New section 61ZB No compensation where variation to remove excess headroom: England
768 New section 61ZB provides that permanent abstraction licences in England can be varied on or after 1 January 2028 without the payment of compensation where at least 25% of the licence volume remains unused for at least 12 years before the date the Environment Agency makes a proposal to vary or revoke the licence, as long as the Secretary of State is satisfied that the variation or revocation does not reduce the quantity of water the licence holder is authorised to abstract to a level below that which the holder reasonably requires.
769 Subsection (1) sets out that the section only applies to relevant licences that are varied or revoked on or after 1 January 2028 pursuant to a direction made by the Secretary of State under section 54, following a licence change proposal by the Environment Agency.
770 Subsection (2) defines the term "relevant licence" used in subsection (1). A relevant licence is a licence (a) that allows abstraction in England only, and (b) that does not have a time-limit – that is, one that would remain in force indefinitely unless revoked, commonly known as a permanent licence. As a result, licences that allow abstraction in Wales and licences with a time-limit are not affected by the provisions.
771 Subsection (3) provides that no compensation is payable under section 61 to the licence holder, if (a) the licence holder has abstracted 75% or less of the annual licensed volume in each of the 12 years preceding the relevant date, and (b) the Secretary of State is satisfied that the variation would not reduce the quantity of water that the licence holder reasonably needs.
772 Subsection (4) defines the term "relevant date" used in subsection (3). The relevant date is the date when the Environment Agency serves notice on the licence holder that it proposes to change the licence. It is the end of the 12-year period used to calculate under-use.
773 Subsection (2) of clause 78 amends section 27 of the Water Act 2003 so that on or after 1 January 2028 it will only apply to licences that fall within the definition of a relevant licence as defined in new section 61ZA(2) of the Water Resources Act 1991 – that is, permanent licences that authorise abstraction in England. Section 27 will not apply to relevant licences on or after 1 January 2028, but will continue to apply to relevant licences up to and including 31 December 2027.
774 Subsection (3) of clause 78 omits paragraph 30(4) of Schedule 8 to the Water Act 2014, so that the legislative changes introduced in this Bill can be incorporated into the new Environmental Permitting Regulations regime. In future, it is intended that the water abstraction licensing regime will be moved into to the Environmental Permitting Regulations regime under the Environmental Permitting (England and Wales) Regulations 2016. Making this change should ensure that the abstraction licensing regime is consistent with the regulation of other activities affecting the environment. The powers under which the regulations will be made include Schedule 8 to the Water Act 2014.
Clause 81: Water quality: powers of Secretary of State
775 Subsection (1) provides a regulation–making power for the Secretary of State to make provision about the substances to be taken into account in assessing the chemical status of surface water or groundwater, and to specify standards for those substances, or in relation to the chemical status of water bodies. This will enable updates to the substances and standards currently used in that process, for example those set out in the list of priority substances and priority hazardous substances for surface waters in the domestic legislation which implements the Environmental Quality Standards Directive. The power can only be used to amend or modify the existing water quality legislation relevant to chemical status, listed in subsection (2).
776 Subsection (1)(a) would allow an entirely new substance to be included in the legislation, or the removal of an existing substance. Subsection (1)(b) allows the environmental quality standard (EQS) to be set for a substance, or for an existing EQS to be modified.
777 Subsection (3) enables additional provision that may need to be introduced as a result of exercising the powers under subsection (1). This may include, for example, specifying a date by which a standard for a specific substance must be achieved, changes to monitoring regimes to cover newly specified substances, or new measures to be introduced into river basin management plans in respect of such substances.
778 Subsection (4) establishes that the Secretary of State can only exercise the powers in this section to make provision that could be made by the Welsh Ministers or Northern Ireland Department of Agriculture, Environment and Rural Affairs under their own powers in clauses 82 and 83 respectively with their consent.
779 Subsection (5) establishes that the Secretary of State cannot exercise the powers in this section to make provisions which would fall within the Scottish Parliament’s devolved competency, given effect by powers under an Act of that Parliament, with the exception of parts of the cross border river basin districts lying in Scotland, where the Secretary of State could exercise the powers to make provisions but only with Scottish Ministers’ consent.
780 Subsection (6) establishes the consultation requirements attached to the exercise of the powers. Paragraph (a) requires the Secretary of State, regarding regulations applying to England, to consult with the Environment Agency, which provides expert scientific opinion. Paragraph (b) requires the Secretary of State to consult with Welsh Ministers when making regulations applying to an England and Wales cross-border River Basin District (RBD) that lies in England, and when the Welsh Ministers’ consent is not required under subsection (4). This would mean consultation is only required if the provision being made is only for the English part and does not apply to the part in Wales. Paragraph (c) places the same consultation requirements on the Secretary of State in relation to the cross-border RBDs shared with Scotland.
Clause 82: Water quality: powers of Welsh Ministers
781 Clause 82 confers a regulation, broadly comparable to that in clause 81, on the Welsh Ministers in relation to Wales. Subsection (4) requires consultation with the Natural Resources Body for Wales, other interested persons or bodies, and with the Secretary of State when exercising the power in relation to the Welsh part of a cross-border RBD.
