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Water Framework Directive: guidance for AINA members
This is the most far-reaching piece of European legislation to affect the water environment.
It will benefit us by giving further protection to our waters, but we will have to play our part by modifying some of our practices, and this may increase costs and add to project planning times.
We must be actively involved in implementation to ensure the social and economic value of our activities is recognised. |
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| 2 | Impact on inland navigation authorities |
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The ports and navigation sector - Information sharing and lobbying |
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The purpose of this note is to brief members of AINA on the Water Framework Directive and its impact on their activities.
The Directive aims to protect and improve the quality and quantity of all water resources whilst allowing sustainable water use to continue. Integrated river catchment planning is at its core. The Environment Agency (EA) and SEPA are the competent authorities assigned to implement the Directive in England & Wales and in Scotland respectively. In England and Wales Defra is also the competent authority for matters pertaining to economics.
All water bodies over certain size criteria are included – surface waters, (rivers, lakes, estuaries, coastal waters) and groundwater. Artificial water bodies like canals and feeders are also included – so all inland waterways and their water resources will be covered.
2. Impact on inland navigation authorities
The Directive will benefit us all by reinforcing and extending the controls on pollutants entering our waterways, especially from diffuse sources such as farmland. However, it could also affect our own activities. Some of our work can affect the ecological and chemical quality of the water environment, and relatively little of this is regulated (except for SSSIs and protected species).
Our initial concerns with respect to how WFD may impact upon our operations were that many of the following activities could be subjected to regulation:
> engineering operations: e.g. weirs and structures obstructing fish migration, dredging, aquatic weed control, bank protection, channel relining or reprofiling, dewatering, new or altered structures (e.g. moorings, weirs, etc)
> water management: e.g. abstraction. impoundment, reservoir drawdown, transfer
> other activities: e.g. water movement resulting in spread of alien invasive species, fish stocking, or even the movement of boats themselves
This could affect all areas of work for a navigation authority, but particularly the following:
> waterway operation and maintenance
> selling water to and receiving wastewater from third parties
> regeneration and restoration projects
> leisure (especially boating and angling)
> freight
However, after a number of industry representations to Defra and EA during the last two years it now appears that In England and Wales the only additional regulation planned that is relevant to navigation authorities is extending the scope of Environment Agency powers to require fish passes or other means of allowing fish to pass river weirs and other similar obstructions. In Scotland SEPA’s regulatory powers (Controlled Activities Regulations) are much more comprehensive and could potentially be applied to any of the above activities.
The Directive has the flexibility to allow the social and economic benefits of our work to be taken into account, as well as the cost of any measures proposed to meet WFD objectives. It is therefore important that navigation authorities are involved in the implementation process. To date, some have been involved at a national level, but all will need to continue to be involved at a more local level with either the EA or SEPA in their River Basin Management Planning (see Section 5).
The Directive requires that the following environmental 'status' objectives are to be set by December 2009, and that they should be achieved by December 2015:
Surface waters |
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Good chemical status Good ecological status |
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Good chemical status Good quantitative status |
Good status |
Ground waters 
Good status In addition, no deterioration in status is allowed.
3.1 Surface Waters
Good chemical status is achieved when the concentrations of each Hazardous Substance is below its Environmental Quality Standard (EQS). The Hazardous Substances, and their EQSs, will be laid out in a Daughter Directive expected to be adopted by the end of 2008 (link to the latest draft: http://register.consilium.europa.eu/pdf/en/08/st10/st10732.en08.pdf). It is possible that sediments contaminated with these Hazardous Substances may cause these EQSs to be breached when they are disturbed e.g. by dredging or by boat traffic. We are keeping a watching brief on how this Directive will be implemented by the EA and by SEPA.
Good ecological status (GES) is defined by reference to three elements:
> hydro-morphological – physical features such as obstructions to movement of sediment and fish, channel width / depth, bank structure, nature of sediment, flow / level regime, etc
> physico-chemical – water quality parameters such as temperature, salinity, nutrients, oxygenation, acidification, and some synthetic pollutants not defined as Hazardous Substances.
