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7. LEGISLATION PROPOSED FOR DESIGNATION

This section of the paper outlines each enactment that we propose to designate under section 2(8) of the WEWS Act, and provides a summary of the key reasons for the proposed designation.

There are 6 key policy areas where we propose designations, to facilitate a joined-up approach to securing compliance with the WFD. These are as follows:

• Sustainable flood management and surface drainage
• Marine and coastal activities
• Water supply
• Freshwater fisheries
• Land-use planning
• Sustainable transport

These are discussed in more detail in the following sections.

Your thoughts on any further legislation that should be considered for designation are particularly welcome.

7.1 Sustainable flood management and surface drainage

Policy context

As previously noted, the WEWS Act includes requirements for sustainable flood management ( SFM). Responsible authorities and SEPA are required to ensure co-delivery of WFD and SFM.

Currently flood prevention schemes are confirmed by Ministers, but may also require authorisation under CAR. We need to encourage good integration in planning stages, to ensure these separate processes can work together effectively. Guidance for responsible authorities explaining how these processes may work in tandem is under development. The Scottish Government is currently consulting on a future Flooding Bill which is expected to address Scottish issues as well as support transposition of the EC Floods Directive. We recognise the difficulties posed by the current parallel systems and the development of this Bill offers us an opportunity to streamline these separate processes.

Already in place is legislation that supports the development and long-term maintenance of Sustainable Urban Drainage Systems ( SUDS). Ongoing work by the Scottish Government is to confirm the standards that will be applied for SUDS and the ongoing management by Scottish Waters of SUDS in public spaces.

Flood Prevention (Scotland) Act 1961 ("the 1961 Act")

The 1961 Act confers a range of powers to enable local authorities to take measures to prevent or mitigate the flooding of non-agricultural land in their areas and for connected purposes. As a WEWS Responsible Authority, each local authority is obliged to exercise its normal functions under the 1961 Act so as to secure compliance with the requirements of the Directive. In addition, they are required to comply with the duties specified in section 2(4) of the WEWS Act.

As such, when exercising their functions under the 1961 Act, the local authorities are required to ensure that any flood prevention scheme and any modifications to it embody WFD requirements from the outset; for example, by taking steps to ensure that the proposal incorporates all practicable mitigation in the choice and design of schemes with the aim of avoiding or minimising any adverse impacts of proposed solutions on the water environment.

The Scottish Ministers are currently responsible for confirming such schemes as made by the Councils, in terms of section 4(1) of the 1961 Act. But in doing so, the Scottish Ministers also have the power to confirm the flood prevention scheme with or without modifications as they think fit. In our view, this power introduces a degree of discretion upon the Scottish Ministers which would permit them to innovate upon the scheme that has been proposed by the Council where appropriate.

For this reason, we consider it is desirable to designate the 1961 Act in respect of Ministers' functions. This approach also demonstrates our commitment to developing a joined-up policy that delivers our obligations for both WFD and sustainable flood management.

7.2 Marine and coastal activities

Policy context

The WEWS Act and CAR set out the broad framework for delivering our obligations under the WFD. However, although these instruments give SEPA powers to regulate activities impacting on the water environment, the scope of those powers is determined by the definitions of such activities under section 20(3) of the WEWS Act; and in particular by 20(3)(d). This specifically excludes SEPA from regulating engineering activities in transitional and coastal waters ( TRAC). This approach was taken as Fisheries Research Services (an Executive Agency of the Scottish Government) already have powers to regulate activities of an engineering nature in TRAC waters, via the Food and Environment Protection Act (Part II). The Scottish Government is now considering how to take forward the delivery of Ministers' WFD obligations in TRAC waters. We anticipate that proposals for applying WFD-compliant standards and conditions in TRAC waters will be brought forward in 2008 ³.

However it is important to note the wider context within which these considerations sit. The Scottish Government is currently considering the formulation of wider policy in relation to a Scottish Marine Bill. In the longer term our continuing WFD obligations in respect of coastal waters may be addressed by developments in that arena.

