3. What is 'damage' for the purposes of the Regulations
Chapter 3 provides guidance on what 'damage' is and how it is to be assessed.
3.1 The assessment of whether damage is covered by the Regulations is likely to require a certain amount of data collection. Similar data may be needed later for assessing remediation options, for example concerning the extent, severity and likely duration of damage. It may therefore be advisable to collect and document data is such a way that it can be used subsequently for these purposes.
Damage to protected species and natural habitats
3.2 The Regulations only apply to specific species and habitats and only when the damage is above a certain threshold.
3.3 The Regulations apply to EU species or habitats. Damage must be severe enough to have a significant adverse effect on the species or habitat reaching or maintaining their favourable conservation status in the UK (in this guidance: a "significant conservation status effect").
Significant conservation status effects
3.4 The term 'significant conservation status effect' is used in this guidance for where there is 'a significant adverse effect on reaching or maintaining the favourable conservation status of protected species and natural habitats'. 'Protected species and natural habitats' refers to specific species and habitats protected under the Habitats Directive and the Birds Directive; Annex 2 provides more detail.
3.5 The concept of conservation status is derived from the Habitats Directive. For habitats, conservation status is:
the sum of the influences acting on a natural habitat and its typical species that may affect its long-term natural distribution, structure and functions as well as the long-term survival of its typical species.
Its conservation status is favourable if:
- the natural range and areas covered within that natural range are stable or increasing;
- the specific structure and functions which are necessary for its long-term maintenance exist and are likely to continue to exist for the foreseeable future; and
- the conservation status of its typical species is favourable.
3.6 For species, conservation status is:
the sum of the influences acting on the species concerned that may affect the long-term distribution and abundance of its populations.
Its conservation status is favourable if:
- the population dynamics data on the species concerned indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitats;
- the natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future, and
- there is, and will probably continue to be, a sufficiently large habitat to maintain its populations on a long-term basis.
3.7 The significance of an effect has to be assessed by reference to:
- the conservation status at the time of the damage,
- the services they provide
- their capacity for natural regeneration .
3.8 The significance must also be determined by measurable data. Such data include:
- the number of individuals, their density or the area covered;
- the role of the particular individuals or of the damaged area in relation to the species or to the habitat conservation, and the rarity of the species or habitat assessed at the relevant level whether local, regional or Community-wide;
- the capacity of the species for propagation, its viability or the capacity of the habitat for natural regeneration;
- the capacity of the species or habitat to recover within a short time of the damage being caused to a condition which leads to its state at the time of the damage or better without any intervention other than increased protection measures.
Is there a significant conservation status effect?
3.9 The Regulations' requirements do not form the basis of a measurable test, rather they will require a qualitative judgement supported by a range of sound information on both the damage incurred and contextual information on the species or habitats affected. This guidance sets out the approach to making such judgements.
3.10 A 'significant' effect is more than simply a measurable one. As a guide it is helpful to consider that 'significant' has a meaning, comparable to its use in environmental impact legislation, which relates to the importance of the effect rather than its magnitude. For the purpose of the Regulations, a significant conservation status effect is one which is of importance in terms of it making it significantly harder to maintain the favourable conservation status of a species or habitat, or making it significantly harder to reach favourable conservation status.
3.11 The Regulations allow for conservation status to be defined at the Scottish or UK levels, European Community level or at the level of the natural range of the species. The relevant biogeographic area may be an appropriate level in some cases, for example for assessing impacts on migratory bird species. However, in many cases information will be available to enable assessment only at the UK level.
3.12 The first step will be to identify whether EU species and habitats are affected. Annex 2 provides a list of the relevant species and habitats. If they are affected the next stage is to collect both information about the nature and scale of damage and contextual information about the species or habitat to be able to make a judgement on whether the damage is significant in terms of the conservation status of the species or habitat. Judgements should be based on the same parameters EU Member States use for reporting status to the Commission 3, 4, 5. Where the Scottish conservation status is unknown this does not mean that no assessment is possible and therefore that the damage does not meet the threshold, but rather that a judgement must be made on the basis of information available.
