OEP Additional Evidence 3 CMS 358 26th November 2022
Office for Environmental Protection
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Worcester
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Tel. 03300 416581
Marinet Limited
Cedar Lodge
Allington
Chippenham
Wiltshire SN14 6LW
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Tel. 01249 653972
26th November 2022. By email and Royal Mail.
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 responses dated 4th and 16th November 2022 relating to the OEP’s request on Additional Evidence in respect of Complaint CMS 358: Submission 23rd Nov 2022 to the OEP by CPRE Herefordshire of evidence in support of CMS 358.
Dear Mr. Cheeseman and Ms. Medina,
We wish to bring certain points to your attention relating to the submission, dated 23rd November 2022, to the OEP by CPRE Herefordshire in support of Marinet complaint CMS 358. The CPRE submission is appended at the foot of this submission for your reference.
◦ CPRE submission para. 1 : “We believe DEFRA, The Environment Agency (EA) and Natural England (NE) have had extensive time to consider and implement effective solutions to the pollution of the Wye Catchment that is destroying the ecosystems. As not one initiative has had a mitigating effect on the Wye Catchment we hold Government responsible for a lack of duty and care for the environment. Protection of the environment is the Governments legal duty.”
Marinet observes: The CPRE Herefordshire submission sustains the Marinet belief that DEFRA, the EA and NE have had an extended period of time, essentially over the last 10 years as this problem has emerged (see evidence of this time scale in Marinet’s report “Why are we killing the River Wye, and when will it stop”). Also, the CPRE submission sustains the belief that DEFRA, the EA and NE have a legal duty to solve this pollution problem, but have failed to respond adequately.
◦ CPRE submission para. 2 : “Our CS programme was initiated due to the lack of any impactful action or a timed and measurable plan to reduce nutrient pollution in the Wye Catchment. The Nutrient Management Board (NMB) set up in 2014 along with the Natural England Site Improvement Plan SIP199 in 2014 together have had 8 years to come forward with suitable plans, with time frames to improve the ecological condition of the Wye. During this period no workable plan has been provided or implemented and the condition of the Wye has worsened. CPRE Herefordshire asked why this was the case and we were told that the resources of the Environment Agency could not provide sufficient Data to formulate such a plan. Plus, there was also no single person within the EA and NE responsible for delivery and held accountable for such a plan.”
Marinet observes: The CPRE Herefordshire evidence sustains Marinet’s belief that neither the Environment Agency nor Natural England have responded adequately over an extended time period, and we note that neither Agency has a single person responsible for delivery of a solution plan. Also DEFRA has made no intervention as superintending Department of State to correct this deficiency.
Marinet also observes: In their para. 2, CPRE Herefordshire state: “Our CS programme was initiated due to the lack of any impactful action or a timed and measurable plan to reduce nutrient pollution in the Wye Catchment.” The lack of engagement by Natural England and the Environment Agency in monitoring the precise ecological condition of the River Wye and its catchment is the reason for this detailed Citizen Science (CS) monitoring and collection of data. Concerned citizens are doing the work which should be done by the statutory agencies, and citizens are doing this because these agencies are failing to perform their statutory role. This reality is further evidence by the statement of CPRE Herefordshire in their para.6: “There has been no baseline established since 2014 as to the ecological status of the Wye Catchment. This should have been established by Natural England. Since no baseline exists how is it possible to assess the health of the catchment year on year?”.
◦ CPRE submission para. 3 : “To date regardless of all the data [CS data collected by CPRE and others] being captured there is still no actions being suggested that are measurable and that will improve the health of the Wye Catchment.
It is the lack of planned action by DEFRA, the Environment Agency and Natural England is the reason that CPRE Herefordshire fully supports the case by Marinet CMS 358.”
◦ CPRE submission para. 3: “There are three significant issues that stand out.
