Opinion: The Marine and Coastal Access Act – Vision to Vapour in five years?

January 22, 2015


This crucial piece of legislation received cross-party support. From environmentalists to fishers, ports and shippers to kayakers, anglers to sandcastle makers, across England’s green and pleasant land it was welcomed. Finally, our island’s blue environment was going to receive the management and protection so many had called for, for so long.

The Marine and Coastal Access Act, 2009, set up the Marine Management Organisation to licence activities in the sea.  It established Inshore Fisheries and Conservation Authorities, formerly sea fisheries committees, to manage activities within six miles of the shore and set the rules for marine planning. It enabled the creation of a network of Marine Conservation Zones in England and established a public right of access to the coast.

So what has gone so horribly wrong?

In 2014 green NGOs with cross-party support of MPs and a petition of more than 300,000 launched a fresh campaign for the creation of Marine Conservation Zones (MCZs). In almost five years, the ‘greenest government ever’ had managed to designate a mere 27 MCZs. There is irony, of course, that former DEFRA Minister Richard Benyon’s name appears at the top of the list of MPs; he was the man with the job of making all this happen during the first three years of this Government. Since the MCZs were designated in December 2013, none have received any management or protection measures. What we have so far are ‘paper parks’.

The Marine and Coastal Access Act 2009 (MCAA) gave the Marine Management Organisation (MMO) the power to create bylaws to protect marine wildlife. Yet European sites, some proposed as long ago as 2001, only received bylaws to manage fisheries in 2014. Other activities that the Government’s statutory conservation bodies Natural England and the Joint Nature Conservation Committee identified as ‘red’ risks on their risk traffic light system are yet to be dealt with by regulation – currently only voluntary agreements are in place. This is hardly the ecologically coherent network we were promised.

We might not have enough Marine Protected Areas yet, but what we have, we are protecting, right? Wrong.

During the Environmental Audit Committee’s 2014 inquiry into Marine Protected Areas, the MMO’s CEO James Cross said MMO staff numbers rose from 200 at investiture to over 300 in 2014, with budget cuts absorbed by better management and procurement practices. “More with less,” he agreed with MP Caroline Spelman. The Committee was told the MMO negotiated a better deal with the Ministry of Defence to provide the same level of fisheries protection for less; however, a Parliamentary question revealed there has actually been a dramatic decline in enforcement. In 2010 there were 1,415 inspections at sea but just 633 by 2013. This is worrying. The Fisheries Protection Squadron carries out inspections beyond six nautical miles. As well as UK vessels they should be inspecting vessels from member states fishing near to our coast to include significant activity from France, Belgium, and Holland. These vessels fish almost unfettered in UK waters, much to the chagrin of UK fishers. The massive reduction in inspections matters; although many vessels now have Vessel Monitoring on board, it only shows where they are, not what they are doing, and is no substitute for boarding at sea where catches and nets can be checked.

The situation inshore is similar. With no significant increases in budgets, Inshore Fisheries Conservation Authorities (IFCAs) struggle to oversee the additional areas they must protect as a result of bylaws for Special Areas of Conservation (SAC). Despite knowing the first IFCA appointments made in 2010 would expire in 2014, individuals had their terms extended because the MMO, despite four years’ notice, had not prepared the proper process for reselection/selection. Positions were recently advertised with just two weeks to apply – yet many fishermen will be at sea for most or all of this rushed process. Static fishermen have been frustrated as visiting trawlers have towed away pots from closed areas. Fishers have reported trawlers in the closed areas, only to be told by the IFCA and MMO no one is available to inspect. Fishers are left with lost pots and the marine environment with potential damage. The majority of trawlermen are respectful of the rules. However, for the few bad apples it’s business as usual with little fear of inspection, scrutiny or prosecution.

Collaboration is so poor across the DEFRA network that recently off Devon a 24m beamer conducted a science survey under contract from CEFAS, DEFRA’s science gathering agency. Sadly, neither CEFAS nor the MMO, which issued derogation of catch, had consulted the local IFCA and seemed oblivious to bylaws designed to protect a Special Area of Conservation (SAC) site via closed areas to bottom activities. The MMO and CEFAS also seemed to ignore the requirement for a permit to use towed gear in the area. The IFCA is left with furious static fishermen who suffered lost or damaged gear (which the boat denies) through this state-sanctioned poaching.

The good news is the licensing function of the MCAA ensures large projects receive appropriate scrutiny, leading to the elimination or mitigation of risks through license conditions, right? Wrong.

In October campaigners in Whitsand Bay, Cornwall’s forgotten corner, won a judicial review of the license issued to Westminster Boskallis, a Dutch dredging company that boasts a €3bn turnover and posted €366 million profits in 2013. Campaigners had accused the MMO, which granted the licence, of failing to follow the correct processes.

On average, a Parliamentary answer to MP John Robertson shows, the MMO spends nine hours on each ‘routine navigational dredging’ licensing application. For Whitsand Bay, where it was proposed to dredge and dump 367,000 tons of contaminated silt over three years, the process would have involved considering the risks to the SAC the dredging was taking place in, the adjoining Special Protection Area, newly designated MCZ and surrounding Site of Special Scientific Interest, another MCZ just 800m away and the impact of high levels of arsenic, mercury, and lead in the dredge spoil. It would have had to consider the Habitats Directive, the Water Framework Directive, the Waste Framework Directive, the Environmental Impact Regulation, OSPAR and the MCAA, along with over 80 consultation responses from the public, NGOs, statutory conservation bodies, the Environment Agency, the Crown Estate and the list goes on. In just nine hours? Nor does it take much digging to find similar situations where it is difficult to see the licensing process as fit for purpose.

