Instruments drawn to the special attention of the House
Water Abstraction (Specified Enactments) Regulations 2017 (SI 2017/1042)
Water Abstraction and Impounding (Exemptions) Regulations 2017 (SI 2017/1044)
Water Abstraction (Revocations etc.) (England) Order 2017 (SI 2017/1046)
Water Abstraction (Transitional Provisions) Regulations 2017 (SI 2017/1047)
Date laid: 31 October 2017
Parliamentary procedure: negative
Summary: These four sets of Regulations have the combined effect of ending exemptions from the requirement to obtain a licence to abstract water, a system which has been in place since the 1960s. Provisions to remove licensing exemptions were included in the Water Act 2003, and the Government have carried out two consultations about these changes, the first in 2009 and the second in 2016.
It is clear that Defra’s concern to mitigate the impacts on business has been an important cause of the protracted timescale for removing these licensing exemptions, which is being achieved through secondary legislation laid 14 years after the parent Act and five years after a deadline set in an EU Directive. While the Department clearly had to consider the way in which businesses would be affected by the changes proposed, we see no reason why its reflection on the consultation process in 2009 needed to take the best part of a decade to be turned into detailed implementation.
We draw these Regulations to the special attention of the House on the ground that they give rise to issues of public policy likely to be of interest to the House.
Background – water abstraction – licensing system
1.Abstraction, or removal, of water from rivers, lakes, canals, reservoirs or from underground strata is controlled through a licensing system that was introduced by the Water Resources Act 1963 and has been subsequently refined and changed, most recently by the Water Act 2003 (“the 2003 Act”).
Ending licensing exemptions
2.In the Explanatory Memorandum (EM) to these Regulations, the Department for Environment, Food and Rural Affairs (Defra) says that, in England and Wales, there are currently around 5,000 significant water abstractions that are exempt from abstraction licensing, by comparison with around 20,000 abstractors that are licensed. Defra adds that these exemptions create an unfair playing-field, allowing some abstractors to put pressure on the environment and other water users without any controls, while requiring others to carry the burden of addressing these risks. Defra explains that the 2003 Act included provisions to remove licensing exemptions, and that these four sets of Regulations, in implementing the abstraction elements of the 2003 Act, end abstraction licence exemptions.
3.In paragraph 7.4 of the EM, Defra lists the water use activities with significant environmental impacts from which exemptions are being removed, including (for example) all forms of irrigation, other than spray irrigation which is already licensable. Paragraph 7.5 contains a list of the exemptions for abstraction with no significant impacts which are being retained, including (for example) abstraction downstream of the normal tidal limit by navigation, harbour and conservancy authorities. Defra states that it is providing a five-year transitional period to determine all abstraction licence applications: abstractors have two years to prepare and submit an application, and the Environment Agency or the Natural Resources Body for Wales have up to three years to determine licences. Abstractors can continue taking water during this period.
Consultations in 2009 and 2016
4.Defra says that there were two consultations about removing exemptions from abstraction licensing: the first in 2009, which reflected the need to comply with the abstraction-related requirements of the EU Water Framework Directive (“the Directive”: adopted in 2000);1 and the second in 2016. Government responses to both consultations have been published.2 The Department explains that, in general, licensed abstractors and those with an interest in the water environment generally welcomed the changes proposed, while the abstractors whose exemptions would end were concerned about the business impacts; and that, as a result of the 2009 consultation responses and the concern about the business impacts, it proposed a light-touch, risk-based approach to licensing in the 2016 consultation which is now being taken forward.
Length of time
5.We obtained additional information from Defra about the length of time taken to remove these licensing exemptions, which we are publishing at Appendix 1. The Department has said that there was always an intention for the 2003 Act to be subject to phased implementation: the consultation exercise in 2009 made it clear that there was a need for a licensing approach that mitigated the impacts on business, and this in turn required significant research. As regards the Directive, which set a deadline of 2012 for compliance, Defra says that the Commission has asked the UK to explain its general implementation of the EU legislation. The Commission itself, in publicising the reasoned opinion which it sent to the UK in October 2015, said that it wished to ensure that the Directive was correctly enacted in national law, and noted that national authorities in the UK might lack the necessary powers to tackle negative water impacts, a requirement of EU legislation.3 While the Commission did not refer specifically to the removal of abstraction exemptions, it seems clear that these may well have negative impacts on the water environment.
Conclusion
6.In the EM, Defra says that the compliance costs of licensing and the impact on the economic output of the abstractors affected have a net present value of £74 million, although this has to be considered alongside the benefits to agricultural abstractors who are already licensed, and the wider environmental benefits. While the Impact Assessment (IA) to the Regulations states that there will be important non-monetised environmental benefits associated with reducing over-abstraction of water, most of the IA concerns itself with the costs to business of making the changes.
7.It is clear that Defra’s concern to mitigate the impacts on business has been an important cause of the protracted timescale for removing these licensing exemptions, which is being achieved through secondary legislation laid 14 years after the parent Act and five years after the deadline set in the Directive. While the Department clearly had to consider the way in which businesses would be affected by the changes proposed, we see no reason why its reflection on the consultation process in 2009 needed to take the best part of a decade to be turned into detailed implementation.
1 Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (OJ L327, 22 December 2000): [accessed 14 November 2017].
2 See the Government response to the 2009 consultation at Department for Environment, Food and Rural Affairs, Changes to water abstraction licensing exemptions, January 2016, pages 15-18: https://consult.defra.gov.uk/water/water-abstraction-licensing-exemptions/supporting_documents/Consultation%20Document%20%20New%20Authorisations.pdf and see the Government response to the 2016 consultation at Department for Environment, Food and Rural Affairs, Government response to consultation on changes to water abstraction licensing exemptions in England and Wales: New Authorisations, October 2017: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/656121/water-abstraction-consult-gov-response.pdf [accessed 14 November 2017].
3 European Commission, October infringements package: key decisions: http://europa.eu/rapid/press-release_MEMO-15-5826_en.htm [accessed 14 November 2017].