The letter of the law (Boris Waters, part 2)

The joy of the law is the letter of the law. In drawing up their proposed operational areas, Peel Ports have been concerned solely with navigation law. They are the authority for this for the estuary, nothing else, they own no land/water, their considered legal opinion is that the issue of prohibiting aircraft from flying operations over an area of bird conservation is a matter for government and the Civil Aviation Authority, as outside their jurisdiction. Put simply, they can't apply any letter of the law.

What protection is in place?

I will break down into the chunks as I understand them- firstly, legal protection for breeding birds.

On their own website the RSPB explain the legal situation as complex and advises people to look at the Act itself. They pare it down to, under this Wildlife and Countryside Act, 1981, all birds, their nests and eggs are protected by law (with certain exceptions). We birders get excited, thinking that is a be all and end all- it isn't. There is an awful lot of use of the word 'intentionally' within that act. However, some species have been recognised as needing more protection. They are on Schedule One.

Put simply, it is an offence to intentionally or recklessly disturb any wild bird listed on Schedule One while it is nest building, or at a nest containing eggs of young, or disturb the young of such a bird. The maximum fine in respect of a single bird, nest or egg- is a fine of up to £5,000, and/or six months' imprisonment.

One of the problems with Schedule One records is they have to be treated like the elephant in the room; too much publicity for sites brings about risks of intentional disturbance (theft of eggs, destruction of nests, disturbance by over-keen bird photographers), too little publicity risks an individual claiming ignorance. I will come back to the elephant in a later post, but for now I wish to establish a ground rule for this blogpost; how much I'm going to say/hint at. The Rare Breeding Birds Panel, which collates data at a national level, provides an annual report which refrains from naming individual sites- "Bird X': Kent- Y sites; site A, blah blah, site B blah blah". You cannot get specifics from it.  Over the years the annual county reports, produced by the Kent Ornithological Society have named certain species as breeding within the Medway complex, and have, from time to time, named the specific islands involved. Knowing where is not rocket science.

For many birdwatchers, this always sounds amazingly insane- they in the main know what birds are involved, and where they breed. For the layman, the secrecy is a nightmare. How do you know if you have a rare breeding bird in an area you own? On an area you visit for recreation? Well, bodies usually liaise with landowners. In the case of the Medway estuary, there is a jigsaw ownership pattern, making things that little bit harder.What if you have people using an area where a colony of rare birds is nesting? Again, bodies usually liaise, and find ways of advising users. And how do you then get the general public to appreciate matters?

So, please bear with me, I will be trying to tread a middle ground between RBBP and KOS. An unsatisfactory situation for the layperson, but hopefully enough to start to appreciate the concerns.

My starting point is simple; from the incidents I witnessed last past year, seaplane disturbance to nesting birds can be substantial, especially where a colony or part of a colony is close to the area in which a seaplane is operating; fright caused by the noise, fright caused by the silhouette overhead.

What is not clear from the map of suggested operational areas is how low seaplanes can operate when approaching agreed areas, what height they might be at when switching between the two operational areas (especially where breeding islands are close, or even overflown). I have been informed by Peel Ports that, legally, they can still fly wherever they want at whatever height, over public waters.

During the breeding season, a colony of gulls or terns is susceptible to disturbance. Colonies can and do give up. This can be mostly during the re-establishment of a colony (time to set up somewhere else) or may lead to birds just not  returning the following year. Some nesting birds are already arriving back on the Medway. They start with short visits to their colony (usually in the morning), then spend periods away either feeding or loafing. Simplistically, they are cautiously reconfirming breeding site safe, feeding grounds safe, and seeing if the rest of the colony thinks the same. Only then do they fully reclaim their nest site and refurbish in preparation for egg-laying.

During this time, and in the early part of nesting, the colonies on each island are prone to 'dreading'; all rising up as one, as if something has spooked the entire colony. Sometimes there is a cause, sometimes not, the science is not understood fully. But too man-made dreads/flushes, birds desert. Once eggs are laid, this happens much less, but the birds will still  rise up as one in response to a perceived threat, and too long off the nests leaves the eggs exposed to predators, such as rats.

A part of the gull colony on Bishop saltings, 8/7/15

This is the crux of the matter. A seaplane appears as a great threat to the colonies. A large object above a bird (some way to the side as well as directly overhead) worries a colony because it senses possible attack. This is why a seaplane being allowed to operate too low and too close to a colony, will, from my experience, cause what could be considered reckless disturbance.

I'd like to talk in general terms about the Mediterranean Gull, a Schedule One species named in print in the past as breeding on many of the islands. To avoid specific breeding details here, I'll write about my observations on feeding behaviour and flightlines over the past three summers.

The Med Gull, like any bird, needs safe nesting and feeding for successful breeding. This is sometimes termed a 'core area'. Med Gulls prefer short turf feeding, and head north and south of the estuary to suitable locations, some several miles away inland. Over time, routine flightlines between the areas become clear.

Mediterranean Gulls, feeding inland some 3 km south of nearest colony, May 2015

Please excuse the oversimplified map of pre-nesting flightlines to loafing areas on the mudflats and onward to (more generally marked) inland feeding areas. These flightlines are never as narrow and precise as the yellow lines I've marked, the birds are spread out. Nor are the flightlines as straight; seabirds often follow the channels, at low tide when readily apparent and at high tide, being able to creeks from subtle water colour changes and wave patterns from depth/flow; in reality, if Med Gulls finally choose to nest on one of these islands in the map then adults bringing nesting material back at the start of the season, parents bringing food back during the season would over the course of the season create a spaghetti pattern of usage throughout those areas a seaplane might be operating.

It must be appreciated birds are much happier flying over shipping, they are much less happy passing under/by a 'threat' that is in the sky with them. Parts of the colony can and do operate through the airspace on offer. Would a seaplane, if operating similar to last year, say flying for between 40 minutes and an hour over the area, cause reckless disturbance to the nests and to the transiting parents? By making up to eight or more landings/take-offs in a period of up to about an hour close to one of the chosen islands? By flying outside the corridors to carry out turning movements, including re-positioning outside of these allocated 'landing strips'?

I hope the simplistic map starts to explain there are larger, complex patterns of disturbance that have to be considered. Reckless disturbance of Schedule One birds is against the law.

And there are other Schedule One species breeding around the estuary. Plus many other species whose nests will be at risk from disturbance during the breeding season.

Of course, by concentrating on the legalities of Schedule One in this post, 'loopholes' are apparent; what protection is there for the other breeders and all of the birds outside of the breeding season?

This is where the existing international recognition comes into play. The UK is signed up to various agreements to protect our estuaries. Ramsar. Natura2000. All leading to the Medway's designation as an SPA- a Special Protection Area under the EC Birds Directive, to help our scarcer birds, including those on migration and wintering; in the next post I will detail upon how such species utilise the areas in and around the proposed operational areas, and also detail the level of disturbance I witnessed caused by take-offs/landings and banking/turning at one of these proposed sites last year.