On this page:

The Draft Private Water Supplies (Scotland) Regulations 2005 and Proposals for a Private Water Supplies Grant Scheme - A Consultation

« Previous | Contents | Next »

Listen

The Draft Private Water Supplies (Scotland) Regulations 2005 and Proposals for a Private Water Supplies Grant Scheme: A Consultation

Chapter 3 Commentary on the draft regulations

  1. This chapter is intended to be read alongside the text of the draft Private Water Supplies (Scotland) Regulations 2005, and the Drinking Water Directive, which are set out in Annexes A and B to this document. Below, each substantive regulation (the numbered sections in the draft Regulations) is considered in turn, with a commentary on how and why particular approaches have been taken in the draft Regulations. The draft Regulations are a working document and contain a number of notes, marked in square brackets and italics, where further policy refinement is required.

  2. Your views are sought on the draft Regulations. Throughout the commentary, specific questions are identified on which we are particularly keen to receive views, but this should not stop you commenting on any other issue you see within the draft Regulations. However, as the commentary indicates, many parts of the Regulations come directly from the Directive and in these areas the scope for a different approach is severely limited.

Part I : General

  1. Regulations 1 and 2 cover standard items relating to the citation and commencement of the Regulations and provide definitions for certain terms used in the Regulations. Other expressions used in the draft Regulations have the same meaning as they have in the Directive.

  2. Private water supplies vary in size from those that serve one household to those that serve hundreds of people. In some cases, these consumers own the land their supply is located upon, but this is rare and is even less likely to apply to the whole catchment area for their supply. The draft Regulations recognise these types of complexities with a flexible approach that places responsibility for securing the wholesomeness of a private supply on a 'relevant person', who is to be identified by the local authority. They also make provision for consumers of private water supplies to have powers in certain circumstances.

  3. The draft Regulations are underpinned by the definitions set out in regulation 2, and the most important of these are set out below. Getting these right is key to ensuring that the Regulations are proportionate and enforceable.

"Domestic distribution system"

  1. Under the Drinking Water Directive, certain obligations relating to the quality of water intended for human consumption fall upon "relevant persons". In specified circumstances those obligations do not apply, in particular when any deterioration in the quality of water supplied may be attributed to the domestic distribution system .

  2. For the purposes of the draft Regulations "domestic distribution system" is defined as:

  3. "the pipe work, fittings and appliances which are installed between the taps that are normally used for human consumption purposes and the distribution network, which system is the responsibility of a responsible person, and is not the responsibility of a relevant person".

"Human consumption purposes"

  1. The Private Water Supplies (Scotland) Regulations 1992 make requirements regarding the wholesomeness of a private water supply to any premises for "such domestic purposes as consist of or include drinking, washing or cooking, or of food production purposes". It appears that while this provision was intended to include using private water supplies for personal hygiene, for example water used while brushing teeth, some doubt was left open as to whether the reference to "washing" only applied to food preparation.
  2. The proposed definition of "human consumption purposes" in regulation 2 which is derived from Article 2(1) of the Directive, makes it clear that the draft Regulations apply to private water supplies used for personal hygiene activities.

"Private water supply"

  1. The public water supply in Scotland is provided by Scottish Water, the sole statutory water undertaker. A "private water supply" is defined, by default, as:

"a supply of water (including an abstraction of water from a source situated on the premises in which it is used or consumed) other than a supply provided by Scottish Water in pursuance of its core functions (within the meaning of section 70(2) of the 2002 Act".

  1. This definition is a refinement of that used in the Water (Scotland) Act 1980, and it aligns the draft Regulations with the provisions of the section 47(2) of the Local Government in Scotland Act 2003.

"Relevant person"

  1. Article 4 of the Drinking Water Directive requires action to be taken to ensure that water intended for human consumption is wholesome and clean. The draft Regulations address this by requiring local authorities to identify the person(s) - the "relevant person" - who exercise or exercises control over the private water supply. Regulation 2 provides that:

"relevant person" means, in relation to a private water supply to any premises in the area of a local authority, the person considered by the local authority to be the person providing the supply, or occupying the land from, or on, which the supply is obtained or located, and any person who exercises powers of management or control in relation to the supply".

