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Going with the flow: Integrated Water Resources Management, the EU Water Framework Directive and ecological flows

Published online by Cambridge University Press:  21 June 2018

William Howarth
William Howarth*
Affiliation:
Kent Law School, Eliot College, University of Kent, Canterbury, UK
*
*Author email: w.howarth@kent.ac.uk
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Abstract

This paper seeks to relate strategic themes in water resources management to the practicalities of imposing particular regulatory measures on water uses and to protect aquatic ecosystems. Specifically, a contrast is drawn between the global imperative of Integrated Water Resources Management (IWRM) and the sectoral (issue-by-issue) approach to water regulation that has traditionally prevailed in both regional (EU) and national legislation. The intuitive attractions of ‘integration’ are contrasted with the challenges of interrelating this to the diverse purposes for which water legislation is adopted, both for human needs and for ecological purposes. These challenges are well illustrated in the EU Water Framework Directive (WFD) which purports to adopt an ‘integrated’ approach, but is actually concerned with water quality, largely to the exclusion of other water-related concerns. Insofar as the Directive does seek to secure integration between water quality and water quantity concerns in surface water, this is only done in a secondary or incidental way. Water flow becomes relevant only where specified environmental objectives under the Directive are not being met. However, the legally contingent status of flow has been bolstered markedly by recent guidance on ecological flows under the WFD Common Implementation Strategy. The significance of this guidance is discussed and related to the implementation challenges that it raises. In relation to the UK, and particularly England, it is argued that the response to addressing water flow issues arising under the WFD had been dilatory and inadequate. Concluding observations reflect on the global, regional and national challenges to integration of water legislation as they have been illustrated by the discussion of regulating for ecological water flows.

Keywords

integrated water resources managementEU water legislationWater Framework Directiveecological flows
Type
Research Article
Information
Legal Studies , Volume 38 , Issue 2 , June 2018 , pp. 298 - 319
Copyright
Copyright © The Society of Legal Scholars 2018 

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Footnotes

†

This paper derives from conference presentations at the World Water Congress in Edinburgh in 2015 and the Society of Legal Scholars Conference in Oxford in 2016. The author is most grateful to participants at these gatherings for discussion and helpful comments. Especial gratitude is owed to Professor Maria Lee, of University College London, who offered many invaluable suggestions for improvement on an earlier draft of the paper. Further gratitude is owed to anonymous reviewers who offered many helpful observations. Any errors that remain are the responsibility of the author alone.

References

1 T Le Quesne, E Kendy and D Weston The Nature Conservancy WWF Report 2010, The Implementation Challenge: Taking Stock of Government Policies to Protect and Restore Environmental flows, available at http://assets.wwf.org.uk/downloads/global_flows.pdf?_ga=1.63872303.1858202509.1472120256 (last accessed 28 June 2017).

2 For a useful general discussion of the concept of IWRM and its interpretation in different jurisdictions, see Hendry, S Frameworks for Water Law Reform (Cambridge: Cambridge University Press, 2015) ch 2Google Scholar.

3 2000/60/EC Directive of the European Parliament and Council of 23 October 2000, establishing a framework for Community action in the field of water policy (referred to hereafter as the ‘Water Framework Directive’ (WFD)).

4 2007/60/EC Directive of the European Parliament and of the Council of 23 October 2007 on the assessment and management of flood risks.

5 European Commission COM (2007) 414; and see COM (2011) 133 Third Follow Up Report to the Communication on Water Scarcity and Droughts; and COM (2012) 672 Report on the Review of the European Water Scarcity and Droughts Policy; and COM (2011) 13.

6 See also Howarth, W Integrated Water Resources Management and the Right to Water Security, Foundation for Law, Justice and Society Policy Brief (Oxford: FLJS, 2013)Google Scholar, available at http://www.fljs.org/sites/www.fljs.org/files/publications/Howarth_0.pdf (last accessed 28 June 2017).

7 See the Rio Declaration on Environment and Development, available at http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm/ (last accessed 28 June 2017); and see Robertson, A Ross Sustainable Development Law in the UK: From Rhetoric to Reality? (Abingdon: Earthscan, 2012)Google Scholar for a useful discussion of the national legal implications of this concept.

