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:
However the point that is made is that other
countries have managed to put in place measures which make them
compliant with the Directive, which achieve the Directive's objectives,
and have done so. We should be on our third review of the Action
Programme had we implemented in accordance with the timetable
set down in the Directive. We are only doing our first review
of the Action Programme.[36]
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 points83%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:
The more onerous requirements are being proposed
on the back of increases in nitrate levels due to farming practices
over 20 years ago. The systems that are now in place will lead
to further nitrate reduction when it has had sufficient time to
feed through the aquifers [
] The NVZ's designated in 2002
have been measured against an insufficient period of monitoring
data for Defra to be confident in making the claim that more onerous
measures are needed.[52]
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
15
European Commission, Report from the Commission to the Council
and the European Parliament on implementation of Council Directive
91/676/EEC, March 2007, p 8 Back
16
European Commission, Accompanying document to Report from the
Commission to the Council and the European Parliament on implementation
of Council Directive 91/676/EEC, March 2007, Annexe 1, p 22 .
The overall figure for the UK, taking into account Scotland, Wales,
and Northern Ireland, is 38.4%. Back
17
Council Directive 91/676/EEC, Article 5 (3) Back
18
Council Directive 91/676/EEC, Annex III Back
19
Council Directive 91/676/EEC, Article 5 (5) Back
20
Q 82 [Ms Nowak] Back
21
Ev 30 Back
22
Defra, The Protection of Waters Against Pollution from Agriculture:
Consultation on implementation of the Nitrates Directive in England,
August 2007, p 11 Back
23
Ev 12 Back
24
Q 56; Ev 26 Back
25
Defra, Consultation on implementation of the Nitrates Directive
in England, p 11 Back
26
Manual of Environmental Policy: The EU and Britain, June 2004,
p 4.14-6 Back
27
Ev 59 Back
28
Ev 13 Back
29
Ev 1 Back
30
Q 40 Back
31
Q 55 Back
32
Ev 26 Back
33
Q 89 Back
34
European Commission, Accompanying document to Report from the
Commission to the Council and the European Parliament, Annexe
1, p 23 Back
35
This is the position as detailed by the Commission in unprinted
correspondence with the Committee. At first, there appeared to
be differences between the list provided by the Commission and
the list provided by Defra in Q 88 (see Ev 27), but subsequent
correspondence with the Commission confirmed that the member states
currently facing infringement proceedings are: Spain, Italy, Luxembourg,
Portugal and the UK. This tallies with Defra's list. