Official Report: Minutes of Evidence

The Chairperson (Mrs Erskine): I welcome Mr David Reid, the chief executive of the Northern Ireland Environment Agency (NIEA); Dr Richard Crowe, the director of NIEA's regulation and enforcement division; and Mark Cherry, the head of NIEA's regulation unit. We appreciate your coming to the Committee today and giving your time. There are a number of matters that we want to discuss that are specifically related to the waste water capacity issues that we brought up with you.

I will allow you about 10 minutes to make a presentation. That is unusual for me — I am usually a five-minute person — but they are important issues, so I want to give you a bit of time to discuss them. After that, we will go to members' questions.

Mr David Reid (Northern Ireland Environment Agency): OK, Chair. Thank you for the opportunity to present NIEA's evidence on waste water capacity issues to the Committee this morning. I will start by acknowledging the delay in presenting to the Committee. We felt that it was important to clarify our roles and responsibilities and recognise the primacy of the AERA Committee before presenting to you. I am the chief executive of the Environment Agency, and I am joined by Richard, who is our director of regulation and enforcement, and Mark, who is our deputy director and head of the regulation unit.

The agency's primary purpose is to protect and enhance Northern Ireland's environment and, in doing so, deliver health and well-being benefits and support economic growth. The agency has three key priorities that are at the core of our delivery for 2024-25, and those have been agreed with the Minister: environmental regulation, protection and enforcement; water quality; and nature recovery. Those priorities reflect our role as Northern Ireland's principal environmental regulator and environmental adviser, protecting and enhancing our natural environment whilst regulating activities that can adversely affect it.

Our ambition is to address the ongoing threats to nature and water quality in Northern Ireland from a range of factors, including climate change, pollution of our fresh water environment and the continued decline of our biodiversity. Significant work is required to address those threats, the importance of which is recognised in the new Programme for Government (PFG), which includes a priority to protect Lough Neagh and the wider environment. The challenges that we face in our natural environment, particularly our aquatic environment, have, in the past few years, become very apparent. The presence of blue-green algae in our lakes and rivers, including Lough Neagh, and in our coastal regions is visible evidence of the environmental challenges that we face.

The agency has a statutory responsibility to ensure that activities that impact on the environment and are required to be authorised by the agency are effectively regulated to ensure compliance with those authorisations. Regulation and enforcement are central to how we support economic operators whilst safeguarding our environment. That is a principal guiding factor in our decision-making and operational delivery.

As the principal environmental regulator for Northern Ireland, our work with Northern Ireland Water (NIW) is of the utmost importance to ensure that the environmental impacts of the provision of drinking water and treatment of waste water are minimised. That requires enforcement when things go wrong, and we do not shy away from taking all the necessary steps, as set out in our enforcement policy.

DAERA's enforcement policy is applied when NI Water is in breach of the conditions of a discharge consent issued under the Water (Northern Ireland) Order 1999 or has been the cause of a pollution incident. That said, we continue to work closely with NI Water to help it to avoid causing environmental impacts in the first place. We do that through the range of working groups that we listed in our written briefing. One example is the work on environmental modelling, the output of which helps to identify the most effective interventions to reduce the impacts of waste water discharges.

The primary purpose of the briefing is to provide the Committee with oral evidence on the waste water capacity issues indicated in your correspondence of November 2024 that are relevant to our regulatory remit and that we can comment on. Those areas are the groups and organisational structures that NIEA and NI Water sit on together and the work involved in each; the testing and recording of waste water and pollution incidents that are carried out by the Environment Agency; our monitoring of dry spilling; and the statement of regulatory principles and intent (SORPI). I ask the Committee to note that a written briefing on those matters was presented to the AERA Committee on 27 February, given the responsibilities of the AERA Committee and its primacy regarding NIEA responsibilities.

In your correspondence of November 2024, Chair, you indicated that you would like to discuss other issues that, we consider, sit outside our regulatory remit. For the purposes of clarity and completeness, I will list those issues: solutions for areas of planning restrictions where there is a blanket ban on new developments; areas in which NIEA and NI Water work together to provide solutions for additional capacity; engagement and thoughts on a water and sustainable drainage Bill; powers that the agency has or recommendations that it can make in relation to NI Water's operations; and barriers to compliance for NI Water and what is needed to address them.

It would be inappropriate for the agency to express an opinion on planning matters for which the statutory decision-making powers reside elsewhere. To be clear, NIEA has a statutory role as a consultee and as a regulator and must therefore take care to provide comments in specific circumstances for specific projects. I have highlighted the fact that the agency and NI Water work together in a range of groups, but decisions relating to additional capacity will always be for NI Water to take. NI Water's operations and any barriers to compliance are, again, matters for NI Water's strategic planning and operational delivery, and NIEA has no role in such decisions.

As you noted, Chair, I provided a written briefing on the matters relevant to NIEA, and I presume that members will have had an opportunity to read through it. If you are content, we are happy to move to questions.

The Chairperson (Mrs Erskine): Super. That was under 10 minutes, so thank you very much. We appreciate your time and your coming to the Committee today. The issues are important and interlink with the issues that are going on in NI Water.

My first question is simple. Obviously, you are seeing pollution incidents increase: what are the main causes of that?

Mr Reid: I will kick off with some general information, and I may pass to Mark or Richard to pick up on some of the finer detail.

Our understanding is that roughly a quarter of pollution incidents specifically relating to water quality are a result of waste water treatment by NI Water; about 10% or 11% are caused by septic tanks; and about two thirds of the pollution comes from agricultural sources.

The Chairperson (Mrs Erskine): Would the NI Water percentage increase if there were better monitoring of NI Water and the waste water issues?

Mr Reid: The information on which I based those figures came from a fairly in-depth review that the Agri-Food and Biosciences Institute (AFBI) carried out. It did not result from our monitoring of waste water issues. It came from an independent report that AFBI completed a few years ago; I cannot remember when. I can get more information on that for the Committee, if it would help. Research such as that has really helped to improve our understanding of the impact of waste water treatment on water quality in recent years.

Richard or Mark, do you want to add anything on flow monitoring and other things?

