Water pollution laws developed in an ad hoc and fragmented manner rather than as part of an overarching, integrated framework. In England, common law developed the concept of riparian rights to attribute responsibilities and rights to those whose land abutted a watercourse, and many of nuisance claims of industrial era concerned water quality.
Water quality and water pollution issues were one of the first areas of EU regulatory activity in relation to the environment with the first EU Drinking Water Directive 75/440/EEC, later folded into the Water Framework Directive 2000/60/EC. EU legislation is still the foundation of UK law today.
EU Water Framework Directive
The EU Water Framework Directive (WFD) 2000/60/EC is the starting point for water quality regulation and water protection across the EU. It focuses on three broad interconnected objectives:
• river basin management, through the identification of river basin districts (RBDs) and the publication of river basin management plans (RBMPs) every six years;
• pollution prevention and management of both point-source and diffuse pollution; and
• ensuring the health of all water bodies so that they meet ‘good’ ecological and chemical status by 2015 – or 2027 at the latest for those Member States that required an extension.
The EU WFD and its supplementing legislation also set EU-wide rules and procedures to protect water resources and monitor water bodies and require national authorities to:
• register protected areas that require special attention, for instance for drinking water; and
• establish a mechanism to recover costs of water services and ensure efficient use of resources and appropriate payment by polluters.
The EU WFD is supplemented by two “daughter Directives”:
• the EU Environmental Quality Standards (EQS) Directive 2008/105/EC, which sets concentration limits for pesticides, heavy metals and biocides; and
• the EU Groundwater Directive 2006/118/EC, which lays out procedures to assess the chemical status of groundwater, as well as measures to reduce pollutant levels; as well as
• the EU Quality Assurance and Quality Control (QAQC) Directive 2009/90/EC.
The EU WFD and its daughter Directives are mainly transposed under:
• the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017 (SI 2017/407), for England and Wales
• the Water Environment and Water Services (Scotland) Act 2003
• the Water Environment (Water Framework Directive) Regulations (Northern Ireland) 2017 (SR 2017/81), for Northern Ireland
• the Water Framework Directive (Classification, Priority Substances and Shellfish Waters) Regulations (Northern Ireland) 2015 (SR 2015/351), for Northern Ireland
• the Groundwater Regulations (Northern Ireland) 2009 (SR 2009/254), for Northern Ireland.
The EU Water Framework Directive sits in the centre of the EU’s water protection regime.
Other Directives and framework legislation supplement and coordinate with the WFD regime (and with each other):
• the EU Floods Directive 2007/60/EC – flood management plans are elements of integrated river basin management
• the EU Bathing Water Directive 2006/7/EC, which explicitly states complementing the EU Water Framework Directive in its purposes;
• the EU Drinking Water Quality Directive 98/83/EC, and the monitoring Directive EU Drinking Water Directive 2015/1787/EU
• the EU Urban Waste Water Treatment Directive 91/271/EEC
• the EU Agricultural Nitrates Directive 91/676/EEC, which addresses eutrophication in conjunction with the EU Urban Waste Water Treatment Directive 91/271/EEC
• the EU Habitats and Birds Directives 92/43/EEC and 2009/147/EC; and
• the EU Environmental Liability 2004/35/EC.
The system of protected water environment areas, in particular, cuts across areas designated under several of these Directives. The Water Environment and Water Services (Scotland) Act 2003 provides for identifying protected water bodies following the criteria of the various Directives; the Water Environment (Shellfish Water Protected Areas: Environmental Objectives etc.) (Scotland) Regulations 2013 (SSI 2013/325) is among the statutory instruments making such provision for specific protected water bodies.
