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The Conservation of British Cetaceans: A Review of the Threats and Protection Afforded to Whales, Dolphins and Porpoises in UK Waters
E.C.M. Parsons, J. Clark, A Ross & M.P. Simmonds
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Executive Summary Cetaceans (whales, dolphins and porpoises) in UK and adjacent waters are being adversely affected by various human generated activities. The precise significance of virtually all of these is poorly known and this situation is made even worse because we also know little of the distributions and habitat needs of these animals. In short, we may well be in danger in the seas of repeating the mistakes made earlier on land for many terrestrial species: driving them from their natural habitats, reducing ranges and depleting or even extinguishing populations. For marine animals the old adage of ‘out of sight and out of mind’ still applies all too often and it is likely that the cumulative impact of human pressures is compromising the very survival of cetaceans around the UK.
This review covers the established and emerging threats affecting cetaceans and makes a series of recommendations that should be urgently implemented if the policy makers in the UK really plan to meet their conservation commitments and save British whales and dolphins for future generations.
Recommendations
Given that one major problem in conserving and adequately caring for cetaceans
remains a lack of detailed knowledge about how they use our waters, more
research is urgently needed to underpin policies relating to the use and
protection of the marine environment and specifically before potentially harmful
developments are allowed to proceed in UK and adjacent waters. However, the
need for more research should not be used as an excuse to postpone conservation
measures and this review recommends a series of important actions that should
be taken by the UK authorities in order to safeguard the future of these animals.
These are not exhaustive and are summarised below:
1. Bycatch
The incidental capture (or bycatch) of cetaceans in fishing nets is widespread and for certain species in some areas is likely to be highly significant in conservation terms. Furthermore, once ensnared in nets, cetaceans can take some time to die, many suffering severe injuries in the process, making this an important welfare issue too. In order to address this urgent problem the UK Government should:
i) prioritise efforts to resolve the technical and administrative barriers to the effective implementation of the requirement for pingers to be deployed in specified gillnet and tangle net fisheries (under EC Regulation 812/2004);
ii) in the absence of effective deployment of pingers, introduce alternative means of reducing cetacean mortality in those fisheries with unacceptable bycatch levels – including fisheries closures if necessary;
iii) monitor gillnet and tangle net use, including gear type and size and temporal and geographic distribution, and their associated bycatch levels, in order to determine the most appropriate and effective bycatch mitigation measures; iv) increase and speed up research and development of alternative by-catch
mitigation measures, including more selective fishing gear;
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v) press for further measures within the EU to address the bycatch in pelagic trawl and other fishery types not provided for in EC Regulation 812/2004, again, including the restriction or closure of fisheries where technical solutions are not yet available.
2. Pollutants
2.1 Chemical Pollution
It is important that the relevant authorities continue to carefully monitor pollution levels in UK waters and that they are particularly vigilant with respect to ‘novel’ pollutants. The detection of novel pollutants in marine top predators should be taken as a flag of concern and authorities should react with full independent investigations and where appropriate legislation. 2.2 Noise Pollution
Regulation of the Offshore Oil and Gas and Renewables Industries
• The activities of the fossil fuel industry offshore produce both chemical and noise pollution and need to be carefully regulated and monitored. The use of marine mammal observers on seismic vessels is welcomed but we believe that this system needs now to be reviewed and improved. For example, passive acoustic surveys (i.e. listening for cetacean vocalisations via electronic surveillance) should be conducted in conjuction with visual surveys, as this method increases the likelihoood of cetaceans being detected in an area, i.e. acoustic detection while animals are submerged.
• The marine mammal observer (MMO) teams collect considerable data on
cetacean distributions and responses. Efforts should be made to ensure that these data are of adequate quality (and, indeed, that the MMOs are suitably trained) to be included in national databases and reviews of cetacean distribution and behaviour.
• Where impacts are not clear – for example the extent of the impacts of
decommissioning of oil rigs where explosives and equipment making loud noises may be deployed – the benefit of the doubt should be given to marine wildlife and the most precautionary approach taken.
• With regard to offshore windfarms, underwater turbines, wave energy
generators and other forms of ‘renewable energy’ generation, consideration needs to be given to the potential impacts of construction, operation and decommissioning. The pile driving, for example, that is used to build wind farms is a substantive source of noise. Enthusiasm for green energy should not be allowed to override genuine marine conservation concerns.
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• Thorough surveys of cetaceans should be conducted before any industrial offshore industry is allowed to develop – these should determine habitat use through the seasons across the area likely to be affected, which will potentially extend beyond the development site itself. Decision about whether or not the development should go ahead and related mitigation and management measures should be based on such information.
Assessment and Regulation of Military Activities
• The issue of military sonar is of such concern that there should be a moratorium on the deployment and development of new military sonar systems until more is known.
• The Royal Navy should work with independent scientists and conservationists to
conduct a thorough, and open, assessment of the potential impacts of these sonar systems.
3. The Necessary Conservation Framework and Philosophies.
Cetaceans and the Ecosystem Approach
The Ecosystem Approach is becoming a central tenet of marine conservation. Noting their potential as indicator species, a focus on cetaceans can help to take this approach forward.
SEA (Strategic Environmental Assessment) Strategic Environmental Assessment needs to become a lynch-pin of marine conservation. To aid this, consideration should be given to the creation of a separate agency or unit with responsibility for screening and quality control of assessments, and potentially also the preparation of SEA reports and subsequent monitoring. Marine Spatial Planning (MSP)
A system of Marine Spatial Planning should be adopted for UK waters to enable a strategic overview of developments in the coastal and marine environment. The following elements are particularly important:
i) all sectors must be involved in the process; ii) the MSP must have statutory backing, in the same way that land-use planning
does; iii) resources must be put towards filling data gaps about the status of the UK’s
cetaceans and this should be fed into the planning process; iv) adaptive management practices must be put into place to allow the plan to
change as our knowledge improves; v) the body/authority given the job of developing and implementing the plans
must have sufficient power to bring all the relevant players together (this will probably require a new marine agency);
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vi) England, Wales, Scotland and Northern Ireland must work closely together on MSP (and indeed other aspects of marine conservation); and,
vii) public participation must be built into the process.
Biodiversity Action Plans (BAPs) and Local Biodiversity Action Plans (LBAPs)
• Government bodies that have committed to BAP actions should each provide
funding to a central grant-giving body, or trust fund. This fund could be overseen by an appropriate independent board of trustees, who would then allocate funding to proposed research projects by non-governmental scientific organisations and others, that would address BAP priority research needs in a cost effective and productive way.
• With regard to LBAPs, non-governmental organisations should be encouraged to take the role as lead partners to help drive the relevant processes forward.
• More action is needed at government level to make the LBAPs effective conservation tools.
4. Improving Specific Aspects of Legal Protection
The opportunity and importance of the UK’s promised Marine Bill
This Bill offers a once in a lifetime opportunity to make the improvements needed to the way the marine environment is managed and protected. Above all, Government must not lose sight of the fact that marine biodiversity around the UK has suffered serious losses over the years and depends on sound decisions being made for its conservation. Below we list the measures that we believe need to be enacted in UK law to ensure the long-term conservation and adequate protection of the UK’s cetaceans (we do not envisage that these would all be enacted via the Marine Bill). Changes to law
A number of the human activities that are currently adversely affecting the UK’s cetaceans could be better controlled by the following changes to the law:
i) introduction of a widely publicised protocol for the reporting of wildlife crime that would be advertised and displayed in key areas;
ii) development of a prosecutions database (including details of both successful and unsuccessful prosecutions) to identify problem areas and inefficiencies;
iii) similarly, development of centralised co-ordination for reporting crime and co-ordinating effort;
iv) introduction of ‘no-go’ or speed restriction zones to manage boat-based disturbance with appropriate accompanying enforcement provisions and a monitoring scheme, to create inshore zones for wildlife protection;
v) development of a comprehensive and consolidated code of conduct with statutory backing to set the standard and provide guidance to both leisure and commercial vessels as to how to behave to minimise disturbance to marine wildlife; and
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vi) instigation of effective methods to promote compliance with laws or voluntary regulations, for example, via the appointment of marine wildlife tourism officers located in areas of high marine tourism activity and/or areas which are particularly vulnerable.
The UK Parliament has devolved many powers to democratic bodies in Scotland, Wales and Northern Ireland. In territorial waters within 12 nautical miles of the shore, marine nature conservation is the responsibility of the relevant Devolved Administrations. However, there remains some vagueness as to how marine matters have been devolved and this may prove to be important in the future. Enforcement
As there are several bodies with the responsibility for enforcing legislation in the marine environment, co-ordination is extremely important and requirements in law for these bodies to work closely together and develop best practice would significantly improve the process. Further, a national system to record wildlife crime incidents and numbers of successful and unsuccessful prosecutions would aid enforcement by helping to identify crime hotspots and enable resources to be directed more effectively. Marine Protected Areas (MPAs)
A network of MPAs should be established. This should include ‘Highly Protected Marine Reserves’ (HPMRs) where few, if any, human activities are allowed. Appropriate powers must be given to the statutory nature conservation agencies and other competent authorities to ensure the MPAs can be managed and protected effectively. Comprehensive survey and monitoring work must be built in to the site management programme. The MPA network should extend throughout waters where the UK Government and devolved authorities have jurisdiction and responsibility. Inclusion of these requirements in developing legislation would increase commitment to MPAs. Improvements to the existing Natura 2000 network of sites of European importance (Special Areas of Conservation, SACs) are also required. More targeted research, decision making on what activities are allowed in or near the site, and development of SACs in offshore zones (thereby including offshore species) would strengthen the Natura 2000 network. We are also far from convinced at this time that the existing SACs have provided effective protection and believe that this matter needs careful and independent review.
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Biodiversity Measures
National species protection legislation must apply throughout waters where the UK Government and devolved authorities have jurisdiction and responsibility. We advocate the introduction of a system whereby lawful activities, such as fishing, that are resulting in the killing or disturbance of cetaceans and other protected or priority species are subject to:
i) assessment; ii) development of best practice guidance (which should have statutory backing
and enforcement); iii) ongoing monitoring of the impacts of the operations themselves and the
effectiveness of any guidelines and mitigation measures employed; iv) utilisation of feedback from the monitoring programmes to determine if further
measures are needed (including potential cessation of the activity); and v) all noise producing activities should be made to follow guidelines, as oil and
gas surveying currently has to, and this should be underpinned with a firm statutory basis.
In addition, regulatory standards for the construction, design and use of technology in the marine environment need to consider noise pollution levels alongside other environmental concerns.
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CONTENTS
1. THREATS TO UK CETACEANS
1.1. DIRECTED TAKES
1.2. INCIDENTAL TAKES 1.2.1. Entanglement in fishing gear 1.2.2. Marine litter 1.2.3. Ship strikes 1.3. POLLUTION 1.3.1. Chemical Pollution
1.3.1.1. Organohalogens
1.3.1.2. Trace elements
1.3.1.3. Butyltins
1.3.1.4. Oil
1.3.1.5. Polynuclear Aromatic Hydrocarbons (PAHs)
1.3.1.6. Sewage pathogens
1.3.1.7. Nutrient pollution
1.3.1.8. Radionuclides
1.3.2. Noise Pollution 1.3.2.1. Sources of noise
1.3.2.1.1. Shipping 1.3.2.1.2. Oil and gas exploration 1.3.2.1.3. Fish finders and depth sounders 1.3.2.1.4. Oceanographic research 1.3.2.1.5. Acoustic Harrassment Devices [AHDs] 1.3.2.1.6. Dredging 1.3.2.1.7. Windfarms 1.3.2.1.8. Military activities 1.3.2.1.9. Acoustic Deterrent Devices [ADDs]
1.3.2.2. Impacts on cetaceans
1.3.2.2.1. Behavioural changes 1.3.2.2.2. Acoustic trauma 1.3.2.2.3. Decompression sickness 1.3.2.2.4. Stress
1.4. CLIMATE CHANGE
1.5. PREY DEPLETION 2. CURRENT LEGAL AND CONSERVATION FRAMEWORK
2.1. INTERNATIONAL 2.1.1. United Nations Convention on the Law of the Sea (UNCLOS) 2.1.2. United Nations Convention on Biological Diversity (CBD) Breakout Box 1 – Noise pollution and the precautionary principle
2.1.3. Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) 2.1.4. Convention on Migratory Species (CMS)
2.1.4.1. Agreement on the Conservation of Small Cetaceans of the Baltic and
North Seas (ASCOBANS)
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2.1.5. International Union for the Conservation of Nature and Natural Resources (IUCN)
2.1.6. International Convention for the Regulation of Whaling (IWC)
2.2 REGIONAL 2.2.1 OSPAR 2.3 EUROPEAN 2.3.1 Council Directive on the Conservation of Natural Habitats and Wild Fauna and Flora (Habitats Directive) 2.3.1.1 Species Protection
2.3.1.2. Protected Areas
Breakout Box 2 - SACs
2.3.2 European Council Regulation on Bycatch 2.3.2.1. Other Bycatch Regulation
2.3.3. Strategic Environmental Assessment (SEA) 2.4. NATIONAL 2.4.1. Wildlife and Countryside Act 2.4.1.1. Species protection
2.4.1.2. Site protection
2.4.1.3. Countryside and Rights of Way Act 2000 (CROW)
2.4.1.4. Nature Conservation (Scotland) Act
Breakout Box 3 – Boat disturbance
2.4.2. The Conservation (Natural Habitats, &c.) Regulations 1994 2.4.3. Regulation of Offshore Oil Industry Activities Breakout Box 4 – Seismic guidelines
2.4.4. UK Biodiversity Action Plans 2.4.4.1 .Targets and Objectives
2.4.4.2 .Actions
2.4.4.2.1. Actions not achieved/ targets missed 2.4.4.2.2. Inconsistency of actions 2.4.4.2.3. Inconsistency of bodies to fulfil actions 2.4.4.2.4. Incomplete actions 2.4.4.3. Local Biodiversity Action Plans
2.4.4.3.1. Case Study: Argyll & Bute LBAP 2.4.4.4. BAP Summary
Breakout Box 5 – Cetaceans and the ecosystem approach
3. THE RMNC AND CURRENT THINKING
3.1. POLICY AND SPATIAL FRAMEWORK
3.2. DATA AND MONITORING
3.3. MARINE SPATIAL PLANNING
3.4. ASSESSMENT OF HUMAN ACTIVITIES
3.5. ENFORCEMENT
3.6. MARINE PROTECTED AREAS (MPAs)
3.7. BIODIVERSITY MEASURES
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4. THE MARINE BILL
5. REFERENCES
6. ACKNOWLEDGEMENTS
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1. THREATS TO UK CETACEANS
Evaluating the threats to cetaceans in the UK is problematic to say the least. Outside of, perhaps, entanglement in fishing gear,1 there has been little research to evaluate the scale and impact of various threats to the cetacean populations that use UK waters. The relative significance of the various threats can be broadly estimated from the animals found stranded on beaches where a particular factor is identified as the cause of death (e.g. injuries present are consistent with entanglement in fishing gear, marine litter, or due to boat-caused injuries). However, strandings figures cannot provide information on rates of mortality as they do not reflect those animals which were killed or injured but did not happen to wash up onto beaches, or did wash up, but were not found and reported. Nor, do they take account of less obvious or cryptic factors which may cause decreases in cetacean health, or increase the likelihood of mortality, but are not readily apparent, for example chemical or biological pollutants, or stress caused by habitat degradation or noise
Although abundance estimates for the most common species in UK waters are provided by the SCANS and SCANS II surveys (of 1994 and 2005 respectively), these represent an isolated an “snap-shot” of the situation during the surveyed summer period and provide limited information on trends in population sizes and distribution. This paucity of understanding is particularly significant for those species, such as common dolphins, which may move great distances following highly mobile prey, and thus exhibit very different seasonal distributions.
However, there is basic information on several issues which either may be (or are known to be) a significant threat to cetaceans in UK waters. These issues can broadly be divided into: directed takes, incidental takes, chemical and noise pollution and habitat degradation.
1.1. DIRECTED TAKES
Directed takes refer to activities that are specifically directed towards the killing or capturing of cetaceans. There are many directed takes of cetaceans globally, including commercial hunts for whales, as well as hunts on an aboriginal/subsistence basis2 (see Section 2.1.6). At present, for example, Norway conducts a commercial hunt of northern minke whales (Balaenoptera acutorostrata) in the North East Atlantic area, and the Norwegian government has stated that this quota will increase to more than 1000 animals per annum. The Governments of Japan and Iceland are also currently conducting lethal directed takes of cetaceans for “scientific” purposes, although to call these catches “scientific” is very misleading as they are effectively commercial whaling in everything but name.3 Iceland has recently added a commercial fin whale take to its hunts. Directed takes can also take the form of culls, that is the killing of cetaceans for the purposes of removing competition for fisheries resources4. For instance, the Norwegian Government uses the argument that minke whales compete with fishermen for depleted fish stocks as an additional justification for their whaling operations5.
Non-lethal takes of cetaceans also occur, most notably the live captures of animals for aquaria and marine theme parks. Such live captures can also cause depletion of cetacean populations6 and have become a conservation issue in several parts of the world. 7
The UK ceased whaling in 1963, and commercial whaling (see Section 2.1.6) and, indeed, the directed capturing or killing of any cetaceans in UK waters (up to 200nm from the coastline) was made illegal
1 For example, Tregenza et al. (1997), Tregenza et al. (1998). 2 See Stroud (1996) for a general review on whaling and Reeves (2002) for a review of aboriginal subsistence whaling. 3 Gales et al. (2005). 4 Earle (1996). 5 Corkeron (2004a). 6 The IUCN Cetacean Specialist Group states: “Removal of live cetaceans from the wild, for captive display and/or research, is
equivalent to incidental or deliberate killing, as the animals brought into captivity (or killed during capture operations) are no
longer available to help maintain their populations. When unmanaged and undertaken without a rigorous program of research
and monitoring, live-capture can become a serious threat to local cetacean populations”, page 17 in Reeves et al. (2003) 7 HSUS and WSPA (2005).
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under the 1981 Fisheries Limits Act,8 the Wildlife and Countryside Act (Section 2.4.1) and the EU Habitats Directive (Section 2.3.1).
However, in waters beyond the jurisdiction of the UK (or other EU Member States) cetaceans can be hunted, and at present lethal takes of minke whales are conducted by Norwegian whaling boats in areas adjacent to UK waters. Concern has been expressed that Norwegian whaling operations may take minke whales which inhabit UK waters for part of the year, but whose movements take them into Norwegian whaling grounds at other times.9
However, there is currently no information regarding the migration patterns and routes of the minke whales utilizing UK waters or their population structure. Nor are Norwegian whaling vessels required to give details of where their catch was taken. Therefore, the impact of commercial whaling upon UK cetacean populations remains currently unknown.10
1.2. INCIDENTAL TAKES
Incidental takes are those where cetaceans are killed or injured accidentally, or as a result of activities which are not specifically targeting cetaceans. The main known source of incidental take in the UK is entanglement in fishing gear. In addition, entanglement and ingestion of marine litter and strikes by boat traffic are both cause for concern.
1.2.1. Entanglement in fishing gear
Accidental entanglement (or bycatch) of whales, dolphins and porpoises in fishing gear is a major source of cetacean mortality worldwide, estimated to account for the deaths of more than 300,000 animals each year11 and posing a significant threat to many populations. Bycatch of cetaceans is widespread in the waters around the UK and has been recognised as a major conservation issue12. For example, high levels of harbour porpoise (Phocoena phocoena) by-catch have been recorded in gill nets in the Celtic Sea (over 2,200 animals per annum in 1992-199413) and North Sea (peaking at over 8000 animals in Danish and UK nets in the mid-1990s14). These mortality rates are thought to be unsustainable. Harbour porpoises evidently fail to detect gill nets under certain circumstances - whether because the auditory signal is too weak to detect or because the animals are focusing their ecolocating attention elsewhere - thus porpoises swim into, and become entangled in these types of net.
In addition to harbour porpoises, dolphin bycatch has been reported as the result of gill net15 and pelagic (mid-water) trawl fishing.16 In particular high levels of common dolphin (Delphinus delphis) strandings have been reported in south-western UK waters.17 During the three winter months of 2003, more than 260 cetaceans stranded on the beaches of south-western England. Of the common dolphins that were examined post-mortem, 61% were diagnosed as the victims of bycatch18. Strandings figures are likely to reflect only a small fraction of the actual number of mortalities as many bycaught animals do not strand, depending on a range of factors including weather, wind, tide and location. Indeed fishermen that catch animals may attempt to sink bycaught carcasses to avoid discovery.
8 As a result of the Fishing Limits Act 1981 amended the Whaling Industry (Regulations) Act 1934 . 9 Parsons et al. (1999). 10 For more information on whaling see Section 2.1.6. 11 Read et al. (2006). 12 Defra (2003). 13 Tregenza et al. (1997a) 14 Northridge & Hammond (1999); Vinther & Larsen (2002). 15 Tregenza et al. (1997b) 16 Tregenza & Collet. (1998) 17 Kuiken et al. (1994). 18 Sabin et al. (2004).
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Studies indicate that a number of fisheries, using a several different gear-types are likely to be implicated in these dolphin mortalities. However, observer monitoring of UK pelagic trawl fisheries to date has identified high dolphin bycatch rates only in the pair trawl fishery for sea bass in the western English Channel. The small UK fishery is estimated to have killed over 900 common dolphins in the five years from 2000 to 2005. However, bycatch rates in this fishery vary considerably between years, with an annual average of 183 animals but a total of 429 dolphins estimated in the winter of 2003/0419.
It is important to note that in the case of both porpoises and dolphins, the bycatch rates revealed in these studies will be only a sub-set of the total bycatch affecting the populations, as fleets of other nationalities and targeting other fisheries beyond those studied are likely also to be catching animals20.
With growing evidence of the severity of the bycatch problem, the authorities at both UK and international levels, have acknowledged the need to address it21. In response to the critical problem of harbour porpoise bycatch in the Celtic Sea gillnet and tanglenet fisheries a series of trials was conducted, starting in 1998 to investigate the efficacy and applicability of “pingers”. These small electronic devices are attached to nets and emit noises designed to keep porpoises away from the nets. While the UK trials demonstrated that pingers can substantially reduce bycatch levels, they also highlighted numerous technical and procedural problems that would be associated with the commercial use of these devices22.
The high rate of dolphin catches recorded in the bass pair trawl fishery in the western Channel triggered a UK programme of research into possible mitigation measures. This has focused on development of a dolphin exclusion device, a selection grid positioned within the net that should allow fish to pass into the net, while deflecting any dolphins upwards to one or more escape hatches in the top of the net, and also possible acoustic deterrants. The results of this work have been mixed and after six seasons of monitoring and development work, the trials have yet to produce a configuration that is workable and reliably reduces bycatch rates23.
In 2004, after several years of negotiations, the European Community adopted a new regulation to address the problem of cetacean bycatch in fisheries24. While limited in its scope and provisions, the Regulation represented important progress. First, it requires all Community vessels of 12m or longer fishing in specified drift, gill and tanglenet fisheries to use pingers on these nets. Second, it requires Member States to introduce observer schemes to monitor cetacean bycatch in certain fisheries, most notably in pelagic trawls. Third, it requires the phase out of driftnet fisheries in the Baltic Sea. However, despite the pinger requirement having come into effect in June 2005, January 2006 and January 2007 in the North Sea, Western Channel and Eastern Channel respectively, the UK fleet, in common with most of its neighbours, is still not applying this provision, arguing that the pingers available present too many practical and health and safety problems.
More than a decade has passed since the nature and scale of the cetacean bycatch problem in fisheries around the UK started to be understood. While the decline in certain fisheries may have reduced the problem incidentally in some areas, shifts in effort to different gears and stocks, means that bycatch is still likely to persist at significant levels. However, the inadequate information available on the operation and distribution of many, particularly static net, fisheries renders the problem almost impossible to address effectively. In the UK there are still no mitigation measures in place to reduce what is likely to remain the main conservation and welfare problem affecting cetaceans around the UK.
19 ICES (2005). 20 Tregenza et al. (1997a); Northridge et al. (2006). 21 ASCOBANS (2000a,b, 2003); Defra (2003). 22 Sea Mammal Research Unit et al. (2001) Seafish (2003, 2005, 2006). 23 Sea Mammal Research Unit (2004); Northridge (2006). 24 OJ L 150. 30.4.2004, p.12. Council Regulation (EC) No 812/2004 of 26.4.2004 laying down measures concerning incidental catches of cetaceans in fisheries and amending Regulation (EC) No 88/98.
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1.2.2. Marine litter
The impacts of anthropogenic debris and litter upon marine life have become a global cause for concern. 25 Around the world, an estimated one million birds and 100,000 marine mammals and sea turtles die each year either from entanglement in plastics or plastic ingestion (Laist, 1997).26
Entanglement in marine debris can result in the asphyxiation of cetaceans if they are unable to reach the surface, death from starvation, or predation if entangled near the surface.27
Moreover, marine litter can also cause:28
i) reduced maneuverability - as trailing debris creates drag, thus reducing the cetacean’s ability to forage or avoid predators;
ii) physical trauma - debris may cut into the skin and other tissues of the entangled cetacean particularly as it grows causing signifcant deblilitating wounds to develop which may also become infected; and
iii) reduced circulation – debris may become so tightly wrapped around a cetacean’s appendage that growth of the appendage may be restricted, leading to deformities, or blood circulation to the appendage is reduced or may even cease altogether.
The ingestion of marine debris by cetaceans has been documented in several species29 including the northern minke whales (Balaenoptera acutorostrata)30 and harbour porpoises (Phocoena phocoena).31 Such, ingestion of marine litter could result in:32
i) physical damage of the digestive tract – lacerations, ulceration and even piercing of the alimentary canal which may cause starvation, infection and septicaemia as the result of faecal waste spilling into the body cavity;
ii) mechanical blockages - preventing the passage of food materials through the digestive tract, ultimately leading to starvation;
iii) impaired foraging efficiency – as ingested, indigestible debris may cause a false sense of satiation or hamper the absorption of nutrients from the digestive system; and
iv) the release of toxic pollutants – toxic chemical components of the ingested materials may leach out (e.g. toxic plasticisers) or ingested materials may be coated with toxic chemicals adhering to the surface of the debris.
The types of litter which pose most threat to cetaceans include discarded fishing nets and net fragments (‘ghost’ nets), bags, plastic packing strips, synthetic ropes or line and small objects which fragment such as plastic cups.33
In the UK, relatively high rates of debris entanglement have been recorded at least for minke whales. For example, off the Isle of Mull, of the 74 identifiable minke whales recorded in a catalogue of individual animals, 12% displayed evidence of accumulating marine litter.34
25 Day and Shaw (1987); Laist (1987); Wolfe (1987); Derraik (2002). 26 Laist (1997). 27 Laist (1987) (1997) 28 Ibid. 29 Barros et al. (1990); Walker and Coe (1990); Tarpley and Marwitz (1993); Secchi and Zarzur (1999). 30 Tarpley and Marwitz (1993) 31 Kastelein and Lavaleije (1992); Baird and Hooker (2000). 32 Laist (1987) (1997) 33 Laist (1987). 34 Gill et al. (2000).
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1.2.3. Ship strikes
Marine shipping can also incidentally take cetaceans, killing or wounding through collisions. Marine traffic collisions with cetaceans were first reported in the late 1800s but their occurrence was rare until the 1950s. Since then incidences have increased and ship strikes are a major form of mortality for some whale species.35 This increase in ship strikes is believed to be not simply due to an increase in awareness of conservation and improved reporting of incidents, but also increases in fast-travelling shipping traffic.36
In particular, high-speed ferries have been highlighted as particularly problematic for cetaceans. For example, five cetacean collisions with jetfoil ferries were reported in the sea of Japan37 and at least nine ship-struck fin whales whales and other species have been hit by ferries and other shipping in the Mediterranean, including high-speed vessels servicing Corsica, Sardinia and Sicily38 In addition, several sperm whales have been struck and killed by high-speed ferries off the Canary Islands.39 Indeed, the ship strike situation in the Canaries, with respect to collisions with high-speed ferries, is so dire that a model predicts the local population of short-finned pilot whales (Globicephala
macrorhynchus) to be at risk of extirpation as the result of boat strike mortalities.40
Whale-watching vessels have caused several cetacean mortalities through collisions41 and can be a particular threat as they target areas of high cetacean abundance. For example, four fin whales, four humpback whales and three minke whales have been killed as the result of whale-watching boats; all these collisions occurred either in the St Lawrence Estuary, Canada or off the coast of Massachusetts, USA.42 In particular the trend for larger and faster whale-watching boats is of increasing concern. For example, the use of such vessels may decrease the time available for operators (and whales) to take evasive action when an animal unexpectedly surfaces close by.43 The impact of the collision will also be great for faster (and larger) vessels and it has been suggested that speeds over 13 knots are more likely to result in lethal collisions with cetaceans.44
Concerns over the increase in the number of high-speed whale watching boats in parts of the UK led to suggestions being voiced at the 2003 meeting of the International Whaling Commission that speed restrictions (i.e. 10 knots or less) be introduced in known areas of high whale abundance.45
However, to date, there have been few conclusive reports of cetaceans being killed as the result of collisions with marine traffic in the UK, although on 11th July 2005, a northern minke whale (Balaenoptera acutorostrata) calf was reported to have been hit by a small speed boat near Portsoy Harbour in Banffshire, Scotland. Moreover, several small cetaceans have also been observed with badly cut dorsal fins that may be attributable to propeller damage.46
35 Kraus (1990); Kenny (1993); Liast et al. (2001) 36 Liast et al. (2001) 37 Honma et al. (1997) 38 Pesante et al. (2000), Laist et al. (2001). 39 Leaper (2001) 40 Tregenza et al. (2000) 41 Weinrich (2005) 42 Laist et al. (2001) 43 Weinrich (2005). 44 Laist et al. (2001) 45 Parsons and Gaillard (2003) 46 Shrimpton and Parsons (2000)
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1.3. POLLUTION 1.3.1. Chemical Pollution
A wide variety of anthropogenic (man-made) pollutants enter the marine ecosystem, carried by rivers, run-off from land, sewage and waste discharges, as well atmospheric inputs. As cetaceans are long-lived top predators they are susceptible to accumulating certain persistent pollutants over their long life span. Concentrations of pollutants which may be relatively low in planktonic marine life accumulate and magnify up the food chain, and reach much higher accumulated tissue levels in marine mammals.
Some of the chemical pollutants of greatest concern with respect to cetaceans include:47 organohalogens, trace elements, Poly Aromatic Hydrocarbons and other hydrocarbons, radionuclides and the organotins. In addition biological pollutants, such as sewage pathogens, and excess nutrients, are also of concern.
Cetaceans are exposed to a wide range of contaminants, and it is possible that many of these pollutants work synergistically, that is, toxic effects of one form of pollutants may combine, or be exacerbated, due to the presence of another pollutant. For this reason the pollutants listed below should not be considered as having an impact on cetaceans in isolation, but rather impacting cetaceans as part of a suite of stressors.
1.3.1.1. Organohalogens
The first evidence of halogenated hydrocarbon (i.e. organic compounds with elements such as chlorine and bromine attached) contamination in cetaceans was provided by a study on harbour porpoises from the east coast of Scotland, in which concentrations of organochlorine pesticides such as DDT and dieldrins were discovered.48 There have subsequently been an increasing number of studies investigating cetacean contamination by organochlorines around the world, with an emphasis on organochlorine pesticides (such as DDT) and polychlorinated biphenyls (PCBs).49 Cetaceans are particularly susceptible to these highly lipophilic (fat-soluble) compounds as these animals are long-lived, occupy a high trophic level and a large proportion of their body (in particular their blubber layer) is fat. In addition, cetaceans lack certain enzymes for the detoxification of organochlorines50 and as a result, large organochlorine levels bio-accumulate in their blubber tissue. As mentioned above, the long life spans of cetaceans also mean that they accumulate organochlorines over a significant period of time, generally resulting in higher contaminant levels in older animals.51
This age-related accumulation of organochlorines is slightly different in females, however. As organochlorines are lipophilic, females can pass the contaminants onto their calves during pregnancy and via lactation.52 As cetacean milk has a particularly high lipid content and is consumed in large quantities during the initial, rapid development and growth of calves, large quantities of organochlorines can be transferred over a relatively short period of time. Indeed, a study on dolphin milk contamination in Hong Kong estimated that dolphin calves in that area would be receiving doses of organochlorines exceeding health limits that have been set for humans if they ingested more than a single drop of milk a day!53 It’s also been estimated that 80% of an adult female’s PCB and DDT burden is transferred to her first born calf.54 Consequently, cetacean calves, and adult males, often have the highest contaminant loads amongst cetaceans.
47 Johnston et al. (1996); Tanabe et al. (1998) 48 Holden and Marsden (1967) 49 See Reijnders (1996); O’ Shea (1999); Vos et al. (2003) 50 Tanabe (1988); Tanabe et al. (1988) 51 Wagemann and Muir (1984) 52 Tanabe et al. (1982); Subramanian et al. (1987a); Cockcroft et al. (1989); Morris et al. (1989). 53 Parsons (2004). 54 Cockcroft et al. (1989).
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Levels of organochlorine contamination in cetaceans are affected by the feeding behaviour of the species in question, for example, baleen whale tissues typically have lower contaminant concentrations than toothed whales and dolphins, as baleen whales feed at a lower trophic level.55 Conversely, mammal eating species of toothed whales, have been found to have higher concentrations of contaminants.56
In addition, the proximity of animals to a pollutant source can also lead to higher contaminant levels, for example coastal or estuarine animals, near to sources of pollutants, may display higher contaminant levels than more oceanic or offshore species.57
Organochlorines cause a variety of effects in mammals, including, in the case of DDT, lethal poisoning by direct action on the nervous system.58 In lower concentrations, organochlorines are known to be immuno-suppressive,59 reducing the ability of the body to fight off infection, and can increase mortality from viral,60 bacterial61 and protozoan62 infections. Immune system suppression has been documented in marine mammals exposed to organochlorine contamination,63 including cetaceans.64
In addition to direct mortality and immuno-suppression, organochlorines could adversely affect cetacean populations by the disruption of reproductive systems. This is the result of the structure of many organochlorine molecules, i.e. they resemble the structure of many reproductive hormones. As a result, reproductive failure occurs in mammals65 fed on a diet containing PCBs in relatively low66 concentrations.67 Other PCB-induced reproductive defects include altered menstrual cycles, embryo reabsorption, abortions, still-birth, impaired infant survival, and low birth weights and impaired growth.68 It should be noted, however, that the concentrations at which PCB-induced reproductive effects occurred varied between species.69 Other documented effects of organohalogens include liver toxicity, skin damage, cancer promotion, behavioural changes and “reduced intelligence”.70
In marine mammals, organochlorines have been implicated with skeletal deformities,71 lipid metabolism abnormalities in dolphins,72 testosterone deficiencies in porpoises,73 and reproductive abnormalities and failure in other marine mammal species.74 Population level effects have also been linked to organochlorines, such as the decline of beluga whales (Delphinapterus leucas) in the St. Lawrence Estuary,75 mass mortalities of seals in northern Europe76 and cetaceans in the Mediterranean, the east coast of the United States, the Gulf of Mexico and the North Sea.77 Thus, organochlorine contamination is widely considered to be a major threat to cetacean populations in a number of regions of the world.
