Dessication in Brabant province - a European law perspective
Professor Marleen van Rijswick investigated the legal limits of groundwater extraction
Recent articles in Brabants Dagblad and on Waterforum draw attention to the June 2021 report 'Dessication in Brabant - A European Law Perspective'. The authors, including Marleen van Rijswick (Professor of Water Law at Utrecht University), investigated whether the province of Noord-Brabant is tackling the issue of dessication, in particular the excessive extraction of groundwater, with sufficient vigour. Is the policy in line with European nature and climate legislation? Provincial government seems happy 'to do its utmost' for 2027 and beyond. But there is a legal obligation to achieve results in the short term (i.e. 'yesterday'). Time is running short to balance the interests at stake; before long the courts will intervene, as happened in the nitrogen dossier.
Kees Bastmeijer and Jonathan Verschuuren of Tilburg University worked besides Marleen van Rijswick on the report commissioned by nature organisations from Noord-Brabant. The starting point is a recent study by Deltares et al. ('Research on water demand for nature 2020') which showed that there is a significant imbalance between groundwater abstraction and recharge, and that the ecological 'water demand' of nature in Brabant is not met.
Against this background, the three experts in law compared measures taken to reduce dessication in Noord-Brabant with legal obligations and assessment frameworks of the European Birds and Habitat Directives and the Water Framework Directive (WFD). They examined whether the province and the water boards are complying with these EU legal obligations and prohibitions, and what consequences this may have for the practice of extracting groundwater (both licensed and permission-free).
'Prohibition to deteriorate' and 'reasonable doubt'
There appears to be a lot of tension between the current provincial policy measures and the applicable European law obligations, and this tension may increase further. The Habitat Directive, for example, has a strict 'deterioration prohibition' (Article 6.2) with which the current situation is clearly in conflict. The prohibition on deterioration means that any 'reasonable scientific doubt' about significant (negative) effects must be excluded. According to the authors, the management plans for our Natura 2000 sites must be subjected to strict scrutiny on this point.
The same 'reasonable scientific doubt' (Article 6.3) provides, according to the case law of the European Court of Justice, sufficient grounds to impose restrictions on 'sprinkler irrigation', which currently does not require a permit. A significant problem is that the total amount of license-free extraction of groundwater currently is not capped, which has allowed it to almost triple in recent dry years like 2018.
The government currently seems to have limited control over the total volume of groundwater withdrawals... It is likely that existing and new extractions will become the subject of legal disputes
Adequate measures? No sense of urgency
By 2027 at the latest, groundwater extraction and recharge must be in balance, according to the Draft Regional Water and Soil Programme 2022-2027 (RWP) of the Province of Noord-Brabant. But this is not in line with the European ban on deterioration that sets preservation of the current situation as the norm. Furthermore, the RWP gives the impression that the province sees the targets for 2027 (and even as far away as 2050) as an obligation of effort, whereas many obligations under EU law are obligations to achieve results. In short, there is no sense of urgency. The province also relies too much on the cooperation of social partners in implementing the policy, which surprises the authors and raises their concerns about its effectiveness and the timely achievement of objectives.
According to the authors, it is likely that existing and new water abstractions (both those requiring a permit and those not requiring a permit) will become the subject of legal disputes. They consider it highly probable that groundwater extraction will be judged as uncompatible with the requirements they describe in the report. In the short term, due mainly to the deterioration prohibitions of the Natura 2000 regime and the WFD, and because of the Natura 2000 assessment framework for new plans and projects. And possibly, in the future, also due to the imperilment of the WFD objectives for groundwater for 2027.
The WFD requires a number of objectives to be met by 2027 at the latest. These include achieving a good groundwater condition (quantitative and qualitative), ensuring that the recharge and use of groundwater is in balance. However, the 'Research on water demand for nature 2020' already made clear that this balance is far from being achieved in Noord-Brabant. And for violation of the Habitat Directive, it only needs to be demonstrated that an activity is likely to have a significant negative impact on the state of a Natura 2000 area (or on the protected species living in it). This means that there is an urgent need to stop deterioration immediately and to stop the increasing imbalance between replenishment and use of groundwater reserves.
The report (in Dutch) entitled 'Dessication in Brabant, a European Law Perspective - a research commissioned by Brabantse Milieufederatie, Het Brabants Landschap, Natuurmonumenten en Staatsbosbeheer, carried out by Tilburg University and Utrecht University' was published in June 2021