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Publication - Consultation Paper

Delivering Scotland's River Basin Management Plans: The Water Environment (Controlled Activities)(Scotland) Regulations 2011 - Proposed Amendments

Published: 8 Dec 2016
Part of:
Environment and climate change
ISBN:
9781786526557

A consultation inviting responses to proposed changes to The Water Environment (Controlled Activities) (Scotland) Regulations 2011.

51 page PDF

477.6kB

51 page PDF

477.6kB

Contents
Delivering Scotland's River Basin Management Plans: The Water Environment (Controlled Activities)(Scotland) Regulations 2011 - Proposed Amendments
5. Diffuse Pollution General Binding Rules 18-24 - Proposed Amendments

51 page PDF

477.6kB

5. Diffuse Pollution General Binding Rules 18-24 - Proposed Amendments

Rural diffuse pollution has been identified as the largest polluting pressure on Scotland's water environment. General binding rules 18-24 were introduced to CAR in 2008, with the aim of reducing diffuse pollution.

In implementing the first RBMPs,14 priority catchments were identified where the water environment was at greatest risk from diffuse pollution. SEPA has been working closely with land managers in these catchments to encourage compliance with the diffuse pollution GBRs. This approach involves a major campaign of awareness-raising, farm visits, guidance, and training.

The work has been well received by landowners, and through the Diffuse Pollution Management Advisory Group ( DPMAG) a good working relationship between SEPA, the Scottish Government, land managers and other relevant bodies has been established. Following the success of this approach in implementing the first RBMP, it has been carried through into the second RBMP (2015-2021) with the number of priority catchments increased to 57. SEPA will continue to work closely with land managers in these catchments to deliver compliance with the GBRs.

The work in the priority catchments has helped identify where the diffuse pollution rules can be further improved and clarified. The proposals include amendment to or clarification regarding:

  • distances from watercourses
  • fertiliser application
  • storage of liquid inorganic fertiliser
  • protection of private water supplies
  • reducing contaminated runoff
  • reducing soil erosion
  • bankside pesticide use
  • pour-on sheep treatments

The proposed amendments for each GBR are set out in more detail below. For ease of understanding, the full text of each GBR is set out below with the proposed revisions highlighted.

5.1 General Binding Rule 18

General binding rule 18 applies to all products which are stored, or applied, as fertilisers and includes: digestate, sewage sludge and compost. A number of amendments are proposed to clarify that latest operational practices must not pose a risk to the water environment.

Amendment of activity

The activity currently provides exemptions if the storage or application of fertiliser is regulated by certain specified legislation. Since the introduction of the general binding rule 18 in 2008 it has been identified that some of this specified legislation does not actually deal with the storage of fertilisers, and none of it with deals the application of fertiliser. Therefore the activity requires amendment to reflect this.

It is proposed to split the activity into (a) storage and (b) applications; as the exemptions would only apply to the storage and not to the application of the fertiliser. With regard to storage, the exemptions will be continue to apply:

  • when the storage is covered as a waste in terms of section 35 (waste management licence: general) of the Environmental Protection Act 1990.
  • when the storage is covered by The Control of Pollution (Silage, Slurry and Agricultural Fuel Oil) (Scotland) Regulations 2003 ( SSAFO) also remains.

Amendment of rules

To ensure that storage of digestate, which is not legislated by the Control of Pollution (Silage, Slurry and Agricultural Fuel Oil) (Scotland) Regulations 2003, is in a container of suitable structural integrity, rules (c) and (d) have been added. Storage should generally be of the same standard as for slurry storage.

Following instances of pollution and fish kill due to inorganic liquid fertiliser being inadequately stored, rules (e) (f) and (g) have been introduced to place controls over storage of liquid fertilisers. The rules are in line with the Code of practice on fluid fertilisers published by the Agricultural Industries Confederation.

Rule (k) has been added to ensure that there are controls over semi solid digestate when stored on farmland.

