IN THE MATTER OF: AND IN THE MATTER OF:

Transcription

1 IN THE MATTER OF: THE WATER RESOURCES ACT 1991 (AS AMENDED) THE WATER RESOURCES (ABSTRACTION AND IMPOUNDING) REGULATIONS 2006 THE WILDLIFE AND COUNTRYSIDE ACT 1981 (AS AMENDED) THE CONSERVATION OF HABITATS AND SPECIES REGULATIONS 2017 AND IN THE MATTER OF: 1. RIVER ITCHEN AT TWYFORD AND OTTERBOURNE: ABSTRACTION LICENCES 11/42/22.6/92, 11/42/22.6/93, 11/42/22.7/94 PINS REFERENCE RSA/WR/ RIVER TEST AT TESTWOOD: ABSTRACTION LICENCE 11/42/18.16/546 PINS REFERENCE RSA/WR/ CANDOVER AUGMENTATION SCHEME: ABSTRACTION LICENCE SO/042/0031/026 PINS REFERENCE RSA/WR/00016 NATURAL ENGLAND S PRE-INQUIRY STATEMENT 1

2 INTRODUCTION... 5 MAP 1 - OVERVIEW... 6 DESIGNATED AREAS FORMAL BACKGROUND... 7 THE RIVER ITCHEN SSSI AND SAC... 7 THE RIVER TEST SSSI... 7 DESIGNATED AREAS DESCRIPTION... 8 THE RIVER ITCHEN SSSI... 8 THE RIVER ITCHEN SAC THE RIVER TEST SSSI BIODIVERSITY ACTION PLAN PRIORITY HABITATS CURRENT INTIATIVES REVIEW OF THE ITCHEN SSSI AND SAC FAVOURABLE CONDITION TABLE RIVER RESTORATION STRATEGY RIVER ITCHEN SITE IMPROVEMENT PLAN RIVER ITCHEN WATER LEVEL MANAGEMENT PLAN WATER INDUSTRY NATIONAL ENVIRONMENT PROGRAMME LEGAL PROTECTION SACS - THE HABITATS DIRECTIVE AND HABITATS REGULATIONS WHAT IS MEANT BY THE INTEGRITY OF THE SITE? SSSIS - THE WILDLIFE AND COUNTRYSIDE ACT PRIORITY HABITATS AND SPECIES THE NATURAL ENVIRONMENT AND RURAL COMMUNITIES ACT WATER FRAMEWORK DIRECTIVE TIERS OF LEGAL PROTECTION POLICY

3 NATURAL ENGLAND S APPROACH TO DECISION-MAKING FOR FRESHWATER PROTECTED SITES CONCEPTUAL BASIS TRANSLATION INTO PRACTICE NOTIFIED FEATURES OF RIVER SACS AND SSSIS COMMON STANDARDS MONITORING THE HISTORY OF CSM TARGETS FOR FLOW REGIME WHAT THE CSM EVIDENCE REVIEW REVEALED HOW THE CURRENT CSM GUIDANCE ON FLOW TARGETS WAS DERIVED CURRENT CSM FLOW TARGETS TABLE 1. CSM HEADLINE RIVER FLOW TARGETS AND METHOD OF ASSESSMENT TABLE 2. CSM MINIMUM ACCEPTABLE FLOW TARGETS IN RELATION TO RIVER SIZE AND DISCHARGE LOCAL APPLICATION OF CSM FLOW TARGETS REPORTING OF SSSI/SAC CONDITION AND RELATED DECISION-MAKING PARALLEL APPROACH TO PRIORITY RIVER HABITAT THE ENVIRONMENT AGENCY S REVIEW OF CONSENTS IN THE RIVER ITCHEN SUSTAINABILITY STUDY REVIEW OF CONSENTS STAGE 2 - TEST FOR LIKELY SIGNIFICANT EFFECT REVIEW OF CONSENTS STAGE 3 - APPROPRIATE ASSESSMENT REVIEW OF CONSENTS STAGE 4 - ACTIONS NATURAL ENGLAND S UNDERSTANDING OF THE EA S DERIVATION OF HANDS-OFF-FLOW LEVELS NATURAL ENGLAND S VIEWS ON THE RISS AND ROC IF A REVIEW OF CONSENTS WERE BEING CARRIED OUT NOW

4 NATURAL ENGLAND S ASSESSMENT OF THE CONDITION OF THE SITES RIVER ITCHEN RIVER CHANNEL UNITS RIVER ITCHEN SSSI TERRESTRIAL WETLAND UNITS: RIVER TEST MAP 2 SITE CONDITION MAP OF THE UPPER ITCHEN MAP 3 - SITE CONDITION MAP OF THE MIDDLE ITCHEN THE THREE RIVER ITCHEN ABSTRACTION LICENCES CANDOVER TESTWOOD IROPI AND COMPENSATORY MEASURES MAP 4 RIVER MEON APPENDICES

5 INTRODUCTION 1. Natural England is a statutory body established by the Natural Environment and Rural Communities Act Its statutory general purpose is to ensure that the natural environment is conserved, enhanced and managed for the benefit of present and future generations, thereby contributing to sustainable development. Natural England is a statutory advisor to public authorities in England on matters relating to its general purpose. Natural England is a statutory consultee in respect of (inter alia) proposals likely to affect Sites of Special Scientific Interest (SSSIs) and plans and projects likely to have a significant effect on sites classified under the EC Habitats Directive (SACs) or designated under the EC Birds Directive (SPAs). 2. These three appeals are rightly conjoined, as they raise common concerns and have mutual links. Natural England proposes to address all three appeals by way of this single Statement, in which it sets out its advice and outlines the nature of evidence that it proposes to give to the public inquiry. 3. Natural England s evidence will address and explain the environmental features that in these cases are protected by SSSI and SPA status and will consider harm caused to those features by excessive water abstraction. Legal and policy protections for biodiversity are outlined. 4. In order to avoid duplication, Natural England s analysis of the law will be largely confined to legal issues relating to the conservation of biodiversity, rather than water abstraction and use per se. Natural England does not address issues of water demand or its control or economic concerns. 5. In the interests of conciseness, Natural England does not propose to recite full details of the history and background to the current position or to repeat matters that are likely to be common ground between the two main parties. 6. In these appeals, Natural England wishes to stress the highly protected status of the Rivers Itchen and Test and to seek outcomes that not only conserve, but enhance, protected features. In so doing, Natural England advises a precautionary approach. 5

6 er Map 1 - overview Candover Scheme Boreholes Environment Agency SO/042/0031/026 st Te!( v Ri (! (! River Itchen Otterbourne Surface water Southern Water 11/42/22.6/93 Twyford Sources Southern Water 11/42/22.6/92!( (!!(!(!(!(!(!(!(!(!(!(!(!( Otterbourne Groundwater Sources Southern Water 11/42/22.7/94 Testwood Surface water Southern Water 11/42/18.16/546!( Legend Rivers main!( Surface Water Licence Ramsar SPA!( Groundwater Licence SAC SSSI Crown Copyright. All rights reserved. Environment Agency, , 2017 Scale: ± 1:187,228 Km 9 6 Produced by EA 22/11/2017

7 DESIGNATED AREAS formal background The River Itchen SSSI and SAC 7. All of the River Itchen, plus the lower parts of its headwaters and various areas of riparian land, has been designated as an SSSI. Within the SSSI, the river itself is also designated as a SAC. The SAC designation does not include riparian land. 8. Appendix 1 contains: a. The River Itchen SSSI Citation b. The River Itchen SSSI List of operations likely to damage the special interest of the SSS c. The River Itchen SSSI Views about Management d. The River Itchen SSSI Condition Assessment 9. Appendix 2 contains: a. River Itchen SAC Citation b. River Itchen SAC Natura 2000 Standard Data Form c. River Itchen SAC JNCC site details d. River Itchen SAC European Site Conservation Objectives The River Test SSSI 10. All of the River Test, plus various areas of riparian land have been designated as an SSSI. The upper estuary of the river has been separately designated as the Lower Test Valley SSSI and the lower part of this SSSI is part of the Solent Maritime SAC. 11. Appendix 3 contains: a. The River Test SSSI Citation b. The River Test SSSI List of operations likely to damage the special interest of the SSSI c. The River Test SSSI Views about Management d. The River Test SSSI Condition Assessment 7

8 DESIGNATED AREAS description The River Itchen SSSI 12. The River Itchen was originally notified (as the Itchen Valley) in 1984 as a Site of Special Scientific Interest (SSSI) under Section 28 of the Wildlife and Countryside Act It has since undergone a revision in 1996, where it was renamed the River Itchen SSSI, and a further notification in It was confirmed in It is approx. 42 km in length and occupies an area of ha. Currently, it is divided by Natural England into 141 units, 6 of which comprise the river channel, with remaining units consisting of a range of terrestrial riparian habitats, including extensive wetlands. 13. It is notified for habitats and species that typify a classic chalk river, of which the Itchen is considered one of the most characteristic due to greater uniformity throughout its length than other rivers of this type. Habitats notified include classic chalk stream and river, fen meadow, flood pasture and swamp, with particular emphasis placed on the in-channel vegetation community, dominated by water crowfoot Ranunculus spp., and riparian vegetation communities and features associated with former water meadows and side channels, runnels and ditches. 14. The site is notified for supporting significant populations of the nationally-rare southern damselfly Coenagrion mercuriale and nationally-rare and scarce freshwater and riparian invertebrates, including white-clawed crayfish Austropotamobius pallipes. It is also notified for otter Lutra lutra, water vole Arvicola terrestris, freshwater fishes including bullhead Cottius gobio, brook lamprey Lampetra planeri and Atlantic salmon Salmo salar, and an assemblage of breeding birds, including tufted duck Aythya fuligula, pochard A. farina and shoveler Anas clypeata, the waders lapwing Vanellus vanellus, redshank Tringa tetanus and snipe Gallinago gallinago, and wetland passerines including sedge warbler Acrocephalus schoenobaenus, reed warbler A. scirpaceus and Cetti's warbler Cettia cettia. 15. The river s aquatic flora is noted as being exceptionally species-rich, with an abundance of many typical chalk stream plants throughout the system, which exhibits less downstream variation than most other rivers. Riparian wetlands, including former water meadow and pastures, throughout the Itchen Valley are also considered species-rich and of high nature conservation importance. Floristic diversity in riparian meadows is high, with species-rich communities typical of wet, calcareous pastures well represented. The river and its carriers maintain high groundwater levels, which are important for the botanical diversity and interest. The river channel and riparian vegetation provide habitat for diverse invertebrate assemblages (over 210 taxa from the river channel itself), including nationally-rare and scarce species, and groups of taxa particularly characteristic of chalk streams, including Oligochaete worms, Crustacea (including the freshwater shrimp Gammarus pulex), Diptera (flies), Neuroptera (alderflies, lacewings, etc), and Ephemeroptera (mayflies). 8

9 16. Natural England has generalised views about the management of SSSIs and the management principles relating to rivers and streams apply to the River Itchen SSSI. These are summarised below, with focus on management components that any changes in water quantity may influence. It should be noted that this list is not exhaustive, is generic in nature, and that more specific issues exist in the Itchen which differentiate it from other river typologies. Rivers and streams naturally provide a diversity of habitats for plants and animals, including invertebrates, fish, mammals and birds. The river s natural structure and form should be maintained. This will support a natural flow regime that will help conserve the geomorphological features of interest. Management should maintain the natural flow regime of the river or stream, including natural erosion and sedimentation processes, in order to meet the requirements of the full range of flora and fauna it supports. Abstraction levels should be managed to protect the characteristic flow regime, including seasonal base flows and flushing flows. Compensation flows are generally not an acceptable alternative to reducing abstraction, and river transfers may also have an undesirable effect on river ecology. The characteristic aquatic plant communities associated with in-channel vegetation should be allowed to flourish, including fringing emergent vegetation and beds of submerged plants. 17. In addition to river habitat management advice, Natural England has views on associated floodplain habitats, relevant to the Itchen floodplain fen: Floodplain fens develop on flat areas that have historically been flooded by waters from rivers and streams that meander across the plains. Floodplain vegetation may also be dependent on water seepage from subterranean aquifers or from seepage down or at the base of the constraining slopes. Consequently, there may be parts of any particular floodplain that should be thought of as spring or flush, and it may also contain basin fen, swamp, wet woodland and grazing marsh. Traditional methods of management have produced a species rich sward that supports a rich variety of flowering plants, invertebrates and birds. 18. Natural England has a rolling programme of assessing the condition of each unit of each SSSI throughout the country. The most recent unit condition assessments for the River Itchen SSSI channel units were performed in 2015 all channel unit conditions were assessed as Unfavourable No Change. Performing a SSSI condition assessment also automatically assesses condition of SAC features. 19. Condition assessments of the relevant units of the River Itchen SSSI are set out elsewhere in this Statement, under the heading Natural England s Assessment of the condition of the sites and the assessments themselves are at Appendix 1 d. 9

10 The River Itchen SAC 20. The SAC was designated on 1 April 2005 and its citation 1 comprises the following: Site description: The Itchen typifies the classic chalk river and shows a greater uniformity in physical characteristics along its entire length than other rivers of this type. Since the river is mainly spring-fed, there is only a narrow range of seasonal variation in physical and chemical characteristics. The water is of high quality, being naturally base-rich and of great clarity; and its temperature is relatively constant, with dissolved oxygen levels at or near saturation. The river s vegetation is dominated by higher plants, and the aquatic flora is exceptionally species rich with many of the typical chalk stream plants present in abundance. The majority of species are present throughout the system and downstream changes are less than in most other rivers. The river is rich in invertebrates and supports diverse populations of aquatic molluscs. The Itchen supports one of the few populations of the native freshwater crayfish remaining in the rivers of southern England and a population of otters. The river is dominated throughout by aquatic Ranunculus spp. The headwaters contain pond water-crowfoot Ranunculus peltatus, while two Ranunculus species occur further downstream: stream water-crowfoot R. penicillatus ssp. pseudofluitans, a species especially characteristic of calcium-rich rivers, and river water-crowfoot R. fluitans. The fish fauna of the Itchen is typical of lowland chalk rivers. Strong populations of bullhead Cottus gobbio and brook lamprey Lampetra planeri are notable elements of the natural fish fauna. The river provides good water quality, extensive beds of submerged plants that act as a refuge for the species, and coarse sediments that are vital for spawning and juvenile development. The river s runs of Atlantic salmon Salmo salar fluctuate markedly. The upper and mid river provides much suitable habitat for otters. A localised population of Atlantic stream crayfish Austropotamobius pallipes remains in a headwater of the river. The Itchen valley contains areas of fen, swamp and meadow supporting vegetation with diverse plant communities, some typically species-rich. Meadow ditches support strong populations of southern damselfly Coenagrion mercuriale. The numbers recorded place the site amongst the most important in Britain for 1 English Nature, May

11 this species Qualifying habitats: The site is designated under article 4(4) of the Directive (92/43/EEC) as it hosts the following habitats listed in Annex I: Water courses of plain to montane levels with the Ranunculion fluitantis and Callitricho-Batrachion vegetation. (Rivers with floating vegetation often dominated by water-crowfoot) 2 Qualifying species: The site is designated under article 4(4) of the Directive (92/43/EEC) as it hosts the following species listed in Annex II: Atlantic salmon Salmo salar Brook lamprey Lampetra planeri Bullhead Cottus gobio Otter Lutra lutra Southern damselfly Coenagrion mercuriale White-clawed (or Atlantic stream) crayfish Austropotamobius pallipes 21. Natural England has established Conservation Objectives for the SAC: With regard to the SAC and the natural habitats and/or species for which the site has been designated (the Qualifying Features listed below), and subject to natural change; Ensure that the integrity of the site is maintained or restored as appropriate, and ensure that the site contributes to achieving the Favourable Conservation Status of its Qualifying Features, by maintaining or restoring; Ø The extent and distribution of qualifying natural habitats and habitats of qualifying species Ø The structure and function (including typical species) of qualifying natural habitats Ø The structure and function of the habitats of qualifying species Ø The supporting processes on which qualifying natural habitats and the habitats of qualifying species rely 2 There is considerable variation within the Annex I habitat H3260, so for the purposes of selecting SACs in the UK it was divided up into three sub-types based on plant species composition. Of the three H3260 sub-types identified in the UK, sub-type 1 (chalk rivers) is rare in Europe, and the Test and Itchen are considered to be the most classical examples of the type in the UK. 11

