The progression towards ecological quality standards

Journal of Environmental Law

Volumn 18, Issue 1, 2006, Pages 3-35

  Howarth, William ^a  

^a UNIVERSITY OF KENT   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ENVIRONMENTAL LEGISLATION; POLLUTION CONTROL; POLLUTION POLICY; WATER POLLUTION;

EURASIA; EUROPE; UNITED KINGDOM; WESTERN EUROPE;

EID: 33645009695     PISSN: 09528873     EISSN: 1464374X     Source Type: Journal    
DOI: 10.1093/jel/eqi049     Document Type: Review

References (180)

1. Similarly, see section 1(2) Environmental Protection Act 1990.
2. For a discussion of the contrasting meanings of 'contamination' and 'pollution', see W. Howarth and D. McGillivray, Water Pollution and Water Quality Law (2001) section 1.3.
3. See Section 5.3 below ('Human Beings and Ecosystems') on the role of humans in ecosystems.
4. See D. Freestone, 'European Community Environmental Policy and Law' in R. Churchill, L. Warren and J. Gibson (eds), Law, Policy and the Environment (1991) at 143 (quoting S.P. Johnson and G. Corcelle, The Environmental Policy of the European Communities (1989)
5. at 25) and G. McLeod, 'Approaches to Setting of Priorities and Policies Amongst Water Quality Protection and Enhancement Alternatives: The European Community' in P. Thomas (ed.), Water Pollution: Law and Liability (1993) at 8.
6. 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. For initial national transposition, see Water Environment (Water Framework Directive) (England and Wales) Regulations 2003, SI 2003 No. 3242.
7. For an interesting recent discussion of the traditional instrumental focus of thinking about the environment and its philosophical roots, see S. Coyle and K. Morrow, The Philosophical Foundations of Environmental Law: Properly, Right and Nature (2004).
8. See D. Hughes et al, Environmental Law (4th edn, 2002) Chapter 1
9. and S. Bell and D. McGillivray, Environmental Law (6th edn, 2005) Chapter 2, for introductions to the historical development of environmental law in the UK,
10. and see A. Markham, A Brief History of Pollution (1994) for a historical discussion of the problems being confronted.
11. See Royal Commission on Environmental Pollution, Twenty-first Report, Setting Environmental Standards (1998) Cm 4053 para 1.32 to 1.33 on the implications of increasing environmental awareness.
12. Similarly, on the lack of focus upon environmental goals in the United States, see W.F. Pedersen, '"Protecting the Environment" - What Does that Mean?', 27 Loyola of Los Angeles Law Review (1994) 969.
13. 'Standard' is here being used in a narrow sense of a statement of precise chemical and physical parameters that determine the acceptability of a part of an environmental medium for a particular purpose. Hence, a contrast is to be drawn with an environmental quality objective, which states the general purposes for which an environmental medium is to be used, whereas an environmental quality standard defines, in precisely stated parameters, what quality is needed for that purpose to be realised. Generally see W. Howarth and D. McGillivray, Water Pollution and Water Quality Law (2001) sections 1.4.3 to 5 on the contrast between water quality objectives and water quality standards.
14. See also, Royal Commission on Environmental Pollution, Twenty-first Report, Setting Environmental Standards (1998) Cm 4053, at 4 and Annex C, setting out a range of different senses in which the term 'standard' is used in environmental quality management contexts.
15. Generally see G. Richardson, A. Ogus and P. Burrows, Policing Pollution (1982) 62-64
16. and D. Vogel, National Styles of Regulation: Environmental Policy in Great Britain and the United States (1986) 87-90.
17. See Royal Commission on Environmental Pollution, Twenty-first Report, Setting Environmental Standards (1998) Cm 4053, Annex C, listing a range of European Community directives establishing environmental quality standards applicable to different environmental media.
18. Directive 82/176/EEC. Another example is to be seen in the interpretation of the Directives concerned with waters for freshwater fish (78/659/EEC) and shellfish waters (79/923/EEC). Both Directives have as their purpose the protection and improvement of respective waters for ecological and economic reasons. A key contrast between the two is that the preamble to the Shellfish Waters Directive explicitly refers to the need for protection of shellfish consumers, thereby recognising its human health basis, whereas the Freshwater Fish Waters Directive makes no corresponding provision, suggesting that it is directed primarily towards ecological objectives. Despite the differences in wording of the Directives, the European Court of Justice has interpreted the Freshwater Fish Waters Directive as having a human health purpose simply because the salmonid and cyprinid species covered by the Directive may be consumed. Again, it transpires that a directive appearing to have a primarily ecological objective is actually intended to secure human-centred purposes that are not apparent from its wording.
19. See Case C-298/95 Commission v Germany [1996] ECR 1-6747
20. and discussion of this case in W. Howarth and D. McGillivray, Water Pollution and Water Quality Law (2001) at section 15.3.3.
21. Royal Commission on Environmental Pollution, Setting Environmental Standards, Twenty-first Report (1998) Cm 4053 Annex C para 26.
22. See the discussion of the 'comfortable assumption' that standards devised for human protection are necessarily sufficient to protect species and ecosystems, at Section 3.4 below.
