Interview with Marleen van Rijswick: “We need to get as close as possible to the objectives of the Water Framework Directive”

In a few years – in 2027 – European countries must have achieved the objectives of the Water Framework Directive (WFD, see box), except for exemptions. Marleen van Rijswick: “That is why everyone is getting so nervous now.” As professor of European and national water law at Utrecht University, she focuses on the question of how law can contribute to equitable and sustainable water management based on shared responsibilities.

The objectives of the WFD are about water in the European Union being in good condition and about healthy, resilient ecosystems. There have already been two extensions: the objectives were first to be achieved in 2015 and then in 2021. The Netherlands, like the other EU Member States, has therefore not met the earlier deadlines. “A bit strange,” Van Rijswick thinks, “because most of the obligations already existed under directives from the 1970s, 1980s and 1990s. The only real new element is ecosystem thinking.”

Digging in their heels

Unfortunately, it is already clear that the Netherlands will not achieve the objectives in 2027 either, and many other countries will not either. “There is too little time for everything that still needs to be done.” This is also shown in recent reports by the Council for the Environment and Infrastructure and Witteveen and Bos. “Especially the nutrient problem, the amount of fertilisers on land, is too large. Furthermore, wastewater treatment plants, our own manure, are a problem. Pharmaceutical residues and other new substances are also not yet properly under control or not yet regulated.”

Marleen van Rijswick obtained her PhD in 2001 with research on legal instruments to improve water quality and has followed the Water Framework Directive from the beginning. She refers to the Aquarein report that Wageningen University published in 2003 on behalf of the Ministry of Agriculture, Nature and Food Quality. “The authors had investigated what it would mean if the Netherlands met all objectives in 2015 and if all waters were classified as natural waters. They assumed a worst case scenario, which is far removed from reality. The conclusion was that then no agriculture would be possible in the Netherlands. Then everyone dug in their heels.”

In addition to fertilisers that pollute the water she mentions pesticides and in that context the recent proposal to ban glyphosate, but that it may still be used for the next ten years. “The Nature Restoration Law, which is currently on hold, could also be very helpful for achieving good water quality. Those kinds of things of course do not help to reach your goals in time.”

No sacrifices

And although for many chemical substances the deadline has been met, this is not the case for a number of others, Van Rijswick explains. “The so-called one out, all out principle: if you do not comply for one substance, then you have not achieved the objectives of the WFD. That is of course somewhat discouraging for people who have made a lot of effort. On the other hand: we must be careful not to become paralysed and give up.”

New chemical substances also keep coming onto the market and there is no immediate legislation for them. It is not yet known how harmful they are and setting standards takes time. “That has to be done very carefully. In the meantime, these new substances do of course cause worse water quality.”

That it is so difficult to achieve the objectives, the professor also attributes to strong lobbying: “People are not willing to make those sacrifices. Not only farmers or industry, especially politics not. The political tendency now is mainly: let’s not get in anyone’s way. Do not hinder economic activities or subject agriculture to restrictions.”

Who discharges where and what

Van Rijswick also points to the fact that there is no good, up-to-date overview of issued permits: of who discharges what and where. “That is a very worrying aspect. Because if you do not know which harmful substances end up in the water, then you also do not know what is needed to address it.”

The permits of Rijkswaterstaat and the water boards are called direct discharges: these go directly into rivers, for example the Meuse or tributaries. In addition, you have regulation of discharges by municipalities, through general rules or permits: indirect discharges that first go into the sewer system and are treated and then end up in rivers.

Especially the indirect discharges are not well known. “Many municipalities do not know exactly what is being discharged. But Rijkswaterstaat and the water boards also do not have a completely clear picture of what is permitted and these permits are often outdated.” The Ministry of Infrastructure and Water Management has, with regard to the objectives of the Water Framework Directive, started the ‘WFD impulse programme’ last year to map and update permits of Rijkswaterstaat, among other things.

No political urgency

The reason for these delays? Van Rijswick: “A major lack of capacity for inspection and enforcement. And supervision and enforcement have of course not really had political priority in recent decades. As a result there is no money to free up time for this, to develop knowledge and to train and hire people. If it is not a priority, it does not happen.” She adds: “I do think that in recent times we have been so careless and reckless with our environment that there are now enormous backlogs, causing one crisis after another.”

