House of Commons - Environment, Food and Rural Affairs

Select Committee on Environment, Food and Rural Affairs Seventh Report

2 BACKGROUND

The purpose of the Nitrates Directive

4. The Nitrates Directive was adopted on 12 December 1991 with the objective of "reducing water pollution caused or induced by nitrates from agricultural sources and preventing further such pollution".[3]

5. There are health and environmental reasons for concern about the level of nitrates in water. Under the Drinking Water Directives of 1980 and 1998, drinking water is required to have a nitrate concentration of less than 50 mg/l.[4] Defra estimates that, between 2005 and 2010, the cost of treating nitrates in drinking water will be £288 million in capital expenditure and £6 million a year in operating costs.[5] In addition, nutrients such as nitrates can contribute to the eutrophication, or enrichment, of water.[6] Eutrophication can lead to the accelerated growth of plant life such as algae, which in turn can have a negative impact on biodiversity and affect the recreational value of the water. At the time of the Directive's introduction, the Council of Ministers judged it necessary "in order to protect human health and living resources and aquatic ecosystems and to safeguard other legitimate uses of water".[7]

6. Defra estimates that agriculture contributes more than 60% of the nitrates found in surface waters.[8] Other sources of nitrate pollution include sewage treatment works and urban drainage systems.

The terms of the Nitrates Directive

NITRATE VULNERABLE ZONES

7. The Nitrates Directive requires member states to designate as vulnerable zones areas of land that drain into waters "affected by pollution and waters which could be affected by pollution" if action is not taken.[9] Polluted waters are defined as:

surface freshwaters and ground waters with nitrate concentrations of greater than 50 mg/l, and
natural freshwater lakes, other freshwater bodies, estuaries, coastal waters and marine waters that are eutrophic.[10]

The 50 mg/l limit referred to in the Directive is perceived as one of its principal shortcomings. Several submissions expressed concern about its rationale. Natural England commented that the 50 mg/l limit had no ecological relevance.[11] The National Pig Association argued that "there is no scientific justification from an environmental or human/animal health perspective for the level to be set at 50 mg/l." It stated that this was "an arbitrary figure chosen by the EU Commission".[12] The Tenant Farmers Association described the inclusion of the 50 mg/l limit as one of the Directive's flaws.[13] None of the submissions expressed a view about whether the appropriate limit should be higher or lower than 50 mg/l. We are concerned that the 50 mg/l limit continues to be the basis of the Directive. We are also concerned that the Directive's implementation methodology does not reflect current European Union best practice. We recommend that Defra raise in the Council of Ministers the need to review the scientific evidence that underpins the Directive. If the evidence is found wanting, Defra should try to build an alliance with other member states to persuade the Commission to re-evaluate the Directive's basis.

ACTION PROGRAMMES

8. The Directive requires member states to establish voluntary codes of good agricultural practice[14] throughout their territory and to set up Action Programmes in the designated Nitrate Vulnerable Zones (NVZs). Member states can choose whether to establish a single Action Programme or different Action Programmes for different zones or parts of zones. Alternatively, member states can apply Action Programmes throughout their territory, in which case there is no obligation to identify specific vulnerable zones. Seven of the 15 member states at the time the Directive was agreed have adopted the whole-territory approach: Austria, Denmark, Finland, Germany, Luxemburg, the Netherlands and Ireland.[15] The others have chosen to designate discrete NVZs, with coverage ranging from 1.2% in Portugal to 44.1% in France.[16] In the UK, different Action Programmes operate in England, Northern Ireland, Scotland and Wales. This inquiry is concerned with the Action Programme in England, for which Defra has responsibility.

9. Action Programmes are required to take into account "available scientific and technical data, mainly with reference to respective nitrogen contributions originating from agricultural and other sources" and "environmental conditions in the relevant regions of the Member State concerned".[17]

10. The Directive states that Action Programmes must include the measures in the code of good agricultural practice and rules relating to:

Periods during which the application of certain types of fertiliser is prohibited.
The capacity of storage vessels for livestock manure, which "must exceed that required for storage throughout the longest period during which land application in the vulnerable zone is prohibited", unless it can be demonstrated that the excess will be disposed of in a manner that is not environmentally harmful.
Limitations on the application of fertilisers, consistent with good agricultural practice and taking into account: soil conditions, soil type and slope; climatic conditions, rainfall and irrigation; and land use and agricultural practices. There must be a balance between the nitrogen requirement of the crops and the nitrogen supply from the soil and from fertilisation.
The amount of livestock manure applied to the land each year, which must not exceed 210 kg of nitrogen per hectare (N/ha) during the first four-year Action Programme and 170 kg N/ha thereafter.[18]

The Directive also instructs member states to take any additional measures necessary to achieve its objective of reducing water pollution by nitrates from agricultural sources. It states: "In selecting these measures or actions, Member States shall take into account their effectiveness and their cost relative to other possible preventive measures."[19]

