The Environmental Damage (Prevention and Remediation) (England) Regulations 2015

Made: 19th March 2015

Laid before Parliament: 23rd March 2015

Coming into force: 19th July 2015

The Secretary of State has been designated in respect of the environment for the purposes of section 2(2) of the European Communities Act 1972 (“the 1972 Act”) and makes these Regulations in exercise of the powers conferred by that section, as read with paragraph 1A of Schedule 2 to the 1972 Act, and section 14A(2)(a) of the Interpretation Act 1978 .

These Regulations make provision for a purpose mentioned in section 2(2) of, and paragraph 1A of Schedule 2 to, the 1972 Act and it appears to the Secretary of State that it is expedient for references to EU instruments in these Regulations (other than references to 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 ) to be construed as references to those instruments as amended from time to time.

PART 1 — Introductory Provisions

Title, commencement and application

1

• (1) These Regulations may be cited as the Environmental Damage (Prevention and Remediation) (England) Regulations 2015 and come into force on 19th July 2015.

• (2) They apply in relation to England and the areas specified in regulation 6.

Interpretation

2

• (1) In these Regulations—

• “activity” means any economic activity, whether public or private and whether or not carried out for profit;

• “baselines” means the baselines from which the breadth of the territorial sea is measured for the purposes of the Territorial Sea Act 1987 ;

• “Directive 2000/60/EC” means Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for Community action in the field of water policy ;

• “Directive 2004/35/EC” means 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;

• “enforcing authority” means the person or body responsible for enforcing these Regulations, in accordance with regulation 10 or 11;

• “local authority” means (except in relation to a local authority in Wales)—where there is a unitary authority for a local government area, that authority;where there is not a unitary authority—in a metropolitan district, the council of that district;in a non-metropolitan county, the district council;in each London borough, the council of that borough;in the City of London, the Common Council;on the Isles of Scilly, the Council of the Isles of Scilly;

• “marine waters” means waters classified as marine waters pursuant to Directive 2008/56/EC of the European Parliament and of the Council establishing a framework for Community action in the field of marine environmental policy ;

• “natural habitat” means—the habitats of species mentioned in Article 4(2) of, or Annex I to, Council Directive 2009/147/EC on the conservation of wild birds or listed in Annex II to Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora ;the natural habitats listed in Annex I to Council Directive 92/43/EEC; andthe breeding sites or resting places of the species listed in Annex IV to Council Directive 92/43/EEC;

• “natural resources” means—a protected species;a natural habitat;a species or habitat on a site of special scientific interest by reason of which the site has been notified under section 28 of the Wildlife and Countryside Act 1981 ;water; andland;

• “operator” means the person who operates or controls an activity, including the holder of a permit or authorisation relating to that activity, or the person registering or notifying an activity for the purposes of any enactment;

• “protected species” means a species of a kind mentioned in Article 4(2) of Council Directive 2009/147/EC or listed in Annex I to that Directive or Annexes II and IV to Council Directive 92/43/EEC;

• “remediation notice” means a notice served in accordance with regulation 20(2);

• “responsible operator” means the operator in relation to an activity that has caused environmental damage;

• “the Scottish zone” has the meaning it has in the Scotland Act 1998 ;

• “services” means the functions performed by natural resources which benefit other natural resources or the public;

• “site of special scientific interest” has the same meaning as in the Wildlife and Countryside Act 1981 .

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

• (2) Unless otherwise defined in these Regulations, expressions used in Directive 2004/35/EC have the same meaning in these Regulations.

References to EU instruments

3

• (1) For the purposes of these Regulations, a reference in any EU instrument referred to in these Regulations—

• (a) to the “European Union” or otherwise to the area to which that instrument applies is to be taken to include the United Kingdom;

• (b) to a “Member State” is to be taken to include the United Kingdom.

Meaning of “environmental damage”

4

• (1) These Regulations apply in relation to the prevention and remediation of environmental damage; and environmental damage is damage, as specified in this regulation, to—

• (a) a protected species or natural habitat, or a site of special scientific interest;

• (b) surface water or groundwater;

• (c) marine waters; or

• (d) land.

