Introduction

According to experts, water quality will become the next environmental problem in the Netherlands. Studies reveal that the majority of Dutch waters are affected by severe pollution. Most waters fall under the protection of the EU Water Framework Directive (2000/60/EC) (WFD). This directive establishes concrete objectives for European water bodies, aiming to achieve a good ecological status in all 110,000 notified water bodies.

At the outset, the Netherlands should have already met the objectives of the WFD by 2015. However, it invoked the possibility in the WFD to phase the targets until 2027. At present, it seems very likely that many Dutch water bodies will not be able to meet the targets by 2027 either. Failing to address this issue will result in significant consequences, such as jeopardising drinking water supply. Therefore, the importance of meeting the WFD objectives cannot be understated, and it is crucial to understand the repercussions of failing to meet European obligations.

Obligations under the WFD

Already in 2021, the Minister of Infrastructure and Water Management informed the Dutch parliament that although the water quality in some parts has been improved, the WFD targets cannot be achieved by 2027. One of the main reasons for this is that nitrogen and phosphorus standards in surface waters are frequently exceeded, as indicated by national surveys. The discharge of chemicals, in particular pesticides, medicines, PFAS, and manure, stand out as the most obvious causes of this problem. Since the Netherlands has already used the option in the WFD system to postpone the targets twice, in 2027 the exoneration will end and the required water quality standards should be met. Derogation will only be possible in case of force majeure, projects of higher public interest, or by lowering the targets. Appeals to the first two derogation options are rarely successful, and target lowering should only be considered as a last resort, requiring strong justification. Moreover, the likelihood of the European Commission approving such a target reduction is low, especially considering the critical scrutiny of the state of the environment in the Netherlands. In summary, the Netherlands is compelled to comply with the provisions and objectives of the WFD by 2027, even though it is not yet ready to meet those obligations. This situation carries profound consequences for the Dutch government, decentralised authorities, and, ultimately, for the water quality itself.

Consequences of non-compliance

If the Netherlands fails to implement the necessary measures required by the Directive by 2027, the European Commission can declare the government to be in breach. Subsequently, the Court of Justice of the European Union may impose fines on the Netherlands. This non-compliance also means that local authorities and other entities will be unable to grant permit applications for activities that involve water use or could affect water quality.

The Dutch government has already indicated its intention to review and update irrevocable permits as a short-term solution. However, concrete plans to revoke provincial and local permits, possible under section 6.22 (3)(b) of the Dutch Water Act, have not been established. Revoking permits is a challenging and contentious process, but it can contribute to the reduction of harmful emissions from Dutch industries. Nevertheless, it is essential to recognise that permit revocation alone will not resolve the overall problem. A comprehensive range of measures must be implemented to prevent emissions from all contributors.

Conclusion

The poor quality of Dutch waters is a significant problem, given our dependence on water and its reciprocal dependence on us. If water quality does not improve in the near future, stringent measures from Europe are highly likely in the coming years, especially after 2027. Such measures can have profound implications for both the government and decentralised authorities. In addition, it is already evident that failure to meet the targets will significantly impact the Dutch drinking water supply. Therefore, it is crucial that all contributing factors are addressed comprehensively. Reviewing permits for major polluters should only be a first step.

This blog was written as part of the Sustainability & Law lecture series (Duurzaamheid & Recht collegeserie).