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.
Helen Venn, the OEP’s Chief Regulatory Officer, said: “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.”
Defra
The OEP investigation has concluded that there have been three failures to comply with environmental law by Defra [1]:
- Failing 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
- Failing to discharge its duty to secure compliance with environmental law relating to emissions controls
The recommended steps to remedy, mitigate or prevent reoccurrence of the failures include revising the guidance, ensuring delegated responsibilities are carried out properly, agreeing Memorandums of Understanding (MoUs) with the EA and Ofwat and ensuring that permits for CSOs are amended appropriately.
In relation to the first failure identified above, the OEP acknowledges Defra's recent consultation on updated guidance for regulators and water companies and awaits the outcome of this process. The OEP considers that the third failure listed above ended on 31 December 2020 following the UK’s withdrawal from the European Union.
Ofwat
The OEP investigation has concluded that there have been two failures to comply with environmental law by Ofwat [2]:
- Failing to take proper account of environmental law with regards to duties on sewerage companies and its duty to make enforcement orders.
- Failing to exercise its duty under environmental law to make enforcement orders.
The recommended steps to remedy, mitigate or prevent reoccurrence of the failures include updating enforcement guidance, agreeing and publishing a new MoU with the EA, ensuring relevant responsibilities are carried out properly and making sure that appropriate assessments have been carried out on CSOs and time-bound plans are in place for any improvement schemes to be implemented.
The OEP considers that Ofwat's approach now takes proper account of environmental law and that the first failure identified above is no longer ongoing. Regarding the second failure, the OEP acknowledges the draft enforcement orders proposed by Ofwat and awaits the outcome of its consultation process and ongoing investigations.
Environment Agency
The OEP investigation has concluded that there have been three failures to comply with environmental law by the EA [3]:
- Failing to take proper account of environmental law in devising guidance relating to permit conditions
- (As a result of the point above) setting permit conditions that were insufficient to comply with environmental laws
- Failing to exercise permit review functions in relation to discharges from CSOs
The recommended steps to remedy, mitigate or prevent reoccurrence of the failures include updating the Storm Overflow Assessment Framework and any guidance relating to CSO permit setting, agreeing MoUs with Defra and Ofwat, ensuring CSO permits comply with the appropriate regulations and assessment findings.
In relation to the first failure identified above, the OEP acknowledges the EA’s recent consultation on an updated SOAF and awaits the outcome of this process.
The OEP investigation was launched in response to a complaint received by Salmon & Trout Conservation UK, now known as WildFish.
Notes
References
1: ss.18 and 94 of the Water Industry Act 1991 (as supplemented by the Urban Waste Water Treatment Regulations 1994 which implement the Urban Waste Water Treatment Directive 1991 ((91/271/EEC)) and the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017 which implement the Water Framework Directive 2000 (2000/60/EC).
2: ss.18 and 94 of the Water Industry Act 1991 (as extended by the Urban Waste Water Treatment Regulations 1994).
3: The Urban Waste Water Treatment (England and Wales) Regulations 1994, the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017 and the Environmental Permitting (England and Wales) Regulations 2016.
NB Section 31 of the Environment Act 2021 states that for the purposes of an investigation, the definition of ‘failing to comply with environmental law’ means the following conduct by a public authority: (a) unlawfully failing to take proper account of environmental law when exercising its functions; (b) unlawfully exercising, or failing to exercise, any function it has under environmental law.
Background
The OEP launched an investigation into the roles of Ofwat, the Environment Agency and the Defra Secretary of State in the regulation of combined sewer overflows (CSOs) in England, in June 2022. This is a Statutory Investigation under s 33 Environment Act 2021. The aims of the OEP investigation are to clarify the roles and responsibilities of the public authorities and to determine whether they have failed to comply with their respective duties. If there have been failures, the OEP will seek to improve regulation in order to achieve long term improvement in water quality.
In September 2023 the OEP sent Information Notices to each of the three public authorities setting out details of possible failures to comply with environmental law in relation to the regulatory oversight of CSOs. The next stage in our enforcement policy is giving decision notices. A decision notice is a formal document which sets out our conclusions on a public authority’s failure to comply with environmental law, why we think that failure is serious, and the steps we consider the public authority should take in relation to that failure. Public authorities must respond in writing to decision notices, including to confirm whether they will take the steps we require. We may only issue a decision notice where we are satisfied, on the balance of probabilities (that is, that it is more likely than not), that the public authority has failed to comply with environmental law, and where we consider that the failure is serious. We may take further action if a public authority does not comply. The OEP’s strategy and enforcement policy can be found here: Our Strategy and Enforcement Policy 2024 | Office for Environmental Protection
Under section 41 Environment Act 2021 the OEP must publish a statement where it gives a decision notice. This public notice is given pursuant to section 41 of the Environment Act 2021
Combined Sewer Overflows
CSOs are a feature of most sewerage systems where surface water (e.g. rainwater from roofs, driveways, and roads) and foul flows (e.g. sewage and other effluent) are combined in a single pipe, and they do have an important and necessary function.
They are designed to operate in response to rainfall and other acute precipitation and runoff events where the combined sewer reaches its capacity, and a release is needed to prevent the capacity of wastewater treatment works being overwhelmed, or else sewage backing up and flooding properties.
The OEP has focused on ‘network CSOs’ which are overflows on the sewerage network rather than those found at sewage treatment works. The OEP excluded CSOs at sewage treatment works and inlets from its investigation. There are two main reasons for this. Firstly, there is a live investigation by the EA into potential failures of water companies to have sufficient storage or treatment capacities at sewage treatment works, as required by their environmental permits. Secondly, the treatment of sewage before discharge is absent from CSOs on the network. This removes an additional area of complication, helping to keep the investigation streamlined and manageable. Any conclusions from network CSOs will be considered to see if they could have applications that could be relevant to other types of CSOs.
