"Water is not a commercial product like any other but, rather, a heritage which must be protected, defended and treated as such ...It is necessary to develop an integrated Community policy on water."
(Excerpt from the recitals to the European Water Framework Directive)
The Water Framework Directive of the European Community entered into force on 22 December 2000. Its publication in the Official Journal marked the beginning of an integrated water protection policy in Europe, establishing the coordinated management of waterbodies within river basin districts that transcends national and regional boundaries. The Federal Environment Ministry welcomes the Water Framework Directive for helping to harmonise water protection within an expanding Community and improving the status of waterbodies.
The Directive's appeal is its consistent application of an holistic approach to waterbodies, especially from an ecological viewpoint, while also regulating specific details. Both of these aspects are reflected in particular in its:
- consistently extensive, river basin district-related approach
- waterbody type-specific approach
- combined approach to contaminants (emissions and their impacts)
- parameter-related approach for substances and groups of substances.
Once the defined transitional periods (seven and 13 years respectively) have elapsed, a total of seven existing EC Directives with sectoral, usage-specific approaches to water protection will be repealed. In particular, the Directive is expected to lend impetus to a more ecologically-focused, holistic approach to water protection. The management elements and immission-related tools already anchored in German water legislation will be more widely used. Economic considerations have been given greater priority as well. The provisions of the Water Framework Directive, especially its call for the integrated management of waterbodies according to river basins, will further enhance the generally high standards of water protection in Germany.From the date of entry into force, the deadlines prescribed by the Directive for its legal and material enforcement in the Member States will come into play. For the federal structure in Germany, this means that the Federal Government and Länder will need to coordinate carefully with one another if they are to achieve a good water quality in Germany within 15 years.
Below, we give a more detailed insight into the Directive under the following headings
How the Directive came about
In February 1996, the European Commission embarked upon a series of consultations on water policy in the European Union. These consultations formed the basis for a Commission proposal for a Directive establishing a framework for Community action in the field of water policy, which was submitted one year later.
After extensive discussions between the relevant parties and in the Council in Brussels, and following multiple amendments, the draft Directive was subsequently presented to the European Parliament, which suggested a number of changes at its first reading in February 1999. Some of these suggestions were incorporated into the joint opinion of the Council of the European Union of October 1999, which failed to win a majority at the draft’s second reading before the European Parliament in February 2000, necessitating a conciliation procedure. After a lengthy period of negotiations, the conciliation process begun in May 2000 was successfully concluded in June 2000 under Portugal's Presidency. The compromise was accepted by the Council and the Parliament in September 2000.
The Directive creates a regulatory framework for the protection of inland surface waters, transitional waters, coastal waters and groundwater. The overall objectives are defined in Article one:
- to protect and enhance the status of aquatic ecosystems and groundwater, including terrestrial ecosystems directly depending on the aquatic ecosystems
- to promote the sustainable use of available water resources
- to progressively reduce priority substances and to cease or phase-out discharges, emissions and losses of priority hazardous substances
- to reduce groundwater pollution
- to mitigate the effects of floods and droughts
The actual, binding environmental objectives are defined in Article four, the central provision of the Directive. The following objectives apply to surface waters:
- good ecological and chemical status in 15 years
- good ecological potential and good chemical status for heavily modified or artificial waterbodies in 15 years
- no further deterioration
For groundwater, the Directive sets out the following objectives:
- good quantitative and chemical status in 15 years
- reverse significant upward trends in pollutant concentrations
- prevent or limit the input of pollutants
- prevent deterioration in the status of groundwater
With regard to groundwater protection, the European Parliament and Council are to adopt special measures to reduce and limit pollution. In this connection, the European Commission was to submit suitable proposals within two years of the Directive's adoption. One such proposal for a Directive of the European Parliament and of the Council on the protection of groundwater against pollution and deterioration was submitted by the European Commission in September 2003. The Groundwater Directive of 12 December 2006 entered into force on 16 January 2007.
The Directive allows for the separate designation of artificial and heavily modified bodies of surface water. However, heavily modified waterbodies may only be designated as a last resort, following careful analysis of possible improvement measures. For such waterbodies or sections of waterbodies where a good ecological status cannot be restored, or only at disproportionate expense, and if certain uses such as hydropower, shipping or flood protection would be decisively impaired by the measures required to achieve a good ecological status, the requirements may be downgraded to achievement of a good ecological potential, rather than a good ecological status. The definitions of good ecological status and good ecological potential may be found in the tables in Annex V to the Directive. The requirements governing the chemical quality of waterbodies, for example contamination levels, are unaffected by this, and are equally applicable to waterbodies that have been designated as heavily modified.
