PART IGENERAL

Citation, commencement and extent

1.—(1) These Regulations may be cited as the Water Resources (Environmental Impact Assessment) (England and Wales) Regulations 2003 and shall come into force on 1st April 2003.

(2) These Regulations extend to England and Wales only.

Interpretation

2.  In these Regulations, expressions which are used in the EIA Directive have the same meaning as in that Directive, and—

“the 1991 Act” means the Water Resources Act 1991(5);

“abstraction or impounding licence” means a licence under Chapter II of Part II of the 1991 Act;

“the Agency” means the Environment Agency;

“appropriate Minister” means—

“authorisation” means—

“consultation bodies” means—

“the EIA Directive” means Council Directive 85/337/EEC, as amended by Council Directive 97/11/EC; and

“relevant project” has the meaning given by regulation 3.

Requirement for an environmental impact assessment

3.—(1) An environmental impact assessment shall be carried out in accordance with these Regulations in relation to a relevant project.

(2) A project is a relevant project if—

(a)it is a water management project for agriculture, including an irrigation project;

(b)in the case of a project involving water abstraction, the amounts abstracted exceed 20 cubic metres in any period of 24 hours; and

(c)it would be likely to have significant effects on the environment by virtue inter alia of its nature, size or location.

(3) A project is not a relevant project if it involves—

(a)development within the meaning of section 55 of the Town and Country Planning Act 1990, or

(b)improvement works within the meaning of the Environmental Impact Assessment (Land Drainage Improvement Works) Regulations 1999(9).

PART IIASSESSMENT OF RELEVANT PROJECTS

Determination whether a project is a relevant project

4.—(1) Any person (“the applicant”) who proposes to apply for, or for the variation of, an authorisation in relation to a project which may be a relevant project, may in writing request the Agency to make a determination whether the project is a relevant project.

(2) The request shall be accompanied by—

(a)a plan sufficient to identify the place where the project is to be carried out;

(b)a brief description of the project and its possible effects on the environment; and

(c)any other information or representations which the applicant wishes the Agency to take into account.

(3) Where the Agency considers that it has insufficient information to determine the request, it shall by notice in writing inform the applicant and specify what further information it requires.

(4) In determining whether a project is a relevant project the Agency shall take into account such of the selection criteria set out in Schedule 1 as are relevant.

(5) The Agency shall give the applicant written notice of its determination before the expiry of—

(a)a period of three weeks beginning with—

(i)the date on which the request is received; or

(ii)where the Agency has served a notice under paragraph (3), the date on which the further information specified is given to the Agency; or

(b)such longer period as may be agreed in writing with the applicant.

(6) Where—

(a)the Agency fails to make a determination before the expiry of the period specified in paragraph (5); or

(b)the applicant is dissatisfied with the Agency’s determination that the proposed abstraction or impounding would amount to or form part of a relevant project,

the applicant may apply to the appropriate Minister for a determination on the matter by notice in writing not later than twenty-eight days after the expiry of that period or, as the case may be, after the date of the determination of the Agency.

(7) Where an application is made to the appropriate Minister under paragraph (6), the appropriate Minister shall send a copy of the application to the Agency.

(8) The appropriate Minister shall by notice in writing given to the applicant and the Agency—

(a)uphold the determination of the Agency; or

(b)substitute his own determination.

(9) A determination under this regulation shall be accompanied by a written statement of the reasons for that determination.

(10) The Agency or, as the case may be, the appropriate Minister shall take such steps as are considered appropriate to make a determination under this regulation available to the public.

(11) The applicant shall include a copy of any determination made under this regulation when he subsequently applies for, or for a variation of, an authorisation in relation to the project in question.

Environmental statement to be provided in relation to an application for authorisation

5.  An environmental statement which complies with regulation 6 shall be provided in relation to an application made after 31st March 2003 for, or for the variation of, an authorisation in connection with a relevant project.

Environmental statement, and opinions of the Agency on the contents of an environmental statement

6.—(1) An environmental statement shall include such of the information set out in Schedule 2 as is relevant to the relevant project and at least the following—

(a)a description of the project comprising information on the site, design and size of the project;

(b)a description of the aspects of the environment likely to be significantly affected by the project;

(c)a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects;

(d)an outline of the main alternatives studied by the applicant and an indication of the main reasons for his choice, taking into account the environmental effects; and

(e)a non-technical summary of the information provided under sub-paragraphs (a) to (d).

(2) If a person so requests before making an application for, or for the variation of, an authorisation, the Agency shall, having consulted the person making the request and the consultation bodies, give an opinion on the information which should be contained in an environmental statement accompanying such an application.

