Memorandum submitted by Natural England
(DFWMB 15)
1. INTRODUCTION
1.1 Natural England is a non-departmental
body established under the Natural Environment and Rural Communities
Act 2006.
1.2 It is responsible for ensuring that
England's unique natural environment, including its flora and
fauna, land and seascapes, geology and soils are protected, managed
and improved for the benefit of present and future generations,
thereby contributing to sustainable development.
2.0 SUMMARY OF
NATURAL ENGLAND'S
COMMENTS
2.1 Natural England welcomes the draft Flood
and Water Management Bill's proposals for a restructured flood
and coastal erosion risk management framework, and the revised
roles for flood operating authorities with enhanced powers to
engage in a broader range of activities, including environmental
works.
2.2 Natural England is concerned, however, that
the draft Bill fails to be more specific about the duties of these
authorities and to provide clear direction for a new approach
to flood and coastal erosion risk management. We are also concerned
that, unlike the draft Flood Risk Management (Scotland) Bill,
it contains no explicit duty for sustainable flood risk management,
and fails to fully embrace the Floods Directive's advocacy of
wider catchment solutions and the Pitt Review recommendation for
greater working with natural processes. As a result we are not
confident that the Bill as drafted will establish a regime that
delivers sustainable flood and coastal erosion risk management
that works with the natural environment, as sought by the Pitt
Review, as required by the Floods Directive, and as anticipated
by the Government's own Flood and Coastal Erosion Risk Management
(FCERM) strategy.
2.3 We also believe that the draft Bill
will not enable implementation of key aspects of Defra's water
strategy Future Water. In particular, we do not believe
it will deliver the Government's aspirations for water efficiency.
2.4 The consultation document identifies
areas where legislation will be developed that do not currently
form part of the draft Bill. Natural England supports the development
of legislation in a number of these important areas and believes
this legislation should be introduced as part of this legislative
reform.
3. ARE THE
POWERS IN
THE DRAFT
FLOOD AND
WATER MANAGEMENT
BILL SUFFICIENT
TO ENABLE
FULL IMPLEMENTATION
OF THE
PITT REVIEW
RECOMMENDATIONS?
3.1 Natural England has reviewed whether
the draft Bill establishes a legislative framework, with accompanying
duties, that is sufficient to implement the Pitt Review[20]54
recommendations on working with natural processes and sustainable
flood risk management solutions.
3.2 In this context, we felt it was also
important to examine whether the draft Bill fully transposes key
Floods Directive[21]55
requirements, and also whether it gives effect to the Government's
aspirations in Making Space for Water[22]56
for sustainable flood and coastal erosion risk management that
embraces adaptation in the face of climate change.
3.3 Annex 1 presents our detailed examination
of the relevant elements of the Pitt Review, the Floods Directive,
the draft Flood Risk Management (Scotland) Bill,[23]
57 and key Government flood risk management policy.
3.4 The Government has acknowledged in the
consultation paper that new flood legislation is needed to:
— Address outmoded flood and coastal erosion
risk management (FCERM) approaches and structures;
— Give effect to the recommendations of
the Pitt Review;
— Adapt to climate change, which is predicted
to increase flood and coastal erosion risk;
— Transpose new legal obligations such
as those arising from the EU Floods Directive;
— Deliver the "full vision" of
Making Space for Water - the Government's FCERM strategy.
3.5 Natural England is not convinced that
the draft Bill, as it stands, provides the clear direction for
the achievement of flood and coastal erosion risk management that
is required by both European legislation and domestic policy.
We acknowledge that legislation is not the sole vehicle for delivering
these objectives and recognise that there are a number of other
reforms currently being undertaken by Defra and the Environment
Agency. Nevertheless, it is our view that the draft Bill should,
as the primary source of flood risk legislation in England, be
compliant with, and uphold the principles of both any European
legislation and current domestic policy,
3.6 Natural England views the draft Flood
and Water Management Bill as a significant but only partial re-casting
of the flood and coastal erosion risk management framework. It
is strong in two principal areas:
— Reforming the roles of bodies engaged
in FCERM delivery, and their inter-relationships;
— Widening the powers of flood operating
authorities to undertake a broader range of activities.
