OEP Additional Evidence 2 CMS 358 16th November 2022
Office for Environmental Protection Marinet Limited
County Hall Cedar Lodge
Spetchley Road Allington
Worcester Chippenham
WR5 2NP Wiltshire SN14 6LW
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Tel. 03300 416581 Tel. 01249 653972
16th November 2022.
OEP Complaint Registration Number: CMS 358.
For the attention of: Stewart Cheeseman and Louisa Martinez Medina, OEP Complaint,
Investigation and Enforcement Team.
From: David Levy and Stephen Eades, Directors, Marinet Limited.
An Additional Response to Marinet’s response dated 4th November 2022 relating to the OEP’s request on Additional Evidence in respect of Complaint CMS 358 involving DEFRA, the Environment Agency and Natural England. The complaint concerns Pollution of the River Wye catchment due to maladministration of the law by DEFRA, the EA and NE in connection with Intensive Poultry Units in the Wye Catchment.
Dear Mr. Cheeseman and Ms. Medina,
We are writing with additional evidence to that supplied to the OEP in our letter of 4th November 2022 concerning complaint CMS 358 and the OEP’s request for additional evidence, if any, to be submitted by Marinet Limited by 1st December 2022.
This further additional evidence relates to the failure by DEFRA and the associated agencies of the Environment Agency and Natural England in their legal duty to protect the integrity of the River Wye catchment from diffuse pollution which arises primarily from manure disposal practices established by DEFRA for intensive poultry units (IPUs) operating within the River Wye catchment. Also in this supplementary submission is additional evidence concerning the dysfunctional nature of the DEFRA complaint system relating to this diffuse pollution from IPUs in the River Wye catchment.
This further additional evidence relates specifically to:
1. Evidence of Herefordshire County Council’s action requesting DEFRA to install a Water Protection Zone for the River Wye catchment using the statutory powers held by DEFRA under the Water Framework Directive, and the response from DEFRA declining to use those legal powers; thus, in turn, supporting Marinet’s evidence to the OEP that DEFRA is unresponsive to other governmental bodies – see our earlier evidence submitted in July 2022 regarding the House of Commons Environmental Audit Committee.
Also, this response by DEFRA to Herefordshire C.C. is additional evidence that DEFRA’s ‘complaint procedure’ is effectively unresponsive to the need to deliver change, despite DEFRA having legal powers and a duty to respond with corrective action to protect the ecological integrity of the Wye and its catchment.
Hence this is further evidence of the dysfunctional nature of DEFRA’s complaint procedure, evidencing that any further representation direct to DEFRA by Marinet prior to our complaint to the OEP would have yielded no productive outcome.
2. The second area of additional evidence concerns DEFRA’s design and implementation of The Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018, also known as ‘The Farming Rules for Water’ (ref. footnotes 6 and 7).
In Marinet’s present testimony it will be seen that DEFRA has designed farming rules to address diffuse pollution (i.e. agricultural run-off to watercourses of fertilisers and other chemicals) in order to meet its legal duty to address causes of pollution.
However DEFRA has designed these rules in such a way that it has exempted phosphate pollution arising from IPU manures and their associated licensed disposal regime. This is the case even when that phosphate pollution, due to IPUs, is known to be causing damage to the integrity of the River Wye SACSAC Special Areas of Conservation/SSSISSSI Site of special scientific interest and sites elsewhere of national conservation status.
Thus this evidence asserts: DEFRA has designed the Farming Rules for Water in this way knowing that the Rules will transgress DEFRA’s legal obligations to adequately protect these national conservation sites.
Also, DEFRA has legally instructed the agency (Environment Agency) which is implementing these Rules to do so in this particular way. This is so despite the knowledge of this agency that this manner of implementation will continue to result in the diffuse pollution of the River Wye SAC and its catchment, along with similar sites of national conservation elsewhere.
This evidence thus sustains the assertion by Marinet that there is a record of ineffective corrective action by DEFRA which amounts to an abandonment by DEFRA of its legal duty to protect the River Wye SAC/SSSI and its catchment.
