Discharges to Controlled Waters

• Water Environment (Controlled Activities) (Scotland) Regulations 2005

COPA Part II was the main legislation for controlling water pollution in Scotland until April 2006. However all point source discharges, abstractions, impoundments and engineering work now require an authorisation under the Water Environment (Controlled Activities) (Scotland) Regulations 2005. This piece of legislation is widely known as the ‘Controlled Activities Regulations’ (CAR). All previous consents under COPA must be transferred to the new regime. SEPA is responsible for authorising activities and for enforcement of the Regulations.

The Regulations introduce an updated consent system for point source discharges with potential to cause pollution to wetlands, groundwater, lochs, rivers, estuaries and coastal waters. The Regulations also control the consent for disposal onto land of listed substances and other matter with the potential to cause pollution of groundwater.

SEPA has published a practical guide to the CAR Regulations including the three levels of authorisation (licence / registration / general binding rules) and any charges that may be applicable (see Guidance).

• Water Resources Act 1991

Discharge to controlled waters, In England and Wales is only permitted with the consent of the Environment Agency under the Water Resources Act (WRA) 1991. The WRA states that 'no person shall cause or knowingly permit any poisonous, noxious or toxic material or solid waste to enter controlled water'. In addition to unauthorised discharges direct into controlled waters, companies are held liable for an unauthorised discharge to controlled waters occurring via surface water drains, or by discharge onto the land. An aim of the Act is to ensure that the polluter pays the cost of the consequences of their discharges.

The WRA entered into force in 1991 and replaced the corresponding sections of the Water Act 1989 for England and Wales. The WRA sets out the responsibilities of the Environment Agency in relation to water pollution, resource management, flood defence, fisheries and in some areas, navigation.

• The Water Resources Act 1991 (Amendment) (England and Wales) Regulations 2009

The amendment to the regulations extends controls over diffuse pollution.

• The Water Framework Directive (2000/60/EC) (pdf)

The Water Framework Directive (WFD) is the most substantial piece of EC water legislation to date. It requires all inland and coastal waters to reach ‘good status’ by 2015. It is aiming to achieve this by establishing a UK river basin district approach within which demanding environmental objectives will be set, including ecological targets for surface waters.

The instruments below are the enabling legislation for the EU Water Framework Directive in Scotland, and England and Wales respectively. They are largely concerned with the development of River Basin Management Plans and enabling new controls on water abstraction, engineering works, point source pollution and diffuse pollution from urban areas and farms (see Pending Legislation).

• Water Environment and Water Services (Scotland) Act 2003
• The Water Environment (Water Framework Directive) (England and Wales) Regulations 2003

These instruments are the enabling legislation for the EU Water Framework Directive (2000/60/EC) in Scotland, and England and Wales respectively. They are largely concerned with the development of River Basin Management Plans and enable new controls on water abstraction, engineering works, point source pollution and diffuse pollution from urban areas and farms. See Pending Legislation.

The Directive repeals older EC Water Directives and incorporates the remaining existing water directives on Bathing Water, Nitrates and Urban Waste Water Treatment.

• The Groundwater (England and Wales) Regulations 2009

These Regulations replace the Groundwater Regulations 1998. They implement Article 6 of Directive 2006/118/EC which seeks to protect groundwater against pollution and deterioration.

Part 3 of the Regulations creates an offence of discharge of a hazardous substance or non-hazardous pollutant without a permit, and provision as to how a permit for this is applied for. The Environmental Agency has developed a list of substances that it considers to be hazardous; the regulations outline the requirements to obtain a permit. Hazardous substances typically include pesticides, solvents, hydrocarbons, mercury, cadmium and cyanide. Non-hazardous pollutants are less dangerous, and can be discharged to groundwater under a permit, but must not cause pollution. Examples include sewage, trade effluent and most wastes. The regulations include a comprehensive list of such substances.

NB: In Scotland the requirements of the Groundwater Regulations have been included in the Water Environment (Controlled Activities) (Scotland) Regulations 2005 - also known as 'Controlled Activities Regulations' or 'CAR'.

There is currently a consultation on the Guidance provided for the Groundwater Regs 2009.

