Nationally Significant Infrastructure Projects: Advice on the Water Framework Directive
This advice summarises the requirements of The Water Environment Regulations 2017 (the WFD Regulations) in relation to Nationally Significant Infrastructure Project (NSIP) applications.
Applies to England and Wales
The government has published guidance about national infrastructure planning which applicants, members of the public and other parties should read. See the National Infrastructure Planning Guidance Portal. The guidance should be read alongside the Planning Act 2008 (the Planning Act).
This advice is non-statutory. However, the Planning Inspectorate’s advice about running the infrastructure planning regime and matters of process is drawn from good practice and applicants and others should follow our recommendations. It is intended to complement the legislation, regulations and guidance issued by government and is produced under section 51 of the Planning Act.
This advice should be read together with Planning Inspectorate’s Advice on the Environmental Impact Assessment Process and government guidance on the Planning Act process.
Aims of the WFD
The Water Environment Regulations 2017 (Water Framework Directive) (England and Wales) transpose the Water Framework Directive into UK law.
The WFD protects surface waters including rivers, lakes, transitional waters (referred to in this advice as estuarine waters), coastal waters and groundwater.
The aims of the WFD are:
- to enhance the status and prevent further deterioration of surface water bodies, groundwater bodies and their ecosystem
- to ensure progressive reduction of groundwater pollution
- to reduce water pollution, especially by Priority Substances and Certain Other Pollutants under Annex II of the Environmental Quality Standards Directive 2008/105/EC
- to support mitigating the effects of floods and droughts
- to achieve at least good surface water status for all surface water bodies and good chemical status in groundwater bodies by 2015 (Article 4), or good ecological potential for artificial or heavily modified water bodies
- to support sustainable water use
The 2017 WFD Regulations require the appropriate agency, namely the Environment Agency in England and Natural Resources Wales in Wales, to prepare River Basin Management Plans for each river basin district (RBD), for the approval of the appropriate authority. The appropriate authority is the Secretary of State in England and Welsh ministers in Wales.
There are 12 RBDs in England, Scotland and Wales, including two cross-border RBDs between England and Wales and one which crosses the borders between England and Scotland.
River Basin Management Plans describe:
- the current state of the water environment for each river basin district
- the pressures affecting the water environment
- the objectives for protecting and improving it
- the programme of measures needed to achieve the statutory environmental objectives of the WFD
These plans were first published in 2009 and are subject to regular review to ensure they comply with the main objectives of the WFD. The most recent review was completed in 2022.
Duties of the Secretary of State and Examining Authority
The 2017 WFD Regulations place a general duty on the Secretary of State, Welsh ministers, the Environment Agency, and Natural Resources Wales to exercise their ‘relevant functions’ to secure compliance with the WFD (Regulation 3). Functions under the Planning Act 2008 are not ‘relevant functions’ for this purpose.
These authorities and each public body (as defined in Regulation 2) also have a duty to have regard to the relevant River Basin Management Plan in exercising their functions (Regulation 33). This duty does apply to functions under the Planning Act 2008 in examining and determining NSIP applications.
When deciding NSIP applications, the Secretary of State will need to consider the potential effects of any proposed development on:
- the environmental objectives and measures within River Basin Management Plan and any supplementary plans and
- the ability of the UK to comply with the WFD, including (if applicable) the derogation provisions of Article 4.7
The Examining Authority for an NSIP application must also report on these effects and ensure the Secretary of State has enough information to decide whether the development has implications for the UK’s obligations under the WFD. This includes information in support of any derogation that may be sought.
Several National Policy Statements state that the Environmental Statement must contain information on impacts arising from the proposed development on water bodies or protected areas under the WFD and other relevant directives. See the National Policy Statements EN-1 Energy, EN-6 Nuclear, National Networks, Ports, Waste Water, and Hazardous Waste.
Regulation 5(2) (l) (iii) of the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009 (the APFP Regulations) requires applicants to provide a plan and information identifying water bodies in a river basin management plan, together with an assessment of any effects on such bodies likely to be caused by the proposed development.
Any WFD assessment must be conducted thoroughly and be easily identified amongst the application documents.
Relationship with Environmental Impact Assessment (EIA) and Habitat Regulations Assessment (HRA)
Most NSIP applications will need an EIA and often also require an HRA. Applicants should refer to the Planning Inspectorate’s Advice Pages on EIA and HRA for further information on these assessments.
