For years WildFish has been saying the system isn’t broken. Instead, what we need are regulators who have the mandate and backing of government to enforce under existing law.
And to prove that it can be done, Ofwat has been waking lately from its slumbers with a little more vigour than before and advertising its recent successes in nailing water companies, including the recent enforcement against Dwr Cymru Welsh Water at £44.7 million.
On the face of it, we have the necessary legislation (apart from a few tweaks) to deal with the problem of sewage and to push the water companies into compliance.
The ability of the lack-lustre and poorly managed regulators to deal with sewage was brought out into the open in our case against the Secretary of State for the Environment back in 2023 ((R (oao WildFish et al) v Secretary of State for the Environment, Food and Rural Affairs [2023] EWHC 2285 (Admin))). Although not finding that the soft-touch “Storm Overflows Discharge Reduction Plan” (SODRP) was unlawful, the judge made it clear that the SODRP simply did not deal with a very significant part of the sewage pollution problem in English and Welsh rivers caused by discharges that are already unlawful but clearly covered by regulatory laws in the Water Industry Act 1991 and the Urban Waste Water Treatment (England and Wales) Regulations 1994.
The case was also clear about the duties of Ofwat to enforce the law that only permits storm sewage to be discharged following exceptional rainfall.
WildFish followed up with a complaint to the Office for Environmental Protection (OEP) in June 2022 which then duly launched an investigation into whether Defra, Ofwat and the Environment Agency (EA) were doing their jobs properly under existing statutory duties on storm overflows by water and sewage companies. The OEP concluded that the regulators had indeed failed to implement well-established laws allowing sewage utilities to continue polluting rivers without acting to update works and provide sufficient capacity.[1]
The OEP then sent the regulators (EA, Ofwat and Defra) a salvo of decision notices telling them to clean up their act(s)! They followed up with an investigation into Combined Sewer Overflows regulation, mandating the regulators including Ofwat to “establish a robust and transparent methodology for consistent data collection and reporting. This framework should enable clear tracking of progress for each CSO and provide structured summaries at each stage of the SOAF process. It must also support accurate reporting of BTKNEEC assessment outcomes, ensuring that data is both reliable and comparable across submissions.”
The OEP reports effectively signalled the end of the investigation phase in a long process that began with WildFish’s legal case and the complaint to the OEP back in 2022, resulting in the publication of decision notices forcing the EA, Defra and OEP to comply with their duties. The OEP investigations and notice were also the harbinger of a change in culture from Ofwat.
Ofwat has subsequently been launching enforcement against a number of water companies, including today’s confirmation of a £44.7 million enforcement package against Dŵr Cymru Welsh Water, to reduce spills at specific overflows and “rectify breaches” to comply with the law and improve river water quality without adding the cost to customer bills.[2]
Ofwat is starting to do its job – whereas the EA and Natural Resources Wales (NRW) still do not seem to have woken up yet (choosing rather to avoid proper enforcement and steering clear of fines and courts). Meanwhile, Ofwat advertise that they have closed seven cases in their belated investigations into wastewater mismanagement. What will happen next is anyone’s guess as the government plans to effectively start from scratch when what we really need is the regulators to just wake up and do their jobs properly.
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