2023

Marleen van Rijswick: "It is important to get as close as possible to the objectives of the Water Framework Directive"

The objectives of the Water Framework Directive (WFD) need to be achieved by 2027. Why are we not going to meet these targets and what are the consequences, including for the Meuse? Professor Marleen van Rijswick of Utrecht University talks about her view on this ‘vitriolic issue’. 

In a few years – by 2027 – European countries are obligated to have met the objectives of the Water Framework Directive (WFD, see box), save in exceptional cases. Marleen van Rijswick: "That's why everyone is getting so nervous right now." As Professor of European and National Water Law at Utrecht University, she focuses on how law can contribute to equitable and sustainable water management based on shared responsibilities.

The objectives of the WFD revolve around water in the European Union that is in good condition and, in addition, that there must be healthy, resilient ecosystems. There have already been two postponements: the targets were to be achieved first in 2015 and then in 2021. The Netherlands, like the rest of the European member states, did not meet the earlier deadlines. "A bit surprising," Van Rijswick says, "because most of the obligations were already laid out in directives that we had from the 70s, 80s and 90s. The only real new element is the ecosystem mindset."

Digging in heels

Unfortunately, it is already clear that the Netherlands is not going to meet the targets in 2027 either, just like many other countries. "There is too little time for everything that still needs to be done." This is evident from recent reports by the Council for the Environment and Witteveen and Bos. "The nutrient problem in particular, the amount of fertilisers on the land, is too complicated. Furthermore, the waste-water treatment plants, our own excrement, are an issue. Medicine residues and other new substances are not yet well controlled or regulated either."

Marleen van Rijswick received her PhD in 2001 for a study on legal instruments to improve water quality and has been following the Water Framework Directive since its inception. She points to the Aquarein report published by Wageningen University 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 the objectives in 2015 and all waters were considered natural waters. They assumed a worst-case scenario, which was a far cry from reality. The conclusion was that agriculture would no longer be possible in the Netherlands. Then everyone dug in their heels."

Besides fertilisers polluting the water, Van Rijswick mentions pesticides and, in that context, the recent proposal to ban glyphosate, but that it can now still be used for the next 10 years. "Also, the Nature Restoration Act which is on hold for now could be very helpful in achieving good water quality. Things like that obviously don't help you meet your goals in time."

No sacrifices

While we have met the deadline for a lot of chemicals, that is not yet the case for some of them, Van Rijswick explains. "The so-called 'one out, all out principle': if you fail to comply for one substance, then you have not met the WFD targets. This is, of course, a bit discouraging for people who have put in a lot of effort. On the other hand, we have to be careful not to paralyse ourselves and give up."

Furthermore, new chemicals are coming on to the market all the time and there is no immediate legislation for them. It is still unknown exactly how harmful these are, and standardisation takes time. "You have to do that very carefully. In the meantime, these new substances naturally result in poorer water quality."

Photo 1: Marleen van Rijswick, Professor of European and National Water Law at Utrecht University.

That it is so difficult to meet the targets, the professor attributes in part to the strong lobby: "People are not willing to make those sacrifices. Not just farmers or industry, but especially politicians. The main political trend now is: please, let us not put anything in anyone's way. Do not hamper economic activities or restrict agriculture.’

Who discharges where and what

Van Rijswick also points to the fact that there is no good, up-to-date overview of the permits granted: who discharges what and where. "That is a very worrying aspect. Because if you don't know what harmful substances are getting into the water, then you don't know what is needed to tackle the issue."

We don't know enough about the indirect discharges in particular, she also says. The permits issued by Rijkswaterstaat and the water boards are called the direct discharges: these go directly into the rivers, for example the Meuse or the tributaries. In addition, you have regulation of discharges by municipalities, by means of general rules or permits: the indirect discharges that first enter the sewage and are treated, only then making their way into the rivers.  "Many municipalities do not know exactly what companies are discharging. In addition, Rijkswaterstaat and the water boards don't have a clear picture of what exactly has been authorised and these permits are often outdated." In view of the targets to be met for the Water Framework Directive, the Ministry of Infrastructure and Water Management did launch the 'WFD Impulse Programme' last year to map and update Rijkswaterstaat's permits, among other things. 

