Report on the Reservoirs Bill
Date: 24 June 2014
Reference: NIA 187/11-15
Mandate Number: Mandate 2011/15 Second Report
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1. The Reservoirs Bill will define and provide a regulatory regime for what will be known as a controlled reservoir. It is anticipated that 151 reservoirs will fall under the remit of the Bill with the majority – around 50% being in public ownership. Approximately another 40% are in private ownership, 6% are owned by the third sector and there are still 4% reservoirs where the ownership is still unclear.
2. The Committee indicated that it had no concerns with the major principle of the Bill in that it is designed to protect people, the environment, economic and cultural assets from the consequences of a dam failure and the reservoir flooding. However, the Committee did have a number of concerns around how the Bill proposed to offer this protection.
3. The Department had some information on the 151 reservoirs such as ownership, capacity and preliminary risk designation. But it was unable to inform the Committee of the physical condition of the reservoirs and it could not quantify how much it might cost to bring them to an acceptable safety standard to protect people, the environment, economic and cultural assets. While the Committee accepted amendments proposed by the Department that would, in effect, allow the opportunity for this information to be collected and presented to the Assembly before large sections of the Bill are commenced, it was very strongly of the opinion that this work should have been done before the Bill was introduced to the Assembly. The lack of concrete information made decision making on aspects of the Bill very difficult.
4. The risk designation process as provided for at clauses 17 to 23 was an area of major concern for the Committee. It is the risk designation that ultimately decided the operating regime that the reservoir manager must adhere to. It was concerned that the use of terminology i.e. risk, suggested that reservoirs would be designated as high, medium or low risk using an assessment process based on consequence and probability. This is not the case as there is no acceptable worldwide standard for probability of reservoir failure. As proposed the risk designation process in the Bill will use consequence as the main designation tool. However, the Bill does mention and refer to probability in a manner that suggested that it will be used, thus creating, what the Committee perceived as an inoperable clause at clause 22. The Committee concern however, centred not only on terminology but on the inability of the reservoir manager to affect the risk designation by their compliance with the Bill. The Committee therefore voted not content with the relevant clauses. Post this Committee vote, amendments from the Department on this issue were received. The amendments and a brief outline of the policy intent as described by the Department are at Appendix 7. During the Committee consideration of this Report it agreed it was content with the amendments. However, some Members disagreed with this position and indicated that they had insufficient time to fully consider the implications and practical out workings of the amendments.
5. The Bill is based on ensuring compliance by reservoir managers with a series of operating requirements. These requirements or the operating regime are largely based on the directions of and are “overseen” by various types of reservoir engineers as appropriate to the task. The Bill has provision for the Department to establish Panels of Reservoir Engineers. The engineers are hired on a personal basis from these Panels by the reservoir manager. The Bill included a series of offence and penalties for the reservoir manager regarding non-compliance with the directions or requirements of a reservoir engineer. And while there was no disagreement on the offences and associated penalties, the Committee indicated that it wished to see a more balanced approach to the role of the engineers. It was felt that there was a real risk that, in the interest of being risk adverse and on the precautionary principle, engineers may, in the words of many witnesses “over engineer”. The Committee noted there was opportunity to challenge the direction of a reservoir engineer, by hiring another reservoir engineer to act as a referee. However, outside of this mechanism, which may prove expensive, it could be particularly difficult for lay people to challenge engineers. There was concern that there was no central government “oversight” to ensure that such over engineering did not happen. The Department proposed an amendment to clause 106 to address this issue which the Committee was content with.
6. As noted above to comply with the Bill the reservoir manager must adhere to an operating regime as provided in the Bill. One such requirement that the Committee did feel was “gold plated” was the minimum number of visits by a supervising engineer to a high or medium risk reservoir in any 12 month period (at least twice in any 12 month period for high risk and at least once in any 12 month period for medium risk) . The Committee sought an reduction in this requirement. A proposed amendment from the Department allowed that high risk reservoirs would have a visit at least once in every 12 months with medium risk at least once in every 24 months. The Department provided advice on why this could not go any further. The Committee did not feel that the reduction was sufficient. It therefore voted not content with specific reference to clause 25(2)(k) and 33(4)(i). At the last minute the Department brought further revised amendments to reduce the requirement for medium risk reservoirs to at least one in every 36 months with no further reduction for high risk reservoirs. It should be noted that as the revised amendments were not received in time for the formal Committee vote on the relevant clauses, the Committee vote of “not content” remained its formal position. The Committee considered the revised amendments and noted that it had not had sufficient time to study them in detail. This prevented a decision on the revised amendments being taken.
