Citation, commencement and interpretation

1.-(1) These Regulations may be cited as the Water Resources (Environmental Impact Assessment) (England and Wales) (Amendment) Regulations 2017 and come into force on 16th May 2017.

(2) In these Regulations, "the 2003 Regulations" means the Water Resources (Environmental Impact Assessment) (England and Wales) Regulations 2003(3).

Amendments to the 2003 Regulations

2.  The 2003 Regulations are amended in accordance with regulations 3 to 18.

Amendments to regulation 2

3.-(1) Regulation 2 (interpretation) is renumbered as paragraph (1) of that regulation.

(2) In paragraph (1) (as renumbered)-

(a)at the appropriate places insert-

""environmental impact assessment" means-

""environmental statement" has the meaning given in regulation 5;";

""EU environmental assessment" means an assessment carried out-

of the effect of anything on the environment;;";

""the Habitats Directive" means Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora(4) as last amended by Council Directive 2013/17/EU(5);";

""UK environmental assessment" means an assessment carried out in accordance with an obligation under the law of any part of the United Kingdom of the effect of anything on the environment;";

""the Wild Birds Directive" means Directive 2009/147/EC of the European Parliament and of the Council on the conservation of wild birds(6), as amended by Council Directive 2013/17/EU;";

(b)in the definition of "appropriate Minister", for paragraph (a) substitute-

"(a)in relation to a project in Wales, the Welsh Ministers;";

(c)in the definition of "consultation bodies"(7)-

(i)in paragraph (b) for "the Countryside Agency, English Nature" substitute "Natural England(8)";

(ii)in paragraph (c) for "National Assembly for Wales in its" substitute "Welsh Ministers for the";

(iii)in paragraph (d) after "responsibilities" insert "or local or regional competences";

(d)for the definition of the "EIA Directive"(9) substitute-

""the EIA Directive" means Directive 2011/92/EU of the European Parliament and of the Council on the assessment of the effects of certain public and private projects on the environment(10), as amended by Directive 2014/52/EU of the European Parliament and of the Council(11);".

(3) After paragraph (1) (as renumbered) insert-

"(2) In these Regulations, any reference to the likely significant effects, or the likely significant adverse effects, of a relevant project, or a project which may be a relevant project, on the environment includes a reference to the effects of that project on the environment once any construction, installation or other intervention is completed and in operation.

(3) In paragraph (2) each reference to the environment includes a reference to the matters referred to in regulation 7A(2)(a) to (e).".

Amendment to regulation 3

4.  For paragraph (3) of regulation 3 (requirement for an environmental impact assessment) substitute-

"(3) A project is not a relevant project if it-

(a)involves development within the meaning of section 55 of the Town and Country Planning Act 1990(12);

(b)involves improvement works within the meaning of the Environmental Impact Assessment (Land Drainage Improvement Works) Regulations 1999(13); or

(c)is exempt in accordance with a direction under regulation 3A(1) or (2) or 3B(1).".

New regulations 3A to 3C

5.  After regulation 3 insert-

"Defence and civil emergencies

3A.-(1) The Secretary of State may direct that a relevant project, or a project which may be a relevant project, is exempt where-

(a)the project has national defence as its sole purpose; and

(b)the Secretary of State considers that an environmental impact assessment in respect of the project would have an adverse effect on the fulfilment of that purpose.

(2) The appropriate Minister may direct that a relevant project, or a project which may be a relevant project, is exempt where-

(a)the project has the response to a civil emergency as its sole purpose; and

(b)the appropriate Minister considers that an environmental impact assessment in respect of the project would have an adverse effect on the fulfilment of that purpose.

(3) Following a direction under paragraph (1) or (2), the person who gave the direction must send notice in writing of the direction to the relevant appropriate authority.

(4) Following a direction under paragraph (1) in respect of a project in Wales, the Secretary of State must send notice in writing of the direction to the Welsh Ministers.

