Why “just” enforcing existing laws and litigation to compel that enforcement is one way, but is certainly not “the only way” to go about trying to restore and protect our rivers.

Though they are members of the CaBA chalk stream restoration group (CSRG) Wildfish nevertheless reserves the right to criticise our work. Personally, after slaving away at our chalk stream restoration strategy, I find it a bit of a downer when Wildfish pick holes in it from the sidelines. But stepping back and taking the more rounded view, I know that contrary and critical voices are essential. 

Here’s mine.

Wildfish has written twice now dismissing the amendments some on the CSRG have worked hard to include in the Levelling Up and Regeneration Bill. They say that these amendments won’t really do anything to add protection to chalk streams: a literal and pedantic viewpoint, in my view, though it may be motivated by the desire to clip the wings of claims that these amendments are THE whole of the greater protection we have all been looking for.

To be clear, we’ve never made those claims. I certainly haven’t. The amendments are one more incremental action along the way: they are one of the thousands stitches needed to heal the death by a thousand cuts our chalk streams have endured.

Of themselves, the amendments simply cite that protecting chalk streams from the impacts of abstraction and pollution is one example of the ways in which environmental outcome reports (EORs) may be drafted and aimed. 

However, no matter which way up I turn the text in the bill (see the tail of this blog for the wording), no matter how hard I squint, or how peevish I try to make myself, I just can’t see a problem with the fact that the protection of chalk streams is now cited on the face of the bill as THE example of the kinds of outcomes the EORs might seek to specify. 

As the notes make clear: “The proposed amendments add chalk streams into the definitions of  ‘environmental protection’ and ‘natural environment’, making it clear that when setting the outcomes that will drive the new regime, the Government may set explicit outcomes as to the protection of chalk streams”.

Protecting chalk streams in the planning and delivery of new development was a specific recommendation of the CaBA chalk stream strategy that Wildfish agreed with. So it is hard to discern why they would have such a problem with the LURB amendments now. Especially given that following the publication of their first critical blog on the matter back in the summer and before the government’s response amendment had been finalised I asked Guy Linley-Adams (Wildfish’s legal expert and author of the critiques) to lend his expertise to our responses to the drafts. The invitation was ignored. 

This goes to the heart of what seems to me a unnecessarily unary approach to addressing the restoration and protection of our environment in general, chalk streams in particular. Guy ends his latest blog saying: 

“The only way to protect chalk streams, and other rivers come to that, is for the Government to apply its existing arsenal of environmental legislation – which sadly lies under-used and under-enforced –  to cut pollution and abstraction.”

The “only way”? Really?

Education is quite a good way, surely. So are grants and incentives of various sorts. Actually going out there and restoring streams is pretty effective too. I know that from experience. It shows what can be achieved and exhorts others – including stakeholders like farmers, drainage authorities and even the water industry – to put their shoulders to the wheel. Wild trout don’t give a monkey’s who pays for the work or if it is driven by the law, benevolence or self-interest. 

Not only is applying existing law not the “only way”, I have to wonder if it’s even a very effective way. These so-called arsenals of legislation have been only partially effective in the past. Why will they be any more effective in the future? 

In early July, Wildfish brought this “just apply the law” refrain to the High Court over a different matter: storm overflows. Wildfish stated that they had “one simple ask of the Government: enforce the existing law to stop water companies dumping raw sewage into our rivers”.

Wildfish expanded on what they wanted the government to do:

“1. Enforce the law (in existence since 1994) and stop water companies from dumping raw sewage in rivers. 

2. Get rid of the current plan for sewage pollution (known as the Storm Overflows Discharge Reduction Plan) which effectively allows water companies to continue to break the law for a further 27 years until 2050 and develop a plan that is in line with the existing law. 

3. Ensure water companies foot the bill for any increased sewage capacity required by the law, not their customers.”

As a co-author of the 2017 WWF report – Flushed Away – that brought the issue of raw sewage discharges and lack of investment to public attention, I watched for news of this day in court with interest.

The Government’s Storm Overflows Discharge Reduction Plan had been much maligned. It set dates by when water companies had to limit stormwater overflows to no more than 10 spills per year, or fewer than 10 if ecological harm is still detectable. Ecological harm was defined. To measure the ecological impact, monitors would be installed up and downstream of all discharges. The criticism was that this implicitly legalised spills that were already illegal under both the Water Industry Act, and more specifically the Urban Waste Water Treatment Directive. Arguably, it also allowed water companies to address the infrastructure failings through increased bills. 

