PLANNING AND ENVIRONMENT DEPARTMENT
ENVIRONMENT DIVISION
Draft Water Resources (Jersey) Law 200- Lodging for Debate
(Public)
Introduction
The Minister for Planning & Environment (“The Minister”) considers that there is an immediate compelling need for the introduction of comprehensive water resources management legislation on the Island for the better protection and management of this vital, precious resource for the benefit of the whole community and the environment. These resources comprise both surface waters (including streams, lakes and reservoirs) and groundwater (from which it is estimated that over 5000 boreholes abstract).
Surface water sources are extensively used by Jersey Water to supply mains water to some 90% of the Island’s population. The Draft Law, when enacted, will greatly assist Jersey Water to perform its statutory obligations to provide an adequate supply of wholesome water for domestic purposes. Surface waters are also used for crop irrigation and in addition provide the habitats for Jersey’s flora and fauna that are dependent on water bodies and wetlands.
Groundwater, on the other hand, is a much smaller component of the Island’s water supplies but it is however vital to those many households (approximately 3500) that are not connected to the mains supply as well as for agriculture, industry and recreational purposes; the Draft Law will, when implemented, also ensure that these resources are adequately protected for present and future generations.
A reliable, adequate supply of clean, unpolluted water is vital for all life on this planet for drinking purposes, for industry, for agriculture, for recreational use and for the protection of all the animals, plants and their habitats. Freshwater must therefore be protected and managed and consequently most countries in the world have already enacted legislation for this purpose; for example, comprehensive water resources legislation was introduced in England & Wales over 40 years ago.
Small islands have particular water resource problems due to their size and in the case of Jersey, its high population density. Freshwater is therefore an extremely valuable resource for the Island and certainly cannot be taken for granted. Jersey is already reliant on Jersey Water’s Desalination Plant to augment its water supplies. The amount of available freshwater in Jersey per capita is lower than in any Region of the U.K. and indeed in many other parts of the world and the Island does not have the benefit of being able to readily import water from other countries.
The best available climate change models show that Jersey will in future experience summers that are much warmer than today and consequently there will be significantly less summer rainfall, albeit that there will be more winter rainfall; however, without new storage reservoirs, the extra winter rainfall cannot be stored to compensate for the shortfall in the summer months. This further highlights the need for sound water resource management on the Island. As well as this external climate factor, water use patterns are changing in the Island; people are using more water as lifestyle patterns change and the population increases.
Jersey’s freshwater resources are locally derived, originally falling on the Island as rain, hail, sleet or snow. The majority of the water taken for human use is collected from streams by Jersey Water to be stored in reservoirs and supplied to households on the Island. The rest of the water runs off back into the sea, evaporates or soaks into the earth and the underlying rock strata to form groundwater. The remaining households in the Island (i.e. those who are not on mains supply) rely on this groundwater for drinking and other domestic purposes and it is also used to irrigate crops and for industrial and leisure related purposes. All this further reinforces the importance of protecting Jersey’s groundwater from the potential adverse effects of over- abstraction or poor management.
Jersey is very unusual in the world in not already having legislation in place to guard against over-abstraction and impoundment and to ensure that the limited amount of water in the Island is shared equitably for the benefit of everyone and the environment. Although there is a Law in Jersey to protect water from pollution (Water Pollution (Jersey) Law 2000), there is currently no Law in place to protect the Island’s water resources.
The Draft Water Resources ( Jersey ) Law 200-
Following a dry period in the late 1980s, a working party was set up on the Island to examine the subject of water resources in Jersey. The working party, under the chairmanship of the late Major John Riley, published its report on the Safeguarding of the Water Resources in Jersey in March 1992. The report was debated by the States in September 1992 (P.78/1992). The States acknowledged the importance of water management and charged the then Public Services Committee to produce comprehensive water legislation. As the first stage in overall water management legislation, the Water Pollution (Jersey) Law 2000 was debated by the States in March 2000 and was fully implemented from 27 November 2000. During the debate, certain Members expressed the importance of introducing a Water Resources Law to complement the Water Pollution Law. In Summer 2003, the Draft Water Resources (Jersey) Law 200- was duly subjected by the then Environmental & Public Services Committee (“the former Promoting Committee”) to an extensive consultation process (including States’ Members, various former States’ Committees and relevant Stakeholders) and many of the comments received were subsequently incorporated into the Draft Law.
