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Flood and Water Management Act 2010

Schedule 4: Reservoirs

Introduction

271.Paragraph 1 introduces the specific amendments to the Reservoirs Act 1975 as it applies in England and Wales. References below to the Minister are to the Secretary of State in relation to England and the Welsh Ministers in relation to Wales.

“Large raised reservoir”

272.Paragraph 2 amends the definition of “large raised reservoir” for the purposes of the Reservoirs Act 1975. The new definition of large raised reservoir replaces the existing definitions of “reservoir”, “raised reservoir” and “large raised reservoir” in section 1(1) to (3) of the Reservoirs Act 1975.

273.New section A1(1) provides that a large raised reservoir is (a) a large, raised structure designed or used for collecting and storing water; and (b) a large, raised lake or other area capable of storing water which was created or enlarged by artificial means. New section A1(1)(a) includes non-impounding, bunded reservoirs (reservoirs with a continuous embankment around their perimeter which are filled with water from, for example, river or groundwater sources and rain). New section A1(1)(b) includes impounding reservoirs (formed by the construction of an embankment across a watercourse or lake).

274.The terms “raised” and “large” are further defined in subsection (2) and (3) of new section A1. A “raised” structure or area will be “large” if it is capable of holding 10,000 cubic metres of water or more above the natural level of any part of the surrounding land. The volume specified in subsection (3) may be amended by order by the Minister under subsection (7) of new section A1.

275.Subsection (4) of new section A1 allows the Minister to make regulations specifying in more detail how the capacity of a large raised reservoir is to be calculated for the purposes of the Reservoirs Act 1975. This power enables the Minister to provide clarification to engineers and reservoir undertakers on how the volume capacity of a reservoir must be calculated for the purposes of determining whether a structure or area falls within the new definition of large raised reservoir.

276.Subsection (5) of new section A1 enables the Minister to provide in regulations for a structure which is designed or used for collecting and storing water, or a lake or other area capable of storing water which was created or enlarged by artificial means, to be treated as “large” by reason of its proximity to, or actual, or potential communication with another such structure or area. Where two or more reservoirs lie on the same watercourse, the uncontrolled release of water from an upstream reservoir may cause a reservoir downstream to also fail. The power will enable the Minister to extend the definition of large raised reservoir to include, for example an area or structure which is not capable of holding 10,000 cubic metres of water, but which, if it failed, could cause a connected reservoir which is also not capable of holding 10,000 cubic metres of water to release 10,000 cubic metres of water or more downstream.

277.Subsection (6) of new section A1 requires the Minister to aim to ensure, when making these regulations, that such a structure or area is treated as “large” only if 10,000 cubic metres of water or more might be released as a result of this proximity or communication.

278.Subsection (8) allows the Minister to make regulations providing for specified things not to be treated as large raised reservoirs for the purposes of the Reservoirs Act 1975.

279.Subsection (9) of new section A1 defines a large raised reservoir further to include anything used or designed to contain the water or its flow.

280.Orders made under subsection (7) and regulations made under subsection (8) of new section A1 are subject to the affirmative resolution procedure. Regulations made under subsections (4) and (5) are subject to the negative resolution procedure. See further paragraph 38 of Schedule 4.

281.Paragraph 3 makes consequential amendments to the Reservoirs Act 1975.

Registration

282.Paragraph 4 inserts additional provisions after section 2(2A) of the Reservoirs Act 1975 about the registration of large reservoirs.

283.The Reservoirs Act 1975 already requires the Environment Agency to establish and maintain a register of large raised reservoirs in England and Wales and a record of information about each of them (see section 2(2)). New section 2(2B) makes it a requirement for the undertaker of a large raised reservoir to register the reservoir with the Environment Agency in accordance with regulations made under new section 2(2C) so as to ensure that the Environment Agency is able to keeps its register complete and up-to-date.

284.Paragraph 5 makes consequential amendments to the Reservoirs Act 1975.

285.Paragraph 6 inserts section 22(A1) before section 22(1) of the Reservoirs Act 1975. Under new section 22(A1), it is an offence to fail to comply with the requirements of new section 2(2B) or a requirement specified in regulations made under new section 2(2C). New section 22(A2) sets out the penalty for the offence under section 22(A1).

286.Regulations made under new section 2(2C) are subject to the negative resolution procedure (see further paragraph 38 of Schedule 4).

High-risk reservoirs

287.Paragraphs 7 and 8 insert new sections 2A to 2E after section 2 of the Reservoirs Act 1975 and make consequential amendments to the Act.

