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Chapter three
RIVER BASIN PLANNING IN SCOTLAND

3.1 River Basin Planning will be at the heart of our Bill. It is the mechanism through which the rivers, lochs, coastal waters, estuaries and groundwaters that form part of the same catchment or natural water system can be managed together. In essence, it is the central vehicle for implementing the Directive's requirements. It will be a means of reporting progress and a yardstick against which the decisions on controlling particular activities affecting waters are made.

3.2 However, river basin planning poses big questions for Scotland. How many river basin districts should there be? How do we cope with the situation at the border with England? Who should take responsibility for their preparation and implementation? How do we best involve all interested parties in the process? How will the River Basin District Planning process interact with the land use planning system?

River Basin Districts

3.3 A system of River Basin Management has no precedent in Scotland. There are a number of local catchment management plans but these target particular problems in particular geographic areas. Initiatives on the Dee, around Loch Lomond and Loch Leven and on the Solway are examples but these are different in terms of scope and scale from the River Basin Districts the Directive envisages. Taking the Solway Firth Partnership for example, water quality (the core of the Directive) is only one aspect covered by its integrated coastal management approach and it does not cover the whole catchment - all the rivers, lochs and associated groundwaters that flow into the sea through the estuary.

3.4 Accordingly, we need to create new structures. Ignoring for the moment the situation at the border with England, we believe there are 3 options for defining river basin districts in Scotland:

• One Scotland wide River Basin District;
• Three River Basin Districts based on the 3 SEPA areas; and
• Fifteen or so River Basin Districts based on the old River Purification Board boundaries and relating to the principal river catchments.

3.5 There are attractions in designating all of Scotland as one River Basin District. It would be comparable in population size to the River Basin Districts that are likely to be established across much of continental Europe and in England - although it would still be smaller than some e.g. the Rhine River Basin District. It would also have the advantage of helping ensure consistency of approach across the country and would reflect moves towards a more national structure within SEPA and the water authorities. However, it ignores the wide diversity of water environments in Scotland. Environmental problems are not uniform. One River Basin District would also make it more difficult to engage the public and other interested parties in planning for the environment in which they live and work - one core purpose of the Water Framework Directive. It could be seen as remote and at too strategic a level to interest them.

3.6 Designating upwards of fifteen River Basin Districts across Scotland would encourage involvement by the public and interested bodies but it would put us significantly out of step with the rest or Europe. It would complicate the process of reporting plans to the Commission but, most importantly, it would add greatly to the bureaucracy involved in the system. Fifteen individual plans covering fifteen different areas not presently reflected in any existing administrative structure would need to be drawn up. This number of River Basin Districts would also jeopardise a consistent approach across Scotland.

3.7 There are advantages in designating three River Basin Districts. Being based on the boundaries of the existing SEPA areas (Highlands, Islands and Grampian, South East and South West) means that the Scottish River Basin Districts would reflect at least some existing administrative and operational arrangements. They would also reflect the differences in our environment - the urban rivers of central Scotland tend to suffer from very different pressures from those in the Highlands. It should also allow a sufficiently strategic approach to management of the environment while still reflecting local circumstances. It should be able to engage with local people and groups but at the same time give comfort to those looking for consistency of approach.

3.8 For England and Wales, the Department for Environment, Food and Rural Affairs (DEFRA) has already announced that it plans to have 10 river basin districts. We expect that France will almost certainly use its existing 6 historic 'Bassins de l'eau' as its river basin districts for the purposes of the WFD.

3.9 The decision for Scotland is a finely judged one. Our inclination is that designation of three River Basin Districts for Scotland would achieve the best balance between making the planning unit relevant to the local environment and those who live in it on the one hand and consistency of approach and ease of administration on the other. Do you agree? This proposal is illustrated in
Map 1.

Cross-Border River Basin Districts

3.10 The position described above is complicated by the fact that we have rivers at each end of our border with England with tributaries that flow from both sides of the border. It is important to note that the Directive provides that a River Basin District may be made up of one or more river basins but makes clear that a river basin cannot be split because it crosses international or other boundaries. There are good environmental reasons for this - it would after all make no sense for Portugal to manage the River Tejo from the point it enters that country until it reaches the sea at Lisbon ignoring the fact it rises in Aragon in Spain and flows past Toledo and through Extremadura on its long journey across the Iberian peninsula.

