WildFish has uncovered Southern Water and the Environment Agency’s (EA) plan to abandon Southern Water’s commitment to end over-abstraction of the rivers Test and Itchen by 2027. Extending the deadline to 2035 at the earliest risks wiping out endangered chalk stream Atlantic salmon and wrecking the chalk stream’s fragile ecology. The original deadline was the result of a public inquiry so any changes should receive the same public scrutiny. As things currently stand, Southern Water and the EA are treating the River Test, Itchen and the public with contempt.
WildFish has obtained a communication plan – through a Freedom of Information (FOI) request to the EA – which sets out how Southern Water and the EA intend to ‘communicate the renegotiation of the Section 20’ deadline.
The deadline was originally set to protect the rivers Test and Itchen from Southern Water’s ecologically damaging drought permits past 2027. This deadline – at least a decade too late as a result of EA dithering and kowtowing to Southern Water – is now history. The communication plan regards the 2027 deadline as outdated and emphasises the need to extend the deadline to a period when Southern Water’s current water resource project is completed. The completion date for this water resource project has already been officially delayed three times. Having failed to deliver an alternative water resource on time, Southern Water is now looking to shift the goalposts and afford itself extra time – time the rivers and its genetically unique salmon population do not have.
The rivers Test and Itchen are culturally and economically important chalk streams. Both support distinct Atlantic salmon populations and are legally protected. The rivers also provide water to tens of thousands of homes in Southern Water’s Western Supply Area.
Due to poor management and underinvestment, the rivers and their salmon populations are now under threat from over-abstraction and drought. Southern Water was entrusted to find alternative water supplies to reduce its reliance on these rivers. Yet, the water company continues to postpone the delivery of these alternative water resources – threatening the future of these iconic chalk streams and their salmon populations.
Having recognised the impact Southern Water’s operations were having and would continue to have on the Test and Itchen’s ecology, the EA finally imposed restrictions on the water company in March 2018. This was achieved via an Operating Agreement and is legally binding under Section 20 of the Water Resources Act 1991 with Southern Water unable to amend the terms of the Agreement without sign-off from either the EA or the Secretary of State.
The Agreement stipulated that Southern Water must find an alternative water resource so that it no longer relied on drought permits on the Test*, Itchen and Candover after 2027. Southern Water was obligated to use ‘all best endeavours’ to deliver this alternative water resource by 2027. The wording ‘all best endeavours’ is important as it forms an onerous obligation on Southern Water to perform the requirements set out in the Agreement.
The communication plan obtained suggests that 2027 was set as the Section 20 deadline because it was the year Southern Water’s alternative water resource was due to be completed (it was actually set with reference to the need to protect the chalk streams and their salmon as soon as practically possible using all best endeavours to find a solution).
Southern Water now argues that the deadline should be extended as its current estimate is that the alternative water resource will not be completed until 2035-2036. Rather than having a fixed deadline, the plan claims that ‘delivery within a period [of time]’ would be more ‘appropriate’.
The plan outlines the perceived benefits of changing the deadline date, which it suggests includes ‘increased protection for the environment’, although, no details on this are provided. This perception seems at odds with the fact that the proposed deadline extension would grant Southern Water access to ecologically damaging drought permits for a decade more than was originally set by the Section 20 Agreement in 2018. It also overlooks the fact that Atlantic salmon on the Test and Itchen are at genuine risk of collapse due to the current condition of the chalk streams.
Salmon numbers on the Test and Itchen were less than half the number required to maintain the population in 2022. In fact, the number of returning salmon on the Itchen was the lowest it has been in the last 30 years.
The FOI exposes that Southern Water also sought to weaken the ‘all best endeavours’ requirement that had been placed upon it.
The wording ‘all best endeavours’ is important in the Section 20 Agreement as it forms an onerous obligation on Southern Water to perform the requirements set out in the agreement. Previous case law has interpreted ‘all best endeavours’ to mean that a party must take “all those steps in their power which are capable of producing the desired results” (IBM United Kingdom Ltd v Rockware Glass Ltd [1980] FSR 335).
The EA don’t appear to have let this happen, and have expressed concerns about the Southern Water’s proposals for the provision of alternative water supply infrastructure in their representation on the then draft WRMP (dated 20.2.23) – where the EA refers to no demonstration of robust decisions in relation to options, failure to consider all feasible options, and the need to explore additional options.
Such failures would be of concern even in the absence of the Section 20 Agreement, but the requirement to use ‘all best endeavours’ imposes an additional extremely demanding duty which Southern Water owes to the EA. It seems clear that Southern Water have not been acting in accordance with this duty. We have not, however, seen any evidence of steps being taken to enforce this requirement to avoid delay.
The Section 20 Agreement was produced as part of a Public Inquiry into the modification of the Test and Itchen abstraction licences in 2018. WildFish and WWF fed into the wording of the Agreement, with particular emphasis placed on the urgency with which Southern Water was to develop and deliver its alternative water resource. Alterations were made to the draft Agreement as a result of the submissions made at the Inquiry. Since the Agreement was signed, local stakeholders have relied on the Agreement and in particular the ‘all best endeavours’ clause, as binding Southern Water.
WildFish’s FOI has now revealed that for at least two years Southern Water has been considering and discussing with the EA proposals to alter the Section 20 Agreement.
These considerations and proposals have not been made public, despite requests for information. Indeed, the recently released documents reveal that the intention is to conclude the negotiations before the public is informed.
This is completely unacceptable.
The Section 20 Agreement was produced and consulted on as part of a Public Inquiry so there should be complete transparency around any alterations that are under consideration. Interested parties and the public must be informed and consulted on any amendments and their specific wording before the Agreement is concluded.
*Test Water Drought Permit still available in extreme drought events (1-in-500 year drought)
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You have to ask the question why do we put up with an Environmental Agency that supports shocking levels of pollution by water companies. Rivers should be handed over to be run by Rivers Trusts backed by Government money. Until recently I was a riparian owner of several beats on a Welsh salmon river and experienced very poor scientific work by NRA.