  1. The draft Regulations require the local authority to identify this person(s) because we consider that local authorities are best placed to judge who has an appropriate level of control over a source of drinking water and that it gives them sufficient flexibility to take account of the wide variety of arrangements through which people access private water supplies.

"Type A supply"

  1. Article 3 of the Drinking Water Directive provides for limited exemptions from its provisions. These exemptions relate to natural mineral waters and medicinal products, which are covered by separate legislation, and water which has no influence either directly or indirectly on the health of consumers, for example, water used for crop washing, or during the distillation of spirits.

  2. The Directive also permits water intended for human consumption from an individual supply providing less than 10 m 3 a day as an average or serving fewer than 50 persons to be exempted unless the water is supplied as part of a commercial or public activity.

  3. Any supply which does not meet one of these exemption criteria is subject to the full provisions of the Directive. The draft Regulations refer to supplies which are subject to the full application of the Directive as a "Type A supply", defined as:

"a private water supply for human consumption purposes which:

- on average provides 10 or more cubic metres of water per day or serves 50 or more persons, or

- regardless of the volume of water provided or the number of persons served, is supplied or used as part of a commercial or public activity".

  1. In determining whether a supply serves 50 or more persons for the purpose of this definition, it is the maximum occupation of the premises served by the supply which is to be considered, to ensure that the appropriate level of monitoring is undertaken to protect human health. In addition, if the supply is provided as part of a commercial or public activity then the supply is a Type A supply. Commercial activities include all food production undertakings (except, as described above, where the quality of the final product is not affected by the quality of the water), caravan sites, campsites, bed and breakfast establishments, and all let properties, including tenanted properties.

"Type B supply"

  1. Smaller private water supplies providing less than 10 m 3 of water per day or serving less than 50 persons are defined as Type B supplies in the draft Regulations. Type B supplies are subject to national requirements rather than requirements under the Drinking Water Directive.

Part II : Modification of the 1980 Act

  1. The primary legislation regarding water supplies in Scotland is, and will remain, the Water (Scotland) Act 1980 (the 1980 Act). If an unwholesome supply is identified, the local authority has powers to serve a notice, under section 76G of the 1980 Act, requiring improvements to be carried out. This is known as an "improvement notice", but in practice its use is not common. In most instances, local authorities prefer to adopt an informal approach based on encouraging consumers to maintain and improve their water supplies.

  2. However, Article 4 of the Drinking Water Directive imposes a general obligation on Member States to take the measures necessary to ensure that water intended for human consumption is wholesome and clean. Rather than the widely cast objective of the previous Drinking Water Directive (80/778/EEC) which was concerned with standards for water intended for human consumption, the purpose of the revised Directive is much more targeted. The current informal approach, encouraging relevant persons to maintain and improve supplies will no longer be sufficient.

  3. Accordingly, regulation 3 of the draft Regulations amends section 76G of the 1980 Act, to place a duty on local authorities, in respect of Type A supplies, to take remedial action in respect of private supplies which are failing to provide wholesome water.

Part III : Wholesomeness

  1. Regulation 4 amends and updates the definition of "wholesome" in the Water (Scotland) Act 1980. This takes account of the qualitative measures for microbiological and chemical standards in the Drinking Water Directive, and the World Health Organisation guidelines for drinking water quality which are generally in line with the Directive. For example, regulation 4 sets values for chemicals in water and specifies the concentration of that chemical that does not result in any significant risk to the health of a consumer, usually over a lifetime of consumption.

Part IV : Temporary departure from requirements of Part III (wholesomeness)

Regulation 5 : 'Application for temporary departure in respect of private water supply that is not wholesome'

  1. The long term expectation is that all private water supplies will eventually meet the new quality standards set by the Drinking Water Directive. However, it is recognised that not all supplies in Scotland will be in a position to immediately comply with the new standards. Until we can achieve that standard, Article 9 of the Directive introduces a significant new provision which permits Member States to grant a derogation or temporary departure from the chemical standards in the Drinking Water Directive, provided that:

"no derogation constitutes a potential danger to human health and provided that the supply of water intended for human consumption cannot otherwise be maintained by any other means".

