Dr Dan Hull (Northern Ireland Assembly Research and Information Service): OK. Thank you, Chair. Good morning and happy new year, members. The Bill paper seeks to provide an overview of the inland fisheries elements of the Fisheries Bill. As members will have seen, the Bill has 19 clauses dealing with sea fisheries, inland fisheries, the issue of fixed penalty notices and general issues, but the paper that I have produced focuses just on the inland fisheries clauses; that is, clauses 10 to 13. First of all, I will briefly describe what the Bill seeks to do with those clauses. I will then try to focus on each of those aspects in a little more detail, if I may.
As a recap, clause 10 seeks to remove the requirement that a certificate from a Justice of the Peace accompanies a fish dealer's licence application. Clause 11 would extend the current requirement, that permission from DCAL must be required for the removal of material from a river bed, to also cover lakes, in order to protect potential spawning grounds. Clause 12 would add the species of lamprey to that list of species that must be provided with free passage via a fish pass, and would also enable DCAL to remove dams where an owner cannot be traced. Clause 13 would require anyone taking water from a river, such as mill or hydropower installation owners, to fit a grille with an aperture of 10 mm or less for all new installations.
Finally, clause 14 deals with the issue of fixed penalties. What both Departments are seeking to do is enable fixed penalty notices to be issued instead of pursuing criminal convictions in the first instance, but, because that is an overarching clause that applies both to sea fisheries and to inland fishery offences, I have not dealt with it in the paper.
First of all, before I focus on each of those clauses, it is worth giving a little bit of legislative context. Obviously, what the Bill is seeking to do is amend current legislation. With regard to clauses 10 to 13, essentially what we are talking about is the Fisheries Act 1966, but there are four pieces of European legislation that are also relevant to us here, so I will briefly describe each of those.
First of all, there is the water framework directive. Under that, the Executive have a responsibility to achieve good ecological and chemical status for waters in the river basins in their territory. A statutory rule passed in 2003 states that the Department of the Environment has primary responsibility here, but a number of other Departments, including DCAL, are specifically named within that as having responsibility. Therefore, DCAL would have a responsibility under that directive towards inland fisheries in order to ensure that good ecological status is maintained within the relevant waters here.
Secondly, there is the eel regulation. That means that Northern Ireland must have its own eel management plan. Indeed, as the Chair will probably remember, one was introduced by DCAL in 2010. The regulation states that we have various obligations towards our eels, including, for example, measures:
Thirdly, there is the habitats directive. That has relevance for us here in a number of different respects. The Atlantic salmon, or Salmo salar, its species name, is listed in annex 2 of the habitats directive. It is therefore a species that requires special areas of conservation to be set up. We have 57 such areas of conservation in Northern Ireland, of which five specifically include salmon. It is also listed in annex 5 as a species whose taking in the wild and exploitation may be subject to what are called management measures. Members will recall that, in March 2014, three regulations were passed in order to implement mandatory catch-and-release for salmon and sea trout angling, but also to prohibit commercial salmon and sea trout netting.
Finally, there is the European services directive, but I will talk more about that in the context of its clause in a moment.
I mention those four pieces of European legislation because the consultation document that both Departments put out, the explanatory and financial memorandum, and the regulatory impact assessment all state that some of those legislative changes are specifically proposed in order to ensure that DCAL meets its European obligations, but the degree of urgency or the nature of the ramifications if it does not enact those proposals is not stated specifically, so I think there is probably a question mark over those two issues.
If I may, I will just go through a short clause-by-clause analysis of clauses 10 to 13 and suggest some areas that might benefit from further scrutiny and some outstanding questions that we may want to ask. I will run through each of those now, and then I will finish with a quick look at the broader issue of fish stocks, particularly with regard to the species of salmon and eels.
As I said a moment ago, clause 10 would remove the requirement that a certificate from a Justice of the Peace must accompany a fish dealer's licence application. The explanatory and financial memorandum states that that is in order to comply with what is called the EU services directive. The intention behind that directive is to improve the functioning of markets by removing what are called legal and administrative barriers to trade. Essentially, that means that one of the ways of doing that is to ensure that applications can be made for a fish dealer's licence from anywhere in the EU, from a distance and entirely electronically, hence the removal of the Justice of the Peace certificate, which somebody from another member state might not easily be able to acquire. However, some consultation respondents suggested that rather than just lifting this requirement, we may have to replace that or counter it, if you like, with a tightening of regulations in other regards because it might be legitimate to ask whether the removal of the requirement for a Justice of the Peace (JP) certificate increases the number of dealers to a level which might threaten inland fish stocks. There are currently 190 licensed fish dealers in Northern Ireland compared with 81 in 2009, for example. They have doubled over that period — in fact, they have more than doubled.
