Catfield Fen revisited

This blog has touched on the subject of the drying out of Catfield Fen on four previous occasions; 30 May 2012, 22 August 2012, 10 September 2012, 30 September 2012.

Whilst this blog, Standing up for Nature, has not paid much attention to Catfield Fen for nearly a year the owner of the site, Tim Harris, who, it seems to me, has been doing a wonderful job in trying to resolve the threats to the site from over-abstraction of groundwater, has been very active.  I’ve recently had an update from him.

Here are four documents which spell out what is happening (or isn’t happening more like).

Document 1 is a legal note from Mr Harris’s legal advisors on the matter – it is admirably precise and clear.

Document 2 is a technical note prepared for Mr Harris by expert hydrologists as a response to the EA’s position – in order to help the EA realise that water abstraction (which they license) might well be leading to drying out of a site of European nature conservation importance.

Document 3 is a very recent letter, but the second of its type, sent by Mr Harris’s MP, Norman Lamb, to the Defra Minister, Richard Benyon, asking him to call this matter in and review it.

Document 4 is the briefing that NE and EA jointly gave Mr Benyon to explain to him what was going on.

You can read them all here, and you can also read what the EA say about this case on their website (although you really will not learn anything from that – click here).

This is where I am with all of this.  Catfield Fen is drying out (everyone seems to agree that) and is a site of huge importance for wildlife (everyone seems to agree that).  The benefit of the doubt as to whether water abstraction for agriculture is causing the drying out should be given to the wildlife of Catfield Fen (Document 1) and there is a lot of doubt about the quality of the evidence (Document 2).  Nobody says that they are sure that water abstraction has nothing to do with the drying out of Catfield Fen.  Mr Harris and his MP think that the Minister should get involved in this in order to speed things up and sort things out properly (Document 3).  NE and EA are dragging their feet – maybe because they seemed tied together at the hip, knee and ankle and so can’t move without the other (Document 4).

If you feel that Catfield Fen is an important case which needs quick resolution then you could write to Richard Benyon at Defra,  Nobel House, 17 Smith Square, London SW1P 3JR  or [email protected].  This issue has now been running for 5 years and it may appear to some as if EA is falling over itself to maintain the abstraction licence rather than taking a precautionary approach for a wildlife site of European importance.

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 Document 1

IN THE MATTER OF MR AND MRS HARRIS AND & WATER ABSTRACTION AFFECTING CATFIELD FEN, NORFOLK

NOTE ON LEGAL ISSUES

I.    Introduction
1.    I have been asked by Mr. and Mrs. Harris to summarise the legal issues arising from the Environment Agency’s (“EA’s”) pending decisions concerning the renewal of licences  to authorise the abstraction of water from the locality of Catfield Fen in Norfolk . I understand that this note may be disclosed in order to inform a possible call-in decision by the Secretary of State.

2.    The key issues of scientific controversy in this case are the extent to which the abstraction under these licences might cause or contribute to the drying out of the Fen (the drying out itself being an established and agreed fact), and the impact on nature conservation interests which different degrees of impact on water levels within the Fen might have. Underlying those issues is a wealth of technical analysis and expert opinion which is agreed in some respects and deeply divided in others.

3.    I am familiar with the technical issue and disputes that have arisen in this case, and with the procedures that have been adopted by the EA when considering these matters. I am also familiar with the position taken by the various parties concerned .

II.    legal issues
4.    The Fen is part of a designated site under the European Habitats and Wild Birds Directives.
It is also designated under the RAMSAR Convention and as an SSSI in domestic law. These designations set the legal context for the decisions that the EA needs to take.

5.    I summarise the key legal issues below .

(i)    The precautionary principle

6.    This case concerns European protected sites and differences of scientific  opinion, some arising from acknowledged leaders in their field, as to the likely or possible impacts of the authorisations being sought . The decision-maker must therefore apply the precautionary principle. The classic case on the precautionary principle is case C-127/02 Wadenzee where the  Court  held  in  relation  to  a  case  concerning  authorizations  for  cockle  fishing  in  a European protected site that :

“61. . . under Article 6(3) of the Habitats Directive, an appropriate assessment of the implications for the site concerned of the plan or project implies that, prior to its approval, all the aspects of the plan or project which can, by themselves or in combination with ‘other plans or projects, affect the site’s conservation objectives must be identified in the light of the best scientific knowledge in the field. The competent national authorities, taking account of the appropriate assessment of the implications of mechanical cockle fishing for the site concerned in the light of the site’s conservation objectives, are to authorise such an activity only if they have made certain that it will not adversely affect the integrity of that site. That is the case where no reasonable scientific doubt remains as to the absence of such effects.”

7.    The effect of this approach is that if there  is  uncertainty  about  whether  a  project  will adversely affect a site’s integrity, authorization must not be given for that project unless the decision maker can make certain that there will be no such adverse effect applying the ‘no reasonable  scientific doubt’  test.    It would  be contrary  to the  precautionary  principle  to place the burden the other way around, and to grant authorization  unless there is positive proof of an adverse effect .