23. On the utilitarian justification for protection of environmental quality generally, see J. Passmore, Man's Responsibility for Nature: Ecological Problems and Western Traditions (1974)
24. J.R Des Jardins, Environmental Ethics: An Introduction to Environmental Philosophy (4th edn, 2005) particularly Chapters 2 and 4
25. and I.M. Carr, 'Saving the Environment- does utilitarianism provide a justification?' Legal Studies (1992) 92.
26. It might be argued that this standard was envisaged by the Drinking Water Quality Directive (80/778/EEC as amended by 98/83/EC) in setting a limit of 0.1 parts per billion for any pesticide in drinking water. This low limit was seen as a surrogate zero because it was set beyond the limits of measurability at the time of its adoption. See Evidence Submitted by Water UK (Z34) at 162 of Evidence to House of Commons, Environment, Food and Rural Affairs Committee, Progress on the Use of Pesticides: The Voluntary Initiative (Eighth Report of Session 2004-05, HC 258, 2005).
27. Also see S. Tromans, 'High Principles and Low Cunning: Putting Environmental Principles Into Legal Practice' Journal of Planning and Environment Law 779 (1995) at 783, stressing the 'precautionary' character of the pesticide parameter.
28. 32 ILM 1069 (1993) and see OSPAR website, http://www.ospar.org.
29. See and OSPAR Hazardous Substances Strategy (1998, and reaffirmed 2003, Reference number: 2003-21) available at OSPAR website, http://www.ospar.org.
30. Also see the discussion of the European Community Water Framework Directive 2000/60/EC at Section 4 below.
31. United Nations Convention on Biological Diversity 31 ILM 818 (1992) and http://www.biodiv.org.
32. For general commentary, see L. Glowka et al, A Guide to the Convention on Biological Diversity (1994)
33. and Secretariat of the Convention on Biological Diversity, Handbook on the Convention on Biological Diversity (2001) Earthscan.
34. Art. 2 Convention on Biological Diversity, defining 'biodiversity'.
35. For useful starting points on these debates see D. Pepper, Modern Environmentalism: An Introduction (1996) particularly Chapter 2
36. A. Light and H. Rolston III (eds), Environmental Ethics: An Anthology (2005) Part III;
37. R. Eliot (ed.), Environmental Ethics (1995)
38. J.R. Des Jardins, Environmental Ethics: An Introduction to Environmental Philosophy (4th edn, 2005)
39. and D. Wilkinson, 'Using Environmental Ethics to Create Ecological Law' in J. Holder and D. McGillivray (eds), Locality and Identity: Environmental Issues in Law and Society (1999) at 17, for a discussion of some of the legal implications of ecocentric valuation.
40. Nationally, see Part I Wildlife and Countryside Act 1981 (extensively amended by the Countryside and Rights of Way Act 2000) concerned with the protection of birds, other animals and plants (in part, consolidating earlier bird protection legislation) and Part II concerned with protection of Sites of Special Scientific Interest and other areas of conservation importance. At European Community level, see the Wild Birds Directive (79/409/EEC) and the Habitats Directive (92/43/EEC), again largely concerned with the prohibition of various kinds of destructive activity.
41. Art.2 Convention on Biological Diversity, emphasis added. Similarly all-encompassing definitions are adopted in environmental science. See R. O. Brooks, R. Jones and R.A. Virginia, Law and Ecology: The Rise of the Ecosystem Regime (2002) at 7: 'Ecology is the study of the relationship of organisms and their environment. The environment includes other individuals in its population, other populations of plants and animals with which an organism and its population interacts, and the physical and chemical factors that influence life (i.e. the abiotic environment)'.
42. Report of the Study Croup on Ecosystem Assessment and Monitoring Marine Habitat Committee, International Council for the Exploration of the Sea, ICES CM 2000/E:09 Ref.: ACME, 8-12 May 2000, para 5.1 (1) available at the ICES website, http://www.ices.dk.
43. Ibid, para 5.1(2).
44. See ICES, Report of the ICES Advisory Committee on Fishery Management and Advisory Committee on Ecosystems, 2004 (2004) para 2.1.7.1 available on ICES website, http://www.ices.dk. It must be stressed, however, that the points were made in the context of establishing ecological quality objectives rather than ecological quality standards (see n 10 above on this contrast). In the terminology used by ICES, an 'ecological quality objective' is a statement of the desired level of ecological quality relevant to a reference level. 'Ecological quality' refers to the structure and function of the marine ecosystem, taking account of the biological community and natural physiographic and climatic factors as well as the physical and chemical conditions including those resulting from human activities (see ibid).
45. Similarly, see also the ten ecological quality objectives, with the 21 associated ecological quality elements, agreed by the Fifth North Sea Conference, as the basis for a pilot project for the North Sea (Bergen Declaration 2002, Annex 3 available at odin.dep.no/md/nsc/). These ecological quality objectives are seen by OSPAR as describing a desired level of ecological quality against which the effects of human activities can be judged, and against which the effectiveness of measures to achieve a healthy marine environment can be assessed. Again, the provisional and aspirational nature of the exercise characterising a 'desired' state of the marine environment, in terms of 'ecological quality objectives' of this kind, contrasts with the quantified and mandatory form of ecological quality standards as indicated above. Hence, whilst recognition of the concept of ecological quality objectives has been identified as a strong point of the OSPAR approach towards eutrophication, its weaknesses are that no quantitative criteria have been agreed, and there is no certainty that the process will result in such criteria [European Commission, DG Environment, Criteria Used for the Definition of Eutrophication in Marine and Coastal Waters (2001) (a report prepared by Environmental Resources Management, authors M.M. Gavin, S Borgvang and C. de Meeus) 71-72].
