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Controlled Activities Regulations

CHAPTER 2: GENERAL BINDING RULES

As outlined in the previous chapter, GBRs are intended to ensure the effective regulation of certain activities without the need for a full licence, thus minimising the regulatory burden on operators. On receiving an application to register under general binding rules, SEPA will carry out a risk assessment. If controls are not necessary, they will merely register the activity. If they are content that the risks will be adequately addressed by the terms of the relevant general binding rule, they will register the activity under that GBR. If they think that further controls are necessary they will consider setting licence conditions.

In developing GBRs we are constrained by legal requirements. We had planned to introduce sufficient flexibility into the Regulations to permit SEPA to set upper and lower thresholds for GBRs depending on the impact the activity would have in that specific location. However the legal basis for drawing up GBRs does not allow for this degree of flexibility - any threshold must be set down in the legislation. We have therefore devised a system whereby SEPA will have the discretion to issue a different level of authorisation, depending on the outcome of the risk assessment; 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.

There are a number of draft GBRs included in Schedule 2 to the Regulations. We envisage that further GBRs will be developed over time; for example we are currently developing a GBR on the drilling and test pumping of new boreholes. There may also be scope for developing GBRs in respect of particular industries or sectors. Any future proposals for GBRs will be subject to full consultation.

The discussions set out below aim to describe the circumstances in which a GBR would most likely be appropriate, within the context of the various levels of authorisation.

We would welcome your thoughts on the principles of introducing GBRs.

The GBRs currently proposed cover the following activities:

These draft GBRs are inevitably technical in nature. SEPA propose to develop a range of guidance leaflets to assist operators in understanding and complying with the provisions of the GBRs.

We would greatly welcome your thoughts on the specific proposals discussed in more detail below, and on ways in which these might be made more user-friendly.

Building and engineering

2.1 Croys

This proposed GBR covers an activity which is common for fisheries management. Croys are constructed in river channels to create bed scour and form a holding area for fish. If they are constructed in inappropriate locations, or at a scale disproportionate to the river channel they can seriously affect the integrity and stability of river systems. This GBR sets conditions on the placement of croys within the river system and their scale in relation to the channel width and depth.

On receiving an application to register under the GBR, SEPA's risk analysis would determine whether a GBR was the appropriate level of authorisation.

2.2 Ditch clearing, dredging and desilting activities

Ditch clearing, dredging and desilting are common activities in rural areas. The activity is largely undertaken to improve the hydraulic efficiency of the watercourse and therefore, to facilitate drainage of adjacent lands. Ditching has the potential to release large volumes of fine sediments, which in turn can impair the ecological quality of downstream reaches. In addition, the ecological quality of the watercourses where the activity is undertaken can be significantly damaged.

We propose that the scale and naturalness of the watercourse being 'maintained' is used as the primary driver for determining the level of regulation, as follows:

• De minimis (no requirement for SEPA authorisation) - watercourses not appearing on the 1:50,000 scale digital rivers network produced for the centre for Ecology and Hydrology, and where previous straightening/canalisation/ditching had occurred
• GBR - watercourses less than 1m in width and where previous straightening/

canalisation/ ditching had occurred

• Licence - all other ditch clearing, dredging and desilting activities.

On receiving an application to register under the GBR, SEPA's risk analysis would determine whether a GBR was the appropriate level of authorisation.

2.3 Boulder placement for fisheries enhancement

This GBR covers an activity that is common for fisheries management. Boulders are placed in river channels to create holding places for fish. In environments where boulders do not form a significant part of the natural channel substrate, the placement of boulders for fisheries management can have the following impacts:

• potential to raise water surface elevations (through a decrease in conveyance capacity and increase in hydraulic roughness)
• reduction in physical habitat in the natural bed substrate available for fish, invertebrates and aquatic plants
• potential to generate scour of both the bed and channel banks through local acceleration of flow

Boulders that are placed too close to channel banks, or at a density or size disproportionate to the river channel can seriously affect the integrity and stability of river systems. This proposed GBR sets conditions on the placement of boulders within the river system and their scale in relation to the active channel width and bank height.

On receiving an application to register under the GBR, SEPA's risk analysis would determine whether a GBR was the appropriate level of authorisation.

2.4 Gravel extraction from dry gravel beds of watercourses

This GBR is intended to control the common practice of landowners removing gravel and sand from dry river beds to allow small scale road repair etc. This activity can damage sensitive habitats for a range of species, as well as impacting the integrity (and potentially the stability) of the river system through disrupting the natural processes of sediment transport.

The volume of gravel or sand removal allowed under the terms of this GBR is based on the width of the river. This is used as a surrogate for the volume of 'available' sediment transported by the river.

