The nationwide impacts of the Fish Legal case on the Costa Beck
Will the new government act for rivers or protect the historic no action approach?
Today, Fish Legal launched a petition to force the new Government to act now to meet legally binding targets for river health. The petition is to urge the Government to restore every single waterbody to good health by 2027. That’s the deadline. It can’t be put off or pushed back. There’s no time to waste. This Government needs to reverse the previous failures… because every river counts.
Speaking at the UK River Summit, Penny Gane, Head of Practice at Fish Legal, explained their ongoing battle through the courts to get the Government to do just that.
What can you do to help? Learn more by reading below and SIGN the petition today:
Transcript from the Effecting Policy Panel
Penny Gane at The UK River Summit: “I would like to talk about a battle through the courts that we're currently involved in against the government and the Environment Agency to do precisely that, to force action for every single river up and down the country. So I think I said earlier I'm a fan of the stick and I'm also a fan of regulation because I feel that it drives change. I think it sets out very clearly the expectations for everyone who has potentially got an impact on rivers and I'd like to talk to you about the Water Framework Directive. These are the key, the Water Framework Directive and the implementing regulations. They are the key regulations when it comes to protecting river health. You would have heard of the stats for England, certainly only 16%, so that's 14% of rivers are currently in good overall health. The sunny uplands are supposed to be 100% but it doesn't look as if we're going to go and get there and that was supposed to be achieved by 2015 in any event but there were.
The possibility of various extensions for various reasons but there is a hard deadline of 2027. So that is separate to any targets which you might now have in the Environment Act. These regulations and this whole process towards good ecological health has been going on for the past 20 years, so it will be 24 years by the time we get to 2077. So I'm quite amused to hear earlier on that we need a plan. We have had a plan. I'll try and break it down how it works in practice because we've come to understand this process, which has been very difficult for us. And if it's difficult for us, it's going to be absolutely impenetrable for the public. But it is the structure around how change and improvement in the health of our rivers and waters is supposed to happen.
So in England, under the regulations, there are 10 river basin management plans, so it's kind of an administrative division of England into separate river basin management plans. Within those river basin management plans there are 4,929 waters. Now, you might have thought from listening earlier that no-one really has a clear idea why those waters are not in a good condition, but that's not the case. The Environment Agency has done a lot of work to identify exactly the reasons for failure and the reasons for not achieving good. Essentially there are documented and publicly available information, albeit that it's quite difficult to drill down into on the gov.uk website, but you can essentially go along to any river that you know about. You can see a river may be subdivided into little sections, but you can go and then see that it might be failing for fish because of flow, or it may be failing for invertebrates because of phosphate, and that phosphate may be linked to discharge from a water treatment works. That work has been done.
Once that work's been done, the environment agency should come up with measures that will mean, let's say measures is an action that will be taken to address the reason for failure in order to achieve good. Okay, sounds pretty simple and quite a good plan. I'll give you an example of a measure, a permit is a measure. So let's say a permit is a control of a pollution from a point source. So a water company will have a measure. So every six years, a part of this cycle in the Water Framework Directive, the Environment Agency should go back to have a look at the measures that it had in place for each individual water body and if the water body is still failing then our argument was, you need to go back and look at the measures you've got in place, they're not good enough, you've got to review them and if they need improving, then do that in the next cycle, that makes sense. So if you're talking about a permit, one of the actions that you could have taken in the last six year cycle is to go back to that permit and check whether it's been complied with and you still got an impact on the health of the river, maybe you need to tighten the conditions.
So the Costa Beck is near Pickering, it's spring fed, it's a very small beck, it used to be a prolific fishery. Decades of decline, it used to be teeming with grayling and trout and it's now in a woeful state. It does have a sewage treatment works on its bank, it has final effluent going into the river, it also suffers from quite a few spills, but it also has two fish farms.
There are all sorts of other issues which are set out in the water body of the reasons why it is failing. So the last planning cycle, when the Environment Agency put together their river basement management plan for the Humber region, our members, our anglers, we went to the Humber River Basin Management Plan and we wanted to find the measures for the Costa Beck. It's still failing, you've had 20 years, the measures are not working, are you going to review them? If you need new measures, where are they and when are you going to bring them in?
Where are the deadlines in the actions to improve the Costa Beck. But we couldn't find anything in the Humber River Basin Management Plan. It might come as no surprise, and we did look. Nothing to save the fish, nothing, no specific actions that were appropriate and could have improved and enabled that particular water body to reach its target of good health by 2027. So when the Secretary of State signed off the Environment Agency's plan that covered the Costa Beck, which was the Humber River Basin Management Plan, we took them to court. And the court agreed with us.
So the court found in a judgement that was delivered last November, the Environment Agency's Humber River Basin Management Plan, published in 2022, was unlawful. The Secretary of State's decision to sign it off was also unlawful. The Environment Agency's consultation on the draft plan was also unlawful and the Government made a fundamental error of law in its decision making in the implementation of the Water Framework Directive.
It's a pretty damning judgment. The judge went out of her way to describe the Secretary of State's approach to river basin management plans as one of smoke and mirrors, which is just to me, misleading. The DEFRA and the Environment Agency should have come up with water body specific measures that would enable each water body to meet its environmental objectives, not just generic plans, by 2027 and they hadn't done so.
It's slightly better news for the Costa Beck because the Environment Agency was ordered to go back and redo the plan for the Costa Beck. Now, as you can imagine, and I know that we've heard earlier from politicians and also from the Environment Agency, that they are committed to action. I would say that they're appealing, they're taking this to the Court of Appeal. Because of the widespread implications of this ruling, because it means that they actually have to go back and look at every single water body and review the measures and come up with proper actions that will actually improve the health of each river throughout England, they're appealing. Because they're saying essentially we can't accept this. We have a court date, it's going to be January 2025.
I'll also add that the OEP who were here earlier, I was pleased to read in their report that they agree with us. They talk about the Pickering judgment which is from the Pickering Fisheries Association in their reports when they say exactly that, that the government and the Environment Agency should be coming up with specific time-bound measures that deal with all the problems that they've identified on every single water course. The government's plan for water is based on river basin management plans. They sit underneath them. If the river basin management plans don't have any specific actions in them, they are meaningless. It's built on sand.
I think after the next election, if our court case comes after the next election, it will be interesting to see whether government of the day keeps fighting to protect its no action position or whether it's prepared to accept that in order to move from that figure of 14% of our rivers in England being in good ecological health, that they actually need to go back to the drawing board and really come up with some specific actions to drive change.”