Legalize / United Kingdom / Statutory-Instrument

The Eels (England and Wales) Regulations 2009

Type Statutory-Instrument

Publication 2009-12-14

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

Reform history JSON API PDF

Made: 14th December 2009

Laid before Parliament: 21st December 2009

Laid before the National Assembly for Wales: 21st December 2009

Coming into force: 15th January 2010

The Secretary of State and the Welsh Ministers are each designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to the common agricultural policy.

The Secretary of State in relation to England and the Welsh Ministers in relation to Wales make these Regulations under the powers conferred by that section.

PART 1 — General

Title, commencement and application

1

These Regulations—

(a) may be cited as the Eels (England and Wales) Regulations 2009;

(b) come into force on 15th January 2010;

(d) do not apply to so much of the River Tweed as is situated within the Tweed District as defined by the Scotland Act 1998 (River Tweed) Order 2006 .

Interpretation

2

In these Regulations—

“the Agency” means the Environment Agency;

“the appropriate agency” means (except as provided in regulation 4)—in relation to England, the Agency, andin relation to Wales, the NRBW;

“appointed person” has the meaning given in paragraph 2 of the Schedule;

“dam” means any structure designed to confine, direct, or control water and includes weirs;

“diversion structure” means any conduit or channel by which water is abstracted from its usual channel or bed or from the sea, or by which water is returned to that (or another) channel, bed or sea;

“eels” means any fish of the species Anguilla anguilla, and includes elvers and glass eels;

“eel pass” means any device, opening or structure that allows the passage of eels around, over or through any dam or obstruction;

“eel screen” means any device, moving or stationary, that is designed to impede the passage of eels through a diversion structure;

“England” includes the territorial sea adjacent to England not forming any part of Wales;

“fish pass” means any device, opening or structure that facilitates the passage of fish around, over or through any dam or obstruction;

“the NRBW” means the Natural Resources Body for Wales;

“obstruction” means anything (whether natural or artificial) in or near waters that impedes, or is likely to impede, the passage of eels through those waters;

“Wales” has the same meaning as in section 158 of the Government of Wales Act 2006 .

PART 2 — Records and restocking

Eel catch returns

3

(1) This regulation applies in relation to any person who, having been granted any licence or other authorisation to fish for eels with any instrument other than rod and line, is required to submit an eel catch return .

(2) A person completing an eel catch return must record—

(a) the total weight of eels caught of 12 centimetres or less in length;

(b) the total weight of those eels retained but dead;

(d) the dates on which the eels were caught;

(e) the locations where the eels were caught;

(f) the destination of retained eels.

(3) Failure to comply with paragraph (2) is an offence.

Records

4

(1) An aquaculture production business operator must keep a record, in such form and manner as the appropriate agency may specify, of—

(a) any eels of 12 centimetres or less received at their aquaculture production business;

(b) the name and fishing licence identification number of the person who caught the eels;

(2) The aquaculture production business operator must provide the appropriate agency with a copy of the record at such intervals as the appropriate agency may specify and must allow the appropriate agency to inspect the record at any reasonable time.

(3) Failure to comply with paragraph (1) or (2) is an offence.

(4) For the purposes of this regulation, “the appropriate agency” means—

(a) in relation to business premises in England, the Agency;

(b) in relation to business premises in Wales, the NRBW; and

(c) in relation to business premises partly in England and partly in Wales, the Agency or the NRBW, at the election of the aquaculture production business operator.

(5) The election referred to in paragraph (4)(c) must be notified in writing to both the Agency and the NRBW on or before 31 January in each year that the premises are used in connection with an aquaculture production business.

Imports

5

(1) Any person who imports live eels into England or Wales must—

(a) record the name of the aquaculture production business (if any) from which the eels were obtained;

(b) where the eels were obtained directly from the person who caught them, record the name and fishing licence identification number of that person and the eel river basin in which the eels were caught; and

(2) Failure to comply with paragraph (1) is an offence.

Exports

6

(1) Any person who exports live eels from England or Wales must—

(a) record where and the date on which the eels were obtained, including the name of the aquaculture production business, the food business or the eel river basin in which the eels were caught (as the case may be) and, in the case of eels obtained from an eel river basin, the name and fishing licence identification number of the person who caught the eels;

(b) be satisfied that eels obtained from an eel river basin are caught in a manner consistent with the eel management plan prepared for that eel river basin; ...

