Water Services

In considering how the European Union (EU) Water Framework Directive 2000/60 (‘WFD’) makes some provisions that are relevant to water services (including the protected area status of drinking water sources within the territory of the EU), it is necessary to consider how it works along with Directive 1998/83 on Drinking Water Quality and Directive 1991/271/EC on Urban Waste Water Treatment in the context of the WFD. Therefore, this essay will look to review these two Directives’ requirements to identify any difficulties in their implementation within the context of the requirements of the remit of the WFD. Moreover, as someone from a non-EU member state, this essay also considers whether the rules discussed regarding Directives 1998/83 and 1991/271 in the context of the WFD could be used as reference tools for developing water services in non-EU member states. Finally, this essay will conclude with a summary of the key points derived from this discussion in relation to the two Directives regarding water services in the context of the WFD and how they could be used as reference tools for water services in non-EU member states.
Water’s value within the EU was emphasised when the European Commission recognised in 2002 that 20% of all surface water in the EU is seriously endangered by pollution, ground waters supply around 65% of all of the EU’s drinking water, 60% of all cities in the EU over-exploit their groundwater resources, 50% of EU wetlands have ‘endangered status’ due to their groundwater being over-exploitation and that the area of irrigated land in Southern EU has increased by 20% since 1985 (European Commission, 2002). Therefore, in looking to enhance the development of water services within the EU and safeguard water quality the enactment of Directive 1991/271 on Urban Waste Water Treatment (as amended by Directive 1998/15) was meant to specifically reduce nutrient output from industrial and municipal sources and improve the quality of drinking water in the EU. This is because the Directive was largely concerned the “collection, treatment and discharge of urban waste water and the treatment and discharge of waste water from certain industrial sectors” with its main objective being “to protect the environment from the adverse effects of urban waste water discharges and discharges from certain industrial sectors”. Moreover, Directive 1991/271 ostensibly requires the collection and treatment of waste water in what are referred to as ‘agglomerations’ with a population of over 2000 and more advanced treatment where there are populations with ‘agglomerations’ greater than 10,000 in sensitive areas under Articles 3 to 5 (Weale, et al, 2000, p.363).
On this basis, Directive 1991/271 established three principal deadlines for EU member states to fulfil to – (a) install stringent collection and treatment systems for designated sensitive water areas in the EU (those that are eutrophic or otherwise seriously polluted by waste) by 1998; (b) establish secondary systems in larger EU cities by 2000; and (c) establish secondary systems in all EU cities by 2005 (Clay, 2001). Moreover, more specifically under Directive 1998/83 on Drinking Water Quality, the Directive was implemented so as to protect human health by establishing healthiness and purity requirements to be met by drinking water within the EU under Article 1. These standards under the Directive are to be applied to all water intended for human consumption apart from natural mineral waters and those which are medicinal products under Article 3. Therefore, the remit of this Directive meant that EU member states were to look to guarantee drinking water does not include any concentration of micro-organisms, parasites, or any other substance that could be a potential risk to human health under Article 4 and that it meets the minimum requirements relating to microbiology, chemical and radioactivity content established by Directive 1998/83, as well as taking any other action needed to guarantee the healthiness and purity of water for human consumption under Articles 5 and 6.
In addition, the Directive also applied the precautionary principle so, for example, contaminant levels for pesticides in the EU are around 20 times less than in the World Health Organisation (‘WHO’) drinking water guidelines (European Commission, 2004, p.107), because the Directive not only aimed to protect human health but also to safeguard the EU environment (European Commission, 2004, at 106). As a result, EU drinking water standards and those cases where these standards are temporarily exceeded by a small margin should be interpreted within this given context – although compared to Directive 1980/778 on Drinking Water Quality the number of parameters has been reduced to allow other member states to include parameters of their choosing such as magnesium and calcium under Article 9. Therefore, Directive 1998/83 on Drinking Water Quality needs EU member states to look to regularly monitor water quality for human consumption and publish reports every three years so that the European Commission is then also required to publish a summary report under Article 7. Moreover, within five years of the Directive’s implementation all EU Member States had to comply with the remit of the Directive, whilst exemptions may be granted temporarily where they do not affect human health under Article 11. The problem was that, despite these two enactments positive intentions for enhancing water quality, they fell down somewhat in the effectiveness of their implementation.
By way of illustration, regarding Directive 1991/271 on Urban Waste Water Treatment the problem was that most EU member states missed the first two deadlines in 1998 and 2000 and have also, as a result, been somewhat slow to look to effectively inform the European Commission on their progress (Turner, et al, 1998). As a result, it is perhaps little wonder then that former environment commissioner Margot Wallstrom criticised several EU towns and cities for not implementing the Directive’s requirements on schedule by continuing to discharge untreated waste water contrary to the Directive (European Commission, 2001). Moreover, many other European areas within member states also failed to keep the European Commission adequately informed on issues including identifying sensitive areas and building primary and secondary treatment plants because of a lack of legislative enforcement (Clay, 2001). The European Commission also noted that the majority of EU member states had “proceeded in a restrictive fashion when designating sensitive areas and have not taken into account the fact that discharged waste water migrates and contributes to the level of pollution downstream” (European Commission, 2001) with only Germany, Austria and Denmark having complied with the Directive (European Commission, 2004).
