Revision of the GES Decision 2010/477/EU

[Type text][Type text]GES-10/2013/6

Marine Strategy Framework Directive (MSFD)
Common Implementation Strategy
10th meeting of the Working Group on Good Environmental Status (WG GES)
21 October 2013, 9.30-18:00
22 October 2013, 9:00-10.15
Conference Centre Albert Borschette, Rue Froissart 36, 1040 Brussels, room 2A
Agenda Item: / 6b
Document: / GES 10/2013/06b
Title: / Review of the GES Decision 2010/477/EU and MSFD Annex III
Prepared by: / DG Environment and GES Drafting Group
Date prepared: / 04/10/2013

WG GES is invited to:

-Take note and discuss the draft document on the review.

-Approve the document to be forwarded to the MSFD Committee as a basis for preparing the review.

Reviewof the GES Decision 2010/477/EU and MSFD Annex III

Approach and outline for the process

Document for WG GES

(draft version04/10/13)

Introduction

The review and possible revision of the GES Decision (Commission Decision on criteria and methodological standards on good environmental status of marine waters (2010/477/EU)) and of MSFD Annex III was discussed at the MSFD Committee in February 2013 (see document Committee/6/2013/3, see Annex 3) and the DG GES has received a mandate to analyse the possible elements that could be amended and provide input to a discussion at the WG GES which ultimately was asked to advice the MSFD Committee atits next meeting in November 2013.

Following discussionsin the DG GES, this document outlines the approach and process recommended for the review and potential revision of both the Decision and MSFD Annex III and aims at agreeing the practicalities for the preparatory work.

Objective

The review of the Decision will be one element of a package together with technical clarifications on the application of the Decision and the further development of the Common Understanding document to overcome the shortcomings identified by the Commission's Art. 12 assessment and prepare for the next cycle of reporting in 2018. The review of the Decision should take place in conjunction with a review of MSFD Annex III to clarify their roles and inter-relationships (see Figure 1).

To start with, it would be useful to agree on the purpose and the objective of the revision. Preliminary findings of the Article 12 assessment of the Commission indicated that MS have implemented the provisions of Article 9 “Determination of good environmental status” in a very different way and that one of the overriding objectives of the MSFD, the comparability and coherence of GES (assessments) has not been achieved to date. In addition, the current Decision is ambitious and complex but at the same time unclear in parts or leaves too much room for interpretation. This does not lead to an effective and coherent approach towards achieving the MSFD objectives. Furthermore, the current Decision does not make communication of GES an easy task. Finally, there have been significant developments and advanceson methods or approaches for certain descriptors since the Decision was adopted in 2010.

At this stage of the process, it is proposed to embark on the exercise with the following objective (which will be ultimately discussed and agreed at the MSFD Committee):

“The review and possible revision of the GES Decision shall aim at a clearer, simpler, more concise, more coherent and comparable set of GES criteria and methodological standards. It shall include, where relevant for certain descriptors, in accordance with Article 3.5, a marine region-specific set of criteria and methodological standards based on the work of the Regional Sea Conventions (RSCs). It shall also clarify and harmonise terminology and, by amending, where necessary, MSFD Annex III, ensure greater consistency between MSFD Annex I and Annex III as well as introduce elements of assessment and monitoring (and methodological standards) which, in accordance withArticle 11.4, are not yet covered and can help improve coherence and comparability. Finally, it shall ensure that existing criteria set out in relevant EU legislation are specified more explicitly as minimum requirements in order to further improve consistency and streamlining between different pieces of EU legislation, includingthe WFD, Birds and Habitats Directives and CFP. All this shall be based on the latest available science and, where a scientific foundation is not fully available, the precautionary principle and aim at being the basis for the revision of the national/regional GES determinations and environmental targets in 2018.”

