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3. Policy proposals for implementing the Directive
3.1 Overview of our proposals for implementing the Directive
3.1.1 The revised Bathing Water Directive requires us, as with the rest of the UK and other Member States, to make all the necessary legal arrangements to comply with the Directive by 24 March 2008. We intend to do most of this through the Regulations to which this consultation relates. In many cases, these will be a straightforward adoption of the Directive's requirements, although there are some issues regarding how we choose to implement the Directive that can be debated, and we would particularly welcome your thoughts on these issues.
3.1.2 Some aspects of the transposition of the Directive, for example, measures to meet compliance with the Directive's standards, can already or will soon be met through other legislative provisions. In implementing the Directive we will ensure that we create strong links with these other provisions, particularly the legislation that implements the pollution control measures under the Water Framework Directive, therefore affording the best possible protection through existing legislative means.
3.1.3 The following sections explain how we intend to meet the Directive's requirements - which parts we will transpose through Regulations and what this will mean in practice, and the parts that we propose to implement through other means, both through other legislation or through non-legislative measures.
3.1.4 It is important to note that the revised Directive only deals with health related water quality issues. It does not relate to other safety issues that may be associated with using bathing waters, for example, strong currents, rip tides or quick sands. As we are legally bound to implement the Directive, our proposals only relate to provisions required under the Directive. However, we would expect bathing water operators to consider such risks and inform the public accordingly, and certain safety issues may be taken into consideration during designation.
3.2 The regulatory approach - commentary on draft Regulations
3.2.1 This section is intended to be read alongside the text of the draft Bathing Water (Scotland) Regulations 2008, which are set out in Annex A.
3.2.2 Below you will find our commentary for each regulation, explaining what Article of the Directive the regulation is intended to meet (where applicable) and setting out how and why a particular approach has been taken and what it means.
Your views are sought on what we are proposing in the draft Regulations.
Regulation 1 - Citation, commencement and extent
3.2.3 Regulation 1 explains that the Regulations will be known as the Bathing Water (Scotland) Regulations 2008. It provides for Part 1 of the Regulations (Regulations 1-5) together with Regulation 25(1)(a), and part of Schedule 2 to come into force on 24 March 2008. Parts 2, 3, 5 and 6 (Regulations 6-8, 11-24) will come into force in 2011, Part 4 (regulations 9(1)(a) and 9(2)) in 2012, and the rest of the regulations in 2015. The Regulations coming into force from 2008 onwards meet the requirements of Article 18 of the Directive.
Regulation 2 - Interpretation
3.2.4 Regulation 2 provides definitions of certain terms used in the Regulations, which underpin the provisions in the subsequent regulations. Most of these definitions are either those referred to under Article 2 of the Directive or those referred to under existing Scottish enactments. To take account of existing Scottish circumstances in terms of bathing water, a number of new definitions have been made. These include the following:
3.2.5 Bathing water operator - For coastal sites, ownership of the foreshore and seashore parts of a bathing water can be split between a number of different owners, many of whom have no vested interest in the designation. To take account of this, we are proposing that under the Regulations, the person in control of the land immediately adjacent to the bathing water upon which in SEPA's opinion, the main facilities, infrastructure (for example, public toilets, car parking) or measures to promote bathing are located, is designated the bathing water operator. Where such facilities do not exist, the operator would be the person in control of the land that the majority of bathers ordinarily access the bathing water (in many cases the beach). We believe SEPA is best suited to undertake the role of identifying the potential bathing operator, as they are required to profile the bathing water, which also includes, for the monitoring point, determining the busiest section of the beach.
3.2.6 For the vast majority of cases in Scotland, the bathing water operator is likely to be the local authority, as they have provided the facilities that dictate where most people are likely to enter the bathing water. There are relatively few privately owned designated sites in Scotland.
3.2.7 It is probable that in most cases the existing beach operator will also become the bathing water operator, as they generally possess their existing role on the basis of ownership of the land allowing access to the bathing water or the provision of facilities. A lot of beach operators already undertake many of the duties required of the Directive for the bathing water, including beach cleaning and signage. In addition, many beach operators also operate lifeguards or provide other safety provisions - not required under the Directive.
3.2.8 For freshwater sites, we propose that the bathing water operator is the person in control of the solum of the bathing water, i.e. the land underneath the designated part of the loch.
Q 1 - Do you agree with how we propose to identify the bathing water operator? If not, who should be responsible instead?
3.2.9 Relevant authorities - this includes the local authority in which the bathing water is located, and Scottish Water.
3.2.10 Vicinity of the bathing water - for the purposes of providing information to bathers we propose that information is placed in the vicinity of bathing waters, expected to be the spot where most bathers access the bathing water, and likely to be under the ownership of the bathing water operator. This does not necessarily limit signage to a single site, nor does it preclude land that is not under the control of the bathing water operator.
Regulation 3 - Designation of bathing waters and determination of the bathing season
3.2.11 Regulation 3 specifies that Ministers must designate sites as bathing waters where the requirements of Article 1 of the Directive may be met, in that they expect a large number of people to bathe there, and permanent advice against bathing has not been introduced. Regulation 3 also sets out the requirements of Article 3(1) to annually compile and review a list of Scottish bathing waters, the extent of such and defining the length of the bathing season relating to each site, based on the periods when the majority of bathers are present. It also specifies that Ministers are responsible for advising bathing water operators (and the relevant local authorities) of their designation status, and that SEPA and Scottish Ministers must publicise this information in order to bring it to the attention of those likely to be affected. Our proposals are discussed in more detail below.
Identification of bathing waters
3.2.12 From 2008, Member States will be required to identify all bathing waters annually prior to the start of the bathing season, which is a change to the current situation in Scotland: identified waters are considered to be bathing waters until further notice. The Regulation proposes that Scottish Ministers must designate any site that meets the requirements of the Directive, compile a list of such sites and keep it under annual review. The list of bathing waters will have to be published on both SEPA's and the Scottish Government's websites prior to the start of each bathing season - a task already routinely undertaken.
3.2.13 Since 2005, the Bathing Water Review Panel 11, an independent group chaired by Clean Coast Scotland, comprising a range of stakeholders, has been reviewing Scotland's identified bathing waters on an annual basis. This Panel invites applications from all sections of the community for new identifications, and also reviews the designation of those bathing waters which Ministers have identified with the lowest recorded usage, to ensure that we are protecting the right areas; in both the revised and the current Directive, the major determining factor in defining a bathing water is usage.
3.2.14 However, the revised Directive applies to all bathing waters where it is expected that a large number of people will bathe, rather than relying on applications to be made. From our consultation in 2004 12 into determining an appropriate identification process for Scottish bathing waters, we are aware that a number of sites that meet Ministers' criteria of large number of users (being 150 or more on any one day) remain undesignated. To meet the Directive's obligations, Ministers will be legally obliged to consider these sites for designation from 2008 onwards when the reporting period of the new Directive starts.
3.2.15 In addition, we intend that the Panel's review process for 2007 would uncover any other waters not currently identified nor on our list, which should be identified as bathing waters, so that these too can be included prior to the start of the 2008 bathing season. It is also expected that as a result of this process, any currently identified bathing waters which do not meet the stipulated criteria will have been de-designated prior to the start of the 2008 bathing season.
Q2 - Your views are welcome on how we propose to establish the initial list of bathing waters under the revised Directive.
3.2.16 It is not anticipated that the Bathing Water Review Panel would continue to meet in its present form beyond its currently funded lifespan (until 31 March 2008). Although we have not specified in the Regulation, we accept that Ministers will continue to need support - considering the addition of new sites, the deletion of others - in compiling the annual list. We also need to ensure that there are suitable opportunities for the public, in other words, bathers' involvement in the process - an important tenet of the Directive ( discussed in more detail in the section dealing with Regulation 5 - Public participation). How this support will be provided is still up for consideration - should Ministers retain the existing independent Panel in some form or another beyond its original end date of 2008? Or could this work be undertaken by interested parties under one of SEPA's stakeholder groups established under the Water Framework Directive, particularly as the measures required to ensure compliance with the revised Directive will be an important part of the WFD's River Basin Management Plans? We will need to carefully consider whether these options will meet the needs of bathing water operators and local authorities, who have a number of new responsibilities under this Directive.
