Richard North, 03/01/2016  

In March 2014, of the floods in Somerset, Booker and I wrote:
They were deliberately brought about by a fundamental shift in flood management policy, shaped by EU directives and enforced by the Environment Agency, which in certain areas of the country, notably the Levels, put the interests of wildlife and "biodiversity" above those of people and property.
That is a fair statement, and one I stand by. The main cause of the extent and duration of the flooding over the winter of 2013-14 was the deliberate, early-season flooding of Southlake Moor, under the aegis of the Habitats Directive, as part of the UK commitment to meeting the Natura 2000 quota for "restoring" wetlands.

Months of intensive research enabled us to say that with confidence, having set out the details in a comprehensive report covering the legal and historical background.

But that report applied to Somerset and therefore, without careful exploration of the issues in their specific local circumstances, I would not have been prepared to assert - as has author and former sheep farmer Philip Walling claimed – that a significant cause of the current floods has been "the almost complete cessation of dredging of our rivers since we were required to accept the European Water Framework Directive (EWF) into UK law in 2000".

Walling declares that, last century, the obligation to dredge out the rivers was transferred to local river boards, consisting of farmers and landowners who knew the area and its characteristics, and who had statutory responsibilities to prevent or minimise flooding. He then goes on to assert:
But all this changed with the creation of the Environment Agency in 1997 and when we adopted the European Water Framework Directive in 2000. No longer were the authorities charged with a duty to prevent flooding. Instead, the emphasis shifted, in an astonishing reversal of policy, to a primary obligation to achieve "good ecological status" for our national rivers. This is defined as being as close as possible to "undisturbed natural conditions".
If as an absolute statement, this was true, then there would be good cause for some of the outrage that we have seen on the internet, in the media and elsewhere. But reference to the actual directive might suggest a certain caution. Specifically, recital 31 states:
In cases where a body of water is so affected by human activity or its natural condition is such that it may be unfeasible or unreasonably expensive to achieve good status, less stringent environmental objectives may be set on the basis of appropriate, evident and transparent criteria, and all practicable steps should be taken to prevent any further deterioration of the status of waters.
This is then amplified in Article 3, which permits Member States to adopt a lower standard if the changes necessary for achieving good ecological status would have significant adverse effects on "water regulation, flood protection, [and] land drainage".

In other words, there is a very clear and specific exemption to the stated objective of achieving "good ecological status", if the Member State judges that the works necessary to achieve that status would have significant adverse effects on flood protection.

On that basis, no one other than a myopic barrack-room lawyer could assert that any requirement of the Water Framework Directive had in any way required the dredging of our rivers to be abandoned. Mr Walling's assertions are simply wrong.

Furthermore, it cannot even be said that there has been an "almost complete cessation of dredging". In the very articles reporting this claim – such as in the Daily Mail - we see reported an Environment Agency spokesman saying that: "… over the past two years we have spent £21 million on dredging". Even at that level, Mr Walling is wrong.

But there is a further twist to this matter, in the distinction between the process of dredging, and the visibly identical but legally distinct process of de-silting. The practical difference is that dredging is regarded as a process which changes the contours of a watercourse – deepening and/or widening it. De-silting is a process of removing accumulated silt, without affecting the basic profile of the watercourse.

In many respects, when people refer to "dredging", in the context of maintaining the free flow of water in order to prevent or reduce flooding, they actually mean de-silting.

There are stringent controls on dredging – with permits required before work can start – but there are also restrictions on carrying out routine maintenance in the form of channel de-silting. Under most circumstances, this requires Flood Defence Consent

Once the work is carried out, as we see from government guidelines, the silt from normal watercourses may be deposited on the banks of the watercourse from which it is taken, or spread on adjoining agricultural land.

As to the task as a whole, far from there being any prohibition, there are legal obligations on riparian owners to maintain the beds and banks of watercourses, so as to permit the free flow of water. Nothing has changed here. These obligations still exist.

It is the case, though, that there has been confusion over the application of EU legislation, and recognition that UK bureaucracy is unduly onerous. Thus we have seen a measured process of deregulation started by Owen Paterson, to which effect the Environment Agency in 2014 republished in respect of certain "pilot areas" a Regulatory position statement which removes completely the requirement for a Flood Defence Consent for de-silting works.

This, incidentally, has the effect of confirming that de-silting is not in any way restricted by EU legislation or, in the ordinary course of events, controlled by it. The UK could not engage in unilateral deregulation if that was the case. And then, since dredging is not prohibited if it is shown to be necessary for flood prevention, in that respect there is nothing to deregulate.

For all that, though, the EU is not off the hook - not by any means. Through an entirely different directive, the Habitats Directive, we see imposed a complex system of safeguards for "European Protected Species" – and this certainly does have an effect of choices made, as to whether to carry out dredging.

Essentially, because dredging is a process which is potentially harmful to a wide rage of species, a wide range of controls are most often imposed – with significant cost implications. And while the extra costs, per se do not prevent dredging, they can render the process too expensive for current budgetary allocations – or make alternatives more attractive.

Then. artificial distinctions between capital and revenue costs can mean that the artificial inflation of maintenance costs can create a perverse incentive to defer maintenance work until it creates a need for capital expenditure (see p.16). And where dredging falls into the capital account, its expense can mean that it does not meet Treasury benefit-cost criteria. It is then ruled out on benefit-cost grounds - an indirect effect of EU law.

The combination of these effects also means that high value capital schemes in major urban areas can score better then either routine maintenance or [relatively] low-cost dredging in rural areas or small habitations.

None of this, though, can be directly attributed to EU legislation, as was seen on the Somerset Levels after the flooding. Where the political temperature was increased, the Environment Agency found that it could, after all, justify the dredging of the River Parret. Previously, this had been thought impossible under Treasury rules.

Thus, where EU legislation does have its greatest effect is in the Habitats Directive, as indeed the Irish are reporting in respect of dealing with the floods in the River Shannon basin.

Nevertheless, while Simon Harris, Minister of State for the Office of Public Works concedes that, "Some of the suggestions [for flood remedies] will breach the EU directives", he adds: "We have a humanitarian crisis in some areas and in those instances protecting those communities may trump any EU directive that is in force".

And he is right. In that case, Article 16 of the Habitats Directive provides for derogations: "to prevent serious damage, in particular to crops, livestock, forests, fisheries and water and other types of property", or "in the interests of public health and public safety, or for other imperative reasons of overriding public interest, including those of a social or economic nature".

Although such a stance is unpopular with "green" interests, the reality of the situation is that the only way an EU directive can have a decisive effect on flood protection is if the local (i.e., national) authorities permit it. Effectively, our own government is the author of our grief, using EU law to promote a "green" agenda. 

This reality is all-important in the run-up to the referendum. The tendency to blame the EU for every single woe is one which damages the credibility of the anti-membership cause, while flawed claims, based on inadequate or faulty research, reduce the impact of better-founded work.

As much to the point, as we saw with the Somerset flooding, it is important to understand the complexity of such issues, and realise that problems rarely arise from a single (or even a few) issues. Invariably, what we are seeing is the concatenation of multiple issues, some local, some regional and national, and some international.

Significantly, underpinning the EU's Habitats Directive are the 1971 Ramsar Convention and the 1979 Berne Convention, both of which would continue to apply after we have left the EU. The real point, therefore, about the EU is that it is unnecessary. It simply adds another layer of government and adds to the confusion and lack of accountability in areas where clarity and certainty are required. 

That, more than anything, is why we are best off leaving the EU.

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