CELEX: 52005PC0282
Language: en
Date: 2005-06-22
Title: Amended proposal for a Directive of the European Parliament and of the Council on the protection of groundwater against pollution (presented by the Commission pursuant to Article 250 (2) of the EC Treaty)

COMMISSION OF THE EUROPEAN COMMUNITIES
                                                Brussels, 22.6.2005
                                                COM(2005) 282 final
                                                2003/0210 (COD)
                               Amended proposal for a
   DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
                 on the protection of groundwater against pollution
      (presented by the Commission pursuant to Article 250 (2) of the EC Treaty)
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 ---pagebreak---                                                          2003/0210 (COD)
                                      Amended proposal for a
        DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
                        on the protection of groundwater against pollution
   0n 28 April 2005, the European Parliament voted in first reading on the amendments tabled
   on the Proposal for a Directive of the European Parliament and of the Council on the
   protection of groundwater against pollution (COM(2003)550 final).
   Article 250(2) of the EC Treaty states that as long as the Council has not acted, the
   Commission may alter its proposal at any time during the procedures leading to the adoption
   of a Community act.
   The Commission hereafter gives its opinion on the amendments adopted by the European
   Parliament.
   1.       BACKGROUND
   Transmission of the proposal to the Council and to the European Parliament (COM(2003) 550
   final – 2003/0210(COD)) in accordance with Article 175(1) of the EC Treaty: 19 September
   2003
   Opinion of the European Economic and Social Committee: 31 March 2004
   Opinion of the Committee of the Regions: 12 February 2004.
   2.       OBJECTIVE OF THE COMMISSION PROPOSAL
   Groundwater is an important natural resource, which is mainly used for drinking water,
   industry and agriculture. It has also a high environmental value as it interacts with surface
   waters and wetlands, and thus represents a key part of the water cycle, which should be
   protected.
   Preventing groundwater pollution has been the subject of Community legislation since 1980
   and, more recently, through the Water Framework Directive, which was adopted in 2000.
   However, clear criteria regarding the definition of groundwater environmental quality
   objectives, and in particular good chemical status, are lacking. In addition, specific measures
   to prevent and control groundwater pollution are needed. This was recognised when the
   Water Framework Directive was agreed to the extent that Article 17 of that Directive
   requested the Commission to come forward with a proposal to address these needs.
   Against that background, and after extensive consultation with stakeholders, the Commission
   published a proposal for a new directive concerning the protection of groundwater against
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 ---pagebreak---    pollution in September 2003, under reference COM(2003)550. This proposal contains the
   following main elements:
   • a compliance regime for assessing good chemical status for groundwater for a limited
       number of pollutants where existing Community standards prevail;
   • criteria for assessing the chemical status of groundwater based on environmental quality
       standards, which have to be established by Member States at the appropriate level
       (national, river basin or groundwater body), depending on the variations of natural
       groundwater conditions, identified pressures and related chemical substances;
   • criteria for identifying significant upward trends in pollutant concentrations in groundwater
       and defining starting points for reversing these trends;
   • measures for preventing or limiting direct – and particularly indirect – inputs of pollutants
       into groundwater.
   The proposal provides clear specifications that will ensure that the environmental objectives
   of the Water Framework Directive will be achieved with respect to groundwater. Equally, the
   proposal achieves the right balance between issues that need to be addressed at Community
   level and those that are best left to Member States.
   3.        COMMISSION      OPINION ON THE AMENDMENTS ADOPTED BY THE                   EUROPEAN
             PARLIAMENT
   On 28 April 2005, the European Parliament adopted 89 amendments out of the 123 that were
   tabled. Eight amendments – numbers 1, 15, 18, 29, 38, 58, 71 and 88 – were subject to split
   votes. In amendment 58, only the first part was supported by Parliamentarians. The other
   amendments were untouched by the split vote.
   The Commission finds that a large number of the Parliament’s amendments are acceptable in
   full, in principle or in part, as they clarify and improve upon the Commission proposal,
   particularly regarding the compliance regime related to the groundwater good chemical status.
