WildFish puts OFWAT and the Environment Agency on notice

• Formal letters set down what the law requires regulators to do to end unlawful sewage discharges. 
• The Environment Agency must urgently review pollution permits. 
• OFWAT must enforce the 1994 law against failing water companies. 
• Water companies, not customers, must pay to end illegal sewage discharges. 

WildFish has today sent formal letters to the Environment Agency and OFWAT setting down exactly what the law requires them to do to end unlawful sewage discharges, warning both that if they do not take urgent steps both to comply with the law themselves and to enforce the law against water companies, a further legal challenge will likely follow from WildFish.

A judicial review challenge case brought by WildFish earlier this year clarified a 1994 law on sewage treatment (the Urban Waste Water Treatment Regulations 1994) which restricts the circumstances in which untreated sewage can be released into rivers via storm overflows.

That 1994 law requires water companies to use best techniques, not involving excessive cost, to prevent untreated sewage being released, unless there is exceptional weather. Exceptional weather does not include normal or usual rainfall. It certainly does not include dry weather conditions, although we have seen many water company sewage pipes discharging untreated sewage into rivers in dry conditions over recent years.

The case confirmed that sewage treatment infrastructure needed to comply with the 1994 law must be funded by the water companies and not by customers through their water bills.

In parallel to the judicial review challenge, in 2022, WildFish made a formal complaint to the Office for Environmental Protection (the OEP) which led to the OEP’s announcement of its first-ever investigation into the regulation of combined sewer overflows.

As part of that investigation, the OEP identified possible failures to comply with environmental law by the DEFRA, the Environment Agency and OFWAT, stating that “we believe that there may have been failures to comply with environmental law by all three of the public authorities”.

OEP identifies possible failures to comply with environmental law in relation to regulatory oversight of untreated sewage discharges  | Office for Environmental Protection (theoep.org.uk)

The OEP’s findings resonate with Mr Justice Holgate’s judgement in the WildFish case.

It is now clear that OFWAT has a duty directly to enforce the 1994 law against water companies, which it has failed to do over decades. It must now do that urgently.

Guy Linley-Adams

Solicitor at WildFish

He continued: “the Environment Agency also has a duty to secure compliance with the 1994 law by tightening the terms of the permits it issues to water companies under the Environmental Permitting Regulations 2016. The Agency must do that at once, as most permits issued by the Agency do not currently restrict raw sewage overflow discharges to exceptional weather.

If either of OFWAT or the Agency decide not to act, we will actively consider further legal proceedings to force compliance with their legal duties to enforce the law on sewage against the water companies”.