  1. There can be no derogation in respect of microbiological standards since any departure from these parameters would potentially result in an immediate danger to human health.

  2. Regulation 5(1) of the draft Regulations places a requirement, in respect of a Type A supply, and a discretionary option for Type B supplies, on a relevant person to make an application for an authorisation of a temporary departure where they have reason to believe that their supply is likely to fail the relevant quality standards.

  3. Temporary departures should not be authorised lightly since they reduce compliance with the draft Regulations and undermine its objective of protecting public health. Regulation 5 therefore makes detailed provision regarding the requirements to be met when applying for a departure. In line with the mandatory notification provisions of Article 9(6) of the Directive, regulation 5(5) imposes a duty on the 'relevant person' to promptly inform the population likely to be affected by any application for a temporary departure. The importance of the notification requirement is discussed further at paragraph 86. Representations can then be made to the appropriate local authority in respect of the application within a period of not less than 28 days from the date of service of the notification.

  4. This opportunity for the affected population to comment on provisions which impact on their water supply is very important, and we therefore propose to create an offence where the 'relevant person' fails to comply with the notification requirement of regulation 5(5) of the Regulations.

  5. Regulation 5 requires applications for a temporary departure to look not only at the reason why a departure is required, but to include a summary of the steps that are necessary to secure compliance with the quality standards of the Directive. Even then, the Directive stipulates that the period for such departures is limited to 3 years, in the first instance, and every effort must be made to ensure that by the end of this period the original concern regarding the quality of the drinking water has been addressed to allow the supply to satisfy the full quality standards prescribed in the draft Regulations and the Directive.

Regulation 6 : Authorisation of temporary departure: terms and conditions

  1. The decision whether to approve an application from a relevant person for a temporary departure rests with the local authority. Regulation 6 requires the local authority to consider representations, received within the 28 day period for making representations, before determining an application for a temporary departure. In addition the local authority must be satisfied that:

(i) the authorisation is necessary to maintain a supply of water for human consumption purposes;

(ii) a supply of water for those purposes cannot be maintained by any other reasonable means; and

(iii) the supply of water in accordance with the authorisation does not constitute a potential danger to human health.

  1. If the above conditions are satisfied the local authority may then authorise a temporary departure for a period of up to a maximum of three years. The authorisation issued by the local authority will detail the terms and conditions imposed on a relevant person whilst the temporary departure is in force. The authorisation will also detail the steps which they need to take in order to bring that supply up to required quality standards, and include a timetable and an estimate of the cost of the improvement work and provision for reviewing progress.

  2. The Directive requires Member States to take active steps to promote compliance with the revised quality standards for drinking water. It will no longer be acceptable for relevant persons, owners and users of Type A supplies, to do little or nothing to improve the quality of their supplies. Accordingly, we propose that where a relevant person either fails to apply for a temporary departure under regulation 5 or fails to comply with the terms of such a departure issued under regulation 6 then the local authority will serve an 'improvement notice' under section 76G of the 1980 Act. In support of this proposal we intend to introduce a new offence for failure to comply with the terms and conditions of an 'improvement notice'. This step is being taken to address concerns expressed by local authorities that the 1980 Act in this regard required 'teeth' if they were to have any chance of delivering real improvements to private supplies. This is discussed further at paragraph 85.

Consultation point 1: The Directive and the draft Regulations require active steps to be taken to improve the quality of water intended for human consumption. Do you agree with proposals that local authorities should issue improvement notices both where relevant persons (a) fail to apply for a temporary departure under regulation 5; and (b) fail to comply with the conditions attached to a departure issued under regulation 6?

  1. There may be occasions where a local authority is not minded to authorise a temporary departure, or does so subject to conditions. Where these circumstances apply we propose that the relevant person may appeal to the sheriff against either the refusal of, or the conditions attached to, a temporary departure.