Exceptional circumstances

3B.-(1) The appropriate Minister may direct that a relevant project, or a project which may be a relevant project, is exempt where the circumstances are exceptional and the appropriate Minister considers that-

(a)an environmental impact assessment would have an adverse effect on the fulfilment of the project's purpose; and

(b)the objectives of the EIA Directive will be met even though such an assessment is not carried out.

(2) Where the appropriate Minister gives a direction that a relevant project, or a project which may be a relevant project, is exempt under paragraph (1), the appropriate Minister must-

(a)consider whether another form of assessment of the likely significant effects on the environment of the project is appropriate; and

(b)make available to the public concerned-

(i)the direction including an explanation of the reasons for it; and

(ii)the information obtained under any other assessment referred to in sub-paragraph (a).

Coordination

3C.  Where, in respect of a relevant project, there is a requirement to carry out an environmental impact assessment and a requirement to carry out an assessment under regulation 21 or 61 of the Conservation of Habitats and Species Regulations 2010(14), the appropriate Minister must, where appropriate, ensure that the environmental impact assessment and the other assessment, or assessments, are coordinated.".

Amendments to regulation 4

6.-(1) Regulation 4(15) (determination whether a project is a relevant project) is amended as follows.

(2) For paragraph (2) substitute-

"(2) The request shall contain-

(a)a description of the project, including in particular a description-

(i)of the physical characteristics of the whole project and, where relevant, of demolition works; and

(ii)of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected;

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

(c)a description of any likely significant effects, to the extent of the information available on such effects, of the project on the environment resulting from-

(i)the expected residues and emissions and the production of waste, where relevant; and

(ii)the use of natural resources, in particular soil, land, water and biodiversity; and

(d)if the applicant elects to provide it, a description of any measure proposed to be taken to avoid or prevent any likely significant adverse effects on the environment.

(2A) When compiling the information referred to in paragraph (2), the applicant shall take into account-

(a)the selection criteria set out in Schedule 1; and

(b)the results of any relevant EU environmental assessment which are reasonably available to the applicant.".

(3) For paragraph (4) substitute-

"(4) In determining whether a project is a relevant project the appropriate authority shall take into account-

(a)the selection criteria set out in Schedule 1; and

(b)the results of any relevant EU environmental assessment which are reasonably available to the applicant.".

(4) For paragraph (5)(b) substitute-

"(b)where agreed in writing with the applicant, any other period of not more than 90 days beginning with-

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

(ii)where the appropriate authority has served a notice under paragraph (3), the date on which the further information is given to the appropriate authority.".

(5) After paragraph (5) insert-

"(5A) The appropriate authority-

(a)may extend the period referred to in paragraph (5) in exceptional cases (such as where the nature, complexity, location or size of the works demands a longer period for determination); and

(b)where it does so, shall inform the applicant in writing of the reasons for the extension and of the date on which its determination under paragraph (1) is expected.".

(6) For paragraph (9) substitute-

"(9) A determination under this regulation shall be accompanied by a written statement-

(a)of the reasons for the determination with reference to such of the selection criteria set out in Schedule 1 as are relevant; and

(b)if the determination under paragraph (1) is that the project is not a relevant project, describing any measure disclosed under paragraph (2)(d).".

Amendments to regulation 5

7.  In regulation 5 (environmental statement to be provided in relation to an application for authorisation)-

(a)for "An environmental statement" substitute "A written statement (an "environmental statement")";

(b)omit "made after 31st March 2003".

Amendments to regulation 6

8.-(1) Regulation 6 (environmental statement, and opinions of the appropriate authority on the contents of an environmental statement) is amended as follows.

(2) For paragraph (1) substitute-

"(1) The environmental statement shall be prepared by a competent person and shall-

(a)include-

(i)the information specified in paragraph (1A); and

(ii)any additional information which, taking into account current knowledge and methods of assessment, may reasonably be required by the appropriate authority to reach a conclusion about the likely significant environmental effects of the relevant project;

(b)be based on any opinion given under paragraph (2) in respect of the relevant project;

(c)take into account the results of any relevant UK environmental assessment which are reasonably available to the applicant; and

(d)state the relevant expertise and qualifications of the competent person.

