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 defra.helpline@defra.gsi.gov.uk.  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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Document 4

Briefing   


This is a joint Environment Agency (EA) and Natural England (NE) briefing. It should be read in conjunction with the EA’s November 2012 briefing.

Background
Mr Harris owns Catfield Fen and he believes this is drying out due to water abstraction. This fen is of significant environmental value and is a component part of the Ant Broads and Marshes SSSI (which in turn is part of The Broads SAC and Broadland SPA) . The EA are currently considering two abstraction licence renewal applications submitted by Mr Alston , a neighbouring farmer.

Progress since November
Mr Harris and his technical advisors have been kept informed of discussions and provided with relevant information. Since January, EA and NE officers have met Mr Harris’s  technical advisors. The EA are currently finalising their conceptual understanding of the issues and site specifics and hope to publish their Appendix 12 consultation in the next few months. NE will then formally respond and this will then be followed by a public ‘minded to’ decision consultation .

Mr Overton’s abstraction licence variation renewal
Recently  the EA renewed an abstraction licence variation for another farmer, Mr Overton, approximately 1.7 kilometres east of the Ant Broads and Marshes SSSI. Mr Overton applied to renew and reduce by 25% the annual quantity of water authorised under a time limited variation. This reduction is greater than the recommendation made in the EA’s Habitats Directive Review of Consents which only required a reduction in drought years. The EA assessed this renewal of the variation in consultation with NE and concluded that, with an expiry date of 31 March 2018, the variation was acceptable and would not adversely affect either the Upper Thurne or Ant Broads and Marshes (see Appendix for details and determination report). During the determination period Mr Harris and his advisors requested that the EA dealt with this application in parallel with Mr Alston ‘s. Because of the licensing differences between the two the EA dealt with them separately. Mr Overton’s  application was for the renewal of a time limited element of a licence on reduced terms, not a full licence. The Review of Consents work for the Upper Thurne Broads and Marshes SSSI will address the non time limited element of the Overton licence which is to be reduced through the RSA programme. The recent application to renew the variation represented a stepped reduction towards this. The EA continue to receive objections to the issuing of this licence variation .

Mr Harris has criticised NE’s recent advice on the Overton abstraction licence application. He has questioned NE over the likely significant affect, the link between hydrology and ecology, and about their lack of referral  to specific evidence. NE’s advice was that the licence variation could be determined alone in relation to the Upper Thurne Broads and Marshes SSSI as a significant effect on the Ant Broads and Marshes SSSI was unlikely. Details of their considerations are in the Appendix .

NE’s role and the precautionary approach
NE’s role in this situation is to advise the EA. NE has confirmed to both Mr Harris and the EA that analysis of vegetation surveys and local site knowledge indicates that the Ant Broads and Marshes SSSI (including Catfield Fen) shows signs of
drying. The site is therefore assessed as in an ‘unfavourable ‘ condition . However, NE is not able to ascribe these signs of drying to a single cause.
NE’s advice to date has been mindful of the precautionary principle firstly when showing concern about expected drawdown  and agreeing with EA’s suggested mitigation and consequent EA conclusion of no adverse effect; secondly advising EA that appropriate assessment was needed for Mr Alston’s licences.  NE will advise on whether there is or is not reasonable scientific certainty as to the potential risks to
the site. The EA considers this advice when making their decision on the licence renewals as it will inform them of any potential adverse affects on the integrity of the European site.

Issues of disagreement with Mr Harris’ submission
The  EA have concerns regarding some of the assertions made in the Note prepared by Mr Harris’s barrister James Pereira . More detail is provided in the Appendix but in summary:


Mr Harris has questioned the independence of AMEC’s technical report. This was produced to a scope agreed with him. The EA maintain that the report is independent. Information about their relationship with AMEC has been published on their website and also  they have responded to several letters and Freedom of Information requests about this.
The EA has fully supported Mr and Mrs Harris and their technical advisors by providing access to its regional groundwater models and explaining what is required for them to have a working copy for their own use.
The technical views being put forward by Mr Harris’ advisors are being fully considered by the EA and NE as part of the overall assessment process . The EA have provided technical information , engaged in discussions and continue to liaise with Mr Harris’ advisors to support their understanding.
The EA have also kept those most involved updated throughout this determination process, including Norman Lamb MP and Mr Harris. And for reasons given in the Appendix the EA refute the allegations made by Mr Harris about procedural fairness. Responding to his numerous accusations and information requests has taken up
significant officer time and delayed the decision making process.

