impact of european union environmental law on …

IMPACT OF EUROPEAN UNIONENVIRONMENTAL LAW ON DREDGING

FREDERIK MINK, WOUTER DIRKS, GERARD VAN RAALTE, HUGO DE VLIEGER AND MARK RUSSELL

ABSTRACT

In certain aspects of environmental lawthere is a potential friction between EUDirectives and international conventions. In these cases, international conventionshave priority over EU law because theyconstitute treaties between sovereignnations. Thus when the question arises, “Is dredged material waste or not?”, the answer may not always be the same.The European Commission has consistentlyargued that dredged material is a form of“waste” since the holder attempts to getrid of it. The industry, as represented by theEuropean Dredging Association, maintainsthat dredged material is foremost a naturalresource that should be kept in itsenvironmental compartment. Since thisdifference is apparently a long way frombeing resolved, another question arises:Can the dredging community live with theEU waste hierarchy principles as such?

The answer as far as the waste hierarchy isconcerned is a mitigated “yes, providedthat the national authorities understand theissue”. Moreover, for marine waters wherethe bulk of dredging takes place anyway,the framework established under theumbrella of the London Convention has

priority over EU law and is also morehelpful to the sector. Other Directives onenvironmental protection, in particular theHabitats and Birds Directives, causeadministrative nightmares and lead todelays or cancellation of projects and toincreased costs.

INTRODUCTION

The European Dredging Contractorsestablished the European DredgingAssociation (EuDA) in 1994 as a tradeassociation for contacts with Europeaninstitutions; this includes influencing andtracking EU law that might impact thedredging sector. Amongst the areas where EU legislation affects the industry,environmental law has taken a prominentrole. The EuDA Environment Committeehas recently prepared a comprehensivereview of European environmental rulesand their impact on the practice ofdredging and dredged material disposal.This article presents a summary of thefindings.

ON INTERNATIONAL LAW

The European Union is formed by acommunity of nations that have agreed byTreaty to transfer legislative and executivecompetences in a number of domains to a supranational level. Environmental law is an area where EU competences are farreaching because it was recognised early onthat environmental problems and pressuresdo not stop at national borders, but are feltcommunity wide.

EU law is in essence built on three types ofinstruments:• Framework Directives (the term of

Directive is equivalent to a law in nationallegislation) define a general approachwhich sets a number of boundaryconditions and constraints and have to be implemented by each member state in accordance with its specificcircumstances. Certain provisions of aFramework Directive may also be detailedin a later stage at the European level andmade effective by other legal instruments.When the instrument of a Directive isused in such a case, one speaks of aDaughter Directive.

• Directives are equivalent to laws and arebinding on the member states, except for

Above, Beach replenishment along the Dutch coast

where water, sand and birds intermingle and EU

Directives on Birds and Habitats pertain.

Impact of European Union Environmental Law on Dredging 3

4 Terra et Aqua | Number 104 | September 2006

the fact that they first have to be“transposed” into national law. This poses a particular problem: Some member states have a tendency to transpose (environmental) EU law in a very strict and stringent manner,while others tend to follow the minimumrequirements of the Directive.

• Regulations are legal decisions taken at EU level that are binding as such forthe member states and do not needtransposition. They usually concern moretechnical details on which there is nomajor disagreement.

It may be clear that the EU law has thepotential to deeply influence nationallegislation; also clear is that the resultinghierarchy of rules and regulations isanything but simple, while the transpositionmechanism often results in the oppositeeffect of what was intended: In severalcases transposition creates importantdifferences in national law. Moreover, theimpact of a particular EU law frequently hasto be tested before the Court of Justice inorder to assess its judicial limits.

The next question to be raised is: how doInternational Conventions and Treatiesrelate to EU law and to national law?

International Conventions, such as theLondon Convention which was establishedunder the umbrella of the IMO, but alsothe Oslo-Paris (OSPAR) Convention for theAtlantic and the North Sea, are agreementsbetween sovereign nations; each nationdecides independently whether or not toratify a particular Convention. When acertain number of countries have ratified aConvention, it can become international

law. As the ratification is done by sovereignstates, the EU as a supranational body doesnot play a role. Consequently, InternationalConventions have priority over EU law. As will become evident, this may lead to friction between the rules at theinternational and supranational levels.