12 Ø The populations of qualifying species, and, Ø The distribution of qualifying species within the site. This document should be read in conjunction with the accompanying Supplementary Advice document, which provides more detailed advice and information to enable the application and achievement of the Objectives set out above It is against these objectives that the effects of water abstraction must be considered. The Supplementary Advice document referred to above has not yet been produced. The River Test SSSI 23. The River Test was notified in 1996 and confirmed in 1997 as a Site of Special Scientific Interest under Section 28 of the Wildlife and Countryside Act It is approx. 50 km in length and occupies an area of ha. Currently, Natural England divides it into 91 units, 8 of which comprise the river channel, with remaining units consisting of a range of terrestrial riparian habitats, including extensive wetlands. The River Test is noted as a classic chalk stream that is one of the most species-rich lowland rivers in England. 24. Most of the river drains from chalk bedrock, but has greater geological variation in its lower reaches than present in the River Itchen; combined with its longer length and larger drainage basin, this gives the Test a greater downstream succession of species, although the entire river exhibits flora characteristic of chalk streams. 25. The flora of the Test is noted as being more species rich than most other lowland rivers, particularly in lower reaches over more varied substrate. Ranunculus spp. is abundant, if not dominant, throughout most of the river, with variation in the floral assemblage associated with habitats underpinned by Ranunculus. Habitats also include riparian wetlands, with former water meadows, fen pasture and rush pasture communities of notable botanical interest. Species-rich floral communities typical of wet, calcareous, pastures are well represented; proximity to the river, and therefore river water levels, are of particular importance to maintaining high ground-water levels which underpin the botanical diversity of interest. 26. The Test supports a high diversity of invertebrate species, with over 232 invertebrate taxa from the river channel itself contributing to this diverse assemblage. Characteristic groups comprise this assemblage, including Oligochaete worms, Crustacea (including the freshwater shrimp Gammarus pulex), Diptera (flies), Neuroptera (alderflies, lacewings, etc) and Ephemeroptera (mayflies). It is noted as being exceptionally rich in aquatic molluscs and has numerous nationally rare species of invertebrates both within the channel and riparian habitats. 12

13 27. The Test is important for supporting wetland bird assemblages as well as characteristic fish communities, including native populations of brown trout Salmo trutta, bullhead Cottius gobio, brook lamprey Lampetra planeri, and fluctuating populations of Atlantic salmon Salmo salar. The river has also reported Otters Lutra lutra at certain locations and good populations of water voles Arvicola terrestris. 28. Natural England has generalised views about the management of SSSIs and the management principles relating to rivers and streams apply to the River Test SSSI. These management principles correlate with those associated with the River Itchen SSSI, outlined above. 29. The most recent river channel condition assessments for the River Test SSSI were performed in 2013 all channel unit conditions were assessed as Unfavourable No Change. Condition assessment of the relevant unit of the River Test SSSI are set out later in this Statement, under the heading Natural England s Assessment of the condition of the sites and the assessment itself is at Appendix 3 d. 13

14 BIODIVERSITY ACTION PLAN PRIORITY HABITATS 30. UK BAP priority habitats cover a wide range of semi-natural habitat types, and were those that were identified as being the most threatened and requiring conservation action under the UK Biodiversity Action Plan (UK BAP). The original list of UK BAP priority habitats was created between 1995 and In 2007, however, a revised list was produced, following a 2-year review of UK BAP processes and priorities, which included a review of the priority species and habitats lists. Following the review, the list of UK BAP priority habitats increased from 49 to Priority River Habitat: River water bodies will qualify as BAP priority habitat either because they are considered to be near-natural, or because they fulfil one or more specific criteria relating to BAP priority species or to particular habitat types. The criteria for priority river habitat were finally agreed and published in July 2010 and summarized as: Rivers of high hydromorphological status under the EC Water Framework Directive; Headwaters; Occurrence of the EC Habitats Directive Annex I habitat H3260 Water courses of plain to montane levels with the Ranunculion fluitantis and Callitricho-Batrachion vegetation. This includes, but is not confined to, all river Special Areas of Conservation (SACs) designated for the feature; Chalk rivers, as described in the pre-existing BAP definition; Active shingle rivers; Areas or Sites of Special Scientific Interest (ASSIs or SSSIs) designated for river species, riverine features or fluvial geomorphology. This also includes Geological Conservation Review (GCR) and Earth Science Conservation Review (ESCR) sites of importance for fluvial geomorphology; The presence of priority or indicator species, including: Annex II Habitats Directive species; BAP priority species; and invertebrate species which are strongly indicative of river shingle. 32. River Restoration Habitat: Under the WFD priority river habitat assessment, based on water body-scale evaluations of naturalness, it was determined that it would be more appropriate to look at naturalness of whole river systems in order to prioritise restoration actions at a catchment-scale. Under this approach it is important to prioritise restoration of degraded water bodies within river systems that contain priority river habitat. Therefore, river types forming part of the UK BAP priority habitat definition, but which do not feature on the priority habitat map, must be a focus for restoration action; for example much of the chalk river resource would be a priority for action, and headwaters particularly need more protection. Headwaters upstream of priority river sites should be considered a 14

15 particular restoration priority. A map has therefore been produced that targets rivers requiring restoration that do not feature on the priority habitat map, with the following statement given regarding chalk rivers: Given the high conservation value attached to chalk rivers in particular, this map is an important tool for targeting restoration activity for priority river habitat objectives and should be considered of equal importance to the priority habitat map itself. 33. The following priority habitat list represents those found as riparian wetlands, in one form or another, along the River Itchen. The generic descriptions of each priority habitat are given, although the extent of each as wetlands present on the Itchen are not reported. 34. Lowland calcareous grassland: Lowland calcareous grassland is characterised by vegetation dominated by grasses and herbs on shallow, well-drained soils which are rich in bases (principally calcium carbonate) formed by the weathering of chalk and other types of limestone or base-rich rock. Lowland calcareous grasslands support a very rich flora including many nationally rare and scarce species as well as diverse invertebrate fauna. 35. Good quality semi-improved grassland: Although this habitat does feature on the priority habitats list, it does not have an associated habitat description. These typically represent grassland that has benefitted from agricultural improvement. 36. Lowland meadows: Includes most forms of unimproved neutral grassland across the enclosed lowland landscape of the UK. They primarily embrace each type of Cynosurus cristatus- Centaurea nigra grassland, Alopecurus pratensis-sanguisorba officinalis floodplain meadow and Cynosurus cristatus-caltha palustris flood-pasture. 37. Coastal and floodplain grazing marsh: Periodically inundated pasture or a meadow with ditches that maintain the water levels, containing standing brackish or fresh water. 38. Lowland fens: Fens are peatlands which receive water and nutrients from the soil, rock and ground water as well as from rainfall. Fen habitats support a diversity of plant and animal communities. The UK is thought to host a large proportion of the fen surviving in 15

16 the EU; as in other parts of Europe fen vegetation has declined dramatically in the past century. 39. Purple moor grass and rush pasture: Occurs on poorly drained, usually acidic soils in lowland areas of high rainfall. Vegetation consists of various species-rich types of fen meadow and rush pasture; purple moor grass Molinia caerulea and sharp-flowered rush Juncus acutiflorus are usually abundant. Plant communities often occur in mosaic with one another. This habitat is highly susceptible to agricultural modification and reclamation. 40. Reedbeds: Reedbeds are wetlands dominated by stands of the common reed Phragmites australis, wherein the water table is at or above ground level for most of the year. They tend to incorporate areas of open water and ditches, and small areas of wet grassland and carr woodland may be associated with them. 41. Lowland deciduous woodland: Lowland mixed deciduous woodland includes woodland growing on the full range of soil conditions, from very acidic to base-rich, and takes in most semi-natural woodland in southern and eastern England. 42. Wet woodland: Wet woodland occurs on poorly drained or seasonally wet soils, usually with alder, birch and willows as the predominant tree species, but sometimes including ash, oak, pine and beech on the drier riparian areas. 16

17 CURRENT INTIATIVES Review of the Itchen SSSI and SAC Favourable Condition Table 43. In January 2014, the revised Common Standards Monitoring guidance (CSMG) for rivers was published by the Joint Nature Conversation committee (JNCC). This updated various standards used to ascertain the condition of river channels, as set out in the Favourable Condition Table. Of particular note were flow and water quality targets. 44. Following publication of this guidance discussions took place between EA and NE to enable the Rivers Test and Itchen to be included within the second cycle River Basin Management Plan consultation (RBMP2) as part of the protected area obligations of the Water Framework Directive (WFD). These negotiations applied the guidance informed by local data sets and a nationally agreed decision tree approach to set the long term rcsmg river specific targets for the Test and Itchen. In addition an interim progress goal was defined which was to be delivered by the end of the RBMP2 plan cycle in Using EA data on current flows and geomorphology, and the river types set out in the CSMG (using parameters for low altitude, high alkalinity rivers), revised flow targets were agreed, including the current Hands Off Flow levels discussed with Southern Water for their abstractions. The process revealed a difference in channel typology along the Arle and Candover, with subsequent splitting of unit 103 to account for this (new units: 142, 143). The revised targets were signed off during September 2014 by both NE and EA, apart from unit 91, which required additional investigation. Please see Appendix 4. At the time there were still ongoing discussions on the impacts of the abstraction within Southern Waters stakeholder group called the Western Areas Water Resources Group. In addition, further discussions on the flow splits and location of mean high water mark took place. This resulted in the internal Natural England conclusion that the rcsmg should apply down to the mean high water mark, which is currently the bottom of the SSSI, in line with the exiting SSSI and rcsmg guidance on river SSSI designation. The unit 91 flow target has not yet been updated to reflect this discussion. River Restoration Strategy 46. In 2011 the EA and NE agreed a joint strategy to restore naturally-functioning geomorphology of the Test and Itchen in 2011, following a systematic survey of all reaches where access was granted by the landowner. This categorised stretches of river into those requiring: Restoration significant changes to the channel required for natural function; Rehabilitation minor channel adjustments required; Conserve and enhance channel management advice provision 17

18 47. Each reach was prioritised using criteria such as value for money, the categories above, and willingness of the landowner. Since then, the EA s appointed river restoration officer has liaised with landowners to restore priority reaches, funded through EA and NE funds. NE continues to contribute funding for the strategy in general, as well as specific projects where funds allow. For example, a significant stretch of the Cheriton Stream was restored at Tichborne during River Itchen Site Improvement Plan 48. As part of IPENS (Improvement Programme for England s Natura 2000 Sites), a Site Improvement Plan (SIP) was published for the River Itchen SAC in October See Appendix The plan provides a high level overview of the issues (both current and predicted) affecting the condition of the Natura 2000 features on the site(s) and outlines the priority measures required to improve the condition of the features. It does not cover issues where remedial actions are already in place or ongoing management activities which are required for maintenance. This is important, as most reasons for adverse condition on the Itchen have remedies underway, but the funding for these measures is uncertain. Examples include Catchment Sensitive Farming (CSF), Higher Level Stewardship (HLS) and now the new Countryside Stewardship (CS) scheme, Restoring Sustainable Abstraction (an EA action), and the River Restoration Strategy. 50. The SIP consists of three parts: a Summary table, which sets out the priority Issues and Measures; a detailed Actions table, which sets out who needs to do what, when and how much it will cost; and a set of tables containing contextual information and links. 51. SIPs are based on Natural England s current evidence and knowledge. SIPs are not legal documents, they are live documents that will be updated to reflect changes in evidence/knowledge and as actions get underway. The information in the SIPs will be used to update England s contribution to the UK s Prioritised Action Framework (PAF). River Itchen Water Level Management Plan 52. The River Itchen Water Level Management Plan (WLMP) is a project led by the EA to develop a framework for management of a water level regime in order to maintain or improve the condition and features of nature conservation interest within the SSSI. In particular, this project focuses on the physical management of water to control river, ditch and riparian water levels. This began in 1999 with a report that highlighted the importance, but was unable to suggest recommendations due to limited knowledge. Following this, the EA and NE (EN at the time), agreed that a WLMP was needed that accounted for integrated components addressing smaller geographical areas. A WLMP was produced in 2007 by the EA where 13 management units were determined necessary for the overall management of water levels, with a focus on terrestrial wetlands selected on the principal of particular 18

19 conservation objectives and the provisional solutions for any water level issues revealed. Feasibility and costing assessments have continued for several years after this. Water Industry National Environment Programme 53. The Water Industry Natural Environment Programme (WINEP) is the Environment Agency s programme of measures and investigations to ensure that statutory environmental drivers are being implemented through the water company price review process. The current WINEP programme includes drivers for assessing the impact of water company abstractions on designated sites and NERC priority habitats and species. Southern Waters abstractions on the Rivers Test and Itchen are included for investigation in the draft programme under a range of drivers for investigation including all the licences that are subject to this inquiry. In addition there is a driver for all the water company abstraction assets affecting the Test and Itchen to assess the cost and feasibility of achieving the revised CSMG long term targets for river flows and water quality. 19

20 LEGAL PROTECTION 54. This section of Natural England s pre-inquiry Statement of Case discusses the legal nature of the duties to conserve SACs (Habitats Directive, Habitats Regulations), SSSIs (section 28 of the 1981 Act), and biodiversity and priority habitats & species (sections 40 and 41 NERC Act 2006). SACs - The Habitats Directive 3 and Habitats Regulations The River Itchen SAC has been designated under the duty given by Article 3 of the Habitats Directive, to set up a coherent European ecological network of special areas of conservation composed of sites hosting natural habitat types listed in Annex I of the Directive and habitats of the species listed in Annex II. 56. Article 2 of the Habitats Directive provides that: (1) The aim of this Directive shall be to contribute towards ensuring bio-diversity through the conservation of natural habitats and of wild fauna and flora (2) Measures taken pursuant to this Directive shall be designed to maintain or restore, at favourable conservation status, natural habitats and species of wild fauna and flora of Community interest. (3) Measures taken pursuant to this Directive shall take account of economic, social and cultural requirements and regional and local characteristics. 57. In Article 1 of the Habitats Directive the following terms are defined: (a) conservation means a series of measures required to maintain or restore the natural habitats and the populations of species of wild fauna and flora at a favourable status as defined in (e) and (i); (e) conservation status of a natural habitat means the sum of the influences acting on a natural habitat and its typical species that may affect its long-term natural distribution, structure and functions as well as the long-term survival of its typical species The conservation status of a natural habitat will be taken as favourable when: 3 Council Directive on the conservation of natural habitats and of wild fauna and flora (92/43/EEC). 4 The Conservation of Habitats and Species Regulations 2017 (SI 2017 No. 1012). 20

21 - its natural range and areas it covers with that range are stable or increasing, and - the specific structure and functions which are necessary for its long-term maintenance exist and are likely to continue to exist for the foreseeable future, and - the conservation status of its typical species is favourable as defined in (i); (i) conservation status of a species means the sum of the influences acting on the species concerned that may affect the long-term distribution and abundance of its populations The conservation status will be taken as favourable when: - population dynamics data on the species concerned indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitats, and - the natural range of the species is neither being reduced nor is likely to be reduced in the foreseeable future, and - there is, and will probably continue to be, a sufficiently large habitat to maintain its populations on a long-term basis; 58. Regulation 9 of the Habitats Regulations provides that: (1) The appropriate authority, the nature conservation bodies and, in relation to a marine area, a competent authority must exercise their functions which are relevant to nature conservation, including marine conservation, so as to secure compliance with the requirements of the Directives. (2) Paragraph (1) applies, in particular, to functions under these Regulations and functions under the following enactments (g) Part 1 (wildlife) and sections 28 to 28S and 31 to 35A of the WCA 1981 (which relate to sites of special scientific interest); (h) the Water Resources Act 1991; 21

