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Annex A - Draft Bathing Water (Scotland) Regulations 2008
Scottish Statutory Instruments
2008 No. ENVIRONMENTAL PROTECTION
WATER
The Bathing Water (Scotland) Regulations 2008
Made - - - - 2008
Laid before the Scottish Parliament 2008
Coming into force in accordance with Regulation 1(2) to (5)
The Scottish Ministers, make the following regulations in exercise of the powers conferred by sections 7, 8, 9 and 36 of the Water Environment and Water Services (Scotland) Act 2003, section 2(2) of the European Communities Act 1972 and all other powers enabling them to do so:
PART 1
GENERAL PROVISIONS
Citation, commencement and extent
1. -(1) These Regulations may be cited as the Bathing Water (Scotland) Regulations 2008 and come into force in accordance with paragraphs (2) to (5).
(2) Part 1, regulation 17, regulation 25(1)(a) and paragraph 2(1)(a) of Schedule 2 and regulation 7 in so far as it relates to that paragraph, come into force on 24th March 2008.
(3) Parts 2, 3, 5 and the remainder of part 6 come into force on 24th March 2011.
(4) Part 4, regulations 9(1)(a) and 9(2) come into force on 24th March 2012.
(5) The remainder of these regulations come into force on 1st January 2015
(6) These regulations extend to Scotland only.
Interpretation
2. In these Regulations-
"abnormal situation" - means an event or combination of events impacting upon bathing water quality which SEPA would not expect to occur, on average, more than once every four years;
"bathing season" means the period determined by the Scottish Ministers under regulation 3 relative to each bathing water;
"bathing water" means any surface water designated by the Scottish Ministers under regulation 3;
"bathing water directive" - means Directive 2006/7/ EC( 44) of the European Parliament and the Council concerning the management of bathing water and repealing Directive 1976/160/ EEC( 45);
"bathing water operator" - means the person in control of the solum of the bathing water, except where the bathing water is tidal; where it means the person in control of the land immediately adjacent to the bathing water upon which in the opinion of SEPA the main facilities, infrastructure or measures to promote bathing are situated; or where no such facilities, infrastructure or measures are situated on such land, the land through which in the opinion of SEPA the majority of bathers ordinarily access the bathing water;
"bathing water profile" - means the profile established under regulation 6;
"bathing water quality assessment" - means the assessment carried out by SEPA under regulation 9.
"cyanobacterial proliferation" - means an accumulation of cyanobacteria such as a bloom, mat or scum;
"exceptional circumstance" - means an incident at a bathing water that is unexpected, and has, or could reasonably be expected to have, an adverse impact on bathing water quality and on bathers' health;
"management measures" means such remedial and restorative measures as required of a person under regulations 11 to 16;
"permanent advice against bathing" - means advice against bathing lasting for at least one bathing season ;
"relevant authorities" - means any Local Authority constituted under the Local Government etc. (Scotland) Act 1994, and any operator of a public or private sewage treatment works as defined in the Water (Scotland) Act 1968.
"relevant local authority" - means the local authority with responsibility for the area where the bathing water is situated as defined under the Local Government etc. (Scotland) Act 1994.
"relevant health board" - means the health board constituted under section 2(1)(a) of the National Health Service (Scotland) Act 1978( 46) with responsibility for the area where the bathing water is situated;
"Scottish Water" means the body corporate established under section 20 of the Water Industry (Scotland) Act 2002( 47);
" SEPA" means the Scottish Environment Protection Agency;
" SEPA controlled sign" means signage at a bathing water installed, updated and maintained by SEPA;
"set of bathing water quality data" - means data obtained from results from samples taken under Part 1 of Schedule 2;
"short term pollution" - means contamination by Intestinal enterococci or Escherichia coli where SEPA does not normally expect the contamination to affect bathing water quality for more than 72 hours from when the bathing water is first affected; and
"vicinity of the bathing water" - means a position near to the bathing water, at a place likely to be noticed by persons as they make use of or enter onto the bathing water and, where the bathing water is tidal, higher than the Mean High Water Spring ( MHWS) Tide mark;
Designation of bathing waters and determination of bathing season
3.-(1) Subject to (2) the Scottish Ministers must establish and keep under annual review-
(a) a list of the bathing waters designated under this regulation; and
(b) the bathing season which relates to each bathing water.
(1) The Scottish Ministers must-
(a) designate an area of surface water as a bathing water if-
(i) they expect a large number of people to bathe there, having regard to past trends, infrastructure or facilities provided, or other measures taken, to promote bathing; and
(ii) permanent advice against bathing there has not been introduced;
(b) determine for each bathing water the period during which large number of bathers are expected there as the bathing season.
(2) Paragraph (2)(a) does not apply to any waters which are-
(a) swimming pools;
(b) spa pools; or
(c) enclosed waters-
(i) subject to treatment such as disinfection;
(ii) used for therapeutic purposes; or
(iii) which form an artificially created body but do not constitute surface water or groundwater.
(4) Before the start of the first bathing season in each calendar year, SEPA and the Scottish Ministers must publish the full list of bathing waters on their websites, (and in any other manner that they consider appropriate for the purpose of bringing it to the attention of persons likely to be affected); and the Scottish Ministers must make notification of such publication in the Edinburgh Gazette.
(5) Where the circumstances referred to in paragraph (6) occur the Scottish Ministers must advise bathing water operators and the relevant authorities, as to the extent of designation and season relative to the bathing water connected to that operator and authority at least 56 days before publication under (4).
