Thought Starter: Member States Initiative on Implementation Issues Arising from 15 Years

DOC WD/2016-1/7

Thought starter: Member States initiative on implementation issues arising from 15 years of experience WFDas potential input for possible future improvement of water policy and/or the 2019 review of the WFD.

By Water Directors of: DE, UK, FR, BE-FL, BE-WAL, SE, ES, PL, SK, MT, NL

Date: May 2016

By Water Directors of: DE, UK, FR, BE-FL, BE-WAL, SE, ES, PL, SK, MT, NL

Introduction

Before and during the meeting of the Water Directors (WD) in Riga (May 2015) the review of the Water Framework Directive(WFD), in 2019, was informally discussed. A group of WD agreed upon the idea of taking a pro-active attitude in the coming debate, in line with the concept of co-ownership of the WFD. This was supported byseveralother delegations. The Member States (MS) involved prepared a thought starter for the WD meeting in Amsterdam(June 2016). The thought starter gives an overview of the issues that from the MS perspective are important to be addressed as regards possible future improvement of waterpolicy and in the run to the 2019 review of the WFD.

The work done during the first and the second cycle of the WFD provides a lot of experience on what went well and where difficulties have been encountered. The thought starteris based on these experiences and focuses on issues that are not covered bythe Common Implementation Strategy’s Work Programme (CIS WP) 2016-2018.
The WD are aware that the Commission (COM) is working on a stepwise approach for preparing the WFD review. The view of the WD involved in the initiative for a thought starteris to support the Commission in its attempt, by providing structured evidence from the implementation process. This would then form the basis for identifying those implementation problems which possibly need to be addressed by an eventual amendment of the legal requirements of the WFD,and those which can and should be addressed in other ways for a possible future improvement of waterpolicy.In this respect this document aims to develop a common understanding among MS on issues to be tackled, but does not already claim to provide possible solutions. This, as a follow-up, should be a joint effort by MS and COM.

As the one central point it is acknowledged by the MS involved in developing this paper that the core of the WFD, namely the environmental objectives of article 4, should remain untouched in their essence.Moreover, MS welcome the flexibilities already within the WFD and the fact that it takes account of proportionality and technical constraints. To ensure continuity in water policyit is obvious that not all issues that arise from the experiences and expectations of the implementation process can wait until 2019 to be tackled.This initiative shall prevent us from getting into a situation where the important issues need to be discussed under time constraintsand/ortoo late for the third cycle.
Approach

At first a list of possible issues was prepared with MS involved in the initiative.In the next step the issues were divided into issues that can/should be dealt with in the WP 2016-2018 and other issues that may be relevant. Only the latter remained and are addressed in this thought starter. The following seven issues have been identified:

What will be beyond 2027?
Communication on progress.
Public participation.
Cost recovery.
Chemicals.
Clever monitoring and integration with other directives.
Harmonisation of directives.

Issues 2. – 7. may feed into the process towards the review of the WFD in 2019, but the first one has highest urgency. It should be discussed how this first issue can be addressed on the short-term, nowMShave already started to work on the thirdriver basin management plans (RBMP's).

The issues were confirmed after the WMN Directors meeting in Luxembourg (November 2015) as the set to further elaborate. However, it is recognized that the list may change in the near future.

From December 2015 to mid-February 2016 the issues have beenfurther elaborated, based on input of several MS.Further discussion with involved MS in March,a final request for written comments to all WD’s and some textual updates, resulted in the present version,that is on the agenda of the WD meeting in Amsterdam (June 2016).

Identified Issues
1. What will be beyond 2027?

The most urgent issue is how weapproach the 3rd cycle of RBMP’s. MS want to avoid that the ambition of the WFD to reach good status/potential may dilute. Furthermore, new challenges in water quality are likely to arise and MS will need the WFD to tackle these also after 2027!

It is known that more time for reaching good status/potential in 2027 is allowed if ‘natural conditions’ are at stake (article 4.4.c WFD) or when objectives are related to new standards and /or substances under the Priority Substances Directive. However, for several other parameters (a)present knowledge may still be insufficient to determine all measures, (b) MS may not be able to take additional measures or measures will not take full effect before 2027 and (c)costs may be disproportionate when all necessary and remaining actions should be completed before 2027.

Ad a.Present knowledge may still be insufficient to determine all measures.
Despite all the work that has been done so far, MScurrently are not able to precisely define all measures needed to reach good status/potential. Occasionally this may be due to lack of appropriate monitoring data (see issue 6).

But even when there are many observations, there may be severe uncertainties in the relation between (multiple) pressures - status - measures. The DPSIR-approach is not a simple one-way process but it is in practice a cyclic,iterative and complex process. The effects of measures are monitored, which may lead to additional measures. The time may then be too short to finalize this for all parameters and for all water bodies before 2027.