   The Commission’s detailed position with regard to the amendments of the European
   Parliament is as follows:
   3.1.      Amendments accepted fully by the Commission
   Amendment 1 modifies the title of the proposal, clarifying that the proposal deals with
   chemical pollution of groundwater only. This is in line with the objectives of the Water
   Framework Directive 2000/60/EC (WFD).
   Amendment 5 clarifies the text of Recital 3, which is acceptable as it is consistent with the no-
   deterioration clause of the WFD.
   The new recital proposed by Amendment 9 referring to the impact of groundwater quality
   standards on the environmental protection level and on the functioning of the internal market
   is acceptable.
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 ---pagebreak---    Amendment 13 inserts a new recital on groundwater storage and recovery which clarifies
   WFD provisions and is, therefore, fully acceptable. Another new recital proposed by
   Amendment 14 on comparability of monitoring results is also acceptable and in line with
   Amendment 41 and Annex V of the WFD.
   The new definition on background concentration introduced by Amendment 22 is acceptable
   and in line with Amendment 71.
   Amendment 25 suggests additions of new texts in the heading of Article 3, which is
   acceptable (criteria indeed concern both the assessment and classification of the groundwater
   chemical status).
   Amendment 91 stipulates that when the natural levels of pollutants found in a groundwater
   body or a group of groundwater bodies are above the quality standards defined in Annexes I
   or II (i.e. standards established at national level) the background levels should be taken into
   account to establish the limit between poor and good groundwater chemical status. This is
   acceptable to the Commission.
   Amendment 29 (linked to Amendment 28) is acceptable, as it improves the legal clarity
   regarding the assessment of the chemical status of groundwater.
   Amendment 35 which deletes Article 4, paragraph 3, is acceptable, considering that
   Amendment 36 takes over this provision (see comment below).
   On Article 5, Amendment 37 clarifies that increases in concentrations resulting from natural,
   geological processes are not addressed here, which improves the text of the proposal. The
   proposed changes in Amendment 38 are acceptable and consistent with the acceptance of
   Amendment 24. Finally, the reference to specific trend assessment and reversal for point
   sources of pollution as suggested in Amendment 39 is also acceptable.
   The change of title of Article 6 suggested by Amendment 42 is acceptable, as it is consistent
   with WFD provisions (Article 4.1(b)(i)).
   Changing “to” to “and” in Article 8 as proposed by Amendment 55 is acceptable. Both
   annexes may indeed be subject to adaptations to scientific and technical progress.
   Regarding Annex I, changes to the main title and to the title of Part B as proposed by
   Amendments 57 and 59 are acceptable.
   Amendment 60 is acceptable as the reference to the provisions of Directive 96/676/EEC
   (Nitrates Directive) is sufficient.
   The 0.5 µg/l pesticide standard proposed by Amendment 63 is derived from the Directive
   91/414/EEC and can be accepted. Amendment 64 is also acceptable since it is fully in line
   with WFD provisions.
   The distinction of synthetic substances and of indicators (instead of pollutants) as proposed by
   Amendment 90 is acceptable to the Commission.
   Consideration of groundwater use for human consumption is acceptable in the context of
   Amendment 68. Deletion of the paragraph 2.3 of Part B of Annex III as proposed by
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 ---pagebreak---    Amendment 72 is acceptable on the basis that costs should be taken into account when
   measures are taken rather than when establishing groundwater quality standards.
   Concerning Annex IV, Amendment 73 which links Article 5 and Annex IV and that part of
   Amendment 74 dealing with the evaluation of measurements are acceptable. Amendment 75
   regarding statistical aspects of trends in groundwater quality is also acceptable.
   Amendment 81 which deals with the risks to be assessed when considering trend reversals is
   also acceptable. Finally, Amendments 82 and 87 improve the clarity of the text concerning
   trend reversals and are also acceptable.