The designation of heavily modified waterbodies necessitates careful analysis, not only with regard to existing waterbody status, but also to changes associated with future measures. Consideration should likewise be given to more environmentally friendly alternatives during this process.
Every Member State is responsible for fulfilling the tasks outlined in the Directive. The principal tasks include the following:
Inventory (current status)
Definition of objectives (target status)
Definition of measures to achieve these objectives.
- designation of river basins
- allocation to international river basin
- analysis of river basin characteristics such as:
- definition of types of surface water
- definition of reference conditions and measuring sites
- characterisation of groundwater bodies
- reviewing the effects of human activities
- formulation of significance criteria
- specification of monitoring methods
- assessment of water status
- implementation of economic analysis
- enforcement of the principle of full cost recovery
- definition of management plans and programmes of measures
Transposition of the WFD into national law
The Directive was transposed into national law via amendments to the Federal Water Act (WHG) and water legislation of the Länder, as well as the adoption of ordinances at Länder level. The amended Federal Water Act entered into force on time in June 2002. All Federal Länder have likewise adapted their water legislation to implement the Directive.
Federal Water Act
A comprehensive implementation of the WFD in the Federal Water Act was not possible at that time, since the Federal Government's powers were limited to passing framework legislation at that time (Article 75 of the German Basic Law (GG)). Only the general intent of the Directive was incorporated into the 2002 version of the WHG, while regulatory tasks in particular were assigned to the Länder for implementation.
The Act Amending the Federal Water Act of 31 July 2009 introduced a fundamental reorganization of German water legislation. Its origins lay in the Federalism Reform of 2006, which reorganised legislative powers of the Federal Government and the Länder. The environmental protection sector was particularly affected by the shift in legislative competency from framework to concurrent. One reason for the Federal Government to make use of its new powers were the problems that had arisen in transposing EC law into German law under the existing framework legislation. Consequently, one of the aims of the water legislation reform was to make German environmental legislation more "European", by creating the requirements for the uniform, nationwide implementation of European provisions on water. The two-tier implementation of EC water legislation (at Federal and Länder level) was to be discontinued.
The new Federal Water Act (WHG) entered into force on 1 March 2010. Essentially it builds on the preceding Act and incorporates the following aspects of the WFD:
- expansion of scope to include sustainable waterbody management and the protection of ecosystems that depend directly on waterbodies; priority of local water supply
- adoption of some definitions from the WFD (e.g. river basin district, river basin)
- the principle of river basin management and the mandatory requirement for national and international coordination
- inclusion of management objectives for waterbodies in accordance with the structure of the WHG: good ecological and chemical status of surface waters and coastal waters, good ecological potential and good chemical status for artificial and heavily modified waterbodies (exemption) under the WFD), good quantitative and chemical status of groundwater
- regulation of exemptions and deadline extension options under the WFD; twelve years; under certain circumstances (for example opposing overriding public interests, proportionality considerations) less stringent objectives may be aspired to and, for artificial or heavily modified waterbodies, reduced targets may be defined. These cases, however, require extensive justification, and exemptions and extensions must be reviewed at regular intervals and adjusted where necessary.
The new WHG replaces the Federal Government's former framework legislation in the water management sector with directly applicable provisions and transfers the regulation of details, necessitated by the extensive provisions of EC law, as far as possible to the level of ordinances. The Groundwater Ordinance is a typical example of the new uniform, nationwide implementation of EC water legislation, which was adopted by the Federal Government under the new powers afforded to it by the amended WHG. In accordance with Article 72 of the German Basic Law, the Länder may adopt ordinances that deviate from national law, provided these do not relate to substances or facilities. Some Länder have already adapted their water legislation in line with the new legal status, while others are still in the process of updating.
Groundwater Directive and planned Groundwater Ordinance
Directive 2006/118/EC of the European Parliament and of the Council of 12 December 2006 on the protection of groundwater from pollution and deterioration entered into force on 16 January 2007.
