|Main authors:||Froukje Maria Platjouw, Harriet Moore, Susanne Wuijts, Sandra Boekhold, Susanne Klages, Isobel Wright, Morten Graversgaard and Gerard Velthof|
|FAIRWAYiS Editor:||Jane Brandt|
|Source document:||»Platjouw F. M. et al. (2021) Coherence in EU law and policy for the protection of drinking water resources. FAIRWAY Project Deliverable 6.1R 200 pp|
Globally, agriculture and water play a substantial role in the 2030 Agenda for Sustainable Development as reflected in the Sustainable Development Goals (SDGs). Sustainable water management (SDG6, Clean water and sanitation) and sustainable agriculture (SDG2, Zero Hunger) are both primary goals, and neither one can be achieved independently of the other. In the EU, the productivity of agriculture has greatly increased during the last decades. This increase has been enabled in part through the increased availability of fertilizers, manures and pesticides, which has led to pollution of groundwaters and surface waters from nitrates and (residues of) pesticides. Throughout the EU, nitrates and pesticides are currently among the major sources of pollution of drinking water resources. This raises concerns since safe drinking water is vital for public welfare and an important driver of a healthy economy.
Farming activities, which occupy nearly half of the EU territory, are thus one of the causes of pressures on water bodies, impacting on the health of vital water ecosystems and drinking water resources. To address the pollution by nitrates and pesticides from agricultural practices, the EU has developed an extensive set of directives, guidelines and policies over the last few decades. To illustrate, the requirements of the Drinking Water Directive (DWD) set an overall minimum quality for drinking water within the EU and provide a situation where a minimum level of provision of drinking water quality is guaranteed. Other directives aim at decreasing the losses of nitrogen and pesticides to the environment and specifically aim at decreasing the leaching of nitrogen to groundwater and surface waters (the Water Framework Directive (WFD), Nitrates Directive (ND) and Groundwater Directive (GWD)). The Directive on the Sustainable Use of Pesticides (PD) was adopted to achieve a sustainable use of pesticides by promoting the use of integrated pest management and alternative approaches or techniques. Other policies address efficient and clean use of resources or wider agriculture-environment issues (e.g. Common Agricultural Policy (CAP), Rural Development Programme, or nature conservation through the Habitats Directive (HD)) and may also have significant implications for the use and losses of nitrogen and pesticides from agriculture.
Despite this evolving water, environmental and agriculture legislation, it has also been recognized in various studies and working groups that several EU directives, nutrient and pesticides-related EU regulations, and the Common Agricultural Policy should be better integrated when focusing on the protection of drinking water resources. As part of its Smart Regulation policy, the European Commission announced in its Work Programme for 2010 that, "to keep current regulation fit for purpose, the Commission will begin reviewing, from this year onwards, the entire body of legislation in selected policy fields through "Fitness Checks". The purpose was to identify excessive burdens, overlaps, gaps, inconsistencies and/or obsolete measures which may have appeared over time.
This section of FAIRWAYiS has a comparable aim. Many EU directives and policies are directly or indirectly relevant for the protection of drinking water resources from agricultural practices. Each of these instruments has its own objectives and requirements. Here we review relevant EU directives and policies, identify legal requirements, and assess their degree of coherence with the overall objective of the FAIRWAY project, i.e. the protection of drinking water resources against pollution caused by pesticides and nitrates from agriculture in the EU, (‘vertical coherence’) as well as their horizontal coherence. An assessment of horizontal coherence between a number of directives enables the identification of any potential negative interactions between these directives. For example, we scored to what extent the requirements of the Drinking Water Directive are coherent with the requirements of the Water Framework Directive, the Groundwater Directive, the Nitrates Directive, and the Pesticides Directive. Horizontal inconsistencies, gaps, overlaps and counterproductive regulations and legal requirements could potentially jeopardize the attainment of the overall purpose of protecting drinking water resources and carry the potential to undermine the effectiveness of the overall legal framework. For that reason, both vertical as well as horizontal coherence needs to be investigated. The distinction between vertical and horizontal coherence is demonstrated in Figure 1.1 with the example of vertical coherence between the WFD and the FAIRWAY objective, and horizontal coherence between the WFD and other directives.
In general, coherence concerns how well different laws and policies work together. Ideally, the objectives of different laws and policies should complement each other, and antagonistic interactions should be avoided. Coherence is therefore a key factor for a successful EU regulatory and policy regime that aims to prevent and to manage diffuse pollution of vulnerable drinking water resources due to agriculture. Coherence can be defined as an attribute of law and/or policy that “systematically reduces conflicts and promotes synergies between and within different policy areas to achieve the outcomes associated with jointly agreed policy objectives”. A sectoral policy can be effective in achieving its specific objectives without being coherent in relation to the objectives of other policy areas.
