1

IN THE MATTER OF

THE WATER RESOURCES ACT 1991

AND

THE ENVIRONMENT AGENCY’S PROPOSED CHANGES TO FOUR ABSTRACTION LICENCES HELD BY

SOUTHERN WATER AUTHORISING ABSTRACTION FROM THE RIVERS ITCHEN AND TEST, AND ONE

ABSTRACTION LICENCE HELD BY ENVIRONMENT AGENCY AFFECTING THE CANDOVER STREAM

PLANNING INSPECTORATE REFERENCES: RSA/WR/00016/17/18

STATEMENT OF CASE

SALMON AND TROUT CONSERVATION UK

and

WWF

Introduction

1. This statement is made by Salmon & Trout Conservation UK (S&TC UK) and WWF in relation

to the Environment Agency’s proposed changes to four abstraction licences held by

Southern Water authorising abstraction from the rivers Itchen and Test and one abstraction

licence held by the Environment Agency affecting the Candover stream.

2. This statement is supported by the Test and Itchen Association, which has been representing

the interests of the riparian owners of the Test and Itchen and their tributaries for more

than one hundred years. Although riparian owners are not required to be members of the

Association, the great majority of them are. The Association currently has over one hundred

and fifty riparian owner members who between them own more than 80% of the Test and

Itchen.

3. This statement is also supported by the Upper Itchen Initiative, a recognised group of ten

years standing concerned with the protection of the Upper Itchen river catchment and its

tributaries. The group comprises of statutory bodies, riparian landowners (which include all

the owners potentially affected by the Candover proposals) business interests and local

stakeholders.

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4. This statement is also supported by the Hampshire & Isle of Wight Wildlife Trust (registered

charity number 201081), the leading nature conservation charity in Hampshire, with 27,000

members and 900 volunteers. The Trust is part of the UK-wide partnership of 47 Wildlife

Trusts with a collective membership of more than 800,000 people.

5. This statement is also supported by the Wessex Chalkstream and Rivers Trust, a charity

dedicated to the guardianship and protection of the rivers of the Wessex Region from the

Dorset Stour in the west to the Meon in the east.

6. This statement is also supported by the Wild Trout Trust, a charity working across Britain

and Ireland to promote the conservation of wild trout and their habitats, ecosystems and

environment.

7. The statement is also supported by the Test Salmon Group, Chalk Stream Fishing Limited

(company number SC354250), The Piscatorial Society, Mr. Andrew Impey, Mr. Simon

Ffennell, Mr. Zam Baring, Mr. Mark Baring and Mr. Roger Harrison, all having interests in the

fishing rights on the Itchen or Test, or being riparian landowners.

Background

8. S&TC UK is a charity registered with the Charity Commission for England and Wales

(Registration No. 1123285). It is also a company limited by guarantee registered in England

and Wales (Registration No. 5051506).

9. S&TC UK was established as the Salmon & Trout Association in 1903 to address the damage

done to UK rivers by the polluting effects of the Industrial Revolution. Since then, S&TC UK

has worked to protect fisheries, fish stocks and the wider aquatic environment for the public

benefit. S&TC UK has charitable status in both England and Scotland (as S&TC Scotland) and

its charitable objectives empower it to address all issues affecting fish and the aquatic

environment, supported by robust evidence from its scientific network, and to take the

widest possible remit in protecting salmonid fish stocks and the aquatic environment upon

which they depend.

10. For many years, S&TC UK has been running a chalkstream campaign focussed on addressing

those negative impacts on chalkstreams caused by agricultural diffuse pollution, point

discharges from sewage works, watercress or trout farms and over-abstraction of water

from the rivers and their groundwater sources. This has included a detailed complaint to the

European Commission over the failure of the UK, under Article 6(1) of the Habitats Directive,

to establish the necessary conservation measures, appropriate management plans and

appropriate statutory, administrative or contractual measures which correspond to the

ecological requirements of the natural habitat types and species of chalkstreams in England

designated as Special Areas of Conservation (SACs), and, under Article 6(2) of the Directive,

to take appropriate steps to avoid the deterioration of natural habitats and species in such

chalkstream SACs. Those failings relate to the impacts caused by low flows, over-abstraction

of water, including large abstractions for public water supply.

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11. WWF is a charity registered with the Charity Commission for England and Wales

(Registration No. 1081247). It is also a company limited by guarantee registered in England

and Wales (Registration No. 04016725). It was founded in 1961 and was formerly known as

the World Wildlife Fund.

12. WWF in the United Kingdom runs programmes alone or in partnership with funders and

other complementary organisations and undertakes campaigning activity to further WWF

objectives.

13. From 2014 to 2017, WWF has led a European Union-funded ‘WaterLIFE’ project, with The

Rivers Trusts and Westcountry Rivers Trust, to improve the health of UK rivers, producing a

wealth of guidance, reports, findings, films and case studies, built into the Catchment Based

Approach , which works with NGOs, statutory water companies (such as Southern Water),

local authorities, Government agencies, landowners, angling clubs, farmer representative

bodies, academia and local businesses to deliver the objectives of the Water Framework

Directive.