Mr Mark Cherry (Northern Ireland Environment Agency): It might be helpful to comment on the compliance rate of NI Water. Essentially, there are two systems: waste water treatment works and sewage collection systems. The waste water treatment works are under a programme of announced sampling whereby the NIEA agrees a programme of fixed sampling for the year ahead. What we mean by "announced" is that there are fixed dates, so the plan is known to the operator. NI Water has a subcontractor come in and take those samples at fixed points throughout the year and report the compliance to us. The thing with announced sampling is that those dates are given ahead of the offence, so there is, perhaps, an opportunity to get your house in order before the sample is taken.

I have some compliance figures based on the results that have come through for 2023, if they might help the Committee to understand. For the smaller waste treatment works that cater for populations of under 250, NI Water's compliance in 2023 was around 95%. I am rounding the figures off; they are not exact. For the larger waste water treatment works that cater for populations of over 250, the figure for compliance with its discharge consents is around 94% Finally, for the urban waste water treatment works that come under the Urban Waste Water Treatment Regulations (Northern Ireland) 2007 — the very large waste water treatment plants — compliance sits at around 96% through the announced sampling programme.

The Chairperson (Mrs Erskine): You said that the dates are fixed and that that allows people to get their house in order. Those compliance statistics are high, but, in that intervening period, people have been allowed to get their house in order. Is it not time that we started to do random sampling on unknown dates?

Mr Cherry: Yes, you are right. Under the water reform programme, we are taking forward unannounced sampling. We are engaging with NI Water on how and when to introduce that and on what our policies and procedures will be for the unannounced sampling that will, as you said, take away that opportunity for NI Water to get its house in order. It will give a better reflection, in real time, of how compliant sites are.

The Chairperson (Mrs Erskine): OK. Under the Water (Northern Ireland) Order 1999, what is considered as having "significant" environmental impact, and what constitutes a "medium" or "high severity" incident? How are those determined, and how is a "material failure" determined?

Mr Cherry: I do not have the specific definitions with me, other than that they are classified as "low", "medium" and "high" severity. I do not have the breakdown. However, "low severity" means incidents that are short in duration and have a superficial or low impact on the quality of the water and, more important, the ecology of the water — the life in the system itself. The incidents that go to "high" or "medium" have a bigger impact, and you will see impacts on the quality and the ecology in the water. I can provide a better brief on that, if you want me to, in due course.

The Chairperson (Mrs Erskine): Have you figures at the moment for the percentages of incidents that are categorised as "low", "medium" or "high"?

Mr Cherry: Yes. I have some figures here for the Committee. They are for the period 2020-2024. There were 49 reports of pollution categorised as "high" or "medium": one "high" and 48 "medium". How those were dealt with by the agency over that same period is that 16 warning letters were issued to NI Water, and 10 of those incidents were covered under article 7(1)(b) of the Water Order. That is where the issue with the blockage or spill is because of, maybe, an intervention by the public, such as throwing nappies or disposable stuff into the system, which is not the fault of NI Water. Seven enforcements are ongoing. Five of those cases went to the Public Prosecution Service (PPS) for prosecution, and there are a few other smaller ones where no further action was taken, maybe because there was an emergency situation or it was covered under the SORPI agreement.

The Chairperson (Mrs Erskine): You mentioned enforcement action and some figures, such as the number of cases going to the PPS. How many incidents have led to prosecution proceedings since 2007?

Mr Cherry: I do not have the figures for proceedings since 2007. I have only the total value of fines applied against NI Water since 2007, which is around £266,000.

For the period 2020-24, five of the instances that I covered went to prosecution. The fines ranged from £2,000 up to £5,000, with a total of £13,500 for those five prosecution cases.

Mr Reid: Can I check whether it was five or six?

Mr Cherry: It was five.

Mr Reid: I just wanted to double-check.

The Chairperson (Mrs Erskine): I want to move on to the SORPI arrangements and explore the particular issues with the SORPI and why the NIEA wishes to withdraw from it.

Mr Reid: In 2007, when the SORPI was established, it took account of the need for new investment in NI Water's waste water infrastructure. At the time, it provided clarity on our compliance and enforcement approach while making sure that the necessary infrastructure improvements were made, but that was 18 years ago. It is an administrative arrangement in which there was never an obligation to continue with it indefinitely. Withdrawal from the SORPI is provided for in the document.

It is really important to note that the regulatory landscape has changed significantly over the past 18 years. In particular, our understanding of pollution pressures and the pressure that our natural environment and our water quality are under has changed considerably as well, so we have a better understanding of it now than we had 18 years ago. That has never been more starkly evident than in what we have seen in Lough Neagh and other water bodies across Northern Ireland.

Our Minister has made it clear that he does not believe that the SORPI is fit for purpose in the context of the environmental challenges that we now face and is minded to withdraw from it so that NI Water can be put on a par with all other polluters in Northern Ireland. That is really important, particularly as it would mean that everyone was being treated fairly.

The AERA Minister has agreed to an eight-week consultation period for engagement with the Department for Infrastructure and NI Water prior to making any final decisions. At this stage, it is important to note that there is no predetermined outcome or final decision and that there will be extensive engagement with NI Water and DFI before final decisions are taken by the Minister on what happens with the SORPI.

The Chairperson (Mrs Erskine): Do you think that withdrawal will be met with any resistance from the Department for Infrastructure or NI Water?

Mr Reid: I am not really in a position to say until we fully engage with NI Water and the Department for Infrastructure on the withdrawal from the SORPI. I am aware that NI Water has indicated that it would like a transition arrangement for withdrawal from the SORPI to be considered, so we need to engage with NI Water in order to understand what that would look like. The consultation period will allow us to do that.

The Chairperson (Mrs Erskine): You are talking about engagement and the transition period. Are you looking at any particular timeline for the transition period or withdrawal?

Mr Reid: We can confirm nothing at this stage. We have to go through the consultation period with NI Water, but we will work closely with the Department for Infrastructure and NI Water to provide options for the Minister to consider before he makes a final decision. There should be greater clarity on that when we have had the opportunity to engage.

The Chairperson (Mrs Erskine): Do you set the policy for NI Water's decision-making around blanket bans in areas of constraint, or is it solely down to NI Water to make those decisions?

