§6 ‘WATER DAMAGE’

130. As can be seen from Box 3 above, in terms of material scope, ‘water damage’ relates to two main categories of waters: the waters concerned under the Water Framework Directive; and marine waters within the scope of the Marine Strategy Framework Directive. The Guidelines consider these in turn. (A) WATERS CONCERNED UNDER THE WATER FRAMEWORK DIRECTIVE Material and geographical scope of the waters concerned 131. To understand the material scope of ‘water damage’, it is necessary to understand what is meant by the expression ‘waters concerned’. ‘Waters’ encompass all waters covered by the Water Framework Directive – see Box 8 below. The purpose of the Water Framework Directive is to ‘establish a framework for the protection of inland surface waters, transitional waters, coastal waters and groundwater’ (138). The waters referred to in this quotation are the waters covered by the Water Framework Directive. The Water Framework Directive applies to all of them, regardless of their size and characteristics (139). Further relevant definitions are set out in Box 9 below. The waters ‘concerned’ are those affected by damage. Box 8: Definition of ‘waters’ Article 2(5) of the Environmental Liability Directive defines ‘waters’ to mean ‘all waters covered by Directive 2000/60/EC.’ Box 9: Definitions found in the Water Framework Directive relevant to ‘waters’. The Water Framework Directive expressly defines two basic classes of water, ‘surface water’ and ‘groundwater’. Article 2(1) of the Water Framework Directive defines ‘surface water’ to mean ‘inland waters, except groundwater; transitional waters and coastal waters, except in respect of chemical status for which it shall also include territorial waters’. Article 2(2) of the Water Framework Directive defines ‘groundwater’ to mean ‘all water which is below the surface of the ground in the saturation zone and in direct contact with the ground or subsoil’. As can be seen, the definition of ‘surface water’ refers to four sub-classes of waters: ‘inland waters’, ‘transitional waters’, ‘coastal waters’ and ‘territorial waters’. The first three of these are themselves expressly defined. Article 2(3) of the Water Framework Directive defines ‘inland water’ to mean ‘all standing or flowing water on the surface of the land, and all groundwater on the landward side of the baseline from which the breadth of territorial waters is measured’. Article 2(6) of the Water Framework Directive defines ‘transitional waters’ to mean ‘bodies of surface water in the vicinity of river mouths which are partly saline in character as a result of their proximity to coastal waters but which are substantially influenced by freshwater flows’. Article 2(7) of the Water Framework Directive defines ‘coastal water’ to mean ‘surface water on the landward side of a line, every point of which is at a distance of one nautical mile on the seaward side from the nearest point of the baseline from which the breadth of territorial waters is measured, extending where appropriate up to the outer limit of transitional waters’. 132. As can be seen from the definitions set out in Box 9, the geographical scope of surface water extends to coastal waters, and, with regard to chemical status, to territorial waters. Territorial waters extend up to twelve nautical miles into the sea from the baseline. Two additional points may be noted. Firstly, so far as surface water is concerned, there is some overlap with marine waters – as can be seen from Box 12 below. Where there is overlap, the Water Framework Directive takes precedence for purposes of the Environmental Liability Directive (see Box 12 and paragraph 175 below). Secondly, the Water Framework Directive includes further relevant sub-divisions of waters, as Box 10 below shows. Thirdly, when it comes to assessing the significance of adverse effects on the waters concerned under the Water Framework Directive, account needs to be taken of geographical limitations linked to the reference concepts for adverse effects. These are considered below. Box 10: Further relevant definitions of sub-divisions of ‘waters’ in the Water Framework Directive. Article 2(4) of the Water Framework Directive provides that ‘river’ means ‘a body of inland water flowing for the most part on the surface of the land but which may flow underground for part of its course’. Article 2(5) of the Water Framework Directive provides that ‘lake’ means ‘a body of standing inland surface water’. Article 2(8) of the Water Framework Directive provides that ‘artificial water body’ means ‘a body of surface water created by human activity’. Article 2(9) of the Water Framework Directive provides that ‘heavily modified water body’ means ‘a body of surface water which as a result of physical alterations by human activity is substantially changed in character, as designated by the Member State in accordance with the provisions of Annex II’. Article 2(10) of the Water Framework Directive provides that ‘body of surface water’ means ‘a discrete and significant element of surface water such as a lake, a reservoir, a stream, river or canal, part of a stream, river or canal, a transitional water or a stretch of coastal water’. Article 2(12) of the Water Framework Directive provides that ‘body of groundwater’ means ‘a distinct volume of groundwater within an aquifer or aquifers’. Article 2(11) of the Water Framework Directive provides that ‘aquifer’ means ‘a subsurface layer or layers of rock or other geological strata of sufficient porosity and permeability to allow either a significant flow of groundwater or the abstraction of significant quantities of groundwater’. Reference concepts for adverse effects 133. The reference concepts for adverse effects comprise the ‘ecological [relevant for surface waters], chemical [relevant for both surface waters and groundwaters] and/or quantitative status [relevant for groundwater] and/or the ecological potential [relevant for heavily and artificially modified water bodies] as defined in Directive 2000/60/EC’ of the waters concerned. Taking account of the differences between chemical status for surface waters and groundwaters, this means that there are five separate kinds of status that may have to be considered, and that reference must be made to the Water Framework Directive for their definitions. As Box 11 below shows, there are express definitions of ‘ecological status’ and ‘quantitative status’; on the other hand, the definitions of ‘chemical status’ and ‘ecological potential’ must be inferred from definitions of ‘good chemical status’ and ‘good ecological potential’. Box 11: Reference concepts as defined in the Water Framework Directive. The Water Framework Directive contains precise definitions of ‘ecological status’ and ‘quantitative status’. Article 2(21) of the Water Framework Directive provides that ‘ecological status’ is ‘an expression of the quality of the structure and functioning of aquatic ecosystems associated with surface waters, classified in accordance with Annex V’. Article 2(26) of the Water Framework Directive provides that ‘quantitative status’ is ‘an expression of the degree to which a body of groundwater is affected by direct and indirect abstractions’. While the Water Framework Directive contains express definitions of ‘ecological status’ and ‘quantitative status’, it does not contain express definition of ‘chemical status’. Instead, its Articles 2(24) and 2(25) define ‘good surface water chemical status’ and ‘good groundwater chemical status’ respectively (emphasis added). ‘Good surface water chemical status’ is defined to mean ‘the chemical status required to meet the environmental objectives for surface waters established in Article 4(1)(a), that is the chemical status achieved by a body of surface water in which concentrations of pollutants do not exceed the environmental quality standards established in