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CHAPTER 3 - ANALYSIS OF PART II: FRESHWATER FISHERIES

3.1 Gyrodactylus salaris ( GS)

3.11 Enabling powers for GS

To be able to attempt eradication, the Executive is proposing a series of additional powers that 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?

Table 3.1 shows the breakdown of responses to Question 25 for each of the main stakeholder groups.

Table 3.1 Views on enabling powers to eradicate GS

Note: The overall response rate for this question was 44%.

There was agreement from all respondents that the Bill should include enabling powers to eradicate GS, with some respondents emphasising the need for enabling powers, as one angling association said: "This power is essential and should be seen as a matter of primary priority".

A substantial majority of respondents did not offer any reasons for stating 'yes' to the question.

A minority qualified their support for enabling powers. Almost half the public bodies stressed the need to take into account the impact on habitats, species and the local economy. Others, whilst supportive of the proposal stressed the need to focus efforts on prevention with the "focus being on education". A few respondents, including a few angling associations and one consultant went further and suggested that "imports of all live fish species from abroad…be prohibited". Some District Salmon Fishery Boards, Angling Associations and individuals stressed the need for adequate planning and consultation in advance of the introduction of any measures to eradicate GS.

3.12 Powers to apply treatments

The only known way of eradicating GS is 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 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.

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.

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.

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?

Table 3.2 shows the breakdown of responses to Question 26 for each of the main stakeholder groups.

Table 3.2 Views on powers to apply treatments

Note: The overall response rate for this question was 70%.

Respondents were of the overwhelming view that Scottish Ministers should have the power to apply chemical treatments to watercourses to eradicate GS.

A majority of respondents did not offer any reasons for stating yes to the question. It was clear that even though respondents agreed with the proposal there was a high degree of consensus across the stakeholder groups that chemical treatment should only be applied when and where it is appropriate to do so and only after full consultation with stakeholders. Some views were also expressed about the scale of any treatment, one non-governmental organisation suggested that treatment be restricted to " small, local and relatively contained situations" whilst one university stated that:

" In many situations in Scotland ( e.g. large lochs, extensive catchments, the largest rivers) treatment might well be futile, prohibitively expensive and extremely damaging to biodiversity. Such treatments have failed several times in Norway. Only in small, local and relatively contained situations should full chemical treatment be contemplated."

As with Question 25, respondents indicated that when considering any treatment the authorities should take full account of the potential impacts upon the environment and economy. Some respondents including a few angling associations and two local authorities suggested that compensation be explored for those fisheries affected by any eradication programme.

Of those respondents that objected to the proposal, a substantial number expressed concern about the impact that any chemical treatment would have on the environment, particularly upon other fish species and invertebrates. Other respondents objected as they were concerned about the effects of any treatment on the public water supply. One non-fisheries business stressed the need for the Executive, when eradicating GS, to strike a balance between the demands of fisheries and other sectors, such as whisky producers.

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

Table 3.3 shows the breakdown of responses to Question 27 for each of the main stakeholder groups.

Table 3.3 Views on treatments to freshwater fish farms

Note: The overall response rate for this question was 68%.

83% of respondents agreed that Scottish Ministers should have the powers to apply chemical treatments to freshwater fish farms.

As with those that responded to Question 26, a majority of respondents chose not to offer any reasons for stating yes to the question. Others qualified their responses along similar lines to those responses to question 26, making comments on the need for consultation, and impact on the environment. A few respondents indicated that any treatment on a fish farm should be contained and thus limit contamination of the watercourse.

A few respondents felt they were not qualified to respond. A few respondents, including one consultant and one university expressed doubt as to the legality of such action.

Some respondents stated that compensation should be made available for fish farms, as one fish farm body put it,

"There must be a provision for compensating fish farm operators in the event of such treatments."

Others suggested that fish farmers should have insurance to cover losses due to treatment.

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?

Table 3.4 shows the breakdown of responses to Question 28 for each of the main stakeholder groups.

Table 3.4 Views on the removal of dead and moribund fish from watercourses

Note: The overall response rate for this question was 66%.

87% of respondents answered 'yes' to the question posed. Some respondents strongly advocated the proposal, one local authority stated:

"This makes sense given the known problems associated with leaving dead and moribund fish in situ, and the threat posed to healthy populations."

A few respondents whilst welcoming the proposal did make a number of suggestions. One respondent raised concerns about the impact that a huge volume of dead fish could have on water supplies. Two public bodies suggested that these powers may already be covered by existing legislation and so are not required. Some respondents stressed the need for consultation with bodies such as SEPA and District Salmon Fishery Boards.

A small number of respondents suggested that any costs associated by the recovery of dead and moribund fish be absorbed by Scottish Ministers, one non-fisheries business stated:

"[We] expect the Executive to meet associated costs of additional safe disposal and cleaning on private property to meet its waste duty of care responsibilities."

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

Table 3.5 shows the breakdown of responses to Question 29 for each of the main stakeholder groups.

Table 3.5 Views on the removal of dead and moribund fish from freshwater farms

Note: The overall response rate for this question was 67%.

91% of respondents answered 'yes' to question 29.