Mr Reid: I will give you my understanding of it, and then I might bring Richard in for clarity. From the point of view of the Northern Ireland Environment Agency, my understanding is that we do not have a policy remit. Our policy is determined largely by the Department, and we will operate in that context. Blanket bans and suchlike are not something that we do. Richard, is there anything that you would like to add to that?

Dr Richard Crowe (Northern Ireland Environment Agency): I agree with that. As the regulator, our role is to advise on environmental impact, and it is for others to make decisions on what can be discharged in certain areas.

The Chairperson (Mrs Erskine): I will touch on that by extrapolating from that answer. In Committee, we have heard about an enforced five-year rule whereby, if you have a house or building that has been derelict for five years, you are not allowed to get it switched back on to the system. From what you say, NIEA will have had no say in that and it is solely an NI Water policy decision.

Mr Reid: It is not one for us. As Richard said, our role as a statutory consultee will always be purely advisory. We are not in a position to dictate things in a situation such as that or set policy.

The Chairperson (Mrs Erskine): Thank you. I will move on to the Deputy Chair.

Mr Stewart: Thank you, gentlemen, for coming along today. I want to follow up on the Chair's comments on the SORPI arrangements.

Mr Reid, you said that a process is under way. I look forward to the outcome of that. If SORPI were to be replaced, what would a replacement regulatory system look like? Where has the model of best practice? You indicated that the regulatory and compliance measures that are in place at the minute are not fit for purpose. Where does it well, and what would be a better process than what we have now?

Mr Reid: At this stage, we have not presented options to the Minister on what might replace SORPI. We are not able to do that until we fully engage with NI Water.

Mr Stewart: OK, but you know that it is not working.

Mr Reid: On what would replace SORPI, our starting point is to ensure that something is in place that is fair and consistent for every body that we regulate. At the minute, in the Department, we have the 'Department of Agriculture, Environment and Rural Affairs (DAERA) Enforcement Policy'. Our starting point will be to consider the application of that. Obviously, we need to do that in a way that engages NI Water and DFI to ensure that what we put in place will work and will deliver better benefits.

Mr Stewart: OK. That is fair. If your assessment is that the SORPI is not fit for purpose, do you have concerns that, in the meantime, there are serious problems or that serious problems could arise?

Mr Reid: It is fair to say that, at this stage, the indicators show that serious problems with the state of our natural environment and water quality already exist across the board. I do not know whether Richard might want to comment specifically on some of our water quality indicators. I mentioned the visible impact of blue-green algae that we have seen across our lakes and fresh waterbodies. Look at the status of our waterbodies. We were supposed to reach "good" status by 2027, but the fact that we are so far off that indicates that something needs to change.

Richard, do you want to add anything about our water quality statistics?

Dr Crowe: All of our indicators point to what is, effectively, a stagnation of water quality. We see no real improvements. We see improvements in some places and declines in others. Effectively, we are coming towards a balance in some respects, which is not where we want to be. We want to see improvements in water quality, and, as David mentioned, to move towards hitting that target of good status across 100% of our waterbodies.

We know that there are specific issues to do with water quality that are high-profile — you have mentioned them already — such as those that relate to Lough Neagh. We know from other information that, for example, Belfast lough is subject to that environmental impact as well. It all points in the direction of us, as a regulator, needing to identify a means to regulate effectively in that area, and that is why the SORPI is on the table. There will be engagement with DFI and NI Water to find an effective way to protect and regulate our environment and assure the Committee and the wider public that our water quality is not in decline but progressing towards "good" status.

Mr Stewart: That is useful. We are all well aware of the problems, particularly those in our waste water system and our water. However, NIEA has enforcement powers. You can send enforcement letters, and you bring public prosecutions against NI Water. Are the current powers not enough? I am not speaking in favour of doing either of those things, but are you using the powers that you, as a regulator, have at your disposal to take action against Northern Ireland Water where those problems exist? You have just said that the SORPI is not fit for purpose, but you have significant powers, including prosecution, should you wish to use them.

Mr Reid: I will kick off the answer to that, and then I might bring in Richard and Mark, because it also touches on some of the things that Mark talked about. In a way, the SORPI arrangements that are in place at the moment inhibit our use of those enforcement powers. Is it going too far to say that, Richard?

Dr Crowe: No. SORPI is an arrangement that recognises the challenges that NI Water has worked with over the past 18 years. However, as David has indicated, we are in a different regulatory and environmental position than we were 18 years ago, therefore, it is wholly right for us to consider how best to take forward effective regulation.

I assure the Committee that we enforce the DAERA enforcement policy on pollution incidents and impacts. Chair, you mentioned high-, medium- and low-severity incidents, and there is a requirement for us to categorise such incidents. In each high- and medium-severity incident, we seek to gather evidence to identify the source, and, if it is appropriate and there is appropriate evidence, we take it to the PPS for prosecution. As for everyone else, the strength of evidence that comes forward means that our work is evidence-based. We have a duty, therefore, to present only the evidence that, we believe, can move forward in a prosecution case. However, I can certainly assure the Committee that we are fully engaged in taking forward all actions that we can within the statutory function that we have.

Mr Stewart: What is NIEA's assessment of the impact of the waste water that is being poured into Belfast lough? What monitoring is going on there, and how concerned are you about the long-term impacts on Belfast lough, given the capacity issues that surround it?

Mr Reid: Do we have any specific figures on monitoring, or might we need to come back on that?

Dr Crowe: We will probably come back on that.

Mr Stewart: OK, but, generically, how concerned are you? In the absence of the figures, you must be aware of the capacity issues and the problems in and around greater Belfast. Is it concerning in the long term?

Mr Reid: We have concerns about the water quality in Belfast lough, and those concerns are echoed for all fresh waterbodies across Northern Ireland, given what we see with pollution. Richard mentioned stagnation. There are areas where, I believe, pollution levels are increasing — Belfast lough might be one of those areas — but we need to come back and confirm exact monitoring figures.

Mr Stewart: Perhaps when you come back on that you can say whether enough is being done with the current resources, infrastructure and technology to deal with the problem. It would be useful to know that.

Mr Reid: In terms of?

Mr Stewart: The waste water that is being pumped into Belfast lough generally.

Mr Reid: I just need to be careful where our remit as the environmental regulator and our role and responsibility are concerned. We need to be careful that we do not provide commentary on the financial settlements in other [Inaudible.]

