8 Nitrate Vulnerable Zones
14.44 When the European Community adopted the Nitrate Directive93 in 1991 the pilot NSA scheme had already been established in the UK. Following the ‘zoning’ approach taken in the legislation on NSAs (above), the detailed requirements of the Nitrates Directive have been implemented in the UK by the designation of ‘Nitrate Vulnerable Zones’ (NVZs).
These were initially designated by the Protection of Water Against Agricultural Nitrate Pollution (England and Wales) Regulations 1996.94 The catchment areas of the Nitrate Sensitive Areas designated under the earlier voluntary scheme (above) all fell within the areas subsequently designated as Nitrate Vulnerable Zones under the Nitrates Directive. The NVZ programme is now the primary mechanism for implementing the Directive, and has subsequently been greatly extended in scope and application in England and Wales. The regulation of land use in NVZs is now to be found in the Nitrate Pollution Prevention Regulations 2015.95(a)Designation of NVZs
14.45 The history of the NVZ programme in England and Wales is one of the initial designation of 68 areas in 1996, and then the gradual expansion of the programme in stages (principally in 2007 and 2013) as it became apparent that it was having a limited impact on the concentrations of nitrates above the maximum 50mg/litre concentration required in EU law. The areas initially chosen as NVZ’s were all designated because they contained either freshwaters, ground waters or lakes/estuaries etc. at risk of breaching European Union drinking water quality requirements.96 In the case of surface freshwaters, and particularly those intended for the abstraction of drinking water, this was because if action was not taken the concentration of nitrates will exceed the limits set in EU Drinking Waters Directive. In the case of ground waters, they were designated because more than 50mg/litre of nitrogen was present or may become present if action were not taken to control nitrate leaching.
And in the case of freshwater lakes and other marine waters designation was because the waters have been found to be eutrophic, or may become so in the near future ie the waters have become enriched by nitrogen compounds so as to cause accelerated growth of algae and other forms of plant life, producing a disturbance to the balance of the organisms present in the water and its general quality.14.46 Sixty-eight NVZs were initially designated in 1996. The designation of NVZs in England and Wales has been challenged twice before the European Court of Justice:
(i)In R v Secretary of Sate for the Environment and Minister of Agriculture Fisheries and Food ex parte Standley97 the initial NVZ designations were challenged by two farmers on the basis that no consideration had been given to whether nitrate levels were partly attributable to non – agricultural sources. Applying mandatory land use controls to the agriculture industry alone was, it was argued, discriminatory and disproportionate. This was rejected by the European Court, who held that the regulations did not represent a disproportionate or intolerable interference with the right to property. The court reaffirmed that the right to property is not absolute, but (viewed in relation to its social function) could be restricted where there was an objective of general community interest to be pursued. Agriculture had made a sufficient contribution to excess nitrate levels, and farmers were not therefore being required to bear the burden of measures to prevent pollution to which they had not contributed. The Directive required member states to have regard to the need to target action programmes in NVZs to take account of the sources of pollution, and they were required not to impose upon farmer’s obligations that were unnecessary. The NVZ measures were therefore interpreted as according with the ‘polluter pays’ principle of EC environmental law, and the challenge to their legality failed.
(ii)The scope of the initial NVZ designations made by the UK was also challenged before the European Court of Justice by the European Commission.