The WFD assessment, EIA and HRA are separate assessments but all are integral to the application and there is a direct relationship between them.
These assessments influence decision-making in different ways:
- the WFD assessment informs the Secretary of State in relation to the duty to have regard to the River Basin Management Plan and any supplementary plans (Regulation 33 of the 2017 WFD Regulations)
- the EIA informs the Secretary of State of likely significant effects from the Proposed Development and its findings must be taken into consideration (Regulation 4(2) of the 2017 Infrastructure Planning (EIA) Regulations)
- the HRA has required stages to be followed by the decision maker when authorising development consent which can only be granted if the requirements of the Habitats Regulations are met (Regulation 28/61 of the relevant Habitats Regulations)
A WFD assessment will need to record the effects of the proposed development on the WFD objectives and relevant River Basin Management Plans. This information must be clearly identified in the application documents. and it is recommended that the assessment be submitted either as a separate report or as a separate assessment within the environmental statement.
Applicants can use the EIA scoping procedure to submit information identifying the water bodies within relevant River Basin Management Plans likely to be impacted by the development, including the methodology for assessment. This will help alert the Planning Inspectorate, the Secretary of State, and relevant consultees to the implications of the proposed development on the WFD early in the pre-application stage.
Applicants are advised to describe the methods they plan to use in their WFD assessment within their EIA scoping report.
Consultation bodies
The Environment Agency and Natural Resources Wales must comply with the WFD and are statutory consultation bodies under the Planning Act 2008. Applicants should seek the views of the Environment Agency and/or Natural Resources Wales early in the pre-application process and during examination if necessary.
Discussions may include:
- the need for a specific WFD assessment
- the scope and methodology of any WFD assessment
- the potential impact of the proposed development on water bodies within the relevant River Basin Management Plan and compliance with the objectives of the WFD
- any mitigation measures needed to ensure compliance
- the information to be submitted as part of the NSIP application to inform the tests of Article 4.7, if a derogation is necessary, which should be gathered early in the process, including at the design options appraisal stage
Applicants should use the pre-application consultation process to obtain advice from the consultation bodies. This should include confirmation that all relevant water bodies have been considered, that all potential impacts to these waterbodies have been considered and whether the requirements of the WFD have been met.
The outcome of this consultation should be recorded as part of the WFD assessment or appended to the relevant chapter of the environmental statement.
Where the Environment Agency and, or Natural Resources Wales agree that a specific WFD assessment isn’t needed, this should be reported, and the relevant consultation response provided with the DCO application.
For further information, see the Planning Inspectorate’s Advice on Working with Public Bodies.
Overview of the WFD assessment process
There is no prescribed format or process for WFD assessments. However, the Environment Agency has produced guidance on Water Framework Directive assessment: estuarine and coastal waters.
While this advice concentrates on estuarine and coastal waters in England, the guidance sets out general principles and a staged approach to assessment that the Planning Inspectorate considers can be used for other water bodies such as rivers, lakes and groundwater in England and Wales. Applying these principles should be discussed with the Environment Agency and Natural Resources Wales for each project.
Applicants should take a balanced and flexible approach, but the assessment must be comprehensive. It may be helpful to follow the three stage approach described in the Environment Agency’s guidance:
- Stage 1 WFD screening: to determine if parts of the proposed development do not require further consideration, for example activities which have been ongoing since before the current River Basin Management Plan cycle so form part of the baseline
- Stage 2 WFD scoping: to identify risks of the proposed development’s activities to receptors based on the relevant water bodies and their water quality elements, including information on status, objectives, and the parameters for each water body
- Stage 3 WFD impact assessment: a detailed assessment of water bodies and their quality elements that are likely to be affected by the proposed development
If the water bodies might deteriorate, and it’s not possible to mitigate the impacts, the project would need to be assessed in the context of Article 4.7. Where a derogation is needed, applicants must provide the required information to justify their case whilst demonstrating they have sought to avoid deterioration of the water body or bodies. The Secretary of State will consider whether derogation is justified for the proposed development.
The WFD screening and any subsequent WFD should begin early in the pre-application process and should be conducted in consultation with the Environment Agency and/or Natural Resources Wales. Early discussions are particularly important to inform the evidence gathering process. This includes any survey, monitoring and assessment work to establish the baseline conditions. Surveys should be timed to ensure enough data can be collected in order to complete the assessments before any DCO application is made.