Mr Stewart: You can provide an assessment, though, can you not?

Mr Reid: We can provide an assessment of the water quality, but we need to be careful about going beyond that. We are not in a position to comment on how NI Water or DFI take forward programmes to enhance infrastructure and stuff like that. That would not be for us.

Mr Stewart: I will make one more point, if I may, because it comes back to the Chair's point. Will you just talk me through the collaborative approach with NI Water versus the regulatory approach? I want to give you an example. When the Committee met Northern Ireland Water two meetings ago, I raised a case in my constituency where a special educational needs school wanted to expand and put in a number of mobiles. That would not have increased the capacity in the town per se, because the children were already in the town; they just did not have a school place. There was a blanket ban in the area, and, when I asked for special circumstances to be raised with NI Water to make a sensible case for it, it said that that was an issue that would need to be consulted on with NIEA. From what I have heard from you, Mr Reid, that is not the case, because you do not set policy and do not comment on individual cases. Was there a misunderstanding of the process, and could NI Water have approved that, given the blanket ban? Where do you sit on that?

Mr Reid: We would be consulted and would provide advice as a statutory consultee. It is difficult, without knowing or understanding the specific details of the case, but —.

Mr Stewart: For clarity, in an area such as Larne, where there is a blanket ban that means that no development at all is allowed, would NIEA automatically respond by saying, "No, there is a blanket ban; I do not care what it is"? Alternatively, would you look at that in the round on a case-by-case basis where a strong argument could be made?

Mr Cherry: The agency would certainly consider on a case-by-case basis solutions that have been proposed for a site. Our primary position, however, is to ask whether the development protects the environment and whether environmental standards are met for what it discharges. The capacity issues are a matter for NI Water, but we are happy to engage with NI Water about particular sites. We have a working group on our private sewage level through which we can work with NI Water on such issues, but our input would be solely to ensure that, whatever system is put in place, the ultimate aim is to protect the environment and ensure that the development meets particular discharge standards. We engage with NI Water on such cases.

Mr Stewart: OK. I could go on, but I am conscious of time. Thank you very much.

The Chairperson (Mrs Erskine): I will pick up on that point before bringing in Keith. Blanket bans come up a lot for all of us sitting around the table in similar scenarios. Do such situations come to NIEA as a statutory consultee? Do you even have a chance to comment on them?

Mr Cherry: I am not aware of our having a chance to comment on the particular blanket bans that you refer to, but I would need to check that.

Mr K Buchanan: Thanks for coming along, gentlemen. I will start by noting the figures for Lough Neagh. I may be wrong with a few of the percentages here, but, if you recall, figures of 62% for agriculture, 24% for NI Water and 12% for septic tanks were talked about. While I appreciate that some of those figures relate to agriculture and NI Water, I will talk first about septic tanks. Is your organisation directly responsible for the control of septic tanks?

Mr Cherry: We give permits for septic tanks. We are responsible for regulation and for making sure that the septic tanks comply with the —.

Mr K Buchanan: Nobody else is in control of those septic tanks, which are at — I will disagree with this figure in a minute — 12%. What are you doing about that 12%, over which you have control?

Mr Cherry: Under the Lough Neagh action plan, we are trying to bring in additional staff to map out the septic tank holders around Lough Neagh and to introduce a programme of inspections for them. That work is ongoing as part of addressing the Lough Neagh problem.

Mr K Buchanan: When do you see that 12%, which is an issue, going to zero?

Mr Cherry: I cannot say when that will happen. All those septic tanks — I am not sure of the numbers — would have to be inspected, but there is quite a —.

Mr K Buchanan: I am not sure how to put this, but how accurate are those figures of 62%, 24% and 12%?

Dr Crowe: I will pick up on that. That comes from some modelling work that AFBI carried out. It relates specifically —

Mr K Buchanan: Is it only modelled work?

Dr Crowe: — to phosphorus.

Mr K Buchanan: It is only modelled?

Dr Crowe: It is modelled work, yes.

Mr K Buchanan: OK.

Dr Crowe: That has been clear in the work that has gone on through the Lough Neagh report. There is ongoing work in that area to identify where those figures could be further refined. It is important to be clear that, as that figure relates to phosphorous, septic tanks and domestic waste water tend to be in place to reduce the bacterial loading of the material that goes in. We are embarking on work that will look specifically at the use of treatment systems for septic tanks in order to ensure that they can be effective in reducing bacterial loading — biochemical oxygen demand (BOD) — and reducing nutrient loading. Under the Lough Neagh report, the Minister has approved work that has been funded through that report to consider the role of septic tanks. For example, our Chief Scientific Adviser (CSA) in DAERA is engaged in work with some other agencies across the UK to look into the background of that.

Mr K Buchanan: I will go back to the 24% figure for NI Water. Those figures are from May or June 2024. There are 2,444 operational storm overflows in the entirety of Northern Ireland, 724 of which go directly or indirectly into Lough Neagh. That is, effectively, 30% of all storm overflows. Bearing in mind that, at that point in time — this may have changed slightly — there was no method of measuring that, how do we know that that 24% figure is right, given that 30% of all storm overflows go into Lough Neagh? How do we know that NI Water contributes only 24% to the issue in Lough Neagh?

Dr Crowe: I will take that, if that is OK. I referred at the beginning to that work having been modelled through AFBI peer-reviewed scientific work. I cannot really answer the question about the way in which it was peer-reviewed and scientifically verified, but it is work that we have clearly relied on to give a gauge for what the different sources of that phosphorus pollution are. The veracity of that information would be looked at from a scientific and peer-reviewed point of view. However, I am aware from that work that, for example, population data, rainfall data etc were used to give a modelling view of the amount of nutrient and so forth that was going through different plants and septic tanks. Again, I refer back to the scientific rigour on that question.

Mr K Buchanan: OK. Thank you. I will move on to a question about the different groups that NIEA and NI Water sit on; those are outlined in annex 1. There is the output review group (ORG), the ORG regulation group, the waste water compliance group and all those different groups. Does industry sit in the middle anywhere? When I say "industry", I mean developers and factories. You have NIEA and NI Water sitting on a group, but development has stopped and business has practically stopped. They have solutions, but are you, meaning you and NI Water, talking to those people about possible solutions? Are they part of any of those groups? What are the outcomes from those groups?

