Memorandum submitted by the Royal Society
for the Protection of Birds (DFWMB 09)
SUMMARY
1. The RSPB dioes not believe there is anything
in the draft Bill that sets or shifts the balance between environmental
protection and flood risk reduction. This will remain a matter
of public policy.
2. The Bill does attempt to unlock barriers to
win-wins for the environment and flood risk by referring to maintaining
or restoring natural processes and providing a framework that
will encourage the use of Sustainable Urban Drainage Systems.
3. The RSPB welcomes the proposal for a new Environmental
Works power (Clause 41). This will help break down barriers to
cross functional working that exist within the Environment Agency.
4. We also welcome the inlusion of a test
of "no significant risk" to be applied before these
powers are used, however we believe the proposed wording requires
further scrutiny to ensure this test can be applied intelligently.
5. The RSPB believes that embedding Water
Framework Directive (WFD) compliance in the legislation could
help reduce delays and costs as well as ensure existing environmental
obligations are met. However the current wording is very weak.
6. We support proposals to give the Environment
Agency new powers to restore hydromorphology. These powers should
be introduced as a priority to ensure complete transposition of
the WFD.
7. The RSPB believes the restrutctuing of
Internal Drainage Boards (IDBs) is long overdue. In particular
we would like to see the final Bill take forward provisions to:
— Re-cast IDBs as Local Flood Risk
Management Boards.
— Restructure IDB membership to reflect
the broad objectives that Defra and the Environment Agency have
set for flood risk management.
— Rationalise central governemnt support
for Local Authority funding of IDBs by phasing out the Special
Levy element of the Revenue Support Grant and introducing a new
block grant form the Environment Agency.
— Provide the Secretary of State new
powers to require amalgamation of IDBs in line with Goverment's
preferred policy.
Does the draft bill achieve the right balance
between protecting the environment and protecting homes and businesses
from flooding?
1. The RSPB believe that the question presents
a false dichotomy. While the Bill includes important provisions
to enable the Agency to carry our environmental improvement works
these exist on a purely permissive basis. Decisions about when
to use them, and at what cost to the EA's budget, are questions
of public policy and will be defined by, amongst other things:
— existing domestic and European legal
obligations,
— the Environment Agency's strategy for
flood and coastal erosion risk management (FCERM) as required
under clause 15 of the draft Bill;
— the economic and environmental appraisal
methodologies used to appraise schemes; and
— outcome measures used to prioritise
investment decisions.
2. Although the Bill does not define a balance
between flood risk management and environmental protection, with
the trade-offs that implies, it does make a welcome attempt to
unlock barriers to potential win-wins. For example the inclusion
of maintaining or restoring natural processes as an example of
work that may be done in the course of Risk Management (Clause
7 of the Bill).
3. By reinforcing the legitimate link between
works that might deliver environmental improvement and risk reduction
the draft Bill underpins ongoing work to implement the recommendation
of Sir Michael Pitt's Inquiry that more should be done to enable
working with natural processes. It also reflects Defra's vision
for FCERM set out in Making Space for Water which states
"...The results of the strategy will be seen on the ground
in the form of more flood and coastal erosion solutions working
with natural processes...".
4. Another win-win is the move to provide
a legal framework to encourage and enable the use of Sustainable
Urban Drainage Systems (SUDS). The RSPB believes SUDS have a vital
role in managing surface water flood risk to people, protecting
the environment by reducing pollution loads to surface and groundwater
as well as providing valauble wetland habitat in urban landscapes
that have become increasingly arid and inhospitable to wildlife.
5. As mentioned above, the Bill does introduce
a new Environmental Works provision (Clause 41 of the Bill) which
will be used on a permissive basis. The RSPB believes that by
providing the FRCM function greater clarity over the role it can
play in undertaking environmental enhancement the Bill will help
break down cultural and legislative barriers to cross-functional
working that have persisted since the creation of the Environment
Agency.
6. It is important to note that Clause 41
contains an explicit "check" to ensure that any works
carried out do not create or increase potential harmful consequences
as described in the definition of risks (Clause 6.3 of the Bill).
This is designed to ensure environmental improvements works will
not increase the flood or erosion risk faced by individuals or
communities, an intention the RSPB supports.
7. That said, unlike urban developments,
many wetland habitats can only be created in floodplains and current
Environment Agency policy has often required expensive remedial
works to offset marginal loss of floodplain storage even where
the increase in risk is immeasurably small. We would like to the
see the Environment Agency given the opportunity to take a risk
based approach in such circumstances and it is not clear that
the current wording of Clause 41 allows them to do this.
8. The Bill also provides a link to the
Water Framework Directive. The RSPB supports this as an entirely
sensible approach to ensure that compliance is embedded from strategic
planning through to scheme design in a way that will minimise
uncertainty, conflict, costs and delays. That said, the provision
that the Environment Agency must "...have regard to the desireability.".
to compliance with the Water Framework Directive (WFD) is extremly
weak and should be strengthened.
Are the proposals contained in the draft bill
necessary, workable, efficient and clear? Are there any important
omissions in the Bill?
