6. Administration of Abstraction Authorisation

Regulations and procedures

6.1 The Government proposed:

• to remove the provisions relating to detailed administrative arrangements from primary legislation and to enable them to be prescribed in Regulations (6.4).

6.2 This was generally supported. Regulations are particularly appropriate for matters of detail, because small improvements and changes can be made relatively easily, without the need to bring forward new primary legislation.

6.3 Therefore, the Government will bring forward legislation, when Parliamentary time allows, to remove prescription of administrative details from primary legislation and instead to provide secondary legislation powers for their prescription.

6.4 The consultation paper also set out the Government's expectation that the Environment Agency should examine the administrative procedures for abstraction authorisations and draw up proposals for amending Regulations where necessary. In particular, the Agency was expected to examine the following matters:

• The current rules on advertising applications, such as co-ordination of dates between adverts in different publications. The Environment Agency should consider whether the rules might be made more flexible without losing the public information advantages that advertisements bring (6.5.1).

• The scope for wider availability of information about authorisation applications, whether on the Internet, or in central or local lists. The Agency's Public Register could be made more accessible to the public and interested parties. In addition, it would be desirable to provide better physical access to the full applications - at present this is only available on the applicant's premises (6.5.2).

• The publication of clear and understandable explanations, framed where possible in non-technical language, for the refusal of an application for an authorisation (6.5.3).

• The scope for different levels of application fee depending on the complexity, or volume, of the proposed authorised abstraction. Application fees are at present set at one uniform level (6.5.4).

• The options for shortening the time the Agency can take to determine an application (6.5.5).

6.5 There was general support for improvements in all these matters. Some respondents wished the Environment Agency also to publish clear explanations in cases where it granted an abstraction authorisation in the face of significant opposition. The Government agrees that this should be done and expects the Agency to develop guidelines for identifying and handling such cases. Opinions were more divided on the matter of setting application fees, but the Government remains of the view that some differentiation between application for a minor, un-controversial variation and a major new abstraction is desirable, provided the equitable operation of such a scheme does not cause significant additional administrative burdens. Amongst general support for measures to reduce the time taken to determine applications, several respondents suggested penalties for the Environment Agency if it failed to meet deadlines, but there was also anxiety that such an approach would limit the opportunity for public consultation and investigation of complex issues. For that reason, the Government does not consider that such stringency is appropriate, but it will expect the Agency to maintain clear performance targets and to account to Ministers if those targets are not met.

6.6 The Government expects the Environment Agency to take the above points into account as it develops its detailed proposals for improved administration of abstraction authorisations.

6.7 The Government proposed:

• to give the Agency discretion in deciding whether requests for minor variations should have to involve the advertising process. Advertising would remain necessary for any proposed variations which could have a significant environmental impact or effect on local interests (6.7).

6.8 The advertisement of applications for an abstraction authorisation makes the process more accountable to the public, and allows those with an interest in the water environment to make representations to the Environment Agency where necessary. Respondents emphasised that public advertisement was important for all variations which might have an effect on the water environment and the Government wishes the Environment Agency to reflect that in its practice.

6.9 The Government will bring forward legislation, when Parliamentary time allows, to give the Environment Agency the power to waive the usual requirement to advertise in the case of applications which seek to vary the terms of existing abstraction licences. The Environment Agency, in consultation with interested parties, will draw up publicly available guidelines setting out the circumstances in which such variations would not require public advertisement.

Action on breaches of authorisation conditions

6.10 The Government proposed to:

• make available to the Environment Agency further powers for suspension of authorisations and also powers to serve cessation notices in appropriate circumstances (6.11).

6.11 Non-compliance with the terms of a licence and unauthorised abstraction are already criminal offences which are subject to fines imposed by the courts. The Government does not intend to change this provision. However, it considers that, in some circumstances, suspension or cessation of an authorisation would be quicker and more effective than imposition of a fine. There were no strong arguments put forward in the consultation process against introducing new powers of enforcement.

6.12 The Government will therefore bring forward legislation, when Parliamentary time allows, to enable the Environment Agency, subject to the need not to jeopardise public health or safety, to make an enforcement order which would suspend or revoke an abstraction authorisation in cases where an abstractor has breached the terms of that authorisation. The abstractor will be able to contest the validity of the enforcement order in the Courts.

Appeals

6.13 The Government sought views on whether there is any legal or administrative aspect of the [abstraction appeals] process which needs refinement (6.15).

6.14 Very few respondents expressed views. One suggested that a panel of independent experts should hear water abstraction appeals because of the technical complexities likely to be encountered. But the Planning Inspectorate took the view that, provided the resource implications were recognised and met, there would be no fundamental difficulty in providing a greater pool of expertise within the existing framework. The Government agrees that the Planning Inspectorate should be able to do this.

6.15 The Planning Inspectorate also said that there will be a need for Government guidance, particularly where issues concerned with allocation of scarce resources arise, and in respect of the status of LEAPs and (as they are developed) Abstraction Management Strategies. These views were echoed by another respondent, who also called for procedure rules to be drawn up specifically for the conduct of water abstraction appeals. Another respondent, representing agricultural interests, expressed the view that the current system discourages appeals.

6.16 The Government accepts that there will be a need for greater guidance as the various changes it has proposed and confirmed take effect. It will give further detailed consideration to the concerns raised by these respondents and draw up guidance or rules as appropriate.