Common Implementation Strategy for the Water Framework Directive - Ad-hoc Task Group on Article 4(7) guidance

Transcription

1 Common Implementation Strategy for the Water Framework Directive - Ad-hoc Task Group on Article 4(7) guidance Template for the collection of case studies on WFD Art. 4(7) Introduction In the framework of the Common Implementation Strategy (CIS) for the Water Framework Directive, the Guidance Document nr.20 on Environmental Objectives and Exemptions 1, adopted in 2008, deals with the exemptions under Article 4 of the WFD. This guidance has been a tool for the application of exemptions under the WFD. Since this guidance was adopted, Member States have gained valuable practical experience in the implementation during the first cycle of River Basin Management Plans (RBMPs), which has shown concrete issues that would greatly benefit from an updated guidance. Remaining shortcomings in the application of exemptions, including Article 4(7), in particular the lack or inadequate justification, are outlined in the 4 th WFD Implementation Report 2 and have been identified as one of the areas that will need improvement in the WFD implementation. The Commission and Member States have in particular identified the need to develop more detailed guidance on the application of Article 4(7) for new modifications and for new sustainable human development activities. In the context of this template, new modifications are understood as both modifications to the physical characteristics of surface water bodies or alterations to the level of groundwater bodies. A specific Ad-hoc Task Group (ATG) has been established in the frame of the CIS for this purpose, co-led by the Commission, France, Belgium (Flanders) and WWF. In this context, a first workshop on Exemptions under Article 4(7) of the WFD will be organised on December 2016 (Brussels). In preparation for this workshop, case studies will be collected from Member States and stakeholders, including representatives of relevant sectors, to gain a better understanding on experiences and remaining challenges in the practical application of Article 4(7). These case studies will feed into a Key Issues Paper, which will be used to guide the discussions at the workshop and serve as a basis for drafting a practical guidance document on the application of Art.4(7) in The Key Issues Paper will inter alia address the scope for the application of Art.4(7), the estimation of impacts on water status, the conditions for granting exemptions under Art.4(7) as well as links with other Directives. You are kindly encouraged to contribute relevant case studies, so that sufficient material is available to enable practical oriented discussions at the upcoming workshop in December. Your input will be crucial to make the discussions useful. 1 2 See: See: 1

2 Please note: Your case studies do not necessarily have to cover the full process of application of Art. 4(7), but can address only specific aspects and conditions. They can also address specific guidance documents or approaches which were elaborated for the application of Art. 4(7). We are looking for practical examples and experiences (positive or negative) to illustrate the key issues for discussion. The case studies will be used as a means to illustrate problems encountered with the application of Art. 4(7), practical solutions or both. The case studies are planned to be referenced in relevant sections of the Key Issues Paper for the workshop and will be made publicly available on CIRCA. In case you have questions, please contact: Raimund.Mair@ec.europa.eu. Please return the filled-in template by 4 th November 2016 at the latest to: thomas.dworak@freshthoughts.eu. 2

3 1 Scope of case study Note: If you provide more than one case, please fill in a separate template for each case study. 1a. Country where the case study is located Norway 1b. Title of case study Engebø-permit. Disposal of mine tailings in a fjord. 1c. General information on the application of Art. 4(7) in this particular case study Water category(ies) of the case study (multiple ticks possible): ³River ³Lake ³ Transitional X Coastal ³ Artificial ³ Heavily modified ³ Groundwater body Type of activity/modification addressed in the case study (multiple ticks possible): ³Flood protection ³Hydropower ³Navigation X Mining ³Land drainage (for agriculture or other purpose) ³Irrigation dam ³Drinking water dam ³Coastal Defence 3

4 ³ Other If you have selected other, please name the activity/modification in the box below. <Text box> Status of the new modification or human development activity / case study: ³Completed ³Ongoing X Future Different aspects of Art. 4(7) which you address in this case study (multiple ticks possible): As indicated in the template introduction, your case study does not necessarily have to cover the full process of application of Art.4(7), but can address only specific aspects and conditions. Please tick the aspects addressed in your case study in the left-hand column below. [ [ [ Key aspects of Art.4(7) Estimating the impacts of a modification on water status/potential Practicable steps to mitigate adverse impacts (Art 4.7a) Assessing overriding public interest (Art 4.7c) [ Weighing benefits of the modification versus foregone benefits as a Possible issues to address in case study (open list) - Description of the tools used - Explanation of quality elements negatively impacted by project (biological, hymo, chemical and physico-chemical elements) - Assessment of cumulative impacts - Experience gained in the process of estimating impacts (how assessment was done, at what phase of the project cycle, results, dealing with uncertainties) - What mitigation steps were taken and how have they been selected? - How is practicability of measures interpreted? - Framework to define overriding public interest (local, regional, national, international level?) - How is overriding public interest defined in terms of flood protection, transport, economic growth, energy production? - What benefits of the project outweighed the benefits of achieving the WFD environmental 4

