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Water plans and buffer strips: reducing emissions into watercourses - International Law Office

International Law Office

Environment & Climate Change - Denmark

Water plans and buffer strips: reducing emissions into watercourses

October 29 2012

Introduction
Water plans
Buffer strips along lakes and watercourses
Lawsuits against the state
Comment


Introduction

Denmark has about 2.6 million hectares of cultivated agricultural land (inclusive of grazing land) distributed between 40,700 farms and agricultural businesses. The watercourses in Denmark stretch over 65,000 kilometres and the majority are adjacent to cultivated agricultural land.

According to recent Danish legislation - more specifically, the recently enacted water plans - emissions of nitrogen and phosphorus into watercourses and the sea must be reduced radically and the upkeep of specific watercourses must be reduced or discontinued. Moreover, as of September 1 2012, lakes and watercourses must have a 10-metre (m) wide buffer strip of non-cultivated land.

Some Danish farmers fear that such restrictions will further compound the financial crises to which they are already subject. A reduction in cultivated agricultural land, coupled with restrictions on the use of nitrogen and phosphorus fertilisers (which are more cost-effective than alternatives), may reduce farmers' earnings and in turn diminish their credit ratings and overall economic state.

The Agriculture and Food Council and The National Association for Sustainable Agriculture have initiated legal proceedings against the state regarding the water plans, as well as against the buffer strips.

Water plans

In 2000 the EU Water Framework Directive (2000/60/EC) entered into force. The primary purpose of the directive is that all bodies of water must be in a "good state" by 2015, but member states must determine their own guidelines in this respect.

Denmark has implemented the directive through the Act on Environmental Objectives. Under this act, the Nature Agency has divided Denmark into 23 different water areas, each with its own water plan. These plans constitute Denmark's way of achieving the objectives laid down in the directive.

Each water plan sets objectives for the conditions of the aquatic environment in that particular area. The plans are followed by focus programmes, which in turn describe how each plan's objectives are to be met.

The main objective of the plans is to ensure cleaner water in lakes, inlets and watercourses in Denmark. One way of achieving cleaner water is to reduce nitrogen emissions from agriculture - the plans aim to reduce such emissions by approximately 9,000 tons by 2015, and by at least an additional 10,000 tons by a later date. Furthermore, phosphorus emissions are to be reduced by approximately 200 tons.

The water plans also call for the reduced or discontinued upkeep of specific watercourses. This may result in the watercourses breaching their embankments, to the detriment of the adjacent cultivated agricultural land.

Buffer strips along lakes and watercourses

In addition to the water plans, Denmark has recently adopted the Act on Buffer Strips in order to achieve the objective laid down in the directive. The act introduces a principal rule of a 10m-wide buffer strip of non-cultivated land along the perimeter of all lakes larger than 100 square metres and watercourses, in order to reduce emissions of nitrogen, phosphorus and pesticides into the water. The buffer strips represent approximately 50,000 hectares of the total 2.6 million hectares of cultivated agricultural land, including grazing land.

Denmark is the only member state that has mandatory buffer strips; in some other member states, buffer strips are voluntary and farmers are afforded compensation.

Danish farmers may request compensation for the zones that they are no longer allowed to cultivate due to the buffer strips. The amout of compensation has not yet been determined, but is expected to be Dkr1,200 per hectare for areas registered in 2011 as permanent grazing land and Dkr2,100 per hectare for areas registered as cultivated agricultural land.

The general public has legal access to the buffer strips in accordance with the Act on the Protection of Nature, which allows the public to use privately owned non-cultivated land.

Failure to comply with the Act on Buffer Strips will incur a fine.

Lawsuits against the state

Two organisations have - as representatives for Danish farmers - initiated legal proceedings against the state:

  • The National Association for Sustainable Agriculture has taken legal action against the Ministry of the Environment and the Nature Agency, with regard to the water plans as well as the buffer strips.
  • The Agriculture and Food Council has taken legal action against the Ministry of the Environment and the Nature Agency on behalf of four farmers in relation to the water plans. Moreover, on October 12 2012 this organisation initiated legal proceedings against the Ministry of Food, Agriculture and Fisheries and the Ministry of the Environment regarding the buffer strips.

The Agriculture and Food Council has also recommended that farmers initiate legal action themselves, using so-called 'minimal writs' - that is, form writs that have been drawn up in advance by the organisation's attorney in order to make the legal process as cheap as possible for farmers. These independent lawsuits are expected to await the ruling in the primary lawsuit, but by initiating these lawsuits the farmers will not risk limitation if the primary lawsuit is lost. If the organisation is victorious, initiating the independent lawsuits will also protect the farmers' legal positions, as the outcome of the primary lawsuit for farmers other than the four plaintiffs in the primary lawsuit is uncertain.

The organisations claim, among other things, that the water plans should be repealed as they allegedly conflict with the directive. Furthermore they argue that the directive has been implemented in Danish law without the necessary public involvement and without the required mandate to government officials, due to over-implementation of the directive.

With regard to the buffer strips, it has been argued that their establishment is disproportionate and will not have the desired effect on emissions of nitrogen or phosphorus. The Agriculture and Food Council further argues that the Act on Buffer Strips constitutes expropriation and therefore requires that compensation corresponding to the true economic loss be paid to the farmers, not just a fixed compensation.

Comment

The outcome of these lawsuits will potentially be of fundamental importance to the agricultural sector, and the cases are likely to be closely monitored in the years to come.

Generally speaking, the state wins nine out of 10 lawsuits against it and farmers are therefore fighting an uphill battle. Furthermore, the agricultural sector has a poor record when suing the state. However, the Agriculture and Food Council's lawsuits are well prepared and well argued, so there is a chance that they will succeed.

For further information on this topic please contact Søren Stenderup Jensen or Sebina Harder by telephone (+45 33 12 11 33), fax (+45 33 12 00 14) or email (ssj@plesner.com or sha@plesner.com).


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