Main authors: Susanne Wuijts, Jacqueline Claessens, Luke Farrow, Donnacha G Doody, Susanne Klages, Christophoros Christophoridis, Rozalija Cvejić, Matjaž Glavan, Ingrid Nesheim, Froukje Platjouw, Isobel Wright, Jenny Rowbottom, Morten Graversgaard, Cors van den Brink, Inês Leitão, António Ferreira, Sandra Boekhold
Editor: Jane Brandt
Source document: Wuijts, S. et al. (2021) Protection of drinking water resources from agricultural pressures: effectiveness of EU regulations in the context of local realities. FAIRWAY Project Deliverable 6.3R 70 pp

 

In accordance with the central question of this analysis, this section is structured around three elements: (1) consistency of EU regulations, (2) coherence across sectors and levels, and (3) mode of implementation and the attainment of objectives at local level. The responses to the questions that are relevant to these elements are described here. The total results of the aggregated questionnaires are summarised »Questionnaire summary results.


Contents table
1. Consistency of EU regulations  
2. Coherence across sectors and levels  
3. Mode of implementation and the attainment of objectives at local level

1. Consistency of EU regulations

Consistency manifests itself in the degree to which commonly agreed policy objectives are recognised at different levels by different stakeholders and within different policy arenas. They must not contradict each other and this requires clarity about roles and responsibilities, and management across scales.

Principle: Clear roles and responsibilities towards objectives

All the countries studied have transposed the relevant EU directives into national law. The allocation of roles and responsibilities for each directive is clearly demarcated at national level in the planning phase, although assigned to different ministries. For the regional/catchment, local and farm level, the division of these roles and responsibilities for (strategic) planning for water quality ambitions often becomes less clear from the perspective of the respondents, although in all of the countries studied, farmers have to prepare a plan for the use of fertilisers.

Principle: Appropriate scales within basin systems

In most countries studied, except in the UK, different ministries are responsible for agricultural policy and environmental protection. The collaboration at national level between ministries and between water authorities was reported as being in place and working more or less for all the countries studied. The issue of governance at the appropriate scale within basin systems or other relevant scales, is not regarded as a major issue affecting effectiveness for the countries studied. More difficult is the involvement of different sectors, government departments and administrations, in addressing water quality issues from agriculture at different institutional levels and scales (e.g. Greece, Germany). At river basin and catchment level, good collaboration was reported too (e.g. Denmark, France and Norway) but not for all countries. In these collaborations, farmers’ organisations are represented in several cases. The level of direct collaboration with individual farmers, however, differs between the countries studied.

Principle: Capacity (towards objectives)

Authorities in most cases have the capacity to lead, monitor and evaluate the execution of policy plans. Lack of staff and finances was frequently reported as an obstacle to carrying out all responsibilities (e.g. Germany, especially at the legislative level, and England). A decrease in these resources cascading from the national level to the regional/catchment level can be identified in some countries according to the interviewees (e.g. Greece, Netherlands), but it can also be the other way around: lack of staff at the top, national level, and sufficient staff at the bottom, e.g. providing farm advice (Germany).

Principle: Stakeholder engagement

Stakeholders involved include public authorities, water companies, farmers’ organisations, industry associations, NGOs and experts, such as agricultural advisors and consultants. Several institutional levels are involved in the attainment of objectives at local level and interaction with stakeholders does not take place at all levels. In the case studies, farmers and local citizens are given the opportunity to be engaged. For some countries the stakeholder engagement set-up for the MAP in the case study is reported as a new way of collaboration (e.g. Slovenia, Romania and Greece).

Stakeholders in the MAPs of the case studies were engaged based on their interest in clean water, local knowledge, knowledge on best practices, such as catchment advisors (e.g. England, Portugal), sources of pollution (e.g. Slovenia, Netherlands, Germany, Denmark, Norway), established networks (e.g. Northern Ireland, Germany, Portugal) and the means and power to act (e.g. Slovenia, Romania, Denmark). Norway reports that commercial private actors have not yet been included in the river basin committee because of their primarily economic focus. However, the importance of their role in the process has been acknowledged and dialogue is being channelled through other meeting arenas. Other reasons for restrictions are group size (to allow discussions) and costs (advisors), and England reports that some stakeholders are reluctant to speak if the regulator is also part of the stakeholder group.

