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The Water Environment (Controlled Activities) (Scotland) Regulations 2004: Draft Regulations: Analysis of Responses to the Scottish Executive
5. Additional Comments
Introduction
There are a number of additional issues being raised by consultees. The key issues that are common to a number of different responses are as follows.
Competitive disadvantage.
The incorporation of regulations and procedures for emergency works and emergency preparatory works, which has been highlighted as being absent from the regulations and consultation document in their current form.
SEPA's capacity and capabilities in relation to fulfilling their proposed responsibilities.
The integration of CARs with other legislation and regulations not included within the consultation document.
Liability and compensation.
The Controlled Activities Consultation process.
Competitive DisAdvantage
Summary of Comments
Consultees, whilst generally supporting the aims and objectives of the WFD, WEWS and the draft CARs, have raised concerns regarding the competitive disadvantage of operating within Scotland under the new system in advance of the rest of Europe. Disadvantages are mainly seen as being related to the cost burden of introducing new controls together with the administrative costs and charges associated with the procedures for authorisation of controlled activities.
Emergency Works and Emergency Preparatory Works
Summary of Comments
Concerns are raised in a number of responses regarding the apparent lack of regulations, procedures and guidance for situations where emergency works are required, for example where trees have fallen, banks have collapsed and removal is required to minimise impacts to watercourses and supported fisheries. It is suggested that either a clause needs to be included, for example, in each of the GBRs, or that an overall emergency clause be included within the regulations.
One consultee has also raised the issue of emergency preparatory works, such as oil spill response drills, which involve temporary impacts to the water environment (e.g. through the deployment of sandbags and booms). The point is made that the authorisation process and tier of control for such drills needs to be kept as simple as possible to ensure that companies are not incentivised to reduce the occurrence or scale of such exercises.
SEPA's Capacity and Capabilities
Summary of Comments
A large proportion of the consultees raise concerns or highlight issues associated with the implications of SEPA's proposed new responsibilities with regard to their:
capacity in terms of staff to administer and regulate CARs; and
capabilities, in terms of available and suitably qualified specialists.
It is acknowledged by consultees that the administrative burden upon SEPA will be large, and that the timescales for introduction of the new system are relatively short. In the past SEPA has had a number of problems meeting deadlines due to capacity issues. It is accepted that SEPA will increase its capacity to accommodate the workload, but consultees have concerns as to whether SEPA will recruit sufficient numbers of personnel, and whether they can recruit and train staff in advance of CARs implementation.
With regard to the SEPA's capabilities, there are two main concerns. The first is that consultees understand the need for the regulating body to be able to balance environmental, social and economic considerations. Some consultees have doubts that this can be achieved by SEPA. The second is associated with experience and specialisms. Many consultees also have had direct experience of staff knowledge and abilities within the organisation being subject to a level of variability. Personnel are sometimes lacking in knowledge of the local environmental sensitivities, and specialists, for example, hydrologists, geologists and ecologists, are often not available due to constraints of location and workload.
Consultees request assurance from the Executive and SEPA themselves that the organisation will have both the capacity and expertise to fulfil their new role in the assessment of controlled activities and achieve the correct balance between environmental protection, improvement, social development and economic strength.
Integration with Other Legislation and Regulations
Introduction
With the introduction of all new regulations there are possibilities of conflicts, overlaps and shortfalls between the new and existing legislation. This is especially complex when there are a number of different pieces of existing legislation, as is the case with environmental policy at present within Scotland. As the Controlled Activities Regulations aim to bring the controls, aims and objectives of many of these pieces of legislation under one umbrella, whilst updating the regulations in accordance with the aims and objectives of the WFD, it is expected that there would be a number of potential issues, both with environmental legislation and other legislation such as planning, building, transport, flooding and agriculture policies. This section highlights some of the potential issues raised by consultees in this regard.
Planning Policy
Consultees indicate that there may be a number of areas where planning policy and CARs interact. Care needs to be taken to ensure that the proposed CARs regulations do not conflict, overlap or hinder the planning policy system The two main areas of potential conflict include thresholds for various parameters (e.g. septic tank volumes) and the differing timescales for authorisation and approval.
The Scottish Building Regulations
A number of issues have been raised regarding the integration of CARs with the aims, responsibilities and Technical Standards outlined within the Scottish Building Regulations. These include the following.
The statement within the consultation document (page 6) that SEPA is to regulate building. However, the buildings regulations control the design, installation and construction of buildings and the Building Standards Division believe that SEPA will only control the specific building works not covered by the building regulations and consider that the draft regulations are misleading on this point.
The timetable for protection from leaks and spills from new oil tanks needs to be carefully coordinated with the new building standard system to ensure that there is no shortfall in legislative control. At present there is the possibility that one may occur.
Reservoir, Flood Protection and Road Regulations
Local authorities raise concerns that the new CARs regime will affect activities undertaken under the
Reservoirs Act, 1975; the
Flood Prevention (Scotland) Act, 1961 as amended by the
Flood Prevention and Land Drainage (Scotland) Act, 1997; and the
Roads (Scotland) Act, 1984.
Natural Habitats Regulations
Interactions between the proposed CARs, the
Habitats Directive and
Conservation (Natural Habitats) Regulations, 1994 need to be investigated to highlight any requirements for the assessment of applications with the potential to affect protected and ecologically sensitive areas.
Silage Slurry and Agricultural Fuel Oil Regulations
A number of consultees have expressed concern over the current regulation of agricultural fuel storage and ask that it be brought under the control of CARs.
The Common Agricultural Policy (CAP)
Consultees have highlighted potential conflicts between the CAP and some of the GBRs, such as the draft rules for ditch clearing and dredging.
Liability, Compensation and Insurance
Summary of Comments
The issue of compensation, liability and insurance is raised by a number of consultees. The scenarios and points included within their responses are summarised below.
The refusal by SEPA of an application to conduct maintenance works to ensure the integrity of a fishing area may result in a degradation of the value of that fishery. Consultees raise this as a potential liability issue that landowners may expect to be compensated for.
The issue of compensation has also been raised with regard to what happens in a situation where either SEPA's refusal for authorisation, or advice and conditions, result in an adverse situation or event.
With regard to the development of control regimes and guidance within Europe in time for 2012, the advanced introduction by Scotland of the CARs introduces the risk that controls may be:
a) too strict; or
b) not stringent enough.
Both of which raise issues of liability for operators and managers, as well as for SEPA.
The Controlled Activities Consultation Process
Summary of Comments
Consultee comments on the methods of consultation used for the Controlled Activities Consultation are as follows. Comments raised mainly relate to the consultee list and methods of distribution, as well as the style of the consultation paper.
Consultees commented that the paper provided a good description of the draft regulations and proposed system of control. Other consultees commented that the paper was too long, and raised the issue of time constraints associated with commenting on a paper of that size.
The majority of consultees have asked to be informed and consulted with regard to future developments in the legislation.
Some consultees raised concerns about not being consulted or asked to provide information on their experience, activities, operations and sites at an earlier stage.
It is suggested that landowners should have been included within the list of consultees.
Consultees who responded after hearing of the consultation through word of mouth or accessing it on the Executive's website expressed the wish for such consultations to be more publicly advertised.
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