The New Drinking Water Directive - a policy journey
The new Drinking Water Directive entered into force on 12 January 2021: EU countries will have two years to transpose the new legislation into national law.
This article retraces the work of EurEau, the European Federation of Water Services, on the new Directive from the beginning of the evaluation process, started by the European Commission in 2014, to the negotiations between the European Institutions and up to the final agreement on the legal text.
Furthermore the article aims to present a brief but comprehensive policy analysis of the new provisions, sketching the developments that drinking water operators should expect in the future, in light of their core mission of supplying safe, wholesome and affordable drinking water to EU citizens.
The journey towards a new Drinking Water Directive
In 2013, the European Commission were already thinking about revising Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption, commonly known as the Drinking Water Directive (DWD). Coming up to its 20th anniversary, and despite the high level of compliance all around Europe, new challenges were identified and needed a legislative response in order for the legislation to be fit for purpose and continue protecting citizens’ health.
The European Citizens’ Initiative (ECI) on the ‘Right2Water’ (R2W) launched in 2012 accelerated this process. This was the first ever approved Citizens’ Initiative to gather over one million signatures. The ECI is a tool that provides European citizens with the possibility to demand legislative action by the European Commission on a specific field. The R2W ECI asked three things: that EU legislation require national governments to provide all citizens with sufficient clean drinking water and sanitation, more EU action on realising the human right to water globally and no liberalisation of water services. This participatory democracy exercise gathered 1.6 million signatures from people across the EU, although over 1.2 million signatures were gathered in Germany alone.
According to the Better Regulation guidelines, the European Commission has to take a number of steps to consult and gather the opinions of national authorities, stakeholders and citizens on how legislation is performing and then look at various scenarios (policy options) to change it by conducting an impact assessment of the different options.
Despite the two stakeholders’ workshops on the evaluation of the 1998 Directive and the two stakeholders’ dialogues within the R2W ECI process in which EurEau participated and delivered the view of water services, there was a very limited targeted stakeholders’ consultation on the possible new provisions (policy options). The impact assessment failed to evaluate the costs and the benefits of some scenarios, in particular those related to complying with new and stricter parametric values as acknowledged by the Commission internal Regulatory Scrutiny Board.
It was clear from the beginning that this file presented a double challenge: it was both tremendously technical and extremely political. For EurEau, it was “the” legislative file to focus on from 2014 onwards since it would reform the main piece of legislation guiding the work of drinking water operators.
In the EU decision-making process, the European Commission has the exclusive power to initiate legislation, while it is up to the European Parliament (made up of the members that EU citizens directly elect every five years) and the Council of the EU (where the national governments represent their interests) to co-legislate, meaning that it is up to them to decide on the final political direction and final legal wording of a piece of legislation.
For EurEau the priorities were clear. A new directive had:
- to protect citizens’ health and consider water supply “from catchment to tap” in the spirit of the WHO Water Safety Planning approach
- to have a list of parameters and parametric values in line with the WHO recommendations
- to finally get EU-wide hygienic requirements for the materials and products in contact with drinking water. On this very complex issue, we co-organised several meetings with the producers of these products to raise European Commission’s and the national authorities’ awareness of the provision that had not been implemented in Member States, leading to a patchwork of approaches that did not ensure the protection of the consumers across Europe.
The new legislative proposal
The European Commission adopted the new legislative proposal on 1 February 2018. By 8 March the EurEau Drinking Water Committee had already a first detailed reaction that we shared with the Committee of the Regions, a body representing local and regional authorities that was writing an opinion on the Commission’s proposal. The latter was considered by EurEau experts as not to be legally sound and to be very difficult to implement in practice. Furthermore it would impose an enormous burden on water operators without additional benefits for the protection of human health.