3.11 As far as Scotland and England are concerned we have to manage the Solway and Tweed catchments as whole units extending north and south of the border. We also have to put in place arrangements for the small number of tributaries of the Tyne that reach across the border north of Kielder Water.

3.12 There are a number of options for configuration of River Basin Districts at the border. We believe it makes sense, given the very small proportion of the Tyne's river basin that lies in Scotland (4 small burns running to a total of 15 km in length), that that basin sits in the same River Basin District as the rest of the north-east of England. In respect of the Solway and the Tweed the position is less simple. The Solway basin is roughly equally divided between Scotland and England and it may make sense to designate it as a self-standing River Basin District. Another option may be for that basin to be incorporated into the River Basin District covering the north-west of England. In relation to the Tweed, the majority of that basin lies in Scotland and it may make sense to simply incorporate it in the River Basin District covering the east of Scotland. These decisions will have to be taken jointly between the UK Government and the Scottish Executive but your views are invited at this stage. The administrative arrangement underpinning the cross-border River Basin Districts will be discussed later (see para 3.32).

How far out to sea?

3.13 There is another issue in relation to the definition of river basin districts - how far out to sea should they go? The seaward extent of the Directive does not coincide with current legislation and so we have a decision to take in relation to the seaward extent of river basin districts. As we have said, the Directive sets two types of standard for surface waters, which includes coastal waters - ecological and chemical. The standards for ecological status apply to waters up to 1 nautical mile from the territorial baseline. The specific chemical standards, measured by the presence of priority substances, apply in the member states' territorial seas, that is, up to 12 nautical miles from this baseline.

3.14 In Scotland, the territorial baseline itself encompasses a large area of coastal water. SEPA's pollution control powers extend to 3 nautical miles from this baseline (see Map 2). We believe that it would be a retrograde step to reign this back to 1 nautical mile for the purposes of the Directive. We suggest that the requirement to protect ecological status of coastal waters should extend to 3 nautical miles from the territorial baseline. It is important to note that this will mean that physical impacts as well as chemical impacts from pollution will need to be controlled up to 3 miles. However, this is unlikely to have any major implications in practice. Firstly, many physical impacts are already controlled in this area through licensing under the Food and Environment Protection Act 1985 while others are controlled by other legislative provisions, such as the Coast Protection Act 1949. Secondly, because the area of sea enclosed by the territorial baseline is already so large, we are not extending the Directive's requirements to cover a significantly larger area of water as Map 2 shows. Do you agree with this approach?

Lead Authority

3.15 The Water Framework Directive requires that we put in place the appropriate administrative arrangements, including the identification of the appropriate lead authority that will have responsibility for ensuring the River Basin Management Plans are drawn up and for the implementation of the Directive on the ground. Table 3.1 lists some of the functions of the lead authority. Our options in respect of the appointment of that authority are fairly wide. We have to appoint at least one (but there may be more) for each River Basin District. We may also appoint existing bodies or create a new body for this purpose.

Table 3.1: Functions of the lead authority

3.16 We believe that utilising the existing Scottish public authorities to implement and operate the Directive makes more sense than the creation of a brand new body. A new organisation would ensure the easiest read across to the Directive's requirements because its powers and duties would have to be set out in the Bill. However, such an endeavour would be very demanding of resources - both financial and legislative - and would inevitably create significant upheaval in existing organisations. Many existing bodies in Scotland already have powers relevant to the Water Framework Directive. These include SEPA, SNH, Local Authorities and the Forestry Commission to name but a few. For a new organisation to be viable the relevant functions would have to be carved out of these organisations and transferred to the new body. That would not be a simple task.

