CONSULTATION PAPER

The Water Framework Directive (2000/60/EC) and the Dangerous
Substances Directive (2006/11/EC)

Proposals for Regulations establishing Environmental Objectives and Environmental
Quality Standards for the classification and management of Surface Waters and
requiring the implementation of measures to reduce water pollution and protect and
restore Surface Waters

Draft European Communities
Environmental Objectives (Surface Waters) Regulations 2008

5 September 2008

©

Comhshaol, Oidhreacht agus Rialtas Äitidil
Environment, Heritage and Local Government

Contents

Chapter 1 - General Page

Background to the proposed Regulations
Invitation to Comment
Freedom of Information

Chapter 2 - Purpose and Legislative Requirements
Purpose
Legislative Requirements

Classification Systems and Environmental Quality Standards

Chapter 3 - Outline of the proposed Regulations
Part 1 - General
Part II — Duties on Public Authorities and Other Persons
Part III — Environmental Objectives

Part IV - Calculation of Ecological Status, Ecological Potential
and Chemical Status

Part V - Duty to Prepare Inventories of Emissions, Discharges
and Losses of Priority Substances and Pollution Reduction Plans

Part VI - Miscellaneous Provisions

Appendices
Appendix 1- Outline of Biological Classification Systems Proposed

Appendix 2 - Draft European Communities Environmental Objectives
(Surface Waters) Regulations 2008

Appendix 3 - Previous Consultation and Impact Analysis

14

15

16

23

70

Chapter 1 - General

Background to the proposed Regulations

In 2000 the European Parliament and Council adopted Directive 2000/60/EC
(the Water Framework Directive). The Directive establishes the legal
framework for the protection, improvement and sustainable management of
inland surface waters, transitional waters, coastal waters and groundwater.

The Water Framework Directive has introduced some major changes to water
management across the European Union. An ecological objectives approach,
designed to protect and where necessary restore the structure and functioning
of aquatic ecosystems, is to be adopted. The Water Framework Directive also
introduces a river basin management planning approach which will be the key
mechanism for ensuring the integrated management of the water resource.

Ireland along with other Member States of the European Union is moving
towards River Basin Management Planning in accordance with the
requirements of the Water Framework Directive. The Directive aims to provide
a new, strengthened system for the protection and improvement of water
resources and water-dependent ecosystems. It aims at preventing the
deterioration in the existing status of waters, including the maintenance of
“high status” where it exists, and at ensuring that all waters, with some limited
exceptions, achieve at least “good status” by 2015.

The Water Framework Directive sets out an iterative process consisting of a
series of linked steps to implement the Directive and achieve the stated
objectives; this process is outline in the figure below:

The river basin management planning process

Characterisation

Achieve Objectives

Update REMP
.-—-.
*
Implement # 2015 _ E.
Programme of 2012 Plan olanption
Measures

 
  
 

hanitering Programme

    
 

Public
Farticipation

Significant Water Issues
Environmental Öbjeetives

Programme of Measures
2008

2009 Draft RBMP

Final REMP Adapted ram CSI WER [2003}
Best gracdices ja river bosia planeieg,
gaidgeze os Ihe planning prasess

To-date the Irish authorities have successfully met all the milestones of the
Directive, The Directive was transposed into Irish law by the European
Communities (Water Policy) Regulations 2003 (S.l. No. 722 of 2003). River
Basin Districets (RBDs) were identified to serve as the “administrative areas”
for co-ordinated water management. Cross-border river basins covering the
territory of Ireland and Northern Ireland were assigned to an “International
RBD”. Four hundred river basins on the island of Ireland have been grouped
and assigned to a total of eight RBDs. One of these RBDs lies wholly in
Northern Ireland, four lie wholly in Ireland and three are International RBDs.

In 2004 an analysis of the characteristics of river basin districts was
completed for each RBD in accordance with the requirements of Article 5 of
the Directive. Water bodies were delineated for management purposes.
These include some 757 groundwater, 4,468 river, 210 lake (above 50
hectares), 196 transitional and 113 coastal water bodies. An analysis of the
impact of human activity on the status of water bodies was undertaken. This
analysis provided an assessment of the likely condition of all water bodies
(groundwater, rivers, lakes, transition and coastal waters) and established a
baseline for identifying future priority actions for subsequent stages in the river
basin planning cycle.

A National monitoring programme was established by the EPA in 2006 and
monitoring of groundwater and surface water commenced in 2007.
Monitoring responsibilities were assigned by the EPA to several agencies,
including the EPA itself, local authorities, the Marine Institute, regional
fisheries boards, the Office of Public Works and the National Parks and
Wildlife Service of the Department of the Environment, Heritage and Local
Government.