Q3 - Should the Panel be retained to assist Ministers in compiling the annual list after 2008? Could SEPA undertake this role instead, through its work on the WFD? Have you any views on how we ensure beach operators and local authorities have an appropriate say in these matters?
Defining the bathing season
3.2.17 Article 3 of the revised Directive requires that the length of the bathing season shall be annually defined for each bathing water before the start of the bathing season from 2008 onwards. We propose that Scottish Ministers will be responsible for determining this at the start of each season, informing the relevant bodies, including SEPA and bathing water operators, and publishing this information on both their website and through other means. The bathing season is defined by the Directive as "the period during which large numbers of bathers can be expected". In Scotland this has traditionally been set as between 1 June and 15 September. It is not anticipated that this period will alter significantly for the majority of existing sites, but because of the range of climatic conditions to be found in the far north of Scotland or the islands compared to the south, we believe that there may be scope in future for different bathing seasons to be adopted in Scotland for different sites, and have provided for this in the draft Regulation.
Q4 - Do you agree that there should be scope to set longer or shorter bathing seasons, dependent on where in Scotland bathing waters are located? What lengths should they be? Is the current bathing season (1 June - 15 September) suitable for most sites in Scotland? If you were to change it, how and why would you do it?
Temporary de-designation and re-designation
3.2.18 Regulation 3's annual designation provision also gives provisions for the temporary de-designation of a bathing water where activities, such as coastal protection construction, will prevent bathers from bathing. Where it is expected bathing will resume once any works are in place, a bathing water may be re-designated based on past trends prior to the work. This Regulation also allows bathing waters that have previously had permanent advice against bathing given to be re-designated where advice to that effect has been withdrawn, as the pollution risk has been removed.
Informing operators
3.2.19 Ministers will be responsible for informing bathing water operators and the relevant authorities the extent of the designation and season at a site prior to the commencement of the first bathing season in which the bathing water has been designated or where it is re-designated. They will do so giving sufficient time for operators to undertake their necessary responsibilities, for example, signage, in advance of the start of the bathing season.
Regulation 4 - General duties (of SEPA and the relevant authorities)
3.2.20 Regulation 4 relates to information that Ministers may reasonably require from SEPA and relevant authorities about the quality of bathing water. It also provides for local authorities to seek information from other relevant authorities on the quality of bathing water within their areas. Requests must be in the form of a written notice.
Regulation 5 - Public participation
3.2.21 Public participation is an important part of the revised Directive (Article 11), which we recognised in our recent strategy paper. 13 This is particularly true in relation to the establishment, review and updating of lists of bathing waters and their respective bathing seasons, and Regulation 5 sets out our proposals to encourage public involvement in this process.
3.2.22 The Directive's aim is to introduce a more transparent system of decision-making, something akin to that which we already have with the Bathing Water Review Panel, which was established with public participation in mind. The Panel has engaged local stakeholders, including community groups, in its process, and has also utilised the internet, the media and publications in order to get its message across.
3.2.23 We suggested in our strategy document the need to continue to encourage local community groups to apply for waters to be designated. We proposed making these available on our website for public comment, and the Regulations take account of this. It is likely that our chief means of engaging the public in these matters will be through the internet, and Regulation 5 establishes a duty on Ministers to ensure that the public have sufficient opportunity to comment on any proposals that we publish. We also stated that there would likely be a role for a stakeholder group, similar to the current Panel, to assist Ministers in the application and de-designation process. Whatever method is chosen to advise Ministers in determining the list, this will be in conjunction with the duties placed on Ministers under this Regulation to ensure that the public is both informed of the process and has an opportunity to input into it.
Q5 - With the Bathing Water Review Panel we have instigated a process for identifying bathing waters that encourages public participation, particularly through the use of the internet and engagement with local community and interest groups. Do you have any views on how we can further public involvement in this area?
3.2.24 We also believe that continued use should be made by the Government, SEPA and other relevant authorities in the existing public and stakeholder networks, for example, the Scottish Coastal Forum and Clean Coast Scotland.
Regulation 6 - Bathing water profiles
3.2.25 Article 6 of the Directive requires that a profile of each bathing water is developed by 2011, providing specific information to bathers on the quality of the bathing water and the various pollution risks that might exist. We propose in Regulation 6 for a duty to be placed on SEPA to establish these profiles as we believe SEPA, through their existing bathing water monitoring and assessment work and other environmental duties, is already suited to this task. In addition, SEPA currently produce and publish Pollution Reduction Plans on their website 14, which covers much of the information already required in the profile.
3.2.26 What must be contained in the profile as a minimum is clearly set out in Annex III of the Directive (replicated as Schedule 1 to the Regulations). Among the information to be provided is a description of the bathing water, an identification and assessment of the potential pollution risks, including for cyanobacteria. If a risk from short-term pollution is identified, specific information on this, including appropriate management measures to mitigate the health risks must be provided. The Directive also allows other relevant information to be included at the discretion of individual Member States. Bathing water profiles for waters classified as good, sufficient or poor will need to be reviewed regularly to ensure they are still accurate. The Directive establishes frequencies for undertaking these reviews. We propose that SEPA use these periods as the bare minimum, and would encourage more frequent reviews (as occurs with the Pollution Reduction Plans) where resources allow.
3.2.27 SEPA, in conjunction with the Environment Agency, has already been engaged in developing draft profiles to ascertain how these might look. This work has helped inform a working group established by the European Commission, at which SEPA was present, to discuss a consistent approach as to how this information might be presented across the 27 Member States. As such, it would not make sense to specify how these profiles might look in legislation while this work is ongoing; instead allow the necessary flexibility by only specifying content, rather than format.
3.2.28 The Directive provides for the bathing water profiles of contiguous bathing waters (for example, Burntisland and Kinghorn Pettycur) to be combined, a provision we are allowing SEPA to consider adopting where necessary, based on their knowledge of pollution risks.
Q6 - Do you agree that SEPA is best placed to establish the bathing water profiles. Is there any other information that you would like to see included in the profile, in addition to that required by the Directive?
Regulation 7 - Monitoring
3.2.29 Article 3 of the Directive establishes the requirements for monitoring bathing waters in terms of the microbiological parameters that would provide evidence of potential health risks to bathers. It also specifies that a monitoring point be identified where most bathers are to be expected, or the greatest risk of pollution is to be expected. Article 3 also specifies that a monitoring calendar be introduced for each bathing water before the start of the bathing season, from 2008 onwards. Annex IV of the Directive specifies the minimum number of samples that need to be taken and how frequently. The Directive introduces a degree of flexibility in terms of when monitoring is undertaken, allowing samples to be taken up to four days after the date specified in the calendar. The Directive also allows samples taken during short-term pollution events to be disregarded (although only when certain management measures are in place), with a replacement taken if necessary. During abnormal situations, the Directive even provides for the monitoring calendar to be completely suspended, with new samples taken once the event is over.
3.2.30 Article 8 of the Directive requires that where cyanobacterial proliferation has been identified in the profile, appropriate monitoring is undertaken. Article 9(1) requires that when the bathing water profile indicates a tendency for the proliferation of macro algae and/or marine phytoplankton, investigations are undertaken to ascertain their acceptability and health risks. Article 9(2) requires that bathing waters are inspected visually for pollution from tarry residues, glass, plastic, rubber or any other waste.
Monitoring
3.2.31 Regulation 7 (and schedule 2) sets out our proposals for meeting these requirements. We propose that SEPA continue their current role in terms of monitoring for the microbiological parameters, Intestinal enterococci and Escherichia coli.
