Dear Friends
As you will know by now the OEP has published its report into the investigation into the regulation of combined sewage overflows. It can be no coincidence that the water report white paper was then immediately postponed.
The Cunliffe report that underpins the White Paper, is predicated on the fact that the legislation is too difficult and confusing to enforce and so needs simplifying (one of the actions we believe in the new White Paper was to simplify and loosen requirements).
As you know the law says sewage can only be dumped in our rivers, lakes and seas in exceptional circumstances.
The OEP says (differently from Cunliffe) that the law is clear – but Defra, EA and Ofwat have not applied the law. The OEP has clarified that exceptional circumstances means …you guessed it …exceptional; not as interpreted by Defra and the regulators to date which is that exceptional circumstances are reached when there is a lack of capacity in the sewage system.
“Our investigation found that there had been failures to comply with environmental law by each of the three public authorities relating to the regulation of network CSOs. Decision notices were issued to them setting out the actions required to address the non-compliances. We welcomed responses from them which showed positive action to address the concerns raised and significant progress being made. “
To be honest we have all been saying this for years and years, it is unbelievable that our regulators and government departments have fudged the law to enable pollution for profit.
With thanks to Wild Fish for complaining to the OEP on all our behalf which triggered this investigation and monumental ruling that shows campaigners to be right despite cross briefing by government. Nick and the team at Wild Fish – you have done an amazing job.
We all need to now call for enforcement of the law as clarified by the OEP (see page 5 & 6)
The Findings:
“We found that there had been three failures to comply with environmental law by Defra:
1. Failing to take proper account of environmental law by:
• Drafting guidance for WaSCs and regulators which did not reflect the true legal extent of sewerage undertaker duties• Failing to amend or replace the guidance after a relevant CJEU decision in 2012• Misunderstanding its legal duty under environmental law to make enforcement orders.
2. Failing to exercise its duty under environmental law to make enforcement orders.
3. Failing to discharge its duty to secure compliance with environmental law relating to emissions controls. (NB the OEP’s view is that this ceased to be an issue in 2020 due to a change in the law).
We found that there had been three failures to comply with environmental law by the Environment Agency:
1. Failing to take proper account of environmental law in devising guidance relating to permit conditions.
2. (As a result of the point above) setting permit conditions that were insufficient to comply with environmental laws.
3. Failing to exercise permit review functions in relation to discharges from CSOs
We found that there had been two failures to comply with environmental law by Ofwat:
1. Failing to take proper account of environmental law with regards to duties on WaSCs and its duty to make enforcement orders.
2. Failing to exercise its duty under environmental law to make enforcement orders.”
ANd guess what – it says the EA has to update its permits – something we have all been calling for for years.
So lets think about what to do but we must in the first instance
1. Keep our ‘enforce the law’ message front and centre
2. Contact the EA and ask when they are going to update your permit to comply with the law!
