Foreword∗

Rivers are a characteristic of a country’s landscape, as they meander through fields, pass old cities and cross industrial areas. They attract one’s attention when studying maps, reminding us of the school days, where a country’s capital and main rivers did get ample attention, and in general they appeal to the imagination: the ‘rolling river’, playing its role in folk lore and songs. The appeal rivers still have to the public at large in one sense or other, can- not hide the common knowledge in our time that virtually all great rivers in our part of the world are seriously polluted. A pollution derived from the surroundings the river so pleasantly passed on its way to the sea: from the fields it gathered the run-off of manure and pesticides used on farms and nurseries, the cities contrib- uted their sewage water in quantities reflecting the number of their inhabitants, and finally, industry gave its waste in liquid form to the passing stream. In all ar- eas the high level of activity, leading to prosperity and growth in black numbers, inevitably leads to countervailing red numbers on the environmental side of book keeping: the disposal of waste in steadily increasing quantities into the waters of the nearby river, which never protests, but just keeps rolling along. In many instances the term ‘open sewer’ adequately describes the river in its current function. This apparently is the price we have to pay for economic de- velopment in our society. One can observe that developing countries are fast los- ing their state of innocence in this respect, in their zeal to copy the Western world also in this sphere. Not so long ago, a few decades only, in many European countries the seri- ous state of deterioration of national rivers was realized and in a common effort a dramatic change for the better began, by curbing disposal of toxic waste. The en- vironmental measures were focused on point sources, that is everything disposed of via pipes, connecting industrial and municipal sources with the river water, directly or indirectly. Thus, over the years, in regard to some toxic substances re- markable successes were achieved, with reductions of over 70 per cent (e.g. cad- mium in the Rhine). [xii] The cleanup of rivers became a standard element of national environ- mental policy (backed up, as always, by EC legislation). While authorities were gradually getting point source pollution more under control, with more or less realistic goals set for the near future, it increasingly became clear that the ultimate target, namely a clean river, would never be reached if the immense contribution to its pollution by non-point sources resulting from agricultural, municipal and

∗ In: J.M. van Dunné (Ed.), Non-Point Source River Pollution: The case of the river Meuse, Technical, Legal, Economic and Political Aspects, p. xi-xvii. (Proceedings Confer- ence, Rotterdam 1995).

2 MILIEU-AANSPRAKELIJKHEIDSRECHT industrial activities could not be energetically combated. With the acknowledgment of this task and challenge, a change of direction which took place on a world-wide scale, it soon became clear to environmentalists that the problems in this field dwarfed the ones known thus far. Taken from any angle - technical, legal, economic, political - the issues that arose proved to be far more complicated than those related to point source pollution. Instead of pipes, discharging substances in substantial quantities - and therefore, relatively easy to measure - one is confronted with an innumerable number of very small discharges by way of run-off, precipitation or part of waste water collected from local sources. The toxic contribution is hardly visible, and the actors usually are invisi- ble, and if made visible, can be counted in the thousands. The measuring tech- nique needed to map the intricate process of non-point source pollution in a spe- cific section of a river, requires a high degree of specialization and ingenuity, and as a consequence is time consuming and costly. The number of potential polluters involved also has its consequences in the legal sphere. There is safety in numbers, as we know, especially when prosecution is sought or an action for damages. The legal context, therefore, leaves the tradi- tional lawyer in distress: the normal rules of administrative, penal or tort law will prove too blunt to be effective in the prosecution of this type of polluter. Finally, the economic and political features of non-point source pollution are posing authorities considering environmental measures formidable difficulties. The reduction of this kind of pollution directly influences the specific source of economic activity, be it agriculture, industry or municipal house keeping, with a reduction of income as a consequence, usually in combination with expensive abatement measures. The financial aspects alone stress the need for solutions to be found which are acceptable to the groups of polluters involved, without having recourse to the use of traditional instruments the administration has. As will be clear from this general introduction to the subject of non-point source pollution, it is an outstanding topic for interdisciplinary study: technical, legal, economic and political aspects are intimately inter-related. Every separate and exclusive approach to this complicated matter in one of these disciplines is doomed not to find a solution which will be acceptable in society. Therefore, when in the course of a study directed at the pollution of the River Meuse, commissioned by the Municipality of Rotterdam in conjunction with some Dutch drinking water companies, the idea came up to organize an interna- tional conference, it was