Select Committee on Environment, Transport and Regional Affairs Memoranda


Memorandum by the Environment Agency (DWB 27)

  1.  The Agency welcomes this opportunity to put forward comments on the draft Water Bill to the Sub-committee. This memorandum is a review of the comments we intend to make to the Secretary of State.

  2.  The Agency welcomes the provisions laid out in the draft Water Bill. Some will enable the de-regulation of low impact activities whilst more significant operations can be better controlled. We set out below where we feel that further amendments should be considered.

ABSTRACTION AND IMPOUNDING

  3.  The Agency worked closely with the Department of the Environment, Transport and the Regions (DETR) on the development of the proposals in Taking Water Responsibly. This was published by the DETR in March 1999, following public consultation.

  4.  We believe that Taking Water Responsibly presented a coherent approach for modernising the management of water resources and for introducing the flexibility that will be essential in dealing with the uncertainties of climate change and the implementation of the Water Framework Directive. We would wish to see the Water Bill and subordinate legislation fully embrace the measures in Taking Water Responsibly.

  5.  The Agency welcomes the proposals to change the abstraction licensing system. We are clear that further clauses, or amendments to the present clauses, will be necessary to deliver all the legislative proposals in Taking Water Responsibly. We have noted this need on issues below, where we understand such additions or amendments to be the Government's continuing intention.

  6.  We support the de-regulation of small abstractions that have little effect on the environment, and the flexibility to deal with local conditions by threshold variation orders. Careful consideration will need to be given to the implementation of these changes to minimise the impact on those affected, and to manage the changes to the Agency's workload.

  7.  A key aspect of the changes is the move away from permanent rights of abstraction towards time-limited authorisations. We welcome the provision to end the liability to pay compensation for the curtailment of environmentally damaging permanent licences. We believe this will provide an incentive for the holders of such licences to convert to time-limited status.

  8.  We recognise the need for a simplified process for the renewal of time-limited licences and believe that our proposed changes to the advertising provisions and our plans for Catchment Abstraction Management Strategies are a simple and transparent basis for renewal.

  9.  The Agency has presented proposals (Better Licence Administration: A Review of Licence Administration Procedures) to improve administration to the DETR. We recommend that these are implemented.

  10.  We support the tougher penalties for breaches of licences and the provisions to strengthen the Agency's enforcement powers.

CLAUSES 1 TO 4—RESTRICTIONS ON ABSTRACTIONS

  11.  The Agency supports the division of licences into three types and the retention of exemptions for certain abstractions.

  12.  We welcome the removal of warping and trickle irrigation from the definition of land drainage since bringing these activities into the licensing regime will control the potential for environmental damage and place such activities on an equal footing with other forms of irrigation.

  13.  We note that further provisions will be necessary for bringing under control the very significant transfers for augmentation of supplies within land drainage systems. (This was proposed by the Government in Taking Water Responsibly). We have concerns with the provisions for dewatering exemptions if there is no power to enforce the giving of notice by abstractors.

CLAUSES 5 TO 8—LICENCE APPLICATIONS

  14.  The Agency supports these except for two points. We believe that for impoundment licensing, land ownership should be the qualification for any potential applicant since impoundment's involve permanent structures and may require operating agreements between the Agency and the licence holder.

  15.  The Agency should be responsible for all advertising for applications. This will simplify the process for the applicant, and be consistent with other application procedures within the Agency.

  16.  Advertising discretion should be extended to all minor proposals judged by the Agency as having a negligible effect on the environment or other rights of lawful water users. Extension of this discretion is essential to support the simplified renewal of time-limited licences.

CLAUSE 9—PROTECTION FROM DEROGATION

  17.  We support this amendment, but note that further Clauses will be necessary to maintain protection from derogation of small abstractors who are or will become exempt from the licensing requirements. Paragraph 3.34 of Taking Water Responsibly confirms that it was not Government's intention to remove protection from exempt abstractors.

CLAUSES 10 AND 11—FORM OF LICENCES

  18.  We support Clause 10 but believe that Clause 11 will not improve the administration of licensing. We believe that the requirement for the Agency to serve notice of impending expiry of a licence is unnecessary. The CAMS process will ensure that licence holders are notified that their licences will expire. We believe that further consideration is required as to what constitutes a valid application in the context of licence renewal.