> biological – fish, plants, invertebrates, algae
The ecological status of a water body is assessed by comparing it with the reference condition for that water body type. This is essentially the undisturbed condition, and is termed high ecological status. GES is then defined as a ‘slight’ deterioration from that. Ecological classification tools are being developed in each country to enable these assessments to be carried out, and there has been an intercalibration exercise for some to ensure they match. In the UK this exercise has been performed by UK TAG (Technical Advisory Group) a body set up by the UK administrations to develop the technical tools for implementing WFD. The UK TAG guidance on classification can be found at http://www.wfduk.org./UKCLASSPUB/LibraryPublicDocs/sw_status_classification
In some cases alternative ecological objectives can be set – see 3.2.
3.1.1 Artificial Water Bodies (AWBs) and Heavily Modified Water Bodies (HMWBs)
Waterbodies that cannot meet GES because of physical modifications for navigation or other sustainable uses can be designated as an Artificial (AWB) or a Heavily Modified Water Body (HMWB).Most inland waterways should be so designated.
Navigation authorities should check that their waterways feeders and reservoirs have been designated as AWB or HMWB. If they have not, measures imposed on them may be more onerous.
The default objective for AWBs and HMWBsis Good Ecological Potential (GEP). This is the same as GES except that impacts from physical modifications needed for these uses(“hydromorphological” impacts) are permitted as long as mitigation is applied. No allowance is made, however, for impacts caused by pollution, unless the impact is affected by the artificial of heavily modified characteristics of the water body.
Mitigation will only be required where it does not have a significant adverse effect on the use for which the waterbody was designated as AWB or HMWB (e.g. for navigation), or on the wider environment. In addition, to meet GEP, mitigation that only has a slight ecological benefit is not required. AINA have produced guidance on mitigation for navigation authorities (link: http://www.aina.org.uk/work_programme/WFD-RH.html) This has been used by UKTAG to produce guidance on how to classify Ecological Potential (link: http://www.wfduk.org./UKCLASSPUB/LibraryPublicDocs/gep_hmwb_final).
Navigation authorities are already doing much to mitigate the ecological impacts of their work but more may be needed. Annex B of the AINA Mitigation Measures report should be used as a source of good practice guidance.
In the longer term, amore rigorousapproach to defining GEP may beused, using biological data. Some AINA members are contributing to a study to develop such a method for canals. Link for further information: http://www.sniffer.org.uk/Resources/WFD61/Layout_Default/9.aspx?backurl=http%3a%2f%2fwww.sniffer.org.uk%3a80%2fproject-search-results.aspx%3fsearchterm%3dcanal%26filterbycategoryid%3d9&selectedtab=active.
As with GES, alternative objectives can be set – see 3.3 below.
3.1.2 Boat traffic impacts
A key consideration is how the impacts of boat traffic are to be dealt with. A policy paper has been drafted with Defra and the Scottish Government which states that such impacts are to be treated in the same way as any other hydromorphological impacts on AWBs, i.e. permitted subject to appropriate mitigation measures being introduced. A copy of the paper can be downloaded here
3.2 Groundwaters
Status definitions for groundwaters were set through a Daughter Directive on groundwater in 2006 (2006/118/EC – link: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:372:0019:0031:EN:PDF).
3.3 Alternative objectives
In certain defined cases lower objectives and/or longer deadlines can be set. Certain tests must be passed, as set out in Article 4 of the Directive, including where measures would be disproportionately costly or technically infeasible.
Where the activities of navigation authorities are causing a failure of an ecological objective, and restoration or mitigation measures are proposed, the navigation authority will need to check to see if they are technically feasible or affordable, and if so will need to ensure an alternative objective is set. The EA or SEPA may require supporting information.