55 O'Shea and Brownell (1994) 56 Jarman et al. (1996). 57 Parsons and Chan (2001); Parsons (2004) 58 DDT contamination of the brain has resulted in the death of various species of small mammal at relatively low concentrations: 17-34 µg.g-1 in shrews (Blarina brevicauda); 25 µg.g-1 in bats (Myotis lucifugus) and 45-50 µg.g-1 in laboratory rats and mice [Dale et al. (1963); Hayes (1965); Henderson and Woolley (1969); Gingell and Wallcave (1974); Blus (1978); Clark et al. (1978); Clarke (1981)]. It should be noted however, that our knowledge of the lethal doses for DDT in larger mammals, notably cetaceans, is lacking. 59 Vos and Luster (1989). 60 Koller and Thigpen (1973); Friend and Trainer (1974). 61 Smith et al. (1978); Thomas and Hinsdill (1978). 62 Loose et al. (1978). 63 Swart et al.(1994). 64 Lahvis et al. (1995); Levin et al. (2004). 65 i.e. mink (Mustela vison) and rhesus monkeys (Macaca mulatta) 66 0.64 µg PCB.g-1 for mink and 2.5 µg PCB.g-1 rhesus monkeys. 67 Platnow and Karstad (1973); Allen et al. (1974); Allen and Barsotti (1976); Barsotti et al. (1976); Aulerich and Ringer (1977); Bleavins et al. (1980); Aulerich et al. (1985); Kihlström et al. (1991). 68 Ibid. 69 For example, concentrations of PCBs four times higher than those causing effects in rhesus monkeys (Macaca mulatta) were required before reproductive abnormalities were induced in the related monkey species Macaca fascicularis. Ibid. 70 Safe (1984). 71 Zakharov and Yablokov (1990). 72 Kawai et al. (1988). 73 Subramanian et al. (1987b). 74 Delong et al. (1973); Helle et al. (1976); Duinker et al. (1979); Reijnders (1980); Fuller and Hobson (1986); Reijnders (1986); Baker (1989); Addison (1989) 75 Martineau et al. (1987); Martineau et al. (1994). 76 Harwood and Reijinders (1988); Hall et al. (1992). 77 Geraci (1989); Aguilar and Raga (1990); Aguilar and Raga (1993); Borrell and Aguilar (1991); Simmonds (1992).
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Numerous studies have been conducted in the UK to evaluate organochlorine levels in cetaceans.78 And several animals have been reported with organochlorine levels equal to, or exceeding, those which have been reported to cause reproductive suppression79 and immune system80 changes in species of small cetaceans.81 Some animals also have concentrations which have been considered to be a serious health risk to cetaceans.82 Recent studies in the UK have also discovered that animals for whom cause of death is disease related, have significantly higher organochlorine levels than animals dying though traumatic injury (e.g. bycatch).83 The implication of this is that organochlorine contamination,
via immuno-supressive effects, is perhaps resulting in increased cetacean mortality as a result of greater disease-related mortality.
In addition to organochlorines, research in the UK84 and adjacent waters 85 is also pointing to other classes of organohalogens - brominated fire retardants86 and perfluorinated organochemicals - as other potential contaminants that could pose health risks to cetaceans, although documented effects of these classes of contaminant have yet to be published. Other emerging organic contaminants that may pose a risk to cetecans, and thus warrant research and consideration, include short-chained chlorinated parrafins, pthalates, nonyphenol, tris (4-chlorophenyl) methane (TCPMe), tris (4-chlorophenyl) methanol (TCPMeOH), dioxins and dibenzofurans.87
1.3.1.2. Trace elements
Some trace elements, in small amounts, are essential nutrients required for healthy living. However, in excess, these elements can be toxic. In particular, so called “heavy metals”, metallic trace elements with a high atomic number, such as mercury and cadmium, are particularly toxic to biological systems, even in relatively small amounts.
Trace elements are frequently by-products of various industrial processes, such as cadmium waste generated by factories producing electric cells and batteries, and lead which has been used as an additive in petrol for decades. These trace elements can enter the marine environment through atmospheric deposition or via rivers and run-off from land. Unlike organohalogens, if ingested, trace elements tend to accumulate in protein-based tissues, such as muscle, or the liver, rather than fat-based tissues such as blubber. Like organochlorines (Section 1.3.1.1), trace elements accumulate with age and with trophic level, and some can cross the placental barrier, causing high mercury burdens in young individuals.88
The trace elements of particular concern with respect to their potential toxic effects include chromium, some forms of which are toxic and even carcinogenic.89 Cadmium also has widespread toxic effects on the mammalian body, including depressed growth, kidney damage, cardiac enlargement, hypertension, foetal deformity and cancer.90 Kidney dysfunction has also been reported in cetaceans.91
Lead encountered in cetacean tissues in the UK has been attributed to use of “leaded” petrol92 - the result of compound alkyl lead being added to petrol to act as an “anti-knocking” agent. The toxic effects of lead in mammals include anaemia, kidney damage, hypertension, cardiac disease, immuno-suppression (through antibody inhibition) and neurological damage.93
78 Holden and Marsden (1967); Morris et al. (1989); Wells and Echarri (1992); Kuiken et al. (1993); Kuiken et al. (1994b); Boon et al. (1997); Law et al. (1995); Law et al. (1996); Law et al. (1997a); Law et al. (1997b); McKenzie et al. (1997); Jepson et al. (1999); Law et al. (2001); Law et al. (2003a); Jepson et al. (2005a). 79 Subramanian et al. (1987b) 80 Lahvis et al. (1995) 81 i.e. concentrations of 10-20µg.g-1 [Subramanian et al. (1987b)]. 82 i.e. concentrations of 50-200µg.g-1 [Wageman and Muir (1984)]. 83 Jepson et al. (1999); Jepson et al. (2005a). 84 Boon et al. (2002); Law et al. (2002a); Law et al. (2002b); Law et al. (2002c); Law et al. (2003b); Law et al. (2005). 85 Van de Vijver, et al., (2003). 86 Polybrominated Diphenyl Ethers (PBDEs). 87 Simmonds et al. (2000) 88 Andre et al. (1990). 89 Anderson (1987); Gauglhofer and Bianchi (1991). 90 Kostial (1986); Stoeppler (1991). 91 Fujise et al. (1988). 92 Law et al. (1992). 93 Quaterman (1986).
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However, mercury is considered to be the trace element of greatest toxicological significance: mercury poisoning results in neurological damage, immuno-suppression and can cause foetal abnormalities in mammals.94 Several industrialized countries including Japan,95 and countries in southern Europe bordering the Mediterranean,96 have reported extremely high levels of mercury contamination in cetaceans, Indeed, it has been suggested that anthropogenic contaminants, including mercury, may have played a role in cetacean mass mortality events in the Mediterranean.97 Specific toxic effects of mercury that have been observed in cetaceans include various lesions and liver abnormalities, decreased nutritional state and fatty degeneration.98
Several studies have been conducted in the UK to evaluate trace element concentrations in a variety of cetacean species.99 Cadmium100 and mercury101, 102 levels reported in some UK cetaceans are equivalent to levels which have been associated with chronic toxic effects in other cetacean populations. Moreover, a study which analysed trace element concentrations in UK harbour porpoises discovered that animals that died from infectious diseases, as opposed to trauma-related deaths (such as bycatch), displayed significantly higher tissue concentrations of mercury, selenium and zinc. High zinc concentrations have also been linked to disease and emaciation in North Sea harbour porpoises.103 In particular, animals that displayed ratios of mercury contamination much greater than selenium concentrations (which is believed to have a mercury detoxification effect in marine mammals)104 were significantly more likely to have died from infectious diseases.105
The implication of this is that excess mercury levels resulted in immune-suppression and mortality through infectious disease in these UK harbour porpoises,106 i.e. elevated trace element concentrations are potentially causing population level effects.
1.3.1.3. Butyltins
For over thirty years organotin compounds, primarily the butlyins (BTs), were used as anti-fouling treatments in paints applied to ship hulls, fish farm cages and other marine structures. However, in the 1980s it was discovered that butyltins leaching into the marine environment can have a variety of effects on marine species.107 For example, growth retardation and deformity of sexual organs was recorded in marine invertebrates at relatively low108 concentrations.109 In addition, butyltins have been reported to have caused the disruption of mammalian immune systems110 including those of cetaceans.111
As a result of the toxicological impacts of butyltins on the marine environment, legislation was introduced in the UK in 1986 to limit their use, followed by a Europe-wide ban which was enacted in 1987 on boats under 25 metres. However, the use of butyltin-based anti-fouling paints continued on most vessels larger than 25 metres until January 2003 when a world-wide ban on tributyltin-based anti-fouling paints was enacted by the International Maritime Organisation. The ban on butyltin use on small boats did, however, play a role in substantially decreasing tributyltin contamination in some coastal areas in the UK.112
94 Clarkson (1987); Von Burg and Greenwood (1991). 95 i.e. levels of 1600 µg.g-1 dry weight [Honda et al. (1983)]. 96 i.e. levels of 13,156 µg.g-1 dry weight [Leonzio et al. (1992)]. 97 Simmonds (1992). 98 Rawson et al. (1993); Siebert et al. (1995). 99 Falconer et al. (1983); Morris et al. (1989); Law et al. (1991); Law et al. (1992); Law (1996); Law et al. (1996); Law et al. (1997a); Law et al. (1997b); Bennett et al. (2001); Law et al. (2001). 100 i.e. cadmium concentrations in liver >20µg.g-1 wet weight [Fuijise et al. (1988)]. 101 i.e. mercury concentrations in liver >61µg.g-1 wet weight [Rawson et al. (1993)]. 102 As a “rule of thumb” Wagemann and Muir (1984) suggest that levels of 100-400µg.g-1 wet weight of mercury in liver may present a threat to marine mammals. 103 Das et al. (2004). 104 Martoja and Berry (1980). 105 Bennett et al. (2001). 106 Ibid. 107 Fent (1996). 108 i.e. 10-20 ng.L-1. 109 Gibbs and Bryan (1986); Lawler and Aldrich (1987). 110 Seinen and Willems (1976); Vos et al. (1984). 111 Kannan and Tanabe (1997); Nakata et al. (2002). 112 Waite et al. (1991).
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Several cetacean populations have been discovered with high levels of butyltin contamination,113 which have, in turn, been linked to chemically-induced suppression of the cetacean immune system.114 Moreover, butyltin contamination has also been linked to a cetacean mass mortality event in Florida, which has again been associated with chemically-induced immune system damage.115
Butyltins have been reported in harbour porpoises from UK waters, and although levels were relatively high in some individuals,116 these were generally lower than those reported for small cetaceans in other areas, such as Japan, the Adriatic Sea and the USA.117 Nonetheless, there could be a potential for toxic effects as the result of this exposure,118 and researchers noted that butyltin contamination was very widespread, contaminating animals that were offshore as well as coastal.119 The UK studies also noted that cetaceans examined had higher butyltin levels than seals also analysed in the study,120 and this might be due to species-specificity in butyltin sensitivity,121 that is to say, cetaceans may be more prone to butyltin contamination as a result of their biology.
One final aspect of butyltins that should also be considered is their potential for synergistic effects when combined with other contaminants, notably types of organochlorine PCBs.122 Therefore, although levels might be low, the effects of the contaminants could combine with other pollutants, such as organochlorines, resulting in much greater damage to the immune system. As noted before (Section 1.3.1.1 and Section 1.3.1.2), cetacean mortality as the result of infectious disease has been found to be greater in animals with higher contaminant levels, presumably as the result of immuno-supression. Butyltin contamination could further increase such contaminant-induced mortalities. 1.3.1.4. Oil
In terms of environmental pollutants, oil spills are one of the forms of pollutants that grab public attention.123 Although catastrophic oil spills are what generally come to mind when oil pollution is mentioned, the greatest source of oil pollution is actually oil discharge through public sewage and waste water systems.124 In fact, natural seepage of oil through the sea bed accounts for nearly double the oil input into the oceans compared to catastrophic spills.125 Small operational spillages during oil production, transfer and transportation also account annually for larger volumes entering the marine environment than catastrophic spills.126 The breakdown of oil pollution in the marine environment is largely dependent upon environmental factors such as turbulence, sunlight and temperature, as well as the composition of the oil itself.127
With regard to cetaceans, oil can have the following possible effects:128
(a) Animals can inhale the more volatile hydrocarbons which evaporate rapidly from a fresh spill and which therefore may be present in significant concentrations just above the surface of an oil slick. These hydrocarbons may be more reactive and, therefore, toxic, with likely effects including, at the least, irritation of the respiratory membranes;
(b) Through eating oil-coated or otherwise contaminated prey items, cetaceans might ingest hydrocarbon contaminants; and
(c) Cetaceans may become physically coated with oil. Cetacean skin is presumed to be impermeable to hydrocarbons, and no significant irritation of the skin has been reported after cetaceans have been exposed to such chemicals.129 Even when the skin of cetaceans was cut,
113 Iwata et al. (1994); Iwata et al. (1995); Tanabe et al. (1998). 114 Kannan and Tanabe (1997); Nakata et al. (2002). 115 Jones (1997). 116 i.e. 640 ng.g-1 wet weight [Law et al. (1998)] 117 Law et al. (1998); Law et al. (1999). 118 Ibid. 119 Ibid. 120 Ibid. 121 Kim et al. (1998). 122 Nakata et al. (2002). 123 Scott and Parsons (2005). 124i.e. 363 million gallons of oil are discharged into the oceans via sewage systems as opposed to only 37 million gallons in catastrophic spills [Feldman and Gradwohl (1995)]. 125 Feldman and Gradwohl (1995). 126 Ibid. 127 International Tanker Owners Pollution Federation (2002). 128 Geraci (1990); Gubbay and Earll (1999). 129 Ibid.
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oil seemed to have little impact on subsequent healing.130 There have even been reports of dolphins swimming through oil, with no apparent ill effect, although some behavioural changes were observed.131 Concerns have been raised, however, that oil might clog the baleen plates of filter feeding whales, although baleen whales that have been reported to have become coated with oil have appeared to have lost 95% of their oil covering within 24hrs, and were taken to have not been unduly effected.132
It has been suggested that cetaceans seem to be able to detect and avoid, or swim underneath oil slicks133 and, therefore, the direct effects of oil pollution may be relatively minor for cetaceans. Surveys on public opinion have, however, found that oil spills are considered by the general public to be one of the greatest threats to cetaceans in parts of the UK.134
The level of concern that the public gives oil spills as a threat to cetaceans may be due to the high levels of media attention that have been given to spills occurring in the UK in recent years, and the risk that they pose to non-cetacean marine wildlife. For example, the Braer (5th January 1993, Shetland Islands, Scotland) and the Sea Empress (15th February 1996 in Mill Bay, Wales) oils spills. For both of these spills there was no evidence, however, of any direct cetacean mortality as the result of the spills,135 nor any subsequent change in cetacean distribution.136
However, these s have led to concern over contamination and intoxication of fish and shellfish in the areas effected by the spills, resulting in a fishery closure enacted under the Food and Environment Protection Act 1985 (FEPA).137 It should be noted that although there were fears over possible human poisoning from oil products, there has been no subsequent research onto the acute or more chronic toxic effects of these spills on cetaceans, in particular the possible contamination of cetaceans in these spill sites by Polynuclear Aromatic Hydrocarbons (PAHs; see Section 1.3.1.5).
1.3.1.5. Polynuclear Aromatic Hydrocarbons (PAHs)
Relatively little research has been carried out into the potential relative toxicity of Polynuclear Aromatic Hydrocarbons (PAHs). PAHs are primarily produced during combustion, both natural (e.g. bush fires) and anthropogenic (e.g. vehicle exhausts and coal-fired power stations). PAH contamination has also been associated with oil spills,138 and thus spills and other forms of oil pollution could be contributing to PAH contamination, and could cause chronic health effects in species, such as cetaceans, which may feed on contaminated prey. Despite the toxic risk that PAHs pose, the UK has yet to set health regulation guidelines for PAH contamination in seafood,139 let alone guidelines for levels that pose a risk to marine wildlife.
PAHs, notably Benzo[a]pyrene and its derivatives, can combine with DNA to produce an extremely carcinogenic compound.140 The high rate of cancer seen in beluga whales (Delphinapterus leucas) in the St. Lawrence Estuary has been attributed to PAH contamination.141 PAH contamination could therefore pose a potential threat to the health of other cetacean populations.142
Research conducted in the UK has detected PAHs in coastal and estuarine waters,143 and marine sediments144 in England and Wales. At one sediment sampling site, PAH contamination was high enough to potentially cause the mortality of marine organisms.145
130 Ibid. 131 These behavioural changes included spending less time at the surface, and faster and more infrequent blows [Geraci (1990)]. 132 Geraci (1990). 133 Geraci et al. (1983); Smith et al. (1983); St Aubin et al. (1985). 134 Scott and Parsons (2005); Howard and Parsons (in press). 135 Sea Empress Environmental Evaluation Committee (1998) 136 Baines et al. (1997). 137 Law et al. (1998b). 138 Kelly and Law (1998); Law and Hellou (2000). 139 Law and Hellou (2000). 140 Hansen and Shane (1994); Carvan and Busbee (2003). 141 Martineau et al. (1994). 142 Carvan and Busbee (2003). 143 Law et al. (1997c). 144 Woodhead et al. (1999). 145 Ibid.
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Harbour porpoises have also been analysed in the UK for PAH contamination.146 Although levels were relatively low,147 calves and juveniles were nonetheless found to have detectable levels of PAHs, and with the potential for bio-accumulation, it would be expected that adult animals may have relatively high levels of the chemicals. As studies so far have been limited to only one species of cetacean, samples from cetaceans in areas where oil spills have occurred or PAH contamination is prevalent should be specifically collected and analysed148. It would be expected, for example, that elevated levels of PAHs might be present in cetaceans from around the Shetland Isles and Wales - areas in close proximity to the Braer and Sea Empress oil spills.149
Finally, the possible synergistic effects of PAHs with other forms of organic and inorganic pollutants, particularly those of a carcinogenic nature, should be investigated. Considering the potential for PAH contamination, the levels of these contaminants in cetacean tissues, and their possible effects on cetacean health, this topic warrants further research.
1.3.1.6. Sewage pathogens
Sewage entering UK coastal waters consists of domestic, industrial, agricultural and fish farm wastes. Waste from these sources contributes a mix of organic and inorganic compounds (including trace elements; Section 1.3.1.2), quantities of marine litter (Section 1.2.2), and a mix of both harmless, but also infectious, micro-organisms.150,151 As a result of the EU Water Framework Directive and other related legislation,152 the UK Government has a commitment to upgrade sewage treatment for major urban populations and install secondary sewage treatment plants. Such secondary treatment reduces Biological Oxygen Demand (BOD) and removes suspended solids which are not removed by less rigorous forms of treatment. Bacteria153 and viruses154 are present in large concentrations in raw sewage, and current sewage treatments do not remove all the micro-organisms as it uneconomical to do so.155 Thus substantial quantities of pathogens, as well as other pollutants, still enter marine waters in the effluent from the sewage treatment plants. Moreover, many small, rural coastal towns and villages discharge their sewage via septic tanks or private outfalls directly into the marine environment without any treatment at all, potentially causing hotspots of localised sewage pollution.
Several studies have suggested that marine mammals may be susceptible to infection via human or livestock pathogens transferred via sewage or agricultural effluents. For example, a hepatitis outbreak in marine mammals in the US was believed to be the result of a virus transferred via human sewage.156 In addition, human-borne diseases such as influenza A and B, hepatitis B, herpes and measles are amongst those believed to be capable of infecting cetaceans.157 Bacteria associated with sewage water contaminated with human pathogens,158 such as Escherichia coli, Mycobacterium tuberculosis, Vibrio
cholera and Salmonella sp. have been documented in marine mammals,159, 160 Added to this, sewage-borne fungi could also, theoretically, infect marine mammals living in contaminated waters. For example,
146 Law and Whinnet (1992). 147 PAH concentrations ranged from 0.11-0.56 !g chrysene equivalents.g-1 wet weight, and 0.47-2.4 !g Ekofisk crude oil equivalents.g-1 wet weight. The highest values detected were extracted from a juvenile harbour porpoise stranded on the Isle of Man [Law and Whinnet (1992).]. 148 All recommendation relating to tissue sampling in this report relate to samples from animals that are found dead. 149 Law and Hellou (2000). 150 HMS (1990); Rees (1993). 151 Pathogens found in sewage include Salmonella spp., Escherichia coli, Streptococcus sp., Staphylococcus aureus,
Pseudomonas aeruginosa, the fungi Candida, and viruses such as enterovirus, hepatitis, poliomyelitis, influenza and herpes. 152 Water Framework Directive (2000/60/EC). Other directives concerning coastal waters quality include the Urban Waste Water Treatment Directive(91/271/EEC) and the Bathing Water Quality Directive (Council Directive 76/160/EEC). 153 up to 4,000,000,000 per litre of raw sewage [HMSO (1990)]. 154 from 10,000 to 10, 000,000 per litre of raw sewage [HMSO (1990)]. 155 Reilly (1981). 156 Britt et al. (1979). 157 Thurman (1987); Bossart et al. (1990). 158 Geldreich (1977); Olivieri (1982). 159 Bacterial species found in cetaceans include Alcaligens spp., Citrobacter freundii,Clostridium spp., Enterobacter spp.., Escherichia coli, Klebsiella spp., Leptospira spp., Mycobacterium tuberculosis, Proteus mirabilis, Pseudomonas aeringinosa,
Salmonella spp., Staphylococcus aureus and Vibrio cholera. 160 Jellison and Milner (1958); Smith et al. (1974); Sweeny and Gilmartin (1974); Streitfield and Chapman (1976); Smith et al.(1978); Diamond et al. (1979); Geraci et al. (1982); Howard et al. (1983); Baker and Baker (1988); Buck and Spotte (1986); Minette (1986); Stieger et al. (1989); Buck et al. (1991); Forshaw and Phelps (1991); Palmer et al. (1991); Fothergill et al. (1991); Thompson et al. (1993); Buck and McCarthy (1994); Baker et al. (1995); Parsons and Jefferson (2000).
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Candida sp. is a common component of sewage wastes and has been found in the tissues of some species of cetacean.161
In order for a pathogen to infect a cetacean, a site of entry is required. These include:162
(a) mucous membranes;
(b) the respiratory tract;
(c) lesions and lacerations - cetaceans frequently receive cuts and scars from objects, such as marine litter or nets, or from other cetaceans and these wounds are often the site of entry for bacterial diseases;163 and
(d) the gastrointestinal tract - from ingested water and consuming prey contaminated by pathogens as a result of living in polluted waters.164
Although research has been conducted on inorganic and organic pollutant contamination (see Sections 1.3.1.1- 1.3.1.5) there has yet to be any research in the UK on cetacean contamination by sewage-borne pathogens,165 although there have been suggestions that high rates of skin disease exhibited by bottlenose dolphins in the Moray Firth might be linked to pathogens in these waters.166 Nor has there been any research on pathogen exposure as the result of living in contaminated waters or consuming contaminated prey items.
However, an estimation of sewage pathogen exposure for Scottish cetaceans, even when the researchers assumed that cetaceans were inhabiting waters which were clean enough potentially to be classified as bathing waters, predicted that porpoises and dolphins in Scotland could be exposed to substantial quantities of bacteria through ingesting seawater alone.167 The daily exposure of these cetaceans would be several orders of magnitude higher than levels considered unsafe for humans in just a “one-off” exposure.168 Coastal waters close to urban centers are likely to be far more contaminated than the bathing beach waters used in the above exposure estimation, it is therefore likely that cetaceans inhabiting these areas are likely to be exposed to even higher levels of pathogens.169
An important consideration with this exposure to sewage borne pathogens is the issue of immune- suppression caused by anthropogenic chemicals such as organohalogens (Section 1.3.1.1), trace elements (Section 1.3.1.2) or butyltins (Section 1.3.1.3). Many pathogens contained in sewage are opportunistic and if an animal is stressed, injured or if its immune system is compromised in any other way, infection could occur. As mentioned previously, where disease has been establised as the cause of death in cetaceans in the UK, the body tissues have been found to possess significantly higher concentrations of organohalogens170 or trace element171 contaminants. For this reason, exposure to anthropogenic pathogens, i.e. via sewage pollution, should also be considered when assessing risks to cetaceans in UK waters.
1.3.1.7. Nutrient pollution
Throughout the world increased outputs of nitrogen and phosphorous wastes have led to eutrophication. This is the rapid growth of algae which produces “blooms”. These in turn decay and lead to the deoxygenation of bays, estuaries and shallow seas.172 These excess nutrients are typically the result of sewage effluent, agricultural, or industrial discharges. In the UK, fish farm sites are also a significant source of increased levels of nutrient wastes.173 Frequently the algal blooms caused by these
161 Sweeny et al. (1976); Dunn et al. (1982). 162 Grillo et al. (2001). 163 Fujioka et al. (1988). 164 Smith and Boyt (1990). 165 Grillo et al. (2001). 166 Thompson and Hammond (1992). 167 i.e. daily ingestion rate of up to 2,000-10,000 faecal coliforms day-1 for harbour porpoises or 6,000-30,000 faecal coliforms day-1 for bottlenose dolphins [Grillo et al. (2001)]. 168 Grillo et al. (2001). 169 Ibid. 170 Jepson et al. (1999); Jepson et al. (2005a). 171 Bennett et al. (2001). 172 Van Bennekom et al. (1975); Taylor (1987); Tett and Mills (1991); Sarokin and Schulkin (1992); Kerr and Ryder (1993); Vollenweider (1993); Justic et al. (1995). 173 Gowen and Ezzi (1992); Gillibrand et al. (1996); Taylor et al. (1998).
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excess nutrients are also often accompanied by the production of toxins by the algae.174 Cetaceans could potentially be affected by these toxins, either by directly absorbing them from the water column, or by consuming toxin-contaminated fish.175
It has been suggested that algal toxins were a major factor in several marine mammal mass mortalities,176 including a mortality event in the UK.177 However, the results of post mortems of animals in this particular UK event determined that although a small number of algal cells were found in the stomachs of the dolphins examined, no algal toxins were actually detected.178 Further investigation into the possible effects of algal toxins, and their role in cetacean health and mortality, should be undertaken in the UK, particularly in areas with high levels of nitrogenous waste (e.g. near nutrient discharges and fish farm sites).
1.3.1.8. Radionuclides
Some radioactive materials in the marine environment come from a natural source. However, anthropogenic sources of radionuclides179 include atmospheric fallout of nuclear weapons, accidental release from nuclear installations and discharges from nuclear plants. Radionuclides have been detected in a number of cetacean species around the world,180 including cetaceans from UK waters.181 Indeed, in comparison with other population studies, radioactive contaminant levels in UK cetaceans182 and other marine mammals183 are the highest the world.184 As yet there has been little research to evaluate the effects of radionucleide contamination on UK cetaceans, despite these animals being thought to be particularly vulnerable to radioactive pollution.185
One of the most significant sources of anthropogenic radioactive discharge is the Sellafield nuclear fuel reprocessing plant, which has been discharging radioactive waste into the Irish Sea since 1952.186 In 1994, discharges were expected to decrease after the new Enhanced Actinide Removal EAR Plant187 began operating, although in certain marine areas higher levels of radioactive contamination have been recorded following the opening of this new plant.188 In fact the discharges from Sellafield and a similar facility in La Hague, France, have been blamed for a doubling of radioactive189 contamination in Norwegian and Arctic Ocean waters since 1996, and researchers predict another doubling of contamination between 2001 and 2006.190 Thus radioactive discharges from UK facilities can not only cause impacts to UK cetaceans, but radioactive contamination may be an issue for cetaceans farther afield.
1.3.2. Noise Pollution
Levels of noise in the marine environment have increased greatly over the past few decades.191 Cetaceans are largely reliant on sound for the detection of prey and determining their surroundings (via echolocation and passive listening), navigation, maintaining social contact and communicating, including communication between sexes during courtship behaviour, the production of alarm calls and group co-ordination.192 Thus anthropogenic noise poses a problem for cetaceans, especially noise of a
174 Anderson (1989); Hallegraeff (1993); Steidinger (1993); Van Dolah (2000). 175 Legrand (1998); Van Dolah (2000). 176 Geraci et al. (1989); Costas and Lopez-Rodas (1998); Hernandez et al. (1998); Van Dolah et al. (2003); Flewelling et al. (2005). 177 Kuiken et al. (1994a). 178 Ibid. 179 Radionucleides are the radioactive forms (isotopes) of elements. 180 Samuels et al. (1970); Calmet et al. (1992); Yoshitome et al. (2003). 181 Berrow et al. (1998). 182 Up to 66.6 Bq.kg-1 (wet weight) for radioactive caesium (137C ) in a UK harbour porpoise [Berrow et al. (1998)]. 183 Up to 178.8 Bq.kg-1 (wet weight) for radioactive potassium (40K ) in a UK grey seals [Berrow et al. (1998)]. 184 Yoshitome et al. (2003). 185 Johnston et al. (1996). 186 Leonard et al. (1997). 187 Enhanced Actinide Removal Plant. 188 Leonard et al. (1997). 189 Specifically 129Iodine. 190 Alfimov et al. (2004). 191 Andrew et al. (2002) reported a 10 dB increase in ocean noise levels ( in the frequencies 20-80) Hz over a 33 year period, measures from a listening station off Point Sur in central California. This increase in marine noise was primarily attributed to shipping- produced sound. 192 Parsons and Dolman (2003a).
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frequency that could clash with, and mask, biologically important sounds, making them undetectable by cetaceans.193 One of the most ubiquitous producers of noise in the marine environment is shipping traffic. But in addition to shipping-based noise, other sources of noise that may impact cetaceans include:194
(a) air guns used during oil and gas exploration;
(b) fish finders and depth sounders;
(c) sound sources used in oceanographic research;
(d) predator deterrent devices (seal-scrammers) used in fish farms;
(e) dredging;
(f) oceanic windfarms; and,
(f) military activities.
1.3.2.1. Sources of marine noise
1.3.2.1.1. Shipping
In general, older vessels produce more noise than newer ones and larger vessels produce more than smaller ones.195 Lower frequency noises produced by shipping traffic also travel further in the ocean than higher frequency noises. So, for example, the noise from a supertanker (at 6.8 Hz) could be detected 139-463 km away.196 Whereas on a smaller scale, even the noise from a small 70 hp outboard engine, which produces noise levels of approximately 142 dB (400 Hz-4 kHz), could be detected at 50m from the source.197
Typically, shipping produces frequencies below 1 kHz (Table 1) although higher frequencies can also be produced. Most toothed whales and dolphins are believed to have poor auditory sensitivities at these low frequencies based on hearing sensitivity tests conducted on captive animals.198 Baleen whales are believed, based on the frequencies of calls they produce,199 to be more sensitive to lower frequency sound. although, recent studies on a rehabilitated gray whale (Eschrichtius robustus) calf suggest that baleen whales may be able to detect higher frequency sounds.200
However, extreme caution should be used when interpreting the sensitivity of captive cetaceans to sound. For example, despite beluga whales being deemed to have low sensitivity to low frequency sound201 they were able to detect, and reacted to, shipping noises at distances of up to 85km.202 Wild beluga whale reactions to these noises occurred at a distance much greater than predicted by mathematical models, using data from hearing sensitivity tests of captive animals. Indeed, based on the data collected from captive animals,203 the beluga whales should not have been able to hear the approach of shipping vessels until they were 20km away.204 A more recent study also documented significant behavioural reactions of harbour porpoises to low frequency noise,205 which according to hearing sensitivity tests on captive porpoises, they should not have been capable of detecting.206
193 Parsons and Dolman (2003b). 194 Parsons et al. (2003) 195 Gordon and Moscrop (1996). 196 Ross (1976). 197 Stewart et al. (1982). 198 Johnson (1967); Andersen (1970); Jacobs and Hall (1972); White et al. (1978); Ljungblad et al. (1982a); Awbrey et al. (1988); Thomas et al. (1988); Johnson et al. (1989); Wang et al. (1992); Au et al. (1997); Kastalein et al. (1997); Ridgway et al. (1997). 199 Cummings et al. (1968); Cummings and Thompson (1971); Payne and Webb (1971); Cummings et al. (1972); Clark (1982); Clark (1983); Ljungblad et al. (1980); Ljungblad et al. (1982b); Clark and Johnston (1984); Dahlheim et al. (1984); Clark et al. (1986); Cummings et al. (1986); Cummings and Holliday (1987); Clark (1990); Dahlheim and Ljungblad (1990); Würsig and Clark (1993); Cummings and Thompson (1994). 200 i.e. the gray whale calf would have good hearing in the 3 kHz, 6 kHz and 9kHz range (Ridgway and Carder, 2001), as opposed to previous studies suggesting gray whales are most sensitive to frequencies of between 0.8 and 1.5 kHz (Dalheim and Ljungblad, 1990). 201 Awbrey et al. (1988); Johnson et al. (1989) 202 Findley et al. (1990). 203 Johnson et al. (1989). 204 Findley et al. (1990). 205 NB the sounds in question were recordings of noises produced by an operating windfarm. 206 Koschinski et al. (2003).
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This emphasises the fact that wild cetaceans may be more sensitive, and thus show greater reactions to noise than captive cetaceans, so noise disturbance/impact predictions for shipping, or other forms of sound production, should interpret hearing sensitivity data with extreme caution.
Table 1. Summary of sound frequencies produced by vessel traffic and their source level.207
Type of vessel Frequency (kHz) Source level (dB re 1µPa) Reference
650cc Jetski 0.8-50.0 75-125 Evans and Nice (1996) Rigid inflatable 6.3 152 Malme et al. (1989) 7m outboard motor boat 0.63 156 Malme et al. (1989) Fishing boat 0.25-1.0 151 Greene (1985) Fishing trawler 0.1 158 Malme et al. (1989) Tug pulling empty barge 0.037
1.0 5.0
166 164 145
Buck and Chalfant (1972) Miles et al. (1989)
Tug pulling loaded barge 1.0 5.0
170 161
Miles et al. (1989)
34m (twin diesel engine) workboat 0.63 159 Malme et al. (1989) Tanker (135m) Tanker (179m) Supertanker (266m) Supertanker (340m) Supertanker (337m)
0.43 0.06 0.008 0.007 0.007
169 180 187 190 185
Buck and Chalfant (1972); Ross (1976); Thiele and Ødengaard (1983)
Containership (219m) Containership (274m) Freighter (135m)
0.033 0.008 0.041
181 181 172
Buck and Chalfant (1972); Ross (1976); Thiele and Ødengaard (1983)
1.3.2.1.2. Oil and gas exploration
In order to determine the location and nature of oil and gas deposits under the sea bed, the petrochemical industry conducts seismic surveys. These surveys produce high intensity sounds which penetrate the seabed and the echo of these sounds, upon analysis, tells the oil companies the structure of the sea bed and positions of probable fossil fuel deposits. Depending on the method being conducted, seismic surveys can produce sound of frequencies ranging from 5 Hz to 200 kHz, at levels of 225 to 270 dB (Table 2).