Current rules (c) to (e) become rules (h) to (j)

Amendment of rule (a)

The proposed amendment is to ensure that it is clear that the temporary storage of fertiliser is included.

Amendment of rules (a)(i), (h)(i) and (i)(i)

The proposed amendments of rules (a)(i), (f)(i) and (i)(i) are intended to clarify and bring consistency, to how distances from surface waters are to be measured for the purpose of compliance with the GBRs.

Addition to rule (a)(i)

The proposed addition to rule(a)(i) is intended to control the risk of fertiliser entering the water environment via a surface water drainage system.

Amendment of rules (a)(ii), (h)(ii) and (i)(ii)

Proposed amendment to these rules to ensure all wells and springs supplying water for human consumption are protected similarly. For the purpose of these regulations a "well" also now includes a permeable underground collection tank (see the proposed new definitions in Section 8). It has been identified that, in some cases, private water supplies which use these tanks as part of their supply system have had water supplies contaminated due to the close proximity of certain activities.

Additional rules (c) and (d).

Proposed new rules (c) and (d) have been added to ensure that digestate from anaerobic digestion plants, which is becoming more commonly used as a fertiliser, is stored in containment which is fit for purpose.

Additional rules (e), (f) and (g)

The proposed additional rules (e),(f),and (g) are designed to provide appropriate conditions for the storage of liquid inorganic fertiliser because of the specific additional risks to the water environment this type of fertiliser poses.

Current rules (f) and (g) become rules (l) and (m)

Amendment to rule (j) (previously rule (e)

The proposed revision of the rule, and the requirements of parts (i) and (ii), is to clarify that nitrogen fertiliser must not be applied in excess of crop needs and to ensure that the phosphorus status of soils is not raised to an unacceptably high level. This will reduce the risk to the water environment through leaching of nutrients, due to there being excessively high levels in the soil.

There is also a proposed amendment to require that fertiliser must not be applied during heavy rainfall or when such rainfall is forecast. Application at such times poses a high risk that the fertiliser will be carried in rainfall run-off to the water environment. Apart from the pollution aspect this would also be a loss of a valuable asset to the farm business.

Additional rule (k)

There have been recent instances where the storage on farmland of large quantities of semi-solid anaerobic digestate, or sewage sludge for use as fertiliser has resulted in pollution of the water environment. It is considered that a control on such storage of this material is required. It is proposed that where the digestate, or sewage sludge, is stored in-field it can only be stored in the amount to be applied to that particular field in the current growing season.

Activity

18(a) The storage of fertiliser unless the storage is regulated by:

(i) a waste management licence in terms of section 35 (waste management licence: general) of the Environmental Protection Act 1990; or

(ii) the Control of Pollution (Silage, Slurry and Agricultural Fuel Oil) (Scotland) Regulations 2003; and

(b) the application of any fertiliser

Rules

(a) No fertiliser may be stored, including temporarily in a mobile tank or bowser, on land that:

(i) is within 10 metres of any river, burn, ditch or loch, as measured from the top of the bank; within 10 metres of any wetland; or within 10 metres of any transitional water or coastal water, as measured from the shoreline, or within 10 metres of any opening into a surface water drainage system;

(ii) is within 50 metres of any well or spring that supplies water for human consumption or within 50 metres of any borehole that is not capped in such a way so as to prevent the ingress of water;

(iii) is waterlogged;

(iv) has an average soil depth of less than 40 centimetres and overlies gravel or fissured rock, except if the fertiliser is stored in an impermeable container; or

(v) is sloping, unless the fertiliser is inorganic or it is ensured that any run-off of fertiliser is intercepted (by means of a sufficient buffer zone or otherwise) to prevent it from entering any river, burn, ditch, wetland, loch, transitional water or coastal water towards which the land slopes;

(b) paragraph (a) does not apply if such storage is in a building which is constructed and maintained to such a standard as is necessary to prevent any run-off or seepage of fertiliser from the building;

(c) the base and walls of any container, and the walls and joints of any pipes, of any storage system constructed after [ coming into force date] and used to store liquid digestate must:

