The Water Environment (River Basin Management Planning: Further Provision) (Scotland) Regulations 2013

Made: 12th November 2013

Laid before the Scottish Parliament: 14th November 2013

Coming into force: 22nd December 2013

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 5(5), 7, 8(5), 9(4) to (6), 10(2)(b), 19(1), 23(1) and 36(2) and (3) of the Water Environment and Water Services (Scotland) Act 2003 (“the Act”) and section 2(2) of the European Communities Act 1972 and all other powers enabling them to do so.

In accordance with section 23(3) of the Act, the Scottish Ministers have consulted such persons as they think fit.

PART 1 — CITATION, COMMENCEMENT AND GENERAL INTERPRETATION

Citation and commencement

1

These Regulations may be cited as the Water Environment (River Basin Management Planning: Further Provision) (Scotland) Regulations 2013 and come into force on 22nd December 2013.

Interpretation

2

• (1) In these Regulations—

• “the Act” means the Water Environment and Water Services (Scotland) Act 2003;

• “artificial or heavily modified body of surface water” means a body of surface water designated as artificial or heavily modified in accordance with regulation 4;

• “assimilated law” has the meaning given by section 6(7) of the European Union (Withdrawal) Act 2018;

• “body of surface water” has the meaning given in section 28 of the Act;

• “environmental objective” means an objective set under section 9(1)(a)(i) of the Act;

• “the Groundwater Directive” means Directive 2006/118/EC of the European Parliament and of the Council on the protection of groundwater against pollution and deterioration, as amended by Commission Directive 2014/80/EU,

• “groundwater hazardous substance” means a substance identified in accordance with regulation 24A,

• “pollutant” means any substance or heat liable to cause pollution to the water environment, including those listed in the schedule,

• “the Priority Substances Directive” means Directive 2008/105/EC of the European Parliament and of the Council on environmental quality standards in the field of water policy, amending and subsequently repealing Council Directives 82/176/EEC, 83/513/EEC, 84/156/EEC, 84/491/EEC, 86/280/EEC and amending Directive 2000/60/EC of the European Parliament and of the Council, as amended by Directive 2013/39/EU of the European Parliament and of the Council,

• “programme of measures” means a programme prepared under section 9(1)(b) of the Act;

• ...

• “river basin district” means an area designated as such by order under section 4(1) of the Act;

• “river basin management plan” means such a plan approved by the Scottish Ministers under section 13 of the Act (including that section as applied by section 14(4));

• “SEPA” means the Scottish Environment Protection Agency;

• “substance” includes any chemical element and its compounds (including bacteria and other pathogens),

• “water environment” has the meaning given in section 3 of the Act; and

• “the Water Framework Directive” means Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for Community action in the field of water policy as last amended by Commission Directive 2014/101/EU.

• (2) Unless the context otherwise requires, any other word or expression which is used in both these Regulations and the Water Framework Directive (and which is not otherwise defined in these Regulations or in Part 1 of the Act) has the meaning given in that Directive.

• (3) For the purposes of these Regulations—

• (a) the Water Framework Directive is to be interpreted in accordance with Part 1 (the Directive) of schedule 5 (interpretation of Directives for the purposes of Part 1) of the Act,

• (b) the Groundwater Directive is to be interpreted in accordance with Part 2 (the Groundwater Directive) of schedule 5 of the Act,

• (c) the Priority Substances Directive is to be interpreted in accordance with Part 3 (the Priority Substances Directive) of schedule 5 of the Act.

• (4) For the purposes of paragraph (3), schedule 5 of the Act is to be read as if—

• (a) references to “the Directive” are to “the Water Framework Directive”,

• (b) references to “Part 1 of this Act” are to “these Regulations”.

PART 2 — RIVER BASIN MANAGEMENT PLANNING

Setting of environmental objectives

3

• (1) The objectives set under section 9(1)(a)(i) (environmental objectives) of the Act must, subject to the application of regulations 5 to 10 and 17—

• (a) for surface water—

• (i) prevent deterioration of the status of each body of surface water;

• (ii) protect, enhance and restore each body of surface water (other than an artificial or heavily modified body of surface water) with the aim of achieving good surface water status by 22nd December 2015;

• (iii) protect and enhance each artificial or heavily modified body of surface water with the aim of achieving good ecological potential and good surface water chemical status by 22nd December 2015; and

• (iv) aim to progressively reduce pollution from priority substances and aim to cease or phase out emissions, discharges and losses of priority hazardous substances;

