Memorandum submitted by National Farmers' Union (FW 09)


1. The NFU welcomes the opportunity to make a written representation to the Floods and Water Management Committee. The NFU represents 55,000 farm businesses in England and Wales involving an estimated 155,000 farmers, managers and partners in the business.


2. Our response deals with issues most relevant to our members.


General points:


1. Food Security: The Bill lacks recognition of the need to protect certain land areas for reasons of food security and agricultural sustainability. The protection and resilience of highly agriculturally productive and low lying (below the 5 metre contour) land must figure in both high-level strategies and local flood management programmes. We believe this represents a critical weakness in the approach of Defra and the Environment Agency in drafting the Bill.


2. Professor Sir John Beddington, the Government's Chief Scientific Adviser warns there will be a major food security issue by 2030 and the House of Commons EFRA Select Committee recent report on food security1 says the UK has a moral duty to make the most of its position and natural advantages for producing certain types of food. It goes on to say we should aim to increase production of fruit, vegetables and cereals suited to being grown in the UK.


3. 57% of Grade 1 agricultural land is below the 5 metre contour and approximately 40% of the vegetables produced in England come from the low-lying fens. This means in some instances the need to maintain domestic food production may have to take precedence over environmental enhancement. This inevitably leads to tension between environment and agriculture as the Environment Agency (EA), whose primary duty it is to contribute to sustainable development is, under these proposals given responsibility for Flood and Coastal Erosion Risk Management (FCERM). We agree all authorities involved in flood and coastal erosion risk management should have due regard to sustainable development where possible, but if the EA is to win the confidence of the farming community, it needs to be clear that reducing flood risk is one of its central responsibilities and protection of certain agricultural areas must be a material consideration in its decision making.


4. The scope of the Bill: The Bill's provisions are power-heavy and duty light. It provides the EA with powers to set the national strategy and provide governance to which all other flood and coastal risk management authorities must be consistent. However the current proposals in our opinion do not go far enough to ensure the EA is justified and transparent in reaching conclusions forming the basis of the national strategy. The EA is a regulator with an ever increasing array of enabling and operational powers reflecting its multifunctional role as judge, jury, monitor and operator. Conflicts of interests such as that between sustainable agricultural production and environmental enhancement are inevitable and in such cases where is the governance process to monitor the actions of the regulator? As a minimum, we recommend the Bill should include:

i. A requirement for the EA to publish its maintenance schedules and the risk assessments used to determine its approach (in line with Recommendation 25 of the Pitt Review)

ii. A requirement for the EA to be compliant with existing democratic processes such as the development planning process.

iii. Provision made on the face of the Bill for an appeals or challenge mechanism allowing operating authorities to depart from the national strategy in exceptional cases where local circumstances dictate that another approach would achieve more effective FCERM (following consultation with and approval by the EA). This would prevent the national strategy creating too rigid a framework for other authorities to work within.


5. Approach: A balance between traditional and new approaches to flood risk management and coastal erosion is needed. A move from a system based on the construction and maintenance of hard defences to one focussed predominantly on the restoration of natural processes will not deliver the aims of this Bill. The use of hard defences and natural processes in FCERM should be regarded as complementary rather than either/or options.


6. Enabling provisions: The Bill contains many 'enabling provisions' which allow the Minister to put in place, at some point in the future, new regulations or changes by order without the detail or necessary scrutiny we believe is needed. For example: A commitment by government to consult further on such elements of the Bill is needed.


7. River Maintenance: The Bill makes no reference to the state of main rivers. The condition and maintenance of main rivers greatly concerns our members Channel-wide maintenance (including dredging and clearing of bank-side vegetation) is vital to both flood risk and water level management. The reduction in EA riparian maintenance must be reversed if the Bill aims are to be delivered.


