Analysis of the Water Framework Directive 2000

Discuss the context, content, significance and impact of the Water Framework Directive 2000 upon the British environmental law and practice.

ANSWER

Introduction

The Water Framework Directive (1) entered into force in December 2000 and constitutes the most comprehensive matrix of EU law on water to date. Offering a legal framework to protect and restore clean water in sufficient quantity across Europe, the Directive has become the operational tool for the restructuring of European Water Policy (2). The Framework Directive requires that measures are taken to ensure that the quality of all inland and coastal waters in the EU reaches good status by the deadline of 2015 (3). An approach based on holistic ecosystem protection is employed. It is intended that this objective will be achieved by the establishment of a river basin district structure upon which exacting environmental goals will be set. These include strict ecological objectives and targets for the improvement of surface waters.

This paper offers a brief discussion of the context and content of the Water Framework Directive, and considers its significance to and impact on British environmental law and practice in the years since its adoption.

The Water Framework Directive in Context

After a gestation phase characterised by difficult negotiations at the European Parliament and Council, the early years of the Directive can be viewed as a measured success. The WFD and its related Directives had the effect of repealing 12 other Directives dating from the 1970s and 1980s which had reduced EU Water Policy to a well-meaning but highly fragmented, cumbersome and burdensome regulatory system. In its consolidation of the law it is argued that the WFD creates synergies, streamlines and refines efforts and increases the effectiveness of protection for water systems.

The WFD has been applauded as a front runner in integrated water management in the world and it is submitted that it does indeed introduce a number of innovative and cogent principles and concepts into a binding regulatory instrument (4).The Directive adopts an approach based on sustainability to manage what is after all an essential and finite resource: the WFD not only treats water as a valuable ecosystem, it also recognises the crucial issues of human health and economic factors that depend on it. Grounded firmly on holistic principles of ecosystem protection, the WFD ensures that the fresh and coastal water environment is to be protected in its entirety, meaning all rivers, lakes, estuaries, coastal and groundwaters are covered (5).

The Directive enshrines the so-called Polluter Pays Principle. Moreover, by means of the introduction of water pricing policies incorporating an element of cost recovery and cost-effectiveness provisions into the legal matrix the Directive sets down significant milestones in the effective utilisation of economic instruments for the benefit of the environment. It is hoped that this will make a significant contribution to sustainable management of the scarce resource of water.

In summary the Directive establishes a timetabled working agenda that will result in the finalisation of a river basin management plan and programme of measures in 2009 and thereafter three six-year management cycles ending in 2027 (6).

The Water Framework Directive in Britain

The deadline for transposing the Directive was 22 December 2003 and the UK was one of no fewer than eleven member states (7) that failed to take all the required measures by that date although British implementation was fairly promptly completed thereafter.. Unlike member states such as Greece and Italy, the United Kingdom has to date been able to fulfil all its reporting obligations under the Water Directive (8).

As the UK Environmental Law Association has observed (2005) the fact that the Water Framework Directive (WFD) is as much concerned with land management as it is about water management and the fact that the link between the two is taken fully into account must be welcomed (9). The Environment Agency (10) is the environmental regulator for water (at least in England and Wales) and is responsible for safeguarding and improving of the quality of all the fresh, marine, underground and surface water under its control. The objective of the Agency coincides with that of the Water Framework Directive. It is charged with preventing water pollution wherever possible and must strive to ensure that pollution which might may affect ecosystems or human beings is cleaned up. The Water Framework Directive is accommodated in UK law alongside the established legal matrix of the Water Resources Act 1991 (11) and Part IIa of the Environmental Protection Act 1990 (12).

The Water Framework Directive’s implementation timetable specifies that by December 2006 it was necessary for the UK to make operational monitoring programmes to ensure a comprehensive view of water quality status within each river basin district under Article 8 and that publication and consultation must have taken place on a timetable and work programmes for the production of river basin management plans for each river basin district under Article 14. Article 16 provides that environmental quality standards were also established by that deadline (13).

The work for the current year, to be completed by December 2007 as specified by Article 14, concerns publication and consultation on an interim overview of significant water management issues for each UK river basin district (14).

The Groundwater Directive in Britain

In December 2006 the EU adopted the new Groundwater Daughter Directive (15) (2006/118/EC) in accord with Article 17 of the Water Framework Directive.. The new Directive both clarifies and complements the WFD. Inter alia, it settles new EU-wide quality standards for pesticides and nitrates which must be met to secure compliance with “good groundwater chemical status”. In particular, with a view to the question at hand, British environmental law and practice will be required to establish new national standards (so-called threshold values) for other pollutants on the basis of the substances of most concern for groundwater pollution at the local, regional or national level.

