5. REGULATORY MEASURES
The Water Framework Directive requires that there be controls over activities liable to cause pollution of waters. This will be implemented through the introduction of a programme of measures for the control, including prevention or mitigation, of pollution by 2009. Some of these measures have already been implemented for various activities, including those involving risks of point source pollution, under the Controlled Activities Regulations.
The Controlled Activities Regulations ( CAR) 2005 were introduced to control point source pollution, abstraction and impoundment, and building and engineering works impacting on the water environment. It is envisaged that the same system of control will also apply to diffuse pollution. We propose that an approach similar to that of the CAR should be incorporated into the control measures for rural land use activities that present a potential risk through diffuse pollution.
The CAR provide a framework of controls reflecting the risk associated with different activities:
- General Binding Rules ( GBRs)
These rules are intended to ensure the regulation of certain activities without the need for registration or licensing. This minimises the regulatory burden on operators, and the risk to the water environment is still mitigated as it is possible for SEPA as the competent authority to require further controls if problems become apparent.
Registration provides a means of assessing activities concentrated in an area where cumulative impacts are likely. There is scope for SEPA to set conditions through registration. This will provide beneficial flexibility enabling SEPA to set simple constraints without the need to use a licence.
Licences will control those activities posing the greatest risk to the water environment. A significant proportion of licences will be simple authorisations permitting activities with standard conditions. Other licences will be more complex and SEPA will have powers to set a range of site-specific conditions.
5.2 Proposed Diffuse Pollution Controls
A similar system of control, very much based on GBRs, is planned for the control of diffuse pollution. In order to target the risks without imposing undue regulatory burdens we propose to develop both national and targeted GBRs.
The proposed structure in respect of Diffuse Pollution is set out below.
These will be based on universally agreed levels of good practice and will ensure a level playing field for the industry. The set of national GBRs should be measures which are straightforward and which provide basic protection of the water environment. A set of suggested GBRs is given at Annex A as a basis for consideration. Development of these GBRs will take place in conjunction with stakeholders.
Pollutant control requirements tend to vary from location to location, as described earlier. To this end we intend to develop a set of targeted GBRs for certain areas where specific problems are identified and water bodies are at risk of not achieving good ecological status as a result. Where it is determined that these targeted GBRs will be required, as a measure to control diffuse pollution to a degree above the national GBRs, it is expected that registration of the activities concerned will be a requirement.
A simple form of registration is envisaged for particular activities, such as a type of farming or forestry, in the area where the risk from a particular pollutant to the environment is high. Registration will involve the signing up to a set of conditions as laid out in the targeted GBR.
The approach proposed for rural land use is broadly similar to that for other industries. The Department's starting point is that as far as is practicable the basic level of authorisation, national GBRs, should be used as the basis of control. This minimises the regulatory burden on the industry, while requiring a basic minimum of action to be taken to prevent pollution. It will entail the use of good management practices, which should in this as in other sectors be those developed in consultation with representatives of the sector. The PEPFAA Code, re-issued earlier in 2005, already provides a background from which a set of national GBRs can be developed.
The advantage for the industry is that this involves compliance through measures which are well understood and generally accepted as good practice not entailing excessive cost.
The rules of GBRs are designed that they should:
- be simple and practicable
- give scope to develop suitable guidance on how to undertake such activities.
In catchments impacted by diffuse pollution where the national GBR is judged insufficient to control the risk, farmers or foresters would be subject to a set of targeted GBRs related to the pollutants identified; progress would be monitored through River Basin Management Plans. While targeted GBRs will require registration and be more prescriptive and detailed than national GBRs, the same principles will apply.
Where farmers are already registered under CAR, for instance because they abstract water on a substantial scale, it is envisaged that adherence to targeted GBRs would be an extension of their existing registration. Further development work will ascertain whether fees will be required to be on an administrative or subsistence basis.
The GBRs, both national and targeted, should be developed in the course of the next year in consultation with NFU Scotland and other interested parties.
An outline of a set of possible national GBRs for general authorisation is given at Annex A. The examples given are drawn mainly from the guidance of the PEPFAA Code, from GAEC or from the NVZ Action Programme.
In the CAR system licences, the most demanding level of control, are planned for those activities posing the greatest risk to the water environment, and they are specific to the particular operator. The Executive's intention is that in agriculture and forestry they would be used as a safeguard and thus only in individual cases where objectives were not being achieved within the necessary time period.
It is expected that where a farm is subject to the PPC Regulations it will be regarded as equivalent to having a licence under the CAR, the highest of the three levels of authorisation. This can be assumed to be more demanding than the GBRs discussed in this paper.
5.3 Conclusion
This section has set out a proposal for a regulatory system in line with the Controlled Activities Regulations 2005, which would involve a set of General Binding Rules applicable across Scotland and a series of specific GBRs designed to tackle specific pollutants in at-risk catchments. The Executive proposes to bring forward more specific proposals for GBRs, both national and targeted, for consultation in 2006. At that stage a Regulatory Impact Assessment ( RIA) will be prepared.
Questions
8. Do you agree that farming should be subject to a regulatory structure similar to that already planned for other activities under CAR?
9. Do you agree that measures should be introduced as early as possible to enable us to meet WFD Targets?
10. Are you content that there should be general binding rules ( GBRs) for activities which contain potentially polluting practices?