(3) The fact that the Agency has given an opinion under paragraph (2) shall not preclude it from subsequently requiring the person making the request to provide further information.

(4) The Agency and the consultation bodies shall, if requested by a person proposing to make an application for which an environmental statement is required, enter into consultation with him to determine whether they have in their possession any information which may be relevant to the preparation of an environmental statement and, if they have, they shall make it available to him.

(5) Paragraph (4) shall not require the disclosure of information which is capable of being treated as confidential or must be so treated under regulation 4 of the Environmental Information Regulations 1992(10).

(6) Any body which provides information to a person under paragraph (4) may require him to pay a charge which reflects the cost of making that information available.

(7) If the Agency considers that an environmental statement does not contain all the information required by paragraph (1), it shall by notice in writing—

(a)inform the applicant, and

(b)specify what further information the Agency requires,

and the applicant shall provide that information to the Agency.

Publicity for environmental statement

7.—(1) Where an environmental statement or further information is provided in accordance with regulation 6, the applicant shall publish, in the London Gazette and at least once in each of two successive weeks in one or more newspapers circulating in the relevant locality, a notice—

(a)stating the applicant’s name and that he has made an application to which these Regulations apply and has provided the Agency with an environmental statement or further information in accordance with regulation 6;

(b)naming a place in the relevant locality at which copies of the application, the environmental statement and any further information may be inspected free of charge at all reasonable hours within a period of twenty-eight days beginning on the date the notice was published;

(c)specifying an address at which copies of the application, the environmental statement and any further information may be obtained from the applicant and, if a charge is to be made for a copy, the amount (not exceeding a reasonable charge for copying) of the charge; and

(d)stating that any person wishing to make representations in relation to the application should make them to the Agency in writing within a period of twenty-eight days beginning on the date the notice was first published in a newspaper other than the London Gazette, at a specified address nominated by the Agency.

(2) By not later than such date as may be specified by the Agency, the applicant shall send a copy of the notice published in the London Gazette and the environmental statement or, as the case may be, the further information, to—

(a)the consultation bodies;

(b)the appropriate Minister; and

(c)such other persons as the Agency may specify,

under cover of a letter stating that any representations in relation to the application should be made in writing to the Agency within a period of twenty-eight days beginning on the date of the letter.

(3) The applicant shall send to the Agency a copy of any notice published (other than in the London Gazette) under paragraph (1) and any letter sent under paragraph (2).

(4) Notice of an environmental statement under paragraph (1) may be combined with any notice required under other legislation which publicises the application in question.

Determination of application and notice of determination

8.—(1) The Agency shall not determine an application for, or for the variation of, an authorisation relating to a relevant project before the latest date allowed under these Regulations for making representations or concluding any consultation.

(2) In determining the application the Agency shall take into consideration the environmental statement, any further information provided, and any representations relating to the environmental effects of the project made to the Agency in accordance with these Regulations.

(3) Within twenty-eight days of the decision on the application, the Agency shall publish in those newspapers in which a notice was published under regulation 7 a notice stating that the Agency has granted or refused the application and stating a place and times where any person may inspect—

(a)any relevant authorisation or variation;

(b)a document containing the relevant decision and the main reasons and considerations on which it is based; and

(c)a description, where necessary, of the main measures to avoid, reduce and if possible offset the major adverse effects of the project.

(4) No appeal shall be brought under section 43 of the 1991 Act (appeals to the Secretary of State) on the grounds that the Agency has failed to give notice as required by subsection (1)(b) of that section before the expiry of a period of four months commencing with—

(a)the date on which an environmental statement is furnished in accordance with regulation 6(1), or

(b)the date on which any further information requested by the Agency is provided in accordance with regulation 6(7),

whichever is the later.

PART IIIRELEVANT PROJECTS WHICH REQUIRE CONSENT UNDER THESE REGULATIONS

Restriction on abstracting or impounding water

9.—(1) Subject to paragraphs (2) and (3), no person shall—

(a)begin a relevant project except in pursuance of a consent granted under regulation 10 by the Agency, or

(b)carry it out except in accordance with the provisions of that consent.

(2) Consent under regulation 10 is not needed in relation to a project if an abstraction or impounding licence is required.

(3) A person may rely on a consent granted under regulation 10 even though he is not the person to whom the consent was granted.

(4) A person who contravenes paragraph (1) shall be guilty of an offence and liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)on conviction on indictment, to a fine.

Agency’s decision on an application for consent

10.  On an application made in writing to the Agency for a consent for the purposes of regulation 9, the Agency may, subject to the requirements of Part II—

(a)grant a consent containing such provisions as it considers appropriate; or

(b)refuse consent,

taking into account any significant effects the relevant project is likely to have on the environment.

