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Controlled Activities Regulations

INTRODUCTION

The aim of the WEWS Act is to protect and improve the ecological status of the water environment. However it is equally important to protect the social and economic interests of those who depend on our water environment. In order to achieve this balance we believe it is necessary to introduce a new system of simple and flexible controls based on an assessment of risk posed to the water environment. Such controls must be selective, proportionate, and streamlined. These controls will be a key tool in the achievement of environmental objectives set out through the river basin planning process.

Our previous consultation papers, "Rivers, Lochs, Coasts: The Future for Scotland’s Waters" and "The Future for Scotland’s Waters – Proposals for Legislation" sought feedback on proposals for new control regimes. The majority of respondents were in support of the proposals in both consultation papers, and since the passing of the WEWS Act we have been drawing up proposals for regulation. The background to the proposals for each regime is set out below.

The timetable for implementation of the Water Framework Directive requirements is relatively lengthy. Control regimes must be in place by December 2009 and operational by December 2012. However, as we discussed in our earlier consultation papers, and as stakeholders have indicated, it is preferable for both business and regulators to phase the changes in over a longer time period, thus allowing everyone sufficient time to plan to meet the conditions required by 2012.

1. Point source discharges

Controls are currently in place to regulate water pollution from identifiable sources such as discharges from the end of a pipe; and these controls have already brought about improvements in the quality of Scotland’s water environment.

Current controls and legislation

The regulatory regime in place under the Control of Pollution Act 1974 (CoPA) is the main legislative vehicle for point source pollution control and provides a system whereby discharges of pollutants are subject to consent by SEPA, who may impose any reasonable conditions before granting consent to the discharge. Sitting alongside CoPA are the Groundwater Regulations 1998 which provide a system of control over direct and indirect discharges of specified substances to groundwater.

These systems are broadly effective but do not fully meet the requirements of the Water Framework Directive (WFD).

2. Abstractions and impoundments

There are presently an estimated forty to fifty thousand abstractions and between five and ten thousand impoundments in Scotland. The majority of these abstractions are small private water supplies but substantial volumes are abstracted for public drinking water supply, hydro-electricity generation and a range of industries such as whisky distillers, aquaculture, agriculture and opencast mining.

Abstractions

The main environmental impacts to a river, loch or estuary that can be caused by abstraction come from changes to water level or depth, flow velocity and water quality. Different water bodies will be sensitive to changes in some or all of these factors to varying degrees and at different times of year. This sensitivity varies with the characteristics of the water body and the ecology that they support. For example, the marginal vegetation around the shoreline of a loch and gravel beds used by spawning salmon are susceptible to changes in water level.

Impoundments

The effects of an impoundment will be variable, depending on the size, design and operation of the impoundment and the sensitivity of the location. They have impacts both upstream and downstream, interfering with the normal pattern of flow of water and the movement of sediment. They may also be a barrier for migrating fish and other species.

Current Controls and Legislation

Most existing abstractions are not controlled by any legislation. The position under common law is as follows:

• where groundwater is percolating, the owner of the land in which the borehole is situated has rights to take water and use it as they wish;
• where groundwater is part of an underground stream, the owner of the land does not have exclusive property rights to water lying under their land, but can abstract as much as they wish so long as they do not affect another land owner’s rights;
• for surface water, a bank owner is entitled to make use of water in a watercourse flowing through his land provided it is returned unpolluted and in the same quantity at or above the point where the watercourse leaves his land, except where the water is consumed for primary purposes such as domestic and certain agricultural purposes.

These conditions can result in water resources being over-abstracted.

There are a number of pieces of legislation that cover abstractions and impoundments in specific sectors:

• the Natural Heritage (Scotland) Act 1991 and the Environmental Impact Assessment (Water Management) (Scotland) Regulations 2003 for irrigation;
• the Water (Scotland) Act 1980 for public water supply;
• the Electricity (Scotland) Act 1989 for hydro-electric power; and
• the Salmon (Fish Passes and Screens) (Scotland) Regulations 1994 for fisheries management.

Taken together, the current measures for controlling abstraction and impoundment do not fully meet the requirements of the WFD.

3. Building and engineering works

The natural heritage of Scotland plays an important role in the national economy. The many river-based activities that support local tourist and industrial activities would not be productive without good quality river habitat. Yet, data from the River Habitat Survey reveals that 28% of sites visited in Scotland showed the adverse effects of pressures from engineering and building works affecting the physical character of watercourses.

