Memorandum submitted by the Environment Agency (FW 19)
We welcomed the opportunity to give oral evidence to the Flood and Water Management Public Bill Committee on 7 January 2010. This additional memorandum provides further information on specific issues.
Flood and Coastal Erosion Risk Management (FCRM) Roles and Responsibilities
We believe that the Bill provides a clear and appropriate allocation of responsibilities in relation to both strategic and operational functions.
the national level, the Environment Agency will have a "strategic overview"
covering all aspects of FCRM in
National and Local Strategies
The national strategy will cover all sources of flood risk and coastal erosion. It will provide a strategic framework and guidance under which:
- the Environment Agency will exercise operational powers relating to main rivers and the sea; and
- Lead Local Flood Authorities will be responsible for strategies for local flood risk management dealing with surface runoff, groundwater and ordinary watercourses (clauses 9 and 10), under which operational powers in these areas will be exercised by Local Authorities and Internal Drainage Boards (IDBs).
Within this framework, some aspects of FCRM will be undertaken by those at risk, the private sector (e.g. insurance) and third sector organisations. The framework will therefore need to be enabling rather than controlling.
We do not believe that appeal provisions are appropriate in relation to our national FCRM strategy functions. There is already a requirement for the Environment Agency to consult in developing the strategy, and it is implicit in this provision that we take account of any representations made. In accordance with clause 23, we will also have a specific duty to consult with the RFCCs and take into account any representations that they make. Further safeguards are provided by the judicial review process and the fact that, ultimately, it will be for the Secretary of State to approve the strategy or guidance, modify it or reject it.
New Powers and Duties
At the operational level, the main details of FCRM powers are specified in Schedule 2 of the Bill. While some have suggested that there is an over-centralisation of power with the Environment Agency, others believe that the Environment Agency does not have sufficient operational control. We believe that neither is the case. Schedule 2 carefully balances powers between the Environment Agency, Local Authorities and IDBs (see appendix 1). The main thrust is to focus the Environment Agency's lead operational responsibility more narrowly than at present, on main rivers and the sea, while expanding Local Authorities' powers in relation to local flood risks. Powers for IDBs are not greatly changed.
The Bill also gives the Environment Agency a number of new duties, including those relating to FCRM outlined in appendix 2.
Overall, therefore, the Environment Agency believes that the new arrangements in the Bill clearly set out roles and responsibilities for the management of different sources of flood risk and thereby will allow the various authorities - in particular ourselves, Local Authorities and IDBs - to deliver their functions within a better-defined overall framework.
Rights of Appeals against Exercise of Works Powers
We note the comments of some Committee members calling for appeals procedures to be put in place for people to challenge Environment Agency decisions to carry out FCRM works. However, we do not think that such appeals mechanisms would be in the public interest. They would mean, for example, that we wouldn't be able to undertake any work, however minor, without the possibility of someone appealing against it, leading to delay and additional cost for no overall public benefit. This would be particularly acute in an emergency situation.
It is also important to note that there are already various safeguards and public protections in place, under present legislation, which would remain under the Bill. For example, where we exercise our powers to develop new schemes then we are subject to the planning process and all the public safeguards that this entails. The same applies to Internal Drainage Boards and Local Authorities, which have the same powers and community issues to resolve in relation to the flood risks for which they have works powers. There are also statutory instruments in relation to our maintenance/environmental works that provide an opportunity for the public to object and if necessary for Ministers to have the final say. All our decisions are subject to the judicial review process or can be referred to the Local Government Ombudsman.
Regional Flood and Coastal Committees (Clauses 22-26)
The Bill proposes to replace the present Regional Flood Defence Committees (RFDCs) with Regional Flood and Coastal Committees (RFCCs). This reflects the new Environment Agency role in relation to coastal erosion.
At present, RFDCs have executive powers, in that the Environment Agency must exercise its functions through these committees. This was clearly sensible in the past when levy raised locally was the main source of flood risk management funding and there was no national body with a Board. This is no longer the case as the majority of flood management work carried out by the Environment Agency is funded by Government grant in aid allocated to nationally set priorities decided by Ministers.
However, the Environment Agency Board would have to consult the RFCCs on the exercise of FCRM functions, and would be required to take account of any representations made. The RFCCs would also retain the executive role for the local levy and other sources of funding that are raised locally.
