21 December 2023

Press Release

For immediate release

Government’s own environment watchdog failing to investigate crimes against our rivers

UK nature is paying the price of the failure of the UK Government and Environment Agency to enforce rules around nitrogen waste   
Environment Agency has committed “unlawful abdication of its statutory responsibilities”    
Continued delays on investigation by Office for Environmental Protection risk further damage to the environment.

In November 2022 WWF UK and ClientEarth launched a legal complaint to the Office for Environmental Protection against the Environment Agency for its failure to monitor and enforce environmental protections on nitrogen pollution.

Over a year on, no decision has yet been made by the OEP even on whether an investigation will be carried out, raising questions about whether the body is struggling to fulfil its mission to protect and improve the environment by holding government and other public authorities to account in an effective and timely manner.  

The UK has just seven years to halve nutrient waste by 2030 in line with the global agreement for nature set out at COP15, and yet little attention has been paid by government to the highly damaging impact of nitrogen pollution. 

The complaint is based on Freedom of Information (FOI) requests submitted by WWF and ClientEarth which revealed that between January 2020 to December 2021 the Environment Agency conducted 2,213 inspections of three key agricultural regulations, identifying breaches in almost half of farms but in only one case issuing a civil sanction.  

These inspections represent just 2% of farms each year, suggesting that the Environment Agency has little idea of the scale of law breaking taking place and of the damage being currently done to the environment. 

Given the high levels of nitrogen pollution in England, WWF and ClientEarth have accused the Environment Agency of “an unlawful abdication of its statutory responsibilities”.  

Each day that that passes without effective action by either the UK Government or the OEP to hold them to account represents new damage to the UK’s environment, and this damage is real. 

Nitrous oxide emissions have almost 300 times the warming potential of carbon dioxide, and nitrates are responsible for degradation of almost 70% of sensitive habitats across the UK.

It is also a leading cause of water quality degradation with only 14% of our rivers in good health, nearly 30% of the groundwater used for drinking in England requiring blending, treatment or replacement due to high nitrate levels, and more than 55% of English lakes failing to meet good status with respect to nitrogen levels. 

To properly protect the environment WWF and ClientEarth are urging the OEP to act in accordance with their mandate and begin immediate investigation.   

Kate Norgrove, Executive Director of Advocacy and Campaigns at WWF, said:   

“UK nature is paying the price of the failure of the UK Government and Environment Agency to enforce the rules, and address the critical harm that nitrate pollution has done to our rivers, streams, soil and air.

“At a time when the UK should be accelerating action on climate change we are shocked that there has been no answer on if an investigation will take place, and fear that expectations have been raised by the government’s watchdog that are not being met. 

"To turn things around for England’s rivers we need those responsible for pollution to be held to account, and we need urgent action to support our farmers to protect river health.   

“With the Environment Agency still missing in action, we urge the OEP to at last fulfil its mandate and act now to investigate this abject failure to protect our environment.”  