1.0 The Farming Rules for Water 2018 are not being implemented as written but are being interpreted by the EA under instruction by DEFRA after lobbying by the NFU to allow excessive application of Phosphate. Even the Government instructed the EA not to enforce the rules for the first two years see: https://committees.parliament.uk/oralevidence/10238/html/
This is adding to the Total P pollution as presented by the comprehensive papers by Leeds and Lancaster University highlighting the considerable Legacy P pollution in Herefordshire soil. By ignoring pollution by phosphate, the Wye catchment is heading to an eutrophicationeutrophic Water (freshwater or saline) is said to be eutrophic when all normal life in it has died due to oxygen starvation. The process is usually caused by excess nutrients present in the water which causes an explosion in algal species (known as an algal bloom). As this algal bloom dies the decaying plant material (algae) falls to the bed of the watercourse where it is consumed by bacteria. This abundance of decaying material in turn causes a population explosion in the bacteria. However, bacteria (unlike plants) consume oxygen and the population explosion of bacteria strips all the dissolved oxygen out of the water with the result that all other aquatic species who are reliant on the dissolved oxygen for breathing (e.g. fish, larvae, insects) are asphyxiated and die. When this process occurs, a body of water is said to eutrophic. A body of water that is partially eutrophic is where this process (oxygen starvation) has fallen short and/or not yet reached its fullest extent. tipping point. This is in complete conflict with the Wye’s status as a SSSISSSI Site of special scientific interest, AONB and SACSAC Special Areas of Conservation. Regulatory agencies are ignoring what every wildlife and environmental NGO can identify and are commenting on.”
Marinet records the following references for the OEP’s benefit:
• Reference https://committees.parliament.uk/oralevidence/10238/html/ relates to the House of Commons Environment, Food and Rural Affairs Committee and this Committee’s Hearing of Oral Evidence on 17th May 2022 from the Chair and CEO of the Environment Agency. The questioning relating to Farming Rules for Water is covered at Questions 37-41.
• Reference to the Farming Rules for Water:
• DEFRA publication: Spreading organic manure to soil on agricultural land RPS252, issued 3rd August 2021 and withdrawn 29th March 2022 – see footnote 1.
• DEFRA publication: Applying Farming Rules for Water, issued 16th June 2022 – see footnote2. This is the new DEFRA Guidance which replaces RPS 252 issued 3rd August 2021 and withdrawn 29th March 2022. This new DEFRA Guidance allows for the continued application of manures containing phosphate where removal of phosphate “is not
reasonably practicable to do so.” – see section 2.2 in particular.
Marinet observes: CPRE Herefordshire perceive that DEFRA has modified Farming Rules for Water in a manner that continues to allow phosphate rich poultry manure from IPUs to be spread on fields in the River Wye catchment, knowing that the soils in these fields has reached phosphate saturation and therefore continued application of these manures will lead to phosphate run-off into the watercourses of the River Wye catchment.
◦ CPRE submission para. 5: “The second issue . . . is the lack of a clear regulatory baseline from which farmers and the regulator can work. There is too much interpretation. Even the NFU are calling for a baseline because all farmers even the good ones are being tarnished with the overall brushstroke that 70% of pollution in the catchment comes from agriculture. Warnings by the EA to farmers are applied in extreme cases but not a single prosecution. We are told by the EA that the legal teams in DEFRA are so small that the EA are instructed to avoid prosecutions. If this is the case we will never set up a system that is clear to all and upon which the EA can manage agriculture in the Wye Catchment and reduce diffuse pollution.”
Marinet observes: Even if the Environment Agency has the resources to conduct farm inspections at a seriously adequate level – see evidence from the EA to the EFRA Committee of the House of Commons https://committees.parliament.uk/oralevidence/10238/html/ along with CPRE Herefordshire evidence in para. 8 – it is almost impossible for the Environment Agency to undertake a prosecution in the River Wye catchment relating to phosphate pollution of the watercourses due to IPU practices because DEFRA’s Farming Rules for Water (16th June 2022 revision) legally allow the continued local spreading of IPU poultry manures. The same circumstances apply to Natural England should this agency contemplate any enforcement action regarding this pollution.