The Regulations that are now proposed will give legal status to the criteria
and standards to be used for classifying surface waters in accordance with
the ecological objectives approach of the Water Framework Directive. The
classification of waters is a key step in the river basin management planning
process and is central to the setting of objectives and the development of
programmes of measures. Waters classified as ‘high’ or ‘good’ must not be
allowed deteriorate. Waters classified as less than good must be restored to
at least good status within a prescribed timeframe. The environmental targets
or goals and the programmes of measures to be included in river basin
management plans must therefore reflect these requirements.

The EPA will be responsible for classifying the status of surface water bodies
using new classification tools developed for this purpose.

The environmental quality standards proposed will in addition provide a more
coherent and comprehensive system of quality objectives for Irish surface
waters than has existed to-date. The standards will apply to all surface waters
i.e. to rivers, lakes, transitional, coastal and artificial water bodies. The EPA,
local authorities and other agencies involved in authorising discharges to
water need environmental quality standards to determine the amount and
concentration of a substance that may be allowed in the discharge without

causing damage to aquatic biological communities or failure of the
environmental objectives of the Directive.

Invitation to comment

Interested parties are invited to comment on the proposed European
Communities Environmental Objectives (Surface Waters) Regulations 2008. A
full copy of the Regulations is at Appendix 2 to this consultation paper. For
your convenience, a commentary on the draft Regulations is provided in
Chapter 3. Comments received by 30 September 2008 will be taken into
consideration and, where appropriate, the draft Regulations will be revised to
reflect comments received. Please address comments to the person below -.

Mr Paul Foley

Water Quality Section
Department of the Environment,
Heritage and Local Government
Custom House

Dublin 1

Tel 01-8882325
Fax 01-8882400

Email Paul.Foley@environ.ie

Further copies of the consultation paper are available in electronic and hard-
copy format on request to the person named above. The paper can also be
accessed through the website www.environ.ie

Freedom of Information

Please note that, in the event of a request being made by any person under
the Freedom of Information Acts 1997 and 2003, it may be necessary for the
Department of the Environment, Heritage and Local Government to disclose
any or all comments received. The Department may refuse to disclose
information only in exceptional circumstances. The comments received in
response to this consultation paper might also be published by the
Department.

Chapter 2 - Purpose and Legislative Requirements

Purpose

1.1. The purpose of this consultation paper is to seek views on the new
regulatory regime which the Minister intends to introduce in order to
establish the legislative structure needed to give effect in Irish law to

the environmental objectives for surface waters established by Article
4 of the Water Framework Directive (Directive 2000/60 EC of 23
October 2000 establishing a framework for Community action in the
field of water policy). The aim of the new legislation is to protect the
water environment and to secure efficient and sustainable water
management.

1.2. The legislative requirements of the Water Framework Directive that will
be addressed by the Regulations are outlined below. In addition,
certain failings relating to the establishment of quality objectives for
surface waters have been identified by the European Court of Justice
in relation to Ireland’s implementation of the Dangerous Substances
Directive (76/464/EEC). These shortcomings will also be addressed by
these Regulations. As early as 1976, Directive 76/464/EEC (now
Directive 2006/11/EC - codified version) ‘on pollution caused by
dangerous substances discharged into the aquatic environment of the
Community’ tackled the problem of chemical pollution of surface
waters by establishing a regulatory framework to address the
environmental problems resulting from discharges and losses of
dangerous substances. The Dangerous Substances Directive is now
to be integrated into the Water Framework Directive and will be
repealed once the relevant provisions of the Water Framework
Directive come into force.

2. Legislative Requirements
The Water Framework Directive

2.1.Artice 4(1) of the Water Framework Directive sets out the
environmental objectives or goals that must apply in relation to surface
waters. Member States —

- must prevent deterioration in status

- must protect high and good status waters where they exist

- must restore waters of less than good status to at least good status
by not later than 2015

2.2. Member States must implement the measures that are necessary to
achieve these objectives. Measures must, for example, be put in place
to control point source discharges liable to cause water pollution. This
must include a requirement for prior regulation of discharges into water
(Article11 (3) (g)). This could involve a prohibition on the entry of
pollutants into water, or a requirement for prior authorisation, or
registration based on general binding rules. Emission limits must be
laid down in any authorisation granted which aim to achieve the
environmental objectives for the receiving body of surface water.

