Clause 9 - Rights to abstract for drainage purposes, etc

Water Bill [Lords] – in a Public Bill Committee at 3:45 pm on 16 September 2003.

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Photo of Bill Wiggin Bill Wiggin Shadow Minister (Environment, Food and Rural Affairs) 3:45, 16 September 2003

I beg to move amendment No. 18, in

clause 9, page 9, leave out lines 34 to 43.

The subject of the amendment has probably already been dealt with, as it refers to the internal drainage boards and their ability to move water from one place to another. My main fear about subsection (2) related to whether water had been used a great deal. That has already dealt with, for which I am grateful.

I want to take the opportunity to heap praise on the internal drainage boards, especially the Lugg drainage board, which does a tremendous job in keeping my constituency as dry as possible, particularly in the winter. I must say, however, that that board feels especially hard done by by the Government and the Environment Agency.

Sitting suspended for a Division in the House.

On resuming—

Photo of Bill Wiggin Bill Wiggin Shadow Minister (Environment, Food and Rural Affairs) 4:15, 16 September 2003

The matter to which amendment No. 18 relates has now been covered. I understand that a drainage board can carry out abstraction provided that it moves water only within its own area. It can therefore top up certain parts of its inland water at the expense of others. Will the Minister confirm that that is covered earlier in the Bill? If it is, I shall be happy to withdraw the amendment.

Photo of Elliot Morley Elliot Morley Minister of State (Environment and Agri-Environment), Department for Environment, Food and Rural Affairs

I am happy to confirm that. Moving water about within an IDB area will not be subject to licensing control. Abstraction will be subject to that control, as it is now, as will the transfer of water from one area to another. We have confidence in the management abilities of the IDBs, and we are trying to minimise bureaucracy.

Photo of Bill Wiggin Bill Wiggin Shadow Minister (Environment, Food and Rural Affairs)

I am grateful for that confirmation. I have already heaped praise on the IDBs. I believe that they are threatened by regional drainage boards, but I suspect that we will discuss that later in our consideration of the Bill. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Ms Sue Doughty Ms Sue Doughty Liberal Democrat, Guildford

I beg to move amendment No. 182, in

clause 9, page 10, line 11, leave out 'serious' and insert 'significant'.

Photo of Sir David Amess Sir David Amess Conservative, Southend West

With this it will be convenient to discuss the following amendments: No. 183, in

clause 9, page 10, line 13, leave out 'serious' and insert 'significant'.

No. 202, in

clause 29, page 34, line 11, leave out 'serious' and insert 'significant'.

Photo of Ms Sue Doughty Ms Sue Doughty Liberal Democrat, Guildford

I shall not detain the Committee for long, unless we decide to rush to a vote. The aim of the amendment is to try to define what the Government mean by ''serious damage''—a loose term. I am concerned that someone may claim that certain damage is ''serious'', and that the matter will go to law, which would be an unhappy event. Solicitors will become rich discussing what is serious and what is not.

In reality, we quite understand the need for emergency abstraction, especially as defined in new subsection (2A)(a), as occurring when there is a risk

''to a human being of death, personal injury or harm to health''.

It is clear that that is serious. However, what is ''serious damage to works'' or

''serious damage to the environment''?

Will the Minister clarify what that means? We believe that the replacement of ''serious'' with ''significant'' would help the legal definition, but these are strong powers, which must have some justification. We would welcome his response.

Photo of Elliot Morley Elliot Morley Minister of State (Environment and Agri-Environment), Department for Environment, Food and Rural Affairs

I am happy to deal with that point. I appreciate that the hon. Lady seeks clarification of the term ''serious damage'', but amendments Nos. 182 and 183 would relax the test that applies to abstraction, whereas amendment No. 202 would tighten it. The two groups of amendments do two opposite things. I am

sure that that was not the intention, as amendment No. 182 is a probing amendment.

