PLANNING AND ENVIRONMENT
Water Resources (Jersey) Law 2007 Enforcement Approach
Public Item
Purpose of the Report
The purpose of this report is to request that the Minister for Planning and Environment approves the Water Resources (Jersey) Law 2007 enforcement approach detailed in this report.
Background
Article 11 of the Water Resources (Jersey) Law 2007 (the Law) states that a person shall not cause or knowingly permit the abstracting of water from a source of supply or the impounding of water in a source of supply, unless he or she is acting in accordance with a water resources licence.
The sub-paragraphs of Article 12(1) detail exemptions for which the licence requirement does not apply. Article 12 (1)(b) and (c) of the Law specifies that water abstractions for the domestic requirements of a household or the abstraction of groundwater not exceeding in aggregate 15 cubic meters in any 24 hour period are exempt from the requirement to licence, provided that such abstractions are registered in the prescribed manner.
The information that is required to register an abstraction of water was prescribed in the Water Resources (Registration) (Jersey) Order 2008. The Law and the Registration Order came into force on 1 January 2009.
Until 31 March 2009, applications to license a water abstraction could be submitted under the Transitional Arrangements (Schedule 3 of the Law), if water had been lawfully abstracted at any time within the period of 3 years prior to 1 January 2009.
During 2009, a large number of applications to register or licence water abstractions were submitted, processed and issued to come into force on 1 January 2010, as required under Article 54(3) of the Law.
As at 1 January 2010, any abstraction of water from a source of supply is in contravention of the Law, if not undertaken in accordance with a Water Resources licence or, if exempt, a registration.
Discussion
Licensing
182 licences came into force on 1 January 2010. The majority of these (164) were applied for and granted under the Transitional Arrangements and significant numbers are for abstraction from multiple sources. A total of 182 licences have now been issued, of which 113 licences were for the abstraction of ground water (134 sources) and 68 for abstraction from surface waters (91 sources).
All future licence applications will be regarded as new abstractions and will have to be submitted under standard procedures. This procedure involves the gazetting of the application, providing the opportunity for the public to make representations that have to be taken into account when assessing and granting (or refusing) the application. This procedure will require a period of two to three months at minimum before a licence can be issued.
Abstraction of water prior to the grant and issue of a licence is an offence under the Law. This may cause difficulty in some cases where the water supplies are required more immediately than this timeframe would permit and it will therefore be important that licence applications are submitted well in advance of the time when abstraction is to commence. It is considered that most (if not all) water sources that are in regular use have been licensed.
There are likely to be a limited number of irregular or sporadic abstractions from surface and groundwater sources (particularly for agricultural purposes) that have not been licensed to date. There are numerous small agricultural reservoirs that have not been used for many years and which have not been licensed. The same may apply to a small number of boreholes and wells.
Such sources are only likely to be brought into use during very dry periods and many could remain unused even during drought conditions. There is no obvious means to locate such sources, except by observation (e.g. spray irrigation in an area where there are no licensed sources). Such sources will undoubtedly come to light in future years and will need to be licensed.
With regard to potential surface water sources that could be used for abstraction, it will be necessary to compile a list of the locations of all licensed and un-licensed surface water impoundments, in order that the future use of the un-licensed sources can be easily determined. Boreholes and wells that are not used for irrigation purposes are more likely to come to light during the investigation of pollution incidents.
Registration
To date, almost 2900 groundwater sources of supply have been registered, with a further 134 licensed. These sources provide water supplies to 2967 properties, of which around 2500 are domestic household supplies (as opposed to business, garden watering or car washing etc.).
Despite the widespread publicity during 2009, advertisements in the media and extended deadlines for applications, and according to 2001 Census figures, there would appear to be a number of people who, as yet, still remain unaware of the requirement to register.
There is also thought to be a sizeable group of people who believe the misinformation that charges will be imposed on registrations at some time in the future and are therefore reluctant to register their water sources. There would also appear to be a smaller group of people that fundamentally disagree with the Law and regard registration as an intrusion into their private affairs. This group are likely to strongly resist the requirement to register their water sources.
