PART 3 OPINION OF THE COMMITTEE
GENERAL
37. We share our witnesses'
general welcome for the broad aims of the framework Directive:
in principle it could serve as a model for other fields of Community
environmental legislation. If satisfactorily implemented, it should
help to bring order and coherence to the mass of Community water
legislation which has built up somewhat piecemeal over the years.
We also welcome (given our long-standing concerns about the transparency
of Community legislative procedures) the new emphasis on public
consultation and involvement in the planning process.
38. Much, however, depends
on what is done both prior to adoption of the Directive and subsequently.
We are seriously concerned over the ambiguities and uncertainties
in the present text, particularly those relating to the definitions
of environmental quality objectives and the recovery of costs
through charges. As an example of what is likely to become a new
generation of Community legislation based on a more strategic
("framework") approach, this will be an important Directive
and deserves to be a model of clarity, written in plain language
(apart from genuinely technical terms) which the citizen can understand.
We have to say that the present draft falls short of that. We
are also concerned that the proposals appear to play down the
significance of measures to deal with floods and droughts (see
paragraph 48 (ii) below).
39. We are content with
the explanations given by DETR for the Commission's proposal to
leave certain Directives free-standing, notably those on Bathing
Water, Drinking Water and Urban Waste Water Treatment. But care
is needed to ensure that there is full consistency between their
provisions and the standards established under the framework Directive.
We recommend that once a satisfactory framework Directive has
been agreed there should be a thorough step-by-step review of
the remaining water legislation, including the Urban Waste Water
Treatment Directive.
40. In general we consider
that the proposals apply the principles of subsidiarity satisfactorily,
but we agree with the Government that there are some aspects-particularly
the prescriptive proposals on cost recovery in Article 12-which
will require careful examination.
41. Although we did
not take evidence specifically on these points, we suspect that
the proposals insufficiently address the management issues that
arise where rivers cross international boundaries, especially
those involving nonEU Member States. We note that certain
important transboundary rivers (the Rhine, the Elbe and part of
the Danube) come under the supervision of Commissions established
under international conventions, and that there is a framework
convention under which member countries of the United Nations
Economic Commission for Europe can cooperate multilaterally or
bilaterally to prevent or control pollution of transboundary watercourses
and to ensure rational use of water resources[16].
But it is not clear how far under these conventions it is possible
systematically to tackle questions of quantity as well as quality.
Apart from pollution control, the issues are not only ones of
flood control (as evidenced by the serious floods earlier this
year along the German-Polish border and in the Netherlands); they
also involve questions of competing demands to control flows,
impound, abstract or divert. These issues by definition have to
be tackled at a level above that of Member States. There may be
a need for the framework Directive to address them more explicitly,
to ensure a consistent approach throughout the European Union.
42. We think that the
Directive might place stronger emphasis on the "polluter
pays" principle, although it is an issue which falls partly
outside the scope of the proposals. Strategies to reduce pollution
from diffuse sources must to some extent depend on the willingness
of users of, say, pesticides to accept that they have a duty of
care: so, to a degree, do the manufacturers. In principle both
should be liable to pay for the polluting effects of products
and their use. We agree with SEPA that the regulatory authorities
may need to have stronger powers to ensure compliance with codes
of good practice, particularly in agriculture.
43. We detect in places
rather too strong an emphasis on water as a commodity. Where water
is abstracted in unsustainable quantities, the user is not simply
taking a finite resource, the price of which is determined by
supply and demand: the impact of his consumption can be at least
as damaging to the environment as pollution, and can impair the
resource and restrict its availability to other users (or potential
users) in a comparable manner. In other words, we would wish to
see the principle of "polluter pays" extended to include
"abstractor pays". However, in so far as domestic consumers
are among the major polluters in this wider sense, application
of the principle through water and sewerage charges has to have
regard to questions of affordability, as we discuss in paragraph 57
below. Special problems may also arise where new development (especially
for housing) is allowed to go ahead, on wider land use planning
grounds, in areas where there is insufficient sustainable water
capacity to meet potential demand.
