The water test a new project has to pass in Europe

European water law forbids deterioration, and a 2015 judgment defined deterioration narrowly enough that most new projects need the exception — which has four conditions, all of which must hold.

Pending review

A plain instrument cabinet on a plinth beside a slow clear river, a stilling well pipe running down the bank and a plain gauge post in the shallows. — Illustrative artwork: a river monitoring station of the kind used in water quality regulation. Not a facility, equipment or material connected to this project. · Illustration · Osmond Hub

The short version

The European rule on water is not a limit on how much a project may take. It is a prohibition on making a body of water worse, and since a 2015 judgment, "worse" means a fall of one class in any single quality element — not in the water body's overall classification. A project that would cause that must be refused unless it satisfies the exception in Article 4(7) of the Water Framework Directive, which imposes four conditions that must all be met, including that the reasons be set out in the river basin management plan. That is the test a new operation in Europe is actually assessed against.

Two obligations, and the one that bites

The directive gives member states two duties for surface water: prevent deterioration of status, and achieve good status by the deadlines set. The second is a programme obligation running over planning cycles; the first is the one a specific project meets, because it applies at the moment of authorisation. And it is consequential because it does not measure the water body as a whole.

What the 2015 judgment settled

In its judgment of 1 July 2015 in Case C-461/13, the Court of Justice held that there is a deterioration of the status of a body of surface water as "soon as the status of at least one of the quality elements, within the meaning of Annex V to the directive, falls by one class, even if that fall does not result in a fall in classification of the body of surface water as a whole"(opens in a new tab). And it closed the obvious escape route: if "the quality element concerned, within the meaning of that annex, is already in the lowest class, any deterioration of that element constitutes a 'deterioration of the status' of a body of surface water, within the meaning of Article 4(1)(a)(i)"(opens in a new tab).

Both halves matter. A project cannot rely on an overall status that stays unchanged because one element's decline is offset by another's health; and already-degraded water is not free ground but the least forgiving, since any worsening of an element already at the bottom counts.

Deterioration is measured element by element. A water body can stay in the same overall class and still have deteriorated in law.

The exception, and its four conditions

Because that threshold is low, the exception is where large projects are decided. Article 4(7) provides that member states will "not be in breach of this Directive"(opens in a new tab) where failure to achieve good status or to prevent deterioration is "the result of new modifications to the physical characteristics of a surface water body or alterations to the level of bodies of groundwater"(opens in a new tab), or where failure to prevent deterioration from high to good status is the "result of new sustainable human development activities"(opens in a new tab) — and, in the directive's own words, "all the following conditions are met"(opens in a new tab):

(a) all "practicable steps are taken to mitigate the adverse impact on the status of the body of water"(opens in a new tab);

(b) the "reasons for those modifications or alterations are specifically set out and explained in the river basin management plan required under Article 13 and the objectives are reviewed every six years"(opens in a new tab);

(c) the "reasons for those modifications or alterations are of overriding public interest and/or the benefits to the environment and to society of achieving the objectives set out in paragraph 1 are outweighed by the benefits of the new modifications or alterations to human health, to the maintenance of human safety or to sustainable development"(opens in a new tab); and

(d) the "beneficial objectives served by those modifications or alterations of the water body cannot for reasons of technical feasibility or disproportionate cost be achieved by other means, which are a significantly better environmental option"(opens in a new tab).

Condition (b) surprises people, because it is procedural and slow. The reasons have to appear in the river basin management plan — a public document adopted on a six-year cycle by a basin authority, not by the permitting body and not on the project's schedule.

Condition (d) decides engineering. It asks not whether the water use is reasonable but whether the objectives could be achieved another way that is a significantly better environmental option, subject to feasibility and cost. That is where a dry or reduced-water route stops being a preference and becomes a legal argument — or, if a credible alternative existed and was not adopted, the reason an authorisation fails.