288.New section 2A(1) requires the Environment Agency, as soon as reasonably practicable after a large raised reservoir has been registered under new section 2(2B), to consider whether it is to be designated as a “high-risk reservoir”. Where the Environment Agency proposes to designate a large raised reservoir as a high-risk reservoir, it must notify the undertaker of its provisional designation, including the reasons for this designation, and how and within what period representations to the Environment Agency can be made (section 2A(2) and (3)).

289.New section 2B(1) empowers the Environment Agency to designate a large raised reservoir as a high risk one by giving notice confirming a provisional designation.

290.New section 2C sets out the criteria by reference to which the Environment Agency may determine that a large raised reservoir is a high-risk reservoir. Under subsection (1) of new section 2C the Environment Agency may determine that a large raised reservoir is a high-risk reservoir if the Environment Agency thinks that, in the event of an uncontrolled release of water from the reservoir, human life could be endangered unless the reservoir satisfies any conditions specified in regulations that may be made by the Minister. Subsection (2) of new section 2C gives an indication of the conditions that may be specified in regulations made under new section 2C(1)(b).

291.The undertaker of a high-risk reservoir will be required to comply with sections 10, 11 and 12 of the Reservoirs Act 1975 (as amended), whereas the undertaker of a large reservoir that is not so designated will not.

292.New section 2D requires the Environment Agency to carry out a review in relation to a large raised reservoir that has not been designated as a high-risk reservoir following its registration if it later thinks that it may be appropriate to designate the reservoir as a high-risk reservoir. Such a review may be appropriate where development has taken place downstream or alterations to the reservoir have affected the reservoir’s inundation zone. The Environment Agency must also carry out a review if it thinks that the designation of a large raised reservoir as a high-risk reservoir may have ceased to be appropriate. The procedure that applies in relation to the designation of a large raised reservoir as a high-risk reservoir following a review is the same as the procedure that applies following its registration.

293.New section 2E requires the Minister to make regulations providing a right of appeal against designations made under new section 2B. The regulations must define which person or body has jurisdiction in relation to the appeal and set out the appeal procedure. Under subsection (3) of new section 2E a designation is suspended pending the outcome of the appeal. The first set of regulations made under section 2E is subject to the affirmative resolution procedure; otherwise regulations made under this section are subject to the negative resolution procedure (see paragraph 38 of Schedule 4).

Panels of Engineers

294.Paragraph 9 adds new subsections (10) and (11) to section 4 of the Reservoirs Act 1975 to enable the Secretary of State and Welsh Ministers to jointly establish one or more panels of engineers in relation to England and Wales. Engineers on the panel(s) would be appointed to act as construction, inspecting or supervising engineers for the purposes of the Act.

Construction and alteration

295.Paragraph 10 amends section 6 of the Reservoirs Act 1975 which relates to construction and alteration of large raised reservoirs.

296.Sub-paragraphs (2) to (5) amend section 6 of the Reservoirs Act 1975 so that the Act also applies to alterations to a large raised reservoir to decrease its capacity.

297.Sub-paragraph (6) adds new subsections (6A) and (6B) to section 6 of the Reservoirs Act 1975. New subsection (6A) provides that section 13 of the Reservoirs Act 1975 applies to alterations or proposed alterations to decrease the capacity of a large raised reservoir so that it is incapable of holding 10,000 cubic metres of water above the natural level of the surrounding land. New subsection (6B) allows the Minister, by order, to substitute a different volume of water for the volume specified in subsection (6A) in line with changes to the volume capacity specified in new section A1(3). An order made under new section 6(6B) is subject to the affirmative resolution procedure (see further paragraph 38 of Schedule 4).

298.Paragraph 11 makes consequential amendments to the Reservoirs Act 1975. Paragraph 11(6) also amends section 8(3) of the Reservoirs Act 1975 (powers of the enforcement authority in the event of non-compliance with the requirements as to construction or alteration of large raised reservoirs) to require the undertaker to carry out any recommendations an appointed engineer sees fit to make in the interests of safety within the periods specified in the engineer’s report. The engineer’s report must specify the period within which each recommendation contained in the report must be carried out.

High-risk reservoirs: inspections

299.Paragraph 12 amends section 10 of the Reservoirs Act 1975 (inspections).

300.Sub-paragraph (2) amends section 10(1) of the Reservoirs Act 1975 so as to only require the undertakers of high-risk reservoirs to have their reservoirs periodically inspected.

301.Sub-paragraph (3) amends section 10(2) of the Reservoirs Act 1975 to enable the Minister to make regulations about the times at which a high-risk reservoir must be inspected. Regulations made under section 10(2) (as amended) are subject to the affirmative resolution procedure.