14. WWF also established the ‘Itchen Initiative’ to identify solutions to the challenge of over-

abstraction and its impacts. The Initiative brought together leading water industry and policy

experts to develop a compelling and coherent response to the challenges of over-

abstraction. The Initiative was intended to inform both DEFRA’s 2011 White Paper on the

water industry and OFWAT’s review of the regulatory arrangements for the water industry in

England and Wales, and was based on a series of background discussion papers prepared by

a number of independent experts. Both Southern Water and South West Water co-operated

in testing some of the approaches proposed using their water resource system models. The

Initiative benefited from the advice and guidance of an expert Advisory Group composed of

Lord Deben, Jonathon Porritt, Sir Graham Wynne, Tim Keyworth (OFWAT), Neil Whiter

(South West Water), Meyrick Gough (Southern Water) and Professor George Yarrow.

15. In 2014, WWF also published a detailed report - “The State of England’s Chalk Streams” (see

Annex doc 1) with support from Coca-Cola Great Britain and Coca-Cola Enterprises, which

concluded, in relation to English chalkstreams, that “only 23% are classed as having attained

Good status and a third are classed as Poor or Bad. Although only 2% of chalk streams

designated as SSSIs are deteriorating, 85% are in unfavourable condition and half will not

reach favourable condition unless there are changes to management or external pressures”.

16. Jointly, WWF and S&TC UK are clear that improving river flows is highly likely to deliver

multiple benefits which will help to address some of the other problems on the Test and

Itchen rivers, including reducing the impact of sources of urban and agricultural diffuse

pollution.

Overview of proposed changes to Itchen, Testwood and Candover licences and support for the

proposals made by the Environment Agency

17. The main objectives of WWF and S&TC UK have been to see timely implementation of a

sustainable abstraction regime on both the Itchen and the Test, to achieve compliance with

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the Habitats Directive and the Water Framework Directive on both rivers and to improve the

protection afforded to the SSSIs and all associated protected wetland areas on both rivers.

18. WWF and S&TC UK made representations in relation to proposed changes to each of the five

licences during the respective public consultation phases.

19. At this Inquiry, WWF and S&TC UK fully support the proposals for each licence brought

forward by the Environment Agency, and supported by Natural England, as a necessary,

albeit highly belated first step.

20. WWF and S&TC UK consider that the changes to the five licences being sought by the

Environment Agency in this Inquiry are necessary changes to ease the external pressures on

the chalkstreams generated by demand for water for public water supply and to comply

with the Water Framework and Habitats Directive.

21. Specifically, for surface waters (as here), Article 4(1)(a)(i) of the Water Framework Directive

required Member to “implement the necessary measures to prevent deterioration of the

status of all bodies of surface water” from 22nd December 2000.

22. In addition, Article 4(1)(c) of that Directive obliged Member States to ensure that the

standards and objectives for ‘protected areas’ (for the purposes of this Inquiry, the Itchen

and Candover) were met by 22nd December 2015. Those obligations, read across from the

Habitats Directive, are to maintain or restore, at favourable conservation status, the natural

habitats and species of wild fauna and flora of Community interest.

23. General lack of resources or other similar issues (including any competing domestic law

requirements) are simply not a lawful basis for non-compliance with the requirements of the

Directives in that regard. See, for example, Case C-301/10, Commission v UK, making clear at

paragraph 66, “a Member State may not plead practical or administrative difficulties in order

to justify non-compliance with the obligations and time-limits laid down by a directive”.

24. The only lawful basis for not meeting the obligations in Article 4(1) by 22nd December 2015

(and ongoing, since) would have been if, by Article 4(4)(a):

“(i) the scale of improvements required can only be achieved in phases exceeding the timescale, for reasons of technical feasibility;

(ii) completing the improvements within the timescale would be disproportionately expensive;

(iii) natural conditions do not allow timely improvement in the status of the body of water.”

Southern Water has not claimed, nor does it now claim, any of those to be the case. Indeed, plainly none of them is the case.

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25. It follows that, as these objectives had to be met by 22nd December 2015, and have not yet

been met, the UK is in breach of the Water Framework Directive and has been since that

date. The Environment Agency’s proposals are now necessary to remedy that breach.

26. Importantly, the obligations to secure the outcome required by European Directives, and to

remedy existing breaches, fall not only on the Environment Agency, but also on the

Inspector himself, as confirmed in para 55 of the ECJ Case C-72/95 (the “Dutch dykes” case),

which noted, “that the obligation of a Member State to take all the measures necessary to

achieve the result prescribed by a directive is a binding obligation imposed by the third

paragraph of Article 189 of the EC Treaty and by the directive itself…That duty to take all

appropriate measures, whether general or particular, is binding on all the authorities of

Member States including, for matters within their jurisdiction, the courts”1. This would also

include the Inspector.

