Version no.:5.2Part A (discussed at SCG meeting 07/11/07, incl.editorial changes)
Date: 19-11-07
Author(s):DG Environment (D.2) + Drafting Group
Background:
At their meeting in December 2006 in Finland, the Water Directors endorsed a mandate for the Drafting Group on Environmental Objectives and Exemptions for the period 2007-2009. The main activity of the Drafting Group for 2007 is to provide common understanding of Articles 4.4, 4.5 and 4.6 of the Water Framework Directive.
The Drafting Group held several meetings and at their meeting in June 2007 in Dresden, the Water Directors discussed the progress of the Drafting Group and agreed the key messages in the document presented to them, and they discussed the issue of ability to pay. The agreed key messages and the discussions on ability to pay were the basis for further work and discussions of the Drafting Group after summer. Version 5.0 of the draft paper was presented to the SCG at their meeting on 07/11/07. Besides the draft paper, existing of Part A and Part B, a separate discussion document was prepared for the SCG dealing with the issue of distributional consequences. Annex III (prolonged droughts) and Annex IV (costs and benefits) werealso added to this version 5.0 and discussed at the SCG.
During the SCG meeting of 07/11/07 version 5.1 was drafted on the basis of comments made at the meeting. The SCG agreed on the version 5.1 including the clear identification of the 4 remaining open points in this version 5.1 (one in Part A and three in Part B).
For Annex III on prolonged droughts, the SCG appreciated the draft as a good starting point for discussion and decided to ask the Expert Network on Water Scarcity and Drought to discuss and agree on the text at their meeting on 15/11/07.
Further to the comments after the SCG, in particular on Part B, it was decided to split the paper in part A and part B. The current version 5.2 of Part A only contains editorial changes compared to version 5.1. In addition, the final draft versions of the Annexes are included in particular Annex III on prolonged droughts where the changes agreed at the Expert Network Meeting are highlighted. The document Part A including Annexes should be mature enough to hold a final discussion and aim for endorsement at the Water Directors' meeting. For Part B, a separate status box and a discussion document will be circulated separately in order to discuss on the level of agreement and the best way forward.
Status of agreement/open points:
The Annex III on prolonged droughts was discussed at the meeting of the Expert Network on Water Scarcity and Drought and some changes were suggested. They are highlighted in tracked changes in the included Annex. It is understood that most changes were to generally acceptable to all delegations of the Expert Network and they are therefore not identified as open points. There was one issue on the indicator parameters which could not be agreed.
For Part A, the only open point (regarding the common understanding of extreme floods) is highlighted in yellow (including the Member States that indicated at the SCG to have a different opinion on this point). All other changes were accepted at the SCG and are therefore not made explicit anymore.
Regarding the above-mentioned open points, some Member States commented that they intend to make new drafting suggestion. Also the Commission will aim at preparing
Compromise text for the open issues. Once available, these texts will be circulated separately. It is the aim to finalise part A and the ask Water Directors for endorsement with the view of publishing this part.
As a follow up, it is envisaged to consolidate all documents elaborated under the CIS process dealing with Article 4 (environmental objectives, Art. 4.7, exemptions (part A) and "disproportionality" (part B) into one comprehensive and concise guidance document on the application of Article 4 by the end of 2008.
Draft conclusions:
The Water Directors are requested to:
- Discuss and agree the identified open points in part A;
- Endorse the final draft Paper version 5.2 Part A, including all Annexes I, II, III, IV and V;
- Support the publication of the document on the public WFD CIRCA library;
- Invite the Drafting Group on Exemptions to continue its successful work by organising a workshop mainly focussing on case studies for the application of the exemptions;
- Invite the Drafting Group, as foreseen in their mandate, to prepare one comprehensive and concise guidance document on WFD objectives and exemptions by consolidating all existing documents dealing with Article 4 and incorporating the outcome of the case study workshop; This document should be presented to the Water Directors at their meeting in the end of 2008.
Common Implementation Strategy for the Water Framework Directive
DRAFT PAPER
Exemptions to the Environmental Objectives under the Water Framework Directive, Article 4(4), 4(5) and 4(6)
Version 5.2 – PART A
19-11-07
TABLE OF CONTENTS
INTRODUCTION
PART A- GENERAL QUESTIONS
1. General approaches for the use of the WFD articles 4(4), 4(5) and 4(6)
2. Questions of scale
3. Transparency and public support
4. Depth of the analysis
5. Transboundary context
6. Management of uncertainties
7. Technical infeasibility and considerations of alternatives
8. Link with Strategic Environmental Assessment and Environmental Impact Assessment
9. Applicability for protected areas
10. Common understanding of different terms
ANNEX I: DRAFTING GROUP MEMBERS
ANNEX II: EXEMPTIONS IN A TRANSBOUNDARY CONTEXT
ANNEX III: BACKGROUND INFORMATION ON PROLONGED DROUGHTS
ANNEX IV: BACKGROUND INFORMATION ON COSTS AND BENEFITS
ANNEX V: FURTHER INFORMATION EXCHANGE
INTRODUCTION
The first document on environmental objectives was endorsed at the June 2005 Water Directors’ meeting. In this paper, the general agreement is explained that socio-economic considerations should not be taken into account in defining surface water status or groundwater status. Socio-economic considerations should only be taken into account when deciding whether the exemptions for Water Framework Directive (WFD) Article 4 (§4, 5, 6 and 7) can be relied on. Therefore, the question of the sound implementation of those possibilities has become of increased importance.
