PROOF OF EVIDENCE ON DORMICE OF DR ELISABETH HALLIWELL FOR THE NATURAL RESOURCES BODY FOR WALES

Transcription

1 PUBLIC INQUIRY IN THE MATTER OF THE HIGHWAYS ACT 1980 AND THE ACQUISITION OF LAND ACT 1981 AND IN THE MATTER OF: THE M4 MOTORWAY (JUNCTION 23 (EAST OF MAGOR) TO WEST OF JUNCTION 29 (CASTLETON) AND CONNECTING ROADS) AND THE M48 MOTORWAY (JUNCTION 23 (EAST OF MAGOR) CONNECTING ROAD) AND THE LONDON TO FISHGUARD TRUNK ROAD (EAST OF MAGOR TO CASTLETON)) COMPULSORY PURCHASE ORDER and- THE M4 MOTORWAY (JUNCTION 23 (EAST OF MAGOR) TO WEST OF JUNCTION 29 (CASTLETON) AND CONNECTING ROADS) AND THE M48 MOTORWAY (JUNCTION 23 (EAST OF MAGOR) CONNECTING ROAD) SCHEME and- THE M4 MOTORWAY (WEST OF MAGOR TO EAST OF CASTLETON) AND THE A48(M) MOTORWAY (WEST OF CASTLETON TO ST MELLONS) (VARIATION OF VARIOUS SCHEMES) SCHEME and- THE LONDON TO FISHGUARD TRUNK ROAD (EAST OF MAGOR TO CASTLETON) ORDER and- THE M4 MOTORWAY (JUNCTION 23 (EAST OF MAGOR) TO WEST OF JUNCTION 29 (CASTLETON) AND CONNECTING ROADS) AND THE M48 MOTORWAY (JUNCTION 23 (EAST OF MAGOR) CONNECTING ROAD) AND THE LONDON TO FISHGUARD TRUNK ROAD (EAST OF MAGOR TO CASTLETON) (SIDE ROADS) ORDER 201- PROOF OF EVIDENCE ON DORMICE OF DR ELISABETH HALLIWELL FOR THE NATURAL RESOURCES BODY FOR WALES Page 1 of 30

2 Table of Contents 1. Introduction 2. Background 3. Species and site context 4. Issues 5. Alternatives 6. Conclusion 7. References Page 2 of 30

3 1. INTRODUCTION 1.1. I am Dr Elisabeth Clare Halliwell. I am the Mammal Ecologist (Farmland and Woodland Mammals) in the Evidence Analysis Group of the Natural Resources Body for Wales (NRW). I am based at NRW s office in Bangor. I have held this position since April Prior to that, I was the Mammal Ecologist for the Countryside Council for Wales from March As Mammal Ecologist (Farmland and Woodland Mammals) I undertake and commission mammalian research and survey projects, provide scientific advice and guidance within NRW and to external partners, and represent NRW at relevant Wales and UK fora. I am responsible for mammalian conservation issues in Wales and I provide specialist advice to NRW operations staff on dormouse conservation in Wales. This includes woodland management for dormice, commenting on and contributing to high profile casework that affects dormice, advising on licensing issues and developing mitigation guidelines. I provide NRW input to UK guidance on dormice including interpretation of legislation as it affects dormice. I represent NRW on the UK Dormouse Steering Group. I have over 15 years experience giving specialist advice on dormouse conservation in Wales Prior to working for the Countryside Council for Wales I worked for the Wildlife Trusts UK office as a Local Records Support Officer (2.5 years), before which I undertook postdoctoral research at Royal Holloway University of London on pine marten Martes martes and hazel dormouse Muscardinus avellanarius (1 year). I have a BSc honours degree in Biology from the University of Southampton and a PhD for research into pine marten and red squirrel Sciurus vulgaris interactions from the University of Aberdeen This proof has been prepared on the basis of the Welsh Government (WG) s evidence as presented in the original Environmental Statement (ES) published in March 2016, the first Environmental Statement Supplement (ESS) published in September 2016 and the second ESS published in December Reference is made particularly to Appendix SS10.4 of the second ESS, the Page 3 of 30

4 Draft Hazel Dormouse Mitigation Strategy ( the draft MS, SS10.4). I have also had the opportunity to consider the Proof of Evidence of Jon Davies 1 ( the dormouse proof, [WG core document and appendices]) and where appropriate have provided NRW s response to the relevant points. 2. BACKGROUND 2.1. Relevant legislation and guidance 2.2. The hazel dormouse is a European protected species (EPS) under European Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (as amended) ( the Habitats Directive ) [WG ]. The main aim of the Habitats Directive is to promote the maintenance of biodiversity and Member States are required to take measures to ensure the restoration or maintenance of natural habitats and species of Community interest at a favourable conservation status ( FCS ). Member States are also required to introduce measures to ensure protection of those habitats and species. The hazel dormouse is also listed on Schedule 5 of the Wildlife and Countryside Act 1981 (as amended) The Habitats Directive is transposed into UK law by the Conservation of Habitats and Species Regulations 2010 (as amended) ( the Habitats Regulations ) [WG ]. The dormouse is a European protected species by regulation 40 of and Schedule 2 to the Habitats Regulations Regulation 41 of the Habitats Regulations states: (1) A person who (a) deliberately captures, injures or kills any wild animal of a European protected species, (b) deliberately disturbs wild animals of any such species, (c) deliberately takes or destroys the eggs of such an animal, or (d) damages or destroys a breeding site or resting place of such an animal, 1 Proof of Evidence Jon Davies Ecology: Dormice and Water Voles. Document reference : WG Page 4 of 30