27. It follows that, as below, allowing this appeal would be unlawful. The Inspector is asked to

reject the appeals. In the event that the Inspector is contemplating allowing them, then the

Inspector is asked fully to explain how that result can be considered consistent with the

obligations under the Habitats and Water Framework Directives.

The Itchen licences

28. WWF has been involved in discussions with Southern Water and the Environment Agency

since 2008 to try to assist the achievement of the requisite Itchen sustainability reductions

on the Itchen.

29. Similarly S&TC UK has been actively involved with the Environment Agency for many years,

seeking to improve flows in the Itchen and Test to protect wild salmonid populations on

both rivers.

30. WWF and S&TC UK had hoped that, by now, Southern Water would have voluntarily made

the necessary changes to its abstractions on the Itchen.

31. For example, in the detail of the sustainability reductions, WWF supported the proposal for

the monthly abstraction limits for the summer period.

32. Southern Water confirmed to the Hampshire Water Resources Steering Group (which

includes the Environment Agency and WWF) in 2014 that the significant reductions in

demand, achieved through a universal metering programme, meant that they could

implement restrictions on summer monthly totals then, without any impact on deployable

output.

1 Judgment of the Court 24

th October 1996, in Case C-72/95, Reference to the Court under Article 177 of the EC

Treaty by the Nederlandse Raad van State (Netherlands) for a preliminary ruling in the proceedings pending before that court between Aannemersbedrijf P. K. Kraaijeveld BV and Others and Gedeputeerde Staten van Zuid-Holland http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:61995CJ0072&from=EN

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33. At the time, and in the three years to 2017, WWF and S&TC UK have continued to urge

Southern Water and the Environment Agency to implement (either by voluntary means or, if

necessary, by imposed licence changes) those summer monthly limits as soon as possible.

34. However, the requisite changes have not been voluntarily offered by Southern Water and

now require to be imposed.

35. Specifically, WWF and S&TC UK strongly support the implementation of a Hands-Off Flow

condition to ensure that all abstraction ceases when the flows (at Allbrook and Highbridge)

drop below a critical level.

36. However, while the proposed Hands-Off Flow of 198 ml/d is better than none at all, there is

credible and scientifically robust evidence to suggest that this Hands-Off Flow should be set

higher – at least at 224 Ml/d.

37. In 2009, WWF commissioned independent research2 from Professor Wilby (see Annex doc

2) to independently review the evidence compiled as part of the Review of Consents and

look at the impacts of abstraction and flow on the macroinvertebrate communities. The

report of Professor Wilby’s work was submitted as part of WWF’s representation on the

Itchen changes and was shared in 2009 with the Environment Agency and Southern Water.

38. This work showed a clear decline in macroinvertebrate populations below the 224Ml/d level

and concluded that flows dropping below this, towards and below the 198 Ml/d level, risked

causing significant damage. Professor Wilby therefore concluded that 224Ml/d provided a

Hands-Off Flow target that would better protect the integrity of the River Itchen SAC.

39. Professor Wilby’s proposed Hands-Off Flow figure (224ML/day) was derived from

Environment Agency data. While it is understood that the Environment Agency is committed

to performing, by 2021, a similar exercise as that carried out by Professor Wilby for WWF in

order to determine new flow targets for the Itchen, that is highly likely to conclude that the

Itchen Hands-Off Flow condition in the Itchen licences held by Southern Water will need to

be made more restrictive than that currently proposed, both for the purposes of achieving

favourable conservation status under the Habitats Directive, but also to avoid deterioration

in ecological status, as required by the Water Framework Directive.

40. This is also supported by S&TC UK and it is understood by WWF that Natural England has

also advocated such a position.

2 Wilby, R. 2009. An assessment of invertebrate-based target flows for the River Itchen, Hampshire. Technical

note produced for WWF. This Technical Note offers an independent assessment of the methodologies, key scientific findings, and processes of the Environment Agency’s Review of Consents for the River Itchen, Hampshire. Attention is focused on targets emerging from an assessment of low flow requirements of the in-stream macroinvertebrate community.

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41. If the Environment Agency were to act now on a strictly precautionary approach, as part of

its duties under the Habitats Directive, on the basis of the scientific evidence, it should

implement a Hands-Off Flow of 224 Ml/d on Southern Water’s abstraction licences.

42. It is therefore apparent that the Environment Agency’s proposals in 2017, at a Hands-Off

Flow of 198Ml/d, are already a compromise position, reached in part as a response from the

Environment Agency to concerns raised by Southern Water over the available of sufficient

water resources in times of drought.

43. It is important to consider the considerable delays so far incurred.

44. The Habitats Directive was adopted on 21st May 1992 and given effect by The Conservation

(Natural Habitats, &c.) Regulations 1994 in England and Wales. These Regulations have since

been repealed in England and Wales and replaced by The Conservation of Habitats and

Species Regulations 2017.

