Is the industry taking liberties?

In the second installment of a two-part article, Professor Robert Jackson and Elizabeth Ord continue their assessment of how the Human Rights Act could affect the water industry

There is a growing need to consider the integration of wastewater recycling into future water demand strategies. In the UK, 40% of total water use is within the domestic sector and hence urban water reuse through water recycling is a particularly attractive option to help meet future demands.

There are as yet no published water quality criteria in the UK which apply specifically to wastewater systems and it has often been assumed that recycled water should be treated to either potable or bathing water standards. This ambiguity is a matter of concern to those responsible for safeguarding public health because where specific wastewater reuse criteria have been developed, they have frequently been application-specific and based on the level to which people are likely to be exposed to the recycled water.

Hence, the UK’s water quality criteria have been formulated from the standpoint of protecting public health and to provide limits for faecal coliform concentrations in reused water. If wastewater is, for example, reused within a few hours for toilet flushing, a high level of biological oxygen demand (BOD) in the reused water will probably be inconsequential as there is insufficient time for significant odour-creating organic decomposition to occur. Moreover, the degree of human exposure to the reused water is very low and/or epidemiological risks are negligible – the risks involved do not warrant water quality monitoring as effective disinfection of water with relatively high level of turbidity is possible.

But some consumers may be horrified to think they are reusing, or even drinking sewage, even if it is comparable to the cleanest potable supply. Do they have any recourse under the Human Rights Act? Apart from their freedom of expression under Article 10, it is unlikely any challenge would succeed as long as the water companies meet the quality standards and consumers have access to information that their supply is treated sewage.

However, if the water company was in breach of standard, it might be confronted by consumers ready to enforce their rights. Article 8(1) on rights to private and family life could be invoked and possibly Article 2 on the right to have one’s life protected by law. Article 2 may seem a long shot, but it was alluded to in the Strasbourg case of Guerra v Italy, July 1999, where residents successfully obtained compensation after complaining about the risks of living next to a dangerous chemical works. A notable feature of the judgement was the emphasis placed upon the positive obligation to inform people about health matters. This could extend to carrying out and publishing a review of health risks if circumstances warranted. A failing STW might pose a greater risk than normal to the consumer and would probably cause the water company to breach the Surface Water (Abstraction for Drinking Water) (Classification) Regulations 1996 SI 1996 No. 3001.

As the Department of Environment, Transport and the Regions (DETR), strengthens its resolve to implement sustainable development, water abstraction is being targeted for reform. The government advocates tradeable abstraction licences, where total abstraction capacity is fixed and holders of abstraction rights can buy and sell capacity. The Environment Agency (EA) could act as a brokering service, providing information on bid and offer prices.

New abstraction licenses are proposed with a total capacity which will accord with the catchment abstraction management strategies (CAMS) for each of the 130 catchments in England and Wales. A national strategy is due for publication in December 2000. The strategies will be revised every six years in order to comply with the EC framework directive on water resources, which was finally agreed in June 2000. This directive aims to achieve ‘good status’ surface and groundwaters throughout member states within 15 years and controlling abstraction is one way of contributing to this.

In England and Wales, approximately two-thirds of all abstraction licences are ‘licences of right’, granted in perpetuity mainly in the 1960s. Currently, these licences cannot be revoked or amended without the payment of compensation. The government wants all new licences from April 2001 to be time-limited for about 15 years and would like existing licences amended to reflect a similar restriction. It has suggested charging more for those licences, which are not limited and are of right, and also removing the rights to compensation from July 2012.

Time-limited licensing may discourage investment and reduce business efficiency. Could there be any recourse under the Human Rights Act to prevent interference with existing licences? Again the possibility of invoking Article 1 to the 1st Protocol, on Protection of Property, is a possibility as the Article is not restricted to physical goods. However, the government intends to introduce new legislation, which will wipe out this option. There appears to be little else that may assist.

The world of water regulation is undergoing rapid change. The Human Rights Act may have a part to play for the benefit of the consumer and the environmentalist, but there is precious little to help water businesses. If the government foresees a difficulty with any of its proposals, in reality all it has to do is pass new legislation and this will remove most of its obstacles to change. It is debatable what difference the Human Rights Act will make to water law in the long run.

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