Good governance requires a coherent, efficient and effective governance approach. Effectiveness can be measured through analysing the implementation of EU directives and policies at the national, regional and local level. This is the primary focus of »Governance arrangements in case studies where the national level of the directives’ implementation has been comprehensively assessed. In this section we analyse primarily the level of coherence within the EU legal framework.
The focus of this section of FAIRWAYiS is on legal requirements. The directives and policies that have been reviewed contain a range of different types of requirements, including monitoring requirements; reporting requirements; requirements related to coordination between sectors, authorities and countries; requirements related to instrument choice (such as voluntary or economic instruments, in addition to legal rules), and requirements related to the enforcement and implementation. The main focus of this report however is on two types of requirements in particular:
1. Requirements to protect/improve natural resources that contribute to water quality, including:
- general requirements, such as those to generally protect, enhance, or improve quality status or conditions, and;
- specific requirements, such as those setting specific threshold values or other fixed limits
2. Requirements to establish the institutional frameworks for achieving improvements in water quality
- requirements related to establishing criteria, frameworks, catchment management plans and so forth.
These requirements have been identified, screened, scored and analyzed in terms of their vertical coherence with the overarching FAIRWAY objective of protecting drinking water resources against pollution by pesticides and nitrates from agricultural practices, and horizontal coherence with each other. The following table provides an overview over the instruments that were reviewed. The methodology for the assessment is further explained in »Coherence assessment methodology.
Table 1. 1 Overview of legal directives and policies reviewed
|The following instruments have been reviewed:|
|»Water Framework Directive||[Directive 2000/60/EC of the European Parliament and of the (WFD) Council establishing a framework for the Community action in the field of water policy]|
|»Drinking Water Directive||[Council Directive 98/83/EC of 3 November 1998 on the quality of (DWD) water intended for human consumption]|
|»Nitrates Directive||[Council Directive 91/676/EEC of 12 December 1991 concerning the (ND) protection of waters against pollution caused by nitrates from agricultural sources]|
|»Groundwater Directive||[Directive 2006/118/EC of the European Parliament and of the (GWD) Council of 12 December 2006 on the protection of groundwater against pollution and deterioration]|
|»Sustainable Use of Pesticides Directive||[Directive 2009/128/EC of the European Parliament and of the Council of 21 October 2009 establishing a framework for (PD) Community action to achieve the sustainable use of pesticides]|
|»Habitats Directive||[Council Directive 92/43/EEC of 21 May 1992 on the conservation of (HD) natural habitats and of wild fauna and flora]|
|»Environmental Impacts Assessment Directive||[Directive 2014/52/EU of the European Parliament and of the (EIA) Council of 16 April 2014 amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment]|
|»Industrial Emissions Directive||[Directive 2010/75/EU of the European Parliament and of the Directive Council of 24 November 2010 on industrial emissions (integrated (IED) pollution prevention and control]|
|»Rural Development Regulation (CAP Pillar II)||[Regulation (EU) No 1305/2013 of the European Parliament and of (RDR) the Council of 17 December 2013 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) and repealing Council Regulation (EC) No 1698/2005]|
|»EU Common Agricultural Policy||[Common Agricultural Policy (CAP) 2014]|
Currently, there are several interesting ongoing developments. Firstly, an evaluation of the CAP reform is due in 2020. Secondly, nutrient and pesticides-related EU regulations for fertilizers will soon enter into force and replace the EU fertilizer regulation 2003/2003 for mineral fertilizers. Adjustments will be made to product-related EU regulations for pesticides. These regulations are directly applicable to member states without the need for transposition into national law. The regulations are relevant for the protection of drinking water resources against pollution since they regulate the entering into markets of products that can affect water quality. They also set quality standards. In this report, these regulations will not be further discussed.
Table 1.2 Legal directives excluded from the review
|Relevant instruments not included in the report|
|EU Common Agricultural Policy||[CAP reform 2020]|
|Circular Economy Package||[COM (2016) 157 final 2016/0084 (COD) Circular Economy Package - Proposal for a Regulation of the European Parliament and the Council laying down rules on the making available on the market of CE marked fertilising products and amending Regulations (EC) No 1069/2009 and (EC) No 1107/2009]|
|Regulation on plan protection products and pesticides residues||[Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC]|
|SEA Directive||[Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment]|
|Sewage Sludge Directive||[Council Directive 86/278/EEC of 12 June 1986 on the protection of the environment, and in particular of the soil, when sewage sludge is used in agriculture]|
|National Emissions Ceilings||[Council Directive 2016/2284 of 14 December 2016 on the reduction of Directive national emissions of certain atmospheric pollutants, amending Directive 2003/35/EC and repealing Directive 2001/81/EC]|
|Directive on Environmental Quality Objectives||[Council Directive 2008/105/EC of 16 December 2008 on environmental quality standards in the field of water policy]|
Note: For full references to papers quoted in this article see