self-evident that it should be done on an interdisciplinary basis. The Meuse Research Project was set up in 1992 and is carried out by the International Centre of Water Studies in Amsterdam as far as the technical side is [xiii] concerned, and by the Institute of Environmental Damages in Rotterdam, Erasmus University, for the legal research. Incidentally, both institutes were in- volved in the Rhine Research Project, also initiated by Rotterdam, which started in the mid-1980s and has led to the conclusion of long-term environmental contracts by Rotterdam with industry in Switzerland, France and Germany, at the beginning of the 1990s. That research, dealing with point source water pollution with heavy metals, was the subject of two international conferences in Rotterdam, in 1990 and 1992.1 This book contains the Proceedings of the 1995 Rotterdam conference on non-point source water pollution. There are three parts, reflecting the themes of

1 The Proceedings have been published, see infra p. xxvi. FOREWORD 3 the conference programme: I The Meuse Research Project, II International and EC Aspects of Pollution of the River Meuse, and III Voluntary Agreements on Pollu- tion Reduction in Europe and the USA. A short description of the contributions to the themes follows here. First, Part I, The Meuse Research Project. The objectives and approach of the project are presented in the first, introductory chapter by Job A. Verheijden of the project’s Steering Committee. A consensus is sought between the Dutch drink- ing water companies and the parties involved in non-point source pollution of the Meuse, in France, Belgium and The Netherlands, on the basis of a sufficient re- duction of the pollution of the river water with pesticides, in the interest of the drinking water production, serving 1 million people in the region (out of 5 million in total, dependent on Meuse drinking water). The Meuse, linking the countries just mentioned, is one of the most polluted rivers in Western Europe, and Rotter- dam happens to be at the end-station of this great river, where it flows into the North Sea. An end-of-pipe position, so to speak. Thus, problems are created for water companies dependent on the Meuse river water for their production of drinking water. For example, in 1993 an excessive discharge of the pesticide di- uron into the Meuse forced the Dutch water companies to suspend the intake of river water for 45 days, causing a crisis in water production. The City of Rotterdam and the two drinking water companies (Water Company Europoort and Water Storage Corporation Brabantse Biesbosch) were joined in the Meuse project by 19 Dutch Meuse municipalities which have been confronted with pollution of their harbours with contaminated sediments, and also by De Biesbosch National Park, which suffered ecological damage. The damage, which ultimately may be claimed from the polluters (point and non-point), is an estimated total of Dfl. 20 million annually for the water companies, Dfl. 30 million for the Meuse municipalities, and Dfl. 1.5 million an- nually for the De Biesbosch National Park. The major point source polluters, 19 industrial and municipal sources, were addressed in the first phase of the project; in the second phase, which started in 1994, the focus was on non-point source pollution of the Meuse. Its contents are described in this foreword. [xiv] The technical research carried out in the context of the Meuse project is reported by several authors. Jan Dogterom and others, of the Amsterdam based International Centre of Water Studies, give an account of the pre-study on non- point source water pollution by herbicides, particularly in agriculture. It sought to establish a quantification of these sources, in an endeavour to find out whether a correlation could be demonstrated between the use and emission of herbicides in a well-defined hydrological unit and the load in the surface water of that same unit (immission). The research is aimed at the identification of a limited number of users of herbicides, and to see whether a prognosis can be made of the emission of individual compounds, based on crop specific use of the herbicides, the total area per crop in use, and the run-off, wash-out and drift coefficients. The results of such a prognosis should match within acceptable limits with the immission data, the actual loads found in the hydrological unit. This 1993 pre-study was put into practice by the same Institute in a 1994 measuring campaign in Dutch Brabant, reported in an Appendix to the chapter, a summary of the Research Report by Peter Flohr and others of the Working Group of the Municipality of Rotterdam that coordinated the research. In Dutch Brabant two hydrological units had been selected, areas in the vicinity of two small rivers, the Bakelse Aa and the Achterste Stroom. The main agricultural substances in- 4 MILIEU-AANSPRAKELIJKHEIDSRECHT volved were atrazin and simazin; these substances could be traced to the produc- tion of specific crops (maize and asparagus, orchards, nurseries and leek respec- tively), with the help of satellite pictures of the areas of research. Also two sewage treatment plants were selected to monitor urban discharges. The main pollutant here is diuron. The legal aspects of non-point source water pollution are treated by the present author in his chapter, a comparative study of issues of liability in tort and multiple causation. The impressive number of non-point source polluters of an agricultural or municipal origin makes it necessary to take a fresh look at tradi- tional tort doctrine. Dutch case law offers interesting precedents for environmental liability of the type discussed here, especially in