OEP Additional Evidence CMS 358 4th 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
4th 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.
Marinet response to OEP 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 of Intensive Poultry Units in the Wye Catchment.
Dear Mr. Cheeseman and Ms. Medina,
We write further to your advice to us of 28th July 2022 notifying us of the OEP’s formal registration of our complaint (CMS 358), and your advice of 8th September 2022 asking for submission by Marinet Limited by 1st December 2022 of any additional evidence in this specific matter. We are now responding to the 8th September request.
It is worth restating very briefly the position as it currently stands regarding evidence.
Marinet believes that previously submitted evidence to the OEP is very clear : it reveals that not only is DEFRA in breach of its legal duty to safeguard the integrity of the River Wye and its catchment, but also that DEFRA’s complaint procedure regarding the substance of this matter is dysfunctional.
This dysfunctionality is evidenced by the clear, documented evidence which Marinet submitted to the House of Commons Environmental Audit Committee (EAC) in its 2020-2021 investigation into Water Quality in Rivers. This evidence from Marinet featured the nature of pollution being caused by intensive poultry units (IPUs), the role that DEFRA has played in the establishment of this regime, and the responsibility that DEFRA has for attending to and for arresting this adverse environmental impact. This evidence was submitted by Marinet to the EAC in February and March 2021 and in its final report the EAC recommended clearly that strong corrective action is required by government (DEFRA, the Environment Agency and Natural England) regarding the licensing and siting of IPUs in sensitive river catchments (e.g. the Wye). In DEFRA’s reply to the EAC in May 2022 DEFRA declined to take any such action. This is clearly documented for the OEP in our submission, July 2022 (CMS 358).
We believe it needs to be stated clearly that if the highest legislative and, effectively, judicial authority in the land, Parliament, renders what is a clear complaint to government (DEFRA) about IPU policy, and this complaint is unheeded and unactioned by DEFRA, then we believe this demonstrates clearly two things. Firstly, that DEFRA’s complaint system is unresponsive towards its legal duties, and thus dysfunctional. Second, that any subsequent complaint by Marinet to DEFRA after DEFRA’s reply to the House of Commons Environmental Audit Committee in May 2022 would have had no purpose and be would have been meaningless in its outcome if undertaken. Hence Marinet’s submission to the OEP in July 2022.
In parenthesis, and before we move forward to address the substance of this present submission to the OEP and its request for additional evidence, we refer and reprise very briefly the legal responsibilities, role and effectiveness of the Environment Agency (EA) and Natural England (NE).
Marinet’s complaint (CMS 358) also embraces the legal responsibilities of the EA and NE in this matter, and their respective failures to fulfil those legal responsibilities. However although the EA and NE’s responsibilities are very real in legal/judicial terms, it would be a misrepresentation of practical reality not to observe that both of these agencies, although operating at ‘arm’s length’ from government (DEFRA), are effectively subordinate to DEFRA. This is because DEFRA controls their budgets, is directly influential in the appointment of their Boards, and is clearly influential in determining their practical policy decision-making (e.g. DEFRA’s advice to the EA and others on the practical implementation of Farming Rules for Water regulations) – albeit at ‘arm’s length’. Thus although Marinet’s complaint (CMS 358) submits that the EA and NE have fallen down substantially in the proper delivery of their legal duties, their subordinate status to DEFRA in this matter has to be recognised in practical terms. Their ability to act in practical terms is effectively compromised. For example, they have no power to determine policy over licensing, siting or disestablishment of IPUs despite being aware of clear evidence that current policy and practice is damaging. Policy decisions on such matters are the province of DEFRA. It is for this reason that we place DEFRA as the centre of focus of our complaint.
To turn now to the matter of additional evidence, as requested.
We have recently been in conversation with Charles Watson, CEO of the River Action1 and Mr. Watson has informed Marinet of a letter which his organisation has sent on the 3rd March 2022 to Rebecca Pow MP, Minister of State for Nature Recovery and the Domestic Environment at DEFRA. This letter specifically addresses the severe pollution currently being caused to watercourses in the River Wye catchment, the central role of IPUs (along with other forms of intensive animal husbandry) as a direct cause of this pollution, and the wholly inadequate nature of actions taken by DEFRA to date, including voluntary farmer- based pollution mitigation measures supported by DEFRA, to alleviate and remediate the pollution and the severe damage to the Wye SACSAC Special Areas of Conservation/SSSISSSI Site of special scientific interest. Most importantly, this River Action letter to the Minister, Rebecca Pow MP, sets out a number of clear remedial actions which could, and should, be taken by DEFRA in order to address the illegal pollution currently characterising the River Wye catchment due to intensive poultry husbandry. The River Action recommendations to DEFRA state:
“. . . . it is our view that voluntary farmer-based initiatives will never adequately resolve the river pollution crisis on the Wye. Instead, we call on you to support the immediate implementation of a new plan on a catchment-wide basis with the Environment Agency and Natural Resources Wales working in close collaboration. This must include:
1. A planning moratorium on the construction of new (or expansion of existing) intensive livestock production units (poultry, pigs and bovine), and on the construction of any new anaerobic digestors (ADs) unless their digestate outputs are nutrient-neutral.
2. A requirement for all Intensive Poultry Units (IPUs) within the Wye catchment to have approved by the end of 2022 a Manure Management Plan (MMP), to be fully implemented by the end of 2023, whereby sufficient chicken litter, as assessed by independent scientists, is exported out of the catchment to UK locations with a phosphate deficit, to reduce the phosphate excess in both soils and rivers within the Wye catchment.
