Environmental Liability Directive: Meeting the threshold of ‘water damage’

Caroline Fielder Senior Legal Advisor 16 January 2013

Overview

Environment Agency’s role Definition of ‘water damage’ A case study: Three Pools waterway (ELD) Other ‘candidate’ cases Summary of key points

Environment Agency’s role in implementing the ELD

Environmental Damage (Prevention and Remediation) Regulations 2009 (‘EDR’) England and Wales Enforcing authority for all water damage Also enforcing authority for biodiversity damage in inland waters, and other damage where we authorised the activity

Definition of ‘Water Damage’

ELD, Art. 2(1)(b): ‘water damage...is any damage that significantly

adversely affects the ecological, chemical and/or quantitative status and/or ecological potential, as defined in [the Water Framework Directive] of the waters concerned...’ EDR, Reg. 4(3) & (4): ‘environmental damage to surface water’ and ‘environmental damage to groundwater’

‘Environmental Damage to Surface Water’ Reg. 4(3)

Damage to a surface water body, such that (a) a biological quality element listed in Annex V

WFD (b) the level of a chemical listed in [WFD annexes], or (c) a physicochemical quality element listed in Annex

V WFD changes sufficiently to lower the status of the

water body in accordance with the Water Framework Directive (whether or not the water body is in fact reclassified as being of lower status).

‘Environmental Damage to Surface Water’ (Government Guidance) Excludes ‘short-term, transient adverse effects from which the affected water body recovers without the need for remediation measures’ Excludes pollution with a limited geographical extent To be assessed in accordance with the Water Framework Directive

Case Study: Three Pools Waterway July 2009, North West Region Water company (United Utilities) Due to a mechanical failure, raw sewage effluent was discharged for several hours from a pumping station into the Three Pools waterway... Over 6,000 fish were killed...

Three Pools (contd.) How did we estimate how many fish were killed?

Good baseline data from a fisheries stock assessment carried out 2 months before the incident Dead fish removed and weighed > calculated approximate number of dead fish removed Good data from a fisheries stock assessment carried out shortly after the incident (after clean-up, before restocking)

Three Pools (continued)

Heavily modified water body > ‘ecological potential’

‘Ecological potential’ is determined in relation to the chemical, physiochemical and biological quality elements The element with the lowest classification determines the overall status of the water body

Before the incident: This water body was classified as having ‘Moderate Ecological Potential’ overall (as its physiochemical quality was ‘moderate’)...but the biological quality element was ‘Good’

Three Pools (continued)

After the incident: One biological quality element (composition, abundance and age structure of fish present within the water body) was no longer ‘good’ – it had been reduced to at least ‘poor’ Short-term, transient effect? No. Fish stocks would have taken 8 or 9 years to recover naturally Spatial /geographical extent? Yes. Affected a 5km stretch of a 17km water body

Three Pools (continued)

The operator of the sewage treatment works had caused environmental damage to surface water This was a relatively straightforward case:

Clear drop in status from ‘good’ to ‘poor’ Good quality data (before and after incident) Operator co-operated throughout

But still took time and resource to establish ‘water damage’ In the meantime we used other legal powers to restock fish and recover our costs

Three Pools - Remediation

Primary remediation: restocking fish > back to baseline condition

Interim loss: loss of services to anglers while fish grow to specimen size until services are fully restored (several years)

Compensatory remediation:

Habitat improvements: installing coir rolls pre-planted with native reeds into the riverbanks to increase fish stocks

Access improvements: installing fish pegs to improve access and safety for anglers

Three Pools: Compensatory Remediation

Three Pools: Compensatory remediation

Other ‘candidate’ cases

Other cases that have not met the threshold of ‘water damage’ include:

Tyre fires (firewater run-off) Spillage of red diesel into an estuary Spillage of solvents into an estuary

Most cases are clear-cut: no significant adverse effect on status because:

pollutants rapidly dispersed naturally prompt action was taken by operators to contain pollution, and/or geographical extent of impact was limited

Other ‘candidate’ cases (continued)

A small number of cases were more ‘borderline’: poor condition/status of water body prior to incident less available data at the time ongoing damage that started before the ELD (temporal application)

Operator still liable to prosecution and clean-up costs under water pollution legislation:

lower threshold of damage return to baseline condition but no compensatory remediation

Summary of Key Points (1) ELD applies to the most serious cases of damage to water One such case so far (Three Pools)

Threshold clearly applied Good quality data (before and after incident) Clear drop in status Effect of ELD applying: Additional ‘compensatory’ remediation

Other cases did not meet the ELD threshold Most were clearly not ‘water damage’ (e.g. rapid dilution) A few were more ‘borderline’ water body was already ‘poor’ quality (+ less available data) damage started before ELD applied

Summary of Key Points (2) Operators still liable for remediation under other legislation

Lower threshold of damage Return to baseline condition Cost recovery But no compensatory remediation

The threshold for ELD ‘water damage’ is appropriate Only the most serious incidents Additional ‘compensatory’ remediation

Meeting the challenge of applying the threshold in practice Data and methods are improving Learning from experience and sharing information

Thank you