8 See United Nations Conference on Environment and Development Rio de Janerio, Brazil, 3–14 June 1992, Agenda 21, available at http://sustainabledevelopment.un.org/content/documents/Agenda21.pdf (last accessed 28 June 2017). See also the reaffirmation of the need for IWRM in the World Summit on Sustainable Development (2002) Plan of Implementation, Report of the World Summit on Sustainable Development, A /Conf. 199/20 p 22, available at http://www.un.org/esa/sustdev/documents/WSSD_POI_PD/English/WSSD_PlanImpl.pdf (last accessed 28 June 2017).

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10 A widely cited critique is offered by Biswas, AK ‘Integrated Water Resources Management: is it working?’ (2008) 24 Water Development Management 22Google Scholar. For further critical observations on IWRM, see Giordano, M and Shan, T ‘From IWRM back to integrated water resources management’ (2014) 30 International Journal of Water Resources Development 364CrossRefGoogle Scholar. Perhaps placed at the extreme end of the sceptical spectrum, in contesting the value of IWRM as a conceptual tool, Jeffrey, P and Gearey, M ‘Integrated water resources management: lost on the road from ambition to realisation’ (2006) 53 Water Science & Technology 1CrossRefGoogle Scholar.

11 Hering, JG and Ingold, KM ‘Water resources management: what should be integrated?’ (2012) 8 Science 1234CrossRefGoogle Scholar. Further on the definitional confusion as to the precise meaning of IWRM, see Grigg, NS ‘Integrated water resources management: balancing views and improving practice’ (2008) 33 Water International 279CrossRefGoogle Scholar.

12 UN Water Report, The Status Report on the Application of Integrated Approaches to Water Resources Management (UN, 2012); and see the United Nations International Decade for Action, Water For Life 2005–2015, available at http://www.un.org/waterforlifedecade/iwrm.shtml (last accessed 28 June 2017).

13 For an interdisciplinary discussion of the foundational principles of integrated governance of water, particularly in respect of water shortage and flood risk, see van Risjswick, M, Edelenbosb, J, Hellegersc, P, Kokd, M and Kuks, S ‘Ten building blocks for sustainable water governance: an integrated method to assess the governance of water’ (2014) 39 Water International 725CrossRefGoogle Scholar.

14 See for example the UK Government's website of statutory information, where a search of primary legislation on ‘water’ produces 47 hits concerning a wide spectrum of water regulatory issues across the different jurisdictions within the UK, available at http://www.legislation.gov.uk/ (last accessed 28 June 2017). Notably, this does not encompass various water-related matters where ‘water’ does not appear in the title of the statute, such as fisheries legislation, for example.

15 See Part I of Environmental Protection Act 1990 on Integrated Pollution Control.

16 See Environmental Permitting (England and Wales) Regulations 2010 (SI 2010/675).

17 See Directive 96/61/EC on Integrated Pollution Prevention, and Directive 2010/75/EU on Industrial Emissions.

18 See the extensive survey by Dhondt, N Integration of Environmental Protection into other EC Policies (Groningen: Europa Law Publishing, 2003)Google Scholar; though contrast Hertin, J and Berkhout, F ‘Analysing institutional strategies for environmental policy integration: the case of eu enterprise policy’ (2003) 5 Journal of Environmental Policy & Planning 39CrossRefGoogle Scholar, suggesting that there is an antagonistic relationship between industry and the environment, and that the impact of environmental policy implementation has been modest because non-environmental policy sectors have found ways to reduce environmental interventions which they see as a threat to their interests.

19 Art 191(2) Treaty on the Functioning of the European Union; and see Lee, M EU Environmental Law, Governance and Decision-Making (Oxford: Hart Publishing, 2nd edn, 2014) ch 1Google Scholar for a useful discussion of the EU Environmental Policy Principles; and Macrory, R (ed) Principles of European Environmental Law (Groningen: Europa Law Publishing, 2004)Google Scholar.

