Directive 2000/60/EC. A recent ruling by the Court of Justice of the European Union (CJEU) in the case of Peter Sweetman v An Bord Pleanala, Ireland and the Attorney General, Bradan Beo Teoranta, Galway County Council & the Environmental Protection Agency is of note.
This case concerned the interpretation of Directive 2000/60/EC. This is EU legislation which sets out a framework for the protection and improvement of water quality across various water bodies, including rivers, lakes, groundwater, and transitional coastal waters.
Understanding Directive 2000/60/EC
Directive 2000/60/EC is commonly known as the EU Water Framework Directive. In Ireland, this directive is implemented through the European Communities (Water Policy) Regulations 2003, which codifies EU legislation in national law.Purpose of Directive 2000/60/EC
- To prevent pollution of water bodies.
- To restoring the quality of all bodies of water within 15 years of its entry into force.
- To provide protection for aquatic ecosystems, dependent terrestrial ecosystems, and wetlands.
Some Key Components considered in this Directive:
- River Basin Management Plans (RBMPs)
A RBMP establishes legally binding environmental objectives that form the foundation of local water regulation and planning activities. These plans are crucial for protecting and improving the water environment. They are reviewed every six years, with the latest cycle covering 2022-2027.
- Water Policy Advisory Committee
This body was established in 2014 with relevant stakeholders. This committee provides essential policy advice on directive implementation and broader water resource issues. It meets four times a year.
- Regional and Local Authority Structures
Coordinated efforts are ensured through five regional committees, supported by the Local Authority Waters Programme (LAWPRO). LAWPRO promotes public engagement, provides technical advice, and manages funding for water initiatives.
Case C-301/22 Peter Sweetman v An Bord Pleanála and the operation of Directive 2000/60/EC
This case concerned a development plan involving the extraction of freshwater from Loch an Mhuilinn, a privately owned lake located in County Galway. The development’s proposal involved pumping a maximum of 4,680 m³ of freshwater per week via a temporary pipeline. The intended use of the abstracted water was for bathing local diseased salmon to address amoebic gill disease and sea lice.An Bord Pleanála in this case
An Bord Pleanála approved this development in 2018.The Legal Challenge
Mr. Sweetman contested the decision by An Bord Pleanála contending that the approval was in contravention of EU Directive 2000/60/EC.The High Court Ruling
The High Court invalidated the Board’s decision on 15 January 2021, citing non-compliance with Directive 2000/60/EC.
The court determined that the Environmental Protection Agency (EPA) failed to assign a specific status to Loch an Mhuilinn as mandated by Directive 2000/60/EC.
Directive 2000/60/EC stipulates that all water bodies in the EU must undergo evaluation and monitoring and then be assigned with their correct ecological and chemical status. This ensures correct planning can be then made to promote water quality and prevent deterioration. However, in this case, the EPA did not fulfil this obligation and assign a status, leading to uncertainties regarding the environmental impact of the proposed water abstraction project.
As a result, the High Court held that the Board could not have adequately assessed the development’s compliance with the directive’s environmental quality objectives.
From the High Court to the Court of Justice of the European Union
Following the High Court’s decision, questions arose regarding why Loch an Mhuilinn had not been classified as a water body under Directive 2000/60/EC and given a status. The Planning Board sought clarification from the Environmental Protection Agency (EPA) on this matter.
The EPA’s response indicated that only lakes larger than 0.5 km² are typically classified under the directive, with smaller lakes considered only if deemed significant. For example, if they were in a protected area. As Loch an Mhuilinn did not meet this size threshold and was not considered significant, the EPA did not classify it.
Subsequently, based on the EPA’s explanation provided in January 2021, the Planning Board requested to reopen the case. Recognizing the potential impact of this new information, the High Court granted the request, allowing for further examination of the classification issue.
The High Court Referral to Europe
The High Court sought guidance from the Court of Justice of the European Union through a preliminary ruling, which involves asking a higher court for clarification on the interpretation or validity of a law in a specific case.
The High Court’s inquiry was largely influenced by a previous European case[1] that mandated the analysis and classification of all water bodies. This led the High Court to question whether the term “all water bodies” encompassed bodies of water of any size, irrespective of size, under Directive 2000/60/EC.