302.Sub-paragraph (4) amends section 10(3) of the Reservoirs Act 1975 to allow the inspecting engineer to make any recommendations he sees fit as to: (a) the timing of the next inspection; (b) the maintenance of the reservoir; and (c) any measures required in the interests of safety and the period in which those measures must be taken. Sub-paragraph (8) amends section 10(6) of the Reservoirs Act 1975 to require undertakers to carry out any recommendations as to measures required in the interests of safety made by the inspecting engineer within the period specified in the engineer’s report. Sub-paragraph (6) amends section 10(5) of the Reservoirs Act 1975 to require the inspecting engineer to include in the certificate he is required to give under section 10(5) any recommendations as to the maintenance of the reservoir included in the engineer’s report. Sub-paragraph (7) adds a new subsection 10(5A) and requires the undertaker to comply with any recommendation made by an inspecting engineer under section 10(3)(b) of the Reservoirs Act 1975 (as amended) as to the maintenance of the reservoir.

303.Sub-paragraph (5) inserts a new subsection after section 10(3) of the Reservoirs Act 1975 to require an inspecting engineer to notify the Environment Agency if he or she has not provided a report before the end of the period of 6 months, beginning with the date of completion of the inspection of the reservoir and to provide a written statement of the reasons for this.

304.Sub-paragraph (9) inserts into section 10 of the Reservoirs Act 1975 subsection (6A). This subsection requires an inspecting engineer to include in his or her report, a statement as to whether all of the safety measures recommended in the previous inspection report have been taken. Where they have not, the inspecting engineer must either include in the report recommendations to take any safety measure that has not yet been taken or an explanation of why it is no longer required.

305.Paragraphs 13 and 14 contain various consequential amendments to the Reservoirs Act 1975 resulting from the new provision allowing an inspecting engineer to make recommendations as to the maintenance of the reservoir.

306.Paragraph 15 inserts subsections (1AA) and (1AB) after section 22(1) of the Reservoirs Act 1975 (criminal liability). Under new section 22(1AA), it is an offence to fail to comply with the requirements of section 10(5A). The penalty for this offence is set out in new subsection 22(1AB).

High-risk reservoirs: monitoring and supervision

307.Paragraphs 16 and 17 amend sections 11 and 12 of the Reservoirs Act 1975 (monitoring and supervision). Sections 11 and 12, as amended, apply to high-risk reservoirs only.

308.Paragraph 17(3) inserts subsections (2A) and (2B) after section 12(2) of the Reservoirs Act 1975. New subsections 12(2A) and (2B) require the supervising engineer to provide the undertaker with a statement of any steps taken to maintain the reservoir in accordance with the recommendations of the inspecting engineer under new section 10(3)(b) at least once every 12 months.

309.Paragraph 17(5) adds subsections (6) to (8) to the end of section 12 of the Reservoirs Act 1975. New section 12(6) gives the supervising engineer the power to direct the undertaker to carry out a visual inspection of the reservoir at specified intervals for the purpose of identifying anything that might affect the safety of the reservoir. These provisions will enable supervising engineers to set out how undertakers can keep a look out for potential problems, such as growing leaks or embankment subsidence which if caught early can avoid worse problems, including emergency situations, developing later on. New section 12(7) requires the undertaker to notify the supervising engineer of each visual inspection that is carried out and anything noticed in the course of it. New section 12(8) allows the Minister to issue guidance to supervising engineers about supervision in accordance with section 12 of the Reservoirs Act 1975 (as amended).

310.Paragraph 19 inserts subsections (1AC) and (1AD) into section 22 of the Reservoirs Act 1975 (criminal liability). Under new section 22(1AC), it is an offence, without reasonable excuse, to fail to comply with the requirements of new section 12(6) or 12(7). New section 22(1AD) sets out the penalty for this offence.

Flood plans

311.Paragraphs 20 and 21 amend section 12A of the Reservoirs Act 1975 (flood plans).

312.Paragraphs 20(2) and (3) amend the definition of a flood plan in section 12A(1) of the Reservoirs Act 1975 to provide that a flood plan must also give information about the areas that may be flooded in the event of an uncontrolled escape of water, and describe the action the undertaker would take in order to prevent an uncontrolled escape of water. Paragraph 21 inserts new section 12AA, which sets out the procedure to be followed and other requirements that apply where an undertaker is directed to prepare a flood plan. The undertaker must prepare a flood plan in consultation with the appointed engineer and may not provide a copy of it or publish it, as directed, unless the engineer has certified that it meets the requirements of section 12A(2)(a) and (b). Paragraph 22 amends section 19 to allow the undertaker to challenge a failure by the appointed engineer to issue a certificate under new section 12AA(3).

