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PART 2 GROUNDWATER DIRECTIVE 2006/118/EC

Background

24. Groundwater is an important part of the water environment. It constitutes the large volume of water that is below the water table, it feeds surface waters, and it is a resource that can be used for drinking water, domestic or industrial purposes. This consultation paper sets out the proposed arrangements to complete the implementation in Scotland of the provisions in Groundwater Directive 2006/118/EC ('the Groundwater Directive 2006').

25. Groundwater is defined in the Water Framework Directive ² ( WFD) as all water which is below the surface of the ground in the saturation zone and in direct contact with the ground or subsoil. It is an important and increasingly used resource and has two important roles:-

• groundwater flow maintains surface waters and wetland areas; and
• groundwater is an essential source of water through abstraction from aquifers (eg for drinking water, agricultural irrigation, and industrial purposes).

26. However, if groundwater becomes polluted, rectifying it is difficult and expensive, and may not be practicable. We must therefore prevent or limit the input of pollutants into the groundwater in order to protect this valuable resource for current and future uses. There are 3 key pieces of European legislation that concern groundwater protection - the Groundwater Directive 80/68/EEC, WFD and the Groundwater Directive 2006.

27. The Groundwater Directive 80/68/EEC ('the 1980 Groundwater Directive') provides for controls (essentially prior authorisation) over direct and indirect discharges to groundwater of List I (toxic, persistent and bioaccumulative) substances and List II (lower risk) substances. List I substances are to be prevented from entry to groundwater (subject to certain exemptions), while discharges of List II substances may be authorised subject to prior investigation and technical precautions to ensure that pollution does not occur. These requirements apply to discharges to groundwater or to depositions which could reach groundwater. For example, waste disposal sites, or the disposal of spent sheep dip (which contains List I substances) to land, require authorisation by SEPA. In Scotland the requirements of the 1980 Directive are now met by the Controlled Activities Regulations ( CAR), discussed below.

WFD and groundwater

28. The WFD requires Member States to "protect, enhance and restore all bodies of groundwater" and to "prevent or limit the input of pollutants into groundwater and to prevent the deterioration of the status of all bodies of groundwater" (Article 4(b)).

29. The WFD also required the European Commission to submit proposals for specific measures to prevent and control pollution with the aim of achieving the objective of good chemical status of groundwater. The adoption of the Groundwater Directive 2006 fulfils this requirement. In particular, Article 6 of the Groundwater Directive 2006 clarifies the "prevent or limit" objectives of the WFD by requiring Member States to prevent or limit the input of pollutants (hazardous substances and non-hazardous substances) into groundwater.

30. The Groundwater Directive 2006 will replace the 1980 Groundwater Directive in 2013. However, to ensure that all the procedures and requirements are in place for a smooth transition, the 1980 Groundwater Directive and the Groundwater Directive 2006 will run concurrently until 2013 when the former is repealed.

Purpose and scope of the Groundwater Directive 2006

31. The Groundwater Directive 2006 underpins the WFD (as explained in paragraph 29 above). It provides specific measures to prevent or limit pollution with the aim of achieving the objective of the good chemical status of groundwater, including:

(a) criteria (called 'threshold values') and procedures for assessing the chemical status of groundwater (Articles 3 and 4);

(b) criteria for the identification of significant and sustained upward trends in concentrations of pollutants in groundwater, and the definition of the starting point for trend reversal (Article 5); and

(c) measures to prevent or limit inputs of specific pollutants into groundwater (Article 6).

32. The main difference between the 1980 Groundwater Directive and the Groundwater Directive 2006 is that the latter includes measures concerning non-listed substances. Substances that may give rise to pollution are already subject to CAR under the WEWS Act, and amendment to the legislation will therefore not be required. Nevertheless, the new Directive may necessitate modification to a small number of authorisations made under existing regulatory regimes to take into account the requirements to prevent or limit inputs of pollutants into groundwater. The Scottish Environment Protection Agency ( SEPA) is reviewing its authorisations as part of a rolling programme in the management and transition of WFD. This review will therefore take into account any necessary modifications to existing authorisations. New authorisations will need to meet the requirements of the Groundwater Directive 2006. The two types of provision, criteria (Articles 3-5) and measures (Article 6), are considered separately below.

