Scottish Government

Part II: FRESHWATER FISHERIES

Chapter Eight: Gyrodactylus salaris

Introduction

55.Gyrodactylus salaris ( GS) is an external parasite which affects the skin, gills and fins of salmonids in freshwater. It kills salmon and other species can act as carriers. It is exotic to Great Britain, but its introduction would undeniably have devastating consequences for our wild stocks. It has been recorded in many parts of the European Union and is widespread in Scandinavia. GS was accidentally introduced into Norway in 1975 and has since wiped out wild salmon stocks in more than 40 rivers there. The Norwegians have had an eradication programme in place since the early 1980s. Where eradication has been attempted, this has been successful in the majority of cases.

56. In order to prepare for the possibility that GS is introduced into Scotland, the Executive has recently set up a GS Task Force to research the risks involved, recommend on preventative measures and to draw up contingency plans for action.

Current powers

57.GS is a notifiable disease under Section 4 of the Diseases of Fish Act 1937. Under the provisions of the Act the Scottish Ministers have the power to:

• inspect fish farms and other waters and to take samples;
• impose movement restrictions on fish, their viscera, eggs and food, to and from and within farms and waters which are infected or suspected of being infected;
• require the disposal of dead or dying stock and direct the manner of their disposal;
• grant authority for the removal of fish in infected waters for the purpose of controlling the spread of GS.

58. There are also 'Additional Guarantees' under Commission Decision 2004/435/ EC ( www.scotland.gov.uk/Topics/Fisheries/afBill/comdec43SEC ) which prevent the importation of live salmonids from areas infected by GS. It is unlikely that these could be developed further.

59. The risk is Scotland's exposure should GS be detected here. The Executive believes the powers outlined above should be sufficient to be able to controlGS were it to arrive. However, the economic and biodiversity consequences of GS taking hold in Scotland are potentially extremely serious, so it is important that the Scottish Ministers have the option of attempting eradication.

Proposals for regulation to enable GS to be eradicated

60. To be able to attempt eradication, the Executive is proposing a series of additional powers which could themselves have serious and far-reaching consequences, both for the wider natural heritage and water user interests. Were there to be an outbreak of GS, the Scottish Ministers would require to consider whether eradication was the most appropriate option in that particular case; taking into account the scale of the problem, the level of risk, the economic and health aspects and their responsibilities under domestic and European legislation, including the Wildlife and Countryside Act, the EC Habitats and Birds Directives, the Dangerous Substances Directive, the Biocides Directive, the EC Directive on Water Quality and the Water Framework Directive. Depending on the size and use of the infected waters, the Scottish Ministers could decide that the eradication option was inappropriate and limit efforts only to controlling the spread of infection using existing powers.

Question 25:
Should the Bill include enabling powers to eradicate GSwhere the circumstances are appropriate?

To authorise and undertake treatment of infected waters and direct removal of stock

61. The only known ways of eradicating GS are by the addition of chemicals, either Rotenone or aluminium sulphate, to the water system. Both kill the parasite and other invertebrates, but Rotenone also kills the fish. The Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003 ( www.scotland.gov.uk/Topics/Fisheries/afBill/con2003 ) gives the Scottish Ministers powers in respect of salmon fisheries to exempt chemical treatments and the removal of dead and moribund stock from being an offence. If eradication is to be attempted these provisions may need to be extended to allow for treatment which would otherwise be unlawful under the Controlled Activities Regulations.

62. It is generally accepted that treatment would be beyond the remit of District Salmon Fishery Boards and riparian owners. The Scottish Executive therefore proposes an enabling power for the Scottish Ministers to put in place measures to permit the Scottish Ministers or their agents to apply chemical treatments with the aim of eradicating GS and to authorise, direct and if need be remove dead and moribund stock.

63. In respect of freshwater farms, Ministers should have power to authorise, direct and if need be undertake chemical treatments and removal of dead and moribund stock.

64. These powers would apply to all inland waters, e.g. rivers, lochs, farms and 'put and take' fisheries in catchments where the presence of GS is confirmed.

