In August this year, the government published its Storm Overflows Discharge Reduction Plan, which included targets to require water companies to improve all storm overflows discharging into or near every designated bathing water and improve 75% of overflows discharging to high priority nature sites by 2035.
Just days after the plan was published, conservation charity WildFish issued a ‘letter before action’ to the government asking for the plan to be withdrawn on the basis that it is unlawful.
The group, which has been advised by environmental law barrister James Maurici KC and Charles Bishop of Landmark Chambers, and law firm Fieldfisher LLP, has now started a court action by way of a claim for judicial review against the environment secretary, presently Thérèse Coffey. The Environment Agency and Ofwat have been joined as "Interested Parties" as they are directly affected by the claim.
WildFish states that the plan is “unlawful” on the grounds that it “approves continuing unlawful conduct, fails to take into account the existing law, breaches the Habitats Regulations, and is irrational.”
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The plan sets out targets for water companies to improve overflows by 2035 (for priority sites) and 2050 (for other sites). But the group states that in doing so, the plan “appears to accept that sewage overflows before those dates will continue to breach the current duties and regulations”.
It argues that “water companies will use those targets to argue against more rigorous enforcement”. It also contends that the plan “fails to take into account that a large proportion of problem overflows are not complying with the law”.
WildFish also argues that the plan is in breach of the Habitats Regulations on the basis that it “purports to set targets for overflows which are having unacceptable and harmful discharges into European sites, yet there has been no consideration of the Habitats Regulations”.
In addition, it contends that the plan is “irrational” because although those parts of the plan which set the targets are clearly drafted to apply to all overflows, another part of the plan states that improvements to deal with nonconforming overflows are “outside the scope of the plan”.
“If the plan does not deal with nonconforming overflows, then it does not deal with the majority of the problem overflows and is irrational, and not fit for purpose”, the group states.
Nick Measham, chief executive of WildFish, said: “Years of underinvestment and absent regulators have got us where we are today with widespread illegal sewage discharges. If The plan is intended to deal with illegal discharges, it is unlawfully encouraging law breaking for years to come. If it is not intended to deal with these illegal discharges, it is irrelevant.
“We have no problem with the plan being used to arrive at an initial rough estimate of the costs required to provide upgrades to storm overflows. However, its failure to deal with the vast majority of relevant outfalls and the production of sub-targets and headline targets, which have no basis in the application of the existing regulations, is unacceptable.”
Earlier this month, The Good Law Project, which has launched separate legal action against the government’s Storm Overflow Plan announced that it will proceed with its own legal action, despite government lawyers arguing that the challenge is “hopeless” and “unarguable”.
Yesterday, campaign group Surfers Against Sewage also claimed that water firms were responsible for 146 “potentially illegal” sewage overflow spills across England and Wales between October 2021 and September 2022, while sewage was discharged into English waterways for over 15,000 hours during the summer bathing season.
ENDS has contacted DEFRA for comment.