(6) The circumstances referred to in paragraph (5) are:-
(a) where an area of surface water is designated as a bathing water for the first time under these regulations;
(3) (b) where a former bathing water, which ceased to be designated through its failure to meet the criteria set out in sub sub-paragraph 2(a)(i), is designated as a bathing water for the first time after it ceased to be designated.
(c) where permanent advice against bathing has been withdrawn by SEPA in terms of regulation 10(3) and the former bathing water is to be designated as a bathing water for the first time after that advice has been withdrawn; and,
(4) (d) in respect of the duration of a bathing season only, where an alteration is made to the duration of the bathing season at a designated bathing water.
General duties
4.-(1) SEPA and the relevant authorities must promptly provide-
(a) to the Scottish Ministers such information about the quality of bathing waters as the Scottish Ministers may by written notice reasonably require; and
(b) where the relevant authority is not a local authority such information to a local authority about the quality of the bathing waters in its area as the local authority may by notice reasonably require.
Public participation
5.-(1) The Scottish Ministers must ensure that the public is given early and effective opportunities to participate in the establishment, review or revision of a bathing water or bathing season, in accordance with paragraphs (2) and (3) below.
(2) The Scottish Ministers must-
(a) ensure that the public is informed about any proposals for the establishment, review or revision of a bathing water or season;
(b) ensure that information about the proposals referred to in sub paragraph (a) above is made available to the public, including information about the right to participate in decision making in relation to those proposals;
(c) ensure that the public is entitled to make comments before any decision is made on the establishment, review or revision of a bathing water or season;
(d) in making any such decision, take due account of the results of the public participation; and
(e) having examined the comments made and opinions expressed by the public, make reasonable efforts to inform the public about-
(i) the decisions taken and the reasons and considerations on which those decisions are based; and
(ii) the public participation process.
(3) The Scottish Ministers must publish any information required to carry out their functions under paragraphs (1) and (2) above in such manner as they consider appropriate for the purpose of bringing it to the attention of the public and without prejudice to the foregoing must-
(a) publish such information on their website; and
(b) specify in a notice on the website the detailed arrangements made to enable public participation in the establishment, review or revision of a bathing water or season including-
(i) the address to which comments may be submitted; and
(ii) the period within which such comments may be submitted.
(4) The Scottish Ministers must ensure that sufficient time is allowed for each of the different stages of public participation required by paragraph (2) above.
PART 2
BATHING WATER PROFILES
Bathing water profiles
6.-(1) SEPA must establish and keep under review a bathing water profile for every bathing water in accordance with Schedule 1.
(2) SEPA may combine the bathing water profiles of contiguous bathing waters.
(3) When complying with paragraph (1), SEPA must take into account the data which it has obtained or analysed under-
(a) the Bathing Waters (Classification) (Scotland) Regulations 1991( 48)
(b) the Environment Act 1995( 49);
(c) the Water Environment and Water Services (Scotland) Act 2003( 50);
(d) the Water Environment (Water Framework Directive) (Northumbria River Basin District) Regulations 2003( 51); and
(e) the Water Environment (Water Framework Directive) (Solway Tweed River Basin District) Regulations 2004( 52).
PART 3
MONITORING OF BATHING WATERS
Monitoring
7.-(1) SEPA must monitor and carry out investigations at bathing waters in accordance with this regulation.
(2) Monitoring for-
(a) Intestinal enterococci and Escherichia coli must be carried out in accordance with Part 1 of Schedule 2;
(b) cyanobacteria must be carried out in accordance with Part 2 of Schedule 2; and
(c) other pollution which takes the form of tarry residues, glass, plastic, rubber or any waste must be carried out in accordance with Part 3 of Schedule 2.
(3) Investigation of macro-algae and marine phytoplankton proliferation must be carried out in accordance with Part 4 of Schedule 2;
(4) The bathing water operator must also monitor in accordance with Part 3 of Schedule 2.
PUBLIC INFORMATION
Public information
8.-(1) Every bathing water operator must ensure that the following information about its bathing water is available 28 days prior to and during the bathing season on a sign in the vicinity of the bathing water, in a place easily accessible to the public:-
(a) the bathing water's current classification pursuant to regulation 10 (except where the provisions of regulation 11(3) apply;
(b) whether a bathing prohibition has been imposed there;
(c) a general description of the bathing water, in non-technical language, based on its bathing water profile;
(d) where its bathing water profile indicates that the bathing water is likely to be affected by incidents of short-term pollution-
(i) an indication of such; and
(ii) an indication of the number of days for which advice against bathing was introduced or a prohibition on bathing was imposed during the immediately preceding bathing season because of short-term pollution;
(e) where a bathing prohibition has been introduced for whatever reason, (and SEPA have advised the bathing water operator of this)-
(i) an indication of such prohibition,
(ii) the reasons for such and its cause, and
(iii) the management measures being undertaken to prevent, reduce, or eliminate the causes of pollution that have led to the prohibition; and
(f) an indication of the sources of more complete information published in accordance with paragraph (7).
(2) The sign referred to in paragraph (1) must be designed in such a way so as to allow the additional SEPA information defined in paragraph (4) to be affixed to it.
(3) SEPA must ensure that the additional SEPA information is notified to the relevant local authority as soon as possible upon SEPA becoming aware of such.
(4) The additional SEPA information is:-
(a) whether any advice against bathing there has been introduced;
(b) a warning whenever short-term pollution is predicted by SEPA;
(c) a warning that the bathing water is affected by an incident of short term pollution, (unless such notification is already made available through a SEPA controlled sign at the bathing water);
(d) that an abnormal situation has occurred together with information as to its nature and expected duration; and
(e) where advice regarding short term pollution has been issued, or advice against bathing has been introduced for whatever reason:-
(i) an indication of such advice,
(ii) the reasons for such and its cause, and
(iii) the management measures being undertaken to prevent, reduce, or eliminate the causes of pollution;
(5) The relevant local authority must ensure that the additional SEPA information is displayed at the sign referred to in (1) as soon as possible upon becoming aware of that information.
