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Controlled Activities Regulations

CHAPTER 1: PROPOSED REGULATORY REGIMES

1.1 Introduction

The WEWS Act gives Scottish Ministers powers to take the proposals outlined in the previous consultation papers a step further and make regulations to control activities for the purpose of protection of the water environment. The proposed control regimes outlined in this paper include:

• a replacement for the existing point source discharge consenting system set up under CoPA;
• controls on abstraction and impoundment, needed to deal with the environmental impacts caused by changes to flow and the physical modifications of dams and other structures;
• controls on building, engineering and other works, flexible enough to cover the many different types of activities that can have an impact on the physical quality of aquatic habitats.

1.2 Underpinning principles

In respect of these current proposals, the main objective is the development of a set of proportionate and risk-based controls. We are well aware that a key issue for stakeholders is for the legislation to provide a sufficient degree of certainty whilst permitting flexibility of regulation, and achieving this balance has been a key aim in the development of these proposals. These Regulations provide SEPA with a wide range of powers to enable them to fulfil their duties effectively and Scottish Ministers have the clear expectation that SEPA will exercise these powers reasonably and responsibly.

In March 2003 Ministers established a National Stakeholder Forum to offer advice on all aspects of implementing the WEWS Act. The Forum has considered an early draft of the Regulations presented in this document and provided feedback on the proposals. We have found this to be an extremely valuable process, and will continue to use the Forum to inform the future implementation process.

1.3 Timing

We propose that the new regimes should be phased in over two years from April 2005. The process of applying for authorisation under the new regimes should begin from that date. More details on the proposed transitional arrangements are set out in Chapter 3.

In summary, different arrangements will be put in place as follows:

• transfer of existing consents - existing conditions will be transferred to the new regime on the basis of current operational practice;
• activities commencing on or after 1 October 2005 - applications will be assessed on the principle of 'no deterioration'.

From October 2005, SEPA will review the authorisations and begin to identify the requirements that operators will have to meet by 2012. These requirements will then be varied into the relevant authorisation, giving an operator a set of conditions that apply until 2012, and a further set that will apply from 2012. The aim of this process is to give operators as much time as possible to plan the investments necessary to meet those requirements.

'No deterioration'

In setting authorisation conditions for new activities from October 2005 SEPA will be required to assess the effects on the environment of the proposed activity using the principle of 'no deterioration'. This does not mean that any deterioration, however minimal, would be forbidden (otherwise no new activities could be authorised) but rather that a proposed activity would be assessed on whether it was likely to cause the ecological status of the relevant water body to deteriorate from one category to the next (for example, from good status to moderate).

In addition, rigid application of this principle would clearly not be in the interests of either regulators or operators, and the Directive gives the clear message that the consideration of derogations must be an integral part of this process. SEPA will therefore be required to give due regard to the derogations permitted by the Directive. Thus new activities may be authorised, if appropriate, after due consideration of environmental, social and economic issues.

Discussion on proposals

In the following section, the proposals for the new regulatory regimes are discussed in detail. The draft Regulations can be found at Annex A, and you may find it useful to read those in conjunction with this chapter. The relevant Regulations are highlighted throughout the text below.

Part 1 - General

1.4 General provisions (Regulations 1-3)

Regulations 1 - 3 cover standard items relating to the name (the Water Environment (Controlled Activities)(Scotland) Regulations 2004) and commencement dates of these Regulations; and provide definitions for the terms used in the Regulations.

1.5 Modifications of the Act (Regulation 4)

During the process of developing the Regulations it became clear that some refinement was required in respect of the definitions of abstraction, impoundment, and building and engineering works, to provide greater clarity and correct some omissions on the scope of the proposed controls. These proposed changes will ensure that it is clear to applicants which activities will require prior authorisation.

Regulation 4 proposes various amendments to the definitions and scope contained in the WEWS Act, and these are discussed below.

We would welcome your thoughts on the proposed definitions outlined below, and any suggestions for added clarity.

• Abstraction - scope and definition

Section 20 of the WEWS Act provides for controls over 'abstraction of water from bodies of surface water or groundwater'. Regulation 4(1)(b) amends the scope of these controls to include all surface water and wetlands (as defined in the WEWS Act).

We also propose to amend the current WEWS definition of 'abstraction'. The existing definition does not cover extraction by gravity and Regulation 4(2) brings those abstractions within the scope of the Regulations. The definition also includes works carried on with a view to abstraction. This change is required to implement fully the requirements of the WFD.

