River basin management plans - silage, slurry and anaerobic digestate – improving storage and application: consultation

Part 2

12. Miscellaneous amendments to General Binding Rules in Schedule 3 of CAR.

General Binding Rules are used for low risk activities, where it is judged that the activity can be carried out without the need for direct authorisation from SEPA, provided that the associated rules are applied. This approach relies on the completeness and clarity of the rules, such that operators clearly understand what is required of them, whilst ensuring that SEPA can take enforcement action in the event that non-compliances are identified.

Experience of operating the GBRs at Schedule 3 of CAR has identified that a number of these would benefit from some modification to clarify the exact requirements of the rule. These are discussed in more detail below, with suggested draft wording presented to illustrate how this might look.

12.1 GBRs 5, 6, 8, and 14 – measurements of channel width.

These GBRs require minor amendments to ensure a consistent approach to measurement within all GBRs dealing with channel measurements. Currently some GBRs refer to the width at the top of the channel, while others refer to the width at the base of the channel.

There is an existing definition of “channel width” which refers to the width at the top of the channel. It is proposed to add a new definition in Schedule 3, part 2 of “bed width” to refer to the width at the base of the channel, as follows:

“bed width” means the straight line distance that is between opposite bank toes of a river, burn or ditch, and which spans the bed of a river, burn or ditch, including any exposed bars and vegetated islands.

GBR 5.

Amendment to activity at (a) and at rule (c) to remove duplication.

The dredging of a river, burn or ditch that

(a) has an average bed width of less than one metre along the stretch to be worked; and

(c) The activity must not result in the widening of the bed width of the river, burn or ditch;

GBR 6

Amendment to activity at (b) to alter “channel width” to “bed width” as above...

(b) of, or removal of, a temporary bridge over any river, burn or ditch that has a bed width of less than 5 metres; or

GBR 8.

In addition to ensuring consistency of measurement with other GBRs, changes to this GBR are required to clarify that geotextiles must be biodegradable.

The existing rules require that (e) revetments must be constructed from one or more of the following: vegetation; geotextiles; wood other than wood treated with preservatives or non-grouted stone rip-rap.

Stabilisation works can be carried out using geotextiles – typically these are permeable fabrics which, when used with soil, are able to stabilise and protect the banks. However, where geotextiles are non-biodegradable (such as plastic covers) or include non-biodegradable materials (such as pins or ground staples), there is an additional risk of pollution from those materials and a threat to aquatic species. This poses a particular risk where SEPA does not have the opportunity to assess the proposed location of the activities before authorisation, as is the case with authorisation by GBR.

SEPA generally requires that only biodegradable geotextiles are used as a condition of any registration level authorisations. In order to ensure regulatory consistency, the GBR should provide that only “biodegradable” geotextiles may be used to construct revetments.

The existing rules require that works must not result in the heightening of the river banks. SEPA has always expected that the banks would not be lowered either and have advised as such, for if the bank was lowered it could cause river to change course. However, it has been recognised that operators are not aware of this point and that it would be helpful to be explicit in the GBR that lowering is not permitted.

Amendment of rule (e) to clarify geotextiles must be biodegradable

Amendment of rule (i) to include that the bank shall not be lowered

Works to control the erosion of a bank of a river, burn or ditch by revetment.

(e) revetments must be constructed from one or more of the following:

vegetation; biodegradable geotextiles; wood other than wood treated with preservatives or non-grouted stone rip-rap;

(i) the works must not result in the heightening or lowering of either bank;

GBR 14.

Amendment to rules (a), (b) and (c) to reflect that measurements are now defined in Schedule 3, part 2.

The placement of one or more boulders in a river or burn.

(a) The placed boulder or boulders must not occupy more than 10% of the bed width;

(b) the boulder or boulders must not be placed within 20 metres of any other boulder or boulders (whether placed or not), croy, jetty or other in-stream structure occupying more than 10% of the bed width;

(c) no boulder or boulders must be placed in such a way as to extend the width occupied by in-stream structures to greater than 10% of the bed width;

Q 11. Do you agree with the proposed amendments to GBRs 5, 6, 8, and 14?