5 is guilty of an offence. (2) For the purposes of paragraph (1)(b), disturbance of animals includes in particular any disturbance which is likely (a) to impair their ability (i) to survive, to breed or reproduce, or to rear or nurture their young, or (ii) in the case of animals of a hibernating or migratory species, to hibernate or migrate; or (b) to affect significantly the local distribution or abundance of the species to which they belong Under regulation 53 of the Habitats Regulations, a derogation from the above provisions of regulation 41 may be granted for specific purposes and subject to criteria stated in regulation 53(9): (9) The relevant licensing body must not grant a licence under this regulation unless they are satisfied (a) that there is no satisfactory alternative; and (b) that the action authorised will not be detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range NRW is the relevant licensing body in Wales for the purposes of regulation With regard to FCS, Article 1(i) of the Habitats Directive provides: (i) conservation status of a species means the sum of the influences acting on the species concerned that may affect the long-term distribution and abundance of its populations within the territory referred to in Article 2; The conservation status will be taken as favourable when: population dynamics data on the species concerned indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitats, and the natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future, and there is, and will probably continue to be, a sufficiently large habitat to maintain its populations on a long-term basis[.] Page 5 of 30

6 2.8. Thus, for European protected species, conservation status has four components: 2 population; range; habitat; and, future prospects Section 6 of the Environment (Wales) Act 2016 ( the 2016 Act ) [WG ], places a biodiversity and resilience of ecosystems duty on public authorities exercising functions in Wales. Under section 6 of the 2016 Act, a public authority must seek to maintain and enhance biodiversity in the exercise of functions in relation to Wales, and in so doing promote the resilience of ecosystems, so far as consistent with the proper exercise of those functions In the 2016 Act, biodiversity is defined as the diversity of living organisms, whether at the genetic, species or ecosystem level. 3 The 2016 Act specifies certain matters relating to the resilience of ecosystems which public authorities must take into account in complying with its duty under section 6: a public authority must take account of the resilience of ecosystems, in particular the following aspects (a) (b) (c) diversity between and within ecosystems; the connections between and within ecosystems; the scale of ecosystems; (d) the condition of ecosystems (including their structure and functioning); (e) the adaptability of ecosystems. 2 Evans D & Arvela M (2011) Assessment and reporting under Article 17 of the Habitats Directive Explanatory Notes & Guidelines for the period Final Draft, July European Topic Centre on Biological Diversity Act, section 26 Page 6 of 30

7 2.11. In the exercise of their functions, the Welsh Ministers have a further, separate duty, under section 7 of the 2016 Act, to take all reasonable steps to maintain and enhance the living organisms and types of habitat included in any list published under this section Dormouse is a species listed on the interim section 7 (species) list [NRW 2.10] Planning Policy Wales (9 th Ed. Nov 2016) [WG ] provides the national planning policy context for the consideration of protected species in the planning system in Wales Section of PPW states: The presence of a species protected under European or UK legislation is a material consideration when a local planning authority is considering a development proposal which, if carried out, would be likely to result in disturbance or harm to the species or its habitat Section of PPW states that developments are always subject to the legislation covering EPS, regardless of whether or not they are within a designated site, iterates the prerequisites for a derogation where development would contravene the protection afforded to EPS, and states: [ ]To avoid developments with planning permission subsequently not being granted derogations in relation to European protected species, planning authorities should take the above three requirements for derogation into account when considering development proposals where a European protected species is present Technical Advice Note 5: Nature Conservation and Planning (2009) ( TAN 5 ) [WG ], para states: the presence or otherwise of protected species, and the extent that they may be affected by the proposed development, is established before the planning permission is granted, otherwise all relevant material considerations may not have been addressed in making the decision. It is considered best practice that such a survey is carried out before planning application is submitted. Planning permission should not be granted subject 4 Page 7 of 30

8 to a condition that protected species are carried out and, in the event that protected species are found to be present, mitigation measures are submitted for approval. However, bearing in mind the delay and cost that may be involved, developers should not be required to undertake surveys for protected species unless there is a reasonable likelihood of them being present TAN 5 sets out guidance in respect of EPS and, at paragraph states that: it is clearly essential that planning permission is not granted without the planning authority having satisfied itself that the proposed development either would not impact adversely on any European protected species on the site or that, in its opinion, all three tests for the eventual grant of a regulation 44 licence 5 are likely to be satisfied. To do otherwise would be to risk breaching the requirements of the Habitats Directive. It would also present the very real danger that the developer of the site would be unable to make practical use of the planning permission which had been granted, because no regulation 44 licence would be forthcoming Section 3 of the Well-being of Future Generations (Wales) Act 2015 ( the 2015 Act ) [WG ] creates a well-being duty by which public bodies, including the Welsh Ministers, must carry out sustainable development. 6 The 2015 Act provides that this must include setting and publishing well-being objectives designed to maximise its contribution to achieving each of the wellbeing goals and taking all reasonable steps (in exercising its functions) to meet those objectives In the 2015 Act, sustainable development means the process of improving the economic, social, environmental and cultural well-being of Wales by taking action, in accordance with the sustainable development principle [ ] aimed at achieving the well-being goals. 8 5 Regulation 44 refers to the Conservation (Natural Habitats, &c.) Regulations 1994 which have now been replaced by the Conservation of Habitats and Species Regulations The relevant regulation is now Regulation Act, section 3(1) Act, section 3(2) Act, section 2 Page 8 of 30

