Part 3

Environmental regulation

Regulation of the water environment
61
1
The Minister may by regulations make provision for any of the purposes listed in Part 1 of Schedule 8; and Part 2 of that Schedule has effect for supplementing Part 1.
2
Except as provided in Schedule 8, any provision so made is to be provision for or in connection with—
a
regulating the use of water resources,
b
securing the drainage of land or the management of flood risk, or
c
safeguarding the movement of fish through regulated waters.
3
In making regulations under this section, the Minister is to have regard to the desirability of reducing burdens by ensuring that so far as is reasonably practicable any system established by regulations under this section is combined with, or is consistent with, systems for regulating activities or other matters that cause pollution.
4
Regulations under this section may—
a
contain such consequential, incidental, supplementary, transitional or saving provisions (including provisions amending, repealing or revoking enactments) as the Minister considers appropriate, and
b
make different provision for different cases, including different provision in relation to different persons, circumstances, areas or localities.
5
Before making any regulations under this section, the Minister is to consult—
a
the Environment Agency;
b
the Natural Resources Body for Wales;
c
such bodies or persons appearing to the Minister to be representative of the interests of local government, industry, agriculture and small businesses respectively as the Minister may consider appropriate;
d
such other bodies or persons as the Minister may consider appropriate.
6
It is immaterial for the purposes of subsection (5) whether consultation is carried out before or after the coming into force of this section.
7
The Secretary of State's power to make regulations under this section is subject to the consent of the Scottish Ministers so far as the regulations apply as mentioned in subsection (11)(b),
8
In this section and Schedule 8 a reference to the use of water resources—
a
includes a reference to taking, diverting or impounding water from any inland waters, or taking water contained in underground strata, and applying it to any purpose, and
b
includes a reference to wasting water whether by action or omission, but
c
does not include a reference to the use, by a person other than a water undertaker, of water drawn from a water mains or pipe forming part of a system used by a water undertaker in carrying out a duty under section 37 of the Water Industry Act 1991.
9
In this section and Schedule 8—
- “enactment” includes—
  1. an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978;
  2. an enactment contained in, or an instrument made under, an Act of the Scottish Parliament;
  3. an enactment contained in, or in an instrument made under, an Act or Measure of the National Assembly for Wales;
- “fish” means freshwater fish and migratory fish;
- “flood” has the meaning given in section 1 of the Flood and Water Management Act 2010;
- “flood risk” has the meaning given in section 2 of that Act;
- “freshwater fish” means any fish habitually living in fresh water;
- “inland waters” has the meaning given by section 221(1) of the Water Resources Act 1991;
- “migratory fish” means fish of a kind which migrates from fresh to salt water, or from salt to fresh water, in order to spawn;
- “the Minister” means—
  1. the Secretary of State, in relation to England and in relation to so much of the River Esk and its banks and tributary streams as is mentioned in subsection (11)(b), and
  2. the Welsh Ministers, in relation to Wales;
- “regulated waters” means—
  1. inland waters in England and Wales,
  2. the waters of so much of the River Esk and its tributary streams up to their source as is mentioned in subsection (11)(b), and
  3. waters adjoining the coast of England and Wales to a distance of six nautical miles measured from the baselines from which the breadth of the territorial sea is measured;
- “Wales” has the meaning given in section 158(1) of the Government of Wales Act 2006.
10
The reference in subsection (8)(a) to water contained in underground strata is to be read in accordance with section 221(3) of the Water Resources Act 1991, as if this section formed part of that Act.
11
Regulations made in reliance on subsection (2)(c)—
a
are not to apply in relation to the Tweed district (as defined in article 2(1) of the Scotland Act 1998 (River Tweed) Order 2006 (S.I. 2006/2913)), but
b
may apply in relation to so much of the River Esk, with its banks and tributary streams up to their source, as is situated in Scotland.
12
Regulations under this section may make provision applying in relation to (and to places above and below) the territorial waters adjacent to any part of England and Wales.