Annex IX (140) and under Article 16(7), and under other relevant Community legislation setting environmental quality standards at Community level’. ‘Good groundwater chemical status’ is defined to mean ‘the chemical status of a body of groundwater, which meets all the conditions set out in table 2.3.2 of Annex V (141)‘. Likewise, the Water Framework Directive does not contain an express definition of ‘ecological potential’ but its Articles 2(23) defines ‘good ecological potential’ to mean ‘the status of a heavily modified or an artificial body of water, so classified in accordance with the relevant provisions of Annex V.’ 134. Under the Water Framework Directive, the five reference concepts are principally used in relation to water bodies delineated pursuant to that directive and assessed on the basis of monitoring programmes that leave a margin of discretion to Member States in terms of frequencies and monitoring sites. Within this legal framework, the concepts, and the concept of delineated water bodies, are principally used for the purpose of achieving long-term objectives, through appropriate river basin management and planning of measures. In this respect, Guidance document No.2 Identification of Water Bodies (142), a non-binding reference document developed under the Common Implementation Strategy for the Water Framework Directive, notes that the concept of water bodies is used for reporting and assessing compliance with the Directive’s principal environmental objectives; however, the delineation of a water body is a tool and not an objective in itself. 135. In the context of the Environmental Liability Directive, the five reference concepts relate to the same waters concerned, i.e. those waters covered by the Water Framework Directive, but serve a different purpose, i.e. they are the benchmarks for assessing water damage, i.e. damage that significantly adversely affects the quality elements defining these reference concepts. 136. As will be further demonstrated below, the five reference concepts themselves refer to multiple further concepts in the Water Framework Directive. Depending on the waters adversely affected, these further concepts will need to be taken into account when implementing the definition of ‘water damage’. For purposes of the Environmental Liability Directive, the five concepts can be usefully divided between those that refer to surface water, namely ecological status, ecological potential and surface water chemical status, and those that refer to groundwater, namely groundwater chemical status and quantitative status. 137. The definition of ‘ecological status’ refers to the quality of the structure and functioning of aquatic ecosystems associated with surface waters, classified in accordance with Annex V of the Water Framework Directive. Annex V refers to five sub-classes or divisions of surface water: rivers; lakes; transitional waters; coastal waters; artificial and heavily modified water bodies. Rivers, lakes and artificial and heavily modified water bodies are all, in fact, further divisions of the sub-class ‘inland water’ referred to in Box 9 above and all are expressly defined in the Water Framework Directive – see Box 10 above. ‘Ecological status’ relates to rivers, lakes, transitional waters and coastal waters. Annex V also sets out quality elements relevant to these different sub-classes and divisions of surface water: biological elements; hydromorphological elements supporting the biological elements; general physico-chemical elements supporting the biological elements; specific pollutants for which national environmental quality standards must be set. 138. The definition of ‘good ecological potential’ also contains a reference to Annex V and refers to artificial or heavily modified water bodies. More specifically, Annex V, 1.2.5 defines the maximum, good and moderate ecological potential of artificial and heavily modified water bodies and does so by referring to the same quality elements that are used for ecological status for the closest other comparable surface waters figuring in Annex V, i.e. rivers, lakes, transitional waters and coastal waters. It reflects the values of these quality elements as far as possible, whilst also taking into account the unavoidable impact of the physical conditions which result from the artificial or heavily modified characteristics of the water body concerned – for example, a canal or port. All of this means that, as a reference concept, ‘ecological potential’ is very closely linked to ‘ecological status’. 139. From the definition of ‘good surface water chemical status’, it can be inferred that, for surface waters, ‘chemical status’ concerns concentrations of chemical pollutants. Since the Environmental Liability Directive was adopted, specific measures have been adopted which are relevant for surface water chemical status. More specifically, pursuant to Article 16 of the Water Framework Directive, Directive 2008/105/EC of the European Parliament and of the Council of 16 December 2008 on environmental quality standards in the field of water policy, amending and subsequently repealing Council Directives 82/176/EEC, 83/513/EEC, 84/156/EEC, 84/491/EEC, 86/280/EEC and amending Directive 2000/60/EC of the European Parliament and of the Council (143) (‘the Environmental Quality Standards Directive or EQSD’), as amended (144) has been adopted. Amongst other things, this provides for quality standards for priority (hazardous) substances (145) in surface water. 140. The definitions of ‘good groundwater chemical status’ and ‘quantitative status’ both refer to ‘body of groundwater’, a term which is separately defined (see Box 10 above). 141. From the definition of ‘good groundwater chemical status’, it can be inferred that groundwater chemical status refers to concentrations of chemical pollutants as well as conductivity. Conductivity relates to saline or other intrusion (146). Pursuant to Article 17 of the Water Framework Directive, Directive 2006/118/EC of the European Parliament and of the Council of 12 December 2006 on the protection of groundwater against pollution and deterioration (147) (‘the Groundwater Directive’) has been adopted. This, amongst other things, provides for Union standards for concentrations of nitrates and pesticides in groundwater (148), as well as for the obligation for Member States to adopt national thresholds for a series of other pollutants listed in its Annex. Assessment of significant adverse effects Circumstances 142. In contrast to damage to protected species and natural habitats, it follows from Article 3(1)(a) that the Environmental Liability Directive only applies to water damage caused by any of the occupational activities described in Annex III. Several of these occupational activities, such as abstraction and impoundment (149), and the discharge or injection of pollutants (150), are especially relevant to water. Several are regulated under the Water Framework Directive. Context 143. For the purposes of assessing the significance of damage by reference to the five reference concepts, the following classes and divisions of ‘waters’ all need to be distinguished: — Groundwaters; — Rivers; — Lakes; — Transitional waters; — Coastal waters; territorial waters; — Artificial and heavily modified water bodies. 144. As already noted, it is useful to make a basic distinction between damage that affects groundwaters and damage that affects surface waters, since the five reference concepts are aligned with this basic distinction. It is possible that adverse effects will affect both groundwater and surface water and more than one division of surface water, but, if so, the damage will need to be assessed with reference to each relevant water class or division. This is because reference concepts and relevant quality elements vary according to water class or division. For damage affecting surface waters, for instance, the reference concepts of ‘ecological status’ and ‘ecological potential’ make it necessary to refer to the different divisions of surface water mentioned in the last paragraph. 