Norway violates the EU's water directive

Norway's Environment Protection Association complains to EFTA.

Norway has participated fully in the European Common Implementation Strategy (CIS) for the Water Framework Directive (WFD) since 2001. The water management plan "River Basin Management Plan" (RBMP) was approved by the Ministry of Climate and Environment 1 . July 2016 and should be in line with the WFD.

From 14 December 2018, the WFD was to be part of national law. Here, Norway has failed, which is explained by the fact that the Regulations on Frameworks for Water Management (Water Regulations) of 2006 neither transforms nor implements the WFD into Norwegian law in a satisfactory manner. The Norwegian water regulations must, based on the specific content, comply with the WFD and promote the same purposes and motives that follow from the EEA agreement. Norway's only freedom of action is to be able to determine the form and means of implementation (EEA agreement Article 7).

  • "Art 7. Legal acts which are referred to in or included in annexes to this agreement or in the EEA committee's decision shall be binding on the parties to the agreement and shall be or be made part of their internal legal order as follows...
  • a legal act corresponding to an EEA directive shall leave it to the authorities of the contracting parties to determine the form and means of implementation".

It is only Section 26 of the Natural Diversity Act (adopted by the Storting on 20 November 2018, later sanctioned on 14 December 2018), which is the first and only authority that specifically refers to the WFD. This means that before this date there is no legal authority in Norwegian law for any body to implement WFD in Norwegian law. The following appears from the text of the Natural Diversity Act § 26a):

  • "The King can lay down the regulations that are necessary to implement European Parliament and Council Directive 2000/60/EC of 23 October 2000 on the establishment of frameworks for community measures for water policy (the Water Directive) in Norwegian law".

Section 26a of the Norwegian Biodiversity Act) has not been followed up, and I prove this by comparing the purpose clause of the water regulations with the WFD's purpose clause:

Regulations on frameworks for water management (water regulations) of 15 December 2006
§ 1. Purpose:

  • "The purpose of this regulation is to provide frameworks for setting environmental targets that will ensure the most comprehensive protection and sustainable use of the water bodies.
  • The regulations must ensure that approved water management plans with associated action programs are reassessed and updated every six years.'

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 2000/60/EC of 23 October 2000 on establishing frameworks for Community measures for water policy (Water Directive).

Article 1:

  • "The purpose of this directive is to establish a framework for the protection of lake surfaces, transitional waters, coastal waters and groundwater that prevents further deterioration and protector and improves the status of aquatic ecosystems and, with respect to their water needs, terrestrial ecosystems and wetlands directly dependent on aquatic ecosystems'.

That is that it should be clear enough that the Water Directive is binding for Norway, that this should be part of national Norwegian law, and which therefore happened (finally) on 14 December 2018.

As the Government formulates itself in the water regulations, WFD has not been taken into account. Section 1 of the Water Regulations only deals with the setting of environmental targets without the clause that no deterioration is legal! The design of the purpose clause opens up the possibility that limit values can be set that are so high that even the worst sewage can find acceptance and thus be approved as legal.

For example: To avoid discussion about the pollution around the cages, the breeding facilities are moved from an area with poor environmental conditions to another cleaner area. This can continue until all fjords are found to be in poor or very poor environmental condition. The rationale is as simple as it is flawed; what the Water Regulation obliges Norway to do is the most comprehensive protection possible. It is sufficient that the coastal water has a good ecological and good chemical condition. The way Norway practices it, it is then necessary to show that the polluter cannot afford to take care of rubbish, sewage, waste etc., so then it is not possible, as § 4 of the water regulations also indicates:

  •  "The state of surface water must be protected from deterioration, improved and is restored with the aim that the water bodies should have at least good organic and good chemical state…”.

The water should be protected against deterioration, but wording that the water must not deteriorate does not exist. This is a paradox in itself. The water regulations require that the environmental management must strive to ensure that they have done everything in their power to protect the coastal waters, some of which unfortunately proved unsuccessful. The assessment according to the water regulations then becomes whether, as a result of dumping, waste, emissions and the like, a fjord changes from something the authorities define as "good", "bad" or, in the worst case, "very bad". The water regulations 1.2 Normative definitions for classification of ecological condition:

  • "Water showing signs of extensive changes of the values for biological quality elements for the relevant type of surface water body, and where relevant biological communities deviate significantly from what is normally associated with the type of surface water body under pristine conditions, are classified like bad».
  • "Water showing signs of serious changes of the values for biological quality elements for the type of surface water body in question, and where large parts of relevant biological communities that are normally associated with the type of surface water body under pristine conditions, is absent, is classified like very bad».

In a fjord such as the Repparfjord where there used to be bustling life and an untouched biotope before 1971, after 9 years of mining there was no life where the "landfill" was placed. Here the condition must be described as very bad? Today in 2019 - 40 years later, one of the mining company's marine biology experts was able to triumph over the fact that she had found certain hints of life in an area that had been tentatively set up as a "landfill" in the fjord.

EU/EEA national states are exempt from the obligation to take action if degradation comes from a "natural cause or force majeure". Waste that is dumped in a Norwegian year is not defined as a natural cause or force majeure.

The relevant provision in relation to this is WFD article 4 no. 6:

WFD's main purpose is to promote the improvement of poor water quality and only accepts deteriorated water in two cases:

  • natural cause
  • force majeure

Norway provides the opportunity to let the water quality go from excellent or good to bad or worse. This is contrary to the WFD. The government fails to follow up on the Biodiversity Act § 26a) and the failure to implement the precautionary principle violates the Biodiversity Act § 9. Regardless of the conclusion on this issue, a further challenge to the expected validity of the Repparfjorden license to deposit mining continues. The WFD does not allow Norway to create Section 12 of the Water Regulations on new activity or interventions. The WFD is binding for Norway, the EEA Agreement Article 7 b).

We shall not dig deep into the text to conclude that the Norwegian water regulations are far outside the WFD. Thus, the concessions that allow NUSSIR to "deposit" mining operations in the Repparfjord are not justified and are against the law. The same applies to the impacts from the farming industry. The farming industry's ecological impacts are complex and described in detail by a number of organisations' previous complaints to EFTA in 2014 and 2015. In 2017, the EFTA Surveillance Authority (ESA) responded in its last letter in the case on 21 February 2017 with the following comment:

  • "In light of the work that will begin soon, we have decided to await the outcome of the assessment of Norway's RBMP before taking further steps in the matter. The project will give us a thorough assessment of the aquaculture problem, as well as additional general information about how the WFD is transferred to Norway."

Norwegian law does not correspond to the WFD. The water regulations ignore that the WFD contains a basic principle of "control at source". Furthermore, there is no effect of the "precautionary principle". The consideration of socio-economic conditions and workplaces does not change the non-fulfilment of WFD in Norwegian law.

  • "By law shall land building cast and not with illegal islands»: King Magnus Lagabøte 1274.

It is high time for a "fitness check" of Norwegian legislation. The Norwegian Environmental Protection Association (NMF) is now taking up the cases related to the dumping of mining waste in Norwegian fjords and the complex environmental impacts of the farming industry. NMF complains to Norway before EFTA and ESA.

Read the complaint here.

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