45. Regulation 50 of the 1994 Regulations - Review of existing decisions and consents, &c. –

reproduced below, set down the requirement for a review of existing consents, in effect to

apply retrospectively the test in Article 6(3) of the Directive to existing plans or projects

affecting SACs, which therefore included the Itchen, and Candover abstraction licences:

50.—(1) Where before the date on which a site becomes a European site or, if later, the

commencement of these Regulations, a competent authority have decided to undertake, or

have given any consent, permission or other authorisation for, a plan or project to which

regulation 48(1) would apply if it were to be reconsidered as of that date, the authority shall

as soon as reasonably practicable, review their decision or, as the case may be, the consent,

permission or other authorisation, and shall affirm, modify or revoke it.

46. The River Itchen was proposed as a Site of Community Importance (SCI)3 in March 1998,

confirmed as an SCI in December 2004 and designated as an SAC in April 2005.

47. The Itchen Site Action Plan, which sets out the consent changes and modifications required,

was published in 2007, after the completion of the Review of Consents process that began in

2005.

48. Since 2005, both WWF and S&TC UK-UK have made many representations to the

Environment Agency supporting its proposed changes on the Itchen SAC and seeking their

early implementation. WWF has been involved in detailed discussions with Southern Water

and the Environment Agency since 2008 to try to achieve the requisite Itchen sustainability

reductions necessary on the Itchen (and the associated changes at Testwood).

3 Sites of Community Importance (SCIs) are sites that have been adopted by the European Commission but not

yet formally designated by the government of each country.

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49. In that context, the first of its four objections, (i) to (iv), made by Southern Water’s objection

on the section 52 proposal by the Environment Agency to make changes to the three

abstraction licences on the Itchen (SWS, 15th December 2016), that the proposed changes

are somehow ‘immediate’, and therefore provided Southern Water with too little notice, is

simply not borne out by the facts.

50. Although there is no timetable laid down in the Habitats Directive, within which favourable

conservation status of SACs must be achieved, the delay in implementing the Site Action

Plan for the Itchen is undermining the achievement of the obligations placed on the UK by

that Directive.

51. In its representation of 13th December 2016, WWF welcomed the Environment Agency’s

proposal to implement the long overdue sustainability reductions on Southern Water’s

lower Itchen abstraction licences and expressed its disappointment that it has taken so long

to bring forward the proposed changes, suggesting that the Environment Agency needed

implement the sustainability reductions on the Itchen at once and, in doing so, shift the

burden of risk from the environment and onto the company, to add momentum and

escalate the sense of urgency in finding a sustainable solution that can make good any

arising deficit in water resources available to Southern Water .

52. It has been made clear by the European Commission that indefinite or prolonged delay in

implementing the Habitats Directive is not acceptable if maintenance or restoration of

habitats or species of Community interest is thereby threatened. For example, in relation to

a recent Dutch case, the Commission noted that “whereas the Directive does not prescribe a

precise deadline by which Member States must achieve favourable conservation status of

species and habitat types of Community interest, it is obvious that concrete and efficient

measures need to be taken without delay [in the Western Scheldt] to avoid irreversible

deterioration of this important ecosystem”4.

53. That in 2017, the required protection of the Itchen SAC has not yet been achieved is

unreasonable, by any measure, and therefore in breach of the Habitats Directive.

54. Further, the Water Framework Directive makes clear that the deadline for implementing the

measures to secure conservation objectives in water-dependent Natura 2000 sites (such as

the Itchen SAC) was 22nd December 2015 at the latest (unless the time extension conditions

were met, which is not claimed to be the case here, as above). The sustainability reductions,

identified through the Review of Consents process in 2007, are the minimum necessary to

ensure the UK moves towards compliance with the Habitats Directive on the Itchen SAC and,

as such, the Environment Agency had a legal duty to implement those changes by 2015.

Recall that those changes were confirmed by the Environment Agency as necessary to

comply with the Habitats Directive over ten years ago.

4 Joint Answer given by Mr Potocnik on behalf of the European Commission - European Parliament Written

Question E-0067402/11 15th September 2011

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55. In that sense, WWF and S&TC UK consider that any further modifications to the Environment

Agency’s proposals now, that would have the effect of reducing this Hands Off Flow further

than has been proposed , or allowing greater take of water during low flows on the Itchen,

would be unlawful.

56. Even if Article 6(4) of the Habitats Directive (‘IROPI’) is now engaged, as Southern Water

argues, the failure to meet Article 4(1)(c) of the Water Framework Directive by the 2015

deadline, means that the UK remains in breach of European law; and, as above, the

Inspector is obliged to act to avoid that result, here by rejecting the appeal.

57. In summary, as the changes identified in the Itchen Site Action Plan to abstraction licences

affecting the Itchen have still not been brought into effect, and there is no prospect of them

being brought into practical effect before 2018, over a decade since the Site Action Plan was

published, the UK is in clear breach of its legal obligations under the Habitats Directive.

