Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger, Nicholas Ostrowski and Mark Davies consider a call from the European Commission for the UK to fully comply with an urban waste water ruling, government proposals on reforming water regulation and abstraction licensing and a call from environmental committees for further scrutiny of the draft Environment (Principles and Governance) Bill.

UK urged to “fully comply” with urban waste water ruling

Is this soon to be a thing of the past? The European Commission has called on the UK to “fully comply” with a 2012 ruling by the CJEU that found that the UK had breached its obligations under EU law on adequate collection and treatment systems for urban waste water. In particular, the UK had failed to control excessive storm water overflows from the collecting system and treatment plants serving London (as well as Whitburn in Sunderland). Despite significant progress in London with the upgrading of three treatment plants and the construction of the Lee Tunnel, storm water overflows along the River Thames are not yet under control.

Back in 2005 the EC received a complaint that untreated waste water was being discharged into the River Thames, even in moderate rainfall conditions. The UK accepted that there were problems relating to the volume, load and frequency of wet weather discharges. This led to the establishment of the Thames Tideway Strategic Study. However, the UK did not accept that it was in breach of the Urban Waste Water Treatment Directive.

The CJEU found that the UK had failed to ensure appropriate collection and treatment of urban waste water. Several million tonnes were being discharged into the River Thames each year. It was incumbent on the UK to initiate in good time procedures to ensure compliance with the relevant EU legislation.

As six years has passed since the ruling, the Commission has sent one final reminder before referring the case back to the CJEU with a request for financial sanctions. The UK has two months to reply.

The Lee Tunnel is 6.9km long and opened in January 2016. It is intended to capture 16 million tonnes of sewage annually that would otherwise flow into the River Lea and eventually the Thames Estuary. The Thames Tideway Tunnel will be 25km long and is intended to modernise London’s sewer network. It is planned to be opened in 2023. In light of these infrastructure developments, it isn’t anticipated that any action taken by the European Commission/CJEU will dramatically alter the UK’s current plans but it is interesting that despite this the CJEU continues to throw its weight behind the Directive.

The EC’s press release can be found here

In a related matter, it has been reported that eels in the Thames are becoming hyperactive as a result of high levels of cocaine in the city’s waste water. Concentrations remain high across the week, indicating a consistent use. Water treatment plants have failed to filter the drug out of waste water, whilst downpours overwhelm the system resulting in waste water being carried directly into the river.

Government’s proposals on reforming water regulation and abstraction licensing

The Government’s recent consultation suggests that the long term planning of water resources is and will continue to be an interesting and significant area of work for environmental lawyers.

Under the Water Industry Act 1991 water companies must produce a number of management plans including water resource management plans (WRMPs), business plans and drought plans every 5 years to show how they will manage and develop water resources to balance supply and demand for water over a 25 year period. These are substantial documents which require considerable investment in time, expertise and which require substantial public consultation.

The abstraction of water is obviously a key element in the management of water resources and, with some exceptions, currently, anyone intending to abstract more than 20 cubic metres a day needs an abstraction licence from the Environment Agency (similar systems exist in Wales and Scotland).

Applications for licences or for amendments to existing licences are determined by the Environment Agency under a system of Abstraction Licensing Strategies based on catchment abstraction management studies which are prepared for each region in England (a similar system applies in Wales and Scotland). The process is governed by the Water Resources (Abstraction and Impounding) Regulations 2006.

In discharging their water abstraction duties, the EA must secure compliance with the Water Framework Directive 2000, avoid deterioration of natural habitats in Special Areas of Conservation under the Habitats Directive 1992 and comply with the Conservation of Habitats and Species Regulations 2010 (SI 2010/490) when making decisions concerning water abstraction licences.

However, in an important consultation that opened two weeks ago DEFRA notes that of around 13,000 abstraction licences which do not have time limits, over 1,500 may be unsustainable.

The consultation is detailed and technical and not easily summarised. In it, DEFRA sets out its long-awaited proposals for better long-term planning for water resources and drainage.

In broad summary, the government’s proposals include:

• Reforming abstraction licensing to clarify when the EA as licensing authority can amend licences.
• Amending existing legislation to allow a new charging methodology for Internal Drainage Boards.
• Changes to the process for modifying water company licence conditions to align it with the process applying to other utilities and the 25 year environment plan goals

Of particular interest, perhaps, is DEFRA’s proposal to amend OFWAT’s powers to modify licences. The consultation envisages a change from the current system so that, rather than referring the matter to the Competition and Markets Authority if the water company does not agree to a licence change, OFWAT can impose an amendment to a water company’s licence and, if the water company does not agree, the water company (rather than OFWAT) must appeal to the Competition and Markets Authority. This proposal will significantly strengthen OFWAT’s powers.

EFRA and EAC Committees to scrutinise the draft Environment (Principles and Governance) Bill

The Environment, Food and Rural Affairs Committee and the Environmental Audit Committee have launched a joint call for written evidence to scrutinise the draft Environment (Principles and Governance) Bill.

The Committees have invited evidence for the draft clauses, the policy papers, the statement of impacts, the memorandum from Defra to the Delegated Powers and Regulatory Reform Committee and the information paper on the policy statement on Environmental Principles.

All interested parties are invited to address the following questions, as well as any other aspect of the draft legislation, in writing by the end of January using no more than 3,000 words:

• Does the proposed constitution of the oversight body provide it with enough independence to scrutinise the Government?
• Does the proposed oversight body have the appropriate powers to take ‘proportionate enforcement action’?
• Are there any conflicts of interest or overlap with existing government bodies?
• As drafted are the principles legally enforceable? What will need to be included in the National Policy Statement to interpret the application of the principles?
• Are there any conflicts with other legislators or legislation, for example the Scottish Continuity Bill?
• Does the Bill meet the government’s commitment to non-regression from EU environmental standards?
• Is there anything else missing that should be included to meet the enforcement, governance and other gaps in environmental protection left by leaving the European Union?

With seven questions to answer, plus anything else one might wish to say, 3,000 words doesn’t seem like an awful lot per submission…

The full announcement and link for submissions may be found here

We published January’s Environmental Law Podcast recently – a monthly round-up of the latest developments in environmental law.

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