A win for water quality

Public authorities must now consider impact on water quality when assessing local projects

Our water is better protected since EU judges took a firm stand on how public bodies should safeguard water quality last month.

Achieving ‘good status’ for our water – a key EU goal for 2015

41% of EU citizens agree water pollution is one of today’s main environmental concerns. EU law plays a vital part in ensuring public bodies protect our water – both improving its quality and preventing deterioration.

The aim of the EU Water Framework Directive is to achieve ‘good status’ for all surface water and groundwater by 22 December 2015. Water is assessed according to key status components, for example, chemical status or ecological status. These components are made up of different quality elements, which are subdivided into individual quality indicators. These are all assessed and given a ‘class’ – for example, very good, good and moderate. This gives the component its overall status rating. Generally speaking, ‘good status’ means the water has low pollution and a healthy ecosystem.

Public bodies are charged with protecting and enhancing water quality. However, this is only half the story. They must also prevent deterioration.

Preventing ‘deterioration of status’

Many activities, such as energy production or shipping, impact on the ecological and/or chemical status of water and can compromise its quality status. Therefore, Article 4 of the directive also requires public bodies to prevent new ‘deteriorations of status’. However, what this term means has been unclear – until now.

Some believe public bodies only have to prevent deterioration that is so severe as to result in the water body being downgraded to a lower quality class. Others suggest public bodies must prevent any deterioration at all – even the deterioration of an individual quality indicator.

This has led to significantly different understandings of what public bodies actually need to do and, as a result, to what extent our water is being protected.

To clear up the confusion, the European Court of Justice (ECJ) gave its opinion in a case dealing with the deepening of a waterway in northern Germany (C-461/13).

In order to allow large container ships to use the Weser river, the German Federal Waterways and Navigation Authority planned to deepen the riverbed. It was clear that the dredging of the riverbed would impact on the river. The authority decided to allow the dredging nonetheless because, despite the project’s negative impacts, they were not severe enough to lower the river’s overall quality class and therefore wouldn’t cause a ‘deterioration’ of the river’s status.

The European Court, however, took a much stricter approach.

So what does Article 4 actually ask of public bodies?

The Court clarified that where an individual project – whether it’s deepening a riverbed for shipping or building a hydropower station – may cause any deterioration of the status of a body of water, the public body in question must refuse to authorise it.

‘Deterioration of status’, the Court decided, refers not only to a change in the water quality class, for example from ‘moderate’ to ‘poor’. It can also be a change to the class of one single quality indicator. This means that if any of the individual quality indicators changes class, this will be considered a deterioration of status.

A win for our water in view of future developments

With this judgment, the ECJ has clarified that EU public bodies must authorise projects affecting ground or surface water only if they do not negatively affect any of the water quality indicators.

Considering the EU’s 27% target for renewable energies, along with the European Commission’s backing for new small-scale hydropower development projects and the refurbishing of existing ones, the Court’s decision is hugely important.

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4 thoughts on “A win for water quality

  1. Gregg

    We have similar issues in the US. Our laws are somewhat different in protecting water, but we face the same enforcement issues as the EU. Water quality is important to us all. Good article, Ms. Hollaus.

    1. Birgit Hollaus

      Thanks for your comment, Gregg. You are absolutely right – water quality is important to us all and better enforcement plays a crucial part in this. A case I’m personally aware of you might be interested in shows pretty well why we need better enforcement and consistency in the application of EU law:
      On Schwarze Sulm river in Austria, a natural and biodiverse river, the building of a hydropower station could go ahead despite its severe negative impacts on water quality because Austrian public bodies flip-flopped their interpretation of the EU Water Framework Directive.

  2. Claudia

    Very interesting read, concicely summing up the crucial points of the court’s decision! May I point out, however, that the official abbreviation for the Court of Justice of the European Union after the Treaty of Lisbon is “CJEU”…

  3. Rose Orlik

    Thanks for your comment, Claudia! Birgit is not behind that abbreviation, we do it to simplify the topic for our non-legal readers. You’re right though, we didn’t make that clear in the text – I’ve amended it now, much appreciated.
    (ClientEarth communications team)

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