The Water Bill
Anwen Hughes and Sue Paterson from Carl Bro — consultants and engineers, take the lid off the new Water Bill and consider how quarry operators in England and Wales might prepare.
The scope of the Government’s proposed Water Bill reforms, and their implications for regulation of water abstraction in the mineral extraction industry, will mean that quarry operators and their advisors will need to watch the progress of the new Water Bill very closely.
In July 2003 the new Water Bill completed its initial sessions in the House of Lords and moved to the House of Commons. The new legislation forms part of proposed reforms to the water-abstraction licensing regime in England and Wales, which represent the most significant changes to the system since the initial framework was put in place in the 1960s. In Scotland, new primary legislation1 including the introduction of provisions for the control of water abstraction has already been introduced and secondary legislation is awaited.
The new Water Bill contains clauses which will affect quarry and mine operators who currently perform licence-exempt dewatering activities or hold an abstraction licence for other purposes. The details of the Bill are subject to amendment, however the Government’s overall intentions were published following public consultation in ‘Taking Water Responsibly’2 and in its response to consultation on the draft Bill3.
Under current legislation in England and Wales, abstractions for dewatering mineral excavations and mines are exempt from licensing requirements, although some regulatory control of the impact of new dewatering activities is currently made through existing planning and water resources legislation; in particular, through Section 106 planning agreements via the local planning authority, or through Conservation Notices which can be issued by the Environment Agency.
Clauses in the Water Bill remove the licence exemption for dewatering operations but under the proposed reforms, dewatering in emergencies will still be exempt subject to the Agency being notified within five days. It is expected that the new types of ‘transfer licence’ are most likely to be relevant to dewatering operations. The Government’s Water Bill consultation document3 indicated that a ‘transfer licence’ would apply to abstraction from one source of supply to another without intervening use. For example, transferring water from an excavation to a watercourse. The practical implementation of licences for dewatering activity and other associated uses (such as mineral washing) will no doubt be subject to the details of future Agency policy and guidance.
The Agency has published a briefing document on ‘Dewatering’ containing general statements on its position with respect to removal of the exemption. This indicates that operators will have a two-year transitional period in which to submit applications and the Agency will then have up to five years to determine all applica-tions. However, in ‘exceptional cases of environmental concern’ the Agency may give earlier notice of its intention to seek curtailment of an abstraction. Applicants who are dissatisfied with the Regulator’s decision will have the right to appeal. Once final details of the legislation are known the Agency intends to discuss the issues arising from the new regime with representatives of the industry and also consult with them during development of the transitional arrangements.
The briefing document does not give details on information required to support an application. If the requirements are similar to the existing system, applicants will be expected to provide details of the abstraction arrangement and show that there is a reason-able need for the volume of water being applied for. In addition, submission of information on local water features (including other abstractions) and, for groundwater abstraction, pumping tests will also be required. The Agency may then carry out its own detailed assessment of the potential environmental impacts or in some cases (eg large-scale abstractions or those in environmentally sensitive areas) require the applicant to submit an assessment for Agency review as part of the licence assessment. It may be that, for dewatering activities, desk- and field-based hydrogeological studies will be required by the Agency to establish the degree of impact on water features and any designated ecologically sensitive sites in the vicinity.
Quarry operators who have been granted planning permissions in the recent past or are subject to a Conservation Notice may already have relevant information available with monitoring and mitigation measures in place relating to their dewatering activity. However, some quarry sites which have been operating on the basis of ‘deemed’ or long-term planning permissions may possess only limited data. Quarry operators should commence reviews or assessments as soon as possible at the commencement of, or even before, the two-year period of ‘grace’ to allow sufficient data to be collected. Early consultation with the Agency to gain an understanding of the expected requirements and specific issues relating to a particular site is advisable.
Payment of compensation for curtailment of abstraction has been a heavily debated issue during the progress of the Bill. Under the current proposals, in some cases if it is considered to be causing ‘serious’ environmental damage, all or part of the existing abstraction may not be authorized. Applicants have the right of appeal and, if upheld, compensation may be payable provided that the operator can demonstrate financial loss. The Agency has a statutory duty to consider the costs and benefits of all its licensing decisions. The Government has stated its intention to make secondary regulations relating to compensation payments where quarry and mine operators are not able to take full advantage of a planning consent where abstraction is curtailed. It has also indicated that further amendments to the Bill addressing issues relating to compensation of quarry and mine operators will be considered.
Reforms under existing legislation and the new Bill also propose changes which will apply to existing licences including time limiting, removal of some compensation rights, and water rights trading.
Current policy on time limiting assumes a normal renewal period of 12 years with shorter or longer time limits in some circumstances at the discretion of the Agency. During the Bill’s passage in the House of Lords, the Government responses to tabled amendments suggest that future policy would continue to operate in a similar form. Potentially the most significant proposal for existing abstractors is to remove, from July 2012, the right to compensation if a permanent licence is curtailed on the grounds that the abstraction is causing ‘serious’ environmental damage.
Trading of water rights involves the transfer of rights from one party to another for ‘benefit’ (including financial benefit). An example of water rights trading could be where an abstractor is not utilizing the full licence volume and applies to the Agency for a variation to reduce the volume allowable under the licence. Another abstractor who has traded with this licensee can apply for a licence to take up these rights. Water rights trading will generally only be possible if the licences relate to the same groundwater unit or surface-water catchment. It is anticipated that markets may be most active where available water resources are limited.
Whatever a quarry operator’s current status, much time and frustration can easily be avoided by employing appropriately experienced consultants to provide guidance through the sometimes muddy waters of current and upcoming legislation.
References
- Water Environment and Water Services (Scotland) Act 2003.
- ‘Taking Water Responsibly’, government decisions following consultation on changes to the water-abstraction licensing system in England and Wales, DETR, March 1999.
- Water Bill Consultation on Draft Legislation: Government Response, DEFRA, May 2002.
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