For many water abstractors, dealing with the Environment Agency (EA) can feel like navigating a complex web of policy, guidance and environmental regulation. Whether you are applying for a new abstraction licence, seeking to vary an existing licence, or responding to concerns about environmental impacts, it is important to understand the legal framework that informs how the EA deals with such issues.
This article is the first in a series exploring the legal framework governing abstraction licensing. We begin by providing an overview of the key legal duties and policy considerations that shape how the EA approaches abstraction licences.
The EA’s principal aim is set out in Section 4 of the Environment Act 1995. When exercising its functions, the EA must seek to protect or enhance the environment as a whole in a way that contributes to sustainable development. The Act also allows ministers to issue guidance regarding the objectives the EA should pursue, and the Agency must have regard to that guidance.
Importantly for abstractors, environmental protection is not the only consideration. The EA is also subject to a number of wider public law duties. For example, it must consider costs and benefits when carrying out its functions, have regard to biodiversity conservation, and take account of promoting economic growth when exercising its regulatory functions.
In practice, this means the Agency is required to balance competing interests. It must protect the water environment, but it must also recognise the importance of water dependent businesses.
The balancing exercise is informed by the Agency’s water resources management functions under the Water Resources Act 1991. These include conserving, redistributing or otherwise augmenting water resources, securing their proper use, and considering minimum acceptable flows and levels. The Agency must also exercise its functions consistently with its wider environmental, conservation, fisheries and recreation duties concerning designated sites and biodiversity.
The interests engaged can differ materially. Consumptive abstractors, including public water suppliers, farmers and industrial users, remove water from the immediate source and may reduce flows or groundwater levels. Non-consumptive users may return water locally but can still alter the timing and route of flows, create depleted reaches or affect fish passage. Angling and fisheries interests are concerned with sufficient flows, habitat quality and migration, while navigation, recreation, conservation bodies, local communities and existing lawful abstractors may also depend on the same resource. The Agency must therefore assess both the volume taken and the practical effect of the proposal within the particular catchment.
The principal legislation governing abstraction licensing is the Water Resources Act 1991. Under that regime, water abstraction generally requires a licence from the EA. The EA is responsible for administering that licensing system and determining applications.
When deciding whether to grant, refuse or amend a licence, the Agency must consider a range of factors. These include whether sufficient water is available, whether existing lawful users would be adversely affected, and whether the proposed abstraction would damage the environment.
This often means demonstrating not only a need for water, but also that the proposed abstraction can operate without causing unacceptable impacts on river flows, ecology or other water users.
The Agency may control those impacts through licence terms, including annual and daily quantities, authorised purposes and points of abstraction, seasonal limits and conditions that reduce or stop abstraction when flows or groundwater levels fall below specified thresholds. The Agency must also consider the cumulative effect of the proposal alongside existing abstractions, rather than assessing an application in isolation. Existing licences may be reviewed or varied where abstraction is causing, or risks causing, environmental damage, subject to the statutory framework governing variation, revocation and compensation.
At the operational level, the Agency manages abstraction through the Catchment Abstraction Management Strategy (CAMS) and abstraction licensing strategies. These assess how much water is available within a catchment, identify environmental constraints and help inform decisions on new and existing abstraction licences. They are an important starting point for an applicant, although they do not replace the site-specific assessment required for an individual proposal.
Surface-water availability is generally assessed at defined assessment points and against the flow needed to support the ecology of the water body. This can affect whether water is available throughout the year, only at higher flows, or not available for further consumptive abstraction. Groundwater assessment considers the balance between recharge and abstraction, together with links to river, springs, wetlands and other groundwater dependent features. Because surface water and groundwater are connected, pressure in one part of a catchment may constrain abstraction elsewhere.
Catchment management is also relevant to reliability. A licence may authorise a stated quantity yet remain subject to hands-off flow or level conditions, meaning the water will not always be available when the abstractor needs it. Applicants should therefore consider storage, trading, shared or collaborative arrangements and demand management, as well as the headline licensed volume.