RIVER
BASIN MANAGEMENT
44. We share the general
support for the concept of management by river basin. As we have
noted (paragraph 41), there are areas in the European Union
which require an international approach, including some where
non-Member States are involved (Rhine, Danube, etc). At a domestic
level there is a practical question-on which we do not feel able
to offer a firm view-of what should constitute river basins for
the purposes of the Directive. In England and Wales it would in
principle be possible to aggregate the Local Environment Agency
Plans (which generally cover sub-basins) to form plans for larger
catchment areas, equivalent to the present Environment Agency
Areas. With further aggregation plans could be produced on the
basis of the Environment Agency Regions, which (with one reduction)
correspond to the old regional water authority areas. In Scotland
the three water authorities could each produce a plan; but their
areas could not strictly be said to represent single catchment
areas: most river catchment areas in Scotland are quite small.
We are concerned that aggregating the plans of unconnected river
basins could be an artificial and bureaucratic process, and we
see a need for flexibility. On the other hand we see a need for
strategic overview of catchment management planning at Member
State level, and note that the view has been expressed in Commission
circles that the number of river basins across the European Union
as a whole should be relatively small. The question is how to
aggregate basin-based monitoring and management systems into units
which are of significance at Community level.
45. The present arrangements
in Scotland (and in Northern Ireland, on which we did not take
evidence), which depend largely on cooperation between different
official bodies, appear to work satisfactorily and we think it
is right that there should be sufficient flexibility in the Directive
to enable these arrangements to continue. Nevertheless we recommend
that the Government gives serious consideration to the need to
bring the powers of SEPA into line with those of the Environment
Agency in England and Wales. As a minimum we recommend that SEPA
should be given abstraction licensing powers and should be a statutory
consultee on flood control plans.
46. We have considered
whether the Directive, as currently drafted, provides sufficient
scope and direction to ensure comprehensive catchment management
planning which takes all relevant factors, including local environmental
circumstances, into account. One view would be that, as this is
a framework Directive, it is important not to be too detailed
or prescriptive as to the means of achieving the aims or the contents
of plans. We tend to take the opposite view that, provided Member
States are allowed proper flexibility to implement the Directive
in the way best suited to local environmental conditions and administrative
structures, no harm would be done-and indeed there would be positive
benefits-in offering fuller and more explicit guidance on the
factors to be taken into account.
47. We have identified
a number of aspects of the Directive which on this view would
benefit from strengthening. Arguably all of them are implicit
in the framework approach and would be taken into account by a
conscientious planner; but it may be right here to anticipate
a less than perfect approach on the part of some Member States
or competent authorities and to make more explicit some of the
topics that need to be addressed in catchment management planning.
We support the RSPB's views on the usefulness of strategic environmental
assessment (SEA) in this context. We have expressed disappointment
to DETR over what we see as an unnecessarily negative attitude
on the part of the Government towards the Commission's current
proposals for applying environmental assessment to plans and programmes[17],
not just to projects as required by the 1985 EIA Directive.
48. We recommend that
particular attention is paid in Council negotiations to the following
issues:
(i) Diffuse
pollution from industry, agriculture and others
Industry,
including agriculture and many local government services, are
major users, abstractors and polluters. It is important that river
basin plans should include measures to tackle diffuse pollution
from their activities. We note the views of the RSPB, SEPA and
others on the particular significance of agriculture in this context.
(ii) Impact
of human activities and other anthropogenic influences
We agree
with the RSPB and others that works such as drainage, river canalization
and flood relief systems can have profound effects on the quantity
and quality of surface and ground waters, and require explicit
recognition in management plans. We disagree with the Commission's
conclusion that such activities are not directly relevant to the
Directive's principal objective of protecting the environment.
Similarly we feel there should be an explicit requirement to take
into account the environmental impacts of activities such as new
road building or housing development. Of course we are not suggesting
that the objective should necessarily be to reverse the effects
of past urbanisation or long-standing industrial development,
but they are factors that need to be taken into account in management
plans. (We are aware of some instances of river restoration which
have successfully undone the effects of past canalization.)
(iii) Wetlands,
lakesides and riparian areas
We do not
believe that proper catchment planning is possible without fully
taking into account the quality and capacity of associated wetlands
and the water holding areas adjacent to rivers and lakes. We strongly
agree with those witnesses who have argued that explicit references
to Community policy on wetlands must be brought into the Directive.
(iv) Climate
change
Although
forecasts of global warming and other aspects of climate change
remain problematical, we think that all plans should include an
account of what, if any, contingency plans are in place to deal
with episodic drought or flooding and with permanent changes in
water sources and resources.