(6) The obligations upon the relevant local authority in paragraph (5) do not apply in so far as the additional SEPA information is already displayed on a SEPA controlled sign at the bathing water
(7) SEPA must, in relation to each bathing water, publish the following information on its website-
(a) the information referred to in paragraph (1);
(b) the information referred to in paragraph (4);
(c) the information referred to in paragraph (8);
(d) before the start of every bathing season, the bathing water's classification in accordance with regulation 10 over the last three years;
(e) the current bathing water profile;
(f) as soon as possible after the completion of the analysis under Schedule 2, the results of the monitoring carried out in accordance with regulation 7 since the beginning of the current bathing season;
(g) where its bathing water profile indicates that the bathing water is likely to be affected by incidents of short-term pollution, general information on-
(i) the conditions likely to cause short-term pollution;
(ii) the likelihood of short-pollution and its possible duration; and
(iii) the causes of short-term pollution and management measures taken with respect to it; and
(h) where the bathing water is classified as "poor" under regulation 10, information as to-
(i) the causes of pollution there; and
(ii) the management measures being taken there under regulation 11.
(8) Where permanent advice against bathing has been issued in relation to a bathing water (and has not been withdrawn) that water shall be a former bathing water and the person who controls a former bathing water (the 'former bathing water controller') must ensure that, the following information is available in an easily accessible place in the vicinity of the former bathing water, during those parts of the year which formerly constituted the bathing season-
(a) the former bathing water is no longer a bathing water;
(b) an indication that permanent advice against bathing has been issued; and
(c) the reasons for this.
(9) In addition to SEPA's obligations under regulations 11-16, SEPA must ensure that it provides all information referred to in paragraphs (1), (4) or (8) to the bathing water operator or the former bathing water controller as soon as it becomes aware of such.
(10) SEPA may make use of such additional media as appropriate to publicise all or part of the information referred to in paragraph (2).
(11) Public information under these Regulations must-
(a) wherever possible, be provided using maps;
(b) be presented in a clear and coherent manner; and
(c) with regard to the information required in paragraph (7)(d) to (h), be in such languages in addition to English, as are appropriate having regard to the location of the bathing water and ease of public understanding.
(12) In complying with this regulation no person is under any obligation to provide such information which has not yet become available by virtue of the date of commencement of any of these regulations.
(13) In complying with its obligations under paragraphs (1) or (8) the bathing water operator or the former bathing water controller (as the case may be) may request that they be carried out by the Relevant Local Authority; such a request constitutes consent for the Relevant Local Authority to enter onto land controlled by the bathing water operator or the former bathing water controller and carry out such works as it deems necessary to constitute compliance by the bathing water operator or the former bathing water controller with such obligations.
(14) Upon receipt of a request under paragraph (13) and the information that was provided to the bathing water operator or the former bathing water controller under paragraph (9); a Relevant Local Authority must carry out such works which in its opinion satisfies the obligations.
(15) If any of the obligations specified in paragraphs (1) or (8) are not executed 28 days prior to the commencement of the bathing season or, if the display of any information in compliance with those obligations is not maintained during the bathing season, the Relevant Local Authority must serve a notice (a 'Local Authority Notice') upon that operator or controller, which states:-
(a) the obligations, or parts thereof that have not been carried out;
(b) that those obligations or parts thereof must be carried out within 14 days of the date of service of the Local Authority Notice;
(c) that failure to carry out such obligations within 14 days will result in the Relevant Local Authority entering onto such land controlled by the bathing water operator or former bathing water controller as is necessary and carrying them out, and
(d) that the expenses reasonably incurred in doing so will be recoverable by the Relevant Local Authority from the Bathing water operator or former bathing water controller.
(16) Upon the expiry of 14 days (or as near as possible to such a date), after the date of service of the Local Authority Notice the Relevant Local Authority must carry out such works which in its opinion satisfies the obligations imposed upon the bathing water operator or former bathing water controller under paragraphs (1) or (8); in doing so the Relevant Local Authority may enter onto land controlled by the bathing water operator or former bathing water controller and carry out such activities as it thinks fit.
PART 4
BATHING WATER ASSESSMENT AND CLASSIFICATION
Assessment
9.-(1) At the end of every bathing season, for every bathing water, SEPA must-
(a) prepare a set of bathing water quality data for that season; and
(b) carry out a bathing water quality assessment using the set of bathing water quality data compiled in relation to the relevant assessment period.
(2) In this regulation, "a set of bathing water quality data for that season" comprises of samples collected in compliance with regulation 7(2)(a), which number at least:-
(a) 4 samples, where that bathing season is in excess of 8 weeks,
(b) 3 samples , where:-
(i) the bathing season does not exceed 8 weeks, or
(ii) a bathing water is situated in a region subject to special geographical constraints
(3) In this regulation, the "relevant assessment period" is-
(a) the immediately preceding four bathing seasons;
(b) where SEPA so decides in accordance with paragraph (5); the immediately preceding four bathing seasons excepting the most recent season; or
(c) where SEPA so decides in accordance with paragraph (6) the number of immediately preceding bathing seasons, being less than four, that SEPA may determine in accordance with paragraphs (7) (8) or (9) as the case may be.
