The control of water pollution is covered by four principal statutes:
- Pollution Prevention and Control Act 1999 – water pollution considerations are incorporated into the Integrated Pollution Prevention and Control regime) (IPPC);
- Water Resources Act 1991 - pollution of ‘controlled’ waters including the release of effluent into such waters;
- Water Industry Act 1991 - control of sewage effluent (and of trade effluent entering the sewerage system).
- Water Act 2003
Water Act 2003
The Water Act 2003 modernises water legislation and builds upon existing legislation to:
- further the sustainable use of water resources;
- strengthen the voice of water consumers;
- increase the opportunity for competition in the supply of water; and
- promote water conservation
The Act links water abstraction licensing to local water resource availability. It moves from a licensing scheme based on purpose of use to one based on volume consumed. Time-limited licences will increase flexibility to make changes to abstraction rights in the face of climate change and increased demand.
The Act provides a new regulatory framework for the water industry to improve quality of service. It strengthens regulatory consistency and transparency by replacing the Director General of Water Services with a Regulatory Authority. The Act also places consumers at the heart of water regulation by setting up an independent Consumer Council for Water. The Act also transfers responsibility from local authorities to the Agency for reservoir safety and simplifies the administrative arrangements for managing flood defence.The Act gives new entrant water suppliers the opportunity to supply water to large commercial and industrial consumers. This signals a new approach to competition in the water industry.
The Water Act 2003 makes changes to provisions for water abstraction licensing in the Water Resources Act 1991. Under the Act, there will be three types of abstraction licence; a full licence required for any abstraction lasting longer than 28 days; a transfer licence for transferring water from an excavation to a watercourse; and a temporary licence for abstractions lasting less than 28 days. Only full licences will be subject to annual abstraction charges, although a proposed application fee of £135 will be charged plus charges to cover the costs of advertising. New licences will generally be limited to 12 years, and financial incentives will be offered for those with current permanent licences to switch to time limited licences. It requires those carrying out dewatering activities to apply for a licence to do so and exempts small abstractors of water (under 20 m3/day). The Environment Agency has been given powers to remove a license if they are causing serious damage to the environment.
Enforcement and works notices will be used where abstraction or impoundment occurs without a licence or contravening its terms. The EU habitats and birds Directive will require the EA to modify the terms of licences where abstraction is having a negative environmental impact. Some licence holders will be entitled to compensation for these changes.
The Act is intended to increase the flexibility, accountability and efficiency of the abstraction and impounding licensing system, with the intended result of increasing the ease of access to sustainable water resources.
Water Environment (Water Framework Directive) (England and Wales) Regulations 2003
The principle legislation governing protection of the water environment comes from the European Union, in the form of the Water Framework Directive (originally, 1976). This has been revised and reissued (Directive 2000/60/EC) which has been adopted in UK law via the Water Environment (Water Framework Directive) (England and Wales) Regulations 2003. The new framework Directive is leading to changes to all UK water legislation listed above to reflect the EU Directive. The Directive states that surface and ground water conditions should achieve 'good' status and that river basin management plans should be constructed to take account of local conditions. Plans should include environmental objectives. The framework Directive has a planning and implementation timetable which concludes in 2012.
The EU Dangerous Substances in Water Directive 2006 (2006/11/EC) requires Member States to phase out discharges of the most dangerous (List I often referred to as the Black List) substances completely and to reduce discharges of other (List II) substances.
Pollution Prevention and Control Act 1999
Water pollution considerations are incorporated into the Integrated Pollution Prevention and Control (IPPC) regime established by the Pollution Prevention and Control Act 1999. Thus discharges to controlled waters from installations subject to IPPC need authorisation (from the Environment Agency). Discharges to sewer from an IPPC process are subject to both authorisation from the Agency (in consultation with the relevant Sewerage Undertaker) and a consent from the Sewerage Undertaker.
