Protecting Rivers: the rights of nature?

English literature and art[2] are full of references to this splendid idyllic vision of England, composed of countryside and beautiful scenery with fast flowing and clear rivers and streams [3]. The reality was and is more  disturbing [4],  and has little in common with the romantic views of our nation’s heritage. Canals and waterways of the nineteenth century that formed the landscape and the famous fishing rivers are all vulnerable delicate habitats in need of protection. The 18th and 19th centuries wrecked- havoc as unregulated sewerage, chemicals and injurious matter entered rivers. In the mid- 19th century London was one of the wealthiest cities,  but it was overcrowded with over 6.5 million living in Greater London. The threat of cholera, typhoid and infectious diseases including smallpox highlighted the city’s threat to human health. The “Great Stink of 1850 [5]” brought matters to political attention and the realisation that rivers were so polluted as to be deadly to human life.  Over the years action was taken, eventually bringing visible improvements . Today it remains the case that England’s rivers and waterways are subject to serious threats and continued uncertainties to their quality and as natural habitats [6]. Two contemporary events have  contributed to uncertainties. COVID 19 has placed enormous pressures on the amount of public spending and the available resources for effective regulation. Brexit has yet to be fully adapted into the working of UK law. Retained ” EU law” was fully integrated into UK law under the EU ( Withdrawal Act) 2018.  This means that post Brexit retained  EU law, allows  the UK government free to depart from EU law and some of the regulatory changes are to be found in the long-delayed Environmental Bill 2019/21 currently before Parliament. Ministerial promises sound reassuring such as maintaining EU  protection and not “weakening it.” Optimistic sounds[7] do not accord with reality as the Department for Environment, Food and Rural Affairs, (Defra), the UK central government ministry, responsible for water, confirmed that in May 2018, around one quarter of water bodies failed to meet  “ good status” In June 2021, Defra found that “ in England no surface waterbodies achieved good status for hazardous chemicals.”[8] Estimates of the main sources of pollution include agriculture and land management (40%), the water industry (35%), and urban and transport (18%).

Water is a valuable resource, and good water quality is the basis of ecosystem stability and diversity. The EU’s Water Framework  Directive [10] applies in the UK and in theory makes “good status” of all water bodies an essential element of improving water quality [11]. River Basement Management Plans are central to that aim. Surface waters are assessed against  their chemical and ecological status.  Monitoring is essential. Water quality improvements were undertaken over many years based on tackling point sources of pollution such as discharges from sewage treatment works, ultimately discharge was consolidated  and regulated at water catchment level. Today the raw statistics, however, are troubling.  ENDS, an environmental service publication, in May 2021, noted that “untreated sewage was discharged into England’s waterways for a total of 3.1 million hours in 2020”. There were  “ more than 400,000 times when water firms pumped raw sewerage into English waters. The Environment Agency, the main regulator of sewage discharges, noted that the number of spills had increased from 2019 when there has been 292.864 spills. In  a recent case brought by the Environment Agency  in July 2021 Southern Water was fined a record £90 million for  discharging between 16bn and 21bn litres of raw sewage into the environment. The company had already received 168 previous offences and cautions [12]. Partly, as a consequence, concerns over the system of self-regulation that allows a margin of discretion to water companies, has grown. The systems of monitoring and regulation may not  accurately reflect levels of discharge.

Concerns are growing that the effectiveness of fines and penalties leaves much to be desired. Large profitable water companies are resilient to the threat of fines and “game” the outcome according to cost and benefit. In the case of Southern water profits for 2019 were £213 million. The damage to wildlife and their supporting infrastructures from the discharges may be impossible to calculate.  Strict standards are expensive and enforcement often inadequate as water companies change strategies. Even if the companies draw the money for the fines from company profits and not directly from water bills there  appears to be little disincentive for  bad practice. In fact the water companies have a degree of latitude surrounding storm overflows – but this is capable of being too easily an adaptative tool to facilitate companies.

The causes of pollution are not confined to sewage. Pollution from farming and agricultural produce is also a major contributor to water pollution. There are wide ranging pollutants, including pesticides and  fertilisers.  Soils and water are carefully linked in terms of pollution controls over nutrients,  the use of sheep dip and sediment ingress into waterways. Agricultural pollution is a serious source of pollutants. Recently, the Environment Sectary has insisted that the new environmental land management schemes will include  water quality and biodiversity. These schemes are due to replace the EU subsidy scheme [13].

