Statutory Instrument 2003 No. 164

The Water Resources (Environmental Impact Assessment) (England and Wales) Regulations 2003

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"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 - 

(a) in relation to a project in Wales where the Secretary of State has not exercised her functions under paragraph 6 of Schedule 3 to the Government of Wales Act 1998[6], the National Assembly for Wales;

(b) in any other case, the Secretary of State;

"authorisation" means - 

(i) an abstraction or impounding licence, or

(ii) a consent under Part III of these Regulations;

"consultation bodies" means - 

(a) the local planning authority within the meaning of Part I of the Town and Country Planning Act 1990[7] within whose area the project is to be carried out;

(b) in relation to a project to be carried out in England, the Countryside Agency, English Nature and English Heritage; and

(c) in relation to a project to be carried out in Wales, the Countryside Council for Wales and the National Assembly for Wales in its exercise of functions in the field of ancient monuments and historic buildings[8];

"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].

    (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.

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.

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.

(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.

     3. Characteristics of the potential impact
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.

     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.

[2] S.I. 1988/785.back

[3] OJ L175, 5.7.1985, p.40.back

[4] OJ L73, 14.3.1997, p.5.back

[5] 1991 c.57.back

[6] 1998 c.38.back

[7] 1990 c.8.back

[8] See the Government of Wales Act 1998, Schedule 2, paragraph 2.back

[9] S.I. 1999/1783.back

[10] S.I. 1992/3240, amended by S.I. 1998/1447.back

[11] 1972 c.70; section 250(4) was amended by Part II of Schedule 12 to the Housing and Planning Act 1986 (c.63).back

[12] O.J. No. L103, 25.4.1979, p.l. Directive as last amended by the 1994 Act of Accession.back

[13] O.J. No. L206, 22.7.1992, p.7.back

[14] This description should cover the direct effects and any indirect, secondary, cumulative, short, medium and long-term, permanent and temporary, positive and negative effects of the project.back