Abstract
There is a conspicuous lacuna in the Environmental Protection Act (EPA) 1990 because it imposes no legal duty on statutory bodies to clear litter from aquatic environments (rivers, canals and lakes) in England and Wales. This paper identifies a significant gap in the law on aquatic environmental protection by undertaking doctrinal research, including contextual analysis of references to rivers in ‘soft’ law (e.g., policy documents such as the Conservative Government’s Litter Strategy) and ‘hard law’ (e.g., legislation including the EPA 1990); an examination of the problems with existing legal frameworks in this sphere and an exploration of legislative and practical measures which could protect our rivers and other inland waterways from litter. A legislative amendment to the EPA is proposed with discussion of whether imposing a duty on an existing body or a new, specialised body to clear litter from rivers will ameliorate these problems. The intention behind this paper is to initiate an informed debate on how to protect aquatic environments from the harmful effects of litter.
Highlights
Over sixty years ago, concerns about land-based litter led to the enactment of the Litter Act 1958
Limited policy progress could be seen in September 2019 when DEFRA made a small amendment to its Code of Practice; this was a missed opportunity to provide a substantial amendment to Government guidance, addressing matters such as the existing lacuna in the Environmental Protection Act 1990 and the need to strengthen the legal regulatory framework to protect aquatic environments from litter
This author would suggest that while a modification to the Environmental Protection Act (EPA) would be a welcome development, such an amendment would not, by itself, resolve the lack of clarity over which public body would be responsible for clearing litter from internal waterways. This imposes duties upon bodies without the resources to discharge it. While this reform provides a helpful starting point, any changes to legislation would need to be accompanied by further clarification to establish whether duties to clear litter ought to be imposed on the same bodies which clear land, or whether due to the specialised nature of clearing litter from water, that duties need to be imposed elsewhere, such as on bodies with the resources and equipment to tackle litter in rivers and other internal waterways
Summary
Concerns about land-based litter led to the enactment of the Litter Act 1958. This section considers the incongruent treatment of land and internal waterways under the Environmental Protection Act (EPA) 1990 and how this differential treatment has led to a failure to provide rivers and watercourses with adequate legal protection. This omission may be because, in the debates prior to the enactment of the EPA, the discussion emphasised that monitoring and enforcement duties over domestic waters rested with the (former) National Rivers Authority (NRA) (Hansard 1990, EP Bill, cols 524–25) In practice though, this was not the case, and the NRA was responsible for the supply of drinking water, sewerage and sewage disposal, flood management and pollution prevention, but not the clearance of litter from internal waterways. The conceptual and legal doctrine shaping the treatment of water, is an unsatisfactory situation at best and out-dated and unequal at worst
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