An introduction to the Water Framework Directive (2000/60/EU)

Abstract

This article provides a summary of the main provisions of the Directive and briefly considers some of the implications for water policy in England & Wales. It largely follows the order of the provisions as set out in the Directive, except for the requirements for river basin management plans, which are more usefully considered at an earlier stage.

Introduction

The Water Framework Directive (WFD) establishes a common framework for the protection and management of inland surface waters, transitional waters, coastal waters and groundwater. Prior to its implementation on the 22 December 2000, such waters were governed by widely diverging legislation. General opinion was that existing water policy was too fragmented and that a single framework directive was required. The WFD rationalises EU water legislation by repealing and replacing some existing legislation and providing a legal framework for remaining directives (Article 22 lists the repealed Directives). Member states are given 3 years to transpose its requirements into national legislation.

The UK Government's first consultation paper on transposition and implementation in England and Wales was published in March 2001. The second consultation paper, published in October 2002, includes a response to comments received on the first consultation paper as well as consideration of the gaps between existing legislative provisions and WFD requirements. A third consultation paper is planned for later in 2003 which will contain proposed draft transposing regulations, a revised Regulatory Impact Assessment (RIA), a summary of responses to the consultation paper with the Government's response, and transposition notes setting out how the regulations transpose the main elements of WFD.

England and Wales are already well placed to implement the WFD. The Environment Agency's existing powers to regulate discharges to water and abstractions, the production of non-statutory Local Environment Agency Plans (LEAPS), estuarial management plans and the development of Catchment Abstraction Management Strategies (CAMS) will provide a solid foundation of techniques and experience for delivery of much of the action required by the WFD. Existing domestic legislation - principally the Environmental Protection Act 1990, the Water Resources Act 1991, the Water Industry Act 1991, the Environment Act 1995, and the Pollution Prevention and Control Act 1999 - already provide many of the powers that will be needed. The new Water Bill 2003 is also expected to aid implementation. Other community legislation, such as the Urban Waste Water Treatment Directive or the Nitrates Directive, which have already been translated into domestic legislation, will help deliver further requirements.

Purpose of the Directive

Article 1 sets out the purpose of the WFD:

1. To prevent further deterioration and protect and enhance the status of aquatic ecosystems, terrestrial ecosystems and wetlands;
2. To promote sustainable water use;
3. To reduce, or cease/phase out (depending on the substance type) discharge emissions and losses into surface waters of dangerous substances;
4. To reduce groundwater pollution; and
5. To mitigate the effects of floods and droughts.

Environmental Objectives

Article 4 sets out the WFDs specific environmental objectives:

1. To prevent deterioration of ecological quality and pollution of surface waters and restore polluted waters, in order to achieve good water status in all surface waters by 31 December 2015;
2. To prevent deterioration of groundwater quality, restore polluted groundwater, and ensure a balance between abstraction and recharge of groundwater, in order to achieve good groundwater status in all groundwater's by 31 December 2015;
3. To comply with all standards and objectives relating to protected areas by 31 December 2015, unless otherwise specified in the Community Legislation under which the individual protected areas have been established.

The criterion for judging performance is the achievement of 'good ecological status'. Water will be classified into 5 classes, 'High', 'Good', 'Fair', 'Poor' and 'bad'. 'Ecological status' is itself assessed by performance in 3 separate assessments of biological, chemical and hydromophological status (Annex V provides a detailed set of parameters).

There will be limited exceptions to achieving these objectives:

• Deadlines may be extended for the purpose of phased achievement of environmental objectives;
• Less stringent environmental objectives may be applied for water affected by human activity or where natural conditions are such that achievement of the objective would be unfeasible or disproportionately expensive;
• Temporary deterioration will not cause breach if due to exceptional and unforeseen natural causes, force majeure or accidents;
• Failure to meet the environmental objectives if due to physical modifications or alterations or new sustainable human development activities will not cause breach.

However, in such cases all practical mitigating steps must be taken.

Administrative Framework

The primary administrative unit for the implementation of the WFD is the "River Basin District" (RBD). The Article 2 definition of an RBD states that it may include more than one river basin, and will cover all surface water and associated groundwater and coastal waters.

Article 3 requires Member States to identify and assign water bodies to RBDs based on hydrological catchments, with coastal and ground waters being assigned to the most appropriate district. Member states must then appoint a Competent Authority for each of the RBDs to co-ordinate the implementation of the WFD within it. The European Commission must be notified of all Competent Authorities by mid 2004, providing all the information required in Annex I.

