Scottish Government

1. Introduction

1.1 What is this consultation about?

1.1.1 Clean beaches and bathing waters are a very important asset to Scotland. Providing a valuable source of recreation to many different users, even during wet summers like this year's, they help promote a healthy lifestyle, while also contributing to the Scottish economy through their tourism potential. It is therefore important that we do our best to protect them. With the revised Bathing Water Directive (2006/7/ EC) ¹ introducing higher quality standards, we now have an opportunity to enhance our bathing waters further.

1.1.2 In March 2006, we announced in our strategy, "Better bathing waters: meeting the challenges of the revised Bathing Water Directive in Scotland" ², our intention to consult on draft Regulations through which we propose to transpose the revised Bathing Water Directive into Scots law. This document sets out how we believe the Regulations best meet the requirements of the Directive, explaining Regulation by Regulation our proposals. A draft of the Regulations is contained at Annex A. The Regulations' provisions come into force from 2008 onwards.

1.1.3 Some duties of the Directive are already covered under existing legislation, and we do not propose to duplicate these provisions in the Regulations. These provisions are identified in the consultation paper.

1.1.4 We are also using the consultation as a platform to actively seek comments on our proposals for meeting some of the Directive's requirements that will not be met by legislation alone. This includes issues which we touched upon in the strategy and which we will need to consider in the run-up to the complete implementation of the Directive, which must be accomplished by 2015.

1.1.5 We recognise that there will be benefits and costs associated with our proposals for transposing the Directive. These are explored in more detail in the Partial Regulatory Impact Assessment attached at Annex B.

1.1.6 We welcome your views both on the draft Regulations and on any other aspects of the consultation, and would encourage you to make your opinions known.

1.2 Responding to this consultation paper

We are inviting written responses to this consultation paper by 6 February 2008. Prompt responses would be appreciated as the finalised draft Regulations must be laid before the Scottish Parliament by early March, for the Regulations to be made by 24 March, as required by the Directive.

Please send your response to:

waterdivision@scotland.gsi.gov.uk

or by post to:

Or by fax to 0131 244 0259

If you have any queries please contact Iain Morrison on 0131 244 0396.

1.2.1 We would be grateful if you could clearly indicate in your response which questions or parts of the consultation paper you are responding to as this will aid our analysis of the responses received.

1.2.2 This consultation, and all other Scottish Government consultation exercises, can be viewed online on the consultation web pages of the Scottish Government website at http://www.scotland.gov.uk/consultations or through www.scotland.gov.uk/bathingwaters . You can telephone Freephone 0800 77 1234 to find out where your nearest public internet access point is.

1.2.3 The Scottish Government now has an email alert system for consultations (SEconsult: http://www.scotland.gov.uk/consultations/seconsult.aspx ). This system allows stakeholder individuals and organisations to register and receive a weekly email containing details of all new consultations (including web links). SEconsult complements, but in no way replaces Scottish Government distribution lists, and is designed to allow stakeholders to keep up to date with all Government consultation activity, and therefore be alerted at the earliest opportunity to those of most interest. We would encourage you to register.

Handling your response

1.2.4 IMPORTANT! We need to know how you wish your response to be handled and, in particular, whether you are happy for your response to be made public. In order for us to know, you need to complete and return the Respondent Information Form enclosed in this consultation paper as this will ensure that we treat your response appropriately. If you ask for your response not to be published we will regard it as confidential, and we will treat it accordingly. If we do not receive a completed Respondent Information Form, then we must issue a further copy for your completion along with our acknowledgement letter. If this second copy is not completed, we are under obligation to treat your response as confidential. Confidential responses will be published without the respondent's name or contact details made public.

1.2.5 All respondents should be aware that the Scottish Government are subject to the provisions of the Freedom of Information (Scotland) Act 2002 and would therefore have to consider any request made to it under the Act for information relating to responses made to this consultation exercise.

