‘Please enforce the law’: What you need to know about the river Wye legal challenge

Campaigners brought a landmark judicial review against the Environment Agency (EA) this week, arguing the environment regulator had failed to stop farmers releasing devastating amounts of fertiliser into the river Wye. Here’s what we know so far…

Limestone Cliffs and The River Wye at Symonds Yat. Source - GettyImages

The river Wye is 'dying'

The state of the Wye became a major news story in 2020 when algal blooms turned the river green and resulted in significant damage to its biodiversity.

Campaigners say this is a result of the high number of chicken farms that have been allowed to proliferate in the Wye’s catchment area.

Following this, last year, the Wye had its status downgraded to "unfavourable-declining”, the worst category for a protected waterway.

Charles Watson, founder of River Action, the charity behind the legal action said: “The agonising death of the river Wye has unfolded in recent years like a car crash in slow motion."

The exponential growth of intensive poultry production is a likely cause 

At any one time there are as many as 24 million birds reared in the Wye valley - approximately a quarter of the country’s total poultry production - according to River Action.

Watson said the watercourse has in recent years been "assaulted by a deluge of pollution from intensive agriculture, causing prolonged algal blooms… Endangered species like the Atlantic Salmon are on the cusp of localised extinction. We are asking for something very simple of the government: please enforce the law.”

Campaigners claim the EA has failed to enforce rules to protect the river

Last year, River Action won the right to the judicial review against the EA, claiming that pollution in the Wye "could have been seriously mitigated had the EA enforced existing environmental regulations".

The charity, which is being represented by law firm Leigh Day's environment team solicitor Ricardo Gamam, says that by failing to enforce the Farming Rules for Water (FRfW) regulation, “the EA has acted unlawfully; and in doing so has failed to protect the Special Area of Conservation of the river Wye from the huge levels of diffuse agricultural pollution that has caused so much of the recent ecological collapse of the river”. 

If laws had been properly enforced the pollution could have been avoided, say claimants 

Introduced in 2018, the FRfW state that farmers must make sure that fertiliser does not get into watercourses and that they should not put more on fields than is needed.

But River Action argues that DEFRA’s guidance provides enough leeway for excessive spreading to continue anyway. For example, the guidance says farmers can still spread manure in the autumn beyond the crop’s “immediate need”, as long as it does not exceed the total requirement for the whole crop cycle. 

The government says there are other sources of pollution

In a statement, DEFRA said the FRfW are only “one of many regulatory tools used by the EA to manage the nutrient load in the Wye Catchment”.

Furthermore, it argued that the impact of farming is not the only source of nutrient levels.

Phosphorus has accumulated over a number of years and is affected by climate change, flow levels in the Wye, increased housing development as well as industrial discharges from industry on the Wye, it said.

This is despite studies by Lancaster University showing that 70% of the phosphate in the river Wye catchment comes from agriculture.

DEFRA points to its other work aimed at protecting rivers

DEFRA, while it said it would not comment on an ongoing legal proceedings, added that it was “also supporting farmers to deliver environmental improvements in their local areas through our Environmental Land Management schemes, which includes work to improve water quality, reduce carbon emissions, and create and preserve wildlife habitats.”

The EA says it is carrying out thousands of farm inspections

The EA said that since 2021 it had performed more than 7,000 farm inspections and required farmers to carry out over 11,400 improvement actions, “including around the river Wye”. These range from improving slurry storage to better management of nutrients, it said.

A spokesperson added: “Anyone caught breaching environmental laws faces enforcement action, up to and including prosecution.”

Farmers are concerned about what the judicial review might mean for them

Commenting on the hearing, the NFU deputy president, Tom Bradshaw, said his organisation “recognised the need to protect the environment”. However, he said the NFU also believe it is important that legislation is “interpreted and applied correctly and proportionately”.

“The NFU has decided to intervene in the legal challenge being brought by River Action to ensure that our members’ interests are represented before the court on this critical issue,” he added.

River Action says effective lobbying by the NFU has led to DEFRA instructing the EA to ignore enforcing this critical protection

DEFRA aims for “proportionate enforcement”

According to local press reports, environmental lawyer Ned Westaway, speaking on behalf DEFRA told the court that the amount of nutrients needed to be spread on a field was a “question of judgment”.

He added that DEFRA felt there was a need for “proportionate enforcement” that strikes a balance between minimising costs for the farming sector and delivering environmental benefits. 

The judge presiding on the case, Mr Justice Dove, has three months before he must deliver a judgement.