Changing abstraction licences into permits – NFU response

Overview

Access to water is vital to society and a wide range of people depend on it, from households to farmers and industry. Most businesses taking more than 20,000 litres of water a day directly from rivers or groundwater require an abstraction licence.

The Environment Agency’s plan to move abstraction and impounding regulations into the EPR proposes to provide a more modern and consistent legal framework for management of abstraction and impounding activities and protect the environment.

The consultation ran for 12 weeks, from the 29 September to the 22 December 2021 and covered all abstraction and impounding licences regulated by the Environment Agency.

NFU response

The NFU does not believe that the EPR is a good fit for abstraction licensing for a number of reasons outlined in our response, including:

The NFU does not believe that the environmental permitting regime is a good fit for abstraction licensing.
Permits being reviewable at potentially any time significantly reduces the certainty of long-term access to water, creating doubt regarding the future of some farming businesses.

Environmental permitting could result in significant cost increases for farmers compared to those which apply in relation to abstraction licensing.

The NFU is extremely disappointed that this consultation is taking place before the relevant statutory instrument is drafted.

The transition to environmental permitting must be framed so that it enables innovation rather than acts as a barrier to it.

The NFU believes that continued engagement with Defra and the Environment will be essential to develop farm-specific guidance on the technical issues that will inevitably arise from environmental permitting.

Download the full Abstraction and impounding licensing response to the initial consultation.

The NFU position on abstraction and EPR is that we oppose the proposed changes because:

• The activity of abstraction is a poor regulatory fit for EPR.
• It will lead to reduced certainty of access to supplies of water because all permits will be reviewable by the Environment Agency.
• Abstractors face the erosion of historic rights because EPR includes no compensation provisions.
• Enforcement and compliance of the EPR regime will increase the burden of administration and increase business costs.

Applications for permits

The consultation proposes that, from a fixed date (not yet specified, probably in 2023), all new abstraction applications will be treated as applications for permits.

From that date, all existing abstraction and impounding licences will automatically and legally become environmental permits referred to as ‘converted’ (or transitional) permits.

Relevant legal documents

Existing licences holders will automatically become ‘operators’ (as defined by EPR) for the duration of the term of the converted (transitional) permit.

Existing conditions in the licence will remain the same and there will be no re-issue of any documents as part of the move – paper licences will continue to be the relevant legal document for a converted (transitional) permit.

Thereafter licences will gradually migrate into EPR and become full permits.

Complex legal issues

The Defra consultation described how different types of current authorisation will change after the switch to EPR – permanent and time limited licences, spray and trickle irrigation, groundwater investigation consents and impoundment licences.

Much of the content of the consultation dealt with complex legal issues such as appeals, compliance and enforcement, vesting of permits and duties for climate change adaptation and the NFU has developed clear positions on each topic.

Members can read the NFU consultation response here.

Government response

The government response is expected in summer 2022 after they consider and analyse 100 responses to the consultation.

While we wait for further guidance, we have updated information following consultation with the Environment Agency.

Member briefing

Regarding several points to do with wording in the consultation, there is a need for clearer detail. 

In our briefing for members, we take a look at these areas and try to answer some pressing questions.

The EPR abstraction consultation covers all abstraction and impounding licences regulated by the Environment Agency, but does not apply to licences regulated by Natural Resources Wales, which will be subject to separate arrangements. 

Defra believes this move will allow for further rationalisation and unification of regulations so that the majority of environmental permissions will fit under one legal framework.

However, the NFU remains concerned that the site-specific characteristics and use of abstracted water by farmers and growers makes it a poor fit for absorption into the EPR regulatory framework.

Key issues

Many of the details about how licences will be transferred into permits remain unknown or unresolved. Therefore the practical application of EPR on farms will take several years to take full effect through a planned transitional process.

Nevertheless, the gradual shift to abstraction permits heralds a new way of managing and regulating water. The NFU is urging members to understand the implications of these changes and what they might mean for their long-term planning and protecting the security of their water supplies.

This is particularly important because, unlike many abstraction licences, permits will be subject to periodic review.

This means that the historic, protected rights which are an important feature of ‘licences of right’ - as they afford planning and investment certainty to the farm business - could erode and disappear.