We address now the detail relating to these two above areas of additional evidence.
Evidence arising from actions by Herefordshire County Council which ask DEFRA to address its legal responsibilities.
Herefordshire County Council, following a motion adopted by the Council calling for a Water Protection Zone to be established by DEFRA for the River Wye and its catchment, wrote on 2nd February 2022 to Rebecca Pow MP, Under Secretary of State (the ‘Minister’) at DEFRA making this specific request.1
The text of this letter from the Leader of Herefordshire County Council to the Minister at DEFRA reads:
2nd February 2022.
Dear Rebecca,
Protection Zone- River Wye and Lugg Catchment
I am writing to advise you that at a meeting of our Council last week members carefully considered and voted unanimously on a motion calling for a Water Protection Zone. This follows a similar decision of the River Wye Catchment Nutrient Management Board on the 19th January 2022.
Your department will be aware that in 2015 Fish Legal and others brought a case against DEFRA for failure to protect our rivers – the judgement in that case was that they needed to use all available regulatory tools and had 6 years to show results or a WPZ would have to follow. Those 6 years have passed. The draft RBMP (30 October 2015) states in the “Information on Mechanisms for the Water Framework Directive (WFD)” Annex, that WPZs can be designated to establish additional statutory provisions to prevent water pollution where evidence shows that existing statutory or voluntary measures have not been or are unlikely to be sufficient to meet WFD objectives.
The critical question is, has all else failed and is it likely to continue to fail?
We accept that we are dealing with a movable regulatory background. Subsequent to the 2015 case the government introduced the FR4W and this has been given a few years to bed in and start to take effect. There are concerns about the efficacy of FR4W and the EAs recent statement that they will not investigate cat 3 incidents does little to augment confidence in the regulatory response. On the Welsh side there is a regulatory gap as the new regulations are yet to be fully implemented. The other element that has changed the likely efficacy of existing regulatory and legislative controls is the research done by the University of Lancaster that shows the critical role played by legacy phosphate in the soils that is being mobilised and leaching into the river during peak events.
There has been a sustained voluntary effort and multi million pound investment in this hope but, whereas in 2014 the source apportionment told the board that the share between sewage treatment works and agricultural diffuse was 45% and 45%, the more recent apportionment data has shifted that to 25% and 66% whilst the total has remained broadly the same. Indeed, the University of Lancaster has the source apportionment at 71% agricultural diffuse against 26% sewage with an equivalent accumulation of 3000t/pa into the soils and thence into the river.
It is not unreasonable to conclude therefore that voluntary measures – whilst arguably working in individual cases – are not being effective in reducing the overall contribution from agriculture. Therefore, there are reasonable grounds to argue that the existing regulatory arrangements are insufficient within this catchment and other measures will be necessary to restore the catchment to favourable status by 2027.
Some of our farmers who are really on the leading edge of farming innovation to reduce soil loss, increase soil health and reduce pollution. They would have little to fear from a WPZ as they are doing the right thing anyway. Others want to play their part but their business model makes this unsustainable. A WPZ, or the planning for such a concept, would put pressure on all, including water companies and the supply chains our farms feed into, to play their part.
We see that the concept of a WPZ is already being used in the Poole Harbour catchment and it would appear to be having a beneficial effect. Essentially there is a glide path of nutrient reduction and if the targets are not met a WPZ will be triggered. It is important to be realistic about an agreed rate of reduction but a start must be made.
Herefordshire Council is keen to build on the unanimous support of our elected members by bringing all parties to work together. There is strong support across our county, and indeed the catchment, for taking action. Sadly, there is widespread disagreement about who is causing the problem and therefore what needs to be done to solve it. Unless this is addressed there is no prospect of progress.
I believe there is an opportunity to bring all partners together through a Phosphate Commission. This would allow a review of the evidence base and consideration of source apportionment in an open public forum before developing a renewed action plan with the full and active engagement and participation of stakeholders. I would ask you to raise this request with the inter-governmental group and seek their support to ask all statutory partners to engage with this process for the benefit of residents, business, farming and agriculture across the catchment. There is an opportunity here to create a new plan, with a clear glide path similar to the measured approach in place in Poole.
