Natural Resources Wales admits unlawful investigation into Llyn Padarn
Fish Legal has won major concessions from Natural Resources Wales (NRW) via a Judicial Review of the new regulator’s investigation into long-term environmental damage at Llyn Padarn, a Site of Special Scientific Interest (SSSI).
NRW will now be required to re-run their investigation properly, to take fuller account of damage from sewage pollution and other impacts on the SSSI habitat and the protected species of fish - Arctic char (pictured).
Fish Legal has been fighting for nearly 20 years to get NRW (previously the Environment Agency Wales) to stop sewage pollution which was causing algal blooms and damaging fish populations, including the rare Arctic char. In February 2012, Fish Legal formally notified NRW of damage to the lake under the Environmental Damage Regulations 2009 triggering a 17 month investigation, the outcome of which was then challenged in late 2013 by Fish Legal for perceived illegalities.
On behalf of its member club the Seiont, Gwyrfai and Llyfni Angling Society, Fish Legal issued Judicial Review proceedings against NRW for failing to investigate Dwr Cymru / Welsh Water (DCWW) properly in accordance with EU law. Last-minute negotiations went to the 'door of the court' before NRW acknowledged the full extent of its mistakes, making the investigation and liability notice served on DCWW unlawful.
An underlying reason for NRW failures was that the Welsh Ministers did not correctly implement EU law into national regulations, which may have implications elsewhere in the UK where similar regulations were made.
Further revelations came to light during the course of the case including that DCWW has, for a number of years, allowed untreated sewage to enter the lake in one spot without having a discharge permit. DCWW initially omitted evidence about this discharge, but when it was queried by the angling society Club Secretary, Huw Hughes, they belatedly admitted it existed and that they would now apply for a permit. Mr Hughes had complained about this discharge on many occasions before and could not understand why it had not been identified in court documents.
The NRW investigation report, challenged by Fish Legal in this Judicial Review, did identify DCWW as having caused environmental damage to the lake, but failed to assess the full extent of the impact of DCWW activities. Through its legal action, Fish Legal has now forced the regulator to admit that it should have taken into account damage arising from a much longer time-period, including damage from ongoing activities that started before the new law came into effect, but which have caused/will cause damage since that date.
This is important because the lake has been contaminated for decades by the collection and then discharge of both treated and untreated sewage by DCWW, and NRW must now consider the impact of that ongoing activity. Other ongoing activities at the lake that cause damage to the char or its habitat can also be covered. An example highlighted in evidence is the Dinorwig hydro-power installation (the so called “electric mountain”) that has cut-off access to important char habitat and spawning grounds.
Fish Legal believes this new investigation is likely to show greater damage caused by DCWW activities (and potentially other operators) to the protected SSSI habitat and its rare fish.
Fish Legal has campaigned for better water quality at Llyn Padarn since the 1990's, representing its member club who owns the fishing rights at the lake. Llyn Padarn is a precious glacial lake in North Wales, containing a unique sub-species of Arctic char found nowhere else in the world. This species has suffered long-term decline and has now reached such a vulnerable state that it is on the verge of total collapse.
The once pure waters of this Site of Special Scientific Interest (or SSSI) have been contaminated for decades by sewage discharges from DCWW facilities, leading to a toxic algal bloom in 2009.
Huw Hughes, Secretary at the Seiont, Gwyrfai and Llyfni Angling Society, said:
“It's beyond belief that it's taken 22 years of complaining, campaigning, and eventually legal processes, for the authorities to admit their failure in regulating pollution and other activities which have driven the Arctic char to the brink - an iconic Welsh fish which by its presence highlights our supposedly pristine environment. In my opinion this fish has been driven onto the edge of extinction by regulatory inactivity. In light of Fish Legal's sterling work we now sincerely hope that the urgency required will now be directed into clearing up this mess, and all involved, especially Dwr Cymru / Welsh Water, will fully co-operate in this operation"
William Rundle, Head Solicitor at Fish Legal, commented:
“It has been an uphill struggle to get the regulator to admit to failures in its investigation. We now hope they will undertake their new investigation quickly and without fear or favor. The situation needs to improve soon if the char are to reverse their tragic decline."
He further commented:
“Dwr Cymru / Welsh Water is a major polluter throughout Wales and has put significant resources into obstructing our progress in this case. Based on past experience I would expect them to continue to fight the regulator in any new decision imposing greater (or any) liability on them for their damaging activities. However, we hope that they will now take a more constructive approach to this problem given the serious state of the SSSI and its rare fish, and put their significant influence into better protecting the environment. Actions will speak louder than words.”
Mark Lloyd, Chief Executive of Fish Legal and the Angling Trust said:
“It should not have taken 20 years for the regulator to recognise it can do more to stop a water company pouring sewage into a beautiful mountain lake containing unique and endangered fish. Natural Resources Wales needs to have a long hard look at how they have failed to protect the natural environment for so long. It is only because Fish Legal kept fighting through the courts that they finally agreed to take action and re-do their investigation lawfully. We are only able to fight these causes because of the support of thousands of Fish Legal member clubs and individual members of the Angling Trust and Fish Legal.”