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Why Is The Environment Agency Investigating Major Water Companies?

Over the past year, business and residential customers alike have been concerned with reports that 11 major water companies have been discharging raw sewage into Britain’s waterways in a way that might potentially be illegal.

With reports that the Environment Agency has opened a criminal investigation into the conditions at wastewater treatment works and the scale of how environmental permit conditions may have been breached, a lot of companies have expressed concern about the potential effects on water bills.

Given that water consulting services are key to helping to save companies money on their bills, and the potential increases that could arise as a result of improvement and mitigation work, it is important to understand what the investigation is about, what could happen and how this affects businesses across the country.

Why Is Sewage Being Dumped In The First Place?

The United Kingdom’s water system is nearly two centuries old and uses a combined sewer system. This means that wastewater from bathrooms and kitchens and rainwater will both flow into the same set of pipes that will direct the effluence to the nearest sewage treatment works.

Once it is there it is carefully screened and treated before being safely returned to rivers, with the quality of water regulated by the Environment Agency (EA).

However, during flash floods and heavy rainfall, the capacity that the sewage pipes can take is not enough to manage the water going in, so the designers of the original system created a system known as combined sewer overflow to avoid sewage backing up and spilling back into homes and drains.

Instead of this, the overflow, diluted by rainwater, is dispensed into streams and rivers. It is not an ideal system, but it was seen as better than the alternative at the time and is considered legal by the EA, within certain conditions and with the possession of a permit.

If It Is Legal, Why Is It Being Investigated?

There are specified conditions for combined sewer overflows, with different classifications for certain types of overflow.

These can include, but are far from limited to the following rules:

• The overflow must operate according to the conditions of the relevant permit.
• The overflow must not operate in dry weather, for reasons that will become clear.
• It must not cause sewage fungus to grow or solids to float that would cause a significant impact on the appearance of the waterway.
• It must deteriorate the chemical or biological status of the water receiving the overflow.
• It must not cause failures in bathing standards in water bodies identified as such.
• It must not harm shellfish quality.
• It must not harm water standards on coasts.
• It must not pollute groundwater supplies.

All of these issues are concerns that the EA investigate, but by far the most troublesome, and the one that might cause the most legal issues for companies caught doing so is activating overflows in dry weather, also known as “dry spills”.

Dry spilling is illegal and exceptionally dangerous because that means raw sewage is being dumped into waterways, with a far greater chance of causing environmental damage and making the water far more dangerous for people and animals swimming in the polluted water.

According to a BBC investigation published in September 2023, three water companies, Thames Water, Wessex Water and Southern Water, collectively dry spilled for 3,500 hours the previous year, with data on the other companies currently subject to the EA investigation.

This also included days that, according to the BBC, were amongst the hottest of the year and subject to drought conditions.

As well as this, any breach must be communicated to the EA is also a breach of the permit and could potentially be a criminal offence.

The investigations into 2200 wastewater treatment works began in November 2021, and as it is an exceptionally complex process are ongoing as of October 2023.

What Has Happened Since?

After public outcry over the Environmental Agency report that 16 per cent of surface waters achieved an ecological status of “good” and reports of dry spills taking place in nature reserves, areas of conservation and areas of outstanding natural beauty, the government began to act.

It announced a new plan to improve the quality of water, including removing the limit to fines that the Environment Agency can impose without requiring a criminal prosecution, although in this case, the infringement is such that it requires a criminal investigation.

Water UK, the representative for the industry, announced in October 2023 that it intends to invest £96bn in improving Britain’s water infrastructure in a move it heralds as the most ambitious infrastructure upgrade of sewers since they were installed in the Victorian age.

However, this has caused controversy as the industry has intimated that it would want water bills to increase by £156 per year, with critics suggesting that this would lead to customers paying for the criminal failures of the companies.

This is compounded by Ofwat’s order that water firms must repay customers a total of £114m due to a failure to meet targets, so the chances of Water UK getting the bill increases it asked for

appear to be somewhat slim.

What Will Happen Next?

The investigation is ongoing, but if evidence of criminal polluting is found, the Environmental Agency will have multiple options to enforce the penalty, including fixed penalty notices, formal warnings that can later be used against a company in court, and prosecution.

If a company is prosecuted and convicted of a crime, alongside significant fines and withdrawal of permits, the court can confiscate assets, subject the company to a criminal behaviour order, demand the company pay compensation and remediation costs to remedy the environmental damage and many other penalties.

This will not happen until the EA has completed its investigation, believes it can prove its case beyond reasonable doubt and believes it is in the public interest to prosecute, although given the scale of the breach, the latter is exceptionally likely.

Ultimately, time will tell as to the widespread consequences of the spills and the criminal investigation, whilst the Environment Agency continues to collect evidence.