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Implementation of the Water Environment and Water Services (Scotland)

Act 2003 Annual Report to Scottish Parliament 2003

Section 1 Introduction

1 The Water Framework Directive

The Water Framework Directive 2000/60/EC (WFD) applies to all water in the natural environment - that is all rivers, lochs, estuaries and coastal waters as well as water under the ground. It came into force on 22 December 2000 and we had three years from that date to translate its provisions into Scots Law.

The basic objectives to be achieved as set out in Article 4(1) of the WFD can be summarised as follows:

• prevent deterioration in the status of surface water bodies;

• protect, enhance and restore all bodies of surface water with the aim of achieving good surface water status by 2015;

• prevent deterioration of the status of groundwater bodies;

• protect, enhance and restore all bodies of groundwater with the aim of achieving good groundwater status by 2015;

• prevent or limit the input of pollutants to groundwater and reverse any significant and sustained upward trend in the concentration of pollutants in groundwater;

• comply with European wide measures against priority and priority hazardous substances; and

• achieve compliance with any relevant standards and objectives for protected areas.

The Directive requires Member States to put in place systems for managing their water environments, on the basis of units that make sense in environmental terms - River Basin Districts that include all interdependent rivers, lochs, estuaries, coastal waters and associated underground waters. A plan will have to be drawn up for each River Basin District setting out where there are environmental problems and what will be done to tackle them.

For the first time, we will control all impacts - physical, polluting and otherwise - on the water environment with the aim of achieving "good" ecological status for most waters by the specified deadlines of 2015 in most cases. Status is determined on the basis of ecology because the Directive requires that quality is determined not just by the chemical composition of waters but by the fish, plant and other life that inhabits it.

We also need to take account of the need to recover the costs of water services as a way of encouraging the sustainable use of water resources.

The Directive repeals and replaces a number of older EC water Directives and incorporates the remaining existing water Directives (the Bathing Water, Nitrates and Urban Waste Water Treatment Directives) into its framework through its protected areas provisions. The "Natura" Directives on the protection of Habitats and Birds are also linked to this Directive by virtue of the protected area provisions.

A web link to the Water Framework Directive is included in the annex to this report.

The WFD has been successfully implemented in Scotland by the Water Environment and Water Services (Scotland) Act 2003 (WEWS). This places Scotland in an excellent position and our goal is to maintain this position throughout the implementation process.

The WEWS Act identifies SEPA as the competent authority for Scottish River Basin Districts and gives certain duties to Scottish Ministers.

In drawing up the provisions of the WEWS Act we took the opportunity to go beyond the requirements of the WFD and introduce provisions which should result in better environmental improvements for Scotland.

• WFD objectives will apply up to 3 nautical miles in Scotland.

• The WEWS Act introduces specific requirements to identify pressures and impacts in wetlands directly dependent on a body of surface water or a body of groundwater. The WFD's monitoring requirements have also been extended to cover such wetlands. We believe these provisions provide additional protection of the water environment without placing an undue burden on stakeholders or regulators.

• The WEWS Act contains provisions for the promotion of sustainable development and places specific duties on Scottish Ministers, SEPA and the responsible authorities to:

• • promote sustainable water use based on the long-term protection of the available water resources; and

  • promote sustainable flood management. We have recently set up a national advisory group to produce guidance on sustainable flood management, with input from such bodies as SEPA, the local authorities, Scottish Water and the insurance industry.

• The Act requires Scottish Water to take responsibility for the ongoing maintenance of all SUDS systems which meet certain construction standards.

The WEWS Act also requires that an annual report on progress should be submitted before the Scottish Parliament, and this first report focuses on the progress made during 2003.

A web link to the Water Environment and Water Services (Scotland) Act 2003 is included in the annex to this report.

Although the WEWS Act received Royal Assent in March 2003, a Commencement Order was necessary to activate certain sections of the Act necessary for the implementation process to proceed. This order was made on 20 November 2003.

A web link to the Commencement Order is included in the annex to this report.

