Memorandum by the Environment Agency:
Review of Bathing Water Directive (76/160/EEC)
The Environment Agency broadly welcomes the
Commission's proposals for a revision to the existing Directive.
Many aspects of the proposals will, in the view of the Agency,
increase the protection afforded to prospective bathers from the
possible health risks associated with microbiological pollution,
improve the provision of environmental information to the public
and drive the more standardised application of the Directive across
Member States. However, the anticipated requirements for more
extensive bathing water management and data-reporting will inevitably
lead to increases in the cost of administration of this Directive.
A more explicit framework for the
identification and de-identification of bathing waters.
Provision for risk-based monitoring
which will allow the greater scrutiny of problem waters.
The modernisation and streamlining
of bacteriological parameters (see also, areas of concern below).
A more robust statistical methodology
for the assessment of conformity with the revised Directive (see
also, areas of concern below).
The expanded provision of environmental
information to the public.
The acknowledgement by the European
Commission in Article 1 of its proposal that the environmental
and health objectives of a revised Bathing Water Directive should
complement the measures set out in the Water Framework Directive
Current proposals for laboratory
protocols to be employed for the enumeration of the new intestinal
enterococci and Escherichia coli parameters.
the stringency of quality standards
associated with the aforementioned parameters and the cost implications
which will stem from delivering the quality standards and any
legal proceedings which may be associated with non-conformity
with a revised Directive.
The recommended use of a 95-percentile
to assess compliance which disregards sampling error. Such an
approach could result in sites being assessed wrongly to have
failed the Directive. This could then give rise to misdirected
investment in investigations and infrastructure improvements (see
The lack of consideration of the
sustainable development implications of the Commission proposal.
The delivery of environmental water quality improvements as a
result of the revision of the Directive should be balanced against
an associated increase in energy consumption by the water industry
(for example, as a result of installing tertiary ultra-violet
The Environment Agency is the competent authority
in England and Wales responsible for implementing the requirements
of the Bathing Water Directive (76/160/EEC), as directed by Government.
The Agency has a significant interest in the ongoing discussions
concerning the revision of this piece of legislation. Associated
investment under this legislative driver reported to OFWAT by
water companies between the financial years 1990-91 and 1999-2000
was in excess of £1.8 billion.
2. MAIN ISSUES
2.1 Identification of waters
Article 5 of the Commission proposal (COMM (2002)
581 final) provides a more explicit framework for the identification
and de-identification of waters than the existing legislation.
The Agency supports this clause in anticipation that it will lead
to a better inventory of bathing sites and the more efficient
targeting of monitoring resources if accompanied by a acceptable
definition of what constitutes a bathing water.
2.2 Monitoring of identified waters
The Environment Agency currently employs laboratory
protocols which utilise membrane filtration techniques. The Agency
believes that ISO standards associated with both membrane filtration
and microtitre techniques for the enumeration of intestinal enterococci
and Esherichia coli should be included in the methods of
analysis in a revised Directive.
The published Commission proposal (COMM (2002)
581 final) contained provisions in Article 7 for the establishment
of a monitoring calendar to be published by Member States in advance
of each bathing season. Provisions for risk-based monitoring activities
were contained within Annex IV of the proposal whereby sampling
frequency will be inversely proportional to the classification
(excellent, good, poor) of each water. The Environment Agency
is supportive of both of these clauses.
2.3 Management of identified waters
The Commission proposals advocate a general
shift in philosophy away from purely monitoring the status of
identified waters, toward actively managing them throughout the
season. The Agency welcomes this move toward the adoption of a
more pro-active regulatory stance. However, the application of
management actions in the proposal are restricted to intervening
only to protect public health during pollution incidents caused
by floods, accidents, infrastructure breakdowns or extreme weather.
There is a perceived need on the part of the Agency to increase
these limited provisions for management actions, and at the same
time to make them more flexible and pragmatic. One of the recognised
shortcomings of the current Directive is that, due to the time
required for laboratory testing of indicator bacteria, it is difficult
to effectively protect the public during a short-duration pollution
event. There should therefore be expanded scope within a revised
Directive for the deployment of management actions in advance
of predicted pollution events in order to better protect bathers.
Such actions, if successfully undertaken, should be held to represent
conformity with the health protection provisions of a revised
Directive, particularly when taken to mitigate against intractable
problems caused by diffuse pollution.
The existing Commission proposal will, however,
still give rise to a number of organisational challenges. The
management of identified waters will require the profiling and
classification of all waters, a process which will be routinely
reviewed and will require considerable additional resource. Clear
roles and responsibilities to fulfil this requirement will also
have to be established. The Agency would see a significant role
for local authorities taking action to manage the bathing water
based on information from the Environment Agency.
There are several questions which should therefore
be considered in relation to the management of identified waters:
(i) By what mechanism would the technical
assessment of a bathing water be translated into actions taken
to protect the public?
(ii) To what extent would extra capacity
be required by the Agency?
