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The Water Environment (Controlled Activities) (Scotland) Regulations 2004: Draft Regulations: Analysis of Responses to the Scottish Executive
1. Introduction
The Controlled Activities Regulations Consultation
The Scottish Executive Water Environment Division, Environment and Rural Affairs Department released the consultation paper:
Controlled Activities Regulations: A Consultation for comment in April 2004. The paper describes and invites comment upon the proposed
Water Environment (Controlled Activities) (Scotland) Regulations 2004: Draft Regulations (CARs), developed with assistance from SEPA (the regulator) and stakeholders. The paper represents the third in a series of consultations presenting the Executive's proposals for the implementation of the requirements of the
Water Environment and Water Services (Scotland) Act, 2003 (WEWS). The first consultation papers:
Rivers, Lochs, Coasts: The Future for Scotland's Waters and
The Future for Scotland's Waters - Proposals for Legislation were undertaken prior to the designation of river basin districts in 2003.
Legislative Background
WEWS and CARs both aim to transpose the objectives of the Water Framework Directive (WFD, 'the Directive') into Scottish law, with WEWS being the primary and CARs the secondary transpositions. The Directive has the main objectives of:
protecting, enhancing and restoring Europe's waters, to achieve 'good' status by 2015;
establishing a baseline of no deterioration; and
encouraging the sustainable use of water resources and the water environment.
WEWS and the draft CARs therefore aim to
protect and improve the ecological status of Scotland's water environment, whilst recognising the need to safeguard
the social and economic interests of those who depend on that environment. In order to achieve this balance, the Executive believes it is necessary to introduce a new system of
simple and flexible controls based on an assessment of risk posed to the water environment. It has been recognised that such controls must be
selective, proportionate and streamlined, as they will be a key tool in the achievement of the objectives set by the WFD.
As discussed within the earlier consultations, and as stakeholders have indicated, it is preferable for both business and regulators to phase the changes in over a longer time period than the 2012 deadline prescribed by the Directive. By introducing the draft CARs and the associated new system for comment, Scotland leads the rest of Europe in the transposition process.
The Consultation Paper
The CARs consultation paper has focused on three key aspects of implementation:
the introduction of controls over activities affecting the water environment;
transitional arrangements; and
links with existing environmental legislation.
These three aspects form the three main chapters of the consultation document, with additional chapters introducing the aims and objectives of CARs and describing aspects of the controls in additional detail. The opinions of consultees in relation to all aspects of the proposed regulations and methods of control are sought throughout the paper.
Table 1 shows the overall structure of the paper, relating each section to the relevant controlled activities regulation.
There were some minor errors within the structure of the consultation document. These are as follows.
There are two sections 1.7.
There are two sections 1.21.
There is no Part 4 in Chapter 1.
To avoid confusion during the analysis and reporting stages of the consultation, it was decided that the suffix "(a)" and "(b)" would be applied to sections 1.7 and 1.21. The absence of a Part 4 was not considered to have any implications on the consultation exercise.
Table 1: The Structure of the Consultation Document
Chapter | Title | Part | Title | Section | Title (issue / topic) | Regulation/s |
1 | Proposed Regulatory Regimes | 0 | | 1.1 | Introduction | |
| | | | 1.2 | Underpinning Principles | |
| | | | 1.3 | Timing | |
| | 1 | General | 1.4 | General Provisions | 1 to 3 |
| | | | 1.5 | Modifications of the Act | 4 |
| | | | 1.6 | Exempt Activities | 5 |
| | | | 1.7 (a) | Prohibition | 6 |
| | 2 | Applications and Procedure | 1.7 (b) | General Procedures | 7 to 12 |
| | | | 1.8 | Registrations | |
| | | | 1.9 | General Binding Rules | |
| | | | 1.10 | Licences | |
| | | | 1.11 | Management Agreements | 11(5) |
| | | | 1.12 | Processing Times | 12 |
| | | | 1.13 | Tiers of Authorisation - Proposed Banding | |
| | | | 1.14 | General Conditions | 13 to 15 |
| | | | 1.15 | Direct Discharges to Groundwater | 16 |
| | 3 | Authorisations | 1.16 | Review of Authorisations | 17 |
| | | | 1.17 | Variation of Authorisation | 18 |
| | | | 1.18 | Transfer of Authorisation | 19 |
| | | | 1.19 | Surrender of Authorisation | 20 |
| | | | 1.20 | Revocation of Authorisation | 21 |
| | | | 1.21 (a) | Controls Over SEPA's Own Activities | |
| | 5 | Enforcement | 1.21 (b) | Enforcement Notices and Powers of Entry | 22 to 28 |
| | 6 | Information and Publicity | 1.22 | Information, Public Register and Advertising Requirements | 29 to 34 |
| | 7 | Offences | 1.23 | Offence Provisions and Proceedings | 35 to 38 |
| | 8 | Appeals | 1.24 | Appeals Procedures | 39 |
| | 9 | General | 1.25 | Application to the Crown and Notice Provisions | 40 to 41 |
