EU SPECIFIC WATER LEGISLATIONS

The designation of vulnerable zones (article 3)

Member States must designate as “vulnerable zones” all known areas of land in their territories which drain into waters in which the nitrate concentration exceeds certain thresholds and those which could be affected by pollution (Articles 3 and 6), whether or not it is possible to remedy the pollution at source and irrespective of the importance of the abstraction of water involved. That obligation gave rise to a substantial line of litigation. Member States were to make such a designation within a two-year period following the Directive (Article 3(2)), and then to review, and if necessary revise or add to the designation of vulnerable zones “as appropriate, and at last every four years, to take into account changes and factors unforeseen at the time of the previous designation” (Article 3(4)). In both situations, they had to notify the Commission within six months. For instance, France did not even attempt to deny it was in breach of that obligation in 2013, for it had failed to draw the consequences of its own 2007 review by designating an additional ten areas . Instead of designating vulnerable zones, Member States may apply action programmes throughout their territory. This is what 13 Member States have done: Austria, Denmark, Finland, Germany, Ireland, Lithuania, Luxembourg, Malta, The Netherlands, Poland, Romania, Slovenia and Belgium (limited to Flanders).

Member States must thus identify surface freshwaters which contain or could contain more than the applicable maximum concentration of nitrates, as well as groundwater which contains/could contain more than 50 mg/l nitrates, and natural freshwater lakes, other freshwater bodies, estuaries, coastal waters and marine waters that are found to be eutrophic or may become eutrophic in the near future; in all such cases, that requirement applies if there is a risk of eutrophication in the near future if the action programmes required by the directive are not implemented (Annex I). For instance, Member States are required to identify eutrophic freshwaters or freshwaters at risk of eutrophication in the near future if the action programmes by the directive are not implemented . As the CJEU pointed out in Case C-543/16 “waters must be regarded as affected by pollution not only where groundwaters contains of more than 50 milligrams per litre, but also, in particular when natural freshwater lakes, other bodies of freshwater, estuaries, coastal and marine waters have undergone eutrophication” .
While the Member States have been granted “wide discretion” in the identification of vulnerable waters because of the complexity of the assessments which they are called upon to carry out in that context, they are obliged to respect the objectives of the directive, “namely, the reduction of water pollution caused by nitrates from agricultural sources”, so that “the exercise of that discretion may not result (…) in a large portion of nitrogen-bearing waters falling outside the scope of the Directive” .
Member States are not required to determine the proportion of the pollution which is attributable to nitrates of agricultural origin nor to establish that the cause of such pollution is exclusively agricultural. They must take into account not only pollution of agricultural sources, but also that of other sources, so as to determine a maximum level of pollution authorised for waters destined for human consumption . In other words, the mere fact that domestic or industrial discharges also contribute to the concentration of nitrates in superficial waters does not suffice as such to rule out as a possibility the application of Directive 91/676 . However, the directive does apply only to the extent that discharges of agricultural origin contribute to the pollution in a significant way, even though EU law does not provide a practical threshold. In addition, the above considerations do not imply that farmers should bear the costs of eliminating pollution to which they have not contributed . In 2005, the Court held that “such a contribution is significant where agriculture contribute for instance, 17% of the total nitrogen in a specific basin” .
Mere powers given to an administrative authority to identify waters affected or potentially affected by pollution and to designate vulnerable zones is not sufficient for transposition and implementation of the directive: “the identification of all waters that are affected by pollution or could be so affected (...), first, and, secondly, the subsequent designation, on the basis of the waters thus identified, of vulnerable zones, constitute distinct obligations which must be fulfilled specifically and separately” .

As reported by the Commission in 2021, the total area of Vulnerable Zones has increased by 14,4% compared to the last report on the implementation of the directive. However, the Commission underlines that a high number of hotspots of water pollution by nitrates from agricultural source are not included in vulnerable zones fro example in Bulgaria, Cyprus, Spain, Estonia, Latvia and Portugal. It concludes that “all Member States urgently (..) ensure an appropriate and effective designation of Nitrogen Vulnerable Zone”.