Specific comments on aspects of the Bill as presented to Parliament:


8. Part 1: Flood and Coastal Erosion Risk Management


9. Clause 1: Flood and coastal erosion. The definition of 'flood' should include the waterlogging of land so relevant strategies and plans take its likelihood (and the cost of ensuing damage to property) into account. Standing water may not be visible on the surface and therefore the land may not be 'covered by water'' as required by the definition currently used; but saturation of land can cause significant damage to property (crops and building foundations), particularly if it is not drained away efficiently. This is a type of risk that the Government is seeking to see managed through the Bill.


10. Clause 4: Flood risk management function. EA duty: the Bill should place a duty on the EA along the lines of the statutory guidance given by the Secretary of State in relation to its flood defence functions, namely "to reduce the risks to people and to the developed and natural environment from flooding, and in particular: to provide adequate, economically, technically and environmentally sound and sustainable flood and coastal defences; to provide adequate and cost-effective flood warning systems which contribute to a seamless and integrated service of flood forecasting, warning and response; and to discourage inappropriate development in areas at risk from flooding" 2.


11. Clause 7: National flood and coastal erosion risk management strategy: England. We are pleased to see this section of the Bill has now changed and it now outlines what the strategy should cover and that the EA is required to consult. However given its importance, the EA should be required to take account of any representations made and a full draft of the strategy should be made publically available and consulted upon ahead of submitting to the Minister for sign off. This will give all operating authorities, stakeholders and the public the opportunity to raise any concerns. A minimum consultation period of 12 weeks should be specified.


12. Clause 9: Local flood risk management strategies: England. It is not clear that lead local authorities have the necessary expertise and skills needed to fulfil their role. They must be adequately resourced and advised.


13. Clause 9: Local flood risk management strategies: England. All recent drivers in water management, including the EU Water Framework Directive, are based on hydrological catchments which local authority boundaries do not follow. Internal Drainage Boards (IDBs) take a catchment/sub-catchment approach and must be fully involved in strategy development.


14. Clause 9: Local flood risk management strategies: England. (Paragraph 6) The county and unitary local authorities should be required to submit draft local strategies' to the relevant Regional Flood and Coastal Committee (RFCC) for scrutiny.


15. Clause 9: Local flood risk management strategies: England. Given the local importance of these flood risk management strategies, local authorities should be required to take account of any representations made during the consultation. A minimum consultation of 12 weeks should be specified.


16. Clause 21: Lead local authorities: duty to maintain a register. It is absolutely vital that the appeal process currently envisaged in the proposed Bill is maintained. For clarity, we would also like to see a provision which would allow an appeal against the detail of an enforcement notice as well as the current process allowing an appeal against notice itself.


17. Regional Flood and Coastal Committees


18. Clause 23 Consultation and consent (Paragraph 1). We believe that RFCCs will be even more crucial under the new arrangements. They are well-placed to provide a counter-balance to the EA powers and a broader assessment of the issues than lead local authorities are able to (restricted as they are by county boundaries). At the same time, they have a strong local focus on where resources need to be utilised. The term 'advisory' understates their importance; we prefer to think in terms of scrutiny and supervision. RFCCs should be given express powers to receive and scrutinise local flood and coastal erosion risk management plans and performance; lead local authorities should be required to have regard to any representations made by the committees.


19. General


19. Clause 27: Sustainable development. A definition of 'sustainable development' is needed on the face of the Bill. Imposing a requirement that operating authorities should contribute to sustainable development when carrying out their flood and coastal erosion risk management without defining it would make the requirement meaningless in practice. In particular it needs to be made clear whether 'development' refers only to development requiring planning consent or has a wider meaning for the purposes of the proposed requirement. We suggest the World Commission on Environment & Development definition as a starting point: "...sustainable development is a process of change in which the exploitation of resources, the direction of investments, the orientation of technological development, and institutional change are made consistent with the future as well as present needs".


20. Part 2: Miscellaneous


21. Clause 33: Reservoirs. It is vital that any new regime that brings smaller reservoirs under the supervision of the EA is designed and administered with a real commitment to keeping regulation, administration and costs proportionate to the risks involved. Otherwise there is a real risk that what the Government is encouraging with its water resources and climate change adaptation arms, it is making considerably less attractive through its flood risk management policies. It is also important to remember that reservoirs falling below the 1975 Act are regulated by the Health & Safety Executive and Local Authorities (under the Building Act 1984).