Proposed definition:

• Impounding Works - scope and definition

Section 20 of the WEWS Act provides for controls over the 'construction, alteration or operation of impounding works in bodies of surface water'. Regulation 4(1)(c) amends the scope of these controls to include wetlands (as defined in the WEWS Act).

We also propose to amend the current WEWS definition of 'impounding works' to include wetlands. This is outlined at Regulation 4(3).

Proposed definition:

• Building and Engineering Works - scope

Section 20 of the WEWS Act provides for controls over 'building, engineering or other works in, in the vicinity of, any body of inland surface water'. Regulation 4(1)(d) amends the scope of these controls to include all surface water and wetlands (as defined in the WEWS Act).

Stakeholders have queried how the phrase "in the vicinity of" should be interpreted and indicated that it does not make clear which activities would require prior-authorisation. We have considered various possibilities for amendments but concluded that expanding the definition was unlikely to be more helpful.

In practice, then, operators who plan to carry out engineering or building works should consider whether their proposed works would have an impact on the shape or structure of the banks, channels or beds of rivers, streams or other watercourses, or on the habitats alongside watercourses. If this is likely then operators will require to apply for authorisation. If operators are in any doubt they should contact SEPA to discuss their circumstances.

We also believe it is imperative to protect groundwater aquifers from possible harm. However we do not propose to extend the building and engineering controls to groundwater, as it would be disproportionate to require all building and engineering works activities which could potentially affect groundwater (eg minor roadworks or construction) to seek prior authorisation. We believe that the provisions requiring authorisation prior to carrying out activities liable to cause pollution, or for the purposes of abstraction, should afford appropriate protection for our major groundwater sources.

• Groundwater - scope

Section 20 of the WEWS Act includes provisions for protecting our groundwater from activities liable to cause pollution, and abstraction. Certain other activities may pose a specific threat to groundwater, and so we propose to amend the WEWS Act to include 'artificial recharge or augmentation of groundwater' in the list of controlled activities at Section 20(3). That brings these activities within the scope of these Regulations.

1.6 Exempt activities (Regulation 5)

In advance of the work we shall be taking forward on diffuse pollution, we have made provision for exemptions in these Regulations so that certain activities liable to cause pollution, which are already regulated appropriately, will not be brought into the scope of these Regulations. Thus those persons bound by, and complying with, the following legislation to control diffuse pollution, will be deemed to comply with these Regulations:

• the Control of Pollution (Silage, Slurry and Agricultural Fuel Oil) (Scotland) Regulations 2003;
• the Sludge (Use in Agriculture) Regulations 1989;
• the Designation of Nitrate Vulnerable Zones (Scotland) Regulations 2002;
• the Designation of Nitrate Vulnerable Zones (Scotland) (No. 2) Regulations 2002; or
• the Action Programme for Nitrate Vulnerable Zones (Scotland) Regulations 2003.

1.7 Prohibition (Regulation 6)

The primary aim of these Regulations is to ensure that no activity that might pose a risk to the water environment takes place without prior authorisation. Regulation 6 indicates that no controlled activity may be carried on without a relevant authorisation by SEPA. The activity must also be carried on in line with the conditions of that authorisation.

In order to ensure that this aim is carried out effectively, the Regulations are designed to enable authorisation to be made with the minimum of disruption to operators, by introducing proportionate controls based on the level of risk to the water environment.

Part 2 - Applications and procedure

1.7 General Procedures (Regulations 7 - 12)

In order to minimise the regulatory burden introduced by the new controls we propose to introduce a single cohesive framework with 3 tiers of control, to allow the most appropriate level of regulation to be applied in relation to the environmental risk posed by that activity:

• registration
• registration under general binding rules, and
• licences

Regulations 7 - 12 set out the procedures involved in the authorisation process. Sufficient information will be available in the public domain to enable water users to judge which is the appropriate level of authorisation and for them to apply accordingly. We have purposely not set out detailed requirements for the form of applications in order to give SEPA the flexibility to draw up such requirements as they consider necessary.

On receiving an application, SEPA will carry out a risk assessment of the impact of that activity in that location, to confirm that the applicant has applied for the appropriate level of authorisation. This will ensure that the level of authorisation applied for is proportional to the impact that the activity will have on the water environment. This risk assessment will also enable an accurate picture of pressures on the water environment to be built up. Diagram 1 illustrates the authorisation process.

