Protected areas for harbour porpoise,but at what cost to their conservation?

Council Directive 92/43/EEC (OJ L 206/22.7.1992) on the conservation of natural habitats and of wild fauna and flora (EU Habitats Directive) ¹ represents one of the most important instruments ever introduced for nature conservation, and yet its application has led to a questioning of its value, ² particularly in relation to its perceived impact on business. ³ This has been exacerbated by the legal approach to enforcement, which has not been examined through the lens of favourable conservation status (FCS) which is at the heart of the directive, but instead is dictated by lobbyists (e.g. the environmental non-governmental organisations (NGOs)), leading to a system focused on charismatic species and one where the best conservation tools can be ignored. ⁴ In particular, this can be exemplified by the harbour porpoise, a European Protected Species and one for which Special Areas of Conservation (SACs) should be designated if suitable sites can be identified. ⁵ Harbour porpoise are the smallest marine mammal in UK waters and are a highly mobile transnational species, with some individuals moving thousands of kilometres in a month. ⁶ Bycatch is recognised globally as the most important anthropogenic pressure exerted on this species. ⁷ Also of primary importance is chemical contamination, notably persistent organic pollutants, which are likely to be having a population level effect. ⁸ Of secondary importance is impulsive noise, such as that generated by seismic surveys ⁹ or pile-driving associated with industrial development. ¹⁰ This article argues that the proactive measures of the EU Habitats Directive ¹¹ ought to be focused on Article 12 (incidental killing, capture and disturbance) rather than Article 3 (SACs), with the former requiring a good understanding of population trends in order to assess the extent of impacts on and to manage harbour porpoise in the best way.

The determination of FCS is central to the EU Habitats Directive ¹² and all subsequent requirements rely on its accurate assessment. Harbour porpoise are considered to have a FCS. ¹³ This aligns with the International Union for Conservation of Nature (IUCN) Red List grading ¹⁴ of ‘least concern’, meaning that the species is widespread, abundant and that it is not considered to be threatened or conservation dependent. ¹⁵ Despite this, there is a public perception that the species is endangered.

The assessment of FCS for transnational mobile species is difficult. ¹⁶ Because harbour porpoise range and habitat in European waters is the continental shelf, these elements of FCS are largely unchanging. ¹⁷ Fluctuations in the population (that is, abundance and its trends) are, therefore, the more important determinant of FCS. There have been two international population level surveys between which no significant difference in abundance was found. ¹⁸ However, statistical power analysis ¹⁹ indicates that at least four such surveys are required before a significant change could be detected. So whilst no change in abundance has been detected, because these surveys are decadal, it is likely to be 2026 before this line of enquiry can be concluded with any confidence. Alternatively, these international population surveys are required every three years to be able to confidently report on trends over a shorter timescale. ²⁰

In October 2012, the European Commission (EC) began a Pilot Case (4125/12/ENVI) against the UK for failing to propose SACs with harbour porpoise as a qualifying feature, based on evidence it had received from the World Wildlife Fund (WWF). ²¹ In October 2014, the UK then received a Letter of Reasoned Opinion from the EC for not having harbour porpoise SAC’s. ²² The UK had been working over a number of years to identify potential sites but this was accelerated following the reasoned opinion it received from the EC. ²³

Protected areas are a tangible conservation tool, easily understood by the public, unlike the mechanisms to provide strict protection. There is, therefore, a tendency to focus on protected areas even when they may not provide the most appropriate conservation tool. ²⁴ The strict protection of the EU Habitats Directive ²⁵ has received very little attention from NGOs when it comes to providing evidence of non-compliance to the EC. Even where complaints are made, for example, with respect to marine renewable energy developments, they focus on the lack of SACs for harbour porpoise rather than on Article 12(1) of the EU Habitats Directive. ²⁶ It could be that the UK is perceived by NGOs to have got the application of Article 12 right, but the literature does not bear this out. ²⁷

The EC states that ‘the efficient use of the different species conservation instruments requires a species-by-species approach’. ²⁸ Because bycatch is recognised as the greatest anthropogenic threat to harbour porpoise, the UK had largely focused conservation efforts on this issue. ²⁹ Accordingly, the EC’s challenge on the need to designate SACs is somewhat surprising, particularly given the widespread nature of the key anthropogenic pressures, which indicate that area protection is not an efficient conservation tool.

Between 2006 and 2013, the International Council for the Exploration of the Seas (ICES) has advised the EC every year that it is not possible to assess whether current levels of bycatch are affecting FCS because there is insufficient monitoring of the relevant static net fisheries by the majority of Member States. ³⁰ In 2014, ICES advised the EC that bycatch levels may pose a conservation risk in some fisheries. ³¹ Over the same decade, no Member State has been challenged with respect to the monitoring required under Article 12 to determine whether incidental killing and capture is having a negative impact. Where an SAC leads to displacement of fisheries, it may actually be detrimental to harbour porpoise conservation. ³²

The impact of persistent organic pollutants in the environment is well recognised, and legislation has been in place for many years. ³³ Until recently, the contaminant burden in harbour porpoise had gradually been declining, ³⁴ but is no longer. ³⁵ This indicates the presence of legacy sources, which need to be identified if further reductions in contaminant burdens are to be achieved. SACs have little to contribute to managing this pressure.

Disturbance as a result of impulsive noise is largely derived from by seismic surveys (usually associated with the oil and gas industry) and pile-driving (associated with the offshore wind renewable power industry). The former industry is heavily regulated ³⁶ and has been for many years whilst the latter is rapidly increasing in scale in the bid to meet climate change targets. ³⁷ SACs could have a role here, but at what cost? One NGO has already proposed that all such activities should be prevented within sites. ³⁸ If this were to be the case, then the UK will fail to meet its climate change obligations. ³⁹ Once operational, marine wind farms can actually be beneficial for harbour porpoise. ⁴⁰

The conservation of harbour porpoise, as with other mobile transnational species, is highly complex. ⁴¹ The lobbyists that have hitherto driven the enforcement agenda need to consider the consequences of their actions. The challenge to the UK led to it is argued an unhelpful deviation from more relevant conservation measures. It has significantly delayed the introduction of systematic monitoring and a planned expansion of bycatch monitoring. Both these activities, it is suggested, would have been far more beneficial and provided a significantly better understanding of the harbour porpoise conservation status and the major cause of mortality.

Post the 2015 UK general election, there has been additional pressure to reduce spending across all government departments. ⁴² It is highly unlikely that the situation will change and an improved future for harbour porpoise is now less certain. This is a worrying situation, particularly in today’s economic climate with a focus on the blue economy. ⁴³ Reduced species monitoring linked with an increase in activities which may impact upon harbour porpoise will not help conservation. While ‘humans are good at drawing lines … the natural world and the ocean especially is not good at abiding by them’. ⁴⁴ It is argued here that adaptive and dynamic management of human activities is required rather than a focus on protected areas, at least in the case of harbour porpoise. After all, we cannot manage harbour porpoise by ourselves.