20 Jordan, A and Lenschow, A ‘Environmental policy integration: a state of the art review’ (2010) 20 Environmental Policy and Governance 147CrossRefGoogle Scholar; and Adelle, C, Jordan, A and Turnpenny, J ‘Policy making’ in Jordan, A and Adelle, C (eds) Environmental Policy in the EU : Actors, Institutions and Processes (Abingdon: Earthscan, 3rd edn, 2013) p 209Google Scholar.

21 See Howarth, W ‘Integrated Water Resources Management and the European Union Common Agricultural Policy’ in Cardwell, M and McMahon, J (eds) Research Handbook on EU Agriculture Law (Cheltenham: Edward Elgar, 2016) p 246Google Scholar.

22 For a pertinent discussion of the disparities between the WFD and IWRM and other international commitments with regard to water management see Rahman, MM, Varis, O and Kajander, T ‘EU Water Framework Directive vs. Integrated Water Resources Management: the seven mismatches’ (2004) 20 Water Resources Development 565CrossRefGoogle Scholar.

23 WFD, 2000/60/EC, Recitals 9, 16, 18.

24 Art 1, WFD.

25 Art 9, WFD, and see Unnerstall, H ‘The principle of full cost recovery in the EU-Water Framework Directive – genesis and content’ (2007) 19 Journal of Environmental Law 29CrossRefGoogle Scholar; and Howarth, W ‘Cost recovery for water services and the polluter pays principle’ (2009) 10 ERA Forum 565CrossRefGoogle Scholar.

26 Formerly Art130s(1) of the European Community Treaty (ECT) and now Art 192(1) of the Treaty on the Functioning of the European Union (TFEU). See the preamble to the WFD.

27 Under Art 174 ECT, formerly Art 130r ECT and now Art 191 TFEU.

28 Under Art 175(2) ECT, formerly Art 130s(2) ECT and now Art 192(2) TFEU.

29 Case C-36/98 Kingdom of Spain v Council of the European Union, 30 January 2001, concerning Council Decision 97/825/EC of 24 November 1997 concerning the conclusion of the Convention on cooperation for the protection and sustainable use of the river Danube (OJ 1997 L 342, p 18).

30 Ibid, paras 51–52.

31 I am indebted to an anonymous reviewer for drawing this point to my attention.

32 For a more detailed account, see Howarth, W and McGillivray, D Water Pollution and Water Quality Law (Crayford: Shaw, 2001) ss 5.7–10Google Scholar; and Grimeaud, D ‘Reforming EU water law: towards sustainability’ (2001) 10 European Environmental Law Review 41–51CrossRefGoogle Scholar, 88–97, 125–135.

33 See Art 8, WFD on monitoring of surface water status, groundwater status and protected areas, and see Art 5, WFD on characteristics of the river basin district, review of the environmental impact of human activity and economic analysis of water use.

34 See Art 11, WFD on programmes of measures.

35 Art 11(3)(e) and (i) WFD.

36 Art 4(1)(a), WFD.

37 Art 4(1)(b) and (c), WFD.

38 Art 2(18), WFD.

39 Annex V, Table 1.2, WFD.

40 Annex V, para 1.2, Table 1.2, WFD. See Howarth, W ‘The progression towards ecological quality standards’ (2006) 18 Journal of Environmental Law 3CrossRefGoogle Scholar.

41 Ibid.

42 Art 4(3)(a), WFD. Under Art 2(9), WFD, ‘a heavily modified water body means a body of surface water which as a result of physical alterations by human activity is substantially changed in character’.

43 Art 1(A)(iii), WFD.

44 See WFD CIS Guidance Document No. 4: Identification and Designation of Heavily Modified and Artificial Water Bodies (2003) s 6.2.3, available at https://circabc.europa.eu/sd/a/f9b057f4-4a91-46a3-b69a-e23b4cada8ef/Guidance%20No%204%20-%20heavily%20modified%20water%20bodies%20-%20HMWB%20(WG%202.2).pdf (last accessed 28 June 2017).

45 Art 4(4), WFD.

46 Art 4(5), WFD.

47 Art 4(6), WFD.

48 Art 4(7), WFD.

49 Art 2(1), WFD.

50 Art 2(26), WFD.

51 Art 4(1)(b), WFD.

52 Annex V, 2.1.2, WFD.

53 See CIS Guidance Document No 18 Guidance on Groundwater Status and Trend Assessment (2009), and European Environment Agency, Report 11/2012 Water Resources in Europe in the Context of Vulnerability (2012) p 36, available at http://www.eea.europa.eu/publications/water-resources-and-vulnerability (last accessed 28 June 2017).