The Environment Agency, in conjunction with English Nature and DEFRA, is currently working on formal guidance on the interpretation of these terms according to the circumstances where each is used. That will have to go through consultation. I can give the hon. Lady an idea of the time scale. We plan to have the guidance available early in 2004 and we intend to consult on it towards the end of that year. We understand the points that the hon. Lady makes. The guidance will have to go through the proper consultation procedure because there will be a lot of interest in how it will apply and how it will be interpreted. That is why we are drawing up the guidelines now. There will be an opportunity to discuss them.

Photo of Ms Sue Doughty Ms Sue Doughty Liberal Democrat, Guildford

I thank the Minister for those comments. This is the sort of information that we are seeking. We need a much clearer definition of the sort of damage that would require emergency action. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Bill Wiggin Bill Wiggin Shadow Minister (Environment, Food and Rural Affairs)

I beg to move amendment No. 19, in

clause 9, page 10, line 20, after 'notice', insert 'within five days'.

I simply seek to ensure that the Environment Agency reacts with the same speed as the person who is abstracting during an emergency. Under the Bill as drafted, someone undertaking an emergency abstraction must give notice to the Environment Agency within five days. It seems only reasonable that if the Environment Agency decides that it is not an emergency it should give him notice of that within five days. It is an equitable amendment and I hope that the Minister will adopt it forthwith.

Photo of Elliot Morley Elliot Morley Minister of State (Environment and Agri-Environment), Department for Environment, Food and Rural Affairs

There is a slight problem with the amendment, which I will be happy to explain to the Committee. I understand what the hon. Gentleman is saying. He proposes that once an abstractor has informed the agency of an emergency extraction, the agency must give notice to the abstractor that the abstraction should not or should no longer take place for emergency purposes within five days. The amendment would restrict when the agency can make a decision about when an emergency abstraction should not or should no longer be allowed. It would also appear to restrict the abstractor if the notice had to be provided from the time he informs the agency of the emergency abstraction. That would allow an emergency abstraction up to a maximum of five days.

The clause applies when there is a life-threatening situation or one that would cause damage, when people who do not have a licence have to take immediate action to extract, such as when pumping out. That emergency abstraction, for whatever reason, may need to continue for longer than five days. The clause allows the agency discretion over when it would serve such a notice in the light of the particular circumstances. In some cases the emergency abstraction would have to be limited to one or two days. In other cases it might need to be for a longer period. I know that it is not the hon. Gentleman's

intention, but the amendment would unduly restrict the flexibility that the clause allows in emergencies.

Photo of Bill Wiggin Bill Wiggin Shadow Minister (Environment, Food and Rural Affairs)

I am grateful to the Minister for that explanation. I saw it coming. I do not agree that the amendment would restrict the abstraction to five days: it would restrict it to 10 days. The person carrying out the emergency abstraction can give notice on the fifth day and the Environment Agency would also have to give notice on its fifth day, so 10 days' extraction could take place. However, this does not relate exclusively to the risk to human health. There is serious damage to the environment. This is similar to what we dealt with earlier. One of the arguments that the Minister used was that we need to be quick when dealing with emergencies involving the environment, and particularly human health—death, personal injury and harm to health. I envisage situations in which a churchyard may be flooded. I hoped that the Minister would have a few examples of his own, but I do see that the proposal would restrict the agency.

If the Minister can convince me that people at the agency will not pursue emergency abstractors because they have not given them notice that the abstraction is not lawful, it will be right to withdraw the amendment. Otherwise, I hope that he will take it on board that the Environment Agency must be limited by some period as to what notice it gives. Five days may be inappropriate. I chose five days because that is the notice period that the agency has itself set in the Bill, but if that period is not appropriate, perhaps we can, by order, have a different period. If serious damage is being done, we need to take the notice period seriously, too.

