Environment Agency facing judicial review over River Wye pollution

An environmental charity has issued judicial review proceedings that claim the Environment Agency unlawfully applied statutory guidance in its approach to protect the River Wye from pollution, leading to the loss of some of the river's plant life.

The charity, River Action, contends that the EA failed to properly enforce the Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018, which prohibit applications of "organic manure of manufactured fertiliser" to farmland in a way that would raise nutrient levels above what is "needed by the crop and the soil".

As a result, the River Wye catchment area has been subject to phosphorus pollution that has caused algal blooms, leading to the loss of 90% of the river's protected Ranunculus bed, the charity claims.

The Regulations, colloquially known as the Farming Rules for Water (FRfW), state that land managers should plan to avoid applying organic manures that raise the Soil Phosphorus Index above target levels for soil and crop on land over a crop rotation, unless they can demonstrate that:   

• it is not reasonably practicable to do so
• they have taken all appropriate reasonable precautions to help mitigate against the risk of diffuse agricultural pollution

However, the charity argues that, as crop rotation can take place over several years, this approach fails to protect the River Wye, which is a designated Special Area of Conservation (SAC), from phosphorus pollution.

The charity is lodging its claim on the following three grounds:

1. The Environment Agency has adopted an approach to enforcing the FRfW that is based on an interpretation of the legislation that it itself acknowledges is erroneous;
2. The defendant has unlawfully fettered its discretion by “slavishly” following the guidance issued by the Interested Party, and/or by misdirecting itself that it was required by law to follow that guidance; and
3. The defendant has breached regulation 9(3) of The Conservation of Habitats and Species Regulations 2017 ("the Habitats Regulations"), in that its policy on enforcement has unlawfully failed to have regard to (and does not require its enforcement staff to have regard to) the requirements of the Habitats Directive in the way it has decided to exercise its function of enforcing the FRfW.

River Action is represented by Leigh Day environment team solicitor Ricardo Gama, who said: "The Farming Rules for Water were introduced in 2018 specifically to deal with the issue of agricultural pollution in rivers like the Wye but from documents we've seen it's clear that the Environment Agency is choosing to apply the rules in a way that is inconsistent with their own interpretation of how the rules are supposed to work.”

Gama added: "This means that manure – essentially an industrial waste product from meat and dairy production – is allowed to flow into our waterways with impunity. Our client hopes this claim will force the EA to reassess their approach and start applying the rules properly."

Charles Watson, Chairman and Founder of River Action, said the damage to the river could have been "seriously mitigated had the Environment Agency enforced existing environmental regulations to prevent the excess application of animal waste on land that was already oversaturated with nutrients.

"The irony is that the same government that introduced these regulations is giving the EA explicit guidance not to enforce them. This unlawful conduct of the EA has to stop now." 

The River Wye catchment is home to a large number of poultry units, with more than 20 million chickens being reared for meat and eggs at any one time, equating to around 25% of total UK poultry production.

River Action argues that the activity has seen an increased amount of manure spread on local land, leading to a surplus of phosphorous in the soils of the river catchment.

In the last year, Herefordshire Council and Powys County Council have both been the target of judicial reviews over decisions to grant planning permission to poultry farm expansions in or nearby to the Wye's catchment area.

An Environment Agency spokesperson said: “We are working hard to restore the health and ecological status of the River Wye – including through increased monitoring and increased farm visits focusing on high-risk locations and previously non-compliant businesses.

“Last year we received extra funding to undertake more inspections, and nationwide since 1^st April 2021 we have visited nearly 5,000 farms and required over 7700 actions from farmers to address agricultural pollution.

“The Farming Rules for Water are one of a number of regulations we use as part of our advice led regulatory approach with farmers, to protect water quality and nature. If we find pollution or significant risk of pollution occurring we will not hesitate to take further action – evidenced by the enforcement action taken against 140 farms this financial year.”

Adam Carey