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Controlled Activities Regulations
CHAPTER 4: INTEGRATION WITH OTHER ENVIRONMENTAL LEGISLATION
There are a considerable number of existing pieces of environmental legislation which deal with aspects covered by the new proposals. It will be essential to ensure the new proposals are integrated with any existing legislation. A project is currently in hand to identify all such legislation and draw up proposals for amendments. Much of this is a purely administrative process, but there are several key pieces of legislation where stakeholders will have an interest in the proposals for change. These are outlined below:
- Control of Pollution Act 1974 (CoPA)
- The Groundwater Regulations 1998
- Natural Heritage (Scotland) Act 2003
- The Pollution Prevention and Control (Scotland) Regulations 2000
- Local Water Acts and Water Orders
- Environmental Impact Assessments
4.1 Control of Pollution Act 1974 (CoPA)
Due to the introduction of the point-source pollution regime in the Regulations, it is necessary to consider the amendment or repeal of parts of CoPA.
The relevant Part of the Act is Part II, concerning pollution of water. This covers section 30A to section 56 of the Act. It is envisaged that the provisions of Part II will be repealed, with the exception of section 51, concerning the issue of Codes of Practice in relation to agricultural activities that may affect controlled waters. It is envisaged however, that Part II will remain in force at first, but will be phased out gradually over time, on the introduction of the various obligations in the WEWS Act, and the proposed Regulations. This section should also be read in conjunction with Chapter 3 on transitional arrangements.
Part II applies to the discharge of trade and sewage effluent to controlled waters, whereas the proposed Regulations will apply to the discharge of any substance which is liable to cause pollution of the water environment i.e. where this amounts to a controlled activity.
Under CoPA Part II, SEPA has a duty not to withhold consent unreasonably. In the Regulations it is proposed that there will be a general prohibition on carrying on a controlled activity, without an authorisation from SEPA. SEPA will then be required to authorise activities in accordance with its risk assessment. As a result of this, the procedural, enforcement, and offence provisions of Part II will also be repealed, as we have made appropriate provision for these in the Regulations.
There are powers under Part II to classify controlled waters and to establish and review water quality objectives in classified controlled waters. These powers have been superseded by the duty under the WEWS Act to set objectives and prepare programmes of measures in the River Basin Management Plan. The existing Classification Schemes will remain in force initially but will be phased out in due course on the preparation of the RBMP.
The Scottish Ministers have various other regulation-making powers under Part II, including controlling, and taking precaution against, the pollution of controlled waters. Again it is envisaged that such powers will be superseded by the provisions in the WEWS Act and the proposed Regulations.
We would welcome your comments on the above proposals.
Call-in process
CoPA gives third parties the power to request Scottish Ministers to call in applications for licences to discharge trade and sewage effluent for their own determination and to hold a public inquiry. These provisions allow Ministers to step in to take control of SEPA's regulatory decisions. During the consultation phase prior to the introduction of the WEWS Act, we proposed not to replicate these call-in powers in the new system.
In response some consultees expressed a view that the call-in mechanism was of some value, but most stressed that, if retained, it should only be used for significant cases. We are still giving consideration how best to progress this matter.
4.2 The Groundwater Regulations 1998
The protection of groundwater in Scotland is governed principally by the Groundwater Regulations 1998, which were made in compliance with the Groundwater Directive. The WFD proposes that there should be a Groundwater Daughter Directive and proposals for this Directive will be under consideration in 2004 and 2005. In the meantime there are clear advantages in bringing the provisions of the Groundwater Regulations 1998 into the same framework of authorisations and enforcement tools, and the same charging scheme, as that for other bodies of water. So, in line with the policy outlined in our previous consultation paper, we propose to integrate the requirements of the WFD and the Groundwater Directive into these Regulations. This will simplify the system of regulation and be more cost-effective.
There are still some issues of consistency between the two regimes to be resolved, but in principle we propose to absorb the requirements of the Groundwater Regulations 1998 into these Regulations; and subsequently revoke the Groundwater Regulations in respect of their application in Scotland.
One particular point we need to consider is that the definition of 'pollution' in the WEWS Act is wider than that in the Groundwater Regulations. Another is that, with only limited exemptions, the WFD requires the prohibition of direct discharges of certain substances to groundwater, whereas a number of consents are given at present for such discharges. Thus integrating the two regimes at this time may result in tighter controls over groundwater.
We would welcome any comments on this approach.
4.3 Natural Heritage (Scotland) Act 2003
The implementation of the WEWS Act is an opportunity to consider making changes to the existing drought management system in Scotland. Currently, the Natural Heritage (Scotland) Act 1991 empowers Scottish Ministers to make ordinary drought orders to meet serious deficiencies of water supplies existing or threatened. If this deficiency is likely to impair the economic or social well being of persons in a locality, Scottish Ministers may make an emergency drought order.
Drought Order Regulation
We propose that administration of making drought orders remains with Scottish Ministers. Although SEPA are best placed to judge the situation on the ground, their primary remit is the protection of the water environment. Thus if SEPA were made responsible for making drought orders they would have to take on a function that would mean taking public water supplies before the environment. In this case there would need to be a strong mechanism for appeal to Scottish Ministers in case an abstractor felt aggrieved against a SEPA decision, a possibly lengthy process. However, these decision would have to be taken quickly in view of public health.
We propose that it would be a more practicable option to maintain the existing regime whereby Scottish Ministers consider and make drought orders.
We would welcome your views on these proposals.
