Quarry Dewatering
With a year to go before abstraction licences become necessary to undertake quarry dewatering activities, DLA Piper associate solicitor Penny Simpson describes some of the main hurdles firms will need to clear and explains why operators need to monitor dewatering activities in the run up to April 2009 and possibly to alter the way in which they are working the quarry.
Dewatering activities at quarries are currently undertaken under an exemption from the requirement for an abstraction licence – in the Water Resources Act 1991 (WRA). However, changes to the WRA – brought in under the Water Act 2003 (WA) – will remove this exemption (see box on page 18).
It is something that should have happened originally in April 2006 but the date has been put back a number of times. The latest estimate is April 2009, although the date may change again!
Following the removal of the exemption, if an operator wishes to continue dewatering it will need to obtain from the Environment Agency (EA) an abstraction licence. According to Defra there will be a two-year period following April 2009 within which to make the application. And the licence, if granted, will be time-limited.
Any application for an abstraction licence will trigger a number of regulatory regimes. The first is the abstraction licensing legislation under the WRA – which is by no means straightforward. The second is environmental impact assessment legislation, while the third, if the quarry is close to or within a site designated for conservation purposes, the relevant conservation legislation. And I’ll deal with all three in this article starting with abstraction licence applications.
Licence applications
In the run up to April 2009 it is expected that the EA will start to contact mineral operators to request that they apply for a new abstraction licence. However, even though operators will in most cases simply be continuing the same activity, the EA will not automatically grant any licences. Instead, operators will have to go through a complex regulatory process.
The process is complex due to the number of considerations which the EA has to address before it may grant a licence. In general terms these considerations relate to two issues: protection of the abstraction rights of existing abstractors in the locality, and protection of the environment.
An abstraction licence will obviously limit the amount of water that may be abstracted through dewatering. Therefore, in order to be sure that the abstraction licence application is suitable, a mineral operator will need to know
- how much water it abstracts currently; and
- whether its needs may change in the future so that the abstraction licence application should request some extra ‘headroom’.
For this simple reason it is important for any operator who is not already monitoring closely its dewatering activities to start doing so now and in the run up to April 2009.
However such monitoring will also assist in smoothing the hurdles in the application process relating to protection of abstraction rights of existing abstractors in the locality.
Protection of abstraction rights of existing abstractors
The WRA contains legislation that protects the rights of existing abstractors when an abstraction licence application is made.
This legislation can create significant hurdles for an abstraction licence applicant.
However, these constraints may in certain circumstances be avoided by operators due to certain provisions of the Water Act 2003.
In order to benefit from these provisions, an operator will need to know in the run up to April 2009 how much dewatering is being undertaken.
The issue
The issue is that the EA is – except in limited situations – under a duty not to grant an abstraction licence to a person, such as a quarry operator, who would “derogate from” any “protected rights” of any other persons, except with the consent of those other persons.
If the EA were to grant such a licence derogating from another person’s protected rights without that person’s consent, the EA could be sued by that person for damages.
Protected rights recognise an established entitlement of certain persons to abstract a certain quantity of water for certain purposes – although this does not guarantee the availability of the water. Those who benefit from protected rights include among others:
- existing licensed abstractors;
- persons abstracting less than 20m3 in a 24hour period from inland waters for agricultural or domestic purposes; and
- persons abstracting less than 20m3 in a 24hour period from underground strata for domestic purposes.
Please note that mineral operators carrying out dewatering operations under the existing legislative exemption are not holders of protected rights. Derogating from a protected right means preventing the protected right from being exercised by its owner to its full extent.
Protected rights in some cases may lead to refusal of a licence. If the grant of an abstraction licence will prevent a person with a protected right from being able to exercise the full extent of their right, their consent will be required before the EA may grant the abstraction licence. If they refuse to give their consent the EA is unlikely to grant the licence.
Impact on abstraction licence applications for dewatering activities
This rule is unlikely to cause a problem for a quarry operator making an abstraction licence application after April 2009 if the quarry has been dewatering under the legislative exemption for some period of time and there have been no complaints from other persons in the locality who benefit from protected rights.
But it has to be remembered that the abstraction application will need to include environmental impact information about the activity.
Until the application for the abstraction licence is made, it is unlikely that anybody will have made a detailed analysis of the impacts of the dewatering on surrounding abstraction activities – it may turn out that, upon such analysis, problems do in fact come to light.
However there is a very important and little-known provision in the Water Act 2003 which will greatly assist quarry operators. This provision (s102(5)) states that the duty on the EA not to grant an abstraction licence that derogates from any protected rights may be avoided where an abstractor – such as a quarry operator – is simply applying for a licence to allow it continue the same abstraction/dewatering activities that were ongoing before the legislative exemption was removed.
