Anglers dismayed at Environment Agency decision not to prosecute
While damage to fish stocks was not immediately apparent, within a few days dead fish were floating belly-up on the water, and others were gasping for air. Highly-valuable, large specimen carp were among those found dead. This was reported immediately to the EA by local anglers, who knew that there is a maximum of 48 hours to get oxygen back into the affected water to save dying fish. The Todmorden Angling Society (TAS) asked the EA to bring aerators with them to do this but, for reasons which remain unclear, the EA delayed and insisted on visiting the site first to make their own assessment.
On arrival, the EA agreed that the oxygen level was dangerously low (16% when it should have been around 75%) and only then made arrangements for aerators to be deployed, wasting several hours. After around 40 hours constant use, the water condition improved significantly, but sadly it was too late to save most of the fish. Whilst in the immediate aftermath of the pollution no one fished for health and safety reasons, more recently anglers report that very few fish are being caught and there is an absence of the large specimen fish that were once the major attraction for club members and day ticket sales.
To add insult to injury, the EA refused to undertake a fish kill assessment despite being pressed on the obvious need to properly assess the damage caused to fish stocks. When challenged by Fish Legal about this, various different reasons were given and further requests for a full and credible explanation were at first deferred and then later, refused.
The EA’s own target for making enforcement decisions is 12 weeks from knowledge of the incident, and yet 38 weeks after the incident the EA were still talking about bringing its investigation to “a swift conclusion”! It was not until the 14th of October 2013 (some 72 weeks later) that it told Fish Legal “we have now concluded our investigation”, but was still unable to confirm the outcome. The EA eventually wrote to the club on the 25th of February 2014 to say it would not take a prosecution.
Despite confirming that the pollution was a Category 2 incident, which means it has a significant impact on the environment, and confirming the pollution had “caused significant fish mortality” including an offence under the Environmental Permitting (England and Wales) Regulations 2010, the EA decided to serve the polluter with only a formal warning letter. The polluter was prosecuted separately by the Health & Safety Executive (HSE) for two breaches of the Health & Safety at Work Act 1974, was fined £5,000 and ordered to pay prosecution costs of £6,000 at Trafford Magistrates Court in February 2014. The HSE’s commitment to enforcing the law and prosecuting offenders stands in stark contrast to the Environment Agency’s shoddy investigation, delays and weak enforcement response.
Fish Legal has requested the EA’s case file under a freedom of information request and will submit a formal complaint to the EA inviting it to reconsider its enforcement decision and asking for a fuller explanation as to why it did not take decisive action. Unlike the EA in this case, Fish Legal will battle on to try and help TAS, and is committed to taking the polluter to court if necessary, to recover compensation for the club to restore its fishery.
Cameron Hogg, Solicitor at Fish Legal, said
“It is hugely disappointing to wait so long for little or nothing to happen. The EA failed the club by delaying with aerators, then again by refusing to do a fish kill assessment, then once more by failing to prosecute. It also took more than seven times longer, at over 91 weeks, to make an enforcement decision, than the EA’s target of 12 weeks. The EA has not given a sensible (or sometimes any) explanation for the actions it refused to take, or its delays. The EA has been given the bullets, but has not pulled the trigger - again.”
Will Rundle, Head Solicitor at Fish Legal, said
“This is yet another example of Environment Agency failures when responding to pollution killing wildlife. In this case they failed to take timely action to protect the environment and punish offenders. We recently exposed serious failures within the Agency in its management of its pollution response function, which highlighted delay, inconsistency, and a failure to follow its own guidelines. This case demonstrates those problems and just goes to show how bad it has got; a significant fish kill has resulted in a mere warning to the polluter nearly two years after the event. It begs the question whether the EA is fit for purpose.“