9 2.20. Section 4 of the 2015 Act sets out well-being goals amongst which is A resilient Wales, which is defined in the 2015 Act as: A nation which maintains and enhances a biodiverse natural environment with healthy functioning ecosystems that support social, economic and ecological resilience and the capacity to adapt to change (for example climate change) In November 2016, the Welsh Ministers published their Well-being Objectives [WG Core Document, ] Guidance on best practice techniques for dormouse sites affected by development is given in the Dormouse Conservation Handbook The Design Manual for Roads and Bridges (DMRB) 10 [NRW 4.3] contains a section giving advice in relation to dormice. This document is now 16 years old and much of the detail is now outmoded. However, reference is made to the DMRB where it provides clear and useful enunciation of principle Introduction to dormouse ecology The dormouse is a small nocturnal mammal traditionally considered to be most closely associated with ancient woodland, particularly hazel (Corylus avellana) coppice. More recently, it has been recognised that dormouse populations are also found in a number of other habitats such as hedgerows, scrub and some conifer woodlands Dormice have a specialised diet, feeding primarily on flowers, insects, fruit and nuts 9, with many of these food items only available for a limited period of time. This, together with the fact that dormice are mainly arboreal and avoid travelling on the ground, means that they require a well-structured habitat with a diverse a range of plant species from which to forage throughout their active 9 Bright P, Morris P, Mitchell-Jones T (2006) Dormouse Conservation Handbook. Second Edition. Natural England Design Manual for Roads and Bridges (2001). Nature conservation management advice in relation to dormice. Volume 10 Environmental Design and Management, Section 4 Nature Conservation, Part 5. HA 97/01 Page 9 of 30

10 season. Dormice will enter a torpid state in poor weather conditions and hibernate on the ground during winter. Survival during hibernation depends on individuals gaining sufficient weight in autumn Dormice are naturally found in low densities, particularly when compared with other small mammals such as wood mice (Apodemus sylvaticus) and bank voles (Myodes glareolus). 11 Female dormice produce one or two litters of four to five young per year (compared to up to six litters per year for wood mice). These low densities and slow breeding rates, make dormouse populations vulnerable to adverse events such as disturbance, habitat loss and poor weather conditions as numbers cannot rapidly recover when conditions improve Dormice are widely distributed across Wales, and are found in all counties with the exception of Anglesey. However dormice have a patchy distribution (see Figure 1, below) and are not considered to be common anywhere in Wales Dormouse populations in England and Wales have been undergoing substantial decline in recent years. Analysis of data from the National Dormouse Monitoring Programme has shown a significant decline since the mid-1990s, with counts of dormice falling by 38% since 2000, a rate of decline equivalent to a fall of 55% over 25 years Factors considered to be causing the decline in dormouse populations include changes in woodland and hedgerow management leading to a poorer habitat quality, loss and fragmentation of woodlands, loss of hedgerows and climate change Bright P, Morris P, Mitchell-Jones T (2006) Dormouse Conservation Handbook. Table 2 12 Bright PW, Morris PA (1996) Why are dormice rare? A case study in conservation biology. Mammal Review 26: Wembridge D, Al-Fulaij N, Langton S (2016). The State of Britain s Dormice People s Trust for Endangered Species pdf 14 Bright P, Morris P, Mitchell-Jones T (2006) Dormouse Conservation Handbook. Second Edition. Page 10 of 30

11 2.31. Article 17 of the Habitats Directive requires Member States to report on the implementation of the Directive every six years. The third UK report in concluded that the status of the dormouse population was bad declining, future prospects were inadequate and the overall assessment of conservation status was bad declining. 15 Third Report by the United Kingdom under Article 17 on the implementation of the Directive from January 2007 to December 2012 Conservation status assessment for Species: S Common dormouse (Muscardinus avellanarius). Page 11 of 30

12 Figure 1 Dormouse distribution in Wales ( ) based on National Biodiversity Network. Records at 2km resolution downloaded on 26/09/16. Page 12 of 30

