The Scottish Government

« Previous | Contents | Next »

Listen

Annex B - Partial Regulatory Impact Assessment

Partial Regulatory Impact Assessment

The Bathing Water (Scotland) Regulations 2008 (transposing legal requirements of Directive 2006/7/ EC)

This is the Partial Regulatory Impact Assessment ( RIA) of the forthcoming Bathing Water (Scotland) Regulations 2008. The RIA is being consulted upon in tandem with the draft Regulations. Your views and comments on the potential costs and benefits of this proposed new legislation are welcome, and will help shape the final RIA, which will be completed after the consultation.

Purpose and intended effect of measure

The Objective

The objective of the Regulations is to transpose the parts of the revised Bathing Water Directive (2006/7/ EC) ⁵⁴ into Scots law that are not already met under existing legislation. The Scottish Ministers are legally obliged to bring such legislation into force by 24 March 2008. The revised Directive will eventually repeal the provisions of the existing Directive (76/160/ EEC) ⁵⁵, which is largely implemented in Scotland by the Bathing Water (Classification) (Scotland) Regulations 1991 ⁵⁶. The revised Directive introduces greater protection for bathers, not only through stricter microbiological standards, but with new requirements to provide the public with information on the quality of bathing waters, therefore allowing them to make informed choices on whether they wish to bathe or not. To further public health protection, the revised Directive also requires management measures for non-bacteriological pollution at bathing waters, including pollution from cyanobacteria, marine phytoplankton, macro algae, litter and other waste.

It is important to note that while the Regulations require SEPA to ensure compliance with the Directive's bacteriological standards is achieved by 2015 (the timescale required by the Directive), the Regulations themselves do not set the measures by which this will be achieved. It is expected that SEPA will utilise existing powers under the Water Environment (Controlled Activities) (Scotland) Regulations 2005 ⁵⁷ and forthcoming ones under the proposed Water Environment (Controlled Activities) (Scotland) Amendment Regulations 2008 for tackling sources of pollution that may impact on bathing water quality ⁵⁸. This RIA does not make reference to costs incurred through the use of other regulatory measures to ensure compliance. The potential impact of this other legislation in meeting the requirements of the revised Bathing Water Directive will be examined as part of an overall impact assessment of the Water Framework Directive (2000/60/ EC) ⁵⁹'s River Basin Management Plan, to which bathing waters are an integral part. The Scottish Government is carrying out an in-depth qualitative impact assessment for the River Basin Management Plans for both the Scotland and Solway-Tweed River Basin Districts, for completion in Autumn 2008.

The Background

The 1976 Bathing Water Directive was among the first environmental Directives introduced by the European Commission. Its aim was to protect bathers from pollution, primarily microbiological from human sewage sources. As within the rest of Europe, significant investment by Scottish Water and its predecessors in treatment works has reduced the risk of pollution of bathing waters from raw sewage. It was against this background of improved compliance, a greater scientific understanding of the risks that bacteria can have, and a higher awareness of what triggers pollution events, that the European Commission undertook to revise its Directive.

Adopting microbiological parameters from the World Health Organisation, the standards proposed by the revised Directive were to be much more stringent than those in the current Directive. The revised Directive also increases public participation in matters relating to bathing waters, and puts more onus onto the operators of bathing waters and public bodies to provide information to bathers to allow them to make informed decisions as to where and when they wish to bathe.

Various other provisions were agreed during the finalising of the Directive, which the Scottish Government had a say on through its input into the UK line during the negotiations. These included the addition of another classification, 'sufficient', to give four in total (poor, good and excellent being the others). Without this additional classification, it is likely that many more Scottish bathing waters would have been deemed poor once classification begins under the revised Directive from 2015, even though sufficient quality still provides protection. Provisions were also introduced to allow the discounting of poor results during short term pollution events when prior warning of the risks of bathing at such times is given to potential bathers.

The Directive finally came into force on 24 March 2006, following a lengthy negotiation process. It repeals the existing Directive at the end of 2014, while its provisions come into effect in stages from next March onwards. Our draft Regulations propose to transpose the Directive at the latest dates given by the Directive, in conjunction with the rest of the UK. This gives the opportunity for SEPA to adapt their science to the new regime, for bathing water operators to install the necessary information to bathers, and for local authorities to get acquainted with their new responsibilities. Stakeholders such as Scottish Water, SEPA and the farming industry will also have an opportunity to work together to ensure all Scotland's bathing waters meet compliance with the sufficient standard of the Directive by 2015.