Figure 1 illustrates the situation and listsalso a number of advisory bodies and/orguidance documents that are helpful, but are not legally binding.

EU law and dredged materialEU law does not deal specifically withdredged material, nor is there any intent to do so. Nevertheless, a number of EUDirectives have an impact on themanagement of dredged material, eitherdirectly or indirectly. Figure 2 presents anoverview of the structure of the relevantregulations and the relationship betweenthe various Directives.

The conclusion is that relevant rules can be grouped under the three headings ofwaste, water and habitat protection. Of these three, the Waste FrameworkDirective and related Directives occupy themost discussion time, since a great dealdepends upon defining what constituteswaste and, subsequently, on the limits ofcompetence of the regional seasconventions versus EU law.

Figure 1. Hierarchy of legislation.

Fram

ewo

rk

Dau

gh

ters

Draft Under revision

Agriculture Industry

E U

LE

GIS

LAT

ION

N

AT

ION

AL

CO

NV

EN

TIO

NS

Un

der

um

bre

lla

WATER FRAMEWORK DIRECTIVE 2000/60/EC

WASTE FRAMEWORK DIR. 75/442/EEC +

91/156/EEC

GROUND WATER

80/68/ EEC

VARIOUS WATER

QUALITY

SHIPMENT 2006/xx/EEC

LANDFILL 99/31/EC

WILD BIRDS 79/409/EEC

HABITAT DIRECTIVE 92/43/EEC

HAZARDOUS WASTE

91/689/EEC

MINING+ EXTRACTION 2006/xx/EC

SEWAGE SLUDGE

86/278/EEC

Ramsar Convention for Wetlands

Basel Convention on export of

Hazardous Waste

London, OSPAR, Helcom, Barcelona Conventions

Under revision

NITRATES DIR. 91/676/EEC

INT. POLL. PREVENTION

CONTROL 96/61/EC

Under revision

Figure 2. Overview of the structure of the relevant regulations and the relationship between the various Directives.


WASTE FRAMEWORK DIRECTIVE

The Directive establishes a hierarchy, a strategy for prioritising management of “waste” as follows:a) Preventionb) Re-usec) Recycling d) Processing or recovery e) Disposal

“Waste” is defined as “any substance orobject which the holder discards or intendsto discard”. Under this very broad definitionthe European Commission has consistentlyargued that dredged material is a form of“waste” since the holder attempts to getrid of it. So far this discussion has not beenvery fruitful: The industry as represented bythe EuDA maintains that dredged materialis foremost a natural resource that shouldbe kept in its environmental compartmentand that this does not in itself cause thematerial to become a form of waste.

FREDERIK MINK

joined Interel in 2005 as a Senior

Consultant with a focus on transport,

energy and environment. For 10 years he

was secretary-general of the European

Dredging Association (EuDA). Prior to

this he worked for over 20 years for

Westinghouse Corporation’s nuclear

division.

Basically, it is difficult to understand why amaterial that can be “re-used” in the sameapplication as where it was found should becalled waste in the first place (see Box for acase study).

As a clear definition apparently has not yetbeen found, the question becomes: Can thedredging community live with the EU wastehierarchy principles as such? With this inmind the EuDA Environment Committeehas developed an approach in the form ofa decision logic diagram in line with theestablished “waste” hierarchy. A distinctionbetween marine water and fresh waterdredging has also been made since theconstraints are somewhat different. These distinctions are presented in Figures 3and 4. In both cases the logic sequence ofthe waste hierarchy is followed.

Marine water dredgingThe fact that the regional sea conventionsdefine their own limits of jurisdiction was

WOUTER DIRKS

graduated in 1990 from Technical

University Delft, the Netherlands. He then

joined Ballast Nedam working on inter-

national construction projects. Since

1995 he has worked in the dredging

industry and is now employed by Van

Oord where he is now lead engineer

environmental issues. He is chairman of

the Environment Committee of EuDA.

