New regulations - the Water Environment (Controlled Activities) (Scotland) Regulations 2005 (also known as the "Controlled Activities Regulations" or "CAR") - came into force on 1 April 2006, establishing a new regime for the control of works affecting Scotland’s water environment, which includes wetlands, rivers, lochs, transitional waters (estuaries), coastal waters and groundwater.
Arising out of the EU Water Framework Directive, which became law in Scotland at the end of 2003, through the Water Environment and Water Services (Scotland) Act 2003, the aim is to have a co-ordinated approach throughout Europe for safeguarding and enhancing the water environment, and reduction of both pollution and the effects of drought and flooding.
Replacing the pollution control regime under the Control of Pollution Act 1974 (CoPA), the Regulations make it an offence to undertake a number of "controlled activities" without first obtaining authorisation from the Scottish Environment Protection Agency (SEPA), as the authority responsible for delivering the objectives of the Directive in Scotland, including implementing CAR. Controlled activities include:
- Abstractions (removal or diversion of water from the natural environment by mechanical means) from all wetlands, rivers, lochs, canals, transitional waters, coastal waters and groundwaters;
- Impoundments (works diverting surface waters in connection with the construction or alteration of any dam, weir or other works by which surface water may be impounded) of rivers, lochs, wetlands and transitional waters;
- Disposals to land; or
- Engineering works in rivers, lochs, canals and wetlands.
The effect of CAR will vary depending on the type of water body and the ecology supported by it. Agricultural operations, particularly in relation to water abstraction could potentially be affected. Hundreds of bodies of water, including lochs and rivers, in Scotland are affected by abstraction and flow regulation pressures. SEPA intends to carry out an exercise of monitoring and analysing water abstractions and their impact on the water environment, and once that exercise has been completed, SEPA will be in a position to identify whether action needs to be taken to use these resources to better effect. Such action may involve local water management agreements.
Residential properties, particularly in rural areas could be affected. Septic tanks are "controlled activities" under CAR and require authorisation. As with all controlled activities, if there is an existing consent under the Control of Pollution Act regime, a Pollution Prevention and Control permit, or a Waste Management Licence, then this is transferred automatically to the new regime and a septic tank with an existing CoPA consent will be deemed to be registered, or SEPA will have made contact to arrange for transfer where charges were made under the charging scheme for CoPA. Any unauthorised discharges from current septic tanks and new septic tanks which serve 15 people or less require registration. Some septic tanks which did not need consent under CoPA, now need consent under the new regime, so this is something else that a purchaser will need to check for, and if not yet applied for, obtain, or require the seller to obtain, when affected properties are changing hands. Although it seems that one aspect of the registration regime is as much about building up and maintaining accurate records, it remains an offence to carry out unauthorised controlled activity.
Only works in the vicinity of inland surface waters that have a direct and significant adverse impact, and which cannot be controlled through other means will be regulated by CAR. Building and development, or land management practices, in the vicinity of inland surface waters will not normally require authorisation.
The form of authorisation depends on the degree of risk associated with the activity. For certain low-risk activities, compliance with a set of General Binding Rules is sufficient to secure authorisation. The operator is not required to contact SEPA and will not incur any authorisation charges.
Those involved in certain low-risk activities which individually, pose a small environmental risk but, cumulatively, can result in environmental harm, must apply to SEPA to register these activities.
A Water Use Licence has to be obtained from SEPA if site-specific controls are required and in particular, if constraints on the activity are to be imposed. Licences require the applicant to identify an individual or organisation as a "responsible person" who should ensure compliance with the conditions of the licence.
Registration and licence applications for previously unregulated activities now requiring authorisation should have been submitted. CAR incorporates a "polluter pays" principle to ensure operators bear the costs of SEPA's involvement, in addition to the costs of compliance. Accordingly, there are application fees, and licence applicants may be subject to subsistence charges.
SEPA has a duty to monitor compliance and enforce the provisions of the Regulations. Where any activity contravenes an authorisation or causes significant adverse impact on the water environment, SEPA may issue an enforcement notice requiring the responsible person to take steps in order to prevent, mitigate or remedy the effect of the activity. Failure to comply with the conditions of an authorisation, or the undertaking of an unauthorised controlled activity may result in liability for a fine, imprisonment, or, where SEPA considers it more appropriate, a civil court order requiring compliance.
The full text of the Water Environment (Controlled Activities) (Scotland) Regulations 2005 is available from the OPSI website at http://www.opsi.gov.uk/legislation/scotland/ssi2005/20050348.htm
SEPA has produced The Water Environment (Controlled Activities) (Scotland) Regulations 2005 – A Practical Guide, which provides information about which authorisation is appropriate for different activities.
SEPA has also produced guidance on the charging scheme, which is available from their website at http://www.sepa.org.uk/wfd/regimes/charging.htm.