Environment Bill (published) – Part 5 (England & UK part)

The Bill is here. 130 Clauses in 8 Parts, and 20 Schedules.

The Explanatory Memorandum is here.

The Environment Bill (“the Bill”) is comprised of two thematic halves.

(1) A legal framework for environmental governance once the UK leaves the EU.

This was earlier published in part as the draft Environment (Principles and Governance) Bill on 19 December 2018, fulfilling a legal obligation set out in section 16 of the European Union (Withdrawal) Act 2018. The measures published at that time related only to environmental principles and governance, and placing the government’s 25 Year Environment Plan on a statutory footing.

I posted three Blog posts so far about the first thematic half – one on UK REACH, one on Parts 1&2, and one on the OEP.

(2) Provision for specific improvement of the environment, including measures on waste and resource efficiency, air quality and environmental recall, water, nature and biodiversity, and conservation covenants.

SPECIFIC IMPROVEMENT of the ENVIRONMENT

Part 5 – Water – includes –

– improving water resources planning, which facilitates collaborative regional planning and considers the needs of all sectors of water users, including the environment;

[in the context of water scarcity in certain locations, although not specifically mentioned, we may need to see the construction of further reservoirs]

– placing on a statutory footing drainage and wastewater planning to assess risks to sewerage networks and network capacity;

– modernising water regulation by reforming elements of the abstraction licensing regime to link it more tightly to the government’s objectives for the water environment;

– enabling updates to be made to the valuation calculations relevant to the apportionment of internal drainage board (IDB) charges in secondary legislation, allowing for the creation of new or expansion of existing IDBs where there is a local desire to do so;

enabling updates to the lists of priority substances that pose a threat to water bodies in line with the latest scientific knowledge, when there are no longer powers under section 2(2) of the European Communities Act 1972.

Clause 79 sets out these powers. Note the consent requirements re the devolved administrations –

– Clause 79 Subsection (4) establishes that the Secretary of State can only exercise the powers in this section to make provision that could be made by the Welsh Ministers or Northern Ireland Department of Agriculture, Environment and Rural Affairs under their own powers in clauses 80 and 81 respectively with their consent.

– Clause 79 Subsection (5) establishes that the Secretary of State cannot exercise the powers in this section to make provisions which would fall within the Scottish Parliament’s devolved competency, given effect by powers under an Act of that Parliament, with the exception of parts of the cross border river basin districts lying in Scotland, where the Secretary of State could exercise the powers to make provisions but only with Scottish Ministers’ consent.

– Clause 79 Subsection (6) establishes the consultation requirements attached to the exercise of the powers. Subsection (6)(b) requires the Secretary of State to consult with Welsh Ministers when making regulations applying to an England and Wales cross-border River Basin District (RBD) that lies in England, and when the Welsh Ministers’ consent is not required under subsection (4). This would mean consultation is only required if the provision being made is only for the English part and does not apply to the part in Wales. Subsection (5)(c) places the same consultation requirements on the Secretary of State in relation to the cross-border RBDs shared with Scotland.

Note –

– Clause 80 confers a regulation, broadly comparable to that in clause 79, on the Welsh Ministers in relation to Wales. Subsection (4) requires consultation with the Natural Resources Body for Wales, other interested persons or bodies, and with the Secretary of State when exercising the power in relation to the Welsh part of a cross-border RBD.

– Clause 81 confers the same power on the Department of Agriculture, Environment and Rural Affairs in relation to Northern Ireland.

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As a Bill, this document would need to pass both Houses of Parliament to enter the statute books. You note, I pegged this as England.

However, some Clauses are intended to have effect outside England – see page 194 of the Explanatory Memorandum which has a table. And see earlier re environmental quality standards and substance lists.

If the Bill enters the statute books, the provisions then need to be commenced, some may be commenced immediately, such as those that are needed directly for EU Exit, but there could be a substantive delay in the commencement of other Part, such as Part 5.

I will issue further Blog posts, please look out for them.

Environment Bill (UK)

I posted months ago about HMG proposal for a new Environment Bill. There has not been an Environment Bill since 1995.

Progress to date has been weak, and the aspects that were published so far related only to the Governance and Principles aspects.