58. Further, as the Water Framework Directive makes clear, the deadline for implementing the

measures to secure conservation objectives in water-dependent SACs was December 2015

at the latest.

59. If the changes now being sought by the Environment Agency are not brought into effect in

2018, the UK will continue in breach of the Habitats Directive and the Water Framework

Directive.

Candover

60. WWF and S&TC UK support the proposal to decrease the abstraction on the Candover

Stream.

61. The environmental imperative behind the proposed changes is, It appears, accepted by

Southern Water which “no longer challenges the EA’s proposed changes to its Candover

licence in respect of normal operation of groundwater abstraction and discharge to the

Candover stream” (SWS Provisional Case November 2017 , para 21, as at 23rd November

2017).

62. However, in December 2014, WWF and the Hampshire and Isle of Wight Wildlife Trust wrote

to the Environment Agency and to Southern Water to express concern at the proposal to use

the Candover augmentation scheme, to use sensitive chalkstream headwaters to allow for

increased downstream abstraction at times of very low flow, is unsustainable in principle.

63. In their representations, WWF and S&TC UK urged the Environment Agency to go further

and decommission the Candover abstraction site completely, reducing abstraction to zero,

and, if relevant, donating the land to the Hampshire Wildlife Trust to manage as a wildlife

reserve.

64. There is insufficient scientific knowledge of the likely ecological impacts of the cone of

depression that is created from increased groundwater abstraction at Candover, with the

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consequence that the ecological impacts of the Candover abstraction cannot be known to

the degree that would be required to pass the site integrity test in Article 6(3) of the

Habitats Directive.

65. It is already known that the Itchen chalk groundwater body, which underpins the Itchen SAC,

is at poor quantitative status. Any abstraction at Candover will likely make this worse.

66. Furthermore, the Candover water bodies, the upper Itchen SSSI and Itchen Chalk

groundwater bodies are failing to meet statutory objectives. While this currently is believed

to be due to water quality issues, there is a clear risk that any abstraction at Candover would

contribute to this deterioration. Lower flows in the river, caused by an artificially lowered

water table due to the Candover abstraction and its associated cone of depression, would

result in less dilution of pollution and increased sedimentation. The reduction in flow

velocity would also make it less likely that the gravel bed is kept ‘clean’ (free of sediment

and well oxygenated), negatively affecting macro-invertebrates and brown trout spawning

success.

67. The Environment Agency’s proposals to decrease authorised abstraction for the purpose of

augmenting flow in the Candover Stream for ‘environmental support’ (from 3,750,000 cubic

metres per year to 750,000 cubic metres per year and 27,000 cubic metres per day to 5,000

cubic metres per day) are a welcome step forward. However, given that the Candover

scheme has not been used for some time, and that 5,000 cubic metres per day would

represent an increase over recent historic actual abstraction levels, the Environment

Agency’s proposals are not sufficient to ensure there will be no breach of the two Directives.

Indeed, the Environment Agency’s own Appropriate Assessment is such that the Agency

itself has concluded it is not valid beyond 2021.

68. Therefore, the Environment Agency’s proposals at Candover are only a step forward to

ensuring protection of this precious headwater and the integrity of the Itchen SAC. The

Environment Agency does not envisage no abstraction at Candover. It is therefore apparent

that the Environment Agency’s proposals in 2017, as on the Itchen, are already a

compromise position, with respect to the strict requirements of the Habitats Directive.

69. WWF and S&TC UK note the assertion made by Southern Water that the Environment

Agency’s changes in relation to the Candover licence are “excessively precautionary”

(Southern Water’s representation on Candover, page 4, section 3).

70. However, the inherently precautionary nature of Article 6(3) of the Habitats Directive

dictates how the burden of proof is to be satisfied in deciding on the proposals for Candover.

71. Article 6(3) requires the Environment Agency to take action when there is uncertainty about

the scale or nature of impacts upon an SAC.

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72. The precautionary nature of the test within Article 6(3) has been reinforced by a number of

judgments of the European Court of Justice and incorporated into many domestic decisions

(see, for example, the ECJ in Wadenzee5).

73. This applies equally to the test as it is applied here under the Review of Consents process,

which led to the Itchen Site Action Plan.

74. Note, for example, the recent decision in the recent judgment in the Court of Appeal in

Northern Ireland on an application by Friends of the Earth Limited [2017] NICA 416, at

paragraph 35, in which the Court provide useful guidance on the precautionary approach to

be adopted under the Directive, in that case in relation to sand extraction from Lough

Neagh, also part of the Natura 2000 network.

“It is acknowledged by the Department that these operations are likely to have a significant

effect on the environment. It is not known what the effect will be. The precautionary

principle applies. It operates on the basis that there should be no planning permission until it

is established that there is no unacceptable impact on the environment. The Minister’s

decision proceeds on the basis that there is an absence of evidence of an unacceptable

impact on the environment. The proper approach is to proceed on the basis that there is an

absence of evidence that the operations are not having an unacceptable impact on the

environment.”