(i) be impermeable and protected against corrosion; and

(ii) capable of withstanding the loads on them when the storage system is full;

(d) any storage system used to store liquid digestate must be maintained in such a condition that no digestate escapes from the system;

(e) inorganic liquid fertiliser must only be stored in a rigid, impermeable tank that:

(i) has a lockable, double valve on the outlet that is closed and locked when the tank is unattended;

(ii) is located above ground; and

(iii) is protected from vehicle collision;

(f) when temporarily stored in field, inorganic liquid fertiliser must only be contained in a tank, bowser or spreading equipment:

(i) whose hatches and lids are securely closed and whose outlets are securely closed and locked, except when the fertiliser is being transferred or applied;

(ii) that is held on a support in such a way that it cannot become dislodged; and

(iii) that is on a support which is stable under the fully loaded weight of the tank or bowser and cannot itself become dislodged;

(g) when any inorganic liquid fertiliser is being transferred to a tank, bowser or spreading equipment ,all necessary steps must be taken to prevent any spillage or leakage entering the water environment;

(h) no organic fertiliser may be applied to land that-

(i) is within 10 metres of any river, burn, ditch or loch, as measured from the top of the bank; within 10 metres of any wetland; within 10 metres of any transitional water or coastal water, as measured from the shoreline; or within 10 metres of any opening into a surface water drainage system;

(ii) is within 50 metres of any well or spring that supplies water for human consumption or within 50 metres of any borehole that is not capped in such a way so as to prevent the ingress of water;

(iii) has an average soil depth of less than 40 centimetres and overlies gravel or fissured rock, except where the application is for forestry operations;

(iv) is frozen (except where the fertiliser is farm yard manure), waterlogged, or covered with snow; or

(v) is sloping, unless it is ensured that any run-off of fertiliser is intercepted (by means of a sufficient buffer zone or otherwise) to prevent it from entering any river, burn, ditch, wetland, loch, transitional water or coastal water towards which the land slopes;

(i) no inorganic fertiliser may be applied to land that-

(i) is within 2 metres of any river, burn, ditch or loch, as measured from the bank top; within 2 metres of any wetland; within 2 metres of any transitional water or coastal water, as measured from the shoreline; or within 2 metres of any opening into a surface water drainage system;

(ii) is within 5 metres of any well or spring that supplies water for human consumption or within 5 metres of any borehole that is not capped in such a way so as to prevent the ingress of water;

(iii) has an average soil depth of less than 40 centimetres and overlies gravel or fissured rock, except where the application is for forestry operations;

(iv) is frozen, waterlogged, or covered with snow; or

(v) is sloping, unless it is ensured that any run-off of fertiliser is intercepted (by means of a sufficient buffer zone or otherwise) to prevent it from entering any river, burn, ditch, wetland, loch, transitional water or coastal water towards which the land slopes;

(j) fertilisers must not be applied to land:

(i) in such amounts, that the crop requirement for nitrogen is exceeded;

(ii) in excess of the amount required to maintain the soil phosphorus status at acceptable agronomic levels; or

(iii) during heavy rainfall or where heavy rainfall is forecast within 48 hours

(k) digestate or sewage sludge stored in-field on farmland must not be stored in excess of quantities expected to be spread on that field in a single growing season.

(l) any equipment used to apply fertiliser must be maintained in a good state of repair; and

(m) fertiliser must be applied on land in such a way and at such times that the risk of pollution of the water environment is minimised.

5.2 General Binding Rule 19

The rules associated with the keeping of livestock contain minimum distances from watercourses. The minimum distances shall remain, but in some instances it has been identified that, at some locations, this may not provide adequate protection, and run off still has potential to enter watercourses. Therefore it is proposed that in instances where the minimum distance is observed and run off is still entering watercourses an additional adequate buffer zone is observed.

Amendment of rules (a) and (c)

The proposed amendments are intended to clarify how distances from surface waters are to be measured for the purpose of compliance with the GBRs.