I would like to take this opportunity to thank Minister of State Chris Pincher’s for his recent offer of financial support for strategic work across the catchment. The £100k provided will be an excellent investment in our Phosphate Commission.
Some commentators have suggested that unless action is taken which has the effect of reducing pollution in the River Wye within the next two years, irreparable damage will be done. I do not want to be known as a politician who sat on their hands while an ecological disaster unfolds. I trust you do not either. The power and ability to take the necessary action is much more in your hands than mine.
I hope that you will accept our offer to work in partnership.
Kind regards,
Cllr David Hitchiner Leader of Herefordshire Council
CC Jesse Norman MP; Bill Wiggin MP Michael Gove MP; Leaders of Powys and Monmouthshire Councils; Cllr Elissa Swinglehurst, Chair- Nutrient Management Board; Simon Evans, Chief Executive- Wye and Usk Foundation; Martin Williams, Vice Chairman – National Farmers Union; Tim Ryecroft, Chief Executive Officer- Agriculture and Horticulture Development Board; James Stevens, Director for Cities and Nutrient Lead- Home Builders Federation; Dr Caroline Turner Chief Executive- Powys Council; Marian Spain, Chief Executive- Natural England; Sir James Bevan, Chief Executive- Environment Agency; Peter Perry, Chief Executive- Welsh Water; Merry Albright- HCILG All Members of the Wye Catchment Nutrient Management Board.
It is clear from this 2nd February 2022 letter from Herefordshire County Council to the DEFRA Minister that ‘legacy phosphate’ is central to the whole question of diffuse pollution of the River Wye catchment (ref. Herefordshire C.C. letter, para. 4: “. . . . the research done by the University of Lancaster that shows the critical role played by legacy phosphate in the soils that is being mobilised and leaching into the river during peak events.” .
Legacy phosphate is phosphate absorbed into and stored in soils in the Wye catchment largely as a result of repeated poultry manure spreading from local IPUs. This poultry manure disposal regime has been authored by DEFRA and is licensed in its implementation by the Environment Agency in accordance with rules established by DEFRA. The details of DEFRA’s authorship of the IPU poultry manure disposal regime are recorded in Marinet’s report Pollution in the Upper River Wye Catchment2 submitted as part of our July 2022 registration of complaint with the OEP. [Note: additional printed copies of Marinet’s June 2022 report can be supplied if required].
It is this saturation of soils in the Wye catchment with phosphate due to agricultural practices – as earlier stated, principally IPU poultry manure spreading (ref. Marinet report, op. cit.) followed by further applications of phosphate rich IPU poultry manure, especially after the soil’s saturation with phosphate has been reached – that is leading to agricultural run-off of phosphate into ditches and watercourses in the Wye catchment.
This reality is recorded in the Herefordshire C.C. letter, para 5: “There has been a sustained voluntary effort and multi million pound investment in this hope but, whereas in 2014 the source apportionment told the board that the share between sewage treatment works and agricultural diffuse was 45% and 45%, the more recent apportionment data has shifted that to 25% and 66% whilst the total has remained broadly the same. Indeed, the University of Lancaster has the source apportionment at 71% agricultural diffuse against 26% sewage with an equivalent accumulation of 3000t/pa into the soils and thence into the river.”.
The specific solution being sought by Herefordshire C.C. from DEFRA is the establishment of a Water Protection Zone (WPZ). The reasoning behind this request is that a WPZ is designed to address and control diffuse pollution in sensitive river catchments, such as that which arises from agricultural sources in the Wye attachment. DEFRA has the legal power to designate a WPZ in the River Wye catchment3.
The DEFRA Minister responded to Herefordshire C. C. on 13th April 2022.4 In para. 5 and 6 of the Minister’s reply, it states: “Moving to the issue of Water Protection Zones (WPZ) you raised in your letters, whilst a WPZ is one of the available solutions, I would stress that it is important to assess whether this is the appropriate mechanism to achieve nutrient reduction in the catchment. The
introduction of a WPZ would impose new and distinct regulatory obligations on the farmers and businesses within the catchment. This would lead to additional regulatory burdens on those operating within the WPZ in comparison to businesses in other areas of the country.
