Statutory Instrument 1998 No. 2746

The Groundwater Regulations 1998

(The document as of February, 2008)

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STATUTORY INSTRUMENTS

1998 No. 2746

ENVIRONMENTAL PROTECTION

The Groundwater Regulations 1998

	Made	6th November 1998
	Laid before Parliament	11th November 1998
	Coming into force
	regulations 1 and 16(1)	2nd December 1998
	regulation 23	1st January 1999
	all other provisions	1st April 1999

The Secretary of State for the Environment, Transport and the Regions, the Secretary of State for Wales and the Secretary of State for Scotland, being Ministers designated[1] for the purposes of section 2(2) of the European Communities Act 1972[2] in relation to measures relating to the prevention, reduction and elimination of pollution of water, acting jointly in exercise of the powers conferred on them by section 2(2) of that Act, hereby make the following Regulations:

Citation, extent, commencement and interpretation
    1. - (1) These Regulations may be cited as the Groundwater Regulations 1998 and shall come into force-

(a) in the case of this regulation and regulation 16(1), on 2nd December 1998;

(b) in the case of regulation 23, on 1st January 1999;

(c) in the case of all other provisions, on 1st April 1999.

    (2) These Regulations do not extend to Northern Ireland.

    (3) In these Regulations-

"the Groundwater Directive" means Council Directive 80/68/EEC[3];

"the Agency"-

(a) in relation to England and Wales, means the Environment Agency[4];

(b) in relation to Scotland, means the Scottish Environment Protection Agency[5];

"authorisation" means-

(a) an authorisation under regulation 18 or 19;

(b) a discharge consent within the meaning of section 91(8) of the Water Resources Act 1991[6];

(c) a discharge consent under Part II of the Control of Pollution Act 1974[7]; and

(d) an authorisation under Part I of the Environmental Protection Act 1990[8] in relation to a process designated for central control under section 2 of that Act[9];

"direct discharge" means the introduction into groundwater of any substance in list I or II without percolation through the ground or subsoil;

"groundwater" means all water which is below the surface of the ground in the saturation zone and in direct contact with the ground or subsoil;

"highway drain" means a drain which a highway authority or other person is entitled to keep open by virtue of section 100 of the Highways Act 1980[10];

"indirect discharge" means the introduction into groundwater of any substance in list I or II after percolation through the ground or subsoil;

"pollution" means the discharge by man, directly or indirectly, of substances or energy into groundwater, the results of which are such as to endanger human health or water supplies, harm living resources and the aquatic ecosystem or interfere with other legitimate uses of water;

"road drain" means a drain which a roads authority is obliged or entitled to keep open by virtue of section 31 of the Roads (Scotland) Act 1984[11];

"substance in list I" and "substance in list II" shall have the meaning given by paragraphs 1 and 2 of the Schedule to these Regulations (and paragraphs 3 and 4 of that Schedule shall have effect); and other expressions used in these Regulations which are also used in the Groundwater Directive shall have the same meaning as in that Directive.

Exclusions from these Regulations
    2. - (1) Nothing in these Regulations shall apply in relation to-

(a) any discharge of matter containing radioactive substances;

(b) any discharge of domestic effluent from an isolated dwelling which is not connected to a sewerage system and which is situated outside any area protected for the abstraction of water for human consumption;

(c) any discharge found by the Agency to contain substances in list I or II in a quantity and concentration so small as to obviate any present or future danger of deterioration in the quality of the receiving groundwater; or

(d) any activity for which a waste management licence (within the meaning of Part II of the Environmental Protection Act 1990) is required.

    (2) The Agency shall from time to time publish a summary of its findings under paragraph (1)(c) above in such manner as it considers appropriate and shall make copies of any such summary available to the public free of charge.

Discharge of functions
    3.The Agency and the Secretary of State shall for the purposes of implementing the Groundwater Directive discharge their respective functions under these Regulations, Part II of the Control of Pollution Act 1974 (control of water pollution - Scotland), Part III of the Water Resources Act 1991 (control of water pollution - England and Wales) and Part I of the Environmental Protection Act 1990 (integrated pollution control) in accordance with the following provisions of these Regulations.

Measures to prevent the introduction into groundwater of list I substances
    4. - (1) An authorisation shall not be granted if it would permit the direct discharge of any substance in list I.

    (2) An authorisation shall not be granted in relation to-

(a) the disposal, or tipping for the purpose of disposal, of any substance in list I which might lead to an indirect discharge of that substance; or

(b) any other activity on or in the ground which might lead to an indirect discharge of any substance in list I,

unless that activity has been subjected to prior investigation.

    (3) In the light of any such investigation-

(a) an authorisation shall not be granted if it would permit the indirect discharge of any substance in list I; and

(b) any authorisation granted must include conditions which require that all necessary technical precautions are observed to prevent an indirect discharge of any substance in list I.

    (4) The following powers shall be exercised if it is necessary to do so for the purpose of preventing the introduction into groundwater of substances in list I-

(a) in the case of any discharge from a highway drain or road drain which contains any such substance, the powers conferred by section 86(1) of the Water Resources Act 1991 or section 30G(1) of the Control of Pollution Act 1974 (prohibition of certain discharges by notice);

(b) in the case of any activity falling within paragraph (2)(b) above and not falling within sub-paragraph (a) above, the powers conferred by regulation 19.