Additional rule (d)

The proposed addition is intended to ensure that rainwater run-off from areas around feeders and watering points does not enter the water environment. In relation to areas around feeders the addition replaces the existing rule but clarifies that it is run-off from areas in which livestock congregate around the feeders, and that, in certain circumstances, the buffer must be increased to an adequate width to avoid run off entering the watercourse.

Activity

19. Keeping of livestock.

Rules

(a) Significant erosion or poaching of any land that is within 5 metres of any river, burn, ditch or loch, as measured from the top of the bank; within 5 metres of any wetland; or within 5 metres of any transitional water or coastal water, as measured from the shoreline, must be prevented;

(b) livestock must be prevented from entering any land that is within 5 metres of any spring or well that supplies water for human consumption or within 5 metres of any well or borehole that is not capped in such a way so as to prevent the ingress of water;

(c) livestock feeders must not be positioned within 10 metres of any river, burn, ditch, or loch, as measured from the bank top, within 10 metres of any wetland or within 10 metres of any transitional water or coastal water, as measured from the shoreline; and

(d) before entering any surface water or wetland, run-off from land on which livestock congregate to access watering points or feeders must be intercepted (by means of a sufficient buffer zone or otherwise) such that any faeces, urine or soil in the run-off are prevented from entering that surface water or wetland.

5.3 General Binding Rule 20

To ensure that there is consistency with other general binding rules, rule (a)(i) requires to contain the point of measurement from the water course; and similarly rule (a)(ii) requires to contain "well", to protect private water supplies, in line with proposals for amendments to GBR 18.

As the risk in rule (b) only occurs when the operation is on a slope which slopes towards a watercourse, it is proposed that in the interest of clarity the rule is reworded to reflect this.

Soil erosion, from cultivation of land, has been identified as a major risk to water quality and the proposed amendment of rule (c) clarifies that minimising soil erosion is included.

Amendment of rule (a)(i)

The proposed amendments are intended to clarify and bring consistency to how distances from surface waters are to be measured for the purpose of compliance with the GBRs.

Amendment of rule (a)(ii)

The proposed amendments are designed to ensure the protection of wells from pollution risks arising from the cultivation of land.

Amendment of rule (b)

The proposed amendments at (b)(ii) are designed to improve clarity - ie that it is the direction of slope of the land not the surface water that is the restriction intended.

Amendment of rule (c)

The proposed amendment is to ensure that the cultivation of land is carried out in such a way that pollution from soil erosion is minimised

Activity

20. Cultivation of land.

Rules

(a) No land may be cultivated for crops that is-

(i) within 2 metres of any river, burn, ditch or loch, as measured from the top of the bank; within 2 metres of any wetland; or within 2 metres of any transitional water or coastal water, as measured from the shoreline;

(ii) within 5 metres of any spring or well that supplies water for human consumption or within 5 metres of any well or borehole that is not capped in such a way so as to prevent the ingress of water; or

(iii) waterlogged;

(b) moling of land must not be carried out on slopes that:

(i) have an overall gradient in excess of 4.5°; and

(ii) slope towards a river, burn, ditch, loch, transitional water, coastal water or wetland;

(c) land must be cultivated in a way that minimises the risk of pollution to the water environment, including as a result of soil erosion;

5.5 General Binding Rule 23

Amendment of activity

The scope of this general binding rule with regard to pesticides is only intended to apply to those pesticides which are plant protection products. Plant protection products are substances intended for use in agriculture, horticulture, forestry, and amenity areas for the purpose of :

  • protecting plants or plant products by destroying, repelling or limiting the growth of pests
  • destroying or limiting the growth of weeds or undesired plants
  • controlling or modifying the growth of plants (other than as nutrients).

For the purposes of this general binding rule the definition of plant protection products is set out in Section 8

Amendment of rules(a), (b), and (c),

The proposed amendments of rules (a), (b) and (c) are to include all methods of application.