GERARD VAN RAALTE

graduated in 1976 with a MSc in civil

engineering from Technical University

Delft, the Netherlands. After working at

GeoDelft and Breejenbout, he joined

Boskalis’ in-house engineering department

Hydronamic in 1986 where he is now a

Project Engineer. He is a member of both

the EuDA Environment Committee and

CEDA Environmental Steering Committee.

HUGO DE VLIEGER

joined the Belgian-based DEME Group

in 1973, where he presently fulfils a

number of top-level functions: Chairman

of the Board, DEC NV; General Manager,

Baggerwerken Decloedt & Zoon;

Managing Director, CVBA Fasiver and

NV Silvanmo; and Chairman, Management

Committee De Vries & van de Wiel BV.

EU Stratery

Pre

ven

tio

n

NEED FOR DREDGING?

Re-use

Dis

po

sal

CONFINED DISPOSAL

Processing

Relocation at selected locations

Beneficial use

Placement in environmental comp.

Treatment

Aquatic

Upland

Re-u

se

Recy

cle

<1%

N

N

Y

Y

<5%

<5%

>5%

<5%

+/- 80%

N.-B.: the annual volume of dredged material in the marine environment is estimated at 200-250 million tons/year for the EU. The % in the diagram indicates roughly the estimated breakdown.

Figure 3. Decision logic diagram for dredged material in a marine environment.

MARK RUSSELL

is Director of Marine Aggregates for

the British Marine Aggregate Producers

Association, the trade association for

the UK marine aggregate sector. He has

been involved in the industry for over

10 years, working for the largest British

producer, Hanson Aggregates Marine,

before moving to BMAPA five years ago.


carefully considered. For the OSPARConvention the limit is the tidal influence in the tributaries. Disposal of dredgedmaterial is dealt with in essence under theDredged Material Assessment Framework(DMAF) which was developed for theLondon Convention and has been reviewedin Terra et Aqua (Burt and Fletcher, nr. 66March 1997) previously. The OSPARConvention clearly has no competenceconcerning upland disposal or for beneficialuse applications outside the marinecompartment. As the Conventions acceptthe placement of dredged material backinto the marine waters, the conclusion wasdrawn that EU law has hardly any impacton the dredging process in marine andcoastal waters, except when heavilycontaminated materials are involved. Figure 3 shows the quantities and thebreakdown into categories.

At this point one faces the potential frictionbetween international law under theConventions and EU law as a supranationalbody of rules. The first question to ask

concerns the territorial limits of competenceof EU environmental law. There is nosimple, nor single answer to that question,but the Water Framework Directive (seebelow) claims jurisdiction roughly until onemile beyond the coastline. However,international law supersedes EU law andthe jurisdictional boundary of the OSPARConvention and other regional conventionsextends well inland. The EuDA EnvironmentCommittee therefore takes the positionthat for marine dredging the internationalconventions apply as implemented bynational law and EU law only may applywhen nothing is foreseen in theseconventions. Since the conventions acceptthat dredged material is put back into thewater body, unless it is too contaminated,the Environment Committee concludes thatfor dredging in marine waters current EUlaw may only be relevant to the confineddisposal of dredged material on land.

Figure 3 shows the quantities of dredgedmaterial and the assignment to thecategories in the waste hierarchy.

The conclusion is that overall some 5-10%of the dredged material may be socontaminated that it needs to be disposedof in a confined facility. At this point in thereview the question arises whether disposalsites fall under any specific EU wastelegislation and if so which ones.

The answer is that upland disposal would becovered by the so-called Landfill Directive,which introduces stringent isolationrequirements and leads to considerableexpense. Landfill sites are typically notintended for the disposal of dredgedmaterial, but in some cases there is noalternative available. In most countriesconcerned this applies only to a minutefraction of the dredged material.

So what about sub-aquatic disposal sites?These are clearly not covered by specific EUrules and must be regulated at the nationallevel. Fundamental to the assessment stated above is the consideration thatplacing dredged material back into itsenvironmental compartment is a form of re-use that is in principle beneficial for theenvironment. In fact, it is particularly helpfulin maintaining the sediment balance.