the field of alternative causation and multiple tortfeasors (the 1992 DES case, among others). The chapter is di- rected at an examination of the legal position of municipal waste treatment plants and groups of farmers discharging pesticides into the surface water, on a compara- tive basis. The outcome of the technical studies discussed above, reduced to sim- plified data for the sake of discussion, was used in the practical application of the results of the analysis of modern tort doctrine. In the context of Part II, International and EC Aspects of Pollution of the River Meuse, Hugo von Meijenfeldt of the Dutch Ministry of the Environment in his chapter discusses the international regulations regarding the Meuse pollution. Reference is made, inter alia, to the recent Declaration of Arles (1995), by the ministers of the environment of the riparian states of the Rivers Rhine and Meuse, and to the 1994 Treaty of the Meuse riparian states, concerning the protection of the River Meuse, which has led to the set up of the Meuse Commission (compara- ble to the Rhine Commission). Incidentally, that commission convened for the first time [xv] on a date that coincided with that of the Rotterdam Meuse Confer- ence, 12 May 1995. In the following chapter, Neil Hawke of De Montfort University Leicester, UK, gives an overview of the implementation and enforcement of EC agri- environmental measures, in the UK and Denmark in particular, relating to pollu- tion by nitrates, set-aside and soil quality. Since the EC policy in this sphere is not fully developed, the pre-existing approaches in Member States may play a crucial role in the EC regulation as it unfolds. An analysis of the existing and developing measures leads the author to the conclusion that there is a lack of coherence be- tween the various sets of environmental issues arising from agro-environmental measures. Another facet of EC legislation is the effect of such regulation in cases where Member States have not fulfilled their obligation of implementation. Mi- chel Pâques, of the University of Liège, discusses three issues which are quite topical at the moment: the direct effect of European directives, the so-called ‘con- formable interpretation’ and state liability for non-compliance of the obligation to implement directives, for damage caused as a result thereof. In recent case law of the European Court of Justice a new light is shed on the doctrine of direct effect of directives, which could have interesting consequences in the environmental field. The same holds for the conformable interpretation of EC legislation, which puts a national court under the obligation to interpret its national law in conformity with Community law, that is, in the light of the wording and the purpose of a directive (a concept which is in the author’s view in need of further development and could change administrative environmental law considerably in the near future). Finally, in this chapter the effects of the Francovich decision (1991) are discussed, particu- FOREWORD 5 larly the aspect of the protection of subjective rights as a prerequisite of their ap- plication in an environmental setting. In a number of panel contributions several issues are elaborated in more depth. Ulf-Henning Möker of the Ministry of Science and Research in Hamburg gives a detailed account of the EC directive on nitrates and its influence on the reduction of nitrogen compounds in surface water, polluted by agricultural sources. The overall conclusion is not optimistic; chances are small that the goal of the North Sea Ministers’ Conferences to reduce the burden of nutrients by 50 per cent will be reached in the near future. Gerrit Betlem, of the University of Utrecht, investigates the legal barriers to liability for cross-border non-point source pollution, with special attention for actions for an injunction before a Dutch civil court. Consumer law and intellectual property law provide interesting exam- ples here. Floor Brouwer, of the Agricultural Economics Research Institute in The Hague, presents an economist’s view on the use of pesticides in the European Un- ion, the economics of farming. The figures are impressive: The Netherlands and Belgium score first and second, respectively, in the use of plant protection prod- ucts per hectare, countries which are also high ranking in crop output, thereby illustrating the sensitive political dimensions of the topic. The last contribution, by Willy Baltussen of the same Institute, deals with the use of nitrogen in agriculture in the European Union and the consequential enormous losses to the environment. These losses have to be [xvi] reduced by at least 50 per cent; to reach that goal a set of policy instruments is advocated by the author. The final subject. Part III, Voluntary Agreements on Pollution Reduction in Europe and the USA, is opened by two chapters from Scandinavian political sci- entists, describing case studies involving the pollution of a bay area and a water- course, respectively, which were abated with the use of the instrument of volun- tary agreements. Katarina Eckerberg of Umea University, Sweden, discusses the Laholm Bay Project (South-West coast of Sweden), where non-point source pollu- tion is the most significant cause of eutrophication of the bay water, due to leach- ing from agriculture and forest lands. Contrary to point source pollution, the re- duction programme with regard to non-point sources proved not very successful. The author examines the reasons for that failure, analysing the policy implementa- tion in question, the type of instrument applied and the influence of the organiza- tional structure in local implementation. It is found that