Draft Flood and Water Management Bill

HERTFORDSHIRE COUNTY COUNCIL

ENVIRONMENT ANDPLANNING CABINET PANEL

MONDAY 14 SEPTEMBER 2009AT2 P.M.

DRAFT FLOOD AND WATER MANAGEMENT BILL

Report of the Director of Environment and Commercial Services

Author: Andy Hardstaff, Land Mangement Projects

Tel:01992 556470

Executive Member:Derrick Ashley (Environment Planning and Waste)

1. Purpose

To inform the Panel aboutthe potential implications for Hertfordshire of proposed new roles for local authorities, outlined in the draft Floods and Water Management Bill. To seek the Panel’s views on preparatory actions in advance of anticipated legislation.

1. Summary

2.1.During the summer of 2009 the Government carried out an extensive consultation on the draft Flood and Water Management Bill. The Bill is intended to give effect to the UK Government’s response to Sir Michael Pitt’s Reviewof the 2007 floods. A major part of the proposed legislation outlined in the bill is aimed to promote the leadership and infrastructure necessary for thesustainable,coordinated management of flood risk.

2.2.Presently there is no confirmed timetable for developing the Bill and the precise roles of local authorities will only be confirmed at enactment.However, despite this uncertainty, the context for and content of the draft Bill allows a fairly confident assessment to be made about: the division of responsibilities between the Environment Agency and local authorities,the need to develop flood risk management partnerships,new areas of work for local authoritiesandthe leadership role for County and Unitary authorities.

2.3.The research carried out to prepare the Council’s response to the consultation served as an informal audit to assess existing activity in Hertfordshire against the roles proposed for local authorities in the draft Bill. This report analyses some general issues and opportunities relating toflood risk management, which will still be valid whatever form the Bill takes when it is enacted. Some suggestions for steps HCC could take to prepare for likely duties and,where possible, estimates oflikelyresource requirements, have also been included.

1. Recommendation

3.1 That the Panel notes the report and gives its views on preparatory

actions.

1. Background

4.1.Flooding events in the UK and Europe over the past decade, and an increasing awareness of the potential impacts of climate change, have been the catalyst for the UK Government and the European Union to provide frameworks for the better management of flood risk.

4.2.The ‘Foresight: Future Flooding Study’ (2004)[1] assessed flood risk in the UK over a 30 to100 year timescale to help inform long-term policy. Also in 2004, the Government published ‘Making Space for Water’ which sought views ona range of flood and coastal erosion risk management issues. Planning guidance relating to flood risk in PPG25 was revised and published as PPS25[2] in December 2006. The serious flooding events of 2007 prompted the Government to commission Sir Michael Pitt to review the management of flood risk.

4.3.When Sir Michael Pitt’s review, ‘Learning Lessons from the 2007 Floods’ was published in June 2008 it listed 92 recommendations to improve flood risk management through national and local action. As part of their response to the ‘Pitt Review’, the Government has published the draft Floods and Water Management Bill (April 2009). The Bill also serves as a mechanism totranspose into legislation EU obligations arising from the Floods Directive(2007/60/EC) [3]and Water Framework Directive(2000/60/EC)[4].

4.4.The purpose of the Flood and Water Management Bill was summarised in the consultation document: “It is intended to create a more comprehensive and risk based regime for managing the risk of flood and coastal erosion as well as responding to severe weather events such as flood and drought which are set to become more frequent as a result of climate change.”

4.5.The draft Bill proposes that responsibility for management of flood risk relating to coasts and main rivers will remain with the Environment Agency (EA) and that local authorities (Unitary Authorities and County Councils) will lead the coordination of flood risk management relating to all other forms of flooding. This will include:-

• Surface water flooding – run-off from rainfall before it enters drains and watercourses.

• Flooding from ordinary water courses –ditches, streams and channels that are not designated as Main Rivers. (MainRiver is a specific designation given by the Environment Agency and can apply to relatively small channels).

• Groundwater flooding –for example from the emergence of springs or a local rise in the water table.

4.6.This will be coordinated through frameworks, for partnership working on flood risk, called Surface Water Management Plans (SWMPs). SWMPs will be developed for areas at higher risk that are identified through historical records or flood modelling. They will identify cost effective measures that the local flood risk management partners could take to reduce risk.

4.7.The draft Bill also proposes a raft of changes to responsibilities, duties and structures of organisations and agencies in order to support and facilitate the proposed new roles of the EA and local authorities. It has also been recognised that encouragement is needed to promote sustainable drainage practices and there is a section relating specifically toSustainable Urban Drainage Systems (SUDS)[5]. There are also clauses relating to the regulation of reservoirs and some specific aspects ofthe water supply industry.

