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In the first article in this series, we explored the legal framework governing abstraction licensing and the factors that influence how the Environment Agency (EA) exercises its licensing functions.
This second article looks at the rights on which an abstractor may rely, the circumstances in which an abstraction licence is required, the principal exceptions and exemptions, and the process of applying for a new licence.
The historical position
Before the introduction of the modern abstraction licensing regime, rights to abstract water arose in a variety of ways. One of the most significant ways was through ownership of land adjoining a natural watercourse. Such landowners, known as riparian owners, enjoyed certain common law rights in relation to water flowing through or alongside their land, including the right to take reasonable quantities for ordinary domestic purposes and, in some circumstances, agricultural use. Those rights were not unlimited and could not generally be exercised in a way that interfered with the rights of downstream users or materially altered the natural flow of the watercourse.
Many farms, businesses and industrial operations historically relied upon these riparian rights or long-established abstraction practices. As demands on water resources increased, concerns grew that unrestricted abstraction could lead to environmental damage and conflicts between competing water users. In response, abstraction licensing was gradually expanded, with existing abstractors being given the opportunity to formalise their historic water use through what became known as licences of right or licences of entitlement.
The purpose of this process was to bring established lawful abstractions within a regulated framework without requiring long-standing users to compete for new water rights. Qualifying abstractors were able to convert historic abstractions into licensed permissions, providing greater certainty for water users whilst enabling regulators to develop a comprehensive picture of water use across individual catchments. Many abstraction licences in force today originated from these historic conversion exercises.
The Water Resources Act 1963 introduced the first comprehensive abstraction licensing system. Existing lawful abstractions could be brought within that system through licences of right. Further transitional arrangements followed when controls were extended to additional areas and activities, including licences of entitlement under later legislation.
The current regime is contained principally in the Water Resources Act 1991 (WRA 1991), as amended. Historic licences may therefore reflect an earlier lawful use, but their present scope depends on the wording of the licence, including the authorised source, point, purpose, quantities, means of abstraction and any conditions.
When is a licence required?
The general rule under section 24 of the WRA 1991 is that a person must not abstract water from a source of supply, or cause or permit another person to do so, except under and in accordance with an abstraction licence. Abstraction includes removing water temporarily or permanently and transferring it from one source of supply to another.
A source of supply includes inland waters and water contained in underground strata. Inland waters include rivers, streams and other natural or artificial watercourses, lakes, ponds, reservoirs, docks, canals, tidal waters and estuaries. Groundwater abstraction from wells, boreholes, springs, quarries and mineral workings may also require preliminary consent to investigate the source before a licence application is made.
Waters outside the licensing regime
The statutory definition of source of supply excludes discrete waters. An isolated lake, pond or reservoir which does not discharge to another inland water may therefore fall outside the abstraction licensing regime. The same may apply to a self-contained group of lakes, ponds, reservoirs and connecting watercourses or mains where none of the waters discharges outside the group. Whether water is truly discrete is a factual and hydrological question. A visible or engineered connection, such as a pipe, culvert, ditch, overflow or cascade, is likely to be particularly relevant. The position may be less straightforward where the only possible connection is through groundwater or percolation, and specialist hydrological advice may be required.
Water taken from the sea in open coastal areas is also outside the abstraction regime. Care is needed at the interface with tidal waters and estuaries, which are inland waters for licensing purposes.
Small quantities exception
It is important to distinguish between waters that fall outside the licensing regime, statutory exceptions and exemptions, and regulatory position statements (RPSs) in which the EA adopts a particular enforcement position, as each has a different legal effect.
An abstraction licence is generally not required where the total quantity abstracted from the same source does not exceed 20 cubic metres, or 20,000 litres, in any 24 hour period. Multiple abstraction points or a series of operations cannot be used to avoid the threshold; the combined quantity from the same source must be considered. The threshold is not a general permission to cause damage or interfere with private rights, and different controls may still apply to the works or the use of the water.
Other statutory exceptions and exemptions
The Water Resources Act 1991 also contains targeted exceptions, including abstractions for firefighting and certain activities connected with vessels, land drainage, and investigation of groundwater carried out with the EA’s consent. The emergency exception is narrow. It applies where abstraction is necessary to prevent the immediate risk of death, personal injury or harm, or serious damage to the environment. It should not be treated as a general health and safety or operational convenience exemption.
