New water pollution guidance: what land managers need to know

On Wednesday 18 June, Defra released two policy updates on agricultural water pollution regulations.

Defra updated its statutory guidance on the Farming Rules for Water (FRfW), which tells the Environment Agency (EA) how to enforce these frequently ambiguous regulations. The publication of this updated guidance is welcome and now in effect, and this article explains the key changes which could impact your business.

In addition to this guidance, Defra announced a comprehensive reform of the main agricultural water and air quality regulations. The CLA has lobbied for a comprehensive reform of these sets of regulations because they are complicated, conflicting, and lack clarity, so we are pleased to see that ministers are listening and acting. We will participate in a series of co-design workshops to determine the objectives sought through the reforms and the options for regulatory change. New rules are unlikely to come into effect until there is space in the parliamentary agenda.

The FRfW is the colloquial name for The Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018. These regulations restrict land managers from undertaking activities that would “give rise to a significant risk of agricultural diffuse pollution”. Some activities – like applying fertiliser or organic manure to waterlogged land and storing organic manure within 10m of a waterbody – are explicitly prohibited. Others are required, like planning all nutrient applications informed by soil sampling and analysis. However, the strength and weakness of the FRfW is that it relies on land managers, or their agronomists, to decide what counts as “reasonable precautions” against pollution.

The regulations non-exhaustively list things farmers must take into account, including the “needs of the soil and crop on that land”, weather conditions and forecasts, slope of the land, ground cover, proximity to waterbodies and water abstraction points, soil type, and land drains, as well as any other reasonable precautions. Whilst the regulations provide examples of such precautions like grass buffer strips, aerating compacted soil, undersowing, or cover crops, they do not include a test for what makes something reasonable.

Statutory guidance is the way the government instructs its regulators on how to enforce legislation. For the FRfW, it was particularly introduced to cover the lack of definition for the “needs of the soil and crop” because the Environment Agency (EA) and Defra had different interpretations of what this means.

These changes are a result of legal action which made it untenable for Defra to retain the former version – if you are interested in this context, please see details below.

Much of the guidance is unchanged, for example, on establishing green cover and nutrient management planning according to soil testing. The advice-first approach to enforcement remains unchanged. This means that, except in gross pollution breaches, if an EA inspector finds a farm is non-compliant, the farm will be given a deadline to become compliant before legal action begins.

The updated version is more explicit that the statutory guidance’s purpose is to inform the EA’s enforcement action, and that it has independence as a regulator. For land managers, this emphasises that the ultimate reference point for compliance is The Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018, and following the statutory guidance no longer provides the same level of protection against EA enforcement as before.

On the key phrase, “soil and crop need”, the new wording is as follows: “The needs of the crop and soil and the risk of diffuse pollution will depend on individual circumstances. The Environment Agency should take these into account when assessing plans. In all cases, land managers must demonstrate that they are planning to take all appropriate reasonable precautions to help mitigate against the risk of diffuse agricultural pollution.”

Defra has removed reference to annual or rotational planning for soil and crop need. It has also removed the section which allowed farmers to continue spreading manure where it would be “not reasonably practicable” to otherwise avoid raising the soil phosphorous index above target levels.

Moving away from farming by calendar date, the new version removes closed periods for spreading manures with high readily available nitrogen (RAN) contents. The EA is now explicitly reminded to factor in the soil type of the receiving land into its assessment of compliance.

Finally, Defra has clarified that farmers and landowners must use their nutrient management plans to demonstrate to the EA that they are compliant. The verb “plan” was ambiguous in the former statutory guidance, potentially indicating it was sufficient for land managers to intend to avoid pollution at the point of spreading. The new rules require farmers to have documented in advance their rationale for spreading in the context of the holistic risk of diffuse pollution.

What the updated guidance means for on-the-ground compliance is now less clear, although its publication ends speculation. It is ambiguous on the central question of whether crop and soil need means at the time of application. The removal of reference to annual planning suggests this is the case, but Defra has not stated it outright, and text elsewhere implies that the department recognises there are environmental and pragmatic reasons why manure applications are sometimes made non-concurrently with crop need.

In separate briefings, the EA has explained to the industry it sees the updated guidance as ‘business as usual’ – it does not change their interpretation or their advice-first approach. Land managers should expect relatively little difference in inspections, which is reassuring. It signals the industry should avoid panic in the short-term and instead take time to carefully plan nutrient applications and investments for the future.

The only position that is guaranteed as compliant is to apply nutrients where there is crop and soil need at the time of application (i.e., not in autumn unless there is demonstrable soil or crop N need, or on soils at or above target P index), and to document this in a comprehensive nutrient management plan at an individual land-parcel level, ideally endorsed by a FACTS-qualified agronomist. That said, this is still something of a grey area. The core responsibilities of the land manager are to take "all appropriate reasonable precautions… against the risk of diffuse pollution”, and to follow a rigorous nutrient management plan informed by soil testing. Autumn spreading is not explicitly ruled out. A FACTS-qualified agronomist is your best point of advice.

A solid nutrient management plan is essential for compliance – and even more important with the new statutory guidance. Yet, over 30% of farms inspected by the EA do not conduct soil testing or have sufficient evidence of having planned nutrient applications. To develop one, speak to an agronomist or see the tools listed as compliant in the guidance at Section 2.1.

The EA’s advice-first approach, with the welcome, now-explicit mandate to consider individual circumstances, should alleviate members’ concerns of immediate prosecutions following the updated guidance. If an EA inspection finds you noncompliant, it is important to stay calm and examine the deadlines the inspector gives. If these are not feasible to meet – for example, due to contractor nonavailability – communicate the reasons for this to the inspector, and they may be able to provide some leniency.

Nevertheless, the update reopens long-standing concerns that many farms cannot afford to upgrade their infrastructure or export their manure to become compliant without sustained support from government and the supply chain. Defra should reopen the Slurry Infrastructure Grant and learn from its previous rounds to help tenants to access it, also reforming the Natural England’s calculation of ammonia emissions.

If you have any concerns about what the change in guidance means, please get in touch with the CLA using the email address matthew.doran@cla.org.uk.

Defra was due to review the statutory guidance by September 2025 regardless, but it accelerated its timeline and the degree of revision after a High Court challenge brought by the campaign group River Action in 2024 against the EA. River Action’s challenge that the EA was not undertaking enough enforcement action was unsuccessful, but the case exposed that Defra and the EA have differing interpretations of what counts as “crop and soil need”, a key aspect of the statutory guidance.

Defra’s former interpretation allowed crop and soil need to be judged across the annual crop cycle for nitrogen and, implicitly, the full rotation for phosphorous, whereas the EA’s interpretation has always been that there must be a need at the time of application. EA inspectors had the option of using a different interpretation to the statutory guidance, and it was this factor which meant the High Court judge found no “misdirection or illegality” had occurred. However, the judge requested clarification of the correct interpretation from Defra, and it became untenable the statutory guidance to remain without amendment.

More recently, the Office for Environmental Protection (OEP), at the referral of WWF and Client Earth, began investigating whether Defra acted illegally by issuing the statutory guidance in the first place.