3. Authorisation of Abstractions

Qualification for authorisation applications

3.1 The Government proposed that:

• in order to apply for an authorisation from the Environment Agency to abstract water, you will only have to have the right of access to the land from which you want to abstract. Authorisations to take water directly from canals owned and operated by British Waterways will continue to be restricted to British Waterways (3.4).

3.2 Of the relatively few respondents who directly addressed this question all were in favour of the proposal that only right of access to land (rather than ownership) should be required in order to apply for a licence. Some questioned how this requirement would be administered, for example, whether 'legal agreement' would be required before making an application. In this vein it was suggested that, as in the planning system, an applicant should not need right of access to land in order to have an application considered or granted (although right of access would be needed in order to carry out the abstraction), or, that the proposal should extend to those with a potential right of access.

3.3 The Government accepts that evidence of potential right of access should suffice as qualification for making an application for an abstraction authorisation. This will make the system simpler and more flexible. But there needs to be protection against a newly-authorised abstraction remaining unused for a protracted period whilst right of access is negotiated, possibly to the detriment of other potential abstractors.

3.4 Therefore, the Government intends to establish evidence of potential right of access to the land from which abstraction is to be made as the only qualification for an applicant for an abstraction authorisation. But the authorisation will be granted (all other matters being satisfactory) only upon evidence of actual right of access for the duration of the authorisation.

Scope of authorisation system

3.5 The Government made the following proposals.

• All abstractions above a threshold amount, for whatever purpose, shall require some form of prior authorisation from the Environment Agency. The only exceptions to this will be abstractions for firefighting, abstractions on boats, and drainage of land and the activities of MOD personnel on operations and training exercises (3.16).

• [There should be] three different forms of authorisation, depending on the nature of the activity. These will be Permits, Consents and Licences, and different conditions, rights and administrative procedures will attach to each. The Agency will have discretion to decide, upon application by a potential abstractor, that an authorisation should be given, or given with conditions, or denied. Abstractions which would only need consent may be licensed if the applicant wishes and the abstraction is consistent with the Agency's licensing policy. Abstractions under the threshold amount will require Registration if their rights are to be protected (3.18).

• Transitional arrangements will be put in place for those activities which will, under the new system, come under new, or different, types of control (3.19).

• One-off abstractions, where they are above the local threshold, will be allowed, subject to the prior authorisation by the Agency. Abstractors will be required to notify the Agency before proceeding with any abstractions, and the Agency will either issue a Permit with or without conditions, or prohibit the abstractions in order to ensure that local sources and the environment are adequately protected from their effects (3.33).

3.6 In relation to activities to be included within the scope of the system, the Government proposed (in paragraph 3.41) the following changes:

• Transfers of groundwater as part of a quality remediation scheme, resource augmentation scheme transfers, transfers using gravity feed channels, and other currently licensable transfers of water will require only a consent (possibly with conditions) from the Agency, rather than a full licence.

• Controllable transfers undertaken by navigation, harbour and conservancy authorities will require consent, subject to exclusions for operations entirely within those systems.

• Transfers for augmentation of supplies within land drainage systems will be subject to consent procedures, but with the option for continued exemption on transfer activities entirely within IDB areas by agreement with the Agency.

• Medium to longer term transfers for dewatering will be controlled through the consent procedure.

• Short term dewatering activities will be controlled through the permit procedure.

3.7 There was plenty of support for the principle of requiring authorisation for nearly all forms of abstraction above a threshold amount. Nearly all respondents who mentioned the matter supported exemptions continuing for the more restricted range of purposes.

- DEWATERING ABSTRACTIONS

3.8 There were significant concerns about the ending of exemption for dewatering activities, particularly amongst representatives of the deep mining industry who drew attention to safety considerations. The consultation paper had already recognised - in its paragraph 3.32 - the need for emergency dewatering of mine and other underground structures to be undertaken without need for prior authorisation, viewing these as "one-off" abstractions. But where dewatering abstractions need to be maintained, for whatever reason, for a longer period than the maximum to be allowed for one-off purposes, the Government remains of the view that these must be capable of control by the Environment Agency.

