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3.4 Reservoir Safety

A total of 78 respondents (55%) out of the 143 responses to the consultation, submitted answers to the questions concerning reservoir safety.

Questions 30 to 34 considered the proposal to introduce a transfer of responsibility for enforcement of the Reservoirs Act 1975 in Scotland from local authorities to a single enforcement authority. In particular, these questions requested feedback from the respondents on which organisation they consider to best placed to undertake enforcement, the extension of post-incident reporting and requirements for the preparation of reservoir inundation maps and plans.

Question 30: Do you believe enforcement responsibilities under the Reservoirs act 1975 should be transferred to a single national body?

The answers to Question 30 have been categorised as shown in Table 34. A breakdown of the responses to the question by category of respondent is provided in Figure 35.

Table 34 - Q30 Summary of responses

Figure 35 - Respondent views on the transfer of enforcement responsibility to a single national body

90% of the 78 respondents to this question agree that the transfer of responsibility for enforcement of the Reservoirs Act 1975 would ensure a uniform and efficient application of legislative powers throughout Scotland.

The results of the consultation correlate well with an initial scoping exercise (unpublished) which carried out by the (then) Scottish Executive in March 2005. The scoping exercise found that the vast majority of responses (84%) were in favour of a transfer of enforcement responsibilities to a single national body. A minority of responders suggested a possible negative outcome of this proposal could be a potential loss of local knowledge should responsibility for enforcement be removed from local authorities. However, it was also acknowledged in the same replies that this knowledge could be built up and maintained within any new body.

The majority of respondents were in favour of a single national authority due to the belief that a single authority could provide the necessary consistency in evaluating and enforcing reservoir safety to uniform standards, methods and reporting, which respondents felt is not currently being achieved through the present system.

Other reasons stated for support of the transfer of authority to a single body were:

• Benefit of sharing resources and expertise in flood risk management activities, rather than segmentation between the implementation of the Floods Directive and the Reservoir Act 1975;
• Centralisation of responsibility would give the authority a stronger position for enforcement of the Act;
• Single body would be able to allocate staff dedicated to the enforcement of the Act to ensure that reservoir safety is more robustly policed;
• Reduction in the burden on local authorities;
• Enabling the compilation of a central database of dams and incidents, providing a mechanisms for the analysis of nationwide trends in reservoir safety/issues and identification of non-compliant undertakers;
• Single authority would be in a better position to keep reservoir safety in Scotland under review, promoting good practice and highlighting necessary revisions to the legislation as new technology and methods emerge;
• Development of expertise in a specialised field.

However, two respondents in favour of the change in enforcement responsibilities raised concerns about the ability to guarantee sufficient technical and financial resources to a single authority.

The 8 respondents that were not in favour of the transfer of authority were Local Authorities (4), Non-Governmental Organisations (3) and members of the public (1) (refer Figure 35). Reasons against the transfer to a single authority are provided below:

• One respondent believed that the local authority enforcement should be maintained by the 32 Scottish local authorities due to the risk of losing information currently stored by local authorities during its transfer to a single authority;
• Two respondents assert that there would be no cost savings achieved by passing the role to a single authority;
• Two respondents believe that local authorities need to know all issues relating to reservoirs and therefore it is more appropriate if they retain responsibility for enforcement of the Act;
• Two respondents believe that the current enforcement of the Act by the 32 Scottish local authorities is satisfactory and that it is easier for the Act to be enforced by local authorities;
• Three respondents provided no reason for their answer.

A number of issues were raised by respondents in terms of the shift from local authority enforcement of the Reservoir Act 1975 to a single national authority. In particular, SEPA believes that a key task in the transfer of authority will be auditing and reviewing the current registers to determine how easily these can be transferred to a single authority. SEPA and a local authority emphasised that reservoir safety must be clearly linked to planning, civil contingency and flood warning arrangements and that information on reservoir safety must be shared with local authorities.

A small number of respondents also believe that there should be uniform implementation of the Act for all reservoirs and tougher enforcement for the safety of canals.

Finally, one member of the public suggested that the national body could be divided into teams based on regional areas or different types of dams (i.e. concrete or earth reservoirs).

Question 31: If so, should it be SEPA or another as yet unidentified body?

The answers to Question 31 have been categorised as shown in Table 35. A breakdown of the responses to the question by category of respondent is provided in Figure 37.

