Flood and Water Management Bill

House of Commons

Session 2009 - 10
Internet Publications
Other Bills before Parliament

Flood and Water Management Bill

Flood and Water Management Bill
Schedule 4 — Reservoirs
64

      (2)
In subsection (1) omit the words from “setting” to the end.
      (3)
After section 12A(1) insert—
“(1A)
A flood plan is a document—
(a)
giving information about the areas that may be flooded in the
event of an uncontrolled escape of water from the large
5
raised reservoir,
(b)
specifying the action that the undertaker would take in order
to prevent an uncontrolled escape of water, and
(c)
specifying the action that the undertaker would take in order
to control or mitigate the effects of a flood.”
10
21
After section 12A insert—
“12AA
Flood plans: preparation
(1)
This section applies where an undertaker is directed to prepare a
flood plan under section 12A.
(2)
The undertaker must prepare a flood plan in consultation with the
15
appointed engineer.
(3)
The undertaker may not provide a copy of, or publish, a flood plan
in accordance with a direction under section 12A(2)(d) or (e) unless
the appointed engineer has certified that the requirements of a
direction under section 12A(2)(a) and (b) are satisfied.
20
(4)
The undertaker must test a flood plan at such times and in such
manner as may be directed by the appointed engineer.
(5)
In the event of flooding, or if flooding is reasonably expected to
occur, the undertaker must implement the flood plan without delay.
(6)
The undertaker—
25
(a)
must keep a flood plan under review, and
(b)
may revise a flood plan.
(7)
The undertaker must revise the flood plan in accordance with the
directions of the appointed engineer.
(8)
The following apply to a revision of a flood plan as they apply to a
30
flood plan—
(a)
subsections (2) to (7), and
(b)
any requirements of a direction under section 12A.
(9)
In this section “appointed engineer” means—
(a)
in the case of a high-risk reservoir, the supervising engineer,
35
and
(b)
in any other case, the engineer appointed for the purposes of
this section.”
22    (1)
Section 19 (references) is amended as follows.
      (2)
After subsection (1) insert—
40
“(1A)
If an engineer determines that the requirements of a direction under
section 12A(2)(a) and (b) are not satisfied for the purposes of section

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Schedule 4 — Reservoirs
65

12AA(3), the undertaker may refer the matter to a referee in
accordance with rules under this section.”
      (3)
In subsection (2) after “recommendation” insert “or determination”.
      (4)
In subsections (3) and (4) for “this section” substitute “subsection (1)”.
      (5)
After subsection (4) insert—
5
“(4A)
A referee under subsection (1A) may direct the engineer to issue a
certificate for the purposes of section 12AA(3).”
23    (1)
Section 20 (reports, certificates etc.) is amended as follows.
      (2)
In subsection (4)(c) omit “modifying any such report as is mentioned in
paragraph (b) above”.
10
      (3)
After subsection (4)(g) (inserted by paragraph 17(6)) add—
“(h)
any direction given under section 12AA(4) or (7).”
24
In section 22 (criminal liability) after subsection (1AD) (inserted by section
18(2)) insert—
“(1AE)
An undertaker who fails to comply with section 12AA(4), (6)(a) or (7)
15
is guilty of an offence and liable—
(a)
on conviction on indictment, to a fine, or
(b)
on summary conviction, to a fine not exceeding the statutory
maximum.
(1AF)
An undertaker who fails to comply with section 12AA(5) is guilty of
20
an offence and liable on summary conviction to a fine not exceeding
level 5 on the standard scale.”
Discontinuance
25    (1)
Section 13 (discontinuance) is amended as follows.
      (2)
In subsection (1) for the words from “more than 25,000” to “adjoining the
25
reservoir” substitute “10,000 cubic metres of water above the natural level of
any part of the surrounding land”.
      (3)
After subsection (1) insert—
“(1A)
An engineer employed for the purposes of subsection (1) may issue
a certificate (the “interim certificate”) if the engineer thinks that the
30
level of water in the reservoir should be reduced before the alteration
is completed.
(1B)
The interim certificate must specify—
(a)
the reduced water level,
(b)
the time by which it must be reduced, and
35
(c)
the conditions (if any) on which the reservoir may be filled to
the reduced level.
(1C)
The undertaker must ensure that the reservoir does not contain
water except in accordance with the interim certificate.
(1D)
The engineer employed for the purposes of subsection (1) may vary
40
an interim certificate by giving written notice to the undertaker.