   3.2.      Amendments accepted in part or in principle by the Commission
   Amendment 2 modifies the text of the Recital 1 and introduces a new sentence. The first part
   of this amendment is not acceptable because it is not consistent with the principles of
   groundwater protection set out in the Water Framework Directive, which foresees
   groundwater protection as part of the broader protection of associated aquatic and terrestrial
   ecosystems. The second part of this amendment is in line with WFD environmental objectives
   and its Article 7 and is, therefore, acceptable. The text would then read:
   (1) Groundwater is a valuable natural resource which must be protected from chemical
   pollution. This is particularly important for groundwater dependent ecosystems and for the
   use of groundwater in water supply for human consumption.
   The term “indicative” is included in Recital 4 by Amendment 6. However, the provisions in
   the WFD for groundwater protection are not indicative. Indeed they are quite extensive and
   detailed (definitions, level of protection, characterisation, protected areas, protection of
   drinking water sources, monitoring, programme of measures). The amendment should then
   replace “indicative” by “general”.
   The reference introduced in a new recital by Amendment 8 to farming/forestry practices is
   acceptable in principle. Indeed, the cross reference to the CAP and rural development plans is
   understandable as farmers may have to change farming practice, leave wider buffer strips, re-
   instate flood plains, etc. The word “elaboration” is however preferred over “development”.
   The text should then read:
   (5a) The protection of groundwater may in some areas require a change in
   farming/forestry practices, which could entail a loss of income. This issue should be taken
   into account in the elaboration of the rural development plans under the reformed CAP.
   A new recital is introduced by Amendment 12, making reference to scientific knowledge
   concerning problematic substances such as endocrine active substances. This is a constructive
   remark which is accepted in principle. A suggested redrafting reads as follows:
   (7a) There must be clarification as to the inputs of which pollutants must be prevented and
   limited, with particular regard to scientific knowledge concerning hazardous substances
   such as endocrine active substances.
   Amendment 15 inserts criteria related to the assessment of groundwater reserves in Article 1
   and a reference to Article 4 of the WFD, which are acceptable in part. In particular, item (b)
   related to groundwater quantitative status is not acceptable for the reasons expressed above
   (Amendments 7 and 80). The last sentence of Amendment 15 is acceptable with minor
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 ---pagebreak---    changes. However, item (c) is redundant with this last sentence and should be deleted. The
   text should then read:
   This Directive establishes specific measures as set out in Article 17(1) and (2) of Directive
   2000/60/EC in order to prevent and control chemical groundwater pollution. These
   measures include in particular:
   a)      Criteria for the assessment of good groundwater chemical status; and
   b)      Criteria for the identification and reversal of significant and sustained upward
       trends and for the definition of starting points for trend reversals.
   This Directive seeks to complement the provisions of Article 4(1)(b)(i) of Directive
   2000/60/EC to prevent or limit inputs of pollutants into groundwater and the deterioration
   of the status of all bodies of groundwater.
   Amendment 17 is acceptable in principle. The term “threshold values” intended to distinguish
   between environmental quality standards (EQS) for groundwater established at EU level as
   opposed to EQS established at MS level. As long as there is a clear distinction between these
   two types of EQS, the Commission would not insist on maintaining this term. The following
   definition could clarify the scope and role of groundwater quality standards:
   1. ‘Groundwater quality standard’ means an environmental quality standard for
   groundwater established at Community level or set by Member States in accordance with
   Article 3, expressed as the concentration of a particular pollutant, group of pollutants or
   indicator of pollution in groundwater, which should not be exceeded in order to protect
   human health and the environment.
   Amendment 19 is acceptable in principle. However, it is not compatible with amendment 20.
   The following definition, incorporating relevant elements from both amendments would be
   preferred:
   3. ‘input of pollutant into groundwater’ means the direct or indirect introduction, as a
   result of human activity, of pollutants into groundwater.
   Amendment 24 is acceptable in principle. The amendment may need to be changed by
   indicating the reference year 2007 instead of “2007 and 2008”.