 

The decision process
To reach a decision the EA must formally consult NE via an Appendix 12 consultation . The EA will be using all the available evidence , and any further relevant information acquired through consultation , to make the decision . Due to high levels of public interest the  EA is doing more consultation and information provision than is usual or required, and will be consulting on its  ‘minded to’ decision in due course. All the renewal information , including the AMEC report and minutes of meetings between the EA and NE, are on the EA website at http://www.environmentagency.gov.uk/research/library/consultations/143536 .aspx

Working with the applicant
The EA have been discussing matters with Mr Alston and discussions have included NE as appropriate . The EA are exploring what alternative options may be available to him should either one or both of his licences not be renewed . Until the decision is made, Mr Alston can continue to abstract. He has concerns and is unhappy about this renewal process and has been discussing this with the NFU.

Potential outcomes
The EA will only decide to issue the licences if they conclude , following assessment and advice from NE and consideration of all the available evidence, that there is no adverse effect to the designated sites and that there is no reasonable scientific doubt. Issuing these licences could lead to a legal challenge for not following the precautionary principle under the Habitats Directive.
The EA will refuse the applications if it judges that the information about the fen drying out and other advice received indicates the risk to the site is too great or too uncertain in line with the precautionary principle. A refusal to grant these licences could lead to an appeal against this decision based on the implementation of the Habitats Directive.

It is also possible that the EA could decide to grant one application and refuse the other.

Contacts:
NE: Wanda Fojt
EA: Marcus Sibley, Environment Manager

22 April 2013

Appendix

The Overton licence variation and Natural England’s role

Competent authorities (such as the Environment Agency in this case) must proceed in accordance with the precautionary approach when making decisions which may affect a European site. In light of this , NE’s role is to provide advice to the EA as to whether there is or is not reasonable scientific basis for linking the abstraction licences to the condition of the SAC and whether there is or is not
reasonable scientific certainty as to the potential risks to the site to decide whether an adverse effect
on the integrity of the European site can be ruled out.

Mr Overton wanted to renew a time limited variation to a non-time limited licence, the variation authorising abstraction from a second abstraction point. The non-time limited licence was assessed through the EA’s Review of Consents work (RoC) for the Upper Thurne Broads and Marshes SSSI (also part of The Broads SAC and Broadland SPA) and deemed to have the potential to adversely impact the SSSI during drought years.

A 25% reduction in abstraction quantities authorised by the non-time limited licence in drought years was recommended in result of the RoC and this is being dealt with through the Restoring Sustainable Abstraction (RSA) programme  (as was a 25% year round reduction to the Anglian Water public supply abstraction at Ludham, which was implemented in 2011) .

Mr Harris has questioned NE’s advice on the ‘likely significant effect’, claiming that NE has not linked hydrology and ecology, and has not linked its advice to the specific evidence.

NE is confident in the evidence provided by the EA (as laid out in the determination report below) that the Overton licence variation could be determined in relation to the Upper Thurne Broads and Marshes SSSI alone, without reference to the Ant Broads and Marshes SSSI.

NE reviewed evidence  provided by the EA against the published Ecohydrological Guidelines (Environment Agency 2004 and 2010) which link water levels, hydrochemistry and other attributes with fen and wet grassland vegetation communities.   NE used a wide range of ecological information to formulate its advice but did not specifically include the 2010 Fen Ecological Survey which was referred to by the Broads Authority.  This survey focuses on changes to vegetation communities over time; it does not link changes to a cause.

NE’s advice to the EA was mindful of the precautionary principle. It advised of concerns over predicted drawdown; however, in light of the suggested mitigation of a 25% reduction in licences quantity and the time limited nature of the licence, NE was confident that there would be no adverse effect.

Mr and Mrs Harris have also criticised NE’s interaction to date, both with the Harris’s and the EA, over Mr Alston’s applications .  In relation to the latter, Mr and Mrs Harris consider that the close working of the two bodies risks the achievement of the objectivity and impartiality required. The close working of the bodies on this case is no different from that on other cases . Tt:le appropriate assessment of Mr Alston ‘s applications is not complete . To date NE has demonstrated use of the precautionary approach by advising that the applications will be likely to have a significant effect on Ant Broads and Marshes SSSI.  Natural England will consider all available evidence in forming their further advice , including reports provided by Mr and Mrs Harris.