145. The connectedness of different water bodies also needs to be taken into account. Chemical pollution may pass between different classes and divisions of water, for instance – as where a chemical spillage in a river subsequently pollutes a lake. 146. The concept of ‘water damage’ refers to significant adverse effects on the status of waters as defined in the Water Framework Directive. However, it is important to bear in mind that the concept of ‘damage’ in Article 2(2) of the Environmental Liability Directive covers not only measurable adverse changes to water but also measurable impairment of the services that water provides. The adverse effects covered by the environmental damage category ‘water damage’ thus encompass not only measurable changes to water but measurable impairment of the services that water provides. This is confirmed by the text of Annex II.1 of the Environmental Liability Directive which refers to both natural resource and natural resource services when considering the remediation of damage to water, protected species and natural habitats. On the other hand, as mentioned before, the concept of ‘damage’ is not self-standing and needs to be read in the light of the definition of ‘environmental damage’ – and more specifically of ‘water damage’. The impairment of the services that water provides must, therefore, be accompanied by significant adverse effects on the status of the waters concerned. 147. Water damage may involve a loss of services to protected species and natural habitats. For example, a protected species may depend on a river having particular hydro morphological conditions. 148. Water damage may also involve a loss of services for the benefit of the public. The loss of services may concern large or small numbers of people, even individuals. 149. Some services, such as provision of drinking water and of clean bathing water, have an important health dimension. A damaging occurrence may contaminate a drinking water source, for example, rendering it unsafe to use for drinking water purposes. 150. The Water Framework Directive provides for a register of protected areas (151), which may be relevant for purposes of identifying certain relevant services and impairments. The protected areas comprise, amongst others, areas used for the abstraction of drinking water; areas designated for the protection of economically significant aquatic species; bodies of water designated as recreational waters, including areas designated as bathing waters; and areas designated for the protection of habitats or species where the maintenance or improvement of the status of water is an important factor in their protection, including relevant Natura 2000 sites designated under the Nature Directives. 151. In the context of the Water Framework Directive, the five reference concepts relate to delineated water bodies and are used, in that framework, to determine whether the water bodies are in good status (or potential), or, for those not in good status, to assess the gap to good status and identify the appropriate measures to fill that gap. Under the Water Framework Directive, the status of water bodies is assessed on the basis of monitoring programmes, and revised every six years. In the context of the Environmental Liability Directive, it is important to take into account the specific content of the latter, and the need to enable a more short-term identification of a significant adverse effect on the status of the water bodies, as defined in the Water Framework Directive. In this regard, the expression ‘that significantly adversely affects … the status’ is not to be conflated with a deterioration of status or change of status under the Water Framework Directive (although it can include these). The expression must be read in the light of the objective of the Environmental Liability Directive, and of the concept of ‘damage’, i.e. it is necessary to take into account the notions of (measurable) adverse changes to the waters and impairment of the services which the waters provide. Thus the specificities of the Environmental Liability Directive must be taken into account when interpreting and using the five reference concepts to assess and determine the significance of actual water damage: — As noted above, the text of Article 2(1)(b) of the Environmental Liability Directive defines ‘waters’ to mean all waters covered by Directive 2000/60/EC; — The impairment of the natural resource services provided by water may relate to areas of water that are more limited than those comprised in the water bodies delineated under the Water Framework Directive. For example, there may be impairment of the provision of water for human consumption as a result of the contamination of a single abstraction point; — As for adverse changes to the natural resource (as distinct from impairment of natural resource services), the actual area where adverse changes are experienced may not neatly fit within the boundaries of a single delineated water body, but may straddle several, or concern only part of a water body; — In the context of the Water Framework Directive, effects on part of a water body were considered by the Court in Case C-535/18, IL and Others v Land Nordrhein-Westfalen, which concerned the risk of chemical pollution of groundwater caused by the construction of a highway. The Court noted that exceedance in only one monitoring point would imply deterioration of chemical status of a significant part of the water body, even though it would be possible to classify the groundwater body as a whole as having good chemical status on the basis of Art 4(2)(c) of Directive 2006/118/EC, i.e. taking into account, [inter alia] where appropriate, the extent of the body of groundwater which is affected. Further, the Court underlined that exceedance of any one threshold at any monitoring point would in any case constitute a deterioration of its chemical status in the sense of Article 4(1)(b)(i) of the Water Framework Directive (152), requiring action pursuant to the Groundwater Directive and the Water Framework Directive. This demonstrates that applying the Environmental Liability Directive at levels other than the entirety of a water body would not be at variance with the approach taken to the implementation of the Water Framework Directive and Groundwater Directive themselves. 152. This being said, the circumstances of a specific damaging occurrence may make it appropriate to apply the Environmental Liability Directive at the level of an entire delineated water body. For example, a toxic spillage may affect the entirety of a single lake. Or a body of groundwater may function as a distinct hydrological unit for purposes of quantitative status and the status elements relevant to this status category may need to be assessed in respect of the entire body of groundwater. Furthermore, much existing knowledge about the waters concerned may lie at the level of delineated water bodies, given that monitoring under the Water Framework Directive is organised in relation to such bodies. Focus and carrying out of the assessment 153. As with damage to protected species and natural habitats, the significance of the adverse effects of water damage should be assessed with reference to the baseline condition. The expression ‘baseline condition’ is not specifically mentioned in the definition of water damage. However, as can be seen from Box 4 above, the definition of ‘baseline condition’ covers all natural resources and services. Furthermore, the baseline condition is mentioned in Annex II.1 in the context of both water damage and damage to protected species and natural habitats. 