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Groundwater (England and Wales) Regulations 2009

My Lords, I am grateful to noble Lords for their contributions, and even more grateful for the small intermission, which enabled me to get some grip on the volley of questions. I am especially grateful to the noble Lord, Lord Taylor, who gave me notice of his questions. He apologised for the interrogative nature of his speech. No apology is necessary; these are real issues that we need to identify. My only apology is because he asked me such a volley of questions that I may be slightly protracted in my reply. I am also grateful to the noble Lord, Lord Greaves, who said that he would listen intently to the responses I made to the noble Lord, Lord Taylor, and who otherwise would have asked those questions if they had not already been put. If I take a little time over these issues, particularly as they relate to septic tanks, which has been the main burden of this discussion, I shall satisfy all noble Lords. I will also comment on the particular points raised by the noble Baroness, Lady Byford, in her contribution. I start by giving the good news first because it cheers me and I hope that it will do the same for the Committee. I was asked by the noble Lord, Lord Taylor, how we compare with other European countries in how we tackle this issue. We think that we get off reasonably lightly. Many other EU countries are going to require full permits, probably at the municipal level because of the nature of their government—that is certainly likely to be the case in Germany—while others have clear registration and notification schemes that will require compliance. I hope that my answers will make it clear that we have a somewhat lighter touch than the full permit regime requires. That is the context in which I want to begin my response to the questions. Obviously, the issue of septic tanks is very significant. Small discharges from isolated domestic dwellings not connected to the sewerage system were previously exempted from the requirement for authorisation. That will not be the case in the longer term and the intention is that, under the EPRs, discharges from septic tanks of two cubic metres or less should be subject to registration with the Environment Agency as exempt groundwater activities. Registration will be dependent on compliance with basic rules of operation and maintenance and will be free, as the consequence of a previous ministerial decision. Meanwhile, until 1 January 2012, small discharges—those of under two cubic metres per day—will continue to be exempt unless they are the cause of an environmental problem in that they might pollute a drinking water supply. In those cases the Environment Agency may serve a notice either to prohibit the activity or to require that a permit should be applied for. The arrangement will also apply in the case of registered exemptions under the EPRs. As is the case at present, all school discharges within a defined area around a drinking water supply will require a full permit, subject to an application charge but not subsistence charges. That is the background, but the noble Lord, Lord Taylor, has addressed to me a series of specific questions to which I want to reply so as to flesh out the issues which have been raised. If my responses do not do that, I will take note and be only too prepared to write subsequent to our proceedings to noble Lords who have contributed to the debate. I was asked why the exemption limit has been set at two cubic metres per day. This is the Environment Agency’s practical interpretation of the original exemption in the 1980 directive. It is a practical limit sufficient for the daily needs of a household of up to 10 persons. With regard to the 2006 directive, the position is that the 1980 groundwater directive and regulations of the same year exempt such discharges. The exemption is not sustained in either the water framework directive or the 2006 groundwater directive. The issue was explored at length in the European Parliament and an automatic exemption cannot be included in the new regulations except for a period lasting until January 2012, which recognises that the 1980 directive remains in force until we get to 2013. How many dwellings have septic tanks and how many other types of domestic sewage treatment are not connected to the mains sewerage? We estimate that there are approximately 300,000 septic tanks not connected to the mains sewerage system. Because septic tanks are not routinely controlled, it is impossible to know their location and precise number. That will be remedied once groundwater controls fall under the environmental permitting system and septic tanks are subject to a registration scheme. The regulations will apply to any installation from which there is a discharge, but not sealed cesspits. The EA has about 20,000 discharge permits, input permits and groundwater extraction authorisations. How many permits do we estimate will be sought by the owners of domestic sewage systems? Probably several thousand will require a specific permit, because they are close to drinking water supplies, which is our obvious major concern. That requirement is no different from the current situation. Until 1 January 2012, other septic tanks will require no permit. Thereafter, under the proposed EPRs, all such discharges will be subject to a registration scheme and therefore subject to basic rules of sound operation and good maintenance. It is germane to our discussion this afternoon that I replied to a Written Question from the noble Lord, Lord Taylor. He asked, ""how many permits covered by the draft Groundwater (England and Wales) Regulations 2009 are outstanding in each region in England and Wales"." The Answer was as follows: ""The following classes of permits are subject to the existing (1998) Groundwater Regulations and will become valid permits for the purposes of the Groundwater Regulations 2009 when they come into force:""(1) Consents to discharge to groundwater under the Water Resources Act 1991.""(2) Permits under Environmental Permitting Regulations 2007 where these may result in inputs to groundwater.""(3) Groundwater authorisations under the Groundwater Regulations 1998.""There are upwards of 20,000 such permits in total. The number of new applications and variations to such permits will fluctuate daily as they are submitted and processed according to statutory procedures. There is currently no significant backlog of applications"." So we have an order of magnitude, but I cannot be absolutely precise in my response. ""To provide an analysis of each outstanding permit broken down by region would require detailed searches of Environment Agency permitting databases which would incur disproportionate cost". —[Official Report, 5/10/09; col. WA468.]" On what grounds will the EA be able to refuse to issue a permit? Site-specific assessment will determine the circumstances in which a permit may be refused. However, that will normally happen only where there is pollution or the threat of pollution to a drinking water supply. Will any domestic sewage installations currently in use be rendered unsuitable by the implementation of the regulations and, if so, how many septic tanks and sewage plants will have to be replaced? The regulations introduce no specific new standards applying to the design, installation and maintenance of septic tanks. However, in current circumstances, an existing septic tank would be unsuitable if it results in an unacceptable discharge. There is no change in that respect deriving from the regulations. Will a web-based registration scheme for discharges from isolated dwellings be a record of all