Rationale for Government Intervention

Article 18 of the revised Bathing Water Directive requires that Member States shall bring into force the law, regulations and administrative provisions necessary to comply with the Directive by 24 March 2008. As it is EU legislation, Scottish Ministers are bound by the Scotland Act 1998 to fully transpose all the provisions of the revised Bathing Water Directive.

Consultation

As well as the consultation paper to which this partial RIA is part of, the Scottish Government had previously outlined its initial thoughts on implementing the Directive. These were published in March 2006 in the strategy paper, "Better bathing waters: meeting the challenges of the revised Bathing Water Directive in Scotland" ⁶⁰ to coincide with the Directive coming into force.

Within Government

The Division within the Scottish Government responsible for producing this partial RIA has consulted internally on its contents with those with a policy interest, for example, economists, agriculture, tourism, public health and the water industry. It is also the intention to consult with the Scottish Environment Protection Agency, Scottish Water and Local Authorities.

Public Consultation

The partial RIA is being published alongside the draft Regulations for a full public consultation. This paper is being sent to a wide range of stakeholders, including beach operators, farming interests, tourism bodies and to community groups with a close interest in Scotland's existing bathing waters. Any responses received on the partial RIA will be fully analysed and the comments taken on board in finalising the assessment.

Options

• Option 1: No Regulations (the "do nothing approach"). This would not meet the requirements of the Directive.
• Option 2: Bringing the Regulations' provisions into force earlier than required under the Directive. This would meet and exceed the requirements of the Directive.
• Option 3: Extending the Regulations' provisions outwith the bathing season, namely signage requirements and monitoring. This would still meet and exceed the requirements of the Directive.
• Option 4: Bringing the Regulations' into force by the latest dates allowed under the Directive. This would meet the requirements of the Directive.

Costs and benefits

Sectors and groups affected

In considering the costs and benefits of each of the options, it is important that the various sectors and groups on which the proposed Regulations will impact are properly identified and considered. This RIA recognises that the following bodies and individuals might be affected by the different options:

• Bathers (as well as other water users)
• Bathing water operators (whether private, local authorities or other public bodies)
• Local authorities
• Scottish Environment Protection Agency ( SEPA)
• Scottish Water (in terms of providing information)
• Tourism interests
• Health boards

While the Regulations require compliance with the sufficient standards by 2015, as mentioned in paragraph 3 (above), they will not be setting the measures by which this will be achieved. Therefore, stakeholders who may be required to undertake measures to ensure compliance, for example, Scottish Water and farmers, will not be affected by these Regulations for such matters, but rather through other legislation through which these Regulations' compliance aims will be met. Equally, we have not attempted to quantify the benefits that the new Directive will certainly bring - improvements to public health, the benefit to tourism and the value that the public put on having clean bathing waters. These issues will be explored in the Government's assessment of the environmental, economic and social impacts of the River Basin Management Plans, of which bathing waters are a part.

Consultees are also invited to identify any further sectors or organisations not listed in the bullets in paragraph 12 that they believe might be impacted upon by the Regulations.

Benefits

Option 1: Option 1 is the baseline against which Options 2, 3 and 4 can be compared. It would not involve any new implementation or policy costs. Continuing to monitor bathing waters under the current regime would benefit both bathing water operators and relevant local authorities in that they would not face any obligations, as they will under the revised Directive. SEPA would be able to continue sampling for the old parameters, rather than having to develop expensive techniques for the new ones. Bathers would continue to be protected under a known regime.

Options 2 and 4: There are clear benefits from implementing the Directive, particularly in relation to better health protection, especially for children. Bathing in waters contaminated by faecal pollution can lead to illness, such as gastroenteritis. Research ⁶¹ carried out for the Government shows that families with children are the most common users of Scottish beaches, with these children more likely to be present in the water than any other users. The research also showed that the two most important factors for those visiting Scottish beaches were the cleanliness of the beach and of the water. A third of the Scottish population also stated that one of their reasons for going to a beach was to go paddling, swimming or to take part in other activities in or on the water. Therefore the better protection that the revised Directive offers brings clear benefits to a very large number of people, not only reducing the risk to them of becoming ill, but potentially reducing the burden on the health service and helping the economy by reducing possible absenteeism from employment or education.

