Memorandum submitted by RSPB (FW 07)



On balance the RSPB believes this Bill contains a package of timely reforms that will help remove the legislative barriers that have hindered delivery of the policies set out in Making Space for Water.

There are a number of key elements that work as a package to do this, they include:

Requiring wider environmental benefits to be set out in the national and local strategies

Giving effect to the national strategy at local and operational levels

Establishing a sustainable development duty on all operating authorities

Establishing new powers to undertake flood and erosion management works for environmental reasons


The Bill leaves significant unfinished business, most notably:

Reform of Internal Drainage Boards

Linking flood and coastal erosion risk management to the environmental objectives of the Water Framework Directive

Taking forward wider "water management" reforms



1 The RSPB's involvement in flood and coastal erosion risk management

The RSPB's interest in flood risk and coastal erosion management originally focussed on safeguarding the UK's last wetland fragments from uneconomic, publicly subsidised flood defence and land drainage schemes. While site safeguard remains an important job, increasingly we have developed a more positive relationship with Defra, the EA, IDBs and others as we look to create habitat both as an asset in its own right and because of the role it can play in reducing flood risk and coastal erosion.

The RSPB is also a major landowner with natural and built assets that are at risk from flooding and coastal erosion as well as sites where these natural processes are the very key to their interest. We are also responsible for six lowland raised reservoirs with a capacity of over 25,000m3 with a number of smaller raised water bodies that may or may not fall under the definition of a reservoir under proposals in the Bill.


2 Background: From defence to risk management

In 2004 the RSPB and other NGOs welcomed the launch of Making Space for Water. The vision set out the long-term shift from flood defence to risk management that has been developed by Defra and the Environment Agency (EA). This provides a more strategic approach to Flood and Coastal Erosion Risk Management (FCERM), delivering wider sustainable development objectives and a greater emphasis on working with natural processes.

Despite this positive shift in top line policy, the vast majority of FCERM schemes brought forward can still be characterised as "business as usual". Sir Michael Pitt's review of the 2007 floods recognized this, and recommended that EA, Natural England (NE) and others did more to work with natural processes through the Catchment Flood Management Plans (CFMPs).

Studies have examined the poor response to Government policy on the ground and most cite culture and legislation as key barriers. This Bill is provides important opportunity to address these barriers; to create a more rational system to manage flood impacts for the benefit of people and wildlife.


3 The RSPB's position on the Bill

The Floods and Water Management Bill as published on the 19th of November 2009 is far more limited in scope than the draft Bill originally consulted on. The reductions have resulted in a number of important proposals being shelved.

However, on balance the RSPB believes the Bill contains a package of timely reforms that will help to promote a shift towards sustainable flood and coastal erosion risk management provided it is followed up with strong guidance and further reform to promote a truly integrated framework for water management.

The Bill should be viewed in parallel with the regulations transposing the EU Floods Directive. This establishes a common framework for flood risk management planning across Europe while leaving issues such as standard of defence to the discretion of Member States.


4 Key elements of the bill

4.1 Reinforcing the shift in from "Defence" to "Risk Management"

In defining the term Risk Management, the Bill refers to 'maintaining and restoring natural processes'. This underlines the legitimacy of FCERM, using methods to enhance the landscape's capacity to store and slow water movement or absorb wave energy at the coast. These are not necessarily associated with traditional hard Flood Defence measures. For example re-connecting floodplains to rivers, re-establishing river meanders, restoring upland peat bogs or setting back coastal defences to create saltmarsh and a sustainable buffer zone against potentially catastrophic coastal flooding etc.


4.2 Establishing Strategic Objectives for Wider Environmental Benefits

The measures chosen to manage flood and coastal erosion risk will be informed by factors set out in new National Flood and Coastal Risk Management Strategies for England and Wales. These include an assessment of risk, the costs and benefits of measures, the impact of climate change and, crucially, the achievement of wider environmental objectives.

Although national strategies are developed by the EA through a process of consultation, Government accountability is maintained by ministerial sign-off. Crucially the EA must report on their application to Ministers allowing progress to be tracked against national objectives.

