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The RSPB response to Consultation on options for implementingthe Environmental Liability Directive

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The RSPB response to Consultation on options for implementingthe Environmental Liability Directive1

Name: Sandy LukOrganisation: The Royal Society for the Protection of BirdsAddress: The Lodge, Sandy, Bedfordshire SG19 2DLE mail address: sandy.luk@rspb.org.ukTelephonenumber:

01767 680551/07879 655779

Summary

The Royal Society for the Protection of Birds (RSPB) is the charity that takesaction for wild birds and the environment. We are the largest wildlifeconservation organisation in Europe with over one million members. We ownor manage almost 130,000 hectares of land for nature conservation on 200reserves throughout the UK. Our nature reserves are home to 80% of the mostthreatened bird species in the UK. The RSPB’s policy and advocacy workcovers a wide range of issues including planning and regional policy, climatechange, energy, marine issues, water, trade and agriculture.

As a part of this work, the RSPB strongly supports the better regulation of allaspects of environmental protection. It also supports the Government’sefforts to create a more efficient regulatory environment for businesses in theUK and has actively engaged in these discussions by contributing to thepreparation of the Davidson Review2.

However, Defra’s, Doeni’s and the Welsh Assembly’s approach taken in itsconsultation on options for implementing the Environmental LiabilityDirective (the “ELD Consultation”):

fails to adequately protect wildlife which is, according to theGovernment’s own policies, at risk and worthy of protection;fails to effectively apply the “polluter pays principle”;fails to meet the aims of the Government’s sustainable developmentpolicy;

1 Directive 2004/35/EC of the European Parliament and Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (the “ELD”) 2 The Davidson Review was set up to find evidence of “UK laws that were not implemented in the least burdensome way possible, therefore placing the UK at a competitive disadvantage”.

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risks weakening, or at least being in conflict with, existing UK laws, thusleading to unnecessary ‘double banking3’;does not reflect the principles of ‘better regulation’;risks under implementing the ELD, mainly by attempting to overrestrict the way certain ELD articles should be interpreted4;risks breaching the provisions of other EU Directives, such as theHabitats Directive5 and the Wild Birds Directive6;risks breaching other international Conventions7.

The reasons for these failings are based in the Government’s apparentapproach to “better regulation”. The ELD Consultation prioritises avoidingnew costs for business, even if overall benefits far outweigh these additionalcosts8, and in doing so goes against the government’s own policy on betterregulation.

The ELD Consultation stipulates a “minimum transposition” approach, unless“there are exceptional circumstances, justified by a cost benefit analysis andfollowing extensive stakeholder engagement9”. Firstly, the consultationdocument fails to analyse or explain this choice of policy. Secondly, giventhat some of the Government’s preferred options amount to an underimplementation of the ELD10; seeing that the partial Regulatory ImpactAssessment (“RIA”) shows the discussed variations having strong overallbenefits, and the assumption is still against introducing these variations, theRSPB is worried that rules on better regulation are not being applied correctlyin this case, because either:

3 In Neil Davidson QC’s Call for Evidence for the Davidson Review (see FN2) in March 2006: double banking is described as one of the ways that Directives can be over-implemented and it is defined as: “Double Banking. This can occur when European legislation covers the same ground as existing domestic legislation and where the two regimes have not been made fully consistent or merged into one. For example, there may be domestic rules which serve less of a purpose under the new EU-derived framework but which generate confusion or extra costs for stakeholders.” 4 For example in relation to Articles 2(1)(a), 2(2) and 8(4). 5 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora. (the “Habitats Directive”) 6 For example Article 2 of the Wild Birds Directive and Articles 6(2) and 12(1)(d) of the Habitats Directive.7 For example Article 9(3) of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, done at Aarhus, Denmark,on 25 June 1998 ( the “Aarhus Convention”). 8 See in particular para. 2.5, Section 2, p.22 of the ELD Consultation and para F.23, p.58 of the Partial Regulatory Impact Assessment (“RIA”) as compared to the cost benefit analyses and assessments contained in RIA (e.g. para S13, p. 5/6; para C3. p. 13, E62, E64 and E65. p. 34/35; Tables F1 to F12; and para F20, p.58). Further elaborated below. 9 Ibid. 10 As mentioned above.

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An error has occurred in the interpretation of the ELD and of therelevant figures, and business costs (called “policy” costs in the ELDConsultation and RIA) have accidentally been double counted11; or

A qualitative judgment has been made that avoiding increases in coststo business is more important than achieving net benefits to society andthe environment.

If the former is the case, this needs to be taken into account in the evaluationof the responses to the ELD Consultation. If the latter is true, then the RSPBfundamentally disagrees with it. This approach does not accord with theGovernment’s own position on better regulation. The view thatenvironmental regulation brings excessive costs has been shown to beoutdated and inaccurate12. Indeed, the Davidson Review stated that applyingthe principles of Better Regulation can mean that policy implementationbeneficially goes beyond the implementation minimum, where appropriate.

Better regulation should be positive for the environment because true ‘BetterRegulation’ achieves environmental outcomes at less administrative cost, andwith flexibility to allow companies to innovate. If this involves moreregulation, but with an overall gain in social benefits and efficiency, as itwould if many of the variations discussed in the ELD Consultation13 wereintroduced, then this obviously amounts to better regulation.

The following response consists of a discussion of the regulatory andeconomic background to better regulation as applied to the ELDConsultation and RIA, as well as answers to questions asked in Section 3 ofthe ELD Consultation which are relevant to the RSPB’s interests.

11See further discussions below paras 14/15. 12 See para 6 below. 13 See Section 3, ELD Consultation

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Key points The RSPB:

1. Agrees with the Government’s goals for better regulation, but does not think theyhave been applied correctly or efficiently in the ELD Consultation and believes that an overriding principle in the RIA should be the economic logic of the polluter pays principle – thatimplementing it improves the efficiency of outcomes for society.

2. Strongly supports the inclusion of SSSIs14/ASSIs15, as well as Ramsar sites, inthe implementing legislation (with an option to also cover UK BAP16 habitats andspecies at a later stage) in order to secure an environmentally and economically efficientlevel of wildlife protection in harmony with existing wildlife legislation.

3. Strongly supports the extension of strict liability to apply to all activitiescausing biodiversity damage as key to the practical workability of the ELD and to ensurecompliance with existing provisions of the Habitats and Wild Birds Directives.

4. Urges the Government to adopt workable interpretations of the definitions ofbiodiversity and water damage to be issued in statutory guidance and which arenot in breach of EU laws – for example, the definition of damage to protected species andnatural habitats and impacts on “favourable conservation status” should be assessed at theappropriate level, be it site based, local, regional or EU level – and the definition of waterdamage should include, but should not be limited to, actions that cause or threaten to causedeterioration across a class boundary.

5. Strongly opposes the introduction of the permit and state of the art defences – askey to the practical and economic effectiveness of the ELD, to avoid weakening the effect ofexisting laws and to secure the restoration of environmental damage at the polluter’s cost, notat the cost of the state.

6. Opposes the removal of NGO rights of access to justice in cases of imminentthreat of damage – in order to help ensure the effective enforcement of the ELD.

14 Sites of Special Scientific Interest in England & Wales: represent the best sites for wildlife and geology in England and Wales. They support many characteristic, rare and endangered species, habitats and natural features, see http://www.environment-agency.gov.uk/yourenv/432430/432434/432448/437323/?lang=_e 15 Areas of Special Scientific Interest in Northern Ireland: areas of land that have been identified by scientific survey as being of the highest degree of conservation value, the equivalent of SSSIs in England & Wales. 16 UK Biodiversity Action Plan: the UK Government's response to the Convention on Biological Diversity (CBD) signed in 1992, which describes the UK's biological resources and commits a detailed plan for the protection of these resources.

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General, regulatory and economic issues

The regulatory background in general

1. Government intervention is generally justified to address inefficiencies inthe operation of markets17, such as the supply of public goods.Biodiversity conservation is a public good; much of the welfare peoplegain from it is non excludable and non rival18. It provides significantbenefits that are not reflected in markets. In common with other publicgoods, the market system undersupplies society with biodiversityprotection19. If the Government intervenes to correct these marketfailures efficiently, it will achieve better environmental outcomes as wellas greater overall economic efficiency. Therefore, it is appropriate forGovernment to take action to conserve biodiversity.

2. Regulation will always be a necessary intervention tool, to secure thequalitative and public benefit aspects of environmental goods (eg.pesticide spraying, agricultural field margins) that cannot be influencedthrough interventions in markets. This is particularly true in relation tothe provisions on biodiversity protection in the ELD.

3. The ELD is a partly market based legal instrument designed to correctmarket failure, particularly in relation to biodiversity damage and aimstowards achieving an economically and environmentally efficientoutcome. Taking measures that go beyond the minimum implementationof the ELD will strengthen and support this aim and achieve a betterregulatory and economic outcome.

4. Better regulation should be positive for the environment, because true‘Better Regulation’ achieves environmental outcomes at lessadministrative cost, and with flexibility to allow companies to innovate.Better regulation may involve higher environmental standards20, orstricter enforcement of regulations. The overall aim of better regulation isto increase social benefits and efficiency. Indeed, in his foreword to theUK Government’s Sustainable Development Strategy “Securing the

17 HM Treasury (2003) The Green Book: Appraisal and Evaluation in Central Government. London, TSO.18 It is not possible to exclude people from gaining welfare from biodiversity, and one person’s enjoyment of biodiversity and most of the ecosystem services that it supports does not reduce the amount available for someone else to enjoy. See HMT’s Green Book: http://greenbook.treasury.gov.uk/annex01.htm19 Hanley N & Shogren J (2005) Putting a Value on Nature: Economics and Nature Conservation, in Crofts C & Boyd I (eds) Conserving Nature: Scotland and the Wider World. John Donald, Edinburgh. 20 The Davison review identifies that implementation of Directives can beneficially go beyond the legal minimum.

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Future”, the Prime Minister himself states that policies to promote betterquality environments also have the capacity to have long term social andeconomic benefits21. The adoption of many of the variations discussed inthe ELD Consultation22 is in line with the principles of better regulation.

5. Just because existing regulations need to be improved, does not meanthat new ones cannot be introduced efficiently (where needed, in linewith principles of better regulation). In the case of the ELD, introducingmany of the additional measures discussed in the ELD Consultation, forexample the inclusion of SSSIs/ASSIs or the extension of strict liability tobiodiversity damage caused by non Annex III activities etc., would leadto economically efficient outcomes (i.e. benefits to society exceed costs).This is supported by the cost benefit analyses set out in the RIA23.

Environmental regulation’s economic impact

6. The view that environmental regulation brings excessive costs isoutdated and inaccurate. Both a review of ex post compliance costs forEU environment legislation, and the UK’s Environmental AuditCommittee have concluded that ex ante estimates of environmentalregulation compliance costs are inaccurate and regularly overstated (bothintentionally and unintentionally)24. If this is generally true, then it islikely that the compliance costs estimates contained in the RIA are alsooverstated, which means that the overall net benefits identified in the bestestimates contained in the RIA cost benefit analyses are probablyunderestimated (see also discussion below)25.

7. Good environmental regulation presents new business and employmentopportunities in all sectors of the economy. This view is shared bybusinesses and environmentalists: The Aldersgate Group (a coalition ofpublic, private and non governmental bodies and individuals) maintainsthat high standards of environmental care are vital to the long termhealth of the UK economy and its future competitiveness26. The heads ofEuropean environment agencies together with the EuropeanEnvironment Agency published the Prague Statement in November 2005,

21 The UK Government Sustainable Development Strategy “Securing the Future”, March 2005, Cm 6467 at p.3, Foreword,22 Section 3, ELD Consultation 23 Tables F1 – F12, RIA 24 IVM (2006) Ex-post estimates of costs to business of EU environmental legislation. Report to DG Environment. EAC (2005) Pre-Budget Report 2004, and Budget 2005; Tax, Appraisal and the Environment. 7th report of EAC session 2004-05. HC 261. 25 See para. 14 below which discuss overstatement of “policy costs” in the RIA. 26 See “Green Foundations: Better Regulation and a Healthy Environment For Growth and Jobs”, Aldersgate Group Report, May 2006.

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giving a powerful vindication of the positive contribution ofenvironmental regulation to growth and jobs. Unfortunately this is eithernot at all or not sufficiently reflected in the RIA calculations, as suchbenefits are either not quantified at all or are treated as displacingexpenditures elsewhere in the economy without this being reflected inthe RIA’s cost benefit analyses27.

8. Environmental legislation accounts for only a small proportion of theoverall costs of regulations to UK business – the majority is employmentand other socio economic regulation.

9. The Davidson Review did not identify extensive evidence of gold platingof environmental legislation – significant issues for improvement wereonly identified for Marine and Waste legislation and work is beingcarried out to rationalise these areas. This means that whereenvironmental regulation goes beyond the minimum required, this isdone because it is environmentally, socially and economically necessaryand/or beneficial.

10. The Davidson Review stated that applying the principles of BetterRegulation can mean that policy implementation beneficially goesbeyond the implementation minimum, where appropriate. A workableand practical ELD transposition that goes beyond minimumimplementation would be an example. Otherwise the transposinglegislation will be in danger of having a weakening effect on existingenvironmental legislation28 and of breaching EU rules29, which would becounter to the intentions of the Davidson Review.

11. Overall, neither the Lisbon agenda, nor the Better Regulation agenda, ordomestic drives for economic competitiveness rule out furtherenvironmental regulation. Indeed, new environmental regulations thatfollow the principles of ‘better’ regulation can positively contribute tothese agendas by incentivising innovation and greater resourceproductivity, not least in relation to the prevention of environmentaldamage, which is one of the aims of the ELD as expressed in its Recitals30.

27 See para.s E66 and E67, p 35, RIA. 28 e.g. on the Water Resources Act 1991 or Part IIA of the Environmental Protection Act 1990 as regards strict liability 29 e.g. in relation to potential breach of duties under Article 6(2) of the Habitats Directive or Article 2 of the Wild Birds Directive by a failure to extend strict liability to biodiversity damage caused by all activities being. 30 Recital 2, ELD

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Defra’s initial partial regulatory impact assessment of the EnvironmentalLiability Directive (“RIA”)

12. The regulatory impact assessment is an essential document, which mustbe verified by ministers, and which accompanies legislation submitted toParliament. Its accuracy is essential to good governance.

13. Government guidance on economic assessments (such as regulatoryimpact assessments) clearly identifies the importance and difficulties ofincluding environment costs and benefits. Guidance recognises that nonmarket environmental issues may be difficult to value. However, everyeffort should be made to take them into account by applying valuationtechniques and/or including qualitative measures of impact.

14. The RIA identifies benefits as exceeding costs for most of the variationsdiscussed in the ELD Consultation (eg. extending strict liability,removing the permit defence, covering all damage to SSSI features), butstill rejects them on the basis that “policy costs”31 outweighadministrative costs savings32, but:

Policy costs and administrative costs are already taken into account inthe cost benefit analyses for the potential variations discussed inSection 3 of the ELD Consultation. On the Government’s bestestimates, the benefits of these variations outweigh their costs.Looking at policy costs and administrative costs separately from theoverall benefits simply makes no sense in economic or welfare terms.

Competent authority costs of enforcement appear to have been doublecounted in some circumstances, as they are part of what the ELDConsultation refers to as “administrative costs” 33, but they are alsocounted as part of the overall “policy costs” (i.e. business costs) inmany of Tables F1 – F1234 under the heading “enforcement costs”. Inother tables it is not clear whether “administrative” and “enforcement”costs are the same figure or not, as they do not clearly derive from eachother35. This means that in some cases the competent authority’senforcement costs have been used to increase both business costs and

31 a combination of the (voluntary) costs of anticipatory action and the (required) costs of preventive and remedial measures under the ELD (see S13, p. 6; C3, p. 13, E62, p. 34, E64, p.35, RIA) 32 see in particular para. 2.5, Section 2, p.22 of the ELD Consultation and para F.23, p.58 of the RIA as compared to the cost benefit analyses and assessments contained in RIA (e.g. para S13, p. 5/6; para C3. p. 13, E62, E64 and E65. p. 34/35; Tables F1 to F12; and para F20, p.58). 33 see E63, (iv), p. 35, RIA. 34 see p. 46 – 57, RIA, Tables F1-F12, in particular Tables F1, F2, F3, F9. 35 See Tables F5, F7.