But it was, at least, a plan. Which, even if flawed, was one whole plan more than we’d ever had before. It was probably better, therefore, from the point of view of a fish or a mayfly.

Wildfish says that the law (forbidding the dumping of sewage) has been in existence since 1994: so they’re referring to the Urban Wastewater Treatment Directive 1994 (UWWTD) which charged water companies to “secure the limitation of pollution of receiving waters due to storm water overflows” via measures such as “dilution rates or capacity in relation to dry weather flow, or … acceptable number of overflows per year”. Note, the UWWTD referred specifically to sewage treatment works over a given size (10,000), discharging to Sensitive Areas (eutrophic) (SAe) catchments (not all UK catchments).

Before this, a more wide-ranging Water Industry Act 1991 placed a duty on water companies “to further the conservation and enhancement of natural beauty and the conservation of flora, fauna” and to “take into account” the effect of sewage processing “on the beauty or amenity of any rural or urban area or on any such flora, fauna etc”. Before this, there was a similar Act in 1951.

In fact, polluting rivers with sewage had been against the law since 1876, and in the form of various edicts and injunctions deriving from common law, since long before that – all reflecting the fact that discharges of raw sewage and other noxious matter into British rivers has been a problem since … forever. As have the tribulations of policing the issue through the courts.

The 1876 Rivers Pollution Prevention Act was largely a response to the creation of vast city sewerage systems which, in dealing with one problem – human health – created another – pollution of the natural environment. Bazelgette might have chosen the wrong option (combined sewers – which are largely the origin of these raw sewage problems today) but anyone who thinks sewage discharges are worse now than ever before hasn’t read Thomas Rammel’s report to the General Board of Health into the supply of water to and the sanitary conditions of the inhabitants of High Wycombe, written in 1850. 

This report is best not read on a full stomach. The poor of High Wycombe literally lived in shit. They shat into latrines dug yards away from drinking wells. They shat into the same stream from which they took water to drink. Open sewers ran through front rooms. People would sneak around town at night with boxes of shit and chuck it over walls to get rid of the stuff. More or less everyone who lived and worked in the furniture and factory districts suffered from what they called “low fever”, also known as cholera. Many died from it, or lived blighted lives.

The public health miracle of a working sewerage system came only slowly to High Wycombe. The wealthy councillors of the town were reluctant to spend the money. But nationally, sewerage systems progressively relieved the workers of the industrial revolution from living conditions that were inhuman, not to say lethal, by corralling all that shit through flushing latrines into pipes and washing it away downhill to rivers. 

It’s easy to forget in 2023, disgusted as we are by the raw sewage scandal, that to the very same sewerage system can be attributed about half of the increase in longevity of the British people that occurred between 1850 and 1950.

But the 1876 Rivers Pollution Prevention Act didn’t really improve things for rivers. It was rather vague about what pollution was and vague about the mechanism of enforcement. The prohibition on dumping any form of pollution into a river was absolute except that an alleged offender could clear the charge by showing they had used the “best practicable and reasonably available” means to render their discharge harmless. With sewage, the “practicable” means were actually pretty ineffective, at least until the invention of filter beds in about 1900: the best of the preceding methods was the laborious privy pan system, which collected human poo and carted it away for use as fertiliser. 

In his book The River Pollution Dilemma in Victorian England: Nuisance Law versus Economic Efficiency Leslie Rosenthal shows how the 1876 Act had been preceded for centuries by a common law, known as riparianism, based on the principle that owners of waterside property can make reasonable use of the stream so long as they do not reduce its quality or quantity for other users. Under that principle anyone dumping shit in a stream clearly violates the rights of other users downstream of them.

However, under a secondary principle (and if not ‘principle’ then practice), of the balance of convenience, polluters en masse (a civic authority, for example) might have based a defence on the fact that more people gained from the usage of the stream for carrying away sewage than the handful of private landowners who lost out due to the nuisance. English courts did not formally entertain balance of convenience arguments. But informally, Rosenthal argues, they effectively did. Judges were generally unwilling to apply remedies that would lead to economically inefficient outcomes: an example of such “inefficiency” (according to the way we value things) might might be compelling a city to spend millions of pounds in order to avoid harming the rights of one downstream river user. 

