Scottish Government

1. SUMMARY

The Scottish Executive recognises that shellfish need clean healthy water in which to grow in order to ensure a good quality product which is safe for consumers to eat. The following legislation has been developed in order to protect the water quality of Scotland's shellfish growing areas.

One hundred and four waters in Scotland are currently designated ¹ as Shellfish Waters under the following Directions, which together with the Surface Waters (Shellfish) (Classification) (Scotland) Regulations 1997 ² and the Surface Waters (Shellfish)(Scotland) Directions 1997 transpose the EC Shellfish Waters Directive (79/923/EEC) into Scots Law:

Surface Waters (Shellfish) (Classification) (Scotland) Direction 1998 and the Surface Waters (Shellfish) (Classification) (Scotland) (Amendment) Direction 1998 (22 waters)

Surface Waters (Shellfish) (Classification) (Scotland) Direction 2000 (11 waters)

Surface Waters (Shellfish) (Classification) (Scotland) Direction 2002 (75 ³ waters)

This consultation paper proposes 10 additional sites for designation as new shellfish waters. It also proposes a new way of handling new designations in the future. In preparing these proposals for further designation of waters, the Scottish Executive has sought and received advice from the Scottish Environment Protection Agency (SEPA), Scottish Water, the Food Standards Agency (Scotland) and representations from shellfish growers. We now invite comment from all other interested parties.

This paper includes a consideration of the possible impact of these proposals on business, in the form of a draft Regulatory Impact Assessment. We also include a draft Regulatory Impact Assessment on changing the designation process for shellfish waters. These documents forms part of the consultation and the Scottish Executive welcomes views on

• the benefits and costs of designation, in particular the costs which may be borne by individuals and businesses and;
• the proposed designations.
• the proposed new way of handling designations in the future

2. INTRODUCTION

The Surface Waters (Shellfish)(Classification)(Scotland) Regulations 1997 and the associated Directions which have been issued to SEPA, set the standards which apply to Scottish shellfish waters in accordance with the Shellfish Waters Directive (79/923 EEC), which was adopted by the European Commission in 1979.

The aim of this legislation is to protect the water quality where shellfish are growing, and ultimately, to protect the health of shellfish consumers. The Directive aims at securing favourable conditions for shellfish farmers in all the European Union's Member states in a fair and equal manner, by providing protection for water quality and public health. Member states are required to designate appropriate waters within their territory and to put specific measures in place to maintain and improve the quality of these designated waters to specific standards, as detailed in the Directive.

The last designation round took place in 2002, and we are aware that since then, shellfish production in Scotland has increased, and the industry has continued to expand. Overall production of farmed shellfish in Scotland rose by 6.2 per cent in 2002, from 3,350 tonnes in 2001, to 3,558 tonnes in 2002. Mussel production in Shetland in particular, showed an increase of more than 50%, to from 822 tonnes in 2001 to 1,246 tonnes in 2002. There are also some new sites which are not in designated waters.

At present the Scottish Executive monitors where shellfish production takes place, then designates the sites, which leads to investment to improve water quality. Another way of handling this would be for the Executive, in conjunction with SEPA, to identify areas of water believed to already meet the standards in the SWD, and to designate those areas as being suitable waters. As well as being more cost-effective (costs to Scottish Water would be minimal or non-existent, although there could potentially be some monitoring costs for SEPA) this may also have the benefit of the regeneration and support of rural economies.

3. CONSULTATION INFORMATION

CONSULTATION ON FURTHER SHELLFISH WATER DESIGNATIONS UNDER THE SHELLFISH WATERS (CLASSIFICATION)(SCOTLAND) REGULATIONS 1997 (1997 NO.2470(S. 162))

Responding to this consultation paper

We are inviting written responses (along with the Respondee Information Form) to this consultation paper by Monday 17 January 2005. Earlier responses would be welcome.