Table 35 - Q31 Summary of responses

Figure 36 - Respondents views on whether SEPA should be the single national body

A total of 49 of the 73 respondents (67%) who answered Question 31 believed that the responsibility for enforcement of the Reservoirs Act 1975 should be transferred to SEPA to act as the single national authority. In particular, 14% of these respondents believed that SEPA were the appropriate organisation for this role if they become the responsible authority for the Floods Directive, as this dual responsibility would enable the integration of flood risk management, River Basin Management Plans, CAR and reservoir risk management.

Other reasons provided for the support of SEPA in this role were:

• This model mirrors the system in England and Wales;
• SEPA have an established presence in Scotland and have existing relationships with local authorities, the Scottish Government and Scottish Water that would facilitate the sharing of knowledge and expertise;
• SEPA are already an established regulatory body and are an authority in flooding;
• The role should be carried out by a body that does not own or operate any reservoirs, such as SEPA.

SEPA believe that they are well-placed to assume the current and envisaged extended powers and duties as the national body and integrate these duties with their current statutory powers, provided they are provided with the appropriate resources.

However, 27% of the respondents who answered this question are against the appointment of SEPA in this role for the following reasons:

• SEPA may have a conflict of interest between environmental interests and public safety;
• Responsible authority should only deal with regulation of the Reservoir Act 1975 and not have other remits;
• SEPA's role is already too diluted and it is taking on too many agendas and too much responsibility from the Scottish Government;
• The proposals may shift SEPA's focus away from its environmental regulator role;
• Managing reservoir safety and engineering is not within SEPA' area of expertise;
• Problems experienced with the Environment Agency in England and Wales may be experienced with SEPA in Scotland.

A total of 14 of the 20 respondents that believed that SEPA should not become the responsible authority for the Reservoirs Act 1975 and provided alternative suggestions for the role. One respondent provided two suggested alternative authorities. These suggested authorities are summarised in Table 36 and shown by category of respondent in Figure 38.

Table 36 - Suggested Alternative Responsible Authorities for the Reservoirs Act

The 2 respondents that nominated the appointment of HSE in this role believe that HSE are better placed than SEPA to deal with enforcement issues because they already exercise control over reservoirs that form part of the workplace and have the required expertise for this role.

Figure 37 - Suggested alternative responsible authorities for the Reservoirs Act

One of the main issues raised by the respondents was the additional resources and widened skill base that would be required by SEPA if they are appointed as the single national body for the enforcement of the Act. In particular, 8% of the respondents who believed that SEPA should become the single national body for enforcement of the Act, stated that SEPA should only become this authority if resource and capability issues can be addressed. New skill sets required by SEPA would include expertise in water engineering, such as reservoirs and water retaining structures, as well as legal advice for the enforcement of the Act. A private sector respondent also suggested the provision of a stakeholder group to provide industry guidance to the authority to help to overcome the shortage of in-house expertise.

As discussed, one of the reasons why respondents disagreed with the appointment of SEPA as the responsible authority was due to a potential conflict of interest with SEPA's environmental remit. In particular, 4 local authority respondents questioned how SEPA would deal with emergency actions that may need to be taken in the interest of reservoir safety as there is not a provision in the CAR for carrying out emergency engineering work and they are also the enforcing authority for the CAR. One respondent was also concerned that SEPA may amend or interpret the Reservoir Act for environmental enhancement purposes, rather than in the interests of public safety.

A local authority respondent made the following suggestions for dealing with potential conflicts of interest facing SEPA as the single national body:

• Appointing SEPA and providing immunity from prosecution where emergency action is required; or
• Removal of the exemption from the Control of Major Accident Hazards Regulations to introduce requirements that would increase public safety and ensure SEPA would be supervised by an independent body.

Question 32: Are you content with the proposals for dealing with reservoir flood maps under the provisions of the Floods Directive, or do you think that there should be a statutory duty on reservoir undertakers to prepare reservoir inundation maps and plans, similar to the duty in the 2003 Water Act for England and Wales?

It is proposed that reservoirs are assessed as part of a preliminary flood risk assessment under the Floods Directive, and where it is considered that a dam breach would give rise to significant hazards, then the competent authority ( SEPA) under the Floods Directive would be required to map that risk.

The responses to this question are listed in Table 38 and presented graphically in Figure 39.

