House of Commons - Explanatory Note
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Clause 60 and 61: The Drinking Water Inspectorate

318.     Clause 60: The Chief Inspector of Drinking Water and the Drinking Water Inspectorate. This clause amends section 86 of the WIA which enables the Secretary of State to appoint persons to act as what are currently described as "technical assessors" for the enforcement of water quality. The amendments reflect the fact that such assessors are more generally known as the Drinking Water Inspectorate.

319.     Subsection (3) enables the Secretary of State to designate one inspector as the Chief Inspector of Drinking Water; for the Assembly to designate a Chief Inspector of Drinking Water for Wales if the relevant functions are transferred to the Assembly; and, where the same person is designated to act in both capacities, for that person to be known as the Chief Inspector of Drinking Water.

320.     Subsection (7) increases from £5,000 to £20,000 the maximum penalty available in the magistrates' court for the offence of failing to provide inspectors with assistance or information, and enables cases to be brought on indictment before the Crown Court, where the offence is punishable by a fine.

321.     Subsection (8) enables the Chief Inspector of Drinking Water to institute prosecutions, in relation to drinking water quality, in his or her own name.

     322.     Clause 61: Fluoridation of Water supplies. The current provisions within section 87 to 91 allow health authorities to request water undertakers to fluoridate water supplies but place no duty on water undertakers to accede to such requests. This clause replaces sections 87 and 89 to 91 of the WIA (fluoridation of water supplies at the request of health authorities). These provide for fluoridation of water supplies where Strategic Health Authorities (in relation to England) and the National Assembly for Wales (in relation to Wales) make arrangements with undertakers.

323.     New section 87 puts water undertakers under a new statutory obligation to accede to requests from Strategic Health Authorities (in relation to England) and the National Assembly for Wales (in relation to Wales) to enter into arrangements to fluoridate water supplies. Water undertakers are not required to enter into arrangements unless an indemnity under new section 90 has been given.

324.     New subsection (5) restates that the concentration of fluoride in the water supply shall be maintained at a target concentration of one milligram per litre. New subsection (8) provides that the relevant authority shall consult with the Water Services Regulation Authority in relation to the terms to be included in the agreement, particularly those which affect the operation of the water undertaker's supply system.

325.     New subsection (9) prohibits any person from increasing the fluoride concentration of water supplies outside the arrangements of section 87 but provides for two exceptions. The first is where an increase in fluoride may be made by a third party on behalf of the undertaker. This would allow a licensed water supplier who operated its own water treatment works to fluoridate supplies in accordance with the arrangements where it had agreed with the water undertaker to do so. The second is where a water undertaker may effect a small incidental increase in the concentration of fluoride in the water supply of an area, where for operational reasons, it is required to introduce water that may have a higher natural fluoride concentration.

326.     New section 87A introduces provision for determination of terms, where the relevant authority and a water undertaker fail to agree the terms of an arrangement to fluoridate.

327.     New section 87B restates the two chemical compounds which are permitted to be used in fluoridating water supplies and also allows water companies to supply fluoridated water in areas not covered by arrangements under section 87 where it is necessary to do so to due to operational constraints such as dealing with serious deficiency in supply.

328.     New section 88A introduces new regulation making powers for the Secretary of State (and by virtue of the National Assembly for Wales (Transfer of Functions) Order 1999, the National Assembly for Wales) to reduce the target concentration of fluoride to below one milligram per litre. This might be appropriate if, for example, it was found that as a result of increased use of discretionary fluorides like toothpaste, the desired reductions in tooth decay could be achieved at lower concentrations of fluoride in the water supply.

329.     New section 89 provides for consultations. It introduces new regulation making powers for the Secretary of State (and the National Assembly for Wales) to make regulations on the consultation process which relevant authorities will have to follow before requesting water undertakers to enter into arrangements or varying or terminating them.

330.     New section 90 provides for the Secretary of State (with the consent of the Treasury) and the National Assembly for Wales, to indemnify water undertakers in respect of liabilities which they may incur in complying with the arrangements for fluoridation and introduces a new regulation making power enabling the Secretary of State (and the National Assembly for Wales) to make provision in relation to the matters in respect of which an indemnity may be given and the forms and terms of such indemnity.