Regulation 7 : Authorisation of a second temporary departure

  1. The Directive and the draft Regulations recognise that in limited circumstances the period of the temporary departure granted under regulation 6 may need to be extended. The authorisation of a second departure will not be automatic. Local authorities will be required to undertake a review, not later than 6 months before the expiry of the initial departure period, to determine whether sufficient progress has been made towards improving the supply. Where the local authority proposes to grant a second departure they will need to notify the relevant person of the outcome of that review not later than 4 months before the end of the initial departure period. The relevant person must notify other users of the supply of the continuing relaxation of quality standards. The second authorisation will again stipulate the steps etc., which need to be taken to improve the supply.

  2. Regulation 7 includes a requirement for local authorities to notify the Scottish Ministers of decisions to authorise a second temporary departure. In turn, the Scottish Ministers are required to notify these to the European Commission.

  3. The relevant person may appeal to the sheriff against a decision of a local authority to refuse a second departure, or to impose conditions.

Regulation 8 : Authorisation of a third temporary departure

  1. Provision is made within the Directive to deal with exceptional circumstances where it may be necessary to seek an authorised departure for a third period. There may be instances where improvements to individual supplies cannot rectify a wider water environment problem caused for example by unusually high levels of naturally occurring minerals such as manganese or iron. Applications for a third temporary departure must be approved by the European Commission, rather than the local authority, and so the timescales for triggering an application are shorter to accommodate the increased administration and scrutiny that such an application will receive.

  2. The Directive makes no provision in respect of water supplies which may continue to fail the water quality standards at the end of a third departure.

Regulation 9 : Authorisation of temporary departure: other limitations

  1. Regulations 5 to 8 of the draft Regulations provide local authorities with the ability to grant temporary departures where they are satisfied that such authorisations do not constitute a potential danger to human health. However, there may be instances where local authorities, whilst satisfied that the requirements of a departure application have been met, may nevertheless wish to limit its scope to an individual source or to particular premises or class of premises. Regulation 9 gives local authorities the powers to do this.

Regulation 10 : Publicity for authorisation of temporary departure

  1. The Directive stresses the importance of ensuring that the population affected by a temporary departure is promptly informed of the departure and the conditions governing it. This regulation provides local authorities with additional powers to require a relevant person, for example, to display a poster in a commercial or public premises or place an advert in a local newspaper to ensure that those persons who are going to consume a supply of drinking water are aware that water quality standards have been relaxed.

  2. Although it will have no practical application, since there are currently no individual supplies of the required magnitude in Scotland, regulation 10(3) is necessary to give effect to the Directive requirement to notify the European Commission of any departure concerning an individual supply of water exceeding 1000 m 3 a day on average or serving more than 5000 persons.

Regulation 11 : Revocation and modification of temporary departure

  1. This regulation enables local authorities to revoke temporary departures or to modify the conditions attached to them, at any time, where new or additional information comes to light which indicates, for example, that the continuance of the original authorisation is likely to have an adverse effect on the quality of water intended for human consumption.

  2. The regulation requires local authorities to give the relevant person 28 days notice of their intention to revoke or modify an authorisation unless immediate revocation or modification is required in the interests of public health.

Part V : Investigations, Authorisation of Temporary Departures and Remedial Action

Regulation 12 : Investigations: Schedule 1 microbiological and chemical parameters

  1. Article 8 of the Directive requires Member States to ensure that any failure to meet the prescribed quality standards is immediately investigated in order to identify the cause and that in such cases consumers are informed promptly and given any necessary advice.

  2. Accordingly, regulation 12 sets out the steps a local authority is required to take when a private water supply fails, or is likely to fail, the quality standards of the draft Regulations (these are set out in Schedule 1, Tables A and B of the draft Regulations). Local authorities will have a duty to investigate any failure that may occur on a supply serving 50 or more persons or associated with a commercial or public activity ("Type A" supply). In respect of any other supply ("Type B" supply), local authorities have discretionary powers to investigate failures where, in the interests of public health, they consider action to be appropriate.

  3. The regulation also requires local authorities to identify potential causes of failures in drinking water quality that may be attributable to the pipe work within the property where the failure was identified (defined as the 'domestic distribution system' for the purposes of the draft Regulations). In a case where a failure is attributable to the domestic distribution system or the maintenance of that system then the owner of the property, rather than the relevant person, is responsible for rectifying the deficiency (this is in line with Article 2(2) of the Directive).