8. In the present case the Harris’ have instructed a number of acknowledged experts  on hydrology and nature conservation whose views provide ample evidence to preclude approval of the abstraction licences if the precautionary principle is properly  applied. Indeed, the work commissioned by the EA itself has in several respects conceded that there is uncertainty as to the possible impacts of abstraction on the Fen. How these matters are resolved will be for the decision-maker subject to review by the courts. It is clear that the international importance of the Fen for nature conservation and the uncertainty highlighted by experts of national renown make this a matter of more than local importance.

(ii)    Procedural fairness
9.    There are serious concerns over the procedural fairness of the process adopted by the EA. Chief amongst them is the concern that has arisen because of the use by the EA of a nationwide hydrology model to assess the impacts of water abstraction at the local level at Catfield Fen. The Harris’s advisors have challenged the appropriateness of the model for fine-grain assessments of the kind required here. While the EA had initially said that access would be given to the model without any apparent restrictions, it now appears that the EA is unwilling to allow unrestricted access . Since the model is a key component of the decision­ making process adopted by the EA, and understanding how it works and being able to run it with different assumptions is a necessary part of understanding and making representations upon the EA’s and its advisors’ views, unrestricted access would seem to be essential to make the process fair. As yet this has not been achieved.

10.    Coupled with this is the fact that when the suitability of the model was challenged, the EA asked its advisors, AMEC, to carry out an “independent” assessment of the suitability of the model. But the reliability of this assessment and its fairness is open to doubt. The model was created by ENTEC who were then acquired by AMEC, meaning that AMEC are in effect the proprietors of the model whose validity they have been asked to “independently ” assess.

11.    The above raises a general point as to the manner in which these decisions are•taken and the fairness of the procedures involved, not least because the model is a national model used throughout the country .

{iii) Robustness and adequacy of evidence
12.    The above point in relation to the model, and the scientific debate that has arisen as to the
impacts of abstraction, mean that this is a case where careful, impartial and informed evaluation of the evidence is required if there is to be confidence in the decisions made and they are to be robust enough to withstand legal challenge. If the abstraction licences are approved, legal arguments can and no doubt will be made as to the robustness of the evidence and reasoning upon which any decision is based . Given the importance and controversy of the decisions that the EA is being asked to make, and the sensitivity of, and high level of protection to be afforded to, the conservation interests in issue, this is a case where the lack of any opportunity to fully test the evidence is of concern.

13.    At the present time, I would simply observe that a call-in would allow a thorough testing of the evidence from all parties through focused oral questioning and the assessment of an impartial, expert decision -maker . This is a valuable procedure where decisions of national and international importance turn on opinion evidence underlying which are scientific data and assumptions which influence the judgments reached.

James Pereira
Francis Taylor Building Inner Temple
London EC4Y 7BY
25 March 2013

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 Document 2

Hydrodynamics of East Anglian fen systems and Catfield Fen, Norfolk.

This document comments on the approach adopted by the Environment Agency and Natural  England to assess the effects of groundwater abstraction on fens in East Anglia . These wetlands are dependent upon continued groundwater  inflow to support a diverse fauna and flora and their t1ydrology is characterised by marked spatial and temporal variability, reflecting seasonal patterns of the principal inflows (precipitation, groundwater discharge) and outflow (evapotranspiration) .

Both the quantity and the quality of water inflows to the wetland are important in determining the vegetation communities at a particular site. There are considerable problems, however, in characterising the ‘groundwater catchment’ given uncertainties in our understanding of the links between individual wetlands and the underlying aquifer(s). Moreover, it is very difficult to attribute , or predict, t he impact of any hydrological change (i.e. the pattern of water inflow and outflow) on wetland ecology.

In this note we focus on Catfield Fen and neighbouring wetlands 1n the Ant valley, but these exemplify many of the problems of East Anglian fen systems (Gilvear et al., 1989; Wheeler et al., 2000). Specifically at Catfield Fen, Natural England (2011) note ‘the evidence presented demonstrates a long-term trend of drying on this site which appears to be accelerating. There is evidence of vegetation change consistent with drying of the wetland habitat’.

Fen Hydrology

Fens in Norfolk represent small wet “patches” in the landscape which are sustained by water inflows that include precipitation, hillslope runoff and both local and regional groundwater water discharge. Empirical studies have demonstrated that this mix of waters can vary m volume (and relative importance) across individual sites and will be influenced by a range of local factors, including differences m the permeability of individual stratigraphic layers and complex near- surface geology Only intensive and site-specific investigation can infer, or reveal, such hydrological complexity . Moreover, local hydrological modelling at Catfield Fen (Gilvear et al., 1997) and other East Anglian fens has demonstrated the sensitivity of the fen water-table to near-surface hydrological parameters, including hydraulic conductivity and porosity I specific yield . Studies highlight the importance of local measurements of these parameters, but there are also questions of how to derive representative data (1.e. up-scaling point data derived from observations at specific point, for example, to ‘patches’ of 10 x 10 m and to small wetland units of 250 x 250m .