331.     Subsections (7) and (8) repeal the provisions of section 91 of the WIA and Schedule 7 to the WIA that related to pre-1985 fluoridation schemes.

Clause 62: Water Resale

332.     Clause 62: Charges for services provided with the help of an undertaker. This clause gives the Authority the power to offer greater financial protection to persons paying for water or sewerage services provided with the help of (but not by) a water or sewerage undertaker. This brings the protection that may be offered to these customers closer into line with that offered to customers in the case of the resale of gas and electricity.

333.     The Director has existing powers to make an order fixing maximum charges for water resale in section 150 of the Water Industry Act 1991. The clause adds further powers:

  • to order that interest be recoverable on any excess charge that is to be repaid and, if he exercises this power, to specify or describe the rate of interest;

  • to require any person providing water supplies or sewerage services with the help of an undertaker to provide specified or described information to the person who pays the charges; and

  • to specify a maximum price or to specify an amount or percentage reduction in the maximum price to apply in the event of failure to give information as required by an order.

Clause 63 and 64 : Penalties

334.     Clause 63: Abstraction and impounding offences. This clause amends sections 24(5)(a) and 25(3)(a) of the WRA so that the maximum penalty available to a magistrate's court for offences of abstracting or impeding water without a licence where one is needed, or doing so in contravention of a licence condition, is increased from £5,000 to £20,000. Proceedings can also be brought in the Crown Court, where the penalty on conviction would be an unlimited fine.

335.     Clause 64: Supplying water unfit for human consumption. This clause increases from £5,000 to £20,000 the maximum penalty available to a magistrates' court for the offence created under section 70(1) of the WIA where a water undertaker supplies "water by means of pipes to any premises and that water is unfit for human consumption". Proceedings can also be brought in the Crown Court, where the penalty on conviction would be an unlimited fine. This offence is also extended to other persons under paragraph 20 of Schedule 8 to the Bill.

Clauses 65 : Water Resources Management Plans

336.     Clause 65: Water Resource Management Plans. This clause places water undertakers under a duty to produce water resources plans and to publish and consult upon those plans. The duty requires that undertakers plan for demand in the medium and long term and for how to meet that demand. Water resource management plans will be subject to annual review and have to be revised every five years, or in any case where the annual review indicates a material change in circumstances or the Secretary of State directs that a revised draft should be prepared. There are powers for the Secretary of State (or the Assembly) to prescribe in a direction the matters that plans must address and the form that they are to take. Licensees (i.e. new entrants to the competitive regime for the supply of water) have to provide information required by undertakers to prepare their plans. The clause also sets out the procedures for publication and consultation that must be followed in the production of these plans.

Clauses 66 to 68 : Drought

337.     Clause 66: Drought plans. Water undertakers are required to prepare, maintain and publish drought plans. A drought plan should set out how the undertaker will continue to meet its duties to supply adequate quantities of wholesome water during drought periods with as little recourse as possible to drought orders or drought permits. Drought plans must be revised every three years or if there is a material change in circumstances or the Secretary of State otherwise so directs. Licensees have to provide information required by undertakers to prepare their plans. The procedures for publication and consultation are the same as those for water resources management plans

338.     Clause 67: Drought orders and drought permits: charges. Current legislation allows a water company to apply to the EA for a drought permit where, by reason of an exceptional shortage of rain, a serious deficiency of water supplies exists. Similar powers enable an application to be made to the Secretary of State/National Assembly for a drought order. A drought order or permit allows a water company to meet that deficiency by allowing it to abstract more water from existing and additional sources. This clause enables the Agency to recover from a water company any expenses it incurs in connection with any application by that company for a drought order or permit, including those relating to any local inquiry that is held, and in connection with any such order or permit if it is subsequently issued. This may include, for example, costs of additional environmental monitoring to establish the effects of the permit or order. The Clause also repeals sections 77(4) and 79A(8) of the WRA to make it clear that sections125 to 129 do not apply to these charges.

339.     Clause 68: Procedure at local inquiries. Where there has been an exceptional shortage of rain causing a serious deficiency in water supplies then, under present arrangements, any water company or the EA can apply to the Secretary of State for a drought order. The Secretary of State may direct that a public inquiry be held into such an application.

     340.     The Local Government Act 1972 sets certain rules about the attendance of witnesses and the awarding of costs for inquiries. This clause applies those rules in respect of the conduct of inquiries into drought orders.

