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The Environmental Damage (Prevention and Remediation) (England) (Amendment) Regulations 2017

S.I. 2017/1177 · Made 23 November 2017

Original text. legislation.gov.uk does not revise statutory instruments, so later amendments are not shown here. Changes made to it are listed under each provision when known.

Environmental Protection, England

Made 23rd November 2017

Laid before Parliament 30th November 2017

Coming into force 1st April 2018

The Secretary of State makes these Regulations in exercise of the powers conferred by section 2(2) of the European Communities Act 1972f1.

The Secretary of State is a Minister designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to the environmentf2.

Annotations to the whole text

Footnotes

f1

1972 c. 68; section 2(2) was amended by section 27(1)(a) of the Legislative and Regulatory Reform Act 2006 (c. 51) and by Part 1 of the Schedule to the European Union (Amendment) Act 2008 (c. 7).

f2

S.I. 2008/301.

Contents

  1. 1Citation and commencement
  2. 2Amendment of the Environmental Damage (Prevention and Remediation) (England) Regulations 2015
  3. 3Amendment of regulation 2
  4. 4Amendment of regulation 10
  5. 5Amendment of regulation 11
  6. 6Amendment of regulation 20
  7. 7Amendment of Schedule 1
  8. 8Insertion of new Schedule 2A
  9. 9Saving
  10. Signature
  11. Schedule New Schedule 2A
  12. Explanatory note

1Citation and commencement

These Regulations may be cited as the Environmental Damage (Prevention and Remediation) (England) (Amendment etc.) Regulations 2017 and come into force on 1st April 2018.

2Amendment of the Environmental Damage (Prevention and Remediation) (England) Regulations 2015

The Environmental Damage (Prevention and Remediation) (England) Regulations 2015f1 are amended as follows.

3Amendment of regulation 2

In regulation 2(1)—

(a)

in the definition of “local authority”, after “means” insert “(except in relation to a local authority in Wales)”;

(b)

after the definition of “site of special scientific interest” insert—

  • ““the Welsh zone” has the same meaning as in section 158(1) of the Government of Wales Act 2006f1.”.

4Amendment of regulation 10

(1)

Regulation 10 is amended as follows.

(2)

For paragraph (2) substitute—

“(2)

If the Environment Agency or the Natural Resources Body for Wales is responsible for granting the permit, these Regulations are to be enforced—

(a)

if the damage is to marine waters in the Welsh zone, or to a natural habitat or protected species or a site of special scientific interest in those waters, by the Welsh Ministers;

(b)

in any other case, by the Environment Agency.”.

(3)

In paragraph (3)—

(a)

in the words before sub-paragraph (a), for “the”, in the first place it occurs, substitute “a”;

(b)

in sub-paragraph (b)—

(i)

for paragraph (iv) substitute—

“(iv)

the Secretary of State, if the damage is to marine waters lying beyond 12 nautical miles from the baselines in England, other than any lying in the Welsh zone, or to a natural habitat or protected species or a site of special scientific interest in those waters;”;

(ii)

after paragraph (v) insert—

“(vi)

the Welsh Ministers, if the damage is to marine waters in the Welsh zone, or to a natural habitat or protected species or a site of special scientific interest, in those waters.”.

(4)

After paragraph (3) insert—

“(4)

If a local authority in Wales is responsible for granting the permit, these Regulations are to be enforced—

(a)

if the damage is to marine waters in the Welsh zone, or to a natural habitat or protected species or a site of special scientific interest in those waters, by the Welsh Ministers;

(b)

in any other case, by the Environment Agency.

(5)

In this regulation, “local authority in Wales” means a county council or a county borough council in Wales.”.

5Amendment of regulation 11

(1)

Regulation 11 is amended as follows.

(2)

For paragraph (1) substitute—

“(1)

If the damage caused is caused by an activity that does not require a permit or registration under the Environmental Permitting (England and Wales) Regulations 2016f1, these Regulations are to be enforced in accordance with the provisions set out in the table in Schedule 2A.”.

(3)

In paragraph (2)—

(a)

in the words before the definitions, for “this regulation” substitute “Schedule 2A”;

(b)

in the definition of “specified marine activity”, for paragraph (f) substitute—

“(f)

an activity (other than any specified in paragraphs (a) to (e)) which—

(i)

is carried out in the Scottish zone or in an area outside the Scottish zone, but nearer to any point on the baselines from which the breadth of the territorial sea adjacent to Scotland is measured than to any point on the baselines in any other part of the United Kingdom; and

(ii)

relates to a matter which is a reserved matter by virtue of section D2 in Part 2 of Schedule 5 to the Scotland Act 1998 (oil and gas)f2;

(g)

an activity (other than any specified in paragraphs (a) to (e)) which—

(i)

is carried out in the Welsh zone; and

(ii)

relates to a matter which is a reserved matter by virtue of section D2 in Part D2 of Schedule 7A to the Government of Wales Act 2006 (oil and gas)f3.”.

6Amendment of regulation 20

In regulation 20, before paragraph (1), insert —

“(A1)

Where a responsible operator has received a notice from the enforcing authority under regulation 18, it must without delay identify potential remedial measures in accordance with Schedule 3 and submit them in writing to the enforcing authority for its approval.”.