◦ CPRE submission para. 6: “There has been no baseline established since 2014 as to the ecological status of the Wye Catchment. This should have been established by Natural England. Since no baseline exists how is it possible to assess the health of the catchment year on year? We suggest that the appropriate agencies are not fulfilling their roles in monitoring ecological health or condition. This is part of the Government function that is failing and a reason why no measurement of progress is known or established in the last eight years.”
Marinet observes: CPRE Herefordshire state that “There has been no baseline established since 2014 as to the ecological status of the Wye catchment”. Certainly Marinet has not been able to discover any such baseline set by NE, or by the EA and DEFRA. This is why Marinet has had to do its own research and recording of the ecological condition of the watercourses in the Upper Wye catchment, see this specific evidence recorded in the Marinet report, “Why are we killing the River Wye, and when will it stop”.
◦ CPRE submission paras. 7 to 8: “It is now time that the Government and its agencies were asked to stand up and be counted in a way that sets performance targets and timelines not simply kicking things down the road for future administrations.
There are now a multitude of reports including your own press releases that all support the Marinet Case. There are a number of solutions that have been suggested which have not been taken up for various reasons: – Formation of a WPZ, the Banning of spreading chicken manure, Exporting chicken manure, a Phosphate Protection Zone, Financial incentives to reduce the Chicken Industry in Herefordshire, and more and better Farm inspections.
In Scotland on the River Ayr the Scottish Environmental Protection Agency (SEPA) faced a similar issue with pollution from intensive cattle units polluting the Ayr Catchment. In 2010 they looked at various solutions eventually allocating funds for a new and regular farm inspection regime. Once the team was established and operational they went to all the farms in the catchment once per month to help farmers understand the rules and implement them. On each visit they expected to see agreed changes and improvements. As a result, the farm compliance went from 34% in 2010 to 99% today. This had considerable impact on nutrient loss to river and cleaned up the whole catchment. Why was this not seen as best practice and implemented in the Wye? The initial reply was lack of resource so why not test this on the Lugg or the Arrow? (Two smaller catchments within the Wye Catchment) It suggests that the Government is not looking for solutions but hiding behind process and not seeking positive impacts.”
Marinet observes for the OEP’s benefit:
With reference to CPRE para. 8 : The Marinet report “Why are we killing the River Wye, and when will it stop” (part of Marinet’s evidence base to the OEP) features strongly the solution to this problem of pollution of the Upper Wye catchment and its ecological degradation. We ask the OEP to note our recommendation, based on extensive data analysis in our report, that IPU (intensive poultry unit) manure can be removed from the catchment, and cease being spread on catchment fields, by means of the establishment of anaerobic digestion (AD) facilities in the catchment and the subsequent conversion/use of these AD’s digestate by the national fertiliser companies as a nationwide agricultural fertiliser. This provides a relatively low energy alternative means of production for national agricultural fertiliser manufacture when compared to existing fertiliser production systems. And simultaneously, it solves the nitrate/phosphate pollution problem in the River Wye catchment.
Marinet also observes: The action taken in Scotland by the Scottish Environment Protection Agency (SEPA) in respect of pollution in the River Ayr catchment due to intensive livestock husbandry cattle is illustrative of the type of remedial action that DEFRA and the Environment Agency in England could undertake in order to meet their legal duties. As CPRE Herefordshire observes, why has DEFRA and the EA not undertaken similar action in the River Wye catchment? This failure to so act, when the example of such action and its effectiveness exists elsewhere in the UK, is additional evidence supporting the belief that DEFRA is neglectful of its legal duty and unprepared to assist either the Environment Agency or Natural England in the performance of their own legal duty in this matter.
