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Groundwater (England and Wales) Regulations 2009

My Lords, I welcome the opportunity to introduce these regulations. The water framework directive of 2000 envisaged a new groundwater directive to clarify the WFD’s objectives for groundwater, and a new directive was agreed in 2006 to replace the 1980 groundwater directive. In the discussions on that directive, the UK aimed for simple, transparent measures to protect groundwater from pollution; locally determined risk-based standards and targeted monitoring; and to avoid measures that would be disproportionately costly compared with the environmental benefits achieved. I am pleased to report that potentially ineffective and costly EU-wide standards were, on the whole, avoided. The impact assessment indicated a cost-neutral outcome in relation to action already required under the directive. I hope that that is of some reassurance to the Committee about the nature and impact of these regulations. The 2006 directive adopts existing EU values for controls over nitrates and pesticides, and provides for member states to determine national groundwater standards, the way in which these should be used to assess groundwater body status, and the identification and reversal of pollution trends. These elements are being transposed separately as part of WFD implementation. The regulations before us today transpose Article 6 of the directive, which makes operational the WFD objective to prevent or limit the input of pollutants to groundwater, and distinguishes the substances whose input into groundwater is to be prevented from those to be limited. Sensible exemptions facilitate a practicable approach. Currently, there are groundwater protection measures transposing the 1980 directive in the Water Resources Act 1991 and the 1998 groundwater regulations. The new regulations introduce no fundamental changes to groundwater protection. Nevertheless, it is necessary to amend the 1998 regulations to transpose Article 6 while respecting the provisions of the 1980 directive, which remains in force until December 2013. Consultation on transposition was completed last summer. Responses indicated broad agreement with the proposed approach. The details of the regulations are as follows. Regulation 1 deals with coming into force and regulation 2 updates definitions. In particular, a registration or disposal under the Radioactive Substances Act 1993 will become a permit for groundwater purposes. The terms "hazardous" substances and "non-hazardous" pollutants effectively replace the list 1 and list 2 dangerous substances to be controlled. Regulation 3 explains the meaning of "hazardous substances"—essentially those that are persistent, bioaccumulative and toxic, and of which the existing prescriptive list 1 comprises a large subset. Member states must identify hazardous substances, and that will be the responsibility of the Environment Agency in England and Wales. Regulation 4 provides that "non-hazardous" pollutants cover all other pollutants. These new terms potentially embrace a wider range of pollutants, but in practice the agency will identify additional substances where they are problematic. Regulations 5 and 6 reflect the welcome fact that the 2006 directive provides for sensible exceptions, such as unavoidable accidents; exemptions from the need for a permit, such as very small inputs that would not affect groundwater quality; and inputs that cannot be prevented without risk to human health or which, for contaminated ground, would involve disproportionate cost. Under the 2006 directive, disposals of radioactive substances and discharges from septic tanks are no longer exempt and so will now be subject to permitting under these regulations. The controls relating to both radioactive substances and discharges from septic tanks are expected to enter the environmental permitting regulations in 2010. In relation to discharges from septic tanks, the current exemption will be carried over in relation to discharges that amount to less than two cubic metres per day, but from 1 January 2012 it will be necessary to register with the environmental agencies such discharges, subject to basic rules of operation and maintenance. Article 6 of the 2006 directive requires us to prevent the input into groundwater of hazardous substances and to limit the input into groundwater of non-hazardous substances to avoid pollution. Regulations 7, 8 and 9 put this into practice and Defra guidance will clarify what is meant by the requirement at regulation 8 to prevent the input of hazardous substances. This is an important objective but will not always be achievable. European Commission guidance explains that, in this context, prevention means taking all necessary and reasonable measures, where "reasonable" means technically feasible and without involving disproportionate cost. In other words, we must do whatever we can while recognising the inevitable limitations that apply to the concept of "absolute prevention". Regulation 10 sets out the circumstances where the agency may permit inputs of pollutants, given a range of practical considerations. These are valuable exemptions, offering greater flexibility than hitherto. Regulation 11 requires investigations and the technical precautions to ensure that the grant of a permit is made only in accordance with the requirements. Under regulation 12, future reviews of permits will be carried out as necessary rather than on the current statutory four-yearly basis, and should therefore save resources. In practice, such reviews will normally follow the water framework directive’s six-year review cycle for the publication of river basin management plans. Regulation 13 carries over the offence of "causing or knowingly permitting" an unauthorised discharge, established in the 1991 Water Resources Act and the groundwater regulations 1998. As before, exceptions are made for highway drains—there are too many to permit individually—and for discharges of less than two cubic metres a day from septic tanks. In both cases, the agency may serve a prohibition notice where problems arise. Regulation 14 carries over relevant defences. Regulations 15 and 16 provide for transfer and administration permits, including conditions, reasons for refusal and for appeals against refusal, variation or revocation of permits. Regulation 17 enables the agency to serve a notice requiring information, and regulation 18, similar to current powers, to prohibit an activity which might lead to the input of a pollutant to groundwater, with a right of appeal contained in regulation 19. Regulation 20 carries over the provision in the 1998 groundwater regulations for Ministers to approve codes of good practice giving guidance on compliance with the regulations to be taken into account by the agency when serving a prohibition notice. Regulation 21 requires the agency to record details of permits on a public register. Regulations 22 to 24 update the standard penalties for offences and regulation 25 revokes the 1998 groundwater regulations. We intend to consult on draft guidance to the Environment Agency once the regulations are made. The regulations will be short-lived, in that they will be absorbed into the environmental permitting regulations in 2010. However, the transposition date for the 2006 directive means that these regulations are needed to bridge the gap. In conclusion, I commend the groundwater regulations as a good example of successful EU negotiations contributing to good operational management, reflecting my department’s approach to better regulation. I beg to move.