7. As with the issue of information on the condition of the 151 controlled reservoirs in Northern Ireland, in the opinion of the Committee there is an information gap around the costs that reservoir manager can expect to have to meet in order to comply with the Bill. Despite the fact that legislation of a similar nature to this has been operational in England, Scotland and Wales for decades, the Committee could find no public information on the financial cost of compliance. What little information was available appeared to suggest that capital costs could often be extremely high. This caused concern and indeed, distress for some of the private sector owners who worried about their ability to meet such costs. An amendment proposed by the Department will see that information on costs is published and while this will not be helpful in the short term, longer term it should help address another “information gap” around the Bill.
8. The Bill allowed the Department to step in and take specified actions, including works, when the reservoir manager did not comply with the requirements of the Bill. In such cases the Department would be obliged to seek to recover the full costs of such actions / works. While the Committee were of the opinion that those who could afford to pay, should do so, it also recognised that some reservoir managers, particularly the third sector, may be in this position because they were financially unable to comply with the Bill in the first instance. In response to the concerns of the Committee, the Department has proposed amendments to allow some discretion in whether to seek to recover or not recover costs.
9. All reservoirs including those on private land with no public access, are important assets in terms of the environment. They are also important from the viewpoint of social and recreation use and often have an important flood attenuation role. The Committee therefore expressed concerns that some reservoir owners are either considering or are already decommissioning their reservoirs in an attempt to avoid having to comply with the legislation when it is enacted. The Committee is concerned that these aspects and consequential potential negative impacts has not been clearly thought through or assessed by the Department – other than making it difficult to do so once the Bill is enacted.
10. The lack of information on the condition of the reservoirs in Northern Ireland and the estimated cost to bring them up to an acceptable standard meant that the Committee could not fully comment on the Grant Aid provisions within the Bill except to note that it was content that the Bill contained such provisions, and that for some, mainly the third sector owners, all grant aid, particularly capital grants may need to be at 100%.
11. Finally the Committee did give detailed consideration to changing the part of the definition of a controlled reservoir dealing with capacity. It considered whether capacity should change from 10,000m3 to either 15,000 or 25,000m3. However, based on the information provided to it by the Department it would appear that this would ultimately have little or no benefit and it therefore did not seek an amendment on this issue.
1. The Reservoirs Bill (NIA 187/11-15) was referred to the Committee in accordance with Standing Order 33 on completion of the Second Stage of the Bill on 4 February 2014.
2. The Minister for Agriculture and Rural Development made the following statement under section 9 of the Northern Ireland Act 1998: “In my view the Reservoirs Bill would be within the legislative competence of the Northern Ireland Assembly.”
3. The stated purpose of the Bill is to introduce a legal and administrative framework for regulating reservoir safety in order to reduce the risk of flooding as a result of dam failure in the Northern Ireland. The legislation aims to provide assurance that people, the environment, cultural heritage and economic activity are better protected from the potential risks of flooding from reservoirs.
4. During the period covered by this Report, the Committee considered the Bill and related issues at 16 meetings. The relevant extracts from the Minutes of Proceedings for these meetings are included at Appendix 1 of the report.
5. The Committee had before it the Reservoirs Bill (NIA 187/11-15) and the Explanatory and Financial Memorandum that accompanied the Bill. On referral of the Bill the Committee wrote on 5 February 2014 to key stakeholders and inserted public notices in the Belfast Telegraph, Irish News, and News Letter seeking written evidence on the Bill by 6 March 2014.
6. A total of 17 organisations responded to the request for written evidence and a copy of the submissions received by the Committee are included at Appendix 3 of the report.
7. Further to this the Committee organised an event specifically for private reservoirs owners as this stakeholder group proved difficult to engage. The notes of this event are included at Appendix 4 of the report.
8. Following the introduction of the Bill the Committee took oral evidence from departmental officials about the policy behind the Bill and its general provisions on 11 February 2014. The Committee took oral evidence from NI Water, Northern Ireland Environment Agency, Belfast City Council, Craigavon Borough Council, Newry & Mourne District Council, Antrim & District Fishing Club, Armagh Fisheries Ltd, the Ulster Angling Federation, Ligoniel Improvement Association, the Institution of Civil Engineers, Creggan Country Park and the Ballysagart Environmental Group. The Committee took further evidence from departmental officials on 8 & 29 April 2014, 6, 13 and 27 May 2014 and 2, 10 and 17 June 2014. The Minutes of Evidence are included at Appendix 2 of the report.
9. At its meeting on 11 February 2014 the Committee agreed a Motion to extend the Committee Stage of the Bill to 4 July 2014. The Motion to extend was supported by the Assembly on 24 February 2014.
10. The Committee carried out clause by clause scrutiny of the bill on 3 & 10 June 2014. At its meeting on 24 June 2014 the Committee agreed its report on the Bill and that it should be printed.