Main authors: Froukje Maria Platjouw, Harriet Moore, Susanne Wuijts, Sandra Boekhold, Susanne Klages, Isobel Wright, Morten Graversgaard and Gerard Velthof
FAIRWAYiS Editor: Jane Brandt
Source document: »Platjouw F. M. et al. (2021) Coherence in EU law and policy for the protection of drinking water resources. FAIRWAY Project Deliverable 6.1R 200 pp

 

Here we discuss the legal requirements imposed by the Drinking Water Directive on states and/or the farming industry with a focus on ecological, monitoring and reporting, public participation (including farmer organisatons) and coordination requirements. The ecological requirements are subjected to a (vertical) coherence assessment of their contribution to FAIRWAY's objectives of protecting drinking water resources against pollution by nitrates and pesticides from agricultural practices. Finally we subject the DWD to a (horizontal) coherence assessment with the Water Framework, Groundwater,  Nitrates and Pesticides Directives to see how well each supports or constrains and counteracts the others.

Details of the analyses are contained in the Appendices of the full report:


Contents table
1. Overview of the Drinking Water Directive
2. Contribution of the Drinking Water Directive's requirements to achieving FAIRWAY's objectives
3. Coherence of the Drinking Water Directive with other directives

1. Overview of the Drinking Water Directive

The 1998 Drinking Water Directive (DWD) concerns the quality of water intended for human consumption. Its objective is to protect human health from adverse effects of any contamination of water intended for human consumption by ensuring that it is wholesome and clean. The DWD sets minimum quality standards for water intended for human consumption.

The Directive applies to all distribution systems serving more than 50 people or supplying more than 10 cubic meter per day, but also distribution systems serving less than 50 people/supplying less than 10 cubic meter per day if the water is supplied as part of an economic activity. The Directive also applies to drinking water from tankers; drinking water in bottles or containers; and water used in the food-processing industry, unless the competent national authorities are satisfied that the quality of the water cannot affect the wholesomeness of the foodstuff in its finished form.

Member states are required to take all necessary measures to ensure that the water intended for human consumption is wholesome and clean and in no circumstances those measures have the effect of allowing any deterioration of the present quality of water intended for human consumption. Furthermore, member states should set the values applicable to water intended for human consumption for the parameters set out in Annex I of the DWD. The values shall not be less stringent that those set in Annex I; moreover, they will set values for additional parameters not included in Annex I, where the protection of human health within their national territory of part of it so requires. Member states shall also take all necessary measures to ensure that no substances, materials for new installations, impurities associated with such materials remain in the water intended for human consumption.

Member states are required to monitor regularly the quality of water intended for human consumption, and to ensure that any failure to meet the parametric values is investigated and corrected through remedial action as soon as possible. Currently, a total of 48 microbiological, chemical and indicator parameters must be monitored and tested regularly, including nitrates and pesticides.

The DWD allows member states to prohibit or restrict the use of the respective water supply if health protection reasons impose it. Consumers should be informed promptly thereof and be given the necessary advice.

Member states may, for a limited time depart from chemical quality standards specified in the Directive (Annex I). Derogations can be granted, provided it does not constitute a potential danger to human health and provided that the supply of water intended for human consumption in the area concerned cannot be maintained by any other reasonable means.

On 1 February 2018, the European Commission adopted a proposal for a revised drinking water directive to improve the quality of drinking water and provide greater access and information to citizens. The proposal updates existing safety standards in line with latest recommendations of the World Health Organisation (WHO) and ensures that drinking water is safe to use for the decades to come. The proposal also improves access to information for citizens.

2. Contribution of the Drinking Water Directive's requirements to achieving FAIRWAY's objectives

Table 2.3 Requirements and objectives of the DWD

Label Requirements and objectives of the DWD
Protect from contamination To protect human health from the adverse effects of any contamination of water intended for human consumption by ensuring that it is wholesome and clean (art. 1)
Free from harmful substances To ensure that water used for human consumption should be free from any microorganisms and parasites and from any substances which, in numbers or concentrations, constitute a potential danger to human health (art. 2, annex 1)
Prevent deterioration and pollution To ensure that measures taken do not cause any deterioration or increasing pollution of waters used for drinking water (art. 4)
Take remedial action If, despite the measures taken, water does not comply with the standards, and is used in public premises and establishments, further remedial action should be taken to restore its quality as soon as possible (or in accordance with the extent to which the relevant parametric value has been exceeded) (art. 8)
Prevent deterioration from infrastructure Materials used in new infrastructure should not deteriorate in any way the quality of water for human consumption (art. 10)

Figure 2.3 demonstrates that respondents perceive that the requirement related to the protection against contamination of water intended for human consumption (Art. 1 DWD) is indivisible (+3) to the FAIRWAY objective. Respondent scores contained very little variability as 90% gave a score of +3. This suggests that they believe that this requirement is highly contributive to the FAIRWAY objective. Similarly, the requirement to ensure that measures taken avoid increasing pollution of drinking water resources (Art. 4 DWD) is also perceived to be indivisible (+3) pursuant to 80% of the partners consulted.

