Miljø- og Fødevareudvalget 2023-24
MOF Alm.del
Offentligt
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CONCEPT 14/2/2024
Non-paper
‘Deterioration’ WFD
Supported by:
[Denmark], [Finland], [Germany], [Luxembourg
and] the Netherlands
The Commission launched a proposal for a Directive amending the Water Framework
Directive (WFD), the Groundwater Directive and the Environmental Quality Standards
Directive (October 2022). At the end of 2023, under the Spanish Presidency, the
members of the WPE held informal VTCs to discuss the Presidency’s
suggestions to
modify the Commission proposal.
The Commission’s proposal deals with several items that relate to the main goals of the
WFD, in particular
the obligation to prevent ‘deterioration of the status of a body of
water’.
The
Commission’s
proposal to add new or stricter EQS, impacts the application of
the deterioration ban.
‘Deterioration of the status’
is not defined in the WFD. Instead, it
is outlined in Court rulings.
As a general principle, we emphasize that we support the overall ambition of the WFD
and the related directives. We do not aim to lower that ambition, nor an overall revision
of the Directives. We merely aim to address two specific issues with the concept of
‘deterioration of the status’,
that are both impacted by the current Commission proposal:
1) The ruling of the EU Court of Justice (C-525/20, ‘France Nature’, 2022)
established that also temporary short-term impacts without lasting consequences
should be taken into account when assessing programmes and projects, unless
such impacts do not comprise a deterioration of the status of a body of water.
Hence, every deterioration of status, no matter the duration, can only be
authorized by applying Article 4(7) WFD. This is, however, not necessary to
achieve the overall goals of the WFD. At the same time, this ruling hampers
projects in water bodies to a significant extent. Moreover, this ruling may even
affect projects, like renaturation of water courses, aimed at improving water
quality and thus has an adverse consequence on the aim to reach good status.
This problem is further aggravated by the proposal to add new or stricter EQS.
2) Further clarity of the concept of ‘deterioration’ is needed for projects that only
relocate already existing pollution. The proposed new or stricter EQS should be
achieved within clear deadlines. To this end, these EQS should be used when
authorizing activities that cause an addition of these substances to water bodies.
It is, however, undesirable that these EQS also apply to the authorization of
specific activities that only relocate already existing pollution and do not cause an
addition of these substances. Examples of such activities are discharging
previously abstracted groundwater at building construction site onto surface
water and discharges of previously abstracted cooling water. Another example is
the redeposition of previously dredged sediments e.g. for flood protection. These
activities should not be hampered by the EQS to the same extent as activities
that do bring chemicals into the environment, as long as they do not cause a net
negative effect (meaning there is no additional load, net increase in
concentration, or extra exposure of previously isolated substances to surface
water). This is specifically an unwilling outcome with regard to Persistent,
Bioaccumulating and Toxic (PBT) substances which are already widespread in the
environment (ubiquitous) and which already exceed the EQS. Moreover, there
often is no (cost-efficient) way to remove these pollutants before relocation. This
is problem further aggravated by the proposal to add new or stricter EQS.
 MOF, Alm.del - 2023-24 - Endeligt svar på spørgsmål 872: Spm. om, at Danmark sammen med Holland, Østrig, Tyskland, Finland og Luxembourg 22/2-24 har fremlagt et papir, som vil indebære en afgørende ændring af kommissionens forslag af 26/10-22 til ændring af vandrammedirektivet, grundvandsdirektivet og vandkvalitetskravdirektivet vedrørende one-out-all-out-princippet
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We are of the opinion that there is the need to clarify the concept of ‘deterioration’ in the
WFD regarding
the Commission’s proposal. This is also
mentioned in the Presidency
Steering Note (6
th
December 2023). This concept should be clear in order to discuss the
scope and consequences of the proposals of the Commission to its full meaning. To this
end we propose to introduce
a definition of ‘deterioration of status’. This definition
should be constrained in such a way that the overall goals of the WFD are not
jeopardized.
As a starter for discussion we suggest the following definition (the first paragraph builds
upon the Weser Court ruling (C-461/13), the second paragraph mitigates the recent
ruling on temporary short-term impacts (C-525/20)):
Article 2 (43) ‘Deterioration of the status of a body of water’ means that the
status of at least one of the quality elements within the meaning of Annex V to
this Directive or of at least one of the pollutants within the meaning of Article 2
(24) of this Directive, falls by one class, even if that fall does not result in a fall in
classification of the body of water as a whole. If the quality element or pollutant
concerned is already in the lowest class, any deterioration of that element
constitutes a ‘deterioration of the status’ of a body of water,
unless caused by a
relocation of ubiquitous pollutants without a net negative effect regarding those
pollutants.
If the status of a quality element or substance deteriorates only for a short period
of time, and the quality element or substance is expected to recover within a
short period of time, and it is established that no long-term negative
consequences are expected on the status of the concerned body of water, such
fluctuation does not constitute deterioration of the status of a body of water.
Further clarification of
‘net
negative effect’
and ‘short period of time’ is needed.
Therefore, we propose to specify this in the relevant Guidance Documents.
We call for a discussion in the WPE on the proposal to include a definition of
this concept
of ‘deterioration of the status’ in the WFD.