This is the process of assessing the current condition of each water body, in terms of Chemical Status and Ecological Status or Potential. The results will inform the setting of objectives and measures, and will be included in the River Basin Management Plans (see 5 below).
Classification of Chemical Status will not be possible until the standards (EQSs) for Hazardous Substances, to be set in a Daughter Directive as outlined above, are in place. This will not be until 2009.
Classification of Ecological Status and Potential has been carried out by EA and SEPA during 2008. Where water bodies have been designated AWB or HMWB because of navigation use, the input of navigation authorities should have been sought to ensure that navigation pressures, impacts, and mitigation are correctly identified.
If navigation authorities have not been involved in the classification of Ecological Potential they should contact the EA or SEPA.
5. River Basin Management Plans (RBMPs)
The objectives, and the measures required to meet them, must be set out in River Basin Management Plans by December 2009. These will have a statutory footing and will need to link with the land use planning system and other relevant plans. Public bodies must have regard to the RBMPs when carrying out their functions, and must deal with reasonable requests for information from the EA and SEPA. (see para 1 of section 7 for more detail).
Each Plan will cover a River Basin District (RBD), which must comprise one of more river basins. The RBDs for Britain are shown in the map below. http://www.wfduk.org/implementation/4-6/view
The Government has designated the EA and SEPA as the ‘competent authorities’ responsible for producing the Plans in England & Wales and Scotland respectively. The Plans are eventually signed off by the Government.
Public participation must be encouraged and certain statutory bodies (including navigation authorities) must be consulted.
AINA members will need to be actively involved in the planning process to ensure that their business needs are fully recognised.
The EA has set up a Liaison Panel for each RBD, made up of representatives of each key stakeholder sector, to advise on the content of each RBMP, and on how best to consult stakeholders. There are also National Liaison Panels for England and for Wales to which issues that can only be dealt with at national level can be referred.Details of these panels, including membership, is available .by following this link (http://www.environment-agency.gov.uk/subjects/waterquality/955573/1458449/?lang=_e).
SEPA have similar arrangements in Scotland (Area Advisory Groups – see: http://www.sepa.org.uk/wfd/rbmp/aag.htm, National Advisory Group: see http://www.sepa.org.uk/wfd/rbmp/nag.htm).
Navigation authorities should ensure they are properly represented on these panels or groups.
Draft RBMPs are expected to be issued for consultation in late December 2008.
Navigation authorities should respond to the consultation exercise.
The RBMPs will draw on information from existing EA or SEPA plans covering smaller areas (usually individual river catchments). Examples are the EA’s CAMS (Catchment Abstraction Management Plans), CFMPs (Catchment Flood Management Plans), and FAPs (Fishery Action Plans).
Navigation authorities should already be engaged in the production of these plans.
As well as setting and meeting objectives, which may require measures for existing pressures, there is a general requirement for no deterioration in status or potential to arise from any new pressures. For a navigation authority, this might include construction of a new marina, restoration of an abandoned waterway, or use of a new canal water supply.
Where these new pressures need prior authorisation, the regulator, whether it is EA, SEPA or any other body, is obliged to ensure no deterioration occurs. For activities not regulated, the navigation authority itself may be expected to ensure no deterioration occurs where it is a public body (see below for duties of pubic bodies under Water Environment (Water Framework Directive) Regulations (England and Wales) 2003, and Water Environment and Water Services Act (Scotland) 2003.
Article 4.7 of the WFD provides an exemption, however, provided that:-
> all practicable steps are taken to mitigate
> benefits to society outweigh environmental benefits
> there is no environmentally better way of achieving the beneficial objectives served by the works
> the reasons for the works are laid down in the RBMPs, either before or after the works, and if after the works, that opportunities are given for interested parties to express their views before the works
There is European Guidance on this available at http://circa.europa.eu/Public/irc/env/wfd/library?l=/framework_directive/thematic_documents/environmental_objectives/article_circapdf/_EN_1.0_&a=dThis makes it clear that deterioration is allowed as long as it is not sufficient to cause a fall in the class of Chemical Status or Ecological Status / Potential. Regulators however may take a more stringent view where there is the possibility of an accumulation of deteriorations from different activities which together could cause a fall in the class, even though individually they would not.