Article 4(8) then fences the exception in: applying it must "not permanently exclude or compromise the achievement of the objectives of this Directive in other bodies of water within the same river basin district"(opens in a new tab). A derogation cannot be paid for by another water body upstream or down.

Where critical minerals policy touches the test

The Critical Raw Materials Act does not create a mining exemption from water law. What it does is address one limb of the test directly. Strategic Projects, it says, shall "be considered to be of public interest or serving public health and safety, and may be considered to have an overriding public interest provided that all the conditions set out in those Union legislative acts are fulfilled"(opens in a new tab) — and the provision names Article 4(7) of the Water Framework Directive among the obligations it is speaking to.

Read carefully, that changes the burden on condition (c) and leaves (a), (b) and (d) where they were; the proviso "provided that all the conditions set out in those Union legislative acts are fulfilled" says as much. A designated project still has to take all practicable mitigation steps, still needs its reasons in the river basin management plan, and still has to show no significantly better environmental option existed. That reading is this hub's own.

What this means in a water-scarce region

None of the above is about volume. A project can be modest in abstraction and fail the deterioration test if it worsens a single quality element, and substantial in abstraction and pass if it does not; concentration, temperature, hydrology and groundwater level are all in scope alongside quantity. So where water is already contested, the legal question a minerals project faces is rarely "is there enough" — it is whether the element it would touch can be shown not to fall by one class, and if it would, whether four conditions written for river engineering can be satisfied by a mine.

Related

Environmental Management — the wider set of site controls this
Regulation — the Spanish and European permitting architecture these
Government Policy — what a Strategic Project designation does, and
Ore Processing — the wet separation route the water serves,

Sources

PRIMARYDirective 2000/60/EC establishing a framework for Community action in the field of water policy (Water Framework Directive), consolidated text as at 20 November 2014. Article 4(7) quoted in full including the two indents and conditions (a) to (d), and the phrase 'and all the following conditions are met'. Article 4(8) quoted in full. Article 4(9) quoted.(opens in a new tab)
PRIMARYCourt of Justice of the European Union, Case C-461/13, Bund für Umwelt und Naturschutz Deutschland eV v Bundesrepublik Deutschland, judgment of 1 July 2015 (the 'Weser' judgment). Quoted: deterioration occurs 'as soon as the status of at least one of the quality elements, within the meaning of Annex V to the directive, falls by one class, even if that fall does not result in a fall in classification of the body of surface water as a whole'; and 'if the quality element concerned, within the meaning of that annex, is already in the lowest class, any deterioration of that element constitutes a "deterioration of the status" of a body of surface water, within the meaning of Article 4(1)(a)(i)'.(opens in a new tab)
PRIMARYRegulation (EU) 2024/1252 establishing a framework for ensuring a secure and sustainable supply of critical raw materials, consolidated text. Article 10(2) quoted: 'With regard to the environmental impacts or obligations addressed in Article 6(4) and Article 16(1), point (c), of Directive 92/43/EEC, Article 4(7) of Directive 2000/60/EC and Article 9(1), point (a), of Directive 2009/147/EC or in Union legislative provisions regarding the restoration of terrestrial, coastal and freshwater ecosystems, Strategic Projects in the Union shall be considered to be of public interest or serving public health and safety, and may be considered to have an overriding public interest provided that all the conditions set out in those Union legislative acts are fulfilled.'(opens in a new tab)
ANALYSISOURS — the observation that Article 10(2) of the Critical Raw Materials Act pre-answers one limb of the Article 4(7) test rather than waiving the test is this hub's reading of the two instruments read together. Neither instrument says so in those terms, and no case law applying Article 10(2) was consulted.Non-public document · no public URL
UNVERIFIEDGAP — no case law applying Article 4(7) of Directive 2000/60/EC specifically to a mining or mineral-processing project was examined for this article, and none is cited. The test is described from the legislation and from the Weser judgment only.Non-public document · no public URL