Mr Reid: I will kick off and then bring Mark in to give more specific details on the groups. Those are long-established governance structures that basically bring together the key public-sector stakeholders, and they provide for discussion and cooperation on strategic and regulatory operational matters in addition to aligning our respective water/waste water regulatory reform programmes. A key thing to note about those groups is the fact that they are consultative between us but are not really put together in a way that would undermine in any shape or form our respective statutory obligations. Not all the groups that I am on or am aware of include industry.

Mr Cherry: No, they do not. Those groups that were listed in that brief essentially stem from the water stakeholder partnership agreement that was set in place between DFI and NI Water and the other —.

Mr Reid: It was the Department for Regional Development (DRD) at that time.

Mr Cherry: Sorry, it was DRD at the time, yes. The Utility Regulator, the Consumer Council and NI Water all sit on that, and a number of groups are there. If you want, I can go through some their outputs, but, certainly, the water strategic steering group is at a very high level and brings together the most senior representatives from all those organisations. That is more about focusing on the price control (PC) period, strategic priorities and policy development. That is at a very high level.

Below that, there is an output review group that DFI sits on along with NI Water, the Consumer Council, the Utility Regulator, NIEA and the drinking water inspectorate. We look at how we deliver on the PC20 price control programme. Generally, it has a high oversight and is about making sure that all those stakeholders are connected and communicate and engage with one another so that we all understand everyone's roles and responsibilities in trying to take the programme forward.

Once you drop out of those two forums, it falls to the working subgroups at operational level, which are about taking forward policies and procedures on compliance and water reforms and things like that. The developers are not involved in any of those groups, if that answers the question.

Mr K Buchanan: If you are not talking to developers or industry, how do you know what the problems are? All that I hear every day is — I do not mean this disrespectfully, given that NI Water is not in the room — that those people are like a ball in the middle of a game of tennis. When the ball goes over the net to one side, it maybe stays for three weeks or four months and then comes back over, and that goes on and on. Somebody would be better saying, "No, it cannot happen because of x", but, if you guys are not sitting down with industry, how will you ever come up with solutions? Developers and industry need to be in the room.

It is fine to have all those stakeholders having the conversations, but industry has stopped out there. What will you do to communicate with NI Water and have the people who are affected in the room to come up with solutions? Guys, it is a game of tennis. I need to make that clear. All the elected representatives around the room hear that it is a game of tennis between NIEA and NI Water. That is all it is — a game of tennis, and everybody is in the middle. When will you come together and talk to industry to try to help those people help you and vice versa?

Mr Reid: It is important to note that, with housing now being a key priority in the Programme for Government, DFI and DFC have approached us about setting up a working group to explore the art of the possible and what we might be able to take forward. We are happy to engage in that group. There has been one meeting of that group so far to try to scope out strategically what that work might look like. We are due to have another meeting of that group on Monday. I understand from DFI colleagues that NI Water and the Housing Executive will present information at Monday's meeting.

Mr K Buchanan: Sorry to cut across you, but who all will be on that group?

Mr Reid: At this stage, it is just public-sector bodies, but I will ask the rest of the group about engagement with wider industry, and we will see whether anything can be taken forward on that. It is a good point. I will take it forward with those people.

Mr K Buchanan: This is my final question. For anybody who is watching, can you say what solutions you are working on with NI Water to help industry and housebuilding? NIEA will say, "There's no consent to discharge in this area". What have you looked at to allow you to put in localised treatment plants? We will have that conversation with NI Water. What about large soakaways? I am using my language, but you know what I am referring to. Have you looked at anything outside the box?

Mr Reid: I will bring you in first, Richard, and then you, Mark, can talk about some of the more detailed work that you have been involved in.

Dr Crowe: Yes, we have. Mark referred to some of the different groups that we sit on. We engage positively on, for example, environmental modelling to identify from our role where the impacts are greatest on the receiving environment and, therefore, the best place to try to intervene to reduce the impacts. From an NIEA perspective, we are very open, as David indicated, to working with all groups to find solutions. Our role is to highlight and advise on the potential or real impact on the environment and the receiving environment. We are very much up for working together to find solutions, if there are solutions.

Mr K Buchanan: It would be good if you could provide the Committee with your plan to reach out to industry. There is no doubt that industry has answers and can be part of the solution. If you talk just in silos, you will get no buy-in. I would appreciate that; thanks.

The Chairperson (Mrs Erskine): I noted that, so it would be good to get some information on that DFI/DFC steering group. That is really important. We as a Committee see individual waste water treatment plants that are assigned to housing developments, which can create further problems with water quality.

Mr Boylan: Do we have half an hour, Chair? This is a big subject for us.

You are welcome. Thank you for your answers so far. I sat on the 2007 Committee and was part of the development of the Go-co and the handover, so I am familiar with it. I am very disappointed by what I have heard. I read through your notes on the issue; you have so many notes. Will you explain exactly and definitively to the Committee what your role is under the SORPI? It is a partnership involving NIW, and the old Environment Committee was involved. There was a move from the old regulation into the Go-co. What is your specific role?

Mr Reid: I will kick off, but I might bring you in, Mark, for a bit more detail. When a pollution incident arises, we will refer to the SORPI to determine whether it has arisen as a result of a management failure or —.

Mr Boylan: One hundred per cent. I will stop you there.

I am trying to get at the fact that we have been at this for 18 years. You said that — you were maybe not involved in this, but it was part of the original handover — the infrastructure had a very poor rating when it was taken over. My point is that we have had 18 years and so many PC programmes, with God knows how many billions of pounds. I appreciate the issue about the new environmental regulations, but there were certainly laws and regulations in place then that should have been adhered to. My point is this: who was watching what?

Chair, I need to take a wee minute to explain this, so besides the point about development now and all the issues that members raised, where were the environmental checklists over that time? That is very concerning. That is my point and what my real question is about. I appreciate your role. I asked you that only because we have had 18 years of this situation, and it has got worse. Lough Neagh is in a terrible state. Belfast lough is in a terrible state, and I say that even before I get on to underdevelopment and growing the economy, which I will come on to in a minute, if the Chair will allow me. We seem to have got ourselves into a much worse position than we were when we started. I appreciate that our starting point, according to everybody, was low, because we have looked at water conditions and all that. We have reached targets for a number of years, but the waste water treatment targets were not reached, so can any of you give me an explanation for how we got to this point?

