The Legislative Opportunity - the Water Framework Directive
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.
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, even if the abstraction is of very long standing. It is through this route that impacts like the over abstraction of the River Garry may be remedied.
However, some activities have been 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."
According to the European Commission, three tests must be applied to hydro power to exempt it from having to make improvements to the water environment under the Water Framework Directive. These are:
1) Are alternative forms of generation technically impossible?
2) Are alternative forms of generation prohibitively expensive (we understand this applies to the member state rather than to individual companies)?
3) Would alternative forms of generation produce a worse overall environmental result?
With respect to the suggestions we have outlined for restoring the River Garry, in our opinion, the answer to all three questions is a resounding NO.
It is quite clear that the paltry amount of energy under consideration could easily be replaced by alternative means like wind turbines. This decision by SEPA sets an important precedent, clearly demonstrating that the Three Tests support the loss of some hydro generation for the restoration of the River Garry.
Legislative Opportunity Update: the Q96
Over the best part of ten years since discussions on rewatering rivers like the Garry commenced there has been more clarification on what level of flow etc might be required to meet standards such as Good Ecological Potential.
It was not, in fact, until near the end of 2013 that the base level flow was finally agreed at UK level. Then the UK Water Framework directive (UKTAG) agreed that the base flow should be something called the Q96 flow with some level of "freshets" on top. The Q96 flow is a level of flow that might be expected to be exceeded for 96% of the year under average long terms flows. Or put another way, the flow on the 15th driest day of an average year. Not a huge flow therefore. In the earlier years of these discussions it was not clear what level of "loss" of electricity generation might considered acceptable. Some years ago at least one party argued that there should be no overall loss in energy generated and that increased abstraction should be allowed in some places to offset reduced abstraction elsewhere, if feasible. However, since that time, SEPA have proposed that an overall cut of 2% of hydro generation might be acceptable for Scotland as a whole, that is approximately 100 GWh per annum.