Environmental Law News Update

Navigating the law of drought. Hello Drought – Goodbye Holidays!

For many in the industry endless sun means one thing, drought and the probable delay of those summer holidays. If you see a lawyer do a rain dance, beckoning those clouds closer you now know why.

When the rain stops, the public sees depleted reservoirs and hosepipe bans. Water undertakers see a more exacting legal landscape: statutory thresholds, demand restrictions, abstraction powers, environmental duties and separate regulatory approval processes.

‘Drought law’ (let’s call it that) is therefore about considerably more than restricting the use of hosepipes. It establishes a graduated statutory regime through which water undertakers can manage demand, secure or protect additional supplies and, in the most serious circumstances, seek more extensive restrictions on the use of water.

Planning before the crisis

The starting point is drought planning.

Section 39B of the Water Industry Act 1991 requires every water undertaker to prepare, publish and maintain a drought plan, and provides for its periodic review and revision. A drought plan sets out how the undertaker will continue during drought to discharge its duties to supply adequate quantities of wholesome water, with as little recourse as reasonably possible to drought orders and drought permits.

The plan must address, among other matters, measures to restrain demand, measures to obtain additional water and arrangements for monitoring the effects of drought and the measures taken in response.

That planning function is important because the more intrusive statutory powers cannot simply be deployed overnight. The Environment Agency’s current drought-planning guidance expects undertakers to identify the authorisations which may be required and to undertake the preparatory work necessary to support applications before those powers are operationally needed.

Temporary Use Bans

The measure most familiar to the public is the Temporary Use Ban (“TUB”), commonly called a hosepipe ban.

Under section 76 of the Water Industry Act 1991, a water undertaker may prohibit specified uses of water if it thinks that it is experiencing, or may experience, a serious shortage of water for distribution.

A TUB does not require a drought order or prior ministerial approval. It is imposed by the undertaker itself, subject to the statutory procedural requirements.

Its scope extends well beyond watering gardens. Restrictions may include using a hosepipe to clean private vehicles, water gardens, fill or maintain domestic ponds and clean domestic walls, windows, paths, patios and other artificial outdoor surfaces, as well as filling or maintaining domestic swimming or paddling pools and ornamental fountains, subject to the statutory exceptions. The Water Use (Temporary Bans) Order 2010 defines and qualifies those categories and provides for a number of exceptions.

A TUB is therefore principally a demand-management measure (and a lot of work).

Non-Essential Use Bans

A Non-Essential Use Ban (“NEUB”) is legally different.

It is not merely a wider TUB. A NEUB requires an ordinary drought order under the Water Resources Act 1991, with the relevant purposes prescribed by the Drought Direction 2011.

Those purposes are principally commercial or non-domestic and include operating mechanical vehicle washers, cleaning non-domestic premises, watering certain plants on commercial premises, cleaning industrial plant, suppressing dust and operating cisterns.

The distinction between a TUB and a NEUB is therefore important: they arise under different statutory powers, affect different categories of water use and require different legal procedures.

Drought permits and drought orders

Under section 79A of the Water Resources Act 1991, the Environment Agency may issue a drought permit where, by reason of an exceptional shortage of rain, a serious deficiency of water supplies exists or is threatened. A permit may authorise an undertaker temporarily to take water from a specified source, subject to conditions or restrictions, or suspend or modify restrictions or obligations which would otherwise govern the taking of water.

An ordinary drought order, made by the Secretary of State, can confer wider powers relating to abstraction, discharge and restrictions on non-essential uses. The statutory regime also permits an ordinary order where a deficiency in the flow or level of inland waters poses a serious threat to dependent flora or fauna.

Beyond that lies the emergency drought order. This requires the additional statutory condition that the deficiency is likely to impair the economic or social well-being of persons in the affected area. Such an order can authorise substantially more intrusive measures, including wider restrictions on water use and provision for supplies through standpipes or water tanks.

The legal importance of preparedness

The essential point is that inclusion of a drought measure in a statutory plan does not itself authorise its use.

TUBs, permits and drought orders each have their own statutory thresholds and procedures. Applications for permits and orders require evidence demonstrating that the statutory test has been met and compliance with the applicable procedural requirements, including notification and the consideration of objections, together with the environmental assessment and supporting evidence required in the circumstances.

The visible manifestation of drought may therefore be a hosepipe ban. The more significant legal work takes place much earlier: identifying the appropriate statutory power, planning for its possible use, assembling the evidence and securing the necessary regulatory authority before water resources reach crisis point.

As drought becomes a more familiar feature of water-resource management, that legal framework will assume increasing importance for water undertakers, regulators, infrastructure operators and environmental lawyers alike.

The work must be continuous, and the plan must be strong and evolve – in these situations a victorious undertaker is a prepared undertaker.

Dr Michael J. Bowes

Dr of Water Law and Barrister