  4. Regulation 12(6) and 12(10) require the relevant person to notify consumers affected by the failure. The notification requirement at regulation 12(10) may be considered onerous in the case of drinking water supplied to public premises, however it is required in order to ensure that consumers are informed promptly of failures which may constitute a danger to human health and given any necessary advice.

Regulation 13 : Investigations: Schedule 1 indicator parameters

  1. The quality standards (parametric values) listed in Schedule 1, Tables A and B, of the draft Regulations are the basic minimum requirements for a wholesome and clean supply of water intended for human consumption. Additionally, the values listed in Schedule 1, Table C are 'indicator parameters', which can provide early warning that the water supply may be likely to fail these minimum quality requirements and constitute a risk to public health. Local authorities must investigate failures and identify appropriate remedial actions.

Part VI : Monitoring of Private Water Supplies

  1. Article 7 of the Directive requires Member States to undertake regular monitoring of the quality of water intended for human consumption. This monitoring provision is further refined at Annex II to the Directive which requires Member States to undertake 'check monitoring' and 'audit monitoring'.

Regulation 14 : Check monitoring - interpretation and application

  1. 'Check monitoring' is intended to ensure that regular information on organic and microbiological material is collected in order to determine whether or not water intended for human consumption complies with the relevant quality standards laid down in the draft Regulations. Check monitoring results which show levels or concentrations above those prescribed, can pose immediate risks to human health or make the water unacceptable in taste, odour or visual terms.

Regulation 15 : Audit monitoring - interpretation and application

  1. The purpose of audit monitoring is to confirm whether the quality standards specified in Schedule 1 to the Regulations are being complied with. Audit monitoring provides a regular check of drinking water quality against the Directive's requirements.

Regulation 16 : Monitoring duties and powers.

  1. Local authorities will be under a duty to take and analyse samples of drinking water for all Type A supplies. For Type B supplies the local authority has a discretionary power, very much in line with provisions under the 1992 Regulations, to take and analyse samples of drinking water. Regulation 16 and Schedule 1 identify the specific microbiological and chemical standards to be monitored and whether they are the subject of check or audit monitoring. The regulation also provides the framework to be adopted where a supply of water comes from a temporary source e.g. a water tanker or bowser.

Regulation 17 : Determination of Level of Type A supplies

  1. Regulation 17 classifies Type A supplies into three distinct levels to fall in line with the sampling requirements imposed by the Directive. The greater the water usage per day the greater the sampling requirement that is needed to ensure that it is representative of the quality of water consumed.

Regulation 18 : Classification of new or restored supplies

  1. This regulation provides a mechanism for the classification of newly developed private water supplies or supplies that have been out of use for 12 months or more. Type A supplies would then be divided into levels in accordance with the provisions of regulation 17.

Regulation 19 : Review of classification of supplies

  1. Local authorities will be under a duty to review and update the information they retain on the classification of private water supplies in their area at least once a year. The intention of the review is to ensure that the classification of the supply has not changed and, in the interests of public health, that the appropriate monitoring regime is being applied to those private water supplies.

Regulation 20 : Monitoring: general provision

  1. This regulation implements Article 7 of the Directive by placing a duty on local authorities, to sample Type A supplies for water quality standards in accordance with the provisions of Schedule 2 to the draft Regulations. And it provides local authorities with discretionary powers to sample Type B supplies. Local authorities must ensure that any samples they take are representative of the quality of the water that is available for human consumption throughout the year. The regulation also provides local authorities with powers to take and analyse samples of drinking water in order to verify previous results, investigate failures in drinking water quality identified from previous results, and to investigate how effective remedial actions have been in providing a wholesome supply of drinking water.

  2. Under regulation 20(5) it is proposed that local authorities shall have a transitional period of 3 months from the coming into force of the Regulations in which to sample all Type A supplies in the local authority's area in accordance with the provisions of these Regulations. After this transitional period a local authority will be required to sample a new or restored Type A supply as soon as it has been classified. This provision is intended as a transitional arrangement to enable the local authority to discharge its obligations under the draft Regulations.

Consultation point 2: Is the three month transitional period sufficient to enable local authorities to meet this regulatory requirement?

