Draft Water Intended for Human Consumption (Private Supplies) (Scotland) Regulations 2017: consultation

3. Proposals

3.1 For large private water supplies (also known as 'Type A supplies'), it is proposed that the Private Water Supplies (Scotland) Regulations 2006 are replaced (in so far as they apply to those supplies) with a fresh set of Regulations, a draft of which is attached. The regulations have been developed following consultation with local authority representatives environmental health officers with responsibility for private water supplies.

3.2 Part 1 of the 2017 Regulations makes general provision for citation, commencement, extent, application, interpretation etc.

This part of the regulations excludes from the regulations: water supplied by Scottish Water; water from a small supply which is exempt under regulation 5; water for sale in bottles or containers (which is regulated for elsewhere); water which is a medicinal product; and water which is used exclusively for the purposes of washing a crop after it has been harvested, or which is used during the distillation of spirits. It contains a number of new or revised definitions, including a revised definition of 'relevant person'; new terms including 'water supplier', 'water supply system' and 'enforcing authority'; and new types of notice (information, remediation, enforcement and emergency). Some expressions are no longer used and are not therefore defined, such as 'Type A supply', 'Type B supply', 'private water supply' and 'monitoring local authority'. This Part also makes further provision in relation to supply zones and water from those small supplies which are exempt from the regulations. Water from a small supply is generally exempt if the water is supplied from a private water supply system which provides (in total) less than 10 m ³ of water a day or serves (in total) fewer than 50 persons. However, water (from a small supply) is not exempt if it is supplied as part of a commercial or public activity, or it is supplied to premises used for a commercial or public activity.

Question 2: Do you have any comments on the amended definition of a relevant person?

Question 3: Do you have any comments on the definition of a private water supply system?

3.3 Part 2 makes provision in relation to a register of supply systems etc.

The register is to contain information in relation to each large private water supply system used to supply water to premises in a local authority's area and the quality of the water in and supplied by the system. The detail of the information required is specified in schedule 1 of the draft Regulations and the contents of the register are to be reviewed annually. The owner of premises which receive water through an unrecorded part of a supply system must give the local authority for the area the information it needs to register that part of the system. This part of the draft Regulations also contains requirements for local authorities to provide access to certain information about water quality.

3.4 Part 3 makes provision in relation to the risk assessment of water supplies.

In contrast to the requirements of the 2006 Regulations, under the 2017 Regulations local authorities must carry out a risk assessment in relation to the water supplied through each private water supply system to premises in their area to establish if there is any risk that the water could pose a potential danger to human health, with each initial risk assessment being completed before 1 January 2022. The risk assessment must be carried out using a methodology which is approved by the competent authority which is the Drinking Water Quality Regulator for Scotland ( DWQRS). This provision is necessary for transposition of Annex II of the Amending Directive. The results of each risk assessment are to be made available to anyone who requests them, and notified to the owner and occupier of each premises to which it relates. Risk assessments are to be reviewed and if necessary updated at least every 5 years, or earlier if there are adverse changes to the quality of the water or modifications to the supply system. There are also requirements in relation to registration and risk assessment of unused or disused systems being brought into use.

3.5 Part 4 makes provision in relation to water quality standards and duties.

This part sets out the requirements for water quality at each point of compliance as specified in the Drinking Water Directive and introduces a duties of care on a person not to take any action which has the effect of a deterioration in the water quality and to ensure that no substance or material used or introduced into a supply of water either remains in the water at concentrations higher than necessary or reduces the protection of human health. Part 4 also introduces, by reference to schedule 2, additional duties on water suppliers (who supply water as part of a commercial or public activity).

3.6 Part 5 makes provision in relation to monitoring and analysis.

The terms "check monitoring" and "audit monitoring" no longer appear in Annex II of the Drinking Water Directive. Accordingly, these terms are not used in the draft Regulations. Part 5 sets out requirements for local authorities to ensure that regular monitoring of the quality of water in their area is carried out to check that water available to consumers meets the prescribed water quality standards and requires local authorities to prepare and implement a monitoring programme for each supply zone. A monitoring programme is required for each supply zone. The supply zone will be designated by the DWQRS who will determine which private supplies form part of the supply zone. This Part also specifies the methods of analysis to be used.

Question 4: Do you have any comments on the concept of water supply zones in the context of private water supplies?

3.7 Part 6 makes provision in relation to investigation and remedial action.

This part sets out requirements for local authorities to investigate failures of water to meet the prescribed parametric values and take remedial action and inform consumers of the water if the water supply poses a potential danger to human health.

3.8 Part 7 makes provision in relation to information and reporting.

This part places duties on owners of premises served with a private water supply to provide consumers of the water with information on its quality and, in commercial or public premises, to display a notice with information about the source, quality and treatment of the water. Part 7 also places duties on local authorities to provide information on water quality annually to certain public authorities and on the DWQRS to publish a report on private water quality in Scotland every three years.

3.9 Part 8 makes provision in relation to enforcement powers.

This part places a duty on local authorities to monitor compliance with, and enforce the provisions of, the regulations.

It gives local authorities power to serve a notice (an "information notice") on a person requiring the person to provide information including relevant documentation on water quality and powers of entry and inspection in relation to establishing compliance with the regulations. It introduces provision for remediation and enforcement notices by reference to schedules 7 and 8 respectively.