9. Hydromorphology: The RSPB welcomes the
commitment to introduce new powers for the Environment Agency
to undertake hydromorphological restoration of water bodies in
Section 5 (issues not covered by draft Bill provisions). There
is a weight of legal opinion that indicates the Agency's current
powers do not meet the minimum requirements of Article 11.3 of
the Water Framework Directive which sets out basic measures that
include:
...measures to ensure that the hydromorphological
conditions of the bodies of water are consistent with the achievement
of the required ecological status.
Article 11.3[i]
10. While we welcome the proposal for new
powers we are concerned that the draft criteria for their use
may not be entirely compliant with the aims and objectivs of the
WFD (para. 669 of the consultation). In particular the WFD tests
for defering action are based on considerations of technical feasibility
and disporportionate costs, not cost-effectiveness (2nd bullet)
or resource availability (4th bullet).
11. Floods Directive: We do not share the
Governemnt's view that the requirements of the Floods Directive
reflect current practice and that its requirements can be met
by compiling existing outputs. In particular the exisitng plans
do not make links between FCERM and the WFD required under Article
7(3) of the Floods Directive and simply ensuring maps are compatible
(para 286 of the consultation) will not be sufficient.
12. Non Flooding Provisions: This inquiry
has a clear focus on the flooding provisions of the Draft Flood
and Water Management Bill. As such we have limited our detailed
comments to the questions being raised. However there are a host
of Water Managment reforms that would contribute to the sustainability
of the water environment and water industry if the the decision
is made to introduce the Bill in its entireity. These include:
— Removing the statutory limit on fines
that can be imposed on polluters under section 85(6) of the Water
Resources Act 1991.
— Introduce a statutory requirement
to review deemed consents that were used to hurriedly regularise
illegal discharges without proper appraisal in the lead up to
water industry privatisation.
— Introduce a new Water Efficiency
obligation on the water industry to incentivise water saving.
— Introduce a duty on Ofwat to promote
sustainable climate change mitigation and adaptation.
— New powers for the Secretary of State
to introduce General Binding Rules for the control of diffuse
agricultural pollution.
— New powers to protect public interests
in the sale of water company land.
— A duty on water companies to manage
their landholding to protect and enhance raw water quality.
— Abstraction charging that reflects
environmental damage.
— A move to time limited status for
all abstraction licenses.
— A statutory footing for Catchment
Restoration Funds.
Is the proposed institutional framework appropriate
and sufficient for the enforcement of measures contained in the
draft bill?
13. The RSPB is particularly interested
in proposals for the reform of Internal Drainage Boards (IDBs).
IDBs are statutory bodies with a history rooted in the pursuit
of agricultural land drainage. While some progressive drainage
boards have embraced change, overall the accountability of IDBs
to central government policy remains poor, as does their environmental
performance.
14. We therefore welcome the proposal to reconstitute
IDBs as Local Flood Risk Management Boards. However, the big risk
is that these Local Flood Risk Management Boards simply operate
as IDBs under a different name unless action is taken to tackle
their underlying culture. It is vital, therefore, that reconstitution
goes hand in hand with the more fundamental reforms of membership,
accountability and funding discussed in Section 3 of the consultation.
In particular, the RSPB would support:
15. Adjusting the membership of Internal
Drainage Boards: The RSPB would welcome an overhaul of the rules
dictating IDB membership (para 388-391 of consultation). The detail
will need working up but if IDBs are to become Local Flood Risk
Management Boards it is vital that their membership reflects the
broader objectives that Defra and the Environment Agency have
set for flood risk management.
16. Reform of Special Levy payments from
Local Authorities: We believe the current Special Levy raising
powers of IDBs is out of date and fundamentally flawed. The lack
of transparency about how rates are set and what the money is
spent on means there is a risk Local Authority (LA) funds being
used to cross-subsidise agricultural works. At the same time,
the arcane rules that define the amount of Revenue Support Grant
allocated to support LA Special Levy is based on historic spend
rather than an objective risk based assessment of need. As such,
there is no guarantee that central Government money from CLG is
being spent to maximum effect.
17. To address these problems we would support
a move to a contractual or agency relationship between LAs and
IDBs to ensure greater clarity of what money is being spent on
(para. 417-422 of consultation). We would also cautiously support
a clearer role for Local Authorities in the prioritisation of
funding provided the correct checks ensure this is consistent
with the Environment Agency's national FCERM policy (para. 412-416
of consultation).
18. However, we would go further than the
consultation and suggest that LA funding for flood risk management
through revenue support grant should be phased out and replaced
by payments administered by the Environment Agency. This would
ensure a consistent, equitable and risk based approach to the
way central Government money is allocated to all FRM operating
authorities while leaving the option open for LAs to "top-up"
funds where local priorities are identified.
19. Powers to make regulations determining
the size shape and structure of Internal Drainage Boards (para
392-400 of consultation): It is entirely appropriate that the
Secretary of State is given the power to ensure progress on IDB
amalgamation is not derailed by local interests that tend to dominate
IDB membership.
May 2009
| 
