STATEMENT OF CASE SALMON AND TROUT CONSERVATION UK. and WWF

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1 IN THE MATTER OF THE WATER RESOURCES ACT 1991 AND THE ENVIRONMENT AGENCY S PROPOSED CHANGES TO FOUR ABSTRACTION LICENCES HELD BY SOUTHERN WATER AUTHORISING ABSTRACTION FROM THE RIVERS ITCHEN AND TEST, AND ONE ABSTRACTION LICENCE HELD BY ENVIRONMENT AGENCY AFFECTING THE CANDOVER STREAM PLANNING INSPECTORATE REFERENCES: RSA/WR/00016/17/18 STATEMENT OF CASE SALMON AND TROUT CONSERVATION UK and WWF Introduction 1. This statement is made by Salmon & Trout Conservation UK (S&TC UK) and WWF in relation to the Environment Agency s proposed changes to four abstraction licences held by Southern Water authorising abstraction from the rivers Itchen and Test and one abstraction licence held by the Environment Agency affecting the Candover stream. 2. This statement is supported by the Test and Itchen Association, which has been representing the interests of the riparian owners of the Test and Itchen and their tributaries for more than one hundred years. Although riparian owners are not required to be members of the Association, the great majority of them are. The Association currently has over one hundred and fifty riparian owner members who between them own more than 80% of the Test and Itchen. 3. This statement is also supported by the Upper Itchen Initiative, a recognised group of ten years standing concerned with the protection of the Upper Itchen river catchment and its tributaries. The group comprises of statutory bodies, riparian landowners (which include all the owners potentially affected by the Candover proposals) business interests and local stakeholders. 1

2 4. This statement is also supported by the Hampshire & Isle of Wight Wildlife Trust (registered charity number ), the leading nature conservation charity in Hampshire, with 27,000 members and 900 volunteers. The Trust is part of the UK-wide partnership of 47 Wildlife Trusts with a collective membership of more than 800,000 people. 5. This statement is also supported by the Wessex Chalkstream and Rivers Trust, a charity dedicated to the guardianship and protection of the rivers of the Wessex Region from the Dorset Stour in the west to the Meon in the east. 6. This statement is also supported by the Wild Trout Trust, a charity working across Britain and Ireland to promote the conservation of wild trout and their habitats, ecosystems and environment. 7. The statement is also supported by the Test Salmon Group, Chalk Stream Fishing Limited (company number SC354250), The Piscatorial Society, Mr. Andrew Impey, Mr. Simon Ffennell, Mr. Zam Baring, Mr. Mark Baring and Mr. Roger Harrison, all having interests in the fishing rights on the Itchen or Test, or being riparian landowners. Background 8. S&TC UK is a charity registered with the Charity Commission for England and Wales (Registration No ). It is also a company limited by guarantee registered in England and Wales (Registration No ). 9. S&TC UK was established as the Salmon & Trout Association in 1903 to address the damage done to UK rivers by the polluting effects of the Industrial Revolution. Since then, S&TC UK has worked to protect fisheries, fish stocks and the wider aquatic environment for the public benefit. S&TC UK has charitable status in both England and Scotland (as S&TC Scotland) and its charitable objectives empower it to address all issues affecting fish and the aquatic environment, supported by robust evidence from its scientific network, and to take the widest possible remit in protecting salmonid fish stocks and the aquatic environment upon which they depend. 10. For many years, S&TC UK has been running a chalkstream campaign focussed on addressing those negative impacts on chalkstreams caused by agricultural diffuse pollution, point discharges from sewage works, watercress or trout farms and over-abstraction of water from the rivers and their groundwater sources. This has included a detailed complaint to the European Commission over the failure of the UK, under Article 6(1) of the Habitats Directive, to establish the necessary conservation measures, appropriate management plans and appropriate statutory, administrative or contractual measures which correspond to the ecological requirements of the natural habitat types and species of chalkstreams in England designated as Special Areas of Conservation (SACs), and, under Article 6(2) of the Directive, to take appropriate steps to avoid the deterioration of natural habitats and species in such chalkstream SACs. Those failings relate to the impacts caused by low flows, over-abstraction of water, including large abstractions for public water supply. 2

