EU WATER LAW and POLICY

EU water legislation is already well into its third generation. The Fitness Check of the Water Framework Directive and the Flood Directive and the European Green Deal mark a new turning point of EU Water policy. A “multifaceted water resilience agenda” . for 2030 through ecosystem thinking is presented as the trajectory of this policy at the crossroads of the complex challenges of climate, food and energy security, biodiversity and the sober and circular use of natural resources . The EU Biodiversity Strategy (2020) , Climate Adaptation Strategy (2021) , Soil Thematic Strategy (2021) , Zero Pollution Action Plan (2021) , converge toward this horizon. However, the protection and improvement of water does not appear as such among six priorities of the 8th Environmental Action Programme, it is only a component of the objective of “zero pollution” and the objective related to biodiversity.

A brief overview of the highlights of EU Water Policy since 1975 shows the complex structure or “arborescence” of EU Water Legislation.
It initially arose between 1975 and 1986 with Directives on such diverse topics as surface waters ., bathing waters , discharges of hazardous substances in surface waters and ground water , “fresh waters needed protection or improvement in order to support fish life” or the quality required of shellfish waters , not to mention the probably single most important piece of legislation, on the quality of water intended for human consumption . During a second phase from 1991, some of these initial Directives were revised, such as those pertaining to human consumption water and bathing waters, and others were adopted, dealing with urban waste water , and nitrates from agricultural sources .
This sectoral approach to water protection and improvement is explained by the EC’s choice to prioritise the action according to the scientific data and methodologies available. In the first environmental action programme, the EC therefore considered that studies on the setting of quality objectives will initially focus on surface freshwaters. However, these these legislative puzzle pieces (by type of water, by type of human uses, by type of pollution, by type of pollution source (…) have several ecological and legal limitations.

This legal fragmentation does not contribute to a holistic and ecosystemic protection of the water cycle and aquatic ecosystems including the land-sea continuum. In 1993, the Commission promoted the concept of “good ecological quality” and it considered that a “body of water is considered to be of good ecological quality when self-purification of the water body is maintained, the diversity of naturally occurring species is preserved and the structure and quality of sediments are able to sustain the naturally occurring biological community of the ecosystem”. In its proposal for a Council Directive on the ecological quality of water, the Commission proposed to repeal and revise certain existing directives. Even though this proposal did not succeed, it prefigures the transformation process of the EU Water policy illustrated by the adoption of the Directive 2000/60/EC, establishing a framework for community action in the field of water policy.
As a framework directive, the WFD quite unsurprisingly attempted to restructure a large part of the existing EU water legislation. As will be seen in Part 3 below, the WFD does, as suggested by its title, establish a framework for a water “policy.” This is obvious in so far as it comes up with new concepts, at least at EU level, for dealing with water protection, such as that according to which the most relevant hydrological level for dealing with the water resource is that of the river basin, or at least of a coherent group of river basins. Likewise, the WFD makes an overreaching effort in making use of other relevant EU legislation, be it in the field of the environment or in other environmental protection, such as the Natura 2000 network. Another sign of the EU legislature’s efforts to organise a water policy can be found in the fact that the WFD provides strict rules in terms of the appraisal of the hydrological, biological and quantitative status of all kinds of water bodies existing on Member State territories and organises both initial analyses of those bodies of water as well as further monitoring. More actively related to the conduct of a policy are the provisions of the WFD which require Member States to adopt and implement river basin management plans, programmes of measures and to control point and diffuse sources of pollutants by a “combined approach.” Another major innovation, again at least at EU level, is that of using the pricing of water as an economic instrument of protection of that important resource, providing enticement to the various users to behave in a likewise fashion. Last but not least – by far -, the WFD lays down a series of objectives, the ultimate one of which is to reach a “good” status of all water bodies within the EU territory, a goal that was in principle required to be reached by 2015, albeit not without certain flexibilities. To this end, the WFD merged into its provisions the rules which had been set forth by previous directives with respect to water quality and discharges into groundwater and surface waters.
In spite of the very large ambition of the WFD, it has not substituted all prior existing water legislation, by far.
The WFD abrogated and replaced most of the previous directives pertaining to the aquatic environment and to its use, as well as the older directives relating to discharges in such aquatic environments, the provisions of which were regrouped and revised at the same time. The most significantly impacted pieces of EU water legislation are those pertaining to the quality of the aquatic environment which provide for quality objectives in view of the requirements of the various water bodies. The WFD thus de facto replaced directives dating back to the 1970s on (i) the quality required of surface waters intended for the abstraction of drinking water in the Member States , (ii) the two directives already mentioned above on the quality of waters needing to be protected or improved for the life of fishes and shellfish. As to previously existing legislation which applied to discharge in the aquatic environment, part of it was kept by the WFD for a number of years prior to their being abrogated, whilst others still remain in force and should do so for many more years. The WFD thus abrogated, but only with an effective date of 22 December 2013, four directive such as Directive 1980/68/EEC on the protection of groundwater against pollution caused by certain dangerous substances, and Directive 76/464/EEC on pollution caused by certain dangerous substances discharged into the aquatic environment .