3.17 More importantly it is clear that the scope of the Water Framework Directive is such that no one organisation - no matter how carefully crafted - could be held responsible for all of the actions that flow from it. The key to making a success of the Directive in Scotland is that its requirements are taken on board by the wide range of bodies upon whose activities it impacts. We believe that the effective allocation of the right mix of powers and duties to the right bodies will make the Directive work and that the creation of a new authority would be a distraction. Do you agree?

3.18 Assuming that our implementation arrangements are based on existing organisations, which of them should be appointed as the lead authority? As we have already seen there are a vast range of public sector organisations that may have a role in implementation of the Directive.

3.19 There are a number of qualities required of the body that will take the leading role in the implementation of the Water Framework Directive in Scotland. These may be usefully broken down in two broad categories: Scientific and Operational Capacity and accountability

3.20 Scientific and Operational Capacity - the construction of the River Basin Management Plan will depend upon hard science on the ground. The assessment of environmental pressures; the breaking down of rivers and lochs into relevant management units; the determination of environmental objectives and consideration of the best means of achieving them - all of these important building blocks require considerable expertise in management of the water environment. The lead authority will also need to have the ability to translate the RBMP into action at the local level. This will depend upon operational capability across Scotland.

3.21 Accountability - delivery of the science will not be enough. For the Water Framework Directive and River Basin District Planning to be successful the lead authority requires the ability to engage with and bring on board the wider community - in the public, private and voluntary sectors. It will therefore need to have a local focus and the ability to engage with other parties in the drawing up of the RBMP. Experience of consultation with the public and voluntary sector would be a particular asset. However, a national perspective will also be important. Otherwise, there would be a danger of inconsistent practice across the River Basin Districts that was not based on environmental conditions.

3.22 On the basis of these criteria we believe that SEPA is best placed to take the lead role in the implementation of the Directive - in the drawing up of River Basin Management Plans and in their execution on the ground. SEPA has the ability to adopt both a national perspective and to reflect regional issues. Indeed its area boundaries fit natural catchments at the scale we believe to be appropriate. It is also accountable through regional and national boards and through Scottish Ministers. SEPA also has unparalleled experience of regulation and therefore would seem the natural home for most of the new powers of environmental regulation the Water Framework Directive will bring. Indeed, the protection of the water environment is one of its particular responsibilities. It appears to us that designating SEPA as the lead authority would provide a very useful opportunity to harmonise the river basin planning process with the regulatory activity that will flow from it in a cost-effective manner. Your views on the proposal that SEPA be the lead authority in Scotland in relation to the Water Framework Directive would be appreciated.

Securing Ownership and Participation

3.23 Appointing a lead authority is not enough, it is also important to consider how best to ensure the involvement of other public sector organisations. As a matter of law all public sector bodies are obliged to comply with all European legislation. This would include, of course, the Water Framework Directive. However, we believe that it would be useful for the sake of clarity and to send a message about the importance of the Directive that the Bill impose a general duty on all public authorities to act in accordance with the Directive.

3.24 In addition, there are a number of organisations other than SEPA who have particular responsibilities or who already carry out specific activities key to the implementation of the Directive. The environmental monitoring activities carried out by SNH, the water authorities and others are an example. The River Basin District planning authority will require access to this information. A specific duty on them to share relevant data with the lead authority might be appropriate. Development or land use planning is another good example. The use of land around a river or loch may often influence the quality of that body of water. The responsibility for development planning rests with Local Authorities. To meet the Directive's requirements, we will need to make sure that development is planned with due regard to the needs of the water environment. To that end planning authorities would be required to take account of the obligations of the Water Framework Directive expressed in RBMPs when preparing structure or local plans. The regulatory powers of the Forestry Commission are yet another example. It may be appropriate to provide for a specific duty to be placed on these other bodies in respect of the Water Framework Directive. Do you agree that we should impose a general duty on all public authorities and specific duties where they are relevant?

3.25 We also need to consider what the mechanism should be for securing ownership of the plan at the local level. Firstly, the public authorities that may be called on to assist in the implementation of the plan need to have a say in what it contains. This is only fair given that we will be imposing on them a duty to act in accordance with the Plan. We do not believe that SEPA has or will be able to have a monopoly on the information required for the plan. It will have to depend on other public sector organisations to ensure that each River Basin Management Plan is best suited to its local environment. For that reason, we propose that an obligation is placed upon SEPA to consult with and take account of the views of other relevant authorities in their production of the plan.