3 11. WWF is a charity registered with the Charity Commission for England and Wales (Registration No ). It is also a company limited by guarantee registered in England and Wales (Registration No ). It was founded in 1961 and was formerly known as the World Wildlife Fund. 12. WWF in the United Kingdom runs programmes alone or in partnership with funders and other complementary organisations and undertakes campaigning activity to further WWF objectives. 13. From 2014 to 2017, WWF has led a European Union-funded WaterLIFE project, with The Rivers Trusts and Westcountry Rivers Trust, to improve the health of UK rivers, producing a wealth of guidance, reports, findings, films and case studies, built into the Catchment Based Approach, which works with NGOs, statutory water companies (such as Southern Water), local authorities, Government agencies, landowners, angling clubs, farmer representative bodies, academia and local businesses to deliver the objectives of the Water Framework Directive. 14. WWF also established the Itchen Initiative to identify solutions to the challenge of overabstraction and its impacts. The Initiative brought together leading water industry and policy experts to develop a compelling and coherent response to the challenges of overabstraction. The Initiative was intended to inform both DEFRA s 2011 White Paper on the water industry and OFWAT s review of the regulatory arrangements for the water industry in England and Wales, and was based on a series of background discussion papers prepared by a number of independent experts. Both Southern Water and South West Water co-operated in testing some of the approaches proposed using their water resource system models. The Initiative benefited from the advice and guidance of an expert Advisory Group composed of Lord Deben, Jonathon Porritt, Sir Graham Wynne, Tim Keyworth (OFWAT), Neil Whiter (South West Water), Meyrick Gough (Southern Water) and Professor George Yarrow. 15. In 2014, WWF also published a detailed report - The State of England s Chalk Streams (see Annex doc 1) with support from Coca-Cola Great Britain and Coca-Cola Enterprises, which concluded, in relation to English chalkstreams, that only 23% are classed as having attained Good status and a third are classed as Poor or Bad. Although only 2% of chalk streams designated as SSSIs are deteriorating, 85% are in unfavourable condition and half will not reach favourable condition unless there are changes to management or external pressures. 16. Jointly, WWF and S&TC UK are clear that improving river flows is highly likely to deliver multiple benefits which will help to address some of the other problems on the Test and Itchen rivers, including reducing the impact of sources of urban and agricultural diffuse pollution. Overview of proposed changes to Itchen, Testwood and Candover licences and support for the proposals made by the Environment Agency 17. The main objectives of WWF and S&TC UK have been to see timely implementation of a sustainable abstraction regime on both the Itchen and the Test, to achieve compliance with 3

4 the Habitats Directive and the Water Framework Directive on both rivers and to improve the protection afforded to the SSSIs and all associated protected wetland areas on both rivers. 18. WWF and S&TC UK made representations in relation to proposed changes to each of the five licences during the respective public consultation phases. 19. At this Inquiry, WWF and S&TC UK fully support the proposals for each licence brought forward by the Environment Agency, and supported by Natural England, as a necessary, albeit highly belated first step. 20. WWF and S&TC UK consider that the changes to the five licences being sought by the Environment Agency in this Inquiry are necessary changes to ease the external pressures on the chalkstreams generated by demand for water for public water supply and to comply with the Water Framework and Habitats Directive. 21. Specifically, for surface waters (as here), Article 4(1)(a)(i) of the Water Framework Directive required Member to implement the necessary measures to prevent deterioration of the status of all bodies of surface water from 22 nd December In addition, Article 4(1)(c) of that Directive obliged Member States to ensure that the standards and objectives for protected areas (for the purposes of this Inquiry, the Itchen and Candover) were met by 22 nd December Those obligations, read across from the Habitats Directive, are to maintain or restore, at favourable conservation status, the natural habitats and species of wild fauna and flora of Community interest. 23. General lack of resources or other similar issues (including any competing domestic law requirements) are simply not a lawful basis for non-compliance with the requirements of the Directives in that regard. See, for example, Case C-301/10, Commission v UK, making clear at paragraph 66, a Member State may not plead practical or administrative difficulties in order to justify non-compliance with the obligations and time-limits laid down by a directive. 24. The only lawful basis for not meeting the obligations in Article 4(1) by 22 nd December 2015 (and ongoing, since) would have been if, by Article 4(4)(a): (i) the scale of improvements required can only be achieved in phases exceeding the timescale, for reasons of technical feasibility; (ii) completing the improvements within the timescale would be disproportionately expensive; (iii) natural conditions do not allow timely improvement in the status of the body of water. Southern Water has not claimed, nor does it now claim, any of those to be the case. Indeed, plainly none of them is the case. 4

