Lack of Democratic Mandate
19. We have considered the arguments made about
the disparity between the designation of the Environment Agency
as sole competent authority under the Directive and its perceived
lack of a democratic mandate. We are not persuaded by them, particularly
since most of the alternatives proposed would require yet another
layer of government to be created to oversee river basins. Instead,
we believe that mechanisms which allow proper consultation with
the public and other relevant bodies will respond to concerns
about the democratic legitimacy of the process (paragraph 66).
The Government welcomes the Committee's acknowledgement
that no additional administrative layers should be created. The
Government remains firmly of the view that, as the Environment
Agency is accountable through Ministers to Parliament, the Agency's
role as competent authority will not create a democratic deficit.
The Government agrees that proper consultation mechanisms, as
well as arrangements for actively involving interested parties
in implementation of the Directive, will be an important way of
responding to concerns about the democratic legitimacy of the
implementation process.
Integration and Powers
20. We strongly recommend that the Government
begin now to develop the arrangements, agreements and protocols
which will be needed to ensure that the river basin management
plans drawn up by the Environment Agency as competent authority
carry sufficient force - and to ensure that the Agency is required
to take into account the views of others in drawing up the management
plans. Clarity about such matters is in any event essential, but
settling the details of these administrative arrangements sooner
rather than later will allow shortcomings to be identified and
addressed (paragraph 70).
The Government agrees that river basin management
plans must carry sufficient force. It therefore proposed in its
second consultation paper that the Agency would be under a duty
to prepare such plans and that the Secretary of State will have
an explicit role in approving plans. It is also proposed that
the Agency would be under a duty to consult at key stages of plan
preparation as well as actively involving interested parties generally.
As noted above (recommendation 18), the Government
intends (through regulations transposing the Directive) that in
exercising its functions the Agency will be under a duty to do
so in a way which gives effect to the requirements of the Directive.
In addition, the Government intends, through regulations, to place
other bodies with relevant functions under such a duty. To complement
these regulatory measures, in order to be sure that the influence
of other bodies with relevant functions are fully reflected in
the measures and plans required by the Directive, both the Regulations
and guidance to the Agency will set out which bodies need to be
involved and which functions will need to be taken into account.
21. But until the administrative arrangements
which will enable the Environment Agency to function as the competent
authority have been properly explored, Defra cannot be certain
that primary legislation is not required. We therefore repeat
our recommendation that possible shortcomings in such administrative
arrangements be identified as early as possible, and we recommend
that the Government keep an open mind about the need for primary
legislation to address such shortcomings. To address this issue
the Government should publish a legislative impact study on the
requirements of the Directive. In particular it should examine
how it relates to existing law in planning, abstraction controls,
discharges and flood defence requirements. It should also address
the question of whether any new laws are required, particularly
in areas such as groundwater management (paragraph 71).
The Government believes that secondary legislation
is a suitable and well established method for implementing EC
legislation.
The process for identifying the administrative arrangements
to enable the Agency to function as the competent authority is
well in hand. The Government's first consultation paper proposed
the Environment Agency as competent authority and the boundaries
of river basin districts. This approach was confirmed in the Government's
second consultation paper in October 2002. That paper also included
extensive proposals covering regulatory arrangements for river
basin planning. The Environment Agency has also consulted on technical
issues. A third consultation is due later this year, covering
draft regulations.
In terms of legislation, the Government is well placed
to transpose the Directive in England as the existing legislative
framework already provides many of the powers needed to comply
with the Directive. In the Government's first consultation paper,
therefore, views were invited on the proposed use of secondary
legislation (though some provisions of the Water Bill will in
practice assist in transposing the Directive). Responses to that
consultation generally supported this proposal. This approach
was confirmed in the second consultation paper (October 2002)
which also asked invited views on the Government's assessment
of the gaps in existing legislation and how they might be filled
(para 1.3). These proposals also covered groundwater management,
abstraction licensing, discharges, as well as links with flood
defence and planning. The paper went on to explain that the third
consultation will include proposed draft regulations and transposition
notes setting out how the regulations transpose the main elements
of the Directive (para 15.1).
