COMMON IMPLEMENTATION STRATEGY

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1 COMMON IMPLEMENTATION STRATEGY FOR THE WATER FRAMEWORK DIRECTIVE DRAFT PAPER Exemptions to the Environmental Objectives under the Water Framework Directive, Article Version

2 TABLE OF CONTENTS INTRODUCTION...3 PART A- General questions General approaches for the use of the different articles Internal logic of article 4.4: Internal logic of article Questions of scale Transparency and public support Transboundary context Proportionality of the depth of the analyses Management of uncertainties Common understanding of the deterioration of the status Technical infeasibility and considerations of alternatives Link with SEA and EIA Common understanding of different notions...12 PART B- Assessment of disproportionality Common understanding of disproportionality Which categories of costs and benefits to consider? How do the distribution effects of the costs and the benefits influence the assessment? How to take into account past expenditures? Where does disproportionality start?...17 ANNEX I: DRAFTING GROUP MEMBERS...18 ANNEX II: INFORMATION EXCHANGE

3 INTRODUCTION The first policy paper on environmental objectives was endorsed at the June 2005 Water Directors meeting 1. In this paper, the general agreement is explained that socio-economic considerations should not be taken into account in defining surface water status or groundwater status. Socio-economic considerations should only be taken into account when setting objectives for water bodies, including deciding whether the exemptions for Water Framework Directive (WFD) Article 4 ( 4, 5, 6 and 7) can be relied on. Therefore, the question of the sound implementation of those possibilities has become of importance. The scope and key concepts of the provisions and coniditions of Article 4.7 are given in the policy paper on exemptions allowed for new modifications or new sustainable human development activities 2. The existing guidance documents on "economics and the environment" and "identification and designation of heavily modified and artificial water bodies" bring also interpretation of key concepts. These and other useful documents are listed in the box below. Box 1: CIS-background documents -CIS Guidance document nr 1 Economics and the environment- Wateco idance_documents&vm=detailed&sb=title -CIS Paper Environmental Objectives under the Water Framework Directive -CIS Paper Exemptions allowed for new modifications WFD Art ematic_documents/environmental_objectives&vm=detailed&sb=title -CIS document Assessment of Environmental and Resource Costs in the Water Framework Directive ematic_documents/economic_issues/environmental_resource&vm=detailed&sb =Title -Cost-effectiveness guidance working group B This paper intends to clarify key questions and important concepts when implementing the provisions of article 4.4, 4.5 and 4.6. General principles are 1 This paper is available at: ronmental_objectives&vm=detailed&sb=title and will be referred to in this document several times. 2 This paper is also available at: ronmental_objectives&vm=detailed&sb=title 3

4 explained, sometimes illustrated with examples. It is however difficult to give concrete and widely applicable examples at this stage of the WFD implementation. Part A of this paper addresses general key issues, whilst part B is focused on issues related to disproportionate costs. This paper aims at ensuring adequate comparability between Member States and at providing useful and practical information to Member States water managers, stakeholders and NGOs and interested citizens. This paper is drafted by an informal drafting group of Member State representatives, stakeholders and NGOs 3. For a proper application of the exemptions to the environmental objectives of the Water Framework Directive, it is of key importance that the decision-making process is transparent for all stakeholders. t only do decision-makers need to be informed on costs and benefits of decisions, but also should this information be made available to the public. When reference is made to Good Ecological Status in this paper, as referred to in 4.4.1(a)(ii), for artificial and heavily modified water bodies Good Ecological Potential is meant. Moreover, one should not forget that Article 4.8 and 4.9 of the WFD apply when discussing exemptions. These articles request that the application of article 4.4, 4.5 and 4.6 does not permanently exclude or compromise the achievement of the WFD objectives in other bodies of water within the same river basin district and is consistent with the implemenntation of other Community environmental legislation. Furthermore, steps must be taken to ensure that the application of the exemptions guarantees the same level of protection as the existing Community legislation. 3 See Annex I for a list of members of the drafting group. 4