River engineering works vary significantly in scale and type, but the degree of impact may be more directly related to frequency of activities and the sensitivity of the river system. Examples of such works include flood prevention works, bank protection, bridge building, culverting, river diversions, ditch maintenance and fisheries management works. All have the potential to cause a deterioration in ecological status.

Current Controls and Legislation

The Town and Country Planning and environmental impact assessment regimes are prime examples of existing legislative controls over river engineering works. Other legislation, such as the Conservation (Natural Habitats &c.) Regulations 1994 and the Environment Act 1995, provide protection to designated conservation sites and protected species from the impacts of such works.

The Flood Prevention (Scotland) Act 1961 and the Coast Protection Act 1949 empower local authorities to build flood or sea defences to protect land within their area. Structures on the sea bed may be licensed under the Food and Environment Protection Act 1985.

However, current legislation does not sufficiently meet the requirements of the WFD.

4. Future considerations

• Diffuse pollution

While point source pollution can be readily identified, diffuse pollution is more difficult to define and indeed to address. Agricultural activities can result in the contamination of watercourses by soils, fertilisers and livestock manures. Soil and potential soil nutrients are not generally thought of  as pollutants, but when they run off into watercourses they can have serious effects on wild life and thus on biodiversity.  In urban areas rainwater runoff contaminated with oils and other toxic substances from roads, industrial estates and car parks can have a serious impact on the water environment.

There is no single piece of legislation that deals comprehensively with diffuse pollution, but there are a number of domestic and European provisions that deal with particular aspects, including the Nitrates Directive and the Control of Pollution (Silage, Slurry and Agricultural Fuel Oil) (Scotland) Regulations 2003. There are also a number of good practice initiatives currently in hand to reduce pollution from diffuse sources, both urban and rural.

However it is clear that such measures do not fully satisfy the requirements of the WFD.

Because of the complexities of regulating diffuse pollution we propose to develop a separate proportionate system prior to October 2005, which will enable compliance with the policy intentions to be achieved. This regime will include new policy measures as well as incorporating existing provisions within its scope. These provisions will be developed in partnership with SEPA and other key stakeholders during the coming year.

Meanwhile we have made provision in these Regulations so that those bound by, and complying with, certain existing legislation to control diffuse pollution, will be deemed to comply with these Regulations.

• Remedial and restoration works

In addition to the proposed control regimes identified above, consideration will need to be given to the development of regulations setting out provisions for SEPA or other authorities to carry out remedial and restoration works, for the purposes of remedying any detrimental effects to the water environment. Section 22 of the WEWS Act gives Scottish Ministers the powers to introduce such regulations, and it is proposed that these will also be developed in partnership with SEPA and other key stakeholders during the coming year.

• Proposed extension of building and engineering controls to coastal waters

The regulations set out in this document will require SEPA to regulate building, engineering and other works in or in the vicinity of inland surface water and wetlands. It is our intention in due course to bring into force separate measures to regulate building and engineering works in coastal waters out to 3 nautical miles, to meet the requirements of both WFD and the WEWS Act, and it is envisaged that the Fisheries Research Service (an executive agency of the Scottish Ministers) will be the regulatory authority for this purpose.

• Priority and priority hazardous substances

Our aim is to minimise pollution of surface waters by priority substances, and stricter requirements are to be applied to priority hazardous substances. The WEWS Act contains powers for the Scottish Ministers to establish measures to tackle pollution from priority substances, action programmes for protected areas and their catchments, and specific measures to deal with priority substances, including product and process controls and Environmental Quality Standards (EQSs). 

The European Commission has produced a list identifying both priority and priority hazardous substances. These are reflected in Schedule 3 of the Regulations. However, the lists are not yet finalised, and we may need to revise the list in Schedule 3 in due course.  Meanwhile we propose that priority substances will be controlled with the same tools as other pollutants and will be subject to similar processes as outlined in these Regulations. While these Regulations do not include any additional measures for the control of priority substances, we envisage that this will flow from the setting of more stringent licence conditions and the use of enforcement powers, if necessary.

• Canals

We envisage that abstractions from canal systems will be regulated by SEPA. There are a number of procedural matters still to resolve and in the coming months we will be working with SEPA and British Waterways to develop appropriate solutions. It is recognised that separate controls for engineering works in canals are required and this will also require discussion with British Waterways.

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