1.11 It is important to note the particular effect of paragraph 1(d) of the 2010 Order - where restoration of the harm arising from the offence is not possible, action that will secure equivalent benefit or improvement to the environment – which is the ‘prescribed description referred to in section 50(3)(d) of the 2008 Act. [...] 6.8 On restoring the environment or providing for ‘equivalent benefit’, slightly paraphrasing the requirements for EUs as set out in the 2010 Order and the EPR 2016, the Agency says it requires that the offer of payment to a third party “protects, restores and enhances the natural capital of England and where possible meets the objectives the breached legislation was trying to achieve”.48 6.9 Howe. [...] “In the case of issues caused to rivers, it will be for the Environment Agency to decide if an Enforcement Undertaking can be accepted, if it can, the person or company who caused the damage must provide funds to a charity, such as Calder Rivers Trust, to support the delivery of environmental improvements – either at the exact place of the incident, or in the case of rivers – within the same catch. [...] 8.10 They also noted the lack of accountability of eNGO providers for ‘equivalent benefit’ - “the providers of the community benefit have a relationship with both the offenders and the regulator: the providers need to comply with the promises they had given regarding the environmental project they put forward as part of the undertaking” and ask the question “to what extent are both the regulator a. [...] This is because there is no clarity on who is party to the contract: is it the provider and the offender who is not supposed to benefit from the project? Or is it the provider and the Environment Agency? Since the community benefits are delivered as part of an enforcement process responding to a criminal offence, this implies that the contract is with the Environment Agency.
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