The Water Environment (Controlled Activities) (Scotland) Regulations 2011

Publication Date:January 01, 2011

2011No. 209

ENVIRONMENTAL PROTECTION

WATER

The Water Environment (Controlled Activities) (Scotland) Regulations 2011

15thMarch2011

31stMarch2011

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 20, 36(2) and (3) of, and schedule 2 to, the Water Environment and Water Services (Scotland) Act 2003( 1) ("the Act") and section2(2) of the European Communities Act 1972( 2) and of all other powers enabling them to do so.

In accordance with subsection(1) of section21 of the Act, they have consulted with the persons specified in that subsection.

In accordance with subsection(2) of that section, they have published a draft of the proposed general binding rules and have had regard to the representations received about the proposed rules in accordance with subsection(4) of that section.

The Scottish Ministers have complied with the other requirements of section21 of the Act.

In accordance with section36(6) of the Act, a draft of this instrument has been laid before and approved by resolution of the Scottish Parliament.

As amended by the correction slip issued in June 2011

PART I

General

Citation and commencement

1.-(1)These Regulations may be cited as the Water Environment (Controlled Activities) (Scotland) Regulations 2011.

(2)These Regulations come into force on 31st March 2011.

Interpretation

2.-(1)In these Regulations, unless the context otherwise requires-

"the Act" means the Water Environment and Water Services (Scotland) Act 2003;

"an application" means an application made in accordance with regulation 11 or, if regulation18(1) applies, an application made in accordance with regulation 18(4);

"authorisation" means an authorisation under regulation 6, 7 or 8;

"category 1 or 2 responder" means a person or body listed in Schedule 1 to the Civil Contingencies Act 2004 (category1 and 2 responders)( 3);

"controlled activity" is any activity referred to in regulation 3(1);

"the Directive" means Directive 2000/60/ECof the European Parliament and of the Council establishing a framework for Community action in the field of water policy as amended( 4);

"the EIA Directive" means Council Directive 85/337/EECon the assessment of the effects of certain public and private projects on the environment( 5);

"the Groundwater Directive 1980" means Council Directive 80/68/EECon the protection of groundwater against pollution caused by certain dangerous substances( 6);

"the Groundwater Directive 2006" means Directive 2006/118/ECof the European Parliament and of the Council on the protection of groundwater against pollution and deterioration( 7);

"general binding rules" has the meaning given in regulation 6;

"hazardous substance" means a substance identified in accordance with Schedule 2;

"land" includes land covered by water, and any works, plant or fixed machinery, building or other structure in, on or over land;

"operator" means, in relation to a controlled activity, any person who carries on or has control over the carrying on of that activity;

"person" includes a body corporate, limited liability partnership and Scottish partnership;

"pollutant" means any substance or heat liable to cause pollution, including those listed in Schedule 1, and for the purposes of this definition "substance" includes bacteria and other pathogens;

"premises" includes any land, vehicle, vessel or mobile plant;

"the Priority Substances Directive" means Directive 2008/105/ECof the European Parliament and of the Council on environmental quality standards in the field of water policy( 8);

"the register" means the register maintained by SEPA under regulation 37;

"registration" means an authorisation granted under regulation 7;

"responsible authority" has the meaning given to it by section 2 of the Act (the general duties);

"responsible person" means the person who is responsible for securing compliance with the terms of a water use licence and has been identified as such by SEPA in accordance with regulation 8(6), and includes-

(a) if the responsible person has been adjudged bankrupt or the estate of the responsible person is sequestrated, the trustee in bankruptcy;(b) if an executor has been appointed to the responsible person's estate, the executor;(c) if the responsible person is a company, and-(i) a receiver has been appointed, the receiver;(ii) an administrator has been appointed, the administrator;(iii) a liquidator has been appointed, the liquidator;

"SEPA" means the Scottish Environment Protection Agency; and

"water use licence" means an authorisation granted under regulation 8.

(2)A reference in these Regulations to anything done in writing or produced in written form includes a reference to an electronic communication, as defined in section 15 of the Electronic Communications Act 2000 (general interpretation)( 9) which has been recorded in written form and is capable of being reproduced in that form.