Fresh water dredgingWith respect to fresh water dredging, one must recognise that the Conventionsno longer play a role, but that the WasteFramework Directive applies. The sameapproach can be followed as for marinewaters, since in both cases the wastehierarchy is respected. The resultinginteraction with other EU legislation such as the Water Framework Directive may bestronger. In terms of the decision logic thefollowing “disposal” modes were considered:

• Beneficial use:– as fill material– as construction material– for soil improvement of agricultural land

• Relocation:Placing dredged material at specificlocations in the environmentalcompartment so that it fulfils its role inthe sediment balance.

EU Stratery

Pre

ven

tio

n

NEED FOR DREDGING?

Re-use

Dis

po

sal

CONFINED DISPOSAL

Processing

Relocation at selected locations

Beneficial use

Placement in environmental comp.

Treatment

Aquatic

Upland

Re-u

se

Recy

cle

UPLAND

AQUATIC

<30%

N

N

Y 40-50%

Y +/- 30%

Y +/- 20%

Y 10-20%

Y

N.-B.: the annual volume of dredged material in the fresh water environment is estimated at 50-60 million tons/year in the EU. The % indicates the estimated breakdown.

Figure 4. Decision logic diagram for dredged material in a fresh water environment.


• Placement:The disposal of dredged material atsuitable disposal locations.

• Processing:– separation of sand and silt– manufacturing bricks or basalt– biological treatment to reduce

contaminant level– dewatering, ripening– land farming – and more…

Direct impact of specific waste legislation isin this case limited to the Landfill Directive

Figure 5. Where does the Water Framework Directive apply? In the northern Netherlands, a branch of the Rhine, the River IJssel, carried contaminated silt into Lake Ketelmeer

where it settled into the bed. In an action to clean-up the waterway, the IJssel-oog (eye) repository was constructed for safe storage of contaminated dredged materials.

which establishes the (stringent) provisionsfor the landfill sites, but which alsorecognises that disposal of dredged materialalong waterways, on agricultural land or atsuitable subaquatic locations are acceptablesolutions, as long as contaminants remainbelow certain limits. The Landfill Directivethus provides a number of escape routesthat help to avoid disposing dredgedmaterial in landfills. Some member stateshave recognised these possibilities in theirnational rules, but others appear to focusmore on the isolation provisions for landfillsites, thus adding to the cost of dredgedmaterial disposal.

ContaminantsThe last aspect to be discussed under thisheading concerns the contaminants.

The European Commission will not set anyspecific limit values for dredged material;this is left to the member states. The onlyquantitative values that have been aroundare limits set in a separate Sewage SludgeDirective; for lack of other standards thesehave sometimes been quoted in connectionwith dredged material. However, thesevalues are currently being revised since theyare too high and they are not actuallysuitable for dredged material.


Member states have been requested underthe rules of the OSPAR Convention orequivalent, to set limit values for seadisposal of contaminated dredged material.As a consequence one can find a widerange of classification systems andthreshold values in some member states,while other countries are of the opinionthat dredged material does not lend itselfto setting limit values for individualsubstances and should be assessed on a case by case basis.

WATER FRAMEWORK DIRECTIVE

The Water Framework Directive, whichbecame European law in 2000, has as itsgoal to gradually improve the quality ofEuropean waters to some standard whichmay be called “good”. This objective is verylaudable, but the way to get there is stillvery much under discussion amongst theCommission, the member states and thestakeholders.

The question raised here is: Could thisDirective possibly be a constraint fordredging operations? In the implementation

Figure 6. Completion of the Ketelmeer clean-up led to better access to the River IJssel, which resulted in clean materials to create De Kreupel, a 70 ha bird sanctuary.

process of the Water Framework Directive(which is foreseen to last some ten years), it has been repeatedly emphasised that thislaw has a long-term goal. It is recognisedthat water quality varies considerably overtime and as a function of physicalparameters, chemical conditions, biologicaland ecological factors as well ashydromorphological boundary conditions.Obviously it is no easy task to cast such aframework into detailed implementationmeasures and therefore a series ofquestions arises:• Will there be constraints on dredging

operations in ports where the risk ofreleasing contaminants from silt cannotbe excluded?

• Is short-term deterioration of waterquality resulting from operationalinterventions and maintenance practicesan issue?