13 2.32. There is therefore significant and justified concern regarding the status of the dormouse in Wales with conservation action, originally under the auspices of the UK Biodiversity Action Plan, working to improve the management of woodlands and hedgerows for the benefit of dormice and to reduce the impact of fragmentation. 3. SPECIES AND SITE CONTEXT 3.1. In summary, the ES and the draft MS report that, following surveys by the WG s ecological consultants, dormice have been found at three locations to be affected by the construction of the proposed M4 Corridor Around Newport ( the scheme ): around junction 29 at Castleton and New Park Farm; at the eastern end around north and east of Magor; and, south of Tata Steel [ES, ; WG , ] It is proposed, as part of the scheme, that vegetation occupied by dormice will be removed in all of the above locations. It is further proposed that dormice in the Castleton/New Park Farm area [SS10.4, D.1.18], the location with the largest habitat loss, will be trapped and removed The DMRB describes the dormouse as an edge species requiring a diverse, welldeveloped shrub layer 16. Such habitat is present on roadside verges and, therefore, verges may contribute significantly to supporting local populations and provide an important corridor connecting to other areas of habitat Dormice were found by WG ecologists during the widening of the M4 in 2007 between junctions 29 and 32 to the west of Castleton [SS10.4, B.1.2]. High 16 Design Manual for Roads and Bridges (2001). Nature conservation management advice in relation to dormice. Volume 10 Environmental Design and Management, Section 4 Nature Conservation, Part 5. HA 97/01 Page 13 of 30

14 densities of dormice have been found in roadside habitats in other locations such as the M2 widening in Kent 17 and the A449 road improvements in the county of Newport The potential scale of the impact of the scheme in respect of dormice is larger than any other development scheme previously licensed in Wales. In so far as I am aware, no other scheme in the UK has required the removal of such a large area of dormouse habitat, proposed to translocate such a large number of dormice or proposed to hold dormice in captivity prior to release into an alternative receptor site. 4. ISSUES 4.1. The ES states that the scheme would result in the removal of around 36 hectares (ha) of woodland in Castleton and Magor [ES , although no information is provided on the habitat loss at Tata Steel]. The draft MS gives the area of woodland and scrub habitat used by dormice to be removed as ha [SS10.4 D.2.4] together with 5.5 km of hedgerow [SS10.4 Table 5]. Table 1 of the dormouse proof gives different figures and identifies a total of ha of woodland and scrub and 5.4 km of hedgerow. However, Table 1 does not include the 6.25 ha of habitat at the M4/M48 junction identified in D of the draft MS. By adding this habitat to the areas given in Table 1 it would appear that the total dormouse habitat loss will comprise ha of woodland and scrub and over 5km of hedgerow Impacts of the scheme on the local dormouse population will arise from, for example, loss of habitat to support the local population, risk of injury and killing 17 Cresswell W, Wray S (2005) Mitigation for dormice and their ancient woodland habitat alongside a motorway corridor. In: ICOET 2005 Proceedings pp Cresswell W, Dean M, Downs N, Wells D, Wouters Ali (2008). Mitigating habitat loss and fragmentation, and translocating individual dormice: a case study. Presentation to the International Dormouse Conference, Somerset Page 14 of 30

15 of dormice during clearance of habitat, severance of connectivity of remaining habitats and increased risk of mortality post construction NRW responded to the published draft Orders and ES on the 4 th May and to the ES Supplement published in December 2016 on 31 st January In the context of dormice, NRW objected to the scheme, advising of significant concerns regarding the proposed dormouse strategy and requested further information. NRW stated that based on the information presented in the ES NRW would not be able to conclude there would be no detriment to the maintenance of the FCS of dormice as required prior to the granting of a derogation under regulation 53(9) of the Habitats Regulations 19. In responding to the second ESS NRW 20 maintained this position on the basis that the published dormouse mitigation strategy did not adequately set out how the proposals will ensure no detriment to the maintenance of the FCS of dormice The ES concluded that when taking into account the extent of the replacement habitat but prior to additional mitigation, there will be a major adverse effect on the local dormouse population in the short/medium term with effects of moderate or large significance from the scheme land take [ES ]. In the long term impacts are assessed as moderate adverse with moderate significance [ES ] The ES goes on to state that additional mitigation in the form of translocating the affected dormice to a favourable receptor site or holding them in captivity and returning them to replacement planting in due course, would reduce effects to minor adverse of slight significance in the short and medium term [ES ] or potentially beneficial in the long term [ES ]. 19 NRW letter to Welsh Government response to: Draft orders under the Highways Act 1980 concerning the proposed M4 Corridor Around Newport dated 4 May NRW letter to Welsh Government response to: The M4 Motorway (junction 23 east of Magor to west of Junction 29 Castleton and connecting roads) and the M48 Motorway (junction 23 east of Magor connecting road December 2016 Environmental Statement Supplement dated 31 January Page 15 of 30