5 25. It follows that, as these objectives had to be met by 22 nd December 2015, and have not yet been met, the UK is in breach of the Water Framework Directive and has been since that date. The Environment Agency s proposals are now necessary to remedy that breach. 26. Importantly, the obligations to secure the outcome required by European Directives, and to remedy existing breaches, fall not only on the Environment Agency, but also on the Inspector himself, as confirmed in para 55 of the ECJ Case C-72/95 (the Dutch dykes case), which noted, that the obligation of a Member State to take all the measures necessary to achieve the result prescribed by a directive is a binding obligation imposed by the third paragraph of Article 189 of the EC Treaty and by the directive itself That duty to take all appropriate measures, whether general or particular, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts 1. This would also include the Inspector. 27. It follows that, as below, allowing this appeal would be unlawful. The Inspector is asked to reject the appeals. In the event that the Inspector is contemplating allowing them, then the Inspector is asked fully to explain how that result can be considered consistent with the obligations under the Habitats and Water Framework Directives. The Itchen licences 28. WWF has been involved in discussions with Southern Water and the Environment Agency since 2008 to try to assist the achievement of the requisite Itchen sustainability reductions on the Itchen. 29. Similarly S&TC UK has been actively involved with the Environment Agency for many years, seeking to improve flows in the Itchen and Test to protect wild salmonid populations on both rivers. 30. WWF and S&TC UK had hoped that, by now, Southern Water would have voluntarily made the necessary changes to its abstractions on the Itchen. 31. For example, in the detail of the sustainability reductions, WWF supported the proposal for the monthly abstraction limits for the summer period. 32. Southern Water confirmed to the Hampshire Water Resources Steering Group (which includes the Environment Agency and WWF) in 2014 that the significant reductions in demand, achieved through a universal metering programme, meant that they could implement restrictions on summer monthly totals then, without any impact on deployable output. 1 Judgment of the Court 24 th October 1996, in Case C-72/95, Reference to the Court under Article 177 of the EC Treaty by the Nederlandse Raad van State (Netherlands) for a preliminary ruling in the proceedings pending before that court between Aannemersbedrijf P. K. Kraaijeveld BV and Others and Gedeputeerde Staten van Zuid-Holland 5

6 33. At the time, and in the three years to 2017, WWF and S&TC UK have continued to urge Southern Water and the Environment Agency to implement (either by voluntary means or, if necessary, by imposed licence changes) those summer monthly limits as soon as possible. 34. However, the requisite changes have not been voluntarily offered by Southern Water and now require to be imposed. 35. Specifically, WWF and S&TC UK strongly support the implementation of a Hands-Off Flow condition to ensure that all abstraction ceases when the flows (at Allbrook and Highbridge) drop below a critical level. 36. However, while the proposed Hands-Off Flow of 198 ml/d is better than none at all, there is credible and scientifically robust evidence to suggest that this Hands-Off Flow should be set higher at least at 224 Ml/d. 37. In 2009, WWF commissioned independent research 2 from Professor Wilby (see Annex doc 2) to independently review the evidence compiled as part of the Review of Consents and look at the impacts of abstraction and flow on the macroinvertebrate communities. The report of Professor Wilby s work was submitted as part of WWF s representation on the Itchen changes and was shared in 2009 with the Environment Agency and Southern Water. 38. This work showed a clear decline in macroinvertebrate populations below the 224Ml/d level and concluded that flows dropping below this, towards and below the 198 Ml/d level, risked causing significant damage. Professor Wilby therefore concluded that 224Ml/d provided a Hands-Off Flow target that would better protect the integrity of the River Itchen SAC. 39. Professor Wilby s proposed Hands-Off Flow figure (224ML/day) was derived from Environment Agency data. While it is understood that the Environment Agency is committed to performing, by 2021, a similar exercise as that carried out by Professor Wilby for WWF in order to determine new flow targets for the Itchen, that is highly likely to conclude that the Itchen Hands-Off Flow condition in the Itchen licences held by Southern Water will need to be made more restrictive than that currently proposed, both for the purposes of achieving favourable conservation status under the Habitats Directive, but also to avoid deterioration in ecological status, as required by the Water Framework Directive. 40. This is also supported by S&TC UK and it is understood by WWF that Natural England has also advocated such a position. 2 Wilby, R An assessment of invertebrate-based target flows for the River Itchen, Hampshire. Technical note produced for WWF. This Technical Note offers an independent assessment of the methodologies, key scientific findings, and processes of the Environment Agency s Review of Consents for the River Itchen, Hampshire. Attention is focused on targets emerging from an assessment of low flow requirements of the instream macroinvertebrate community. 6

