The Planning Inspectorate has published advice on summarising the requirements of The Water Environment Regulations 2017 (WFD Regulations) in relation to Nationally Significant Infrastructure Project (NSIP) applications.

The advice is non-statutory. However, the Planning Inspectorate said the advice about running the infrastructure planning regime and matters of process is drawn from good practice and applicants and others should follow the recommendations.

It is intended to complement the legislation, regulations and guidance issued by government and is produced under section 51 of the Planning Act.

The advice should be read together with Planning Inspectorate’s Advice on the Environmental Impact Assessment Process and government guidance on the Planning Act process.

When deciding NSIP applications, the Secretary of State for Environment will need to consider the potential effects of any proposed development on:

• the environmental objectives and measures within River Basin Management Plan and any supplementary plans and
• the ability of the UK to comply with the WFD, including (if applicable) the derogation provisions of Article 4.7

The Examining Authority for an NSIP application must also report on these effects and ensure the Secretary of State has enough information to decide whether the development has implications for the UK’s obligations under the WFD. This includes information in support of any derogation that may be sought.

Several National Policy Statements on Energy, Nuclear, National Networks, Ports, Waste Water, and Hazardous Waste state that the Environmental Statement must contain information on impacts arising from the proposed development on water bodies or protected areas under the WFD and other relevant directives.

Regulation 5(2) (l) (iii) of the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009 (the APFP Regulations) requires applicants to provide a plan and information identifying water bodies in a river basin management plan, together with an assessment of any effects on such bodies likely to be caused by the proposed development.

Any WFD assessment must be conducted thoroughly and be easily identified amongst the application documents.

The advice says that most NSIP applications will need an Environmental Impact Assessment (EIA) and often also require a Habitat Regulations Assessment (HRA).an EIA and an HRA. 

The WFD assessment, EIA and HRA are separate assessments but all are integral to the application and there is a direct relationship between them.

The assessments influence decision-making in different ways:

• the WFD assessment informs the Secretary of State in relation to the duty to have regard to the River Basin Management Plan and any supplementary plans (Regulation 33 of the 2017 WFD Regulations)
• the EIA informs the Secretary of State of likely significant effects from the Proposed Development and its findings must be taken into consideration (Regulation 4(2) of the 2017 Infrastructure Planning (EIA) Regulations)
• the HRA has required stages to be followed by the decision maker when authorising development consent which can only be granted if the requirements of the Habitats Regulations are met (Regulation 28/61 of the relevant Habitats Regulations)

A WFD assessment will need to record the effects of the proposed development on the WFD objectives and relevant River Basin Management Plans. This information must be clearly identified in the application documents. and it is recommended that the assessment be submitted either as a separate report or as a separate assessment within the environmental statement.

Applicants can use the EIA scoping procedure to submit information identifying the water bodies within relevant River Basin Management Plans likely to be impacted by the development, including the methodology for assessment. This will help alert the Planning Inspectorate, the Secretary of State, and relevant consultees to the implications of the proposed development on the WFD early in the pre-application stage.

Applicants are advised to describe the methods they plan to use in their WFD assessment within their EIA scoping report.

The Environment Agency and Natural Resources Wales must comply with the WFD and are statutory consultation bodies under the Planning Act 2008. Applicants should seek the views of the Environment Agency and/or Natural Resources Wales early in the pre-application process and during examination if necessary.

Click here to access the advice in full