Policy paper

Abstraction and impounding activities: assessing licence compliance

Updated 16 January 2024

Applies to England

This guide explains how the Environment Agency assesses and categorises compliance of water abstraction and impounding activities with licences issued under the Water Resources Act 1991.

The Environment Agency assesses compliance in a way that is:

• consistent
• transparent
• proportionate

They use a general approach which they then adapt to the specific activity, the location, and sensitive receptors (people, animals, property and anything else that could be affected by the hazard).

This guide includes:

• 6 principles which explain how the Environment Agency assesses and categorises permit and licence breaches
• an explanation of what happens after a compliance assessment

The Environment Agency uses 6 principles across several regulatory regimes, such as waste, installations and water quality. For abstraction and impounding licences, they follow principles 1, 3, 4 and 6 only. This guidance includes principles 2 and 5 for information.

There’s more information on when the Environment Agency carries out assessments and inspections in the guidance on how you’ll be regulated.

The Environment Agency focuses on where there is likely to be the greatest risk to human health, quality of life and the environment. They may use data on past compliance to target future inspections at specific licences, operators, or sectors. The environmental effect of not complying with a licence (non-compliance) is one of the public interest factors considered when the Environment Agency decides what enforcement action to take. Their enforcement and sanctions policy gives more information.

The planned move of abstraction and impounding licensing into the environmental permitting regulations will not affect the assessment and categorisation of licence compliance.

Principle 1: record all non-compliances

The Environment Agency may record the results of a compliance assessment on an inspection form. They will give the licence holder a copy of the form.

They record all non-compliances identified during the assessment on this inspection form. This includes non-compliances that are not directly related to a licence condition.

They only give a risk category to non-compliances that relate directly to licence conditions. (See principle 6 for more information about risk categories.)

A licence contains conditions which are grouped on the inspection form into 13 overall areas. Not all 13 areas will apply, depending on the activities and complexity of the licence.

1. Source of supply
2. Point of abstraction
3. Means of abstraction
4. Purposes
5. Period
6. Quantities
7. Means of measurement
8. Records
9. Provision of information
10. Special conditions
11. Land (only if specified)
12. Charging factors
13. Other provisions

Principle 2: consolidation

Principle 2 does not apply to abstraction and impounding licences.

The Environment Agency records all non-compliances they find during inspection on an inspection form. For abstraction and impounding activities, they do not combine non-compliances for scoring purposes.

For administrative reasons, they may record periods of repeat or continued offending under one record where it can be shown to be part of one event. They decide this on a case-by-case basis.

Principle 3: assess the reasonably foreseeable impact

Licence conditions minimise impact on the environment and help the Environment Agency to protect England’s water resources for the future. The risk category they give to a non-compliance reflects the potential impact it could have if not addressed promptly and adequately. Not meeting licence conditions can lead to:

• negative impacts on the water environment
• impact on the rights of other water users, including water availability for other licence holders

The Environment Agency’s assessment of the potential impact is known as the ‘reasonably foreseeable impact’. They assess on a case-by-case basis using knowledge, evidence, professional judgement, and common sense. For example, a non-compliance with a licence condition could have a significant risk category in one location (such as an over-abstracted chalk stream) but may have a lower risk category if it happened somewhere else.

Regulatory officers may take the following factors into account when assessing the reasonably foreseeable impact:

• the water availability of the catchment as described in the abstraction licensing strategies
• the location of sensitive sites and species, such as sites of special scientific interest and freshwater pearl mussels
• Water Framework Directive classification and the flow status
• other water users, including licensed and exempt abstractors, as well as recreational uses such as boating
• the flow or level in the impacted surface water or groundwater at the time of the breach
• any procedures, resources and infrastructure that the licence holder has in place to comply with licence conditions – these are collectively known as ‘appropriate measures’
• the responsiveness of the licence holder and site staff
• where third party intervention, or unexpected circumstances, have lessened the effect of an incident caused by a breach of a licence condition – for example, a sudden rain downpour shortly after a failure to meet compensation flow requirements may reduce the environmental impact of a breach
• the impact on the Environment Agency’s ability to regulate – for example considering  public interest factors and regulatory precedents

The completed inspection form explains how the Environment Agency has taken these factors into account when deciding the risk category for the reasonably foreseeable impact.

Where there is actual harm to the environment the Environment Agency may also record a non-compliance as an incident. Incident categorisation is based on actual harm to the environment. Incident categorisation may not be the same as the compliance risk category.

Principle 4: assess the root cause of the original non-compliance

A non-compliance can often be the symptom of a wider underlying problem. Compliance assessments show the risk category for the root cause of a non-compliance. The Environment Agency records the root cause of the non-compliance on the inspection form to help prevent breaches in the future.