Question 26:
Should the Scottish Ministers have the power to apply chemical treatments to watercourses for the purpose of eradicating GS?

Question 27:
Should the Scottish Ministers have the power to apply chemical treatments to freshwater farms for the purpose of eradicating GS?

Question 28:
Should the Scottish Ministers have the power to authorise the removal of dead and moribund fish from watercourses for the purpose of eradicating GS?

Question 29:
Should the Scottish Ministers have the power to remove dead and moribund fish from freshwater farms for the purpose of eradicating GS?

Standstill notice

65. The Executive proposes a power enabling the Scottish Ministers to place a standstill notice on all farms and waters - including adjacent catchment areas - preventing the movement of live fish and eggs until the extent of an outbreak had been determined. This will be more extensive than the standstill notice referred to in paragraph 53 in that as well as covering diseased areas it would permit action where there was no evidence for the presence of the disease but where it was thought prudent to apply a precautionary approach in view of the potentially very serious consequences of spread.

Question 30:
Do you agree with the proposal for the Scottish Ministers to impose standstill notices?

To authorise the erection of barriers

66. Part of the Norwegian eradication programme which the Executive considers useful, is the erection of barriers across infected rivers at certain points. The barrier allows water flow but prevents upstream migration of salmonid fish. Below the barrier, the river is treated; above the barrier, the parasite is progressively denied a host as fish migrate down the river resulting in the river becoming disease free without the need to poison all of it.

67. It is proposed that the Scottish Ministers have powers to authorise the erection of such barriers and, if required, to authorise the closure of fish passes. This would take cognisance of relevant regulatory regimes including the land use planning system and the Water Framework Directive as well as provisions in the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003 that prohibit the obstruction of the passage of fish. The Scottish Ministers would be responsible for undertaking the work which they would subcontract to relevant bodies.

Question 31:
Do you agree with the powers to erect barriers and close fish passes?

Powers of access

68. The work of treating waters with chemicals, removing fish and erecting barriers will require access to land adjacent to the waters edge. In the vast majority of cases, it is expected that such access will be granted voluntarily by riparian owners. However, to cover any cases where a landowner may wish to restrict access, the Scottish Ministers and their agents will have powers of responsible access to erect barriers.

Question 32:
Should Scottish Ministers and their agents have powers of compulsory access?

Freshwater fish farms

69.GS can reproduce on other species of fish. If these species are farmed in water systems upstream of a barrier, then it would be necessary to clear such farms of fish in order to deny the parasite a host. The Executive proposes that the Scottish Ministers be provided with powers to do this.

Question 33:
Do you agree with the power to require clearance of fish farms in these circumstances?

Disinfection of equipment

70. The GS parasite can survive off its host for a number of days and can be unintentionally transmitted on equipment such as fishing tackle and canoes that come into Scotland from countries affected by GS. Disinfection of imported gear is therefore an important weapon in prevention, to protect Scotland from accidental introduction of the parasite.

71. Some countries, such as Iceland and New Zealand, have disinfection points at ports of entry. The Executive proposes that the Bill include powers to set up such a scheme for the mandatory disinfection of recreational equipment at ports of entry in Scotland with a view to preventing the introduction of GS.

Question 34:
Should powers for mandatory disinfection of recreational gear be introduced?

Chapter Nine: Amendments to Rules on Access

Introduction

72. Healthy fisheries need healthy fish populations. Conservation and exploitation are interdependent and there is a balance to be struck between fishing effort and protection of the resource. The Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003, makes provision for the establishment of protection orders. Under the existing system proposals may be submitted by either riparian owners or occupiers (tenants who by virtue of a lease have fishing rights for freshwater fish) for protection orders covering catchment areas or parts thereof (lochs or systems of lochs and/or rivers). Where a protection order is in force, it is a criminal offence to fish without legal right or written permission from a person having such right. Thus, the effect of a protection order is that in the specified area, fishing without permission is a criminal offence rather than a civil wrong.