• (b) for groundwater—

• (i) prevent the deterioration of the status of each body of groundwater;

• (ii) prevent or limit the input of pollutants into groundwater ;

• (iii) enhance and restore each body of groundwater, and ensure a balance between abstraction and recharge of groundwater, with the aim of achieving good groundwater status by 22nd December 2015; and

• (iv) reverse any significant and sustained upward trend in the concentration of any pollutant resulting from the impact of human activity in order to progressively reduce pollution of groundwater; and

• (c) in addition, for each area and body of water falling within section 7(4) (protected areas) of the Act, achieve compliance with any standards and objectives required by or under any assimilated law described in that section by 22nd December 2015, unless otherwise specified in the assimilated law by virtue of which the area or body of water is protected.

• (2) Where two or more of the objectives set pursuant to paragraph (1) apply to the same body of water, to the extent that any of those objectives conflict, the most stringent is to apply.

Designation as artificial or heavily modified bodies of surface water

4

• (1) SEPA may designate a body of surface water as artificial or heavily modified when—

• (a) the changes to the hydromorphological characteristics of the body of surface water, which would be necessary for achieving good ecological status, would have significant adverse effects on—

• (i) the wider environment;

• (ii) navigation, including port facilities, or recreation;

• (iii) activities for the purposes of which water is stored, such as drinking water supply, power generation or irrigation;

• (iv) water regulation, flood protection, land drainage; or

• (v) other equally important sustainable human development activities; and

• (b) the beneficial objectives served by the artificial or modified characteristics of the body of surface water cannot, for reasons of technical feasibility or disproportionate costs, be achieved by other means which are a significantly better environmental option.

• (2) Where SEPA designates a body of surface water as artificial or heavily modified, it must—

• (a) mention the designation, and the reasons for it, in the river basin management plan for the river basin district within which that body is located (or the next update of it); and

• (b) review the designation when reviewing and updating the river basin management plan.

Environmental objectives: phased achievement

5

The deadline by which an environmental objective set pursuant to regulation 3(1) must be achieved may be extended for the purposes of the phased achievement of the environmental objectives for a body of water (including the objectives for areas falling within section 7(4)(d) (areas designated in respect of water status) of the Act for the protection of habitats or species), if the following conditions are met—

• (a) no further deterioration occurs in the status of the affected body of water;

• (b) SEPA determines that all necessary improvements in the status of the body of water cannot reasonably be achieved within the timescales set out in regulation 3(1) for at least one of the following reasons—

• (i) the scale of improvements required can only be achieved in phases exceeding the timescale, for reasons of technical feasibility;

• (ii) completing the improvements within the timescale would be disproportionately expensive;

• (iii) natural conditions do not allow timely improvement in the status of the body of water;

• (c) extensions are limited to a maximum of two updates of the first river basin management plan (except in cases where the natural conditions are such that the environmental objectives cannot be achieved within that period);

• (d) the river basin management plan (or the next update of it) sets out—

• (i) the extension of the deadline, and explains the reasons for it;

• (ii) a summary of the measures to be applied to achieve the environmental objectives set pursuant to regulation 3(1) which are envisaged as necessary to bring the body of water progressively to the required status by the extended deadline; and

• (iii) the reasons for any significant delay in making these measures operational, and the expected timetable for their implementation; and

• (e) a review of the implementation of the measures referred to in paragraph (d) and a summary of any additional measures is included in updates of the river basin management plan.

Environmental objectives: human activity or natural condition

6

Less stringent environmental objectives may be set under section 9(1)(a)(i) of the Act for a specific body of water instead of those required pursuant to regulation 3(1) when that body of water is so affected by human activity or its natural condition is such that the achievement of the environmental objectives required pursuant to regulation 3(1) would be infeasible or disproportionately expensive, and the following conditions are met—

• (a) the environmental and socio-economic needs served by such human activity cannot be achieved by other means which are a significantly better environmental option not entailing disproportionate costs;

• (b) where the specific body of water is a body of surface water, the highest ecological and chemical status possible is achieved, given impacts that could not reasonably have been avoided due to the nature of the human activity or pollution;

• (c) where the specific body of water is a body of groundwater, the least possible changes to good groundwater status, given impacts that could not reasonably have been avoided due to the nature of the human activity or pollution;

• (d) no further deterioration occurs in the status of the affected body of water; and

• (e) the establishment of less stringent environmental objectives, and the reasons for it, are set out in the river basin management plan (or the next update of it) and those objectives are reviewed every 6 years.

