Less stringent objectives Yes/no? – How? Diederik van der Molen Project leader Water Framework Directive Member of Strategic Coordination Group 19 May 2019

Content Process Technical aspects / questions for the way forward (Ecostat?) Some ideas for the way forwards Ministry of Infrastructure and the Environment 19 May 2019

Member states initiative to address timeframe WFD Started a year ago in preparation of Dutch Presidency MS wanted to give input to EC review process Initiative of Water Directors COM preferred to wait untill the evaluation all RBMP-2 No roadmap towards 2019 review Ministry of Infrastructure and the Environment 19 May 2019

Thought starter By Water Directors of: DE, UK, FR, BE-FL, BE-WAL, SWE, ES, PL, SK, MT, NL  Content What will be beyond 2027? Communication on the progress that is being made Public participation Cost recovery Chemicals Clever monitoring and integration with other directives Harmonisation of directives Prepared for the WD meeting Amsterdam (9-10 June) Ministry of Infrastructure and the Environment 19 May 2019

WD meeting Amsterdam (9-10 June) Provisional roadmap of COM Items of “thought starter” may feed into review process Except for: What will be beyond 2027? WFD: meeting objectives in 2015, with max 2 times 6 y extra Objectives not met in 2027: less stringent objectives In RBMP 2021 (and this process has started already) Minutes of WD meeting: “They also recognise the need to urgently work to better understand the challenges with regard to the deadline of 2027 and to develop options to enable continuous and ambitious national implementation regarding specifically the third WFD cycle but also beyond. This common understanding on the 2027 challenges should be developed well before decisions must be taken on the third planning cycle as of 2018, which means that a parallel discussion process will be started.” Recognition that the issue is not only technical, also political Ministry of Infrastructure and the Environment 19 May 2019

Extra WD meeting Brussels (6 October) Arguments of MS Frame of “less stringent objectives” does not reflect national ambition WFD needed for new substances (pharmaceuticals, microplastics) Alignment of policies takes more time than expected (e.g. delay of COM Strategy on pharmaceuticals, greening CAP, ....) Intercalibration is still going on in 2016! Causes of not meeting objectives still sometimes unknown Cost-effectiveness of certain measures Position of COM No need to apply “less stringent objectives” (art. 4.5) in 2021 Phased objectives (art 4.4) can also be applied in 2021, because of “natural conditions” (art 4.4.c) Ministry of Infrastructure and the Environment 19 May 2019

Conclusion of the extra WD meeting Brussels (6 October) “WD agree to work together to avoid the risk of Member States considering themselves to have no other legal option than to rely on setting less stringent objectives under article 4(5) in the 2021 RMBP for water bodies for which it would be feasible to achieve good status in the longer term. WD consider that this use of 4(5) in 2021 RBMP may bring as a consequence that the objectives and therefore the overall level of ambition are actually lowered. WD are committed to explore options to keep the level of ambition in the 2021 to 2027 period and beyond.” Ministry of Infrastructure and the Environment 19 May 2019

Conclusion of the extra WD meeting Brussels (6 October) “ WD agree that article 4(4) can still be applied in the 2021 RBMP and committed to continue the discussion including the following elements: clarification on the use of 4(4) and 4(5) in future RBMP; natural conditions are a legitimate reason under article 4(4) to extend the deadline beyond 2027 and WD agree that it would be useful to further clarify this concept within the CIS process. ” WD agree that they will continue the discussion at the next meeting in Bratislava with a view to agree on further steps including on how the results of the discussion process can be transformed into a reliable basis for river basin management planning by MS. Ministry of Infrastructure and the Environment 19 May 2019

EU Environment Ministers (17 October) Council conclusions on Sustainable Water Management Adopted by EU Environment Ministers on 17 October Paragraph 16: “NOTES that the WFD will be reviewed by the Commission in 2019 and hence that the time available for preparation is short; and CALLS upon the Commission to work with the Member States to develop, well before the 2019 WFD review, timely and legally sound options to enable continuous and ambitious national implementation by 2027 and beyond, taking into account the prevailing and new challenges to water management planning.” Wide support of all MS Ministry of Infrastructure and the Environment 19 May 2019

Framing: how one-out-all-out misfits with real world Chemical status in Dutch part of Rhine catchment in 2015 We are here In 66% of the water bodies 1 or more of >40 substances exceeds EU standards Ministry of Infrastructure and the Environment 19 May 2019

