Environment secretary defends Defra’s compliance with storm overflow laws

Environment secretary, Thérèse Coffey, has defended Defra and its water agencies’ compliance with environmental law, after the Office for Environmental Protection (OEP) last week identified “possible failures” from Defra, Ofwat and the Environment Agency in relation to storm overflows.

The OEP has been investigating the three bodies since June, after receiving a complaint alleging failures to comply with legal duties relating to the monitoring and enforcement of water companies’ management of sewage. It said on the back of information gathered so far, “the OEP believes that there may have been failures to comply with environmental laws by all three of the public authorities”.

The OEP has issued Information Notices to each of them setting out the details of those possible failures. The public authorities have two months to respond, setting out whether they agree with the OEP’s view, and any proposed remedial action or practical measures to address issues. The OEP then has two more months to decide on next steps. The ultimate sanction, should a satisfactory outcome not be found, would be proceedings in the High Court via an environmental review.

The matter hinges on the interpretation of the “exceptional circumstances” in which discharges are permitted. 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."

Answering an Urgent Question from new shadow environment secretary Steve Reed following the news, Coffey said: “I confirm that the department, the Environment Agency and Ofwat have received the information notices and will, of course, comply with their requests. We do not agree with the Office for Environmental Protection’s assessment of our compliance with the law.”

She did not respond to Reed’s calls to publish correspondence between the OEP and her Department, nor to resign should Defra be found to have broken the law. “The prime minister would not tolerate raw sewage in his private swimming pool, so why is he happy to treat the British countryside as an open sewer?” Reed chided.

Lord Benyon responded to an Urgent Question in the Lords. Labour’s Baroness Hayman of Ullock called it “extremely worrying” that the Department may have misinterpreted some key points of law. She added: "We also think it is worrying that the environment secretary has chosen to disagree with her own environmental body, in one of its first major investigations of government conduct.”

The OEP detailed the potential failures

• 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. (The Urban Waste Water Treatment (England and Wales) 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). 

• 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 (ss.18 and 94 of the Water Industry Act 1991).

• For Defra, the potential failures relate to the requirements of urban waste water legislation, water quality legislation, and Defra's duty to make enforcement orders where sewerage companies fail to comply with their own duties to effectually deal with sewage (ss.18 and 94 of the Water Industry Act 1991, 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).

Look out tomorrow for… The House of Lords Industry and Regulators Committee will tomorrow publish its letter to environment secretary Thérèse Coffey, setting out the conclusions and recommendations from its follow up water inquiry.

The committee instigated extra work after its inquiry into the work of Ofwat, given significant developments such as Water UK’s sewage pollution apology and the publication of Defra’s Plan for Water. Sessions were held in June and July, with Water UK, the National Infrastructure Commission, Ofwat, water companies and Defra giving evidence. The follow up inquiry looked at the work of Ofwat, the water industry and the role of government.