Yet while the negative stance to environmental legislation made by port operators in the past has now by and large given way to a more positive approach, there remains a flurry of concern that the administrative and legal processes involved in environmental compliance places significant limitations on what the port operator can and cannot do. It is further compounded by the fact these administrative and legal procedures often differ from member state to member state, a situation that suggests a need for standards.

The most contentious of the current batch of requirements, however, are the Waste Framework and Water Framework directives, both of which will impact upon any port expansion and dredging plans.

The Waste Directive is particularly onerous to port operators. The ruling stipulates that producers of waste in the harbour are required to provide “reasonable and appropriate” steps in the handling of waste, ensure that waste is transferred only to an authorised agent and that an adequate written description of the waste is given. It is also the port operator’s duty to obtain a disposal licence for the deposit of any dredged material at sea.

The rub here is that there is no definition of what actually constitutes waste material, and as a consequence all sediments from dredging operations, whether contaminated or not, are deemed waste products and have to go through the same administrative red tape as for any other type of waste products. Indeed, a significant number of cases, admittedly not all related to port activities, have required an interpretation of waste and a distinction between recovery and disposal from the European Court of Justice. Calls for a revision to the ruling are now very audible and the industry hopes that the European Parliament will exclude clean sediment from an amended directive, which is presently under deliberation.

However, the impending Water Framework Directive will also impact on dredging operations due to the potential contamination of the water column from the dredged up sediment. Dredging operations by their nature always have a certain short term impact on the ecological and environmental status of a water body. However at this stage the exact impact of terminology used in the proposal for a Dredging Directive is somewhat unclear, despite pleas from the European Sea Ports Organisation (ESPO) for a more long-term approach to the edicts considering the short-term nature of any sediment, contaminated or otherwise, in the water column.

Time will tell as to how exactly the Water Framework and similar Directives will impact on port planners, but impending regulations, according to international law firm Norton Rose, suggest that before consenting to activities in the harbour area port operators may have to comply with a River Basin Management Plan (RBMP). This is aimed at protecting designated waters and helping those waters to achieve (and maintain) good ecological status by 2015.

Norton Rose says that an RBMP, to be introduced in the UK under the 2003 Water Environment Regulations as part of the country’s implementation of the European Union Water Framework Directive, is intended to provide a mechanism for the future management of both water use and of activities affecting water status. The Water Framework Directive, as implemented in the UK at least, may have some bearing not only on dredging operations but also on navigation and other port and harbour activities.

In a briefing note, Norton Rose says dredging operations in the harbour will be subject to certain statutory requirements including a duty to obtain consent in writing from the Minister of Transport to remove any object, or any materials from any part of the seashore lying below the level of mean low water springs if the operation is likely to cause an obstruction/danger to navigation; and a requirement to obtain a Tidal Works Licence from the Harbour Authority, which may contain requirements to protect the environment.

Lucy Fletcher, a senior associate and environmental specialist at the law firm, told Port Strategy that although no cost analysis has been carried out, the directives are certain to have a major cost implication for port operators, not least because of the need to engage consultants and legal advisors in “a lot of up-front planning”.

According to Roel Hoenders, the policy advisor co-ordinating the work of the environment and marine committees of ESPO, there has been a number of complaints from port operators about the procedures, and permits to carry out dredging or port expansion plans have been blocked. This, however, is largely attributable to agricultural and fisheries communities looking to ramp up the cost of their land if port planners need to offer compensation under the Habitats Directive, the implications of which featured in the January issue of PS.

“If expansion plans encroach on protected sites then compensation has to be granted and in many cases ports have had to buy land to compensate, but the actual realisation of this has been difficult as agricultural groups have blocked the procedure to get more money for the land,” said Mr Hoenders.

Another piece of legislation that is bound to slow up the planning stage, if approved, is the introduction in Europe of Marine Spacial Planning. This, says Lester Aldridge LLP’s Andrew Hignett, will impact on ports in a number of ways as responsibility for Harbour Revision Orders will pass from the Department for Transport to the Marine Management Organisation (MMO). The MMO will manage a new system of marine licensing, which will overlap and possibly supercede a port's ability to regulate operations under its existing statutory powers.

Mr Hignett also says a new statutory framework for the licensing of dredging will be introduced. “[Marine Spatial Planning] is a European Union initiative that is likely to be rolled out to the whole of Europe in the longer term. In terms of competitiveness, it is more likely to have an impact on ports competing with non-EU ports such as the Mediterranean ports (as is the case with the Habitats Directive),” he says.

Other directives nudging their way in to Europe’s statute book include the Marine Bill and the Marine Strategy Directive. The latter will oblige member states to ensure EU waters are “environmentally healthy” by 2020.

But with so many directives to contend with – more than 30 with many more still to come - uncertainty abounds and port operators are at odds with often ambiguous clauses. As Ecoports Foundation Herman Journée tells PS, they are vague and confusing and this leads to uncertainty and high financial costs, “because you just don’t know if what you’re doing complies with one directive or flouts another”.

The Ecoports Foundation, with a membership of about 400 ports and environmental agencies, including those from South America, Cambodia and Vietnam, will report to the European Commission with proposals for changing the directives and delivering standards and harmonisation to the rules. To this end, Ecoports signed a cooperation agreement with ESPO in January this year.

Indeed, according to Norton Rose, many companies are surprised to find that if they are in breach of environmental permits and regulations then the enforcement remedy is often a criminal one. The potential impacts for failing to comply with environmental regulation include: cost penalties, remediation costs and legal costs; penalties for individual responsibility placed on directors and senior officers; scrutiny – an individual or a company with a criminal record will find that its operations will come under increasing scrutiny, not only by its employees and shareholders but also its financiers, analysts, competitors and potential merger partners; and loss of reputation.