7Amendment of Schedule 1

In Schedule 1, for paragraph 5 substitute—

“5.
(1)

Damage to a protected site or natural habitat and damage to a site of special scientific interest do not include damage caused by an act expressly authorised by the relevant authorities in accordance with—

(a)

the Conservation (Natural Habitats, &c.) Regulations 1994f1;

(b)

the Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001f2;

(c)

the Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007f3;

(d)

the Conservation of Habitats and Species Regulations 2010f4;

(e)

the Conservation of Habitats and Species Regulations 2017f5;

(f)

the Conservation of Offshore Marine Habitats and Species Regulations 2017f6.

(2)

Damage to sites of special scientific interest does not include, in the case of a site that is not a European site, damage caused by an act expressly authorised by the relevant authorities in accordance with Part 2 of the Wildlife and Countryside Act 1981f7.

(3)

In sub-paragraph (2), “European site” has the same meaning as in regulation 8 of the Conservation of Habitats and Species Regulations 2010f8.”.

8Insertion of new Schedule 2A

After Schedule 2, insert Schedule 2A as set out in the Schedule.

9Saving

In relation to damage caused before the date on which these Regulations come into force, nothing in regulation 7 affects the application of paragraph 5 of Schedule 1 to the Environmental Damage (Prevention and Remediation) (England) Regulations 2015 as it had effect before that date.

Signature

Thérèse Coffey

Parliamentary Under Secretary of State

Department for Environment, Food and Rural Affairs

23rd November 2017

New Schedule 2A

“SCHEDULE 2A

Enforcing authority: activities not requiring a permit or registration under the Environmental Permitting (England and Wales) Regulations 2016

Regulation 11(1)

Type of environmental damage (in bold) and (where limited) area of environmental damageEnforcing authority
(1)

For the definition of “specified marine activity”, see regulation 11(2).

(2)

For the definition of “sea”, see regulation 11(2).
Damage to land.The local authority
Damage to surface water or groundwater.The Environment Agency
Damage to marine waters out to 12 nautical miles from the baselines in England.The Marine Management Organisation
Damage to marine waters beyond 12 nautical miles from (a) the baselines in England, or (b) the baselines in Northern Ireland, extending to the outermost reach of the area where the United Kingdom exercises jurisdictional rights.The Secretary of State
(a) within the Welsh zone; or
  1. (a)

    if the damage was caused by anything done in the course of, or for the purpose of, a specified marine activityf1; or

(b) within the Scottish zone, or outside the Scottish zone, but nearer to any point on the baselines from which the breadth of the territorial sea adjacent to Scotland is measured than to any point on the baselines in any other part of the United Kingdom.
  1. (b)

    in relation to the exercise of powers under Part 2 of these Regulations only, if the damage was caused by an activity relating to a matter which is a reserved matter by virtue of—

    1. (i)

      in the case of marine waters within the Welsh zone, section E3 in Part 2 of Schedule 7A to the Government of Wales Act 2006 (marine transport)f2;

    2. (ii)

      in any other case, section E3 in Part 2 of Schedule 5 to the Scotland Act 1998 (marine transport)f3.

(2)

In a case not falling within paragraph (1)(a) or (b) above—

(a)

where the marine waters are within the Welsh zone, the Welsh Ministers;

(b)

otherwise, the Scottish Ministers.

Damage to a protected species or natural habitat or a site of special scientific interest on land.Natural England
Damage to a protected species or natural habitat or a site of special scientific interest in water, but not in the seaf4.The Environment Agency
Damage to a protected species or natural habitat or a site of special scientific interest on any other part of the continental shelf or in the sea up to the limit of the exclusive economic zone.

(1) The Environment Agency, if the damage is due to an activity authorised by the Environment Agency.

(2) In any other case, the Secretary of State.

”

Explanatory note

(This note is not part of the Regulations)

These Regulations amend the Environmental Damage (Prevention and Remediation) (England) Regulations 2015 (S.I. 2015/810) (“the 2015 Regulations”). They make certain provision to implement Directive 2004/35/EC of the European Parliament and of the Council on environmental liability with regard to the prevention and remedying of environmental damage (OJ No L143, 30.4.2004, p 56) (“Directive 2004/35/EC”).

Regulation 3 inserts a definition of “the Welsh zone”. In this zone, regulations 4 and 5 provide the Welsh Ministers with powers in relation environmental damage, except where the damage is caused by certain specified operations regulated on a United Kingdom-wide basis.

Regulation 6 amends regulation 20 of the 2015 Regulations, to require operators to identify potential remedial measures and submit them to the enforcement authority.

Regulation 7 amends Schedule 1 to the 2015 Regulations to ensure proper transposition of Directive 2004/35/EC. The amendment addresses damage to a site of scientific interest which is also a European site (as defined in regulation 8 of the Conservation of Habitats and Species Regulations 2017 (S.I. 2017/1012)). It provides that damage caused by an act expressly authorised by the relevant authorities in accordance with Part 2 of the Wildlife and Countryside Act 1981 (c. 69) (“the 1981 Act”) is not automatically excluded from the scope of the 2015 Regulations. Such damage will continue to be excluded if the authorisation under the 1981 Act was granted in accordance with legislation transposing Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (OJ No L 206, 22.7.1992, p 7). There is a saving in this regard at regulation 9.

An impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary or public sector is foreseen.