Ad b.MS may not be able to take additional measures or measures will not take full effect before 2027. The lag between action and seeing the ecological effect may be 10 years or more, and ground water recovery times can run into many decades. The WFD recognises this and makes a provision with article 4.4.c.

Several substances are not emitted anymorebut they still occur widespread in the environment and meeting standards is a matter of further dilution in time. Some of these substances have been identified as ‘ubiquitous’ under the Priority Substances Directive. Other substances still pollute water bodies by diffuse sources because of slow corrosion of materials such as paint, clothing and wheels. Mercury is a well-known example of a substance that reaches water bodies by air and is emitted to air in- and outside the EU. Individual MS have limited possibilities to reduce emissions of these substances and necessary combined action on a European or global scale will likely take many years before objectives are met.It is unlikely that these examples fall within the scope of article 4.4.c.

Ad c.Preventing deterioration in waters is a major challenge in itself in the face of population growth, climate change etc. Costs may be disproportionate when all remaining actions should be finalized before 2027.Cost-effective solutions may depend on the effort that is put on diffuse sources vs additional end-of-pipe measures for point sources.

As an example, MS do not yet know the EU strategy on pharmaceuticals and the effect thereof.This hampersMS to give a complete picture of additional national measures.In some cases many measures have been taken but the costs of remaining measures may be too high to becompleted before 2027.

Especially, diffuse pollution (e.g. from agriculture or contaminated waterbeds) raises specific challenges as the level of uncertainty in defining both the problem and the solutions is high, which makes it more difficult to justify the potential costs against the benefits. Extending the use of WFD article 4.4 to allow extended deadlines beyond 2027 may help MS to maintain long term ambition and avoid the need to set less stringent objectives on grounds of disproportionate expense.

With the second RBMP’s finalized and their beginning implementation, MS already will be starting the preparation of the third RBMP’s. Therefore predictable discussions in MS are going to be started on the application of WFD article 4.5, less stringent objectives, as for many water status parameters no further phasing in time will be possible. This is clearly not the intention but it is extremely difficult to manage the national and transboundary processes as long as there is not an alternative.

However, at least a common and reliable understanding between MS and Commission is needed on what happens if a planning scope is used going beyond 2027 and extended deadlines are used when preparing the third RBMP’s. A solution for this issue should be prepared - starting now - and be effective before the second half of the 2nd cycle (2018). The current position of the Commission is that there will be no formal action on the Commissions working programme with regard to the WFD before 2017.

2. Communication on progress.

MS have finalized the RBMP’s for the 2nd cycle and are reporting the plans according to the obligations in article 15 WFD. In parallel the CIS Process 2013-2015 set-up the electronic reporting anew. One reason for this was that it has become obvious that a reliable and comparable broad dataset is needed to show efforts and achievements by MS. This resulted in a considerable burden for all parties and thus has to be evaluated carefully after completion of the reporting exercise to ensure future continuity.

To show detailed progress masked by the current provision of WFD a set of additional indicators to communicate progress towards good status was defined, intending to use data that may be provided when reporting 2nd cycle plans. In their meeting in Luxembourg the WDendorsed the document as a good basis for providing evidence of progress in the implementation of the WFD and towards reaching good status in all EU water bodies. They also agreed that the current document would need to be reviewed in light of the 2nd cycle reporting and the result of assessment of those indicators.

As it is a living document extending the scope of the document should be possible. It is suggested, that in the future also the presentation of exemptions may be improved. As an example, progress in the water quality is masked if an exemption of phased objectives is applied for a water body. It is a huge difference whether an exemption for a water body is based on one ubiquitous substance or on all biological quality elements, nutrients and several chemicals. Furthermore, uncertainties in the outcomes of the assessment could be addressed.

EEA presentations tends to focus only on the distance to good status, which can be misleading as this overlooks the use of exemptions which are integral to the operation of the directive.MS would like to see more balanced presentations by the Commission and the EEA and recognition that MS comparisons on crude indicators such as % GES are not meaningful. In addition furtherwork is also needed on indicators on pressures, measures and gaps to draw a complete picture.

3. Public participation.

Article 14 of the WFD prescribes the way active involvement of all interested parties in the implementation of the WFD shall be performed.For each RBMP (including its updates and reviews) the following documents needs to be published and made available for comments to the public, including users (year x referring to the year of adoption of the RBMP):

a)a timetable and work programme in year x-3

b)an overview of the significant water management issues x-2

c)draft copies of the RBMP’s x-1

For all these documents MS have to allow at least six months to comment in writing on these documents.

There is no doubt on the necessity and value of public involvement throughout the 6 year cycle, and there is no reason to question this. However experiences with the 2 first planning cycles revealed that the public is less interested than hoped for and the 3 public inquiries for 6 months area significant burden. This is in part due to the complexity of the issues and the challenges in communicating the vast amount of data and analysis in a helpful and meaningful way. The public seems to be overloaded with public inquiries and the public replies on the timetable and work programme are quite low compared to the public inquiry on the draft RBMP’s.

