Regulatory regimes
Joyce Carr, WFD Team Leader, Water
Environment Unit, Scottish Executive
Background
Section 20 of the Water Environment and Water
Services ( Scotland ) Act 2003 gives Scottish Ministers powers to
make regulations to control activities for the purposes
of protecting the water environment.
To this end earlier this year the Scottish
Executive established a number of working groups,
comprising the Scottish Executive, SEPA, Scottish Water
and Scottish Natural Heritage, to draw up proposals for
key regulations on the following activities:
· Abstraction and impoundments Abstraction and impoundments
· Point source pollution Point source pollution
· Engineering and building works in, and in the
vicinity of, the water environment Engineering and building works in, and in the
vicinity of, the water environment
Draft Regulations
These draft Regulations will form the focus of
discussions on day 2 of the event. The presentations
have been tailored to focus on specific regimes but
there will also be an opportunity for general
discussion during the panel session.
It should be noted that these are still early
drafts. Other provisions have still to be included in
respect of issues such as priority substances and
groundwater regulations. There are also a number of
details which are still under consideration; some are
identified by square brackets in this draft.
We have included some examples of general binding
rules - others will need to be developed. This will be
a topic for discussion during the sessions on the
individual regimes.
Principles
The underlying principle is that no controlled
activity should take place without prior authorisation.
T he proposed regulatory controls are designed to
be selective, proportionate and streamlined, and to be
applied only where there is a risk to the water
environment.
Framework
The draft Regulations introduce a single cohesive
framework which lays the foundations for the new
regimes. This framework is based on 3 tiers of control
-
· registration, registration,
· registration under general binding rules,
and registration under general binding rules,
and
· water use licences. water use licences.
For low risk activities it is envisaged that only
a simple form of registration will be required. Such a
process will provide SEPA with a full picture of all
activities affecting the water environment and will
enable them to judge the impact of the cumulative
effect of those activities.
The intention is that general binding rules will
apply where environmental impacts are predictable and
mitigation measures can be prescribed in a common form.
These will generally be SSIs and we currently envisage
producing a range of GBRs to support each
regime.
Water use licences remain the most comprehensive method of control.
These will be tailored to the particular circumstances of
the activity concerned.
It is proposed that there will be sufficient
information available to operators to enable them to
decide which is the appropriate level of authorisation,
and to apply accordingly. SEPA will also carry out a
risk assessment before deciding to grant or refuse
authorisation, and may require a higher level of
authorisation to be applied for.
To minimise the regulatory burden on water-users
and regulators, it is proposed that authorisations
should be activity-specific. However for the higher
levels of authorisation it has also been necessary to
introduce the concept of a 'responsible person' to
ensure enforcement action can be taken where
appropriate.
Timing
We propose to introduce the new regimes from April
2005 onwards. This will enable SEPA to begin the process of
licensing activities under the new regimes. SEPA will also
begin to identify the requirements organisations will be
obliged to meet by 2012; thus giving those
organisations sufficient time in which to make the
necessary investments in order to meet
those requirements. This timetable also
supports the investment planning process that Scottish
Water is currently under-going.
Although the current wording of the Regulations
suggest that all pollution is covered we propose to
find a mechanism to exclude diffuse pollution until
this subject has been given full consideration next
year.
Appeals process
The new control regimes will have a significant
impact on individuals and businesses, and we need to
introduce a robust appeals process to ensure there are
effective checks and balances. The draft
Regulations outline proposals for such a process.
In the longer term the Executive will be
considering ways in which the WEWS requirements can be
integrated with land use planning. However in the
interim it is necessary to introduce an appeals process
specific to these Regulations. We would welcome your
thoughts on who should control the appeals
process.
Currently appeals in relation to environmental
controls are to Scottish Ministers. One option
might be to retain handling of appeals within the
Executive. Another option might be to transfer jurisdiction
to an external body such as the
Land Court .
Issue for discussion:
Should the appeals process in respect of these
Regulations be handled by Scottish Ministers or by an
external body such as the Land Court ?
Points for consideration:
· retain a key role for Scottish Ministers versus
possible doubts over ECHR-compliance retain a key role for Scottish Ministers versus
possible doubts over ECHR-compliance
· considerable experience of existing environmental
appeals versus considerable experience of land
issues considerable experience of existing environmental
appeals versus considerable experience of land
issues
· resource implications resource implications
· flexibility for an interim period flexibility for an interim period