Future Flood and Water Management Legislation

Memorandum submitted by Ewan Larcombe (FFW 05)

1) Summary - This submission seeks to consider some unresolved flooding and flood management legislation, policy and practice issues. In particular the Flood Risk Regulations 2009 and the Flood and Water Management Act 2010 suffer shortcomings due to time pressures caused by potential EC infraction and Parliamentary wash-up procedures. The main themes are ‘the duty to maintain watercourses for flood water conveyance purposes’, the reduction in the probability of flooding, ‘the active involvement of interested parties’ in the flood defence process, and the variation from ‘investment in flood defence’ to ‘cost of consequences’.

2) Introduction - A significant number of people are at risk of flooding and this country has experienced some severe flood events in recent years. The cost of the 2007 summer flooding was about £3bn and if opinions are to be believed, the probability of flooding occurring is increasing over time.

3) Probability in lieu of risk - I prefer to use the word probability rather than risk in order to avoid confusing the likelihood of the event occurring with the consequences associated with the event itself. In my opinion the objective should be to reduce the probability of flooding.

4) Flood water conveyance capacity - Surely the primary purpose of a river is to carry water from the land to the sea, yet in practice watercourse conveyance capacity is ever-decreasing due to lack of maintenance, with many backwaters totally abandoned.

5) The Thames - In my area continuous River Thames dredging took place after the 1947 flood event. Unfortunately since responsibility for the Thames transferred from the National Rivers Authority to the Environment Agency in 1995, the specially designed and built equipment has been disposed of, operators terminated and disposal sites closed, all without consultation. This is in spite of hydraulic model research evidence from HR Wallingford concluding that increased levels of Thames dredging would be required after construction of the Maidenhead, Windsor and Eton Flood Alleviation Scheme (now called the Jubilee River).

6) Critical Ordinary Watercourses - To make matters worse, since the Critical Ordinary Watercourses were re-designated as Main Rivers in about 2005, the responsibility for management of those watercourses was transferred from the Local Authority to the Environment Agency who then abandoned maintenance.

7) Duty to maintain the watercourse - The Environment Agency is responsible for the Thames and has a legal duty to maintain the Thames for navigational purposes and also the power (but no duty) to maintain the Thames for flood defence purposes. I believe that the organisation/person responsible for the management of a watercourse should have a duty to ensure that the flood water conveyance capacity of that watercourse is maintained. That duty is surely an investment rather than a cost and may be accomplished by way of riparian responsibility and actions.

8) The gutter analogy - If the gutter on my house is overflowing and rainwater is damaging my walls, I fix the problem by cleaning the gutters and down pipes. If my front drive is flooding because the drainage on my property is blocked, then I unblock the drains. If the road outside my property is flooding then I contact the appropriate responsible authority (possibly a number of times) and the problem gets fixed. If the local water course is blocked – then nobody wants to know, and you are just run around in circles between the EA and the authorities. The system for watercourse condition monitoring and maintenance surely fails due to lack of legal duty to maintain watercourses for flood defence purposes.

9) New legislation - This problem is not improved by the additional powers and responsibilities imposed on the lead local flood authorities by the Flood Risk regulations 2009 No 3042 and the Flood and Water Management Act 2010. Directive 2007/60/EC on the assessment and management of flood risks came into force on 26 November 2007. This Directive now requires Member States to assess if all water courses and coast lines are at risk from flooding, to map the flood extent and assets and humans at risk in these areas and to take adequate and coordinated measures to reduce this flood risk. This Directive also reinforces the rights of the public to access this information and to have a say in the planning process. In particular, it places duties on the Environment Agency and local authorities to prepare flood risk assessments, flood risk maps and flood risk management plans.

10) Legislative shortcomings - Unfortunately delay in transposing the Directive into UK legislation revealed the possibility of compliance failure and left the Government open to infraction and significant reputational harm. As a direct consequence of this failure the Flood Risk Regulations 2009 No.3042 were printed on 13 November 2009, laid before Parliament on 19 November 2009 and came into effect on 10 December 2009. In my opinion this legislation was rushed through Parliament with insufficient debate or scrutiny which led directly to shortcomings in the transposition.

In particular the Flood Risk Regulations 2009 fail to reflect the requirements of the Directive as follows:

Article 10 (1) - In accordance with applicable Community legislation, Member States shall make available to the public, the preliminary flood risk assessment, the flood hazard maps, the flood risk maps and the flood risk management plans.

Article 10 (2) – Member States shall encourage active involvement of interested parties in the production, review and updating of the flood risk management plans.

The Flood Risk Regulations merely state in Part 4, para. 27 s 7 that

‘the Environment Agency and each lead local flood authority must consult the following about the proposed content of a flood risk management plan-(a) authorities listed in regulation 36(3) that may be affected by the plan, and

(b) the public’

Thus the Environment Agency and the newly created lead local flood authority firstly ignore the option to engage with interested parties at an early opportunity (thus failing to exploit potential synergistic benefits) and secondly the so-called ‘public consultation’ then becomes just a rubber-stamping exercise.

11) The use and role of IT - I believe there is a need for a publicly accessible, web based register of all watercourses, complete with detailed maintenance regime, maintenance record and responsibility. The public should be able to input both photographs and text to the register.

12) The role of Parish and Town Councils in flood defence - These are the people in the front line of flooding. They know the area, the problems, the history and what to look out for. Their intimate knowledge and geographical proximity to the problem is priceless. They need to be involved in the flood defence process. In addition I believe there must now be a legal duty on Parish and Town Councils to regularly monitor and record the condition of the watercourses and local infrastructure on their patch. That is not to say that they need engineering knowledge, but more that they have a feel for what is important and the ability to pass that information on to those in authority. On the understanding that ‘prevention is cheaper than cure but 100% prevention is unrealistic’ there are some helpful measures that Parish and Town Councils can take that involve negligible cost to the Treasury purse. These measures relate to flood prevention and preparedness, warning, event and recording, and finally the recovery process.

13) The Flood Action Group - A web based asset register has been suggested but an electronic register alone is insufficient to deal with the problems of lack of drainage maintenance. The duty to monitor and keep the register up-to-date should begin at the lowest level of local Government. These are the people who live in the area and are interested in the welfare of the local people. Every Parish or Town Council should set up a Flood Action Group to create and maintain a flood plan, a watercourse/drainage asset register and a critical infrastructure register. The Flood Action Group would regularly monitor state of all assets (watercourses and drains) and critical infrastructure within parish and monitor groundwater levels if appropriate. They could communicate with adjacent authorities both upstream and down stream, and submit regular status reports to Borough Council/Unitary Authority and website.

14) The lead local flood authority - The lead local flood authority could maintain a web based schedule of drainage assets, complete with maps and plans, ownership details, within banks capacity, maintenance responsibility, maintenance records and schedules for planned maintenance. Also a record of flood event details to include flow and level measurements. The website needs to be publicly accessible – so that public can both read and add text/photos if required.

15) The role of the insurance companies - The insurance companies (and thus the policy holders) are now paying more as a consequence of the failure of the Environment Agency to maintain the conveyance capacity of the watercourses. The insurance companies now continue to increase both premiums and excess for flood insurance. Maybe the insurance companies should be supplying engineers to inspect and report on flood defences in the same way that they do on ships, lifts and cranes. It is the Environment Agency who has neglected flood defences, not the local people.

4 October 2010