First approach to the Water Framework Directive.

1. First approach to the Water Framework Directive.

2. Why a new framework for European water policy? 1988: concernaboutcommonlegislationisneeded. 1995: proposalfor a new Directive. 2000: Directive 2000/60. Sustainable model (implementation of the WFD): Water is a scarce resource and environmental questions have to be consider as a priority: environmental impact assessment, pollution control, ecological flows, etc. This model implies a water demands control system. Integrative approach + Inefficiency sectorial legislations + Fragmetation feeling New water policy Environmental new philosophy: integrity, multidisciplinary, coordination. Unsuccesful application, overlap and legal holes.

3. Water management models (I). Evolution. • Traditional offer model: 1) Water as a non scarce resource. a) Therefore water must be used, and if it is necessary, we must transforms nature to do it. Environmental issues are not considered as important. b) For many decades this system has provoked an absolute ineffectiveness consumption: water rights. 2) The relation between the former legitimating rights to use water and public works. Spain is the country with more dams per inhabitant in hole the world. 3) A model what got its objectives in the middle 20th century, but: a) Drinking water: the priority of human consumption (but nowadays Spaniards consume more water than any other european population); b) Agriculture (paradox: irrigation consumes 80% of water, but only represents 1.5% of spanish economy); c) Power generation (paradox: nowadays we can not base our energy generation industry on a scarcer resource in advanced).

4. Water management models (II): present and future. • Demand model: 1) Water is a scarce resource and environmental problems are considered (environmental impact assessment in public works and permissions). Changes begun when Spain became an EU member. 2) This model obliges to redistribute the resources previously conceded trying to reach effectiveness in the consumption and use of water. 3) Remaining WFD’s objectives and some environmental problems: economical effectiveness vs. environmental protection. • Sustainable model (implementation of the WFD): 1) Water is a scarce resource and environmental questions have to be consider as a priority, even pollution control, ecological flows, etc. 2) This model implies a water demands control system. 3) Spain is implementing the WFD in time, although the process can be criticized: a) Doubts about the real meaning of the WFD: the approach has not been all the intense that could be expected; b) Disconnection between legal system and administrative practice: new demands in those territories where water is scarcer.

5. DIRECTIVE 2000/60: establishing a framework for Community action in the field of water policy. • Whythe WFD is a frameworkDirective?Theevolution of europeanenvironmentalnormstowardsthefulfillment of the 30th ECT Protocol on the application of the principles of subsidiarity and proportionality. • Directives versus Regulations on the ECT: the early 70’s and 80’s environmental Directives were very close to the Regulations. • Redirecting environmental Directives towards their original sense (30th Protocol ECT): “The form of Community action shall be as simple as possible, consistent with satisfactory achievement of the objective of the measure and the need for effective enforcement. The Community shall legislate only to the extent necessary. Other things being equal, Directives should be preferred to Regulations and framework Directives to detailed measures. Directives as provided for in Article 189 of the Treaty, while binding upon each Member State to which they are addressed as to the result to be achieved, shall leave to the national authorities the choice of form and methods”. • Is the WFD really a framework Directive? Does not the WFD contain detailed measures?

6. The WFD sets out a clear deadlines for each of the requirements which adds up to an ambitious overall timetable. 

7. Apart from the Protocol, why was reasonable to approve a framework Directive? • Community water policy requires a transparent, effective and coherentlegislativeframework, and the WFD providecommon principles and the overall frameworkforaction. • This Directive provide for such a framework and coordinate and integrate the basis for protection and sustainable use of water: • The important differences between the member States’ water Law. • The obvious differences between the hydrological, climatic and water problems of each member States. • In a EU with 27 member States, is it possible to develop the common harmonization for water protection based on a different kind of norm? • Art. 191.2 EUT: “Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Community”. • Art. 191.3 EUT: “In preparing its policy on the environment, the Community shall take account of:— environmental conditions in the various regions of the Community”. • The WFD is a good example about what is happening in other subjects: proposals for Directives establishing a framework for the protection of soil.