Food and Environment Protection Act 1985 (" FEPA")

Part II of FEPA (as amended) regulates, amongst other things, deposits associated with engineering works in coastal waters. In particular, section 5 of FEPA sets out a requirement for a licence to be obtained in certain circumstances for the deposit of substances and articles in the sea or under the sea-bed. The procedures to be applied by the licensing authority in determining whether to issue such a licence are then dealt with by section 8 of FEPA. Section 10 of FEPA also affords the licensing authority the power to take remedial action where a licence has not been obtained, or has not been complied with, where necessary or expedient for, amongst other things, the purpose of protecting the marine environment or the living resources which it supports, and to recover the costs of so doing from any person convicted of an offence in relation to the operation.

In Scotland the responsibility for issuing FEPA licences has been largely devolved to the Scottish Ministers, and the licensing scheme is administered and executed on their behalf by the Marine Laboratory, Aberdeen which is part of the Fisheries Research Service. There are however reservations in respect of oil and gas exploration and exploitation within UK waters beyond 3 nautical miles from the coastal baseline, or from operations falling within the subject matter of Part VI of the Merchant Shipping Act 1995 (Prevention of pollution) anywhere within UK waters, where the licensing authority is the Secretary of State.

In order to support the delivery of the Directive's requirements in Scotland - in particular as regards the hydromorphological impacts of activities in transitional and coastal ( TRAC) waters - we propose to specify FEPA as a WEWS Relevant Enactment. This will place an express duty on the Scottish Ministers ( FRS) to secure compliance with the requirements of the Directive when carrying out these functions.

This approach will provide an appropriate platform from which to review current operational policy and practice as applied by Scottish Ministers when considering licences under section 5 of FEPA in order to deliver the Directive's aims; for example, by making clear our expectation that the relevant WFD environmental standards and conditions should be one of the considerations to be applied to licences covering engineering activities carried on in TRAC waters.

7.3 Water supply

Policy context

Scotland is taking a risk assessment approach to the management and protection of public and private drinking water supplies. This is in line with the approach recommended by the World Health Organisation for drinking water quality and is likely to be adopted under the revised Drinking Water Directive. The WFD also recognises the need to protect drinking water sources. Our need to manage any pressures in those areas will be supported by Scottish legislation and funding programmes (such as WEWS, CAR, Nitrate Vulnerable Zone Action Programme, and the Scottish Rural Development Programme).

Scottish Water provides essential water and wastewater services to businesses and over 2.2 million homes. As well as its essential role in providing clean affordable drinking water and good sewerage services, the Scottish Water industry also plays an important role in the continuing improvement of Scotland's aquatic environment. Considerable recent investment in infrastructure has already led to improvements in drinking water quality, and significant reductions in pollution in rivers, estuaries and coastal waters. Investment has also reduced instances of flooding, as well as providing better quality services for customers. Ministers will shortly be starting the process of identifying the objectives for the water industry for the period 2010-14.

Water Safety Plans ( WSPs) are being developed for public water supplies by Scottish Water, in association with SEPA and Scotland's Drinking Water Quality Regulator ( DWQR). These will be a planning tool providing protection for public water supplies and will be aligned with the river basin management plan and regulatory action under CAR. Scottish Water has prepared an initial phase of draft WSPs which are being considered by the regulators and plan to prepare an additional 20 WSPs in 2007-08.

The Private Water Supplies (Scotland) Regulations 2006 include a requirement for a risk based assessment of large private water supplies for public and commercial use. Local authorities enforce the regulations as part of their wider public health role . For private water supplies attached to individual properties, owners are encouraged to assess if there are any risks, and if required, seek advice from the relevant local authorities regarding appropriate steps to lessen those risks.

Water Industry (Scotland) Act 2002 ("the 2002 Act")

Part III of the 2002 Act establishes Scottish Water as a body corporate, and confers responsibility on it for the discharge of the core water and sewerage functions as laid down principally by the Sewerage (Scotland) Act 1968 and the Water (Scotland) Act 1980. In discharging these functions Scottish Water must make a charges scheme which fixes charges to be paid for the provision of such services. Scottish Water is now a WEWS Responsible Authority and so must consider the requirements of the Directive from the outset of the development of its proposed charging scheme.