One of the critical conditions is that the median size of the material removed should not be greater than 40mm - if the material is greater than this size then a licence may be required. On receiving an application to register under the GBR, SEPA's risk analysis would determine whether a GBR was the appropriate level of authorisation.

2.5 Bank reinforcement

The structure and condition of the bank zone is a key component of river ecosystems as defined by the WFD. Bank reinforcement is one of the more common forms of engineering undertaken in river channels. Carried out inappropriately, it can have serious consequences for the integrity of river systems and their ecological status.

The impact of bank reinforcement works is dependant on technique, scale and site sensitivity. Harder engineering techniques, such as placed stone, gabion baskets, and sheet piling, have the greatest impact on bank condition. In addition, the size of the works in relation to the size of the river is directly related to effect on the integrity of the river system and its natural processes. Therefore, we propose to use the following hierarchy of thresholds, based on technique and scale:

• Registration - soft techniques such as willow spiling and geotextile matting, and any unconsolidated hard material over less than 1 active channel width.
• GBR - all unconsolidated hard reinforcement (ie boulders and rip rap) between 1 and 3 active channel widths.
• Licence - all hard unconsolidated hard reinforcement greater than 3 active channel widths, all solid reinforcement regardless of dimension, including sheet piling, concrete, placed stone and gabion baskets.

On receiving an application to register under the GBR, SEPA's risk analysis would determine whether a GBR was the appropriate level of authorisation.

2.6 Pipeline or communication cables crossings

Pipeline or cable crossings of inland waters can seriously impact upon the water quality, morphology and ecology of those waters. There are generally three subterranean methods of crossing waters though in some situations a fourth method, aerial bridging, may be utilised. The proposed level of regulation proposed has been set based on the technique used:

• Registration - horizontal direct drilling (boring under the watercourse).
• GBR - open cut isolated crossing (only used in small watercourses - where the flow is temporarily diverted).
• Licence - open cut in-stream crossing (where work is undertaken in the wet).

On receiving an application to register under the GBR, SEPA's risk analysis would determine whether a GBR was the appropriate level of authorisation.

2.7 Open channel watercourse diversions

Temporary river and stream diversions are often required to facilitate work on infrastructure located in or near watercourses. By their very nature, they have the potential to seriously impact the ecological status of inland waters. However, provided the length of time required for the diversion is short (less than 10 days), it is felt that the risk to ecological quality can be managed through the use of a GBR.

It is expected that where longer diversions are required (greater than 10 days), a licence to carry out the works may be required. On receiving an application to register under the GBR, SEPA's risk analysis would determine whether a GBR was the appropriate level of authorisation.

2.8 Bridging culverts

The construction of structures crossing watercourses (bridges, culverts and causeways) is one of the more common forms of river engineering. They have the potential to impact the ecological quality of rivers by disturbing the condition of the bank zone, the structure and substrate of the channel bed, the natural processes of sediment transport and the dynamics of high flow events (all important components of ecological quality defined by WFD).

The level of regulation proposed is determined based on type of crossing structure and its scale.

We expect that the following circumstances would only require registration - permanent bridges provided they span the active channel width and bank zone, and do not involve any permanent structure in the active channel or bank zone; and temporary crossing structures which are installed for a period of up to and including one year will be subject to registration provided they comply with certain minor conditions.

Where the temporary or permanent watercourse crossing structure does not meet the above GBR or registration conditions it is likely that a licence would be required.

On receiving an application to register under the GBR, SEPA's risk analysis would determine whether a GBR was the appropriate level of authorisation.

2.9 Vegetation removal and management

The GBR places controls on the removal and management of bank and in-stream vegetation. The removal of bank vegetation poses a significant risk to the structure and condition of the bank zone, which is a key component of ecological quality as defined by WFD. In-stream vegetation is also defined in the WFD as a key component of river ecosystems. In addition, the accumulation of woody debris and associated organic litter and detritus is an important element of river ecosystems, supporting a range of aquatic plant and animal species, and providing important nutrient cycling functions. Accumulations of woody debris also provide important sediment storage and stability functions for river channels.

The proposed GBR recognises the need for vegetation management for the purposes of flood management, protection of infrastructure and navigation, and for the management of nuisance species. In all other cases, the proposed rule would limit the amount of vegetation clearance allowed and restrict the removal of mature bank trees.

This GBR would apply to the management of scrub, shrubs, saplings and trees alongside watercourses over 2m in width; controls would be not be applied to watercourses less than 2m wide, and no registration would be necessary. Where the above GBR conditions cannot be satisfied, it is likely that a licence would be required. On receiving an application to register under the GBR, SEPA's risk analysis would determine whether a GBR was the appropriate level of authorisation.

