Legislative background
The Water Framework Directive is a piece of EU legislation
which, inter alia, is meant to improve the ecological
status of water bodies across the EU which have been damaged by human activity. It was
transposed into Scots Law with the Water Environment
and Water Services (Scotland) Act 2003. The implementation
of the legislation is led by the Scottish Environment
Protection Agency (SEPA).
The WFD is concerned with a wide range of impacts
on the freshwater environment, including some
impacts which have not previously been subject
to much regulation in Scotland, for example river
engineering works and water abstraction. Remedial
works to improve the ecological status of rivers
are to be agreed in a succession of river basin management plans which will be produced every six years.
The first Scotland River Basin Management Plan was published on 22 December 2009
for implementation during the period 2012 – 2015.
As a means of delivering these plans, impacts
like engineering and water abstraction are now
controlled by The Water Environment (Controlled Activities) (Scotland) Regulations
(2005), hereafter referred to as 'CAR'. These regulations require water abstractors
to have a licence from SEPA and, in time, SEPA
can review these licences and can limit what
can be abstracted for the benefit of the environment.
It is through this route that it is intended that impacts like the
over abstraction of the River Garry may be
remedied.
However, it will be the case that some activities
will be derogated from the strictest provisions
of the Directive, concerning water bodies
which are deemed to be “Heavily Modified”.
Such water bodies will not be
expected to be restored to Good Ecological Status
but rather something called Good
Ecological Potential. This basically means that all practical mitigation should be carried out without significantly impacting on the use to which the water is put.
According to the website of the European Commission the "key examples" to be derogated "are flood protection and essential drinking water supply....so long as all appropriate mitigation measures are taken".
However, the European Commission continues;
"less clear-cut cases are navigation and power generation, where the activity is open to alternative approaches (transport can be switched to land, other means of power generation can be used)."
Power generation is to be
"subject to three tests: that the alternatives are technically impossible, that they are prohibitively expensive, or that they produce a worse overall environmental result."
FOR ALL THAT FOLLOWS, THESE POINTS ARE CRUCIAL
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The Water Framework Directive now obliges EU member states to try and find ways of improving overabstracted rivers. Crucially, this can include demanding a reduction in power generation if alternative forms of generation are available which are not prohibitively expensive or do not cause greater environmental damage.
European Commission Information
Scottish Government Information
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