8. Towardsanintegratedapproach. • The WFD, as therest of the new environmentalDirectives, focusesistefforts in anintegratedapproach, wheretheprotectionisnotreferredto a single natural resource, buta global point of view. • In ordertofulfillwiththisapproach, the WFD assumes a hugescope: inlandwaters in general (waterbodies: surfacewaters, groundwaters) and marine waters (waterbodies: coastal and transitionalwaters), and alsoassociatedecosystems (protectedareas). Itis no importantwhetherthosewaterbodies are considered as publicdomainorprivatepropertybythenationalLaw. • TheformerwaterDirectiveshad a sectorial point of view: somekinds of polutants, somekinds of waters…, withoutconnectionwithothernorms. • The WFD isthecommon base (the “motherDirective”) totherestwaterDirectives in ordernowadays, and gives a global and integratedsensetotheeuropeanwaterpolicy, connectingitsenvironmentalobjectiveswithotherenvironmentalDirecives (IPPC Directive and emmission control, wasteDirective and groundwaters, ProposalforsoilDirective and groundwaters, etc.). • The WFD incorporatesthehydrologicalcycletoitsfield of action, includingenvironmentalobjectivesforprotectedareas and associatedecosystems (riversides). • Can wesayseriouslythatthe WFD isonly a waterqualityDirective? Isthe WFD a EuropeanWaterLawthatregulate and modifythenationalwaterLaw of each country? • Otherexamples: thelargenumber of european normsapprovedtocarrryoutwiththeKyotoProtocol, the IPPC Directive, theDirectiveonwasteorthe new proposalforDirectivefor the protection of soil.

9. A good example in Spain. • Environment Minister: program of riverbeds and riversides restoration.

10. Hydrological cycle and juridical consequences. Waterbodies: definition, characterisation and objectives. • Environmental objectives: the good ecological status objectives are determined for each type of water body (rivers, lakes, groundwaters, coastal and transitional waters). • To get those objectives, membes States have to identified every water body and establish specific objectives to each one.

11. Surfacewaters: delimitationcriteria. Example: surface water delimitation in Júcar river basin (Spain). Clasification of pressures. Final identification.

15. Artificial and heavilymodifiedwaterbodies. • Member States shall protect and enhance all artificial and heavily modified bodies of water, with the aim of achieving good ecological potential and good surface water chemical status. • Artificial water body: “a body of surface water created by human activity”. • Heavily modified water body: “a body of surface water which as a result of physical alterations by human activity is substantially changed in character”.

18. The environmental objectives affect both quality and quantitative aspects. • For the purposes of environmental protection, there is a need for a greater integration of qualitative and quantitative aspects of both surface waters and groundwaters, taking into account the natural flow conditions of water within the hydrological cycle. • The special importance of quantitative aspects in relation with groundwaters: the quantitative status of a body of groundwater may have an impact on the ecological quality of surface waters and terrestrial ecosystems associated with that groundwater body. • It is supposed that the WFD should be implemented in a homogeneous way: the common implementation strategy. • If the WFD affects quantitative aspects, does it mean The Directive affects to the water management?

19. Quantitative aspects, water management and ECT’s legal basis of WFD. • Accordingtothe legal basis of the WFD, onecouldsaythatitisanenvironmentalnorm; however, accordingtoitscontents, itismuch more thanthis and the real affection in memberStateswaterpolicyisimportant. Towards a sustainable water management system. • Theeuropeanenvironmentalpolicywasbasedonthe art. 175.1 ECT: codecisionprocedure. • Art. 175.1 ECT: “The Council, acting in accordancewiththeprocedurereferredto in article 251 and afterconsultingtheEconomic and Social Committee and theCommittee of theRegions, shall decide whatactionistobetakenbytheCommunity in ordertoachievetheobjectivesreferredto in article 174”. • The WFD wasapprovedbasedonthatarticle, so isit a water quality norm or a environmental norm that affects to water management? • Differencesbetween 1st and 2nd paragraph of art. 175 ECT: • Art. 175.2 ECTT: “Byway of derogationfromthedecision-makingprocedureprovidedfor in paragraph 1 and withoutprejudicetoArticle 95, the Council, actingunanimouslyon a proposalfromtheCommission and afterconsultingtheEuropeanParliament, theEconomic and Social Committee and theCommittee of theRegions, shalladopt: (…) (b) measuresaffecting: (…) quantitativemanagement of waterresourcesoraffecting, directlyorindirectly, theavailability of thoseresources”.

20. Groundwaters and quantitativeaspects. Good groundwater status: “the status achieved by a groundwater body when both its quantitative status and its chemical status are at least good”. Quantitative status: “an expression of the degree to which a body of groundwater is affected by direct and indirect abstractions”.

21. Ecologicalflows. • The very important transcendence of this question in Southern Europe: fulfillment of ecological flows (WFD’s hydromorfological indicators) in those countries where scarcity is an inherent problem in their hydrological systems.

23. Hydraulic infrastructures. • Evolution towards a sustainable management model involves a change in the point of view have been maintained about hydraulic public works so far: 1) Recycling waste-waters and desalinization. New environmental problems for new infrastructures: power generation deficit and discharges. 2) Water demand control instead of building new infrastructures with huge environmental impacts. 3) Dam removal: many of small dams are coming to the end of their lives. Limits: a) New artificial ecosystems versus natural restoration. b) Recovery cost principle. c) Protected dams. Can the WFD prohibit member States from building public hydraulic infraestructures? 4) EU Law requirements: a) Obviously environmental impact assessment. b) New objectives of WFD as limits in the execution of new projects. c) Recovery cost principle.

