The Office for Environmental Protection (OEP) has launched an investigation into the government’s Statutory Guidance on applying the Farming Rules for Water (FRfW).
The Office for Environmental Protection (OEP) has launched an investigation into the government’s Statutory Guidance on applying the Farming Rules for Water (FRfW).
These regulations aim to reduce and prevent water pollution from agriculture by requiring farmers to plan the application of organic manure and manufactured fertiliser so that it does not exceed the needs of the soil and crop.
Defra issued Statutory Guidance in 2022 setting out criteria the Environment Agency should consider when assessing whether it should take enforcement action under the FRfW.
Helen Venn, the OEP’s Chief Regulatory Officer, said: “Our investigation will seek to clarify whether Defra failed to comply with environmental law by issuing and continuing to make public the Statutory Guidance to its regulator on its enforcement of the Farming Rules for Water.
“The OEP believes that the Statutory Guidance may be unlawful as some of the wording is not consistent with the regulations themselves. This guidance is likely to be relied upon by farmers and may therefore lead to breaches of the regulations when applying manure or fertiliser to the land.
“Alongside launching this investigation, we have issued an Information Notice to the Secretary of State setting out the details of these possible failures. We will wait to see their formal response to that Notice before deciding next steps.
“We are aware that a great deal of work is now underway to address concerns about water quality, including most notably the Water Commission recently announced by Defra. We hope that clarifying the law around this guidance will make an important contribution as part of that bigger picture.”
The investigation follows a complaint received by the OEP from WWF-UK and ClientEarth regarding the Statutory Guidance.
Notes
The potential failures by Defra relate to Regs 4 and 15 of the Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018, known as the Farming Rules for Water.
The investigation is a statutory investigation under section 33 of the Environment Act 2021. The investigation will consider whether there have been serious failures by the Secretary of State to comply with the Farming Rules for Water.
We have given the information notice under section 35 of the Environment Act 2021. The information notice describes the alleged failures by the Secretary of State to comply with environmental law, explains why we believe this is serious and requests specific information relating to the allegations. The Secretary of State must respond in writing to the information notice. The deadline set for this response is 13 January, 2025. We will use this information to understand the facts of the situation, which can inform future decisions. Under section 41 Environment Act 2021, the OEP must publish a statement where it gives an information notice. This public notice is given pursuant to section 41 of the Environment Act 2021.
The OEP’s strategy and enforcement policy can be found here. The OEP has powers to carry out an investigation into whether a public authority has complied with environmental law. Public bodies, including the Secretary of State, have a statutory duty to cooperate with OEP and provide it with such reasonable assistance as it requests. An investigation may lead to enforcement action.