No political urgency

The reason for these delays? Van Rijswick: "A major lack of capacity for monitoring and enforcement. And, of course, supervision and enforcement has not really been given political priority in recent decades. As a result, there is no money to spend time on this, to develop knowledge and to train and hire people for it. If it is not a priority, it does not happen." She adds to this: "I do think that in recent times we have been so lax and careless with our living environment that there are now huge backlogs, so that one crisis follows another." 

RIWA-Meuse has started making a list of direct and indirect permits in an Excel file. Van Rijswick: "This is very positive. It's a very important first step. Environmental organisations would of course very much like to have this list." In addition, she said: "Actually, the government ought to do this. We have legislation which says that these permits are public, and the WFD also requires that permits be up to date. You should actually be able to refer to them very easily." 

Fines and periodic penalty payments

What if we indeed fail to meet the targets? Van Rijswick: "First of all, Europe's goal is to have sufficient healthy water. When our water quality deteriorates, it is naturally detrimental to human health and nature. This is the main argument for wanting to meet the WFD objectives, but it often gets too little attention."

In addition, the European Commission can take a Member State to the European Court of Justice. If the targets are not met, a Member State can invoke exceptions provided for in the WFD, van Rijswick explains. For example, if there is force majeure, such as extreme weather. Or if it is necessary to build dykes or dams to generate renewable energy or if, for example, the restoration of brooks is necessary. "Then the quality goes down for a while at first. If you have good reasons, you can invoke an exception."

If there are no grounds to invoke an exception, the court can issue an order against a country. "That may only be a piece of paper, but it doesn't look good and you need to do something about it." After all, a Member State can also face fines and periodic penalty payments. For the Netherlands, this involves a fine of up to €40 million per year and a penalty of up to €219,170.40 per day. Van Rijswick: "Of course, that's definitely going to add up."

Legal cases against companies

If the targets are not met by 2027, environmental organisations and other parties can also submit appeals against permits. This can already be done today if there is a deterioration in water quality. "That's even more risky, because then you'll end up in the national court," says Van Rijswick. "And then a company may be denied a permit because standards have been exceeded and no further pollution is allowed. This has all kinds of negative effects on the economy and can lead to unfair distribution of the burden due to failure to comply in time." These kinds of lawsuits are already being prepared, she says, by, for example, the Dutch organisation Mobilisation for the Environment (MOB), which previously fought and won lawsuits over nitrogen emissions.

Will this also affect companies in the other countries that the Meuse river basin crosses? "Yes, it will" van Rijswick responds. The Netherlands recently launched a lawsuit against Flanders for discharges into the Scheldt River that flow into the Netherlands. And the Belgian government has just started a case against the Netherlands over discharges from Chemelot into the Meuse near Sittard-Geleen. "This is why international cooperation is so hugely important. When you consider that a third of the pollution in the Meuse originates outside the Netherlands, more attention should be paid to this, even though we are responsible for most of the pollution. In short, you need to approach the problem from both sides."

The WFD includes the obligation for countries sharing a river basin, as is the case with the Meuse, to cooperate. "We should no longer just look at where specific pollution occurs, but at the entire river basin, mapping the sources of pollution and how we can tackle them together." 

Continual postponement

The Netherlands has in fact planned to make full use of the extensions of the WFD from the beginning, Van Rijswick knows. The other countries have also taken advantage of the possibilities for postponement. "This continual postponement has led to many years of delay: discussing what kind of obligation it is, whether it is feasible and affordable and looking for makeshift solutions have proved counterproductive to meet the goals on time. 

In addition, she said: "If everyone had just accepted their own responsibility, instead of pointing the finger at each other we would obviously have been much further ahead." The fact that so many parties are responsible for water quality does not help: the water boards, Rijkswaterstaat, the Ministry of Agriculture, Nature and Food Quality, municipalities, provincial authorities and companies.

Accepting responsibility

Van Rijswick has been working on the Water Framework Directive (WFD) for about 25 years. "It has proved to be a very prickly issue," she says. "And that's partly because we Dutch are very spoiled. We live in a delta that is very dangerous, but we all feel safe because the government is constantly investing 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 nasty diseases. In many countries this is not the case. We lack a sense of urgency. Not only people, but unfortunately also the government, which after all is responsible for ensuring a healthy environment and the health of citizens."

Nevertheless, she believes we should now do everything possible to get as close as possible to WFD targets. "We all have to accept that responsibility. All those involved. Also because the court will look differently at a country that has done a lot to achieve the objectives than a country that keeps trying to get out from under the agreements made. And maybe we will meet those targets a few years after 2027."