73. Applicants seeking a protection order must demonstrate to the Scottish Ministers that they intend to increase permitted fishing in these areas, without compromising the conservation status of the fish present, and must provide details of their proposals for conservation of fish and management of fisheries. Applicants are currently also required by the Executive to set up a Liaison Committee, which is responsible for the
co-ordination, implementation and monitoring of the operation of the Protection order.

74. The system of protection orders has encountered considerable criticism from some quarters over the years and this was repeated by many of those who responded to the Executive's consultation paper Protecting and Promoting Scotland's freshwater fish and fisheries in 2000 ( www.scotland.gov.uk/Topics/Fisheries/atBill/promfish ). There is a perception that protection orders have failed in parts of Scotland in their primary objective of guaranteeing increases in angling access as the legislation had intended, largely because voluntary monitoring mechanisms have proved inadequate. Angling access to some stretches of water at the inception of an order has occasionally been reduced over time. Problems have also arisen when new owners of freshwater fishing rights have been unaware of the protection order obligations that accompany those rights. Permit availability has been poorly advertised in some catchments and the delivery of permits in certain areas has been problematic.

75. Over the past year, the Freshwater Fisheries Forum has been looking at the conservation, management and exploitation of stocks, with Partnership Agreement No. 345 (improving access to fisheries) very much in mind and has considered proposals/changes that would require primary legislation. In Scotland's freshwater fish and fisheries: Securing their future ( www.scotland.gov.uk/Topics/Fisheries/atBill/fishfuture ), the Executive proposed reviewing Protection orders with a view to repealing the Freshwater and Salmon Fisheries (Scotland) Act 1976 (now provisions contained principally in sections 48-51 and 66 of the Salmon & Freshwater Fisheries (Consolidation) (Scotland) Act 2003).

76. It has become clear from many stakeholders through the work of the Forum that until a replacement management structure is in place, it may be premature to radically alter the provisions relating to protection orders. It was also the view of the Forum that protection orders offered some benefits that could usefully be retained under a future management regime. They Forum did, however, recognise a number of shortcomings with the protection orders system which could be addressed by legal or administrative means and these are set out below. The Executive will consider all the options for protection orders, including repeal.

Mandatory liaison committees

77. As mentioned above, the Executive currently requires applicants to set up a Liaison Committee, which is responsible for the co-ordination, implementation and monitoring of the operation of the protection order. This is currently only an administrative measure and the duties undertaken by the liaison committee will in future be taken by any future management body that is developed. However, it will require a legislative slot beyond the present one to bring a new management regime into being, so the Executive proposes to make Liaison Committees mandatory if this can be achieved practicably.

Question 35:
Do you agree with the proposal to make Liaison Committees mandatory?

Abolition of requirement to advertise in the Edinburgh Gazette

78. The application process has been identified by stakeholders as costly, cumbersome, and not transparent with respect to the work of the Consultative Committee (an administrative measure established by the Executive to deal with protection order applications). Section 48(9) of the 2003 Act provides that subject to sections 48(7) and 48(8) and Schedule 3 of the 2003 Act has effect as to the procedure in the making, variation and revocation of protection orders. Paragraph 2 of Schedule 3 requires applicants to give notice of the proposals in the Edinburgh Gazette. There is clearly a need to ensure that the public are made aware of any application, and what the general effect would be if the proposals were adopted, but whether there is a need for applicants to give notice in the Edinburgh Gazette is less clear. The Executive proposes that the 2003 Act be amended so that protection order applications are not required to be advertised in the Edinburgh Gazette.

Question 36:
Do you agree with the proposal to remove the requirement to advertise in the Edinburgh Gazette?

Question 37:
How else should protection orders be publicised, beyond the requirement set out in the 2003 Act that the applicant give notice in such other newspapers as the Scottish Ministers direct?

Excluding fisheries from the application of a protection order

79. The 2003 Act makes provision for protection orders covering catchment areas or parts thereof (lochs or systems of lochs and/or rivers). To date, when a protection order has been made, it has covered an entire area, irrespective of whether all the riparian owners within that area want to be involved and have agreed to provide increased access. The aim is to make it clear that a protection order can exclude certain fisheries within a catchment or part thereof.