24. Wastewaterstreatment. The Directive 91/271 and the WFD obliges member States to treat waste waters before discharging into surface water.

25. A.G.U.A. Program: “Spain has obtained water from marines water since 30 years ago (from 1965, in Lanzarote). Nowadays there are more than 700 factories working. Equipments can produce more than 800.000 m3/day (47,1% from coastal waters)”. • Foreseen actions in the Mediterranean coast will increase the resources produced in 1.100 Hm3/year. Invesment is higher than 3.900.000.000 €. Next actions have been declared urgent:

27. Damremoval. Channels in Doñana National Park Dam in Trefilerías (Cantabria) Dam in Ladrillar (Cáceres) Dam in Butrera (Trema river, Burgos)

28. Combined approach implementation. • With regard to pollution prevention and control, Community water policy should be based on a combined approach through the setting of emission limit values and of environmentalqualitystandards. • Emissionlimitsvalues: control of pollution at source or concentration and/or level of an emission, which may not be exceeded. • Qualitystandards: control of global pollution at natural resource which receives the pollution. • ComparisonwithformerDirectives: theparalellapproach. • Art. 174.2 ECT: “…environmental damage should as a priority be rectified at source”. • Wasitreliabletomantain a control basedononekind of standandars? • ThisisalsothewayothersenvironmentalDirectivesgoon: the IPPC Directiveisthebestexample.

29. Towards a higher level of protection. • Art. 191.2 EUT: “Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Community”. • Stand still principle: a common clause with a relative effectiveness. • Art. 4.1.a).i) WFD: “Member States shall implement the necessary measures to prevent deterioration of the status of all bodies of surfacewater”. • Art. 4.9 WFD: “Steps must be taken to ensure that the application of the new provisions, including the application of paragraphs 3, 4, 5, 6 and 7, guarantees at least the same level of protection as theexistingCommunitylegislation”. • Art. 11.6 WFD: “In implementing measures pursuant to paragraph 3, Member States shall take all appropriate steps not to increase pollution of marine waters. Without prejudice to existing legislation, the application of measures taken pursuant to paragraph 3 may on no account lead, either directly or indirectly to increased pollution of surface waters”. • The new Directiveshavetoregulateincreasinglevels of protection. Art. 22.6 WFD: “For bodies of surface water, environmental objectives established under the first river basin management plan required by this Directive shall, as a minimum, give effect to quality standards at least as stringent as those required to implementDirective 76/464/EEC”. • The use of this principle is common in all the european environmental Directives. • Could be possible to approve a new Directive which derogate former norms with not stricter level of protection? Would it agree with the Treaty?

30. Science and technique dependence. • Theincreasingprotectionimpliesneccesarilytodependonthestate of science and techniquetoimprovethequality and emissionstandars. Pursuant to art. 174 ECT, in preparing its policy on the environment, the Community is to take account of available scientific and technical data. • The emission controls based on best available techniques (BAT clauses) (art. 10.1 WFD). • Technical adaptations to the Directive in accordancewithscientific and technical progress (art. 20 WFD). • All the modern environmental Directives include BAT or BATNEEC clauses and technical adaptations requirements, apart from remissions to technical norms. • How the science and technique influence changes the democratic legitimation of the Government and Administration?

31. The use of economic instruments. • The principle of recovery of the costs of water services, including environmental and resource costs associated with damage or negative impact on the aquatic environment should be taken into account in accordance with, in particular, the polluter-pays principle. • Art. 9.1 WFD: “Member States shall take account of the principle of recovery of the costs of water services, including environmental and resourcecosts”. • However, theproposalfor a frameworkDirectiveincludedanobligationmuchstricter, impossingthefull recoverycosts. • Waterservices:abstraction, storage, treatment and distribution of surface water or groundwater, and waste-water collection and treatment facilities which subsequently discharge into surface water as well. • Art. 174.2 ECT: polluter pay principle vs. userpayprinciple. • In otherenvironmentalDirectivesiscommonthe use of othereconomicinstruments: emissionpermitsmarket, voluntaryrequirements, voluntaryagreements, etc. • Doesit mean that in advancedthetypicalprescritivenormswillbesubstituitedbythe exclusive use of economicinstruments?

32. Recovery cost principle.

33. European Law and a new water management authority and planning. • River basin district (RBD): • River basins. • Marine waters. • Protected areas. • RBD plan and programme of measures. • Competent authorities: • Inner or national RBD. • International RBD. • Transeuropean RBD.

35. GREEN - River Basin Management Plans adopted.YELLOW - consultations finalized, but awaiting adoption. RED - consultation have not started or ongoing.