strict rules have been wa- tered down to mere recommendations, and that feed-back mechanisms in policy implementation are low, with public funding lacking. The second case study concerns the Halden Watercourse Project in the South-East of Norway, presented by Per Kristen Mydske, of the University of Oslo, as part of a comparative research programme of environmental reform in agriculture and forestry in the Nordic and Baltic countries. This river project lasted from 1991 to 1993. Its goal was to change the structures of practice and behaviour in agriculture. The strategy was a consensus model, presupposing agreement on the goals for environment and agriculture in this field. The subjects of the agreements were private groups, the farmers; their motivation was a crucial element, stimulated by economic market rewards and group information. The use of policy instruments, it is concluded, is conditioned by institutional arrangements, some of which in Norway date from the last century. The outcome, it is believed, may have implications for designing practical reforms in agriculture directed at environmental protection. The experience gathered in the USA in regard to voluntary agreements on 6 MILIEU-AANSPRAKELIJKHEIDSRECHT the reduction of non-point source pollution mainly from agricultural sources was the topic of two chapters. John Davidson, of the University of South Dakota, in his chapter deals with pollution caused by run-off from pasture, grasslands and culti- vated fields. The legislation is analysed, which in 1987 has led to the obligation to implement at state level a ‘non-point source management programme’. A range of legislative instruments is discussed, among which are Best Management Practices, economic incentives and state ‘Bad Actor’ laws. In the opinon of the author, the Dust Bowl experience of the 1930s, directed at obtaining voluntary cooperation of private land owners, supported by ‘cost-sharing’, may be instructive for our pre- sent problem. It is concluded that cost-sharing alone will not suffice; the land management practices advocated must be seen by the private land owner as also providing economic or personal advantage. Steven Dressing, of the US Environmental Protection Agency, Washing- ton, DC, gives an overview of the EPA programmes regarding non-point source pollution, which came into existence when point source pollution programmes proved [xvii] unsuccessful in providing clean rivers and lakes. A recent assess- ment of the water quality of a major part of US rivers, lakes and estuaries resulted in the conclusion that 32-44 per cent did not fully support designated uses. Non- point sources were reported to be the leading sources of river and lake use im- pairment, and a significant contributor to estuary problems. Agriculture contrib- utes to the problems in over two-thirds of the river miles, and about one half in the other areas. In the chapter a description is found of the major EPA legislation in this field, such as the Coastal Zone Management Act and the storm water permit programme, permits for concentrated animal feeding operations, and the permits for pesticides. These federal programmes, the author concludes, are a mixed bag of regulatory, incentive-based, and voluntary programmes; they incorporate a range of technical approaches that are primarily either technology-based or water quality-based. Although a proper balance between these programmes is still sought, in the author’s opinion they have resulted in some significant gains in the control over non-point sources. The Editor wishes to express his appreciation to the authors of these Pro- ceedings, for their contributions. At the Pre-conference for speakers, panel mem- bers and experts, held on 10 and 11 May 1995 in Rotterdam, there was an oppor- tunity to get acquainted with approaches to non-point source pollution issues in other disciplines in an open discussion, a preparation for the Conference on the folowing day. This source of information, an exchange of ideas, proved quite in- structive in the process of finalization of the papers, in their present form. A word of thanks is also directed at the panel members who participated in these discus- sions but were unable to contribute to the Proceedings: Maître Christian Huglo of the Paris Bar and the University of Paris; Professor Dr Jürgen Salzwedel, Univer- sity of Bonn and presently Gaedertz Vieregge Quack Kreile, Rechtsanwälte, Co- logne; Professor Dr Hubert Bocken, University of Ghent; Professor Dr Leigh Hancher, Erasmus University Rotterdam, and Ir Jan H.P. Baltissen, Netherlands Waterworks Association. I also want to thank the members of the editing team, of our Institute, who assisted in getting this book published: Babette de Spiegeleer, Mark Uilhoorn, Erik Berggren and Pieter van den Berg. In this context, Babette’s prominent con- tribution of making the copy ready for printing must be mentioned. Finally, we are indebted to several institutions that sponsored the Confer- ence and the publication of its Proceedings. In the first place, the Municipality of FOREWORD 7

Rotterdam (POM), the Ministry of Housing, Spatial Planning and the Environ- ment and the Vereniging Trustfonds Erasmus University Rotterdam. It is every Editor’s wish that the book that is accomplished will be read. Therefore, it will not come as a surprise to find that thought at the end of this In- troduction. In this case, however, an additional wish would be, that the thoughts and ideas from several fields of science which can be found in this volume, may bear fruit in the years to come, in the world-wide struggle with the complex matter of non-point source river water pollution.

Rotterdam, October 1995