Thesis-Anne-Vos-Masters-SBR-and-EU-Law-3

3.4 Water Framework Directive
On 23 October 2000, the Directive (2000/60/EC) of the European Parliament and of the Council
establishing a framework for the Community action in the field of water policy - in short: the Water
Framework Directive (WFD) - was adopted. The WFD has integrated several water directives. The
WFD contains an integrated river basin approach. It aims at establishing an integral approach with
other policies and (water) directives. This is especially visible with the integral river basin
management plan. 107 The objectives of the WFD are very broad, whereby other policies can be
included. The quality of surface water and groundwater receive special attention. Therefore, two
separate directives are adopted: the Groundwater Directive (2006/118/EC), which has been
developed in response to the requirements of Article 17 WFD, and the Surface Water Directive
(2008/105/EC). There is also a separate framework directive for the Marine Strategy (2008/56/EC),
but this directive is not of much relevance for shale gas activities.
Relevance for shale gas activities
There is much debate on this Directive and the application thereof on shale gas activities,
especially with regard to Article 11(3)(j). 108 Article 11 concerns the establishment of a programme
of measures which every MS shall ensure for each river basin district. Each programme of
measures shall include the basic measures, which are the minimum requirements to be complied
with and which shall consist of inter alia Article 11(3)(j): a prohibition of direct discharges of
pollutants (any substance liable to cause pollution) into groundwater subject to the provisions
provided therein. MS may authorise reinjection into the same aquifer of water used for geothermal
purposes. They may also authorise, specifying the conditions for inter alia:
injection of water containing substances resulting from the operations for exploration and extraction
of hydrocarbons or mining activities, and injection of water for technical reasons, into geological
formations from which hydrocarbons or other substances have been extracted or into geological
formations which for natural reasons are permanently unsuitable for other purposes, (…) provided
such discharges do not compromise the achievement of the environmental objectives established for
that body of groundwater.
According to the Legal Assessment, conducted by the European Commission in 2011, Article
11(3)(j) does not apply to shale gas activities since it does not allow flow-back water to be injected
into geological formations. 109 Therefore, the Commission argues, the Mining Waste Directive
applies here. In a latter working document of the Commission (of January 2014), it seems that the
Commission finds the WFD applicable after all. Here, the Commission states that the identification
of whether shale gas activities are a direct discharge of pollutant into groundwater would require a
'site-specific hydrogeological risk assessment', for which no criteria are made available within the
WFD. Therefore, this assessment depends on the discretion of the MS. This could lead to adverse
consequences for groundwater, which would compromise the achievement of the environmental
objectives established in the WFD. Moreover, there is discussion on the difference between direct
and indirect discharge of pollutants into the groundwater with regard to hydraulic fracturing. The
Commission gives as an example for this confusion: "whether a possible groundwater
contamination following an unexpected extension of the fractures beyond the shale formation
would qualify as direct or indirect discharge of pollutants." 110 Another point referred to by the
Commission is that the WFD, concerning the waters used for the abstraction of drinking water, only
requires MS to identify the bodies of water used for this abstraction within each river basin
district. 111 Hence, monitoring at the level of the project site is not necessary. This would make it
107
Havekes & Van Rijswick (2012), pp. 101-107.
108
Commission Staff Working Document Impact Assessment (2014), part 4/4, p. 32.
109
Legal Assessment (2012), p. 7.
110
Commission Staff Working Document Impact Assessment (2014), part 4/4, p. 32.
111
Article 7 WFD.
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