River Till seasonal chalk stream known as a winterbourne, Winterbourne Stoke, Wiltshire. Photograph: Geography Photos/Getty Images River Till seasonal chalk stream known as a winterbourne, Winterbourne Stoke, Wiltshire. Photograph: Geography Photos/Getty Images

How the Environment Bill could allow ministers to move the goalposts on water quality

While environmental campaigners and industry groups have broadly welcomed the publication of the government’s long-awaited Environment Bill, fears are mounting that certain sections appear to give the government a good deal of flexibility over key green protections.

One of the offending sections relates to water quality. Richard Benwell, a former special adviser to Michael Gove and now chief executive of the Wildlife and Countryside Link, warned in a scathing blog post that the bill included a government “power grab” in being able to change which water pollutants should be assessed - and in what concentrations - to determine water quality.

Green groups are particularly concerned given the UK is far behind its water quality targets, as set out under the Water Framework Directive. 

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The Water Environment (Water Framework Directive) (England and Wales) Regulations 2017 (SI 2017/407)

In force/
Current
Legislation
England, Wales
Published
14 Sep 2018

Commentary

02/05/2017 Correction slip published., 24/08/2018 Amending Regulations ( SI 2018/942) published.

Compliance Dates

10/04/2017 Comes into force

Characteristics

Subject

Land and development Water

Source

OPSI (Office of Public Sector Information)

Affected Sectors

Cross-sector Fishing and aquaculture Water Public Sector Hospitality Leisure and Tourism Conservation Land Management and Landscaping
ECM

The Water Environment (Water Framework Directive) (England and Wales) Regulations 2017 (SI 2017/407)

Document Status: In force/Current

Scope: England, Wales

Commentary:

02/05/2017 Correction slip published., 24/08/2018 Amending Regulations ( SI 2018/942) published.

Compliance:

10/04/2017 Comes into force

DEFRA has said the section is necessary in order to adapt to changes in the science.

“The bill will not change the way water quality is assessed and monitored or lead to the quality of our waters being reduced,” a spokesperson said. “In fact, it will ensure the way we regulate water pollutants is always in line with the latest scientific evidence and our high standards will continue to be upheld.”

But the risk is that a future government could use those powers to quietly lower standards. 

“Only 14% of our rivers meet both the ecological and or biodiversity standards” set out in the directive, noted Stuart Singleton-White, head of campaigns at the Angling Trust. It is therefore “very, very concerning” that the bill allows the secretary of state to move the goalposts on water quality without “proper and due consideration by parliament”, he said. 

When seen alongside the government’s decision to take a commitment to non-regression out of the EU withdrawal agreement and doubts over the independence of the future green watchdog, the Office for Environmental Protection, “we are really concerned that this is a weakening of what are already weak water protection measures”, he warned. 

‘Necessary evil’

“All this comes back to the fact we’re going to have to replace the whole process that goes on in the EU in terms of setting standards for the Water Framework Directive,” said Alastair Chisholm, director of policy at the Chartered Institution of Water and Environmental Management (CIWEM).

“The very existence of those powers to my mind is kind of a necessary evil,” he explained. But the section at the moment puts “quite a lot of discretion” on the part of the secretary of state “to basically exercise their own judgment as to who is the relevant party to consult”, along with a statutory obligation to consult the Environment Agency. 

Speaking to ENDS, Benwell suggested that the bill is right to give the government powers to update priority substances and thresholds. But the wording should be tightened to stop standards being watered down. 

He said including a duty to consult the OEP or “relevant independent scientific experts” would help secure current standards.

“A series of safeguards should be built in,” he said, “expert oversight, more rigorous Parliamentary oversight and clear limits on the purposes for which the power could be used.”

Non-regression

Prime minister Boris Johnson has seemingly committed to enshrining non-regression on green protections in his Withdrawal Agreement Bill - a key demand of a number of Labour MPs inclined to support its passage through the House of Commons.

But some fear that a non-regression clause alone would not necessarily bind a future government to upholding water quality standards. 

Benwell said it “would be a good thing” to include in the Withdrawal Agreement Bill, so long as it was stronger than the current non-regression clause on labour rights. 

Nevertheless, he added, “There will need to be a combination of legal restriction and political oversight. I can’t imagine there being many courts that would be willing to replace the decision of a democratically elected decision making body on an environmental protection choice with their own, unless it was a really clear-cut case of regression, so it will be up to public and parliament to spot any problems. Non-regression must go hand in hand with a clear legal trajectory for environmental improvement.

Singleton-White remains to be convinced by Johnson’s pledge. “All I would say as well is we don’t have a prime minister who always delivers on the things he says,” he said. “We need to judge any government by their actions and not their words.”

Broader framework

When it comes to improving the quality of lakes and rivers, legislation is only part of the story. 

“There’s two sides to this coin, one is the legal side which is obviously really important, the other is capacity,” said Chisholm. CIWEM has identified “a whole range of barriers” to delivering on water quality improvements, particularly when it comes to diffuse pollution from agricultural and urban areas. Often it is less a question of standard setting - where the UK is already falling behind - than it is about funding and putting in place policies to meet those standards, he explained. 

The government’s Agriculture Bill - still waiting to be reintroduced to parliament after the Queen’s Speech - will play a key role in driving up water quality. “But it needs to be supported by more ambitious outreach and advice services - and capacity for farmers to upskill and to get access to the knowledge and skills to deliver,” Chisholm argued.

Benwell agreed, saying that serious progress will require “strong, well-funded, independent agencies, long term certainty of investment in land management and a rigorous set of wider standards that apply to domestic arrangements and trade deals alike”. 

But while Johnson may be “well intentioned” when it comes to environmental protections, there is still the risk that “the momentum of events like trade deals and budget constraints could lead to the opposite outcome, unless environmental protection is hardwired into every decision”, he warned.

Related ENDS Compliance Content

  • EU Directive 2000/60/EC: Establishing a framework for Community action in the field of water policy [Water Framework Directive]
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    EU Directive 2000/60/EC: Establishing a framework for Community action in the field of water policy [Water Framework Directive]

    In force/
    Current
    Legislation
    EU
    Published
    10 Nov 2014

    Commentary

    31/10/2014 Amending EU Directive (2014/101/EU) published.

    Compliance Dates

    22/12/2015 All ground and surface waters to reach good status by 22/12/2015, 22/12/2020 The cessation or phasing out of discharges, emissions or losses of priority hazardous substances, 22/12/2003 Transposition deadline is 22/12/2003, 22/12/2009 Water Basin Management Plans must be prepared for each river basin district

    Characteristics

    Subject

    Water

    Source

    EU OJ (Official Journal of the European Union)

    Affected Sectors

    Cross-sector Water

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