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REGULATORY OPTIONS FOR THE MANAGEMENT OF
RURAL DIFFUSE POLLUTION
BJ D’Arcy 1 , K Schmulian 1 and R Wade 2
1
Scottish Environment Protection Agency, 7 Whitefriars Crescent, Perth, PH2 0PA,
UK, E-mail: Brian.Darcy@sepa.org.uk; 2 University of Abertay, Dundee, DD1 1HG, UK
SUMMARY
On 1 April, a new regulatory regime in Scotland came into force, bringing in
regulations to implement much of the requirements of the Water Framework Directive
(WFD). The WFD requires that diffuse sources of pollution are regulated, and this
paper examines how far that can be achieved under the new Controlled Activities
Regulations (CAR) regime, as well as considering opportunities for further control
under additional regulations, and perhaps beyond them.
INTRODUCTION
Diffuse pollution is a statutory area of core business throughout the EU under the
Water Framework Directive (WFD). Of course, even before WFD, diffuse pollution
was statutory business in Scotland and the rest of the UK. For example, in relation
to nitrates in Nitrate Vulnerable Zones (NVZs), faecal pathogens in bathing waters,
nutrients in lochs, and for diffuse pollution hotspots anywhere. Indirect or advisory
measures have also been used for many years, for example, in relation to forestry
practices and many of the measures in the Prevention of Environmental Pollution
From Agricultural Activity (PEPFAA) Code for agriculture. But the Water Framework
Directive specifically requires that diffuse sources of pollution are controlled, not just
a particular class of pollutants and not leaving the regulators with the soft option
of merely controlling the pollutants in major point sources. This paper focuses on
the use of the Water Environment and Water Services (Scotland) Act 2003, (the
WEWS Act) and subsequent regulations, notably The Water Environment (Controlled
Activities) (Scotland) Regulations 2005, (referred to as CAR below) for managing
diffuse pollution from rural sources. These provisions came into force on 1 April
2006. This paper also considers the possible form and content of further regulations
targeted more closely at the problem and possible regulatory solutions.
The effectiveness and appropriateness of regulation in the UK has been the object
of serious consideration after the publication of the report by Philip Hampton for
HM Treasury on regulatory inspections and enforcement. While there is no specific
equivalent in Scotland, the report has been influential. One of the recommendations
of that review was that consideration should be given to alternatives to regulation
and to striking the correct balance for regulation; proportionate to environmental
risks. The Water Framework Directive allows the use of what it calls supplementary
measures (economic support schemes, voluntary initiatives, policy considerations with
regard to pesticide or fertiliser taxes, etc.). An integrated approach to supplementary
measures and regulation is discussed in Davies (2006) and Campbell et al. (2004),
and is inherent in SEPA strategy (e.g. SEPA 2004a).
Although the requirement for regulation is explicit in WFD, there is scope for a light
touch or for tighter regulation. Figure 1 presents a representation of the three key
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