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. (2019) Coherence in EU law and policy for the protection of drinking water resources. FAIRWAY Project Deliverable 6.1 189 pp

 

The overarching FAIRWAY objective is to find solutions to the protection drinking water resources against pollution by pesticides and nitrates from agricultural practices. The legal framework is both very comprehensive and fragmented. Many directives apply directly and/or indirectly to the protection of drinking water resources against pollution and many of these impose different types of legal requirements upon EU member states to comply with. Attainment of the overarching purpose depends on the strength, coherence and effectiveness of the legal framework applicable to the FAIRWAY objective.

Here we discuss both the vertical and horizontal coherence of directives, compare some of the emerging themes and make recommendations for further investigation.

Note: The assessment method is described in »Coherence assessment methodology.  The assessment of vertical coherence was carried out by ten FAIRWAY partners and are based upon their perceptions and opinions. As such, some bias in the scorings and explanations is unavoidable. However the horizontal assessments of were each carried out by one partner only. To minimise bias and error the assessments were assigned in accordance with the partners’ main fields of expertise.

Details of the analyses are contained in the Appendices of the full report:

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Contents table

1. Vertical coherence of directives

2. Horizontal coherence of directives

3. Comparison of key themes related to vertical and horizontal coherence

4. Recommendations for further investigation

1. Vertical coherence of directives

We reviewed the vertical coherence of 10 EU directives which may have an impact on protecting drinking water resources against pollution by pesticides and nitrates from agricultural practices. The assessment included the

• »Water Framework Directive,
• »Groundwater Directive,
• »Drinking Water Directive,
• »Sustainable Use of Pesticides Directive,
• »Nitrates Directive,
• »Industrial Emissions Directive,
• »Environmental Impacts Assessment Directive,
• »Habitats Directive,
• »EU Common Agricultural Policy,
• »Rural Development Regulation (CAP Pillar II)

The assessment sheds light on to extent to which the various legal requirements of the various directives contribute to FAIRWAY's objectives. The focus of the assessment was on legal requirements to protect/improve natural resources that contribute to water quality, including general requirements to protect, enhance, or improve quality status or conditions, and specific requirements, (such as those setting specific limits for certain thresholds values) as well as legal requirements related to establishing the institutional frameworks for achieving improvements in water quality (such as requirements related to establishing criteria, frameworks, catchment management plans and so forth).

None of the directives is considered to have a negative average score. Five directives are perceived to be highly important and contribute very positively to the attainment of the overall purpose. These are the

• »Water Framework Directive,
• »Groundwater Directive,
• »Drinking Water Directive,
• »Sustainable Use of Pesticides Directive,
• »Nitrates Directive.

As evident from figure 2.11, average scores for these directives varied from 2 to 2.6 suggesting that respondents considered these directives to be reinforcing (+2) or even indivisible (+3) to the protection of drinking water resources.

Figure 2.11

For all the remaining directives, all average scores are significantly lower yet still positive. Respondents consider the

• Habitats Directive,
• Environmental Impact Assessment Directive,
• Industrial Emissions Directive,
• Rural Development Regulation

to be neutral (0) to or enabling (+1) the FAIRWAY objective. Average scores varied from 0.4 to 0.8, suggesting these directives have a slightly positive effect on the protection of drinking water resources. The lowest average score is given to the Habitats Directive (0.4). The CAP is given an average score of 1.7 and is considered to enable or reinforce the overall objective.

In theory, it could be argued that the overall legal framework is fit for purpose. Yet to what extent this purpose will be realized depends to a large degree on implementation. Concerns include how consistently requirements are implemented by member states, and the ambiguity of key terminology. These factors could have both positive and negative impacts on the vertical coherence of the directives with the FAIRWAY objective. Several directives, including the Habitats Directive and the Environmental Impact Assessment Directive, were perceived to have contributive potential, probably more than indicated by the average scoring rate alone. If this potential is realised fully under implementation, the degree of vertical coherence increases.

