The Role of Public Bodies in Addressing Freshwater Pollution

Government Agencies are public or governmental bodies with duties and powers set out by environmental laws. There are usually various departments which are responsible for protecting and improving the different aspects of the environment, including water sources. 

Frequent problems with regulators

Sometimes there are many different environmental agencies, and these can be disjointed and ineffective. For example, in the UK, there are currently many different regulators with overlapping responsibilities, such as one for protecting wildlife habitats from pollution, another for setting rules related to agricultural pollution, another responsible for regulating sewage pollution, another responsible for water monitoring, and yet another for economic water oversight. Meanwhile, decisions on whether to approve a polluting development are made at the local level, while policy and laws are set at the national level. 

Engaging with agencies

Sometimes, the department responsible for regulating pollution from factories or agriculture is not the same regulator responsible for monitoring water, so it is frequently necessary to engage with and take legal action against more than one public body. Also consider both local and national authorities and how you might engage with both. Before taking legal action, it is always important to engage with public authorities by submitting freedom of information requests and complaints, bringing the issues to their attention and giving them an opportunity to resolve the issues. Courts frequently require that a claimant show they have tried to resolve the issue before taking legal action, so complaints mechanisms also provide a paper trail of evidence to show a judge. 

Water agencies are responsible for regulating the provision of freshwater for human use and the treatment of wastewater. Governance and management of water can often be fragmented, with overlapping jurisdictions between regional or local bodies and national bodies.  

Local governments may be responsible for the distribution of freshwater for domestic or agricultural use. They may also have the authority to make planning decisions regarding industrial developments (such as factories).

Examples 

1. In Brazil, the National Water Resources Management System comprises of multiple levels of government, including The National Council on Water Resources, The National Water Agency, The State and Federal district Councils on Water Resources, River Basin Committees, the Water Agencies, and other organs of Federal and State power (Art. 33, Law No. 9433 – Brazilian National Water Resources). River Basin Committees of basins who territory includes indigenous lands must include representatives from both the National Indian Foundation and the indigenous communities living or having an interest in the basin. (Art. 39).

1. In the UK, the Department for Environment, Food and Rural Affairs handles issues such as farming, land use, and policy, while the Environment Agency is responsible for licensing, permits, enforcement, and water quality monitoring. Natural England is responsible for protecting biodiversity and protected species and habitats.      Ofwat is responsible for the economic regulation of the privatised sewage industry.   With so many different bodies responsible for separate aspects of the entire system of environmental regulation, policy, and enforcement, it can mean that problems fall through the cracks, or public bodies disclaim responsibility easily. For that reason, the government has decided to abolish Ofwat and create a new regulator that will take responsibility of water functions across Ofwat, Environment Agency, Natural England and Drinking Water Inspectorate. 

Complicating things still further, planning decisions are made at the level of local government by local authorities, or District Council Planning Committees. It is their job, in consultation with the other agencies and the public, to assess the water impacts of potentially harmful developments, such as industrial animal farms, data centres, or large housing developments, and decide whether to grant permission. If granted, it is also the responsibility of the local authority to ensure that developers are required to carry out and implement certain planning conditions that will safeguard water resources. 

In certain countries, consumer protection agencies may monitor and enforce compliance with consumer protection laws, including competition laws where water is provided by public companies, to ensure available freshwater is not polluted. 

Examples

1. In Peru, the Consumer Protection Agency of Peru (Indecopi) operates to protect and defend the rights of consumers against companies under the Peruvian Consumer Protection and Defence Code. It has brought action against the oil company Repsol over an oil spill that impacted two protected biodiversity areas: the Ancon Reserved Zone and the Pescadores Islets.

In some countries, private companies (rather than public utilities) are responsible for the water supply. In these situations, it is common for laws to exist that make a public regulator or water agency responsible for making sure that the water companies provide consumers with good quality water at a fair price. In practice, privatisation of water has led to numerous complaints that private water companies have focused more on making profits than on provision of a good service.

Example

The UK has adopted this approach, and the Government privatised the water industry in 1989. It is regulated under the Water Act 1989 by an economic regulator, OFWAT. Shareholders in some of the UK’s largest water companies took out tens of billions of pounds but failed to invest, with firms then raising household bills to fund future spending. Much criticism has been levelled at the water companies, many owned by foreign shareholders, for failure to invest to the extent necessary to cope with sewage and agricultural run-off. Ofwat is now planned to be abolished and replaced by a larger regulator to oversee more aspects of water management.

International bodies, such as the UN Environment Programme, the World Health Organisation or the UN High Commissioner for Human Rights, provide international oversight over aspects of freshwater pollution. While principles set out by the UN are not directly enforceable in domestic law, the UN sets the agenda for international law, which is then frequently solidified by treaties and later implemented into domestic law. Citing international legal principles and treaties can often help make your arguments stronger. 

Example

1. You can submit a complaint through the UN Special Procedures, asking the UN Special Rapporteur to make communications to try to stop the human rights abuses through political pressure. For example, the representative in South America of the Office of the UN High Commissioner for Human Rights can alert the governments of South American countries and the media where there is insufficient action taken in response to complaints. 

1. In States that have ratified the Optional Protocol to the UN Convention on the Rights of the child, children may be able to file a submission arguing that their rights have been violated and the Committee may transmit the submission to the State requesting urgent measures to address the issue (Article 5). This could be relevant where drinking water is contaminated, for example, and the child’s right to healthy environment is breached.