Amendment of rules (a)(ii) and(i)(i)

Amendments to (a)(ii) and (i)(i) are intended to clarify how distances from surface waters are to be measured for the purpose of compliance with the GBRs.

Amendment of rules (f)(iv), and (i)(ii)

The proposed amendments are designed to ensure the protection of wells from pollution risks arising from the storage and application of pesticides.

Additional rule (g)

The proposed addition of rule (g) is intended to allow the application of herbicide to control non-native invasive species of plants on river banks. As the majority of applications to SEPA on the use herbicide on river banks are for the purpose of controlling invasive plants this will enable work to be carried out without applying for authorisation.

Current rules (g) and (h) become (h) and (i); and previous final text under rule (h) becomes separate rule (j).

Activity

23. The storage and application of pesticides that are plant protection products.

Rules

(a) The preparation of pesticide for application and the filling, cleaning or maintenance of pesticide sprayers or other devices used to apply pesticides;

(i) must be undertaken in a manner which prevents any spillages, runoff or washings from entering any river, burn, ditch, wetland, loch, transitional water or coastal water; and

(ii) must not be undertaken within 10 metres of any river, burn, ditch or loch, as measured from the top of the bank; within 10 metres of any wetland; within 10 metres of any transitional water or coastal water, as measured from the shoreline; or within 10 metres of any opening into a surface water drainage system;

(b) pesticide sprayers and other devices used to apply pesticides must be maintained in a good state of repair, such that there is no leakage of pesticide from any part of the equipment and the sprayer is calibrated to accurately deliver the required application rate;

(c) pesticide sprayers and other devices used to apply pesticide must not be filled with water taken from any river, burn, ditch, wetland or loch unless;

(i) a device preventing back siphoning is fitted to the system; or

(ii) the water is first placed in an intermediate container;

(d) pesticide-treated plants must not be stored or soaked in any river, burn, ditch, wetland or loch;

(e) pesticide must be applied in accordance with the terms and instructions of the relevant product approval;

(f) unless in accordance with rule (g), pesticide must not be applied in, onto or over ground or allowed to drift onto or over ground-

(i) that is frozen, snow covered or waterlogged, except where the application in, onto or over waterlogged ground is necessary for the purpose of controlling fungal disease and all precautions are taken to minimise the risk of pesticide entering any river, burn, ditch, wetland, loch, transitional water or coastal water;

(ii) that is within 1 metre of any river, burn, ditch or loch, as measured from the top of the bank; within 1 metre of any wetland; or within 1 metre of any transitional water or coastal water as measured from the shoreline

(iii) that is sloping, unless it is ensured that any run-off of pesticide is intercepted (by means of a sufficient buffer zone or otherwise) to prevent it from entering any river, burn, ditch, wetland, loch, transitional water or coastal water towards which the land slopes;

(iv) that is within 50 metres of any well or spring that supplies water for human consumption;

(vi) that is within 50 metres of any well or borehole unless the well or borehole is capped in such a way as to prevent the ingress of the pesticide;

(vi) that has an impermeable surface which drains directly into a surface water drainage system, unless measures are taken to minimise the risk of pesticides entering the drainage system; or

(vii) along roads, railway lines, permeable surfaces or other infrastructure, unless measures are taken to minimise the risk of pollution of any river, burn, ditch, wetland, loch, transitional water, coastal water or surface water drainage system;

(g) pesticide may be applied within 1 metre of any river, burn, ditch or loch, as measured from the top of the bank; within 1 metre of any wetland; or within 1 metre of any transitional water or coastal water as measured from the shoreline where-

(i) the pesticide is specifically approved for aquatic use under the Plant Protect Products Regulation (EC) No 1107/2009 and are applied in accordance with the terms of that approval;

(ii) the application is for the sole purpose of controlling an invasive non-native species of plant;

(iii) no pesticide enters the river, burn, ditch, wetland, loch, transitional water or coastal water;

(iv) the ground over or onto which pesticide is applied is not frozen, snow covered or waterlogged;