  1. Regulation 20(7) imposes a duty on a local authority to take and analyse a representative sample of water within 28 days of a request being made. This provides a mechanism for non-scheduled samples to be taken from private water supplies where there is concern about the quality of the water.

Consultation point 3: Is the 28 day period (a) appropriate and (b) deliverable?

Regulation 21 : Numbers of samples - Type A supplies

  1. Local authorities will be under a duty to sample all Type A supplies in their area. The sampling frequency is dependent on the size of the supply and Schedule 2 of the draft Regulations sets out sampling frequencies and parameters which must be met in order to comply with the Directive requirements. However, there is provision to reduce the number of samples required in each year for certain parameters where it can be demonstrated that the results of samples from at least two successive years are constant and significantly better than the limits described in Schedule 1. The local authority must also be satisfied that there is no other factor that is likely to cause a deterioration in the quality of the water should the reduced sampling frequency be adopted.

Regulation 22 : Monitoring: total indicative dose and tritium

  1. Regulation 22 places the onus on the Scottish Ministers to determine areas in Scotland where private water supplies are likely to be at risk from naturally occurring radiation which may arise due to the geology of the particular area. There are a very few areas in Scotland where the geological conditions are such that this radiation is present at detectable levels and fewer still where the specific measures for radiation (total indicative dose and tritium) specified in Schedule 1 Table C are reached. The Scottish Ministers will take into account existing and future geological and radiological surveys in determining where local authorities should be required to sample for these parameters.

Regulation 23 : Additional Monitoring

  1. Regulation 23 is intended to meet the provisions of Article 7(6) of the Drinking Water Directive by placing a duty on local authorities to undertake additional monitoring, on a case-by-case basis if they have reason to suspect that substances and micro-organisms may be present in amounts or numbers which constitute a potential danger to human health. This would cover substances and micro-organisms that are not listed in the Directive but whose presence in a water supply may cause a health risk.

Regulation 24 : Exemption from Audit Monitoring

  1. Annex II of the Drinking Water Directive makes provision to exempt certain chemical parameters from audit monitoring where it can be demonstrated that a chemical is not likely to be present in a given supply in concentrations which could give rise to a risk to human health.

  2. The draft Regulations recognise that for some private supplies sampling for all parameters could represent an unreasonable financial burden given the low potential risk to health. Therefore Regulation 24 makes provision that, in certain prescribed circumstances, local authorities may exclude certain parameters from the standard audit monitoring requirements of these Regulations. This regulation and the associated Schedule are intended to strike a careful balance between the protection of human health and the need to avoid unnecessary regulation.

  3. The chemical parameters to be considered for exemption from the sampling and analysis regime are only those that do not pose an immediate threat to human health and can be demonstrated to either not be present (as they are not used in, for example a treatment system) or have been sampled for a period of time and their absence has been demonstrated to the satisfaction of the local authority.

Regulation 25 : Risk Assessments - private water supplies

  1. For most, if not all, private water supplies, it is not feasible to provide continuous monitoring of the supply or to take daily samples and analyse for a range of parameters. This means that the quality of the drinking water supply is unknown for most of the time and even when samples are taken and analysed, the results only provide information about the drinking water quality at the time the sample was taken and do not provide any assurance about the maintenance or the long term safety of the supply.

  2. For a number of years a complementary approach to sampling has been under development. The approach is based around risk assessment and hazard management and is variously described as risk assessment or water safety planning. The E.coli O157 Task Force Report published in June 2001 recommended that a microbiological risk assessment protocol should be applied to all private water supplies. A similar approach is included in the latest guidance issued by the World Health Organisation who confirm that "The most effective means of consistently ensuring the safety of a drinking water supply is through the use of a comprehensive risk assessment and risk management approach that encompasses all steps in water supply from catchment to consumer".

  3. Regulation 25 incorporates the concept of risk assessment within the regulatory framework. This will ensure that owners and users of private water supplies have access to the best and most up-to-date advice to enable them to identify potential problems for their supply and take appropriate steps to reduce those risks. This approach is intended to provide accessible and usable information so that users and owners of private water supplies can proactively look after their health and the health of those who use the supply.

