Environmental objectives

Separate environmental objectives apply with respect to surface waters, groundwater, and protected areas.

With respect to surface water, Member States are required to prevent deterioration of the status of all bodies of such water and protect, enhance, and restore all bodies of surface water, except for artificial and heavily modified bodies of water/⁶ with the aim of achieving ‘good surface water status’ by 2015 at the latest. There are hence two separate but linked objectives: to prevent deterioration and to achieve good surface water status. Artificial and heavily modified bodies shall be protected and enhanced with the aim of achieving ‘good ecological potential’ and ‘good surface water chemical status’ no later than 2015. Member States shall also progressively reduce pollution from priority substances and cease or phase out emissions of priority hazardous substances.^{[1] [2] [3] [4] [5] [6]} (Art 4.)

A surface water body has good surface water status when both its ecological status and its chemical status are at least ‘good’. ‘High’ status is only achieved when a surface water body’s biological, chemical, and morphological conditions are all subject to no or very low human pressure. (Art 2.)

The ecological status of surface water, which is an expression of the quality of the structure and functioning of aquatic ecosystems associated with surface waters, is classified by the respective Member State in accordance with Annex V as either ‘high’, ‘good’, ‘moderate’, ‘poor’, or ‘bad’d⁸ Among the quality elements to be considered for the classification of ecological status are, using rivers as an example, biological elements such as composition and abundance of aquatic flora and fish fauna, quantity and dynamics of water flow, oxygenation conditions, salinity, acidification status, and nutrient conditions.^w This enables the classification to be based on consideration of local and regional conditions. However, the WFD (Section 1.4.1 of Annex V) provides a process to ensure comparability between the biological monitoring results of Member States, thereby aiming for a harmonised approach to defining good ecological status. It requires the Member States’ biological monitoring results and their monitoring system classifications to be compared through an intercalibration network composed of monitoring sites in each Member State and in each ecoregion of the Union. The value for the boundary between the classes of high and good status and the value for the boundary between good and moderate status, established through the intercalibration exercise, are set out in a decision by the Commission^⁰

Surface water chemical status is deemed to be good when concentrations of pollutants do not exceed established EQS. As will be discussed further in section 10.2.7, chemical EQS are now set out in the Directive on EQS in the field of water policy (Directive 2008/105/EC)2i (Art 2). Since these, unlike the biological quality elements, are set directly at EU level, there is no need for intercalibration.

Establishing, in accordance with Annex V, what constitutes good ecological potential, that is, the ecological objective for artificial and heavily modified water bodies, is often challenging due to lack of a clear natural reference.22

• • To prevent or limit the input of pollutants into groundwater and to prevent the deterioration of the status of all bodies of groundwater;
• • To protect, enhance, and restore all bodies of groundwater and ensure a balance between abstraction and recharge of groundwater, with the aim of achieving good groundwater status no later than 2015;^[7]
• • To reverse any significant and sustained upward trend in the concentration of any pollutant resulting from the impact of human activity in order progressively to reduce pollution of groundwater.^{[8] [9] [10] [11]} (Art 4)

The status of a groundwater body is good when both its quantitative status and its chemical status are at least ‘good’. In order for the chemical status of a body of groundwater to be good, it must meet the relevant conditions in Annex V. ‘Good quantitative status’ is defined in the same Annex. (Art 2.)

With respect to protected areas, the Member States shall achieve compliance with applicable standards and objectives, essentially the Habitats and Birds Directives (Directive 92/43/EEC and Directive 2009/147/EC), by 2015 at the latest, unless otherwise specified in the EU legislation under which the individual protected areas have been established.25 A register must also be established of all areas lying within each river basin district which have been designated as requiring special protection under EU law for the protection of their surface water and groundwater or for the conservation of habitats and species directly depending on water. (Arts 4 and 6.)

