By: Sarah Faris
Since the mid-late 1980’s, European nations have taken significant strides to maintain the well being of the Danube River Basin (DRB). Covering ten percent of the continent, the DRB composes an extensive portion of continental Europe, earning its title as the world’s most international river basin. Accordingly, the basin is a point of commonality among a number of different European nations, extending into the territory of nineteen separate countries. The basin area is home to roughly eighty million people, the source of drinking water for many humans, and the source of life for both plant and animal species. It is a major source of energy production, transportation, agriculture, and industry throughout Europe. Countless lives, therefore, depend on the health and safety of this vast water body.
In an attempt to monitor and protect the Danube River and its basin area, fourteen of the countries most dependent on its welfare have contracted to be bound by protective regulations. These member nations formed a coalition, aptly named the International Commission for the Protection of the Danube River (ICPDR). Through the ICPDR, contractees have each agreed to recognize the Water Framework Directive (WFD), passed by the EU in 2000. Each nation has elected to incorporate the principles of this directive into its own national laws in order to achieve the common goal: protecting the basin.
Accordingly, the objectives outlined in the WFD are significant, as they provided the legal framework for the environmental policies of fourteen nations. Essentially, the WFD functions by creating specific quality levels that water sources must meet. That is, water sources must be at levels of “good chemical status.” In attempt to provide realistic goals for all fourteen nations, the ICPDR has created a management plan which functions in terms of six-year targets. The first management plan was created in 2009, and updated in 2015 in order to reflect the progress and needs of the nations involved. It will be once again revisited in 2021.
Austria is an important ICPDR member maintaining certain characteristics that are unique from other member-nations. For one, Austria is one of only three nations with over 96% of its territory located within the Danube River Basin. Furthermore, 95.4% of the population lives within this territory, and 91.6% is connected to the public water supply, which is reliant on the DRB. These statistics indicate that the welfare of the Danube is significantly connected to the welfare of the Austrian people.
In turn, Austria has taken significant strides to protect the water supply. Although the nation contributes significantly to the organic substance pollution of the water via industrial activities, it also provides treatment for 100% of its wastewater. Additionally, Austria’s legal framework creates a system where the water supply is well monitored. For example, organizations must receive permission before engaging in any actions that could affect the water quality, such as discharging waste materials. Furthermore, in order to engage in activities concerning the water source, individuals must first acquire a permit that is subject to time limitations. The nation has adopted programs for the implementation of raising awareness on the importance.
Additionally, Austria is one of the few ICPDR members significantly relying on hydrology as an energy source. Over half of the nations electricity is powered in this fashion. Although hydroelectricity is often praised as a resource-efficient source of energy production, it also creates a potentially complex issue considering the WFD regulatory framework.
In order to harness the amount of water necessary for water-powered electricity, Austria has begun to engage in hydropeaking. While other ICPDR nations have also used the process, the overwhelming majority of hydropeaking activity has been conducted in Austria. Specifically, twenty-seven out of the thirty-eight cases of hydropeaking within the DRB identified as significant occurred in Austria. This process includes creating water pressure by storing water within large basins in order to generate the necessary amount of electricity according to market demands. Necessarily, then, hydropeaking requires displacement of waters and disturbs the natural flow of the water body.
The hydropeaking process has thus far been justified under the WFD pursuant to Article 4(3). This allows for the classification of a surface water body as “artificial or heavily modified” on a conditional basis. Even when such hydromorphological alterations are deemed “necessary for achieving good ecological status,” it must be noted when they have a significant effect on the environment. Furthermore, in order to justify such alterations, the benefits that are produced must not be reasonably achievable via other, less invasive means. According to regulation, then, such alterations are permissible when they further good ecological status. However, the impacts must be identified, and the alterations must only occur as a sort of last resort when the desired results cannot reasonably be achieved in a different manner.
One of the issues related to ICPDR’s attempts to regulate hydropeaking is that there is still ambiguity as to how exactly this can and should be done. Hydropeaking’s effect on water status is still largely unknown. With that in mind, the 2015 update of the ICPDR Report has indicated that hydromorphological alterations will be a focus for the management project in the next six years. The specific type of alteration that is at risk with hydropeaking is that of “alteration of flow dynamics/discharge pattern in river and water quality.” Additionally, ICPDR defines the criteria for assessment as water fluctuation that is greater than one meter a day, or even less when negative effects on biology have also been observed.
