Double-edged reform of EC bathing water rules

The European Commission has embarked on the first major overhaul of EC water legislation with a proposal to amend the 1976 Directive on bathing water quality.1 The existing rules would be streamlined and clarified, and focussed on the parameters of public health significance. Member States would also be given considerable latitude to remedy pollution of designated waters without incurring legal sanctions from the Commission. But the revised rules would almost certainly increase the number of bathing waters failing to comply with the Directive - in particular the controversial standard for enteroviruses.

Amendments to the 1976 Directive have been promised by the Commission for several years in the light of improving scientific understanding of the health risks posed by bathing in polluted waters and practical difficulties encountered by Member States in applying the legislation.

The reform has taken on added significance as the EC debate on subsidiarity has gathered pace. Member States - most notably the UK - which have been pressing Brussels to "repatriate" responsibility for environmental protection from Community to national level regard several water Directives as key targets for the application of the subsidiarity principle. But the proposal to amend the bathing water Directive provides only limited evidence that the Commission is prepared to surrender its ground.

Although the existing rules are to be simplified, an explanatory memorandum attached to the proposal stresses that this must not be done at the expense of existing standards of health protection for bathers. The Directive, it says, "has made a significant contribution towards improving the quality of life for the citizens of Europe," and action at EC level is essential to ensure that bathers throughout the Community receive a guaranteed minimum level of protection.

The amendments would retain the structure of the 1976 Directive. Member States would be obliged to designate bathing waters on the basis of the existing criteria - more than 16,000 such waters have been designated throughout the EC to date - both "imperative" and "guide" values for a series of water quality standards would be retained, and the existing regime for assessing compliance against these would be broadly unchanged.

The detailed proposals for change are as follows:

  • Status of standards: As before, Member States would be obliged to ensure compliance with the "imperative" values, and " observe" the tighter "guide" values. In practice, the imperative values have generally been the targets for which Member States have aimed in their improvement programmes, but the proposal would create pressure for further improvement by creating a new category of waters deemed to be of "excellent quality" if they complied with the guide values - a fact which would no doubt be publicised by tourist and marine conservation organisations.

    Member States would benefit where waters qualified for the "excellent" category by being able to take half the prescribed number of water samples after two successive bathing seasons of excellent quality. The existing Directive is much vaguer in this area, stipulating that when sampling in "previous years" produces results "appreciably better" than those specified - without discriminating between the imperative and guide values - then sampling frequencies may be halved.

  • Parameters: Much of the controversy over the Directive has centred on the water quality parameters it contains, as well as the standards set for some of these. In response, the Commission has proposed that the Directive should focus on pollutants most likely to put public health at risk.

    Several parameters have been deleted from the text altogether. These include pesticides, metals, nutrients and ammonia. No specific limits for these were set in the original Directive, and they were there only to encourage Member States to check for their presence where a pollution problem was suspected.

    The biggest problems have been posed by the parameters of microbiological quality, which have the greatest significance for public health. Most give only a broad indication of water quality and related health risks, and there has been considerable scientific and political debate about whether some are needed at all, how they should be expressed, how testing for compliance should be carried out, and what the compliance regime should be.

    One parameter which the Commission believes should now be dispensed with is the controversial zero limit for salmonella. This has been criticised on several grounds. Firstly, it covers all salmonellae, although these vary very widely in their pathogenicity. Secondly, there is very little evidence that ingestion of salmonellae except from grossly polluted water can cause illness. And thirdly, salmonellae enter water from a variety of sources which are not controllable - such as bird droppings - and are regularly found in otherwise unpolluted waters.

    In place of the current standard, the Commission has proposed that Member States should identify all pollution sources "which might lead to salmonella reaching bathing areas, and...take appropriate action to avoid pollution from such sources."

    The 1976 Directive also contains a zero standard for enteroviruses. Again, as the Commission notes, it has been argued that this is impossible to comply with because enteroviruses are fairly ubiquitous in the offshore environment, and that the standard should therefore be amended or deleted altogether. However, the proposal takes a different tack.

    Because some individual viruses are highly infectious, the Commission believes that a strict standard to protect health is necessary. On the other hand, it acknowledges that it is difficult and expensive to test water for viruses. It therefore intends "in due course" to replace the enterovirus parameter with a parameter for bacteriophages - viruses which attack bacteria and are common in sewage.

    If found in bathing water, bacteriophages would act as an indicator of faecal contamination, and because they decay in water at roughly the same rate as enteroviruses they could also be used to indicate the possible presence of viruses. However, the scientific evidence needed to support a specific numerical proposal for bacteriophages is not yet available - and until it is the Commission wants to retain the zero standard for enteroviruses.

    Although this would not appear to change the existing situation, this is not strictly correct. Firstly, the proposal would set for the first time a minimum sampling frequency for enteroviruses. Samples would generally have to be taken monthly immediately before and during the bathing season, although only two samples would be needed if the water had met the imperative value for faecal streptococci and the guide value for E. coli (see below) in the two preceding bathing seasons.