Issues: The RSPB is concerned to clarify whether a Ministerial sign off will enhance openness and democracy of the process given that the EA is tasked with public consultation.


4.3 Giving effect to the national strategy at local and operational levels

Lead Local Authorities have a duty to develop Local Flood and Coastal Erosion Risk Management strategies that are consistent with the national plan. This means that national policies and objectives are fully covered but flexibility is retained to respond to local priorities.

In addition, all risk management authorities (with the exception of water companies) are required to act in a way that is consistent with local and national strategies, giving these strategic documents effect at the point where works are being carried out on the ground. This new clarity about the links between national policy and local action will prove extremely useful for third parties scrutinising the actions of flood risk operating authorities to ensure social, economic and environmental considerations are given due weight.


4.4 Establishing a sustainable development duty on all operating authorities

The Bill places a duty on all Operating authorities to "aim to make a contribution towards the achievement of sustainable development" when carrying out their Flood Risk Management Function. Whilst the "aim to" duty is still weak, it is given greater weight when combined with the duty on the Minister to issues guidance to authorities on discharging their function.


The sustainable development duty only applies to the exercise of flood or coastal erosion risk management function. As a result land drainage operations of Internal Drainage Boards (IDBs) that do not reduce flood risk fall outside of the drafting. This is just one of a number of reforms of IDBs that have not come forward in the final Bill and which we believe should be deal with at the earliest legislative opportunity to provide a truly integrated framework for water management

No indication has been given as to what Ministerial Guidance might contain, hence the true power of the duty is uncertain.

4.5 Establishing new powers to undertake flood and erosion management works for environmental reasons

Although it is envisaged that incidental environmental benefits could accrue from working with natural processes to reduce flood and coastal erosion risk, operating authorities are also uniquely placed to contribute to enhancing the environment for people and wildlife through their management of flooding and erosion. Indeed, there is a critical dependency between the quality of many coastal, fluvial and wetland environments and flood and erosion management. We would not be able to meet many of our targets for the natural environment without the help of FCERM authorities. For example the Environment Agency and IDBs use of their FCERM functions has made a critical contribution towards meeting the Government's PSA target to get 95% of national important wildlife sites into target condition but December 2010.

This power proposed in the Bill rightly removes any ambiguity about whether or not the Environment Agency, local operating authorities and IDBs have powers to undertake such works.


5 What is missing?

5.1 Links to the Water Framework Directive

The Water Framework Directive (WFD) is the most far-reaching piece of water legislation ever to emerge from Europe. One of its unique features is the recognition that the physical form of rivers, lakes and coastlines can have an impact on aquatic ecology. The draft consultation bill contained a proposal to place a duty on the EA to have regard to the desirability of minimising detrimental effects on the water environment when establishing its national strategy.

Although the wording was very weak, the principle is important and should be re-captured.


5.2 Reform of Internal Drainage Boards (IDBs)

The draft Flood Risk and Water Management consultation raised policy options for the reform of IDBs. Although IDBs have a long and successful history of pursuing land drainage for food production, challenges facing society now are increasingly complex. Whilst local knowledge and skills will remain vital, these public bodies need to be redirected.

Managing water levels now needs to deliver an extended range of benefits which encompassing biodiversity, food production and soil carbon storage. Ability to change varies across the IDB grouping, but measures of current progress to restore SSSI condition, boundary mergers and environmental reporting show an uneven level of delivery which, overall, lags behind what might be expected. As a result the RSPB sees IDB reform as a key priority for future legislation.


5.3 Taking forward wider Water Management reforms

It appears that the constraints of parliamentary time have essentially lead to the wider water management elements of the Bill to be parked. The RSPB do not wish to see the positive FCERM proposals in the Bill delayed, and possibly lost, in an attempt to amend this Bill in the short time available. However, it is vital that issues such as time limiting of all abstraction licences, introducing a statutory requirement to review deemed consents, water efficiency, metering and water pricing are addressed at the earliest opportunity in a new parliament.




January 2010