The Water Abstraction and Impounding (Exemptions) Regulations 2017 add specific exemptions. These include defined activities by:
- navigation, harbour and conservancy authorities and dry docks;
- emergency abstractions by navigation, harbour and conservancy authorities;
- small-scale dewatering and surface water abstraction in connection with building or engineering works;
- abstraction in the course of dredging;
- abstraction within a managed wetland system; and
- abstraction from specified saliferous strata.
Each exemption is subject to detailed conditions, so the activity, duration, source, quantity and purpose must be checked against the relevant provision.
Regulatory position statements
In addition, the EA publishes RPSs for certain low risk activities, including specified rainwater harvesting, passive dewatering and some small-scale construction dewatering or nature-recovery abstractions. An RPS is not the same as a statutory exemption. It records circumstances in which the EA will not normally take enforcement action, provided all stated conditions are met, and it may be withdrawn or amended.
Agricultural abstractions
Agricultural use is not subject to a broad standalone exemption. The 20 cubic metre daily threshold may apply, but larger abstractions for livestock watering, irrigation or other farm uses will normally require a licence unless a specific exemption applies.
Care is required for agricultural irrigation. The general small quantity threshold should not be assumed to authorise every method of irrigation, and the position should be checked against the detailed statutory provisions and current EA guidance.
Types of Abstraction Licences
- A full licence is used for most abstractions over 20 cubic metres a day lasting 28 days or more.
- A transfer licence applies where more than 20 cubic metres a day is moved from one source to another, or between points in the same source in specified dewatering circumstances, without intervening use.
- A temporary licence applies to an abstraction lasting less than 28 days.
- A separate impounding licence may be required to construct or alter a dam, weir, sluice or other structure which obstructs or impedes flow. Historic impounding works require separate consideration. Some works constructed before present controls took effect may not have required an impounding licence, although the EA may still have powers to regulate their environmental effects.
Applying for an abstraction licence
Obtaining an abstraction licence typically involves much more than simply completing an application form.
Before applying, the proposed abstractor should identify the precise source and point of abstraction, confirm a sufficient right of access to the relevant land, and review the local abstraction licensing strategy. The strategy indicates the water availability position within the catchment and the EA’s likely approach to a new licence application.
The application will need to explain the quantity required, purpose, timing and seasonality of abstraction, the proposed works and method of measurement, and the environmental impact. Plans, hydrological or hydrogeological information, ecological evidence and other assessments may be required. A groundwater proposal may require consent to investigate and a hydrological impact assessment before the abstraction licence application is made.
How the EA assesses applications
The EA does not simply consider whether water is physically present. When determining an abstraction licence application, it must assess whether the proposed abstraction is sustainable within the wider context of the relevant catchment. A key consideration is whether sufficient water is available without causing unacceptable environmental harm or adversely affecting existing lawful water users. The EA will also consider ecological impacts, including potential effects on river flows, groundwater-dependent ecosystems, fisheries, protected habitats and designated conservation sites.
In carrying out that assessment, the EA uses the Catchment Abstraction Management Strategy (CAMS) process and the relevant abstraction licensing strategy. The strategy provides information about water availability within the catchment and indicates whether water resources are available for further licensing, or already fully committed, or subject to environmental constraints.
The EA also takes account of Environmental Flow Indicators (EFIs), which are benchmarks used to assess the environmental health of watercourses and the flows needed to support ecological objectives. Where an existing or proposed abstraction would risk reducing flows below these levels, the EA may refuse an application, restrict the quantity of water available, or impose conditions designed to protect the water environment.
Applications for new full or transfer licences may need to be advertised, and third parties may make representations. New licences are commonly time limited and linked to a common end date for the relevant catchment. The precise duration and conditions will depend on the proposal and local strategy.
Looking ahead
The first question is not simply how much water is needed, but where the water comes from, how the source is connected to other waters, what right the applicant has to reach and use the abstraction point, and whether the activity falls within a precise defined exception. Those issues should be investigated before pumps, boreholes, pipelines or storage infrastructure are commissioned.
If there is uncertainty, early engagement with the EA is sensible. Abstracting without a licence when one is required, or outside the terms of a licence, may result in enforcement action. It may also expose the abstractor to private law claims from neighbouring owners or other rights holders.
Historic water rights continue to matter, but they now operate within a detailed statutory system. Common law rights, the licensing threshold, discrete waters, statutory exemptions and any relevant RPS must be considered separately. The safest approach is to analyse the source, connections, quantity, purpose and duration of the proposed abstraction before deciding that no licence is required.
In our next article, we will examine variations to abstraction licences.