Scotland has taken an independent approach to implementing the water framework Directive through primary legislation. The Water Environment and Water Services (Scotland) Act 2003 paved the way for controls on a wide range of activities with the potential to damage the water environment.
The regulations are the key tools under the Act covering so called "controlled activities" affecting surface and groundwaters. They were put out for consultation by the Scottish Executive in April 2004, but the original proposals to establish three tiers of regulation covering some 125,000 activities were found too prescriptive and inflexible and have been considerably slimmed down.
The final regulations follow the revised proposals issued by the Executive in December 2004 and March this year (ENDS Reports 359, p 54 and 362, p 52 ). They are accompanied by an explanatory policy statement and regulatory impact assessment.2The documents make the shape of Scotland's new regulatory regime clear:
The lowest tier of regulation, known as "general binding rules" (GBRs), includes only 11 classes of activities including abstractions of less than 10 cubic metres per day, dredging, the discharge of low-risk surface water and the construction of small or monitoring boreholes. These activities are deemed to be authorised provided that they are conducted according to GBRs given in a schedule to the regulations. There is no need for operators of such processes to register with the Scottish Environment Protection Agency as originally proposed.
Other controlled activities will be authorised by SEPA either as simple "registrations" - the middle tier which require a minimum of information - or as top-tier "water use licences". The regulator may attach conditions to both kinds of authorisation.
Licences will only be issued where a "responsible person" has been identified who will take responsibility for compliance with any conditions, and the information requirements may be substantial, depending on the circumstances. Scots law allows companies to be nominated as a 'legal person', but does not permit clubs, associations or other non-incorporated bodies.
The policy statement explains that SEPA will retain flexibility in deciding whether activities should be covered by registrations or licences. In general, registrations will cover all low-risk activities not covered by GBRs - including a large majority of the licences issued under the Control of Pollution Act 1974. SEPA expects that 80% of the existing 100,000 licences will become registrations.
Guidelines that do exist for registrations include abstractions of more than 10m3 but less than 50m3 per day, septic tanks or sewage treatment schemes serving less than 15 people and cooling water discharges, provided that the only water quality issue is temperature.
SEPA expects that there will be about 15,000 licences, reserved for significant sewage or industrial discharges, large abstractions and large impoundments. Even so, a significant number of licences will be simple authorisations with standard conditions. Details of all authorisations - whether registrations or licences - will be included on a public register kept by SEPA.
Although SEPA will have the power to set time-limits on authorisations, they will be the exception rather than the norm. This contrasts with England and Wales where all abstraction licences are to become time-limited.
SEPA will be able to review authorisations at any time - another contrast with practice south of the border where reviews are limited to once in any four-years.
Carrying out controlled activities without an authorisation, in breach of an authorisation or failure to comply with GBRs will be an offence. Offences carry a penalty of up to £40,000 or imprisonment for up to six months on summary conviction. Daily fines of up to £250 per day are also available for persistent offenders.
For conviction on indictment, there is no maximum fine and prison sentences may be up to five years. The maximum daily fine increases to £1,000.
SEPA says that there will be no change in discharge conditions on the transfer to licences.
Holders of consents that do not attract fees do not have to apply and the intention is to effect an automatic transfer to registrations. SEPA intends to review these discharges over the next four years to identify which should be covered by licences.
All abstractors of more than 10m3 of water per day are required to apply to SEPA for authorisation under the regulations after 1 October this year. Those responsible for impoundments should also apply unless the impoundment is less than one metre high and does not affect fish passage.
The intention is to repeal the 1998 groundwater regulations and all operators with licences will be transferred to authorisations under the new regulations.
Controls on oil stores were removed from GBRs during the consultation exercise and the Scottish Executive now plans to develop free standing oil storage regulations.