In particular the water sector’s constructive criticism focused on:
- the sampling and monitoring frequency for chemical parameters that, without a reasonable explanation (other than a mistake in the interpretation of the WHO recommendations), would skyrocket
- the new parametric values, inexplicably more ambitious than what the WHO had recommended
- the repeal of the general obligation for Member States to ensure that materials and products in contact with drinking water would not deteriorate the drinking water quality. This specific point was very worrying because it would have left it to each water utility risk assessment to decide what to buy from an unregulated market where there would be no assurance of quality of these products: this would make the investments much riskier and would potentially negatively impact public health
- the deletion of the Indicator parameters
- the deletion of the derogations clause and the lack of a transitional period for new parameters and new parametric values.
We swiftly produced a EurEau position paper on the Drinking Water Directive that served as a basis for our advocacy efforts in the European Parliament and in the Council.
The EU co-legislators in action
We shared our concerns and suggestions for improvement with the Member States environment attachés at the EU level and especially with the Rotating Presidency of the Council of the EU. The Working Party on Environment - the Council working body that discusses article by article the legislative proposal and delivers the EU governments’ perspectives - met right away (as early as mid-February) to examine the new draft legal text.
At the same time we asked our members to share their observations with their national authorities in the ministries to convey the specific challenges that they would face considering their local situations.
The European Parliament started to examine the directive in the month of May 2018, when Members of the European Parliament (MEPs) reacted to the draft report of the Rapporteur, Mr Michel Dantin. A passionate MEP from France, Mr Dantin was also Mayor of Chambery and had served as the President of his regional Water Agency. He was very knowledgeable about water matters and understood the challenges of utilities in delivering water services.
It was immediately clear that he was interested both in the technical and in the political aspects of the directive, unlike some of his colleagues that would focus their work mainly on the “right to water” provisions. Other topics that were high on the agenda of the European Parliament were the introduction of an article on the reduction of water leakage. The latter, together with increased requirements for energy efficiency in the water sector, was a topic on which the technology providers had been very vocal within the European Institutions.
In May, EurEau co-organised a European Parliament Intergroup meeting with the key decision makers in attendance: the Commission, Mr Dantin for the Parliament, and the Bulgarian Presidency of the Council. We had the opportunity to share the ideas of the water sector and raise our concerns about specific changes that the proposal would introduce and that would prove challenging without additional health benefits for the consumers. In June we organised a site-visit to the drinking water plant of the company Vivaqua in Belgium in order to show what is happening “behind the tap”.
All these activities made the co-legislators aware of the importance that this Directive had for consumers of drinking water, whose health needed to be protected and whose water bills needed to remain affordable.
After various delays (the Directive was not a political priority for the Austrian Presidency, and the European Parliament went on recess due to the 2019 European elections that resulted in bringing to the file a whole new team of Members of the European Parliament, this time led by the Luxemburgish Christophe Hansen), an agreement on the final text was found in December 2019. Unfortunately the translation into the 24 EU official languages and the finalisation of the legal text were taken hostage by the Covid-19 crisis. For this reason the official approval by the European Parliament occurred only in December 2020. As a consequence, the legislation entered into force on 12 January 2021; Member States will have two years to transpose the Directive into national legislation.
The new Drinking Water Directive
The final text of the Directive represents an improvement of the European Commission proposal. Thanks to the analytical work of the European Parliament and of the Council of the EU, the new Directive includes the following interesting elements:
- The Risk-Based Approach is made compulsory and there is an obligation on Member States to take measures according to a hierarchy that prioritises pollution prevention
- The frequency for sampling and monitoring of chemical parameters is almost the same as the one currently in place
- The parameters and the parametric values are much better aligned with the WHO recommendations. It is still unknown what will be the impact of some specific parameters such as PFAS since competent authorities will have the possibility to choose whether to regulate these substances as a family or to focus on the sum of 20 PFAS
- The indicator parameters were re-instated
- A new and more comprehensive system for EU-wide hygienic requirements for materials and products in contact with drinking water has been established. It will require a lot of cooperation between the national health authorities, the European Commission, ECHA (the European Chemical Agency) and the JRC (Joint Research Centre) to create a real and functioning EU market for these products, but the good news is that a clear path to follow is now enshrined in the legislation
- There is a new obligation for Member States to take the necessary measures to improve or maintain access to water for all, in particular for vulnerable and marginalised groups, in line with the UN SDG6; EU countries are also encouraged to promote tap water in public spaces, public buildings and administrations.