• The Water Act 2003
• Water Environment and Water Services (Scotland) Act 2003

Both acts will be phased in over the next few years and are heralded as major steps forward in the sustainable management of water resources. The above acts aim to prevent or limit the input of pollutants to groundwater and reverse any significant and sustained upward trends in the concentration of pollutants in groundwater.

• The Water Environment (Groundwater and Priority Substances) (Scotland) Regulations 2009

These Regulations amend the Act and the Water Environment (Controlled Activities) (Scotland) Regulations 2005. The Regulations transpose into Scots law two daughter Directives of the WFD; the Groundwater Directive 2006 (2006/118/EC) and the Priority Substances Directive 2008 (2008/105/EC).

The Groundwater Directive 2006 sets criteria for the chemical status of groundwater bodies and for identifying upward pollution trends that may need to be reversed. The Priority Substances Directive 2008 requires the definition of environmental standards for the defined priority substances and certain other pollutants applying to surface waters as well as to ground water. SEPA must identify hazardous substances giving rise to concern.

1. The Environmental Permitting (England and Wales) Regulations 2010

The Environmental Permitting ( England and Wales) Regulations 2010 came into force on 6 April 2010. They provide a consolidated environmental permitting system in England and Wales. They extend the environmental permit system to cover water discharge consents, groundwater authorisations and radioactive substances regulation. The intention is to enable businesses and regulators to gradually adopt a one permit, one-regulator, one-site regime. This will reduce costs and cut red tape whilst continuing to protect the environment. This phase is called ‘Environmental Permitting Phase 2 (EPP2); this affects businesses that:

1. Discharge to rivers, lakes, estuaries or coastal waters etc
2. Discharge substances to groundwater
3. Use or disposal of radioactive substances or wastes

Organisations holding a current water discharge consent, groundwater authorisation or radioactive substances authorisation do not have to re-apply. Existing consents or authorisations automatically become environmental permits under the new regulations.

• Urban Waste Water Treatment (Scotland) Regulations 1994
• Urban Waste Water Treatment (England and Wales) Regulations 1994

The UWWT regulations implement the Urban Waste Water Treatment Directive (91/271/EEC) and extend the conditions on the discharge of untreated biodegradable waste to receiving water for plants representing 4,000 population equivalent.

• Control of Pollution (Application, Appeals and Registers) Regulations 1996

Outlines the procedures for consents in England and Wales under the WRA 1991

Guidance notes for Scotland are available from the SEPA website.

The Water Environment (Controlled Activities) (Scotland) Regulations 2005 - A Practical Guide (pdf)

Additional information for England and Wales is available from the DEFRA website.

Guidance on assessing risks to groundwater from landfills is now available for consultation. See consultation.

The Environment Agency is examining improvements in Groundwater Risk Assessments which is now available for consultation.

The discharge of any non IPPC emission to controlled waters requires a Consent to Discharge from the appropriate regulatory agency:

• the Scottish Environmental Protection Agency (SEPA) in Scotland; and
• the Environment Agency (EA) in England and Wales.

If the discharge is to be made into a "Main River" body, permission is also required.

Any liquid discharges which are liable to be contaminated should be discharged to sewer, or discussed with the relevant Agency with a view to authorisation to discharge to controlled waters. Above certain minimum limits, discharges of the following types may require authorisation:

• drainage from roofs and hardstandings;
• drainage from fuel delivery areas;
• drainage from raw material delivery areas;
• drainage from material storage areas;
• direct discharge of treated wastewater;
• water from external washing and cleaning activities;
• sewage or septic tank drainage from industrial or commercial premises.

More information on Discharges to Sewer is available here.

Application for a Consent to Discharge must be made in writing to the regulatory authority (SEPA/EA). Completed forms must be submitted to local SEPA/EA office for approval.

Application forms for discharges to controlled water in Scotland can be obtained from the SEPA website. Guidance and application forms for consent to discharge to controlled water in in England and Wales is available from the Environment Agency website.

The following information will be required in any consent application to SEPA or the EA:

• address of property from which effluent is to be discharged;
• details of applicant and agent;
• grid reference of site;
• name of local council area;
• description of discharge, (e.g. treated sewage effluent, storm sewage, surface water, trade effluent);
• type of outlet, including construction material;
• type of controlled water outlet will discharge to;
• detailed information on composition of different types of effluent, including area drained for surface water, flow of domestic sewage, pump rates for overflows and temperature of trade effluent.

