Authorisations and Undertakings

Enforcement Action

Section 18 of the Water Industry Act 1991 (the Act) requires the Secretary of State and the National Assembly for Wales (the Authorities) to take enforcement action for any enforceable provisions that are not trivial and are likely to recur. Enforceable provisions include:

• the duty to provide wholesome water, which relates primarily to breaches of the water quality standards;
• the duties or requirements imposed by Parts IV to VIII of the Water Supply (Water Quality) Regulations 2000 in England and the Water Supply (Water Quality) Regulations 2001 in Wales (the Regulations), namely:
• monitoring, including sampling and analysis;
• water treatment;
• the maintenance of records and the provision of information; and
• the duty to provide information to the Inspectorate under the Water Undertakers (Information) Direction 2004.

The Inspectorate initiates enforcement action for and on behalf of the Authorities. This usually begins with a ‘notice of intention to enforce’ being served on the company when the Inspectorate is satisfied that the contravention in question is not trivial and is likely to recur. The company then usually gives an undertaking to carry out a programme of work to secure or facilitate compliance with the required standard, or other deficiency identified, within an agreed timescale. However if the company does not give an undertaking, or does not comply with the terms of an undertaking, then the Inspectorate may make a provisional or final enforcement order for the purposes of securing compliance. To date few enforcement orders have been made.

The Inspectorate will not initiate enforcement action when a company, after becoming aware of a breach of a regulatory requirement, takes immediate remedial action and demonstrates that compliance has been achieved.

Authorisations (Authorised Departures)

The new Regulations contain wholesomeness standards that relate to the requirements of the 1998 EC Directive on the quality of water intended for human consumption (98/83/EEC). They also contain wholesomeness standards for national requirements, to reflect the aesthetic quality of the water at consumers’ taps as well as imposing microbiological standards for water leaving water treatment works and in service reservoirs.

Under the new Regulations, water companies may apply to the Authorities for authorisation to supply water that is not wholesome, if they have reason to believe that the water is failing or is likely to fail a standard. The application must also be copied to every appropriate local authority, health authority and the relevant WaterVoice customer service committee in the area supplied, who have the opportunity to make representations on the application.

An authorisation may be granted for a maximum period of three years and must specify the extent to which the standard may be exceeded during the period that the water company is taking steps to improve the quality of the supply and achieve compliance. If the Inspectorate considers that it is not possible for the company to achieve compliance within three years (for example if it has to build a new water treatment works) then the company is required to apply for a further departure.

Authorisations can only be granted if the Authorities are satisfied that the extent of the departure from the standard does not constitute a risk to human health. Authorisations are also not permitted for [non trivial] breaches of the standards for Enterococci and Escherichia coli (E.coli) at consumers’ taps.

Undertakings

The Inspectorate’s general policy (as set out in Information Letter 3/2003) is to initiate enforcement action and accept undertakings for non trivial breaches of national standards and non trivial contraventions of other enforceable regulatory duties.

Enforcement Orders

The Inspectorate will proceed with an enforcement order for [any non trivial] breaches of the standards for Enterococci and E.coli at consumers’ taps.

The Inspectorate will also proceed with an enforcement order where the extent of any [non trivial] failure of a Directive standard constitutes a potential danger to human health.

Further Information

Details of undertakings and authorised departures are available on each water company’s public record, which can be seen during normal office hours at any of its offices that are open to the public. You can find out more about programme of work that your water company is carrying out to improve your water quality by contacting your water company.