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Figure 2.3

Requirements related to ensuring that water is free from harmful substances (Art. 2) and related to taking remedial action (Art. 8) were also perceived to contribute positively to the FAIRWAY objective. However, scores were more varied. Only 50% of the respondents felt that the requirement to ensure water is free from harmful substances is indivisible (+3) to FAIRWAY objective, while 60% felt that requirements to take remedial action were indivisible (+3). With regards to both requirements, 20% of respondents suggested the interaction with FAIRWAY objectives is neutral (0), meaning that these requirements incur no significant positive or negative interactions with the FAIRWAY objective.

Scores given by respondents about the requirement related to the use of materials in new infrastructure (Art. 10 DWD) was not perceived to be of importance to the FAIRWAY objective; 70% of respondents suggested the interaction is neutral (0).

Responses to open-ended survey items give some explanation about the variability between scores for different requirements. Comments by respondents suggest that some requirements are more directly relevant to the FAIRWAY objective to protect drinking water resources against pollution by pesticides and nitrates from agricultural practices compared to others. For example, one participant suggested that the requirement related to materials in new infrastructure (Art. 10 DWD) is not contributive to the FAIRWAY objective since the construction of new infrastructure will seldom have an impact on nitrates and pesticides pollution.

These comments suggest that more direct contributions may be perceived more positively than less direct interactions between requirements of directives and the FAIRWAY objective. For example, the requirement related to remedial action (Art. 8 DWD) targets a different temporal scale of management compared to the FAIRWAY objective. Remedial action includes restoration of degraded resources, while the FAIRWAY objective is perhaps more focused on long term prevention of pollution. Thus, respondents may perceive a less direct relationship between the long-term goals of FAIRWAY, and the more immediate reactive purpose of restoration.

In addition, the requirement to ensure that water used for human consumption should be free from any micro-organisms, parasites and substances which, in numbers or concentrations, constitute a potential danger to human health (Art.2, annex 1 DWD) might be unclear in terms of their relevance for pollution by pesticides and nitrates. This might explain the more varied responses to this question. 40 For example, one respondent expressed uncertainty as to how nitrates and pesticides interact with micro-organisms and parasites.

The distinction between direct and indirect interactions between requirements of EU Directives, and the objectives of FAIRWAY is an important finding that may speak to more institutional barriers between conceptualization of water quality policy, and on ground practice.

3. Coherence of the Drinking Water Directive with other directives

The DWD contains several requirements and objectives. For the purpose of this assessment, we asked respondents to score four key requirements related to contamination, micro-organisms and parasites, deterioration and pollution, and remedial action. These four requirements have been assessed and scored in terms of their coherence with key requirements of the WFD, GWD, ND and PD.

Table 3.3 Four key requirements of the DWD

Label DWD Article
Contamination To protect human health from the adverse effects of any contamination of water intended for human consumption by ensuring that it is wholesome and clean (DWD, art. 1).
Micro-organisms and parasites To ensure that water used for human consumption should be free from any micro-organisms and parasites and from any substances which, in numbers or concentrations, constitute a potential danger to human health (DWD, art. 2, annex 1)
Deterioration and pollution To ensure that measures taken do not cause any deterioration or increasing pollution of waters used for drinking water (DWD, art. 4).
Remedial action If, despite the measures taken, water does not comply with the standards, and is used in public premises and establishments, further remedial action should be taken to restore its quality as soon as possible (or in accordance with the extent to which the relevant parametric value has been exceeded) (DWD, art. 8).

Contamination

Art. 1 of the DWD requires member states to protect human health from the adverse effects of any contamination of water intended for human consumption by ensuring that it is wholesome and clean. It has been assessed to what extent the requirements of the WFD, GWD, PD and ND are coherent with this, and whether there are any requirements that impede the attainment of the requirement related to contamination.