Considering post-2015 scientific studies on hydropeaking, it appears that the negative effects have continued to be documented. A 2016 Austrian study not only reported significant population loss for species, but also posited that the WFD-approved testing methods for assessing good ecological status presented an incomplete picture of the extent of the effects. Also in 2016, several international researchers engaged in a study of synthesizing the data from the hydropeaking studies that was available up to that point. The report came to the conclusion that “acceptance that hydropeaking causes ecological damage is growing. Nevertheless, in the absence of strong evidence, few general principles exist for how best to restore flow regimes while retaining the benefits of hydroelectric power.”
Accordingly, in the next several years, Austria will continue to face the challenge of considering how to continue using the hydropeaking process while also maintaining good water quality. In 2016, affiliates of the US Geological Survey published a study indicating that it may be possible to both maintain the practice of hydropeaking while also protecting the species that it typically endangers. This could involve simple, cost-effective steps such as releasing lower flows of water during the peak times of insect egg laying.
Rather than basing water flow solely on market demands, then, it appears necessary to engage in thorough research of the natural state of the river area. This would include determining which ecosystems are already in place and how to accommodate them in order to protect the existing habitat. This could provide a cost-effective way to regulate the negative affects of hydropeaking while still providing for the needs of society, but create a system of maximizing on market demands in light of the existing environment, rather than in spite of it.
 Council Directive 2000/60, of the European Parliament and of the Council of 23 October 2000 Establishing a Framework for Community Action in the Field of Water Policy, 2000 O.J. (L 327), 1, ¶2. (Referencing the Community Water Policy Ministerial Seminar in 1988 as moment of recognition that legislation regarding water quality was necessary.) [hereinafter Water Framework Directive].
 International Commission for the Protection of the Danube River, The Danube River Basin District Management Plan: Part A- Basin-wide Overview – Update 2015, at v, http://www.icpdr.org/main/sites/default/files/nodes/documents/drbmp-update2015.pdf. (last visited Sept. 1, 2017). [hereinafter ICPDR 2015 Update].
 100% of Hungarian territory, 97.4% of Romanian territory, and 96.1% of Austrian territory is located within the Danube River Basin. Id. at Table 1.
 Id. Figure 44; Table 23.
 Id. Table 24.
 Oberleiter, F. Legal Basis of Water Management in Austria, 2, http://www.hydro.tuwien.ac.at/fileadmin/mediapool-hydro/Diverse/Lehre/Wasserrecht/Legal_Basis_of_Water_Management_in_Austria.pdf. (This English translation is an outline of what is addressed in a German document.)
 International Commission for the Protection of the Danube River, The Danube River Basin Management Plan 2015-2021, at 9, https://www.icpdr.org/main/sites/default/files/nodes/documents/managementplansbrochure2015.pdf (last visited Sept. 1, 2017). [hereinafter ICPDR Management Plan].
 ICPDR 2015 Update supra note 2, Table 27.
 ICPDR 2015 Update supra note 2, Figure 31.
 Julie Charmasson & Peggy Zinke, Centre for Environmental Design of Renewable Energy, Mitigation Measures Against Hydropeaking Effects, 5, (2011). http://www.hydroreform.org/sites/default/files/SINTEF-%20Mitigation%20Measures%20Against%20Hydropeaking%20Effects.pdf.
 Water Framework Directive Art. 4(3).
 Id. Art. 4(3)(a).
 Id. Art. 4(3)(b)
 ICPRD 2015 Update, supra note 2, at viii. It should be noted that hydropeaking is not the sole reason as to why hydromorphological alterations are a topic of focus, there are additional sources for concern. Id.
 Id. table 10.
 P. Leitner et al, Habitat Use and Tolerance Levels of Macroinvertebrates Concerning Hydraulic Stress in Hydropeaking Rivers – A Case Study at the Ziller River in Austria, 575 Science of the Total Environment 112-118 (2017).
 Andreas H. Melcher et al., Drawing Together Multiple Lines of Evidence From Assessment Studies of Hydropeaking Pressures in Impacted Rivers. 36 Freshwater Science 1, (2017). http://www.journals.uchicago.edu/doi/full/10.1086/690295
 Theodore A. Kennedy et al, Flow Management for Hydropower Extirpates Aquatic Insects, Undermining River Food Webs, 66 BioScience 7, 561-575 (2016). https://academic.oup.com/bioscience/article/66/7/561/2463266/Flow-Management-for-Hydropower-Extirpates-Aquatic.
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