22 (k) the Natural Environment and Rural Communities Act 2006; (3) Without prejudice to the preceding provisions, a competent authority, in exercising any of its functions, must have regard to the requirements of the Directives as far as they may be affected by the exercise of those functions. 59. Regulation 3 defines the following terms: the appropriate authority means the Secretary of State in relation to England and any person exercising any function of the Secretary of State the Directives means the Habitats Directive and the New Wild Birds Directive. functions includes powers and duties. competent authority includes any Minister of the Crown and any person exercising any function of a Minister of the Crown. 60. From the above it is clear that there is a duty on the Secretary of State to ensure that the designated habitats and species within the River Itchen SAC must be maintained at, or restored to, favourable conservation status. That duty applies when the Secretary of State is exercising functions under the Water Industry Act Furthermore, when the exercise of those functions involves consideration of whether or not to give consent to a plan or project the additional provisions of Article 6 of the Habitats Directive (and the corresponding provisions of the Habitats Regulations) apply. Article 6(2) Article 6(3) Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive. Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its 22

23 implications for the site in view of the site s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, having obtained the opinion of the general public. Article 6(4) If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted. 62. Natural England expects it to be agreed that the abstraction proposals that are the subject of these appeals amount to a plan or project for the purposes of Article 6. 3 of the Habitats Directive and Reg. 63 (1) of the Habitats Regulations. If this is incorrect, Natural England wishes to make further submissions on this subject. 63. The heart of the legal protection conferred by Article 6.3 of the Habitats Directive and Chapter 1 of Part 6 of the Habitats Regulations lies in the two-part appraisal process to which plans or projects must be subject: likely significant effect : Reg. 63 (1)(a): consideration of whether the plan/project is likely have a significant effect on a SAC. appropriate assessment : Natural England expects it to be agreed that the abstraction proposals that are the subject of these appeals do raise this likelihood. If this is incorrect, Natural England wishes to make further submissions on this subject. Reg. 63: Reg. 63 (5): appropriate assessment of the implications of the plan or project for that site in view of that site s conservation objectives. In the light of the conclusions of the assessment, and subject to [considerations of overriding public interest] the competent authority may 23

24 agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the [SAC]. 64. The Waddenzee 5 judgment of the Grand Chamber of the CJEU sets out the tests that the Secretary of State must use when applying the provisions of Regulation 63 (5). Government Circular Biodiversity and Geological Conservation Statutory obligations and their impact within the planning system ODPM Circular 06/ correctly sets out this area of law, at its paragraphs 20 and 21: In the light of the conclusions of the assessment of the project s effects on the site s conservation objectives, the decision maker must determine whether it can ascertain that the proposal will not adversely affect the integrity of the site(s). The integrity of the site is the coherence of its ecological structure and function, across its whole area, that enables it to sustain the habitat, complex of habitats and/or levels of populations of the species for which it was classified. It is not for the decision-taker to show that the proposal would harm the site, in order to refuse the application or appeal. It is for the decision-taker to consider the likely and reasonably foreseeable effects and to ascertain that the proposal will not have an adverse effect on the integrity of the site before it may grant permission. If the proposal would adversely affect integrity, or the effects on integrity are uncertain but could be significant the decision-taker should not grant permission, subject to the provisions of Regulations 49 and 53 7 In the Waddenzee judgment, the European Court of Justice ruled that a plan or project may be authorised only if a competent authority has made certain that the plan or project will not adversely affect the integrity of the site. That is the case where no reasonable scientific doubt remains as to the absence of such effects. Competent national authorities must be convinced that there will not be an adverse effects and where doubt remains as to the absence of adverse effects, the plan or project must not be authorized, subject to the procedure outlined in Article 6(4) of the EC Habitats Directive regarding imperative reasons of overriding public interest. Original emphasis 5 ECJ case C-127/02: Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij. 6 Cited in the National Planning Policy Framework, footnote to paragraph The reference to Regulations 49 and 53 is to the 1994 Regulations, which were replaced and reenacted by Regulations 62 and 66 of the 2010 Habitats Regulations, themselves replaced and reenacted by the 2017 Regulations. 24

25 65. Thus when making decisions about water abstraction affecting SACs the Secretary of State may only grant consent if convinced, beyond reasonable scientific doubt, that the integrity of the SAC will not suffer as a result of the decision. 66. The exception to this is, of course, given by Article 6.4 of the Habitats Directive and Reg. 64 of the 2017 Regulations, and concerns plans or projects that must be carried out for imperative reasons of overriding public interest ( IROPI ) and for which no alternative solutions exist. If the Secretary of State finds that IROPI applies he must first consider whether the problem can be solved in another way. If it cannot, Reg. 68 applies, and any necessary compensatory measures are to be taken to ensure that the overall coherence of Natura 2000 is protected. 67. Natural England wishes to be consulted in any consideration of what might amount to necessary compensatory measures. 68. For the avoidance of doubt, the abstraction plans/projects that are the subject of these appeals are not directly connected with or necessary to the management of the site (see Reg. 63 (1)(b)). This class of plans/projects comprises only measures undertaken for the primary benefit or conservation management of the site. Natural England can make further submissions on this subject, if this becomes an issue. What is meant by the integrity of the site? 69. The term integrity is not defined in the Habitats Directive, but analysis of case law and guidance makes it clear that a broad definition is required. This is consistent with the context of Article 6.3 and the fact that the reference is to the integrity of the site concerned. Site is defined 8 as a geographically defined area whose extent is clearly delineated. Thus, integrity is not confined to a single feature of a site all constituent features of a site must be considered in determining whether overall integrity is at stake. 70. The European Commission s guidance Managing Natura discusses the concept of the integrity of the site at its paragraph 4.6.3, cited here in full: The concept of the integrity of the site It is clear from the context and from the purpose of the directive that the integrity of the site relates to the site s conservation objectives (see section above). For example, it is possible that a plan or project will adversely affect the integrity of a site only in a visual sense or only habitat types or species other than those listed in Annex I or Annex II. In such cases, the effects do not amount to an 8 Article 1 of the Habitats Directive. 9 EC Guidance: Managing Natura 2000 sites: The provisions of Article 6 of the Habitats Directive 92/43/EEC. 25

26 adverse effect for the purposes of Article 6(3), provided that the coherence of the network is not affected. On the other hand, the expression integrity of the site shows that focus is here on the specific site. Thus, it is not allowed to destroy a site or part of it on the basis that the conservation status of the habitat types and species it hosts will anyway remain favourable with in the European territory of the Member State. As regards the connotation or meaning of integrity, this can be considered as a quality or condition of being whole or complete. In a dynamic ecological context, it can also be considered as having the sense of resilience an ability to evolve in ways that are favourable to conservation. The integrity of the site has been usefully defined as the coherence of the site s ecological structure and function, across its whole area, or the habitats, complex of habitats and/or populations of species for which the site is or will be classified. A site can be described as having a high degree of integrity where the inherent potential for meeting site conservation objectives is realised, the capacity for selfrepair and self-renewal under dynamic conditions is maintained, and a minimum of external management support is required. When looking at the integrity of the site it is therefore important to take into account a range of factors, including the possibility of effects manifesting themselves in the short, medium and long-term. The integrity of the site involves its ecological functions. The decision as to whether it is adversely affected should focus on and be limited to the site s conservation objectives. Original emphasis 71. The judgment of the European Court of Justice in Sweetman 10 is relevant to the concept of site integrity. Paragraphs 36 to 39 of that judgment are as follows: 36. It follows that Article 6(2) to (4) of the Habitats Directive impose upon Member States a series of specific obligations and procedures designed, as is clear from Article 2(2) of the directive, to maintain, or as the case may be restore, at a favourable conservation status natural habitats and, in particular, special areas of conservation. 10 ECJ case C-258/11 Sweetman v An Bord Pleanála. 26

27 37. In this regard, according to Article 1(e) of the Habitats Directive, the conservation status of a natural habitat is taken as favourable when, in particular, its natural range and areas it covers within that range are stable or increasing and the specific structure and functions which are necessary for its long-term maintenance exist and are likely to continue to exist for the foreseeable future. 38. In this context, the Court has already held that the Habitats Directive has the aim that the Member States take appropriate protective measures to preserve the ecological characteristics of sites which host natural habitat types (see Case C-308/08 Commission v Spain [2010] ECR I-4281, paragraph 21, and Case C-404/09 Commission v Spain, paragraph 163). 39. Consequently, it should be inferred that in order for the integrity of a site as a natural habitat not to be adversely affected for the purposes of the second sentence of Article 6(3) of the Habitats Directive the site needs to be preserved at a favourable conservation status; this entails, as the Advocate General has observed in points 54 to 56 of her Opinion, the lasting preservation of the constitutive characteristics of the site concerned that are connected to the presence of a natural habitat type whose preservation was the objective justifying the designation of that site in the list of SCIs, in accordance with the directive. Emphasis added 72. A clear conclusion from Sweetman being that it is the totality of the ecological characteristics of a site that are to be protected from adverse effects. The subsequent ECJ case of Briels 11 affirmed this conclusion. 73. In relation to an Annex I river habitat, therefore, it is clear that the Habitats Directive (and thus the Habitats Regulations) require the preservation not only of the river, but equally the features that are characteristic of the river itself and are connected to the river itself because that is where they live or are found. 74. The domestic case of Feeney v Oxford City Council 12 takes a similarly broad approach to what constitutes an adverse effect on the integrity of a SAC, simply equating this with harm. 75. The strict precautionary approach illustrated in Waddenzee has been analysed and confirmed by the Court of Appeal in Smyth v Secretary of State for Communities and Local 11 C-521/12. Briels and others v Minister van Infrastructure en Milieu. 12 [2011] EWHC 2699 (Admin). 27

28 Government 13 and itself requires that where doubt exists as to whether an existing ecological feature is sufficiently connected with the natural habitat type in which it is found, that doubt should be resolved in favour of preserving the feature in question. 76. And these authorities for a broad and holistic interpretation of the term site integrity are fully in accord with the provisions of Articles 1 and 2 of the Habitats Directive, cited above. The overall aim of the Directive being to maintain or restore favourable conservation status for habitats and species listed in Annex I and II of the Habitats Directive, with conservation status being defined as the sum of the influences acting on a natural habitat and its typical species that may affect its long-term natural distribution, structure and functions as well as the long-term survival of its typical species. 77. The formal citation for the River Itchen SAC is a simple and concise document. Natural England believes that it contains no superfluous words and that the features that it describes under the heading Site Description are all constitutive characteristics of the site concerned that are connected to the presence of a natural habitat type whose preservation was the objective justifying the designation of that site, and that they are key ecological characteristics of the site. 78. Additionally, as a matter of policy and fact, all parts of terrestrial SACs sites are also notified as SSSIs and therefore also benefit from the protection available to SSSIs. 13 [2015] EWCA Civ

29 SSSIs - The Wildlife and Countryside Act Where Natural England is of the opinion that any area of land in England is of special interest by reason of any of its flora, fauna or geological or physiographical features, it is its duty under Section 28 of the Wildlife and Countryside Act 1981 (as amended) ( the 1981 Act ) to notify that fact. Such sites are called SSSIs. 80. Prior to October 2006, SSSIs were notified by Natural England s predecessors, English Nature and the Nature Conservancy Council. Before the 1981 Act came into being, SSSIs were notified under the National Parks and Access to the Countryside Act 1949 by the Nature Conservancy Council. 81. The SSSI notification documents comprise: a map, a statement of the special interest features (known as the Citation), a list of operations considered likely to damage the special interest of the site and a statement of Natural England s views about management of the land. 82. SSSIs benefit from a variety of legal and policy-based protections, including: criminal sanction for unauthorised operations by owners or occupiers, criminal sanction for damage, court-ordered restoration following damage, mechanisms to require conservation works, the ability to impose byelaw control, special status in planning policy and special status in Government policy on biodiversity. 83. Of specific relevance here is section 28G of the 1981 Act, which imposes a duty on (amongst others) the Secretary of State for the Environment, Food and Rural Affairs: s. 28G (1) An authority to which this section applies (referred to in this section and in sections 28H and 28I as a section 28G authority ) shall have the duty set out in subsection (2) in exercising its functions so far as their exercise is likely to affect the flora, fauna or geological or physiographical features by reason of which a site of special scientific interest is of special interest. s. 28G (2) The duty is to take reasonable steps, consistent with the proper exercise of the authority s functions, to further the conservation and enhancement of the flora, fauna or geological or physiographical features by reason of which the site is of special interest. S. 28G (3) The following are section 28G authorities: (a) a Minister of the Crown or a Government department. 29

30 84. Thus, when making decisions about water abstraction affecting SSSIs, the Secretary of State is under a duty to take reasonable steps to further the conservation of the site s special features. Where those sites are also SACs further duties apply. 85. In addition, where the permission of a section 28G authority is needed before proposed operations may be carried out, the section 28G authority must, in accordance with section 28I(5) of the 1981 Act, take any advice received from Natural England into account: 14 (a) (b) in deciding whether or not to permit the proposed operations; and if it does decide to do so, in deciding what (if any) conditions are to be attached to the permission. 86. Where a SSSI is in a condition other than favourable the duty to further the conservation and enhancement of the features of special interest amounts to a duty to seek to restore those features to favourable condition. Where condition is already favourable, the duty is to seek to maintain that status. Priority habitats and species The Natural Environment and Rural Communities Act Sections 40 and 41 of the NERC Act 2006 provide as follows: Duty to conserve biodiversity 40 (1) Every public authority must, in exercising its functions, have regard, so far as is consistent with the proper exercise of those functions, to the purpose of conserving biodiversity. (2) In complying with subsection (1), a Minister of the Crown must in particular have regard to the United Nations Environmental Programme Convention on Biological Diversity of (3) Conserving biodiversity includes, in relation to a living organism or type of habitat, restoring or enhancing a population or habitat. (4) Public authority means any of the following (a) a Minister of the Crown; 14 Natural England accepts that the notice requirements of section 28I(2) to (4) have been satisfied for the purposes of the Secretary of State s determination of the planning applications at issue here. 30

31 (e) a statutory undertaker. Biodiversity lists and action (England) 41 (1) The Secretary of State must, as respects England, publish a list of the living organisms and types of habitat which in the Secretary of State s opinion are of principal importance for the purpose of conserving biodiversity. (2) Before publishing any list the Secretary of State must consult Natural England as to the living organisms or types of habitat to be included in the list. (3) Without prejudice to section 40(1) and (2), the Secretary of State must (a) take such steps as appear to the Secretary of State to be reasonably practicable to further the conservation of the living organisms and types of habitat included in any list published under this section, or (b) promote the taking by others of such steps. 88. In relation to the habitats and species described in this Statement of Case as being listed pursuant to s. 41 (1) (and therefore in relation to the places in which they are found) the duty of the Secretary of State in these appeals is as set out at s. 40 (1) and (3) and s. 41 (3), above. Water Framework Directive 89. The requirements of one EC Directive should not be used to undermine the objectives of another. Where WFD water body boundaries overlap with SAC water bodies the more stringent requirements of the Habitats Directive prevail. Similarly, Common Standards Monitoring targets for SSSI water bodies are more stringent than WFD objectives. Tiers of legal protection 90. The three sources of statutory protection for habitats and species outlined above are capable, in relation to one species or habitat in one place, of all applying together. Although the protection conferred by the Habitats Directive appears to be the strongest (at least in terms of protection against damaging activities that require consent) it does not follow that in a SAC the protections afforded by SSSI status or presence on a list of priority habitats or species simply fall in behind the protections afforded to the SAC. 31

