The specialist not-for profit Fish Legal and the Pickering Fishery Association won a notable victory in the High Court on 20 November 2023, that could be significant for the health of many other UK rivers. They successfully challenged the adoption by the Secretary of State for the Environment, Food & Rural Affairs of a River Basin Management Plan for the Humber catchment on the grounds that it omitted any specific measures to improve the ecological potential of the Upper Costa Beck, a small river where the Pickering Fishery Association owns or leases the fishing in Ryedale, North Yorkshire.
Under the EU Water Framework Directive, negotiated and agreed under the UK’s Presidency of the EU Council of Ministers in 2000, the overall objective was to achieve “good status” of controlled waters, including rivers and lakes, across the EU by 2015. “Good status” consists of “good chemical status” and “good ecological status”, or, where water bodies have been heavily modified, “good ecological potential”.
The commitment to achieve these outcomes by 2015 has been subject to repeated delays. Most water bodies in England have extended deadlines for achieving good ecological status or good ecological potential because it has been argued by the government that earlier improvements would be “disproportionately expensive” or would constitute “disproportionate burdens”.
The overall results of this approach to delaying real action are that 0% of rivers in England achieved “good chemical status” and only 16% of waterbodies -14% of rivers- achieved good ecological status.
The EU Water Framework Directive, and the regulations which implement it, require that catchments across the EU be designated as River Basin Districts, and for each of these there should be a River Basin District Plan, containing a Programme of Measures – in effect the steps that will be taken to meet and work towards achieving the environmental outcomes.
In this case, the Secretary of State has the duty of making the River Basin Management Plan for the Humber catchment, based on data and work set out by the Environment Agency as the relevant regulator. Pickering Fishery Association, with its ownership and leasing of fishing in the Upper Costa Beck within the Humber River Basin District had hopes that the Plan would deliver improvements to its water quality, which was affected by discharges from two fish farms, a sewage treatment plant operated by Yorkshire Water and an amusement park. But as it turned out there were no measures in the Humber River Basin Management Plan that were specific to the Upper Costa Beck, and that was the basis of the challenge.
The Secretary of State and the Environment Agency argued that it was quite unreasonable, disproportionate even, to expect them to specify in the Plan actual measures that they should take to achieve better outcomes for an actual river like the Upper Costa Beck. The judge, Mrs Justice Lieven did not agree -
“Given that the environmental objectives are water body specific, and the Programme of Measures is created to achieve these objectives, it is counterintuitive to suggest that the measures in the Programme of Measures could be wholly generic and not focussed on whether, when and how the environmental objectives designated for the individual body would be met.”
In other words, the Plans prepared by both the Secretary of State and the regulator had to set out actual measures that would be taken to achieve environmental objectives in actual rivers.
Andrew Kelton, Fish Legal Solicitor said -
“This case goes to the heart of why Government has failed to make progress towards improving the health of rivers and lakes in England. Only 16% of waterbodies – 14% of rivers – are currently achieving ‘good ecological status’, with no improvement for at least a decade, which comes as no surprise to us having seen how the Environment Agency first proposed, but then for some reason failed to follow through with the tough action needed against polluters in this case. The Upper Costa Beck is just one of 4,929 waterbodies, but it is a case study in regulatory inaction in the face of evidence of declining river health…We hope this ruling will lead to actual environmental improvements, not only on the Costa Beck but on every other ‘failing’ river and lake across the country.”
Many years ago my father was fishing near the bridge in Pickering, and a passing local subjected his efforts to the great Yorkshire “put down”, commenting –
“Bit previous, ain’t tha?” adding “Aye well, leave a few fer us”.
The fishermen of Pickering have delivered another put down to government and regulators, but in substance it should not come as a surprise. As we have now had twenty four years to think about the environmental objectives contained in the Water Framework Directive, it does not seem unreasonable to expect that Government and regulators should now take specific actions to meet them.