It is back to school for most of Northern Ireland’s school children this week and the Office of Environmental Protection (OEP) has released its report entitled “A review of implementation of the Water Framework Directive Regulations and River Basin Management Planning in Northern Ireland”.
The OEP report concludes that Northern Ireland is not on track to meet the Environmental Objectives in the Water Environment (Water Framework Directive) (Northern Ireland) Regulations 2017 or the targets DAERA has set.
The OEP is particularly concerned about the adequacy of measures to achieve the Environmental Objectives by the 2027 deadline. The report highlights a need to act with pace, urgency and clarity in relation to these outcomes and others that depend on them.
If this was a school report, the Department of Agriculture and Rural Affairs (DAERA) may have received comments like “tardy in submitting homework” “only submits half of the homework”, “needs to answer the questions asked” and “must try harder”.
What is the Water Framework Directive and does it still apply in Northern Ireland post Brexit?
The Water Framework Directive is the main EU law on water. The Directive was transposed into Northern Ireland law in 2003 and the current regulations are the Water Environment (Water Framework Directive) Regulations (Northern Ireland) 2017 (“the WFD NI Regulations”).
The WFD NI Regulations continue to apply in Northern Ireland. Under the Retained EU Law (Revocation and Reform) Act 2023 they are ‘assimilated law’. It is possible that DAERA, up until 23 June 2026, under the Retained EU Law Act, could modify, revoke or replace the WFD NI Regulations through new legislation with minimal scrutiny by the Northern Ireland Assembly.
The WFD NI Regulations are very technical and complex, therefore this article will only summarise at a high level a limited number of the requirements.
What are the OEP specifically concerned about?
The WFD NI Regulations require DAERA to develop and roll out River Basin Management Plans every six years. The latest River Basin Management Plan (RBMP) was due to be adopted by December 2021. Although a draft was consulted upon, this draft plan has yet to be finalised. The OEP report sets out a number of serious criticisms of this draft, including questioning whether it complies with DAERA’s legal obligations under the WFD NI Regulations.
What are River Basin Management Plans and why are they important?
RBMPs set legally binding, locally specific, environmental objectives that underpin water regulation (such as permitting) and planning activities. They also provide a stable planning base for economic development.
Where are we with the third cycle of River Basin Management Plans?
The third cycle RBMPs should have been completed under the WFD NI Regulations by December 2021. DAERA consulted on a draft RBMP in March 2021. However, progress on the RBMP was delayed by a combination of covid and the collapse of the Northern Ireland Assembly. As the OEP report identifies, the draft RBMP requires considerable further information and development before it can be adopted.
In contrast with earlier cycles of implementation, where there was one RBMP for each River Basin District, DAERA now proposes to produce a single RBMP covering all three River Basin Districts.
Failure to include objectives
The OEP highlight that the draft RBMP which was subject to consultation was does not include proposals for Environmental Objectives or set out information about exemptions. In response DAERA has stated that:
‘The final RBMP will provide environmental objectives and any exemptions applied at water body level. As this information will be part of the supporting documents and map viewers supporting the final plan it could not be published prior to the final plan obtaining Executive approval.’
However, the WFD NI Regulations require consultation on the proposed Environmental Objectives and Programme of Measures. At best, the failure to include objectives and exemptions in the draft documents in 2021 means that further consultation will be required, which means further delays to adoption.
A Strategic Environmental Assessment (“SEA”) may also be required once the objectives are identified. It is noted that the SEA Screening which accompanied the draft concluded that the draft RBMP did not require an SEA:
“because the draft plan constitutes minor modifications to existing plans and the modifications are not likely to have significant environmental effects.”
However, further analysis of the SEA Screening shows that the significance of environmental effects could not be identified as there was insufficient information or detail. This is a theme throughout the draft RBMP and one which the OEP is highly critical of. In the event that an SEA is required, it will take some time to prepare that SEA and it will be necessary to hold a public consultation on it.
Draft RBMP “may not comply with the WFD NI Regulations”
The OEP report states that:
“the draft Programme of Measures in the draft third cycle plan may not comply with the WFD NI Regulations.”
