The Directive obliged Member States to designate coastal or estuarine waters as shellfish waters and laid down water quality standards to be achieved within them. The Directive has since been recognised as flawed because it did not set criteria for designation, allowing Member States to minimise its impact. It has also proved of limited value in protecting shellfish consumers, containing only a non-binding "guideline" value for faecal coliforms.
The UK designated 29 shellfish waters in 1981 and 1983, but the sites were selected on the basis that they would meet the EC standards without action to control discharges. The Department of the Environment (DoE) relied on administrative rather than legal measures to implement the Directive.
A second Directive agreed in 1991 aimed to protect shellfish consumers by setting chemical and bacteriological standards for live bivalves (ENDS Report 216, p 34 ). It required classification of all shellfish production areas according to their water quality, banned commercial harvesting from the poorest waters, and required purification of bivalves from intermediate waters. The effect was to close shellfisheries in some waters polluted by sewage discharges and some loss of livelihood in the fishing industry.
Implementation of the 1991 Directive resulted in renewed pressure on the DoE to formally implement the 1979 Directive. A campaign on behalf of shellfish growers was led by Barnstaple solicitor Peter Scott and began with a civil action against South West Water (ENDS Report 241, p 9 ). Although this was settled out of court in 1995, it resulted in a complaint to the European Commission that the Government had implemented the 1979 Directive inconsistently - allowing a general deterioration in coastal water quality and deterioration in some designated shellfish waters, both contrary to the Directive.
Mr Scott believes that legal action against the UK is now imminent. The Commission successfully took Germany to the European Court of Justice last year over its failure to implement the Directive. It argued that the purpose of the legislation was to protect human health through the monitoring of waters which support shellfish for human consumption - and in the event of non-compliance it was important that the Directive be transposed by legally binding measures on which individuals could rely in asserting their rights.
Announcing the new regulations and accompanying Directions to the Environment Agency,2 junior Environment Minister Angela Eagle said that they were "the first step in a process to initiate a review of implementation policy."3 She promised consultation on implementation and the designation of shellfish waters.
The review may well result in many more designations. The shellfish industry is likely to argue that at least all 311 production areas recognised under the 1991 Directive should be included. For new designations, the Agency would be required to draw up action programmes to ensure that the waters meet the EC standards.
The most stringent criterion is the Directive's requirement for shellfish flesh to contain no more than 300 faecal coliforms per 100ml. This is not included in the new regulations as it is only a guideline, but the Directions require the Agency to "endeavour to observe" the value in discharging its pollution control functions.
Achieving the coliform guideline at many more coastal sites would require water companies to use secondary treatment and UV disinfection at many coastal discharges. The costs may be considerable but will depend on the number and location of designated sites.
The High Court is also being asked to rule that water companies and their regulators can be sued if they do not uphold EC water quality standards, and that sewage pollution of shellfish beds constitutes a public nuisance when it prevents commercial harvesting.