However, as we have said previously, the Regulations only implement part of the Directive, and the immediate focus of this RIA is the benefits that the Regulations themselves will bring. We have listed below what we perceive would be the main benefits to arise from these Regulations. The benefits from pursuing either Option 2 or 4 would be the same - the only difference is that the benefits from following Option 2 would be achieved earlier. Following Option 3, which only considers the extension of provisions under the Regulations, would provide greater protection and information over a longer period than just during the bathing season.

Bathing water operator - We believe the operator of the bathing water should be responsible for signage informing bathers about the quality of the bathing water, and to be responsible for removing litter and other waste within the designated area. Operators will generally have a vested interest in ensuring the bathing water is suitable for bathing, particularly if they have facilities nearby which depend on the beach. They will also be aware of the best location to site any signage in order that it can be read by the maximum number of visitors. This also helps encourage local "ownership" of the bathing water. The bathing water operator will have to be identified from 2008, the earliest date for either Option 2 or 4, and is irrelevant to Option 3.

Designation of bathing waters - the revised Directive requires Ministers to designate bathing waters where it is expected a large number of people may practise bathing. Under the current Directive, we have generally only designated bathing waters where there has been local support for doing so. This does not protect bathers at other sites which are currently undesignated which might have heavy usage. The new provision will address that imbalance. This must come into force from 2008, the earliest date for either Option 2 or 4, and is irrelevant to Option 3. The Regulations would also allow the de-designation of sites that have little usage. This will bring direct savings in terms of the obligations required at bathing waters under these Regulations.

Bathing water profiles - SEPA are required to compile a profile on every bathing water which will clearly inform the public about the potential health risks due to bacteriological, cyanobacterial, macro algae and/or marine phytoplankton contamination from bathing at a particular site. This needs to be achieved by 24 March 2011 at the latest. How early this could be implemented for Option 2 is dependent on when a working group established by Member States and the Commission to discuss this further delivers its outcomes. This is irrelevant to Option 3.

Monitoring, assessing and classifying bathing waters under new parameters - The new parameters to be monitored, Intestinal enterococci and Escherichia coli, give a more up-to-date scientific indication of the risks to bathers' health from microbiological pollution. They are stricter, therefore further enhancing public health. The flexibility allowed in sampling also ensures that SEPA's resources can be better directed to sampling the water on the days when bathers are actually likely to be present. Assessing and classifying bathing waters on a number of years data presents a truer picture of the overall quality, rather than the traditional snapshot approach. Classification under the Directive is required at the latest by 2015. Based on four years of data, it could conceivably be undertaken by 2011, if Option 2 were to be followed. Sufficient quality or above should be met by 2015. Again if Option 2 was to be followed, this could be set for possible achievement for 2011 at the earliest. This would also allow an additional four years for compliance to be met before the Directive's deadline of 2015 is reached.

Monitoring for longer than the bathing season (Option 3) would provide water quality information to members of the public who chose to use bathing waters outwith the traditional bathing season.

Public information including signage and other information - The revised Directive puts great emphasis on the need for the public to be informed of the quality of bathing waters that they might wish to use. Every designated bathing water in Europe will require to have signage erected, giving clear advice to bathers. There are clear benefits from having signage at beaches to inform the public about the quality of the water and potential risks to their health. By providing this advice, bathing water operators will be able to show that they are protecting the health of bathers using their sites. In 2003 the Government trialled the use of electronic variable messaging signs at a number of bathing waters in Scotland which were able to inform bathers of the potential quality of the bathing water ⁶². Market research ⁶³ carried out following installation of the signs showed that signage was positively received by the majority of potential bathers, with 80% stating that the sign had increased their awareness of water quality at the site they were visiting.

Information will also need to be made available over the internet and through other means, further giving the public an opportunity to make an informed choice on whether to bathe. The Regulations also clarify who is responsible for providing information and when - a clear benefit to bathers by removing the current ambiguity.