We are committed to working in partnership with other agencies to ensure that the WEWS Act and its regulatory regimes are effectively implemented in Scotland.

At the last spending review we increased SEPA's grant-in-aid to make provision for the additional work required for the introductory phases of implementing the WFD.

This year we also provided additional funding of 250,000 to support partner organisations engaged in the implementation process. The bulk of this money was allocated to Fisheries Research Service (FRS) and to Scottish Natural Heritage (SNH).

Section 2 Progress On Implementation

In this section we report on progress during 2003, on a section-by-section basis in relation to the various objectives set out in the WEWS Act, and comment briefly on the work planned for 2004.

6 Responsible Authorities

Section 2 of the WEWS Act, gives Ministers powers to designate public authorities as "responsible authorities" in relation to the functions that they have which impact upon the water environment. The purpose of such a designation is to ensure that public bodies with functions that have an impact on the water environment carry out those functions in a way that helps to ensure compliance with the objectives of the Directive.

The requirements are set out in Section 2 of the WEWS Act as follows:

• to exercise their designated functions to secure compliance with the Directive;

• to have regard to the social and economic impact of such exercise of those functions.

and

(a) to promote sustainable flood management;
(b) to act in the way best calculated to contribute to the achievement of sustainable development;
(c) so far as is practicable, to adopt an integrated approach with other responsible authorities.

We have begun the process of identifying possible responsible authorities and discussing the duties and implications of designation for those bodies. We propose to issue a discussion paper to all the relevant bodies shortly and aim to lay the designation order before Parliament during 2004.

Section 2 also stipulates that Scottish Ministers and SEPA must exercise their functions "under the relevant enactments" so as to secure compliance with the requirements of the Water Framework Directive. We are in the process of identifying the relevant enactments, and aim to make the appropriate legal instrument in 2004.

The WEWS Act has put river basin management planning at the heart of our policy for the sustainable management of Scotland's waters. This process will provide a reference point for all forms of planning that affect the water environment, and will help to drive forward our sustainability agenda because it will integrate environmental priorities with social and economic implications.

Scotland RBD

The first step in this process was the designation of river basin districts in Scotland and we have designated a single river basin district for most of Scotland. The river basin district will cover associated wetlands and extend to a seaward limit of 3 nautical miles.

Cross-Border RBDs

There are two further river basin districts straddling the Scotland-England border - the Northumbria RBD and the Solway Tweed RBD.

The proportions of Scotland and England in each of these cross-border districts are vastly different and as a result the approach to managing these will also require to be different. In drawing up the legislation for these districts, the underlying policy objectives were to ensure that the cross-border region could be managed on each side of the national border according to the principles in the main legislation of each administration, but at the same time ensuring a cohesive and practical approach to river basin planning.

• Northumbria RBD

This RBD is almost entirely in England, apart from a very small sliver of the North Tyne river basin, and so had to be defined by separate legislation from the rest of England & Wales, via the Water Environment (Water Framework Directive) (Northumbria River Basin District) Regulations 2003. A link to these can be found in the annex.

The area of Scotland covered by this RBD is so small that it was quite clearly not appropriate for the full requirements of the WEWS Act - and particularly the prescribed river basin planning process - to be applied in that area. But it was important to ensure that Scottish Ministers and SEPA had the powers to protect Scottish interests in that area if required. The Northumbria Regulations are therefore broadly similar to the England & Wales Regulations, but make provision for SEPA to be consulted on the environmental objectives and the programme of measures in the Scottish area of the RBD.

• Solway Tweed RBD

On the other hand, the geographical make-up of the Solway Tweed RBD is such that close co-operation between the governments and the agencies for the river basin planning process will be essential. The Water Environment (Water Framework Directive) Solway Tweed River Basin District) Regulations 2004 make provisions to enable joint working between the respective governments and agencies at all stages of the process. A link to the Regulations can be found in the annex.