3.13 The parameters for assessing the conservation status of habitats are:
- range
- area covered by habitat type within range
- structure and function, and
- future prospects
3.14 The parameters for species are:
- range
- population
- habitat for the species and
- future prospects
3.15 The central question is whether the effect makes it significantly harder either to reach or maintain the Favourable Conservation Status of relevant species and habitat. A judgement is required for each European habitat and species affected and for each of the four parameters described above for assessing conservation status. In the context of reporting to the Commission under the Habitats Directive, judgements are made for each parameter as to whether they are favourable, unfavourable bad, unfavourable inadequate or unknown. The overall judgement of status is then determined by the worst evaluation. Likewise, under the Regulations, if the effect is judged significant in terms of any of the parameters the overall judgement should be that there is a significant conservation status effect.
3.16 The capacity for the natural regeneration of the affected species or habitat should be taken into account for all the parameters. Consideration should be given to whether recovery is possible, if possible whether human intervention is necessary and the timescale for recovery. If, for example, recovery is possible without human intervention within a short period, there is unlikely to be a significant conservation status effect.
Judgements on range (habitats or species)
3.17 The range of a habitat or species is a measurement of its distribution throughout the UK. It can be considered as the outer limits of the overall area in which a habitat or species is found. In making judgements on whether an effect is significant in terms of the range, consideration should be given to whether and by how much the damage reduces the range. Favourable reference values for range are considered the range required to ensure the long-term viability of the habitat or species. Where favourable reference values are provided and the damage has a significant bearing on whether favourable reference values are reached or maintained, the judgement should be that there is a significant conservation status effect. Where there is no favourable reference values the latest information on range (including trends) should be considered.
3.18 If an activity damages a habitat or species that is widely distributed throughout the UK or relevant area, such as a woodland or grassland, it is unlikely to impact on its range. However, if a habitat with a much narrower distribution is damaged, such as a limestone pavement, the likelihood of damage is much greater. Similarly, damage at the most northern or southern edge of the habitat's range will be more likely to have an impact on the habitat's range.
Judgements on area (habitats)
3.19 The area of a habitat is a measurement of its current surface area, and any historical trends in this parameter. Judgements on the impact of damage on area should take into account the extent of damage relative to the overall area. The favourable reference value is considered as the minimum area required to ensure the long term viability of the habitat type. Where favourable reference values are provided and the damage has a significant bearing on whether favourable reference values are reached or maintained, the judgement should be that there is a significant conservation status effect. Where there is no favourable reference values the latest information on area (including trends) should be considered.
Judgements on structure and function (habitats)
3.20 This is a judgement of the effect on the quality of the habitat type. It is relevant to consider the severity of the impact in the same manner as severity was assessed under the impacts on site integrity. Judgements should take into account the extent to which the damage will reduce the quality of the habitat or the functions or services it performs for other environmental resources or the public at the location affected and beyond. They should also take account of the role of the damaged habitat in relation to the overall habitat or species on which it depends and the rarity of the species of habitat assessed at the relevant level whether local, regional or Community-wide.
Judgements on future prospects (habitats and species)
3.21 This is a judgement of the effect on the conditions needed to reach or maintain the favourable conservation status of species or habitats in the long term, taking into account current or foreseeable threats. Effects for example on a species' potential for genetic exchange or on the capacity of the species for propagation may be relevant.
Judgements on population (species)
3.22 Population is the number and density of individuals present in the UK or relevant area. Judgements should take account of the scale of loss, damage or deterioration of populations relative to the overall population. Consideration should also be given to the role of the damaged individuals to the overall population and to the effect on services provided by the species. Where favourable reference values are provided and the damage has a significant bearing on whether favourable reference values are reached or maintained, the judgement should be that there is a significant conservation status effect. Where there is no favourable reference values the latest information on population (including trends) should be considered.
Judgements on habitats for species
3.23 This is a judgement of whether damage to the habitat of a species is likely to lead to a significant adverse effect on reaching or maintaining the conservation status of the species. Judgements should be based on the extent and severity of damage to the habitat and the likelihood of significant indirect effects on the other parameters for species (range, population and future prospects).
