The Water Abstraction and Impounding (Exemptions) Regulations 2017

PART 1 Introduction

Citation and commencement

1.  These Regulations may be cited as the Water Abstraction and Impounding (Exemptions) Regulations 2017 and come into force on 1st January 2018.

Interpretation

2.—(1) In these Regulations—

“the 1991 Act” means the Water Resources Act 1991;

“the 2010 Regulations” means the Conservation of Habitats and Species Regulations 2010(1);

“conservation site” means—

(a)

a site appearing on the list provided to the European Commission pursuant to regulation 10(5) of the 2010 Regulations(2);

(b)

a special area of conservation within the meaning of regulation 11 of the 2010 Regulations;

(c)

a special protection area or proposed special protection area within the meaning of regulations 12A and 12B, respectively, of the 2010 Regulations;

(d)

a site of special scientific interest confirmed by the Natural Resources Body for Wales or Natural England pursuant to section 28(5)(b) of the Wildlife and Countryside Act 1981(3);

(e)

in so far as not falling under sub-paragraph (d), a wetland designated under the Ramsar Convention, within the meaning of section 37A of the Wildlife and Countryside Act 1981(4);

(f)

an area designated by order by the Natural Resources Body for Wales or Natural England under section 7 of the National Parks and Access to the Countryside Act 1949(5);

(g)

a nature reserve established by a local authority under section 21 of the National Parks and Access to the Countryside Act 1949(6);

“managed wetland system” means—

(a)

an area of land that is periodically inundated or saturated by abstracted water in order to provide ecological benefits to flora and fauna, or

(b)

an area of land through which abstracted water flows, through a system of channels, sluices, carriers or other apparatus in order to provide ecological benefits to flora and fauna;

“normal tidal limit” means the normal tidal limit as marked on the Ordnance Maps (1:25,000 scale);

“protected species” means—

(a)

a European protected species within the meaning of regulation 40(1) of, and Schedule 2 to, the 2010 Regulations;

(b)

a species designated under section 9 of, and Schedule 5 to, the Wildlife and Countryside Act 1981(7);

(c)

a species included in a list published by the Secretary of State under section 41 of the Natural Environment and Rural Communities Act 2006(8) or by the Welsh Ministers under section 7 of the Environment (Wales) Act 2016(9).

(2) In these Regulations, references to alteration, in relation to impounding works, include the removal or partial removal of those works and cognate expressions are construed accordingly.

PART 2 Exemptions from restriction on abstraction

Navigation, harbour and conservancy authorities and dry docks

3.—(1) The restriction on abstraction does not apply to any abstraction of water that is carried out by, or on behalf of, a navigation authority, harbour authority or conservancy authority if—

(a) the purpose of the abstraction is a transfer, without intervening use, of water from any inland waters downstream of the normal tidal limit to that authority’s water system, and

(b) the water is abstracted at any time other than in the hour before or in the hour after low tide at the point of abstraction.

(2) The restriction on abstraction does not apply to any abstraction of water that is carried out if it is for the purpose of a transfer of water, without intervening use—

(a) into a dry dock from a water system of the authority for use within that dry dock, or

(b) from that dry dock back into the same water system.

(3) In this regulation, “water system” has the meaning given by sections 26(4)(a) and (5) of the 1991 Act(10).

Emergency abstractions by navigation, harbour and conservancy authorities

4.—(1) The restriction on abstraction does not apply to any abstraction of water that is carried out by, or on behalf of, a navigation authority, harbour authority or conservancy authority in connection with its functions as such an authority if—

(a) the purpose of the abstraction is a transfer of water without intervening use,

(b) the abstraction is an emergency abstraction as defined in paragraph (2), and

(c) the authority gives notice in accordance with paragraphs (3) and (4) (but see paragraph (5)).

(2) An abstraction of water is an emergency abstraction if, in the opinion of the authority, an emergency has arisen which makes the abstraction necessary to prevent immediate danger of interference with any operations relating to that authority or, in relation to such operations, to prevent an immediate risk of—

(a) death, personal injury, or harm to health of a human being,

(b) damage to property, or

(c) damage to the environment.

(3) The authority referred to in paragraph (2) must give notice to the appropriate agency of —

(a) the fact that the abstraction has taken place and of the source of supply in question, and

(b) the reason that the authority considered that—

(i) an emergency had arisen, and

(ii) the abstraction was a necessary measure to prevent an immediate danger or risk identified in paragraph (2).

(4) Notice under paragraph (3) must be given before the end of the period of five days beginning with the date on which the abstraction started.

(5) On receipt of a notice under paragraph (3), the appropriate agency may give notice to the authority that—

(a) in the appropriate agency’s opinion an emergency has not arisen, or

(b) that the abstraction is not, or is no longer, necessary for any of the reasons set out in paragraph (2).

(6) If the appropriate agency gives notice under paragraph (5), the restriction on abstraction applies to the abstraction from the time when the notice is served (and, where appropriate, the restriction imposed by section 24(2) of the 1991 Act also applies accordingly).

Small scale dewatering in the course of building or engineering works

5.—(1) The restriction on abstraction does not apply to an abstraction or series of abstractions of water carried out in the course of building or engineering works for the purpose of dewatering from a sump or excavation if—

(a) the abstraction or series of abstractions are temporary and in any event carried out over a period of less than six consecutive months beginning with commencement of the first abstraction,

(b) each abstraction does not cause or is not likely to cause damage to a conservation site or specific features in such a site,

(c) each abstraction does not cause or is not likely to cause damage to protected species, and

(d) either—

(i) the water abstracted is immediately discharged to a soakaway, or

(ii) the volume of water abstracted is less than 100 cubic metres of water per day and there is no intervening use of that water before discharge (but see paragraph (2)).