Furthermore, since a WPZ is a bespoke solution for a designated catchment, a sizeable amount of evidence would be required to design effective regulations, and a formal assessment on the impact for the agricultural industry in the area would need to be carried out. WPZs are not quick solutions; the one current WPZ in England took years to establish and only addresses a narrow range of substances – one concerning nutrient pollution would potentially be more complex and take longer to establish. Given that a WPZ would
be complex to implement and could lead to significant impacts on rural businesses in the catchment relative to those elsewhere in UK, it is our view that the same outcomes could be achieved better by making maximum use of existing regulatory and other measures being taken across England to tackle nutrient pollution in our most at risk sites.”.
Thus DEFRA has declined to use this specific legal power to address the known pollution that afflicts the River Wye SAC/SSSI.
This decision has been made by DEFRA despite knowing that this level of pollution is very seriously undermining the ecology of the watercourses in the SAC/SSSI catchment. And also knowing that the cause of this pollution is primarily (c. 71%) diffuse agricultural pollution which, in turn, is primarily caused by IPU poultry manure disposal practices in this catchment – a regime authored, superintended and ultimately regulated by DEFRA.
Therefore in the context of Marinet’s complaint CMS 358 about DEFRA to the OEP:
DEFRA has declined:
◦ To agree to the clear evidence-based request from one of the principal English governmental body in the catchment (Herefordshire C.C.) to use its legal powers – namely, create a WPZ.
◦ To solve a pollution problem which DEFRA is legally bound to address – namely, protection of the ecological integrity of the river Wye SAC/SSSI –when this is a pollution problem which DEFRA itself has effectively authored due to DEFRA’s creation and superintending of the IPU regime which is the primary cause of the diffuse agricultural pollution.
◦ Note: see footnote 2 and the June 2022 Marinet report where we have documented the role of DEFRA in the establishment of this IPU licensing and its associated poultry manure disposal regime, notably: RB209 Nutrient Management Guide, Defra, see: https://ahdb.org.uk/nutrient-management-guide-rb209 .
Thus we submit that the situation documented above regarding Herefordshire C.C. is further evidence of the failure by DEFRA to meet its legal duties to safeguard the River Wye catchment and it’s SAC/SSSI.
It is also further evidence that DEFRA declines to effectively respond to complaints in this matter made by other governmental bodies.
It is true that, upon reading DEFRA’s reply of 13th April 2022 to Herefordshire C.C., DEFRA does discuss other regulatory proposals and actions for addressing this ‘illegal situation’. However none of these are firm proposals leading to a known, proven outcome which will deliver the same level of pollution control as a Water Protection Zone. A WPZ is an established legal protective measure which is known to be able to deliver, and whose designation is within DEFRA’s power, ref. River Dee Catchment Water Protection Zone5.
Therefore if Herefordshire C.C. cannot persuade DEFRA to employ a principal pollution control instrument available to DEFRA, and Herefordshire C.C. has in effect submitted a ‘complaint’ to DEFRA about the pollution which DEFRA has the legal power to arrest, then Marinet submits to the OEP that Marinet has no chance of making any meaningful headway in complaining to DEFRA about the overall River Wye pollution and its causes and, in particular, DEFRA’s legal responsibilities to remedy this.
So Marinet believes no corrective action by DEFRA in the River Wye catchment can be secured other than by Marinet representing this matter directly to the OEP, and by submitting to the OEP for its examination the long record of dereliction of legal duties by DEFRA in this respect.
Farming Rules for Water.
On the face of things, DEFRA’s ‘Farming Rules for Water’ (FRW) are the precise instrument – a Water Protection Zone apart – required to control diffuse pollution, such as that arising from the spreading of IPU poultry manure onto agricultural fields and pastures in the River Wye catchment.