Some countries report that different authorities from different institutional levels participate in the case study (e.g. Germany, Norway, France). Others report that there is a disconnect between the different levels (e.g. Greece) or a single layer governance approach (Slovenia). This may also differ for different case studies and regions in a country (e.g. Germany).

All countries stress the importance of environmental information, although socio-economic implications may play a major role in the decision-making when stricter measures need to be implemented (Germany). Citizen engagement has only been used in a limited way so far in the process of decision-making regarding the protection of drinking water resources. In Germany, there is a citizen science initiative which is collecting water samples and analysing nitrates from private groundwater extraction points and from surface waters (https://www.xn--vsr-gewsserschutz-wqb.de/nitratbelastung/, last accessed January 14th, 2021) and an initiative which is working on the methodology and publishes manuals in order to improve the validity of nitrates analysis (https://uol.de/aktuelles/artikel/stickstoffverbindungen-und-die-neugier-an-der-wissenschaft-3775, last accessed on January 14th, 2021). In England, citizen science is considered a fundamental opportunity for understanding and promoting local engagement in the Catchment Based Approach (https://catchmentbasedapproach.org/learn/citizen-science-volunteer-monitoring/, last accessed January 12th, 2021). Other factors mentioned as relevant in the process of decision-making are the overriding interest of the right to drinking water (Slovenia) and the costs for providing good quality drinking water (France).

Experiences with consistency in the Derg catchment case study

Textbox 1 outlines how the inconsistencies between EU directives and its application at farm level can negatively impact water quality in the Derg catchment case study (Republic of Ireland – Northern Ireland); a study which highlights the complexity of the interactions between European and national agri-environmental legislation, EU subsidy payments and catchment characteristics. In some cases these interactions can have detrimental impacts on water quality. The ND and SUPD limit agricultural pressure in intensively farmed catchments. However, in more marginal upland catchments they enable farmers to operate above the carrying capacity of the soil by including marginal land, cleared of rushes, in the total farm organic N loading calculations required for the ND. However, in practice, this livestock is often concentrated on the small number of higher-quality grazing fields on the farm, resulting in higher nutrient loads.

Furthermore, receipt of the Basic Payment Scheme (BPS) of the Common Agricultural Policy (CAP) is a vital income source for cattle and sheep farmers in upland catchments. In 2017/18, the cattle and sheep sector in Northern Ireland would have operated at a loss if the income from the BPS had been removed (DAERA, 2019b). Farmers are under pressure to maximise the eligible area for the BPS on their farm, the main driver for the control of rushes using MCPA. At the same time this hampers the sustainable preservation of drinking water resources.

Textbox 1: Consistency agricultural and water quality policy in the Derg catchment.

The poorly drained, acidic and nutrient-poor soils in the Derg catchment provide ideal conditions for the proliferation of rushes (Juncus sp.), which easily outcompete grasses in the absence of preventive management (Kaczmarek-Derda et al., 2019). At present, mapping indicates that rushes occupy approximately 5% of agricultural land in the catchment, which reflects efforts to suppress rushes and maintain grass cover (Cassidy 2018). These efforts are driven by targets set by both intensive and extensive farms in the catchment. In an intensive dairy system the control of rushes is driven by production and nutritional targets, while in part-time low intensity beef and sheep systems the main driver is to maximise the land area classed as “actively farmed” and eligible for area-based payments under the common agricultural policy (CAP) basic payment scheme (BPS). As such maintaining and maximising the eligible area, is a priority for both intensive and extensive farms in the catchment.