Co-ordination of measures in river basins will continue across administrative/ political boundaries – where Member States boundaries are crossed, an international RBD will be established and action will be co-ordinated. Where an RBD crosses the boundaries of the EU, action will be co-ordinated with the non-EU state where possible.

This model for water management is close to the approach already used in England and Wales. The Environment Agency has functions and geographical boundaries, which are compatible with many of the WFD requirements and it will be appointed 'Competent Authority'. Although, co-ordination with a number of other bodies, such as MAFF, the Countryside Agency, British Waterways and English Nature, will be vital to successful implementation.

The RBDs will be based upon the Agency's hydrological Regional Boundaries, which have been the basis for water management in England & Wales, with minor changes, since the 1973 Water Act. This will result in 11 RBDs covering England & Wales, including districts that cross English/Welsh and English/Scottish boarders.

River Basin Management Plans

Article 13 of the WFD places a duty on member states to ensure that a comprehensive River Basin Management Plan (RBMP) is produced, and updated every six years, for each RBD. The first set of plans must be published by December 2009 (Annex VII sets out the required content).

The purpose of the plan is to set out the objectives that have been set for the water bodies within the RBD and to explain in broad terms how these objectives are to be achieved. The analysis, which will have been used to inform the objective setting and the design of the programme of measures, must also be summarised, including information on monitoring arrangements and the status of the water bodies within the river basin district. The RBMPs must be copied to the European Commission, within 3 months of publication (Article 15).

A requirement to produce the RBMPs will need to be introduced into English Law. The production of the plans will remain the ultimate responsibility of the Member State, but it is proposed that the Environment Agency, which already has experience of producing and consulting on Local Environment Agency Plans (LEAPS), should have responsibility for pulling together the plans. The Agency's other planning work, such as Catchment Abstraction Management Strategies (CAMS), will also help provide a solid foundation for delivering some of the action required by the WFD.

Public Consultation

Member states must ensure the following avenues for public consultation for the production of RBMPs and their periodic revisions (Article 14):

• At least 3 years before a plan is to be in operation, a timetable and work programme for its production must be made public;
• An interim overview of significant water management issues must be made public not less than 2 years before the plan is operational;
• Draft copies of the plan must be available at least 1 year before its operational, and the public must be given 6 months to comment upon it;
• All background documents must be available on request.

The Commission wants enhanced public involvement for two main reasons: to help balance the interests of different stakeholders; and to improve enforcement and implementation of the WFD by increasing transparency which will lead to consultation, and complaints and legal action where implementation is not correct.

River Basin Assessments

The WFD requires the Competent Authority to carry out an analysis of the RBDs to determine the factors, which influence both water quality and water quantity.

Article 5 states that the following RBD assessments must be drawn up in accordance with the technical specifications set out in Annexes II & III. They must be completed by autumn 2004, reviewed and updated by 2013 and repeated every 6 years:

1. An analysis of the characteristics of the RBD;
2. A review of the impacts of human activities on surface water and groundwater status;
3. An economic analysis of water in the RBD.

For England & Wales it is proposed that OFWAT be responsible for the collection of data necessary for the economic analysis required in 3 above, as they are well placed to provide information supplied to them by water companies. The collection of some information, however, for example on abstraction charges and the provision of long-term forecasts of water supply and demand, will still have to be undertaken by the Environment Agency.

Register of Protected Areas

Article 6 requires Member States to establish a Register of Protected Areas. The register must list areas within the RBD that are designated under EU legislation for the protection of surface and groundwater or the conservation of habitats and species directly depending on water. The register must be completed by autumn 2004, kept under review and updated.

Water used for Drinking Water Abstraction

Article 7 requires Member States to identify current and future water bodies (providing on average more than 10m3 day or serving more than 50 people), which may be used for the abstraction of drinking water to ensure that treatment will meet the requirements of the Drinking Water Directive 98/83/EC. Water used for drinking water must be protected with the aim of avoiding deterioration in water quality and reducing the level of purification required to produce drinking water, e.g. by establishing "safeguard zones" (This requirement is discussed further in relation to the Programme of Measures, in Article 11).

Monitoring

Article 8 requires Member States to ensure that a programme for monitoring water status is established 'in order to establish a coherent and comprehensive review of water status' in each RBD. Such monitoring includes volume and flow rates, as well as ecological and chemical parameters necessary to determine water status.

Monitoring is required in order to determine the effectiveness of RBMPs and aid in their periodic revision. It also acts as a measure of compliance. Monitoring is not just required after and RBMP has become operational. The full monitoring programme must be in place at least 3 years prior to this (by autumn 2006). This is necessary to ensure that there is an adequate link between the programme of measures and the state of the environment.