Question 38:
Do you agree with the proposal that protection orders need not cover contiguous fisheries?

Removing fisheries from the prescribed area in a protection order for non-compliance

80. When a fishery or fisheries within a protection order area fail to comply with the requirements on making fishing available, or desire to withdraw from the protection order, it is arguable that unless an application is made to Scottish Ministers to vary the existing order by those eligible to apply for a protection order, the only remedy available under the current provisions is that the order may be revoked, removing the system from the whole prescribed area, even if it is working well elsewhere in the area.

81. To put the situation beyond doubt, the proposals are that the Scottish Ministers be given a power to vary a protection order (without a third party needing to apply for a variation) to remove fisheries. The Bill would also include provisions for the clear advertisement of areas that had been removed from the system so that owners, wardens and, most importantly, anglers, know where the protection order system applies.

Question 39:
Do you agree?

Make existence of a protection order known to property buyers where property changes hands

82. There have been reports that some landowners/riparian owners have bought property, stopped access to fishing and then claimed that they did know there was a protection order affecting the land they had bought. The Executive intends to explore how prospective buyers could be alerted to the existence of a protection order when buying property with fishing rights, whether it be private housing, commercial property or land.

Question 40:
How should buyers find out/be told that protection orders affect their property and be alerted to what their responsibilities are?

Chapter Ten: Fish Movements - Wild Fish

Introduction

83. There is a recognition amongst stakeholders that it is important to bring in controls over movements of fish into inland waters and watercourses. The unrestricted introduction of fish into inland waters may have a number of effects:

• introduced fish may carry diseases or parasites, and even the water in which they are transported may carry unwanted passengers which may be introduced if the water is emptied into the receiving pond, loch or river;
• certain fish species may establish self-sustaining breeding populations in waters that have no history of supporting them, with the reduction in good ecological status that follows;
• even if the fish do not establish breeding populations, they may compete with native fish for food, space and may predate on the native fish, their fry or their eggs; and
• even where the fish to be introduced are members of a species already present in the receiving water, they may be genetically distinct. Any breeding with the native fish may have deleterious effects on the genetic integrity of local stock.

Proposals for a Regulatory Framework

84. In parallel with the proposal to prohibit the use of live fish (and other vertebrates) as bait in fishing (paragraph 92), the Executive also proposes to regulate what fish may be put into inland waters. There is general agreement that Section 30 of the Salmon and Freshwater Fisheries Act 1975, applicable in England and Wales, provides a helpful model for regulation of fish movements into inland waters. This states that:

'a person shall be guilty of an offence if he introduces any fish or spawn of fish into an inland water, or has in his possession any fish or spawn of fish intending to introduce it into an inland water, unless he first obtains the written consent of the Environment Agency or the inland water is one which consists exclusively of, or of part of, a fish farm and which, if it discharges into another inland water, does so only through a conduit constructed or adapted for the purpose'.

85. The Environment Agency has a limited remit in Scotland which is restricted to that part of the Border Esk river catchment area which is in Scotland and only in relation to the fisheries issues set out in the Scotland Act 1998 (Border Rivers) Order 1999. The Executive's proposals for the regulation of fish movements will therefore only apply in the rest of Scotland.

86. The Executive proposes a similar 'section 30' power, namely to prohibit the keeping of, the transportation of and the introduction into any inland water (unless it is a fish farm) of, live fish or spawn of fish, without the authority of the Regulator. In addition, it would be an offence to be found in possession of fish or spawn in circumstances which afford reasonable ground for suspecting that a person intends to introduce them into inland waters.

87. Movements between freshwater fish farms would be exempted. Movements from a fish farm to any other inland water, for example a put and take fishery would be regulated. However, such movements could be regulated by blanket consents from the Regulator. The Executive may also consider enforcement powers for river bailiffs.

88. These proposals do not apply to ornamental fish kept indoors or in a garden pond.

Question 41:
Should the Bill make provision to regulate the movement of fish into inland waters?