Photo of Elliot Morley Elliot Morley Minister of State (Environment and Agri-Environment), Department for Environment, Food and Rural Affairs

I can certainly assure the hon. Gentleman that I have every confidence that the Environment Agency will use its judgment in the particular circumstances. That is why we are allowing it some discretion over how it applies the provision and how it deals with situations.

Photo of Bill Wiggin Bill Wiggin Shadow Minister (Environment, Food and Rural Affairs)

I expected the Minister to say that, too. I am not completely comfortable with it, and we may have to revisit the issue, but I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Robert Key Robert Key Conservative, Salisbury

I beg to move amendment No. 163, in

clause 9, page 10, line 32, leave out 'warping'.

Unless we amend the Bill along the lines that I suggest, or the Minister suggests an alternative, I fear that we are about to make a mistake in the legislation. ''Warping'' appears to be a local dialect term that is not used throughout the country. It is unlikely to have an established legal basis. It certainly has different meanings in different parts of the country. What is down in the Bill as ''warping'' is known in my river catchment area as flooding. Further downstream on the Hampshire Avon, in the tidal part by the sea, the term ''warping'' is used, but it refers to tidal flooding, which is different from what we are discussing. I understand that in the Minister's constituency ''warping'' means digging out the silt from channels

and putting it on the land, which is not what I understand by the term ''drowning''.

The Department has produced a definition in the explanatory notes to the Bill. Paragraph 53 on page 12 states that warping is

''the abstraction of water which contains silt onto agricultural land so that the silt can deposit and act as a fertiliser''.

However, that is only part of the story, as I shall explain.

There was a discussion in the other place about drowning. A distinction was drawn between fortuitous warping and managed warping. Fortuitous warping happens when a river overflows in a flood and deposits. Managed warping happens when we impound water and control it before putting it back into the river that we took it out of in the first place.

I had better declare my interests, none of which are financial, other than being a disbenefit to me. I am a subscribing member of the Harnham Water Meadows Trust in Salisbury, and I am a member of the council of Salisbury cathedral, which owns the Harnham water meadows. In other words, I am intimately familiar with water meadows and have been since I started paddling in them in Salisbury at the age of about 2. I have been ankle high to a crayfish in water meadows all that time. However, we are not talking only about Harnham water meadows, Woodford Valley water meadows, the Chalke Valley water meadows or elsewhere on the Hampshire Avon. We are talking about a feature of the watery landscape of England, from north to south and east to west.

If we do not amend the Bill, we will damage the prospects for existing systems of drowning or warping and discourage new projects. After all, a licence application will cost £100, but the annual fee is dependent on the volume. That is hugely significant. The volume of water, which depends largely on the weather, can vary hugely. A watercress grower in my constituency told me only yesterday that he has a licence for some 1.128 million gallons a day. As much as 4 million gallons of water a day flows through the stream past his watercress beds, but it can drop in the summer to 200,000 gallons a day. Then, water has to be lifted by pumps to keep his business going. It is all very well saying, ''Let's licence it,'' but the cost implications could be substantial. What would it mean for a heritage charity seeking to restore water meadows in a wet year?

There has been a huge revolution in the management of water basins in my lifetime. I regret to say that it has not been a glorious revolution. Since the era of water bailiffs, drowners and weed-cutting machines, we have completely changed our philosophy. In my childhood on the Hampshire Avon, the philosophy was all about keeping the water back, conserving it, using it and doing all that one could with it before it ran down to the sea. We therefore had water meadows and systems of weirs and sluices.

The philosophy now is to get the water off the land and into the sea as quickly as possible. The sluices

have been taken out, the weirs have been dismantled, and now—this is where we are about to make another mistake—it is impossible to flood the water meadows when the river is low, because one cannot impound the water. If it is not possible to impound the water, why are we talking about charging an abstraction fee? That is why this is a rather dangerous piece of legislation.

