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INTRODUCTION

On 8 March 2 published its paper on Controlled Activities Regulations: Revised Proposals for General Binding Rules. The Executive's previous consultation on the draft Controlled Activities Regulations in April 2004 set out the Executive's proposals for the Water Environment (Controlled Activities) (Scotland) Regulations, ( CAR), to be introduced under the Water Environment and Water Services (Scotland) Act 2003, ( WEWS). Responses highlighted many concerns over the proposed General Binding Rules ( GBRs) and the GBRs were subsequently streamlined. The publication in March 2005 was to allow further final comment prior to the Regulations being made.

This analysis of responses provides a brief summary of feedback on the results of the consultation, the main issues that have been raised, the Executive's response, and information on the next steps.

A significant number of detailed and constructive comments were received and the majority of respondents, from a wide range of stakeholder interests, broadly welcomed the streamlined proposals. There were however several common areas of concern and these are outlined below, along with the Executive's plans to address them where appropriate. We are grateful to all those who took the time to respond and also to SEPA and the National Stakeholder Forum for their valuable assistance in preparing the draft Regulations.

LEGISLATIVE BACKGROUND

WEWS and CAR both aim to transpose the objectives of the Water Framework Directive ( WFD, 'the Directive') into Scots 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 CAR therefore aim to protect and improve the ecological status of Scotland's water environment, whilst recognising the need to safeguard the social and economic interest 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.

THE REVISED PROPOSALS FOR GENERAL BINDING RULES

Responses to our previous consultation on proposals for Controlled Activities Regulations indicated that the original proposals for GBRs were too prescriptive and inflexible. The requirement to register under a particular GBR also appeared to place an unnecessary burden on both stakeholders and SEPA given the relatively moderate risk to the environment. The original proposals were therefore revised and significantly streamlined.

These revisions were designed to ensure that:

• The rules of the GBRs are simple and practicable;
• Effective protection of the water environment can be delivered;
• The rules give scope for SEPA to develop suitable guidance to water users on how to undertake such activities.

Our proposals for activities covered by the GBRs were also revised. These now cover:

• Operation of passive weirs constructed before 1 ^st April 2006;
• Abstractions of less than 10m_/day;
• Construction/extension of wells/boreholes and subsequent abstractions;
• Minor dredging activities;
• Construction and maintenance of temporary/minor bridges;
• Laying of pipeline/cable by boring;
• Works to control the erosion of a bank of a river, burn or ditch using revetments;
• Operation of vehicles, plant/equipment;
• Low risk surface water discharges.

Comments were received on many of these proposals and they are summarised below.

(Please note, the numbers used to refer to the GBRs are those used in the March 2005 publication.)

THE AIM OF THE CONSULTATION

The main aim of the consultation paper was to present the revised proposals for general binding rules to stakeholders from private and public organisations and individuals and to invite comment on the revised rules.

THE CONSULTATION PROCESS

The WEWS Act provides for a 28 day consultation on GBRs and the Executive invited opinions on the revised proposals from a range of organisations and individuals. The National Stakeholder Forum and those who responded to the original 2004 consultation received a paper copy of the revised proposals. Letters were also sent to those who received the original consultation paper, informing them that the GBRs had been revised. Thus, a total of 2000 people were contacted on the 8 ^th March 2005 and the response period ended on 5 ^th April 2005. 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.

42 responses were received in total, including 9 from the core respondee group: the National Stakeholder Forum.

Additional information regarding the revised proposals for general binding rules and the process of consultation may be referred to within the consultation paper ( paper 2005/4).

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. 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, NGOs
• Individuals

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.

THE CONSULTEES AND RESPONSES

Table 1 shows the number of responses received from each sector.

The highest level of responses was received from Agriculture & Fisheries Representatives and within this sector the largest number came from fishery boards. The second highest response sector was Industry, followed by Community Councils and Regulators/Regulatory Bodies.

It should be noted that several responses were received from organisations representing large numbers of stakeholders and the detail included in responses varied greatly; the use of statistics is therefore only one way of measuring the level of response.

THE AIMS OF THIS REPORT

The report focuses upon presenting a summary of the range of opinions to emerge from the consultation, drawing out the main issues and comments raised. No specific reference has been made to individual respondents, but comments relating to the specific issues of importance to different sectors or groups of individuals have been included where this is considered to be of significance.

Where appropriate, explanation of how these comments will be addressed has been included.

Copies of the individual responses may be accessed in the Scottish Executive's library (subject to confidentiality restrictions).

Scottish Executive Library, Saughton House, Broomhouse Drive, Edinburgh, EH11 3XD. (An appointment can be made by contacting Mr John Williams - Tel 0131 244 4556.)

