Skip to main content

Environmental Permitting (England and Wales) (Amendment) (England) Regulations 2023

Volume 830: debated on Monday 22 May 2023

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Environmental Permitting (England and Wales) (Amendment) (England) Regulations 2023.

Relevant document: 36th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

My Lords, the purpose of this instrument is to make nine minor amendments to the environmental permitting regulations 2016 as applied to groundwater activities. Groundwater is a critical national resource; it provides a clean and reliable source of drinking water, plays a vital role across many industry sectors, and supports ecosystems. The Government are committed to ensuring that the quality of our groundwater resources is protected.

In the face of growing pressures from climate change and population growth, it is important to optimise the regulatory tools available for managing and protecting groundwater quality. The environmental permitting regulations 2016 are an effective tool for managing groundwater activities. However, several limitations with the way the regulations implement groundwater protections have been identified, which has led to inconsistencies in approach within the wider environmental permitting regulations regime. These limitations can be resolved by the nine amendments, which will support many industries by reducing regulatory burden and costs, facilitating green energy production from geothermal and ground source heat, promoting growth and accelerating permit delivery. These amendments also create the right regulatory conditions to promote and allow innovation within the circular economy, allowing the appropriate and safe reuse of materials where it is environmentally acceptable. I now turn to the detail of these amendments.

Currently, groundwater activities can be permitted only through the use of bespoke environmental permits, which are the highest level of permits. This results in higher than necessary costs and an unnecessary level of regulatory burden to businesses. This instrument will give the regulators the ability to grant other types of permits, such as standard rules permits and mobile plant permits. Those non-bespoke permits are significantly less costly and reduce the administrative burden on businesses while maintaining environmental standards.

The instrument will also introduce exemptions from the requirement of an environmental permit for new cemeteries that pose a low risk of pollution to the groundwater environment. The public consultation received 264 responses and almost all the proposals received majority support. Following feedback on the cemeteries proposal and further discussion with key stakeholders, adjustments have been made to the cemetery-specific amendments to enable greater clarity and ease implementation issues.

Another aspect of this SI is that controls will be applied to prevent groundwater pollution from currently uncontrolled pollutants such as heat and micro-organisms. As heat will be added as a pollutant, the majority of closed-loop ground heat pump activities will be exempt from the requirement of an environmental permit. The instrument will also help to fix a loophole in the general binding rules for small sewage discharges, which are currently being exploited, resulting in harm to nearby environmental habitats and local water quality. These new rules will reduce the risk of groundwater pollution.

The current wording of the environmental permitting regulations 2016 is unclear on the breach of permit conditions. The instrument will help to bring clarity around the liability of sewage undertakers following a breach of permit conditions due to specific circumstances beyond their control. To bring the regulations in line with current operational practices and facilitate energy recovery and the latest green technology, the current list of exemptions from the prohibition on direct discharges to groundwater needs to be updated. This instrument will update the list.

Finally, there will be a requirement for operators of onshore oil and gas facilities to apply to surrender their groundwater activity permits. Regulators need to be satisfied that any pollution issues are remediated and there are no ongoing risks to the groundwater environment at the point of decommissioning or that may arise in future. This will ensure that the environment is better protected.

These amendments will bring about benefits for groundwater quality, will reduce unnecessary costs to businesses and will also help to ensure that government resources are being used most effectively to protect and preserve groundwater quality for future generations. I beg to move.

My Lords, I am grateful to my noble friend for presenting the regulations before us this afternoon and the opportunity to put one or two questions. He will recall the history of the attempt to frack—the use of hydraulic fracturing—in North Yorkshire, and that the one reason it was not allowed to happen was because no permit was given for the water supply and the reuse of water.

I am very grateful to the Secondary Legislation Scrutiny Committee for its 36th Report, which says that Defra has no intention of revisiting that issue. Can I press my noble friend the Minister to ensure that there will be no end to the current moratorium on hydraulic fracturing, or fracking, in any part of England, to the extent that it might fall within the regulations before us this afternoon? If there was to be an end to the moratorium, can he give us an undertaking that the Government—whichever department it happened to be, as departments come and go—would actually come before both Houses with revised permitting, with regard to fracking?

I now turn to the Explanatory Memorandum, starting with paragraph 7.16 onwards, relating to groundwater activities and the use of geothermal and other green technologies. Could my noble friend explain whether, if there is a significant risk of introducing microbial pollution, no permit would actually be issued in that regard, whether it is close to a sensitive habitat or not? That is just to understand what the purposes of the permitting are. I understand, in the second paragraph of 7.18, that it does look as though this is going to become a regulated activity, so I would just like to understand entirely what the remit of the department in relation to the regulations would be.