When it comes to the debate about the historic water meadows, Salisbury has made a famous major contribution to the landscape. I am talking about the Constable water meadows, for goodness' sake. The problem is that DEFRA is, on the one hand, busy giving grants of public money to encourage heritage organisations to restore water meadows and sluices while, on the other, the legislation says that we will now tax them at the other end by introducing licences and applications. That simply does not make sense. The impact of those provisions was recognised by the only Member of the other place, during their debate on the subject, who really knew what he was talking about, my fellow Wiltshireman Lord Carter, who raised the problem of there being no more drowners or sluices.

That is important, because, as I said, in the interest of flood prevention most of the old weirs and sluices were removed to permit the easier release of flood water in times of high rainfall. We are talking about the chalk landscape of England, and we need to make a huge distinction between springs and the run-off of rainfall and the rising of the water table. They are completely different, and they happen at different times. We can have a fortnight of cloudburst, and the water will run off, but if the water level rises because of the springs, we will find 10 days later that the springs have risen and the villages are flooded. We must be precise about what we mean.

The trouble with removing all the sluices is that, at times of low water levels, we simply cannot retain sensible water levels all the way up the main streams, and therefore cannot control the level of the river as we used to. The hatches have gone in the Harnham Mill area of the Harnham water meadows, the controls on the Nadder at the old Fisherton mill have gone, and also those on the Avon at Normanton. There is a big impact on the whole river catchment area. If we were discussing—dare I mention it—the water framework directive and catchment management, the very thing that we are trying to discourage would encourage better management.

There is a huge problem, but there are answers. In the other place, Baroness Young of Old Scone suggested in Grand Committee, on 1 April at page 103, that there might be '''meadow-explicit' agreements.'' The wildlife trusts have also suggested that a transfer licence could be used to impose less onerous conditions when warping—let us call it that for the sake of argument—is concerned.

It is important that we do not all roll over and say that this matter is unimportant because we are not talking about a lot of water or money. We have seen such a huge revolution in the attitude to water management in the catchment of the Hampshire Avon in my lifetime and, although I may be pushing up the daisies when it happens, I suspect that the

pendulum will swing back and that we will return to managing water in a way that we have now apparently lost.

We are not just talking about silt fertilising the grass or about flood control; there is another important benefit of water meadows, which was not mentioned in the other place. They can ameliorate the temperature of the ground on which the new grass grows. If a field is flooded with water, it will not freeze, so the grass will provide what farmers call an early bite for ruminants. We should not sniff at that. The old way of working is with natural fertiliser. The land level is built up by a small amount and flooded to a depth of a quarter or half an inch of water, which flows along the ridges and down the gullies back into the river. That provides a natural fertiliser and allows silt to build up the ground and warmth to encourage the grass.

Photo of Bill Wiggin Bill Wiggin Shadow Minister (Environment, Food and Rural Affairs) 4:30, 16 September 2003

There is another advantage, which is that the silt stays on the fields, rather than going into the watercourses and encouraging the growth of waterweed during the later part of the season. That is a vital part of maintaining the watercourses and preventing the overgrowth of weed, which is currently blamed on farmers allowing nitrogen to seep into the water.

Photo of Robert Key Robert Key Conservative, Salisbury

My hon. Friend is right, but the advantages do not stop there. Warping takes out of the water a lot of other undesirable compounds, including most notably hormones from the pill. Studies have shown that the pill has had a dramatic impact on our watercourses and fish life. It de-sexes mayflies and other insects, which do not breed. That in turn affects fish. Warping or drowning—whatever we eventually decide to call it—can have a great impact.

I ask the Minister to pause and be absolutely sure that we all agree about the definition of a word that has different meanings in different parts of the country. It has a greater impact than I suspect a lot of people understand. If I sound passionate in my advocacy of this cause, it is because I am passionate. I have observed closely the river basin around Salisbury—a city that was founded at the confluence of five rivers—and the basin is a crucial part of what only last summer Country Life called the most beautiful view in the world.

