Environmental campaigners are threatening the water services regulation authority in England and Wales with legal action over its failure to take action to prevent untreated sewage discharges into rivers by water companies.
Lawyers for Wild Justice believe Ofwat has a duty under law to ensure sewage treatment plants avoid releasing polluting discharge into watercourses.
Leigh Day, acting for the group, argues correspondence with the regulator shows that the authority is failing to take the necessary monitoring and enforcement action against water companies. They say the failure to act creates a threat to wildlife from the excessive nutrient levels in rivers and other water bodies caused by the pollution.
While the Environment Agency issues permits to water companies to deal with sewage, Ofwat also has powers to ensure sewage plants are designed and operated correctly, lawyers argue, under the Urban Waste Water Treatment (England and Wales) Regulations 1994 and section 94 of the Water Industry Act 1991.
Carol Day, a solicitor from Leigh Day, said: “While the public are rightly frustrated with the Environment Agency for an apparent reluctance to prosecute water companies for breaches of permits, there’s an underlying question as to whether our Victorian sewage treatments plants are still fit for purpose.
“The responsibility for ascertaining the position on that – and for requiring action where they are not – lies with Ofwat but it appears to be doing nothing to solve that underlying problem. Our clients hope that highlighting Ofwat’s duties in this regard will ensure the necessary steps are taken to upgrade our outdated sewage plants.”
Environment Agency data shows water companies in England discharged raw sewage into rivers and seas for more than 2.7m hours in 2021, in 372,533 incidents.
A public outcry at the scale of raw sewage discharges, which are supposed to take place only after exceptional rainfall, has forced the government to act, saying the level of releases are totally unacceptable. It is consulting on a plan to reduce discharges , promising that by 2040, 40% will have been eliminated. But campaigners say this the plan lacks urgency.
Wild Justice, founded by Dr Mark Avery, Chris Packham and Dr Ruth Tingay, wants to see Ofwat doing more to tackle the problem. “It’s not so much Ofwat as Ofwhere? They are missing in action. Our rivers and their wildlife need Ofwat to get active,” the organisation said.
It argues that the urban waste water treatment regulations require Ofwat to collect data about the design and operation of sewage plants. But the regulator has said in correspondence it relies entirely on data gathered for that purpose by the Environment Agency. Wild Justice says the agency has told them it has no direct function in monitoring or enforcing the obligations, which is a matter for Ofwat.
Wild Justice alleges Ofwat is entirely passive in relation to enforcement and has taken no steps to obtain information relating to compliance by water companies in relation to their sewage treatment plants.
Lawyers make the allegations in a pre-action protocol letter, the initial step before a threatened judicial review of Ofwat’s actions.
An Ofwat spokesperson said: “We have recently received a letter from Leigh Day on behalf of Wild Justice and we intend to respond to it fully in due course. We have not yet had an opportunity to do so and it would not be appropriate to comment further at this point.”
