Lauren Ballarini, technical director at Wardell Armstrong, discusses the EU Water Framework Directive – and how the UK will enforce standards post-Brexit
In 2000, the European Union issued a directive entitled 'Establishing a framework for community action in the field of water policy' – commonly known as the EU Water Framework Directive (WFD). In this directive, the UK government has a responsibility to ensure compliance with the WFD or face infraction proceedings. Within the planning process, this is achieved by water resources chapters within EIAs, which are reviewed by the Environment Agency as the statutory consultee.
A WFD Compliance Assessment might appear similar to an EIA Water Resources Assessment, but closer examination finds a few key differences. The WFD Compliance Assessment requires the water environment to be considered holistically, according to the WFD classification tests, and defines appropriate spatial and temporal scales for compliance assessment. Common EIA terms such as 'catchments' are replaced by 'water bodies', recognising the differences in extent and water residence time. EIA 'effects' are replaced by 'status deterioration', and 'significance' by 'confidence'. Integral to the assessment is the consideration of water quality and quantity, ecology and geomorphology as components of WFD status rather than, as is commonly seen in EIAs, as separate entities.
The principle of the WFD is to consider surface water and groundwater as renewable natural resources. Water bodies are delineated and characterised, and their status is classified and published in the River Basin Management Plan (RBMP) documents. The aim is for good qualitative, quantitative and ecological status to be achieved in each water body. Deterioration in status must also be prevented. For each water body, a series of tests are undertaken, which determine the overall classification of the water body. These tests differ for groundwater and surface water bodies. However, both tests follow a 'one out, all out' approach. If any of the tests find that the water body has poor status, then the overall classification of the water body is poor. A programme of improvement measures is then identified, and a timescale defined for implementing these improvements to restore good status.
Duration is an important consideration in WFD Compliance Assessment. The WFD operates on six-year cycles, so the construction phase of many shorter duration developments is less likely to affect WFD status. This focuses the WFD compliance assessment on the potential status risks posed by developments with longer term construction phases and the operational phase of all large developments.
While a development may not lead to effects on the water environment that require monitoring or mitigation under EIA regulation during a six-year period, a development could hinder WFD improvement measures designed to enable a water body to meet its WFD status objectives. Hindrance of a programme of measures would constitute non-compliance of the WFD Compliance Assessment. For example, if a development proposes a 10-year discharge at similar concentrations to background concentrations of the receiving water body, which is failing on grounds of chemical status, then the discharge could hinder improvements. Such non-compliance (or deterioration) can only be accepted under the WFD if a justification is published in the RBMP, eg for reasons of overriding public interest.
However, with the Brexit deadline looming, where does this leave water resource chapters and their associated WFD Compliance Assessment?
In 2018, the EU Withdrawal Act was passed with the aim of ensuring that all existing EU environmental law continues to operate in the UK, providing stakeholders with certainty as the UK leaves the EU. The problem with this is that the EU role as enforcer and starter of infraction proceedings is no longer relevant. To address this, the British government announced that it will bring forward its first environmental bill in more than 20 years, and as part of this a new, independent statutory body will be established to hold the government to account on environmental standards. Thus, the enforcer role will pass to this new independent body. Questions still remain as to how this will work in practice. As both the Environment Agency (which is the competent authority responsible for implementation of the WFD) and this new body (which will be responsible for issuing infraction fines) will be public bodies, will this be a case of the left hand imposing fines on the right hand?
Lauren Ballarini is technical director at Wardell Armstrong
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