54 Art 4(1)(c), WFD.

55 Art 4(2), WFD.

56 Under Art 6 and Annex IV, WFD.

57 92/43/EEC and 79/409/EEC (now 2009/147/EC) Annex IV, WFD.

58 Art 2(2), Habitats Directive.

59 Art 6(1), Habitats Directive.

60 European Commission Managing Natura 2000 Sites: The Provisions of Article 6 of the Habitats Directive, 2000, available at http://ec.europa.eu/environment/nature/natura2000/management/docs/art6/provision_of_art6_en.pdf (last accessed 28 June 2017).

61 See the discussion of Environmental Flow Indicators below.

62 See for example the WFD 48 Project, which involved a panel of ecologists who sought to ascertain acceptable flow parameters and key components of the biota across the range of UK rivers. The project produced lookup tables for each river type, specifying the maximum abstraction allowable at different flows (reported by MC Acreman, MJ Dunbar, J Hannaford, A Black, O Bragg, J Rowan and J King Development of Environmental Standards (Water Resources). Stage 3: Environmental Standards for the Water Framework Directive. Report to the Scotland and Northern Ireland Forum for Environment Research (Wallingford and Dundee: Centre for Ecology and Hydrology and University of Dundee, 2005). See also the discussion of the work of United Kingdom Technical Advisory group on the Water Framework Directive (UKTAG) below.

63 For details see website available at http://www.eea.europa.eu/themes/water/water-assessments-2012 (last accessed 28 June 2017).

64 The EU Blueprint: European Commission COM(2012) 673 final, A Blueprint to Safeguard Europe's Water Resources (2012).

65 See also various European Commission reports on implementation, particularly the Fourth Implementation Report on Programmes of Measures (2015), available at http://ec.europa.eu/environment/water/water-framework/impl_reports.htm#fourth (last accessed 28 June 2017).

66 European Environment Agency 9/2012 European Waters – Current Status and Future Challenges – Synthesis (2012) s 2.2.1 The ecological status of water, and subsequently see COM (2015) 120 The Water Framework Directive and the Floods Directive: Actions towards the ‘Good Status’ of EU Water and to Reduce Flood Risks, which reports under s 3.2, Using too much water: over-abstraction, that excessive abstraction significantly affects 10% of surface water bodies and 20% of groundwater bodies.

67 House of Lords, European Union Committee An Indispensable Resource: EU Freshwater Policy. 33rd Report of Session 2010–12 (HL Paper 296) published 2 May 2012.

68 On national water resource planning, see Howarth, W ‘Planning for water security’ (2012) 4 Journal of Planning and Environment Law 357Google Scholar.

69 Para 68, HoL Report, above n 67.

70 See particularly the European Environment Agency's ‘thematic assessments’: 1 Towards Efficient Use of Water Resources in Europe (Report 1/2012, 2012); 2 European Waters – Assessment of Status and Pressures (Report 8/2012); 3 Water Resources in Europe in the Context of Vulnerability (Report 11/2012), and the Synthesis report: Europe's Water Resources: Current Status and Future Challenges (Report 9/2012), available at http://www.eea.europa.eu/publications#c14=&c12=&c7=en&c11=5&b_start=0 (last accessed 28 June 2017).

71 EEA 8/2012, p 10.

72 EEA No 9/ 2012 p 20, citing R Sánchez Navarro and G Schmidt ‘Environmental flows as a tool to achieve the wfd objectives: discussion paper’, Draft 2.0 of 11 June 2012 (European Commission and Typsa and Intecsa-Inarsa), and Bunn, SE and Arthington, AH, ‘Basic principles and ecological consequences of altered flow regimes for aquatic biodiversity’ (2002) 30 Environmental Management 492CrossRefGoogle ScholarPubMed.