In the case of a large operation involving several related activities, it is proposed that there would be a single authorisation document covering all the authorised activities at that site, irrespective of the number of activities or the mix of tiers of authorisation.

1.8 Registrations

There are a number of activities which present minimal risk to the water environment, and it is anticipated that around 80% of all controlled activities will fall within this category. Those activities will require to be registered. SEPA will carry out a risk assessment on receiving the application to register, and if content will register the activity. Once that registration has been carried out no further regulation is envisaged unless SEPA are required to deal with cumulative impacts.

Registrations will be activity specific. In practice this will mean that once an activity has been registered in a particular location, that activity may continue in accordance with the original authorisation, irrespective of any subsequent changes in the operator, without the need for further authorisation, thus reducing the administrative burden on all concerned.

The central collation of this data will enable SEPA to gain a full picture of all activities affecting the water environment, and to take into account the cumulative effect of all such activities. SEPA will have the power to require a more stringent form of control where necessary, for example in sensitive areas, or in water bodies at risk of failing to meet environmental objectives.

SEPA will be consulting on proposals for their charging scheme later this year, and they plan to consult on the basis that a small fee will be charged to cover the administration costs of registering the activity. This is discussed further in para 1.26. Once that registration has been carried out no further charges are envisaged unless SEPA are required to deal with cumulative impacts.

Diagram 1: Authorisation process

1.9 General binding rules

One key purpose of these new Regulations is to reduce the regulatory burden on operators. We have therefore introduced a form of control that should allow for the prior-authorisation of activities without the need for a full licence. This level of regulation has been devised for controlling relatively simple activities where the environmental impacts are predictable and the mitigation measures can be defined in a common form. General binding rules (GBRs) are sets of mandatory rules that can be applied to a particular activity. The authorisations under GBRs will set out the scope of the activity under the GBR and the conditions that apply to carrying out that activity. These should prove a useful tool for setting standard conditions where impacts on the water environment are predictable and make prior-authorisation less of an administrative burden on all involved. We estimate around 24,000 authorisations could be controlled in this way, and the sort of activities we anticipate can be covered by GBRs are discussed in more detail at Chapter 2.

On receiving an application to register under a GBR, SEPA will carry out a risk assessment, and if content that the risks will be adequately addressed by the terms of the relevant GBR, will register the activity. SEPA will have the discretion to issue a different level of authorisation, for instance they may simply register the activity if the conditions set out in the general binding rule are not necessary in that location; or impose licence conditions in particular water bodies where there are greater pressures.

SEPA will be consulting on proposals for their charging scheme later this year but it is currently envisaged that a small fee will be charged to cover the administration costs of registering the activity, and any ongoing costs of monitoring and enforcement.

1.10 Licences

Licences are the most traditional and most stringent method of environmental control. These will continue to apply to those activities of greatest risk, and we currently estimate there will be around 10,000 licences. These will be tailored to the particular circumstances of the activity concerned - its nature, extent and location.

There are several considerations SEPA must take into account when setting licence conditions. These include:

• the need to ensure efficient and sustainable water use; and
• the derogations permitted by the WFD, listed in Schedule 8.

SEPA may also consider:

• the cumulative effects of all controlled activities being carried on in that area; and
• any management agreements between operators (see below).

Once the activity is licensed, any operator may carry out those activities on that site in line with the conditions in the licence. It is anticipated that there will be charges for both administration and on-going monitoring and regulation by SEPA, and SEPA will be consulting on their proposals for charging later this year.

Licences will generally not be time-limited, except perhaps in certain specific circumstances. This is discussed in more detail later

1.11 Management agreements

In setting licence conditions SEPA may also take into account any management agreements between operators ( Regulation 11(5)). These are designed to promote the effective management of a water source where there are multiple users; for example a number of whisky distillers abstracting from the same loch or a number of potato farmers abstracting from the same river. So management agreements may be appropriate where a number of operators in a distinct geographical area wish to work together to co-ordinate their activities to better protect the water environment and their own interests. Examples of possible types of management agreement would be where several water users agree to time their abstractions to ensure they were not all abstracting simultaneously (thus enabling one water user to abstract more at times that the others are not abstracting and so leading to more efficient allocation of available capacity); or contribute to the construction of winter storage facilities that could then support summer abstractions. SEPA would work with water users interested in setting up a management agreement to inform them of the available capacity of the water source and to set licence conditions based on the terms stated in the management agreement.