Mr Cherry: That is a good question. I do not know whether you want me to come in on that. I have been in my current role for two years now, and I have tried to catch up on the SORPI agreement, which, as you say, was made back in 2007. The SORPI agreement was put in place to recognise the underfunding and the investment. As you know, I do not want to rehearse that , but it is about how you take that forward and recognise what enforcement you want to take against NI Water. There was that piece where assets that had been properly funded but failed through management failure would be taken through for prosecution. Other assets suffered from underfunding and are failing because they have not been invested in. Very generally speaking, I understand that the SORPI was meant to cover situations where, rather than take prosecutions against NI Water right away, provided that there was a plan in place, which is the price control plans, those assets that had not been funded and those failing works would be built into that plan through the capital works programme, NIEA would take account of that. That is because you know that it will be fixed: the plan is there; the funding is there; and it will be delivered. My view is that that has not happened. Those price control plans have not happened to the full extent over the years. A prime example is the current PC21 programme, where a significant programme of works was built in, but we now understand that that has had to be cut back drastically due to underfunding.

Mr Boylan: Are you saying that it has always been about underfunding? The Utility Regular has signed off on all those PCs. It was forensically tested, so where does the responsibility lie? I appreciate that it has been underfunded in certain cases.

Mr Reid: We need to be really careful —.

Mr Boylan: One hundred percent. You understand the conversation, because you are in front of the Committee, and we are trying to get a better understanding. All we are hearing is "underfunding, underfunding, underfunding", but there are major environmental issues out there that you are responsible for. In the old days, you were part of the same Department, which was the Department of the Environment. I respect that, but I am trying to tease this out, because you are here today and we have an opportunity to talk to you. I cannot understand how we got to this stage. You understand where I am coming from in my line of questioning, though you may not be able to answer it, but I am concerned.

If you move away from SORPI, are you guaranteeing more fines and more actions, or, at least, if you do not move away from it, what actions will you take to ensure that we can make progress by the end of the mandate?

Mr Reid: The first thing that you need to see about that, Cathal, is that, at this stage, the Minister has indicated that he is minded to withdraw from the SORPI and has agreed, as I said, to the eight-week consultation period. I assume that, through that consultation period, we will have a better understanding of what the impact of withdrawal will actually be. That is because we need to understand what the process will be and to be in a position to understand what options we will be able to consider when moving from one arrangement to another. At this stage, we are not in a position to comment, but we would be happy to provide an update when we have —.

Mr Boylan: Is the direction of travel as of today and for now to move away?

Mr Reid: Moving away from the SORPI is basically under consideration. A final decision will be taken on that following the consultation period.

Mr Boylan: OK. I have taken up most of the time. I have just one quick question. Does your conversation with DFC and DFI about the communications on the previous speaker's point, which was on development in general, filter back through the working group? DFC is crying out for social housing and everything else.

Are all the conversations taking place in the working group? How are the conversations between DFI and DFC filtered back?

Mr Reid: The working group has just been set up. Its second meeting is on Monday. At this stage, I therefore do not really have an awful lot of detail about what will happen next. The group's remit probably needs to be refined a bit, and we should know the position with that better after Monday. I can raise Keith's points about wider engagement with DFI and DFC.

Mr Boylan: I appreciate that you cannot talk about the funding issue, but we have had a number of PC programmes, in which a lot of money has been invested. People had responsibility for them, but I am very concerned that we have not made progress.

Mr McReynolds: Mark, you talked at the start about unannounced sampling. It is important to have that, and you said that it is being looked at. Is there a timescale for introducing unannounced sampling?

Mr Cherry: I do not have a definitive timescale for you today. We are working with Northern Ireland Water, and have been for a year or so, to try to introduce it as quickly as possible. It is not just a matter of flicking a switch and starting unannounced sampling. A lot of logistics are involved, but we are working as quickly as possible.

Mr McReynolds: OK. The SORPI has been done to death, but who signed off on it back in 2007 and who decided not to change it, even though it was introduced as a temporary measure?

Mr Reid: I could be wrong, but I think that the chief executive of the Environment and Heritage Service (EHS) signed off on it. The EHS was the NIEA's predecessor. The chief executive of NI Water then signed off on it. We can double-check and confirm that for you.

Mr McReynolds: Would that have been done in consultation with politicians, or is it an operational decision?

Mr Reid: It would have been an operational decision at the time. It was 18 years ago, however, and I did not have oversight of what happened back then. We can make some enquiries to see what we can find out.

Dr Crowe: With the process that we are now going through, it is important that there be transparency and that consultation take place with DFI and NI Water on the SORPI. It will certainly be open to scrutiny. To reiterate, we need to find a way in which to update our regulatory approach and, in doing so, find a way in which to encourage and enforce the improvements in water quality that we all wish to see.

Mr McReynolds: When we have such conversations, I sometimes fear that they can be about development restrictions versus water quality, public health and all the other things that we all care about. Does the NIEA play any role in how Northern Ireland Water treats and manages water in any way?

Mr Reid: Operational delivery is entirely a matter for Northern Ireland Water. How it runs its operations, manages its budgets and deploys its resources is all for it to determine. Our role as the environmental regulator is primarily about the environmental impact of those activities, how they are consented and how they are regulated thereafter. We would not want to be in a position in which we effectively tell NI Water how to do its business.

Mr McReynolds: Thank you.

Mr McMurray: Thank you, gentlemen, for coming in today. My colleague put the scud on me, because I was going to ask about the SORPI. Your evidence so far is telling. You have a desire to move away from the SORPI, as it does not appear to be working. As an environmental regulatory body, what do you think needs to be included, and what should be included, in the SORPI? How do we give it teeth to assist you in preventing the environmental issues that are arising?

I can only assume that it is inherently frustrating and presumably upsetting for your officers and workers on the ground to see high- and medium-severity incidents occur. I would not mind going to back to the SORPI to see what needs to be done with it in order for it to be effective.

