Peatland Restoration and Breeding Birds

          

Published: December 2022

Authors	Dr Andrew Douse | Policy & Advice Manager, Ornithology NatureScot |  Great Glen House | Leachkin Road | Inverness | IV3 8NW    Dr Rebekka Artz | Peatland ACTION Manager for Technical Advice NatureScot | Inverdee House | Baxter Street | Aberdeen | AB11 9QAS
Contacts for enquiries	Ian McKee | Peatland ACTION Manager for Technical Advice NatureScot | The Enterprise Centre | Kilmory Industrial Estate | Lochgilphead | PA31 8SH |   t: 0131 316 2690 Email: [email protected]   nature.scot/PeatlandAction – Connecting People and Nature in Scotland - @NatureScot
Date first published	June 2018
Updated	V1 March 2019 V2 January 2020 V3 February 2022 (not released) V4 December 2022
Date for review	December 2023

 

1. Introduction

Undertaking management and restoration work on Scotland’s peatland habitats has the potential to conflict with Scotland’s wild birds breeding on these habitats. The majority of wild birds will start breeding activity towards the end of March and April, though egg laying generally starts towards the end of April or early May for many bird species found on peatlands. The breeding season ends at the end of July for many species but some species may continue well into August. Other species, raptors in particular, may start breeding as early as February, and, in some cases require protection from harassment at all times of the year. 

The ability for restoration work to be carried out on these peatland habitats will therefore depend on:

• the species present
• their legal status
• where they are located
• the time they arrive on the breeding grounds
• their egg laying dates
• whether chicks remain in the nest or are more mobile (phenology).

This guidance sets out a protocol that all parties involved in peatland restoration are required to follow to ensure that they stay within the constraints of the law. 

There are two reasons why those undertaking peatland restoration must pay due care and attention to ornithological constraints:

Legal requirement

• The law (especially the Wildlife & Countryside Act 1981 (as amended), gives protection to all breeding birds; and

Policy requirement

• The government is committed to protecting biodiversity. Funding works through Peatland ACTION that could result in loss, damage and disturbance to breeding birds from any management work is inconsistent with this biodiversity duty.

2. What the law says

All wild birds enjoy legal protection, but the level of protection varies depending upon the legal status of each bird species. It is an offence to intentionally or recklessly take, injure or kill any wild bird. In addition:

• During the breeding season, the nests of all wild birds that are in use or being built are legally protected from damage, destruction or interference. This includes the taking or destruction of an egg of any wild bird.
• In addition, anything that would obstruct or prevent a nest from being accessed or used is also likely to constitute an offence. Whether this is from deliberate or reckless actions, intent does not need to be demonstrated.
• Where there is a reasonable expectation that an individual should be (or have been) aware of the presence of breeding birds, then an offence may result.
• Wild birds are vulnerable particularly when they are on nests with eggs, or have dependent young. Causing disturbance to the birds or nest, whether physical, or by causing too much noise or by your visual presence, may result in an offence being committed.
• Species listed on Schedule 1 of the Wildlife & Countryside Act, 1981 (as amended), including most raptors, are also protected from deliberate or reckless disturbance while it is building a nest or is in, on or near a nest containing eggs or young.
• Under Schedule 1A of the Nature Conservation (Scotland) Act 2004, golden eagles, white-tailed eagles, hen harriers and red kites, are protected from harassment at any time, not just within the breeding season. Schedule A1 protects the nests of golden eagle and white-tailed eagle at all times of the year.

There are exceptions to the above, but none of the licensable purposes relate to work undertaken as part of peatland restoration projects. This means Peatland ACTION cannot consider licensing as an option to undertake works which will cause loss, damage, or disturbance to breeding birds. Consequently, ALL restoration work requires to avoid any activity that would cause loss, damage, or disturbance to breeding birds.

3. Sensitive bird species

Widespread species: red-throated diver, black-throated diver, merlin, hen harrier, golden eagle, short-eared owl, greenshank, schinzii dunlin, golden plover, wood sandpiper and black grouse (lek sites only).

Restricted range species (notably those found in the Northern & Western Isles): Arctic skua, great skua, whimbrel.

Species in bold are listed on Schedule 1 of the Wildlife & Countryside Act (1981);  breeding schinzii dunlin, golden plover and short-eared owl are included on Annex 1 of the EU Birds Directive but are not listed on Schedule 1. Hen harrier and golden eagle are also listed on Schedule 1A (birds that cannot be intentionally or recklessly harassed at any time).