Then, with regards to Directive 1998/83 on Drinking Water Quality, prior to 2006, the European Commission had not published a summary report on the quality of drinking water within individual EU member states and the territory of the EU as whole (European Commission, 2006). As a result, this served as a stark indication of the challenges still facing those EU member states that were seeking to implement the Directive. This is because no EU member state had achieved full compliance mainly due to the geological nature of its soil and agricultural activity. Then, in 2003, the European Commission initiated a broad consultation process with a view to then preparing for an effective revision of the Directive so to be able to move away from a pure ‘end-of-pipe’ standard setting approach (European Commission, 2003). Therefore, the whole water supply process from the basin to the tap would then be effectively assessed according to the remit of the Directive so as to be able to better identify risk and the most effective control points for providing for regulation.
Moreover, the WFD’s enactment in the EU served to define a framework for the protection of inland surface, transitional and coastal waters as well as groundwater (Carter, 2007). This is because the WFD has looked to combine the approaches to water quality and its improvement that was recognised in Directive 1991/271 on Urban Waste Water Treatment and Directive 1998/83 on Drinking Water Quality. As a result, the WFD recognised that “With regard to pollution prevention and control, Community water policy should be based on a combined approach using control of pollution at source through the setting of emission limit values and of environmental quality standards” (paragraph 40, p.4). Therefore, the WFD also aimed to protect and enhance the status of aquatic ecosystems and provide for the long-term protection of water resources through promoting sustainable water use and the reduction of groundwater pollution and also to mitigate the effects of floods and droughts (Carter, 2007). Integrated Water Resources Management under the WFD, therefore, established a plan for water management until 2015 (in some cases until 2020) then supplemented by Directive 2006/118 on the Protection of Groundwater Against Pollution and Directive 2008/105 on Environmental Quality Standards in the Field of Water Policy (Priority Substances Directive). The WFD’s most innovative features include within its remit – (a) river basin management; (b) combination of emission limits and water quality objectives for pollution control; (c) costs to the user reflecting the true cost of water provision; and (d) public participation with high implementation costs throughout the EU including in the UK with costs ranking between €3 billion and €11 billion for the UK government to be able to fulfil the WFD’s objectives (Mukhtarov, 2009).
On this basis, the WFD’s main purpose under Article 1 is to establish a framework for protecting inland surface waters, transitional waters, coastal waters and ground water to – (a) prevent further deterioration and protects and enhances aquatic ecosystems; (b) promote sustainable water use based on a long-term protection of available water resources; (c) enhance protection and improvement of the aquatic environment; (d) ensure the progressive reduction of pollution of groundwater; and (e) contribute to mitigating flood and drought effects through the recognition of polluter pays principles to reduce consumption under Article 9 (Nizhny Novgorod State University of Architecture & Civil Engineering, 2005). The WFD itself arose from the fact water protection has long been a key priority with European water-related environmental policy beginning in the mid-1970s with standards for surface water supply sources. These standards were then supplemented in the 1980s with targets also established for drinking, fish, bathing and ground waters (Postel, 2008). Moreover, in 1988 the Community Water Policy Ministerial Seminar in Frankfurt also highlighted the need for European Community legislation to be enacted regarding ecological quality and began the second phase of legislative development leading to Directive 1991/271 on Urban Waste Water Treatment, Directive 1991/676 on Pollution of Waters by Nitrates, Directive 1996/61 on Integrated Pollution & Prevention Control and Directive 1998/83 on Drinking Water Quality.
Therefore, the WFD aimed to coordinate the different measures through the development of a combined approach that had already been taken in the EU. Such steps were taken to tackle many of the particular pollution problems associated with water services within the territory of EU member states with a view to meeting the WFD’s established objectives. As a result, supported by Directive 1991/271 on Urban Waste Water Treatment and Directive 1998/83 on Drinking Water Quality, the European water quality monitoring practice has been subdivided into approaches focused on the control of the sources of pollution through the application of technologies available and focusing on quality status of receiving environment (Postel, 2008). This is because both approaches have potential shortcomings when applied alone in view of the fact that source controls do not account for the cumulative toxic effects of contaminants where there are a number of sources of pollution. Moreover, the diffuse impacts cannot be estimated since quality standards applied to water bodies can underestimate the effects of particular substances on ecosystems due to a lack of scientific knowledge, whilst this may also lead to a water body’s gradual degradation (Nizhny Novgorod State University of Architecture & Civil Engineering, 2005).