We would welcome your thoughts on all aspects of the proposals for authorisation outlined in the previous sections.

1.12 Processing times

Regulation 12 sets out the time limits for the authorisation process. SEPA will process applications for registration within 28 days of receiving the application; and will process applications for registration under general binding rules or licences within 4 months of receipt. SEPA will be able to stop the clock if required while it seeks additional information from the applicant. These time-limits will also apply to applications for variations to the authorisation.

If SEPA does not process the application within the prescribed timescale applicants should consider the application rejected. It would then be open to applicants to appeal against this rejection.

We would welcome your views on these proposed procedures.

1.13 Tiers of authorisation - proposed banding

Examples of how the tiers of authorisation might be applied under the various regimes are set out in Diagrams 2-4. You may find it helpful to consider these in conjunction with Chapter 2 which provides additional information on GBRs.

These are provided for guidance only. The risk analysis carried out by SEPA will determine whether it is appropriate for the GBR to apply in the circumstances and location set out in the application. SEPA may be satisfied that registration is all that is required; or if the activity is expected to take place in a particularly sensitive location it may be necessary to set licence conditions.

We would welcome your thoughts on the proposed banding of activities across the tiers of authorisation.

Diagram 2: Proposed tiers of authorisation - building and engineering works

Diagram 3 : Proposed tiers of authorisation - abstractions and impoundments

Diagram 4 : Proposed tiers of authorisation - point source pollution

1.14 General Conditions (Regulations 13 - 15)

There are a number of additional provisions in relation to the processing of authorisations.

• Regulation 13 gives SEPA the power to impose an authorisation where it appears that a controlled activity is being carried on without authorisation.
• Regulation 14 directs SEPA to consider whether any derogations as permitted by Schedule 8 are appropriate. Schedule 8 lists the derogations permitted from the environmental objectives required by Article 4 of the WFD.
• Regulation 14 gives SEPA the power to issue time-limited licences. It should be clearly understood that there is no intention for time-limited licences to become the norm; but it is anticipated that that there may be a limited number of circumstances where such a provision may be useful, for example, where a project or activity is of known duration; or to ensure planned river engineering works are completed before the salmon spawning season.
• Regulation 14 also makes provision so that where authorisation is required for several activities at a single site, a single composite authorisation may be issued in respect of those activities. It is not envisaged that a single licence would be issued to cover all operations by a single operator across Scotland.
• Regulation 15 introduces the concept of 'responsible person' for registration under general binding rules and licences. The 'responsible person' will normally be the person or corporate body who has day-to-day responsibility for the operation. This is necessary to ensure that any appropriate enforcement action can be taken against the correct person. There is an obligation on operators to notify SEPA if there is a change in the 'responsible person', for instance when the site is transferred to a new operator. This process is discussed in more detail later.

We would welcome any thoughts on the provisions outlined under the above Regulations.

1.15 Direct discharges to groundwater (Regulation 16)

Regulation 16 outlines the provisions in respect of direct discharges to groundwater. These are to implement the requirements of Article 11 of the WFD. Types of direct discharge listed in Schedule 4 are permitted in cases where they will not prevent the achievement of environmental objectives. Types of direct discharge listed at Schedule 5 are not permitted under any circumstances.

We would welcome any thoughts on these provisions.

Part 3 - Authorisations

This Part lays out the key steps of the authorisation process. The following regulations give SEPA a wide range of powers which are very similar to those in existing environmental legislation. This will allow SEPA enough flexibility to carry out the regulatory process in order to meet the objectives of the Water Framework Directive, and Scottish Ministers have the clear expectation that SEPA will exercise these powers reasonably and responsibly.

This Part forms the core of the regulatory process and the development of supporting guidance will be of major importance. We propose to include in this guidance criteria for the use of the various powers set out in this Part. However, we do not believe it would be appropriate to set out such criteria in these Regulations, as this would not permit sufficient flexibility.

Ultimately, operators have the right to appeal to SEPA's regulatory decisions made under these Regulations.

We recognise that this is an area of concern for stakeholders and believe this proposal achieves the right balance for both regulators and operators. We would welcome your comments on the proposals.

1.16 Review of authorisations (Regulation 17)

Regulation 17 fulfils a WFD requirement by directing SEPA to review authorisations periodically. It is anticipated that SEPA will carry out a review every 6 years in line with the river basin planning cycle. This Regulation also allows SEPA to carry out reviews at any time, in order to ensure that significant changes to pressures on the water environment can be addressed in a timely manner.