After considering responses from stakeholders in the Dumfries and Galloway area, it was decided to extend this cross-border RBD to include rivers to the west of the proposed designation. This river basin district covers such a large part of Scotland that Scottish Ministers were keen to make similar provisions for this area of Scotland as for the rest of the country. It was not considered appropriate to include in the Solway Tweed Regulations those provisions in the WEWS Act which go beyond WFD requirements. We are using other exisiting powers to apply the characterisation and monitoring provisions to wetlands in the cross-border area. By this means we will achieve the same effect in the cross-border area as the WEWS Act achieves in the rest of Scotland.

For instance, section 17 of the WEWS Act makes provision for the establishment of one or more advisory groups in each River Basin District to advise SEPA on any matter which relates to the preparation of river basin management plans for the district.

Scottish Ministers have written to SEPA expressing their wish that such a group be set up in the Scottish part of the Solway-Tweed RBD to ensure that the participative requirements of the WEWS Act are equally provided for in that part of Scotland.

The management of such a river basin district needs very careful consideration. Detailed proposals for co-ordination of the river basin planning process have still to be worked out. The governments and agencies on both sides of the border will be working closely together during the coming months to develop these, and continuing to involve local partnerships who can usefully inform these developments.

The characterisation process is significant because it is the first step in defining those water bodies which will require "programmes of measures" to be included in future river basin management plans. These measures will be designed to ensure compliance with quality objectives (by 2015). A report is required by December 2004, and good progress has been made over the past year.

SEPA is the lead organisation for characterisation of Scottish waters but recognises that a number of other organisations have experience and data which will greatly contribute to the process. The Core Risk Assessment Group (CRAG) was established as a partnership forum in order to contribute to production of the characterisation report. It consists of the following members:

• Scottish Natural Heritage

• Fisheries Research Services

• British Geological Survey

• Scottish Water

• British Waterways

• Macaulay Institute

• Scottish Executive

• SEPA

The first step of characterisation is the division of river basin districts into the different water categories: rivers, lochs, estuaries and other transitional waters, and coastal waters. Further subdivision is then required into types based on natural factors that might significantly influence the presence and abundance of plants and animals (this is referred to as "typology" in the WFD). Factors include for example, altitude, geology, catchment size and latitude and longitude. One of the main purposes of typology is to allow comparison with other member states. This will ensure that good status is equivalent across Europe, as is being coordinated through the intercalibration process. Typology has been completed for surface waters as required by the WFD.

The next step following on from typology is the identification of water bodies. Water bodies form the basic management units of the WFD and for surface waters can be rivers, lochs, estuaries, parts of rivers, lochs, estuaries or stretches of coastal waters. Water bodies have been identified and for Scotland there will be approximately 2360 river, 350 loch, 50 estuaries/transitional, 450 coastal and 150 groundwater water bodies.

The most important part of the characterisation process is the pressure and impact analysis. Pressure and impact assessments have largely been completed and the assessments will identify those water bodies which are at risk of not meeting their environmental objectives in 2015. A consultation on the characterisation report is planned for July 2004 and results of the assessments will be presented through this.

SEPA classified 14% of the waters in Scotland as polluted in 2002, the remainder being of good or excellent quality. However, characterisation is likely to substantially reduce the proportion of Scotland's waters which fall into the good/excellent category. This is because the assessment will include, in addition to pollution, the effects of:

• abstractions and impoundments; and

• engineering activity.

One of the main difficulties in carrying out the risk assessment has been that good status has not yet been defined across Europe. This is currently being done as part of a process called intercalibration which is being led by the European Commission and will feed into the development of the classification scheme. In order to ensure consistency within the UK, the UK Technical Advisory Group has set out criteria which are being used in the interim. Due to the history of pollution control in the UK, criteria in relation to these types of pressures are more robust than, for example, criteria in relation to morphological pressures which have not been regulated before now. Nevertheless, SEPA believes that the first analysis will provide a sound basis from which to start the river basin management planning process.

On 19 December 2003 a workshop was held to discuss the preliminary results of characterisation in Scotland. The workshop allowed stakeholders an early opportunity to comment and provide feedback on the process that has been undertaken and the methods employed. The workshop took the form of a series of technical presentations followed by time for discussion, covering the main areas of analysis conducted by SEPA and Scottish partner organisations.