Please send your response to:

Scottish Executive
Marine Team
Water Environment Division
Area 1-H Victoria Quay
Edinburgh
EH6 6QQ

Telephone: 0131 244 7844
Fax: 0131 244 0245
e-mail: waterenvironment@scotland.gsi.gov.uk

If you have any queries, contact Fiona Watt on 0131 244 7844.

We would be grateful if you could clearly indicate in your response which questions or parts of the consultation paper you are responding to, as this will aid our analysis of the responses received.

This consultation, and all other SE consultation exercises, can be viewed online at http://www.scotland.gov.uk/consultations. You can telephone Freephone 0800 77 1234 to find out where your nearest public internet access point is. Alternative formats or translations into community languages are available on request from the contact details above.

The Scottish Executive now has an email alert system for SE consultations ( SEconsult). This system allows stakeholder individuals and organisations to register and receive a weekly email containing details of all new SE consultations (including web links). SEconsult complements, but in no way replaces SE distribution lists, and is designed to allow stakeholders to keep up to date with all SE consultations activity, and therefore be alerted at the earliest opportunity to those of most interest. We would encourage you to register.

Access to consultation responses

We will make all responses available to the public in the Scottish Executive Library and on the Scottish Executive consultation web pages, by 14 February 2005, unless confidentiality is requested. All responses not marked confidential will be checked for any potentially defamatory material before being logged in the library or placed on the website.

4. WHICH WATERS ARE PROPOSED FOR DESIGNATION?

The Scottish Ministers have considered how to protect the shellfish industry, which is of considerable importance, particularly in remote areas. They have taken note of the Directive's purpose - which is "to contribute to the high quality of shellfish products directly edible by man", and have adopted a policy to designate sites where it has been identified that there is sustainable shellfish growing. The proposed new designated sites, drawn up on that basis, are listed below. The maps in Annex B illustrate the boundaries of these proposed waters.

1. Askinish Bay, Argyll and Bute: Area bounded by lines drawn from (NM) 176807, 709867 to (NM) 179253, 7101112 and from (NM) 177301, 707899 to (NM) 179030, 707903, and extending to MHWS. This designation supersedes existing SWD site at Shuna.

2. Basta Voe, Yell, Shetland: Area west of line drawn between (HU) 454887, 1194881 (Basta Ness) and (HU) 453684, 1193861 and extending to MHWS. This designation supersedes existing SWD site at Yell, Basta Voe.

3. Clift Sound, Shetland: Area bounded by a line drawn from the Taing (HU) 439111, 1134807 to (HU) 440068, 1134793, and a line from (HU) 438081, 1131274 to (HU) 439096, 1131197, extending to MHWS.

4. Dales Voe, Shetland: Area bounded by a line drawn from (HU) 445135, 1145980 to (HU) 445736, 1145589, extending to MHWS.

5. Dornoch Firth, Highland: Area bounded by a line drawn between (NH) 263621 888131 (Wester Fearn Point) to (NH) 263977, 888408, and a line drawn between (NH) 280809, 887394 (Dornoch Point) and (NH) 283669, 885717 (Rub na Innse Moire) and extending to MHWS. This designation supersedes existing SWD site at the Dornoch Firth.

6. Isle of Ulva, Mull (Loch Tuath), Argyll and Bute: Area east of a line drawn between (NM) 135093, 745725 and (NM) 135388, 742149, and extending to MHWS. This designation supersedes existing SWD site at Isle of Ulva, Mull.

7. Loch An Eisg-Brachaidh, Enard Bay Highland: Area bounded by a line drawn from (NC) 207044, 917744 to (NC) 207208, 917798, extending to MHWS.

8. Loch Crinan, Argyll and Bute: Area bounded by a line drawn between (NR) 178285, 696541 (Scodaig) and (NR) 177235, 694639 (Ardnoe Point), extending to MHWS. This designation supersedes existing SWD site at Loch Crinan.