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administrative costs, thus potentially reducing the overall benefit of theproposed measures. Again, this makes no economic or regulatorysense and it would appear that this is either a mere administrativeover sight or it could be an artificial way of increasing costs andreducing benefits.

The tables state on several occasions that enforcement costs may be offset by other suggested variations discussed in the ELD Consultation36.This is not reflected in the cost benefit calculations, again potentiallyreducing over all benefits.

15. The responsible minister should not be able to accept this informationand conclude that the proposed implementation of the Directive is in thepublic interest.

The “polluter pays principle”

16. The “polluter pays principle” is one of the fundamental principles of EUenvironmental policy and it is enshrined in Article 174(2) of the EUTreaty. Moreover, it is one of the guiding principles in the UKGovernment’s Sustainable Development Strategy for achieving asustainable economy37, and it is applied in existing UK legislation, forexample, in Part IIA of the Environmental Protection Act 1990 dealingwith contaminated land.

17. The ELD was conceived to apply the “polluter pays principle”. The“polluter pays principle” is the fundamental principle of the ELD38 andthe ELD is the first piece of EU legislation whose “main objectives includethe application of the polluter pays principle”39. Therefore, the ELD can beseen as the instrument that completes the “polluter pays principle’s”effectiveness in EU and national legislation and ensures its fullimplementation.

18. The UK government supports the “polluter pays principle”40, but says itwants to apply the principle in a responsible and proportionate way.

36 See Tables F2, F5, F7, F9. 37 The UK Government Sustainable Development Strategy “Securing the Future”, March 2005, Cm 6467, p.16, para 4. 38 See Recital 2, ELD and Defra’s covering letter sending out the ELD Consultation, dated 1 December 2006 39 See Europa summary of the ELD: http://europa.eu/scadplus/leg/en/lvb/l28120.htm 40 See para 2.2, p. 21, Section 2, ELD Consultation and Defra Press Release 517/06, 1 December 2006, para. 4 and footnote 38 above.

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19. The ELD’s primary aims are to prevent and restore environmentaldamage by applying the “polluter pays principle”. If it is successful inthis endeavour, costly environmental damage will be prevented due tothe Directive’s express provisions and its intended incentive anddeterrent effects. In addition, when damage does happen, restorationwill be secured – at the cost of those who caused it.

20. This is possible if the Directive is implemented in a way that brings it intoline with existing UK legislation, and if discretions that weaken its impactare not exercised.

21. Introducing the permit and state of the art defences will completelyundermine the “polluter pays principle”. Including SSSIs/ASSIs,extending strict liability and giving NGOs access to justice in cases ofdamage and of imminent threat of damage and taking a “better”regulation approach, not one exclusively based on business costs, wouldapply and strengthen the “polluter pays principle”.

22. The ELD transposition now gives the UK an important opportunity toactually enforce the “polluter pays principle” in relation to its protectedwildlife and transfer the costs of environmental damage onto the bodiescausing such damage, not onto future generations or the tax payer.

The principle of Sustainable Development

23. The ELD is also built on the principle of sustainable development41. Asalready seen, the UK Government is also committed to the principle ofsustainable development.

24. The Government’s key sustainable development commitments in itsstrategy to protect natural resources and the environment include:

producing an integrated policy approach for protecting and enhancingnatural resources; andbringing together all the UK Government’s policy frameworks, targetsand strategies for natural resources42.

25. These key commitments will not be honoured if the ELD is transposedaccording to the principles set out in the Government’s preferredapproach under the ELD consultation. Instead of an integrated approach

41 See Recital 2, ELD 42 P. 9 and Chapter 5 of the UK Government Sustainable Development Strategy “Securing the Future”

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to wildlife protection and a bringing together of policy frameworks, forexample by including SSSIs/ASSIs in the ambit of the new legislation orextending strict liability to biodiversity damage, the Governmentsuggests a system that will be in addition and opposed to approachestaken under existing environmental laws, such as the Water ResourcesAct 1991 and the contaminated land rules in Part IIA of theEnvironmental Protection Act 1990.

Implementation options and questions in Section 3 of the ELDConsultation

Before responding to individual questions, it is important to keep two pointsin mind:

26. Article 16 of the ELD makes it possible for implementing legislation to bemore stringent and stricter than the ELD itself. This is crucial insituations where stricter national laws already exist, so that such laws arenot weakened by the implementing legislation and it can also beimportant in situations where the ELD shows certain weaknesses or gapswhich it may make sense to deal with in the implementing legislation toensure effective transposition (see also arguments on regulation above).

27. Recital 5 of the ELD states:

“Concepts instrumental for the correct interpretation of the scheme provided forby this Directive should be defined especially as regards the definition ofenvironmental damage. When the concept in question derives from otherrelevant Community legislation, the same definition should be used sothat common criteria can be used and uniform application promoted”.(Emphasis added).

28. This is of fundamental importance, as many of the concepts used,particularly in relation to water and biodiversity are the same or similarto existing Community legislation, in particular to the Water FrameworkDirective43 (the “WFD”), the Habitats Directive and the Wild BirdsDirective, as well as the EIA and SEADirectives44, which deal withenvironmental impact assessments.

43 Directive 2000/60/EC of the European Parliament and the Council of 23 October 2000 establishing a framework for Community action in the field of water policy 44 Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment (the “EIA”) and Directive 2001/42/EC - the Strategic Environmental Assessment Directive (the “SEA”).

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29. Because the definition of “protected species and natural habitats” in theELD basically refers to biodiversity damage, which is an easier term touse than “protected species and natural habitats”, purely for ease ofreference, this response refers to “biodiversity damage” instead, eventhough “biodiversity damage” is not as such a defined term under theELD. In addition, it should always be borne in mind that when thisresponse or the ELD refer to “protected” biodiversity, it refers to thespecific and restricted definition of “protected” biodiversity under theELD, not to what may otherwise be considered protected biodiversity,even under EU law.

30. QUESTION 3.1: (paragraphs 3.3 3.7 page 23)

Bearing in mind that an assessment must be made of damage which may havea significant adverse effect on reaching or maintaining FCS outside sites,should the Government, in respect of the elements of damage that occur onsites(i) apply a test of significant adverse effect on reaching or maintaining FCSwhich focuses on damage to Natura 2000 sites, but which takes account of thesignificance of the particular site or sites to the conservation status of thehabitat or species over its natural range? or(ii) apply a test of significant adverse effect on reaching or maintaining FCS,such that any damage to a Natura 2000 site which affects the integrity of thatsite would trigger liability under ELD?

If you do not agree with these options what alternative(s) would you suggestand why?

31. Key issues

Key issues – Question 3.1:

1) The RSPB disagrees with both options.

2) The transposing legislation must apply to relevant protectedbiodiversity on and outside designated sites.

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3) There must be no restriction of the definition of biodiversity damageunder the ELD. Otherwise the transposing law will be in breach of EUlegislation. Therefore, guidance, rather than a new definition set out inthe transposing legislation, is the appropriate vehicle for providingassistance in understanding the meaning of the definition of biodiversitydamage in the ELD. This would also meet “minimum implementation”goals.

4) Option (i) could be read as restricting biodiversity damage covered bythe ELD to protected sites only, which is obviously wrong and wouldresult in a breach of the ELD. It also applies the relevant thresholds at thewrong level, which would be a breach of the ELD and the HabitatsDirective.

5) Option (ii) also fails to take account of biodiversity outside designatedsites. In relation to site based biodiversity, the site integrity test isincomplete without also including a reference to conservationobjectives.

Fundamental issues

32. In the first instance it is important to emphasise that whatever approachis taken to the interpretation of biodiversity damage under the ELD, itmust ensure that the actual definition for biodiversity set out in Article2(1)(a) of the ELD is fully applied. Otherwise, the transposing legislationwill risk being in breach of the ELD45 and other EU Directives, e.g. theHabitats Directive. Therefore it may be dangerous to “re define”biodiversity damage in the transposing legislation. On the other hand,this is an area where guidance would be particularly useful because ofthe complexity of the legal definitions and underlying concepts involved.

33. The second point to emphasise is that although the discussions containedin the ELD Consultation at para.s 3.2 to 3.7 in Section 3 recognise thatbiodiversity damage under the ELD can happen on and outside Natura2000 sites, the bare text of the Government’s preferred position itself (seeAnnex II of the consultation package) appears to take an approach tobiodiversity damage which is purely focused on Natura 2000 sites. Evenif this is not the Government’s intention, it is worth emphasizing that if

45 For example, if the ELD transposing legislation does not fully apply to biodiversity outside designated sites, or does not take full account of the effects on favourable conservation status.

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the ELD were transposed so as only to cover Natura 2000 sites, thiswould amount to a breach of the ELD.

34. A proposal for a more practical approach to the interpretation of thedefinition of biodiversity damage under the ELD is attached to thisresponse in Annex 1. This approach could be used in potential guidanceand it has also been sent to the EC Commission, who has passed it on toother Member States46.

Comments on (i): Defra’s preferred approach:

35. As already mentioned above, it is important to make sure that the ELDimplementing legislation covers relevant protected biodiversity both onand outside designated sites. Moreover, it is crucial to apply significantadverse effects at the appropriate level, considering all the conditionslisted in the Habitat Directive’s definition of “favourable conservationstatus” (“FCS”)47.

36. The ELD Consultation in para 3.5, Section 3 makes biodiversity damageon a Natura 2000 site completely dependent on effects on the relevanthabitat or species over its natural range, saying that “damage to any oneNatura 2000 site or a collection of sites would not necessarily have anadverse effect on FCS”. The ELD Consultation further explains later thatit “is assumed that conservation status is assessed at UK level”48.

37. However, this ignores the fact that a fundamental requirement of theHabitats Directive is achievement of FCS and that the main mechanism toachieve this is through the Natura 2000 site network (see Article 3(1),Habitats Directive). Therefore, the favourable conservation status of eachsite within the Natura 2000 network is a prerequisite for the overallachievement of FCS (see further discussions in document in Annex 1).

38. In addition, the Habitats Directive actually defines conservation statusand FCS not merely in terms of natural range, but also in terms of theterritory of the relevant Member State49, as well as long term survival,

46 Annex 1 sets out (i.a.) that a useful approach to interpreting “significant adverse effects on reaching and maintaining favourable conservation status” is to interpret it as an undermining of the maintenance and long-term viability of the relevant protected biodiversity. This approach takes into account that the Habitats Directive itself refers to “significant” effects and “adverse” effects, but not “significant adverse” effects. 47 See Article 1 (e) and (i) 48 See FN 52 on p. 74, RIA. 49 See Article 2 and Article 1(e) and (i), Habitats Directive

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long term distribution and abundance50. This distinction is crucial. It issupported by the ELD itself, which says in Annex I that an assessmentcan be made at local, regional and higher level including Communitylevel. In addition, case law supports the fact that an adverse effect at sitelevel is relevant to ensuring FCS51.

39. Therefore, to determine the appropriate level at which a significantadverse effect on reaching or maintaining FCS occurs, it is necessary totake into account all the relevant underlying facts and circumstances, andmeasure the impact at the appropriate level, be it at local (or whereappropriate, regional, national or even EU) level52, taking into account thenatural range of the biodiversity in question and the relevant effects onits maintenance and long term viability of the biodiversity. This means,that the ELD Consultation’s statement above is too simplistic and, ifapplied unchanged in any transposing legislation or guidance, againrisks being in breach of EU legislation and a potential candidate forinfraction proceedings in the EU.

40. This danger is compounded by the fact that this would also amount to abreach of Article 6(2), Habitats Directive. By applying the threshold fordamage too high and breaching the relevant ELD and Habitats Directiveprovisions, the UK would be failing to ensure the prevention andrestoration of environmental damage under the Directive, thereby failingto comply with its duty to take “appropriate steps to avoid …deterioration” of the relevant biodiversity under Article 6(2), HabitatsDirective (see arguments above).

41. However, in relation to biodiversity damage on designated sites, aslightly different approach is possible. As explained above, impacts onthe FCS of the qualifying interests of a Natura 2000 site need to bemeasured at site level and the relevant site’s conservation objectives arean expression of FCS applied at the level of that particular site. Therefore,it would make sense in relation to designated sites only that referenceshould be made to both site conservation objectives and site integrity.

42. The detailed elaboration of site conservation objectives provides thenecessary framework within which judgements on the effect on siteintegrity can be made. To ensure the ELD can be implemented it will be

50 all in Article 1(e) and (i), Habitats Directive 51 The Royal Society for the Protection of Birds and Another v The Secretary of State for Scotland,First Division, Inner House, Court of Session (P27/14a/98) at para 32, and see further discussions in the document contained in Annex 1 to this response. 52 As is clearly the intention of the ELD – see Annex I.

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necessary to provide the resources to the statutory conservation agenciesto consult on and complete site conservation objectives for all Natura2000 sites: currently the majority of Natura 2000 sites lack such objectives.This will have the added benefit of aiding decision making underArticles 6(3) and 6(4) of the Habitats Directive.

43. An appropriate test to assess biodiversity damage on a designated sitewould be to introduce a presumption of ELD damage if the site’sconservation objectives are undermined. This could be amplified inguidance by reference to effects on site integrity.

44. This applies irrespective of the type of biodiversity protected on the siteit could be habitats or species or both and it would include the habitats(even if not specifically protected as such) of protected species, asstipulated by the ELD. It could also be applied to both national andEuropean designated sites. It would also apply to those Europeanspecies and habitats present on a Natura 2000 site but which are notqualifying interests i.e. those in Category D on the Natura 2000 StandardData Forms. Further arguments explaining this approach are containedin Annex 1 to this response.

45. Obviously, as already stated, this approach could not apply to damagecaused outside designated sites, where site integrity is not a relevant test.The general FCS based test, as stated in Article 2(1)(a) in the ELD (not theapproach set out by Defra in option (i)), must apply to relevantbiodiversity outside designated sites (see above).

46. Again, any approach that is utilized here needs to be in the form ofguidance, not in the form of an amended definition of the ELD definitionfor biodiversity damage.

47. QUESTION 3.2: (paragraph 3.8 3.12; page 25) For the threshold for waterdamage under the ELD, what are your views on a test of water damageusing a number of criteria which give practical effect to the requirementsof the ELD drawing upon the WFD standards?

48. Key Issues

Key Issues – Question 3.2

1) The RSPB does not accept the analysis of water damage presented inthe consultation.

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2) Deterioration across a WFD class boundary is, by definition,significant and will bring with it liabilities and costs that should bepassed on to those responsible through the ELD.

3) However, the RSPB does agree that the wording of the ELD indicatesthat significant damage can occur within class boundaries if this wasnot the case more specific language would have been used.

4) The RSPB also accepts that it is sensible to draw on the standardsestablished for the implementation of the WFD.

5) The RSPB wishes to emphasise that water damage includes not onlypollution damage, but also morphological damage.

49. The RSPB believes that damage that triggers a deterioration in WFD classis by definition significant because even if the absolute changes in aquality element are small, the consequences of crossing a class boundaryare great. For example if a water body fails to meets its WFD objectivesbecause of the action (or inaction) of a third party, the Member State willeither face infraction proceedings or, if exemption under Article 4.6 of theWFD are applied, costs will be incurred in preventing furtherdeterioration and restoring damage.

50. If Defra’s preferred approach is taken, operators whose actions triggersuch costs may not always be held liable for the consequences and as aresult, the general taxpayer will pick up the tab. This is not only unfair, italso undermines the stated purpose of the ELD, which is to establish aframework of strict liability based on the polluter pays principal.