CLAUSE 13—TRANSFER OF LICENCES

  19.  We welcome the move to simplify the present cumbersome arrangements for the transfer of licences. However, caution may be needed, particularly in relation to licences which do not specify the land on which water is to be used, if transfer would allow the new holder to return the water to the environment in a different way to the prior holder. We are also concerned for the same reasons about the statement in the explanatory notes that the need for water abstracted under a transferred licence to be used on the original land. We consider that licences should be transferred by the proposed means only if all details other than those of the licence holder remain unchanged. Any other change should require formal variation of the licence.

CLAUSES 14 TO 17—CLAIMS AND COMPENSATION

  20.  We fully support the changes to compensation and claims provisions. These will allow better protection to water resources and the environment without the threat of compensation claims when damaging licences are revoked. In Clause 15(2), we believe that the principle of no compensation for revocation of unused licences should apply also to the unused parts of licences. We query whether there needs to be a risk of "serious" damage before there are grounds for varying or revoking a licence.

CLAUSES 18 AND 19—WATER RESOURCES MANAGEMENT

  21.  We welcome the extension of the power to enter into arrangements with all licence holders.

CLAUSE 20—ENFORCEMENT

  22.  We support the introduction of notice provisions to bolster the Agency's enforcement powers where licences are breached. We do not believe that the test for serving the enforcement notice should be the likelihood of significant damage. It should be non-compliance with the licence.

  23.  We recommend the extension of those powers to situations where licences are likely to be breached so that such notices can be used as a preventative mechanism as enforcement notices are in the discharge consenting regime.

CLAUSE 21—BULK SUPPLY

  24.  This measure will help us to meet our duty to secure the proper use of water resources.

CLAUSE 44—PENALTIES FOR ABSTRACTION AND IMPOUNDING OFFENCES

  25.  We support the raising of the maximum fine to £20,000.

CLAUSE 46—DROUGHT

  26.  We support this Clause.

CLAUSE 47—INFORMATION

  27.  We welcome this power. It will ensure the Agency has the information required to determine licences. We are concerned that this power may not extend to obtaining Water Resource Plans from water companies.

CLAUSE 53—WATER CONVERSATION

  28.  We welcome the new duty on water companies to further water conservation but are disappointed that it has not been possible to place similar duties on all abstractors. The Agency will consider including "water conservation" conditions in new licences and encourage the voluntary inclusion of such conditions in variations to existing licences.

COMMENTS ON THE SUGGESTED FUTURE CLAUSES: PARAGRAPH 13, PAGE 12—ADVERTISING REQUIREMENTS AND OBJECTIONS TO APPLICATIONS

  29.  The Agency is very concerned at the apparent suggestion that a power is being proposed for the Secretary of State to routinely receive letters of objection to licence applications. This proposal was not part of the Government's earlier consultation. However, we understand that this in fact is not the Government's intention and that the latter part of this paragraph was intended only to signal that minor changes to the provisions of section 38 of the Water Resources Act 1991 might be necessary in order to align with the proposed changes to section 37 of that Act.

PARAGRAPH 15—REGISTER OF PROTECTED RIGHTS

  30.  We note that the provisions for a register of protected rights will be made in the final Bill. The Agency hopes that it will have the opportunity to comment on these proposals.

SIGNIFICANT OMISSIONS FROM THE CONSULTATION

  31.  We note the following omissions of other proposals contained in Taking Water Responsibly which we would like to be dealt with in the Bill or in the new Regulations:

    —  to require applicants for abstraction authorisations to submit details of the means by which the abstracted water returns to the environment;

    —  power for the Agency to waive the requirement to advertise for applications which seek to vary the terms of existing licences;

    —  to remove the need for advertisement of licence conversion to a time limited status;

    —  to make impounding authorisations, subject to a "de minimis" exemption, into consents for the life of the works authorised and transferable against any person owning or operating the works;

    —  to impose conditions on existing unlicensed impoundment's where damage is occurring, subject to rules of compensation; and,

    —  to amend Section 189 Water Resources Act 1991 to include abstraction return data as on public registers, and section 204 so as to minimise any permission required for disclosure and ensure consistency with the Agency's policy to operate in any open and transparent manner.

