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CHAPTER 4: RESERVOIR SAFETY

Purpose of Consultation

4.1 The Scottish Government is seeking views on proposals to introduce a transfer of responsibility for enforcement of the Reservoirs Act 1975 in Scotland from local authorities to a single enforcement authority, and is keen to obtain feedback on which organisation may be best placed to undertake enforcement.

What is a Reservoir?

4.2 In the context of water resources, a reservoir is generally understood to be a place where water is retained by usually a man made structure to be reserved, for later use by agriculture, industry and domestic household use. The supply of water using such storage developed in the UK during the 19 ^th century alongside the development of sewer infrastructure and legislation to ensure the standard of drinking water to improve health. Indeed some 70% of all reservoir dams in the UK were constructed before 1900. Reservoirs are a key component within the water supply regime.

Why a Reservoirs Act?

4.3 The Act is an administrative structure to manage reservoirs, whether constructed or planned, that minimises the risk of water escaping and the potential damage and loss of life which could result. The Act provides for a regime of inspections and recommendations in relation to works on reservoirs and the functions and responsibilities of who will carry out those inspections and works.

4.4 In the Act, those with a statutory duty and their relationship to each other are outlined:

• Reservoir undertakers (usually the owners) have ultimate responsibility for the safety of their reservoirs. They must appoint a Panel Engineer (a specialist civil engineer who is qualified and experienced in reservoir safety) to continuously supervise the reservoir (Supervising Engineer) and to carry out periodic inspections (Inspecting Engineer). A Panel Engineer must also be appointed to design and construct a new reservoir or repair or make changes to an existing reservoir (Construction Engineer).
• "Panel" is referred to above. This is a panel set up by the Secretary of State after consultation with the Institution of Civil Engineers ( ICE). The ICE oversee the competency and qualification of their member engineers to undertake the inspections that ensure the continuing structural integrity of the reservoir and its associated apparatus such as embankments, valves and spillways. Once identified as proficient they are "panel" engineers and this is notified to the Secretary of State.
• Reservoir safety is a devolved matter for the Scottish Government, but the operation of the "panel" system, is administered on a national basis by DEFRA. A detailed outline of how this system of inspection and reporting operates is well understood by all engaged in the process. Full details and explanation of the operation of the Act are contained in "A Guide to the Reservoirs Act 1975", Thomas Telford Publishing, London, 2000. We do not seek to change this process.

This administrative structure has worked effectively and efficiently "to protect persons or property against an escape of water from a reservoir."

Reason for change

4.5 The safe operation and management of reservoirs to reduce flood risk is extremely important. The system of enforcement of this is essential, with reservoir operation being as free from risk as is practicable, given available resources. A uniformity of approach is achieved in assessing the integrity and safety of reservoir structures through the administrative arrangements outlined above; such uniformity in enforcement is also essential.

4.6 Currently, the enforcement of the Act in Scotland is the responsibility of the 32 Scottish local authorities. The biennial reports they submit indicate varying staffing and financial resource allocation to reservoir responsibilities amongst these authorities. This can be attributed partly, to geography and topography; for example Highland Council has some 125 reservoirs which fall within the ambit of the Act, whilst Glasgow City Council has only 2. However the enforcement role is considered an onerous burden which is disproportionate to the reservoirs located within many local authority areas. For example, two local authorities have responsibility for the enforcement of the Act for 21 reservoirs, some 1-2% of the total number of reservoirs in Scotland. However, both authorities experienced significant and lengthy problems in trying to establish ownership of one reservoir within each of their areas.

4.7 As the format of biennial reports has never been prescribed, they vary in format and in the detail of information contained within them. It is difficult, therefore, to quickly gain an overview of the situation regarding the essentials of reservoir safety in Scotland and meet the demands of modern administrative practice.

For example:

• the number of new reservoirs recorded;
• the number removed from the large raised category;
• the number of Supervising Engineers appointed;
• whether or not regular inspections have been commissioned and undertaken;
• recording and detail of any incidents;
• whether or not essential works "in the interests of safety" have been carried out.

In addition, the mapping of inundation as a result of a dam breach is not a statutory requirement; such maps and plans as exist have been compiled by reservoir undertakers for various reasons.

