Regulatory trends protecting our rivers

Human societies historically evolved alongside rivers as they provide water supply for domestic and agricultural purposes, as well as navigation. Rivers are also diverse ecosystems, supporting freshwater species and essential resources for food production. However, rivers are under increasing threat as a result of pollution, irrigation, sewage, drainage, and climate change, among other causes.

In this article, Enhesa experts Paula Galbiatti Silveira and Natércia Escorel Cordeiro de Castro examine the current state of global river health and the regulatory trends for their protection.

What’s the current state of rivers around the world?

The European Environment Agency (EEA) estimates that between 70 and 90% of EEA-39 countries’ floodplains have been environmentally degraded. In Ireland, the Environmental Protection Agency estimates that over half (56%) of river water bodies that were assessed between 2019 and 2022 are in high or good biological condition, while 44% are in moderate, poor, or bad biological condition. In the United States, the Environmental Integrity Project (EIP) — a nonprofit created by former Environmental Protection Agency (EPA) attorneys — published a report in 2022 showing that 51% of the river and stream miles assessed are considered impaired by pollution, being too polluted for swimming, fishing, or drinking.

The Ministry of Ecology and Environment of the People’s Republic of China’s report on water quality for 2023 (January to December) estimates that a little over 10% of the country’s surface water resources are in less than good conditions, with 0.7% being inferior than Class V (the lowest), with the main sources of pollution being chemical oxygen demand, total phosphorus, and permanganate.

This scenario is worsened by climate changes.

An increase in extreme weather events — such as droughts, rainstorms, and floods — pose serious risks to water quality and challenges to water management. A recent study comparing 965 cases shows that 68% of them indicate deterioration of the river water quality under droughts and heatwaves, 51% following rainstorms and floods, and 56% under long-term climate change.

In this context, several global and national initiatives were taken to improve the quality of rivers. In the United Nations global agenda, Sustainable Development Goal 6 (SDG6) includes targets to protect and restore water-related ecosystems such as rivers. The United Nations Environment Programme (UNEP) also has a strategic document with its priorities for freshwater considering the three planetary crises of climate change, nature and biodiversity loss, and pollution and waste, stressing the role of freshwater bodies in combating them.

Concerningly, recent mid-term status reports on SDG6, released by the UNEP, evidence that more than half of the world’s countries have degraded some type of their freshwater ecosystems, such as rivers, lakes, and aquifers. Data shows that water resources have been shrinking over the past decades with decreased river flows, lower levels of surface water bodies, and rising pollution rates.

Companies also play an important role in the protection of rivers worldwide. The recent UN Water Report published in March 2024 states that freshwater use has been growing by just under 1% per year, with industrial use accounting for approximately 20% of this increased demand. Alarmingly, the report projects that the world is currently not on track to meet any of the targets of SDG6 to ensure the availability and sustainable management of water and sanitation for all. It estimates that 2.2 billion people go without access to safely managed drinking water as of 2022. The report encourages companies in the industrial sector to utilize established technologies focusing on using less, reusing, and recycling water.

Protecting rivers with stricter discharge obligations

The scenario described above, impacting natural resources as well as the livelihood and perpetuation of businesses, generates a series of measures undertaken by governments in an attempt to control and reduce the contamination and degradation of water resources, with emphasis on discharge restrictions.

Here are some examples from across the globe:

Vietnam

On 6 February 2024, the Vietnamese Government adopted Decision No. 161/QD-TTg to provide a Plan for implementing the water resources plan for the period of 2021 to 2030 and vision up to 2050 specified under Decision no. 1622/QD-TTg of 27 December 2022. According to the Plan, companies discharging wastewater into water sources within river basins and irrigation systems can be subject to heavy sanctions if state inspection finds they’re not complying with the Law on Environmental Protection in relation to wastewater treatment and management.

The Plan also states that companies generating wastewater to be discharged into the Bac Hung Hai irrigation system should expect to comply with certain pilot projects to improve and restore degraded and depleted water sources and reduce pollution. Notably, impacted companies should expect to install an automatic wastewater monitoring station and continue transferring and updating the environmental monitoring data to the Government’s system. In addition, companies will have to install a wastewater collection and treatment system and an automatic wastewater monitoring station serving dredging and stream clearance.

Brazil

In the State of Pernambuco, Brazil, Law Proposal 1.739/2024 was presented on 18 March 2024 to create an Emergency Policy Against Illegal Waste Discharge in water environments such as springs, riverbeds, and rivers. If adopted, companies would be subject to stricter penalties for the illegal discharge or disposal of waste in water courses, such as fines, notices, temporary suspension, or interdiction of the activities and places generating the illicit discharge of waste, and criminal liability.

