The Water Abstraction Plan 2017 aims to address unsustainable abstraction. The EA (Environment Agency) has been working on a number of programmes to look at abstraction across all sectors to ensure it is sustainable and does not pose a risk of damage to the environment.
These programmes of work could affect both time limited and permanent abstraction licences (licences of right).
They seek to bring abstraction levels down to more sustainable levels, particularly in those catchments that have SACs (Special Areas of Conservation). If you are a licenced water abstractor (both Time Limited Licences and licences of right), especially in areas where there is water stress, you may be in receipt of a letter from the EA warning your licence is under review.
Restoring sustainable abstraction programme
The aim of this programme is to identify over-abstraction in rivers and wetland sites and, where possible, put it right.
The European Birds and Habitats Directives requires the EA to pay heed to over-abstraction by reviewing licensed abstractions in designated areas.
If the EA determines that your abstraction is risking serious damage to the environment, it is required to reduce or revoke the licence.
Catchments under review may pause the issuing or renewing of licences while the outcome of the review is awaited. The EA should provide a date by which the outcome will be known. There may be recourse to challenge any decision made by the EA but specialist help should be sought.
Unused and underused license programme
The aim of this programme is to remove unused and unneeded volume from licences where it is no longer required which:
- allows the removal of risk of deterioration
- allows the removal of risk of serious damage if the water is used in the future; and
- potentially makes water available for other licence holders who may have a sustainable and legitimate need for the water.
This may be applicable if the licence holder has abstracted 75% or less of their annual licensed volume for ten years or more before the date on which notice of the variation is given by the EA.
If you receive a letter warning that your licenced volume will be reduced unless you can justify holding a licence of that volume, it is important that you respond to the EA to discuss options or to explain why you need the volume.
You may be asked to demonstrate:
- how you use water efficiently, such as irrigating at night or checking your pipes for leaks
- your need to abstract the same quantities of water as your current licence and what you use the water for
- how you’ve worked out the amount you use.
Failure to do so will result in a Section 52 notice being served giving the EA’s proposed changes to your licence. Objecting to this can involve a long, more complex, legal case with associated costs.
Environment Act 2021 – programme relating to new EA powers
The Environment Act 2021 allows the Secretary of State to vary or revoke permanent abstraction licences without payment of compensation from 1 January 2028, if necessary, to protect the environment.
Permanent abstraction licences may be varied or revoked on or after 1 January 2028, without the payment of compensation where:
- it is necessary having regard to a relevant environmental objective, or
- to otherwise protect the water environment from damage.
The second point above potentially gives the EA quite broad powers to propose changes to licences. The EA is currently undertaking a catchment review process based on the Common End Dates for Time Limited Licences.
The EA is writing to those abstraction licence holders that may be causing damage to provide up to six years early notice and further information. The EA will provide three sets of notifications to those whose licences will potentially be changed, early notification of potential licence reductions, followed by expected licence reductions as the review progresses, and finally confirmation of licence reductions before implementation.
The catchment review programme will be completed by 2035 and some licence holders have already received early notification of potential licence changes.
Anyone who receives a letter stating that their licence may be reviewed should consider taking independent legal advice to ensure that they understand the implications of the letter, the process that will be followed and the opportunities to influence the final decision.
It is important to engage with the process to ensure that you do not miss any opportunities to present your case. You may also wish to consider whether it is necessary to gather your own expert evidence to support your case.
Those in areas where there is known to be pressure on water resources may also wish to consider their long-term position, working with the EA on voluntary solutions and investigate the potential for finding other sources of water.
These are often long-term projects, and require significant investment, so advance planning is often essential.
Where there are a number of abstractors in the area it may be worth setting up a WAG (water abstractors group).
Key examples of existing WAGs are the BAWAG (Broadlands Agricultural Water Abstraction Group) and ESWAG (East Suffolk Water Abstractor Group).
A WAG has the benefit of collective engagement with the EA, more influence in local policy making, access to training on water resources issues and potentially in applying for grant funding.
More information on these is available through the UK Irrigation Association.
Environmental destinations
To support water planning, the ED (environmental destination) sets out a range by which current abstraction may need to change to protect the environment. It is through the planning process that the range can be refined, solutions identified and the pace and extent to which these changes can be achieved.
The guidance behind the ED is underpinned by five key planning principles:
- Understand long-term environmental requirements for water resources: Environment scenarios are used to understand where and by how much abstraction might need to change to meet the full range of environmental legislation (England) and government commitments for protecting the environment from over abstraction.
- Account for a changing climate: A range of predicted climate change impacts are used to understand the potential effects on future water availability.
- Plan for the full range of environmental requirements: Long-term plans for water resource management consider how the full range of environmental legislation (England) government commitments for the water environment can be achieved in a changing climate.
- Use best available evidence: Planning for the environment is based on best available data and evidence using nationally derived datasets as a starting point and subsequently improved with local information.
- Consider local priorities to inform the pace of delivery: Delivery to meet environmental requirements can be informed by stakeholder priorities, where consistent with statutory requirements.
These principles are expected to be embedded in the planning process (for example in the development of regional water resources plans). ED is intended to take a multi-sector approach that will consider options from groups of abstractors or regional water resources groups as alternatives to a default fair-share approach in meeting abstraction targets.
Regional groups and groups of farmers are being supported by the EA to incorporate agriculture in the planning process and to better define options for meeting future water needs.
The recommendations of Independent review of the water sector are for significant change in the regulation of the sector, which may impact on this process. A future government white oaper and new legislation in 2026 will set out the path for this change.
Changing licences into permits?
In December 2021, Defra consulted on plans to move abstraction licencing into the Environmental Permitting Regulations. The consultation was not to decide if the move to permits should take place, but just on the policy associated with it.
The NFU provided a detailed response to the consultation: Changing abstraction licences into permits – NFU response
The independent review of the water sector has recommended the implementation of permits for water resources (recommendation 36) in the final report. It is not expected to have any changes in the current licencing system to introduce permitting until the government white paper responding to the review is published or within the 2025/26 period.
How the NFU can support you
NFU members can obtain free initial legal and professional advice by calling NFU CallFirst on 0370 845 8458. If you require more detailed independent legal advice in your particular circumstances, NFU CallFirst can refer you to one of the NFU’s legal panel firms.