16 4.7. NRW considers that the ES and draft dormouse MS have not adequately demonstrated that the identified major adverse impacts on dormice from habitat loss will be reduced and the scheme will be potentially beneficial in the long term as result of the proposed additional mitigation noted above in 4.6 [ES ] We also consider that it has not been demonstrated that there will no detriment to the maintenance of the FCS of the affected dormouse population as a result of the scheme, as required by regulation 53(9) of the Habitats Regulations Our concerns particularly relate to understanding the exact extent of habitat utilised by dormice that will be lost to the scheme, the proposed clearance strategy, the proposed dormouse receptor site and replacement dormouse habitat. Each of these issues will be considered in turn Understanding the extent and size of the affected dormouse habitat and population estimates Assessment of the potential impacts of a development scheme on a protected species and the adequacy of proposed mitigation techniques relies on an understanding of the extent and size of the affected population and the habitat it uses. NRW is concerned that not all of the potential dormouse habitat loss arising from the scheme and hence the number of dormice likely to be affected has been fully assessed and documented For the scheme, the process of gathering environmental information, including evidence as to the presence of dormice in the affected areas of the scheme, relied on surveys by WG ecologists using nest tubes and searches for hazelnuts chewed by dormice during 2014, 2015 and 2016 at selected sites across the scheme. NRW acknowledges that significant effort has been put into these surveys Dormice were found to be present in three separate locations: Page 16 of 30

17 in and around junction 29 at the Castleton interchange; south of Tata Steel; and, at Magor in the east The draft MS updated the information in the ES and reported that evidence of dormice had been found in additional areas in 2016 including within a motorway island of the M4/M48 junction near Magor [SS10.4 B.7.29] Table 5 of the draft MS summarises dormouse habitat loss and estimates dormouse population sizes in the affected areas and a similar table is given in Table 1 of the dormouse proof. The title of Figure 6 in the draft MS, referred to in Table 5, suggests that the figure shows dormouse habitat loss but it does not identify which habitat blocks are considered as dormouse habitat for the purposes of the mitigation strategy. This lack of understanding is further compounded by the variation in habitat loss totals quoted in different documents as noted in paragraph 4.1 above Without maps specifically identifying which habitat blocks have been included in the impact assessment it is not possible to determine whether the full extent of potential loss of dormouse habitat arising from the scheme has been included in the impact assessment and mitigation proposals. This particularly relates to habitat blocks where it has not been possible to complete nest tube surveys and areas of suitable habitat connected to other habitat known to be occupied by dormice. As well as informing the mitigation strategy this will have implications for the estimate of the number of dormice likely to be affected as given in Table 5 (draft MS)/Table 1 (dormouse proof) The estimate of the number of dormice affected will also depend on the average population densities used and I acknowledge that Table 5 utilises a range from 1 to 5 adults/ha based on average spring densities. The draft MS estimated dormice would be affected by the scheme although this has 21 ES Volume 3: Appendix Hazel Dormouse Survey 2015 Page 17 of 30

18 since been updated in Table 1 of the dormouse proof to In his proof of evidence, Mr Davies suggested the likely figure will be around 100 dormice [WG , 4.2.2] Whilst NRW recognises that it is difficult to be certain of the likely densities of dormice, experience from previous schemes such as the A2/M2 widening in Kent, have found dormouse densities in road verge habitat can be higher, with an average of 10 individuals per hectare and locally up to 30 per hectare It should also be noted that higher dormouse densities are found in late summer/autumn due to the presence of young born during that year. The draft MS states that clearance will take place between May and October/November and so it is likely that significantly more dormouse will be encountered during clearance in later months It is therefore possible that considerably more than 100 dormice will be encountered during the habitat clearance. The likely numbers of dormice present in the affected habitat has implications for the impact assessment and translocation proposals and NRW considers that the draft MS has not set out sufficient contingencies should higher numbers of animals be captured (see 4.12 below) Dormouse habitat clearance strategy The removal of vegetation occupied by dormice risks killing or causing injury to individual dormice. Section D.1 of the draft MS describes site clearance using either displacement or translocation techniques. It is proposed that trapping and translocation is used at New Park Farm/Castleton, Tata Steelworks and at the M4/M48 junction. However, the dormouse proof of evidence states that translocation will only take place at the western (New Park Farm/Castleton) end of the scheme [WG , 5.3.3]. 22 Cresswell W, Wray S (2005) Mitigation for dormice and their ancient woodland habitat alongside a motorway corridor. In: ICOET 2005 Proceedings pp Page 18 of 30

19 NRW is concerned that it has not been demonstrated that displacement is possible in all of the proposed locations and the site clearance strategy lacks clarity over the approach to be taken. NRW is therefore not confident that clearance works can be undertaken in a manner which will minimise the risk of killing or causing injury to dormice Dormouse translocation and release into a receptor site The draft MS proposes a number of options for the release of trapped dormice. This includes immediate translocation into adjacent habitat or into a receptor site (Coed Mawr), or holding dormice at Bristol Zoo for captive breeding for an as yet unspecified period of time prior to release at Coed Mawr or into the scheme planting [SS10.4, D.1.79-D.1.86]. However, the dormouse proof suggests that following advice it is now considered that direct translocation into a receptor site would be preferable to captive breeding The capture and translocation of dormice from affected habitats to a receptor site as mitigation for a development scheme is the least preferred method of mitigation due to the associated risks and impacts with removing animals and establishing them at a new site. It is described as an approach of last resort in the Dormouse Conservation Handbook 23 and the DMRB states that translocation should be seen as a last option The dormouse proof estimates around 100 adult dormice could be affected by the scheme with adults estimated to be in the Castleton/New Park Farm area alone. Based on this estimate, and notwithstanding my view that the numbers affected could be higher than this, a translocation of dormice has never previously been attempted on this scale in Wales and as far as I am aware in the UK As noted previously, there is a possibility that the verge habitat to be cleared could contain higher than average densities of dormice. NRW 23 Bright et al 2006 Dormouse Conservation Handbook. Natural England, pages 6, 47 and Design Manual for Roads and Bridges (2001). Nature conservation management advice in relation to dormice, paragraph Page 19 of 30

