The Water Framework Directive: to succeed or not to succeed?

The Water Framework Directive (WFD) was adopted on 23 October 2000 and hailed (at the time) as "the most significant piece of European environmental legislation ever introduced.

The Water Framework Directive is the most significant piece of European environmental legislation ever introduced, but will it be successful, asks Sarah Thomas.

The Water Framework Directive (WFD) was adopted on 23 October 2000 and hailed (at the time) as "the most significant piece of European environmental legislation ever introduced. It is now 11 years in and competent authorities have been identified, water bodies categorised, river basin management plans (RBMP) drawn up and programmes of measures put into place. This has all been in order to help ensure ‘good status' is achieved across the EU. But does this mean that the WFD has lived up to its initial expectations?

With just over two years to go until the first review of the RBMPs in December 2013, now is an ideal time to ask not just whether the WFD has been a success, but also by what criteria will it ultimately be judged? We could of course just ask ourselves whether it has achieved "good status for all water bodies in the EU"? But this would be overly simplistic and the answer cannot be found until knowing more about the criteria being used for judging ‘good status'.

Enforcement

In England and Wales, where the WFD was transposed on January 2 2004, the Environment Agency is nominally responsible for enforcement. However the WFD adopts a holistic approach to regulation, designed to bring together a plethora of stakeholders in order to achieve the common objective of ‘good status'. This approach is accomplished through the mechanism of the RBMP, which details how the programme of measures will be enforced and by whom.

At the ground level, the agency or regulatory body which will be responsible for enforcement depends on the "environmental pressures" being exerted. For example, a threat to drinking water would engage the Drinking Water Directive and, as a result, involve the Drinking Water Inspectorate. It is likely the local authority would use planning policy to protect against any future threat in the locality. Equally, the WFD envisages the use of non-legislative measures such as public participation.

This holistic approach to enforcement has the potential to be very successful. In theory, bringing together many actors under one umbrella ensures that all are striving to achieve ‘good status'. However it also requires joined up thinking, with different regulators cooperating on enforcement. By 2013 it should be possible to tell whether the WFD's approach to enforcement has been vindicated by tangible improvements to water quality and the protection of water quantity on the ground.

Implementation

Implementation of the WFD across the EU requires that member states enact certain procedures. One point to stress about the WFD is that, unlike other environmental directives that prescribe specific targets, this directive is manifestly not a target-based piece of legislation. One notable exception is the WFD's explicit obligation that no water bodies are to experience a "deterioration in status" from one class to another. But as for the ‘objective' of ‘good status', from a legal perspective, a member state will not have breached its obligation so long as it implements the processes required by the WFD.

This is significant as theoretically a member state may have designated a competent authority, categorised its water bodies and drawn up approved RBMPs, yet still see a reduction of water quality on the ground with no threat of legal sanction from the European Commission. Consequently, some may argue that the WFD does not go far enough to ensure uniform progress across the EU.

The counterpoint is that the WFD is based on the principle of subsidiarity. This explains why the WFD does not aim to subsume or override all pre-existing regulations, but rather seeks to direct them into a single effort. The result of course is that we are likely to see a more patchwork picture of improvement measures and enforcement across the EU.

Delayed Deadlines

Even though the WFD does not set substantive targets, implementation by member states has sometimes been slow. As of June 2011, Belgium, Portugal, Spain, and Greece were yet to adopt approved RBMPs. The deadline was 22 March 2010. Belgium and Portugal were mentioned in the first implementation report in 2007 as having had legal proceedings started against them for poorly transposing the WFD into national law. Indeed, most member states have made full use of the available exemptions to push back the implementation schedule. Whereas the original aim was to achieve ‘good status' by 2015, the deadline for some is now 2025.

In trying to answer the question of "will it succeed", it is easy to forget that improving water quality across the EU's 27 member states is a herculean task. Differing levels of economic development, different water stresses (comparing industrialised northern Europe with arid, water stressed regions in the South for instance) combined with varying approaches to environmental regulation make it nearly impossible to legislate prescriptively for a single outcome.

Judged on this basis, the WFD's pragmatic approach to water regulation has been a success, as by and large most member states have signed up to a common framework and common set of objectives. This should lead to at least the improvement and better regulation of water quality, even if the elusive "good water status" is never comprehensively achieved across the whole of the EU. WWi

Author's note: Sarah Thomas is a partner with international law firm Pinsent Masons LLP, specialising in water-related infrastructure and its regulatory framework. Email: sarah.thomas@pinsentmasons.com.

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