5 result of deterioration (Art 4.7c) [ Assessing significantly better environmental options (Art. 4.7d) ³ Relationship to the River Basin Management Plan (Art. 4.7b) ³ Links and synergies with other Directives objectives due to the project and how was this assessed (e.g. methodologies used for weighing the benefits)? - How were benefits for the public, the environment and society assessed? How were benefits of new modification/alteration assessed? - How was the weighing process undertaken in practice? - Which criteria were applied? - Which better environmental options were taken into account and how have they been developed and compared? - Identification of better options at project level - Identification of better options at strategic planning level, e.g. for hydropower - Do you have a general methodology to evaluate and choose the best environmental option? - How and at which stage of the project cycle has application of Art. 4(7) been reported in the RBMPs? - What were the reasons outlined in RBMPs for modifications/alterations? - Links to HMWB designation - Links to public consultation in the context of the RBMP - Have other documents and/or public consultations been used to report about the application of Art. 4(7)? Please describe the purpose. - Have objectives been reviewed after 6 years and how? - Links / synergies with the Strategic Environmental Impact Assessment, the Environmental Impact Assessment, the Habitats Directive, the Floods Directive, the Marine Strategy Framework Directive (including link to appropriate assessment), e.g., streamlined assessment of impacts, authorisation procedure, etc. - Strategic pre-planning approaches used You only need to fill in the rest of the template for those aspects you wish to provide a case study for. For any further explanation on the selection of aspects, please use the text box below. 5

6 2 Description of case study (main case study text) 2a. General information on the case study Please provide a general short description of the project, e.g. on the following: - Location of the Case Study (RBD, river basin, regional context) - If available, provide a map of the area - Size of project - Size of the water body/water bodies affected by the new modification or human development activity - Description of new modification or human development activity - Timeframe - Level of water deterioration and quality element affected Indicative text length of general information on the case (excluding potential map): 0.5 page Location: Western Norway see maps below. Ecoregion: Northern North Sea. Highly freshwater influenced fjord. Size of project: Deposition of 250 mill. tons of mine tailings on the sea floor (fjord) approximately 3,3 km 2. Depth of sea floor ca. 300 meters mine tailings building up to maximum 150 meters. Time frame: Planned mining activity for 30 to 50 years starting up in 2020 or later. Size of water body: 30 km 2. 6

7 Figure: Map of the water body, Førdefjorden ytre (30 km 2 ). 2b. Core description of the case study Please provide a description of the application of the relevant aspects of Art.4(7) you wish to address (refer back to tick-box list under Section 1c). The case study may illustrate problems encountered in the application of Art. 4(7), practical solutions that could be applied or both. Indicative text length of core description of the case: max. 2 pages 7

8 At the time the application was considered, the river basin management plans for the area was not yet adopted and applicable. The Environment Authority did, however, consider the application in accordance with article 4.7, and used the knowledge gained in the characterisation of the water bodies and the determination of ecological and chemical status. The ecological status is determined by several different quality elements (both biological, hydromorphological, and chemical and physical quality elements)... The area planned as a disposal site in the zoning plan is of approximately 4.4 km2. The water body is classified as having good ecological status. No status classification of the chemical status exists because of a lack of data. The pressures identified are 5 aquaculture sites. Sediments are insignificantly or little contaminated by heavy metals with values corresponding to very good or good. the quality element that is most sensitive to the impact that decides the ecological status of the water body. If any of these impacts cause the outer Førdefjord to deteriorate to a worse status class, it must be assessed whether the conditions for an exemption from the environmental objective [in WFD art. 4.7] are fulfilled. It is leaching from the tailings, which in this case may influence the chemical status. The chemical status is to be assessed in relation to threshold values established for water, sediments and biota. It is not possible to grant exemptions for exceeding these threshold values. The benthic fauna in the disposal area will disappear while the disposal takes place. The project is thus assessed to cause the ecological status of the water body to deteriorate to poor status. Consequently, the project subject to the application cannot be permitted unless the conditions are fulfilled. According to [WFD art. 4.7], changes in the physical characteristics of a water body can be permitted, if also the additional conditions are fulfilled. The assessment concludes that the planned disposal of tailings will lead to physical changes to the seabed in parts of the water body. [WFD art. 4.7 first indent] does not establish any limits for how much deterioration can be permitted if the other conditions are fulfilled. The enterprise has performed an assessment of alternatives to the Førdefjord as sites for the disposal of mining tailings. Based on the information about alternative disposal sites, the Environment Agency believes that [the lake] Vassetevannet can be an alternative to submarine disposal, but they have no reason to believe that it is a significantly better alternative in environmental terms. The disposal site will have a negative effect on the benthic fauna in the disposal site area and it will influence the status of the water body. It will not be possible to establish requirements to mitigate the negative impacts linked to the occupation of fjord areas, but requirements are set out to ensure that the status otherwise shall be the best possible in the case that a submarine disposal site is established. Such requirements will include a demand for monitoring to document that the requirements of the Water Regulations are complied with, combined with a requirement of mitigating measures and, if necessary, discontinuation of the activity if required to avoid a deterioration in the environmental status. Mitigating measures to limit dispersion are linked to the discharge system. They entail, amongst other things, adjusting the discharge point, adding flocculants and an optimum addition of saltwater as well as interruption criteria. Against this backdrop, it is our assessment that the Water Regulations do not impede permitting the physical intervention that the disposal represents. Additionally, an assessment must be made whether there can be a dispersion of particles to the areas outside of the area set aside for the disposal site that can entail a deterioration of the status. The 2014 supplementary studies show that the risk of dispersion outside of the disposal area is low. Additional reference is made to requirements to ensure that no dispersion will take place beyond the area set aside for the disposal site. Furthermore, a requirement is established of monitoring of relevant quality elements (like phytoplank- 8

