The UK government, its water regulator, and the Environment Agency appear to be up to their necks in the proverbial, after conclusions drawn by the Office for Environmental Protection suggest that each could be facing court over their failures to tackle sewage dumping in England.

An investigation carried out by the UK watchdog has found that the government’s Department for Environment, Food and Rural Affairs (Defra), the Environment Agency (EA), and Ofwat (Water Services Regulation Authority) had all failed to stop water companies from discharging sewage into rivers and seas in England outside of the current permits of UK law.

Those laws in England currently allow water companies to spill sewage into rivers and seas only during exceptional circumstances such as extreme weathers, like heavy rains. The reality of the situation, however, is that human waste is routinely dumped in waterways, even when it’s not raining. And – according to campaigners – have been “for years”.

Across much of the UK, sewage networks are set up as a ‘combined system’, meaning sewage water and surface run-off water flow into the same pipe system before travelling to a treatment plant. However, when the sewage system becomes overloaded – due to heavy rainfall, for example – water companies are allowed to use sewage overflows, including Combined Sewer Overflows (CSOs) to discharge untreated human sewage and waste water into the environment.

However, water companies have failed over the years to update their sewage systems to stop this from happening, while both the government and the water regulator, Ofwat, have legal duties to ensure water companies spill sewage only in extreme circumstances.

“The core issue identified in our investigation is the circumstances in which the regulatory system allows untreated sewage discharges to take place,” said Helen Venn, the OEP’s chief regulatory officer. 

“We interpret the law to mean that they should generally be permitted only in exceptional circumstances, such as during unusually heavy rainfall. This is unless an assessment of the CSO concludes that the costs to address the issue would be disproportionate to the benefits gained.

“We will decide next steps when we have considered the responses to these decision notices. That could include court action.”

The issue was first brought to the Office for Environmental Protection (OEP) two years ago, when the environmental campaign group, WildFish, lodged the complaint. The OEP had been established one year prior to replace the role the European Union had played in regulating and enforcing environmental law in the UK.

Guy Linley-Adams, a solicitor at WildFish, said: “The OEP has achieved a great deal here. They have clarified that much of the sewage pollution plaguing English rivers must now finally be brought to an end under pre-existing laws.

“It is now clear that Ofwat has a duty directly to enforce the 1994 law against water companies, which it has failed to do over the decades. The Environment Agency also has to secure compliance with the 1994 law by tightening the terms of the permits it issues to water companies under the Environmental Permitting Regulations 2016.”

Notice has now been issued by the OEP to Defra, Ofwat, and the Environment Agency detailing the findings and the steps that each needs to take to correct the wrongdoings. All three have been given two months to respond and confirm the actions they will take. If they do not do so, the watchdog could take them to court.

The OEP investigation concluded that Defra had failed to comply with environmental law on three counts, compounded by a failure to draft guidance for water companies and regulators which did not reflect the legal extent of sewerage undertaker duties; failure to amend or replace the guidance after a relevant Court of Justice of the European Union decision in 2012; and misunderstanding its legal duty under environmental law to make enforcement order.

Meanwhile, Ofwat – it has been concluded – failed on two counts by not taking proper account of environmental law with regards to duties on sewerage companies and its duty to make enforcement orders, and then failure to exercise that duty.

Finally, the Environment Agency was found to have failed on its duty to take proper account of environmental law in devising guidance relating to permit conditions and then failing to carry out permit review in relation to discharges from CSOs. 

Linley-Adams, continued: “The OEP has delivered a broadside. However – alongside ensuring that his Department and the two regulators now implement and comply with the existing law (as the OEP has indicated they must) – the Secretary of State has a golden opportunity to become the one who actually tackles the sewage crisis head on.

“It will take courage and skill to grab the issue by the horns and solve it. We will be watching  and we trust, so will the OEP.”

Responding to Oceanographic Magazine’s request for comment, a Defra spokesperson, said: “For too long, water companies have pumped record levels of sewage into our rivers, lakes, and seas. In just five months, this government has acted decisively to refresh outdated guidance to make extremely clear our expectations around storm overflows.

“We welcome the OEP’s acknowledgement that this government is rectifying the issues identified. We will carefully consider consider the OPE’s allegations of breaches before formally responding in due course.”

Defra has claimed it will be placing water companies under special measures through the Water Bill which now includes, it noted, “new powers to ban the payment of bonuses for polluting water bosses” while bringing criminal charges against lawbreakers.

“We’re also carrying out a full review of the water sector to shape further legislation that will transform how our water system works.”

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