3.9 Control of continuing (as distinct from one-off) abstractions for dewatering will generally be through the proposed consent system, on the basis that the abstracted water will be directly discharged without intervening use to a watercourse or, through lagoons, to another part of the aquifer. Where the water is put to beneficial use after abstraction, a full licence will be required for that portion of the abstraction. But, at the discretion of the Environment Agency, a licence will not be required where the abstracted water is used for purposes immediately associated with the operation for which the dewatering is carried out, provided the water is used on, or in the immediate vicinity of, the dewatered site, and provided that most of the water used is then recovered for discharge without further use. The Environment Agency will publish its policy on determining which uses would qualify in these terms; mineral washing and transport are likely examples.

- ABSTRACTIONS FOR NAVIGATION PURPOSES

3.10 British Waterways and other navigation interests expressed considerable disquiet about the ending of exemptions for abstractions for their purposes, pointing out the complex nature and evolution of surface water supply to the canal network and drawing attention to the crucial part which the canal network plays in land drainage in some areas. But the Government's intention is simply to bring into the system those abstractions from surface water systems which are controllable. As the consultation paper said (in its paragraph 3.39):

On canals, there are many small uncontrolled streams and ditches which are `captured' unavoidably by interception due to the unnatural contour traverse of canals. There would be little benefit from controlling all of these where there is no option but for them to go into the canal.

3.11 Nor is it the Government's intention to bring transfers of water within the canal network into the new authorisation system. This was clearly stated in the proposal set out in the consultation paper's paragraph 3.41. That includes transfers within groups of individual reservoirs located close to one another. But canal reservoirs gather water from the surrounding catchment and act like impounding reservoirs (as distinct from pumped storage reservoirs) owned by other organisations, notably the water companies. Just as the outflow and abstraction from other impounding reservoirs is controlled through the current licensing system, thus enabling the regulation of downstream flow to secure environmental interests, so the Government considers that outflow and abstraction from reservoirs owned by navigation bodies should be brought within the authorisation system.

3.12 British Waterways pointed out the existence of a growing number of operating agreements between itself and the Environment Agency. These are binding on both parties and set out in some detail how parts of the canal network should be operated so as to protect navigation and the environment. The consultation paper commended this approach in its paragraph 3.39. The Government remains of the view that operating agreements, linked to the formal consents which it proposes for controllable navigation abstractions, may form an indispensable part of providing any overall system of control which may be necessary in particular circumstances.

3.13 It will be for the Environment Agency, in consultation with the navigation body concerned, to determine how best to structure operating agreements concerning navigation abstractions. Existing agreements, provided they are working satisfactorily, may well serve as a model for others. But operating agreements have to identify the controllable abstractions to which they relate, and the establishment of formal consents for those controllable abstractions will provide a robust framework for new agreements as well as for the periodic review of those already existing.

3.14 Similarly, it will be for the Environment Agency to determine the form and content of abstraction consents. Misgivings on this issue were expressed not only by navigation interests but also by others, notably those concerned with land drainage. In the Government's view, it may be that many consents for existing abstractions will need to state no more than the location and the physical characteristics of the controllable abstraction, together with an appropriate time limit (see paragraph 4.37 of this document) for the expiry of the consent which should reflect the significance of the abstraction for overall water resources management in the area. To these basic details might be added operating conditions, probably in the context of wider operating agreements for which individual consents will provide the framework. Any change in the physical characteristics of the consented abstraction, or to conditions where set, would of course need to be the subject of an application to the Environment Agency.

3.15 As stated in paragraph 3.40 of the consultation paper, the Government would expect the Environment Agency to consider granting abstraction consents on a `whole site' basis wherever possible. This would reflect the potentially inter-related nature of, for example, several dewatering abstractions aimed at safeguarding a particular site, as well as simplifying the administrative process. And `whole site' could be taken to mean a complete area - such as an IDB area or a specified length of canal - in which the abstractions to be consented have to operate together in order to achieve their combined purpose.

- TRANSITIONAL PROVISIONS

3.16 The Environment Agency will also need to draw up its own timetable for establishing consents for existing abstractions. The Government envisages that the transitional arrangements to be included in the necessary legislation will necessarily require the operators of controllable abstractions to apply for consent, but that they will have at least two years in which to do so. The abstraction will be deemed to be consented from the date that an application supported by details of the location and physical characteristics of the abstraction is received by the Environment Agency. Thereafter, the Environment Agency will have to determine the application. The Government would expect the Agency to attach the greatest priority to determining applications in respect of the most significant abstractions, but to have determined all applications within five years of the end of the period within which applications have to be made. In the unusual event of an abstraction requiring, in the Agency's view, significant material constraint, there would be a period of notice of at least five years before a consent could be issued in those terms, and there would be a right of appeal when the Agency provided that notification. But, overall, the Government does not consider that the process of establishing consents for existing abstractions will be excessively burdensome for either the abstractor or the Environment Agency.