7 41. If the Environment Agency were to act now on a strictly precautionary approach, as part of its duties under the Habitats Directive, on the basis of the scientific evidence, it should implement a Hands-Off Flow of 224 Ml/d on Southern Water s abstraction licences. 42. It is therefore apparent that the Environment Agency s proposals in 2017, at a Hands-Off Flow of 198Ml/d, are already a compromise position, reached in part as a response from the Environment Agency to concerns raised by Southern Water over the available of sufficient water resources in times of drought. 43. It is important to consider the considerable delays so far incurred. 44. The Habitats Directive was adopted on 21 st May 1992 and given effect by The Conservation (Natural Habitats, &c.) Regulations 1994 in England and Wales. These Regulations have since been repealed in England and Wales and replaced by The Conservation of Habitats and Species Regulations Regulation 50 of the 1994 Regulations - Review of existing decisions and consents, &c. reproduced below, set down the requirement for a review of existing consents, in effect to apply retrospectively the test in Article 6(3) of the Directive to existing plans or projects affecting SACs, which therefore included the Itchen, and Candover abstraction licences: 50. (1) Where before the date on which a site becomes a European site or, if later, the commencement of these Regulations, a competent authority have decided to undertake, or have given any consent, permission or other authorisation for, a plan or project to which regulation 48(1) would apply if it were to be reconsidered as of that date, the authority shall as soon as reasonably practicable, review their decision or, as the case may be, the consent, permission or other authorisation, and shall affirm, modify or revoke it. 46. The River Itchen was proposed as a Site of Community Importance (SCI) 3 in March 1998, confirmed as an SCI in December 2004 and designated as an SAC in April The Itchen Site Action Plan, which sets out the consent changes and modifications required, was published in 2007, after the completion of the Review of Consents process that began in Since 2005, both WWF and S&TC UK-UK have made many representations to the Environment Agency supporting its proposed changes on the Itchen SAC and seeking their early implementation. WWF has been involved in detailed discussions with Southern Water and the Environment Agency since 2008 to try to achieve the requisite Itchen sustainability reductions necessary on the Itchen (and the associated changes at Testwood). 3 Sites of Community Importance (SCIs) are sites that have been adopted by the European Commission but not yet formally designated by the government of each country. 7

8 49. In that context, the first of its four objections, (i) to (iv), made by Southern Water s objection on the section 52 proposal by the Environment Agency to make changes to the three abstraction licences on the Itchen (SWS, 15 th December 2016), that the proposed changes are somehow immediate, and therefore provided Southern Water with too little notice, is simply not borne out by the facts. 50. Although there is no timetable laid down in the Habitats Directive, within which favourable conservation status of SACs must be achieved, the delay in implementing the Site Action Plan for the Itchen is undermining the achievement of the obligations placed on the UK by that Directive. 51. In its representation of 13 th December 2016, WWF welcomed the Environment Agency s proposal to implement the long overdue sustainability reductions on Southern Water s lower Itchen abstraction licences and expressed its disappointment that it has taken so long to bring forward the proposed changes, suggesting that the Environment Agency needed implement the sustainability reductions on the Itchen at once and, in doing so, shift the burden of risk from the environment and onto the company, to add momentum and escalate the sense of urgency in finding a sustainable solution that can make good any arising deficit in water resources available to Southern Water. 52. It has been made clear by the European Commission that indefinite or prolonged delay in implementing the Habitats Directive is not acceptable if maintenance or restoration of habitats or species of Community interest is thereby threatened. For example, in relation to a recent Dutch case, the Commission noted that whereas the Directive does not prescribe a precise deadline by which Member States must achieve favourable conservation status of species and habitat types of Community interest, it is obvious that concrete and efficient measures need to be taken without delay [in the Western Scheldt] to avoid irreversible deterioration of this important ecosystem That in 2017, the required protection of the Itchen SAC has not yet been achieved is unreasonable, by any measure, and therefore in breach of the Habitats Directive. 54. Further, the Water Framework Directive makes clear that the deadline for implementing the measures to secure conservation objectives in water-dependent Natura 2000 sites (such as the Itchen SAC) was 22 nd December 2015 at the latest (unless the time extension conditions were met, which is not claimed to be the case here, as above). The sustainability reductions, identified through the Review of Consents process in 2007, are the minimum necessary to ensure the UK moves towards compliance with the Habitats Directive on the Itchen SAC and, as such, the Environment Agency had a legal duty to implement those changes by Recall that those changes were confirmed by the Environment Agency as necessary to comply with the Habitats Directive over ten years ago. 4 Joint Answer given by Mr Potocnik on behalf of the European Commission - European Parliament Written Question E /11 15th September