Monitoring point
3.2.32 For the microbiological parameters, we believe that SEPA should be responsible for determining the location of the fixed monitoring point. Schedule 2 specifies that this should be located where most bathers are present or where the bathing water profile has indicated that the greatest risk of pollution is expected. Although not required under the Regulations, SEPA may need to consult with the bathing operator, if necessary, to determine the busiest portion of the bathing water. Schedule 2 also specifies, where possible, the depth of water in which samples should be taken. We have also proposed that SEPA may undertake sampling from another point if sampling from the original location is either not possible (for example, access is restricted) or would pose a danger to the sampler (for example, coastal protection undergoing construction).
Monitoring calendar and number of samples
3.2.33 We also propose that SEPA establish the monitoring calendar specifying the dates for sampling at each bathing water, taking account of the minimum number of samples required under the Directive. As SEPA will be carrying out the sampling, it makes sense to allow them to determine when and how often they will be doing it at each site, as they do under the current Directive, in order to determine how much resources this work will entail. We do not propose setting an upper limit under the regulation on the number of samples that SEPA must take (the lower limit is set by the Directive), leaving this to SEPA's discretion. Part 3 of schedule 2 establishes the minimum number of samples that must be taken and when, as specified in the Directive.
Q7 - Do you agree that SEPA should be allowed to set the maximum number of samples that it intends to take at each bathing water, as it does at present?
Flexible sampling
3.2.34 We also intend to transpose the Directive's allowance for samples to be taken up to four days after the date proposed by SEPA in the monitoring calendar. SEPA undertook a trial of flexible sampling in 2006, to better understand the issues that might result from introducing these changes in practice. Many of Scotland's bathing waters are at the highest risk of pollution during and immediately following periods of rainfall. This flexibility would allow, as the Directive intended, for sampling times to be delayed during such periods, when it is most unlikely that anyone will be bathing, and information would be in place to discourage such activities in order to avoid a risk to health. It would also mean that sampling reflects the quality of the water when bathers are actually present.
3.2.35 It is our intention that SEPA should utilise this flexibility where necessary. However, we accept that this will present additional logistical challenges for SEPA, as existing sampling uses a fixed timetable of visits to bathing waters. We will leave it for SEPA to decide when and where they may wish to utilise this provision in practice.
Q8 - Do you have views on SEPA's use of the Directive's provision for flexibility in their sampling? Should there be any restrictions on its usage?
Monitoring during exceptional circumstances or abnormal events
3.2.36 The Regulations also provide for SEPA to suspend the monitoring calendar during abnormal situations and to take additional samples once the event has passed to ensure the minimum number is achieved. If the length of the incident exceeds the length of the bathing season, the Regulations relieve SEPA of their responsibility of taking additional samples. In all cases where SEPA suspends the monitoring calendar during such events, certain management measures must be undertaken, including notifying Ministers and the reasons given for the suspension. These management measures, including determining whether an event is exceptional or abnormal, are specified in Regulation 13.
Monitoring during short-term pollution
3.2.37 Where the appropriate signage and management measures are in place (Regulations 8 and 12), SEPA may disregard samples taken during short-term pollution events (event of less than 72 hours duration). Schedule 2 sets out clearly that where such an event is recognised, SEPA may exclude the failing sample. The Directive limits the number of samples disregarded in such a manner to one sample or 15% of the total number of samples taken, whichever is greater.
3.2.38 The bathing water profile (Regulation 6) requires that any risks of short-term pollution are identified. This will require SEPA to undertake appropriate modelling and investigative work at bathing waters that might be susceptible to short-term pollution events. This will include building up knowledge of the possible source of pollutants. SEPA, through their current investigative work, already has a good understanding of the risks to each bathing water. They hope to expand on this knowledge through current research into identifying the source of bacteria through DNA analysis, which they and the Government are currently involved in.
3.2.39 To disapply samples, SEPA will need to accurately predict or have knowledge that a bathing site could be, or is of poor quality on the day that the sample was taken. For predicting poor water quality, knowing the source of the pollutant would only be one part - SEPA will also need to know the trigger for pollution events. For most short-term events, rainfall is known to be the major factor, either washing diffuse pollution into water courses that run into the sea or overwhelming the existing capacity of the sewerage system. However, in reality it is not as simple as this. SEPA will need to ascertain where in a catchment precipitation is most likely to have an impact and how soon after wet weather will a short-term pollution event occur. SEPA is continuing to improve its knowledge in such areas, and investigating innovative methods, such as radar, to determine more clearly the impact that rainfall might have. Other events can also play a part, including tidal and wind conditions. SEPA needs to determine all these factors when trying to predict water quality.
3.2.40 SEPA has already undertaken predictive modelling work at ten bathing waters in Scotland as part of an innovative Scottish Government signage project to provide predictive information about the quality of bathing waters to potential bathers (see Regulation 8 below). SEPA's modelling system has recorded a high rate of accurate predictions during both the initial project work and throughout the last three bathing seasons, when ownership of the signs was transferred to SEPA. We will leave it to SEPA's scientific expertise to determine at which of Scotland's bathing waters it can accurately predict short-term pollution events. Where it believes it can do so, robust prediction systems will need to be put into place, along with the warning systems required under Regulation 8.
3.2.41 To allow for samples to be discounted, SEPA will also need to determine quickly whether the predicted events are actually poor. This requires quick laboratory assessment and confirmation. Obtaining results from microbiological testing can currently be measured in days rather than hours. SEPA is fully aware of the need to improve the speed of testing in order to measure for short-term pollution events, and will be contributing towards a joint UK study into developing rapid analyses methodology, which the Government also hopes to become involved with.
Q9 - SEPA's predictive abilities have been suitably tried and tested over the past few bathing seasons. Therefore we propose that they be allowed to discount samples where they predict or are aware of short-term pollution and appropriate warnings have been given. Do you have any views on this approach?
Monitoring of cyanobacteria and investigation of macro-algae and marine phytoplankton
3.2.42 We propose that SEPA be responsible for monitoring for cyanobacteria where they have identified a risk of such in the profile, and for investigating the health risks and /or acceptability of macro algae and marine phytoplankton, where this has been identified in the profile.
Monitoring of other waste
3.2.43 The current Directive already requires SEPA to visually monitor certain types of waste. We believe SEPA should continue this role, but in conjunction with the bathing water operator. This would exclude monitoring that may already be being carried out under other legislative regimes, for example, radioactivity or contaminated land.
Monitoring techniques
3.2.44 Annex V of the Directive establishes the particular rules that must be followed in terms of undertaking sampling of the microbiological parameters. Rather than setting these out in a schedule to the Regulations, we believe that reference to the sampling methods can be better achieved through a Direction to SEPA under Section 40 of the Environment Act 1995. We favour the use of Directions here as the rules for sampling techniques have been identified as a prime candidate for refinement under Article 15 of the Directive, and the use of Directions will allow the flexibility of taking these changes on board without having to amend the Regulations. Any Directions issued under Section 40 will be made available publicly through the Edinburgh Gazette. 15
Regulation 8 - Public information
Statutory dissemination of information
3.2.45 Article 12 of the revised Directive asks that information on water quality, including the bathing water's classification and the potential risks to it are made easily and readily available to the public. This includes both at an accessible place in the near vicinity to each bathing water and through other appropriate media, including the internet. The provision of information must be made available from 2012.
3.2.46 Providing information is very important. It enables the public to be aware of any risks to their health that might exist and therefore be able to make an informed choice on whether to bathe or not. In Scotland, we are very aware of the importance of clear information being given to bathers and the positive benefits it may have. In 2003, the electronic variable messaging signs mentioned in paragraph 3.2.40 above were trialled at a number of bathing waters in Scotland. These were designed to inform bathers of the predicted quality of the bathing water 16. Market research 17 carried out following installation of the signs showed that signage was positively received, with 80% of potential bathers stating that the sign had increased their awareness of water quality.
