Impact of European Union Environmental Law on Dredging 3

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

IMPACT OF EUROPEAN UNION ENVIRONMENTAL LAW ON DREDGING

ABSTRACT priority over EU law and is also more ON INTERNATIONAL LAW helpful to the sector. Other Directives on In certain aspects of environmental law environmental protection, in particular the The European Union is formed by a there is a potential friction between EU Habitats and Birds Directives, cause community of nations that have agreed by Directives and international conventions. administrative nightmares and lead to Treaty to transfer legislative and executive In these cases, international conventions delays or cancellation of projects and to competences in a number of domains to have priority over EU law because they increased costs. a supranational level. Environmental law constitute treaties between sovereign is an area where EU competences are far nations. Thus when the question arises, reaching because it was recognised early on “Is dredged material waste or not?”, INTRODUCTION that environmental problems and pressures the answer may not always be the same. do not stop at national borders, but are felt The European Commission has consistently The European Dredging Contractors community wide. argued that dredged material is a form of established the European Dredging “waste” since the holder attempts to get Association (EuDA) in 1994 as a trade EU law is in essence built on three types of rid of it. The industry, as represented by the association for contacts with European instruments: European Dredging Association, maintains institutions; this includes influencing and • Framework Directives (the term of that dredged material is foremost a natural tracking EU law that might impact the Directive is equivalent to a law in national resource that should be kept in its dredging sector. Amongst the areas legislation) define a general approach environmental compartment. Since this where EU legislation affects the industry, which sets a number of boundary difference is apparently a long way from environmental law has taken a prominent conditions and constraints and have to being resolved, another question arises: role. The EuDA Environment Committee be implemented by each member state Can the dredging community live with the has recently prepared a comprehensive in accordance with its specific EU waste hierarchy principles as such? review of European environmental rules circumstances. Certain provisions of a and their impact on the practice of Framework Directive may also be detailed The answer as far as the waste hierarchy is dredging and dredged material disposal. in a later stage at the European level and concerned is a mitigated “yes, provided This article presents a summary of the made effective by other legal instruments. that the national authorities understand the findings. When the instrument of a Directive is issue”. Moreover, for marine waters where used in such a case, one speaks of a the bulk of dredging takes place anyway, Above, Beach replenishment along the Dutch coast Daughter Directive. the framework established under the where water, sand and birds intermingle and EU • Directives are equivalent to laws and are umbrella of the London Convention has Directives on Birds and Habitats pertain. binding on the member states, except for 4 Terra et Aqua | Number 104 | September 2006

law. As the ratification is done by sovereign states, the EU as a supranational body does not play a role. Consequently, International Conventions have priority over EU law. As will become evident, this may lead to friction between the rules at the international and supranational levels.

Figure 1 illustrates the situation and lists also a number of advisory bodies and/or guidance documents that are helpful, but are not legally binding.

EU law and dredged material EU law does not deal specifically with dredged material, nor is there any intent to do so. Nevertheless, a number of EU Directives have an impact on the management of dredged material, either directly or indirectly. Figure 2 presents an overview of the structure of the relevant Figure 1. Hierarchy of legislation. regulations and the relationship between the various Directives.

the fact that they first have to be International Conventions, such as the The conclusion is that relevant rules can “transposed” into national law. London Convention which was established be grouped under the three headings of This poses a particular problem: under the umbrella of the IMO, but also waste, water and habitat protection. Some member states have a tendency the Oslo-Paris (OSPAR) Convention for the Of these three, the Waste Framework to transpose (environmental) EU law Atlantic and the North Sea, are agreements Directive and related Directives occupy the in a very strict and stringent manner, between sovereign nations; each nation most discussion time, since a great deal while others tend to follow the minimum decides independently whether or not to depends upon defining what constitutes requirements of the Directive. ratify a particular Convention. When a waste and, subsequently, on the limits of • Regulations are legal decisions taken certain number of countries have ratified a competence of the regional seas at EU level that are binding as such for Convention, it can become international conventions versus EU law. the member states and do not need transposition. They usually concern more technical details on which there is no major disagreement. WATER FRAMEWORK WASTE FRAMEWORK HABITAT DIRECTIVE DIRECTIVE 2000/60/EC DIR. 75/442/EEC + 92/43/EEC 91/156/EEC

It may be clear that the EU law has the Framework Under revision potential to deeply influence national legislation; also clear is that the resulting GROUND VARIOUS HAZARDOUS SHIPMENT LANDFILL WATER WATER WASTE hierarchy of rules and regulations is 2006/xx/EEC 99/31/EC

Daughters 80/68/ EEC QUALITY 91/689/EEC anything but simple, while the transposition Under revision Draft mechanism often results in the opposite effect of what was intended: In several INT. POLL.

