The new cost recovery powers were provided by the Environment Act 1995. The Agency already had powers under section 161 of the Water Resources Act 1991 to carry out "works or operations" to prevent polluting matter from entering controlled waters or to restore polluted waters. The costs involved are recoverable from those who "caused or knowingly permitted" the pollution or threat of pollution.
These powers have now been extended modestly to enable the Agency to carry out investigations for the purpose of establishing the source of water pollutants and the identity of the person who caused or knowingly permitted their entry or threatened entry into controlled waters. The costs of such investigations will be recoverable under the same terms.
The Agency and its predecessor, the National Rivers Authority, have made little use of the section 161 powers because neither were given a budget to carry out pollution prevention or remediation works. The Agency is anxious to see the entry into force of a new section 161A, inserted by the 1995 Act, which will enable it to serve "works notices" requiring water polluters to carry out prevention and remediation works themselves.
Regulations are needed to bring section 161A into force, but have been held back because of a possible conflict with the 1995 Act's provisions on contaminated land, which contain more elaborate powers for apportioning liability and setting standards for clean-up of contaminated sites, including those causing water pollution (ENDS Report 260, pp 15-18 ). However, a consultation paper containing draft regulations to implement section 161A is expected shortly.
Also brought into force on 1 July was a section of the 1995 Act extending the application of the 1991 Act to the Crown, with the exception of its provisions on water resources management. The move means that Crown properties - notably many sites operated by the Ministry of Defence - will now be subject to the discharge consent regime. The Crown will not be criminally liable for breaches of the law, but the Agency will be able to apply to the High Court for a declaration that the act or omission concerned was unlawful.