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5. HOW STANDARDS WILL BE USED IN SCOTLAND

5.1 General framework

The WEWS Act and CAR set out a framework for SEPA and other regulators to follow in carrying out their functions. Regulators have a duty to protect the water environment, but at the same time are required to consider a number of other issues, including the social and economic impact of their actions, and to ensure that they act in the way best calculated to contribute to the achievement of sustainable development.

It is the responsibility of SEPA to regulate most activities affecting the water environment under CAR. Other regulators also control certain activities that can have a significant impact on the water environment. For example, the Fisheries Research Services are the competent authority for granting licences for engineering activities in coastal waters. All regulators will be expected to apply the same approach to implementing the relevant standards in carrying out their regulatory functions.

Assessing current conditions against the environmental standards - for water quality, water resources and morphological conditions - will determine the available capacity of each water body to accommodate further activities or developments without significant harm to the ecological quality of the water environment.

Where there is significant remaining capacity, this means that, for instance, part of a river could accommodate some changes such as reduced water flow or alterations to the banks without posing significant risks to the quality of the aquatic ecosystem it supports.

The environmental standards are intended to help define the environmental capacity of surface waters to accommodate alterations to their characteristics, without those alterations posing a significant risk to the plant and animal communities they support.

There will be cases where more than one pressure contributes to the risk of failing an objective. The relative contributions of different pressures will need to be considered in developing the River Basin Management Plan and designing measures to tackle the problems. SEPA will need to assess the most cost-effective way to reduce the pressures responsible for such risks. This issue is discussed in more detail in the Executive's paper on objective-setting.

5.2 Guiding principles

The Executive is introducing the first phase of standards in Scotland by means of Directions instructing SEPA how to apply these standards in carrying out its functions under the WEWS Act and CAR.

For clarity and transparency, this paper sets out guiding principles for the application of the environmental standards in Scotland. These bring together many of the existing requirements of regulators but relate them explicitly to the use of the new standards. The Executive expects SEPA and other regulators to have regard to these principles in their implementation of the environmental standards set out in the Directions.

Guiding principles for applying WFD environmental standards in Scotland

SEPA and other regulators will normally be expected to use their powers to prevent controlled activities from causing a failure of an environmental standard.

This will include:

• refusing to grant applications to undertake controlled activities that would result in failure of an environmental standard;
• granting authorisations subject to such conditions as they consider necessary to ensure controlled activities do not cause a failure of an environmental standard; and
• taking enforcement action where necessary to secure compliance with authorisation conditions that have been set to ensure an environmental standard is met.

Such action will help protect Scotland's water environment and the interests of other users of the water environment; and contribute to achieving the WFD's objective of preventing deterioration of status of any water body

Under certain circumstances, SEPA and other regulators may grant an application for authorisation even though they expect that the proposed activity will cause an environmental standard to be failed

SEPA and other regulators are required to have regard to the social and economic costs and benefits of their regulatory decisions and will be expected to strike the right balance between the protection of the water environment and the social, economic and environmental benefits we gain from its sustainable use. This means that SEPA and other regulators may decide it is appropriate to authorise an activity which would cause a failure of environmental standard where they consider the benefits to sustainable development, human health or human safety of so doing would outweigh the adverse social, economic and environmental consequences. Any such decisions must be consistent with relevant legislative and policy requirements:

Where the authorisation of a proposed activity would threaten the status of a water body, SEPA may only grant authorisation if the WFD's provisions for exemption from its objective of preventing deterioration of status are satisfied.

SEPA and other regulators will normally be expected to grant authorisation for activities that would not individually or in combination with other pressures cause an environmental standard to be failed.

However regulators should be satisfied that granting such authorisations would not:

• result in the achievement of environmental objectives, including those for Protected Areas, such as Natura 2000 sites or areas identified to protect drinking water sources, being compromised;
• unnecessarily limit opportunities for future sustainable development by authorising inefficient use of the water environment; or
• have unacceptable adverse impacts on the interests of other users of the water environment

SEPA and other regulators will normally be expected to seek action to improve the water environment only where they are confident that the condition of the water environment is such that there is a significant risk that an environmental objective will not be achieved.

SEPA and other regulators will take action to deliver improvements where:

• monitoring or modelling data provide a high level of confidence that an environmental standard or condition necessary for the achievement of the environmental objective is being failed; or
• biological monitoring results provide a high level of confidence that the ecological quality of the water environment is worse than that required to achieve the relevant objective; or
• the weight of evidence overall provides a high level of confidence that there is a significant risk that an environmental objective will not be achieved unless appropriate improvement action is taken.

SEPA and other regulators are also expected to ensure that the improvements they seek are also sufficient to:

• prevent the environmental standard subsequently being failed again as a result of fluctuations in environmental quality that cannot readily be controlled; and
• provide environmental capacity for future development where development is currently constrained because of the lack of such capacity by securing good environmental practice in terms of efficient and sustainable water use.

Environmental capacity is defined as the capacity of the water environment to accommodate changes resulting from human activities without significant risk to plants and animals it supports. Environmental standards define the point at which the capacity of the water environment is exceeded and hence at which there is a significant risk of adverse effects.

SEPA and other regulators will not normally require improvements for the purposes of achieving the WFD's objectives for the status of water bodies where making the necessary improvements would be technically infeasible or disproportionately expensive.

Where an operator considers that making an improvement to the water environment would be disproportionately expensive, SEPA or the relevant regulator will be expected to take into account relevant information provided by the operator and interested third parties before determining whether to require that improvement and to explain the reasons for the determination.

The principles set out above relate most specifically to the application of standards in regulation. In applying the above principles in practice we would expect SEPA to take the following steps:

1. Identify the activity or activities responsible for causing the significant adverse impacts on a water body;
2. Seek the necessary improvements from by initiating a variation of the relevant authorisation or authorisations designed to achieve the relevant river flow standards;
3. If an operator considers that the necessary improvements would be disproportionately expensive:

• Require the proposed variation or variations to be advertised to enable third parties to express their views on the case to SEPA;
• Check that the operator or operators have identified the most cost-effective option for achieving the relevant flow standard; and
• Determine whether the necessary improvements would be disproportionately expensive;

4. If achieving the good status flow standards by 2015 would be disproportionately expensive or technically infeasible, identify what improvements would be technically feasible and proportionate and over what timescale; and
5. Issue a variation to the authorisation for the activity or activities.

The application of these standards in respect of classification schemes will require further development, and this will be taken forward in the coming months. In due course, rules will be developed for applying the environmental standards to water bodies. This will require SEPA to define the appropriate scale over which a standard would have to be failed in a water body for the failure to affect the status of the water body.

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