Thereforeit should be considered how the consultation of the public in the drafting process of the RBMP’s can be optimized. New ways of public participation, such as the use of social media and web based tools, are available now. MS should be allowed to havemore freedom to engage the public in the most appropriate way with respect the number of public inquiries as well as the period of the public consultation. A minimum period of6 weeks for the public inquiries may be more effective, leaving it up to the member states to extent this to for example 6 months.

Furthermore reference is made to issue 7, as also further alignment of public participation with other directives could be considered. In order to use the proposals for the 3th cycle, this issue should be addressed shortly. Otherwise, the proposals should be taken into account with point 1.
4. Cost recovery.
In general, taking into account the principle of cost recovery for water services as described in article 9 is a useful element of the WFD. Article 9 in connection with article 2.38 WFD lays down the obligation for MS to take account of the principle of cost recovery for water services. In the light of CURIA ruling C-525/12 MS would benefit from a common understanding of the scope of water services.

In this connection there are also inconsistencies within article 9 with regard to the relation of water uses and water services. In particular if only water provision and waste water treatment are deemed water services the current provision of article 9.1 second indent (contribution of the different water uses to the recovery of the costs of water services) needs to be adapted – for example, replacing ‘an adequate contribution of the different water uses’ with ‘an adequate contribution from the different users of water services’. A better common understanding of the exemption provided, in particular in article 9.4 (not ensuring adequate incentives and contributions where this does not compromise the purposes and the achievement of the objectives of the WFD), would also be welcome.

5. Chemicals

The distinction between (river basin specific) chemical pollutants being a part of the Ecological Status and the Priority Substances and certain other pollutants being a part of the Chemical Status sometimes leads to confusion.

Adaptationof the list of Priority Substances is necessary to face new water quality problems, butadding substances and standards to the list of Priority Substances or changing standards for substances already on the list leading toobjectives that should be met in different years[1] is also confusing and obstruct to keep track of the improvement of the Chemical Status over time.

For new chemical pollutants under the Ecological Status no extension of deadlines is allowed beyond 2027. If MS in RBMP-3 want to add a new specific substance to tackle a new water quality problem, only the exemption of less stringent objectives (article 4.5 WFD) can be applied if measures to meet the standard in one cycle are not available. In practice, this is a disincentive as MS will not add new chemical pollutants as specific pollutants.

MS welcome the initiative of the Commission for a strategy on pharmaceuticals and comparable other initiatives (An EU action plan for the Circular Economy; COM(2015) 614 final). The current practice of the development of a strategy on pharmaceuticals exemplifies the difficulties to find an optimal approach for new chemicals. As it is clear that apart from measures at the national level also measures on a EU or global level might be necessary, close cooperation with EU and UN is necessary (Industrial Emission Directive, REACH, Minamata convention on mercury, Biocides and Pesticides Regulation, Clean air for Europe……).

The low levels for the derivedEQS for some of the Priority Substances, the development of analytical methods and corresponding monitoring efforts are often driven by scientific rather than practical considerations and are therefore more time and money consuming than needed. It might be valuable to choose carefully some representative indicator parameters to reduce analysis and even cover a broader spectrum of possible contaminants.

6. Clever monitoring and integration with other directives.

In general, there is a need to clarify the link between WFD and other directives concerning monitoring. For instance in Directive 2008/105/EG there are requirements for monitoring of trends of priority substance in biota and sediment. Is this a part of surveillance or operational monitoring, both or none? This has implications for the number of water bodies to be included in the monitoring. Under Directive 92/43/EEG (Habitat Directive) only the favourable and unfavourable status are required. The correlation between the favourable status of species and good status of water bodies is still unclear.

There is also a need to clarify the link to Directive 98/83/EC (Drinking water directive). The Nitrate Directive requires the assessment of eutrophication. The relationbetween eutrophication and good ecological status/potential could be clarified. Different assessment systems can lead to dissonance of assessment of WBs status or at least to communication problems with stakeholders.

The ongoing work within the Commission on a fitness check of environmental monitoring and reporting may shed new light on how well EU and MS regulation combines to help protect the environment.

Further research is needed on how to deal with climate change when designing monitoring programs for ground- and surface water.Other recommendations can be made on the introduction of new techniques. Finally, there are still questions on for example monitoring in protected areas, in artificial and heavily modified water bodies and basic parameters for monitoring groundwater. These issues may also be elaborated under WP 2016- 2018.

Harmonization of directives.

In general, MS support the REFIT programme, including the new initiative on reporting. Directives stem from different moments in time and were developed with the knowledge and insights available at that particular time. Work to harmonize the WFD, Flood Directive and Marine Strategy Framework Directive(MSFD) as far as possible should continue. There are also some issues with integration/harmonization between WFD and the Groundwater Directive where clarification would be useful.