• How should one deal with the interactionbetween water and sediment?

• Can one legislate water quality withoutsetting boundary values for sediment?

• How should changes in hydromorphologyowing to infrastructure works beassessed in terms of their impact onwater quality?

Even though these questions can beconsidered reasonable, it is too early toprovide answers since the relevant RiverBasin Management strategies and theDaughter Directives are still underdevelopment. Much will depend on theconsideration of variability over time: does exceedance of established qualitystandards, e.g. for TBT, matter if the annualaverage is within the limits? How can thelegislator deal with the weak links betweenchemical quality and hydromorphology?

In the implementation process it has beenrepeatedly stated that the Directive is notintended to interfere with normaloperations and maintenance practices ofwaterways and ports. This will be translatedinto guidance for selection of sampling andmonitoring points remote from areas ofactivity and in establishing quality standardsthat recognise (some) variability in theaquatic environment.

The conclusion of this committee is thatmaintenance dredging will probably not be affected by this Directive, but thatcapital dredging may become even moreconstrained in water bodies falling under its


waters by 2021. It also claims competenceto regulate the status of the seabed and its subsoils. Currently good environmentalstatus is not defined, but by analogy to theimplementation of the Water FrameworkDirective one can assume that it will beestablished on the basis of a series ofparameters, including physical and chemicalconditions, biological and ecologicalprocesses, physiographic and geographicfactors. In the wake of such an approach it is clear that the European Commissionattempts to establish jurisdictionalcompetence over the wider marine environ-ment, where currently only internationalbodies like OSPAR and the respectivemember states are competent to regulate.

The discussion on the Marine Strategy is in anearly stage and it is expected that memberstates will be reluctant to give up their exclusive

scope. One may also foresee new businessopportunities for environmental dredging inwater bodies where historic contaminationneeds to be removed in order to meet theecological objectives (Figures 5, 6 and 7)

HABITATS AND BIRDS DIRECTIVES

These two Directives aim to protectbiodiversity and rare biotopes and species.The implementation process has led to theestablishment of an ecological network acrossEurope called Natura 2000. Natura 2000consists of designated “special areas ofconservation” under the Habitats Directiveand “special protection areas” under theBirds Directive most of which would beinterconnected via corridors or other meansof protection. Why would these Directivesimpact dredging?

The reason is that coastal ports and harboursare very often located at, near or adjacent toNatura 2000 sites. This imposes on portsmany restrictions in case they want toexpand their site area or when they wish tobuild new infrastructure. In short portdevelopment projects face severe delays andincreased costs, in particular when situated atthe mouth of estuaries. Similar observationscan be made for infrastructure developmentalong valuable stretches of coastline.

The consequences for the dredging sectorare likely to be indirect, but significant. The European dredging industry hasnoticed increasing problems with permitsfor infrastructure development in themarine environment and it faces increasingmonitoring requirements in sensitiveenvironments. A number of importantinfrastructure development projects haveeven been cancelled. Other impacts wouldentail such things as the presence ofdesignated marine sites near ports, wheredisposal is not permitted; delays ininfrastructure projects near designated sitesand problems with establishing acceptableforecasts for habitat impact studies.

Again, there are also opportunities: TheHabitats Directive foresees the possibility toprovide compensation measures if valuablenature would be threatened owing to

project development. The dredging sectorcan often be of considerable help increating new nature sites near thedevelopment area. This can take the formof artificial islands, extended beaches andberms or habitat restoration through the re-creation of mudflats and salt marshes.

MARINE STRATEGY

The European Commission published aThematic Strategy on the Protection andConservation of the Marine Environmentin October 2005 (see http://ec.europa.eu/environment/water/marine.htm). This iscurrently a document for discussion, but mayhave repercussions on dredging in a moredistant future. The strategy and the resultingproposed Directive aim to achieve “goodenvironmental status” of European marine

Figure 7. Also created from clean fill is an 800 ha nature reserve

at the mouth of the IJssel (IJsselmonding).


jurisdiction over marine zones. The followingquotes give an indication of the intentionof the European Commission on the role itwishes to play in the marine environment:• “Many of Europe’s regional seas are the

subject of international conventions anda number of these have made excellentcontributions to the marine protection.However, these conventions have fewenforcement powers and thiscompromises their effectiveness inachieving agreed goals.”