Figure 1 provides an overview of the recommended assessment process.
WFD Stage 1 Screening
Screening should identify the extent to which the proposed development is likely to affect water bodies. Where impacts are ‘screened out’ from further assessment, this should be clearly justified.
The screening stage should:
- show all relevant WFD water bodies on a map or plan
- identify the zone or zones of influence based on specific activities and/or characteristics of the proposed development that could affect the identified water bodies and
- identify any specific activities and/or characteristics of the proposed development that have been screened out and why
Applicants should share the screening findings with the Environment Agency and/ or Natural Resources Wales (the consultation bodies). They should provide written summaries of the views of Environment Agency and/ or Natural Resources Wales and the extent to which the conclusions are agreed between the parties. This should be included with the NSIP application. If this information is not provided with the application, it is likely to be requested during examination.
Screening may find that no further consideration of WFD matters is needed. For example, where water bodies are not located within the development’s zone of influence or where no impact pathway exists. It is for applicants to provide sufficient evidence to demonstrate this supported by agreement with the consultation bodies.
It is important to review decisions taken at the screening stage periodically to account for any further detailed information about the proposed development as it becomes available.
WFD Stage 2 Scoping
After screening, applicants should agree the scope of further assessment with the consultation bodies and evidence this as part of the reporting process and application documents.
The scoping stage should involve:
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an initial assessment to identify the risks from the proposed development to receptors within the zone of influence, based on the relevant water bodies and their water quality elements
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identification of those water bodies where a more detailed impact assessment is needed
Applicants should share the findings of their scoping exercise with the consultation bodies. As with the screening stage, they should provide written summaries of the conclusions, and the extent of agreement reached with the consultation bodies, with the NSIP application. If this information is not provided with the application, it is likely to be requested during examination.
WFD Stage 3 Impact assessment
The impact assessment is a detailed assessment of the water bodies and activities carried forward from the WFD screening. It should be set within the context of the appropriate River Basin Management Plans and should include:
- identification of water bodies that are potentially affected, directly or indirectly, or at risk from proposed development
- the baseline characteristics of the water bodies affected
- a description of the proposed development and the aspects of the development considered within the scope of the WFD assessment
- the methods used to determine and quantify the scale of WFD impacts
- an assessment of the risk of deterioration, where Article 4.7 may apply if the proposed development may risk deterioration in status or prevent achievement of good status
- an explanation of any mitigation required and how it is secured
- an explanation of any enhancements and/or positive contributions to the River Basin Management Plan objectives proposed and how they would be secured
- where a derogation is required, information to justify the case for derogation and
- identification of any areas of non-compliance
Identification of Water Bodies
The WFD impact assessment should clearly identify each water body that is likely to be affected by the proposed development and present them on a plan in line with the APFP Regulations.
A table should be used to include the relevant baseline information, stating whether the water body is a river, lake, reservoir, stream, canal, transitional, coastal or groundwater body. Any designated artificial water bodies or Heavily Modified Water Bodies as defined in Articles 2.8 and 2.9 of the WFD), should be included in the table.
The WFD assessment should describe the characteristics of each water body likely to be affected by the proposed development, including the current classification status for all elements. The classification status should also cover the hydromorphological status, for each affected water body.
The assessment should clearly explain the pressures already affecting the water body and its sensitivity to any change, as described in the River Basin Management Plan.
Surface water bodies
The status of surface water bodies is determined by their ecological and chemical status, having regard to the following elements:
Ecological status
- biological quality
- general chemical and physicochemical quality
- hydromorphological quality
- specific pollutants with UK Environmental Quality Standards
Chemical Status
- priority substances and other EU level substances under the EU’s Environmental Quality Standards
There are sub-elements to each of the ecological status criteria. For example, biological quality is determined by consideration of phytoplankton, macroalgae, fish and invertebrates. The hydromorphological quality is only a supporting element in determining the ecological status and is not considered in the overall status classification, unless it is needed to identify between ‘high’ and ‘good’ overall status.
The lowest classification of the ecological status, including sub-elements, and chemical status is used to determine overall status of the water body. This is sometimes referred to as a ‘one out all out’ principle.