SEPA and the EA are required to make a decision on an application within four months of receiving the application.

Controlled waters are defined as virtually all freshwater including relevant territorial waters (extending 3 miles seawards from baseline), coastal waters (water inland of baseline), inland waters, surface water, public supply reservoirs and groundwater.

The consent is likely to detail the allowable discharge rate(s) and volumes(s), and the periods during which discharges can be made.

In addition, the consent is likely to include discharge standards for; suspended solids, biochemical oxygen demand (BOD), pH, temperature and concentration of hydrocarbons.

Monitoring and sampling is undertaken by the operator of a facility and the requirements are case specific as outlined in each individual consent. They are however likely to include the following:

• Facilities for taking samples;
• Meters for measuring or recording the volume and rates of discharges and apparatus for determining the nature, composition and temperature of the discharges; and
• Procedures for recording of sampling and monitoring data (i.e. maintenance of log book which must contain at least the previous 4 years records).

Exact reporting requirements will be specified in each consent including timescales for forwarding information to SEPA or the EA (e.g. monthly averages, monthly maximum concentrations and levels of exceedance).

In addition the Log book must be kept available for inspection at all times.

Pollution Incidents

It is an offence to cause pollution of controlled water, deliberately or accidentally, and the agencies (SEPA/EA) can prosecute offenders.

It is also an offence to contravene a consent to discharge condition and the agencies (SEPA/EA) can serve and Enforcement Notice on the holder of the consent. It is further offence to fail to comply with an enforcement notice.

Failure to comply with a consent to discharge is an offence subject to a fine not exceeding £20,000 and/or imprisonment not exceeding three months at the Magistrates Court and an unlimited fine or prison sentence of up to two years at the Crown Court.

The EU Water Framework Directive is enabled in the UK through the Water Environment and Water Services (Scotland) Act 2003 and the Water Environment (Water Framework Directive) (England and Wales) Regulations 2003.

Work is now ongoing with respect to detailed implementation in the UK. New proposed control regimes include:

• New controls on abstraction and impoundment to deal with environmental impacts caused by modification of dams and other structures;
• Controls on building, engineering and other works that may impact aquatic habitats.

Control regimes must be in place by December 2009 and operational by December 2012. However, it is anticipated that new measures will be phased in over a longer time period, allowing sufficient time for planning to meet the conditions by 2012. New regimes are expected to be phased in over two years from April 2005. This will include the transfer of existing consents.

Further information on ongoing work towards implementation can be found on the SEPA website and the DEFRA website.

The second phase of the 'Environmental Permitting' Programme (EPP2) is now being consulted on. EPP2 aims to reduce costs for operators and the regulator by cutting unnecessary red tape, while continuing to protect the environment and human health. The proposal is to create a common system of risk-based environmental permitting including:

• Certain discharges to surface waters;
• The disposal of specific substances into groundwater, and;
• Permits for radioactive materials and for disposal of radioactive waste.

See DEFRA consultation on Environmental Permitting Programme.

Directive 2008 / 105 / EC has been published dealing with environmental quality standards in the field of water policy. It establishes quality standards for priority substances and certain other pollutants as provided for in Article 16 of Directive 2000/60/EC, The aim is to achieve good surface water chemical status in accordance with the provisions and objectives of Article 4 of that Directive. This Directive updates a wide variety of previous Directives. For full details see: Water Policy and Repealed Directives.

SEPA has issued Consultation Guidance about 'Control of Priority and Dangerous Substances and Specific Pollutants in the Water Environment'. This relates to the cessation of use or phasing out of priority hazardous substances under the Water Framework Directive (2000/60/EC).

DEFRA has confirmed that water discharge consents, abstraction licences and groundwater authorisations under the WFD are to be regulated under the streamlined environmental permitting regime, which came into force on 6 April 2008. 

The Environmental Liability Directive was adopted in 2004 and was required to be implemented by 30 April 2007.  The Directive enforces strict liability for prevention and remediation of environmental damage to ‘biodiversity’, water and land from specified activities and remediation of environmental damage for all other activities through fault or negligence. 

The Environmental Liability Directive is now implemented in England and Wales. In Scotland The Environmental Liability (Scotland) Regulations 2009 came into force on 24th June 2009.