Environmental objectives: natural cause or force majeure

7

For the purposes of these Regulations and Part 1 of the Act (in particular section 9(7)(a) (environmental objectives required to comply with Article 4 and 7 of the Water Framework Directive)), a temporary deterioration in the status of a body of water is not a breach of the environmental objectives set pursuant to regulation 3(1) if the deterioration is the result of circumstances of natural cause or force majeure which are exceptional or could not reasonably have been foreseen, or the result of circumstances due to accidents which could not reasonably have been foreseen, and the following conditions are met—

• (a) all practicable steps are taken—

• (i) to prevent further deterioration in the status of the body of water; and

• (ii) so as not to compromise the achievement of the environmental objectives for any body of water not affected by the circumstances;

• (b) the conditions under which circumstances that are exceptional or that could not reasonably have been foreseen may be declared, including the adoption of the appropriate factors, are stated in the river basin management plan (or the next update of it);

• (c) the measures to be taken under such exceptional circumstances are included in the programme of measures to be applied to the body of water and will not compromise the recovery of the quality of that body of water once the circumstances are over;

• (d) the effects of the circumstances that are exceptional or that could not reasonably have been foreseen are reviewed annually and, subject to the reasons set out in regulation 5(b) all practicable measures are taken with the aim of restoring the body of water to its status prior to the effects of the circumstances as soon as reasonably practicable; and

• (e) a summary of the effects of the circumstances and of such measures taken or to be taken in accordance with paragraphs (a) and (d) are included in the next update of the river basin management plan.

Environmental objectives: modifications to physical characteristics

8

For the purposes of these Regulations and Part 1 of the Act (in particular section 9(7)(a)), a failure to achieve good groundwater status, good ecological status or, where relevant, good ecological potential, or to prevent deterioration in the status of a body of surface water or a body of groundwater is not a breach of the environmental objectives set pursuant to regulation 3(1) if the failure is the result of new modifications to the physical characteristics of the body of surface water or alterations to the level of the body of groundwater, and the following conditions are met—

• (a) all practicable steps are taken to mitigate the adverse impact on the status of the body of water;

• (b) the reasons for the modifications or alterations are of overriding public interest and/or the benefits to the environment and to society of achieving the environmental objectives are outweighed by the benefits of the new modifications or alterations to human health, to the maintenance of human safety, or to sustainable development;

• (c) the beneficial objectives served by the modifications or alterations of the water body cannot for reasons of technical feasibility or disproportionate costs, be achieved by other means, which are a significantly better environmental option; and

• (d) the reasons for the modifications or alterations are set out and explained in the river basin management plan (or the next update of it) and the environmental objectives are reviewed every 6 years.

Environmental objectives: sustainable human development activities

9

For the purposes of these Regulations and Part 1 of the Act (in particular section 9(7)(a)), a failure to prevent deterioration from high status to good status of a body of surface water is not a breach of the environmental objectives set pursuant to regulation 3(1) if the failure is the result of new sustainable human development activities, and the following conditions are met—

• (a) all practicable steps are taken to mitigate the adverse impact on the status of the body of water;

• (b) the activities are of overriding public interest and/or the benefits to the environment and to society of achieving the environmental objectives are outweighed by the benefits of the activities to human health, to the maintenance of human safety, or to sustainable development;

• (c) the beneficial objectives served by those activities cannot for reasons of technical feasibility or disproportionate costs, be achieved by other means, which are a significantly better environmental option; and

• (d) the nature of the activities are set out and explained in the river basin management plan (or the next update of it) and the environmental objectives are reviewed every 6 years.

Environmental objectives: application of regulations 4 to 9

10

Regulations 4 to 9 must not be applied in a way that—

• (a) permanently excludes or compromises the achievement of the environmental objectives set in relation to any other body of water within the same river basin district; or

• (b) is inconsistent with the implementation of any assimilated law relating to the environment.

Waters used for the abstraction of drinking water

11

For each body of water identified under section 6(1) (bodies of water used for the abstraction of drinking water) of the Act, the programme of measures for the river basin district within which the body of water is located must ensure the necessary protection of the body of water with the aim of avoiding deterioration in the quality of that body of water in order to reduce the level of purification treatment required in the production of drinking water.

Content of monitoring programme

12

• (1) Each monitoring programme prepared under section 8(2) (monitoring programme) of the Act must—

• (a) enable a coherent and comprehensive overview of the status of the water environment within each river basin district;

• (b) for surface water—

• (i) cover the volume and level or rate of flow to the extent relevant to ecological status (or, where relevant, ecological potential) and chemical status;