154. It follows from the definition of ‘baseline condition’ that the assessment of significance should relate to the area or areas of waters adversely affected, and that it should involve a comparison between the condition of that area or those areas before and after the damaging occurrence. 155. The Water Framework Directive requires surface and groundwater bodies to be classified in different status categories in accordance with Annex V of that directive. The classifications relate to the status elements that are to be the basis of both the estimation of the baseline condition and the measurement of adverse changes or possible adverse changes and impairments of services under the Environmental Liability Directive. Classifications already made under Annex V of the Water Framework Directive can therefore help to establish the condition of the area or areas of water adversely affected by a damaging occurrence. ‘The best information available’ is however not exclusively bound to information derived from the implementation of the Water Framework Directive. 156. To take one relevant division of surface waters, rivers, the status categories for ecological status are high, good, moderate, poor and bad (153). 157. For rivers classified as having high, good and moderate ecological status, the Water Framework Directive provides a detailed set of descriptions corresponding to several of the different status elements: — For the biological quality elements, there are descriptions of the following elements: phytoplankton; macrophytes and phytobenthos; benthic invertebrate fauna; and fish fauna; — For hydromorphological quality elements, there are descriptions of the following elements: hydrological regime; river continuity; morphological conditions; — For physico-chemical quality elements, there are descriptions of the following elements: general conditions; specific synthetic pollutants; specific non-synthetic pollutants. 158. Turning to groundwaters, for the reference concept ‘quantitative status’ there is a single status element, namely ‘groundwater level’. The detailed description of this reads as follows: ‘The level of groundwater in the groundwater body is such that the available groundwater resource is not exceeded by the long-term annual average rate of abstraction. Accordingly, the level of groundwater is not subject to anthropogenic alterations such as would result in: — failure to achieve the environmental objectives specified under Article 4 for associated surface waters, — any significant diminution in the status of such waters, — any significant damage to terrestrial ecosystems which depend directly on the groundwater body, and alterations to flow direction resulting from level changes may occur temporarily, or continuously in a spatially limited area, but such reversals do not cause saltwater or other intrusion, and do not indicate a sustained and clearly identified anthropogenically induced trend in flow direction likely to result in such intrusions.’ (154) 159. For the reference concept groundwater chemical status, there are two status elements, namely ‘general’ and ‘conductivity’, for which the Water Framework Directive provides detailed descriptions. The description reads as follows for the status element ‘general’: ‘The chemical composition of the groundwater body is such that the concentrations of pollutants: — as specified below, do not exhibit the effects of saline or other intrusions — do not exceed the quality standards applicable under other relevant [Union] legislation in accordance with Article 17 — are not such as would result in failure to achieve the environmental objectives specified under Article 4 for associated surface waters nor any significant diminution of the ecological or chemical quality of such bodies nor in any significant damage to terrestrial ecosystems which depend directly on the groundwater body’. 160. As can be seen from the status element ‘general’ in respect of the chemical status of groundwaters, there are further cross-references within the description of good chemical status. As has already been noted above, there is reference to quality standards under other legislation in accordance with Article 17 of the Water Framework Directive – and the Groundwater Directive has accordingly set standards for nitrates and pesticides, as well as an obligation for Member States to set national threshold values for a series of other pollutants listed in part A of its Annex II. 161. All of the above-mentioned elements (and corresponding elements for other divisions of waters) are potentially relevant when estimating the baseline condition and measuring the adverse change. The nature of the damage factors – i.e. whether they are additive, subtractive, extractive or destructive, as mentioned in paragraph 18 above – should indicate what range of status elements are likely to be relevant. 162. The varied nature of these status elements, as well as the possible varied services that a water body provides, implies a varied range of techniques and methodologies to estimate and measure both the baseline condition and adverse changes and impairments. They can include chemical analyses, habitat evaluation, toxicity measurements and bio-indices, for instance. Existing work done for purposes of classification and monitoring under the Water Framework Directive should be taken into account when estimating the baseline condition. Where no monitoring data exist for purposes of estimating the baseline condition of the areas of water adversely affected, it may be possible to extrapolate from data available for other similar areas of water, or from general reference sources. 163. With regard to impairment of natural resource services, account should be taken of such services where it is evident that a damaging occurrence has significantly adversely affected the status of a water body. Where, for example, a damaging occurrence contaminates a protected surface drinking water source in a lake and at the same time significantly adversely affects the ecological or chemical status of the lake, it will come within the scope of water damage under the Environmental Liability Directive. In such a case, provided the damaging occurrence is the same, there need not be an identity between the damage factors causing the impairment of the service and the damage factors significantly affecting the status. If the damaging occurrence consists of a waste-water spillage, for instance, the damage factors relevant for the impairment of the drinking water service may consist in the introduction of micro-organisms into the drinking water source, whereas the damage factors significantly affecting the status may consist in the introduction of nutrients. 164. Furthermore, coverage of impairment of services may not depend on the definition of ‘damage’ alone. Specific objectives set for protected areas featuring in the register of protected areas under the Water Framework may be important. The definitions of good groundwater quantitative status and good groundwater chemical status under the Water Framework Directive include a clear reference to conditions aimed at avoiding failure to achieve the environmental objectives specified under Article 4 of that directive for associated surface waters. These objectives include objectives for protected areas under Article 4(1)(c) of the Water Framework Directive. For groundwater contamination possibly affecting the quality of drinking water, the Groundwater Directive furthermore sets an obligation to assess groundwater chemical status by taking into account the risk from pollutants to the quality of the water abstracted for human consumption (155). In addition, Article 7(3) of the Water Framework Directive provides that Member States shall ensure the necessary protection for the bodies of water used for the abstraction of drinking water, with the aim of avoiding deterioration in their quality in order to reduce the level of purification treatment required in the production of drinking water. In the light of this, taking into account the definition of ‘damage’ and the specific objectives and additional requirements set under the Water Framework Directive and Groundwater Directive for ensuring the good status of ground water bodies used for the abstraction of drinking water, it can be concluded that damaging occurrences resulting in the need for a higher level of purification to comply with the requirements of the Drinking Water Directive, may come within the scope of water damage under the Environmental Liability directive (156). 