Memorandum submitted by the Institution
of Civil Engineers (DFWMB 04)
INSTITUTION OF
CIVIL ENGINEERS
The Institution of Civil Engineers (ICE) is
a UK-based international organisation with over 75,000 members
ranging from professional civil engineers to students. It is an
educational and qualifying body and has charitable status under
UK law. Founded in 1818, the ICE has become recognised worldwide
for its excellence as a centre of learning, as a qualifying body
and as a public voice for the profession.
EXECUTIVE SUMMARY
The Draft Flood and Water Management Bill does
address many of the key recommendations in the Pitt Review. However,
there are key areas where more work is required. The most important
are:
— Duties and Responsibilities:
Further work is needed to clarify duties and responsibilities
of the different stakeholders.
— Funding: The draft bill places
additional responsibility on Local Authorities. However, the figures
quoted for annual expenditure by LAs appear too low, particularly
in light of the revised Climate Change scenarios included in the
Pitt Review.
— Urban Design: The role of
urban design in managing flood risk needs to have greater prominence
in the bill.
Further details about these points can be found
within the following document.
1. Are the powers in the Draft Flood and
Water Management Bill sufficient to enable full implementation
of the Pitt Review recommendations?
The bill provides for the EA to have a strategic
overview of flood risk management in England and Wales and Local
Authorities (County Councils and Unitary Authorities) to lead
flood risk management at a local level. It is not clear however
how the various responsibilities will now fall on the different
stakeholders. For example, sewerage undertakers (water companies)
will be responsible for the effectual drainage of property. This
traditionally (and in case law) has been limited to storms up
to those of a return period of around 30 years, and is limited
to areas within the curtilage of properties. Highway authorities
will presumably retain the responsibility for draining highways
but it is unclear to what standard. It is also unclear who will
be responsible for more extreme events, though we assume it will
be Local Authorities. A unified piece of legislation would deliver
a simplified approach and would no doubt ensure the widespread
uptake of SUDs as well as other flood preventative methods. It
would also improve the ability of those wanting to provide an
engineering proposal, as the level of legal expertise needed in
the current system is a barrier.
Further work is needed to clarify duties and responsibilities
of the different stakeholders. Until these are made clear it is
unlikely that the bill will contain sufficient powers to implement
the Pitt Review recommendations.
2. Does the Draft Bill achieve the right
balance between protecting the environment and protecting homes
and business from flooding?
The Bill quite rightly sets the delivery of
the requirement of the Floods Directive in the context of the
requirements of the Water Framework Directive. There will also
be a need to adapt to the likely effects of climate change and
to deliver mitigation measures to reduce carbon impacts. Current
estimates are for an increase in carbon emissions in the water
industry in excess of 40% directly as a result of addressing WFD
drivers. Also the Bill appears not to fully address the challenges
set out in the Foresight report[18]52
in respect of potential increases in flood risk. There is a real
danger that over emphasis on environmental protection inhibits
our ability to meet the challenges of climate change adaptation
and carbon reduction such that the long term impact on the environment
due to climate change is worse than the short term impacts of
extreme event flooding. The focus should be on sustainability
that effectively balances the three drivers of environmental protection,
affordability and social acceptability.
We are pleased to see some recognition in the
draft bill that effectively managing flood risk on an area wide
basis may mean that flood risk has to increase in some areas.
We trust that the potential of this will be fully realised. For
example, the highly beneficial effects of providing flood defences
to critical infrastructure in the flood plain may be dissipated
if there is an inflexible requirement of providing compensating
storage. Also, the general issue of managed retreat has not been
fully addressed, whether applied to coastal areas, or to inland
areas (for example to create sacrificial flood storage areas in
urban areas). If managed retreat is to become part of the flood
risk management toolkit then issues of compensation must be effectively
addressed.
3. Are the proposals contained in the draft
bill necessary, workable, efficient and clear? Are there any important
omissions in the Bill?
