The Environmental Permitting (England and Wales) (Amendment) (No. 2) Regulations 2016

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations amend the Environmental Permitting (England and Wales) Regulations 2010 (S.I. 2010/675) (“the EPRs”) in order to extend the requirement for an environmental permit to flood risk activities.

Regulation 3 amends the EPRs so as to provide for relevant definitions. In particular the term “flood risk activity” is defined by reference to a new Schedule 23ZA to the EPRs (inserted by Schedule 2 to these Regulations).

Regulation 4 amends regulation 5 of the EPRs (exempt facilities) to provide for exempt flood risk activities. Regulations 5 to 7 amend definitions in the EPRs in order to bring flood risk activities within the class of operations that require an environmental permit.

Regulation 8 substitutes a new regulation 15 in the EPRs in connection with provision for permit applications to be granted subject to conditions relating to ongoing maintenance or access requirements by the regulator. Regulations 9 and 10 extend to flood risk activities current flexibilities in the EPRs concerning the grant by the regulator of a permit covering various activities by a single operator.

Regulations 11 to 13 extend the current provisions in the EPRs on variation, transfer and surrender of environmental permits so that they provide for flood risk activities. Regulation 14 make provision for appeals in relation to permits authorising flood risk activities. Regulation 15 adds flood risk activities to the list of specific provisions applying to environmental permits, set out in regulation 35 of the EPRs.

Regulations 16 to 20 extend the current provisions in the EPRs on enforcement and offences relating to permits so that they provide for flood risk activities. Regulation 21 gives the regulator power to arrange for steps to be taken to remove a risk of serious flooding, detrimental impact on drainage or harm to the environment, corresponding to the current power under the EPRs for the regulator to prevent or remedy pollution.

Regulation 22 requires the Environment Agency and the Natural Resources Body for Wales to consult each other before exercising a function relating to a flood risk activity which may affect a flood or coastal erosion risk in Wales or England respectively. It also requires the appropriate authority to have regard to the interests of fisheries, including sea fisheries, when exercising a power under the EPRs that relates to a flood risk activity.

Regulations 23 and 24 amend Schedules 2 and 3 respectively to make provision in respect of exempt facilities for flood risk activities. Regulation 25 amends Schedule 5 to the EPRs in order to make provision in respect of the grant, variation and surrender of environmental permits that include flood risk activities (including provision as to fees for the grant of such permits). Regulation 26 adds provision in respect of flood risk activity enforcement notices to Schedule 6 to the EPRs (appeals to the appropriate authority). Regulation 28 amends Schedule 23A to the EPRs in order to exclude the option of accepting an enforcement undertaking in relation to flood risk activities. Regulation 30 repeals certain provisions of the Water Resources Act 1991(1).

Regulations 31 to 34 make transitional and saving provision in respect of existing flood defence consents, outstanding applications for flood defence consents, existing notices and arbitration matters.

Schedule 1 to these Regulations adds a new Part 4 to Schedule 3 to the EPRs (descriptions and conditions for exempt flood risk activities). Schedule 2 makes specific provision for flood risk activities included in environmental permits. This includes definitions, enforcement notices and excluded flood risk activities. Schedule 3 makes consequential amendments to primary and subordinate legislation.

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 Flood Risk Management Team, the Department for Environment, Food and Rural Affairs, Area 3C, Nobel House, 17 Smith Square, London SW1P 3JR and from the Flood and Coastal Erosion Risk Management Team, the Welsh Government, Cathays Park, Cardiff, CF10 3NQ, and is published alongside the Explanatory Memorandum for this instrument at www.legislation.gov.uk.

(1)

1991 c.57.