RIWA-Maas has made a start with an overview of direct and indirect permits in an Excel file. Van Rijswick: “This is very positive. A very important first step. Environmental organisations would of course very much like to have this list.” In addition she says: “Actually the government should do this. We have legislation stating that those permits are public and the Water Framework Directive also requires that permits are up to date. So you should actually be able to view them very easily.”

Fines and penalty payments

What if we do not achieve the objectives? Van Rijswick: “First of all, the goal of Europe is to have sufficiently healthy water. When our water quality deteriorates, that is of course harmful to human health and to nature. That is the most important argument for wanting to achieve the WFD objectives, but this often receives too little attention.”

In addition, the European Commission can bring a Member State before the Court of Justice of the European Union. A Member State can, if it does not meet the objectives, invoke exemption grounds provided for in the Water Framework Directive, Van Rijswick explains. For example in cases of force majeure such as extreme weather. Or if dikes must be built or dams for sustainable energy, or river restoration is needed. “Then water quality temporarily declines. If you have good reasons, you can rely on an exemption.”

If no valid exemption applies, the court can convict a country. “That may just be a piece of paper, but it does not look good and you have to do something about it.” Because a Member State can also receive fines and penalty payments. For the Netherlands this is a fine of up to €40 million per year and a penalty payment of a maximum of €219,170.40 per day. “That really adds up.”

Lawsuits against companies

If the objectives are not achieved in 2027, environmental organisations and other parties can also challenge permits in court. That is already possible today if there is deterioration of water quality. “That is even more risky, because then you end up in national court,” says Van Rijswick. “And then it can happen that a company no longer receives a permit because standards are exceeded and no further pollution is allowed. That has all kinds of negative consequences for the economy and can lead to an unfair distribution of burdens due to not meeting the objectives in time.” Such lawsuits are already being prepared, she says, for example by the Dutch organisation Mobilisation for the Environment (MOB), which previously brought and won nitrogen cases. Will companies in other countries in the Meuse river basin also suffer from this? “Yes, certainly,” Van Rijswick responds. The Netherlands recently started a lawsuit against Flanders for discharges into the Scheldt flowing into the Netherlands. And the Belgian government has just started a case against the Netherlands because of discharges from Chemelot into the Meuse near Sittard-Geleen. “That is why international cooperation is so extremely important. If you consider that one third of the pollution in the Meuse comes from abroad, more attention should be given to that, although we produce most of the pollution ourselves. In short, you have to follow both tracks.”

The Water Framework Directive contains the obligation that countries sharing a river basin, as is the case with the Meuse, must cooperate. “We should no longer only look at the place where a certain pollution occurs, but at the entire river basin. Mapping which pollution sources there are and how we can solve that together.”

Delay behaviour

The Netherlands has in fact from the beginning intended to fully use the extensions of the Water Framework Directive, Van Rijswick further explains. Other countries have also used the extension options. “That delay behaviour has cost many years: also discussing what kind of obligation it is, whether it is feasible and affordable, looking for loopholes has turned out to be counterproductive for achieving the objectives in time.”

She also says: “If everyone had simply taken their own responsibility instead of pointing at each other, we would of course have been much further.” The fact that so many parties are responsible for water quality does not help: water boards, Rijkswaterstaat, the Ministry of Agriculture, Nature and Food Quality, municipalities, provinces and companies.

Taking responsibility

Van Rijswick has therefore been working on the Water Framework Directive for about 25 years. “It turns out to be a very tricky issue,” she says. “And that is also because we Dutch are extremely spoiled. We live in a delta that is very dangerous, but we all feel safe because constant investments are made in water safety. The same applies to our drinking water. We can drink water from the tap, swim outside in summer without fear of catching diseases. In many countries that is different. The sense of urgency is lacking with us. Not only among people, unfortunately also in government, which is responsible for a healthy environment and the health of its citizens.”

Still she believes we must now do everything possible to get as close as possible to the WFD objectives. “We must all take that responsibility. All involved parties. Also because a court looks differently at a country that has done everything to achieve the objectives than at a country that tries to get out of the agreements. And maybe we will reach those objectives a few years after 2027.”