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

Template for the collection of case studies on WFD Art. 4(7)

IntroductionIn the framework of the Common Implementation Strategy (CIS) for the Water Framework Directive,the Guidance Document nr.20 on Environmental Objectives and Exemptions1, adopted in 2008, dealswith the exemptions under Article 4 of the WFD. This guidance has been a tool for the application ofexemptions under the WFD. Since this guidance was adopted, Member States have gained valuablepractical 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 lackor inadequate justification, are outlined in the 4th WFD Implementation Report2 and have beenidentified 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 detailedguidance on the application of Article 4(7) for new modifications and for new sustainable humandevelopment activities. In the context of this template, new modifications are understood as bothmodifications to the physical characteristics of surface water bodies or alterations to the level ofgroundwater bodies. A specific Ad-hoc Task Group (ATG) has been established in the frame of the CISfor 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 13-14 December 2016 (Brussels). In preparation for this workshop, case studies will be collected fromMember States and stakeholders, including representatives of relevant sectors, to gain a betterunderstanding 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 atthe workshop and serve as a basis for drafting a practical guidance document on the application ofArt.4(7) in 2017. 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 wellas links with other Directives.

You are kindly encouraged to contribute relevant case studies, so that sufficient material isavailable to enable practical oriented discussions at the upcoming workshop in December.Your input will be crucial to make the discussions useful.

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 guidancedocuments or approaches which were elaborated for the application of Art. 4(7). We are looking forpractical 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 ofArt. 4(7), practical solutions or both. The case studies are planned to be referenced in relevantsections of the Key Issues Paper for the workshop and will be made publicly available on CIRCA.

1See: http://ec.europa.eu/environment/water/water-framework/objectives/pdf/Guidance_document_20.pdf

2 See: http://ec.europa.eu/environment/water/water-framework/pdf/4th_report/COM_2015_120_en.pdf 1

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@fresh-thoughts.eu.

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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

Spain

1b. Title of case study

Biscarrués Dam

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):

☐River

☐Lake

☐ Transitional

☐ Coastal

☐ Artificial

☐ Heavily modified

☐ Groundwater body

Type of activity/modification addressed in the case study (multiple ticks possible):

☐Flood protection

☐Hydropower

☐Navigation

☐Mining

☐Land drainage (for agriculture or other purpose)

☐Irrigation dam

☐Drinking water dam

☐Coastal Defence

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☐ Other

Status of the new modification or human development activity / case study:

☐Completed

☐Ongoing

☐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) Possible issues to address in case study (open list)

☐ Estimating the impacts of a modification on water status/potential

- 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 estimatingimpacts (how assessment was done, at what phase of the project cycle, results, dealing withuncertainties)

☐ Practicable steps to mitigate adverse impacts (Art 4.7a)

- What mitigation steps were taken and how have they been selected?

- How is “practicability” of measures interpreted?

☐ Assessing overriding public interest (Art 4.7c)

- 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?

☐ Weighing benefits of the modification versus foregone benefits as a result of deterioration (Art 4.7c)

- What benefits of the project outweighed the benefits of achieving the WFD environmental 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?

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☐ Assessing significantly better environmental options (Art. 4.7d)

- Which better environmental options were takeninto 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?

☐ Relationship to the River Basin Management Plan (Art. 4.7b)

- How and at which stage of the project cycle has application of Art. 4(7) been reported in theRBMPs?

- 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 and synergies with other Directives

- 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

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2 Description of case study (main case study text)

2a. General information on the case study

Location: River Basin District: ES091 EbroSub-basin: Gállego RiverPronvinces: Huesca and Zaragoza (Spain)Size of project: Maximun volume: 35 430 000 m3

Maximun height from the river-bed: 45,5 mMaximun length of de river occupied: 14 kmBudbet Project: 123 510 748 €Water bodies affected:955Gállego river from the Presa de La Peña to the town of Riglos332Gállego river from the town of Riglos to the gully of San Julián (includes the gully of Artaso)116Gully of San Julián from its beginning to its rivermouth at the Gállego river425Gállego river from San Julián gully to the tail of Ardisa reservoir055Ardisa reservoir962Gállego river from the weir, hydropower plant of Ardisa and derivations ponts for the Gállego and Marracos channels to the hydropower plant of Marracos817Gállego river from hydropower plant of Marracos to Sotón river426Gállego river from Sotón river to its rivermouth in the Ebro riverNew modifications:Reservoir construction and operation.Timeframe:22/May./1992: Declared of national general interest (no equivalent to overriding public interest)https://www.boe.es/boe/dias/1992/05/27/pdfs/A18011-18012.pdf27/Nov./2007: Start to administrative processing07/May./2008: Scooping19/May./2009: Public consultationhttp://www.boe.es/boe/dias/2009/05/25/pdfs/BOE-B-2009-17409.pdf03/Ago./2011: Environmental Impact Statementhttps://www.boe.es/boe/dias/2011/08/03/pdfs/BOE-A-2011-13381.pdf03/Nov./2011: Feasibility Reporthttp://www.magrama.gob.es/es/agua/planes-y-estrategias/informes-de-viabilidad-de-obras-hidraulicas/1015_che_embalse_biscarrues_tcm7-183198.pdf14/Feb./2012: Project authorisationhttp://www.boe.es/boe/dias/2012/03/31/pdfs/BOE-B-2012-10876.pdf28/Feb./2014: River Basin Management Plan of Ebro (2014-2015)https://www.boe.es/boe/dias/2014/03/01/pdfs/BOE-A-2014-2223.pdfhttp://www.chebro.es/contenido.visualizar.do?idContenido=14093&idMenu=3048Level of water deterioration and quality element affected:The effects of the break in the river continuity and the conversion of the river into a reservoir 14 km long cause at least the following effects:955 (Dam La Peña – Riglos) from natural to heavily modified water body332 (Riglos – gully of San Julián) from natural to heavily modified water body116 (gully of San Julián) deterioriation in its last stretch425 (gully of San Julián - Ardisa) from natural to heavily modified water body055 (Ardisa reservoir) heavily modified water body expanded upstream962(Ardisa - Marracos) do not allow the achievement of the environmental objectives817 (Marracos - Sotón) there is no previous assessment of the ecological state