12.2 Operating machinery in a watercourse

GBR 9.

Amendment of rule (c) to replace tank with plant.

Operating any vehicle, plant or other equipment in or near any surface water or wetland for the purpose of undertaking any other activity specified in this schedule or for the purpose of maintaining an existing manmade structure in or near any surface water or wetland.

(c) any static plant or equipment used within 10 metres of any;

(i) river, burn, canal, ditch or loch, as measured from the top of the bank;

(ii) wetland; or

(iii) transitional water or coastal water, as measured from the shoreline,

must be positioned on a suitably sized and maintained impervious drip tray with a capacity equal to 110% of the capacity of the fuel tank which is supplying the plant or equipment;

Q 12. Do you agree with the proposed amendment to GBR 9?

12.3 Surface water drainage

GBR 10.

We propose various changes to this GBR which would bring added complexity if we retained this as a single GBR. We therefore propose to recast the entire GBR, splitting the activities into four (10A–10D) and providing rules for each element to ensure these are clear.

The activity currently authorised at GBR 10 is any discharge of water run-off from a surface water drainage system from specified “built developments”. It excludes various types of land use listed below on the basis that those discharging surface water from these developments would be required to apply for a CAR licence.

• land of >60ha used for residential premises
• industrial estates,
• car parks of >1,000 spaces
• motorways and A roads.

These criteria were introduced to the GBR in 2017. Prior to that date, the thresholds were set out in the CAR practical guide, not in the legislation itself. The way in which the amendments made in 2017 were framed has led to a number of inconsistencies which now need to be rectified.

We propose that one suite of rules apply to discharges from buildings, roads, yards or any other built developments completed before 1 April 2007. This will clarify that all pre-CAR developments are authorised under the GBR if they comply with the specified simple rules; except for motorways or trunk roads which are subsequently enlarges or altered.

The regulations should also provide that such discharges from buildings, roads, yards or any other built developments completed on or after 1 April 2007 are authorised if they comply with a different set of rules; except for discharges from certain specified developments. The developments specified are those which need a licence or registration, and it is therefore appropriate that this element of the GBR applies only to post-2007 developments. This distinction between pre- and post-2007 activities requires the recasting of the current activity 10 into new activities 10A and 10B.

In addition to this timing consideration, the policy intent (as expressed in the CAR practical guide before 2017) was that discharges from housing estates of more than 1000 houses should not be authorised by the GBR, but should require a licence. In transferring this into the GBR in 2017, it was framed as “housing estates up to 60 hectares of land”. However, SEPA has now sourced information from planning authorities about housing density which suggests that a 60ha threshold would support a development of over 2000 houses, not 1000. We therefore propose to reframe the threshold of 1000 houses as 30 hectares of land, not 60ha. This provision is now presented as GBR 10B(a).

Among the specified activities/developments at new 10B (b)-(d), we propose some clarifications, to specify exactly which activities fall within the general binding rule rather than requiring registration or licence. It is proposed that these are presented as exceptions rather than thresholds – see below.

In new 10B(b), the exception should simply refer to “industrial estates”.

In new 10B(c), this should refer to parking areas with “more than” 1000 spaces.

In new 10B(d), the exception should apply to “trunk roads” (meaning those roads defined in accordance with section 151 of the Roads (Scotland) Act 1984) where any one outfall serves a length of road greater than 1 km.

We propose that the reference to waterbound roads at existing (a)(v) is removed from GBR 10 and is reflected instead at GBR 22 – see GBR 22 for explanation.

We propose a new activity 10C relating to run off from quarries and borrow pits to the water environment.

This means that former activity 10(b) about managing run-off from construction sites now becomes 10D.