The European Court ruled in 2000 that instead of focussing solely on drinking water quality as a determinant for selecting sites, the UK should have designated all surface and groundwater where the 50mg/litre nitrate limit was breached (or in danger of being breached).98 The UK’s implementation programme was therefore held to be in breach of the Directive’s requirements, which were not focussed exclusively on drinking water quality.14.47 As a consequence of the second of these rulings from the European Court ((ii) above), the NVZ programme was considerably widened in 2002 to cover approximately 55% of England. Despite this extension of the programme, a scientific review by DEFRA subsequently found that the provisions had made a minimal impact on nitrate levels in surface and ground waters. DEFRA therefore proposed a further major extension of the NVZs in 2007 to cover over 60% of England.99 The areas designed as NVZs were further revised in 2013 to include areas identified as still containing nitrate concentrations exceeding the EU guideline measure of nitrate concentration in surface waters.100 Detailed guidance for farmers and land managers on compliance with the management rules in NVZs is published by DEFRA.101
14.48 The Nitrate Pollution Prevention Regulations 2015 require the Environment Agency to monitor nitrate concentrations in freshwaters once every four years, by taking samples monthly for a 12-month period at sampling stations representative of both surface waters in England and Wales, and ground water aquifers.102 The eutrophic state of fresh surface waters and estuary waters must also be monitored on a similar basis. The list of Nitrate Vulnerable Zones must be reviewed by DEFRA by the end of 2016, and at least once every four years thereafter,103 and can be added to or revised as scientific data collected by the sampling process dictates, to ensure compliance with European targets set in the Directive.
(b)Management prescriptions in NVZs
14.49 The 2015 Regulations ensure that flexibility towards land management is retained, while imposing mandatory land management rules to reduce the leaching of nitrates from fertilisers and manure into watercourses and surface waters. Farmers within an NVZ are required to observe basic mandatory rules to control nitrate leaching.104 These requirements are considered to be part of good agricultural practice and will not be compensated. They are also part of cross compliance within the basic payment scheme, and farmers receiving the basic payment under the CAP farm support scheme must comply with these requirements as a condition of payment.105 The 2015 Regulations make provision setting out periods when land application of certain types of fertiliser is prohibited, prescribe the minimum capacity of storage vessels for livestock manure, and include provisions limiting the land application of fertilisers, consistent with good agricultural practice and taking account of soil conditions and type, climatic conditions and crop rotation systems. The limitations placed upon fertiliser applications are based upon keeping a balance between: (i) the foreseeable nitrogen requirements of the crops sown by farmers; and (ii) the nitrogen supply to those crops from the soil and from manure applications, chemical/nitrogen compounds and the residual amount of nitrogen present in the soil.
14.50 The objective when setting fertiliser limitations is to base the calculation on a presumed balance of fertiliser uses allowing for manurial application, residual nitrogen from previous crops, and nitrogen compounds applied from chemical and other fertilisers. Certain base line requirements are stipulated by the 2015 Regulations. In particular, they include limitations per hectare on the amount of livestock manure applied to the land each year for every farm within an NVZ.
14.51 The 2015 Regulations specify that livestock manure containing no more than 170kg/ha of nitrogen must be applied to land in an NVZ in any 12-month period, and no more than 250kg ha of organic manure (for example in the form of green compost) can be applied – unless a derogation has been applied for, accompanied by a fertilisation plan of the holding in which case no more than 250kg/ha of manure must be applied (for example to grassland).106 The programme also requires farmers to avoid making nitrate applications to sandy and shallow soils during annual ‘closed periods’ ie between 1 September and 1 November for grassland and between 1 August and 1 November for arable.
They must also avoid making applications in vulnerable locations and in conditions that are likely to lead to nitrate leaching – for example where soil is waterlogged, frozen hard, snow covered or flooded. The nitrogen uptake of crops sown must be calculated and recorded in accordance with detailed requirement set out in the 2015 Regulations.10714.52 Unlike their forerunner – the Nitrate Sensitive Areas programme (above) – the land use requirements laid down in the NVZ Regulations are mandatory on landowners in Nitrate Vulnerable Zones. The use of derogations is intended to give flexibility, rather than relying on prescriptive regulation, and to ensure that regulation is tailored to the agricultural conditions obtaining in each individual NVZ, and can change and adapt as need arises. This is a novel approach to the legal regulation of land use. Nevertheless, the NVZ programme represents a substantial qualification of private property rights. A Farm Waste Grant scheme was established to assist farmers in the areas affected to comply with the pollution prevention measures required by the NVZ regulations.108