By Helen Mitcheson, environmental lawyer at Freeths LLP and trustee of the Mammal Society and Richard Broadbent, environmental law director at Freeths LLP and former head of legal services at Natural England
After centuries of extinction, Eurasian beavers are making a dramatic comeback in the UK. From 1 October 2022, the Eurasian Beaver (Castor fiber) has been afforded further legal protection in England as a European Protected Species (EPS). This follows on from the protection also given to Eurasian beavers in Scotland, which has been in force from 1 May 2019. In this article we reflect on the significance of that legal protection and what this might mean for the future of Eurasian beavers in the UK.
The Eurasian beaver is native to the UK and used to be widespread until it was driven to extinction over 400 years ago. The Eurasian beaver has since been reintroduced in both England and Scotland. In Scotland, there are currently two populations – in Argyll, where the successful Scottish Beaver Trial ran from 2009 – 2014, and in the east of Scotland, in the Tay and Earn catchments, because of accidental or unlawful releases. In England, the River Otter Beaver Trial is the only licensed population of free-living beavers, although other groups of Eurasian beavers are living wild, primarily due to escapes and unauthorised introductions.
Legal protection and management of Eurasian beavers in Scotland
After many years of debate and discussion, Scottish Ministers announced in November 2016 that the Eurasian beaver populations in Knapdale and in the Tay and Earn catchments could remain in Scotland, subject to the satisfactory completion of a Strategic Environmental Assessment (SEA) and a Habitats Regulations Assessment (HRA). The intention was that Eurasian beavers in Scotland would be given protection under the law as EPS as soon as practicable after the completion of the SEA and HRA process. In due course, the Eurasian beaver was added to Schedule 2 of the Conservation (Natural Habitats, &c.) Regulations 1994 following an amendment made by The Conservation (Natural Habitats, &c.) Amendment (Scotland) Regulations 2019 (SSI 2019/64). This amendment gave the Eurasian beaver EPS status in Scotland.
The significance of being listed as an EPS meant that it became an offence to deliberately capture, kill or disturb Eurasian beavers, as well as to damage or destroy breeding sites or resting places of Eurasian beavers. However, the legislation does allow derogations, in the form of species licences, for these offences in order to manage Eurasian beaver activity such as building dams, burrowing or foraging which can have a damaging impact on a range of interests. For this reason, applications can be made to NatureScot, the species licensing authority in Scotland, to kill or trap Eurasian beavers, or to damage or destroy their breeding sites or resting places.
In 2020, Scottish charity Trees for Life brought a challenge to NatureScot’s approach to licensing of Eurasian beaver killing in Scotland, and in October 2021, the Outer House of the Court of Session in Edinburgh found that NatureScot had breached its duty to give reasons for the issuing of licences to kill Eurasian beavers in Scotland. As a result, all current licences were to be “reduced” (revoked), and NatureScot must now give detailed reasons for any future licences, specifically stating how a licence meets the legal tests set out in retained EU law. While the court accepted that there was no duty to give reasons in the statutory language of the relevant legislation, the fact that they derived from EU legislation (the Habitats Directive) meant that general principles of EU law were applicable. This was the first time that section 6(3) of the European Union (Withdrawal) Act 2018, which provides for the interpretation of retained law in accordance with retained principles of EU law, was applied to environmental legislation in Scotland. The Court’s findings have persuasive force to courts in England and Wales.
NatureScot has indeed been active in issuing licences to manage Eurasian beaver populations. Their records show that 87 Eurasian beavers were killed and 33 trapped and removed to prevent agricultural damage in Tayside. According to NatureScot, the 120 Eurasian beavers were removed from 21 geographically restricted sites (meaning sites where the impacts of Eurasian beavers need to be managed). The data also show that 47 dams were removed under licence. However, NatureScot says that they are “confident that this will not have had a negative impact on the favourable conservation status of the beaver”.