discharges or a record of septic tank owners? I emphasise that under the regulations, the current exemption continues until 1 January 2012. The objective is to know the location of septic tanks and which properties are served by them. That will facilitate the identification of problems and encourage good practice. I will come to the point about communication raised by the noble Baroness in more detail in a moment. How does the Environment Agency discover that someone is discharging less than two cubic metres of effluent daily, and how does it chase it to the source? We intend to adopt a sensitive and light-touch approach whenever we can. It is possible to identify areas which are not served by mains sewerage and new properties by the planning system. The number of people occupying a property, which gives an indication of the volume of discharge is, as I said, 10, so we have some idea of where the problem may occur. What is the current extent of groundwater pollution from domestic septic tanks that discharge less then 2 cubic centimetres a day can this be characterised by the type of location of concealed equipment? What is the level of resulting damage? The Environment Agency is aware of some locations where aggregations of septic tanks are believed to be responsible for pollution. Because of the absence of reliable data on the location of septic tanks, it is difficult to address these issues at present. The condition, operation and maintenance of equipment must determine its performance, as all noble Lords will recognise. Typically, diffuse pollution will result from some aggregation of septic tanks. Occasionally, an individual septic tank may threaten a drinking water supply—hence the requirement for a permit when that tank is close to such drinking water locations. What is the probable charge for a permit to use a septic tank? There will be no registration fee for the foreseeable future. There is an application fee for tanks which currently require a permit, which is a one-off charge of £124. This is reviewed annually after consultation, but there is no annual subsistence charge. The Environment Agency’s charging scheme for 2010-11, which is out to consultation, proposes a 1 per cent increase on the basic charge. What is the Environment Agency’s predicted cost of enforcing the legislation on daily discharges of less than 2 cubic centimetres from isolated dwellings? The cost of applications is fully covered by an application fee, in line with cost-recovery principles. Enforcement is carried out on a risk basis and costs to the Environment Agency are minimal. We can take some pleasure in that. The impact assessment sought information on which groundwater policy would be reviewed to establish actual costs and benefits. The Government propose to make this part of the regular river basin management process. Will Defra then collate these data to come up with an annual summary of costs and benefits? We are a little foxed by this question, which is challenging. The Environment Agency has proposed individual impact assessments for each river basin management plan. These were published on Monday. As I indicated in my opening remarks, the review will be in line with the six-yearly, not annual, cycle of the plans. How will the agency inform householders in isolated dwellings that they may require a permit and what will it need to make that decision? Since the exemption from the need for a permit lasts until January 2012, there is some time available to us to give this important issue full consideration. I recognise the anxieties to which the noble Baroness, Lady Byford, gave voice. The Environment Agency is considering how relevant requirement will be brought to the attention of septic tank users. Guidance on the requirements of these regulations, which will also apply to the EPRs, has been prepared and will be issued for consultation as soon as we have it ready. I accept entirely what the noble Baroness said, and noble Lord, Lord Taylor, indicated his concern about how we communicate effectively in these areas. I am all-too-well aware of the fact that government in all their forms need to do that. I answered a Question in the House only yesterday about the Inland Revenue and effective communication via the web. That is effective communication for a percentage of our citizens. It is less effective for some, due to their computer literacy, and for others because they do not have any access to the web. That was the point made by the noble Baroness and the noble Lord, Lord Taylor. We need to address that issue and we take it on board entirely. Will householders who pay to have septic tanks emptied need a permit? The answer is no. The regular emptying of a septic tank is a matter of good practice. Permits will be required in locations that are, for example, close to a drinking water supply. I return to the main concern that we all have about the purity of our water. All other tanks are exempt until January 2012 and thereafter will be subject to legislation under the proposed EPRs. Will these regulations heap more costs onto the community for very little benefit? That was the theme of the noble Lord’s anxieties. I can answer categorically no, in those terms. The impact assessment for the directive negotiations showed a broadly cost-neutral outcome in relation to resources already committed to the implementation of the water framework directive; that is our judgment, as I said in my opening remarks. The position on transposition is similar, although there is an element of swings and roundabouts in that some operators will benefit while others might incur modest additional costs. For example, permit holders under the existing regime may incur some additional costs for higher risk activities, but for those of a lower risk, the costs may in fact be reduced. This is in line with the "polluter pays" principle, to which we all subscribe and which is inherently fair. I was asked whether charges to farmers will rise as a result of these regulations. They will not do so directly as they make no provision for additional or higher charges. They carry over the existing arrangements set out in the 1980 groundwater regulations they replace, and the charges made by the EA are reviewed annually through established arrangements for the agency to recover its costs, a point I made earlier. That is the sole concern of the agency in levying its fees. However, the 2006 groundwater directive does not stipulate a review period for authorisation, and neither do the proposed regulations. This means that a review can be conducted on the basis of need rather than a rigid four-year cycle. Less frequent reviews where this is possible will mean lower charges, and therefore will be welcomed by the Committee. The noble Baroness asked me about the position of the landlord and the tenant. Normally, we would expect the liability to rest with the occupier and user, but there might be tenancy agreements written in different terms and, therefore, we cannot be categorical in the legislation. However, the expectation is that the occupier and user would be the liable person. I think that I have answered the questions put to me on the general aspects of communications, and I want to emphasise that in the department we are all too aware, as indeed is the Environment Agency, of the need for the effective communication of these important matters. The noble Lord, Lord Greaves, asked me about a review of the permits, which will apply only to existing permits. Not all septic tanks are affected, rather it is only those with permits because they are in sensitive locations. There will be no specific review period for revision; it will be done when it is required.