◦ CPRE submission para. 10: “We believe urgent action is necessary not talks or meetings which to date have not improved the health of the Wye Catchment in any way. The Government needs to be held to account and even after an excellent Environmental Committee Audit report and questions in Parliament by the Herefordshire MP Jesse Norman environmental pollution in the Wye Catchment is still being ignored.”
Accordingly, Marinet submits to the OEP that the CPRE Herefordshire submission is strong evidence of the substance pertaining to complaint CMS 358; and, that the CPRE evidence demonstrates that DEFRA, the Environment Agency and Natural England are all clearly in breach of their legal duty to sustain the ecological integrity of the Wye SAC/SSSI and its river catchment.
Yours sincerely
S. D. Eades
Appendix:
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CPRE Herefordshire submission, 23rd November 2022, to the Office for Environmental Protection in support of Marinet Complaint CMS 358.
On 23/11/2022 16:17, Andrew McRobb wrote:
For the attention of: Stewart Cheeseman and Louisa Martinez Medina, Office for Environmental Protection Complaint, Investigation and Enforcement Team. Ref Case CMS 358 opened by Marinet.
CPRE Herefordshire supports the Marinet complaint, CMS 358. We have shared with Marinet much of our experience, evidence and reasoning gathered over the past three years and during our initiative in setting up a data gathering Citizen Science (CS) programme. We believe DEFRA, The Environment Agency (EA) and Natural England (NE) have had extensive time to consider and implement effective solutions to the pollution of the Wye Catchment that is destroying the ecosystems. As not one initiative has had a mitigating effect on the Wye Catchment we hold Government responsible for a lack of duty and care for the environment. Protection of the environment is the Governments legal duty.
Our CS programme was initiated due to the lack of any impactful action or a timed and measurable plan to reduce nutrient pollution in the Wye Catchment. The Nutrient Management Board (NMB) set up in 2014 along with the Natural England Site Improvement Plan SIP199 in 2014 together have had 8 years to come forward with suitable plans, with time frames to improve the ecological condition of the Wye. During this period no workable plan has been provided or implemented and the condition of the Wye has worsened. CPRE Herefordshire asked why this was the case and we were told that the resources of the Environment Agency could not provide sufficient Data to formulate such a plan. Plus, there was also no single person within the EA and NE responsible for delivery and held accountable for such a plan.
Given these facts CPRE Herefordshire said we would put boots on the ground and gather whatever data was required. A project was set up by Cardiff University, the EA and the Wye & Usk Foundation to establish five groups of CS to gather data and make it available to the EA. This is now happening and CPRE Herefordshire along with other groups now provides thousands of data readings all available to the EA.
To date regardless of all the data being captured there is still no actions being suggested that are measurable and that will improve the health of the Wye Catchment.
It is the lack of planned action by DEFRA, the Environment Agency and Natural England is the reason that CPRE Herefordshire fully supports the case by Marinet CMS 358.
There are three significant issues that stand out.
1.0 The Farming Rules for Water 2018 are not being implemented as written but are being interpreted by the EA under instruction by DEFRA after lobbying by the NFU to allow excessive application of Phosphate. Even the Government instructed the EA not to enforce the rules for the first two years see: https://committees.parliament.uk/oralevidence/10238/html/
This is adding to the Total P pollution as presented by the comprehensive papers by Leeds and Lancaster University highlighting the considerable Legacy P pollution in Herefordshire soil. By ignoring pollution by phosphate, the Wye catchment is heading to an eutrophication tipping point. This is in complete conflict with the Wye’s status as a SSSI, AONB and SAC. Regulatory agencies are ignoring what every wildlife and environmental NGO can identify and are commenting on.
1.1 Just today CPRE Herefordshire has received under a FOI request a vast amount of correspondence between the DEFRA and the NFU on Farming Rules for Water (this will now take some time to analyse). It is very apparent that the NFU was consulted and engaged in considerable communication on the subject. The NFU as a lobbyist on behalf of the Farming community we might expect them to work hard on behalf of land owners. What is very evident is that the same consultation was not undertaken with concerned environmental groups and thus it was very one sided. This may explain why the rules are not being enforced.