Framework legislation for water regulation in the UK includes:
• the Water Resources Act 1991, for England and Wales
• the Water Industry Act 1991, for England and Wales
• the Land Drainage Act 1991, for England and Wales
• the Water Environment and Water Services (Scotland) Act 2003, for Scotland
• the Water Resources (Scotland) Act 2013, for Scotland
• the Water and Sewerage Services Act (Northern Ireland) 2016, for Northern Ireland
Water pollution and the impacts of industry on the water environment are covered in the environmental permitting regime in England and Wales and the pollution control regime in Scotland (through specific water environment provisions as detailed below) and Northern Ireland (see SI 2016/1154, the Pollution Prevention and Control Act 1999 and the Industrial regulation guide). Permits are required for water discharge activities and groundwater activities.
Water abstraction in England and Wales was originally covered under a distinct regulatory regime outlined in the Water Resources Act 1991 (Part II, Chapter II – as amended by the Water Act 2003). Abstraction licences are due to be folded into the environmental permitting regime in 2021 (under powers in the Water Act 2014, Section 61), as set out in Defra’s policy paper for the water abstraction plan. Currently, the Water Resources (Abstraction and Impounding) Regulations 2006 (SI 2006/641) still apply.
In Scotland, water abstraction is regulated by the Water Environment (Controlled Activities) (Scotland) Regulations 2011 (SSI 2011/209) (the ‘CAR’ Regulations) under the Water Environment and Water Services (Scotland) Act 2003. SEPA dispenses the licences. The CAR Regulations provide more widely for the control (through authorisation) of activities that may have an impact on the Scottish water environment, such as abstractions, impoundments, discharges and engineering works in and near freshwater. The Water Resources (Scotland) Act 2013 brings large-scale water abstraction under Ministerial control.
In Northern Ireland, abstraction and impoundment is covered by the Water Abstraction and Impoundment (Licensing) Regulations (Northern Ireland) 2006 (SR 2006/482).
The EU Floods Directive 2007/60/EC imposes obligations to assess flood risk and map the areas of risk. Flood maps and flood risk assessment are an important consideration in planning, construction and development decisions, and home insurance. The EU Floods Directive also creates the framework for the development of flood risk management plans, intended to work in tandem with the RBMPs. It is implemented in the UK through:
• the Flood Risk Regulations 2009 (SI 2009/3042), for England, Scotland and Wales,
• the Flood Risk (Cross Border Areas) Regulations 2010 (SI 2010/1102), for cross-border coordination in England and Scotland,
• the Flood Risk Management (Scotland) Act 2009, and
• the Water Environment (Floods Directive) Regulations (Northern Ireland) 2009 (SR 2009/376).
Flood regulation legislation for England and Wales also includes:
• the Water Act 2014, which, among other things, establishes the Flood Re scheme alongside the Flood Reinsurance (Scheme and Scheme Administrator Designation) Regulations 2015 (SI 2015/1875) and the Flood Reinsurance (Scheme Funding and Administration) Regulations 2015 (SI 2015/1902). Flood Re aims to ensure insurance for properties at risk of flooding remains available and affordable; and
• the Flood and Water Management Act 2010.
Flood risk permits are delivered through the environmental permitting regime in England and Wales. In Scotland, SEPA regulates flood risk activities under the CAR Regulations. In Northern Ireland, approval from the Department for Infrastructure Rivers is required for planning works which affect watercourses.
Water industry regulation and drinking water
The Water Industry Act 1991 requires local authorities to keep themselves informed about the quality and quantity of water supplies provided to premises within their area.
Water services companies must secure a licence for water abstraction (see above). The quality of the public water supply for drinking, washing, cooking, food preparation and production is further controlled under:
• the Natural Mineral Water, Spring Water and Bottled Drinking Water (England) Regulations 2007 (SI 2007/2785);
• the Natural Mineral Water, Spring Water and Bottled Drinking Water (Wales) Regulations 2015 (WSI 2015/1867);
• the Natural Mineral Water, Spring Water and Bottled Drinking Water (Scotland) (No. 2) Regulations 2007 (SSI 2007/483);
• the Natural Mineral Water, Spring Water and Bottled Drinking Water Regulations (Northern Ireland) 2015 (SR 2015/365);
• the Water Supply (Water Quality) Regulations 2016 (SI 2016/614), for England and Wales;
• the Water Supply (Water Quality) Regulations 2018 (WSI 2018/647), for Wales;
• the Water Supply (Water Quality) Regulations (Northern Ireland) 2017 (SR 2017/212), for Northern Ireland; and
• the Public Water Supplies (Scotland) Regulations 2014 (SSI 2014/364), for Scotland.