A Pilot River Basin Management Plan
22. We welcome the Government's belated decision
to conduct a pilot in the Ribble valley basin. We trust that the
pilot will be comprehensive, and not just a token exercise. We
also trust that the results of the pilot will be published. We
seek from the Government confirmation that the study will fully
address the following points; clarification of the concept of
good water status and the extent of the improvements necessary
to achieve this; provision of an economic assessment of all aspects
of implementing the Directive in the Ribble basin; trialing of
measures designed to address different aspects of diffuse pollution;
an assessment of the links between biodiversity and river basin
plans, including the role of wetlands and salt marshes; and the
means whereby all interested parties can be fully involved in
the implementation process. We recommend that the lessons learnt
in the Ribble valley inform decisions about the administrative
arrangements concerning the Environment Agency's role as competent
authority (paragraph 73).
The Ribble pilot river basin project will formally
test elements of the Common Implementation Strategy guidance on
the 'Planning Process' and 'Public Participation', as part of
the EU network of pilot projects. The UK Pilot will also test
emerging Environment Agency guidance and tools to support implementation
needs. This project will develop the Agency's and stakeholders'
understanding of the likely impacts of implementation of the Directive,
and will aid the Agency in refining its administrative role. A
report on UK testing of the strategy guidance will be submitted
to the Commission by their July 2004 deadline.
Key regional and national stakeholders have already
been engaged in defining and developing the project, which will
explore methods and techniques for local stakeholder engagement
in the planning process. The project will draw on expertise from
the pilot's external partners, particularly for the work on public
participation.
23. Many of our recommendations will inevitably
lead to greater involvement by local government in the process
of implementing the Water Framework Directive. Nevertheless, we
recommend that the Government take further urgent steps to encourage
local authorities, as well as all affected sectors of industry,
to become involved in discussions about the implementation of
the Directive (paragraph 75).
Defra agrees that local authorities will have an
important role to play, particularly through their land use planning
functions. We are discussing with the Local Government Association
(LGA) how they can advance awareness of the Directive in local
government. Following that meeting, LGA have developed an outline
strategy to raise awareness and have written to a range of Local
Authority advisors to seek their input at an initial meeting to
be arranged with the Environment Agency and Defra. They have also
agreed with the Environment Agency to meet to explore wider issues
arising from the WFD and new approaches to strategic land management.
The Environment Agency are a key interface with local
government, both directly and through their Regional Environment
Protection Advisory Committees (REPACs). REPACs have a generic
format with five places offered for 'local authorities', although
how they are distributed (between Regional Assemblies and local
authorities) varies between the regions. These Committees have
already been invited to give their views on the Agency and Defra
consultation material on the Directive.
Defra's stakeholder group and sub-groups (recommendation
1 and 16), Ribble pilot (recommendation 1 and 22) and the updated
Regulatory Impact Assessment (recommendation 1 and 27) are all
relevant here.
24. We recommend that Defra begin work now to
determine how best to interest the public in the Water Framework
Directive. Information should be provided both nationally, in
terms of the reasons for, and potential impact of, the Directive
as a whole, and locally, in the context of river basin management
plans (paragraph 76).
The Government's work with stakeholders to see how
best to communicate the key messages of the Directive to a wider
audience are discussed in response to recommendations 1 and 16.
The Government has also proposed that the Environment
Agency will have a duty to encourage the 'active involvement'
of interested parties in each of the proposed river basin districts.
The Agency has a strong track record in consultation and involving
stakeholders - particularly relevant to the Water Framework Directive,
for example, are the catchment management abstraction strategies.
The Government believes that this track record will ensure the
delivery of the public participation requirement of the Directive.
The Agency's public participation strategy, on which
Defra will want to work closely with the Agency, is relevant here,
as are the lessons to be learnt from the Ribble pilot. So by this
process, by the time river basin planning reaches its more developed
stages, for example through the publication of draft plans by
the end of 2008, the groundwork for active involvement of interested
parties will have been done within the framework of a worked out
strategy.
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