Recent years have seen increasing pressure on water resources from climate change, population growth and environmental demands. As a result, abstraction licensing is now closely linked to wider water resources planning.
The EA’s National Framework for Water Resources 2025 sets out a long-term strategy for managing water availability. The Framework emphasises the need to balance water for growth, food production, energy generation and environmental protection.
Of particular relevance to abstractors is the Framework’s recognition that abstraction licences must be assessed against both water availability and environmental requirements. The EA must protect existing water rights and lawful uses while ensuring that rivers, groundwater and protected habitats are not adversely affected.
As environmental standards evolve, abstractors should therefore expect the Agency to place increasing scrutiny on the sustainability of water use, particularly in environmentally sensitive catchments.
Another key influence on abstraction licensing is the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017.
These regulations provide the framework for managing the water environment through River Basin Management Plans (RBMPs). The purpose of the regime is to prevent deterioration in the status of water bodies and to support the achievement of long-term environmental objectives. Public authorities, including the EA, must have regard to RBMPs when exercising relevant functions.
For abstractors, this is significant because decisions about abstraction licences are often influenced by wider catchment objectives identified within these plans. Where a river or groundwater body is under environmental pressure, licensing decisions may reflect the need to improve environmental outcomes or avoid further deterioration.
RBMPs are prepared for river basin districts and set legally binding, locally specific environmental objectives for surface waters and groundwater. They identify the status of water bodies, the pressures preventing objectives from being achieved and the programme of measures intended to address those pressures. For surface water, relevant objectives include preventing deterioration and achieving good ecological status, or good ecological potential for artificial or heavily modified water bodies. For groundwater, the regime addresses both quantitative and chemical status.
Flow is a supporting element of ecological status, so abstraction licensing is one of the regulatory mechanisms used to deliver RBMP objectives. The Agency compares actual and permitted abstraction pressures with the flow conditions required to support river biology. Where abstraction contributes to a failure, or creates a risk of deterioration, this may affect the availability of new water, the conditions imposed on a licence or the review of existing licences. A proposal may also require separate consideration under the habitats legislation where it could affect a protected European site, and under domestic legislation protecting Sites of Special Scientific Interest.
Although closely linked, RBMPs and abstraction licensing strategies operate at different levels. RBMPs establish the environmental objectives for a river basin district, while abstraction licensing strategies assess how those objectives affect water availability and licensing decisions within individual catchments. The EA then applies that framework when determining specific abstraction licence applications.
The EA’s responsibilities extend beyond water quantity. It also has statutory duties relating to fisheries.
Under the Environment Act 1995, the Agency has a duty to maintain, improve and develop fisheries. Additional obligations arise under legislation such as the Salmon and Freshwater Fisheries Act 1975 and the Eels Regulations 2009. These duties can be particularly relevant where abstraction may affect fish migration, flow conditions or habitats.
The assessment may need to consider reduced depths and velocities, higher water temperatures, loss of wetted habitat, barriers to upstream or downstream migration and the effect of intakes or associated structures on fish and eels. These issues can arise with consumptive abstraction and with hydropower schemes, even where much of the water is returned to the river. Conditions, screening requirements, bypass flows or other mitigation may be necessary, and the views of fisheries interests, angling bodies and conservation organisations may form part of the evidence relevant to the decision.
While the abstraction licensing regime can appear complex, the key takeaway is that the EA’s decisions are shaped by a broad legal framework rather than a single piece of legislation. The Agency must balance environmental protection, sustainable development, economic growth, water resources planning and fisheries interests when determining licence applications.
For applicants, the key point is to review the relevant RBMP and abstraction licensing strategy at an early stage, identify any affected users or environmental features, and consider water availability from the outset. It is important not to assume that a non-consumptive abstraction will have no impact, or that a consumptive abstraction can be assessed solely by reference to the volume of water taken. The EA will also consider factors such as the timing, location and pattern of use within the catchment. In our next article, we will look in more detail at abstraction rights and licences.