ENDS

In June 2022 ClientEarth, WWF, Soil Association, Plantlife International, the Woodland Trust and RSPB contacted the OEP, notifying them of concerns regarding the impacts of nitrogen pollution on water, soil, air quality, climate change and nature, and requesting that the OEP reviews and reports on the systemic failings of the current regulatory framework to address rampant nitrogen pollution in England.
WWF estimates that the planetary boundary for nitrogen - the earth system’s limits within which humanity can safely operate - has been exceeded by a factor of at least two.
To meet planetary boundaries, WWF has said that the UK’s per capita nitrogen footprint must be slashed by more than 80% by 2030.
Excess nitrogen is driven by a large number of factors including, but not limited to:
- the use of large quantities of synthetic, nitrogen-based fertilisers
- the import of nitrogen in the form of soy based animal feed
- fossil fuel combustion
- Transport
- wastewater treatment
In the 25 Year Environment Plan, the government committed to achieving clean and plentiful water, and restoring 75% of terrestrial and freshwater protected sites to favourable condition as soon as possible. The EU Water Framework Directive sets objectives to achieve ‘good ecological status’ and ‘good chemical status’ for all waterbodies by 2027. As of 2019, only 16% of water bodies in England meet good ecological status (and 0% meet good chemical status).
Nitrates are the top cause of groundwaters failing to achieve good status, and more than half (55%) of English lakes failed to meet good status with respect to nitrogen levels.
In England, agriculture and rural land management is the most common reason for individual watercourses not achieving good ecological status.
Some 45% of synthetic fertilisers are lost each year, mainly as runoff into rivers and streams, costing farmers around £397 million per annum.
As a greenhouse gas, nitrous oxide is around 300 times more powerful than carbon dioxide over a 100 year timeframe.
The three regulations that are intended to prevent nitrogen pollution (which are the focus of the complaint) are the Water Resources (Control of Pollution) (Silage, Slurry and Agricultural Fuel Oil) (England) Regulations 2010 (SSAFO); the Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018 (known as the Farming Rules for Water); and the Nitrate Pollution Prevention Regulations 2015 (Nitrate Regulations) (together, the “Agricultural SI’s).
WWF-UK and ClientEarth have identified through an FOI request that in the 2020-2021 period, the Agency
- conducted 2,213 inspection visits in total (1475 in relation to the SSAFO; 550 in relation to the Farming Rules for Water; 188 visits in relation to the Nitrate Regulations.
- identified 96 breaches of the Nitrate Regulations, 291 breaches of the FRfW, and 634 breaches of SSAFO (1,021 breaches in total). The Agency later clarified that 531 farms were non-compliant and 57 farms received warning letters (in relation to multiple breaches).
Of the 1,021 breaches of the law identified, only a single (1) civil sanction or penalty was applied by the Agency in 2020-2021. That means that in relation to each criminal offence identified by the Agency under the three regulations, it will impose a sanction 0.1% of the time.
The Agency clarified by email that there are generally multiple inspections on a single farm, noting that in 2021 – 2022, they conducted 1805 inspections on 1695 farms. There are approximately 105,000 farms in England. This means that the Environment Agency inspected approximately 1.6% of farms in 2021 - 2022, and even fewer the previous year.
In their response to the summary complaint, the Environment Agency noted that it concluded 18 prosecutions in 2021-2022 for offences on agricultural premises, but of these offences only two were for offences under the Nitrate Regulations and only one for a SSAFO breach.
229 grassland derogations were applied for in 2020 and 233 in 2021. However, in response to a freedom of information request, Natural England confirmed that it has never provided site-specific advice on grassland derogations to the Agency between the entire period 2016-2021, despite the Agency falling under a specific duty to compile information “enabling it to form an opinion of the general state of pollution of the environment” under section 5(2) of the Environment Act 1995.
FOI requests revealed Natural England advised the Agency that site-specific assessments should be conducted for all derogations within areas that are already in unfavourable condition or could become so as a result of the derogation.
The Agency is not carrying out enough farm inspections to equip itself with the information needed to carry out its statutory responsibilities under the regulations concerning nitrate pollution. It appears that the majority of Agency inspections result in a finding of unlawful failure to comply with the law, suggesting systemic non-compliance (non-compliance being a criminal offence under the Agricultural SIs). However, despite this, the Agency is only inspecting a fraction of farms in England every year.
It is contrary to the protective purpose of the Agricultural SIs not to adequately police the offences created by them. This approach entirely undermines the Agricultural SIs, leading to rampant non-compliance and nitrogen pollution.

About ClientEarth:

ClientEarth is a non-profit organisation that uses the law to create systemic change that protects the Earth for – and with – its inhabitants. We are tackling climate change, protecting nature and stopping pollution, with partners and citizens around the globe. We hold industry and governments to account, and defend everyone’s right to a healthy world. From our offices in Europe, Asia and the USA we shape, implement and enforce the law, to build a future for our planet in which people and nature can thrive together.