The new Directive also harmonises the criteria for the identification of a sustainable, upward trend and the starting point for trend reversal. Furthermore, the Directive reinforces existing measures to prevent or limit the release of pollutants into groundwater and these will result in further amendment to the applicable UK regulatory structure.

On the basis of these reforms, the United Kingdom will be required to conduct an assessment of the groundwater environment with the monitoring programmes that have just become operational in 2006 under the WFD (by Article 8 WFD) and, where necessary, the UK will need to establish programmes of measures to be included in the WFD River Basin Management Plans (16).

Concluding Comments: A Personal View

So long relegated to the backwaters of policy and largely ignored by the media, the issue of the effectiveness of environmental law has now risen to the very highest profile propelled by growing concerns over climate change and global warming. The question of water quality and protection measures has benefited from the increasing awareness of and sensitivity to environmental issues by the public and legislators alike. The United Kingdom, being an island nation has a particular interest in the quality of its national waters and the Water Framework Directive, if applied scrupulously and with rigour, should go a long way to safeguard this scarce resource. Management of the obligations entailed in the Directive must be well funded and the goal-oriented surveillance specified by the WFD must be carried out with a purposive and proactive spirit.

Enforcement is very important. Those undertakings with an ability to spoil water systems must be left in no doubt that it is in their interests to avoid water contamination and this should be achieved by the stern and prompt prosecution of transgressors.. The Water Framework Directive will and has already improved procedures designed to secure water quality in the United Kingdom, but it is no panacea and by no means the final word. As work in progress the WFD is a reasonable stepping stone, but it is a stepping stone that will ultimately become merely the foundation for a more comprehensive and sophisticated system of regulation. In this endeavour we must be diligent, for when all is said and done, we do not own our water: we are merely the caretakers of it for future generations.

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GLOBAL DOCUMENT WORD COUNT : 1636

Note to client: Notes and cites have been presented in an Appendix rather than by page footnotes as per the instructions on the brief.

APPENDIX

(1) See: http://ec.europa.eu/environment/water/water-framework/index_en.html

(2) See: http://ec.europa.eu/environment/water/water-framework/info/intro_en.htm

(3) This marks the end of the first management cycle under the Directive. A further two management cycles (6 year periods) will extend to the year 2027: http://ec.europa.eu/environment/water/water- framework/implrep2007/pdf/sec_2007_0362_en.pdf

(4) ‘Towards Sustainable Water Management in the European Union’ First stage in the implementation of the Water Framework Directive 2000/60/EC, European Commission, [COM(2007) 128 final], [SEC(2007) 363], p.5.

(5) Ibid.

(6) ‘Towards Sustainable Water Management in the European Union’ First stage in the implementation of the Water Framework Directive 2000/60/EC, European Commission, [COM(2007) 128 final], [SEC(2007) 363], p.6.

(7) These included: Belgium, Germany, Finland, France, Italy, Luxemburg, the Netherlands, Portugal, Finland, Sweden and the United Kingdom..

(8) Ibid, p.10.

(9) Response to the Environment Agency consultation exercise “Water for Life and Livelihoods – a Strategy for River Basin Planning” UK Environmental Law Association, (May 2005): http://www.ukela.org/publications_resources_consultation.shtml

(10)http://www.environment-agency.gov.uk/.

(11)http://www.opsi.gov.uk/acts/acts1991/Ukpga_19910057_en_1.htm#tcon

(12)http://www.opsi.gov.uk/acts/acts1990/Ukpga_19900043_en_1.htm#tcon.

(13)http://www.defra.gov.uk/environment/water/wfd/pdf/wfdtimetable.pdf.

(14)Ibid.

(15) OJ L 372, 27.12.2006, p.19.

(16) http://ec.europa.eu/environment/water/water-framework/implrep2007/pdf/sec_2007_0362_en.pdf.

BIBLIOGRAPHY

Europa: http://ec.europa.eu/ (various documents)

Groundwater Daughter Directive (2006/118/EC) OJ L 372, 27.12.2006, p.19

Response to the Environment Agency consultation exercise “Water for Life and Livelihoods – a Strategy for River Basin Planning” UK Environmental Law Association, (May 2005): http://www.ukela.org/publications_resources_consultation.shtml

‘Towards Sustainable Water Management in the European Union’ First stage in the implementation of the Water Framework Directive 2000/60/EC, European Commission, [COM(2007) 128 final], [SEC(2007) 363]

Water Framework Directive (2000): http://ec.europa.eu/environment/water/water-framework/index_en..html