6. CRITERIA FOR ASSESSING LEGISLATION FOR DESIGNATION
In order to be a candidate for designation, a piece of legislation must contain functions or powers of the Scottish Ministers and/ or SEPA which are capable of being exercised in a manner which impacts directly on the water environment in Scotland.
As with the designation process for responsible authorities, we intend to specify whole enactments. This approach will avoid the unintentional exclusion of any functions or powers of Ministers and/ or SEPA which are relevant to the water environment. It will also allow the section 2 WEWS Act duties to apply to any relevant amendments that are made to these specified pieces of legislation over time.
We have therefore examined a wide range of legislation to identify whether they are appropriate for designation because they contain functions which have a direct bearing on the water environment, through the decisions of Ministers, policy-makers or regulators. Further discussion on the specific legislation proposed for such designation is set out in section 7.
Ministers will primarily look to WEWS and CAR to deliver Scotland's objectives for the water environment. However there are other significant legislative regimes which could have an impact on the delivery of our objectives for Scotland's water environment, and we consider it desirable to place an explicit obligation on Ministers and SEPA to secure compliance with the Directive when exercising functions under these other regimes. By promoting early consideration of the water environment and river basin management planning objectives, we will facilitate an integrated approach and help to ensure that the best environmental option is identified at the outset (for example, the location of a proposed development or the design of sustainable flood management schemes). This approach is in line with our policy approach to the designation of responsible authorities, thus ensuring that all bodies concerned with activities having an impact on the water environment are working together to deliver our WFD goals from the outset.
Conversely, there may be circumstances where Ministers or SEPA have functions as a statutory consultee, providing specialist advice on matters which could have an impact on the water environment. In such circumstances, there is a clear expectation that the advice of any statutory consultee should incorporate the requirements of the Directive. However only the ultimate decision-maker has the ability to secure compliance with the requirements of the Directive. Consequently, we do not consider that it would be appropriate to designate Ministers' or SEPA's statutory consultee functions in this way.
Similarly we have adopted the same approach to Ministers' appeal functions. As it is the primary regulator to secure compliance with the Directive, we do not propose to designate Ministers' appeal functions.