Clauses 69 to 72: Land Drainage and Flood Defence

341.     Clause 69: Revocation of local flood defence schemes. This inserts a new section 18A into the Environment Act 1995 (which extends to the whole of Great Britain) to enable the Minister, by order made by statutory instrument, to revoke any local flood defence scheme and make provision for supplementary purposes. These include altering the number of members of the regional flood defence committee in whose area the local flood defence scheme was situated, and adjusting the members appointed by constituent councils to the regional committee.

342.     Clause 70: Membership of regional flood defence committees in Wales. . This clause inserts new sections 16A and 16B into the Environment Act 1995. New section 16A enables the National Assembly for Wales, by order made by statutory instrument, to make provision determining the total number of members, and the method of selection and appointment of the chairman and other members of Welsh regional flood defence committees, and to make provision for such supplementary purposes as the National Assembly for Wales considers appropriate. Where a Welsh Committee is not wholly in Wales then this power may only be exercised with the agreement of the Secretary of State. New section 16B disapplies the provisions of sections 15, 16 and 18A(3) of the Environment Act 1995 (which make provision as to the membership of regional flood defence committees) where an order under section 16A is in force. It also ensures, by modifying section 18 and Schedule 5 of the Act, that the composition of local and regional committees is not incompatible in such circumstances.

343.     Clause 71: Regional flood defence committees. This clause amends paragraph 1 of Schedule 4 to the 1995 Act to enable the relevant Minister to make orders which establish a new regional flood defence committee for such area as may be specified in the order, or to abolish a regional flood defence committee.

344.     Taken together, clauses 69 and 71 enable Ministers to abolish some or all of the present local flood defence committees in order to establish a single tier of regional flood defence committee in that region. Orders abolishing the local committees may adjust the membership of the "parent" regional flood defence committee. They also provide powers to create new and additional regional committees and abolish existing regional committees. Paragraphs 2 to 6 of Schedule 4 to the 1995 Act set out the procedures for making orders under that Schedule, including those under the extended paragraph 1. These procedures are also being applied to orders under the new section 18A.

345.     Clause 72: Grants for drainage works and flood warning systems. Ministers currently make grants to the EA for drainage (which includes flood defence) and flood warning purposes under sections 147-149 of the Water Resources Act 1991. Those powers require each project to be approved individually; it is not open to Ministers to make block grants to the Agency for these purposes. A general power for Ministers to make grants to the Agency exists under section 47 of the Environment Act 1995 but the existence of the specific powers in sections 147-149 of the 1991 Act may give rise to uncertainty as to whether the general power is intended to be capable of being used to make block grants to the Agency for drainage or flood warning purposes. This clause therefore repeals sections 147-149 so as to remove any doubt that drainage and flood warning grants to the Agency may be paid under section 47 of 1995 Act (with the agreement of the Treasury). The clause makes consequential amendments to sections 165(4), 166(4) and 221(1) of the WRA which refer to the repealed provisions. The Land Drainage (Grants) Regulations 1967 will automatically lapse with the repeal of these sections.

Clause 73: Information

     346.     Clause 73: Information. This clause amends the WRA to strengthen the Agency's powers to require information about abstractions, impounding and any related matters, in support of its water resource management functions. For abstractions or applications to abstract, or the transfer or apportionment of a licence, this includes information on the abstraction and the use of the water to be abstracted. For impounding or applications to impound, this includes the impoundment and the way in which it is operated. This will bring the existing powers to require information with respect to any abstraction in line with existing powers to seek information in connection with the control of pollution. The penalty for non-compliance is increased.

Clause 74: Powers of entry

347.     Clause 74: Extension of Environment Agency's powers of entry. Existing legislation provides the EA with powers of entry to premises to carry out inspections to confirm that all legislative requirements are being complied with. These powers are wider in respect of the Agency's water pollution functions, where they allow the installation of monitoring and other apparatus and the carrying out of experimental borings or other works. This clause extends these wider powers to all of the Agency's functions.

Clause 75: Environment Agency's general water resource duty

348.     Clause 75: Efficient use of water resources. Under the provisions of the Environment Act 1995 the Environment Agency has a general duty to secure the proper use of water resources in England and Wales. This clause makes it clear that this includes a duty to secure the efficient use of those water resources.