73 EEA 9/2012, Summary.

74 The EU Blueprint, COM(2012) 673 final A Blueprint to Safeguard Europe's Water Resources p 6.

75 See Sánchez Navarro and Schmidt, above n 72; and C Theodoropoulos and N Skoulikidis ‘Environmental flows: the European approach through the Water Framework Directive 2000/60/EC’ Proceedings of the 10th International Congress of the Hellenic Geographical Society, available at https://www.researchgate.net/publication/267574916_Environmental_flows_the_European_approach_through_the_Water_Framework_Directive_200060EC (last accessed 28 June 2017).

76 See particularly Poff, NL, Allan, JD, Bain, MB, Karr, JR, Prestegaard, KL, Richter, RD, Sparks, RE and Stromberg, JC ‘The natural flow regime: a new paradigm for riverine conservation and restoration’ (1997) 47 BioScience 769CrossRefGoogle Scholar; and Poff, NL and Zimmerman, JK ‘Ecological responses to altered flow regimes: a literature review to inform the science and management of environmental flows’ (2010) 55 Freshwater Biology 194CrossRefGoogle Scholar.

77 Bunn, SE and Arthington, AH ‘Basic principles and ecological consequences of altered flow regimes for aquatic biodiversity’ (2002) 30 Environmental Management 492CrossRefGoogle ScholarPubMed.

78 European Environment Agency The European Environment State and Outlook: Water Resources: Quantity and Flows (Report 1/2010), available at http://www.eea.europa.eu/soer/europe/water-resources-quantity-and-flows (last accessed 28 June 2017).

79 See Lee, M ‘Law and governance of water protection policy’ in Scott, J (ed) Environmental Protection: European Law and Governance (Oxford: Oxford University Press, 2009) p 27Google Scholar, for a useful discussion of the accountability concerns.

80 See European Commission, Water Framework Directive Guidance Documents, available at http://ec.europa.eu/environment/water/water-framework/facts_figures/guidance_docs_en.htm (last accessed 28 June 2017). Note particularly Guidance Document No 1, Economics and the Environment – The Implementation Challenge of the Water Framework Directive (2003), which sets out some general principles concerning the role of guidance in the implementation of the Directive. See also the further national guidance provided by the UK Technical Advisory Group (UKTAG) for Water Framework Directive on UTAG, available at https://www.wfduk.org/ (last accessed 28 June 2017).

81 WFD Common Implementation Strategy, Guidance Document 31 (2015) Ecological Flows in the Implementation of the Water Framework Directive, available at https://circabc.europa.eu/sd/a/4063d635-957b-4b6f-bfd4-b51b0acb2570/Guidance%20No%2031%20-%20Ecological%20flows%20%28final%20version%29.pdf (last accessed 28 June 2017) [CIS 31].

82 For the new River Basin Management Plans for the UK, see website available at https://www.gov.uk/government/collections/river-basin-management-plans-2015 (last accessed 28 June 2017).

83 CIS 31, p 9.

84 Ibid, p 20.

85 C Benítez and G Schmidt ‘Analysis of the implementation of Environmental Flows in the wider context of the river basin management plans’ (European Commission, Intecsa-Inarsa, 2012), available at http://ec.europa.eu/environment/archives/water/implrep2007/pdf/Water%20abstraction%20and%20use%20-%20Eflows.pdf (last accessed 28 June 2017).

86 Under Art 4(4)–(7), WFD.

87 CIS 31, p 24.

88 Ibid, p 62.

89 A Gustard et al A Study of Compensation Flows in the UK (Institute of Hydrology Report 99) (Institute of Hydrology: Wallingford, 1987) cited by Dunbar, MJ, Acreman, M and Kirk, S ‘Environmental flow setting in England and Wales: strategies for managing abstraction in catchments’ (2004) 18 Journal of Water and Environmental Management 5CrossRefGoogle Scholar; and now see A Gustard, A Bullock and JM Dixon Low Flow Estimation in the United Kingdom (Institute of Hydrology Report No. 108, 1992), available at http://nora.nerc.ac.uk/6050/1/IH_108.pdf (last accessed 28 June 2017); and see Reid, CT, Pillai, A and Black, AR ‘The emergence of environmental concerns: hydroelectric schemes in Scotland’ (2005) 17 Journal of Environmental Law 361CrossRefGoogle Scholar.