3.17 If, under these transitional arrangements, a curtailment in abstraction resulting from the initial application for a consent were upheld on appeal, the Government recognises that compensation should be payable if the applicant could demonstrate financial loss. Consents will all be time-limited and curtailment of abstraction thereafter would be subject to the same arrangements as for time-limited licences.

- ADMINISTRATION

3.18 Several issues concerning the general administration of the proposed abstraction permits and consents were raised by various respondents. A few drew attention to the need for permit applications to be handled rapidly. The Government takes the view that a permit should be deemed to have been issued (without conditions) if the Environment Agency has not otherwise determined a valid application within 15 working days of its receipt. The form and content of applications for permits and consents will be specified in Regulations and applications will be invalid if the information thus required is not provided for any other than exceptional reasons. The legislation will enable abstraction in response to an emergency to proceed with no impediment, although the abstractor will be required to inform the Environment Agency of the circumstances within five working days of the commencement of the emergency abstraction.

3.19 Other respondents called for a clear definition of `temporary abstraction' as a criterion for a permit, and expressed concern about possible abuse of the system by successive applications for permits. Paragraph 3.11 of the consultation paper stated that permits would not be valid for more than one month and that the Agency would need to take steps to prevent abuse of the system. This remains the Government's view and proposed legislation will be drafted accordingly.

3.20 A few respondents called for there to be a right of appeal if applications for permits are refused or made subject to conditions by the Environment Agency. The Government recognises that need and will incorporate that provision when it brings forward the necessary legislation.

3.21 Other respondents were concerned that the lack of an advertising requirement for applications for permits and most consents would reduce accountability. The Environment Agency will be bound, by the Environmental Impact Assessment Directive, to consider whether abstraction authorisation applications are likely to have significant environmental impacts and thus require a full environmental assessment and the Government envisages that any such application will require advertisement as part of that process. The Government remains of the view that other applications should not be burdened in that way. However, the Environment Agency will be expected to maintain a register of all the abstraction permits and consents which it grants, which will of course be available for public inspection.

3.22 In summary, the Government intends to introduce systems for water abstraction permits and consents which, together with the existing licensing system, will bring nearly all abstractions under the control of the Environment Agency. The scope and operation of those systems will be as outlined in the consultation paper and as further clarified in the previous paragraphs.

Abstractions for irrigation

3.23 The Government proposed that:

• all forms of irrigation where water is moved from a source and applied to land should be licensed when quantities are above the local volume threshold (3.45).

3.24 Whilst a range of respondents explicitly supported this proposal, most organisations representing agricultural or horticultural interests expressed concern, in particular over the ending of the current licensing exemption for trickle irrigation. Much of the concern was for those who had installed trickle irrigation equipment "in good faith" (as several respondents put it) but who, as a result of a licence requirement, might find themselves unable to continue to realise the benefits they had envisaged. Uncertainty about the availability of licences was the major factor, but some also implied that the abstraction charges which would be associated with a licence could have significant effects upon the viability of their business.

3.25 In view of these concerns, the Government envisages that the transitional arrangements to be included in the legislation will necessarily require the operators of currently-exempt irrigation abstractions to apply for licences, but that they will have at least two years in which to do so, to enable informal discussions with the Environment Agency to take place. During this time, the Agency would be expected to regard any currently-exempt irrigation abstraction in the same way as any other licensed abstraction, meaning that no new abstraction would be authorised if it derogated from the existing exempt abstraction. Thereafter, the Environment Agency will have to determine the application.

3.26 The Government would expect the Agency to attach the greatest priority to determining applications in respect of the most significant irrigation abstractions, but to have determined all applications within three years of the end of the period within which applications have to be made. In the event of an abstraction requiring, in the Agency's view, significant material reduction, a licence would take effect in those terms from whatever date the Agency considered necessary in the interests of overall water resources management. The Government would expect the Agency to provide the maximum possible formal notice of such curtailment, but accepts that, in exceptional circumstances, little notice may be possible. In any event, it would be open to the abstractor to appeal against the licensing decision, and thereafter to claim compensation from the Environment Agency if a curtailment is upheld. But the Government would expect that the determination of any claims arising in this way from those who commenced trickle irrigation after publication of the consultation proposals would reflect the notice of possible curtailment that abstractors were thereby given.