In the main, comments made by respondents regarding the removal of dead or moribund fish from freshwater farms matched those given in response to question 28. A number of fish farm bodies felt unable to comment fully on the proposals for GS as there was not enough detail in the consultation. However they cautiously approved the proposals with the caveat that:

"Where such action [eradication] is deemed necessary, compensation should be paid in full to the freshwater fish farmer and to any seawater fish farmer who would have ongrown the fish at sea, if he/she is unable to secure an alternative supply of fish as a result."

3.13 Standstill Notices

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?

Table 3.6 shows the breakdown of responses to Question 30 for each of the main stakeholder groups.

Table 3.6 Views on proposals to impose standstill notices

Note: The overall response rate for this question was 68%.

96% of respondents agreed with the proposals. A number of respondents questioned whether standstill notices should only apply to freshwater fish farms. Many of these respondents felt that the activities of anglers and other recreational water users should also be 'controlled'. One public body also noted that:

"Full disease control and eradication may in some cases not be possible without severe restrictions on private, industrial and public uses of water ( e.g. access for and conduct of recreation in or near water; water abstraction and transfer for hydropower generation or public, industrial or private water supply)."

One non-fisheries business, whilst agreeing with the proposal expressed concerns about the impact on generation, stated that:

"… these must not impact upon the ability of power generators to generate electricity. If power generation were also to be halted guarantees of financial compensation for resulting lost revenue would have to be agreed with affected businesses beforehand. Compensation for the loss of power generation at our sites would need to cover lost revenue on forgone generation ( MWh) and recognise lost services that would have otherwise been provided to the National Grid/Transco."

Other respondents also welcomed the proposals but suggested that any standstill notice should: not be extend beyond the infected area; be time bound; and be subject to review and public consultation. All fish farms supported the proposal. One fish farm stressed the need to allow dead harvest ready fish to go to processors with that caveat that the " processor can demonstrate that the effluent from processing is no danger to its own catchment".

The need for compensation was also raised by a small number of respondents, including fish farm operators. One respondent expressed specific concerns about the impact that a standstill notice could have on commercial fisheries, hence the need for compensation. The respondent suggested that:

"Rainbow trout fisheries rely on a continual supply of stock fish throughout their season. This supply can range from daily to weekly. If this supply was stopped then the fisheries would have to cease trading, with possible resulting redundancies and bankruptcy."

4% of respondents rejected the proposals. Three fish farms stated that this proposal would "destroy the business". One angler's association felt that the "powers were excessive".

3.14 Erection of barriers

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?

Table 3.7 shows the breakdown of responses to Question 31 for each of the main stakeholder groups.

Table 3.7 Views on powers to erect barriers and closure of fish passes

Note: The overall response rate for this question was 63%.

87% of respondents agreed with the question posed.

An overwhelming majority of those respondents that agreed with the proposal did not offer any explanation. Other respondents emphasised the need to tackle the disease, one angling association noted:

"This would be an essential tool in the box for eradicating the disease."

A number of respondents qualified their support for the proposals. Some noted that the erection of barriers would be impractical across major rivers, whilst others suggested some public consultation for any proposal. A few suggested that funding should be made available for restocking fisheries whilst others suggested compensation for fisheries owners for loss of income and land owners for access and erection of barriers. One public body reflected the views of some respondents concerning the potential impacts on biodiversity by noting that the erection of barriers or closure of fish passes may "have negative impacts on other species of conservation value that may depend on them - such as freshwater pearl mussel or otters", with barriers also "likely to impede migratory movements of lampreys". The same public body emphasised the need to "reconcile the response to any G. salaris outbreak with nature conservation legislation".

Another public body suggested that legislation was not required as the proposals could be undertaken under the Controlled Activities Regulations.

3.15 Powers of compulsory access

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?

Table 3.8 shows the breakdown of responses to Question 32 for each of the main stakeholder groups.

Table 3.8 Views on powers of compulsory access

Note: The overall response rate for this question was 64%.

91% of respondents answered 'yes' to the question posed.

An overwhelming majority of those respondents that agreed with the proposal did not offer any explanation for their responses. A number of District Salmon Fishery Boards wanted to see the details of how any powers of compulsory access might be implemented. Some respondents stated that compensation should be considered. One fish farm suggested that any powers should be similar to those currently held by SEPA.

Two non-fisheries businesses did not object to 'agents' having access through their land for the purposes of treating water, erecting barriers and removing dead fish. One such business stated that anybody accessing their land should ensure that:

" A responsible approach is taken to adequately managing the associated health, safety and environmental risks of such work. The agents would be required by our business to demonstrate adequate risk assessments had been undertaken and that PPE, bunding and spillage clean up facilities were to be made available for the use of chemicals. We would also require agents to leave the ground accessed during the work in the same condition, as it was found, this would include safely disposing of chemical containers from site according to the relevant waste management duty of care regulations."

3.16 Powers to require clearance of fish farms

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?

Table 3.9 shows the breakdown of responses to Question 33 for each of the main stakeholder groups.

Table 3.9 Views on powers to require clearance of fish farms

Note: The overall response rate for this question was 64%.

81% of respondents agreed with the question posed.