The scope and key concepts of the provisions and conditions of Article 4(7) are given in the document on exemptions allowed for new modifications or new sustainable human development activities.The existing guidance documents on "economics and the environment" and "identification and designation of heavily modified and artificial water bodies" create also a common understanding of these key concepts. These and other useful documents are listed in the box below.
Box 1: CIS-background documents
-CIS Policy Paper: Environmental Objectives under the Water Framework Directive
-CIS Policy Paper: Exemptions to the environmental objectives under the Water Framework Directive allowed for new modifications or new sustainable human development activities (WFD Article 4.7)
-CIS Guidance document nr 1 –Economics and the environment- WATECO
-CIS Guidance document nr 4 – Identification and designation of heavily modified and artificial water bodies
-CIS Document Assessment of Environmental and Resource Costs in the Water Framework Directive
This paper intends to clarify key questions and important concepts when implementing the provisions of article 4(4), 4(5) and 4(6). General principles are explained, sometimes illustrated with examples. It is however difficult to give concrete and widely applicable examples at this stage of the WFD implementation. As experience with the application of exemptions grows in the preparation of the river basin management plans, more examples will be shared through the CIS process from 2008 onwards. Part A of this paper addresses general key issues, whilst part B is focused on issues related to disproportionate costs.
This paper aims at ensuring adequate comparability between Member States' approaches and at providing useful and practical information to Member States’ water managers, stakeholders and NGOs, and interested citizens. This paper is drafted by an informal drafting group of MemberState representatives, stakeholders and NGOs[1].
For a proper application of the exemptions to the environmental objectives of the Water Framework Directive, it is of key importance that the decision-making process is transparent for all stakeholders. This not only includes informing decision-makers on all costs and benefits, but also making this information available to the wider public.
When reference is made to ‘Good Ecological Status’ in this paper, as referred to in 4.4.1(a)(ii), for artificial and heavily modified water bodies ‘Good Ecological Potential’ is also included. Moreover, one should not forget that Article 4.8 and 4.9 of the WFD apply when discussing exemptions. These articles request that the application of article 4.4, 4.5 and 4.6 does not permanently exclude or compromise the achievement of the WFD objectives in other bodies of water within the same river basin district and that it is consistent with the implementation of other Community environmental legislation. Furthermore, steps must be taken to ensure that the application of the exemptions guarantees the same level of protection as the existing Community legislation.
PART A- GENERAL QUESTIONS
1. General approaches for the use of the WFD articles 4(4), 4(5) and 4(6)
The agreed document on environmental objectives has clarified issues related to the place in the planning process of article 4.4 (extension of deadlines) and article 4.5 (less stringent objectives). Below, these issues are elaborated further, also including article 4.6.
First of all, it should be kept in mind that the WFD is an environmental directive and exempting from its objectives should not be the rule but exceptional. At the same time one should not forget that exemptions are an integral part of the environmental objectives set out in Article 4 and the planning process, as already stated in the document on environmental objectives. The exemptions are likely to be more commonly used in the first planning cycle than in subsequent planning cycles as improvements to the status of water bodies are delivered through the planning process.
In addition, before considering the application of exemptions for a certain water body, all relevant requirements from existing EU legislation for the protection of water have to be fulfilled.
The relationship between exemptions is not a hierarchy in thesense that Member States must prove that one is ruled out before considering another. Member States are free to apply either exemption, provided the relevant exemption tests are met.However, the conditions for setting less stringent objectives require more information and in-depth assessment of alternatives than those for extending the deadline. For this reason, there should be a stepwise thinking process for considering what sort of exemption may be most appropriate. This stepwise thinking process for the relation between article 4.4 and 4.5 was already indicated in Figure 1of the environmental objectives paper.
Furthermore, there is a logical sequence between the tests for feasibility and for disproportionate costs: in a stepwise approach, feasibility should be tested first as a matter of pragmatism.
Finally, an assessment of disproportionate costs only makes sense after a combination of the the most cost-effective solutions has been identified. Most importantly, for all cases where an exemption is applied, all measures that are feasible and not disproportionately costly should still be taken to reach the best status possible.
Most of the above mentioned remarks are reflected in Figures 1 and 2 on the internal logic of article 4.4 and article 4.5.