5 PART A- General questions 1. General approaches for the use of the different articles The agreed document on environmental objectives has clarified issues related to the place in the planning process of article 4.4 (extension of deadlines) and article 4.5 (less stringent objectives). It states that the relationship between exemptions is not a hierarchy in the sense that some are easier to justify than others. However, the conditions for setting less stringent objectives require more information and indepth assessment of alternatives than those for extending the deadline. Therefore, there should be a stepwise thinking process for considering what sort of exemption may be most appropriate. The figure below, taken from the environmental objectives paper, indicates the stepwise relation between Article 4.4 and 4.5. Can good status be achieved by 2015? Objective of good status by 2015 Except for those dependent on the timescale of natural processes, can the improvements necessary to enable good status to be achieved be made by 2015? Objective of good status as soon as natural conditions permit after st cycle planning Can good status be achieved before 2021 or can all the necessary improvements be made by 2021 except for those dependent on natural processes? Objective of good status by 2021 or as soon as natural conditions permit after 2021 Can good status be achieved before 2027 or can all the necessary improvements be made by 2027 except for those dependent on natural processes? Objective of good status by 2027 or as soon as natural conditions permit after 2027 Set a less stringent objective Less stringent objective by nd cycle planning Review less stringent objective by 2015 Can we move closer to, or achieve, good status before 2021? Good status or new less stringent objective by 2021 Maintain previous less stringent objective for rd cycle planning If a less stringent objective was set in previous plan, review again by 2021 Can we move closer to, or achieve, good status before 2027? Good status or new less stringent objective by 2027 Maintain previous less stringent objective for

6 1.1 Internal logic of article 4.4: Is it technically feasible to make the improvements in time to achieve good status by 2015? Is it technically feasible to make the improvements in time to achieve good status by 2021? Is it technically feasible to make the improvements in time to achieve good status by 2027? Are the improvements required by other EU legislation sufficient to achieve good status by 2015? Are the improvements required by other EU legislation sufficient to achieve good status by 2021? Are the improvements required by other EU legislation sufficient to achieve good status by 2027? (a) Good status by 2015; or Extended deadline:- Extended deadline:- (a) Good status by 2021; or Extended deadline:- (a) Good status by 2027; or Consider applying a less stringent objective Go to flow chart 4.5 (b) Good status as soon as natural conditions permit after 2015 (b) Good status as soon as natural conditions permit after 2021 (b) Good status as soon as natural conditions permit after 2027 Would it be disproportionately expensive to complete the additional improvements in time to achieve good status by 2015 or as soon after 2015 as natural conditions permit? Would it be disproportionately expensive to complete the additional improvements in time to achieve good status by 2021 or as soon after 2021 as natural conditions permit? Would it be disproportionately expensive to complete the additional improvements in time to achieve good status by 2027 or as soon after 2027 as natural conditions permit? Accompanying text will be added: - hierarchy in techn feasibility/disproportionate costs. -Uncertainty in third cycle, so no unrealistic efforts in specifying the objectives. However, looking ahead is useful and necessary. -International conventions and other obligations shouldn't be overlooked. -There is a grey area between disproportionate costs and technical infeasibility 6

7 1.2 Internal logic of article 4.5 Where good status cannot be achieved by 2015 or by an extended deadline Is on-going human activity the cause of the water body or is their natural condition such that it causes being at risk of failing to achieve Ngood status by 2015? Ye Could the environmental and socio-economic needs served by the activity be achieved by other means which are a significantly better environmental option not entailing disproportionate costs? N Ye Less stringent objective cannot be Is it technically feasible to make any improvements to the status of the water body by 2015? N Less stringent objective applicable = protect status against further Ye Are any of these technically feasible improvements required by other EU legislation? N Can any of the improvements be made by 2015 without disproportionate expense? N Ye Ye Estimate the improvements that will be delivered by compliance with other EU legislation Estimate any the other improvements that can be made by 2015 without disproportionate expense Less stringent objective applicable = expected improvement in status by 2015 Accompanying text will be added: -Assumption: Test on feasibility/disproportionality is interchangeable for 4.4 and 4.5 -Article 4.5(a), the words "environmental and socio-economic needs" should be read as follows: consider both, even if one of the two is zero. Internal logic of Article 4.6 Article 4.6 differs from articles 4.4 and 4.5 in that it relates to events which could not reasonably have been foreseen. Hence it is not used for setting alternative objectives during the improvement planning process rather it is used after the event, as a defence to justify why an objective which was set in a river basin management plan has not been met. This justification must be provided in the following (update of the) river basin management plan. 7

