EU WATER LAW and POLICY

4 - Water protection and others EU environmental legislations

Legal protection of water and aquatic ecosystems is not limited to water legislation. The implementation of an integrated and ecosystemic approach requires the contribution of several other pieces of legislation adopted on the basis of the treaty environmental provisions. The importance of the fact that many projects related to water and water management and that many impacts on the water resource may fall within the ambit of general environmental law should not be discounted.

Directives on the environmental effects on certain projects, plans and programmes play a key role in preventing significant impacts on water.
Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment . requires that an environmental assessment shall be carried out for all plans and programmes, which, among others, are prepared for water management (Art. 3(2)). In addition, all such assessments (irrespective of whether they relate to water management or not, must identify the likely significant effects on the environment, “including on issues such as (…) water” (Annex I). As will be seen below, the relevance of this legislation for water law is in addition tremendous as many of the management plans it requires the Member States to adopt and implement will themselves be subject to such an assessment.
Directive 2011/92 revised by Directive 2014/52/EU on the assessment of the effects of certain public and private projects on the environment . provides that the environmental impact assessment (EIA) it requires to be conducted within its scope “shall identify, describe and assess in an appropriate manner, in the light of each individual case (…) the direct and indirect effects of a project” on a number of factors, including water (Article 3 of Directive 2014/14). Among the types of project which are subject to an EIA are certain inland waterways and ports for inland-waterway traffic, trading ports, piers for loading and unloading connected to land and outside ports, groundwater abstraction or artificial groundwater recharge schemes, works for the transfer of water resources between river basins, waste water treatment plants, etc. .

Similarly, legislation on industrial installation and on the control of major-accident hazards involving dangerous substances allow actions to be taken at the source of pollution or risks of harmful effects on water. Directive 2010/75 on industrial emissions (integrated pollution prevention and control) the “IED” Directive which is at the core of industrial environmental law, lays down rules designed to “prevent or, where that is not practicable, to reduce emissions into (…) water (…) in order to achieve a high level of protection of the environment taken as a whole” (Art. 1). According to the data for 2018, 20% of IED installations emit 20% of the total pollutants to water . Other legislation are also focused on the sustainable use products such as Directive 2009/128/EC which provides specific measures to protect the aquatic environment and drinking water .

Water damage is one of the three types of damage which fall within the scope of the Directive 2004/35/CE on environmental liability regarding the prevention and remedying of environmental damage . This is any damage that significantly adversely affects the ecological, chemical or quantitative status or the ecological potential, as defined in the WFD, of the waters concerned, or (ii) the environmental status of the marine waters concerned under the Marine Strategy Framework Directive (Art. 2(1)(b) of Directive 2004/35). Directive 2004/35 applies, inter alia, to environmental damage caused by, and to any imminent threat of such damage occurring by reason of certain activities which include discharges into inland surface water and into groundwater which require prior authorisation under the applicable EU legislation, the discharge or injection of pollutants into surface water or groundwater and water abstraction and impoundment of water subject to prior authorisation in pursuance of the WFD (Art. 3(1) of Directive 2004/35). Remedying of such environmental damage, in relation to water, is achieved through the restoration of the environment to its baseline condition by way of primary, complementary and compensatory remediation (Annex II to Directive 2004/35). In the same way, the Directive 2008/99/EC on the protection of the environment through criminal law identifies among the following conduct which “constitutes a criminal offence when unlawful and committed intentionally or with at least serious negligence” those causes or is likely to cause (…) substantial damage to the quality (…) of water, or to animals or plants” (art. 3).

Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora aims to ensure the protection of natural habitats and species of Community interests, including aquatic habitats and species at a favourable conservation status within the Natura 2000 network . The Water Framework Directive includes provisions to ensure consistency with the objectives of Natura 2000. Member States have to establish a register of protected areas “which have been designed as requiring special protection under specific Community legislation”, in particular for the conservation of habitats and species directly depending on water (art. 6). In the last report on the implementation of this Directive, the Commission underlines that hydropower installations “are the most important source of energy-related pressures for migratory and freshwater fish” . The Commission also emphasises the direct impact of the invasive alien species on certain bird, amphibian, fish and vascular plant species. The regulation (EU) 1143/2014 aims to prevent and manage the introduction and spread of invasive alien species . Among the current EU list of 66 invasive alien species, several of which are aquatic plants (such water hyacinth, creeping water primrose (..) and species (Louisiana crayfish, striped catfish, bullfrog, coypu (…) . More recently, the European Commission has presented a proposal for a regulation on nature restoration which contains restoration targets and specific requirements for rivers and floodplains .