Partial Regulatory Impact Assessment

SALMON AND FRESHWATER FISHERIES BILL

Partial Regulatory Impact Assessment

TITLE OF PROPOSAL

1. This partial Regulatory Impact Assessment (RIA) concerns the proposals for a Salmon and Freshwater Fisheries Bill.

PURPOSE AND INTENDED EFFECT OF MEASURE

Objective

2. This Bill has two main aims: firstly to consolidate and modernise legislation on the control of salmon and freshwater fish and fisheries, and secondly to implement the recommendations of the report of the independent Salmon and Freshwater Fisheries Review Group that were accepted by Government and which require primary legislation.

3. The Bill covers England and Wales (excluding the English River Tweed and its English tributaries but including the Scottish Border Esk and its Scottish tributaries). In respect of salmon, sea trout and eels, the powers extend to the six-mile limit seaward of baselines.

4. Given that the Bill will provide enabling powers, with detailed regulations to be set out in secondary legislation, it is not possible to assess the detailed impacts of the Bill. Nevertheless for parts of the Bill, it is clear that the provisions will widen the powers of the regulatory authority and the intention of this RIA is to assess the potential impact of these powers and highlight any potential issues at an early stage. A more detailed RIA will accompany any secondary legislation.

Background

5. Wild salmon stocks are seriously depleted, and stocks of multi-sea-winter fish particularly so . However stocks on some previously polluted rivers including the Tyne, the Tees and rivers of the South Wales Valleys have recovered dramatically: these recovering rivers now account for some 25 per cent of the total salmon catch. Most adult salmon counts and returning stock estimates for 2004 were higher than the recent 5-year means, and some were at the highest level recorded. Rod catches of multi-sea-winter salmon in 2004 were 30% above the five-year mean. Sea Trout stocks generally appear healthy.

6. Coarse fish populations are improving in many rivers in England and Wales. In the most recent survey, fish were present at over 98 per cent of sites, and 50 per cent of sites contained eight or more species. This is a big improvement on a decade ago, when many more rivers were grossly polluted with their fish communities restricted to just a few fish of one or two species. Although there have been recent year-to-year fluctuations on some rivers, angler catch rates on many important lowland river fisheries, have improved over the past two decades.

7. There are 38 species of freshwater fish native to Great Britain and at least 12 introduced species. The freshwater fish populations of England and Wales, together with the fisheries they support, contribute substantially to the economies of both countries with four million anglers spending around £2.5 billion a year . More people in England and Wales go fishing than take part in any other sport. There are approximately 5,000 Angling clubs in England and Wales with around 1.2 million licensed anglers. In Wales and rural England angling tourism is growing.

8. Anglers in England fish mainly for coarse species, in Wales fishing for game species is equally important. There are 21 species of coarse fish native or naturalised to England and Wales, and anglers frequently fish for 16 of these. Coarse fish inhabit a wide range of fisheries, although they are absent from steeper salmonid dominated rivers in Wales and in the south west and north of England.

9. Net fishing for salmon, sea trout and eels can make important contributions to rural economies. Although in many areas this is declining, these fisheries can have heritage value. Fish can be caught legally by means other than rod and line. Salmon, sea trout and eels are taken by nets and traps in estuarine and coastal fisheries around England and Wales. The catch is almost exclusively destined for human consumption. There are 400 licensed salmon and sea trout netsmen and 3,286 licensed eel nets/traps.

10. Salmon and sea trout are caught by a variety of methods in fisheries in coastal waters and estuaries. These methods fall into four general categories – sweep nets, gill nets, hand-held nets and fixed nets. Although many brown trout fisheries are stocked with farmed fish to augment stock density and maintain or improve angler catches, wild trout are still an important angling resource.

11. The total declared salmon rod catch in 2004 was significantly greater (almost double) than the average for the past five years though the salmon net catch has been decreasing (55% decrease compared to the 5-year mean). The North East drift net catch has reduced significantly since the introduction of the buy-out in 2003 (from a catch of 27,685 recorded by 69 fishermen in 2002 to a catch of 5,921 reported by 16 drift netsmen in 2004, a reduction of almost 80%). In 2004, 48% of rod caught salmon (13,211 fish) were released following capture.

12. Whilst sea trout abundance has increased on the majority of rivers since 1974, the declared rod catch of sea trout declined by 20% compared with 2003, from 45,101 to 36,104. The 2004 rod catch also reduced by 20% when compared with the mean of the previous five years. The release rate for sea trout (54%) was one of the highest ever recorded.

