The environmental organisation Salmon and Trout Conservation has said that it will initiate a judicial review unless DEFRA acts to stop water companies from breaching the Water Industry Act 1991, which requires them to “effectually drain sewers” and “effectually deal with sewage”.
Water companies discharged raw sewage into rivers and coastal waters in England more than 400,000 times last year, according to data published by the Environment Agency in March.
Untreated human effluent poured into rivers and seas for a total of 3.1m hours via combined sewer overflows (CSOs), storm overflow pipes that are supposed to be used only in extreme weather to relieve pressure in the sewage system.
In a letter sent on 19 April to environment minister Rebecca Pow, Salmon and Trout Conservation said: “Unless any relevant parties to this issue – including all those copied into this letter - are prepared to argue that discharging sewage to rivers at times other than during or following exceptional rainfall constitutes ‘effectually dealing with sewage’, by the government’s own admission, and by common understanding, the water companies have failed, and continue to fail to meet the duties placed on them under section 94 of the 1991 Act.”
The threat of legal action comes after Pow announced on 29 March that she would place a legal duty on water companies to “publish data on storm overflow operation on an annual basis”.
She also said she would “put a duty on government to publish a plan by September 2022 to reduce sewage discharges from storm overflows”.
Water companies are already obliged to publish data on storm overflow operations under regulations that came into effect in 2004, according to Salmon and Trout Conservation.
Under regulation four of the Environmental Information Regulations 2004, water companies are required to make environmental information they hold available to the public by electronic means which are easily accessible.
This includes data on sewage discharges through CSOs according to the environmental organisation Salmon and Trout Conservation.
Although water companies have been required by law to publish environmental information in an easily accessible format since 2004, there have been no regular comprehensive publications of sewage discharge data.
In its letter to Rebecca Pow, Salmon and Trout Conservation said: “If water companies hold data on storm overflow operation, as they do, they are already under a legal obligation to publish it, and not necessarily only in the envisaged form of an annual report, and are in breach of that duty by not publishing any such data they hold in accordance with the 2004 Regulations.
“As the 2004 Regulations do not provide any mechanism to allow for this breach to be considered by the Information Commissioner, we would ask you to examine whether the water companies are complying with that duty.”
Salmon and Trout Conservation also believes that water companies are legally required to properly treat raw sewage under the Water Industries Act 1991.
Guy Linley-Adams, solicitor to Salmon and Trout Conservation, said: “Rebecca Pow is repackaging what is essentially already a legal obligation upon water companies, which should have been enforced by her department and has been law since privatisation – and making it seem like this is a new initiative.
“They’ve been sitting on this since 1991 and they have not done what they should have done.
“Now is the time to sort this out, and if they don’t we are going to see them in court.
“Going to judicial review can be terribly expensive, but we are going to do it because there are no other practical options left.”
He added: “In 1991 there was a very clear duty place on water companies that they would effectually deal with sewage i.e. they would treat it.
“The mechanism for enforcing that is not available to anyone. It’s just available to the secretary of state for the environment and Ofwat.
“It’s up to them to enforce that duty on the water companies and they have completely failed to do it."
Commenting on the plan to reduce sewage overflows, which is due to be published by September 2022, the letter to DEFRA noted that “reducing such discharges may still not be sufficient for water companies to meet their section 94 duties”.
It added: “If section 94 continues to be breached, we would expect enforcement proceedings to follow”.
Countries are legally obliged to treat sewage before it is released into waterways. Discharges of untreated human waste are permitted only in exceptional circumstances, for example after extreme rainfall, the European court of justice has ruled.
Salmon and Trout Conservation has called for the government and the water company regulator Ofwat to ensure that CSOs are not used outside of periods of exceptional rainfall.
It has also called for the secretary of state to make regulations to address the CSO issue.
Salmon and Trout Conservation has said that it will initiate the judicial review in September 2022 if the plan published by the government does not properly address the issue of sewage discharges into British waterways.
Linley-Adams said: “When we see the plan that the government has committed to publishing in 2022 – if that plan is full of warm words, pilot studies, and vacillation then we will initiate the judicial review.”
A DEFRA spokesperson said: “We have made clear to the water companies that they must take their environmental obligations seriously. Ministers hosted a roundtable last September, and were clear that the volume of sewage discharged into rivers and other waterways must be reduced.
“We have established a Storm Overflows Taskforce – made up of DEFRA, the Environment Agency, Ofwat, Consumer Council for Water, Blueprint for Water and Water UK – to accelerate progress in tackling the issue. The taskforce has agreed to set a long term goal to eliminate harm from storm overflows and has already taken steps to improve monitoring and transparency.
“New measures on reducing storm overflows will be put into law – committing the government to produce a statutory plan and report regularly to parliament on progress. This will be an important step forward to cut down the water sector’s reliance on storm overflows.”
In September 2020, DEFRA announced that it had set up the taskforce to “reduce the frequency and volumes of sewage discharges from storm overflows”.
The CSO figures published by the government in March this year show that the scale of sewage discharges in England into rivers and seas rose dramatically between 2019 and 2020.
A total of 403,171 discharge incidents were recorded in 2020 – a 37 per cent increase compared to 292,864 incidents in 2019.