9 55. In that sense, WWF and S&TC UK consider that any further modifications to the Environment Agency s proposals now, that would have the effect of reducing this Hands Off Flow further than has been proposed, or allowing greater take of water during low flows on the Itchen, would be unlawful. 56. Even if Article 6(4) of the Habitats Directive ( IROPI ) is now engaged, as Southern Water argues, the failure to meet Article 4(1)(c) of the Water Framework Directive by the 2015 deadline, means that the UK remains in breach of European law; and, as above, the Inspector is obliged to act to avoid that result, here by rejecting the appeal. 57. In summary, as the changes identified in the Itchen Site Action Plan to abstraction licences affecting the Itchen have still not been brought into effect, and there is no prospect of them being brought into practical effect before 2018, over a decade since the Site Action Plan was published, the UK is in clear breach of its legal obligations under the Habitats Directive. 58. Further, as the Water Framework Directive makes clear, the deadline for implementing the measures to secure conservation objectives in water-dependent SACs was December 2015 at the latest. 59. If the changes now being sought by the Environment Agency are not brought into effect in 2018, the UK will continue in breach of the Habitats Directive and the Water Framework Directive. Candover 60. WWF and S&TC UK support the proposal to decrease the abstraction on the Candover Stream. 61. The environmental imperative behind the proposed changes is, It appears, accepted by Southern Water which no longer challenges the EA s proposed changes to its Candover licence in respect of normal operation of groundwater abstraction and discharge to the Candover stream (SWS Provisional Case November 2017, para 21, as at 23 rd November 2017). 62. However, in December 2014, WWF and the Hampshire and Isle of Wight Wildlife Trust wrote to the Environment Agency and to Southern Water to express concern at the proposal to use the Candover augmentation scheme, to use sensitive chalkstream headwaters to allow for increased downstream abstraction at times of very low flow, is unsustainable in principle. 63. In their representations, WWF and S&TC UK urged the Environment Agency to go further and decommission the Candover abstraction site completely, reducing abstraction to zero, and, if relevant, donating the land to the Hampshire Wildlife Trust to manage as a wildlife reserve. 64. There is insufficient scientific knowledge of the likely ecological impacts of the cone of depression that is created from increased groundwater abstraction at Candover, with the 9

10 consequence that the ecological impacts of the Candover abstraction cannot be known to the degree that would be required to pass the site integrity test in Article 6(3) of the Habitats Directive. 65. It is already known that the Itchen chalk groundwater body, which underpins the Itchen SAC, is at poor quantitative status. Any abstraction at Candover will likely make this worse. 66. Furthermore, the Candover water bodies, the upper Itchen SSSI and Itchen Chalk groundwater bodies are failing to meet statutory objectives. While this currently is believed to be due to water quality issues, there is a clear risk that any abstraction at Candover would contribute to this deterioration. Lower flows in the river, caused by an artificially lowered water table due to the Candover abstraction and its associated cone of depression, would result in less dilution of pollution and increased sedimentation. The reduction in flow velocity would also make it less likely that the gravel bed is kept clean (free of sediment and well oxygenated), negatively affecting macro-invertebrates and brown trout spawning success. 67. The Environment Agency s proposals to decrease authorised abstraction for the purpose of augmenting flow in the Candover Stream for environmental support (from 3,750,000 cubic metres per year to 750,000 cubic metres per year and 27,000 cubic metres per day to 5,000 cubic metres per day) are a welcome step forward. However, given that the Candover scheme has not been used for some time, and that 5,000 cubic metres per day would represent an increase over recent historic actual abstraction levels, the Environment Agency s proposals are not sufficient to ensure there will be no breach of the two Directives. Indeed, the Environment Agency s own Appropriate Assessment is such that the Agency itself has concluded it is not valid beyond Therefore, the Environment Agency s proposals at Candover are only a step forward to ensuring protection of this precious headwater and the integrity of the Itchen SAC. The Environment Agency does not envisage no abstraction at Candover. It is therefore apparent that the Environment Agency s proposals in 2017, as on the Itchen, are already a compromise position, with respect to the strict requirements of the Habitats Directive. 69. WWF and S&TC UK note the assertion made by Southern Water that the Environment Agency s changes in relation to the Candover licence are excessively precautionary (Southern Water s representation on Candover, page 4, section 3). 70. However, the inherently precautionary nature of Article 6(3) of the Habitats Directive dictates how the burden of proof is to be satisfied in deciding on the proposals for Candover. 71. Article 6(3) requires the Environment Agency to take action when there is uncertainty about the scale or nature of impacts upon an SAC. 10