In September 2022, NatureScot published Scotland’s ‘Beaver Strategy 2022-2045’, produced by a partnership of stakeholders from across a range of land management, environmental, conservation and other sectors, and facilitated by the IUCN Conservation Planning Specialist Group. This strategy commits to an overarching aim of facilitating a “significant expansion of the range and size of the beaver population within Scotland” over a ten-year period. Recognising the concerns and requests made by stakeholders during the development of this strategy, the Scottish Government has stated that it will do its bit to support this expansion, ensuring land managers get the support they need to live with Eurasian beavers and to reduce any negative impacts.
Legal protection and management of Eurasian beavers in England
Despite having legal protection as EPS in Scotland since 2019, and despite populations being identified in England, until October 2022, the Eurasian beaver was not recognised as an EPS and did not benefit from the level of protection afforded to EPS in England.
The fledgling wild population in England is considered critically endangered and vulnerable to the negative impacts of inappropriate management making it is necessary to provide the species with suitable protection to meet the UK’s international obligations under the Convention on the Conservation of European Wildlife and Natural Habitats (the Bern Convention).
The Beavers (England) Order 2022 (the Order) has now amended the Conservation of Habitats and Species Regulations 2017 (the Habitats Regulations) in England to add the Eurasian beaver to Schedule 2, listing it as an EPS. The Order also varies the Wildlife and Countryside Act 1981 in order to remove the beaver from Part 1B of schedule 9 to that Act (‘Animals no longer present normally’) and add it to Part 1A of schedule 9 (‘Native animals’).
The amendment to Schedule 2 of the Habitats Regulations broadly mirrors the amendments made in Scotland, making it an offence to deliberately capture, kill, disturb or injure Eurasian beavers. It will also be an offence to damage or destroy breeding sites or resting places of Eurasian beavers. Certain management activities can only be undertaken under a licence from Natural England, the species licensing authority in England. In preparation for Eurasian beavers receiving legal protection, Natural England engaged with stakeholders in developing ‘class licences’ that can be used for Eurasian beaver management.
A class licence requires a one-off registration and allows a group or class of users to undertake common management activities in a standardised way. Natural England states that the class licences aim to make it easier for people to learn to live with beavers by allowing them to respond to problems swiftly. Individuals wanting to use a class licence must demonstrate they have either been trained or have experience in undertaking the relevant management activities. Natural England ran a number of training courses in September 2022 to provide land, water and infrastructure managers with the knowledge and skills required to manage Eurasian beaver activity and to support people already living with Eurasian beavers. Natural England states that more training courses will be organised to ensure that there is sufficient capacity of registered users across the country. Lethal control is not permitted under the Eurasian beaver management class licences as this requires individual attention by Natural England wildlife officers. An ‘individual licence’ for lethal control would only be issued by Natural England as a last resort in the most extreme cases of damage, where all other management actions have failed or proven to be impractical.
Natural England has further stated that in the short to medium term, while the English Eurasian beaver population is small and vulnerable and other management options are available, it is not anticipated that lethal control will be necessary or appropriate to manage conflicts. Natural England also recognises that removal of a territorial animal, such as a Eurasian beaver, is only a temporary solution as recolonisation by another beaver is very likely to occur.
The variation to schedule 9 of the Wildlife and Countryside Act 1981 will retain the requirement for a licence to be issued in order to release Eurasian beavers into the wild, but will prevent species control orders being issued, which would conflict with the protected status provided under Schedule 2 of the Habitats Regulations.
The future of Eurasian beavers in Scotland and England
With the Beaver Strategy now in place in Scotland, and Natural England’s approach to Eurasian beaver management and licensing, the next few years will be interesting for conservationists, ecological professionals, landowners and infrastructure managers as NatureScot and Natural England continue to navigate the complexities in Eurasian beaver management. The availability of licences, and now class licences, to manage Eurasian beavers may be contrasted with the reluctance by authorities to issue licences for the management of another EPS species, the common otter (Lutra lutra), which also have an impact on human activities. The difference in approach would likely be justified on the grounds that Eurasian beavers have been absent for centuries and therefore management is needed in order to manage conflicts as they return whilst otters have remained present but subject to savage persecution from which they are only now recovering. That position would need to be kept under review.