An overwhelming majority of respondents did not offer any reasons for answering 'yes' to the question. Those that did make comments (including fish farms, local authorities, angling associations) underlined the need for compensation to be made available where appropriate.

3.17 Powers for mandatory disinfection of recreational gear

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?

Table 3.10 shows the breakdown of responses to Question 34 for each of the main stakeholder groups.

Table 3.10 Views on powers for mandatory disinfection of recreational gear

Note: The overall response rate for this question was 58%.

82% of respondents agreed that powers should be introduced for the mandatory disinfection of recreational gear.

Some respondents stated that this was already in place, where fishermen from abroad are requested to disinfect their gear before coming to Scotland. Many, whilst agreeing with the proposal, questioned how this could be enforced and how it could be possible to implement in Scotland given the many ports of entry into the UK and Ireland. Most of the respondents that commented stressed the need for disinfection to be adopted across the UK and not limited to Scotland. Responses tended to go along the following lines:

"Careful consideration would need to be given to how to deal with anglers who may have been fishing in countries impacted by Gyrodactylus salaris who cross the border from England. There needs to be discussion with the Environment Agency in England and Wales regarding this issue, especially given the equal risk to salmonids south of the border from this parasite."

An individual responded by saying:

"We believe that whilst this would be workable with regard to areas such as the Western Isles we do not believe that it would be workable on a Scottish wide basis if the intention was to stop the introduction of GS, or similar disease/parasite from outwith Scotland. A highly significant proportion (if not the majority) of anglers coming to Scotland from mainland Europe enter through England and therefore mandatory disinfection would need to be introduced on a UK wide basis if it were to stand a chance of being truly effective."

A number of respondents also suggested the proposals should be applied to other recreational pursuits such as canoeing and rafting.

3.2 Amendments to rules on access

3.21 Making Liaison Committees mandatory

The Scottish 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?

Table 3.11 shows the breakdown of responses to Question 35 for each of the main stakeholder groups.

Table 3.11 Views on making Liaison Committees mandatory

Note: The overall response rate for this question was 54%.

74% of respondents agreed that Liaison Committees should be made mandatory.

There was a high degree of unanimity amongst all stakeholder groups on this question, with support varying between 100% from professional and academic bodies, to 67% from the voluntary sector responses. One public body noted:

" Yes. We view Liaison Committees as essential to the implementation and monitoring of protection orders."

Most respondents agreed without giving explicit reasons for agreeing to this proposal. Those that did comment suggested that the committee would have to be independent and have equal representation from all the interested parties/groups. An angling group underlined the views of many respondents by stating:

"There is a need for a proper balance of interests on these committees relevant to the individual catchment(s) and membership should also include conservation interests and where appropriate coarse angling interests…"

There were also a number of suggestions that the Liaison Committees should have formal links to Fishery Boards and Trusts.

Some of those in favour of the proposal thought that all reports and annual reviews that are passed to Scottish Ministers by the Liaison Committee should be available to the public. There was also some concern over how Liaison Committees are to be funded.

Those that disagreed with this proposal cited that "... issues presently handled by Liaison Committees could be transferred to District Salmon Fishery Boards". In addition a high number of those against, agreed that: " These [Liaison Committees] should be encouraged but should not be made mandatory".

3.22 Abolition of the requirement to advertise in the Edinburgh Gazette

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?

Table 3.12 shows the breakdown of responses to Question 36 for each of the main stakeholder groups.

Table 3.12 Views on the removal of the requirement to advertise in the Edinburgh Gazette

Note: The overall response rate for this question was 54%.

89% of respondents supported the proposal to remove the requirement to advertise in the Edinburgh Gazette.

Of those that agreed with the proposal a large contingent expressed the view that advertising in the Edinburgh Gazette was expensive and was not read or accessible to all interested parties.

One public body stated:

"Yes … PO applications (and the proposed formation of PO Liaison Committees) should be widely advertised, but requiring advertisement in The Edinburgh Gazette may not be appropriate."

Of those who disagreed with the proposal, some qualified their statements by saying that lawyers are required to be aware of such events. A private individual answered:

"No. While the general public may not read the EG many lawyers, whose clients may be affected by the proposals, do, and POs impact on proprietorial rights."

In addition many fish farm operators said that the requirement for fish farms to advertise discharge consents/ CAR licences should also be removed.

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?

Tables 3.13.1 and 3.13.2 overleaf, show the breakdown of responses to question 37 for each of the main stakeholder groups.

The most popular method of publishing suggested by respondents was in newspapers (local and national) and in angling magazines (39%). Publicising on the internet was the second most popular media with 26% of respondents in support. It should be noted that many respondents suggested multiple methods of publicity.

Those voting for the internet as a suitable method for publicising protection orders suggested using the Scottish Executive/ FRS/ SEPA web sites, as well as specific angling websites and the various fishery organisations' web sites, such as RAFTS, SFCC and the ASFB.

Table 3.13.2 shows a more detailed breakdown of the newspapers and magazines votes. 45% of respondents were in favour of local newspapers, 38% national newspapers and the angling press received 17% support in this category.