While information must be provided by 2012, the exact format of signage is still being determined by the Commission in conjunction with Member States, so it is not yet possible to determine how early this provision could be brought in. While we cannot make a clear distinction between Options 2 and 4 at this stage, it would be normal to expect operators to be updating and/or installing signage in the years running up to the signage requirement coming into force, as signage has a finite lifespan. There would obviously be financial benefits to bathing water operators in allowing them to install new signs to the Directive's design prior to 2012, if this saved them having to install temporary signage until 2012 (Option 2).that they would be intending to install anyway. There would obviously be a direct benefit to bathers if the information was made available earlier. It is also unclear whether bathing water operators will choose to display signage all year round, as is the case with many existing bathing beach signs. If they do (Option 3), this would provide important information to users outwith the bathing period.

The revised Directive also allows samples to be discounted during certain pollution events, provided information is given to the public regarding the risk to their health. This will require SEPA to give proactive warnings to bathers or advise bathing water operators where it has identified such risks. The variable messaging signs mentioned above, and which are now operated by SEPA, have trialled this provision. This benefits bathers in that a warning is given of predicted current pollution, and the discounted sample would thus not be representative of when people would normally be bathing. There may be some benefit in providing predictive warnings to users outwith the bathing season (Option 3), although the requirement for discounting would not be necessary. Information also needs to be provided to warn the public of other potential pollution events - these are discussed below.

Management measures at bathing waters affected by cyanobacterial pollution - The Regulations require where cyanobacteria is present and a health risk identified, measures must be taken to reduce the threat to bathers, including its possible removal by the local authority. This is tied to the profile, so does not need to come into force until 2011 at the latest. Cyanobacteria can be very harmful to public health, so there is a very real benefit from this provision. However, it is also extremely rare in Scottish bathing waters, so there is unlikely to be too great a call for action to remove it. The Scottish Government has already issued guidance ⁶⁴ for minimising the risks to public health from cyanobacteria. This includes options for its removal. The Regulations provide in legislation what is already largely suggested in the guidance, including duties on local authorities. The Government would also expect public bodies to follow the guidance, which is not limited to the bathing season, including providing information, so that earlier adoption of this measure prior to 2011 (or outwith the season) does not bring any extra benefits.

Management measures at bathing waters affected by macro-algae and marine phytoplankton proliferation - The Regulations also require that where the profile indicates a tendency for the proliferation of macro-algae and marine phytoplankton, suitable management measures are undertaken. This would include signage erected by the local authority as well as its possible removal where it is determined a health risk or unacceptable. This is a new provision, and its inclusion would protect bathers from the serious health risks that can develop from algal blooms. However, there is equally little evidence of marine phytoplankton exhibiting a health risk in Scottish waters, so no action would be required for the vast majority of bathing waters. We also propose some flexibility in determining whether macro-algae or seaweed is a health risk or is unacceptable, so that local authorities will only be required to take action in certain cases. Option 2 would suggest bringing this into force earlier than 2011, the date by which the Directive requires us to do so. While there may be some benefits in doing so earlier, even though the perceived risk in Scotland is so low, it requires SEPA to have properly profiled any risks, which SEPA are only now beginning to undertake. There would be benefits in undertaking such management measures outwith the bathing season (Option 3).

Management measures at bathing waters affected by other pollution - The Regulations require that regular inspections are carried out for pollution such as tarry residues, glass, plastic, rubber and other waste, and for remedial action to be carried out where necessary. We propose that beach operators should be responsible for remediating the bathing waters that they are responsible for - the benefit here is that this ties in with existing waste legislation and does not introduce a new regime at odds with current practice. Operators will also have an interest in ensuring the bathing water is cleaned of waste, especially if it has an economic value to them. The Regulations only cover the bathing water area - other parts of the beach are covered under existing waste legislation - and in practice, most beach operators already clean the exposed tidal parts of the bathing water, when in the process of cleaning the beach, so any additional costs are likely to be minimal. There would undoubtedly be benefits to those using bathing waters from introducing such management measures at the earliest opportunity in line with Option 2, and outwith the season (Option 3).

Relevant local authority duties - The Regulations propose that each relevant local authority identifies an official who has overall responsibility for the 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. This does not mean that local authorities need to recruit additional staff. We would expect them to utilise existing officials where necessary. This provision would only need to be brought into force when the other duties on local authorities commence.