The eligible agricultural land area declared under the BPS is also used to calculate the organic N loading for each farm under the EU Nitrates Directive (ND) (91/676/EEC). The ND sets a limit of 170 kg organic N/ha which equates to a stocking rate of 2 Livestock Units (LSU)/ha. Exceeding this limit is only permissible if the farm applies for a derogation.

While farmers are required to apply the Code of Good Agricultural Practice for grazing (DAERA 2008) in order to prevent inter alia compaction, poaching and erosion, in practice stocking rates are often higher that suggested by estimates of grazing capacity. For example, based on the 2018 returns from the farm census (DAERA 2019), the current average stocking rate in the catchment is 2.4 LSU/ha. This figure indicates that the overall stocking rate in the catchment is above the carrying capacity of the soil and can only be maintained through measures such as the installation of artificial drains and the intensive management of land through nutrient applications, liming, grazing, cutting, harvesting and reseeding. In addition, the use of herbicides, particularly 2-methyl-4-chlorophenoxyacetic acid (MCPA), to suppress rush growth is widespread. Because there are only a limited number of fields available to produce high dry matter forage crops, farmers will periodically apply MCPA to these fields to reduce the risk of rushes or other broad leaf weeds impacting silage quality.

In less intensively managed areas, while stock numbers are low, spraying of MCPA offers farmers a cost-effective and long lasting option for suppressing rush growth and maintaining grassland as ‘actively farmed’, but with negative impacts on environmental quality. The combination of these measures to maintain stocking density can result in significant negative impacts on water quality. A recent monitoring program in the Derg catchment showed that 32% of the abstracted water, sampled every 7 hours over an 8 month period in 2018, exceeded the drinking water standard of 0.1 μg/l for MCPA.

2. Coherence across sectors and levels

Coherence elucidates the extent to which laws and policies systematically reduce conflicts and promote synergies between, and within, different policy areas to achieve the outcomes associated with jointly-agreed policy objectives (Nillson, Zamparutti et al. 2012), imposing demands on regulatory frameworks, roles and responsibilities, decision-making and management across scales.

Principle: Clear roles and responsibilities

The tools reported which facilitate collaboration in water quality management at a specific level (horizontal collaboration) are: (1) a pesticide forum that brings together a range of organisations and is highlighted as having a key role under the national action plan in providing stakeholder interaction (England), (2) incentives from cross compliance and enforcement to adherence of good agricultural practice (Slovenia, Portugal and Germany), (3) interdepartmental committees and county offices (Romania and Norway), (4) advisory boards for river basin management committees (Portugal), state regional representatives (France), (5) water councils (Denmark) and (6) a leading role for water agencies (Slovenia). Collaboration tools reported which facilitate policy coherence are focused primarily at national or river basin level, although there are exceptions.

In Germany for instance, joint working groups are meeting regularly for coordination purposes at national, federal, and river basin levels for both the WFD and the ND.

Obstacles to effective horizontal collaboration between different authorities and agencies mentioned are: competing interests between sectors and institutional levels (Norway, England, Germany, Romania, Slovenia), municipal stakeholders being involved in the management of water companies (e.g. England, Portugal), the lack of monitoring data (Slovenia) or access to data (France, Germany), limited decision-making powers or round table setting (Germany), lack of staff (Germany [at national level] and France) and citizen engagement (Portugal).

Principle: Appropriate scales within basin systems

The issue of management at appropriate scales is not regarded as a major issue hindering coherence for the different countries studied but the involvement of different sectors working in the field of agriculture and water quality is considered to be more relevant (e.g. Germany and Greece). River basin management committees (Slovenia, Netherlands, France and Denmark) and sub-basin committees (Norway) are reported as successful bridging mechanisms between different sectors. Similar examples are given for protection zones and nitrate vulnerable zones. The whole of Slovenia, because of its size, has been designated as a nitrate vulnerable zone and all issues are, therefore, addressed at national level. A similar approach has been followed by Austria and the Netherlands. This choice however, sets demands to the monitoring of nitrates in order to identify agricultural contributions (91/676/EC, Article 5.6) and develop appropriate nitrate action programmes (ECJ case law (C-481/18, C-197/18)). Germany cites a working group for the sustainable use of pesticides implementation (participated in by national and federal governments) as a good example of the bridging between administrative borders.

