An interpretation of the legal obligations of the Water Framework Directive with respect to monitoring
By Peter Howsam, Cranfield University Policy & Legislation Unit, Institute of Water & Environment
With respect to environmental water quality, monitoring is an essential management tool, both in general and site-specific terms:
With regard to the legal framework for monitoring, we are concerned with obligations covering both monitoring action and monitoring data; i.e. what duties (for water quality monitoring, under specific pieces of legislation, applicable to specific bodies of water) apply to what players (regulator, regulated and others).
Water Resources Act 1991 – s84 (2) – “It shall be the duty of the Authority, for the purposes of the carrying out of its functions under the water pollution provisions of this Act, (a) to monitor the extent of pollution in controlled waters”
In relation to monitoring, the Act provides: powers of entry, powers to request information, powers to require self-monitoring (which since 1995 can be used as admissible evidence), and powers to conduct remote monitoring of water quality on private land.
With regard to freshwaters, general monitoring has occurred since 1958. Various classification schemes (NWC and GQA) have been used, based on the data provided. Monitoring of marine waters has on the other hand been relatively limited.
Under European Directives, monitoring requirements are much more prescriptive. Failure to meet monitoring obligations is just as much a failure to implement a Directive, as is a failure to meet a water quality objective. Examples of Directives that impose standards are Surface Waters abstracted for Drinking Water, Bathing Waters, and Shellfish Waters.
The current position is that there is:
- some temporal data on designated sites – here strict legal obligations ensure that resources are found to monitor
- some temporally limited data on individual sites where incidence of pollution occurs
- relatively poorer data availability on undesignated waters because low priority for general water quality assessment means that resources to monitor have not been available
NB in comparison, under the Water Framework Directive all waters are protected and resources will have to be found for an increased scope for monitoring.
The Water Framework Directive
The devil lies both in the science (data and understanding required to established reference conditions and set ‘good status’ for water bodies) and the context (the legal and institutional framework) of its requirements. The Directive came into force in Dec 2000 and was transposed into national legislation in Dec 2003.
Article 1 – sets out the purpose of the Directive, the elements of which are:
- to prevent deterioration of, and where necessary enhance, the status of aquatic and related ecosystems;
- to ensure reduction/prevention of groundwater pollution;
- to aim to progressively reduce and for priority substances eliminate, pollution from hazardous substances;
Annex V – sets out that the achievement of good status will, for surface waters, be based on ecological and chemical condition, using biological, hydromorphological and physico-chemical parameters; and for groundwaters be based on quantitative and chemical condition
The process will be to identify water bodies, establish reference conditions, identify pressures (sources of pollution), assess impact and put in place interventions (‘programme of measures’) to achieve objectives via River Basin Management Plans.
Monitoring is an important feature of the Directive:
Article 8 – Monitoring of surface water status, groundwater status and protected areas:
1. “Member States shall ensure the establishment of programmes for the monitoring of water status in order to establish a coherent and comprehensive overview of water status within each river basin district:
- for surface waters, such programmes shall cover:
- (i) the volume and level or rate of flow to the extent relevant for ecological and chemical status and ecological potential,
- (ii) the ecological and chemical status and ecological potential;
– for groundwaters, such programmes shall cover monitoring of the chemical and quantitative status
– for protected areas, the above programmes shall be supplemented by those specifications contained in Community legislation under which the individual protected areas have been established.
2. These programmes shall be operational at the latest six years after the date of entry into force of this Directive unless otherwise specified in the legislation concerned. Such monitoring shall be in accordance with the requirements of Annex V.
3. Technical specifications and standardised methods for analysis and monitoring of water status shall be laid down in accordance with the procedure laid down in Article 21.
Annex V sets out the requirements for the different forms of monitoring.
For surveillance monitoring
Member States shall establish surveillance monitoring programmes to provide information for:
- supplementing and validating the impact assessment procedure detailed in Annex II,
- the efficient and effective design of future monitoring programmes,
- the assessment of long-term changes in natural conditions, and
- the assessment of long-term changes resulting from widespread anthropogenic activity.
For operational monitoring
Operational monitoring shall be undertaken in order to:
- establish the status of those bodies identified as being at risk of failing to meet their environmental objectives, and
- assess any changes in the status of such bodies resulting from the programmes of measures.
For investigative monitoring
Investigative monitoring shall be carried out:
- where the reason for any exceedances is unknown,
- where surveillance monitoring indicates that the objectives set out in Article 4 for a body of water are not likely to be achieved and operational monitoring has not already been established, in order to ascertain the causes of a water body or water bodies failing to achieve the environmental objectives, or
- to ascertain the magnitude and impacts of accidental pollution, and shall inform the establishment of a programme of measures for the achievement of the environmental objectives and specific measures necessary to remedy the effects of accidental pollution.
Other parts of the Directive refer to specific aspects of monitoring.
Article 7(1) – “Member States shall monitor, in accordance with Annex V, those bodies of water which according to Annex V, provide more than 100 m3 a day as an average;”
Article 11(5) – “Where monitoring or other data indicate that the objectives set under Article 4 for the body of water are unlikely to be achieved, the Member State shall ensure that: causes of failure are investigated;
relevant authorisations are reviewed;
monitoring programs are reviewed and adjusted;
additional measures are established;
Article 15(2) – “Member states shall submit summary reports of: … – the monitoring programmes designed under Article 8;”
Pre-amble 36 – “The development of water status should be monitored by Member States on a systematic and comparable basis throughout the Community. This information is necessary in order to provide a sound basis for Member States to develop programmes of measures aimed at achieving the objectives established under this Directive;”
Pre-amble 49 – “ ….the standardisation of monitoring, sampling and analysis methods should be adopted by committee procedure.”
Recommended sources of information
1. Howarth, W. & McGillivray, D. 2001. Water Pollution and Water Quality Law.
Shaw & Sons
2. Directive 2000/60/EC establishing a framework for Community action in the field
of water policy [ Water Framework Directive ]
3. European Communities 2003. Common Implementation Strategy for the Water Framework
Directive (2000/60/EC) Guidance Document No.7 – Monitoring under the Water Framework
4. The Water Environment (Water Framework Directive) (England & Wales) Regulations
2003 [SI 2003/3242]
5. Water Resources Act 1991 Ch.97
6. Environment Agency [ http://www.environment-agency.gov.uk/
7. Scottish Environment Protection Agency [ http://www.sepa.org.uk/