   The modification of the introductory part of Article 3 by Amendment 26 is acceptable in
   principle. However, the text should be redrafted to reflect the fact that the characterisation
   under Article 5 of Directive 2000/06/EC has already been carried out. The reference to
   sections 2.4.5 and 2.5 makes an explicit link to Article 8 of the Directive 2000/60/EC, which
   should hence not be repeated here. The alternative text is proposed:
   1. For the purposes of the assessment of the chemical status of a groundwater body, or
   group of bodies of groundwater pursuant to sections 2.4.5 and 2.5 of Annex V of the
   Directive 2000/60/EC, Member States shall use the following criteria:
   Amendment 28 which clarifies arrangements in the compliance regime in the new paragraph
   1b of Article 3 is acceptable in principle. However the formulation of the proposed
   amendment is problematic as in some technical details it is contrary to the requirements of the
   Water Framework Directive. Furthermore, the formulation repeats in a different manner what
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 ---pagebreak---    is proposed under Amendment 29. To improve the logic of the sequence, it is suggested that
   Article 3 provides only criteria for assessing groundwater chemical status, clarifying the links
   among groundwater chemical status and groundwater quality standards (including those to be
   established by Member States), while considering compliance aspects in Article 4. The text
   proposed under Amendment 28 will then be covered in a revised Article 4 (focusing on
   compliance aspects) and the related annex.
   Amendment 30 is linked to the change of the definition suggested by Amendment 17, which
   is acceptable in principle on the basis that the definition makes it clear that the standards may
   be established at European or national level or at the level of river basin or groundwater body.
   The same applies to Amendments 31 (Article 4, paragraph 1), 34 (Article 4, paragraph 2), 69,
   70 and 71 (Annex I, Part B), which are acceptable in principle. This is also linked to
   Amendment 32 which clarifies links among quality standards and levels of substances
   naturally present in water and Amendment 33 which deals with the requirement to coordinate
   the establishment of quality standards in international river basin districts. As suggested
   above, Article 3 would deal with Criteria for assessing groundwater chemical status and
   would cover the changes proposed under Amendments 31, 32, 33, 34 and 36, whereas Article
   4 could solely focus on a Procedure for assessing groundwater chemical status. This would
   also allow to simplify the title which is considered to be too long in Amendment 30.
   The insertion of a new paragraph on measurements methods (Amendment 41) is acceptable in
   principle since it will promote consistency with regard to measurement methods; however, the
   drafting needs to be reviewed as it is too extensive and unbalances the text. The alternative
   text is suggested:
   Article 5a – Measurement methods
   1. Member States shall identify measurement methods for the substances, or group of
       substances, including relevant CEN or national standardised methods, for which
       Community-wide or national groundwater quality standards are set in accordance with
       Article 3, and shall report them to the Commission along with the report of the
       monitoring programme pursuant to Article 8 of the Directive 2000/60/EC.
   2. The Commission shall, in accordance with Article 8(3) and Article 21 of Directive
       2000/60/EC, establish method performance and quality control criteria for each of the
       measurement methods reported under paragraph 1 in order to provide the basis for
       demonstrating the comparability of groundwater monitoring results, and shall verify
       that monitoring data fulfil with these criteria upon reporting pursuant to Article 13 of
       the Directive 2000/60/EC.
   Following Article 6, the idea suggested in Amendment 46 of including monitoring
   requirements associated with measures concerning discharges is acceptable in principle, since
   these requirements are not covered by the WFD. It would, however, be better to simply
   indicate that Measures pursuant to paragraph 2 shall be monitored in accordance with the
   provisions laid down in Article 11(5) of the Directive 2000/60/EC.
   Amendment 47 referring to best environmental practice and best available technology is also
   acceptable in principle, but the precise drafting will need to be reviewed since this reference
   would restrict activities to those defined under the IPPC Directive. An alternative text could
   be: The measures required by this Article shall take account of established best practices,
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 ---pagebreak---    including Best Environmental Practice and Best Available Techniques specified in relevant
   Community legislation.
   Amendment 48 is also acceptable in principle but would require redrafting. An alternative text
   could be: Where inputs of pollutants are permitted under the conditions specified in
   paragraph (b) of this paragraph, diffuse sources of pollution having an impact on the
   groundwater chemical status shall be taken into account whenever technically possible.