9. Loch Eil, Highland: Area bounded by lines drawn between (NN) 200997, 778411 and (NN) 200994, 777318 and between (NN) 206992, 777564 and (NN) 207001, 776821, extending to MHWS.

10. Mid Yell Voe, Shetland: Area bounded by lines drawn between (HU) 450600, 1191932 to (HU) 450598, 1191749 and (HU) 451787, 1191947 to (HU) 451901, 119087, extending to MHWS.

Site boundaries have been drawn up to coincide with areas designated under the parallel Shellfish Hygiene Directive (Directive 91/492/EEC) wherever possible.

Comments are invited on whether each or any of these sites should be designated as Shellfish Waters. It would be particularly helpful if comments were backed up by supporting documentation to allow assessment or validation. However, opinions and suggestions without supporting documentation will also be considered.

It may be possible that, as the industry is expanding rapidly, sites currently producing may have been omitted from this list. However, if the farmers of sites other than those given above can demonstrate that they have sustained production on their site, any such sites missing from this list may be considered for designation, during this tranche, or in the future. If a site which is currently in production is not designated, this does not mean that shellfish cannot be harvested from this site - it may just be that the site has not demonstrated the level of production required for designation.

Landward boundaries

The boundaries of all the proposed new waters will extend to Mean High Water Spring (MHWS). We are also proposing to realign the boundaries of the existing waters to MHWS so that the landward boundaries of all SWD waters will be consistent. It should also be noted that the National Grid references (NGRs) in this document have been given using 12 or 13 digits. This enables us to plot the boundaries with greater accuracy. We also propose to transpose the 6 digit NGRs of existing sites into 12 or 13 digits, and a Direction detailing these changes will be issued in due course.

5. WHAT METHODS WERE USED TO IDENTIFY PROPOSED WATERS FOR DESIGNATION?

In order to identify proposed waters for designation under the Shellfish Waters Directive, we analysed data from several sources. We looked at lease data which is supplied by the Crown Estate Office, ( www.crownestate.co.uk) as this tells us where new production may be taking place. We also looked at data supplied by Fisheries Research Services ( www.marlab.ac.uk) on production by site, compiled from returns provided by registered shellfish farming operations. Returns for the past four years 2000 - 2003 were used for the purpose of this consultation - a run of years is considered because we know that some species are slow growing and take time to reach harvesting size, and because the practice of fallowing may introduce gaps in production.

Examination of this data from the past four years has enabled us to compile a list of sites at which we believe sustainable production is taking place. Finally, the Food Standards Agency (Scotland) ( www.foodstandards.gov.uk) provided us with information on Shellfish Hygiene Directive waters. Where possible, the boundaries of the proposed new sites have been matched with the relevant existing Shellfish Hygiene Directive designations.

6. FINANCIAL CONSEQUENCES OF DESIGNATION

The Scottish Executive understands that some of the costs associated with the proposed new designations will fall to SEPA in respect of its monitoring and sampling regime, and for investigative studies to draw up action programmes where required. The major cost will fall to Scottish Water and then to their customers through their charging scheme - local dischargers, industries, or residents with private sewage disposal systems, if these are made to a designated shellfish water. In addition, diffuse sources of pollution such as run-off from roads and other developments and agricultural land may affect the water quality at some of the sites and may have to be controlled within existing or future legislative instruments.

In relation to the costs for Scottish Water, in some cases, measures planned to meet EU environmental standards, based on other legislation, such as the Urban Waste Water Treatment Directive or the Bathing Waters Directive, may leave little or no requirement for extra expenditure to meet the Shellfish Water Directive's standards. However, in other cases, additional capital works may be needed to improve the standards of collecting systems and limit intermittent discharges from Combined Sewer Overflows (CSOs) in particular. In other cases, improvements or alternatives to local septic tanks may be needed (such as soakaway treatment systems). Significant costs are associated with the designation of two of the proposed sites - Loch Eil (2.2m) and Mid Yell Voe (13.4m). That said, it should be borne in mind that the quality of the proposed waters is generally already high.