    (5) However, a discharge of any substance in list I into groundwater may be authorised after prior investigation if-

(a) the investigation reveals that the groundwater is permanently unsuitable for other uses (especially domestic or agricultural uses), presence of that substance does not impede exploitation of ground resources and conditions are imposed which require that all technical precautions are observed to prevent that substance from reaching other aquatic systems or harming other ecosystems; or

(b) the discharge is due to the re-injection into the same aquifer of water used for geothermal purposes, water pumped out of mines and quarries or water pumped out for civil engineering works.

Measures to limit the introduction into groundwater of list II substances to avoid pollution
    5. - (1) An authorisation shall not be granted in relation to-

(a) any direct discharge of any substance in list II;

(b) any disposal or tipping for the purpose of disposal of any substance in list II which might lead to an indirect discharge of that substance;

(c) any other activity on or in the ground which might lead to an indirect discharge of any substance in list II,

unless that activity has been subjected to prior investigation.

    (2) An authorisation may only be granted if, in the light of any such investigation, it includes conditions which require that all necessary technical precautions are observed to prevent groundwater pollution by any substance in list II.

    (3) The following powers shall be exercised if it is necessary to do so for the purpose of avoiding pollution of groundwater by substances in list II-

(a) in the case of any discharge from a highway drain or road drain which contains such substances, the powers conferred by section 86(1) of the Water Resources Act 1991 or section 30G(1) of the Control of Pollution Act 1974 (prohibition of certain discharges by notice);

(b) in the case of any activity falling within paragraph (1)(c) above and not falling within sub-paragraph (a) above, the powers conferred by regulation 19.

Artificial recharges for the purposes of groundwater management
    6.Artificial recharges may be authorised on a case by case basis for the purpose of groundwater management notwithstanding regulations 4 and 5, but such authorisation shall only be granted if there is no risk of polluting groundwater.

Examination required in prior investigation
    7.Any prior investigation required by regulation 4 or 5 shall include examination of-

(a) the hydrogeological conditions of the area concerned;

(b) the possible purifying powers of the soil and subsoil; and

(c) the risk of pollution and alteration of the quality of the groundwater from the discharge,

and shall establish whether the discharge of substances into groundwater is a satisfactory solution from the point of view of the environment.

Surveillance of groundwater
    8.An authorisation which is subject to any of the provisions of regulation 4, 5 or 6 may only be granted if the Agency has checked that the groundwater (and, in particular, its quality) will undergo the requisite surveillance.

Terms of authorisation of discharge of substances in list I or II
    9. - (1) This regulation applies where-

(a) a direct discharge of any substance in list I or II is authorised in accordance with regulation 4(5) or 5; or

(b) waste water disposal which inevitably causes an indirect discharge of any substance in list II is authorised in accordance with regulation 5.

    (2) In a case where this regulation applies the authorisation shall specify in particular-

(a) the place where the discharge may be made;

(b) the method of discharge which may be used;

(c) the essential precautions which must be taken, paying particular attention to the nature and concentration of any substance in list I or II present in the effluent, the characteristics of the receiving environment and the proximity of water catchment areas, in particular those for drinking, thermal and mineral water;

(d) the maximum quantity of any such substance permissible in the effluent during one or more specified periods of time and the appropriate requirements as to the concentration of any such substance;

(e) the arrangements for monitoring effluents discharged into groundwater;

(f) if necessary, measures for monitoring groundwater, and in particular its quality.

Terms of authorisation for disposal or tipping for the purpose of disposal
    10. - (1) This regulation applies where-

(a) any disposal, or tipping for the purpose of disposal, of any matter which might lead to an indirect discharge of any substance in list I or II is authorised in accordance with regulation 4 or 5; and

(b) in the case of a disposal, it is not a disposal of waste water to which regulation 9(1)(b) applies.

    (2) In a case where this regulation applies the authorisation shall specify in particular-

(a) the place where the disposal or tipping may be done;

(b) the methods of disposal or tipping which may be used;

(c) the essential precautions which must be taken, paying particular attention to the nature and concentration of any substance in list I or II present in the matter to be disposed of or tipped, the characteristics of the receiving environment and the proximity of water catchment areas, in particular those for drinking, thermal and mineral water;

(d) the maximum quantity permissible, during one or more specified periods of time, of the matter containing any such substance and, where possible, of any such substance, to be tipped or disposed of and the appropriate requirements as to the concentration of any such substance;

(e) the technical precautions to be implemented to prevent any discharge into groundwater of any substance in list I and any pollution of such water by any substance in list II,

(f) if necessary, the measures for monitoring the groundwater, and in particular its quality.

Period and conditions of authorisation
    11. - (1) An authorisation of-

(a) a discharge of any substance in list I or II; or

(b) any disposal, or tipping for the purpose of disposal, of any matter which might lead to an indirect discharge of any substance in list I or II,

may be granted for a limited period only, and must be reviewed at least once in every four years when it may be renewed, amended or revoked.