During the latter half of 2009, households that did not appear to have a mains water supply and for which no source of supply had been identified were contacted and asked to complete a questionnaire to provide information regarding their supply. All of the households that used a well or borehole to obtain their supply were then asked to complete an application form to register their source of supply. This incentive secured almost 100 additional registrations. About 50 registration application forms have yet to be returned and will be followed up in the near future, as will those households that did not respond to the letter and questionnaire.
Un-registered sources cannot be taken into account when assessing the probable impact of any proposed large abstraction boreholes in the future and may be overlooked during pollution incidents or when the protection of sources of supply from potential pollution is being assessed.
Enforcement Approach
Causing or knowingly permitting un-licensed or un-registered abstraction from a source of supply is subject to penalties under the Law (Article 13). It should however be noted that one of the principal purposes of implementing the Law was to permit the gathering of information about sources of supply currently in use on the Island, which would not otherwise be available.
With this purpose in mind, it is considered that strict enforcement of the letter of the Law is likely to prove counter-productive and will probably be unsuccessful, unless it can be clearly demonstrated that people were given every opportunity to licence or register their abstractions.
It is proposed that it will be more productive to continue to pursue an educational, facilitative and persuasive means of enforcement, which will encourage the licensing and registration of currently un-licensed and un-registered abstractions. It is therefore proposed that;
· anyone wishing to register a qualifying un-registered current abstraction from a borehole or well should be allowed to do so without penalty.
· the process of identifying properties that do not have mains water supply and which have not registered a source of supply should continue in the future, in order that householders (or owners of such properties) can be advised of the need to register and to be assisted or persuaded to do so.
· people abstracting from an un-registered borehole or well that is identified during routine Departmental activities (for example as a result of a nearby pollution incident) should be actively encouraged and assisted to register.
· people operating un-licensed abstractions will be actively encouraged and assisted to licence them.
· anyone wishing to licence a currently un-licensed abstraction will be allowed to do so using the standard application procedures; (i.e. it will be necessary to regard the abstraction as an effectively new abstraction that will be assessed with regard to the effect of the abstraction on existing licensed and registered abstractions). This principal will be applied even if the abstraction has also occurred historically, as it is no longer possible to apply for a licence under the Transitional Arrangements.
· If the borehole was in use prior to 1 January 2010 and continued to be in use up to the date of application (even sporadically), the licence charge will be backdated to that date (i.e. as if the licence had come into force at that date as required by the Law). The licence commencement date and duration will also be backdated. Where abstraction commenced after 1 January 2010, the licence charges will be pro-rata for the period over which abstraction actually occurred and the licence commencement will also be backdated to that date.
All contacts and correspondence with person responsible for abstracting water from an un-licensed or un-registered source of supply will be carefully recorded and filed, in case it becomes necessary to demonstrate that every effort and assistance had been offered to licence or register when considering a prosecution.
Prosecution under the Law will however be considered in future. For example, when repeated requests to apply to licence or register the abstraction can be shown to have been met with refusal, or alternatively a lack of constructive communication or action on the part of the responsible person.
Conclusion
It is considered that the above enforcement approach will ensure that people responsible for the abstraction of water from a source of supply are treated fairly and made fully aware of the requirement to licence or register their abstraction as required under the Water Resources (Jersey) Law 2007.
Procedures employing the provision of information, persuasion and assistance will, it is anticipated, be more productive than immediately invoking the penalties for non-compliance with the Law.
However, the penalties for not licensing or registering an abstraction from a source of supply are still available in the case of refusal to comply with the Law.
Recommendation
That the Minister approves the proposals for enforcing the Water Resources (Jersey) Law 2007detailed in this report for the enforcement of the licensing and registration of water abstractions from sources of supply.
Written by: | Hydrogeologist |
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Approved by: | Assistant Director, Environment Division (Environmental Protection) |
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