46. See Section 4 below on Annex V to the Water Framework Directive (2000/60/ EC) which requires assessment of the composition and abundance of phytoplankton, aquatic flora, benthic invertebrate fauna and fish in relation to the assessment of ecological good status for surface water but avoids the specification of ecological quality standards at the level of individual species within these categories.
47. Department for Environment, Food and Rural Affairs, Working with the Grain of Nature: A biodiversity Strategy for England (2002), available at DEFRA website, http://www.defra.gov.uk.
48. Department for Environment, Food and Rural Affairs, A Biodiversity Strategy for England - Measuring Progress: Baseline assessment (2003), available at DEFRA website, http://www.defra.gov.uk.
49. On the use of biological indicators to assess progress towards sustainable development, see Department for Environment, Transport and the Regions, Quality of Life Counts: Indicators for a Strategy for the sustainable-development for the United Kingdom: A Baseline Assessment (1999), available at http://www.sustainable-development.gov.uk.
50. See European Environment Agency website on use of indicators, and particular the indicator 'Cumulated area of nationally [nature protection] designated areas over time in (Pan) Europe', available at http://www.eea.eu.int.
51. European Commission, A Sustainable Europe for a Better World: A European Union Strategy for Sustainable Development, COM(2001) 264 final, available at europa.eu.int.
52. See also the recent consultation on a new strategy, commenced in July 2004, which has prompted the criticism that the existing strategy is 'too vague and lacks a real definition and specific objectives, targets and deadlines' (EurActive, 'Stakeholders to revive EU's sustainable development strategy', News Release 14 April 2005, at http://www.euractive.com).
53. Art.2(2) of the Habitats Directive (92/43/EC) requires measures taken pursuant to the Directive to be designed to maintain or restore, at a favourable conservation status, natural habitats and species of wild fauna and flora of Community interest. Art. 1 (a, e and i) of the Directive provides the following definitions. The expression 'conservation status' means the sum of the influences on a natural habitat and its typical species that may affect its long-term natural distribution, structure and function as well as the long-term survival of its typical species within the European territory of the Member States. The conservation status of a habitat will be 'favourable' where its natural range, and areas within that range, are stable or increasing; the specific structure and functions which are necessary for its long-term maintenance exist and are likely to continue to exist for the foreseeable future; and the conservation status of its typical species is 'favourable'. Similarly, the conservation status of a species will be 'favourable' when population dynamics data on the species indicated that it is maintaining itself on a long-term basis as a viable component of its natural habitats; the natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future; and there is, and will probably continue to be, a sufficiently large habitat to maintain its population on a long-term basis.
54. See the discussion at Section 5.1 below on the dubious status of ecological 'stability'.
55. With the possible exception of the Water Framework Directive (2000/60/ EC), discussed at Section 5 below.
56. See, for an example from an environmental context, Case C-72/95 Aannemerbedrifj P. K. Kraaijeveld BV and Others v Gedeputeerde Staten Van Zuid-Holland [1997] Env LR 265 at para 28, emphasising the need for purposive interpretation where there is a disparity between national language versions of a Directive.
57. Directive 96/62/EC on ambient air quality assessment and management provides another pertinent example of 'obscure' ecological standards in a non-aquatic context. The Directive seeks to establish a common framework for setting objectives for ambient air quality in the Community to avoid, prevent or reduce harmful effects on human health and the environment as a whole. Environmental impacts, other than human health, are relevant to limit values, represented in a level of air quality, set to avoid, prevent or reduce harmful effects on humans and/ or the environment. Hence, when setting limit values, account must be taken of various criteria including the sensitivity of flora and fauna and their habitats (Annex II). However, the mechanisms by which account is to be taken of ecological impacts under secondary directives concerning particular contaminants are unclear. See, for example, Directive 1999/30/EC relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air. This Directive notes that ecosystems should be protected against the adverse effects of sulphur dioxide and that vegetation should be protected against the adverse effects of oxides of nitrogen, but there is no indication that other pollutants covered by the Directive have any harmful ecological impacts. By way of background to the Directive, the European Commission scientific working groups Position Paper of Sulphur Dioxide (1997) (at europa.eu.int) also notes the adverse effects of the contaminant on plants, though it is far from clear how the recognised adverse impacts upon plants are reflected in the numerical threshold value for sulphur dioxide that is proposed or adopted in the Sulphur Dioxide Directive. As with the Agricultural Nitrates Directive, the inference that is indicated is that the ambient air quality legislation is heavily orientated towards human health impacts and covers ecological impacts in only a cursory and imprecise manner.
58. Directive 91/67/EEC and generally see, European Commission, The Implementation of Council Directive 91/676/EEC Concerning the Protection of Waters Against Pollution Caused by Nitrates from Agricultural Sources, COM(2002)407, available at europa.eu.int.
59. Art.1 Agricultural Nitrates Directive.
60. Recital 6 Agricultural Nitrates Directive.
61. Drinking Water Quality Directive (80/778/EEC, subsequently amended by 98/ 83/EC) Annex 1 parameter n.20. 'Raw water' abstracted for supply purposes, after treatment, is subject to the Drinking Water Abstraction Directive (75/440/EEC, as amended by 79/869/EEC) which imposes the same parameter for nitrate in respect of water which is subject to normal physical treatment, chemical treatment and disinfection before supply (Annex I parameter n.7).
