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APPENDIX 4: THE REGULATORY FRAMEWORK

A4.1 With particular respect to salmon, the data in the NASCO Salmon Rivers Database indicate that there are:

• 361 rivers supporting salmon populations which are designated as not being threatened with loss. Many of the larger rivers support multiple populations. On the other hand, there is uncertainty over the current status of the salmon populations of some of the smaller watercourses included in this category.
• 8 rivers where salmon populations have been restored.
• 12 rivers where salmon are threatened with loss.
• 1 river where the salmon population has been lost.

A4.2 A total of 17 rivers with salmon listed as a qualifying interest have been designated as Special Areas of Conservation ( SACs), under the EU Natura 2000 system. These rivers are:

A4.3 It is important to note that although fish are wild animals and belong to nobody until caught, and then they belong to the captor, the rights to fish for salmon or freshwater fish in Scotland are private titles. In the case of salmon, the fishing rights are private, heritable titles that may be held with or separate from any land. Any person who without legal right or written permission from a person having such right, fishes for or takes salmon (which includes sea trout) in any waters, including any part of the sea within 1.5 kilometres of mean low water springs, shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

A4.4 DSFBs were first created as a result of legislation made in the mid 19th century. Provisions for their formation and details of their powers and duties are specified in the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003. DSFBs comprise elected representatives of upper and lower proprietors of salmon fishing rights (the boundary between upper and lower is defined in byelaws), and co-opted representatives, where appropriate, of anglers and tenant netsmen.

A4.5 Where fishing for freshwater fish is concerned, the issue is slightly more complicated. The right to fish for freshwater fish is a pertinent of the land, and need not be mentioned separately in any sale of the land. Where a person wishes to transfer the fishing right without conveyance of the land, there must be a specific conveyance of the bed of the river or loch and the right of fishing must be attached.

A4.6 In general, fishing may only be undertaken by a person holding the legal right or permission from a person having such right, but fishing without permission is a civil offence. There are exceptions to this rule, however:

• where the waters concerned are a proper stank or loch, anyone who fishes without legal right or written permission from a person having such right shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 1 on the standard scale. A"proper stank or loch" is a stank or loch where the fishing rights are owned by one person, and a "stank" is a reservoir or pond with neither inlet nor outlet sufficient to allow access or egress by fish;
• any person who, without legal right, or without permission from a person having such right, takes or fishes for any fish other than salmon in any of the rivers, streams or other watercourses running into the Solway (except for the River Annan) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 1 on the standard scale;
• where a river is both tidal and navigable, there is a public right of fishing for freshwater fish as long as the person fishing can demonstrate a right to be present on the bank from which the fishing takes place, or where the fishing is done from a boat; and
• where a protection order has been made, any person who fishes for freshwater fish in inland waters without legal right or written permission from a person having such right commits an offence.

A4.7 Protection orders are made under the provisions of section 48 of the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003. Where a protection order has been made, any person who fishes for freshwater fish in inland waters without legal right or written permission from a person having such right commits an offence. Such orders may only be made upon application to the Scottish Ministers by, or on behalf of, an owner of land to which freshwater fishing rights pertain. Before making a protection order, the Scottish Ministers must be satisfied that there would be a significant increase in the availability of fishing, that the fishing would be to a degree and on such terms and conditions as they consider reasonable, and they must take into consideration, and consult on, the need for conservation of any species of fish in the area concerned. With regard to the availability of fishing, Ministers must take into account the demand from both local and visiting anglers.

A4.8 When an application is received, the Scottish Ministers consult the Consultative Committee on Protection Orders. The Scottish Anglers National Association was asked to establish this committee, which represents the principal angling interests in Scotland, to assess applications to determine whether they meet the criteria set out in section 48 of the 2003 Act. Ministers also consult FRS and SNH on fisheries and conservation aspects.

A4.9 There are currently 14 protection orders in force. These are:

• The River Tweed and Eye Protection (Renewal) Order 1991 ( SI 1991/2234)
• The Upper Spey and Associated Waters Protection (Renewal) Order 1993
  ( SI 1993/3216)
• The River Tummel Catchment Area Protection (Renewal) Order 1991 ( SI 1991/2235)
• The River Lunan Catchment Area Protection (Renewal) Order 1991 ( SI 1991 2236)
• The River Tay Catchment Area Protection (Renewal) Order 1993 ( SI 1993/276)
• The West Strathclyde Protection Order 1988 ( SI 1988/1516)
• The River Earn Catchment Area Protection Order 1990 ( SI 1990/50)
• The River Don Catchment Area (Part) Protection Order 1990 ( SI 1990/1971)
• The Loch Awe and Associated Waters Protection Order 1992 ( SI 1992/771)
• The Loch Morar and River Morar Protection Order 1992 ( SI 1992/2316)
• The River Clyde Catchment Area (Part) Protection Order 1994 ( SI 1994/1949)
• The North West Sutherland Protection Order 1994 ( SI 1994/3302)
• The River Arkaig, Loch Arkaig and Associated Waters Protection Order 1995
  ( SI 1995/2683)
• The Assynt-Coigach Area Protection Variation Order 2006 ( SSI 2006/488)

A4.10 Where protection orders have been made, the Scottish Government requires an annual report on the operation of each one from a Liaison Committee established for each area.