Damage to water
3.24 Water damage refers principally to those adverse impacts on the water environment which are significant enough to cause deterioration of the status of a body of water, or deterioration of the status of any quality element for the classification of bodies of surface water or any parameter for the classification of bodies of groundwater. (Regulation 3(2)(b)).
3.25 Such adverse effects constitute 'damage' if:
i) they occurred after the coming into force of the Regulations;
ii) they were caused by one or more of the activities listed in Schedule 2; and
iii) Paragraph 7 of Article 4 of Directive 2000/60/ EC (the Water Framework Directive) is not applicable in relation to the deterioration.
What if an activity is authorised to cause damage?
3.26 Damage does not constitute water damage for the purposes of the Environmental Liability Directive if Paragraph 7 of Article 4 of the Water Framework Directive applies.
3.27 Paragraph 7 of Article 4 of the Water Framework Directive provides a Member State defence where there is a failure to achieve either that Directive's objective of preventing deterioration of status or aiming to achieve good status. The defence provision allows Member States to grant authorisation for proposals whose benefits to human health, human safety or sustainable development outweigh the benefits of protecting the water environment; or which are otherwise of overriding public importance.
3.28 European guidance on the application of Paragraph 7 can be found at: http://circa.europa.eu/Public/irc/env/wfd/library?l=/framework_directive/thematic_documents/environmental_objectives/article_circapdf/_EN_1.0_&a=d
Does the Directive apply to all surface water and groundwater?
3.29 Damage only constitutes water damage for the purposes of the Environmental Liability Directive if a body of surface water or a body of groundwater is adversely affected.
3.30 Damage occurs both directly to a water body and indirectly from another source.
3.31 Bodies of surface water and bodies of groundwater refer to water bodies identified under Article 5 and Annex II of the Water Framework Directive. Bodies of surface water include river water bodies; freshwater loch water bodies; estuarine water bodies and coastal water bodies. Coastal water bodies cover coastal waters up to 3 miles seaward from the baseline from which Scottish territorial waters are measured.
3.32 Bodies of surface water include artificial water bodies, such as canals, and heavily modified water bodies. Artificial water bodies are bodies of surface water that have been constructed where no water body previously existed. Heavily modified water bodies are bodies of surface water whose physical characteristics have been so substantially altered that they are no longer consistent with the achievement of good ecological status.
3.33 Further information on the identification of bodies of water can be found at:
http://www.sepa.org.uk/wfd/character/index.htm
http://circa.europa.eu/Public/irc/env/wfd/library?l=/framework_directive/guidance_documents/guidancesnos2sidentifica/_EN_1.0_&a=d
http://circa.europa.eu/Public/irc/env/wfd/library?l=/framework_directive/guidance_documents/guidancesnos4sheavilysmo/_EN_1.0_&a=d
What do we mean by 'adverse effects significant enough to cause deterioration of status'?
3.34 For each of the quality elements and parameters comprising its status classification schemes (see below), the Water Framework Directive provides definitions from which the values ( e.g. environmental quality standards) for the quality elements or parameters in each of the status classes are derived. Strictly speaking, quality elements and parameters do not have a 'status' class. They only have a value which is consistent with one or other of the different status classes. Any change in the value of a quality element or parameter such that its new value is consistent with the values corresponding to a lower status class than was the case prior to the adverse effects. For convenience, this can be thought of as a deterioration of the 'status' of the quality element or parameter.
3.35 Suppose a water body is at good ecological status. An activity listed in Schedule 2 causes pollution of the water body. The water quality deteriorates such that it is only consistent with moderate status rather than good status. The adverse effect has caused deterioration of the overall ecological status of the water body.
3.36 Suppose another water body would be at good ecological status but for a dam preventing fish migration. Because of the dam, the water body's status is currently poor. An activity listed in Schedule 2 causes pollution of the water body. Water quality deteriorates such that it is now consistent with moderate status rather than good status. The pollution is therefore significant enough on its own to cause deterioration of status even though the overall poor status of the water body - as dictated by the impact of the dam - has not changed. Water quality has deteriorated to the extent that, in the absence of the effect of the dam, deterioration of ecological status would have occurred.
