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
Offences include:
- discharging poisonous, noxious or polluting matter or solid waste matter into inland freshwater, coastal waters and relevant territorial waters.
- discharging trade or sewage effluent into inland freshwater, coastal waters and relevant territorial waters
- cutting or uprooting substantial amounts of vegetation in any inland freshwater, without taking reasonable steps to remove it.
The law – “Causing or knowingly permitting”
For a successful prosecution, the prosecution (normally the environment agency) 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.
Knowingly permitting also includes instances where a person (or company) is aware of a polluting incident but refuses to take steps to stop the pollution.
Environmental permit
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.
Exemptions
Some water discharge activities and groundwater activities are treated as exempt activities. These would include thigs like septic tanks or small discharges of sewage. Exempt activities can be carried on without an environmental permit provided that the person responsible registers with the Environment Agency and complies with certain rules.
Inland freshwater, coastal water, relevant territorial water and groundwater
The offences cover pollution of different types of water including lakes, ponds, watercourses and rivers, estuaries, coastal waters and the territorial sea out to 3 nautical miles.
Penalties
If a person is tried and convicted in a Magistrates Court, they could be fined any amount and/or sentenced to up to six 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.
The court can also impose ancillary orders such as disqualification from acting as a director or order you to take remedial steps.
Defences
It is as a strict liability offence. This means that intention is not a pre-requisite to proving the offence.
If you can prove the offence was committed in an emergency to avoid danger to human health this can be a defence, provided that reasonable steps were taken to minimise pollution and notify the regulator promptly.