Overall, the scores assigned suggest that the directives positively influence the requirement related to protecting human health from contaminants (M = 1,8). On average, both the WFD and the GWD are considered to reinforce (+2) the requirement of the DWD. Scoring suggests that the contributor believes that the most positive interaction is from two requirements. The first is the requirement to prevent and control groundwater pollution by forming criteria for (1) assessment of good groundwater chemical status and for (2) identification and reversal of significant and sustained upward trends and for the definition of starting points for trend reversals (GWD, art. 1), which has been scored as indivisible (+3). The second is the duty to prohibit aerial spraying, except under strict regulations (PD, art. 9) is scored as indivisible (+3).

In the context of contamination, one negative interaction was identified. The contributors suggested that the requirement to establish a framework to achieve a sustainable use of pesticides by reducing the risks and impacts of pesticides and promoting the use of integrated pest management and of alternative approaches or techniques (PD, art. 1) constrains (-1) the objective 77 of the DWD. Respondents suggested that the integrated pest management approach may result in increased s use of a lesser variety of active ingredients, and that those ingredients may as a consequence of greater use be at risk of exceeding the 0.1μg/l, which is the threshold level set for pesticides pursuant to GWD, Annex II. This critique reflects the subjective views of the project contributors.

A further observation that was made by respondents was that the definition of a Groundwater Body in WFD may result in a single body being large and heterogenous. The quality of drinking water resource from that groundwater body may vary spatially and temporally. It might help to investigate if more emphasis should be placed on those parts used for drinking water.

Respondents further suggested that national action plans may be ineffective as these are often not targeted at a specific source, but a whole aquifer. Thus, it may be necessary to introduce stricter measures in targeted areas. These comments are consistent with those made by project contributors outlined in the above section about the GWD; requirements related to institutional processes are viewed less favourably than requirements related to protecting natural resources and preventing pollution.

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Figure 3.9

Micro-organisms and parasites

Art. 2 DWD (and Annex 1) require member states to ensure that water used for human consumption should be free from any micro-organisms and parasites and from any substances which, in numbers or concentrations, constitute a potential danger to human health (DWD, art. 2, annex 1). It has been assessed to what extent the requirements of the WFD, GWD, PD and ND are coherent with this, and whether there are any requirements that impede the attainment of the requirement.

Overall, the scores allocated by the project partner suggests that the interaction between the directives and the DWD requirement is perceived to be neutral (M = 0.2). However, there is variability between scores for individual directives. Specifically, the ND is considered to be generally enabling (+1) the attainment of the requirement. In contrast, respondents however identified a number of negative interactions between the requirements of the WFD and the DWD. Requirements related to the protection and prevention of deterioration (WFD, Art.1), establishing a framework (Art. 1 WFD), and to identify river basins, produce plans and establish programmes of measures (Art. 3.1, 7, 13.1, 11.1 WFD) were all scored negatively, indicating that those requirements may be constraining (-1). Respondents commented that there may be a mismatch between actual protection and reported protection. For example, they suggested that ambiguity around how the use of groundwater bodies is reported may result in inaccurate reports about usage. They rationalize that the number of groundwater bodies used for drinking water purposes is often reported, without taking into account the size or volume of these bodies. Thus, a member state might be using a very small groundwater body with ‘good status’, and a very large groundwater body with ‘poor status’. If reporting only captures the number of bodies in use, a member state could achieve a 50% compliance rate. However, in this scenario, the actual quality status of total water volume may be considerably less than 50%.

Respondents were uncertain about the interactions between the requirements of the GWD in relation to micro-organisms and parasites and left these interactions unscored. However, they did suggest that there could be potentially negative impacts associated with better environmental conditions, such as an increase in microorganisms from an increase in wild fowl. However, these suggestions are highly subjective. Further investigation into the biophysical implications of wildlife on water quality are required to determine whether it is likely that the requirements of the GWD may interact negatively with the DWD requirement about micro-organisms.

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Figure 3.10

Deterioration

Art. 4 of the DWD requires member states to ensure that measures taken do not cause any deterioration or increasing pollution of waters used for drinking water. It has been assessed to what extent the requirements of the WFD, GWD, PD and ND are coherent with this, and whether there are any requirements that impede the attainment of the requirement to avoid deterioration.

Overall, the scores allocated suggest that the directives are perceived to contribute highly positively to the aim to avoid deterioration (M = 2,3). The average score of all requirements for each directive was either enabling (+2) or indivisible (+3). Specifically, some requirements of the WFD and the PD have been scored as indivisible (+3). Among others, these include requirements related to protection (Art.1 WFD), prevention of pollution (Art. 4.1(a)(iv)), establishing frameworks (Art. 1 WFD), integrated pest management (Art. 1 PD), and national action plans (Art. 4.1 PD).

