Introduction
On 25 April 2024, the Courtroom of Justice clarified the obligations that apply to non-designated floor water our bodies underneath the Water Framework Directive (Sweetman, C-301/22). In essence, the Courtroom guidelines that there isn’t a obligation to characterise and classify lakes smaller than 0.5 km2, and to determine and monitor their ecological standing. Furthermore, the obligations to realize good floor water standing and to forestall deterioration don’t apply to those waters. However, the Courtroom additionally guidelines that the Water Framework Directive may nonetheless be essential when deciding on an software for a challenge that impacts these lakes, as they could hook up with designated floor water our bodies.
The details
The case considerations a small lake on Gorumna Island (Eire). This lake was not recognized as a water physique underneath the Water Framework Directive because it didn’t meet the factors in relation to floor space or being situated in a protected space. An Irish salmon farmer (Bradán Beo Teoranta) sought permission to summary freshwater from this lake to wash diseased salmon and to rid them of amoebic gill illness and sea lice. This permission was granted by the competent authority An Bord Pleanála (the Board). Sweetman lodged an attraction in opposition to this determination. He argued that this authorisation would breach the duty in Article 4(1) of the Water Framework Directive (WFD) to implement the mandatory measures to forestall deterioration of the standing of that physique of floor water. The Excessive Courtroom in Eire held that this obligation had certainly been breached, however later re-opened the case and requested a preliminary ruling of the Courtroom of Justice (primarily) due to the far-reaching penalties this interpretation of the Directive may have.
In essence, the Courtroom of Justice was confronted with two questions: whether or not an obligation exists to characterise and classify lakes smaller than 0.5 km2, and to determine and monitor their ecological standing and whether or not the obligations to realize good floor water standing and to forestall deterioration apply to those waters.
The judgment and commentary
The adverse reply to each questions may come as a shock after the Courtroom of Justice’s Weser-ruling of 1 July 2015. Right here, the Courtroom thought-about that ‘the final word goal of [the Water Framework Directive] is to realize, by coordinated motion, “good standing” of all EU floor waters by 2015.’ After years of uncertainty, it seems that the Water Framework Directive doesn’t, actually, shield all EU floor waters in spite of everything.
The Courtroom of Justice basically reaches this conclusion by deciphering the obligations from the Water Framework Directive in addition to the travaux préparatoires for this Directive. One of many arguments to chorus from characterising and classifying lakes smaller than 0.5 km2 is that this may lead to ‘pointless excessive burdens’ in mild of the complexity of this course of. Moreover the lake central to this case, the ruling may very well be utilized by analogy to different kinds of water our bodies, resembling rivers smaller than 10 km2 that aren’t designated and don’t should be designated underneath the Water Framework Directive.
The foregoing is however the truth that the Water Framework Directive may nonetheless be essential when deciding on an software for a challenge that impacts non-designated floor water our bodies. Floor waters may be related with each other, which may trigger the standard of a small non-designated water physique to have an effect on the standard of a delegated water physique. In essence, the Courtroom guidelines that the competent authority in such instances should confirm that the consent: (i) will not be liable to trigger deterioration of the standing of one other floor water physique, (ii) neither is liable to compromise the attainment of fine floor water standing, and (iii) is suitable with a programme of measures for the involved river basin – as required by article 11 WFD. It’s for the nationwide court docket to establish whether or not these standards are met.
Fulfilling these standards may require a considerable quantity of (advanced) analysis earlier than ample data is gathered for the competent authority to find out whether or not a challenge in a small non-designated floor water physique is permissible. Furthermore, these water our bodies may additionally nonetheless be lined by different Directives, such because the Birds and Habitats Directives. The very fact nonetheless stays that for some EU floor waters, it’s now clear that they aren’t protected by the protecting regime underneath the Water Framework Directive.
L.S. (Lolke) Braaksma, LL.M. is assistant professor on the College of Groningen.