13. A total of 26,055 sea trout were declared caught by the net fisheries in 2004, a reduction of 11% compared with the 2003 catch and 34% compared with the 5-year mean.

14. A small proportion of the elvers caught in England and Wales are retained for domestic consumption. The majority are sold for re-seeding eel farms in Asia. Also, because eels from England and Wales have a disease-free status, small quantities are exported to restock Scandinavian rivers. Others are sent to Spain and Portugal, where they are a popular delicacy.

15. Eels are caught commercially in a number of locations across England and Wales, although East Anglia is the main centre. Adult eel are caught by a variety of instruments including fyke nets, putcheons and weir traps. A small amount of eel trawling also takes place off the south coast of England and in the Thames Estuary. As with elvers, most adult eel catches are exported; however, the main market for adult eels is mainland Europe.

Regulatory framework

16. The Salmon and Freshwater Fisheries Act 1975 lays down the present basic legislative framework within which salmon and freshwater fisheries in England and Wales are regulated. Conservation measures relating to salmon have existed for a number of centuries although it was not until the 19th century that they were made more systematic. The bulk of such measures were consolidated in the Salmon and Freshwater Fisheries Act 1975. The Act is divided into five parts as follows:
• Part I prohibits particular methods of taking or destroying fish;
• Part II prohibits particular mechanisms for obstructing the passage of fish;
• Part III and Schedule I cover the seasons outside which it is unlawful to catch fish;
• Part IV provides for the grant of fishing licences by the Environment Agency in the absence of which (or of compliance with which) it is unlawful to fish;
• Part V deals with administration and enforcement.

17. Further controls derive from the following legislation:
• Water Resources Act 1991, which confers power on the Environment Agency to make and enforce byelaws;
• Import of Live Fish (England and Wales), which restricts the introduction of non-native species;
• Salmon Act 1986, which provides for controls on salmon marketing;
• Environment Act 1995, which set out the aims, objectives and general duties of the Agency in relation to freshwater fish and fisheries;
• Theft Act 1968, which preserves the offence of taking fish, by any means, from private fisheries.

18. Current salmon and freshwater fisheries legislation covers England and Wales together with adjacent coastal waters up to six miles from the coast for salmon, sea trout and eels. Although it does not cover the part of the Tweed catchment area that is in England (this is effectively subject to Scottish fisheries legislation) it covers the whole of the Border Esk catchment, including that part which is in Scotland.

Rationale for Government Intervention

19. The reasons for government intervention in managing an open-access natural resource such as fisheries are well established: without controls, fishers or other river users can act in their own self interest and may not take account of their impacts on the long term sustainability of the fish stock and the economic, social and environmental benefits this provides. As detailed in the Salmon and Freshwater Fisheries Review1, there are therefore the following reasons for government involvement in the conservation of salmon and freshwater fish and management of the related fisheries:
• To ensure the conservation and maintain the diversity of freshwater fish, salmon, sea trout and eels and to conserve their aquatic environment;
• To enhance the contribution salmon and freshwater fisheries make to the economy, particularly in remote rural areas and in areas with low levels of income;
• To enhance the social value of fishing as a widely available and healthy form of recreation

Risk assessment

20. The key risks to England and Wales is that the potential benefits of a sustainable, well-managed inland fishery are not realised. These benefits are discussed in more detail below.

OPTIONS

Option 1 – do nothing

21. Under this option, there would be no change to the way that the legislation in currently implemented. It would not therefore be possible to firstly consolidate and modernise legislation on the control of salmon and freshwater fish and fisheries, or secondly to implement the recommendations of the report of the Salmon and Freshwater Fisheries Review Group.

Option 2 – proceed with Bill

22. Whilst the provisions in the Bill will largely recast and re-enact existing provisions, the Bill will go beyond existing regulation in a number of ways, including the following:

Licencing:
– Licencing: Certain rights granted by past legislation to take fish by means of fishing weirs and dams will be revoked where those rights are not currently being used. The use of gaffs and tailers will be banned and it will be an offence to use fish roe when fishing. The current powers for Sea Fisheries Committee to protect salmon will be extended to eels and migratory trout.