The Draft Law now being presented to the States’ Assembly -
· Provides for the protection, management and regulation of Jersey’s water resources and the protection of all the animals, plants and habitats that are dependent on them.
· Allows for the proper allocation and sharing of this valuable resource for the benefit of the whole community, ensuring that sufficient water is available for drinking as well as for industry, agriculture and recreation.
· Introduces a new licensing regime for the abstraction and impoundment of water subject to important exemptions (including a threshold level below which a licence will not be required, as well as a total exemption for all domestic abstractions).
· Protects existing and future abstraction rights (both public and private).
· Complements the Water Pollution (Jersey) Law 2000 in lowering pollution levels that may be caused by over-abstraction.
· Allows for the collection of data on the number and distribution of boreholes and current and future abstraction rates and will allow public access to more environmental information.
· Allows for the management of drought situations and for long-term management strategies to be implemented to (inter alia) minimise the negative impacts of global warming and climate change.
· Allows for powers of entry for monitoring and other purposes and contains appropriate enforcement provisions.
The Scrutiny Process
In February 2004, the former Promoting Committee approved the Draft Law in principle for submitting to the Attorney General (AG) for clearance in respect of (inter alia) its compatibility with the Human Rights Convention (HRC); subject thereto the Draft Law was ready for lodgement au greffe. However, before the AG’s audit had been completed, the Draft Law was called-in for review by the then Vibert Shadow Scrutiny Panel (SSP) in April 2004.
During the SSP’s consideration of the Draft Law, a fundamental disagreement arose as to whether or not deep groundwater in Jersey is recharged from local rainfall (as opposed to, from groundwater flowing from France) and as such it is a finite resource that needs to be managed for future equitable use. The British Geological Survey (BGS), who had undertaken detailed hydrogeological studies on the Island during the preceding 15 years, gave evidence to the SSP on behalf of the former Promoting Committee in relation to that particular issue. BGS contended that for the most part, Jersey’s groundwater storage and transport takes place in the top 25 m of saturated rock (i.e. from the top of the water table to 25 m below it, commonly referred to as the “shallow aquifer”). Nevertheless, BGS did acknowledge that some boreholes in Jersey abstract usable quantities of groundwater at depth; details of approximately 40 such boreholes had been included in their original 1991 Technical Report to the States (WD/91/15). However, BGS told the SSP that all the then available evidence indicated that water yields obtained from deep fractures have a limited resource volume compared to the shallow aquifer. In contrast, local water diviners told the SSP that the deep groundwater beneath Jersey represents a separate and major groundwater resource capable of significant future development.
In their Report published on the 13 December 2004 (S.R 3/2004) the SSP concluded that no comprehensive water resources management legislation should be introduced on the Island for an indefinite period, for two principal reasons, namely –
In the first instance, a scientific investigation (making use of local knowledge) should be undertaken in order to determine conclusively whether the Island benefits from significant quantities of groundwater flows from France AND what is the extent of the exploitable sources of water that are known to exist at depth beneath the Island (“The Deep Water Issues”).
Moreover, substantial further data needs to be collected on the Island’s water resources (“The Data Collection Issue”).
Response to SSP Report
On the 15 March 2005, the former Promoting Committee lodged its formal Response (S.R. 3/2004Res) to the SSP Report. Basically, they did not agree with the view expressed by the SSP, namely that the Draft Law should be deferred indefinitely. In particular, in relation to the two principal reasons put forward by the SSP in support of a deferment, the former Promoting Committee responded as follows –
(1) Irrespective of the outcome of the investigations into the Deep Water Issues, comprehensive water resources legislation will be required on the Island in any event, since in terms of volume of abstractions, the majority rely on surface waters.
