Water and the Environment Act: 13 things you need to know

Extinction Rebellion activists try to persuade DEFRA and the EA to do more on water. Photograph: Mark Kerrison/Getty Images Extinction Rebellion activists try to persuade DEFRA and the EA to do more on water. Photograph: Mark Kerrison/Getty Images

1 Public and political pressure forced the government to increase action on water pollution 

Water pollution barely featured in the original iteration of the bill, which at the time was more concerned with abstraction, supply resilience and drainage plans. But following the tenacious work of campaigners and the introduction of a private members bill on sewage from Conservative MP Philip Dunne, the issue rocketed up the media and political agenda, resulting in a public outcry which ultimately forced the government’s hand. 

 

2 The government made three amendments on sewage pollution 

To satisfy calls for stronger action, a new duty on government to produce a statutory plan to reduce discharges from storm overflows and their adverse impact, and report to parliament on progress, was added to the bill. A further requirement for government to produce a report setting out the actions that would be needed to eliminate discharges from storm overflows in England, and the costs and benefits of those actions, was also added, with both the plan and the report required before 1 September 2022. The government is also required to report to parliament on the progress towards implementing the plan with the first progress report within three years of the publication of the plan.

 

3 And then added three more

The first set of amendments did little to assuage concerns about the huge volumes of sewage being dumped into rivers and seas - at least 400,000 times in 2020 for around 3.1 million hours. So the government added three further amendments to the bill in August: a new duty on water companies and the Environment Agency to publish data on storm overflow operation on an annual basis, a new duty on water companies to publish near real time information - within one hour - on the operation of storm overflows, and a new duty directly on water companies to monitor the water quality upstream and downstream of storm overflows and sewage disposal works.

 

4 But the moves failed to satisfy the House of Lords

Crossbench peer the Duke of Wellington tabled an amendment that would place a duty on “sewerage undertakers to take all reasonable steps to ensure untreated sewage is not discharged from storm overflows into inland and coastal waters”. Responding, the government brought forward its own similar but weaker amendment, which would place a legal duty on water companies to “progressively reduce the impacts of sewage pollution from storm overflows”. The government’s amendment, which refers only to storm overflows rather than the whole sewerage system and asks that only the impacts of overflows are reduced rather than stopping them altogether, passed by 283 votes to 162. 

 

5 Critics say the act weakens existing rules on sewage pollution

Under the EU Urban Wastewater Directive there is an obligation on water companies to avoid spills from storm water overflows save for exceptional circumstances, such as intensives rainfall and snowmelt, and only then if water firms are treating a specified volume of sewage. Critics say that the act weakens this by setting out that “progressive reduction in the adverse impact of discharges” are made. It is also widely accepted that many sewage spills occur outside exceptional circumstances. The UK is still in breach of the directive over sewage pollution in Whitburn in the north east, but having left the bloc it is unclear whether the European Commission will take any action. 

 

6 They are also concerned about how the rules will be enforced

Critics also say that already-weak enforcement of rules will be made weaker as a result of the new act. But environment minister Rebecca Pow said the act will “dock in with the existing enforcement regime in the Water Industry Act 1991”. She added that: “Ofwat can issue enforcement notices that can direct specific actions or fine companies up to 10% of their annual turnover, running to millions of pounds. If we do not see sufficient progress from water companies, Ofwat and the government will be able to take enforcement action, and we will not hesitate to do so.”  Under other provisions in the act, the Office for Environmental Protection “will be able to take enforcement action against the Environment Agency or Ofwat or, indeed, the government, should it feel that any of us are not adequately discharging our duties”, she said.

 

7 The secretary of state has powers to modify the list of problem polluting substances

The act gives the environment secretary the power to maintain and update the list of priority substances used to “assess the chemical status of water bodies, in line with the latest scientific and technical knowledge, now that previous powers to update it (section 2(2) European Communities Act 1972) have been revoked at the end of the transition period”, according to DEFRA. In the last assessment of water bodies, undertaken in 2019 and reported in 2020, all of England’s rivers failed to meet legal standards of chemical health.

 

8 The act contains a new duty on the water sector to create drainage plans 

The act makes the creation of and reporting on five-year drainage and sewerage management plans a statutory duty for the water sector for the first time. The government says that the plans, through which companies “examine and investigate the capacity of their networks, will enable better risk-based assessments of current drainage and wastewater issues, impacts on the environment, and long-term planning, improving our resilience to extreme weather events and risks of sewer/surface water flooding”. 

 

9 It also bolsters water resource planning

The Environment Act requires more collaboration between water companies on managing supply and demand, resilience and environmental improvements, through their statutory water management plans, which also cover five-year periods. “Drawing on lessons learnt over this period, the [act] will make the process more adaptable and help foster greater cross-sector collaboration and a better understanding of the needs of the environment and of all water users,” said DEFRA. 

 

10 The water and sewerage licensing process will be modified

The government says the act “modernises the process for modifying water and sewerage company licence conditions, enabling Ofwat to improve its regulation of water companies through a more modern licence modification process, like the process in place for other utilities”. It says the current process can “constrain responsiveness to government priorities; increase regulatory uncertainty for the industry; and create divergence between individual companies’ licence conditions”. The act intends to strengthen Ofwat’s ability to improve the way water companies operate and is aimed at improving the information Ofwat receives from the sector, according to DEFRA.

 

11 There has been some movement on long-awaited abstraction reform

Government commitments to improve the oversight of abstraction go back as far as the 2011 ‘Water for Life’ white paper, but it was not until December 2017 that the Environment Agency set out its plans to gradually review and revoke damaging, underused and unused licences in a piecemeal fashion rather than overhauling the clunky paper-based system in one go as green groups wanted.

A measure within the act enables the “revocation or variation of permanent abstraction licences, many dating back to the 1960s, without liability for compensation where the change is necessary to protect the environment or where the licence is consistently under-used. Some older abstraction licences do not take account of fluctuating water availability and may enable too much water to be taken from the environment”. The Environment Agency will be able to vary or revoke licences without liability for compensation from 1 January 2028.

 

12 But a consultation on wider abstraction reform is underway

In September the government launched a consultation on “plans to modernise and simplify water abstraction and impounding regulation in England”. It also plans to  bring abstraction licensing under the Environmental Permitting Regime. The move was due to take place this year but has been delayed. At the same time it is also consulting on new proposals to “enhance the Environment Agency’s powers to protect groundwater resources”, it said.

 

13 A water quality target will be put in place but does not appear in the act

At least one new water target is planned. In a policy paper published in August 2020, the government set out the objectives for targets currently under consideration, including reducing pollution from agriculture, wastewater, and abandoned metal mines, and reducing water demand. Environment Agency chair Emma Howard Boyd said the targets would “help wider efforts to tackle pollution, reduce demand for water and secure clean and plentiful water for all”.

 

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