Issues of disagreement with Mr Harris’s submission

There are still issues around the report the EA’s consultants, AMEC, produced to investigate concerns that Catfield Fen is drying out. Despite being involved in the scoping of the report and being given opportunity to comment on the draft, Mr Harris and his supporters are challenging its independence due to the fact that the EA use AMEC in other areas of its work , such as development of its groundwater model. Such practice is not unusual for an organisation as large as the EA, or indeed AMEC.

The EA have asserted the independence of AMEC and have published information about the relationship on their website, in addition to responding to several letters and Freedom of Information requests.

Mr Harris has also challenged the EA on the groundwater model it is using. He asserts that it is a ‘nationwide hydrology model’ and that the EA will not allow him access to it. The model is in fact a local one with assessment cells on the Catfield site, and the EA have informed Mr Harris on more than one occasion that provided he buys the relevant third party licences (details of which they have provided to him), he and any other third party user can have access to it. In the meantime the EA have provided Mr Harris with technical information and supported access to the model for his advisors by demonstrating the model and explaining its technical development

The EA is fully aware of the technical views being put forward by Mr Harris’s advisors and are considering them as part of the overall assessment process. They have provided technical information and continue to liaise with Mr Harris’s advisors to support their understanding .

Responding to accusations of foul play has been taking  up officer time and is delaying the decision making process.

Other relevant information

Other work that is relevant to this site is a proposed investigation and options appraisal looking at the possible impact of the Anglian Water public supply abstraction at Ludham on the Ant Broads and Marshes SSSI, which will be taken forward in the EA’s Restoring Sustainable Abstraction programme and will include the EA and NE jointly looking at how vegetation monitoring might complement these investigations. NE will be considering this with the Broads Authority and interested bodies. The Ludham source was subject to a 25% reduction in abstraction quantities in 2011 as a result of the Habitats Directive RoC for the Upper Thurne Broads and Marshes SSSI.

 

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23 Comments

  1. Mark

    There has been recent (April 2013) EU case-law dealing with integrity of European Protected Sites; the "Sweetman Case". I've written an opinion piece onmy website's blog (see http://richardwilsonecology.wordpress.com/2013/07/15/adverse-integrity/) which discusses the implications of this decision on developers.

    Richard

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    • Mark

      Richard - many thanks, I will read and learn.

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      • Mark,

        The Sweetman Case is very interesting in my opinion in that it significantly (some may argue very significantly) increases the threshold where 'damage' (in layperson's parlance) is acceptable on a European Protected Site. The specifics in the Sweetman Case was that a loss of < 0.1 % of a European Protected Site, where the loss involves a habitat for which the site has been designated, will result in the site's integrity failing. The judgement effectively stated that once a European Protected Site is designated, it is very difficult (though not impossible) to propose a plan or project that may result in even what everyone would argue is minimal damage. This will have, in my opinion, far reaching consequences beyond physical damage of a site (i.e. land take). I see it as having direct consequences for Catfield Fen in that the abstraction of water is likely having a negative effect on the site's integrity. And note that the judgement requires that the precautionary principle is applied and that the competent authority must be certain beyond reasonable scientific doubt that it isn't. Given the debate, this implies there is no certainty (otherwise there would be no debate). So I think there is a strong argument for the abstraction licence to be amended or terminated.

        This case-law has, for that matter, a potentially interesting implication for grouse shooting estates that reside within European Protected Sites. In this latter example, there is an argument in my opinion, though not as robust as if a piece of land is lost, that they WILL (note will, not might) be required, by European law and as a consequence of this case-law, to return these sites back to favourable conservation status for which they were originally designated. If they don't, then there is a breach under Article 6(3) of the Habitats Directive and the UK Government would potentially be liable to significant fines. The following document lists those European Protected Sites that include hen harrier within their citation (http://jncc.defra.gov.uk/pdf/UKSPA/UKSPA-A6-47A.pdf). The argument would be that they would have to restore the site's back to the state upon which they were originally designated, i.e. return hen harrier for these sites! This argument is, admittedly weaker on this specific, only because the Sweetman Case dealt with loss of physical habitat (limestone pavement). Limestone Pavement can't 'move' whereas obviously an animal can. So the rebuttal would be that the loss of 'some' suitable habitat for hen harrier (or any other cited species) could be mitigated elsewhere within the same European Protected Site. A stronger argument could be that the conversion of the moors to 100% heather cover is equatable to a loss of integrity if by doing so, it reduces the viability of hen harrier (in the same way as concreting it over would). However, there is presumably a threshold (undefined as yet in case-law) where this rebuttal would fail. For example, if the site has been designated for five pairs of hen harrier and there are currently none, this would strongly suggest a loss of integrity; if there were only four pairs, may be this (in law) would be acceptable. It's a complex argument but given the lack (or almost lack) of breeding hen harrier on England's European Protected Site's network, there is a plausible argument to be had, in my opinion. Is there an organisation that would be prepared to hone the argument and take it on; perhaps one that would like to give nature a home?