3. A requirement for all free-range egg producing IPUs to have a Nutrient Runoff Mitigation Plan (NRMP) approved by the end of 2022, to be implemented by the end of 2023, whereby water courses are protected from nutrient run-off from chicken ranges by nature-based solutions.
4. A significant reduction in ‘number of bird’ thresholds for IPUs coming within the permitting jurisdictions of the EA and NRW to be implemented over the next five years on a progressive sliding scale, thus bringing medium and smaller sized IPUs within the scope of environmental regulations.
5. A requirement for all watercourses within the Wye catchment to be protected by continuous river buffers of a minimum of 10 metres, providing a nature-based separation zone between all agricultural activities and running water.
6. The allocation of additional funding by the UK and Welsh Governments to the Environment Agency and Natural Resources Wales to a) conduct inspections of all IPUs and ADs to ensure MMPs and NRMPs are approved and implemented, and b) conduct an annual audit to ensure they are adhering to the provisions of their respective MMPs and NRMPs.
7. Any non-compliance to result in the closure of the IPU or AD in question until compliance is demonstrated and reapproval obtained.
With some now estimating there are just a few years left before the Wye is irreversibly damaged, it is our firm belief that nothing less than the scale of action outlined above has any hope of preventing the destruction of this iconic river.
We urge you to support the immediate implementation of the Plan to Save The Wye and would be delighted to meet with you to discuss further.
For information, we are also copying this letter to the local MPs whose constituencies are most affected.”
This letter of 3rd March 2022 to the DEFRA Minister from River Action was co-signed by the following organisations: Radnorshire Wildlife Trust, Gwent Wildlife Trust, Herefordshire Wildlife Trust, Salmon and Trout Conservation, CPRE Herefordshire, CPRE Brecon and Radnor, Friends of the Upper Wye, Friends of the Lower Wye, Friends of the Lugg, Save the Wye Coalition, Lugg Citizen Science Monitoring Network Group, River Dore Citizen Science Group and Golden Vale Action Group.
Charles Watson, River Action, has informed Marinet that this March 2022 letter to the DEFRA Minister was neither acknowledged upon receipt by the Minister nor replied to by the Minister. Note: this failure to respond by the Minister is in the context where local MPs whose are most affected were informed by River Action of the letter to the DEFRA Minister.
Charles Watson, River Action, has also informed Marinet that River Action sent, two months later, a further letter to the same DEFRA Minister on 28th April 2022. This reminded the Minister of the letter sent on 3rd March, restated the actions DEFRA needs to take to regularise the illegal situation that pertains due to IPU policy as currently delivered by DEFRA in the Wye catchment, and offers to meet with the Minister to discuss these matters.
Selected MPs were also informed of this additional April 2022 letter.
Charles Watson, River Action has also informed Marinet that this 28th April 2022 letter to the DEFRA Minister was neither acknowledged upon receipt by the Minister nor replied to by the Minister.
Copies of both of these River Action letters are attached here for the OEP’s benefit.
In our recent conversations with Charles Watson, River Action, Mr. Watson has informed Marinet:
◦ that River Action supports our complaint (CMS 358) to the OEP in respect of DEFRA;
◦ that River Action is to happy to offer its letters of March and April 2022 to the DEFRA Minister in support of the Marinet complaint;
◦ that the failure of the DEFRA Minister to either acknowledge or reply to River Action and co-signatories is evidence of the dysfunctional nature of both the DEFRA approach to the IPU issue and of DEFRA’s complaint procedures in this matter;
◦ that River Action will be writing to the OEP to confirm this view is held by River Action,
◦ and, that River Action has granted its consent to Marinet for the submission by Marinet of these March and April letters to the OEP as supplementary evidence in respect of complaint CMS 358.
Accordingly in this matter of supplementary evidence requested of Marinet by the OEP, Marinet believes that this present submission demonstrates:
◦ that Marinet is not alone among environmental non-governmental organisations (ngos) and citizen science action/monitoring groups in believing that IPUs are a principal cause of pollution in the River Wye catchment, and that DEFRA holds a central legal responsibility both for the development of this situation and subsequent action for its remediation.
◦ that this new evidence – failure by DEFRA to respond to the River Action and associated ngo complaint in March/April 2002 concerning the role of IPUs in the pollution of the River Wye catchment – confirms Marinet’s belief and conclusion, following the failure of DEFRA in May 2002 to respond to very similar concerns formally expressed to DEFRA by the House of Commons Environmental Audit Committee, that DEFRA’s complaint procedure in this matter is wholly dysfunctional and therefore it would have been pointless for Marinet to establish any further complaints with DEFRA in this matter after May 2022 because the complaint procedure and its outcome is meaningless and unproductive.
Therefore Marinet submits to the OEP that Marinet is entirely correct in translating its concern about the breach of legal duties by DEFRA, and the EA and NE which DEFRA superintends, into a formal complaint to the OEP in July 2022 (CMS 358). Any other course holds no meaning if this breach in law is to be corrected and the OEP holds the legal powers, granted to it by Parliament, to investigate and report on this breach of law by DEFRA and the Environment Agency and Natural England.
Thus we maintain our complaint (CMS 358).
We are happy to respond to the OEP on any matter detailed above, and we advise that if we possess additional evidence which we believe is pertinent to this complaint we will endeavour to submit this before 1st December.
Yours sincerely
S. D. Eades
On behalf of Marinet.
cc. Mr. Charles Watson, River Action.