(2) Where the abstraction is undertaken within 500 metres of a conservation site or within 250 metres of a spring, well or borehole used to supply water for any lawful use, paragraph (1)(d)(ii) applies in respect of that abstraction as if the reference to 100 cubic metres of water per day were a reference to 50 cubic metres of water per day.

Surface water abstraction in the course of building or engineering works

6.  The restriction on abstraction does not apply to any abstraction or series of abstractions of surface water in order to prevent interference with building or engineering works, if the following conditions are met—

(a) the abstraction or series of abstractions are temporary and in any event carried out over a period of less than six consecutive months beginning with the commencement of the first abstraction;

(b) each abstraction does not cause or is not likely to cause damage to a conservation site or specific features in such a site;

(c) each abstraction does not cause or is not likely to cause damage to protected species;

(d) the water abstracted is immediately discharged downstream of the building or engineering works.

Abstraction in the course of dredging

7.—(1) The restriction on abstraction does not apply to any abstraction of water in the course of dredging —

(a) in inland waters downstream of the normal tidal limit, or

(b) in inland waters upstream of the normal tidal limit, if that dredging is carried out by, or on behalf of, any authority in the exercise of its functions in those inland waters.

(2) In paragraph (1)(b), “authority” means the Environment Agency, the Natural Resources Body for Wales, a navigation authority, a harbour authority, a conservancy authority, an internal drainage board or a local authority.

Abstraction within a managed wetland system

8.  The restriction on abstraction does not apply to any abstraction of water within a managed wetland system if the abstraction is for the sole purpose of the management, operation or maintenance of water levels or flows in that managed wetland system.

Abstraction from specified saliferous strata

9.—(1) The restriction on abstraction and the restrictions imposed by section 24(2) of the 1991 Act do not apply to the abstraction of water from the saliferous strata underlying the surface of the land in the areas listed in the Schedule to these Regulations(11).

(2) In paragraph (1), “saliferous strata” means strata which (whether in their natural state or when water is artificially introduced) yield an aqueous solution with a salt content of more than 100,000 milligrams per litre.

PART 3 Exemptions from restriction on impounding works

Construction or alteration of impounding works in emergencies

10.—(1) The restriction on impounding works does not apply to the construction or alteration of impounding works carried out in an emergency where the works are undertaken—

(a) by the appropriate agency pursuant to its powers as enforcement authority under section 16 of the Reservoirs Act 1975(12);

(b) by, or on behalf of, a navigation authority, a harbour authority or a conservancy authority in connection with its functions, or by any other person, with the prior written consent of the appropriate agency given in accordance with paragraph (2) (but see paragraphs (3) to (5)).

(2) The appropriate agency may not give consent under paragraph (1)(b) unless it is satisfied that the works are necessary to prevent an immediate risk of—

(a) death, personal injury or harm to health of a human being,

(b) damage to property, or

(c) damage to the environment.

(3) Where an authority or person does not seek the appropriate agency’s consent before carrying out impounding works, the authority or person must give notice to the appropriate agency of—

(a) the fact that the impounding works have been carried out, and

(b) the reason that the authority or the person considered that—

(i) an emergency had arisen, and

(ii) the works were necessary to prevent an immediate risk identified in paragraph (2).

(4) Notice under paragraph (3) must be given before the end of the period of five days beginning with the date on which the impounding works started.

(5) On receipt of a notice under paragraph (3), the appropriate agency may either—

(a) give written consent retrospectively for the impounding works carried out, or

(b) give notice to the authority or person that—

(i) in the appropriate agency’s opinion an emergency has not arisen, or

(ii) that the works are not, or are no longer, necessary to prevent an immediate risk identified in paragraph (2).

(6) If the appropriate agency gives notice under paragraph (5)(b), the restriction on impounding works applies to the impounding works from the time when the notice is served.

Construction or alteration of impounding works by internal drainage boards

11.  The restriction on impounding works does not apply to the construction or alteration of impounding works within the district of an internal drainage board(13) if—

(a) the works are constructed or altered by, or on behalf of, that board in connection with its functions, and

(b) construction or alteration is commenced after the coming into force of these Regulations.

Construction or alteration of impounding works in a managed wetland system

12.  The restriction on impounding works does not apply to the construction or alteration of impounding works in a managed wetland system if—

(a) the sole purpose of the works is the management, operation or maintenance of water levels or flows in that managed wetland system, and

(b) construction or alteration is commenced after the coming into force of these Regulations.

PART 4 Miscellaneous

Existing licences for abstraction

13.  A licence to abstract water granted under Chapter 2 of Part 2 of the 1991 Act(14) ceases to have effect to the extent that it authorises an activity falling within regulation 7 or 8.

Transitional provision regarding managed wetland systems

14.—(1) Paragraph (2) applies where—

(a) a person has, in the seven years prior to the coming into force of these Regulations, abstracted water from a managed wetland system for the sole purpose of the management, operation or maintenance of water levels or flows in that managed wetland system, and

(b) written consent under regulation 99(2) of the 2010 Regulations is required for that abstraction.

(2) The person may continue that abstraction in paragraph (1) until—

(a) the date an application for such consent to that abstraction is determined by the appropriate agency, or

(b) if no such application is submitted, 31st December 2019.

Thérèse Coffey

Parliamentary Under Secretary of State

Department for Environment, Food and Rural Affairs

30th October 2017

Lesley Griffiths

Cabinet Secretary for the Environment and Rural Affairs, one of the Welsh Ministers

24th October 2017