Principle 5: suspend scores

Principle 5 does not apply to abstraction and impounding licences.

Licence non-compliances for abstraction and impounding activities are not given scores that contribute to an annual compliance band for the permitted activity and do not affect licence subsistence fees. As such, principle 5 does not apply to abstraction and impounding licences.

Principle 6: assess the category of non-compliance

There are 4 risk categories of non-compliance. They represent the severity of the reasonably foreseeable impact.

1. A major impact on human health, quality of life or the environment.
2. A significant impact on human health, quality of life or the environment.
3. A minor impact on human health, quality of life or the environment.
4. No impact on human health, quality of life or the environment.

Duration of impact

If there is a link between duration and environmental impact, the Environment Agency considers the length of continuing non-compliance when deciding the risk category. This is because the duration may increase the reasonably foreseeable impact.

For example, a failed compensation release may result in the downstream watercourse being dry for several hours or days. The longer the compensation fails, the greater the stretch of watercourse that is affected downstream, and therefore more likely to damage the environment and impact other water users.

Severity of impact and sensitivity of receptors

The risk category the Environment Agency selects reflects the severity of impact on a receptor. The more sensitive the receptor (due to its proximity or type) the more severe the potential impact will be. The risk category is assessed on a case-by-case basis – reflecting the relative sensitivity of the receptors and the nature and scale of the non-compliance.

Sensitive receptors include:

• protected sites and areas
• protected species
• abstractions with protected rights, for example where an abstractor has a full abstraction licence
• any user of water that does not have a protected right, for example recreational users (known as lawful users)

Explaining the outcomes of a compliance assessment

When the Environment Agency carries out a site visit for a compliance assessment, they ideally like to speak with the licence holder or a representative. This is so they can tell them about any non-compliances.

The Environment Agency will talk to the licence holder or their representative about the actions needed to address the non-compliance and the timeframe for completing them. They will summarise this on the inspection form.

They will tell the licence holder or representative what risk category any non-compliances were given.

If the Environment Agency changes the indicative risk category after these discussions, they record this as a correction on the inspection form with an explanation of why they made the correction.

They record non-compliance found during an assessment on the inspection form with an explanation of:

• what is wrong
• the actions the licence holder must take to correct the problem
• the date the licence holder must complete the actions by
• what enforcement action (if any) the Environment Agency may take in response to the non-compliance

When they give a licence holder a date to complete actions by, the Environment Agency may carry out several inspections during or at the end of this period. This is to check progress and to confirm that the licence holder has addressed the non-compliance. They record progress updates and satisfactory completion of actions on the inspection form.

The Environment Agency sends the inspection form to the licence holder summarising the results of a compliance assessment. This is usually within 14 days of the assessment, even when non-compliances have not been identified. In exceptional circumstances, it may take longer than 14 days to send the licence holder the inspection form. Where this happens, they will let the licence holder know the reason for the delay and the date the form will be sent.

A licence holder can challenge any part of the inspection form by writing to the local Environment Agency office within 28 days of receipt. If the issue cannot be resolved by the local office, a licence holder may request an appeal of the regulatory decision by emailing enquiries@environment-agency.gov.uk within 14 days of receipt of the outcome.

How the Environment Agency uses data from a compliance assessment

Regulating for people, the environment and growth

The Environment Agency publishes annual reports which include information about:

• emissions from the businesses they regulate
• the number of serious pollution incidents and sectors responsible
• compliance with environmental permits
• how they support the businesses they regulate
• the enforcement action they take when a business does not comply

Privacy notice: how the Environment Agency uses your personal data

The Environment Agency runs the Compliance Classification Scheme (CCS). They use CCS to store all permit and licence breaches they find.

They are the data controller for these services. A data controller decides how and why personal information is processed.

The Environment Agency’s personal information charter explains your rights and how they deal with your personal information.

Personal data they need

The personal data the Environment Agency processes about you includes your:

• name
• job title
• address
• information on permitted activities

They are allowed to process your personal data because they have official authority as the environmental regulator. The lawful basis for processing your personal data is to perform a task in the public interest that is set out in law.

They use your personal data to process and reference their compliance assessments.

What they do with your personal data

The information from their compliance assessments is stored on their CCS database. Inspection forms (sent to abstraction and impounding licence holders following a compliance assessment) are stored on their document management system.

How long they keep your personal data

They keep your personal data for 7 years after the end of your licence. The end of your licence means it has been surrendered (cancelled), transferred or revoked (taken away). This is their standard information retention policy.

Where they process and store your personal data

They store and process your personal data on their servers in the UK.