Proposals

4.8 The current approach to enforcement in Scotland was also undertaken in England and Wales until 1st October 2004, with 140 local authorities providing the enforcement function. Through the 2003 Water Act, England and Wales chose to transfer this important enforcement function to a single body; the Environment Agency. Whilst the Scottish situation is by no means as diverse as that evidenced latterly in England and Wales there would be clear staff and financial benefits and consistency of application by establishing a single enforcement authority for Scotland. Most importantly, the information essential to gauge the operation of the enforcement regime, would be collected, collated, analysed, understood and acted upon by one body.

4.9 Under the proposed reform, the Reservoirs Act 1975 would be amended to provide for the duties and powers given to local authorities, except those relevant to local authorities' functions as reservoir undertakers, to be transferred to one single body. This proposed transfer of responsibility for enforcement of the Reservoirs Act 1975 would ensure a uniform and efficient application of legislative powers throughout Scotland. The transfer would ensure that one body assumes full responsibility for the following:

• Maintaining a register of reservoirs (and making this information available to the public);
• Ensuring that the Undertaker has appointed a Supervising Engineer;
• Ensuring that the Undertaker commissions regular inspections of the dam by an Inspecting Engineer;
• Enforcing the Reservoirs Act 1975 by influencing, warning, cautioning and ultimately prosecuting non-compliant Undertakers;
• Commissioning essential works required in the 'Interests of Safety' in the event of non-compliance and recouping full costs incurred from the Undertaker;
• Ensuring that the Controlled Activities Regulations ( CAR) licensing requirements and similar regulation of the impact of works are granted;
• Producing a Biennial Report for submission to the Scottish Government;
• Recording and cataloguing detail and specifics of any incidents, to provide a post incident reporting regime; and
• Acting in an emergency if the Undertaker cannot be found or identified.

4.10 In addition, a range of principles that now underpin the management of assets, risk management and the administration undertaken to ensure efficiency, have developed and become accepted practise since 1975. These should be applied to the enforcement of reservoir safety. Similarly, the application of quality management could also be undertaken by one single enforcement authority, to standards accepted by, for example BSI. A Quality Management System ( QMS) such as ISO 9001 can provide a management framework that makes available the necessary controls to address risks and monitor and measure performance.

Reservoir Flood Plans and Inundation Maps

4.11 The 2003 Water Act for England and Wales introduced greater flexibility within the Reservoirs Act over the future implications of climate change and rainfall patterns, and the need to ensure safety of population resident within the area that would be inundated were a dam to fail. Reservoir undertakers in Scotland are not required to produce inundation maps and the flood plan that would show the extent of the flood risk following an uncontrolled release of water from a reservoir. Any that have been produced are held by undertakers and are available for use by Category 1 responders for emergency planning purposes under the terms of Civil Contingencies Act, 2004. We believe that it is essential for local responders to have access to this information for any large raised reservoirs, which are categorised as endangering lives in a community.

4.12 "Floods and Reservoir Safety", 3 ^rd Edition published by the ICE, provides a 4 tier categorisation of dams and their potential effects upon communities were they to be breached. We are proposing that where a dam breach would give rise to significant hazards (those categorised as A or B in the above document) these will require to be considered in Preliminary Flood Risk Assessments under the Floods Directive.

4.13 We are not, therefore, proposing to amend the Reservoirs Act to impose a duty on reservoir undertakers to produce separate maps and plans in the same way as is required in England and Wales. Instead we are proposing that reservoirs will be assessed as part of a preliminary flood risk assessment under the Floods Directive, and where it is considered that a dam breach would give rise to significant hazards, then the competent authority under the Floods Directive ( SEPA) would be required to map that risk. Any subsequent plan that was undertaken to deal with that risk would form a part of the information and detail considered by strategic co-ordinating groups under the Civil Contingencies legislation, in order for them to plan more effectively for the risk of a reservoir breach. . The single enforcement authority would be expected to integrate within these groups for this purpose. As stated above Flood Risk Management Plans should cross refer to emergency plans for flooding developed by the Strategic Coordinating Groups.

4.14 We are proposing this approach because, although many reservoirs undertakers are large organisations such as Scottish Water, SEPA or local authorities, there are many others that are small clubs, such as angling clubs, that do not have the resources or the ability to produce inundation maps or plans. Furthermore, there is now a requirement under the Floods Directive to map floods with a low probability, or extreme event scenarios. By definition, a dam break would be an extreme event scenario. Our proposals mean that those reservoirs that pose a potential for significant risk, will have properly developed maps overseen by a single competent authority. For those reservoir undertakers that have already produced such maps as part of good working practice, we do not propose to duplicate the work that has been undertaken as long as it meets the required standards.