51. Notwithstanding the above, we do agree that the deliberate use of thesignificant adverse effect test, rather than deterioration of status, in the ELDmeans that damage could occur when quality is impaired within a WFDclass boundary rather than just when a class boundary is crossed. Thisseems entirely sensible and reflects the Water Framework Directive’soverall purpose to prevent further deterioration of aquatic ecosystems.Indeed, the wording adopted in the ELD could be seen as reflecting anabsolute rather than boundary based definition of what constitutesdeterioration within the meaning of the WFD.

52. We also accept that it is sensible to draw on the standards established forthe implementation of the WFD although these, in themselves, will not besufficient to define significant adverse effect.

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53. The use of WFD concepts of “Status” when defining damage brings withit obligations towards the protection of surface water bodies fromdamaging physical change through the inclusion of hydromorphological quality elements. In the case of High Status water bodies,the obligation to prevent damage is almost absolute, but for othersmorphology must be maintained, or restored to a state consistent withthe ecological objectives. This could bring liabilities for those carrying outengineering work in or near a water body e.g. flood defence, coastalprotection, marina construction etc. It should also be noted thatmorphological damage is not routinely recorded by the EA, and thereforeunlikely to be picked up in the analysis of qualifying incidents that formsthe basis of the costs and benefits in the RIA. This leads tounderestimation of the number of qualifying incidents, and the benefitsto society of rectifying them.

54. Further analysis on the definition of water damage is contained in thepaper submitted by the RSPB to Defra in January 2006 and which is reproduced at Annex 2 of this response53.

55. QUESTION 3.4: (paragraph 3.19 3.24; page 28)Which of the following liability approaches for biodiversity damage do youfavour and why:(i) one based on the strict/fault based distinction in the ELD? or(ii) one based on strict liability irrespective of whether the damage wascaused by an occupational activity listed in Annex III of the ELD?

56. Key issues

Key issues – Question 3.4

1) The RSPB agrees with option (ii).

2) The principle of strict liability should be applied to all biodiversitydamage, irrespective of what type of activity caused the damage andirrespective of where the damage took place.

Extending the principle of strict liability to biodiversity damage caused bynon Annex III activities would:

make sense from an environmental point of view;

53 The document attached in Annex 2 also sets out more specifically a discussion of the interpretation of “significant adverse effects” in this context and possible ways in which this provision might be interpreted in the time period before the WFD becomes fully operational.

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apply the “polluter pays principle” properly and prevent unforeseenstate liability;ensure legal certainty;ensure compliance with Member State duties under Articles 6(2) and12(1)(d) of the Habitats Directive 1992 and Article 2 of the Wild BirdsDirective 1979;aid better regulation by bringing different obligations under variouslegislative instruments in line with each other, thus avoiding confusingand conflicting laws.

Fundamental issues

57. The RSPB agrees with the arguments brought in favour of the extensionof strict liability to biodiversity damage caused by all activities. Inaddition, the RIA’s economic analysis favours this approach. In para.3.23 on p. 29 of Section 3, the ELD Consultation does say that the costs ofthis option would be greater than if it was not introduced. However, theRIA attached to the ELD Consultation shows the opposite. On theGovernment’s best estimates, the introduction of this option would leadto an overall benefit, not a cost, and this despite the possible doublecounting of enforcement costs, the failure to include potential off sets andthe likely general over estimate of costs for this option, which havealready been identified above. How, then, the conclusion can be reachedthat this option would mean additional costs, is not clear.

58. Quite apart from the underlying economics, from an environmental pointof view, imposing strict liability in relation to any environmentaldamage, including biodiversity damage, makes sense.

The polluter pays principle

59. As already seen, the ELD is intended to apply the “polluter paysprinciple54”. However, if fault based liability applies to non Annex IIIactivities causing biodiversity damage, the application of the “polluterpays principle” is undermined, at least in relation to biodiversity damage(if the operator was not at fault). This, in turn, means that there is a lesserincentive for operators to prevent biodiversity damage and a lesserchance of actual restoration of such damage, both fundamental aims ofthe ELD55. Introducing a general rule of strict liability would strengthenincentives to prevent damage, guarantee restoration and provide a

54 see Recital 2 55 see Article 3(1) and Recitals 1 and 2

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greater degree of legal certainty. It would be easier and simpler tounderstand and apply the ELD regime.

Enforcement and subsidiary state responsibility

60. The ELD has a somewhat unclear approach to enforcement, but it wouldappear that operators who cause/are about to cause environmentaldamage, including biodiversity damage, are under an absolute duty totake preventive/remedial measures, even if:

their liability has not yet been established (including the proof ofnegligence or fault in the cases of biodiversity damage caused by nonAnnex III activities);one of the available defences (including the permit and state of the artdefences) applies.

61. Articles 5 and 6 of the ELD require the operator to take action “whereenvironmental damage has not yet occurred but there is an imminentthreat…” or “where environmental damage has occurred”. There is nomechanism for the competent authority to establish liability first. In fact,waiting for the competent authority to do this, would be in breach of theELD’s provisions.

62. What this means is that, theoretically at least, operators, even if they maynot be liable, because they were not at fault, must prevent/remedy anyrelevant biodiversity damage they cause or are about to cause (and itshould be emphasised that this is an entirely separate point to similararguments which apply to some of the defences under Article 8). Then, ifthey were not actually liable, they would have to claim to be re imbursedfor their costs by the competent authority/the state, although there is nomechanism for this in the ELD. Therefore, even though provisions forsubsidiary state responsibility were taken out of the ELD in its passagethrough the European institutions, this would imply a de facto return to a“catch all” state responsibility56. The only two alternatives to thisapproach are:

one where the competent authority does not re imburse operators forcosts incurred – an impossible situation where operators were notactually liable in law – and this would obviously be extremelycontroversial and possibly contrary to human rights laws;

56 Similar arguments can also be used against the introduction of the “permit” and “state of the art” defences.

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one where neither the operator nor the competent authority apply theELD because they do not want to bear the costs ofremedial/preventive measures – a status quo that could only be upsetby a third party requesting the competent authority to take action orstarting judicial review proceedings, or complaining to the EuropeanCommission.

63. A better, more logical and clearer approach would be to extend strictliability to biodiversity damage caused by non Annex III activities. Inthis way, the fundamental tenet of the ELD, that the polluter should pay,would be given effect to, rather than making the state, and indirectly, thetax payer, pay for the relevant damage, or encouraging a situation wherenothing at all happens.

64. Of course, in order to allow the competent authorities to enforce the ELDimplementing legislation effectively, it will be vital to adequately equipthem for dealing with the relevant new enforcement proceedings byproviding them with the necessary resources. The RIA foresees thesecosts57, but also appears to rely heavily on the ability of the competentauthority to recoup its costs from operators58. Even if this is the case, thecompetent authority will need a capacity to bear costs up front, beforerecouping them, and there will be other costs, for example in relation tolearning about the new legislation and setting up processes to deal withit, which will be separate and un recoverable. However, the cost benefitanalyses in Tables F1 – F12 in relation to the Government’s potentialadditional options for implementation all show that additionaladministrative and enforcement costs will be outweighed by the overallbenefits of these options.

Equity and consistency with related existing UK legislation

65. It is usual in Europe and in the UK, for laws on environmental liability orresponsibility to be dealt with by a system based on strict liability, forexample in the UK Contaminated Land Regime (Part IIA EnvironmentalProtection Act 1990) or the Water Resources Act 199159/Water (NorthernIreland) Order 1999. This means that it is to be expected that damage towater or landwill generally be subject to a strict liability regime, eitherunder the ELD (if the damage is caused by an Annex III activity) or bynational regimes (if it is caused by anyone else). However, as no

57 See Table E6, p. 33 RIA 58 See para. E 61, p. 34, RIA. 59 See Chris Clarke, Update Comparative Legal Study, Study Contract No. 201919/MAR/B3 for the European Commission, p. 8/9: http://ec.europa.eu/environment/liability/legalstudy_full.pdf

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equivalent strict liability rules exist nationally in the UK in relation tobiodiversity damage, wildlife protection is left at a clear disadvantageand receives a lesser standard of protection compared with water andland damage. This is the case, despite biodiversity being one of the majorareas where the ELD adds to existing legislation, and despite the fact thatthe fundamental reasons for the ELD’s existence include not only theproblem of contaminated sites, but also the accelerating loss ofbiodiversity60. It also runs contrary to the UK Government’s internationalcommitment to halting biodiversity loss by 201061 and to Defra’s PublicService Agreement targets in relation to SSSIs and farmland birds.

Compliance with provisions of the Habitats and Wild Birds Directives

66. Member States are obliged, under Article 6(2) of the Habitats Directive, to“take appropriate steps to avoid, in the special areas of conservation, thedeterioration of natural habitats and the habitats of species as well as disturbanceof the species for which the areas have been designated, …”.

67. If a system of fault based liability is introduced in relation to biodiversitydamage caused by non Annex III activities, then, in cases where no faultcan be established (and restoration cannot be achieved under section 31of the Wildlife and Countryside Act 1981, as amended (the WCA)) (seeattached flowchart), the companies causing the damage will not beobliged to restore it, but Member States will still be subject to the relevantobligations under Article 6(2), Habitats Directive and will be responsiblefor meeting these obligations (and therefore for restoring the damage).

68. Whilst most Natura 2000 sites are underpinned by SSSIs, not all Natura2000 qualifying interest features are also features of the correspondingSSSI62. Where this is the case, the Natura 2000 feature may not benefitfrom protection under the WCA, and it would not fall within the ELD63 ifno fault/negligence could be established. In such cases, there will be nomechanism available to prosecute and seek restoration of the featureunless strict liability under the ELD is applied. The table below shows thedegree of protection afforded to two species listed on Annex 1 of the WildBirds Directive in the Special Protection Area (SPA) network in Englandthrough the WCA. There are many species that could fall within this

60 Recital 1 61 As agreed by the EU Council of Ministers in Götheburg in 2002. 62 although, of course, strictly speaking they should be: if a species is considered to be of EU importance it will also automatically qualify as a species of national importance and should therefore have a SSSI designated for it. 63 unless it happened to be a species covered both by the ELD and the WCA.

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category if they were subject to ELD type damage, for example the henharrier and woodlark, see following table:

Analysis of qualifying features of SSSIs underpinning SPA for hen harrier and woodlark in England

SPA Species Total number of SSSIs within SPAs notified for that species

No (%) of SSSIs where SPA species not a citation feature

Hen harrier 18 9 (50%) Woodlark 67 42 (61%)

69. Similar arguments can also be applied to Article 2 of the Wild BirdsDirective, which obliges Member States to “take requisite measures tomaintain the population of the species …” at the appropriate levels, and toArticle 12(1)(d) of the Habitats Directive, which contains a similar dutyon Member States to “establish a system of strict protection for the animalspecies listed in Annex IV(a)… prohibiting…(d)deterioration or destruction ofbreeding sites or resting places64”.

70. However, unlike Article 6(2) of the Habitats Directive, Article 2 of theBirds Directive and Article 12(1)(d) of the Habitats Directive are notrestricted to specific areas of protection, which means that this could alsoapply outside designated SPAs/Special Areas of Conservation (SACs).This would be in line with the ELD’s general approach. However, takento its logical conclusion this would mean that, if Article 6(2), 12(1)(d) ofthe Habitats Directive and Article 2 of the Birds Directive were to becomplied with, strict liability would need to be applied instead of faultbased liability:

anywhere (on and off SPAs and SACs) in the case of the birds coveredby the ELD and species listed in Annex IV(a) of the Habitats Directive;only on SACs in the case of other habitats and species covered by theELD.

71. This, of course, would be nonsensical, especially given the ELD’s generalapplication to habitats and species on and outside designated sites.Therefore, it would make sense to impose strict liability for all relevantbiodiversity damage, whether caused by an Annex III activity or not, andwhether on or outside a designated site.

72. Please see Diagram for further elucidation of the preceding paragraphs.

64 Annex IV(a) species are covered by the ELD and this language is mirrored in Article 2(3)(b) of the ELD.

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On N2K sites:potential to be Art

6(2) compliant -needs guaranteedrestoration order

ELD species/habitats NOTmentioned onSSSI citation

ELD listed species/habitats on oroff Natura 2000 sites (“N2K sites”)

Annex IIIoperations

Non-Annex IIIoperations

Strict liability Fault-basedliability

ELD species/habitats

mentioned onSSSI citation

Unable to provenegligence/fault

Resort to WCAprosecution unders28P (reckless/

intentional)

Potential toprosecute unders28P etc : must

prove intentional/reckless

Not possible toprosecute asspecies not a

SSSI qualifyinginterest

Prove intentional/reckless

No mechanism tosecure restoration

Potential restorationorder - not guaranteed

mechanism to securerestoration order

Art 6(2) and12(1)(d) HD

and Art 2WBD

compliant

NOTArt 6(2) HDcompliant

for N2Ksites

The Environmental Liability Directive –Strict and fault-based liability and

compliance with general provisions of the Habitats and Wild Birds Directives

No restorationorder

Fail to prove reckless etc

No mechanism tosecure restoration

NOTArt 6(2), Art12(1)(d) HD

or Art 2WBD

compliant

NOTArt 2 WBD/Art

12(1)(d) HDcompliant on

or off N2Ksites

On or off N2Ksites: Potential tobe Art Art 12(1)(d)HD and Art 2 WBDcompliant - needs

guaranteedrestoration order

ELD species/habitat outside N2K site ELD species/habitat on N2K site

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73. QUESTION 3.5: (paragraph 3.25 3.27; page 30)

In respect of water damage, which of the following approaches to strictliability do you favour, and why:(a) limited to activities falling within Annex III of the ELD, or(b) applying to any activity causing environmental damage?

74. Key issues

Key issues – Question 3.5

1) The RSPB agrees with option (b)

2) The principle of strict liability should be applied to all environmentaldamage, including water and land damage, irrespective of what type ofactivity caused the damage and irrespective of where the damage tookplace.

Fundamental issues

75. The same line of argument applies as in relation to Question 3.4 above.Therefore, the RSPB favours the extension of strict liability to all activitiesthat cause environmental damage, including water and land damage.Moreover, the distinction between Annex III and other activities isarbitrary and it goes against existing UK laws65. If the distinction isintroduced this could potentially lead to a watering down of UK laws. Inany case, it would lead to inconsistency and confusion in the applicationof the ELD itself and of other existing laws.

76. QUESTION 3.6: (paragraph 3.28 3.30; page 31)In respect of land damage, the Government proposes to limit strict liabilityfor remediation of damage to activities falling within the scope of Annex IIIof the ELD.

Do you support this approach? If you do not what are your reasons?

65 The Water Resources Act 1991 and the Environmental Protection Act 2000 apply to anyone who pollutes the environment, including owners and operators, in the case of Part IIA of the Environmental Protection Act. No arbitrary distinction between dangerous and non-dangerous activities is made.

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77. Key issues

Key issues – Question 3.6

The principle of strict liability should be applied to all environmentaldamage, including water and land damage, irrespective of what type ofactivity caused the damage and irrespective of where the damage tookplace.

Fundamental issues

78. The same line of argument applies as in relation to Question 3.4 above.Therefore, the RSPB favours the extension of strict liability to all activitiesthat cause environmental damage, including water and land damage.Moreover, the distinction between Annex III and other activities isarbitrary and it goes against existing UK laws66. If the distinction isintroduced this could potentially lead to a watering down of UK laws. Inany case, it would lead to inconsistency and confusion in the applicationof the ELD itself and of other existing laws.

79. QUESTION 3.7: (paragraph 3.31 3.35; page 32)Should the ELD be implemented to include only EC protected species andhabitats or also to include species and habitats for which any SSSIs isdesignated under national legislation?

80. Key issues

Key issues – Question 3.7

1) The RSPB strongly urges the Government to include SSSIs/ASSIs in theprotective regime introduced to transpose the ELD.