4. Bird breeding season dates

NatureScot has published a table of bird breeding season dates relevant to Scotland. The table shows 'sensitive' time periods, equating to the beginning and end of a bird's breeding season in Scotland.  The start of the breeding season is defined as the approximate earliest start date for territory/nest site establishment and egg laying and the end of the breeding season is defined by the end of chick rearing to fledging. There will be some inter-annual variability in timings and the dates provided in the table will not always represent (and therefore include) extremes of variability.  The dates are divided into two-week blocks so that each month is composed of two, two-week blocks of time. This is to cover latitudinal variation across Scotland. The data have been taken from various respected sources including Birds of the Western Palaearctic (BWP), but modified as appropriate, based on knowledge and experience of NatureScot ornithology staff. There is a latitudinal variation in species’ breeding phenology as sites further north within Scotland start breeding later compared to southerly sites. This may vary by up to ten days between the far north and far south of Scotland.

5. Guidance for managers and contractors working on peatland restoration

5.1 Default position

On a precautionary basis, working on a site beyond the end of March and before end of July/early August risks disturbing breeding birds when they have an active nest or they are with dependent young.  Exceptionally, some species may still be breeding in late August or early September (e.g. some late-nesting red-throated divers).

To reduce the risk of disturbance, it is recommended that, as a default approach, restoration work should be programmed to occur outside the main bird breeding season (April - July).

Despite the recommended default approach, a blanket exclusion for restoration work undertaken during the bird breeding season is not necessary and there will be circumstances where restoration work should be possible. This should only be done when active consideration of the likely consequences for breeding birds has been undertaken and can be demonstrated that work will avoid affecting sensitive species.

5.2 Can I work during the breeding season?

There are two situations where work can proceed during the breeding season:

• Circumstances where there are no sensitive species present on site; or
• Where work can safely proceed on a site or part of a site, beyond accepted disturbance distances (see later).

5.3 Check-list for working on peatlands during the breeding season

Understanding the constraint(s) that breeding birds pose before undertaking restoration work on peatland sites in the breeding season should be an integral part of the project planning process.

1. Work on any protected area will require consultation with NatureScot where there are breeding bird species that qualify as features of the protected site. Where birds breed outside the site but are within connectivity distance of the protected area, then they are considered to be functionally part of the protected area. A Habitats Regulations Appraisal (HRA) may be needed for a Special Protection Area (SPA) and a written consent may be needed for a Site of Special Scientific Interest (SSSI), depending on the site’s listed Operations Requiring Consent. For many sites, NatureScot will hold species information, or can identify appropriate sources of information.
    
2. As a generalisation, you should avoid working on any site with known occupation by Schedule 1 breeding birds (see above). Note that exceptions are possible where work can be carried out at a safe distance from these species (see 7 below).
    

3. Where no information is readily available from NatureScot or RSPB, a desk study should be undertaken using published sources. Reliable sources of information are detailed in Annex 1.

4. In the absence of any information, a site walk-over survey by an experienced ornithologist must be considered, before any work is undertaken. We will also assess whether it might be advantageous for surveys to be undertaken for any project that is estimated to take more than approximately 8-16 weeks (depending on locations/altitude and/or other factors that may be limiting access), i.e. where there is a significant likelihood that work cannot be completed in a single operation outside of the bird breeding season. We will also instruct surveys for any ongoing projects that look to be running over schedule against the start of the bird breeding season.

5. An appropriate method is that devised by Andy Brown and Kevin Shepherd, generally known as a Brown & Shepherd survey. Details of a suitably modified Brown & Shepherd survey are attached as Annex 2 (also see Brown, A. F. and Shepherd, K. B. (1993) as per full reference in Annex 1). Results of all investigations should be recorded in writing in case any evidence is required of your considered process.

