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Scottish Water Pollution Offences

In Scotland, the principal water pollution offences are contained in the Water Environment (Controlled Activities) (Scotland) Regulations 2011 (known as the Controlled Activities Regulations or ‘CAR’): see regulations 44(1) and 4. The Scottish Environment Protection Agency (SEPA) is the enforcing authority.

It is an offence to carry on a controlled activity unless it is authorised under the Regulations and you are complying with that authorisation. Controlled activities are listed in regulation 3(1) of CAR, and include:

  • activities liable to cause pollution of the water environment;the direct or indirect discharge;
  • and any activity likely to cause a direct or indirect discharge, into groundwater of any hazardous substance or other pollutant;
  • any other activity which directly or indirectly is likely to have a significant adverse impact on the water environment.

An example of an indirect discharge to groundwater would be where a polluting liquid is poured onto the ground and gets into the groundwater by percolating down through the soil.

Levels of authorisation

A person or business can apply to SEPA for an authorisation to carry on a controlled activity, such as discharging treated sewage (i.e. an activity liable to cause pollution of the water environment). They must comply fully with the authorisation and all its conditions. Failure to do so is an offence.

SEPA issues two sorts of CAR authorisation, depending on the level of risk to the water environment. Activities which on their own pose a low risk, but cumulatively could pose a greater risk (such as discharges from septic tanks), can be authorised by registration, subject to standard conditions. Higher-risk activities require a water use licence, subject to standard and bespoke conditions, as necessary.

General binding rules

Over 20 specified low-risk activities are authorised automatically, without any need to contact SEPA, provided you comply with the corresponding ‘general binding rules’ (or GBRs) for that activity. These activities, and the rules corresponding to each such activity, are set out in Schedule 1 of CAR. Failure to comply with any of the rules is an offence.

The water environment

The offences cover all different parts of the water environment. The ‘water environment’ is defined in section 3 of the Water Environment and Water Services (Scotland) Act 2003. It means all surface water, groundwater and wetlands. ‘Surface water’ means all standing or flowing water on the surface of the land (including lochs, ponds, canals and watercourses), water in estuaries (which is partly saline) and coastal water out to 3 nautical miles. There are a number of exceptions, such as swimming pools and artificially created systems intended for treating pollutants.

Penalties

If a person or company is tried and convicted under summary procedure (i.e. by a judge), they could be fined up to £40,000 and/or imprisoned for up to twelve months, and if the offence is continuing, a further fine of up to £250 a day can be imposed for as long as the offence continues.

If they are tried and convicted on indictment (i.e. by a jury) they could face an unlimited fine and/or be imprisoned to up to five years, and if the offence is continuing, the further fine can be up to £1000 a day.

Defences

It is a defence to an offence under CAR if the contravention was the result of an unforeseeable accident, of exceptional or unforeseeable natural causes, or in specified emergency circumstances, provided that all practicable steps were taken to prevent deterioration of the water environment, to restore the water environment to its previous condition, and to notify SEPA promptly.

Water Environment and Water Services (Scotland) Act 2003

The Water Environment (Controlled Activities) (Scotland) Regulations 2011

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