Jan Brooke: ‘The long-awaited ruling of the Court of Justice of the EU on the Weser dredging case (C-461/13) defining deterioration under the Water Framework Directive was published on 1^st July 2015.

Whilst many of the Court’s findings reflect the approach already adopted in the UK, some of the points of detail clarified by the ruling nonetheless have potentially important implications for anyone proposing an activity or development that could affect the ecological or chemical status of a water body.

The details of the case are available at http://curia.europa.eu/juris/document/document.jsf?text=&docid=165446&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=9592.

The main conclusions of the Court are that:

1. Article 4(1)(a)(i) to (iii) of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy must be interpreted as meaning that the Member States are required — unless a derogation is granted — to refuse authorisation for an individual project where it may cause a deterioration of the status of a body of surface water or where it jeopardises the attainment of good surface water status or of good ecological potential and good surface water chemical status by the date laid down by the directive; and
2. The concept of ‘deterioration of the status’ of a body of surface water in Article 4(1)(a)(i) of Directive 2000/60 must be interpreted as meaning that there is deterioration as soon as the status of at least one of the quality elements, within the meaning of Annex V to the directive, falls by one class, even if that fall does not result in a fall in classification of the body of surface water as a whole. However, if the quality element concerned, within the meaning of that annex, is already in the lowest class, any deterioration of that element constitutes a ‘deterioration of the status’ of a body of surface water, within the meaning of Article 4(1)(a)(i).

The following list highlights a few additional points from the ruling that are of particular relevance in underpinning the Court’s conclusions. For reference, the number noted in brackets is the paragraph from which the bullet point is derived.

Dealing with the concept of deterioration

• Member States shall implement the necessary measures to prevent deterioration – in other words, Member States must act because the Directive has a binding status once water body status has been determined (31)
• It is re-confirmed that the Article 4(7) derogation can only be used if all practicable mitigation steps have been taken (46)
• A Member State cannot consider an individual project separately from the River Basin Management Plan (47)
•  The prevention of deterioration is not part of the overall objective of achieving good status but rather is an objective in its own right (49)
•  Unless a derogation is granted, any deterioration of status in a water body must be prevented, irrespective of the longer term planning provided for in the River Basin Management Plan and the Programme of Measures. Member States are therefore required to refuse authorisation for a project that will result in deterioration or will jeopardise the attainment of good status (50/51).

Within vs. between class deterioration

• The ruling notes that the argument made in the Weser case (i.e. that because the WFD classification of waters is determined by the one-out-all-out principle, deterioration of elements other than that/those currently determining status may not lead to a change in the overall classification of the water body) appears to run counter to the spirit of the WFD.  The ruling however concludes that, notwithstanding these various arguments made to the contrary, “if the concept of ‘deterioration’ is interpreted by reference to a quality element or a substance, the obligation to prevent deterioration of the status of a body of water retains all its practical effect” (66).
• The view should therefore be taken that deterioration in water body status will occur as soon as the status of at least one of the WFD quality elements falls by one class even if this does not result in a fall in the overall classification of the water body (69).
• If a water body is already at bad status (i.e. the lowest possible class), any fall in a quality element shall be interpreted as deterioration (69).