What makes the Office for Environmental Protection (OEP) so intriguing is its continuing, unrelenting drive to get the information it believes it needs to gain a proper appreciation as to the state of the environment in England and how entities such as Defra, the Environment Agency and Ofwat are performing when it comes to delivering various environmental objectives. These regulators can tend towards either self-congratulation or self-justification. The OEP has time for neither.
Progress in improving the natural environment in England 2023/2024 is a broad sweep of the state of nature in the nation. The chapter ‘clean and plentiful water’ is one of the longest of the 11 broad objectives considered, while quite a few of the others also touch on water.
The OEP’s particular gift lies in shining new light on new light. For example, by comparing annual rainfall at each of the nine English water and sewage companies with average combined sewer spill overflow occurrences per overflow in each year, it found that there is in fact a material relationship between the frequency of spills and the amount of rainfall. The Environment Agency did not make this connection in such terms when reviewing CSO performance in 2023. This suggests that the OEP both enjoys a leadership focused on its job and is staffed with motivated people.
As far as water goes, three consequential reports have been published in the past two months, first on bathing waters, then on combined sewer overflows and most recently, on targets.
The OEP is starting to affect the way the sector is regulated by obliging the various regulators to reconsider both how their guidance works in relation to environmental law and how it is enforced. That matters have got to this point is of some concern.
The Bathing Water Conundrum
Many of the points raised in the OEP’s November 2024 publication were considered in ‘Bathing water blues’ in the previous edition of The UK Water Report. The OEP’s chief concern here is about the need to ensure that operating procedures and definitions are fit for purpose, rather than their practical implementation. This is in marked contrast with the OEP’s position on combined sewer overflows.
What this and other deliberations lack is an international dimension. This matters because there are far more inland bathing sites in Germany and a far higher frequency of these sites are classified as of ‘excellent’ bathing quality.
In 2023, Germany had 1,929 inland water bathing sites, 90.8% of which were classified as of ‘excellent’ quality under the Bathing Water Directive, against 87.6% of coastal sites. Just 9% of Germany’s inland waters were classified as ‘good’ or ‘excellent’ under the Water Framework Directive in 2019 against 96.5% under the Bathing Water Directive that year. So many designated sites ought to be a reasonable approximation of Germany’s inland waters and it is unlikely that there has been a great underlying improvement in compliance under the WFD in subsequent years.
In England, 64% of 14 designated bathing waters were classified as ‘excellent’ in 2023 and 38% of 32 in 2024. It is reasonable to assume that these sites were selected both for their popularity and their potential suitability. At 14%, England’s WFD compliance rate is pretty weak, yet appreciably better than Germany’s. While the BWD / WFD compliance ratio in Germany for inland waters was 10.0, against 4.6 in 2023 and 2.7 in 2024 in England.
What is going on? The findings in England where BWD compliance is well ahead of WFD compliance in both inland and coastal sites suggests that the WFD presents a more unflinching picture than the BWD. They do have different objectives; the WFD is about ecosystem health while the BWD is concerned with public health.
While Germany has the same pattern, especially for inland waters, the disparity is appreciably greater. If utilities have been gaming the system to ensure the best bathing water results, what does this suggest about Germany or indeed the Netherlands, where just 1% of inland waters meet the WFD standards in 2019? In the case of the Netherlands, 88% of its 655 designated inland bathing waters were either ‘good’ or ‘excellent’ in 2023. This highlights two approaches towards bathing water quality. Germany concentrates on designating sites which it believes will comply with the BWD from the outset. Here, it benefits from extensive mountainous and forest regions. In the UK, a site is selected with the aim of complying within five years of designation. That, as has been seen, is a riskier approach, one which aims to incentivise investment by giving a target to reach. Germany has 233 people per km² against 434 in England, meaning there are more comparatively lightly used areas in Germany than in England, giving them more scope for seeking suitable sites. Even so, the Netherlands has a population density of 544 people per km², suggesting other factors may well be at play here.
Regulating Combined Sewer Overflows
Last December, the OEP found that Ofwat, the EA and Defra had failed to comply with environmental law regarding how combined sewer overflows have been regulated. Its chief concern is that untreated sewage discharges should only be allowed to occur in “exceptional circumstances, such as during unusually heavy rainfall.” The only other exception would be where the cost of remediation would outweigh the benefits.
In essence, this relates to shortfalls in guidance and permit conditions and shortcomings when it comes to enforcing regulations. While the regulators need to respond formally to these observations by mid-February, it is interesting to see that many of the specific concerns have been addressed during the 14 months since the OEP sent them Information Notices in September 2023. Legal action has been threatened to ensure that all their concerns are addressed in a timely manner.
It appears that the OEP is starting to affect the way the sector is regulated by obliging the various regulators to reconsider both how their guidance works in relation to environmental law and how it is enforced. That matters have got to this point is of some concern. Why have the regulators fallen short in this regard and why has it taken a comparatively new entity such as the OEP to point this out more than three decades since the current regulatory settlement was framed in 1989?
Performance Against Targets
The most recent report looks at all aspects of England’s environmental performance. The two areas of particular interest are the OEP’s breakdown of water pollution incidents and mapping progress towards various water-related targets.
Until now, attention has been focused on how various sources of pollution have been responsible for assessed reasons for failures of the Water Framework Directive. 36% of failures were attributed by the Environment Agency to discharges from wastewater treatment works (29%) and combined sewer overflows (7%) against 40% from agriculture.
It is evident that with event duration monitor (EDM) data now covering (in theory, at least) all combined sewer overflows, the impact of sewage discharges is going to be at least as high, especially in years of high rainfall. Even so, EDM data continually skews attention, especially in the media and public and political concern, away from the more pressing concerns.
