WATER FRAMEWORK DIRECTIVE

The waters that Member States designate as artificial or heavily modified are subject to less stringent requirements if achieving good ecological status would require changes which would have “significant adverse effects” on the environment, navigation, activities for the purpose of which water is stored, water regulation, plot protection, land drainage or other “equally important sustainable development activities” (Article 4(3)).
Article 2 defines an artificial water body as “a body of surface water created by human activity” and heavily modified water body as “a body of surface water which as a result of physical alterations by human activity is substantially changed in character, as designated by the Member State in accordance with the provisions of Annex II”. The WFD also introduces the concept of “good ecological potential” which is the status of a heavily modified or an artificial body of water, so classified in accordance with the relevant provisions of Annex V” (article 2). Member States may designate such bodies of water in their river basin management plans when:

1. the changes to the hydromorphological characteristics of that body which would be necessary for achieving good ecological status would have significant adverse effects on:
   1. the wider environment
   2. navigation, including port facilities or recreation,
   3. activities for the purpose of which water is stored, such as drinking-water supply, power generation or irrigation,
   4. other equally important sustainable human development activities
2. the beneficial objectives served by the artificial or modified characteristics of the water cannot, for reasons of technical feasibility or disproportionate costs, reasonably be achieved by others means, which are a significantly better environmental option”.

The vagueness of all these elements suggests extensive interpretations by Member States and consequently a breeding ground of disputes. The requirement for such water bodies was only to achieve “good ecological potential and good surface water chemical status” (Article 4(1)(a)(iii)) by 2015.

Member States may aim to achieve less stringent environmental objectives for specific bodies of water “when they are so affected by human activity (...) or their natural condition is such that the achievement of these objectives would be infeasible or disproportionately expensive.” In theses cases they must justify that the environmental and socio-economic needs served by such human activity cannot be achieved by other means and that the costs are not disproportionate. In addition, they must minimise adverse impacts (Article 4(5)). It is also required that “no further deterioration occurs in the status of the affected body of water” (article 4 (5) c)).

The WFD rules out any breach with respect to its objectives in certain circumstances, where all practical steps are taken to prevent such adverse impacts and the programmes of measures and management plans are adapted accordingly: temporary deterioration in the status of bodies of water resulting from natural causes or force majeure or accidental ones, alterations to the level of bodies of groundwater or new activities of “sustainable human development”, etc. (Article 4(5) to (7)).
The directive not only includes general obligations but also applies to specific projects and the duty to prevent the deterioration of surface water bodies is “applicable to every surface water body type and status for which a management plan has or should have been adopted.”