        I should like to thank Penny Simpson (an Environmental Lawyer) for bring this case-law to my attention in the first instance.

        Richard

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        • Mark

          Richard - brilliant comment (and say 'Hi!' to Penny the next time you see her from me).

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        • MK

          Not at all Richard's fault of course, but in our polarised politics I can see this argument turned on it's head and advanced by those in favour of EU withdrawal because of the 'inconvenience' of environmental protection "standing in the way of economic growth" (in other words a perceived obstacle to a short term boom built on sand to get Cameron and Osbourn re-elected).

          Expect stories in the right wing press such as "European court stands in the way of British economic recovery" and "Boris fury as Brussel's bureaucrats quosh his loony airport idea", (actually maybe not quite like the last bit of that one), briefing by sources close to various anti-EU cabinet ministers and lots of interviews on tv news channels with frightful Eurosceptic Tory backbenchers with too much of a liking for a tv camera .... aaargh.

          Let's hope for Catfield Fen and all our nature's sake that the argument as put forward in Richard's comment and blog prevails and somehow we stay in the EU so our wildlife benefits.

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          • MK,

            I agree that the Sweetman Case could add fuel to the proverbial fire for the UK to leave the EU; or as David Cameron has said, re-negotiate our relationship and remain within it. As I understand, the renegotiation would be to remain within the European Economic Area (EEA) but outside the European Union. This way, the UK can still trade with the EU member states but not fully comply with all the Directives etc that full membership requires. Readers will not be surprised that the suite of environmental legislation will not be included in the laws that members of the EEA will require to follow (as things currently stand for existing EEA members). This will obviously include the Habitats Directive but also the statutes that deal with clean air, drinking water and bathing water. Will David Cameron wish to return to a 1970s policy of 'dilute and disperse' when dealing with raw sewage in our seas? This will probably increase blue-green algae - a nice picture to conjure up for the 'blue' party being the greenest Government ever!

            If readers of this Blog want to get a 'taste' of what ecologists are experiencing 'on the ground' when it comes to detractors agitating against the profession/ discipline, I would suggest you read this thread, starting with the Telegraph article (http://www.linkedin.com/groupItem?view=&gid=4306428&type=member&item=210483503&qid=b20b8b8e-8c57-49c9-a604-0e5413195155&trk=group_items_see_more-0-b-ttl) [I'm assuming the thread is open to all].

            Richard

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  2. John G

    Having visited the Catfield site since 1969, when in the care of the previous owner, there is no question of deterioration due to water unavailability.
    It is a sad fact that Environment Agency, Natural England and the Broads Authority, amongst others, regularly demonstrate that they are not entirely reliable custodians of our important wildlife or SSSIs.
    It has been said, with some honesty, that BESL, having persuaded these agencies of the efficacy of their drainage (and pseudo-flood prevention) schemes, have caused more damage to the wildlife of Broadland than all the North Sea floods during the past century or so.

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    • Mark

      John G - welcome and many thanks.

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  3. bimbling

    Not totally au-fait with the respective roles of the EA and NE but my understanding is that it is THE DEVELOPER required to demonstrate beyond reasonable scientific doubt that there will not be an adverse effect on the integrity of the site.

    In order for Mr Alston to receive his licence, surely he has to demonstrate to the satisfaction of EA who will consult EN, that his proposal will not adversely effect the integrity of the site.

    Am I wrong in wondering why the taxpayer is picking up the tab for all this cogitation?

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    • Mark

      bimbling - I don't think you are wrong. EA seems to think it is on the side of the user of water rather than of the use of water. This may be because it has been told that farmers are its stakeholders and not reminded that it serves the public.

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  4. Trimbush

    Water abstraction?

    Just imagine then what problems the future would hold for us all if “global warming” was real!