Photo of Mr Simon Thomas Mr Simon Thomas Plaid Cymru, Ceredigion

A lot of what the hon. Gentleman said chimed with my experiences in an important part of my constituency—the SSSI along the Dyfi estuary. That water meadow is protected as a bird reserve for the Royal Society for the Protection of Birds and part of a special area of conservation. I confess that before I had read the Bill, I did not have a clue what warping was—I thought that it was something to do with the Starship Enterprise—but there cannot be anything more warped than a fish that takes in hormones from the human body. That is perhaps another definition of warping.

I recently visited the restoration of water meadows along the Dyfi estuary, which aims to restore the area's bird population, particularly that of the lapwing. I saw the immense work that had been done with spreading silt on the land and preparing the trenches for the

waterways to maintain dragonflies and the myriad insects that support the bird population. A huge amount of work had gone in to enable the RSPB to grow the lapwing population, which has doubled almost every year in the past few years. All that work has been done in precisely the way that the hon. Gentleman described: by managing the water resources.

Having heard the hon. Gentleman and having had the experience of visiting the site, I would like the Minister to give an assurance both that such voluntary and conservation work will not be made more difficult or more expensive by the Bill, and that he will consider an exemption for the restoration of water meadows, which was mentioned in the other place. I am talking about tidal water meadows, which are somewhat different from the Salisbury experience, but the same principle applies, because at the end of the day we are dealing with the management of fresh water and streams, and so on.

The hon. Gentleman made a good point, and some interesting and pertinent questions have been raised.

Photo of Elliot Morley Elliot Morley Minister of State (Environment and Agri-Environment), Department for Environment, Food and Rural Affairs

I enjoyed the enthusiasm of the hon. Member for Salisbury (Mr. Key) for water meadows, which was clear from his knowledge about warping. He will know that I have an interest in such issues myself; indeed, as I said, in my own part of the world, warping was an important part of land reclamation. It involved dredging and also inundation, in relation to the silt on the land. The process is well known and understood.

My officials, who as ever are extremely well prepared, have a definition from the Oxford English dictionary, so that we know exactly what we are talking about. The concise Oxford dictionary says that to warp is to

''silt over (land) with warp, by flooding'',

whereas a water meadow is

''a meadow periodically flooded by stream or river''.

I understand the point that the hon. Gentleman made, but I assure him that I of all people do not want to see restrictions in the Bill that would hinder the management of water meadows. We have few enough water meadows in this country, and they are an important environmental and ecological resource. The intention behind the clause is to bring all significant abstractions of water under control.

I accept that, generally speaking, warping would not involve abstraction from rivers in the way that we would understand the term—it generally involves inundation, and the use of sluice gates and flooding. Warping, or controlled inundation of land, is often done as part of flood measures. Land is often allowed to flood during the winter peaks, when there are high levels of water in the rivers, so they overflow into water meadows and flood plains. Sometimes the process is natural and sometimes it is deliberate. Where it is natural, it is often a cycle of management, similar to washes, for instance, which were used traditionally. The land floods in the winter, cattle are put on for

grazing in the spring and summer, and they are taken off again in the winter.

Those practices will not come under abstraction control, because they are not under abstraction control now and there is nothing in the Bill that would change those patterns. I can therefore give the hon. Member for Salisbury an assurance in relation to his circumstances. As far as I can see, abstraction licences will not apply to the Salisbury water meadows, unless abstraction from the river is applied.

It might be useful if I give the hon. Gentleman some written details in relation to the circumstances of the case that he has made on what would and would not apply, so that we are clear. It is not our intention, generally speaking, to interfere with such management, but it is our intention to bring major extractions from river systems under control. In some cases, warping may fall within that category, depending on the circumstances.

Photo of Robert Key Robert Key Conservative, Salisbury

That is a generous suggestion from the Minister. May I ask him to have a word with his ministerial colleague, the hon. Member for Exeter (Mr. Bradshaw)? He visited the water meadows last month and can give him a first-hand, insider's guide.