E U LEGISLATION E U LEGISLATION NITRATES MINING+ SEWAGE PREVENTION WILD BIRDS DIR. EXTRACTION SLUDGE cases transposition creates important CONTROL 79/409/EEC 91/676/EEC 2006/xx/EC 86/278/EEC differences in national law. Moreover, the Under umbrella 96/61/EC Agriculture Industry Under revision impact of a particular EU law frequently has to be tested before the Court of Justice in Basel Convention London, OSPAR, Helcom, Ramsar Convention order to assess its judicial limits. on export of Barcelona Conventions for Wetlands Hazardous Waste NATIONAL NATIONAL

The next question to be raised is: how do CONVENTIONS International Conventions and Treaties relate to EU law and to national law? Figure 2. Overview of the structure of the relevant regulations and the relationship between the various Directives. Impact of European Union Environmental Law on Dredging 5

FREDERIK MINK WASTE FRAMEWORK DIRECTIVE Basically, it is difficult to understand why a joined Interel in 2005 as a Senior material that can be “re-used” in the same Consultant with a focus on transport, The Directive establishes a hierarchy, application as where it was found should be energy and environment. For 10 years he a strategy for prioritising management called waste in the first place (see Box for a was secretary-general of the European of “waste” as follows: case study). Dredging Association (EuDA). Prior to a) Prevention this he worked for over 20 years for b) Re-use As a clear definition apparently has not yet Westinghouse Corporation’s nuclear c) Recycling been found, the question becomes: Can the division. d) Processing or recovery dredging community live with the EU waste e) Disposal hierarchy principles as such? With this in mind the EuDA Environment Committee WOUTER DIRKS “Waste” is defined as “any substance or has developed an approach in the form of graduated in 1990 from Technical object which the holder discards or intends a decision logic diagram in line with the University Delft, the Netherlands. He then to discard”. Under this very broad definition established “waste” hierarchy. A distinction joined Ballast Nedam working on inter- the European Commission has consistently between marine water and fresh water national construction projects. Since argued that dredged material is a form of dredging has also been made since the 1995 he has worked in the dredging “waste” since the holder attempts to get constraints are somewhat different. industry and is now employed by Van rid of it. So far this discussion has not been These distinctions are presented in Figures 3 Oord where he is now lead engineer very fruitful: The industry as represented by and 4. In both cases the logic sequence of environmental issues. He is chairman of the EuDA maintains that dredged material the waste hierarchy is followed. the Environment Committee of EuDA. is foremost a natural resource that should be kept in its environmental compartment Marine water dredging GERARD VAN RAALTE and that this does not in itself cause the The fact that the regional sea conventions graduated in 1976 with a MSc in civil material to become a form of waste. define their own limits of jurisdiction was engineering from Technical University Delft, the Netherlands. After working at GeoDelft and Breejenbout, he joined EU Stratery Boskalis’ in-house engineering department Hydronamic in 1986 where he is now a Project Engineer. He is a member of both NEED FOR DREDGING? the EuDA Environment Committee and Prevention CEDA Environmental Steering Committee.

Beneficial use <5% HUGO DE VLIEGER joined the Belgian-based DEME Group in 1973, where he presently fulfils a Y Relocation at Re-use >5% number of top-level functions: Chairman selected locations Re-use of the Board, DEC NV; General Manager, Baggerwerken Decloedt & Zoon;

Managing Director, CVBA Fasiver and Placement in N +/- 80% NV Silvanmo; and Chairman, Management environmental comp. Committee De Vries & van de Wiel BV.

