The Water Resources (Environmental Impact Assessment) Regulations (Northern Ireland) 2005

The Department of the Environment, being a department designated[^f00001] for the purposes of section 2(2) of the European Communities Act 1972[^f00002] in relation to measures relating to the requirement for an assessment of the impact on the environment of projects likely to have significant effects on the environment, in exercise of powers conferred upon it by that section and of all other powers enabling it in that behalf, hereby makes the following Regulations:

PART 1 — GENERAL

Citation and commencement

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These Regulations may be cited as the Water Resources (Environmental Impact Assessment) Regulations (Northern Ireland) 2005 and shall come into operation on 9th March 2005.

Interpretation

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• (1) The Interpretation Act (Northern Ireland) 1954[^f00003] shall apply to these Regulations as it applies to an Act of the Assembly.

• (2) In these Regulations –

• “agriculture” includes horticulture, fruit growing, seed growing, dairy farming, livestock breeding or keeping, the use of land as grazing land, meadowland, osier land, reed beds, market gardens and nursery grounds;

• ...

• “Commission” means the Water Appeals Commission established under Article 7 of the Water and Sewerage Services (Northern Ireland) Order 1973;

• ...

• “consultation body” means a person likely to have an interest in a project by reason of his specific environmental responsibilities or hold any information relevant to a project;

• “the Department” means the Department of the Environment;

• “the Directive” means Council Directive 85/337/EEC, concerning the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC and Council Directive 2003/35/EC on providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC;

• “licence” means a licence granted under regulation 10 of the Water Abstraction and Impoundment (Licensing) Regulations (NI) 2006;

• “relevant project” has the meaning given by regulation 3.

• (3) Other expressions used both in these Regulations and in the Directive have the same meaning in these Regulations as they have in the Directive.

Application

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• (1) An environmental impact assessment shall be carried out in accordance with these Regulations in relation to a relevant project.

• (2) A project is a relevant project if –

• (a) it is a water management project for agriculture, including an irrigation project; and

• (b) it would be likely to have significant effects on the environment by virtue, inter alia, of its nature, size or location.

• (3) A project is not a relevant project if it –

• (a) constitutes development to which the Planning (Environmental Impact Assessment) Regulations (Northern Ireland) 1999[^f00004] apply;

• (b) constitutes the carrying out of drainage works within the meaning of the Drainage (Environmental Impact Assessment) Regulations (Northern Ireland) 2001[^f00005]; or

• (c) involves the abstraction, diversion or impoundment of less than 200 cubic metres of water in any period of 24 hours.

PART 2 — PRE-APPLICATION PROCEDURES & ASSESSMENT OF RELEVANT PROJECTS

Determination whether a project is a relevant project

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• (1) Any person (“the applicant”) who proposes to apply for, or for the modification of, a licence in relation to a project which may be a relevant project may in writing request the Department to make a determination whether the project is a relevant project.

• (2) The request shall be accompanied by –

• (a) a plan sufficient to identify the place where the project is to be carried out;

• (b) a brief description of the nature, extent and purpose of the project and its possible effects on the environment; and

• (c) any other information or representations which the applicant wishes the Department to take into account.

• (3) Where the Department considers that it has insufficient information to determine the request, it shall by notice in writing inform the applicant and specify what further information it requires.

• (4) In determining whether a project is a relevant project the Department shall take into account such of the selection criteria set out in Schedule 1 as are relevant.

• (5) The Department shall give the applicant written notice of its determination before the expiry of –

• (a) a period of twenty-eight days beginning with –

• (i) the date on which the request is received; or

• (ii) where the Department has served a notice under paragraph (3), the date on which the further information specified is given to the Department; or

• (b) such longer period as may be agreed in writing with the applicant.

• (6) Where –

• (a) the Department fails to make a determination before the expiry of the period specified in paragraph (5); or

• (b) the applicant is dissatisfied with the Department’s determination that the proposed project would amount to or form part of a relevant project,

the applicant may apply to the Commission for a determination on the matter by notice in writing not later than twenty-eight days after the expiry of that period or, as the case may be, after the date of the determination of the Department.