For most respondents the primary concern with whatever advertising method is chosen is that it should be widely accessible and cost effective. This response from a freshwater fisheries group said:

"There should be press releases, issued well in advance of the dates on which decisions will be made by the Scottish Ministers. These should give contact details of the secretary/agent of the proposer together with details of web sites where details of the proposals may be found. … care should be taken to include national angling bodies, angling clubs and associations, angling magazines, tackle shops etc. Circulating the addresses of web sites where details of proposals may be found would not be a particularly expensive or time-consuming exercise. In addition, it should be possible for the public to obtain printed copies of the proposals by sending a request, together with payment of copying plus postage to the secretary/agent."

Table 3.13.1 Views on how protection orders should be publicised

Note: The overall response rate to question 37 was 50%. 216 respondents answered this question. Some respondents supported more than one option in the table. The 'Share of Total Responses' column therefore totals 351.

Table 3.13.2 Views on publicising of protection orders in newspapers and magazines

3.23 Excluding fisheries from the application of a protection order

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?

Table 3.14 shows the breakdown of responses to Question 38 for each of the main stakeholder groups.

Table 3.14 Views on the contiguous coverage of Protection Orders

Note: The overall response rate for this question was 50%.

82% of those who responded were in favour of the proposal that protection orders need not cover contiguous fisheries and 16% stated their opposition to the proposal.

Of those respondents who were in favour of this proposal a number offered qualifications to their responses. A view shared by many was that there was little point enforcing a protection order against the wishes of the riparian owner. Only those who offer responsible access should benefit from protection orders was another view expressed by stakeholders.

Another shared viewpoint is best summed up by this response from a private individual:

"Yes. However we do support the concept that in order to have a Protection Order that all parts of the system should necessarily be open for "access". There may be perfectly legitimate management/conservation reasons why certain parts of the fishery are not generally open to the public. For example within a river system there may be parts of the system where increased access would have a detrimental effect on spawning or nursery areas. We are therefore strongly of the view that "access" should in fact be 'sustainable access'. Each individual application requires to be considered on its merits and at all times the principle of sustainable fisheries management should be to the fore."

One angling association added that:

"Concerns that the existence of discontinuous and possibly fragmented Protection Orders could lead to confusion among anglers as to the statutory status of a particular riparian stretch. There could be ambiguity over the position regarding fishing from boats on any loch which was partly included in an Order. We would urge the Executive. [to] give consideration to how such ambiguities can be avoided; ensuring that the boundary of the protected zone in any waterway is clear, well publicised, and signposted on site."

Those who opposed the proposal widely commented that not covering contiguous fisheries would lead to over fishing and that all areas of a river system should be covered. In addition the proposal would lead to confusion, one District Salmon Fishery Board noted:

" No - completely unworkable because anglers would not be able to determine which areas were covered."

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

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.

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? (with removing fisheries from the prescribed area in a protection order for non-compliance)

Table 3.15 shows the breakdown of responses to Question 39 for each of the main stakeholder groups.

Table 3.15 Views on removing fisheries from the prescribed area in a protection order

Note: The overall response rate for this question was 46%.

89% of respondents agreed that fisheries should be removed from the prescribed area in a protection order for non-compliance, 9% disagreed.

Many of those in favour of the proposal suggested that the proposals should go ahead but only after full consultation with all relevant fisheries and angling organisations. In addition some respondents suggested that in special circumstances a "… variation of the order should exist as an alternative to the removal of the order".

One public body noted:

"… given the risk of fragmentation and confusion … the PO area may reach a point where it is no longer workable as a single unit. At this point, the case for revoking the order should be considered by Ministers, on the advice of the Liaison Committee and the Consultative Committee for Protection Orders."

There was concern over how interested parties would know which waters are covered and waters are not.

Of those who disagreed with the proposal, stakeholders qualified their responses by noting that where a system requires protection compliance it should not be optional and that there should be no question of 'failing to comply' or 'desiring to withdraw'.

A fisheries business noted that:

"It should be automatically possible for any fishery to write to Scottish Ministers simply informing them that they are withdrawing. There is no need to advertise this as it would become obvious on the following year's permits where the limits of permitted fishing would be."

3.25 Making the existence of a protection order know to property buyers where property changes hands

There have been reports that some landowners/riparian owners have bought property, stopped access to fishing and then claimed that they did not 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?

Table 3.16 shows the breakdown of responses to Question 40 in each of the main stakeholder groups.

Table 3.16 Views on the buyer's awareness of protection orders

A Seller/agent's responsibility
B Buyer's solicitor responsibility
C Title deeds/legal burden
D Searchable publicly list/land registry/Sasine register
E Public adverts and website
F Buyer beware - caveat emptor

Note: The overall response rate for this question was 54%. 217 respondents answered this question. Some respondents supported more than one option in the table. The 'Share of Total Responses' column therefore totals 237.

The most common response (43%) focused on the seller or selling agent being responsible for notifying prospective buyers of protection orders relating to the sale. In conjunction with this 16% of respondents held the buyer's solicitor responsible for notifying their client. As one angling association noted:

"As with other conditions or restrictions applying to property they should be disclosed by the seller and notified by the solicitor. A reminder by the Land Registry would also be helpful."