Given the importance of the SSSI/ASSSI network for UK wildlife protection,as well as the efforts already being made to protect and enhance SSSIs/ASSIsand the Government’s own targets for their protection, together with the factthat the RIA’s cost benefit analysis has found there to be an overall benefit inextending the ELD to include SSSIs, everything points towards includingSSSIs in the ELD system. Not to include SSSIs/ASSIs would be illogical,counter productive and a fundamental mistake.

66 The Water Resources Act 1991 and the Environmental Protection Act 2000 apply to anyone who pollutes the environment, including owners and operators, in the case of Part IIA of the Environmental Protection Act. No arbitrary distinction between dangerous and non-dangerous activities is made.

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2) In addition, the RSPB also urges the Government to include Ramsar sitesin the protective regime introduced to transpose the ELD.

The Government has made a policy commitment to treat Ramsar sites asNatura 2000 sites. It would re nege on this commitment if it did not includeRamsar sites in the ambit of the ELD regime.

3) The RSPB would also like to see UK BAP habitats and species covered bythe legislation, at least in the form of an option to be considered at a laterdate.

The UK Biodiversity Action Plan (UK BAP) provides the most up to datereflection of UK biodiversity priorities. Therefore, the habitats and speciessubject to the UK BAP should be protected under environmental liabilityrules. At present this may not be possible because sufficient data has not yetbeen collected. However, this is set to change and there should at least be anoption to include UK BAP habitats within the next 5 years.

Background

SSSIs/ASSIs

81. We agree with the reasons set out in paragraphs 3.32 to 3.34 in Section 3of the ELD Consultation. The following paragraphs in support ofincluding SSSIs/ASSIs in the ELD transposing legislation are in additionto those already set out in the ELD.

82. The SSSI system is an important pillar of nature conservation in the UK.SSSIs represent the best sites for wildlife and geology in England andWales. They support many characteristic, rare and endangered species,habitats and natural features. Moreover, SSSIs are also used to underpinother national and international nature conservation designations, forexample Natura 2000 sites that are covered by the ELD. They are also themain (enforcement) mechanism through which English law ensures thatSPAs are protected and the Wild Birds Directive is fully complied with67.

67 The same applies to ASSIs in Northern Ireland.

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‘SSSIs have been selected to contain the best examples of habitats and sites forflora, fauna, and geological or physiographical interest in the UK. Although theconservation value of the SSSI series, or that of individual SSSIs, cannot bequantified, it is of immense importance and largely irreplaceable.’ DEFRAreport, 200468

83. In addition, SSSI designated features, which are not also part of theprotective system of an SAC or SPA, even if they are at the same site asan SAC/SPA, are not strictly covered by the ELD and may not be coveredby the transposing legislation. In cases of damage to more than onespecies or habitat at the same site, but subject to different levels ofprotection, this could mean that damage to one species is remedied underthe ELD, but the equivalent damage to a species, which is merely a SSSIfeature, is not. For example, Catcott, Edington and Chilton Moors SSSI iswithin the Somerset Levels and Moors SPA. Both the SSSI and the SPAqualify for the populations of wintering waterfowl the site supports, butthe SSSI also qualifies for its diverse breeding bird community, botanicalinterests and a range of invertebrate fauna. It would clearly be confusing,unfair and inequitable if only damage to one of the qualifying interestfeature types could be remedied under the ELD, when all are protectedinterest features of the SSSI.

84. Including SSSIs/ASSIs, according to the Government’s own best estimatesin its cost benefit calculations in the RIA (see above), will provide anover all economic benefit to society. Again, taking into account thepotential over statement of costs in the RIA, which has already beenidentified above, as well as the other economic arguments discussedabove, the benefits are likely to be greater than the ones actually stated.

85. Moreover, as also already mentioned, not including SSSIs does not makeany economic sense for operators either. An operator who causesbiodiversity damage in a situation that affects a Natura 2000 site, as wellas an SSSI (which is quite likely because of the overlap between SSSIs andNatura 2000 sites), could be causing ELD damage on the Natura 2000 siteand on the SSSI if the damage was to an ELD protected species or habitat,and at the same time causing damage to the SSSI, which would not becovered by the ELD. This would mean that the operator would besubject to criminal proceedings under the Wildlife & Countryside Actand subject a duty to restore under the ELD. This outcome is nonsensical

68 CJCConsulting (2004) Final report for the Department for Environment, Food and Rural Affairs. Cost Effectiveness Study of Approaches for Delivery of PSA Target Relating to SSSIs. http://statistics.defra.gov.uk/esg/reports/sssi/

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in relation to the biodiversity concerned, after all the damage will be toan interlinked and interdependent ecological network, but it will alsomean increased costs and administrative burdens for the operator, thusleading to unnecessary double banking69.

86. Given the importance of the SSSI/ASSSI network for British wildlifeprotection, as well as the efforts already being made to protect andenhance SSSIs/ASSIs and the Government’s own targets for theirprotection everything points towards including SSSIs in the ELD system.This is confirmed by the RIA’s cost benefit analysis that has found thereto be an overall benefit in extending the ELD to include SSSIs. Not toinclude SSSIs/ASSIs would be illogical, counter productive and afundamental mistake.

Ramsar sites

87. The RSPB understands from stakeholder discussions with Defra thatRamsar sites are not to be included within the scope of the ELDtransposing legislation. The Government has a long standing policycommitment to treat Ramsar sites as Natura 200070. Given that theNatura 2000 network is protected by the ELD, and given the sensitivenature of Ramsar sites, it is therefore extremely surprising and verydisappointing that Ramsar sites are to be omitted. Also, treating Ramsarsites differently from Natura 2000 sites under environmental liabilityrules would be the Government’s first ever departure from this policy,setting a worrying precedent for future cases.

88. In any case, omitting Ramsar sites from the scope of the new legislationdoes not make sense, especially as there is an extensive overlap betweenRamsar and Natura 2000 sites. According to our figures, there are just 7Ramsar sites across the UK as a whole that do not wholly or partlyoverlap with Natura 2000 sites (see table). Therefore, the additional costsof inclusion are likely to be marginal.

89. We strongly support the inclusion of all Ramsar sites in the protectiveambit of the ELD implementing legislation, whether they are coincidentwith Natura 2000 sites or are wholly or partly outside them.

69 see FN 3 above. 70 See PPS 9. Also: “Ramsar sites in England – A policy statement”, Michael Meacher, November 2000, para 10 and PPG 9.

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Table of Ramsar sites outside the Natura 2000 network

Ramsar Site CountryEsthwaite Water EnglandPevensey Levels EnglandRostherne Mere EnglandAnglsey and Lynn Fens WalesCors Caron WalesCors Fochno and Dyfi WalesCrymlyn Bog Wales

UK BAP habitats and species

90. In the UK, a Biodiversity Action Plan was launched in 1994 to deal withthe conservation of biodiversity in response to the Rio Convention71.Species and habitats of conservation concern were identified and plansestablished to improve their status. The list of UK priority species andhabitats is currently being revised (the completion date has been put backto March 2007) but the UK Biodiversity Action Plan provides the mostup to date reflection of UK biodiversity priorities. Therefore, UK BAPhabitats and species should be given protection under environmentalliability rules.

91. Government’s own figures show that 375 UK BAP species would not becovered72. This represents 79% of the 475 species that are included in UKBAP species action plans (some of the 391 SAPs are grouped planscovering more than one species). Only 45 of the 278 UK BAP species thatare found in Scotland would be automatically protected under the ELD73.

92. Notable UK BAP species that are not included within the Government’sproposals for implementation of the ELD according to the Governmentand Scottish Natural Heritage include the cirl bunting (Emberiza cirlus),corn bunting (Miliaria calandra), tree sparrow (Passer montanus), bullfinch(Pyrrhula pyrrhula), the black grouse (Tetrao tetrix), the water vole(Arvicola terrestris), the red squirrel (Sciurus vulgaris), and the brown hare(Lepus europaeus), as well as many butterflies and moths.

71 The statutory basis for the list of BAP habitats and species is found in section 74 of the Countryside and Rights of Way Act 2000. 72 Answers to Parliamentary Questions tabled by Alan Simpson MP: Written Parliamentary Answer 23rd May 2006 (Hansard column 1690W) and detailed information subsequently provided. http://www.publications.parliament.uk/pa/cm200506/cmhansrd/cm060523/text/60523w0516.htm#06052520002445 73 The Scottish Parliamentary answer to Mark Ruskell MSP : Scottish Parliament written answer, 4th

September 2006. http://www.scottish.parliament.uk/business/pqa/wa-06/wa0904.htm

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93. Considerable public and charitable expenditure is being invested inefforts to restore large scale habitats and to protect particularlyvulnerable species of conservation importance74. However, if an activitycauses significant damage to any of the huge number of species that falloutside the scope of the basic ELD, there will be no requirement for theperson or company undertaking the activity to pay for remediation totake place.

94. In relation to BAP habitats and species, no cost benefit analysis has beencarried out in the RIA, so we do not understand how the Government canmake a cost based judgement. It seems likely that costs in relation toBAP habitats and species may be higher than SSSIs, which generally havegood baseline data, but a significant programme of work is currentlyunderway which will mean that, in the near future, such a biologicalassessment will be possible. Therefore, we strongly believe that thereshould at least be an option to include UK BAP habitats and specieswithin five years.

95. Additional reasoning supporting the inclusion of both SSSIs/ASSIs andUK BAP habitats and species is contained in Annex 1.

96. QUESTION 3.8 (paragraph 3.36 3.40; page 33)

Do you support the Government’s intention to excluded treated sewagesludge spread for agricultural purposes from the scope of the ELD?

If you do not what are your reasons?

97. Key issues

Key issues – Question 3.8:

The RSPB disagrees with the Government’s intention in relation to thesewage sludge exclusion.

74 Although the cost of implementing most of the species action plans under the UK BAP is relatively low (a total of £21.8 m per annum for 391 SAPs, an average of £56k per plan74), there are some exceptions. For species subject to widespread decline and needing vital recovery work, costs can be significant (see UK Biodiversity Action Plan: Preparing Costings for Species and Habitat Action Plans: Costings summary Report. Revised Report to Defra and Partners. Submitted by GHK Consulting Ltd in association with RPS Ecology. April 2006)

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98. The RSPB supports the safe and responsible application of sewage sludgefor agricultural benefit. However, we have concerns about extending anyform of exemption from liability, not least because inappropriateapplication can lead to excessive leaching of nutrients and direct runoff tosensitive waters.

99. While we accept the logic of the argument presented in paras 3.37 – 3.40,it is our belief that there is a rational economic and environmental case toextending the liability for water and land damage beyond the scope ofAnnex III activities. As a result, the spreading of sludge for agriculturalimprovement (whatever their origin) would fall under the scope of theELD and where damage to land, air or water is threatened or occurs,action could be taken.

100. Such an approach would provide operators with a clear incentive tomanage sludge application in a way that minimizes risk of damage andprovide a clear route for recovering damages and securing restoration.

101. QUESTION 3.11 (paragraph 3.52 3.59; page 37)(a) What are your views about the treatment of costs in relation to caseswhere an operator can prove that the incident giving rise to an imminentthreat of or actual environmental damage is the result of action by a thirdparty (non contractual) despite appropriate safety measures?(b) Do you have a view about whether the Government should provide forexpress cost recovery mechanisms in the implementing regulations to enablethe operator to recover costs from third parties? If so, what new or additionalmechanisms would you suggest?

102. The RSPB supports the UKELA’s response in relation to Question 3.11.

103. QUESTION 3.12(a) (paragraph 3.60 3.64; page 39)The Government’s view (in respect of England and Northern Ireland) is that,on balance, a permit defence is justifiable and intends to implement thisdefence for those elements of the ELD which are additional to those addressedby existing environmental protection legislation. Do you agree?

If you do not what are your reasons?

104. See paras 107ff below, questions 3.12(a) and 3.14 are answered jointly.

105. QUESTION 3.14 (paragraph 3.68 3.69; page 42)The Government’s view is that, on balance, this defence is justifiable andintends to implement this defence for those elements of the ELD which are

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additional to those addressed by existing environmental protectionlegislation. Do you agree?

If you do not agree, what are your reasons?

106. See paras 107ff below, questions 3.12(a) and 3.14 are answered jointly.

107. Key issues

Key issues – Question 3.12(a) and 3.14:

The RSPB strongly opposes the inclusion of the permit and state of the artdefences in the UK’s transposing legislation.

There are no convincing reasons for including the permit defence, exceptopposition from the business sector. All legal and logical arguments speakagainst it.

The RSPB remains convinced that the principal of polluters takingresponsibility for their action holds true across all sectors of industry.

108. Table 1 sets out arguments for and against the permit defence and showsclearly that there are no valid reasons for including the permit defence.

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Table 1

Issue Forincluding permit/state of the art defences

Againstincluding permit/state of the art defences

Certainty Including the permit and the state of the art defencesprovides formore certainty because businessesknow that they will not have to pay for restoringenvironmental damage they cause as long as theyhave complied with their permit or operatedaccording to the state of scientific and technicalknowledge at the time.

Including the permit and state of the art defences provides for less certainty, becausethe defences introduce several elements of doubt and uncertainty in relation to therestoration of environmental damage and the application and enforcement of theregime. Instead of an automatic duty to pay for restoration of environmental damagewhen an operator is liable under the ELD, the operatormay or may not have to pay forrestoring the damage he caused, depending on:

the type of activity he carried out;the type of permit he operated under;whether or not he can show that he was not negligent;whether or not he can prove that he was not in breach of his permit;whether or not he can prove the activity or emission was in accordance with thestate of scientific and technical knowledge at the time.

In addition, the enforcement mechanism of the ELD is not very clear, which initself will be a cause of major uncertainty if the defences are introduced (seebelow).

The “permit” and “state of the art” defences only apply to remedial actions, notpreventive actions, thereby creating confusing and inconsistent rules i.e. uncertainty –in relation to financial responsibility before and after an event causing environmentaldamage.

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Issue Forincluding permit/state of the art defences

Againstincluding permit/state of the art defences

The state of the art exception, in the form in which it is contained in the ELD, i.e. anexception depending on the state of scientific and technical knowledge, which is oftenalso called the “development risks defence”, does not as such exist in UK law except asregards the Consumer Protection Act 1987, which implements the Product LiabilityDirective75. Experience in relation to the “development risks defence” under theProduct Liability Directive appears to have been varied and inconsistent between, andeven within, Member States, leading to great uncertainty.

Insurability Because of better business certainty, the risk becomesmore insurable, as insurers are better able to predictand calculate the underlying risk.

The permit defence would restrict the number of cases in which an operator had to payfor environmental damage he caused and therefore claim under a relevant insurance,so it would reduce the number of potential claims, thereby probably reducinginsurance premiums. It would also probably increase the insurer’s certainty inassessing whether an insured was or was not in breach of his permit because of theneed to prove compliance (and it would appear unlikely that with or without apermit exception insurers would cover a claim if the relevant permit had beenbreached). However, logically, it would not make a difference to thepredictability/calculability of the underlying risk of environmental damage happening.Complying with the relevant permits could merely give providers of financial securityadded comfort that the insured event may be less likely to happen. The differencewould be one of costs (premiums), not certainty or assessability of risk.

75 Council Directive 85/374/EEC on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (the “Product Liability Directive”)

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Issue Forincluding permit/state of the art defences

Againstincluding permit/state of the art defences

Equity It is not equitable or fair to “penalise” operators whohave adhered to their permits in the same way asoperators who do not comply.