(2) In relation to the Data Collection Issue, the SSP had not given sufficient cognisance to the extensive data that had already been collected over the previous 15 years or so, both by the Department itself and by its consultants. Moreover, the question of data collection was an on-going process and would continue and indeed be supplemented following the enactment of the Draft Law.
Accordingly, the Draft Law was, following receipt of the necessary HRC confirmation from the AG, duly lodged au greffe by the former Promoting Committee on the 27th September 2005 (P206/2005). However, notwithstanding its formal Response in relation to the Deep Water Issues (see above), the former Promoting Committee decided in October 2005 that the necessary scientific investigations should be carried out in order to assess the magnitude, sustainability and origin of the deep groundwater resources that are present beneath the Island, before any debate on the Draft Law by the States’ Assembly takes place. The former Promoting Committee duly established the Deep Groundwater Advisory Group (DGAG) in order to undertake those investigations.
In early December 2005, the former Committee system was replaced by the current system of Ministerial Government; from the transfer date the Minister for Planning & Environment took over responsibility for the Projet. The Minister has since fully reviewed this matter, including the SSP Report and is in general agreement with the stance taken by the former Promoting Committee in relation to that Report, and in particular with its decision to set up the DGAG with a view to having the deep groundwater investigations undertaken before the Draft Law is debated by the States’ Assembly.
The Deep Groundwater Advisory Group (DGAG)
The composition of the DGAG comprised of 2 Jersey based geologists, 3 local water diviners and drillers, the Managing Director of Jersey Water, 2 States’ Members (Deputies S Ferguson & R Duhamel) and the Director of Environment. The DGAG held its inaugural meeting in December 2005 and its Terms of Reference were, taking an evidence- based approach, to –
Examine the theory that Jersey has a groundwater connection with France that contributes to the Island’s overall water resources.
Review the evidence for deep groundwater resources on the Island and comment on its likely contribution to the overall water resources of Jersey.
On 7 June 2006, all DGAG members endorsed the investigations by signing an agreement that stated that “the definitive test” for proving whether or not flowing freshwater connections with mainland Europe exist will be to “compare the isotopic signature of the water sampled from the two test boreholes with that of water from the surface aquifer”. Within the signed document, all parties agreed to accept the findings of the investigations and to “drop all claims of an underground water connection between Jersey and the European mainland”, if the investigation concluded that no significant difference existed between deep groundwater and the shallow aquifer.
Two of the water diviners/driller members of the DGAG, being the main supporters of the claim to the underground flowing freshwater streams, specified two exact locations where the test boreholes should be sited, one at La Rocque in the south- east of the Island and the other at St Catherine in the north- east. In addition, they specified the required depths for each of the boreholes (being 150 ft (45.7m) and 250 ft (76.2m) respectively), which they considered were the optimal positions where the underground streams from outside the Island were located. No restrictions were placed on them in relation to either the chosen locations or depths. In the event, the boreholes were in fact drilled to greater depths, namely 180 ft (55.5m) and 260 ft (79.5m) at La Rocque and St Catherine respectively.
The detailed methodology, analysis of data and reporting of the results was to be undertaken by the nominated joint consultants, BGS and Entec UK Ltd (the latter had provided the Technical Advisor to the SSP in 2004). The agreed investigations were undertaken in autumn 2006 and the joint BGS/ Entec Report was duly issued in December 2006. The Report concluded on the basis of the investigations undertaken that –
(a) The isotopic signatures obtained from the shallow and deep groundwater at the two test locations are indistinguishable and moreover are consistent with the range of isotopic signatures for Jersey groundwater.
(b) There is no evidence that ‘underground streams’ exist at either location. Moreover, there is no evidence to suggest that the shallow or deep groundwater beneath Jersey has a source that is located outside of the Island; this supports the proposition that Jersey’s groundwater is recharged entirely by the rainfall that falls on the Island.
(c) Groundwater at depth is hydraulically connected to shallower groundwater via a network of interconnected fractures and does not represent a separate major groundwater resource (i.e. from that already ‘tapped’ by shallower wells and boreholes) that would be capable of significant future development to contribute to the water needs of the Island.
