Memorandum submitted by Water UK (ELD
17)
OVERVIEW—EXECUTIVE
SUMMARY
1. The Environmental Liability Directive
(ELD) contains broad and not always clear requirements for the
enforcement of EC environmental law, which could have major financial
implications for many industrial and utility sectors across the
UK.
2. We therefore believe it is important
that the Government, in consultation with all affected stakeholders,
transposes the ELD into UK law in a manner which:
(a) is clear, and integrates the requirements
of the Directive with existing domestic legislation without duplication
and in an unambiguous manner; and
(b) is cost-effective, and balances costs
and benefits, so as to protect consumers from being burdened with
costs that are not strictly necessary for achieving the purposes
of the Directive.
WATER UK COMMENTS—EVIDENCE
Water UK
1. Water UK represents all the water and
sewerage companies and authorities of the United Kingdom. It tries
to ensure that EC and UK policies and legislation affecting the
water industry are developed and implemented in ways that are
cost-effective, and balance costs and benefits.
2. The purpose of this is to try and ensure
that the water and sewerage charges payable by customers, and
the resulting costs that have to be borne by consumers, are no
higher than are strictly necessary.
Consultations
3. The transposition of the ELD into UK
law gives rise to difficult issues on how its requirements can
best be integrated into existing UK environmental law without
duplication and in a cost-effective manner. Taking these very
real difficulties into account, we believe that the Government's
consultation paper does an excellent job in explaining the issues
and the options available. We have also found helpful the open
and thorough manner in which Government officials have consulted
and considered the views of different stakeholders.
Discretion, Permit and State of the Art Defences
4. The ELD allows member states a discretion
in relation to a number of issues, which include whether to provide
a permit and/or state of the art defence:
Permit Defence
5. We believe it is right that there should
be a permit defence for the following reasons:
(a) the purpose of permits is:
— to enable the competent/enforcement
authority to determine the extent to which it is acceptable for
water to be abstracted and polluting discharges to be effected,
taking into account all the elements of sustainable development—economic,
social and environmental; and
— this so that abstractors and
dischargers may know what they may do without incurring liability
under directives;
(b) it would therefore be wrong for businesses
and others to incur liability under the ELD when complying with
a permit issued by a competent authority.
State of the Art Defence
6. Similarly it would seem wrong that a
business should be held liable under the ELD for using a substance
or process which at the time did not appear to pose any threat
to the environment.
EC Protected Biodiversity and SSSIs
7. We believe that the way in which the
Government proposes transposing the ELD into UK law accurately
reflects the requirements of the Directive -
(a) the ELD imposes liability for "damage"
to "protected species" and "natural habitats";
(b) it defines protected species and natural
habitats by reference to the Birds Directive 79/409/EEC and the
Habitats Directive 92/43/EEC;
(c) these Directives require the creation
of special protection areas (SPAs) and special areas of conservation
(SACs) for the protection of specified birds (including their
migratory requirements), animals and habitats ("Natura 2000
Sites");
(d) these requirements have been transposed
into UK law by the Conservation (Natural Habitats etc) Regulations
1994 and the Wildlife and Countryside Act 1981, with (in relation
to Natura 2000 Sites) the Habitats Regulations building on the
Act's requirements for the creation, maintenance and protection
of sites of special scientific interest (SSSIs) and their adjoining
areas;
(e) the ELD thus supplements (and does not
derogate from) the requirements of existing legislation; and
(f) further the way in which the Government
proposes transposing the ELD into UK law by reference to "damage"
to Natura 2000 Sites, including the effect that such damage may
have on the conservation status of species and habitats outside
Natura 2000 Sites, seems accurately to reflect the requirements
of the ELD and the Directives to which it refers.
Biodiversity Action Plans and SSSIs
8. For the above reasons, implementation
of the ELD in the manner proposed by the Government ought not
to adversely affect the Government's target for the improvement
of SSSIs, but rather assist by increasing the ability of competent
authorities to recover compensation from those who pollute SSSIs.
Timescale for Implementing the ELD
9. We believe that the Government should
also consult on the regulations by which the ELD will be transposed
into domestic law, this with a view to ensuring that the transposition
is effected in a practical and cost-effective manner.
10. However, subject to this, we believe
that every effort now needs to be made by all Government Departments
to transpose the ELD into UK law as soon as practicable.
Environment Agency, Natural England and NGOs
11. The ELD of course requires member states
to enforce its provisions through nominated competent authorities
(CAs), which in England are likely to include the Environment
Agency and Natural England. The ELD also enables NGOs to make
complaints against CAs in relation to CAs' enforcement of the
ELD.
12. In this connection, the ELD further
requires CAs to recover their costs from polluters; therefore
the CAs should be able to recover a major part of their costs
from polluters. Nevertheless, the ELD requires Governments to
ensure that the CAs are funded in relation to those costs (including
remediation costs) that they are not able to recover from polluters.
May 2007
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