A4.11 In addition to the wild fishery resource, there are more than 300 stillwater fisheries, stocked principally with rainbow trout, many of which are operated as commercial concerns.

A4.12 Although certain measures, such as the duration of annual close times for salmon and trout fishing are specified in the primary legislation relating to salmon and freshwater fisheries in force in Scotland, the law in force is largely enabling legislation, allowing the Scottish Ministers to make Orders, Regulations and Byelaws to introduce specific
fishery-related measures, such as designating salmon fishery districts, making protection orders, and specifying baits and lures that may not be used. The introduction of subordinate legislation is done usually only upon application to Ministers, and always only after public consultation.

A4.13 The Scottish Government is committed to ensuring that the whole of Scotland's environment is looked after. The Executive has a central role in ensuring the implementation of domestic and European legislation directly related to the safeguarding of our fauna and flora. This necessarily involves the pragmatic application of derogations where appropriate to control, for example, serious damage to fisheries by avian and marine predators of salmon and freshwater fish.

A4.14 Although committed to the development of renewable energy, the Scottish Government is conscious of the fact that badly-designed schemes in the wrong place may have detrimental effects on fish and fisheries. Thus, proposed developments of wind farms are examined by our fisheries scientists, and the development of hydro-electric schemes with an installed capacity of greater than 1 MW must be examined by the Fisheries Committee, under the provisions of the Electricity Act 1989. Schemes of 1 MW or less are subject to the provisions of the Salmon (Fish Passes and Screens) Regulations 1994. Furthermore, engineering works and a number of other activities that may affect rivers are regulated by SEPA under the Water Environment (Controlled Activities) Regulations 2005.

A4.15 The Tripartite Working Group ( TWG) has targeted 20 areas for the formation of AMAs. A total of 18 AMGs have been established and, to date, 14 AMAs have been signed. In areas where these Agreements have been implemented, there are clear signs of improvement in local wild salmon stocks.

A4.16 The majority of the growth made by wild Atlantic salmon occurs during the marine phase of its life cycle. Historically, salmon from all rivers that support them and that flow into the North Atlantic were potentially vulnerable to being taken in fisheries on the high seas. Indeed, great numbers of salmon were taken in fisheries at west Greenland and around the Faroe Islands. Scotland is represented as part of the UK team within the EU delegation to the North Atlantic Salmon Conservation Organisation ( NASCO), whose Council and Commissions meet annually to address issues relating to the conservation and rational management of salmon throughout their natural range, and specifically set regulatory measures for the fisheries at Greenland and the Faroes. NASCO has been instrumental in reducing the fishing mortality on salmon at sea.

A4.17 The Habitats Directive is transposed into domestic law by means of the Conservation (Natural Habitats, &c.) Regulations 1994 as amended (referred to as the 'Habitats Regulations'). The Directive requires member states to designate Special Areas of Conservation ( SACs) which, taken together with Special Protection Areas ( SPAs) classified under the 1979 Birds Directive provide a network of sites across the EU known as 'Natura 2000', for the protection of our most seriously threatened habitats and species. A list of water-dependent species and habitats contained in Annexes I and II of the Habitats Directive, and designated for that feature in Scotland, is provided below.

In addition to sites within the Natura 2000 series, the Habitats Directive requires member states to protect a smaller number of species regardless of their location. A list of 'European Protected Species' [ EPS] of plants and animals' is provided in Annex IV of the Habitats Directive. This makes it an offence to deliberately or recklessly capture, kill or disturb any EPS of plant or animal. This is transposed in Part III of the Habitats Regulations. The table below provides a list of EPS which are known to occur within Scotland and may be impacted by developments either in or near waterbodies.

Scottish Office Circular 6/1995 (updated in June 2000) states that the planning decisions reached by local authorities in Scotland must at all times be consistent with the obligations placed on the UK by the Habitats and Bird Directives. This is a duty incumbent on local authorities as a matter of Community law.

Where a proposed development is within or likely to have an effect on a Natura site the competent authority has a duty under either Part IV or regulation 3(4) of the Habitats Regulations to:

• determine whether the proposal is directly connected with or necessary to site management for conservation; and, if not,
• determine whether the proposal is likely to have a significant effect on the site either individually or in combination with other plans or projects; and, if so, then; and
• make an appropriate assessment of the implications (of the proposal) for the site in view of that site's conservation objectives.

It is unlikely that any new development will be necessary for the conservation management of the site and therefore determination of significance will usually be required. It is important to note that the determination of significance is more of a coarse sieve to decide whether a more detailed appropriate assessment is required. If there is insufficient information to answer this question it must be assumed that there will be a significant effect and an 'appropriate assessment' will therefore be needed.

A4.18 It is inevitable that there will be occasions when different sectors wish to access the same water resource at the same time. In many cases, such as the water and hydro-electricity supply industries, compensation flow requirements have been included at the time of consent for the installation. In other cases, however, most notably the relatively recent increase in the use of rivers and lochs for other leisure activities such as canoeing and rafting, working arrangements must be developed between the interested parties.

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