Water Framework Directive (Directive 2000/60/EC)
Entry into force: 22 December 2000 (OJ L 327 of 22.12.2000)
Deadline for transposition by Member States: 22 December 2003
What are the aims and requirements of the Directive?
The Water Framework Directive (WFD) is overarching legislation that will eventually replace a number of existing EC directives on water. It also provides for more specific "daughter" directives on priority substances and groundwater protection, as well as for Commission strategies on pollution control (Articles 16 and 17). Article 1 sets out the objectives of the WFD:
to prevent deterioration and protect and enhance the status of aquatic ecosystems, as well as the terrestrial ecosystems and wetlands that depend upon them;
to promote sustainable water use;
to enhance protection of the aquatic environment through the reduction or phasing-out of discharges, emissions and losses of priority substances and hazardous substances;
to reduce and prevent further pollution of groundwater;
to contribute to mitigating the effects of floods and droughts;
The core requirement of the WFD is that Member States aim to achieve good ecological and chemical status for bodies of water under their jurisdiction by the end of 2015 (Article 4). In pursuit of this goal, the Directive sets out a series of procedural and substantive measures that Member States must incorporate into their planning and water management systems. It also provides supplementary measures on water pricing, drinking water, groundwater and pollution control strategies.
Definitions and scope of the Directive
The Directive applies to all inland surface waters, transitional waters, coastal waters and groundwater (Article 1). Coastal water means the surface water up to a distance of one nautical mile from the coastline (Article 2(7)); transitional waters are those in the vicinity of river mouths (Article 2(6)). In respect of chemical status, the scope of the WFD also includes territorial waters, which are 12 nautical miles from the coastal baseline (Article 2(1)).
Pollution in the Directive is broadly defined as 'the direct or indirect introduction, as a result of human activity, of substances or heat into the air, water or land which may be harmful to human health or the quality of aquatic ecosystems or terrestrial ecosystems directly depending on aquatic ecosystems, which result in damage to material property, or which impair or interfere with amenities and other legitimate uses of the environment' (Article 2(33)). Some model examples of pollutants are listed in Annex VIII.
Member State obligations under the Directive
The primary duty upon Member States are the environmental objectives set out in Article 4. The obligations vary slightly for the three types of water body covered: surface waters, groundwater and protected areas.
For surface waters, Member States must: implement measures to prevent deterioration of the status of surface waters; protect, enhance and restore all bodies of such water with the aim of achieving 'good surface water status' by 2015; and implement measures with the aim of progressively reducing or phasing out pollution from priority substances. 'Good surface water status' is defined as a situation where both the ecological and chemical status of the water are classified as at least 'good' (Article 2(18)).
For groundwater, the obligations are stronger: Member States must aim to achieve 'good groundwater status' (defined as a situation where both the quantitative and the chemical status of the water are classified as at least 'good' (Article 2(20)) and prevent its deterioration, and also take measures to prevent or limit all inputs of pollutants and reverse upward pollutant trends.
For protected areas, such as those designated under EU directives on bathing water and habitats Member States must establish registers of all such areas lying within each river basin district. In this context, it is unclear whether 'good ecological status' would go any further than the existing objective in Article 6(3) of the Habitats Directive (92/43/EEC) for 'favourable conservation status'.
There are a number of exceptions to the obligations in Article 4. Where surface water is designated as artificial or heavily modified, the environmental aim is reduced from 'good surface water status' to 'good ecological potential and good surface water chemical status'. Similarly, Member States may aim for less stringent environmental objectives where "the achievement of these objectives would be infeasible or disproportionately expensive", provided there is no better environmental option and no further deterioration of the body of water. Further exceptions allow for temporary deterioration for unforeseeable force majeure events, and lower standards or deterioration of the status of a body of water in some circumstances as a result of physical modifications or new sustainable human activities.
The WFD mandates a schedule of actions that Member States must take in pursuit of the environmental objective, as set out below.
by 2003, designation of responsible authorities (Article 3)
by 2004, analysis of the characteristics of human impacts upon and economics of water use for each river basin district (Article 5)
by 2006, operational monitoring programmes for surface waters and groundwaters (Article 8)
by 2009, finalisation and publishing of river river basin management plans for each river basin district (Article 13)
by 2009, establishment of a programme of measures for each river basin district (Article 11)
by 2012, operation of programmes of measures
The WFD mandates a minimum set of 'basic' measures which must be included in each programme, in addition to 'supplementary' measures (some suggestions for which are made in Part B of Annex VI). Among other things, the "basic" measures include controls over water abstraction, regulation of point source discharges liable to cause pollution, controls over diffuse sources of pollution and a prohibition on direct discharges of pollutants into groundwater (subject to certain exceptions) (Article 11(3)(j)).
Implementation
Some Member States have had difficulties implementing provisions of the Directive, despite a 'Common Implementation Strategy' designed to foster cooperation among the various national authorities and the European Commission. A Commission working document of March 2007 (SEC(2007) 362) noted in particular the insufficiency of reporting obligations on the status of water bodies. In the results thus far obtained, 40% of surface water bodies were identified as being at risk (although data was inconclusive for a further 30%). For groundwater, the assessments identified 30% of water bodies as at risk (with insufficient data for 45%).
Key legal issues concerning CCS
CO2 is not expressly included in the Annex VIII list of main pollutants. However, that list is only indicative and CO2 could still be classified as a pollutant under the WFD under the more general definition given in Article 2 (31) ('... any substance liable to cause pollution ...'). If so its direct discharge into bodies of groundwater for storage would be prohibited by Article 11(3)(j).
With that in mind, Article 32 of the Directive on the geological storage of carbon dioxide (2009/31/EC) (CCS Directive) provides an additional exception to the prohibition in Article 11(3)(j), which allows Member States to authorise injection of carbon dioxide streams for storage purposes into geological formations which 'for natural reasons are permanently unsuitable for other purposes'. This must be done in accordance with the terms of the CCS Directive (see CCS Directive section).
The exception is also qualified by the provision (in the last paragraph of Article 11(3)(j)) that CO2 injection and storage does 'not compromise the achievement of the environmental objectives established for that body of groundwater.'
The exception is also qualified by the provision (in the last paragraph of Article 11(3)(j)) that CO2 injection and storage does 'not compromise the achievement of the environmental objectives established for that body of groundwater.'
Exemptions from the strictest WFD objectives that may be relevant to CCS activities are as follows:
Lower standards may be set where a body of water is so affected by human activity that the achievement of the objectives would be infeasible or disproportionately expensive. In this case, the environmental and socioeconomic needs served by the activity must not be achievable by other means, reasons must be given for the derogation and the highest possible standard maintained (Article 4(5)). This may apply to port areas from where CO2 would be shipped or piped and sites previously developed for oil or gas extraction.
Failure to achieve good groundwater status or prevent deterioration of a body of groundwater may be allowed where it results from alterations in the level of bodies of groundwater (Article 4(7)). Although potentially applicable to CCS activities, which could displace groundwater in geologic acquifers, this provision is more pertinent to measures regulating water supply and management for human use, so may not be relevant to CO2 storage.
The marine scope of the WFD is 12 nautical miles from the coast for surface waters only; hence it would not apply to sub-sea aquifers beyond that distance, such as those proposed for CO2 storage in the North Sea.