Next steps in the process

1.2.6 Where respondents have given permission for their response to be made public (see the attached Respondent Information Form), these will be made available to the public in the Scottish Government Library by 6 March 2008. We will check all responses where agreement to publish has been given for any potentially defamatory material before logging them in the library or placing them on the website. You can make arrangements to view responses by contacting the SG Library on 0131 244 4552. Responses can be copied and sent to you, but a charge may be made for this service.

What happens next?

1.2.7 Following the closing date, all responses will be analysed and considered along with any other available evidence to help us finalise the draft Regulations. We aim to issue a report on this consultation process around the time the Regulations are made.

Comments and complaints

1.2.8 If you have any comments about how this consultation exercise has been conducted, please send them to Iain Morrison at the contact details given above.

Summary of consultation questions

Q1 - Do you agree with how we propose to identify the bathing water operator? If not, who should be responsible instead? (Regulation 2)

Q2 - Your views are welcome on how we propose to establish the initial list of bathing waters under the revised Directive. (Regulation 3)

Q3 - Should the Panel be retained to assist Ministers in compiling the annual list after 2008? Could SEPA undertake this role instead, through its work on the WFD? Have you any views on how we ensure beach operators and local authorities have an appropriate say in these matters? (Regulation 3)

Q4 - Do you agree that there should be scope to set longer or shorter bathing seasons, dependent on where in Scotland bathing waters are located? What lengths should they be? Is the current bathing season (1 June - 15 September) suitable for most sites in Scotland? If you were to change it, how and why would you do it? (Regulation 3)

Q5 - With the Bathing Water Review Panel we have instigated a process for identifying bathing waters that encourages public participation, particularly through the use of the internet and engagement with local community and interest groups. Do you have any views on how we can further public involvement in this area? (Regulation 5)

Q6 - Do you agree that SEPA is best placed to establish the bathing water profiles? Is there any other information that you would like to see included in the profile, in addition to that required by the Directive? (Regulation 6)

Q7 - Do you agree that SEPA should be allowed to set the maximum number of samples that it intends to take at each bathing water, as it does at present? (Regulation 7)

Q8 - Do you have views on SEPA's use of the Directive's provision for flexibility in their sampling? Should there be any restrictions on its usage? (Regulation 7)

Q9 - SEPA's predictive abilities have been suitably tried and tested over the past few bathing seasons. Therefore we propose that they be allowed to discount samples where they predict or are aware of short-term pollution and appropriate warnings have been given. Do you have any views on this approach? (Regulation 7)

Q10 - We propose that to fulfil the requirement to provide public information, bathing water operators will be required to publicise this information through the use of signs. Do you agree that beach operators should be responsible for installing signage? (Regulation 8)

Q11 - What languages do you think would be appropriate for inclusion on SEPA's website? Should this relate to official EU languages, native languages of Scotland (Gaelic, Scots) or those used by ethnic minorities? (Regulation 8)

Q12 - What new technology would you suggest SEPA should adopt to provide bathing water information? (Regulation 8)

Q13 - Do you agree that this is an appropriate approach to improving poor bathing waters? If not, what would you suggest? (Regulation 11)

Q14 - Do you agree that local authorities and SEPA should determine whether an event is abnormal or exceptional? If not, who would be better placed to undertake this role? (Regulation 13)

Q15 - We believe that local authorities would be best placed to undertake the relevant roles to protect public health during abnormal events/exceptional circumstances. Do you agree? (Regulation 13)

Q16 - We believe local authorities would be best placed to undertake the relevant roles to protect public health during cyanobacteria proliferations. Do you agree? (Regulation 14)

Q17 - We believe local authorities would be best placed to undertake the relevant roles to protect public health during macro-algae and marine phytoplankton proliferations. Do you agree? (Regulation 15)

Q18 - We propose that the bathing water operator be responsible for organising remedial or restorative measures at the bathing water in terms of waste. Do you agree? (Regulation 16)

Q19 - Do you agree with this proposal, or should the party that discovers the health risk ensure that the other parties are kept informed? (Regulation 18)

Q20 - Do you agree with our proposals for notifying those with an interest of intended management measures? Should a single notice also apply in terms of macro-algae as well as for waste? (Regulation 19)