Regulating sewage discharge

The Office for Environmental Protection (OEP) has concluded that there have been failures to comply with environmental law by the Department for Environment, Food and Rural Affairs (Defra), the Environment Agency (EA) and Ofwat following an investigation into the regulation of network combined sewer overflows (CSOs).

The OEP has sent each of the public authorities a decision notice setting out its findings and the steps that it considers should be taken to put matters right.

The public authorities now have two months to respond and confirm whether they are going to take those steps. Failure to do so could result in court action.

‘During our investigation into the regulation of network CSOs by the three public authorities and intensive engagement with those bodies, we have seen positive steps taken to address the issues identified.  
 
‘These steps build on the production of the Storm Overflow Discharge Reduction Plan (SODRP) and include Defra’s recent consultation on updated guidance for regulators and water companies, as well as the EA’s consultation on an updated Storm Overflow Assessment Framework (SOAF), which includes permit conditions relating to spills from CSOs. Additionally, Ofwat has issued draft enforcement orders to three water companies and continues its investigations into all other water companies. 
 
‘The core issue identified in our investigation is the circumstances in which the regulatory system allows untreated sewage discharges to take place. 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. While the public authorities are now taking steps to ensure their approaches are aligned and reflective of the law, we have found that this has not always been the case. The decision notices formally clarify what we have concluded is required.  
 
‘We will decide next steps when we have considered the responses to these decision notices. That could include court action.’

HELEN VENN
OEP’s chief regulatory officer

Failures from Defra

The OEP investigation has concluded that there have been three failures to comply with environmental law by Defra.

It says it has failed to take proper account of environmental law by drafting guidance for water companies and regulators which did not reflect the true legal extent of sewerage undertaker duties; failing to amend or replace the guidance after a relevant Court of Justice of the European Union (CJEU) decision in 2012; misunderstanding its legal duty under environmental law to make enforcement orders; failing to exercise its duty under environmental law to make enforcement orders and failing to discharge its duty to secure compliance with environmental law relating to emissions controls.