Eyes on the horizon: Water authorities and the WFD targets for 2027
Research commissioned by the Brabant Water Authority Association
How should water authorities deal with the legal risks and dilemmas involved in meeting the objectives of the European Water Framework Directive (WFD) on time? Researchers Frank Groothuijse and Marleen van Rijswick – affiliated with the Utrecht Centre for Water, Oceans and Sustainability Law (UCWOSL) – were commissioned by the four water authorities in the province Noord-Brabant to map out their options for complying with the Directive. Their report, titled Closer to the Wind, contains numerous recommendations that provide the water authorities with a framework to translate the sense of urgency into targeted actions. The researchers identify tension existing between, on the one hand, the policy freedom of water authorities to take those measures that are politically and administratively feasible and desirable, and, on the other, the fact that water authorities are legally liable if they fail to comply with the WFD.
The objective of the WFD is that by 2027, the quality of all waters (surface water and groundwater) throughout Europe must be in order, both chemically and ecologically. The water authorities manage the regional water bodies covered by the WFD. The provinces determine which quality targets the water must meet and may invoke exceptional provisions in the WFD. Noord-Brabant is divided over four water authorities, all located within the Meuse catchment area, who together commisioned the advisory report.
Water authorities' own responsibility
In their report, Groothuijse and Van Rijswick set out the systematics of EU law and the WFD and identify the potential risks for water authorities in implementing the WFD. Water boards have their own responsibility in implementing the WFD and cannot suffice with just following Dutch law. This is because the WFD can be stricter than national laws and regulations (for example, in terms of interpreting the WFD requirement that there must be 'no deterioration' in water quality) and this can provide a legal basis for private individuals to go to court – already a familiar scenario played out in the case of nitrogen emissions, as evidenced by the many lawsuits filed by environmental group Mobilisation for the Environment. Recommendation is therefore to ensure sufficient knowledge within the water authorities about the WFD and the consequences of European law obligations.
Pushing boundaries no longer an option
Another legal risk concerns the designation of 'heavily modified and artificial surface waters', which (under European law) require less stringent ecological requirements. As 2027 approaches, there is a risk of pushing the boundaries, both in designating water bodies and in setting the corresponding quality requirements. One recommendation is to, at least, properly (legally) substantiate designations which were made on the basis of historically extensive agricultural use of surrounding lands.
Also, the water authorities cannot blindly trust that the national government and other authorities will do their part in meeting the WFD targets on time. The recommendation is therefore that water authorities make clear which measures they themselves, within their own powers, will take, and in addition which other authorities must assume their responsibilities, to jointly enable the achievement of the WFD targets. Recommendation is to record all the agreements reached between the parties involved.
From voluntary measures to close monitoring and enforcement
The study shows that water authorities still rely heavily on voluntary measures, and that they sometimes rely heavily on the cooperation of landowners for measures implemented by the water authorities themselves. Only recently has more attention been paid to intensifying core tasks such as licensing, supervision and enforcement, the researchers write. Also, water authorities still do not sufficiently use their right to give (binding) advice. Furthermore, water quality monitoring should be better used to tackle causes and causers of pollution.
The recommendations include reviewing whether existing permits are still adequate or may need to be tightened up. Furthermore, to list all groundwater wells (including smaller ones) and possibly impose additional requirements on them. With regard to discharges from the public sewer system to the sewage treatment plants, water authorities can make better use of their advisory right, and possibly require additional permits. In anticipation of the Dutch Environment Act (which will remove the binding advisory right), the researchers suggest that more general rules on this matter could also be laid down in the water authorities' regulations. And finally, water authorities should keep a close watch on the case law of the European Court of Justice, for instance to be able to incorporate subsequent (additional) requirements for the protection of drinking water sources in existing permissions.
Time for clear choices and closer cooperation
A clear message from the report is that, with little time left to meet WFD obligations, it is recommended to make clear choices within the mix of possible mandatory and voluntary measures. Because if voluntary measures do not produce the desired results in time, this will be under the water authorities' responsibility, Groothuijse and Van Rijswick write. They advocate more consultation between the Brabant water authorities on developing joint policies for tightening (or even withdrawing) permits and introducing additional regulations in the form of tailor-made rules or general rules in their own water authority regulations.
They also advocate the joint development of an assessment framework for permits for activities that may affect the ecological quality of so-called 'other waters' – all smaller watercourses that do not have to meet WFD requirements directly, but still form part of the same water system. More cooperation will also promote legal certainty and legal unity within the Meuse river basin to which the water authorities belong. And finally, it is important that the water authorities themselves invest in cross-border coordination and cooperation with foreign regional and local authorities, because ultimately, Noord-Brabant is also heavily dependent on their water policy.
Read the report Closer to the wind here (in Dutch):