62. Concerns about methaemoglobaemia or 'blue baby syndrome' and gastric cancer were identified by the World Health Organisation [World Health Organisation, European Standards for Drinking Water (1970) and (1971)]. Although reservations were expressed as to whether the parameters established by the Drinking Water Directive were genuinely needed to safeguard health by the Royal Commission on Environmental Pollution, Sixteenth Report, Freshwater Quality (1992) para 7.127.
63. Generally see S. Elworthy, Farming for Drinking Water (1994).
64. Directive 75/440/EEC.
65. Art.3 (1) and Annex IA Agricultural Nitrates Directive.
66. Case C-69/99, Commission v United Kingdom [2000] ECR I-10979.
67. Art.2(1) Agricultural Nitrates Directive.
68. See also the OSPAR, Strategy on Eutrophication (1998 revised and reaffirmed 2003, Reference number: 2003-21) which defines 'eutrophication' as 'the enrichment of water by nutrients causing an accelerated growth of algae and higher forms of plant life to produce an undesirable disturbance to the balance of organisms present in the water and to the quality of the water concerned, and therefore refers to the undesirable effects resulting from anthropogenic enrichment by nutrients as described in the Common Procedure' to assess and classify eutrophication status on a common basis. The overall objective of the Strategy is 'to combat eutrophication in the OSPAR maritime area, in order to achieve and maintain a healthy marine environment where eutrophication does not occur', with this being achieved by 2010. On progress towards this objective, see OSPAR Integrated Report 2003 on the Eutrophication Status of the OSPAR Maritime Area Based Upon the First Application of the Comprehensive Procedure (2003)
69. Ecological Quality Objectives for the Greater North Sea with Regard to Nutrients and Eutrophication Effects (2005)
70. and Common Procedure for the Identification of the Eutrophication Status of the OSPAR Maritime Area (Reference number: 2005-3). See OSPAR website http://www.ospar.org.
71. See Royal Commission on Environmental Pollution, Twelfth Report, Managing Waste: The Duty of Care (1985) Cmnd 9675 para 7.49, but contrast Royal Commission on Environmental Pollution Sixteenth Report, Freshwater Quality (1992) Cm 1966 paras 3.8 and 2.18. Similarly, it has been noted that, 'at a theoretical level, it is possible that species diversity may not respond consistently to eutrophication - eutrophication in an oligotrophic system might conceivably result in an increase in species diversity, while eutrophication at higher ambient nutrient concentrations may reduce it. Changes in species diversity are the sum of many effects, and eutrophication can rarely be assumed to occur in isolation from other anthropogenic factors' (European Commission, DG Environment, Criteria Used for the Definition of Eutrophication in Marine and Coastal Waters (2001) at x).
72. See National Rivers Authority, Toxic Blue-Green Algae (1990)
73. and B. Moss, J. Madgwick and G. Phillips, A Guide to the Restoration of Nutrient-Enriched Shallow Lakes (1996).
74. See European Commission, DG Environment, Criteria Used for the Definition of Eutrophication in Marine and Coastal Waters (2001). This report provides a review of the different existing criteria used by European Community Member States to define 'eutrophication' and provides suggestions for the common criteria and indicators that should be used. The report emphasises important distinctions (and potential confusions) between the process of 'eutrophication', and its causative factors and symptoms and consequences.
75. Government Response to Consultation on Criteria and Procedures for Identifying Sensitive Areas and Less Sensitive Areas (Urban Waste Water Treatment Directive) and "Polluted Waters" (Nitrates Directive in England and Wales (incorporated in DoE, MAFF and WO, Methodology for Identifying Sensitive Areas (Urban Waste Water Treatment Directive) and Methodology for Designating Vulnerable Zones (Nitrates Directive) in England and Wales (1993) Annex B para 9. Similarly, it has been observed that 'the most important implication [for criteria for 'eutrophication'] is that it is impossible to regard formulations of the form 'an increase of x grams of algae per square metre' or of 'y grams of chlorophyll per litre', as some defining boundary which, when passed, becomes eutrophication. Eutrophication can occur anywhere on a continuum from low oligotrophic to extreme hypertrophic, and small absolute changes at the oligotrophic end of the spectrum may nevertheless have a very significant impact. As we know, although some sophisticated methods such as algal bioassays have been developed in some countries, there is no 'standard' universal measurement in Europe' (European Commission, DG Environment, Criteria Used for the Definition of Eutrophication in Marine and Coastal Waters (2001) at 5).
76. 91/271/EEC and Case C-280/02 Commission v France [2004] All ER (D) 142 (Sep).
77. See also, Case C-258/00 Commission v France [2002] ECR I-5959.
78. Case C-280/02 Commission v France [2004] All ER (D) 142 (Sep) para 18.
79. Ibid, para 22.
80. Ibid, para 23.
81. Ibid, para 24.
82. Ibid, para 34.
83. As it has been observed 'most, perhaps all, EU marine waters have been subject to eutrophication over a period of hundreds, perhaps thousands, of years. For EU waters the question 'has eutrophication occurred?' may therefore be fairly simply answered 'yes'. The question of interest is really, 'has unacceptable eutrophication occurred'; this cannot be answered by appeal to 'science' or fact alone' (emphasis added) [European Commission, DG Environment, Criteria Used for the Definition of Eutrophication in Marine and Coastal Waters (2001) at 30].
