On 8 April 2010 the Flood and Water Management Act 2010 (the "Act") became law. The Act is a wide-ranging statute designed to legislate on different aspects of water use and management. It is an important piece of new legislation because it addresses both the management of water scarcity (droughts) and surplus (flooding), the impacts from which are expected to increase over the next few decades due to increased climatic variability. The Act applies to England and Wales and will impact to varying degrees on most business sectors. Whilst the Act has been passed by Parliament, the various provisions will be brought into force at later dates by Orders by the Secretary of State.
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On 8 April 2010 the Flood and Water Management Act 2010 (the "Act") became law. The Act is a wide-ranging statute designed to legislate on different aspects of water use and management. It is an important piece of new legislation because it addresses both the management of water scarcity (droughts) and surplus (flooding), the impacts from which are expected to increase over the next few decades due to increased climatic variability. The Act applies to England and Wales and will impact to varying degrees on most business sectors. Whilst the Act has been passed by Parliament, the various provisions will be brought into force at later dates by Orders by the Secretary of State.
Brief commentary of some aspects of the Act is set out below.
Management of floods and coastal erosion
The Act implements some of the recommendations of the Pitt review (2008), which was commissioned following floods in the summer of 2007. The Act sets out a broad management strategy from the local to national level, for the management of floods and the risks of coastal erosion. It requires the Environment Agency ("EA") and the Welsh Ministers to develop national strategies for flood and risks of coastal erosion, and requires local authorities to develop local flood risk management strategies. Each local authority must then implement, produce guidance and act in accordance with, these strategies. The EA must also establish Regional Flood and Coastal Committees (replacing the flood management role of Regional Flood Defence Committees) for various regions (which will be designated by the EA). The EA must also report on flood and coastal erosion risk management to the government at prescribed periods (to be identified). There is a power for the EA and lead local authorities to request information in connection with flood and coastal erosion risk management. Where a request is not complied with an enforcement notice may be served. If the information is not received within a period specified in the enforcement notice a civil penalty of up to £1,000 may be imposed (subject to representations and appeal).
Protection of assets
As part of the management of floods, the Act gives the EA, local authorities and internal drainage boards the power to formally designate features or assets that could affect flood or coastal erosion risk. A wide interpretation can be attached to this as it potentially covers any structure, or natural or man-made feature of the environment. In practice it will be likely to include walls, culverts, raised ground and embankments. Designation will mean that it will be unlawful for any person to alter, remove or replace the structure or feature without prior permission from the designating authority. This could have significant impacts on developments of real estate and infrastructure. A designation will be registered as a local land charge by the designating authority. A register of these features or structures must be maintained and open to public inspection.
Construction and drainage
The Act amends Schedule 1 of the Building Act 1984 to enable building regulations to be made with respect to flood resilience and resistance. Drainage systems for all new developments will need to meet new national standards and there will be, at some time in the future, new standards for new sewers. The current automatic right for new development to connect to sewers is to be removed. Unitary and county councils will be required to adopt sustainable drainage systems for new developments.
Protection of water supplies and reservoir safety
The Act alters the way that water undertakers will manage water supplies. It enables them to temporarily ban or restrict specific uses of water if the water undertaker thinks that it is experiencing, or may experience, a serious shortage of water for distribution. Uses that may be banned include hosepipes and filling or maintaining a domestic swimming pool, paddling pool or ornamental fountain. The water undertaker will be able to limit the scope of the ban by geographic area or time (e.g. set times of the day) as it sees fit. It will be a criminal offence to contravene such a ban. The Government may add or remove uses to the list that water undertakers may ban. The Act also introduces an improved risk based approach to reservoir safety, introducing regulation for reservoirs currently not captured by existing law.
Charges
Water undertakers will also able to operate concessionary schemes relating to surface water drainage charges in order to safeguard community groups such as churches, scouts and others from unaffordable rises in their bills. They will also be able to use social tariffs for those who would otherwise struggle to meet bills.
New arrangements
Finally, the Act introduces new arrangements for the development of high-risk infrastructure projects enabling the Secretary of State or Welsh Ministers to introduce regulations to regulate the provision of infrastructure by a third party for the eventual use by water or sewerage undertakers. The regulations may confer regulatory functions on the authority to enable it to regulate the provision of complex infrastructure (for example novel or large scale projects) which may expose customers to risks connected with the delivery of projects. There are also revised arrangements for the administration of water companies placed in administration on the grounds that it is, or is likely to be unable to pay its debts.
For the full text of the Act click here
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The original publication date for this article was 29/04/2010.