Approach

Based on the above objectives, the reviewcould be approached in the following way:

1. Articulate roles and relationships: Annex I, Annex III, Decision, Art 9 characteristics,

Decision review

1. Part A and B of the Decision should be reviewed, addressing in particular the following issues:
2. clarifying some terms,
3. eliminating text which is explanatory (and use it instead in a supporting guidance document or the recitals),
4. reviewing the criteria and indicators with the view to streamlining the approach amongst descriptors, where possible,
5. reflecting on the use of the term "indicator" with the view to ensuring clarity between Article 9 and 10 and the work in the RSCs.

This exercise should be driven by the lessons learnt in the implementation process so far and RSC work, and should focus on management needs.

1. Introduce new elements such as methodological standards, if available (based on Article 9.3) and minimum requirements or general rules for monitoring, assessment including aggregation and scale issues(as much as possible on the basis of Article 11.4) building on CIS and RSC work.
2. Clarify the relationship to criteria set by other legislation, in particular for descriptors D5, D8 and D9 (and partly D2 (if and when EU proposal is available), D3, D6 and D7). Also the relationship to the Habitats Directive for D1, D4 and D6 should be further investigated.
3. Introduce the possibility for ecosystem-specific (i.e. (sub) region-specific) GES criteriaand methodological standards (i.e. specific for Baltic, North Sea, Mediterranean, etc) linked to regions or subregions and based on agreed or ongoing work in the RSCs. This applies only for those descriptors which, in accordance to Art. 3.5, are likely or essential to require an ecosystem differentiation, e.g. different list of priority species or habitats (mainly D1, D2, D4, D6 and possibly D3 and D5).
4. Combine / integrate criteria and other elements for descriptors, where this is possible, most likely D8/D9 and ecosystem-descriptors D1, D4, D6 (and partially D3, D7) – see also Annex VI of GES Common Understanding document.
5. Explain/specify how to deal with ecological/biological/chemical elements which are addressed under different descriptors (e.g. phytoplankton under D1, D4, D5; fisheries effects under D1, D4 and D6, contaminants under D1 and D4 and D8; marine littereffects under D1, D2, D8 and D10, noise under D1 and D11). How do we interrelate the pressure-related descriptorsto the others?
6. Specify, where possible, GES criteria which are expressed as quantitative GES boundaries and where not, as normative definitions for boundaries.

To illustrate how this could look like and what this would result in, there is an illustrative example for D8 and D9 in Annex 1. A template and a detailed work process will be developed as a next step following the MSFD Committee discussion.

Annex III review

1. Define role of Annex III:
2. Elements for assessment (Art. 8) with regard to GES (Art 9)
3. Elements for monitoring (Art 11) - complimentary to assessment (e.g. temperature, salinity)
4. Define whether the elements are Indicative or complete (as relevant to MS waters) and whether generic or specific (e.g. 'hazardous substances' or 'specified list of Priority substances')
5. Content of Tables 1 and 2

1. Distinguish State and Pressure lists (e.g. chemicals, NIS from Table 1 as pressures)
2. Define need for current 'additional' texts, and need for some elements (e.g. features and characteristics) or new elements
3. Define relationship to art 8, 9, and 10

1. Consider need for a Table of human activities, to provide a framework for Art. 8.1c and for monitoring (Art. 11)

Process, timeline, task manager, results

On the basis of the above mentioned approach, the revision could be organised in three phases:

Review and then decision on revision

• Phase 1 (end 2013 – end 2014): technical and scientific review

Following the discussions in the Committee, preparations would start at technical level. A systematicanalysis of the current GES Decision would be carried out reviewing all parts of the Decision. This analysis would assess whether a revision for a particular part is necessary, whether it is possible and what the latest scientific and other developments are (e.g. in the RSC, research projects) building on the work of the ICES/JRC Task Groups from 2008-2010.

Provided a need for a revision is identified, the different elements above are checked as to whether they apply in this particular case. This exercise would be linked to the possible revision of Annex III, as appropriate.

The Commission (ENV, JRC) andin association with ICES will organiseand steer the process.

The WG GES (supported by the DG GES) will be the forum to oversee the organisation and planning of the technical review phase. Through the WG GES, MS will be consulted and involved.