84. Royal Commission on Environmental Pollution, Setting Environmental Standards, Twenty-first Report (1998) Cm 4053 para 2.50.
85. Case C-355/90 Commission v Spain Opinion of Advocate General Van Gervan [1993] ECR I-4221.
86. Wild Birds Directive (79/409/EEC) Art.4, concerning special conservation measures for Annex I species and migratory birds, and the need to avoid pollution and deterioration of habitats in protected areas and to 'strive to' avoid this in areas outside protected areas.
87. [1993] ECR I-4221 para 51.
88. Ibid, paras 53 and 54.
89. Ibid, paras 52 and 53.
90. For general academic literature on the Water Framework Directive see D. Matthews, 'The Framework Directive on Community Water Policy: A New Approach for EC Environmental Law' Yearbook of European Law (1997) at 191
91. W. Howarth, 'Accommodation Without Resolution? Emission Controls and Environmental Quality Objectives in the Proposed EC Water Framework Directive' Environmental Law Review (l999) at 6
92. D. Grimeaud, 'Reforming EU Water Law: Towards Sustainability' European Environmental Law Review (2001) pp 41-51, 88-97 and 125-135
93. A. Farmer, 'The EC Water Framework Directive' Water Law (2001) at 40
94. G. Kallis and D. Butler, 'The EU Water Framework Directive: Measures and Implications' Water Policy (2001) at 125
95. W. Howarth and D. McGillivray, Water Pollution and Water Quality Law (2001) Chapter 5. From the perspective of environmental non-governmental organisations, see World Wide Fund for Nature and European Environmental Bureau, Tips and Tricks' for Water Framework Directive Implementation (2004), available at http://www.eeb.org.
96. Although see the Proposed Ecological Quality of Water Directive COM(93) 680 final, which, though abandoned, can be seen as a precursor of ecological measures incorporated in the Water Framework Directive.
97. The point may fairly be made that 'good status' is a somewhat ambiguous requirement which may serve as an aspiration rather than a mandatory obligation because of the range of exceptions and qualifications which are allowed in relation to its realisation. The main exceptions relate to artificial and heavily modified surface waters, phased achievement of objectives, less stringent environmental objectives, temporary deterioration of water status, and new modifications of physical characteristics and sustainable development activities (see Art.5(4) to (8) Water Framework Directive). The cumulative effect of these exceptions may be that there are actually quite extensive bodies of waters to which the good status requirement will not be fully applicable.
98. 'Good chemical status' is achieved where the environmental objectives of the Directive are met, so that environmental quality standards (established under Annex IX to the Directive) standards for priority substances (under Art. 16(7) and Annex X) and other relevant environmental standards are realised (Art.2(24)).
99. Art.2(18) Water Framework Directive.
100. Art.2(22) Water Framework Directive.
101. Generally see European Commission website, europa.eu.int/comm/ environment/water/water-framework/implementation.html.
102. Generally see European Commission, Common Implementation Strategy for the Water Framework Directive (2000/60/EC: Strategic Document (2001) and on ecological classification see Guidance Document No 13: Overall Approach to the Classification of Ecological Status and Ecological Potential (2005), available at forum.europa.eu.int/Public/irc/env/wfd/ library.
103. Para 1.4.1 Annex V Water Framework Directive requires the results of the intercalibration exercise to be published by the Commission with 6 years of the entry into force of the Directive (22 December 2006). See Common Implementation Strategy, Guidance Document No 6: Towards a Guidance on Establishment of the Intercalibration Network and the Process of the Intercalibration Exercise (2003)
104. and Guidance Document No 14: Guidance on the Intercalibration Process 2004-2006 (2005). The UK is participating in the exercise through the Ribble Pilot River Basin Project, see http://www.environment-agency.gov.uk/regions/northwest/501317/.
105. Until common criteria for ecological status are determined at Community level, national guidelines have been adopted for this purpose. See Water Framework Directive United Kingdom Technical Advisory Group, guidance http://www.wfduk.org/tag_guidance/.
106. Para 1.2 Annex V Water Framework Directive.
107. Para 1.2.1 Annex V Water Framework Directive.
108. OSPAR, Strategy on Hazardous Substances (1998, revised and reaffirmed 2003, Reference number 2003-21) available at OSPAR website, http://www.ospar.org, and discussed at Section 4 above.
109. Art.4(1) (a)(i) Water Framework Directive.
110. Art.4(7) Water Framework, Directive.
111. Art.11 Water Framework Directive.
112. Art.13(3) (i) Water Framework Directive.
113. Under Art.4(1) (a)(iii) Water Framework Directive and see Common Implementation Strategy, Guidance Document No 4: Identification and Designation of Heavily Modified and Artificial Water Bodies (2003), available at forum.europa.eu.int/Public/irc/env/wfd/library.