The sounds produced by seismic surveys can be detected more than 3000 miles from their source.208 In fact, researchers trying to record cetaceans in the mid-Atlantic found that whale calls were frequently being masked by the high levels of continuous sound produced by seismic surveys.209
Many direct observations of cetacean responses to seismic surveys have been recorded,210 for example sperm whales have been observed exhibiting a “startle” reaction 2km away from a seismic survey source.211 Common dolphins have also been observed avoiding a seismic survey source, when received sound levels would only have been approximately 133dB.212 Again, the reactions of wild cetaceans to these noises occurred at levels which, according to studies on predicted hearing sensitivities and hearing abilities of captive cetaceans, should not have affected these animals.213
Seismic surveys have also been linked to stranding events. In 2002 two Cuvier’s beaked whales (Ziphius cavirostris) stranded on the Isla San Jose, in the Gulf of California, at a time when the US National Science Foundation was conducting seismic surveys from the research vessel Maurice Ewing.214 It is possible that seismic surveys are also the causative factor for cetacean strandings in other areas, such as the Galápagos Islands.215
207 From Greene and Moore (1995); Parsons et al. (2003). 208 Nieukirk et al. (2004). 209 Ibid. 210 Evans and Nice (1996); Gordon and Moscrop (1996); Gould and Fish, (1998); Swift (1997); Stone (2003). 211 Stone (2003). 212 Gould and Fish (1998). 213 Gould and Fish (1998). See also Gould and Fish (1999). 214 Malakoff (2002). 215 Palacios et al. (2004).
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Table 2. Summary of sound frequencies produced by seismic surveys and their source level.216
Activity Frequency range (kHz) Source Level (dB re 1 !Pa)
Seismic surveys i) High Resolution pingers, side-scanner ii) Low resolution Airguns Sleeve exploder Vibroseis
10-200
0.008-0.5
0.005-0.5 0.02-0.07
<230
230-250
225-270
260
Oil and gas production platforms also produce noise from both drilling and other machinery and also from associated vessel and aircraft movements.217
1.3.2.1.3. Fish finders and depth sounders
Marine vessels are equipped with numerous devices which produce high levels of sound. The most common being echo-sounders and fish finders, which analyse received sound echoes from either fish or the seabed. Although sound levels for these pieces of equipment can be substantial218 and their use widespread, there has been little consideration as to the impacts of this sound source on cetaceans, in comparison to other high intensity sources.
However, it should be noted that the International Whaling Commission Scientific Committee has recently discussed the issue of depth sounders and other sound producing equipment on board survey vessels and whether their use may affect the behaviour and sightings rates of cetaceans.219 It is possible that these types of equipment may have a more substantial effect on cetaceans than previously thought.
1.3.2.1.4. Oceanographic research
Oceanographers frequently use high intensity sound sources during their research, including the use of seismic surveys, which in the case of at least one research vessel has been linked to a beaked whale stranding event (see Section 1.3.1.3).220 However, one of the most infamous research projects was the Acoustic Thermometry of the Ocean Climate (ATOC) project which, apart from everything else, drew attention to the potential risks of intense low frequency sound to cetaceans. The ATOC project was designed to detect changes in oceanic temperatures using a high intensity, low frequency sound source.221 The project was initially to have two transmitters operating from Kauai, in the Hawaiian Islands and the Monterey Bay National Marine Sanctuary in California. After public protest, the California sound source was relocated to the Pioneer Seamount, outside of, but close to, the Monterey Bay Sanctuary area.222
To investigate the potential impacts of the ATOC sound source on cetaceans, in 1991 a field test was conducted on Heard Island, in the Antarctic. While the low frequency sound source was operating223 researchers monitored a 70km by 70km area of ocean via a network of underwater sound receivers:224 Although long-finned pilot whales (Globicephala melas) and sperm whales (Physeter macrocephalus) were acoustically detected nearly a quarter of the time225 when the sound source wasn’t operating, there were no acoustic detections of these species at all when the sound system was on.226
216 From Greene and Moore (1995); Perry (1998) 217 See Simmonds et al. (2003) for more detail. 218 For example 220-230 dB for side scan sonar (50-500 kHz); 180dB+ for depth sounders (12kHz+); 200-230 dB for bottom profilers (100Hz-160 kHz) and 180-200 dB for navigational transponders (7-60kHz) [Greene and Moore (1995)]. 219 See section 8.5 in International Whaling Commission (2005b). 220 Malakoff (2002). 221 Munk and Forbes (1989); Advanced Research Projects Administration (1995a); Advanced Research Projects Administration (1995b). 222 Advanced Research Projects Administration (1995b); Parsons et al. (2003). 223 209-219 dB re 1 !Pa vcentered on 57Hz. 224 Bowles et al. (1994) 225 Over a period of 1181 minutes (i.e. nearly 20 hours). 226 Over a period of 1939 minutes (i.e. over 30 hours).
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Despite the results of the Heard Island test, the ATOC project continued, albeit with a quieter (195 dB) source level than used in the Heard Bay test.227 Nonetheless, effects of the sound source on cetaceans were still recorded. In Kauai, distances and durations between surfacings increased in humpback whales (Megaptera novaeangliae) exposed to ATOC in two separate studies;228 with the whales receiving ATOC signals at levels of 98-109 dB.229 The humpback whales did not appear to be displaced from the effected area, although when the sound source was on the whales were statistically significantly further from the sound source than when the sound source was off.230
These results were also echoed by researchers conducting aerial surveys in the Californian site, where humpback whales and sperm whales were sighted significantly further away from the ATOC sound source when it was turned on.231
Despite these results, the ATOC project was taken to have no biologically significant effects on marine mammals, either in the short-term or long-term, an attitude which was criticised in a US National Research Council report.232 This report took the stance that the marine mammal research program associated with the ATOC project was insufficient and had not adequately conducted research into whether there had indeed been short or long-term effects on marine mammals, or their biological significance.
Also linked to the ATOC tests were a number of whale strandings which occurred coincident with the start of several of the tests.233 However, none of the whales were recovered or appropriately necropsied to determine whether the whales may have died due to acoustic exposure.
ATOC ceased operating in October 1999, but the sound source was reused for another related project in 2002: the North Pacific Acoustic Laboratory program (NPAL). NPAL is ongoing. In this second program monitoring surveys of whale distribution were also conducted, and although humpback whales were also seen further away from the source when the system was operating, this was not statistically significant.234 The researcher noted however, that this lack of a statistical significant effect might be due to the small number of whale sightings compared to other projects.235
Nonetheless, the studies investigating the effects of noise produced by acoustic research have shown statistically significant effects on cetaceans, and the lack of information to date on the short or long term impacts of these effects is the fault of the experimental and monitoring program design, rather than a lack of an actual effect.236
1.3.2.1.5. Acoustic Harrassment Devices [AHDs]
Fish farms are frequently predated by seals, sealions and other marine predators. In an effort to prevent marine mammals, in particular, from approaching fish farm sites, many companies have resorted to using Acoustic Harassment Devices (AHDs) or ‘seal-scrammers’, to scare away, or even cause pain due to acoustic trauma in, these predators.
A recent study evaluated the source levels of three common varieties of AHDs within an open water setting. The AHDs produced mid to high frequency sounds (1.8 kHz – 103 kHz) with a peak source level of up to 193 dB.237 The frequencies used in these devices coincide with the hearing ranges, and frequencies utilised by many cetacean species. Indeed, there are several studies which have
227 US Department of Commerce (1990). 228 Frankel and Clark (1998); Frankel and Clark (2000). 229 Frankel and Clark (2000). 230 Frankel and Clark (2002). 231 Calambokidis (1998). 232 National Research Council (2000). 233 Three dead humpback whales were discovered on 3rd and 9th November 1995 near the ATOC cource in California. It was subsequently discovered that the ATOC source had been tested twelve times between 28th October and 2nd November, and the probably time of death for these three whales was during the period of ATOC operation. A few days after the Kauai source was activated, on 10th November 1997, a dead humpback whale was discovered on the north shore of the island. A juvenile sperm whale was also discovered a month later on 2nd December on the shore of Oahu [Hall, (1998)]. However, whether these strandings were coincidental “natural” mortalities or the result of ATOC exposure is again unknown. 234 Mobley (2005). 235 i.e. only 70 whales were sighted over 3 years in the NPAL monitoring program [Mobley (1995)] as opposed to 207 humpback whales and 210 sperm whales in the California ATOC monitoring program [Calambokidis (1998)]. The animals in the NPAL project might also be exposed to lower received levels of noise than the California ATOC study, meaning that responses may be more subtle and again difficult to show statistically with such a small sample size [Mobley (2005)]. 236 National Research Council (2000). 237 Lepper et al. (2004)
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documented displacement of cetaceans from their habitat by such AHDs,238 with one study concluding that harbour porpoises would be excluded from a 400m radius area around an AHD, and porpoise abundance would be significantly reduced within 3.5 km of a device.239 Another study240 reports sustained avoidance of an area with AHDs over a period of months indicating longer term impacts on cetaceans. The conflict between cetacean habitat and fishfarm sites is increasingly becoming a cause for concern.241 The issue is particularly pertinent in the waters of western Scotland which have a high density of fish farms, indeed every major sea loch in the area is occupied by at least one fish farm facility, and more than half of these fish farm operations use AHDs as anti-predator mechanisms.242 It has been calculated, based on potential exclusion areas around sites with AHDs,243 that harbour porpoises would be excluded from 16km2 of coastal waters and porpoise abundance would be significantly reduced over an area of 1187 km2 in western Scotland alone.244 Conversely, field studies have shown that AHDs may in some circumstances be ineffective as an anti-predator device with respect to marine mammals,245 therefore disturbance to cetaceans could be occurring, with no actual benefit to the fish farms. Simple removal of AHDs from fish farm sites would be an easy way to reduce one source of acoustic disturbance to cetaceans in the UK.This matter deserves further study.
1.3.2.1.6. Dredging
Dredging operations can be conducted to remove silt or sediment from the seabed to keep shipping routes clear; to quarry marine gravel, sand and other materials, typically for use in construction or roads; or as a means of fishing, notably for clams and other shellfish. Several studies have demonstrated that the noise produced by dredging operations can impact cetaceans, for example gray whales (Eschrichtius robustus) were displaced for several years from the Laguna Guerro Neggro in Baja, California, after dredging operations occurred in the area.246 In addition, bowhead whales were displaced from an area, moving over 2km away from the sound source, when sounds of dredging were played back to them,247 even though the received sound levels were relatively low.248 In this second case study,249 the whales also stopped feeding, vocalising decreased and the animals also exhibited changes in surfacing,, respiration and diving patterns.250
In the UK there are several areas where dredging is a major activity, including navigable waterways or estuaries inhabited by cetaceans, and areas with benthic mineral or material deposits which are currently, or may in the future be, exploited; for example there are several sites in the western isles of Scotland where commercial mineral extraction via dredging poses a potential problem for cetacean populations.251
238 Olesiuk et al. (1996); Taylor et al. (1998); Johnston and Woodley (1998); Morton and Symonds (2002); Johnston (2003). 239 Olesiuk et al. (1996). 240 Morton and Symonds (2002). 241 Würsig and Gailey (2002); Markowitz et al. (2004). 242 Quick et al. (2004). 243 Olesiuk et al. (1996). 244 Shrimpton (2001). 245 Sepúlveda and Oliva (2005). 246 Bryant et al. (1984). 247 Richardson et al. (1985a); Richardson et al. (1985b); Richardson et al. (1990); Wartzok et al. (1989). 248 i.e. broadband levels of 122-131 dB re 1!Pa. 249 Richardson et al. (1985a); Richardson et al. (1985b); Wartzok et al. (1989). 250 However, bowhead whales have also been sighted within 800m of suction dredgers (which can produce noise levels of 180dB at 380Hz; Perry, 1998), when over km from dredger noise levels of 120dB recorded (Richardson et al., 1985b; Richardson et al., 1990). Therefore, although dredging is certainly be a substantial source of underwater noise, the reactions of the whales to noise sources, and the circumstances in which they show these reactions, needs further investigation. 251 Shrimpton and Parsons (2000).
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1.3.2.1.7. Windfarms
In order to provide a source of renewable energy for the UK, there has been considerable investment in the development of alternative technologies and, in particular, windfarms. Due to competition over land use, land-based windfarms are becoming harder to site, therefore attention has become focused on marine windfarms. Although, on the one hand, being a renewable source of energy, windfarms have a positive environmental impact, on the other they could possibly have a negative impact on cetaceans due to the noise they produce and possible impacts on habitats and the marine ecosystem in general.252 Their potential to displace animals is one concern and one that it is particularly difficult to gauge, since so little is known about current cetacean distributions around the UK.
When in operation, windfarms produce a considerable amount of low frequency noise253 254 (eg 80-110 dB for details see Gill, 2005). However, the construction of windfarms also produces considerable amounts of marine noise (260 dB), likewise the laying of submarine cables to service the windfarm site (176 dB).255 In fact, a study funded by a UK statutory authority investigated the possible effects on cetaceans (and marine fish) from noise and vibrations of offshore windfarms and determined that there would be significant effects during construction, with disturbance reactions likely to a distance of several kilometers.256 Close to windfarm construction (within 100 m) it was estimated that noise levels might be so severe that cetaceans may suffer acoustic trauma.257
Disturbance reactions by cetaceans to noises produced by windfarms have also been documented. Researchers played back recordings of noises produced by a 2 MW wind turbine (frequency <800 Hz)258 and reported that the distance between harbour porpoise surfacings and the sound source significantly increased, and there was a significant increase in porpoise echolocation rates, thus indicating disturbance of the harbour porpoises by windfarm noise.259 This disturbance occurred even though, according to hearing sensitivity tests conducted on captive porpoises, the animals should not have been able to detect these low frequency sounds.260
Another study monitored harbour porpoise acoustics both before and during construction of a 166 MW wind farm in the western Baltic Sea. The research discovered that porpoises were less frequently encountered by acoustic methods during the construction of the wind farm. In addition, during the pile driving phase of construction, porpoises were excluded from the study area for 27 hours, before returning. This study demonstrated a significant effect of windfarm construction on porpoises, in particular an extremely negative reaction to the noise produced by pile driving activity.261
1.3.2.1.8. Military activities
Of all the sources of marine noise, the potential of military-related noise, in particular military active sonar, is probably the most contentious and controversial. Several studies have linked military sonar to cetacean strandings in several areas in the world including the Canary Islands, Greece, Spain, the US Virgin Islands and the Bahamas.262 Typically these strandings have been linked to mid-frequency (c. 3-7 kHz) sonar, and upon post-mortem examination many animals have been found with haemorrhaging in the inner ears and cranial air spaces; lesions consistent with impulsive trauma, i.e. intense, loud sound.263 Lesions suggestive of decompression sickness (the “bends”) have also been reported (See Section 1.3.2.2.3).264
In addition to these strandings events, behavioural changes (i.e. changes in vocalisations) have been reported in sperm whales and long-finned pilot whales exposed to military sonar.265
252 Gill (2005). 253 1-400Hz. 254 Hoffman et al. (2000); Fristedt et al. (2001). 255 Nedwell et al. (2003); Nedwell and Howell (2004). 256 Ibid. 257 Ibid. 258 Koschinski et al. (2003). 259 Ibid. 260 Ibid. 261 Henriksen et al. (2004). 262 Vonk and Martin (1989); Simmonds and Lopez-Jurado (1991); Frantzis (1998). Frantzis and Cebrian (1999), Balcomb and Claridge. (2001); Evans and England (2001); Frantzis (2004); Taylor, et al. (2004). 263 Balcomb and Claridge. (2001); Evans and England (2001). 264 Jepson et al. (2003); Fernández, et al. (2004); Fernández, et al. (2005); Jepson et al. (2005). 265 Watkins et al. (1985); Rendell and Gordon (1999).
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The emerging issue of military sonar and its impacts on cetaceans is discussed in a later section of this report (See Breakout Box – Noise pollution and the precautionary principle). In particular, the potential issues relating to mid-frequency active sonar, and to new types of low frequency active sonar266 being introduced on UK naval vessels, will be discussed. It should be noted, however, that sonar is not the only source of underwater noise produced by military activities (Table 3). Submarine-to-submarine communications systems could also be a substantial source of submarine sound267 as could explosives used in military tests and live firing exercises (Table 3).268 Military exercises also involve large numbers of vessels of different types, all of which produce noise.
Indeed, in the UK, statistically significant decreases in minke whale sightings have been reported during naval exercises in Scotland,269 presumably a disturbance effect resulting from a combination of noise sources including shipping-related noise and active sonar use.
There are a number of submarine and naval vessel exercise areas in UK waters, particularly in the coastal waters of Scotland,270 including a submarine testing site in Gairlochhead, near Glasgow. Clustered around this particular site have been a number of northern bottlenose whale (Hyperoodon
ampullatus) strandings271 over the past few decades. A torpedo testing range in the Sound of Raasay272 in Scotland is also adjacent to the site of an unusual occurrence in shallow waters (less than 10m) of two normally deep water (i.e. >250m) northern bottlenose whales in 1998273. A missile range on South Uist in the Outer Hebrides fires missiles into the western waters of Scotland, and this area has a high number of sperm whale and Cuvier’s beaked whale strandings associated with it.274 Likewise, Scotland is also the location of several live firing ranges, such as Cape Wrath, where live ordinance is used in areas which are also utilised by a variety of cetacean species.
In a bid to reduce the impacts of naval activities on cetaceans in the UK, the Royal Navy has produced a code of conduct for military vessels.275 However, due to the classified nature of military activities and the reluctance of the UK authorities to provide scientists with information on ship movements, gathering information on naval sound source use in order to compare this with data on the distribution and behaviour of cetaceans has been problematic.276 This, together with a lack of a knowledge of marine mammal abundance and distribution,and a limited range of on board monitoring systems for cetacean presence during naval and other military activities, together with a lack of independent oversight and monitoring by cetacean experts during military excercises, makes assessing the extent of impacts of military-produced noise sources on UK cetaceans extremely difficult at the present time.
Table 3. Military sources of high intensity noise.277
266 As these new systems use low frequencies, the sounds produced by these systems have the potential to travel much greater distances, and effect more individual cetaceans, than higher frequency sonar systems. There are also concerns about the impacts of these systems on baleen whales, which are believed to be more sensitive to low frequency sounds. 267 Such systems produce sounds of 5-11 kHz at a source levels of 180-200 dB [Greene and Moore (1995)]. 268 i.e. 267dB with frequencies ranging from 45 Hz - 7.07 kHz [Greene and Moore (1995); Evans and Nice (1996)]. 269 Parsons et al. (2000) 270 Parsons et al. (2000). 271 See stranding locations summarized in Shrimpton and Parsons (2000). 272 i.e. the British Underwater Test and Evaluation Centre, 273 Simmonds (1999). 274 See stranding locations summarized in Shrimpton and Parsons (2000). However, it should be noted that this high rate of strandings on South Uist may be more likely associated with the ease with which stranded cetaceans may be sighted on the beaches of these islands, and the position of the islands directly adjacent to the deeper waters of the Atlantic Ocean. The strandings nonetheless indicate a large number of deep diving, potentially sound vulnerable, cetacean species occur in this region, which may be more vulnerable to the high intensity noise produced during missile firing exercises. 275 See Shrimpton and Parsons (2000) and Parsons et al. (2000). 276 For example, see Barry (2004). 277 Greene and Moore (1995); Parsons et al. (2003).
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Activity Frequency range
(kHz)
Source level (dB re 1µPa)
Search and surveillance 2-57 230+ Mine & obstacle avoidance 25-200 220+ Weapon mounted sonar 15-200 200+ Low Frequency Active Sonar (LFAS) used by NATO. 0.25-3.0? 230+ Surveillance Towed Array Sensor System (SURTASS) Low Frequency Sonar (LFA)
c. 0.1-0.5 kHz 215-240
SONAR 2087 (Royal Navy Low Frequency Sonar System) c. 0.1-0.5 kHz 200+
1.3.2.1.8. Acoustic Deterrent Devices [ADDs]
Acoustic Deterrent Devices (often referred to as ‘pingers’) are noise-producing devices designed to be attached to fishing nets to make cetaceans aware of the net’s presence, or to encourage them to avoid areas where nets are set (See Section 1.2.1 and Section 2.3.2). It should be noted that there is a major difference between Acoustic Harrassment Devices (AHDs) (See Section 1.3.1.5) and Acoustic Deterrent Devices (ADDs). ADDs typically have a source level several orders of magnitude lower than AHDs278 and it could be argued that any disturbance they cause to cetaceans may be counteracted by the reduced levels of bycatch related mortality that results from their use.279 There are concerns that widescale use, may however lead to large areas of the ocean becoming ensonified. Another issue is that the effectiveness of ADDs relies on marine mammals hearing the devices, and other sources of marine noise may mask the sounds produced by ADDs, rendering them ineffective. Therefore, conservation efforts to reduce bycatch should consider the indirect effects of underwater noise on the effectiveness of bycatch mitigation.
1.3.2.2. Impacts on cetaceans
The ways in which sound can be detrimental to cetaceans can be broadly categorised into three main areas:280 (a) Behavioural changes;
(b) Acoustic trauma; and
(c) Stress.
These three categorises of impact are discussed below.
1.3.2.2.1. Behavioural changes
“Disturbance” with respect to cetaceans could be defined as changes in patterns of normal behaviour and habitat use which are the result of an outside agency, i.e. human activities. Various sources of noise have been documented to cause disturbance to cetaceans including seismic surveys (Section 1.3.2.1.2),281 oceanographic research (Section 1.3.2.1.4),282 fish farm predator deterrent devices (Section 1.3.2.1.5),283 dredging (Section 1.3.2.1.6),284 windfarms (Section 1.3.2.1.7),285 and military sonar286 and naval exercises287 (Section 1.3.2.1.8).
However, most research on disturbance of cetaceans by human activities has investigated disturbance of cetaceans by shipping traffic. A wide variety of cetacean species have displayed changes in patterns
278 Typically less than 150dB for ADDs, verses 180dB and higher for AHDs. 279 For example, Barlow and Cameron (2003) report a significant reduction in both seal and cetacean by-catch in the Californian drift gill net fishery, as the result of ADD use. 280 Simmonds and Dolman (1999). 281 Gould and Fish (1998); Stone (2003). 282 Bowles et al. (1994); Calambokidis (1998); Frankel and Clark (1998); Frankel and Clark (2000); Frankel and Clark (2002). 283 Olesiuk et al. (1996); Taylor et al. (1998); Johnston and Woodley (1998); Morton and Symonds (2002); Johnston (2003). 284 Bryant et al. (1984); Richardson et al. (1985a); Richardson et al. (1985b); Richardson et al. (1990); Wartzok et al. (1989). 285 Koschinski et al. (2003); Henriksen et al. (2004). 286 Watkins et al. (1985); Rendell and Gordon (1999). 287 Parsons et al. (2000).
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of habitat use, even ceasing to utilise critical habitat completely, as the result of the presence of boat traffic. These species include the Amazon river dolphin (Inia geoffrensis),288 Ganges river dolphin (Platanista gangetica);289 tucuxi (Sotalia fluviatilis); harbour porpoise (Phocoena phocoena)290 and bottlenose dolphin (Tursiops truncatus).291 Displacement from habitat due to boat-related disturbance has also occurred with baleen whales such as the humpback whale (Megaptera novaeangliae)292 and the gray whale (Eschrichtius robustus).293
Disturbance by boat traffic has also resulted in observable behavioural changes, such as increases or decreases in diving times, in many cetacean species: the Vaquita (Phocoena sinus);294 bottlenose dolphin;295 finless porpoise (Neophocaena phocaenoides);296 Indo-Pacific humpback dolphin (Sousa
chinensis);297 Irrawaddy dolphin (Orcaella brevirostris);298 humpback whale (Megaptera
novaeangliae);299 bowhead whale (Balaena mysticetus);300 fin whale (Balaenoptera physalus)301 and blue whale (Balaenoptera musculus).302
Other behavioural changes also observed include increased swimming speeds,303 increased incidences of aggressive behaviour,304 attempts to physically shield young ,305 nursing females grouping together with other females,306 increases in surfacing synchrony307 and alterations in acoustic behaviour and vocalisations.308
Whale-watching boats have been associated with changes in cetacean behaviour,309 and as these vessels target areas of high cetacean abundance, the relative effects of this disturbance would be increased. Moreover, high-speed motor boats seem to promote stronger reactions from cetaceans than slower moving vessels, even if the slower boats emit higher intensity noise.310 For example, bottlenose dolphins in UK waters demonstrated stronger aversive reactions to high-speed motor boats than other classes of vessels,311 as did beluga whales in the St Lawrence estuary312 even though the Canadian beluga whales noted in this second study, actually showed behavioural changes in response to the vessels despite received sound levels being so low that researchers considered that they would be barely perceptible to the beluga whales.313 Baleen whales have also been reported to show increased negative responses to faster moving vessels.314
288 Leatherwood et al. (1991). 289 Smith (1993). 290 Evans et al. (1994). 291 Allen and Read (2000). 292 Kaufman and Wood (1981); Baker et al. (1982); Baker et al. (1983); Glockner-Ferrari and Ferrari (1985); Green (1990). 293 Reeves, 1977; Bryant et al. (1984). 294 Silber et al. (1988). 295 Nowacek et al. (2001). 296 Beasley and Jefferson (2000). 297 Pilleri and Gihr (1974); Karczmarski et al. (1997); Karczmarski et al. (1997); Ng and Leung (2003). 298 Kreb and Rahadi (2004). 299 Baker et al. (1982); Baker et al. (1983); Dean et al. (1985); Bauer, 1986; Bauer and Herman (1986); Bauer et al. (1993); Green and Green (1990). 300 Richardson et al. (1985a); Richardson et al. (1985b); Wartzok et al. (1989). 301 Edds and MacFarlane (1987). 302 Ibid. 303 Which has been reported in the bottlenose dolphin (Nowacek et al., 2001); beluga whale (Delphinapterus leucas; Edds and MacFarlane, 1987); killer whale (Orcinus orca; Kruse, 1991); minke whale (Balaenoptera acutorostrata; Edds and MacFarlane, 1987); bowhead whale (Richardson et al., 1985a; Richardson et al., 1985b) and fin whale (Edds and MacFarlane, 1987). 304 Payne (1978); Dean et al. (1985); Bauer (1986); Bauer and Herman (1986); Bauer et al. (1993). 305 Karczmarski et al. (1997). 306 Ibid. 307 Hastie et al. (2003a). 308 Alterations in vocalisations in respose to boat traffic has been reported in species such as the bottlenose dolphin (Buckstaff, 2004); Indo-Pacific humpback dolphin (Van Parijs and Corkeron, 2001); killer whale (Foote et al., 2004); humpback whale (Norris, 1994) and grey whale (Dalheim, 1987). 309 Such whale-watching associated behavioural changes include alterations in cetacean surfacing behaviour (Young, 1989; Gordon et al., 1992; Heimlich-Boran et al., 1994; Janik and Thompson, 1996; Stone et al., 1992; Lusseau, 2003a), acoustic behaviour (Scarpaci et al., 2000) and group size (Crosti and Arcangeli, 2001) or group cohesion (Aguilar et al., 2001), swimming speed (Aguilar et al., 2001) or direction (Cawthorn, 1992; Scheidat et al., 2004), feeding/resting patterns (Crosti and Arcangeli, 2001; Lusseau, 2003b; Constantine et al., 2004) or an increased prevalence of aggressive behaviours (Heimlich-Boran et al., 1994). 310 Evans et al. (1992). 311 Evans et al. (1992); Goodwin and Cotton (2004). 312 Stewart et al. (1982). 313 Ibid. 314 For example, humpback whales moved out of critical habitat on days when fast boats were operating nearby (Green, 1990), northern right whales (Eubalaena glacialis) avoided faster moving vessels in the Bay of Fundy (Goodyear, 1989) and gray
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Many of the above disturbance reactions are short-term, and sometime subtle. This raises a number of questions: How do such reactions actually impact the cetaceans in the longer term? Are these impacts biologically significant and will they cause a decrease in the health of the cetaceans disturbed? It could be that the “behavioural responses to human activities may be adaptive, but not necessarily detrimental.”315
Studies on anthropogenic disturbance to free-ranging cetaceans have been severely limited by a lack of long-term studies that evaluate cumulative impacts, as well as an understanding of how an undisturbed population behaves. There are so few areas where cetaceans are not exposed to anthropogenic noise or other types of activity that we barely have a normal “baseline” cetacean population against which we can compare the behaviour of disturbed animals.316
Another limitation is that one area of research on disturbance to cetaceans has been particularly neglected, i.e. how these disturbances translate into physiological changes317 and, possibly due to the effects of chronic stress (see Section 1.3.2.2.4), into more population level effects such as impacts on reproductive rates, immune system function, and possibly increased mortality rates.318 One of the problems is that research studies on cetacean reactions to disturbance are relatively short-term, and in order to discover impacts to health, reproduction and survival, research projects that are long-term, even lasting decades, may be required.319
However, recent research has shown that there could indeed be a link between disturbance and population level effects. For example, an Australian research project investigating bottlenose dolphin calf survival rates, and reproductive data for known females, discovered that female reproductive success decreased with cumulative exposure to boat traffic.320 Indeed, other studies on whale-watching activities show i) how long term meaningful studies may be conducted (see helpful review by Bejder and Samuels, 2004); and, ii) how seemingly subtle behavioural responses may hide population level impacts.
Finally, although there are many documented reactions of cetaceans to human disturbance, especially disturbance related to boats, it should not be assumed that a lack of any observable reaction by the animals indicates the absence of any impact.. Research has suggested that when disturbed, animals that have fed adequately and are in good health, may be the only animals that show a reaction, whereas animals that are ill fed or otherwise not at full fitness, may not show a reaction at all.321 The implication is that animals that are better fed, or in better condition, can stop feeding sooner and move farther from habitats than animals that are in marginal condition.322 Thus there is need to consider the animals that are at greatest risk, rather than the animals that show the clearest reaction, when evaluating human disturbance (i.e., less response to anthropogenic activities does not necessarily mean less impact on animals).323 This concept has been expressed by other cetacean researchers324 i.e. that marine mammals may remain in highly disturbed areas if there are no suitable alternative locations. If they remain in such disturbed areas, chronic anthropogenic ensonification could result in high levels of stress (see Section 1.3.2.2.4) which could lead to the debilitation of, and have health impacts on, the cetaceans.
In the past, scientists have assumed that lack of a reaction to a disturbance indicates habituation to, or no effect of, the activity. However, using the terms “habituation, sensitisation and tolerance” with
whales in Mexico exhibited stronger reactions to faster moving vessels (Swartz and Cummings, 1978; Swartz and Jones, 1978; Swartz and Jones, 1981). 315 Orams (2004), p. 19. 316 Bejder and Samuels (2004) 317 Ibid. 318 Orams (2004). 319 Corkeron (2004b); Bejder and Samuels (2004); Orams (2004). 320 Bejder (2005). 321 Beale and Monaghan (2004). 322 Ibid. 323 Ibid. 324 Brodie (1981); Richardson; (1995).
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respect to cetaceans and anthropogenic activities “can lead to misinterpretation of research findings with unintended and potentially dire consequences for wildlife communities”.325
1.3.2.2.2. Acoustic trauma
High energy intense sounds, can produce pressure waves which have the potential to cause direct tissue damage, especially to tissues in the ear. Such damage can cause permanent or temporary deafness, or more correctly, causes shifts in the sound threshold level at which an animal is able to hear a particular frequency, i.e. faint sounds are less easily detected. Such shifts are termed Temporary Threshold Shifts (TTS) or Permanent Threshold Shifts (PTS). To calculate the likely impact of sound (in terms of acoustic trauma) has traditionally used data on TTS and PTS in other species (e.g. in humans noise levels of 155 dB can cause permanent damage) and extrapolated from these data using sensitivity thresholds calculated from audiograms of captive cetaceans. For example, using these methods for beluga whales sound levels of 140 dB could cause TTS, i.e. decreased sensitivity to sound, with permanent damage to auditory systems (PTS) at between 195-210 dB.326 These threshold levels are dependent, however, on the frequency of the sound and also the duration of exposure.
However, there are several flaws with this means of calculating impacts. For example, to date there is only information on the hearing abilities of eleven species of cetacean and for most of these species data is from only one or a small number of animals.327 As there could be considerable individual variety in hearing abilities of cetaceans, particularly if there are differences according to sex and age,328 such a small sample size may lead to incorrect assumptions about hearing abilities. For example, using hearing sensitivity data, based on a study of one or two older male animals to extrapolate potential hearing damage caused by a sound source, would seriously underestimate the sensitivity of free living cetaceans to the sound source.
The studies on hearing sensitivity also use animals which have often been in captivity for long periods of time. The captive environment is a particularly noisy one, and many of the subject animals have also been exposed repeatedly to high levels of noise during sound-related experiments. Some medical treatments animals receive in the captive environment may also lead to hearing loss.329 Unsurprisingly, several captive animals have been found with impaired hearing.330 Thus the use of captive animals, who may have already suffered some PTS, generates flawed data.
Bearing this in mind, it is perhaps not surprising that there is growing evidence of wild cetaceans showing adverse reactions to sounds at received levels that captive-animal studies deem would not be disturbing, or cause any impact for the species concerned.331
Another issue is that hearing sensitivity tests frequently use pure tones (i.e. sounds of just one frequency), a type of sound animals would not encounter in the wild. It is possible that cetaceans have greater sensitivity to sounds which are biologically relevant (i.e. sounds which they are adapted to hear).332 This may have implications for some sound types, for example Low Frequency Active Sonar which, in the case of the US system,333 actually sounds very similar to the sounds produced by cetaceans. Animals may also become more sensitive to sounds that they associate with threats, for example fast boats capable of causing injury. Thus animals may be more sensitive than predicted to such sound types.
For cetacean species where hearing sensitivity is unknown, extrapolations are made using other species, and these are often adjusted according to the known frequencies of vocalisations produced by the particular species of concern. Such extrapolations are again problematic as animals may have excellent hearing capabilities outside the ranges in which they produce vocalisations. For example, a rehabilitated gray whale calf was discovered to have hearing capabilities in frequencies much higher than had, based on vocalisation data, previously been assumed.334
325 Bejder, 2005, abstract. 326 Richardson et al. (1991); Gordon and Moscrop (1996) and see also Dolman and Simmonds 1998. 327 Nachtigall et al. (2000). 328 Typically, males and older animals are more likely to loose hearing ability (Ridgway and Carder, 1997). 329 Finneran et al. (2005) 330 Ridgway and Carder (1997); Brill et al. (2001); Finneran et al. (2005) 331 Findley et al. (1990); Gould and Fish (1998); Gould and Fish (1999); Stone (1998); Koschinski et al. (2003). 332 International Whaling Commission (2004). 333 LFA SURTASS. 334 Ridgway and Carder (2001).