The system for determining such charges was amended in 2005 by the Water Services (Scotland) Act in order to clarify the roles of the different parties involved in the charge setting process, ensuring that policy and economic functions are clearly separated. As such, it is the Scottish Ministers who retain responsibility for setting the overall policy framework and are required to issue a statement of policy regarding charges under a charges scheme to both Scottish Water and the Water Industry Commission (" WIC"). It is then a matter for the WIC to determine the lowest reasonable overall cost for delivery of those objectives, and how the relevant costs should be split between different groups of customers.

Consequently, we consider that it will be essential for Ministers to ensure that this overall policy framework takes due account of the requirements of the Directive to recover the costs of water services in line with the polluter pays principle; for example, through the appropriate use of water pricing structures in order to provide adequate incentives for different types of water users to utilise water resources efficiently.

By also designating Ministers' functions under the 2002 Act, we will therefore ensure that the framework within both Scottish Water and the WIC operate takes due account of the Directive's requirements.

Natural Heritage (Scotland) Act 1991 ("the 1991 Act")

The 1991 Act provides a mechanism to enable Scottish Water to abstract sufficient quantities of water to maintain the public water supply, in so far as possible, during a drought situation. In particular, Part III of the 1991 Act empowers the Scottish Ministers, on the application of Scottish Water, to grant a drought order. Such an order may contain provisions to meet the short-term deficiency (for example, authorising Scottish Water to take water from another source subject to appropriate mitigation measures). Before the order may be granted, Scottish Water must be able to demonstrate that intensified efforts have been made to reduce leakage, rezone supplies and use redundant sources; and that these measures have been insufficient to address the situation.

In the most severe drought situations, where the deficiency is likely to impair the economic or social well-being of persons in the area, the Scottish Ministers also have the power to require more stringent steps to be taken to address the situation (for example, by authorising Scottish Water to prohibit or limit the use of water for such purposes as the Scottish Ministers think fit). Accordingly, by designating Ministers' functions under the 1991 Act, we will make clear our expectation that Ministers must give due regard to the requirements of the Directive when taking such decisions. Designation will also afford Ministers the essential flexibility to ensure that an appropriate balance can be struck between environmental, social and economic considerations in any drought situation.

The Scottish Government is currently considering whether these existing provisions needs further alignment with the provisions of CAR, to ensure that appropriate action can be taken in emergency situations as a result of drought.

7.4 Freshwater fisheries

Policy context

Freshwater fisheries are recognised as a key beneficiary of any improvements to the water environment from actions taken under WEWS. Critically the legislative and policy framework and those involved in the management of freshwater fisheries also play a key role in managing the water environment.

The Scottish Government has already taken a number of steps to achieve a co-ordinated approach to the implementation of our policies in this area. For instance, as the generation of hydro-electricity can have a major impact on fisheries, the Fisheries Committee (Scotland) has an important role in providing advice on such matters. In order to ensure coordinated advice on electricity proposals wherever possible, we have amended the Electricity Act 1989 and designated the Fisheries Committee (Scotland) as a WEWS responsible authority; and are now supporting the development of an Memorandum of Understanding between the Fisheries Committee (Scotland) and SEPA.

In addition, SEPA, FRS and the Scottish Government plan to consider the best way to coordinate Fisheries Management Plans (under the A Strategic Framework for Scottish Freshwater Fisheries) and future Eel Management Plans (under European regulation) with RBMPs so as to ensure a coordinated management of the water environment in Scotland.

Aquaculture and Fisheries (Scotland) Act 2007 ("the 2007 Act")

Part 1 of the 2007 Act underpins the Scottish Government's policy to address problems common to both aquaculture and wild fisheries, and to seek solutions to ensure the maintenance of healthy stocks of wild fish whilst at the same time promoting a sustainable aquaculture industry. In particular, steps have been taken to formalise arrangements for best practice to control parasites at fish farms and shellfish farms in Scotland, for example by promoting a co-ordinated approach to the chemical treatment of parasites on a catchment level.

