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Campaign group to appeal legal challenge against the Environment Agency & prepares for further legal action to protect the Wye

River Action is appealing a High Court decision over pollution in the River Wye.

The campaign group has applied to appeal the recent Judgment passed down by Justice Dove which concluded that the Environment Agency’s approach to enforcement in relation to the River Wye Special Area of Conservation (SAC) was not unlawful.

Chair and founder of River Action Charles Watson said, “We remain deeply concerned that insufficient regulatory action is being taken to protect the River Wye from wide-spread pollution caused by unsustainable intensive agricultural practices. Because of this, one of the most highly protected rivers in the UK faces ecological collapse. We will therefore continue our legal fight to save the River Wye.”

River Action is taking the following six actions:

  1. Appeal of Judgment on Ground 3 of River Action’s recent Judicial Review hearing
  2. Establish an independent audit process of all on-going EA enforcement activity within the Wye catchment in relation to the application of the Farming Rules for Water
  3. Investigate widespread environmental non-compliance within the Wye’s free-range egg industry
  4. Investigate the EA’s alarmingly low response and attendance levels of pollution incidents
  5. Challenge the current DEFRA guidance with regard to enforcement of the Farming Rules for Water
  6. Call for the transparent publication by the EA of all information relating to pollution incidents and the consequential enforcement of environmental regulations, to mirror real time data now published by water companies regarding sewage spills

RIVER ACTION RESPONSE TO JUDICIAL REVIEW JUDGMENT AND PROPOSED NEXT STEPS

On May 24 2024, the Hon Mr Justice Dove handed down his judgment in River Action’s recent claim for Judicial Review against the Environment Agency.

The Judgment contained a number of significant wins for River Action. These included the acknowledgement by the judge of the undisputed severe levels of pollution caused by excessive levels of phosphorus in the waters of the River Wye and the recognition that farming practices must change. Going forwards, farmers will be limited in the amount of manure they can spread in the autumn and winter when the danger of polluting the river is at its highest.

The judgment calls into question the status of the current guidance issued by DEFRA to the EA regarding the enforcement of Rule 4(1)(a) of the Farming Rules for Water. Finally, the judge unequivocally dismissed the NFU’s intervention in the Judicial Review proceedings that Rule 4(1)(a) could be interpreted to routinely allow applications of manure in the autumn for use by the crop the following spring.

However, the judge dismissed the claim for judicial review on the basis that changes to key enforcement documents made by the EA during the course of the proceedings subsequently brought it into compliance with the law. The judge recognised that these changes were only made as a result of River Action’s legal claim.

Notwithstanding the above, River Action remains deeply concerned that insufficient regulatory action is being taken to protect the River Wye from the various severe pollution threats it currently faces and accordingly it is taking the following actions:

1. Appeal of Judgment on Ground 3 of the Judicial Review. River Action has applied to the High Court to appeal the Judge’s conclusion that the EA’s approach to enforcement in relation to the River Wye Special Area of Conservation (SAC) was lawful. In the landmark case of Harris v EA (2022), Mr Justice Johnson concluded that the EA had failed to discharge its duty under the Habitats Regulations 2017 because it was the only enforcement agency with the power to review water abstraction licences (water abstraction being a factor in the unfavourable status of the Broads SAC). River Action argued that the same principle applied to the Wye, because while there are a range of enforcement agencies addressing multiple threats to the SAC, only the EA can address the enforcement of the Farming Rules For Water. The judge disagreed, holding there are numerous potential sources capable of contributing to the phosphorus pollution in the Wye and that action is required not only under the 2018 Regulations, but also under other regulatory regimes.