NEW REGULATORY ARRANGEMENTS (SECTIONS 23 TO 25, CLAUSES 22 TO 42)

  32.  We suggest that the Director General of Water Services should have a duty to contribute to Sustainable Development. The new Advisory Panel, the customer council and guidance from the Secretary of State on environment and social issues do not, in our view, give the Director General sufficient duties in this respect. We suggest that the Water Advisory Panel includes people who would represent the environment (and social matters) and that Clause 23 state that the Consumer Council should have a member to represent environmental interests.

  33.  We are concerned that the new duty to further the consumer objective in Clause 27 could give added emphasis to the immediate requirements of consumers and conflict with their needs for the longer term benefits of sustainable development. Such a duty could conflict with the environmental duties of the Secretary of State and the Director General and hamper the Agency's ability to achieve its own responsibilities.

  34.  We support the inclusion of flexible provisions for competition within the Water Bill, rather than having them in a general competition bill. This is because of the need for accountability on matters of public health and water quality.

RESERVOIRS (CLAUSES 49 TO 52)

  35.  We welcome the transfer of the enforcement responsibilities to the Agency, however, we would welcome an independent funding assessment to determine the level of funding required for this new role.

  36.  The power to make a direction by the Secretary of State on undertakers to prepare a flood plan is a new duty under the Reservoirs Act 1975. This power is welcomed. Clarification is required that "publication of the flood plan" means "publication by the undertakers (reservoir owners) of the flood plan" (Clause 52).

  37.  We add a comment on the Regulatory Impact Assessment. Greater emphasis should be given to the need to prepare emergency response plans for dam breaks and to identify areas at risk of flooding.

SEWERAGE (SECTON 54 AND CLAUSE 57)

  38.  This is a sensible "tidying up" Clause, which the Agency supports. We are concerned however about the working of this provision in practice and seek for the appeals mechanism to pass from the Agency to the Planning Inspectorate—a point not covered in the draft Bill. We are discussing this with the DETR. The Agency's position as promoter of environmental improvements and adjudicator of appeals for first time sewerage can conflict and may raise issues of compatibility with Article 6 of the European Convention on Human Rights.

TRANSFER OF DISCHARGE CONSENTS (SECTIONS 66 TO 67, 56)

  39.  We support the proposal to develop regulation-making powers for the Secretary of State to specify the information to be provided to the Agency by both parties to a transfer of a consent. This will ensure continuity of accountability for discharges.

TRADE EFFLUENT CONSENTS (SECTIONS 68 TO 70, 56)

  40.  We support the proposal in principle. We shall raise with the DETR an uncertainty of interpretation of Section 121 of the Water Industry Act 1991 by the water industry, regarding its powers to attach toxicity conditions to trade effluent consents.

COAL MINE WATER POLLUTION (SECTIONS 71 TO 73 AND CLAUSE 55)

  41.  The Agency supports the proposals to give the Coal Authority powers to deal with discharges from abandoned mines and believes that these powers will lead to environmental improvements of benefit to sustainable development.

  42.  We believe that in exercising its new powers the Coal Authority should be placed under a duty to consult the Agency before taking any action. This ensures that all parties are aware and that the most sustainable and cost effective options are identified.

  43.  We welcome the initiative to give the Coal Authority powers to prevent or mitigate the effects of discharges from abandoned coal mines and powers of entry and compulsory purchase. Land acquisition has been a limiting step in schemes to remediate pollution (Sections 71 to 73).

CONTAMINATED LAND (SECTIONS 46 TO 53 AND CLAUSE 56)

  44.  The proposals revolve around the introduction of a test significance for the pollution of controlled waters. The effect is to reduce the amount of land defined as contaminated. This should reduce the potential for blight on land where the risk to controlled waters is negligible. We support this aim. We note that:

    —  it will be important to ensure that the definition of contaminated land and any changes to it are exactly right, given the risk that land may be unfairly blighted if unnecessarily determined to be contaminated; and

    —  the Agency and DETR are liasing about certain aspects of the proposals, including the drafting of statutory guidance relating to the definition of contaminated land as proposed to be amended by the clause.

  45.  The Agency and DETR are in continuing discussion regarding a number of the details of the proposed changes to the Part IIA regime in order to ensure that they are compatible with other water legislation.

FLOOD DEFENCE

  46.  We have suggested that any review of Committees should take place after a review of how flood defence is funded.

January 2001


 
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Prepared 29 January 2001