- The new DWD contains also a general obligation for Member States to tackle leakage: national authorities shall conduct an assessment of the levels of leakage according to a method of their choice and covering at least water suppliers supplying at least 10,000 m3 per day or serving at least 50,000 people by 2026. On the basis of this assessment, the European Commission will determine a threshold by 2028 and by 2030 Member States above that threshold will have to present action plans on how to reduce the level of leakage
- Article 13(8) establishes a new mechanism; the Watch List to monitor pollutants of emerging concern in water resources. The first Watch List will be adopted by 12 January 2022 and will contain Beta-estradiol and Nonylphenol. By 12 January 2024 the Commission will adopt a methodology to measure microplastics with a view to including them in the watch list. The latter will indicate a guidance value for each substance and in case of exceedance of the value the competent authorities have to take measures, according to the specific hierarchy indicated, starting from pollution prevention
- The derogation clause was re-included with the possibility to request a derogation once for three years and only in the following cases:
- a new catchment area for the abstraction of water intended for human consumption
- a new source of pollution detected at the catchment area for the abstraction of water intended for human consumption or parameters newly searched for or detected, or
- an unforeseen and exceptional situation in an existing catchment area for the abstraction of water intended for human consumption that could lead to temporary limited exceedances of the parametric values.
A second derogation may be granted under exceptional circumstances and on the condition that a review has been carried out.
- The general public will be able to access more and relevant information online such as the identification of water suppliers, area and number of people supplied, and the method of water production, including general information on types of water treatment and disinfection. Information on hardness, minerals (Calcium, Magnesium and Potassium) will also be available along with the advice for consumers about water savings and the risks of stagnant water.
For water suppliers supplying at least 10,000 m³/d or serving at least 50,000 people, annual information will be published on the overall performance of the system in terms of efficiency, and leakage rates once available and more information on price and tariffs.
- Consumers will also receive regularly (at least once a year) information on the quality of water intended for human consumption; on the price of water supplied, per litre and cubic metre; the volume consumed by the household, at least per year or per billing period, together with yearly trends of the household and comparisons of the yearly water consumption of the household with the one of an average household.
What EurEau did
EurEau accompanied the evaluation of the 1998 Directive as well as the revision process starting from the 2014 public consultation. We regularly spoke at workshops and experts meetings and shared with the European Parliament voting recommendations. We repeatedly sent feedback to the decision-makers during the negotiations on the legislative text between the European Parliament and the Council. Our drinking water experts were very committed and dedicated a lot of time and energy to this file, thoroughly examining Articles and Annexes and understanding the impact that these would have on their operations.
In less than two years, the drinking water experts met 8 times and worked in between these meetings by exchanging countless emails. The organisation of an Intergroup meeting right at the start of the discussions allowed EurEau to shape the debate on specific matters.
Another fundamental step was showing decision-makers how “drinking water is made”: waterworks are not easily accessible to non-experts (for obvious security reasons) and it was fascinating for them to learn how safe drinking water reaches their taps.
EurEau held 44 meetings with MEPs and political advisors, 16 bilateral meetings with the representatives of national governments and met twice the Committee of the Regions.
We also participated in 13 external events on the Drinking Water Directive and engaged 16 times with other stakeholders in order to build partnerships with likeminded actors while being aware of the positions of the competitors.
These activities made us realise how important it is to be ready, react fast and with sound arguments based on the experience of excellent professionals that protect the health of the water consumers on a daily basis. At the same time, it was fundamental to translate their knowledge into good policy-making, talking to the right target group at the right level and at the right time. It has been a challenging and fulfilling experience that turned out to be a success for EU citizens that will be able to continue to enjoying safe drinking water at an affordable price.