Figure 1: Internal logic of Article 4.4
Explanation of Figure 1 – Internal logic of Article 4.4
Figure 1 summarises the principal tests involved in deciding whether the application of an extended deadline is appropriate. Other tests also need to be considered before applying an extended deadline. These include meeting the conditions specified in paragraphs 8 and 9 of Article 4 of the Directive. References in the Figure to good status should be interpreted as references to good ecological potential and good chemical status when dealing with heavily modified or artificial water bodies.
The Figure represents the internal logic of Article 4.4 as a step-wise linear process. However, in practice Member States may apply the process in a more iterative manner. For example, where it is technically infeasible to achieve good status by 2015 because there is no known technique for doing so (See Section 7 below), consideration of the other tests illustrated in Figure 1 will not be relevant. Instead, the application of a less stringent objective (See Figure 2 below) could be considered. In contrast, if achieving good status by 2015 is technically infeasible because of technical constraints on the timing of making the measure operational, consideration of whether the measure could be implemented in time to achieve good status by 2021 or 2027 would be relevant in order to decide if an extended deadline might be applicable.
The tests should not be applied in relation to any improvements to the status of water bodies that are required by other Community legislation (See Section 9 below and the Introduction). Exemptions may only be applied in relation to the additional improvements that would be necessary to achieve good status once compliance with relevant Community legislation has been achieved.
Where an exemption for an extended deadline is applied, a summary of the measures envisaged as necessary to achieve good status by the extended deadline and the expected timetable for their implementation must be set out in the River Basin Management Plan. A review of the implementation of these measures and a summary of any additional measures must be included in updates of the River Basin Management Plan. In the second and third planning cycle, Figure 1 should be used by leaving out the first column boxes referring to 2015.
The tests require consideration of the measures needed to address the pressures on the water body and so create the conditions necessary for the achievement of good status. It should be borne in mind that the rate of recovery of the water body to good status once such conditions have been established may be delayed because of natural conditions. Where natural conditions are preventing the timely achievement of good status by 2015, Article 4.4 provides that the deadline may be extended until such time as the water body recovers to good status (See Section 10 below).
Figure 2: Internal logic of Article 4.5
Explanation of Figure 2 – Internal logic of Article 4.5
Figure 2 should be read in conjunction with Figure 1. According to the step-wise approach, it assumes that the tests indicated in Figure 1 have already been applied. Figure 2 is intended to illustrate the process of checking whether a less stringent objective is applicable and, if so, the process for identifying what the less stringent objective should be. As with Figure 1, references to status should be interpreted as references to ecological potential and chemical status when dealing with heavily modified or artificial water bodies.
The Figure illustrates the process for the first cycle. The application of any less stringent objective must be reviewed in each subsequent planning cycle. When reviewing a less stringent objective, the internal logic illustrated in Figure 2 still applies. However, references in the Figure to 2015 should be treated as references to the deadline relevant to the planning cycle concerned (e.g. 2021; 2027; etc)
Before setting a less stringent objective, Member States must decide whether the environmental and socio-economic needs served by any activity that is preventing the achievement of good status could instead be provided by other means which are a significantly better environmental option not entailing disproportionate costs. Where the achievement of good status is being prevented by impacts resulting from human activities which have now ceased (e.g. historically contaminated land or sediment), this test will not be relevant.
If the test for other means is failed (i.e. if an ‘other means’ exists), an exemption cannot be applied and the objective for the water body will remain to aim to achieve good status. Member States are free to choose how they then achieve good status. They are not obliged to implement the identified other means of providing the benefits served by the activity as part of those measures.
In principle, a less stringent objective should represent the condition expected in the water body once all measures that are feasible and not disproportionately expensive have been taken. For example, this could mean that a less stringent objective is for the majority of the quality elements to be protected at, or restored to, values consistent with good status even though the overall status may be worse than good because of remaining impacts on other quality elements[2].
In some cases it may be technically infeasible or disproportionately expensive to make any improvements in the status of a water body within the period covered by the relevant river basin management plan or update. In such cases, Member States must nevertheless prevent further deterioration of status, subject to the application of paragraphs 6 or 7 of Article 4 of the Directive. It should be noted that the term “infeasible” used in Article 4 (5) is broader than the term “technical feasibility” used in Article 4 (4).
Application of new exemptions in subsequent planning cycles
On the basis of new knowledge gathered in the subsequent planning cycle, it may be necessary and appropriate in some cases to apply a new exemption under article 4.4 or 4.5 in the next update of the river basin management plan. For example, suppose a Member State finds that a water body will not achieve the objective set for it because the measures the Member State implemented are proving less effective than expected (See also Section 6 below). If bringing the achievement of the objective back on track would be infeasible or disproportionately expensive, an extended deadline up to 2027 or a less stringent objective may be applied, as appropriate. Along the same lines, it is possible to apply a less stringent objective in a subsequent planning cycle for a water body for which an extension of the deadline was applied in an earlier planning cycle or it could be concluded that an exemption is not necessary anymore for the second or the third planning cycle.