Principle: Policy coherence

Instruments which were reported to promote policy coherence relevant to horizontal collaboration in water quality governance, include: multi-sectoral conferences (e.g. Germany, Greece, Norway), conferences for transboundary river basins (Portugal, Romania), interdisciplinary workshops (Netherlands), inter-agency programmes for specific issues (Northern Ireland, Portugal and Norway), information sharing with the agri-food-industry (Northern Ireland) and guidance on best practices (England). Some countries reported limited horizontal communication (e.g. France, Greece) and lack of clarity in responsibilities (water and agriculture).

Principle: Regulatory frameworks in place and enforced

Regulatory frameworks and enforcement play an important role in achieving jointly-agreed policy objectives, although there are different views regarding the right balance between voluntary and legally-based measures to support these objectives. Some countries rely primarily on legally-based measures (e.g. Portugal, Germany) and thus have a strong role for enforcement, other countries are more committed to voluntary measures and enforcement plays a less important role in practice (e.g. Netherlands, France), or there is a mix of both types of measures (e.g. Denmark and Norway). Economic incentives, such as compensation, play an important role in relation to both voluntary and mandatory measures (e.g. Denmark, Germany and Norway). Norway refers to the information provided by the municipal agricultural advisor, the MAP coordinator and research projects as an incentive, for instance in cases where there is disagreement about the cause of a problem.

Principle: Transparency and integrity in decision-making

Conflict prevention and resolution are addressed in different ways. For example, Northern Ireland refers to the communication plan in The Rivers Trust for the Source To Tap project as a means, Germany (Lower Saxony) to Round Tables for Agriculture and Water Protection and the Netherlands to the agricultural advisor as arbiter. Legal procedures are rarely used in practice for conflict resolution regarding nitrate and pesticide pollution e.g. caused by difficulties related to control and proof of an offence (Germany).

Mechanisms reported to support conflict management and resolution are the arbiter role of the municipal agricultural advisor and MAP coordinator (Norway, Netherlands), cross-compliance (Portugal), financial incentives (Germany: Farmer-waterworks cooperation), compensation and land consolidation (Denmark), agricultural support (France, Germany), public consultation and the role of civil initiatives (Slovenia).

Experiences with coherence in the Lower Saxony case study

The Lower Saxony case study (Germany, see Textbox 2) describes how parallel policy objectives regarding biogas production and fertilisation can result in negative impacts on water quality. Increasing amounts of manure and biogas by-products create a bottleneck in their application in regions with high livestock densities, resulting in rising nitrate levels in groundwater. To remediate this development, manure treatment and export to other regions and federal states are increasing (Landwirtschaftskammer Niedersachsen 2020). In regions with a focus on arable farming and little livestock breeding, there is potential to substitute part of the mineral fertilisers with manure from the intensive animal breeding regions. However, there are many factors which hamper application in practice such as: (1) the limited nitrogen surplus which is legally acceptable according to the German Fertilisation Ordinance (2017, 2020) and the possibility of exceeding this limit when using manure or other organic fertilisers; farmers in arable regions under this condition tend to use mineral fertilisers, (2) obstacles to improving the nitrogen efficiency of fertilisation by the timely supply of baseline data (Nmin-values in spring) to farmers by farm advisors and delays in the national implementation of new techniques, (3) the possibility of health risks related to untreated manure caused by limited hygiene standards for farmyard manure in the Fertiliser Ordinance (2012) and (4) the lack of manure storage capacity in arable farming areas, as local authorities hesitate, or even refuse, to grant building permits for storage facilities. Due to pressure from the European Commission, the duty to set up a nitrogen soil surface budget and the necessity of not exceeding a certain level of nitrogen surplus was abolished and replaced by the duty to record the fertilisers applied (Fertilization Ordinance 2020).

