The Water Industry (Specified Infrastructure Projects) (English Undertakers) Regulations 2013

Explanatory Note

(This note is not part of the Regulations)

These Regulations implement Part 2A of the Water Industry Act 1991 (“the Act”) in relation to water and sewerage undertakers whose appointment areas are wholly or mainly in England.

Regulation 1(2) to (4) provides for provisions in these Regulations to cease to have effect seven years after they come into force in specified circumstances.

Regulation 3 gives effect to Schedule 1 which applies (with modification) provisions in, and made under, certain enactments for the purposes of these Regulations. Regulation 3 also applies (with modification) the general duty on the Secretary of State and the Water Services Regulation Authority (“Ofwat”) with respect to the water industry for the purposes of their functions exercised under or by virtue of these Regulations or, in certain cases, the Act.

Regulation 4 gives the Secretary of State and Ofwat powers to specify by notice in writing an infrastructure project in certain circumstances. Ofwat must publish guidance to be followed by it in determining whether to specify an infrastructure project. An infrastructure project is a project which an incumbent water or sewerage undertaker must ordinarily undertake to fulfil its statutory duties under section 37 (general duty to maintain water supply system etc.) or 94 (general duty to provide sewerage system) of the Act. Once specified, the incumbent undertaker is prohibited under regulation 5 from undertaking that infrastructure project, although the Secretary of State or Ofwat may permit or require it to undertake such preparatory work as they may set out by notice in writing. The Secretary of State and Ofwat may vary or revoke notices issued by them under regulations 4 or 5. The power to issues notices is subject to certain procedural requirements and transitional provisions.

Regulation 6 requires the incumbent water or sewerage undertaker to put a specified infrastructure project out to tender. The ordinary procurement rules may apply to such a tender. Where those rules do not apply or in certain other circumstances, these Regulations apply (with modifications) certain provisions of the Utilities Contracts Regulations 2006 (S.I. 2006/6) for that tender process. Those provisions are set out in Schedule 2 to these Regulations.

Regulation 7 limits companies associated with the water or sewerage undertaker from bidding in the tender process except where agreed by the Secretary of State or Ofwat by notice in writing. The Secretary of State and Ofwat may vary or revoke any notice issued by them under regulation 7. The power to issues notices is subject to certain procedural requirements and transitional provisions.

Regulation 8 gives the Secretary of State and Ofwat power to designate by notice in writing a person wholly or partly responsible for a specified infrastructure project which has been put out to tender in accordance with these Regulations. The “infrastructure provider” may then be licensed and regulated as set out in Schedule 1. The Secretary of State and Ofwat may vary or revoke any notice issued by them under regulation 8. The power to issues notices is subject to certain procedural requirements and transitional provisions.

Regulation 9 requires water and sewerage undertakers and infrastructure providers to provide the Secretary of State with such information as may be reasonably required for the purposes of carrying out their functions under these Regulations.

Regulation 10 provides for civil enforcement of these Regulations under the Act.

Regulation 11 requires the Secretary of State to review the operation and effect of these Regulations and publish a report within five years after the Regulations come into force. Following the review it will fall to the Secretary of State to consider whether the Regulations should be allowed to expire as regulation 1(2) and (3) provides, be revoked early, or continue in force with or without amendment. A further instrument would be needed to continue the Regulations in force with or without amendments or to revoke them early.

A full impact assessment of the effect that this instrument will have on the costs of business, the voluntary sector and the public sector is available from the Thames Tideway Tunnel Team, Area 2C, Department for Environment, Food and Rural Affairs, Ergon House, c/o Nobel House, 17 Smith Square, London SW1P 3JR. It is published on www.legislation.gov.uk alongside the Explanatory Memorandum and this instrument.