As described above, one of the main achievements of the Bill is to provide clarity of responsibilities between the Environment Agency, Local Authorities and IDBs. To the extent that responsibilities are given to Local Authorities, these can only apply within the political boundaries of the Local Authority. However, this does not mean that implementation will overlook consideration of natural factors and in particular a catchment based approach to flood risk management.
Local Authorities and other bodies such as IDBs and water companies should be encouraged to form cross-boundary partnerships. Indeed, this approach is already being taken forward by a number of authorities. Joint partnership arrangements such as this can allow authorities to share their own expertise and experiences and gain much added value to their activity. The Environment Agency already actively participates in such groups and will help facilitate further partnerships in support of the Bill's objectives, building on experience with local area agreements, coastal groups, etc, and the expertise of our regional committees to provide guidance and peer support. Through our representation on such partnerships and that of our regional committees, we will strongly champion the need for a catchment approach.
Where cross-boundary groups are not established and individual Local Authorities develop separate local strategies they should still be consistent with the national strategy, helping to avoid the outcome of one local strategy having significant adverse impacts on other Local Authorities. In producing their strategy, the Lead Local Flood Authority should draw from existing sources of flood risk information. This includes Catchment Flood Management Plans or Shoreline Management Plans, which assess the downstream effects of flood risk management and outline how adverse effects could be avoided (for example storing flood water rather than channelling it faster downstream where it would cause similar flood risks). The effects of river or coastal flooding or erosion can extend well beyond neighbouring Local Authorities, so there needs to be an understanding that 'neighbouring' does not merely equate to 'immediately adjacent'.
The requirements of the Bill are complemented by those of the Flood Risk Regulations transposing the EU Floods Directive. These regulations require the preparation of flood risk assessments, flood maps and flood risk management plans. The Environment Agency is to coordinate implementation of the Directive at the level of the river basin districts established under the Water Framework Directive. We therefore believe that, in combination, the Bill and Regulations provide for an effective approach to FCRM taking account of both political and natural boundaries.
Designation of features (Clause 30 and Schedule 1)
The flood defences maintained in England and Wales by the Environment Agency and other authorities amount to around 45% of all such assets that are relied on to protect properties from flooding. The remainder are maintained by "third parties" and include things such as highways, railway and other embankments, boundary and garden walls and buildings which have a flood risk management function in practice.
The Bill proposes a permissive power for the Environment Agency and other authorities to designate those assets with an important flood risk management function. The owners could not then remove, alter or replace these assets without prior consent. The assets would still belong to the individual owner and could be bought, sold and used for their intended purpose as normal. Owners would need to obtain consent prior to undertaking activities that might adversely impact on flood risk. There would be no direct cost implications for owners as we do not intend to charge for the issuing of these consents. Designation would aim to ensure that owners continue to control their assets safely rather than having someone else take control.
The designation of features is a necessary response to some recent examples where walls and earth banks have been removed by private owners even though they provided flood relief benefit to communities. Public risk management bodies need to know where all these features are and where appropriate on a risk-based approach have the power to designate such features.
Designation of floodplains
The concept of designation of features was developed primarily to protect features that were not designed as flood defences but nevertheless are important for the flood risk management of a community. The Impact Assessment mostly considered such features to be raised walls and embankments or other built features, but also included natural features such as raised ground, shingle banks, dunes etc where these formed part of a defence.
The scope of the concept did not take into account all floodplain but inclusion of parts of the floodplain, such as controlled washlands and storage areas, is both possible and desirable.
We have no need, or intention, to designate all flood risk management assets - only those that if altered or removed would put people and property at risk. Similarly we would have no need or intention to designate all floodplains, although the ability to designate formalised flood storage areas will be helpful.
The Bill provides various rights of appeal on designation, including against designation of a feature or refusal to give consent to removal or modification. We are willing to consider with Government providing for appeals against the conditions contained within notices served under the designation of features provision.
Reservoirs (Clause 33 and Schedule 4)
Current reservoir safety legislation is not risk-based. All reservoirs with a capacity greater than 25,000 cubic metres are subject to the same regulatory requirements, regardless of the risk they pose to downstream communities. Reservoirs of less capacity are not covered by the Reservoirs Act, although in some cases they could present greater risks than those that are regulated, depending on their location and condition.