It would not be fair to “penalise” operators who adhere to their permits in the sameway as operators who do not under the legislation under which the permits areissued, e.g. IPPC and the relevant regimes deal with this by imposing sanctions andpenalties for breaches. However, the ELD is a separate and distinct piece of legislationwith sometimes similar, but still separate and distinct aims to those of the Annex IIIinstruments that can give rise to the permit defence. Compliance with an IPPC or anyother permit does not free operators from liability (or an obligation to pay for cleanup) under general laws on liability (e.g. tort law) or other environmental laws (e.g. PartIIA of the Environmental Protection Act 1990 on contaminated land or the HabitatsDirective76). In fact, the introduction of the permit and state of the art defences wasconsidered and rejected by the Government in relation to what is now Part II A, EPA77

Similarly, the Water Act 2003 recently removed a form of permit defence fromabstraction licence holders, making them open to civil claims for the first time since theintroduction of licensing in the Water Resources Act 1963. The RSPB fully concurs withDefra’s own assessment of the benefits of removing the permit defence presented inthe finalised RIA. This found that although the removal of protection might be costlyfor those found to be causing damage “The Government considers that immunity fromliability is inconsistent with the environmental responsibility that it wishes to foster amongstabstractors. The costs will only fall on those who do not take proper responsibility for theenvironmental effects of their abstractions.”78

76 Directive 92/43/EEC 77 See Hansard, House of Lords 31 Jan 1995: Column 1457 and 7 mar 1995: Column 211. Reasons discussed in the following discussions in this table. 78 Water Bill- Regulatory Impact Assessment, Environmental and Equal Treatment Appraisals.(2nd Edition) www.defra.gov.uk/environment/water/legislation/pdf/riaupdate_030722.pdf

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Issue Forincluding permit/state of the art defences

Againstincluding permit/state of the art defences

Also, the European Court of Justice has held that it is not possible to introduce aderogation from the application of the species protection provisions in Articles 12 and13 of the Habitats Directive on the basis of the legality of the act carried out79.Introducing the permit defence under the ELD could be seen as an attempt to do justthat by the back door, as the issue at stake is the same as under the Habitats Directive(significant damage to the same protected species).

Similarly, the ECJ has also ruled that “state of the art” considerations taken intoaccount under Art 6(3) and (4)) in assessing the safety of a plan or project do notpreclude the Habitats Directive from applying, i.e. a decision that a plan/project can goahead based on state of art considerations is not a defence, because of the general dutycontained in Art 6(2) of the Habitats Directive80. Again, introducing the state of the artdefence under the ELD would militate against this fundamental principle.

Many small businesses do not operate under an Annex III permit81 because they eitherdo not carry out dangerous (Annex III) activities or their activities do not meet therelevant thresholds and conditions to necessitate an Annex III permit82. Even ifintroduced into national law, the permit defence will not be available to them. Thiscould create an unfair competitive advantage for bigger companies who possess moreresources.

79 See paras 109-114 of Case C6-04 ECJ ruling of 20 October 2005. 80 Case c-127/02, Llandlijke Vereniging tot Behoud van de Waddenzee, Nederlandse Vereniging tot Bescherming v Staatssecretaris van Landbouw, natuurbeheer en Visserij,ECJ, see in particular paras 59 and 61 and para 4. of Operative part of judgment. 81 i.e. “an authorisation conferred by or given under applicable national laws and regulations which implement those legislative measures adopted by the Community specified in Annex III” (see Art 8(4)(a)), see list in Annex to this paper. 82 See also Table F7, p. 52, RIA, which states that most operators affected by the permit defence are larger companies, although some “damaging” licences may also be held by small companies such as small farmers.

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Issue Forincluding permit/state of the art defences

Againstincluding permit/state of the art defences

Some of the permits under the EU instruments listed in Annex III specifically targetone particular environmental medium and consider the impacts on such a medium at aspecific location taking into account the particular local circumstances and facts, e.g. inrelation to air pollution or, to an extent, IPPC. Even in those circumstances, permitconditions may not consider all potential pollutants, but the permit exception wouldstill apply because the damage was caused by an authorised “event”83. Moreover,other consents are much more general and vague, for example labelling and transportrequirements in relation to dangerous substances etc, authorisations in relation to theplacing on the market of pesticides or biocides and of GMOs, registration andauthorisation of the contained use of GMOs. These permits have to be general andvague by their nature and they cannot be site specific. This makes them completelyunsuitable for the “permit exception” and it would conflict with existing UK laws andwith considerations relating to the natural justice, equity and fairness to include themin any implementing legislation in relation to the permit defence.

Encouragingprevention

Including the permit and state of the art defencespromotes prevention of environmental damage,because the defence only covers events or activitiesexplicitly referred to in the permit and because itcreates the right incentives to prevent damage.

See arguments above. Most of the permits listed in Annex III are not very specific.Instead they are very general in nature and describe general events and activities, notspecific ones. This does not promote certainty or prevention. Instead it provides afalse sense of security, thereby stopping additional preventive measures being taken.Similarly, adhering to state of the art technology could be an easy way out of lookingfor improved ways of operating and of preventing environmental damage (see alsobelow)

83 see wording of Art 8(4)(a).

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Issue Forincluding permit/state of the art defences

Againstincluding permit/state of the art defences

Liability and an obligation to pay for restoration irrespective of compliance withpermit and adherence to the state of the art technology provides a strong incentive topromote prevention of damage.

Polluter paysprinciple andstrict liability

The “polluter pays principle” should not apply inthis context for reasons of certainty and fairness setout above.

The ELD has the twin goals of preventing and remedying environmental damagethrough the application of the “polluter pays principle”. To achieve this, the Directiveclaims to create a “strict liability” regime. This should mean that operators who causeenvironmental damage are liable regardless of whether they are at fault, therebyensuring that damage is remedied by the person who causes it (the polluter) and not atthe taxpayer’s expense. However, using “compliance with permit” and “state of theart” as a reason to release operators from all clean up costs derogates from theseprinciples. In fact the two exceptions directly oppose the “polluter pays” principle andundermine the principle of strict liability. Particularly, in view of the enforcementmechanism under the ELD (see below), this means that environmental damage, ifremedied, will need to be remedied at the competent authority’s or taxpayer’s expenseor not at all (see below). This was one of the reasons that the defences were rejected inrelation to what is now Part IIA, EPA84 of the UK contaminated land regime.

Enforcement,costs andsubsidiarystateresponsibility

See above. The enforcement mechanisms of the ELD have been left very opaque, and it will be upto the Member States to flesh them out and make them functional, although the ELDdoes appear to impose a duty on operators to carry out some, if not all, remedialactions before being able to assert their potential right not to have to bear the costs ofthose measures under Art. 8(4). This follows from the way Art 6 is set out: It imposesan absolute obligation on the operator to take immediate control, containment andprevention measures – without consultation with the competent authority – and to

84 See Viscount Ullswater’s statement in Hansard, House of Lords 31 Jan 1995: Column 1457, para 3.

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Issue Forincluding permit/state of the art defences

Againstincluding permit/state of the art defences

take the necessary remedial measures –according to what the competent authoritydetermines. The right not to have to bear the costs of the measures “taken” 85 is anexpress right to be re imbursed in relation to the mandatory defences86. Given that thepermit and state of the art defences are only discretionary, there would be no need tospecify such a mechanism in the ELD itself, but it would be logical, just andproportional for Member States who introduce these defences to follow the samemechanism.

This then pre supposes that there will be a mechanism for the re imbursementof claims if the regime is to be at all functional. However, the question as towho will re imburse operators is left open, and could be an issue, particularlyin Member States that were strongly opposed to the concept of subsidiary stateresponsibility87 during the ELD negotiations. If the discretionary defences(permit and state of the art) are introduced on top of the mandatory ones setout in Art 8(3), this could bring the regime several steps closer to a reintroduction of the concept of “subsidiary state responsibility” through theback door, as it would convert large parts of the powers of the competentauthority to request operators to carry out remedial measures or to takeremedial measures itself as a last resort, to a de facto obligation either to pay forsuch measures or to carry them out itself88, unless other models for re

85 Note the use of the past tense here. 86 3rd party interference and compliance with compulsory order in Art. 8(3). 87 Subsidiary state responsibility was a concept contained in the Commission proposal of the ELD roughly speaking making Member States (the competent authority) responsible for remedying environmental damage on sites where the polluter could not pay or could not be found. 88 See Art 6(3): The ELD contains a power, not a duty, for the competent authority to take remedial measures if the operator fails to comply with his obligations, cannot be identified or “is not required to bear the costs under the Directive”) as a means of last resort.

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Issue Forincluding permit/state of the art defences

Againstincluding permit/state of the art defences

imbursement, such as purpose made industry or state financed funds,insurance or other financial security mechanisms are considered.

If no re imbursement mechanism is provided for, there may be little incentive onoperators to comply with the regime, especially if the rest of the enforcement regime isnot very strong. Competent authorities on the other hand, may have little incentive toenforce, if they know that they would come under pressure to pay for remedialmeasures without there being a proper mechanism to deal with such claims. In theabsence of third party involvement, e.g. by NGOs, an enforcement stalemate mightensue and the regime would be ineffective.

However, if this was to happen, the UK would have implemented the ELD incorrectly.If the ELD, or at least some of its provisions, were held to be directly effective (as hasbeen established, for example, in relation to the EIA Directive in the Delena Wellscase89), then there would be a danger of costly and complicated legal actions takingplace forcing this issue to be dealt with by improved legislation in any case.

Credibility ofEU legislationand types of“authorisation”covered.

Without a permit defence, the ELD will damage thecredibility of recent EU environmental policy, inparticular the IPPC Directive, WFD and WasteFramework Directive90, signalling that the highlysophisticated permitting systems under those

Arguably, the credibility of EU environmental policy is more at risk if compliance withone EU environmental law can be used to avoid proper compliance with anotherequally important and valid EU law. The permit defence weakens the ELD to theextent of making it potentially ineffective in a number of areas (e.g. in the field of GMdamage, or damage through pesticides, waste or dangerous substances governed by

89 Case C-201/02)) 90 Directive 2006/12/EC of the European Parliament and Council of 5 April 2006 on waste

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Issue Forincluding permit/state of the art defences

Againstincluding permit/state of the art defences

Directives are ineffective and inadequate. Annex III instruments) and it directly contravenes the intentions and provisions of theHabitats Directive (see above91), which would definitely affect the credibility of EUenvironmental policy.

Severity ofpermitconditions

As long as permit conditions are set at the rightlevels, it is fair and just that the permit defenceshould apply. If permit conditions are too lax, thenthat is a problem for the permitting authority, not theregulated business.

One of the reasons the permit defence was rejected in relation to what is now Part IIA,EPA was that “the general effect of such provisions could well be positively damagingto industry because it would encourage greater and often excessive caution on the partof regulators simply to protect themselves against potential financial liabilities92”.Flexibility in the permitting process is held to be one of the strengths of England’sregulatory system. This would be at jeopardy if the permit defence is introduced.

Effect on stateof science

The state of the art defence enables companies tobetter predict and calculate potential costs andliabilities. Its removal would stifle the developmentof new technologies.

Making companies liable for environmental damage they cause without any get outclauses provides a strong incentive to prevent causing such damage and to improveadvances in more environmentally friendly technologies. Including the defences doesthe opposite. In relation to the state of the art defence, in fact, “[a]nother perverseeffect could be to provide an incentive to hold back developments in the state ofscience, as greater understanding could result in greater future liabilities93”. Inaddition, given the long potential latency periods of environmental damage, includingthe state of the art defence “would leave almost any attempt by the enforcingauthorities to deal with any [environmental damage] open to litigation attempting toprove the state of knowledge in the past94”.

91 See Case C6-04 ECJ ruling of 20 October 2005 mentioned in fn2 above. 92 Hansard, House of Lords 31 Jan 1995, Column 1457, para. 2. 93 Viscount Ullswater’s statement in Hansard, House of Lords 31 Jan 1995: Column 1457, para. 7 on the state of the art defence when it was discussed in relation to what is now Part IIA, EPA. 94 Id.

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109. QUESTION 3.12(b)The Welsh Assembly proposes to disapply the permit defence for GMOrelated occupational activities in line with paragraph 3.64, above. Forrespondents in Wales, do you agree? If you do not what are your reasons?

110. If the permit defence is introduced, something the RSPB opposes (seeabove), then the RSPB would support it being disapplied in relation toGMO related occupational activities in Wales and/or the whole of the UK.

111. QUESTION 3.13 (paragraph 3.65 3.67; page 41)Do you favour the application of the permit defence before or afterremediation is undertaken by the operator? In either case what are yourreasons?

112. As discussed above, the RSPB opposes the introduction of a permitdefence. However, if this does happen, then, as discussed in Table 1,section entitled “Enforcement, costs and subsidiary state responsibility”,the introduction of what has been termed “self executing provision” bysome commentators95 would mean that applying the permit defencebefore remediation takes place would amount to a breach of the ELD.

113. QUESTION 3.14 (paragraph 3.68 3.69; page 42)The Government’s view is that, on balance, this defence is justifiable andintends to implement this defence for those elements of the ELD which areadditional to those addressed by existing environmental protectionlegislation. Do you agree?

If you do not agree, what are your reasons?

114. See para.s 107ff above.

115. QUESTION 4.2 (paragraph 4.6 4.8; page 44)In cases where significant environmental damage is caused by a number ofidentifiable parties which approach to apportioning costs do you support,and why:(a) proportionate? or

95 see Valerie Fogleman, Enforcing the Environmental Liability Directive: Duties, Powers and Self-Executing Provisions, [2006] 4 Env. Liability : Enforcing the Environmental Liability Directive , p.127

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(b) joint and several?

116. The RSPB is in favour of adopting joint and several liability in thiscontext and supports UKELA’s response in relation to this question.

117. QUESTION 4.4 (paragraph 4.12 4.16; page 46)Are you in favour of or opposed to applying paragraphs 1 and 4 of Art 12 tocases of imminent threat of damage? In either case what are the reasons foryour position?

118. Key issues

Key issues – Question 4.4

The RSPB strongly supports applying paragraphs 1 and 4 of Art 12 to casesof imminent threat of damage, and fundamentally opposes the exercise ofthe Government’s discretion to remove public rights of access to justice insuch cases.

The RSPB thinks that removing access to justice rights under Art 12(5) wouldbe in breach of the Aarhus Convention96.

The Aarhus Convention

119. The Aarhus Convention, to which both the EU and the UK aresignatories, gives members of the public a right of access toadministrative97 or judicial procedures to challenge acts and omissionsby public authorities, which contravene national environmental lawprovisions98. Therefore, removing the right of access to justice in cases ofimminent threat of damage would not only be ineffectual, as the rightexists under the Aarhus Convention in any case, but would effectivelyamount to a breach of the Aarhus Convention.

General issues

120. In any case, in terms of general arguments, more, rather than less, NGOand public involvement in enforcing the ELD, would be much morebeneficial for the enforcement of the ELD transposing legislation and thepublic purse.

96 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters 1998, Aarhus, 25 June 1998 97 emphasis added 98 in Art 9(3)

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121. As already seen, the ELD does not provide for a very strong enforcementregime. Especially if the permit and state of the art exceptions areintroduced without an effective system of paying for the costs ofrestoring environmental damage, the rights of NGOs to request thecompetent authority to take action (under Article 12) will be crucial. Inrelation to cases where there is an imminent threat of damage, this isespecially important, as it will be particularly in those cases, where theright to request the competent authority to take action will be mostimportant.

122. Industry concerns are that NGOs and/or affected parties, which have thesame rights, will bring spurious actions. However, NGOs have nointerest in doing this, as they wish to remain credible and, in any case, donot have the resources for this. After all, every request for action has tobe based on evidence that needs to be provided to the competentauthority.

123. Other concerns have been voiced that the NGO access to justiceprovisions may increase administrative costs for the competent authority(even despite there being a duty to provide evidence in such cases).However, other environmental regimes use and even, to an extent, relyon the help of members of the public or of environmental organisationsin much less well defined circumstances than under the ELD. Forexample:

The Environment Agency has a hotline for members of the public (notjust affected parties or environmental NGOs) to notify it of waterpollution incidents. This is a much more widely framed public rightthan the limited ones contained in Article 12 of the ELD.

Under the Environmental Impact Assessment (Uncultivated Land andSemi natural Areas) (England) (Amendment) Regulations 2001,members of the public and environmental organisations, such as theRSPB, have notified DEFRA of breaches or even helped DEFRA tobring prosecutions against landowners by providing witnessstatements. The RSPB’s Investigations Unit, for example, frequentlyworks with the statutory enforcement authorities to apprehend thosewho break wildlife laws and to assist in the relevant criminalprosecutions.