And at paragraph 37

“What has been disregarded in the letter of decision, where it deals with the Stop Notice, is

that these operations are considered likely to have significant impact, that the nature and

extent of that impact has not been established, that prior to the grant of permission is the

requirement to establish that there will be no significant impact and that it is imperative that

the precautionary principle be applied. What must be put in the balance is the absence of

evidence that there is no harm. To approach the matter with a requirement for evidence of

harm is the negation of the precautionary principle.”

75. The Environment Agency’s proposals on Candover cannot therefore be considered

“excessively precautionary”. Both WWF and S&TC UK have made clear representations that

5 Case C-127/02 7 September 2004

Reference for a preliminary ruling under Article 234 EC from the Raad van State (Netherlands), made by decision of 27 March 2002, registered at the Court on 8 April 2002, in the proceedings brought by Landelijke Vereniging tot Behoud van de Waddenzee, Nederlandse Vereniging tot Bescherming van Vogels against Staatssecretaris van Landbouw, Natuurbeheer en Visserij, http://curia.europa.eu/juris/showPdf.jsf?text=&docid=49452&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=617992 6 https://www.courtsni.gov.uk/en-

GB/Judicial%20Decisions/PublishedByYear/Documents/2017/[2017]%20NICA%2041/WEA10355Final%20-%20Approved.pdf

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the Candover augmentation scheme should be closed altogether, as it is fundamentally

unsustainable.

76. However, as a first step in the process to decommission the Candover abstraction, both

organisations support the Environment Agency proposals, albeit that the Candover

abstraction should only ever be used under the terms of a Drought Order made by the

Secretary of State and only in extremis.

Testwood

77. Although, of the two rivers, only the River Itchen is designated as an SAC, both the Itchen

and the Test are internationally significant chalkstreams, with genetically important salmon

populations. Both are also already suffering from a wide range of anthropogenic pressures,

including over-abstraction.

78. For example, in 2015 and since, S&TC UK’s Riverfly Census has demonstrated ecological

biometrics on both rivers that are well below what would be expected on a healthy

chalkstream.

79. Therefore WWF and S&TC UK have been clear for many years that they oppose the using of

abstraction on the Test to ‘bail out’ the Itchen and ensure that it is not over-abstracted.

80. However, if actual abstraction at Testwood is to increase to ‘replace’ available abstraction

volumes lost from the Itchen licences, it is imperative that a Hands-Off Flow is set at

Testwood that avoids deterioration on the Test, as is required by the Water Framework

Directive. As above, the avoidance of deterioration after 22nd December 2000 is an absolute

obligation under the Water Framework Directive and is not subject to any potential

exceptions or derogations.

81. On the Test, the proposed licences changes are only a first step towards the necessary

changes to protect the nature conservation interest of the river, as there are a number of

drivers for future reductions in abstraction in the Test.

82. The context of likely and necessary future reductions in abstraction makes securing the

initial reductions in abstractions that the Environment Agency’s proposals represent, all the

more important to incentivise Southern Water to make the long term investments now to

secure alternative supplies.

83. Specifically, the Hands Off Flow proposed by the Environment Agency does not go far

enough to protect the salmon in the River Test.

84. In March 2015 a discussion paper was produced by John Lawson, commissioned by WWF on

managing lower Test abstraction impacts in relation to River Test salmon migration (see

Annex doc 3). This report formed part of WWF’s representation on the proposed changes at

Testwood in November 2016. This work challenged the evidence presented by Southern

Water concerning the effect on salmon and migration of abstraction from Testwood.

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85. Representations subsequently made by WWF and S&TC UK-UK, in response to the proposed

changes at Testwood, have raised serious concerns that the 390 Ml/d (the flow required to

ensure that migration of salmon is not impeded) does not come into effect until 2027.

86. It is understood that the imposition of tighter Hands Off Flows to protect salmon will reduce

the utility of Testwood to Southern Water in drought conditions and might lead to a supply

difficulties but, in that case, the statutory provisions available to secure supply by operating

under Drought Orders, are sufficient.

87. As above, the requirement under the Water Framework Directive was to meet objectives by

2015 unless it is disproportionately expensive or technically infeasible to do so. The

Environment Agency should demonstrate why the failure to meet the deadline of 22nd

December 2015 with respect to the flows it recognises as necessary for the protection of

salmon, could not be remedied at once, as against the extensions of time allowed for in the

Directive. Neither it nor Southern Water has claimed that the time extensions permitted by

the Directive are applicable here. They are plainly not.

88. In addition to concerns over sufficient flows to protect salmon, Natural England has pointed

out that the Environment Agency’s proposals may not meet the revised river Common

Standards Monitoring Guidance (rCSMG) flow targets for reaches in the lower River Test

SSSI, which were published in 2014. Although these flow targets post-date the completion

of the Review of Consents, the Environment Agency and Natural England have already

agreed a staged approach to the implementation of rCSMG, with an interim goal to be

achieved by December 2021 and longer-term targets.

