Scottish Government

3. How SEPA will use the proposed standards

As outlined in section A, SEPA will use its regulatory powers to manage environmental capacity in a way that protects and, where necessary, improves the water environment, whilst ensuring that sustainable uses of these waters can continue and flourish.

Assessing current conditions against the environmental standards - for water quality, water resources, morphology and pollutants (when introduced) - will determine the available capacity of each water body to accommodate further activities or developments without harming biology.

Where there is significant remaining capacity, this means that, for instance, part of a river could accommodate some changes, such as reduced water flow or alterations to the banks, without compromising the status of its ecosystem. However, where there is very little or no available capacity, one or more standards are close to failure, or have been failed. The existing pressures on that water body therefore between them pose a risk of it not achieving 'good' ecological status.

The environmental standards set out in Annex A are intended to help define this capacity of surface water bodies to accommodate alterations to their characteristics, without those alterations posing a significant risk to the status of the plants and animals they support.

Taking action to improve the status of the water environment

We expect SEPA to consider requiring action to improve the status of the water environment where it is confident that, without such action, there is a significant risk of failing to achieve the relevant environmental objectives.

SEPA will have the necessary confidence that there is a significant risk where:

• monitoring or modelling data provide a high level of confidence that an environmental standard identified as needed to support the achievement of 'good' status or another relevant objective is being failed; or
• biological monitoring results provide a high level of confidence that the ecological quality of the water body is currently worse than that required to achieve 'good' status or another relevant objective; or
• the weight of evidence overall, including, where relevant, evidence such as compliance records and histories of incidents, provides a high level of confidence that there is a significant risk that 'good' status or another relevant objective will not be achieved unless appropriate improvement action is taken.

Where SEPA does not have high confidence, it may nevertheless consider and support low cost actions that all parties are willing to take where such actions will increase the likelihood that 'good' status, or other relevant objectives, will be achieved.

In so far as it is practicable and relevant, SEPA will also ensure that the improvements it requires of operators of controlled activities:

• are sufficient to prevent deterioration of status being caused in the future by any fluctuations in environmental quality that cannot readily be controlled;
• provide capacity for future development where development is currently constrained because of the lack of environmental capacity; and
• stop or reverse trends resulting from the cumulative impacts of controlled activities before capacity is exceeded.

Where a water body is found to be at risk, SEPA will consider what practical measures could be taken to address that risk. In many cases, it may be possible to adopt relatively low cost measures to reduce the impact of an activity. In other cases, more significant actions may be needed to address the risk. An example of how SEPA will apply the proposed standards follows this section.

SEPA will not seek improvements to the status of water bodies that would be technically infeasible or disproportionately expensive.

Actions to improve the status of the water environment are more likely to be proportionate when one or more of the following circumstances apply:

• an environmental standard is clearly failed over a wide area;
• the actions required to make the improvements have low cost or comprise established good practice measures;
• there is evidence of significant biological impacts; or
• the improvements will contribute to achieving a number of environmental, social or economic objectives.

Taking action to protect the water environment

We expect SEPA to use its powers to prevent controlled activities from causing a failure of an environmental standard. Exceptions to this may be allowed in specific circumstances provided for in the Directive, as outlined in our paper on objective-setting.

Unless these specific circumstances are met, SEPA will refuse authorisations for applications to undertake controlled activities that are likely to cause a failure of an environmental standard.

SEPA will normally be expected to grant authorisation for activities that do not cause an environmental standard to be failed, provided that granting such authorisations would not:

• cause fluctuations in environmental quality that are difficult to control, and so risk subsequent deteriorations in status;
• compromise the achievement of other environmental objectives, including those for Protected Areas (such as Natura 2000 sites or areas identified to protect drinking water sources);
• unnecessarily constrain future development through inefficient use of environmental capacity; or
• have significant adverse effects on the interests of other users of the water environment.

In granting authorisations, SEPA will impose the conditions it considers necessary to ensure new activities do not cause a failure of an environmental standard, though exceptions may be made in specific circumstances, as explained above. These steps are important to avoid risking deterioration of status of any water body, or jeopardising the future achievement of the environmental objectives for any water body. SEPA will take any necessary and appropriate action to encourage and enforce compliance with authorisation conditions, in order to prevent environmental standards being failed. SEPA will also use its powers to prevent unauthorised activities from causing environmental standards to be failed.

SEPA will develop rules for applying the standards to water bodies. This will require SEPA to define the appropriate scale over which a standard would have to be failed in a water body for the failure to affect the status of the water body.