| | | Schedule 1 | 1.26 | Schedule 1 - Charging Scheme | |
| | | Schedule 2 | 1.27 | Schedule 2 - General Binding Rules | |
| | | Schedule 3 | 1.28 | Schedule 3 - List of Main Pollutants | |
| | | Schedule 4 | 1.29 | Schedule 4 - Authorised Direct Discharges to Groundwater | |
| | | Schedule 5 | 1.30 | Schedule 5 - Unauthorised Discharges to Groundwater | |
| | | Schedule 6 | 1.31 | Schedule 6 - Issue of Warrants | |
| | | Schedule 7 | 1.32 | Schedule 7 - Procedures in Connection with Appeals to Scottish Ministers | |
| | | Schedule 8 | 1.33 | Schedule 8 - Derogations Permitted Under Article 4 of the Directive | |
| | | Schedule 9 | 1.34 | Schedule 9 - Compensation for Grants of Rights | |
| | | Schedule 10 | 1.35 | Schedule 10 - Register | |
2 | General Binding Rules | | Building and Engineering | 2.1 | Croys | |
| | | | 2.2 | Ditch Clearing, Dredging and Desilting Activities | |
| | | | 2.3 | Boulder Placement for Fisheries Enhancement | |
| | | | 2.4 | Gravel Extraction from Dry Gravel Beds of Watercourses | |
| | | | 2.5 | Bank Reinforcement | |
| | | | 2.6 | Pipeline or Communication Cables Crossings | |
| | | | 2.7 | Open Channel Watercourse Diversions | |
| | | | 2.8 | Bridging Culverts | |
| | | | 2.9 | Vegetation Removal and Management | |
| | | Abstractions | 2.10 | Abstractions >10 and <30 m
3/day; >30 and <60 m
3/day; and >60 and <100 m
3/day | |
| | | Impoundments | 2.11 | Unmanaged Weirs Between 0.3 m and 1 m high | |
| | | | 2.12 | The Operation of Managed Lochs | |
| | | Point Source Discharges | 2.13 | Discharge from Passive Secondary Sewage Treatment of a load with a Population Equivalent of Between 15 and 50 Persons | |
| | | | 2.14 | Discharge from Small Mechanical Sewage Treatment Plant Treating a Population Equivalent of up to 50 Persons | |
| | | | 2.15 | Discharge from a septic tank direct to a watercourse | |
| | | | 2.16 | Discharge from a Combined Storm Flow | |
| | | | 2.17 | Oil Storage Controls | |
3 | Transitional Arrangements | | | 3.1 | Timetable | |
| | | | 3.2 | Point Source Discharges | |
| | | | 3.3 | Abstraction and Impoundment | |
| | | | 3.4 | Building and Engineering Works | |
4 | Integration with Other Environmental Legislation | | | 4.1 | Control of Pollution Act 1974 (CoPA) | |
| | | | 4.2 | The Groundwater Regulations 1998 | |
| | | | 4.3 | Natural Heritage (Scotland) Act 2003 | |
| | | | 4.4 | The Pollution Prevention and Control (Scotland) Regulations 2000 | |
| | | | 4.5 | Water Orders and Water Acts | |
| | | | 4.6 | Environmental Impact Assessments | |
Annex A: Draft Controlled Activities Regulations
Annex B: Interim Regulatory Impact Assessment |
Aims of the Consultation
The main aim of the consultation paper was to present the draft CARs to stakeholders from private and public organisations and individuals and to invite comment on the structure, format and objectives of the proposed legislation.
The Consultation Process
The Executive invited opinions on the draft regulations from a range of organisations and individuals, both from the National Stakeholder Forum and the Executive's main contacts database. A total of 2000 consultation papers were distributed on the 19
th April 2004, allowing a 12 week response period ending on the 9
th July 2004. The consultation was also made available on request.
Opinions were also sought from a wider public audience through the placing of the paper and invitations to comment on the Executive's website.
165 responses were received in total, including 14 from the core respondee group: the National Stakeholder Forum.
Additional information regarding the aims and objectives of the draft CARs and the process of consultation may be referred to within pages 1 to 7 of the consultation paper (
paper 2004/8).
The Analysis and summary of Responses
It is standard Executive practice for responses to consultations to be summarised and for summaries to be made publicly available. Individual responses are also made available in the Executive's library, unless a respondent has sought confidentiality (see below). This information was logged during the processing of responses. Respondees were also assigned a reference number and grouped under ten sector or group headings to aid both in the interpretation of opinions and views, and in the identification of sectors that have provided minimal or zero response ('silent voices', see
Chapter 3: The Consultees and Responses for additional details). The ten sectors are as follows.
MSP/ MPs
Regulator / Regulatory Bodies
Local Authorities
Community Councils
Community and Activity Groups
Research and Teaching Institutions
Industry
Agriculture
Fisheries Representatives
Others e.g. consultants, roads authorities
Additional details regarding the analysis and summary process are included within
Chapter 2:
The Summary Report.
Data Protection
Responses, and the information contained therein, have been handled according to the requirements of the Data Protection Act. The confidentiality status of each response was checked through the provision of confidentiality status reports with each consultation document. Where forms were not returned, and no permission was given, confidentiality has been assumed and the responses treated appropriately.
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