The involvement of statutory consultees, which often includeenvironmental NGOs, is used in numerous planning processes in the

47

UK, e.g. Environmental Impact Assessment (Uncultivated Land andSemi natural Areas) (England) (Amendment) Regulations 2001. Inaddition, the RSPB’s expertise is often called upon by governmentwhilst drafting guidance, legislation and policy for nature conservationconcerns, as recently witnessed, for example, by the work done inpreparation for banning the wild bird trade in Europe.

124. The ELD approach is much more restricted than these regimes. Far frombeing an additional administrative burden, given a proper framework fortheir participation, environmental NGOs could ease the competentauthorities’ costs by assisting them in identifying real or threatenedenvironmental damage and requiring operators to take preventive orremedial measures, particularly as they are often in a better position toidentify actual or threatened environmental damage. In fact, the ELDregime and under it competent authorities could benefit from a muchgreater involvement of the relevant NGOs and their staff on the groundon the lines of the EIA Regulations mentioned above and on a muchwider basis, as the NGOs themselves would be carrying some of the coststhe authorities would otherwise be bearing. The RSPB, for example,owns 200 nature reserves throughout the UK, which means that we areideally placed through our staff in the reserves to identify situationswhere environmental damage under the ELD may be or has been caused.

125. Therefore, it would be preferable if the discretion under Article 12(5) forMember States to remove affected persons’ and environmental NGO’srights to request the competent authority to take action in cases ofimminent threat of damage and to be informed of the competentauthorities’ reaction, were not exercised and the right remained.

126. Of course, both in relation to NGO rights under Article 12 and anyfurther involvement of NGOs a proper framework would need to beestablished for their involvement.

127. QUESTION 4.5 (paragraph 4.21 4.23; page 47)Do you believe that the 30 year time limit of the ELD should be adopted orthat there should be no limit, in line with existing contaminated land andwater legislation?

128. The RSPB thinks that it makes sense to follow the approach taken inEnglish law and not to impose a 30 year long stop limitation period. Thiswould be in line with English contaminated land and water legislation, aswell as with tort law. Because of the long latency periods associated with

48

much environmental damage, this also makes sense from anenvironmental point of view. If anything limitation periods should runfrom the time damage is discovered, as is the case in general tort law.

129. QUESTION 4.6 (paragraph 4.27 4.28; page 49)What are your views on whether appeals, for the purposes of the ELD, shouldgo to, in England, the Secretary of State, in Wales, to the National Assemblyfor Wales, and in Northern Ireland to the Planning Appeals Commission?

130. The RSPB is in favour of appeals going to the Secretary of State.

131. QUESTION 4.7: (paragraph 4.27 4.28; page 49)What are your views on whether an appeal against a requirement to carry outremediation should suspend that requirement for the duration of the appeal?

132. The RSPB supports UKELA’s response to this question and considers thatthe Government would be in breach of the ELD if it suspended arequirement to carry out remediation during an appeal. See also,reasoning in relation to permit defence99 and strict liability above100.

133. QUESTION 4.8 (paragraph 4.32; page 50)What are your views on whether the Government should create criminaloffences where the operator fails to comply with a duty under the ELD?

134. The RSPB strongly supports the creation of criminal offences where theoperator fails to comply with a duty under the ELD. It is vital that suchoffences be created. The ELD does not have any real teeth as such andthere are no substantive provisions to help the authorities enforce itsprovisions, as it is a “self executing” Directive (as already mentioned). Inaddition, the creation of a criminal record works as an additionaldeterrent for companies who may otherwise postpone complying withthe Directive as long as possible without any serious consequences.

135. QUESTION 4.9 (paragraph 4.32; page 50)Are there any other additional offences that the Government should considercreating or circumstances where you consider criminal offences would beinappropriate (for example in relation to preventive measures)?

99 See para 108, Table 1 “Enforcement, costs and subsidiary state responsibility”100 See paras 60 - 64

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136. The removal of an operator’s licence (if applicable) may be a measureworth considering, although of course this might happen anyway once acriminal record was obtained.

137. QUESTION 4.10 (paragraph 4.32; page 50)Would it be preferable to give the competent authority powers to enforce anoperator’s duties under ELD by way of injunction?

138. If operators are not complying with the orders of a competent authorityto carry out preventive or remedial measures, it would make more sensefor the competent authority to carry out the necessary measures itself andthen pursue the operator for the re imbursement of its costs, as is its rightunder Article 8(2). An operator who does not comply with an authorityorder in the first instance, may not comply with an injunction either.

RSPBFebruary 2007

Sandy Luk, 23/11/05 i

Annex 1

Paper presented to Defra in January 2006

The Environmental Liability Directive –Background analysis of the main issues in relation to biodiversity

I Definitions

Most commentators on the ELD have expressed dissatisfaction with many ofits definitions. As far as biodiversity is concerned, several major issuesregarding the interpretation of relevant definitions arise. As it would beimpossible to discuss all the definitions and potential problems with theirinterpretation in the context of this analysis, the major issues from the RSPB’spoint of view are examined.

It is important in this context, to keep two points in mind:

Firstly, Article 16 of the ELD makes it possible for implementing legislation tobe more stringent and stricter than the ELD itself. This is crucial in situationswhere stricter national laws already exist, so that such laws are not weakenedby the implementing legislation and it can also be important in situationswhere the ELD shows certain weaknesses or gaps which it may make sense todeal with in the implementing legislation.

Secondly, Recital 5 of the ELD states:

“Concepts instrumental for the correct interpretation of the scheme provided for bythis Directive should be defined especially as regards the definition of environmentaldamage. When the concept in question derives from other relevantCommunity legislation, the same definition should be used so that commoncriteria can be used and uniform application promoted”. (Emphasis added).

This will be of fundamental importance to the following discussions, as manyof the concepts used in relation to biodiversity and biodiversity damage arethe same or similar to existing Community legislation, in particular to theHabitats Directive101 and the Wild Birds Directive102, as well as the EIA andSEADirectives103, which deal with environmental impact assessments.

101 Directive 92/43/EEC 102 Directive 79/409/EEC 103 Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment (the “EIA”) and Directive 2001/42/EC - the Strategic Environmental Assessment Directive (the “SEA”).

Sandy Luk, 23/11/05 ii

For ease of reference, this document refers to “biodiversity damage” insteadof damage to “protected species and natural habitats”, even though“biodiversity damage” is not a defined term under the ELD. In addition, itshould always be borne in mind that when this document or the ELD refer to“protected” biodiversity, it refers to the specific and restricted definition of“protected” biodiversity under the ELD (see above), not to what mayotherwise be considered protected biodiversity. Thus, under the Wild BirdsDirective and the Wildlife & Countryside Act 1981 all wild birds areprotected. Under the ELD this is not the case, so “protected” biodiversity inrelation to the ELD will not encompass all wild birds, for example.

II. The major issues

Issue 1: Biodiversity damage

The definition of “biodiversity damage” is obviously heavily based onconcepts used in the Habitats Directive:

The protected biodiversity itself, as seen above, broadly consists ofhabitats and species, as well as the habitats of species, protected under theHabitats and/or Wild Birds Directive. Note that the protection given bythe ELD does not refer to sites, but to the habitats and species listed in therelevant Directives.Both the concept of “significant effects” and that of “adverse effects” are usedin Article 6(3) of the Habitats Directive.“Favourable conservation status” has the same definition as in the HabitatsDirective.“[R]eaching and maintaining” favourable conservation status is very similarto the concept or maintaining or restoring, at favourable conservationstatus, which is also used in the Habitats Directive104.

Because of the similarities in wording, it seems obvious that the definitionof biodiversity damage under the ELD should be based on how Article6(3) of the Habitats Directive has been interpreted, especially as guidanceand case law exist in relation to it. Although this is a valid approach, anumber of shortcomings need to be addressed first:

Firstly, this is a complex exercise that shows that it is, if not impossible,then certainly cumbersome and not very useful from a practical point ofview, to simply try to transfer the meaning and interpretation of all the

104 Article 2(2)

Sandy Luk, 23/11/05 iii

constituent concepts under the Habitats Directive individually to theequivalent constituent concepts in the biodiversity definition in the ELD.

Secondly, and more importantly, Article 6(3) takes a purely site basedapproach, but the ELD covers protected biodiversity on and outsidedesignated sites, so any help to be gained from an examination of Article6(3) would at first sight only apply to protected biodiversity on designatedsites, and would possibly need to be extended to apply to protectedbiodiversity outside designated sites. This will be helpful at a later stage,but is not a sensible starting point for establishing biodiversity damage ingeneral.

Thirdly, although the ELD appears to lean mainly on the HabitatsDirective, it is also based on the Wild Birds Directive (see above).

In addition, as already mentioned, Member States also have the discretion toapply the ELD to equivalent nationally protected biodiversity.

Therefore, it is crucially important that the biodiversity definition in the ELDis interpreted in a way that properly encompasses all biodiversity protectedby the ELD (particularly relevant in relation to protected species under theBirds Directive where designated sites are just one of the special conservationmeasures required). It is also necessary to establish a practical way in whichto be able to apply the ELD’s test of having “significant adverse effects onreaching or maintaining favourable conservation status”.

What is the common thread?

It is possible to find a common benchmark in relation to the adverse effects onFCS, as well as the different types of protected biodiversity, by identifying thefundamental purpose of the relevant protections provided by the variouslaws, i.e. the purpose behind the protection of biodiversity:

The Wild Birds Directive requires Member States to take measures inrelation to maintenance and survival of a species, as well as preservationand diversity of its required habitats105.

The Habitats Directive aims to achieve through the concept of FCS“long term maintenance” in relation to both habitats and species106, as wellas stable or increasing (or non reducing) natural range and areas107.

105 Article 2 (“maintain the population of the [protected] species”), 3(1) ( “preserve, maintain or re-establish a sufficient diversity and area of habitats” ) and 3(2) (“ensure [the protected species’] survival and reproduction in their area of distribution”). See also Article 4(1) WBD.

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The Environmental Protection Act 1990108 refers to harm which “ affects anyspecies of special interest within that location and which endangers the long termmaintenance of the population of that species at that location109”.

BAP targets in relation to species and habitats are fundamentally aimed at“improv[ing] long term viability of habitats and species populations110”. Theyseek to do this by setting biological targets based on the extent andcondition of the biodiversity111.

In relation to Article 6(3) of the Habitats Directive, which, as alreadyshown, takes a site based approach, the “integrity of a site” has beendefined as a site’s ecological functions. “[A]dverse effects” on the “integrityof a site” therefore affect a site’s ecological functions. Obviously, ecologicalfunctions are relevant not only to designated sites, but to all protectedbiodiversity, especially all protected habitats. They are also linked to thelong term maintenance of protected habitats112.

“Favourable condition” (“FC”), the benchmark for nationally protectedbiodiversity on SSSI sites is achieved if a site has “maintained” its status113,so it also depends on maintenance of the protected interest.

These examples show that there is a common underlying aim in relation toboth the site based protection of biodiversity (see EPA definition andreferences to Article 6(3) and SSSIs) as well as protected biodiversity outsideprotected sites (all other examples). The Wild Birds Directive, in particular,takes a similar approach to the ELD by applying the same underlying aims toprotected biodiversity on and outside designated sites114.

The examples also show that it is the BAP approach of focusing on themaintenance and long term viability of habitats and species populations,which reveals the common measure for judging damage to protected

106 Article 1(e) and (i), Habitats Directive. 107It also talks about preventing effects “detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range” - see Article 16(1) Habitats Directive and Reg. 44(3)(b), Habitats Regulations. 108 Part IIA, Environmental Protect Act 1990 (“EPA”) and DETR Circular 2/2000 (the “Circular”) at Chapter A, Part 3, Annex 3 - Statutory Guidance on the Definition of Contaminated Land (the “Contaminated Land Guidance”). 109 At para A.23, Table A of the Contaminated Land Guidance 110 See “2005 BAP Targets Review – Lead Partner Guidance Note”, JNCC/BRIG at 2.1.1, 2.2.2.2(i) and 2.2.9. 111 ibid. At 2.2.2.2 and 3.2.2, Table 2 112 See Article 1(e), Habitats Directive 113 “A Statement on Common Standards Monitoring”, JNCC 1998, at para. 4.4 114 see last sentence of Article 4(4)

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biodiversity. This approach applies to protected biodiversity in general, on oroutside designated sites. FCS itself is basically a function of long termviability and maintenance115. FC in relation to SSSIs is expressed in terms ofmaintenance and conservation116 and, even though in the assessment of FClong term viability is not currently a factor that is expressly taken intoaccount, it is implicit in the underlying aim of “safeguard[ing], for present andfuture generations, the diversity and geographic range of habitats [and] species…”117:Conservation for future generations is only possible if the long term viabilityof the protected habitats and species is secure. Moreover, as seen above,maintenance and long term viability are the fundamental aims stated forpriority species and habitats under the BAP. Not only are many such specieslocated on SSSIs in any case [exact figures being researched], but the strategicaims of the BAP and SSSIs are similar and the BAP represents the country’scurrent biodiversity priorities (see also discussion below in relation to siteconservation objectives which discusses this point further).Therefore, if maintenance and long term viability are taken as a yard stick formeasuring biodiversity damage, it is possible to assess damage in relation toall protected biodiversity, on and outside designated areas, whether protectedunder national or EU legislation and, most importantly, without creating aconflict with the principle of FCS .

“Significant adverse effects”

Once it is established that environmental damage is defined by reference tothe “maintenance and long term viability of the protected biodiversity”, themeaning of “significant adverse effects” can be examined.

Because of the amount of experience, guidance and case law that exist inrelation to the meaning of “significant” and of “adverse effects”, it makes senseto go back to Article 6(3) of the Habitats Directive and examine whether itsprinciples can also be applied outside designated sites and in relation to theprinciple of “maintenance and long term viability of protected habitats and species”.

115 See Article 1(e) and (i), Habitats Directive 116 According to the JNCC, when biological SSSIs are being managed “in a way that maintains their nature conservation value, then they are said to be in ‘favourable condition.” (“Sites of Special Scientific Interest: Encouraging positive partnerships”, DEFRA Code of Guidance, 2003(the “DEFRA Code of Guidance”), para. 33.) Much of the language used in relation to SSSIs is expressed in “older” language relating to nature “conservation” etc., because much of the underlying guidance of SSSIs was produced before the Habitats Directive was passed or BAP came into being, e.g. the “Guidelines for selection of biological SSSIs”, which are still used today, were originally published by the Nature Conservancy Council in 1989, although they have of course been amended since then. 117DEFRA Code of Guidance, para 1

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“Significance” in Article 6(3) is linked to the undermining of a site’sconservation objectives118. Key indicators can be used to establish this119.“Adverse” effects are seen in terms of effects on the “integrity of the site”, whichis defined as the ecological functions of a site. “Adverse” effects on theintegrity of a site are effects on a site’s conservation objectives120.

In relation to sites, this means that both significance and adversity areultimately judged by reference to a site’s conservation objectives. However,in relation to protected biodiversity outside designated sites, these definitionscan also be applied. Instead of undermining a site’s conservation objectives,“significance” can be linked to undermining the overall aim of maintenanceand long term viability. After all, a Natura 2000 site’s conservation objectivesare or at any rate should be based on that aim. Key indicators are equallyrelevant to protected biodiversity outside designated sites.

Similarly, adverse effects on the integrity of a site can be examined in terms ofadverse effects in relation to the aim of maintenance and long term viability,informed in both cases by the impact on the ecological functions of theprotected biodiversity.

In both cases, these principles can also easily be extended from Community tonationally protected biodiversity.

Protected biodiversity on designated sites

As we have seen, maintenance and long term viability are an expression ofFCS. In relation to designated sites, it is possible to refine this approach evenfurther and link it to a site’s conservation objectives.