(4) In this regulation the "set of bathing water quality data compiled in relation to the relevant assessment period" comprises of at least-
(a) 16 samples, where the bathing season is in excess of 8 weeks,
(b) 12 samples where a bathing water is situated in a region subject to special geographical constraints; or,
(c) 8 samples, where the bathing season does not exceed 8 weeks.
(5) SEPA may make a decision under paragraph (3)(b) where-
(a) it has consulted the Scottish Ministers; and
(b) it is at least five years since the last change in the relevant assessment period.
(6) SEPA may make a decision under paragraph (3)(c)-
(a) where it has consulted the Scottish Ministers; and
(b) where-
(i) the Scottish Ministers designated the bathing water under regulation 3 less than four bathing seasons ago and it was not also a designated bathing water under the Bathing Waters (Classification) (Scotland) Regulations 1991 (the 1991 regulations) on 23 April 2014;
(ii) SEPA considers that changes have occurred that are likely to affect the classification of the bathing water under regulation 10; or,
(iii) the bathing water had already been assessed under the 1991 regulations;
(7) In the case of paragraph (6)(b)(i) the number of preceding season is the number of seasons since the bathing water was designated.
(8) In the case of paragraph (6)(b)(ii) the number of preceding seasons is limited to those where the water quality data was all collected after the changes referred to in that paragraph occurred.
(9) In the case of paragraph (6)(b)(iii) the number of preceding bathing seasons in terms of these regulations is those seasons since the commencement of monitoring and assessment; however in addition to such; SEPA will make use of those samples collected under the faecal colliform parameters in schedule 3 of the 1991 regulations for those years prior to such commencement as are necessary to provide samples which cover a continuous 4 year period; such samples collected under the 1991 regulations will be assessed in terms of the parameters set out in the tables in Schedule 3 of these regulations.
(10) The Scottish Ministers may after consulting with SEPA-
(a) subdivide existing bathing waters in the light of the bathing water quality assessments carried out under this regulation; or
(b) group together existing bathing waters in the light of those assessments where those bathing waters-
(i) are contiguous;
(ii) have received similar such assessments for the preceding four years; and
(iii) have bathing water profiles which identify a common pollution risk profile.
Classification
10.-(1) At the end of every bathing season, on the basis of the assessment made under regulation 9, SEPA must classify every bathing water as "poor", "sufficient", "good" or "excellent" in accordance with Schedule 3.
(2) SEPA must issue permanent advice against bathing at a bathing water (which advice must also be directly communicated to the bathing water operator) if:
(a) the bathing water is classified as 'poor' for five consecutive years; or
(b) (after consultation with the relevant authorities, Scottish Water and the Scottish Ministers) it considers that the achievement of a "sufficient" quality classification at that bathing water would be infeasible or disproportionately expensive.
(3) SEPA may withdraw permanent advice against bathing at a former bathing water if the quality of the water is such that if it were a bathing water, it would be classified as "sufficient", "good" or "excellent" in accordance with Schedule 3, and in those circumstances SEPA shall advise the Scottish Ministers and the former bathing water controller that it has withdrawn its permanent advice against bathing.
PART 5
MANAGEMENT OF BATHING WATERS
Management Measures for "poor" bathing waters
11.-(1) This regulation applies where SEPA classifies a bathing water as "poor" under Regulation 10.
(2) SEPA must advise the Scottish Ministers of the classification.
(3) Where a SEPA controlled sign is situated at the bathing water SEPA must update that SEPA controlled sign so that it displays that the bathing water has been classified as poor.
(4) Subject to paragraph (5) SEPA must take such management measures as it considers necessary, whether in relation to the regulation of controlled activities or some other form of management of the environment to ensure that the bathing water can be classified as sufficient, good or excellent.
(5) SEPA shall not be bound under paragraph (4) to achieve sufficient, good, or excellent classification for a bathing water if permanent advice against bathing has been issued under regulation 10(2) with regard to that bathing water.
Management Measures at bathing waters subject to short term pollution
12.-(1) Where short term pollution is predicted, or present at a bathing water, then as soon as it becomes aware of such, SEPA must advise the bathing water operator and the reasons for such.
(2) In addition to its obligations under paragraph (1) SEPA must take such action as it considers necessary, whether in relation to the regulation of controlled activities or some other form of management of the environment to ensure that the short term pollution is prevented reduced or eliminated.
(3) SEPA shall advise the bathing water operator of the action taken or to be taken by them under paragraph (2).
Management Measures at bathing waters in abnormal situations and exceptional circumstances
13.-(1) Where, in the opinion of SEPA, the Relevant Local Authority, or a bathing water operator, (collectively the 'interested parties'), an abnormal situation, or an exceptional circumstance occurs; each of the interested parties must notify the other interested parties and, where appropriate the health board and Scottish Water.
(2) Upon being notified or notifying under regulation 13(1), SEPA will advise; the Scottish Ministers, and the person with proprietorial interest in the bathing water of the notification.
(3) SEPA and the Relevant Local Authority must determine jointly whether an abnormal situation, or an exceptional circumstance has occurred, and in doing so may consult and take evidence from the health board, Scottish Water and such persons as they think fit; in case of disagreement the determination of SEPA is final.
(4) Upon a determination that an abnormal situation, or an exceptional circumstance has occurred, the relevant local authority;
(a) must promptly update the sign erected by the bathing water operator under regulation 8 and erect further signs (and thereafter maintain them) for the duration of such an incident in such areas of the bathing water as are necessary to advise bathers of such and against bathing;
(b) must immediately consult with the other of the interested parties, the Scottish Ministers, the person with proprietorial interest in the bathing water and such other persons as it thinks fit upon whether to take action, and what action to take to remove or reduce the risk to bathers health having regard to:
(i) the likely duration of the event or incident;
(ii) the present and continuing efficacy of the signs erected under (a) in deterring bathing.