2.0 The second issue whilst connected to the above is the lack of a clear regulatory baseline from which farmers and the regulator can work. There is too much interpretation. Even the NFU are calling for a baseline because all farmers even the good ones are being tarnished with the overall brushstroke that 70% of pollution in the catchment comes from agriculture. Warnings by the EA to farmers are applied in extreme cases but not a single prosecution. We are told by the EA that the legal teams in DEFRA are so small that the EA are instructed to avoid prosecutions. If this is the case we will never set up a system that is clear to all and upon which the EA can manage agriculture in the Wye Catchment and reduce diffuse pollution. Other evidence from the EA and Natural England recorded in the NMB reports state that ““Despite over a decade of advisory visits in the Axe catchment, there has been no significant improvement in farming practices and the river had continued to decline 95% of farmers did not comply with storage regulations and 49% of farms were polluting the river”
3.0 We have witnessed protracted discussions over nutrient levels with arguments waging as to who takes the blame on the English side or suggesting the pollution comes from Wales. Trading data is only one consideration. There has been no baseline established since 2014 as to the ecological status of the Wye Catchment. This should have been established by Natural England. Since no baseline exists how is it possible to assess the health of the catchment year on year? We suggest that the appropriate agencies are not fulfilling their roles in monitoring ecological health or condition. This is part of the Government function that is failing and a reason why no measurement of progress is known or established in the last eight years.
It is now time that the Government and its agencies were asked to stand up and be counted in a way that sets performance targets and timelines not simply kicking things down the road for future administrations.
There are now a multitude of reports including your own press releases that all support the Marinet Case. There are a number of solutions that have been suggested which have not been taken up for various reasons: – Formation of a WPZ, the Banning of spreading chicken manure, Exporting chicken manure, a Phosphate Protection Zone, Financial incentives to reduce the Chicken Industry in Herefordshire, and more and better Farm inspections.
In Scotland on the River Ayr the Scottish Environmental Protection Agency (SEPA) faced a similar issue with pollution from intensive cattle units polluting the Ayr Catchment. In 2010 they looked at various solutions eventually allocating funds for a new and regular farm inspection regime. Once the team was established and operational they went to all the farms in the catchment once per month to help farmers understand the rules and implement them. On each visit they expected to see agreed changes and improvements. As a result, the farm compliance went from 34% in 2010 to 99% today. This had considerable impact on nutrient loss to river and cleaned up the whole catchment. Why was this not seen as best practice and implemented in the Wye? The initial reply was lack of resource so why not test this on the Lugg or the Arrow? (Two smaller catchments within the Wye Catchment) It suggests that the Government is not looking for solutions but hiding behind process and not seeking positive impacts.
Every day we gather evidence and until we see mass soil as well as water testing especially for Total Phosphorous not just Phosphate we will never know the true baseline of the pollution we face.
In conclusion the paper submitted by Marinet has our full support. We have made available to Marinet the email from the Environment Agency, dated 19th July 2022 to Richard Tyler (Save the Wye Campaign), Kate Speke (Wye Usk Foundation) and Andrew McRobb (CPRE Herefordshire) concerning the statutory guidance from DEFRA to the EA exempting phosphate emissions from manure applications to agricultural land where removal of that phosphate would be ‘unreasonable’. How this conclusion can stand as the Wye dies is remarkable.
We believe urgent action is necessary not talks or meetings which to date have not improved the health of the Wye Catchment in any way. The Government needs to be held to account and even after an excellent Environmental Committee Audit report and questions in Parliament by the Herefordshire MP Jesse Norman environmental pollution in the Wye Catchment is still being ignored.
Thank you for considering our submission. Please confirm receipt of this email.
Kindest Regards
Andrew McRobb – Trustee & Director CPRE Herefordshire
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