10A. The discharge of water run-off from a surface water drainage system to the water environment from buildings, roads other than waterbound roads, yards or any other built developments completed before 1 April 2007, with the exception of run-off from any motorway or trunk road where-

(a) any one outfall serves a length of road greater than 1km, and

(b) the footprint of the road or its associated infrastructure is enlarged or otherwise altered on or after 1 April 2007.

a) All reasonable steps must be taken to ensure that the discharge does not result in pollution of the water environment;

b) the discharge must not-

i. contain any trade effluent or domestic sewage;

ii. result in visible discolouration, iridescence, foaming or sewage fungus in the water environment; or

iii. contain any water run-off from a construction site;

c) the discharge must not result in the destabilisation of the banks or bed of the receiving surface water;

d) all facilities with which the surface water drainage system is equipped to avoid pollution, including oil interceptors, silt traps and SUD system attenuation, settlement and treatment facilities, must be maintained in good order and repair; and

e) all reasonable steps must be taken to ensure that any matter liable to block, obstruct, or otherwise impair the ability of the surface water drainage system to avoid pollution of the water environment is prevented from entering the drainage system.

10B. The discharge of water run-off from a surface water drainage system to the water environment from buildings, roads other than waterbound roads, yards or any other built developments completed on or after 1 April 2007 with the exception of run-off from:

(a) land of more than 30 hectares used for residential premises ;

(b) industrial estates

(c) land used as a motorised vehicle

parking area with more than 1,000

parking spaces;

(d) motorways and trunk roads

where any one outfall serves a

length of road greater than 1km;

a) All reasonable steps must be taken to ensure that the discharge does not result in pollution of the water environment;

b) the discharge must not-

i. contain any trade effluent or domestic sewage;

ii. result in visible discolouration, iridescence, foaming or sewage fungus in the water environment;

iii. contain any water run-off from a construction site.

c) the discharge must not result in the destabilisation of the banks or bed of the receiving surface water;

d) the development must be drained by a SUD system equipped to avoid pollution of the water environment, unless –

i. the run-off is from a development that is a single dwelling and its curtilage; or

ii. the discharge is to coastal water;

e) the discharge must not contain any water run-off from:

i. any fuel delivery areas constructed on or after 1st April 2007, or any areas where vehicles, plant and equipment are refuelled constructed on or after 1st April 2007;

ii. vehicle loading or unloading bays constructed on or after 1st April 2007 where potentially polluting matter is handled; or

iii. oil and chemical storage handling and delivery areas constructed on or after 1st April 2007;

f) all facilities with which the surface water drainage system is equipped to avoid pollution, including oil interceptors, silt traps and SUD system attenuation, settlement and treatment facilities, must be maintained in good order and repair; and

g) all reasonable steps must be taken to ensure that any matter liable to block, obstruct, or otherwise impair the ability of the surface water drainage system to avoid pollution of the water environment is prevented from entering the drainage system.

10C. The discharge of water run-off from a quarry or borrow pit constructed on or after [coming into force date]

a) All reasonable steps must be taken to ensure that the discharge does not result in pollution of the water environment;

b) the discharge must not-

i. contain any trade effluent or sewage; or

ii. result in visible discolouration, iridescence, foaming or sewage fungus in the water environment;

c) the discharge must not result in the destabilisation of the banks or bed of the receiving surface water;

d) the discharge must not contain any water run-off from:

i. any fuel delivery areas constructed on or after 1st April 2007, or any areas where vehicles, plant and equipment are refuelled constructed on or after 1st April 2007;

ii. vehicle loading or unloading bays constructed on or after 1st April 2007 where potentially polluting matter is handled; or

iii. oil and chemical storage handling and delivery areas constructed on or after 1st April 2007;

e) all facilities with which the surface water drainage system is equipped to avoid pollution, including oil interceptors, silt traps and SUD system attenuation, settlement and treatment facilities, must be maintained in good order and repair; and

f) all reasonable steps must be taken to ensure that any matter liable to block, obstruct, or otherwise impair the ability of the surface water drainage system to avoid pollution of the water environment is prevented from entering the drainage system.

