Environment Agency told to protect wetlands in landmark court case

The high court has ordered the Environment Agency to reduce water abstraction and protect England’s rare wetland habitats, in a landmark case that confirms that European nature conservation laws remain enforceable despite Britain having left the EU.

Patrick Barkham www.theguardian.com 

The victory for Tim and Geli Harris means the Environment Agency will be forced to tackle the damage caused by the removal of water from the internationally important wetlands of the Norfolk Broads, home to rare species including the Norfolk hawker dragonfly and the swallowtail butterfly.

The abstraction of water from England’s largest protected wetland – situated in one of the driest regions of the country – is done mostly so that farmers can irrigate crops.

The couple, who are farmers themselves, have spent £1m on legal challenges over more than a decade, winning a key battle six years ago when a public inquiry found that abstraction licences were damaging critically endangered plants such as the fen orchid at Catfield Fen, a site of special scientific interest (SSSI) that they in part own.

But they took the Environment Agency to court again because it was failing to stop abstraction reducing the flow of groundwater at other internationally important wetland sites across the Broads.

Tim Harris said: “My wife and I are pleased that the high court has ruled that there must now be urgent work done by the Environment Agency to prevent damage from water abstraction to the whole Broads special area of conservation and its unique ecosystems.”

Farmers argue that reducing abstraction would harm their ability to grow food such as potatoes, a high-value crop farmed on dry land close to the Broads and irrigated using water from it.

But Harris said reducing abstraction would simply lower some yields – and land values – but encourage farmers to grow less water-hungry crops. He said: “It’s not about food security, it’s about crop choice. They should be growing wheat, and they can still grow potatoes, it’s just that irrigation adds about 15% to yields and land values.

“Should we destroy the whole of the Broads for the sake of that extra value in agricultural land when the largest by far revenues come from tourism?”

In deciding the case, the court applied a little-known legal provision in Brexit legislation that says that even though the UK has left the EU, rules in European directives – in this case, the habitats directive – remain enforceable against UK public authorities if those rules have been recognised by a court as being enforceable prior to Brexit.

The court also ruled that a lack of funding for the Environment Agency was not a valid reason for it failing to meet its legal duties.

Penny Simpson, a partner in environmental law at Freeths, who brought the case for the Harrises, said: “This is a very important court judgment for both East Anglia and the UK. For East Anglia there must now be significant and urgent work by the Environment Agency to prevent damage from water abstraction to the large Broads conservation area.

“For England and Wales, we now know that public authorities must take appropriate steps to prevent harm to sites protected under the habitats directive where those public authorities are charged with the legal powers to do so.”

The Environment Agency said it had already informed 20 abstraction licence holders in the Ant Valley that their licences must be reduced, constrained or revoked. A spokesperson said: “We are working to restore, protect and enhance the environment but like every public organisation we have limited resources, so focus our efforts on the greatest threats to the environment.

“Originally the scope of this investigation was to evaluate the impacts of abstraction in the Ant Valley to protect the Ants broad and marshes SSSI. As a result of the judgment in this case we will now look at how we can expand our work to cover further protected sites whilst recognising the resource constraints.

“We remain committed to working with landowners, abstractors and Defra bodies to ensure that we continue to address unsustainable abstraction.”

A spokesperson for the National Farmers’ Union said that the agricultural sector in the region was working with Water Resources East on a long-term strategic plan for water resources, and that farmers were already also taking steps to maximise water efficiency. “It’s important that any solutions to the water resource challenges we face find the right balance between food production and environmental protection.”

Harris said: “You may ask why private individuals not public bodies or conservation charities have brought this judicial review, which represents a landmark ruling on the continuing role of European conservation laws in post-Brexit Britain.

“The public bodies such as the Broads Authority say they are working in a joint effort with all the stakeholders. What all sailors know is that convoys move at the speed of the slowest ship, and not much at all if the slowest ship doesn’t pull up its anchor. Unfortunately, nature can’t wait for the boat to come in.”

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