IMPLEMENTATION OF THE WATER FRAMEWORK DIRECTIVE
RESPONSE FROM UNITED KINGDOM ENVIRONMENTAL LAW ASSOCIATION
WATER WORKING GROUP
The group welcomes the Government's decision to launch a further enquiry into the planned
implementation of the Water Framework Directive ("WFD"). The terms of reference put forward by
the Environment, Food and Rural Affairs Committee have been briefly addressed by the group below
except for the role that the Environment Agency will take in implementing the WFD. This question
raises difficult and controversial issues. As a group representing water lawyers in private practice,
industry, government and agencies we would not be able to place before the Committee a single view
to which all sections of the group could subscribe. The group would be pleased to assist the
Committee with further evidence that expands upon our submission if required.
By what means, and over what timetable, the Government intends to implement the Directive in
the United Kingdom
1.
We note that the Government is already behind schedule in its planned consultation on the
implementation of the WFD. It appears that the second consultation paper which was due in
March 2002 will not now be published until at least the end of the year. We would like to
stress the importance of providing adequate consultation on detailed proposals for
implementation in order to give the public and stakeholders sufficient opportunity to
comment on them.
2.
We understand that the Government is proposing to keep the existing administrative system in
place as far as possible and that secondary legislation will be sufficient to implement the
WFD. We think it is important that any regulations are carefully considered in the context of
the draft Water Bill, particularly in relation to the WFD's objectives on abstraction
management and sustainable water use.
3.
The Government should take this opportunity to carefully consider whether a simpler more
rationalised system which can effectively and efficiently deliver sustainable development can
be achieved rather than modifying the existing system.
4.
In terms of the WFD timetable, we believe it is vital that the necessary preliminary actions are
taken now to ensure that the WFD targets can be met. The Government’s approach and
emphasis, in its implementation of the Directive should be one of getting it right rather than in
meeting deadlines.
5.
It is important that compliance with the programme of measures in any River Basin
Management Plans ("RBMPs") is mandatory. The RBMPs must be clear, transparent,
outcomes focused and legally enforceable. Each RBMP should specify: (i) the standards
which are to be applied in relation to each water body; (ii) the precise action which should be
taken in order to achieve those standards; (iii) the agreed priorities for actions within the
programme of measures; (vi) assign responsibilities for implementing those actions and
timeframes for delivery; (v) the commitment of funding and resourcing mechanisms towards
achieving the actions and (vi) the penalty for non-compliance. Public consultation will be a
crucial element of RBMP development to ensure that an agreement is reached with any many
affected parties as possible.
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6.
The control of diffuse pollution cannot be achieved without the application of command and
control measures as well as incentives. The Environment Agency should closely examine
how diffuse pollution control is being addressed in other jurisdictions, e.g. pollution offset
schemes being developed by the Environmental Protection Authority in New South Wales,
Australia.
What will be costs of implementing the directive, how the costs will be met, how they will be
apportioned and the implications for water pricing policy
7.
Any estimate of the expense required to comply with the WFD should not include any
outstanding costs relating to compliance with existing legislation such as the Urban Waste
Water Treatment Directive, the Bathing Water Directive and the Nitrates Directive. This
includes any cost of monitoring or information collection that would be required under other
legislation.
8.
We agree that the compensation costs associated with revoking abstraction licences within the
next ten years are part of the Environment Agency's water resource management function and
as such should be met through a Scheme of Abstraction Charges whereby abstractors with
chargeable licences fund the compensation payments.
9.
It is unclear whether the Government intends to institute arrangements to align the AMP
cycles in the future with the six yearly RBMPs. An alternative approach would be to stagger
any investment strategies so that they were approximately two years in front of the target
dates for the programme of measures in order to drive them forward and make sure that
deadlines are met.
Whether the definitions of, for example, what constitutes a river basin and significant human
activity have been clarified sufficiently to allow management plans to be formed
10.
The definition of "river basin" should not directly impact how management plans are formed.
The key factor for RBMP development will be maintaining flexibility e.g. for a large river
basin it may be preferable to have a number of co-ordinated RBMPs which relate to different
sub basins or even individual water bodies.