Navigation authorities should ensure that they have processes in place for environmental appraisal of their work plans, and that they are able to assess whether “deterioration” in class is likely to occur, and if so, what mitigation is required to prevent this.
The Directive has now been transposed into English and Welsh law through the Water Environment (Water Framework Directive) Regulations (England and Wales) 2003. These Regulations set out the powers and duties needed for River Basin Management Plans, and related matters. The following duties and rights of public bodies are defined by the Act:
> to “have regard to” the relevant RBMP and any supplementary plans when exercising their functions
> to respond to reasonable requests from the EA for information
> to be consulted by the EA (navigation authorities, harbours authorities, and National Park authorities are specifically listed).
Public bodies are defined and include those created or continued in existence by public general Act of Parliament, funded by money provided by Parliament, and statutory undertakers. Some navigation authorities would fall into the definition.
Legal mechanisms need to be in place to ensure that measures in RBMPs can be enforced. In England & Wales, the government views that existing regulatory powers are largely sufficient, although there are some gaps that have been identified, including physical pressures such as obstructions to fish migration, dredging, bank protection, and diffuse pollution. Defra plan to increase the EA’s powers to require fish passes or other measures to deal with obstructions to fish migration, but there are no plans to enforce measures for other currently unregulated pressures. Abstraction pressures from navigation can now be dealt with by the Water Act 2003, which removed the exemption from licensing for some surface water transfers for navigation.
In Scotland transposition was through the Water Environment and Water Services Act (Scotland) 2003. This conferred similar duties and rights on public bodies to those conferred by the England & Wales legislation set out above. In addition, it gave powers to Scottish Ministers to identify ‘Responsible Authorities’, who have a duty to ‘exercise their designated functions so as to secure compliance with the requirements of the Directive’. British Waterways Scotland has been so designated.
Until now relatively few activities affecting the water environment have been regulated in Scotland. The transposing legislation therefore sets out a framework for a new tiered regulatory regime, with the type of authorisation being proportionate to the risk of harm. This has now been implemented through the Water Environment (Controlled Activities) (Scotland) Regulations 2005.
8. Article 5 Reports and continuing preparatory work
These are reports which each Member States had to submit to the European Commission by April 2005. They are essentially preparatory work needed for the RBMPs. Two types of work were carried out – economic and environmental. They are described below.
8.1 Economic analysis of water use
This exercise was carried out by Defra (England and Wales) and SEPA (Scotland). Its purpose was to provide information so that:
> the cost of water services is sufficiently passed on to consumers (Defra do not consider navigation to be water service but the European Commission are questioning this)
> the environmental objectives are set with an understanding of the costs involved
BW provided information to Defra through a Case Study (http://www.defra.gov.uk/environment/water/wfd/economics/pdf/useannexes.pdf
Annex F, pages F28 to F66).
A similar Case Study was prepared for the Scottish Government (http://www.sepa.org.uk/publications/wfd/html/economic_scotland/annex1i.html).
Economics work continues through Defra’s Collaborative Research Programme (http://www.defra.gov.uk/environment/water/wfd/economics/research.htm). This will provide information that the EA and SEPA can use to produce guidance on how economics issues are to be dealt with in the implementation of the WFD (most cost effective combination of measures, use of alternative objectives, etc).
8.2 Characterisation and Review of Human Activity
Characterisation involves identifying water bodies and categorising them into types based on those natural features that will affect which animals and plants live in them.
By December 2009 water bodies failing their objectives must be identified, and remedial measures defined. The first step in this process was a Review of Human Activity by the EA and SEPA. This was a risk assessment based on existing pressure data, and an assumption of what the objectives will be. For each water body, an assessment was made of the probability that each of a number of pressures will cause it to fail its default objective of GES.
