‘Not an enforcement policy’: EA faces further action for relaxing rules on sewage discharges and manure spreading

The Environment Agency (EA) has reworded two regulatory position statements (RPS) that relax the rules on sewage discharges and manure spreading but lawyers say the changes do not go far enough.

One of the statements means water firms that discharge effluent that has not been treated to levels stipulated in their environmental permits will not face enforcement action if they cannot get the chemicals needed to treat the sewage due to “the UK’s new relationship with the EU, coronavirus” or “other unavoidable supply chain failures”. 

After a backlash from lawyers, the EA this month changed the wording of the RPSs to clarify that they do not alter the legal obligations on water companies but “rather the EA’s enforcement approach if the conditions in the RPS are followed”.

Dr Justin Neal, a solicitor at not-for-profit law firm Fish Legal, said: “In the earlier version of the RPS, the EA said that it would be permissible for the water companies to discharge in breach of their permits – which was plainly an unlawful position for the EA to take. It is not surprising then that the EA has therefore responded by redrafting the RPS.” 

But he said the EA appeared to be “second guessing water company behaviour and setting out a new set of rules for when they will not normally be prosecuted”.

He said this amounted “not so much to an enforcement policy – because enforcement policies assume a crime has been committed and tell a water company what the consequences will be – but a new set of forward looking rules”. 

He said this was “not in the gift of the regulator” and that his firm was considering what steps to take next. 

Fish Legal is also concerned by the methodology being used to decide which water bodies water firms can discharge such inadequately treated sewage into. 

Under the RPS, Water Treatment Works (WWTW) in England classed as category A in water company risk assessments “should be de-prioritised in the scenario that treatment chemicals are unavailable, and all other mitigations have been exhausted”.

Neal said this “could not be right” as rather than a risk assessment being related to the actual potential impact, such as the flow measured against size of watercourse, “they rely simply on whether a river is already in poor condition”.

The second RPS, first published in August, means farmers can spread organic slurry or manure this autumn on their land, even if it exceeds the needs of the soil or crop.

The EA added a line in the RPS, again confirming that the RPS does not alter the legal obligations of operators.

Guy Linley-Adams, a solicitor for the Salmon and Trout Conservation said he was “delighted that the EA has backed off and amended its RPS”.

However he added: “What we really need to see is robust enforcement of the 2018 Farming Rules for Water.

Linley-Adams noted that farmers had been advised by the government for nearly 40 years that manure should not be spread when crops and soils do not require it.

“That’s enough of a notice period for anyone.

“Farmers have had ample time to prepare for the rules and get their manure management in order – and many have done exactly that – so it is not unreasonable to expect the EA to enforce the law against those who have not,” he said.