Investigation highlights “possible failures” by Government to comply with environmental law over sewage

Possible failures to comply with environmental law by the Department for Environment, Food and Rural Affairs (Defra), the Environment Agency and Ofwat in relation to the regulation of combined sewer overflows have been identified by the Office for Environmental Protection.

The environmental watchdog announced its preliminary findings today (12 September), noting that the 3 organisations now have two months to provide a response before a final decision is made.

The Government has since said that it does not agree with the investigation’s initial interpretations, “which cover points of law spanning over two decades”. However, it added that it will “continue to work constructively with the OEP on this issue”.

The Office for Environmental Protection (OEP) launched its investigation after receiving a complaint alleging failures to comply with legal duties relating to the monitoring and enforcement of water companies’ management of sewage.

The watchdog noted that combined sewer overflows (CSO’s) have an “important role to play in the system” as they prevent sewage backing up into people’s homes when the sewage network is overloaded.

However, “discharges from these overflows harm the freshwater, coastal and marine environments, and can also have adverse impacts for people who use them”, it added.

The investigation revealed that there may have been failures to comply with environmental laws by all three of the public authorities, as summarised by OEP below:

• For the Environment Agency, the potential failures relate to the requirements of urban waste water legislation and the Agency’s resulting role in devising guidance, setting permit conditions for CSOs, and reviewing and enforcing of such conditions. 
• For Ofwat, the potential failures relate to its interpretation of sewerage undertakers’ duties to effectually deal with sewage and Ofwat’s duty to make enforcement orders where sewerage undertakers fail to comply with such duties.
• For Defra, the potential failures relate to the requirements of urban waste water legislation, water quality legislation, and Defra's duty to make enforcement orders where sewerage companies fail to comply with their own duties to effectually deal with sewage.

The OEP has issued Information Notices to each of the organisations setting out the details of the possible failures. 

Helen Venn, the OEP’s Chief Regulatory Officer, said: “As a result of our investigations so far, we think there may have been misinterpretations of some key points of law. The core of the issue is that where we interpret the law to mean that untreated sewage discharges should generally be allowed only in exceptional circumstances, such as during unusually heavy rainfall, it appears that the public authorities may have interpreted the law differently, permitting such discharges to occur more often.  

“This then has consequences for the regulatory activity that follows. The guidance provided by Government to regulators, and the permitting regime they put in place for the water companies, possibly allow untreated sewage discharges to occur more regularly than intended by the law without risk of sanction. This is what has created the possible failures to comply that we have identified.

“Clarifying this point will ensure future efforts to improve water quality are built on a solid foundation. We will consider the responses from all three public authorities in detail before deciding next steps.” 

In response to the announcement, An Ofwat spokesperson said: “We welcome the OEP's considerations, particularly on the clarity of responsibilities for the protection of the environment and we will work with them as their investigation moves forward.

"Our position at Ofwat remains clear, water companies' performance on the environment is simply not good enough. We have pushed companies to take urgent action to cut sewage discharges, have imposed fines of £250m in the last few years alone and we are currently running our biggest ever investigation into six companies on how they manage sewage treatment works and sewage discharges."

The regulator revealed that it has recently announced new measures to penalise companies that fail to fully monitor their storm overflows.

A Defra spokesperson said: “The volume of sewage discharged is completely unacceptable. That is why we are the first government in history to take such comprehensive action to tackle it, driving forward more investment, stronger regulation and tougher enforcement - and it’s why we are introducing a legally binding target to reduce storm overflows.

“While we do not agree with the OEP’s initial interpretations, which cover points of law spanning over two decades, we will continue to work constructively with the OEP on this issue.”

An Environment Agency spokesperson said: “We welcome this investigation from the Office for Environmental Protection and we share their ambition to drive improvements in water quality.

“We will always take action against companies that do not follow the rules or those that are deliberately obstructive. We have secured fines of over £150 million and are conducting our largest ever criminal investigation into potential permit non-compliance at sewage treatment works.”

Lottie Winson