Y Processing Treatment <5% MARK RUSSELL Recycle is Director of Marine Aggregates for N the British Marine Aggregate Producers

Association, the trade association for Aquatic <5% the UK marine aggregate sector. He has been involved in the industry for over CONFINED DISPOSAL 10 years, working for the largest British Disposal <1% producer, Hanson Aggregates Marine, N.-B.: the annual volume of dredged material in the marine Upland before moving to BMAPA five years ago. 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. 6 Terra et Aqua | Number 104 | September 2006

carefully considered. For the OSPAR concerns the territorial limits of competence The conclusion is that overall some 5-10% Convention the limit is the tidal influence of EU environmental law. There is no of the dredged material may be so in the tributaries. Disposal of dredged simple, nor single answer to that question, contaminated that it needs to be disposed material is dealt with in essence under the but the Water Framework Directive (see of in a confined facility. At this point in the Dredged Material Assessment Framework below) claims jurisdiction roughly until one review the question arises whether disposal (DMAF) which was developed for the mile beyond the coastline. However, sites fall under any specific EU waste London Convention and has been reviewed international law supersedes EU law and legislation and if so which ones. in Terra et Aqua (Burt and Fletcher, nr. 66 the jurisdictional boundary of the OSPAR March 1997) previously. The OSPAR Convention and other regional conventions The answer is that upland disposal would be Convention clearly has no competence extends well inland. The EuDA Environment covered by the so-called Landfill Directive, concerning upland disposal or for beneficial Committee therefore takes the position which introduces stringent isolation use applications outside the marine that for marine dredging the international requirements and leads to considerable compartment. As the Conventions accept conventions apply as implemented by expense. Landfill sites are typically not the placement of dredged material back national law and EU law only may apply intended for the disposal of dredged into the marine waters, the conclusion was when nothing is foreseen in these material, but in some cases there is no drawn that EU law has hardly any impact conventions. Since the conventions accept alternative available. In most countries on the dredging process in marine and that dredged material is put back into the concerned this applies only to a minute coastal waters, except when heavily water body, unless it is too contaminated, fraction of the dredged material. contaminated materials are involved. the Environment Committee concludes that Figure 3 shows the quantities and the for dredging in marine waters current EU So what about sub-aquatic disposal sites? breakdown into categories. law may only be relevant to the confined These are clearly not covered by specific EU disposal of dredged material on land. rules and must be regulated at the national At this point one faces the potential friction level. Fundamental to the assessment between international law under the Figure 3 shows the quantities of dredged stated above is the consideration that Conventions and EU law as a supranational material and the assignment to the placing dredged material back into its body of rules. The first question to ask categories in the waste hierarchy. environmental compartment is a form of re-use that is in principle beneficial for the environment. In fact, it is particularly helpful EU Stratery in maintaining the sediment balance.

Fresh water dredging NEED FOR DREDGING? With respect to fresh water dredging,

Prevention one must recognise that the Conventions Y no longer play a role, but that the Waste 10-20% Beneficial use Framework Directive applies. The same approach can be followed as for marine UPLAND Y waters, since in both cases the waste Y +/- 20% Relocation at Re-use hierarchy is respected. The resulting selected locations Re-use interaction with other EU legislation such AQUATIC Y as the Water Framework Directive may be +/- 30% stronger. In terms of the decision logic the N Placement in environmental comp. following “disposal” modes were considered:

Y • Beneficial use: 40-50% Processing Treatment – as fill material

Recycle – as construction material

N – for soil improvement of agricultural land

Aquatic • Relocation: <30% CONFINED DISPOSAL Placing dredged material at specific

Disposal locations in the environmental Upland compartment so that it fulfils its role in

N.-B.: the annual volume of dredged material in the fresh water the sediment balance. 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. Impact of European Union Environmental Law on Dredging 7

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.

• Placement: which establishes the (stringent) provisions Contaminants The disposal of dredged material at for the landfill sites, but which also The last aspect to be discussed under this suitable disposal locations. recognises that disposal of dredged material heading concerns the contaminants. along waterways, on agricultural land or at • Processing: suitable subaquatic locations are acceptable The European Commission will not set any – separation of sand and silt solutions, as long as contaminants remain specific limit values for dredged material; – manufacturing bricks or basalt below certain limits. The Landfill Directive this is left to the member states. The only – biological treatment to reduce thus provides a number of escape routes quantitative values that have been around contaminant level that help to avoid disposing dredged are limits set in a separate Sewage Sludge – dewatering, ripening material in landfills. Some member states Directive; for lack of other standards these – land farming have recognised these possibilities in their have sometimes been quoted in connection – and more… national rules, but others appear to focus with dredged material. However, these more on the isolation provisions for landfill values are currently being revised since they Direct impact of specific waste legislation is sites, thus adding to the cost of dredged are too high and they are not actually in this case limited to the Landfill Directive material disposal. suitable for dredged material. 8 Terra et Aqua | Number 104 | September 2006

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.

