New Water Abstraction Licensing Authorisation in England and Wales

Having been in the public domain since 2003, the alterations to the existing water abstraction licensing authorisations still came as a surprise to many when, on 31 October 2017, the Department for Environment Food & Rural Affairs (DEFRA) and the Welsh Government (WG) published their response to the consultation on altering these authorisations.

As of 1 January 2018, a number of currently exempt abstractions for irrigation (other than spray irrigation), quarry dewatering, abstractions located in geographically exempt areas and abstractions operated by public bodies and statutory undertakers will be required to commence the process of applying for the relevant licences to permit these abstractions.

Whilst the government has responded to the consultation regarding the removal of these exemptions, we are still awaiting definitive guidance documents from the Environment Agency (EA) and Natural Resources Wales (NRW), the statutory bodies responsible for regulating these water abstractions to be published.

So what are the changes?

There are currently approximately 5,000 significant abstractions within England and Wales that are exempt from the abstraction licensing process.  Not only did this lead to a sense of “unfairness” between those operators who were required to have abstraction licences and those that weren’t but also placed undue pressure on the water environment.  In some cases, this pressure was preventing some water bodies from achieving “Good” status under the Water Framework Directive (WFD).

In summary, from 1 January 2018, exempt abstractors will need to review whether their operations remain exempt from licensing or whether now, an abstraction licence is required.  Abstractors who find themselves no longer exempt will have a two-year transitional period in which to apply for the relevant licence to continue their operations.  The EA / NRW then have a further 3 years in which to determine these applications.  The end result being that if an abstraction is already occurring and an application is placed by the end of 2020, then there will be up to a 5 year period of abstraction with no changes from the present regime.

Unfortunately, if abstractions are planned but not already occurring either be it for planned quarries or for proposed increases in exempt abstractions to support economic growth of projects, then as of 1 January 2018 these abstractions will need to be applied for in the standard way.  The 5 year transitional period will not apply to abstractions which are not already occurring.  It is important to note that it can take up to 6 months to obtain relevant licences so acting early is the key to obtaining licences in a timely manner.

It is important to note that holding a currently exempt abstraction does not guarantee the right to obtaining a licensed abstraction in the future although the emphasis of the response from DEFRA and the WG is for the regulators to be pragmatic and flexible to reduce regulatory burdens on abstractors.  Provision is in place for providing compensation through existing and historic charging schemes where an abstractor demonstrates “loss or damage” as a result of altering these licensing requirements.

Wardell Armstrong has a strong background in hydrogeology and permitting across many different sectors.  We can support abstractors by identifying whether their abstractions will remain exempt or will require licensing.  We can provide advice on the evidence required for current abstractions to support abstractors during the transitional period.  We can also provide advice and design on collection of data to support planned abstractions.

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