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

5. Water Technical Provisions

5.1 Introduction

5.1.1 The Water Environment (Controlled Activities) (Scotland) Regulations 2011 (CAR) currently provide the principal regulatory framework for protecting the water environment in Scotland. First introduced in 2005, CAR has been progressively improved.

5.1.2 Many aspects of the 2018 Regulations are derived from CAR and, consequently, there are many similarities, including the availability of different tiers of authorisation depending on environmental risk.

5.1.3 Transitioning authorisations for water activities into the 2018 Regulations will have benefits for water users. These include:

• authorising radioactive substances, waste, water, and industrial activities under a single framework
• more flexible permitting approaches, such as entire site permits and corporate permits to suit the needs of operators
• the ability to use standard conditions in permits and registrations to improve regulatory consistency
• the availability of notification as a new tier of authorisation, to give more flexibility for the authorisation tiers in future
• a ‘Fit and Proper Person’ test, better able to uphold high standards in the industry
• more effective enforcement tools to better deal with non-compliant sites and protect the water environment

5.2 Major Changes

5.2.1 We do not propose any major changes regarding water activities.

5.3 Minor Changes

5.3.1 Existing CAR licences and registrations will automatically become an authorisation under the draft Regulations without the need for licence holders to reapply. We expect the exception to be a small number of CAR registration holders who may be unable to comply with the standard conditions in their equivalent registration under the 2018 Regulations. In those circumstances the person carrying on the activity will need to apply for a permit.

5.3.2 Water activities – General Binding Rules (GBRs). These are used for low-risk activities, where it is judged that the activity can be carried out without the need to apply to SEPA for an authorisation provided the associated rules are complied with.

5.3.3 The current GBRs for water activities are contained in CAR. These will be brought into the draft Regulations, with some minor amendments as noted in section 5.3.6 and Annex D below. We are proposing two new 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 —

(a) temporary crossings and temporary structures in a river, burn, ditch or loch, or

(b) any temporary works associated with the undertaking of any other activity specified in this schedule or for the purpose of maintaining an existing man-made structure in a river, burn, ditch or loch.

Unless the installation or removal is authorised by a registration or permit under these Regulations.

5.3.4 GBR 35 – The discharge of hot tub effluent, from a premises with only one hot tub, to groundwater. This new GBR activity relates to the discharge of hot tub effluent from a single hot tub. To control the bacteria and make it safe to bathe chemicals disinfect the water in hot tubs. These chemicals, usually chlorine and bromine, can be harmful to aquatic life. By establishing this GBR the discharge to groundwater from a single hot tub (e.g. from a domestic house) would be allowed, whilst discharges to groundwater from more than one hot tub would require a registration.

5.3.5 GBR 7 – The installation and removal of — (a) temporary crossings and temporary structures in a river, burn, ditch or loch, or (b) any temporary works associated with the undertaking of any other activity specified in this schedule or for the purpose of maintaining an existing man-made structure in a river, burn, ditch or loch [unless the installation or removal is authorised by a registration or permit under these Regulations. This new GBR activity covers temporary bridges and other temporary structures where these are not regulated by a registration or a permit. Currently there are various levels of authorisation for activities that may require temporary works in or around a watercourse. The proposed GBR would simplify this activity, create the same level of authorisation (GBR) for the same level of environmental risk.

5.3.6 Proposed changes to the existing GBRs include adding “lochs, or burns, ditches etc.” text to ensure the applicability to all relevant water bodies. Adding notification requirements in two GBRs (Nos. 30 and 33) to ensure that the construction of a constructed farm wetland is in accordance with guidance and designed correctly. Also, the addition of a rule to activity 23 to allow the application of pesticide to skunk cabbage (an invasive non-native species) which grows in waterlogged areas. And, widening the scope of GBR 6 to include what was previously GBR 7 in a single simpler GBR.

5.4 Legislative Changes

5.4.1 CAR will be revoked completely, and the provisions will be incorporated into the 2018 Regulations. In doing this the draft Regulations align with the parts of the following European legislation previously transposed in part by CAR:

• The Water Framework Directive (Directive 2000/60/EC)
• The Groundwater Directive (Directive 2006/118/EC)
• The Priority Substances Directive (Directive 2008/105/EC as amended by Directive 2013/39/EU)
• The Environmental Impact Assessment (EIA) Directive (Directive 85/337/EEC)

5.4.2 The technical requirements of these Directives (detailed in Schedule 10) apply to these water activities.

Question 16 Do you have any 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?

5.4.3 Other amendments. We are also taking the opportunity to make minor amendments and corrections to the water activities arrangements, and these are set out in Annex D. The draft Regulations will enable SEPA to continue to work with operators of controlled activities to protect, and improve, the water environment in a similar way to now. The activities and technical requirements are largely unchanged, however, there will be a few differences in detail.

Question 17 Do you have any comments on the minor amendments relevant to water activities as set out in Annex D?