The methods and results of the characterisation and risk assessments are shown at: http://www.environment-agency.gov.uk/subjects/waterquality/955573/1001324/1654756/?version=1&lang=_e, and http://www.sepa.org.uk/wfd/character/index.htm.
Some of the risk assessments were updated in Jan 2008. Link:
There are several types of monitoring required by the Directive: operational, surveillance, and investigative. Monitoring must be started by December 2006 and must have produced enough information for the first River Basin Management Plans required by December 2009.
9.1 Operational monitoring
The purpose of operational monitoring is to confirm the risk assessment (see 8.2. above) so that there is the required confidence in setting remedial measures. It is risk-based, so is only required to assess those pressures shown by the risk assessment as being likely to cause a failure of the waterbody’s ecological objective.
9.2 Surveillance Monitoring
This is required at a smaller number of sites and all parameters must be monitored. Its purpose is to check that the risk assessments and operational monitoring are producing the right results.
9.3 Investigative Monitoring
If operational or surveillance monitoring shows that the objective of the water body is not being achieved, investigative monitoring may be needed to establish the cause of the failure so that measures can be drawn up.
The table below summarises the dates by which each stage of the implementation process must be completed.
Dec 2000 |
Directive adopted by Member States |
Dec 2003 |
Directive transposed into national law |
Dec 2004 |
Article 5 Reports:- > Characterisation of River Basin Districts > Review of human activity on water bodies(risk assessment) > Economic analysis of water use |
Dec 2006 |
Monitoring programmes made operational |
Dec 2006 |
Statement Of Steps And Consultation Measures for each River Basin Management Plan (public consultation) |
Dec 2007 |
Summary Of Significant Water Management Matters for each River Basin Management Plan (public consultation) |
Dec 2008 |
Draft River Basin Management Plans (public consultation) |
Dec 2009 |
River Basin Management Plans published |
Dec 2012 |
Measures in the River Basin Management Plans to be fully operational |
Dec 2013 |
Main date for repeal of older Directives |
Dec 2015 |
Main objectives achieved Review of River Basin Management Plans (and then every 6 years) |
Dec 2019 |
European Commission review the Directive |
The European Commission has established the Strategic Coordination Group (SCG) to coordinate implementation across Europe. Through the SCG’s Common Implementation Strategy, a range of guidance documents have been produced and can be accessed from this link http://circa.europa.eu/Public/irc/env/wfd/library?l=/framework_directive&vm=detailed&sb=Title.
In 2006 the SCG started a project on hydromorphology to enable Member Sates to share experiences in relation to how hydromorphological pressures were being dealt with. This is particularly relevant to navigation authorities. Further information can be found at http://circa.europa.eu/Public/irc/env/wfd/library?l=/framework_directive/thematic_documents/hydromorphology&vm=detailed&sb=Title.
12. The ports and navigation sector - Information sharing and lobbying
A Ports, Navigation and Dredging Sector Group has been set up in England and Wales to share information about the impact of the Directive, and to provide a forum for discussions with Defra and the EA. Click here for minutes of meetings.
A European Task Group has also been established to share information and lobby at a European level. Click here for minutes of most recent meeting.
European Commission:
http://europa.eu.int/comm/environment/water/water-framework/index_en.html
Environment Agency:
www.environment-agency.gov.uk/wfd
SEPA:
Defra:
http://www.defra.gov.uk/environment/water/wfd/index.htm
Scottish Executive:
http://www.scotland.gov.uk/Topics/Environment/Water/17316/8084
UK Technical Advisory Group:
Foundation for Water Research:
British Marine Federation:
http://www.britishmarine.co.uk/publications.aspx?category=EnvironmentandBoatingFacilities (you need to be logged on as a member first)
Copyright 2007, AINA