CONSULTATION ON THE IMPLEMENTATION OF THE REVISED BATHING WATER DIRECTIVE

Introduction

  1. The UK Environmental Law Association aims to make the law work for a better environment and to improve understanding and awareness of environmental law. UKELA’s members are involved in the practice, study or formulation of Environmental Law in the UK and the European Union. It attracts both lawyers and non-lawyers and has a broad membership from the private and public sectors.
  2. UKELA prepares advice to government with the help of its specialist working parties, covering a range of environmental law topics. This response has been prepared with the help of the Water working party.
  3. UKELA’s current priorities include:
  4. Informing and actively influencing the broad law and policy debate on climate change including the measures to reduce greenhouse gas emissions and manage their impacts at the international, EU and domestic level;
  5. Helping deliver more effective and efficient environmental regulation including enforcement at the EU and UK level, not lower standards nor less regulation unless the same or better outcomes will be achieved.
  6. UKELA works on a UK basis and seeks to ensure that best legislation and practice are achieved across the devolved jurisdictions.
  7. UKELA makes the following comments on the Consultation on the Implementation of the Revised Bathing Water Directive, issued in November 2007 for which the response deadline is 4 February 2008.

CONSULTATION QUESTIONS

Question 1

  1. To aim to do no more than the minimum required by the revised Bathing Water Directive (“rBWD”) would appear to treat the standards required to be achieved as guide values, rather than minima lower than which standards are not permitted to fall. Given the constraints of a dynamic environment in achieving certainty of compliance, and the fact that as a public health directive it probably confers rights on individuals, design standards need to be significantly higher than to achieve bare compliance upon the balance of probability.

Question 2

  1. The purpose of the Directive (protection of public health) requires the most effective measures to be applied in relation to those waters which present the greatest risks to their uses. The question of increasing/maintaining “excellent” bathing watersor “Blue Flag” waters or beaches is a matter of economic priorities, and is neither the primary nor secondary objective of the Directive. Article 5(3) of the rBWD makes clear the hierarchy of obligations of member states.

Question 3

  1. The prediction element should already be in place as part of the “necessary measures” under Directive 76/160/EEC. Given the duties owed to bathing water users, these measures, building on EA local knowledge bases, should be applied at least to all waters predicted “poor”. In some cases the waters concerned are adjacent to shellfish waters designated under Directive 79/923/EEC, and these measures should have been implemented under Article 5 of that directive and/or under Directive 91/492/EEC.

Question 4

  1. Logically, to the extent that sewerage expenditure is avoided, the costs should in theory be recoverable through the periodical review of water charges. In practice, one is aware that numerous devices have been exploited in the past to avoid or delay the implementation of water quality directives. Abortive expenditure upon sewerage infrastructure in pursuit of staggering has been eventually approved by ministers (e.g. in relation to Falmouth and Torbay). In theory, to the extent that the imposition of collateral obligations in relation to bathing waters is necessary to achieve compliance, the obligations can be placed upon water companies through existing mechanisms under the Water Resources Act 1991 and Water Industry Act 1991. In particular, short term discharge consents can be granted on the basis of provision by the undertaker of the requisite measures.
  1. If it is not possible to impose the obligations directly upon sewerage undertakers (given the political imperatives which influence the UK government in relation to each periodical review),UKELA would recommend that appropriate provision is made to local environmental health authorities to fund the surveillance and public information elements.

Question 5

  1. The rBWD requires that Member States should take such realistic and proportionate measures with a view to increasing the number of good and excellent waters. For the users to pay directly or indirectly would not be in accordance with the polluter pays principle, and it would represent a prioritisation of improvements based upon willingness of resort operators to fund them, which appears inappropriate.

Question 6

  1. The implementation of Directive 76/160/EEC has singularly omitted any obligation on beach owners/operators to provide such information. While obligations are imposed on “controllers” this is of doubtful effectiveness; some beaches may be accessed from the public highway, and the definition of control appears to break down in this regard. The obligations of “controllers” are to publish information which then has to be replicated by the EA. There appears to be no provision controlling the precise content or quality of the information provided by the beach controller, who appears to be able to dictate the content of the information supplied by the EA even if it is wrong.

Question 7

  1. The provision of warning information is essential for management of risk (cf. the Annapolis protocol). However the provision of the warning information is not to help bathers “avoid” bathing, but to inform bathers of the risks. Where bathing must be avoided, it may require to be prohibited. While one model byelaw enables temporary closure of bathing waters on health grounds, UKELA is not aware of local authorities having either adopted such byelaws or, if they have, having implemented those powers.
  1. Regulation 13 is clearly inadequate. While Article 5 (4) (b) gives options of prohibition or permanent advice, Article 7 does not, and renders temporary prohibitions mandatory. In those circumstances the Regulations should enable legal prohibition of bathing, at least where the Directive renders this necessary.

Question 8

  1. Yes.

Question 9

  1. Since the BWD was introduced, the utilisation of locally identified beaches for surfing appears to have grown, and their availability and suitability is advertised by local authorities as part of the amenities of their areas. Surfing is probably the only water sport which is within the directive meaning of “bathing”, particularly as practised with body boards rather than Malibu boards.
  1. As surfers are the persons most significantly at risk of infection by virtue of their frequency and duration of exposure and the degree of immersion and therefore ingestion of the bathing water, the health needs of such persons appear to be a priority; by contrast the exposure of aged, infirm and immunity-compromised individuals may tend to be very limited.
  1. From this point of view, there appears to be a need to consider:
  2. the designation of further beaches where these activities are the dominant form of bathing; and
  3. the duration of the bathing season,as large numbers of persons bathe outside the official bathing seasons as currently adopted in England Wales and Scotland.

Conclusion

19.UKELA would be happy to consider any further issues raised if this would be helpful to Defra.

Contact:

Mothiur Rahman

Co-convenor,UK Environmental Law Association Water Working Party

c/o Bircham Dyson Bell LLP, 50 Broadway, London SW1H 0BL

Telephone: 020 7227 7012

Email:

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