Signage
3.2.47 Regulation 8 proposes that beach operators should be responsible for installing signage in the vicinity of each bathing water, in a place accessible to the public. We believe it is sensible for the bathing water operator to take on the responsibility for what, for many, will be a continuing role - most existing signage at beaches is installed by the existing beach operator, who is likely to be the bathing water operator under these Regulations. Not only do they have an interest in providing information to people who frequent the beaches they manage, but with their local knowledge of the site, they will be most suited to determining where is the most appropriate place to display this information so that it is accessible to the public. Signage would be required to be installed in advance of each bathing season.
3.2.48 The Regulation requires that the sign provides certain information, including the existing classification, whether a bathing prohibition has been imposed and the reasons for, a general description of the site (including the use of maps) and the potential for short-term pollution, as well as the relevant management measures to prevent, reduce or eliminate causes of pollution. SEPA will be responsible for providing the bathing water operator with the necessary information for the sign. The Directive emphasises the importance of using easily understandable signs or symbols to convey the necessary information, as well as clear language. Rather than developing their own individual symbols, Member States have chosen to work together with the Commission to devise a uniform set that will aid understanding across the European Union. The working group established to undertake this task has yet to deliver its recommendations, therefore we are unable to specify in the Regulations what form these should take. We will issue guidance once the format of the symbols has been agreed.
3.2.49 The Regulations do not specify the style or size of the sign, nor what it should be made of. We propose leaving this to the discretion of the bathing water operator, as they may wish their sign to fit in with an existing identity. Nor do the Regulations specify the maximum amount of information that can be contained on the sign - just the minimum legal requirements. It is proposed guidance will be issued to assist bathing water operators in meeting their signage requirements, included suggested designs for signage, as we recognise the potential economies of scale for operators if a common approach is chosen.
Q10 - We propose that to fulfil the requirement to provide public information, bathing water operators will be required to publicise this information through the use of signs. Do you agree that beach operators should be responsible for installing signage?
3.2.50 The Regulations also give the opportunity for the bathing water operator or former operator to request that the local authority install the sign, but at the operators' expense. Equally, if the operator fails to provide signage or request that the local authority does instead, the Regulations give power to the local authority to serve notice on the operator to undertake the necessary work. Failure to do so would lead to the local authority carrying out the necessary work at the operator's expense.
Information for former bathing waters
3.2.51 Where permanent advice against bathing has been issued and has not been withdrawn, the Regulations require that the operator of the former bathing water displays information in the vicinity of the site to this effect. The information would also have to state the reasons as to why bathing was advised against.
Information during short-term pollution or abnormal events
3.2.52 The Directive makes it clear that providing the public with advance warnings of the risks of short-term pollution and abnormal events is of paramount importance. Providing advice about the risks of short-term pollution, in tandem with other management measures (Regulation 12) is also a prerequisite to being able to discount samples taken during short-term pollution incidents.
3.2.53 As we mentioned above, the Government, in conjunction with SEPA, has already trialled the use of electronic signs which display real-time information. In our bathing water strategy 18, we fully recommended the value of such technology, and as such, the Regulation provides for warnings of short-term pollution to be given through SEPA signs, where these exist. We mentioned in the strategy our support to continue funding, where this is available, for the existing ten signs from 2008 onwards, and to extend signage to other sites where this may be appropriate. SEPA is proposing that up to an additional three signs be installed with effect from next year's bathing season.
3.2.54 When short-term pollution occurs at bathing waters where SEPA signage is not available, there is still a requirement to take appropriate management measures to prevent bathers' exposure to poor water quality. This would also cover abnormal events and all other occasions where advice against bathing may be given. For abnormal events, information of its nature and expected duration is required to be displayed. Regulation 8 proposes that in such situations SEPA would inform the local authority, who (for expediency) would amend the bathing operator's sign with the necessary additional information required to inform the public of the pollution risks. The Regulation requires that the sign is designed in such a way as to allow additional information to be added when necessary. It is anticipated that SEPA, local authorities and the bathing water operators will be required to design a contingency plan for such situations.
Internet and other appropriate media
3.2.55 To meet the Directive's requirements in respect of providing information over the web and other appropriate media, the Regulations propose that SEPA must, in relation to each bathing water, publish certain information on its website. This includes not only the information required on the signage, but also the current profile, the bathing water's classification over the last three years, matters relating to short-term pollution, the causes of pollution, appropriate management measures and the results of monitoring. Most of this information, including a record of monitoring results, is already contained on SEPA's website, so we don't envisage that obtaining or providing this information will pose significant problems for SEPA.
3.2.56 The Regulations also require SEPA to provide certain information on their website in several languages, taking account of the location of the bathing water and ease of public under understanding. This includes the list of bathing waters, their classification and the potential for pollution that might pose a risk to bathers' health.
Q11 - What languages do you think would be appropriate for inclusion on SEPA's website? Should this relate to official EU languages, native languages of Scotland (Gaelic, Scots) or those used by ethnic minorities?
3.2.57 As the ways in which we access information continues to change and new media continue to emerge, Regulation 8 requires that SEPA should make use of additional media and continue to develop their communications to take advantage of these developments as they occur. SEPA is already at the forefront of innovative ways to inform bathers, including a text messaging service and phone advice lines for the ten sites that they currently offer predictions for.
Q12 - What new technology would you suggest SEPA should adopt to provide bathing water information?
Regulation 9 - Bathing water assessment
3.2.58 The revised Directive introduces quite a significant change in terms of assessing the quality of a bathing water. Previously, compliance was determined on the basis of that year's monitoring results alone. Article 4 of the revised Directive requires that assessments are based on the samples taken over four separate bathing seasons - the most recent one and the three preceding - with a few exceptions, for example where the bathing water is newly identified. Rather than giving a snapshot view as with the current Directive, this allows a truer and more consistent picture of the quality of the bathing water over time, therefore showing where improvements in water quality may still be required.
3.2.59 The Regulation proposes that SEPA be required to carry out the assessments exactly as determined under the Directive. This sets the minimum number of samples that should be in each sample set, both dependent on the length of the bathing season and the number of years to be assessed.
3.2.60 The Directive also allows Member States to sub-divide or group together bathing waters on the basis of assessments carried out, therefore recognising when and where stretches of water may be considered similar or not. Regulation 9 provides Ministers with this power, to be undertaken where assessments carried out by SEPA justify such action.
Regulation 10 - Bathing water classification (including standards and discounting)
3.2.61 Regulation 10 provides for SEPA to classify bathing waters under the new classifications introduced by Article 5 of the Directive - poor, sufficient, good or excellent. These classifications are determined on the basis of the assessments undertaken, and are set out in Schedule 3 of the Regulations.
3.2.62 Compared to the existing Directive, the new standards are a lot tougher, raising the bar in recognition of an overall improvement in European bathing water quality. The Directive also differentiates between the quality levels for saline and freshwater sites, with stricter standards for the former, on the basis that a lower health risk is perceived from freshwater bacteriological levels.
Excellent
3.2.63 Excellent is the highest water quality indicator. Based on a 95-percentile evaluation, counts must not exceed 100 colony forming units (cfu) of Intestinal enterococci per 100 millilitres (ml) of seawater, or 200 cfu for freshwater. For Escherichia coli, the other microbiological parameter, this is 250 cfu and 500 respectively. Evaluations are based on such percentiles to reduce the risk of statistical anomalies when using the small data set of samples that the Directive requires.
Good
3.2.64 Good is equivalent to the existing Directive's guideline standard. For Intestinal enterococci it is 200 cfu per 100 ml for seawater and 400 cfu for freshwater, again based on a 95-percentile evaluation. For Escherichia coli, the figures are 500 and 1000 respectively.