Today, 23rd July, the DEFRA Secretary has published an updated Policy Statement (of intentions) – here.

Note : Environment is a policy area that is devolved to the regional nations, so the legislative proposals below would apply in England only. Scotland, Wales and Northern Ireland would decide themselves whether and what to follow.

Note : this Statement identifies the Environment Bill will be introduced in the second Parliamentary Session (we are still in the First).

Air quality

(1) Legislation on key measures in the Clean Air Strategy – sharing responsibility for tackling air pollution (across local government structures and with relevant public bodies), plus enabling local government to tackle emissions from domestic burning.

(2) Powers for government to mandate recalls of vehicles and machinery, when they do not meet relevant legal emission standards.

Nature

(3) Nature policy to have a local community focus – a mandatory approach to biodiversity net gain requiring developers to ensure habitats for wildlife are enhanced, with a 10% increase in habitat value for wildlife compared with the pre-development baseline (national infrastructure projects excepted – we will continue to work to establish potential approaches to achieving biodiversity net gains for nationally significant infrastructure projects and marine development, which remain out of scope of biodiversity net gain in the Bill).

(4) Re net gain, planning and the future Environmental Land Management system (replacing agricultural land subsidies) – a new statutory requirement for Local Nature Recovery Strategies. The aim is for these strategies to help to map out important habitats and opportunities for the local environment to be improved, linking communities’ knowledge and priorities with national environmental objectives.

(5) A new duty on local authorities to consult with local communities to ensure that consultation takes place when a street tree is to be felled.

(6) Legislation on conservation covenants – voluntary agreements between a landowner and others (for example, a conservation charity) to help deliver positive local conservation.

Waste

(7) A series of measures that will fundamentally change the way government, businesses and individuals produce and consume products (this will be a big change).

(8) New legal powers to allow government to set resource-efficiency standards for products, driving a shift in the market towards products that are lasting, can be repaired and can be recycled. Plus clear labelling to enable citizens to make fully informed purchasing decisions.

(9) New powers to introduce Extended Producer Responsibility schemes – for packaging, producers will pay the full net cost of dealing with their packaging waste to incentivise recyclability in its design (this is in line with other countries). At the moment, producers currently only pay about 10% of these costs. This will be a fundamental change to the Packaging and Packaging Waste Producer Responsibility Law.

(10) Legislation to modernise the government’s powers to set producer responsibility obligations, extending them to prevention and redistribution of waste, in particular tackling food waste where there is no Legislation in England.

(11) A simplified approach to recycling across local authorities, making it simpler for the public to recycle. A consistent set of materials will need to be collected from all households and businesses in England, with clearer labelling on packaging.

(12) New powers to enable deposit return schemes, particularly dealing with plastic waste. Plus a new power to be able to introduce charges for specified single use plastic items. (Note, there is new EU Law in this area, I posted about recently).

(13) The Litter Strategy commits to review the mechanism by which councils and other land-managers can be held to account for maintaining their land to the standards set out in the Code of Practice. This includes the current section 91 Environment Protection Act process and other options, taking into account the impacts on local authority prioritisation and costs, the court system and the exchequer.

(14) A series of measures unspecified) to improve the management of waste, enabling better use of resources and to reduce the risk of economic, environmental and social harm.

Water

(15) Legislation to strengthen Ofwat’s powers to update water companies’ licences – in particular bringing the way in which water companies appeal Ofwat decisions in line with that for other utility regulators.

(16) New powers to direct water companies to work together on how they will meet current and future demand for water; making planning more robust, even in drought conditions and/or in areas of water stress, for example by working jointly to transfer between catchments when needed.

(17) A new power to enable future updates to a list of harmful chemicals which must be tackled to protect the aquatic environment.

River Basin Management (Ireland)

The Department of Housing, Planning and Local Government has published the (second) River Basin Management Plan 2018-2021 for Ireland. An earlier RBMP had been published. This second RBMP plans on the basis that Ireland is defined as a single River Basin District – the Ireland RBD (NOT including Northern Ireland). The areas bordering Northern Ireland are included in two other River Basin Districts – the North Western RBD and the Neagh Bann RBD that are run from Northern Ireland (part of the UK, a separate country and currently exiting the EU).