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.

Costs

Option 1: As well as being legally indefensible (the Scotland Act 1998 requires that Ministers meet their European obligations), this option would be politically and financially costly. Failure to make these Regulations would prevent the transposition of the Directive and would lead to the UK being infracted by the European Commission, with the potential for heavy fines imposed on the Member State if steps are not taken to redress this issue. These fines may have to be met out of Scottish Government funds, impacting on the service it provides to the people of Scotland. The Scottish Government would also be failing to protect the health of bathers in Scotland if it did not adopt the new regime. This would have knock on costs to beach operators and the tourist industry, with possibility of Scottish beaches being labelled dirty. Also, as bathing waters are protected areas under the Water Framework Directive, any failure to implement the Directive could mean that we have failed to implement the WFD.

Options 2, 3 and 4: The costs associated with introducing these Regulations will certainly be higher than if we were to maintain the existing regime. However, as we have already explained, the option of retaining the status quo is not legally viable. This leaves Options 2, 3 and 4 as the only ones possible. The difference in costs between these Option 4 and the others, is that they would have to be met earlier under Option 2, while there would be additional pressures on resources if the year round provisions of Option 3 were to be chosen.

Bathing water operator - As the Regulations introduce requirements on bathing water operators for the first time, we accept that there will be new costs on them, particular in relation to signage and other pollution control measures, which are both commented on below. The majority of operators are likely to be public sector bodies, but we are aware that there are a small number of private operators.

Designation of bathing waters - The revised Directive requires that we designate bathing waters where we expect a large number of bathers to be present. Following surveys undertaken in 2003, the Government identified a potential additional twelve bathing waters in its 2004 consultation paper on bathing water identifications ⁶⁵. These will bring costs for monitoring, providing information and meeting the various management measures. It is accepted that there will be additional costs in terms of meeting compliance, but these are not considered in this RIA. Equally, there is the possibility of delisting sites which do not have heavy usage, and sites may be dedesignated after measures have already been put in place, for example signage. To meet the requirements of the Directive, sites would still have to be considered on the basis of usage during the bathing season, rather than at other times.

Bathing water profiles - SEPA already undertake analysis of the impacts on bathing waters and report on these in their Pollution Reduction Plans, so it is expected that the requirement to complete profiles will not have significant cost implications. There may also be cost savings in that the Plans are updated each year, whereas profiles only need to be updated every two to four years depending on the bathing water classification. These Plans are also available on SEPA's website all year round, as it would be expected for the Profiles.

Monitoring, assessing and classifying bathing waters under new parameters - It is accepted that the new monitoring, assessment and classification regime will bring new costs to SEPA. SEPA currently operate on a fixed sampling basis, so utilising a sampling calendar will not pose any additional problems or costs. However, the revised Directive allows for flexible sampling and the Regulations make provision for this. If SEPA are to undertake flexible sampling, it would put more strain on their monitoring capability, especially due to the distances between some bathing waters and SEPA offices, and the possible need for on-call weekend cover to provide this flexibility. The Directive also requires more investigative sampling to show that pollution events are over. Again, we recognise that this might put a strain on SEPA's monitoring operations, especially if this requires rapid testing methods, which are still at an embryonic stage. If monitoring were to be undertaken outwith the season (Option 3), this could lead to quite substantial operational costs for SEPA, particularly at a time when there would traditionally be little use of the bathing water for bathing.

Public information including signage and other information - A central tenet of the revised Directive is the requirement to provide members of the public with information about potential risks to their health from bathing. This role falls on SEPA, bathing water operators and relevant local authorities. All bathing waters must have a sign installed by the 2012, which lists the information required under Regulation 8. This will be the responsibility of the bathing water operator. As signs may need to include specific symbols determined by the Commission, it is too early to say what the exact format the sign may take. However, a bare basic fixed panel type sign is likely to cost only a few hundred pounds apiece, although installation and potential design costs also need to be assessed. If a common design is developed for Scotland, this could bring costs down considerably. As the majority of bathing waters are coastal, signs will generally have a fairly limited lifespan, although this is very much dependent on how exposed the sign is to the elements, and what it is made of.