11 72. The precautionary nature of the test within Article 6(3) has been reinforced by a number of judgments of the European Court of Justice and incorporated into many domestic decisions (see, for example, the ECJ in Wadenzee 5 ). 73. This applies equally to the test as it is applied here under the Review of Consents process, which led to the Itchen Site Action Plan. 74. Note, for example, the recent decision in the recent judgment in the Court of Appeal in Northern Ireland on an application by Friends of the Earth Limited [2017] NICA 41 6, at paragraph 35, in which the Court provide useful guidance on the precautionary approach to be adopted under the Directive, in that case in relation to sand extraction from Lough Neagh, also part of the Natura 2000 network. It is acknowledged by the Department that these operations are likely to have a significant effect on the environment. It is not known what the effect will be. The precautionary principle applies. It operates on the basis that there should be no planning permission until it is established that there is no unacceptable impact on the environment. The Minister s decision proceeds on the basis that there is an absence of evidence of an unacceptable impact on the environment. The proper approach is to proceed on the basis that there is an absence of evidence that the operations are not having an unacceptable impact on the environment. And at paragraph 37 What has been disregarded in the letter of decision, where it deals with the Stop Notice, is that these operations are considered likely to have significant impact, that the nature and extent of that impact has not been established, that prior to the grant of permission is the requirement to establish that there will be no significant impact and that it is imperative that the precautionary principle be applied. What must be put in the balance is the absence of evidence that there is no harm. To approach the matter with a requirement for evidence of harm is the negation of the precautionary principle. 75. The Environment Agency s proposals on Candover cannot therefore be considered excessively precautionary. Both WWF and S&TC UK have made clear representations that 5 Case C-127/02 7 September 2004 Reference for a preliminary ruling under Article 234 EC from the Raad van State (Netherlands), made by decision of 27 March 2002, registered at the Court on 8 April 2002, in the proceedings brought by Landelijke Vereniging tot Behoud van de Waddenzee, Nederlandse Vereniging tot Bescherming van Vogels against Staatssecretaris van Landbouw, Natuurbeheer en Visserij, =first&part=1&cid= GB/Judicial%20Decisions/PublishedByYear/Documents/2017/[2017]%20NICA%2041/WEA10355Final%20- %20Approved.pdf 11

12 the Candover augmentation scheme should be closed altogether, as it is fundamentally unsustainable. 76. However, as a first step in the process to decommission the Candover abstraction, both organisations support the Environment Agency proposals, albeit that the Candover abstraction should only ever be used under the terms of a Drought Order made by the Secretary of State and only in extremis. Testwood 77. Although, of the two rivers, only the River Itchen is designated as an SAC, both the Itchen and the Test are internationally significant chalkstreams, with genetically important salmon populations. Both are also already suffering from a wide range of anthropogenic pressures, including over-abstraction. 78. For example, in 2015 and since, S&TC UK s Riverfly Census has demonstrated ecological biometrics on both rivers that are well below what would be expected on a healthy chalkstream. 79. Therefore WWF and S&TC UK have been clear for many years that they oppose the using of abstraction on the Test to bail out the Itchen and ensure that it is not over-abstracted. 80. However, if actual abstraction at Testwood is to increase to replace available abstraction volumes lost from the Itchen licences, it is imperative that a Hands-Off Flow is set at Testwood that avoids deterioration on the Test, as is required by the Water Framework Directive. As above, the avoidance of deterioration after 22 nd December 2000 is an absolute obligation under the Water Framework Directive and is not subject to any potential exceptions or derogations. 81. On the Test, the proposed licences changes are only a first step towards the necessary changes to protect the nature conservation interest of the river, as there are a number of drivers for future reductions in abstraction in the Test. 82. The context of likely and necessary future reductions in abstraction makes securing the initial reductions in abstractions that the Environment Agency s proposals represent, all the more important to incentivise Southern Water to make the long term investments now to secure alternative supplies. 83. Specifically, the Hands Off Flow proposed by the Environment Agency does not go far enough to protect the salmon in the River Test. 84. In March 2015 a discussion paper was produced by John Lawson, commissioned by WWF on managing lower Test abstraction impacts in relation to River Test salmon migration (see Annex doc 3). This report formed part of WWF s representation on the proposed changes at Testwood in November This work challenged the evidence presented by Southern Water concerning the effect on salmon and migration of abstraction from Testwood. 12

13 85. Representations subsequently made by WWF and S&TC UK-UK, in response to the proposed changes at Testwood, have raised serious concerns that the 390 Ml/d (the flow required to ensure that migration of salmon is not impeded) does not come into effect until It is understood that the imposition of tighter Hands Off Flows to protect salmon will reduce the utility of Testwood to Southern Water in drought conditions and might lead to a supply difficulties but, in that case, the statutory provisions available to secure supply by operating under Drought Orders, are sufficient. 87. As above, the requirement under the Water Framework Directive was to meet objectives by 2015 unless it is disproportionately expensive or technically infeasible to do so. The Environment Agency should demonstrate why the failure to meet the deadline of 22 nd December 2015 with respect to the flows it recognises as necessary for the protection of salmon, could not be remedied at once, as against the extensions of time allowed for in the Directive. Neither it nor Southern Water has claimed that the time extensions permitted by the Directive are applicable here. They are plainly not. 88. In addition to concerns over sufficient flows to protect salmon, Natural England has pointed out that the Environment Agency s proposals may not meet the revised river Common Standards Monitoring Guidance (rcsmg) flow targets for reaches in the lower River Test SSSI, which were published in Although these flow targets post-date the completion of the Review of Consents, the Environment Agency and Natural England have already agreed a staged approach to the implementation of rcsmg, with an interim goal to be achieved by December 2021 and longer-term targets. 89. In summary, WWF and S&TC UK recognise the Environment Agency s proposals on the Test are an important first step that will reduce headroom in the current Testwood licence and should ensure movement towards meeting the non-deterioration requirements of the Water Framework Directive, but they are only a first step. 90. As for both the Itchen and Candover proposals, it is therefore apparent that the Environment Agency s proposals in 2017, not to bring in the Hands-Off Flow required to protect salmon until 2027, are already a compromise position, reached in part as a response from the Environment Agency to concerns raised by Southern Water over the available of sufficient water resources in times of drought. General observations 91. Southern Water argues that the Environment Agency s proposal have the potential to put the company into deficit, and increase the likelihood of a need for Drought Orders. 92. A large number of representations have referred to the range of demand management, leakage reduction measures, or alternative supplies of water that could be implemented to address any perceived deficit in available water supplies that Southern Water might 13