Chapter Eleven: Miscellaneous Amendments to Freshwater Fisheries

Introduction

89. As part of the Freshwater Fisheries Forum's work, it gave consideration to possible amendments that could be made to existing freshwater fisheries legislation, with a view to clarifying the law on certain aspects of fishing. The majority of these changes have been broadly agreed by the Forum. Some further proposals which may improve on the existing provisions are also included.

Definition of Fishing by Rod and Line

90. The Executive's Green Paper, Scotland's Freshwater Fish and Fisheries: Securing their Future acknowledged that current provisions appear to prohibit the use of more than one rod, and the setting of rods on rod rests. The Executive believes this has the effect of making the following customary methods unlawful:

• Coarse Fishing - Common practices include 'ledgering', where a bait or baits are fished using a weighted set of lines, the rod being set on a rod rest and often involves the use of more than one rod;
• Harling - Involves the use of rod and line from a boat by trolling, where baits and lures are trailed behind the boat. This includes trolling for 'ferox' trout.

Proposals for regulation

91. In order to remove any doubt, and ensure that anglers are able to enjoy their sport in a lawful manner, the Executive proposes that the definition of fishing by rod and line be amended as follows:

• Coarse fishing - when fishing for non-salmonid fish, no angler should be able to use more than four rods and associated rod rests. Although the angler need not retain the rods in his hands, the angler must remain in attendance and be able to retrieve the rod as soon as practicable should a fish take the bait or lure attached to the line associated with any rod;
• Harling - when trolling from a boat for salmon or 'ferox' trout, an angler should be able to use a maximum of two rods, which may be held in position in the boat by appropriate rod rests. The angler should be able to retrieve a rod as soon as practicable should a fish take the bait or lure attached to the line associated with any rod.

Question 42:
Do you agree with the proposals to permit the use of rod rests?

Question 43:
Are the limits on the number of rods correct?

Use of live vertebrates as bait

92. There is no restriction in law on the use of live fish or other vertebrates, such as frogs, as bait when angling for all types of fish, except where provisions have been made to prohibit the use of certain baits and lures for salmon fishing in sections 33 and 38(5)b of the 2003 Act. The use of live vertebrates as bait has in some cases resulted in the transfer of live fish to water bodies leading to an increased risk of disease and parasites to existing stocks. Live vertebrates can also impact on the biodiversity of water bodies through competition, predation and in some cases pose a threat to important populations of native species. This was acknowledged by the Green paper, Scotland's Freshwater Fish and Fisheries: Securing their Future (2001). Loch Lomond is often used to illustrate the lack of controls on the use of live vertebrates as bait. The loch now supports a number of fish species that were not present in the native fish fauna as little as twenty years ago. One of these species, the ruffe is now the single most numerous fish in the loch and is thought to pose a major threat to the powan, an internationally important fish species, listed in Annex 5 of the Habitats Directive.

Proposals for regulation

93. Given these biodiversity and health risks associated through the use of live vertebrates as bait, the Executive proposes a complete ban on their use, as recommended by the Green Paper.

Question 44:
Do you agree with the ban on live vertebrates as bait?

Use of gaffs, tailers, pike gags and landing nets

94. The use of gaffs, tailers, landing nets and pike gags compromise the health and welfare of freshwater fish.

• Gaffs - a gaff is a large, barbless hook attached to a handle, sometimes telescopic, which can be used to hook a fish through the muscle, head or abdomen in order to bring it ashore.
• Tailer - a tailer is a length of multi-stranded wire (usually) attached to a handle, often telescopic, with a small hoop fixed to the free end of the wire. The hoop can be drawn up the wire and fixed to a latch on the handle near where the wire is attached. When the hoop is fixed and a large loop is formed in the wire, it may be passed over the tail of a salmon. A trigger on the handle allows the hoop to be released so that the hoop travels down the wire forming a small loop around the body of the fish just in front of the tail. The fish may then be lifted ashore by its tail.
• Pike Gag - a pike gag is a device used to hold a pike's mouth open after capture so that the hook can be removed. The device has a pair of jaws that may be held closed by hand, but when released is held open by a very strong spring. The action of the gag in forcing the mouth of a pike open may cause severe injury, including broken or dislocated jaws, especially in smaller pike.