• (7) Where an application is made to the Commission under paragraph (6), the Commission shall send a copy of the application to the Department.

• (8) The Commission shall by notice in writing given to the Applicant and the Department –

• (a) uphold or reverse the determination of the Department; or

• (b) in default of a determination by the Department, determine whether the project is a relevant project.

• (9) A determination under this regulation shall be accompanied by a written statement of the reasons for that determination.

• (10) The Department or, as the case may be, the Commission shall take such steps as are considered appropriate to make a determination under this regulation available to the public.

• (11) Where an applicant makes an application for or for the modification of, a licence in relation to the project in question he shall furnish a copy of any determination made under this regulation with his application.

Environmental statement to be provided in relation to an application

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An environmental statement and any further information required by the Department under regulation 6(7) shall be provided in relation to an application for, or for the modification of, a licence for a relevant project.

Environmental statement, and opinions of the Department on the contents of an environmental statement

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An environmental statement shall include such of the information set out in Schedule 2 as is relevant to the relevant project and at least the following –

• (a) a description of the project comprising information on the site, design and size of the project;

• (b) a description of the aspects of the environment likely to be significantly affected by the project;

• (c) a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects;

• (d) an outline of the main alternatives studied by the applicant and an indication of the main reasons for his choice, taking into account the environmental effects; and

• (e) a non-technical summary of the information provided under sub-paragraphs (a) to (d).

• (2) If a person so requests before making an application for, or for the modification of, a licence for a relevant project the Department shall, having consulted the person making the request and the consultation bodies, give an opinion on the information which should be contained in an environmental statement accompanying such an application.

• (3) The fact that the Department has given an opinion under paragraph (2) shall not preclude it from subsequently requiring the person making the request to provide further information.

• (4) The Department and the consultation bodies shall, if requested by a person proposing to make an application for which an environmental statement is required, enter into consultation with him to determine whether they have in their possession any information which may be relevant to the preparation of an environmental statement and, if they have, they shall make it available to him.

• (5) Paragraph (4) shall not require the disclosure of information where disclosure of that information may be refused under the Environmental Information Regulations 2004[^f00006].

• (6) Any body which provides information to a person under paragraph (4) may require him to pay a charge which reflects the cost of making that information available.

• (7) If the Department considers that an environmental statement does not contain all the information required by paragraph (1), it shall by notice in writing –

• (a) inform the applicant; and

• (b) specify what further information the Department requires,

and the applicant shall provide that information to the Department.

PART 3 — CONSENT

The application

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Publicity for an application

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• (1) Where an environmental statement or further information is provided in accordance with regulation 6, the applicant shall publish in the Belfast Gazette and such newspapers circulating in the relevant locality as the Department shall by notice in writing specify, a notice—

• (a) stating the applicant’s name and that he has made an application to which these Regulations apply and that he has provided the Department with an environmental statement or further information in accordance with regulation 6;

• (b) naming a place in the relevant locality at which copies of the application, the environmental statement and any further information may be inspected free of charge at all reasonable hours within a period of twenty-eight days beginning on the date the notice was published;

• (c) specifying an address at which copies of the application, the environmental statement and any further information may be obtained from the applicant and, if a charge is to be made for a copy, the amount (not exceeding a reasonable charge for copying) of the charge; and

• (d) stating that any person wishing to make representations in relation to the application should make them to the Department in writing within a period of twenty-eight days beginning on the date the notice was first published in the newspaper, at a specified address nominated by the Department.

• (2) By not later than such date as may be specified by the Department, the applicant shall send a copy of the notice published under paragraph (1) and the application (including the environmental statement and the further information) to—

• (a) the consultation bodies; and

• (b) such persons as the Department may specify,

under cover of a letter stating that any representations in relation to the application should be made in writing to the Department within a period of twenty-eight days beginning with the date of the letter.

• (3) The applicant shall send to the Department a copy of any notice published under paragraph (1) and the Department shall publish that notice on its website.

• (4) This paragraph applies to the following information namely—

• (a) any information which is provided to the Department in response to its consultation under regulation 6(2); and

• (b) any information which is relevant to the determination under regulation 9 and which becomes available to the Department, whether as a result of a request by the Department or otherwise, after the date on which the notice was published under paragraph (1).

