Regulation of Private Drainage Systems

On the 6 April 2010 with apparently little fanfare thegovernment introduced new regulations relating, amongst otherthings, to the discharge of sewage effluent and associated liquids(or presumably solids) from septic tanks, cess pits or otherdomestic sewage systems which are not connected to the publicdrainage system and which are not a closed system with no dischargepoints.

Whilst properties in urban areas will inevitably beconnected to the public drainage system there are many areas of thecountry where connection to the mains, even for new buildproperties, is not an option (as they are too remote) or was not anoption when the property was constructed and which remain onprivate systems even though the public drainage system has nowreached them.

These new regulations apply to and affect any property whichis currently served by such a private system and, as one wouldexpect, any new build property which will have a private drainagesystem when completed.

The regulations in question are the Environmental Permitting(England and Wales) Regulations 2010 (SI 2010/675) made in exerciseof powers conferred by sections 2 and 7(9) of, and Schedule 1 to,the Pollution Prevention and Control Act 1999.

The initial obligation is set out in section 12(1)(b) andrequires that no-one can cause or knowingly permit a waterdischarge activity (see below) or a groundwater activity unlessthey have been authorised to do so by an environmentalpermit.

Certain types of activity are designated as exemptactivities meaning that a permit will not be required, however,registration with the environment agency seems to still benecessary, even if the activity itself is exempt.

Water Discharge Activity

A water discharge activity is, for the purposes of thisarticle, the discharge of sewage effluent into inland freshwaters,coastal waters or territorial waters. (It also includes poisonous,noxious, polluting or waste matter or trade effluentdischarge).

So, if your private drainage system discharges into a river,stream or even, perhaps a pond or other body of water you willprobably be carrying on a water discharge activity.

Groundwater Activity

A groundwater activity includes the discharge of a pollutant(which is helpfully defined as something that might causepollution!) that results or might lead to the direct input of thatpollutant to groundwater or any other discharge which might lead tothe direct or indirect input of a pollutant togroundwater.
Groundwater is any water which is below the surface of theland so would include the water table, underground streams,aquifers etc.

So, if your private drainage system has `weeper` or `finger`drains which discharge into the ground from the septic tank, cesspit or sewage system (whether before or after an internalfiltration or settling process) you will almost certainly becarrying out a groundwater activity for the purpose of theseregulations.

Permit Requirements

If you are carrying out either a groundwater activity or awater discharge activity the basic position is that you need tohave a permit from the regulator (which is currently theEnvironment Agency) to carry out that activity.

This is the case even if your activity began before 6thApril 2010 when the regulations came into force (even if, beforethat date, no permit would have been required)

However certain types of activity are designated as "exempt"meaning that no permit is required but registration of the activitywith the Environment Agency is still necessary.

Exempt Activities

In relation to water discharge activities a small sewageeffluent discharge of 5 cubic metres per day or less (according tothe EA guidance a domestic property with 8 bedrooms will dischargeabout 1.8 cubic metres per day) from a sewage treatment plant isexempt. This seems to be because a sewage treatment plant is moresophisticated than a septic tank or cess pit as it is more in theway of a mini sewage works (requiring power and regularmaintenance)whereas a septic tank or cess pit is more of a naturalprocess whose discharge is less clean.

In relation to groundwater activity a small sewage effluentdischarge of 2 cubic metres per day or less is exempt. This can befrom septic tanks, cess pits or sewage treatmentplants.

Registration as exempt

There is a positive obligation in the regulations to applyfor registration as exempt or, if you are not exempt, for a formalpermit to carry out the discharge.

For water discharge activities the obligation to registerarose on the 6th April 2010 and, if you are currently carrying outsuch an activity without a permit or having registered anexemption, you are committing an offence (see below)

For groundwater activities the obligations are slightly lessonerous. If your discharge is exempt then you have until 1stJanuary 2012 to register as exempt but if you need a permit theobligation arose on 6th April 2010 and, if you are carrying out anon-exempt activity without a permit you are committing anoffence.

You can make an application either online or through thepost with the environment agency to register an exemption. For moredetails please see: www.environment-agency.gov.uk

Offences

A breach of the various obligations in the regulations canlead to fines of various levels depending on the breach and / orimprisonment so they are certainly not to be takenlightly.

Ongoing requirements

As one would expect in order to maintain an exemption youmust ensure that you undertake proper inspection, operation andmaintenance of your system, regularly remove excess sludge from thesystem by a properly authorised contractor and make and keeprecords of maintenance and repair, which must be kept for at leastfive years. In addition, the treatment system must not causepollution.

If you sell or leave the property there is currently noobligation to tell the EA. However, you must pass written detailsof the exempt discharge onto the new owner. In reality this meanspassing any and all relevant information to the solicitor dealingwith your sale.
You need to tell them that there is an exempt discharge atthe property, what it is (e.g a discharge from a septic tank to aninfiltration system) and the conditions they must keep to stayexempt. You must also pass on to the new occupier your maintenancerecords.

Steps to take

If you are the owner of a property which carries out a waterdischarge activity then you must take steps to register with the EAnow as exempt or obtain a permit if your activity is not exempt asyou are already in breach of the regulations.

If you are the owner of a property which carries out agroundwater activity then you have a window of less than a year totake steps to register your system as exempt (assuming that it isexempt). If it is not exempt then you must obtain a permit now asyou may already be in breach of the regulations.

Registration as exempt is currently free but if the EAdetermines that you are not exempt they will suggest that you applyfor a permit which does carry a fee.

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.