In 2020, the EU adopted a new Drinking Water Directive, Directive (EU) 2020/2184 of the European Parliament and of the Council of 16 December 2020 on the quality of water intended for human consumption (recast) (the “Drinking Water Directive”). The Drinking Water Directive entered into force on 12 January 2021 and the Member States now have two years to implement the Directive. The Drinking Water Directive replaces the previous Directive, Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption. The objective of the Drinking Water Directive is to protect human health from the harmful effects of all types of pollutants of drinking water by ensuring that it is healthy and clean and to improve access to drinking water for everyone in the EU.
Legislative work to introduce the new Drinking Water Directive
On 16 July 2020, the government decided to appoint a specific investigator to the task of putting forward proposals on how the Drinking Water Directive should be implemented in Swedish law. On 15 October 2021, the study was submitted to the government in the form of the report entitled “En säker tillgång till dricksvatten av god kvalitet” [Safe access to good-quality drinking water] (SOU 2021:81). The report from the study has now been referred to the relevant authorities and operators for consultation. The referral period ends on 7 March 2022. The government will then continue to process the matter and will put forward a Government Bill containing draft legislation for discussion in the Riksdag. Because legislation to implement the new Drinking Water Directive must be in place at the beginning of 2023, the process of referral to the Council on Legislation and preparation of a Government Bill for a decision by the Riksdag will need to be carried on efficiently.
What new features does the implementation of the new Drinking Water Directive involve?
Implementation of the Drinking Water Directive, whether in accordance with the report on the study in SOU 2021:81 or otherwise in accordance with the government’s future Government Bill, will entail a number of new obligations for the country’s municipalities in their capacity as water and sewer principals and for designated authorities.
The following points are the main changes that need to be implemented in Swedish law as a result of the Drinking Water Directive.
- A risk-based method for ensuring drinking water safety
- Parameter values for levels of various pollutants in drinking water
- Harmonised rules regarding materials in contact with drinking water, as well as chemicals for preparation and filter materials for raw water
- Information for the public
- Obligation to report
The authorities’ new areas of responsibility
According to the report, it is proposed that the areas of responsibility of the Public Health Agency of Sweden, the Swedish National Board of Housing and Housing, Building and Planning and the Swedish Agency for Marine and Water Management should be extended.
Furthermore, the study proposes that part of the responsibility for ensuring that the risk-based method has an impact during tests and supervision should be ascribed within the water management, i.e. to the five county administrative boards that are specifically designated as water authorities in Sweden for managing the requirements for good water quality in accordance with the EU Framework Directive for water.
According to the proposal by the study, risk assessments regarding the catchment areas for outlet points for drinking water must be carried out by the water authorities. It is also proposed that the water authorities be entitled to adopt decisions on risk management measures on the basis of the risk assessment.
The fact that the study has chosen to propose a new area of responsibility for the water authorities has already led to criticism of the proposal since another government study has proposed that the water authorities be wound up and responsibility for water management be transferred to the Swedish Agency for Marine and Water Management (“En utvecklad vattenförvaltning” [A developed water management] SOU 2019:66). However, the proposals in SOU 2019:66 have not yet led to any draft legislation and, pending a decision by the government in the matter, the study in SOU 2021:81 is of the opinion that that the legislator should base its approach on the existing structure of public authorities.
Consequences for authorities and water and sewer principals
Most of the requirements that will be imposed will, according to the proposals in the study, be communicated through regulations issued by public authorities. That means that, at present, it is difficult to assess the effects of the implementation of the Drinking Water Directive. According to the study, a great deal of responsibility will be placed on designated authorities to take the starting points of the Drinking Water Directive into consideration when the regulations are produced and to draw up clear and simple guidelines for the stakeholders concerned.
Another circumstance that makes it difficult to predict the full extent of the implementation of the Drinking Water Directive at present is, for example, that the requirements for dealing with water leakages and watched substances will be introduced through what are referred to as delegated acts adopted by the European Commission. That means that the future requirements for water and sewer principals will depend on the method for water leakage applied and what substances and pollutants are placed on the Commission’s watch lists.
However, not all changes will result in additional work. There is a proposal for, among other things, the introduction of a clear definition of drinking water in EU law. In our opinion, this proposal is a good one because there was no previous clear definition at the Swedish level.
In view of the risk-based working method, the question of water protection areas is likely to come even more to the fore, even though no legislative proposals relating directly to this have been put forward. Questions relating to harmonisation and synergies between the Water Framework Directive and the Drinking Water Directive will certainly also be the subject of many future discussions and will be focused on in many referral statements concerning the study. Another question to be taken into consideration is ensuring that information for the public does not jeopardise the security of the drinking water facilities.
In conclusion, it may be stated that the introduction of the Drinking Water Directive will entail a number of challenges, but hopefully there will be better, clearer regulation of drinking water in the future as well as greater focus on environmental legislation. It is hoped that the risk-based method will mean that hazardous substances are detected at an earlier stage since the analysis of the raw water will be based on the risk assessment for the catchment area. That may mean, for example, that the pollution of drinking water supplies that occurred in Ronneby and Uppsala in recent years could possibly have been avoided.
Do you want to know more about the new Directive or did the article raise other questions? You are very welcome to contact one of our experts in Environmental law or your regular contact person at Lindahl.