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In short, there are many flaws in the current methods for estimating potential source levels that could cause TTS and PTS in cetaceans. Particularly as it is known that chronic exposure to noise can cause TTS and PTS at lower received levels of sound, but there has been no research into this chronic effect. Any TTS or PTS will impact upon cetacean health as it could severely compromise abilities to communicate, forage and navigate in their environment – infact PTS could effectively be lethal if it left animals “blind” in the acoustic environment in which they live.
There may also be cumulative and synergistic effects caused by anthropogenic activities. For example it was recently discovered that certain pollutants can cause auditory tissue damage.335 Such issues also need investigating.
However, using the probability of a cetacean suffering TTS or PTS as the only measure by which noise can cause biologically significant or health threatening effects is very dangerous. For example, strandings resulting from sonar exposure have occurred at sound levels orders of magnitude lower than levels that would be likely to cause even TTS.336 Certainly, with respect to sonar related impacts, behavioural or physiological changes may lead to stranding and ultimately mortality, and this can occur at levels much lower than those which might cause acoustic trauma. It is also worth noting that floating bodies were recently recovered around the Canaries and it is hypothesized that these deaths were the result of military activities. This means that the animals that actually come ashore and strand may just be the tip of the iceberg!337
1.3.2.2.3. Decompression sickness
Several mass stranding events over the past few years have been linked or associated with naval sonar activities.338 Initially it was suggested that a stranding of beaked whales in the Bahamas was perhaps the result of the sonar frequencies causing the reverberation of the air spaces within the skull of the stranded whales.339 However, the discovery of bubble-like lesions and fat emboli in the tissues of cetaceans that had stranded in the Canary Islands coincident with naval exercises suggested something different.340 European veterinarians and whale biologists conducted autopsies on fourteen beaked whales that stranded four hours after a 2002 NATO exercise,341 and a further three that had stranded after a 2004 exercise,342 as well as various dolphins stranded in the UK.343 The lesions observed during the autopsies were similar to those caused by decompression sickness, or “the bends”, particularly in the beaked whales.344
It used to be thought that cetaceans possessed physiological adaptations to avoid getting decompression sickness.345 However, scientists have proposed that beaked whales (and perhaps other deep diving species) have extremely high levels of dissolved nitrogen in their blood. Normally these animals spend so little time at the surface, and thus so little time exposed to low pressure, that nitrogen stays dissolved in the blood, avoiding the formation of tiny nitrogen bubbles that block blood vessels and cause the bends. However, it’s been suggested that sonar pulses either cause nitrogen to come out of solution due to pressure changes,346 or that the noise of the sonar causes an aversive behavioural reaction in whales, making them quickly come to the surface or enter shallow waters. Here they start to depressurise rapidly, and the bends-like lesions occur.347
The theory has been criticised, primarily on the grounds that the bends causes different types of lesions in humans, and not bubbles in the liver as observed in stranded beaked whales.348 In particular, critics of the beaked whale strandings studies have noted that for decompression sickness “chronic lesions are
335 Song et al. (2005). 336 For example, it is very unlikely that the stranded beaked whales in the 2000 Bahamas incident were exposed to received sound levels greater than 160dB – levels which were 100 times quieter than levels previously thought safe “safe” for cetaceans by the US Government (International Whaling Commission, 2004). 337 Fernandez et al (2005) 338e.g. Bahamas (Evans and England, 2001); Taiwan (Brownell et al. 2004); Canary Islands (Espinosa et al., 2005) 339 Balcomb and. Claridge (2001). 340 Jepson, et al. (2003). 341 Jepson, et al. (2003); Fernández, et al. ( 2005a). 342 Fernández, et al. ( 2005b). 343 Jepson et al. (2003); Jepson et al. (2005b). 344 Jepson et al. (2003); Fernández, et al. ( 2005a); Jepson et al. (2005b). 345 For example, Evans (1987), pp. 6-7. 346 Houser et al. (2001); Crum et al. (2005). 347 Fernández et al. (2004); Fernández et al. (2005a). 348 Piantadosi and Thalmann (2004).
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found only in the long bones and central nervous system”.349 However, the veterinarians, pathologists and whale biologists who investigated the Canary Islands beaked whales stated that they did not investigate bone tissue, and only investigated the central nervous system in two animals. They could not say that there were no such lesions in these tissues of the whales, but they noted that there were “acute, systemic and widely disseminated lesions consistent with, but not diagnostic of [decompression sickness]”350 and stated that large numbers of gas bubbles in the vessels of the liver and other lesions observed have, indeed, been reported as a symptom of the bends in humans.351
Furthermore, a subsequent paper on sperm whale bones did report lesions associated with decompression sickness, adding perhaps more evidence to support the noise-induced/provoked bends scenario.352 Although similar lesions were reported from the bones of an animal that died 111 years ago, i.e. long before the invention of military sonar, the authors of the study noted that bone damage caused in recent years could be due to cetaceans being driven to the surface rapidly by underwater noise.353 A commentator on this study also noted that although sonar was not around 111 years ago, commercial whaling certainly was354 and forced surfacing of whales were certainly a technique that was used by these operations.355 Such methods might theoretically cause rapid depressurisation and the onset of the bends as effectively as being forced to the surface by sonar-related noise.
Another scientific paper brings up issues which may compound the effects of sonar on whales.356 The paper suggests that the effects of pressure on the central nervous systems of diving cetaceans may result in “hyperexcitability”357 of the nervous system and that “the repetative high intensity noise
produced by sonar pinging may [cause more nerve cell stimulation] under high-pressure conditions
than on the surface.”358 Also, the result of increased nervous stimulation may result in “secondary
responses that may impair orientation, or maintainance of the regular diving response of the
cetaceans.”359 Thus, exposure to sonar, or other high intensity noise sources while a cetacean is submerged, particularly if a great depth “may give rise to an enhanced startle response leading to
disturbance in normal behaviour. A severe startle response, possibly involving fear or panic, may
cause stranding as a flight response”. 360
Thus, after being exposed to sonar, a cetacean’s panicked flee to the surface and subsequent stranding, could then lead to conditions which in turn cause decompression sickness in the cetacean. The sonar exposure plus the effects of depth-induced pressure on the nervous system, may actually enhance and exaggerate the behavioural reactions of cetaceans to noise.
The observation that cetacean strandings coincident with naval sonar use seem to be occurring after levels of sound exposure much lower than would cause physical damage to cetacean auditory systems, does suggest that sonar exposure causes behavioural rather than physiological changes.361
1.3.2.2.4. Stress
Prolonged exposure to high levels of noise can result in stress and debilitation. For example, researchers have reported increases in activity of adrenal and defence-related endocrine glands in relation to noise exposure.362 Several marine species (including both fish and shrimp) have displayed reduced growth and reproductive success when exposed to chronic noise levels 20 to 30 dB above background levels.363 Thus, noise stress effects could impact upon cetacean prey species. With respect to cetaceans themselves, it has been suggested that prolonged exposure to high levels of noise, and the resultant chronic activation of hormonal complexes from the stress entailed, could lead to reduced
349 Page 1 in ibid. 350 Page 1 in Fernández et al. ( 2004). 351 For example see Francis and Mitchell (2003). 352 Moore and Early (2004). 353 Ibid. 354 Mitchell (2005). 355 Oshumi (1980); Tonnessen and Johnsen (1982). 356 Talpalar and Grossman (2002). 357 Ibid., p. 136. 358 Ibid., p. 137. 359 Ibid., p. 137. 360 Ibid., p. 137. 361 International Whaling Commission (2005a). 362 Welch and Welch (1970). 363 Banner and Hyatt (1973); Lagadere (1982).
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cetacean health364, 365 and acute or chronic stress in cetaceans can ultimately lead to premature mortality.366
There is growing concern that cetacean scientists should be conducting more research into how noise and disturbance-related stress affect cetaceans, and how such stress can lead to decreases in successful reproduction, immune system suppression, and ultimately increased rates of mortality.367 As noted previously (Section 1.3.2.2.1), such research into chronic stress effects would require long-term projects (as most research on the impacts of human activities tend to be short-term368 and relatively superficial). Desk-bound projects using modelling techniques with surrogate data from other species or different populations (rather than gathering empirical data from the species and situation in question), could go some way to answering questions about stress effects on cetaceans. This may require a major re-think in the way that funding bodies provide cetacean conservation research funding.369
However, in the interim, one approach may be to develop a set of indicators or indices of stress levels in cetaceans; both behavioural indicators (such as changes in respiration rates, inter-animal distances and activity budgets) and population level indicators (such as reproductive rates, stranding rates and mortality rates).370 These indicators could then be used to monitor “stress levels” in key cetacean populations.
1.4. CLIMATE CHANGE Global warming, as the result of increasing concentrations of “greenhouse” gases (particularly carbon dioxide) in the atmosphere trapping heat on the surface of the planet, has become an international environmental issue. The fact that land surface temperatures, as well as oceanic temperatures, are increasing, and the role anthropogenic emissions have played in causing this increase, has been clearly confirmed by researchers using a variety of techniques, including satellite imagery.371 During the 20th century there was an observed 0.6oC increase in global temperatures.372 Based on current rates of production, researchers are estimating a doubling of atmospheric carbon dioxide, from pre-industrial levels by 2050.373 This increase in carbon dioxide will be accompanied by at least a 1.9°C rise in the current temperature and estimates of temperature increases have ranged up to 11.5°C.374 Even if greenhouse gas production is capped at present levels immediately, an increase of at least 0.6oC will probably occur, and by the year 2400 the increase would be 2 to 6oC.375 In conjunction with the temperature rise, there will also be an increase in sea level, due to increased melting of ice and expansion of warming water. In the 20th century, there was a 15-20 cm sea level rise which was linked to global warming.376 Even if carbon dioxide emissions were immediately stabilised there would be at least a further 14-16 cm minimum increase in sea level, with a possible subsequent increase of 25cm per century.377 Without this stabilisation, greater sea level rises will occur, with estimates of up to 88cm in the next century.378 It should also be noted that most models and predictions of sea level rise do not take into account increased melting and disintegration of ice shelves in the polar regions into account, although these factors could well cause even greater increases in sea level.379 In addition to, and perhaps exacerbating the effects of, rising sea levels, climatologists have also predicted
364 Seyle (1973); Thomson and Geraci (1986); St Aubin and Geraci (1988). 365 Specific stress related ailments in mammals can include nutritional problems, stomach ulceration, arteriosclerosis, reproductive failure and suppression of the immune system (Brodie and Hanson, 1960; Radcliffe et al., 1969; Moberg, 1985; Cohn, 1991; Smith and Boyd, 1991). 366 Small and DeMaster (1995). 367 Orams (2004). 368 Corkeron (2004b); Orams (2004). 369 Ibid. 370 Orams (2004). 371 Kerr ( 2005); Hansen et al. (2005). 372 Meehl et al. (2005). 373 Pelley (2005). 374 Ibid. 375 Hansen et al. (2005); Meehl et al. (2005); Wigley (2005) 376 Meehl et al. (2005). 377 Meehl et al. (2005); Wigley (2005). 378 Hansen (2005). 379 Ibid.
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an increase in wintertime storminess and precipitation in some regions of the North East Atlantic, including the UK.380 Rising sea levels, together with increased winter rainfall and storm surges may also inundate polluted coastal areas. Such areas may include landfill sites or agricultural land, and hence there is a real possibility that chemical pollutants and debris may be conveyed into the marine environment by these means. Other possible effects of climate change include increases in the acidity of the ocean due to higher levels of dissolved carbon dioxide (which forms carbonic acid).381 Indeed, in August 2004, a meeting was held in the UK to develop a research plan to investigate this issue. Simultaneously, the Royal Society announced that they will be launching an inquiry into the possible ecosystem effects of this increase in acidity.382 There is concern that increases in acidity could seriously deplete coral and calcareous plankton populations, as the carbonic acid effectively dissolves their structures. This, in turn could disrupt oceanic ecosystems.383 As oceans become more acidic there is also a corresponding decrease in available oxygen for marine species. Some species, such as cephalopods and deep sea fish, that have a high biological oxygen demand, are likely to be particularly affected as the external carbon dioxide change lowers the pH of their blood, thereby compromising their ability to transport oxygen internally.384 Thus, important prey species of cetaceans, including squid, may be adversely affected if ocean pH reaches a critical level.
A worst case scenario for the effects of global warming was highlighted in the Hollywood movie “The
Day After Tomorrow”, i.e. that global warming leads to the cessation of thermohaline circulation (the movement of water bodies) in the North Atlantic, leading to decreased heat exchange from the ocean to the north Atlantic region, ultimately causing rapid decreases in temperature in the northern hemisphere.385 Although the Hollywood movie is somewhat far-fetched, scientists studying the flow of water and salinities in the North Atlantic have nonetheless reported changes in water flows and salinities over the Greenland-Scotland ridge that are possibly indicative of a weakening of thermohaline circulation and that this issue should not be dismissed and requires further research.386
The effects of temperature increase have certainly been felt in Europe, with summer 2003 being reported as the hottest in Europe since 1500 AD.387 Researchers comparing European temperature trends with greenhouse gas accumulation have again confirmed the role that humans have played in this increase.388 With respect to the UK marine environment, seawater temperatures increased in the last quarter of the 20th century, with temperatures in some sea areas increasing by as much as 1oC.389 It has been estimated that temperatures could increase in UK waters by a further 2oC by 2050,390 or possibly even more in southern UK waters.391 This change in temperatures has already had effects on the distribution of benthic marine species in UK waters.392 In the wider North East Atlantic there have also been major changes in plankton abundance, timing of blooms and distribution in the latter half of the 20th century, again linked to global warming, which in turn have been linked to changes in food webs and declines in larger fish species, such as North Sea cod.393 With respect to cetaceans, the potential effects of climate change are largely unknown. The most likely impacts would result from a change in plankton levels and hence distribution of prey species, which in turn, would be likely to change the distribution of cetacean species.394 Certainly, researchers have shown that changing temperatures, which influence prey species, can have effects on cetacean
380 IPCC (2001). 381 Schiermeier (2004). 382 Ibid. 383 Ibid. 384 Royal Society (2005). 385 Clark et al. (2002). 386 Hansen et al. (2004); Bryden et al. (2005). 387 Stott et al. (2004). 388 Ibid. 389 Sheppard (2004). 390 Hulme et al. (2002). 391 Sheppard (2004). 392 Hiscock et al. (2004) 393 Edwards and Richardson (2004); Richardson and Schoeman (2004). 394 MacGarvin and Simmonds (1996); Mulvaney and McKay (2000).
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behaviour. For example, bottlenose dolphin group size in the Moray Firth is affected by the presence of prey, which in turn is affected by water temperatures.395 A study of a North Sea demersal fish assemblages has also shown that nearly two-thirds of the species studied, including species such as cod,396 are responding to changes in climate by adjusting their preferred latitude or depth in the water column.397 Other principal prey species of cetaceans, such as cephalopods, may also be reacting to climate change, for example the migration patterns of veined squid398 in the English Channel seem to be responding to climatic changes.399 Analysis of stranding records also has the potential to inform us how cetaceans around the UK coastline may be affected by climate change.400 In one analysis,401 researchers discovered that strandings of cold water cetacean species have decreased, and records of warm water species have increased in the UK; a trend which is also supported by survey data.402 This pattern is believed to be consistent with a northward shift of warm water cetacean species. The researchers expressed concerns that as a result of a temperature-induced shift of these warm water species, cold water species, such as white-beaked dolphins (Lagenorhynchus albirostris) might become displaced from their habitat, or even become locally extinct in some areas.403
1.5. PREY DEPLETION Currently, the UN Food and Agriculture Organisation (FAO) considers that 28% of global fish stocks are significantly depleted or overexploited, and 47% are fully exploited. Only 24% of fish stocks are either under, or moderately exploited.404 It also estimates that illegal, unreported and unregulated (IUU) fisheries exceed fishing quotas by 300%.405 Moreover, global fisheries catch estimates have declined by 0.66 million tons/year since 1988; 230 populations of marine fishes have been shown to have suffered a 83% reduction in historical breeding population; large predatory fish (sharks, skates, rays and marlin) biomass is currently estimated to be only 10% of pre-exploitation levels; 55 species of marine fish have lost at least part of their geographical range and 3 species of marine fish have gone extinct over the past two centuries – in general the worlds fish stocks are declining as a result of human over exploitation.406
The effect that human exploitation can have on fish stocks is staggering, for example, fisheries can typically reduce fish community biomass by 80% within just 15 years of exploitation.407
After such exploitation has occurred, there is frequently little recovery of fish stocks. An analysis of over 200 stocks of fish determined that, after exploitation, only 12% of the studied fish stocks showed full recovery and despite conservation measures or fisheries closures, it was not unusual for populations that had declined by more than 60% to exhibit little or no recovery as much as 15 years later.408 This lack of recovery is generally due to poor fisheries management, which is often exacerbated by political pressures to maintain fishing even past the point where takes should cease.
This over-exploitation is also causing alterations in ecosystems. Fish species have shifted from long-lived, high trophic level, fish-eating bottom fish toward short-lived, low trophic level, invertebrate-
395 Lusseau et al. (2004). 396 Gadus morhua. 397 Perry et al. (2005). 398 Loligo forbesi. 399 Sims et al. (2001). 395 MacLeod et al., (2005). 401 Ibid. 402 Ibid. 403 Ibid. 404 Food and Agriculture Organisation of the United Nations (2002) 405 Ibid. 406 Hutchings (2000); Jackson et al. (2001); FAO (2002); Myers and Worm (2003); Omerod (2003); Gewin (2004); Hutchings and Reynolds (2004) 407 Gewin (2004). 408 Ibid.
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eating pelagic fish, so the mean trophic level of commercial species has declined.409 Thus the composition of marine ecosystems changes; an effect that has been most pronounced in the Northern Hemisphere, where most industrialized fishing takes place.410 The nature of the fish in the stock can also change. With fishing pressure on larger animals, there is a genetic change of the fish population, so that fish become sexually mature at a younger age and generally smaller in size.411
Depletion of fish stocks is certainly an issue in UK waters, in particular the North Sea, an area which has experienced long-term fisheries overexploitation.412 At present, there has been no research conducted on whether reduced fish stocks have affected cetacean populations, although effects are likely.413 For example, species may move to other areas, or turn to alternative prey species. 414
Another possible effect of decreased prey abundance particular to cetaceans might be the metabolisation of stored blubber reserves. As mentioned previously (Section 1.3.1.1) cetaceans frequently have high concentrations of lipid-soluble pollutants in their blubber layer, and it is possible that a sudden decline in prey species could result in the rapid release of pollutants into the cetacean’s body, which then, in turn, might lead to suppression of the immune system and susceptibility to disease. Indeed, it is possible that a decrease in food supply may have triggered such a release of pollutants that subsequently led to marine mammal mass mortalities in the Mediterranean and other regions.415
409 Pauly et al. (1998). 410 Ibid. 411 Hutchings (2004); Olsen et al. (2004). 412 Wolff (2000). 413 Mulvaney and McKay (2000). 414 Curran et al. (1996). 415 Simmonds (1992).
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2. CURRENT LEGAL FRAMEWORK
2.1. INTERNATIONAL
2.1.1. United Nations Convention on the Law of the Sea (UNCLOS) The United Nations Convention on the Law of the Sea (UNCLOS) came into force on 16 November 1994. This Convention, to which the UK is a party, was the result of a long process beginning with the 1958 United Nations Conference on the Law of the Sea. This primarily began in response to new technologies that allowed the exploitation of submarine mineral resources, and particularly, a UN General Assemby resolution in 1973 that called for codification of rules of custom relating to the sea.
The Convention defines marine territorial boundaries and the legal rights of coastal states to adjacent waters. Marine waters are defined as several zones and each zone is allocated differing degrees of legal control. The innermost of these zones are internal waters, which include those landward of the low water mark, as well as the mouths of rivers and bays416. Under the Convention, a country has sovereignty over these waters and the resources they contain. The next zone extends twelve nautical miles from the low water mark and the boundaries of internal waters. Within this zone, or territorial sea, the country also has sovereignty, although foreign shipping enjoys the right of ‘innocent passage’ through this zone417. Beyond this zone is the Exclusive Economic Zone (EEZ), which encompasses waters within 200 nautical miles from the coastline. A country has no legal sovereignty over its EEZ, but it does have exclusive rights to exploit the resources contained within it418. Beyond the EEZ are the ‘high seas’, which may be exploited by anyone419. The UK has not actually designated an EEZ but, it has claimed an Exclusive Fishing Zone (EFZ) and, recently, a Renewable Energy Zone,420 which for many practical purposes are equivalent to an EEZ. Cetaceans can be considered a "marine living resource" under UNCLOS421, and the Convention requires that harvesting of fisheries and other marine living resources both in EEZs and on the high seas must be carried out at a sustainable level422. Moreover, the Convention explicitly mentions migratory marine mammal conservation stating that member states must co-operate to conserve, manage and study such marine mammals (and other migratory species) in the EEZ and the high seas423. Furthermore, member states should “co-operate with a view to the conservation of marine mammals
and in the case of cetaceans shall in particular work through the appropriate international
organisations for their conservation, management and study”424. Although member states are obliged to ensure ultimately the conservation of cetaceans in the EEZ and the high seas, they may still commercially exploit marine mammals unless the country has voluntarily signed a statement indicating otherwise. For at least baleen and sperm whales, and it can be argued the other cetaceans as well, one primary appropriate international organisation and competent authority for the conservation and management of these species is the International Whaling Commission (IWC) (see Section 2.1.6).
416 Art. 8. 417 Art. 2, 3 & 17-19. 418 Art. 56 & 58. 419 Art. 87. 420 See http://www.legislation.hmso.gov.uk/si/si2004/20042668.htm. 421 Rose (1996) 422 Art. 61 & 119. 423 Art. 64-65 & 120 424 Art. 65 & 120
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2.1.2. United Nations Convention on Biological Diversity (CBD) In 1992, 159 nations, including the UK, met in Rio de Janeiro at the widely publicised ‘Rio Summit’, to discuss the issue of conserving biodiversity and natural resources. The results of this meeting included The Rio Declaration on Environment and Development and The United Nations Convention
on Biological Diversity (CBD)425. Several articles in the Rio Declaration are of particular relevance to
cetaceans in particular Article 6 which calls on contracting parties to:
“Develop national strategies, plans or programmes for the conservation and sustainable use
of biological diversity”,426 This became translated in the UK as Biodiversity Action Plans (see Section 2.4.4). Article 6 also called on contracting parties to integrate these plans into governmental policies wherever relevant 427. Thus, technically, when government departments conduct activities that effect biodiversity (including military activities or development), biodiversity conservation should be considered in the policy making process. The extent to which this is undertaken in the UK is debateable. As an initial step, parties were requested to identify important components of biodiversity428 in terms of habitats429 and species430 and evaluate and monitor them431 and the threats that they face432. UK Biodiversity Action Plans (BAPs) have been produced for cetaceans (see Section 2.4.4) but their success at stimulating conservation action or research is questionable. The CBD goes on to mention specifically the need and obligation for contracting parties to establish systems of protected areas (or areas where special conservation measures are taken), and also notes the need for the protection and restoration of ecosystems. With respect to species conservation, the declaration calls for parties to aid the recovery of threatened species through the development and implementation of plans or management strategies.433 The BAP process attempts to fulfil this, but its lack of statutory backing has resulted in few resources allocated, no powers to make effective changes and little political will to drive the process forward (see Section 2.4.4). The CBD requires the regulation and management of processes and activities with negative impacts on biodiversity434 along with a process of environmental impact assessment “with a view to avoiding or
minimizing such effects and, where appropriate, allow for public participation in such procedures”435, Strategic Environmental Assessment (SEA) which occurs at a plan level, is currently only being undertaken by the energy sector (see Section 2.3.3). In the UK, Environmental Impact Assessments (EIAs) are completed by many sectors for individual projects with fisheries being the notable and worrying exception to this. Within these processes, public participation is possible to a degree. Although there have been EIAs available for public consultation for the Royal Navy’s new low frequency active sonar system,436 impact assessments for military excercises and other activities are not generally subject to public view or consultation. One principle that comes through strongly from the CBD is the need for application of the precautionary principle, according to which a lack of full scientific knowledge should not be used as a
425 Which was implemented on 29th December 1993. 426 Article 6(a). 427 Signatories are requested to integrate“the conservation and sustainable use of biological diversity into relevant sectoral or
cross-sectoral plans, programmes and policies.” [Art. 6 (b)] 428 Art. 7(a) 429 Key habitats included habitats “containing high diversity” and “ large numbers of endemic or threatened species”, but also habitats that were “ required by migratory species” and of “scientific importance.” [Annex I (1)] 430 Priority species included ones which were: “threatened” or of “ social, scientific or cultural importance” or “importance for
research into the conservation and sustainable use of biological diversity, such as indicator species” [Annex I (2)] under which categories most cetacean species could be placed – as a top predator in the marine environment cetaceans are certainly considered to be a major indicator species for the health of the marine environment (e.g. Wells et al., 2004). 431 Art. 7 (b) 432 Art. 7 (c) 433 The declaration calls for parties to “[r]ehabilitate and restore degraded ecosystems” Art. 8 (f) 434 Art. 8 (I) 435 Art 14(a) 436 i.e. QinetiQ (2002).
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reason to postpone conservation action. Despite the UK government stating that "the precautionary
principle will be applied over both the level of exploitation and methods used. Activities which could
cause major damage to species, populations and ecosystems will be strictly controlled", 437 it is arguable that this has not been followed adequately in practice. High levels of cetacean bycatch and noise pollution from seismic surveys and military activities being examples of this failure (see Breakout Box – Noise pollution and the precautionary principle).
Breakout Box 1 – Noise pollution and the precautionary principle The many sources of noise pollution in the marine environment and their effects were discussed in detail in Section 1.3.2. Although our knowledge and understanding of these effects is in its infancy, particularly when looking at cumulative effects, enough is known for there to be great concern amongst cetacean scientists and managers. The precautionary principle states that:
“where there is a threat of significant reduction or loss of biological diversity, lack of full
scientific certainty should not be used as a reason for postponing measures to avoid or
minimise such a threat”438
Its application in the management of noise producing marine activities is of the utmost importance for cetacean conservation. It is our view that the UK has not been precautionary enough in this regard, at least in relation to the licensing of oil and gas exploration and the development of a new military sonar system.
Oil and Gas
For the past few years Strategic Environmental Assessments (see Section 2.3.3) for oil and gas activities have taken place for different areas of UK seas. It is at this level that decisions can be taken to set aside particular areas from further licensing because they are/may be too sensitive to damage. Year after year noise impacts on cetaceans, particularly from seismic surveying, have been raised as a concern439 that has been acknowledged by the DTI in the following statements inter alia:
“the range of potential behavioural effects and the consequently large potential for cumulative effects,
indicate that all marine mammal populations in the area are likely to be exposed to biologically
significant sound levels”.440
and that:
“…environmental assessment of the noise effects of UK [continental shelf] offshore operations (in
particular, seismic surveys) has been limited by a lack of relevant, reliable data”441
but that such information is:
“…important for overall consideration of management and minimization of adverse effects.”442
Despite this, no areas have been declared ‘no go’ for reasons of cetacean protection because:
“clear cut conclusions on the significance of potential effects of seismic exploration…on marine
mammals, cannot be reached on the basis of available scientific data”.443
Even areas such as the Atlantic Frontier, which is recognised as being of international importance for cetaceans, including several endangered or vulnerable species444 have not been set aside.
When a lack of a precautionary approach in oil and gas exploration evaluations was pointed out to the Government, it was justified on the grounds that a high abundance of cetaceans in areas to be seismically surveyed had been noted in the assessment, and that government guidelines for seismic
437 HMSO (1994) Para. 6.81 438 Convention on Biological Diversity, Principle 15. 439 e.g DTI (2002), DTI (2003), DTI (2004) 440 e.g. DTI (2003), DTI (2004) 441 DTI (2001) 442 DTI (2003) 443 DTI (2004) 444 e.g. fin whale, sei whale and blue whale.
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surveys adequately mitigated any possible impacts445. These guidelines have major flaws (see Breakout Box – Seismic guidelines) and the government itself noted that:
“current mitigation is largely based on “common sense” measures and it is difficult to
establish whether they work and/or could be made more effective.”446
The emphasis appears to be on ensuring oil and gas exploration goes ahead with minimal hindrance rather than acting in a precautionary manner on concerns about known and likely impacts on cetaceans. The flawed guidelines447, the only mitigation measure currently in place, may mitigate against some of the acute impacts of sound, but do not mitigate against the effects of habitat degradation caused by repeated use of this far-travelling and high intensity noise. Nor do they mitigate against the impacts of seismic surveys on cetacean prey species, such as fish and squid, which are known to be vulnerable to seismic survey noise, with studies showing injury or death of these animals as the result of exposure to such noise.448 At worst, this raises questions as to whether the UK is complying with the Habitats Directive. The disturbance caused may have been ruled not to be ‘deliberate’449 but given that some areas have been exposed to a significant amount of seismic activity450 and the effects on cetaceans are likely over a large area, it could be shown to be causing the ‘deterioration and destruction of breeding
sites or resting places’.
Military Sonar
Section 1.3.2.2 (impacts on cetaceans from noise pollution) discusses in some detail the concerns associated with the highly powerful military sonar systems being used and developed by the world’s navies. To summarise our current understanding of the mid-frequency sonar and cetacean issue, a excerpt from the report of an international workshop of the International Whaling Commission on [cetacean] habitat degradation, held in 2004, neatly encapsulates our current understanding of the situation:
“Using comparative correlations in the case of beaked whale mass strandings related to the
use of mid-frequency military sonar, it was evident that some kind of causal relationship
existed. This was initially suspected to be mediated by physical damage to the auditory system,
but more recent studies have suggested that the mechanism may be a result of a behavioural
response to noise altering dive behaviour, and potentially causing lethal bubble formation in
tissues via a ‘decompression sickness’ type mechanism. Thus, the mechanism in this instance
would have a significant impact on mitigation since the received noise level initiating a
behavioural response is predicted to be lower (possibly much lower) than that which would
cause direct physical damage to tissues.”451
The number of cetacean stranding incidents coincident with military activities, and the documented bends-like lesions, do not prove definitively that naval sonars are causing these stranding events, but nonetheless the amount of circumstantial evidence has become quite substantial. Or to use a term often associated with the situation, naval sonars are “a smoking gun”. Indeed, so much so that in 2004, after the Scientific Committee of the International Whaling Commission had discussed the cetacean and noise issue, over 200 of the world’s leading whale biologists approved the statement:
“In conclusion, the Committee agrees that there is now compelling evidence implicating
military sonar as a direct impact on beaked whales in particular.”452
Several international bodies, besides the International Whaling Commission, have recognised that the evidence amassed so far indicates that underwater noise, in particular naval sonar, represents a clear and present danger to cetaceans. In November 2004, at the 3rd Congress of the World Conservation Union (IUCN) a resolution was passed that recognised this issue, and called on member governments
445 See government’s response to concerns (sections 2.2.9(c) & (d), p13-14; section 2.2.10(b), p. 21) in Department of Trade and Industry (2005). 446 Department of Trade and Industry (2002), p. 156. 447 See Breakout Box – Seismic Guidelines 448 Macauley et al. (2003); MacKenzie (2004) 449 Article 12 (1)b – deliberate disturbance of cetaceans is prohibited. R-v-The Secretary of State for Trade and Industry ex parte Greenpeace (1999) ruled than an oil company conducting an activity in the knowledge that disturbance would result, is not deliberately disturbing cetaceans. 450 E.g. DTI(2003) p.137, DTI(2004) p.176 – maps showing coverage of seismic surveys in SEA areas. 451 International Whaling Commission. (2005a), p. 9. 452 International Whaling Commission (2004b), p. 44
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to consider how to limit high intensity sound sources until their effects on marine wildlife (both short and long-term) are better understood.453 They also requested that underwater noise be considered in, for example, the designation of Marine Protected Areas (MPAs), and the construction of the IUCN’s red data lists.454 Importantly the resolution evoked the precautionary principle and asked members to recognise that conservation measures, with respect to underwater noise, should not be postponed due to a lack of full scientific certainty.455
On 28th October 2004 European Parliament passed a resolution that is probably one of the strongest statements by an international body yet on the issue of navy sonar and its impact on cetaceans.
This resolution called on the European Commission and the Member States to:
“adopt a moratorium on the deployment of high-intensity active naval sonars until a global
assessment of their cumulative environmental impact on marine mammals, fish and other
marine life has been completed”;456 and to
“immediately restrict the use of high-intensity active naval sonars in waters falling under their
jurisdiction”;457 as well as to
“set up a Multinational Task Force to develop international agreements regulating noise
levels in the world’s oceans, with a view to regulating and limiting the adverse impact of
anthropogenic sonars on marine mammals and fish.”458
This resolution from the European Union represents a strong statement of concern about the underwater noise issue, in particular the call for a moratorium on new military sonar systems, primarily produced in response to their observed and potential impacts on cetaceans.
What has been the response to this concern in the UK? The Royal Navy conducted a more in-depth assessment of the environmental effects of their new SONAR 2087 system,459 when it was realised that sonar might be an issue for cetaceans. Although this assessment was produced before the issue of gas bubble lesions became widely known, some of this review’s assumptions and conclusions are already out of date, or have been proven to be incorrect. The commissioning of this new sonar system has continued nonetheless.
The International Whaling Commission noted at their 2004 international workshop on habitat degradation:
“The Workshop agreed that it is usually difficult to characterise mechanisms conclusively,
and although establishing cause-effect relationships is an ideal, a weight of evidence
approach should be sufficient to elicit precautionary management action.”460
The precautionary management noted above should be introduced as soon as possible. Currently Environmental Impact Assessment methods largely rely on assessment of physical damage to cetaceans to predict and assess the potential impact of noise producing activities, such as military sonar. At the very least these methods should be scrapped in the face of mounting data that these assumptions are erroneous, and behavioural responses at much lower sound levels are considered as resulting in cetacean injury or death (see Section 1.3.2). The introduction of new types of military sonar, such as lower frequency systems461 should proceed with caution. The low frequency sounds produced by these systems will travel much further than the mid-frequency sonars that are the current focus of concern. Although there is not a definitive link between these systems and mass strandings,462 at the very least the Royal Navy should work with scientists and conservationists to conduct a thorough, and open, assessment of the potential impacts of these sonar systems, both on paper and in the field, and not
453 IUCN (2004). 454 Ibid. 455 Ibid. 456 European Commission (2004). 457 Ibid. 458 Ibid. 459 QinetiQ (2002). 460 Ibid. p. 9. 461 e.g. SONAR 2087 in the UK. 462 Such a result is unlikely to be seen yet either, as these systems are in the process of being tested and not in widespread use. Moreover, there is no monitoring of any impacts on cetaceans apart from a very small (1km in the case of the US system) radius around vessels, a tiny fraction of area that is esonified by these systems, or even cause auditory damage. The Royal Navy’s SONAR 2087 sonar system environmental impact assessment for this system predicts that permenant cetacean auditory damage could occur up to 7km from the source (QinetiQ, 2002) with behavioural impacts occurring at a presumed greater range. Thus, arguably the UK system should have a cetacean exclusion range of 7km at the very least. .