For Artificial Water Bodies and Highly Modified Water Bodies, a separate classification process applies because these bodies cannot reach good ecological status given their socio-economic use for a particular purpose under Article 4.3. The classification of Artificial Water Bodies and Highly Modified Water Bodies ‘ecological potential’ is determined by:
- identifying the impacts affecting the waterbody
- identifying the mitigation measures necessary to ensure the hydromorphological characteristics of a water body are consistent with ‘good’ or ‘maximum’ ecological potential
- assessing whether those measures have been implemented in overall determination of ‘ecological potential’
Groundwater bodies
Groundwater status is set by having regard to both quantitative status and chemical status.
A description of the proposed development, consistent with the draft Development Consent Order, should be included within the assessment or cross-referenced to the relevant description in the Environmental Statement or other application documents. Aspects of the development that may not affect water bodies should be set out in the description and clearly identified as screened out of the assessment.
Important aspects of a WFD impact assessment
The assessment should:
- quantify the scale of any impacts likely to occur in the geographical extent, such as which water bodies fall within the zone of influence, and the magnitude of change, such as any deterioration of an element within a status class and, or between status classes
- explain and justify the methods used to assess impacts, as well as providing reasons for any assumptions or professional judgement applied and the supporting evidence base
Ideally, the information provided as part of any EIA scoping request will give an early indication of the likely methods to be used and should help inform the WFD methodology.
An assessment of the risk of deterioration
The assessment of the risk of impact to water bodies should have regard to its specific elements and objectives. The assessment should identify if there is a risk of deterioration of an WFD element and should be supported by a comprehensive evidence base.
The EU Court of Justice in Bund fur Umwelt und Naturshutz Deutschland eV v Bundesrepublik Deutschland [2015] EUECJ C-461/13 found that the WFD precludes the authorisation of individual projects which may cause the deterioration of the status of a body of water, unless a derogation under Article 4.7 is justified. Activities which jeopardise the attainment of ‘good’ overall status are also precluded from authorisation.
The Court advised that ‘deterioration of status’ is established as soon as the status of at least one of the quality elements falls by one class. This is even if the change does not result in a fall in classification of the water body as a whole. This applies unless the water body is already in the lowest status class, in which case any deterioration is deterioration in status under the WFD.
Applicants should clearly identify any predicted deterioration in status in any of the quality elements within water bodies.
An explanation of the mitigation required and how its implementation is secured
If mitigation is needed to ensure no risk of deterioration of water bodies because of the project, this should be identified in the WFD assessment. Any mitigation should be explained with a prediction of its likely effectiveness and an assessment of any residual effect.
The assessment should also explain the type of mechanisms to be put in place to secure the implementation of such mitigation, including reference to any Development Consent Order requirements, deemed marine licence conditions, or other legally binding methods with timescales for implementation.
An explanation of any enhancements and, or positive contributions to the River Basin Management Plan objectives proposed and how their implementation would be secured
Applicants should also describe any enhancement measures or positive contributions that the project can provide in respect of the objectives in the relevant River Basin Management Plan. These should be set apart from any necessary mitigation measures. Their method and timescales of implementation, as well as how they would be secured, should also be explained.
Derogations
Article 4.7 of the WFD allows derogation from the Directive. Where its requirements are met states can fail to achieve the objectives or cause a deterioration in status.
This Article only applies to:
- new modifications to the physical characteristics of a surface water body, or
- alterations to the level of bodies of groundwater, or
- deterioration from high to good status for surface water bodies related to new sustainable human development activities
Derogation is only allowed under strict conditions set out in Article 4.7 of the WFD. Any reliance on derogations should be a last resort.
In addition, development must not permanently exclude or compromise achievement of the WFD objectives in other bodies of water within the same river basin district and must be consistent with the implementation of other EU environmental legislation (Article 4.8).
In applying Article 4.7, steps must be taken to ensure the new provisions guarantee at least the same level of protection as the existing EU legislation (Article 4.9).
The Article 4.7 tests require often complex evidence to be made available and assessed. It is important that the requirement for derogation is considered as early as possible at the pre-application stage.
The Environment Agency and Natural Resources Wales will be able to provide advice on the required information to inform these tests. The Planning Inspectorate advises that applicants should seek comments from these bodies on draft documents during the pre-application process where the Article 4.7 tests would be engaged.