8 2. Questions of scale Member States have to set objectives for individual water bodies. They have to report in the river basin management plans each water body for which the objective will not be good status by 2015; the alternative objective that will apply, and the reasons for this. Assessments of whether the exemption tests are met may be undertaken for groups of water bodies. This would presumably apply when national decisions are taken affecting exemptions or when the costs and benefits of making the improvements in each water body in the group are similar. National measures need to be translated in water bodies objectives. For example, it has to be worked out what introducing uniform emission standards for a certain pollutant would mean for individual water bodies (i.e. with different dilutions; different existing concentrations; different numbers of inputs etc). Or it has to be worked out what if setting national permit conditions will deliver in terms of improvements to particular water bodies. Finally, in some cases, an assessment at a wider scale, eg at national level, can already provide justification. 3. Transparency and public support The final decision on the application of exemptions needs to be transparent and the public needs to be involved. Public information and consultation is not only an obligation of WFD Article 14, it also provides useful information in earlier stages of the decisionmaking process. The public may add valuable information on costs and particularly on benefits. They can also give an early indication on weighing the costs and the benefits, thus on acceptability. They will help clarifying who causes a water pollution problem, and who pays for its solution. Early involvement might also help in enhancing the feeling of ownership of a certain decision. Finally, the reasons for the application of an exemptions will have to be summarised in the relevant River Basin Management Plan. 4. Transboundary context Regarding international river basin districts on the territory of the Community, there is a clear obligation (Article 3.4) to coordinate the requirements for the achievement of the environmental objectives. This includes that application of exemptions. So far, there is no example known where a Member States has claimed for transboundary actions. However, the issue is raised if there is a context in which a MS can claim for transboundary actions. However, some examples are known on the transboundary transfer of payment of measures <inlcude Meuse salt mines example> Comparable criteria? (same basis for decision-making) n co-operative attitudes can lead to a wider extension of exemptions 8

9 Clarity about who causes a problem, who pays for its resolution and who benefits (i.e. the distributional consequences see also transparency and public support) 5. Proportionality of the depth of the analyses Use common sense Bear in mind the consequences of a wrong action in deciding what is a proportionate analysis. 6. Management of uncertainties Below, some key practical considerations regarding uncertainty in objective setting from an economics perspective are given. Uncertainty is an inevitable feature of objective setting, and will be a key feature of the first set of river basin plans. Uncertainty will reduce over the medium to long term but will always be present. There can be uncertainty about: Whether, and to what extent, a water body is adversely impacted and who causes the impact; The impact of policies already in place or planned and various trends and developments, including innovation and technical change; The cause of an adverse impact on a water body; The effectiveness of measures in addressing an adverse impact on a water body (note that this will have an effect on the certainty of the benefits as well); The costs associated with measures; and The benefits resulting from improvements to the status of water bodies. Efforts to reduce uncertainty should be proportionate to the difficulty of the decision at hand and the implications of a taking a wrong decision. However, there is no point attempting to reduce uncertainty if doing so will not clarify the decision at hand. It may be better simply to act on the basis of principle or, where possible, consensus. Uncertainty should always be taken into account in assessing the risk that an action may be disproportionately costly. However, uncertainty can only be taken into account in objective setting where the level of uncertainty can be estimated and appropriately recorded. In many situations, uncertainty about the benefits of actions may be systematically greater than uncertainty about costs. For example the costs of a measure may be quite well known but the benefits uncertain. This may be because of lack of confidence about the status of a water body or whether and how the benefits of improvements will be realized. This may also be because of the difficulty of measuring some types of impact. The objective setting process can take this into account by weighing the benefits in an appropriate way which takes into account the additional uncertainty of 9