32 91. By way of explanation, the River Itchen SAC is designated because the river is an Annex I habitat, and because certain Annex II species live there. That habitat and those species and the ecological characteristics of the site and its constitutive characteristics (see Sweetman) and the sum of the influences acting on the habitat and the species (see Article 1 (e) and (i), ibid) are protected by the Habitats Regulations. 92. But the River Itchen is also a SSSI, and its cited features of special scientific interest are considerably wider than those that led to SAC status. Those features are protected by the SSSI legislation. And any species or habitats listed as being of principal interest for the conservation of biodiversity but which are not found on the SAC or SSSI citations, notwithstanding their presence on the site, are protected by the NERC Act. Policy 93. DEFRA s policy Biodiversity 2020: A strategy for England s wildlife and ecosystem services is relevant to these appeals. The mission for this strategy is identified at paragraph 8 of the document: to halt overall biodiversity loss, support healthy well-functioning ecosystems and establish coherent ecological networks, with more and better places for nature for the benefit of wildlife and people. 94. Water management has been identified as a key sector. From paragraph 20: Water Management We will protect water ecosystems, including habitats and species, through a river basin planning approach. We will also promote approaches to flood and erosion management which conserve the natural environment and improve biodiversity. 95. DEFRA s 2020 Mission is stated to be: 2020 Mission Our mission is to halt overall biodiversity loss, support healthy well-functioning ecosystems and establish coherent ecological networks, with more and better places for nature for the benefit of wildlife and people. Outcome 1 Habitats and ecosystems on land (including freshwater environments) By 2020 we will have put in place measures so that biodiversity is maintained and enhanced, further degradation has been halted and where possible, restoration is underway, helping deliver more resilient and coherent ecological networks, 32

33 healthy and well-functioning ecosystems, which deliver multiple benefits for wildlife and people, including: 1A. Better wildlife habitats with 90% of priority habitats in favourable or recovering condition and at least 50% of SSSIs in favourable condition, while maintaining at least 95% in favourable or recovering condition; 1B. More, bigger and less fragmented areas for wildlife, with no net loss of priority habitat and an increase in the overall extent of priority habitats by at least 200,000 ha; 1C. By 2020, at least 17% of land and inland water, especially areas of particular importance for biodiversity and ecosystem services, conserved through effective, integrated and joined up approaches to safeguard biodiversity and ecosystem services including through management of our existing systems of protected areas and the establishment of nature improvement areas; 1D. Restoring at least 15% of degraded ecosystems as a contribution to climate change mitigation and adaptation. 96. The relevance of this mission, in appeals involving a SAC, SSSIs and priority species and habitats which are in unfavourable condition as a consequence (in part) of water abstraction, is clear. 33

34 NATURAL ENGLAND S APPROACH TO DECISION-MAKING FOR FRESHWATER PROTECTED SITES Conceptual basis 97. Natural England s general approach to freshwater habitats is based on the concept of natural habitat function. The form and function of freshwater habitats is naturally shaped by the inherent characteristics of the catchment and its received climate its topography, geology and soils and the passage that rainwater takes through surface, sub-surface and groundwater pathways, as modified by the natural development of vegetation along those pathways. 98. This combination of natural abiotic and biotic processes determines the hydrological character, water chemistry and physical habitat mosaic of freshwater habitats, as well as their relationship to terrestrial wetland (and dry) habitats. Our native freshwater and wetland species have evolved to exploit the opportunities provided by this natural habitat template, and their conservation is best based on these opportunities as far as possible. This provides a means by which all of our native freshwater species, including those of particular conservation priority, can be catered for in a holistic way. 99. A very wide range of human activities can impair natural habitat function in freshwaters, including pollution, abstraction and other flow modifications, engineering works and direct impacts on natural biological assemblages such as from non-native species and fishery management. Natural England s aim is to minimise these impacts as far as possible, recognising that the extent to which this can be achieved varies according to local constraints and opportunities and the nature and strength of the protection mechanisms that apply (specially protected sites, priority habitats and species, and Water Framework Directive provisions). Translation into practice 100. This conceptual thinking runs through Natural England s approach to specially protected freshwater sites and priority freshwater habitats and species: the needs of individual species are nested within the needs of habitats, and the needs of habitats are framed in terms of natural habitat function. For protected freshwater sites this manifests itself through SSSI favourable condition tables and supplementary advice on SACs. For priority freshwater habitats and their species it manifests itself in priority habitat mapping and new proposals for condition assessment This thinking has strong links with the ecological rationale for the Water Framework Directive (WFD), which measures impacts and defines objectives in relation to a nearunimpacted reference conditions. However, the detailed links to WFD decision-making are complex in practice; protected site and priority habitat objectives can be seen as providing greater clarity of the importance of natural habitat function than is typical in WFD decision- 34

35 making, and generating additional impetus for its protection and restoration in local decisionmaking Generally there is a great deal of natural synergy between condition targets set for SSSI/SAC river habitat and generic standards set for HES under the WFD they both seek a higher level of protection of natural function than is possible in the wider freshwater environment, but with different justifications (for SSSIs/SACs because they have special legal status afforded by their notification, and for HES because certain waterbodies are already in a largely unimpacted state and can be safeguarded simply by avoiding deterioration). Rivers and streams notified for SSSI/SAC river habitat would ideally be the same as those with HES objectives, but very few waterbodies have HES as an objective in England and these only relate to certain river types (small, upland). Notified features of river SACs and SSSIs 103. There is a strategic series of river SSSIs in England, notified as best (most natural) remaining examples of river habitat variation. There are very few river SSSIs or SACs that are notified purely for individual species most include a range of notified SSSI and SAC species, but their requirements are nested within SSSI (and often SAC) river habitat. The conservation focus is on protecting and (where necessary) restoring as much natural habitat function as possible, for the whole characteristic biological assemblage including specifically notified species The designated river habitat feature (whether SSSI or SAC) is taken to comprise all components of river habitat, including in-channel, marginal and riparian habitats and any adjacent floodplain habitats that are hydrologically dependent on the river. The hydrological, chemical, physical and biological elements of the river are all considered to be integral components of the river habitat feature, which provides the basis for direct protection of natural habitat function. Condition targets are set to protect the natural function of each of these components, which allows measures to be taken on each component independently of action on other components, simplifying operational decision-making and clarifying the roles of different partners and stakeholders. These targets allow for a degree of impact on natural habitat function that is considered to be acceptable by Natural England habitat specialists. Ideally, there would be no significant impacts on natural habitat function and SSSI and SAC rivers would operate completely naturally, but this is not generally an achievable goal (except on more isolated parts of some river SSSI/SACs). Common Standards Monitoring 105. UK Common Standards Monitoring (CSM) guidance is designed to generate a consistent technical approach to the assessment of condition (and through this the management) of SSSI features across the UK statutory nature conservation bodies (SNCBs). It is divided into chapters covering different broad habitats types and species groups. 35

36 106. The conceptual approach to conserving freshwater habitats described above is embedded in UK CSM guidance for freshwater habitats and species. This guidance was first published in 2005, and was updated through a protracted review over the period , finally being re-published in The 2005 guidance defined targets to protect the natural function of river habitat, including flow regime, water quality, physical form and function, and the natural character of the biological assemblage, treating SSSI and SAC river habitat in exactly the same way. These targets were numerical as far as possible, and the values varied where necessary to take account of variations in the natural condition of rivers. The revised guidance published in 2014 took the same general approach and sought to provide stronger underpinning evidence for targets, greater harmony with standards set for ecological status under the Water Framework Directive where this was possible, more technical consultation with experts and UK environmental agencies, and a more robust audit trail of decision-making. Changes were made to a range of condition attributes and targets accordingly Copies of the 2005, 2014 and 2016 editions of the UK CSM guidance for freshwater habitats and species are at appendix Associated with this, CSM guidance on key freshwater fauna species was published in 2005, and underwent a parallel review process leading to its re-publication in The original 2005 guidance was designed to be explicit about the optimal requirements of each species but to encourage the securing of these requirements through the requirements for SSSI/SAC freshwater habitats (including river habitat) set out in the associated habitat guidance. The revised freshwater fauna guidance published in 2015 further strengthened the nesting of species requirements in SSSI/SAC habitat requirements based on natural function Copies of the 2005 and 2015 editions of the UK CSM guidance on key freshwater fauna species are at appendix One important general point to note is that CSM condition targets for SSSI/SAC river habitat are intended to be precautionary and ambitious in the approach to natural habitat function. River SSSIs and SACs constitute a small proportion of the river network in England and the UK more generally, and there are expectations that natural habitat function will be protected and restored with greater vigour than is practically possible right across the wider river network. Set against this high general level of precaution and ambition is local pragmatism: generic condition targets can be modified locally if it can be demonstrated that they are not technically feasible to achieve in the long-term. This is intended to be a tough test requiring a robust evidence base. If targets are modified locally, they still need to approach natural habitat function as closely as possible. 36

37 The history of CSM targets for flow regime 111. The original 2005 CSM guidance for SSSI/SAC river habitat included a single generic target to protect the natural flow regime: there should be no more than 10% deviation from daily naturalised flows, applied across all river types and all flow conditions (from low flows to high flows and everything in between). There was also a stipulation that any local flow targets set to protect specific aspects of the biota should also be complied with The daily naturalised flow is the flow that would occur at a specific point on a specific river in the absence of abstractions and discharges. It is a measure of the natural flow regime that takes into account variations in rainfall, but it does not consider the effect of land drainage. Ideally it would include all types of flow modification to a river, but this is the measure used by the UK environmental agencies to determine natural flows for water resource management purposes, and was therefore adopted in CSM guidance The generic target was applicable throughout a SSSI/SAC, reportable at the level of individual assessment units (long river reaches). The aim of the target was to protect the entire flow regime by limiting hydrological modifications to a relatively small proportion of the flow on each day of the year. The target was intended to protect against both the removal and addition of water to the natural flow regime, since both can have adverse effects on river habitat and its characteristic flora and fauna The use of a single numerical value for all rivers and all flow conditions was strongly criticised by the UK environmental agencies, who requested that the SNCBs seek to introduce variation in acceptable levels of flow modification to cover different circumstances. It is important to note that, although one numerical value was used, it is framed as a percentage of daily naturalised flows. The absolute amount of water that can be removed without causing non-compliance with the target therefore varies widely between different rivers and different flow conditions, depending on the naturalised flow on any one day At this time within England, English Nature (as was) agreed with the Environment Agency that a broader range of values of percentage deviation from the natural flow regime could be used on SAC and SSSI rivers, to reflect differences in flow conditions and river types. This was seen as an English refinement of CSM guidance. A modified version of the Environment Agency s Resource Assessment Method was used for this. Flow targets were set for all English SAC and SSSI rivers on this basis, and these were included in Favourable Condition Tables at the time As part of the review of CSM guidance, an evidence base was drawn together to clarify the nature of flow-related impacts and inform decisions about revisions to flow targets. This documented published literature on the various types of impact of different flow modifications on both natural habitat provision and different components of characteristic biological assemblages. 37

38 What the CSM evidence review revealed 117. The evidence base highlighted a range of impacts associated with low, moderate and high natural flows, and the importance of protecting the whole of the natural flow regime. It therefore supported the need to express condition targets for SSSI/SAC river habitat on deviations from the natural flow regime. It also supported the need to protect against both flow reductions and additions to the natural regime An important distinction was apparent between impacts on habitat character, relating largely to changes in current velocity and associated parameters (such as substrate condition and water quality), and impacts on habitat extent, relating to loss and gain of different small-scale habitats such as riffles, pools, marginal areas, and ephemeral stream sections Variability in what the evidence base said about flow-related impacts was very apparent. Different types of impact on habitat provision adversely affect some species whilst benefitting others, meaning that the evidence base can appear conflicting when viewed from a species perspective. Differential impacts are also evident on different life stages of the same species (e.g. juveniles and adults of Atlantic salmon). The natural flow regime, considered in conjunction with natural physical, chemical and biological function, provides a reference point against which the effects on individual species and life stages can be judged. Spatial scale of observation is also critical: impacts on sensitive small-scale habitats within a river reach can look like noise in flow-impact relationships that are characterised at reach-scale. In reality, these small-scale impacts are all valid expressions of habitat sensitivity that need to be considered and controlled in management decision-making Whilst the nature of the impacts was relatively easy to characterise in the evidence review, defining numerical values to protect the natural flow regime against this wide range of impacts was fraught with difficulty. A general conclusion was possible that the further the flow regime deviates from the natural regime, the greater the consequences for river habitat and characteristic biological assemblages. However, the majority of the evidence base is not amenable to analysis in relation to natural flow regimes that would provide clear numerical answers. Key reasons are: much of the evidence base is not referenced to the natural flow regime; the relationships between flow and ecological response vary widely depending on which aspect of the biota or its habitat that is considered, and in different rivers; such relationships tend to be smoothly continuous without step changes in impact, so do not point clearly to any one point on the response scale that might be taken as a definitive point of unacceptable impact; 38

39 various other environmental factors confound the relationship between artificial flow modifications and ecological effects, particularly physical habitat modification (channel engineering and maintenance) and water quality. How the current CSM guidance on flow targets was derived 121. There was strong support in the published literature for using flow-based targets to control flow modifications where the ecological objectives for a river are less easily defined (such as for protection of the whole biological community) or where a high level of ecosystem protection is required (as is the case with specially protected sites). This reinforces the conclusions drawn from the evidence base about the importance of targets that protect the natural flow regime. This approach places emphasis on the strength of the generic evidence base on flow-related impacts, recognising the difficulties of establishing a coherent and comprehensive local evidence basis on which to set flow targets suitable for each SSSI and SAC river Freshwater habitat specialists within the SNCBs sought to define deviations from the natural flow regime where there is reasonable confidence of no significant adverse effects on natural habitat function. The ideal scenario is for there to be no impact on the natural flow regime - percentage deviations close to zero were felt to be appropriate for the most sensitive situations. It was felt that percentage deviations of perhaps up to 20% might be acceptable in the least sensitive situations. This range of deviations was supported by subjective judgements made by external hydroecological experts brought together to advise the UK environment agencies about protecting good ecological status under the WFD Based on best judgement, the SNCBs spread this range of percentage deviation values (from near 0% up to 20%) across river types and flow conditions, in a way that most supported the relative flow sensitivities highlighted by the evidence base. In terms of variation in ecological sensitivity between river types, the only clear basis for differentiating between rivers was on the basis of size (using flow magnitude). There is considerable justification for differentiating between the sensitivity of different small-scale habitats within rivers, but these habitats commonly occur in a wide range of river types, differing only in their spatial extent or frequency of occurrence. Flow targets that apply to whole river reaches (as CSM targets do) need to be capable of protecting the most sensitive smallscale habitats within a given river reach, so there is no basis for including this small-scale variation in flow sensitivity within a general river typology for flow targets. In terms of flow condition, the evidence base pointed to greater ecological sensitivity to flow modifications at low flows (though this does not imply low sensitivity at higher flows) The SNCBs were as accommodating as possible of the wishes of the UK environmental agencies, in terms of trying to accommodate less stringency and more variation in CSM flow targets. The result was that the levels of deviation now allowed for by the resulting generic flow targets does not appear particularly precautionary or ambitious to SNCB specialists in some cases, in the context of SSSI/SAC river habitat. To compensate for this, a further 39

40 generic flow target was included in CSM guidance which provides greater protection of the natural flow regime where this is technically achievable. This target is the same as the flow standard used by the UK environmental agencies to protect HES under the Water Framework Directive waterbodies, which helps to create greater alignment with WFD standards. Current CSM flow targets 125. The generic flow targets in the current version of CSM guidance for river habitat are laid out in Tables 1 and 2. Table 1 includes the flow standards that support HES these should be applied where it is technically feasible to achieve compliance with them, to protect the natural flow regime as much as possible. Table 2 provides variable flow targets based on river size and flow condition which should be considered as the minimum protection that is acceptable. Current CSM guidance for freshwater species advises that the approach to flow targets to protect river habitat should also be used for as targets for individual species covered by the species guidance. In reality, in most English river SSSIs/SACs there is an underlying river habitat notification which drives the flow targets that apply. Table 1. CSM headline river flow targets and method of assessment. Targets for river flow Method of assessment The natural flow regime of the river should be protected. Daily flows should be close to what would be expected in the absence of abstractions and discharges (the naturalised flow). Flow targets for WFD high ecological status should be used to avoid deterioration and for restoration where this is technically feasible. These are: <5% deviation at <Qn95 and <10% at >Qn95 - based on natural water (i.e. water that has not been abstracted and returned). There should be no obvious problems with water availability within the assessment unit Springs in aquifer-fed rivers should be maintained Gauging station data and expert assessment from relevant environment agency Field observations/spot gauging Field observations 40