Textbox 2: Coherence water, fertilisation and energy policy: case study Lower Saxony (Germany).

Since 2000, the installation of biogas plants has been subsidised as a result of the passing of the German Renewable Energy Act (EEG, 2000, 2004, 2008). The law was adopted in 2004 and 2008, each time with more favourable conditions for the electric energy produced by cogeneration units of biogas plants. From the beginning of 2009, biogas plants operating with > 30% manure received even higher subsidies. As a result, the number of biogas plants installed increased from 600 in 2010 to 1,174 in 2018 (3N Kompetenzzentrum, 2020) and, in turn, increases the total amount of organic fertilisers (Meergans and Lenschow, 2018). The German Fertilisation Ordinance (2007), and the national implementation of the Nitrates Directive (1991), could not block this development, as the 170 kg/ha limit it prescribed for organic nitrogen in the national implementation only referred to N from animal manure. Consequently, after years of decreasing concentrations of nitrates, since 2011/2012 in the north-western region of Lower Saxony, the trend for the average yearly concentration of nitrates in groundwater of selected wells reversed and showed a marked increase in 2017 exceeding nitrate standard of 50 mg/l (Roskam 2018).

To counter this development, Lower Saxony issued a ministerial decree (ML, MS, MU, 2015), which obliged biogas plants to provide references to prove that the biogas residues they produce would be used according to the good agricultural practice defined in the national Fertilisation Ordinance.

In the adapted German Fertilisation Ordinance (2017), the 170 kg/ha limit also includes other types of organic and organic-mineral fertilisers and soil conditioners besides manure such as biogas residues, compost and sewage sludge.

3. Mode of implementation and the attainment of objectives at local level

The role of the mode of implementation and the attainment of objectives at local to regional level comes forward most explicit in the questions related to the principles ‘Appropriate scales within basin systems’, ‘Policy coherence’, ‘Capacity’, ‘Data and information’, ‘Regulatory frameworks in place and enforced’ and ‘Trade-offs across users, rural and urban areas and generation’.

Principle: Appropriate scales within basin systems

Management instruments to support drinking water pollution control are used by all the countries studied, but different strategies are chosen by individual countries to facilitate use across levels and scales. England and Germany report a high degree of advice and guidance for farmers at catchment and farm level to support the implementation of a high level of regulation cascading from national and regional levels. Slovenia, Germany and Portugal stress the strong role of enforcement and cross-compliance. Other countries refer to the importance of monitoring and reporting and the development of programmes of measures from the WFD (e.g. France, Norway, Denmark). For Greece, a large variation was reported between management instruments used for the different directives. In Norway regional drinking water authorities are invited to comment on municipal spatial planning.

The designation of safeguard zones around drinking water resources was frequently put forward as a successful instrument for protection. Other (mandatory) instruments mentioned are the use of monitoring to support the evidence base and the development of programmes to support a sustainable use of pesticides (education on use by farmers, e.g. Portugal, Norway, Germany and UK [‘Get Pelletwise' Campaign]) and manure (nitrate vulnerable zones, Greece).

Principle: Policy coherence

Vertical coordination across different levels of governance in relation to nitrate usage is reported as limited for several countries. Obstacles reported are data protection at farm level (Germany), a disconnect between national policy and bottom-up initiatives (Netherlands, England), fragmentation of policy objectives (Norway), overlapping responsibilities (Greece) and a lack of funding for local collaboration (Greece, Slovenia).

Principle: Capacity (at the local level)

Several governance measures were adopted by countries to build capacity to deliver water policy measures. Collaboration with the private sector (public authorities, private water companies and the agri-food industry) is reported. In England, the agency called Natural England (a non-departmental public body, sponsored by Defra) has teams of catchment advisors. This organisation enhances collaboration further by contracting private consultants to deliver water advice to farms. The Environment Agency makes Catchment Base Approach (CaBA) grants available to host catchment’s partnerships. Some countries report the blocking role of GDPR (General Data Protection Regulation, EU/2016/679) for data sharing between local projects.