Under the WFD NI Regulations, RBMPs should contain a full set of water body level Environmental Objectives, including any associated ‘exemptions’, and a summary of ‘Programmes of Measures’ to achieve those objectives. However, the draft RBMP does not include water body level Environmental Objectives. Instead, it proposes a more general ‘working target’ for 70% of all Northern Ireland’s water bodies to be at ‘Good Status’ by 2027. This general approach, without specific water body level objectives may not meet the requirements of the WFD NI Regulations.
Pickering Fishery Association v Secretary of State for Environment Food and Rural Affairs – undermining the lawfulness of DAERA’s approach?
The OEP considered the English High Court judgment in Pickering Fishery Association v Secretary of State for Environment, Food and Rural Affairs [2023] EWHC 2918 (Admin) handed down in November 2023. Pickering concerned a legal challenge to the River Basin Management Plan for the Humber district, as signed off by then Secretary of State for Environment, Food and Rural Affairs (DEFRA). Similar to the approach adopted by DAERA, the DEFRA River Basin Management Plan included ‘summary programmes’ of measures intended to restore all waterbodies in each of the 10 river basin management districts in England ahead of the final target date for achievement of the environmental objectives of December 2027 as set out in the English WFD Regulations.
It was argued by Pickering that the plan, which comprised wholly generic or yet to be formulated steps, lacked the legally required measures necessary to restore the Upper Costa Beck, such as review and tightening of inadequate discharge permits and other authorisations to tackle the root causes of fish failure. The absence of specific information in respect of the Upper Costa Beck, and in particular in respect of the current discharges into the watercourses also undermined the consultation process.
Whilst the High Court found that a RBMP can include generic measures that apply across a range of water bodies, either across the RBD or more broadly, the level of detail needed will vary. However, the Programmes of Measures must consider what specific measures are necessary to achieve the Environmental Objectives for each water body.
Mrs Justice Lieven characterised the Secretary of State’s approach to river basin planning management as one of “smoke and mirrors”, noting the acceptance before the Court that there was no evidence that the relevant programme of measures could reasonably be expected to achieve the environmental objectives for the Upper Costa Beck.
Pickering establishes that one of the ‘basic measures’ required; includes measures to address point source discharges. Giving the specific example of environmental permit limits for wastewater treatment works, the Judge commented that the decision as to whether an individual discharger needs to be more tightly controlled can only be made on a water body specific basis.
Although it should be noted that the Pickering decision is subject to appeal, the High Court decision suggests that DAERA’s generic approach to river basin management may not be lawful.
Failure to cost proposals
The OEP is also highly critical of DAERA’s failure to provide a full investment analysis to accompany the draft Programme of Measures for the third cycle RBMP. OEP note that:
“The availability of funding to implement Programmes of Measures is central to application of the WFD NI Regulations. At the time of writing, however, the necessary future funding for the application of the regulations is unclear due to financial constraints on Northern Ireland government departments and other bodies.”
The “Living With Water Programme in Belfast” is one of the most significant commitments reflected in the draft RBMP and the draft Programme of Measures. The Living With Water Programme was endorsed by the Northern Ireland Executive in 2021 including the need for approximately £1.2 billion of investment over a 12-year period . The majority of this investment is aimed at upgrading the overloaded sewerage networks and wastewater treatment works, thus reducing the nutrient and pollution loading on Belfast Lough.
Much of the works associated with the Living With Water Programme are due to be delivered by NI Water. NI Water is a publicly funded, regulated utility. There has been significant press coverage of NI Water’s budgetary constraints and the OEP report repeatedly highlights the issues arising from the chronic under funding of water and sewerage services as well as future funding issues. Given the uncertainty over the funding (and as a result the timescales for delivery) of the Living With Water Programme it is not clear whether the measures identified in the draft RBMP can or will be delivered.
Conclusions
The OEP report identifies a number of serious deficiencies in the draft RBMP and makes a series of detailed recommendations. It appears that DAERA will have to go back the drawing board to develop a draft RBMP that clearly sets out how the 2027 Working Target of delivering “Good Status” for 70% of Northern Ireland’s water bodies will be achieved including how those measures will be funded.
The biggest hurdle of all seems to be securing the necessary funding to deliver the improvements required. Without significant political will and additional funds the current targets appear likely to be missed by a large margin.
While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.