165. There are nevertheless limits. It is possible, for example, that a damaging occurrence will introduce micro-organisms into an area of surface water. While this may result in the impairment of a drinking water service, the damaging occurrence will fall outside the scope of water damage unless it can be shown that it will also adversely affect a status element. Such introduction of micro-organisms may, however, sometimes come within the scope of land damage (see the section of the present Guidelines devoted to land damage). 166. When estimating and measuring the baseline condition and any changes and impairments, it may be necessary to take account of damage factors that have been causing effects over a very long period. For example, the present-day operator of an occupational activity discharging pollutants into a water body may have been continuously doing so over a period that includes a period pre-dating the 30 April 2007 (see paragraph 24 above). As a result, some damage (in the form of polluted sediments in a river, for instance) may pre-date the implementation date of the Environmental Liability Directive. Subsequent damage will, however, potentially be covered; the operator may be in contravention of an authorisation requirement applicable after 30 April 2007, for instance. In such circumstances, it will be necessary to distinguish the subsequent damage and the earlier damage for purpose of estimating the baseline condition and measuring adverse changes and impairments. The determination of significance 167. For adverse effects to be significant, it is not necessary that they concern all of the status elements that are potentially relevant. It must, however, concern at least one (157). 168. For purposes of preventive measures and measures to immediately manage damage factors, a determination of significance should be made if the assessment results – or ought to result – in a reasonable belief that, without such measures, adverse changes and related impairments of the kind mentioned at paragraph 169 below will result. 169. For purposes of remedial measures, adverse changes will be significant and related impairments will arise if, in respect of the area or areas of the water bodies affected, they result in: — A measurable permanent or interim loss in respect of a status element such that, for that status element, the area of water affected no longer shows the status element characteristics that would have been present in that area before the adverse change or impairment took effect. To take one reference concept and one status element as an example, namely ecological status and fish fauna in respect of a river, adverse effects will be significant if a damaging occurrence such as a toxic spillage entirely wipes out a fish population in the area of water affected; — A measurable deterioration in respect of a status element such that, for that status element, the area of water affected no longer shows the status element characteristics that would have been present in that area before the adverse change or impairment took effect. To take one reference concept and one status element as an example, namely ecological status and fish fauna in respect of a river, adverse effects will be significant if, in the area concerned, the damaging occurrence causes a level of fish mortality to measurably exceed normal levels of fish mortality (without entirely wiping out the fish population). To take the example of another reference concept, namely quantitative status, and another status element, namely the groundwater level in a body of groundwater, adverse effects will be significant if the groundwater level has been or is being measurably reduced to an extent that measurably exceeds the available groundwater resource; — A measurable impairment of natural services linked to the status elements that have suffered loss or deterioration. To take the same example of fish fauna in a river mentioned above, if the river is protected for purposes of recreational fishing, an impairment will arise if the damaging occurrence causes the area of water to have a reduced availability of fish for recreational fishing; — A measurable gap between the time when the adverse effects occur and the time when, for the status elements concerned, the baseline condition is restored. To take the same example of fish fauna in a river, adverse effects will be significant if, notwithstanding the application of restoration measures, the adverse effects will result in a reduced fish population for a period that measurably exceeds periods corresponding to the natural rate of fluctuation of the fish population. Such a time-gap will represent an interim loss of a natural resource and any associated services and require compensatory remediation (158). Such compensatory remediation must be provided in respect of the entire recovery period. That period must therefore be calculated. 170. As already noted, for adverse effects to be significant, it is not necessary that they result in a change of classification for purposes of the Water Framework Directive – although a change to a lower status classification would be an example of a significant adverse effect. By way of analogy, in Case C-461/13, Bund für Umwelt und Naturschutz Deutschland eV v Bundesrepublik Deutschland, which concerned the Water Framework Directive, the Court decided that the concept of ‘deterioration of the status’ of a body of surface water in Article 4(1)(a)(i) of the Water Framework Directive must be interpreted as meaning that there is deterioration as soon as the status of at least one of the quality elements, within the meaning of Annex V to the directive, falls by one class, even if that fall does not result in a fall in classification of the body of surface water as a whole (159). However, if the quality element concerned, within the meaning of that annex, is already in the lowest class, any deterioration of that element constitutes a ‘deterioration of the status’ of a body of surface water, within the meaning of Article 4(1)(a)(i). (160) 171. For ‘water damage’, the Environmental Liability Directive does not provide an equivalent to the criteria of Annex I for assessing and determining the significance of ‘damage to protected species and natural habitats’. Nor does it set out the optional basis found in that annex for treating certain adverse effects as non-significant. However, Annex II.1.3.3. indicates that competent authorities have some margin of discretion when it comes to the extent of the remedial measures that an individual damaging occurrence will require. Exclusion 172. The definition of ‘water damage’ excludes form its scope adverse effects where Article 4(7) of the Water Framework Directive applies. Although the Water Framework Directive aims for all water bodies to achieve good status by 2015 (or 2027 in case time-limited exemptions are applied), and in addition prohibits all further deterioration of water bodies, Art 4(7) allows for new modifications/projects to deteriorate the status of the affected water body, subject to the observance of strict criteria set out therein. As deterioration is in such circumstances acceptable under the Water Framework Directive, the water damage resulting from it would not be covered by the Environmental Liability Directive. However, it can be inferred from Case C-297/19, Naturschutzbund Deutschland — Landesverband Schleswig-Holstein, that this exclusion must be interpreted strictly (161). 