Water Working Group

Response to the Environment Agency consultation exercise “Water for Life and Livelihoods – a Strategy for River Basin Planning”

May 2005

  1. The UKELA Water Working Group brings together a unique combination of specialist lawyers and experts in other water-related disciplines, pooling their experience to review and contribute to developments in water law and policy.
  1. The WWG meets on a quarterly cycle and was unfortunately unable to complete its response until after the formal closing date for the consultation. We hope it will nevertheless be possible for our comments to be taken into account.

The proposals: scope and general principles

  1. The Foreword, Executive Summary and Introduction together give an overview of the shape of what is proposed, and raise a number of important general issues.
  1. The Foreword states:

“The usual administrative boundaries will no longer apply. Instead we will be looking after land and water together…….”

This early recognition in the document that the Water Framework Directive (WFD) is as much about land management as it is about water management is to be welcomed.

  1. It continues:

“The Directive also means that the Environment Agency and others will become much better at working together and achieve the best possible results for the wider environment.”

We see as a key issue the legal and institutional framework of allocated duties and powers that will be needed to deliver WFD objectives and meet legal obligations. At present duties and powers are distributed amongst several different bodies.

  1. The document does not get to the heart of this crucial issue. It is necessary to decide in principle whether (a) the Agency is to be the sole ‘competent authority’[1] in which case it will require radically new and substantial statutory powers to direct all other bodies, in order to be able to be responsible for, and to deliver, WFD objectives; or (b) the Agency together with other bodies are jointly responsible for delivery of WFD objectives, in which case a radically and significantly new legal/institutional framework will need to be established.
  1. We applaud the overall philosophy reflected in the document. But at present its wording is rather vague on what will actually happen in practice.
  1. On the one hand, the Foreword insists that

“ the objectives can only be fully achieved through close, ongoing co-operation between a wide range of government departments, regional government, local planning authorities and others.”

and the Executive summary comments

“We will be dependent on many of them [viz. “ other organisations and stakeholders”] to take responsibility for the improvement programmes and policies that will lead to the achievement of the Directive’s objectives”,

both implying a shared responsibility framework .

  1. On the other hand, the Introduction at 1.3 states:

“ We will ensure1 sustainable water use……, integrating the management of land and water by:

creating2 a more integrated…….

working closely with3 our partners…….

aiming to achieve4 environmental, social and economic benefits concurrently.

directing5 limiting resources…….

In order to realise this vision, we need to work with others, learn from them and build on our existing knowledge”

  1. It is not clear whether the paper contemplates that the Agency will need to acquire the skills/knowledge of other bodies in order for the Agency to be able to do what these other actors currently do. Overall the wording in section 1.3 implies a sole responsibility position, but:

1 – The Agency does not have the powers (and probably the resources) to “ensure”

2 - it does not have the powers to “create”

3 – it is unclear whether this means - a statutory arrangement or a voluntary arrangement

4 – the meaning of this is unclear. What are the deliverables?

5 – the Agency does not have the powers to “direct” the resources of other bodies[2]

  1. These matters will need to be addressed carefully in the proposals that emerge from the consultation exercise.

River Basin Management

  1. Section 2.1 includes a number of expressions yet to be defined, including some of those the subject of our comments above. For example, “ we will work with people and other organisations at all these levels to ensure that together we are able to deliver…..” What arrangements does “work with” actually imply in practice? What will be the legal basis of those arrangements so as to make them effective “to ensure…” ?
  1. At 2.2.3 it is said “.. we will work with others to identify potential actions” and that “we” will review these actions to identify the best option. But it is not clear if the subsequent “we” means the Agency on its own or the Agency acting in partnership with these “others”.
  1. It is also said that “the Secretary of State” will approve, reject or amend the identified best options. We imagine this means the Secretary of State for Environment Food and Rural Affairs. But it would sensible for there to be a framework for other Government Departments to be involved in the decision-making process. The available options will invariably have implications for the responsibilities of other Government Departments – for example, the ODPM and land-use planning.

Document QUESTION re s.2.3

We discuss the division of activities between national, district and catchment levels. Do you agree with dividing activities in the way we propose? If not, do you have alternative approaches to suggest?

  1. The national, RBD and catchment levels are necessary and appropriate, but the sub-catchment level/local level is not given due prominence. In practice this is the level at which real impacts will be felt, and interventions applied.
  1. Government policy in many areas favours “localism”. While that is an imprecise concept, the philosophy behind it – that decision-making about matters with local impact should be taken at local level -- is a sound one that is particularly apposite in relation to this subject. It is disappointing to see the document state that the relationship between CAMS, CFMPs, etc. and River Basin planning below the RBD level is yet to be determined. This means that it has not been given early consideration, which would have enabled efforts in these sectors to be mobilised in support of WFD implementation at an early stage. We would hope to see the post-consultation proposals placing greater emphasis on sub-catchment and local level.