How is the status of a body of water defined?
3.37 The status of bodies of water refers to:
i) the ecological status of a body of surface water other than a body of surface water designated as the heavily modified or artificial under the Water Framework Directive;
ii) the ecological potential of a body of surface water designated as heavily modified or artificial under that Directive;
iii) the surface water chemical status of a body of surface water;
iv) the groundwater chemical status of a body of groundwater; or
v) the quantitative status of a body of groundwater
Ecological status
3.38 The 'ecological status' of a surface water body is a measure of the degree to which the structure and function of the body's aquatic ecosystem have been altered as a result of human activity.
3.39 There are five ecological status classes; 'high', 'good', 'moderate', 'poor' and 'bad'. Annex V to the Water Framework Directive provides a series of definitions describing the 'values' expected for different groups of aquatic plants and animals and for different chemicals and physicochemical factors ( e.g. temperature; pH) in the different ecological status classes.
3.40 For example, high ecological status means that there are no or only very minor alterations to the different plant and animal groups. Bad ecological status means that there are severe alterations to the plant and animal communities such that large portions of the communities found at high ecological status are absent.
3.41 The different groups of plants and animals and the different chemicals and physicochemical factors are called 'quality elements'. The overall ecological status of a water body is determined by the value of the quality element most altered by human activity.
3.42 The technical work to develop methods and schemes for classifying the ecological status of water bodies is coordinated by the UK Technical Advisory Group on the Water Framework Directive ( UKTAG). UKTAG is a partnership of the UK environment and conservation agencies.
3.43 UKTAG has provided recommendations to the UK Government and the devolved administrations on classifying the ecological status of bodies of surface water. It has also made recommendations on the values ( i.e. environmental standards) for the chemical and physicochemical quality elements. Subject to public consultation, Ministers intend to use UKTAG's recommendations as the basis for transposing the Directive's status classification schemes, including its ecological status classification schemes.
3.44 'Ecological potential' describes the degree to which the potential ecological quality of a water body's aquatic ecosystem has been realised, given the body's artificial or heavily modified characteristics. It only applies to water bodies that have been designated as heavily modified or artificial.
3.45 If the maximum potential has been realised, the status of the water body is described as 'maximum ecological potential'. There are five classes of ecological potential; 'maximum, 'good', 'moderate, 'poor' and 'bad'. Good ecological potential describes a condition in which the ecological quality is only slightly less than the maximum that could be achieved.
3.46 Annex V to the Water Framework Directive provides a series of definitions describing the values for different plant, animal, chemical and physicochemical quality elements that are consistent with the different ecological potential classes.
3.47 The values ( i.e. environmental standards) for the chemical and physicochemical quality elements at maximum and good ecological potential are the same as those for high and good ecological status.
3.48 UKTAG is expected to make recommendations to the UK Government and devolved administrations on classifying heavily modified water bodies early in 2008. European Guidance of relevance to the classification of heavily modified and artificial water bodies is available at:
http://circa.europa.eu/Public/irc/env/wfd/library?l=/framework_directive/guidance_documents/guidancesnos4sheavilysmo/_EN_1.0_&a=d
http://circa.europa.eu/Public/irc/env/wfd/library?l=/framework_directive/thematic_documents/hydromorphology/technical_reportpdf/_EN_1.0_&a=d
Surface water chemical status
3.49 There are two surface water chemical status classes; 'good surface water chemical status' and 'failing to achieve good surface water chemical status'.
3.50 Good surface water chemical status is the chemical status achieved by a body of surface water in which concentrations of 'priority substances' and certain other dangerous substances do not exceed the environmental quality standards established for them.
3.51 A list of priority substances has been established by Decision 2455/2001/ EC. Political agreement on environmental quality standards for the priority substances has been reached by the Council of Ministers. After agreement with the European Parliament, the standards are expected to be included in a new directive later in 2008. The 'other dangerous substances' are substances identified as List I dangerous substances under Directive 76/464/ EEC but which have not been included in the list of priority substances.