Water Resources Act 1991 (WRA91) - Part III
Sets out provisions for the protection and improvement of the quality of ‘controlled’ waters, which include virtually all natural waters including inland fresh waters, groundwaters, coastal and certain territorial waters. Section 104 of WRA91 defines ‘controlled’ waters.
The regulatory authority is the Environment Agency.
Under section 85 of WRA91 it is an offence to cause or knowingly permit any poisonous, noxious or polluting matter, or any solid waste, to enter any controlled water unless it is subject to a consent, or an appropriate authorisation or licence (section 88). Schedule 10 sets out the requirements concerning the application, determination and revocation of discharge consents and for the modification of consent conditions. The schedule also lists the type of conditions which the regulator may wish to include in the consent - paragraph 2(5) - for example, regarding the volume, rate and composition of the effluent, and the timing of its discharge. Conditions may also relate to the discharge location, treatment requirements, monitoring and record keeping.
Section 82 enables the introduction of regulations to establish a system of classifying the quality of ‘controlled’ waters. This classification will set out specific requirements - for example, concerning the concentration of substances present in that type of controlled water or for certain parameters (e.g. dissolved oxygen, pH).
Section 83 provides for Statutory Water Quality Objectives (SWQOs) to be established for individual stretches of water. SWQOs will incorporate the requirements of the relevant classification and set a date by which such requirements are to be achieved.
Discharge consents are to ensure that any SWQOs for the relevant receiving water are, as far as it is practicable, achieved at all times (section 84). Therefore these objectives will be taken into account when setting consent conditions. Since the Environment Agency has duties to meet any EU environmental quality standards for water, these will also be taken into account when determining consent conditions.
Section 93 empowers the Secretary of State to designate an area as a ‘water protection zone’ in which certain activities that might cause pollution can be prohibited.
Groundwater Regulations 1998 (SI 1998/2746)
These implement the EU Groundwater Directive (80/68/EEC). They aim to prevent pollution of groundwater by controlling discharges of EC List I and II (‘Black’ and ‘Grey’ lists) substances where they are not already covered by existing legislation (e.g. IPC or discharge consents). Authorisations are required for the disposal of substances direct to land.
Discharges of dangerous substances to groundwater are excluded from the EU Dangerous Substances in Water Directive 2006 (2006/11/EC) and are regulated by the EU Directive on the Protection of Groundwater against Pollution and Deterioration 2006 (2006/118/EC)
The Anti-Pollution Works Regulations 1999 (SI 1999/1006)
The Regulations prescribe the contents of anti-pollution works notices, which the Environment Agency can place on people or sites in the event of potential or actual pollution incidents. Such notices can be given if, in the Agency’s opinion, substances or waste have entered, or are likely to enter, identified waters. This means that the people or site concerned will be responsible for dealing with (and paying for) the incident or potential incident, whereas previously, the Agency had powers to do so and then pass the charge the relevant company or personnel. The Regulations also cover the procedure to be followed in relation to appeals against these works notices and the particulars that are to be placed on pollution control registers.
Control of Pollution (Oil Storage) (England) Regulations 2001 (SI 2001/2954)
These apply to any company that stores more than 200 litres of oil. They require oil to be stored in a way that prevents the pollution of controlled water via leakage or spills. The requirements are based closely on the original recommendations in the Environment Agency’s Pollution Prevention Guideline on Oil Storage.
Included in the requirements are that oil containers must be of sufficient strength and structural integrity to ensure that it is unlikely to burst or leak in its ordinary use. Oil containers must be stored in secondary containment (e.g. bunds, drip trays, purpose built cabinets) that are capable of holding not less than 110% of the container’s storage capacity. Any valve, gauge, pipe or other equipment ancillary to the container must be situated within the secondary containment system. All facilities must have complied with these regulations by 1st September 2005.
Waste oil, and that contained wholly within a building or underground, is exempt from these Regulations.
