1. Tony Grayling s Post Meeting Note following England and Wales Fisheries Group Meeting

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1 Dr. Paul Leinster CBE Environment Agency Millbank Tower 24/25 Millbank London SW1P 4LX CC: Richard Benyon MP, Fisheries & Environment Minister George Hollingbery MP, Chairman of All Party Parliamentary Angling Group Richard Leafe, Chairman of England & Wales Fisheries Group Ian Barker, Head of Land and Water Geoff Bateman, Head of Fisheries Wednesday, 05 December 2012 Dear Paul, Hydropower Further to my letter of 2 October and your reply of 17 October, and my reminder of 19 th November, I am still awaiting the promised offer of dates for a meeting with you. Given the timescales, it is unlikely that we will get a meeting with you by the end of the year and therefore there are three key issues that I would like to raise with you in the interim. I have numbered them below and summarised my requests for action in bold italics. 1. Tony Grayling s Post Meeting Note following England and Wales Fisheries Group Meeting I would like to complain formally on behalf of the Angling Trust and the Salmon & Trout Association about a statement made by Tony Grayling. In the draft minutes of the England & Wales Fisheries Group, there is a note which was added after the meeting to explain the process of deciding to delay production of new Good Practice Guidelines (GPGs) which are fit for purpose. It reads as follows: TG agreed to find out the circumstances surrounding earlier progress towards revising the flow standards and to inform the group as to why these were not adopted. He explained the Agency has been lobbied heavily on hydropower, but that it has not given favour to any party. The proposed way forward, ie carrying out a further consultation, is consensual. Following the meeting, TG provided the following explanation:

2 "I have looked into the circumstances surrounding earlier progress towards agreeing revised standards made by the Hydropower Working Group (HWG). It seems that in late November/early December 2011 it did look as if the HWG might be getting close to agreement on proposals but after much discussion it was the representative of the Angling Trust, supported by the representative from the Salmon and Trout Association who led with arguments against the emerging proposals on flows, which had been developed in some detail. The position of the British Hydropower Association was slightly less clear. They didn t like the shift from the existing Good Practice Guideline standards to something that appeared to them less certain and quite possibly requiring flow splitting. But they didn t absolutely rule it out. In fact, the proposals discussed at that time are now the core of one of the options on which we will consult in the new year." I have discussed this interpretation of events with Roger Furniss, Alan Butterworth and Janina Gray and they are all absolutely clear that it is incorrect. They had encouraged the Agency to address the issue of flows earlier in the GPG revision process, because it is the most complicated and thorny issue, but instead the 'less controversial' elements of the review were addressed first. This meant that there was some agreement on some points, but the issue of flows was always the elephant in the room. For hydropower to generate any meaningful amount of power on our country s relatively small rivers, a very large proportion of the flow has to be diverted into the turbines. However, by doing this, they have an unacceptable impact on the ecology of rivers. Therein lies the nub of this issue. Flows were therefore not discussed in any detail until the meeting on the 23rd September. Our team presented our evidence-based thoughts and reiterated comments that the flow matrix in GPG1 was not evidence based and was therefore unfit for purpose. This is a position which was supported by the Agency s own appointed independent expert back in There was a further special "flows" meeting on the 15th November which achieved nothing, but then another meeting on the 29th November at which an EA hydrologist - Gideon Carpenter - presented his thoughts on environmentally acceptable flows. They were a distinct improvement on GPG1 and offered the variability which we had been advocating. However, at the meeting on the 7th December we were presented with a variant of GPG1 which offered no meaningful improvement. The minutes actually indicate that it was Janina Gray, supported by Alan Butterworth, who voiced her consternation. We were never close to agreement and to infer that we "led with arguments" at the last minute is utterly untrue and we demand a retraction of this allegation. Our team had been quite clear from the outset what our concerns were, and that the new GPG should adopt a position with all elements so that compliance would ensure an environmentally acceptable option in most cases; if either the developer or objectors wanted variance from this standard, they would have to provide clear evidence. GPG1 flows clearly did not meet this requirement. The delays with this process are completely unacceptable. For your information I have attached a very helpful summary of the shambolic and dithering approach that has been taken by your organisation to regulating an industry which has the potential to do huge damage to our nation s rivers for generations. We demand a retraction of Tony Grayling s statement following the England and Wales Fisheries Group meeting and an apology for misrepresenting the views of our representatives. We also require an update of the latest position with the flows consultation, about which no further details have been provided.

