13/11/2014 - Environment Agency forced to regulate reservoir pollution after being confronted with its own data

Angling interests have won a judicial review against the Environment Agency for its 20-year failure to regulate transfers of polluted water from other waterbodies into a Midlands reservoir by Severn Trent Water. Fish Legal fought the legal action on behalf of its member club, Cropston Angling, following decades of phosphorus pollution which had caused algal blooms in the lake and the steady decline of what was once one of the best trout fisheries in the Midlands.

The reservoir’s anglers, led by Ian Kilgour of Cropston Angling, complained to the Environment Agency (EA) as long ago as 2002. The EA’s response until now had been that Cropston Reservoir’s increasing phosphorus load is primarily the result of natural causes, in comparison to which the quantity of the artificial transfers is relatively minor. According to their evidence, they said, there was no correlation between elevated phosphorus concentrations in the lake and the timing of the transfers. Furthermore, the lake sediment now contains large quantities of phosphorus which would be likely to persist whether or not the transfers are controlled.

Following years of these prevarications, Fish Legal issued a judicial review claim on behalf of Cropston Angling against the EA’s failure to regulate the transfers in late 2013. The EA continued to deny that the transfers were responsible and even argued that the court had no jurisdiction to rule against it in a ‘fact-based’ challenge of this kind.

In the lead-up to the trial, however, the EA experienced an abrupt change of mind, agreeing to settle the claim on the basis that Fish Legal had now written “raising a number of points” about the Agency’s witness evidence and referring it to data already in its possession. It had now therefore “reconsidered the position in the light of available evidence”.

As a result of this reconsideration the Agency now accepts that “at times the transfers may have been in concentrations and/or quantities which could have materially contributed to eutrophication [nutrient pollution] at Cropston”. It has therefore reversed its longstanding position that regulation is not needed and confirmed that “if [Severn Trent Water] wished to continue to carry out such activities in the future, it would need to apply for an environmental permit and, if that permit is granted, operate in accordance with that environmental permit”.

Andrew Kelton, solicitor at Fish Legal, said:

“We are glad that the Agency has at last accepted, in effect, that it was wrong all along on this issue and has now committed to the control of future transfers. Our member club is of course less happy that it has taken this long, plus a judicial review, for them to do so. We will now be demanding rigorous risk assessments for the transfers if any environmental permits are to be granted."

“It is alarming that proper scientific assessments of this kind, based on the full history of the transfers, have not taken place in the past. To put it bluntly, the science seems to have been ‘moulded’ according to the Agency’s preconceived position on this issue, rather than the other way around as it should be. To say that they have now changed their mind because we have presented them with their own data is ironic to say the least. "

He added:

“Experience elsewhere, such as at the famous Loch Leven trout fishery in Scotland, has shown that what is needed to address serious eutrophication issues is, firstly, a full and honest scientific assessment of all the sources of phosphorus with resulting proposals for remediation; and, second, co-operation between the different parties to achieve those solutions. The Agency can and should now attempt to achieve these things at Cropston, even if that risks some inconvenience and potentially, cost, to the water company. If this is done, we think Cropston has a good chance of recovering.”

Ian Kilgour of Cropston Angling said:

“We have been pointing out the all-too-obvious impact of these water transfers for 12 years, and have been consistently told by the authorities that we are wrong. It is good to be finally vindicated, but that does not compensate for the substantial financial losses we have suffered, nor guarantee that the problem will be rectified, unless firm action is now taken by the Agency.”

Mark Lloyd, CEO of the Angling Trust & Fish Legal, said:

“Eutrophication of lakes (and indeed rivers) is a serious and pervasive issue throughout the country, threatening fisheries, valuable aquatic ecosystems and even public drinking water supplies. It is, however, a problem that experience has shown can be addressed via proper scientific assessment and determined regulation. We are glad that the Agency has now accepted the legal position that the science must come first and that the appropriate regulation must follow from that. This must also be applied to other situations where preventable eutrophication is taking place but is not being addressed."

“We are only able to fight ground-breaking, risky and expensive legal cases such as this because of the backing of tens of thousands of members of the Angling Trust and Fish Legal who support us with subscriptions and donations

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