It will be important to let operators know in advance of these forthcoming requirements, so as to avoid unnecessary expense of purchasing new signs that do not meet the Directive's requirements. However, until the Commission's working group has determined the design of the symbols to be used, we are not in a position to know what will be required, so any signs installed prior to this will need to be replaced, at extra expense to the bathing water operator. Option 2 cannot be considered until the Commission delivers its verdict.

Operators will also have to factor in vandalism or accidental damage, as well as weathering and corrosion/rot so it is likely that signs may have to be replaced on average around once every decade or so. Signs will be required to provide information where bathing is permanently advised against. Not only will this have cost implications in terms of providing the sign, but the requirement to provide a permanent warning may dissuade people from visiting the bathing water, which may impact on the local economy (however, the research into the effectiveness of the variable messaging signs somewhat surprisingly suggested that only around 20% of people thought that it influenced their behaviour ⁶⁶).

Some operators may chose to keep their signs up all-year-round (Option 3), and this would have a direct bearing on the lifespan of the sign, with the sign needing to be replaced more frequently than signage only installed during the bathing season.

Local authorities will be responsible for ensuring that an updating of the sign is undertaken to indicate when an abnormal situation occurs, or where there is a cyanobacterial, macro-algae or marine phytoplankton proliferation. They will also be responsible for informing the public when short-term pollution is predicted in the absence of a SEPA variable messaging sign, with SEPA providing them with the relevant information. This will incur not only the cost of producing a temporary addition to the main bathing water sign, but also local authority time in installing the additional warning, and modelling work by SEPA to enable the predictions to be made.

Where the SEPA sign is present, SEPA is responsible for advising that pollution is present or predicted. SEPA currently has ten signs inherited as part of a Scottish Government project. Their aim is to increase this number to over twenty at sites where prediction is possible. SEPA also undertake the prediction work necessary to inform of short-term pollution events, which includes the use of a network of river gauges. There are two types of cost associated with SEPA's signage. Capital expenditure of signage is around £30-40,000 per sign. This also includes the purchase of additional rain gauges where necessary. Computer software was also specially developed which had a one-off capital cost of £10,000. There are also annual running costs including the installation and removal of signs at the start and end of each season, as well as staffing costs to operate the signs. SEPA intend to increase the number of signs prior to 2012 (which would meet the requirements of Option 2), but this is dependent on internal funding and suitable modelling of the bathing water. Having the signs installed prior to 2011 would have higher operational and capital costs for SEPA than if Option 4 were chosen, although it must be remembered that ten signs are already an integral part of SEPA's current bathing water work.

If SEPA were to keep the signs installed outwith the bathing season, there would be considerable extra costs incurred, not only in maintaining and replacing the signs, but through the need to undertake the monitoring and modelling necessary to provide the necessary predictions.

Management measures at bathing waters affected by cyanobacterial pollution - We have already said that the occurrence of cyanobacterial pollution at Scottish bathing waters is very rare. Even if it were to occur, the recent Government document on blue-green algal outbreaks ⁶⁷ already requires that local health boards and authorities have a plan of action to deal with any risk, so any additional costs are likely to be minimal. Public information is also required under the guidance, similar to the duty under the Regulations to update the bathing water sign. If there is an outbreak, removal would incur costs; equally failure to do so by leaving the scum lying could potentially damage the local tourist economy.

Management measures at bathing waters affected by macro-algae and marine phytoplankton proliferation - The potential costs associated with management measures for macro-algae and marine phytoplankton need to be considered separately. The Regulations require that management measures are undertaken where it is determined by the interested parties that a proliferation either poses a health risk or is unacceptable. Risks from marine phytoplankton blooms, in the form of a scum or mat, are similar to those for cyanobacteria, but like cyanobacteria, occurrences in Scottish bathing waters are negligible. Any costs associated would be for warning signs (see above) and possible removal, similar to those for cyanobacteria. Due to the potential health risk of marine phytoplankton blooms (such as red tide), it is likely that the proliferation would be judged in terms of its health impact rather than its acceptability.

Macro-algae, otherwise known as seaweed, are in turn more likely to be considered on their acceptability rather than their health risk. We believe guidance, similar to the Government's existing Code of Practice on Litter and Refuse ⁶⁸, may be required in order to help determine what is acceptable. Where macro-algae is classed as unacceptable, costs to local authorities will be similar to those incurred for the current removal of litter from beaches for which they are responsible. Costs are dependent on the type of bathing water (stony or sandy foreshore), physical access and the variety of macro-algae present. As it is an organic material, it is also probable that local authorities would have to ensure disposal is not through landfill in future, except where heavily contaminated through waste.