A study of the economic aspects of water use in Scotland forms a key element of this assessment. Commissioned research will provide the necessary information to enable us to describe the economic characterisation of water use in Scotland by the end of March 2004. In addition to which sectors derive an economic value from water use, the research will provide a forecast of key trends that are likely to influence the Scottish water environment up to 2015. A separate piece of research (also delivering in March) will describe the current operation of the water market in Scotland, detailing who currently pays, what they pay for and what proportion of costs are recovered.

The WEWS Act requires Scottish Ministers to identify surface and groundwater sources that are used to supply more than 10 m3/day or more than 50 people. These must be designated as Drinking Water Protected Areas (DWPA) and placed on a register of protected areas, by December 2004.

The water quality of these sources must be protected so as to avoid the need for any future increase in the level of treatment process that is required in order to meet the standards set out in The Drinking Water Directive (80/778/EEC) as amended by Directive (98/83/EC).

From data supplied by Scottish Water, SEPA has been able to identify those water bodies that are used for public water supply. Groundwater aquifers that are used for private water supplies will also be identified as DWPA.

Where the data SEPA has been able to collect for characterisation allows the identification of private supplies from surface water sources then these will also be designated. This list will be reviewed following the start of the abstraction licensing system as this should provide a much more comprehensive dataset of small private abstractions.

This work is ongoing and is hoped to be completed in time for maps of the designated water bodies to be displayed in a GIS format on the internet as part of the consultation beginning in July 2004.

A register of protected areas is required to be produced by SEPA by December 2004 and already this has been largely completed. Maps of the areas/water bodies will be displayed in a GIS format on the internet as part of the characterisation report consultation beginning in July 2004. The maps will show the legislation under which the designation has been made, date of designation, the name and area/length of the protected area. The following protected areas will be included in the register:

• Special Protection Areas dependent on the aquatic environment (Birds Directive, 79/409/EEC)

• Special Areas of Conservation dependent on the aquatic environment (Habitats Directive, 92/43/EEC)

• Nitrate Vulnerable Zones (Nitrates Directive, 91/676/EEC)

• Sensitive Areas (Urban Waste Water Treatment Directive, 91/271/EEC)

• Bathing Waters (Bathing Water Directive, 76/160/EEC)

• Shellfish Growing Waters (Shellfish Waters Directive, 79/923/EEC)

• Salmonid and Cyprinid Waters (Freshwater for Fish Directive, 78/659/EEC)

The WFD requires a new approach to monitoring the water environment in Scotland. The following three types of monitoring will be required for all surface and ground waters:

• Operational - monitoring of known pressures on the water environment in response to specific risk assessments.

• Surveillance - monitoring of long-term changes in background conditions, and widespread validation of risk assessments used above.

• Investigative - monitoring in response to specific incidents, or to improve our understanding of specific problems.

These systems are required to be operational by December 2006, in order to provide information for the first River Basin Management Plans, due in draft form in December 2008.

The WEWS Act identifies SEPA as the authority for leading monitoring efforts in Scotland. SEPA are responsible for monitoring the status of the water environment and for preparing a programme for monitoring (whether by SEPA or other persons) the status of the water environment.

In addition to these new monitoring duties, the way in which the water environment is classified will change under the WFD. The changes represent a shift away from relying on chemical water quality as a means for classification of water towards using ecological quality (defined by water quality, water resources and habitat). Human pressure on ecological quality will be measured through impacts to specific biological quality elements.

SEPA has been working in partnership with other agencies in Scotland, England and Wales, Northern Ireland and the Republic of Ireland to develop pressure specific biological classification tools for fresh and tidal water environments. There are currently several projects in progress and numerous others being let out to contract in the near future. While these tools will require long-term development, it is hoped that we will have in place the majority of tools required to measure the biological impact of the major human pressures on the water environment by December 2006.

SEPA has also initiated an internal group, tasked with developing a Scottish Water Environment Monitoring Strategy, to cover the requirements of the WFD and other drivers on water monitoring in Scotland. This group will be expanded in the near future to include representatives from other groups in Scotland with the skills and expertise to help deliver WFD requirements.