Member states have been requested under process of the Water Framework Directive Even though these questions can be the rules of the OSPAR Convention or (which is foreseen to last some ten years), considered reasonable, it is too early to equivalent, to set limit values for sea it has been repeatedly emphasised that this provide answers since the relevant River disposal of contaminated dredged material. law has a long-term goal. It is recognised Basin Management strategies and the As a consequence one can find a wide that water quality varies considerably over Daughter Directives are still under range of classification systems and time and as a function of physical development. Much will depend on the threshold values in some member states, parameters, chemical conditions, biological consideration of variability over time: while other countries are of the opinion and ecological factors as well as does exceedance of established quality that dredged material does not lend itself hydromorphological boundary conditions. standards, e.g. for TBT, matter if the annual to setting limit values for individual Obviously it is no easy task to cast such a average is within the limits? How can the substances and should be assessed on framework into detailed implementation legislator deal with the weak links between a case by case basis. measures and therefore a series of chemical quality and hydromorphology? questions arises: • Will there be constraints on dredging In the implementation process it has been WATER FRAMEWORK DIRECTIVE operations in ports where the risk of repeatedly stated that the Directive is not releasing contaminants from silt cannot intended to interfere with normal The Water Framework Directive, which be excluded? operations and maintenance practices of became European law in 2000, has as its • Is short-term deterioration of water waterways and ports. This will be translated goal to gradually improve the quality of quality resulting from operational into guidance for selection of sampling and European waters to some standard which interventions and maintenance practices monitoring points remote from areas of may be called “good”. This objective is very an issue? activity and in establishing quality standards laudable, but the way to get there is still • How should one deal with the interaction that recognise (some) variability in the very much under discussion amongst the between water and sediment? aquatic environment. Commission, the member states and the • Can one legislate water quality without stakeholders. setting boundary values for sediment? The conclusion of this committee is that • How should changes in hydromorphology maintenance dredging will probably not The question raised here is: Could this owing to infrastructure works be be affected by this Directive, but that Directive possibly be a constraint for assessed in terms of their impact on capital dredging may become even more dredging operations? In the implementation water quality? constrained in water bodies falling under its Impact of European Union Environmental Law on Dredging 9

scope. One may also foresee new business project development. The dredging sector waters by 2021. It also claims competence opportunities for environmental dredging in can often be of considerable help in to regulate the status of the seabed and water bodies where historic contamination creating new nature sites near the its subsoils. Currently good environmental needs to be removed in order to meet the development area. This can take the form status is not defined, but by analogy to the ecological objectives (Figures 5, 6 and 7) of artificial islands, extended beaches and implementation of the Water Framework berms or habitat restoration through the Directive one can assume that it will be re-creation of mudflats and salt marshes. established on the basis of a series of HABITATS AND BIRDS DIRECTIVES parameters, including physical and chemical conditions, biological and ecological These two Directives aim to protect MARINE STRATEGY processes, physiographic and geographic biodiversity and rare biotopes and species. factors. In the wake of such an approach The implementation process has led to the The European Commission published a it is clear that the European Commission establishment of an ecological network across Thematic Strategy on the Protection and attempts to establish jurisdictional Europe called Natura 2000. Natura 2000 Conservation of the Marine Environment competence over the wider marine environ- consists of designated “special areas of in October 2005 (see http://ec.europa.eu/ ment, where currently only international conservation” under the Habitats Directive environment/water/marine.htm). This is bodies like OSPAR and the respective and “special protection areas” under the currently a document for discussion, but may member states are competent to regulate. Birds Directive most of which would be have repercussions on dredging in a more interconnected via corridors or other means distant future. The strategy and the resulting The discussion on the Marine Strategy is in an of protection. Why would these Directives proposed Directive aim to achieve “good early stage and it is expected that member impact dredging? environmental status” of European marine states will be reluctant to give up their exclusive

The reason is that coastal ports and harbours are very often located at, near or adjacent to Natura 2000 sites. This imposes on ports many restrictions in case they want to expand their site area or when they wish to build new infrastructure. In short port development projects face severe delays and increased costs, in particular when situated at the mouth of estuaries. Similar observations can be made for infrastructure development along valuable stretches of coastline.

The consequences for the dredging sector are likely to be indirect, but significant. The European dredging industry has noticed increasing problems with permits for infrastructure development in the marine environment and it faces increasing monitoring requirements in sensitive environments. A number of important infrastructure development projects have even been cancelled. Other impacts would entail such things as the presence of designated marine sites near ports, where disposal is not permitted; delays in infrastructure projects near designated sites and problems with establishing acceptable forecasts for habitat impact studies.