– Rod caught salmon: Introduction of measures to regulate the sale of salmon and freshwater fish, such that the sale of rod-caught salmon could be banned in England and Wales, as is currently the case in Scotland;

– Byelaws making powers: Provide a power to the Environment Agency to propose emergency byelaws to Ministers without consulting interests if they consider that measures are urgently required to protect specific fish populations (e.g. in response to disease outbreak or pollution incidents). Byelaws could only be made for 6 months with the possibility of one six-month renewal. There will be a duty on the Secretary of State/ National Assembly for Wales to keep such byelaws under review and, if the original criteria for making such a byelaw are no longer relevant, revoke the byelaw. Details of closed seasons will be removed from the face of the bill and dealt with purely under byelaws. The EA will also have the power to introduce minimum and maximum landing sizes.

– Carcass tagging: Power to introduce carcass tagging schemes for salmon, migratory trout and freshwater fish as a means of more effectively identifying fish taken and sold illegally and as a possible means of enforcing catch quotas, should these appear desirable in the future;

23. There is a section to this RIA for each of the powers included in the Bill as listed below. The impact of the provisions, included under each power, that go beyond current legislation will be considered.
1. Obstructions;*
2. Licensing for taking of fish;
3. Import, supply, keeping and release of live fish;*
4. Prohibition of sale of fish caught by rod and line;
5. Enforcement Powers and Penalties;*
6. Byelaw making powers of environment agency.

(Those marked * are not contained in this document, but will be circulated later)

24. Each section will cover the issues outlined below for each one of the provisions. These issues are in general specific to each power. The benefits of the new powers under this Bill are considered below as these are generally the same for all of the powers – it is difficult to estimate the scale of the benefit that can be apportioned to any one of the powers or provisions. For some of the powers there are other benefits to industry or individuals, in which case these are highlighted in the text.
• Purpose and intended effect
• Costs
• Small Firms Impact Test
• Competition Assessment

Benefits

25. The potential benefits of the additional powers stem from conserving and enhancing the environment for both salmon and freshwater fish. As well as environmental benefits, there may also be benefits to anglers from a healthier stock of fish. These benefits are difficult to quantify though an indication of the potential benefits can be obtained from work that was carried as part of the Economic Evaluation of Inland Fisheries5.

26. This study carried out a contingent valuation study of anglers and found that on average anglers were willing to pay an additional amount of £2.10 per angler, per trip for coarse fishing and £2.70 for game fishing.

27. Expenditure by anglers on angling related goods and services on both an annual basis and per trip was found to be substantial: the average expenditure for coarse angling is £859 per angler and therefore the total expenditure relating to coarse angling in England and Wales may be in the order to £2 billion. The average expenditure for game anglers is £682/angler. Total expenditure relating to game angling in England and Wales may be in the order of £545 million.

28. The economic evaluation of benefits accruing to the general public from maintaining and improving fish populations within inland water bodies in England and Wales was investigated through face-to-face household questionnaires designed to determine individual’s willingness to pay for improvements in fish populations. The survey revealed that individuals are willing to pay an average of £3.73 per household per year to maintain or improve the size and number of fish in their nearest waterbody. When multiplied up and aggregated for the population local to a waterbody, these values may be considerable. For example the responses for the River Wye suggests an annual benefit of £40 million for enhancing the river to improve salmon numbers to their original levels.

Enforcement, sanctions and monitoring

29. All enforcement, sanction and monitoring activity will be carried out primarily by the EA as it is at present.

Section 1

Title of Power

30. Licensing of Fishing Activities.

Purpose and intended effect

Objective

31. The aim of this policy is to enable the regulatory authority (Environment Agency (EA), with some oversight by Defra and/or the Welsh Assembly Government (WAG)) to control fishing through licences and authorisations and to allow for charging to fund the management of (freshwater, trout, salmonids and eel) fisheries.

32. The Bill will prohibit the act of fishing without a licence within all fresh or estuarine waters inland of the landward boundary with Sea Fisheries Committees, and in the case of salmon, trout, eels and lamphrey (the latter by non-fixed nets and traps only) anywhere within the EA’s jurisdiction (i.e. within fresh and estuarine waters and out to 6 nautical miles from baselines.

33. Licensing provisions will apply to fishing for all fish in inland waters which are habitually found in freshwater (including crustaceans but not molluscs) together with salmon, sea trout and eels within inland waters and out to 6 nm. The Secretary of State (SoS) and/or WAG will be able to add any other type of fish in inland waters to this list by Order. In practice licences will permit fishing by rod and line and non-fixed nets and traps only. Methods of fishing not allowed through licences will be permitted only if authorised by the EA.