In this situation, the existence of other persons’ protected rights cannot prevent the EA from granting an abstraction licence.
Practical impact
In order to be sure of reaping the benefit of this provision, an operator will need to have data to demonstrate to the EA the extent of its dewatering activities prior to the exemption being removed.
With such data the operator will be able to ensure that the EA will not be entitled to use other persons’ protected rights as a bar to the grant of an abstraction licence permitting abstraction to that extent.
The longer the period for which the data are collected, the better. This is because if dewatering at a quarry varies over time – seasonal variation, for example – it is envisaged that it will be helpful to have data reflecting those variations as it may then be possible to persuade the EA to apply the benefit of s102(5) to the maximum extent of dewatering, rather than the extent of dewatering undertaken immediately prior to April 2009.
There are also further implications. If a quarry operator anticipates that at some point in the future the dewatering at the quarry will need to increase, he would be well advised to consider whether that increase could take effect in the lead up to the removal of the exemption in April 2009 – for example, by altering the way in which quarry reserves are extracted. If this were possible, the operator could then apply for an abstraction licence after April 2009 to cover that greater level of dewatering, again safe in the knowledge that the rights of protected persons cannot stand in his way.
If, by contrast, the operator obtains an abstraction licence after April 2009 and then later tries to amend it to allow greater levels of dewatering, the rights of protected persons will then become relevant and could stand in his way.
Protection of the environment
Protection of the environment will be the other main factor for the EA to consider when assessing a licence application.
Environmental Impact Assessment
It will almost certainly be necessary for environmental impact assessment information to be provided to the EA by mineral operators who are seeking an abstraction licence for dewatering.That information will have to be taken into account by the EA before the licence can be granted.
The precise legal basis for this will depend on individual circumstances. In some situations the environmental impact assessment regime under the EIA Directive 85/337/EEC (as amended by Directive 91/11) may apply, as implemented in England and Wales by the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (EIA Regs).
In other situations environmental impact assessment information may be required by the EA under the Water Resources (Abstraction and Impounding) Regulations 2006 which prescribe the manner in which an abstraction licence must be made. These regulations make clear that the EA has a discretion as to the nature and content of the information it would require in relation to an abstraction licence application and could require environmental impact assessment information be provided.
Appropriate assessment
If an operator’s quarry is within or near to a designated Special Protection Area (SPA) under the EU Birds Directive or a designated Special Area of Conservation (SAC) under the EU Habitats Directive then a licence application will be complicated by legislation which protects those sites.
The Conservation (Natural Habitats Etc) Regulations 1994 implement these directives in England and Wales and require that an appropriate assessment must be undertaken by the EA where activities which are the subject of an application for an abstraction licence are "…likely to have a significant effect on a European site either alone or in combination with other plans or projects".
The appropriate assessment considers the features for which the site is designated and looks at the impacts specifically on those features.
Under this regime, unless the EA can conclude that there will be no adverse impacts on the integrity of the site, the application will be refused except where there are no satisfactory alternatives and the abstraction licence is needed for imperative reasons of overriding public interest, and where compensatory habitat is then provided by the operator.
Practical difficulties
In relation to both EIA and appropriate assessment, the process may run into some difficulties. One issue relates to the baseline data against which to measure any impact.
Given that the abstraction licence application will in many situations simply be requesting consent for exactly the same activity as has been ongoing for a period of time in the past – in other words, under the exemption – one can see the argument from such operators that there will be no environmental impact – or the activities are simply continuing as they were before and so there is no change from the baseline.
However this may be rejected by the EA. It may expect the operator to make an assessment of the impact, taking as the baseline the pre-abstraction position. If this is the case, it will be difficult for many operators as it is highly unlikely that they will have data reflecting the environmental situation prior to dewatering.
Similarly, the EA will no doubt refer to its Catchment Area Management Strategies (CAMS) for the relevant area. These documents represent the EA’s view as to how much water is available for use in certain catchments, given environmental and other constraints, and are referred to when abstraction licence applications are made.
Some CAMS make it clear that there are areas where there is no water available. If an operator is applying for a licence to abstract in such an area, he may face opposition based on this document. However, an operator may well object to any such opposition where the licence application is simply requesting permission to do as it has been doing for some time previously.
So, to conclude...
The need to obtain after April 2009 an abstraction licence for quarry dewatering is likely to create some significant headaches for some quarry operators. But if operators take steps now to monitor carefully their dewatering activities in the run up to April 2009 and to consider adjusting their working of the quarry to take advantage of certain helpful legislation, then the process may be made somewhat easier.
Penny: 0114 283 3353