Drought Permits
The basic regime for managing drought in England is very similar to that in Scotland; however, there is an additional level whereby the Environment Agency can grant a drought permit to a water company under the Water Resources Act. Drought permits can
- authorise an undertaker to take water from specified sources, or
- modify or suspend restrictions or obligations to which that undertaker is subject relating to the existing abstraction control.
In this case SEPA could manage the relatively less contentious issues of allowing, for instance, a compensation flow to be reduced or a new abstraction to take place for a limited period. This would then leave the more contentious issues of, for example, prohibiting or limiting the use of water for certain purposes for Scottish Ministers to handle under a drought order.
Drought Orders
Another difference in the English system is that drought orders under the Water Resources Act can also be made to other water users, other than the water companies themselves. This power can be essential in times where drought is not just a concern for public water supplies, but also for species living within the water environment, for example when fish life is threatened.
Emergency Drought Orders
No emergency drought orders have ever been made as far as is known. The "extra" test for an emergency drought order is that the deficiency of rain is likely to impair the economic or social well-being of persons in a locality. It is suggested that this could be difficult to prove in practice and that any drought has the potential to impair the economic or social well-being of persons in a locality. The additional powers that an emergency drought order can provide for include prohibiting or limiting the use of water and may allow the use of stand pipes and water tanks. It is suggested that these powers could be added to the existing list of powers for ordinary drought orders. We could then dispense with ordinary and emergency drought orders and have just one level of "drought orders" to meet serious deficiencies of water supplies existing or threatened, where these are due to an exceptional shortage of rain.
We therefore propose to dispense with emergency drought orders and have just one level of drought order.
Drought Plans
In England, the water companies have a statutory duty under the Water Act 2003 for the production of drought plans.
Scottish Water currently has a duty under the Water (Scotland) Act to promote the conservation and effective use of the water resources of Scotland and they are presently in the process of producing drought plans for their strategic sources which they will agree with SEPA, SNH etc. and update when the need arises.
If this was made a statutory duty on Scottish Water it would have to meet formal deadlines and submit plans to SEPA/Scottish Ministers. As well as being an administrative burden it would also mean that SW would not have the flexibility to update drought plans only when necessary.
The autumn of 2003 saw Scotland experiencing one of the driest periods on record which stretched water resources in a number of places. Most of these recovered over the winter period but the experience demonstrated the need to monitor water resources closely, especially during a dry period and take action to safeguard supplies wherever possible. Much work has been done by Scottish Water in conjunction with SEPA to produce a drought plan during this time. This should assist both organisations in the future to agree actions as quickly as possible as it can sometimes be important to act in the shortest possible time. It is suggested that as a drought plan is already being produced, making it a statutory duty should not impose a burden on Scottish Water providing that duty is written appropriately in the light of the current work. Also, it would ensure that such a plan is kept up to date by appropriate periodic reviews.
We would welcome your comments on the above proposals.
4.4 The Pollution Prevention and Control (Scotland) Regulations 2000
The Pollution Prevention and Control (Scotland) Regulations 2000 (the PPC Regulations) control the operation of any installation or mobile plant carrying out any of the activities listed in Part I of Schedule 1 of the PPC Regulations.
Principally, the PPC Regulations cover the following industries:
- energy industries such as power stations and refineries;
- metal processing;
- mineral industries, including glass manufacturing and cement production;
- chemical industries;
- waste management;
- paper manufacturing, textiles, timber, food and drink, and intensive farming.
It is envisaged that where a permit to operate an installation or mobile plant is required under the PPC Regulations, the "pollution" aspects of the activities carried on in the installation or mobile plant (that is, the aspects of those activities that would amount to a controlled activity for the purposes of these proposed Regulations) will be deemed authorised for the purposes of these proposed Regulations, and will therefore not require a separate authorisation under these Regulations. Otherwise, it is envisaged, at least in the short term, that the two regimes will exist separately. We will however, in due course give consideration to the possibility of greater integration of the two regimes, if that is considered necessary and workable.
In addition, the PPC Regulations will be designated as a "relevant enactment" in an Order to be made under section 2 of the WEWS Act. This means that the functions of SEPA under the PPC Regulations, including the granting of permits, will have to be exercised to as to comply with the requirements of the Water Framework Directive. It is on this basis that permits granted under the PPC Regulations, which include controlled activities, can be deemed authorised for the purposes of the proposed Regulations.
We would welcome your comments on the above proposals.
4.5 Water Orders and Water Acts
There are a considerable number of local Water Orders and local Water Acts in respect of abstraction and impoundment works. Water Orders are specific to the public water supply and set out the operational constraints which Scottish Water has to follow - this can be either abstraction limits or compensation flows. Scottish Water has around 800 such Orders, and it is intended that the existing conditions will transfer to the new regime during the transitional period.
Water Acts generally provide rights for hydro-power companies to abstract water for their hydro schemes. We are currently considering the provisions of extant local Water Acts, with a view to repealing any remaining provisions that impose environmental conditions.
We would welcome your views on this approach.
4.6 Environmental Impact Assessments
There are currently a range of environmental regulations in force to meet the requirements of the Environmental Impact Assessment Directive. Of particular relevance in the context of the Water Framework Directive are the Environmental Impact Assessment (Water Management) (Scotland) Regulations 2003.
We are currently considering the extent to which these Regulations deal with projects which fall within the Environmental Impact Assessment Directive, and whether particular provision needs to be made to meet the requirements of that Directive.
We would welcome your views on this approach.
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