11. Although the Directive is specific about the kind of measures that must be included in the Action Programme, it is less prescriptive about the precise detail of their implementation. For example, it does not lay down particular dates for the closed periods for the application of fertiliser. It does not even specify the length of the closed periods. The 170 kg N/ha whole-farm limit on the spreading of livestock manure is the exception to this lack of specificity, and we return to this in paragraph 17. In oral evidence, Defra pointed out: "We have got wriggle room insofar as the Directive does allow Member States discretion in defining the very detail of some of the mandatory measures which the Directive requires us to put in place."[20]

The initial implementation of the Nitrates Directive in England

12. The Minister for the Environment and Countryside at the time the Directive was being negotiated, David Trippier, stated that he wanted it "to strike a fair balance between improving water quality and maintaining an efficient agriculture".[21] The initial approach to implementation certainly does not appear to have been over-zealous. Member states were required to designate vulnerable zones within two years of the Directive coming into force in 1991. However, it was not until March 1996 that regulations were made applying NVZ designation to 8% (approximately 600,000 hectares) of England. The focus of the designation was "the protection of drinking water sources"—something that was to cause problems later.[22] In December 1998, an Action Programme came into force.

THE TERMS OF THE 1998 ACTION PROGRAMME

13. The terms of the 1998 Action Programme are set out in a schedule to the Action Programme for Nitrate Vulnerable Zones (England and Wales) Regulations 1998 and the Guidelines for Farmers in NVZs—England.

14. Under the Directive, Action Programmes must be reviewed every four years. Defra told us that it had insufficient data to carry out a review of the 1998 Action Programme in 2002.[23] In oral evidence, the Minister appeared to be under the impression that Defra had "never ever" had a four-yearly review, but in fact Defra's first review of the Action Programme was undertaken in 2006.[24] No changes have been made as yet, and thus the 1998 Action Programme is still the current Action Programme.

EUROPEAN COMMISSION LEGAL ACTION

15. In December 2000, the European Court of Justice ruled that the UK had failed adequately to implement the Directive, because it had focused on deep ground waters used for the abstraction of drinking water, rather than considering all surface and ground waters.[25] As a result, in October 2002, Defra applied NVZ designation to a further 47% of England, bringing the total designation to 55%. The 1998 Action Programme was applied to the newly designated NVZs in December 2002.

16. Despite the increases, the European Commission indicated in 2003 that it was still dissatisfied with implementation of the Directive in the UK.[26] The Environment Agency noted that a Reasoned Opinion is currently outstanding against the Government "for failure to adequately implement the Nitrates Directive".[27] Defra told us: "The EU Commission has concerns about some aspects of our current Action Programme and designated areas and these have been formalised in ongoing legal proceedings."[28]

17. The NFU expressed concern about the rationale behind the European Commission proceedings.[29] However, in one respect, the reason for the Commission's dissatisfaction could not be clearer. It relates to the whole-farm limit for the spreading of livestock manure, which the Directive specifically sets at 170 kg N/ha. It is possible to apply for a derogation from this limit, but England has not done so. Despite this, it currently operates a 250 kg N/ha limit for grassland in NVZs. The NFU itself told us that the limit currently being applied "which the Commission would contend was illegal, is 250".[30]

18. The 170 kg N/ha limit could be regarded as another of the Directive's shortcomings in that there appears to be a lack of robust evidence to justify it. We asked the Minister whether there was a scientific basis for this figure.[31] Defra subsequently explained that its records "do not show how or why the Commission proposed this figure", although it commented that there is some indication that rainfall levels were a significant factor. It told us that the UK "saw the 170 limit as too tight", and "argued for a much more differentiated approach to limits but did not win the argument".[32] However, while the apparent lack of evidence supporting a 170 kg N/ha limit is a cause for concern, it does not alter the fact that this is the limit set down in law and that Defra is not applying it.

19. The Nitrates Directive is nearly 17 years old and is, as Defra put it, "universally unpopular […] because it is trying to impose very prescriptive rules onto something which should really be fairly flexible". [33] The UK is not alone in facing legal proceedings. The latest European Commission report on the implementation of the Directive, which stated the position as it was in November 2006, noted that infringement proceedings were also ongoing against Belgium, Germany, Spain, Ireland, Italy and Portugal.[34] Since then, the cases against Belgium, Germany and Ireland have been closed, but infringement proceedings have been opened against Luxembourg.[35]

20. The Directive may be unpopular, but it does not follow that it is incapable of implementation, as Defra itself admits:

The Minister told us that when it comes to implementing the Directive, "we are in a bad position […] I think we are at the back of the queue with Spain just in front of us".[37]

21. Moreover, despite its unpopularity, the Directive appears to be here to stay. Defra told us that it thought that the Directive was considered for repeal at the time the Water Framework Directive was being negotiated in 2000, but that a decision was made to keep it in place, leading Defra to conclude that "we may have to learn to live within the constraints of the Directive".[38]

22. We recognise that Defra, and its predecessor Departments, have tried to avoid unnecessarily prescriptive solutions to the implementation of what could be regarded as an out-dated and imperfect Directive, and that differences of interpretation have caused problems with the European Commission. However, it is clear that Defra has failed adequately to implement the Directive in so far as England is currently not applying the 170 kg N/ha limit to grassland.