11.
Ascertaining whether anthropogenic pressures are significant is a judgment which has to be
made after analysis of all the pressures affecting the particular catchment. We are concerned
that the definition of "significant anthropogenic pressures" could introduce a de minimis level
too early in the assessment process and that cumulative impacts may not consequently be
sufficiently addressed.
12.
It appears that definition of "low levels of distortion resulting from human activity" is to
identify a de minimis level of anthroprogenic impacts which is acceptable in water of good
ecological status. At the end of the classification process the Member State has to make an
assessment as to whether the total of anthropogenic impacts on a water body is so low that it
is nevertheless water of a good ecological status. That implies a low degree of aggregate
impact as being significant. However, that aggregate impact will be made up of a number of
sources of impacts. In order to elect to omit data in relation to any individual influence
Member States have to make a determination of significance at a very much lower level. It
may be that the appropriate criterion is that influence could not possibly have a significant
impact either individually or in combination with other factors. This implies a true de
minimis criterion.
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13.
It is important for the Environment Agency to clearly state its intention regarding a working
typology to allow the classification of water bodies to proceed. SEPA has stated that it will
adopt multiple type-specific conditions for each quality element within a water body type and
we urge the Environment Agency to take a similar decision as soon as possible so that work
on the RBMPs can commence.
14.
In order for RBMPs to be produced, sufficient baseline information on the type and the
magnitude of significant anthroprogenic pressures in each River Basin District must be
obtained. It is clear that there are a number of significant gaps in the existing body of
information. Comprehensive land and water capability assessments need to be undertaken
across the country using a consistent and scientifically rigorous methodology. The minimalist
approach of coupling together partial and inadequate existing data sources or relying on
questionnaires as suggested by the Environment Agency is wholly unacceptable.
15.
In most cases such definitions will need to be revised as implementation evolves. It is
unlikely that there will ever be a time when definitions will apply indefinitely. There must be
a continuous process of application, evaluation and improvement. Management plans will
have to be formed now, based on best available knowledge and the clearest definitions that
can be formulated. The difficulty will be in setting up a flexible system with an apply monitor - evaluate - modify - apply - etc. approach.
What the tangible benefits of the Directive are likely to be and whether its objectives can be
achieved in a cost effective way
16.
The EU's approach to water law over the last twenty years has been characterised by a lack of
integration and piecemeal and occasionally conflicting policies which has been aggravated by
the often inconsistent implementation of directives by Member States. An important benefit
of the WFD will lie in its use as strategic legislative framework designed to tie together
various strands of water law. The Directive also provides a window of opportunity to set the
foundations for delivering sustainable development because of its integrated approach
towards water management and conservation.
17.
The WFD provides the means of ensuring that Member States fulfil outstanding commitments
under other directives.
18.
The WFD introduces a number of innovative ways to address water management initiatives.
For the first time, groundwaters and surface waters will be considered together at an EU level.
The WFD also provides a framework for the co-ordination and application of other EU water
and quality initiatives through the setting of environmental quality objectives. It introduces a
new combined approach to pollution control through integrating emission limit objectives that
target point source pollutants with environmental quality objectives that monitor the receiving
environment and target diffuse pollution. It also forces an examination of anthroprogenic
pressures at catchment level.
19.
Consistent implementation is vital to the success of the WFD and the Government should
adhere and continue to participate in the Common Implementation Strategy as far as possible.
20.
One obvious omission from the WFD in light of the terrible flooding throughout Europe in
the last months is the fact that emergency planning and water quantity management is
currently insufficiently legislated for in any detail at an EU level.
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21.
The question should not be: can objectives be achieved in a cost-effective way. The objectives
will have to be met eventually - the question should be what is the most cost-effective way to
deliver the largest impact in the shortest time. The AMPs have been successful and should
help to drive forward the programmes of measures in the future.
22.
The encouragement of good environmental practice driven through binding codes of practice
should lead to economic benefits in the long-term.
Contact:
Elizabeth Hattan
Convenor of UKELA Water Working Group
Freshfields Bruckhaus Deringer
65 Fleet St
London
EC4Y 1HS
Tel: 020 79364000
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