Defra’s website on this6, states
Statutory guidance : Applying the farming rules for water
Updated 16 June 2022
Applies to England
Contents
1. 1.Environment Agency enforcement approach
2. 2.Applying the rules for the use of organic manure and manufactured fertiliser to agricultural land
3. 3.Review period for guidance
This guidance should be read with ‘The Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018’ (‘the 2018 regulations’)7 – also known as the ‘Farming rules for water’. References in this page to the Farming rules for water should be read as references to the 2018 regulations. The guidance has been issued by the Secretary of State for the Department for the Environment, Food and Rural Affairs under regulation 15 of the farming rules for water.
The farming rules for water were introduced to reduce and prevent diffuse water pollution from agricultural sources. It covers applying and storing fertilisers and the management of soil and livestock. The Environment Agency enforces the farming rules for water in accordance with its published enforcement and sanctions policy and guidance.
As will be noted from above, this Statutory Guidance states: “The farming rules for water were introduced to reduce and prevent diffuse water pollution from agricultural sources. It covers applying and storing fertilisers and the management of soil and livestock. The Environment Agency enforces the farming rules for water in accordance with its published enforcement and sanctions policy and guidance.”
The actual Regulations (see footnote 7) state: [Note: Marinet advises the OEP that the text reproduced below is an extracted version from The Regulations in order to allow for focus on the relevant points in The Regulations, and the text in full may be seen through the link provided in footnote 7.]
Interpretation
2.—(1) In these Regulations—
“the Agency” means the Environment Agency;
“agricultural diffuse pollution” means the transportation of agricultural pollutants into inland freshwaters or coastal waters, or into a spring, well or borehole, where—
(a) the transportation occurs by means of soil erosion or leaching, and
(b) the agricultural pollutants may be harmful to human health or the quality of aquatic ecosystems or terrestrial ecosystems directly depending on aquatic ecosystems;
“agricultural land” means land used for agriculture for the purposes of a trade or business;
“inland freshwaters” has the meaning given in section 104 of the Water Resources Act 1991;
“land manager” means any person who has custody or control of agricultural land;
“livestock” means cattle, sheep, goats, deer, horses, poultry or pigs;
“livestock manure” means excreta from livestock or a mixture of litter and excreta from livestock, including in processed form;
“organic manure” means fertiliser derived from one or more animal, plant or human source, including—
(a) anaerobic digestates and liquors,
(d) livestock manure,
(2) References in these Regulations to “application” in relation to organic manure or manufactured fertiliser—
(a) include—
(i ) spreading on the surface of the land,
(iii) mixing with the surface layers of the soil, and
(3) In this regulation—
“agricultural pollutants” means—
(a) soil,
(b) sediment, or
(c) any substance found in soil, sediment, organic manure or manufactured fertiliser which, as a result of human activity, is directly or indirectly introduced to agricultural land, including—
(i) faecal organisms (from animal excreta),
(ii) magnesium,
(iii) nitrogen,
(iv) phosphorus,
(v) potassium, and
(vi) sulphur;
“agriculture” includes—
(a) horticulture, fruit growing, seed growing, dairy farming, livestock breeding and keeping,
(b) the use of land as grazing land, meadow land, osier land, market gardens and nursery grounds, and
Applying organic manure and manufactured fertiliser to agricultural land
4.—(1) A land manager must ensure that, for each application of organic manure or manufactured fertiliser to agricultural land, the application—
(a) is planned so that it does not—
(i) exceed the needs of the soil and crop on that land, or
(ii) give rise to a significant risk of agricultural diffuse pollution, and
(b) takes into account the weather conditions and forecasts for that land at the time of the application.
Thus as can be seen, these Regulations (Farming Rules for Water) issued by DEFRA, and enforced by the Environment Agency, are an ideal legal instrument for addressing the diffuse pollution arising from IPU poultry manure in the River Wye catchment.
However on a fuller reading of the Statutory Guidance (see footnote 6) DEFRA’s guidance states:
2.2 Assessment of crop and soil need when planning
Land managers should plan to avoid significant risk of diffuse agricultural pollution. This includes not exceeding the needs of the soil and crop on the land.
Land managers should consider soil and crop need for nitrogen (N) based on an annual crop cycle.