Private water supply
There are also provisions for the private water supply sector, under the:
• the Private Water Supplies (England) Regulations 2016 (SI 2016/618);
• the Private Water Supplies Regulations (Northern Ireland) 2017 (SR 2017/211);
• the Water Intended for Human Consumption (Private Supplies) (Scotland) Regulations 2017 (SSI 2017/282);
• the Private Water Supplies (Scotland) Regulations (SSI 2006/209);
• the Private Water Supplies (Wales) Regulations 2017 (WSI 2017/1041); and
• Private Water Supplies Regulations (Northern Ireland) (SR 2017/211).
Urban waste water
Before entering a collecting system discharges must be treated to a certain standard. Requirements govern treatment plants as well as discharges of treated urban waste water or industrial waste water to collecting systems and discharges into receiving waters.
The legislation which set out provisions for all urban waste water follows:
• the Urban Waste Water Treatment (England and Wales) Regulations (SI 1994/2841);
• the Urban Waste Water Treatment (Scotland) Regulations (SI 1994/2842);
• the Water Environment (Register of Protected Areas) (Scotland) Regulations 2004 (SSI 2004/516);and
• the Urban Waste Water Treatment Regulations (Northern Ireland) (SR 2007/187).
UK legislation on urban waste water treatment implements the EU urban waste water treatment directive 91/271/EEC.
Bathing water quality
Bathing water quality is primarily regulated under the EU Bathing Water Directive 2006/7/EC, implemented in the UK through:
• the Bathing Water Regulations 2013 (SI 2013/1675), for England and Wales,
• the Bathing Waters (Scotland) Regulations 2008 (SSI 2008/170), for Scotland,
• the Quality of Bathing Water Regulations (Northern Ireland) 2008 (SR 2008/231), for Northern Ireland.
Every year there are about 3,000 pollution incidents involving oil and fuels in England and Wales. The main causes of oil related water pollution are:
• loss from storage facilities;
• spillage during delivery; and
• deliberate disposal of waste oil to drainage systems.
The following legislation requires everybody in custody or control of oil to carry out certain works and take necessary precautions which will prevent the pollution of any controlled waters or the water environment:
• the Control of Pollution (Oil Storage) (England) Regulations 2001 (SI 2001/2954);
• the Water Environment (Miscellaneous) (Scotland) Regulations 2017 (SSI 2017/389), which folded oil storage controls into the CAR Regulations; and
• the Control of Pollution (Oil Storage) Regulations (Northern Ireland) 2010 (SR 2010/412).
For agricultural fuel oil, the following apply:
• the Water Resources (Control of Pollution) (Silage, Slurry and Agricultural Fuel Oil) (England) Regulations SI 2010/639;
• the Control of Pollution (Silage, Slurry and Agricultural Fuel Oil) (Scotland) Regulations SSI 2003/531;
• the Water Resources (Control of Pollution) (Silage, Slurry and Agricultural Fuel Oil) (Wales) Regulations SI 2010/1493;
• the Control of Pollution (Silage, Slurry and Agricultural Fuel Oil) Regulations (Northern Ireland) SR 2003/319.