A remediation notice can be served by a local authority where it reasonably believes that a supply of water poses a potential danger to human health or is failing to meet one or more of the water quality standards and the failure is likely to continue or recur.

An enforcement notice can be served where the local authority reasonably believes that a person has contravened or is contravening a requirement of the regulations and is not rectifying the contravention or preventing its recurrence.

With both forms of notice there is a right of appeal to the sheriff, and action can be taken by the local authority in response to a failure to comply with a notice. A failure to comply with a notice is an offence.

Part 8 also makes provision for a local authority to act where it reasonably believes urgent action is required to reduce or remove a risk to public health or the quality of a water supply as a result of a person's contravention or failure to comply with the regulations. The local authority may undertake the necessary work itself or serve an emergency notice on the person requiring them to take such steps as it considers necessary. Part 8 makes provision regarding the variation or withdrawal of any of the notices under this Part, powers of entry, recovery of expenses by the local authority and a new power of the DWQRS to give directions or guidance to local authorities as to the exercise of their functions under the regulations.

Question 5: Do you have any comments on the enforcement provisions of the new regulations?

3.10 Part 9 makes provision in relation to offences.

An offence is committed by a person failing to comply with the duty to provide information, duties in relation to bringing into use unused or disused systems, and duties of care in relation to supplies of water and substances and materials; failure to comply with an information notice; obstruction or failing to comply with a requirement under the powers of entry provisions; failure to complete a step required by an emergency notice; and making false statements in applications or in the furnishing of any information required. There is a standard provision in relation to offences committed by bodies corporate. The penalties vary as to the gravity of the offence, with offences which more directly impact on human health attracting a higher maximum fine.

3.11 Part 10 makes changes to other enactments.

For the purposes of the Water (Scotland) Act 1980, this Part specifies when water, to which the regulations apply, is to be treated as being wholesome. The water is to be regarded as wholesome if it satisfies the water quality standards of the regulations and unwholesome if it does not.

3.12 Schedule 1 contains details of the information which each local authority register of private water supply systems is to contain or specify and the dates by which the register must contain that information. Information is required about the supply system itself and the water supplied through the system.

Question 6: Do you have any comments on Schedule 1 - the information which must be registered?

3.12 Schedule 2 sets out the additional duties etc of a water supplier. A 'water supplier' is a person who introduces water into, or uses, a private water supply system for the purposes of supplying water to the premises of a different person as part of a commercial or public activity. This would not therefore include the owner of land from which a source of water is taken by another person, unless the owner actively supplies the water to those premises as part of a commercial or public activity. A water supplier has a duty to meet the water quality standards of the regulations and to provide information on the quality of the water supplied to the consumers of the water. There are offences provisions in relation to failure to comply with those duties.

Question 7: Do you have any comments on the definition of a water supplier and the duties placed upon a water supplier?

3.13 Schedule 3 sets out the parameters and parametric values as prescribed in the corresponding Annex I of the Drinking Water Directive. The parameters are grouped into microbiological, chemical and indicator parameters.

3.14 Schedule 4 sets out requirements for monitoring as prescribed in Annex II of the Drinking Water Directive and in the Euratom Directive. The Drinking Water Directive, and also accordingly the regulations, allow the standard minimum sampling frequencies to be reduced, and some parameters to be removed from the list of parameters to be monitored, if certain conditions are satisfied.

3.15 Schedule 5 sets out the methods of analysis for which specifications are laid down in Annex III of the Drinking Water Directive and in the Euratom Directive.

3.16 Schedule 6 contains provisions for derogations, as permitted by the Drinking Water Directive, but without provision for a third derogation approved by the European Commission.

3.17 Schedule 7 sets out the detailed provisions in relation to remediation notices, including the circumstances in which the local authority can serve a notice, appeals procedure, action which a local authority can take if a person fails to comply with a notice, and offences.

3.18 Schedule 8 sets out the detailed provisions in relation to enforcement notices, including the circumstances in which the local authority can serve a notice, appeals procedure, action which a local authority can take if a person fails to comply with a notice, and offences.

3.19 Schedule 9 sets out further provision in to relation powers of entry, including giving notice, authorisation by warrant, evidence of authority, securing premises on leaving, compensation and protection of commercially confidential information.

3.20 Schedule 10 sets out provisions in relation to the recovery of reasonable expenses for certain activities by local authorities, namely collection and analysis of water samples and carrying out and reviewing risk assessments. The aim of the provision is to ensure that local authorities are able fully to recover the costs of their enforcement of these regulations. Owing to the diversity of private supplies across Scotland we propose not to specify upper limits on these costs as they may vary from area to area but continue to require that cost recovery should be for expenses reasonably incurred.

Question 8: Do you have any comments on the proposals regarding recovery of charges?

3.21 Schedule 11 makes related amendments to the Water (Scotland) Act 1980, the Private Water Supplies (Grants) (Scotland) Regulations 2006, and the Private Water Supplies (Scotland) Regulations 2006.

Question 9: It is proposed that smaller supplies will be the subject of separate new regulations in due course. Do you have any views on whether and, if so, which of the provisions of the current draft Regulations should not apply to smaller supplies?