I am grateful to the Minister, and it would be churlish of me not to withdraw the amendment. I will study carefully what he has said and consult the people involved in this matter. We may need to revisit it on Report, but for now I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Sir David Amess Sir David Amess Conservative, Southend West

With this it will be convenient to discuss the following:

Amendment No. 20, in

clause 9, page 10, line 39, at end add 'including crop rotation'.

Photo of Elliot Morley Elliot Morley Minister of State (Environment and Agri-Environment), Department for Environment, Food and Rural Affairs

The amendment removes the change to section 29 of the Water Resources Act 1991 which was introduced through an amendment in the other place. That amendment added a new subsection, which appears to allow the Environment Agency to decide whether abstractions for trickle irrigation should be subject to licensing. However, the decision to include trickle irrigation has already been taken and is given effect through what will become subsection (5) of section 29.

We understand that the intention behind the amendment was to ensure that, when the agency takes individual licensing decisions, it must consider how long trickle irrigation has been practised. If that was the intention, we have no problem—it is not an unreasonable position to take. When making transitional regulations that will bring trickle irrigation under licence control, we can include a requirement that the agency considers the history of the irrigation scheme.

Amendment No. 20 seeks to ensure that, as well as considering the history of such a scheme, the agency will also take account of periods when a farmer has

not abstracted water because of crop rotation. We understand that there may be gaps in the irrigation system because of the rotation used by individual farmers. That will form part of the agency's consideration of the history of a scheme, which will be set out in the transitional regulations.

I hope that, given that we have clarified our intentions to make transitional arrangements for introducing trickle irrigation licensing, the hon. Member for Leominster will support our amendment and withdraw his own.

Photo of Bill Wiggin Bill Wiggin Shadow Minister (Environment, Food and Rural Affairs)

I was delighted with the Minister's proposals, although trickle irrigation is not mentioned in proposed new subsection (5)(a) or (b). Only irrigation is mentioned, which is the fundamental problem.

Although I am grateful that the agency will consider both crop rotation and the length of time for which abstraction has been practised, a further problem is that an unused licence will be valid for only four years. The crop rotation referred to in my amendment could be anything up to seven years. I suspect that if the Government license genetically modified crops, that will affect crop rotation. Some types of crop—such as barley grown after wheat—will be sensitive to genetic changes so farmers may be required to grow non-related crops, such as potatoes, in the meantime. I understand that that history will be considered only over four years. If that period is extended to seven years or longer, that might help those farmers who irrigate.

The Minister slipped one other thing into the debate, which was the word ''trickle''. As I pointed out, trickle irrigation is not mentioned in proposed new subsection (5)(a) or (b). Trickle irrigation is not the only kind of irrigation. Some irrigation is perfectly acceptable if there is plenty of water, and that should also be considered. If the Minister is happy to agree that we are not exclusively discussing trickle irrigation, I will be more comfortable allowing my amendment to fall.

Photo of Elliot Morley Elliot Morley Minister of State (Environment and Agri-Environment), Department for Environment, Food and Rural Affairs

I did not want inadvertently to suggest that amendment No. 20 was only about trickle irrigation, but the measure applies to that in the same way as to other irrigation methods. It is the history of the irrigation scheme that is important, whichever irrigation method applies. We would expect the agency to take account of the periods when a farmer has not extracted water for crop rotation. Any periods of non-use in the past may be considered, and the consideration is not limited to four years. Individual farmers will be able to make that particular case.

Photo of Bill Wiggin Bill Wiggin Shadow Minister (Environment, Food and Rural Affairs)

As I understand it, that will be part of the Environment Agency's guidelines, which is why it does not need to be in the Bill.

I would have been sorely tempted to put my amendment to the vote, but the Minister has satisfied my requirements, for which I am grateful.

Amendment agreed to.

Clause 9, as amended, ordered to stand part of the Bill.