To illustrate, conservation measures under the Habitat Directive can include both site-specific measures (i.e. management actions and/or management restrictions), and general measures that apply to many Natura 2000 sites over a larger area, for instance, measures to reduce nitrates pollution. The Habitats Directive could also require restoration measures to achieve favourable conservation status for key Natura 2000 habitats that have been damaged by pressures from intensive agriculture. Restoration actions may involve reversing soil enrichment and re-introducing vegetation, reseeding to restore plant species diversity, controlling scrub, controlling invasive weeds and alien species and restoring hydrological management (e.g. by reversing drainage, restoring groundwater levels and regimes, and flooding and river regulation). This might contribute positively to the protection of drinking water resources, if these Natura 2000 sites and drinking water resources coincide.

Four reccurring themes emerge from respondents’ scores and comments about the coherence of the directives with the objectives of FAIRWAY. These are:

• Divided opinions about the effectiveness of fixed threshold values. Some respondents suggested fixed thresholds are effective, while others raised the concern that effectiveness may vary depending on scale and geographic location;
• Some directives are more supported by wider institutional frameworks than others, Respondent scores may be dependent on knowledge and understanding of biophysical processes, and the impact of EU policies on biophysical processes, and;
• In many cases, participants assigned more positive scores to interactions between requirements with more direct links to the FAIRWAY objectives, and less positive (and occasionally negative) scores to interactions with indirect links to FAIRWAY objectives.

The effectiveness of fixed thresholds for achieving the FAIRWAY objectives

There appear to be divided opinions between respondents about the effectiveness of fixed threshold values. Some respondents suggested fixed thresholds are effective, while others raised the concern that effectiveness may vary depending on scale and geographic location. To illustrate, it has been argued that threshold levels of nitrates (50 mg/L) and pesticides (0.1 μg/L) are not necessarily sufficient for controlling pollution. In the case of pesticides, fixed thresholds could limit the leakage of less harmful pesticides to the environment, while not being stringent enough for other more harmful types of pesticides. Despite overall positive scores, respondents were also divided about the effectiveness of the explicit limit to the amount of livestock manures applied on land (170kg/ha each year). Thus, it was suggested that differentiated threshold levels could be more appropriate, providing a leeway to take into consideration scale and geographic variation when setting threshold levels. The respondents’ comments underscored the limitations of ‘blanket’ approaches to setting limits, thresholds, regulations across diverse geographical landscapes.

Some directives are more supported by wider institutional frameworks compared to others

Legal requirements that are supported by wider institutional frameworks are often scored more positively than those that are not. To illustrate, respondents emphasized the difficulty of ensuring the non-deterioration of large groundwater bodies with variations in quality. And respondents believed there may be disconnect between the large time scales between impacts and effects on groundwater quality, and the timescales over which measures are taken to assess groundwater quality. Thus, in practice it may be difficult to prevent deterioration if measures do not reflect ongoing causes and rates of deterioration. These concerns warrant further investigation into the effectiveness of institutional requirements of environmental directives, such as requirements to establish frameworks (Art. 1 WFD) and national action plans (Art. 4.1 PD)

In many cases, participants assigned more positive scores to interactions between requirements with more direct links to the FAIRWAY objective and less positive (and occasionally negative) scores to interactions with indirect links to the objective to protect drinking water resources.

Scores suggest that project partners view direct interactions between the requirements of directives and the protection of drinking water resources more positively than indirect interactions. To illustrate, the requirement related to remedial action (Art. 8 DWD) targets a different temporal scale of management compared to the FAIRWAY objective. Remedial action includes restoration of degraded resources, while the FAIRWAY objective is perhaps more focused on long term prevention of pollution. Thus, respondents may perceive a less direct relationship between the long-term goals of FAIRWAY, and the more immediate reactive purpose of restoration. Moreover, the requirement to ensure that water used for human consumption should be free from any micro-organisms, parasites and substances which, in numbers or concentrations, constitute a potential danger to human health (Art.2, annex 1 DWD) might be unclear in terms of their relevance for pollution by pesticides and nitrates. Several respondents were uncertain about the applicability of this requirement to the protection of drinking water resources against agricultural pollution. Also requirements from apparently less relevant directives, such as the Habitats Directive, scored generally lower. This could suggest that there is some uncertainty with regard to the relationship between habitats and the protection of drinking water resources against nitrates and pesticides pollution. However, these scorings and comments may also be related to knowledge about biophysical processes. For example, restoring habitats often involves revegetation, which can create a buffer for pollutants and prevent agricultural runoff from entering waterways and decreasing water quality. However, this interaction is much less direct and transparent than more positively scored requirements related to other directives. The distinction between direct and indirect interactions between requirements of EU Directives and the objectives of FAIRWAY is an important finding that may speak to more institutional barriers between conceptualization of water quality policy, and on ground practice.

