Poikkeaminen vesienhoidon ympäristötavoitteista uuden hankkeen takia

Since being established with the Water Framework Directive (the WFD, 2000/60/EC) the water management regime in the EU has been troubled by a persistent uncertainty in regard to the normative weight of the environmental objectives of the WFD. The dispute was settled by the ECJ’s case C-461/13 in which the Court ruled that the Directive is not only a tool for management planning but that also Art. 4(1)(a)(i) sets legally binding environmental objectives and a requirement of non-deterioration according to which the quality of surface water bodies in the Union shall not deteriorate from the status quo. Art. 4(7) of the WFD creates a possibility to grant a derogation from both the norms. This derogation regime is now of utmost interest, since without an exemption an otherwise fully authorised novel undertaking must be abandoned. Finnish water and environmental law still considers the WFD as a planning instrument. This article examines what kind of amendments might be needed to avoid inconsistency with the newly established EU law. After contextualising the topic by glancing at other solutions to tackle the inherent flexibility of adaptive management—that makes it an ill match with legal formalism, which expects predictability and certainty—the scope and need for a derogation are explained. Since exemptions are not covered much in the draft documents, the Commission’s advisory proceedings or the literature, in order to explore the substantive side of the topic an example is taken from the Habitats Directive and its use of exemptions. An interesting dilemma is created by the facts that novel undertakings are initiated constantly and the programmes of measures—that include the environmental objectives—are resolved only every six years. This issue is addressed by focusing on the procedural side through attempting to establish the possible administrative procedures that might be used when revising Finnish legislation in order to meet the new normativity of the WFD. Two alternative ways of revising the legislation are suggested: either by amending the pieces of legislation regulating the permitting procedures, that is the Water Act and the Environmental Protection Act, or by amending the law with which the WFD was implemented. The choice between the possible authorities responsible for the decision-making is also examined.