6. Sites that have been afforested (usually with non-native conifers), survey requirements will not be met with Brown & Shepherd survey methods. While there are likely to be fewer sensitive species, species such as merlin, hen harrier, goshawk and tawny owl may be present. Records from the local Raptor Study Group may be available (see Annex 1). Survey methods for raptors are set out in Hardey et al. (this can be found in the Publications section in Annex 1). Survey work for raptors require skilled, experienced observers

7. Where it is determined from either survey work or a desk-based study, that Schedule 1 or Annex 1 species of the EU Birds Directive are not present, then management work may proceed, but with the exercise of caution. Restoration work cannot continue into the start of the breeding bird season without the first two ornithological surveys having been completed and a written Species Protection Plan (SPP) completed if any breeding activity is found. Surveys need to be carried out two weeks apart. This is because different species differ in when they arrive on site and start breeding.  Surveys too close together risk missing some key species. Should a Species Protection Plan be deemed to be required by the NatureScot Peatland ACTION Technical Co-ordination team, you will be sent a blank template to complete.  

8. Sites with protected species may be suitable for management work where location of protected species is known if suitable buffer distances can be implemented. If there is a potential for completion of restoration work to be delayed so that it would continue into the breeding bird season for the protected species, restoration work should not proceed until at least the first two appropriate ornithological surveys have been completed, as per 7. If any breeding activity is found during these surveys, a written Species Protection Plan (see 7) needs to be prepared. Disturbance buffer zones will vary between species and some individuals will be more tolerant than others. A 2022 NatureScot review of disturbance buffer zones for some species can be found in the Publications section in Annex 1). Buffer zones (as per above) should be established around known/identified nesting locations. This includes black grouse lek sites.    

9. Even after a desk study and survey it is possible that species may be discovered while work is taking place on a site. As a general rule, all restoration projects that may be granted extension of works into the breeding bird season (with an appropriate Species Protection Plan in place) will be subject to weekly site checks by an Ecological Framework Contractors or an Ecological Clerk of Works (ECoW) as well as further, regular, site checks by the responsible Peatland ACTION project officer if the work is funded through Peatland ACTION. Projects funded via other sources should look to adopt a similar approach. Having an experienced ecologist available will be a source of immediate advice.  In the case of discovery of species during works, the following protocol should be adopted (this information will also be stated in the Species Protection Plan):

• Do not proceed with work, if any bird species (especially Schedule 1 species), is continuously alarm calling (or any other alarm behaviour such as distraction displays).

• If a nest is found with eggs or dependent young, then again stop work.

• It may be possible to move work elsewhere on site, depending on where species are found.

10. It is essential that all observations and conclusions from desk study and consultations, as well as the outcomes of any ornithological surveys and SPPs, of Peatland ACTION projects are recorded, and that these are submitted to the relevant NatureScot Peatland ACTION officer within the same working week. This allows NatureScot to check that all Peatland ACTION projects adhere to the law. Projects funded via other sources should look to adopt a similar approach.

5.4 Peat pans

It has been suggested that work on small areas of bare/degraded bog (‘peat pans’) could be undertaken during the breeding seasons as these areas are likely to have little or no breeding bird interest.

However some species such as golden plover have an affinity for these areas, possibly because of food being easier to locate, so working in these areas may be problematic, if golden plover are breeding. Disturbance over a small area, adequately monitored before and during work, could overcome these issues, so restoration work on small areas could be possible.

Note also that wader broods can be very mobile once hatched so if the work is restricted in area, most breeding waders would probably move away from the disturbance and relocate to somewhere a bit quieter.  The approach might be to undertake the work after most nests have hatched, and chicks are mobile – that would probably mean a cut-off point of  mid-late June in most cases, so working in these areas from the end of June into July and August could be acceptable (again with the proviso about protected areas).

6. Annex 1 - Sources of Information

6.1 Publications

• The new BTO Breeding Atlas.  Data is shown in the Atlas at 10x10km scale.  Maps are also available from BTO MapStore
• Most county bird recording areas have more detailed published Atlases (e.g. Birds of North-East Scotland).  Records re usually shown at 10x10km scale or sometimes greater than this.
• The NBN (National Biodiversity Network) maps may be useful but they do not separate winter from breeding records and most are displayed at 10x10km scale.
• Forrester, R. and Andrews, I. (Eds.) Birds of Scotland (2007) Published by SOC. Availably digitally and in hard copy.
• Brown, A. F. and Shepherd, K. B. (1993) A method for censusing upland breeding waders. Bird Study, 40, pp. 189-195.
• Goodship, N.M. and Furness, R.W. 2022. Disturbance Distances Review: An updated literature review of disturbance distances of selected bird species. A report from MacArthur Green to NatureScot.
• Hardey, J., Crick, H., Wernham, C., Riley, H., Etheridge, B. & Thompson, D. (2013). Raptors: a field guide to survey and monitoring (3rd Edition). The Stationery Office, Edinburgh.

