Improving the Assessment of Impacts on Water Bodies in the Context of Water Framework Directive and Aarhus Convention

Justice and Environment network has recently published a new legal analysis on improving the quality of Applicability Assessments under Art 4(7) of  Water Framework Directive (WFD) and on the Environmental Impact Assessment (EIA) as a role model for the assessments of impacts on water bodies. According to the study the Water Framework Directive (2000/60/EC) requires that the Member States (MS) should achieve certain environmental objectives for surface and ground waters. Importantly, this includes the prevention of the deterioration of the status of water bodies. Moreover, the MS have to ensure that that natural surface water bodies adhere to good ecological and chemical status and groundwater bodies to good quantitative and chemical status. The latter objective had to be achieved by 2015 in principle. The WFD Art 4(7) sets out a derogation from the objectives. The provision allows deterioration of the high status of a water body to good status for new sustainable human development activities and failure to achieve the required status or ecological potential or deterioration of the status resulting from new modifications to the physical characteristics of a surface water body or alterations to the level of bodies of groundwater.

This exemption is applicable only if all the following criteria are met:
a) all practicable mitigation measures are taken;
b) the reasons for modifications/alterations are specifically set out, explained and periodically reviewed in the river basin management plan (hereinafter RBMP);
c) the reasons for modifications/alterations are of overriding public interest;
d) the beneficial objectives served by modifications/alterations cannot for reasons of technical feasibility or disproportionate cost be achieved by other means, which are a significantly better environmental option.
Moreover, general requirements set out in paragraphs 8 and 9 of Art 4 apply. Importantly, the MS have to ensure that the granting an exemption does not permanently exclude or compromise the achievement of the objectives of the WFD in other water bodies within the same river basin district and is consistent with the implementation of other Community environmental legislation.

Application of the exemption requires assessment of the impacts of modifications, alterations or new sustainable human development activities. Such an assessment, which is known as “applicability assessment” (hereinafter ApA), is one of a group of ex ante assessments of environmental impacts required under the EU law. Other assessments include, for instance, the environmental impact assessment (hereinafter EIA) under the EIA Directive, the appropriate assessments under the Habitats Directive and the strategic environmental impact assessments under the SEA Directive. The most advanced procedural rules for any ex ante environmental assessments required under EU law are provided in the EIA Directive. Therefore, the present paper focuses on the relevance of EIA requirements to the ApA. It should be noted, however, that WFD Art 4(7) is not limited to private and public projects in the meaning of the EIA Directive. It is applicable to any action that may have the detrimental effects of the status of water bodies including, for instance, plans/programmes in the meaning of the SEA Directive.

There is limited case-law and comparative analysis in applying the WFD Art 4(7). One of the hurdles for the correct and uniform application of the provision is the lack of explicit procedural rules for the assessment. This not a concern in the cases where a project is subject both to the EIA and the ApA. In such cases the assessments should be combined and the procedural requirements of the EIA would apply. In the cases where the EIA is not required, the WFD leaves a margin of discretion to the MS for determining the procedural requirements but the discretion is limited. Firstly, a number of procedural requirements are inherent in any environmental decision-making due to the general principles of environmental or administrative law. The principles are enshrined in EU Treaties and in the Charter of Fundamental Rights of the EU. Secondly, the case-law of the CJEU suggests that decisions under Art 4(7) of the WFD may be subject to Art 6 of the Aarhus Convention. This article of the Convention sets out requirements for public participation in authorizing projects which may have significant environmental impacts. The aim of the J&E paper is to identify the requirements that are inherent to the applicability assessment, refer to the requirements that derive from the Aarhus Convention and discuss the elements of the EIA that could be used in the applicability assessment or should not be used.

For this purpose, the EIA procedural requirements also can be used as a model for ApA to highlight the procedural requirements that would (or would not) be useful in achieving the aim of the WFD and in their relevance for the ApA. The requirements are discussed roughly in the order the procedure, i.e. starting with the screening decision and ending with monitoring measures. The requirements provided for the EIA are further divided into three categories: 1) requirements that are necessary for implementation of Article 6 of the Aarhus Convention (as interpreted by Aarhus Convention Compliance Committee); 2) requirements that are implicit in the WFD art 4(7) because it would not possible to ensure the effectiveness of the WFD without applying them; 3) requirements that are not currently part of the WFD art 4(7) but could be applied (or should not be applied) to the ApA to improve its quality.