10D. The discharge of water run-off from a construction site to the water environment where the site, including any constructed access tracks, does not:

(i) exceed 4 hectares;

(ii) contain a road or track length in

excess of 5km; or

(iii) include any area of more than 1 hectare or any length of more than 500 metres on ground with a slope in excess of 25°.

a) All reasonable steps must be taken to ensure that the discharge does not result in pollution of the water environment;

b) the discharge must not-

i. contain any trade effluent or sewage; or

ii. result in visible discolouration, iridescence, foaming or sewage fungus in the water environment;

c) the discharge must not result in the destabilisation of the banks or bed of the receiving surface water;

d) the discharge must not contain any water run-off from any built developments unless-

i. during construction those developments are drained by a SUD system or equivalent systems equipped to avoid pollution of the water environment;

e) the discharge must not contain any water run-off from:

i. any fuel delivery areas constructed on or after 1st April 2007, or any areas where vehicles, plant and equipment are refuelled constructed on or after 1st April 2007;

ii. vehicle loading or unloading bays constructed on or after 1st April 2007 where potentially polluting matter is handled; or

iii. oil and chemical storage handling and delivery areas constructed on or after 1st April 2007;

f) all parts of a construction site on which –

i. operations first commenced on or after 1st June 2018; and

ii. any works are to be undertaken, or any vehicles are to be operated or parked,

must be drained by a surface water drainage system with capacity to accommodate the maximum volume of run-off that would reasonably be expected to occur from that land during the period of construction;

g) all facilities with which the surface water drainage system is equipped to avoid pollution, including oil interceptors, silt traps and SUD system attenuation, settlement and treatment facilities, must be maintained in good order and repair; and

h) all reasonable steps must be taken to ensure that any matter liable to block, obstruct, or otherwise impair the ability of the surface water drainage system to avoid pollution of the water environment is prevented from entering the drainage system.

Q 13. Do you agree with the proposed amendments to GBR 10?

12.4 Discharge of abstracted groundwater back to groundwater

GBR 15.

This GBR allows the temporary abstraction of groundwater at certain construction sites, in order for the site to be worked effectively; and the return of that water to the water environment via a surface water drainage system. We propose to allow that abstracted water, plus any rainwater, to be returned to the same geological formation or mine workings, provided no substances are added to, or otherwise allowed to enter the abstracted water.

Amendment of rules (b) and (f) and addition of rules (g) and (h) to incorporate this approach

The temporary abstraction of groundwater at:

(a) a construction site for roads, railways, buildings, pipelines, communication links or other built development; or

(b) a site at which the maintenance of such development is being undertaken;

by means of:

(i) pumping the groundwater directly from any excavation or excavations on the site; or

(ii) pumping the groundwater from any wells or boreholes on the site in order to help dewater any other excavation or excavations on the site;

and, if desired, the subsequent discharge of the abstracted groundwater if desired to the water environment

(b) other than where paragraph (g)(i) applies, groundwater must not be abstracted from any excavations, wells or boreholes that are within 250 metres of any surface water unless the abstracted water is discharged into the surface water at the nearest part of the surface water to the point of abstraction and in accordance with paragraph (f) or g(ii), as applicable,

(f) if the abstracted groundwater is taken directly from an excavation and this water, and any precipitation or water run-off that has also collected in the excavation, is discharged to the water environment, it must be discharged via a surface water drainage system authorised under these Regulations subject to the consent of the person having operational control of the system;

(g) if the abstracted groundwater is taken from a borehole or well, and is discharged to the water environment, it must be-

(i) discharged directly back to the same part of the geological formation or the mine workings from which it was abstracted, provided that the abstracted water does not contain any radioactive substances, and that no substances are added to, or otherwise allowed to enter, the abstracted water prior to its return, or

(ii) discharged via a surface water drainage system authorised under these Regulations subject to the consent of the person having operational control of the system, and

(h) all reasonable steps must be taken to ensure that the discharge of abstracted groundwater does not result in pollution of the water environment.

Q 14. Do you agree with the proposed amendments to GBR 15?

12.5 Construction of waterbound roads

GBR 22.

This GBR currently focuses on the construction and maintenance of waterbound roads and tracks. We propose that this is expanded to include the discharge of water run-off from waterbound roads which is currently at GBR 10.

In addition, the current rule at GBR 22 is inconsistent with the rules which apply to similar activities in inland waters, (for example, such as those provided in GBR 6), to the effect that the activity must not result in pollution of the water environment.

Amendment of activity to incorporate (b) from GBR 10.

Amendment of rules to reflect rules in similar GBRs for consistency of approach.