Provisions that go beyond current legislation

34. The following provisions will be included in the power that go beyond current legislation:
• Licensing scheme: the current national licence for rod and line fishing will continue, although the cost structure for these licences will be formalised into a scheme for confirmation by the SoS and or the National Assembly for Wales. For non-fixed nets and traps, permission to fish will be granted through licences. All other methods to remove fish, including fishing mill dams, fixed nets and traps (such as putts, putchers and fishing weirs) will require authorisation by the Environment Agency. Also non-fixed nets that are not in approved schemes and other reasons for taking fish will also require authorisation. At present, apart from authorisations for the use of electric fishing or the use of seine nets, all freshwater fishing is controlled purely through licences. The EA does not have the power to refuse to grant a licence. In principle licences should be issued to all applicants not disqualified after conviction for a relevant offence, on payment of the appropriate duty (subject to any limitation on numbers through byelaws).
Restrictions on the number of licences to be issued for non-fixed nets and traps, for any given period will no longer be set through net limitation orders (NLO’s). However, these restrictions will be set out in the licence scheme to be confirmed, following public consultation and approval by the SoS and/or WAG.
The EA will also have the power to refuse or revoke an authorisation. It is therefore possible that some fisheries currently licensed will need to be authorised and upon assessment the EA could refuse the application.
• Group licences: The EA will be able to issue licences to groups or persons acting on behalf of the licencee, rather than just the licencee as at present. The holder of the group licence will be required to submit the name and address of all those who have fished under a group licence as and when demanded by the EA. This will therefore allow beginners to fish under the authority of a group licence held by a coach. This provides a greater degree of flexibility to organisations that teach anglers. This fits in with the duty of the EA to encourage people to go fishing.
• Tailers and gaffs: Tailers and gaffs will be banned in order to facilitate the introduction of catch and release schemes. The use of tailers and gaffs makes it unlikely that the fish will survive when released. Gaffs are banned under the current legislation; tailers are permitted for use with rod and line.
• Migratory trout and eels: The byelaw making powers of Sea Fisheries Committees to protect salmon migration will be extended to protect the migration of migratory trout and eels. These byelaws would ban certain mesh sizes at certain times of the year; controls might not be restricted to mesh size specifications.

Sectors and groups affected

35. The groups affected by these provisions would be both commercial fishermen and anglers. There were 395 licensed salmon and sea trout netsmen in 2004 and 1,993 licensed eel nets/traps6. In 2004, 32,768 salmon and sea trout rod licences were issued, which was a 15% in increase on the five year mean, with 191,205 fishing days declared (around 12% up on the five year mean).

Costs and Benefits

Licensing scheme

36. Where authorisations are required, the EA will make a decision based on an assessment of the likely impact of granting that authorisation, and consult when statutorily required, for instance for an application that affects a conservation site (as required by English Nature). There may be some other instances where the EA would wish to carry out informal consultation. The EA will also have the power to refuse or revoke an authorisation. It is therefore possible that some fisheries that are currently licensed will need to be authorised and this could be refused.

Q1 – The Bill will require some methods of fishing (excluding rod and line, non-fixed nets and traps) to be authorised by the EA. Approximately how many (and what percentage) of your members will be affected by this?
Q2 – What are the prominent fishing methods used by your members.
Q3 – Do you consider that this will this add to their costs?

37. The Bill will extinguish all Certificates of Privilege (CoPs). All privileged fixed nets will have to be authorised by the EA. Therefore if the privilege fixed nets are not being used and no application is made for authorisation, permission to fish by this method will automatically be revoked.

38. A recent assessment for the Severn Estuary indicated that there are 50 Certificates of Privilege in the Midlands Region (all inland of the M48 Severn crossing) and four in EA Wales. Only six of these are currently operating. The EA are also aware of one that operates on the Eden, and another that could be made operational on the Derwent. Therefore there are seven operational and up to a further twenty or so that could be made operational, but are not fished at present. The rest are derelict, but some could feasibly be brought back into operation.

39. At this stage it is not possible to assess the impact of this change in legislation on the operators of privileged fixed nets. This will also depend on the authorisation process operated by the EA. The impact of withholding or revoking and authorisation will be considered by the EA in the assessment process.

Q4 – If you or your members currently operate under a Certificate of Privilege please give an assessment of the impact this change will have.

