Water Abstraction
Similar to the situation regarding development plans, the ECJ has found that the United Kingdom had not transposed Article 6(3) and (4) of the Habitats Directive correctly as regards water abstraction plans and projects.
42. Transposition could achieved by amending Part IV of the Habitats Regulations (through draft Regulation 15) to specifically include reference to the new regime for protection of the water environment established by the Water Environment (Controlled Activities) (Scotland) Regulations 2005 ( CAR).
43. Further information about the Water Environment (Controlled Activities) (Scotland) Regulations may be obtained at:
http://www.scotland.gov.uk/Publications/2005/05/0995747/57481
44. Amending Part IV of the Habitats Regulations in this way relates to the responsibilities of SEPA (which already exist under regulation 3(4)) as competent authority in the context of the Habitats Regulations by clarifying its powers to grant or vary any authorisation under regulations 8 (registration) and 9 (water use licence) of the CAR in accordance with regulations 48 to 51 of the Habitats Regulations. This will relate to all water use licences (and not just those for water abstraction) which might have a significant effect on an SAC or SPA. (In practice, where SEPA receives an application for authorisation under regulation 8 of the CAR but considers that the activity is likely to have a significant effect on a European site, SEPA will normally require the activity to be considered under regulation 9).
45. If SEPA judges that the granting of a new water use licence might have a significant effect on a European site, it will be required to make an appropriate assessment of the implications for the site in view of the site's conservation objectives. In light of the conclusions of the assessment, and subject to regulation 49, SEPA can only grant consent after having ascertained that the granting of a licence will not adversely affect the integrity of the European site. These provisions will also apply when SEPA comes to review an existing consent. Your views on this are welcomed.
46. As noted above, this approach merely clarifies SEPA's responsibilities as a competent authority in the context of the Habitats Regulations. However, those currently operating under the terms of a consent granted under section 36 of the Electricity Act 1989 (and where authorisation is also required under CAR) should be aware that this approach changes the way in which the Habitats Regulations specifically engage with their operations.
47. Draft regulation 15 also ensures that water orders made under section 17(2) of the Water (Scotland) Act 1989 are subject to appropriate assessment in terms of regulations 48-51. Orders under s.17(2) provide for compulsory acquisition by Scottish Water of rights to abstract water.
48. Your views on this are welcomed.