Date: 30th April 2012
Sent via email to:
Dear Sir,
CONSULTATION- THE WATER ACT 2003: WITHDRAWAL OF COMPENSATION ON THE GROUNDS OF SERIOUS DAMAGE
Thank you for informing the Minerals Products Association (MPA, formed from the merger of the Quarry Products Association, the British Concrete Association and The Concrete Centre) of your recent consultation on the Water Act 2003 and in particular the withdrawal of compensation on the grounds of serious damage.
The Mineral Products Association (MPA) is the trade association for the aggregates, asphalt, cement, concrete, lime, mortar and silica sand industries. With the recent addition of The British Precast Concrete Federation (BPCF), it has agrowing membership of 430 companies and is the sectoral voice for mineral products. MPA membership is made up of the vast majority of independent SME companies throughout the UK, as well as the 9 major international and global companies. It covers 100% of GB cement production, 90% of aggregates production and 95% of asphalt and ready-mixed concrete production and 70% of precast concrete production. Each year the industry supplies in excess of £5 billion of materials to the £110 billion construction and other sectors. Industry production represents the largest materials flow in the UK economy and is also one of the largest manufacturing sectors. For more information visit: www.mineralproducts.org
Introduction
MPA recognises that the sustainable use of water is essential to preserve water resources for present and future generations. Equally, aggregate extraction is essential to the economy and our way of life. The management of water is a critical element of quarry development, which can only take place where minerals lie.
For our members water abstraction is an essential part of their operations, without which many quarries would cease to operate, thereby jeopardising the steady and adequate supply of minerals as set out in the recent National Planning Policy.
Use of Water in Mineral Operations
The abstraction and use of water is an integral and essential part of almost all quarrying operations.
Many quarries access permitted minerals which are below the permanent groundwater table. In such cases, quarries will remove water by dewatering and transfer it back into the ground or to a surface water feature. Changes brought about by the Water Act 2003 will bring these dewatering activities into the abstraction licensing regime for the first time in October 2012.
Dewatering of quarries involves transferring potentially large volumes of water over relatively long periods of time (up to and over 50 years). The potential impacts on the environment resulting from dewatering of quarries are controlled by imposing strict planning conditions and strategic plans, such as surface or groundwater management plans.
Many quarries are highly dependant on abstraction to supply water for washing mineral, and satisfying other requirements of planning (e.g. dust suppression, wheel washing). Whilst pumped volumes for mineral washing are relatively high depending on the quarry output and quality of the mineral deposit, the actual consumption is low with water being treated and recycled back into the process often via settlement lagoons or filter presses.
Main Concerns
· Quarries are still exempt from requiring licenses for dewatering their sites and the integral use of water within their operations. There is concern that these water transfers and abstractions have not been scrutinised under the Restoring Sustainable Abstraction (RSA) scheme as other, licensed, abstractions and transfers have.
· There is already a mechanism through the planning process to identify potential harm to the environment caused by mineral workings. Through the statutory consultation process, the EA are already represented and able to provide their opinion on the potential for the planned workings to cause serious damage to the environment. There is therefore a risk that the proposals in this consultation will conflict with or duplicate regulation under the planning regime.
· This consultation reactivates the fundamental concerns over the proposed operation of the abstraction licensing regime. The water environment is taken into account when planning permission is granted for mineral extraction through the EIA process and to which the EA is a formal consultee. Long term investment decisions have been made on the basis of planning permissions granted subject to the right to dewater. Not only is this right being taken away but the new licensing regime will be implemented to a different timescale to that of the planning permission and operate against single issue criteria. This is not in accordance with the principles of sustainable development set out in the new NPPF. Unless the criteria for revocation or modification are tied in to the planning review process and a process of Environmental Assessment there will be a significant deterrent to major investment in strategically important quarries. The planning process will be undermined and there will be a threat to the maintenance of an adequate and steady supply of minerals as envisaged by the NPPF. This concern must be addressed by Defra as a priority, given the planned introduction of the abstraction licensing regime for quarries this October.
· The consultation does not provide enough information as to how the EA will prove, beyond reasonable doubt, that it is the abstractor causing serious damage to the environment. Indeed, it is also not clear if the onus is on the EA to prove that there will be serious damage to the environment or on the abstractor that there will not be.
· It is not clear in the consultation if there is a weighting for each of the three principles for assessing serious damage or if they are addressed equally. For one scenario do all the principles have to indicate serious damage? The consultation indicates that there is a weighting due to the way in which the conclusions for the scenarios have been drawn. However, there is no further information on the weightings.
· Habitat change is inevitable, care should be taken that the change to an environment/ population is not a consequence of natural change or climate change. Evidence that this has been taken into account would be essential when proving that the abstractor is causing serious damage.
· Cause and effect in hydrogeology is always difficult to identify and effects at any particular location can almost never be attributed to a single activity.
· Unlike other industries, our operations have to be situated where there is an accessible mineral resource and this in turn is dependant on geology, amongst other factors. Operators may be unable to relocate to areas with a greater availability of water or further from sensitive environmental areas.
· Industry and regulators require clear, effective Technical Guidance before new regulations are introduced.
Questions
Q1 What additional criteria or alternative approaches could we use for Principle 1 to inform the assessment and demonstrate serious damage? Which, if any, of the criteria we have suggested do you disagree with and why?
Principle 1 should include an assessment of the causative link between the abstraction and the serious damage. Other factors that may have impacted the environment and potentially exacerbated the situation should also be considered.