Sufficient
3.2.65 Sufficient is the standard that the Directive requires all bathing waters to reach by the end of the 2015 bathing water season. This provides the same level of health protection as the minimum requirements of the existing Directive. It is envisaged as a stepping stone to the better good and excellent levels, with the Directive requiring realistic and proportionate measures to be taken to increase the number of bathing waters attaining a higher status. For Intestinal enterococci, counts must not exceed 185 cfu per 100 ml for saline samples and 330 cfu per 100 ml for freshwater over a 90-percentile evaluation. For Escherichia coli, the figures are 500 and 900 respectively. The Regulations do not specifically state that all bathing waters reach sufficient by 2015. However, it will be Scottish Ministers' policy that this is achieved where practicable.
3.2.66 The classification is determined on the basis of assessment against these standards over the four bathing seasons. Water quality must be at least equal to or better than the percentile values given for each classification.
Poor
3.2.67 Waters failing to achieve sufficient status would be classed as poor under Regulation 10. Sites classified as poor can remain in compliance with the Directive if certain management measures are undertaken. These are set out in Regulation 11 (below). Regulation 11 requires that management measures are undertaken to ensure that poor bathing waters can be classified as sufficient, good or excellent.
Discounting
3.2.68 Classification of bathing waters as sufficient, good or excellent where they have experienced short-term pollution events and where appropriate management measures are in place (Regulations 8 and 12) can only be made where the total number of failing samples discounted (as provided for under Schedule 2 of the Regulations) is either one sample per annum or 15% of the total number of samples taken during the assessment period, whichever is greater.
Permanent advice against bathing
3.2.69 To meet the requirements of Article 5, the Regulation also specifies that under certain circumstances SEPA must issue permanent advice against bathing (which it would include on its website), including to the bathing water operator. The operator would be required to display this information on signage under Regulation 8, unless a SEPA sign is installed as per Regulation 11. Permanent advice, which the Directive (and therefore Regulations) has determined means lasting at least one bathing season, must be issued when the bathing water is classified as poor for five consecutive years. As the first classification must be made by the end of the 2015 bathing season, advice would be issued under this provision from 2020 onwards.
3.2.70 The Directive also allows for permanent advice to be given prior to the end of the five year period, where it has been determined to be technically infeasible or disproportionately expensive to achieve compliance with the sufficient standard. The Regulation therefore provides for permanent advice to be issued before the end of the five year period if, after consultation with the relevant authorities, Scottish Water and Scottish Ministers, SEPA considers that achieving sufficient status would be infeasible or disproportionately expensive. The feasibility of achieving sufficient will be easier to determine than whether the measure is disproportionately expensive, as courses of action will be either technically possible or not. However, rather than investigate such issues in this consultation paper, we propose leaving these to be determined in the Scottish Government's forthcoming impact assessment of measures required to comply with the Water Framework Directive's River Basin Management Plans, of which bathing waters will be an integral part.
3.2.71 The Regulation also provides for SEPA to withdraw permanent advice against bathing at a former bathing water if the water quality returns to a quality that if it were a bathing water it would be classified as sufficient or above. In such cases, SEPA must inform Ministers and the former operator that it has withdrawn its permanent advice against bathing.
3.2.72 It is our policy intention, in order to protect public health, that permanent advice would continue to be given each bathing season until such time as bathers choose not to bathe at a former bathing water or SEPA decides to remove its permanent advice due to water quality improvements.
Regulation 11 - Management measures at "poor" bathing waters
3.2.73 To meet the requirements of Article 5, a bathing water can be classified as poor under Regulation 10 and still remain in compliance with the Directive if certain management measures are put in place.
3.2.74 Importantly, in order to protect bathers' health, SEPA will be responsible for ensuring that appropriate information is provided to the public about the classification (both through signage, the internet and by other means). Where a SEPA controlled sign is in existence, as well as maintaining quality predictions, the sign must also carry advice on that current year's poor classification.
3.2.75 The reasoning behind the Directive allowing up to five years of poor classification is to enable enough time for Member States to implement measures to improve the quality of the affected waters to that of sufficient status or above. Therefore, the Regulation requires that SEPA shall also be responsible for identifying and addressing the causes of the failure, and implementing appropriate measures to achieve compliance. Such measures may be through existing or forthcoming regulatory regimes or other forms of managing the environment.
Q13 - Do you agree that this is an appropriate approach to improving poor bathing waters? If not, what would you suggest?
3.2.76 Where it is recognised (Regulation 10) that to obtain sufficient status or above is not feasible or is disproportionately expensive compared to the benefits it would bring, SEPA would not be obliged to undertake improvement measures at such sites.
Regulation 12 - Management measures at bathing waters subject to short-term pollution
3.2.77 The Directive (Annex II) requires that where a bathing water is subject to short-term pollution (i.e. not exceeding 72 hours in duration), certain management measures must be in place. This not only includes surveillance and early warning systems (as provided through SEPA's signs), but measures to prevent, reduce or eliminate the causes of this pollution.
3.2.78 Regulation 8 already puts a duty on SEPA and local authorities to display appropriate warnings to the public when short-term pollution is present or predicted. Where such pollution is detected, SEPA, through existing or forthcoming regulatory regimes or other forms of managing the environment, must take mitigating action to prevent, reduce or eliminate these risks.
3.2.79 Regulation 12 also requires SEPA to inform the bathing water operator when such pollution is present or predicted, the reasons for it, and any actions they undertake as a result.
Regulation 13 - Management measures at bathing waters in abnormal situations and exceptional circumstances
3.2.80 The Regulations (from the Directive) define an abnormal situation as "an event or combination of events impacting on water quality that SEPA would not expect to occur, on average, more than once every four years", i.e. torrential rainfall above this average, similar to provisions that exist under the current Directive. This is understood to be related to microbiological pollution. An exceptional circumstance is classed as "an incident at a bathing water that is unexpected and has, or could be expected to have, an adverse impact on bathers' health". This could be as a result of either anthropogenic or natural causes, for example, the collapse of a sewage mains, or inland flooding that overwhelms sewerage infrastructure, and could include other forms of pollution or risks to human health as well as microbiological. The breakdown of a pump at Scottish Water's Seafield sewage works in April 2007, although outwith the bathing season, illustrated the need for swift action from the authorities in order to protect public health, particularly in relation to the provision of accurate and timely information.
3.2.81 We propose that SEPA and the local authority are best placed to determine collectively whether an abnormal event or exceptional circumstance has occurred, as they would possess the greatest technical expertise on these matters. Such an incident can be brought to the attention of either party by the other, or by the bathing water operator. They may also consult and take evidence from Scottish Water, the local health board and others as they see fit in determining whether the event warrants such a determination. Where there is a disagreement between the parties, we propose that SEPA's determination of the event is final.
Q14 - Do you agree that local authorities and SEPA should determine whether an event is abnormal or exceptional? If not, who would be better placed to undertake this role?
3.2.82 Where an exceptional circumstance or abnormal situation has been determined, Regulation 13 requires that the relevant local authority (for expediency) is responsible for updating the bathing water operator's signage and erecting further signs for the duration of the event. During the aforementioned Firth of Forth sewage spill, local authorities had been largely responsible for issuing appropriate warnings, and as such we believe they are best placed to undertake this role.
3.2.83 The Regulation requires that the local authority must also consult with the other interested parties, Scottish Ministers and the person with proprietorial interest in the bathing water as to whether and what action should be taken to remove or reduce the risk to bathers' health. They would also need to take into account the likely duration of the event and the effectiveness of the signs in dissuading bathers. This Regulation also gives local authorities relevant powers to undertake the necessary actions, including entry onto land.
Q15 - We believe that local authorities would be best placed to undertake the relevant roles to protect public health during abnormal events/exceptional circumstances. Do you agree?
3.2.84 Further action to remove the risk to bathers is likely to be through recourse to SEPA's powers under the Controlled Activities regulatory regime.