Management measures at bathing waters affected by other pollution - In terms of costs incurred for the removal of waste from bathing waters, this is also dependent on the nature of the bathing water (whether mechanical means can be used or hand picking only), and the form of waste present. For practical reasons, we would expect the beach operator to focus on the removal of waste from the part of the bathing water exposed at low tide. Certain types of waste that may be washed ashore would fall more specifically within the ambit of other forms of regulation in terms of its removal, largely due to its immediate risk to human health i.e. chemical containers. The majority of bathing water operators are likely to be local authorities who already have a duty to remove litter from above the high water mark (where most waste is likely to be deposited) under the Environment Act 1990 and at a frequency greater than that proposed under the Regulations. In practice, most local authorities already clear below this mark where they can and as such the cost of removing waste is going to be fairly negligible in terms of existing duties.

Private operators do not currently have to clean beaches, unless it has been designated a litter control area by the local authority, and only then it would be the area above the high water mark. We accept there will be additional costs incurred here, but where the operator has a financial interest (and which we propose in the Regulations that SEPA will where possible, be taking into consideration in identifying the bathing water operator), it would be in their interest to clean the bathing water. However, we equally recognise that in some cases the bathing water operator may be identified on the basis of their ownership of the main access route to the beach, and would have less of a direct interest in the bathing water being kept clean than if they had financial considerations. It is also important to note that these requirements would only apply to litter and other waste below the high water mark (the area designated as a bathing water). Waste above that line would continue to be dealt with through separate waste legislation.

Relevant local authority duties - We would expect local authorities to identify a point of contact from within their current staff who have an existing responsibility in this area, rather than needing to recruit, in order to save on additional expense.

Preferred option

Option 4 has been identified as the preferred option on the basis that it delivers the benefits to bathers in a timeframe suitable for stakeholders to adapt to the measures required. This would allow SEPA to adapt their scientific capabilities to the new regime (sampling is not yet carried out under the new parameters) and rapid testing, required for short term and other pollution events, is still at the research stage. It would also allow bathing water operators to install the necessary information to bathers once the Commission and Member States have determined what will need to be provided, and for local authorities to get acquainted with their new responsibilities.

Option 1 is neither legally, politically or financially viable, and as such its costs outweigh the few advantages it may have. Option 2 would obviously cost more than Option 4 in that duties on SEPA, local authorities, beach operators and others would have to be undertaken earlier. While there would be benefits in implementing parts of the Directive earlier, for other sections, the requirements are already being met - for example cyanobacteria - or still unclear - signage, sampling methodology. It would therefore make sense to follow the timescale provided for under the Directive. This after all was the result of measured consideration between the European Parliament, the Commission and the Member States. Option 4 also provides for transposition of the Directive at the same time proposed for the rest of the UK, which makes sense, as the Commission will only consider completion of transposition of the Directive on a UK basis.

Option 3 has obvious attractions in that it would provide potential water users with information about water quality out with the bathing season, as well as putting measures in place to reduce certain types of pollution should they occur. However, the aim of the Directive is to protect bathers, and Scotland's climatic conditions mean that bathing is very rarely practised out with the summer months. If there are no bathers to protect, this leaves little rationale for regular monitoring, SEPA predictive signage or management measures to be carried out outside of the bathing season under this Directive. There may well be fixed signage up all year round, but we would leave that to the discretion of the individual bathing water operator, rather than unnecessarily encouraging signage for periods when such information is not required, especially as they have a limited lifespan. As we have already said, general management proposals already exist for dealing with algal blooms and local authorities would still be responsible for cleaning amenity beaches out of season, albeit less frequently. On the basis that bathers are unlikely to be present out with the bathing season, Option 3 can be discounted, as the costs to SEPA, local authorities and bathing water operators outweighs the benefits to any bathers present.