10 benefits relative to costs. The same logic should apply where costs are more uncertain than benefits, though this is likely to be less common in practice. From a 2005 study on the estimation of costs for environmental regulation 4, it shows that ex-ante cost estimates are often a factor of two times greater than what was estimated ex-post. Where there is significant uncertainty, the risk of incurring disproportionate costs can be reduced by choosing measures that can be readily and iteratively added to, or adapted, in the future on the basis of information on their effects and the associated benefits. There may be differences in the uncertainty about measures and their consequences between sectors. For example, the effectiveness of agriculture measures may be more uncertain than the effectiveness of water industry measures. Conversely, the costs of agricultural measures may be less than the costs of water industry measures. In considering action and setting objectives Member States will need to balance the risks of failing to meet objectives with the economic risk of failing to use the most costeffective means of achieving those objectives. -Uncertainty is more acceptable when a certain action is taken to reduce the uncertainty (research programme) -Uncertainty by timing issue should be included (eg inflation in 2027 unpredictable) -A way of dealing with uncertainty will be a sensitivity analysis (DK) or the UK approach of broad ranges of certain, less certain, very uncertain. -Also consider technological uncertainty, expected benefits from innovation that do not materialise. 7. Common understanding of the deterioration of the status Temporary deterioration Article 4.6c places an obligation on Member States to return a water body to its status prior to the deterioration 'as soon as reasonably practicable'. In this sense, temporary means 'as long as it is not reasonably practicable to return the water body to its status prior to the deterioration'. In the policy paper on Article 4.7, the following remark is made regarding temporary effects: 'For example, temporary impacts due to the establishment of the modification during the building phase are not addressed if no deterioration of status or potential could be expected thereafter in the water body or parts of the water body.' Furthermore, it states that 'an exemption under Article 4.7 will be unnecessary in those cases in which an Article 4.6 exemption is applicable.' 8. Technical infeasibility and considerations of alternatives In principle, only issues of a technical nature should be taken into account in applying the technical infeasibility test. For example, cost savings may be associated with extending the deadline for achieving good status. However, such savings are not relevant in deciding whether making the improvements by the deadline would be technically infeasible. 4 See page 6 10

11 In practice, the greater the effort expended in trying to overcome practical issues of a technical nature, the greater the likelihood that technically feasible ways of making the improvements will be found. This means that consideration of the costs and benefits will need to be considered alongside technical feasibility. Where the benefits resulting from an improvement would be substantial, a much higher degree of effort to find a technically feasible option is likely to be appropriate than where the benefits of an improvement are expected to low. Link with BAT/BEP: going beyond BAT may be technically feasible and proportionate in some cases. In others it may be technically infeasible or disproportionately expensive. Place of innovation Different cases: e.g. time to build a specific equipment. Continuum with socio-economical unfeasibility Identify and add some past "negative examples" of how the right choice wasn't made since not all alternatives were properly assessed 9. Link with SEA and EIA A Strategic Environmental Analysis is not relevant in the case of discussion on the environmental objectives and exemptions. <but add relevant outcomes of SEA/WFD workshop 19 April London and add reference to DG ENV guidelines>. Some improvements in status may fall within the scope of the EIA Directive and hence require an EIA (see diagram below). The EIA directive gives a list of some of the environmental factors to consider in assessment of environmental costs and benefits which should be a starting point. 11

12 Will making the improvement to the status of the water environment involve a change or extension to a project listed in Annex I or Annex II to EIA Directive? Is that change or extension likely to have significant adverse effects on the environment? Environmental impact assessment not required by the EIA Directive Subject proposed change or extension to an environmental impact assessment in accordance with the EIA Directive Contrary to WFDArticle 4.7, the scope of project under the EIA directive and measures related to 4.4 and 4.5 is often not the same. Although there are some cases where there is a link between WFD Article 4.4/4.5 and the EIA Directive, like water level change for improving the environment which requires an EIAssessment (Netherlands) or new licencing for fish farms for the continuation of water extraction (Denmark). A flow chart on the question of an EIA assesment is needed for possible water management measures can be found below. If a certain water management measure is subject to an environmental impact assessment, some Member States expect problems related to planning. However, this should be dealt with pragmatically. For example, the WFD assessment for exemptions can be complemented only for the additional elements in the EIA directive. In the same way, information from an already carried out EIA should be used as much as possible in exemptions tests. However, a formerly carried out EIA is no blank check for application of the WFD exemptions. 10. Common understanding of different notions Natural conditions This term refers to the conditions which dictate the rate of natural recovery. It recognises that it may take time for the conditions necessary to support good 12