Regulation 14 - Management measures at bathing waters affected by cyanobacterial proliferation
3.2.85 Article 8(2) of the Directive requires that where cyanobacterial proliferation occurs, and a health risk has been identified or presumed, adequate management measures have to be taken immediately to prevent bathers' exposure. Cyanobacteria or blue-green algae as it is also known (cyanobacteria comes from the bluish colour of the bacteria) is not a common occurrence at Scottish bathing waters, but it can occur in quantity in lochs and coastal waters, and as we identified in paragraph 2.2.3 it does pose a considerable health risk. Health Protection Scotland have identified between 30 to 40 incidents being reported throughout Scotland annually by SEPA, local authorities and health boards. 19
3.2.86 Cyanobacteria in high concentrations in the water column can form blooms and, when blown onto shore, form scums which may be centimetres thick. Cyanobacteria may also grow on the bottom of shallow water bodies and on shoreline rocks. They occasionally form thick gelatinous mats, which may be exposed as the water level falls or may detach from the bottom and reach the shoreline. These mats are sometimes mistaken for sewage discharges. The Directive identifies proliferation as being an accumulation of cyanobacteria in the form of a bloom, scum or mat.
3.2.87 Regulation 14 requires that where SEPA, the relevant local authority or the bathing water operator is aware of a cyanobacterial proliferation that could pose a risk to bathers' health, that they ensure each other and the local health board are fully informed. SEPA already have a duty under Regulation 7 to monitor for cyanobacteria where the profile indicates a tendency for its proliferation.
3.2.88 When such an outbreak occurs that is deemed to be a sufficient health risk, the Regulation obliges the local authority to take the necessary lead - updating the bathing operator's signage and erecting further signs for the duration of the event. As with short-term pollution, abnormal events, and exceptional circumstances, we have proposed that local authorities undertake this role due to their experience in public health protection (environmental health) and for expediency.
3.2.89 The Regulation requires that the local authority must also consult with the other interested parties, including Scottish Ministers, the local health board and the person with proprietorial interest in the bathing water as to whether and what action should be taken to remove or reduce the risk to bathers' health. They would need to take into account the likely duration of the cyanobacterial proliferation, its extent and the likelihood of it to increase. The continuing effectiveness of the signs in dissuading bathers would also need to be taken into account. This Regulation also gives local authorities relevant powers to undertake the necessary actions, including entry onto land to affix signs or remove the cyanobacterial scum or mat.
Removal of cyanobacteria
3.2.90 Where it is decided to remove the cyanobacterial scum or mat from the bathing water, we propose that the local authority would undertake this task.
Q16 - We believe local authorities would be best placed to undertake the relevant roles to protect public health during cyanobacteria proliferations. Do you agree?
Scottish Government Guidance
3.2.91 While reference is not made in the Regulations themselves, it is likely that local authorities and the other interested parties will utilise existing Scottish Government guidance, "Blue-Green Algae (Cyanobacteria) in Inland and Inshore Waters: Assessment and Minimisation of Risk to Public Health" 20 in helping them undertake their respective duties under the Regulations. This document, published in 2007, requires plans for dealing with algal outbreaks to be in place for each health board area, and sets out suggested courses of action where proliferation is encountered. It also encourages close partnership working among authorities, and should mean that SEPA, local authorities and health boards will have developed suitable working arrangements for dealing with algal pollution before the Regulations' own specific provisions come into force.
Measures to combat cyanobacterial proliferation
3.2.92 Cyanobacteria proliferation, although naturally occurring, is often exacerbated by excess nutrients from anthropogenic sources. These can either be from sewage discharges or from diffuse agricultural sources, primarily fertilisers being washed off the fields. In terms of management measures to reduce this risk, we believe that existing measures to meet the standards of the Urban Waste Water Treatment Directive 21, the Water Framework Directive and the Nitrates Directive 22 will assist in reducing further the already small risk of cyanobacterial proliferation at Scottish bathing waters.
Regulation 15 - Management measures at bathing waters affected by macro-algae and marine phytoplankton
3.2.93 Article 9(1) requires that where a bathing water profile indicates a tendency for proliferation of macro-algae and/or marine phytoplankton, investigations must be undertaken to determine their acceptability and the health risk that they pose to bathers. Where they are deemed unacceptable and/or a health risk to the public, adequate management measures shall be taken. This specifically includes information to the public.
3.2.94 Before specifying how we propose to meet the Directive's requirements in the Regulations, it would be useful to explain that there are differences in potential health risk and unacceptability between macro-algae and phytoplankton.
Macro-algae
3.2.95 In terms of macro-algae, or seaweed as it is more commonly known, the most prevalent type in Scottish coastal waters is kelp. Growing seaweed does not pose a health risk in its natural environment, though can perhaps be a safety issue for bathers if the bathing water has huge amounts of it growing within the designated area (swimmers getting caught up in it, bathers slipping on rocks). We interpret the Directive as referring to dislodged macro-algae deposited on shore. This can collect in huge amounts up to a metre high at particular beaches, especially after storm events. Such deposits are most common between the autumn and spring equinoxes, therefore outwith the bathing season. However, it is likely that there may still be residual amounts of macro-algae on beaches at the start of the bathing season, as large quantities would take a long time to decompose. There are also high tides during the bathing season - for example at the end of August (Lammas tide) at St Andrews which can deposit quite large amounts of seaweed on the beach. It is these deposits that would likely give rise to any potential health risks posed by seaweed, for as well as litter being trapped within it, there are health concerns associated with it rotting, particularly during the summer months.
3.2.96 We recognise that acceptability is likely to be judged on aesthetic or nuisance grounds, rather like litter, than any risk it poses. There may be competing pressures regarding its removal - for example, one of the criteria for the Foundation for Environmental Education's Blue Flag award 23 is that some seaweed is left on the beach to aid biodiversity. While there is no requirement under the EC Habitats Directive 24 to retain macro-algae, our view is that there should be some flexibility on what and when it needs to be removed, which would be dependent on the amount present and the nuisance that it is causing (i.e. how much litter is trapped in it and whether it is emitting odours as a result of decomposition). There may be a need for separate guidance, perhaps similar to the litter Code of Practice 25, whereby litter cleaning is graded depending on the use of the beach. It would also allow some retention for biodiversity purposes as required under the Blue Flag award scheme.
Marine phytoplankton
3.2.97 Marine phytoplankton is a mixture of immature macro algae and other micro plants and algae found at the top of the water column. While occurring naturally, it has also been suggested that anthropogenic sources of nutrients (e.g. sewage outflows and agricultural runoff) and a warming of sea temperatures has increased the level of phytoplankton blooms (where there is a rapid growth in the water column) found in the sea. Certain phytoplankton (dinoflagellates) that cause such blooms also produce toxins, which can pose a health risk. In addition, toxins in the algae that cause red tide can actually become airborne, which also poses a risk to bathers. Many of the risks associated with toxin-producing phytoplankton are similar to those from cyanobacteria.
3.2.98 It is therefore likely that marine phytoplankton will be considered in terms of its health risk before being considered on the basis of acceptability, while macro-algae will be considered more in terms of acceptability.
Determining a proliferation
3.2.99 SEPA, in compiling the bathing water profiles under Regulation 6, will have identified whether particular bathing waters are more prone to macro-algal and marine phytoplankton proliferations. Regulation 15 proposes that where SEPA, the relevant local authority or a bathing water operator considers that there is a proliferation at a bathing water which is unacceptable or a health risk, agreement must be reached among all parties and the local health board.
3.2.100 In determining whether the proliferation is a health risk, the Regulation proposes that the threat of disease should chiefly be taken into account, although direct physical injury to bathers would also be considered where this was perceived to be a significant risk. The views of the health board would also need to be listened to.
3.2.101 A proliferation would be determined as unacceptable, upon consideration of its extent or volume; whether it was unsightly; whether there was any smell or effluent emitting from it; and the amount of waste or litter that was contained within it. To take account of biodiversity issues highlighted previously, we propose that account is also taken of any impact upon the ecosystem that its removal might have.