Category I-III pollution incidents from March, 2021 to June, 2024 | |
Pollutant type | |
Sewage materials | 23% |
Oils and fuel | 15% |
Biodegradable materials & wastes | 12% |
Agricultural wastes | 12% |
Contaminated water | 8% |
Inert materials & wastes | 6% |
Organic chemicals & products | 5% |
Atmospheric pollutants | 3% |
Inorganic chemicals | 3% |
Other pollutants | 5% |
Other waste materials | 5% |
Not identified | 12% |
When it comes to specific incidents at Category III and above, a different picture emerges. Sewage and agriculture account for 35% of the chief causes of pollution incidents against 76% of Water Framework Directive failures. That reflects the insidious nature of agricultural and urban pollution against one-off incidents. It also remains to be seen how many pollution incidents from sewage treatment works have been unreported, underreported or downgraded. That is an emerging concern.
Against this, while these incidents are reported on a company-by-company basis and form part of Ofwat’s incentive mechanism, this data highlights that many of these incidents in fact lie outside a utility’s responsibilities.
Environment Act 2023 (EA21) Targets | |||
EA21 Targets | 2022-23 | 2023-24 | Meeting targets? |
Reduce agricultural pollution loadings by at least 40% between 2018 and 2038. | Mixed | Off-track | |
Reduce phosphorous loadings from wastewater by 80% from 2020 to 2038. | Good | Good | On-track |
Halve the length of rivers polluted by toxic metals from abandoned mines by 2038. | Good | Partially on-track | |
Reduce potable water demand by 20% from 2019-20 to 2038. | Mixed | Good | Partially on-track |
EA21 and Other Targets
The 2023 Environment Act set into law a set of targets outlined by the Environment Agency in 2021 (EA21).
The OEP suggests the chief current challenge for managing agricultural pollution loadings is the scarcity of workable data. It is likely that effective progress will depend on the gradual deployment of inland water quality monitors, which after a number of trials are formally being rolled out this year. They also rightly note that compliance with the law regarding the reduction of such pollution depends on its enforcement.
The fact that phosphorus loading reductions from wastewater are on track and that the OEP is consistently satisfied with progress to date is intriguing, given the continued concern about overflows and management shortfalls at some wastewater treatment works.
The continuing move away from secondary to tertiary treatment is having a positive impact, as well as the increased deployment of nutrient removal (quaternary treatment). This is also helped by the increased deployment of quaternary treatment systems in a number of European countries in recent years, improving its affordability and applicability. Data quality here is high, thanks to the company Annual Performance Reviews.
It is evident that the OEP is concerned about the lack of coherence in environmental regulation and its implementation in the water sector.
Attention needs to be focused on those chemicals (arsenic, cadmium, zinc, copper, lead and nickel) which mainly come from abandoned mines. This is a legacy of the Industrial Revolution, which had a particularly heavy impact on the UK compared with much of the rest of Europe.
Reducing potable water demand depends on addressing the regulatory ambivalence towards smart metering, especially outside areas classified as water scarce. As seen in electricity, pretty well all other customer-related approaches can be materially improved when a utility has access to real-time data.
The OEP points out that progress on household and non-household water consumption along with leakage reduction has stalled in the last two to three years. The lack of progress in leak reduction may reflect the impact of the fall in mains renewals in recent years, reflecting the shift away from maintaining assets due to the emphasis on developing new assets which generate returns, against maintaining extant assets which do not offer this reward.
The ambition that 77% of inland waters will at least be of good ecological quality by 2027 (or 75% on the Government’s EA21 plans) remains a Panglossian aspiration. This is in part due to the parts of the WFD about chemical water status where the contaminants are not found in municipal wastewater. The Government has put the commitment to achieving good chemical status back from 2021 to 2063 and even here, the OEP only sees limited progress. The idea here is that those chemicals already present in inland waters (England has a 0% compliance rate for good chemical quality at present) will dissipate by that time. That is based on a model, which appears to assume no further chemical loading. The chief challenge here is that there are no practical means for removing some of these Persistent, Bioaccumulative and Toxic (PBT) chemicals from inland waters as things currently stand. New approaches are needed.
Looking at individual remedial actions for WFD compliance overflows, between 2020-21 and 2023-24, 118 schemes were completed for improving sewage treatment performance. For the commitments to be on track, a further 783 schemes will need to be completed in 2024-25, which would appear to be quite a step up.
The expectation that all designated bathing waters should be of ‘sufficient’ quality by 2015 is becoming increasingly absurd, nine years on. Firstly, it fails to take account of bathing waters designated since then. Secondly, this is now an arbitrary date. The OEP would prefer a timetable for each bathing water that reflects its individual circumstances.
Other Targets and Commitments | |||
2022-2023 | 2023-24 | Meeting targets? | |
77% of surface waters to achieve good ecological status by 2027. | Limited | Limited | Off-track |
Water companies to no longer discharge pollutants from sewer overflows by 2050. | Mixed | Good | Partially on-track |
All bathing waters to be of at least ‘sufficient’ quality by 2015. | Mixed | Mixed | Partially on-track |
What the OEP is Finding Out
It is evident that the OEP is concerned about the lack of coherence in environmental regulation and its implementation in the water sector. It is encouraged by the financial headway Ofwat has provided in the latest final determination.
It is also keen to ensure that all data disclosure is as timely as possible, so that the regulators actively engage in this process rather than begrudge these disclosures. Future reports are to be anticipated with enthusiasm.
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