20 considers that the draft MS has not set out sufficient contingencies should higher numbers of animals be captured The proposed receptor site for dormice, Coed Mawr is a 90 ha NRW managed woodland some 5 km distant from the Castleton/New Park Farm area. Coed Mawr is a predominately conifer woodland and 40% of the woodland is due to be felled in the next five years The draft MS includes an assessment of the habitats at Coed Mawr and concludes that the results confirm the presence of a diversity of age structures and habitat types across the wood, including habitats of potential value to dormice [SS10.4 B.7.32]. The draft MS refers to measures that could be used to enhance the woodland for dormice but a management plan has yet to be prepared It is NRW s view that it has not been demonstrated that Coed Mawr has, or will have within the timescales required for the scheme, a sufficient quantity of good quality habitat to support a successful dormouse translocation. This is particularly relevant given the statement in the dormouse proof that a direct translocation into a receptor site without holding dormice in captivity would be preferable NRW is also concerned regarding the risks associated with attempting to establish a dormouse population at a new receptor site such as Coed Mawr. The Natural England Species Recovery Programme for hazel dormouse has undertaken at least 18 reintroductions of captive bred dormice to areas in England where they had previously gone extinct. A review of the reintroduction programme 25 concluded that, whilst releases were generally successful in the short term, a third of the reintroductions were no longer successful in the medium term and in the long term (over 10 years) only two of nine sites were judged to have succeeded in that populations had spread from the original 25 Chanin P (2014) The Dormouse Reintroduction Programme: A Review. Natural England Commissioned Report NECR Page 20 of 30

21 release site and four (nearly half) had either failed or populations were declining. No definitive causes of the lack of success were identified but issues discussed include habitat quality, habitat management, size of the release site, climate and the number of animals released As an alternative option to releasing dormice at a receptor site away from the site of impact, the ES [ES ] and draft MS [SS10.4 D.1.86] propose that dormice could be held in captivity until landscape planting associated with the scheme has reached a suitable condition to support a dormouse population. As far as NRW is aware, this approach has never previously been attempted in the UK. In NRW s experience, newly planted habitat can take at least ten years to reach a condition where it might be suitable to support a dormouse population, which would result in an interval of at least thirteen years between habitat clearance and replacement planting being suitable for the introduction of dormice (see below). This period is beyond the typical lifespan of a dormouse (ie around 2-4 years 26 ), and thus the released dormice will be many generations removed from the original dormice trapped NRW considers that the proposal to utilise Coed Mawr as a receptor site for dormice, or to release dormice into the scheme new planting once suitable, has not adequately considered the associated risks and uncertainties and that this does not currently represent a viable component of the mitigation strategy. As such NRW does not agree with of the ES that the relocation of dormice to a receptor site or for them to be returned to replacement planting areas would address the adverse impact of land take identified Replacement planting for loss of dormouse habitat As already noted, the construction of the scheme will result in the loss of significant areas of dormouse habitat. The establishment of replacement habitat at the earliest opportunity is key to successfully mitigating impacts 26 Bird S et al (2012) A comparison of demographic statistics between two populations of Muscardinus avellanarius, in the north of its UK range. Peckiana 8: Page 21 of 30

22 arising from development schemes. The Dormouse Conservation Handbook states that planting should begin as early as possible, preferably before other operations begin and not after clearance has been completed Transplanting hazel stools and other shrub material into habitat mitigation areas can significantly reduce the time for new habitat to become suitable for use by dormice. NRW acknowledges that the draft MS refers to the reuse of uprooted trees and scrub where practical [SS10.4 D.2.3.8] and the possibility of early planting in some locations [SS10.4 D ]. NRW also acknowledges that the Pre-Construction Environmental Management Plan (Pre-CEMP) includes a commitment to retain existing vegetation where possible and to reestablish vegetation within the highway boundary early [Pre-CEMP 6.4.1]. However, NRW considers that the information published in the ES and the draft MS provides no certainty around whether this will be possible and falls short of that required to be confident that habitat will be replaced at the earliest possible opportunity and will help mitigate the impacts on the remnant dormouse population It seems likely that the majority of replacement planting will not take place until after the completion of construction [SS10.4, D ]. Consequently, in the absence of significant areas of habitat translocation, NRW considers that there could be an interval of at least thirteen years following clearance before replacement habitat is in a suitable condition to support a dormouse population, the actual length of time depending on factors such as the type of material planted and the conditions of the site During the time when replacement habitat is not suitable for use, a substantial part of the local dormouse population would be absent and the remaining population would be more isolated. This would increase the risk of local extinctions and the likelihood that dormice would not re-populate the new habitats created. Recolonisation of new habitats will also be hampered by the 27 Bright P et al 2006 Dormouse Conservation Handbook. Natural England. Section Page 22 of 30

