Pollution, prosecution and the farming rules for water

In March 2017, officers from the Environment Agency were conducting a routine walkover of the Aylesford stream catchment area when they discovered high levels of sediment in a small tributary accompanied by a smell of manure. The cause was quickly traced to an overflowing slurry lagoon and a pipe that was part of the drainage system from a nearby farmyard.

The farmer was charged with two offences under the Environmental Permitting (England and Wales) Regulations 2016.  At court, the Environment Agency’s case was that the pollution had caused significant harm to the water quality and that there was a high level of culpability, and that, having regard to the sentencing guidelines for such offences, a sentence of imprisonment was merited.  In the event, the magistrates were persuaded to accept that the harm was in reality minor, and that modest fines could be imposed for both offences.    

Following the case, an Environment Agency spokesperson said:

‘Good farm management is vital to avoid incidents like this, that damage the local aquatic environment and harm wildlife.  We take these incidents very seriously and do everything within our powers to safeguard the environment and people that may be affected.  Mr X’s farm didn’t have the infrastructure to deal with the slurry it produces, which caused a serious pollution incident.  In these circumstances, we do not hesitate to prosecute.’

As it happens, not long after the offences for which my client was fined took place, the Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018, commonly referred to as the Farming Rules for Water (FRW) were introduced, which according to DEFRA would ‘help protect water quality by standardising good farm practices that many are already performing and offering a new approach to regulation.’ 

The FRW are extremely complicated. You can read them here.  In summary, they require land managers to ensure that:

  • organic manure or manufactured fertiliser is not applied on land which is waterlogged, flooded, snow-coverered or frozen;
  • each application is planned so it does not exceed the needs of the soil or crop or give rise to a significant risk of pollution;
  • a list of factors are taken into account, including soil sampling on cultivated land;
  • manufactured fertiliser is not applied within 2 metres of inland or coastal waters, springs or boreholes;
  • organic manure is not applied within 10 metres of inland or coastal waters (with some exceptions) and within 50 metres of a spring, well or borehole;
  • organic manure is not stored within 10 metres of inland or coastal waters and within 50 metres of a spring, well or borehole;
  • soil is not compacted by livestock within 5 metres of inland or coastal waters and livestock feeders are not positioned within 10 metres of inland or coastal waters or 50 metres of a spring, well or borehole.

Failure to comply with the rules is itself an offence, punishable by an unlimited fine, i.e. no actual water pollution need occur.  As an alternative to prosecution, the EA can impose civil sanctions, including stop notices, compliance notices, restoration notices, fixed and variable monetary penalties, or accept an enforcement undertaking.

It’s fair to say that the rules have not been without controversy.  In particular, it is the requirement to plan each application so that it does not exceed the needs of the soil or crop or give rise to a significant risk of pollution, commonly known as ‘rule 1’, that has caused most concern among farmers. 

After a number of their members reported having been challenged over the spreading of fertilisers and manure ahead of winter sowing, the NFU accused the EA of taking a rather stringent and short-sighted interpretation, and on the 25 August, the EA updated its Regulatory Position Statement (RPS 252) allowing farmers who follow the conditions in the RPS to have a plan to apply organic manure where this may exceed the needs of the soil or crop provided there will be no risk of pollution. You can read RPS 252 here.

The updated statement includes the following hierarchy of actions:

  1. If you can follow farming rules for water, rule 1, then you do not need to use this RPS – carry on with your planned activities.
  2. If you can follow the conditions in this RPS – tell the Environment Agency you are using this RPS as described in the ‘contact’ section, and carry on with your activities.
  3. If you cannot comply with the conditions in this RPS, email [email protected] or call 03708 506 506 (general enquiries). The Environment Agency will assess the risk of your activities. For this autumn, they will allow activities that will not cause significant risks (significant risk may result from repeated applications to the same field or spreading close to protected sites, such as Natura 2000 sites). You must not start your activities until the Environment Agency confirms you can do so.

By allowing activities that will not cause ‘significant risks’, the third stage of the hierarchy appears to offer more flexibility than before for farmers who cannot comply with rule 1 or RPS 252, however, the NFU recommends that its members still take independent advice before proceeding down this route.

For further advice and assistance, on water pollution or any other alleged environmental offences, please contact Tim Ryan.

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