173. Article 4(7) of the Water Framework Directive requires several conditions to be met, including the taking of all practical measures to mitigate the adverse impact on the status of the body of water (162). In order to benefit from the Article 4(7) exclusion under the Environmental Liability Directive, an economic operator must therefore comply with any mitigation conditions attaching to an Article 4(7) consent. In addition, even where an Article 4(7) consent is obtained, the Environmental Liability Directive will apply to water damage resulting from a failure to comply with such conditions (163). 174. In Case C-529/15 Folk, the Court considered the application of the Article 4(7) exclusion in the definition of ‘water damage’. It found that ‘in the event that an authorisation has been granted pursuant to national provisions without an examination whether the conditions laid down in Article 4(7)(a) to (d) of Directive 2000/60/EC … have been complied with, a national court is not required to itself verify whether the conditions laid down in that article are satisfied in order to determine whether environmental damage within the meaning of Article 2(1)(b) of Directive 2004/35, as amended by Directive 2009/31, has arisen’. This case further underlines the need for a strict application of the exemption. A national judge will be entitled to deny the exemption if the authorising authority has not demonstrated full compliance with the strict criteria set out in Art 4(7). (B) MARINE WATERS CONCERNED UNDER THE MARINE STRATEGY FRAMEWORK DIRECTIVE Material and geographical scope of marine waters Box 12: Definition of ‘marine waters’ in the Marine Strategy Framework Directive. Article 3(1) of the Marine Strategy Framework Directive provides that ‘marine waters’ means: ‘(a) waters, the seabed and subsoil on the seaward side of the baseline from which the extent of territorial waters is measured extending to the outmost reach of the area where a Member State has and/or exercises jurisdictional rights, in accordance with the Unclos, with the exception of waters adjacent to the countries and territories mentioned in Annex II to the Treaty and the French Overseas Departments and Collectivities; and (b) coastal waters as defined by Directive 2000/60/EC, their seabed and their subsoil, in so far as particular aspects of the environmental status of the marine environment are not already addressed through that Directive or other Community legislation;’ 175. As can be seen, the definition of ‘marine waters’ in the Marine Strategy Framework Directive overlaps with the definition of ‘coastal waters’ in the Water Framework Directive, and the Marine Strategy Framework Directive applies to these in so far as particular aspects of the environmental status of the marine waters are not already addressed through the Water Framework Directive or other Union (164) legislation. Furthermore, there is an overlap with the coverage of ‘territorial waters’ as referred to in the Water Framework Directive. The latter instrument applies within territorial waters whenever the damage concerns chemical status. Reference concept for adverse effects 176. The reference concept for adverse effects on ‘marine waters’ is their ‘environmental status’ as defined in the Marine Strategy Framework Directive – see Box 13 below. As noted above, however, the definition of ‘marine waters’ excludes aspects of environmental status already addressed through the Water Framework Directive or other Union legislation. In terms of other Union legislation, the Nature Directives are especially relevant (see paragraph 95 above). Box 13: Definition of ‘environmental status’ Article 3(4) of the Marine Strategy Framework Directive provides that ‘environmental status’ means: ‘the overall state of the environment in marine waters, taking into account the structure, function and processes of the constituent marine ecosystems together with natural physiographic, geographic, biological, geological and climatic factors, as well as physical, acoustic and chemical conditions, including those resulting from human activities inside or outside the area concerned;’ 177. The Water Framework Directive already addresses the following in respect of coastal waters: concentrations of chemicals; biological elements; hydromorphological elements supporting the biological elements; chemical and physico-chemical elements supporting the biological elements; general elements; and specific pollutants. In addition, the Water Framework Directive addresses chemical concentrations within territorial waters. 178. The Nature Directives already address the marine habitats and marine-dwelling species that lie within their scope. Furthermore, they apply to the marine environment, including in the Exclusive Economic Zone and the Continental Shelf where a Member State exercises jurisdiction (see paragraph 95 above). The assessment of significant adverse effects Circumstances 179. As with the waters concerned under the Water Framework Directive, adverse effects for the purpose of the Environmental Liability Directive will only be relevant if there is a causal link between these effects and the occupational activities described in Annex III of the Environmental Liability Directive. The nature of these activities should indicate the likely nature of the damage factors that might give rise to adverse effects in marine waters and related impairment of services. 180. The following activities under Annex III of the Environmental Liability Directive (165) are the ones most likely to be relevant for damage to marine waters: — Industrial activities under Annex III.1, i.e. operation of installations subject to permit in pursuance of Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control (166). For example, refining of mineral oil and gas in port areas may result in pollution of coastal waters; — Waste management activities under Annex III.2, i.e. collection, transport, recovery and disposal of waste and hazardous waste subject to permit or registration in pursuance of Council Directive 75/442/EEC on waste and Council Directive 91/689/EEC on hazardous waste (167). For example, damage may result from intentional dumping of waste into the sea, or poor management of landfills along the shore (168); — Manufacture, processing, filling, release into the environment under Annex III.7(a) of dangerous substances as defined in Article 2(2) of Council Directive 67/548/EEC of 27 June 1967 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the classification, packaging and labelling of dangerous substances (169). For example, in marine waters under the jurisdiction of a Member State, there may be accidents and spillages into the sea caused by offshore oil and gas operations (i.e. exploration and exploitation activities). It is to be noted that Directive 2013/30/EU of the European Parliament and of the Council of 12 June 2013 on the safety of offshore oil and gas operations and amending Directive 2004/35/EC (170) (‘the Offshore Safety Directive’) includes in addition some specific provisions and definitions, in particular in its Article 2 n. 5, n. 11, n. 15, n. 16 and Article 7. Thus, it is not the ‘operator’ but the ‘licensee’ of an offshore exploration or production activity causing environmental damage who is liable under the Environmental Liability Directive; — Shipping activities under Annex III.8, i.e. transport by sea concerning minimum requirements for vessels bound for or leaving Community ports and carrying dangerous or polluting goods, as defined in Council Directive 93/75/EEC. (171) Transport by sea may involve large quantities of goods being shipped in containers, and container loss at sea may constitute damaging occurrences; — Transboundary shipment of waste within, into or out of the European Union under Annex III.12 (requiring an authorisation or prohibited within the meaning of Council Regulation (EEC) No 259/93 (172)). For example, waste may be lost at sea during the course of a waste shipment. 