What is to be done?  The question has been posed over time, not least with the publication of Rachael Carson’s ,Silent Spring [14] in 1962. Many environmentalists are looking at new approaches to this age-old problem.  The Earth Law Center’s Universal Declaration of River Rights offers a useful Universal Declaration of the Rights of Rivers [15]. This is a significant template on which to inform and educate the public, provide access to resources for local communities and indigenous peoples and enhance the respect due to river ecology. Testing laws through legal action in the courts has registered some success but it is limited. Giving nature rights and communities rights to protect nature has developed from a variety of ideas in a wide -ranging number of countries – from  Ecuador to New Zealand.  Nature’s rights over UK rivers has  some advocates who see that such rights empower and enhance NGOs and local communities to take responsibilities for nature. The NGO Lawyers for Nature advances the idea of nature rights in the UK. Attractive though that  this might be, there are some doubts that such a strategy will work.  In the UK , both Human Rights and Judicial Review are the subject of two Government reviews, with the  prospect for reduction or restriction in the currently available  rights to go to court are likely. The Judicial Review and Courts Bill published on 21st July 2021 highlights the possibility of limiting access to courts for many litigants. It might provide mechanisms for the delay for government action to be overturned and might postpone the point at which unlawful action is declared unlawful.  The  Human Rights Review is eagerly awaited. In that context, this makes the idea of giving rivers and waterways the natural rights that they deserve highly problematic, if the expectation is that such rights will provide access to legal redress in the courts. The much- delayed Environment Bill  (2019-21) should achieve some important steps.  Storm outflows are covered in the Bill. Three new duties have been added to the Bill recently:

• A duty on the government to produce a plan  by September 2022 to reduce sewage discharge from storm overflows;

• Reporting duties on the government to report to Parliament on progress on implementing the plan;

• A duty on water companies to publish data on storm overflow operation on an annual basis.

The precise wording of the new duties will be critical, but this leaves the Environment Agency to police and regulate the water companies with costs pressure and because of enforcement duties. Welcome though the various duties may be , they fall well short of improving the water quality of rivers. The House of Commons  Environmental Audit Committee is holding an inquiry into the measures needed to improve water quality in rivers. Its findings are likely to be significant for designing the main strategies needed to control pollution. In England, one major factor that needs to be addressed is the largely self-regulatory form of self-reporting by water companies, that has arguably not been as effective as it was hoped. Prior to 2015 only sensitive coastal storm overflows discharging into bathing and shellfish wasters were monitored.  Plans for all outflows to be monitored, will not be complete until 2023. Water companies, as operators, have existed under the Self-monitoring (OSM) since 2009. Improvements in the monitoring of self- regulation are being planned [16].

A holistic approach is needed to protect our water heritage and resources. The Environment Agency in its recent report: Issues of Environmental Justice [17] highlights that social and economic inequalities pervade poor environments meaning that the worst social conditions are linked to poor environment including poor water resources. Racial inequalities are also clear with access to natural green space limited  adding to social injustice. It is likely that such injustices will grow and social inequality will deepen, as a consequence of climate change [18]. Improving regulation and public awareness is essential, addressing the commercial  culture of water companies is also required. Political and economic pressure  desirable. Accrediting rights to rivers and nature with the expectation that this will lead to better enforcement arrangements gives an optimistic expectation that the idyllic vision of the past might become a contemporary reality. This is a step worth taking.

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[1] Charlotte Klonk, Science, and the Perception of Nature: English Landscape Art in the late Eighteenth andearly Nineteenth Centuries Yale university, 1996.

[2] William Gaunt, English Painting (London: Thames andHudson,1985).

[3] Simon Schama, Landscape and Memory (London: Collins, 1995)

[4] Boyd Hilton, A Mad, Bad, and Dangerous People? England 1783-1846 (Oxford: ClarendonPress,2008).

[5] See: The Museum of London and the story of “Breathing in London’sHistory: from the great Stink to the great Smog” ( 24th August2017). Also see: Simon Schama, The Powerof Art London:  and Simon Schama, Landscape and Memory London:

[6] House of Commons Library, Briefing Paper Number CBP 77246 Water ( 26th July 2018).

[7] https://www.gov.uk/government/publications/state-of-the-environment

[8] ENDS Report 556 ( July 2021).

[9] ENDS update (19th July 2021).

[10] Daan Boezeman at al, “ Agricultural Diffuse Pollution and the EUWater Framework Directive: Problems and Progress in Governance” MDPI (2020)  vol 12 2590.

[11]  B. Grizzetti et al, “How EU policies could reduce nutrient pollution in European inland and coastalwaters”. Global Environmental Change  69 ( 2021) 102281.

[12] The Guardian 9thJuly 2021.

[13] ENDS notes 22nd July 2021.

[14] Rachael Carson, Silent Spring (London: Penguin 1092)

[15] https://www.earthlawcenter.org/river-rights

[16]  Environment Agency, Written Evidence submitted by the Environment Agency  to the House ofCommons Environmental Audit Committee ( February, 2021),( WQR0029).

[17] Environmental Agency, Issuesof Environmental Justice  July 2021.

[18] https://www.gov.uk/government/publications/state-of-the-environment

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