The discharge of surface water from waterbound roads and tracks to the water environment, including during the construction and maintenance of such roads and tracks.

(a) All reasonable steps must be taken to ensure that any discharge does not result in pollution of the water environment;

(b) the discharge must not result in visible discolouration, iridescence or foaming or sewage fungus in the water environment;

(c) the discharge must not result in the destabilisation of the banks or bed of the receiving surface water.

Q 15. Do you agree with the proposed amendments to GBR 22?

12.6 Placement of trees to prevent bank erosion

GBR 25.

This GBR allows the placement of trees to prevent bank erosion, subject to certain conditions. The activity is broken into sections (a) and (b), and experience suggests that (b) narrows the scope of the activity unnecessarily.

Rule (f) currently places restrictions on some of the authorised operations that may be taken to protect eroding banks, namely the placement of willow or willow stakes in the river, burn or ditch or reducing the angle of a bank or placement of stones. However, the GBR is intended to allow alternatives to willow placement as a means of protecting eroding banks, therefore references to willow should be removed from GBR 25(f)(ii).

Amendment to activity to remove (b) in the interests of clarity

Amendment to rule (e)(i) to include ‘burn or ditch’, and add the phrase ‘any part of’

Amendment to rule (f)(i) to allow the placement of trees

Amendment to rule (f)(ii) to remove reference to willow

The placement of trees or parts of trees in any river, burn or ditch to protect eroding banks.

(e) The placement may extend beyond the upstream and downstream ends of an eroding bank only to the extent necessary to:

(i) Prevent any part of the river, burn or ditch, from going around the placements and eroding the bank behind them; or

(f) in protecting eroding banks:

i) the angle of an eroding bank may only be reduced for the purpose of enabling the establishment and growth of trees or the placement of trees or parts of trees; and

(ii) stones may be placed at the

toe of the bank for the purpose of

preventing the bank being

undercut before the trees have

become established, provided that

any stones used are no larger

than the largest stones that have

been deposited on the channel

bed within 500 metres of the

eroding bank;

Q 16. Do you agree with the proposed amendments to GBR 25?

12.7 Oil storage provisions

GBR 27.

The activity currently authorised by the GBR is the storage of oil on premises used for “residential purposes” where the oil is used for heating or cooking. This means, in practice, that commercial premises which can be described as in residential use, such as hotels, rented accommodation, holiday lets and B&Bs are covered by the GBR.

The intention was that GBR 27 would not apply to commercial premises (which should be covered by GBR 28) only to private dwellings.

Therefore we propose to revert to the wording used in the Water Environment (Oil Storage) (Scotland) Regulations 2006, and use the term “private dwellings”.

Amendment to activity to clarify that it specifically applies to premises used for private dwellings.

The storage of oil on premises used for private dwellings (except where the premises is a vehicle or vessel), where the oil is–

a) stored in a container with a capacity of 2,500 litres or less; and

b) where the oil is used solely to serve a fixed combustion appliance installation providing space heating or cooking facilities

GBR 28.

This GBR deals with oil storage for commercial premises and major installations. Experience has shown that some minor amendments would be beneficial in the interests of clarity.

The requirements of rule (f)(vii)(3) are that where oil is supplied from a fixed tank using a permanently-attached, flexible pipe, then that pipe has to be (a) enclosed in a secure cabinet, (b) have a lockable valve or (c) the premises must have appropriate security, and in addition rule (f)(vii)(4) requires that the pipe must be kept within the secondary containment system. This means that a secure cabinet with drip tray needs to be in the secondary containment, which was not a requirement of the original Water Environment (Oil Storage)(Scotland) Regulations 2006, on which these GBRs were based. The practical effect of this is that commonly used plastic fuel stations (integrally bunded tanks with a pumped discharge with the flexible delivery pipe housed in the secure cabinet at the front) no longer comply with the requirements. This was not the policy intent at the time these changes were made, moreover the requirement is unnecessary as oil is only delivered via the pipe if it is pumped, therefore a drip tray is sufficient. The oil is also delivered from the top of the tank and the pipe hooked up at the top so there is no means of the tank draining oil by gravity.