Almost all the recommendations are necessary
but many do not go far enough. There is a distinct lack of clarity
over responsibilities and sensible achievable performance targets,
and whilst it might be reasonable to place targets within subsequent
guidance or regulations it is difficult to judge the potential
effectiveness of the bill without these. The Foresight report,
referred to above, originally identified that the potential effects
of climate change would be a substantial increase in urban flood
risk if traditional approaches to urban flood risk management
were retained. Indeed the summer 2007 floods were an excellent
example of such consequences. Even with a range of integrated
measures, flood risk was still shown as rising in the future.
It is difficult to see therefore how with minimal additional investment
the target of 43% reduction in flood risk in urban areas is to
be achieved. Local authorities are to be placed at the centre
of the proposed strategy and are to be given substantial new responsibilities.
We are unconvinced that the savings claimed from a reassignment
of responsibilities for private drainage and reduced costs of
flood risk associated with improved management will be achieved
at anything like the scale that would be needed to fund these
new responsibilities and allow the necessary building of capability
and capacity. In addition the figure quoted for average annual
expenditure on flood risk management measures by local authorities
appears to be very low. As such we believe that many Local Authorities
will be unable to progress effective local flood risk assessments
and flood risk management measures.
If local authorities are to adopt and maintain SUDs
then the revenue source, suggested as coming from the savings
made by the transfer from of private sewers to the Sewerage Companies,
may have to be reviewed. It is also unclear if savings can be
made by improving current flood risk management before investment
in delivering better flood risk management has been implemented.
4. Is the proposed institutional framework
appropriate and sufficient for the enforcement of measures contained
in the draft bill?
When considering the institutional framework
a distinction needs to be made between managing frequent and lower
impact flood events from less frequent and higher impact (extreme)
events. This is a shortcoming of the draft bill in general. It
leads, for example, to the belief that wide-scale implementation
of SUDs will address future flood risk from extreme events. SUDs
by themselves are unlikely to have a significant effect on extreme
event flooding and that needs to be recognised (though they can
have a beneficial effect during less severe events, and during
these also address some of the water quality issues).
We are concerned that the efficiencies gained in
past years by water companies in tackling flood risk from higher
frequency events may be dissipated by adding an extra layer of
intervention. It is not clear how the lead role of various Local
Authorities managing local flood risk across a water company area
will be reconciled against the regulatory role of OFWAT, nor how
one will be coordinated with another. The institutional framework
with the EA in the strategic overview role is welcome, but duties
and responsibilities given to local authorities should be explicit.
Flood risk arising from less frequent and more
severe events also needs to be adequately dealt with. It is these
events that are the subject of the Pitt Review recommendations
and their effective management must be approached within the context
of urban design. Much is made in the Bill of the role of effective
planning in creating urban areas that are more resilient to extreme
flood events. There is a danger that this will be interpreted
as applying to new development only. Indeed a number of completed
strategic flood risk assessments have failed to realise their
full potential by focusing solely on new development. Even parts
of the draft Surface Water Management Planning Guidance errs in
this direction. The major challenge faced (as demonstrated in
the 2007 floods) arises from extreme event flooding of existing
urban areas. The role of urban design is central to this and needs
to have much greater prominence in the bill. There is little evidence
to date that new developments are fully taking this on board,
or how it might be retrofitted into existing areas. This requirement
should be set out as an explicitly responsibility of the EA (strategically)
and the Local Authority (locally).
We welcome the statutory protection that is
to be given to flood risk infrastructure in the draft bill. As
a part of future strategy, it will be important to identify, create
and maintain surface flood pathways and sacrificial storage areas
in urban areas (as an integral part of urban design). The same
measure of protection should be given to these as are to be given
to flood management infrastructure.
5. Is the balance struck between what has
been included on the face of the draft bill, and what goes into
Regulations and Codes of Practice right?
The National Standards referred to within the
Bill will need to go through considerable consultation which should
be conducted concurrently with the development of the draft Bill.
