Water Framework Directive: A new impetus?

It has been over a decade now since the EU Water Framework Directive 2000 (2000/60/EC) (WFD) was implemented into English law. But there have long been critics of the effectiveness of that implementation and with the passing of some critical deadlines at the end of 2015 and a recent case questioning whether the regulators were doing enough to counteract diffuse pollution, it may be that there will be more political and regulatory focus in this legislation in the next few years. Those whose current or future activities may have water resource or water quality implications should also be aware of the recently published River Basin Management Plans and consider the potential impact for their operations.

Requirements of the Water Framework Directive

The WFD aims to better integrate the management of different types of water resources and prevent further deterioration of aquatic ecosystems. The WFD is implemented in England principally by the Water Environment (Water Framework Directive) (England and Wales) Regulations 2003 (SI 2003/3242) (WFD Regulations) and responsibility for implementing the WFD is shared between the Environment Agency (EA) and DEFRA.

The WFD categorises water bodies into surface water bodies (eg lakes, streams, rivers, estuaries and coastal waters (to one nautical mile
offshore), artificial water bodies (eg canals and reservoirs), heavily modified water bodies (natural water bodies modified by human activity eg some harbours) and groundwater.

The WFD then uses river basin districts (RBD) as the principal management unit for these water bodies. An RBD is the area from which all surface run-off flows via streams, rivers and lakes into the sea. RBDs often cross administrative and political boundaries, but WFD requires co-operation to manage these. Previous regulatory regimes used smaller management units, which limited effectiveness
of both monitoring and implementation. There are 11 RBDs in England and Wales, one of which crosses the Scottish border and is jointly managed with the Scottish Environment Protection Agency (SEPA).

A river basin management plan (RBMP) must be established for each RBD, including objectives and a programme of measures intended to achieve the objectives. RBMPs also inform decisions on land-use planning. In the UK, RBMPS are established on 6 year cycles, the first running from 2009-2015. New plans commencing from 2016 have been published and submitted for ministerial consideration and approval. The approved updated plans are expected to be published in early 2016.

The WFD requires that:

• The status of the water bodies should be determined based on specified parameters and that there should be no deterioration in status of any water bodies.
• EU members should ensure all surface waters achieve “good chemical and ecological status” by 2015 by progressive reductions in pollution and restoration. Where the surface waters are heavily modified or artificial, they should reach good ecological potential (as close to good status as possible given the presence of a specific physical intrusion) and good chemical status by 2015. However, there is some flexibility on this 2015 deadline (ie up to 2027), subject to reliance on derogations or exceptions or specific justification and providing a clear timetable for measures.
• DEFRA and the EA have a legal duty to exercise their functions as regards regulation of the water environment so as to secure compliance with the WFD.
• All public bodies must have regard to the RBMPs when exercising their functions where they may affect that river basin district.

Slow progress to date

It has been clear for some time that England and Wales were going to miss the 2015 “good status” target by some way. Though no actual figures have been published to date, it is estimated that 46% of water bodies failed to meet good status by the end of 2015. This presents a very real risk that the European Commission will bring proceedings against the UK for failure to meet the targets of the WFD.

The 2015 European Commission report on WFD implementation [1], noted that the Commission will continue to pursue infringement cases in priority areas, which includes tackling diffuse pollution from agriculture.

Judicial review of WFD implementation

In that context, the recent judicial review of the EA’s and DEFRA’s implementation of the WFD, brought by WWF-UK, the Angling Trust and Fish Legal, will be particularly uncomfortable for the regulator. The applicant claimed DEFRA and the EA have not done enough to tackle the problem of diffuse agricultural pollution, particularly in special habitats.

The case focused on four protected Natura 2000 sites where the applicant NGOs believed that agricultural pollution had been particularly harmful: Poole Harbour in Dorset, the river Eden in Cumbria, Marazion Marsh in Cornwall and the river Lugg in Herefordshire.

One of the key regulatory tools they believe should be used are water protection zones (WPZs). These were introduced in the 2009 RBMPs to protect freshwaters against diffuse pollution and to be applied alongside other regulatory and voluntary measures. The NGOs want to see greater use of WPZs, which provide bespoke local measures to reflect the needs of a specific catchment when voluntary measures to meet
WFD requirements are not working or are not expected tp work. WPZs apply statutory measures over and above existing ones to prohibit activities that could cause damage or pollution.

Only one WPZ has ever been designated to date – in the river Dee catchment in England and Wales. This was done in 1999 following a series of accidental chemical pollution incidents – before WFD had even been implemented in the UK.

Both DEFRA and the EA denied that they do not intend to apply WPZs to tackle diffuse agricultural pollution, noting that the work needed before a zone can be proposed and deployed is being carried out through catchment-based initiatives, partnership working and ongoing investigation, monitoring and evidence gathering. The complexity of gathering sufficient evidence to support a WPZ designation appears to be a significant hurdle to their use.

Catchment-sensitive farming has been one of the key methods used by the regulator to reduce the impacts of diffuse agricultural pollution. However, outcomes are relatively modest with reductions of these contaminants in rivers of 3-7%. The NGOs bringing the judicial review claimed that this voluntary approach has failed to do enough to protect vulnerable places such as European protected sites (protected under the EU Habitats and Birds Directives).

The two sides agreed to settle in court. In the consent order, WWF-UK, the Angling Trust and Fish Legal withdrew their case and DEFRA and Natural England set out a joint position statement agreeing to evaluate the use of mandatory WPZs. It says that results will be set out “as soon as reasonably practicable” in the diffuse water pollution plans or site improvement plans for each site.

Conclusions

In practical terms, a greater use of WPZs could mean much tighter local controls on land planning and potentially polluting activities in the areas covered by these designations. For those undertaking or planning activities with potential water resource or water quality implications, you will need to be aware of whether such designations are being considered. If so, you may want to make submissions during the three month public consultation period. You should also be aware of the content of your updated local RBMP, as public bodies will need to have regard to this when exercising their functions, such as granting planning permissions.

We also reported in our September Legal Environmental Bulletin that a recent decision of the European Court interpreting the WFD requirement for “no deterioration in status of any water body” means that there may be closer scrutiny of potential water quality issues before the grant of planning permissions and other development consents.

Given the potential threat of proceedings by the European Commission against the UK for failure to meet the WFD targets by 2015, the EA
and DEFRA will want to be seen to be taking proactive measures to meet the WFD water quality objectives. It looks as though we will be hearing plenty more on this topic in the next few years and issues of water abstraction and water quality will become increasingly important in land use and development decision-making.