In addition, SEPA is reviewing its existing networks of water quality, biological and hydrological monitoring. The review is intended to help plan the transition from existing monitoring drivers that have historically defined these networks, to WFD drivers which may well affect the location, timing and nature of monitoring. This work is expected to be completed as part of the Scottish Water Environment Monitoring Strategy.

Work on developing pressure specific biological classification tools will continue in 2004. In addition, work to develop analytical methods for detecting priority substances and specific pollutants will begin.

The first iteration of Scottish Water Environment Monitoring Strategy will be completed in 2004, in full consultation with partner groups. It is intended that this strategy will influence monitoring programmes starting in 2005, as we plan the transition to the WFD.

Monitoring programmes to support inter-calibration and reduce uncertainty in the characterisation exercise will also be continued in 2004. It is also hoped that data to support these tasks will also help in the development of biological classification tools.

The WFD requires the production of a River Basin Management Plan (RBMP) for each River Basin District in order to report the following:

• Environmental Objectives

• Programmes of Measures to achieve objectives

• Monitoring Programmes

• Protected Area Register

• Heavily Modified and Artificial Water Register

• Consultation and participation activities undertaken during production

• Responsible authorities involved in plan production

The WEWS Act identifies SEPA as the authority to lead the RBMP production process in Scotland. However, a number of responsible authorities and interested parties will be involved in plan production.

SEPA, recognising that in Scotland this new process would require much development prior to commencement, started the process of producing a Scottish RBMP Strategy in 2003.

In taking forward the development of this strategy the views of stakeholders were considered crucial and a number of seminars were held in September and October 2003 to gather views and opinions early in the consultative process. Around 350 delegates attended these events and made important contributions directly informing the public consultation document (to be published in spring 2004) and, ultimately, the final RBMP Strategy.

This active involvement in the strategy development process continues the participative approach adopted in Scotland throughout WFD transposition leading to the WEWS Act and demonstrates an ongoing commitment to the development of partnership working and stakeholder engagement during WFD implementation.

A key component of the RBMP process will be the setting of environmental objectives. SEPA has undertaken some provisional work on the identification of environmental objectives for 2015. This has been achieved by identifying the types of measures which will have to be taken to achieve good status for each water body. This will allow SEPA to make a provisional assessment of whether it will be possible to achieve good status by 2015. In many cases it will not be feasible or it will be disproportionately expensive to achieve good status.

When the RBMP is produced in 2009 it will include a programme of measures. This programme represents the actions required to achieve the environmental objectives set out in the RBMP and will be developed with stakeholders.

Work on the development of programmes of measures is currently at an early stage and will become the focus of significant further work in later years as the requirement to identify specific measures, standards and approaches to meet particular objectives and environmental problems within the RBMP comes closer.

SEPA has started the process of identifying specific measures necessary for individual Scottish Water assets. These specific measures will then be considered and costed within the Quality and Standards III process, which determines future investment in these assets.

Activity is likely to come forward at a UK and European scale on programmes of measures and SEPA will contribute to such initiatives to seek to ensure that recommendations and guidance are deliverable and appropriate to Scottish circumstances.

Crucial to an understanding of the Water Framework Directive is an appreciation of the fact that although it is concerned with "water" its scope is not restricted to what happens on or in water. The quality of any river, body of groundwater or other body of water will be determined not just by what happens within its banks but also by what happens on the land around it. A spill of polluting material, e.g. oil, quite remote from a river, may well find its way there with devastating effects. The construction of a housing development on a flood plain may create serious flooding problems downstream. For that reason, the scope of the WFD is not restricted to rivers or lochs or coastal waters - rather it requires consideration of any human intervention that could affect the quality of water, wherever that intervention takes place.

Section 20 of the WEWS Act gives Scottish Ministers powers to make regulations to control activities for the purposes of protecting the water environment.