Water Industry Act 1991 (WIA91) - Part IV
Section 118 of WIA91 requires that trade effluent may only discharged into a public sewer with the consent and agreement of the relevant Sewerage Undertaker (Water Services Company).
The Act sets out the application and appeals procedures. Under section 121 it lists the type of conditions which the Sewerage Undertaker may wish to include in the consent - for example, regarding the volume, rate and composition of the effluent and the timing of its discharge. Conditions may also relate to the sewer into which the discharge can occur, sampling and testing facilities, and record keeping requirements.
Section 120 requires that applications for consent where the discharge contains any ‘special category effluent’ are referred to the Secretary of State (in practice the Environment Agency). Section 138 provides for ‘special category effluent’ to be that effluent containing prescribed substances or derived from prescribed processes.
Trade Effluents (Prescribed Processes and Substances) Regulations 1989 (SI 1989/1156) as amended by SIs 1990/1629 and 1992/339
Originally made under the Water Act 1989, these Regulations prescribe the substances and processes which are treated as ‘special category effluent’ under WIA91 (and therefore require referral to the Environment Agency). Stringent controls apply to such effluents.
The substances include the UK’s ‘Red List’ of dangerous substances (refer to Appendix 9), plus carbon tetrachloride, and effluent which is likely to result in the release of 30 kg or more of trichloroethylene or perchloroethylene in a year. Prescribed processes include those manufacturing certain asbestos products, paper pulp manufacturing, production of chlorinated organic chemicals, and processes discharging chlorinated effluents.
The regulations implement requirements resulting from EU Directive 76/464/EEC on pollution caused by discharges to the aquatic environment and EU Directive 87/217/EEC on the prevention and reduction of pollution by asbestos.
Water Supply (Water Fittings) Regulations 1999 (SI 1999/1148) as amended by SI 1999/1506
The regulations cover new domestic and commercial plumbing installations and fittings. They aim to prevent both the waste and contamination of water supplies. They came into force on 1 July 1999 and replace the Water By-laws in England and Wales. They set design requirements for new toilets from January 2001, such as reduction in amount of water use, dual flush and prevention of backflow. The water companies will be authorised to establish approved contractors schemes. These will involve the promotion of qualified installers, in return for which the contractor will take on liability for the work undertaken from the owner or occupier.
The Environment Act 1995 (Schedule 22) amends the WRA91 by inserting new sections (161A and 161C).
These establish enforcement powers which allows the Environment Agency to serve notices on actual or potential polluters requiring them to carry out works to clean up or prevent water pollution. Non-compliance is an offence.
Control of Pollution (Applications, Appeals and Registers) Regulations 1996 (SI 1996/2971) as amended by SI 1999/1006
Set out the detailed procedures, including advertising and consultation requirements, to be followed in relation to an application for a consent to discharge to ‘controlled’ waters (i.e. as required under the Water Resources Act 1991). They also set out appeals procedures and detail the type information (including consent conditions, monitoring information and details of appeals), which are to be entered onto public registers maintained by the Agency.
Refer also to the section in this register on Integrated Pollution Prevention and Control.
The Water Resources (Abstraction and Impounding) Regulations 2006
These Regulations contain provisions relating to the licensing of abstraction and impounding of water in England and Wales in the light of amendments made by the Water Act 2003 to the Water Resources Act 1991.
The regulations detail the information required to support an application for an abstraction license or an impounding license, other than those seeking to vary such a license so as to reduce the quantity of water authorised to be abstracted, and the form in which it must be submitted. Applications for licenses must be made to the Environment Agency, which must acknowledge their receipt within 21 days and reach a decision within four months after that - or 28 days for temporary licenses. This can be extended if the Agency has to ask the applicant for more information.
The Agency can reject or modify applications - and can propose a different type of license - but must explain its reasons for doing so. Applicants have 28 days to lodge appeals.
They also give the Agency powers to issue enforcement notices to require work to comply with a license, or repair damage caused by impoundment or abstraction conducted without a license or which contravenes the terms of a licence.