Appeals in relation to consents

11.—(1) Subject to the following provisions of this regulation, where an application has been made to the Agency for a consent under regulation 10, the applicant may by notice in writing appeal to the appropriate Minister if—

(a)the applicant is dissatisfied with the decision of the Agency on the application; or

(b)the Agency fails to give notice to the applicant of the Agency’s decision within a period of three months from the date of receipt of the application or within such extended period as may be agreed in writing between the applicant and the Agency.

(2) A notice of appeal under paragraph (1) shall be served within a period of twenty-eight days from—

(a)the date on which the decision to which it relates was notified to the applicant; or

(b)the end of the period referred to in paragraph (1)(b),

whichever is the later.

(3) The applicant shall serve a copy of the notice of appeal on the Agency before the expiry of the period of twenty-eight days referred to in paragraph (2).

(4) Where any representations in writing with respect to the application were made within the period specified in accordance with regulation 7(1)(d), the Agency shall serve a copy of the notice of appeal on each of the persons who made those representations; and any person so served with a copy of the notice of appeal may make further representations to the appropriate Minister in writing within a period of twenty-one days from the date on which the copy of the notice is served on him.

(5) No appeal shall be brought by virtue of paragraph (1)(b) before the expiry of a period of four months commencing with—

(a)the date on which an environmental statement is furnished in accordance with regulation 6(1), or

(b)the date on which any further information requested by the Agency is provided in accordance with regulation 6(7),

whichever is the later.

(6) The appropriate Minister—

(a)may allow or dismiss the appeal or reverse or vary any part of the decision of the Agency, whether the appeal relates to that part of the decision or not; and

(b)may deal with the application as if it had been made to the appropriate Minister in the first instance.

(7) Before determining the appeal, the appropriate Minister may—

(a)cause a local inquiry to be held; or

(b)afford to the applicant and the Agency an opportunity of appearing before, and being heard by, a person appointed by the appropriate Minister for the purpose;

and the appropriate Minister shall act as mentioned in sub-paragraph (a) or (b) if so requested by the applicant or the Agency.

(8) Subsections (2) to (5) of section 250 of the Local Government Act 1972(11) (local inquiries, evidence and costs) apply in relation to inquiries or other hearings under this regulation as they apply to inquiries under that section, but as if—

(a)the references to the Minister were references to the appropriate Minister; and

(b)the reference in subsection (4) of that section to a local authority were a reference to the Agency.

(9) The appropriate Minister, in determining the appeal, shall take into account—

(a)any further representations in writing received by the appropriate Minister from the persons and within the period referred to in paragraph (4);

(b)the requirements of the applicant, in so far as they appear to the appropriate Minister to be reasonable requirements.

(10) Where the decision on the appeal is that a consent is to be granted, the decision shall include a direction to the Agency to grant a consent containing such provisions as may be specified in the direction.

Validity of decisions of appropriate Minister

12.—(1) Except as provided by the following provisions of this regulation, the validity of a decision of the appropriate Minister on any appeal under regulation 11 shall not be questioned in any legal proceedings whatsoever,

(2) If the Agency or the applicant desires to question the validity of the decision of the appropriate Minister on the grounds—

(a)that the decision is not within the powers of these Regulations; or

(b)that any of the requirements of these Regulations which are applicable to the appeal have not been complied with,

the Agency or, as the case may be, the applicant may, at any time within the period of six weeks beginning with the date on which the decision is made, make an application to the High Court under this regulation.

(3) On any application under paragraph (2), the High Court may by interim order suspend the operation of the decision to which the application relates until the final determination of the proceedings.

(4) If the High Court is satisfied, on an application under paragraph (2)—

(a)that the decision to which the application relates is not within the powers of these Regulations; or

(b)that the interests of the person making the application under this regulation have been substantially prejudiced by a failure to comply with any of the requirements mentioned in paragraph (2)(b) above,

the High Court may quash the decision.

PART IVMODIFICATION OF PART II FOR PARTICULAR CASES

Called-in applications in relation to abstraction or impounding licences

13.  The provisions of regulations 6(7) and 8 shall apply in relation to any called-in application within the meaning of section 42 of the 1991 Act (consideration of called-in applications) as if any reference in those provisions to the Agency were a reference to the appropriate Minister.

Variation of abstraction or impounding licence at instance of Agency or Secretary of State

14.—(1) Where proposals are formulated under section 52(1) of the 1991 Act (proposals for modification at the instance of the Agency or Secretary of State) for the variation of an abstraction or impounding licence, the Agency shall determine whether those proposals would amount to or form part of a relevant project; and in making that determination the Agency shall take into account such of the selection criteria set out in Schedule 1 as are relevant.