Table 37 - Q32 Summary of responses

Figure 38 - Respondent views on whether they are content with the proposal for dealing with reservoir flood maps

A number of respondent groups, particularly local authorities and members of the public, were divided in their response to this question (Figure 39).

60% of the 68 respondents to this question are content with this proposal. The following reasons were provided for support of the proposal:

• A consistent approach would be applied if the maps and plans are prepared by the single national authority rather than separate undertakers/owners;
• The requirements for mapping needs to be assessed for each reservoir rather than being imposed as a requirement for all reservoirs;
• A statutory requirement would be a burden on small clubs, such as angling clubs, that do not have the resources or the ability to produce inundation maps or plans;
• SEPA have previously carried out flood mapping and are therefore best placed to undertake this work;
• Greater facilitation of the development of a central database for mapping and plans;
• Development of mapping and plans as part of the Floods Directive would provide a streamlined process and a clear picture of all potential flood risks through a single process;
• Private owners may not have the financial resources and/or skills to produce inundation mapping.

However, 40% of respondents believe that the Act should be amended to impose a duty on reservoir undertakers to produce separate inundation maps and flood plans to show the extent of the flood risk following an uncontrolled release of water from a reservoir, in the same way as is required in England and Wales.

The majority of respondents in favour of a duty on reservoir owners/undertakers believed that inundation maps are critical for the identification of all hazards and risks associated with reservoir safety, and that a statutory duty would ensure that new maps are produced. However, a number of other reasons were provided, including:

• It would conform with system implemented in England and Wales under the Water Act 2003;
• Reduction of the burden on the single national authority responsible for the Reservoir Act 1975;
• Through the process of preparing inundation maps and plans, owners/undertakers would become more aware of the consequence of failure of their reservoir;
• Dam break analysis is a highly specialised task that SEPA do not currently have expertise to undertake.

Although a number of respondents were concerned with the burden that a duty would place on small clubs, such as angling clubs, to produce the maps and plans, a number of respondents suggested mechanisms for overcoming this issue. These suggestions included:

• Outsourcing the preparation of the plans;
• A mechanism to provide financial support to smaller owners for the preparation of these maps/plans;
• Smaller reservoir owners may be permitted to lesser requirements at the discretion of the responsible authority; and
• A duty could be placed on Category A and B dams managed by large authorities (e.g. Scottish Water, Scottish and South Power), but lesser duties could be imposed on other dam categories;
• Impose a duty based on the potential risk, rather than the size of the reservoir (i.e. no absolute duty on all owners/undertakers).

One consultant suggested a suitable mechanism for initial risk assessment and inundation mapping based on the combined use of LIDAR and two-dimensional modelling. This would enable the basic risk of a reservoir to be understood and provide information that could be used to determine whether more detailed inundation mapping was required.

A major issue raised by 4 respondents to this question was the distribution of the information provided by inundation mapping and plans. In particular, these respondents believed that there should be greater freedom of information associated with these plans and that they should be available for access by insurers and the public. However, one related issue raised at a workshop was the potential security and terrorism threat that may exist if reservoir inundation maps were made public.

In addition, a small number of respondents felt that inundation maps/plans should be shared with emergency services and local authorities for duties in emergency planning and inclusion in Local Development Plans ( LDPs). This could be facilitated through the development of a national database of the plans and/or incorporation of the mapping in local flood risk management plans.

A further issue raised relates to the methodology for the preparation of the mapping. In particular, one member of the public believed that the responsible authority must ensure best practice in the preparation of inundation maps and plans, including the use of state of the art dam break inundation software such as ' IMPACT'. The respondent also recommended that dam break inundation maps are merged with general flood maps, planning restrictions placed on any development within areas of these maps, riverbank camping in flooded areas be prohibited; warning signs should be posted about evacuation procedures.

Another respondent raised the point that on-site and off-site contingency plans are required. While the off-site component would be prepared by agencies identified under Civil Contingencies legislation, the on-site component is not referred to in the Act and the respondent believes that these plans are best prepared by/with the owner/undertaker of the reservoir.

Finally, one private sector respondent believed that it should be recognised that reservoir flood mapping will not provide all detail required to carry out full consequence analysis and that there should be a requirement for incremental consequence assessment or worst case inundation mapping for emergency planning purposes.

Question 33: Do you agree that enforcement powers be extended and post incident reporting included as an additional requirement?