On paragraph 7.22, and an unauthorised illegal third-party discharge into a sewer network, could my noble friend highlight specifically what activity is in play there? Obviously, there is a situation where there is a heavy rainfall and sewage can flow on to a highway and then into someone’s house. I understand that highways authorities currently have no responsibility for any sewage overflow, or do not contribute in any way to reducing flood risk in this regard. Is that a loophole, if you like, that the Government would like to close? Obviously, it is unfortunate at the moment that there are not sufficient sustainable drains in place and that there is no end to the automatic right to connect, which may mean that sewage flowing as wastewater from a four- or five-bedroomed house which has been given planning permission can come into a combined sewer and unfortunately spill into houses, either directly into an existing development, or off a highway. So there does seem to be this loophole that highways authorities are not covered. Is that what my noble friend means by an unauthorised illegal third-party discharge? I am just trying to understand what paragraph 7.22 of the Explanatory Memorandum would cover.

With those few remarks, I otherwise welcome the regulations before us this afternoon.

My Lords, I thank the Minister for his introductory remarks to this SI. The Secondary Legislation Scrutiny Committee looked at this instrument in April and raised concerns about groundwater quality and sub-surface energy proposals. As a result, Defra revised the Explanatory Memorandum. Those amendments helped to clarify the instrument, but I have some comments and questions.

As the EM states, groundwater “plays a vital role” for food manufacturing, brewing, wetland ecosystems and the agriculture industry, to which the Minister referred in his opening remarks. The quality and purity of this water is vital to many of these, especially chalk streams, the protection of which was debated last week during the passage of the Levelling-up and Regeneration Bill. This instrument indicates that it will update and clarify the existing control measures within the EPR for protecting groundwater from site-based activities. Will this include the discharge of chicken slurry into the River Wye, for instance, or is this classified as not groundwater but surface water? Perhaps those are the same.

Paragraph 7.7 of the Explanatory Memorandum refers to the EPR streamlining permitting so that a “hierarchy of regulatory control” exists, with permits allowing for a more “bespoke” risk assessment—the Minister referred to this. Will this be applied to sewage discharges in sensitive areas, or will this be covered by the standard rule? For someone who does not really understand some of the language in the EM and the instrument, can the Minister explain what is meant by a “mobile plant permit”? Why are these necessary, and where will they be used?

Paragraph 7.9 indicates that

“EPR regulatory controls are not available to protect groundwater from microbial pollution and heat pollution”.

Why not? This issue is covered in more depth in the revised paragraph 7.18, where more detail about heat pollution and cooling systems is given. This paragraph references greater controls via a permitting approach for installations close to sensitive habitat sites—the noble Baroness, Lady McIntosh of Pickering, referred to these. Can the Minister give an example of what a sensitive site might be? I note that Natural England did not respond to the original consultation, and I wonder whether it has contributed since then.

Paragraph 7.19 is on additions and updates to the list of exemptions from the prohibition on direct discharges to groundwater. Polluted groundwater can be pumped from the ground, treated to remove pollutants and returned to the underlying groundwater. How can this be checked, or will it be assumed that the treatment has taken place?

Paragraph 7.21 intends that “blockers” to “‘green energy’ geothermal schemes” will be removed, thus allowing the activities to be undertaken legally. Does this mean that no objections at all will be allowed against geothermal schemes? This new paragraph in the Explanatory Memorandum also indicates that this SI could lead to more applications for “direct discharges to groundwater”, but they would still “require an environmental permit”. The Environment Agency would grant a permit only if it were satisfied that this would not pose an “unacceptable risk” to the environment. I am concerned that this process will not be rigorous enough, so can the Minister provide reassurance on this vital aspect?

It seems that this instrument is trying to be all things to all people—nine amendments have now been extended, as has the scope. Lastly, new paragraph 7 of Part 3, inserted by the instrument, gives a list of burials with low environmental risk at new cemeteries or new extensions of cemeteries. But what happens to garden burials? They occur, and obviously they are not covered by this instrument. This is an important statutory instrument, and I look forward to the Minister’s response.

My Lords, I have a heavy cold, so if I start sneezing I apologise in advance.

I thank the Minister for his overview of these regulations. His Majesty’s Opposition agree that the management and protection of our groundwater is vital for sensitive ecosystems and a range of key industries that have already been outlined, so we support these proposed changes to the regulatory framework. However, I have a few questions for the Minister following on from the debate held in the other place.

The environmental permitting regime came into force in 2010, and the amendments made by this SI are described as minor tweaks which

“provide a more proportionate, risk-based regulatory approach”.

Although the changes might be considered minor, and although we have no major objections, could the Minister outline when during the last 13 years various deficiencies referenced in paragraph 7.10 of the Explanatory Memorandum were identified and why it has taken so long for the revisions to be brought forward?

As highlighted by the noble Baroness, Lady McIntosh of Pickering, the Secondary Legislation Scrutiny Committee’s comments on the SI focus in part on its potential implications for the use of technology such as hydraulic fracturing. Although Defra says that it is not currently aware of any proposals for low-volume, low-pressure fracturing in deep formations containing groundwater in the onshore oil and gas industry, can the Minister outline any specific stakeholder engagement on the issue and say how long it will be kept under review and reported on should the situation change?

