EU Water Law

Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment requires that an environmental assessment shall be carried out for all plans and programmes, which, among others, are prepared for water management (Article 3 (2)). In addition, all such assessments (irrespective of whether they relate to water management or not, must identify the likely significant effects on the environment, “including on issues such as (…) water” (Annex I). As will be seen below, the relevance of this legislation for water law is in addition tremendous as many of the management plans, which require the Member States to adopt and implement, will themselves be subject to such an assessment.

Directive 2011/92/EC on the assessment of the effects of certain public and private projects on the environment provides that the environmental impact assessment (EIA) requires to be conducted within its scope “shall identify, describe and assess in an appropriate manner, in the light of each individual case (…) the direct and indirect effects of a project” on a number of factors, including water (Article 3). Among the types of project which are subject to an EIA are certain inland waterways and ports for inland-waterway traffic, trading ports, piers for loading and unloading connected to land and outside ports, groundwater abstraction or artificial groundwater recharge schemes, works for the transfer of water resources between river basins, waste water treatment plants, etc. (Annex I).

Directive 2010/75/EU on industrial emissions (integrated pollution prevention and control), the so-called “IED” Directive which is at the core of industrial environmental law, lays down rules designed to “prevent or, where that is not practicable, to reduce emissions into (…) water (…) in order to achieve a high level of protection of the environment taken as a whole” (Article 1). Its provisions with respect to water pollution are too numerous and diverse to be described here.

One of the three types of damage which fall within the scope of the EU environmental liability regime (Directive 2004/35/CE on environmental liability with regard to the prevention and remedying of environmental damage), is “water damage.” This is any damage that significantly adversely affects the ecological, chemical or quantitative status or the ecological potential, as defined in the WFD, of the waters concerned, or the environmental status of the marine waters concerned under the Marine Strategy Framework Directive (Article 2(1)(b)).

Directive 2004/35/CE applies, inter alia, to environmental damage caused by, and to any imminent threat of such damage occurring by reason of certain activities which include discharges into inland surface water and into groundwater which require prior authorisation under the applicable EU legislation, the discharge or injection of pollutants into surface water or groundwater and water abstraction and impoundment of water subject to prior authorisation in pursuance of the WFD (Article 3(1)). Remedying of such environmental damage, in relation to water, is achieved through the restoration of the environment to its baseline condition by way of primary, complementary and compensatory remediation (Annex II).