MEMORANDUM FROM THE SCOTTISH ENVIRONMENT
PROTECTION AGENCY (SEPA)
WATER ABSTRACTION IN SCOTLAND
1. FORMAL CONTROLS
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. SIGNIFICANCE OF
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
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
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. CONSULTATIONS ON
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. DATABASE PROVIDED
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