• Environmental liabilities: Wales

Environmental liabilities: Wales

Legislation includes:

• The Environmental Damage (Prevention and Remediation) (Wales) Regulations 2009
• Environmental Civil Sanctions (Wales) Order 2010

The Environmental Damage (Prevention and Remediation) (Wales) Regulations 2009

The Environmental Damage Regulations 2009 came into force in Spring 2009 and implement the European Environmental Liability Directive 2004 in Wales (other similar legislation covers other parts of the UK).

The legislation reinforces protection already afforded to strictly protected species listed on the Birds and Habitats Directives.  Perhaps more importantly, the Regulations provide some protection for the habitats of species that are not strictly protected by the Birds and Habitats Directive outside of designated sites. For example, the Regulations apply to the habitat of birds listed on Annex I of the Birds Directive, whether inside or outside an SPA (or SSSI), this includes some common species such as kingfisher, golden plover and peregrine, and other regularly occurring migratory birds, many of which are common such as chiffchaff, willow warbler, redwing, fieldfare and blackcap.

Specific habitats listed in the Habitats Directive, such as estuaries and heathland, are afforded protection from damage whether inside or outside a designated site. Similarly, habitats used by species listed on the Habitats Directive Annexes (for example, habitat for stag beetle, or streams supporting white clawed crayfish or bullhead) receive the same protection.

The Regulations mean:

• operators may be required to demonstrate measures to prevent negligent or intentional damage to these species or habitats
• where an operator’s action causes damage, they may be obliged to remediate it

Environmental damage in the case of protected species and habitats is defined as damage having a ‘significant adverse effect on reaching or maintaining the favourable conservation status of the protected species or natural habitat’, taking into account factors such as their existing conservation status, capacity to regenerate and their role within the wider ecological community.  Depending on how this is interpreted by the Countryside Council for Wales (CCW) this has potential to be far-reaching and include a wide range of actions, including those having indirect effects, as well as the more obvious direct effects.  Where applicable, the required remediation measures would be determined by the enforcing authority and implemented by the operator proven to have caused the environmental damage.

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Environmental Civil Sanctions (Wales) Order 2010

Until July 2010, statutory bodies in Wales had the option of responding to breaches in wildlife legislation in two ways, either to issue warning letters, or to proceed to full criminal prosecution.  However, under the Environmental Civil Sanctions (Wales) Order 2010 and the Environmental Civil Sanctions (Miscellaneous Amendments) (Wales) Regulations 2010, the Environment Agency, as the named regulator, can instead choose to respond in a new way: to halt illegal activities, to order the restoration of environmental damage and to impose fines where legislation has been breached. The fines may be up to £250,000.

These changes should mean that an appropriate level of action can be undertaken when wildlife law is breached.  This may mean that, in cases of minor infringement, a fine will be imposed rather than the warning letters that are currently used in such situations.

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