9 ton, bottom-dwelling invertebrates, relevant chemical and physiochemical elements (sight depth, turbidity etc.), macroalgae and eelgrass, see annex V to the Water Regulations) in, amongst other thing, the surface water and just outside of the area set aside for a disposal site in the zoning plan as documentation that the status will not be worse than good. Similarly, it is presupposed that the project shall not cause a deterioration of adjacent water bodies (including middle Førdefjord with the status of a national salmon fjord). The Ministry of Climate and Environment seconds the Environment Agency's assessment that with the requirements that have been established, there will be no dispersion of particles outside of the area set aside for the disposal site that will cause a deterioration of the ecological status. The tailings contain metals that form part of the assessment of the ecological status. The levels are very low with limited potential for leaching and we make reference to the assessment of the Environment Agency that these metals will thus not have a negative impact on the quality elements of the Water Regulations or exceed threshold values for water region specific substances. The conclusion of the assessment pursuant to the Water Regulations (WFD article 4.7) The status of the water body outer Førdefjord will deteriorate from good ecological status to poor ecological status as a consequence of the physical changes in seabed conditions. The water body's status is presumed to remain very poor as long as the disposal takes place and for a long period of time thereafter. An exemption pursuant to section 12 of the Water Regulations is therefore necessary in order to permit the disposal. It is the Ministry's assessment that the conditions for exemption are satisfied. It is only the physical change that leads to the water body deteriorating and that no other impacts by the project will deteriorate the ecological status. The project will not lead to threshold values for water and biota being exceeded either. Threshold values for sediments will be applicable outside of the area set aside for a disposal site in the zoning plan, and the Agency believes that these threshold values will not be exceeded either. The Ministry seconds the Agency's assessment that the chemical status of outer Førdefjord will not deteriorate to poor status. The assessment is based on the information in the application, the impact study, the supplementary studies and updated information from the enterprise concerning the use of chemicals. To ensure that the status of the water body and adjacent water bodies does not deteriorate more than presupposed, a requirement of monitoring is established. A requirement is also established of interruption criteria that ensure that the activities must stop if the monitoring shows that the status becomes worse than what is presupposed. Status at present Following the decision to grant approve to dispose of mine tailing on the sea bed, NGOs submitted a formal complaint to the decision, alleging that the permit did not comply with (article 4.7) of the WFD. The EFTA Surveillance Authority considered the case, and has so far concluded to close the case. 3 Conclusions and lessons learned from this case study You may use this section to draw some overall conclusions and lessons learned from the experience gained when applying Art.4(7) in this case study. When initially considering the case, we only looked into the quality element considered to be the most sensitive (benthos, in this case). Later we have considered all quality elements. 9

10 When discussing metal content in the tailings, we found it relevant to look into bioavailable metals. 4 Issues and questions for the workshop on Art.4(7) Please indicate issues and/or questions which you would like to see addressed at the upcoming workshop on the application of Art.4(7) on December 2016, Brussels. Issues from section 3 (above): - How to deal with metals that are not bioavailable. - Should we define the water body as a heavily modified after finalising the project? 5 Links to further information You may use this section to provide links to further information related to the case study. You may use this section to provide links to national/regional guidance documents, if available 6 Case study contact information For potential clarifying questions, please provide information on the contact person(s) for the case study, including name, organisation, and telephone number. Harald Sørby and Anne Stoltenberg, Norwegian Environment Agency (harald.sorby@miljodir.no; anne.stoltenberg@miljodir.no) 10