Feature: The fight to protect rivers from sewage

Penny Gane, Head of Practice at Fish Legal explains how they have been fighting to stop untreated sewage polluting our rivers, lakes and coastline for decades.

The saga of combined sewage overflows (CSOs) and storm overflows started back in 1989 when the water companies were privatised. These overflows were given what was known as ‘deemed consents’; effectively a sticky plaster to make legal discharges that would otherwise have been illegal overnight. There were no conditions on the duration or quality of the discharges in the consents as they were supposed to be a temporary fix.

It took until 2010 for the Environment Agency to try to impose any meaningful conditions on them. Having revealed, via freedom of information requests, that between 3,000 and 4,000 temporary deemed consents still existed in England and Wales some 20 years after privatisation, Fish Legal forced the Environment Agency into applying a standard set of conditions to all those outstanding combined sewer overflow and storm sewage discharges, which they did.

The water companies appealed

As an organisation representing anglers whose waters were being polluted with sewage spills with alarming frequency, Fish Legal submitted evidence to the Planning Inspectorate that heard the appeals in 2010.

Evidence of sewage pollution was presented where the very basic terms of the consents had meant that the Environment Agency was unable to take any action, despite obvious environmental damage.

At the hearing, the water companies argued that the new blanket consents were unlawful and would require expensive works to be carried out. If they didn’t carry out that work it would put them in a position where they might be prosecuted if there were any future breaches.

If that all sounds familiar, it is because the water companies have been rehearsing the same arguments ever since. They focused on particular conditions that would have made it an offence to cause a deterioration in the quality of water in rivers, lakes and coastal waters. Unfortunately, the water companies won their appeal and with the decision in their favour, the inspector removed all references to water quality and made the consents almost unenforceable.

Understanding that finding out exactly just how these overflows discharged was critical to exposing the water companies’ reliance on them, Fish Legal asked the water companies for details about the duration of spills across their network.

What followed, when the information was not provided, was a 6-year legal battle for transparency in the water industry against the Government, the Information Commissioner, Yorkshire Water and United Utilities.

The fight went all the way to the Grand Chamber at the European Court of Justice and resulted in a decision by the Upper Tribunal in 2015 that privatised water companies in England and Wales are public authorities for the purposes of the Environmental Information Regulations.

The practical effects of that ruling are being felt today as anglers, other campaigning groups and the wider public can now obtain information by law directly from these companies about sewage discharges and abstractions that affect our freshwater and marine environment.

Fast-forward to 2021 and the current furore around storm overflows has come about, in part, because there is more information about these discharges in the public domain. Annual event duration monitoring data is now published online and anyone who is concerned about the health of their local river can request and analyse spill data.

The power of public scrutiny shouldn’t be underestimated. It is this and the prospect of new flow monitoring that has led to the water companies to come forward recently and ‘reveal’ that they may not be complying with their environmental permits on a massive scale.

The Environment Agency and Ofwat has launched a major joint investigation into the operation of over 2000 sewage treatment works as a result. If nothing else, it is a tacit admission that operator self-monitoring – a situation whereby the water companies oversee their own works and report any problems – has not worked.

It is fair to say that public confidence in private water companies is at an all-time low. With the Judge in the recent prosecution case against Southern Water describing its board as displaying a flagrant disregard for the law, these companies have a long way to go to convince everyone that their professed commitment to stop using our rivers, lakes and coastal waters as an extension of their sewerage network is anything other than just empty words.

Time will tell whether they will face tough enforcement action for widespread illegal activity. But the message seems to have got through to those with the power to hold these companies to account.

In the Lords this week, the suggestion by the Chair of the Environment Agency that directors of water companies that are guilty of repeated, deliberate or reckless breaches of environmental law should be struck off and given custodial sentences was described by Lord Goldsmith as ‘a very good idea.’