DEFRA faces renewed court action on river pollution

With state of our rivers very much in the public eye since lockdown began, Fish Legal, Angling Trust and its partner WWF have gone back to court because the Department of Environment, Food and Rural Affairs (DEFRA) is dragging its feet in tackling agricultural pollution of England’s rivers, streams and lakes.

Waters across England are affected by fertilisers, manure, pesticides and sediment that wash into rivers, causing “nutrient” levels to rise killing off aquatic species including fish.

The most vulnerable waters are those protected in law such as sites of special scientific interest (SSSIs) and special areas of conservation (SACs). Phosphates and nitrates in the fertiliser, for instance, can get into these protected areas causing them to deteriorate because the species they support rely on clean and nutrient free water.

The Environment Agency are expected to produce Diffuse Water Pollution Plans (DWPPs) every 6 years to set out what actions they are going to take to reduce the pollution.

The case was originally brought to court in 2015 because DEFRA had simply not been using the only effective “measure” to combat pollution: “water protection zones” or WPZs. WPZs can limit what can or cannot be done by farmers to prevent pollution. But the case was then settled in 2015 on the basis of a promise that the Environment Agency would do the right investigations and produce the DWPP reports “as soon as reasonably practicable”.

However, 6 years later, only 4 of the 37 sites chosen by DEFRA and the EA have completed DWPP’s. Delaying the publication of the DWPP’s means that dealing with the pressures faced by these sites has also been postponed.

Many of the 37 sites at issue here are of importance directly to Fish Legal and its membership as they support fisheries which are vulnerable to agricultural diffuse pollution.

For example, the River Wye and its tributaries are under severe pressure from agricultural pollution causing damage to water quality, weed growth and salmon and spawning. Salmon are a flagship species for our rivers, a quintessential fish, deeply rooted in our heritage and culture. Large salmon have declined by 54-88% since the 1970’s.

The Rivers Test and Itchen, two of the most famous chalkstream trout rivers in England are hugely susceptible to pollution from agriculture including fish farms and cress beds as well as excessive abstraction, exacerbating the effects of pollution.

The three claimants are taking DEFRA and the Environment Agency back to court today because they have failed to comply with the court order.

Justin Neal, Solicitor for Fish Legal, said: “In 2015, Defra and the Environment Agency promised to come up with plans to deal with diffuse water pollution from agriculture in sensitive sites.   Some 6 year later they have only managed to produce a handful of plans and in the few we have seen, there is very little evidence of any positive action.  They have the legislation in place to prevent pollution.  But the Environment Agency has neither the will nor the resources to do anything.   If they can’t take action to prevent deterioration of the most precious and protected areas, what hope is there for the rest of the rivers and lakes in England?”

Mark Owen, Head of Freshwater, The Angling Trust said: “Agricultural diffuse pollution is one of the biggest pollution problems we have in our rivers and lakes, the government has failed to confront this issue over the years and use the legislation they have in place to stop this. The fact that in a 6-year period they only produced a small number of plans with no resultant action is shameful.”

Much of the decline is driven by the poor state of freshwater habitats in parts of the UK, with just 14.6% of rivers in England achieving Good Ecological Status in the latest assessment. This is mostly due to agricultural pollution such as nitrates and phosphorous, physical modifications to waterbodies, such as dams, and, sewage. Furthermore, data released by the Environment Agency in 2020, showed no English rivers met ‘chemical standards’ for water quality.

Legal challenge from WWF, Angling Trust and Fish Legal

• Fish Legal, the Angling Trust and WWF are renewing their legal challenge over DEFRA’s failure to create Water Protection Zones to protect freshwater ecosystems and biodiversity at important sites for nature, where diffuse agricultural pollution – contamination of soil, air and water as a result of farming activities- remains a significant threat. 
• The Claimants are applying to Court to enforce a Consent Order issued in 2015, after court action from WWF, Fish Legal and the Angling Trust.
• The Claimants sent a formal ‘letter before action’ to DEFRA (the Defendants) in August 2020 (at which point, only one draft in Diffuse Water Pollution Plan had been produced). DEFRA and the EA responded in September 2020.