As a general guide, land managers should plan to avoid applying organic manures that raise the Soil Phosphorus Index (soil P 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
Examples of when it would not be reasonably practicable to do so include if a farm:
• produces and applies its own organic manure to its own land and cannot reasonably take measures to treat or manage the manure (for example, if it exports it) to avoid applications that risk raising the soil P index level of soil above crop and soil need target levels over a crop rotation
• imports organic manure as part of an integrated organic and manufactured fertiliser system and cannot reasonably import organic manures that would not risk raising the soil P index level of the soil above crop and soil need target levels over a crop rotation.
As can be seen, this Statutory Guidance states [Marinet’s italicised text below reflects the essential features of significance contained with the Guidance itself, as recorded above]:
As a general guide, land managers should plan to avoid applying organic manures that raise the Soil Phosphorus Index (soil P 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
Examples of when it would not be reasonably practicable to do so include if a farm:
• produces and applies its own organic manure to its own land and cannot reasonably take measures to treat or manage the manure (for example, if it exports it) to avoid applications that risk raising the soil P index level of soil above crop and soil need target levels over a crop rotation
Thus it is clear: DEFRA is exempting the application of excess phosphate to agricultural land – such as in the River Wye catchment and its IPU manure disposal regime – from the Farming Rules for Water. This is being done on the grounds that ‘it would not be reasonably practicable’ to separate out the phosphate content from the manure.
Note: This is in the context of earlier regulation by DEFRA which fails to limit the maximum level of phosphate which may be applied to agricultural soils under RB209 Nutrient Management Guide, Defra, see: https://ahdb.org.uk/nutrient-management-guide-rb209 .
RB209 guidance states that there is no upper legal limit for the maximum application of phosphate. The implications of DEFRA’s RB209 guidance have been earlier set out for the OEP in the Marinet report Pollution in the Upper River Wye Catchment, (ref footnote 2).
The evidence reinforcing Marinet’s conclusion concerning the Farming Rules for Water’s exemption of phosphate application is contained in correspondence made available to us by Andrew McRobb, Herefordshire CPRE (Council for the Protection of Rural England).
This evidence is contained within correspondence between the Environment Agency and Richard Tyler (Founder and joint-Co-ordinator of the Save the Wye Campaign), Kate Speke (Wye Usk Foundation), and Andrew McRobb (CPRE Herefordshire). This correspondence during 2022 with the Environment Agency – the enforcement agency for Farming Rules for Water – sought to confirm that excessive applications of phosphate are exempt from the FRW Regulations under the terms of statutory guidance from DEFRA to the Environment Agency.
From: Engagement Westmids [mailto:Engagement_WestMids@environment-agency.gov.uk]
Sent: 19 July 2022 11:03
To: Richard Tyler <email hidden; JavaScript is required>
Cc: Whitehouse, Emma <email hidden; JavaScript is required>; Kate Speke <email hidden; JavaScript is required>; Andrew CPRE Hfd <email hidden; JavaScript is required>
Subject: RE: Our Ref: GE20095: FRfW
Dear Richard
Thank you for your email of 16 June raising questions about phosphorus applications under the terms of the Secretary of State’s Statutory Guidance to the Environment Agency. Please accept my apologies for the length of time it has taken to respond to your query. I have contacted the relevant colleagues and teams both locally and nationally to gather the following response.
The Secretary of State’s Statutory Guidance advises the Environment Agency to not normally enforce if land managers plan to raise P Indices above target levels because they cannot reasonably prevent doing so and they take appropriate precautions to mitigate against the risk of diffuse agricultural pollution.
The Statutory Guidance does not change the law and all applications must still be planned and must be based on crop and soil need with the results of soil sampling and analysis taken into account.
It does, however, mean that we would not normally enforce if the P Index is already high and, in the scenario you suggest, that it would be unreasonable to expect them to strip that P out of the manure.
