurisdiction. Consequently, the deadline was recently extended to 2020. Nonetheless, in the past two decades there has been a rapid increase in MPA research and implementation throughout the world. If the governance of MPAs is improved in ways we describe here, MPAs and other place-based approaches will continue to be important tools for the management of marine resources.
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This paper reports the findings of a preliminary analysis of 15 case studies of inshore marine protected areas in the UK. It draws on the common-pool resource (CPR) literature and is premised on the thesis that building partnership capacity amongst relevant authorities and resource users provides a critical basis for overcoming collective action problems (CAPs), through the development of incentive structures and social capital, in order to achieve strategic objectives. Particular attention is paid to the influence of statutory marine biodiversity conservation obligations to the European Commission for marine special areas of conservation (MSACs), as these are an important external contextual factor. The risks of imposition and parochialism are outlined and the challenges of taking a balanced approach are discussed. The challenges posed by the attributes of the marine environment are considered, as are those posed by the policy framework for MSACs. The findings are discussed in relation to three questions: (i) which partnership models appear to have the potential to overcome the CAPs posed by inshore MSACs? (ii) what CAPs had to be addressed during the early phase of development of the MSAC co-management regimes? (iii) what are the likely future CAPs for the collaborative management of MSACs that each partnership will need to address? These preliminary findings will form the basis for future studies to analyse the outcomes of these 15 initiatives, in order to assess the strengths, in various contexts, of different approaches for building resilient and balanced, thereby effective, institutions for the co-management of MSACs in the UK.
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Incomplete databases often require conservation scientists to estimate data either through expert judgment or other scoring, rating, and ranking procedures. At the same time, ecosystem complexity has led to the use of increasingly sophisticated algorithms and mathematical models to aid in conservation theorizing, planning, and decision making. Understanding the limitations imposed by the scales of measurement of conservation data is important for the development of sound conservation theory and policy. In particular, biodiversity valuation methods, systematic conservation planning algorithms, geographic information systems (GIS), and other conservation metrics and decision-support tools, when improperly applied to estimated data, may lead to conclusions based on numerical artifact rather than empirical evidence. The representational theory of measurement is described here, and the description includes definitions of the key concepts of scale, scale type, and meaningfulness. Representational measurement is the view that measurement entails the faithful assignment of numbers to empirical entities. These assignments form scales that are organized into a hierarchy of scale types. A statement involving scales is meaningful if its truth value is invariant under changes of scale within scale type. I apply these concepts to three examples of measurement practice in the conservation literature. The results of my analysis suggest that conservation scientists do not always investigate the scale type of estimated data and hence may derive results that are not meaningful. Recognizing the complexity of observation and measurement in conservation biology, and the constraints that measurement theory imposes, the examples are accompanied by suggestions for informal estimation of the scale type of conservation data and for conducting meaningful analysis and synthesis of this information.
TheJones`The Marine and Coastal Access Act ^ A hornets' nest?' (2012) 36 Marine Policy 73^77
  • P Appleby
  • Jones
Appleby, P J Jones`TheJones`The Marine and Coastal Access Act ^ A hornets' nest?' (2012) 36 Marine Policy 73^77.
EuropeanWiggins`European marine site risk review The Scallop Fishing (Wales) (no 3) Order
  • S Coyle
  • Wiggins
Coyle, S Wiggins`EuropeanWiggins`European marine site risk review' Natural England Research Report no 038 (2010) ISSN 1754^1956. 37 The Scallop Fishing (Wales) (no 3) Order (2010).