3.2.102 If a proliferation was determined to be a health risk, this takes precedence in the Regulations and it would not need to be considered on the grounds of acceptability as well.
3.2.103 Where disagreement occurs as to whether a proliferation has a health risk or is unacceptable, SEPA's decision shall be final.
Action to be taken once a proliferation has been determined
3.2.104 Where it has been determined that a proliferation is a health risk or unacceptable, the Regulations propose that the local authority takes the necessary lead - updating the bathing operator's signage and erecting further signs for the duration of the event. As mentioned previously, we have proposed that local authorities undertake this role due to their experience in public health protection (environmental health) and for expediency.
3.2.105 The Regulation requires that the local authority must also consult with the other interested parties, including Scottish Ministers, the local health board and the person with proprietorial interest in the bathing water as to whether and what action should be taken to remove or reduce the risk to bathers' health. They would need to take into account the likely duration of the proliferation, its extent and the likelihood of it to increase. The continuing effectiveness of the signs in dissuading bathers would also need to be judged if the proliferation had been determined to be a health risk. This Regulation also gives local authorities relevant powers to undertake the necessary actions, including entry onto land to affix signs or remove the macro-algae or marine phytoplankton.
Removal of marine phytoplankton
3.2.106 Where it is decided to remove the marine-phytoplankton from the bathing water the local authority undertake this task.
Removal of macro-algae
3.2.107 As mentioned above, there may be scope for guidance to be produced to assist the authorities in determining the unacceptability of macro-algae. Macro-algae is less likely to be classed as a health risk material, although its removal if necessary would also be carried out by local authorities.
Q17 - We believe local authorities would be best placed to undertake the relevant roles to protect public health during macro-algae and marine phytoplankton proliferations. Do you agree?
Scottish Government Guidance
3.2.108 As with cyanobacteria outbreaks, it is likely that local authorities and the other interested parties will utilise the existing Scottish Government blue-green algae guidance in helping them undertake their respective duties for marine phytoplankton under the Regulations.
Regulation 16 - Management measures at bathing waters affected by pollution (such as tarry residues, glass, plastic, rubber or any other waste)
3.2.109 We are aware that even when a bathing water is of good quality, the public's perception will remain that a beach is 'dirty' if litter is present. Studies by the Marine Conservation Society have suggested that on average there are 2,091 items of litter per kilometre of the Scottish shoreline. 26 Tackling coastal litter is obviously an important issue and the Directive specifically takes account of this in terms of bathing waters. Article 9 requires that where pollution such as tarry residues, glass, plastic etc. is found following monitoring by either SEPA or the bathing water operator, adequate management measures should be taken. This includes relevant information to the public.
3.2.110 Regulation 16 proposes that remedial and restorative measures are undertaken where SEPA, the bathing water operator or the relevant local authority is aware of such pollution. We propose that where such waste is present, each of the interested parties must notify the others and the person with proprietorial interest of the occurrence. It is likely if waste is to be found routinely on the bathing water during the season that the interested parties can alert each other to that fact, so perhaps reducing the need to keep others informed each time waste is discovered on the bathing water. However, if the waste is unusual or poses a particular health risk, it would be important that all parties are informed, even if a general notification had already been given at the beginning of the season.
3.2.111 Where waste is present, we propose that the bathing water operator be responsible for undertaking such remedial or restorative measures, including information, that are necessary in order to remedy or mitigate the impact of the pollution. The operator can also make a request to the local authority to undertake such action, but this would have to be at the operator's own expense.
3.2.112 In terms of the operator's obligation to provide information, this is likely to be in the form of signage, if appropriate. For general waste, we would not expect constant warnings of waste pollution to be displayed, rather an overall message on the fixed sign required under Regulation 8 that the bathing water may be prone to waste pollution. Where there are specific incidents of other waste which the operator, SEPA or the local authority deem a health risk and that are not covered under existing legislation, we would expect specific signage to be installed during the occurrence.
3.2.113 We would expect the necessary remedial or restoration measures to entail the removal of the waste from the bathing water, where this is practicable. We recognise that what constitutes waste posing a pollution threat can be subjective. Therefore to assist operators, we propose that guidance may be issued to help assess the amount of pollution that would require remedial or restorative measures and what these measures might entail. Similar guidance already exists for local authorities in terms of the Code of Practice on litter. 27 The Regulations give the bathing water operator powers to enter onto the foreshore to undertake the necessary remedial work. The Regulation specifies that this should be carried out within 14 days from when the operator first becomes aware of the pollution. While we would hope remediation would be carried out quicker in practice, in law we must give the operator sufficient time to organise and undertake the task. Where the bathing water operator requests that the relevant local authority undertakes such measures on its behalf, the Regulations provide powers for the local authority to enter land as it sees fit in order to carry out this request.
3.2.114 If the bathing water operator fails to undertake the required remedial or restoration measures in the timeframe stated under the Regulations, then the Regulations empower the local authority to serve a 'Pollution Notice' on the operator. This would state the measures that the local authority believes should have been carried out by the operator to remedy or mitigate the impact of the pollution and requests that these must be either carried out within 14 days or a request made to the local authority to that effect. Failure to comply with the notice would lead to the local authority undertaking the necessary measures at the operator's expense. The Regulation requires that the local authority undertake such works at the end of the 14 day period following the serving of the notice.
Q18 - We propose that the bathing water operator be responsible for organising remedial or restorative measures at the bathing water in terms of waste. Do you agree?
3.2.115 The Regulations take account of existing legislation that deals with waste prevention and do not seek to duplicate their provisions. Waste deposited by marine vessels is effectively controlled through either the Merchant Shipping Act 1995 28, if the waste is deposited within UK controlled waters, or if outwith, through the MARPOL Convention 29, which is legally binding for all signatories, including the UK. The Maritime and Coastguard Agency are the responsible body in this respect 30 and these matters are reserved. For litter pollution from land, including from beach users themselves (around 30% of the total waste found on our shores according to Clean Coast Scotland) 31, preventative legislative provisions already exist under the Environmental Protection Act 1990. 32
3.2.116 Local authorities and other public bodies, where the owner of a beach, already have a duty to keep the beach clear of litter under the 1990 Act. They also have powers to apply litter controls to private land. However, under the Litter Control Areas Order 1991 33, this responsibility applies only above the mean High Water Springs and thus is not applicable to bathing waters, which commence below that mark. The frequency of cleaning beaches controlled by local authorities has also been established in the litter Code of Practice. For beaches adjacent to designated bathing waters, this must be undertaken every 48 hours during the bathing season. Our Regulations do not require remedial measures to be undertaken at such frequency: however, the provision is made for the bathing water operator and the local authority to enter into an agreement for the local authority to carry out cleansing operations at the bathing water at the same frequency and in the same way as it is required to do so under the 1990 Act.
Beach cleaning proposals
3.2.117 As well as the legal obligation placed upon bathing water operators to undertake appropriate remedial and restorative measures and the existing role on local authorities in terms of beaches under their control, we also stated in our strategy our intention to increase community involvement in keeping beaches and bathing waters clean. 34 We recognise the positive role that a local community can play in improving their bathing environment. On a national level, the Marine Conservation Society operate Adopt-a-beach, a successful beach clean and litter survey project which includes a number of Scottish bathing waters. 35 Keep Scotland Beautiful also run their annual National Spring Clean event, which has enabled community groups to tackle beaches in the past. 36 More locally, the GRAB Trust have been behind a number of initiatives to encourage community involvement with beaches and bathing waters within Argyll and Bute. 37
3.2.118 We said in our strategy that we would explore the possibility of devising a scheme to encourage the involvement of local community groups, where resources were available. This would entail modest levels of funding in exchange for undertaking activities designed to improve the environment at their local bathing water, including reducing levels of litter. We have developed draft proposals for such a scheme in conjunction with Keep Scotland Beautiful, who we believe would be best suited to operating it.
These are set out in Annex C and your views on whether this would be a suitable mechanism for encouraging local community involvement would be welcome.