Applicants will need to provide the information for the Secretary of State to determine if an application meets the tests and whether a derogation is justified.
All four tests must be satisfied:
Test (a)
All practicable steps must be taken to mitigate the adverse impacts on the water body concerned.
The case for a derogation should explain all steps taken to mitigate the adverse impacts on the status of the affected water bodies from the proposed development. It must consider the whole lifecycle of the development, from construction, operation, to decommissioning. The means of securing the proposed mitigation measures in the Development Consent Order should be identified. Applicants should consult with the Environment Agency and, or Natural Resources Wales as to whether the proposed mitigation measures can be implemented.
Test (b)
The reasons for modifications or alterations are specifically set out and explained in the River Basin Management Plan.
The Secretary of State must be satisfied under Article 4.7(b), that any alterations or modification to water bodies that require derogation would be capable of being reported in the relevant River Basin Management Plan.
Test (c)
This sets out that:
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there is an overriding public interest in the proposed development and/ or
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its benefits outweigh the benefits of the WFD objectives
Applicants must provide evidence as to why they consider the proposed development is justified by:
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overriding public interest and, or
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that the benefits of the project to human health, human safety or sustainable development outweigh the benefits of achieving the WFD objectives
If the proposed development satisfies (c)(1) and (c)(2) tests, applicants could provide information to support both cases even though only one part of the test needs to be satisfied.
Test (d)
The benefits of the project cannot be achieved by a significantly better environmental option.
Applicants must show that the beneficial objectives of the modifications or alterations to the water body made by the development cannot be achieved by other means that are:
- a significantly better environmental option
- are technically feasible
- do not lead to disproportionate cost
For example, this can include alternative locations, different scales, designs of development, or alternative processes.
The Scottish Environment Protection Agency (SEPA) has provided guidance (SEPA Supporting Guidance (WAT-SG-68) Assessing Significantly Better Environmental Options (2016)) stating that an option may be a significantly better environmental option if:
- the benefit it provides is at least equivalent to the benefit that would be provided by the proposal
- its environmental cost is significantly less than the environmental cost of the proposal (the SEPA would assess the environmental cost of a proposal by identifying the significance of its adverse impacts using the method set out in WAT-SG-67: Assessing the Significance of Impacts – Social, Economic, Environmental (SEPA Water Use Supporting Guidance (WAT-SG-67)
- it is economically viable and a realistic option
Applicants should contact the Environment Agency and, or Natural Resources Wales for any other guidance or advice for projects in England and Wales.
Presentation of Information
The Planning Inspectorate has produced WFD matrices at to help applicants provide the information likely to be needed in examination.
Completed draft matrices can be provided, along with other relevant information, as part of a request for an EIA scoping opinion to address the requirements in legislation.
The matrices provide an overview of an applicant’s approach to the WFD and the screening and compliance assessment stages and can help during the acceptance process. However, the matrices don’t replace the need for the provision of full information contained in an applicant’s WFD screening and assessment report. The matrices should cross-reference to relevant parts of that report.
The matrices should:
- identify each River Basin Management Plan that could be affected by the proposed development and each water body within the relevant plan likely to be affected
- indicate which water bodies have been screened out of, and which have been carried forward to a detailed WFD assessment
- for each water body carried forward for a detailed assessment, provide a summary position of the assessment and act as a useful point of reference during the acceptance review stage and during examination
- provide a summary of water bodies where deterioration in the status and, or class of an element is predicted or where achievement of the WFD objectives may be impeded by the development
- identify any WFD water bodies and elements which are carried forward to consideration of Article 4.7 derogation
Other Resources
The European Commission has produced a series of WFD guidance documents and technical reports under the Common Implementation Strategy (CIS) to assist stakeholders to implement the WFD.
This guidance is intended to provide an overall methodological approach. Though they need to be tailored to the specific circumstances of each EU Member State, applicants are advised to take into account such guidance when undertaking their assessment of the WFD.
The UK WFD Technical Advisory Group (UKTAG) is a partnership of UK government agencies set up by the UK WFD policy group, created to provide coordinated advice on scientific and technical aspects of the WFD.
UKTAG considers available scientific and technical information, as well as commissioning research into specific areas, in developing recommendations for WFD practice in the UK. These are made available as part of their online resources. The different UK government administrations then consider whether to adopt the UKTAG’s recommendations.