3.7 Natural England believes its weakness
is its failure to be more specific about the duties of flood operating
authorities and to indicate for what purposes such new powers
as they have been given should be exercised. Unlike the draft
Scottish Bill, it contains no explicit duty for sustainable flood
risk management, and it fails to reflect the Floods Directive's
advocacy of wider catchment solutions of the sort that Pitt includes
in the broad category "natural processes". As a result,
it is difficult to be confident that the draft Bill will establish
a new regime that delivers sustainable flood and coastal erosion
risk management working with the natural environment as sought
by the Pitt Review, required by the Floods Directive, and anticipated
by the Government's own FCERM strategy.
3.8 Natural England believes that a commitment
to sustainable flood risk management, and the type of activities
that support it, needs to feature explicitly in the new Flood
and Water Management Act. In our view it is not appropriate for
this important commitment to be relegated to secondary legislation
or even guidance.
3.9 Below we indicate where the draft Bill
could be amended to help address these concerns.
(a) Part 1 Overview
Part 1 of the draft Bill currently contains
no stated purpose or general duty for flood risk management activity
or for the relevant authorities. Natural England believes that
there should be a stated purpose of assessing and managing flood
and coastal erosion risk, aimed at the reduction of adverse consequences
for human health, the environment, cultural heritage and economic
activity through a broad portfolio of structural and non-structural
solutions that are sustainable and adaptive to climate change.
The Environment Agency will continue to have a duty under the
Environment Act 1995 to make a contribution to achieving
sustainable development. However, we believe that a Flood and
Water Management Act should introduce a specific duty on all operating
authorities to manage flood and coastal erosion risk sustainably.
(b) Clause 7(3) Risk Management
The list of examples of "things",
(to use the Bill's own language), that might be done in the course
of flood or coastal erosion risk management should include "undertaking
or promoting changes in land management or use."
(c) Clause 15(1) National FCERM Strategy
The draft Bill is silent on the approach and
content of the proposed National FCERM Strategy, other than requiring
the Environment Agency to have regard to the desirability of minimising
detrimental effects on the chemical, biological and other characteristics
of water. It would be helpful if the Bill provided direction on
the strategy's aims and objectives, including delivery of sustainable
flood risk management solutions and a range of other benefits.
It is not clear from the Bill how the National FCERM Strategy
to be produced by the Environment Agency relates to the Government's
Making Space for Water strategy or other policy documents.
(d) Clause 17(2) guidance
Clause 17(2) states that the Environment Agency
"may" issue guidance about the application of the National
FCERM Strategy and how authorities exercising FCERM functions
are to make a contribution towards the development of sustainable
development. This should be a duty rather than a power. This is
particularly important since the Bill is silent on the required
approach and content of Local Flood Risk Management Strategies
(clause 19). Lead local flood authorities should similarly be
required, rather than have the option, to issue guidance on the
local FRM strategy. Natural England is of the view that the national
and local strategies are key to the delivery of sustainable FCERM,
need to be consistent in approach, and promote working with natural
processes.
(e) CLAUSE
52 PRELIMINARY
ASSESSMENT REPORT
Natural England believes that, to reflect the
requirements of the Floods Directive, preliminary flood risk assessment
reports should also be required to identify those floodplains
that have potential as natural retention areas. Additionally,
preliminary assessments should be required to assess the potential
contribution to flood and coastal erosion risk management of the
restoration or enhancement of natural processes within the relevant
area. Natural England would welcome the opportunity to be consulted
during the assessment process in order to provide advice on the
potential for working with natural processes.
(f) CLAUSE
61 FLOOD
RISK MANAGEMENT
PLANS
In line with Floods Directive requirements,
flood risk management plans must include details of objectives
and measures for managing flood risk. Natural England believes
that there should be a requirement for plans to demonstrate how
the development of these objectives and measures have given due
consideration to the assessment of the potential contribution
to flood risk management of working with natural processes in
the relevant area and to the relative sustainability of measures.
4. ARE THE
PROPOSALS CONTAINED
IN THE
DRAFT BILL
NECESSARY, WORKABLE,
EFFICIENT AND
CLEAR?
4.1 As stated above whilst the Bill as drafted
provides a framework for Flood and Coastal Erosion Risk Management
and requires the production of plans and strategies, it does not
guarantee a new approach, involving sustainable solutions.