6.2 Organisations

• The Scottish Ornithologists’ Club SOC have county bird recorders for each recording area in Scotland.
• RSPB local offices may also be contacted for species information.
• Some areas will have Local Biological Records Centres.
• The Scottish Raptor Study Group should be a source of data on raptors (and short-eared owl). Peatland Action staff should liaise with RSG branches for best local up to date knowledge.  Please bear in mind that RSG individuals are volunteers so please give them reasonable notice for a response.
• NatureScot local offices will have some species information, especially for protected areas.

7. Annex 2

7.1 Brown & Shepherd - Modified walk-over survey

It is suggested that a methodology based on that published by Brown & Shepherd (1993) is used. Bear in mind that the so-called Brown & Shepherd methodology was (and is) designed to assess sites for site classification and the point of these surveys is that assessing relative numbers across a number of sites was and still is the prime motivator. Such surveys can therefore underestimate species numbers. This drawback is countered by undertaking multiple surveys in any one season.

Surveying sites where peatland restoration is due to take place is much less about quantifying numbers and more about presence/absence and location. This is an important distinction. Note also the Brown & Shepherd method does not work for breeding raptors, whose presence can be hard to detect on this type of survey. I will return to breeding raptors later. For most species, nest locations will not be found, so it will be species registrations that need to be plotted.

NatureScot’s recommends use of a modified (simplified) Brown & Shepherd survey methodology.  This will provide an adequate survey of breeding waders, passerines, divers and colonial birds (gulls and skuas).

Principles of a modified Brown & Shepherd Survey:

Key principles are:

Do cover the whole survey area to within about 100 m from the line of travel. This does not require the line of travel to be straight but it should aim to cover the entire area in a consistent fashion. Although time limits are set, this is due to the need to compare sites in a standardised fashion. There is no need to stick to time limits, so long as survey work is undertaken evenly across the whole site. 

Do not worry about start/end times. Most peatland birds are likely to be more active in the early morning and late evening, but most birds are still active and therefore detectable throughout the day.

Do not survey in bad weather. Bad weather means strong winds and/or rain. Birds go silent and inactive at these times. Most breeding birds will be detected by sound (calls, song etc.) rather than visually.

Do record sightings on 1:25,000 maps and use BTO (two letter) species codes – a table of these can be found on the BTO web site for BBS surveys e.g. DN for dunlin, GP for golden plover.

Do carry out surveys from late April to mid-July. In Scotland most breeding birds are not back on site until mid-end of April.  Although survey work for some species such as hen harrier should start before this, waders, divers and many passerines will not be back on territory until mid-end of April.  Surveys should start mid-April, a date that is appropriate for most commonly occurring breeding species. 

Do at least two surveys, at least two-weeks apart. Brown & Shepherd suggest two surveys. Three or even four are better, but two surveys early on will generally be sufficient.

Do not collect breeding evidence or plumage characteristics. If a bird is a present in the right habitat in the breeding season then almost by definition it will be breeding there. This assumption is good enough for this type of survey.

Do check water bodies for breeding divers. Do not search for nests, but use suitable vantage points to scan suitable lochs and lochans. Check streams and water bodies for common sandpiper and dipper. The presence of male ducks on water bodies suggests the presence of breeding females. Ducks may nest over long distances from the nearest waterbody.

Do use suitable vantage points to survey colonial species (e.g. gulls and skuas). Allow colonial species to settle. The key here is to delineate area used by these species – counts are optional.

Raptors

Brown & Shepherd surveys are not suitable for raptors, though you may record them. Conversely their absence on Brown & Shepherd surveys does not mean they are absent. As per previous advice, contact with raptor study group personnel should be made, if you are wishing to work on sites in the breeding season.  Survey methods for raptors are set out in Hardey et al.  Survey work for raptors require skilled, experienced observers.

Rare species

Some sites may host rare species (which are not raptors). Checking prior to any restoration work on site with RSPB and NatureScot local staff is strongly advised.

Rare/uncommon species include common scoter; wigeon; Slavonian grebe; wood sandpiper green sandpiper; whimbrel (Shetland, Orkney, and Western Isles only); and red-necked phalarope (Shetland/Western Isles only).

Reference

Brown, A. F. and Shepherd, K. B. (1993) A method for censusing upland breeding waders. Bird Study, 40, pp. 189-195.