The management of water resources is multifaceted, with interactions between differing human and ecological demands, and is subject to variable hydrology and changing climate. It follows that the institutional frameworks governing hydropower are complex and geographically varied (Glachant et al., 2014). The following is an overview of the regulatory framework of relevance to small hydropower development in Scotland, beginning with Europe-wide directives through national requirements.
1.4.1 European legislation
The two main pieces of European conservation legislation which impact upon the development and operation of hydropower are the Water Framework Directive (WFD) (European Directive 2000/60/EC) and the Habitats Directive (HD) (92/43/EEC). The WFD requires the protection and restoration of the water environment and the HD requires the protection of certain water-dependant freshwater species and habitat features.
Of particular relevance to hydropower, Member States must: maintain or restore European protected habitats and species listed in the Annexes at a favourable conservation status; encourage the management of features of the landscape
which are essential for the migration, dispersal and genetic exchange of wild species; and, ensure strict protection of species listed on Annex IV of the Directive (also known as European Protected Species).
The Habitats Directive annexes include a range of anadromous fish species which could be impacted by hydropower developments, either through abstraction, or the installation of structures which reduce habitat connectivity within river catchments. These include Atlantic salmon, river lamprey, sea lamprey, Allis shad (Alosa alosa (L.)), twaite shad (A. fallax (Lacepède)) and Atlantic sturgeon (Acipenser sturio L.). A wider range of non-fish species which depend on the presence of these fish, or the maintenance of appropriate river flows, such as freshwater pearl mussel (Margaritifera margaritifera L.) and otter (Lutra lutra (L.)) may also be impacted. The presence of in-stream structures which delay the migration of fish downstream may, conversely, increase predation opportunities for species such as otters, or piscivorous birds which are also protected under the EC Birds Directive (Directive 2009/147/EC).
Also of specific interest is the Eels Regulations (Council Regulation 1100/2007) which calls for “appropriate measures as soon as possible to reduce eel mortality caused by factors… including hydroelectric turbines, pumps or predators”. Key to planning policy is the Environmental Impact Assessment Directive (European Directive 2011/92/EU) which sets out the requirements for environmental impact assessment. These Directives have been variously translated into regional law to incorporate and supersede existing legislation with integrated Europe-wide policies.
1.4.1.1 Planning and Licencing for Hydropower in UK Regions
In the UK, hydropower developments are generally subject to three areas of legislation: 1) planning permissions – regulated by local authorities or national government, depending on scale; 2) licensing for the abstraction or impoundment of water bodies – regulated by the environment protection agencies; and 3) compliance with environmental and natural heritage conservation law.
These three aspects are integrated to varying degrees in the application process for hydropower developments. The process as a whole is administered by the national authority responsible for environmental protection: the Scottish Environment Protection Agency (SEPA), the Environment Agency (EA) in England, Natural Resource Wales, and the Northern Ireland Environment Agency (NIEA).
Hydropower regulation in Scotland
The potential conflict between the European Renewables Directive and legislation protecting the water environment prompted Scottish Ministers to make a policy statement in 2010 to clarify the government’s standpoint on balancing these needs. In response, SEPA released a guidance document aimed at facilitating the process of run-of-river hydropower licence applications (latest revision: SEPA, 2014).
In Scotland, water abstractions, impoundments and engineering works in or near inland water or wetlands require a Controlled Activities Licence (commonly referred to as a CAR licence), under the Water Environment (Controlled Activities) (Scotland) Regulations 2011. SEPA is responsible for the administration of CAR licences.
Proposals of less than 100 kW capacity will normally only accepted where they cause no degradation of the water environment (SEPA, 2014). That is, if they will be in degraded waters (with no restoration planned), or in small, steep streams, or those which will make improvement to the ecological quality of the water environment, and will operate within river flow standards. These flow standards are designed to protect minimum (or hands off) flows, flow variability, peak flows, and flows for the migration of fish. Development consent must be obtained from the Local Authority, subject to an environmental impact assessment if the site is in a sensitive area. Scottish Natural Heritage play a consultee role for developments that affect sites or species of conservation importance, and District Salmon Fishery Boards are consulted for developments that are planned in river systems where Atlantic salmon are present.
The protection of valued freshwater fish stocks is well established in Scottish law. Specifically with regard to Atlantic salmon and hydropower, the Salmon and
Freshwater Fisheries (Consolidation) (Scotland) Act 2003 allows Scottish Ministers to make further regulations with regard to “the construction and alteration of dams, lades or water wheels so as to afford a reasonable means for the passage of salmon”. The governance of freshwater fisheries in Scotland is in the process of review and it is likely that District Salmon Fishery Boards will be replaced by a new National Freshwater Fisheries Unit, supported by a network of local Fishery Management Organisations These may play a statutory consultee role for hydropower issues in future years. The centralised management of fisheries offers the opportunity to facilitate holistic and strategic consideration of pressures such as hydropower, and to develop more standardized policy with regards to planning. This new fisheries management structure will have an ‘all species’ remit and will not be restricted to providing comments on ‘salmon’.