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introduce the widespread deployment of such systems until such an assessment is done to the satisfaction of the marine science community at large.
In addition, all critical cetacean habitats should be made off limits, not only to naval vessels using both mid- and low-frequency sonar systems, but also to insonification by sonar produced sound (as such sound could travel substantial distances from the vessels) at least until the until the effects can be properly assessed and it can be proven, or at least shown that it is highly likely, that sonar will not impact cetaceans in these critical areas.
2.1.3. Convention on International Trade in Endangered Species of
Wild Fauna and Flora (CITES) The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), to which the the UK is a party, came into effect in 1975. The purpose of the Convention is to prevent the exploitation of vulnerable and threatened species by controlling international trade in endangered species of flora and fauna and their products. Species listed on CITES Appendix I are threatened with extinction, may become threatened by trade, and therefore international trade of these species (or their parts) for commercial purposes is banned. Any trade of Appendix I species for non-commercial purposes must be documented with both an export and an import permit. Appendix II listed species are also deemed to be vulnerable, but limited and controlled trade is allowed.
All species of cetaceans in UK waters are listed in either CITES Appendix I or II (Table 4). Primarily, the whale species covered under the IWC are listed under Appendix I, which is in part due to a resolution that recommended unequivocally that commercial trade should be banned for all species covered under the IWC (see Section 2.1.6).463 At the last few meetings of the Conference of Parties to CITES (its decision-making body) the pro-whaling nations have proposed down-listing of northern minke whale populations in the north Atlantic.464
However, in the UK, CITES is implemented via the EC Regulation of Trade in Endangered Species465. All cetaceans are noted under list C1 of this regulation, which means, regardless of their CITES listing, all cetaceans in the UK must be treated as if they are on Appendix I, i.e. commercial trade is prohibited between the UK and other nations.
Table 4. CITES listing of all cetaceans that have been reported in the UK
Common name CITES LISTING
ODONTOCETES Harbour porpoise II* Atlantic white-sided dolphin II* Common bottlenose dolphin II* Fraser’s dolphin II* Risso's dolphin II* Short-beaked common dolphin II* Striped dolphin II*
White-beaked dolphin II*
False killer whale II* Killer whale II* Long-finned pilot whale II* Melon-headed whale II* Narwhal II* Beluga whale II* Northern bottlenose whale I Blainvilles’s beaked whale II* Cuvier’s beaked whale II* Gervais’s beaked whale II*
463 CITES Resolution Conf. 2.9 464 10th Conference of Parties, June 1997, Harare, Zimbabwe (Norway); 11th Conference of Parties, April 2000, Nairobi, Kenya (Norway); 12th Conference of Parties, November 2002, Santiago, Chile (Japan). 465 Council Regulation No. 3626/82
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Sowerby’s beaked whale II* True’s beaked whale II* Sperm whale I Pygmy sperm whale II* MYSTICETES
Northern minke whale I Fin whale I Sei whale I Humpback whale I Northern right whale I Blue whale I
* In the UK these species are treated as if on Appendix I– see text for details.
2.1.4. Convention on the Conservation of Migratory Species of Wild
Animals (CMS)
The UK is also a Party to the 1979 Convention on the Conservation of Migratory Species of Wild Animals (CMS), sometimes referred to as the Bonn Convention, and which came into force for the UK in 1985. The Convention encourages signatories to develop multilateral agreements for species that cross national jurisdictional boundaries466. Most UK cetaceans are highlighted as priority species under the Convention, being listed under Appendix I (migratory species threatened with extinction) or Appendix II (migratory species that would significantly benefit from international co-operation) (Table 5). With respect to cetaceans in Europe, the CMS has helped progress regional conservation agreements for cetaceans in the Mediterranean and Black Seas (ACCOBAMS)467 and the Baltic and North Seas (ASCOBANS). This latter agreement, which obliges Parties to co-operate in order to achieve and maintain a favourable conservation status for small cetaceans in the agreement area, is particularly relevant to the UK and is discussed below (Section 2.1.4.1). The CMS also produces resolutions and recommendations which Parties are bound by, including several recent actions468 on bycatch related issues, which also effect cetacean conservation.
Table 5. CMS listing of all cetaceans that have been reported in the UK
Common name CMS Appendix
ODONTOCETES Harbour porpoise II (North Sea population only) Atlantic white-sided dolphin II (North Sea population only) Common bottlenose dolphin II (North Sea population only) Fraser’s dolphin - Risso's dolphin II (North Sea population only) Short-beaked common dolphin II (North Sea population only) Striped dolphin -
White-beaked dolphin II (North Sea population only) False killer whale - Killer whale II Long-finned pilot whale II (North Sea population only) Melon-headed whale - Narwhal - Beluga whale - Northern bottlenose whales II (Blainvilles’s) densebeaked whale - Cuvier’s beaked whale - Gervais’s beaked whale - Sowerby’s beaked whale - True’s beaked whale - Sperm whale I & II
466 Bonn Convention: Article IV (4). 467 The Agreement on the Conservation of Cetaceans of the Black Seas, Mediterranean Sea and Contiguous Atlantic Area. 468 For example, Resolution 6.2 and Recommendation 7.2.
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Pygmy sperm whale - MYSTICETES
Northern minke whale - Fin whale I & II Sei whale I & II Humpback whale I Northern right whale I Blue whale I
2.1.4.1. Agreement on the Conservation of Small Cetaceans of the Baltic and
North Seas (ASCOBANS)
On 17 March 1992, the Agreement on the Conservation of Small Cetaceans469 of the Baltic and North Seas (ASCOBANS) was signed and it came into force in 1994. This agreement was the result of negotiations facilitated through the auspices of the aforementioned CMS. The Agreement was based on an inter-governmental memorandum of understanding endorsed two years previously470, and another 1979 convention: the Convention on the Conservation of European Wildlife and Natural Habitats (Bern Convention). The Bern Convention lists all small cetaceans regularly present in the Baltic and North Seas on Appendix II, i.e. ‘strictly protected species’. The ASCOBANS agreement calls on Parties to:
“undertake to cooperate closely in order to achieve and maintain a favourable conservation
status for small cetaceans.”471
The Agreement also requires Parties to apply certain “conservation, research and management
measures”472. These measures include working towards473:
“(a) the prevention of the release of substances which are a potential threat to the health of
the animals,” “(b) the development, in the light of available data indicating unacceptable interaction, of
modifications of fishing gear and fishing practices in order to reduce by-catches and to
prevent fishing gear from getting adrift or being discarded at sea,” “(c) the effective regulation… of activities which seriously affect their food resources,” and “(d) the prevention of other significant disturbance, especially of an acoustic nature.”
The Agreement also calls for co-ordinated research on small cetacean distribution and abundance474 including trying to “locate areas of special importance to their survival”475 and “identify present and
potential threats” to small cetacean species.476, 477
With respect to specific protection of small cetaceans the Agreement requests parties to introduce national legislation to prohibit “intentional taking and killing of small cetaceans” and “the obligation to
release immediately any animals caught alive and in good health”.478 Although the intentional capture479 and killing of small cetaceans in the UK has been prohibited since the enactment of the 1981 Wildlife and Countryside Act (see Section 2.4.1), no legislation has been introduced to require the
469 The term ‘small cetaceans’ refers to all odontocete cetaceans (toothed whales, dolphins and porpoises) except the sperm whale. 470 The “Memorandum of Understanding on Small Cetaceans in the North Sea” which was signed by Ministers present at the Third International Conference on the Protection of the North Sea, The Hague, 7-8 March 1990. 471 Art. 2.1. 472 Art 2.2. 473 Annex 1. Art 1. 474 Annex 1. Art 2. 475 Annex 1. Art 2 (b) 476 Annex 1. Art 2 (c) 477 It is interesting to note that the agreement states that these studies “…should exclude the killing of animals and include the
release in good health of animals captured for research.” Annex I. Art 2. 478 Annex 1. Art 4. 479 The Wildlife and Countryside Act and ASCOBANS refer to the ‘taking’ of cetaceans, this implies the deliberate capture of animals rather than the definition of ‘take’ used by the US Marine Mammal Protection Act which can mean the disturbance, injury or death of an animal.
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immediate release of animals entangled in fishing gear (or captured by any other method), nor any method introduced by which such releases could be enforced480. In another article, the Agreement requires parties to ensure information is provided “to fishermen in order to facilitate and promote the
reporting of by-catches” so that they can appropriately deliver the carcasses of any animals that have accidentally been bycaught to the appropriate authorities for analysis.481 Although, the UK government did set up a voluntary reporting scheme for bycaught cetecans in the early 1990s, this was rapidly demonstrated to be unsuccessful. This is unsurprising as a scheme that relies on a perpetrator to voluntarily report on their wrong doing is unlikely to succeed. The idea of providing financial incentives for fishermen to report and deliver bycatch was suggested to improve voluntary reporting, but again promptly dismissed as it would effectively place a “bounty” on the heads of dead cetaceans and would be likely to lead to deliberate takes of animals, and thus increased levels of mortality. The aim of ASCOBANS was agreed at the Second Meeting of the Parties (MoP) in 1997 as “to restore
and /or maintain biological or management stocks of small cetaceans at the level they would reach
when there is the lowest possible anthropogenic influence”. A suitable short-term practical sub-objective was specified: to restore and/or maintain stocks/populations to 80% or more of the carrying capacity.482 The Parties also agreed that the general aim should be to minimise (i.e. to ultimately reduce to zero) anthropogenic removals within some yet-to-be specified time frame, and that intermediate target levels should be set. Fisheries bycatch has been recognised by ASCOBANS as having the highest priority for small cetaceans in the Agreement area483 and is arguably the issue that has received the greatest level of attention. The Second MoP defined a level of “unacceptable interactions” as being, in the short term, a total anthropogenic removal above 2% of the best available estimate of abundance.484 However, in 1999 the IWC-ASCOBANS Working Group on harbour porpoises advised that the maximum annual bycatch that achieves the ASCOBANS interim objective over an infinite time horizon is 1.7% of the current population size. It further stated that consideration of uncertainty in population estimates and meeting the objective in a shorter time would require an annual bycatch of an even lower fraction of the abundance.485 As a result, at the Third MoP in 2000 a resolution was passed that defined “unacceptable
interactions”, in the short term as a total anthropogenic removal above 1.7% of the best available estimate of abundance.486 The resolution also noted that in the case of a severely reduced population, or of species other than the harbour porpoise, or where there is significant uncertainty in parameters such as population size or bycatch levels, then “unacceptable interaction” may involve an anthropogenic removal of much less than 1.7%. The Parties undertook to reduce bycatch levels as soon as possible to below this level and further identified a precautionary objective to reduce bycatches to less than 1% of the best available population estimate. However, at the Fourth MoP in 2003, Parties regretted that the recommendations set out at the previous MoP, to reduce bycatch to below “unacceptable interaction” levels had probably not been fulfilled.487 The issue of fisheries bycatch highlights a problem encountered by the Agreement, regarding the exclusive competence of the EU for matters relating to fisheries management which, since the fourth MoP, has been explicity acknowledged in resolutions addressing bycatch.488 The issue of EU compentency has undoubtedly limited the undertakings Parties can make on fisheries related issues under the auspices of the Agreement. However, there can be little doubt that the work of ASCOBANS on this issue has influenced the progress on bycatch made within the EU, most notably the adoption in 2004 of an EC Regulation specifically addressing the incidental capture of cetaceans in fisheries489 (see Section 2.3.2). In addition to numerous resolutions addressing inter alia pollutants, noise, research needs and other initiatives, ASCOBANS has also presided over the production of a recovery plan for the severely
480 Which is also in Annex 1. Art 4. 481 Annex 1. Art 5. 482 ASCOBANS (1997). 483 ASCOBANS (2000a). 484 ASCOBANS (1997). 485 Anon (2000). 486 ASCOBANS (2000b). 487 ASCOBANS (2003a). . 488 ibid. 489 OJ L 150. 30.4.2004, p.12. Council Regulation (EC) No 812/2004 of 26.4.2004 laying down measures concerning incidental catches of cetaceans in fisheries and amending Regulation (EC) No 88/98.
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depleted harbour porpoise in the Baltic Sea (the Jastarnia Plan)490 and is in the process of producing a conservation plan for harbour porpoises in the North Sea.491 However, the slow implementation of the Jastarnia plan has been a cause for criticism and the need to step up action was agreed at the Fifth MoP.492 So, while on paper ASCOBANS is a major step forward in the conservation of cetaceans, after more than a decade since the Agreement came into effect, progress on the conservation of small cetaceans in the North and Baltic Seas could be described as limited and patchy. For instance, while a major abundance survey was conducted in the area under the auspices of ASCOBANS in 1994 (known as SCANS)493 and another in 2005 (SCANS II), there has been only limited further research.on populaton size, structure, distribution and trends.494 Moreover, ASCOBANS has barely addressed some issues, most notably prey availability which is increasingly recognised to be a significant factor affecting the distribution, if not the overall status of cetacean populations in the region. ASCOBANS currently has 10 Parties, including the UK. Although the original Agreement area does not include waters to the west of Britain, the UK government declared on ratification that it would apply the Agreement to all UK waters. At MoP4 the Parties to ASCOBANS agreed to extend the ASCOBANS boundaries westwards and southwards to include the waters west of the UK, Ireland, France, Spain and Portugal.495 This extension is currently in the process of ratification.
2.1.5. International Union for the Conservation of Nature and
Natural Resources (IUCN).
The International Union for the Conservation of Nature and Natural Resources (IUCN) is a body consisting of (as of 1993) 61 sovereign states, 128 government agencies and 416 non-governmental organisations (NGOs) from 118 countries and, as such, is a unique hybrid of environmental NGOs and governmental bodies. Whilst not providing legal protection, the IUCN’s “red list” provides criteria for the evaluation of how threatened a species is and whether it is vulnerable or endangered. A full listing of the IUCN classifications for cetaceans recorded in UK waters is presented in Table 6.
Being classified as 'endangered' means that the species has significantly decreased (50% decrease) in numbers in recent years (10 years or 3 generations), numbers less than 2,500 animals in total, occurs only in a very small area or fragmented habitat, and/or faces a high risk of extinction in the wild in the near future (20% in the next 20 years or 5 generations). Endangered species occurring in UK waters include fin, blue, sei and North Atlantic right whales (Table 6).
A 'vulnerable' species has decreased in numbers in recent years (20% decrease in the last 10 years or 3 generations), exists in low numbers globally (but in larger numbers than endangered species, e.g. between 2,500 and 10,000 animals) and/or faces a high risk of extinction in the wild in the medium term (i.e. 10% chance of extinction in the next 100 years). Vulnerable species in UK waters include the sperm whale and humpback whale. Despite being one of the most commonly sighted cetaceans in UK waters, the harbour porpoise is also considered to be vulnerable by the IUCN.
Put simply, 'conservation dependant' means that a species is currently subject to a conservation programme, the cessation of which would cause the species to become vulnerable or endangered within five years (e.g. northern bottlenose and killer whales). 'Near threatened' species are species which are not conservation dependent, but are close to qualifying for vulnerable status (e.g. minke whales).
490 ASCOBANS (2002). 491 Conservation plan for harbour porpoises in the North Sea. Resolution No.1. Fifth Meeting of the Parties to ASCOBANS. The Netherlands. 492 Implementation of the Jastarnia Plan. Resolution No. 9. Fifth Meeting of the Parties to ASCOBANS. The Netherlands. 493 Hammond et al. (1995). 494 Whilst these large scale surveys are welcome it is important to realise that they only provide a broad-scale snaphot of some areas. This results in some population density data and population estimates but may contribute little to local conservation management and may even be misleading if population structure is unkonown. For example, an estimate of a certain species covers a vast area of sea but not reveal that they exist in discrete ‘biological populations’ which require particular conservation measures. 495 ASCOBANS (2003b).
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Species for which there is not enough information to make an assessment as to their conservation status are denoted as 'Data deficient'. However, it should be noted that this categorisation recognises that research in the future may result in the species qualifying for one of the above categories.
In addition to keeping and assessing the Red Lists, the IUCN has a Cetacean Specialist Group (CSG) which, to date, has produced three action plans detailing research and conservation priorities for threatened cetacean species or populations496, and holds an international congress. Although there were no specific projects that might influence UK cetacean conservation in the most recent CSG Action Plan, Project 44 in the 1988-1992 Action Plan497 outlines the need to investigate the effects of development on coastal cetaceans – an issue which also affects UK cetaceans. Project 26 in the 1994-1998 Action Plan498 discusses the need for a status assessment of bottlenose dolphins, a species that has been highlighted by the IUCN since populations may be at risk by virtue of their proximity to human activities, and the identification of problem areas. This reinforces a priority for conservation action for bottlenose dolphins in the UK, especially with regard to the impacts of coastal development and anthropogenic activity.
Table 6. IUCN listing of all cetaceans that have been reported in the UK
Common name IUCN LISTING
ODONTOCETES Harbour porpoise VULNERABLE Atlantic white-sided dolphin *
Common bottlenose dolphin DATA DEFICIENT Fraser’s dolphin DATA DEFICIENT Risso's dolphin DATA DEFICIENT Short-beaked common dolphin *
Striped dolphin CONSERVATION DEPENDENT
White-beaked dolphin *
False killer whale *
Killer whale CONSERVATION DEPENDENT Long-finned pilot whale *
Melon-headed whale *
Narwhal DATA DEFICIENT Beluga whale VULNERABLE Northern bottlenose whales CONSERVATION DEPENDENT (Blainvilles’s) densebeaked whale DATA DEFICIENT
Cuvier’s beaked whale DATA DEFICIENT
Gervais’s beaked whale DATA DEFICIENT
Sowerby’s beaked whale DATA DEFICIENT
True’s beaked whale DATA DEFICIENT Sperm whale VULNERABLE Pygmy sperm whale *
MYSTICETES
Northern minke whale NEAR THREATENED Fin whale ENDANGERED Sei whale ENDANGERED Humpback whale VULNERABLE Northern right whale ENDANGERED Blue whale ENDANGERED
* Unlisted species.
One IUCN resolution with the potential for immediate effect on cetacean conservation in UK waters was on undersea noise pollution.499 This called for member bodies to monitor, and investigate, the impacts of undersea noise on marine species, and to consider how to limit the use of powerful noise sources until their short-term and long-term effects are better understood. The resolution particularly emphasised that member bodies should ‘act with particular urgency to reduce impacts on beaked
whales’ by military sonar systems, for example by restricting training to low risk areas and working
496 Perrin (1989), Reeves and Leatherwood (1994) and Reeves et al. (2003). 497 Perrin (1989) 498 Reeves and Leatherwood (1994) 499 CGR3.RES053-REV1
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towards international regulations. The resolution also requested that the impacts of noise should be considered when developing Red List criteria, that consideration should be given to the development of alternate technologies, and that the precautionary principle should be employed, i.e. not waiting for definitive scientific proof before engaging conservation action.
The issue that Marine Protected Areas should also protect against underwater sound was also raised, and it was emphatically recognised that submarine noise causes disturbance, and thus species listed under the EU Habitats Directive, especially cetaceans, should be protected from such disturbance. Finally, the resolution called for the UNEP Regional Seas program to include control of anthropogenic noise in their deliberations and activities.
The third IUCN World Conservation congress was held in Bangkok, Thailand (17-25 November, 2004). At this congress a number of resolutions were passed with implications for cetacean conservation in UK governed waters, albeit not UK Exclusive Fisheries Zone EFZ waters. In a resolution on overseas dependant territories of European countries, member parties were requested to consider fully biodiversity conservation in any overseas territories they might possess, and to develop action plans for the conservation of biodiversity in these territories500. This is particularly pertinent to the UK which has several overseas territories and dependencies that have cetacean populations, which presumably would be encompassed in such plans, including Caribbean territories (e.g. Turks & Caicos and British Virgin Islands), Bermuda, the Falkland Islands and South Georgia.
2.1.6. International Convention for the Regulation of Whaling The UK has a long history of whaling activity, dating from coastal hunts of Atlantic gray whales by Anglo-Saxons501. Commercial whaling by British interests began in earnest in the 1600s and continued until the UK formally ceased whaling activities in 1963. The use of any ship for whaling502 is prohibited within the UK Exclusive Fisheries Zone.503 At present, the International Whaling Commission (IWC) is widely recognised as the primary international competent authority for the regulation and management of whales and whaling.504 The IWC was originally established in 1948 by nations engaged in whaling activities, and currently comprises 60 nations, only a few of which are currently actively involved in whaling505, and its activities are based upon the International Convention for the Regulation of Whaling, which was signed in 1946. There is, however, some confusion over exactly which species the IWC has authority over. The 1946 Convention does not actually define a ‘whale’ as such. In an annex to the final act of the Convention, there are a number of whale species listed in a variety of languages. Some IWC members consider that the IWC only has legal competence to regulate and manage the species mentioned in this annex (all baleen whales - except the pygmy right whale - and also the sperm whale). Other countries (including the UK), however, consider that the IWC has competence over all cetacean species. In 1972, the United Nations Conference on Human Environment adopted a resolution that called for a 10 year moratorium on commercial whaling. A decade later, in 1982, a majority vote by the IWC echoed this resolution and adopted a moratorium on commercial whaling, which came into effect in 1986. Although there is theoretically a global ban on commercial whaling, Norway tabled a reservation to the moratorium, and so is legally outside of the moratorium and allowed to hunt whales on a
500 CGR3.REC016-Rev2 501
Gardiner (1997). 502 The ‘whaling’ of any cetacean is prohibited, whether a toothed (odontocete) or baleen (mysticete) cetacean. 503 Whaling Industry (Regulations) Act 1934, as amended by the Fishing Limits Act, 1981. 504 It should be noted that there are other international bodies that are recognized by some countries as a competent authority, but not others. For example, ACCOBAMS and NAMMCO (the North Atlantic Marine Mammal Commission). The latter is somewhat controversial as an international organization as membership is “by invitation” rather than freely open to all North Atlantic nations, and so does not represent all North Atlantic maritime nations. 505 Norway currently conducts commercial whaling, Japan and Iceland conducts so called ‘scientific whaling’, which is effectively a commercial hunt under another name. Bequia (St Vincent & the Grenadines), the Russian Federation, Greenland (a protectorate of Denmark) and the USA currently conduct aboriginal subsistence whaling.
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commercial basis.506 At present Norway takes approximately 700 minke whales per annum507 from waters adjacent to the UK. Elsewhere in the North Atlantic, Iceland also hunts a number of minke whales508 for so-called ‘scientific purposes’.509 Iceland also currently has a reservation to the moratorium, although this reservation is somewhat controversial: Iceland initially accepted the moratorium as an IWC member, but subsequently left the Commission in 1992. Iceland then rejoined the IWC, after several rejected attempts, in October 2002, but rejoined with the proviso that it could join the IWC with a reservation against the moratorium. The re-acceptance of Iceland into the IWC was therefore highly contentious.510,511 A related issue is the fact that the surveys conducted by Norway to generate the population estimates used in its calculation of whaling quotas, are in part, conducted in UK waters. For a few years the UK refused to allow these surveys to enter within UK national jurisdictions (presumably in response to the fact that Norway uses a system to calculate quotas that has not been approved by the IWC). This ban was rescinded in 2004 but it is not clear why this decision was made.
Concern has been raised that Norwegian vessels may actually enter UK waters during the whaling operations themselves.512 Moreover, it is possible that the range of the minke whales being hunted could well include UK waters. Minke whales encountered within the UK EFZ appear to be primarily feeding.513 However, there is, at present, no information on where these whales go outside of the summer feeding period, or the routes that they take, or indeed the structure of this population.
At present the UK government has a strong pro-conservation/anti-whaling stance at the IWC. This stance is very much in line with British public opinion: A recent survey, conducted by MORI on behalf of WDCS has shown that a large majority, 82%, of the British public opposes whaling.
2.2. REGIONAL
2.2.1 OSPAR
The OSPAR convention came about as a consolidation of two earlier conventions, the Oslo Convention and the Paris Convention. It is the means by which the countries of the North East Atlantic co-operate in protecting their seas and came into force on 25th March 1998. Initially the Convention focussed on the elimination and prevention of pollution, but later adopted a new Annex which extended the competence of OSPAR to adopt programmes and measures to protect and conserve the ecosystems and biological diversity of the maritime area; to restore, where practicable, marine areas which have been adversely affected; and to control relevant human activities.514
506 Other nations also originally tabled reservations to the moratorium when it was agreed, such as Japan and Peru, but these were subsequently withdrawn. 507 In 1993 when Norway restarted whaling, 157 minke whales were taken. This quota of whales has steadily increased: in 2004 the quota was 670 minke whales and the proposed quota for 2005 is 796 animals. 508 In 2003 36 whales were taken, and a further 25 in 2004. 509 Japan and Iceland both conduct a whaling program that is allowed by a loophole in the Convention that allows a lethal take of whales for scientific purposes. This ‘scientific whaling’ is highly controversial and has been heavily criticized by many scientists belonging to the IWC Scientific Committee. For example, Clapham et al. (2003) state: “Many [IWC Scientific Committee] members have contended that Japan’s scientific whaling program is so poor that it would not survive review by any independent funding agency.” 510 The vote to permit Iceland’s admittance to IWC passed by one vote. However, Iceland itself was allowed to vote on its admitance, despite not actually being a current party to the IWC, i.e. Iceland in effect voted itself into the IWC, despite not actually being a member. 511 The legal ramifications of a nation becoming signatory of a treaty but being exempted from a central tenet/component of the treaty (i.e the moratorium) have caused concern. Moreover the concept of a nation agreeing to a central tenet/component of a treaty (i.e the moratorium in this case) and then, after waiting some time, rejoining the treaty with a reservation to the central tenet raises many questions about undermining the afectiveness of international treaties, and the legality of Iceland’s actions. 512 Parsons et al. (1999) 513 See MacLeod et al. (2004) for information on minke whale behaviour and ecology during the summer season. 514 Strategies of the OSPAR Commission – Biological Diversity and Ecosystems (www.ospar.org/eng/html/welcome.html)
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One area in which the Convention explicitly does not engage in is the management of fisheries where action can be taken under the Common Fisheries Policy (CFP)515, non-EU member states fisheries legislation, NEAFC516 or the North Atlantic Salmon Conservation Organisation (NASCO). Unfortunately, in the context of OSPAR, the management of fisheries also includes the management of marine mammals.517 Not only does this set a dangerous precedent but it also does not include any of the relevant management bodies for cetaceans in the list of conventions or instruments any questions will be referred to, e.g. IWC, ASCOBANS. To date, this does not seem to have excluded cetaceans from any conservation measures developed through OSPAR. One strand of work OSPAR has undertaken has been the development of a list of threatened and/or declining species and habitats for the region. The list has not been finalised and is based upon nominations by contracting parties and observers. The cetacean species included on the list are the bowhead whale, blue whale, northern right whale and harbour porpoise.518 There would seem to be many more cetacean species that could be included on this list and it is unclear why they are not, e.g. fin and sei whales, both classified by IUCN as endangered; and many beaked whale species, classified by the IUCN as Data Deficient. The purpose of the list is to guide the OSPAR Commission in setting priorities for its further work on the conservation and protection of marine biodiversity. This means some cetacean species may miss out on positive conservation measures as they are not currently included on the list. OSPAR Recommendation 2003/3 tasks Contracting Parties with establishing an ecologically coherent network of well-managed MPAs which will:
a. Protect, conserve and restore species, habitats and ecological processes which have been adversely affected by human activities;
b. Prevent degradation of, and damage to, species, habitats and ecological processes, following the precautionary principle;
c. Protect and conserve areas that best represent the range of species, habitats and ecological processes in the maritime area.519
To meet this commitment the UK will need to introduce new legislation in order to identify, designate and manage OSPAR MPAs. A further strand to OSPAR’s biodiversity work has been the development of Ecological Quality Objectives (EcoQOs)520 as a means to evaluate the environmental quality of the OSPAR regions. One EcoQO relates to the bycatch of harbour porpoises in the North Sea, reflecting the objective identified by ASCOBANS, stating that: ‘Annual bycatch levels should be reduced to levels below 1.7% of the best population estimate’. The UK has agreed to act as the lead country for this EcoQO. In order to determine its status, monitoring schemes for harbour porpoise bycatch will need to be established. Despite a similar obligation under the Habitats Directive (see Section 2.3.1), which would apply to all OSPAR contracting parties with the exception of Norway, the UK (and other EU countries) have been slow to put this in place. As a result, knowledge of harbour porpoise bycatch is incomplete. In order to establish bycatch rates, an abundance estimate for the population is also needed. While the 1994 SCANS survey521 and SCANS II in 2005 go some way to providing the data required, they are not fine scale enough to highlight local population variation in abundance. The structure of the North Sea harbour porpoise population remains unknown which means assessment on the impacts of bycatch on different parts of the population will not be possible.
515 Common Fisheries Policy 516 North East Atlantic Fisheries Commission 517 OSPAR Agreement on the Meaning of certain concepts in Annex V (1998-15.2) (www.ospar.org/eng/html) 518 2004 Initial OSPAR List of Threatened and/or Declining Species and Habitats (2004-06) 519 OSPAR Recommendation 2003/3 on a Network of Marine Protected Areas 520 ‘Ecological quality’ is an expression of the structure and function of the ecological system taking into account natural physiographic, geographic and climatic factors as well as biological, physical and chemical conditions including those from human activities. 521 SCANS, Hammond et al. (1995)
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2.3 EUROPEAN
2.3.1. Council Directive on the Conservation of Natural Habitats and
Wild Fauna and Flora (Habitats Directive)
The European Council Directive on the Conservation of Natural Habitats and Wild Fauna and Flora 522 (the “Habitats Directive”) has its roots in the 1979 Bern Convention. The Directive was adopted by the European Union in May 1992, and came into effect in the UK in 1994.523 Article 2 of the Directive places a duty on Member States to ensure that any measures taken under the Directive are designed to “maintain or restore, at a favourable conservation status, natural habitats and species of wild fauna … of Community interest” (which include all cetaceans). The Directive requires Member States to undertake surveillance of the conservation status of these natural habitats and species524. Article 12 requires Member States to establish a system of strict protection for the animal species listed in Annex IV(a) (which include all cetaceans). The Directive has two parts that are pertinent to UK cetacean conservation, one through species protection (see Section 2.3.1.1), and the second through the designation of protected areas (see Section 2.3.1.2).
2.3.1.1. Species Protection
Under the EU Habitats Directive,525 Member States are required to establish a system of strict protection for the animal species listed in Annex IV which includes all cetaceans. Member States are required to prohibit:
(a) all forms of deliberate capture or killing; (b) deliberate disturbance of cetaceans, particularly during the period of breeding, rearing,
hibernation and migration; and (c) deterioration and destruction of “breeding sites” or “resting places”.526
The term “deliberate” has the same problems associated with it as the term “intentional” in the Wildlife and Countryside Act (see Section 2.4.1) i.e. proving damaging acts were done ‘deliberately’ can be difficult. The Habitats Directive does, however, have the added advantage that its powers extend to the boundaries of the UK’s 200 nm (nautical mile) EEZ, as confirmed by a court case in 1999.527 Whereas, the Wildlife and Countryside Act only applies within UK territorial waters: 12 nm from the coastline (see Section 2.1.1 for the distinctions between these areas).528
The prohibition on the destruction/deterioration of “breeding sites” and “resting places” is difficult to apply to cetaceans as defining such areas for highly mobile species is problematic. To be more applicable to cetaceans and other mobile marine species these provisions of the Habitats Directive would more usefully refer to the deterioration and destruction of ‘critical habitat’. While this would still be difficult to define and to measure, several bodies, such as the International Whaling Commission,529 are working on definitions of critical habitat and indices of habitat degradation that can be used effectively for management purposes.
522 European Council Directive: 92/43/EEC. 523 The Directive was transposed into UK law via The Conservation (Natural Habitats, &c.) Regulations 1994 (CNHRs). 524 Article 11 525 92/43/EEC Article 12. 526 Article 12, Para 1. 527 R-v-The Trade Secretary of State for Trade and Industry ex parte Greenpeace Limited (1999). 528 Wildlife & Countryside Act Section 27(5) . 529 For example: International Whaling Commission (2005).
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Indiscriminate disturbance of cetaceans is also prohibited by the Habitats Directive.530 There are strong arguments that activities which cause wide-ranging disturbance such as seismic surveys, and low and mid-frequency sonar, could be prohibited, or restricted, under this article, as might locally disturbing activities such as anti-predator devices used at fish farm sites.531
Furthermore, activities can be exempt if:
(a) there is no satisfactory alternative; (b) it is in the interests of public health or safety; or (c) there are over-riding socio-economic matters.532
The implications of the Habitats Directive and other legislation with respect to disturbance caused by seismic surveys are discussed in more detail later (see Section 2.4.3).
The Directive also requires Member States to establish a system to monitor the incidental capture and killing of Annex IV(a) species. In the light of the information gathered, Member States are required to take further research or conservation measures as required to ensure that incidental capture and killing does not have a significant negative impact on the species concerned533. However, it has long been evident that Member States were not meeting these obligations, a fact that was acknowledged by the European Commission in the Explanatory Memorandum accompanying its proposal for a new Council Regulation on cetacean bycatch534. This stated that “the Commission has come to the conclusion that the measures taken so far are insufficient or lacking in coordination” and that “additional Community action is needed in the fisheries sector to improve, in a consistent and cooperative manner, measures aimed at the conservation of small cetaceans.” Hence, the adoption in 2004 of the new Council regulation addressing incidental capture of cetaceans in fisheries (see section 2.3.2). 2.3.1.2. Protected Areas
Under the Habitats Directive, the UK government also has an obligation to designate protected areas for species listed on Annex II as part of a Europe-wide ecologically coherent network of sites. For cetaceans, this means that the UK has an obligation to designate Special Areas of Conservation (SACs) for harbour porpoises (Phocoena phocoena) and common bottlenose dolphins (Tursiops truncatus). Selection should be based on certain criteria535 and relevant scientific information. The Directive also stipulates, for aquatic species which range over wide areas, that such sites should only be proposed where there is a clearly identifiable area representing the physical and biological factors essential to their life and reproduction.536 It is not clear what the rationale was for making the achievement of marine SACs more onerous than for terrestrial ones and given that there is often a paucity of data for marine species, this would not seem to be in the best interests of conservation. The UK government is obliged to establish the necessary conservation measures (including appropriate management plans if need be) to avoid the deterioration of designated habitat and disturbance of species for which areas have been designated537 as far as this is relevant to maintaining the species or habitat at a favourable conservation status.538 In relation to the management of human activities, if an activity is likely to have a negative effect on the feature the site was designated for, it can only go ahead if it is imperative for reasons of overriding public interest, including those of a social or economic nature. If the activity is allowed to proceed and
530 Article 15. 531 See Parsons et al. (1999); Parsons & Shrimpton (2000); Shrimpton (2001);Gordon & Northridge (2003). 532 Article 16. 533 Article 12.4 534 CEC (2003). 535 Annex III (Stage 1) 536 Article 4 537 Article 6 538 Favourable conservation status is when population dynamics data on the species concerned indicate it is maintaining itself on a long term basis as a viable component of its natural habitats; the natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future; and there is, and will probably continue to be a sufficiently large habitat to maintain its populations on a long term basis.