Monitoring of ecological quality/ groundwater status provides the basis for all other actions in implementing the WFD. Monitoring locations must include, if possible, sufficient high status waters to ensure the validity of type reference conditions and cover the requirements of protected areas. Monitoring should provide an adequate determination of ecological quality and how it is changing. Some details of appropriate locations are provided in Annex V, which focuses monitoring efforts on water bodies subject to anthropogenic pressures. This requires that member states initially produce a list of priority waters to be monitored. These include:

• Bodies at risk from point source pollution;
• Bodies at risk from diffuse source pollution;
• Bodies at risk from significant hydromorphological pressure.

Biological parameters must be monitored at all sites. Other parameters may first be subject to an investigation and inventory prior to additional monitoring.

For groundwaters there is a general requirement to monitor hydrology in all groundwater bodies, and more specific requirements for those subject to abstraction and direct and indirect discharges. For pollution and water level information, the WFD requires only that monitoring is sufficient to detect trends. The WFD is less prescriptive for surface waters.

A programme of monitoring for protected areas shall also be established within each RBD. Timetabling and specifications for the monitoring of protected areas shall be the same as that already required by the EC legislation that established the protected area.

Recovery of Costs for Water Service

Article 9 states that the principle of recovery of costs for water services* (including environmental and resource costs) must be taken into account in accordance with the 'polluter pays' principle. The RBD economic analysis of water use will form the basis for these calculations.

Member states are required to ensure, by 2015, that water-pricing policies provide adequate incentives to ensure efficient water use and that this is spread across different water use sectors. However, Member States can ignore this provision provided this does not compromise the achievement of the objectives of the WFD. If they are to do so, they must give reasons for this in their RBMP.

The principle of the recovery of costs of water services has largely already been given effect in the England & Wales.

Combined Approach to Pollution Control

Article 10 states that discharges to waters shall be controlled, by one or more of the following, as set out in existing European Legislation, such as the Integrated Pollution and Prevention Control Directive 96/61/EC, the Urban Waste Water Treatment Directive 91/271/EEC and the Nitrates Directive 91/767/EEC:

• Establishment of emissions limits;
• Emission controls based on best available techniques;
• Use of best environmental practices for diffuse sources.

Wherever the quality objectives of the WFD require stricter conditions to be applied, Member States must ensure that these are achieved. The use, together, of emission limits and environmental quality objectives is known as the 'combined approach' and respects the integration of different strands of EC pollution control policy developed over many years.

Article 10 appears to carry with it no transposition requirement in England & Wales as controls on emissions are already based on an environmental quality standard approach.

Programme of Measures

Having carried out monitoring to determine the status of the water bodies within a RBD, Article 11 requires the Competent Authority to use this information in developing an integrated Programme of Measures to meet the WFDs environmental objectives, in particular that of "good water status" within the basin. These include compulsory basic measures which will include:

1. The implementation of EU legislation for water protection and the directives listed in Part A of Annex VI (including water protection, environmental impact assessment, major accident hazards, nature protection legislation);
2. Recovering the costs of water services;
3. Promoting efficient and sustainable water use to avoid compromising the achievement of the Art. 4 environmental objectives;
4. Meeting drinking water requirements, including safeguarding water quality to reduce the level of purification needed;
5. Controlling abstraction (of surface and groundwater) and impoundment (of surface water) through registration of abstractions, prior authorisation;
6. Controlling artificial recharge or augmentation of groundwater through prior authorisation;
7. Controlling point source discharges liable to cause pollution through a requirement for prior regulation;
8. Controlling diffuse sources liable to cause pollution through measures to prevent or control inputs of pollutants;
9. Controlling any other significant adverse impacts on water status identified by the Art. 5 river basin characterisation analysis;
10. Prohibiting direct pollution discharges into groundwater;
11. Eliminating pollution of surface waters by priority substances and progressively reduce pollution by other substances otherwise preventing environmental objectives from being achieved;
12. Preventing significant losses of pollutants from technical installations and prevent/reduce the impact of accidental pollution incidents.

They may be complemented by supplementary measures if the basic measures are not sufficient to meet the environmental objectives. Supplementary measures are set out in Part B of Annex VI to the WFD as a non-exhaustive list of potential initiatives for improving water status, ranging from economic instruments to negotiated agreements to rehabilitation projects and R&D.