With this aim, we established a number of working groups last year, comprising the Scottish Executive, SEPA, Scottish Water and Scottish Natural Heritage, to draw up proposals for key regulations on the following activities:

• Abstraction and impoundments

• Point source pollution

• Engineering and building works in, and in the vicinity of, the water environment

The underlying principle is that no activity which affects the water environment should take place without prior authorisation. The proposed regulatory controls are designed to be selective, proportionate and streamlined, and to be applied only where there is a risk to the water environment.

We will shortly publish our consultation paper on the proposed Regulations on these "controlled activities". These will introduce a single cohesive framework which lays the foundations for the new regimes. In summary, this framework will be based on three tiers of control:

• registration;

• registration under general binding rules; and

• licences.

For low-risk activities it is envisaged that only a simple form of registration will be required. Once that registration has been carried out no further regulation is envisaged. Such a process will provide SEPA with a full picture of all activities affecting the water environment and will enable them to judge the impact of the cumulative effect of those activities. We anticipate that around 80% of activities liable to cause environmental risk will come within this low-risk category.

The intention is that general binding rules (GBRs) will apply where environmental impacts are judged to be medium risk, and are predictable; and where mitigation measures can be prescribed in a common form. We currently envisage producing a range of GBRs to support each regime.

Licences will remain the most comprehensive method of control, and be appropriate in cases where environmental risk is greatest. These licences will be tailored to the particular circumstances of the activity concerned. It is envisaged that a single licence will cover all activities at a single site.

Section 22 of the WEWS Act confers power on the Scottish Ministers to make regulations for, or in connection with, any remedial or restoration measures that they consider are necessary for the purposes of achieving the environmental objectives in river basin management plans. Remedial or restoration measures might include, for example, the removal of a redundant weir or lade or the clean up of historical pollution where these threaten the achievement of the environmental objectives for the body of water concerned.

We propose to set up a working group to develop these measures during 2004.

Section 23 gives Ministers the power to make regulations regarding Scottish Water's or any other suppliers charges for water services, where that is necessary for the protection of the water environment.

We have not had the need to use these powers to date and are satisfied that our current arrangements for charging for water services in Scotland comply with the requirements of Article 9 of the WFD. It is anticipated that Scottish Water and the Water Industry Commissioner will be designated as responsible authorities under the WEWS Act, and will be required to carry out their duties so as to ensure compliance with the WFD, including Article 9.

Neither the WFD nor the WEWS Act will force a move to domestic metering for Scotland.

Statutory planning controls do not currently extend "out to sea", i.e. below the mean low water mark of ordinary spring tides. Section 24 amends the Town and Country Planning (Scotland) Act 1997 to provide for the introduction of statutory planning controls over marine fish farms. It allows the Scottish Ministers to make orders enabling planning authorities to discharge planning functions in relation to such developments in transitional or coastal waters, i.e. out to the 3 nautical mile limit. It does not provide for the general extension of planning authority boundaries seawards, and does not therefore apply to any other types of development offshore.

This is an enabling power. The extension of controls will come into force once appropriate secondary legislation has been approved by the Scottish Parliament. The new regime will replace the current non-statutory scheme for development consents administered by The Crown Estates. The current scheme is sometimes considered to be lacking in transparency and democratic accountability with The Crown Estates effectively operating both as quasi "regulator" of marine fish farm developments and as the landlord for the farms themselves. A conflict of interest between its dual roles is therefore perceived.

The extension of statutory planning controls will ensure that marine fish farming proposals are subjected to a more effective, transparent and democratically accountable system of regulation at a local level. It will also ensure consistency of approach with controls over associated land-based developments, and with proposals for freshwater fish farms (already subject to control under the Town and Country Planning (Scotland) Act 1997).

During 2003, the Executive has been engaging with key stakeholders, including local authorities, business and environmental interests and regulators, on preparing proposals to take forward workable and robust measures. This has been done bilaterally and through the Highlands and Islands Aquaculture Forum. The planning measures will be set out in a consultation paper to be published in due course. Following consideration of responses to the consultation paper, the Executive will introduce secondary legislation into the Parliament in 2005 on current plans.

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