It is important that the bill avoids quoting numeric performance
criteria within the legislation. This should be left to regulation
and/or guidance to ensure the bill's longevity. However it is
important to recognise where quantifying future performance requirements
will be necessary. On a more general point, it is important that
the bill includes the necessary duties within statute and does
not merely rely on permissive powers or assigning responsibilities
through regulation. As stated above, we believe that it would
be valuable at this stage of consultation to draft a framework
that clearly sets out the responsibilities of each stakeholder
and the expected performance standards (or range of standards)
that is expected. This would allow effective debate as part of
the consultation process, and enable an early start to be made
on appropriate regulation and guidance. It would also ensure that
the necessary duties and responsibilities for delivery were accurately
incorporated within the bill and reduce the need to subsequently
test the bill through the courts.
The bill will also serve to translate the requirements
of the EU Flood Directive into English law. It is a great pity
that the opportunity to include flooding from the failure of sewers
has been missed. There is now a danger that the very important
role that drainage systems play in managing urban flood risk,
including during extreme events, will be overlooked and as such
they will be excluded from future flood risk assessments and flood
risk management measures. If drainage and sewerage systems are
to play their full role in flood risk management then we see no
logical reason why their contributions and effects should be excluded
in this way.
6. What are the likely financial resource
implications of the draft bill?
The findings of the 2004 Foresight Report on
Climate Change, Floods and Coastal Defence were revisited
as part of the Pitt Review. This work found that these findings
still held and if anything painted a worsening future scenario.
The draft bill implies minimal increase in financial investment
in the future delivery of flood risk management at a local level.
Placing local authorities in a lead local role will create significant
challenges in building the necessary capacity and capability,
as set out in the final report of the Pitt Review. The new responsibilities
placed on local authorities will require them to resource up or
their retrain existing staff. In the ICE's 2008 report Flooding:
Engineering resilience we raised concerns that local authorities
and the EA may not be able to offer the remuneration to recruit
and retain the numbers of staff required.[19]
53 It is not clear if this funding issue has been fully addressed.
Moreover, as mentioned above, we believe that the net costs of
future flood risk intervention measures and the adoption of SUDs
have been severely underestimated.
If the Floods and Water Management Bill is to
adequately address the recommendations of the Pitt Review in the
context of future climate change then the necessary financial
requirements must be recognised. The Foresight Report, as updated
for the Pitt review, would make a useful starting point for this.
7. Has the Government analysed the effects
of the draft bill adequately, and has it taken sufficient account
of consultation?
There has been a genuine attempt to address
many of the important recommendations of the Pitt Review in drafting
this bill. Further work is still required to understand how the
various recommendations will impact on flood risk management practice
on the ground however. This work should now be undertaken in parallel
(and be informed by) the consultation process. Many of the messages
that have come out of the various reviews since the 2007 floods
appear to have been taken into account, and indeed some important
measures have already been implemented. This next consultation
period will be important and it remains to be seen how the results
of the current consultation will be taken into account in the
final drafting of the bill.
Although SUDs are a useful tool in the improvement
of flood and water management they cannot be relied upon alone.
Improvements in urban design relating to both existing and planned
buildings must be implemented if we are to manage extreme flooding
events. Although the National Standards monitor the value of SUDs,
it is important that an agreed national framework of performance
standards for all drainage is established.
However, one of the key recommendations that
comes out of the many review reports is the need to rationalise
English law to address and simplify the complexity of responsibilities
(and gaps in responsibilities) that have established themselves
in law over the years. The draft bill misses this important opportunity
preferring instead to rely on repealing individual elements of
legislation and case law and amending the duties and responsibilities
of different stakeholders.
May 2009
18 52Office of Science and Technology, Foresight
Flood and Coastal Defence Project, www.foresight.gov.uk (2004). Back
19
53ICE (2008), Flooding: Engineering resilience, London. Back
| 
