Environmental Liability Directive: Meeting the threshold of water damage. Caroline Fielder Senior Legal Advisor 16 January 2013

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1 Environmental Liability Directive: Meeting the threshold of water damage Caroline Fielder Senior Legal Advisor 16 January 2013

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

3 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

4 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

5 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).

6 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

7 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...

8 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)

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11 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

12 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

13 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

14 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

15 Three Pools: Compensatory Remediation

16 Three Pools: Compensatory remediation

17 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

18 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

19 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

20 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

21 Thank you

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