Clause 76: Border Rivers

349.     Clause 76: Border rivers. The Agency's abstraction and impoundment regulatory controls do not apply to certain rivers and their tributaries on the border between England and Scotland. The waters concerned include the River Tweed, which because of its definition includes the River Till situated largely in England, and the Rivers Esk and Sark and certain of their tributaries. The clause amends the WRA to apply these controls in the English parts of those river catchments.

Clauses 77 to 83: Reservoirs

350.     Clause 77: Environment Agency to be enforcement authority under the Reservoirs Act 1975. Enforcement within England and Wales of the provisions of the Reservoirs Act 1975 (which covers the whole of Great Britain) currently falls to some 140 local authorities. This clause transfers enforcement functions in relation to England and Wales to a single body, the EA.

351.     Clause 78: Extension of enforcement authority's reserve powers. Enforcement authorities have reserve powers that may be used in certain circumstances where reservoir undertakers have failed to comply with their responsibilities under the 1975 Act. For example, these powers may be used where, having failed to comply with a notice served by the authority, the undertaker refuses to implement recommendations made by a panel engineer in the interests of safety. This clause enables the enforcement authority to step in and arrange for the works to be executed and to charge the costs of doing so to the undertaker. The reserve powers are not presently available in respect of reservoirs that are under construction or being enlarged and this clause extends the power to encompass such cases. This clause applies in England and Wales.

352.     Clause 79: Service of documents. The amendments made by this clause are consequential on provisions made by clause 77.

353.     Clause 80: Flood Plans: large raised reservoirs. The Reservoirs Act 1975 makes provision in respect of escapes of water from large raised reservoirs. The emphasis of the current legislation is on prevention of escapes. But with uncertainties over the future implications of climate change and rainfall patterns further flexibility within this safety legislation, in the Government's view, should be available. Some reservoir owners already prepare flood plans voluntarily. This clause enables the Secretary of State (or the NAW), after consultation with all interested parties, to issue a direction to the owner of a large raised reservoir in England or Wales requiring the preparation and dissemination of such a plan. The Secretary of State may also issue directions to reservoir undertakers in Wales where the Assembly has not itself done so but where it is considered necessary in the interests of public safety in England.

354.     Clause 81: National Security. This clause provides for the exclusion from the registers, maintained under section 2 of the 1975 Act of information that is prejudicial to the interests of national security. It also imposes restrictions on consultation and publication arrangements in clause 80where the Secretary of State (or Assembly) considers it necessary to do so in the interests of national security. The restrictions on publication may extend to flood plans other than those prepared under clause 80 and restrictions may also limit access to any flood plans. Failure by an undertaker to comply with a notice issued under this clause will be a criminal offence.

355.     Clause 83: Crown application. Although exempt from the provisions of the 1975 Act, Crown bodies have acted as though bound by the Act. This clause formally extends the Act to the Crown in England and Wales.

Clause 84 and 85: Water Conservation

356.     Clause 84: Water conservation: requirements on relevant undertakers. This clause amends the WIA, adding to water undertakers' general environmental duties in relation to their functions the duty to further water conservation. The new duty applies when undertakers formulate or consider any proposals relating to any of their functions.

357.     Clause 85: Water conservation by public authorities. This clause requires all public authorities, as defined in the clause, to take into account, where relevant, the desirability of conserving water supplied to premises. This applies to both their actual use of water and where their functions might have an impact on water use. This is not intended to restrict justifiable water use, but to raise the profile of water conservation in the development of policies and activities.

Clause 86: Fire Hydrants

358.     Clause 86: Fire-hydrants. This clause amends section 57 of the WIA.

359.     Subsection (1) adds a new subsection 4A to section 57 of the 1991 Act and makes water companies (rather than Fire Authorities) liable for the cost of replacing fire hydrants that they remove when renewing or renovating water mains.

360.     Subsection (2) adds a new subsection 4A to section 58 of the 1991 Act and makes water companies (rather than the owners of businesses or factories) liable for the cost of replacing fire hydrants that they remove when renewing or renovating water mains.

Clause 87: Coal Mine Water Pollution

361.     Clause 87: Control of water from coal mines. This clause amends the Coal Industry Act 1994 in respect of England & Wales.

