We asked one of our Directors, Alan Mc Gurdy, to examine and review current and historic legislation regarding fish passage and the legal framework which underpins the current unsatisfactory  regulatory process. It is evident that this legislation needs to be updated and radically amended to satisfy the requirements of migratory fish.

Historical Background

The  present legislation concerning fish passage in Ireland is not remotely adequate and it is now timely to examine how the current legislation, which is outdated and not in keeping with various EU Directives notably relating to biodiversity and habitat protection, is still relied upon by Inland Fisheries Ireland.

The Fisheries Commission of 1836 identified significant problems within the fishing industry and this was answered by the enactment of the Fisheries (Ireland) Act 1842 which repealed the previous fisheries statutes (27) with a few exceptions such as the “Cooper” Act 1837. Amongst the many provisions it legislated for was the creation and maintenance of fish passes. 

Unfortunately, some provisions of the 1842 Act  have remained with us in one form or another to the present day. Despite the environmental protection given generally since we acceded to the Treaty of Rome nothing has changed and a review of this aspect of fisheries legislation is long overdue. In the early part of the 19th Century the understanding of the biology of fish species was naïve and measures to safeguard a species were not always targeted or effective. The Origin of Species (Darwin) was not published until 1859 and even then the concepts were contested for many years. Limitations are still in place today that were introduced at this time and restrictions to improve fish passage at weirs and dams are unfortunately still in our legislation.

In essence this legislation was the basis on which the current legislation relies and essentially enshines certain principals

• Water for a fish pass is limited – without impairing the navigation or lessening or impairing the effective working power of the mill or factory to which such dam belongs… S 115 F(C)A1959 Act. 
• 5% of the working horsepower is all that can be demanded for a fish pass – If the report discloses that the execution of the repairs specified in such notice would involve a reduction of more than five per cent in the working horsepower which was available to such mill or factory up to the date of the service of such notice (as measured when the level of the water at such dam is
  at the average level of the crest of such dam), the Minister shall withdraw such notice and inform such occupier accordingly… S 116 F(C)A1959.
• On request to the Minister an operator may be allowed to operate without screens – If, in respect of any watercourse, cut, channel or sluice to which subsection (1) of this section applies and which was constructed for the purpose of conveying water as a moving power for machinery, it is proved to the satisfaction of the Minister that exemption during any period from the obligations imposed in respect thereof by the said subsection (1) is necessary for the effective working of such machinery, the Minister may grant such exemption… S 123 F(C)A1959 (Granted in the case of Clohamon Weir on the Slaney in the past)

There have been some changes over time but these are not reflective of the new environmental centred legislation envisaged in the Habitats Directive 94/43 EEC., or Water Framework Dir 2000/60 EC. Until the formation of the Irish Free State the power to make orders for the creation and improvement of fish passes was vested in Commissioners in the form of Fisheries Inspectors, these powers are now vested in the Minister S115, S116, S117, S118 and S123, F(C)A 1959. This provision had limitations when the Dept. responsible for Inland fisheries was equipped with a team of engineers. Fisheries lost its engineering division in the 1990’s following the creation of the Marine Institute.

A separate issue arose following the enactment of the Fisheries (Ireland) Act 1842 the good intentions of the legislation needed to be enforced. In the Fisheries (Ireland) 1848 the Boards of Conservators were established covering the Island of Ireland and these bodies were dominated by the owners of fisheries.

They were allowed employ people on a yearly basis to carry out the functions of the conservators and this system of fisheries protection and management persisted until 1980 when the then Inland fisheries Trust and the Board of Conservators were amalgamated into a regional structure. The Board of Conservators had received very little state aid from their formation until they received some limited assistance a short time before they were disbanded.

In summary the powers to mitigate any adverse effect from dams rested firstly with the Commissioners for Fisheries and then after 1922 with the Minister responsible for fisheries. Currently, sections 115, 116, 117, 118, 123, etc. F(C) Act 1959 as amended contains the principal powers reserved to the Minister. The enforcement provisions of the rest of Chapter 5 rested with the Boards of Conservators later Regional Boards and Inland Fisheries Ireland. It’s worth pointing out that any person can take a case in the District Court for most of the offences under the provisions of the Fisheries Acts.

A complete version of the Fisheries Acts are contained in The Irish Statute Book
https://www.irishstatutebook.ie/

The original legislation did not envisage the changing uses of water and the legislation then or now does not allow fish or fisheries to interfere with the working horse power at the mill site. The older installations had a right to use water to drive a mill wheel over the years many were adapted to generate hydro power and whereas the operation of mills were seasonal, hydro power is a 365 day x 24 hrs operation. There has never been an attempt to limit the new use of water power to mirror the intermittent original use and entitlement. Also the original use was satisfied by adequate flow to turn the water wheel, the objective of hydro power operator is to optimise the power output.

A New Threat

There is a mistaken belief that hydro power is a win win situation, a renewable source of power with no harm to any aspect of the environment.
There is a drive to harness all the possible sources of renewable energy and the Renewable Energy Authority is promoting low head hydro and has published a map https://www.seai.ie/technologies/seai-maps/hydro-power-map/

Prior to 1960 in general there was good salmon escapement and if a small percentage of migrating salmon failed to reach their spawning grounds due to hydro it was unfortunate. At the same time Ireland was killing up to a million salmon commercially. Now if any salmon are lost or smolts fail to reach the sea this is a tragedy, it’s a high price to pay for doubtful savings on carbon.