14 experience as a result of the changes sought by the Environment Agency across all five licences. 93. WWF and S&TC UK have offered and will continue to offer to work with Southern Water and the Environment Agency to address any arising deficit, but consider that there are and have been, for some time, a number of measures available to Southern Water to reduce the likelihood of such deficit arsing including, but not limited to: - additional action to enhance demand side responses including achieving reductions in per capita consumption in critical periods involving early communication with customers, incentives and other behaviour change tools; and - the early use of Temporary Use Bans and non-essential use bans to conserve supplies in pre-drought. 94. In October 2015, Southern Water agreed to develop a Memorandum of Understanding with WWF to develop tariff and incentive trials. In this way, the deployable output lost in relation to Candover abstraction, at the very least, could be achieved through demand management, but WWF has been disappointed that Southern Water has not yet progressed this with the urgency needed. 95. WWF has also advocated smart licence controls, such that abstraction is gradually reduced as flows drop towards critical levels, as set out in the Smart Licencing paper commissioned by WWF and previously shared with the Environment Agency (see Annex doc 4). 96. In simple terms, Southern Water should have done more by now to identify least-damaging alternative solutions to secure long-term public water supply, and ensure that these were put forward in previous Water Resources Management Plan cycles. 97. In its Provisional Case of November 2017, Southern Water suggested at para 3, that its forthcoming Water Resources Management Plan will set out the alternative water resource schemes to be developed to meet the Environment Agency s environmental requirements for the Test, Itchen and Candover for the longer term. 98. However, the obligation of the Water Framework Directive was that those alternatives should have been implemented and achieved the Habitats Directive obligations by 22 nd December 2015 for the Itchen and Candover (as a protected area) and, unless the extensions of time allowed for in Article 4(4) for disproportionate expense or technical infeasibility applied (which they do no), also by 2015 for the Test. 99. In any event, both strong demand management and alternative supply options must now be included, to the fullest possible extent, in the draft Water Resources Management Plan expected in December This must include a wide and rigorous assessment of alternatives, taking into account environmental objectives in neighbouring catchments, in line with Ofwat s 14

15 expectation that companies develop innovative and transformative plans, and consider the resilience of the natural environment alongside the resilience of their own operations. Drought orders 101. The Habitats Directive is clear that any delay to making the abstraction licence changes that are required to protect the Itchen SAC would only be lawful if an argument can be raised successfully by Southern Water that there is a case here of Imperative Reasons of Overriding Public Interest (IROPI) per Article 6(4) of the Habitats Directive, which would mean that the changes need not be made However, there always remains the option of applications by Southern Water for Drought Orders, which means that an alternative solution to secure the water supplies, that Southern Water says it would need to address the impact of any shortfall, already exists For example, Southern Water s objection on the section 52 proposal by the Environment Agency to make changes to the three abstraction licences on the Itchen (SWS, 15 th December 2016) raises four main objections, (i) to (iv). Of those, objections (ii) to (iv) focus on what might happen in the event of a drought There is a long established and functioning statutory system providing for drought planning and the issuing of Drought Orders Chapter I of Part III of the Water Industry Act 1991, dealing with general duties of water undertakers, establishes the procedure for the drawing up of Drought Plans, to be put into effect if a drought occurs. These plans are drawn up by water undertakers in consultation with, among others, the Secretary of State In the event of a drought, the Secretary of State has powers under section 73 of the Water Resources Act 1991, to make ordinary and/or emergency drought orders to safeguard public water supplies Southern Water argues that there is some uncertainty concerning how Drought Orders would operate. There is an assumption by the EA (and Defra) that a Drought Order will be granted during drought to remove the constraints on abstraction caused by the licence changes and a lack of clarity on how such a Drought Order will be granted, relative to establishing that a case of imperative reason of over-riding public interest ("IROPI") exists However, all parties can only operate on the basis that the Secretary of State would, in such drought circumstances, be alive to the need to maintain essential public water supply, and would act reasonably and lawfully in making, or not making any drought orders. That must be the assumption The Environment Agency s proposals at this Inquiry cannot therefore sensibly be judged against some potentially unreasonable or irrational response from the Secretary of 15