Mr Reid: I will kick off. One of the key drivers will be the fact that there is a desire to ensure that we treat everyone who has an impact on our water environment in a fair and consistent manner by applying the same policies to all.

The state of water quality is evidenced by the fact that what we currently have is not working. There is a need for us to take a more robust approach to how we tackle water pollution and improve water quality. Richard or Mark, is there anything that you wish to add?

Dr Crowe: As you say, David, we cannot pre-empt the shape of that, because we want to have meaningful engagement with our DFI and Northern Ireland Water colleagues. We want to have that meaningful engagement to ensure that we have an effective, updated and improved regulatory regime in place that will aim to address the concerns that are being expressed here this morning about water quality needs. The NIEA wants to be part of the solution, and part of the solution is to have an effective regulatory system that provides a fair and level playing field across the board for all those who have an impact on water quality. That is very important. The previous Minister was clear and high profile in setting out his view that we need to adopt a regulatory position that gives us the opportunity to move forward and see improvements in water quality.

Mr McMurray: Thank you. I will go back to unannounced sampling. I cannot remember in which evidence session I heard it, but it seems that there is a combination of in-house testing and external agency testing being done. Is that a good set-up? Does it need more teeth? What are your thoughts on removing sampling from being in-house to using external providers only? You said yourself that announced sampling allows people to get their house in order. Is enough unannounced testing being done, or would you like to see more of it to try to tackle the state of the water that is going into the water?

Mr Cherry: The unannounced approach is one element of our trying to get a better picture of true compliance with how the systems work. Another element that I mentioned — we are working with NI Water on this front at its waste water treatment works — is flow compliance, We try to understand the flow in and out of waste water treatment works and how it is being managed. We have been working very closely with NI Water on introducing a flow policy and on how we can get equipment to the sites to measure the volumes of waste that is coming through the plants, because that will give us and NI Water a better picture of how the plants are performing. It will also give us a better picture of what may be happening further back in the network with combined sewer overflows (CSOs) and emergency overflows. That work is being done hand in hand with unannounced sampling. We do that to be more informed about the true level of compliance of the assets that we are using.

Dr Crowe: I will add to that by going back to a response that I gave previously. It is done to give that assurance, as Mark described correctly, that there is ongoing monitoring of compliance. We also have teams of people who respond to pollution incidents. If anyone has a concern about pollution occurring, we encourage them to report that concern to the pollution hotline, which is available 24/7. We will also respond to and fully investigate any reports of alleged pollution to find evidence and identify the source, and, if we do, we will not hesitate to initiate our enforcement policy. That consists of issuing a warning letter, which may be followed by prosecution, depending on where the pollution incident leads us.

Mr McMurray: I have one more question, Chair. I have raised the issue of dry spilling in questions for written answer to the Minister. The monitoring stations are further upstream rather than downstream. Is NI Water doing enough to collect data from the monitoring stations upstream rather than from just those downstream?

Mr Cherry: We work closely with NI Water on that front, because the systems network and the outflows are the areas about which we have the least information. NI Water has been working with us on its proposal to install event duration monitors (EDMs), which is equipment to monitor how often the CSOs spill and for how long. Many hundreds of EDMs were installed during the first phase of PC21. They give better figures on spills, as they provide as much real-time information as is possible on what is happening in the network. Once the data is collated and understood, it gives a better picture of where the problems are and the approaches that need to be taken. Again, however, that is for NI Water to do.

Mr Durkan: Thanks to the team for coming in. Quite a bit has been covered. You probably should not announce when the unannounced inspections are going to start.

It was like bingo when you were answering, as I was ticking off my questions. The NI Audit Office report, however, identified the major problem of flow compliance, where raw sewage is being discharged into water bodies. Will you explain exactly what flow compliance is? Why is it such an important issue? Is the information that the NIEA holds on flow compliance accessible?

Mr Cherry: I can cover flow compliance. It is about understanding the flow of sewage in and out of the treatment plant. Plants are set at a certain capacity, and it is about understanding how that works. Hypothetically speaking, if a plant's capacity is one, but it is operating at 1·2, it will be known that there is a problem somewhere the system, as too much sewage is coming into the plant. Flow compliance equipment had to be fitted. The data is collected and reported to the agency, which will give us a better understanding of how the asset is performing.

Mr Durkan: Is the equipment electronic data monitors?

Mr Cherry: Yes. There are different types of flow monitors. I do not know the spec, but there are many different types. It is a piece of electronic equipment that monitors the flow. NI Water will be able to give you a better steer on the technical equipment that is available for that function.

Mr Durkan: Can you insist that flow monitors be put into treatment plants?

Mr Cherry: Monitoring the flow is already part of NI Water's consent conditions, and we are working with it to ensure that the consent condition is being complied with.

Mr Durkan: It should be or must be complied with?

Mr Cherry: It must be, Mark, if it is a consent condition. A consent condition is a must.

Mr Durkan: Peter asked about the SORPI and its origins, how it was signed off and how it has been allowed to go on for this long. From my time in the then Department of the Environment, I recall being questioned and then asking questions about how the SORPI could be removed and how to transition from arrangements that were never meant to be permanent. Executive sign-off was required at the time owing to the SORPI's cross-cutting nature, and there was no appetite for going there, particularly from the then Department for Regional Development, which had responsibility for Northern Ireland Water.

You are caught in the middle with the SORPI, but you can understand how it could be construed that you are letting NI Water get away with it.

Dr Crowe: I will respond to that. Mark covered that issue earlier. There have been successive PC periods in which plans have been put in place to develop the work on waste water. I cannot recount history from my perspective, but, at each stage, a plan was put in place to see the improvement that was happening. We are now in our current PC period, but the environmental and regulatory positions have become much clearer, and the previous Minister indicated clearly that he wished to see a change, to put it mildly, be made to the SORPI arrangement. We are concentrating on how that transition can be done now only in a way that works for the environment, principally because of our role, but in a way that can work for NI Water and DFI. A practical way forward is needed in order to deal with the issue. To state the obvious, years have passed. Undertakings have been given during the period, but we are now in a different position, so we are taking action to move in a different direction from the SORPI.

Mr Durkan: Finally, will you be adequately resourced to do so? If the SORPI were to be done away with next week, would that place a bigger resource demand on the NIEA?