(c) may, after consulting as per the provisions of subparagraph (4)(b) take such action as is reasonably necessary to reduce the risk to bathers health, including entering onto such land and removing materials as it thinks fit;
(d) may arrange for the measures referred to in subparagraphs (a) and (c) to be undertaken on its behalf.
Management Measures at bathing waters affected by Cyanobacterial Proliferation
14.-(1) Where SEPA, a relevant local authority or a bathing water operator (collectively the 'interested parties') is aware of a cyanobacterial proliferation which would reasonably be considered to pose a risk to bather's health, each of the interested parties must notify the other interested parties and the health board.
(2) Upon becoming aware of a cyanobacterial proliferation which would reasonably be considered to pose a risk to bather's health, the relevant local authority must:-
(a) promptly update the sign erected by the bathing water operator under regulation 8 and erect further signs (and thereafter maintain them) all for the duration of the a cyanobacterial proliferation in the areas of the bathing water as are necessary to advise bathers of the presence of the proliferation and against bathing; and
(b) thereafter consult with the other of the interested parties, the Health Board the Scottish Ministers, and the person with proprietorial interest in the bathing water upon whether to take action and what action to take to remove or reduce the cyanobacterial proliferation having regard to:
(i) the likely duration of the cyanobacterial proliferation;
(ii) the extent of the cyanobacterial proliferation and the likelihood of the cyanobacterial proliferation to increase; and
(iii) the present and continuing efficacy of the signs erected under sub- subparagraph (i) in deterring bathing.
(3) The relevant local authority may:-
(a) after consulting in accordance with subparagraph (2)(b) and having regard to the views expressed, take such action to remove or reduce such cyanobacterial proliferation (including the removal of materials) as is reasonably necessary to remedy or mitigate the risk to bather's health;
(b) enter onto land as necessary in the discharge of its duties under subparagraph 2(a),
(c) enter onto land, (upon the provision of 7 days notice in writing to the landowner), as necessary in the exercise of its functions under paragraph 3(a),
(d) arrange for the undertaking on its behalf of the measures referred to subparagraphs (2)(a) and (3)(a).
Management Measures at bathing waters affected by Macro-Algae and Marine Phytoplankton proliferation
15.-(1) Where in the opinion of SEPA, the relevant Local Authority, or a bathing water operator (collectively the 'interested parties') a proliferation of macro-algae or marine phytoplankton occurs which poses a health risk to bathers or is unacceptable, then each of the interested parties must notify the other interested parties and the health board.
(2) The interested parties must jointly determine with reference to the criteria specified in (3) whether the proliferation of macro algae or marine phytoplankton is a health risk or is unacceptable; in case of disagreement the determination of SEPA is final.
(3) In determining whether the proliferation:
(a) poses a health risk, the interested parties must have regard to the views of the health board and in the main to the risk to bathers health due to the threat of disease, but may, where they perceive the risk to be significant, take into account the risk of direct physical injury to bathers;
(b) is unacceptable, the interested parties must have regard to:
(i) whether the extent or volume of the proliferation is unusual; (ii) whether the proliferation is unsightly;
(iii) any effluence or effluvia arising from the proliferation;
(iv) the impact upon the ecosystem of that bathing water which would result from the removal of the proliferation; and
(v) the amount of waste or litter which is contained in the proliferation.
(4) Upon a determination under paragraph (2) that a proliferation is a health risk or unacceptable, the relevant local authority must:-
(a) promptly update the sign erected by the bathing water operator under regulation 8 and erect further signs (and thereafter maintain them) all for the duration of such a proliferation in such areas of the bathing water as are necessary to advise bathers of the presence of the proliferation, and in case of health risk, against bathing; and
(b) thereafter consult with the other interested parties, the Scottish Ministers, and the person with proprietorial interest in the bathing water upon whether to take action and what action to take to remove or reduce such a proliferation having regard to:
(i) the likely duration of the proliferation;
(ii) the extent of the proliferation and the likelihood of the proliferation to increase; and
(iii) in case of a health risk, the present and continuing efficacy of the signs erected under subparagraph (a) in deterring bathing
(5) The relevant local authority may;
(a) enter onto land as necessary in the discharge of its duties under subparagraph (4)(a);
(b) after consulting as per the provisions of subparagraph (4)(b) and having regard to the views expressed take such action (including the removal of materials) to remove or reduce such a proliferation as is reasonably necessary to remedy or mitigate the risk to bather's health;
(c) enter onto land, (upon the provision of 7 days notice in writing to the landowner), as necessary in the exercise of its functions under subparagraph (5)(b),
(d) arrange for the undertaking on its behalf of the measures referred to in subparagraphs (4)(a) and (5)(b).
(6) A determination under paragraph (2) that a proliferation is a health risk, together with relevant local authority's discharge of its obligations under this regulation relieves that authority of its obligations with regard to determining whether that proliferation is unacceptable.
Management Measures at bathing waters affected by Pollution (such as tarry residues, glass, plastic, rubber or any other waste)
16.-(1) This regulation applies where SEPA, the Relevant Local Authority, or the bathing water operator (collectively 'the interested parties') is aware of pollution which;
(a) takes the form of tarry residues, glass, plastic, rubber or any waste,
(b) is of an amount so as to require remedial and restorative measures to be undertaken to the bathing water; and
(c) is not already covered by the operation of the Merchant Shipping Act 1995,
(2) Each of the interested parties must notify the other interested parties, the Scottish Ministers, and the person with proprietorial interest in the bathing water.
