Nick Barker, of Weightmans law firm, explains what the major new legislation means for water companies, the imperative of ensuring regulatory compliance in the short term, and steps that can be taken to do so.
Over recent weeks water companies have faced further scrutiny over excess sewage and rainwater discharges, caused by flooding, into the seas around Britain. This adds to a sustained period over which discharges into waters have come under review.
The issue of storm overflows is not a new one; its current status reflects the complexity of the problem. Like many, water companies have long regarded the situation as unacceptable but lacked the necessary statutory and regulatory framework to act. This has changed with the passing of the Environment Act 2021 and the publication of the Storm Overflows Discharge Reduction Plan (the Plan), marking a watershed in the industry’s approach to the issue.
The Environment Act sets out a requirement for sewerage undertakers to secure a progressive reduction in the adverse impacts of storm overflow discharges, while the Plan provides clear and unambiguous requirements for what is needed.
Regulatory shifts
The Plan sets out ambitious targets requiring water companies to participate in a mandatory £56bn investment project to fix the long-standing issue of storm overflow discharges. Two clear targets are:
By 2035, water companies must have improved all overflows discharging into or near all designated bathing water, and improved 75% of those discharging to high priority sites
By 2050, no storm overflows will be permitted to operate outside of unusually heavy rainfall or cause any adverse ecological harm
Progress against this plan will be scrutinised by Ofwat, the economic regulator for the water industry, and the Environment Agency (EA), the environmental regulator in England.
Supporting them to do so are strengthened monitoring and reporting requirements, including:
100% coverage of Storm Overflows through Event Duration Monitoring (EDM) by 2023, requiring companies to report the frequency and duration of spills
Storm Overflow data to be published annually, with frequency and duration data required in near real time
Monitoring the water quality impact of assets that discharge sewage into river systems
What should water companies be doing in the short term?
Water companies will be reviewing the Plan and carefully considering what it means for long-term planning and future investment. The scale of this project cannot be understated.
The immediate challenges presented by storm overflows will not, however, go away. Where water companies aren’t meeting existing legal obligations, the EA have a range of options available to them, including issuing enforcement notices, prosecuting companies in the criminal courts and in extreme cases even jailing individuals whose companies are responsible for the most serious incidents (although that hasn’t happened to date).
These risks have increased following recent public scrutiny, including an investigation by the Office for Environmental Protection into the roles of Ofwat, the EA and Defra in the regulation of combined sewer overflows, alongside active investigation by the EA.
In addition to the long-term measures required to tackle storm overflows, water companies will be looking to:
1. Strengthen compliance
Water companies will be regularly reviewing their environmental management systems to ensure they are proactively monitoring compliance with existing legislation such as the Environmental Permitting Regulations and the Urban Wastewater Treatment Regulations.
2. Take commitments seriously
Monitoring conditions and reporting requirements are already included within discharge permits for each storm overflow identified. However, a wider approach to investigation and reporting can provide insight into common causes and demonstrate proactivity to regulators and stakeholders.
3. Harness the potential of data – knowledge is power
Improving EDM data provides a robust and consistent way of monitoring storm overflows. Water companies should consider the potential of data generated by increased monitoring responsibilities, with opportunities to: engage real-time data analytics solutions to support operational decisions; provide elevated insight into operational risk management; inform investigations into discharges; and engage with stakeholders.
The Plan will help water companies bring much needed improvement to Britain’s antiquated Victorian sewer infrastructure and have a positive impact on the environment. Alongside a commitment to achieving its long-term objectives, a key focus will be ensuring current legal obligations regarding storm overflows are being complied with.