(1A) The specified information is-

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

(b)a description of the likely significant effects of the relevant project on the environment;

(c)a description of the features of the relevant project or measures to avoid, prevent, reduce or offset any likely significant adverse effects of the relevant project on the environment;

(d)a description of the reasonable alternatives studied by the applicant, which are relevant to the relevant project and its specific characteristics, and an indication of the main reasons for the applicant's choice, taking into account the environmental effects;

(e)a non-technical summary of the information referred to in sub-paragraphs (a) to (d); and

(f)any additional information referred to in Schedule 2 relevant to the specific characteristics of the relevant project and to the environmental features likely to be affected.".

(3) In paragraph (2) after "opinion on the" insert "scope and level of detail of".

(4) After paragraph (2) insert-

"(2A) The request for an opinion under paragraph (2) shall be in writing and include-

(a)a plan sufficient to identify the land;

(b)a brief description of the nature and purpose of the relevant project, including its location and technical capacity;

(c)an explanation of the likely significant effects of the relevant project on the environment; and

(d)any other information the person wishes to provide.".

Amendments to regulation 7

9.-(1) Regulation 7 (publicity for environmental statement and related information) is amended as follows.

(2) In paragraph (1)(b) for "twenty-eight" substitute "thirty".

(3) In paragraph (1)(e) for "twenty-eight" substitute "thirty".

(4) In paragraph (3)(a) for "twenty-eight" substitute "thirty".

(5) In paragraph (4), in the words after sub-paragraph (c) for "twenty-eight" substitute "thirty".

New regulation 7A

10.  After regulation 7 insert-

"Conclusion about environmental impact

7A.-(1) The appropriate authority must consider (ensuring that in doing so it has or has access to any expertise it considers necessary)-

(a)the environmental statement;

(b)any further information given under regulation 6(3) or (7);

(c)any representations made under regulation 7(1)(e) or (4); and

(d)any features of the relevant project or measures to avoid, prevent, reduce or offset any likely significant adverse effects of the relevant project on the environment.

(2) Following that consideration, the appropriate authority must reach a conclusion about the likely significant effects (including the expected effects deriving from the vulnerability of the relevant project to risks of major accidents or disasters) of the relevant project on-

(a)population and human health;

(b)biodiversity, with particular attention to species and habitats protected under the Habitats Directive and the Wild Birds Directive;

(c)land, soil, water, air and climate;

(d)material assets, cultural heritage and the landscape;

(e)the interaction between the factors referred to in sub-paragraphs (a) to (d).".

Amendment to regulation 8

11.-(1) Regulation 8 (determination of application and notice of determination) is amended as follows.

(2) In paragraph (2)-

(a)for the words from "the environmental statement" to the end substitute-

"(ensuring that in doing so it has, or has access to, any expertise it considers necessary)-

(a)the conclusion reached under regulation 7A(2);

(b)whether it is appropriate to require the applicant to monitor the significant adverse effects of the relevant project on the environment, and if so-

(i)whether the authorisation should contain provisions to ensure that the applicant is under such a duty; and

(ii)whether the authorisation should contain provisions to require remedial action to be taken in circumstances described in the authorisation; and

(c)whether, having regard to the likely significant environmental effects of the relevant project, the authorisation should contain provisions for any other purpose.".

(3) After paragraph 2 insert-

"(2A) The appropriate authority may grant the authorisation only if satisfied that the conclusion reached under regulation 7A(2) in respect of the relevant project and the reasons for it address the likely significant environmental effects of the relevant project.".