In fact: only 214 exceedences of fluoranthene Only non-ubiquitous: in 58% of the water bodies 1 or more of >35 substances exceeds EU standards In fact: only 214 exceedences of fluoranthene and 92 nickel, based on 2013 standards Ministry of Infrastructure and the Environment 19 May 2019

So, in RBMP of 2021…. “Less stringent objective” for water bodies that are expected not to reach 2008 standard in 2027 for fluoranthene? Or is this “natural condition” due to dilution and slow degradation (even if there still may be some emission)? => art 4.4.c? “Phased objective” for the same and more water bodies if the 2013 standard of fluoranthene will not be met in 2027? Motivation needed per substance and quality element but exemption expressed per water body? Same procedure for ubiquitous substances? Should a “less stringent objective” actually be derived? For fluoranthene we already have: 0,1 ug/l (EQS 2008), 0,0063 (EQS 2013), concentration in 2021 In EQR or status class? Ministry of Infrastructure and the Environment 19 May 2019

Ecology and “natural conditions” => application of art. 4. 4 Ecology and “natural conditions” => application of art. 4.4.c or art. 4.5? Waiting for the effect of measures taken previously (what if measure is planned in 2025? Apply 4.4.c to be sure...?) Mercury EQS standard not met in 2021/2017: Alignment of EU law with the International Convention on Mercury (the Minamata Convention) Release of P from sediments in lakes? There will still be some anthropogenic input.... Release of P from agricultural P saturated soils? Effect of invading species? What if heavily modified water body is still not in equilibrium (NL)? What if we don’t know? What if it is more cost-effective to take measure in 2030 (renewal of shoreline needed anyway)? Ministry of Infrastructure and the Environment 19 May 2019

Ecology and “natural conditions” => application of art. 4. 4 Ecology and “natural conditions” => application of art. 4.4.c or art. 4.5? Guidance will be helpful, but... MS may not take the risk to discuss the scope of “natural conditions” for national or EU Court and Apply art 4.5, when there is reasonable doubt.... Ministry of Infrastructure and the Environment 19 May 2019

Art. 4.5: Dream or nightmare for ecologists? Suppose in 2021, we expect fish and macrophytes not to be good in 2027 in ‘lake nonsense’ GES = 0.6 and status 2021 is resp. 0.3 and 0.4 Should we make up/motivate a less stringent objective of e.g. 0.5? This assumes that we are capable of quantifying the reason of not meeting the objective in 2027 and that we are able to motivate 0.5…. A waste of time, as we still aim for GES 0,6 Suppose we motivate a less stringent objective of 0.5 in 2021: What if the status is 0.45 in 2027? Or 0.55? A nigthmare of policy advisors, who try to explain WFD to politicians, stake holders and civilians and try to get support for additional measures… Ministry of Infrastructure and the Environment 19 May 2019

2015: phased objectives cf. art. 4.4 status status 2034 2015: phased objectives cf. art. 4.4 2021: less stringent objectives cf. art. 4.5 2027: less stringent objective cf. art. 4.5 Ministry of Infrastructure and the Environment 19 May 2019

Conclusions (1) We need a timely and legally sound solution to prevent “less stringent objectives” “Legally sound” Policy statement (from Com) may be sufficient for the process in next years Legal option is needed for (draft) RBMP 2021 (<> court cases) “Timely” Transposition of ‘legal option’ into national legislation takes about 1 year in the NL Com ‘legal option’ available dec 2020 This transposition probably already needed for draft RBMP Com ‘legal option’ available dec 2019 Ministry of Infrastructure and the Environment 19 May 2019

Conclusions (2) NL’s suggest that we need more guidance/guidelines how to deal with the issue technically Both for the chemical and ecological status NL’s suggest that we aim at a pragmatic and explainable approach for the application of art. 4.5: No numerical “less stringent objectives” (in 2027) No assessment of the “less stringent objectives” (in 2027) But application of GES/GEP standards & assessment procedure Validation of less stringent objectives by proper use of preconditions of art. 4.5 Role of Ecostat? Ministry of Infrastructure and the Environment 19 May 2019

Thank you for your attention! Ministry of Infrastructure and the Environment 19 mei 2019