Virginia, USA

On 22 April 2024, the Virginia State Water Control Board adopted amendments to the Water Quality Management Planning Regulation, developing total maximum daily loads (TMDLs) and waste load allocations (WLAs) for sediments. These apply for the Moores Creek and Mill Creek streams in the James River Basin and Roanoke River Basin. As a result, companies discharging sediments into these river basins will have to comply with updated water quality-based effluent limitations or best management practices in their new or reissued general Virginia Pollutant Discharge Elimination System (VPDES) permits to align with the updated TMDLs. For example, companies discharging sediments into Pigg River must comply with the TMDL WLA of 39,200 pounds per year (lbs/year).

Water use limitation in areas with water stress

Measures to safeguard water resources must be multitargeted, addressing different causes of negative impacts. Therefore, in addition to restricting wastewater and pollution discharge into water resources, governments also impose use restrictions in areas, basins, or waterbodies facing scarcity situations, such as the following:

Brazil

In Brazil, the National Agency of Water and Basic Sanitation (ANA) manages federal water resources by hydrologic basin. Whenever there is scarcity of water resources, ANA declares it a critical situation and establishes restrictive requirements and emergency measures.

For example, on 14 May 2024, ANA Resolution 195 declared the critical situation of quantitative scarcity of water resources in the Paraguai hydrographic region until 31 October 2024.

Additionally, on 31 July 2024, ANA Resolutions 202 and 203 declared a critical water scarcity situation in the Madeira, Purus, Acre, and Iaco rivers, located in the Amazon region until 30 November 2024. The expiry date for the scarcity situation may be extended if the hydrological conditions remain critically low or suspended if they improve, raising the river’s water level (threshold not specified). As a result, potential restrictions to safeguard water availability in the mentioned rivers could impact companies that use water resources.

Canada

In Canada, the Alberta Ministry of Environment and Protected Areas published its Drought Response (DR) Plan on 2 May 2024. Among other things, the DR Plan identifies the Ministry’s five stages of drought and explains the Ministry’s procedure for declaring a water emergency. The DR Plan also identifies various drought mitigation tools that the Ministry can implement to manage drought conditions. As a result, companies that hold water licenses issued under the Alberta Water Act, R.S.A. 2000, c. W-3 could be subject to future water use restrictions if the Ministry either declares a water emergency or determines that it must enforce any of its drought mitigation tools. Alberta is currently in a Stage 4 drought, during which many water license holders and other water users experience water shortage. The drought is expected to continuously impact economic or environmental impacts.

Higher protection status of rivers

The increased urgency in the protection of water resources also gives rise to new approaches in the protection of these assets, especially regarding those framed as having a higher importance in the maintenance of other water environments.

For example, in Alaska, USA, House Bill No. 357 was adopted on 20 February 2024 to designate the Kuskokwim River as an “outstanding national resource water” (ONRW). As such, companies that interact with the Kuskokwim River could be subject to more stringent requirements in its permits, especially stricter wastewater discharge restrictions.

Similarly, on 7 May 2024, the Puerto Rico House of Representatives referred proposal PC2153 to the Commission on Natural Resources, Environmental Affairs and Recycling to declare the Piedras River Corridor in the Municipality of San Juan as a natural reserve. The proposal covers the river from its source in Caimito to its mouth in San Juan Bay, as well as the network of tributary streams in its waterways, its riparian lands or banks, and its conservation easements. The proposal includes provisions that would, among other things:

• Create an inventory of flora and fauna of the entire river and the riparian zone of the future reserve
• Create a cause of action for injunctions against entities that, through act or omission, may cause damage to the natural reserve

As a result, companies that own or operate facilities within or adjacent to the proposed reserve area may see more stringent requirements related to environmental and operational permitting and wastewater management.

Legal personhood to rivers

An even more special status protection to rivers is on its way: recognizing rivers have rights. There’s a growing legal movement on the Rights of Nature, recognizing that ecosystems, including trees and mountains, have rights. This started with the Equatorian Constitution, followed by a growing number of regulations and court decisions worldwide.

