Exemptions and common implementation

There are a number of exemptions to the general environmental objectives which allow for less stringent objectives, for extension of the deadline for achieving good status beyond 2015, or for the implementation of new projects affecting the water status.

Starting with time limits, these may be extended if certain conditions are met. Extension is allowed when the Member State concerned determines that all necessary improvements in the status of bodies of water cannot reasonably be achieved within the timescales set out because:

• 1. The scale of improvements required can only be achieved in phases exceeding the timescale, for reasons of technical feasibility.
• 2. Completing the improvements within the timescale would be disproportionately expensive.
• 3. Natural conditions do not allow timely improvement in the status of the body of water.

No further deterioration in the status of the affected body of water may be allowed to occur. (Art 4.)

Member States also may aim to achieve less stringent environmental objectives than those normally required for specific bodies of water when they are so affected by human activity or their natural condition is such that the achievement of these objectives would be infeasible or disproportionately expensive. However, if the environmental and socioeconomic needs served by the human activity can be achieved by other means, which are a significantly better environmental option not entailing disproportionate costs, less stringent standards are not allowed. Additional conditions also apply, including that no further deterioration may occur in the status of the affected body of water.

Subject to certain conditions, temporary deterioration in the status of bodies of water is not seen as a violation of the Directive if it is the result of circumstances of natural cause or force majeure, which are exceptional or could not reasonably have been foreseen. (Art 4.)

A failure to achieve good status or to prevent deterioration in the status of a body of surface water or groundwater is also permissible if it is the result of new modifications to the physical characteristics of a surface water body or alterations to the level of bodies of groundwater, or if, in the case of failure to prevent deterioration from high status to good status of a body of surface water, it is the result of new sustainable human development activities. However, if the failure to achieve good status or prevent deterioration is not to be a violation of the WFD, all practicable steps must have been taken to mitigate the adverse impact on the status of the body of water. The reasons for those modifications or alterations, to be explained in the river basin management plan, must be of overriding public interest and/or the benefits to the environment and to society of achieving the environmental objectives must be outweighed by the new modifications or alterations’ benefits to human health, to the maintenance of human safety, or to sustainable development. A further prerequisite is that the beneficial objectives served by those modifications or alterations may not, for reasons of technical feasibility or disproportionate cost, be achieved by other means which are a significantly better environmental option.

Use of these exceptions from the environmental objectives must never result in a lowering of the protection compared to the EU legislation existing when the WFD was adopted. (Art 4.)

The Commission has found exemptions to be applied too widely and often without appropriate justification or without making clear what measures, if any, are taken to progress towards the environmental objectives.^[1]

The setting of ecological objectives by the Member States themselves, together with the rather wide permissible exemptions, can result in significant differences between Member States as regards what measures can be taken without breaching the

Directive as implemented. In order to promote coherent implementation the Member States, Norway, and the Commission have agreed on a Common Implementation Strategy (CIS), which has resulted in a number of guidance documents.^и This process and the resultant documents have been criticised for their unclear legal status and for not always being consistent with the WFD as such.³³

• [1] Communication from the Commission—The Water Framework Directive and the FloodsDirective: Actions towards the ‘good status’ of EU water and to reduce flood risks (3 March 2015) COM(2015) 120 final, 5.