UK dispute over European Marine Sites
The first rounds have been fired in what may be a lengthy dispute between two conservation bodies and the UK Marine Management Organisation relating to the relationship between fishing and obligations under EU Habitats legislation, writes Andrew Oliver, partner and specialist in sea fisheries and marine environmental law, at solicitors Andrew Jackson.
In a letter dated 1 August 2011 the Marine Conservation Society and Client Earth wrote to the Marine Management Organisation putting forward their view that fishing activities had either caused or were likely to continue to cause damage to a number of European Marine Sites. In particular it was their view that fishing caused damage to features such as reefs, sand flats, shallow inlets and bays as well as seabed habitats which were the reason for the designation (or proposed designation) as a European Marine Site.
In particular they cited bottom towed fishing gear, scallop dredging, beam trawls and otter trawls as well as the use of unregulated static fishing gear as causing such harm. Their answer to this issue was that the MMO could and should address these issues by amending fishing licences to prohibit fishing activities in European Marine Sites unless and until licence holders could establish that the particular activity they were conducting did not cause disturbance deterioration or adverse effects to and European Marine Sites. Licence holders would have to do this by way of an appropriate assessment under the Habitats Directive.
In terms of the law the conservationists cite the well known Waddenzee Case (S – 127/02) stating that a fishing licence mounted to a "plan or project" within the meaning of article 6(3) of the Habitats Directive and thus required an appropriate assessment. Furthermore they allege that the MMO was duty bound under Article 6(2) of the Directive to take appropriate steps to avoid deterioration and disturbance of the habitats and species in a European Marine Site and should not allow those activities to take place until an appropriate establishment had made certain that it would not adversely affect the integrity of the site. This would be indicated by there being no reasonable scientific doubt remaining as to the absence of such adverse effects.
The MMO replied on 12 October acknowledging that it did have clear obligations under the Conservation of Habitats and Species Regulations 2010 in order to secure compliance with the European Habitats Directive. The MMO in particular pointed out that its response in respect of protection of the marine environment had to be both appropriate and proportionate bearing in mind the need to balance the protection of the environment with the protection of the right of fishermen to fish and earn a living. The MMO pointed out that they have worked closely with the various governmental conservation bodies in the UK and that the assertion by the conservation bodies that there should be a blanket prohibition on all fishing activities would be disproportionate and would have a significant impact on the livelihoods of fishing licence holders by preventing them from undertaking legitimate fishing operations. The evidence from Natural England (the MMO's adviser on environmental matters) found that of the commercial fisheries related activities in European Marine Sites on 2% would pose a high risk to such sites and therefore a blanket ban would be disproportionate.
Clearly this is a matter which will continue and these first exchanges have done little more than set out each party's position. The fact of the matter is that the conservation and environmental lobby is becoming increasingly confident in its approach and it would be surprising if this development in the UK is not reflected elsewhere in European waters. It is a dispute that the marine and sea fishery lawyers at Andrew Jackson will continue to monitor with interest.
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