    (2) If the applicant for any such authorisation states, or it is otherwise evident, that he will be unable to comply with the conditions of the proposed authorisation, the authorisation shall not be granted.

    (3) The Agency shall monitor compliance with the conditions of any such authorisation and the effects of discharges on groundwater.

    (4) If the conditions of any such authorisation are not complied with, the appropriate steps shall be taken to ensure compliance and, if necessary, the revocation of the authorisation.

Inventory of authorisations
    12.The Agency shall keep an inventory of authorisations of-

(a) direct or indirect discharges of any substance in list I;

(b) direct discharges of any substance in list II; and

(c) artificial recharges for the purposes of groundwater management.

Application of measures not to lead to pollution of groundwater
    13.The application of the measures taken pursuant to these Regulations may on no account lead, either directly or indirectly, to pollution of groundwater.

Application of provisions of water pollution legislation
    14. - (1) A person shall be treated as contravening section 85 of the Water Resources Act 1991 or, as the case may be, section 30F[12] of the Control of Pollution Act 1974 (water pollution offences) if-

(a) he causes or knowingly permits-


(i) the disposal or tipping for the purposes of disposal of any substance in list I or II in circumstances which might lead to an indirect discharge of that substance into groundwater unless it is carried on under and in accordance with an authorisation granted under regulation 18; or

(ii) any activity to be carried on in contravention of a prohibition imposed under regulation 19 or any authorisation granted under that regulation; or



(b) he contravenes the conditions of any authorisation under regulation 18 or 19.

    (2) Section 88(1) of the Water Resources Act 1991 and section 30I(1)[13] of the Control of Pollution Act 1974 (defences to water pollution offences in respect of authorised discharges) shall apply in relation to an authorisation under regulation 18 or 19 as if the reference-

(a) in section 88(1)(a) to a consent under Chapter II of Part III of the Water Resources Act 1991;

(b) in section 30I(1) to a consent under Part II of the Control of Pollution Act 1974;

included a reference to such an authorisation.

    (3) Sections 191A and 191B of the Water Resources Act 1991[14] and sections 42A and 42B of the Control of Pollution Act 1974[15] (exclusion from registers of information affecting national security and certain confidential information) shall apply in relation to the particulars mentioned in regulation 22(1) as if information furnished for the purposes mentioned in paragraphs (a) to (c) of subsection (2) of section 191A or of section 42A included information furnished to the Agency for the purposes of regulation 18 or 19.

    (4) Paragraph 11 of Schedule 10[16] to the Water Resources Act 1991 (transfer of discharge consents) shall apply in relation to an authorisation under regulation 18-

(a) as if any reference to a consent included a reference to such an authorisation;

(b) as if references to paragraphs 3 and 6 of that Schedule were references to regulation 18; and

(c) as if references to carrying on or making discharges were references to carrying on the activities regulated by the authorisation.

Application of section 71 of the Environmental Protection Act 1990
    15.Section 71[17] of the Environmental Protection Act 1990 (obtaining of information) shall apply for the purposes of these Regulations as if any reference to functions under Part II of that Act included a reference to functions under these regulations.

Application of sections 41, 42 and 123 of the Environment Act 1995
    16. - (1) Sections 41 and 42 of the Environment Act 1995 (charging schemes) shall apply in relation to an authorisation under regulation 18 or 19 as if any reference to an environmental licence included a reference to such an authorisation.

    (2) Section 123 of the Environment Act 1995 (provisions relating to the service of documents) shall apply to the service of notices under regulation 18 or 19 as it applies to the service of documents under that Act.

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Notes:

[1] S.I. 1989/2393.back

[2] 1972 c. 68.back

[3] OJ No L 20, 26.1.1980, p.43.back

[4] The Environment Agency was established by section 1 of the Environment Act 1995 (c. 25).back

[5] The Scottish Environment Protection Agency was established by section 20 of the Environment Act 1995.back

[6] 1991 c. 57; section 91(8) was amended by paragraph 143(4) of Schedule 22 to the Environment Act 1995.back

[7] 1974 c. 40; Part II of the Act was amended in relation to Scotland by Schedule 23 to the Water Act 1989 (c. 15) and Schedule 16 to the Environment Act 1995.back

[8] 1990 c. 43.back

[9] See S.I. 1991/472 as amended by S.I. 1991/836, 1992/614, 1993/1749, 1993/2405, 1994/1271, 1994/1329, 1995/3247, 1996/2678 and 1998/767.back

[10] 1980 c. 66.back

[11] 1984 c. 54.back

[12] Inserted by paragraph 2 of Schedule 16 to the Environment Act 1995.back

[13] Inserted by paragraph 2 of Schedule 16 to the Environment Act 1995.back

[14] Inserted by paragraph 170 of Schedule 22 to the Environment Act 1995.back

[15] Inserted by paragraph 29(20) of Schedule 22 to the Environment Act 1995.back

[16] Substituted by paragraph 183 of Schedule 22 to the Environment Act 1995.back

[17] Section 71(2) was amended by paragraph 86(2) of Schedule 22 to the Environment Act 1995.back

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