River Wye pollution: Environment Agency says it's 'taking great number of steps' to protect river and has done 'nothing unlawful'

The Environment Agency is “taking a great number of steps” to protect the River Wye from agricultural pollution and there are “numerous different factors” affecting the quality of the river that “are not in control of the agency”, a court heard today (Thursday 8 February).

Charles Streeten spoke this morning at Cardiff’s Civil Justice Centre on behalf of the Environment Agency (EA) as it faces a legal case by charity River Action.

The charity argues that both the EA and the Department for Environment Food and Rural Affairs (Defra) have 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. When there have been breaches, David Wolfe KC, said in court yesterday (Wednesday 7 February) as he spoke on behalf of claimants River Action UK, that 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.” Mr Wolfe said that there is “nothing” from the EA to tell farmers “you have got to do this by this date and enforcement will be taken”. 

However, in court today the EA disputed this. Mr Streeten said that the EA “only takes action when necessary” and its “overall approach is escalating guidance from words of guidance to prosecution” which is a “normal position”. He said: “You will start with advice and guidance and escalate through to prosecution as a last resort as necessary. There is nothing in any event that is unlawful”. 

He added that the statutory guidance, published by Defra “outlines criteria that should be considered when taking enforcement action” and it is “not law” therefore EA believes it has “properly interpreted the regulation.” He expanded that for farm inspections there are checklists that have to be completed. For example, before officers go one aspect that is considered whether the farm is “near a waterbody and a conservation designated area.”.

Mr Streeten told the court that “Mr Wolfe didn't show you this” but officers have to “assess the risks arising from that” which “directs the thought process”. He said there are also post-visit letters and a farmer inspection report template which can include the EA setting out ways farmers can come into compliance such as increasing slurry storage.

He said the “best Mr Wolfe can do” is say it “uses the word ‘should’ instead of ‘must’ take steps.” He says there is “no doubt” farmers are “being told these are things you should do.” Mr Streeten added: “Read it in context that the officers have been on site with you and have had a conversation with you, the letter doesn't just drop unexpectedly. This is a follow-up.” He also says Mr Wolfe said there is no date given to become compliant however Mr Streeten argued that “there is no requirement for a date provided you work together to achieve compliance within a reasonable time frame.”

Regulation 15 of the FRfW is that Defra “may issue guidance” to the EA “in respect of its enforcement of the FRfW” and the EA “in the exercise of its functions, is required to have regard to any such guidance.” The judge was puzzled by this regulation and said it was the “elephant in the room” as it “gives rise to a different interpretation of the regulation.” However Mr Streeten responded that it is the “inevitability of the guidance.”

He went on to argue that “this is not a case where no action is being taken” as “there is a co-ordinated strategic approach” for example under the nutrient management plan, under 2018 farming regulations and on an inspector level. He said there are “numerous different factors” affecting the River Wye and when “the EA inspects the farm it inspects compliance for the whole range of regulations including nitrogen pollution regulation and environmental permit regulation.”

He said: “At a strategic level the agency is working to issue directives through regulations, a number of regimes and collaborative means” and “as a result there will be compliance”. Mr Streeten added: “This is not a case where the EA is taking no steps. The EA is taking a great number of steps and there are a great number of people who are responsible.”

This afternoon Defra is giving its evidence as an interested party in the case.