114. Art.4(5)(b) Water Framework Directive.
115. Note that the concept of imperative reasons of 'overriding public interest' has previously been used in the Habitats Directive (92/43/EEC) as a basis for allowing proportionate derogation from obligations in respect of protected sites [under Art.6(4)] and the protection of species from derogation (under Art.16). In relation to Art.6, the European Commission has provided guidance on its interpretation, European Commission, Managing Natura 2000 Sites: The Provisions of Article 6 of the Habitats Directive 92/43/EC (2000) at 44.
116. On the national interpretation of 'overriding public interest' see J. Holder, 'Overriding Public Interest in Planning and Conservation Law', Journal of Environmental Law (2004) at 401 (commenting on In Newsum and Others v Welsh Assembly Government [2004] EWHC 50 (Admin),
117. but see also reversal of this decision by the Court of Appeal in [2004] EWCA (Civ) 1565.
118. Art.4(7) Water Framework Directive.
119. The point may be fairly noted that ecological impacts may constitute 'significant effects on the environment' in relation to public or private development projects that fall within the scope of the Environmental Assessment Directive (85/337/EEC as amended by 97/11EC). This requires an identification of the direct and indirect effects of a project on fauna and flora, amongst other things (Art.3) and that information about such impacts should be taken into consideration in the development consent procedure (Art.8). However, the Directive provides no explicit or precise criteria as to what impacts are to count as 'significant' or what substantive consequences follow from this.
120. Generally see J. Treweek, Ecological Impact Assessment (1999)
121. S. Tromans and K. Fuller, Environmental Impact Assessment-Law and Practice (2003)
122. and J. Holder, Environmental Assessment: The Regulation of Decision Making (2004). By comparison, the requirements of the Water Framework Directive are considerably more specific and more demanding, particularly in relation to waters of high ecological status.
123. E.O. Wilson, The Diversity of Life (1992) particularly Chapter 10.
124. See D.B. Botkin, Discordant Harmonies: A New Ecology for the Twenty-First Century (1990) particularly Chapter 5 which traces the ancient origins of the idea of a 'divine order' of nature.
125. G.P. Marsh, Man and Nature (1864)
126. quoted by D.B. Botkin, Discordant Harmonies: A New Ecology for the Twenty-First Century (1990)
127. and quoted by J.B. Weiner, 'Beyond the Balance of Nature', 7 Duke Environmental Law & Policy Forum 1 (1996) at 7.
128. A.G. Tansley, 'The Use and Abuse of Vegetational Concepts and Terms', 16(3) Ecology 284 (1935) at 302.
129. See, for example, A.D. Tarlock, 'The Nonequilibrium Paradigm in Ecology and the Partial Unraveling of Environmental Law', 27 Loyola of Los Angeles Law Review (1994) at 1121
130. J.B. Weiner, 'Beyond the Balance of Nature', 7 Duke Environment Law & Policy Forum (1996) at 1
131. and D.B. Botkin, 'Adjusting Law to Nature's Discordant Harmonies', 7 Duke Environmental Law & Policy Forum (1996) at 25. This article purposefully sidesteps broader discussion the merits and demerits of the 'ecosystem management' approach to conservation, which have been the focus of much debate in the United States, but less prominent in the UK.
132. For a classic starting point on the extensive literature, see, R.E. Grumbine, 'What is Ecosystem Management? 8 Conservation Biology (1994) at 27
133. and, covering more recent developments, R.O. Brooks, R. Jones and R.A. Virginia, Law and Ecology: The Rise of the Ecosystem Regime (2002).
134. Under sections 82-84 Water Resources Act 1991. See the Surface Waters (River Ecosystem) (Classification) Regulations 1994 SI 1994 No. 1057, though it is understood that no designation has ever been made of any waters for which water quality objectives are established under these Regulations.
135. A comparison may also be drawn with the difficulties that have arisen in establishing water quality standards, at state level, for designated used such as fisheries under the United States Clean Water Act (33 U.S.C. section 1313 (c)(2)(A) (2000)) where there has been a reluctance to factor in non-water quality-related threats to species, if necessary, recognising the need for a precautionary element in the assessment of such threats. See C.N. Johnston, 'Salmon and Water Temperature: Taking Endangered Species Seriously in Establishing Water Quality Standards', 33 Environmental Law (2003) at 151.
136. See also R.W. Alder, 'The Two Lost Books in the Water Quality Trilogy: The Elusive Objectives of Physical and Biological Integrity', 33 Environmental Law (2003) at 29, on the broader failings of the Clean Water Act to secure 'physical and biological integrity' of waters.
137. See also Department of the Environment, Freshwater Quality: Government Response to the Sixteenth Report of the Royal Commission on Environmental Pollution (1995) at 10.
138. See R.W. Edwards, 'Introduction' in P.J. Boon and D.L. Howell (eds), Freshwater Quality: Defining the Indefinable (1997) at 3
139. and K.B. Pugh, 'Organizational Use of the Term 'Freshwater Quality' in Britain' ibid at 20.
140. For more instances of the ways in which a water body can be subject to variation for natural or other causes, see European Commission, Common Implementation Strategy for the Water Framework Directive (2000/60/EC), Guidance Document No.13: Overall Approach to the Classification of Ecological Status and Ecological Potential (2005) Annex I para 3.3.
