Water governance in Belgium – Legal complexities ahead
11 Apr 2024
Environmental regulations, whether national or European, are increasingly becoming breaking points in permit procedures for project development.
In recent years, nitrogen has posed significant challenges in Flanders in permit procedures and relevant case law. Now, the theme of ‘water’ is rapidly gaining importance and seems to be becoming a new stumbling block. This newsflash highlights the most important regulations regarding water in Flanders and discusses why water has become such an important aspect in permitting practice.
Water – what’s at stake?
a. EU legislation on water
The Water Framework Directive (WFD), adopted in 2000 and transposed into Flemish law, aims to protect and, where necessary, restore bodies of water in order to achieve ‘good’ status and to prevent deterioration by 2027. Achieving this status involves meeting standards for ecology, chemistry, and quantity, with an ‘all or nothing’ principle guiding water quality assessments. According to this principle, a body of water is considered to fail to meet its objective in its entirety if one of the criteria lacks the required status.
The European Court of Justice reminded all Member states in 2015 that they must meet stringent water quality objectives. The Court emphasised that permits should be denied if they pose a risk to water quality or jeopardise the imposed water quality targets.
b. The situation in Flanders
Water quality statistics in Flanders are worrisome, as only one out of 195 bodies of water was given the status ‘good’. Looking at the data from the Flanders Environment Agency (Vlaamse MilieuMaatschappij), responsible for water quality in Flanders, a third of the water courses in Flanders score ‘intermediate’ and the vast majority score ‘insufficient’ or ‘bad’. Despite improvements since 2012, the Flemish government faces challenges in meeting the 2027 deadline, risking fines due to persistent pollutants, including pesticides and metals, which exceed international norms.
Water quality is determined by the actions of polluters (households, industry, agriculture and diffuse sources), the effectiveness of wastewater treatment and the self-cleaning capacity of the bodies of water. Flanders is densely populated, highly industrialised and has few major rivers. Agriculture is intensively practised. In addition, pollution also flows into our waterways from neighbouring countries or from Wallonia and substances enter the water through the air.
These conditions are likely to result in water quality in Flanders falling short of the required EU standards The diversity of water pollution sources calls for a more centralised water governance approach in Belgium.
Proceedings related to water pollution at the Flemish Council of Permit Disputes
On 8 February 2024, the Flemish Council of Permit Disputes annulled an environmental permit granted by the Flemish government for the exploitation and expansion of a landfill site in West Flanders. The Council of Permit Disputes considered that the respondent failed to address concerns regarding the environmental impact of PFOS discharge.
Another case is currently pending at the Council where water pollution may be a breaking point. The NGOs Bond Beter Leefmilieu and Natuurpunt have filed an appeal for the annulment of an environmental permit granted to Ineos Aromatics, for a project which includes cobalt discharges in the Grote Nete, a protected area under the EU water objectives. The NGOs argue that the permitted cobalt discharge poses a risk to achieving these objectives, potentially compromising the water quality of the Grote Nete River. A judgment decision is expected in the coming weeks. An annulment decision could set the stage for a critical examination of water quality governance in Belgium.
The water quality issue draws parallels with nitrogen in Flemish permit practice. European-initiated environmental objectives are not being met due to a multitude of polluting activities. There is, therefore, an urgent need to drastically reduce these polluting activities to prevent a complete permit freeze.
Conclusion
Environmental aspects are increasingly becoming breaking points in permit procedures for project development. The controversy surrounding water quality, in parallel with the nitrogen crisis of 2021, underscores the intricate challenges in balancing economic activities with environmental sustainability. The issue highlights the urgency for adaptive measures as Flanders straddles the dividing line between industry and environmental conservation.
Stay tuned for further updates!
Els Empereur - Karel Veuchelen
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