For the preliminary hearing, the High Court divided this inquiry into three distinct questions, which were subsequently referred to the European Court of Justice. The referral and responses are set out below.
[1] Bund für Umwelt und Naturschutz Deutschland (C‑461/13)- (a): Do Member States have to classify all water bodies, even small lakes below 0.5 km²?
The Court of Justice held that lakes below 0.5 km² are not required to establish reference conditions or monitoring programs under Directive 2000/60.
The court maintained an exception for small lakes, stating that some obligations of the directive[2] do not apply to lakes with a surface area below 0.5 km².
By exempting smaller lakes from the requirement to establish reference conditions or monitoring programs, the Court acknowledged the administrative challenges associated with managing numerous small water bodies. This recognition reflects a pragmatic approach to environmental management, considering the resources available to Member States.
The ruling acknowledged that the environmental impact of smaller lakes may not justify the same level of regulatory scrutiny as larger water bodies. This recognition allows authorities to focus their efforts and resources on areas where they are most needed, optimising the effectiveness of environmental protection measures.
While the directive sets out general principles and objectives, it also allows flexibility for Member States to adapt its implementation to their specific circumstances. The Court’s clarification respects this flexibility by not imposing unnecessary regulatory burdens on smaller water bodies unless they are deemed significant to the directive’s objectives.
- (b): Is there a different rule for water bodies in protected areas?
Although the lake in question was not situated within a protected area, the Court clarified that lakes below 0.5 km² are generally exempt from the obligations outlined in Directive 2000/60, regardless of whether they are located in protected areas or not.
The Court’s interpretation suggests that the size of the water body, rather than its location within a protected area, determines its exemption from certain obligations under the directive.
[2] Those under Articles 4(1)(a)(i) and (ii)
- If the answer to 1(a) is yes, can development consent be given before the water body is classified? Or is it a prerequisite to development?
(Note; in this case, if the court had answered that development consent could not be given until the classification was made then this development plan could not have been upheld.)
Given the answer to the first question, there was no need for the Court to answer this question.
- If the answer to 1(a) is no, what must a competent authority do when deciding on development consent for an unclassified water body?
The Court’s answered that a competent authority, when deciding on development consent for a project potentially affecting a lake with a surface area below 0.5 km² (an unclassified water body), must ensure:
- That the project does not cause deterioration of any surface water body identified by the Member State as a “type”. These “types” typically represent distinct categories of water bodies with unique characteristics and ecological importance.
- Additionally, authorities must ensure that the project won’t jeopardise the overall quality and health of surface water ecosystems in terms of both ecological aspects (like the health of aquatic life and habitats) and chemical aspects (such as water purity and contamination levels). This includes striving to maintain or improve what is referred to as “good surface water status,” which indicates a healthy and sustainable condition for these water bodies
- They must also guarantee it won’t violate the measures outlined in the river basin district program[3], which aims to protect and improve water quality through actions like pollution control and habitat restoration.
[3] established in accordance with Article 11 of Directive 2000/60
In summary
- The Court of Justice of the European Union ruled that lakes with a surface area below 0.5 km² are not obligated to establish type-specific reference conditions or monitoring programs under Directive 2000/60.
- Competent authorities must ensure that projects potentially affecting such small lakes do not cause deterioration of other surface water bodies identified as types, nor compromise good surface water status, ecological potential, and chemical status of those bodies.
- Authorities must also ensure that the project aligns with measures outlined in the river basin district program established according to Article 11 of Directive 2000/60.
Commentary
The clarification by the Court of Justice that lakes below 0.5 km² are not required to establish reference conditions or monitoring programs under Directive 2000/60 appears to lift a significant administrative burden on these states. This decision provides greater flexibility and saves resources that would have otherwise been needed for compliance.
However, it’s crucial to consider the implications for future authorities tasked with deciding on development consent for unclassified water bodies. It creates a lacuna in the law where the size of the body of water may mean that is has less environmental protection being not mandated for categorisation significantly undermining the efficacy of the Directive on a European basis and precluding the collection of timely monitoring data. From a logical perspective not monitoring the smaller water bodies feeding into the larger water bodies will create significant challenges in identifying the source of potential pollution.
Closing note
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