141. For example, 'even for those areas, such as the Dutch coastal zone and the Wadden Sea, where it was assumed that the tenfold increase in plant production since the 1950s was controlled by phosphorus, a reportedly significant reduction in phosphorus inputs has not resulted in the expected reduction in plant growth' [European Commission, DG Environment, Criteria Used for the Definition of Eutrophication in Marine and Coastal Waters (2001) at 28
142. citing V.N. De Jong, 'High Remaining Productivity in the Dutch Western Wadden Sea Despite Decreasing Nutrient Inputs from Riverine Sources 33 Marine Pollution Bulletin (1997) at 427].
143. See, for example, the Bathing Water Directive (76/160/EEC) which measures compliance in statistical terms, so that conformity is shown where 95% of samples for imperative parameters and 90% of other parameters are met (other than coliforms which require 80% compliance), with samples being taken at specified intervals and sampling points (Art.5 and Annex). See W. Howarth and D. McGillivray, Water Pollution and Water Quality Law (2001) section 5.5.2.
144. On the practical implications of dealing with the uncertainty of data in relation to the classification of variable water bodies, see European Commission, Common Implementation Strategy for the Water Framework Directive (2000/60/EC), Guidance Document No.13: Overall Approach to the Classification of Ecological Status and Ecological Potential (2005)
145. D.B. Botkin, Discordant Harmonies: A New Ecology for the Twenty-First Century (1990) at 194
146. and see also B. McKibben, The End of Nature (1990).
147. B. Pardy, 'Changing Nature: The Myth of Inevitability of Ecosystem Management', 20 Pace Environmental Law Review 675 (2003) at 679.
148. Similarly, it has been suggested that even upland rivers in Britain are significantly damaged by acidification, excessive penetration of sunlight increasing water temperature, soil erosion clogging the gravel where fish spawn and dams and weirs blocking the passage of migratory fish (Anon, 'Defining Ecological Quality: The Water Framework Challenge', 347 ENDS Report December (2003) at 22.
149. W.D. Adams, Nature's Place (1986) at xi.
150. See also W.D. Adams, Future Nature (1996) at 5, where the same author even seems to have had some doubts about the 'naturalness' of the coastline: 'The coast of the UK seems to be natural and unchanging, but its naturalness and sense of permanence is to a large extent illusory. Not only is it an illusion, it is one deliberately created, a skilful trompe l'oeil... [Its] naturalness ... is achieved by a whole battery of legal and administrative measures ... and by a wide range of organisations ... [who] make their contribution to the 'naturalness' of the coast...'.
151. A contrast may also be drawn between minimal anthropogenic impact and the legal understanding of 'naturalness' in another context. 'Natural habitats' is defined for the purposes of the Habitats Directive (92/43/ EEC) to mean 'terrestrial or aquatic areas distinguished by geographic, abiotic and biotic features, whether entirely natural or semi-natural' [Art.1(b)]. In Newsum and Others v Welsh Assembly Government [2004] EWHC 50 (Admin) at paras 118-120, it was stated that 'semi-natural' means natural 'partly by the activity and effect of nature and partly by the activity and effect of man' and, on that basis, the argument that the site was not semi-natural was rejected.
152. R v Nature Conservancy Council, ex parte London Brick Property Ltd [1996] Env LR 1.
153. Under section 28 Wildlife and Countryside Act 1981, now amended by the Countryside and Rights of Way Act 2000.
154. [2004] Env LR 7 [2003] EWHC 1599 (Admin) QBD (Admin Ct) (under section 28 Wildlife and Countryside Act 1981, as amended).
155. The area was found to be especially suitable for nesting by stone curlew because cultivation had resulted in large areas of relatively bare ground with only short vegetation. This suited the curlews because the unobstructed vista allowed them to be aware of predators, and the open stony ground allowed their eggs to be camouflaged.
156. [2004] Env LR 39
157. 4] EWHC 50 (Admin), reversed by the Court of Appeal in [2004] EWCA (Civ) 1565.
158. Conservation (Natural Habitats etc) Regulations 1994 (SI 1994 No.2716) and the Habitats Directive (92/43/EEC).
159. See n 101 above on the definition of 'natural habitats' (including 'semi-natural habitats') under Art.1(b) Habitats Directive.
160. [2004] Env LR 40
161. 4] EWHC 153
162. QBD (Admin) (subsequently see R (on the Application of Trailer & Marina (Leven) Ltd) v Secretary of State for the Environment, Food & Rural Affairs and English Nature [2004] EWCA Civ 1580) where the dispute concerned compensation in relation to management agreements for sites of special scientific interest (under sections 28-32 Wildlife and Countryside Act 1981, as amended by section 75(1) and Schedule 9 Countryside and Rights of Way Act 2000) and its compatibility with rights of peaceful enjoyment of property (under Art.1 of Protocol 1 of the European Convention on Human Rights).
163. Perhaps as a result of the disuse, and because of the clean and calcareous water supply, the canal supported an exceptionally wide range of aquatic plants and was rated amongst the best national examples of standing water plant diversity.
164. The other four reported cases on site-specific nature conservation, and the sites at issue, were the following. First, R. (on the Application of Brown) v Secretary of State for Transport [2004] Env LR 2
165. 3] EWHC 819 (Admin) QBD (Admin Ct) involving a challenge to a planning permission and compulsory purchase orders for the construction of a bypass bridge over the Taw estuary on the basis that an existing site of special scientific interest (under section 28 Wildlife and Countryside Act 1981) should have been designated as a special protection area under the Wild Birds Directive (79/409/EEC) and that a licence should have been obtained in respect of deliberate disturbance of protected species [under Reg.39 Conservation (Natural Habitats etc) Regulations 1994, SI 1994 No.2716]. The site was an area of saltmarsh which seems to have been 'natural' insofar as there was no indication of it having been modified by human activity, though few details of the character of the site are provided in the report.