2. Horizontal coherence of directives

We also assessed the horizontal degree of coherence between each of the core directives and their individual requirements; the purpose being identify interactions between legal requirements and objectives that could hinder the attainment of the overall goal related to safe drinking water quality or reduce the contributive effect of any one directive or requirement towards achieving the overall goal. 

• Water Framework Directive,
• Groundwater Directive,
• Drinking Water Directive,
• Nitrates Directive and
• Pesticides Directive.

Key emerging themes: Three important themes emerge from the analysis of scores and comments about interactions between the requirements of the WFD, DWD, GWD, PD and ND. Some of these themes reinforce the findings outlined in in the vertical coherence assessment while others are uniqur to the horizontal coherence asssessment. The key themes are:

• Emphasis on the fact that the effectiveness of fixed threshold values compared to more general terms about protecting resources, reducing pollution, and performing restoration are scored generally lowed; 
• The tendency for project partners to score direct interactions more positively, and indirect interactions less positively, or occasionally negatively, and the possibility that varying degrees of knowledge about biophysical processes may have influenced these judgements;
• That, with minor exceptions, the scores for requirements related to environmental outcomes, including protecting resources, reducing pollution, and remediation, tended to be more positive than scores for requirements related to the institutional arrangements for achieving environmental outcomes, such as requirements to establish frameworks.

The effectiveness of fixed threshold values

These results reinforce the perceived limitations of fixed thresholds for achieving the FAIRWAY objectives that were also seen in vertical coherence assessment. This is not surprising given that the same partners were involved in both stages of the research. However, the results of the five surveys conducted about interactions between the directives suggest that fixed threshold values may also impede EU laws from supporting each other.

More general requirements related to protecting water quality and preventing pollution were perceived more positively than requirements associated with fixed thresholds. This seems to be due to the risk that a fixed threshold may be appropriate in some contexts, and insufficient in others. Thus, one potential area for improving coherence may be including terms in requirements to necessitate more strict thresholds under certain environmental conditions. For example, it may be possible to identify biophysical conditions that pose a greater risk to groundwater quality than others, and thus, determine that stricter thresholds should be adopted.

There were two exceptions to the tendency to score general requirements about achieving environment outcomes more positively than requirements about specific fixed thresholds. Firstly, in the context of groundwater limits, project partners did not consider any negative interactions between fixed limits and the requirements of the WFD, GWD, DWD and PD. These results contrast with scores given to other requirements related to specific threshold values; in other instances, project partners presented conflicting perspectives suggesting that there are negative risks associated with adopting fixed thresholds. Overall, the scoring for groundwater limits suggests that project partners feel the fixed thresholds related to nitrates may be more appropriate than other fixed thresholds, such as limits to contaminants in groundwater. Secondly, fixed thresholds related to the ND were viewed positively, compared to other fixed thresholds examined in relation to other directives. This may reflect the varying opinions of multiple project partners. Alternatively, the fixed thresholds related to nitrate concentrations may not produce the same risks as those identified in relation to other directives, such as concentrations of contaminants in groundwater.

Another issue raised in relation to fixed thresholds was the potential disconnect between drinking water requirements and requirements that affect water quality in wider catchments. For example, in theory, the requirements of the ND related to the amount of livestock manures applied on land, to apply common criteria for water pollution, and to limit values of 50 mg/l nitrates should target both drinking water quality and wider ecological conditions that impact water quality in catchments. In practice, these linkages are seldom realised due to various complexities. Importantly, these perspectives are subjective and warrant further investigation.

Direct versus indirect interactions & the influence of knowledge

Scores suggest that project partners view direct interactions between the requirements of directives more positively than indirect interactions. However, these judgements may also reflect the varying knowledge of project partners about biophysical processes, and how specific management practices may influence those processes. Thus, the findings presented in this report should be considered in the context of scientific literature about the relevant processes. We recommend a robust literature review to complement these findings.