Clause 11 would extend the current requirement that permission from DCAL must be acquired for removal of material from a river bed, as exists at the moment, to lakes in order to protect potential spawning grounds, as it says. At the moment, planning permission and an environmental impact assessment are already required for all new sand and gravel extraction operations. It prompts the question: does the extension of a permit from DCAL to include lakes constitute additional regulation? In theory, this may be the case, but the Minister of the Environment has indicated that, for example, in the case of Lough Neagh:
It is not clear to what extent such operations are carried out on sections of the lake bed which may constitute spawning grounds. If a prosecution were to be brought by the Department under this provision, would it have to be proven that the sand and gravel extraction was happening in an area which has, or had before the sand and gravel was removed, a spawning ground? To what extent do we have a good baseline of evidence which suggests exactly where spawning grounds are? That is a question that I cannot answer.
Clause 12 makes two key amendments to section 54 of the Fisheries Act, which deals with the issue of dams in rivers. This section already provides DCAL with the powers to insist that a fish pass is constructed in a dam to permit the free passage of salmon, trout and eels; those three species. However, the new Fisheries Bill seeks to do two further things; first, to add lampreys to that list, so that they must be allowed free passage, and, secondly, to give the Department powers to remove a dam entirely where the owner cannot be traced.
First, on the issue of lampreys, the Bill does not make clear to which of our three species of lamprey it refers. We have the brook lamprey, the sea lamprey and the river lamprey. All three are named in the habitats directive as requiring some form of special protection. The Department's consultation document referred to river lampreys in particular as being poor swimmers, so that when they are returning from the sea into rivers to spawn, they require special measures or attention. However, respondents to the consultation raised complaints that fish passes that are suited to lampreys may also allow other less desirable species in. Comments were also made about lampreys being parasitic on salmon. It is certainly true that during their juvenile phase at sea, lampreys feed on salmon while they are swimming. They attach themselves to the side of them and feed off them. This raises the question of what the knock-on effect will be on salmon of facilitating free passage for lampreys.
Secondly, looking at the issue of removal of dams, it seems likely that most dams for which an owner cannot be traced will be historic ones, but it is unclear how many such dams or associated features we have in existence. It is even more difficult to ascertain quite how many of their owners are unknown. I have tried to look at this issue and quantify it in some way. The Northern Ireland Industrial Heritage Record lists 4,200 entries for historic water mills, but 6,700 when a broader categorisation of mill ponds, races, dams and so on is taken into account. Some of these will predate 1842, which is a cut-off point, if you like, in the Fisheries Act, before which those features are exempt from having a fish pass or from being removed. However, I would assume that a significant number will be of later 19th- and early 20th-century date and therefore might still have some historical significance in telling us about the industrial history of this place, particularly regarding water mills.
If a historic dam is to be removed, the legislation does not specifically set out what the process will be. We might assume perhaps that it will follow planning regulations and, in particular, PPS 6. However, if this is the case, there will be a cost to the Department, in this case DCAL as the developer, in carrying out mitigation measures. PPS 6 says that, if it is a historical or archaeological feature, a condition can be set that an archaeological assessment or evaluation must be paid for by the developer — the Department in this case — and that it may be the case, if it is seen as a feature of some importance, that it needs to be recorded and perhaps excavated before its removal. It might be legitimate to ask how many dams of unknown ownership the Department feels are in existence that it may seek to remove and what the costs of removal would be.
Clause 13 would require anyone taking water from a river, like a mill owner or a hydropower operator, to fit a grill of 10 mm aperture or less; so, the holes in the grill have to be 10 mm or less. This is only for new installations, but the idea is to prevent fish from swimming into hydropower installations. At present, a grating with a somewhat bigger maximum clearance of either 25 mm or 51 mm must be installed depending on the age, whether it is pre-1991 or post-1991. Those have to be fitted already, but, at the moment, an additional temporary wire mesh of 10 mm or less has to be slotted in at certain times of the year, mostly March, April and May. That is when the fry that have hatched in the winter are descending the river and coming out to the ocean, and it is to prevent those fry from swimming into hydropower installations.