4.8.The range of proposed duties and potential implications for Hertfordshire’s local authorities are summarised at Appendix 1.

4.9.HCC prepared and submitted a response to the consultation which closed on 24 July 2009. (A copy of the submission can be found at or it can be supplied by request from the report author). The consultation was extensive as well as being detailed and technical in some areas and will not be described in full in this report.

4.10.At the moment the timetable for enactment of the Flood and Water Management Bill is uncertain. It is a substantial Bill and Defra officials have indicated that there might not be time to process it in the next parliamentary session. There is an imperative to transpose the EU Floods Directive into UK law by 26 November 2009 and the requirements for flood risk planning included in the draft Bill are the expression of this action. The Pitt review recommended that the legislation should be a single unifying Act, and that the duties on authorities and powers to act should go through in the same Bill. This view has also been echoed throughout the consultation response.

4.11.Improvements to the way flood risk is managed have already started in advance of the draft Bill – with the impetus of responding to the Pitt Review,Defra has funded some pilot studies on developing flood risk management plans (Integrated Urban Drainage Studies – IUDS and Surface Water Management Plans - SWMPs). These have concentrated on areas where there has been a substantial flooding problem in recent years, this included: Hull, Leeds, Gloucestershire and areas of North London.

4.12.In preparation for their role of supporting partners the Environment Agency are developing surface water flood model information and developing links with local authorities.

4.13.Using information supplied by the Environment Agency the Hertfordshire Resilience Forum has published a Multi Agency Strategic Flood Plan[6] to guide preparation and response to major and widespread flood events. All of the planning authorities in Hertfordshire have produced Strategic Flood Risk Assessments, required under PPS25, to guide the location of development away from the highest risk areas and ensure flood risk is adequately considered in design. The Environment Agency has an oversight role on such plans and has also recently published improved modelling data which will inform future revisions.

4.14.Defra is also making approximately £15M available to help fund the development of SWMPs by local authorities – details of the criteria are expected in the autumn. A large proportion of the fund is to be targeted at the 50 authorities identified as being at the greatest risk of flooding (it is not known if this will include any parts of Hertfordshire). Some funding will be made available for outside the ‘top 50’ as part of a competitive scheme for measures which are seen as “early implementation” of Pitt recommendationsfor actions that will be covered by the draft Bill such as SWMPs.

4.15.HCC officers have been participating in the “Pitt Forum”, a locally convened group which examines issues relating to flood risk and surface water management. The forum has representatives from authorities in and surrounding Hertfordshire together with consultants, contractors and the Environment Agency. Participation by some North London boroughs is especially valuable due to their experience as pilot flood risk management authorities and in a wider consortium called “Drain London”. It has been proposed that the Pitt Forum develops along the lines of “Drain London” by formalising the membership to develop a common framework which will facilitate inter authority cooperation and also have benefits for regional partners such as the Environment Agency and water companies by promoting an efficient forum for communication.

1. Issues and opportunities arising from the draft Bill

5.1.The major concern arising from the consultation was the availability of adequate resources to implement the duties likely to fall to local authorities. There are two aspects to this resource capacity - levels of funding together with the availability of knowledge, skills and competence.

5.2.The Regulatory Impact Assessment published with the draft Bill concluded that there would be no, or only very minor, additional burdens falling to local authorities , as extra costs would be offset by savings. The evidence for this was not convincing and the practicalities were very complex in terms of matching savings in one area with extra expenditure in another. HCC,along with other consultees, hashighlighted that some of the assumptions that have been made in this regard, were not properly described and calculated in the draft Bill, and therefore the conclusions of the Regulatory Impact Assessment have been questioned. The result of this challenge remains to be determined and also the actual resource requirements will depend on the final legislation.

5.3.Assuming that adequate funding is made available, the capacity to carry out the role will require additional staff resources. Developing and maintaining flood risk plans will require new skills and frameworks. Aflood risk management asset register needs to be set up and maintained. HCC may have to adopt and arrange for the maintenance of SUDS. This will require extra capacity in development control as well as mechanisms for monitoring design standards and securing maintenance.

5.4.Research carried out by Mouchel on behalf of the County Surveyors Society and Local Government Associationin response to the draft Bill indicated that anything up to 8 full time equivalent posts would be required by CountyAuthorities to implement the proposed new roles and duties relating to flood risk management.