Only in a few cases, primarily relating to chemical status, does the Directive lay down clear, numerical criteria for what qualifies as good status. Most criteria to be considered in the assessment of water status are phrased in more general terms.26 Indeed, the legal nature and binding force of the environmental objectives set out in Article 4 have been much debated and different interpretations have been advanced both by Member States and by scholars.2⁷

In 2015, in the Weser case, the Court of Justice added clarity on some important points. First of all it found the objectives set out in Article 4(1)(a)—including preventing deterioration of the status of all bodies of surface water, achieving good surface water status or, for heavily modified bodies of water, good ecological potential and good surface water chemical status—to be binding in nature and involve an obligation on the Member States to act to that effect.2⁸ The Court also held that Article 4(1) entails obligations which must be complied with by the competent authorities when approving individual projects in the context of the legal regime governing the protection of waters. A Member State is thus required to refuse authorisation for any project that will result in deterioration of the status of the body of water concerned or jeopardise the attainment of good surface water status, unless the project is covered by a derogation.2⁹

Thus inevitably rises the question: what constitutes deterioration of the status of a water body in this regard? In the absence of a definition in the WFD, the Court of Justice found there to be deterioration as soon as the status of at least one of the quality elements (as defined in Annex V) falls by one class, even if that fall does not result in a fall in classification of the body of surface water as a whole.^{[12] [13] [14]} This obligation to refuse authorisation for individual projects provides a potentially powerful instrument for protecting water bodies, even though its effect is limited to projects that require authorisation. At the same time it is likely to have far-reaching consequences for the ability to establish or expand industrial operations and infrastructure installations in the vicinity of water bodies and is bound to be criticised for not allowing desirable flexibility or the taking of a more holistic approach to the environmental quality of a region or a water body. Some uncertainty also remains as to the exact scope of this obligation, that is, when and where degradation is to be established.

• [1] On priority hazardous substances see further below in the subchapter on groundwater.
• [2] However, ‘poor’ and ‘bad’ are only very briefly defined.
• [3] The quality elements for other kinds of waters, ie, lakes, transitional waters, and coastal waters,are partly different. Annex V.
• [4] Commission Decision 2013/480/EU establishing, pursuant to Directive 2000/60/EC of theEuropean Parliament and of the Council, the values of the Member State monitoring system classifications as a result of the intercalibration exercise and repealing Decision 2008/915/EC [2013] OJL 266/1.
• [5] However, ‘established EQS’ covers all EQS that may be established under other relevant EUlegislation.
• [6] On this problem see, eg, A M Keessen and others ‘European River Basin Districts: Are TheySwimming in the Same Implementation Pool?’ (2010) 22Journal of Environmental Law 197—221,203.
• [7] This is to be done in accordance with the provisions of Annex V.
• [8] Measures to achieve trend reversal shall be implemented in accordance with paras 2, 4, and 5 ofArt 17.
• [9] Regarding which areas count as protected areas, see Annex IV. Among these are areas designatedfor the abstraction of water intended for human consumption, nutrient-sensitive areas, and areas designated for the protection of habitats or species where the maintenance or improvement of the status ofwater is an important factor in their protection, including relevant Natura 2000 sites.
• [10] 26 Regarding these open criteria and the possibility of achieving effective and consistent applicationof the environmental targets see M Lee ‘Law and Governance of Water Protection Policy’ in J Scott (ed)Environmental Protection: European Law and Governance (Oxford University Press, 2009) 27—55, 36 et seq.
• [11] On the varying interpretations and the resulting problems for the implementation of the WFDsee J J H van Kempen ‘Countering the Obscurity of Obligations in European Environmental Law: AnAnalysis of Article 4 of the European Water Framework Directive’ (2012) 24 Journal of Environmental Law 499-533.
• [12] Case C-461/13 Bund fur Umwelt undNaturschutz Deutschland ECLI:EU:C:2015:433, paras 31and 43.
• [13] Ibid, para 50.
• [14] The Court added that if the quality element concerned is already in the lowest class, any deterioration of that element constitutes deterioration. Case C-461/13 Bund fur Umwelt (n 28), para 70.