The Water Framework Directive - Legal Issues for Policy Integration' Scottish University of the Year 2017 The Water Framework Directive - Legal Issues for Policy Integration' Dr Sarah Hendry, Dundee Law School

Introduction and Overview Agreed after 12 years of negotiation - ‘3rd wave’ of EU water law An IWRM instrument – and more Challenges in implementation – and emerging judgments from the European Court of Justice Gaps in content – what could and should be added?

Legal and Policy issues – Obligations of process or result; The meaning of Good (and its derogations); Costs, prices and economic tools.

Legal and Policy issues (1) – obligations of process or result? Member States ‘shall identify the individual river basins …. [and]… shall assign them to individual river basin districts’ (Art.3) Member States ‘shall protect, enhance and restore all bodies of surface water…. with the aim of achieving good surface water status’ (Art.4) Member States ‘shall ensure the establishment ….of a programme of measures’ (Art.11) Member states ‘shall ensure … they publish and make available…[draft plans, etc]’ (Art.14)

Legal and Policy Issues (2) –the meaning of Good Annex V – Hydrology Morphology Chemistry Biology A static picture? Quantifying biology… Drilling down to national level

AHMWBs and Derogations– Muddying the Waters? The derogations – Extensions and exemptions in Art.4 Including future sustainable human developments (4(7)) Not ‘alternative objectives’!! Widely used by states in RBMP1 and RBMP2.… AHMWBs – parallel obligations Very confusing! And should not be further designated – new developments will be under 4(7) Worth keeping? Rmaclean3 - Own work, Public Domain, https://commons.wikimedia.org/w/index.php?curid=5978545

Should ‘Good’ be an obligation – what do others do? IWRM – mapping, monitoring, stakeholder engagement Plans or Strategies – pressures and measures Status classification Legal force Binding norms?

Legal and Policy Issues (3) Prices, Costs and Economic Tools The cost-effectiveness of measures – disproportionate cost for Art.4 derogations Pricing water services appropriately to provide incentives for water users – Art.9 Value(s), and externalities…. Increasing focus from the Commission in RBMP’s 2 and 3… ‘Not putting a price on a scarce resource like water can be regarded as an environmentally-harmful subsidy. Moreover, the narrow interpretation of the concept of water services by some Member States is hindering progress….’ (‘Blueprint’ COM(2012)673, p.10)

How will states – and the Commission - respond? Two difficult cases European Commission v Federal Republic of Germany [2014] Case C‑525/12 ‘water services’ should be broadly interpreted – but, states have wide discretion as to how they recover costs, in line with established practice Bund für Umwelt und Naturschutz Deutschland eV v Bundesrepublik Deutschland (‘Weser’) [2015] Case 461/13 ‘deterioration’ is not only from one status class to another, but, deterioration in any one classification element How will states – and the Commission - respond?

What is missing from the WFD What is missing from the WFD? What could be addressed in the 2019 review?

What is missing from the WFD at present? (1) Floods and droughts and climate change – Floods Directive – incorporate? Win-wins? Drought and Scarcity – policy communications economic measures? Climate change…. © Sarah King (and James), with thanks… .

What is missing from the WFD at present? (2) Agriculture and land use Integral to IWRM, basin planning Nitrates, Pesticides Directives, Agri regs BUT… Who pays for clean drinking water? Or biodiversity?

What is missing from the WFD at present? (3) Ecosystem Services Ecological status; Aquatic (and terrestrial) ecosystems; Groundwater dependent ecosystems; BUT… The missing link for policymakers? Assist with disproportionate cost? Justify ‘win-wins’? source: metrovancouver.org

Conclusions – what key issues, what should change? Climate change Ecosystem services BUT The essence of IWRM, and ecological focus, should remain Fixed structure, developing science Derogations and AHMWBs Good status as a legal obligation? (No extensions in RBMP3s…) ‘….there is a need for better implementation and increased integration of water policy objectives into other policy areas.… insufficient use of economic instruments, lack of support for specific measures, poor governance and knowledge gaps.’ (‘Blueprint’ COM(2012)673 p.4.)

Thank you! s.m.hendry@dundee.ac.uk