Water Pollution Notes

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.

  • 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.

  • 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...

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