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(1E)
An interim certificate ceases to have effect on the issue of a certificate
under subsection (2).”
      (4)
In subsection (3) for the words from “more than 25,000” to “adjoining the
reservoir” substitute “10,000 cubic metres of water above the natural level of
any part of the surrounding land”.
5
      (5)
At the end add—
“(4)
The Minister may by order substitute a different volume of water for
the volume specified in subsection (1) or (3).
(5)
Where it appears to the Environment Agency that a qualified civil
engineer has not been employed as required by subsection (1) the
10
Agency may by notice require the undertaker—
(a)
to appoint a qualified civil engineer for the purposes of this
section before the end of the period of 28 days beginning with
the day on which the notice is given, unless the appointment
has already been made, and
15
(b)
to notify the Agency of the appointment (whether it was
made before or after the notice was given).”
26    (1)
In section 15 (reserve powers) in subsection (1) after “12” insert “, 13”.
      (2)
In section 21 (duty to provide information) in subsection (5) after “10(6)”
insert “, 13”.
20
      (3)
In section 22 (criminal liability) in subsection (1)(b) after “12” insert “, 13”.
Abandonment
27    (1)
Section 14 (abandonment) is amended as follows.
      (2)
In subsection (2) for the words from “before” to “afterwards” substitute
“within the period specified in the report”.
25
      (3)
At the end add—
“(6)
The Minister may by regulations make provision about what is and
is not to be treated for the purposes of this Act as—
(a)
abandonment of use of a large raised reservoir as a reservoir,
and
30
(b)
bringing a large raised reservoir back into use as a reservoir.”
28
In section 20 (reports, certificates etc.) in subsection (4)(b) omit from “and
stated” to “safety”.
Powers of entry
29
In section 17 (powers of entry) for subsection (1)(a) substitute—
35
“(a)
for the purpose of carrying out an inspection, survey or other
operation to determine whether any provision of this Act
applies;”.

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Schedule 4 — Reservoirs
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Appeals
30
After section 19 (references) insert—
“19A
Appeals
(1)
The Minister must by regulations provide a right of appeal against—
(a)
a requirement to appoint an engineer under sections 8(1),
5
9(7), 10(7), 12(4), 13(5) and 14(4), and
(b)
a requirement to carry a recommendation of an engineer into
effect under sections 8(3A), 9(7), 10(7) and 14(4).
(2)
The regulations must—
(a)
confer jurisdiction on the Minister, a court or a tribunal, and
10
(b)
make provision about procedure (including the effect of
pending appeals).”
Directions of engineers
31
In section 20(1) (general provision about documents: prescribed form) for
“or certificate” substitute “, certificate or directions”.
15
Assessment of reports and statements
32
After section 20 insert—
“20A
Assessment of reports and statements
(1)
The Minister may by regulations make provision for the assessment
of the quality of reports and written statements prepared by—
20
(a)
inspecting engineers, and
(b)
supervising engineers.
(2)
The regulations may make provision for the assessment to be made
by a committee consisting of members of the Institution of Civil
Engineers; and the regulations may specify the conditions for
25
membership of the committee.
(3)
The regulations may, in particular, make provision about—
(a)
the criteria for assessment,
(b)
the documents, or categories of documents, that are to be
assessed,
30
(c)
the assessment procedure, which may include provision
about oral or written representations, and
(d)
timing.”
Information and reports
33
After section 21 (duty to provide information) insert—
35
“21A
Power to require information
(1)
For the purposes of carrying out its functions under this Act, the
Environment Agency may by notice require an undertaker to
provide information specified in the notice.
(2)
The notice may require the information to be provided—
40

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Schedule 4 — Reservoirs
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(a)
within a specified period;
(b)
in a specified manner or form.
(3)
The period specified under subsection (2)(a) must be a period of at
least 28 days beginning with the day on which the notice is issued.
21B
Reports
5
(1)
The Minister may by regulations require a specified person to make
a report to the Environment Agency about any incident of a specified
kind which affected, or could have affected, the safety of a large
raised reservoir.
(2)
The regulations may, in particular, provide that the duty to report
10
applies to—
(a)
an undertaker, and
(b)
an engineer appointed for any purpose of this Act.
(3)
The regulations may make provision about—
(a)
the form and manner of a report,
15
(b)
the timing of a report.”
34
In section 22 (criminal liability) after subsection (4) insert—
“(4A)
An undertaker who fails to comply with a requirement of a notice
given under section 21A is guilty of an offence.
(4B)
An undertaker who fails to comply with a requirement to make a
20
report under regulations made under section 21B is guilty of an
offence.
(4C)
A person guilty of an offence under subsection (4A) or (4B) is liable
on summary conviction to a fine not exceeding level 5 on the
standard scale.”
25
Enforcement: supplementary
35
In section 22 (criminal liability) in subsection (1)—
(a)
omit “by the wilful default of the undertakers”, and
(b)
omit “unless there is reasonable excuse for the default or failure”.
36
After section 22B insert—
30
“22C
Expenses
The undertaker must pay to the Environment Agency the amount of
expenses reasonably incurred by the Agency in connection with the
consultation of an engineer under—
(a)
section 8(3B),
35
(b)
section 9(8),
(c)
section 10(8), and
(d)
section 14(5).”