3.26 Secondly, we believe that ownership needs to be secured in the private and voluntary sectors. Non-statutory groups and other interested parties (e.g. industry organisations, environmental NGOs, farming and crofting interests, fishing organisations, community councils) will have expertise as well as data to contribute to the plan. We believe that in order for the process to be successful - to protect our environment in the most effective manner - we need to involve these organisations. We need to harness their enthusiasm and ideas. After all, the more these organisations are involved in and understand how and why particular objectives have been set, the better placed they are to incorporate them into their activities and the more effective the implementation of the plan will be.

3.27 How best might these organisations be involved? As we explained in Chapter 2, the Directive itself sets down requirements for public consultation on the RBMP. Provision will be made to ensure that the lead authority complies with these requirements but we believe we need to go further than merely allowing comment on a draft plan at certain stages of the process. We believe that effective inclusion requires more than that. For that reason, we propose to require that the lead authority establish a forum in each River Basin District to facilitate dialogue on the RBMP. These fora would act as standing consultative panels for interested parties and stakeholders. It might be appropriate that sub-groups could be set up to seek views on particular issues or problems as they arose.

3.28 Do you agree that the lead authority should be obliged to consult with and take account of the views of other relevant public authorities and that it be required to establish a consultative forum in each River Basin District?

3.29 We would be interested in any other view you have on how we might best secure the involvement and ownership in the river basin planning process. Is there a role for community planning? What role could new technology play?

Role for Scottish Ministers?

3.30 We believe that there should be a role for Scottish Ministers in the approval of River Basin Management Plans. We propose that, similar to the system for structure plans, Scottish Ministers should approve RBMPs. This would ensure an appropriate level of consistency across Scotland. Scottish Ministers would be accountable to the Scottish Parliament for their decisions on the plans.

3.31 We envisage a system whereby the lead authority, having consulted with its public sector partners and other interested parties through the consultative forum, would transmit the RBMP to the Scottish Executive for approval. At that stage other interested parties would have the opportunity to make further comments on the plan. Ministers would then take a final decision on an informed basis.

Cross-Border River Basin District Planning

3.32 Special administrative arrangements will have to be put in place in relation to the cross-border River Basin Districts that will be established. We would hope a simple system can be designed whereby the separate authorities (SEPA north of the border and the Environment Agency for the south) co-ordinate the necessary management functions for their area, based on a jointly agreed River Basin Plan. Further work with DEFRA on these arrangements will be required.

Relationship of River Basin Planning to other Planning Regimes

3.33 There are a range of other planning regimes and initiatives already in existence which impact on the quality of our water environment. As we have seen, development or land use planning is an example. Given the well established role of development plans in environmental matters we believe it should not be too difficult for planning authorities and SEPA to ensure that these plans - and just as importantly the development decisions informed by them - cross refer to or apply the relevant parts of the River Basin Management Plan. Similarly, the RBMPs should cross refer to and apply development plans, where consistent with the Directive's requirements

3.34 Other examples include National Park Plans, coastal zone management plans, salmon and trout fishery plans and Local Biodiversity Action Plans. Effective river basin management will require a means of integrating these other planning regimes with the river basin planning system.

Sub-basin plans

3.35 The Directive specifically provides that River Basin Management Plans may be supplemented by sub-basin plans that deal with particular aspects of water management either at a smaller geographical scale or in respect of particular pressures. However, it is important to note that the Directive does not require the production of such plans. There are a number of plans (known as catchment management plans) already in existence in Scotland which deal with water quality but which have a narrower geographical focus than a RBMP. We believe that the existing approach to local catchment management planning in Scotland - which has depended largely on voluntary activity - has been a successful one. We are keen that the Water Framework Directive does not stifle that creativity and effort. For that reason we do not propose to seek to establish a comprehensive network of local catchment management plans across Scotland.

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