Again, there are also opportunities: The Habitats Directive foresees the possibility to provide compensation measures if valuable Figure 7. Also created from clean fill is an 800 ha nature reserve nature would be threatened owing to at the mouth of the IJssel (IJsselmonding). 10 Terra et Aqua | Number 104 | September 2006

jurisdiction over marine zones. The following CONCLUSION The impact of the Water Framework cannot quotes give an indication of the intention yet be established in full, but it is likely of the European Commission on the role it The conclusion of this assessment by the to have mainly indirect effects as a result wishes to play in the marine environment: EuDA Environment Committee is that the of complicating project development. • “Many of Europe’s regional seas are the impact of EU environmental legislation on Direct effects may result from additional subject of international conventions and the dredging sector is fundamental with monitoring requirements during projects and a number of these have made excellent respect to the question of dredged material after completion as imposed by the respective contributions to the marine protection. management and priorities, but is restricted permitting authorities in member states. However, these conventions have few when it comes to detailed implementation enforcement powers and this rules. The main impact results from the The conclusion with respect to dredging compromises their effectiveness in Landfill Directive, but even here much operations in relation to the Habitats and achieving agreed goals.” depends on the way the member state Birds Directives is: their effects will be • “In order to build on progress made concerned has transposed this piece of mainly indirect but not insignificant. through the existing institutions, policies legislation into national law. Especially for The effects of this legislation can lead to and conventions and to take action to marine waters, where the bulk of dredging significant delays in project approval and make further progress, there is a need to takes place anyway, the framework also to important increases in costs caused formulate a clear, overarching vision for established under the umbrella of the by extended needs for impact assessment. the marine environment and associated London Convention has priority over EU Of particular concern to the industry is the policies. A strong EU policy on marine law and is also more helpful for the sector. fact that impact assessment for ecological protection will complement and bolster effects in marine waters may be very the current patchwork of institutional The Marine Strategy may in the future difficult, since the environment is so arrangements by providing a legally undermine the exclusive competence of the dynamic, and thus lead to further delays enforceable framework (…).” international conventions. in the approval process.

CASE STUDY

That the lofty definition of “waste” in EU in a name?”, had to review the case law substance or object which the producer or legislation can lead to lengthy and rather produced by the European Court on these the person in possession of it discards or useless debates may be illustrated by a and similar matters and based thereon intends to discard”.). The interpretation thus recent case involving the Port of London produced a long argument which hinges on the meaning attributed to Authority (PLA) and the English concludes that: “discard”. Lord Kingsland, after a lengthy Environment Agency (EA). review of the jurisprudence, concludes that, 1. “the dredged substance [from the as long as the holder of the material intends The PLA intends to carry out dredging in Prince’s Channel] is [not waste, but] a to re-use or recycle, it never becomes waste the River Thames Prince’s Channel in view product, or at least a by-product; on the way; if the material is intended to be of increasing the navigational depth and it 2. if, nevertheless [the interpretation of recovered there is some leeway for inter- plans to use the dredged sand to improve the Waste Framework Directive would pretation. Lord Kingsland is of the opinion a nearby construction site. EA has taken conclude that] it is initially waste, then that it still does not become waste, but even the view that the material resulting from it is fully recovered when it becomes if it is considered to become waste, the part dredging is waste according to the Waste physically identifiable as a product (….) that is recovered turns into a “product” or Framework Directive and should therefore once it is in the hopper of the dredger”. a “by-product” and is no longer waste. meet stringent requirements when it is disposed of on land. The EA does not wish The reader will notice that in the legal sense Only material that the holder explicitly to recognise the fact that clean sand can it makes significant difference at which step intends to discard, or is forced to discard, is be used beneficially as construction in the waste hierarchy one finds oneself. thus “waste” under the definition. A long material. The case was submitted to Lord Lord Kingsland draws the conclusion that, argument is probably not necessary to Kingsland for a legal ruling. once dredged material is targeted for re-use, conclude that this kind of reasoning is so recycle or recovery, it is no longer waste, or it subtle and sophisticated that the dredging The Right Honourable Lord, rather than has never been waste in the first place. contractor no longer feels at ease. Nor for stating something like “don’t be silly”, or These conclusions are in fact based on a very that matter does the European Dredging “let’s use common sense”, or even “what’s strict reading of the definition (“Waste is any Association.