Clause 83: Water quality: powers of Northern Ireland department
782 Clause 83 confers the same power on the Department of Agriculture, Environment and Rural Affairs in relation to Northern Ireland.
Clause 84: Solway Tweed river basin district: power to transfer functions
783 Clause 84 confers a power to be exercised by the Secretary of State to amend the Water Environment (Water Framework Directive) (Solway Tweed River Basin District) Regulations 2004 ("the Solway Tweed Regulations") to allow future changes to the exercise of functions in the Solway Tweed River Basin District.
784 Subsection (3) enables regulations to be made that provide for functions under the Solway Tweed Regulations to be exercised in a different manner. For example, it would enable changes to functions that are currently joint between the Secretary of State and Scottish Ministers for the whole of the river basin district.
785 Subsection (4) would allow amendments to the functions of the Environment Agency and Scottish Environment Protection Agency. These could be split to enable, for example, monitoring of English water bodies by the Environment Agency alone.
786 Subsection (5) allows for changes to the geographical area in which the functions can be exercised. For example, the functions could be amended so that in future they are exercised by the Secretary of State alone in relation to the English part, and the Scottish Ministers alone in the Scottish part.
787 Subsection (6) would enable requirements to be imposed on such functions so that they are exercisable with the consent of the Secretary of State or the Scottish Ministers, or after consultation.
788 Subsection (7) requires the consent of the Scottish Ministers for any regulations under this clause.
789 Subsection (8) states that regulations made under this clause are subject to the negative procedure.
790 Subsection (9) provides a definition.
791 This clause forms part of the law of England and Wales and Scotland, and applies to the area of the Solway Tweed river basin district which is partly in England and partly in Scotland.
Clause 85: Water quality: interpretation
792 This clause contains definitions used in the clauses on water quality.
Clause 86: Valuation of other land in drainage district: England
793 Clause 86 amends section 37 of the Land Drainage Act 1991 ("the LDA"), enabling the Secretary of State to make regulations, by the affirmative procedure, that establish the valuation calculation for the value of other land in an internal drainage district in England. Subsection (3) makes the main changes by inserting new subsections (5ZA) to (5ZH) into the LDA.
794 Setting out the valuation calculation in regulations is appropriate and proportionate, because these provisions deal with details of a subsidiary and technical matter and, accordingly, it is anticipated that these details will need to be updated again in future. By enabling the technical implementation of this policy to be set out in secondary legislation, future governments will be better able to make any future necessary updates in a timely manner.
795 New subsection (5ZA) provides the power for the Secretary of State to make such regulations.
796 New subsection (5ZB) sets out the provisions that the regulations may include when setting out the new valuation calculation. Paragraphs (a) to (g) detail the different components of calculations for the different types of land that comprise other land under the LDA, ensuring that the Secretary of State has the necessary powers to stipulate a comprehensive valuation calculation in secondary legislation.
797 New subsection (5ZC) sets out which internal drainage boards (IDBs) the Secretary of State can decide to apply the regulations to. Linked to this, new subsection (5ZD) enables the regulations to allow for an IDB to elect that the regulations apply to them, and for the regulations to specify a procedure for that election. These provisions mean that, where an issue associated with the existing valuation calculation only affects certain IDBs in England, the Secretary of State may provide an alternative calculation that other IDBs may elect to make use of, if they so choose. This is currently necessary because certain data referred to within existing subsection (5) is either missing or incomplete in some areas. However, the provisions also reflect the fact that, in future, the calculation may need to be updated for all IDBs (were an issue within the calculation to affect all IDBs). New subsection (5ZC) therefore enables a calculation stipulated in secondary legislation to be applied to all English IDBs in such cases.
798 Subsection (5ZE)(b) enables the Secretary of State to make changes, as a consequence of these new provisions being added to the LDA. This includes amending, repealing or revoking provisions in primary legislation (pursuant to new subsection (5ZF)).
799 New subsection (5ZG) places a duty on the Secretary of State to consult such persons (if any) as are considered appropriate, taking into account the extent to which the regulations are likely to affect the valuation of other land.
Clause 87: Valuation of other land in drainage district: Wales
800 Section 83 of the Environment (Wales) Act 2016 conferred powers on Welsh Ministers to make regulations which establish a valuation calculation for other land in respect of internal drainage districts in Wales. These powers are similar to those conferred on the Secretary of State in England under clause 86 above.
801 Clause 87 makes minor amendments to section 83 of that Act, with one key substantive amendment set out below.
802 Subsection (2)(b)(iii) inserts new subsection (5D) into section 37 of the Land Drainage Act 1991, which places a new duty on Welsh Ministers to consult such persons (if any) as are considered appropriate, taking into account the extent to which the regulations are likely to affect the valuation of other land. The existing subsection (5D) is renumbered as new subsection (5E).
Clause 88: Valuation of agricultural land in drainage district: England and Wales
803 Clause 88 inserts new section 41A into the Land Drainage Act 1991 ("the LDA"), which enables the appropriate national authorities (the Secretary of State in respect of internal drainage districts in England, and Welsh Ministers in respect of internal drainage districts in Wales) to make regulations that establish the valuation calculation for the value of chargeable property (agricultural land and buildings) in an internal drainage district.