The Eurasian Beaver granted further legal protection in England from 1 October 2022: what this means for ecologists and developers

Summary 

From 1 October 2022, the Eurasian Beaver will be afforded further legal protection in England as a European Protected Species (EPS) under changes to the Conservation of Habitats and Species Regulations 2017 (Habitats Regulations). The Eurasian Beaver will also receive further legal protection through some changes to the Wildlife and Countryside Act 1981 (WCA 1981). These changes are both being made pursuant to The Beavers (England) Order 2022 No. 858.

Background on beavers

The Eurasian Beaver (Castor fiber) became extinct in the UK over 400 years ago but has recently been reintroduced to England and elsewhere in the UK. Reintroduction of Eurasian Beavers in the UK has included both releases into enclosures and also wild releases, such as The Scottish Beaver Trial (which released Beavers into Knapdale). In Scotland, however, the Scottish Government announced legislation in 2019 which granted the species legal protection as an EPS.

In England, a similar successful trial (the River Otter Beaver Trial) took place, which resulted from the discovery of beavers living wild in East Devon. As a result of further reintroduction projects, beavers are now found in large enclosures in locations in England such as Dorset, Cheshire, Derbyshire, Kent, Cornwall, Cumbria, Essex, and Nottingham.(1) In addition to the wild-living beaver population in East Devon, DEFRA suggests that it is likely that wild beavers are present around the River Tamar in Devon, the River Stour in Kent, the River Avon and River Brue in Somerset and Wiltshire, and Little Dart in Devon.(2) These beavers may have been unlawfully released, escaped from enclosures, or may be descendants of such beavers.

In Wales, the Welsh Beaver Project has also reintroduced beavers into an enclosure at Montgomeryshire Wildlife Trusts, Cors Dyfi nature reserve.

Beavers are beneficial to the environment. They can improve water quality, reduce the risk of flooding and drought, increase biodiversity and create more resilient landscapes.(3) Beavers also dig burrows and channels into banks of water bodies, fell trees and build lodges and dams, which may however, cause flooding to adjacent land, injure livestock and cause damage to crops, property or machinery.(4)

The Beavers (England) Order 2022 No. 858

In its explanatory memorandum, the government describes how the reintroduction of the Eurasian Beaver has given rise to The Beavers (England) Order 2022 No. 858, to afford the species with more suitable protection in order to meet the UK's international obligations under the Bern Convention.(5) The Eurasian Beaver is listed in Annex III of the Bern Convention, which imposes obligations on England, through the Habitats Regulations, to protect such species.

Protection of the Eurasian Beaver in England and Wales prior to the Order

Prior to The Beavers (England) Order 2022 No. 858, under the Habitats Regulations in England and Wales, it was an offence to be in possession of or to control, to transport, to sell or exchange, or to offer for sale or exchange a Eurasian Beaver (or part of the animal, or the animal from which the thing in question is derived) unless it was from an excluded population in Estonia, Finland, Latvia, Lithuania, Poland and Sweden (Schedule 3, Regulations 43(3) and 44(8)). As such, the ordinary protections afforded to EPS animals under Regulation 43 was not available to beavers.

In addition, the Eurasian (“European”) Beaver is listed in Schedule 6ZA(6) of the Wildlife and Countryside Act 1981, which alongside section 11(7) of the Act, places restrictions on certain methods that could be used to kill or take a Eurasian Beaver. This protection for beavers nevertheless remains following the entry into force of the Order.

The Eurasian Beaver was also listed in Part 1B(8) of Schedule 9 WCA 1981 (“Animals no longer normally present”), which had the effect that a licence was required for the release of such species into the wild (see section 14 WCA 1981) and that the species could be subject to species control agreements or orders (see Schedule 9A WCA 1981).

There are, of course, various defences available under the legislation to the offences referred to above.

The Eurasian Beaver was not, and still is not as a result of the Order, granted the same protections that are usually awarded to EPS animals under s9(4)(b) and (c) of the WCA 1981. Section 9(4)(b) WCA 1981 makes it an offence for a person, subject to the provisions of this part, to intentionally or recklessly disturb an EPS(9) whilst it is occupying a structure or place which it uses for shelter or protection, and section 9(4)(c) makes it an offence to intentionally or recklessly, subject to the provisions of this part, obstruct access to any structure or place which any such EPS uses for shelter or protection (section 9(4)(c)).

Position of the Eurasian Beaver under the Order

There are two categories of changes that are made under the Order, those to the Habitats Regulations and those to the WCA 1981.

First, The Beavers (England) Order 2022 No. 858 has amended Schedule 2 to the Habitats Regulations to ensure that Eurasian Beavers are given legal protection in England.(10) Consequently, it is now an offence to (in summary) deliberately disturb, capture, kill, or injure beavers without a licence under Regulation 43. It is now also an offence to damage or destroy breeding sites or resting places of beavers without a licence (also Regulation 43).

As Eurasian Beavers are now present in the wild in England, Schedule 9 of the Wildlife and Countryside Act 1981 has also been amended, moving the Eurasian Beaver from Part 1B of Schedule 9 (“Animals no longer normally present”) to Part 1A of Schedule 9 (“Native animals”) in relation to England. This alteration will retain the requirement to obtain a licence in order to release beavers into the wild in England, but will prevent species control agreements and orders being issued for Eurasian Beavers, which would otherwise conflict with the protected status under Schedule 2 of the Habitats Regulations.

What does this mean for ecologists?

As a result of the change in law, ecologists will need to ensure that they consider the Eurasian Beaver when conducting ecological surveys and providing ecological advice. Ecologists will need to consider not only when and where the surveys will be required, but how the surveys will be conducted.

What does this mean for developers?

Developers should be aware that the presence of the Eurasian Beaver could create a hurdle for development in a particular area, such as at present occurs with GCN and bats, for example. Although the Eurasian Beaver is largely restricted to enclosures or certain areas and therefore may not pose a particular problem (as yet) in practice, developers should be aware that wild beavers do exist, and that there have been escapes by Eurasian Beavers from re-introduction programmes. There are also “growing calls for the animals to be officially released into the wild to begin reintegrating with the nation's ecosystems”,(11) particularly at one enclosure location at Forty Hall Farm in Enfield, North London.

Crucially, developers will need to ensure that their ecologists have at least considered the Eurasian Beaver alongside those species that are normally considered when conducting ecological surveys and providing advice, and that in the unusual scenario where a criminal offence against a Eurasian Beaver could reasonably be expected, that they have obtained a licence.

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If you would like further information on this area or would like to discuss any of the above, please do not hesitate to get in touch with Penny Simpson (penny.simpson@freeths.co.uk) or Claudia Booth (claudia.booth@freeths.co.uk) from Freeths LLP's Environment Team.