RESPONSES

The following section sets out general comments received on the revised proposals and summaries of specific comments received on each general binding rule. Where appropriate an Executive response or explanation has also been included in italics.

GENERAL COMMENTS

1 Structure

Whilst some responses indicated that removing the requirement to register under a general binding rule would result in a regrettable loss of information for SEPA, and others voiced concern that following general binding rules would still be too prescriptive, the majority of responses welcomed the revised proposals for general binding rules. It was felt that the new structure represents a proportionate approach to regulation, using risk-based principles that would effectively protect the water environment.

Scottish Executive response

The suggested structure in the revised proposals will be adopted.

2 Environmental improvement

Several responses highlighted the need for works undertaken with the aim of environmental improvement to be excluded from general binding rules and from CAR entirely.

Scottish Executive response

Whilst works undertaken with the aim of environmental improvement will have to follow general binding rules, activities following general binding rules will not incur charges whether they result in environmental improvement or not.

3 SEPA's role

Many responses noted the useful work undertaken by SEPA currently and expressed confidence in how they will fulfil the new regulatory role in relation to GBRs. Concerns were however expressed over whether SEPA would be adequately resourced. The importance of clarifying SEPA's role in relation to other public bodies such as SNH was also raised.

Scottish Executive response

SEPA and other public bodies work closely together on a range of issues. The working relationships are set out in both formal documents and in less formal working practises. This cooperation will continue during the implementation of the GBRs. It is recognised that the introduction of the Controlled Activities Regulations will place new demands on SEPA's resources and the Executive has worked together with SEPA to ensure SEPA will be adequately resourced. In addition, Ministers have recently announced additional one-off funding of £2.85 million to support capital and research components of implementing the Water Framework Directive in Scotland.

4 Oil storage regulations

Several responses questioned why oil storage was now not included in the GBRs and noted concern that a lack of control over such activities could leave a gap in the regime.

Scottish Executive response

It is the Executive's intention to introduce free-standing regulations that will cover oil storage. The Control of Pollution (Silage Slurry and Agricultural Fuel Oil) (Scotland) Regulations 2003 currently apply to oil storage in Scotland however, and the introduction of the GBRs will not affect these regulations.

5 Exemptions under other legislation

Several responses requested exemptions from GBRs in order to adhere to responsibilities under legislation linked to areas such as flooding, natural heritage, planning or pipeline safety.

Scottish Executive response

This has been considered. Exemptions from GBRs are not necessary as the GBRs have been framed in such a way as to ensure operators can also fulfil duties under other legislation.

6 Application to other water bodies

There were several queries about specifying "river, burn or ditch" in the GBRs and not lochs and other water bodies.

Scottish Executive response

Dredging of lochs is not considered to be a common activity and has therefore not been included. SEPA will review the need for a GBR covering this in due course.

Dredging works in estuaries are outwith the scope of GBRs and are covered by FEPA (engineering GBRs only cover inland waters).

Where dredging, the construction of bridges, laying of pipeline and control of erosion are of a scale greater than that covered by the GBR, or are intended to be carried out in a manner different to the rules specified in the GBR, registration or licensing will be used to control the risk to the water environment

SPECIFIC COMMENTS ON PROPOSED GBRS

GBR 1: "The operation of a weir that…"

Several responses suggested "migratory fish" should be defined and that the specification of weirs more than one metre high was either too high or too low.

Scottish Executive response

These comments have been taken into account and weirs are now only required to allow salmon and sea trout to migrate in accordance with the GBR. This is to ensure the requirements are in line with those previously adopted by the Salmon (Fish Passes and
Screens) (Scotland) Regulations 1994.

GBR 2: "The abstraction of less than 10m_ in any one day"

The majority of responses welcomed this GBR and its ability to control small abstractions without the need for registration. There was some concern however that cumulative impact would not be addressed through the use of this mechanism.

Scottish Executive response

The Regulations are flexible and SEPA will therefore have the power to control cumulative impact of small abstractions through registration if there is a need for it. In addition, Private Water Supply Regulations are currently being developed that will provide SEPA with data on an estimated 19000 abstractions of less than 10m_ per day. This data will enable SEPA to take into account cumulative effects of large numbers of such activities concentrated in the same area.

GBR 3: "The construction or extension of any well, borehole…."

&

GBR 4: "The abstraction from a borehole, and any subsequent discharge…"

In general, responses to this rule were positive. However, there was some concern that references to drilling fluids and materials for backfilling should be clarified to ensure operators know what is approved.

Scottish Executive response

It is anticipated that SEPA will produce guidance to operators on a variety of activities covered by GBRs including those covered by GBRs 3 & 4.

