Flood and Water Management Act
The Flood and Water Management Act embodies far-reaching changes to improve the management of flood risk in England and Wales and encourage the use of Sustainable Drainage Systems (SuDS).
The Act was granted Royal Assent on 8 April 2010 in a ‘slimmed down’ form to ensure the most important elements entered the statute books just before the end of the last Labour Government. However, some provisions of the Act are still to be commenced by ministerial order, introduced in a phased programme. Some important elements of the Act were commenced in October 2010 and more in Spring 2011.
Why is it needed?
The devastating floods in the summer of 2007 are reported to have claimed 14 lives, caused £3.2 billion worth of damage, and affected 48,000 homes and 6,000 businesses. Two thirds of the floods were attributed to surface water flooding. The floods turned out to be a major driver for change.
The Act is also a response to the need for better preparation for Climate Change. Meteorologists predict that the country will experience drier summers and wetter winters in future with more intense rainfall events.
What was the problem?
Historically, there has been a lack of ‘joined-up’ communication between the various bodies involved in managing and reducing flood risks. Responsibilities and accountabilities were unclear. The Act introduces a duty of cooperation between all relevant authorities.
Why is SuDS such a key element?
Although the benefits of SuDS have been recognised for many years, their adoption has been hindered by uncertainties about who would adopt and maintain SuDS schemes, which discouraged developers from embarking on SuDS projects. The Act incorporates major changes which will make the use of SUDS compulsory on new developments.
Is the Act welcome?
Yes. There is general agreement that the Act is a major step forward in achieving improved cooperation and responsibilities for managing flood risk. However, some major concerns remain in the area of funding for the proposed changes.
How was the Policy Developed?
Following the 2007 floods, Sir Michael Pitt completed his seminal review which was the beginning of a much-needed solution. The Government accepted his 92 recommendations in its response to the review, and the majority of them became embodied in the Act.
In addition, the Act was driven by objectives of the Making Space for Water strategy of the Department of Environment, Food and Rural Affairs (Defra).
The Act was also intended to transpose the European Floods Directive into law in England and Wales, but ,as the deadline was not going to be met, this was achieved through the The Flood Risk Regulations 2009 . The directive requires the development of risk assessments, maps and flood risk management plans. However, the aim is to achieve a single coherent set of provisions through the Act.
What are the new roles and responsibilities?
The Environment Agency
Under the Act, the Environment Agency is responsible for developing a new national flood and coastal risk management strategy. The new strategic role applies in relation to all sources of flooding – river (main river and ordinary watercourse), sea water, surface runoff and groundwater.
Lead Local Flood Authorities
Local authorities have a new role to lead and co-ordinate flood risk management in their areas. The 77 new Lead Local Flood Authorities (LLFA) will be the county councils or unitary authorities with overall responsibility for development a Local Flood Risk Management Strategy for their area and for bringing together all relevant bodies to manage local flood risks.
The Act provides wide flexibility for the LLFA to form effective partnerships with other relevant authorities to manage flood risk in the best way for their area. It recognises the important role to be played by district councils, internal drainage boards, highways authorities and water companies.
Regional Flood and Coastal Committees
The Act provides for the replacement of existing Regional Flood Defence Committees with the Regional Flood and Coastal Committees who will have an important democratic input in guiding the Environment Agency’s flood and coastal erosion risk management in their region. It is also intended that they will also have a wider role in assisting the scrutiny of local authority risk assessments, maps and plans required by the Floods Directive.
What does local Flood Risk Management Encompass?
The LLFA is required to develop, maintain, apply and monitor a local strategy for flood risk management, which is consistent with the national strategy, but has its own distinct objectives.
Local flood risk includes surface runoff, groundwater and watercourses. In developing their flood risk strategy, LAs are expected consider the full range of measures possible to minimise the impact of flooding, consistent with a risk management approach. The LLFA will also have a duty to investigate and report on flooding incidents in its area.
The first step in the process will be the publication of Preliminary Flood Risk Assessments at the end of 2011 as required by the Floods Directive and the LLFAs have new powers to request flood information and impose penalties for non-compliance.