    But I'm OK - I've got a well!

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    • Mark

      Trimbush - two corrections. If it 'were' real please - if plus subjunctive! And it is real (but I thought I'd try to correct your English as I have a bigger chance of success there than trying to correct your view on climate change).

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      • Trimbush

        Just listened to Radio 4 - Science Right or Left

        Conclusion -" most scientists are liberal left"

        Can't disagree with that! Cultural Ideological Groupthink - very sad

        data observations argument ? climate change ? phew!

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        • filbert cobb

          Debate and comments here
          http://www.bishop-hill.net/blog/2013/8/7/political-science.html

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  5. Trimbush

    Of course it’s no laughing matter but I plea for the big / bigger picture

    Whilst a Business / IT consultant I worked for many top-notch organisations who were (then) mostly interested in getting the Monthly Payroll out on time –

    I ‘introduced’ them to:-

    1- ‘Capacity Planning’ and ‘2- Disaster Recovery’

    “Standing up for Nature” – no different!

    Water? It’s a free resource (to the UK at the moment) we either have too much or not enough and it’s always in the wrong place.

    We don’t manage it (properly) – it manages us!

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    • Mark

      Trimbush - we don't manage it properly and we don't give nature its share.

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    • Jonathan Wallace

      A free resource? Not exactly - it is bought and sold for pound notes. Unfortunately dragonflies and fish and water lilies and herons don't have a say in whether 'their' water is sold; we humans just assume the ownership and trading rights. Natural England is supposed to act on nature's behalf in these transactions but doesn't seem to put up much of a fight.

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      • AdamM

        Interesting point about paying for water. The fees levied on abstraction licences cover only the EA's costs of administering the sytem and not the wider externalised costs of abstraction. Most people would acknowledge that they are so low that they don't form any incentive to increase efficiency of use or reduce environmental damage. An increase in charges that better reflected those externalised costs would provide an incentive for greater efficiency, reduce environmental problems. Most importantly though it would provide a source of funding for addressing the massive compensation problems associated with compulsory change of licences - a problem that successive governments of both colour have failed to address.

        A bit of campaigning on this point Mark (ie the bigger picture) rather than individual decisions might be more productive?

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        • filbert cobb

          "incentive to increase efficiency"

          Maybe paying more for less would help. Assuming the need for abstraction is prompted by the cultivation of crops other than combineables or flowers, this is a legitimate use of groundwater - ie to grow crops for direct human consumption, as farmers are exhorted to do.

          There is adequate technology available to deliver very efficient (ie computer controlled, minimal waste) irrigation based on soil conditions and crop growth but this needs much greater uptake. It could be driven by licencing conditions - high value / high risk crops could stand the investment and abstracted volume would not be squandered. Then everyone would be happy - within the range of happiness-capability of conservationists and farmers, which isn't much.

          This might be more rewarding for all parties than waiting for new varieties bred specifically to perform under stressed conditions - a government policy which leans towards excessive faith in GM, imho.

          Professor Kibblewhite expresses similar views here: http://www.farmersguardian.com/home/latest-news/engineering-bodies-disappointed-at-agri-tech-strategy/57767.article

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          • AdamM

            You are correct Filbert, but just one other point on this. In most places, for most of the time, agriculture isn't a big problem as they only take 2% of the water. Public water supply is the issue.

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  6. MK

    In some ways the most interesting and revealing bit of the briefing is the penultimate paragraph:

    "Responding to accusations of foul play has been taking up officer time and is delaying the decision making process."

    Which seems both petulant and inflammatory. It's not as though Mr and Mrs Harris are challenging the EA and NE just for the good of their health...

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    • Mark

      MK - exactly.

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  7. Fen Lakes

    I have a very similar problem I've been fighting for eight years.

    Although the abstraction is illegal, the EA have granted an unlimited transfer licence because the abstraction can not be controlled. The groundwater modeling has been manipulated to fit their conceptual model.

    .......and the EIA has been based on a fraudulent scheme so negating any of its findings.

    In their wisdom the planning authority and the EA decided to implement a destructive EIA process rather than adopt the precautionary approach after the JR and now in addition to having very little water on Carleton Fen, the water we do have is turning magenta with sulphur bacteria.

    Make sure you keep an eye on the water plants any rapid increase in plant growth will rapidly escalate the water imbalance and cause serious damage, sure your experts have their fingers on it.

    Good luck with the fight.

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