Natural Resources Wales admits unlawful investigation into Llyn Padarn pollution by Dwr Cymru Welsh Water
Fish Legal has won major concessions from the regulator in Wales during a Judicial Review of its investigation into environmental damage at Llyn Padarn, a site of special scientific significance (SSSI). On behalf of its member club the Seiont, Gwyrfai and Llyfni Angling Society, Fish Legal took Natural Resources Wales (NRW) to the High Court for failing to investigate Dwr Cymru Welsh Water (DCWW) properly in accordance with EU law. Late-night negotiations went to the “door of the court” before NRW admitted the full extent of its mistakes and that its earlier decision was unlawful.
An underlying reason for NRW failures was that the Welsh Ministers did not correctly implement EU law into national regulations, which may have implications elsewhere in the UK where similar regulations were made.
Further revelations came to light during the course of the case, including that DCWW has for years been operating an un-permitted discharge that at times will pump untreated sewage into the lake. DCWW had earlier omitted this information from evidence filed at court and refused to accept allegations made by local anglers about this discharge on many occasions years before. However, under the scrutiny of the court process they belatedly confirmed they had found this discharge and that they would apply for an environmental permit, after the Claimant highlighted their omission.
In February 2012, Fish Legal formally notified NRW of damage to the lake under the Environmental Damage Regulations 2009, triggering a 17 month investigation.
The eventual report did identify DCWW as having caused environmental damage to the lake, but failed to assess the full extent of the impact of its activities. Through its judicial review of NRW, Fish Legal has now forced the regulator to admit that it should have taken into account damage arising from a much wider time-period, including damage from ongoing activities that started before the law came into effect but which have caused/will cause damage since then.
This is important because the lake has been contaminated for decades by the discharge of both treated and untreated sewage by DCWW, and NRW must now consider the impact of that ongoing activity. Other ongoing activities at the lake, that cause damage to the char, will also be covered. An example highlighted by the claimant is the dinorwig hydro-power installation (the so called “electric mountain”) that has cut-off access to important char habitat and spawning grounds.
Fish Legal believes this new investigation is likely to show greater damage caused by DCWW activities and other operators to the protected habitat and its rare fish.
Fish Legal has campaigned for better water quality at Llyn Padarn since the 1990s, representing its member club who owns the fishing rights at the lake. Llyn Padarn is a precious glacial lake in North Wales, containing a unique sub-species of arctic char found nowhere else in the world. This species has suffered long-term decline and has now reached such a vulnerable state that it is on the verge of total collapse.
The once pure waters of this Site of Special Scientific Interest (or SSSI) have been contaminated for decades by sewage discharges from DCWW facilities, leading to a toxic algal bloom in 2009.
Huw Hughes, Secretary at the Seiont, Gwyrfai and Llyfni Angling Society, said:
“It's beyond belief that it's taken 22 years of complaining, campaigning and eventually legal processes for the authorities to admit their failiure in regultaing pollution and other activities which have driven the Arctic Char - an iconic Welsh fish which by it's presence highlights our supposedly pristine environment. This fish has been driven onto the edge of extinction by regulatory inactvity.
In light of Fish legal's sterling work we sincerely hope that the urgency required will now be directed into clearing up this mess, and all involved especially Dwr Cymru/Welsh Water will fully cooperate in this operation.
William Rundle, Head Solicitor at Fish Legal, commented:
“It has been an uphill struggle to get the regulator to admit to failures in its investigation. We now hope they will undertake their new investigation quickly and without fear or favor. The situation needs to improve soon if the char are to reverse their trend towards extinction.
He further commented:
“Dwr Cymru Welsh Water is a major polluter throughout Wales and has put significant resources into obstructing our progress in this case. I would expect them to continue to fight the regulator in any new decision even though they could be more proactive in sorting out the impacts their activities have on water quality now. Unfortunately, despite Natural Resources Wales and the Welsh Ministers finally accepting we were right and that continuing activities causing damage had to be taken into account, DCWW refused to agree this was the case.”