Application of the Regulations

3.-(1)Subject to paragraph (2), these Regulations apply to-

(a) activities liable to cause pollution of the water environment;(b) abstraction of water from the water environment;(c) construction, alteration or operation of impounding works in surface water or wetlands;(d) carrying out building or engineering works, or works other than those referred to in paragraph (c)-(i) in inland water (other than groundwater) or wetlands; or(ii) in the vicinity of inland water or wetlands and having or likely to have a significant adverse impact on the water environment;(e) artificial recharge or augmentation of groundwater;(f) the direct or indirect discharge, and any activity likely to cause a direct or indirect discharge, into groundwater of any hazardous substance or other pollutant; and(g) any other activity which directly or indirectly has or is likely to have a significant adverse impact on the water environment.

(2)These Regulations do not apply to any activity for which a licence is needed under Part II of the Food and Environment Protection Act 1985( 10) or Part 4 of the Marine Licensing (Scotland) Act 2010( 11).

Prohibition

4.No person shall carry on, or shall cause or permit others to carry on, any controlled activity except insofar as it is-

(a) authorised under these Regulations; and(b) carried on in accordance with that authorisation.

Duty to use water efficiently

5.It is the duty of any person carrying out a controlled activity authorised under these Regulations to take all reasonable steps to secure efficient and sustainable water use.

PART II

Authorisations

General binding rules

6.-(1)A controlled activity specified in column 1 of Part 1 of Schedule 3 is authorised under these Regulations if it is carried out in accordance with the rules of general application ("general binding rules") specified for that activity in column 2 of that Schedule.

(2)Part 2 of that Schedule has effect for the purposes of the interpretation of the Schedule.

Registration

7.-(1)Subject to Part 2 of Schedule 10, SEPA may authorise the carrying on of a controlled activity in accordance with the provisions of this regulation.

(2)SEPA may, in authorising such an activity, impose such conditions as it considers necessary or expedient for the purposes of protection of the water environment.

(3)An authorisation given under this regulation ("registration") must be given by registering the particulars specified in paragraph (4) in the register maintained under regulation 37.

(4)The particulars are-

(a) the activity authorised;(b) any conditions imposed under paragraph (2); and(c) the date of authorisation.

Water use licence

8.-(1)Subject to Part 2 of Schedule 10, SEPA may authorise the carrying on of a controlled activity under this regulation subject to the conditions provided for in this regulation.

(2)SEPA must impose such conditions as it considers necessary or expedient for the purposes of protection of the water environment.

(3)A condition imposed under this regulation may require an applicant to carry out works or do other things in relation to land not within the ownership or control of that applicant.

(4)If a condition is imposed in accordance with paragraph (3), it is the responsibility of the applicant to obtain all consents necessary to allow the condition to be complied with.

(5)When considering whether to grant an authorisation under paragraph (1), and when imposing conditions in respect of a licence under this regulation, SEPA-

(a) must have regard to all controlled activities being carried on or likely to be carried on in the area of the water environment likely to be affected by the controlled activity to which the application relates;(b) may have regard to any agreement reached between different persons concerning controlled activities carried on in the relevant area of the water environment.

(6)SEPA may only grant an authorisation under this regulation if-

(a) a person has been identified who will be responsible for securing compliance with the authorisation and the conditions specified in it;(b) it is satisfied that that person will secure such compliance; and(c) it is a condition of that authorisation that that person secures such compliance.

(7)An authorisation granted under this regulation ("water use licence") must specify the date on which it takes effect.

Groundwater Directive

9.-(1)When consid ering an application in respect of a controlled activity which-

(a) is made on or after 25thNovember 2009 but before 22nd December 2013; and(b) falls within the provisions of the Groundwater Directive 1980,

SEPA must impose such conditions as it considers necessary to ensure compliance with the Groundwater Directive 1980 as read with the Groundwater Directive 2006.

(2)Subject to paragraph (1), when considering an application in respect of a controlled activity which falls within the provisions of the Groundwater Directive 2006, SEPA must impose such conditions as it considers necessary to ensure compliance with the Groundwater Directive...

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