Document QUESTION re s. 2.3.4

We list proposed documents and reports. Do you have any changes to suggest? If so, please describe the advantages.

  1. A key document is missing – i.e. that which clearly defines the legal/institutional framework that will be required in order to effectively implement the WFD, meet the obligations it imposes, and deliver its objectives. No doubt the intention is that the documents and reports proposed by the paper will serve this purpose collectively. But we think that the system will lack effectiveness in the absence of a key document defining the framework.

Co-ordination of water planning activities

  1. “By 2009, we will further integrate our existing activities within practical limits and current legislation”

We fear this statement means very little. It does not indicate what level of integration is needed and if or how that will be achieved. At the same time we are concerned about the implications of “within practical limits” if it means “within the limited resources that the Agency has been given” of “within current legislation” if it means no new legislation is anticipated between now and 2009. If those constraints persist, then -- disappointingly -- very little can be expected. As regards legislation, even if there is pressure on Parliamentary time for primary legislation, we see no reason in principle why the necessary steps should not be taken by way of European Communities Act regulations as part of the overall scheme of implementation of the WFD.

Document QUESTION re s.3.1

We consider integration of our planning activities:
a) Do you support our approach to further integration? Do you have alternatives? Please tell us about
the benefits of these.
b) Would you support the move to plans that encompass all water issues?
c) Do you see advantages in continuing to produce some single-issue plans? If so, which ones?

  1. Point (a): While the right issues are raised, it is very difficult to comment on an approach much of which is worded in such vague terms. The statements tell us little or nothing about what will, or even might, actually happen. Some examples of what is envisaged (in all or some of the steps listed) would have been a great help. It is important that the post-consultation proposals should speak of a clear vision – now 5 years down the line from the WFD – of what implementation of the Directive will actually look like in practice.
  1. One assumes that the BRITE re-organisation of the Agency was conducted with a firm eye on expected or known WFD obligations. If so, it would be helpful to know in what areas, and to what extent, the Agency thinks that further changes are required to the way it works in order to complete the implementation process effectively in the light of the consultation responses.
  1. Point (b): Ultimately, plans that encompass all water issues will have to be produced. That will not be easy; if it were, it would no doubt already have been done. But there is limited point in expending energy in perfecting an integrated water issues plan if that plan itself lacks integration with the plans[3] of other sectors which directly and indirectly interface with any of the water issues. There is a need for a joined-up approach, which again raises the general issue, noted above, of the legal arrangements governing the relationship between the Agency and other actors.
  1. Point (c): It will probably be necessary to continue to some extent with single-issue plans. This will ensure that each issue ultimately presented at the integration stage arrives there in a reasonably robust and sound state. These plans will provide the material on which more robust decisions can be reached when trying to balance different objectives in developing an overall water plan.

Document QUESTION re s.3.2

We look at how the strategy links to wider planning processes:
a) Do you think the groups of external planning processes reviewed are the key links for us in delivering Integrated River Basin Management? If not, please provide information on other areas of planning and how they relate to River Basin Management.
b) Do you have any comments on the sections about the different groups of activities?
Spatial planning
Periodic reviews of water companies
Biodiversity plans
Integrated Coastal Zone Management
Rural Land Management

  1. The five groups of activities identified are all important but the plans governing them have different legal status. The Development Plan is the most established and until recently was the only plan with statutory status.[4]
  1. Section 3.2 comments

“ There are various planning processes, led by other organisations[5], which cover issues that have an impact on water. We will work with these organisations to ensure that we co-ordinate these plans within river basin planning” –