GBR 5: "The dredging of a river, burn or ditch…"

Several responses welcomed the fact the revised proposals no longer included a separate GBR on vegetation but rather included references to vegetation with relevant activities. Questions were however posed about removal of vegetation as a separate activity and how this would be covered. There was concern also that the GBR should specify that removed vegetation should not be disposed of into the channel.

Scottish Executive response

The Executive has taken these comments on board and amended the GBR accordingly. A reference to disposal of vegetation in the channel is now included in GBRs 5, 6 and 7.

Comments were received on the restrictive nature of the GBR in terms of the average width requirement.

Scottish Executive response

This GBR does not prevent dredging activities in larger watercourses. However, because of the increased risk of such activities, it is considered that control by registration or licensing is more appropriate. This is because such activities may significantly impact on the water environment and are therefore not suitable for GBRs.

SEPA are however required to review the scope of the GBRs from time to time and additional GBRs may therefore be developed in due course.

A number of respondees felt that the requirement not to undertake works when fish are likely to be spawning, nor in the period between spawning and the emergence of juvenile fish was onerous.

Scottish Executive response

Such works may be undertaken outwith these times but they will require consultation with SEPA. Once again it is felt that the GBR reflects activities with a minor impact on the water environment and works during spawning and until the emergence of juvenile fish would have a higher impact. It should be noted that, if registration is required, it could be done in advance of any envisaged work and would not be time limited.

GBR 6: "The construction and maintenance of a minor bridge…"

Several comments were made over the 10m limit for culverts and the requirement to reinstate banks to their prior condition.

Scottish Executive response

10m wide culverts are expected to be sufficient to enable crossings by the size of vehicles normally needed to undertake the small scale activities intended to be covered by the GBR. If operators wish to use a wider culvert, they can still apply to SEPA for authorisation.

It is recognised that reinstating vegetation to its condition prior to the works within 12 months will not be practicable. It will take far longer for the re-growth of many types of vegetation. This is allowed for in the GBR, which now requires operators to reinstate the banks as far as reasonably practicable within 12 months.

GBR 7: "The laying of a pipeline or cable by boring…"

There was concern that widening the scope of the GBR would increase the work expected to be undertaken by Scottish Water.

Scottish Executive response

The GBRs are not intended to show work that must be undertaken, rather they stipulate how such work must be carried out if it is carried out. This change to the GBR has therefore not been made to increase workload.

GBR 8: "Works to control the erosion of a bank of a river…"

Many respondees commented that the 10m limit for revetments would be restrictive, especially for larger rivers. There were also comments that the limits of 5 channel widths or 50 metres for repairing existing revetment were too stringent.

Scottish Executive response

Works may be undertaken within 5 channel widths/50 metres of existing bank protection works but they must be registered with SEPA. This part of the GBR has therefore not been changed. Part (e) concerning the 10m limit has however been widened and the GBR will now allow revetments of up to 10 metres or one channel width, whichever is greater. For example, in a river that is 30 metres wide, a 30 metre length of revetment can be installed under the GBR. If longer works are required, SEPA must be consulted.

Many comments were received on the prescriptive nature of the list of materials allowed in the construction of revetments (d).

Scottish Executive response

The GBR has been amended to include a wider variety of materials in line with the suggestions received from stakeholders.

GBR 9: "Operating any vehicle, plant or equipment…"

The revision of this GBR was welcomed.

Scottish Executive response

No further changes are proposed.

GBR 10: "Discharge of surface water run-off from a surface water drainage system"

&

GBR 11: "Discharge into a surface water drainage system."

Although these GBRs received mostly positive feedback, there were also technical suggestions in particular regarding the precise requirement for SUDS and comments on the applicability of this rule for discharges to coastal water.

Scottish Executive response

Coastal water is now referred to specifically in GBR 10 and systems equivalent to SUDS are now permitted by this GBR. In addition, further details have been incorporated to further clarify both GBRs.

CONCLUSION AND NEXT STEPS

Consultees provided valuable feedback regarding both the structure and content of the Revised Proposals for General Binding Rules. The majority of comments received were supportive of the revised proposals and the detailed suggestions for further developments have been most helpful.

The Regulations, including the finalised GBRs were laid in the Scottish Parliament on 25 April 2005. The GBRs will come into force in April 2006.

Additional information on the application of the GBRs will be included in the policy statement to be published alongside the Regulations and in guidance to be published by SEPA in due course. Any further queries should be addressed to the

0131 244 0178. waterdivision@scotland.gsi.gov.uk.

Small changes in the way we perform everyday tasks can have huge impacts on Scotland's environment.

Walking short distances rather than using the car, or being careful not to overfill the kettle are just two positive steps we can all take.

This butterfly represents the beauty and fragility of Scotland's environment. The motif will be utilised extensively by the Scottish Executive and its partners in their efforts to persuade people they can do a little to change a lot.

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