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426 (Sotón - rivermouth) channel effect in the riparian vegetation

Map:

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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 backto 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.

Estimating the impacts of a modification on water status/potentialThe lack of a proper assessent about the significant adverse effects of the reservoir on the quality idicators established by the WFD does not allow an objective estimation of the impacts that will be caused by the construction and functioning of the projected actions.

Practicable steps to mitigate adverse impacts (Art 4.7a)Such lack of a proper assessent about the adverse effects of the reservoir on the quality indicators established by the WFD does not allow an adequate valuation of the effectiveness of the measures to mitigate the expected impacts

Assessing overriding public interest (Art 4.7c)Despite the claim of the public promoter, the declaration of the project as general interest according to the Spanish law has been carried out without previously taking into account the economic, social and environmental studies required to equate it with a declaration of overriding public interest, according tothe Environmental law of the European Union.

Weighing benefits of the modification versus foregone benefits as a result of deterioration (Art 4.7c)The lack of a previous cost-effectiveness analysis to know the benefits that would be generated and the costs, including environmental costs, that would be caused by the project, make it impossible to consider that the condition imposed by the European Union law has been fulfilled. La inexistencia de una evaluación previa de coste y eficacia de la medida que permita conocer los beneficios que se obtendrían y los costes incluidos los ambientales que se producirían con la actuación hacen imposible considerar cumplida la condición impuesta por el Derecho de la Unión Europea. Only the possible benefits has been vaguely sketched, in order to justify the project.

Assessing significantly better environmental options (Art. 4.7d):The public decision about the building up of the reservoir to fit a water resources demand, was an ideaalready anticipated and planned much earlier. This influenced decisively on the study of alternatives, so it became a mere justification of the preconceived decision. Since the administrative body deciding about the buildig up of the reservoir is the same administrative body assessing its environmental impacts, the required autonomy for an effective control of the environmental effects is completely lacking.

Relationship to the River Basin Management Plan (Art. 4.7b)The required explanation and justification was lacking in the River Basin Management Plan of the Spanish part of the Ebro basin, passed on 28 February 2014 (Real Decreto 129/2014) instead of 22 December 2009 has required by the European Union law. In the RBMP corresponding to the second water planning cycle (Real Decreto 1/2016), there is only a mere formal justification referring to article 4.7 of the WFD, but its content is still very insufficient for an adequate fullfillment with the requirementsof such exemption. Moreover, there is also non-compliance regarding deadlines, since the exemption should have been justified in the 2014 RBMP, according to the date of approval of the project.

Links and synergies with other Directives

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The project causes significant effects on habitats and species of community interest, protected by the Birds Directive (Directive 2009/147/CE) and the Habitats Directive (Directive 92/43/CE). In particular, the project affects to the LIC ES24300077 Bajo Gállego and to nesting areas of the red kite (Milvus milvus). These effects have not been subject to an adequate assessent and, as a consequence, the negative impacts of the project have been undervalued in a non-justified way.

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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.

There is a conflict of interests in the application of an exemption under article 4.7 of the WFD. The Authority responsible for approving the water work usually shares with the promoter the interest for carrying out the project. In this case, the conflict of interests is even worse, since the same Authority (Secretary for the Environment) is the one deciding about the promotion of the water work, about the environmental impact assessment of the project and about the final approval of the water work. This conflict of interests does not allow an objective consideration of the environmental protection.

The analysis of alternatives is usually the Achilles heel or weak point in the application of Article 4.7 of the WFD, particularly in the case of strategic alternatives. Frequently, it is used to justify a pre-conceived solution, without seriously analysing viable alternatives, apart from minor variations in the infrastructure. In fact, these variations, already discarded or presenting higher impacts, are included inthe analysis of alternatives to simply better justify the adopted solution.

The lack of objectivity and rigor in the justifications ellaborated by the public promoter, protected by thealsumption of legality of its acts, it is one of the major obstacles for an effective control and public revision of the decisions.

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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 13-14 December 2016, Brussels.

See section 3

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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

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6 Case study contact information

For potential clarifying questions, please provide information on the contact person(s) for the case study, including name, organisation, email and telephone number.

Julia MartínezFundación Nuev Cultura del Aguajulia@fnca.euPhone: +34 660 425 278

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