Select Committee on Scottish Affairs Minutes of Evidence




  1.1  Unlike England and Wales, Scotland currently has no comprehensive abstraction control system for ensuring the sustainable and equitable use of water resources. In Scotland as in England, land owners have the right in common law to abstract water from watercourses on or under their land. Any individual abstractor can have recourse to the courts to protect their supply from derogation by other users. However, abstractors in Scotland do not enjoy the public protection from derogation afforded by the comprehensive licencing regime administered by The Environment Agency in England and Wales.

  1.2  SEPA is responsible for controlling pollution to water, air and land, and for regulating the management of waste and radioactive substances. Protection of the environment is a devolved matter. SEPA is responsible to the Scottish Ministers and through them, to the Scottish Parliament. With respect to controls over water quantity, SEPA has only very limited powers in relation to abstraction despite the strong relationship between water quantity and quality.

  1.3  Most rivers in Scotland have sufficient water throughout the year. However, there are local problems associated with over-abstraction of water. SEPA has consistently stressed that selective abstraction controls are required in Scotland. There may be up to 1,000 km of dry rivers during the summer as a consequence of hydro-power, drinking water abstractions, agricultural irrigation and industrial abstractions. SEPA considers that licences should be required for those abstractions which have the potential to cause environmental damage.

  1.4  The following table sets out the principal statutory controls over abstraction currently applying in Scotland, and indicates SEPA's role with respect to these controls.
Control SEPA's Involvement
(a)  Natural Heritage Scotland Act 1991
(i)   Powers to control abstraction of water for irrigation
The Act makes provisions for control order areas to be established by the Scottish Ministers. Any abstractions from inland surface and groundwaters for irrigation within these control order areas must be licensed. SEPA must apply to the Scottish Ministers for a control order. Once a control order is made, SEPA can limit or suspend the operation of licences if there are water shortages in the area and lift or relax restrictions if there is an abundance of water.
There are only two small areas within Scotland that are classified as control order areas. These are the catchments of the West Peffer Burn in East Lothian and the other is the Ordie Burn in Perthshire.
(ii)   Powers to make provisions to meet water deficiences
The Act empowers Scottish Ministers to make drought orders to meet serious deficiencies of water supplies, existing or threatened, where these are due to an exceptional shortage of rain. Applicant for a drought order must consult SEPA.
(b)  Water (Scotland) Act 1980
Water Orders for public water supply
The Act confers on Water Authorities the ability to acquire rights to abstract water from any stream or other source, but only where the Scottish Ministers have made an order approving it. The Water Authority must apply to the Scottish Ministers for the order which may contain any extra provisions the Ministers think necessary.
Both Scottish Ministers and the Water Authorities are also placed under a duty to promote the conservation and effective use of Scotland's water resources.
Applicant for a water order must notify SEPA.
(c)  Electricity Act 1989
Abstraction and diversion of water for hydro electricity schemes
The Scottish Ministers may authorise, through a Water Order, the right for a licensed person to abstract and divert the water necessary for operating a hydro scheme. The order may also specify the quantity of compensation water to be provided when the water level or flow will be adversely affected by abstraction. The Scottish Ministers must consult SEPA on any scheme that will require an environmental impact assessment due to the effects it might have on the environment.
(d)  Town & Country Planning (Scotland) Act 1997
Hydro-schemes under 1 megawatt
Small hydro-power schemes require planning permission from the local authority under the planning legislation. The local authority must consult relevant statutory consultees, which include SEPA.
(e)  Environment Act 1995
Duty (under S34(1)(b)) to conserve so far as practicable the water resources of Scotland. Duty applies to SEPA in carrying out its functions.


  2.1  The WFD was proposed by the European Commission in 1997, and negotiations on the text were concluded in June this year. The Directive is intended to provide a coordinated mechanism to protect Europe's groundwater, rivers, lakes, estuaries and coastal waters.

  2.2  With respect to abstractions, the WFD will require Scotland to establish:

    "controls over the abstraction of fresh surface water and groundwater, including a register or registers of water abstractions and a requirement of prior authorisation for abstraction. These controls must be periodically reviewed and, where necessary, updated."

    "Member States can exempt from these controls, abstractions which have no significant impact on water status."

  2.3  SEPA welcomes the approach of the WFD because it believes that it will help Scotland direct resources to prevent and mitigate real environmental damage. When abstractions are not threatening the status of the environment, no controls need be applied.

  2.4  SEPA considers that a general notification requirement for abstractions is required. This will ensure that SEPA has the necessary information to protect existing users when making decisions on pollution control or abstraction licensing.


  3.1  The introduction of an abstraction control system for the purposes of environmental protection in Scotland, and the timing of any consultations thereon, is a matter for Scottish Ministers. The WFD does require Member States to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive by November 2003 at the latest.

  3.2  In September, SEPA held a small meeting with representatives of some of the industries involved in water abstraction in Scotland. The purpose was to explain what the WFD requires, and to listen to the concerns of industry in order to assist SEPA in developing its advice to the Scottish Ministers. In addition, SEPA will continue to answer to the best of its ability any inquiries it receives from any sector.


  4.1  SEPA jointly developed the Scottish database with BGS in order to (i) help identify boreholes which might be suitable for monitoring purposes; and (ii) increase SEPA's understanding of groundwater abstraction pressures, and hence risks to water quality through loss of dilution. In practice SEPA has found that the database is relatively unreliable in terms of locations, operators and abstraction rate details.

Scottish Environment Protection Agency

November 2000

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