13 ecological status to be restored and for the plants and animals to recolonise and become established. It also recognises that due to varying natural hydrogeological conditions, groundwater bodies may take time to reach good chemical status. In case of natural conditions preventing good status, should a less stringent objective be the exemption to apply or an extension of deadlines after 2027 (no date mentioned). Article 4.4 might be preferred as it is easier to apply for. A clear distinction should be made between natural conditions and natural cause : Natural cause or Force majeure Natural cause refers to things like floods and droughts which give rise to situations which cause us to make use of the water environment in ways that results in its deterioration of status (e.g. by taking emergency action to save life and property during floods; by supplying the public with drinking water during prolonged drought; by allowing pollutants to be washed into the water environment by floods). The floods and droughts themselves (as natural events) cannot directly affect status. There is a difference between background concentrations of naturally occurring substances and historic anthropogenic pollutants, for instance in sediment that gets resuspended either by a natural cause such as floods or an anthropogenic activity such as dredging. Extreme floods This term recognises that, whilst we have some knowledge of the quantitative range of numerical flows and levels that might occur and the possible frequency of flood events, it will not be possible to foresee all flood events or to extrapolate all of their consequences in terms of environmental and other impacts. The definition of extreme floods should be in line with the definition in the future Floods Directive, more precisely with category (a) in Article 6(3) of this Directive 5. (a) floods with a low probability, or extreme events scenarios; (b) floods with a medium probability (likely return period 100 years); (c) floods with a high probability, where appropriate. Prolonged droughts PM technical input from other CIS groups 5 Reference currently based on the text of the Common Position. 13

14 PART B- Assessment of disproportionality The decision on what is disproportionate is in the end a political decision. The debate leading to this decision should be informed by outcomes of economic tools, such as a cost benefit analysis. But also distributional effects and affordability to pay will be taken into account in the final political decision. Elements for a cost benefit analysis and other factors determining the decision on disproportionality are described below. 11. Common understanding of disproportionality In the WATECO-guidance (p. 193), the following common understanding of 'what is disproportionality is given': Disproportionality should not begin at the point where measured costs simply exceed quantifiable benefits; The assessment of costs and benefits will have to include qualitative costs and benefits as well as quantitative; The margin by which costs exceed benefits should be appreciable and have a high level of confidence; In the context of disproportionality the decision-maker may also want to take into consideration the ability to pay of those affected by the measures and some information on this may be required. This analysis might need to be disaggregated to the level of separate socio-economic groups and sectors, especially if ability-to-pay is an issue for a particular group within the basin. 12. Which categories of costs and benefits to consider? In general, a cost-benefit analysis provides the soundest way in assessing disproportionality. However, no fixed method applicable to all cases can be provided, but some considerations on which costs and benefits to include are given below. The quantity and quality of information and analysis to inform disproportionate cost judgements should be proportionate to the difficulty in making the judgment and the issues at stake. Categories of costs and benefits are already listed in various papers 6. This information is summarised and elaborated further below. Different evaluations: financial and economic Both the costs and benefits can be measured using financial and/or welfare economic evaluation criteria. Financial and welfare economic evaluations are different as they are undertaken from different point of views, and will therefore form different basis for the assessment of disproportionality and exemptions. However, these evaluations are in effect closely interrelated and should be viewed as three parts of an integrated evaluation of the costs and benefits of the targets in the WFD, and specifically when testing exemptions. Definition of environmental and resources costs 6 Eg the WATECO-guidance, the 'Environmental Objectives' paper 14

15 Costs to be taken into account are direct costs, environmental costs and resource costs. In 2003 and 2004, CIS drafting group ECO2 drafted a document on Environmental and Resources Costs in the Water Framework Directive. In summary, environmental costs are defined in this assessment report as the environmental damage costs to the water environment and its users as a result of alternative competing water use, while resource costs are defined as the costs of an economically inefficient allocation of water, either in terms of water quantity or water quality, over time and across different water use(r)s. The calculation of resource costs can be based upon the estimation of environmental costs, but there may also be resource costs in the absence of environmental damage costs. Costs to be taken into account as a minimum There are different cost categories to be taken into account when preparing exemptions from the WFD objectives. In practice, no detailed information will be available for all categories. The table below gives examples on which costs are taken into account in UK and DK and in the WATECO-guidance. Table. 1. Description of different estimations of the economic costs in relation to The Water Framework Directive WATECO UK DK Direct or financial costs Included Included (financial costs) Included (budgetary costs) Adjustment for subsidies and Perhaps Included Included taxes Included Price adjustment (factor price -> consumer price) t discussed t included Included Consumer surplus t explicitly included Discussed but not included Included Administrative costs Perhaps Discussed but often not included (regulatory costs) Discussed but often not included Associated non-water environmental costs and benefits of measure Included Included when possible Included to some extent Wider economic effects in other Partly discussed Discussed but sectors (income and jobs) often not included Total costs is named Economic costs Economic costs or Social costs Source : Jacobsen (2007) Discussed but often not included Welfare economic costs Going from a general scale to a detailed costs might cause difficulties in some cases, However, experiences in the UK so far lead to the conclusion that discussions on disproportionality at water body level could focus on the main categories. Other less important - categories identified at river basin district level were simply not relevant anymore. Benefits Opposite the opportunity costs is the economic value (benefits) of a project, change in water service or a specific water use. The benefits comprise both marketed benefits of the water use, both the direct value of water as a production input and consumable, and the value of water services for fish production and other marketed products, and non-marketed benefits, e.g the value of water for recreation and for biodiversity. Marketed benefits have a market- price that reveal the value of this type of water use, but non marketed benefits do not have a market price. The value has to be revealed by valuation methods. It is difficult to attribute monetary values to many types of 15