• “In order to build on progress madethrough the existing institutions, policiesand conventions and to take action tomake further progress, there is a need toformulate a clear, overarching vision forthe marine environment and associatedpolicies. A strong EU policy on marineprotection will complement and bolsterthe current patchwork of institutionalarrangements by providing a legallyenforceable framework (…).”

The impact of the Water Framework cannotyet be established in full, but it is likely to have mainly indirect effects as a result of complicating project development. Direct effects may result from additionalmonitoring requirements during projects andafter completion as imposed by the respectivepermitting authorities in member states.

The conclusion with respect to dredgingoperations in relation to the Habitats andBirds Directives is: their effects will bemainly indirect but not insignificant. The effects of this legislation can lead tosignificant delays in project approval andalso to important increases in costs causedby extended needs for impact assessment.Of particular concern to the industry is thefact that impact assessment for ecologicaleffects in marine waters may be verydifficult, since the environment is sodynamic, and thus lead to further delays in the approval process.

CONCLUSION

The conclusion of this assessment by theEuDA Environment Committee is that theimpact of EU environmental legislation onthe dredging sector is fundamental withrespect to the question of dredged materialmanagement and priorities, but is restrictedwhen it comes to detailed implementationrules. The main impact results from theLandfill Directive, but even here muchdepends on the way the member stateconcerned has transposed this piece oflegislation into national law. Especially formarine waters, where the bulk of dredgingtakes place anyway, the frameworkestablished under the umbrella of theLondon Convention has priority over EUlaw and is also more helpful for the sector.

The Marine Strategy may in the futureundermine the exclusive competence of theinternational conventions.

CASE STUDY

That the lofty definition of “waste” in EUlegislation can lead to lengthy and ratheruseless debates may be illustrated by arecent case involving the Port of LondonAuthority (PLA) and the EnglishEnvironment Agency (EA).

The PLA intends to carry out dredging inthe River Thames Prince’s Channel in viewof increasing the navigational depth and itplans to use the dredged sand to improvea nearby construction site. EA has takenthe view that the material resulting fromdredging is waste according to the WasteFramework Directive and should thereforemeet stringent requirements when it isdisposed of on land. The EA does not wishto recognise the fact that clean sand canbe used beneficially as constructionmaterial. The case was submitted to LordKingsland for a legal ruling.

The Right Honourable Lord, rather thanstating something like “don’t be silly”, or“let’s use common sense”, or even “what’s

in a name?”, had to review the case lawproduced by the European Court on theseand similar matters and based thereonproduced a long argument whichconcludes that:

1. “the dredged substance [from thePrince’s Channel] is [not waste, but] aproduct, or at least a by-product;

2. if, nevertheless [the interpretation of the Waste Framework Directive wouldconclude that] it is initially waste, then it is fully recovered when it becomesphysically identifiable as a product (….)once it is in the hopper of the dredger”.

The reader will notice that in the legal senseit makes significant difference at which stepin the waste hierarchy one finds oneself.Lord Kingsland draws the conclusion that,once dredged material is targeted for re-use,recycle or recovery, it is no longer waste, or ithas never been waste in the first place.These conclusions are in fact based on a verystrict reading of the definition (“Waste is any

substance or object which the producer orthe person in possession of it discards orintends to discard”.). The interpretation thushinges on the meaning attributed to“discard”. Lord Kingsland, after a lengthyreview of the jurisprudence, concludes that,as long as the holder of the material intendsto re-use or recycle, it never becomes wasteon the way; if the material is intended to berecovered there is some leeway for inter-pretation. Lord Kingsland is of the opinionthat it still does not become waste, but evenif it is considered to become waste, the partthat is recovered turns into a “product” or a “by-product” and is no longer waste.

Only material that the holder explicitlyintends to discard, or is forced to discard, isthus “waste” under the definition. A longargument is probably not necessary toconclude that this kind of reasoning is sosubtle and sophisticated that the dredgingcontractor no longer feels at ease. Nor forthat matter does the European DredgingAssociation.

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