The principles for undertaking such reviews must achieve an appropriate balance between providing certainty for stakeholders and protection of the water environment.

We propose to develop guidance in the practical application of this Regulation.

We would welcome your comments on the proposals, including the content of the guidance produced.

1.17 Variation of authorisation (Regulation 18)

The Regulations allow for SEPA to vary an authorisation at any time if it appears to be necessary. This would typically be if they were concerned that the activity was having a considerable impact on the quality of the water body. Equally, any responsible person (see Regulation 15) may apply for a variation. Such a variation may be to the tier of authorisation (for example, from a GBR to a registration) or, in the case of a licence, to any conditions set under that authorisation.

Regulation 18 sets out the processes which shall apply in those cases.

We propose to develop guidance in the practical application of this Regulation, to ensure the right balance between operator certainty and environmental management is achieved.

We would welcome your comments on the proposals, including the content of the guidance produced.

1.18 Transfer of authorisation (Regulation 19)

As we have previously stated, registrations will be activity-specific so for that level of authorisation there will be no requirement to transfer a continuing activity from one operator to their successor. However for registrations under general binding rules and licences, as previously explained there will be a requirement to identify a 'responsible person'. It follows that there is a need for SEPA to be aware of any change in that 'responsible person'. This is to enable SEPA to carry out any enforcement action against the appropriate person. Regulation 19 outlines the procedures to be followed where a responsible person wishes to transfer in whole or in part their authorisation to a new responsible person.

We propose to develop guidance in the practical application of this Regulation.

We would welcome any comments on the proposed process.

1.19 Surrender of authorisation (Regulation 20)

The Regulations also include provisions for operators to surrender authorisations where a responsible person ceases or intends to cease carrying on a controlled activity. Regulation 20 outlines the steps to be taken in such circumstances. SEPA has the powers to ensure that such a surrender would not cause harm to the water environment.

This process is very similar to that of other environmental legislation.

We would welcome any comments on the proposed process.

1.20 Revocation of authorisation (Regulation 21)

It is necessary to provide SEPA with the powers to revoke an authorisation, although it is envisaged that this power will be exercised only in exceptional circumstances, as is currently the case under existing environmental regimes. This power would only be exercised where an operator was not complying with the terms of their authorisation and continued to do so following enforcement and prosecution by SEPA. In many circumstances it is more likely that a suspension notice or a works notice would be an adequate method of ensuring any risk of harm to the water environment was prevented.

Under Regulation 21 SEPA has powers to revoke the whole or part of an authorisation. In the revocation notice, SEPA must state;

• the extent to which the authorisation will be revoked; and
• the date on which the revocation shall have effect (at least 28 days after the notice has been served).

Currently the draft Regulations provide SEPA with this power. However, alternatively, this power could be vested in Scottish Ministers.

We would welcome any comments on the options, and on the proposals as drafted.

1.21 Controls over SEPA's own activities

This is an appropriate point to consider the wider issue of controls over SEPA's own activities, such as the installation of monitoring equipment, which may impact on the water environment. By law SEPA may not authorise its own activities. Moreover under the provisions of the WEWS Act SEPA is required to exercise its functions so as to secure compliance with the requirements of the WFD.

However, an alternative option might be that Scottish Ministers should be the competent authority for authorising SEPA's own activities.

We would welcome your thoughts on this matter.

Part 5 - Enforcement

1.21 Enforcement notices and powers of entry (Regulations 22 - 28)

SEPA has a duty to monitor compliance with the provisions of the Regulations ( Regulation 22). We need to provide SEPA with a range of tools to enable them to make the regulatory regimes work. This section makes provision for a range of enforcement powers to enable appropriate action to be taken in cases where operators are not complying with the conditions of their authorisation. Such enforcement will be carried out through the use of notices. The Regulations provide for the use of enforcement notices, suspension notices and works notices. The enforcement notices and suspension notices and powers of SEPA to prevent or remedy harm to the water environment are based upon existing provisions of other environmental regimes, while the works notices are based upon CoPA legislation.