Articles 10(1) and (2) of the WFD also meant that there was a need for the best available techniques to be used for source-based control and also established a framework that comprised the development of a list of priority substances on the basis of risk under Articles 16(3) and (4) along with Annex X to achieve “the progressive reduction of discharges, emissions and losses of the substances concerned” and “cessation or phasing-out of discharges, emissions and losses of the substances”. Moreover, the WFD’s implementation also meant the EU member states could establish their own standards for the pollutants that have not been included in the aforementioned priority list where they are important to a certain Member State under Article 2(15) (Nizhny Novgorod State University of Architecture & Civil Engineering, 2005). As a result, the WFD needs analysis of the state of water bodies along with “a review of the impact of human activity on the status of surface waters and on groundwater” under Article 5(1) (along with Annexes II & III). The analysis and review undertaken is then to be conducted to determine how far from the objectives each body of water in the EU is from meeting required standards and whether a full implementation of all of the existing legislation across the EU can comply with all the objectives of the WFD and, where it does not, it must be identified why so additional measures can be implemented to resolve such problems (Nizhny Novgorod State University of Architecture & Civil Engineering, 2005).
As for the matter of the rules under the WFD being implemented within the frameworks established in Non-EU member states to enhance water services it is interesting to consider the position in the US. This is because there are several discernible similarities when it comes to what is provided in this regard under the WFD and the US Clean Water Act 1972 regarding the reference to unimpacted water bodies, the establishment of water quality standards, criteria for downgrading standards, and provisions for no further degradation and undesirable substances (Mukhtarov, 2009 & UNECE, 2001). At the same time, however, it is arguable there is scope for the WFD’s provisions to be adapted and applied in the US because there are also some significant differences when compared to the Clean Water Act 1972 (Kidd & Shaw, 2007). However, the WFD is one of the most advanced water legislations recognised anywhere in the world since it details a process for achieving i) the integration of various water-related sectors, ii) the participation of various interest groups in decision making processes and iii) the selection of actions based on an economic scrutiny. In this respect the WFD can be an inspiration to solve water management challenges in countries – especially in those countries where the legislation does not provide clear guidance on how to achieve Integrated Water Resources Management (SPI-Water Project, 2005).
By way of illustration, the WFD has a significantly broader scope in view of the fact that it covers the standards of freshwater and groundwater, whilst the Clean Water Act 1972 is more focussed on navigable waters (although Congress may revisit the issue due to the limitations of the Supreme Court’s ruling in Rapanos v. US (2006) 547 US 715 that sought to challenge the Clean Water Act 1972. The enactment of the WFD within the EU also served to make provisions for diffuse pollution, whilst the Clean Water Act 1972 focuses almost exclusively on point source pollution and, whereas the WFD requires planning at watershed level and cost-recovery of water services, this is hardly demanded by American water services (Mukhtarov, 2009). This is largely because, the WFD is founded upon the ‘3Es’ of Integrated Water Resources Management – (a) economic (cost-recovery principle); (b) environmental (no further degradation); and (c) ethical (public information and involvement) (Kidd & Shaw, 2007). Therefore, using, wherever appropriate, the policy principles and the tools that have already been developed under the remit of the WFD in association with Directives 1991/271 and 1998/83 on Drinking Water Quality could facilitate the development of sound water management practices in non-EU countries for sustainable drinking water and sanitation projects in a way other countries like the US have lost sight of in the development of their water policies (Euro-Mediterranean Information System on Know-How in the Water Sector, 2005).
To conclude, it is clear some of the key principles in Directives 1991/271 and 1998/83 have come to be looked at in the context of the WFD for their combined value in view of the fact that they offered significant value to the EU and its individual member states as combined legislation. This is because the Directives are somewhat flawed individually since source controls do not account for the cumulative toxic effects of contaminants where there are a number of sources of pollution, whilst the diffuse impacts cannot be estimated since quality standards applied to water bodies can underestimate the effects of particular substances on ecosystems due to a lack of scientific knowledge leading to a water body’s gradual degradation. In effect, as this discussion has already alluded to, the WFD has looked to take steps to cover many of the problems and challenges with application and implementation that were recognised under the aforementioned two Directives with a view to improving water services and, in so doing, also enhancing the level of water quality across the EU. Therefore, in view of the broad nature of the WFD and its recognition as one of the most thorough pieces of legislation enacted and implemented in relation to water services and water quality, it is perhaps little wonder that other non-EU countries have looked to the WFD as a reference tool. This is because, as was alluded to regarding the position in the US, whilst (for example) the law in the US was somewhat similar to the WFD there were also some significant differences to be rectified in the future in view of the WFD’s significant provision for enhanced water quality for sustainable drinking water and sanitation projects in a way other countries like the US have lost sight of in the development of their water policies (Euro-Mediterranean Information System on Know-How in the Water Sector, 2005).