Farm flood funds pledged amidst water pollution regulation ‘disconnect’

Eluned Watson, an environmental and regulatory expert at Pinsent Masons, was commenting after the UK government committed to provide £5 billion over two years to support the transition towards a more productive and environmentally sustainable agriculture sector in England. Watson said the funds will be beneficial for farmers whose land has been affected by flooding and wet weather.

The funding pledge was announced by chancellor Rachel Reeves during her recent autumn budget and will include a £60 million boost this year for the Farming Recovery Fund.

This fund is available for farmers whose land has been severely impacted by flooding and wet weather, who are likely to need to do work to remediate their land to farm again in the future.

The announcement comes amid growing pressure for farmers and land managers not to pollute or discharge to water, whilst navigating a rise in extreme rainfall and flash flooding, said Watson.

The pollution of controlled waters, including surface and groundwater, is a heavily regulated area. Water pollution regimes include the environmental permitting regime, and the Water Resources Act works notice regime and are based on the “polluter pays principle”. These regimes create strict liability offences under which the original causer or knowing permitter of the pollution can be subject to criminal prosecution and expensive clean-up costs, including the potential for director and officer liability.

However, there is a “disconnect between the key water pollution regimes and agricultural diffuse pollution”, said Watson.

Watson said: “The water pollution regimes do provide a mechanism to control and enforce against diffuse water, however, these regimes were not designed to deal with agricultural diffuse pollution. For example, the environmental permitting regime makes it an offence to discharge poisonous, noxious or polluting matter to controlled waters without an environmental permit. However, environmental permits are required for intentional point source discharges and are not always appropriate for unintentional discharges to water that occurs from leaching or soil erosion. The Environment Agency can issue anti-pollution works notices to prevent, remedy or prohibit activities that contribute to water pollution. Again, works notices were not designed to deal with diffuse pollution, where it can be difficult to establish sufficient evidence of a clear cause and effect.”

Over the last four years, the Environment Agency has carried out approximately 8,000 farm inspections to check for compliance with the water pollution regime. The Environment Agency has stated that its “farm inspectors take a proportionate approach that uses advice and guidance first… but if advice is not heeded, we will not hesitate to pursue whatever sanctions are necessary – including penalties, formal cautions and prosecutions”.

Regulations directly applicable to the control of diffuse water pollution include the Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018 - known as the farming rules for water.

The farming rules for water provide that agricultural land managers must plan the application of organic manure and manufactured fertiliser, so it does not give rise to a significant risk of agricultural diffuse pollution. Forward planning must take into account weather conditions and forecasts, soil types, proximity to watercourses and boreholes and the slope of the land, amongst other things. The rules include specific rules on the storage of organic manure, soil testing and management of livestock.

Failure to comply with the rules is an offence, however it is a defence to show that all reasonable precautions and due diligence has been undertaken to avoid committing the offence. This due diligence may include carrying out soil checks or test pits.

A recent case underscored the importance of such due diligence. A court deemed that relying on weather forecasts of heavy rain was not a defence when a farmer failed to plan an application of slurry contrary to the farming rules for water.