Filthy sewer overflow scandal: Ministers may have breached environmental laws, warns eco-watchdog

Environment Secretary Therese Coffey was in the dock on Tuesday after England’s eco-watchdog warned her department may have breached the law over sewer outflows.

The Office for Environmental Protection said it had identified possible failures to comply with environmental law by the Department for Environment, Food and Rural Affairs (Defra), the Environment Agency and regulator Ofwat in relation to the regulation of combined sewer overflows (CSOs).   

The OEP launched an investigation into this area after receiving a complaint alleging failures to comply with legal duties relating to the monitoring and enforcement of water companies’ management of sewage.   

Combined sewer overflows (CSOs) can be key to preventing sewage backing up into people’s homes when the sewage network is overloaded.

But discharges from these overflows harm the freshwater, coastal and marine environments, and can also have adverse impacts for people who use them.

So, discharges should generally only occur in exceptional circumstances, the watchdog stressed.

The OEP believes that there may have been failures to comply with environmental laws by all three of the public authorities and it has issued Information Notices to each of them setting out the details of those possible failures. 

They include:

• For Defra, the potential failures relate to the requirements of urban waste water legislation, water quality legislation, and the Defra’s duty to make enforcement orders where sewerage companies fail to comply with their own duties to effectually deal with sewage.
• 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.

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.” 

Many of the relevant eco-laws were passed before Ms Coffey became Environment Secretary but her department rejected the OEP’s initial views.

A Defra spokesman 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.” 

But shadow environment secretary Steve Reed said: “Nothing represents 13 years of Conservative failure more graphically than the sight of stinking, toxic sewage pouring into our rivers, lakes, and seas.”

Liberal Democrat leader Sir Ed Davey added: “This damning report shows the Conservatives have repeatedly let water companies off the hook for dumping their filthy sewage into our rivers, lakes and beaches.”   

The public authorities have two months to respond to the Information Notices. The responses will allow them to set out whether they agree with the OEP’s view, and whether they agree or not, set out any proposed remedial action or practical measures to address issues.