In this context, the Environment Agency have been tasked with licensing groundwater abstractions in a region which regularly experiences water scarcity, and are required to consider the impacts of the abstraction on the ecology of wetland Sites of Special Scientific Interest. Their approach to this has focussed on the development of regional groundwater models to quantify hydrological change (expressed as a change in the water-table) coupled with contract research on wetland ecohydrology { e.g. Wheeler et al., 2000; 2004)

However, given significant local variations in fen wetland hydrology, regional groundwater modelling undertaken will be unable to provide any more than a broad indication of their sensitivity to groundwater.abstraction. Rather, we suggest that a nested groundwater flow modelling approach 1s needed at this local (sub catchment scale) and site scale, supplemented by detailed ground investigations to determine the hydraulic parameters of the key deposits . We suggest that even then, uncertainties may remain (with respect to both the hydrology and quantifying the impacts on the ecology) . The effects on the wetland water-table of changes in groundwater levels in the principal local aquifer (the Crag) will vary depending, for example, on the porosity of the fen deposits  It 1s also possible that the rate and direction of groundwater movement to and from the wetland may change as a result of continued groundwater  abstraction.

Lack of attention to hydroecological studies.
The current focus of the EA methodology to assess the impact of abstraction on East Anglian fens largely focuses on hydrology, and specifically changes in the wetland water level. The inference in recent documents, is that if modelled groundwater heads to the vicinity of a particular wetland are not depressed by more than a few centimetres (e.g. 7cm at the Sunnyside borehole close to Mrs Myhils Marsh}, then it is deemed not to be affecting the site ecology.  However, it has been sugge sted that “the relationship between the hydrology of fens and the composition of their vegetation is not at all well understood” (Wheeler & Shaw, 1995) and “evidence suggests that the cumulative period of time for which a particular water level is exceeded provides a sensitive characterisation of hydrological regimes with regard to vegetation composition”.

Dealing with the complexity of the hydrology of Catfield Fen.
The hydrology of Catfield fen 1s generally acknowledged to be complex and that levels of understanding are incomplete (AMEC, 2012). It is apparent from local groundwater head level data and the hydrochemistry, that there is groundwater inflow to the site, and that this has an influence on the ecology. It is also likely that under certain hydrological conditions, there are periods when the direction of groundwater movement is reversed (i.e. there is groundwater outflow rather than inflow). Thus the links between the surface water and the groundwater systems are finely balanced, and small changes in surface and/or groundwater levels are critical in determining both the direction and rate of water inflow/ outflow. Observations of groundwater levels close to Catfield Fen suggest that the head differences between the Crag aquifer and fen deposits are in all cases only a few centimetres in magnitude . Although there are uncertainties on the extent and importance of local ‘clay windows’ between the aquifer and the surficial organic deposits, the fen appears very sensitive to hydrological change . For example, if groundwater levels in the Crag aquifer were to fall by only a few centimetres, the frequency and duration of water inflows will change, as will episodes when there is a reversed hydraulic gradient.

An important question here is whether it is possible to model the hydrology of the wetland at a scale sufficient to predict any changes in the wetland water table arising through groundwater abstraction . A further quest ion, is whether it is possible to quantify the changes in wetland ecology arising from a modified water -table regime.

In conclusion:
•    Water levels at Catfield Fen are likely to be highly sensitive to even minor changes in Crag groundwater levels arising from continued groundwater abstraction.
•    The current methodology to assess vulnerability to groundwater abstraction lacks the rigorous hydroecological component required.

•    There is considerable uncertainty in quantifying the links between the hydrology/hydrogeology and ecology of Catfield, and how the wetland will respond to further groundwater abstraction

Finally, we note (from Wheeler, 2004 page 9): ‘a groundwater model may be considered accurate if predicted water table levels are within 10cms of observed values, whereas a 10cm difference in water levels may mark a difference between the condition required by different vegetation communities. We must ask the real question; whether hydrological modelling can be undertaken with sufficient resolution as to provide valuable information to link with ecological thresholds’ .

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Document 3

 

Mr Richard Benyon MP

22 July 2013

Dear Richard,

Re:    Catfield Fen and Water Abstraction

Further to my letter to you of 4th June, I have been contacted again by my constituents Mr & Mrs Tim and Geli Harris. Mr and Mrs Harris were disappointed with the response I received from you to their concerns, which they felt did not explain adequately the decision not to call in the licence renewals for water abstraction near their land which are currently under consideration.

In order to understand better the basis upon which your decision had been taken, they requested from the Department copies of the briefings provided to you by Natural England and the Environment Agency on this subject. You will see from the attached letters from their solicitor that they were extremely unhappy with some of the statements they discovered had been made in those briefings, and have written to the authors directly to raise their concerns formally.

In light of this, I would be grateful if you could consider again the view put forward  by  Mr  and  Mrs  Harris  that  this  case  had  not  been  managed appropriately or effectively in particular by Natural England, and consider again their request, which I put to you in my previous letter, that the decision on the licence renewal be “called in” by the Secretary of State to ensure that all parties can have complete confidence in the robustness of the process.

I look forward to hearing from you as soon as possible.

Yours sincerely,

Norman Lamb MP
Member of Parliament for North Norfolk

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