The review perdescriptorwill bepreparedby a number of lead experts coming from the respective CIS or RSC groups (see table). The lead experts will coordinate their work with each other and with the DG GES process, which will be facilitated by the Commission and in association with ICES. The DG GES meetings can be used carry out such coordination.

The draft documents and proposals will be presented to the different EU (CIS) groups for different descriptors and relevant expert groups in the RSCs for expert input and peer review before being consolidated by WG GES (see list enclosed).

The technical phase will result in recommendations for revisionwhich identify a concrete draft text with changes and the rational for these changes. The exercise would be complemented by supplementary technical background information, as necessary. Products – decision,technical explanations and CommonUnderstanding guidance

• Phase 2 (end 2014 – mid-2015): consultation and discussion

The results of the technical reviewwill be discussed in the Committee and the MSCG with the view to identifying additional technical work and input that is needed as well as ensuring the necessary information is available to allow making a decision on the revision.

• Phase 3 (until end 2015): Decision making

The relevant decision-making procedure (at the moment, Committee procedure) will be carried out, in accordance with the procedures and the timetable agreed, in 2014.

Conclusion and next steps

Provided the Article 12 report identifies that the revision of the GES would be an important mechanism to improve coherence and clarify understanding and comparability of GES, the revision process could be conducted along the lines outlined above. As a first step, a technical phase would prepare the necessary background for the revision without prejudging the final results. The WG GES (supported by the DG GES) will play an important role in this technical part of the process.

The pursued these suggestions further, the following next steps are envisaged at the moment:

21Oct 2013: WG GES discussion of the document and preparation of the Committee

12 or 13Nov 2013: MSFD Committee

Dec 2013/ Jan 2014: DG GES launching of the technical phase

Annex 1

Possible approach to amend Decision 2010/477/EC

Outline for a template and example for D8/D9

Title of Descriptor

Illustrative example: Good Environmental Status for Descriptor 8: Concentrations of contaminants are at levels not giving rise to pollution effects and Descriptor 9: Contaminants in fish and other seafood for human consumption do not exceed levels established by Community legislation or other relevant standards

Approach / Normative definition

Both descriptors could be combined under the following description which applies existing EU legislation approaches:

Illustrative example: Concentrations of contaminants (individual pollutants or groups of pollutants) are at levels below that presenting a significant risk to or via the marine environment

GES criteria (in accordance with Art. 9.3)

Illustrative example:
"Member States shall apply, as a minimum, the following criteria:

Criteria 8.1: Concentrations of contaminants listed in Directive 2008/105/EC as amended by Directive 2013/39/EU (and subsequent amendments) and Commission Regulation (EC) No 1881/2006 as last amended by Regulation (EU) No. 219/2012 (seafood) in marine waters, except coastal and territorial waters, do not exceed Environmental Quality Standards set out in Directive 2008/105/EC as amended by 2013/39/EU (and subsequent amendments) and the maximum levels set by Commission Regulation (EC) No 1881/2006 as last amended by Regulation (EU) No. 219/2012 (seafood)."

[Explanations on matrix (where EQS are not set for a certain matrix, MS may set such standards) and on relationship between seafood and EQS standards including location of sampling]

Criteria 8.2: Concentrations of other contaminants in marine waters, such as hydrocarbons (including those causing significant acute pollution events e.g. slicks from oil and oil products), radioactive substances or other marine-specific pollutants posing a risk to or via the marine environment, do not exceed levels set out by the Regional Sea Conventions, where available.

[to be discussed: should we cover other contamination such as microbiological and where would ecotoxocological effects (eg imposex) be covered?]

GES methodological standards (in accordance with Art. 9.3)

Illustrative example:

• Member States shall ensure quality assurance and control by applying Commission Directive 2009/90/EC.
• Member States shall use the relevant ISO and CEN standards for contaminants assessed under criteria 8.1 and 8.2. Such available standards are listed in [xxx]. Where such standards are not available, respective guidelines or specifications described by the Regional Sea Conventions shall be used.