Approximately 25% of the total river catchment area in Ireland is harnessed for the generation of electric power by the ESB. All the catchments harnessed are or were notable salmon rivers namely the Erne, Shannon, Claddy, Crolly, Lee and Liffey.

The ESB have attempted to compensate for the restriction of salmon access to their spawning habitat with minimal success to date. There are several provisions in the Fisheries Acts which exempt the ESB from precaution. They are also protected in the Local Government (Water Pollution Act 1977) as amended.

The original legislation did not envisage the changing uses of water and the legislation then or now does not allow fish or fisheries to interfere with the working horse power at the mill site. The older installations had a right to use water to drive a mill wheel over the years many were adapted to generate hydro power and whereas the operation of mills were seasonal, hydro power is a 365 day x 24 hrs operation. There has never been an attempt to limit the new use of water power to mirror the intermittent original use and entitlement. Also the original use was satisfied by adequate flow to turn the water wheel, the objective of hydro power operator is to optimise the power output.

A Summary and Some Points from Existing Legislation – 1959 Fisheries Consolidation Act

Legislation Continued

Points for consideration

A difficulty with the legislation is that the power to correct or improve the passage of fish rests with the Minister whereas the enforcement powers rest with the Fishery Authority. Even then the Minister is restricted by what he may do by the legislation. This could be corrected in part by vesting all the powers and functions in a single authority. The communication between Minister and Fishery Authority sometimes may be poor or non-existent. The emphasis until now has been the turbine operator has the right without the requirement to prove the right and fisheries is only entitled to get minimal flow to service a fish pass. The requirements of other species that migrate such as lampreys, eels and shad are not expressly covered by the existing provisions.

Hydro schemes should only be allowed continue where they can show that they are not having a detrimental effect on any fish species. At present the supply of water to the turbine is given priority over the needs of fish. The person or company benefiting from the hydro scheme should be the person obliged to remedy any factor which prevents of impairs the passage of all fish.

Many hydro schemes expanded and developed to utilize the available water source without restriction. Some occupiers do not have title which allows them to do what they now claim as a right. Most operators make no documentation available to show their operating history and the quantity of water they are capable of using or how much electricity they generate.

An offence under 119, applies to “statutory fish pass”; in many cases this proof has been difficult to establish. One of the common cases has been taken under the provisions of sections 119 (2c) & (d) The legislation is silent on effectiveness of a fish pass. The instincts of the fish negotiate the obstacle in the way they know best and not necessarily following the path that we as humans lay out for them. The strength of migratory fish declines the longer that they are in a river system and the closer to spawning. This needs to be taken into account when designing a fish pass.

If a turbine cannot operate without damaging the environment then it should be turned off until it can. In Section 123 in dealing with the gratings/screens it states that the space between the bars of a grid shall not exceed 2 inches in any place this standard may be liberal and the section is silent on the effectiveness of the screen. Also it takes no account of trout or other species. Once a mill owner provides a screen in the correct location he is compliant with the provision of the legislation and no account is taken of how many salmon or trout are in his tail race or head race. The failure to have effective screens is a recurring problem. In extreme weather conditions the whole weir and site may be inundated but the fish are still affected and become trapped in the races.

There is no power for an authorised person or officer to obtain information to aid investigation such as the amount of water being used. Or when the turbine operated etc.

A golden opportunity was ignored in 1992 with the advent of the Habitats Directive (92/43) when scheduled species (such as Salmon) were offered special protection, but as we know nothing special happened.

The cost of policing these installations is born by the exchequer and in the case of the high profile hydro plants the annual cost of inspections possibly exceeds the value of electricity generated. It is my opinion that low head hydro schemes potentially cause more damage to migrating fish than their doubtful benefit to the economy or the owner.

Opportunity to improve
A review of many aspects of Fisheries Legislation is long overdue and the passage of fish upstream and downstream on our rivers needs to be updated. New provisions which provide safe passage of fish over weirs and dams to reflect what we now know are the problems facing depleted stocks.

Possible options to improve the regulation of the impact of weirs on fish migration

1. Make a single authority responsible to issue orders and regulate the use of weirs and dams. Improve the protection given to migrating fish in new legislation. or and
2. Issue a renewable certificate to operators and attach conditions such as make the hydro operator responsibility for the safe passage of fish compliance with Habitats Dir Fisheries Acts etc. (A self-Policing charter) Compliance ensures renewal. Infringements of the terms of the “certificate to operate a hydro plant” would be dealt with in court and for the repeat offenders the court may suspend the certificate.
3. Alternatively improve the existing legislation (continue a dual responsibility of both the Minister and the Fisheries Authority).

The present situation regarding the various ESB hydro schemes is a very complex and requires a willingness by the ESB and government to finally act in the best interests of migratory fish. However there are large obstacles to be overcome in the legislation underpinning the ESB usage of these natural resources.

While this may be addressed under the Water Basin Management Plan in regard to Ardnacrusha and Parteen complex on the Shannon it is obvious that water management will have to play a large part when fish passage infrastructure is completed. It is obvious in the case of Parteen and the old Shannon watercourse that the present minimum statuary release of water will have to be increased and regular releases of water to attract salmon and other species to Parteen will have to be part of solution. This will require legislative change. 

Salmon Watch Ireland recently facilitated a conference regarding barriers to migration. Please press link on photo to observe the conference proceedings below