APPENDIX 1
Memorandum submitted by Ministry of Agriculture, Fisheries & Food (PAC 00-01/154)
This paper, which has been agreed with the Environment Agency, meets the Public Accounts Committee's request for notes on the following issues:
(a) the distinction between main rivers and ordinary watercourses, including the procedure for designation; and
(b) riparian owner responsibilities to maintain watercourses.
Q95. Main rivers and ordinary watercourses
2. Section 193 of the Water Resources Act 1991 requires the Environment Agency to keep maps showing those watercourses which have been designated as "main rivers". Watercourses which do not appear on the map are regarded as "ordinary watercourses".
3. The Environment Agency has permissive powers to undertake flood defence works (such as capital schemes and maintenance) on main rivers. On ordinary watercourses these powers reside with local authorities or, where they exist, with internal drainage boards.
4. There are no objective criteria for deciding whether a particular watercourse should be designated as main river or ordinary watercourse, although the rivers presenting the most significant flood risk will tend to have been "mained". The major rivers in England (and Wales) are designated as main river as well as many more minor watercourses. Some rivers may have a mixture of main river and ordinary watercourse sections. In recent years most amendments to main river maps have been to change the designation of small stretches of rivers, rather than the whole river.
5. Section 194 of the Water Resources Act 1991 sets out the procedures for amending the Main River map. In practice a proposal to "enmain" or "demain" the whole or part of a river will be put by the Environment Agency to the relevant Regional Flood Defence Committee. If they agree, the proposal will be advertised locally by the Agency. Those interested may inspect the proposed amendments on a section of map drawn by MAFF cartographers and submit objections to the MAFF Minister. Any objections are considered by the Minister who decides whether or not to amend the map as proposed. As a consequence the process can be time consuming.
6. While the designation of "main river" and "ordinary watercourses" may lead to differences of approach, there are numerous reasons why such differences may exist; these reasons are set out below for the information of the Committee.
— All flood and coastal defence legislation is permissive, ie there are no obligations to provide defences, either to a given standard or at all. Within this overarching principle, there are powers for the Environment Agency to undertake flood defence measures on main rivers while on ordinary watercourses such powers reside with local authorities and internal drainage boards (IDBs). In the light of this, the operating authorities will establish their policy. In the absence of the operating authority assuming responsibility, it is retained by the riparian owner. The requirement under high level targets for operating authorities to produce policy statements will place their approaches to these responsibilities on the public record.
— A local authority or IDB may not have actively managed flood risk on an ordinary watercourse. However, there is no guarantee that changing its designation to main river, and bringing it under the Environment Agency, would automatically mean that the Agency afforded it any higher priority. The Agency would need to consider and prioritise its work programme within available resources according to their assessment of flood risk.
— There will also be differences in approach between, and possibly within, Environment Agency regions. The involvement of executive flood defence committees in setting priorities and budgets means that work which one committee is willing to undertake, another may not.
— Not all main rivers will be accorded the same treatment, even within an EA region. For example, after the Agency took control of rivers formerly within IDBs in its North West region in the 1970s, there are many very small watercourses designated as main river. The Agency clearly have to prioritise work programmes according to relative flood risk on these rivers and available resources.
7. In its Lessons Learned Report on the Autumn 2000 Floods, the Agency identified some confusion in the public mind about responsibility for dealing with flooding problems, which arose not only from main river and ordinary watercourses but also surface water and sewers. the Agency recommended that:
"the attribution of responsibility for the management of watercourses posing a significant flood risk needs to be reassessed in order to resolve current confusion".
8. It is clear that at the height of a flood there is confusion in the minds of the public about responsibility for measures to prevent flooding, and for responding to it. The key to sound action is planning, partnership and provision of information. Through the Ministry's High Level Targets operating authorities are required to provide policy statements which will indicate flood risk locally and how it will be managed, and to describe local partnerships; such statements are due to be completed soon. These statements will inter alia provide information on responsibility for management of watercourses which will provide a useful basis for determining if further action on attribution is necessary in specific instances. Such action would need to be defined in consultation with the operating authorities and other affected parties such as CLA, NFU and other riparian owners.
9. Following the establishment of the Ministry's High Level Targets, and the accompanying elaboration of the Environment Agency's flood defence supervisory duty, the Agency has been working with IDBs and local authorities in identifying "critical ordinary watercourses" ie ordinary watercourses which have the potential to put at risk from flooding significant numbers of people and property. The remainder are the most minor watercourses, with the lowest flood risks. However, if the Environment Agency was to manage flood risks on ordinary watercourses then they would need a transfer of resources from the current operating authority.
10. The Agency is also currently preparing a report on its assessment of the risk of flooding and action taken or proposed including inter alia adoption of a defence currently operated by another party. This should provide a basis for judging whether steps should be taken in order better to manage flood risk. MAFF is ready to work with the Environment Agency in considering the consequent actions including streamlining the approval to transfer of responsibility between operating authorities. This might usefully be linked to Catchment Flood Management Plans and the outcome of such re-assessment should be clearly communicated to those who reside in flood risk areas. The matter will be progressed as a part of the agreed action following recent and current reviews of flood defence.
Q56. Riparian owner responsibilities to maintain the condition of watercourses
11. As explained above, flood and coastal defence legislation is generally permissive—there are powers for the operating authorities to maintain rivers and flood defences but no obligations on them to do so.
12. If the operating authority does not undertake maintenance then this responsibility falls to the riparian owner, though that party is not normally obliged to do so. Legal requirements to carry out maintenance or repair work may exist by prescription, custom, tenure, covenant or by statute but these are rare.
13. The Water Resources Act 1991 and Land Drainage Act 1991 do not impose maintenance obligations on riparian owners but they do empower the operating authorities to serve notices on landowners requiring them to ensure a free flow of water through their land, for example by removing obstructions. There are also provisions under the Land Drainage Act 1991 for landowners to bring a case before the Agricultural Land Tribunal if they consider that their land has been injured by, for example, a neighbour's failure to maintain or cleanse ditches etc.
Ministry of Agriculture, Fisheries and Food,
Flood and Coastal Defence with Emergencies Division
April 2001