• Enforcement notice ( Regulation 23). If SEPA is of the opinion that a water user is contravening their authorisation, they may issue an enforcement notice outlining the remedial action that must be taken, and the date by which that action must be carried out.
• Suspension notice ( Regulation 24). If SEPA is of the opinion that the carrying on of a controlled activity involves a risk of serious harm to the water environment, they may issue a suspension notice indicating that the activity should cease until the risk of serious harm has been satisfactorily addressed. This applies whether or not there is compliance with the conditions of the authorisation.
• Works notice ( Regulations 25 - 26). If SEPA is of the opinion that the carrying on of a controlled activity has caused, is causing or is likely to cause harm to the water environment, they may issue a works notice specifying the work that must be undertaken to remedy this and the date by which that work must be carried out.

In order to determine whether compliance is being achieved SEPA may require access to premises for monitoring purposes. Regulation 27 lays out the conditions under which SEPA will have powers of entry and under which SEPA may authorise other persons to enter premises; and makes provision for compensation where appropriate. This is mainly based on the provisions of section 108 of the Environment Act 1995, but also includes provisions from the Natural Heritage (Scotland) Act 1991, and the Rivers (Prevention of Pollution) (Scotland) Acts 1951 and 1965.

Regulation 27 also sets out the conditions under which SEPA will have powers of entry to install apparatus to allow it to carry out its duty under the WEWS Act and Regulation 22, to monitor the status of the water environment generally.

Regulation 28 enables SEPA to seek enforcement action through the courts where necessary.

We would welcome your comments on the provisions for enforcement powers.

Part 6 - Information and publicity

1.22 Information, public register and advertising requirements (Regulations 29 - 34)

This section includes a range of provisions relating to information and publicity requirements and are largely modelled upon the Pollution Prevention and Control (Scotland) Regulations 2000.

Regulation 29 gives Scottish Ministers and SEPA powers to obtain information by serving an 'information notice' about the carrying out of activities or functions under these Regulations. This requires information to be produced in line with the requirements set out in the notice, including such information that it would be reasonable for that person to obtain for the purposes of complying with the notice.

Regulations 30, 31 and 32 require SEPA to maintain a public register of all activities authorised under these Regulations. It is proposed that the register should reflect all information provided in the application for authorisation, unless it is

• affecting national security, or
• commercially confidential.

SEPA is also required to

• make sure that the register is available, free of charge, at all reasonable times to the public;
• provide copies of entries in the register to the public at a reasonable charge;
• maintain the register in the form it considers appropriate.

Regulation 33 sets out procedures regarding the advertisement of an application for authorisation and states the time limits for each stage in the process. This enables the public to be aware of proposed activities and to make representation to SEPA in connection with those proposals. SEPA must consider those representations in its consideration of the application.

The Scottish Ministers and SEPA are required by Regulation 34 to consult all interested parties in connection with the exercise of their functions under these Regulations.

We would welcome any comments on the processes outlined in this Part.

Part 7 - Offences

1.23 Offence provisions and proceedings (Regulations 35 - 38)

This section outlines the various offences under the Regulations and makes provisions for addressing these.

Regulation 35 lists the various offence provisions. These cover the following:

Regulation 35 also sets out penalties for those committing an offence including;

• a fine not exceeding £20,000, or
• imprisonment for a period not exceeding 6 months, or in certain cases, 5 years; or
• both;

and in the case of a continuing offence, to a further daily fine.

This regulation also identifies who shall be treated as liable in the case of corporate bodies or partnerships. There is also provision for third parties to be charged and convicted where that person is responsible for the offence.

Regulation 36 sets out provisions in respect of admissibility of evidence modelled upon the Pollution Prevention and Control (Scotland) Regulations 2000.

Regulation 37 is based on Section 30I of the Control of Pollution Act 1974 and lists the circumstances where discharges authorised under other licensing regimes will not be treated as offences under these Regulations, ie if the discharge is made in accordance with -

• an authorisation for a prescribed process designated for central control granted under Part I of the Environmental Protection Act 1990;
• the operation of an installation or mobile plant in accordance with a permit granted under the Pollution Prevention and Control (Scotland) Regulations; or
• an activity authorised by a waste management or disposal licence, under the Waste Management Licensing Regulations 1994.

Regulation 38 (based on the Pollution Prevention and Control (Scotland) Regulations 2000) sets out the power of the court to order that the offence is remedied.

We would welcome your comments on the proposed offences regime.

Part 8 - Appeals

1.24 Appeals procedures (Regulation 39)

In the longer term the implementation of the proposed river basin planning process may require a new type of environmental appeals system to be introduced, perhaps more akin to that in place for the planning system. In addition, the Executive is currently carrying out a review of environmental appeals processes. This may recommend changes to existing procedures.

