10.3 Cooperation Over Planned Measures
143
UNECE. In other words, the relevant notification and consultation procedures remain
outside the narrow remit of water law both in the EU and the UNECE.
10.3.3.1 EU Law
Since 1985 the authorisation of projects with likely significant transboundary
effects has been subject to a notification and consultation procedure within the
EU. The bloc’s first environmental impact assessment (EIA) legislation—Directive 85/337/EEC
40 —already made sure that the authorisation of the most significant
water-related projects were made subject to an early assessment and transboundary
consultation, if their impacts were likely to be felt outside the national borders (Art.
7.). Importantly, these included not only hydraulic works per se (such as canalisation, flood-relief works, dams and other water storage installations), but also large
industrial facilities, transport and other infrastructure projects, agricultural projects,
mining projects, etc. with a potential impact on water (Annex I-II.). Although the
original EIA regime has evolved considerably since the 1980s, the current EU legislation, Directive 2011/92/EU,
41 very much follows the provisions of the original
directive and the UNECE’s relevant instrument: the 1991 Espoo Convention.
42 Thus,
where a project of likely transboundary impacts is proposed by an EU member state,
it has to notify all affected riparian states. The notifying state must provide the same
information to the affected member state as it has made available nationally. The
affected member state must consult its own public, allowing at least for 30 days
for comments on the environmental impact study. The results of these consultations
then must be communicated to the country of origin. The affected riparian state may
initiate consultations with the country of origin that should be completed within a
reasonable timeframe (Art. 7.). Importantly, the permitting authority of the country
of origin must provide detailed reasons why the comments of the affected riparian
state(s) have or have not been taken into consideration (Art. 9.1.).
This mechanism more or less mirrors the Espoo Convention procedure (see next
subsection). Importantly, however, in certain aspects the EU directive goes further
than the Convention. For example, Directive 2011/92/EU contains an important guarantee for the involvement of the lower riparian states in case doubt arises as to the
likelihood of transboundary impact. Unlike under the Espoo Convention, the directive allows any potentially affected riparian state to trigger the consultation procedure
at its own initiative, even if the country of origin fails to make a notification (Art.
7.1.). This removes any incentive for a country of origin to downplay the presence
or the significance of transboundary impacts, a recurring feature of international
40 Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public
and private projects on the environment.
41 Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on
the assessment of the effects of certain public and private projects on the environment.
42 Convention on Environmental Impact Assessment in a Transboundary Context, Espoo, 25 February 1991.
143
UNECE. In other words, the relevant notification and consultation procedures remain
outside the narrow remit of water law both in the EU and the UNECE.
10.3.3.1 EU Law
Since 1985 the authorisation of projects with likely significant transboundary
effects has been subject to a notification and consultation procedure within the
EU. The bloc’s first environmental impact assessment (EIA) legislation—Directive 85/337/EEC
40 —already made sure that the authorisation of the most significant
water-related projects were made subject to an early assessment and transboundary
consultation, if their impacts were likely to be felt outside the national borders (Art.
7.). Importantly, these included not only hydraulic works per se (such as canalisation, flood-relief works, dams and other water storage installations), but also large
industrial facilities, transport and other infrastructure projects, agricultural projects,
mining projects, etc. with a potential impact on water (Annex I-II.). Although the
original EIA regime has evolved considerably since the 1980s, the current EU legislation, Directive 2011/92/EU,
41 very much follows the provisions of the original
directive and the UNECE’s relevant instrument: the 1991 Espoo Convention.
42 Thus,
where a project of likely transboundary impacts is proposed by an EU member state,
it has to notify all affected riparian states. The notifying state must provide the same
information to the affected member state as it has made available nationally. The
affected member state must consult its own public, allowing at least for 30 days
for comments on the environmental impact study. The results of these consultations
then must be communicated to the country of origin. The affected riparian state may
initiate consultations with the country of origin that should be completed within a
reasonable timeframe (Art. 7.). Importantly, the permitting authority of the country
of origin must provide detailed reasons why the comments of the affected riparian
state(s) have or have not been taken into consideration (Art. 9.1.).
This mechanism more or less mirrors the Espoo Convention procedure (see next
subsection). Importantly, however, in certain aspects the EU directive goes further
than the Convention. For example, Directive 2011/92/EU contains an important guarantee for the involvement of the lower riparian states in case doubt arises as to the
likelihood of transboundary impact. Unlike under the Espoo Convention, the directive allows any potentially affected riparian state to trigger the consultation procedure
at its own initiative, even if the country of origin fails to make a notification (Art.
7.1.). This removes any incentive for a country of origin to downplay the presence
or the significance of transboundary impacts, a recurring feature of international
40 Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public
and private projects on the environment.
41 Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on
the assessment of the effects of certain public and private projects on the environment.
42 Convention on Environmental Impact Assessment in a Transboundary Context, Espoo, 25 February 1991.