(3) Within 14 days of becoming aware of pollution as defined in regulation 16(1) the bathing water operator must:-
(a) take such remedial or restorative measures (which may include the provision of information to the public) as are necessary in order to remedy or mitigate the effect of such; or
(b) make a request to the Relevant Local Authority in terms of regulation 16(4).
(4) In complying with its obligations under paragraph (3) the bathing water operator may:-
(a) enter onto and carry out such works on the foreshore in order to comply with its obligations under paragraph (2).
(b) request that the necessary remedial or restorative measures be carried out by the Relevant Local Authority.
(5) Upon receipt of a request under paragraph (3) a Relevant Local Authority must carry out remedial and restorative measures which in its opinion satisfies the obligations incumbent on the bathing water operator; such a request will:-
(a) permit the Relevant Local Authority to enter onto the foreshore, and
(b) constitute consent for the Relevant Local Authority to enter onto land controlled by the bathing water operator.
(6) If the bathing water operator fails to comply with regulation 16(3) the Relevant Local Authority must serve a notice (a 'Pollution Notice') upon the bathing water operator, which states:-
(a) the measures which are necessary in the opinion of the Relevant Local Authority in order to remedy or mitigate the effects of the pollution that have not been carried out;
(b) that no request has been received by the Relevant Local Authority in terms of regulation 16(4)
(c) that the necessary remedial or restorative measures must be carried out, or a request for them to be carried out by the Relevant Local Authority must be received by that Authority; within 14 days of the date of service of the Pollution Notice;
(d) that failure to comply with the terms of the notice that are set out due to subparagraph (6)(c) will result in the Relevant Local Authority entering onto such land controlled by the bathing water operator as is necessary and carrying out the measures, and
(e) that the expenses reasonably incurred by the relevant local authority in carrying out the works in accordance with the terms of the notice that are set out due to paragraph 5(d), (and incurred in the preparation and service of this notice) are recoverable by the Relevant Local Authority from the bathing water operator.
(7) Upon expiry of 14 days after date of service of the Pollution Notice (or as near as possible after such a date) the Relevant Local Authority must carry out such remedial and restorative measures which in its opinion satisfies the obligations incumbent on the bathing water operator; in doing so the Relevant Local Authority may enter onto the foreshore and onto land controlled by the bathing water operator and carry out such activities as it thinks fit.
(8) In assessing the amount of pollution that requires such remedial and restorative measures, under regulation 16(1)(b) the interested parties must have regard to guidance issued by the Scottish Ministers.
(9) In determining what actions are necessary under regulation 16(3) and regulation 16(6)(b) the bathing water operator and the Relevant Local Authority must have regard to guidance issued by the Scottish Ministers.
(10) The relevant Local authority and the bathing water operator may enter into an agreement for the relevant local authority to enter onto the bathing water and carry out operations for the clearing of litter and refuse there in the same way and at the same frequency as it is obliged to in terms of section 89 of the Environmental Protection Act 1990( 53) for the relevant land immediately adjoining the bathing water, or it would be obliged to if the land adjoining the bathing water were relevant land.
(11) Compliance with an agreement of the type referred to under paragraph (10) shall relieve the bathing water operator of its obligations under Regulation 16(3).
Part 6
General Provisions
Relevant Local Authority Duties
17.- The proper officer of the relevant local authority shall co-ordinate the discharge of the functions of the relevant local authority under these regulations; where proper officer means an officer appointed for that purpose by the authority.
Duty to notify interested parties
18.- The duty to notify the interested parties in regulations 13(1), 14(1), 15(1) and 16(1), and the Health Board in 13(1), 14(1) and 15(1) does not apply where the notifying party is of the reasonable belief that the party to be notified is already aware of the matter which would be notified.
Consultation and Notification Requirements
19.-(1) Any failure of a person or body consulted by any person in compliance with the provisions of regulations 13 to 16 to respond, does not invalidate the consultation carried out.
(2) Any notification or consultation period may be reduced or dispensed with in relation to the taking of necessary action by SEPA or a relevant authority for the protection of human health; provided that the party taking such action takes steps to notify such landowner, bathing water operator or former bathing water controller as soon as practicable after the action taken.
(3) If the identity of:
(a) the bathing water operator;
(b) the former bathing water operator;
(c) any person with proprietorial interest in the bathing water;
is unknown or they cannot be found after reasonable enquiry, then the provisions of paragraphs (4) to (7) apply.
(4) Any requirement to consult with, or notify, (as the case may be) the persons referred to in paragraph (3) are held to have been discharged through a public notice which will indicate the bathing water affected, and the type of management measure which may be carried out there; such a notice must be placed in a newspaper circulating in the area where the bathing water is situated and displayed in a prominent place at the bathing water.
(5) The fact that the first available publication date of the notice in a newspaper takes place after the date when the action consulted upon or notified of takes place shall not invalidate such consultation or notification, provided:-
(a) the notice was displayed in a place at the bathing water prior to action taking place; and,
(b) the taking of the action prior to such a date of publication was necessary to protect public health.
(6) Should management measures be required under regulation 16 then the duty to notify the bathing water operator in accordance with the provisions of paragraph (4) shall be discharged through a single public notice which shall cover the duration of the bathing season.
(7) In the case of the bathing water operator or the former bathing water controller, the relevant local authority must discharge the duties that would have been incumbent upon such persons.