However, as a contingency where best practice arrangements for the treatment regimes of sea lice are ineffective, Section 6 of the 2007 Act ensures that the Scottish Ministers can take steps to ensure the prevention, control and reduction of such parasites. Ultimately, such steps may require the discharge of chemicals into the water environment in order to bring the levels of parasite under control. Accordingly, we propose to specify the 2007 Act so as to formalise the policy intention underpinning section 6 - that the Scottish Ministers ( FRS) and SEPA will work collaboratively with each other in such circumstances to identify an appropriate balance between the protection of the water environment and fish health issues.

Diseases of Fish Act 1937 ("the 1937 Act")

Scotland has international obligations to protect our Atlantic salmon populations, and the 1937 Act (as amended) provides a range of powers in order to prevent the spreading of disease among salmon and freshwater fish. In particular, section 5A of the 1937 Act confers powers on the Scottish Ministers to arrange for the creation of barriers to the movement of fish in inland waters in Scotland where necessary or appropriate to contain any outbreak of the parasite known as Gyrodactylus salaris (" GS") and to facilitate the treatment of the water environment with chemical agents with a view to achieving eradication. Ministers are also given powers to maintain, dismantle and remove any such barriers. Section 5B then explicitly confers powers on the Scottish Ministers to arrange for the treatment with chemical agents of specified waters with a view to eradicating GS.

Clearly any such treatment has the potential to have a significant effect on the water environment, including deterioration of status. Therefore, by designating Ministers' functions under the 1937 Act, we will highlight that such powers may only be exercised in compliance with the Directive. The Scottish Government's Gyrodactylus salaris contingency plan sets out the respective roles and responsibilities of relevant organisations in dealing with any outbreak of GS; thus in practice we anticipate that FRS and SEPA will work closely together to deliver our joint objectives for fisheries and the water environment. We recognise that further work needs to be done on developing agreed processes, possibly including a fast-track approach for ensuring these joint objectives can be delivered effectively in the event of any outbreak.

7.5 Land use planning

Policy context

The land use planning system exists to guide the future development and use of land in Scotland. It plays an important role in shaping and protecting the quality of towns, cities and countryside. The planning system in Scotland is currently undergoing significant modernisation, and The Planning etc (Scotland) Act 2006, which amends the Town and Country Planning (Scotland) Act 1997, introduces substantial new provisions. Work has already begun to implement these.

The 3 main delivery mechanisms for the modernised planning system are outlined below.

a) Firstly, the Scottish Ministers have responsibility for preparing and publishing a National Planning Framework ( NPF). The Framework provides a strategy for Scotland's long-term spatial development. It identifies key strategic infrastructure needs so that we can plan for the right investment in the right places. The NPF provides a national context for development plans and planning decisions and informs the ongoing programmes of The Scottish Government, public agencies and local authorities. The Framework is a key element in the modernised planning system. The recent Planning etc. (Scotland) Act 2006 puts the Framework on a statutory footing which requires planning authorities to take the NPF into account in preparing their development plans. The Planning Act also makes provision for the Framework to be used to designate certain developments as national developments and establishes specific procedures for the consideration of such developments. National Developments may include major water and drainage related projects. Designation in the Framework as a national development establishes the need for such developments.

There are opportunities to create links between the NPF and the RBMPs, by ensuring the two planning processes inform each other:

• The NPF, currently under review, is drawing on information about the water environment identified as part of the preparation of the first draft RBMP. The RBMPs, being introduced in 2009 to manage our water environment, will in turn look to information set out in the NPF;
• In reviewing the Framework, Scottish Ministers will take into account the newly created River Basin Management Plans;
• It is anticipated that when the NPF is further revised in 2012, we can further align the two planning systems.

b) Development plans provide the statutory framework for safeguarding environmental quality, providing development opportunities and ensuring public involvement. Decisions on planning applications must be taken in line with the development plan, unless material consideration indicate otherwise. In a major move to simplify development planning, the Planning etc. (Scotland) Act will introduce a single tier of local development plans across large parts of Scotland. Within the four largest city regions, there will also be strategic development plans dealing with key land and infrastructure issues which cross planning authority boundaries.

