6 Implementing the European Nitrates Directive
14.35 Water pollution caused by the spreading of animal manure, and the use of large quantities of inorganic nitrates, is a serious problem in many parts of the EU. The EU Drinking Waters Directive79 requires that nitrates present in drinking water should not exceed a concentration of 50mg/litre.
Although the Drinking Waters Directive has been in force for over thirty years, the effective implementation of its objectives remains problematic in many member states. Indeed, the United Kingdom has itself in the past been held by the European Court to be in contravention of its terms by supplying drinking water in some geographic areas with excess nitrate levels,80 and by failing to designate nitrate vulnerable zones to protect groundwater (as opposed to just surface waters).8114.36 The European Union’s Nitrates Directive82 is aimed at the problem of diffuse water pollution, and in particular at nitrate enrichment (or ‘eutrophication’) of surface and ground waters from which it is intended to abstract drinking water. Member states must designate those zones in which nitrate levels in surface and ground waters are in danger of exceeding the target of 50mg/litre, and also those areas in which natural waters are showing evidence of nitrate enrichment. Within the designated nitrate vulnerable zones, measures must be introduced to control the application of manure to the land according to specified criteria, and to limit the application of inorganic nitrate fertilisers in accordance with the parameters stated in the Directive. The Directive requires that Action Plans be drawn up for each NVZ in order to reduce and prevent water pollution by nitrates from agricultural sources.
14.37 Identifying the sources of diffuse water pollution is a difficult problem, as is the introduction of a strategy to regulate the application of nitrates and fertilisers in the interests of reducing the eutrophication of ground waters.
Clearly, enhanced nitrate levels in water supplies in a particular geographical area will not be attributable to the activities of individual agricultural producers – it will be the result of nitrate applications by the agricultural sector as a whole, and in some cases by non-agricultural sources. Similarly, no one application will be responsible in most cases for degraded water quality – eutrophication will take place gradually over a period of time. The water pollution offences set out in the Environmental Permitting Regulations 2010 (above) do not, consequently, provide an appropriate legal means for dealing with the problem.14.38 The Nitrates Directive has been implemented, therefore, by developing a ‘zoning’ strategy and identifying areas where eutrophication of water supplies infringes – or is in danger of infringing – the targets set in the Directive. To a certain extent, English Law already provided for some of the Directive’s requirements. Two zonal designations have been developed for this purpose:
(i)Nitrate Sensitive Areas. Initially, a sophisticated approach was developed based upon the designation of ‘Nitrate Sensitive Areas’. The Nitrate Sensitive Areas scheme was launched in 1990, and farmers were paid for voluntarily limiting the application of organic and inorganic fertilisers to the land in each geographical NSA area. The NSA scheme involved farmers making changes going well beyond ‘good agricultural practice’ in order to reduce nitrate leaching, and compensation under the scheme was paid under management agreements, in return for a management obligations regulating the farmers land management practices.
(ii)Nitrate Vulnerable Zones. The first set of Nitrate Vulnerable Zones (hereafter ‘NVZs’) were designated in 1996, after a lengthy consultation process within the agriculture industry and scientific studies of water quality in the proposed NVZ areas. Unlike Nitrate Sensitive Areas, which were based on the voluntary principle, NVZs are based on a regulatory model.
Farmers within NVZs are prohibited from carrying out certain potentially damaging or polluting practices by the terms of action programmes established for each zone,83 with penal sanctions applicable in cases of breach of the regulations. The mandatory land management practices stipulated in the NVZ regulations approximate to good agricultural practice, however, and should therefore have a limited impact on many farmers already adhering to DEFRA guidance on nitrate applications and land management.84 Because the management prescriptions approximate to good agricultural practice they are not, unlike those imposed in NSA land management agreements, compensated.14.39 The Nitrate Sensitive Areas Programme is now closed, and the legal controls on nitrate applications are dealt with exclusively through the designation of Nitrate Vulnerable Zones, as required by the EU Nitrates directive (below). Although the Nitrate Sensitive Areas scheme is closed to new entrants, the enabling provisions for the designation and management of land in these areas remain in force. These will therefore be discussed in outline below.
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