Abstractions

2.10 Abstractions: >10 & <30m3/day; >30 & <60m3/day; and >60 & <100m3/day

We propose that the abstraction GBRs cover small to intermediate scale abstractions to ensure that SEPA are aware of them and so can plan and, where necessary, avoid the risk of cumulative impacts that might be caused by a cluster of similar sized activities.

The main requirement under the two higher levels of abstraction would be for the water user to meter and record the volumes he is abstracting. This data would have to be reported to SEPA on an annual basis.

If the abstractor wished to move their abstraction, change how they take the water, or increase their use outside of the band in which they have registered then they would have to inform SEPA ahead of any changes. SEPA would then be in a position to consider this change within the context of other existing local water uses.

There is also a clause to require that the abstractor operates efficiently, taking no more than he actually needs, and to take reasonable steps to ensure that leakage from any equipment or pipe work is minimised.

On receiving an application under this GBR, SEPA's risk analysis would determine whether a GBR was the appropriate level of authorisation.

Impoundments

2.11 Unmanaged weirs between 0.3m and 1m high

This proposed GBR is intended to ensure that the free passage of fish and other forms of aquatic life are not restricted by the design or operation of weirs used for maintaining water levels upstream. One example would be a passive weir used to maintain a minimum depth of water upstream for navigation.

Weirs that are either associated with an abstraction, or where the water level upstream can be controlled, are not covered by this GBR. The potential impacts of these types of weirs are greater and so It is expected that these will need to be covered by a licence that deals with the specific issues at each site.

It is expect that only registration would be required for passive weirs less than 0.3m high. On receiving an application to register under the GBR, SEPA's risk analysis would determine whether a GBR was the appropriate level of authorisation.

2.12 The operation of managed lochs

This proposed GBR is intended to avoid the drying up of rivers below small reservoirs and managed lochs due to the use or operation of the site. One example would be a loch that is used for providing freshet flows for fisheries purposes.

The main clause of the proposed GBR is to require the operator to maintain a flow from the loch at all times. This flow should be at least equivalent to the Q95 flow. The Q95 flow is the flow rate that is exceeded for 95% of the time.

The proposed GBR does allow the flow to fall below this rate for the other 5% of the time but during these periods the flow must not fall below the rate at which it would naturally be.

It is expected that unmanaged raised lochs that are not used to make artificial releases and which do not present a barrier to fish passage would only need to be registered.

On receiving an application to register under the GBR, SEPA's risk analysis would determine whether a GBR was the appropriate level of authorisation.

Point source discharges

The level of risk associated with discharges of sewage is dependent on the degree of treatment and the dilution available at the point of discharge. The lowest risk discharges, requiring simple registration, are from a septic tank and properly designed and constructed soakaway serving a single household. The risk of pollution to groundwaters increases considerably for discharges from larger population equivalents. In order to ensure that soil conditions will cope with a larger loading it is necessary to carry out a more detailed site assessment rather than a simple soakaway test. Therefore, it is expected that discharges to soakaway from more than 15 people will require a licence.

2.13 Discharge from passive secondary sewage treatment of a load with a population equivalent of between 15 and 50 persons

Sewage discharges to surface waters, for example a river, loch or coastal waters usually require some form of biological treatment. This may be a passive system such as a septic tank and a reedbed or a sewage treatment plant which requires an energy supply and regular maintenance and replacement of moving parts. A passive system, being energy dependent and less susceptible to wear and tear, is a more sustainable and lower risk option and hence for discharges from small populations, up to 15 persons, it is likely that registration will suffice. It is anticipated that the proposed GBR would apply for those systems serving larger populations for example housing developments, holiday parks or hotels, where a higher level of maintenance is required and the risk of impact is greater.

On receiving an application to register under the GBR, SEPA's risk analysis would determine whether a GBR was the appropriate level of authorisation.

2.14 Discharge from small mechanical sewage treatment plant treating a population equivalent of up to 50 persons

In contrast to passive systems mechanized plants require more regular maintenance and management. Should there be a failure through loss of energy supply or faulty equipment the quality of effluent can deteriorate very rapidly. Therefore, registration under a GBR is considered proportionate to the degree of risk for all population equivalents of up to 50, provided there is significant dilution available in the receiving waters, ie > 200:1. Otherwise it is expected that a licence would be required.

On receiving an application to register under the GBR, SEPA's risk analysis would determine whether a GBR was the appropriate level of authorisation.

2.15 Discharge from a septic tank direct to a watercourse

Discharges direct to surface waters from a septic tank are rarely an acceptable environmental option unless other systems cannot be justified and only then provided there is copious dilution available at the point of discharge. The proposed GBR would apply where the population is no greater than 15 and there is at least 400:1 dilution available in the receiving waters, otherwise it is expected that an application for a licence will be required.