3.52 Further information on the classification of surface water chemical status, including a list of the relevant substances, is included in UKTAG's recommendations on surface water status classification. These recommendations are available at: http://www.wfduk.org/UKCLASSPUB/LibraryPublicDocs/sw_status_classification
Groundwater chemical status
3.53 Groundwater chemical status is principally a measure of the impact of pollutants in groundwater on associated surface waters; terrestrial ecosystems directly dependent on groundwater; and human uses of groundwater, such as abstraction for human consumption.
3.54 There are two status classes, 'good groundwater chemical status' and 'poor groundwater chemical status'. The parameters for determining groundwater chemical status are concentration of pollutants and conductivity. The values and conditions required of the parameters at good status are defined under Annex V to the Water Framework Directive and under Directive 2006/118/ EC (the new Groundwater Directive).
3.55 UKTAG has provided recommendations to the UK Government and the devolved administrations on classifying groundwater chemical status. Subject to public consultation, Ministers intend to use these recommendations as the basis for transposing the Directive's s classification scheme. UKTAG's recommendations are available at: http://www.wfduk.org/stakeholder_reviews/stakeholder_review_1-2007/LibraryPublicDocs/final_gw_sr2007
Groundwater quantitative status
3.56 Groundwater quantitative status is principally a measure of the impact of groundwater abstraction on associated surface waters and on terrestrial ecosystems directly dependent on groundwater.
3.57 UKTAG has provided recommendations to the UK Government and the devolved administrations on classifying groundwater quantitative status. Subject to public consultation, Ministers intend to use these recommendations as the basis for transposing the Directive's s classification scheme. UKTAG's recommendations are available at: http://www.wfduk.org/stakeholder_reviews/stakeholder_review_1-2007/LibraryPublicDocs/final_gw_sr2007
What sort of pollution incidents might result in water damage?
3.58 As confirmed in European guidance 6, short-term, transient adverse effects from which the affected water body recovers without the need for remediation measures are not significant enough to cause deterioration of status.
3.59 Pollution incidents often result in acute but short-lived adverse effects. This is because the pollutants are quickly flushed away and diluted. Subsequent re-colonisation of the affected waters by aquatic plants and animals from unaffected areas can then be quite rapid.
3.60 However, even where the adverse effects resulting from a pollution incident are not transient, their geographical extent may be too limited to affect the status of a water body. UKTAG's recommendations on spatial scale considerations in assessing the status of surface water bodies are available at: http://www.wfduk.org/UKCLASSPUB/LibraryPublicDocs/sw_status_classification
3.61 It will not always be clear at the time of an incident, or immediately afterwards, whether the incident will lead to water damage. However, the preventative action, including the action to immediately control and contain the pollution, which is required under existing legislation for the protection of the water environment from pollution is the same as that which would apply should the incident fall within the scope of the Environmental Liability Directive.
Land damage
3.62 Regulation 3(2)(c) defines damage to land as:
any land contamination that creates a significant risk of human health being adversely affected…
3.63 This is a risk-based definition. It is considered that the definition includes cases where the adverse effects in question are being caused at the time of the introduction of the contaminants, as well as cases where such effects are possible but may not be evident for many years.
3.64 In determining whether land damage has occurred, consideration must be given both to whether there is:
i) contamination of land by substances 7, preparations 8, organisms or micro-organisms and to whether that contamination:
ii) results in a significant risk of adverse effects on human health
Causes of risks of adverse effects
3.65 The risk of adverse effects on human health may arise:
i) from a substance in the form it was introduced onto, into or under the land or from any substance that is produced from the breakdown or reaction of that substance;
ii) from the action of any substance referred to in point (a) in combination with any other substance or group of substances, whether or not that other substance or group of substances is also on, in or under the land;
(a) from the organism originally introduced on, in or under the land, the organism's progeny or any part of the organism or its progeny;
(b) after a substance referred to in point (a) or an organism or part thereof referred to in point (c) has moved or spread on, in or under land other than the land on, in or under which the original introduction occurred;
(c) whilst a substance referred to in point (a) or an organism or part thereof referred to in point (c) is in, on or under the land or after the substance, organism or part thereof has moved from the land into air or water;
(d) from the toxicological properties of any substance referred to in point (a); combination of substances referred to in point (b); or organism or part thereof referred to in point (c);
(e) as a result of a substance's or combination of substances' flammability, explosiveness or propensity to asphyxiate.