(4) For paragraph (3)(16) substitute-

"(3) Within a period of twenty-eight days beginning with the date of the determination of the application the appropriate authority shall-

(a)give notice in writing to the applicant and consultation bodies; and

(b)publish a notice on its website and in the newspaper or newspapers in which the notice was published under regulation 7(1),

stating that the appropriate authority has granted or refused the application and stating a place and times where any person may inspect the information referred to in paragraph (3A).

(3A) The information is-

(a)any relevant authorisation or variation;

(b)a document containing the determination and the reasons for it, including a summary of-

(i)the environmental statement;

(ii)the results of any representations the appropriate authority receives under regulation 7(1)(e) or (4); and

(iii)how the information referred to in sub-paragraphs (i) and (ii) has been taken into account;

(c)a description, where necessary, of any features of the relevant project or measures to avoid, reduce or offset any likely significant adverse effect of the relevant project on the environment; and

(d)information about any right to challenge the determination and the procedures for doing so.".

Amendment to regulation 13

12.  In regulation 13 (called-in applications in relation to abstraction or impounding licences) after "6(7)" insert ", 7A".

Amendment to regulation 15

13.  In paragraph (4) of regulation 15 (modifications where regulation 14 applies) for "(8)(17)" substitute "(7)(18)".

Amendment to heading to Part 5

14.  In the heading to Part 5 after "Registers" insert "and review".

Amendments to regulation 16

15.-(1) Regulation 16 (register of environmental statements and further information) is amended as follows.

(2) Regulation 16 is renumbered as paragraph (1) of that regulation.

(3) After paragraph (1) (as renumbered) insert-

"(2) In respect of a determination under regulation 4, the information kept in the register shall include-

(a)the main reasons for the determination with reference to the relevant criteria listed in Schedule 1; and

(b)in the case of a determination that an environmental impact assessment is not required, any features of the relevant project or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.".

New regulation 17

16.  After regulation 16 insert-

"Review

17.-(1) In relation to England, the Secretary of State must, from time to time-

(a)carry out a review of the regulatory provision contained in these Regulations; and

(b)publish a report setting out the conclusions of the review.

(2) The first report must be published before 16th May 2022.

(3) Subsequent reports must be published at intervals not exceeding 5 years.

(4) Section 30(3) of the Small Business, Enterprise and Employment Act 2015(19) requires that a review carried out under this regulation must, so far as is reasonable, have regard to how the EIA Directive is implemented in other member States.

(5) Section 30(4) of the Small Business, Enterprise and Employment Act 2015 requires that a report published under this regulation must, in particular-

(a)set out the objectives intended to be achieved by the regulatory provision referred to in paragraph (1)(a);

(b)assess the extent to which those objectives are achieved;

(c)assess whether those objectives remain appropriate; and

(d)if those objectives remain appropriate, assess the extent to which they could be achieved in another way which involves less onerous regulatory provision.

(6) In this regulation, "regulatory provision" has the same meaning as in sections 28 to 32 of the Small Business, Enterprise and Employment Act 2015 (see section 32 of that Act).".

Amendment to Schedule 1

17.  For Schedule 1(20) (selection criteria for relevant projects) substitute the Schedule at Schedule 1.

Amendment to Schedule 2

18.  For Schedule 2 (information about proposed project) substitute the Schedule at Schedule 2.

Transitional provisions

19.  These Regulations do not apply in respect of-

(a)a determination of whether a project is a relevant project under regulation 4 of the 2003 Regulations, where the applicant concerned requested the determination under regulation 4(1) of the 2003 Regulations before 16th May 2017;

(b)a proposed relevant project, where the applicant concerned requested an opinion about the scope and level of detail of information to be included in an environmental statement under regulation 6(2) of the 2003 Regulations in respect of the relevant project before 16th May 2017; and

(c)a proposed relevant project, where the applicant concerned provided an environmental statement under regulation 5 of the 2003 Regulations in respect of the relevant project before 16th May 2017.