The way judges avoided enforcing such so-called “inefficient outcomes” regardless of the rights and wrongs, was to prevaricate, allowing contingencies, postponements and delays which resulted, effectively, in a continuation of the pollution with only incremental improvements. They kicked the can down the road. The courts never decisively acted to stop an incidence of sewage pollution in its tracks.

Any of this sound familiar?

Basically, a far greater number of people derive economic value from being able to shit, flush and forget as cheaply as possible, than are adversely impacted by that balance of utility and economics. The same with abstraction and being able to turn on the tap and get clean water whenever you want it. That’s worth more to society – according to the ways we value things (just to be clear: I’m not saying I agree with those ways) – than a brimful chalk stream 40 miles away.

If the courts have acted in this way for several centuries, I’m not sure why anyone would think they’ll suddenly get out the other side of the bed and apply the law any differently.

I know little about the Wildfish day in court except what is reported on their blog. The government answered the charge that the Storm Overflows Discharge Reduction Plan implicitly legalises sewage discharges which are illegal by stating that it doesn’t refer to breaches of the 1994 law. This had already been made pretty clear anyway, in the Environment Act where it was stated that the new duty stood in addition to those in the Water Industry Act and UWWTD.

Wildfish believes this exposes the plan as “smoke and mirrors” and states, “OFWAT now has no choice but to get on and enforce the Urban Wastewater Treatment (England and Wales) Regulations 1994”.

We’ll see. But wouldn’t it be great if Wildfish aimed a complaint in the courts directly at a water company, on behalf of a downstream complainant?

Anyway, isn’t the government’s clarifying response a good outcome in that it confirms that the Storm Overflows Discharge Reduction Plan applies to ALL storm overflows, not just the ones which are operating illegally on sewage works serving over 10,000 people within UWWTD SAe catchments? Since all raw sewage discharges cause an ecological nuisance, a time-bound, functional plan to address them all according to a defined standard of ‘no adverse ecological impact’ is surely better than ONLY relying on the courts for redress under the existing laws, when history shows that is not working as well as we would like it to.

Why the image of Canute? His courtiers had flattered his power. He wanted to show them that even the power of kings was limited. Investing ALL in the courts is as foolhardy as commanding the tides. I’m not saying that we shouldn’t use the courts or that having robust environmental laws is pointless. I’m saying that “just” applying the law through the courts isn’t the “only” way, as some claim.

As for the amendments to the Levelling Up and Regeneration Bill, much will now depend on the EORs and we very much hope and expect to see “explicit outcomes as to the protection of chalk streams” in due course. I’m betting it’s more likely we’ll get them now, than it would have been had chalk streams not been cited. This won’t amount to VE-day for chalk streams, but it will help.

––––––

Notes ref the Levelling Up Bill:

The government’s amendment to the Levelling Up and Regeneration Bill, in relation to chalk streams reads:

Clause 143, page 172, line 3, at end insert ‘(including, amongst other things, the protection of chalk streams from abstraction and pollution)’

Member’s explanatory statement – This amendment clarifies that the definition of ‘environmental protection’ includes the protection of chalk streams from abstraction and pollution.

Clause 143, page 172, line 12, at end insert ‘(including, amongst other things, chalk streams)’

Member’s explanatory statement – This amendment clarifies that the definition of ‘natural environment’ includes chalk streams. 

Purpose and effect of amendments

The purpose of an environmental assessment is to highlight the effects of development activity on the environment. Existing processes are derived from EU Directives and will be replaced by a new system of Environmental Outcomes Reports. Instead of reporting on the significance of an effect on the environment, EORs will instead report on the contribution of that plan or project to the delivery of the government’s environmental outcomes, which will reflect the government’s ambitions set out in the Environmental Improvement Plan. Regulations made by the Secretary of State under this Part (‘EOR regulations’) may specify outcomes relating to environmental protection in the United Kingdom. The amendment will mean that, the definitions of ‘environmental protection’ and ‘natural environment’ explicitly include reference chalk streams – raising their profile in the process of setting outcomes. A limited number of outcomes will be agreed across government and other outcomes are likely to cover matters such as air quality and biodiversity. These will be supplemented by outcomes specific to each of the 16 affected legislative regimes which range from forestry to marine plans. The proposed amendments would add chalk streams into the definitions of ‘environmental protection’ and ‘natural environment’, making it clear that when setting the outcomes that will drive the new regime, the Government may set explicit outcomes as to the protection of chalk streams. The amendment will enable the government to ensure the EORs suitably reflect our chalk stream interest when they are developed with DLUHC.