5.5.At the moment it is not clear how responsibilities would be split between county and district authorities. And it may better suit local circumstances for counties to delegate roles to district authorities. As SWMP frameworks will require partnership working between authorities it may be appropriate to establish consortium working.

5.6.The next section of this report is an overview of some of the main issues in the table at Appendix 1 - Potential implications for HCC of activity proposed in the Draft Flood and Water Management Bill. It has been divided into 4 topics – Leadership, Partnership, Planning and Infrastructure.

5.7.LEADERSHIP

If enacted as drafted the Bill identifies County authorities as the accountable body for local flood risk management from sources other than MainRivers and sewers.

The key tasks would beto ensure a local flood risk management partnership identifies areas of significant flood risk and develops programmes to reduce the risk in line with a published strategy. Flooding incidents would need to be investigated (although this might eventually be a duty for district authorities). Progress would need to be reported annually and there should be public involvement in the process.

HCC already reports on one national indicator directly linked to flood risk management - NI 189 ‘Flood and Coastal Erosion Risk Management’. Developing and implementing plans for flood risk management will contribute towards activity measured under NI 188 ‘Planning to Adapt to Climate Change’.

The lead role would require that the authority to call on specialist advice and support which could be linked to the “intelligent client” role described under the following topic areas.

5.8.PARTNERSHIP

Surface Water Management Plans (SWMPs) are intended to be implemented through “frameworks” which will require partnership working. Partners will need to share information to help initially identify areas of high flood risk and subsequently the development of more detailed modelling required for SWMPs.

Co-ordination with the Environment Agency and Water Companies will be a key aspect for local authorities. There will be clear cut cases of flooding from surface water, ground water and ordinary water courses - which is proposed to be HCC’s responsibility to manage. However in many urban areas flooding is likely to be due to a combination of these causes together with sewers or main rivers – which are the responsibility of water companies and the Environment Agency respectively.

Whilst the previously mentioned Defra pilot studies on developing flood risk management plans (SWMPs), have not yet been completed, they have already highlighted the difficulties posed by the different cultures of local authorities and the private sector water companies. The information about flooding incidents and structure of the sewer network is deemed to be commercially sensitive, the costs of making it available may be an issue and there is reluctance by some water companies to share the information because of concerns about potential liability.

When considering improvement works to infrastructure, water companies have a higher trigger threshold for specification than proposed for SWMP priorities. Sewers are generally built to accommodate a 1 in 30 year events (3.3% probability) but it is suggested that SWMPs will aim to reduce flood risk in areas that experience a 1 in 100 year event (1% probability).

Water company investment in infrastructure is regulated by OFWAT through the AMP[7]process – although there can be mid-term reviews of the process it may nonetheless inhibit the ability of Water Companies to respond to the programmes of local flood risk partnerships. The commercial imperative may be reinforced further by the Government’sresponsesto Cave Review[8] which was published at the end of April 2009.

A key part of working with the water companies will be an understanding of how to manage their potential contributions and ensure that the regulatory framework takes account of their role in flood risk management.

5.9.PLANNING

The production of the plans and programmes proposed in the draft Billshould be relatively straightforward. The mechanisms for developing and delivering them are linked to the Leadership and Partnership topics.

The authority is likely to need to develop an “intelligent client” role to guide HCC participation in the process and commission appropriate contributions from partners.

5.10.INFRASTRUCTURE

This topic covers flood risk management infrastructure and implementation of work programmes. Activity will include developing and maintaining asset registers which will be linked to flood risk assessments and SWMPs.

Expertise will need to be developed in the adoption and maintenance of SUDS. This is another topic area that would benefit from the “intelligent client” role and would be supported by expertise in a wider flood risk management partnership.

There will also be links to other areas of HCC activity including Highways and Land Management. Interest is increasing in the potential role that land management can play in flood risk reduction. Decisions such as the choice of crop being grown can be significant. There is also scope to encourage land to be managed to primarily serve a flood risk management function – which could be funded through mechanisms such as the current Environmental Stewardship Schemes. Promotion of land management to reduce flood risk is a role that could be taken on by the Countryside Management Service – there is more detail about this approach at Appendix 2.

1. Next Steps

6.1.Officers will continue to monitor the passage of the draft legislation and use the information to inform alignment of HCC activity with potential duties.

6.2.It is suggested that HCC start to develop its future leadership role bybuilding on the work of the Pitt Forum. HCC could support, with officer time, the process of constituting the group and formalising the membership. It is suggested that the group adopt the EA North East Thames area boundary to define its geographical extent. This would take in areas of Bucks, Beds, Essex and some North Londonboroughs.