Quality control and review measures should be included to remedy failures, amend permits and adjust monitoring programmes. A Programme of Measures must be established by autumn 2009 and all measures made operational by 2012. They must be reviewed and updated if necessary by 2015 and then every 6 years thereafter.

England & Wales already have wide-ranging legislation to protect and manage the water environment. In particular, comprehensive powers already exist in national legislation to prevent water pollution (principally in Part III WRA 1991, Environment Protection Act 1990, Part I (Integrated Pollution Control), Integrated Pollution Prevention and Control Act 1999) and to control water abstraction (Part II WRA 1991 as amended by the new Water Bill 2003).

Strategies Against Pollution of Water

Article 16 states that daughter directives will need to be adopted under the WFD to control individual pollutants or groups of pollutants presenting a significant risk to or via the aquatic environment, including risks to waters used for the abstraction of drinking water. These pollutants are known as priority substances. A two tier system for priority substances will exist:

1. Discharges, emissions and losses of priority substances will be progressively reduced; whilst
2. Discharges, emissions and losses of priority hazardous substances (a sub-set of the priority substances) will cease or be phased out within 20 years.

The European Commission has already proposed a first list of priority substances. It is due to be reviewed by Autumn 2004. Once the list has been agreed, harmonised emissions controls and environmental quality standards will be set for each priority substance under the combined approach.

Strategies to Prevent and Control Pollution of Groundwater

Article 17 states that a daughter directive to prevent and control groundwater pollution, with the aim of achieving good groundwater chemical status must also be adopted.

Member States must establish appropriate criteria for assessing good groundwater chemical status and identifying significant and sustained upward pollutant trends, by autumn 2005.

Penalties

Art. 23 of the WFD requires Member States to determine penalties applicable to breaches of national provisions adopted pursuant to the WFD. It states that these should be effective, proportional and dissuasive.

The UK Government considers that s.85 of WRA 1991 is relevant to existing national provisions which will be used to give legal effect to WFD.

Timescale for Implementation

Date

Action

22 December 2000

Directive entered into force (article 22)

22 December 2003

Bring into force the laws, regulations and administrative provisions necessary to comply with the Directive (article 24)

Identify competent authority (article 3)

22 June 2004 Provide Commission with list of competent authorities (article 3) 22 December 2004

For each District, complete analysis of characteristics of the surface and groundwater's, review the environmental impact of human activity (industry, farming etc) and prepare economic analysis of water use (article 5)

Establish register or registers of Protected Areas (articles 6 and 7)

22 December 2005 In the absence of agreement at Community level, of criteria for identifying significant and sustained upward trends in groundwater pollution and for the definition of starting points for trend reversals, Member States to establish appropriate criteria (Article 17(4)) In the absence of criteria at national level, trend reversal is to start at 75% of quality standards applicable to groundwater in existing Community legislation (Article 17, 5) 22 December 2006

Make operational monitoring programmes to ensure comprehensive view of water quality status within each River Basin District (article 8)

Publish and consult on a timetable and work programmes for the production of River Basin Management Plans for each River Basin District (article 14)

In the absence of agreement at Community level, for substances included on the first priority list (see article 16), member states to establish environmental quality standards for all surface water affected by discharges of those substances and controls on principal sources of discharges (same obligation to apply 5 years after subsequent inclusion of a priority substance in the list, in the absence of Community agreement) (article 16)

22 December 2007

Publish and consult on an interim overview of significant water management issues for each River Basin District (article 14)

22 December 2008

Publish and consult on drafts of the River Basin Management Plans (at least 6 months to be allowed for comments in all the above cases) (article 14)

22 December 2009

Establish programmes of measures in each River Basin District in order to deliver environmental objectives (article 11)

Publish first River Basin Management Plan for each River Basin District, including environmental objectives for each body of surface or groundwater and summaries of programmes of measures (article 13)

2010 Ensure proper water pricing policies are in place (article 9)

22 December 2012

Make operational programmes of measures in each River Basin District to deliver environmental objectives (article 11)

Interim progress reports to be prepared on progress in implementing planned programmes of measures (article 15)

22 December 2015

Main environmental objectives to be met (article 4)

22 December 2015 and every 6 years thereafter

Review and update plans (with same consultation and interim reporting arrangements described above) (articles 13,14 and 15)

To access a copy of the directive click on this link (this will open a PDF in a new window)

For further information, please contact Richard Temple at richard.temple@cms-cmck.com or on + 44 (0) 20 7367 3738.

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*"Water services" are defined as: all services providing abstraction, impoundment, storage, treatment and distribution of surface water or groundwater, or wastewater collection and treatment facilities for households, public institutions or economic activities.