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the site is damaged, compensatory measures must be taken, i.e. designating further areas, so that overall the coherency of the network is not compromised.539 The problem comes in deciding whether an individual activity will have a negative effect on the favourable conservation status of the species or habitat concerned. As far as cetacean SACs are concerned, it is questionable whether management decisions taken have been precautionary enough (see Breakout box – SACs). A further potential problem with SACs for cetaceans is that to date, those designated have been of a relatively small size. This gives little ‘buffer’ if conditions become less favourable within the SAC due to anthropogenic, oceanographic or biological factors, such as a change in prey availability. If this occurs, the animals range could either shift or expand to cover a wider area, either way the SAC would afford less protection than intended. This appears to be happening with the Moray Firth bottlenose dolphins, many of which have increased their range so are spending far less time within the protected area.540 The reasons for this are unknown at present but are hypothesised to be because of changes in prey availability.541 This problem is particularly concerning given the changes in range and distribution likely to occur as a result of climate change. Initially, the UK government took the view that the Habitats Directive only applied to 12nm, so sites were only proposed for inshore areas. A 1999 court judgement542 ruled that this was an incorrect interpretation however, and that the Directive should be applied out to 200nm. The Offshore Marine Conservation Regulations, the piece of legislation which would enact this change, were consulted on in 2003 but have yet to be brought into law. The offshore environment is not represented well at present, by the species and habitats listed under the Habitats Directive, as applicable for SAC designation. A review of the Annexes would therefore be useful as there are further cetacean species whose addition should be seriously considered. As a result of the predominantly inshore species list and also the lack of data available for the offshore environment, the SAC network remains very underdeveloped beyond a short distance from the coast. No cetacean SACs are currently proposed and it may be that we are missing important areas due to a lack of directed research input. The same could also well be true of inshore areas. The two most well known bottlenose dolphin populations (in the Moray Firth and Cardigan Bay; see Breakout Box – SACs) have been relatively well studied over a long period of time but other areas are very poorly studied. Currently the UK authorities seem to rely heavily on the “Atlas of cetacean distribution in
north-west European waters” 543 to determine the presence and absence of cetaceans in decisions on the designation of protected areas. This tends to distract from the need to conduct more dedicated research, despite the broad scale and patchy nature of the data upon which the atlas is based. The UK government should, therefore, make funding available for research upon these aforementioned populations and, in the interim, should put into effect a precautionary approach and be positive in making designations warranted by the ‘best available information’.
Breakout Box 2 - SACs
Bottlenose dolphin
To date, two such areas have been identified as SACs where bottlenose dolphins are the primary features: Cardigan Bay (Wales) and the Moray Firth (Scotland). In addition, bottlenose dolphins were recently added as a secondary feature to the Pen Ll"n a’r Sarnu SAC in the Menai Straits of North Wales. In addition to these areas, there are others within the UK that could warrant designation as SACs for bottlenose dolphins. There are several coastal areas in western Scotland that are inhabited by bottlenose dolphins, including the coastal waters of the Isles of Coll, Tiree, Islay, Barra and the Kintyre peninsula544. In England, coastal waters of the southwestern peninsular might also qualify.545 However, few large scale surveys have been conducted in areas where bottlenose dolphins are known to be
539 Article 6(4) 540 Wilson et al. (2004) 541 Ibid 542 R-v-The Trade Secretary of State for Trade and Industry ex parte Greenpeace Ltd. (1999) 543 Reid et al. (2003). 544 See Shrimpton and Parsons (2000) and Grellier andWilson (2003) 545 See Wood (1998).
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present, and previous government funded survey routes missed the shallow nearshore waters where bottlenose dolphins are commonly sighted.546 There has yet been no dedicated program, or government funding, specifically to identify areas around the UK that have populations of bottlenose dolphins (or harbour porpoises).
The stated aims of the Moray Firth SAC are to: “avoid deterioration of the habitats of qualifying
species (bottlenose dolphins, Tursiops truncatus), or significant disturbance to the qualifying species,
thus ensuring that the integrity of the site is maintained and the site makes appropriate contribution to
achieving FCS [Favourable Conservation Status] for each of the qualifying features.”547
That is to say, the objectives of the area are primarily to prevent further habitat degradation, as required under the Habitats Directive,548 but not to restore the habitat or promote an increase of the species, or remove threats to the health and welfare of the species (other than those causing significant disturbance). With respect to the disturbance objective, theoretically, bottlenose dolphins in the Moray Firth should already be protected from disturbance (assuming this is the result of deliberate or reckless actions), whether significant or not, under the Habitats Directive (Section 2.3.1) and WCA/ Nature Conservation (Scotland) Act (Sections 2.4.1. and 2.4.1.4).
The stated objectives of the Cardigan Bay SAC are even more vague:
“to maintain the Cardigan Bay bottlenose dolphin population at Favourable Conservation Status, as
defined in the Habitats Directive”549 or
“to maintain, within their natural variation, the distribution and abundance of the cSAC’s[candidate
Special Area of Conservation] bottlenose dolphins.”550
It could be argued that we do not know what the natural distribution and abundance of this population is, as research has primarily been limited to the past decade, during which the animals’ numbers and distribution may already have been diminished as the result of harmful anthropogenic activities.
Progress on implementing management measures for both SACs has been very slow, with less than a quarter of management aims completed in the Moray Firth in 2002,551 and less than a fifth in Cardigan Bay by 2003,552 although approximately three-quarters had been attempted or initiated.553
If anything, activities are being approved that are causing the additional degradation of the SACs. For example, it has been noted that the same authorities responsible for the management of the Cardigan Bay SAC are planning to increase recreational boat use in the SAC,554 and dumping of waste from a shell processing plant has been licensed in the SAC,555 an action that has been linked to a decrease of dolphin use of that part of the SAC.556 This situation has led to a researcher to protest:
“to permit the large-scale dumping of shell waste in the small area defined to preserve the dolphins
risks making the area unfavourable for dolphins, thereby making a mockery of the SAC concept.”557
The researcher also warns:
“if changes in the local environment continue and habitat degradation is permitted, the conservation
scheme could be undermined from the outset.”558
The combination of insufficient knowledge of long term life history, status and trends; vague overarching objectives against which we are unable to assess properly success or failure; and a seeming
546 For example the majority of survey routes outlined Hammond et al. (1995) would miss the habitat of estuarine or coast-
hugging bottlenose dolphin groups. The JNCC cetacean distribution atlas (Reid et al., 2003) does not record bottlenose dolphins in the majority of west Scottish waters, despite there being a local abundance recorded by others (see Shrimpton and Parsons, 2000 for bottlenose dolphin distribution maps of this area).
547 Moray Firth Partnership (2003), p. 16. 548 Art. 6. Para. 2. 549 See http://www.cardiganbaysac.org.uk/english/manplan_con_structure.htm. Favourable conservation status as a goal of the Habitats Directive is outlines in Art. 2.2. 550 Cited in Bates (2003), p. 89. 551 The Moray Firth Partnership (2002) notes that 25% of management aims have been completed. Bates (2003, p. 88) notes “The
2003 Moray Firth review delayed due to a lack of staff, and there are no plans to employ more staff in this sector”. 552 Cardigan Bay SAC Relevant Authorities Group (2003). 553 Moray Firth Partnership (2002), Cardigan Bay SAC Relevant Authorities Group (2003). 554 Bristow (2004). 555 Bristow et al. (2001), Bristow (2004). 556 Bristow (2004). 557 Ibid., p. 403. 558 Ibid., p. 403.
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lack of precautionary decision making with respect to permitting potentially damaging activities, leaves these populations in a precarious position. To quote a recent study on the management of SACs within Britain, “it appears unlikely that any significant management actions will be proposed or completed
until the population has suffered a severe decline upon which, direct action will take priority,
potentially repeating the cycle of old conservation strategies, where managers take action too late.”559 Such a ‘closing the barn door after the horse has bolted’ approach to management is made even more likely as detection of a decrease in dolphin abundance (as the result of anthropogenic activities) could take a decade to be confirmed by researchers,560 although concerns that bottlenose dolphins in Cardigan Bay may be in decline, and habitat use diminished, within the SAC area have already been highlighted.561
Harbour porpoise
Despite being listed on the Habitats Directive as being a conservation priority species in Europe, and also being considered to be a “vulnerable” species by the IUCN (Section 2.1.5), and despite support from WDCS and other expert bodies for their designation, the government has not proposed any SACs for porpoises in the UK. Indeed little movement has been made to even postulating potential areas for conservation with the exception of a useful report commissioned by CCW (The Countryside Commission for Wales).562 The government claim is that there is “insufficient scientific evidence” to designate porpoise SACs563
. Such a stance is in complete opposition to the precautionary principle, which the UK government is obliged to apply in all areas of nature conservation (see Section 2.1.2).
Designation of harbour porpoise SACs is admittedly more problematic than for bottlenose dolphins, in part because of less dedicated study and also because porpoises are simply more difficult to see and thus more likely to be overlooked. For example, the case for bottlenose dolphins in the Moray Firth rests on the longest-term and most intense cetacean research in the UK, providing a wealth of scientific reports and publications over a period of more than a decade.564 Similarly, the designation for this species in Cardigan Bay was supported by an intense, long-term study.565
One previous review of cetacean conservation566 observed that one part of the Directive567 notes that the number of Annex I and II species in a site should be an important consideration when designating protected areas, i.e. the development of SACs for multi-species and multi-habitat protection. In the UK, the concept of such multi-species/habitat designation has been largely ignored.568 One potential area for a multi-species/habitat SAC would be the Firth of Lorn, an area already a candidate SAC for reefs and tidal rapids, but also possessing harbour porpoises.569 Harbour porpoises are known to have been killed by fisheries entanglement in the area, so there is also a conservation need for porpoise protection at that site. Occupancy of the area by porpoises is also likely to have been long-term.570 Encompassing harbour porpoises into the management plan for this SAC would be relatively easy, though this has not been done by the relevant authority (Scottish Natural Heritage):
‘Harbour porpoise have also been listed under the designation but have been given a global score:
category “D” and are therefore deemed not worthy for protection due to their purported occurrence
not being “significant”.’ 571
Due to the perceived failure by the government to fulfil its duties under the Habitats Directive, and perceived failure in proposed management of the Firth of Lorn SAC, local environmental groups have
559 Bates (2003), p. 89. 560 Wilson et al. (1999). 561 Bristow (2004). 562 See CCW website for details. 563 Whitmee pers. comm. cited in Shrimpton and Parsons (2000) 564 For example: Hammond and Thompson (1991), Wilson et al. (1997), Wilson et al. (1999), Thompson et al. (2000), Mendes et
al. (2002), Hastie et al. (2003a), Hastie et al. (2003b), Hastie et al. (2004). 565 For example: Bristow and Rees (2001), Bristow et al. (2001), Gregory and Rowden (2001) and Bristow (2004). 566 Shrimpton and Parsons (2000). 567 Annex III.Stage 2, 2(d). 568 See Hughes (1998). 569 Shrimpton and Parsons (2000). 570 This is evidenced by a coastal area in the north of Jura, in the SAC area, called “Beigh Gleann nam Muc”, meaning the “Bay of the porpoises”. 571 Hebridean Marine National Park Partnership. 2004. Letter to Margot Wallström, European Union Commissioner for the Environment, 3rd November 2004. Re: Failure by the Scottish Executive and Relevant, Competent Authorities to effectively
implement The Habitats Directive (Council Directive 92/43/EEC/1992) within Scotland.
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submitted official complaints to the European Union.572
Another candidate SAC which could potentially encompass harbour porpoises is the Moray Firth bottlenose dolphin SAC.573 Including management measures that protect porpoises in this SAC , would be even easier than for the Firth of Lorn, as there is already cetacean expertise on the management group, and many factors effecting bottlenose dolphins would also affect harbour porpoises. Surveys have shown even higher densities of harbour porpoises than bottlenose dolphins in the Moray Firth.574
As mentioned above, the Moray Firth's SAC designation benefits from the long history of research on the resident dolphin population. Elsewhere in the UK, bottlenose dolphins and harbour porpoises have been subject to less direct research – and in some areas, none. Therefore, areas which may be in dire need of protection for these species are currently unable to fulfil the designation criteria of the Habitats Directive due to the lack of directed research input.
2.3.2. European Council Regulation on Bycatch (EC 812/2004)
On 26th April 2004, the European Union adopted a new Council Regulation aimed at reducing levels of cetacean bycatch.575. The Regulation came into force on 1st July 2004, although the various provisions are not required to take effect until certain dates from then until 2008. The provisions of the regulation of relevance to the UK include the requirement of:
(a) acoustic deterrent devices (known as ‘pingers’) to be attached to nets in specified gillnet, tanglenet and driftnet fisheries operated by vessels of 12m of more in length, in the English Channel, Celtic Sea, and the North Sea;576
(b) onboard observer programmes on fishing vessels of 15m or more in length to monitor cetacean bycatch in specified fisheries, most notably pelagic trawl fisheries;577 and
(c) pilot projects to monitor: i) the impact of pingers and their effectiveness in the fisheries in which they are
utilised;578 and ii) levels of cetacean bycatch in smaller vessels (<15m)579.
The Regulation has been criticised by WDCS and others for being over-reliant on pingers, to the exclusion of any other mitigation measures, and for placing no obligation on Member States to research or develop potential alternative methods. Additionally, the provisions that are in the Regulation have several serious weaknesses, most notably the exemption of all fishing boats under 12 metres long from the pinger requirement. Thousands of vessels in the UK and other Member States are less than 12m long, many of which use static gill or tanglenet gear that is likely to catch cetaceans. However, this flaw is largely academic as, despite several deadlines having passed for the pinger provisions to come into effect, few if any pingers are being used by commercial vessels, as the industry has argued that none of the models of pinger that is currently available is adequately safe, effective or practicable in the fisheries concerned. In addition, the requirement for onboard observers does not apply to vessels that are less than 15 m long, and the fisheries specified for observer monitoring do not include those that are subject to the pinger requirements. Thus, again, key sectors of the UK (and other EU) fleet are exempt from the requrements of this law.
572 Ibid. 573 For example, Whaley and Robinson (In Press). 574 i.e. 0.45 schools of bottlenose dolphins per 100km of survey versus 1.69 schools of harbour porpoises (Hastie et al. 2003b). 575 Council Regulation (EC) No. 812/2004. 576 Art. 2. 577 Art. 4.1. 578 Art. 2.4. 579 Art. 4.2.
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The Regulation also requires the gradual phase out of drift net use in the Baltic Sea, an area which has been exempt from the driftnet restrictions that apply to all other European fleets and waters (see Section 2.3.2.1). The regulation originally called for a drift net phase-out to be completed by 1st January 2007 however, this was subsequently amended to 1st January 2008580.
2.3.2.1. Other legislation relevant to bycatch In addition to Regulation 812/2004, other legal instruments have been introduced to address the bycatch of cetaceans in fisheries. For instance, in 1992, Regulation (EC) No 345/92 restricted the length of driftnets to 2.5 km. In 1998, the introduction of Regulation (EC) 1239/98 provided for the phasing out of all driftnets used to catch tuna, swordfish and similar listed species, and their total prohibition from 1 January 2002. Both these provisions apply to all EU waters (with the exception of the Baltic Sea, which was exempt from both provisions) and, outside those waters, to all EU fishing vessels. However, while the phase out of driftnets seems to have been effective in the north-east Atlantic albacore fishery, this has not been the case in the Mediterranean. The French fleet has continued to operate driftnets, known as ‘thonaille’, to catch bluefin tuna. This fishery is known to catch striped dolphins581. There is also a resurgence of illegal driftnet use by Italian vessels to catch tuna and swordfish. In addition, non-EU Mediterranean countries such as Morocco and Turkey, which are not bound by the EU driftnet ban, continue to use these nets, despite the UN moratorium on large-scale pelagic driftnets. These fisheries catch a large number of cetaceans, mostly striped dolphins but also including pilot whales, common dolphins and sperm whales.582 EC Regulation (EC) No 973/2001 prohibits the encircling of schools or groups of marine mammals with purse seines, except in the case of vessels operating with a dolphin mortality limit (DML) under the conditions laid down in the Agreement of the International Dolphin Conservation Program in the Eastern Pacific Ocean. In addition, in an attempt to address growing concerns about the bycatch of common dolphins in the waters to the southwest of England, in September 2004583 the UK Government announced that it would ban UK pair trawls for sea bass within 12nm of the UK coastline in the western English Channel.584 The Government also requested the EU Director-General of Fisheries first, to extend this prohibition to all EU Member State vessels operating in this fishery and later, to those vessels fishing within the UK’s 12 nm.585,586 Both of these requests were rejected by the European Commission.
2.3.3. Strategic Environmental Assessment (SEA) Strategic Environmental Assessment (SEA) is a process that assesses the impacts of activities on an area-wide, regional or national scale. It is conducted at this large-scale, ‘strategic level’, to provide context and overview, Environmental Impact Assessment (EIA) is then used to examine the impacts associated with an individual project. The two need to be used together to provide a comprehensive system of assessment. SEA potentially allows for the analysis of cumulative, in-combination and transboundary effects which EIA generally does not. However, thinking on how cumulative and in-combination effects are assessed is not well developed at this time.
580 Art. 9. 581 CEC (2002). 582 Ibid. 583 The ban was enacted by Order on 22nd December 2004. 584 Order No. 3397. The South-west Territorial Waters (Prohibition of Pair Trawling) Order 2004. 585 Under Art. 9 of Council Regulation EC (No) 2371/2002. 586 See G. Baynham-Hughes. 2005. Tacking cetacean bycatch: UK request for an extension of a domestic ban on pair trawling for bass in inshore waters. http://www.defra.gov.uk/fish/sea/conserve/pdf/ptclose-letter.pdf.
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The 2001 Strategic Environmental Assessment Directive587 requires that an ‘environmental assessment’ has to be carried out for all “plans and programmes”588 for certain activities which are likely to have significant environmental effects, for example, planned activities involving fisheries, energy, industry and transport. They must also be prepared if activities may have an effect on in view SACs (see Section 2.3.1.2), a requirement of the the Habitats Directive (see Section 2.3.1)589. Plans and programmes not subject to SEA are those whose sole purpose is for national defence or civil emergency, and financial, or budget, plans and programmes. It is up to EU Member States to put in place a screening process to determine whether a plan or programme is likely to have significant environmental effects but certain criteria590 must be followed in making this determination. Member States are required to consult authorities which are likely to be concerned by the environmental effects of implementing plans and programmes, as well as the public.591 The Directive states that the environmental report and opinions expressed during consultation must be taken into account during the preparation of the plan or programme.592 Member States are also required to monitor the significant environmental effects of the implementation of plans and programmes in order to identify, at an early stage, unforeseen adverse effects and to take appropriate remedial action.593 To date, only the energy sector has completed SEAs for their activities in the UK. The quality of these has improved over the years but there are still concerns, at least in respect to cetaceans, that decisions regarding the environmental impacts of an activity are not precautionary enough (see Breakout Box – Noise pollution and the precautionary principle). This is at least partially a result of the significant cetacean data gaps that exist and they serve to undermine the strength of the SEA process. A further concern is that the owner of the plan or programme (a responsible authority) is the body charged with carrying out an assessment of whether an SEA is required, the preparation of the environment report and the monitoring the environmental effects of the implementation of plans or programmes. This raises issues of impartiality and could also potentially undermine the strength of the SEA process and the decisions made. Consideration should be given to the creation of a separate agency or unit with responsibility for screening and quality control, if not for the preparation of the report itself and subsequent monitoring.
2.4. NATIONAL
2.4.1. Wildlife & Countryside Act (WCA)
2.4.1.1. Species protection
Like the Habitats Directive, the 1981 Wildlife and Countryside Act (WCA) was enacted as a response to the UK’s obligations under the 1979 Bern Convention. Cetaceans are listed in Appendix II and III of the Bern Convention594 and as such the UK government is obliged to provide legal protective coverage for these species. Part I of the WCA is of greatest relevance to cetaceans595 since this provides legal protection for species listed in Schedule V of the Act. As a result, under the WCA it is illegal to:
587 2001/42/EC. 588 Defined as those are prepared and/or adopted by an authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and; those which are required by legislative, regulatory or administrative provisions(Art. 2). 589 Art. 3. 590 Detailed in Annex II of the Directive. 591 Article 6 592 Article 8 593 Article 10 594 The Bern Convention on the Conservation of Wildlife and Natural Habitats 1979. 595 Notably Sections 9-12.
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(a) intentionally kill, take596 or injure cetaceans; (b) intentionally damage, destroy or obstruct access to, any structure or place which cetaceans use
for shelter and protection; (c) intentionally disturb a cetacean whilst it is occupying such a structure or place; (d) sell, possess, deal, transport or advertise for the purpose of sale any live, dead, part of or
anything derived from a cetacean.
However, there is a loophole. If killing or disturbing of cetaceans is“the incidental result of a lawful
operation and could not reasonably be avoided” 597
then the perpetrator is exempt. Given that arguably most disturbance and mortality of cetaceans in UK waters occurs incidentally to lawful operations, such as fishing and oil and gas exploration, this is a serious gap in the protective regime.
It is only right that a defence should be available for truly accidental acts. However, some lawful operations are causing the regular, and even predictable, killing or disturbance of protected species, for example, fisheries bycatch. If protected species status is to mean anything, the legislation and management structures must provide a mechanism through which to manage and lessen negative impacts on protected species from lawful operations. Such a process should involve the assessment of any potential effects of operations on protected species followed by the development of mitigation measures (technical, restrictive or prohibitive) to attempt to reduce or eliminate any impact. Abiding by these should be made a condition of the consent for the operations, and enforcement arrangements should also be considered. Ongoing monitoring of the impacts and effectiveness of any mitigation measures should be employed to enable feedback into the system, and the instigation of any necessary further measures.
Another problem with the WCA is the requirement that for charges to be brought, the illegal acts must have been carried out intentionally. Effectively, this has seriously hampered the legislation, as proving that acts were carried out intentionally is difficult in court. This was, in part, rectified by the Countryside and Rights of Way (CROW) Act, as detailed below (Section 2.4.1.3), but intent must still be proved in relation to the killing, taking and injuring of protected species. The situation has been more fully rectified in Scotland via the Nature Conservation (Scotland) Act (see Section 2.4.1.4).
Protection of cetaceans and other marine species from disturbance is also hampered by the wording of the Act, as law makers were primarily considering reducing disturbance to birds and terrestrial wildlife. Compared to terrestrial species, it is practically very difficult to define discrete areas that marine species use for shelter and protection, and whilst damage to a terrestrial habitat may be very obvious, it may not be so for a marine location. Again, subsequent amendments to the WCA have improved the applicability of this provision for cetaceans (see Sections 2.4.1.3 and 2.4.1.4) by removing the need for disturbance to have taken place in a particular location.
Another flaw of the WCA is the lack of identified competent bodies that are able to prosecute under the law. Typically wildlife crimes in the UK are prosecuted by the UK police force: often cases being brought by police Wildlife Crime Officers, who specialise in wildlife crime issues. Considering that most police officers are land-based, and that most areas where cetaceans abound are remote coastal areas where there may be only a small police presence, monitoring for illegal activities and enforcing protective law for marine species is problematic to say the least.598
Finally, the WCA only applies to UK territorial waters (out to 12 nautical miles from the coastline) which leaves a large area of sea (12-200nm), and the cetaceans in it, unprotected by the principal piece of national protective legislation.
2.4.1.2. Site protection
The WCA provides for the designation of Marine Nature Reserves (MNRs) which may include any land covered either continuously or intermittently by tidal waters or parts of the sea out to a distance of 3nm.599 Since 1981, only 2 MNRs have been designated in England and Wales600 and the MNR concept has been widely accepted as a failure. As well as being geographically very limited (only extending to 3nm), “procedures are regarded as complex and unwieldy, and in need of an
596 Capture rather than the legal definition ‘take’ as outlined in the US Marine Mammal Protection Act. 597 Section 10, part 3(c) 598 See Simmonds (2000) for more details. 599 Section 36(1) 600 Skomer Island and Lundy Island
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administrative overhaul.” 601
There is also a requirement for consensus from all affected bodies before a site can be designated and this, combined with other problems, has resulted in very few sites making it through the process. Even when a site is designated, the amount of protection it receives is limited by public bodies having an effective veto over any actions to conserve the site, and the fact that certain public rights are protected to the extent they could continue despite being damaging to marine wildlife.602
The UK currently has no national legislation that enables the protection of marine wildlife that is considered to be ‘nationally important’ or in need of special protection in UK waters, i.e. there is no facility for designating protected areas for cetacean species, other than bottlenose dolphins or harbour porpoises (species listed under Annex II of the Habitats Directive; see Section 2.3.1.2).
2.4.1.3. Countryside and Rights of Way (CRoW) Act 2000
As noted above, proving ‘intent’ in cases where cetaceans were being disturbed was difficult for the legal authorities. In 2000, in England and Wales, the WCA was amended by the CRoW Act to make it illegal to intentionally “or recklessly” disturb a cetacean603. However, killing, taking and injuring cetaceans must still be proven to be intentional. The CRoW Act also removed the limitation of disturbance to particular places: disturbance of cetaceans anywhere became an illegal act. However, even with these changes – and despite many anecdotal reports of cetaceans being disturbed – no one has yet been successfully prosecuted in the UK under the WCA or CRoW Acts for disturbing a cetacean.604 The courts have had difficulty in determining if disturbance has taken place and, as has been previously noted, the UK’s terrestrially-focused police force605 is not well placed to deal with offences at sea606 (See Breakout Box – Boat disturbance). The CRoW Act introduced the possibility of non-police “wildlife inspectors”, with powers for the investigation of wildlife crime.607 Theoretically these inspectors could investigate instances of cetacean disturbance, although, as currently written, the powers and remit of wildlife inspectors have a very terrestrial focus. Government departments with a marine remit, such as the Coastguard and fisheries protection bodies, would be good choices for competent bodies to deal with marine wildlife crime. Having wildlife inspectors with cetacean expertise (e.g. government officers dealing with marine mammal issues or even members of marine mammal NGOs) would be particularly useful as cetacean behaviour could more accurately be identified and disturbing activities quantified. Ideally, a further amendment to the Wildlife and Countryside Act that outlines marine competent authorities for the enforcement of wildlife crime, and the remit, powers and procedures of such bodies and a duty to co-ordinate effort, would do much to make wildlife law more effective for marine species such as cetaceans.
2.4.1.4. Nature Conservation (Scotland) Act 2004
Nearly four years after the CRoW Act had amended the WCA in England and Wales, the Nature Conservation (Scotland) Act amended the WCA for Scotland. The Act allows the prosecution of anyone who intentionally or “recklessly” kills, injures or takes a cetacean or who intentionally “or
recklessly” disturbs608 “or harasses”609 a cetacean. It should be noted that the exact meaning of
harassment or disturbance is never defined and subject to judicial interpretation.610
601 DETR (1998) 602 Anon (2001) 603 Schedule 12. Section 5. 604 Although, a case was brought before the courts in Scotland under the Habitats Directive regulations in 2004 and another is pending in 2007. 605 To date, no non-police ‘wildlife inspectors’ (Schedule 12, Para 8) have been designated by the Secretary of State with respect to the marine environment. 606 Simmonds (2000). 607 Schedule 12. Section 8. 608 Schedule 6. Section 8 (5) 609 Schedule 6. Section 8 (6) 610 The Oxford English dictionary defines disturbance as: “1. interrupt the sleep, relaxation or privacy of. 2. interfere with the normal arrangement or functioning of. 3. make anxious.” This could be interpreted as actions that cause a change in the normal behaviour of cetaceans and/or interrupts resting behaviour would be causing disturbance. Activities that increase ‘stress’ could theoretically also be disturbing using this definition.
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The “incidental result of a lawful operation and could not reasonably be avoided”
611 loophole (see
Section 2.4.1), was closed slightly by the addition of a few caveats. From the passing of the Act, lawful activities that caused harm to protected species incidentally, would only be exempt from prosecution if the body conducting the activity:
“ (i) took reasonable precautions for the purpose of avoiding carrying out the unlawful act; or
(ii) did not foresee, and could not reasonably have foreseen, that the unlawful act would be an
incidental result of the carrying out of the lawful operation or other activity; and (iii) that the person who carried out the unlawful act took, immediately upon the consequence of
that act becoming apparent to the person, such steps as were reasonably practicable in the
circumstances to minimise the damage or disturbance to the wild animal…"612 The changes, therefore, put some responsibility on bodies that conduct activities to try to avoid or mitigate disturbance, death or injury and, if such occurs, to take action to minimise (but it should be noted they are not required to stop) the impact. The interpretation of some of the exemptions could be quite broad, for example minimal or token mitigation measures might be interpreted as “reasonable precautions”. In addition, an amendment was added to the Act that required Scottish Natural Heritage (SNH)613 to produce a “Scottish Marine Wildlife Watching Code”614. Launched in November 2006, the Code outlines activities that might disturb marine wildlife, circumstances under which marine wildlife should be approached and ways to view marine wildlife “with minimum disturbance”615. Although there was a requirement for SNH to consult with persons “appearing to them to have an interest in marine wildlife
watching and other persons as it thinks fit”616 about the code, or subsequent revisions of it, and are required to both publish and publicise the code617, there is no actual requirement for anyone to use the code or for the code to be legally enforced. However, if someone is not following the code and is believed to be causing disturbance as a result, it may be possible to prosecute for intentional or reckless disturbance using non-compliance with the code as evidence.
Breakout box 3 – Boat disturbance
Human interaction with marine wildlife, particularly marine mammals, is increasing through a growing marine tourism industry and increasing recreational boat use. Approaching cetaceans in an insensitive way can cause stress and, at worst, serious physical injury. Many dolphins around the UK can be seen with scars on their backs or dorsal fins from incidents with boat propellers. This Breakout Box looks at this issue in more detail.
The lack of effectiveness of UK legislation to deal with cetacean disturbance and harassment was illustrated by a study conducted in South West England.618 In this region alone, over a ten year period (including the first few years of the CROW Act amendments to the WCA) 44 incidents of dolphin disturbance/harassment had been reported619, with the vehicles of harassment being motorboats, powerboats and jetskis. When officials responsible for wildlife protection and management were interviewed in the study, many noted that few harassment incidents were reported to the authorities, with many officials being of the opinion that this was due to a “lack of awareness of the
legislationn that had led to confusion amongst agencies and individuals as to who to report potential
instances [of disturbance/harassment] to.” 620
Harassment is defined as 1. torment by subjecting them to constant interference or bullying. 2. make repeated small-scale attacks on (an enemy) in order to wear down resistance. As a definition harassment would be more difficult to utilize in a legal/prosecutorial setting. 611 Wildlife & Countryside Act, Section 10, part 3(c) 612 Schedule 6. Section 9 (b) 613 SNH is a “Quasi-Autonomous Governmental Organization (QUANGO) and is the competent authority for nature conservation in Scotland. 614 Part 3. Section 51. 615 Section 51 (2) (a),(b) & (c). 616 Section 51 (5). 617 Section 51 (6) (a) & (b). 618 Kelly et al. (2004). 619 Harassing/disturbing vehicles included motorboats, powerboats and jetskis. 620 Kelly et al. (2004), p. 10.
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It was also pointed out that gathering evidence of disturbance/harassment in the marine environment is problematic, as noted above (see Section 2.4.1). Another issue, related to enforcement of the law, was that “there is a lack data and diversity of opinions as to what constitutes harassment’.621 To better enforce regulation, it of evidential was suggested that:
(a) enforcement should be in partnership with agencies working on the marine environment;
(b) more information is needed on amounts of vessel traffic and the behavioural responses of marine wildlife to these vessels; and
(c) statutory agency, NGO and other staff need to be more fully briefed on their role in providing information on disturbance/harassment and need to work in partnership with the enforcement agencies.622
The study also interviewed and surveyed a broad selection of marine stakeholders to ascertain their awareness and opinions of regulations to protect cetaceans and other marine wildlife. The researchers found that over half of the respondents (52%) stated that they had witnessed a potential incident of marine wildlife disturbance, and 72% of the respondents were aware that there was legislation to protect species such as cetaceans, but very few could state any specific provisions of the legislation or exactly what species were covered.623 When asked to whom they would most likely report incidents of disturbance/harassment to, the two most common responses were as follows:624
(a) the Coastguard625; and
(b) the Royal Society for the Prevention of Cruelty to Animals (RSPCA).626
The majority of the marine stakeholders interviewed considered that incidences of cetacean harassment were increasing and, in terms of practically managing the impacts of vessel traffic on marine species, the most popular options were education, codes of conduct and distance/approach limits.627 80% had seen codes of conduct for minimising impacts of boat traffic and most thought them useful, although it was noted that there are perhaps too many different codes available, a comment that is relevant to the code of conduct issues in Scotland (see Section 2.4.1.4).
In conclusion, the researchers listed three main issues that, in their opinion, were preventing effective protection of cetaceans and other marine wildlife in England, despite regulations and the CROW Act amendments. These issues were:628
(a) a lack of awareness of wildlife protection legislation;
(b) a lack of disturbance/harassment incident reporting; and
(c) a lack of coordination and consensus among agencies and conservation practitioners;
and to this we would now add:
(d) a clear understanding in law (and also in science) of what constitutes disturbance (or harassment).
One recommendation to improve the situation was the introduction of a widely publicised protocol for the reporting of wildlife crime. Clear information on who to report crimes to (and what ‘crimes’ might entail) could be displayed on posters in key areas – for example, posters and flyers at marinas or chandlery shops indicating where and how to report incidents relating to cetaceans. Reports of incidents, along with information and figures on successful and unsuccessful prosecutions could be kept as part of a national wildlife crime reporting system, in a centrally co-ordinated database. Overtime, this will enable the identification of problem areas and the focussing of resources for increased efficiency.
621 Ibid. 622 Kelly et al. (2004). 623 Ibid. 624 Ibid. 625 not the appropriate authority as wildlife law enforcement is carried out by police wildlife liaison officers 626 The RSPCA is an non-governmental organisation and does not have the authority to enforce and prosecute wildlife crime cases. It is interesting to note that although the RSPCA was perceived to be a main authority to report disturbance/harassment cases to, Kelly et al. (2004) noted that the RSPCA had no records of anyone ever reporting an incident of marine wildlife harassment to them. 627 Kelly et al. (2004) 628 Ibid.
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A second recommendation, which was supported by over half of the respondents in the above study, was the introduction of ‘no-go’ zones as a potentially effective means of managing boat-based disturbance.629 This is a protective measure that has yet to be considered in the UK. It is suggested that pilot ‘no-go’ zones, or alternatively speed restriction zones, could be introduced in areas where boat traffic–related death, injury, disturbance and harassment are a problem for marine protected species (including cetaceans) in the UK, with appropriate accompanying enforcement provisions and a monitoring scheme to determine their effectiveness. This could be introduced by giving bylaw-making powers to competent authorities to create inshore zones for the protection of wildlife.