(d) ensure that the eels they export are accompanied by a copy of the certificate prepared under sub-paragraph (c); and

(e) retain all certificates prepared under this paragraph for 12 months from the date of the certificate and allow the Agency , where those certificates are retained in England, or the NRBW, where those certificates are retained in Wales, to inspect those certificates at any reasonable time.

(2) For the purposes of this regulation an eel management plan is a plan marked as such , dated March 2010 and deposited at the offices of the Secretary of State for Environment, Food and Rural Affairs, Nobel House, 17 Smith Square, London SW1P 3JR.

(3) Failure to comply with paragraph (1) is an offence.

Duties on consignees

7

(1) A person must not accept a consignment of live eels that has been imported into England and Wales unless the consignment is accompanied by—

(a) a certificate prepared under regulation 5; and

(b) where live eels from another imported consignment have been added to the consignment, a copy of the certificate prepared under regulation 5 in relation to that other consignment.

(2) The consignee must retain all certificates and (where applicable) copies of certificates for 12 months from the date of the document and allow the Agency, where those documents are retained in England, or the NRBW, where those documents are retained in Wales, to inspect those documents at any reasonable time.

(3) Failure to comply with paragraph (1) or (2) is an offence.

Restocking

8

(1) The appropriate agency may, by service of a notice, require an aquaculture production business operator to place on the market, for use in the restocking of eel river basins, eels of 12 centimetres or less held by the business.

(2) A notice must specify—

(a) the amount of eels to be offered for restocking in accordance with the formula—

$A=XnTvV−R$

Where—

A is the amount of eels of 12 centimetres or less to be placed on the market for restocking;

R is the amount of eels of 12 centimetres or less restocked so far by or under the direction of the appropriate agency into eel river basins in the year the notice is issued;

T is the amount of eels of 12 centimetres or less recorded in eel catch returns referred to in regulation 3 and submitted to the appropriate agency in the year preceding the year in which the notice is issued;vis the amount of eels of 12 centimetres or less recorded so far under regulation 4 by the aquaculture production business in the year the notice is issued;

V is the total amount of eels of 12 centimetres or less recorded so far under regulation 4 by all aquaculture production businesses in the year the notice is issued; and

Xₙ is 0.35 when n is the year 2010, 0.40 when n is the year 2011, 0.50 when n is the year 2012 and 0.60 when n is the year 2013 or later;

(b) the period during which the eels are to be placed on the market.

(3) Any person who purchases eels placed on the market under paragraph (1) must make a declaration to the effect that the eels will be used for restocking in an eel river basin within 6 months from the date of the declaration.

(4) Failure to comply with a notice served under paragraph (1) or to make a declaration under paragraph (3) is an offence.

(5) A person who fails to restock in accordance with a declaration made under paragraph (3) commits an offence.

Interpretation

9

In this Part—

“aquaculture production business” and “aquaculture production business operator” have the same meaning as in Council Directive 2006/88/EC on animal health requirements for aquaculture animals and products thereof, and on the prevention and control of certain diseases in aquatic animals;

“eel river basin” is a river basin for which there is an Eel Management Plan as defined in Article 1A of Council Regulation (EC) No 1100/2007 establishing measures for the recovery of the stock of European eel.

PART 3 — Eel Licences

Close season

10

(1) Notwithstanding section 25 of the Salmon and Freshwater Fisheries Act 1975 , a person who fishes for eels by means other than rod and line during the close season commits an offence.

(2) But this regulation does not apply to a person to the extent that they are acting—

(a) for some scientific or fisheries management purpose;

(b) with the written authority of the Agency; and

(3) For the purposes of this regulation, the close season is—

(a) for eels of 12 centimetres or less in length, the period beginning on 26th May 2010 and ending on 14th February 2011; and

(b) for all other eels, the period beginning on 1st October 2010 and ending on 31st March 2011.

Reduction of fishing effort

11

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART 4 — Passage of eels

Construction, alteration etc of obstruction

12

(1) This regulation applies to—

(a) the construction of a new dam;

(b) alterations or maintenance made to an existing dam that are likely to affect the passage of eels around, over or through the dam;

(c) the construction or maintenance of a structure in or near waters that amounts to, or is likely to amount to, an obstruction.

(2) Any person who constructs, alters or maintains a dam or structure must first notify the appropriate agency.

(3) An application for, or variation of, a licence to abstract water or for impounding works under section 24 or 25 of the Water Resources Act 1991 is deemed to be notification for the purposes of this regulation.

