Memorandum submitted by United Kingdom
Environmental Law Association (UKELA)
WATER WORKING
GROUP
The group welcomes the Government's decision
to launch a further enquiry into the planned implementation of
the Water Framework Directive ("WFD"). The terms of
reference put forward by the Environment, Food and Rural Affairs
Committee have been briefly addressed by the group below except
for the role that the Environment Agency will take in implementing
the WFD. This question raises difficult and controversial issues.
As a group representing water lawyers in private practice, industry,
government and agencies we would not be able to place before the
Committee a single view to which all sections of the group could
subscribe. The group would be pleased to assist the Committee
with further evidence that expands upon our submission if required.
By what means, and over what timetable, the Government
intends to implement the Directive in the United Kingdom
1. We note that the Government is already
behind schedule in its planned consultation on the implementation
of the WFD. It appears that the second consultation paper which
was due in March 2002 will not now be published until at least
the end of the year. We would like to stress the importance of
providing adequate consultation on detailed proposals for implementation
in order to give the public and stakeholders sufficient opportunity
to comment on them.
2. We understand that the Government is
proposing to keep the existing administrative system in place
as far as possible and that secondary legislation will be sufficient
to implement the WFD. We think it is important that any regulations
are carefully considered in the context of the draft Water Bill,
particularly in relation to the WFD's objectives on abstraction
management and sustainable water use.
3. The Government should take this opportunity
to carefully consider whether a simpler more rationalised system
which can effectively and efficiently deliver sustainable development
can be achieved rather than modifying the existing system.
4. In terms of the WFD timetable, we believe
it is vital that the necessary preliminary actions are taken now
to ensure that the WFD targets can be met. The Government's approach
and emphasis, in its implementation of the Directive should be
one of getting it right rather than in meeting deadlines.
5. It is important that compliance with
the programme of measures in any River Basin Management Plans
("RBMPs") is mandatory. The RBMPs must be clear, transparent,
outcomes focused and legally enforceable. Each RBMP should specify:
(i) the standards which are to be applied in relation to each
water body; (ii) the precise action which should be taken in order
to achieve those standards; (iii) the agreed priorities for actions
within the programme of measures; (vi) assign responsibilities
for implementing those actions and timeframes for delivery; (v)
the commitment of funding and resourcing mechanisms towards achieving
the actions and (vi) the penalty for non-compliance. Public consultation
will be a crucial element of RBMP development to ensure that an
agreement is reached with any many affected parties as possible.
6. The control of diffuse pollution cannot
be achieved without the application of command and control measures
as well as incentives. The Environment Agency should closely examine
how diffuse pollution control is being addressed in other jurisdictions,
eg pollution offset schemes being developed by the Environmental
Protection Authority in New South Wales, Australia.
What will be costs of implementing the directive,
how the costs will be met, how they will be apportioned and the
implications for water pricing policy
7. Any estimate of the expense required
to comply with the WFD should not include any outstanding costs
relating to compliance with existing legislation such as the Urban
Waste Water Treatment Directive, the Bathing Water Directive and
the Nitrates Directive. This includes any cost of monitoring or
information collection that would be required under other legislation.
8. We agree that the compensation costs
associated with revoking abstraction licences within the next
ten years are part of the Environment Agency's water resource
management function and as such should be met through a Scheme
of Abstraction Charges whereby abstractors with chargeable licences
fund the compensation payments.
9. It is unclear whether the Government
intends to institute arrangements to align the AMP cycles in the
future with the six yearly RBMPs. An alternative approach would
be to stagger any investment strategies so that they were approximately
two years in front of the target dates for the programme of measures
in order to drive them forward and make sure that deadlines are
met.
Whether the definitions of, for example, what
constitutes a river basin and significant human activity have
been clarified sufficiently to allow management plans to be formed
10. The definition of "river basin"
should not directly impact how management plans are formed. The
key factor for RBMP development will be maintaining flexibility
eg for a large river basin it may be preferable to have a number
of co-ordinated RBMPs which relate to different sub basins or
even individual water bodies.