4.15 It is important to reiterate that the Bill will not cover the emergency response to a flooding event, whatever the source of that flooding, as this comes under the auspices of the Civil Contingencies legislation.

Extension of Enforcement Powers

4.16 Section 8 of the Act provides, for England and Wales, powers of enforcement to the Environment Agency (as enforcement authority) in the event of non-compliance by a reservoir undertaker with recommendations made by the supervising engineer in connection with the construction or enlargement of a reservoir. At the moment these powers are not available in Scotland, and we are proposing to amend the Reservoirs Act to ensure that they are available to the new enforcement authority for Scotland. This will extend the enforcement remit to ensure measures recommended in the interests of safety are carried into effect, within a specified timescale.

Monitoring and Supervision

4.17 Section 11 of the Act requires undertakers to keep a record of information of changes in water levels, overflow levels, leakages and settlement of walls and repairs carried out, and such other matters as may be prescribed. We are proposing to a system of post incident reporting that will include such information as is deemed appropriate by the enforcement authority following an incident. This will enable common causes and responses to be identified in order to strengthen our understanding and knowledge of any incidents as may occur.

Crown Application

4.18 The Act in Scotland is currently silent on binding Crown bodies to comply; this legislative review presents the opportunity to consider this. We would expect any views on this to be made in consultation responses.

Towards a Single Enforcement Authority in Scotland

4.19 In order to explore and assess practise and methods of enforcement, an initial scoping exercise was carried out during 2005 to seek to ascertain the views of the current enforcement authorities and other stakeholders engaged in water supply. The vast majority of responses (84%) were in favour of a transfer of enforcement responsibilities to a single national body. A minority of responders suggested a possible negative outcome of this proposal could be a potential loss of local knowledge should responsibility for enforcement be removed from local authorities. However, it was also acknowledged in the same replies that this knowledge could be built up and maintained within any new body.

4.20 As well as maintaining the status quo, the single national body considered suitable for the role of enforcement authority is the Scottish Environment Protection Agency Opinion on how they may undertake the role, the extension of the role to deliver an enhanced incident reporting system and integrate reservoirs within flood risk assessment and planning are strongly desired. It would be helpful for the analysis of consultative responses if the following questions could be considered and the supporting information for your answer outlined:

Q30. Do you believe enforcement responsibilities under the Reservoirs Act 1975 should be transferred to a single national body?

Q31. If so, should it be SEPA or another as yet unidentified body?

Q32. Are you content with the proposals for dealing with reservoir flood maps under the provisions of the Floods Directive, or do you think that there should be a statutory duty on reservoir undertakers to prepare reservoir inundation maps and plans, similar to the duty in the 2003 Water Act for England and Wales?

Q33. Do you agree that enforcement powers should be extended and post incident reporting included as an additional requirement?

Q34. Views on Crown application and any other comments?

What the change will deliver?

4.21 Although still in the early stages of the revised reporting cycle, the England and Wales experience has immediately proved to be a less time consuming process for those involved. The collation and analysis of all reservoir safety information gained through the enforcement role of the Environment Agency enables an accurate and concise summary to be made which then forms the basis for DEFRA to report to Ministers. The proposals would result in the same improvements if adopted in Scotland.

4.22 Such a transfer of authority would ensure greater resilience to the risk of dam breaches as one body would take responsibility for, and accumulate knowledge on, all reservoirs in Scotland. The concentration of enforcement duties within Scotland in one body would provide not only a more focussed approach on matters affecting the safety of reservoirs but also an opportunity for Ministers to receive advice and an overview from a single public body, sponsored by the Scottish Government, on the working of the Act in Scotland and the role of panel engineers.

4.23 The greatest gains would accrue in improved asset management; the application of objective risk management and the administration undertaken to ensure efficiency that have developed and become accepted practise since 1975. A resource as important as reservoirs in the water supply chain requires the application of a quality management regime to quickly address risks, monitor and measure performance, to ensure reservoirs continue their function in the 21st century and beyond.

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