Assessment of the significance of a risk
3.66 There is a significant risk of adverse effects on human health if:
a) there is potential for a pathway to exist by which a human may take in, or otherwise be exposed to, or affected by, a substance or organism that has potential to cause adverse effects on human health; and
b) in the opinion of the competent authority under the Regulations, the amount of a substance, organism or part of an organism:
(i) that a human might take in; or
(ii) to which a human might otherwise be exposed
(iii) would represent an unacceptable exposure, assessed on the basis of relevant information on the toxicological properties of the substance, organism or part of an organism and the susceptibility of those likely to be exposed; or
c) in the opinion of the competent authority under the Regulations, the probability, or frequency, of occurrence of adverse health effects resulting from a substance's, or combination of substances', flammability, explosiveness or propensity to asphyxiate is unacceptable.
3.67 For the purposes of sub-paragraph (a) of paragraph 3:
(a) a "pathway" means one or more routes or means by, or through, which a human is being, or could be, exposed to, or affected by, a substance or organism; and
(b) a pathway may be identified:
(i) by direct observation; or
(ii) on the basis of a reasonable assessment of the general scientific knowledge about the nature of a particular substance or organism, the characteristics and function of the land in question; and the current use of that land.
3.68 For the purposes of sub-paragraph (b) of paragraph 3:
(a) the assessment of whether an intake or other exposure is unacceptable should take into account:
(i) the likely total intake of, or exposure to, a substance, organism or part of an organism from all sources including the intake or other exposure resulting from the introduction of a substance or organism into, onto or under land;
(ii) the relative contribution resulting from the introduction of a substance or organism into, onto or under land to the likely aggregate intake of, or exposure to, a substance, organism or part of an organism;
(iii) the duration of the exposure to a substance, organism or part of an organism stemming from the land in question; and
(iv) the susceptibility of those humans likely to be exposed.
(b) the question of whether an intake or other exposure is unacceptable is independent of the number of people who might experience or be affected by that intake or exposure;
(c) "toxicological properties" should be taken to include carcinogenic, mutagenic, teratogenic, pathogenic, endocrine-disrupting and other similar properties; and
(d) references to "relevant information" mean information which is:
(i) scientifically-based;
(ii) authoritative;
(iii) relevant to the assessment of risks arising from the presence of the substance or organism in, on or under the land; and
(iv) appropriate to the determination of the risk of adverse effects on human health.
3.69 For the purposes of sub-paragraph (c) of paragraph 3:
(a) the assessment of whether the probability, or frequency, of occurrence of adverse health effects resulting from a substance's flammability, explosiveness or propensity to asphyxiate is unacceptable should take into account the level of risk which have been judged unacceptable in other similar contexts.
Consideration of land use
3.70 When assessing the risk of adverse effects on human health, account should be taken of the current use of the land and the implications of that use for the potential pathways by which a human or humans may be exposed to, or otherwise affected by, a substance, organism or part of an organism that has potential to cause adverse effects on human health.
3.71 For the purposes of this guidance, the "current use" of the land is to be ascertained on the basis of the land use regulations, or other relevant regulations, in force, if any, when the damage occurred.
Responding to requests for action
3.72 A third party may submit to the competent authority any observations that land damage has occurred, or that there is an imminent threat of such damage, and request that action be taken to address that damage.
3.73 Where such requests for action are made and accompanied by the relevant information and data supporting the observations, the competent authority will determine whether the environmental damage, or the imminent threat of such damage, has been demonstrated in a plausible manner.
3.74 In undertaking the staged risk assessment outlined above, the competent authority will consult the relevant health agencies. Further guidance on how a request for action will be considered is set out in Dealing with assertions of human health risks or effects from environmental exposures: A systematic approach published by the Scottish Centre for Infection and Environmental Health 9 (2000).