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Chapter nine
CONTROLS ON ENGINEERING OPERATIONS
Directive's Requirements
9.1 The Directive requires controls on any significant adverse impacts on water status other than those previously described, and, in particular, measures to ensure that the physical characteristics of water bodies are sufficient to meet the objectives. These controls may take the form of prior authorisation or registration based on general binding rules. It is important to remember that there is flexibility in the Directive so that these activities can be controlled in a way that takes account of the important social, economic and environmental needs served by these works and operations (for example, land drainage and flood defence works, to name but a few).
Environmental Impact of engineering activities in Scottish waters
9.2 Aside from abstractions and impoundments, there are a broad range of other activities that can directly affect the physical character of watercourses. They can broadly be termed "engineering works" and include, straightening and diverting rivers and burns; the construction of river crossings and piers, jetties and harbours; flood defences; land claim in general; and, even small weirs and dams for fishery improvements. All types of land use - development, agriculture, forestry and recreation - may involve activities of this sort.
9.3 The 1998 River Habitat Quality survey recorded that 28% of sites visited in Scotland showed the adverse effects of these pressures. A 1993 survey of coastal and estuarine waters found that, while much of our coastline is largely unaffected by physical modifications, the estuaries and firths around our major cities are substantially modified. Up to 49% of the Forth Estuary was found to be modified by land claim.
9.4 Clearly it would be ineffective if effort was directed to addressing problems arising from pollution or abstraction or impoundment, if the main factor determining the ecology of a river was the fact that it had been engineered, e.g. for flood defence purposes. The integrated approach to managing the water environment the Water Framework Directive requires should ensure that resources are directed to delivering the most cost-effective delivery of environmental objectives.
Controls
9.5 Many of the general 'engineering' activities that can impact on the physical habitat of rivers, lochs, estuaries, coastal waters and groundwaters are already subject to some form of legislative control. The Town and Country Planning and environmental impact assessment regimes are the most obvious examples. The Flood Prevention and Land Drainage (Scotland) Act 1997 and the Coast Protection Act 1949 empower local authorities to build flood or sea defences to protect non agricultural land. Structures on the sea bed may be licensed under the Food and Environment Protection Act 1985. However, even taken collectively, these regimes do not satisfy the requirements of the Directive. That is not to say that these activities are currently causing wholesale environmental damage. There are many instances where developers are following on a voluntary basis good environmental practice that has been developed with advice from SEPA and planning authorities. However, a new and comprehensive system is required to comply with the Directive.
9.6 Comprehensive legislation to protect watercourses from the potentially damaging effects of 'engineering' activities is already in place in England and Wales under the Water Resources Act 1991 and the Land Drainage Act 1991 (regulated by the Environment Agency) and in Northern Ireland under the Drainage (Northern Ireland) Order 1973 (regulated by the Rivers Agency). Our preliminary views of how a Scottish regime might work are outlined below.
Scope
9.7 We suggest that a 'water engineering' regime should be put in place to cover any works that impact directly on the physical condition of a water body (fresh water or estuarine or coastal). This includes works that have a direct impact on the riparian zone of rivers and the shores of lochs, estuaries and the coast. It would also include the physical impacts of works associated with discharges.
Notification
9.8 This regime would be broad in scope, potentially covering a wide range of activities. However, the impacts of these activities and therefore the need for controls would vary greatly, according to local circumstances. Some areas are more sensitive than others to damage from such works. This makes it difficult to set meaningful thresholds. For that reason, we suggest that the starting point for the regime should be a requirement to notify the regulator of such activities. We propose that, where possible, the regulator should use existing sources to get this information. It is important to be clear that notification would not necessarily lead to controls and that many minor impacts may be excluded at the notification stage.
Information from the water user
9.9 If the regulator decides that an 'engineering' activity or a physical structure might need to be subject to controls, then the person carrying out the works or the owner or occupier of the structure would be asked to supply more information. This application might include information about the environmental impact of the works or structure and any measures they propose to put in place to mitigate its environmental effects. The regulator would need powers to issue notices to request an application in cases where no notification had taken place but it considered that the activity or structure was causing environmental damage.
Best practice
9.10 The development of best practice guidance demonstrating how to minimise the environmental impacts of engineering activities will form an important aspect of the regime. This guidance could cover specific sectors, for example, 'flood defences' or 'land drainage' or 'fisheries improvements'. These guidance documents should create a "level playing field" whereby a person considering an engineering operation or the owner or occupier of a structure in a river, loch, estuary or coastal water will know in advance the standards to which he/she will have to adhere.
9.11 The RBMP would also highlight geographical areas where the biology is particularly sensitive to damage from engineering operations. Someone thinking about carrying out engineering works would know in advance whether controls were likely to be applied or not.
The regime
9.12 Ensuring good practice is implemented, whether under a statutory code or through other methods, will be important. However, the engineering operations regime, like the others we have described, will require some teeth to ensure the environment is protected. After it has received notification of an activity the regulator will determine whether it requires to be the subject of control. If the activity will not impact on water quality no controls need be applied. However, if it will, the regulator will determine the most appropriate method of control. The regulator might decide that registration on the basis of generally binding rules will be sufficient or that a more detailed licence dealing with the particular circumstances of that activity is necessary. In any event the regulator will require powers to enforce the controls.
Restoration
9.13 It may be necessary to require mitigation work to restore waterbodies where engineering work prevents the achievement of the environmental objectives defined in the RBMP. For example, where a river was straightened and deepened without notification to the regulator. If this caused serious damage to a fishery, the restoration of the river to its original condition could be required.
9.14 Restoration of waterbodies modified by historic engineering may also be required by the RBMP. Under these circumstances, the regulator would need powers to facilitate the restoration work. An example could be the existence of a canalised length of river that no longer had any function. Restoration might be necessary to improve or maintain the environmental quality of the river.
9.15 The way the regime might operate is summarised in a flow diagram in Table 9.1. We would welcome your views. Should we proceed to design the system along the lines described above? Is there any scope for taking a different approach? How should the new regime interact with existing regimes?
Table 9.1: Engineering Controls
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