16 Conclusions State to any future application from Southern Water for Drought Orders. Nor is this a case where IROPI can be raised, as this would be inconsistent with the existing statutory mechanisms for drought planning and drought orders WWF and S&TC UK support the Environment Agency s proposals across all five licences as, taken together, they represent a coherent whole to begin to address the low flow issues on both rivers There has already been considerable delay in bringing forward the requisite changes on both rivers, driven by the Habitats Directive (on the Itchen and Candover) and by the Water Framework Directive on both rivers The continuing failure to meet the requirements of the Habitats Directive on the Itchen and Candover represents a breach of the Habitats Directive and the timetable for water-dependent protected areas, as set down in the Water Framework Directive WWF and S&TC UK do not consider that the Environment Agency s proposed changes meet completely the UK s obligations under relevant European law Nor can the changes proposed by the Environment Agency to all five licences be considered completely in isolation from the likely future tightening of hands off flows in both rivers over the next ten years. It is highly likely that flows will need further protection for a number of reasons on the Test, in relation to salmon migration, the requirements of the Water Framework Directive to avoid deterioration in the status of water bodies, and in relation to the likely CSMG minimum flows to be brought by Natural England to protect both aquatic and wetland Sites of Special Scientific Interest on both river systems While it is clear that the failure of Southern Water to invest sufficiently to date, to bring online other water resources and make Southern Water s supply system more resilient, is regrettable, it is important, at this stage, particularly in view of the new resilience duty upon the Secretary of State, provided for in the Water Act 2013, that the changes proposed by the Environment Agency are brought in at the earliest possible moment. This is essential to incentivise the long term investment required from Southern Water Southern Water argues that its duty under section 37(1)(a) of the Water Industry Act General duty to maintain water supply system etc - to develop and maintain an efficient and economical system of water supply within its area and to ensure that all such arrangements have been made for providing supplies of water to premises in that area and for making such supplies available to persons who demand them is key here, but that duty is, as a matter of settled law, subservient to the obligations placed upon the UK by the Water Framework Directive and Habitats Directives In the last paragraph of its Provisional Case, Southern Water, at page 9, refers to the myriad of EU and UK water industry and environmental legislation whose requirements 16

17 have the potential to impose conflicting demands on the company. This fails to recognise that the Water Framework Directive and Habitats Directive place clear and strict demands on the UK as a whole. Implementing measures to meet those obligations is the responsibility of all public authorities. The strict protection provided by the Habitats Directive and the obligations under the Water Framework Directive (subject only to the extensions permitted by that Directive) mean that there is no option but to require the changes at all five licences in order to avoid the potential for infraction proceedings against the UK While the company, Southern Water, does not directly feel the heat of the obligations of the two Directives, it needs to recognise that the Environment Agency and Secretary of State (and in the context of this appeal, the Inspector) must act to ensure compliance with the obligations of those Directives and regulate the water industry, including Southern Water, accordingly In summary therefore, WWF and S&TC UK consider that the need to comply with the legal obligations set down in the Habitats Directive and Water Framework Directive cannot now be set aside for these five licences. WWF and S&TC UK therefore support the proposals brought forward by the Environment Agency, but with modifications WWF and S&TC UK urges the Inquiry to confirm those proposals, but with modifications to implement immediately the proposed 2027 Hands-off Flow at Testwood to protect salmon and to reduce the Candover abstraction to zero, other than under the terms of any future drought order. 17

18 Annex Doc 1) WWF (2014) The State of England s Chalk Streams Doc 2) WWF (2009) An assessment of invertebrate-based target flows for the River Itchen, Hampshire Prepared for WWF by Professor Robert Wilby, University of Loughborough, November 2009 Doc 3) WWF (2015) Discussion Paper on Managing Lower Test Abstraction Impacts Report produced for WWF by John Lawson FREng FICE FCIWEM March 2015 Doc 4) WWF (2011) Discussion Paper for WWF s Itchen Initiative - Smarter licensing to reduce damaging abstraction from environmentally fragile rivers with minimum possible impact on water resources yield. River Itchen Case Study Written by Dr Colin Fenn (Independent Consultant), Professor Rob Wilby (University of Loughborough) February

19 18 th December