   The introduction of a margin of flexibility into the compliance regime as proposed by
   Amendment 58 is also acceptable in principle. This text, however, repeats provisions already
   covered in a different wording by Amendment 29. The only missing element concerns the
   sentence “the relevant tests shall be carried out in the upper aquifer”, which is a useful
   suggestion which should however be included in another Article or Annex linked to
   compliance.
   With respect to Annex II, the principle of a common procedure for the establishment of
   groundwater quality standards suggested by Amendment 65 is accepted in principle although
   the proposed methodology warrants further elaboration, which was the intention of the
   original Commission proposal. Furthermore, the text repeats provisions proposed under
   Amendment 29. It is, therefore, suggested to redraft this part (becoming Part A of Annex II)
   using the title “Guidelines for the establishment of groundwater quality standards by
   Member States in accordance with Article 3”, including the text proposed under Amendment
   71 which should be made in line with Amendment 22 (“background concentration”) and
   changing the mention of “best professional estimate” into a sentence which is less prone to
   possible different interpretations.
   On Part A of Annex III, Amendment 89 proposes a rearrangement of the original table
   concerning substances which may occur both naturally and as a result of pollution. This is
   acceptable in principle. However, in order to keep the sequence proposed for Articles 3 and 4,
   it is suggested to move this table under a part B of Annex II (thus following the above
   guidelines), and to cover all aspects related to compliance in a revised Annex III.
   Furthermore, the column “comment” could simply be integrated in the title of Part A.1 as
   follows (including the footnote):
    PART A.1: MINIMUM LIST OF SUBSTANCES OR IONS OCCURRING NATURALLY AND AS A RESULT
              OF HUMAN ACTIVITIES, FOR WHICH MEMBER STATES ARE REQUIRED TO ESTABLISH
                                                                                                         1
                      GROUNDWATER QUALITY STANDARDS IN ACCORDANCE WITH ARTICLE3
                               Substance or ion
                               Ammonium
                               Arsenic
                               Cadmium
   1
           This list should be complemented by Member States for all pollutants which have been identified to
           characterise bodies of groundwater at being at risk following the analysis carried out under Article 5 of
           Directive 2000/60/EC.
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 ---pagebreak---                            Lead
                           Mercury
                           Trichloroethylene
                           Tetrachloroethylene
      Regarding Part B of Annex III, Amendment 66 is acceptable in principle as it is in line
      with other related amendments concerning the establishment of groundwater quality
      standards by Member States. In line with the above comments, however, it is suggested
      that the information to be provided by Member States originally under this Annex is now
      moved to Annex II, Part C, to improve the sequence “criteria for the establishment of
      groundwater quality standards” (now covered by Article 3 and Annex II) followed by
      “assessment of groundwater chemical status” (now covered by Article 4 and Annex III).
      Amendment 67 is also acceptable in principle. For consistency, the added text should be
      complemented by “river basin or groundwater body level” and moved to Annex II, Part C,
      as suggested above.
      Amendments 76, 77, 78, 83, 84 and 85 concerning time periods for trend assessment and
      reversal are acceptable in principle. However, the time lengths proposed in the original
      annex were based on the outcome of discussions with groundwater technical experts from
      the Member States, which resulted in a Technical Report developed under the Common
      Implementation Strategy of the Water Framework Directive. Changing arbitrarily these
      time periods might be technically problematic. It is therefore suggested to simplify this
      annex by providing general binding rules but without including numerical values, taking
      into account the suggestion made by Amendment 79 concerning starting points for the
      assessment of trends in groundwater quality.
   3.3.      Amendments not accepted by the Commission
   The new recital introduced by Amendment 3 is not acceptable because not all groundwater
   bodies are used for the production of drinking water and to require all groundwater bodies to
   respect quality standards which assume that they will be used for drinking water is unrealistic.
   Amendment 95 concerns research and use of research outputs. The promotion of new research
   should be achieved through the 6th and 7th Research Framework Programmes not in the
   groundwater directive. Therefore, this amendment is not acceptable. For the same reason,
   Amendment 100 which introduces a provision in Article 6 (new paragraph (c)) on research
   and dissemination is also not acceptable.