Regulation 17

SCHEDULE 1

Regulations 4, 14 and 16

"SCHEDULE 1Selection criteria for relevant projects

Characteristics of projects

1.  The characteristics of relevant projects, with particular regard to-

(a)the size and design of the whole project;

(b)cumulation with other existing or approved projects;

(c)the use of natural resources, in particular land, soil, water and biodiversity;

(d)the production of waste;

(e)pollution and nuisances;

(f)the risk of major accidents or disasters which are relevant to the project, including those caused by climate change, in accordance with scientific knowledge;

(g)the risks to human health (for example due to water contamination or air pollution).

Location of projects

2.  The environmental sensitivity of geographical areas likely to be affected by relevant projects, with particular regard to-

(a)the existing and approved land use;

(b)the relative abundance, availability, quality and regenerative capacity of natural resources (including soil, land, water and biodiversity) in the area and its underground;

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

(i)wetlands, riparian areas, river mouths;

(ii)coastal zones and the marine environment;

(iii)mountain and forest areas;

(iv)nature reserves and parks;

(v)areas classified or protected under national legislation and Natura 2000 areas designated by member States pursuant to the Habitats Directive and the Wild Birds Directive;

(vi)areas in which there has already been a failure to meet the environmental quality standards, laid down in EU legislation and relevant to the project, or in which it is considered that there is such a failure;

(vii)densely populated areas;

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

Type and characteristics of the potential impact

3.  The likely significant effects of relevant projects on the environment in relation to criteria set out in paragraphs 1 and 2 of this Schedule, with regard to the impact of the project on the factors specified in regulation 7A(2), taking into account-

(a)the magnitude and spatial extent of the impact (for example geographical area and size of the population likely to be affected);

(b)the nature of the impact;

(c)the transboundary nature of the impact;

(d)the intensity and complexity of the impact;

(e)the probability of the impact;

(f)the expected onset, duration, frequency and reversibility of the impact;

(g)the cumulation of the impact with the impact of other existing or approved projects;

(h)the possibility of effectively reducing the impact."

Regulation 18

SCHEDULE 2

Regulation 6(1)

"SCHEDULE 2Information about proposed projects

1.  A description of the relevant project, including in particular-

(a)a description of the location of the relevant project;

(b)a description of the physical characteristics of the whole relevant project, including, where relevant, requisite demolition works, and the land-use requirements during the construction and operational phases;

(c)a description of the main characteristics of the operational phase of the relevant project (in particular any production process), for instance, energy demand and energy used, nature and quantity of the materials and natural resources (including water, land, soil and biodiversity) used;

(d)an estimate, by type and quantity, of expected residues and emissions (such as water, air, soil and subsoil pollution, noise, vibration, light, heat, radiation) and quantities and types of waste produced during the construction and operation phases.

2.  A description of the reasonable alternatives (for example in terms of project design, technology, location, size and scale) studied by the applicant, which are relevant to the proposed relevant project and its specific characteristics, and an indication of the main reasons for selecting the chosen option, including a comparison of the environmental effects.

3.  A description of the relevant aspects of the current state of the environment (baseline scenario) and an outline of the likely evolution thereof without implementation of the relevant project as far as natural changes from the baseline scenario can be assessed with reasonable effort on the basis of the availability of environmental information and scientific knowledge.

4.  A description of the factors specified in regulation 7A(2) likely to be significantly affected by the relevant project: population, human health, biodiversity (for example fauna and flora), land (for example land take), soil (for example organic matter, erosion, compaction, sealing), water (for example hydromorphological changes, quantity and quality), air, climate (for example greenhouse gas emissions, impacts relevant to adaptation), material assets, cultural heritage, including architectural and archaeological aspects, and landscape.