Pollution control measures

Meeting the requirements of the revised Bathing Water Directive is an integral part of the existing Water Framework Directive (2000/60/ EC). The legislation to implement the pollution control requirements of the Water Framework Directive are either already in place or will be shortly. As stated in paragraph 3, this RIA does not examine the potential costs and benefits of using the pollution control measures already made under other legislation as these have either been subject to separate RIAs or will be examined in the Scottish Government's forthcoming assessment of impacts of the River Basin Management Plans. In order to achieve compliance with the revised Bathing Water Directive's standards it is envisaged SEPA will utilise the powers under the Water Environment (Controlled Activities) (Scotland) Regulations 2005 which we intend to supplement shortly with the forthcoming diffuse pollution General Binding Rules. The completed RIA for the 2005 Regulations ⁶⁹ is available on the Government's website, whilst that for the General Binding Rules will be available when Regulations containing them come into force in early 2008, (subject to parliamentary approval).

Small/Micro Firms Impact Test

As we have said earlier, the Regulations do not introduce new measures for tackling the potential pollution risk to bathing waters. Any impact of the Regulations on farmers and businesses within bathing waters with private sewerage systems will be from existing legislation under the Water Environment and Water Services (Scotland) Act 2003 which transposes the WFD. This will be considered in the Government's forthcoming impact assessment for the River Basin Management Plans.

Businesses most likely to be affected by the new Regulations are those that SEPA determine are the bathing water operator. This could include caravan park operators or others who have an interest in promoting the bathing water. Bathing water operators will have to provide the necessary signage to inform bathers of the quality of the bathing water. They will also have to visually monitor the bathing water for litter and other waste, implementing measures to alleviate where necessary. However, by informing the public and ensuring there is no waste to endanger health, they are protecting, what for the majority of operators, will be a very important asset to their business. Consultation on this partial RIA will inform the Scottish Government of the impact that the Regulations might have on this important sector of the economy.

As well as consulting directly with bathing water operators, we will also engage with their representative bodies, such as the Federation of Small Businesses Scotland.

This partial RIA is particularly aimed at seeking the views of the Scottish business sector on the potential implications these Regulations may have on them. Small businesses who might be affected and their representatives are particularly invited to respond to this consultation.

Legal Aid Impact Test

These Regulations introduce rights of appeal (Regulation 20) against SEPA's determination of the bathing water operator, and against notices or proposed actions from a relevant local authority. In a very small number of cases, a private individual could foreseeably be identified as the bathing water operator (there are currently only five private beach operators in Scotland, out of 61 designated sites, and most of these are small businesses rather than individuals). As such, it would be prudent to determine whether the right of appeal could possibly introduce any additional burdens on the legal aid fund. Our regulatory proposals are being assessed by the Scottish Legal Aid Board, although it is the Government's view that the Regulations would not place an additional strain on legal aid resources as legal aid can only be granted to individuals therefore impact would be negligible.

Test Run of business forms

The draft Regulations do not introduce any business forms.

Competition assessment

We do not expect the draft Regulations to have any impact on competition. The Directive requires that all bathing waters reach the same sufficient standard or above by 2015, except where this is technically infeasible or disproportionately expensive. We accept that certain sites will initially be of better quality than others by the nature of their location and lack of potential pollution threats. It might also be determined that other sites may never reach sufficient and bathing be advised against on a permanent basis. This may well have a bearing on future beach usage, with the public more likely to visit a bathing water which exhibits good quality, than from using a 'dirty' beach, which the Regulations will require the operator to display signage indicating poor water quality. However, rather than distorting competition between beach operators, the standards set by the Directive and introduced by the Regulations are applicable to all and are designed to provide an equal level of health protection across all European Member States. The measures to achieve compliance in Scotland (separate from these Regulations), will be determined by the level of risk of failure at each bathing water, with the aim of achieving firstly sufficient then good status.

Enforcement, sanctions and monitoring

The Regulations make provision for either SEPA or the relevant local authority to serve notice against a bathing water operator to undertake the duties required under the Regulations. The Regulations provide for the local authority to undertake any of these duties when the bathing water operator fails to do so, either in whole or in part, including providing them with the relevant powers of entry. The local authority is also enabled to recover from the bathing water operator any reasonable expenses incurred in undertaking these duties. The operator equally has a right of appeal when a notice is served against them. The Scottish Government, local authorities and SEPA will be responsible for monitoring compliance with the Regulations.

« Previous | Contents | Next »