40. The proposal to use the non-fixed nets and traps licensing scheme instead of net limitation orders could result in significant savings for the EA by removing the automatic trigger for Public Enquiry. Savings are likely to be in the order of £50k per potential enquiry. It will also remove the requirement for the Agency to buy out licences.

41. An indication of the potential reduction in cost can be seen by looking the North East fishery, where there are now 16 drift nets remaining. Unless there is further buyout activity, by 2012 the number is likely to contract by a small amount – leaving 14 or 15 nets. The highest payments in the 2003 buyout were around £80k. If statutory compensation had been continued it is possible that the costs could have been in excess of £1.2 million, as the remaining nets would be much more expensive to buy out.

Group licences

42. It is not anticipated that this provision will result in any costs; there are likely to be benefits to operators of angling courses in terms of the reduced administration costs of applying for individual licences.

Q5 – Will you or your members use group licences?
Q6 – Will they present any savings?

Tailers and gaffs

43. Banning the use of tailers will have limited short term costs (associated with fishers adapting their fishing methods) and is likely to have significant benefits in terms of improved survival rates amongst released fish in the long term.

Q7 – Do you consider a ban on the use of gaffs and tailers will increase your members’ costs?

Small Firms Impact Test

44. All of the individuals or organisations that will be affected by these provisions could be classified as small to medium sized enterprises.

Competition Assessment

45. This proposal would impact directly on the commercial salmon and freshwater fishermen. Defining the market in which licensed netsmen operate is not straightforward, as each species has different markets and the levels of substitutability between markets varies considerably depending on the species and where it is caught. Licensing netsmen selling salmon or trout also compete in markets where other types of fish such as marine fish or farmed fish are sold.

46. For salmon and trout netsmen there are no fishing interests that land more than 10% of the total catch in the UK. Given that a consistent approach will be taken to the assessment of authorisations, the proposal is likely to effect all commercial fishers in the same way and is unlikely to directly affect the market structure or change the number or the size of firms. It will not lead to higher set-up costs for new or potential firms that existing firms do not have to meet. This sector is not characterised by rapid technological changes and the proposal will not stop firms providing products or services that they would otherwise provide.

47. The competition filter has been applied to the provisions under this power and none of the answers are positive. In view of this, it is unlikely that there will be an impact on competition and therefore no requirement to undertake a detailed competition assessment is necessary.

Section 2

Title of Power
48. Prohibition of sale of fish caught by rod and line

Purpose and intended effect
Objective
49. The aim of this power is to reduce the amount of salmon or sea trout, in the first instance and potentially other freshwater fish, removed from English and Welsh waters and thereby contribute to conservation of stocks. It reflects angling’s primarily nature as a recreational activity rather than a commercial one.

Provisions that go beyond current legislation
50. There will be a ban on the sale of rod-caught salmon and sea trout, together with a power for the Environment Agency to extend the prohibition on sale to other fish, and other methods of taking (for example for eels).

Background
51. From declared catches, the number of salmon anglers who kill 10 salmon or more is about 100; it is unlikely that catches of 10 or above are solely for personal consumption. Declared catches are not an entirely accurate record of the total number of fish landed, and it is possible that a significantly higher number rod caught salmon are sold .

Costs and Benefits
Sectors and groups affected
52. This ban would impact on individual salmon anglers.

Costs
53. Approximately 100 salmon anglers might be deprived of an income from selling their rod caught salmon. The price of wild salmon when sold through wholesale markets can range from £10 to £20 per kilo . The price of fish sold more informally is likely to be lower but can give an indication of the costs to salmon anglers who currently sell their catch. If it is assumed that 100 anglers sell 10 fish each, with an average weight of 3.5kg6 then the total loss in revenue would be between £35k and £70k per year (or £350 to £700 per angler). This could be significantly higher if the number of fish sold by each angler is higher.

Q8 – Do you agree with this assessment. If possible, please add any further relevant information.

Small Firms Impact Test
54. All of the individuals or organisations that will be affected by these provisions can be classified as small to medium sized enterprises.

Competition Assessment
55. As the aim of the provision is to close down the market for rod caught salmon, the competition assessment is not applicable.

Enforcement, sanctions and monitoring
56. The EA would implement the ban through a combination of enforcement (linked to the existing approach to salmon dealers with people only being allowed to buy fish from recognised holders of a licence), promotion and awareness raising. Power to introduce carcass tagging would identify the method of capture which would facilitate enforcement as