In the House of Commons, the Minister, Rebecca Pow, committed to write in response to specific questions on sewerage undertakers’ liability for certain offences under the EPR. Does the Minister have a copy of that correspondence that could be read into the record? If not, is he able to provide a copy to participants?

Finally—without sneezing—this new suite of potential exemptions will require enhanced monitoring and enforcement arrangements. How confident is the Minister that the Environment Agency has the resources to oversee the additional workload, given that research published by Unchecked UK states that the EA has seen cuts equivalent to 25% of its staffing base and 63% of its funding since 2009?

Protection of our delicate ecosystems in the coming decades is a responsibility that falls on all of us, especially given the challenges posed by climate change, so it is vital that we get the regulatory framework correct and have the enforcement structures in place.

I am grateful to your Lordships for your important contributions to this debate and for what I sense is support for the amendments to the 2016 environmental permitting regulations. These amendments will optimise the regulatory tools available for managing and protecting groundwater quality. I am delighted that we are delivering on the Government’s commitment to ensuring that the quality of our groundwater resources is protected.

I will now address the points made. First, my noble friend Lady McIntosh and the noble Baroness, Lady Anderson, raised hydraulic fracking. The Government’s moratorium on high-volume, high-pressure hydraulic fracking for shale gas is very much still in place. Hydraulic fracturing is already permittable in some geological formations. The amendment will allow control through permitting of stimulation techniques including hydraulic fracturing in all formations that have the potential to release heat and energy, but only where it is demonstrated to be environmentally accessible. I make the point to my noble friend and all noble Lords that there is no change or diminution in protections; it just allows us to have a system that is more suitable to the problems with which we are dealing.

Treated sewage effluent discharges can contain high numbers of microorganisms, including harmful pathogens. Where such discharges occur very close to private drinking water supplies, the risk of potential harm to health increases. This amendment provides the ability for the regulator to apply proportionate, risk-based controls to prevent microbial pollution where the risk deems it necessary.

The existing environmental permitting regulations specify that a water company sewerage undertaker is not guilty of an offence relating to discharging sewage effluent under certain conditions, such as if a third party made an unauthorised discharge into the sewer, resulting in a discharge from the works breaching the permit conditions at that site. That is fair. However, the defence applies only to the offence of operating without a permit, not the offence of contravening permit conditions, which is more commonly the case.

This change is necessary because that situation creates uncertainty for water companies and enforcement difficulties for the Environment Agency. The amendments provide legal clarity for the Environment Agency to be able to take enforcement actions, including prosecutions, with more certainty of success, and do not reflect the previous legal position where the defence was open to both offences of operating without a permit and in breach of permit conditions.

On the point about chicken slurry in the River Wye, that is not classified as groundwater so these regulations do not apply in those circumstances. However, we are tackling that issue through a variety of different actions to protect that important river environment.

The noble Baroness, Lady Bakewell, also asked what we are talking about here. An example would be a SSSI, which we have a vital duty to protect. We want to see 75% of them in good condition in just a few years’ time.

The noble Baroness asked about the definition of a mobile plant permit. It is a type of environmental permit used to regulate shorter-term, temporary activities which utilise equipment that is designed to move from site to site. Discharges into river are separate from discharges to groundwater; both need permits to discharge pollutants into the environment.

On the question of geothermal schemes, only proposed systems in sensitive groundwater locations will need a permit from the Environment Agency. This means that the use of this green energy technology is still an option in locations that cannot meet the exemption conditions, and any potential impact on groundwater quality can be controlled.

On the questions relating to the consultation, the public consultation was held from September to December 2021 to seek views on the nine amendments. The draft statutory instrument was published on 23 March 2023. As I said, there were 264 responses to the consultation. Overall, there was majority support for the consultation, except for the proposals to mitigate potential groundwater impacts from cemeteries, which showed clear opposition. I have some knowledge of this issue. When I was in the other place there was an application to create a green burial ground—the sort of land use which I think many of us would support; it is a type of burial that is particularly attractive to individuals and their families who want one which is perhaps more environmentally friendly. Some of the misunderstandings about the impact of that resulted in me, as the MP, receiving letters saying that body parts would be found floating down the river, and things like that. That is not the case. These burials are very much in keeping with the environment. They need licensing, as do any such schemes, and this will allow us to have better systems of protection.

The noble Baroness raised a point about garden burials; I may have to contact her with details. Due to the low intensity of the impact of such burials, I do not think that is important.

On the question of why this SI has been brought forward and why it has been delayed, I am absolutely happy to explain to the Committee that the current changes are a long-standing issue that has been delayed several times due to reprioritisation during EU exit and Covid. Improving the regulatory regime for groundwater is a priority for this work by reducing regulatory burdens and freeing business to grow and invest.

I will find out about the letter from my honourable friend Rebecca Pow. We are not sure where it is in the process, but I am certainly happy to share it with Members of the Committee.

In conclusion, I hope I have addressed the points raised by your Lordships and thank you again for your contribution. I commend the regulations to the Committee.

Motion agreed.