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
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