  1. We have some difficulty understanding exactly what commitment this statement involves. Once more, this is linked to the problem of lack of definition of a proposed institutional framework for joint working between the Agency and others. What does the phrase “work with” mean in this context? Is it a case of advising or compelling? This is an example of the sort of point that cries out for clarification within a legal/institutional framework. Who decides, and how, the outcome of conflicts between obligations and/or objectives?
  1. The legal framework must provide a clear steer to the resolution of these issues. In our experience, requirements on other actors along the lines of “having due regard to” matters within the Agency’s purview, or giving the Agency influence as a consultee (statutory or otherwise) in those actors’ decision-making processes, are unlikely to be adequate. Under some aspect of the current legal framework – in land-use planning, for example -- the Secretary of State has the final say. But the DPM/First Secretary of State operates in a statutory and policy framework quite distinct from those for which his Cabinet colleague at DEFRA is responsible. So even at the highest level of Government there are major demarcation issues which can only be resolved by a clear and well-drafted legal framework for water planning issues.
  1. Section 3.2.1 deals with spatial planning. The wording in this section[6] conveys the right messages and highlights key issues. But once more it suffers from the absence of a clear indication of the proposed legal/institutional framework to support delivery of the required outcomes in the event of conflicting objectives/obligations. It is quite correctly suggested that “ impacts on the water environment could become blocks to development” but it does not also mention the reverse, i.e. that development could constrain delivery of water environment objectives. Is the implication of this position that the Agency believes that the WFD provides them it with the means for blocking inappropriate proposals in Development Plan Documents, or does the Agency recognise that these powers will need to be spelled out in the implementing regime?
  1. Section 3.2.2 – Periodic Reviews: it would make much sense for the Periodic Review process cycle and the RBM planning cycle were co-ordinated. We see no reason why this cannot happen.
  1. Section 3.2.3 – Biodiversity Plans: the intention “that conservation interests are part of the mainstream process, rather than a separate one”, definitely points in the right direction, as does the reference to “this partnership approach”. But again we must raise the need for a properly defined legal/institutional framework to shape the process and the relevant partnerships.
  1. Section 3.2.4 – ICZM: this section raises all the important issues with respect to the perhaps somewhat neglected area of the management and protection of the marine water environment. However, once more, it is important that the reference to “joint working” should be picked up by firm and clearly defined proposals for the legal/institutional framework.
  1. Section 3.2.5 -- Rural Land Management: at present there is a pragmatic, ‘suck-it-and- see’ approach in this are. This may go some way to achieving objectives, but is unlikely in the longer term to sit comfortably with the proactive, plan-based approach required by the WFD. There is no reason why specific agreements and schemes should not be used as a method of coalface implementation, but they must fit into a proper plan-based regulatory framework so that their effectiveness can be evaluated and reinforced.

Working Together

Document QUESTION re s.4

We present our approach to working together:
a) Do you agree with our proposed approach to working together?
b) Are there any other matters concerning working together that you would like to see in this strategy?

  1. This section of the paper correctly recognises the need for partnerships operating at the four levels (National, River Basin, Catchment (or sub-catchment) and Community (or local), and the need for co-ordination between these levels.
  1. The key word here is “partnerships” but this section has avoided the key question we raised earlier: what is proposed as regards the legal and institutional framework under which any partnership will operate?
  1. In places, the wording implies the Agency will be in command of these processes, i.e. that it will where necessary ultimately dictate to the other parties what will happen. But that is not what is connoted by the term “partnership”, which suggests to us a relationship in which the parties have shared responsibilities and powers, in order to deliver the required objectives. In any case the legal/institutional framework to deliver either of these options is not yet in place.
  1. We think it is essential that the post-consultation proposals should give a clear indication of the nature of the proposed legal and institutional framework, carefully defining be relationship between the Agency and other players.

Assessing Progress

Document QUESTION re s.5

We present key success criteria.
Are these appropriate? What alterations do you suggest?

  1. The 8 listed criteria are all important, or at least relevant. But in most cases there is as yet no clear indication of how they will be judged. Without measurable indicators, the criteria are in effect no more than a list of aims.
  1. For example in [1.], “no deterioration” is a measurable criteria, but in [2.], it will be necessary to define what “increasingly”, “effective” and “relationships” actually mean. In [3.], it will be necessary to define what is denoted by “more” and “effective”.
  1. In [5.], it will be necessary to explain how and by whom “proportionate” and “effective” will be evaluated. Does “proportionate” denote what can be provided within current resources? Or the minimum necessary in order avoid infraction proceedings?
  1. In [6.] how will the “partnerships” be “established” -- under a voluntary or a statutory basis? In [7.] what does “a recognised contribution” mean?

Concluding remarks

  1. It will be seen that on the whole we welcome the tenor of the consultation paper. Where we have concerns, they go mainly to the current lack of detailed proposals for a robust institutional framework within which the objectives of the WFD can be successfully attained. In particular we see it as essential that implementing legislation carefully define the relationship between the Agency and other players, enabling unseemly demarcation disputes to be avoided and ensuring that the WFD objectives are not frustrated by conflicts in the plan-making and decision-making processes.
  1. We look forward to studying the proposals that emerge from the consultation exercise, and would be pleased to assist the Agency in shaping the necessary legislation.

UKELA WaterWorking Group

c/o Gordon Nardell

39 Essex Street, London WC2R 3AT

tel. 020 7832 1111

27 May 2005

1

[1] The Water Environment (Water Framework Directive) (England and Wales) Regulations 2003 (SI 2003/3242) fail to explicitly identify a “competent authority”. They refer only to “the appropriate authority” (= Secretary of State or the Welsh Assembly) and of “the Agency”. Significant powers rest with “the appropriate authority” and significant duties with “the Agency”.