7 Nitrate Sensitive Areas
(a)Designation provisions
14.40 The Water Act 1989 introduced provisions to deal with diffuse water pollution, by providing for the zoning of areas especially vulnerable to pollution from the leaching of pesticides, nitrates and other nutrients, so that management agreements could be offered to control the application of nitrates etc.
in an attempt to protect and enhance water quality. These provisions are now contained in s 94 of the Water Resources Act 1991. This gives the Minister power to designate an area a ‘Nitrate Sensitive Area’ (‘NSA’) with a view to achieving the prevention or control of the entry of nitrates into controlled waters or watercourses as a result of agricultural activities. The provisions in the 1991 Act were novel in that an order under s 94 can require positive action by landowners to restrict pollution. Section 95 of the 1991 Act gives the Minister power to offer management agreements to landowners within an NSA, limiting nitrate application and land use.14.41 A pilot Nitrate Sensitive Areas Scheme was introduced under these enabling powers in 1990.85 Ten areas were designated ten areas as NSA’s, and made provision for two different classes of management agreement to be available to farmers and landowners with land in the areas concerned. ‘Basic Scheme agreements’ imposed restrictions on the amount of inorganic nitrogen which could be applied in a single operation to less than 120 kg of nitrogen per hectare, and also specified the amounts of inorganic nitrogen fertiliser which could be applied in a year to certain crops eg 25 kg per hectare in the case of wheat and barley. The obligations imposed by a ‘Premium Scheme agreement’ were more onerous. Farmers entering into this type of agreement had to choose one of four options for the conversion of their arable land to permanent grassland, with appropriate prescriptions as to its subsequent management and grazing.
Participation in the ‘pilot’ NSA scheme was purely voluntary. Farmers and landowners received grant payments of £55–£95 p.ha. for land entered into a Basic Scheme agreement, and £200–£380 p.ha. for land in a Premium Scheme agreement (depending on what proportion of a holding’s total arable is subject to the agreement). By April 1993, a total of 9,345 ha. of land had been entered into voluntary agreements under the NSA scheme.(b)The Nitrate Sensitive Areas Scheme
14.42 A major extension of the scheme saw the designation of 22 new NSAs under the Nitrate Sensitive Areas Regulations 1994.86 This was part of a package of measures introduced to implement the EC Agri-Environment regulation.87 One of the major criterions in the selection of sites for designation was the presence of water sources where nitrate concentrations exceeded 50 mg/litre, or where this was threatened by future changes in land use. The NSAs were each geographically discrete areas identified in Sch 1 to the 1994 order, and further delineated in maps kept by MAFF.88 The ten pilot NSAs designated in 1990 were brought within the terms of the 1994 Order from 1 June 1996, with minor boundary changes.89
(c)Management agreements
14.43 Participation in the NSA scheme was voluntary. Management agreements were available within the designated NSA areas, under which farmers received grant aid in return for subscribing to one of the land management schemes available under the scheme. Three forms of management agreement for regulating land use were available under the 1994 Order, each aimed at reducing nitrate leaching into water sources and with management prescriptions of varying stringency: Basic Scheme agreements, Premium Arable Scheme agreements, and Premium Grass Scheme agreements. Each offered management agreements for a five-year period,90 with differential values of payment per hectare apply depending on which of the three land management options was chosen reflecting the relative stringency of the restrictions placed upon land use by the different scheme agreements.91 Higher payment rates applied for the Premium Scheme over those applicable for Basic Scheme agreements. Certain basic requirements applied, whichever management scheme was chosen. No more than 250 kg of nitrogen in total could be applied per hectare in the form of organic nitrogen fertiliser, in any 12-month period. And no organic nitrogen fertiliser could be applied within 50 metres of a well, spring or borehole, or within 10 metres of a watercourse.92