The River Basin Management Plan for Ireland 2018-2021 is here.

[The Neagh Bann River Basin Management Plan 2015-2021 is here.]

[The North Western River Basin Management Plan 2015-2021 is here.]

RBMPs set out the actions that an EU member state will take to improve water quality and achieve ‘good’ ecological status in water bodies (rivers, lakes, estuaries and coastal waters) by 2027. EU member states are required to produce river basin management plans under the EU Water Framework Directive (WFD).

BREXIT : it is not yet clear how River Basin Management planning will occur in the UK going forward. I will issue a separate Blog on this, when there is further information.

Water quality in Ireland has deteriorated over the past two decades. This second RBMP provides a more coordinated framework for improving the quality of waters — to protect public health, the environment, water amenities and to sustain water-intensive industries, including agri-food and tourism, particularly in rural Ireland.

The Irish River Basin District (RBD) covers an area of 70,273km2, with 46 catchment management units — consisting of 583 sub-catchments, with 4,829 water bodies. With regard to protected areas within the District, there are 140 designated bathing waters, 64 shell fish waters, 47 nutrient sensitive areas and 358 special areas of conservation (SACs) with water dependency. These SACs are geographically concentrated along the western seaboard – with a significant overlap between high-status waters and SACs. The RBD has a population of around 4.76 million, with 33% of people living in cities, 29% in towns and 38% in rural areas. The requirement for water and waste-water services reflects these spatial patterns. Nationally, the economy is strongly export-focused, but the sectoral drivers of economic growth across the RBD are diverse – with the agriculture and food sectors being particularly important in rural areas.

Key measures during the first RBMP included the licensing of urban waste-water discharges (with an associated investment in urban waste-water treatment) and the implementation of the Nitrates Action Programme (Good Agricultural Practice Regulations). The urban waste-water licensing made significant progress in terms both of compliance levels and of the impact of urban waste-water on water quality. The Nitrates Action Programme created an environmental baseline which all Irish farmers must achieve and has resulted in improving trends in the level of nitrates and phosphates in rivers and groundwater.

This second RBMP will establish :

(1) an Agricultural Sustainability Support and Advisory Programme to be implemented by 30 new Advisors — funded by Department of Housing, Planning and Local Government (DHPLG), Department of Agriculture, Food and the Marine (DAFM) and the dairy co- ops — who will work under Teagasc and the dairy co-ops. The Advisors will work on a one-to-one basis with farmers to bring about behavioural change through improved agricultural practices in areas which have identified pressures on water bodies.

(2) Local Authority Support and Advisory Teams to carry out scientific assessments and to drive the implementation of mitigation measures at local level. Recruitment of investigative assessment personnel commenced in Quarter 1 2018 and provision has been made for up to 43 specialist staff to be in place by mid-2018. These resources will be assigned across the five regions.

(3) Agri-environment schemes implemented through the Rural Development Programme (RDP) to lead to investment in manure storage and improved nutrient utilisation. In particular, the targeted approach to the Green, Low-Carbon, Agri- Environment Scheme (GLAS), which has 50,000 participants, is intended to ensure appropriate supporting measures on farms to protect and improve water quality.

(4) improved compliance with the existing Good Agriculture Practice Regulations through implementation of the enhanced Nitrates Action Programme (NAP) for 2018–2021 and of the associated inspection regime. The Programme entails new strengthened water- protection measures, focused on intercepting and breaking nutrient transport pathways and on preventing sediment and nutrient losses to waters.

(5) a National Inspection Plan 2018–21 for domestic waste-water treatment systems, currently being finalised by the EPA – this will use the outputs of the catchment characterisation work to further improve the risk-based approach to inspection of septic tanks. It is expected that approximately 1,000 inspections will be carried out by local authorities nationally each year.

(6) significant planned investment in urban waste-water collection and treatment infrastructure. Over the period 2017–2021, the plan is for Irish Water to invest approximately €1.7 billion in waste-water projects, programmes and asset maintenance.

(7) a register of water abstractions (held by the DPHLG), who will consult on a proportionate and risk-based framework for the regulation of abstractions to ensure continued sustainable use of our water resources. The EPA will continue work on assessing risk due to abstractions, making use of new information as it emerges during the second cycle.