The Scottish Government

Responsible Authorities - Summary of Responses to Discussion Paper

IMPLEMENTING THE WATER ENVIRONMENT AND WATER SERVICES ( SCOTLAND ) ACT 2003: RESPONSIBLE AUTHORITIES: SUMMARY OF RESPONSES to DISCUSSION PAPER

BODIES FOR DESIGNATION

The Scottish Executive issued a discussion paper regarding the designation of responsible authorities under the Water Environment and Water Services (Scotland) Act 2003 (WEWS or the Act) in July 2005. The paper was the final stage of a consultative process to determine which bodies, and which of their functions, should be designated under the Act. The paper was issued to those public bodies who had been or still were being considered for designation as a responsible authority, as well as being made available on our website.

The key purpose of designation is threeefold:

• To ensure that public bodies have the aims of the WFD in mind when carrying out their normal statutory functions
• To ensure that public bodies work collaboratively from the earliest stages of planning developments or activities which will have an impact on Scotland's water environment
• To ensure those bodies have a clear role in developing and implementing Scottish River Basin Management Plans.

The majority of comments received were positive. Respondents welcomed the opportunity to engage in the implementation process. It was felt that the main requirements of the proposed authorities, including having regard to socio-economic impacts and promoting flood management and sustainable development, were already being followed by public bodies.

The bodies proposed for designation in the discussion paper responded positively to the intention to designate them, and the Executive will proceed on the basis. We aim to lay the designation order for the bodies below in early 2006. A full policy statement and Regulatory Impact Assessment will accompany the designation order.

It is important to note that this list is not exhaustive. It presents the bodies the Executive will designate initially. Further bodies will be considered for future designation.

OTHER COMMENTS

In addition to the general approval of the approach taken by the Executive, a number of further comments were received. These centred on four main themes:

• further bodies for consideration,
• further functions to be designated,
• cost implications for designated authorities, and
• the role of responsible authorities, particularly in relation to river basin planning.

These topics are covered in more detail below.

1. FURTHER BODIES FOR CONSIDERATION

The Executive has considered a variety of bodies for designation as responsible authorities, and explored the arguments for and against in consultation with stakeholders. This process resulted in the selection of the bodies outlined above for designation at this time. A number of additional bodies were suggested for designation in the responses to the discussion paper. These were:

Scottish Enterprise and Highlands and Islands Enterprise

Scottish Executive Departments

Marine and Coastal Agency

The Coal Authority

Network Rail

Scottish Agricultural College

Water Customer Consultation Panels

Several respondents also requested that Executive reconsider its position not to designate the Water Industry Commission and The Fisheries Research Service.

The Executive will give detailed consideration to these proposals to determine whether designation is viable and appropriate. These considerations will be based on three main criteria:

• whether the body has statutory functions appropriate for designation
• whether the legal entity of the body precludes the possibility of designation
• whether there are more appropriate mechanisms for ensuring compliance with the Water Framework Directive and the WEWS Act

We do not consider that designation is appropriate for bodies with primarily advisory functions such as the Scottish Agricultural College and Scottish Water Customer Consultation Panels.

The Executive will set out its thinking on these matters in the policy paper to be laid with the designation order.

Designation is a rolling process. We aim to have all the main enactments and all the main Scottish authorities designated initially, but it is expected that the designation process will be utilised to include further functions or additional bodies at a later date.

In addition to Scottish public bodies, it may be necessary to designate certain cross-border public bodies whose functions are given by reserved legislative Acts, to ensure UK-wide compliance with the WFD. This will be further considered in the next round of designations.

2. ADDITIONAL FUNCTIONS FOR PROPOSED AUTHORITIES

Respondents suggested further functions which should be designated, in particular for the local authorities. Suggested functions were in relation to housing, drainage, estate management and especially roads. The Executive will be giving these suggestions further detailed consideration. In addition, the Executive will review the proposal to designate of local authorities in respect of functions under the Reservoirs Act 1975 as it has been noted that the duty is not on the local authority to inspect reservoirs, but to ensure that this is done. This may make it inappropriate for designation.

Several respondents mentioned that the Nature Conservation (Scotland) Act 2004 places the duty to preserve bio-diversity on all public bodies, not just Scottish Natural Heritage. Conservation (Natural Habitats & c.) Regulations 1994 apply to the Forestry Commission, Scottish Water and the District Salmon Fishery Boards in addition to Scottish Natural Heritage. We will consider amending the schedules for designation accordingly.

One respondent requested a clear definition of the term sustainable development. The Scottish Executive has adopted the UK's shared framework definition from "One future - different paths", launched in Scotland by the First Minister in March 2005. This has five guiding principles including living within environmental limits and using sound science responsibly [1]. In addition the Scottish Sustainable Development Strategy is expected to be published in early 2006, giving designated authorities further guidance on both the definition and the practicalities of promoting and achieving this aim.

3. COSTS IMPLICATIONS FOR DESIGNATED AUTHORITIES

Respondents were asked to identify any costs they anticipated incurring as a result of designation. Although no actual costs were forthcoming, a number of areas of possible cost were raised, such as the recurring costs of training staff in WFD awareness; as well as issues relating to data collection, storage, manipulation and sharing.

The Executive will publish a full Regulatory Impact Assessment alongside the designation order and our policy statement.

4. THE ROLE OF RESPONSIBLE AUTHORITIES

Respondents were keen to have further information on the practical implications of being designated as a responsible authority, particularly where cooperative working was concerned. A number of respondents also requested clarification of the role of responsible authorities in relation to the river basin management planning process. Many respondents encouraged the use of practical examples as in the discussion paper and we will develop this further in our policy paper.

A number of respondents saw parallels between the Strategic Environment Assessment system and their proposed role as responsible authorities and questioned whether the two could be stream-lined. Being designated as a responsible authority would not remove the duty to carry out the strategic assessment, but the assessment would take into account the WFD principles and objectives.

In addition to consulting SEPA, further key actions for responsible authorities were suggested. These included specific actions like surface water management through sustainable urban drainage plans. Comments were also made on aligning the work of Flooding Issues Advisory Committee and their determination of other authorities who should be involved in flood management with the designation of responsible authorities under WEWS to avoid confusion and duplication of effort.

These issues will be explored further in the Executive's policy statement.

[1]http://www.sustainable-development.gov.uk/publications/uk-strategy/framework-for-sd.htm.