Diffuse pollution from agriculture
The EU Agricultural Nitrates Directive 91/676/EEC mandates the establishment of Nitrate Vulnerable Zones (NVZs) to reduce pollution caused by nitrate (NO3) from agricultural sources leaching into the water environment. It is implemented through:
• the Nitrate Pollution Prevention Regulations 2015 (SI 2015/668) for England, and the environmental permitting regime;
• the Designation of Nitrate Vulnerable Zones (Scotland) Regulations 2015 (SSI 2015/376);
• the Protection of Water Against Agricultural Nitrate Pollution (Scotland) Regulations 1996 (SI 1996/1564);
• the Water Environment (Register of Protected Areas) (Scotland) Regulations 2004 (SSI 2004/516);
• the Nutrient Action Programme Regulations (Northern Ireland) 2019 (SR 2019/81)
• the Nitrate Pollution Prevention (Wales) Regulations 2013 (WSI 2013/2506).
The Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018 (SI 2018/151) also implement requirements to control diffuse pollution.
Environmental liability and impact assessment
Environmental liability legislation introduced in the UK to implement the EU Environmental Liability Directive (2004/35/EC) has an important bearing on water protection. The rules are the:
• the Environmental Damage (Prevention and Remediation) (England) Regulations 2015 (SI 2015/810);
• the Environmental Damage (Prevention and Remediation) (Wales) Regulations (WSI 2009/995, as amended by WSI 2015/1394);
• the Environmental Liability (Scotland) Regulations 2009 (SSI 2009/266, as amended by SSI 2015/214); and
• the Environmental Liability (Prevention and Remediation) Regulations (Northern Ireland) 2009 (SR 2009/252, as amended by SR 2015/231).
These laws impose duties on operators of economic activities to take immediate steps to prevent damage if there is an imminent threat, and to control damage which is occurring so as to limit its effects. It includes water damage within that scope, defined as ‘any damage that significantly adversely affects the ecological, chemicals and/or quantitative status and/or ecological potential, as defined in [the EU WFD Directive], of the waters concerned’.
Similarly, the environmental impact assessment (EIA) regime under the EU EIA Directive 2011/92/EU takes damage to water resources and the water environment – freshwater or marine – into consideration. The general EIA process considers impacts on the water environment as a rule; specific Regulations concerned with works directly within the water environment include:
• the Water Resources (Environmental Impact Assessment) (England and Wales) Regulations 2003 (SI 2003/164), for England and Wales;
• the Water Resources (Environmental Impact Assessment) Regulations (Northern Ireland) 2017 (SR 2017/85);
• the Marine Works (Environmental Impact Assessment) Regulations 2007 (SI 2007/1518), for England, Wales and Scotland;
• the Marine Works (Environmental Impact Assessment) (Amendment) Regulations 2011 (SI 2011/735), in particular for marine minerals regulation; and
• the Marine Works (Environmental Impact Assessment) (Scotland) Regulations (SSI 2017/115), for Scotland.
Habitats and Birds Directive and conservation
Both the EU Habitats Directive 92/43/EEC and the EU Birds Directive 2009/147/EC cover the marine and water environments in their provisions. Conservation sites with water-related features identified are designated as ‘protected areas’.
In relation to marine areas in particular, the Habitats and Birds Directives are implemented through the Conservation of Offshore Marine Habitats and Species Regulations 2017 (SI 2017/1013)
Other framework legislation protecting the marine environment includes:
• the EU Marine Strategy Framework Directive 2008/56/EC, which establishes a framework for protection of the marine environment against damage from human activities, and, much like the EU WFD, required the development of strategies to achieve ‘good environmental status’ by 2020. It is implemented in the UK through the Marine Strategy Regulations 2010 (SI 2010/1627);
• the EU Maritime Spatial Planning 2014/89/EU, to promote the sustainable growth of maritime economies, the sustainable development of marine areas and the sustainable use of marine resources;
• the Marine and Coastal Access Act 2009, providing for the management of the UK marine environment;
• the Marine (Scotland) Act 2010, providing for the management and licensing of activities in Scotland’s marine environment, as well as powers to designate Marine Protected Areas (MPAs).