House of Commons - Environment, Food and Rural Affairs Committee

The Draft Flood and Water Management Bill - Environment, Food and Rural Affairs Committee Contents

Memorandum submitted by the Environment Agency (DFWMB 14)

EXECUTIVE SUMMARY AND RECOMMENDATIONS

We welcome the Government's draft Flood and Water Management Bill and associated consultation document for England. We look to the Bill to update ageing flood, coastal erosion, water quality and water resources law to create a new legal framework which makes provision for the following elements:

— clear division of executive roles for the Environment Agency and Local Authorities;

— transposition of the European Floods Directive to integrate effectively its provisions which deal with flood risk assessment, mapping and planning;

— provision for the effective management of surface water;

— clarity on flood and coastal risk management funding arrangements;

— establishment of a duty for cooperation and sharing of information between all relevant bodies, covering all sources of flooding;

— a system of registration for third-party assets with a flood risk use;

— amended reservoir safety legislation to allow a risk-based approach and more effective regulatory controls;

— targeting more efficient and equitable use of water resources in view of rising pressures from development and climate change; and

— ensuring measures to minimise flood risk do not exacerbate or increase risks to water quality including clarification of sewer drainage provisions, removal of the right to connect to the public sewer, and responsibility for sustainable urban drainage systems.

1. INTRODUCTION

1.2 The Environment Agency is the leading public body for protecting and improving the environment in England and Wales. We provide advice, regulate, and deliver a number of services to ensure the sustainable use of natural resources and reduce the probability of flooding from rivers and the sea through the management of land, river systems, and flood and coastal defences.

1.3 For flood and coastal risk management we use permissive powers to:

— build and maintain flood and coastal risk management schemes on main rivers (large streams or rivers);

— influence development to minimise inappropriate development in the floodplain and manage surface water flooding;

— regulate and consent third party works that may impact on our flood and coastal risk management schemes or increase flood risk to others;

— provide a free flood warning service to those at high risk;

— act as the enforcement authority for all large raised reservoirs in England and Wales;

— operate flood risk structures in times of flood;

— make flood maps and flood information available to the public, central and local government, statutory bodies, emergency services, utility companies and insurance companies, and maintain public awareness of flood risk;

— oversee the allocation of capital grants to Local Authorities and Internal Drainage Boards for flood and coastal erosion schemes; and

— promote and commission research into flood and coastal risk management.

1.4 For water resources and water quality we:

— manage the abstraction licensing regime which sets the volume of water and location from which it can be abstracted from the natural environment;

— have a duty to ensure the proper planning of water resources across England and Wales; and

— are responsible for maintaining, or improving, the quality of fresh, marine, surface and underground water in England and Wales.

2. BACKGROUND

2.1 The Pitt Review and EFRA Select Committee Report following the 2007 summer floods contain a number of recommendations that touch directly on the role of the Environment Agency and our interaction with Local Authorities and other bodies involved in the delivery of flood and coastal risk management, particularly our Strategic Overview role for all sources of flood risk in England.

2.2 The Environment Agency took on the Strategic Overview for all sources of flooding in England last June. The draft Bill develops this role further and clarifies responsibilities more broadly for the Environment Agency, Local Authorities and other bodies, in relation to all types of flooding and coastal erosion in England. Policy issues for Wales are under consultation.

2.3 Current flood legislation, much of which dates back to the 1930s, is not sufficient to implement fully the recommendations of the reviews and needs to be changed.

3. RESPONSE TO SPECIFIC QUESTIONS

3.1 Are the powers in the Draft Flood and Water Management Bill sufficient to enable full implementation of the Pitt Review recommendations?

3.1.1 We welcome the inclusion of powers for the Environment Agency and others to help deliver the main recommendations of the Pitt Review. The main issues for us are:

— arrangements for the effective management of surface water including the production of local flood risk management plans such as Surface Water Management Plans by Local Authorities, removal of the automatic right to connect surface water drainage from new developments to the public sewerage system, and adoption and maintenance of sustainable drainage systems;

— cooperation and data sharing between all relevant organisations to help manage flood and coastal erosion risks; and

— amendment of reservoir safety legislation to allow a risk-based approach and more effective regulatory controls.