89. In summary, WWF and S&TC UK recognise the Environment Agency’s proposals on the Test

are an important first step that will reduce ‘headroom’ in the current Testwood licence and

should ensure movement towards meeting the non-deterioration requirements of the

Water Framework Directive, but they are only a first step.

90. As for both the Itchen and Candover proposals, it is therefore apparent that the

Environment Agency’s proposals in 2017, not to bring in the Hands-Off Flow required to

protect salmon until 2027, are already a compromise position, reached in part as a response

from the Environment Agency to concerns raised by Southern Water over the available of

sufficient water resources in times of drought.

General observations

91. Southern Water argues that the Environment Agency’s proposal have the potential to put

the company into deficit, and increase the likelihood of a need for Drought Orders.

92. A large number of representations have referred to the range of demand management,

leakage reduction measures, or alternative supplies of water that could be implemented to

address any perceived deficit in available water supplies that Southern Water might

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experience as a result of the changes sought by the Environment Agency across all five

licences.

93. WWF and S&TC UK have offered and will continue to offer to work with Southern Water and

the Environment Agency to address any arising deficit, but consider that there are and have

been, for some time, a number of measures available to Southern Water to reduce the

likelihood of such deficit arsing including, but not limited to:

- additional action to enhance demand side responses including achieving reductions in per

capita consumption in critical periods involving early communication with customers,

incentives and other behaviour change tools; and

- the early use of Temporary Use Bans and non-essential use bans to conserve supplies in

‘pre-drought’.

94. In October 2015, Southern Water agreed to develop a Memorandum of Understanding with

WWF to develop tariff and incentive trials. In this way, the deployable output ‘lost’ in

relation to Candover abstraction, at the very least, could be achieved through demand

management, but WWF has been disappointed that Southern Water has not yet progressed

this with the urgency needed.

95. WWF has also advocated smart licence controls, such that abstraction is gradually reduced

as flows drop towards critical levels, as set out in the ‘Smart Licencing’ paper commissioned

by WWF and previously shared with the Environment Agency (see Annex doc 4) .

96. In simple terms, Southern Water should have done more by now to identify least-damaging

alternative solutions to secure long-term public water supply, and ensure that these were

put forward in previous Water Resources Management Plan cycles.

97. In its Provisional Case of November 2017, Southern Water suggested at para 3, that its

forthcoming Water Resources Management Plan “will set out the alternative water resource

schemes to be developed to meet the Environment Agency’s environmental requirements for

the Test, Itchen and Candover for the longer term”.

98. However, the obligation of the Water Framework Directive was that those alternatives

should have been implemented and achieved the Habitats Directive obligations by 22nd

December 2015 for the Itchen and Candover (as a protected area) and, unless the extensions

of time allowed for in Article 4(4) for disproportionate expense or technical infeasibility

applied (which they do no), also by 2015 for the Test.

99. In any event, both strong demand management and alternative supply options must now be

included, to the fullest possible extent, in the draft Water Resources Management Plan

expected in December 2017.

100. This must include a wide and rigorous assessment of alternatives, taking into

account environmental objectives in neighbouring catchments, in line with Ofwat’s

15

expectation that companies develop innovative and transformative plans, and consider the

resilience of the natural environment alongside the resilience of their own operations.

Drought orders

101. The Habitats Directive is clear that any delay to making the abstraction licence

changes that are required to protect the Itchen SAC would only be lawful if an argument can

be raised successfully by Southern Water that there is a case here of Imperative Reasons of

Overriding Public Interest (IROPI) per Article 6(4) of the Habitats Directive, which would

mean that the changes need not be made.

102. However, there always remains the option of applications by Southern Water for

Drought Orders, which means that an alternative solution to secure the water supplies, that

Southern Water says it would need to address the impact of any shortfall, already exists.

103. For example, Southern Water’s objection on the section 52 proposal by the

Environment Agency to make changes to the three abstraction licences on the Itchen (SWS,

15th December 2016) raises four main objections, (i) to (iv). Of those, objections (ii) to (iv)

focus on what might happen in the event of a drought.

104. There is a long established and functioning statutory system providing for drought

planning and the issuing of Drought Orders.

105. Chapter I of Part III of the Water Industry Act 1991, dealing with general duties of

water undertakers, establishes the procedure for the drawing up of Drought Plans, to be put

into effect if a drought occurs. These plans are drawn up by water undertakers in

consultation with, among others, the Secretary of State.

106. In the event of a drought, the Secretary of State has powers under section 73 of the

Water Resources Act 1991, to make ordinary and/or emergency drought orders to safeguard

public water supplies.

107. Southern Water argues that there is some uncertainty concerning how Drought

Orders would operate. There is an “assumption by the EA (and Defra) that a Drought Order

will be granted during drought to remove the constraints on abstraction caused by the

licence changes” and a “lack of clarity on how such a Drought Order will be granted, relative

to establishing that a case of imperative reason of over-riding public interest ("IROPI")

exists...”