The proposals for revision of the current Directive
will increase the level of monitoring, assessment and reporting
conducted by the Environment Agency at identified waters.
Whilst provisions for risk-based monitoring
may reduce the overall number of samples taken in the course of
a bathing season, sampling costs may increase as a result of increased
inefficiencies. There will be increased complexity of sampling
programmes and provision will have to be made to respond to pollution
The Commission proposal, under the terms of
Article 12 and Article 16, would require the Agency to develop
the capacity to intervene during pollution events. Additional
resources will be required to support the decision making, management
and notification activities.
Reporting requirements will be increased under
a revised Directive. In addition to making information available
in the vicinity of the bathing itself, a revised Directive will
require the enhanced use of media and technologies to disseminate
information proactively to the public. Basic information will
include profiles for each bathing water; a record of the classification
of the bathing water and environmental data relating to all monitored
parameters. In addition, full descriptions of management measures
undertaken over the previous three years in order to preserve
or improve bathing water quality, protect waters against deterioration,
or reduce the risk of human exposure will be required under the
terms of Article 16. The Agency will require increased resources
to expand its existing bathing water internet pages and to develop
new information delivery systems in order to provide these augmented
2.4 Assessment of conformity with a revised
The Commission has adopted an essentially two-tiered
approach towards bacteriological quality standards within its
proposal. Recent compliance projections undertaken by the Environment
Agency equate the attainment of "good" status as approximately
equivalent to current "guideline" status under 76/160/EEC.
In the proposals, the "good" quality standard carries
with it a projected 1 in 20 risk of contracting gastro-intestinal
illness to the bathing public (Section 4.6, Explanatory Memorandum).
Such a level of risk might be reasonably expected to result in
a large number of incidents of gastro-intestinal illness per annum
in the United Kingdom, although this does not appear to be reflected
at present in terms of reported cases. Environment Agency reservations
are supported by the Defra partial Regulatory Impact Assessment
which states that, ". . . UK public health surveillance systems
and a detailed study of infectious intestinal disease in England
do not detect bathing-related illness and public health professionals
regard the issue to be a low public health priority . . .".
The Agency welcomes the proposed use of more
robust statistical approaches, which use multiple seasons of data,
to assess compliance against bacteriological standards. However,
the Commission proposal for the revised Directive refers to a
method for assessing compliance with the 95-percentile standard
that is vulnerable to the effects of sampling error. The Agency
believes that it would be better to use a method that manages
the risk that statistical sampling error may lead to the wrong
declaration that a compliant water has failed or that good waters
are wongly declared poor. This risk is up to 50 per cent. The
Agency recommends the use of a proper statistical test of compliance
based on the 95 per cent confidence limit on the estimate of the
95-percentile. This reduces to a maximum of 5 per cent, the risk
that serious action is wasted on sites placed wrongly in the poor
category because of sampling error. This, in turn, will ensure
that when money is being spent, it is delivering a genuine environmental
To achieve conformity with the requirements
of the proposed revised Directive, a bathing water must achieve
a minimum of "good" status. A bathing water classified
as "poor" will nevertheless be adjudged to be in conformity
with the requirements of the proposed Directive for a period of
only three years if appropriate management actions have been taken
to protect the public in the intervening period. The terms of
Article 13 provide a framework for the effective management of
unsatisfactory bathing waters which is an improvement over the
current "pass/fail" perspective of the current Directive.
As such it is welcomed by the Environment Agency, although there
remains a recognised need for the introduction of sufficient flexibility
into the management system which would allow it to deal with forms
of bacterial pollution which may not be easily mitigated against,
or may require more reaslistic time-scales to be set. For example,
that from agriculture and wildlife.
2.5 Reporting of environmental information
Competent authorities within Member States will
be required to report on and make available to the general public,
an increased volume of environmental information. This data will
include information relating to the profile of each identified
water, the classification of individual waters, the monitoring
calendar and the history of any management actions taken. The
Environment Agency has in recent years provided monitoring data
on the internet within 10 days of the samples being taken and
is well placed to implement many of these requirements. However,
the requirements of Article 16 will inevitably increase the administrative
costs of implementing any revised Directive in England and Wales.
The Bathing Water Directive (76/160/EEC) is
one of the earliest examples of environmental water quality legislation
to be pioneered by the European Commission. In the intervening
quarter of a century since its pulication, the text of its Articles
have been overtaken by developments in microbiology, an increased
sophistication in the use of statistics as a regulatory tool and
changes in the public perception of what constitutes an acceptable
level of environmental quality. The Agency is supportive of Commission
attempts to update this Directive. Any proposals must be able
to be justified on cost-benefit criteria. The Commission proposal
represents a significant step forward in the monitoring and assessment
of identified bathing waters. The recent Defra partial Regulatory
Impact Assessment on the ramifications of the Commission proposal
represents a robust and welcome initial assessment of the costs
associated with a revised Directive and will be accompanied by
more detailed assessments in the wake of political agreement on
the final text.
23 April 2003