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Chapter four
DELIVERING ENVIRONMENTAL IMPROVEMENTS

4.1 This chapter is concerned with mechanisms for delivering environmental improvements on the ground. This will involve bringing in some new types of regulatory controls. It may also involve making alterations to the current system of licensing pollution discharges from point sources. In doing so, we will seek to deliver maximum benefits for the Scottish environment in a way that minimises the regulatory burden on business and domestic water users.

Directive's Requirements

4.2 The Directive requires Member States to put in place certain mandatory measures. A range of other, supplementary approaches can be used, including, for example, codes of practice and 'green taxes' (see Box 4.1). The mandatory measures are controls on:

• Point source pollution (pollution from a recognisable source, such as the end of a pipe)
• Diffuse source pollution (indirect pollution from human activities such as general runoff from urban areas or farmland)
• Abstraction (the removal of water from rivers, lochs, estuaries and coastal waters and underground sources)
• Impoundment (the storage of water behind a dam or other works)
• Other engineering works (e.g. land drainage, straightening and diverting rivers and burns, flood and sea defences)

4.3 These controls only have to be deployed where necessary to protect the environment. They are only needed if these pressures are likely to or have already caused significant environmental impacts.

4.4 These controls will need to be regulatory. That is not to say that there isn't a place for other approaches, including voluntary measures, such as voluntary codes of practice and action by community and other groups. Rather, there must also be a regulatory 'safety net' so that if voluntary measures fail then the environment is still protected.

Box 4.1: Supplementary measures:

Can we deliver the requirements through existing legislation?

4.5 Point source pollution is already regulated, mainly through the Control of Pollution Act 1974. Pressures from abstraction, impoundment and engineering are subject to some forms of consenting procedures, including:

• Planning permission under the Town and Country Planning (Scotland) Act 1997
• Leases for developments in coastal waters from the Crown Estates
• Licences under the Food and Environment Protection Act 1985 for developments on the sea bed
• The consenting procedure for hydro electricity schemes under the Electricity Act 1989 and other preceding legislation
• Water orders for drinking water abstractions by the water authorities under the Water (Scotland) Act 1980
• Environmental Impact Assessment procedures for many types of development, and for other activities such as forestry, marine gravel extraction and fish farming

4.6 However, even taken together, these regimes do not fulfil the Directive's requirements. They do not provide comprehensive coverage of all the impacts that need to be controlled. A more comprehensive approach to protecting the water environment will be needed - one that will allow us to ensure that the environmental objectives set are achieved.

4.7 Moreover, most of these existing regimes are not primarily concerned with protecting the environment. To use them to implement the Water Framework Directive would involve making undesirable changes to their scope and purpose. It would be better to bring in new controls to sit alongside these existing systems or, in some cases, for the new controls to subsume them. For example, if a company wanted to build a new industrial site with an associated abstraction, development considerations could be dealt with by the planning system and environmental considerations by the abstraction control system. This is analogous to the current situation where developers have to apply for discharge consent licences separately from planning permission. On the other hand, it might be useful to bring water orders within the scope of the abstraction regime.

Reducing the Regulatory Burden

4.8 We recognise that these new controls could pose a significant burden on business. We believe that the following principles should reduce that burden:

• The controls should be selective, being deployed only where they are needed
• The controls should be proportionate to the degree of environmental risk
• The controls should be streamlined as far as possible

Selective

4.9 The controls should only be deployed where they are needed. If an activity cannot affect the status of a water body then it will not need to be controlled. The need for control in any particular situation will be determined by the environmental objectives that apply. The river basin planning process should make it clear to water users what types of control will be applied in which areas.

Proportionate

4.10 The controls should be proportionate to the degree of environmental risk. Although they must be regulatory, they do not have to take the form of licences. There is scope to apply simplified control mechanisms that should help to reduce the administrative burden on the regulator as well as water users. These range from the application of enforceable codes to the use of standard licences.

4.11 General binding rules are specifically mentioned in the Directive. These may be statutory codes of practice or general rules applying to certain sectors or specific impacts. These "rules" are particularly appropriate where the environmental risks associated with an activity are relatively low and a standard approach to controlling its environmental effects can be developed. A water user would only have to register under the "rule". No licence application would be necessary. These rules provide a "level playing field" for a sector. Table 4.2 outlines some of the differences between licences and general binding rules. We envisage a two tier system whereby major impacts are subject to licensing and minor impacts are controlled through the use of registration under general binding rules. Even where licences need to be used, a similar approach could be employed through the use of standard licence conditions for specific sectors or processes which would have simplified licence application procedures.

Table 4.2: Licences and General Binding rules

Streamlined

4.12 Where licences are used, it would be possible to introduce separate licences for each impact. This would mean, for example, that a dam would require three licences covering impoundment, abstraction and engineering and a distillery would need licences covering abstraction, discharges and possibly impoundment. However, this would impose an unnecessary administrative burden upon industry. Indeed, it would be perverse to issue separate abstraction and impoundment licences for a water supply reservoir where impoundment management and the abstraction regimes are so closely linked. Similar arguments apply to abstraction and discharge licences for distilleries. Instead, we believe that, where possible, single water use licences should be applied to include conditions for the full range of uses at a particular site. Table 4.3 explores how such licences could reduce the regulatory burden.

Table 4.3: Single Water Use Licence

Common Principles for control regimes

4.13 Each control regime is discussed in more detail in the forthcoming chapters but we believe there are certain principles that should be common to each:

• Risk Based. Controls need to be based on risk assessment and insignificant impacts can be excluded. However, the regulator will need to have the flexibility to decide which impacts to exclude or include in the regimes according to local circumstances.
• Activity rather than person specific. This would mean that once an activity is approved at a particular site anyone is authorised to do it. The alternative would require an application for review every time the owner/operator changed.
• Appeals. A simple and fair appeals system will be required.
• Phased implementation. It may be necessary, for environmental reasons and to comply with the obligation to ensure no deterioration, to make some of the controls required by the Directive operational in advance of the timetable set out in the Directive. This would allow water users to plan for any required mitigation measures over a longer timescale and help spread investment costs.
• Charging. There will have to be associated charging schemes to recover regulatory costs from users.

4.14 We would be interested in your views on our proposals and, in particular, whether there are any additional means of reducing the regulatory burden.

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