The draft Regulatory Impact Assessment in Annex A.1 describes in general the financial consequences of designation. The Scottish Executive would be particularly grateful for any specific or additional information from consultees.

7. FUTURE DESIGNATIONS

We would also like to have your views on how we should make designations under the SWD in the future. We think it would be possible for the Scottish Executive and SEPA to work together to identify areas where the water quality is already suitable for growing shellfish. Adopting this approach would have the effect of good water quality becoming the driver of the new designations, rather than designations being driven solely by shellfish production. We also propose to work more closely with SEPA and the FSA(S) to review our designation process, to ensure that future designations made under both the SWD and the SHD complement each other and reflect the expansion and activity of the shellfish industry as accurately as possible.

The draft Regulatory Impact Assessment at Annex A2 describes the proposed new approach to designating shellfish waters. The Scottish Executive would be particularly grateful for any specific or additional information from consultees.

8. WHAT WE WOULD LIKE TO KNOW

Comments are particularly sought on the following matters:

• The appropriateness of the proposed shellfish waters, including comments on the boundaries outlined in the maps at Annex B.
• Financial benefits or costs of the proposed designations to local communities and industries. This will be used to inform the draft Regulatory Impact Assessment document at Annex A.1 of this paper.
• Our proposals to change the way in which future designations are made. This will be used to inform the draft Regulatory Impact Assessment document at Annex A.2 of this paper.

We would be grateful if you could clearly indicate in your response which questions or parts of the consultation paper you are responding to, as this will aid our analysis of the responses received.

10. THE SCOTTISH EXECUTIVE CONSULTATION PROCESS

Consultation is an essential and important aspect of Scottish Executive working methods. Given the wide-ranging areas of work of the Scottish Executive, there are many varied types of consultation. However, in general Scottish Executive consultation exercises aim to provide opportunities for all those who wish to express their opinions on a proposed area of work to do so in ways which will inform and enhance that work.

While details of particular circumstances described in a response to a consultation exercise may usefully inform the policy process, consultation exercises cannot address individual concerns and comments, which should be directed to the relevant public body. Consultation exercises may involve seeking views in a number of different ways, such as public meetings, focus groups or questionnaire exercises.

Typically, Scottish Executive consultations involve a written paper inviting answers to specific questions or more general views about the material presented. Written papers are distributed to organisations and individuals with an interest in the area of consultation, and they are also placed on the Scottish Executive web site enabling a wider audience to access the paper and submit their responses. Copies of all the responses received to consultation exercises (except those where the individual or organisation requested confidentiality) are placed in the Scottish Executive library at Saughton House, Edinburgh (K Spur, Saughton House, Broomhouse Drive, Edinburgh, EH11 3XD, telephone 0131 244 4552).

The views and suggestions detailed in consultation responses are analysed and used as part of the decision making process. Depending on the nature of the consultation exercise the responses received may:

If you have any comment about how this consultation exercise has been conducted, please send them to the address given for sending responses.

11. NEXT STEPS

In the light of the results of this consultation, the Scottish Executive will issue a Direction to SEPA which details any additional waters that are to be considered as the additional shellfish waters. The Direction will give legal effect to the designations. A copy of the finalised Direction will be sent to all parties who respond to this consultation paper.

We also propose to work more closely with SEPA and the FSA(S) to review our designation process, to ensure that future designations made under both the SWD and the SHD complement each other and reflect the expansion and activity of the shellfish industry as accurately as possible.

Scottish Executive Environment Group

October 2004

Footnotes

¹ For the purposes of this consultation, the term designation is used to describe the process of classification of Shellfish Waters, this process being undertaken to meet the requirements of the EC Shellfish Waters Directive.

² S. I. 1997 /2740

³ The Designation made by this Direction for Loch Roag covers four smaller Designated Shellfish Waters in this loch which were previously designated in 1998.