Save Windermere campaign urgently demands an independent inquiry into the failure of water industry regulation
The Save Windermere campaign urgently demands an immediate independent public inquiry into the failure of water industry regulation by the Environment Agency in the Cumbria and Lancashire Area. The inquiry should focus on the regulation of United Utilities within the Windermere catchment in the Lake District National Park.
Additionally, the campaign insists on the removal of the Environment Agency’s board and senior managers responsible for the North West region. We believe this inquiry could expose similar issues nationwide. Below is a high-level summary of key points to support these demands and to demonstrate why Save Windermere does not trust the Environment Agency’s regulation of the water industry, nor its ability to protect Windermere.
The recent BBC Panorama, ‘The Water Pollution Cover-Up,’ highlighted the woefully inadequate actions of the Environment Agency in protecting the environment, especially in effectively regulating the water industry. Save Windermere, in partnership with WildFish and Windrush Against Sewage Pollution (WASP), have uncovered evidence of illegality and ecological damage caused by United Utilities’ assets on Windermere’s freshwater, discrepancies in operator self-monitoring data, and more. These findings indicate the agency’s inability or unwillingness to hold United Utilities accountable.
Save Windermere has initiated a petition and released a new film, accompanied by a templated letter to MPs, urging immediate action to address these regulatory shortcomings.
Evidence of Regulatory Failure
The Environment Agency’s (EA) handling and investigation of the category 1 fish kill, which occurred on Cunsey Beck in June 2022, provides some of the most damning evidence for regulatory failure. This was a major incident and the EA suspected that “100% of life within the river had been killed.”
The campaign has spent the last year obtaining evidence which has demonstrated the inadequacy of the investigation. The Agency stated in their final report that “despite extensive investigations, the source or cause of the incident was unable to be identified.” As a result of their being no identified polluter, a casefile was not started.
Save Windermere believes that the Agency’s failure to identify a polluter was a direct result of a woefully inept investigation.
One crucial piece of evidence that supports these conclusions is a draft report from the Scottish Environmental Protection Agency (SEPA), obtained through an Environmental Information Regulation (EIR) request submitted by WildFish. The SEPA review scrutinised the local Environment Agency’s findings.
The full SEPA report can be found below.
Save Windermere highlights key points from the SEPA report:
SEPA doesn’t exclude discharges into Cunsey Beck, including from the Wastewater Treatment Works (WwTW), as potential contributors to the incident.
There were a limited number of sampling locations on Cunsey Beck, notably downstream of the WwTW.
Despite the EA stating that an algal bloom was the most likely cause of the fish death, SEPA found insufficient evidence to directly link cyanobacteria or related supersaturated dissolved oxygen levels to mass fish mortalities, as no distressed fish or cyanobacteria toxicity evidence was obtained.
No dead fish or invertebrates were documented in Cunsey Beck upstream of the WwTW outfall.
SEPA found that there were significant omissions and weaknesses in evidence gathering during the investigation.
Via EIR requests, Save Windermere has identified additional areas of concern regarding the handling of the investigation, some of which are outlined below.
Misrepresentation of Ecology Report
Figure 1: EA Correspondence shows ecology report conclusions were actively misrepresented. Validated by SEPA report.
Save Windermere found evidence suggesting that the ecology report was misrepresented to support the Agency’s predetermined conclusion (Figure 1). The ecology report finds that one site, downstream of the WwTW at Eel House Bridge, was most impacted due to the presence of dead lumbricid worms. However, the EA’s final investigation report stated that “dead worms were noted on the substratum at all sites sampled” (including those above the WwTW), which was not the case. SEPA also flagged this inconsistency.
Misrepresentation of Investigation Timelines
Additionally, EA correspondence shows that they did not find their “smoking gun” until September 2022 (Figure 2). This suggests that the EA’s hypothesises for what caused the fish kill wasn’t formed until the 8 September. This contradicts the EA’s response to the SEPA investigation, which states that officers determined on the day of the incident that there was no polluter. Therefore, the EA’s justification as to why a casefile was not started is invalidated and contradicts the timelines of the investigation.
Figure 2: The EA finds its “smoking gun” on 8 September
Furthermore, the Head Office Emergency Liaison Procedure form demonstrates that the day after the fish death, the agency believed the source of the pollution to be United Utilities (Figure 3).
Figure 3: EA Head Office Emergency Liaison Procedure form
Failure to Collect Adequate Samples
The EA provides two reasons as to why no samples of dead fish were collected. Firstly, because they determined on the day that there was not a polluter - this seems impossible without acquiring relevant evidence beyond mere eyewitness testimonies and before relevant sampling has occurred.
Secondly, due to “health & safety concerns” on the day of the incident. However, fishery officers were reportedly present on the 21st, 22nd and 23rd [as per EA appendices of SEPA report], and if safety was a concern, a competent regulator would ensure staff were equipped with proper Personal Protective Equipment (PPE) when revisiting the incident site in the following days. The Agency themselves in correspondence indicate that fish that were already removed from the river by third parties could have been taken for analysis.
