PART II TRANSBOUNDARY WATER GOVERNANCE IN THE EUROPEAN UNION:
Chapter 2 Transboundary water governance in the European Union
II.2.3. The water law and policy of the European Union
II.2.3.3. Overview of contemporary EU water law and policy
The centrepiece of today’s EU water law and policy is Directive 2000/60/EC establishing a framework for Community action in the field of water policy, i.e. the Water Framework Directive. The WFD represents a broad overhaul of the previous water policy and regulatory philosophy: it has either replaced or called for the gradual repeal of 25 years of previous EU water legislation, leaving only a handful of pre-WFD legislation in effect460. As mentioned above, the broad framework of the WFD is complemented by two policy documents: the EU’s 7th Environment Action Programme and the Blueprint461.
The WFD lays down a comprehensive framework for the protection and the improvement of the aquatic environment in the Union. Nonetheless, it does not amount to an exhaustive “water code”. In fact, the regulatory character of the various provisions of the WFD varies greatly.
Some clauses are extremely detailed, while some are programmatic in nature. Moreover, the WFD also points out to other EU legislation in the field of water management and environmental protection.
The WFD has a universal scope covering all inland freshwater (surface and groundwater) bodies within the territory of the EU as well as coastal waters. It also covers wetlands and other terrestrial ecosystems directly dependent on water462. Its regulatory approach is based on the integrated consideration of all impacts on the aquatic environment, extending the focus from purely chemical to biological, ecosystem, economic and morphological aspects. It establishes environmental objectives for surface waters, groundwater and so-called protected areas (areas designated under other EU legislation for their particular sensitivity for water – e.g. nature conservation areas, drinking water resources, etc.)463. These objectives are summarised as
“good water status”, described in the Annexes to the Directive by precise ecological and chemical parameters for surface waters, on the one hand, and chemical and quantitative parameters for groundwater, on the other hand464.
460 BARANYAI (2015) op. cit. p. 90.
461 See section II.2.3.2. above.
462 Article 1, WFD.
463 Article 4, ibid.
464 ”Good status” for surface waters is described as a “slight deviation” from the aquatic biodiversity found or estimated to exist under conditions where there has been only very minor human impact. For groundwater, “good status” means that groundwater quality and quantity does not negatively impact surface water status or the ecology of terrestrial ecosystems which depend on groundwater (Annex V, WFD).
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Importantly, the WFD considers quantitative issues as “ancillary” to water quality, conspicuously leaving surface water quantity to a regulatory grey zone465. Member states are obliged to carry out extensive monitoring of the quality of the aquatic environment along EU-wide coordinated methodologies466.
The planning and implementation framework of the WFD is the river basin. Member states are obliged to identify river basins in their territory and assign them to river basin districts (formal administrative management units comprising one or more basins). If a river basin is shared by more than one member state, it has to be assigned to an international river basin district467.
The environmental objectives of the WFD have to be achieved through a complex planning and regulatory process that, in the case of international river basin districts, requires the active cooperation of member states468. The main administrative tools of member state action are the river basin management plans and the programmes of measures to be drawn up for each river basin district (or the national segment of an international river basin district). The WFD lays down strict deadlines for the preparation of the management plans and for compliance with the environmental objectives. As a general rule, all water bodies in the EU had to reach good status by the end of 2015. If, objectively, that was not possible and was clearly justified under any of the several statutory exemptions specified under the Directive469, good water status will have to be ensured by the end of the following planning cycle of 2021, or ultimately, by the final compliance deadline specified by the WFD, that is 2027. It must be underlined that these deadlines are not merely “management-planning objectives”, but as the European Court of Justice underlined in a landmark judgement in 2015, legally binding obligations for which member states hold full responsibility under EU law470.
The WFD, as its name suggests, provides only a framework for water policy. There exists a range of additional EU legal acts addressing various specific water-related issues.
465 In detail see section III.2.1.3. a) below.
466 Article 8, Annex V, WFD.
467 Article 3, ibid.
468 Articles 3, 13, ibid.
469 Articles 4.4-4.7, ibid.
470 C-461/13, Bund für Umwelt und Naturschutz Deutschland e.V. v. Federal Republic of Germany, ECLI:EU:C:2015:433.
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The first group of such measures is concerned with various sources of pollution or the chemical status of water. The most important such measure is the urban waste water directive471, the single most costly piece of environmental legislation ever to be implemented in EU history472. It obliges EU member states to collect and subject to appropriate (i.e. at least biological) treatment all urban waste water above 2000 population equivalent and the waste water of certain industrial sectors. Another important source of nutrient input, that is nitrates pollution from agricultural sources, is regulated by the so-called nitrates directive473. It aims to prevent the nitrates pollution of ground and surface waters from agricultural sources through the promotion of good farming practices. Discharges into surface waters of the most prominent hazardous substances is governed by the environmental quality standards directive (or priority substances directive) that sets limit values for 33 priority hazardous substances and 8 other pollutants with a view to their progressive elimination474. The groundwater directive establishes a regime which defines groundwater quality standards and introduces measures to prevent or limit inputs of pollutants into groundwater475.
The EU’s general industrial pollution legislation, the so-called industrial emissions directive lays down an integrated permitting system for the most important industrial installations, with strict conditions relating to surface water, groundwater and soil protection476. It subjects all existing and future permits to a periodic review in light of the developments in the best available technique, a set of complex and evolving industry-specific technological and management benchmarks. While less relevant in this context, mention must nevertheless be made of the drinking water directive477, the bathing water directive478, the flood risk management directive479 or the marine strategy directive480, all contributing to the objectives of the WFD.
471 Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment.
472 http://ec.europa.eu/environment/water/water-urbanwaste/implementation/factsfigures_en.htm (accessed 12 February 2019).
473 Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources.
474 Directive 2008/105/EC of the European Parliament and of the Council of 16 December 2008 on environmental quality standards in the field of water policy.
475 Directive 2006/118/EC of the European Parliament and of the Council of 12 December 2006 on the protection of groundwater against pollution and deterioration.
476 Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control).
477 Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption.
478 Directive 2006/7/EC of the European Parliament and of the Council of 15 February 2006 concerning the management of bathing water quality.
479 Directive 2007/60/EC of the European Parliament and of the Council of 23 October 2007 on the assessment and management of flood risks.
480 Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy.
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Significantly, other EU environmental measures have important effects on water management.
These include horizontal legislation such as the environmental impact assessment and the strategic environmental impact assessment directives481, the directive on the access to environmental information482, the environmental liability directive483, EU nature conservation measures, especially the habitats directive484.