On receiving an application to register under the GBR, SEPA's risk analysis would determine whether a GBR was the appropriate level of authorisation.

2.16 Discharge from a combined storm overflow

Combined storm overflows (CSOs) are features of sewerage networks built to carry foul flows and surface water in the same sewer. The overflow is designed to operate only when flows in the combined sewer exceed a specified rate due to rainfall runoff. The CSO acts as a relief, necessary to prevent flooding of property and other assets. In larger conurbations the sewerage network is extensive and complex modelling is often required to ensure that overflows are designed and constructed such that operation will not result in an unacceptable impact on the receiving waters. In smaller networks, however, where a CSO discharges to waters that are not used for bathing and do not provide shellfish or salmonid fish habitat, provided the CSO meets minimum standards, it could be considered of low risk. Given the large numbers of CSOs across Scotland, we believe that the provision of a GBR for low risk CSOs would provide a uniform and consistent means of authorisation/ regulation for a significant number of such discharges.

On receiving an application to register under the GBR, SEPA's risk analysis would determine whether a GBR was the appropriate level of authorisation.

The proposals and thresholds outlined above form a useful starting point for the introduction of a middle tier of authorisation, but it is also clear that SEPA's risk assessment will be a key element of this process. We would welcome your comments on the proposals for the various general binding rules set out in this section; and thoughts on other activities which might appropriately be controlled in this manner.

2.17 Oil Storage Controls

Improper oil storage constitutes a significant risk to the water environment and is a major source of oil-related water pollution. Pollution incidents have been mainly a result of inadequate storage and equipment, leaks from unbunded or damaged tanks or pipes, vandalism and poor management. It is important that we introduce proper controls on the storage of oils to reduce these risks.

In 2003 we consulted on a set of draft Control of Pollution (Oil Storage)(Scotland) Regulations that would have required new and existing above ground storage facilities to meet specific design standards, similar to existing controls in England. However, with the introduction of these Regulations, we now believe it is more appropriate to achieve this objective through a GBR.

It is proposed that this GBR will apply to anyone who has custody or control of oil storage facilities, with certain exceptions. We propose that it will include both the provisions in regard to the design of tank facilities that we consulted upon last year and changes that we have taken onboard as a result of the consultation (significant changes are listed below; others are minor drafting revisions). Indeed, consulting again on the provisions in the form of a GBR gives stakeholders an opportunity to comment on the suggested revisions.

By including oil storage within the scope of these Regulations, oil storage facilities would now require prior-authorisation. We are still determining our policy on how this might work in practice and whether there would be any charge attached. SEPA's risk assessment would be a key element of this process.

We welcome your views on our proposals to implement these provisions under these Regulations and on how any authorisation process could be introduced.

It was originally anticipated that the requirements of the Oil Storage Regulations would come into force 6 months after they had been laid in the Scottish Parliament, with transitional periods for existing tanks. While the Controlled Activities Regulations will not fully come into force until October 2005, we propose that the provisions relating to oil storage are enacted as soon as the Controlled Activities Regulations are made later this year, with transitional periods of two and four years for existing tanks. This will allow us to introduce the new requirements in a timescale similar to that originally anticipated under the draft Oil Storage Regulations.

Changes to the earlier draft proposals

The proposals in the GBR remain largely unchanged from those that we consulted upon in the draft Regulations. However certain changes are proposed as follows:

• The GBR will extend to the water environment as a whole (including groundwater) rather than just to inland and coastal waters. Notice provisions will be more stringent and the penalty provisions will be greater, as these are now set within the Controlled Activities Regulations.
• We have extended the definition of oil to include vegetable oil and oil from plant origin, in addition to mineral oils, but excluding uncut bitumen. A definition of the premises to which the GBR will be applicable is also included.
• We intend to exempt certain oil storage activities from the requirements of the GBR, including those specified in the draft Oil Storage Regulations. This is because these are either controlled under existing legislation (for example Building Regulations in terms of domestic properties with tanks of 2500 litres or less) or where we consider that the nature of the oil stored or the size of the oil container constitutes a minimal risk of pollution to the water environment, providing all necessary prevention measures are followed.

Timetable

Our proposed timescale is:

• New tanks: GBR comes into force immediately
• Existing tanks situated either less than 10 metres from the surface water environment,

or 50 metres from a well or borehole: GBR comes into force 1 January 2006

• All other existing tanks (excluding exemptions): GBR comes into force 1 January 2008.

We would welcome your views on the implementation timetable

The consultation paper on the original draft Oil Storage Regulations is available on the Executive's website at http://www.scotland.gov.uk/library5/environment/pollution.PDF

Your views are welcome on the changes we have made to the draft Oil Storage Regulations.

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