Bathing water designation came to our attention when we were contacted by the River Almond Action Group (RAAG).
RAAG was formed in response to the severe levels of pollution present in the River Almond arising from sewage treatment works. The Forth Rivers Trust and West Lothian Council (with the assistance of RAAG) applied for bathing water status partly because that would have required SEPA to carry out regular monitoring of water quality. Their application was refused largely because it did not demonstrate a large number of users.
Our previous blogs on bathing water designation gave updates on the progress of our representation to Environmental Standards Scotland (ESS) on the barriers to bathing water designation in Scotland.
In this blog, our Assistant Legal Officer Preslava Todorova analyses how, over two years after our representation to ESS, bathing water designation remains murkier than ever.
Pippa Scott, River Almond Action Group, said:
“We want the unlawful barriers to bathing water designation to be removed. We applied for a bathing water designation at River Almond so we could have more protection from sewage pollution in the river – but the Scottish Government refused us.”
“It has been over two years since this representation to ESS, but we have seen no improvements that would fundamentally make it easier for communities to get a bathing water designation. It is concerning that ESS not only failed to do this but also appears to believe that it succeeded.”
Introduction
In January 2023, we made a representation to Environmental Standards Scotland (ESS) about the bathing waters designation process.
The bathing waters application form stated that a minimum of 150 bathers was required for designation to be considered for a specified body of water. When we made our representation, the 150 bathers threshold was the highest in the UK by a significant margin – making Scotland the most difficult part of the UK to have a bathing water designated.
Our main complaint was that the minimum threshold requirement was unlawful. The Bathing Waters Regulations (Scotland) 2008 require the designation of areas of water where it is expected that a ‘large number’ of people will bathe there (subject to a couple of other criteria). 150 is far above a ‘large number’.
We also argued that the application process was unlawful for separate reasons. The application form was inconsistent as it required applicants to provide evidence of bathing waters usage levels on both a single day only and on three separate dates. It also excluded the use of bathing data gathered during one-off organised events, without any justification.
The representation asked ESS to take action against the Scottish Government to revise the application form and remove the 150 bathers threshold.
In April 2023, the Scottish Government revised the application form. The 150 bathers threshold was removed from the application form, and replaced by more onerous criteria. The new criteria included requirements for landowner and local authority consents, as well as evidence of local consultation, and aerial and drone footage demonstrating user counts. These criteria would have made it more difficult to obtain a bathing waters designation.
Actions taken by ESS
ESS informed us that despite the removal of the 150 bathers threshold from the designation application form, the Scottish Government continued to apply this condition in practice to new applications. This effectively made the 150 bathers threshold a secret, unpublished policy.
A second new application form was then published around May 2024.
ESS published their ‘informal resolution’ report in November 2024.
Changes arising from the representation
The central purpose of the representation was the removal of the 150 bathers threshold from the application form – not only as a formal, express requirement, but as a general consideration.
The new version of the application form does not achieve that.
Whereas the form that existed before we contacted ESS contained an explicit numeric threshold, the latest form now states that “generally 150 people per day using the water for bathing… would likely be considered a ‘large’ number of bathers’’ (emphasis added).
The form indicates that in some circumstances, applications which demonstrate fewer than 150 users would also be acceptable. It’s unclear what circumstances those might be – this creates uncertainty for potential applicants as to whether the 150 bathers threshold applies.
Some of the changes made to the form include:
- The latest form provides for the inclusion of evidence from organised events. The 2023 form stated that spot surveys should not be undertaken on days of organised events.
- The latest form states that if a bathing water is designated, a landowner will be expected to grant access to the site, and that a landowner can be asked to provide a letter of support. However, the form states that it is, “not a requirement for anyone proposing a bathing water to contact local authorities or landowners about a proposal”.
- The latest form provides the applicants with the opportunity to include evidence of local consultations which may have been carried out in respect of the bathing waters application. By contrast with the previous form, the latest version implies that local consultation is not mandatory but may be helpful in the application if it has already been undertaken.
Comment
The new application form has made it more difficult to obtain bathing water status.
The references to a minimum of 150 bathers will likely deter applications relating to bodies of water which do not frequently attract that number of bathers.
Additionally, the bathing waters information page on SEPA’s website states that Scottish Ministers would take into account the following factors when reaching a decision on designation:
- Support from the relevant local authority;
- Support from landowner(s);
- Evidence of a local consultation.
These three factors have no basis in the Bathing Waters (Scotland) Regulations 2008. They have effectively been invented by the Scottish Government. Taking these factors into consideration when presented with an application for a designation would likely be unlawful and could be challenged in court.
We raised this matter with ESS during their consideration of this representation. It is disappointing that ESS did not require the removal of the above factors, and that they have allowed the Scottish Government to make the bathing waters application process more difficult.
Outdoor bathing has become increasingly important for health and wellbeing. Designating bathing waters is one of the few tools which communities have to ensure that the water quality at places where members of the public bathe is tested for contaminants. In the absence of designation, members of the public may be unaware they are swimming in polluted water that poses severe risks to health.
The overarching objectives of the Bathing Waters Directive are the protection of the environment and of the health of people using the water. Any conditions applied to the selection of designated bathing waters should be closely associated with these objectives. Our work with ESS on the bathing waters representation and the resultant final version of the application form demonstrate that this is not the case.
For ESS’s perspective, you can read their blog from 16 April 2025 in which they said:
“The improvements agreed will remove unnecessary burdens on those wishing to propose a bathing water, ultimately making it easier to protect these treasured recreational spots.”
See also ESS’s November 2024 informal resolution report.
By Preslava Todorova, ERCS Assistant Legal Officer
