A watery affair
14 November 1995
US: corrective action catch 22 — Court of Federal Claims holds agency action must be rational even if GAO protest decision was not
20 August 2014
5 August 2014
9 May 2014
1 July 2014
22 April 2014
I refer to the article by Lewis Denton ('Showing up the cracks' The Lawyer 31 October).
The article was a fair summary of the position as it applies to objectors and their advisers. However, I feel compelled to put the other side of the case and to correct a couple of misconceptions that may arise as a result of the article.
Given the nature of this year's drought, the water resource position has been reviewed on a daily basis and depending upon weather conditions and the state of water stocks ,the need for drought orders and the decision whether and when to apply them has changed from day to day.
Most drought orders take the form of requests to take more water than is currently allowed from reservoirs or rivers for abstraction purposes or to reduce the level of compensation water paid out of reservoirs.
The persons likely to object to such orders are anglers or abstractors who rely upon river flows and who are often regular consultees with the water company or are otherwise fully aware of the issues and able to respond at short notice to an application for a drought order.
The type of order referred to by Mr Denton, which as he acknowledges occurred due to the "unprecedented drought conditions [of] this summer", affects a much wider customer base.
Where objections are made to applications for drought orders, the Secretary of State for the Environment is obliged to hold an inquiry or hearing unless the drought order is required to be made urgently in order to effectively meet the deficiency of supplies of water caused by the drought.
Even in that situation the Secretary of State must consider the objections made.
We at Yorkshire Water fully appreciate that a drought order which involves the erection of stand pipes or the imposition of rota cuts raises a number of concerns and that the Secretary of State will in all likelihood hold an inquiry.
However, the application is not made lightly and the inquiry was postponed as referred to by Mr Denton because sufficient rainfall had occurred since the application was lodged and further drought orders were made so as to obviate that need for the request for the necessary powers to proceed.
In view of the urgent need for drought orders there is not the time available to prepare cases to the level that lawyers would normally require for what effectively is a planning inquiry at very short notice.
Yorkshire Water appreciates the possible effects upon businesses but it has to have regard to its general water supply requirements in order to ensure that water remains available for essential purposes, ie drinking and sanitation.
Once drought order powers are given, they will not be used capriciously and therefore the use of the term "whim" is contentious. Perhaps the term "discretion" would have been more appropriate.
The position is far from ideal but the time constraints in respect of applications which need to be dealt with at very short notice do not readily provide any workable alternative.
Head of legal services
Leeds LS1 4BG