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Arrangements for civil protection: charges
37
After section 22C (inserted by paragraph 36) insert—
“22D
Arrangements for civil protection: charges
(1)
A person who is listed in Part 1 of Schedule 1 to the Civil
Contingencies Act 2004 (a “Category 1 responder”) may charge an
5
undertaker a fee in accordance with a scheme prescribed by
regulations made by the Minister.
(2)
The purpose of the scheme must be to enable Category 1 responders
to charge fees to undertakers in respect of costs incurred in carrying
out functions under section 2 of the 2004 Act in connection with their
10
reservoirs.”
Regulations and orders
38    (1)
Section 5 (power to prescribe by regulations) is amended as follows.
      (2)
The existing provision becomes subsection (1).
      (3)
At the end add—
15
“(2)
A statutory instrument under this Act—
(a)
may make provision that applies generally or only for
specified purposes,
(b)
may make different provision for different purposes, and
(c)
may include incidental, consequential or transitional
20
provision.
(3)
Regulations or an order made under any provision listed in
subsection (5) or (7) shall be made by statutory instrument.
(4)
A statutory instrument containing regulations or an order made
under any provision listed in subsection (5)—
25
(a)
shall be subject to annulment in pursuance of a resolution of
either House of Parliament, in the case of regulations or an
order made by the Secretary of State, or
(b)
shall be subject to annulment in pursuance of a resolution of
the National Assembly for Wales, in the case of regulations or
30
an order made by the Welsh Ministers.
(5)
The provisions are—
(a)
section A1(4) and (5),
(b)
section 2(2C),
(c)
section 2A(4),
35
(d)
section 2E(1),
(e)
section 14(6),
(f)
section 19A(1),
(g)
section 20A(1),
(h)
section 21B(1), and
40
(i)
section 22D(1).

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(6)
A statutory instrument containing regulations or an order made
under any provision listed in subsection (7) may not be made unless
a draft has been laid before and approved by resolution of—
(a)
each House of Parliament, in the case of regulations or an
order made by the Secretary of State, or
5
(b)
the National Assembly for Wales, in the case of regulations or
an order made by the Welsh Ministers.
(7)
The provisions are—
(a)
section A1(7) and (8),
(b)
section 2C(1)(b),
10
(c)
section 6(6B),
(d)
section 10(2), and
(e)
section 13(4).”
Charges
39
In section 41(1) of the Environment Act 1995 (power to make schemes
15
imposing charges), after paragraph (b) insert—
“(ba)
as a means of recovering costs incurred by it in performing
functions conferred by the Reservoirs Act 1975 the Agency
may require the payment to it of such charges as may from
time to time be prescribed;”.
20
Power to make further provision
40    (1)
The Minister may by order make such further amendments to the Reservoirs
Act 1975 as appear necessary or desirable in consequence of the
amendments made by this Schedule.
      (2)
An order under sub-paragraph (1) may not be made unless a draft has been
25
laid before and approved by resolution of—
(a)
each House of Parliament, in the case of an order made by the
Secretary of State, or
(b)
the National Assembly for Wales, in the case of an order made by the
Welsh Ministers.
30
Ministerial responsibility
41    (1)
In the amendments of the Reservoirs Act 1975 made by this Schedule a
reference to the Minister is a reference to—
(a)
the Secretary of State, in relation to England, and
(b)
the Welsh Ministers, in relation to Wales.
35
      (2)
After section 27B of the Reservoirs Act 1975 insert—
“27C
Ministerial responsibility
References to “the Minister” in this Act are to be construed in
accordance with paragraph 41 of Schedule 4 to the Flood and Water
Management Act 2010.”
40
Cross-border England-Scotland reservoirs
42    (1)
In this paragraph—