181. Table 2b ‘Uses and human activities in or affecting the marine environment’ in Commission Directive 2017/845/EU (173) contains relevant indications as to activities potentially causing marine water damage, although it is only those occupational activities which are also found in Annex III of the Environmental Liability Directive that will count for purposes of application of the Environmental Liability Directive. 182. When it comes to damage to marine waters, it is relevant to mention the exceptions set out in Article 4(2) and Article 4(3) of the Environmental Liability Directive. According to Article 4(2), the Environmental Liability Directive does not apply where an imminent threat of damage or actual damage to marine waters arises from an incident in respect of which liability or compensation falls within the scope of any of the international conventions listed in Annex IV (174). According to Article 4(3), the right of the operator to limit his liability in accordance with national legislation implementing certain international conventions (175) remains unaffected Carrying out of the assessment 183. As with damage to protected species and natural habitats, and damage to waters concerned under the Water Framework Directive, the significance of adverse effects should be assessed with reference to the baseline condition. As previously noted, the definition of ‘baseline condition’ covers all natural resources and services. Furthermore, the baseline condition is mentioned in Annex II.1 in the context of both water damage and damage to protected species and natural habitats. 184. It follows from the definition of ‘baseline condition’ that the assessment of significant adverse effects should relate to the area or areas of marine waters adversely affected, and that it should involve a comparison between the condition of that area or those areas before and after the damaging occurrence. The best information available should be used to assess these. 185. Adverse effects involve a negative change in marine waters. There may also be a related impairment of the services that these waters provide by reference to the baseline condition. So far as other natural resource categories are concerned, marine waters provide services to the natural habitats and protected species found in them, such as tidal flows, in the case of certain coastal habitats, or food sources in the case of marine mammals or seabirds. Such services are not confined to marine protected areas (MPAs) such as Natura 2000 sites designated under the Nature Directives, but are especially important for them, since such services play an important role in the fulfilment of site conservation objectives. The notion of services also extends to services to people. For example, marine waters provide fish and other food for the benefit of people. By way of another example, they also provide opportunities for recreational whale watching. 186. Having regard to the reference concept ‘environmental status’, it is appropriate to take into account work provided for under the Marine Strategy Framework Directive as a starting point for estimating the baseline condition and any relevant changes or related impairments. 187. Article 8 of the Marine Strategy Framework Directive provides for an initial assessment of marine waters by Member States for purposes of preparation of marine strategies under that directive. Article 17 of the Marine Strategy Framework Directive provides for a review every six years of such initial assessments. For convenience, such assessments are referred to in these Guidelines as ‘Marine Strategy Framework Directive assessments’ – or ‘MSFD assessments’ – to distinguish them from the assessment of significant adverse effects under the Environmental Liability Directive. 188. The Marine Strategy Framework Directive uses a concept of ‘good environmental status’ – see Box 14 below. Box 14: Definition of ‘good environmental status’ in Article 3(5) of the Marine Strategy Framework Directive: ‘5. ‘good environmental status’ means the environmental status of marine waters where these provide ecologically diverse and dynamic oceans and seas which are clean, healthy and productive within their intrinsic conditions, and the use of the marine environment is at a level that is sustainable, thus safeguarding the potential for uses and activities by current and future generations, i.e.: (a) the structure, functions and processes of the constituent marine ecosystems, together with the associated physiographic, geographic, geological and climatic factors, allow those ecosystems to function fully and to maintain their resilience to human-induced environmental change. Marine species and habitats are protected, human-induced decline of biodiversity is prevented and diverse biological components function in balance; (b) hydro-morphological, physical and chemical properties of the ecosystems, including those properties which result from human activities in the area concerned, support the ecosystems as described above. Anthropogenic inputs of substances and energy, including noise, into the marine environment do not cause pollution effects; Good environmental status shall be determined at the level of the marine region or subregion as referred to in Article 4, on the basis of the qualitative descriptors in Annex I. Adaptive management on the basis of the ecosystem approach shall be applied with the aim of attaining good environmental status;’ 189. By reference to the MSFD initial assessment, Article 9(1) of the Marine Strategy Framework Directive requires Member States to determine, in respect of each marine region or sub-region, a set of characteristics for good environmental status, on the basis of the eleven qualitative descriptors listed in its Annex I. These descriptors are set out in Box 15 below. The marine regions (176) and sub-regions (177) referred to the Marine Strategy Framework Directive are defined in its Article 4(1) and (2). Box 15: Qualitative descriptors for determining good environmental status (1) Biological diversity is maintained. The quality and occurrence of habitats and the distribution and abundance of species are in line with prevailing physiographic, geographic and climatic conditions. (2) Non-indigenous species introduced by human activities are at levels that do not adversely alter the ecosystems. (3) Populations of all commercially exploited fish and shellfish are within safe biological limits, exhibiting a population age and size distribution that is indicative of a healthy stock. (4) All elements of the marine food webs, to the extent that they are known, occur at normal abundance and diversity and levels capable of ensuring the long-term abundance of the species and the retention of their full reproductive capacity. (5) Human-induced eutrophication is minimised, especially adverse effects thereof, such as losses in biodiversity, ecosystem degradation, harmful algae blooms and oxygen deficiency in bottom waters. (6) Sea-floor integrity is at a level that ensures that the structure and functions of the ecosystems are safeguarded and benthic ecosystems, in particular, are not adversely affected. (7) Permanent alteration of hydrographical conditions does not adversely affect marine ecosystems. (8) Concentrations of contaminants are at levels not giving rise to pollution effects. (9) Contaminants in fish and other seafood for human consumption do not exceed levels established by Community legislation or other relevant standards. (10) Properties and quantities of marine litter do not cause harm to the coastal and marine environment. (11) Introduction of energy, including underwater noise, is at levels that do not adversely affect the marine environment. 