Trends in nitrate levels in surface and ground waters

23. The Directive's purpose is to reduce water pollution from nitrates. An accurate picture of trends in nitrate levels in surface and ground waters thus seems a prerequisite for assessing whether the current Action Programme is achieving this objective. We recognise that, as Defra pointed out, this is a very complex area.[39] However, we were struck by the different conclusions that the NFU, the Environment Agency and Defra drew about trends in nitrate levels, particularly as they appeared to be using the same data.

24. The NFU gave the most positive account of the situation. It noted that Environment Agency sampling data showed that a significant number of important rivers in the Midlands, with large catchments in NVZs, showed downward trends of up to 20% over the 15 years from 1990 to 2005. It gave the examples of the Rivers Trent (20% reduction), Thames (10% reduction), and Warwickshire Avon (15% reduction). It explained that there is "a large block of downward trending rivers whose catchments extend from Derbyshire in the north to Surrey in the south, and from Worcestershire in the west to Cambridgeshire in the east." It commented that other major rivers that adjoin this block, such as the Rivers Severn and Great Ouse, have flat 15-year trends.[40]

25. The NFU did admit that elsewhere in the country "the position is much more mixed".[41]It found some rivers with upward trends, such as the River Wensum in Norfolk.[42] However, it noted that the Wensum is ground-water fed and that a long percolation time applies to ground water.[43] Promar International, in a research document for Dairy UK, argued that "there is significant evidence that increases in nitrate levels in recent years were largely caused by the ploughing out of permanent pasture during and following the Second World War, and the subsequent intensification of the industry".[44] Defra agrees that nitrates from agricultural land take decades to reach ground water abstraction points, as opposed to days to reach surface waters.[45]

26. The Environment Agency told us that "the evidence is that nitrate pollution has not changed significantly since the Directive came into force" and noted that "in some areas, particularly in the south and east of England, nitrate levels in groundwater have increased and are still rising."[46] It also reported that about 17% of its 7,300 river monitoring points exceeded the 50 mg/l drinking water limit at least once during the winter months.

27. The inverse of 17% of monitoring points exceeding the 50 mg/l limit is that the vast majority of monitoring points—83%—do not. It could be argued that this is an encouraging picture, but Defra said that the situation is "getting worse".[47] It, too, noted that "the trends on nitrogen are still going up in most groundwaters and some coastal waters".[48] However, given the time lag between changes in agricultural practice and nitrate levels in ground water, this is not unexpected.

28. Commenting on trends in nitrate levels in surface water, Defra noted that data for the years 1999 to 2004 show that 77% of sites have a declining trend, while 23% have a rising trend. However, it states that very few of these trends are statistically significant "because of the short time period used".[49] Defra's view that five years is too short a time for trends in surface water to be judged statistically significant is interesting because the current Action Programme has been in place for little more than five years in the majority of NVZs and yet Defra feels able to assert that the Action Programme "has not had a significant impact on nitrate pollution."[50] When we asked the Minister whether there had been sufficient time to assess the effectiveness of the current Action Programme, he replied candidly: "No, I do not think there has."[51]

29. The National Pig Association summed up concerns about the evidence base for the proposed changes to the Action Programme:

30. There seems to be general agreement that nitrate levels in some ground waters are on an upward trend, but this may be the result of agricultural practices dating back decades. Trends in ground waters should not be used to justify changes to an Action Programme that was introduced only in 1998 and extended in 2002. We regret that it is not possible to ascertain a clearer picture of trends in nitrate levels in surface waters and recommend that Defra and the Environment Agency supply more information on this matter in future reviews of the Action Programme.

31. We believe that, as Defra admitted, there is insufficient evidence to assess how effective the current Action Programme has been in reducing nitrate pollution, but, in the light of legal action on the part of the European Commission, we agree that changes need to be made in order to bring the UK into compliance with the Directive.

3 Council Directive 91/676/EEC Back

4 Council Directives 80/778/EEC, Annex 1, Table C, and 98/83/EC , Annex 1, Part B Back

5 Ev 12 Back

6 The Nitrates Directive defines eutrophication as follows: "the enrichment of water by nitrogen compounds, causing an accelerated growth of algae and higher forms of plant life to produce an undesirable disturbance to the balance of organisms present in the water and to the quality of the water concerned" (Council Directive 91/676/EEC, Article 2(i)). Back

7 Council Directive 91/676/EEC Back

8 Ev 12 Back

9 Council Directive 91/676/EEC, Article 3 (1) Back

10 Council Directive 91/676/EEC, Annex I Back

11 Ev 41 Back

12 Ev 49 Back

13 Ev 63 Back

14 The Directive specifies the types of provision that should be included in the code of good agricultural practice . They relate to where, when and how fertiliser can be applied and to the storage of manure . For further information, please see Annex II of Council Directive 91/676/EEC. Back