Twenty-eighth Report Adapting Institutions to Climate Change Cm ...

Chapter 3
3.51
district by 22 December 2009. Member States must also prepare programmes of measures to
achieve the objectives, and put in place monitoring arrangements to keep the status of water
bodies under review.
Member States and the European Commission have worked together on a ‘common implementation
strategy’ to ensure broad consistency in the interpretation of the Directive. The common
implementation strategy has produced the guidance River Basin Management in a Changing Climate
published in November 2009. 50 This broad guidance advises Member States on how to prepare
for climate change through the second and third river basin management planning cycles.
Whilst not created specifically with climate change in mind, the Directive demonstrates a
number of institutional innovations that may be helpful in the adaptation challenge, in particular
by pointing towards flexibility, learning and collaboration (discussed further in Chapter 4).
Flexibility can be found most obviously in the relatively open-ended definitions (e.g. of ‘good
ecological status’) and aspirational environmental objectives set by the Directive, and in the
wide range of permissible exceptions and derogations. There is some concern that the reference
point of ‘undisturbed conditions’, against which elements of ‘good status’ are assessed, posits
an unchanging baseline. The language (and philosophy) of the WFD allows for a dynamic
baseline, at least in the sense that what we understand as ‘undisturbed conditions’ are able to
change to reflect the impact of climate change; the flexibility of the WFD depends, however,
on the approach taken in implementation. There are more prescriptive standards in some
specific cases, for example for bathing waters. Given its reliance on fixed quantitative measures
that are difficult to amend, the definition of ‘good chemical status’ may be less amenable to
flexible interpretation.
Flexibility raises questions of legal and political accountability. As with all legislation, the
precise interpretation and requirements for proper implementation of the WFD will only
finally be resolved by judicial interpretation. Legally, this flexible understanding of the WFD
could be challenged in national courts (with reference to the European Court of Justice).
Politically, the ‘who’ and ‘how’ of involvement in decision making will be scrutinised. In
this respect, the role of ‘river basin management planning’ and the ‘common implementation
strategy’ are especially significant. These key institutional innovations enhance the potential
for a collaborative approach to water management, and provide opportunities for learning and
further flexibility.
River basin management plans are drawn up with the involvement of interested parties, and
subject to obligations of public engagement. The European Commission and other Member
States provide peer review of these plans. The production of the plans demands the generation,
collection and publication of information on every river basin district. The process is renewed
every six years, an iterative process allowing the revisiting and reconsideration of policy.
The common implementation strategy is not found in the wording of the WFD, but it is
crucial. Responsibility for implementation of the WFD rests in principle with each Member
State, but the common implementation strategy provides for a joint approach to implementation,
through networks of national regulators.
While the environment agencies themselves can do much to improve water quality, for example
by regulating discharges through consents, for many other issues they have to work in partnership
with others – for example by seeking to influence development control decisions taken by local
authorities where development could have an impact on water quality, or by influencing farming
practice through programmes such as that on catchment sensitive farming (see Box 3D on the
50