The reasonable precautions we expect land managers to take are all those already set out in the Farming Rules for Water as well as observing the time restrictions for high readily available nitrogen (RAN) organic manures and establishing cover crops set out in the Statutory Guidance. We would expect them to have taken into account the slope of the land, the proximity to waters, the soil type and condition of the land and the presence and condition of any land drains. They should be checking equipment for leaks and correct calibration, incorporating materials within 12 hours of, or as soon as possible after, its application, and checking the organic matter and moisture levels of the soil. We will continue to advise farmers that raising the P index beyond target values is neither good agricultural practice nor sustainable and that we will be looking for them to run down reserves of soil P.
The Secretary of State’s Statutory Guidance makes no additional provision for designated protected areas.
I hope you find this information useful, please do get in touch using the contact details below if you have any further questions or queries.
Kind Regards
Nathan
Nathan Harrison | Customers & Engagement Specialist | West Midlands
Environment Agency | Sentinel House, 9 Wellington Crescent, Lichfield, WS13 8RR
As can be seen, the Statutory Guidance from DEFRA to the EA states, para. 2 to 4 (Note: emphasis in bold added by Marinet):
“The Secretary of State’s Statutory Guidance advises the Environment Agency to not normally enforce if land managers plan to raise P Indices above target levels because they cannot reasonably prevent doing so and they take appropriate precautions to mitigate against the risk of diffuse agricultural pollution.
The Statutory Guidance does not change the law and all applications must still be planned and must be based on crop and soil need with the results of soil sampling and analysis taken into account.
It does, however, mean that we would not normally enforce if the P Index is already high and, in the scenario you suggest, that it would be unreasonable to expect them to strip that P out of the manure.”
Thus the Environment Agency has confirmed the above conclusion of Marinet.
Namely, DEFRA has exempted agricultural lands, such as in the River Wye catchment and the associated IPU manure disposal practices, from the provisions of ‘The Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018’ (Farming Rules for Water), [see footnote 7 for text of the Regulations).
Hence Marinet believes that this phosphate exemption by DEFRA sustains Marinet’s representation to the OEP that DEFRA is acting in a manner which is wilfully neglectful of its legal duty to safeguard the ecological integrity of the River Wye SAC/SSSI and to take sufficient corrective action to restore the SAC/SSSI’s ecological integrity.
This is in the context where DEFRA is the ultimate statutory custodian of the ecological integrity of this SAC/SSSI, and is the principal governmental body upon whose authority those legal powers of protection may be deployed.
In summary, this additional submission of evidence to the OEP is that:
◦ Not only has DEFRA , being the author and ultimate superintendent of the IPU regime in the River Wye catchment, acted illegally in failing to address the adverse consequences of this IPU regime upon the river Wye SAC/SSSI; but also,
◦ DEFRA has compounded this evidence of illegal conduct by failing to implement corrective action in the River Wye catchment in respect of phosphate pollution when DEFRA is in full knowledge of the damage that this phosphate pollution is causing; and further,
◦ DEFRA has instructed the Environment Agency, the enforcement agency for the Farming Rules for Water Regulations, to take no action by means of the Farming Rules for Water to limit phosphate application to land from IPU manures; therefore,
◦ Marinet submits that this is clear and wilful neglect by DEFRA of its legal duties.
In the matter of the CPRE evidence made available to Marinet, Andrew McRobb of CPRE Herefordshire has advised us that he will be writing to the OEP on behalf of CPRE Herefordshire to inform the OEP of CPRE Herefordshire’s support for Marinet’s complaint, CMS 358, and that he personally has made the Environment Agency reply of 19th July 2022 available to Marinet as part of CPRE Herefordshire’s support for Marinet’s complaint.
We would be willing to respond to the OEP on any point concerning the additional evidence above.
Will you please confirm your receipt of this additional evidence presented by Marinet Limited, dated 16th November 2022.
Yours sincerely
Stephen Eades
On behalf of Marinet
01249 653972
cc. David Levy and Brian Morgan, Marinet.
Andrew McRobb, Herefordshire CPRE.
Andrew McRobb: Trustee & Director CPRE Herefordshire, Paradigm Marketing Ltd,
Biddlestone, Llangarron, Ross-on-Wye HR9 6NT. Tel: – 44 (0)333 444 1948
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