Standardised methods for monitoring for comparability (in accordance with Art. 11.4)

Illustrative example:

Provided there is a significant risk to or via the marine environment, Member States shall, when monitoring, apply at least:

• a minimum density of monitoring of [xstations per x km2];
• a minimum frequency of monitoring of [x samples per year];
• the most appropriate matrix (water, sediment or biota) is used for monitoring;
• that the location of the harvesting of seafood assessed under Regulation [xxx] is recorded as a sampling location for the purpose of Directive 2008/56/EC;
• [others]

Standardised methods for assessment for comparability (in accordance with Art. 11.4GES)

Illustrative example:

When assessing, Member States shall ensure, as a minimum, that:

[example for aggregation rules]

• levels of contaminants are aggregated at a given monitoring station / location as an annual average (unless they are caused by an acute pollution event);
• levels of contaminants are aggregated for all monitoring stations / locations [minimum number of stations per area] within a national part of a marine region and, where they exist, sub-region as [xxx]-Percentile.

Member States may introduce assessment areas (sub-divisions) within marine (sub-) regions and apply this assessment for these assessment areas. The result for a given marine (sub-)region shall be presented as a percentage meeting (or not) GES using the share of the assessment area as a basis.

Rational and technical background for proposed revision

Other related products (e.g. technical guidance, reference in common understanding document)

Reference Documents

Current Decision:

Descriptor 8: Concentrations of contaminants are at levels not giving rise to pollution effects.

The concentration of contaminants in the marine environment and their effects need to be assessed taking into account the impacts and threats to the ecosystem ( 20 ). Relevant provisions of Directive 2000/60/EC in territorial and/or coastal waters have to be taken into consideration to ensure proper coordination of the implementation of the two legal frameworks, having also regard to the information and knowledge gathered and approaches developed in regional sea conventions. The Member States have to consider the substances or groups of substances, where relevant for the marine environment, that:

(i) exceed the relevant Environmental Quality Standards set out pursuant to Article 2(35) and Annex V to Directive 2000/60/EC in coastal or territorial waters adjacent to the marine region or sub-region, be it in water, sediment and biota; and/or

(ii) are listed as priority substances in Annex X to Directive 2000/60/EC and further regulated in Directive 2008/105/EC, which are discharged into the concerned marine region, sub-region or subdivision; and/or

(iii) are contaminants and their total releases (including losses, discharges or emissions) may entail significant risks to the marine environment from past and present pollution in the marine region, sub-region or subdivision concerned, including as a consequence of acute pollution events following incidents involving for instance hazardous and noxious substances.

Progress towards good environmental status will depend on whether pollution is progressively being phased out, i.e. the presence of contaminants in the marine environment and their biological effects are kept within acceptable limits, so as to ensure that there are no significant impacts on or risk to the marine environment.

8.1. Concentration of contaminants

— Concentration of the contaminants mentioned above, measured in the relevant matrix (such as biota, sediment and water) in a way that ensures comparability with the assessments under Directive 2000/60/EC (8.1.1)

8.2. Effects of contaminants

— Levels of pollution effects on the ecosystem components concerned, having regard to the selected biological processes and taxonomic groups where a cause/effect relationship has been established and needs to be monitored (8.2.1)

— Occurrence, origin (where possible), extent of significant acute pollution events (e.g. slicks from oil and oil products) and their impact on biota physically affected by this pollution (8.2.2).

Descriptor 9: Contaminants in fish and other seafood for human consumption do not exceed levels established by Community legislation or other relevant standards.EN 2.9.2010 Official Journal of the European Union L 232/23

( 20 ) See points 3 and 4 in Part A.

In the different regions or sub-regions, Member States need to monitor in edible tissues (muscle, liver, roe, flesh, soft parts as appropriate) of fish, crustaceans, molluscs and echinoderms, as well as seaweed, caught or harvested in the wild, the possible presence of substances for which maximum levels are established at European, regional, or national level for products destined to human consumption.

9.1. Levels, number and frequency of contaminants

— Actual levels of contaminants that have been detected and number of contaminants which have exceeded maximum regulatory levels (9.1.1)