Hints of a Changing Water Framework Directive in the UK
Following on from Sir James Bevan’s (Chief Executive of the Environment Agency) 04 August 2020 speech entitled ‘In praise of red tape: getting regulation right’, the issue of red tape and the Water Framework Directive (WFD) has become a ‘hot topic’ spurring a number of press articles, for example the Guardian’s article on 19 August 2020 entitled ‘Environment Agency chief supports plan to weaken river pollution rules’. But has Sir Benan’s speech been misquoted in the newspaper articles?
The WFD is a piece of EU Legislation that provides EU Member States with a framework with which to implement the River Basin Management Cycles that include steps of delineation, characterisation, classification and reporting through River Basin Management Plans (RBMPs) leading to the formation of Programmes of Measures for improvement. This is the first piece of overarching legislation that has provided an integrated approach incorporating water quality, water quantity and aquatic ecology to understand the health of natural waters (rivers, lakes and groundwater) and heavily modified and artificial waterbodies (river navigations, canals and reservoirs). Post Brexit, the WFD has been transposed into legislation in England and Wales.
Having read Sir Bevan’s speech, he states that “there are lots of great things about the WFD, in particular its recognition that water quality is perhaps the biggest single X factor for the environment; that water bodies need to be managed in an integrated way as part of catchments; and that the health of rivers is not just about the chemicals that should or shouldn’t be in them but their biology and hydromorphology.” Sir Bevan summarised the outcomes of the 2016 classification results; 14% of England’s rivers were at Good overall status, 79% of WFD classification elements returned good status.
The results of the third and latest classification (2019) are available on Catchment Data Explorer. What is noticeable in the latest classification is a greater variety of chemical parameters in the Chemical Status test due to the inclusion of Priority Hazardous Substances; a result of more detailed monitoring undertaken by the Environment Agency. The Rivers Trust’s 17/08/2020 press release, illustrates that the 14% reduction in Good overall status waterbodies to zero is not the result of any significant change in Ecological Status, but results from a significant change in Chemical Status and acknowledges that this is due to more detailed monitoring data being available for classification, proving the adage that looking in more detail tends to find more detail, in this case indicative of more widespread pollution pressures and impact. The criticism being levelled at the Environment Agency is that programmes of measures have not resulted in progressive improvement in the numbers of rivers at Good overall status (with acknowledged funding constraints upon the Environment Agency), however it is difficult to compare 2016 and 2019 classifications directly so it is also difficult to judge the efficacy of programmes of measures over the last 6-year cycle.
In his speech, Sir Bevan is trying to highlight; that once the Brexit transitional arrangements come to an end there are opportunities for to the UK to cut ‘red tape’ to reduce bureaucracy, regulation for its own sake, or bad regulation. Sir Bevan goes on to say that he considers that the WFD requires reformation mainly due to its ‘one out all out’ rule, under which rivers fail to meet the required status if they fail on any of the four categories in the directive: biological (phytoplankton, macroalgae, fish, invertebrates, etc), physical-chemical (temperature, pH, dissolved oxygen, ammonia, etc), chemical (concentrations of pollutants like arsenic and iron), and hydromorphology. Yet it’s Sir Bevan’s opposition to the ‘one out all out’ rule that has caught the attention of the press and campaigners, accusing him of “trying to ‘rig system’ and cover up decades of failure.”2 as was reported on 17 September 2020 (‘Shocking state of English rivers revealed as all of them fail pollution tests’)
Removing the ‘one out all out’ rule will be concerning to many. This mechanism prevents rivers that are failing due to cumulative impacts becoming overlooked. For example, a failure of the phosphate classification element, which is often a result of treated sewage effluent discharges and/or diffuse agricultural inputs to rivers, is another indicator of potential impact for biological quality elements. The aim of the WFD is to improve and maintain the quality of rivers based on a wide range of factors relating to potential impacts, so could removing the ‘one out, all out’ approach lead to complacency and a ‘that’s good enough’ attitude if two or three of the factors have met their target?
Another opposition to the ‘one out, all out’ rule is based on the suggestion that “it can force regulators and others to focus time and resources on indicators that may not make much difference to the actual water quality, or where we realistically cannot achieve one of the criteria”. However, the WFD already takes account of cumulative urban factors preventing an across the board good status in all factors from the assessment. The WFD recognises that an urban river, which has had its banks historically modified is likely to fail the hydromorphological test as it is not ’natural’ but ‘heavily modified’, but this would not count towards the ‘one out all out’ rule. However, multiple pressures typical of urban centres would, and the mechanisms are there to record that improvement in the current 6-year cycle is not technically or economically feasible, until future technological or legislative changes make improvement feasible. It would be more than beneficial to retain such clearly impacted water bodies as these in the classification and formulation of improvement measures.
We do not yet know what Sir James Bevan’s suggested reforms would comprise. But it is clear that for reforms to streamline the WFD, enhance it for the UK and thereby remove any red tape, this would have to be done very carefully to ensure that it not only enables a “green recovery” to occur but ensures that it also benefits the water environment. With the consultation of the Cycle 3 draft River Basin Management Plan (RBMP) due to open in October 2020 (closing April 2021), reform of the WFD is likely to remain a pertinent issue for some time to come. “Much of it was written by UK experts”, and let’s hope that any reform of the WFD is similarly led by UK experts and thoroughly consulted upon to ensure adequate protection and active improvement of the British water environment.
 The Water Environment (Water Framework Directive) (England and Wales) Regulations 2017.