River Wye pollution: Environment Agency is 'allowing farmers to break the law' causing 'agonising death' of UK river

The River Wye is in an “ecological crisis” and the Environment Agency’s approach is “allowing farmers to continue to break the law,” a court heard yesterday (Wednesday 7 February). David Wolfe KC, spoke on behalf of claimants River Action UK in a judicial review at Cardiff’s Civil Justice Centre. 

The core of the Judicial Review is River Action’s belief that the Environment Agency (EA) has acted unlawfully in failing to enforce important environmental regulations, such as the Farming Rules for Water (FRfW), and in doing so has failed to protect the Special Area of Conservation of the River Wye from the huge levels of diffuse agricultural pollution. The charity’s legal team said the “agonising death of the River Wye has unfolded in recent years like a car crash in slow motion” and a “major cause for this is the recent exponential growth of intensive poultry production” which has led to “the land of the river catchment to become overdosed by several times the level of phosphorous that can ever be absorbed naturally by what grows in the valley.”

A large amount of organic manure has been spread over the land of the River Wye catchment leading to a substantial increase in levels of phosphorus in the soil. When washed into the river by rainwater, the phosphorus causes prolonged algal blooms which turn the water an opaque green.

The FRfW regulations were introduced in 2018 for farmers to make sure that fertiliser does not get into watercourses and that they should not put more on fields than is needed. River Action says the EA deliberately ignored the rules under pressure from farmers allowing them to apply excessive amounts of manure to fields.

Evidence presented in court by Mr Wolfe showed how the EA had found levels of phosphorus in a particular farmer’s fields to be 10 times over permitted limits due to manure spreading. He told the court that it has been a “long standing issue and long recognised challenge” and the government has been “well aware of the impacts.”

He argued the EA had failed to apply the FRfW regulations issued by the government’s Department for the Environment, Food and Rural Affairs (Defra), an interested party in the case. Mr Wolfe said: “The FRfW are not being lawfully enforced by the defendant, which is allowing farmers to continue to break the law. Nutrient run-off from agriculture continues to cause serious ecological damage.”

When there have been breaches, Mr Wolfe said the EA had failed to require fixes, with no timeline given to become compliant. He added that farmers were not told they were in breach of the law, telling the court: “It is not a regime which allows farmers time to come into compliance but a regime which in effect allows apparently open-ended non-compliance.”

Between January 2020 and October 2023, there were 515 farm inspections on the Wye – with 31% found to breach regulations. Mr Wolfe said that there is “nothing” from the Environment Agency to tell farmers “you have got to do this by this date and enforcement will be taken”.

River Action argues that Defra’s guidance provides sufficient leeway for excessive spreading to continue. For example, the guidance says farmers can still spread manure in the autumn beyond the crop’s immediate need, so long as it does not exceed the total requirement for the whole crop cycle. 

Mr Wolfe said in court that if there is a crop planted in either winter or autumn it “will not need significant fertility until spring” and “so the question is why then is the land manager applying organic manure in the autumn rather than waiting for the spring?”. He added: “The risk that creates is that the organic manure is sitting around over the winter period, fertility is not taken up by crops and washes them to the river”.

River Action accuses the National Farmers’ Union (NFU), an intervener in the case, of watering down the FRfW regulations. In August 2021, the NFU met Lord Benyon, then the parliamentary undersecretary for Defra to discuss the legislation, and attended another meeting four months later  with Victoria Prentis MP, then the minister of state for Defra, along with officials from the Environment Agency and the British Egg Industry Council and British Poultry Council, two trade associations representing farmers.

In response to a freedom of information request, Defra refused to release the minutes of this second meeting, claiming policymaking in this area was “still ongoing” and that releasing this information could “risk inhibiting officials from having full, frank and open discussions as part of the process of formulating policy”. But in written evidence submitted to parliament’s environment, food and rural affairs committee, the NFU said it was decided in this meeting that an EA team tasked with implementing the legislation would have its terms of reference “rewritten” to “reflect our dialogue”.

The guidance now says: “Where a land manager has acted in accordance with the statutory guidance, we will not inform them that they are non-compliant with the FRfW (farming rules for water).” It allows manure to be spread in direct contradiction with the rules, as long as all “reasonable precautions” are taken to reduce pollution or in circumstances when reducing manure use is not “reasonably practicable”.

The document states that “the regulations have not changed” and enforcement action will not usually be taken providing farmers “can demonstrate that they are operating in accordance with the statutory guidance even if they are not compliant with regulation 4(1)(a)(i) and (ii)”. These regulations are in place to limit how much poultry manure can be spread on farmland ensuring that nutrients “[do] not exceed the soil and crop needs or give rise to a significant risk of agricultural diffuse pollution”.

Charles Watson, the founder of River Action UK, has previously said that this “loophole” is “why the soils are now overloaded several times above and beyond what they can take.” John Mercer, the director of NFU Cymru, speaking in court yesterday said the NFU is “fully behind the need to protect the environment” and it would be “absurd to follow the claimant’s logic”. He said it is “not possible to plan on immediate needs of soil and crop” and “organic manure provides additional benefits to soil health.”

The case was adjourned yesterday and will continue today (Thursday 8 February).