But at least marine licenses are effectively monitored and enforced, right? Wrong.

In the lamentable case of Whitsand Bay, campaigners had to report license breaches themselves because the MMO had not been monitoring effectively. The company admitted two offences, including dumping silt on incoming tides and therefore towards the MCZ, but was given a warning letter instead of being taken to court where it could have faced fines of up to £50,000 and two years’ imprisonment. When dredging resumed in September campaigners reported further suspected breaches, this time including dumping in the wrong place. What action the MMO plans remains to be seen, but what is clear is independent scrutiny of activities it licenses seems to be left to vigilant stakeholders to identify and report. There is a worrying lack of independent and effective monitoring by the regulator.

Marine planning is an essential part of the MCAA and should be a road map to sustainable development of our waters. It is two years behind schedule and what has been produced has been widely criticised – from green NGOs to marine industries. The plans lack the detail, or adequate consideration of costs and benefits, to be properly considered as ‘plans’. This should not be a surprise: they have been developed ad hoc, without clear direction to map them out. Work on the framework they should follow has been developed in parallel to the actual plans, which for many are meaningless. It is regrettable, for example, that fisheries data the MMO collects has not been used. Work on displacement of fishing due to MPAs or other activities has not been fully considered. Unintended consequences of displacement include increasing fishing pressure in other areas which cannot accept more without damage to stock and habitat. Some small inshore vessels, often the iconic heart and soul of coastal towns, cannot simply ‘relocate’ because opportunities close to their historic fishing grounds may not exist. More importantly, health and safety risks to small, less seaworthy vessels go ignored. It is obvious that going further afield puts lives at greater risk. It is possible this displacement would occur anyway but it should be in the full knowledge of the risks to fishermen’s lives, livelihoods and communities.

Fisheries management by the MMO and data it uses came under increasing pressure in 2014 for independent review. MPs, NGOs and fisherman all demanded action, and even a former MMO board member who was also formerly Director of Marine and Fisheries at DEFRA, called for a rapid and robust review. Many fishers who had a bleak start to 2014 because of bad weather faced a bleaker Christmas with closures for many species and small catches. Some businesses shut. Scallopers and crabbers fell foul of inaccurate statistics. Despite the MMO forcefully denying there was a problem with UK statistics, the truth is that due to data lags the UK had not been reporting accurate statistics to the European Commission (EC) for several years. As a result of inaccurate statistics being filed, the UK hid breaches of limits. EC regulators did not take well to this and the UK was fined the equivalent of £4.5 million, with scallopers losing fishing opportunities. Crab effort also received severe penalties.

These data lags caused much pain to fishermen with early year closures for many important species, including ray, skate and plaice – bread and butter to the small inshore fleet coming up to Christmas. Without warning, fisheries closed one by one from late September because the MMO had failed to manage catches sufficiently well to keep them open. The regulator claims there are no data lags; if true, this would mean the MMO saw, in real time, huge uptakes in June and July and did nothing to manage them. Many doubt there are no longer data lags and believe the reality is by the time data lags caught up it was too late to avoid fisheries closures or else overshoot the UK’s allocation. But as 2015 starts, MMO announcements suggest the regulator has still failed to keep catches within UK limits. More penalties can be expected, further reducing opportunities for fishers. A quick look at the Marine Traffic site reveals our continental cousins were fishing in our waters at full speed in the lucrative run up to Christmas – they seem to be able to manage their pots under the same restrictions.

Despite expectations of the MCAA, it appears to have achieved little more than to unite such unlikely bed fellows as fishers, developers and green NGOs in their criticism of the MMO and of the Government’s failure to ensure their arm’s length body brings the Act to life in a meaningful way. There were always going to be problems with a new organisation but excuses cannot be continue to be made for its ‘newness’ any longer.

The MMO has just appointed its third CEO and is on its second chairman. It has the highest staff turnover and absences within the DEFRA family. We might be able to offer an insight into what is going wrong if we could see the October 2013 triennial review of the MMO. Sadly, despite promises and Parliamentary questions, it is yet to be published so we have no idea if it identified the problems. Similar DEFRA reviews of the Environment Agency and Natural England reported within four months.

A recent report by the Public Administration Select Committee raised concerns about governance of arm’s length bodies. There is a good argument that very little has been done to hold this regulator to account, and that without direct Ministerial responsibility for important functions it is all too easy for politicians to distance themselves and their departments from poor performance.

It will be for political parties to set out their intentions for our marine environment in their manifestos. Mantras like the ‘greenest government ever’ are unlikely to be accepted by the electorate as meaningful this time. With cross-party MPs calling for an independent review, and stakeholders across the spectrum echoing concerns, it would seem a sensible place for any prospective government to start. But will anyone grasp this nettle and get the vision of the Marine and Coastal Access Act back on track and bring it to life in a meaningful way?               `

Teresa Portmann is a marine consultant based in Cornwall.

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