3 2. Failure to Consider Fisheries Interests in Granting Impoundment Licences As you may be aware, Fish Legal has recently won an injunction to stop a hydropower turbine being installed on the River Trent at Sawley Weir. The developers were not only granted a permit by the Agency which inexplicably allowed them to kill up to 10 adult salmon and 100 coarse fish in a 24 hour period without fear of enforcement action, but the scheme was also granted an impoundment licence which utterly failed to take fisheries into consideration. By granting this licence the Agency gave a private company a statutory defence to any civil claims against it for damaging the fishery caused by changing water levels and flow rates. The granting of the impoundment licence meant that our legal claim on behalf of the club was forced to tiptoe its way around the fact that for much of the year there will be little or no water in its prime piece of fishing, and to concentrate instead on interference with the actual process of fishing such as setting up, casting, retrieving, playing and landing fish directly resulting from the physical construction itself (fencing, screening etc.). The fact that we won, even though our hands were to some extent tied by the Agency granting a licence to the scheme, demonstrates how inappropriate the granting of that licence was. The Environment Agency is duty-bound to recognise the value of an angling club s fishing rights and the need to consider and give them due weight, yet at Sawley when granting the impoundment licence, its consideration of anglers interests was limited to a single (unclear) sentence merely hinting at the substantial impacts arising from the flow changes: Part of Pride of Derby s fishery lies within the weir pool affected i.e. increased periods of reduced flow during operation of the turbine. This level of attention is utterly inadequate from an organisation which has a statutory duty to maintain, improve and develop fisheries. Indeed the statutory guidance to the Agency is to interpret its fisheries duty as, among other things, a duty enhance the social value of fishing as a widely available and healthy form of recreation. It is striking that at Gunthorpe Weir, not far downstream of Sawley, the same reticence is evident in the Agency s more recent permit determination: The Nottingham Angling Association fishery lies within the section of the weir pool i.e. there will be periods of reduced flow and reduced water velocity during the operation of the HEP scheme. In assessing the application we have to have regard to protecting the interests of NAA. Nothing more is then said on the subject, and the licence was granted. We believe that these incidents indicate that there is a fundamental failure in the way that the Agency s licensing system has been established and that the national permitting centres that have been established do not consult properly with regional fisheries officers. We have been told this by regional fisheries officers and the cases above indicate that it is true. We urge you to address this situation as a matter of urgency and to instruct your permitting centres to consult in every instance with regional fisheries officers and to confer with riparian owners and fishing clubs who may own or lease waters in the area in order to ascertain how the development might affect their fishing. 3. Salmon Index Rivers and Hydropower There are currently 3 salmon index rivers in England and Wales - the Tamar, Lune and Welsh Dee (the Tyne is also being evaluated as a fourth). These are rivers with calibrated fish counters and are used to provide a long term dataset to evaluate the status of the river s, and to a lesser extent the regional, migratory salmonid populations. One of the counter sites - the Lune at Forge weir - is being threatened