  4. Regulation 25 places a duty on local authorities to carry out risk assessments on all Type A supplies in their area. For Type B supplies local authorities will have a duty to provide advice and assistance to the relevant person associated with the supply to assist them to undertake a risk assessment exercise. The Scottish Executive is preparing comprehensive information, education and support material designed to enable private water supply users to undertake an initial risk assessment exercise either independently or with support from their local authority. This education and support package will be launched when the Regulations come into force. Local authorities will also have access to information on geology and soil maps for their area and be able to interpret the impact these factors may have on the risk assessment and drinking water quality.

  5. Local authorities are required to complete a risk assessment for all Type A supplies in their area within 18 months of the Regulations coming into force. The Scottish Executive considers that this is sufficient time to enable local authorities to complete this exercise but recognises that for authorities with large numbers of Type A supplies that the proposed timescale may be ambitious.

Consultation point 4: Is the proposed 18 month timescale sufficient to enable local authorities to complete risk assessments for all Type A supplies in their area?

Part VII : Sampling.

Regulation 26 : Collection and analysis of samples

  1. Annex III of the Drinking Water Directive requires Member States to ensure that any laboratory at which samples are analysed has a system of analytical quality control that is subject to independent checks approved by the competent authority (the Scottish Ministers) for that purpose.

  2. The regulation therefore requires that appropriately qualified staff and suitably accredited organisations are responsible for the analytical process. The regulation also requires that samples are managed appropriately to ensure that results are a true representation of the quality of the water at the time the sample was taken. The specific methods of analysis and performance characteristics are detailed at Schedule 5 to these Regulations.

Regulation 27 : Sampling of Type A supplies: further provision

  1. Regulation 27 gives local authorities powers to carry out and charge for monitoring additional to the requirements of regulation 20 and 23 of the draft Regulations. For example, this would enable a local authority to undertake monitoring and sampling in response to localised flooding or a chemical spill in or near a private water supply.

Regulation 28 : Charges for sampling and analysis

  1. This regulation provides local authorities with power to charge for taking and analysing samples from private water supplies in its area. The level of charges is discussed in more detail in the partial Regulatory Impact Assessment (RIA) set out at Annex C of this consultation.

  2. Regulation 28 also permits a local authority to charge a relevant person for expenses reasonably incurred for sampling in accordance with these Regulations, subject to a maximum charge per visit set by regulation 28(1)(a). The RIA discusses how this charge level was arrived at.

Consultation point 5: (a) Is the maximum charge per visit appropriate and (b) should such charges be levied on the basis of full cost recovery?

  1. The maximum charges that a local authority may make for the analysis of a sample of drinking water taken under the provisions of these Regulations will be in the range of £75 to £435 depending on the precise parameters being investigated.

Consultation point 6: Are the proposed analytical charges appropriate?

  1. Regulation 28(3) recognises that in certain circumstances it would not be appropriate to charge an individual with the full costs of the sampling and analysis undertaken through these draft Regulations. This regulation provides local authorities with the powers to apportion such sampling and analysis charges between those persons who may be contractually or otherwise liable for a proportion of the costs. This is in line with the apportionment provisions of the 1992 Regulations.

Part VII : Records and Information

Regulation 29 : Register of private water supplies

  1. Local authorities already maintain a public register of information on private water supplies. However, the Drinking Water Directive makes further requirements for consumers to be informed of the quality of water supplies, including the authorisation of temporary departures and details of remedial action taken or required. Regulation 29 implements this and seeks to promote maximum openness and transparency in relation to water quality issues, in line with the principles of the Freedom of Information (Scotland) Act 2002 and the Environmental Information Regulations.

  2. Regulation 29 imposes a duty on local authorities to maintain and update a detailed public register of all private supplies in their area. The public register will also include details of supplies used for crop washing or for distillation purposes although these private water supplies are not subject to the enforcement and monitoring provisions of the draft Regulations. The Scottish Environment Protection Agency (SEPA) will draw on the information contained in the public register in terms of their responsibilities in relation to the protection of the wider water environment.

  3. These draft Regulations do not affect the powers of the Drinking Water Quality Regulator for Scotland to require information from local authorities relating to drinking water quality.