Meanwhile the introduction of these Regulations in 2005 requires a simple and efficient appeals process to be put in place for handling any appeals against the initial tranche of SEPA's regulatory decisions.

We are therefore proposing that in this first phase of implementation, appeals will be handled by the Scottish Ministers. The draft Regulations, which set out our proposals for such a system, are modelled upon the Pollution Prevention and Control (Scotland) Regulations 2000.

We would welcome your comments on the appeals process proposed for this first phase of implementation.

Part 9 - General

1.25 Application to the Crown and notice provisions (Regulations 40 - 41)

Regulation 40 (replicating provisions in the Pollution Prevention and Control (Scotland) Regulations 2000) outlines general provisions in respect of these Regulations as they apply to the Crown.

Regulation 41 (replicating provisions in the Pollution Prevention and Control (Scotland) Regulations 2000) makes various provisions in respect of the service of notices.

Schedules 1 - 10

1.26 Schedule 1 - Charging Scheme

The Regulations make provisions for SEPA to introduce a charging scheme in respect of costs incurred in carrying out its functions under the WEWS Act and these Regulations.

Under Schedule 1 of the Regulations SEPA may impose charges for:

• the application for an authorisation
• the grant or variation of an authorisation,
• the subsistence of an authorisation,
• the transfer of an authorisation,
• the surrender of an authorisation,
• the revocation of an authorisation;
• the issue of notices.

There is also provision for SEPA to recover the costs of activities such as monitoring carried out on their behalf by third parties.

The provisions for the charging scheme adopt the principle that those persons whose activities impact on the water environment should bear the costs of SEPA's intervention. The charging scheme will be designed to facilitate appropriate cost recovery which promotes environmental protection without increasing the administrative burden on operators or regulators. SEPA is currently developing proposals for a charging scheme in line with the provisions of Schedule 1. They have set up a stakeholder group to participate in the development of this scheme, and they will consult on these proposals later this year.

Ultimately Scottish Ministers will take decisions on proposals for the charging scheme.

This Schedule is partially based on section 41 of the Environment Act 1995, whilst the principles for cost recovery stem from Article 9 of the Water Framework Directive.

We would welcome comments on the principles underpinning the charging scheme.

1.27 Schedule 2 - General Binding Rules

Schedule 2 sets out general binding rules for the activities discussed in Chapter 2; column one defines the activity falling under the scope of the GBR, while column two sets out the rules that are to be applied to that activity.

1.28 Schedule 3 - List of main pollutants

Schedule 3 is a non-exhaustive list of the main unauthorised pollutants controlled by these Regulations, referred to in Regulations 3(1) and 4(4).

1.29 Schedule 4 - Authorised direct discharges to groundwater

Schedule 4 lists those discharges, referred to in Regulation 16(1), that can be authorised by SEPA, provided they do not prevent the achievement of the environmental objectives, or result in the discharge of a substance listed in Schedule 5.

1.30 Schedule 5 - Unauthorised discharges to groundwater

Schedule 5 lists families or groups of substances, referred to in Regulation 16(2) that cannot be directly discharged into groundwater.

1.31 Schedule 6 - Issue of warrants

Schedule 6 sets out the process, referred to in Regulation 27, by which a sheriff or justice of the peace may grant SEPA, or any other person authorised by SEPA, entry to premises.

1.32 Schedule 7 - Procedures in connection with appeals to Scottish Ministers

Schedule 7 sets out the procedures, referred to in Regulation 39, for appealing against a SEPA decision to Scottish Ministers. This is largely based on the Pollution Prevention and Control (Scotland) Regulations 2000. Key provisions include procedures for notices of appeal, hearings, representations and determinations and timescales for the various steps in those processes.

1.33 Schedule 8 - Derogations permitted under Article 4 of the Directive

Schedule 8 reflects the derogations permitted by WFD to set less stringent environmental objectives, to allow the temporary deterioration of a water body and to fail to achieve good groundwater status, good ecological status or, where relevant good ecological potential or the prevention of deterioration. These are referred to in Regulations 11(3) and 14(1).

1.34 Schedule 9 - Compensation for grants of rights

Schedule 9 sets out the procedure for claiming compensation under Regulation 26 (persons on whom works notices are served).

1.35 Schedule 10 - Register

Schedule 10 sets out the content of the register to be maintained by SEPA under Regulation 30.

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