Environmental Authorisations (Scotland) Regulations 2018 - proposed amendments: consultation analysis

5. Water – Technical Provisions

We proposed two new General Binding Rules (GBRs) for water activities:

GBR 35 – The discharge of hot tub effluent, from a site with only one hot tub, to groundwater.

GBR 7- The installation and removal of temporary crossings and temporary structures.

We also proposed minor changes to a number of GBRs. This included widening the scope of GBR 6 to include what was previously GBR 7 in a single simpler GBR, adding a rule to GBR 23 to allow the application of pesticide to skunk cabbage and requiring notification of construction of a constructed farm wetland (GBRs 30 and 33). In addition, we proposed some minor changes to the technical requirements for water activities.

Questions 16 and 17 sought comments on the new General Binding Rules (nos. 7 and 35) for water activities in Schedule 9 and the water activities in Schedule 10 in the draft Regulations, and comments on the minor amendments relevant to water activities as set out in Annex D.

5.1.1 Summary of responses

15 respondees provided 23 comments in relation to questions 16 and 17. The vast majority of respondees supported the introduction of the new GBR 7 and GBR 35 and agreed with our other proposals.

We received a few responses suggesting improvements to the current GBRs, or seeking to engage on developing GBRs for specific sectors. Other respondees sought clarity concerning the application of the new GBRs, in a similar manner to the current water GBRs (i.e. applying to emergency works).

Respondees also raised concerns about having to re-apply for an EASR authorisation where they currently hold a valid Controlled Activities Regulation (CAR) authorisation. Other concerns related to the application of GBRs where the activity may already be authorised by the waste or Pollution Prevention and Control (PPC) regimes.

A number of respondees noted the changes to phrases used in the Water Environment (Controlled Activity) (Scotland) Regulations 2011 (CAR) and sought clarity with regard to the definition from other schedules or the revised wording (such as ‘pollutants,’ ‘substances’ and ‘pollution of’ replaced with ‘harm to.’ Others also sought clarification of the scope of the schedule for water activities to ensure that it covered reservoirs, banks, spawning seasons etc..

5.1.2 Scottish Government response on the water technical provisions

Following the feedback received, Scottish Government intends to implement the General Binding Rules (nos. 7 and 35) for water activities in Schedule 9 and the requirements for water activities in Schedule 10.

We acknowledge the stakeholder consultation responses and will reflect the themes and suggestions that have been proposed to change the current GBRs. This will form part of our on-going discussions with SEPA to review and improve regulatory controls of water activities. We do not propose to make these changes at this moment, but will keep them under review.

With regard to the responses relating to bringing the water regime into the 2018 Regulations. We note that the amendments to the 2018 Regulations will integrate SEPA’s four major regimes. Bringing these regimes together has allowed us to simplify the framework by using some common definitions across all activities, whilst retaining the original policy intent. Also, the transitional arrangements have yet to be incorporated into the draft EASR, however the intent is that existing CAR licences and registrations will automatically become an authorisation under the draft Regulations without the need for licence holders to reapply.