23 fact that the natural spread of dormice populations is a relatively slow process, as noted in B.8.12 of the draft MS In the western section of the scheme, where the greatest evidence of dormice has been found, the draft MS suggests that there would be a 327% increase in dormouse habitat [SS10.4, D.2.4.2], with ha of new planting replacing ha of lost dormouse habitat (a rate of replacement actually equivalent to a 227% increase). However, 26 ha of the planting is in the Berryhill Farm area, a location where dormice are not currently present and which the draft MS considers may be due to a lack of suitable habitat connections [SS10.4 B.7.2]. Of this, 18 ha will be east of new road adding further to its isolation. D.1.83 of the draft MS acknowledges that the existing M4 already acts a significant barrier and it would be expected that the new M4 would be a similar barrier Paragraph D and Figure 7 of the draft MS note that dry culverts would provide safe road crossing points but there no evidence is provided that dormice would be likely to utilise such culverts. Consequently NRW considers that not all of the scheme planting identified in the draft MS as being of value to dormice would be directly accessible and so its value as replacement dormouse habitat cannot be assessed NRW is also concerned regarding the extent of habitat replacement in the Tata Steelworks area. Table 1 of the dormouse proof identifies a total of ha and 1.9 km of habitat loss. However, D of the draft MS states that there would be just 2.27 ha of new woodland planting. In NRW s opinion this is an inadequate level of replacement habitat It is NRW s opinion that it is not apparent that the scheme has been designed with the hazel dormouse in mind. Insufficient consideration has been given to alternative mitigation strategies, as advised in NRW s response to the Page 23 of 30

24 publication of the ES 28. These measures could include off line habitat improvement of woodland and hedgerows and advance planting. In NRW s response to the publication of the ES 28, NRW advised that planting and management of potential Compulsory Purchase Order land adjacent to the scheme is considered to enable new habitat to be planted at the earliest opportunity. This would be in line with recommendations in the DMRB which states: substantial efforts must be made at the earliest opportunity to increase the habitat quantity and quality, thus minimising unnecessary impacts.. The use of land purchase for mitigation should be considered at the earliest possible phase to reduce this impact Assessment of no detriment to the maintenance of the population at a favourable conservation status As a European protected species, regulation 53(9) of the Habitats Regulations (2010) requires that a derogation for any action which may commit an offence against dormice under regulation 41 arising from the construction of the scheme may only be granted if it can be demonstrated that: the action authorised will not be detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range As noted in above, the current conservation status of the dormouse in England and Wales is considered to be poor. Monitoring results indicate that populations are declining and the most recent Article 17 report concluded that overall assessment for dormice in the UK was bad declining. 28 NRW letter to Welsh Government response to: Draft orders under the Highways Act 1980 concerning the proposed M4 Corridor Around Newport dated 4 May Design Manual for Roads and Bridges (2001). Nature conservation management advice in relation to dormice, paragraph 2.5. Page 24 of 30

25 4.18. It is NRW s opinion that the ES and draft MS have so far failed to demonstrate that there would be no detriment to the maintenance of dormice at a favourable conservation status arising from the construction of the scheme for the following reasons: Population habitat clearance arising from the scheme will necessitate the trapping and removal of a significant number of adult dormice (and most likely young) from the affected areas. Replacement habitat to be provided in the area is unlikely to be in a suitable condition to support a dormouse population for at least ten years and it is likely to take a significant further period before all of the new habitat is colonised by dormice. There will therefore be a prolonged and sustained reduction in the size of the local population with an undetermined period before the population may recover to pre-construction levels. It has not been demonstrated that the proposal to use Coed Mawr as a dormouse receptor site will mitigate the population reduction at the site of impact. It has not been shown that there is, or will be, habitat of sufficient quality at Coed Mawr to support a dormouse translocation programme. If suitable habitat were to be available, successful establishment of a dormouse population is not guaranteed as demonstrated by the dormouse reintroduction programme in England. And, if a population is established at Coed Mawr, it is likely to be many more years before it reaches a level where dormice are dispersing from the site. It has also been proposed that captive bred dormice could be released into remnant habitat immediately adjacent to the scheme if numbers are found to have declined, and/or into replacement habitat once in suitable condition. Such releases are not guaranteed to succeed and may not prevent declines in remnant habitat until replacement planting is suitable for use, due to habitat fragmentation and time taken for new habitat to establish to a suitable condition. Page 25 of 30