Section 8 of the Reservoirs Act provides, for England and Wales, powers of enforcement to the Environment Agency (as enforcement authority) in the event of non-compliance by a reservoir undertaker with recommendations made by the supervising engineer in connection with the construction or enlargement of a reservoir. At the moment these powers are not available in Scotland, and it is proposed to amend the Reservoirs Act to ensure that they are available to the new enforcement authority for Scotland. In addition, it is also proposed to introduce to a system of post incident reporting that will include such information as is deemed appropriate by the enforcement authority following an incident.

This question asked respondents to comment on whether the extension of these enforcement powers and post-incident reporting should be included in the Act. The responses to this question have been categorised as shown in Table 38.

Table 38 - Q33 Summary of responses

Accordingly, it can be seen that a majority of 74 respondents to Question 33 (93%) believe that the enforcement powers are currently limited and need to be extended to ensure measures recommended in the interests of safety are carried into effect, within a specified timescale, to reduce the instances of non-compliance with the Act.

93% of the respondents that answered Question 33 also believe that post incident reporting should be introduced, with many respondents stating that this would provide a national database of reservoir incidents that would strengthen the understanding of any incidents that may occur. It is believed that data provided through post incident reporting could be used to assess national trends in dam failure (e.g. a quantitative risk assessment to be carried out to determine the frequency at which certain types of events occur) and provide an opportunity to learn from incidents and prevent future failures.

Figure 39 - Respondent views on whether the extension of enforcement powers and post incident reporting should be included in the Act

Only 5 respondents were against the inclusion of extended enforcement powers (Figure 40) and post-incident reporting, including SEPA. SEPA stated that they do not agree with the extension of enforcement powers and the introduction of post-incident reporting, and believe that the enforcing authority's role should only be to draw together the information on potential reasons for an incident.

One issue raised by a small number of respondents was that post incident reporting needs to be completed to a common standard to ensure that there is consistency of data provided on incidents across the country. To address this, a local authority suggested using the 'Post Incident Report Form' used by the Environment Agency in England and Wales should be used as a proforma for post incident reporting in Scotland.

Another issue raised by both SEPA and a local authority was the need to ensure that an independent panel engineer is called in by the enforcing authority after an incident to assess the cause of the incident, including failure on the part of the Construction, Inspection or Supervising Engineers in their roles.

Question 34: Views on crown application and any other comments?

The Act in Scotland is not binding on Crown bodies having to comply; this legislative review presents the opportunity to consider this. This question asked respondents to provide their opinion on Crown immunity and invited any other comments on enforcement of the Reservoir Act 1975.

93% of the respondents to this question provided a clear answer of whether Crown immunity from the Reservoirs Act 1975 should be removed. A summary of the responses is provided in Table 39 and is shown in Figure 41.

Table 39 - Q34 Summary of responses

Figure 40 - Respondent views on whether Crown immunity should be removed

The results described in Figure 41 suggest that the overwhelming majority of respondents that answered this question (91%) believe that Crown immunity should be removed and that the Reservoirs Act 1975 should be applied equitably across all reservoirs and owners/undertakers in the interest of reservoir safety.

A single local authority believed that Crown immunity should remain, but the Crown should be encouraged to comply with the Act.

Many respondents to this question raised the issue of coverage by the Act, stating that there needs to be a review of the current capacity definition based on water retaining capacity and suggesting a move towards a risk based approach by which reservoirs are covered by the Act or the blanket application of the Act to all reservoirs (including small reservoirs). In addition, one consultant believed that there needs to be consideration of the requirement for the application of the Act to very remote dams that would not result in risk to life or property damage if flooded.

Another issue raised by a small number of respondents was the issue of resources. In particular, one respondent believed that the Scottish Government needs to explore ways in which to increase the number of engineers on the panel set up by the Secretary of State to undertake the inspections and ensure the continuing structural integrity of the reservoir and associated structures.

In addition, one member of the public suggested that the legislation should take into account other dam failure mechanisms, such as overtopping, snow melt and computer software problems.

Other suggestions provided by respondents included:

• A requirement that Public Liability Insurance is compulsory for all reservoirs under the Act;

• Ensuring that the rights of owners are maintained, but providing a mechanism for the compulsory purchase of reservoirs if the owners prove to be unreasonable in complying with the Act.

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