90 Now see s 21, Water Resources Act 1991, replacing s 19, Water Resources Act 1963, with detailed provisions under Schedule V to the 1991 Act.

91 Ibid s 21(2)(c), 1991 Act.

92 Ibid, s 40(2), 1991 Act.

93 Generally on the difficulties of determining flows, see MJ Dunbar and M Acreman ‘Defining environmental river flow requirements – a review’ (2004) 8 Hydrology and Earth System Sciences, available at https://www.researchgate.net/publication/26435294_Defining_Environmental_River_Flow_Requirements_-_A_Review (last accessed 28 June 2017).

94 UKTAG is a partnership of the UK environment and conservation agencies which was set up to provide coordinated advice on the science and technical aspects of the WFD by the UK-wide WFD policy group consisting of UK government administrations. See website available at http://www.wfduk.org/about-uktag-and-jagdag (last accessed 28 June 2017). UKTAG UK Environmental Standards and Conditions (Phase 2) Final (SR1 – 2007) March 2008, pp 54–55, available at http://www.wfduk.org/sites/default/files/Media/Environmental%20standards/Environmental%20standards%20phase%202_Final_110309.pdf (last accessed 28 June 2017).

95 From DEFRA Managing Abstraction and the Water Environment (2013) p 6, available at https://consult.defra.gov.uk/water/abstraction-reform/supporting_documents/abstractreformconsultmanage20131217.pdf (last accessed 28 June 2017).

96 Environment Agency Managing Water Abstraction (2013), available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/297309/LIT_4892_20f775.pdf (last accessed 28 June 2017).

97 DEFRA and Welsh Government Water Framework Directive implementation in England and Wales: New and Updated Standards to Protect the Water Environment (May 2014), see particularly ch 6 on water level flow standards, available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/307788/river-basin-planning-standards.pdf (last accessed 28 June 2017).

98 DEFRA and WG River Basin Planning Guidance 2014, available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/339471/river-basin-guidance-final.pdf (last accessed 28 June 2017).

99 Ibid, para 6.1.4.

100 UKTAG Updated Recommendations on Environmental Standards River Basin Management (2015-21), Final Report November 2013 (Minor amendments January 2014), see particularly ch 5 on River Flows, available at http://www.wfduk.org/sites/default/files/Media/Environmental%20standards/UKTAG%20Environmental%20Standards%20Phase%203%20Final%20Report%2004112013.pdf (last accessed 28 June 2017).

101 UKTAG UK Environmental Standards and Conditions (Phase 2) Final (SR1 – 2007) March 2008, pp 54–55, available at http://www.wfduk.org/sites/default/files/Media/Environmental%20standards/Environmental%20standards%20phase%202_Final_110309.pdf (last accessed 28 June 2017).

102 Above n 100 (UTAG 2013), p 59.

103 See also Mainstone, CP An Evidence Base for Setting Flow Targets to Protect River Habitat (Natural England Research Reports, Number 035) (Sheffield: Natural England, 2010)Google Scholar, available at http://publications.naturalengland.org.uk/publication/9025 (last accessed 28 June 2017).

104 See ss 33–34, Water Resources Act 1963, on licences of right.

105 See DEFRA Consultation Doc 2016 Changes to Water Abstraction Licensing Exemptions, available at https://consult.defra.gov.uk/water/water-abstraction-licensing-exemptions/supporting_documents/Consultation%20Document%20%20New%20Authorisations.pdf (last accessed 28 June 2016). This source also provides information on the 2009 and 2013 consultations.

106 S 27, Water Act 2003 came into effect in July 2012; and see website available at https://www.gov.uk/government/consultations/the-water-act-2003-withdrawal-of-compensation-on-the-grounds-of-serious-damage (last accessed 28 June 2017) on the 2012 consultation concerning withdrawal of compensation on grounds of serious damage under the Water Act 2003.

107 Ss 57, 58, Water Act 2014.

108 Para 104, 2016 Consultation.

109 Ibid, para 108.

110 Ibid, para 109.

111 CIS 31, p 29 refers to the guidance used in England and Wales.

112 O'Riordan, T Environmentalism (London: Pion/Cambridge, MA: Academic Press, 1976)Google Scholar.