Finally, the development of a consolidated code of conduct with statutory backing is needed to set the standard and provide guidance to both leisure and commercial vessels as to how to behave to minimise disturbance to marine wildlife. The requirement to develop just such a code was recently introduced to Scotland via the Nature Conservation Act 2004. This amendment was introduced, at least in part, in response to concerns about cetacean-watching activities, both commercial and leisure, in the Moray Firth. In this area there is an active bottlenose dolphin-watching industry but there have been concerns about the impacts of boat traffic in the region on the animals for some years630. The “Dolphin
Awareness Initiative” was launched in 1993, followed by the “Dolphin Space Programme” (DSP) in 1995 in an attempt to address these concerns. The DSP developed a general code of conduct for all boat users, together with a voluntary accreditation scheme for operators, requiring the latter to use certain agreed routes and behave in certain ways – for example, not stopping to view the animals631. A project officer was employed to initiate the scheme, but this position was only temporary and expired after 1997. However, a new DSP officer was appointed early in 2005. It has been noted that when anonymous observers monitored dolphin-watching boats after the loss of the original DSP project officer, 50% of sampled tours contravened the DSP code of conduct in the first year of study, and 80% contravened the code in the second year.632
In a survey of whale-watching tour operators from throughout Scotland, 86% replied that they followed a code of conduct.633 However, codes of conduct used by operators vary greatly in the advice they give with some far more restrictive than others and some still just voluntary guidelines; the most popularly used being ones developed by a marine tourism association and a local environmental group634. Few had heard of previous whale-watching guidelines produced by the government, and none of the operators used these – which demonstrates that officials made little attempt to publicise and encourage compliance with previous government produced codes, and/or there may have been resistance to a ‘top-down’ approach to controlling whale-watching activities.635 There are currently more than ten different voluntary codes of conduct or guidelines for marine mammal watching in Scotland,636 and studies elsewhere have indicated that multiple codes can lead to confusion and ineffective management.637 The development of an ‘official’ code of conduct sets out a minimum code of practice for boat operators, which also acts as a guide to enforcers as to which actions are or are not considered to cause disturbance and make the prosecution of cetacean harassment easier. Those boat operators found undertaking such actions prohibited by the guidelines could feasibly be seen as committing an offence (see Section 2.4.1.4).
Leisure craft are also a source of boat based disturbance and are typically regarded as a more difficult sector to engage with and educate than commercial operators. This is because they are a much larger, widespread group, which unlike whale-watching tour operators, does not have an obvious economic interest in ensuring the long-term survival of a cetacean population.
Whale-watching codes of conduct in Europe are often voluntary, relying on people’s co-operation, as opposed to elsewhere in the world where regulations are often enshrined in legislation.638 However, enshrinement in legislation is no guarantee of compliance, mainly because the legislation is often not backed up by enforcement.639 An effective way of promoting compliance with laws or voluntary regulations might be the instigation of several marine wildlife tourism officer positions, in a similar
629 Ibid. 630 For example, Janik and Thompson (1996); Arnold (1997); Hastie et al. (2003a). 631 See Arnold (1997) for details about the project. 632 Simmonds et al. (2004) 633 Parsons and Woods-Ballard (2003) 634 Ibid. 635 Ibid. 636 Ibid. 637 Kelly et al. (2004) 638 Garrod and Fennel (2003) 639 For example, Scarpaci et al. (2003a); Scarpaci et al. (2003b) and Whitt (2003).
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vein to the DSP officer, to be located in areas of high marine tourism activity, or areas with particularly vulnerable marine populations. The functions of such officers640 could include:
(1) assisting with the improvement of educational materials available to tourists taking part in whale-watching activities, including helping tour operators gain grants for educational work and materials;
(2) developing and organising training courses for operators (for example courses on education/interpretation techniques and methods);
(3) developing schemes and protocols through which tour operators could assist in monitoring marine mammal (and other key marine species) populations (such as sightings report schemes);
(4) working in tandem with relevant authorities to ensure that if cases of disturbance occur, or laws are broken, then appropriate measures are taken and evidence collected so that an effective prosecution can be brought against the offender.
2.4.2. The Conservation (Natural Habitats, &c.) Regulations 1994
The Habitats Directive was translated into UK law via the Conservation (Natural Habitats, &c.) Regulations (CNHRs) in 1994 though certain intents of the original Directive seem to have been weakened in the process. The species protection provisions included in the Directive (see Section 2.3.1) are accompanied in the CNHRs by the defence that activities can be exempt if they were the “incidental result of a lawful operation and could not reasonably have been avoided”, even though the Directive contained no mention of such exemptions. This is the same defence that is included in the WCA (see Section 2.4.1). A recent Advocate General’s opinion641 found that this defence was incompatible with the Habitats Directive.
The Habitats Directive requires EU member states to "establish a system to monitor incidental capture
and killing" of cetaceans642 and to instigate "further research or conservation measures as required to
ensure that incidental capture and killing do not have a negative impact".643
Unfortunately there is currently no legal basis within the UK for the required monitoring system as mention of such a system was omitted from the CNHRs. This also means that the requirement for research and conservation measures is effectively negated since there is no statutory monitoring or evaluation scheme upon which to build recommendations for further research or conservation. The regulations may be amended to include provisions for this monitoring system644, but to be effective, the amendment will need to outline clearly what is meant by “a monitoring system” and a process through which further research work can be proposed and, importantly, funded. Defra recently consulted on the draft Conservation (Natural Habitats, &c.) (Amendment) (England and Wales) Regulations 2006 and a response to the consulation is expected in the near future.
It should be noted that an amendment of the CNHRs to introduce a statutory monitoring scheme for incidental cetacean capture/mortality, although primarily for monitoring fisheries bycatch, could, and should, also monitor other forms of harm. Such a monitoring scheme should be part of a wider programme of assessment and mitigation of negative impacts on protected species from lawful operations (as discussed in Section 2.4.1).
2.4.3. Regulation of Offshore Oil Industry Activities
640 Based on suggestions presented in Simmonds et al. (2004). 641 Opinion of Advocate General Kokott delivered on 9 June 2005. Commision of the European Communities v United Kingdom of Great Britain and Northern Ireland (Conservation of natural habitats – wild fauna and flora) 642 Article 12, Para 1. 643 Ibid. 644 Via the Conservation (Natural Habitats, &c.)(Amendment)(England) Regulations which were consulted on in 2003 but have yet to be brought into force.
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In 2001, regulations were enacted by the relevant authorities that were intended to implement the Habitats Directive for all oil and gas activities within UK waters.645 As part of these regulations any company wishing to carry out a seismic survey on the UK continental shelf area (UKCS) must apply for permission from the UK Department of Trade and Industry (DTI) which then consults with the Joint Nature Conservation Committee (JNCC) on the application.646 If permission is granted, the company conducting seismic surveys is required to follow a set of guidelines produced by the JNCC that are intended to minimise disturbance to cetaceans647 (see Breakout Box – Seismic guidelines).
The guidelines offer suggestions as to what oil exploration companies should do during the planning stage of the surveys, during the surveys themselves and define what information regarding the survey and marine mammals sighted should be submitted to the JNCC after the survey’s completion. The government has acknowledged that these seismic survey guidelines “[are] largely based on “common
sense” measures and it is difficult to establish whether they work and/or could be made more
effective”. 648
Breakout Box 4 – Seismic guidelines There are a number of major flaws in the current JNCC guidelines:
1. For the planning stage, the guidelines suggest that surveyors examine existing literature to determine whether marine mammals are likely to be present. However, there are many areas within the UK’s Economic Fisheries Zone (EFZ) where cetacean survey data are scant or non-existent and there is no guidance about what to do in such instances. It can thus be argued that the guidelines are not explicitly precautionary. Indeed, if there are no or inadequate data on cetacean distribution in an area to be surveyed, any company wishing to prospect or otherwise develop there should be required to conduct cetacean surveys to determine distribution, population size and habitat use, at the very least.
Unlike permitting processes elsewhere, such as the US Marine Mammal Protection Act, there is no requirement for the oil companies to calculate the proportion of cetaceans in a stock or population that are likely to be disturbed or otherwise affected by their activities. The only general protective measure suggested in the guidelines is that surveys should be timed to avoid breeding or calving periods.
Start Up and Zone of Impact.
2. The guidelines require that an observer649 should visually search the surrounding waters for 30 minutes prior to the commencement of the seismic survey. If a marine mammal is seen within 500m of the centre of the seismic gun array then the firing must be delayed until the marine mammal has moved away, allowing adequate time after the last sighting for the animal to move away (20 minutes). We question whether this is really adequately protective.
3. This proposed 500m zone of impact is in effect arbitrary. As yet there has been no in-field research to suggest that animals will not be disturbed by seismic surveys beyond this radius from the centre of the array. Presumably, the 500m zone of impact was calculated using models based on hearing abilities and thresholds of captive animals. Using such data is problematic as studies have shown that wild animals can have better hearing capabilities than captive animals.650,651 Part of the problem may be the high prevalence of loss of hearing or sensitivity in captive animals, presumably due to exposure to high levels of noise in the captive facilities.652
645 The Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001. 646 The scientific advisory body to the UK government for UK wildlife issues. 647 These are available from: http://www.jncc.gov.uk/page-1534#1785#1785 648 Department of Trade and Industry (2002), p. 156. 649 Two observers are requested for periods of the year when daylight hours exceed 12 hours a day, the implication being that the observers take it in turns to be available to monitor prior to starting seismic blasting. 650 For example when studies on the hearing abilities of captive beluga whales were used to calculate the distance at which the whales could detect shipping traffic, a distance of 20 kilometers was estimated. However, observations on wild animals showed that beluga whales were detecting vessels at distances of well over 80 kilometers, and were actively avoiding shipping at distances up to three times farther away than the captive studies would have estimated (Findley et al., 1990). 651 A recent study on harbour porpoise responses to play backs of low frequency sounds produced during wind farm operation noted that the distance between the porpoises and sound source significantly increased, and the porpoises increased their rate of echolocation, even though, according to captive animals studies, the porpoises shouldn’t have been able to detect these low frequency sounds (Koschinski, et al., 2003). 652 Ridgeway and Carder (1997)
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Research has also shown that captive animal data is inappropriate for predicting the disturbance reactions of wild animals to seismic survey noise. For example, one study noted that wild dolphins fled noises produced during oil exploration at sound levels of 48dB. This is over 10,000 times quieter than predicted by studies on captive animals653 Therefore, using models based on captive animal data to predict impacts is a flawed approach, and zones of disturbance based on observations of wild animals would be preferred.654
It is possible that the zone of impact was not based on the best scientific evidence of the hearing abilities of cetecans and models of predicted impacts, but was simply an arbitary distance chosen by the JNCC, which has subsequently been adopted – as the Government notes that the guidelines were largely based on “common sense”655 and not scientific observation or analysis.
One of the few published field studies on the effects of seismic noise on UK cetaceans noted that:
“dolphins find the seismic signal levels at 1km and closer distressing”656 and also:
“…work needs to be done to determine “safe” distances at which high source sounds are
tolerable to dolphins. Our best estimate at present for dolphins….is 1km”.657
Government scientists have also noted that a sperm whale that was 2km away from a seismic array exhibited a “startle” reaction, surfacing suddenly and swimming on the surface away from the seismic source.658 Therefore, considering data published in peer-reviewed studies and the DTI’s own assertion that with respect to seismic surveys, disturbance within 1-2km is likely659; the zone of impact should be increased from 500m to 1km at the very least. An even larger zone of impact may be warranted as studies have shown that seismic survey noise can be detected 3000km or more from the source, and at levels so loud that they were masking660 cetacean vocalisations.661
4. Observations are only required immediately prior to the start up of surveys. It is possible that cetaceans could be within 500m of an active array, however no delay or cessation of the survey is required once it has started. This 30 minute visual survey exclusively at the start up point also means that no consideration is given to the distribution and densities of marine mammals throughout the total area to be surveyed.
5. The 500m radius also assumes that sound diminishes equally around the array and that there is no effect due to weather conditions, water temperature, salinity, depth or any other factor that might increase the distance at which disturbing levels of sound could travel from the seismic source. However, the acoustic properties of water can change dramatically according to temperature, salinity and other factors, such as the depth of the survey area.662 Therefore, it is suggested that detailed studies are conducted to calculate levels of received noise at various distances from a seismic source, and measuring the effects of oceanographic factors, to ultimately determine impact zones that can be varied according to oceanographic conditions, or a precautionary zone that takes into account the oceanographic conditions that could cause a maximum transmission of sound.
6. The guidelines also do not appear to take into account the number of airguns (the devices that produce the seismic blasts) used in an array. The greater the number of guns, the greater the sound output. For example, one study investigating the noise output of seismic surveys from the research vessel Maurice Ewing, predicted that noise levels would be 160dB 2.7km from the array if 6 airguns were blasting, 6.5km with 10 airguns, 7.25km with 12 airguns and 9km with 20 airguns.663 The zone of impact, and the area monitored, should therefore increase according to the number of airguns used.
653 Gould and Fish (1998). See also Gould and Fish (1999). 654 NB. This does not suggest that animals should be deliberately exposed to high levels of sound until a disturbance reaction is apparent, but rather that data should be systematically collected on reactions and distances of animals around operating seismic survey vessels to ascertain a minimum radius of impact. 655 Department of Trade and Industry (2002), p. 156. 656 Gould and Fish (1998), p. 2183. 657 Ibid. 658 Stone (2003). 659 DTI (2001) 660 The sound levels were so loud that they were swamping, and making undetectable, vocalizations of cetaceans (see Parsons and Dolman, 2003). If these vocalizations are alarm or mating calls, calls between mothers and calves, or vocalizations by which cetaceans navigate or find food, such masking could have biologically significant impacts on the animals. 661 Nieukirk et al. (2004). 662 For example: Tolstoy et al. (2004). 663 The predictive data was from Tolstoy et al. (2004). It should be noted, however, that sound levels when tested in open water tended to be slightly lower than predicted in deep water, but higher than predicted in shallower water.
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Observation period
7. Many of the cetaceans likely to be present in areas being seismically surveyed would be deep diving sperm whales or beaked whales. These animals can remain submerged for over an hour.664 A 30 minute observation period, indeed several of these periods, could easily be within the duration of one sperm whale or beaked whale dive, so the chance of animals being observed at the surface is low.665 Arguably, this is particularly an issue for beaked whales, several species of which occur on or near the edge of the UK Continental Shelf and within the UK EFZ,666 and are likely to be in encountered in areas being seismically surveyed.
At a recent international workshop on beaked whales convened by the US Marine Mammal Commission667 it was noted that the probability of observers actually sighting a beaked whale in the zone of acoustic impact for seismic surveys was less than one in ten, thus indicating that these guidelines are ineffective. Indeed they may be doing more harm than they are mitigating as they may be giving the authorities and oil companies a false sense of security that their impacts are being reduced. This means that activities may be allowed to be conducted in areas with sensitive cetacean populations, that may not have been allowed if mitigation measures did not exist.
8. Passive acoustic surveys (i.e. listening for cetacean vocalisations) are suggested as an additional survey method that could be required by the JNCC for surveys in particularly sensitive areas. Not only should this detect diving animals, but also means animals could be detected at night and in rough weather conditions.668 These passive acoustic surveys do have the ability to detect some cetacean species that vocalise frequently (e.g. sperm whales),669 which would reduce a number of the concerns noted above for certain species, but not for species whose vocalisations are unstudied or that rarely vocalise (i.e. beaked whales670). Passive Acoustic Monitoring (PAM) as a method to determine cetacean presence or absence also assumes that cetaceans will be vocalising continuously, which is not the case.671 One study on UK common dolphins showed that although vocalisation rates were relatively high at night, rates decreased for portions of the day, meaning that “acoustic detection probability is reduced.”672 Another major flaw in this method, in relation to sperm whales, was shown by research that noted that they may, in fact, cease vocalising when exposed to seismic survey pulses.673
Soft Start
9. The other main mitigation method offered by the JNCC guidelines is the ‘soft start’. This is a slow ramp-up of seismic blasting over a period of 20 minutes. This is “to give adequate time for marine mammals to leave the vicinity”.674 However, this ramp-up period is somewhat arbitrary as there seems to be little evidence to show that animals do exit the area in this time-frame. Although common dolphins have been seen avoiding seismic surveys in this fashion,675 there is no evidence to suggest that this is the case with baleen or sperm whales. Indeed, deep diving species may dive to avoid a disturbance but this ‘vertical displacement’ might not remove them as far from the sound source as a horizontal movement (as expected to be executed by surface layer dwelling cetaceans) and would also make them even harder to detect. A recent study on avoidance alarms for Northern right whales showed, to the researchers’ surprise, that instead of moving away from the alarms, the whales were brought near to them (5m beneath), but rarely broke, the sea’s surface.676 So avoidance reactions for this species were vertical rather than horizontal, and in the case of the Northern right whale actually made the animals more vulnerable to anthropogenic threats such as ship strike. For beaked and sperm
664 Kooyman (2002) and Stewart (2002). 665 Watkins et al. (1993); Hooker and Baird (1999); Forney (2002). 666 MacLeod (2000). 667 Workshop held Baltimore, 13-16 April 2004. 668 Gordon and Tyack (2002). 669 Lewis et al. (1998). 670 Frankel (2002) 671 The variability of production of cetacean calls is noted as a problem and drawback for this method of cetacean detection on pages 307 and 308 of Gordon and Tyack (2002). 672 Gould (2000), p. 244. 673 Bowles et al. (1994) 674 Page 4 in JNCC (2004a). 675 Gould (1996). 676 Nowacek et al. (2004)
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whales, an escape reaction that drove the animals towards the surface, could potentially cause the onset of a decompression sickness-like effect (see Section 1.3.2.2.3).677
Observers
10. The guidelines only require experienced, dedicated, Marine Mammal Observers (MMOs) for waters off the British west coast and within candidate SACs (see Section 2.3.1.2). Observers are also required outside of these areas, but they do not need any experience or expertise - indeed, they may not even necessarily have to have seen a live cetacean before. The importance of using experienced MMOs is shown by the Government’s own research: For Government monitored seismic surveys conducted between 1998 and 2000, compliance with all aspects of the seismic survey guidelines were found to be poorer when non-dedicated observers were used.678 For example when marine mammals were detected within the 500m zone of impact when an MMO was present, the guidelines were followed and the survey was delayed 70% of the time.679 This figure fell to 0% when Fisheries Liason Officers or ship’s crew were used. However, MMOs were only used on 19% of Government monitored seismic surveys during this period.680 Fisheries Liason Officers and ship’s crew members were relied upon for other surveys (with delays of 56% and 20%, respectively).681
Appropriate experience is an important criterion in the selection of effective field observers. The guidelines should be amended to ensure that all observers are experienced, able to spot accurately and identify all cetacean species that are likely to occur in UK waters, and have experience in conducting surveys in environmental conditions that are common in UK waters (e.g. heavy seas and poor visibility).
11. The requirement for only one dedicated observer also reduces the likelihood of cetaceans being sighted, in fact, the regulations emphasise that at “no time are these guidelines meant to imply that
[Marine Mammal Observers] should keep a watch during all daylight hours”682 In contrast to the
single observer used to monitor seismic surveys, for dedicated cetacean surveys 2 teams of 2 to 3 observers are more usual.683 Other studies suggest that up to 5 observers are required for effective surveys.684 Typically, observers are also rotated to prevent them from becoming fatigued and loosing concentration. Thus, the number of marine mammal observers required by the guidelines should be increased, and maximum observation durations and lengths of observer shifts should be proposed.
Environmental Factors
12. No consideration is given to environmental factors that would be expected to reduce the observer’s ability to spot cetaceans, such as fog, rain, rough weather, or how to proceed at night. Scientific cetacean surveys typically are not conducted in sea states greater than Beaufort 5685 as rough weather severely reduces the ability to sight cetaceans. At a minimum, seismic surveys relying on Marine Mammal Observers as a mitigation measure should not be conducted in sea states greater than Beaufort 5, during fog, or at night, as there can be even less of a guarantee that there are no cetaceans present in the impacted area.
Compliance and Enforcement
13. It is assumed that these guidelines will be adhered to by the oil and gas industry, as there is no government monitoring of the seismic activities or enforcement of the guidelines. The JNCC is reliant upon oil companies to be honest and forthright about their activities and whether cetaceans were indeed sighted. This aspect requires consideration and the guidelines should at least have a minimum requirement that one government observer accompanies seismic surveys in sensitive areas to oversee and monitor activities.
Data
14. Finally, seismic surveys take place in many areas where very little information on cetaceans is available. If it were made a requirement that only trained and experienced MMOs were to be employed (and in sufficient numbers), data on cetacean sightings, behaviour and reactions to seismic noise could
677 Such as seen in Jepson et al. (2003) and further discussed in Fernández et al. (2004). 678 Stone (2003). 679 Ibid 680 Ibid. 681 Ibid. 682 Page 4 in JNCC (2004a). 683 For example Wade and Gerrodette 1993, Barlow 1995, Jefferson 1996, Aragones et al. 1997, Jefferson, 2000. 684 Aguliar de Soto et al. (2003). 685 Wade and Gerrodette 1993, Jefferson 1996, Aragones et al. 1997, Jefferson, 2000.
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usefully be collected and help to fill data gaps. Standardised methods would need to be developed by the JNCC but given the need for this data and the expense involved in organising offshore cetacean surveys, taking advantage of these opportunities would seem to be good “joined-up” thinking. Collecting this data would allow for a more honest and informed assessment of the impacts of seismic surveys on cetaceans and the mitigation measures employed via the guidelines.
2.4.4. UK Biodiversity Action Plans In response to the UK’s commitment under the Convention on Biological Diversity to develop “plans
or programmes for the conservation and sustainable use of biological diversity”,686 (see Section 2.1.2), in 1994 the UK Government initiated the development of a series of national conservation action plans for species and habitats. Habitat Action Plans (HAPs) have been developed for a variety of marine habitats, including: saline lagoons, mudflats, seagrass beds, tidal rapids, oceanic seas, maerl beds and reefs of Lophelia pertusa, Sabellaria alveolata, S. spinulosa and serpulids. Marine Species Action Plans (SAPs) have also been developed for various marine species, including sea squirts, sea anemones, elasmobranchs and sea turtles amongst others. Cetaceans are currently provided for nationally by ‘grouped’ Species Action Plans for baleen whales687, toothed whales688 and small dolphins689. The harbour porpoise is also the focus of a single Species Action Plan.690
The UK BAP process as a whole has undoubtedly progressed biodiversity conservation in the UK by creating a mechanism that brings together all the sectors and levels involved, from high level policy to ‘on the ground’ action, and provides a means to consider how we are to conserve biodiversity in the wider environment. Progress on marine habitats and species plans however, has been much slower and more limited than on land, and the cetacean plans are no exception. Targets have been missed, many proposed actions have not been progressed and the good quality data essential to feed into the process remains absent.
2.4.4.1. Targets and Objectives
The aims of the cetacean plans, in the short-term, are to maintain the range and abundance of the listed cetaceans. The long-term691 goals of these plans are stated as being to: increase the range of dolphin populations, increase baleen whale population sizes and ranges, increase toothed whale abundance “by
seeking to optimise conditions enabling their populations to increase” and, for the harbour porpoise, to “ensure that no anthropogenic factors inhibit a return to waters that it previously occupied”. For the toothed whales, the implication is that numbers will be increased by protecting and/or restoring toothed whale habitat to increase the carrying capacity of said habitat. The long-term goals for the harbour porpoise and dolphins do not call for an increase in numbers of animals, which is odd considering one of the reasons that harbour porpoises are considered to be vulnerable and a conservation priority is unsustainable levels of fisheries mortality692 and resulting loss of animals.
2.4.4.2. Actions
Various conservation actions are proposed by the national BAPs which typically involve trying to reduce, mitigate, assess or monitor a variety of threats. Several actions also propose investigating, evaluating or instigating MPAs, or conducting research to investigate habitat. Progress in attempting or completing these actions has been slow, sometimes seemingly because of a lack of will or resources on the part of the actioning body whilst, on other occasions, it appears to be due to inappropriate bodies tasked to complete the action. Inconsistencies between the plans with respect to which actions are listed, and which bodies are tasked to take these on, also seem problematic. Specific examples of failures and inconsistencies within the national BAPs are discussed below.
686 Article 6 (a). 687 Grouped plan for baleen whales: http://www.ukbap.org.uk/UKPlans.aspx?ID=753. 688 Grouped plan for toothed whales: http://www.ukbap.org.uk/UKPlans.aspx?ID=339. 689 Grouped plan for small dolphins: http://www.ukbap.org.uk/UKPlans.aspx?ID=337. 690
Harbour porpoise action plan: http://www.ukbap.org.uk/UKPlans.aspx?ID=514. 691 For baleen whales, “long-term” is stated as being “over the next 20 years”, a period which, since the inception of these action plans, is nearly half over. 692 As illustrated by Tregenza et al. (1997).
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2.4.4.2.1. Actions not achieved / targets missed
There has been notable failure by the national BAPs to achieve targets regarding a target date for fulfilment. For example, introduction of “codes of practice”693 or encouragement to use, and promotion of, codes of conduct to minimise disturbance through whale or dolphin watching is mentioned in several action plans.694 For several of the plans695 it is stated that this should be done by noted government bodies696 by 2001. Whilst some authorities have done this in the time period stated,697 most have not.
By 2001, the baleen whale grouped plan had required that government bodies698:
“Review DETR guidelines for minimising disturbance to cetaceans from whale watching
operations and from recreation at sea”
Although this was in effect done699 it was done by a non governmental organisation NGO, and without governmental funding.
Returning to MPAs, the problems of their designation have been noted previously (see Section 2.3.1.2), in particular the difficulty of designating areas under present criteria, and lack of action to identify or designate harbour porpoise SACs by the UK Government. This is despite the fact that these very two issues are denoted as actions under the UK harbour porpoise BAP:
“Expand research on the areas frequented by harbour porpoise to identify waters which may
qualify for further protection as SACs or Marine Nature Reserves.”
“Review existing UK marine site protection to determine how it might be improved. If
appropriate, introduce additional protection and emergency designation to benefit the
species.”
For dolphins, the BAPs note the need to:
“establish marine protected areas for small dolphins which take into account the likelihood of
human activities that would be harmful to cetaceans living there.”
The action notes that this should be done by 2004 by the noted government bodies.700 This has arguably been partly accomplished by the designation of candidate SACs for bottlenose dolphins in Cardigan Bay and the Moray Firth, for Wales and Scotland (see Section 2.3.1.2 and Breakout Box - SACs). But there has been no such designation for Northern Ireland, and the candidate SACs only protect bottlenose dolphins, just one species out of the many intended to be protected by the ‘small dolphins grouped plan’. Another action in the dolphin grouped plan is to:
“Give consideration to the feasibility of marine protected areas for dolphins in the context of
the proposed DETR working group on marine protected areas. These should include
consideration of the importance of the area for calving, as a nursery ground and for feeding.”
Again, there has been no serious consideration of any dolphin species other than bottlenose dolphins. With respect to the protection of calving areas and feeding areas, for the majority of dolphin species in the UK, this would require a dedicated research program to identify such areas – there is no evidence that such a dedicated, in-depth programme will be forthcoming from agencies such as DEFRA or JNCC in the near future.
693 Harbour porpoise action plan. The plan also notes the need to “Continue to introduce agreed codes of conduct to reduce
disturbance from acoustic sources and physical pressures” in addition. 694 Grouped plans for small dolphins and toothed whales. 695 Ibid. 696 Specifically the Countryside Council for Wales (CCW), English Nature (EN), Scottish Natural Heritage (SNH), the Department for Environment, Transport and Regions (DETR- now the Department for Food, Environment and Rural Affairs: DEFRA), Department for Culture, Media and Sport (DCMS), and the Environment and Heritage Service (EHS - an agency within the Department of the Environment for Northern Ireland [DoE NI]) . 697 For example, Scottish Natural Heritage had given grant aid to fund the production of, and had actively distributed several codes of conduct prior to the 2001 deadline. 698 CCW, DETR, EHS, EN, JNCC, SNH and the Natural Environment Research Council (NERC). 699 Parsons and Woods-Ballard (2003). 700 DETR (now DEFRA) , DoE(NI), National Assembly of Wales (NAW), and the Scottish Executive (SE).
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In addition to the MPA and baleen whale research such as that prioritised above, there are also calls for research into acoustic impacts on some species,701 bycatch,702 and pollution703 noted in the BAPs. There is certainly a need to conduct research into cetacean habitat use704 and ecology, in particular the impact of fisheries on prey availability.705 Getting even basic information on cetacean abundance around the UK coastline and, especially, determining trends in this abundance is important706 – particularly for evaluating whether UK conservation actions are successful and stocks are recovering.
Apart from funding for existing projects, such as the important DEFRA-funded707 stranding collection and analysis scheme708, 709, there has been little evidence of government bodies putting funding towards other urgent studies. Certainly the UK Government does not possess the ‘in-house’ expertise or logistical ability to conduct such, often long-term, research. The most practicable and cost effective way to get these research projects and conservation targets completed would be for those government bodies that have committed to research-based BAP actions,710 to provide funding to a central grant giving body, or trust fund. This fund could be overseen by an appropriate and representative board of trustees, who would then allocate funding to proposed research projects or initiatives by non-governmental scientific organisations, that would address BAP priority research needs in the most cost effective and productive way.
Climate change and its impact on cetaceans has also been an area that has been highlighted by several plans,711 and is perhaps one area where BAPs have suggested specific conservation actions that have not been addressed by other conservation initiatives. These plans could have major impacts on UK cetacean conservation: both in terms of conserving the animals and also the management schemes utilised. For example, could increasing water temperatures predict a shift in dolphin distribution? In such a scenario, bottlenose dolphins might well evacuate the Moray Firth and Cardigan Bay SACs and these MPAs would become irrelevant.
2.4.4.2.2. Inconsistency of actions
There are several inconsistencies between BAP actions. For example, where actions to address a threat have been put forward for some species, other species that are also threatened are not afforded a similar conservation action. Although a need for research on acoustic disturbance is noted as a key action for several of the cetacean action plans,712 with the dolphin grouped plan specifically noting the need for both short-term and long-term studies, it should be emphasised that there are no actions calling for the investigation of the effects of acoustic impacts on porpoises, neglecting the issue that noise may be one of the “anthropogenic activities” preventing re-colonisation of waters.713
701 Toothed and baleen whale, and small dolphin grouped plans. 702 For example: “Commission acoustic and video research on behavioural aspects of cetacean by catch to better understand ways to mitigate conflicts from particular fisheries.” (Grouped plan for small dolphins). 703 Grouped plans for small dolphins, toothed whales and baleen whales. 704 For example: “Support research into population structure and habitat use to identify waters which may be particularly suitable for toothed whales and which may qualify for further protection.” (ACTION: CCW, EHS, DETR, JNCC, SE). Grouped plan for toothed whales. 705 For example: “Support appropriate research into identifying marine living resources utilised by [toothed and baleen] whales and the environmental changes related to fishing.” (ACTION: DANI, JNCC, MAFF, SE). Grouped plans for toothed and baleen whales. 706 For example: “Support long-term monitoring of population abundance and distribution via dedicated surveys and platforms of opportunity.” (ACTION: CCW, DETR, EHS, JNCC, MAFF, SNH). Group plan for toothed whales. Also: “Support long-term monitoring of population abundance and distribution to assess recovery from whaling. Consideration is needed of previously unused data on cetacean distributions such as Hydrographic Office surveys.” (ACTION: DETR, EHS, JNCC, MAFF). Grouped plan for baleen whales. Also: “Establish long-term research on population and conservation needs of all small cetaceans in UK waters, co-ordinated through ASCOBANS.” (ACTION: DoE, DOE(NI), JNCC). Harbour porpoise action plan. 707 However, other government bodies are noted actors in addition to DEFRA in the cetacean BAPs for this action (e.g. CCW, DoE(NI), EN, JNCC, SNH, SOAEFD, DANI (Department of Agriculture of Northern Ireland – now called the Department of Agriculture and Rural Development). and WOAD (Welsh Office Agriculture Department) . So should they should be either required to add additional funding to such research, or should these bodies be removed from the action point if totally superfluous. 708 These schemes are run by the Institute of Zoology (for England and Wales) and the Scottish Agricultural College (for Scotland). These programmes have provided extremely valuable information on cetacean contaminant levels and disease exposure in stranded animals as well as determining cause of death. 709 Grouped plan for small dolphins and harbour porpoise action plan. 710 Such as JNCC, DEFRA, NERC, DoE(NI), NAW, SE and other devolved conservation bodies. 711 Grouped plans for small dolphins, toothed whales and baleen whales. 712 Toothed and baleen whale, and small dolphin grouped plans. 713 One of the long-term aims of the harbour porpoise action plan.
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There are acoustic threats that are of specific relevance to harbour porpoises, for example Acoustic Harassment Devices (AHDs) or ‘seal-scrammers’, that are designed to displace predators from around fish farm sites are known to displace harbour porpoises from their habitat714 and concern has been raised about the impact of these devices on porpoises in UK waters.715 Decreases in harbour porpoise sightings have also been reported during periods of naval exercises in UK territorial waters, presumably due to acoustic disturbance.716 Although UK government bodies have funded some research into the AHD issue,717 acoustic disturbance and its displacement of harbour porpoises from their habitat should be included as a research priority in the harbour porpoise action plan.
2.4.4.2.3. Inconsistency of bodies to fulfil actions
In addition to the problems identified above the designation of those responsible for fulfilling actions is often inconsistent and illogical. For example, which authorities are responsible for promoting an understanding of the effect of underwater noise on cetaceans718 and who is supporting and funding research on the effects of noise on cetaceans?719 Particularly, there is a notable absence of Northern Ireland’s devolved conservation authority, which is surprising considering the military and seismic activities off their coastline. Better co-ordination and attention to drafting the plans would have simply solved these inconsistencies.
2.4.4.2.4. Incomplete actions
There are several actions within the BAPs which, although they address part of a problem area, have serious holes. An example of such partial actions can be illustrated with respect to the need to protect populations of baleen whales, for example:
“Support attempts to identify and protect the breeding sites of any remnant eastern Atlantic
right whale or humpback whale population.”
It is pleasing to note the emphasis that the “endangered” North Atlantic right whale and the “vulnerable” humpback whale receive with respect to protecting their breeding areas, although it is somewhat strange that species that may be considered to be more threatened than humpback whales, that occur in, and could be breeding within UK waters are not specifically mentioned: the blue whale, fin whale and sei whale (see Section 2.1.5). Arguably the breeding areas of all baleen whales should be identified and steps taken to protect them.
Another example can be provided with respect to pollution. For example one of the main actions in several of the cetacean BAPs720 is to reduce:
“the discharge of substances which are toxic, persistent and liable to bioaccumulate, giving
priority to the discharge and leaching of PCBs and organochlorines.”721
The harbour porpoise action plan has slightly stronger wording, stating the requirement of:
“giving priority to phasing out identifiable PCBs, and reducing discharges of organohalogens to
safe levels.”