Regulation 17 - Relevant local authority duties
3.2.119 Regulation 17 proposes that each relevant local authority identifies an official who has overall responsibility for their duties under this legislation. The benefit of this is that it will clarify the point of contact for Ministers, SEPA and other bodies with the local authorities and avoid some of the ambiguity that exists at present. It does not mean that local authorities need to recruit additional staff, as we would expect them to utilise existing officials where necessary. This provision will only have an impact when the other duties on local authorities commence, although we would propose bringing this requirement into force from 2008 in order to ensure local authorities are properly engaged in the process as and when functions fall to them.
3.2.120 Local authorities will have a number of duties placed upon them under the Regulations, both where they are the bathing water operator and as the relevant local authority. Public information provision and the various management measures where pollution is posing a health risk have been discussed above. Local authorities have also been given an enforcement role, including powers of entry, but the Regulations make clear that their costs in carrying out this role can be recovered from the bathing water operator.
Regulation 18 - Duty to notify interested parties
3.2.121 Regulation 18 disapplies the requirements under Regulations 13, 14 and 15 for the operator or organisation that is aware of a potential health risk to bathers to have to notify the other parties of their finding, where they are of the reasonable belief that the other parties are already aware. The intention of this Regulation is to ensure that effort is not wasted ensuring others are informed of an incident that they are already knowledgeable of.
Q19 - Do you agree with this proposal, or should the party that discovers the health risk ensure that the other parties are kept informed?
Regulation 19 - Consultation and notification requirements
3.2.122 Regulation 19 states that the duty on a local authority to consult under Regulations 13 to 16 is not invalidated where any person or organisation consulted fails to respond. This is important, as it allows management measures to be undertaken without having to unduly wait for comments, therefore saving unnecessary delay.
3.2.123 The Regulation also provides for the consultation period to be reduced or even dispensed with, where rapid action is of paramount importance in order to protect health, as long as those with an interest are informed of the reasons for doing so.
3.2.124 We propose that where the bathing water operator, former operator or person with proprietorial interest in the bathing water are unknown or cannot be found, then the authority proposing to undertake the management measure should make their intentions known through a public notice. This notice would be similar to existing public notices utilised by local authorities, and like these, would be made available both at the bathing water itself and in a local newspaper. It would indicate the bathing water affected and explain the intended management measure to be undertaken. To take account of the possibility of waste being deposited regularly at a bathing water throughout the season, we propose that at sites where management measures are required a single notice to cover the whole of the bathing season would suffice. This would prevent the use of unnecessary notices being issued for possibly foreseeable frequent events.
Q20 - Do you agree with our proposals for notifying those with an interest of intended management measures. Should a single notice also apply in terms of macro-algae as well as for waste?
Regulation 20 - Appeals
3.2.125 It is important to allow any individual who feels aggrieved by obligations placed upon them under these Regulations by either SEPA or local authorities to be able to challenge these decisions through the law. We propose that under Regulation 20, aggrieved parties may appeal to the Sheriff where they are unhappy with SEPA's determination of them as the bathing water operator; or where a notice in respect of providing signage is issued by the relevant local authority under Regulation 8; or where a pollution notice is issued under Regulation 16; or any actions of the relevant authority under Regulations 13 to 16.
Regulation 21 - Powers of entry - enforcement (for local authorities)
3.2.126 Regulation 21 provides for powers of entry to land for a local authority or person authorised by the authority on its behalf. This is in response to situations where access to land, or the carrying out of actions on such land as part of a local authority's duties under these Regulations is prevented. A Sheriff may authorise entry onto land by way of a warrant, if need be by force, in order for the local authority's obligations to be met.
Regulation 22 - Recovery of expenses by the relevant local authority
3.2.127 Regulation 22 establishes the right for the relevant local authority to recover any expense incurred from a current or former bathing water operator in respect of duties carried out under these Regulations. This relates specifically to duties it may undertake on behalf of the operator under Regulation 8 (provision of signage) and 16 (cleansing of waste). It also provides for the recovery of the costs associated with the issuing of a Notice or Pollution Notice and any work undertaken as a result. Our policy proposal will remove the risk of local authorities becoming encumbered with unnecessary costs for undertaking duties on behalf of others.
Regulation 23 - Where the relevant local authority is the bathing water operator
3.2.128 In many cases the relevant local authority will also be the bathing water operator, and Regulation 22 sets out the duties set under the previous Regulations that would not apply in such cases. These relate to where local authorities would serve notice or undertake the work on behalf of the operator in terms of the provision of signage under Regulation 8 and waste removal under Regulation 16.
Regulation 24 - Rights of navigation and recreation etc
3.2.129 Regulation 23 proposes that SEPA, relevant local authorities and bathing water operators must have regard to existing public rights under the guardianship of the Crown (who have proprietorial interest in the seabed and for a large proportion of the foreshore) when exercising any powers or complying with a duty under these Regulations. This would ensure that public rights of navigation or recreation are not impeded.
Regulation 25 - Revocation
3.2.130 Regulation 25 revokes the current Bathing Water (Classification) (Scotland) Regulations 1991.
3.3 Summary of the roles and obligations under the Regulations
SEPA - Determine bathing water operator (Regulation 2); inform the public about list of bathing waters (Regulation 3); provision of information to Ministers and/or local authorities (Regulation 4); compile bathing water profiles (Regulation 6); determine monitoring point, establish monitoring calendar and undertake monitoring (Regulation 7); providing information for signage and providing signage for warning against short-term pollution, provide information on website and through other means (Regulation 8); undertake bathing water assessment (Regulation 9); classify bathing waters and provide permanent advice against bathing where necessary (Regulation 10); undertaking certain management measures at poor bathing waters (Regulation 11); undertaking certain management measures at bathing waters subject to short-term pollution (Regulation 12); undertaking certain management measures at bathing waters during abnormal situations and exceptional circumstances (Regulation 13); undertaking certain management measures at bathing waters affected by cyanobacterial pollution (Regulation 14); and undertaking certain management measures at bathing waters affected by macro-algae and marine phytoplankton proliferation (Regulation 15).
Local authorities - Provision of information to Ministers and/or local authorities (Regulation 4); ensuring warning signage is provided during short-term pollution events when there is no SEPA signage in situ (Regulation 8); undertaking certain management measures at bathing waters during abnormal situations and exceptional circumstances (Regulation 13); undertaking certain management measures at bathing waters affected by cyanobacterial pollution (Regulation 14); undertaking certain management measures at bathing waters affected by macro-algae and marine phytoplankton proliferation (Regulation 15); where the bathing water operator is unable or refuses to do so, undertake remedial or restoration work when a bathing water is affected by waste (Regulation 16); identify a relevant official who will have overall responsibility for bathing water duties (Regulation 17); powers of entry in order to undertake a bathing water operator's duties (Regulation 21); and recovery of expenses incurred undertaking a bathing water operator's duties (Regulation 22).
Bathing Water operators - Undertake monitoring (in conjunction with SEPA) for waste (Regulation 7); provide signage to inform bathers (Regulation 8); inform other parties where a cyanobacteria proliferation has occurred (Regulation 14); inform other parties where a macro-algae or marine phytoplankton proliferation has occurred (Regulation 15); and undertake remedial or restoration work when a bathing water is affected by waste (Regulation 16).
Health boards - Providing advice as to whether an incident is an abnormal situation or exceptional circumstance and advice on what remedial action should be taken (Regulation 13); providing advice as to whether a cyanobacteria proliferation is a risk to health and advice on what remedial action should be taken (Regulation 14); and providing advice as to whether a macro-algae or marine phytoplankton proliferation is a risk to health and advice on what remedial action should be taken (Regulation 15).
Scottish Water - Provision of information to Ministers and/or local authorities (Regulation 4); and providing timely advice as to whether an incident is an abnormal situation or exceptional circumstance and where it is what action to be undertaken (Regulation 13).
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