This resulted in several legal developments in 2017 to grant legal personhood to rivers in New Zealand, Colombia, and India:

• New Zealand granted the status of legal personhood to the Whanganui River — the third-longest river in the country and considered a living ancestor of the Māori
• The Colombian Constitutional Court granted legal personhood to the Rio Atrato, part of the Chocó biogeographic region, which flow through the territories of 91 indigenous communities
• In India, a ruling of the Indian High Court of Uttarakhand declared the Ganges and the Yamuna rivers as living entities with legal rights. Despite being shortly overruled by the Supreme Court, it planted the seeds for future regulations as the Madhya Pradesh state legislature recognized the Narmada River a living entity in 2017

These 2017 developments are influencing regulators up to this day…

North Carolina, USA

On 30 April 2024, the North Carolina General Assembly introduced HB923 to amend Chapter 77: Rivers, Creeks, and Coastal Waters of the North Carolina General Statutes. Specifically, HB923 would grant the Dan River Ecosystem rights protecting it from future pollution and other harms. HB923 would also require state environmental agencies to review and correct existing operations and laws that infringe upon the Dan River Ecosystem’s rights, as well as establish civil penalty and other enforcement measures to further protect the Dan River Ecosystem. If adopted, companies that hold valid licenses or permits to conduct any activity within the Dan River Ecosystem could be subject to amended licensing or permitting obligations. Companies could also be subject to litigation brought by the North Carolina state government and its citizens to protect the Dan River Ecosystem and be required to pay civil penalties and other damages.

Ecuador

On 15 July 2024, the Draft Organic Law reforming the Organic Law on Water Resources, Use and Development of Water was presented to guarantee greater protection of water resources, as well as ensure compliance with the basic rights inherent to human beings and nature. In particular — if adopted — it would introduce, among other things, a new specific principle for water protection and conservation, establishing that the environmental conservation of water, the protection of water sources, and the natural development of water recharge processes are inalienable rights of nature. Therefore, companies could expect future changes in water management regulations regarding water resources, and the use and development of water systems — specifically regarding safeguarding water sources and promoting the organic growth of water recharge processes.

Corporate sustainability reporting on water data

Water has been increasingly recognized as a business risk. Manufacturing companies, for example, are water intensive industries and depend on water for their operations. As a result, multiple stakeholders are requiring sustainability information on water. As such, sustainability reporting is an increasing trend as a practice for companies to demonstrate their environmental, social, and governance (ESG) performance.

A landmark regulation on sustainability reporting is Directive (EU) 2022/2464 of the European Parliament and of the Council of 14 December 2022 amending Regulation (EU) No 537/2014, Directive 2004/109/EC, Directive 2006/43/EC and Directive 2013/34/EU, as regards corporate sustainability reporting (also known as the Corporate Sustainability Reporting Directive — CSRD). As of January 2024, the CSRD will gradually mandate thousands of companies that operate within the European Union and meet certain turnover and size criteria to report on water performance indicators and metrics. By adopting a double materiality concept, the CSRD requires companies to assess and disclose information not only on sustainability impacts but also risks and opportunities. This means that companies must indicate — if material — their impacts on water resources, water pollution risks, and overall water sustainability data in their operations, as well as their downstream and upstream value chains. This approach also involves understanding the risks and opportunities water might have on the company, including its financial performance. In addition, companies must assess and report on impacts, risks, and opportunities related to ecosystems — which include water ecosystems, biodiversity, and on communities where they operate.

Companies subject to the CSRD must follow mandatory EU sustainability reporting standards to ensure reported information is comparable and that all relevant information is disclosed, as well as facilitate the supervision and enforcement of sustainability reporting. The first set of standards were adopted on 31 July 2023. The European Sustainability Reporting Standards (ESRS) includes the ESRS E2, which covers pollution (including water), and ESRS E3, which covers water and marine resources.

Examples of data points to be disclosed include:

• The companies’ policies adopted to manage its material impacts, risks, and opportunities related to water — such as on the use and sourcing of water and prevention of water pollution
• Actions taken and planned to achieve water policy objectives and targets, as well as allocated resources for their implementation — such as to restore and regenerate aquatic ecosystems and water bodies
• Water consumption, including areas of high-water stress, and contextual information including the water basins’ water quality and quantity

Risks to rivers must be addressed with universal regulations

It’s clear to see how the state of rivers worldwide is increasingly under threat from pollution, excess use, and climate change, leading to significant environmental degradation.

Various reports from different authorities highlight concerning trends, such as declining water quality, reduced river flows, and rising pollution levels. In response, governments, organizations, and corporations are taking multiple measures to safeguard these vital ecosystems. These measures include:

• Stricter discharge regulations
• Water use restrictions in stressed areas
• Granting legal rights to rivers
• Designating critical rivers as protected resources

Additionally, companies are being called upon to adopt sustainable practices, reduce water usage, and enhance wastewater treatment.

The urgency to protect rivers is also reflected in new regulatory trends, such as the Corporate Sustainability Reporting Directive (CSRD) in the European Union, mandating companies to disclose water usage and pollution data. As pressures mount on water resources, both public and private sectors must work collaboratively to ensure sustainable management of rivers and achieve global targets, like the United Nations’ Sustainable Development Goal 6 (SDG6).

Our freshwater ecosystems’ future depends on the effectiveness and enforcement of these collective efforts to mitigate the impact of human activities and climate change.