11. Ascertaining whether anthropogenic pressures
are significant is a judgment which has to be made after analysis
of all the pressures affecting the particular catchment. We are
concerned that the definition of "significant anthropogenic
pressures" could introduce a de minimis level too
early in the assessment process and that cumulative impacts may
not consequently be sufficiently addressed.
12. It appears that definition of "low
levels of distortion resulting from human activity" is to
identify a de minimis level of anthroprogenic impacts which
is acceptable in water of good ecological status. At the end of
the classification process the Member State has to make an assessment
as to whether the total of anthropogenic impacts on a water body
is so low that it is nevertheless water of a good ecological status.
That implies a low degree of aggregate impact as being significant.
However, that aggregate impact will be made up of a number of
sources of impacts. In order to elect to omit data in relation
to any individual influence Member States have to make a determination
of significance at a very much lower level. It may be that the
appropriate criterion is that influence could not possibly have
a significant impact either individually or in combination with
other factors. This implies a true de minimis criterion.
13. It is important for the Environment
Agency to clearly state its intention regarding a working typology
to allow the classification of water bodies to proceed. SEPA has
stated that it will adopt multiple type-specific conditions for
each quality element within a water body type and we urge the
Environment Agency to take a similar decision as soon as possible
so that work on the RBMPs can commence.
14. In order for RBMPs to be produced, sufficient
baseline information on the type and the magnitude of significant
anthroprogenic pressures in each River Basin District must be
obtained. It is clear that there are a number of significant gaps
in the existing body of information. Comprehensive land and water
capability assessments need to be undertaken across the country
using a consistent and scientifically rigorous methodology. The
minimalist approach of coupling together partial and inadequate
existing data sources or relying on questionnaires as suggested
by the Environment Agency is wholly unacceptable.
15. In most cases such definitions will
need to be revised as implementation evolves. It is unlikely that
there will ever be a time when definitions will apply indefinitely.
There must be a continuous process of application, evaluation
and improvement. Management plans will have to be formed now,
based on best available knowledge and the clearest definitions
that can be formulated. The difficulty will be in setting up a
flexible system with an apply—monitor—evaluate—modify—apply—etc.
approach.
What the tangible benefits of the Directive are
likely to be and whether its objectives can be achieved in a cost
effective way
16. The EU's approach to water law over
the last 20 years has been characterised by a lack of integration
and piecemeal and occasionally conflicting policies which has
been aggravated by the often inconsistent implementation of directives
by Member States. An important benefit of the WFD will lie in
its use as strategic legislative framework designed to tie together
various strands of water law. The Directive also provides a window
of opportunity to set the foundations for delivering sustainable
development because of its integrated approach towards water management
and conservation.
17. The WFD provides the means of ensuring
that Member States fulfil outstanding commitments under other
directives.
18. The WFD introduces a number of innovative
ways to address water management initiatives. For the first time,
groundwaters and surface waters will be considered together at
an EU level. The WFD also provides a framework for the co-ordination
and application of other EU water and quality initiatives through
the setting of environmental quality objectives. It introduces
a new combined approach to pollution control through integrating
emission limit objectives that target point source pollutants
with environmental quality objectives that monitor the receiving
environment and target diffuse pollution. It also forces an examination
of anthroprogenic pressures at catchment level.
19. Consistent implementation is vital to
the success of the WFD and the Government should adhere and continue
to participate in the Common Implementation Strategy as far as
possible.
20. One obvious omission from the WFD in
light of the terrible flooding throughout Europe in the last months
is the fact that emergency planning and water quantity management
is currently insufficiently legislated for in any detail at an
EU level.
21. The question should not be: can objectives
be achieved in a cost-effective way. The objectives will have
to be met eventually—the question should be what is the
most cost-effective way to deliver the largest impact in the shortest
time. The AMPs have been successful and should help to drive forward
the programmes of measures in the future.
22. The encouragement of good environmental
practice driven through binding codes of practice should lead
to economic benefits in the long-term.
UKELA Water Working Group
20 September 2002
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