3.1.2 We believe that the draft Bill covers the main areas of policy recommended by the Pitt Review. It does not contain, however, the Pitt Review's call for "a single unifying act" which would more broadly consolidate and update the provisions of the main current legislation dealing with flood and coastal erosion, for example the Land Drainage Act, the Water Resources Act and the Coast Protection Act. The Government consultation document has therefore said that further work will be undertaken to identify changes necessary to create such a single unifying act, which we support. However, in terms of covering changes to the organisational and policy framework we believe that the important recommendations of the Pitt Review are already covered in the draft Bill.

3.2 Does the draft bill achieve the right balance between protecting the environment and protecting homes and businesses from flooding?

3.2.1 We agree that the draft Bill provides a legislative framework that will allow the Environment Agency and other bodies to achieve this balance. It provides for outcomes related to human health, the social and economic welfare of individuals and communities, infrastructure and the environment to be considered in the development of flood and coastal risk management strategies and plans, such as Surface Water Management Plans, Catchment Flood Management Plans and Shoreline Management Plans, and the implementation of other actions.

3.2.2 We support the establishment of legislation that brings about better long-term outcomes to promote sustainability, including:

— greater security for people and property from the risk of flooding and coastal erosion;

— a more integrated approach to flood and coastal risk management and environmental management;

— modern, risk-based approaches to reservoir safety; and

— improved protection of water supplies and the environment, for example during droughts.

The draft Bill achieves this.

3.2.3 We support the proposal to manage flood risk by employing a portfolio of measures as detailed in Making Space for Water to:

— reduce the threat to people and their property; and

Making Space for Water

3.3 Are the proposals contained in the draft bill necessary, workable, efficient and clear?

3.3.1 We broadly agree that the proposals contained in the draft Bill are necessary, workable efficient and clear. We would like to highlight the following points:

— we welcome the provision of additional powers for county or unitary authorities to carry out works of an emergency nature, as set out in the consultation document. This should enable the lead Local Authority to take prompt action in the event of local flooding from an ordinary watercourse, surface water or groundwater. We do not wish such powers to extend to flooding from main rivers or the sea, as this could lead to local decisions for a specific local interest overriding decisions in the best interests of the catchment as a whole;

— management of surface water—Strategies and plans for managing surface water which underpin the draft Bill will require better, more readily available information about current drainage infrastructure. This information is required to support informed decisions about the quantity and quality of water discharged under all operational conditions. It is essential that powers to require information, along the lines of those proposed in the draft Bill, are retained;

— sustainable Urban Drainage Systems—We believe that Local Authorities should approve, adopt, operate and maintain public sustainable urban drainage systems and that their responsibilities in this regard need to be clarified; and

— transposition of the Floods Directive—We support the proposals in the draft Bill that Local Authorities produce the Preliminary Flood Risk Assessments and Flood Risk Management Plans under the Directive dealing with local flood risks (ie from ordinary watercourses, surface water or groundwater). The draft Bill provides for their publication by the Environment Agency, however, we believe that Local Authorities should be responsible for publishing these assessments and plans.

3.4 Are there any important omissions in the Bill?

3.4.1 We have identified the following important areas which are not currently included in the draft Bill:

— broader development of consenting and enforcement provisions—The draft Bill contains limited proposals to update the consenting and enforcement provisions of the present flood and coastal risk management legislation. Beyond the immediate proposals we would wish to see a more substantive update of consenting and enforcement provisions in a "Single Unifying Act" as called for by the Pitt Review. This would update the current regulatory provisions to match modern standards including a risk based approach and the Hampton Review principles. It would make clear accountabilities between drainage authorities, and their matching powers and duties as operators, allowing them fully to manage the areas assigned to them;

— funding arrangements—The draft Bill includes a small number of clauses dealing with flood and coastal risk management funding issues. The consultation document addresses this issue in much greater detail. There is a need to create the ability for additional funding to meet local needs. We welcome the proposed extension of the "local levy", enabling the Environment Agency to issue a levy on local authorities—subject to their consent—in respect of reducing flood and coastal risk management functions in that geographical area;

— grant Schemes—We have reservations about the proposed power for the Environment Agency to pay a grant to any person in connection with the exercise of flood and coastal risk management functions. This could lead to the Agency being expected to process very large numbers of claims for grants by householders in relation to individual properties. We believe such grants would be better administered by Local Authorities;

— provisions to support the maintenance of third party flood and coastal risk management assets—The draft Bill includes powers for all appropriate authorities to designate assets integral to flood risk management. The owners could not then remove, alter or damage these assets without prior consent. This is expected to reduce the risk of flood and coastal risk management schemes and systems being compromised, delivering wider public benefits; and

— the draft Bill could go one step further through the provision of a duty on those responsible for third party assets to maintain them in a good condition. This proposal is raised in the consultation document.