A number of organisations acknowledged that the understanding of protection orders is not necessarily clear to a buyer and that a protection order should be viewed as a 'burden' on a property and should be appropriately recorded on the title deeds or 'land certification'. A number of DSFBs said:

"New proprietors of properties might not reasonably be expected to understand the complexities of fisheries legislation and a PO should be considered an obligation or a burden on the property until such time as it might be removed as a burden as per the arrangements described above. We would see this as the responsibility of any land agents and solicitors involved in both the buying and selling of the property. We assume this can be treated as any other burden or legal certification e.g. the presence/absence of building warrants."

The Land Registry, Sasine Register and other public lists were mentioned throughout respondents' answers as a way for solicitors on both sides of a sale, being able to check for protection orders. Other similar designation orders where highlighted as examples by an non-governmental organisation:

"Parallels exist with how new owners are alerted to their obligations when they buy land that is subject to an SSSI, SAC or SPA designation, where the existence of the designation is part of the 'title' to the land. A similar provision could be made available for the sale of land containing fishing rights, or of the fishing rights alone. Details could be held by the Land Registry, and responsibilities associated with Protection Orders could be set out on the Scottish Executive's website."

3.3 Fish Movements - Wild Fish

3.31 Proposals for a regulatory framework

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.

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.

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.

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

Table 3.17 show the breakdown of responses to Question 41 for each of the main stakeholder groups.

Table 3.17 Views on the regulation of the movement of fish into inland waters

Note: The overall response rate for this question was 64%.

Overall a very high proportion (88%) of respondents supported the Executive's proposal with only 3% disagreeing. The 'mixed' responses consist of answers such as those that do not clearly agree or disagree and in some cases make related legal points, as well as responses that hold different opinions depending on the fish species.

Over half of the respondents answering yes did not qualify their support in anyway. Those that did offered three main areas of comment. First, that ornamental fish should be included in the provisions. There was concern that an opportunity would be missed if they were excluded from future legislation. This public body summed up the concern:

"… [We] would encourage any measures to prevent accidental or deliberate releases of ornamental fish into the wild and would be concerned if an opportunity to do this was missed."

Secondly, there was specific support for legislation along the lines of Section 30 of the Freshwater Fisheries Act 1975 in England and Wales. Section 30 was seen as an appropriate direction to take and that it makes good sense to bring Scotland in line with England and Wales.

Thirdly, the proposal to exempt freshwater fish farms received comment both for and against. On the one hand there were concerns that disease/parasites control and issues of biodiversity would be neglected if freshwater farms were not included. On the other hand restrictions on existing 'stock restoration or enhancement programmes' were apposed by some respondents. The following comment was supported by a number of respondents, both individuals and organisations:

"We believe that the legislation should not interfere with current stock restoration or enhancement programmes that are using fish from within the catchment for stocking those fish within the same catchment."

3.4 Miscellaneous Amendments

3.41 Proposals for regulation

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/trolling - 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?

Table 3.18 shows the breakdown of responses to Question 42 for each of the main stakeholder groups.

Table 3.18 View on the proposals to permit the use of rod rests

Note: The overall response rate for this question was 57%

The majority of respondents agreed with the proposals to permit the use of rod rests, 14% opposed them.

Although most respondents answered 'yes', there were a few common caveats. Most of these additional comments related to an angler's distance from the rod rests. The precise distance drew differing opinions. One fisheries association was supported in its view that "The principle of allowing a limited number of rods that are under the direct management of the angler i.e. within arms reach, is a sound one". Other respondents stipulated that the legislative wording on the number of rods should be very clear.

There was also some feeling that the proposals should only apply to coarse fishing, but this was limited. In addition a number of respondents commented that the definition of harling should be clarified to include 'trolling'. This response from a fisheries trust suggests:

"Yes, although the considerable advances made by coarse fishermen in the use of bite detectors prompts the question [as to] whether their use should be mandatory when multiple rods are in use. The definition of 'harling' should include trolling for all species."

There was much comment on the exact number of rod rests that should be legal and this issue is addressed in the summary of question 43.

Those respondents opposing the use of rod rests primarily made the point that their introduction would be harmful to fish and have a negative effect on conservation measures.

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

Table 3.19 shows the breakdown of responses to Question 43 for each of the main stakeholder groups.

Table 3.19 Views on the number of rods

A Complete agreement with the proposals
B Complete disagreement with the proposals
C 1 rod for coarse fishing and 1 rod for harling
D 2 rods for coarse fishing and 2 rods for harling
E 3 rods for coarse fishing and 3 rods for harling
F Other mixed suggestions on the number of rods permitted
G 'Rod numbers should be left to local decisions' and 'Is there a need to change the status quo?'

Note: The overall response rate for this question was 53%.

The response to this question was wide ranging. The Executive's proposals received the most support (45%) but a considerable breadth of opinion exists. Most respondents did not qualify their choice of rod numbers.

The mixed suggestions in category F range from respondents who only gave an opinion on the number of rods for either coarse fishing or harling, as well as responses like this private individual:

"No. 1) Coarse angling - two rods per angler, 2) starling/trolling - rods in use equal to or less than the number if persons in the boat who have permission to fish. 3) Redefine 'rod and line' to specify 'a single rod and line' per angler."