Appeals
20.-(1) Any person may appeal to the Sheriff if they are aggrieved by;-
(a) SEPA's opinion in regulation 2 on the land:-
(i) upon which the main facilities, infrastructure or measures are situated,
(ii) through which the majority of bathers ordinarily enter the bathing water;
(b) a Local Authority Notice under regulation 8;
(c) any actions of a relevant local authority under Regulations 13 to 16; or
(d) a Pollution Notice under regulation 16.
(2) Any appeal under paragraph (1) is by way of summary application.
Powers of Entry - Enforcement
21.-(1) If a relevant local authority is prevented from entering onto any land, from carrying out any actions on such land or entry or actions to be carried out on its behalf is prevented, when acting in compliance with these regulations; the Sheriff may by warrant authorise the local authority or authorised person to enter onto such land, if need be by force, and carry out such actions as it requires under these regulations.
(2) A warrant issued in pursuance of paragraph (1) shall continue in force until the purpose for which the entry is required has been satisfied.
Recovery of Expenses by the Relevant Local Authority
22.-(1) Any expense reasonably incurred by the Relevant Local Authority is recoverable from the former bathing water operator or the bathing water operator (as the case may be) by the Relevant Local Authority, if it has carried out works in compliance with:-
(a) with a request by a former bathing water operator under regulation 8(13);
(b) with a request by a bathing water operator under regulations 8(13) or 16(3);
(c) an agreement entered into between the relevant local authority and a bathing water operator of the type referred to in regulation 16(10); or,
(d) in pursuance of a Local Authority Notice, or a Pollution Notice.
(2) In carrying out works in pursuance of a Local Authority Notice or a Pollution Notice, a Relevant Local Authority may include in its recoverable expenses under paragraph (1); the cost of the preparation and service of such a notice, which may include a reasonable estimate of:
(a) its administrative costs and
(b) the monetary value of its staff time.
Where the Relevant Local Authority is the Bathing Water Operator
23.-In any case where the bathing water operator is the same person as the relevant local authority, the relevant local authority is bound to comply with these regulations in the same way as any bathing water operator, however in that instance the following regulations do not apply to the Relevant Local Authority-
(a) 8(13) to 8(16);
(b) 16(3)(b);
(c) 16(4)(b); and
(d) 16(5) to 16(7)
Rights of Navigation and Recreation etc.
24.-In excercising any powers or rights, or complying with any duties or reponsibilities under under these regaultions; SEPA, the Relvant Local authorities and the bathing water operators must have regard to the need to protect and maintain any public rights under the guardianship of the Crown to use the foreshore and adjacent waters or the bed thereof.
PART 7
REVOCATIONS AND MODIFICATIONS
25.-(1) In Part 2 of Schedule 4 to the Water Environment (Controlled Activities)(Scotland) Regulations:-
(a) insert "The Bathing Waters (Scotland) Regulations 2008" immediately after the entry relating to the Control of Pollution (Silage Slurry and Agricultural Fuel Oil) (Scotland) Regulations 1991;
(b) delete the words "The Bathing Waters (Classification) (Scotland) Regulations 1999".
26.-The Bathing Waters (Classification) (Scotland) Regulations 1991 are hereby revoked.
Michael Russell
Authorised to sign by the Scottish Ministers
St. Andrews House
Edinburgh
[ date]
SCHEDULE 1
Regulation 6.
BATHING WATER PROFILES
Contents
1.-(1) Every bathing water profile must-
(a) contain a description of the physical, geographical and hydrological characteristics of-
(i) the bathing water; and
(ii) any other surface water in the catchment area of the bathing water where the surface water could be a source of pollution for the bathing water;
(b) identify and assess the causes of pollution that might affect bathing water quality and pose a risk to bathers' health;
(c) assess the potential for cyanobacterial proliferation;
(d) assess the potential for the proliferation of macro-algae or phytoplankton;
(e) identify the location of the monitoring point.
(f) contain (if the assessment under sub-paragraph (b) indicates that there is a risk of short-term pollution)-
(i) information as to the anticipated nature, frequency and duration of short-term pollution;
(ii) details of the expected causes of short-term pollution;
(iii) details of the management measures taken and the time schedule for the elimination of the causes;
(iv) details of the management measures taken during a short-term pollution incident; and
(v) the identity and contact details of any person responsible for taking the management measures during the incident.
(2) The information in sub-paragraph (1)(a) and (b) must be detailed on a map whenever practicable.
Review
2.-(1) Where a bathing water is classified as "poor", "sufficient" or "good" under regulation 10, SEPA must review the bathing water profile-
(a) at the following minimum frequency-
(i) (i) for a "poor" classification, every two years;
(ii) (ii) for a "sufficient" classification, every three years; and
(iii) (iii) for a "good" classification, every four years; and
(b) taking into account the nature and severity of the pollution which affects the bathing water;
(2) Where there are significant construction works or infrastructure changes in or around a bathing water, the SEPA must review the bathing water profile before the start of the next bathing season.
SCHEDULE 2
Regulation 7.
MONITORING
PART 1
INTESTINAL ENTEROCOCCI AND ESCHERICHIA COLI
Location of monitoring point
1. -(1) Subject to subparagraph (3), where SEPA take samples in compliance with this part they must do so from the monitoring point situated at each bathing water.
(2) SEPA must-
(a) locate the monitoring point at every bathing water where-
(i) most bathers are expected; or
(ii) the bathing water profile indicates that greatest risk of pollution is expected; and
(b) where possible, take samples 30 centimetres below the water's surface and in water that is at least one metre deep.
(3) Where for whatever reason the taking of samples from the monitoring point is not possible or would pose a danger to any person, SEPA must take samples from the next best site (where it is possible to sample and is safe to do so, and) which satisfies the provisions of subparagraph (2).