The LLFAs are currently producing Surface Water Management Plans to provide a framework for the management and delivery of flood risk strategies moving forward. Defra has produced new guidance to help LLFAs develop their SWMPs and six ‘first edition’ SWMPs have recently been produced by local authorities.
The LLFA will maintain an asset register of structures or features which they consider to have a significant effect on flood risk in their area. New powers have been created to allow structures or features to be designated, to overcome the risk of a person damaging or removing a structure or feature on private land which is relied on for flood risk management.
Sustainable Drainage Systems
The Flood and Water Management Act is a major step forward in making SuDS mandatory in new developments and redevelopments.
There are major implications for those involved in the design, construction and maintenance of Surface Water Systems and SuDS. There will no longer be an automatic right to connect surface water drainage to the public sewer network. Connection will depend on the drainage system being approved to meet new National Standards for SuDS.
A three-month Government consultation on the proposed National Standards for the design, construction, operation and maintenance of SUDS began on 20 December 2011.
SuDS Approving Body
The LLFA will be responsible for establishing a SuDS Approving Body (SAB) which will be responsible for considering every project and granting approval, according to the National Standards. Local authorities will need to understand which SuDS are appropriate in different locations taking account of local factors.
Pre-application discussions between developers, planners, highways authorities and the SAB are encouraged from the earliest stages of site design, so that SuDS uses can be maximised on the site and delays in approval avoided.
Where planning permission is required, applications for drainage approval and planning can be lodged jointly with the planning authority but the SAB will determine the drainage application. The planning authority will notify the developer of the outcome of both approvals, including any conditions.
As part of the approval process, the SAB may request a non-performance bond to be paid, refunded in full if the work is completed satisfactorily. The aim is to protect home owners or local taxpayers from footing the cost of rectifying sub-standard drainage.
Appeals will be allowed against refusal decisions and against the retention of the bond where the SuDS was considered to be sub-standard.
The LLFA has a duty to adopt and maintain new SuDS which serve more than one property, when the work has been completed satisfactorily. Highways authorities will be responsible for maintaining SuDS in public roads to National Standards.
Designation of SuDS
The SAB is responsible for designating SuDS on private property as features affecting flood risk, whether they are private or adopted. The SAB will also be required to place all approved SuDS systems on the register of structures and features.
Are Local Authorities Prepared?
There has been great concern about the shortage of skills and resources for local authorities to carry out their new duties successfully. It is widely accepted that engineering skills in flood risk management have been in decline in the public sector for more than a decade and now budgets and staff are under pressure from spending cuts.
To help local authorities build their skill and knowledge base, Defra have developed a Capacity Building Strategy. The strategy, along with other initiatives, introduces e-learning and workshops; provision of a web-based portal, other tools and data and the funding of a two-year foundation degree in Flood Risk Management for 44 local authority trainees.
Will Local Authorities have Sufficient Funding?
During the development of the legislation, local authorities have consistently expressed concern that they should receive sufficient funding to fulfil their new responsibilities effectively and that the true cost of their new burdens is accurately assessed.
Defra has proposed that funding for Sustainable Drainage Systems can be achieved through the savings made from the transfer of private sewers to water companies and through having to spend less on dealing with flooding because of their improved risk management. However, many including the Local Government Association have questioned this. The way forward for longer term funding of maintenance of SUDS is still to be clarified.
Defra has said it is committed to funding new net burdens under the Act. It is providing £16million for early action to allow at least half of all county and unitary authorities to take early action.
In December 2010 Defra announced that £21 million of grants would be made available for 2011/12 to cover the costs of authorities putting into place their new flood risk management responsibilities under the Act, rising to £36million the year after.
The cross-party parliamentary Environment, Food and Rural Affairs Select Committee raised its own concerns about flooding in its inquiry into Future Flood and Water Management published in December 2010.
Meanwhile, Defra have consulted on a new Future Funding Strategy for capital investment projects for flood and coastal erosion risk management. Instead of a small number of projects being wholly funded by Government grants, payment would be based on outcomes and on a sliding scale with contributions expected from local beneficiaries.