(2) The Agency shall give written notice of its determination to the licence holder and to the appropriate Minister.

(3) The appropriate Minister may review the determination of the Agency, by giving notice to the Agency not later than four weeks after the receipt of a notice under paragraph (2); and where he does so, having taken into account such of the selection criteria set out in Schedule 1 as are relevant, he shall by notice in writing given to the licence holder and the Agency—

(a)uphold the determination of the Agency; or

(b)substitute his own determination.

(4) The notice required by section 52(4) of the 1991 Act (notice of proposals formulated under that section)—

(a)in the case of a review under paragraph (3), shall not be served before notice is given to the Agency under that paragraph; and

(b)shall include notice of the determination under this regulation.

Modifications where regulation 14 applies

15.—(1) This regulation applies where it is determined under regulation 14 that the proposals would amount to or form part of a relevant project.

(2) The Agency shall prepare an environmental statement in accordance with regulation 6(1).

(3) Regulations 6(2) to (7), 7 and 8 shall not apply.

(4) Section 52(4) to (8) of the 1991 Act (notice of proposals under that section) shall apply as if the environmental statement were part of the proposals formulated by the Agency.

(5) The Agency shall, not later than the date of publication of the notice for the purposes of section 52(4) of the 1991 Act, send to the appropriate Minister and the consultation bodies a copy of the proposals and the environmental statement under cover of a letter stating that any representations on the proposals should be made in writing to the Agency within a period of twenty-eight days beginning on the date of that notice.

(6) The Agency or, as the case may be, the appropriate Minister shall not determine an application for, or for the variation of, an authorisation relating to a relevant project before the latest date allowed under these Regulations for making representations or concluding any consultation.

(7) In determining whether a licence should be varied, the Agency or, as the case may be, the appropriate Minister shall have regard to the environmental statement and any representations relating to the environmental effects of the project made to the Agency or the appropriate Minister within the period referred to in paragraph (5).

(8) Where a licence is varied in pursuance of proposals to which this regulation applies, the Agency shall, within twenty-eight days of the variation, publish in those newspapers in which a notice was published under section 52(4) of the 1991 Act a notice stating that the Agency has varied the licence, and stating a place where any person may inspect—

(a)the document by which the determination was made;

(b)written notice of the main reasons and considerations on which the determination is based; and where necessary

(c)a description of the main measures to avoid, reduce and if possible offset the major adverse effects of the project.

PART VREGISTERS

Register of environmental statements and further information

16.  The Agency shall keep in the register maintained under section 189 of the 1991 Act (register of abstraction and impounding licences)—

(a)any determination under regulation 4 or 14, and

(b)any environmental statement or further information furnished under regulation 6.

Regulation 4(4)

SCHEDULE 1SELECTION CRITERIA FOR RELEVANT PROJECTS

Characteristics of projects

1.  The characteristics of projects must be considered having regard, in particular, to—

(a)the size of the project;

(b)the cumulation with other projects;

(c)the use of natural resources;

(d)the production of waste;

(e)pollution and nuisances;

(f)the risk of accidents, having regard in particular to substances or technologies used.

Location of projects

2.  The environmental sensitivity of geographical areas likely to be affected by projects must be considered, having regard, in particular, to—

(a)the existing land use;

(b)the relative abundance, quality and regenerative capacity of natural resources in the area;

(c)the absorption capacity of the natural environment, paying particular attention to the following areas—

(i)wetlands;

(ii)coastal zones;

(iii)mountain and forest areas;

(iv)nature reserves and parks;

(v)areas classified or protected under EEA States' legislation; special protection areas designated by EEA States pursuant to Council Directive 79/409/EEC on the conservation of wild birds(12) and Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora(13);

(vi)areas in which the environmental quality standards laid down in Community legislation have already been exceeded;

(vii)densely populated areas;

(viii)landscapes of historical, cultural or archaeological significance.

Characteristics of the potential impact

3.  The potential significant effects of projects must be considered in relation to criteria set out under paragraphs 1 and 2, and having regard in particular to—

(a)the extent of the impact (geographical area and size of the affected population);

(b)the transfrontier nature of the impact;

(c)the magnitude and complexity of the impact;

(d)the probability of the impact;

(e)the duration, frequency and reversibility of the impact.