Scotland's planning legislation allows many detailed aspects of the system to be prescribed by the Scottish Ministers through Regulations. The Scottish Government is currently consulting on draft regulations in relation to development planning, which contain two important proposals that could ensure more effective protection of the water environment. These are first that SEPA should be designated as a 'key agency' for development planning. This would require SEPA to be consulted on all strategic development plans and local development plans and require them to respond to the planning authority. Secondly, it is proposed that planning authorities, in drawing up their development plans, should have regard to the relevant river basin management plan. Consultation on these draft regulations is running until 20 February 2008 and copies of the consultation paper are available from www.scotland.gov.uk/topics/planning/modernising .

In relation to both the current and future system of development plans, the Scottish Ministers are the ultimate decision-maker in planning legislation. While they have a formal role in approving structure plans (and strategic development plans in future), they also have powers to seek modifications to or even approve local plans (local development plans in future) for example, if there are concerns around the implementation of legislation or national policy. As such, planning legislation ensures that before these plans are approved or adopted, the Scottish Ministers can seek to secure compliance with the Directive.

c) Development Management (previously known as Development Control) is a term defined in law which relates to the process of applying for planning permission for work defined as 'development'. This includes a wide range of building and engineering work as well as changes in the way land and buildings are used. Planning law also covers changes to listed buildings and control of advertisements as well as enforcement of planning law. In the modernised planning system applications for planning permission will be processed and scrutinised depending on whether they raise issues of national, major, local or minor importance.

Town and Country Planning (Scotland) Act 1997 ("the 1997 Act")

Although the Planning etc Act sets out the mechanisms for modernising the planning system, it does so by amending the Town and Country Planning (Scotland) Act 1997. It is therefore the 1997 Act which requires to be designated to ensure that the planning system and river basin management planning are effectively co-ordinated to meet our joint aims.

7.6 Sustainable transport

Policy context

Transport has an influence on river basins through new infrastructure development, operations and work to maintain and manage transport networks. These activities can affect the morphology of water bodies and contribute to diffuse and point source pollution loads. The planning, design, construction and operation of transport networks is now subject to regulation and control under the Controlled Activities Regulations ( CAR). Transport Scotland (an Executive Agency of the Scottish Government) takes these requirements into account in fulfilling its duties to deliver Scotland's capital investment programme for transport and in overseeing the trunk road and rail network operations. In order to minimise the effects of pollution from road run-off on the water environment and potential flood risk, Transport Scotland endeavours to incorporate SUDS measures in new trunk road schemes wherever practicable, with the proviso that the effectiveness of the drainage is not compromised. Transport Scotland is committed to working with SEPA and other agencies in reducing the environmental impacts of transport plans and projects.

Roads (Scotland) Act 1984 ("the 1984 Act")

Section 2, 7 and 19 of the 1984 Act confer powers on the Secretary of State (now the Scottish Ministers) to construct and maintain trunk and special roads.

By designating this Act as a WEWS relevant enactment, Ministers will be expected to consider possible impacts on the water environment when carrying out their functions under this Act. This will, for example, require Ministers to -

• Consider the route of any such transport system so as to avoid or minimise:
• the need to divert, realign, culvert or otherwise reinforce any part of the water environment;
• the loss of potential to enhance or restore the status of the water environment;
• the use of routes at risk from flooding, considering the anticipated long-term position;
• the need for modifications to the water environment or to flood plains. Such modifications may enhance flood risk elsewhere by, for example, reducing flood water storage;
• Ensure that where engineering modifications to the water environment are necessary, all practicable mitigations are incorporated into the choice and design of those works so as to avoid or minimise deterioration of the water environment;
• Consider incorporating sustainable urban drainage systems with an agreed maintenance programme as an integral part of any such transport system. This will help to avoid increasing flood risk elsewhere and protect the water environment against pollution from water run-off.

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