   Amendment 4 inserts a new recital which is not acceptable since the Water Framework
   Directive provides for different levels of protection for groundwater and surface waters.
   While groundwater chemical status is indeed defined in relation to its impact on associated
   surface waters, this amendment is therefore not in line with the WFD.
   Amendment 7 introduces a new recital related to groundwater quantitative status. This is not
   acceptable since the provisions concerning quantitative assessments are already covered by
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 ---pagebreak---    the WFD where there is an obligation to ensure a balance between abstraction and renewal of
   groundwater bodies and associated requirements for monitoring and assessment. The
   amendment is therefore redundant. The same reasoning applies to Amendment 80 concerning
   a new provision in Annex IV.
   The change to Recital 6 proposed by Amendment 10 on the identification of significant
   downward trends is not acceptable. This amendment concerns groundwater quantitative status
   which is already adequately covered by WFD and it is therefore redundant.
   Amendment 11 inserts a new sentence at the end of Recital 7, specifying that relevant
   provisions of the Directive 80/68/EEC should be incorporated into this directive, which is not
   acceptable. The text proposed by the Commission is indeed fully compatible with the
   directive 80/68/EEC, but it achieves the objectives in a different manner. The incorporation of
   provisions of the 1980s directive into a text drafted in 2004 is not the best way to draft
   legislation and is inappropriate.
   The insertion of a new paragraph 2a in Article 1 by Amendment 16 duplicates WFD
   provisions and is therefore redundant. The characterisation of groundwater bodies is to be
   carried out by Member States under Article 5 of the WFD.
   The Commission cannot accept Amendments 18, 21, and 23. The introduction of the term
   “environmentally” significant (Amendment 18) would leave open the possibility of Member
   States interpreting what is significant in very different ways. Further, the definition of
   deterioration (Amendment 21) is already included in the Water Framework Directive (Article
   4). Finally, Amendment 23 introduces a definition of historically contaminated sites. While
   the Commission recognises that such sites are problematic, their consideration in the present
   Proposal is outside the scope of the mandate provided for by Article 17 of the WFD. This is
   also why the Commission cannot accept Amendment 93 introducing a provision concerning
   rehabilitation of sites suffering long-standing pollution (Article 3, new paragraphs (c) and (d))
   and Amendment 49 referring to direct and indirect discharges from historical contaminated
   sites (Article 6, new paragraph 2d).
   The new paragraph 1a introduced by Amendment 27 is not consistent with the definition of
   the groundwater good chemical status as set out in table 2.3.2 of Annex V of the WFD.
   Groundwater chemical status is related to its impact on associated surface water. It is
   therefore inconsistent to have groundwater environmental quality standards based on human
   and eco-toxicological criteria of pollutants.
   The way the programme of measures will be operated is left to the Member States’ decision,
   and it is not appropriate to indicate a preference to the nature of the measures to be taken as
   suggested by Amendment 40. Thus the amendment is not acceptable.
   Amendment 88 is not acceptable. In particular, item (c) is redundant with the provisions of
   Article 11(3)(f) of the Water Framework Directive and is already covered by Amendment 13.
    Amendment 50 repeats the requirement of item 7.6 of Annex VII.A of the WFD. This is also
   the case of Amendment 51 which repeats what is already stated by the existing Article. The
   “Polluter pays principle” principle is already covered by Article 9 of the WFD, which makes
   Amendment 52 redundant. Finally, while it is recognised that recommendations should be
   issued regarding protected areas, it would not be reasonable to consider all possible cases in
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 ---pagebreak---    the present directive as suggested by Amendment 54 concerning spas and medicinal water
   sources. Thus the amendment is not acceptable.
   The new paragraph introduced by Amendment 56 is not acceptable, considering that the
   collection of data under this directive is already regulated by the WFD.
   Amendment 62 is not acceptable as the provisions of Directive 91/414/EEC (Plant Protection
   Products Directive) remain in force.
   3.4.     Amended proposal
   Having regard to Article 250(2) of the EC Treaty, the Commission modifies its proposal as
   indicated above.
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