2. Establish independent audit process of on-going EA enforcement activity in relation to the Farming Rules for Water. Mr Justice Dove accepted the EA’s evidence and acknowledged that “the defendant is working on a broad range of initiatives, including targeted farm inspections….”. River Action remains concerned that enforcement action is not being pursued with the urgency and application required to address the severe pollution of the river. Accordingly, River Action intends to establish a process to audit independently all EA enforcement activity of

the Farming Rules for Water in the Wye catchment. Under the Environmental Information Regulations (EIRs) 2004, River Action has requested details of:

  • All recent farm inspections undertaken by the EA;
  • Details of all identified breaches of the Farming Rules for Water;
  • The actions (if any) the EA has taken in response to each specific breach; and copies of Inspection Reports and documentation relating to any enforcement actions.

Going forward, River Action’s intends to request this information on a rolling, three-monthly basis.

3. Investigate widespread environmental non-compliance of the free range egg and poultry industry. In November 2023, a series of EIR responses received by River Action revealed widespread non-compliance with Slurry, Silage and Agricultural Fuel Oil (SSAFO) and Environmental Permitting Regulations (EPR) by a significant number of free range egg and poultry farms in the Wye catchment. Arising from extensive correspondence over a period of two years between the Wye and Usk Foundation and the EA, these revelations implied systemic non-compliance across the egg and poultry producing industry, implying another major potential source of river pollution. To investigate what action the EA has taken in the light of these revelations, River Action has accordingly requested information under the EIRs 2004 on:

  • The number of inspections of egg farms in the River Wye catchment over the last three years;
  • The number of enforcement notices issued to egg farms under SSAFO and EPR regulations.
  • Details of all enforcement actions/prosecutions that have subsequently taken place.

4. Investigate response and attendance levels of pollution incidents. River Action has reason to believe that the response and attendance levels by the EA to pollution incidents on the River Wye are insufficient given the severe pollution of the river and the fact that the status of the river isn’t improving. Accordingly, River Action has requested the following information under the EIRs:

  • Any written EA policy of responding to reported pollution incidents;
  • The number of pollution incidents reported within the Wye catchment;
  • The number of such incidents which were attended and investigated;
  • The subsequent action (if any) taken against polluters.

5. Pending action to challenge the current DEFRA guidance with regard to enforcement of the Farming Rules for Water. Given the questionable status of the current guidance issued by DEFRA to the EA regarding the enforcement of Rule 4(1)(a) of the Farming Rules for Water, River Action intends immediately after the General Election to request that the Secretary of State for DEFRA repeals this guidance to clarify that the environmentally damaging practice of spreading excess manures in autumn/winter months is a breach of the Rules.

6. Call for immediate availability of all information relating to enforcement of environmental regulations. In the context of the above, River Action is mindful that the Chief Executive of the EA recently raised public concerns about the burden on EA staff of responding to FOIA 2000/EIR 2004 requests. The relevant environmental regulations are long established (SSAFO since 2010, EPR since 2016 and the Farming Rules for Water since 2018) and there is a positive duty on public bodies to progressively make information about the state of the environment and their enforcement activities publicly available under the EIRs 2004. If this information was freely and publicly available, the EA would not have to respond to ad hoc requests. River Action is accordingly requesting that by the end of 2024, all environmental information relating to the enforcement of the above regulations should be proactively and transparently disseminated via an appropriate digital portal.

It is understood that the Chief Executive of the EA is well aware of the benefits of such an approach given that it was recently reported in the Guardian newspaper that “An Environment Agency spokesperson said: ‘Philip is completely committed to the highest standards of transparency, as he repeatedly stressed at the River Summit. He wants to make more EA data readily available, and we are already looking at how this can be achieved…”.

The public availability of such critical environmental information already has precedent following the recent legal requirement for water companies to publish real time data relating to sewage spills.

7. Further legal action under consideration. River action is currently reviewing a number of further opportunities with regards to taking legal action where evidence is apparent of regulatory bodies failing to fulfil their statutory duties to enforce the law.

ENDS

For interviews call Ian Woolverton on 07377 547 362 or email media@riveractionuk.com

NOTES TO EDITORS

River Action is on a mission to rescue Britain’s rivers by raising awareness of the crisis facing our rivers, and the failure of Government funded environmental agencies to make water companies invest in their polluting infrastructure and to prosecute illegal business practices that cause river pollution.