4.2 The draft Bill gives the Environment
Agency, local authorities and internal drainage boards powers
to carry out works. This includes "environmental work"
(clause 34) for the purpose of maintaining or restoring natural
processes or reducing or increasing the level of water in a place.
A further provision (clause 41) gives the Environment Agency powers
to carry out "environmental works": "which may
cause flooding or coastal erosion" if they "think the
work desirable" for the benefit of the natural environment.
Furthermore, it gives the Environment Agency powers to make grants
for such works, which seems slightly anomalous bearing in mind
only it is empowered to do those works.
4.3 We would make the following observations
on these clauses:
(a) The drafting seems convoluted, and it may
be difficult to identify which set of powers an authority is using
in any particular case; and
(b) Natural England has a statutory responsibility
for the protection of the natural environment and accordingly
we believe we should be a statutory consultee when consideration
is being given to what is "desirable for the benefit of the
natural environment' to ensure that an informed decision about
the effects on the natural environment can be made. We also believe
that Natural England should be a statutory consultee when an authority
is proposing to carry out environmental work under clause 34.
4.4 The "general duty" on authorities
to "develop, maintain and apply" a strategy for flood
and coastal erosion risk management (clauses 15 and 19) includes
a requirement to have regard to the desirability of minimising
detrimental effects on the chemical, biological and other characteristics
of water (with or without reference to the Water Framework Directive).
4.5 We believe this drafting should be tightened
up and have some observations about these sections:
(a) The "have regard to" duty is very
weak.
(b) The "other characteristics of water"
leaves much to the imagination (for example: we do not know if
it includes physical modification of watercourses and the coast).
(c) The reference to the Water Framework Directive
is vague. We believe it would be better to refer to the "environmental
objectives" of water bodies and Protected Areas under the
Water Framework Directive.
4.6 Natural England supports the concept
of sustainable drainage systems (SUDS). Part 5 of the draft
Bill appears to provide for drainage systems to be built to a
higher standard in future. However, it does not address the problems
of existing drainage and run-off affecting watercourses where
the creation of SUDS would be the most viable solution. We would
like to see responsibility assigned in the Bill for constructing
and maintaining SUDS as retrofit in these circumstances.
5. ARE THERE
IMPORTANT OMISSIONS
FROM THE
BILL?
5.1 We believe that the draft Bill will
not enable implementation of Defra's water strategy: Future
Water.[24]
58
5.2 We would like to see provisions introduced
to the draft Bill to address the following issues as part of implementing
Future Water:
(a) Allocation of responsibilities, powers and
duties for addressing the problems of invasive non-native species
in the water and wetland environment (a requirement of the Water
Framework Directive).
(b) Rather than a water efficiency obligation
we would like to see a statutory water efficiency target aimed
at reducing per capita consumption to 130 litres/head/day,
and extended across all users of water, both domestic and commercial,
to manage demand.
(c) A duty on local authorities to propose "first-time
rural sewerage" schemes to protect and enhance the natural
environment (for diffuse small discharges not connected to the
sewerage system); and
(d) A duty on water companies to produce Waste
Management Plans (on a similar basis to their Water Resource Management
Plans).
5.3 Also omitted from the draft Bill but
referred to in the consultation document is the development of
legislation for the following important areas:
(a) Reform of Internal Drainage Boards;
(b) Time-limiting of abstraction licences;
(c) Powers for the Environment Agency to undertake
restoration of rivers, lakes and coasts, linked to the Water Framework
Directive.
Natural England supports the implementation
of this legislation and believes it should be included in the
draft Bill.
5.4 Natural England also believes it is
important that recommendations carried out by the Cave Review
and the Walker Review in relation to managing impacts on the natural
environment, are incorporated into the draft Bill.
May 2009
20 54The Pitt Review (2008). Learning Lessons from
the 2007 Floods. The Cabinet Office. Back
21
55Directive 2007/60/EC on the Assessment and Management of Flood
Risks. Back
22
56Defra (2005). Making Space for Water-Taking forward a
new Government strategy for flood and coastal erosion risk management
in England. First Government response to the autumn 2004 Making
Space for Water consultation exercise. Back
23
57http://www.scottish.parliament.uk/s3/bills/15-FloodRisk/index.htm Back
24
58Defra (2008) Future Water. The Government's water strategy
for England. HMSO. Back
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