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Water Pollution Notes

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Water Pollution Notes
What is the nature of the water pollution problem?
Per Fisher, Scotford and Lange (2019), one of the key challenges for water law is to evolve in to a more holistic, coherent and integrated pollution control regime
An Integrated Approach
An integrated approach is necessary due to the relationship between water use and the use of land and air.
 Water percolates through different environmental media - the natural water cycle sees water continuously transferred between land, sea and atmosphere

Thus, water regulation does not involve the regulation of something static.
 Fisher, Scotford and Lange (2019): Due to the unbounded nature of the regulatory target, it can be particularly challenging to find the right combination of arrows in the regulatory quiver to hit the regulatory target
Water problems are polycentric and transboundary by nature - water does not stay within neatly pre-defined boundaries.
 Water regulation therefore needs to be integrated, holistic and bear some reference to the natural spaces, such as catchments, that it seeks to regulate
Bioregionalism: Foregrounding Space in Water Regulation
Bioregionalism - suggests that the boundaries of natural rather than political space should drive legal regulation of the environment
 For instance, water regulation should build on the natural space of the river basin,
rather than the artificial and abstract category of the boundaries of state offices dealing with water pollution
Dahlberg (2001) has further defined this idea as re-embedding democratic governance in socio-natural systems.
 People, places and nature are the key conceptual categories organizing this form of democratic governance

Region are the primary unit of government within what Dahlberg calls ecological federalism - that is, government that includes representation of living creatures other than humans
 In order to conform to a bioregional approach, we need to change representational borders to better fit natural boundaries
 BUT: Dahlberg's analysis is limited: he does not question how notions of natural space become socially constructed

Blomley and Bakan (1992)'s analysis tells us that law defines and draws upon a complex range of geographical and spatial understandings
 Critical legal geography can contribute in various ways to a critical analysis of law, including environmental law, by questioning the particular representations of space that legal rules construct and draw on, including the constitutional concept of 'federalism'.
 A good example of the close relationship between spatial and legal categories outside of the water context is that of habitats
- the protected species is central to constituting a habitat

How is water pollution regulated at the EU level?
The starting point for understanding regulation of water regulation is the Water Framework
Directive (WFD) 2000.
 The WFD is transposed into English law through the Water Environment (Water
Framework Directive) (England and Wales) Regulations 2017 and various Directions to the Environment Agency
The Directive, in addition, occupies a central position in EU (including UK) water pollution control because it links to other so-called 'daughter' directives which help to achieve the
WFD's objectives,
 For example, the Directive on environmental quality standards in the field of water policy 2008 and the Groundwater Directive 2006
An Overview of the WFD
The WFD is intended to provide a more holistic approach to water quality and pollution issues.
The core obligation is found in Article 4(1)(a)(ii):
In making operational the programmes of measures specified in the river basin management plans:
for surface waters [ … ]
Member States shall protect, enhance and restore all bodies of surface water,
subject to the application of subparagraph (iii) for artificial and heavily modified bodies of water, with the aim of achieving good surface water status at the latest 15 years after the date of entry into force of this Directive, in accordance with the provisions laid down in Annex V, subject to the application of extensions determined in accordance with paragraph 4 and to the application of paragraphs 5, 6 and 7 without prejudice to paragraph 8
Article 4(1)(b)(ii) imposes a similar obligation upon Member States to 'aim to achieve' good groundwater status by 2015, 'ensuring a balance between abstraction and recharge of groundwater'.
The text of the WFD itself does not make it clear whether the Article 4 obligations are merely procedural or are substantive. 

This question was settled in the Bund v Germany case, where the CJEU held that the obligation is substantive - Member States have to achieve the objectives set out in
Article 4, not just put in place the means to achieve these objectives

The CJEU has ruled that Member States must transpose into national law the key terms of the EU WFD, such as 'groundwater status', 'good groundwater status', and 'quantitative status'.
 In Commission v Poland, the European Court of Justice found that Poland had failed to transpose completely or correctly Articles 2(19), (20), (26) and (27), 8(1), 9(2),
10(3) and 11(5) of the EU WFD.
o Poland had adopted legal definitions of key terms that were narrower than the text of the WFD provided for.
Environmental Quality Standards
A further important directive for water quality is the 2013 Directive which amended the
WFD and the Environmental Quality Directive (EQS) Directive.
 The EQS Directive had established environmental quality for 33 priority substances which are included in Annex X WFD, and eight other pollutants.
o The revision of the list of priority substances through the 2013 Directive highlights the dynamic nature of environmental law and hence the evolution of standards in the light of new scientific knowledge
The Directive provides two further innovations:

1. The establishment of a watch list of water polluting substances

This list is an opportunity to flag those substances which might pose a significant risk to the aquatic environment, but for which there is not yet sufficient monitoring data available to declare them as a priority substance

2. The introduction of a biota Environmental Quality Standards (EQS) for some existing and new priority substances

A biota EQS is a distinct way of setting a legal standard by measuring and limiting pollutants in living organisms in an area
There are two important provisions in the WFD with regards to EQS:
o Article 10 WFD - establishes a combined approach for point and diffuse sources of water pollution

It provides legal powers for regulatory agencies to use a variety of regulatory techniques, such as reference to best available techniques, emission limit values, and best environmental practices in the case of diffuse sources of water pollution, such as run-off of pollutants from roads

Article 16(1) WFD - requires Member States to take measures that progressively reduce intrinsically hazardous substances, such as heavy metals, and Member States must cease out the discharge, emission, or loss of priority hazardous substances
The Non-Deterioration Obligation
Article 4(1)(a)(i) establishes a non-deterioration obligation upon Member States, which requires them to put measures in place that prevent deterioration in the existing quality of surface and ground waters.
o In the Bund v Germany case, the CJEU provided a strict interpretation of the nondeterioration obligation:
o It said that the WFD imposes two water quality obligations on Member
States:
 The obligation to prevent deterioration of water courses
 The obligation to enhance water quality by achieving and then maintaining what is defined as "good water quality status" under the
WFD.
o The Court then further held that a deterioration of water occurs if at least one of the quality elements within the meaning of Annex V to the WFD falls by one class, even if that change does not result in the reclassification of the whole water body in a lower class.
 This strict interpretation was confirmed in Commission v Austria,
where the Court held that Member States have legal powers to take discretionary decisions that rank other environmental interests higher than the reduction of water pollution
 In that case, it was found that the governor of Styria had correctly gone about weighing up the benefits of the hydroelectric power plant on the one hand and its negative impact on the water quality in of the Schwarze Slum river on the other
Classification of Water Bodies
Article 3 WFD governs the classification of water bodies.
 Classifications perform two functions in the wider context of the EFD's operation:
o Classifications provide the baseline from which Member States' progress in improving quality and quantity of water bodies is assessed.
o Classifications also provide the reference point for applying the 'no deterioration' principle
The stringency in the classifications required by the WFD should provide Member States to further enhance the quality of their water courses.
 For surface waters, 'overall status' will be judged on the basis of an ecological and a chemical component

Ecological status - assessed as 'high', 'good', 'moderate', 'poor', or 'bad'.
 'High ecological status' is basically a pristine water body. For instance, a natural water body would be assessed as being of 'good ecological status' if it varies only a little from undisturbed natural conditions

Chemical Status - only assessed on a 'good' or 'fail' basis.

One of the problems with these classifications is an absence of actual benchmarks to which they could be linked.
The WFD provides for a number of derogations which Member States can take advantage of.
o An important power of derogation is set out in Article 4(3) WFD - Member States can designate some surface water bodies as "artificial" or "heavily modified".
o An artificial water body is a body of surface water created by human activity,
while a heavily modified water body is a body of surface water that has substantially changed in character due to physical alterations by human activity
 This provision can be invoked if the water course has been created or modified for a particular use, such as water supply, flood protection,
navigation, or urban infrastructure
 By definition, water bodies which are classified as artificial or heavily modified are not able to achieve natural conditions
According to s3 of the European Union (Withdrawal) Act 2018, which is not yet in force, the legal obligations of the EU WFD will continue to apply in domestic law in the UK even after
Brexit.
Links Between the WFD and Other EU Directives
While the WFD constitutes the core of EU water pollution control, it also forms part of a wider network of EU legislation
One of the key pieces of secondary EU legislation is the Urban Waste Water Treatment
Directive.

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