Wild Justice challenges Ofwat over discharge of untreated sewage into rivers

Investigations by Wild Justice’s lawyers at law firm Leigh Day have revealed that Ofwat has direct powers to ensure sewage plants are designed and operated correctly.

Under the Urban Waste Water Treatment (England and Wales) Regulations 1994 (UWWT) and section 94 of the Water Industry Act 1991, these powers would in turn would help avoid sewage overflow and discharge into watercourses.

However, correspondence with Ofwat shows that the authority is failing to take the necessary monitoring and enforcement action against water companies. Permits issued to water companies by the Environment Agency for dealing with sewage supplement Ofwat’s obligations to ensure sewage treatment plants are fit for purpose – but do not duplicate them.

In a pre-action protocol letter to Ofwat – which signals the start of the judicial review process – Wild Justice says it is concerned that Ofwat’s lack of action over the planned and unplanned discharge of untreated sewage into rivers and other water bodies. Such discharges are causing excessive nutrient levels to build, negatively impacting water quality and wildlife in valuable freshwater and marine environments.

Ofwat says it focuses on the adequacy of a company's overall planning, resources, and systems for managing its sewerage system and wastewater treatment works and whether there are factors which point to a material failure in any of these. Wild Justice says this  is not enough to meet Ofwat’s obligation to consider whether a sewage plant is complying with its obligations under the regulations and to take enforcement action where necessary.

The UWWT regime requires Ofwat to collect data about the design and operation of sewage plants, but Ofwat says that it relies entirely on data gathered for that purpose by the Environment Agency. However, when asked about its role in relation to the UWWT obligations, the EA explained that it has no direct function in monitoring or enforcing the obligations, which is a matter for Ofwat.

Wild Justice argues that Ofwat is failing to carry out its obligations under the UWWT regime because it is entirely passive in relation to enforcement. They also say Ofwat has taken no steps to obtain information relating to compliance by water companies in relation to their sewage treatment plants.

Wild Justice concludes by asking the board of Ofwat to acknowledge where it has fallen short in its duty to collect information about sewage plant compliance with regulations and to commit to considering what action it should take to fulfil its obligations to enforce the relevant regulations.

Wild Justice, led by Dr Mark Avery, Dr Ruth Tingay and Chris Packham, said:

“It’s not so much Ofwat as Ofwhere? They are missing in action. Our rivers and their wildlife need Ofwat to get active.”

Leigh Day solicitor Carol Day said:

“While the public are rightly frustrated with the Environment Agency for an apparent reluctance to prosecute water companies for breaches of permits, there’s an underlying question as to whether our Victorian sewage treatments plants are still fit for purpose.

"The responsibility for ascertaining the position on that – and for requiring action where they are not – lies with Ofwat, but it appears to be doing nothing to solve that underlying problem. Our clients hope that highlighting Ofwat’s duties in this regard will ensure the necessary steps are taken to upgrade our outdated sewage plants.”