For the aim of preventing deterioration, no negative interactions have been identified between the DWD and the requirements and objectives of WFD, GWD, PD, and ND. This is consistent with scores reported above related to the GWD; respondents perceive a strong positive relationship between other directives and requirements about protecting natural resources and preventing pollution.

Respondents emphasized the difficulty of ensuring the non-deterioration of large groundwater bodies with variations in quality. Comments also suggested that respondents believe there may be disconnect between the large time scales between impacts and effects on groundwater quality, and the timescales over which measures are taken to assess groundwater quality. Thus, in practice it may be difficult to prevent deterioration if measures do not reflect ongoing causes and rates of deterioration. These concerns warrant further investigation into the effectiveness of institutional requirements of environmental directives, such as requirements to establish frameworks (Art. 1 WFD) and national action plans (Art. 4.1 PD)

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Figure 3.11

Remedial action

If, despite the measures taken, water does not comply with the standards, and is used in public premises and establishments, further remedial action should be taken to restore its quality as soon as possible (or in accordance with the extent to which the relevant parametric value has been exceeded) (DWD, art. 8). It has been assessed to what extent the requirements of the WFD, GWD, PD and ND are coherent with this, and whether there are any requirements that impede the attainment of the requirement to take remedial action.

The average score given to the contribution of directives to the requirement to take remedial action suggests that the respndent perceives that the directives contribute positively to the requirement (M = 1.3). However, there is large variability between scores given to individual directives. While the average score given to requirements of the ND suggests that the project partner views the interactions as neutral (0), the average score given to requirements of the WFD suggests the partner perceives these interactions as having a strong enabling or indivisible effect (2.5).

The requirements that have been identified as indivisible (+3) are those related to protection (Art.1 WFD), preventing deterioration (art. 4.1(a)(i) and 4.1(a)(ii)) WFD), and establishing frameworks (Art. 1 WFD). Also, the requirement to establish stricter threshold values, where threshold values from Annex II (50 mg/L for nitrates and 0,1 µg/L for pesticides) are not sufficient to prevent damage to environment or safety of humans, of the GWD (Annex I), is scored as indivisible (+3).

For the purpose of remedial action, no negative interactions have been identified between the DWD and the requirements and objectives of WFD, GWD, PD, and ND. This is consistent with scoring of interactions between other requirements of the DWD and GWD related to taking action to protect condition and prevent pollution.

Despite the absence of any negative interactions, respondents highlighted that timescales are highly important in the context of taking remedial action. Changes in groundwater condition can occur very slowly, and time lags are common. Respondents suggest that drinking water companies may need to begin remedial action before a threshold for groundwater contamination is reached because changes in groundwater condition occur very slowly, and time lags are common. They further commented that how deterioration is defined, and thus how the quality of groundwater is assessed and reported, depends on the measures included in monitoring, and how well those measures allow trends in quality change to be identified. Further, some contaminants result from single ‘events’ rather than ongoing causes, and therefore are difficult to identify through regular scheduled monitoring. Thus, while water companies may use risk assessments, these assessments may not be sufficient to identify contaminants in groundwater bodies related to Source Protection Zones.

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Figure 3.12

Conclusion

Overall, the requirements and objectives of the WFD, GWD, ND and PD are considered to be coherent with the DWD. However, some negative interactions have been identified that reinforce the importance of having strong institutional processes for achieving the objectives of directives to protect natural resources, prevent pollution, and improve degraded condition. For example, respondents suggested that the requirements of the PD to establish national action plans could be ineffective as these are often not targeted at a specific source, but a whole aquifer. Measures could also be stricter in targeted areas to facilitate attainment of the DWD objectives. Furthermore, respondents highlighted a possible gap between the WFD and the DWD. More specifically, they argue that, in the context of the WFD, the number of groundwater bodies used for drinking water purposes is decisive, without taking into account the water volume size of these bodies. Thus, a member state could use a very small groundwater body with ‘good status’, and a very large groundwater body with ‘poor status’. By a mere focus on number, this would equal to 50% compliance while the actual quality status of all sources would be poorer.

Two reoccurring themes emerged from the analysis of respondent scores and comments for the DWD. Firstly, as mentioned earlier, respondents emphasized disconnect between requirements to protect condition and prevent pollution, and requirements related to institutional processes. This is consistent with themes emerging from the analysis of other directives. Secondly, respondents highlight the potential problems associated with time lags between groundwater contamination and taking measures of groundwater condition. These observations suggest avenues for further investigation.

 


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