313.Paragraph 24 inserts subsection (1AE) into section 22 of the Reservoirs Act 1975 (criminal liability). New section 22(1AE) makes it an offence to fail to comply with the requirements of new section 12AA(4), (5), (6)(a) or (7) and sets out the penalties for these offences.

Discontinuance

314.Paragraph 25 amends section 13 of the Reservoirs Act 1975 (discontinuance of large raised reservoirs).

315.Sub-paragraphs (2) and (4) amend section 13(1) and 13(3) of the Reservoirs Act 1975 to substitute for “more than 25,000” the figure “10,000” to reflect the new definition of large raised reservoir (see paragraph 2 of Schedule 4).

316.Paragraph 25(3) inserts new subsections (1A) to (1E) after section 13(1) of the Reservoirs Act 1975. These provisions allow a qualified civil engineer to issue an interim certificate if he thinks that the level of water in the reservoir should be reduced before the alteration is completed, and requires the undertaker to ensure that the reservoir does not contain water except in accordance with the interim certificate.

317.Paragraph 25(5) adds at the end of section 13 of the Reservoirs Act 1975 new subsections (4) and (5). New section 13(4) enables the Minister by order to substitute a different volume of water for that specified in section 13(1) and 13(3) in line with changes made to the volume capacity specified in new section A1. New section 13(5) allows the Environment Agency to serve a notice requiring the undertaker to appoint a qualified civil engineer where it appears to the Environment Agency that such an engineer has not been employed as required by section 13(1) of the Reservoirs Act 1975. Paragraph 26 makes consequential amendments to sections 15 (reserve powers) and 22(1)(b) (criminal liability) of the Reservoirs Act 1975.

318.An order made under new section 13(4) is subject to the affirmative resolution procedure.

Abandonment

319.Paragraphs 27 and 28 amend section 14 of the Reservoirs Act 1975 (abandonment of large raised reservoirs).

320.Paragraph 27(2) amends section 14(2) of the Reservoirs Act 1975 to require the undertakers of a large raised reservoir who are proposing to abandon the use of their reservoir, to carry out any recommendations as to measures to be taken in the interests of safety made by the appointed engineer within the period specified in the report.

321.Paragraph 27(3) adds section 14(6) to the Reservoirs Act 1975, which enables the Minister to make regulations providing for what is and is not to be treated as abandonment of use of a large raised reservoir and bringing back a large raised reservoir into use as a reservoir for the purpose of the Act.

322.Regulations made under new section 14(6) are subject to the negative resolution procedure.

Appeals

323.Paragraph 30 inserts section 19A to the Reservoirs Act 1975. Under sections 8(1), 9(7), 10(7), 12(4), 13(5) and 14(4) of the Act (as amended), the Environment Agency may serve an enforcement notice on the undertakers of a large raised reservoir requiring them to appoint an engineer where it appears to the Environment Agency that the undertakers have not appointed one as required. Under sections 8(3A), 9(7), 10(7) and 14(4), the Environment Agency may also serve an enforcement notice on the undertakers of a large raised reservoir where it appears to the Environment Agency that the undertakers have not carried out any recommendation of an engineer as to measures in the interests of safety. Section 19A requires Ministers to make regulations to provide a right of appeal against the requirements in these enforcement notices. The regulations must define which person or body has jurisdiction in relation to the appeal and set out the appeal procedure. The first set of regulations made under section 19A is subject to the affirmative resolution procedure; otherwise regulations made under this section are subject to the negative resolution procedure (see paragraph 38 of Schedule 4).

Directions of engineers

324.Paragraph 31 amends section 20(1) of the Reservoirs Act 1975 to include directions made by an engineer under the Act in the list of forms that may be prescribed (see also paragraph 21).

Assessment of reports and statements

325.Paragraph 32 inserts section 20A after section 20 of the Reservoirs Act 1975. This will allow the Minister to make regulations for the assessment of the quality of reports and written statements prepared by inspecting and supervising engineers (new section 20A(1)), including for the assessment to be made by a committee of members of the Institution of Civil Engineers (new section 20A(2)). Regulations may set out the criteria and procedures for assessment. The provision will provide a basis on which improvements to, and a greater consistency in, engineers’ reports etc can be achieved and will help to identify where prescribed forms or guidance needs to be revised.

326.Regulations made under new section 20A(1) are subject to the negative resolution procedure.