362.     Preventing and cleaning-up coal mine water pollution from abandoned mines is a major environmental activity for the Coal Authority which has been running for a number of years. The programme has been run on a non-statutory basis and receives funding from the DTI.

363.     Minewater pollution has always been an important issue for the Coal Authority. In view of the increasing expenditure on this programme, and the possibility that the programme may be transferred to a successor body, it is, in the Government's view, important that the programme should be put on a statutory basis.

364.     The DTI would therefore like the Coal Authority to have statutory powers to underpin the programme and to have powers to prevent or control water emanating from any abandoned coal mine onto land or into any controlled waters. In this respect, controlled waters means any rivers, estuaries, coastal waters or groundwaters.

365.     In addition to the powers to prevent or control water emanating from abandoned coal mines, it is also proposed to give the Coal Authority powers to enter land to drill boreholes and install monitoring and other equipment. This allows the Coal Authority to investigate and deal with any polluting water from coal mines that poses a serious threat to the environment or human health. Powers are also provided for the Coal Authority to compulsorily buy land to prevent or treat water pollution from abandoned coal mines.

366.     The proposal puts the powers on a statutory footing, and operates under powers contained in the Coal Industry Act 1994 unlike the EA who operate under its pollution control powers in the WRA. The work of the Agency is not be affected by this proposal and while the Coal Authority's powers are similar to those of the EA they work independently.

367.     A memorandum of understanding already exists between the Coal Authority and the Agency which sets out the mechanics of tackling these operations and ensures that the EA is kept fully informed of the Coal Authority's activities.

Clause 88: Contaminated Land

368.     Clause 88: Contaminated land: pollution of controlled waters. A regime for identifying and dealing with land contamination causing unacceptable risks to human health and the environment was introduced in England in 2000 (in Wales, 2001). Local authorities are under a duty to identify such land and secure its remediation, subject to detailed rules. Land in such a condition that pollution of controlled waters is being caused is included, but it became clear that this could include some very minor cases, resulting in an inconsistent approach as between land and water in relation to the degree of risk being addressed by the regime.

369.     To resolve this difficulty, this clause amends the second limb of the definition of "contaminated land" in Section 78A of the Environmental Protection Act 1990 so that it applies only where significant pollution of controlled waters is being caused, or there is a significant possibility of such pollution being caused. It also provides powers for the Secretary of State to issue guidance on the amended definition and alters the position of "ground waters" in relation to the term "pollution of controlled waters".

Clause 89: Discharge consents

370.     Clause 89 : Transfer of discharge consents. It is an offence under the WIA to discharge sewage or trade effluent into controlled waters (i.e. rivers, estuarial, coastal or groundwaters) without permission from the EA.

371.     Anyone wishing to discharge effluent into controlled waters in England and Wales must therefore first make an application to the EA. The EA carries out a statutory application process which involves public newspaper advertising and consultation before it considers whether or not to approve an application.

372.     If the EA decides to approve an application it may issue a discharge consent which sets out the terms of the discharge. In addition, each discharge consent will contain a number of specific conditions which the consent holder must meet. Failure to meet the terms of the consent or any of the conditions is a breach of consent and could lead to enforcement action by the EA.

373.     The legislation includes provisions which allow the transfer of a discharge consent to another person who proposes to carry on the discharge in place of the existing holder. This is to cover situations where, for example, ownership of a factory may have changed hands, but the manufacturing process remains the same, as does the nature of the discharge.

374.     The EA has encountered some difficulties in registering these transfers due to the lack of a statutory procedure.

375.     This clause amends paragraph 11 of Schedule 10 to the WRA and provides for a joint notice procedure, including any prescribed information and that if notice is duly given, the Agency shall effect the transfer.

376.     Schedule 10 to the WRA also contains provisions which set out the position on the transfer of a consent where death of the consent holder occurs, or where the consent holder becomes insolvent or bankrupt and action is taken against them. In its present form, paragraph 11 of Schedule 10 provides that consents cannot be disclaimed. This section serves no useful purpose since the Agency already has appropriate powers to deal with any problems that might arise either as a breach of conditions or if an illegal discharge is made. This clause therefore also repeals paragraph 11(4) of Schedule 10.

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Prepared: 18 July 2003