  4. Local authorities will be required to retain the information collected in the register for a period of 15 years. This requirement is in line with that placed on Scottish Water in respect of data on the drinking water quality of the public water supply. This information will enable future epidemiological or other studies that may be undertaken to have access to historic data.

  5. Local authorities will be required to make initial entries in the register of information within six months of the Regulations coming into force and thereafter within 28 days of the information being available. Local authorities should already hold information sufficient to populate the register with basic information about supplies in their area fairly quickly.

Consultation point 7: Do you agree that the proposed 6 months period is sufficient to enable local authorities make initial entries in the public register?

Regulation 30 : Provision of information

  1. Regulation 30 places a duty on local authorities to make their registers of private water supplies available for public inspection at all reasonable hours and to provide information to the Scottish Ministers, SEPA and local Health Boards on matters within the register.

  2. Local authorities will be required to provide the Scottish Ministers, SEPA and local Health Boards with an annual return completed in accordance with the provisions of Schedule 6 to the draft Regulations. This information will be collated and published either by the Scottish Executive or incorporated into the annual report of the Drinking Water Quality Regulator for Scotland. The requirement to provide information to SEPA relates to their remit for the wider water environment.

Regulation 31 : Information on premises about water quality

  1. The E.coli O157 Task Force Report included a number of significant recommendations for private water supplies including a strong view that unless water was known to be of good quality, advice to boil water should be provided to all visitors. This recommendation was incorporated in the November 2001 consultation, where it was proposed that commercial or public buildings to which the public have routine access should display a copy of their most recent water quality tests. That original policy proposal has evolved into the provision in regulation 31.

  2. Regulation 31 will place a duty on a relevant person to display a public information notice concerning the latest drinking water quality data prominently in his premises and any public or commercial premises. This public information notice will be supplied by the local authority as part of the authority's communication of results to the relevant person. The form of the public information notice will be detailed in guidance that Scottish Ministers will issue to local authorities. In addition to the information notice itself, detailed support materials will be prepared and made available to the public as part of an education and awareness package. Support material will be available from the local authority for the relevant person to provide to members of the public who may wish further information.

Regulation 32 : Offences

  1. Member States are required to identify and take steps to improve private water supplies which fail to meet the quality standards of the Drinking Water Directive - to do nothing is not an option. Therefore, in recognition of the general thrust of the Directive to require compliance with quality standards the Executive is considering making it an offence to fail to comply with an improvement notice served by a local authority under Section 76G of the Water Scotland Act 1980.

  2. A further requirement of the Directive, given the potential health implications, is that consumers should be promptly notified of matters affecting their drinking water. The Executive is therefore considering other offences in terms of failing to notify interested parties of an application for a temporary departure (regulation 5) and of failure to display an information notice in public or commercial premises ( regulation 31).

Consultation point 8: Do you agree that offences should be created for failure to comply with:

(a) an improvement notice;

(b) the notification provisions of regulation 5; and

(c) the requirements of regulation 31 to display an information notice?

Regulation 33 : Appeals

  1. The draft Regulations require local authorities to make a number of determinations in relation to private water supplies. The Executive recognises that, for example, the relevant person or other consumers affected may disagree with the decision of the local authority. Disagreement might arise in relation to the refusal to grant or the conditions attached to an authorisation of a temporary departure or the modification or revocation of such an authorisation. As such, the Executive is currently considering whether to include express appeal provision in the draft Regulations, or whether the availability of Judicial Review offers sufficient opportunity for an aggrieved party to seek a review of a decision.

  2. Appeal options include reference to the Scottish Ministers but the Executive's preference is for an appeal to the Sheriff against a decision of a local authority under the draft Regulations. The Courts have an established expertise in adjudicating on such determinative disputes.

  3. Decisions taken by local authorities will be based on an assessment of the potential risk to human health and it is important that these decisions remain in force pending the resolution of the appeal by the Courts. It is also important that the regulatory process is not unduly undermined by unreasonable appeal provision.

Consultation point 9: Do you agree that appeals should be determined by the Courts?

« Previous | Contents | Next »

Page updated: Thursday, March 24, 2005