Abstractors within the Broads Special Area of Conservation
In June 2021 the EA (Environment Agency) completed a review of the effects of water abstraction licences on three SSSIs (Sites of Special Scientific Interest) within the Ant river valley under its RSA (Restoring Sustainable Abstraction) programme.
These three SSSIs are part of The Broads SAC(Special Area of Conservation) which is made up of a total of 28 separate SSSIs distributed throughout five river valley systems in north east Norfolk and north Suffolk.
Following a judicial review and Court Order in October 2022, the EA will be extending the approach adopted for its assessment of impacts from water abstraction licences on the three Ant valley SSSIs to all other parts of The Broads SAC.
The EA’s assessment will focus primarily on the effects of existing abstraction licences, both permanent and those with a time-limit/expiry date. The outcome of this assessment will determine whether the EA needs to use it statutory powers to curtail existing levels of abstraction to avoid deterioration of natural habitats within the SAC.
It will also inform the EA’s consideration of whether existing abstraction licences can be renewed upon expiry in their current form, or they need to be modified or refused.
Ultimately, the levels of abstraction that are established as a result of the proposed assessments will become a new baseline against which any further applications for new abstraction licences will be assessed.
Norfolk Valley Fens and Waveney and Little Ouse Valley Fens
Currently, 16 out of the 17 component SSSIs of the SACs are not in favourable condition and all bar one have issues related to water supply.
Natural England has asked the EA for a review and update of existing understanding and modelling of the SAC’s hydrological function, pressures and condition and the extent and effect of current abstraction.
Natural England has also commissioned ecohydrological investigations for key wetland protected sites, including the SSSIs associated with these SACs, across Norfolk and Suffolk.
Reports for a first tranche of sites are due in 2025 and a second tranche is planned for 2026. This work will contribute to a planned approach that included updated hydrological modelling by the Environment Agency.
2024/25/26 abstraction licence renewals and variations
As there are abstraction licences that are due for renewal, and or variation, during the period while the Natural England investigations are taking place, the EA has created a screening process to enable licences that pose no/low risk to the SAC sites to be issued with a short time limit until 31 March 2027.
Licences that will be screened as no/low risk are ones that, due to their permitted quantities and distance from any SAC SSSI, the EA believes would not be contributing to any significant abstraction pressure to any of the designated sites.
It is the EA’s intention that the appropriate groundwater modelling, assessment, investigations, and options appraisal will be completed in advance of 31 March 2027.
Any licence application that is screened as high risk will remain on hold, operating under LEV (Limited Extended Validity) until further assessment is completed.
This will allow no/low risk licence holders to continue to operate with minimum disruption and also means that the EA keeps a minimum of licences on hold for long periods of time.
Licences screened as high risk are ones where the EA believes there is potential, due to the permitted quantities and distance from any SAC SSSI, for this to be contributing to abstraction pressures at one or more of the designated sites.
The screening process
An outline of this screening process is described below.
- Identify which abstraction licences expiring in 2024, 2025 or 2026 fall within a 5km buffer zone of any of the SACs. The 5km zone was chosen as the limit where abstraction is most likely to cause an adverse effect on any of the SACs. All of the licences included within the 5km zone would have been previously included in the RoC (Review of Consents) investigations.
- An assessment of the impact of abstraction from these licences will be available for review within the previous RoC reports; these will be reviewed. This exercise will also consider the effect of any large PWS (public water supply) licence located just outside any of the 5km buffer zones.
- Working through each SAC SSSI, the previous RoC report(s) should be assessed for each licence renewal within the 5km zone. Note the reasons for the site designation, and how vulnerable the species and/or habitat are to the impact of abstraction pressures.
- Taking a precautionary approach, each licence that is being assessed should be classed as posing a potential risk to the site if it has been included in the list of licences that was identified at stage two of the RoC to have a likely, significant effect on this SSSI.
- If the licence that is being assessed was not previously identified at stage two of the RoC, then it will be classed as no/low risk and it can be issued with a short time limit to 31 March 2027.
- If the licence that is being assessed has been identified at stage three of the RoC, but was shown to be contributing to less than 1mm impact on the SSSI in combination, then the EA can class it as no/low risk and it can be issued with a short time limit to 31 March 2027.
