The Reservoirs (Scotland) Bill was introduced into the Scottish Parliament on 6 October 2010. The Bill, when passed, will supersede the Reservoirs Act 1975. It covers two main areas:-

Reservoir Safety and Management

New offences for failure to restore the water environment of a river basin under the Water Environment and Water Services (Scotland) Act 2003.

NB this e-zine deals only with reservoirs.

The objective of the legislation is to create a legal and administrative framework for the construction and management of “controlled reservoirs” in a manner which reduces the risk of an uncontrolled release of water and the consequences of flooding.

A “controlled reservoir” is defined as a structure designed or used for collecting and storing water, or an artificial (or partly artificial) area capable of holding 10,000 cubic metres of water above the natural level of any part of the surrounding land. It also includes technical features such as valves and pipes.

The alternative definition (i.e. the artificial, or partly artificial, area capable of holding water), therefore, has two features:-

the volume of water is a minimum of 10,000 cubic metres – BUT Scottish Ministers are to be given power to take control over reservoirs of less than that minimum capacity where they have particular concerns about risk. They will also be able to change the minimum volume above which regulation applies should evidence suggest that a different volume should apply.

the water holding area must be “raised”

NB 10,000 cubic metres is not a large volume or area of water. It might, for example, include a duck flighting or trout fishing pond, created by damming a burn, if the result is to raise the level of water above the natural surroundings.

The salient provisions of the Bill are:-

To substitute SEPA for local authorities as the regulatory and enforcement agency for all controlled reservoirs, charging it with the obligation to set up a Controlled Reservoirs Register, in which are to be entered the contact details of the owner and other information depending on the risk category into which the particular reservoir falls (See below).

To vest in SEPA a package of enforcement options including stop notices, financial penalties, publicity and further criminal proceedings and emergency powers of entry.

Each reservoir is to be classified as high, medium or low risk, depending on the threat to life, property or critical infrastructure, with each risk category carrying a different and proportionate level of supervision and inspection requirements.

The setting up of Scottish panels of engineers (independent qualified civil engineers) to provide technical expertise and supervision, in addition to their inspection duties.

The appointment of a relevant engineer who is to be responsible for, and to certify, any increase or reduction in the capacity of any controlled reservoir, or any other relevant work.

Simplification of the certification system.

Enabling powers for a mandatory incident reporting regime and the production of flood plans.

A dispute referral procedure, permitting reservoir managers to challenge the requirements of panel engineers.

Removal of the requirement for “interim” certification.

The bill is expected to be enacted during the remainder of this Parliament.

Further Information

For further information on the issues raised in this ezine, please contact Jim Drysdale, John Mitchell or Alex Brown, or your usual contact within the Land Resources Team.

This bulletin is for general information only and does not constitute legal, investment or other professional advice. Please contact us should you require advice on any particular legal issue. Anderson Strathern LLP accepts no responsibility for any loss that may arise if reliance is placed on any information or opinions expressed in this bulletin.