For example, in the context of the Nitrates Directive, numerous interactions were viewed to be ‘neutral’. There are several explanations for this. In some instances, it is likely that these perspectives reflect a genuine lack of connectivity between ND objectives and other directives, particularly with regards to requirements under the PD. However, in some cases, these perspectives may reflect the more complex nature of interactions between nitrate levels and other environmental concerns. This is consistent with the conclusions of Chapter Two which suggested that less direct interactions may be more difficult to identify and score accurately.

Differences between requirements to achieve environmental outcomes & requirements related to institutional frameworks

Overall, the scoring suggests that requirements related to achieving environmental outcomes are viewed more positively than requirements related to the institutional frameworks that are used to implement environmental policy on the ground. For example, most requirements to protect resource, prevent pollution, and implement remediation are scored highly positively, such as those requirements under the DWD and GWD. By comparison requirements to establish a programme of measures, establish frameworks, and establish national action plans were viewed less favourably. For example, no positive interactions were identified between the requirement to establish a programme of measures and other directives. This may reflect disconnect between the environmental objectives of the directives, and the institutional processes required to ensure those objectives are achieved. Similarly, respondents suggested that national action plans may be ineffective as these are often not targeted at a specific source, but a whole aquifer. Thus, it may be necessary to introduce stricter measures in targeted areas.

Several respondents suggested that the disconnect between environmental objectives and the institutional frameworks employed to achieve those outcomes stems from time-lag between the causes of degradation, observable degradation, and the timescales over which condition monitoring and assessment is performed. One example given was related to groundwater contamination and the time required before measures of condition are likely to correctly identify concentrations of contaminants. However, there was also some variation in scores. For example, institutional requirements of the PD were viewed more favourably than the institutional requirements of other directives. This may reflect genuine differences in cohesion between legal requirements related to environmental outcomes and requirements related to institutional arrangements under the PD compared to other directives. However, these judgements are subjective and may also reflect bias.

3. Comparison of key themes related to vertical and horizontal coherence

Five key themes emerged from the analyses of vertical and horizontal coherence. Themes 1 to 4 are common to assessment of vertical and horizontal coherence, while theme 5 pertains only to horizontal coherence:

1. Divided opinions between respondents about the effectiveness of fixed threshold values. Some respondents suggested fixed thresholds are effective, while others raised the concern that effectiveness may vary depending on scale and geographic location;
2. Some directives are more supported by wider institutional frameworks compared to others;
3. Respondent scores may be dependent on knowledge and understanding of biophysical processes, and the impact of EU policies on biophysical processes, and;
4. In many cases, participants assigned more positive scores to interactions between requirements with more direct links to target objectives (whether FAIRWAY with regards to vertical coherence, or links between requirements of two directives with regards to horizontal coherence), and less positive (and occasionally negative) scores to interactions with indirect links to target objectives.
5. The scores for requirements related to environmental outcomes, including protecting resources, reducing pollution, and remediation, tended to be more positive than scores for requirements related to the institutional arrangements for achieving environmental outcomes, such as requirements to establish frameworks.

These themes are highly interrelated. Assessors scored requirements that stipulate more general terms related to protection and pollution prevention more positively than either requirements related to fixed thresholds, or requirements related to institutional arrangements. Further, some directives appear to be more supported by institutional frameworks than others. These perspectives suggest that, while the environmental objectives of EU directives support the FAIRWAY objective to protect drinking water resources against pollution by pesticides and nitrates from agricultural practices and support the underlying purpose of each individual directive, there are challenges associated with the practical implementation of legal frameworks. In some cases, legal requirements may be too inflexible and do not account for varying environmental and geographic landscapes. In other cases, the programmes, monitoring schedules, and planning involved in implementation may not be sufficient to deliver the desired environmental outcomes.

Other themes highlight the challenges associated with the research methods undertaken in this research. The subjective nature of scoring, and the varying levels of knowledge of each respondent are likely to have biased the data. However, significant efforts were made to reduce error, such as distributing the vertical coherence survey to ten different work package contributors, and selecting contributors with the greatest knowledge about each individual directive to complete the horizontal coherence surveys.

4. Recommendations for further investigation

The information in this section of FAIRWAYiS, together with that in »Governance arrangements in case studies forms the basis for research to be carried out in successive tasks.