The new Groundwater Directive contains:
- Criteria for the characterisation of chemical groundwater status:
- standards and procedures for assessing this status
- uniform EU-wide quality standards for nitrate and pesticides
- A minimum list of parameters for which national threshold values (national quality standards) are to be derived
- Criteria for the derivation of these values:
- criteria for identifying significant and sustained upward trends in pollutant concentrations
- regulations governing the reversal point for such trends and
- measures to prevent or limit the input of contaminants into groundwater
The principal element of the Groundwater Directive is that it distinguishes a good qualitative groundwater status from a bad status on the basis of "limits" (uniform EU-wide quality standards and threshold values to be defined at national level). Groundwater is considered to have a good status if these values are not exceeded at any measuring site. If the value is exceeded at one or more measuring sites, an individual investigation should be conducted to determine whether the uses or (ecological) functions of the groundwater are threatened. If so, the groundwater body is classed as having a bad status. Suitable measures must be taken to improve a groundwater body with a bad status, with the aim of achieving a good status by 2015. Similarly, measures must be taken to reduce groundwater pollution if upward trends in pollutant concentrations are observed. Reduction measures must be implemented if pollutant concentrations exceed 75% of a quality standard or threshold value. In order to allow for preventive groundwater protection, analogous to the old Groundwater Directive (80/68/EEC) of December 1979, provision has been made to prevent the input of particularly hazardous contaminants and to limit the input of less harmful substances. Best environmental practice and the best available technology in accordance with the relevant Community provisions are to be used as a basis.
After the 2006 Federalism Reform had created the necessary requirements, the Federal Ministry for the Environment, Nature Conservation and Nuclear Safety comprehensively and directly transposed the EU provisions on groundwater protection into a federal ordinance. The new Groundwater Ordinance of 9 November 2010 (Federal Law Gazette (GBGl.) I, page 1513) entered into force on 16 November 2010.
At its core, the Ordinance on the Protection of Groundwater specifies uniform threshold values for the characterisation and assessment of chemical groundwater status. In addition to determining the extent of the area where threshold values are exceeded, the following principles must be considered when classifying the status of a groundwater body under EU provisions: A groundwater body shall be considered to have a good status if analysis indicates that:
- there are no salt or other intrusions (evidence of conductivity)
- the objectives for connected surface waters are not threatened and the ecological or chemical quality of these surface waters is not significantly impaired
- dependent terrestrial ecosystems are not significantly damaged, and
- the quality standards and relevant threshold values are not exceeded at any measuring site in the groundwater body
The monitoring programmes required to review and assess groundwater status, which are currently still regulated by Länder ordinances implementing Annexes II and V of the Water Framework Directive, have likewise been incorporated into the new Federal Groundwater Ordinance for reasons of coherence and easier enforcement. The Ordinance also facilitates and regulates the steps for identifying and assessing significant upward trends in pollutant concentrations on a uniform, nationwide basis.
Management and coordination in river basins
Coordinated management within river basins pursuant to Article 3 is a central element of the Directive, and the German water industry has adapted to this principle. Previously, management had been based primarily on the political boundaries of regional and local authorities. Prior to the Water Framework Directive's entry into force, there was very little uniform management of river basins apart from the work carried out by the water associations and river basin-related planning of certain sub-tasks, such as wastewater disposal.
The Directive requires Member States to ensure that the requirements of the Directive, particularly the management plans and the programmes of measures, are coordinated for the entire river basin. With international river basins, responsibility for coordination should be shared between the participating states. A management plan is to be prepared for each national and international river basin district. Where non-Member States are affected, Member States should at least aim to achieve a single management plan.
The preparation of management plans and programmes of measures entails a wide range of work activities, from data collection and assessment, to the setting of targets, and finally, the execution of measures. Annex VII of the Water Framework Directive states that the management plan should include a general characterisation of the river basin including the groundwater, a summary of all significant pressures and human impacts on the waterbodies, mapping of the protected areas and the monitoring network, a list of environmental objectives for the waterbodies, a summary of the economic analysis and all measures and programmes of measures, a list of competent authorities and a summary of information and consultation measures to involve the public in the preparation of the management plan.
The management plan and the programme of measures must be updated at six-yearly intervals. The management plan should also outline and regularly document the anticipated success or subsequent failure of the measures, as well as any exemption provisions utilised. It thus becomes a control mechanism for those involved in river basin management, as well as for the European Commission.
In order for river basin-related coordination to be effective, it will be important to limit the scope to the minimum necessary to achieve the objectives. Only in this way will it be possible to find a satisfactory solution within the relatively short time frame allowed for implementing the Directive. As such, coordination is primarily a management task and requires an institution to draw all the threads together. The existing water authorities will be responsible for implementing the Directive and elaborating the content.