Mr Reid: At this stage, it is difficult to say whether there would be a bigger resource demand on the NIEA. To be fair, we are pretty stretched for resources at the minute, Mark, but the starting point is to understand that we respond to every pollution incident and take action based on the kind of information that we have available, on whether we are applying the DAERA enforcement policy and on our understanding of the implications of the SORPI. I do not foresee the number of pollution incidents changing, so they will still be investigated. Richard, do you want to add anything?

Dr Crowe: In all our regulatory approaches — we regulate across industries and sectors — we always highlight the fact that it will be for an industry or a business to demonstrate to us its compliance. The onus will continue to be on the business that is making the impact to demonstrate that it is in compliance. In our consideration of the SORPI, we will work with NI Water and DFI to determine how that compliance will be demonstrated.

Mr Durkan: Thanks, men.

The Chairperson (Mrs Erskine): No one else has indicated. Sorry, Nicola has.

Miss Brogan: Thanks, Chair. Sorry, but I have no hand-raising function on Zoom. After all these years, I still cannot use it properly.

Thank you, folks, for your update. I have a couple of quick questions. The situation with our waste water infrastructure means that there is huge pressure on housebuilding. Lots of private developers are coming up with their own waste water solutions and incorporating them into their developments. What role does the Environment Agency play in inspecting private developers' waste water infrastructure? Do you inspect it?

Mr Reid: I will bring in Mark to explain our involvement in, first, the consent process.

Mr Cherry: If any private water or sewage network is consented by the NIEA, we have to make sure that the asset complies with the parameters of its discharge consent. We go out and inspect private sewage plants, or take water samples from them, to make sure that they are complying.

Miss Brogan: Have you had any engagement with DFC or DFI about trying to develop that function further so that private developers can have a way of improving their waste water infrastructure and thus get more houses built? Do you foresee a role for the NIEA there?

Mr Cherry: Our advice and guidance on applying for such consents for private sewage networks is on the DAERA website. If a developer wants to apply for consent for a private sewage plant, we first ask whether it has gone to NI Water to seek its adoption. That is the most sustainable way forward. If the developer has done so, NI Water will usually produce a pre-development inquiry form that indicates to the developer whether it can connect to the network. NI Water and the developer will also do a waste water impact assessment. It could be the case that the developer cannot get a direct connection to the NI Water network, and it may then have to put in place other solutions, such as a pumping station to pump the sewage into the network. Alternatively, the developer could install a private sewage treatment plant on-site. Having either a pumping station or a private sewage treatment plant will require a discharge consent from us while it is operational. We generally do not consent unless NI Water has an article 161 adoption agreement in place, along with the bond that supports that, so that we have an assurance that the asset will be sustainable in the longer term.

Miss Brogan: Thank you for that. I have one more question. Everyone else has mentioned the SORPI. Is this a good time to step away from the SORPI, given the funding pressures that DFI and, indeed, the whole Executive are under? If the Environment Agency is removed from SORPI, that is likely to result in more fines for NI Water. Those fines would come out of its already tight budget. Would it therefore be counterproductive to do that now?

Mr Reid: The decision to walk away from the SORPI, or removing the Environment Agency from it, is primarily being driven by environmental factors, particularly the consideration of water quality. On any financial impact that doing that could have on NI Water, we are not in a position to say until we have gone through the process of engagement with NI Water and DFI. That will be considered as part of the process. Broader questions on funding for NI Water cannot really drive our decision-making. Our decision-making absolutely has to be driven by the broader environmental considerations.

Miss Brogan: The initial thoughts are that doing that would prove to be more expensive for NI Water and put more pressure on its already stretched budget. Is that fair to say?

Mr Reid: At this stage, Nicola, I really cannot say, because I have no figures on which I could base any comment.

Miss Brogan: That is fair enough, David. Thank you.

The Chairperson (Mrs Erskine): Before we finish, there are a couple of things on which I will follow up. What is the maximum fine that can be enforced?

Mr Reid: Under the Water (Northern Ireland) Order 1999, it is currently £20,000. The figure will always be for the courts to decide.

Mr Cherry: On summary conviction under the Water Order, it is three months' imprisonment and/or a £20,000 fine, and, on conviction on indictment, it is a two-year imprisonment term and a fine, the limit of which is not specified.

The Chairperson (Mrs Erskine): That has been in place since 1999. Do you think that a £20,000 fine is sufficient in this day and age, considering that we are looking at multimillion-pound companies and at NI Water, in which billions of pounds is being invested?

Mr Reid: It is difficult for us to comment on the wider policy or on the approach that the courts take in their decisions on conviction. We prepare the files, which the Public Prosecution Service (PPS) then considers. As a body wholly independent of government, the PPS then takes the case to court. It is then for the courts to decide the level of penalty.

The Chairperson (Mrs Erskine): For clarity, how many times throughout the year do inspections take place?

Mr Cherry: I do not have the exact figures for private sewage plants and waste water treatment works, but I can certainly provide them to the Committee.

The Chairperson (Mrs Erskine): OK. That is perfect. I will go back to dry spilling for a moment. You said that that was the area on which you had the least information, yet we know that it is happening constantly. We should not be in that scenario. Dry spillages from storm overflows should not happen. What challenges do they present for NIEA? Should responsibility for plans to monitor dry spilling fall to NIEA or NI Water?

Mr Cherry: In the first instance, NI Water. It owns and manages the asset. We ask it for data and information from its consent processes on how that asset is performing. NI Water is in a transition period in which it is trying to fit monitors. There is a programme in place to cover that, and NI Water would probably be best placed to speak about it.

Dr Crowe: I have added this comment a few times but will quickly do so again: if anyone has evidence of pollution due to spillages or any other circumstance, they should refer it to the pollution hotline, and we will follow that up. If active pollution is occurring, we wish to be aware of and investigate it, which is slightly different from the ongoing monitoring side of things; it is important to draw that distinction.

The Chairperson (Mrs Erskine): OK. That is a good place to stop. It would be helpful if you could come back to us with the low, medium and high figures and a breakdown of inspections information, including the timing of inspections.

We appreciate your time in coming to the Committee today. As you can see, we are interested in this topic, and this session has given us useful information and, coming out of it, a lot for the Committee to follow up on. Thank you for your time today.