4 by a hydropower scheme. This scheme was temporarily shelved, but has now been granted planning permission by Lancaster City Council. It now transpires that a scheme for the Dee site at Chester is at an early stage, but is being promoted by the Council. However these schemes are designed, they will pose a serious threat to the long term continuity of this data, and so could jeopardise the Agency s ability to manage salmon stocks in England and Wales and meet the UK s obligations to NASCO. It would also mean that years of work, funded by anglers and taxpayers, would be wasted. Can I have your assurance that the Agency will not be issuing licences to schemes at these counter sites and that it will write to the promoters and developers explaining why not so that no further public money will be wasted on developing and promoting these plans? I look forward to hearing from you by return with answers to my three points above and from Carol with a date for a meeting. Yours sincerely, Mark Lloyd Chief Executive, Angling Trust Mark.lloyd@anglingtrust.net also on behalf of: Ivor Llewelyn, Director (England and Wales), Atlantic Salmon Trust; Paul Knight, Chief Executive, Salmon & Trout Association;

5 Appendix: Potted history of delays with Hydropower Good Practice Guidelines revision 2007 Fisheries Ireland publishes Guidelines on Small Scale Hydro Schemes and Fisheries, including flow conditions 10 November 2010 Angling and Fisheries NGOs set out expectations of GPG Review, including flows 15 December 2010 Dr Solomon produces critique of GPG1, including flows following request by EA (Johnson and Storey) in October An earlier draft with the same general findings was first available to the EA in August 2009, ie over four years from current anticipated publication of GPG2 March 2011 Tony Grayling writes to Roger Furniss inviting AT and other fisheries NGOs to join Working Group April 2011 SNIFFER Report of Literature Review on Impact of Run of River Hydro Schemes on Fish Populations published. Includes Recommendation that flow conditions are assessed on a risk-based approach to account for uncertainty of likely impacts of flow regulation on fisheries and the precautionary approach in relation to management of flows in relation to fish and fisheries is adopted - EA represented on SNIFFER Group by John Aldrick 5 April 2011 Group agrees to address priority issues including flows 6 May 2011 Drafting Sub-group agrees to draft consultation questions on range of matters, including flows; BHA present 18 May 2011 Drafting Sub-group agrees consultation question on flows subject to provisos re protected areas, and need for question to be open, ie allow respondents to suggest other flow options; BHA present 20 May 2011 Letter from Leinster to Lloyd including intention to publish revised GPG later that year (confirms EA Project Group Timetable and Meeting of Group on 5 April) 24 June 2011 EA produces timeline, again confirming one consultation (July September 2011) and final publication of results of consultation and GPG2 in December July 2011 second draft of GPG2 produced, ie still on course for December 2011 publication 3 August 2011 flow included in list of issues for priority attention 6 October 2011 Group informed of delay in publication to February Minutes also clear that GPG was produced in consultation with the industry but GPG2 will be different with, hopefully, more support from all parties even if it does not reach agreement on everything. 5 December 2011 Updated Project Plan still has publication on 27 February December 2011 Version 8 of Low Flows Copy for GPG2

6 9 December 2011 Meeting of full Working Group focuses on flow issue and difficulty of reaching agreement in the Technical Group. The Minute is clear: The Technical Group will need to work out the final details for this proposal and we will seek to reach a compromise. If we are unable to reach agreement then the EA will have to make a decision. PG expressed thanks for everyone s work on this. 24 February 2012 Meeting of full Working Group again focuses on flows and difficulty of reaching agreement 2 March 2012 EA Directors consider flows issue and Ian Johnson tasked to progress. 24 April 2012 EA expects to move forward with a clear position on flow criteria for hydropower following Directors meeting on 3 May 2 May 2012 AT and S & TA write to Leinster ahead of meeting of Directors, including support for latest position on flows 3 May 2012 EA Directors consider GPG Review 8 August 2012 Working Group considers draft of new consultation on flows which includes summary of responses to first consultation which closed in September Draft refers to second consultation in Group agreed that publication of the summary of responses should be delayed no longer. BHA representative questioned need for a second consultation given that interested parties are on the Group. Pam Gilder s last meeting as Chair, replaced by Tony Grayling October 2012 Summary of Responses to 2011 Consultation finally published. 2 October 2012 ML writes to Leinster re new timetable and lack of consideration by Working Group.