41 Table 2. CSM minimum acceptable flow targets in relation to river size and discharge River size < Qn95 (Low flows) Qn50-95 (Low-moderate flows) Qn10-50 (Moderate-high flows) Headwater River Large river Values are percentage deviations from daily naturalised flows. Qn = Naturalised flow. > Qn10 (High flows) Qn values range from Qn0 (naturalised flow exceeded 0% of the time in the flow record used, i.e. highest recorded flow) to Qn100 (flow exceeded 100% of the time in the flow record used, i.e. lowest recorded flow) It is important to note that the flow targets in Table 2 relate to the specific naturalised flow on the day of observation. So on each day, the acceptable percentage deviation is based on the naturalised flow that is estimated for that specific day. This means that the allowable level of absolute flow modification progressively diminishes as flows decline in the river down to the minimum naturalised flow (Qn100). Down at these levels of extreme low flow, drought plans are triggered and the available water is distributed between essential water supply and the environment. Compliance at these extreme low flows will be pragmatically dictated by compliance with an acceptable local drought plan rather than compliance with the CSM flow targets. However, a Hands-Off Flow condition on all abstractions (where it is consistent with the provision of essential water supply) would provide even better protection at these extreme low flows. Local application of CSM flow targets 127. CSM guidance provides notes on the circumstances under which generic targets might be modified by local evidence of ecological sensitivity. Local hydroecological investigations tend to be very partial in the coverage of mechanisms of impact, and on components of the habitat mosaics and biological assemblage. Some techniques, such as the LIFE macroinvertebrate metric, are very useful but only tell part of the story. It is very difficult to design local investigations that would be sufficiently robust to justify larger deviations from the naturalised flow regime than the CSM targets already allow CSM guidance states that: in order to refine CSM flow targets, investigations have to consider all key mechanisms of impact on characteristic biological communities, both in respect of changes in habitat character and habitat space. They also have to recognise that flow targets must be consistent with the needs of the river habitat under favourable physical and chemical conditions, necessitating hydroecological evaluation against suitable reference conditions. In instances where locally derived targets are deemed to be adequate replacements for generic flow targets they should still retain the same form of expression (i.e. % deviations from daily naturalised flows). In addition, a local investigation may provide 41

42 good grounds to modify the generic target for low naturalised flows (<Qn95) but not for higher naturalised flows, so a mixture of CSM and local targets might be applicable to a site depending on flow condition CSM guidance also provides notes on the assessment of compliance with generic flow targets. The flow targets apply throughout a site (not just at the very sparse network of flow gauging stations) and across all flow conditions. This requires the use of tools such as flow accretion diagrams to evaluate the effects of non-consumptive abstractions (where water is abstracted and returned at various points in the river system) and time series of observed daily flows and modelled naturalised daily flow for each day. CSM guidance notes that Flow Duration Curves, routinely used by the Environment Agency, do not adequately reflect impacts on naturalised flows because they decouple the observed flow from the modelled naturalised flow on each day. It may be possible to construct a flow duration curve that ensures compliance with CSM flow targets, but this should be demonstrated at site-level In seasonally intermittent streams such as winterbournes, flow accretion diagrams can be used to determine the effects of flow modifications on the duration of the seasonal dry period along different stream section. This critically dictates the level of wetland character in the biological assemblage of each stream section, and the CSM flow targets ensure that there is a natural longitudinal zonation of wetland character from the head of the intermittent section (driest character) down into the perennial stream. Reporting of SSSI/SAC condition and related decision-making 131. Based on the assessment of compliance with the full range of condition targets in individual SSSI/SAC reporting units within the river, the river habitat feature is assigned to one of three condition categories: Favourable condition the objectives for that feature are being met, it is in the state that we want. Unfavourable condition the state of the feature is currently unsatisfactory. Destroyed (partially or completely) the feature is no longer present and there is no prospect of being able to restore it Unfavourable condition is further sub-divided based on the trend in condition: Recovering, i.e moving towards the desired state. Declining, i.e moving away from the desired state. No-change, i.e. neither improving nor declining Favourable condition is also sub-divided based on recent change: Maintained, i.e. it has remained favourable since the previous assessment. Recovered, i.e. it has changed from unfavourable since the last assessment. 42

43 134. For SSI/SAC river habitat to be considered in favourable condition, all elements of natural function need to be compliant with condition targets for the site. Compliance with CSM targets for one element of natural function cannot be used as a surrogate for compliance with another element, because each element characterises different types of impact. Compliance with CSM targets using biological data (which are mainly WFD biological metrics in the updated CSM guidance) cannot be used as surrogates for compliance with abiotic targets relating to natural habitat function (e.g. flow targets) routinely collected biological data is not sufficiently sensitive to impacts on natural function to be used in this way Typically in river SSSIs/SACs, river habitat is notified along with a number of species, and the overall condition category assigned to an individual reporting unit reflects the feature in worst condition. This is typically river habitat because the intention is to protect the whole biological assemblage, but it may be a particular notified species In England, Unfavourable-recovering condition is typically assigned when plans are in place to achieve favourable condition over acceptable timescales. For this category to be used, all reasons for unfavourable condition should be covered by plans that will achieve favourable condition over acceptable timescales. Parallel approach to priority river habitat 137. The approach to priority river habitat in England has been updated in recent years, following changes to the UK definition of priority habitat in A wide range of river types is now included in the UK definition, not just chalk rivers as was previously the case. There are now very few lengths of river or stream that would not qualify as priority habitat on the basis of allocation to one river type or another included in the UK definition. Since the concept of priority habitat requires some sort of focus on a spatially restricted resource, an approach has been taken to priority habitat mapping based on identifying the most naturally functioning remaining examples of river habitat. To recognise the biodiversity importance of the wider river and stream network, the strategy for priority river habitat includes an overall aim to restore all rivers and streams towards more natural habitat function, recognising that the degree to which this can be achieved will vary at site-level according to practical constraints and opportunities. As part of this wider strategy, priorities for restoring more natural function, towards the levels exhibited by rivers and streams on the priority habitat map, need to be identified A new priority river habitat map has been generated for England, which is being progressively refined so that it becomes more and more accurate for use in local decisionmaking. This is particularly needed in the headwater stream resource, which represents around 70% of total river length in Great Britain. A further map has been created of restoration priorities, intended to identify rivers and streams where there is greatest potential for restoring more natural function. At present this includes all chalk rivers not on the new priority habitat map, as well as known records of active shingle rivers. Over time the 43

44 intention is that this map is refined to reflect local priorities for restoring more natural habitat function, accommodating both biodiversity and water priorities Very little monitoring and assessment, or management attention, is focused on headwater streams, and their protection needs to be given much greater consideration. Both perennial and intermittent stream sections are of high biodiversity importance, supporting distinctive flora and fauna and supporting the biological assemblages of downstream river sections, and the protection and restoration of their natural hydrological function is critical A condition assessment framework has been proposed for priority river habitat objectives, including assessment of sites on the priority habitat map and also the wider river and stream network. This framework is built on the concept of natural habitat function and follows a similar rationale to CSM monitoring of river habitat, building on the data provided by WFD and CSM monitoring. The extent to which this framework will be implemented depends on the outcome of current strategic monitoring reviews within the Defra family In responses to relevant consultations, NE identify the presence of priority river habitat or river restoration habitat to the determining authority, advising on risks and mitigation linked to the authority s duties under the NERC act. For example, for drought permit applications, Natural England identifies the location and any likely impacts on the priority river habitats of the permit option and advises the Environment Agency and the applicant on mitigation and monitoring. In addition Natural England will use the priority river habitat and river restoration habitat maps to prioritize where we seek environmental improvements using all available mechanisms. For example in the current round of water company planning there is a driver linked to NERC duties so improvements to assets negatively impacting priority river habitat are being sought using this driver. 44

45 THE ENVIRONMENT AGENCY S REVIEW OF CONSENTS IN The current impetus to protect the River Itchen from excessive abstraction derives from its SAC status and the effect of Article 6(2) of the Habitats Directive, which seeks to protect designated sites from the effects of activities that already have permission. Reg. 50 of the Conservation (Natural Habitats &c.) Regulations required competent authorities to review existing consents for activities that, if approached de novo, would engage Article 6(3). The review required the appropriate assessment of consents that were likely to have a significant effect, alone or in combination, on SACs/SPAs. On the basis of the appropriate assessment the competent authorities were to affirm, modify or revoke the existing consents. For the River Itchen SAC this (very large) assessment exercise started in the early 2000 s and these appeals represent its culmination The EA s Review of Consents (RoC) was divided into 4 stages: 1. Identification of all relevant consents; 2. Test for likely significant effect ; 3. Appropriate assessment; 4. Determination of the necessary actions, including the variation of existing abstraction licences. The River Itchen Sustainability Study 144. In the appropriate assessment stage information obtained during the earlier River Itchen Sustainability Study (RISS) was used. This work was commissioned by the EA and undertaken during following the designation of the River Itchen as a candidate Special Area of Conservation in The overall aim of the RISS was to investigate the impact of water company assets on the proposed EU protected site, with mitigation suggestions if any impacts were found. Additionally, there was the need to prepare and collate scientific evidence to enable competent authorities to undertake appropriate assessments once the SAC was designated In order to determine impacts from water company operations, the RISS looked at data from a 30 year ( ) period of ecological and hydrological recording. Assessments were based on best available science from field surveys, laboratory analyses, modelling (principally salmon, trout, habitat extent and invertebrates), DNA work and expert opinion, and covered the riverine habitat as well as interest features of the River Itchen csac/sssi. The study used a combined indicator method (a biotic method, where specific indicator species are used to quantify changes) and an ecosystem approach (a biotic and abiotic method, where integrated assessments of various influences were combined to understand overall habitat characteristics). 15 Now repealed and replaced firstly by Reg. 63 of the Conservation of Habitats and Species Regulations, also now repealed, and currently by Reg. 65 of the Habitats Regulations. 45

46 146. Five component studies were used: Hydrogeological, hydrological and water resource studies; ecology and fisheries studies; land use and land management studies; river flow regime studies; and, water quality studies. The river, although acknowledged as a continuum, was divided into 6 management units (MU1 to MU6) to ease reporting, assessment and management; the three headwater streams occupied one each, and the main river itself was split into three an upper, middle and lower Findings indicated that low flows had a considerable impact on site condition, with public water supply deficit during dry summers causing flows 25% lower than naturalised flows for the month of September. In the Candover Stream and the Itchen below Otterbourne, abstractions were deemed to cause a 35% reduction below the naturalised September flows. The Otterbourne surface abstraction was deemed to impact 7 km of river channel until meeting the discharge of the Chickenhall STW, where flows were topped up with treated effluent Of the interest features, salmon were determined to be one of the most affected, as numbers had been reduced over the decade preceding the study. This was linked to lowered habitat suitability and entry to the river, due to the reduced summer flows, and siltation and eutrophication effects. The Ranunculus community and invertebrate community were both shown to decline in low flow years, with marked reductions in abundance and changes in assemblage. Invertebrate recovery was said to be rapid when flows returned to normal, although salmon and other fish may experience impacts of reduced prey over several years, and therefore take longer to recover, due to their life-cycle, which is also dependent on off-site pressures Prolonged dry periods were shown to have a more significant impact than more severe but shorter term droughts, with overall ecosystem functioning suffering during a period of 3 successive dry summers preceding the study, where the Ranunculus habitat cycle took longer to recover and salmon populations failed to recover. The macroinvertebrate community, including three River Itchen csac relevant taxa Baetidae (olive mayfly), Ephemerellidae (blue-winged olive mayfly) and Garmmaridae (freshwater shrimp), had substantially reduced abundance caused by the historic abstraction regime, with particular impacts during low flow periods The study conclusions suggested that the abstraction and discharge regimes were having a serious deleterious effect on three interest features (salmon, invertebrates and Ranunculus habitat). Consequently, recommendations were given for an interim strategy for sustainable water management, by using minimum acceptable flows defined in the study and English Nature s recommended flow criteria. Target flows were developed for each of the six management units, in combination with the RoC Stage 3 assessment, and were based on best available science with a 1 in 30 dry year level of risk, to prevent serious deviations from naturalised flows. 46

47 Review of consents stage 2 - test for likely significant effect 151. In stage 1 of its Review of Consents affecting the River Itchen SAC the totality of relevant permissions (some 6,350) were identified and these were then assessed, individually and in combination with each other for likely significant effect on the SAC. Some 210 of these permissions were considered to have such an effect, and they were passed to stage 3 for the more rigorous consideration of appropriate assessment. Of this number, 48 were water abstraction licences. Review of consents stage 3 - appropriate assessment 152. Stage 3 of the RoC on the Itchen was conducted through the RISS, with the shared data/information used to inform the appropriate assessment. However, the objectives and final outputs of each are distinctly different: the RISS ultimately concluded with a draft Sustainable Management Strategy for the River Itchen (unrelated to the RoC), and the RoC outcomes were the EA s decisions alone, with Stage 3 using RISS scientific site-specific data to feed into appropriate assessments and Stage 4 of the RoC being a standalone determination of the licence conditions The water resources section of the appropriate assessment covered issues including: changes to water levels/table; changes in freshwater flows to estuary/velocity regime; changes in surface flooding; changes in salinity regime; reduced dilution capacity; land drainage; entrapment; and drought period water abstractions, local impacts on riverine habitats Functional Assessments provided the bulk of the scientific assessment. Four main considerations for the analysis of functional assessments were set out: in-combination testing; interest feature species and supporting habitats; typical species; and off-site impacts. The water resources functional assessment was performed on the 48 permissions (45 throughout the Itchen and 3 offsite), determined in Stage 2, including all consumptive abstractions, as well as larger abstractions such as watercress and fish farms The study methodology began by defining characteristic, naturalised river flows, based around a 30 year record ( ) and Q95 flows (low flows that 95% of the time are exceeded). The driest year in the record was 1992, having a minimum 30 year average of 384 Mld, and the driest month was September, with a 30 year average of 451 Mld. Following this, a target flow regime, based on ecological data and investigations, was developed to define a flow below which ecological damage occurs, but with an explicitly precautionary element to prevent damage before this limit is reached. Features examined to determine this included salmon (migration and entry), invertebrates and overall habitat availability. Likely adverse effects were determined for the following interest features: macrophyte habitat; southern damselfly; Atlantic salmon; and, white-clawed crayfish. 47