(4) Failure to comply with paragraph (2) is an offence.

Reporting an obstruction

13

(1) A responsible person must immediately notify the appropriate agency of any obstruction occurring since the coming into force of these Regulations.

(2) Failure to comply with paragraph (1) is an offence.

Eel passes

14

(1) This regulation applies where the appropriate agencydetermines that the passage of eels is impeded or likely to be impeded by—

(a) a dam or obstruction in or near waters to which these Regulations apply;

(b) any works notified to the appropriate agency under regulation 12; or

(2) Theappropriate agency may, by service of a notice, require a responsible person, at their own cost, to—

(a) construct an eel pass;

(b) make alterations to an existing eel or fish pass;

(d) remove an obstruction; or

(e) take any other action specified in the notice.

(3) The notice—

(a) may not require anything that interferes with any statutory right of navigation;

(b) may require the responsible person to submit plans for an eel pass or for alterations to an existing eel pass or fish pass to the appropriate agency for approval;

(d) may require the construction of an eel pass, or alterations to an existing eel or fish pass, to be carried out in accordance with plans approved by the appropriate agency.

(4) The appropriate agency may, by service of a further notice, require the responsible person—

(a) to operate any eel pass constructed or altered, or any fish pass altered, under this regulation in accordance with any conditions stated in the notice;

(b) to make any alterations to an eel pass constructed or altered or to any fish pass altered under this regulation.

(5) Failure to comply with a notice served under paragraph (2) or (4) is an offence.

Maintenance and repair of eel pass

15

(1) A responsible person must, at their own cost, maintain an eel pass in an efficient state.

(2) Failure to comply with paragraph (1) is an offence.

Damaging or obstructing eel pass

16

(1) A person must not damage, interfere with, obstruct or do anything that impedes the passage of eels through an eel pass.

(2) Failure to comply with paragraph (1) is an offence.

Eel screens

17

(1) This regulation applies to—

(a) any diversion structure capable of abstracting at least 20 cubic metres of water through any one point in any 24-hour period; and

(b) any diversion structure returning water to a channel, bed or sea.

(2) Before 1st January 2015, the appropriate agency may, by service of a notice, require a responsible person to place an eel screen in a diversion structure.

(3) The notice may specify the dimensions and type of screen and where it is to be placed in the diversion structure.

(4) On or after 1st January 2015, a responsible person must ensure an eel screen is placed in a diversion structure.

(5) The appropriate agency may, by service of a notice—

(a) exempt the responsible person from the requirement in paragraph (4); or

(b) require the responsible person, at their own cost, to alter the dimensions (including mesh size) and the placement of any screen placed under paragraph (4) to those specified in the notice.

(6) It is an offence to fail to comply with—

(a) a notice served under paragraph (2) or (5)(b); or

(b) paragraph (4).

By-wash

18

(1) This regulation applies where an eel screen placed in accordance with regulation 17 is located at a point in the diversion structure other than at the entrance to the conduit or channel by which the water is abstracted.

(2) A responsible person must provide a continuous by-wash immediately upstream from the eel screen which allows eels to return by as direct route as practicable to the waters from which they entered the diversion structure.

(3) Failure to comply with paragraph (2) is an offence.

Eel screens and by-wash

19

(1) A responsible person must ensure that an eel screen or by-wash—

(a) does not interfere with any statutory right of navigation;

(b) is constructed and located, so far as reasonably practicable, so that eels are not injured or damaged by it;

(2) A person must not damage or interfere with an eel screen or do anything that impedes the free passage of eels through a by-wash.

(3) Failure to comply with paragraph (1) or (2) is an offence.

Action by the Agency

20

(1) Any action required under this Part may be carried out by the appropriate agency instead of the responsible person—

(a) in an emergency;

(b) if the responsible person cannot be ascertained; or

(2) The responsible person is liable for any reasonable costs incurred by the appropriate agency in taking any action under this regulation.

Abstraction and impounding works licences

21

(1) Notwithstanding sections 24 and 25 of the Water Resources Act 1991, any action required by the appropriate agency under this Part does not constitute an abstraction or impounding works for the purposes of that Act.

(2) A notice served under this Part may disapply any condition relating to the passage of eels in an abstraction or impounding works licence granted under that Act.

Interpretation

22

In this Part a “responsible person” in relation to a dam, diversion structure or obstruction means the owner, occupier or person in charge of the land on which the dam, structure or obstruction lies.

PART 5 — Notices and appeals

Notices

23

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