190. The Commission has adopted a decision (178) on criteria and methodological standards for each of the eleven descriptors for the determination of good environmental status by Member States (179). The following are all relevant to the determination and achievement of good environmental status: ‘criteria elements’ (180); threshold values (181) for each criterion (182); quality levels (183); the extent to which threshold values have been and are to be achieved (184); and indicative lists of characteristics, pressures and impacts (185). The interrelationship between these is also important (186). 191. All of the foregoing creates a backdrop for the assessment of damage to marine waters under the Environmental Liability Directive. 192. Compared to MSFD assessments, the assessment of damage to marine waters under the Environmental Liability Directive requires a more specific procedure, determined by the need to establish the baseline condition of the area of marine waters affected by the damaging occurrence, as well as the changes to the environmental status of the area of marine waters affected and any impairment of the services provided by that area. This being said, MSFD assessments address the environmental status of the wider marine waters in which the marine waters affected by damage are located. In this way, MSFD assessments should provide information relevant for an estimation of the baseline condition. Furthermore, MSFD assessments and the criteria and methodological standards that the Marine Strategy Framework Directive requires to be used in order to determine the characteristics of good environmental status facilitate the assessment of adverse changes and impairments under the Environmental Liability Directive. This is because they enable a deeper understanding of the constituent elements of environmental status that are relevant for such assessment, as well as a deeper understanding of the changes and impairments that are likely to matter. 193. The assessment of an individual damaging occurrence in marine waters should thus draw on the definition of ‘good environmental status’ in Article 3(5) of the Marine Strategy Framework Directive, the above-mentioned qualitative descriptors for determining good environmental status, the criteria and methodological standards to determine the good environmental status according to Decision (EU)2017/848, and the characteristics of good environmental status determined by Member States under Article 9(1) of the Marine Strategy Framework Directive and updated through Article 17 of the latter. The assessment under the Environmental Liability Directive should also draw on the indicative lists of characteristics, pressures and impacts in the Marine Strategy Framework Directive. 194. With reference to ‘environmental status’, all of the qualitative descriptors for determining good environmental status are potentially relevant when estimating the baseline condition and measuring the adverse change or impairment of natural services. Where qualitative descriptors are relevant, account should be taken of the considerations mentioned in previous paragraphs, i.e. criteria, methodological standards, determined good environmental status characteristics and indicative lists of characteristics, pressures and impacts. 195. Damage may need to be ascertained in terms of more than one qualitative descriptor (187). On the other hand, it is sufficient for the purpose of establishing marine water damage if only one of the qualitative descriptors in the area of the damage indicates an adverse effect. 196. In practice, not all of the descriptors are likely to be of equal relevance to an assessment of an instance of damage to marine waters under the Environmental Liability Directive. Having regard to the occupational activities in Annex III of the Environmental Liability Directive and the damage factors likely to be associated with damaging occurrences linked to these, the following descriptors enumerated in Box 15 above are likely to be more relevant than the others: (1), (5), (8), (10), and (11). Determination of significant adverse effects 197. The scale of both the assessment and determination of significant adverse effects on marine waters under the Environmental Liability Directive needs to be distinguished from that of a MFSD assessment. The Environmental Liability Directive draws on the content of the Marine Strategy Framework Directive, and both directives use certain common terms and concepts and pursue comparable objectives. For example, Article 1(2)(a) of the Marine Strategy Framework Directive provides that marine strategies shall be developed and implemented in order to protect and preserve the marine environment, prevent its deterioration or, where practicable, restore marine ecosystems in areas where they have been adversely affected. But the scale at which intervention is envisaged under each directive is not the same. In particular, the scale of the assessment and determination under the Environmental Liability Directive needs to be reduced in order to measure meaningfully the significant effects of a damaging occurrence with regard to the baseline condition, and in this way serve the objectives of the Environmental Liability Directive. 198. Against this background, the significance of the adverse effects on the status of the marine environment is to be determined on the basis of the baseline condition and relevant measurable data on adverse changes and related impairments. For purposes of remedial measures, adverse changes will be significant if, in respect of the area or areas of marine water affected, they result in a measurable permanent or interim loss in respect of the status of a qualitative descriptor in conjunction with the indicative list of characteristics, pressures and impacts, by taking account of ‘criteria elements’ and ‘threshold value’, as provided for under the Marine Strategy Framework Directive such that the area of marine water affected no longer conforms to the environmental status that would have applied to that area before the adverse change took effect. A qualitative descriptor would be for example concentration of hydrocarbons spilled into an area of marine water due to an accident at an offshore oil well, adversely affecting a natural habitat in the area of water concerned. The example applies also to the measurable gap between the time when the adverse effects occur and the time when, for the qualitative descriptor concerned, the baseline condition is restored. 199. For adverse effects to be significant under the Environmental Liability Directive, it is, a fortiori, not necessary that they result in a change of the environmental status for purposes of the Marine Strategy Framework Directive – although a change from good environmental status to an environmental status that is not good would be an example of a significant adverse effect. Furthermore, marine waters, as assessed under a MSFD assessment, need not be in good environmental status: indeed, a MSFD assessment may show that they were already in a status that was not good when a damaging occurrence happened. A further deterioration of that status can also be considered as a significant adverse effect for the purpose of the Environmental Liability Directive. 200. Finally, any assessment and determination of significant adverse effects under the Environmental Liability Directive needs to take into account whether a damaging occurrence affects any marine protected areas (MPAs). This is because stricter biodiversity conservation requirements apply to MPAs than to other marine waters.

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Source: EUR-Lex (Cellar) · retrieved 2026-09-07