108. However, all parties can only operate on the basis that the Secretary of State would,

in such drought circumstances, be alive to the need to maintain essential public water

supply, and would act reasonably and lawfully in making, or not making any drought orders.

That must be the assumption.

109. The Environment Agency’s proposals at this Inquiry cannot therefore sensibly be

judged against some potentially unreasonable or irrational response from the Secretary of

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State to any future application from Southern Water for Drought Orders. Nor is this a case

where IROPI can be raised, as this would be inconsistent with the existing statutory

mechanisms for drought planning and drought orders.

Conclusions

110. WWF and S&TC UK support the Environment Agency’s proposals across all five

licences as, taken together, they represent a coherent whole to begin to address the low

flow issues on both rivers.

111. There has already been considerable delay in bringing forward the requisite changes

on both rivers, driven by the Habitats Directive (on the Itchen and Candover) and by the

Water Framework Directive on both rivers.

112. The continuing failure to meet the requirements of the Habitats Directive on the

Itchen and Candover represents a breach of the Habitats Directive and the timetable for

water-dependent protected areas, as set down in the Water Framework Directive.

113. WWF and S&TC UK do not consider that the Environment Agency’s proposed

changes meet completely the UK’s obligations under relevant European law.

114. Nor can the changes proposed by the Environment Agency to all five licences be

considered completely in isolation from the likely future tightening of hands off flows in

both rivers over the next ten years. It is highly likely that flows will need further protection

for a number of reasons on the Test, in relation to salmon migration, the requirements of

the Water Framework Directive to avoid deterioration in the status of water bodies, and in

relation to the likely CSMG minimum flows to be brought by Natural England to protect both

aquatic and wetland Sites of Special Scientific Interest on both river systems.

115. While it is clear that the failure of Southern Water to invest sufficiently to date, to

bring online other water resources and make Southern Water’s supply system more

resilient, is regrettable, it is important, at this stage, particularly in view of the new resilience

duty upon the Secretary of State, provided for in the Water Act 2013, that the changes

proposed by the Environment Agency are brought in at the earliest possible moment. This is

essential to incentivise the long term investment required from Southern Water.

116. Southern Water argues that its duty under section 37(1)(a) of the Water Industry Act

1991 - General duty to maintain water supply system etc - to develop and maintain an

efficient and economical system of water supply within its area and to ensure that all such

arrangements have been made for providing supplies of water to premises in that area and

for making such supplies available to persons who demand them – is key here, but that duty

is, as a matter of settled law, subservient to the obligations placed upon the UK by the

Water Framework Directive and Habitats Directives.

117. In the last paragraph of its Provisional Case, Southern Water, at page 9, refers to the

“myriad of EU and UK water industry and environmental legislation whose requirements

17

have the potential to impose conflicting demands on the company”. This fails to recognise

that the Water Framework Directive and Habitats Directive place clear and strict demands

on the UK as a whole. Implementing measures to meet those obligations is the responsibility

of all public authorities. The strict protection provided by the Habitats Directive and the

obligations under the Water Framework Directive (subject only to the extensions permitted

by that Directive) mean that there is no option but to require the changes at all five licences

in order to avoid the potential for infraction proceedings against the UK.

118. While the company, Southern Water, does not directly ‘feel the heat’ of the

obligations of the two Directives, it needs to recognise that the Environment Agency and

Secretary of State (and in the context of this appeal, the Inspector) must act to ensure

compliance with the obligations of those Directives and regulate the water industry,

including Southern Water, accordingly.

119. In summary therefore, WWF and S&TC UK consider that the need to comply with

the legal obligations set down in the Habitats Directive and Water Framework Directive

cannot now be set aside for these five licences. WWF and S&TC UK therefore support the

proposals brought forward by the Environment Agency, but with modifications.

120. WWF and S&TC UK urges the Inquiry to confirm those proposals, but with

modifications to implement immediately the proposed 2027 Hands-off Flow at Testwood to

protect salmon and to reduce the Candover abstraction to zero, other than under the terms

of any future drought order.

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Annex

Doc 1) WWF (2014) The State of England’s Chalk Streams

Doc 2) WWF (2009) An assessment of invertebrate-based target flows for the River Itchen,

Hampshire Prepared for WWF by Professor Robert Wilby, University of Loughborough, November

2009

Doc 3) WWF (2015) Discussion Paper on Managing Lower Test Abstraction Impacts Report produced

for WWF by John Lawson FREng FICE FCIWEM March 2015

Doc 4) WWF (2011) Discussion Paper for WWF’s Itchen Initiative - Smarter licensing to reduce

damaging abstraction from environmentally fragile rivers with minimum possible impact on water

resources yield. River Itchen Case Study Written by Dr Colin Fenn (Independent Consultant),

Professor Rob Wilby (University of Loughborough) February 2011

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18th December 2017