3.4 Is the proposed institutional framework appropriate and sufficient for the enforcement of measures contained in the draft bill?

3.4.1 We agree that the proposed institutional framework would be appropriate. The key issue here is that bodies involved in delivery of flood and coastal risk management need to have clearly defined roles and responsibilities, so that there is no room for confusion or inaction. We believe that the draft Bill would achieve this, providing clearly defined roles for the Environment Agency and Local Authorities. It will also be important that all of the bodies concerned have adequate levels of expertise and funding to exercise their functions.

3.5 Is the balance struck between what has been included on the face of the draft bill, and what goes into Regulations and the Code of Practices right?

3.5.1 This a matter of legal drafting. In relation to the Floods Directive we note that transposition in the present draft Bill would only be partial because some mandatory elements of the Floods Directive are included in the draft Bill while others have been left for inclusion in Regulations. For example, the draft Bill contains some of the Directive's required elements for Flood Risk Management Plans, and leaves others to be included in Regulations to be made by the Secretary of State. This in itself is not a concern, but would mean that the Directive could not be fully transposed until such secondary legislation was in place.

3.6 What are the likely financial resource implications of the draft bill?

3.6.1 The financial implications of implementing the draft Bill are set out in the impact assessment which is appended to the Draft Bill. Despite there being a number of new burdens as a result of the Bill it is important to note that the costs of inaction would be far greater than the implications of what is in the draft Bill. The ability to secure additional funding to reduce local flood and coastal risk will be essential if we are to manage future challenges that the impacts of climate change will present.

3.7 Has the Government analysed the effects of the draft bill adequately, and has it taken sufficient account of consultation?

3.7.1 We believe that the effects of the draft Bill have been adequately analysed by Government including through the consultation. Indeed, many of the provisions in the draft Bill have been developed following extensive analysis, discussions and previous consultation, for example through Making Space for Water, the Pitt Review and the Government's Future Water strategy. These reviews provide a substantial evidence base for the draft Bill which will be further increased by pre-legislative scrutiny, and the consultation responses from important bodies involved in the delivery of flood and coastal risk management.

May 2009

Q62 Chairman: Let us move on to the Draft Flood and Water Management Bill. I think we were all very impressed with the work of Sir Michael Pitt. I think the Committee were also heartened by the fact that when we did our work some of our recommendations were paralleled by his but as a piece of work it was exceedingly thorough. One of the things which Sir Michael wanted was a comprehensive piece of legislation which brought together all of the law as it stands on water, incorporated into it the recommendations of his report and provided a vehicle for ultimately whatever is agreed with reference to Cave and Walker. Reality, though, tells us a different story because the consultation period for the bill will come to a conclusion in the next few months. There is a chance, just a chance, that if there were to be a Queen's Speech before the end of this year a bill of some sort might find its way there, but having done a little calculation that if there were to be a Queen's Speech, say, at the beginning of November there are roughly 11 legislating weeks to the beginning of March and then we get into a period of speculation and inactivity! So against that kind of background, what is your view? Do you think we should still push on and ultimately introduce the bill in a comprehensive form or, if not, what are the absolute fundamentals that have got to be done within this Parliament to deal with Pitt and the EU Floods Directive, and if so by what mechanisms should we do that?

Lord Smith of Finsbury: Our absolutely first preference would be to press ahead with the bill in its full form and to implement as much as possible of it in the course of either this or whatever session of Parliament follows this. If it were to fall foul of the exigencies of parliamentary and electoral timetables, there are some things which are, to us, absolutely fundamental in the bill and top of that list would be the provision of clear powers and duties for ourselves and the local authorities and water companies in relation to surface water flooding because it is surface water flooding which was, in many places in the summer floods of 2007, far more of a problem than fluvial flooding, although both, of course, played a part. One of the central findings of the Pitt Report is that there is currently not enough clarity as to who is responsible for what and how it all works together. The bill provides the mechanism for doing that. We are, of course, already hard at work with local authorities to make sure the work on the ground is happening already, but what the bill will do is give the necessary powers and duties and clarity that are required. That, to us, is the absolutely fundamental thing.



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