Across the debate about harling there appeared repeated comment that it is traditional to cast three rods from the boat if fishing alone and that there is little evidence to suggest a good reason to change that. The suggestion of a maximum boat number, usually four or six, reoccurred in relation to this comment.

The following from an angling association sums up the feelings of many:

"For various reasons, this has been a problematic question. The general consensus within SANA is to agree with the proposals for coarse fishing - that is a maximum of four rods.

However, the Non Migratory Fish Committee disagrees with this view. It believes the maximum number of rods allowable for genuine coarse fishing should be two, with a maximum of two rod rests.

The situation regarding rod numbers for harling/trolling for salmon, ferox, etc is also contentious. Opinions from SANA members indicate the number should range between one and five rods per angler. As a compromise, we suggest that there should be a maximum of THREE active rods for a single angler in a harling/trolling boat and a maximum of TWO active rods per angler with two anglers in a boat. The maximum number of active rods permitted in any harling/trolling boat, even with more than two fishermen, should be FOUR."

3.42 Use of live vertebrates as bait

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.

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?

Table 3.20 shows the breakdown of responses to Question 44 for each of the main stakeholder groups.

Table 3.20 Views on the ban of live vertebrates as bait

Note: The overall response rate for this question was 67%.

In addition to the 294 respondents to the consultation, the Scottish Executive also received a newspaper petition from the Angling Times in opposition to the proposal to ban live vertebrates as bait. The petition included 190 signatories.

Overall a high proportion (79%) of direct respondents to the consultation supported the proposal with 19% expressing clear opposition. The mixed response returned only 4%.

The most common reason given in support of the ban was that the biodiversity and bio-security issues well outweigh all other concerns. Many of those who responded with this view also raised concerns about the introduction of alien species. One DSFB wrote:

"Yes. Despite recent proposals … for a code of practice for live bait use, this form of fishing (for all freshwater fish) represents one of the most likely sources [of introduction] of non-native species into catchments. The potential costs of disease and parasite transfer, and Gyrodactylus salaris in particular, vastly outweigh the benefits for a small group of specialist anglers."

The welfare of the fish also featured quite highly. One public body highlighted that the practice may conflict with existing and developing legislation:

"Using live vertebrates as bait is an abhorrent practice that should be banned. The use of live baits could currently constitute an offence under the Protection of Animals (Scotland) Act 1912 and will be similarly covered by the proposed Animal Health and Welfare Bill currently making its way through the Scottish Parliament."

Dead bait was mentioned on both sides of the debate, for and against the ban. Some of the respondents supporting live bait suggested it as a compromise to an outright ban. Those against the ban used it as an example of how clear the legislation will need to be in order to avoid practice loopholes. A fisheries trust said:

"Yes, this proposal is required to complement the controls on fish movements. Whilst some coarse and trout fishermen may be affected by the proposal the overriding requirements to protect Scotland's biodiversity must be given precedence. The legislation needs to be robust enough to close one of the most common routes of introductions whereby a fisherman takes a jar of live fish to the fishery, prepares dead bait as the day progresses, then releases the rest, live, at the end of the day."

Live bait supporters were keen to point out that most live bait users are responsible and as keen as anyone else to protect the biodiversity of the waters they fish. Some of these respondents commented that if the live bait originated from the local catchment then there should be no issue in its use and as such should be legal. An angling organisation supported this view but also sought an approach in line with England and Wales:

"We 100% oppose this ban and the premise on which it is based, it is also totally disproportionate to the risk it purports to address and will be totally out of line with the angling rules in England and Wales. In England and Wales you can obtain a section 30 for the purpose of using live fish as bait from health checked fish farms, there is no reason Scotland could not set up a similar system. Such a progressive move would be widely supported by anglers and angling organisations.

There is no way that an angler catching a fish and then using it as bait on the water it was caught, can ever cause a fish to be moved from one water to another. If the proposals in chapter 10 are enacted and policed properly then this will stop the inappropriate movements of fish, whether they were to be used as livebaits or not."

3.43 Use of gaffs, tailers, pike gags and landing nets

The use of gaffs, tailers, landing nets and pike gags compromise the health and welfare of freshwater fish. The use of these devices can cause serious injury to the fish being landed, and is incompatible with the adoption of catch and release.

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?

Table 3.21 shows the breakdown of responses to Question 45 for each of the main stakeholder groups.

Table 3.21 Views on the prohibiting of tailers, gaffs, pike gags and knotted landing nets

Note: The overall response rate for this question was 60%.

There was clear and decisive support for the proposals across the stakeholder groups. Those in agreement amounted to 88% of respondents, 74% of which answered only 'yes' without any further comment. Opposition responses accounted for 5% and the mixed responses, including partial agreement, represented 7%.

From those responses that offered additional comments, the main reason for support to the proposals was based on the unnecessary cruelty the devices can inflict and the resultant health and welfare problems this can cause.

The sale, use or legality of gill nets was mentioned by over a third of respondents making additional comments. Various fisheries bodies supported this view:

"The opportunity to limit or prohibit the use of monofilament gill nets should be considered. Gill nets are freely advertised and yet are illegal for use for salmon. Interceptory gill nets are a localised but significant problem in the Western Isles and undermine other conservation measures. Gill nets are a danger to a variety of other wildlife (birds/cetaceans/seals)."