(v) Biodiversity
We accept
the view of the Environment Agency and DETR that there is a satisfactory
linkage between the requirements of the framework Directive and
the specialist conventions and Directives relating to species
and habitats. Nevertheless we see merit in the Directive making
explicit reference to the protection and enhancement of biodiversity
as an essential component of sustainable water policy.
ENVIRONMENTAL
OBJECTIVES
49. In principle, like
the Government, we see merit in the draft Directive's "combined
approach" of reconciling emission limits with environmental
quality objectives and standards, provided it is done with proper
intellectual rigour. It is, however, clear from the evidence we
received that a great deal of work remains to be done in defining
and agreeing those objectives and standards, particularly in relation
to the concept of "good status". The science is complex
and still developing; it was not, however, part of the purpose
of this enquiry to evaluate and offer views on the technical arguments.
Indeed it might be said that the Commission was premature in submitting
its proposals at this stage. On the other hand we recognise the
value of maintaining momentum, and publication of the proposals
now will have helped to cement the Community's determination to
see greater coherence in this major area of environmental protection.
50. What we cannot accept-and
we are pleased that the Government shares this view-is that detailed
objectives fundamental to the success of the Directive and with
profound implications for Member States should be decided by a
Management Committee chaired by the Commission and appointed after
adoption of the proposals. We consider that this would be an inappropriate
application of the principle of "comitology": in our
view it is essential that this task is carried out before the
Council and the European Parliament reach any decisions on the
Directive. In a previous Report[18]
we offered a number of critical comments on the principle (which
applies widely to Community legislation, not just in the environmental
field). It is a subject which we believe would merit an enquiry
by this Committee in its own right. We support the DETR's suggestion
that what is needed in this case, given the draft Directive's
present state of development, is an expert group to provide advice
and assistance to the negotiations in the Council. In accordance
with previous recommendations, we recommend that full transparency
should attend the proceedings of such a group and that expert
NGOs should be given opportunities to make an input. We also recommend
that the group's membership should include, or at least have access
to, the expertise of the relevant UK regulatory and statutory
nature conservation bodies.
51. Without venturing
into detailed technical areas, we nevertheless offer some comments
which we recommend should be taken into account in the process
of setting objectives and standards:
(i) Ecological
status
Although
ecological status is perhaps the most difficult concept to define,
the Environment Agency's work with WRc, and the system of biological
assessment and classification known as RIVPACS[19],
offer some encouragement that an acceptable definition is feasible,
which we would expect to take into account quantity as well as
quality.
(ii) "Good"
status
The meaning
in this context of "good" is fundamental to the Directive
but we find the definition in the text as drafted-which involves
multiple cross-referring between Article 2 (definitions),
Article 4 (environmental objectives) and two Annexes-wholly
circular. The improved formulation suggested by the water industry
(paragraph 30) has much to commend it.
(iii) Surface
water status
Any definition
of the status of surface water is in our view meaningless if it
does not (as with ground water) include quantity. Sustainable
water policy requires the competent authorities to maximise the
efficient use of water for its various purposes, to the benefit
of present and future generations.
16 Convention on the protection of the Rhine against chemical pollution (Bonn 1976) (known as the Rhine Convention); Convention on the International Commission for the protection of the Elbe (Magdeburg 1990); Agreement on cooperation on management of water resources in the Danube Basin (Regensburg 1987); Convention on the protection and use of transboundary watercourses and international lakes (Helsinki 1995). For further details, see Institute for European Environmental Policy, op. cit., Footnote 7 above. Back
17 COM(96)511 final, 4 December 1996. The Select Committee's comments and the Government's reply will be published in a forthcoming Report, in the Correspondence with Ministers series. Back
18 2nd Report, 1997-98, Community Environmental Law: Making it Work, HL Paper 12, paragraphs 29-35. Back
19 River Invertebrate Prediction and Classification Scheme, developed by the Institute of Freshwater Ecology in collaboration with the water industry. For discussion of methodologies of water quality assessment, see the 17th Report of the Royal Commission on Environmental Pollution, Freshwater Quality, Cm 1966, HMSO 1992; a report on the Royal Commission's recent study of the basis for environmental standards is in preparation. Back
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