26 Range the three locations where dormice have been found across the scheme are all on the southern edge of the range of the dormouse in Wales. Research has found that increasing fragmentation and isolation of habitat creates greater risk of local extinctions in dormouse populations as movement between habitat patches is hindered. 30 In the case of the M4CaN, the removal of animals from the local population, habitat loss and fragmentation and the significant delay in the availability of replacement habitat being in a suitable condition for use by dormice, creates an increased threat to remnant dormouse populations. If local extinctions were to take place, particularly to the south of the existing M4, this would result in a local reduction in range. Habitat NRW acknowledges that in the long term there will be replacement dormouse habitat at the sites of impact. However, no timescales are given in the ES or draft MS for when the replacement habitat is likely to be in a suitable condition to support a dormouse population. In NRW s opinion this could be beyond 13 years post clearance. The proposed 5-year annual monitoring of habitat establishment is inadequate and a far longer period is necessary. Future prospects the future prospects of the dormouse populations affected by the scheme will depend not only on the successful implementation of adequate mitigation measures, but also the establishment of long term management of the replacement habitat. NRW recognises that there is a commitment to provide this, but no details have been given. 5. ALTERNATIVES 5.1. NRW has focussed on assessing the impact of the proposal on the dormouse population. With regard to dormouse, NRW has not, within the constraints of time and resources available, been able to undertake a comparable 30 Bright PW, Mitchell P, Morris PA (1994). Dormouse distribution: survey techniques, insular ecology and selection of site for conservation. J. Appl. Ecology 31: Page 26 of 30

27 assessment for the Blue Route or any other suggested alternatives. Consequently, NRW advances no view in relation to dormouse on alternatives to the proposed scheme. 6. CONCLUSIONS 6.1. The Welsh Government s ecological consultants have concluded that the removal of significant areas of woodland and hedgerow from the land take and taking into account the extent of replacement planting would result in a major adverse effect on the local hazel dormouse population in the short/medium term with effects of moderate or large significance [ES ]. NRW agrees with this conclusion However, NRW does not agree that the additional mitigation as proposed would be sufficient to reduce these impacts for the following reasons: It is not clear that the habitat clearance methodology will be adequate to reduce the risk of killing or causing injury to dormice No timescales are given for when replacement habitat will be planted and when it is then likely to be suitable to support a dormouse population. It is my opinion that there could be an interval of at least 13 years after clearance The ES has not adequately considered the impact of habitat loss together with the absence of any advance planting or offline habitat management, on the remaining dormouse population at the affected sites The proposal to relocate captured dormice to a receptor site has not considered the risks and uncertainties associated with dormouse reintroductions and insufficient information has been provided to demonstrate that the proposed site, Coed Mawr, is suitable for the establishment of the translocated dormice. Page 27 of 30

28 The alternative approach, to hold dormice in captivity until they can be returned to the replacement habitat once suitable, has never previously been attempted in the UK The information provided in the ES is not adequate to demonstrate that the proposed approach will mitigate the impacts on hazel dormouse populations arising from the construction of the M4 Corridor around Newport scheme. Insufficient consideration has been given to the risks and uncertainties and the mitigation information as presented in the ES would be insufficient to meet the FCS test as required under regulation 53 of the Habitats Regulations. As noted above, NRW considers that the evidence demonstrating these matters should be presented before the Minister makes or approves the Orders under the M4 CaN scheme The hazel dormouse is a species on the interim list for the purposes of section 7 of the 2016 Act. In NRW s opinion, the evidence presented, including the information provided in the ES, is not adequate to demonstrate that the proposals (including mitigation) for the M4 CaN scheme would constitute reasonable steps to enhance and maintain hazel dormouse populations affected by the construction of the M4 Corridor around Newport scheme. DECLARATION I confirm that the facts and matters referred to in this proof of evidence are true to the best of my knowledge and belief. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer. Signed: Dated: 7 th February 2017 Page 28 of 30

29 7. REFERENCES 7.1. Evans D & Arvela M (2011) Assessment and reporting under Article 17 of the Habitats Directive Explanatory Notes & Guidelines for the period Final Draft, July European Topic Centre on Biological Diversity. [NRW 4.1] 7.2. Bright P, Morris P, Mitchell-Jones T (2006) Dormouse Conservation Handbook. Second Edition. Natural England. [NRW 4.2] Handbook.pdf 7.3. Design Manual for Roads and Bridges (2001). Nature conservation management advice in relation to dormice. Volume 10 Environmental Design and Management, Section 4 Nature Conservation, Part 5. HA 97/01 [NRW 4.3] Bright PW, Morris PA (1996) Why are dormice rare? A case study in conservation biology. Mammal Review 26: [NRW 4.4] 7.5. Wembridge D, Al-Fulaij N, Langton S (2016). The State of Britain s Dormice People s Trust for Endangered Species. [NRW 4.5] pdf 7.6. Third Report by the United Kingdom under Article 17 on the implementation of the Directive from January 2007 to December 2012 Conservation status assessment for Species: S Common dormouse (Muscardinus avellanarius). [NRW 4.6] Cresswell W, Wray S (2005) Mitigation for dormice and their ancient woodland habitat alongside a motorway corridor. In: ICOET 2005 Proceedings pp [NRW 4.7] Cresswell W, Dean M, Downs N, Wells D, Wouters Ali (2008). Mitigating habitat loss and fragmentation, and translocating individual dormice: a case study. Presentation to the International Dormouse Conference, Somerset [NRW 4.8] 7.9. NRW letter to Welsh Government response to: Draft orders under the Highways Act 1980 concerning the proposed M4 Corridor Around Newport dated 4 May [NRW 2.7] NRW letter to Welsh Government response to: The M4 Motorway (junction 23 east of Magor to west of Junction 29 Castleton and connecting roads) and the M48 Motorway (junction 23 east of Magor Page 29 of 30