FCS is measured in terms of the territory of the relevant Member State or interms of the natural range of the habitat121. Annex I of the ELD says that anassessment can be made at local, regional and higher level includingCommunity level. In addition, case law supports the fact that an adverse

118 Case c-127/02, Llandlijke Vereniging tot Behoud van de Waddenzee, Nederlandse Vereniging tot Bescherming v Staatssecretaris van Landbouw, natuurbeheer en Visserij ,para 46 and 47 119 “Assessment of plans and projects significantly affecting Natura 2000 sites, Methodological guidance on the provisions of Article 6(3) and (4) of the Habitats Directive 92/43/EEC, European Commission, Environment DG, November 2001. (“Methodological Guidance”), p. 20., P. 62, Annex I, part 4, and see Commission Guidance on EIA Screening, June 2001, p.25 (and also pp. 22-24 for general information) 120 “Managing Natura 2000 Sites – The provisions of Article 6 of the ‘Habitats’ Directive 92/43/EEC””, the European Commission, 2000, p. 39 121 Article 1(e) and (i), Habitats Directive.

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effect at site level is relevant to ensuring FCS122. According to the “Guidelinesfor Developing Conservation Objectives for Marine SACs” published in 2001 byEnglish Nature in collaboration with the JNCC and a number of otherorganisations, each protected site

“must contribute to the achievement of favourable conservation status… Thereforeconservation objectives for individual sites must be expressed in a way that isconsistent with the goal of favourable conservation status123”

There is no reason why this would apply only to marine SACs and not also toland based SACs. Therefore, in relation to SACs, at least, there is, or at leastthere should be, no difference between a site’s conservation objectives and theaim of achieving FCS on a site, although in relation to SPAs, site conservationobjectives are merely the minimum requirement and additional measuresmay be necessary to achieve FCS (see also points made above in relation tothe Wild Birds Directive). Even in that case, though, the site conservationobjectives should be consistent with the goal of FCS and adverse effects on asite’s conservation objectives will also constitute adverse effects on FCS (andv.v.), as the aim of achieving FCS is or should be expressed through the siteconservation objectives. Similarly, at a national level, according to the JNCC,the conservation objectives of a SSSI site will define its FC124.

If in relation to designated sites, at least, both FCS and FC are expressedthrough a site’s conservation objectives and “significant adverse effects” are alsomeasured in terms of effects on conservation objectives, then it makes sense tointerpret “significant adverse effects on reaching or maintaining FCS” as meaningany effects that undermine a site’s conservation objectives. This appliesirrespective of the type of biodiversity protected on the site it could behabitats or species or both and it would include the habitats (even if notspecifically protected as such) of protected species, as stipulated by the ELD.It also applies to both national and Community designated sites.

Conclusion

This means that the definition of biodiversity damage under the ELD, i.e.“significant adverse effects on reaching and maintaining favourable conservationstatus” can be interpreted as any effect that undermines the maintenance and

122 The Royal Society for the Protection of Birds and Another v The Secretary of State for Scotland,First Division, Inner House, Court of Session (P27/14a/98) at para 32. 123 EN, SNH, CCW, EHS (DoE(NI)), JNCC & SAMS (2001). Guidelines for Developing Conservation Objectives for Marine SACs - Learning from the UK Marine SACs Project 1996-2001. Peterborough, English Nature, para 3.2, p. 24. 124 JNCC “Statement of Common Standards Monitoring”, at para. 4.3

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long term viability of the protected biodiversity. In relation to protected sites,this is measured in terms of whether the site’s conservation objectives areundermined by the damage. Thus, by identifying the principles underlyingFCS, FC and BAP, a practical approach to the ELD’s definition of biodiversitydamage is made possible, which can be effectively applied in practice, both bythe enforcing authorities and the affected companies (see also comments on“baseline condition” below).

Issue 2: Geographical/territorial level at which impact is measured

When it comes to the level at which an environmental impact has to have aneffect from a geographical/territorial point of view, there may be a differencebetween designated sites and protected biodiversity outside designated sites.

As already discussed, impacts on a designated site need to be measured at sitelevel – the site conservation objectives are an expression of FCS applied at thelevel of that particular site.

However, in relation to protected biodiversity outside protected sites, noassessments of the contribution of the particular biodiversity to FCS has beencarried out – there are no local conservation objectives giving expression toFCS at a higher level. Therefore, it may not be possible to measure effects atsite level, and it will be necessary to determine the appropriate level at whichthis should be done on the basis of the underlying facts and circumstances, beit at local (or where appropriate, regional, national or even EU) level125, takinginto account the natural range of the biodiversity in question and the relevanteffects on maintenance and long term viability of the biodiversity in question.

Issue 3: The inclusion of nationally designated biodiversity

The ELD provides that equivalent nationally protected biodiversity can alsobe brought within the application of the ELD provisions126.

There are two obvious potential candidates for inclusion: SSSIs and BAPpriority habitats and species127. In future, areas designated under a newMarine Act may also be a possibility.

125 As is clearly the intention of the ELD – see Annex I. 126 Article 2(3)(c) 127 Other species that are given protection under Part I of the WCA could also conceivably be suggested, but this would add greatly to the complexity of the legislation, make it harder to enforce and only add marginal benefits from an environmental point of view.

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The underlying purpose of the provisions of the Habitats and the Wild BirdsDirectives is the same as the purpose behind the designation of biologicalSSSIs and BAP habitats and species, so both SSSIs and BAP priority speciesand habitats could come within Article 2(3)(c) of the ELD. Additionalanalysis of this has been carried out by the RSPB and can be made available ifrequired.

SSSIs

NB: any reference to SSSI should be read as a reference to a biological SSSI.

Adding SSSIs to the ELD implementing legislation would make sense for avariety of reasons:

It would benefit wildlife conservation.Many of the SSSIs are SACs or SPAs in any event: For example, only 22%of the area of biological SSSI in England and 20% in Scotland is outside ofthe Natura 2000 network)128.Common Standards Monitoring exists in relation to SSSIs and SPAs andSACs, so it would aid consistency to include all three under the provisionsof the ELD.It would ensure consistency and certainty in general – it is confusing andunfair for an operator who causes damage to a Natura 2000 site to becaught by the provisions of the ELD, but to be free from liability if thesame damage is caused in a neighbouring SSSI which does not haveNatura 2000 status.Including SSSIs in the ELD implementing legislation could help theGovernment to achieve its Public Service Agreement target that 95% ofSSSIs should be in favourable condition or unfavourable but recoveringcondition by 2010.

As already seen, SSSIs are governed by different conservation parameters andstandards than SACs/SPAs. The condition of SACs and SPAs is measured byrelevance to FCS. The standard by which SSSIs are judged is FC.

However, it has already been established that the underlying principle inrelation to biodiversity damage relates to the maintenance and long termviability of the biodiversity in question. As seen, this applies or should applyequally to nationally and EU protected biodiversity. It has also beenestablished that in relation to designated sites, this is or should be linked toconservation objectives for both SSSIs and SACs/SPAs.

128 based on data supplied by EN and SNH in November 2005)

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This link to conservation objectives is particularly helpful in relation to SSSIs,as it removes the need to examine in detail the distinctions and relationshipbetween FC and FCS.

In any case, as already seen, the vast majority of SSSIs are also designated asSACs/SPAs anyway. For these SSSIs, establishing the ELD threshold shouldpose no additional problems. Including SSSIs also has the advantage that thebiodiversity covered is purely site based and it is therefore easier to assessbaseline conditions, as well as the actual damage caused. Therefore, it wouldmake sense to include SSSIs in the implementing legislation.

BAP species and habitats

There seems to be significantly more opposition, especially from industry, tothe inclusion of BAP priority species and habitats129 in the ELD implementinglegislation than to the inclusion of SSSIs. Yet, from an environmental point ofview, there is no logical reason why this should be the case:

The BAP has the same fundamental objectives as wildlife conservationlegislation. Drawn from the priorities in the UK Biodiversity Action Plan,the species and habitats of importance are identified for England andWales under Section 74 of the Countryside and Rights of Way Act 2000,and in Scotland under Section 2(4) of the Nature Conservation (Scotland)Act 2004.Most of the reasons for including SSSIs also apply to BAP species andhabitats.The Government has committed to the recovery of BAP priority speciesand habitats, setting targets and reviews.The BAP provides the only up to date reflection of British biodiversitypriorities.There is a three yearly reporting commitment under the BAP, whichmeans that there is or will be a certain supply of baseline condition data.Therefore, it will be easier to prove the extent of biodiversity damagecaused and to ascertain the appropriate remedial measures. Thisimproves legal certainty and the ability to assess risks for companies.The BAP has defined conservation objectives for priority habitats andspecies, which means that there will also be sufficient information ontargets and objectives for the protected biodiversity in question (i.e. theequivalent of FCS) when it comes to establishing biodiversity damage.

129 The priority habitats and species identified in the Government’s British Biodiversity Action Plan under section 74 of the Wildlife & Countryside Act 1981.

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Many of the BAP priority species and habitats are also protected interestson SSSIs, SACs or SPAs. In fact, the availability of baseline condition dataand the ability to assess risk more precisely in relation to BAP priorityhabitats and species, will automatically improve the ability to establishbiodiversity damage and ascertain remedial measures in relation to SSSIs,SPAs and SACs which host BAP priority habitats and species.

As in the case of SSSIs, if BAP priority habitats and species are included in theELD implementing legislation, it will need to be established how thebiodiversity definition of the ELD is to be interpreted in relation to the BAPspecies and habitats. Obviously, the protection of BAP species and habitats isnot site based as for SSSIs. However, as already shown above, thefundamental and underlying aim of the BAP targets is to “improve the longterm viability of habitats and species populations130”. Moreover, the objectives forBAP priority habitats and species are measured by reference to a range oftargets which include good condition, maintaining extent, restoration andexpansion for habitats and achieving an increase in range and population sizefor species131. Therefore, if it is accepted that biodiversity damage under theELD impacts on maintenance and long term viability of the protectedbiodiversity, it will be relatively simple to establish biodiversity damageunder the ELD definition to BAP priority habitats and species, as the BAPregime uses these concepts as a measure for the state of the relevantbiodiversity in any case. There is good baseline condition data for many ofthe species and habitats, as well as data on maintenance and viability targets.Therefore, it seems self evident that the BAP priority habitats and speciesshould be included in the ELD implementing legislation.

Future protected marine areas

Any areas protected in the future Marine Bill/Act, will almost certainly satisfythe conditions set out above and should therefore also fall under the ELDrules.

Ramsar sites

It is assumed that Ramsar sites will be treated as Natura 2000 sites due to theGovernment’s relevant policy commitment in this area132. This especiallymakes sense as there is an extensive overlap between Ramsar and Natura

130 id. E.g. at para.s 1.3.6, 2.1.1 and 2.2.2.2(i) 131 see “Lead Partner Guidance Note – 2005 BAP Targets Review”, BRIG/JNCC, September 2004 at paras 3.2 and 3.3. 132 “Ramsar sites in England – A policy statement”, Michael Meacher, November 2000, para 10 and PPG 9.

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2000 sites and there are not many Ramsar sites that are not also Natura 2000sites.

Issue 4: The meaning of “damage”

Examining the Habitats Directive and other EU nature conservationlegislation provides no further guidance in relation to the meaning of thedefinition under Article 2(2) of the ELD. UK legislation is of no furtherassistance either. Presumably what “adverse change” amounts to is to beconsidered as a question of fact. In fact, “adverse change” is referred to in apractical context in conservation literature133. It is likely that this was also theintention of the European Commission when it proposed this language in theELD. A background paper to the Commission’s White Paper onEnvironmental Liability prepared by Edward Brans of the ErasmusUniversity in Rotterdam in 1997134 appears to confirm this. Brans uses asystem of key factors to determine “measurable adverse change” which are nonexclusive and need to be applied on a case by case basis. Therefore, thedefinition of “damage” in the ELD needs to be applied in a practical contextand on a case by case basis, using a number of key factors where appropriate.

Issue 5: The meaning of “baseline condition”

Although existing legislation at EU and UK level uses concepts similar to thatof “baseline condition” in relation to remediation standards, none of theexisting standards appear to be particularly helpful in relation to the issuesraised by the ELD definition of “baseline condition”, in particular in relation tothe protected biodiversity135.

The main issue that will arise in relation to “baseline condition” will be how toestablish what the conditions would have been had the damage not occurred.This will necessarily be a practical question. The ability to ascertain the likelycondition of the relevant biodiversity at or just before the damaging event willbe crucial. The ELD itself says that establishing the “baseline condition” of thebiodiversity in question should be based on the use of the “best informationavailable”. Completely accurate information may not be obtainable andalternative approaches for finding the relevant reliable information may benecessary.

133 e.g. Monitoring Allis and Twaite Shad - Conserving Natura 2000 Rivers Monitoring Series No. 3(RJ Hillman, Environment Agency and IG Cowx & J Harvey International Fisheries Institute, University of Hull) 134 Background Paper for EU White Paper on Environmental Liability - Liability for Damage to Natural Resources, E.H. P. Brans, 17 September 1997 135 Id.

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Establishing baseline conditions will thus depend on

actual information available on the status of the biodiversity at a givenpoint before the damage took place (as close in time as possible to thedamaging event);information available in relation to equivalent biodiversity at a differentlocation at the time the damage took place;information available in relation to equivalent biodiversity at a differenttime, but in a similar state to the one the protected biodiversity wouldhave been in, had the damage not taken place;ability to use this information to predict what the status of biodiversitywould have been, had the damage not taken place.

Such information is available, for example in the form of:

JNCC Common Standards Monitoring DataCountryside SurveysUK BAP reportsNatura 2000 monitoring informationBreeding Bird AtlasWintering Bird AtlasLocal Biological Record Centre recordsScarce breeding bird surveys (SCARRABS)Wetland Bird SurveysBreeding Bird Survey

In fact, a report prepared by ETC/NPB and JNCC identifies around 88different UK biodiversity monitoring programmes136. Increasingly, access tomany datasets will be possible through the National Biodiversity Network.

In any case, the focus of restoration and compensation should be on theunderlying goals, i.e. reaching and maintaining favourable conservationstatus/achieving a site’s conservation objectives/ensuring the maintenanceand long term viability of the protected biodiversity, so if baseline data is notavailable, but it is possible to carry out restoration measures which help thesite/species on its way back to achieving those goals, then on a practical leveland from an environmental point of view, that would be sufficient, withoutthe need to establish the exact baseline conditions.

136 “Questionnaire on UK biodiversity monitoring programmes - Prepared for the European Environment Agency’s Topic Centre on Nature Protection and Biodiversity (ETC/NPB) and Prepared by the Joint Nature Conservation Committee, UK”, November 2003

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If such an approach is taken, sufficient data should be available in most cases,without the need to incur unreasonable costs in trying to find the relevantinformation. To help affected companies it may be worth providingadditional guidance, which could, for example, contain a list of sources ofinformation in relation to different protected species and habitat types.

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Annex 2

Paper presented to Defra in January 2006

The Environmental Liability Directive –Background analysis of the main issues in relation to water

I. Definitions

Most commentators on the Environmental Liability Directive (“ELD”)137 haveexpressed dissatisfaction with many of its definitions. As far as water isconcerned, a number of major issues regarding the interpretation of relevantdefinitions arise. As it would be impossible to discuss all the definitions andpotential problems with their interpretation in the context of this analysis,only the major water related issues from the RSPB’s point of view areexamined below.

It is important in this context, to keep two points in mind:

Firstly, Article 16 of the ELD makes it possible for the implementinglegislation to be more stringent and stricter than the ELD itself. This is crucialin situations where stricter national laws already exist, so that such laws arenot weakened by the implementing legislation and it can also be important insituations where the ELD shows certain weaknesses or gaps which it maymake sense to deal with in the implementing legislation.

Secondly, Recital 5 of the ELD states:

“Concepts instrumental for the correct interpretation of the scheme provided for bythis Directive should be defined especially as regards the definition of environmentaldamage. When the concept in question derives from other relevantCommunity legislation, the same definition should be used so that commoncriteria can be used and uniform application promoted”.

