COVID-19 - How is the Northern Ireland Environment Agency dealing with Water Discharge Consents

The Northern Ireland Environment Agency (NIEA) published a temporary Regulatory Position Statement (Position Statement) on 28 April 2020 in response to the ongoing COVID-19 health crisis.

 NIEA recognises in the Position Statement that during this COVID-19 period the ability to run operations may be compromised by a lack of available staff, the need for social distancing and/or the need to protect staff and minimise transmission of the COVID-19 virus.

The Position Statement therefore sets out temporary conditions to specifically deal with compliance with Water Discharge Consents.

What does the Position Statement say?

As is always the case, NIEA require operators to ensure that activities do not endanger public health or the environment.  Operators must not cause a risk to water, air, soil, plants or animals or adversely affect the countryside or places of special interest.

NIEA still expect operators to make their best endeavours to meet the conditions set out in the Water (NI) Order 1999 in relation to discharge consents but the Position Statement sets out the following temporary conditions:

If a discharger is unable to meet all of their obligations set out in the Water Order Discharge Consent because of the exceptional circumstances, NIEA will expect operators to:

• prioritise compliance with conditions which directly protect the environment over those which are indirect controls;
• alert NIEA as early as possible and work with NIEA in implementing the solutions;
• document decisions made and actions taken.

The Position Statement will only apply where it can be demonstrated that the requirement to operate outside the normal regulatory conditions is a direct consequence of disruption caused by COVID-19.

What does this mean for NIEA enforcement action?

NIEA are currently not sampling effluent discharged under a Water Order Discharge Consent. Instead NIEA are using other means to check compliance such as downstream river observations, phone calls, written advice and remotely managed technologies.

The Position Statement is clear that any operator which deliberately takes the opportunity to cause harm to public health or environmental harm or in any way seeks to exploit COVID-19 will be subject to the full force of NIEA Enforcement Policy.

Any incidents must still be reported to NIEA but proportionate enforcement action will be taken in light of the current circumstances.

Implications

The Position Statement applies from 1 April 2020 to 30 June 2020, subject to reviews. This means the Position Paper will apply retrospectively for the month of April.

The Position Statement only relates to discharge consents so operators must ensure that all other environmental regulatory requirements are still be complied with. Whilst NIEA may not be undertaking samples, the Position Statement should not be used as an excuse to be complacent on environmental issues; NIEA’s enforcement powers remain in full force throughout this period.

One of the enforcement options available to NIEA is referral to the Public Prosecution Service. All Magistrates’ and Crown Courts’ in Northern Ireland are currently only dealing with urgent matters so there is likely to be a backlog of prosecutions under the Water (NI) Order 1999 once the COVID-19 crisis ends.

In the meantime we will perhaps see more collaboration between operators and NIEA to implement solutions to incidents in order to maintain protection of the environment in these exceptional circumstances.

It remains to be seen whether other regulatory controls enforced by NIEA will see similar papers, for example in relation to Industrial Pollution Control or Waste Management.

You can read the full Position Statement here.

TLT’s Belfast-based Planning, Environment & Clean Energy team advises on all aspects of planning and environmental law in Northern Ireland and are qualified in Northern Ireland, England & Wales and the Republic of Ireland. 

For more information, contact Andrew Ryan or Sarah Mulholland.

Contributor: Sarah Mulholland

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at April 2020. Specific advice should be sought for specific cases. For more information see our terms & conditions