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The Water Environment (Controlled Activities) (Scotland) Regulations 2004: Draft Regulations: Analysis of Responses to the Scottish Executive
Executive Response to the consultation on Controlled Activities Regulations
Introduction
On 19 April 2004, the Scottish Executive launched its consultation paper on Controlled Activities Regulations (CAR) to be introduced under the Water Framework Directive. The consultation paper built on the issues raised in, and responses received to, our two previous consultations.
This Executive response is meant to provide a brief summary of feedback on the results of the consultation, the main issues that have been raised, and to provide information on the next steps.
The number of responses received was encouraging and indicates that there is general support for the Executive's proposals across a wide range of stakeholders, but there are common areas where stakeholders have asked for consideration to be given to making changes. The Scottish Executive is grateful to those who responded to the consultation on the draft Water Environment and Water Services (Scotland) Act 2003 Controlled Activities Regulations. It is also grateful to the internal advisory groups of technical advisers and the National Stakeholder Forum for their valuable assistance in preparing the draft regulations.
In response to this consultation paper the proposals for three tiers of control were again broadly welcomed. However key concerns raised in stakeholders' responses included:
the detail of the draft proposals for registration and general binding rules seemed unduly prescriptive and inflexible;
SEPA's cost projections for implementing the Water Framework Directive gave considerable cause for concern;
the timetable for introducing the Regulations raised some concerns.
We have responded to these points in the following ways:
Registration
The original proposals for registration were based on the need for SEPA to obtain sufficient data to enable them to assess the risk to the environment from cumulative impacts of relatively minor activities. After consideration of the risks, we believe that the greatest cumulative risks are posed by a limited number of activities. We therefore propose to focus on those activities, and remove the requirement to register activities where harm to the environment is considered a very low risk. This principle has been broadly welcomed by key stakeholders.
General Binding Rules
The original thinking behind GBRs was that they would be a simple form of regulation which could be easily applied where mitigation measures were predictable. However in practice these have proved extremely difficult to draft in a way that were sufficiently flexible to apply to a wide range of different circumstances. As a result, neither stakeholders nor regulators were convinced of the usefulness of GBRs. Moreover the requirement to register under a particular GBR appeared to place an unnecessary burden on both stakeholders and SEPA given the relatively moderate risk to the environment.
We have therefore reviewed our thinking on GBRs. We now plan to remove the requirement to register under a GBR; and we are currently carrying out a fundamental re-drafting of all GBRs with a view to introducing very simple general rules which would apply to certain activities in any variety of circumstances. This approach has also been broadly welcomed by stakeholders.
To replace the original proposals for GBRs we are considering introducing Low Risk Licences. These would broadly correspond to the tier of controls originally proposed as GBRs. The advantage of this proposal is that operators would not be subject to such prescriptive controls as proposed in the existing GBRs and SEPA would have an increased degree of flexibility to tailor conditions to specific circumstances. It should be stressed that the use of the term 'licence' does not reflect an increase in control, and that SEPA's intervention would be no greater than that originally envisaged under GBRs. Charges for low risk licences would reflect the level of charge previously proposed for GBRs.
Financial burden
Concern has been expressed throughout this process about the expected costs of SEPA's plans for implementation which will largely be recovered through licence fees. SEPA's original cost estimates of the annual additional work required to implement WFD peaked at over 15 million. We have been working closely with SEPA to produce revised implementation plans, with the aim of reducing both the regulatory and cost burden on stakeholders, whilst achieving effective implementation of WFD. SEPA's estimates of the annual additional cost of implementing the revised plans now peak at around 10-11 million. In addition, in the recent spending review Ministers allocated to SEPA further grant in aid which will further offset that cost. The proposals for streamlining the regulatory burden outlined above should also serve to reduce the administrative burden on operators. Taken together, we believe these proposals will achieve an effective and affordable implementation programme.'
Timing and Legislative Implications
In order to take the time to respond fully to stakeholders' concerns, we have extended the timetable for introducing the new controls by 6 months and now propose to lay the Regulations before Parliament in spring 2005. Stakeholders have welcomed this extension. The Regulations will be subject to affirmative resolution.
Integration with Other Legislation
The Executive welcomed the points raised in respect of integration with other legislation. Work with stakeholders is continuing and it is anticipated that any consequential amendments to existing legislation will be produced by the spring. The Executive will also take forward, via a discussion paper with stakeholders, the designation of responsible authorities.
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