2.3.Member States must furthermore implement the measures necessary
to progressively reduce pollution by priority substances, and also to
cease or phase out emissions, discharges or losses of priority

hazardous substances. Priority substances are chemical substances
presenting a high risk to the aquatic environment identified in
accordance with the procedures laid out in paragraph 2 of Article 16 of
the Directive. 33 substances or group of substances are on the first
EU priority list. These include selected existing chemicals, plant
protection products, biocides, metals and other groups like
Polyaromatic Hydrocarbons (PAH) that are mainly incineration by-
products and Polybrominated Biphenylethers (PBDE) that are used as
flame retardants. There are also eight other pollutants which are
included in List I of the annex to Directive 76/464/EEC (Directive
2006/11/EC - codified version) which are not strictly part of the EU
priority list. However, environmental quality standards for these
substances have been included in the EU Commission proposal on
quality standards in order to maintain regulation of these substances
at Community level after the Dangerous Substances Directive is
repealed. The EU standards proposed for these substances will give a
high level of protection to the environment and human health by
translating the concept of ‘good status’ into transparent numerical
values based on best available science and knowledge. Among the
priority substances, certain substances have been identified as priority
hazardous substances for which measures have to be implemented
with the aim of ceasing or phasing out emissions, discharges and
losses over time. The EU Commission will continue to review the list of
priority substances, prioritising further substances for action on the
basis of the agreed environmental risk criteria.

2.4.Under certain conditions, the deadline of 2015 for the restoration of
surface water bodies to good status can be extended by two further
six-year river basin planning periods i.e. up to 2027. In such
circumstances however, the measures to bring the water body to the
required status by the extended deadline must be put in place (Article
4.4) and the reasons for any proposed extension must be fully
explained in the river basin management plan.

2.5. Under more stringent conditions, where a water body is so affected by
human activity or its natural condition is such that the achievement of
the ‘good status’ objective would be infeasible or disproportionately
expensive, less stringent environmental objectives may be set.
However, this is only allowed when the socioeconomic and
environmental needs served by such human activity cannot be
achieveed by other means which are a significantly better
environmental option not involving disproportionate costs (Article 4.5).

The Dangerous Substances Directive

2.6. The European Court of Justice has found that, in failing to take all of
the measures necessary to ensure a correct transposition and
application of Council Directive 76/464/EEC (Directive 2006/11/EC -
codified version) of 4 May 1976 on pollution caused by certain
dangerous substances discharged into the aquatic environment,

Ireland had failed to comply with its obligations under Article 7 of that
directive (Case C-282/02, Judgement of the Court of 2 June 2005).

2.7.Article 7 (Article 6 of the codified version) of the directive requires
Member States to reduce pollution of waters by the substances
mentioned in List II of the annex to the directive. Towards this end, the
directive requires the prior authorisation (i.e. licensing) of discharges
of List II substances into water.

2.8. Authorisations must lay down emission standards which are applicable
to authorised individual discharges and which have been calculated in
accordance with quality objectives established in a programme under
Article 7(3) (Article 6(3) Codified version) of the Directive to protect the
expanses of water and watercourses in question. The Court has ruled
that, because of the absence of a coherent and general system of
quality objectives for Irish surface waters, the other elements of a
programme (i.e. authorisations and emission standards based on the
objectives) cannot be defined in such a way as to comply with the
requirements of the directive.

3. New Classification Systems and Environmental Quality Standards

3.1.The Water Framework Directive introduces a new approach, an
ecological objectives approach, to classifying and managing waters.
The ability to classify waters, together with the availability of
environmental quality standards, is central to river basin management
planning and sustainable water management. Environmental quality
standards are needed to control discharges and losses of pollutants to
waters so as to prevent pollution and avoid damage to aquatic
biological communities. General conditions within the aquatic
environment i.e. temperature, oxygen balance, pH, acid neutralising
capacity and nutrient concentrations must be maintained at levels or
within ranges that support the functioning of the natural ecosystem
and achieve the values required for the biological quality elements.
The concentration of chemical pollutants must also be controlled so as
not to exceed concentrations which are to be established in
accordance with procedures set out in the Directive. Standards for
some chemical pollutants, called priority substances, have been
established at EU level. These standards will be used to assess the
‘chemical status’ of waters. Standards for other chemical pollutants
called ‘specific relevant pollutants, which are not on the EU priority list
but which are relevant within individual member states, are required to
be established at member state level. Compliance with the standards
for specific relevant pollutants is to be taken into account, together
with the thresholds or criteria established for the biological and general
quality elements, when assessing 'ecological status’. A water body
must achieve both ‘good ecological status’ and ‘good chemical status’
before it can be considered to be at ‘good status’.