5.  A description of the likely significant effects of the relevant project on the environment resulting from, among other things-

(a)the construction and existence of the relevant project, including, where relevant, demolition works;

(b)the use of natural resources, in particular land, soil, water and biodiversity, considering as far as possible the sustainable availability of these resources;

(c)the emission of pollutants, noise, vibration, light, heat and radiation, the creation of nuisances, and the disposal and recovery of waste;

(d)the risks to human health, cultural heritage or the environment (for example due to accidents or disasters);

(e)the cumulation of effects with other existing or approved projects, taking into account any existing environmental problems relating to areas of particular environmental importance likely to be affected or the use of natural resources;

(f)the impact of the relevant project on climate (for example the nature and magnitude of greenhouse gas emissions) and the vulnerability of the relevant project to climate change;

(g)the technologies and the substances used.

6.  The description referred to in paragraph 4 of the likely significant effects on the factors specified in regulation 7A(2) must cover the direct effects and any indirect, secondary, cumulative, transboundary, short-term, medium-term and long-term, permanent and temporary, positive and negative effects of the relevant project. That description must take into account the environmental protection objectives established at EU or member State level which are relevant to the relevant project.

7.  A description of the forecasting methods or evidence, used to identify and assess the significant effects on the environment, including details of difficulties (for example technical deficiencies or lack of knowledge) encountered in compiling the required information and the main uncertainties involved.

8.  A description of the measures envisaged to avoid, prevent, reduce or offset any identified significant adverse effects on the environment and, where appropriate, of any proposed monitoring arrangements (for example the preparation of a post-project analysis). That description must explain the extent, to which significant adverse effects on the environment are avoided, prevented, reduced or offset, and must cover both the construction and operational phases.

9.  A description of the expected significant adverse effects of the relevant project on the environment deriving from the vulnerability of the relevant project to risks of major accidents or disasters which are relevant to the relevant project. Relevant information available and obtained through risk assessments pursuant to EU legislation such as Directive 2012/18/EU of the European Parliament and of the Council on the control of major-accident hazards involving dangerous substances, amending and subsequently repealing Council Directive 96/82/EC(21) or Council Directive 2009/71/Euratom establishing a Community framework for the nuclear safety of nuclear installations(22) or UK environmental assessments may be used for this purpose provided that the requirements of the EIA Directive are met. Where appropriate, the description must include measures envisaged to prevent or mitigate the significant adverse effects of such events on the environment and details of the preparedness for and proposed response to such emergencies.

10.  A non-technical summary of the information provided under paragraphs 1 to 9.

11.  A reference list detailing the sources used for the descriptions and assessments included in the statement."

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations implement Directive 2014/52/EU ("Directive 2014/52") of the European Parliament and of the Council amending Directive 2011/92/EU ("Directive 2011/92") on the assessment of the effects of certain public and private projects on the environment in respect of water management projects for agriculture, including irrigation projects, in England and Wales.

Regulations 3 to 18 contain amendments to the Water Resources (Environmental Impact Assessment) (England and Wales) Regulations 2003 (S.I. 2003/164) ("the 2003 Regulations"). In summary:

(a)new regulations 3A and 3B (as inserted by regulation 5) make provision for a determination that the 2003 Regulations do not apply to specific projects;

(b)new regulation 3C (as inserted by regulation 5) makes provision for the coordination of environmental assessments;

(c)the amendments to regulation 6 (in regulation 8) makes provision with respect to the preparation of an environmental statement;

(d)new regulation 7A (as inserted by regulation 10) makes provision requiring the appropriate authority to consider an environmental statement and reach a conclusion about the likely significant effects on the environment of a relevant project;

(e)the amendments to regulation 8 (in regulation 11) relate to the appropriate authority's determination of an application for, or for the variation of, an authorisation relating to a relevant project, for example setting out matters to be included in the appropriate authority's consideration of that application;

(f)new Schedules 1 and 2 (as substituted by regulations 17 and 18 respectively) reflect amendments made by Directive 2014/52 to Annexes III and IV of Directive 2011/92 respectively.

An impact assessment has not been produced for this instrument as minimal impact on the private or voluntary sectors is foreseen. An Explanatory Memorandum and a transposition note are available with these Regulations on www.legislation.gov.uk. Copies have also been placed in the Libraries of both Houses of Parliament.