• (5) Where the Department receives any information to which paragraph (4) applies it shall, on its website—

• (a) state a place where, during a period of twenty-eight days beginning on the day fourteen days after which the information becomes available to the Department, a copy of the information may be inspected, and that the inspection is free of charge; and

• (b) specify an address from which a copy of the information may be obtained from the Department and, if a charge is to be made for a copy, the amount (not exceeding a reasonable charge for copying) of the charge.

• (6) The Department shall not determine an application made by a person where that person has not complied with a requirement of paragraph (1), (2) or (3).

Determination of application and notice of determination

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• (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) In determining an application for, or for the modification of, a licence for a relevant project the Department shall take into consideration the environmental statement, any further information provided, and any representations relating to the environmental effects of the project made to the Department in accordance with these Regulations.

• (3) Within twenty-eight days of the decision on the application, the Department shall publish on its website and in those newspapers in which a notice was published under regulation 8 a notice stating that the Department has granted or refused the application and stating a place and times where any person may inspect –

• (a) any relevant licence or modification thereof;

• (b) a document containing the relevant decision and the main reasons and considerations on which it is based; ...

• (c) a description, where necessary, of the main measures to avoid, reduce and if possible offset the major adverse effects of the project.

• (d) information about the public participation process; and

• (e) information regarding any right to challenge the validity of the decision and the procedures for doing so.

Department’s decision on an application for consent

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Revocation or modification of consent

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PART 4 — PROHIBITION NOTICES

Prohibition notices

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Penalties for contravention of a prohibition notice

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PART 5 — PROJECTS LIKELY TO AFFECT OTHER MEMBER STATES

Projects likely to have significant effects on the environment in another Member State

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• (1) Where –

• (a) it comes to the attention of the Department that the proposed project is the subject of an environmental impact assessment application and is likely to have significant effects on the environment in another Member State; or

• (b) another Member State likely to be significantly affected by such a project so requests,

the Department shall –

• (i) publish a notice in the Belfast Gazette giving the address of the proposed project, stating that it is accompanied by an environmental statement and that it is likely to have significant effects on the environment of another Member State and giving an address at which further information may be obtained;

• (ii) send to the Member State as soon as possible and no later than the date of publication of the notice referred to in paragraph (i), the particulars mentioned in paragraph (2) and, if the Department thinks fit, the information referred to in paragraph (3); and

• (iii) give the Member State a reasonable time in which to indicate whether it wishes to participate in the procedure for which these regulations provide.

• (2) The particulars referred to in paragraph (1)(ii) are –

• (a) a description of the project, together with any available information on its possible significant effect on the environment in another Member State; and

• (b) information on the nature of the decision which may be taken.

• (3) Where a Member State indicates in accordance with paragraph (1)(iii), that it wishes to participate in the procedure for which these regulations provide, the Department shall send to that Member State –

• (a) a description of the project concerned;

• (b) a copy of the environmental statement in respect of the project to which that application relates; and

• (c) relevant information regarding the procedure under these Regulations,

unless that information has already been provided to the Member State earlier in accordance with paragraph (1)(ii).

• (4) The Department shall also –

• (a) arrange for the particulars and information referred to in paragraphs (2) and (3) to be made available, within a reasonable time, to the authorities referred to in Article 6.1 of the Directive and to the public concerned in the territory of the Member State likely to be significantly affected; and

• (b) ensure that those authorities and the public concerned are given an opportunity, before the licence or modification thereof is granted, to forward to the Department, within a reasonable time, their opinion on the information supplied.

• (5) The Department shall in accordance with Article 7.4 of the Directive –

• (a) enter into consultations with the Member State concerned regarding, inter alia, the potential significant effects of the project on the environment of that Member State and the measures envisaged to reduce or eliminate such effects; and

• (b) determine, in agreement with the other Member State, a reasonable period of time for the duration of the consultation period.

• (6) Where a Member State has been consulted in accordance with paragraph (3), on the determination of the application concerned, the Department shall inform the Member State and shall forward to it a statement of –