• (2) Environmental damage to a protected species or natural habitat or a site of special scientific interest means damage of a kind specified in Schedule 1.

• (3) Environmental damage to surface water means damage to a surface water body classified as such pursuant to Directive 2000/60/EC such that—

• (a) a biological quality element listed in Annex V to that Directive,

• (b) the level of a chemical listed in the legislation in Annex IX or a chemical listed in Annex X to that Directive, or

• (c) a physicochemical quality element listed in Annex V to that Directive,

changes sufficiently to lower the status of the water body in accordance with Directive 2000/60/EC (whether or not the water body is in fact reclassified as being of lower status).

• (4) Environmental damage to groundwater means any damage to a body of groundwater such that its conductivity, level or concentration of pollutants changes sufficiently to lower its status for the purposes of Directive 2000/60/EC (and, in relation to pollutants, for the purposes of Directive 2006/118/EC of the European Parliament and of the Council on the protection of groundwater against pollution and deterioration ), whether or not the body of groundwater is in fact reclassified as being of lower status.

• (5) Environmental damage to marine waters means damage to marine waters such that their environmental status is significantly adversely affected.

• (6) Environmental damage to land means contamination of land by substances, preparations, organisms or micro-organisms, where that damage results in a significant risk of adverse effects on human health.

Environmental damage to which these Regulations apply

5

• (1) These Regulations apply in relation to environmental damage if it is caused by an activity mentioned in Schedule 2.

• (2) In the case of environmental damage to a protected species or natural habitat or a site of special scientific interest, these Regulations also apply in relation to environmental damage caused by any other activity if the operator—

• (a) intended to cause environmental damage; or

• (b) was negligent as to whether environmental damage would be caused.

Areas of application

6

• (1) Environmental damage is relevant for the purposes of these Regulations only if the damage, of a type specified in the first column of the following table, occurs in an area specified in the second column of that table in relation to damage of that type.

¹ These areas do not include areas that form part of Northern Ireland, Scotland or Wales or the territorial sea adjacent to the Isle of Man, Jersey or Guernsey; and for these purposes—	¹ These areas do not include areas that form part of Northern Ireland, Scotland or Wales or the territorial sea adjacent to the Isle of Man, Jersey or Guernsey; and for these purposes—
(i) “Wales” has the meaning given by section 158(1) of the Government of Wales Act 2006 ;	(i) “Wales” has the meaning given by section 158(1) of the Government of Wales Act 2006 ;
(ii) “Scotland” has the meaning given by section 126(1) of the Scotland Act 1998; and	(ii) “Scotland” has the meaning given by section 126(1) of the Scotland Act 1998; and
(iii) “Northern Ireland” has the meaning given by section 98 of the Northern Ireland Act 1998 .	(iii) “Northern Ireland” has the meaning given by section 98 of the Northern Ireland Act 1998 .
Type of damage	Area in which these Regulations apply
Damage to surface water or groundwater	England and all waters up to one nautical mile seaward from the baselines in England.
Damage to marine waters	All marine waters within any of the following descriptions—
Damage to marine waters	(a) marine waters up to one nautical mile seaward from the baselines in England so far as not already addressed as damage to surface water or groundwater;
Damage to marine waters	(b) marine waters from one nautical mile seaward from the baselines in England, extending to the outermost reach of the area where the United Kingdom exercises jurisdictional rights, in accordance with UNCLOS;
Damage to marine waters	(c) marine waters beyond 12 nautical miles from the baselines in Wales, and marine waters beyond 12 nautical miles from the baselines in Northern Ireland, in each case extending to the outermost reach of the area where the United Kingdom exercises jurisdictional rights, in accordance with UNCLOS;
Damage to marine waters	(d) marine waters up to the limit of the exclusive economic zone which lies within the Scottish zone, or which lies outside the Scottish zone, but is 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.
Damage in a site of special scientific interest	England
Damage to a protected species or natural habitat	England, the seabed out to the limits of the continental shelf¹, and anywhere within marine waters, other than the seabed, out to the limits of the exclusive economic zone¹.
Damage to land	England

• (2) In the table in paragraph (1)—

• “the continental shelf” means the areas designated by Order in Council under section 1(7) of the Continental Shelf Act 1964 ;

• “the exclusive economic zone” means the areas designated by the Exclusive Economic Zone Area Order 2013 ; and

• “UNCLOS” means the United Nations Convention on the Law of the Sea, which opened for signature on 10th December 1982 .