The regulations should therefore provide that the requirement in (f)(vii)(4) that the pipe must be kept within the secondary containment system should only apply to (f)(vii)(3)(b) and (c) – i.e. only where the pipe has a lockable valve or the premises have appropriate security does the pipe need to be kept within the secondary containment system (or positioned above an area which drains to an oil interceptor). It is sufficient for the pipe to be enclosed in a secure cabinet with a drip tray in terms of (f)(vii)(3)(a), without the need for secondary containment as well. This will deliver the policy intent.

We also note that (f)(vii)(3) could be simplified by removing the words “the pipe must” from (b) and rewording (c) so that it starts “be situated in premises which have appropriate security”.

The requirements of rule (f)(viii)(1) are that any pump has to be fitted with a non-return valve in its feed line. Some oil distribution sites do not have a non-return valve, because while these are common in smaller domestic and agricultural tanks they are not usually suitable for larger tanks to pump to gantry delivery type systems. The larger tanks have either a standard gate valve which is manually closed at night or an electronically controlled valve connected to the activation of the pump so it would only open in response to the pump being turned on. We propose to add the wording “or an isolating device” to cover these circumstances.

We propose additional defined terms in Schedule 3, part 2 for “draw off pipe” and “fill pipe”, as follows:

“draw off pipe” means a pipe used to withdraw oil from a container

“fill pipe” means a pipe used to deliver oil into a container.

Amendment to rules:

f(v) to clarify that it includes any vent pipe

f(vii)(3) (b) and (c) and f(viii)(4)to better clarify the requirements f(viii)(1) to include the option of an isolating device

The storage of oil on premises other than:

a) where the premises is a vehicle or vessel.

b) where the storage is:

i. an activity specified in GBR 26 or 27; or

ii. otherwise authorised under these regulations;

c) in a container which is wholly underground (unless situated wholly within a building underground)

(f) (v) the tank must be fitted with an automatic overfill protection device (which may include an alarm sounding device) if the filling operation is controlled from a place where it is not reasonably practicable to observe the tank and any vent pipe;

(f) (vii) (3) the pipe must-

(a) be enclosed in a secure cabinet (equipped with a drip tray) which is locked shut when not in use; or

(b) have a lockable valve where it leaves the container which is locked shut when not in use and must be kept within the secondary containment system; or

(c) be situated in premises which have appropriate security to prevent unauthorised access;

(4), where sub-paragraph 3(b) or (c) applies, the pipe must be kept within the secondary containment system or positioned above an area which drains to a suitable oil interceptor when not in use;

viii) any pump must be:

(1) fitted with a non-return valve or an isolating device in its feed line;

Q 17. Do you agree with the proposed amendments to GBRs 27 and 28?

13. Summary and next steps.

Protection of the water environment is important for our health, economy and way of life. Proper storage of organic products play a key role in this protection. The SSAFO regulations were last amended in 2003 and as farming methods change, and facilities potentially deteriorate with age, it is important that legislation keeps pace with change and provides appropriate protection.

The proposed legislation has taken the main elements of the Control of Pollution (Silage, Slurry and Agricultural Fuel Oil) (Scotland) Regulations 2003 and brought them in line with current practice. The main proposals are:

• to consolidate the calculation for slurry storage across the revised regulations and NVZ regulations;
• include the storage of liquid digestate in the revised regulations; and
• remove the exemption for stores built prior to 1 September 1991.

These, along with the other proposed amendments, will bring the legislation in line with the best practice management for farming and commercial enterprises storing organic substances.

The Scottish Government considers that these proposals are consistent with its regulatory approach to protection of the water environment and have the potential to benefit farmers through better nutrient management. These will also contribute to Scotland’s climate change mitigation through better control over emissions.

Part 2 sets out proposals for various minor amendments to existing general binding rules at Schedule 3 of CAR. In addition to these proposals, we plan to take this opportunity to make a number of minor adjustments and corrections in the body of the Regulations, in the interests of accuracy and transparency.

Responses to this consultation will be taken into consideration, and it is anticipated that the revised legislation will be brought before the Scottish Parliament in September 2021 and come into force towards the end of 2021.