Within the 5% of respondents who opposed the proposals nearly half simply answered 'no'. The remainder generally commented that the proposals went too far and that knotted nets were not an issue.

The mixed responses (7%) combined support for some items in the ban and disagreement for the remainder. A quarter of these respondents felt that tailers and knotted nets were acceptable and should not be included in the ban.

3.44 Foul-hooking

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 the 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?

Table 3.22 shows the breakdown of responses to Question 46 for each of the main stakeholder groups.

Table 3.22 Views on clearly prohibiting foul-hooking

Note: The overall response rate for this question was 59%.

There was extremely high support (92%) in favour of the proposal. A significant number of 'yes' respondents (65%) offered no further comment, those that did highlighted that deliberate or intentional foul hooking should be made illegal but that 'common sense should apply' and that accidental foul hooking cannot be prevented. It was also felt that a legal requirement to return any foul-hooked fish should apply in order to close a possible loophole in the legislation.

A stakeholder from the Professional and Academic Bodies groups answered:

"I believe that it should be an offence to foul hook a fish or attempt to foul hook a fish and all fish that are accidentally foul hooked should be returned."

The definition of foul-hooking and the exact legal wording also drew frequent comment. Various fisheries organisations supported this answer:

"Yes. The law is currently unclear on this issue ... The creation of a clear offence would certainly help enforcers. Not only should it be an offence to deliberately foul hook fish, it should also be a legal requirement to return all fish so taken accidentally. This might assist in removing the 'incentive' whereby the defence for retention is that the fish was 'accidentally' hooked outside the mouth."

There were a number of respondents that supported the proposals but pointed out that there would be difficulties in policing any new laws. The same grounds were the basis for almost all of the 'no' answers. The mixed responses echoed the same concerns but did not clearly state whether they were in favour or not.

3.45 Close times

Provision should be made that it 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?

Table 3.23 shows the breakdown of responses to Question 47 for each of the main stakeholder groups.

Table 3.23 Views on annual or weekly closed times

Note: The overall response rate for this question was 59%.

The majority of respondents were in support of the proposals (75%), over half of which answered only 'yes'. The number of respondents in the 'no' or 'mixed' categories were almost equal, 12% and 14% respectively.

The most prevalent opinion expressed was that local catchment management should be paramount. In the case of the 'yes' answers this view was expressed by most respondents emphasising that consultation and specifically local consultation must be undertaken before any closed times are decided. The wide range in spawning times across all species highlighted the need for local fisheries management involvement. One individual said:

"Yes in principle I agree, however this should only be done in conjunction with local stakeholders. Any provisions for closed times should take into account the requirements of the catchment and the sustainability of the activities that are carried out. A national closed time for species would [be] inappropriate."

Respondents who did not support the proposals also cited local consultation and knowledge as a reason for their answer. They said there was too much scope in spawning times to be covered by blanket legislation and that closed times should be a 'local management tool'.

The 'mixed' responses combined answers that: supported close times for coarse fish and not for salmonids and vice versa; gave suggestions to remove the restrictions on Sunday fishing for salmonids; and responses that highlighted the importance of local input but did not explicitly support or oppose the proposals. In addition there was also some comment that annual close times were acceptable but that weekly close times are not.

One non-governmental organisation said this:

"The old law forbidding fishing for salmon and seatrout on a Sunday was not a conservation method but a mechanism for riparian owners to keep the working class off the waters (Sunday being their only day off work). Rather than limit the days of the week on which people can fish it would be better to limit the number of wild fish anglers can kill to say one or two salmon or seatrout or wild brown trout per day. Although fish such as rainbows and others bred for put and take fisheries are infertile and do not have a close season it is important to maintain the close seasons for wild brown trout and for wild coarse fish to avoid disturbance during the breeding season."

3.46 Prohibit eradication of fish, or adversely affecting their environment

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?

Table 3.24 shows the breakdown of responses to Question 48 for each of the main stakeholder groups.

Table 3.24 Views on regulating inappropriate killing of fish

Note: The response rate for this question was 55%.

Most respondents (68%) were in favour of the proposals to introduce a power to regulate inappropriate killing of fish. Only 15% of respondents opposed and 17% gave a 'mixed' view.

Although there is a high level of support for the proposals, almost half of the respondents agreeing with them offered some comment. The most prominent theme was that although it is agreed that regulation is necessary, it should not take the form of 'outright prohibition'. This response from a fisheries association sums up a number of views.

"Yes, we agree with the regulation of this activity. However, we would not agree with its prohibition, as there could be situations were the removal of certain fish might be necessary. Any activity should come under a licensing scheme and any licence should only be granted subject to a sound ecological case being made. Provision would also need to be made so that a licence could be granted quickly if an environmental reason necessitates rapid action."

There was also comment that in cases of non-native species, such as perch and even crayfish, there should be mechanisms for their control. A fisheries trust answered:

"Yes, however there should be a provision that enables the removal of non-native species that have been introduced and do not form part of the natural ecosystem."

