Government retracts ‘unlawful’ pollution guidance for England’s farms

Guidance that would have allowed farmers to spread manures and slurry on land in a way that would overload it with nutrients and risk pollution of rivers, lakes and coastal waters has been changed by Defra, after a challenge over its lawfulness.

Rachel Salvidge 

Manures, which include sewage sludge, abattoir waste and slurries, are a leading source of water pollution. Their application is strictly controlled under what are known as the Farming Rules for Water. But Defra’s guidance had directed the Environment Agency not to enforce a breach of the rules if a farmer produced its own manures or used imported manures that could lead to nutrient overload.

Campaign group Salmon and Trout Conservation wrote to environment secretary George Eustice in April threatening judicial review unless the guidance was withdrawn, saying it was “unlawful, as it tells the Environment Agency that land managers can, in effect, breach the 2018 regulations … and that any such breach should not normally be subject to any enforcement”.

Defra rejected the claim in May, saying that “the proposed challenge is without merit”. But earlier this month the department changed the guidance to remove the loophole.

Guy Linley-Adams, solicitor to Salmon and Trout Conservation, said that if the guidance had remained unamended, the organisation would have “pressed forward with an application for judicial review, because in our view, and in the view of counsel instructed by Salmon and Trout Conservation, the guidance, as originally published, encouraged unlawful acts.

“Farmers and land managers would have read the guidance and believed it to be permission, in effect, to spread too much manure on their land risking serious agricultural pollution of watercourses,” he said.

Defra said the guidance had been amended by Eustice to “clarify guidance to the Environment Agency on assessment of soil and crop need when planning nutrient applications” and that it had done so “in response to questions raised by stakeholders”.

The Farming Rules for Water were introduced in 2018 at a time when the European Commission was threatening to take the UK to the European court over its failure to deal with diffuse agricultural pollution and protect rivers under the Water Framework Directive.

But to date, the Environment Agency has not prosecuted any farmers or landowners for breaking the rules.

Speaking last month in front of the House of Commons Environment, Food and Rural Affairs committee, Environment Agency chair Sir James Bevan said the rules were deliberately not enforced for the first couple of years “because the government asked us not to”. He said Defra “asked us to work with farmers through advice and guidance while farmers got used to it”. Bevan said the agency had been “more robust” over the last two years.

Salmon and Trout Conservation’s chief executive, Nick Measham, said the government is not doing enough to deal with agricultural pollution of rivers.

“The pollution on the Wye and many other rivers is often the direct result of farmers spreading chicken manure and cattle slurry carelessly or where it is not needed as a fertiliser. It is a huge problem. Agriculture is a bigger cause of our rivers failing to meet good ecological status than the water industry’s dumping of sewage.”

A series of regulations designed to protect the environment from water pollution are likely to be scrapped in their current form as part of Jacob Rees-Mogg’s plans to axe all remaining EU laws by June 2026, and Defra has said it is planning to reform farm rules towards a more advice-led approach.

“We fear the situation is about to get much worse,” said Measham. “The review of the Farming Rules for Water, the Nitrate Regulations and Silage, Slurry and Agricultural Fuel Oil Storage Regulations, that environment minister Rebecca Pow has confirmed is under way, may lead to wholesale watering down of agri-environment regulations, exposing English rivers to greater threat of pollution.”