In general, we will further investigate the reoccurring themes that have been described above. In particular, the effectiveness of the legal framework to attain the objective of protecting drinking water resources against agricultural pollution, might be adversely affected by fixed threshold values and ‘blanket’ approaches to setting limits, thresholds, and regulations across diverse geographical landscapes. Furthermore, the distinction between direct and indirect interactions between requirements of EU Directives, and the objectives of FAIRWAY is an important finding that may speak to more institutional barriers between the goals and aims conceptualization of water quality policy, and on ground practice. For example, the goal to reduce agricultural pollutants is very clearly linked to FAIRWAY objectives. The fact that institutional requirements, such as establishing frameworks, are perceived as contributing less may indicate a disconnect between frameworks, implementation, and environmental outcomes.

In addition to further investigate the reoccurring themes, we recommend investigating a number of potential inconsistencies or gaps more thoroughly. The three challenges that we consider most worthy of further investigation are the following:

The relationship between the Drinking Water Directive and the Water Framework Directive

Respondents emphasised that there appears to be a potential gap between the at the tap risk-based approach to improving water quality as adopted underpin the DWD for water quality at the tap and the wider goal to protect protection of drinking water resources under the WFD. The revision of the DWD introduces a risk-based safety assessment to the monitoring of water at the tap, enabling authorities to concentrate resources on potential risks to water quality at the source and scale of distribution, to avoid analyses of non-occurring parameters and identify possible risks to water sources at distribution level. Respondents suggested that there is disconnect between at the tap efforts to improve water quality under the DWD and efforts to improve the quality of drinking water resources more generally under the WFD. The DWD focuses primarily on the water quality at the tap without linking this sufficiently to drinking water resources and the WFD. One reason for this disconnect may be related to the physical distance between urban areas and river catchments. Respondents may be concerned about the fact that there are many sources of pollutants in river catchments that are not addressed at the tap. However, it is unclear whether these subjective perspectives reflect genuine risks to water quality. Thus, further research is required.

One example of this disconnect is related to groundwater bodies. Respondents highlighted a possible gap between the WFD and the DWD. More specifically they argue that the WFD only takes into consideration the in the context of the WFD, the number of groundwater bodies used for drinking water purposes, rather than also is decisive, without taking into account the water volume size of these bodies. Thus, a member state could use a very small groundwater body with ‘good status’, and a very large groundwater body with ‘poor status’. By a mere focus on number, this would equal to 50% compliance while the actual quality status of all sources would be poorer.

The relationship of the Water Framework Directive and the Nitrates Directive

Respondents suggest that there is a potential disconnect between drinking water requirements under the Nitrates Directive and requirements that affect water quality in wider catchments pursuant to the Water Framework directive. For example, in theory, the requirements of the ND related to the amount of livestock manures applied on land, to apply common criteria for water pollution, and to limit values of 50 mg/l nitrates should target both drinking water quality and wider ecological conditions that impact water quality in catchments. However, the objectives of the ND are primarily related to drinking water quality and only to ecology in the context of eutrophication. Some respondents therefore argue that existing requirements related to the use of fertilizers and manures are not comprehensive enough to support WFD ambitions. Respondents had different views on the nature of the relationship between the WFD and the ND though, and therefore we recommend this issue to be examined further.

Potential negative effects of the funding mechanism under the Common Agricultural Policy

Some respondents identified potential negative consequences of the CAPs funding mechanisms on the protection of drinking water resources. To illustrate, the Basic Payment Scheme (BPS) linked with CAP and cross compliance could means that farmers are keeping land in production just to receive this payment. In certain areas, farmers are spraying pesticide to remove rushes, so that the land is eligible under the BPS. This is resulting in an increase in pesticide run-off to the river. In addition, the areas declared for the BPS are also used to calculate the farm’s organic N loading for the Nitrates Directive. For that reason, a farmer can legitimately increase his/her stocking density up to 170kg/ha organic N, even though the land may not be able to support this agricultural intensity. Furthermore, farmers may also plough their grasslands within 5 years, to avoid that their grasslands will be considered as permanent grasslands in CAP, with more strict regulation. Ploughing of grasslands can strongly increase nitrate leaching. Overall, the CAP is perceived to contribute positively to the protection of drinking water resources against nitrates and pesticides pollution from agricultural resources. However, the funding mechanism and its implementation might also have some drawbacks that could affect drinking water quality adversely. This needs to be explored further.

 

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Note: For full references to papers quoted in this article see

» References