Clause 13 would mean that permanent grills of less than 10 mm would have to be installed. They would have to sit there all the time essentially. However, is the scientific evidence base for the impact of small hydroelectric installations sufficiently robust to justify an amendment to legislation? As we heard a moment ago, a number of consultation respondents, particularly owners or operators of these installations, stated that the evidence that fish are damaged or killed by hydroelectric turbines is mixed. There are difficulties in assessing the impact of hydroelectric schemes in Northern Ireland on the health of fish, as most of the existing evidence derives from large installations that might be quite different. The evidence from these large hydroelectric installations suggests that, yes, there is an impact on migrating fish caused by the size of some of these impoundment structures — essentially the big concrete structures used to house the turbines — and in the alteration in the flow of the river, the fish becoming entangled in the turbines themselves, the potential loss of a spawning habitat and that nursery habitat when the fry have hatched, and the cumulative effect of multiple schemes on the same river. However, the hydroelectric installations here in Northern Ireland are largely smaller structures, and it is still unclear what impact these have on salmon and eels.
Evidence from elsewhere suggests that factors like turbine design and the ways in which fish are deterred from entering the turbine can be influential in the flow of fish. For example, studies conducted by the Environment Agency in England in 2007 and 2008, which observed both salmon and eels going through what is called an Archimedes's screw turbine, demonstrated that there are actually very low levels of damage and almost no mortality at all. The fish essentially pass right through the turbine and out the other side. The Republic of Ireland, Scotland and England all have guidelines that advise potential developers of hydroschemes on the designs that are likely to have the least environmental impact, but Northern Ireland does not yet have guidance of this nature. For example, some best practice guidance advises that, when you fit gratings, it is not just the existence of those gratings that will deter fish but also the angle of them. For best effect, you have to deter fish from entering the channel but also try to channel them towards an alternative route.
All this raises a number of questions. First, is the scientific evidence base for the impact of these small, what are often called run-of-river, hydroelectric installations sufficiently robust to justify an amendment to legislation? If the evidence is strong and robust, is the installation of a permanent 10 mm grating for all of these new installations the best protection for migrating fish? If so, should further specification be made of the angle and position of gratings rather than just the size of them? The Fisheries Act 1966 places an obligation on the owner or operator of each of these grills to keep them in constant repair. However, this raises the issue of whether owners will be able to keep up with the task of keeping these grills free of vegetation, particularly in the autumn when there is a large fall of leaves, for example. If that clearance aperture is that much smaller on new installations, could it be the case that there is a greater flood risk as a result of these grills being permanently fitted?
Finally, in the paper, I have tried to look at the broader justification for the inland fisheries clauses in the Bill by looking at the evidence that fish stocks are declining. How urgent is it that legislation is passed at this time? It is well established that salmon and eel numbers overall have been in decline for at least four decades. In the paper, I have used figures produced by DCAL each year as part of its own fishery statistics for salmon and eels to try to look at what the latest evidence says about those fish stocks. I have looked at four kinds of figures, essentially.
First, I have looked at the percentage compliance of what are termed "conservation limits" for a number of salmon rivers. Every year, studies are conducted for a number of different rivers here to look at the quantities of salmon eggs put into the gravel at the base of rivers. If it is 100%, that is judged to be a sustainable level. If it is less than 100%, it has breached its conservation limit and is not sustainable. If it is greater than 100%, it is more than sustainable.
Secondly, I have looked at the numbers of wild salmon returning from the ocean to the River Bush each year. I have looked, thirdly, at the quantity of salmon fry measured each year, again, in the River Bush and, fourthly, at the number of new, naturally occurring eels that come from the sea to Lough Neagh each year. Since 1984, we have recruited glass eels from elsewhere to bring in to Lough Neagh, but I have looked specifically at the quantities of naturally occurring eels returning from the ocean to Lough Neagh.
From looking at those four sets of statistics, indications are that, in 2013 — that is the latest year for which figures are published — both salmon and eel saw an increase in stock numbers. For example, the numbers of wild salmon returning to the River Bush were well above the previous 10-year average, and salmon fry were more than double the previous 10-year average. While the overall trend for eel numbers arriving in Lough Neagh shows a significant decrease since the 1960s and 1970s, in 2013, there were 1·2 million eels naturally recruited into the lough, compared with just 600,000 in 2012 and 200,000 in 2010. However, it is important to say that salmon and eel numbers do vary year on year as a result of a whole variety of different natural factors: environmental conditions, oceanic conditions and so on. These figures might pose a more general question about whether it is necessarily urgent to legislate for the protection of fish stocks at this precise time.
Chair, that is the summary of the Bill paper; I have tried to pose some questions. I am happy to try to answer questions but, obviously, it is quite a technical Bill, so I might have to defer to departmental officials for some of those.