Monitoring calendar
2. -(1) SEPA must-
(a) establish a calendar which specifies dates for sampling for every bathing water before the start of every bathing season ('a monitoring calendar'); and
(b) take samples at every bathing water no later than four days after the date specified in the monitoring calendar.
(2) In relation to exceptional circumstances or abnormal situations-
(a) during the circumstance or situation, (the incident), SEPA may suspend the monitoring calendar for the duration of the such; and
(b) as soon as possible after the end of the incident, SEPA must-
(i) take one additional sample in order to verify that the incident has ended
(ii) take sufficient additional samples to ensure that it has the minimum number required for the bathing water for the bathing season; and
(iii) notify the Scottish Ministers of the suspension, giving reasons for such.
(c) SEPA must not include the sample taken under sub-paragraph (2)(b)(i) in the set of bathing water quality data for a bathing water.
(d) should the length of the incident exceed the length of the bathing season then SEPA are relieved of their obligations in paragraph 2(2)(b)(ii).
Monitoring
3. (1) SEPA must-
(a) take and analyse at least four samples from every bathing water during every bathing season except where subparagraph (2) or (3) applies;
(b) take the first such sample for every bathing season shortly before the start of that season; and
(c) take samples from every bathing water throughout the bathing season at regular intervals; and (except where the bathing water is situated in a region subject to special geographical constraints), such intervals must not exceed one month.
(2) Where the bathing season for the particular bathing water does not exceed 8 weeks, SEPA only needs to take and analyse 3 samples instead of 4.
(3) Where the bathing season is situated in a region subject to special geographical constraints, SEPA only needs to take and analyse 3 samples instead of 4.
Short-term pollution
4. -(1) This paragraph applies where the appropriate signage and management measures for short term pollution are in place in accordance with regulations 8 and 12 respectively, and a short term pollution incident is occurring.
(2) SEPA may decide not to include samples taken during a short-term pollution incident in the set of bathing water quality data for a bathing water.
(3) As soon as possible after the end of the short-term pollution incident, SEPA must take one additional sample in order to verify that the incident has ended.
(4) SEPA must not include the sample taken under sub-paragraph (3) in the set of bathing water quality data for a bathing water.
(5) Seven days after the end of the short-term pollution incident, SEPA must, if necessary, take an additional sample to ensure that it has the minimum number required for the bathing water for the bathing season.
(6) The number of samples disregarded under subparagraph (2) by SEPA must represent no more than the greater of either-
(a) 15 percent of the total number of samples provided for in the monitoring calendars for the relevant assessment period and that bathing season; or,
(b) one sample per bathing season.
PART 2
CYANOBACTERIA
5. Where any bathing water profile indicates a potential for cyanobacterial proliferation, SEPA must monitor that bathing water at the frequency necessary to allow adequate management measures to be put in place in accordance with Regulation 14.
PART 3
OTHER POLLUTION
6.SEPA and the bathing water operator must each establish a separate visual monitoring programme at every bathing water at the frequency necessary to allow adequate management measures to be put in place in accordance with Regulation 16.
PART 4
MACRO-ALGAE AND MARINE PHYTOPLANKTON
7. Where any bathing water profile indicates a tendency for proliferation of macro-algae or marine phytoplankton, SEPA must carry out such investigations at that bathing water as are necessary to determine whether such proliferation constitutes a health risk to bathers, and allow adequate management measures to be put in place in accordance with regulation 15.
SCHEDULE 3
Regulation 10.
STANDARDS
1. The SEPA must use the following standards for classification-
Standards for inland waters
Parameter | "Excellent" | "Good" | "Sufficient" |
Intestinal enterococci(1) | 200(2) | 400(2) | 330(3) |
Escherichia coli(1) | 500(2) | 1,000(2) | 900(3) |
Standards for coastal and transitional waters
Parameter | "Excellent" | "Good" | "Sufficient" |
Intestinal enterococci(1) | 100(2) | 200(2) | 185(3) |
Escherichia coli(1) | 250(2) | 500(2) | 500(3) |
(1) Colony forming units per 100 millilitres ("cfu/100 ml").
(2) Based upon a 95-percentile evaluation
(3) Based upon a 90-percentile evaluation
Methodology
2.-(1) in this Schedule SEPA must base the "percentile values" and calculate same in compliance with the provisions set out in Annex II of the Directive.
Classification
3.-(1) At the end of every bathing season, the SEPA must classify a bathing water as "poor" if, in the set of bathing water quality data used, the percentile values for microbiological enumerations are higher than the "sufficient" standards set out in paragraph 1.
(2) At the end of every bathing season, SEPA must classify a bathing water as "sufficient" if-
(a) in the set of bathing water quality data, the percentile values for microbiological enumerations are equal to or lower than the "sufficient" standards set out in paragraph 1; and
(b) the bathing water is not classifiable as "good" or "excellent".
(3) At the end of every bathing season, the SEPA must classify a bathing water as "good" if-
(a) in the set of bathing water quality data, the percentile values for microbiological enumerations are equal to or lower than the "good" standards set out in paragraph 1; and
(b) the bathing water is not classifiable as "excellent".
(4) At the end of every bathing season, the SEPA must classify a bathing water as "excellent" if, in the set of bathing water quality data used, the percentile values for microbiological enumerations are equal to or lower than the "excellent" standards set out in paragraph 1.
Short Term Pollution
4.-Where a bathing water is subject to incidents of short-term pollution, it may only be classified under paragraph 3 as "sufficient", "good" or "excellent" if the required information has been provided and management measures are in place in accordance with regulations 8 and 12.
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