48 156. Salmonids were considered the most sensitive interest feature, so were deemed likely to provide the most precautionary target; this provided a framework for the low flow threshold, which was based on the fish migration model PHABSIM (physical habitat simulation area available), and invertebrate modelling. The salmon modelling (available for MU6 only), identified a low flow threshold of 270 Mld which, based on data from the lowest flow years, was considered to provide a precautionary margin before ecological damage occurs Habitat availability modelling (in MU5 and 6 only) highlighted a series of thresholds for reducing abstraction, with the lower limit at 260 Mld, whereby lower flows would cause unacceptable loss to habitat area Macroinvertebrate analysis showed the importance of longer-term flows, so 6-month antecedent flows were used which, based on the three characteristic taxa (Baetidae, Ephemerellidae, Gammaridae) and general community changes, allowed the use of a normalised flow threshold of 0.59 for each of the Itchen MUs; for comparison, this meant 6- montly mean flow thresholds of 277 Mld in MU5 and 284 Mld in MU6. A comparison of naturalised and historic flows over the period showed that abstractions appeared to cause flows to fall below the macroinvertebrate threshold on 4 occasions As the salmon and PHABSIM models did not cover MUs 1-4, it was determined that a precautionary application of the targets from the lower river should be applied to the upper river; in MU6 the 270 Mld threshold for salmon equated to about 25% reduction from the 1 in 30 year naturalised flows of 360 Mld, so this value was taken as the threshold and applied to the rest of the river MUs (except MU5, where the proportion was 27%) Seven public water supply licences failed the in-combination test: the three middle Itchen licences (Otterbourne GW (22.7/94); Otterbourne SW (22.6/93); Twyford GW (22.6/92)); Gaters Mill SW (22.10/134) in the lower Itchen; Easton (22.4/80) in the upper Itchen; and Totford GW (22.3/55) on the Candover Stream. The seventh licence is Lasham GW (28/39/30/0273), which was determined to have an in-combination failure due to a cone of depression from groundwater abstraction An additional three licences were linked to these in having effects on river flows: the Candover and Arle Augmentation Schemes, groundwater abstractions designed to augment river flows during low flow conditions; and, Fobdown watercress farm, which abstracts from groundwater and discharges back into the river. Candover was noted as particularly damaging for the white-clawed crayfish interest feature, where the cone of depression (in combination with Lasham and Totford) may cause low flows if there were two or more consecutive dry years, and the use of the scheme may lead to habitat loss, displacement of individuals into unsuitable downstream habitats and cooling of water temperatures affecting juvenile growth. 48

49 Review of consents stage 4 - actions 162. Stage 4 of the RoC led to the production of a Site Action Plan (SAP) for each site, which aimed to appraise options and make decisions on licences based on the information obtained during Stage 3, with any additional study information included. The Itchen Water Resources SAP was comprised of 3 parts: A Summary of current site knowledge; B Environmental Outcomes; C Options appraisal The principal outcome of the RoC process (of relevance to these appeals) was the need to either affirm or modify the licences that had been assessed. Licences were either affirmed or modified so that the highest resulting risk from the flow regime would be low, avoiding the need for mitigation, which would be required in the event of any high risk options. This process involved review of all documents from RISS and RoC Stage 3; consultations with key participants, including NE; refinements to the salmon entry model; more comprehensive invertebrate assessments and revision of target regimes; new lower river target regime from combined invertebrate/salmon model outputs; and further assessment of the EA augmentations. The most significant change from Stage 3 was the reassessment of the target flow regime; the EA determined that factoring the target flows from the lower river back up the catchment was not sufficiently robust A further notable addition at this stage was the improved assessment of macroinvertebrates across the entire river, on the basis that invertebrate status is a good indicator of the integrity of the river at any given point (acting as a proxy for habitat health). This approach used the LIFE (Lotic-invertebrate Index for Flow Evaluation) method and showed that community assemblages, and particularly abundance of typical chalk taxa, were significantly related to antecedent flow, most notably previous summer Q95 flows, and that these responses were consistent throughout the length of the river. These findings revealed that a precautionary equivalent flow regime of 237 Mld in MU5 was necessary for protecting the macroinvertebrate community This new macroinvertebrate flow regime was reassessed against the salmon entry models to test if it was suitable for protecting the salmon interest feature. One criterion was not met, so it was deemed necessary that further reductions to licenced abstractions were required in June and July to protect returning salmon. The new regime was also reassessed against the PHABSIM model, after a request by NE, and it was deemed to also improve the habitat availability situation. NE condition targets for flow regime that were applicable at that time (based on the approach prior to the 2015 revisions to CSMG) were referred to in Stage 4, but not used because the EA believed that its Stage 4 targets were more robust. However, the NE targets are referred to as an option for each licence, to assess the likelihood of meeting these targets The main conclusion of this work was that the Southern Water abstraction licences at Otterbourne and Twyford needed to be lowered and aggregated. The aggregate annual licence was reduced minimally, but there were proposed restrictions during summer months 49

50 (June-September), and a Hands-off-Flow (HoF) of 198 Mld proposed. A similar reduction was placed on the Portsmouth Water abstraction at Gaters Mill, but with a HoF of 194 Mld, taking account of the flow reduction from upstream abstractions. The overall Sustainability Reductions were estimated at 70 Mld for Southern Water and 15 Mld for Portsmouth Water The augmentation scheme licences on the Candover and the Arle were to be modified to restrict their use so as not to damage interest features, with the possibility of use only to support flows during low summer flows once HoFs had been met in the lower river Had the assessment been based on the NE flow targets applicable at that time, a reduction of abstraction by about 200 Mld, to achieve less than 10-15% reductions in naturalised flows, would have been necessary. Natural England s understanding of the EA s derivation of Hands-off-Flow levels 169. A fundamental component of the RoC assessment was the determination of flow thresholds and targets for the protection of the river habitat from reductions in flow during low flow periods. Considerable emphasis was therefore placed on the determination of Hands-off-Flows, the point at which public water supply abstractions must cease entirely to prevent adverse effects from occurring to the site. Of principal concern relating to this threshold was the impact of the three licences around Otterbourne, although the aim was to develop thresholds that could be applied throughout the river. This was undertaken, to an extent, in the RoC Stage 3 assessment of environmental impacts, with a threshold of 270 Mld (in MU5) determined on the basis of salmon, habitat and invertebrate modelling. The Site Action Plan in Stage 4 incorporated additional analyses, which ultimately led to the acceptance of a HoF of 198 Mld The incorporation of the accepted HoF at 198 Mld was based on a new assessment of invertebrate data, followed by target thresholds being set out; the process for defining this is documented in the EA s RoC Stage 4 Appendix A, B and C, but a summary is as follows: Appendix A contains invertebrate data analysis of the dataset provided during the RISS, with more detailed assessments of antecedent flow impacts on the overall invertebrate community, as well as characteristic chalk invertebrate taxa. Using LIFE scores and regression analysis the most significant relationships were found to be associated with Q95 flows from the previous summer, consistently throughout the length of the river and across the selected management units. The analysis shows that there were significant shifts in invertebrate community assemblage at some point between (equivalent of Mld) standardised flow units below the long-term average previous summer Q95, with loss of characteristic chalk stream invertebrates (Baetidae olive mayfly; Gammaridae freshwater shrimp; and, Ephemerellidae (blue-winged olive mayfly), and therefore a shift away from the characteristic chalk stream invertebrate community, occurring somewhere between this range. 50

51 Analysis using the national EA RIVPACS-LIFE assessment method determined a flow threshold of standardised flow units (222 Mld equivalent), showing the sensitivities of chalk assemblages and necessity to perform more robust local data analyses. The study also suggested target flow ranges with associated 95% confidence intervals (upper and lower limits associated with statistical uncertainties), thought to be representative of flow stress to the invertebrate community and wider chalk habitat. Recommendations were also given to examine flow frequency, duration and extent in thresholds. These suggestions were used to determine target thresholds in Appendix B Appendix B sets out a target flow regime for the river, based predominantly on the findings of the new macroinvertebrate assessment. An approach was developed using a risk based flow warning band, where invertebrate communities above this band are considered in good condition, but progression through the band indicates progressively more significant flow induced changes to community structure, up to a particular lower threshold, where serious community assemblage damage is highly likely. After discussion, the EA decided to use the upper threshold to develop a range of flow targets around. Three targets were proposed: Long-term average summer Q95 must exceed the upper 95% confidence interval of the target (equivalent to above the flow warning band). This equates to 262 Mld in MU River flow should not fall below the lower confidence interval for the target (equivalent to 0.719). This equates to 198 Mld in MU Annual summer Q95 should not drop below the average target in more than 1:6 years (MU3-5) and more than 1:5 years (MU 1-2 and 6). This equates to 237 Mld in MU Appendix C uses the targets derived in Appendix B to determine appropriate thresholds for use in the licence modifications. After analysis of the new threshold targets against historic gauged flows and the use of flow duration curves, it was decided that a Hands-off-Flow, whereby all abstractions cease to protect the interest features, should be based on target 2, the lower confidence interval, equating to 198 Mld in MU5. These were then incorporated into the proposed licence changes as the precautionary risk-based HoF thresholds. Natural England s views on the RISS and RoC 171. The RISS and RoC studies are now seen as being somewhat out of date, with knowledge, understanding and operational target development having advanced since. Nevertheless, at the time the studies presented original, and in some aspects cutting edge, understanding of abstraction impacts on flows and key biotic responses to reduced flows. 51

52 The following section presents a summary of NE s advice during the RoC process, and a brief summary of NE s current views on the approach to the RoC. The organizational transition from English Nature to Natural England occurred during this period, and for convenience the organisation is simply referred to as NE During the RoC, NE raised concerns that the derivation of flow thresholds presented by the EA did not seem to sufficiently protect the low flow situations, and were therefore not precautionary enough. This was particularly noted regarding the proposed 27% reduction in flows from abstraction in MU5, with NE stating that this was not congruous with site conservation objectives. These concerns were further reinforced by lack of transparency of flow threshold setting, in particular the PHABSIM and invertebrate work during the Stage 3 process. However, additional information and discussion produced some clarifications on the setting of flow thresholds, which strengthened NE s support for the EA s methods, but did not detract from the fact that thresholds still mostly exceeded the levels necessary for reaching conservation objectives as presented by NE NE raised concerns relating to habitat reductions presented in the PHABSIM modelling, used to derive flow criteria, in particular that the reduction in MU6 (20%) was too large, and that the threshold here should be revised to ~350 Mld. Also, concerns were raised that only MU5 and 6 had the assessments performed Concerns were also raised by NE about the use of impact assessment targeting only the low-flow effects of abstraction, and not considering the impact of abstraction on the entirety of the flow regime profile (e.g. what are the impacts at moderate and high flows) A large issue raised by NE related to the lower Itchen catchment being heavily geomorphologically modified, and that any flow targets could not be easily translated further upstream. NE advised at the time that if this were to happen, the most precautionary flow criteria work (based on the PHABSIM model), should be translated as a percentage to the upstream. The use of the LIFE invertebrate work on the entire river was agreed as being the better method for setting whole river targets Related to the issue of only tackling low flows, NE advised that the statement if an abstraction licence fails the low flow threshold, it will also fail the higher flow thresholds as well was not necessarily true, as a HoF condition may protect low flows, but not high flows, which may still in combination fail. NE advised the EA needed to clarify this position The invertebrate work using the 6-monthly mean data during the Stage 3 work was flagged by NE as potentially flawed, as issues in presenting linear collected data on a threshold set to a logarithmic abundance category would cause only large deviations under especially dry years to be shown as adversely affecting the integrity of the site. At 52

53 the time NE advised this was not a precautionary threshold. EA discussions at the time meant that reassessment was needed to come to a scientifically robust, but linear method of flow determination, and therefore more sensitive flow target setting. The outcomes of this were the reassessment of invertebrate data in Stage 4, but at the time NE advised the invertebrate threshold was not sensitive enough The salmon entry probability flow threshold was advised by NE not to be precautionary enough, as 10% flow decreases seen in the low flow year of 1992 (where losses were already observed) would cause further damage to the salmon population. NE advised that a low flow threshold that was at least 10% higher in entry probability than the 1992 situation should be adopted as a precautionary criteria. The EA clarified that in fact these flows were protected, but we advised the EA should revise the assessment to provide updated figures The early assessments in Stage 3 identified flow thresholds that would deem a 30% reduction in the whole river naturalised Q95 as not adversely affecting the integrity of the site. NE advised that certain thresholds in earlier assessments were certainly not precautionary enough to determine no adverse effect NE advised that the technical uncertainty in some areas (plant community responses, flow-habitat relationships for heavily modified reaches after restoration, and effects of flow regime on silt impacts) needed highlighting in an uncertainties section. The EA stated that that the use of multiple criteria for flow setting would provide a robust and evened out approach, although NE advised this was only if a precautionary approach was taken. At the time, the approach was heavily weighted to the salmon work, with habitat and invertebrate work needing more incorporation to flow setting NE still maintains that the RoC of was not precautionary enough to protect interest features and the overall chalk stream habitat The HoF determined in Stage 4 of the RoC was set at the lower confidence limit (0.719 of standardised flow units) of a chosen target that was the upper end of a range whereby adverse effects were possible (0.861). This HoF at Otterbourne was therefore set at 198 Mld (0.719 of 275 Mld the long term average Q95) According to the further macroinvertebrate study (Appendix A of Stage 4), adverse effects occur somewhere between below standardised flow units. Appendix B fails to recognise the importance of this range, stating that significant changes to the invertebrate community started to be observed at or below in fact, they could be happening anywhere between and If adverse effects are occurring between this range, irrespective of other target conditions proposed, the HoF should be set at the point that the community was observed to change. In the absence of this information (as in the Stage 4 RoC), the 53

54 precautionary approach would dictate the selection of the HoF threshold being at the upper end of this range. Therefore, under a precautionary approach, a HoF of 237 Mld should have been selected. Indeed, it could be said that the upper confidence limit of the target is appropriate on an entirely precautionary basis, giving a HoF of 262 Mld The selected flow warning band highlights that damage is likely occurring up to the point at which there is a definitive change in community structure. Therefore, we argue this is incorrectly used in the Stage 4 assessment, as an adverse effect (the definitive community change) may have already occurred half-way through this flow warning band (at 237 Mld) Therefore, not only is the HoF not selected as being precautionary enough (at 198 Mld instead of 237 Mld), but the incorrect placement of the flow warning band means damage is likely occurring much earlier than is stated, and potentially at any deviation below the naturalised flow regime. If a Review of Consents were being carried out now 173. The overall goal would be to determine, by appropriate assessment, levels of consent that can be certain not to have an adverse effect on the integrity of the SAC, having regard to its conservation objectives. Using Natural England s up to date methodological approach, the use of CSMG river flow targets would be advised as a means of protecting the underlying flow regime and therewith the interest features of the SAC and SSSI. Additionally, NE would wish for a detailed localised studies, including of invertebrates, to be undertaken NE s would advise the use of two protective components. Firstly, the application of long term CSMG river flow targets throughout the length of the River Itchen and Test (see Table 3 below for a lower river summary, taken from the locally agreed Test and Itchen CSMG Favourable Condition Targets (see appendix 4)). These targets would provide better protection for all flow conditions, scaled depending on the naturalised daily flow conditions, with progressively less available for abstraction under low flow conditions. However, because use of these targets would not cause abstraction to cease at very low flows, we would, secondly, advocate the use of a HoF as an additional protection at low flow. On the basis of the evidence available to the original RoC we would advise that the HoF be set at 237 Mld, which it is believed would ensure no adverse effect on integrity. However, data from the further detailed localized studies mentioned above would be fed into this analysis and might lead to review of this figure. Table 3 Summary of the agreed lower river CSMG targets for the Rivers Test and Itchen Agreed Favourable Condition Target LOW FLOWS LOW-MOD FLOWS MOD- HIGH FLOWS HIGH FLOWS (>Qn10) (<Qn95) (Qn95-50) (Qn50-10) CSM 10 CSM 15 CSM 20 CSM 10 54