- If the licence that is being assessed was taken through to stage four of the RoC process on a precautionary basis, the EA can consider issuing with a short time limit, however the EA would need to apply a level of professional judgement to the impact of licences that reached this stage. If a licence was considered to be having a no/low risk impact on the SSSI at this stage, then it can still be considered for issuing on a short-term basis. These criteria will potentially be different for each site and will need to be assessed on a case-by-case basis. Any decision to issue a licence that reached stage four will need to be defensible if challenged and if there is any doubt over the in-combination impact effecting site integrity then the licence should be considered high risk and kept on hold.
By working through this process for each individual licence renewal and SAC SSSI, the EA will break down the 2024, 2025 and 2026 renewals down into those where there is a justifiable reason that a licence can be issued with a short time limit (31 March 2027), and those licences that will need to remain on hold until further assessment(s) have been completed by Natural England and the EA.
After the screening process is complete, the 2024/25/26 renewals that have been classed as no/low risk will pass back to NPS (National Permitting Service) to renew with an expiry date of 31 March 2027.
The NPS will need to keep the remaining high-risk applications on hold until March 2027, with licence holders being able to continue to operate under LEV (Limited Extension of Validity) until the EA has made a decision on their application, and/or any appeal is concluded.
Any application for new water included on licences within any of the 5km SSSI buffer zones will also need to remain on hold until further assessment has been completed. The only exception to this would be when the EA is confident that the licence in question is not in hydraulic connectivity with any of the SAC SSSIs.
Other EA communications to licence holders
Abstractors outside of these areas may still be in receipt of correspondence from the EA, sharing information about changes to their abstraction licences following a review of catchments based on the catchment common end dates.
Licences are being reviewed using the same approach, but the process is different depending on whether a licence is permanent or time limited.
For permanent licences, under the Environment Act 2021, the EA has powers to vary or revoke permanent abstraction licences on or after 1 January 2028, without the payment of compensation where:
- it is necessary having regard to a relevant environmental objective, or
- to otherwise protect the water environment from damage.
The second point above potentially gives the EA quite broad powers to propose changes to licences.
They are writing to those abstraction licence holders that may be causing damage to provide notice and further information.
The EA will provide three sets of notifications to those whose licences will potentially be changed, early notification of potential licence reductions, followed by expected licence reductions as the review progresses, and finally confirmation of licence reductions before implementation.
The catchment review programme will be completed by 2035, and some licence holders have already received early notification of potential licence changes.
Anyone who receives a letter stating that their licence may be reviewed should consider taking independent legal advice to ensure that they understand the implications of the letter, the process that will be followed and the opportunities to influence the final decision. It is important to engage with the process to ensure that you do not miss any opportunities to present your case. You may also wish to consider whether it is necessary to gather your own expert evidence to support your case.
Midlands licence holders
The EA is also writing to licence holders in the Midlands at the moment who are not using the full quantity on their abstraction licence inviting them to reduce the amount on their licence. This is part of a rolling programme that targets unused licences across the country.
There are large numbers of agricultural sector time limited licences that will expire between 2025 and 2030. Licence holders will need to apply to renew their licences if they want to carry on abstracting as they do now.
For the EA to renew a licence, the licence must pass the three tests for renewal.
These are:
- the abstraction must be environmentally sustainable
- the abstraction must have a continued need for the water, and
- must use the abstracted water efficiently.
In terms of the environmental sustainability test, the EA will concentrate on taking action to prevent deterioration and protect designated sites and species.
The need to prevent deterioration may see unused headroom on licences being recovered (also known as ‘licence capping’). Where a time limited licence is in a river catchment or groundwater body that has too much abstraction overall, then further changes to time limited licences may be needed as part of the catchment review programme noted above.
In these cases, the EA may only renew licences for six years. The EA is currently writing to time limited licence holders to let them know if there are likely to be any problems with renewing their licences.
How the NFU can support you
NFU members can obtain free initial legal and professional advice by calling NFU CallFirst on 0370 845 8458. If you require more detailed independent legal advice in your particular circumstances, NFU CallFirst can refer you to one of the NFU’s legal panel firms.