Figure 4: EA Correspondence demonstrates doctoring of report conclusions to align with predetermined conclusions
Inconsistencies is Incident Reporting
The EA stated that “One dead eel and a small fish were observed upstream of the sewage works outlet”, however there is no photographic evidence supporting this claim. Additionally, when a fish kill occurs, it’s common for some individuals to be observed above the pollution source. Interestingly, no dead fish were spotted in the stocked fishery, where the Agency asserts the pollution pressure likely originated. Moreover, fishing catch data from that day indicated no distress signs in fish within the fishery due to algal toxicity or low dissolved oxygen levels. This assertion aligns with the Agency’s ecology report, indicating, “Although the [algal cell] count was high, it was not massive and most likely did not lead to the death of numerous organisms in Cunsey Beck, which appeared affected along its whole length.” This statement was omitted from the final investigation report as we believe that it contradicts the conclusions that they made. This again contradicts the Agency’s own assertion that the ecology report is their strongest piece of evidence.
Figure 5: EA states Ecology Report is strongest evidence, yet final report contradicts it
Our Conclusions
Save Windermere believes that the investigation lacked the scientific and systematic approach needed to identify the pollution incident’s source. This aligns with the SEPA report, stating, “No clear, systematic approach to the investigation to identify and eliminate potential sources,” and “The investigation was not conducted as expected for this type of incident.”
Notably, there was no immediate downstream sampling from the wastewater treatment works on the incident day. Despite EA evidence demonstrating that the most impacted site was identified about 1.5 km downstream of the WwTW in the invertebrate survey, there was no systematic attempt to trace the pollution source upstream. Water samples lacked uniform parameters, making them incomparable, with only one sample taken on the incident day.
The Save Windermere campaign calls for the reopening of the Cunsey investigation with independent and suitably qualified investigators and live transparency to a suitable public representative. The campaign also calls for an inquiry into the North West Environment Agency’s regulation of United Utilities.
The campaign advocates for :
Permit reviews at all sites within the catchment by the first quarter of 2024 to reflect the law which states sewage can only be spilled in exceptional circumstances.
Independently accredited real time monitoring devices installed at all sites in the catchment. These devices should monitor phosphorus concentration and volumetrics of all untreated and treated sewage discharging. This data should be available to the public.
Tightening of all discharge limits
Removal of annual averages phosphorus limits to be replaced with capped concentrations.
Removal of all descriptive permits in the catchment and replacement with numeric permits.
Prosecution of illegal discharging in the catchment. To include both dry spilling and discharging before flow to full treatment requirements have been met. Evidence of illegal sewage discharging in the catchment has been reported by Windrush Against Sewage Pollution [see report here].
Investment that ensures, at a minimum, United Utilities is complying with the law and that the investment cost to bring assets up to compliance does not fall on bill payers i.e outside of AMP 8 investment (all illegality needs rectifying externally to this investment).
All assets that have CSO discharging must have EDM monitors installed. This should include sites that are supposed to only be used in Emergency circumstances.
Matt Staniek, the founder of Save Windermere said: “The SEPA report’s findings are a clear demonstration of the EA’s continued failure to adequately regulate United Utilities. Our opinion is that they have been negligent in performing their statutory duties to protect Windermere and its tributaries and, as a result, our lake is being exploited. By failing in their regulatory responsibilities they open themselves up to accusations of incompetence and worse. We demand United Utilities hands over all of their data from the time of the Cunsey Beck fish death and that the EA urgently reopens the investigation.”
James Overington, the Water Policy Officer at WildFish said: “The Agency’s handling of the Cunsey Beck investigation was careless, irrational and unscientific. The number of basic errors uncovered by WildFish’s FOI request was shocking. Concerningly, this is not an isolated incident with the Agency routinely failing to do its job all over the country. In the absence of a properly resourced EA, pollution events, like the one on Cunsey, will continue to happen with polluters able to operate without fear of prosecution.”
Ashley Smith, the founder of Windrush Against Sewage Pollution said: “The Environment Agency is no longer a credible regulator, its disregard for the truth is blatant and demonstrable in the face of the latest clear cut evidence that results have been altered and evidence has been deliberately missed. Integrity, and lack of it, flows from the top of an organisation and it seems to me that the rot of denial that started with the previous CEO, Sir James Bevan, has carried on under the new boss, Philip Duffy. The public deserves better and pays for better. Defending staff is one thing, allowing the whole organisation to be tainted by the incompetence and what looks increasingly like corrupt practices of a few is something entirely different and it is both unacceptable and dangerous. Shockingly, the Agency is already subject of an Enforcement Order by the Information Commissioner for holding back responses yet it carries on regardless - What will it take to end the cover up culture? We also have to ask what on earth the likes of the Parliamentary EFRA Committee has been doing to let the Agency leadership drag it so far off track that it has lost all credibility with many sections of the public and NGOs. The warning signs of dishonesty and denial in the Agency have been there for a long time and the failure to end this scandalous culture of cover up is a betrayal of the public and a neglect of duty.”