55 NATURAL ENGLAND S ASSESSMENT OF THE CONDITION OF THE SITES River Itchen river channel units 175. The following is based on Natural England s most recent and published condition assessments for relevant units of the SSSIs. Please see Appendices 1d and 3d Unit 105 Candover Brook Unfavourable No Change: Based on EA water quality data for Water Framework Directive (WFD) monitoring (From 2011 to 2013), River Habitat Survey (RHS), Leafpacs macrophyte survey (July 2014), records centre data and anecdotal species records. Assessed against revised Common Standards Monitoring (CSM) targets Water quality: No data for BOD (Biochemical Oxygen Demand) but as meets target downstream, inferred compliance. Passes for DO (Dissolved Oxygen). Passes for un-ionised and total ammonia. Fails on Total Reactive Phosphate (growing season and annual mean). No data for Trophic Diatom Index (indicator of nutrient enrichment). No data on other pollutants. Some Diffuse Water Pollution Plan actions under way, together with recent changes to watercress farms and fish farm operations via EA permitting, although many actions still to be implemented. Fails on planform and on Habitat Modification Score full assessment of all units, and suggested remedial actions, contained within the Test and Itchen River Restoration Strategy (RRS). Passes on bank vegetation and riparian vegetation (structure and diversity) in RHS transect some banks fenced off, separating fishery from pasture. No significant areas of woody debris. In-channel structures not found in RHS transect and relatively few throughout unit see RRS for further detail. No silt found in RHS transect, but known to be an issue on other areas of the unit see RRS. No non-native invasive species found in RHS transect. Fails on macrophyte diversity. Passes on aquatic macroinvertebrate diversity and abundance. No signs of habitat exploitation or excessive weed cutting. Wild trout fishery so unstocked. Fails flow targets as Restoring Sustainable Abstraction (RSA) actions, required under Review of Consents (RoC) not yet implemented work ongoing with abstractors and EA. Water voles present in low numbers due to gravel/chalk nature of banks. Abundant signs of otter often reported by fisheries. Bullhead widespread. Brook lamprey lacking data as not routinely sampled by EA, but sometimes caught in WFD surveys. Salmon not currently present as headwater. Native crayfish restricted to fragmented population albeit highest density on the Itchen (many hundreds of individuals found at several locations in area) highly at risk from crayfish plague or other diseases. Action required captive rearing and breeding underway together with habitat improvements Reasons for adverse condition include: Freshwater Water Abstraction Freshwater Inappropriate Water levels Freshwater Pollution Water Pollution Agriculture/Runoff 55

56 Freshwater Pollution Water Pollution Discharge 177. Unit 142 River Arle Unfavourable No Change: The lower part of the Arle, prior to flowing into Unit 106, also has the confluence with the Candover Brook (Unit 105) and the Cheriton Stream (Unit 143), therefore contains a small section of the main River Itchen with combined flows from all tributaries Based on EA water quality data for Water Framework Directive (WFD) monitoring (From 2011 to 2013), River Habitat Survey (RHS), Leafpacs macrophyte survey (July 2014), records centre data and anecdotal species records. Assessed against revised Common Standards Monitoring (CSM) targets Water quality: No data for BOD (Biochemical Oxygen Demand) but as meets target downstream, inferred compliance. Passes for DO (Dissolved Oxygen), un-ionised and total ammonia. Fails on Total Reactive Phosphorous (growing season and annual mean). No data for Trophic Diatom Index (indicator of nutrient enrichment). Some Diffuse Water Pollution Plan actions under way, together with recent changes to watercress farms and fish farm operations via EA permitting, although actions still to be implemented. Fails on planform and on Habitat Modification Score full assessment of all units, and suggested remedial actions, contained within the Test and Itchen River Restoration Strategy (RRS). Fails on bank vegetation and riparian vegetation (structure and diversity) neglect and fishery management. No significant areas of woody debris. In-channel structures not found in RHS transect but known to be present on this unit, causing localised impoundment ad barriers to fish passage see RRS. No silt found in RHS transect, but known to be an issue on other areas of the unit see RRS. Non-native invasive species monkey flower (Mimulus) found in RHS transect, but orange balsam also known from this reach and distribution likely to be increasing as so far unmonitored. Possible signal crayfish sightings, posing further risk to native crayfish population. Fails on macrophyte diversity. Passes on aquatic macroinvertebrate diversity and abundance. Few signs of habitat exploitation or excessive weed cutting. Some stocking of fish carried out but rates have declined and previous assessment concluded no impacts on native fish populations or habitat. Fails flow targets as Restoring Sustainable Abstraction (RSA) actions, required under Review of Consents (RoC) not yet implemented work ongoing with abstractors and EA. Water voles present in good numbers throughout the unit. Abundant signs of otter often reported by fisheries. Bullhead widespread. Brook lamprey lacking data as not routinely sampled by EA, but regularly found at Arle Mill. Salmon not currently present as headwater. Native crayfish restricted to fragmented population (probably numbering several hundred) highly at risk from crayfish plague or other diseases. Action required captive rearing and breeding underway together with habitat improvements. 56

57 Reasons for adverse condition include: Freshwater Water Abstraction Freshwater Inappropriate Water levels Freshwater Siltation Freshwater Inappropriate Weirs, Dams and Other Structures Freshwater Pollution Water Pollution Agriculture/Runoff Freshwater Pollution Water Pollution Discharge Agriculture Inappropriate Cutting/Mowing 178. Unit 106 Upper Itchen (Itchen Stoke to Easton) Unfavourable No Change: Based on EA water quality data for Water Framework Directive (WFD) monitoring (From 2011 to 2013), River Habitat Survey (RHS), Leafpacs macrophyte survey (July 2014), records centre data and anecdotal species records. Assessed against revised Common Standards Monitoring (CSM) targets Water quality: No data for BOD (Biochemical Oxygen Demand) but as meets it downstream, inferred compliance. Marginal failure for DO (Dissolved Oxygen). Passes for un-ionised and total ammonia. Fails on Total Reactive Phosphorous (growing season and annual mean). No data for Trophic Diatom Index (indicator of nutrient enrichment). Fails on other pollutants due to presence of tributyl tin although source of this is unknown, and more likely in lower reaches. Some Diffuse Water Pollution Plan actions under way, together with recent changes to watercress farms and fish farm operations via EA permitting, although many actions still to be implemented. Fails on planform and on Habitat Modification Score full assessment of all units, and suggested remedial actions, contained within the Test and Itchen River Restoration Strategy. Some works carried out so far, including Chilland, but not enough to change overall geomorphological condition. Passes on riparian vegetation, fails on bank vegetation in RHS transect largely natural on this unit, with some banks fenced off, separating fishery from pasture. Some areas excessively shaded by scrub. No significant areas of woody debris. Structures found in RHS transect see RRS. No silt found in RHS transect, but known to be an issue on other areas of the unit see RRS. Non-native invasive species monkey flower (Mimulus) and orange balsam found in RHS transect, the latter is increasing in distribution. Detailed investigation of impacts and extent required. Fails on macrophyte diversity. Passes on aquatic macroinvertebrate diversity and abundance. No signs of exploitation or excessive weed cutting. Some stocking of fish carried out, but EA report (2007) based on electrofishing data indicated no impacts. All fish stocked from 2015 onwards are triploid female fish. Changes to stocking regulation will ensure current stocking levels do not increase. Historically, stocking has decreased rapidly over the last few years. Fails flow targets as Restoring Sustainable Abstraction (RSA) actions, required under Review of Consents (RoC) not yet implemented work ongoing with abstractors and EA. Water voles abundant and widespread. Abundant signs of otter often reported by fisheries. Bullhead widespread. Brook lamprey lacking data but often caught in EA WFD surveys. Salmon population at risk egg production and returning 57

58 stock targets not met. Exact reasons unknown, but likely due to degraded habitat (including siltation of spawning gravels), fish passage impeded and impacts in the marine environment. RRS and DWPP should address main reasons. No crayfish found on this unit, but some reaches may be suitable. Population would have been found throughout most of the river before the plague struck Reasons for adverse condition include: Freshwater Water Abstraction Freshwater Inappropriate Water levels Freshwater Siltation Freshwater Invasive Freshwater Species Freshwater Inappropriate Weirs, Dams and Other Structures Freshwater Pollution Water Pollution Agriculture/Runoff Freshwater Pollution Water Pollution Discharge Lack of Corrective Works Inappropriate Scrub Control 179. Unit 107 Middle Itchen (Easton to Highbridge) Unfavourable No Change: Based on EA water quality data for Water Framework Directive (WFD) monitoring (From 2011 to 2013), River Habitat Survey (RHS), Leafpacs macrophyte survey (July 2014), records centre data and anecdotal species records. Assessed against revised Common Standards Monitoring (CSM) targets Water quality: Passes for BOD (Biochemical Oxygen Demand), DO (Dissolved Oxygen), un-ionised and total ammonia. Fails on Total Reactive Phosphorous (growing season and annual mean). Fails on Trophic Diatom Index (indicator of nutrient enrichment). Some Diffuse Water Pollution Plan actions under way, although many actions still to be implemented. Fails on planform and on Habitat Modification Score full assessment of all unit, and suggested remedial actions, contained within the Test and Itchen River Restoration Strategy. Passes on riparian vegetation, fails on bank vegetation in RHS transect large areas unfenced but with some cattle poaching. Other areas completely unmanaged. No significant areas of woody debris. Many structures present, some linked with water meadow use and the Itchen Navigation see RRS. Some signs of siltation found in RHS transects, but known to be an issue on other areas of the unit see RRS. Non-native invasive species monkey flower (Mimulus) and orange balsam found in RHS transect, the latter is increasing in distribution. Detailed investigation of impacts and extent required. Fails on macrophyte diversity. Passes on aquatic macroinvertebrate diversity and abundance. No signs of exploitation or excessive weed cutting. Some stocking of fish carried out but EA report (2007) based on electrofishing data indicated no impacts. All fish stocked from 2015 onwards are triploid female fish. Changes to stocking regulation will ensure current stocking levels do not increase. Historically, stocking has decreased rapidly over the last few years. Fails flow targets as Restoring Sustainable Abstraction (RSA) actions, required under Review of Consents (RoC) not yet implemented work ongoing with water company and Environment Agency. Water 58

59 voles abundant and widespread. Abundant signs of otter often reported by fisheries. Bullhead widespread. Brook lamprey lacking data as not routinely sampled by EA, but often caught in WFD surveys. Salmon population at risk egg production and returning stock targets not met. Exact reasons unknown, but likely due to degraded habitat (including siltation of spawning gravels), fish passage impeded and impacts in the marine environment. RRS and DWPP should address main reasons. No crayfish found on this unit, but some reaches may be suitable. Population would have been found throughout most of the river before the plague struck Reasons for adverse condition include: Freshwater Water Abstraction Freshwater Inappropriate Water levels Freshwater Siltation Freshwater Invasive Freshwater Species Freshwater Inappropriate Weirs, Dams and Other Structures Freshwater Pollution Water Pollution Agriculture/Runoff Freshwater Pollution Water Pollution Discharge Lack of Corrective Works Inappropriate Scrub Control Lack of Corrective Works Inappropriate Weed Control 180. Unit 108 Lower Itchen (Highbridge to Wood Mill) Unfavourable No Change: Based on EA water quality data for Water Framework Directive (WFD) monitoring (From 2011 to 2013), River Habitat Survey (RHS), Leafpacs macrophyte survey (July 2014), records centre data and anecdotal species records. Assessed against revised Common Standards Monitoring (CSM) targets Unit had three RHS transects due to length and braided nature. Water quality: Passes for BOD (Biochemical Oxygen Demand), DO (Dissolved Oxygen), un-ionised and total ammonia. Fails on Total Reactive Phosphorous (growing season and annual mean). Fails on Trophic Diatom Index (indicator of nutrient enrichment). Some Diffuse Water Pollution Plan actions under way, although many actions still to be implemented. Fails on planform and on Habitat Modification Score full assessment of all unit, and suggested remedial actions, contained within the Test and Itchen River Restoration Strategy (RRS). Some channel narrowing and bank works have been carried out as part of RRS, but not enough to alter geomorphological condition. Passes on riparian vegetation, fails on bank vegetation (structure and diversity) in RHS transect large areas unfenced but with some cattle poaching. Others managed for fisheries or completely unmanaged. No significant areas of woody debris. Many in-channel structures present, some linked with water meadow use and the Itchen Navigation see RRS. No signs of siltation found in RHS transects, but known to be an issue on other areas of the unit see RRS. Nonnative invasive species monkey flower (Mimulus) and Himalayan balsam found in RHS transect. Detailed investigation of impacts and extent required. Fails on 59

60 macrophyte diversity. Passes on aquatic macroinvertebrate diversity and abundance. No signs of habitat exploitation or excessive weed cutting. Some stocking of fish carried out but EA report (2007) based on electrofishing data indicated no impacts. All fish stocked from 2015 onwards are triploid female fish. Changes to stocking regulation will ensure current stocking levels do not increase. Historically, stocking has decreased rapidly over the last few years. Fails flow targets as Restoring Sustainable Abstraction (RSA) actions, required under Review of Consents (RoC) not yet implemented work ongoing with water company and Environment Agency. Water voles abundant and widespread. Abundant signs of otter often reported by fisheries. Bullhead widespread. Brook lamprey lacking data as not routinely sampled by EA but often caught in WFD surveys. Salmon population at risk egg production and returning stock targets not met. Exact reasons unknown, but likely due to degraded habitat (including siltation of spawning gravels), fish passage impeded and impacts in the marine environment. RRS and DWPP should address main reasons. No crayfish found on this unit, but some reaches may be suitable. Population would have been found throughout most of the river before the plague struck Reasons for adverse condtion include: Freshwater Water Abstraction Freshwater Inappropriate Water levels Freshwater Siltation Freshwater Invasive Freshwater Species Freshwater Inappropriate Weirs, Dams abnd Other Structures Freshwater Pollution Water Pollution Agriculture/Runoff Freshwater Pollution Water Pollution Discharge River Itchen SSSI Terrestrial wetland units: 181. Unit 83 Manor Farm Twyford Moors Unfavourable Recovering (below Otterbourne): Too dry, but could be down to exceptionally dry spring. Cover of common ragwort and thistles too high - control agreed through HLS. Failed on positive indicators, but from previous assessmnts would appear not to be spp-rich. Sward height borderline - could be due to overgrazing or to dry spring. Scrub over ditches too high - amendment under HLS to sort 182. Unit 9 Unfavourable Recovering (Candover Stream): ISA carried out during June 2012 but discussions surrounding water levels took place after this. A good selection of positive indicator species were found, only narrowly missing out on the target in the FCT. The sward height was patchy, although on average was too high, as it was not being grazed. A thatch was also starting to build up. 60

61 Site is in HLS but difficult season last year prevented necessary grazing regime being put in place and capital works (fencing, scrub removal, ditch restoration) being completed. WLMP suggested measures to re-wet the site but deemed impractical and with possible adverse impacts on Candover Stream. Ditch restoration may help re-wet the site to a degree Reasons for adverse condition include: River Test Freshwater Inappropriate Water levels Agriculture Overgrazing Agriculture Inappropriate stock-feeding Lack of corrective works Inappropriate scrub control 183. Unit 91 Romsey to Estuary Unfavourable No Change: The unit did not comply with the flow targets. The unit met the water quality targets covering the biological and chemical GQA classes, ammonia and phosphate limits and suspended solids. The unit did not comply with the river profile or river planform targets. The unit complied with the riparian zone target but failed the river bank vegetation target. The unit complied with the species composition target for chalk rivers. The unit failed the target for presence of both non-native plant and fish species. The unit had the following species of interest present: otters, water voles, brook lamprey, bullhead and salmon Reasons for adverse condition include: Freshwater Water Abstraction Freshwater Inappropriate Water levels Freshwater Siltation Freshwater Inappropriate Weirs, Dams and Other Structures Freshwater Invasive Freshwater Species Freshwater Pollution Water Pollution Agriculture/Runoff Freshwater Pollution Water Pollution Discharge Agriculture Inappropriate Cutting/Mowing 61

62 Map 2 Site condition map of the upper Itchen The Candover Stream runs N/S, centrally. The SAC is shown in pink. For terrestrial units dark green is favourable, light green is unfavourable recovering, orange is unfavourable no change and red is unfavourable declining. Due to the scale of the river channel units presented on these maps, a visual representation of condition status is not possible. However, all channel units are in Unfavourable no change status. 62

63 Map 3 - Site condition map of the middle Itchen. The Otterbourne abstraction point is denoted by the blue dot. For terrestrial units dark green is favourable, light green is unfavourable recovering, orange is unfavourable no change and red is unfavourable declining. Due to the scale of the river channel units presented on these maps, a visual representation of condition status is not possible. However, all channel units are in Unfavourable no change status. 63