3.27 In the interests of equity between the abstractors concerned, all licences for previously-exempt irrigation abstractions will attract annual charges from the closing date of the period within which applications have to be made, irrespective of the date on which the licence is subsequently granted. But the Government would wish the Environment Agency to make special provision for these cases in its scheme of charges which would phase in the application of the full charge over a period of three full financial years. And in the event that a licence application is refused, or granted in terms which constrain the abstraction, there should be no retrospective charge in respect of the abstraction which is thereupon curtailed.

3.28 Concern was also expressed that the ending of exemption for abstractions for trickle irrigation would reduce incentives for irrigators to convert to this type of irrigation, which is generally more efficient than others. But the Government considers that there may be scope within the existing water abstraction charging system to provide some financial incentive for the use of more efficient irrigation systems. Moreover, as set out in paragraph 9.27 of this document, irrigators, like other abstractors, will be under an enforceable duty to use the water they abstract in an efficient and effective manner.

3.29 Therefore, the Government remains of the view that the need for full protection of the water environment makes it essential to bring all forms of irrigation where water is moved from a source and applied to land into the abstraction licensing system. The Government also remains of the view that it is not equitable for some abstractors in water-stressed areas to be allowed to continue with unfettered abstraction whilst others, often with similar needs, are restricted. But it proposes to make this change through the transitional arrangements outlined above in order to provide existing exempt abstractors with time and protection to adapt to the new system.

Thresholds and exempt areas

3.30 The Government sought views on proposals:

• to end the "Exempt Area" designation thus requiring the authorisation of all relevant abstractions throughout England and Wales (3.17).

• to extend the provisions for exempting small on-going abstractions, for whatever purpose, by allowing different thresholds to be established on a local resource management basis. Exemption will apply only where the abstractor is the owner or occupier of the land from which the abstraction is made and on which the water is used, or where the water is abstracted for exclusively domestic purposes (3.24).

• for the Environment Agency to establish local Registers of small exempt abstractions which the Agency has a duty to protect from derogation. It will be the abstractor's responsibility to register their abstraction in order to give them a protected right. Where no Register is established, the Agency will retain the duty to protect the rights of exempt abstractors. Transitional procedures will be put in place for those entering or leaving the Register due to future changes in the local volume threshold for authorising (3.29).

3.31 Respondents generally supported these views with particular groups tending to put forward suggestions which would work in their favour. The proposal to exempt all small scale abstractions below locally set thresholds received general approval. Some suggested that there should be a nationally set threshold to avoid regional variations but most preferred the proposal to allow for different thresholds in different catchments provided that the thresholds were realistically set.

3.32 There were few complete rejections of the considerations. The few voices of dissension espoused the view that minimum thresholds should be sufficiently high to allow agricultural irrigation.

3.33 Few respondents directly addressed the question of ending "exempt area" designation but of those who did most were in favour of the proposal. Only one respondent suggested that the Environment Agency should have power to continue to exempt certain areas. Responses were divided on the question of establishing local Registers of small exempt abstractions. Most thought they were a good idea but some questioned the cost element of establishing such Registers and the shift from the Environment Agency to the small abstractors of responsibility for protecting their rights.

3.34 The Government therefore proposes to bring forward legislation, when Parliamentary time allows, which will enable "Exempt Area" designations to be brought to an end on a catchment basis and the establishment of authorisation exemption thresholds according to the needs of each catchment. It is envisaged that both these processes would require the Environment Agency to apply to the Secretary of State for an Order. But the standard authorisation threshold, which would apply to all non-exempt abstractions regardless of purpose in all catchments unless varied by an Order, would be 20 m3/d. Under the proposed legislation, the Agency would also be empowered to apply to the Secretary of State for an Order which would enable the establishment in specified areas of a Register of small abstractions, such that only those appearing on the Register would continue to have a right of protection from derogation. Where Registers are not established, all abstractions exempt from authorisation would continue to have this protection.

Impounding authorisations

3.35 The Government sought views on a proposal:

• to make impounding authorisations, subject to a de minimis exemption, into consents valid for the life of the works authorised and transferable and enforceable against any person owning or operating the works. Where environmental problems are caused by impoundings constructed unlawfully or prior to the introduction of the licensing system, the Agency will be given the power to impose conditions, subject to rules of compensation where appropriate, to ameliorate the problem (3.47).

3.36 The few who specifically addressed this proposal were in full support of the overall premise of consents. The Government therefore intends to proceed with this proposal.