16 environmental and social non marketed benefits, but there are several concepts and methods available to do this appropriate, and better than in the past. But there are still more uncertainties linked to benefit assessments than to cost assessments because of the non-marketed nature, and because benefits are not always quantified/quantifiable In a Cost Benefit Assessment all benefits should be described and as far as possible assessed in monetary terms. 13. How do the distribution effects of the costs and the benefits influence the assessment? When comparing different investment decisions or policy options it is essential to include the distribution of benefits and costs in the final decision. Affordability of certain sectors or groups will also play a significant role in the final decision. How to determine distribution effects Financial CBA s can serve as starting points to determine the potential winners and losers of obtaining the WFD target in the specific water body. Hereby distributional issues can be assessed. This can for example be done by listing the financial consequences for the different groups (i.e. state, private businesses, industry, households) in a separate balance sheet. To assess these financial consequences all physical consequences of the measures must be outlined and described. Such a description can be based on the water plan, including the work done as part of the cost-effectiveness analyses. Transaction between water users should also be described, and the financial aspects of the instruments used to implement is also important; e.g. if command and control measures or quotas are used or taxes and subsidies. If the measures are publicly financed the implementation will lead to higher taxes, or by use payments, so that the expenses will be laid on the households and the firms. Decision makers will not only need to take account of the overall balance between costs and benefits, but also of o The extent of any deviation from the polluter pays principle o The implications for particular groups in society and o Affordability for particular sectors of the economy. For example, the most cost-effective programme of measures will not necessarily be the one which maintains or improves conformity with the polluter pays principle transboundary context Affordability -affordability has a political dimension and is related to budget restrictions -definition of affordability = cost significant to the people involved. -affordability is also about transparency. -A link to cost recovery should be made, it should be made clear who is paying for what (EEB study) 16

17 14. How to take into account past expenditures? As already stated in the 'Environmental Objectives' paper, the costs for basic measures according to existing EC water related directives (UWWD, IPPC, Nitrate etc.) can not be included directly into the analysis for justification of exemptions. Additional costs can be defined as the difference between total costs after implementations of WFD measures (y) and total costs after implementation of other EU legislation (x) (i.e. nitrates directive). Local or national initiatives (z) should not be included when calculating the existing costs and / or the additional costs induced by WFD measures. Sunk costs are important when they are charged as replacement value on water bill. The residual life of assets should also be considered. A measure that is disproportionate now, might not be disproportionate in the future, for example a flood defence with a finite life replacing will be more proportionate when it comes round to the time to replace it anyway. 15. Where does disproportionality start? It is clear that no single threshold value could be given here, but that the issue on where disproportionality starts depends on many factors, of which many are discussed in this paper. For example, the level of uncertainty and the scale of the disporportionality assessment influence the decision on disproportionality. Furthermore, affordability and past expenditures play a role in discussing the starting point of disproportionality. 17

18 ANNEX I: DRAFTING GROUP MEMBERS 18

19 ANNEX II: INFORMATION EXCHANGE I. Existence of tools in the MS to help the analyses II. List of studies from the CB study of WFD implementation III. List of other useful information Public background information can be found on: c_documents/environmental_objectives/background_information&vm=detailed&sb= Title 19

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