64 THE THREE RIVER ITCHEN ABSTRACTION LICENCES 184. A conclusion of the EA s 2005 EA Review of Consents (RoC) on the River Itchen SAC was that Southern Water s abstraction licences were to be reduced in total volume, with an additional proposed condition (a Hands-off-flow or HoF ) to stop abstraction if a critical river level was reached, to prevent an adverse effect on integrity of the River Itchen SAC at low flows. These proposals were known as sustainability reductions In October 2015, Southern Water submitted a voluntary proposal to implement the RoC reductions at Otterbourne in part immediately, but delaying the HoF and some of the annual reduction until 2018, when they anticipated being able to source further water from elsewhere, as described by two schemes identified in their published Water Resources Management Plan 14 (WRMP14). The two schemes were: 1) increasing water abstraction from the R. Test at Testwood and piping it to Otterbourne for treatment; and 2) use of the EA s Candover augmentation scheme emergency licence and a pipeline to move water from the upper Itchen to the middle Itchen to top up river flow to prevent HoF failure at Otterbourne and allow unabated abstraction during drought. Despite NE concern, as both schemes had ongoing investigations into designated sites impacts, the plan was published with both schemes described as active from 2019, with no proposed alternatives Defra noted that the operations to replace the licence reductions by 2018 were not certain and that there was a risk to the integrity of the SAC. The parties therefore began to discuss questions of IROPI, alternatives and compensatory measures, as required by the Habitats Regulations (collectively the IROPI negotiations ). However, the availability of statutory mechanisms to control demand led Defra to the conclusion that issues of IROPI did not arise before those mechanisms were to be deployed In December 2016 the EA imposed a compulsory licence change on the Otterbourne licences which included all the requirements of the RoC. These changes would be effective immediately and have been appealed. In summary, the proposed licence changes are to:- Aggregate and reduce the total annual abstraction of the three licences (from 55,138 Mly to 42,000 Mly; Reduce abstraction quantities during June (4,110 Ml), July (3,940 Ml), August (3,445 Ml) and September (2,280 Ml); Include a Hands-off-Flow condition to cease abstraction when flows drop to 198 Mld at the Allbrook and Highbridge gauging station Natural England formally responded to the middle Itchen licence changes in December Appendix 7. Natural England s position remains unchanged from this consultation response, although we now believe that the outcome could have been more precautionary. A summary of our views is as follows: 64

65 The RoC appropriate assessment could not conclude that, un-modified, these licences have no adverse effect upon the integrity of the SAC, having regard to its conservation objectives. Indeed, this can be put more strongly: NE believes that licenced abstraction is having an adverse effect on the integrity of the SAC; NE therefore agrees that the licences need to be modified to a level that allows it to be concluded that abstraction will not have an adverse effect on the integrity of the SAC; Understandings of river ecology and condition status have moved on since the RoC was carried out in and NE believes that the strong evidence base underpinning the RoC ought now to be interpreted in a more precautionary way, in particular with reference to the establishment of HoF levels. 65

66 CANDOVER 189. The Candover augmentation scheme is a groundwater abstraction owned and operated by the EA on the Candover Stream, a tributary of the River Itchen. This suite of boreholes pumps water out of the chalk aquifer and into the Candover Stream channel at the top of the Itchen catchment, boosting flows to enable abstraction at Otterbourne to continue. Originally this licence was intended to support low flows during droughts, but has only been used 4 times since the 1970s, with a test pump in 2011 to examine impacts on native white-clawed crayfish (a qualifying SAC feature) and as a potential water resource The EA seeks to reduce its licence significantly, imposing additional conditions to protect crayfish and flows. The conditions render the licence effectively useless for public water supply. The reductions were introduced after the pump test showed that discharge of the abstracted water caused the crayfish population to alter their breeding behaviour - a significant adverse effect Furthermore, this licence, in-combination with the effects of groundwater depression from two other local groundwater abstractions (Totford, Southern Water and Lasham, South East Water), also caused the failure of multiple standards (including those used in the RoC), leading to potential effects on SAC river flows, SSSI terrestrial wetlands and NERC priority habitats. Both of these licences are within the second draft of Water Industry National Environment Programme (WINEP2) for investigation of impacts In summary, the proposed licence changes are to:- Reduce licence limits to 5Mld from 27Mld, and to 750Mlyr from 3750Mlyr; Time-limit the licence to 31st December 2022; Add a new condition preventing re-use of the scheme for a period of at least 6 years, after it has been used Natural England has responded both informally and formally on numerous occasions relating to the Candover Augmentation Scheme use and licence changes. We agree with the EA determination, utilising additional information since RoC, that with further conditions (significantly reducing total licence volume, conditions to reduce frequency of operation, and time limiting the licence), the proposal will not have an adverse effect on the integrity of the SAC. As stated in our pre-application advice, NE remains of the opinion that this type of abstraction in the headwaters of a designated river valley, combined with river augmentation, is not an alternative to, nor is it a necessary part of a sustainable abstraction regime and is not necessary for the conservation of the designated sites NE did not agree with the determination conclusions of this licence made by the EA during the RoC. During the RoC, the impacts were not assessed against SSSI features, and 66

67 considerable changes in licences acting in combination in the upper Itchen have occurred since. The Candover licence is not compliant with all designated site requirements, as some were not assessed. Considerable additional information on the sustainability of the licence is now also available, which combined with condition assessments of localised units, indicates changes are needed NE supports the EA changes to improve environmental sustainability, and notes the licence to an extent addresses the following alone issues with the extant licence: Failure of rcsmg by a considerable degree from the augmented flows (flows above natural); Minimal failure at low flows after use; Impacts to native crayfish In regards to the in combination effects, NE notes the following: The voluntary revocation of Fobdown watercress farm augmentation has highlighted a masking of the impacts of the main abstractions on the Candover, although the abstraction at Fobdown was likely having a localised impact; In-combination with other licences (except Fobdown), there are very significant failures of rcsmg standards greater in extent, for greater periods and continuing after use. NE note that RoC flow targets also failed in combination without the Fobdown augmenting flows; It is clear abstractions at Totford and potentially Lasham are contributing more significantly to the failure of rcsmg low flows than the Candover licence, which principally impacts high flows; Consequently, NE is minded to advise that we agree with the EA proposal that the use of Candover is prohibited unless Totford is turned off, but with the caveat that the use of the Candover licence should be reviewed for in combination use and impacts with Totford and Lasham; this will ensure the adverse effect is not transferred from the Candover to elsewhere on the SAC The Candover valley (and the Itchen valley in general) has a number of wetlands ranging from wet woodlands, to fens, fen meadows and wet grassland. Many are included within the SSSI designation or in local designations, however most of these terrestrial wetlands are priority habitats for conservation of species and habitats under the Natural Environment and Rural Communities Act. There is limited information on the impacts of the Candover abstraction on these terrestrial wetlands (most of which are in unfavourable condition), but the scheme s drawdown can be up to 4m, with some areas directly below the 67

68 wetlands. Despite this limited data, there are peat-based wetlands within the Candover valley and numerous bird species that rely on wetlands have declined significantly in the valley. A range of factors (including abstractions) could be contributing to this decline, but there is no evidence to suggest abstraction is not a contributory factor. Consequently, in order to achieve a fully sustainable abstraction regime in the upper Itchen, it is necessary to gain the best possible understanding of impacts on nationally and internationally important biodiversity. NE recommended the EA consider Totford and Lasham as investigations under PR19, which is being progressed currently. In conclusion, Natural England concurs that it is not certain that an adverse effect on integrity of the River Itchen SAC from use of the Candover licence in combination with other licences can be avoided Natural England s consultation responses are at Appendix 7b. 68

69 TESTWOOD 199. Following its WRMP14, and in advance of building a water transfer pipeline from Testwood to Otterbourne, Southern Water submitted voluntary notice in 2016 to reduce the annual abstraction licence at Testwood on the River Test SSSI. It contained no HoF and allowed reversion to the previous full licence in dry weather, in order to allow extra water to be abstracted and piped to Otterbourne. Historic actual abstraction has been considerably below the extant licence and proposed licence limits, giving ostensible headroom for abstraction, except where needed to supply the River Itchen. This proposal was not determined by the EA In July 2017 the EA issued notice to reduce the Testwood licence to prevent deterioration of the water body, reduce the impacts on the SSSI and minimise effects on attractant flows into the estuary for migratory fish of the River Itchen SAC, which they believe (based on genetic and tagging evidence) are the same population as the River Test. This licence change would reduce abstraction to the upper end of historic recent actual quantities and but also imposes a stringent HoF to protect migratory fish In summary, the proposed licence changes are to:- Reduce the daily quantity to 80 Mld from 136 Mld; Reduce the annual quantity to 29,200 Mly from 49,915 Mly; Remove the current hands off flow condition of 91 Mld; Include a hands off flow condition which restricts abstraction when flows are at or below 355 Mld in the River Test measured as the sum of flow at Testwood Bridge, Test Back Carrier and Conagar Bridge until 31 March 2027; From 1 April 2027, include a hands off flow condition which restricts abstraction when flows measured as the sum of flow at Testwood Bridge, Test Back Carrier and Conagar Bridge are at or below 390 Mld in the months March to December and 355 Ml per day in the months January to February. From 1 April 2027, include a hands off flow condition which restricts abstraction when flows measured at Testwood Bridge are at or below 265 Mld in the months March to December and 233 Mld in the months January to February Natural England formally responded to the proposed Testwood licence change in August 2017 (Appendix 7c). A summary of our views is as follows: Overall, NE supports the EA proposal and concurs with the EA view that this provides significant flow resilience and environmental protection improvements for the habitat and migratory salmon population of the River Test SSSI. 69

70 NE also agrees with the reasoning that flow resilience contributes to protecting attractant flows in the upper estuary for the Salmon population of the River Itchen SSSI and SAC NE supports the EA in preventing deterioration of WFD status, which according to the EA may occur under the full extant licence (136 Mld with no HoF condition). NE agree with the final conclusion of the EA s Serious Damage Assessment, although we argue that there are impacts, albeit limited in scope, on key features of the river habitat (notably macrophytes and macroinvertebrates) The proposals under this licence change do not appear to fully meet the revised CSMG flow targets for reaches in the lower River Test SSSI. NE highlights the importance of a naturalised flow regime for achieving favourable condition and maintains that this is a necessary conservation objective for the River Test SSSI Natural England reserves the right to lead evidence concerning macrophytes and macroinvertebrates, but will not add to the Environment Agency s positions regarding salmon. 70

71 IROPI AND COMPENSATORY MEASURES 204. If it cannot be ascertained, by an appropriate assessment, that a plan or project will not have an adverse effect on a SAC the plan or project can only be allowed to proceed if Article 6(4) of the Habitats Directive is complied with. That is to say, if the plan or project must be carried out for imperative reasons of overriding public interest and there are no alternative solutions, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected Natural England s statutory role does not include the provision of advice on whether the needs for the abstraction proposals in these cases amount to IROPI. Similarly, Natural England does not advise on alternative measures such as demand-side controls. However, Natural England has a role in advising in situations where alternative measures may themselves have impact on Natura 2000 sites and on whether any proposed compensatory measures are adequate to ensure that the overall coherence of Natura 2000 is protected from harm Regulations 64 and 68 of the Habitats Regulations transpose Article 6(4), with Reg. 68 providing as follows: Compensatory measures 68 Where in accordance with regulation 64 (a) a plan or project is agreed to, notwithstanding a negative assessment of the implications for a European site, or (b) a decision, or a consent, permission or other authorisation, is affirmed on review, notwithstanding such an assessment, the appropriate authority must secure that any necessary compensatory measures are taken to ensure that the overall coherence of Natura 2000 is protected Southern Water s Grounds of Appeal against non-determination by the Environment Agency and Provisional Case: November 2017 clearly accept the need to provide compensation to mitigate impacts of excessive abstraction (para 60 of the former, para 25 g. of the latter). No details, or indications, of the nature of these measures are given There is EC 16 and DEFRA 17 guidance on issues surrounding IROPI, and the ECJ judgment in the case of Briels is relevant. Should specific proposals linked to these appeals 16 Managing Natura 2000 and Guidance document on Article 6(4) of the Habitats Directive 92/43/EEC January

72 arise Natural England will be in a position to consider them in light of the expertise of its officers and these sources of guidance and authority Nevertheless, it is noted at this point that necessary features of compensatory measures include: Compensation must be additional to the normal implementation of the Habitats Directive. Compensation must be specific to the harm caused by the plan or project, corresponding precisely to negative effects on the species or habitats concerned that have been identified by appropriate assessment. A site should not be irreversibly affected by a project until the compensation is actually in place, or at least secured. Compensation can include the creation or re-creation of a comparable habitat that, in time, can be designated as a European site or as an extension to an existing site. Measures for which there is no reasonable expectation of success should not be considered. If there is uncertainty about the success of the proposed measures, the compensation area might need to be larger than the area damaged. Habitats legislation should not be used to force applicants to over-compensate 210. In the first half of 2016 discussions took place between the Environment Agency, Southern Water and Natural England about measures needed to compensate for adverse effects on the integrity of the River Itchen SAC as a result of water abstraction occurring in the anticipated three year period before full implementation of Southern Water s proposals to augment flow in the river. In essence, what was discussed was an approach in 3 tiers, as follows: Tier 1: a package of measures to be implemented as soon as possible, designed to increase resilience within the River Itchen itself and including water quality improvements and bankside tree planting (to cool the river) Tier 2: the development of a River Restoration Package for a length of the River Meon comparable to the affected length of the River Itchen SAC. This plan would have to include the identification and specification of measures necessary to improve the conservation status and quality of the River Meon and the legal measures necessary to allow them to come into being Tier 3: the implementation of the River Meon River Restoration Package The River Meon is a relatively short chalk stream (21 miles) rising near the village of Meon in East Hampshire and flowing through the Downs to the Solent where it flows through 17 Habitats and Wild Birds Directives: guidance on the application of article 6(4) December

73 the marshes of Titchfield Haven. The River Meon is a biodiverse chalk stream with moderately good flora and fauna including water crowfoots, brown trout and a small Salmon population and has been designated as a Site of Interest for Nature Conservation (SINCs) by Hampshire County Council for the river habitat. The entire river is mapped as a priority for restoration of river habitat by Natural England as it has high potential for biodiversity improvement and is capable of becoming a priority river habitat Titchfield Haven SSSI, which is part of Solent and Southampton Waters SPA and Ramsar sites, is notified for its extensive transition coastal/floodplain grazing marsh that ranges from calcareous fen, fen meadow, brackish marsh to salt marsh communities supporting a flora and fauna now highly restricted in distribution in England. It is particularly important for its migratory wetland birds reflected in its inclusion as part of the Southampton Waters SPA and Ramsar site. The River Meon supplies the calcareous water that feed the freshwater input to the SSSI, SPA and Ramsar site communities Natural England s views about management for Titchfield Haven SSSI are generic views for habitats including rivers and streams, marshy grassland, floodplain fen and floodplain and coastal grazing marsh all of which have been described The triggers for implementation of the various tiers were discussed, with a view to linking them to future dry winters, and rough costings were produced. Natural England s understanding is that the three parties were in general accord over the potential viability of the 3-tier approach, but that nothing has subsequently been taken forward and the majority of the details of the work that it entails, and all of the legal agreements to allow it to take place, remain unresolved. DEFRA s view, given in the spring of 2016, that alternative measures were available to prevent harm to the integrity of the SAC, appears to have pushed further discussion of compensatory measures into abeyance For the avoidance of doubt, Natural England s position on the provision and adequacy of compensatory measures is as follows: Natural England is happy to resume the discussions that stalled in April Natural England considers that the proposed compensation involving the River Meon is potentially capable of compensating for adverse effects on the River Itchen, but that a great deal more work is needed in order to establish the viability of the Rier Meon as compensatory habitat Natural England views the practicalities of achieving actual compensation on the River Meon as complex and potentially time-consuming, in particular since none of the parties in question own necessary land. 73

74 In the meantime, it is not accurate to categorise the question of compensatory measures as having been agreed, still less to say that such measures are ready to be implemented. Map 4 River Meon 74