Opponents to the proposals (15%) said that waters that had alien species introduced should be able to be cleared. One individual pointed out "… our waters are already managed ecosystems and some control of detrimental populations must be allowed". Other respondents answering 'no' pointed out that the economic benefit of native species were more important and as such fisheries managers should have the ability to remove non-native species.

The 'mixed' responses included a broad range of comments many echoing the suggestion quoted above, that any removal of non-native species should be licensed but with the caveat that local management should take the lead role in the decision. This view expressed by a local council draws a number of these points together:

"The proposal for powers to regulate the manipulation of ecosystems is appropriate and will allow for the maintenance of a balanced ecosystem and would be likely to be in compliance with biodiversity legislation. It needs to be recognised, however, that there may be a need to eradicate non-native fish from fisheries where they have been introduced by accident. This practice should be managed by the unitary body proposed to supersede the role of the District Salmon Fishery Boards and to consider freshwater fish species other than salmonids. The management regimes of fisheries can be assessed and implemented as appropriate given the correct consultation process. If a cull or removal of a species is sought this should be put to the Regional/National management authority for consideration."

There was also repeated comment that whatever controls may be put in place they should not be 'overly bureaucratic'.

3.47 Prohibit obstruction of fish

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?

Table 3.25 shows the breakdown of responses to Question 49 for each of the main stakeholder groups.

Table 3.25 Views on extending river obstruction laws to all fish

Note: The response rate to this question was 60%.

The proposals received a very high level of support, 89%. The 'no' and 'mixed' responses were almost equal at 5% and 6% respectively.

By far the most common qualification given by supporters of the proposals said that while there should be regulation in this area, exceptions for scientific monitoring must be allowed. In addition concerns were raised about how the proposed legislation would affect current legal methods of netting. This freshwater fisheries body summed up the two points:

"Yes, except for scientific or monitoring reasons. This needs to be reconciled with legal methods of netting such as stake netting and haaf netting which should be exempted from such extended legislation."

The 'no' and 'mixed' respondents raised a number of concerns that in places overlapped. First from the 'Other Commercial' sector there was concern that new legislation would be applied to existing structures that would need to be modified:

"The Salmon (Fish Passes and Screens) (Scotland) Regulations 1994 (SI1994/2524) applies to our hydro schemes. This requires the owner or occupier of a dam on a salmon river to provide fish pass to ensure the free passage of salmon or sea trout upstream or downstream … Widening the definition for fish passage rules to apply to all fish would vastly increase the occasions on which fish passes would have to be supplied and would also increase the technical complexity of doing so … The design, installation and operation of a fish pass can add significantly to the capital costs of a hydro scheme and reduce the amount of renewable energy that it is able to generate."

It was highlighted that depending on the scope of the legislation, the proposals may be in breach of the Water Framework Directive.

Some respondents commented that the legislation should also include the ability to remove natural obstructions. Respondents found the need to consult with SEPA time-consuming. One angling association said:

"Yes, to include obstructions caused by nature. Blown trees, silting etc. So that they can be removed and rectified by the riparian owner ASAP without having to consult a third party ( SEPA)"

3.48 Proposals for regulation

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 and all times of year?

Table 3.26 shows the breakdown of responses to Question 50 for each of the main stakeholder groups.

Table 3.26 Views on widening the passage of salmon rules

Note: The overall response rate for this question was 61%.

A high proportion of stakeholders (86%) are in favour of this proposal, 9% were against.

Of those that were in favour of this proposal a number expressed concerns over coarse fish. One local authority noted:

" Yes, however, coarse fish that do not ascend rivers but migrate to still-waters must not be impeded."

A number of stakeholders said that as there has been limited research into species other than salmonids. There would be a distinct possibility that it may be costly to convert fish passes for other species of freshwater fish. A DSFB wrote:

"Yes, info regarding ability of fish species, other than salmon and trout to utilise fish passes is poor. If this was applied to existing fish passes massive investment would be required for upgrading."

A number of stakeholders shared this view and suggested " It may therefore be sensible to apply this only to new or re-furbished obstructions".

Others expressed the view that the fish passes should only be designed for the passage of native freshwater fish species. One private individual noted:

" Yes, although this should be restricted to fish which are ordinarily resident in a catchment and are currently restricted by known impediments."

Those that rejected the proposal did so on the grounds that it would prove too expensive and allow access for non-native species.

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. 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?

Table 3.27 shows the breakdown of responses to Question 51 for each of the main stakeholder groups.

Table 3.27 Views on the extension of the definition of fish

Note: The overall response rate for this question was 57%.

90% of all respondents expressed support and 6% were against the amendment. Of those that qualified their response the main reason for this was the need to control non-native crustaceans such as the North American Signal Crayfish. A private individual noted:

"Yes. At present, signal crayfish are creating serious problems. In the future mitten crabs may do so and in the more distant future there may be other arrivals in our waters."

There were also many who stated that there is a requirement for the definition of freshwater crustaceans to be made clear. One DSFB wrote: " Yes - plus freshwater crustaceans need to be more clearly defined".

Of those that disagreed with this proposal most held the view that vertebrates and invertebrates were different and so require clear taxonomy in legislation. A private individual underlined the views of many by answering:

"No, crayfish are not fish but large crustaceans that pose a whole load of different threats. Separate laws for crustaceans."

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