Information and reports

327.Paragraph 33 inserts sections 21A and 21B after section 21 of the Reservoirs Act 1975.

328.New section 21A (power to require information) allows the Environment Agency by notice to require an undertaker to provide specified information where the information is required by the Environment Agency for the purposes of carrying out its functions under the Reservoirs Act 1975.

329.New section 21B (reports) allows the Minister to make regulations to require a specified person to report to the Environment Agency on any incident of a specified kind which affected or could have affected the safety of a large raised reservoir. This will enable the Minister to specify the kinds of incident that should be reported to the Environment Agency for collating and dissemination to reservoir undertakers and panel engineers. The intention is that issues of safety arising from individual incidents should be disseminated to undertakers and the profession so that all can learn from individual incidents and if necessary technical guidance can be issued.

330.Paragraph 34 inserts subsection (4A) to (4C) after section 22(4) of the Reservoirs Act 1975 (criminal liability) to make it an offence to fail to comply with a requirement of a notice under new section 21A or to make a report under regulations made under new section 21B.

331.Regulations made under new section 21B(1) are subject to the negative resolution procedure.

Enforcement: supplementary

332.Paragraph 35 amends section 22(1) of the Reservoirs Act 1975 (criminal liability) by removing the references in that section to “by the wilful default of the undertakers” and “unless there is reasonable excuse for the default or failure” to make the offences strict liability offences.

333.Paragraph 36 inserts new section 22C after section 22B of the Reservoirs Act 1975 (criminal liability). Under new section 22C, the undertaker must pay to the Environment Agency the amount of expenses reasonably incurred by the Environment Agency in connection with the consultation of an engineer when exercising its enforcement powers under sections 8 (construction and alteration), 9 (re-use of abandoned reservoirs), 10 (inspection) or 14 (abandonment) of the Reservoirs Act 1975.

Arrangements for civil protection: charges

334.Paragraph 37 inserts section 22D in the Reservoirs Act 1975. This section allows Category 1 responders (as listed in Part 1 of Schedule 1 to the Civil Contingencies Act 2004) to charge an undertaker a fee in accordance with a scheme prescribed by regulations made by the Minister. The purpose of such a scheme is to enable Category 1 responders to charge fees in respect of the costs they incur in carrying out functions under section 2 of the Civil Contingencies Act 2004 in connection with large raised reservoirs.

Regulations and Orders

335.Paragraph 38 amends section 5 of the Reservoirs Act 1975 (power to prescribe by regulations) to make further provision in relation to regulations, rules and orders made by the Minister under the Reservoirs Act 1975.

Charges

336.Paragraph 39 provides for the introduction by the Environment Agency of a charging scheme for the recovery of the Environment Agency’s costs incurred in performing its functions under the Reservoirs Act 1975. The procedure that applies to the introduction of a charging scheme is set out in section 42 of the Environment Act 1995.

Power to make further provision

337.Paragraph 40(1) provides that the Minister may make such further amendments to the Reservoirs Act 1975 as appear necessary, or desirable in consequence of the amendments made by Schedule 4.

338.An order made under sub-paragraph (1) is subject to the affirmative resolution procedure.

Regulatory impact assessment

339.Paragraph 41 will require the Secretary of State in relation to reservoirs in England and the Welsh Ministers in relation to reservoirs in Wales, to review, prepare and publish a report, on the burdens on undertakers of large raised reservoirs of complying with the Reservoirs Act 1975, as amended by Schedule 4.

340.The review must be carried out at the end of the period of 12 months beginning with the date on which all of the following are first brought into force in relation to all large raised reservoirs (as defined in new section A1): new section A1 (“large raised reservoir”: England and Wales); the regulations under new section 2(2C) (registration); the regulations under new section 2C(1)(b) (conditions (if any) which a large raised reservoir must satisfy in order for it not to be designated as a high-risk reservoir where section 2C(1)(a) applies); and the regulations under section 10(2), as amended (the times at which a high-risk reservoir must be inspected).

Ministerial responsibility

341.Paragraph 42 provides that in the amendments to the Reservoirs Act 1975 made by this Schedule, a reference to the Minister is to the Secretary of State in relation to England and the Welsh Ministers in relation to Wales.

Cross-border England-Scotland reservoirs

342.Paragraph 43 makes provision about a large raised reservoir which is partly in Scotland and partly in England. It enables the Secretary of State, with the consent of Scottish Ministers, to provide by order for the English reservoir safety regime (see paragraph 43(1)(c)) or the Scottish reservoir safety regime (see paragraph 43(1)(d)) to apply to any specified large raised reservoir or a class of large raised reservoir.

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