Other legislation

7

• (1) These Regulations are without prejudice to any other enactment concerning damage to the environment.

• (2) They are without prejudice to the right of an operator to limit liability in accordance with the Convention on Limitation of Liability for Maritime Claims 1976 .

Exemptions

8

• (1) These Regulations do not apply in relation to—

• (a) damage that occurred before 1st March 2009 (but see also paragraph (2));

• (b) damage that occurs or occurred after that date, or is or was threatened after that date, but is caused by an incident, event or emission that took place before that date; or

• (c) damage caused by an incident, event or emission that takes or took place after that date, if it derives from an activity that took place and finished before that date.

• (2) Paragraph (1) applies in relation to damage to marine waters as if, in sub-paragraph (a), for “1st March 2009” there were substituted “ 19th July 2015 ”.

• (3) These Regulations do not apply in relation to environmental damage caused by—

• (a) an act of terrorism;

• (b) an exceptional natural phenomenon, provided the operator of the activity concerned took all reasonable precautions to protect against damage being caused by such an event;

• (c) activities the sole purpose of which is to protect against natural disasters;

• (d) an incident in respect of which liability or compensation falls within the scope of—

• (i) the International Convention of 27th November 1992 on Civil Liability for Oil Pollution Damage ;

• (ii) the International Convention of 27th November 1992 on the Establishment of an International Fund for Compensation for Oil Pollution Damage ; or

• (iii) the International Convention on Civil Liability for Bunker Oil Pollution Damage 2001 ;

• (e) activities the main purpose of which is to serve national defence or international security;

• (f) radioactivity from an activity covered by the Treaty establishing the European Atomic Energy Community or caused by an incident or activity in respect of which liability or compensation falls within the scope of the Paris Convention of 29th July 1960 on Third Party Liability in the Field of Nuclear Energy and the Brussels Supplementary Convention of 31st January 1963; or

• (g) any activity carried out in the course of commercial sea fishing if all legislation relating to that fishing was complied with.

• (4) These Regulations only apply to environmental damage caused by pollution of a diffuse character if it is possible to establish a causal link between the damage and specific activities.

Exclusion from damage to water

9

• (1) Where all the conditions in paragraph (2) are satisfied, damage to water does not include—

• (a) damage caused by new modifications to the physical characteristics of a surface water body;

• (b) an alteration to the level of a body of groundwater pursuant to Directive 2000/60/EC; or

• (c) deterioration from high status to good status of a body of surface water resulting from new sustainable human development activities where Article 4(7) of that Directive is complied with.

• (2) The conditions are that—

• (a) all practicable steps are taken to mitigate the adverse impact on the status of the body of water;

• (b) the reasons for these modifications or alterations are specifically set out and explained in the river basin management plan required under Article 13 of Directive 2000/60/EC and the objectives are reviewed every six years;

• (c) the reasons for these modifications or alterations are of overriding public interest, or the result of the damage is outweighed by the benefits of the new modifications or alterations to human health, to the maintenance of human safety or to sustainable development; and

• (d) the beneficial objectives served by those modifications or alterations cannot, for reasons of technical feasibility or disproportionate cost, be achieved by other means.

Enforcing authorities under the Environmental Permitting (England and Wales) Regulations 2016

10

• (1) These Regulations are to be enforced in accordance with this regulation if the damage is caused by an activity that requires a permit or registration under the Environmental Permitting (England and Wales) Regulations 2016.

• (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) If the local authority is responsible for granting the permit—

• (a) Part 2 is to be enforced by a local authority;

• (b) Part 3 is to be enforced by—

• (i) the local authority, if the damage is to land;

• (ii) the Environment Agency, if the damage is to surface water or groundwater;