Assessing chemical status and actions concerning upward trends - Articles 3-5

33. The provisions in Articles 3-5 relate to the process of classification of groundwater bodies, as required under the WFD. They set out the criteria for assessing the chemical status of groundwater bodies and for the identification of significant and sustained upward pollution trends which may arise as a result of human activity. They are necessary as part of the process to meet the aim of achieving good chemical status in every body of groundwater by 2015.

34. The Groundwater Directive 2006 requires Member States to establish threshold values for pollutants, groups of pollutants or indicators of pollution in order to inform the identification of bodies of groundwater as being at risk of failing to achieve good chemical status. The Scottish Ministers issued Directions to SEPA on standards, trends and trend reversal in December 2005, and SEPA has now developed the threshold values, as required. The Scottish Government's recent consultation, for WFD implementation generally, - ' Development of environmental standards and conditions limits' - included proposals for threshold values for groundwater. These will be incorporated in the proposed WFD Directions to SEPA.

35. The groundwater threshold values and standards will be used by SEPA:

• to assess the chemical status of groundwater,
• to contribute to SEPA's characterisation of groundwater bodies at risk, and
• to identify the starting point for trend reversal of significantly polluted groundwater.

A failure of a threshold value will be used as a trigger for investigations aimed at determining whether the conditions for good groundwater chemical status are met.

36. SEPA in November 2008 issued for consultation a Position Statement on 'Assigning Groundwater Assessment Criteria for Pollutant Inputs'. This describes how SEPA will control inputs to groundwater such that they meet the prevent and limit requirements of the Groundwater Directive 2006. Exercise of this control will also ensure that inputs will not give rise to deterioration in status or significant and sustained upward trends, thus helping to achieve other WFD objectives. The Position Statement may be found at: http://www.sepa.org.uk/about_us/consultations.aspx

(under 'closed consultations').

Measures to prevent and limit inputs of pollutants into groundwater - Article 6

37. The Groundwater Directive 2006 deals with prevention of pollution in all groundwater. It provides that inputs of hazardous substances should be prevented and that inputs of non-hazardous pollutants should be limited so that they do not cause pollution to groundwaters. The prohibition of all direct discharges of pollutants was established in the WFD; under the Groundwater Directive 2006 Member States are empowered to determine the circumstances under which the substances listed in the WFD are considered to be hazardous substances. However, it requires that the programmes of measures established under the WFD must:

• include measures to prevent inputs into groundwater of any hazardous substances;
• include measures to limit inputs of non-hazardous pollutants to ensure that they do not cause deterioration or significant and upward trends in the concentrations of pollutants in groundwater; and
• take into account inputs of pollutants from diffuse sources of pollution having an impact on the groundwater chemical status wherever technically possible.

38. The prevent and limit provisions in the Groundwater Directive 2006 include a list of activities that are exempt from the above requirements. These exemptions are, in part, carried over from the 1980 Groundwater Directive and incorporate others from the WFD. The Groundwater Directive 2006 clarifies that an exemption must not compromise the achievement of the environmental objectives established for that body of groundwater and requires that appropriate and effective monitoring is in place. It also requires that an inventory of these exemptions is kept and notified to the European Commission. This will be done by SEPA as the competent authority.

39. The key actions required under the 2006 Groundwater Directive are closely linked to achievement of the WFD groundwater quality objectives. As well as the introduction of standards and thresholds, they involve the development of programmes of measures. The programmes of measures need to be guided by the 'prevent or limit' requirements of the Directives. We therefore propose to transpose the prevent or limit provisions of the Groundwater Directive 2006 by way of amendments to both the WEWS Act and the Controlled Activities Regulations ( CAR). A short explanation of the changes (regulations at Annex A) is given below.

Proposed amendments to WFD legislation concerning the protection of groundwater

Amendments to the Water Environment and Water Services (Scotland) Act 2003 ( WEWS)

40. We propose to amend section 2 of the WEWS Act to require that the Scottish Ministers, SEPA, and the other responsible authorities ³ exercise their functions under the relevant enactments so as to secure compliance with the Groundwater Directive 2006, as well as the WFD.