The Bill proposes a more risk-based approach. This would see all reservoirs with a capacity greater than 10,000 cubic metres registered under the new legislation. The Environment Agency does not expect there to be any charge for registering a reservoir. The purpose of registration is to ensure we obtain information from owners of reservoirs that may pose a risk to public safety, to enable us to assess if a reservoir is high-risk or not. Reservoir owners should already hold this information. We plan to make the registration process available online and anticipate that it will take around 15 minutes to complete.
Only those reservoirs that pose a risk to life would be required to have regular supervision and periodic inspections by qualified civil engineers. There are a number of reservoirs currently subject to the provisions of the Reservoirs Act because of their size that pose a minimal risk to people. The new risk-based approach means that these reservoirs will no longer be subject to current inspection regimes, thereby saving the owner money and reducing the regulatory burden. The focus will be on those with the highest risk to public safety.
The Bill amends the Environment Act 1995 to permit the Environment Agency to introduce a charging scheme. This can only cover the administrative costs of the Environment Agency meeting its statutory duty. For owners of high-risk reservoirs it is anticipated that the annual charge could be between £800 - £1,000. Given the benefits to public safety, and in particular the fact that the current regime is funded by the taxpayer with no contributions from reservoir owners who benefit from using their reservoirs, we believe that charges are justified and the proposed costs are reasonable.
Sustainable Drainage Systems (SUDs) (Clause 32, Schedule 3)
We support strongly the use of SUDs as proposed in the Bill. They provide a good solution for surface water drainage from new developments and roads.
We are supporting Defra/WAG and CLG in the drafting of the National SUDs Standards. The Bill sets out that the SUDS Approving Body is to be the unitary or county council for the area. The consultation on the draft Bill demonstrated clear support for local authorities taking on this role - the majority of the 148 written responses on this issue were of the view that local authorities should take responsibility for adopting and maintaining above-ground SUDS in public open spaces. It was felt this would act to enhance the local authority planning role and encourage a community-based focus.
Statutory flood protection targets
We believe that it is not practical or desirable to set targets for the number of houses to be protected from flooding to certain standards on the face of the Bill. Fixing targets in law would be inflexible and protecting communities depends on the amount of funding available as well as many other considerations including increasing risks from climate change. We know that it is not economical to defend everywhere and that risks change over time. A target set say twenty years ago based on best available information at the time would be a significant underestimate given what we now know and the potential future risks.
New arrangements for the management of flood and coastal risk
· Lead Local Flood Authorities would acquire powers to carry out flood risk management work relating to surface runoff and groundwater (no organisation has these powers at present);
· IDBs and District Councils would retain their present powers to carry out flood risk management work relating to ordinary watercourses. The Environment Agency's powers in relation to ordinary watercourses are generally removed;
· The Environment Agency would retain powers to carry out flood risk management work relating to main rivers and the sea, and would acquire powers to undertake coast protection work;
· Maritime District Councils also have powers to undertake coast protection work with the Environment Agency's consent;
· IDBs and District Councils would also have powers to undertake sea flooding work. At present there is no requirement for Environment Agency consent in the Bill. We believe this is an oversight as it would lead to a duplication of responsibilities and a lack of clarity over who can do what. We are therefore pleased to see that the Minister has tabled an amendment to address this point.
Environment Agency new duties
The Bill makes provision for the Environment Agency to have the following new duties, among others:
· To produce, consult
on, publish a summary of, and submit to the Secretary of State for approval,
the national FCRM strategy for
· To exercise our FCRM functions in a manner consistent with the local and national strategies, and to have regard to the strategies in exercising other functions which may affect flood or coastal erosion risks;
· To co-operate with other relevant authorities in the exercise of FCRM functions;
· To report to the Minister about FCRM, including implementation of the national strategies;
· To exercise a FCRM function on behalf of another authority, when directed to do so by the Minister;
· To establish, consult with, and take into account any representations made by Regional Flood and Coastal Committees;
· To comply with any request made by a Local Authority Overview and Scrutiny Committee for information or a response to a report, and to have regard to reports and recommendations of such a committee.