Brussels courts strategic industries with water permitting guidance

Last week’s guidance unpacks new tools to ease permitting for strategic industries. It is unlikely to stave off wider revisions to the Water Framework Directive.

---

A guidance document from the European Commission, issued last Friday, has clarified the mechanisms within the Water Framework Directive (WFD) that can speed up projects crucial to European strategic independence. The release comes just a month ahead of a scheduled reopening of the Directive by the Commission, as it seeks to prove its water regulation is not a barrier to "competitiveness".

The main target of changes so far has been the mining and processing of critical raw materials, such as lithium, rare earths, cobalt, nickel and copper – essential to the EU’s battery, magnet and defence supply chains. However, the guidance tellingly specifies that the rules equally apply to “other projects or activities, including those related to strategic sectors promoted in the context of the Renewable Energy Directive III, the Chips Act or the Net Zero Industry Act”. Given the WFD revision proposal is meant to be “in line with the interpretative guidance”, we should expect similar industries to benefit from any upcoming revision. 

Member states in the EU are required to meet “good” chemical status in all water bodies by the end of 2027 under the WFD – the Commission reported last September that 46% of surface waters and 24% of groundwaters in the EU currently fail the tests.  

Meanwhile, the updated Environmental Quality Standards (EQS) that came into force on 11 May, will raise the bar significantly over the coming decade. By 2033, tighter limits on existing contaminants will apply, while by 2039 most water bodies must meet low levels of pesticides, PFAS (including the short-chain TFA) and pharmaceutical compounds. 

On Friday, the Commission indicated that some permitting authorities were overly strict in their interpretation of the rules, and that new industrial users could be allowed to exceed certain parameters if the wider water body remained compliant – for example by tightening older industrial permits nearby, or designating “mixing-zones” near an industrial discharge point where exceedances would not throw the water body out of compliance. 

It also clarified two new rules introduced with the updated EQS: industry is allowed to cause short-term deterioration of water body health (no longer than one year for chemical and physico-chemical quality, three years for biological quality), and can also relocate polluted water or sediments between water bodies, provided there is no net increase in pollutant load. 

These mechanisms were concessions given in the negotiations over the tightened pollutant rules last year, first brought by a group of member states through the European Council’s negotiating position. Using the EQS debate as a backdoor, lobbyists have succeeded in prising open the underlying regulation for revision, and a short public consultation took place last month. 

Proponents of the revision are calling for three main further changes: 

• Softening the deterioration test. Under a 2015 European court ruling, a project counts as causing "deterioration" the moment it worsens any single quality element — even if the water body's overall status classification doesn't change. Industry wants the test to track overall status instead. 

  
  

• Extending the 2027 "good status" deadline. Industry says legacy contamination embedded in sediments makes existing targets unachievable, and wants deadlines pushed back alongside broader use of "less stringent management objectives" for water bodies where good status is genuinely unattainable.  

  
  

• Aligning the WFD with the Industrial Emissions Directive. Revision proponents want Best Available Techniques (BAT) compliance under the Industrial Emissions Directive to create a legal presumption of WFD compliance — currently, facilities applying the best available technologies may still breach water quality rules. 

  
  

However, the 3,000+ responses to the consultation were sharply tilted in support of retaining existing rules. The French government also came out against the revision proposal, telling the Commission that "no advanced project involving the extraction, processing, or recycling of critical raw materials in France has been significantly impeded by existing water legislation and regulations." The Netherlands is understood to have made a similar statement. 

Meanwhile, more than 50 MEPs have penned letters in protest to the Commission, and Parliament’s water rapporteur Thomas Bajada labelled the guidance a “a move towards a worrying direction”. 

For water utility association EurEau, the extent of Friday’s guidance proved that there is “no need for revision”, commenting in a statement - “there is no evidence that the WFD is stopping mining projects from going ahead. Changing the text of the Directive would risk weakening water protection standards and shifting costs from polluters to taxpayers and water bills.” EurEau’s key concern is the knock-on effect on water utilities, with their official submission stating: “No change to the WFD is acceptable if it allows such a deterioration of the raw water quality that additional treatments are needed to reach Drinking Water Directive standards.” 

If the revision is formally proposed next month, there will be significant push-back in Parliament, which alongside the European Council will need to approve the proposal. Environmental NGOs will also use the moment to campaign for amendments that could strengthen rules too, for example, attempting to add lithium and other mining-related contaminants to the priority-substances list. 

Centre-right MEPs needed to ally with the far right to force through the roll-back of corporate sustainability rules late last year, and while similar discussions have taken place about a resolution to “stop the clock” on the UWWTD’s polluter pays mechanism, many are uneasy about revisiting that political alliance.