The map of river basin districts shows the assignment of rivers to river basins in Germany.
It is in the Federal Republic of Germany's interest to ensure the identical, comparable, nationwide implementation of the obligations arising from the Directive, despite the river basin-related approach. For this reason, uniform national provisions e.g. on the designation of heavily modified waterbodies, significance criteria for pressures, ecological assessment and data preparation, need to be agreed within Germany, following the principle that the criteria and principles are drafted and specified at national level (and in some cases at EU level) and then implemented in the river basin.
The combined approach under Article 10 of the Water Framework Directive for discharges from point sources and diffuse sources into surface waters provides, firstly, for the specification of emission values and the associated definition of the best available technology, and secondly, for the definition of immission-related quality objectives for the waterbodies themselves. If a waterbody exceeds the quality objectives, more stringent emission limits must be set. This principle is already applied by the German water industry.
Up-to-date information on priority substances may be found here.
The Directive sets out a timetable for the completion of statutory implementation, the inventory, the monitoring programmes, the management plans and the programmes of measure, and in particular, the deadlines by which the objective of a good waterbody status must be met.
Until now, Member States were required to submit four reports to the European Commission:
- List and map of competent authorities including international institutions pursuant to Article 3 (8) and Annex I of the WFD (11 June 2004)
- Report pursuant to Article 15 (2) on analysis pursuant to Article 5 of the WFD (inventory 2004) (22 March 2005)
- Report pursuant to Article 15 (2) on the monitoring programmes pursuant to Article 8 (22 March 2007)
- Report pursuant to Article 15 (1) on management plans, including a summary of the programmes of measures pursuant to Article 13 and Annex VII (22 March 2010)
Public information and consultation
Article 14 of the Directive calls on Member States to promote the active involvement of all interested parties and to inform and consult the general public. This applies, firstly, to the preparation and subsequent updating of management plans in the respective river basins. To this end, the timetables and work programmes for the preparation of management plans and an overview of the key water management issues in the river basins had to be published in due time, no later than the end of 2006 or 2007 respectively. Subsequently, the draft management plan had to be published for consultation purposes by the end of 2008 at the latest. The general public should be given an opportunity to submit written opinions at all three stages. Upon request, background information and documents must also be made available.
The Directive also states that the early, active involvement of the general public prior to this three-stage consultation on the management plan is to be encouraged. This makes the entire planning process transparent, allows conflicts to be identified and potentially resolved early on, enhances acceptance of the plans and creates a basis of trust between the authorities and those affected by the measures. A wide range of successful activities in this connection have been initiated in the Federal Länder.
Cost-recovering water prices
The Directive stipulates that:
- Member States must consider the principle of cost recovery for water services. Allowance must also be made for environmental and resource costs.
- Water prices must suitably incentivize the efficient use of water as a resource.
- With regard for the polluter-pays principle, the various users must make suitable contributions.
Member States may incorporate social, geographical and economic impacts as well as environmental aspects into the implementation. The requirement for cost-recovering water prices was to be implemented by 2010. Viewed as a whole, Germany has already achieved a high level of cost recovery in its water prices.
The WFD calls for a coherent river basin management concept. Coordination needs to transcend Länder and national borders, which in turn poses new organisational challenges for the German water industry. It was generally possible to make use of the existing structures and authorities for the implementation of the WFD at both national and international level, but some adaptation was needed, especially in the international sector. Furthermore, coordination bodies and levels had to be set up to meet the WFD's requirements for harmonisation. The WFD required notification of the authorities and structures responsible for implementation to Brussels by mid-2004.
At national level, coordination committees have been set up in the relevant river basins which operate on either an informal or a more or less formalised basis (e.g. treaty, administrative agreement), involving the competent administrations. The committees are considering involving the water administrations of neighbouring Member States at this stage as well so as to achieve agreement early on and avoid differences of opinion.
Each river basin adopts a different approach to coordination depending on its size and the participating Länder and/or countries.
The WFD poses major challenges for all participants, especially the Federal Länder. These challenges must be overcome in order to strengthen integrative water protection. In view of the deadlines imposed by the WFD, the requisite financial, personnel and organisational decisions must be made promptly. The legal and technical requirements for implementing the Directive must be put in place in a timely fashion so as to create a sound basis from which to tackle the necessary work. With effective, close collaboration between the Federal Government and the Länder, which has already proven very helpful during consultations about the Directive and preparations for its implementation, the German Government is confident of successfully implementing the WFD on time.