Water Pollution Offences
For England and Wales, the principal water pollution offences are contained in the Environmental Permitting (England and Wales) Regulations 2010: regulations 38(1) and 12(1). The offences are similar to ones that used to be set out in section 85 of the Water Resources Act 1991.
It is an offence to cause or knowingly permit a water discharge activity unless you are complying with an environmental permit or exemption. Things that count as water discharge activities are listed in Schedule 21. They include:
- discharging poisonous, noxious or polluting matter or solid waste matter into inland freshwater, coastal waters and relevant territorial waters. The legislation does not define poisonous, noxious or polluting. These words are normally given their ordinary meanings.
- discharging trade or sewage effluent into inland freshwater, coastal waters and relevant territorial waters
- cutting or uprooting substantial amounts of vegetation in any inland freshwaters, without taking reasonable steps to remove it.
It is also an offence to cause or knowingly permit a groundwater activity unless you are complying with an environmental permit or exemption. Broadly speaking, groundwater activities cover discharges of pollutants directly into groundwater, or indirectly. An example of an indirect discharge would be where some polluting liquid like paint is poured onto the ground and gets into the groundwater by percolating down through the soil. Details of exactly what counts as a groundwater activity are given in Schedule 22 to the Regulations. This part of the legislation is quite complicated, because it is giving effect to three pieces of European legislation - the Groundwater Directive, the Groundwater Daughter Directive and the Water Framework Directive.
Causing or knowingly permitting
The courts take a broad approach when deciding whether a person (or a company) caused a water discharge or groundwater activity. There is no need to show that a person knew about the activity or intended it. If pollution is due to a chain of events, a person may be regarded as having caused it even if someone else's actions immediately triggered the pollution. Take the example of a river that is polluted because an unknown person turns on the tap of a diesel tank stored by the river bank. Depending on the exact circumstances, the company that owns the tank as part of their operations might be charged with causing the pollution. This strict approach is why this is know as a strict liability offence.
Knowingly permitting includes cases where a person (or company) is aware of a polluting incident but refuses to take steps to stop the pollution.
A person or business can apply to the Environment Agency for an environmental permit to do a water discharge or groundwater activity, like discharging treated sewage effluent. They must comply fully with the permit and all the conditions. Failure to do so is an offence.
Some water discharge activities and groundwater activities are treated as exempt activities. These include certain small discharges of sewage from treatment works and septic tanks. Exempt activities can be carried on without an environmental permit provided that the person responsible registers with the Environment Agency, complies with special rules and ensures that they do not cause water pollution.
Inland freshwater, coastal water, relevant territorial water and groundwater
The offences cover pollution of different types of water. The water types are defined in section 104 of the Water Resources Act 1991. Taken together they cover virtually all groundwater and surface water - including lakes, ponds, watercourses and rivers, estuaries, coastal waters and the territorial sea out to 3 nautical miles.
If a person is tried and convicted in a Magistrates Court, they could be fined any amount and/or sentenced to up to twelve months imprisonment. If they are tried and convicted in a Crown Court they could face an unlimited fine and/or be sentenced to up to five years imprisonment.
It is a defence to a water pollution offence if the activity was done in an emergency in order to avoid danger to human health, provided that reasonable steps were taken to minimise pollution and notify the regulator promptly. It is also a defence if the discharge is from a mine that was abandoned before 2000.