Regulation 6(1)

SCHEDULE 2INFORMATION ABOUT PROPOSED PROJECT

1.  A description of the project, including in particular:

(a)a description of the physical characteristics of the whole project and the land-use requirements during the construction and operational phases;

(b)a description of the main characteristics of the production processes, for instance, nature and quantity of the materials used;

(c)an estimate, by type and quantity, of expected residues and emissions (water, air and soil pollution, noise, vibration, light, heat, radiation, etc.) resulting from the operation of the proposed project.

2.  An outline of the main alternatives studied by the developer and an indication of the main reasons for his choice, taking into account the environmental effects.

3.  A description of the aspects of the environment likely to be significantly affected by the proposed project, including, in particular, population, fauna, flora, soil, water, air, climatic factors, material assets, including the architectural and archaeological heritage, landscape and the inter-relationship between the above factors.

4.  A description(14) of the likely significant effects of the proposed project on the environment resulting from:

(a)the existence of the project;

(b)the use of natural resources;

(c)the emission of pollutants, the creation of nuisances and the elimination of waste,

and the description by the developer of the forecasting methods used to assess the effects on the environment.

5.  A description of the measures envisaged to prevent, reduce and where possible offset any significant adverse effects on the environment.

6.  A non-technical summary of the information provided under the above headings.

7.  An indication of any difficulties (technical deficiencies or lack of know-how) encountered by the developer in compiling the required information.

Explanatory Note

(This note is not part of the Regulations)

These Regulations complete the implementation, in relation to water management projects for agriculture in England and Wales, of Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment (O.J. No. L175, 5.7.1975, p.40), as amended by Council Directive 97/11/EC (O.J. No. L73, 14.3.1997, p.5).

The Regulations impose procedural requirements in relation to the consideration of applications or proposals for an abstraction or impounding licence under Chapter II of Part II of the Water Resources Act 1991 and require consent in other cases. The Environment Agency is the competent authority in England and Wales for these Regulations.

Part I of the Regulations contains general provisions. Regulation 3 requires an environmental impact assessment (“EIA”) to be carried out for water management projects for agriculture (including irrigation projects) which would be likely to have significant effects on the environment by virtue inter alia of their nature, size or location. Projects involving the abstraction of water are only included if the amounts abstracted exceed 20 cubic metres in any 24 hours. There is an exclusion for development within the meaning of section 55 of the Town and Country Planning Act 1990 and land drainage improvement works (where there are other arrangements for an EIA to be carried out).

Part II of the Regulations provides the procedure for an EIA.

Regulations 4 and 5 provide the procedure for determining whether a water management project requires an EIA, and require an environmental statement to be provided where an EIA is required. The Agency determines, at the request of the person applying or proposing to apply, whether the proposed project is a relevant project, using the selection criteria in Schedule 1. If the person who makes the request is dissatisfied with the Agency’s determination, he may apply to the appropriate Minister to make his own determination. The determination must be made public, and must accompany any subsequent application for authorisation of the project.

Regulation 6 and Schedule 2 set out the information which an environmental statement must contain. The applicant may enter into consultation with any body to determine whether that body possesses information relevant to the environmental statement. The Agency is required to give an opinion on the content of an environmental statement if so requested.

Regulation 7 provides for environmental information to be publicised in the same way as the application. In addition the applicant must send a copy of the application and the environmental information to the consultation bodies defined in regulation 2.

Regulation 8 requires the Agency or the appropriate Minister to have regard to the environmental information provided and any representations received in determining the application. A notice of the outcome must be published stating where the relevant documentation is available for public inspection.

Part III of the Regulations provides for relevant projects which require consent under these Regulations. Regulation 9 makes it an offence to begin or carry out a relevant project without the Agency’s consent in cases where no abstraction or impounding licence is required. The Agency may grant or refuse such consent taking into account any significant effects the project is likely to have on the environment: regulation 10.

Regulations 11 and 12 provide for appeals to be made to the appropriate Minister where the applicant is dissatisfied with the Agency’s decision on an application for consent under regulation 10, and for decisions of the appropriate Minister on such appeals to be challenged in the High Court within 6 weeks.

Part IV of the Regulations applies the Regulations with modifications to licence applications called in by the appropriate Minister and proposals for modification of abstraction or impounding licences.

Part V of the Regulations requires determinations of whether a project requires EIA, and environmental statements or further information provided under these Regulations, to be kept in the Agency’s register of abstraction and impounding licences.

A Regulatory Impact Appraisal has been prepared in connection with these Regulations. It has been placed in the Library of each House of Parliament, and copies may be obtained from WSR5 Division, Department for Environment, Food and Rural Affairs, Ashdown House, 123 Victoria Street, London SW1E 6DE (telephone 020-7944-5368).