There is no reference in Principal1 to the availability and extent of baseline data which are critical in the assessment of serious damage. An example of this situation is provided below for a quarry operator with an abstraction licence for the use of groundwater for mineral washing-
Adjacent to the quarry is a wetland habitat that is showing signs of stress, groundwater monitors show that there is some drawdown of the water table. If there is no pre-existing condition report on the habitat before abstraction started how can the regulator be certain it is the abstractor causing the stress to the wetland when stress may have occurred prior to abstraction but cannot be proved or disproved?
Q2 What additional criteria or alternative approaches could we use for Principle 2 to inform the assessment and demonstrate serious damage? Which, if any, of the criteria we have suggested do you disagree with and why?
No response.
Q3 What additional criteria or alternative approaches could we use for Principle 3 to inform the assessment and demonstrate serious damage? Which, if any, of the criteria we have suggested do you disagree with and why?
Temporary effects to habitats or species should not be recognised as serious damage as long as the habitat or species population is able to recover in an acceptable time. We consider that this should be set out in Principle 3. Table 3 defines a permanent loss of native species as serious damage but the contrary situation (i.e. a short-term loss of native species) is not considered in the table.
Q4 What additional criteria, or alternative approaches could we use to inform the assessment of a risk of future serious damage than the same three principles we propose to apply to existing serious damage?
As explained in question 1, we consider that Government should include what the probability of a serious damage scenario developing has to be before it is considered sufficient to revoke, vary or refuse a license.
Q5 If serious damage arises because of multiple abstractions, how should section 27 be applied to individual licences? What other approaches should be used than the proportional approach described?
Further information is required to understand how other extraneous factors (such as pollution or drought) will be separated from the abstractions in the area and their impact determined.
For example, if a river was being polluted by a point source, but the affect of the pollution was compounded by an upstream abstraction reducing river flows; it would be quicker and cheaper to remove the point source pollutant. We would consider it grossly unfair to penalise the abstractor for a problem not of their making.
Q6 Do you agree with the conclusions from these examples? How can we make the decision process clearer and more transparent?
Example A
We agree that the scenario constitutes serious damage as set out in the three guiding principles. However, we do not believe that other factors such as drought or pollution have been considered fully and their potential contributing impact on the situation properly discounted in the example. For instance, how long has the golf course been abstracting? If it was less than 10 years it could be argued that serious damage is not solely resulting from abstraction as this is when it was first recorded that the dunes were drying up.
We would also want to see that the regulator can prove beyond reasonable doubt that it is the abstractor causing the serious damage to the environment.
Example B
The potential loss of spawning ground needs to be quantified in Principle 1 to assess whether the potential damage to the population of salmon is serious, or not. Without this, the example implies that unquantified damage is “serious” simply on the basis that salmon are a European protected species, even if it was just a few individuals.
Example D
We would appreciate further case studies and examples of dewatering and the potential to cause serious damage, or not.
We again state that the example dismisses other potential factors that could cause or impact on the SSSI. We believe that these require further exploration and explanation before coming to the conclusion that it is the fault of the abstractor. For example, we would require further information on-
· Whether the SSSI records show changes in habitat/groundwater levels stretching back longer than 10 years? This relates to the need for baseline data, as referred to above.
· Whether there are other abstractions in the area including fenland draining which may be contributing to a general lowering of groundwater levels across the local area? This relates to the need to establish a causative link with abstractions and to include an assessment of other potential causes of serious damage, as referred to above.
· Whether there is a demonstrable hydraulic connection between the quarry and the SSSI, as 3km is a significant distance from the SSSI.
· Whether the quarry is located up or down hydraulic gradient of the SSSI.
This scenario illustrates our concern, stated above, that there is a risk that the proposals in this consultation will conflict with or duplicate regulation under the planning regime. It also demonstrates our point that there should be an assessment of whether there is a causative link between the abstraction and the serious damage.
Principle Tests- General Comments
· The consultation document and test principles read that the outcome of one principle could deem whether an abstractor was causing serious damage or not. For example, the column titles in table 2 should be amended to include the word “indicate” not just “serious damage” and “damage- but not serious”. It is essential that the conclusions from all three principles are considered before a judgement is made. The approach taken in tables 1-3 directly contradicts paragraph 4.2 which requires that the weight of evidence across all three principles should be appraised before concluding serious damage. Indeed, paragraph 4.6 states that Principle 1 alone may be sufficient to determine damage as being serious.
· We would suggest that Tables 1-3 be renamed as “examples to demonstrate how damage may be assessed to identify whether it is potentially serious damage...” for Principle 1,2 or 3 respectively, and that the second column be renamed as “Potentially Serious Damage”.
· It is not clear if there is a weighting associated with each of the principles or if they are equal in determination of serious damage.
Other Comments
· Paragraph 3.17 states that the principles for assessing whether an abstraction is causing serious harm will be applied to section 27 cases and the Transitional Regulations. Paragraphs 3.21 and 4.1 no longer include reference to the Transitional Regulations, nor do paragraphs 4.14 to 4.21 make any mention of licences being refused under the Transitional Regulations if it is assessed that granting the licence could cause serious harm. It would be helpful, for the purposes of clarity, to see how Defra are proposing to manage the right to compensation where the granting of a licence for an existing dewatering operation applied for under the Transitional Regulations, would be assessed as causing serious damage.