The use of these devices can cause serious injury to the fish being landed, and is incompatible with the adoption of catch and release.

• Landing nets - landing nets and keep nets where the material used is made up of traditional knotted mesh net can cause injury to fish enclosed within it. Knotless netting is widely available and widely used.

Proposals for regulation

95. The Executive proposes to prohibit the use of tailers, gaffs, pike gags and landing nets with knotted mesh.

Question 45:
Do you agree with the proposals to prohibit the use of tailers, gaffs, pike gags and landing nets with knotted nets?

Foul-hooking

96. Section 4 of the 2003 Act defines rod and line fishing as meaning 'single rod and line (used otherwise than as a set line or by way of pointing, or by striking or dragging for fish)…' but there are still arguments about what constitutes pointing, striking and dragging. It would be much clearer to anglers, enforcement officers and the courts if the law clearly defined and prohibited foul-hooking. A suggested definition could be: ' foul hooking means any method of deliberately hooking or attempting to hook a fish other than by inducing the fish to take the hook in its mouth'. The Executive proposes that 2003 Act will be amended to clearly prohibit foul-hooking. Any fish caught other than by the mouth should be released as quickly as possible and with the least amount of injury.

Question 46:
Do you agree that foul-hooking should be clearly prohibited in law?

Close times

97. Weekly and annual close times in respect of fishing for salmon are provided for in sections 13-16 of the 2003 Act. An annual close time for fishing for brown trout is provided for in section 17 of the 2003 Act. It is an offence to fish for or take fish during the specified close time. No close times are provided for in respect of fishing for any other species of freshwater fish. The current lack of provision of close times for the majority of freshwater species means that over exploitation of stocks could become a real possibility.

Proposals for regulation

98. Provision should be made so that allows the Scottish Ministers to make Orders defining annual and weekly close times for freshwater species either upon application to them or of their own accord to allow for the temporary closure of specific fisheries to allow for protection of fish during spawning or other vulnerable periods, but only after appropriate consultation.

Question 47:
Do you agree with the proposals to make provision empowering the Scottish Ministers to make orders specifying annual or weekly close times for freshwater fish?

Prohibit eradication of fish, or adversely affecting their environment

99. There has been concern expressed, particularly by coarse anglers, of the unnecessary and inappropriate killing of some fish, notably, pike. Pike are a top predator and some fishery owners and anglers have attempted to eradicate pike from water bodies with the aim of protecting other fish species. Attempts to manipulate the local ecosystem can be misguided and can have unplanned consequences. The Executive therefore proposes a power to regulate this activity.

Question 48:
Do you agree with this approach?

Prohibit obstruction of fish

100. It is an offence to knowingly obstruct the passage of salmon to their spawning beds/
grounds during the annual close time (section 23(3) of the 2003 Act). However, salmon ascend rivers throughout the year. Other fish also move through rivers and their movements should not be obstructed unnecessarily either. It should be a clearly stated principle that fish should not be deliberately obstructed by physical obstructions at any time. The Executive therefore proposes making it an offence at any time of year to deliberately set in place any device or structure that will obstruct the free passage upstream or downstream of salmon and other freshwater fish.

Question 49:
Do you agree that the current law prohibiting the obstruction of salmon during their spawning runs should be extended as described?

Proposals for regulation

101. The Executive proposes to widen the current rules covering the passage of salmon to cover all species of freshwater fish at all times of year.

Question 50:
Should the Executive widen the existing passage of salmon rules to cover all freshwater fish at all times of year?

Extension of the definition of freshwater fish

102. Unlike the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003 the Import of Live Fish (Scotland) Act 1978 includes crustaceans in the definition of 'fish'. Such wider definition would be helpful when measures are required to control invertebrates such as North American Signal Crayfish which is a growing problem in Scottish rivers.

Proposals for regulation

103. The intention is to amend the 2003 Act so that the definition of freshwater fish includes freshwater crustaceans so that adequate controls can be implemented.

Question 51:
Do you agree with the extension of the definition of fish?