    The effect of this in the UK would almost certainly be to increase the risk of non-compliance with the Directive because in general only two samples have been taken during each bathing season - and because the ubiquitous nature of enteroviruses means that the likelihood of detecting them is high.

    Secondly, because the proposal would focus attention on parameters considered to be of real public health significance, greater weight is likely to be given in future to breaches of the enterovirus standard. Until now, the Government's reports of the UK's compliance with the Directive have been based solely on compliance with the two coliform standards - but if the virus standard was included then the compliance figure would almost certainly fall dramatically.

    This can be seen in the latest annual report on bathing water quality from the National Rivers Authority, which provides data for 1992. In that year, 88 (21%) of the 416 waters designated under the Directive in England and Wales failed to meet the coliform standards. However, no fewer than 201 failed the enterovirus standard - and that when almost all waters were sampled only twice in the year, and some not at all.

    Although the Government may for this and other reasons argue that the enterovirus standard should be modified or deleted from the Directive, it would be on something of a sticky wicket if it did so. An official study of the health effects of sea bathing published in February provided no direct support for doing away with the standard (ENDS Report 229, pp 10-11 ).

    An imperative value for faecal streptococci has been added to the existing Directive, which contains only a guide value of 100 per 100ml. The mandatory standard proposed is 400 per 100ml, which "reflects scientific evidence", according to the Commission. However, the UK's recent study indicated that an increased incidence of diarrhoea among bathers was correlated with mean streptococci levels an order of magnitude below this.

    Detailed statistics on streptococci levels in UK waters have not been published, so it is impossible to tell what effect the proposed standard would have on compliance rates. However, the NRA's report showed that only 41% of bathing waters in England and Wales met the existing guide value in 1992.

    The Commission has also proposed the deletion of the existing standard for total coliforms for simplicity's sake, leaving the faecal coliform parameter, which in practice is the stricter of the two. This would apply only to Escherischia coli. It is not immediately clear what effect this would have in practice.

  • Assessing compliance: Another aspect of the Directive which has been subjected to criticism is the regime for assessing compliance.

    For the key microbiological parameters, bathing waters have been deemed to comply with the Directive if the relevant standards are not exceeded in 95% of the samples taken. However, since the Directive provides that samples need only been taken fortnightly in the course of a bathing season - equivalent to about 12 samples per season in the UK - in practice this has meant that just one failure is needed for a bathing water to be treated as non-compliant. Since 1988, at least 20 samples have been taken in the UK in order to avoid the possibility that a bathing water would be placed in the "fail" category for this reason.

    Several options have been suggested for amending these rules. These include a relaxation of the 95% compliance requirement, and the use of statistical assessments of all sampling results so that isolated exceedances of the standards would not necessarily result in a bathing water being failed.

    However, the Commission has declined to alter the present approach. A statistically based approach would, it says, reduce the clarity of the compliance rules, and make it difficult to explain to the public that a bathing water which was polluted at times during a season was nevertheless in compliance with the Directive.

    The existing approach has therefore been retained, but clarified somewhat. For a water to be deemed to be in compliance with the imperative values, no sample would be allowed to fail if 19 or fewer samples were taken during a bathing season. One failure would be allowed if 20-39 samples were taken and two with 40-59 samples.

    However, achieving compliance with the guide values will be somewhat easier. For the microbiological parameters, a 90% pass rate is currently enough to achieve compliance, with a less demanding 80% pass rate being allowed for faecal coliforms. But under the new proposal, at the UK's current sampling frequency of 20 per season, four results in excess of the guide values - an 80% pass rate - would be allowed for all parameters.

  • Dealing with breaches: Another difficult area of the Directive is the lack of clear guidance on how breaches of the standards should be treated in legal terms. In principle, if a water moves out of compliance, the Member State concerned is at risk of infringement proceedings for failing to meet its legal obligations.

    The draft Directive cannot be said to have established clear rules in this area, and in this respect may be regarded as giving Member States something of a let-out. It imposes a general duty on them to "take all measures necessary" to ensure that bathing waters comply with the imperative values, and where these do not bring about compliance the competent authority must identify the causes and "take the necessary action to bring about compliance as soon as possible". A timetable for the remedial measures to be completed would have to be submitted to the Commission.

    In practice this formula would certainly offer Member States a good deal of flexibility - but it is also likely to make for considerable difficulties for the Commission in seeking to enforce the Directive against recalcitrant Member States.

  • Health risks: New provisions have been proposed to deal with situations where pollution of bathing waters poses a threat to public health. This is defined as existing where there is a "significant deviation" from the imperative values, "taking local conditions into account". Member States would be obliged to ban bathing where this occurred.

  • Information to the public: A new duty would be imposed on Member States to ensure that information on bathing water quality was "prominently displayed" at bathing areas - including a statement of the previous year's compliance, the "most recent" information on water quality, and information on any remedial works in progress or planned.

    The Commission wants Member States to bring the revised Directive into force by 31 December 1995. It is too early to say whether this is a practicable proposition.

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