This will be of fundamental importance to the following discussions, as waterdamage in the ELD is defined by reference to Directive 2000/60/EC (the“Water Framework Directive” or “WFD”). Moreover, some concepts used inother Community legislation, in particular Directive 92/43/EEC of 21 May1992 on the conservation of natural habitats and of wild fauna and flora (the“Habitats Directive”) and Directive 79/409/EEC of 2 April 1979 on the

137 the European Directive (2004/35/CE) on Environmental Liability with regard to the Prevention and Remedying of Environmental Damage

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conservation of wild birds (the “Wild Birds Directive”) are relevant to waterdamage.

II. The major issues

Issue 1: Implementation under the WFD and Annex III activities

The implementation timetable of the WFD

The ELD deadline for implementation into national law is 30 April 2007 inrelation to the entirety of its provisions. As already shown, both thedefinition of water and of water damage and some of the activities listed inAnnex III of the ELD, make reference to provisions of or concepts used in theWFD.

This causes certain problems where the relevant parts of the WFD referred towill not be operational by the time the ELD implementing legislation entersinto force.

If this problem is not addressed, then the implementing legislation will not beof any practical value in relation to water damage, as it will depend onconcepts and activities, which do not yet exist.

The main examples of this are:

the inclusion of activities in Annex III relating to the discharge or injectionof pollutants into surface water or groundwater which require a permit,authorisation or registration in pursuance of the WFD138 (see Issue 2below);the inclusion of activities in Annex III relating to water abstraction andimpoundment of water subject to prior authorisation in pursuance of theWFD139 (see Issue 2 below);the link between the ELD definition of water damage and water status, asdefined in the WFD: the gathering and analysis of data to determine waterstatus will not be finalised until December 2009;the link between the ELD definition of water damage and water bodies, asdefined in the WFD: the process of determining each river basin area’swater bodies is ongoing and not complete;it is unclear when the objectiveof “no deterioration” under the WFD starts.

138 point 5, Annex III 139 point 6, Annex III

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Annex III activities

Companies can only be liable for water damage under the ELD, if they carryout an Annex III activity.

Only a very few activities directly linked to water damage are actually listedin Annex III. These include activities subject to water discharge permitsunder the Dangerous Substances and the Groundwater Directives140. Theyalso include activities subject to water discharge permits and abstraction andimpoundment licenses under the Water Framework Directive141.

A number of serious issues arise:

The programmes of measures relating to the licenses under the WFD arerequired to be made operational at the latest by 2012. Until they are madeoperational, the relevant activities will only fall within the ELD, if they aresubject to any of the other instruments listed in Annex III.In the meantime, the only activities listed in Annex III in relation to waterare the Dangerous Substances and the Groundwater Directives (seeabove). However, the activities covered in these two Directives are not aswide ranging as the activities covered either by the Water Resources Act1991 (the “WRA”) in the UK or by the discharges or injection of pollutantsor water abstraction and impoundment activities covered by the WFD infuture. For example, the Dangerous Substances Directive only coversdischarges of the relevant listed substances into surface waters, but notwater pollution caused by other substances, which would be covered bythe WRA.Annex III does not cover the full extent of the activities regulated by theWFD. Navigation, port construction and flood defence engineering, forexample, are not covered by the ELD, even though they can lead to seriouswater damage. However, unless these activities are seen to be implicit inAnnex III, in which case clarification of this point is necessary in theimplementing legislation and/or guidance, this is probably not so much apoint for the national implementation exercise in relation to the ELD, butfor the Commission’s review of the ELD (and Annex III).Similarly, a number of other relevant EC Directives in relation to water arenot listed in Annex III, e.g. the Urban Waste Water Treatment Directive142

140 Directives 76/464/EEC and 80/68/EEC. 141 Directive 2000/60/EEC 142 Directive 91/217/EEC

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(“UWWTD”) and the Sewage Sludge Treatment Directive143, although theCommission has argued that the UWWTD is covered by virtue of thereferences in Annex III to the WFD. Clarification of this point in the formof express provisions in the implementing legislation or in the form ofguidance is necessary.The ELD contains an additional discretion for Member States to excludethe spreading of sewage sludge on agricultural land from the scope ofAnnex III activities. It is difficult to see any environmental justification forthis in that there is no obvious difference in environmental impact termsbetween the spreading of sewage sludge and other “dangerous” activitieslisted in Annex III.

Therefore, because of the differences in implementation time limits and therestricted list of water related Directives and WFD governed activitiescontained in Annex III of the ELD, there will be significant gaps in theprotective provisions of the ELD relating to water damage.

This is not only illogical and detrimental from an environmental point ofview, it is also confusing and patently unfair to operators who may end upbeing liable under the ELD if they fall within certain sectors (e.g. IPPC) or ifthey cause certain types of water damage, e.g. groundwater damage, but willescape liability if they operate in a different sector or cause a different type ofwater damage, e.g. through flood defence operations.

Therefore, it is crucial that the ELD implementing legislation in the UKprovides a fair regime that is consistent with existing laws and that does notleave significant gaps in relation to water damage, either in time or in scope,particularly in relation to the implementation timetable of the WFD. Thismeans that the activities caught should cover at the very least all discharges,abstraction and impoundment controlled under the WRA, the GroundwaterRegulations 1998, the Land Drainage Act 1991 and the Water Act 2003 untilthe relevant replacing provisions of the WFD come into force; and to theextent that the relevant replacing regulations of the WFD do not cover all suchdischarges abstractions and impoundments these activities should continue tobe caught.

143 Directive 86/278/EEC, also not included are the Bathing Water Directive (76/160/EEC); the EC Directive on the Quality of Fresh Waters Needing Protection or Improvement to Support Fish Life(78/659/EEC) and the EC Directive on the Quality Required of Shellfish Waters (79/923/EEC).

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Issue 2: Water Damage

The ELD applies to all waters covered by the WFD. This is broadlyequivalent to what is covered by the definition of “controlled waters” under theWater Resources Act 1991 (“WRA”)144 and is a fair definition of “waters” forthe purposes of the ELD.

However, although the definition of “waters” is a wide one, the ELD’sapplication is severely restricted by virtue of the definition of “water damage”.Water damage in the ELD is identified by means of adverse effects ondifferent types of water “status” as defined in the WFD. Status in the WFD ismeasured only in relation to water bodies, not “waters” as such. Annex 2 ofthe WFD provides a typology system for defining water bodies that includesguidance on minimum size145. So far, the UK Government has taken aminimalist approach, adopting the 50ha size limit for lakes and 10km2

catchment threshold for rivers, as set out in Annex 2 of the WFD. This meansthat many lakes and small water bodies, such as upland streams and ponds,which may be of high environmental significance, would seem not to becovered by the definition of water damage in the ELD, even though they fallwithin the definition of “waters”.

This is a severe limitation to a law that aims to deal with liability for allenvironmental damage. Neither the provisions relating to biodiversity, northose relating to land impose a size limitation in addition to the usual damagethresholds.

It is also worth noting that the status of water bodies under the WFD will notbe determined until 2009, so that there will be a delay before the informationrequired for satisfying the definition of water damage contained in the ELDcan actually be provided. It would be possible to deal with this problem byintroducing a wider definition of “environmental damage” in the ELDimplementing legislation.

DEFRA in various papers, including an issues paper of July 2004146 andquestions and issues paper for consideration for public consultation147, hassuggested the possibility of referring to the

144 although some differences exist, e.g. in relation to width of territorial waters covered and definition of coastal waters, see section 104(1) and 221, WRA 145 rivers: min. size of 10 – 100 km² (Annex 2, point 1.2.1) and lakes: 0.5 – 1 km² (Annex 2, point 1.2.2) 146 “Environmental Liability Directive: Issues paper to guide discussions in pre-first consultation industrial sector workshops”, DEFRA 23 July 2004, point C3 147 “Environmental Liability Directive: Questions/Issues for Consideration (for Public Consultation)”,DEFRA, IX 2005, part III. Water Damage, paras 21 and 22.

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“’significant pollution of controlled waters’ (if this were defined so as to includeeffects on ecological systems148)”; or“significant pollution of controlled waters” with an appropriate threshold149”

This seems to indicate a move away from determining water damage byreference to WFD status. However, pollution is a much narrower conceptthan “water damage”, which could have physical and morphological causes,as well as consist of “classical” pollution. Including the “effects on ecologicalsystems” does not adequately deal with this problem. In stakeholderconsultation workshops, it has been said that the concept of “significantpollution” also encompasses physical and morphological damage, but this isnot borne out by the wording used in the legislation (entry into controlledwaters of poisonous, noxious and polluting substances). This approach, iftaken, would not comply adequately with the ELD and would mean that theELD would not have been properly implemented. Therefore, simply relyingon the WRA or on the definition of water pollution under the EnvironmentalProtection Act 1990 (“EPA”) 150 will not be sufficient.

Another approach worth examining here is that used in the Water Act 2003(the “Water Act”), which in relation to abstraction licence variations andrevocations requires the protection of waters from “serious damage151”.

The concept of serious damage suggests monitoring of outcomes and couldencompass the full range of pressures that might impact the waterenvironment, not just pollution. This would therefore deal with the problemsencountered by simply measuring water damage in terms of significantpollution of controlled waters or in terms of effects on water bodies and theconnected size restrictions imposed through the link to WFD status. Ofcourse, it would be necessary to ensure that all status related damage was alsocovered. However, neither “serious” nor “damage” have been defined and arecent Environment Agency consultation on the issue suggests that differentthresholds may be used depending on which part of the Water Act are beingapplied.

148 “Environmental Liability Directive: Issues paper to guide discussions in pre-first consultation industrial sector workshops”, DEFRA 23 July 2004, point C3 149 149 “Environmental Liability Directive: Questions/Issues for Consideration (for Public Consultation)”, DEFRA, IX 2005, part III. Water Damage, para 22. 150 Part IIA of the Environmental Protection Act 1990 (“EPA”) and DETR Circular 2/2000 “Contaminated Land: Implementation of Part IIA of the Environmental Protection Act 1990” (the “Contaminated Land Guidance”). Here, section 78A(20), EPA 151 Section 27, Water Act 2003 (the “Water Act”)

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Possible solutions:

define “water damage” as “serious damage”152, as long as this does notweaken ELD requirements in other ways;use the concept of “significant pollution of controlled waters”, but make surethat it applies not only to ecological, but also to morphological andphysical damage.

More guidance is necessary on the meaning of the term serious damage if thefirst approach is to be taken.

In both cases, this may only be an interim solution, as a definition strictlylinked to WFD status may be applied once the relevant water bodies havebeen established. However, it would still need to be ensured that smaller, butenvironmentally significant bodies of water were not excluded.

Issue 3: Territory covered

The territorial limit of the application of the WFD is 1 nautical mile from thebaseline from which the territorial sea is measured (except as regardstransitional waters going beyond that limit and/or chemical status, where thelimit would be the width of the territorial waters – 12 nautical miles – seeArticle 2(1) WFD153).

The transposition regulations for England, Wales and Northern Ireland followthe exact requirements of the WFD, however in Scotland the implementinglegislation154 extends coastal water bodies out to 3nm.

Given that these water bodies will be the legal entities against which statuswill be reported in the WFD River Basin Management Plans, it would appearthat the application of the ELD in relation to water damage will be 1 nauticalmile in the UK, except in Scotland where it will reach out to 3 nautical miles.

After a High Court ruling in 1999155, the Government has confirmed that theHabitats Directive and Habitats Regulations156 and consequently also the WildBirds Directive should apply to the Continental Shelf (up to a limit of 200nautical miles from the baseline from which the territorial sea is measured).

152 As used in section 27 of the Water Act 2003 153 “Surface water” means ... coastal waters, except in respect of chemical status for which it shall also include territorial waters.” 154 Water Environment and Water Services Act (2003)155 R-v-Secretary of State for Trade and Industry ex parte Greenpeace [2000] 2 CMLR 94156 The Conservation (Natural Habitats &) Regulations 1994 which implement the Habitats Directive

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This means that in relation to biodiversity damage, the ELD would extend tothe edge of the UK Continental Shelf, but in relation to water damage thelimit would be 1 nautical mile from baseline in England, Wales and NorthernIreland, and 3nautical miles in Scotland.

Extending the application of the WFD to encompass the Continental Shelf isnot feasible or sensible. In any case, a future Marine Framework Directive isplanned in this context.

However, the law in relation to the territorial boundaries of biodiversitydamage should remain (i.e. application across the Continental Shelf), subjectto the ELD’s rules on international maritime conventions.

Issue 4: Remediation

Remediation (together with prevention) is one of the twin aims of the ELD.The provisions on restoration are central to the effectiveness of the ELD inpractice. However, they have been criticised by industry and insurers asbeing impracticable and too vague.

Annex II of the ELD deals with the remedying of biodiversity and waterdamage and stipulates restoration to baseline condition by way of primary,complementary and compensatory remediation. Compensatory remediationincludes compensation for interim losses.

In the UK, the law that primarily deals with water pollution is the WRA. Thecontaminated land provisions of the EPA also contain provisions on waterpollution.

Anybody in breach of the water pollution provisions under Part 3, Chapter IIof the WRA, e.g. anybody who causes or knowingly permits “poisonous,noxious or polluting matter or any solid waste matter” to enter any controlledwaters without or in breach of a permit, is guilty of an offence and is liable tocriminal penalties, but may also be required to (i) undertake works for thepurpose of157; or (ii) pay for the reasonable expenses incurred by thecompetent authority158 for the purpose of:

removing or disposing of the matter;remedying or mitigating any pollution caused by its presence in the waters; or

157 Section 161A WRA 158 Section 161(3), WRA

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so far as it is reasonably practicable to do so, of restoring the waters, includingany flora and fauna dependent on the aquatic environment of the waters, to theirstate immediately before the matter became present in the waters159.

This third bullet point therefore includes ecological restoration and restockingof rivers.

Under the Contaminated Land Regime of the Part IIA EPA 1990 remediationof water includes

the doing of any works, the carrying out of any operations or the taking ofany steps in relation to any … [controlled] waters for the purpose

(i) of preventing or minimising, or remedying or mitigating the effects of …any pollution of controlled waters, by reason of which the contaminatedland is such land…; or

(ii) of restoring the … waters to their former state”160.

As already discussed above (see Issue 2) there is a difference in when andhow the ELD and these two UK regimes apply to water damage. In the UK,experience in relation to remedying water pollution already exists. Given theproblems a strict link to the WFD provisions creates (again see Issue 2 above),and in the interests of consistency, it would make sense, where this isappropriate, to base the assessment of environmental damage and itsrestoration on existing experience under the WRA and, if applicable, underthe Contaminated Land Regime. However since this will only assist inaddressing the issue of pollution of controlled waters and since the ELD sregulation of water damage goes wider than just pollution, obviously, a widerapproach will be necessary for water damage that is not covered by theexisting pollution based UK legislation, e.g. in relation to morphologicalaspects.

Obviously new concepts from the ELD, such as the idea of interim losses,must be incorporated into the existing rules.

Issue 5: Baseline condition

The meaning of “baseline condition” is important in the context of waterdamage because restoration under the provisions of Annex II of the Directiveis to be carried out to the standard of the baseline condition of the resource inquestion. This includes water damage.

159 Section 161(1)(b), WRA 1991 160 Section 78A(7)(b)

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Establishing baseline condition is a potentially complex question of fact. Asthe WFD introduces a monitoring system in relation to surface water status161,groundwater status and protected areas, the relevant data to establishbaseline condition should be relatively easy to access once the WFD has beenfully implemented and the monitoring requirements are being complied with.However, other available information, especially during the period beforeWFD data is accumulated, should also be used, e.g. data relating to the“General Quality Assessment” (“GQA”) of rivers carried out by theEnvironment Agency, SSSI monitoring data, drinking water intakemonitoring etc. Therefore, it would make sense to use any available data,including, but not restricted to WFD monitoring data, to establish “baselineconditions”.

161 Article 8, WFD