Amendments to the Water Environment (Controlled Activities) (Scotland) Regulations 2005 ( CAR)

41. We also propose to amend CAR to reflect the additional provisions of the Groundwater Directive 2006. The main changes are summarised below:

Regulation 2 - Interpretation

• the proposed amendment will clarify and distinguish between the references to the Groundwater Directive 2006 and the 1980 Groundwater Directive in CAR;
• we propose to add a new definition of 'hazardous substances' (as meaning those substances identified in accordance with the replaced Schedule 2).

Regulation 4 - Application of the Regulations

• the proposed amendment will confirm that CAR applies to the new definition of hazardous substances.

Regulation 10 - Groundwater Directive

• a transitional provision is needed for the period until 22 December 2013 when the 1980 Groundwater Directive is to be repealed. The provision will therefore empower SEPA, when considering the conditions required for controlled activity applications during the period up to 22 December 2013, to take account of the 1980 Groundwater Directive in conjunction with the Groundwater Directive 2006. After 22 December 2013, it is intended that regulation 10 be revoked; the amendment to section 2 of the WEWS Act will suffice from then to require SEPA to take account of the Groundwater Directive 2006 when considering the conditions required for controlled activity applications.

Regulation 28 - Enforcement notices

• regulation 28(1)(b)(iii) will be amended to reflect the new definition of hazardous substances. (In consequence, where SEPA issues an enforcement notice, the reason for doing so will include circumstances where hazardous substances are being, or are likely to be, discharged into groundwater.)

Schedule 2

The existing Schedule 2 needs to be amended to set out how SEPA should identify the 'hazardous substances' referred to in the Groundwater Directive 2006.

Part 1 and Part 2 of Schedule 4

Part 1 of Schedule 4 lists the Directives that SEPA must apply the requirements of in determining controlled activity applications. We propose to amend this so that the list includes the Groundwater Directive 2006 as well as the 1980 Groundwater Directive.

Part 2 of the Schedule lists the sets of Regulations that SEPA must have regard to in determining controlled activity applications. We propose to amend the list to reflect recent changes in the relevant Statutory Instruments.

Other considerations

Non-hazardous pollutants, diffuse pollution, and isolated dwellings

42. The requirement to limit inputs of non-hazardous pollutants into groundwater is already met in CAR. Specifically, it is caught by Regulation 4(1)(a) and Regulation 28(b)(i) of CAR. These provisions apply to activities liable to cause pollution of the water environment.

43. The Groundwater Directive 2006 requires that inputs of pollutants from diffuse sources that have an impact on the chemical status of groundwater need to be taken into account whenever technically possible. We consider that the powers in CAR are sufficient to meet this requirement. CAR includes the additions made by the Water Environment (Diffuse Pollution) (Scotland) Regulations 2008.

44. Domestic effluent from isolated dwellings is excluded from the scope of the 1980 Groundwater Directive, but provided that septic tanks are constructed and managed appropriately any inputs from them to groundwater can be expected to comply with the requirements of the Groundwater Directive 2006. However, no amendment needs to be made to the Scottish legislation because the powers given to SEPA in CAR (to control activities liable to cause pollution of the water environment) are sufficient to address any pollution to groundwater originating from septic tanks.

Contaminated land

45. As indicated in paragraph 18 above, we propose to make an amendment to section 2(2) of the WEWS Act. This will in effect oblige Local Authorities to take account of the Groundwater Directive 2006 in their responsibilities for contaminated land. European Commission guidance recognises that absolute prevention is sometimes impossible to achieve - the Directive provides for exemption where the competent authorities consider that technical feasibility and disproportionate cost may need to be taken into account. On this basis the contaminated land regime in Scotland is consistent with the Groundwater Directive 2006.

Radioactive substances, the Pollution Prevention and Control permits, and Waste Management licences

46. Radioactive substances are pollutants in terms of WFD and the Groundwater Directive 2006. CAR currently provides that authorisation under the Radioactive Substances Act 1993 ( RSA), permits under the Pollution Prevention and Control (Scotland) Regulations 2000, and waste management licences under the Waste Management Licensing Regulations 1994 constitute authorisation under CAR. This is on the basis that assessment under these rules involves a proper assessment of the possible impact on the water environment, including groundwater.

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