Peter Scott, the seasoned environmental lawyer at Barnstaple law firm Toller Beattie, looks set to deliver his coup de grâce in his long-running battle with Whitehall over shellfish waters.
Having forced the Government to recognise 76 new shellfish production areas in line with EU requirements in 1999, Mr Scott is now poised to ensure that these waters are brought up to demanding microbiological quality standards under a 1979 EU Directive.
The Commission wrote to Mr Scott in May to say that it had sent the Environment Department (DEFRA) a letter of formal notice. The letter requests the Government's response to a complaint made by Mr Scott that the UK has failed to endeavour to observe the required microbiological quality of shellfish.
The essence of Mr Scott's complaint is that many sewerage schemes designed and commissioned since the Directive came into force in the 1980s fail to take into account the microbiological standards required in shellfish waters.
The 1979 Directive requires EU Member States to designate areas used for shellfish production and "endeavour to observe" a guideline microbiological standard in shellfish flesh of 300 faecal coliforms per 100ml in 75% of samples.
The requirement came into force in 1987 and all sewerage schemes which affect shellfish waters built since then should have had design criteria which would be consistent with achieving that microbiological standard. This is highly significant because many schemes considered only the lower standards required to meet the bathing water Directive.
Officially, the Environment Agency has argued that a water quality standard that would achieve the shellfish water Directive's guideline "has not yet been derived" (ENDS Report 321, p 42 ). Mr Scott disagrees and points to research by the Centre for Environment, Fisheries and Aquaculture Science (CEFAS) which suggests a level of 1.1 E.coli per 100ml water.
The standard is extremely demanding and is a factor of about 1,000 below the standard the Agency is actually enforcing for sewage effluent discharges - 97 percentile compliance with 1,500 faecal coliforms per 100ml of water. Although an allowance can be made for dilution in receiving waters, this is unlikely to be as high as 100 in many of the estuarine waters in which shellfish are grown.
But the issue is not only continuous sewage discharges. Combined sewer overflows (CSOs) and emergency discharges from sewage works and pumping stations may also impact on shellfish waters and Mr Scott argues that the current standards being applied are inadequate.
Although water companies are now supposed to warn shellfish producers of any emergency discharges (ENDS Report 319, pp 7-8 ), investment guidelines allow CSOs to operate up to ten times a year. Mr Scott believes that a more suitable frequency for CSOs affecting shellfish waters would be once in five years.
As a rule of thumb, Mr Scott suggests, there are an average of two sewage discharges affecting each shellfish water, so he estimates that the number of improvement schemes required in England and Wales may be around 400.
In many cases, this is likely to mean substantial investment in additional sewage treatment such as ultra-violet disinfection or membrane treatment to improve microbiological quality. Additional capacity and storage in sewerage networks may also be required to reduce the frequency of overflows. Alternatively, CSOs may need to be diverted away from shellfish waters.
The bill for the improvements is likely to run to tens of millions of pounds and will be particularly frustrating for the water industry since modifications will be required at many recently built works.
Mr Scott observed: "On past form, the UK Government will try to delay these proceedings for as long as they can...avoiding any changes of standards until [the water industry's next price review in] 2009. [This creates] an impossible situation for the water industry and for the Environment Agency in that the Government gives no clear indication as to what standards ultimately it will require for shellfish waters, which results in a great deal of wasted resources."
A spokesman for Water UK said that the industry was watching developments but had always taken its lead on the standards required from DEFRA through the regulatory process.