However, what exactly is meant by ‘safe levels’? Does this mean levels in porpoise tissues, in their blood supply, in their prey species, in the water column? Also how does one determine what is ‘safe’? Does this mean levels that would produce no physiological, anatomical or health effects in porpoises, or merely below levels that might be lethal? What are these levels? If left to the BAP process this
714 Olesiuk et al. (1996) 715 Simmonds and Dolman (1998), Shrimpton and Parsons (2000), Shrimpton (2001), Gordon and Northridge (2003). 716 Parsons et al. (2000). 717 For example, Gordon and Northridge (2003). 718 For toothed whales DTI and JNCC are the specified actors, but DETR (now DEFRA) and the devolved nature conservation agencies are noted as actioning bodies for baleen whales (CCW, EN and SNH) but DoE(NI) is excluded. 719 For dolphins DETR (DEFRA), DTI and DoE(NI) (but not any other devolved bodies or the JNCC) are the proscribed actors, but for toothed whales it’s DETR, JNCC and the Natural Environment Research Council (NERC), but not the DTI or devolved bodies. Whereas for baleen whales it’s JNCC and NERC again, but also EHS and the CCW (but not SNH, EN or DoE(NI). 720 Grouped plan for small dolphins and baleen whales and harbour porpoise action plan all have similar actions. The grouped plan for toothed whales, however, does not have an action related to the reduction of pollution. 721 Specific wording from the grouped plan for small dolphins.
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would never be discovered as conducting research on the effects of pollution on harbour porpoise health has not been noted as a conservation action722 and it should, therefore, be added.
Although PCBs and other organohalogens are specifically mentioned in the BAP actions noted above, the BAPs demonstrate a lack of consideration for other contaminants, such as heavy metals, tributyltin (TBT), organophosphates, polyaromatic hydrocarbons (PAHs) and dioxins, which may also have toxic effects on UK cetaceans.723 The synergistic effect of pollutants and anthropogenic stressors on cetaceans is an issue that has prompted concern at international levels.724 Therefore, research into non-organohalogen contaminants and the potential synergistic effects of pollutants and other stressors should be added as BAP actions for cetaceans across the board.
2.4.4.3. Local Biodiversity Action Plans
In addition to UK-wide plans for biodiversity conservation, local authorities have been charged with producing regional or ‘Local’ Biodiversity Action Plans (LBAPs). Typically, the actions outlined in national BAPs are used as a basis for the LBAPs, but not always. Many of the key actions highlighted for species action plans at a national level may not be relevant on a local basis, due to, for example, an absence of a particular threat in an area or lack of local authority power to regulate on specific issues; which might only be legislated or regulated at a national level. There may also be specific threats to species at a regional level that are unique, or particularly prevalent in that region, thus warranting special attention. To illustrate this with respect to cetaceans, the Argyll & Bute LBAP (see below), notes fish-farming as a local source of pollution, and military activity as a regional source of noise disturbance, that could threaten cetaceans. These issues do not receive specific attention in national BAPs.
There are some problems with the LBAP process, however. For example, for only 16% and 32% of marine species and marine habitats respectively, has any kind of contact been made between lead partners and LBAP authorities, compared with 32% for terrestrial species and 53% for terrestrial habitats.725
The UK Biodiversity Partnership’s ‘Highlights from the 2002 reporting round’, 726 reported that when lead partners were asked to assess the importance of LBAPs in achieving national priority targets, 83% said LBAPs were important to some extent. However, of the remaining lead partners (17%) that said that LBAPs weren’t important in achieving national priority targets, most of these represented the leads for marine species or species with a highly restricted range. This demonstrates a lack of support or understanding of marine LBAPs from those involved in the national levels of the BAP process. What is rather ironic is that cetacean LBAPs have, in some cases, made more progress in achieving their conservation aims than national BAPs (see Section 2.4.4.3.1). If the national leads were to communicate and co-ordinate with those involved in LBAPs, perhaps more could be done in achieving and accomplishing national BAP actions.
Turning to the LBAPs themselves, many regions are noted as having produced harbour porpoise LBAPs727 (Fig. 1) although there are many areas where harbour porpoises are abundant but plans are not noted to have been produced as yet (for example the Highland and Western Isles, Shetland Isles and Orkney, as well as the north eastern and western coasts of England). In contrast, few LBAPs have been drawn up or implemented for dolphins or toothed and baleen whales728 and generally these cetaceans have not been considered when drawing up LBAP species lists.
722 If the government were to truly be precautionary with respect to cetacean conservation, and considering that one of the main sources contaminant uptake in cetaceans would be ingesting contaminated prey (for example see Parsons (1998), it should ensure that organohalogen levels in likely cetacean prey species are at the same level (or lower) as food contamination guidelines set by the World Health Organisation for humans. 723 Shrimpton and Parsons (2000), Grillo et al. (2001). 724 For a discussion on concerns over synergistic effects of anthropogenic stressors and pollution see Payne (2004). 725 Data from 2002 Reporting round, www.ukbap.org.uk. 726 Highlights from the 2002 reporting round: www.ukbap.org.uk/Library/2002ReportPamphlet.pdf. 727 Regions that are noted by the government to have produced harbour porpoises LBAPs include: Argyll & Bute/ Swansea /Durham/Cornwall/ Pembrokeshire/SouthWest region (Avon/Devon/Somerset/Goucestershire/ Dorset/Wiltshire etc.)/Ceredigion/ Cheshire/ Denbighshire/ Essex/ Suffolk/Norfolk/NE Scotland/ Anglesey (http://www.ukbap.org.uk/UKPlans.aspx?ID=337). 728 The JNCC notes that the Cornwall, Teignbridge, Ceredigion and Durham have produced LBAPs for dolphins, and Cornwall, Swansea, Durham and Argyll & Bute have produced LBAPs for toothed and baleen whales.
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In general, there is a lack of consideration for cetaceans in the LBAP process by all/many of the regions with coastal waters, and this needs to be addressed. Arguably the JNCC729 could have provided guidance to local authorities with high populations of cetaceans in their waters and emphasised that cetaceans needed to be considered within the LBAP process.
Fig 1. LBAP coverage for harbour porpoises730 Fig. 2. LBAP coverage for small dolphins731
Fig. 3. LBAP coverage for toothed whales732 Fig. 4. LBAP coverage for baleen whales733
729 As lead partners for UK cetacean BAPs, and also as statutory advisors on cetacean matters in the UK. 730 Map from: http://www.ukbap.org.uk/UKPlans.aspx?ID=514. 731 Map from: http://www.ukbap.org.uk/UKPlans.aspx?ID=514. 732 Map from: http://www.ukbap.org.uk/UKPlans.aspx?ID=339. 733 Map from: http://www.ukbap.org.uk/UKPlans.aspx?ID=753.
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Although relatively few areas have whale or dolphin LBAPs, arguably those areas that have considered cetaceans in this process have done more to progress and complete biodiversity conservation actions than the Government. This is perhaps because many cetacean LBAPs are led and implemented by local NGOs who have a greater motivation, and perhaps also more dedicated time, man-power and resources to implement LBAP actions. Local NGOs may also have better links and personal interactions with local stakeholders and so co-operative actions can be agreed and completed more quickly.
Currently, implementation of LBAPs is the responsibility of Local Authorities who receive little additional funding for BAP implementation from central Government. To make up the shortfall, non-governmental funding bodies such as the Heritage Lottery Fund are being targeted to fund LBAP projects.734 Thus, large amounts of time and man-power are being spent by Local Authorities and Local Biodiversity Officers in writing proposals and seeking funding to support projects, rather than co-ordinating and implementing conservation actions. The situation is exacerbated by the fact that many funding agencies will only fund a proportion of a project’s total needs, requiring “matched funding” from other agencies. This means that instead of one simple grant request to one agency, multiple requests have to be made, often using different formats, and application criteria, multiplying substantially the time taken to secure funds. Should funding be secured, the multiple-funder system also means extra paperwork and bureaucracy, as each funder may have different requirements and protocols for accounting and reporting for the funded project. As many LBAP actions will require long-term, possibly indefinite, and substantial funding, this places a huge amount of strain on Local Authorities and local NGO partners.
LBAPs have the potential to do much for the conservation of cetaceans in the UK, and possibly more effectively than national level BAPs. However, they urgently need to receive more funding and support.
2.4.4.3.1. Case Study: Argyll & Bute LBAP
Cetacean LBAPs for Argyll and Bute (southwest Scotland) include species specific plans for bottlenose dolphins, minke whales, harbour porpoises and a grouped plan for all cetaceans.735 Local threats identified include pollutants, such as sewage, oil spills, fish farm pollutants, marine debris and organic pollutants (such as PCBs), most of which are not covered in national BAPs. Anthropogenic noise is also noted as a threat, particularly noise from Acoustic Harassment Devices (AHDs or ‘seal-scrammers’) and military activities (which are not explicitly detailed as issues in national plans). Bycatch is also noted as a threat, and creel (lobster pot) lines are specifically cited as a cause of entanglement, a type of fishing not specifically considered in national BAPs.
To illustrate the issues covered in these LBAPs, summarised below are the specific actions called for in the plans for minke whales and bottlenose dolphins:
Minke whales736
• Promote awareness about minke whales via leaflets, media coverage and eco-tourism.
• Identify further minke whale breeding and feeding sites.
• Conduct research into behaviour, biology and ecology of minke whales in Argyll.
• Use genetic finger printing to investigate population dynamics and to determine if minke
whale meat on sale in Norway and the Orient is from Scottish minke whales.
• Investigate disturbance from noise or seismic testing.
Bottlenose dolphins737
• Seek to improve and control water quality by better control of discharges.
• Investigate the scale and variety of shipping, agricultural and aquaculture pollutants.
• Identify further bottlenose dolphin breeding and feeding sites.
• Investigate the feasibility of establishing an SAC for protection.
734 Hiscock et al. (1998). 735 Argyll and Bute Local Biodiversity Partnership (2001a, 2001b, 2001c, 2001d). 736 Argyll and Bute Local Biodiversity Partnership (2001d). 737 Argyll and Bute Local Biodiversity Partnership (2001b).
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• Investigate the genetic profile of Argyll bottlenose dolphins and compare with other UK
populations to determine population dynamics and vulnerability.
• Initiate a dedicated photo-identification study to photograph individual dolphins, and use with
environmental and positional data to provide accurate habitat/movement information.
• Conduct research into the possible impacts of military and fish farm activities on bottlenose
dolphin populations and habitats.
In contrast to the UK BAPs, the majority of the above actions have actually been progressed, and many are even nearing completion. Those actions which have seen little or no progress are actions that are the remit of government agencies, such as improving water quality and discharges, which would fall to the Scottish Environmental Protection Agency (SEPA). Most of the progressed actions have actually been conducted and co-ordinated by non-governmental organisations,738 with funding largely from non-statutory sources.739 No funding has been provided by the primary agencies dealing with national cetacean BAPs (such as DEFRA and JNCC), and indeed the JNCC biodiversity website does not even mention the above NGOs as partners or contributing organisations.
2.4.4.4. BAP summary
Comparing the lack of progress with the national BAPs and the confusion over responsible parties and general lack of co-ordination with respect to cetacean BAPs, and the greater success demonstrated by NGO-led LBAPs, there is the argument that perhaps, with respect to cetaceans, JNCC should step aside as the lead on the national cetacean BAPs, and allow NGOs a more active role. It would also be far more cost-effective as NGOs often have dedicated full-time specialist personnel, and entrusting such groups with a role of responsibility is more likely to ensure active participation. The UK marine turtle BAPs are being led by NGOs740 and these plans have been successful, with a great deal of progress accomplished. If left with the current system and leadership it is unlikely that any national cetacean BAPs will achieve their ultimate objectives.
Some actions, such as those of a high level policy or regulatory context, will still require action from government departments and statutory agencies. With NGOs taking the role as lead partners and driving the process forward, this may create the pressure needed to elicit the necessary governmental action that has so far been lacking.
This suggestion does not, however, remove the Government from obligations to fund BAPs and LBAPs and, as mentioned above, the government should be working to enshrine a large-scale and long-term commitment to funding BAPs and LBAPs into national legislation.
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Breakout Box 5 – Cetaceans and the ecosystem approach
The Ecosystem Approach (or Ecosystem-based Management) is an approach to managing human activities that has gained a lot of ground in recent years. The UK formally endorsed an Ecosystem Approach at the 5th North Sea Conference (2002) and set out what that means for the UK in Safeguarding Our Seas (2002). Traditionally, management of activities has been sectoral, divided by human boundaries rather than biological ones and with little thought to the cumulative effects of several activities functioning in the same environment. Nature conservation efforts have largely focussed on just protecting rare or declining species, and only really from direct, intentional harm. An ecosystem approach requires looking at management of activities and nature conservation at a larger, ecosystem scale. Instead of managing human activities sectorally, it requires us to look at them together to ensure that cumulatively, they are sustainable and the functioning of the ecosystem and its component species, habitats and processes are not compromised. For nature conservation the reality is that trying to protect a rare species (for example) on its own, without also protecting the ecosystem it is a part of, will not succeed.
738 Primarily the Hebridean whale and Dolphin Trust, the NADAIR Trust and the Seawatch Foundation. 739 Most funding (50-75% of most projects) comes from the Heritage Lottery Fund, with some funding also from Argyll and the Islands Enterprise and Scottish Natural Heritage, as well grants from other NGOs (e.g. WWF-Scotland) and even self-funding by the NGOs themselves (see www.hwdt.org). 740 Marine turtle grouped plan: http://www.ukbap.org.uk/UKPlans.aspx?ID=335.
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It requires us to control better the impacts on the environment from lawful activities, and learn to take a truly precautionary approach, areas in which we have previously not been very successful. Tools such as SEA will be key to this, and good data and monitoring systems are essential to supporting this approach. Adaptive management processes need to be in place so when ongoing monitoring signals that a change is needed, we can act quickly.
However, there are certain things that taking an Ecosystem Approach does not mean: It does not mean ceasing to work on individual species issues.Nor does it mean failing to protect rare or declining species. These will continue to be crucial elements but should be augmented with a system of integrated management of natural resources741 and ecosystem protection. It also does not mean managing the ecosystem itself or direct manipulation of any of its component parts e.g. culling or predator reduction/control. The emphasis of the Ecosystem Approach is on managing human activities.
Cetaceans can help us take an ecosystem approach in several ways:
(a) the use of indicators will be important in establishing an ecosystem approach as they will allow us to measure progress and evaluate the success of policies. The health of cetacean populations is a useful indicator as they are one of the most visible members of the ecosystem.742 They are large, long-lived predators and so bioaccumulate contaminants;743 they generally live on a wide variety of prey and, being very mobile, they will come into contact with many of the environmental impacts present;744
(b) cetaceans can also be useful indicators of underlying prey distributions and ecosystem processes so determining cetacean distribution can help identify biological ‘hotspots’;745
(c) cetaceans typically need large MPAs if they are to be successful so this will result in protection for many other species and habitats; and,
(d) cetaceans are also good figureheads for conservation programmes due to their popularity so can be used to win support for measures necessary for ecosystem conservation.
741 Laffoley et al. (2003) 742 Hoyt (2004). 743 See Section 1.3.1. 744 Wells et al. (2004) 745 Hooker and Gerber (2004)
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3. THE RMNC AND CURRENT THINKING The past 5 years have seen a major period of review of the systems and legislative structures in place in the UK for the management and protection of the marine environment. The Review of Marine Nature Conservation (RMNC)746 was set up in 1999 in response to recognition that the creation of a network of Marine Nature Reserves (see section 2.4.1.2), as established under the Wildlife and Countryside Act (1981), had not been successful and that work on the Habitats and Birds Directives had focussed attention more on the marine environment and the gaps in the conservation framework. It was tasked with examining how effectively current systems were protecting the marine environment and ‘to develop practical and proportionate proposals for its improvement.’747 A pilot study (ISP – Irish Sea Pilot) was set up in the Irish Sea to test the recommendations coming through from the RMNC.
The overall conclusion from the process was that the current system for marine nature conservation is ”not fit for purpose” and will not allow the government to meet its international obligations748 or attain its goal of “clean, healthy, safe, productive and biologically diverse oceans and seas.” 749 A new system is required that protects marine biodiversity and the ecological processes that sustain it, whilst managing and integrating human activities to ensure they do not compromise this goal – ultimately, to put in place an ecosystem approach (see Breakout Box – Cetaceans and the Ecosystem Approach).
3.1. POLICY AND SPATIAL FRAMEWORK
An overarching policy framework was proposed by the RMNC, with a structure consisting of high level strategic goals and conservation objectives at various scales aimed at describing the desired state of marine ecosystems;750 with targets and indicators set to assess progress toward achieving these objectives.751 Through the Irish Sea Pilot, the RMNC tested and agreed upon ‘a nested framework’ through which to apply the policy framework “aimed at addressing marine nature conservation needs
at a variety of spatial scales”.752 These scales are:
• the ‘Wider Sea’, where action is required at a global, European and national level;753
• ‘Regional Seas’ then divides the ‘Wider Sea’ into medium-scale ecosystems and provides “a useful scale at which to implement the Ecosystem Approach”754 and Marine Spatial Planning (MSP);755
• the ‘Marine Landscapes’ concept then divides the ‘Regional Sea’ into main component landscapes using available geophysical and hydrographical information;756
• important marine areas (i.e. MPAs);757 and finally
• priority marine features which are threatened, rare or otherwise exceptional species and habitats.758
The Irish Sea Pilot and RMNC concluded that this framework should be adopted for marine nature conservation.
The policy and spatial framework as proposed would seem to provide a clear and sensible structure from which to develop conservation action and management measures. However, there is some
746 Defra (2004a) 747 Executive Summary in Defra (2004a) 748 Ibid. 749 (Defra, 2002) 750 It is envisaged that high level conservation objectives would be further refined by operational objectives. These operational objectives would be integrated with the EcoQos being developed under OSPAR (See section 2.2.1) 751 RMNC Final Report – Executive Summary, para. 12 (Defra, 2004a) 752 RMNC Final Report – Executive Summary, para 20 (Defra, 2004a) 753 Ibid., para 15 754 Ibid., para 16 755 ISP Executive Summary (JNCC, 2004b) 756 RMNC Final Report para 5.20 (Defra, 2004a) 757 RMNC Final Report – Executive Summary para 18 (Defra, 2004a) 758 Ibid., para 19.
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concern for how the marine landscapes level might work in practice for wide ranging species such as cetaceans. The theory is that geophysical and hydrographical information can be used to predict biological characteristics as biological data is often absent, particularly in the offshore zone, and is expensive to obtain. Whilst this approach may work well for benthic species, it would be much harder to apply with any certainty for cetaceans which remain within particular ecological units far less predictably. There is an ongoing and significant need for cetacean data and the development of the marine landscape approach will not remove this need, even though it may be helpful and appropriate for other species.
3.2. DATA AND MONITORING
The marine environment has long suffered from the lack of a co-ordinated system of marine data collation. Good data are key to monitoring the state of marine biodiversity, assessing the impact of human activities and determining appropriate conservation action. The ISP collated as much data as they could on the biological, physical and human use characteristics of the Irish Sea. They concluded that for most offshore localities data was so sparse that it would constrain good decision-making. The government’s most recent assessment of the state of marine biodiversity, “Charting Progress”, highlighted how this is certainly the case for cetaceans:
“[aside from the Cardigan Bay and Moray Firth bottlenose dolphin populations] there is not
much reliable information for other species or populations on trends in population size”;759
“populations of marine mammals are poorly understood”;760
“since most cetacean population levels are unknown the overall effects [of commercial
fishing] on the sustainability of the system is unclear”.761
The ISP and RMNC both recognised gaps in the current set up and recommended that a co-ordinated UK-wide marine information network should be established.762 The RMNC further recommended that indicators and procedures to monitor the state of marine biodiversity and the impacts of human activities should be further developed and agreed.763
WDCS agrees that these steps are essential and would urge that particular effort is made to fill the significant data gaps that exist. At present in the UK there seems to be an over reliance by the authorities on the ‘Atlas of cetacean distribution in north-west European waters’ to determine the presence and absence of cetaceans in decisions on the designation of protected areas and the management of activities. Whilst this document has its uses, much of the data it is based on is broad scale and patchy and therefore should not be relied on as a comprehensive assessment of cetacean distribution in UK waters. This reliance tends to distract from the need to conduct futher, dedicated work.
Any monitoring programme will need to assess long term trends and also evaluate the effectiveness of conservation and mitigation measures employed. There is a particular need for a system to monitor the incidental capture and killing of cetaceans given that this is a requirement under the Habitats Directive.764
3.3. MARINE SPATIAL PLANNING
The regulation of marine activities occurs sectorally in the UK and there is no framework in place that allows an integrated approach to management or that enables “consistent and co-ordinated decision
making across the sectors”.765 This lack of an overall plan is blamed for causing conflict between the different sectors, and nature conservation suffers as there is neither a system that provides an overview
759 para 3.127 (Defra, 2005) 760 Ibid., summary assessment for UK Seas Table 6.1 761 Ibid., 762 RMNC Executive Summary Key recommendations 12-13 (2004); ISP Executive Summary, para 3 (Defra, 2004a) 763 RMNC Executive Summary key recommendation 11 (Defra, 2004a) 764 Habitats Directive art. 12. 765 RMNC Executive summary para 26 (Defra, 2004a)
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of all the activities taking place in a sea area, nor a process through which to consider the cumulative and combined effects.766
Marine Spatial Planning (MSP) is described as:
“strategic forward looking planning for regulating, managing and protecting the marine
environment, including through allocation of space, that addresses the multiple, cumulative
and potentially conflicting uses of the sea”.767
It is seen as a way of improving decision-making and delivering an Ecosystem Approach to managing activities. European ministers agreed at the North Sea Conference in 2002 that strengthening co-operation in the MSP process of the North Sea was required and, in the same year, Defra committed to exploring the role of spatial planning for the marine environment.768 This was done through the ISP and the RMNC concluded that a trial should be undertaken to “determine the suitability of implementing
such an approach across all UK waters”.769 This trial is currently underway.
A system of spatial planning should be adopted for UK waters to enable a strategic overview of developments in the coastal and marine environment. In our view, the following elements are the most important:
(a) all sectors must be included;
(b) the MSP must have statutory backing, in the same way that land-use planning does;
(c) resources must be put towards filling data gaps about the status of the UK’s cetaceans and this should be fed into the planning process. Whilst incomplete data should not prevent an initial plan from being developed, adaptive management practices should be put into place to allow the plan to change as our knowledge improves;
(d) the body/authority given the job of developing and implementing the plans must have sufficient power to bring all the relevant players together. This will probably need to be a new marine agency;
(e) if the plan is truly to be able to implement an Ecosystem Approach, England, Wales, Scotland and Northern Ireland must work closely together; and
(f) public participation should be built into the process.
3.4. ASSESSMENT OF HUMAN ACTIVITIES
For any management process to be successful at balancing economic and environmental needs we must be able to assess the impacts of our activities properly and take the appropriate responses, i.e.
(a) a good monitoring system will be essential for providing the information to make the right decisions;
(b) good feedback systems need to be developed so that quick and effective action can be taken when problems arise;
(c) SEA Directive is a useful tool in this process (see Section 2.3.3). There has been some doubt whether SEA would apply to fisheries activities as they may not be classified as a ‘plan
or programme’. Given that fishing has serious impacts on marine wildlife, the SEA Directive should indeed be applied to this activity; and
(d) to ensure that the best quality SEAs are undertaken, consideration should be given to tasking their undertaking (or at least screening and quality control) to a body other than the plan owner, as is currently the case. This would help to address the significant problems of impartiality and conflicts of interest in the current system of evaluation.
766 Wildlife and Countryside Link (2005a) 767 Defra (2004a,b). 768 Defra (2002) 769 RMNC recommendation 7 (Defra, 2004a)
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3.5. ENFORCEMENT
The sea is a logistically difficult place to enforce legislation. Specialist equipment and knowledge is required, as is time out on the water. The RMNC recognised that the current system is not working well and that “little enforcement of nature conservation legislation is currently taking place away from
the coast”.770
Consideration should be given to which bodies operate where, and what resources and functions they have and the appropriate powers should be given to the appropriate bodies to ensure complete coverage of the marine environment. As there will be several bodies enforcing legislation in the marine environment co-ordination is very important and there should be requirements in law for them to work together and develop best practice. Furthermore, a national system to record wildlife crime incidents and numbers of successful and unsuccessful prosecutions would aid enforcement by helping to identify crime hotspots and enable resources to be directed more effectively (see Section 2.4.1. and Breakout Box – Boat disturbance).
3.6 MARINE PROTECTED AREAS (MPAs)
The RMNC process began following recognition that the UK was lacking legislation to protect marine sites for nationally important wildlife. The process concluded that marine areas are a crucial element of the nature conservation framework771 and “an ecologically-coherent and representative network of
marine protected areas should be identified and established and appropriate and proportionate
measures applied to ensure their conservation needs are met”.772
If the UK Government is to deliver conservation and recovery of the UK’s marine biodiversity, as well as to reach the many international commitments made,773 new legislation is required to designate, manage and protect an ecologically coherent network of Nationally Important Marine Sites. This network should include the following elements:
(a) a proportion of this network should be ‘Highly Protected Marine Reserves’ where little, if any, human activity is allowed. These areas will underpin biodiversity conservation and recovery, act as scientific reference areas and as an insurance policy against uncertainty;
(b) the rest of the network can be a mixture of multiple-use-sites, ‘no-take’ zones and other types of MPA;
(c) the network must be sufficiently large, contain enough replication of all features at a number of sites and have sufficient connectivity to ensure species and habitats are sustained in perpetuity;
(d) the right powers must be available to the statutory nature conservation agencies and other competent authorities to ensure sites can be managed and protected effectively and deterioration from human activities is prevented;
(e) the network should extend throughout waters where the UK Government and devolved authorities have jurisdiction and responsibility;
(f) if there are gaps in the network for species and habitats where there is insufficient data available to determine conclusively the most important areas for designation, these gaps should either be filled with survey work or the precautionary principle should be employed and sites designated on the best available information; and
(g) comprehensive survey and monitoring work must be completed to feed into the site management programme and details of these requirements should be included in the legislation.
770 RMNC Executive Summary, para. 32 (Defra, 2004a) 771 Ibid., Key rec. 8 (2004) 772 ISP Executive summary, para. 8 (JNCC, 2004b) 773 e.g. OSPAR – establish an ecologically coherent network of well managed MPAs for the OSPAR maritime area by 2010; WSSD – to establish representative networks of MPAs by 2012.
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Improvements to the existing network of sites of marine Special Areas of Conservation (SACs) are also needed (see Section 2.3.1.2):
(a) SACs should be established for harbour porpoises;
(b) further research is required in offshore waters in order to determine potential sites for SACs for harbour porpoises and bottlenose dolphins in these waters;
(c) sites should be larger in size to provide a ‘buffer’ for changes;
(d) decision-making on what activities are allowed in or near sites needs to be more precautionary; and
(e) as the Habitats Directive is now being applied to the offshore zone, the list of cetacean species for which sites can be designated should be extended beyond the more coastal species (bottlenose dolphins and harbour porpoises), i.e. more cetacean species should be added to Annex II of the Habitats Directive.
3.7. BIODIVERSITY MEASURES
The current system for species and habitat protection in the UK, provided mainly by the Wildlife and Countryside Act (see Section 2.4.1) and the Conservation Regulations (see Section 2.4.2), does not offer adequate protection for marine wildlife. It is often based on terrestrial principles which make it hard to apply in the marine environment and can rely on a level of knowledge for its implementation that is not possessed for marine wildlife. Added to this there are some significant gaps and loopholes (disscussed in Section 2.4). The RMNC recognised this and suggested that a complete overhaul of the current system should be considered with bespoke legislation to allow for the development of a coherent ‘Ecosystem Approach’.774
A fundamental flaw to the protective regime which was raised by the RMNC775 is that national species protection legislation only applies to 12nm. National species protection legislation should apply throughout waters where the UK and devolved authorities have jurisdiction and responsibility.
The Irish Sea Pilot also highlighted that “national legislation should be introduced to control and
reduce the killing, injury and disturbance of cetaceans and certain other vulnerable species as a result
of fishing and other activities.”776
We would advocate the introduction of a system whereby lawful activities, such as fishing, that are resulting in the killing or disturbance of cetaceans and other protected or priority species are subject to:
(a) assessment;
(b) development of best practice guidance with the appropriate SNCO, detailing mitigation and technical measures to be employed as a requirement of consent for the operation. These guidelines should have statutory backing and enforcement;
(c) ongoing monitoring of the impacts of these operations and the effectiveness of any guidelines and mitigation measures employed; and
(d) feedback from the monitoring programme which will determine if further measures are needed as determined by the SNCO. If necessary this should include cessation of the activity.
Several sections (see Section 1.3.2. and Breakout Box – Noise pollution and the precautionary principle) in this report have highlighted the difficult and growing problem of noise pollution as an issue that has the capacity to disturb, injure and even kill. As such, instigation of the measures above is urgently needed. At the very least, noise producing activities should be made to follow guidelines as required for the oil and gas industry, although these guidelines are seriously flawed (see Breakout Box – Seismic guidelines) and in their current state should in no way be considered a model or standard for other noise producing activities. Such guidelines, moreover, should have a firm statutory basis and must be properly monitored and enforced. Furthermore, regulatory standards for the construction,
774 RMNC (2004), para. 7.31 and recommendation 9.1. 775 Ibid., para. 7.30. 776 ISP (2004), Executive Summary, para. 11.
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design and use of technology in the marine environment should consider noise pollution levels along with other environmental concerns.
The issue of military sonar (see Section 1.3.2.1.8, Section 1.3.2.2 and Breakout Box – Noise pollution and the precautionary principle) is of such concern that there should be a postponement of development of new military sonar systems until more is known. Critical cetacean habitat should be made off limits to naval vessels using mid- and low-frequency sonar systems, at least until the effects can be properly assessed, and it can be proven, or at least research shows that it is highly likely that, such sonar will not impact cetaceans.
Above all, the application of precautionary management practices is imperative.
A site-based measure that should be considered, with the purpose of protecting wildlife, is the introduction of ‘no-go’ zones or speed restrictions in areas where there is a particular problem. Bylaws may be one way of enacting this (see Breakout Box – Boat disturbance). The benefits of this approach are that it could be more flexible e.g. protecting the area for only part of the year if that is all that is required. Finally, the introduction of statutory regulations for marine wildlife-watching activities would be a positive measure to prevent disturbance and aid enforcers with the prosecutions of disturbance offences (see Breakout box – Boat disturbance for full discussion).
The Irish Sea Pilot tested a set of criteria designed to identify nationally important (rare, proportionally important, declining, or under threat of decline) marine features. They recommended that work should be done to identify which of the features would benefit from recovery programmes and that these should be established, incorporating the BAP process within it.777 Providing these received the appropriate statutory basis and funding, this could be a positive step for marine biodiversity. The following statutory elements should be included:
(a) a general duty on all public bodies and office holders to further the conservation of marine biodiversity;
(b) the features list should be given a legal status;
(c) a legal duty to monitor the status of features;
(d) measures which would require public bodies to work towards specific (i.e. not nebulous, as is often the case with current conservation objectives), agreed targets for features;778 and
(e) emergency powers to regulate activities likely to damage priority features.
4. THE MARINE BILL
For several years, the NGO community779 has been campaigning strenuously for comprehensive improvements to marine legislation. As mentioned previously, the current key piece of national legislation is the Wildlife and Countryside Act 1981 (WCA), as amended by the Countryside and Rights of Way Act 2000 (CRoW). The WCA has a number of shortcomings in relation to the marine environment. In its final report, the RMNC Working Group recognised the need for an overhaul of the current system and suggested that bespoke or new legislation might be preferable to attempting to patch up existing statutory measures.
In December 2004, the Department for Food, Agriculture and Rural Affairs (DEFRA) published its five year strategy,780 in which the introduction of a Marine Bill was laid out:
777 ISP Executive summary, para. 7 (JNCC, 2004b); RMNC recommendation 9.2 (Defra, 2004a) 778 RMNC recommendation 9.3 (2004) 779 Including WDCS (the Whale and Dolphin Conservation Society) via the Wildlife and Countryside Link: a coalition of leading environmental NGOs including the Marine Conservation Society, the Worldwide Fund for Nature, the Royal Society for the Protection of Birds, and The Wildlife Trusts in the UK. 780 Department for the Environment, Food and Rural Affairs. (2004).
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“We will improve the current framework for managing and protecting all our
marine resources through a Marine Bill, which we hope to introduce sometime
in the next Parliament. This will provide the framework within which those who
regulate marine activities can ensure the sustainable use and protection of our
marine resources and will help us to apply the ecosystem approach to the
management of our marine resources. The framework will allow the different
uses of the sea – including wildlife protection, offshore wind and other industries
– to develop harmoniously.”781
To aid integrated marine management, DEFRA noted that it planned to set up a “new marine agency”782 by the end of 2005. It is proposed that this agency will take over some of the roles of the previous statutory bodies whose remits deal with aspects of the marine environment.
The commitment to this followed in the Labour Party manifesto in April 2005:-
“Through a Marine Act, we will introduce a new framework for the seas, based on marine
spatial planning, that balances conservation, energy and resource needs. To obtain the best
value from different uses of our valuable marine resources, we must maintain and protect the
ecosystems on which they depend.”783
On 8 December 2005 the four administrations within the UK published “Safeguarding Sea Life”, the joint UK response to the Review of Marine Nature Conservation. This response set out shared policies on marine nature conservationand described the intentions of the adminstrations in relation to the sixteen key recommendations in the review. It is anticipated that a number of these policies will benefit from legislative underpinning in the Marine Bill.
The two other main political parties also support such legislation and a draft marine bill was expected in late 2006. However, the omission of the Marine Bill from the 2006 Queen’s speech was a disappointing setback. The Marine Bill White Paper is due to be released in March 2007 and a consultation period will follow. This is without exaggeration a once in a lifetime opportunity to make the improvements we need to the way we protect and manage the marine environment. Above all, Government must not lose sight that our marine biodiversity has suffered serious losses over the years and depends on sound decisions being made for its conservation. For too long now we have forged ahead with the development and exploitation of our marine environment whilst making painfully slow progress with measures to protect, conserve and now, allow recovery of, marine biodiversity.
781 Ibid. p. 68-69. 782 Ibid. p. 69. 783 Labour Party. (2005). p. 101.
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6. ACKNOWLEDGEMENTS
We would like to thank Sarah Dolman, Vanessa Williams, Steve Isaac, Jo Wharam, Mick Green and Richard Caddell for their comments on an earlier drafts and various sections of this report and Wildlife and Countryside Link (and in particular its marine working group) for many detailed discussions and papers on legislative issues and the marine bill. Thanks are also due to Gina Davies, who proof read an earlier text and provided comments that greatly improved it. The production and publication of this review was funded by WDCS, the Whale and Dolphin Conservation Society.
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