The Conservation of Aquifers in Flanders as a Regulatory Challenge: How to Avoid a Death by a Thousand Cuts?

Abstract

Flanders used to be a region characterized by the presence of wetlands, marshy grasslands and forests. However, during the 20th century, the intensification of agricultural practices, urbanization and industrial activities led to the disappearance of more than 50% of these water-dependent ecosystems. In this article, a case study is carried out on the interplay with the existing regulatory schemes regarding groundwater extraction and drainage and the unfavourable status of many aquifers in Flanders. The main focus is placed on the regulatory approach to the accumulation of incremental impacts on aquifers in the Flemish Region, in particular its capacity to avoid a death by a thousand cuts. Using EU environmental law as a benchmark, this article finds that a multitude of loopholes and exemptions in the Flemish permitting schemes effectively compromises the long-term recovery of vulnerable aquifers in Flanders. Furthermore, the analysis sketches the main solutions that are available to ensure a more sustainable pathway towards the recovery of the Flemish groundwater bodies. In addition to an expansion of the material scope of the existing permitting schemes, which should also include small-scale interventions in nature and water, this article concludes that recent case-law developments before the national and regional courts underline the importance of a more science- and restoration-based understanding of the permitting schemes, which inevitably leads to more scrutiny when authorizing new groundwater abstraction or drainage activities. Finally, the article also underlines the unlocked potential that exists for future litigation strategies focusing on limiting ongoing activities that jeopardize the long-term recovery of vulnerable aquifers.