Principle: Data and information

Most countries studied report that measures taken are based on knowledge of issues, interventions that could be enabled, and the opportunities offered by the legal framework which vary from country to country as their legal frameworks differ. Several countries rely on voluntary based measures where interventions may be linked less explicitly to nitrate and pesticides reduction and may be driven by economic motivations as well. Knowledge is based on scientific studies and best practices in other areas. Agricultural advisors play an important role. Not enough feedback has been received about the use of ‘learning by doing’ (adaptive capacity) to improve the effectiveness of interventions.

Principle: Regulatory frameworks in place and enforced

The role of legally based measures varies strongly between countries, but this does not provide any indication as to the mode of implementation at the local level. Countries may have opted for a larger proportion of voluntary based measures and yet have attained the objectives at local level. The link between voluntary measures and water quality improvement is more ambiguous, because other interests, from farmers or other stakeholder groups, may play a more important role. Legally based measures on the other hand, should be achievable, enforceable and capable of reducing emissions to the levels required (e.g. ECJ case law C-266/99, C-165 to 167/09, C-237/07). This level of scrutiny is required in all environmental compartments, according to the European Commission (EC 2017).

Principle: Trade-offs across users, rural and urban areas, and generations

The role of trade-offs in costs, benefits and distributional effects of various alternatives in agreed service level decisions, is dependent on how many of the measures that need to be taken are legally based. Portugal for instance, which has a strong legal base for the measures that need to be taken, uses the 'polluter pays' principle, which is anchored in the legal framework. For other case studies, which rely more on voluntary based measures, a balanced trade-off between costs and benefits for farmers, is much more prominent in the selection of measures (e.g. Denmark, Netherlands, Northern Ireland and Norway).

Experiences with mode of implementation and objectives’ attainment in the North Greece case study

The North Greece case study (see Textbox 3) shows how the introduction of the MAP can serve as a bridging mechanism to promote coherent policy implementation and objectives’ attainment at local level. So far, complicated and fractured legislation, unclear or overlapping responsibilities, the lack of rules for verification and validation, the distribution of financial means across institutional levels and the limited use of instruments for compliance and enforcement have been reported as factors hampering the realisation of water quality ambitions.

Farmers are often not very aware of their legal obligations regarding water quality. Most of the farms in this part of Greece are family businesses with small capital and no long-term plan. Farmers would, therefore, need incentives such as capacity building and starting grants for every single change in their production, but the continuity of such incentives is a point of concern.

Textbox 3: Mode of implementation and objectives’ attainment in the North Greece case study.

The ruling of the European Court of Justice (ECJ, C-149/14) that the implementation of the ND in Greece lacked any targeted action programmes has resulted in the development of Nitrate Action Programmes in the Nitrate Vulnerable Zones, but their implementation is taking place at a slow pace. In this process, a disconnect can be identified between the policy making at national level and the realisation at regional or local level.

The local discontent regarding the overlapping legislation, the multitude of institutions and government services responsible for planning and implementation, and the pressure from the European environmental legislation, have led to the establishment of the Directorate of Environment, Industry, Energy and Natural Resources of Central Macedonia Prefecture that cooperates with the local directorate of development and environment of the Kilkis Prefecture.

This rearrangement created a more centralised approach in the management of water resources, leading to a better and higher funding opportunity for large waterworks and a top-to-bottom implementation of rules and legislation from the EU and the establishment of directorates for water management in every region. In this way, the legislation became somewhat clearer at local to regional level and the problems for each region became apparent. But the small and everyday issues are not addressed this way, so the role of regional water utilities and water councils should be strengthened.

To this end, a multi-actor approach (MAP) was set up in the Axios case study area to address groundwater pollution. The MAP aims to involve farmers, companies providing advice, regional government, water boards, the pesticide industry, farmers, contractors, public authorities, and consumers and inform them about the monitored effects of their practices on water quality objectives and facilitate action.


Notes:

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