22. Clause 33: Reservoirs. Any charging regime must be proportionate taking account of the safety risk associated with a particular reservoir. Not simply apportion the annual cost of EA reservoir regulation among all high-risk reservoirs. A clear distinction must be made between those fulfilling the inspection, recording and reporting requirements in a timely manner and those which do not (and therefore trigger more active supervision and intervention by the EA). If, however compliant a reservoir manager is, he pays the same as his non-compliant neighbour, where is the incentive for him to continue being meticulous about his safety obligations?


23. Clause 36: Water use: temporary bans. We welcome the commitment that the affirmative resolution procedure will apply to any Orders which extend the range of discretionary uses that can be restricted by water companies. But we are disappointed to see no reference to the Water Industry's Code of Practice in the draft Bill. We would like to see an express duty for water companies to produce the Code of Practice and have regard to it when using their powers to restrict discretionary uses of water. This will help ensure transparency and consistency of approach by water companies during times of water shortage.


24. Agricultural and horticultural businesses could be affected if further uses are prohibited. For example, the washing down of livestock trailers with power hoses is a critical element of disease control (biosecurity); so, it is not a question of costs, but of being able to carry out business in line with the law and codes of practice. An exemption should always be made for this kind of activity. As regards horticultural, landscape and wider gardening businesses, the NFU has previously compiled and submitted assessments of the potential impact of specific drought orders e.g. in 2006 when drought order applications were made in South East England.


25. Clause 38: Incidental flooding or coastal erosion: Environment Agency. We question the appropriateness of this stand-alone power, given that the Bill's main aim is to deliver on Flood and Coastal Erosion risk Management. It enables the EA "to carry out work which will or may cause flooding or coastal erosion" if the EA thinks the work is "desirable for the benefit of the natural environment". Whilst the EA must "have regard to" its own national strategy and the work must not increase the potential harmful consequences to human health, social and economic welfare of individuals and communities etc..., there is no requirement that the work be for the purpose of flood or coastal erosion risk management or any related purpose. Given that, this stand-alone power, even with the safeguards provided, should be removed from the Bill, whose main aim is to deliver on FCERM.


26. SCHEDULE 4: Reservoirs. (Paragraph 4) There should be no charge for registration alone; small reservoir owners/managers will already be incurring costs in collating and submitting the required registration information. As environmental permit holders, many of our members have experience of EA cost recovery. We would be seriously concerned if, say, exemptions from charges were promised at the outset of the new regime (as an incentive to ensure that reservoir managers contact the EA to register), only for managers to find that they were then subject to annual charges simply by virtue of their being on the register and despite their reservoirs being classified as negligible risk. Transparency from the outset is vital. Our preference would be for small on-farm irrigation and produce washing reservoirs to be exempt from registration at all.


27. SCHEDULE 4: Reservoirs. Registration (Paragraph 4). At the moment, the draft Bill states that the "Minister may make regulations about registration under this section' As we state earlier, it is vital that any new regime that brings smaller reservoirs under the supervision of the EA is designed and administered with a real commitment to keeping regulation, administration and cost proportionate to the risks involved. Registration should be kept as simple as possible with the minimum amount of information needed to be provided.


28. SCHEDULE 4: Reservoirs construction and alteration (Paragraph 10). Our comments in relation to keeping regulation, administration and costs proportionate to the risks also apply to the construction and alteration of reservoirs.


29. SCHEDULE 4: Reservoirs. Flood Plans (Paragraph 20) Preparation of flood plans by all ' large raised reservoirs should wait until the new risk-based approach is in place; as what is the point of directing all large raised reservoirs to prepare such plans irrespective of the public safety risk they pose? Our understanding is that two thirds of the 400 farmer/private landowner 1975 Act reservoirs are currently placed in the non-statutory C&D risk categories i.e. they pose negligible risk to human life. The estimated cost of preparing an on-site flood plan (2,6407) is disproportionate to that risk.



January 2010