166. Second, Bown v Secretary of State for Transport, Local Government and the Regions [2004] Env LR 26
167. 3] EWCA Civ 1170 (the Court of Appeal decision in Env LR 2) in relation to the planning permission allowing the construction of a bypass bridge over the Taw estuary. Although more evidence was considered as to the populations of protected birds inhabiting the site, no further information was provided as to its natural or modified character.
168. Third, Moggridge v National Assembly for Wales [2004] Env LR 18
169. 3] EWHC 2188 (Admin) QBD (Admin Ct), concerning challenge to compulsory purchase orders to allow road construction associated with a business park development, amongst other things, because construction would disturb a protected bat population and insufficient regard had been given to obligations under the Habitats Directive (92/43/EC) and the Conservation (Natural Habitats etc) Regulations 1994 (SI 1994 No.2716) giving rise to an offence concerning the disturbance of bats. Although information about the site was sparse, the project was located in an urban area surrounded by coal mining, industrial and agricultural communities. It was noted that ongoing surveys indicated that the bats roosted in holes in trees on land on the site of the proposed road, and these trees would need to be felled to allow the road to be constructed. The 'natural' character of the woodland was not specifically addressed.
170. Fourth, R (on the Application of Friends of the Earth) v Environment Agency [2004] Env LR 31 concerning a challenge to a modification of a waste management licence allowing the dismantling of ships containing toxic waste substances at a location close to a site of special scientific interest and a special area of conservation (under the Habitats Directive (92/43/EC) and the Conservation (Natural Habitats & c.) Regulations 1994, SI 1994 No.2716). The dismantling site was located in a heavily industrialised area, between a power station and a chemical plant, but fronted on to a channel, directly opposite to the special area of conservation. The area itself was described as comprising intertidal sand and mudflats, rocky shore, saltmarsh, freshwater marsh and sand dunes, and supporting large numbers of water birds. The general impression was of a natural 'oasis' closely surrounded by the most intrusive kinds of industrial land use.
171. On the meaning of 'minimal', it has been noted that the Water Framework Directive defines 'good ecological status', amongst other things, to allow 'low levels of distortion' of biological elements resulting from human activity, but these should deviate from undisturbed conditions 'only slightly' (see Annex V Table 1.2), see Section 4 above. 'Minimal', therefore, seems to be used to mean something less than 'slight' in the terminology of the Directive, but the practical meanings of these terms remain to be determined. On the implications of defining high-status ecosystems out of existence, see the comments attributed to Paul Logan of the Environment Agency reported in Anon., 'Defining Ecological Quality: The Water Framework Challenge' ENDS Report 347, December 22 (2004) at 24.
172. See D.B. Botkin, Discordant Harmonies: A New Ecology for the Twenty-First Century (1990) at 52, giving the example of how populations of tree species have been extensively modified by burning by American Indians
173. and see L. Gooden, 'Preserving Natural Heritage: Nature as Other', 22 Melbourne University Law Review (1998) at 719 on the need to displace the 'separate' vision of people and nature with a more integrative approach to natural heritage law.
174. For an interesting recent discussion of the broader context, see S. Coyle and K. Morrow, The Philosophical Foundations of Environmental Law: Property, Rights and Nature (2004).
175. B. Pardy, Changing Nature: The Myth of Inevitability of Ecosystem Management', 20 Pace Environmental Law Review 675 (2003) at 684-685.
176. Also see O.A. Houch, 'Are Humans Part of Ecosystems?', 28 Environmental Law (1998) at 1, suggesting that although humans are parts of ecosystems, they are not the measure of ecosystems and management goals need, primarily, to consider species other than human beings.
177. J.B. Ruhl, 'The Myth of What is Inevitable under Ecosystem Management: A Response to Pardy', 21 Pace Environmental Law Review 315 (2004) at 319.
178. D.B. Botkin, Discordant Harmonies: A New Ecology for the Twenty-First Century (1990) at 193.
179. Notably, the Habitats Directive (92/43/EEC) lists under Annex I (concerned with Habitat Types of Community Interest whose conservation requires the designation of special areas of conservation) lowland and mountain hay meadows (habitat types 38.2 and 38.3). This is a curious example of a terrestrial habitat, which is recognised to be of value at Community level, but necessarily dependent upon an anthropogenic impact on a continuing basis.
180. 'Sustainability' here refers to situations where a reasonably consistent level and quality of biodiversity has been attained over time and nothing prevents abrupt discontinuation. It is necessary to contrast and distance this idea from that of 'sustainable development', which is concerned, amongst other things, with changes to land use that may be justified on the basis of an assessment of developmental benefits weighed against environmental costs [on the vast literature on sustainable development a good starting point is M. Sunkin, D. Ong and R. Wight, Sourcebook on Environmental Law (2nd edn, 2002) Chapter 1]. Ecological sustainability is suggested as a basis for identification of ecosystems with a human component that should be ecologically valued and, therefore, justify legal protection, not to determine the very different issue of whether that ecological value may be sacrificed in return for a developmental gain.