(v) the ground over or onto which plant protection product is applied is not an impermeable surface which drains directly into a surface water drainage system unless measures are taken to minimise the risk of pesticide entering the drainage system;

(vi) the ground over or onto which pesticide is applied is not within 50 metres of any well or spring that supplies water for human consumption;

(vii) the ground over or onto which pesticide is applied is not within 50 metres of any well or borehole unless the well or borehole is capped in such a way as to prevent the ingress of the pesticide;

(viii) the application, including the method used, is designed to minimise damage to other, non-target vegetation; and

(ix) all necessary steps are taken to ensure that the application does not result in increased erosion of the banks of the river, burn, or loch or the shoreline of the transitional water or coastal water.

(h) application of pesticide must be carried out in such a way, and at such times, that the risk of pollution of any river, burn, ditch, wetland, loch, transitional water or coastal water is minimised and, in particular, pesticide must not be applied-

(i) during rainfall; or

(ii) during conditions when there is a risk that spray will drift or be blown outwith the target area; and

(i) pesticide, including any used packaging that has been stored in contact with pesticide, must not be stored-

(i) within 10 metres of any river, burn, ditch or loch, as measured from the top of the bank; within 10 metres of any wetland; or within 10 metres of any transitional water or coastal water, as measured from the shoreline;

(ii) within 50 metres of any well or spring that supplies water for human consumption;

(iii) within 50 metres of any well or borehole unless the well or borehole is capped in such a way as to prevent the ingress of any pesticide; or

(iv) on an impermeable surface draining to a surface water drainage system,

(j) rules ( i) (i), (ii) and (iii) do not apply where the pesticide or used packaging is stored in such a way that any leakage or spillage and any exposed pesticide on used packaging cannot reach any river, burn, ditch, wetland, loch, transitional water, coastal water or any opening into a surface water drainage system, including by being transported in rainwater runoff.

5.6 General Binding Rule 24

In recent years there has been a move within the agriculture sector from the actual dipping of sheep to the use of 'pour on' treatments. This treatment can still have potential to impact on the water environment. The activity and rule needs to provide that 'pour on' treatments are treated the same as sheep dip.

Amendment to the description of the activity

The proposed amendment proposes the inclusion of the activity of operating sheep handling facilities in which sheep are held during, or after, treatment with pour on chemicals.

Amendment of rule (a)

The proposed amendment clarifies that the rule applies to the use of pour on treatments, in addition to dipping.

Amendment of rule (b)

The proposed amendment applies the existing rule (which applies to dipping facilities) to handling facilities used for pour on treatments. The proposed amendments are also intended to clarify how distances from surface waters are to be measured for the purpose of compliance with the GBRs

Activity

24. Operating sheep dipping facilities;

and operating sheep handling facilities where:

(a) sheep are held immediately after dipping;

(b) pour on parasite treatments are applied; or

(c) sheep are held immediately after the application of pour on treatments

Rules

(a) After treatment, sheep must be prevented from having access to any river, burn, ditch, or wetland, loch, transitional water or coastal water while there is a risk of transfer of sheep dip fluid or any pour-on external parasite treatment from their fleece to such places;

(b) no mobile sheep dipping facility or part of any sheep dipping facility constructed after 1 st April 2008, and no sheep handling facility used for pour on treatments constructed after (coming into force date) may be located within 50 metres of any:

(i) river, burn, ditch, or loch, as measured from the top of the bank;

(ii) wetland

(iii) transitional water or coastal water, as measured from the shoreline; or

(iv) well, spring or borehole;

(c) sheep dipping facilities must not discharge underground and must not leak or overspill;

(d) sheep dipping facilities must not be filled with water taken from the water environment unless-

(i) a device preventing back siphoning is fitted to the system; or

(ii) the water is first placed in an intermediate container; and

(e) without prejudice to the continued requirement to obtain specific authorisation for the disposal of sheep dip under these Regulations, sheep dip facilities must be emptied within 24 hours following completion of dipping.


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