On the basis of the signed agreement of the DGAG members, the above findings of the investigations represent the “definitive test”.
The Minister has duly examined the Report and likewise regards its findings as conclusive in relation to the Deep Water Issues that were identified by the SSP. Accordingly; the Minister believes that the Draft Law should now be debated by the States’ Assembly without further delay.
Amendments to the Draft Law
Since the Draft Law was originally formulated by the former Promoting Committee, it has undergone several changes. Firstly, substantive amendments were made to it in order to address the constructive comments that were received during the extensive consultation process that was undertaken in summer 2003 (see above). Secondly, further substantive amendment have been made to the Draft Law following the scrutiny process, brief details of which are set out below –
[A] By the Environmental & Public Services Committee
The requirement for returns to be made to the Regulator by those abstracting below the exemption threshold has been included (Article 12 (7)).
It has been made clear that the granting of a Test Pumping Consent by the Regulator does not guarantee the subsequent issue of an abstraction licence (Article 16 (1)).
Provision enabling the Regulator to have access to relevant borehole data has been added (Article 34 (1)).
[B] By the Minister for Planning & Environment
Since taking over responsibility for this Projet, the Minister has reviewed the matter and has also taken further advice from an independent UK based Water Resources Consultant on the specific issue of the appropriate exemption threshold for Jersey (below which a licence will not be required). As a consequence, the Minister has made further amendments to the Draft Law as follows –
· The exemption threshold has been increased from 3m3/day to 15m3/day (Article 12 (1)).
· All abstractions for domestic purposes will be totally exempt from the licensing requirements of the Law (Article 12 (1)).
· Provision to enable the States, by Regulations, to vary (inter alia) the exemption threshold or to impose different thresholds for different parts of the Island, has been incorporated (Article 12 (5) – (6)).
Summary
In the view of the Minister -
1. The Draft Water Resources (Jersey) Law 200- will provide for the protection, management and regulation of water resources in Jersey and the promotion of the conservation of water dependant animals and plants and their habitats.
2. It will allow for the proper allocation of this most precious of resources for the benefit of the whole community and the environment, ensuring that sufficient water will be available for drinking as well as for industry, agriculture and recreation; very importantly, it will protect current and future abstraction rights, both public and private.
3. It will allow for a long-term integrated and sustainable approach to be adopted for the management of Jersey’s water resources in line with the approach adopted in the European Union and many other countries world-wide.
Financial and Manpower Implications
It has been estimated that the total cost of implementing all the provisions of the Draft Water Resources (Jersey) Law 200- will be approximately £100,000 per annum. This includes the appointment of a hydrogeologist as a specialist technical officer to administer the provisions of the Law.
It is intended to recover the full costs of implementation of the Law by charging for abstraction and impoundment licences. However, households with private domestic supplies will be totally exempt from the licensing provisions of the Law and hence will not be charged. As Jersey Water (who is totally supportive of the need for the Law) will be the main abstractor, most of the costs will be borne by the Company. It is estimated that this will increase the cost of an average domestic water bill by less than £3 per annum, which is considered by the Minister to represent good value for money in order to protect the Island’s water resources. It has been estimated that the cost of other abstraction licenses amounting to some 120, (all non-domestic), will range between approximately £50 - £150 per annum, depending on the quantity of water licensed to be abstracted.
European Convention on Human Rights
Article 16 of the Human Rights (Jersey) Law 2000 requires a Minister in charge of a Projet de Loi to make a statement about the compatibility of the provisions of the Projet with the Convention Rights (as defined by Article 1 of the Law). On … 2007 the Minister for Planning & Environment made the following statement before Second Reading of this Projet in the States Assembly –
In the view of the Minister for Planning & Environment the provisions of the Draft Water Resources (Jersey) Law 200- are compatible with the Convention Rights.
Written by: | Gerry Jackson – Assistant Director - Environmental Protection |
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Approved by: | Chris Newton, Director of Environment |
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Attachments:
Draft Water Resources (Jersey) Law 200-
ED\15\03\02
Ministerial Decision ref: MD-PE-2007-0023
05 February 2007
gov.je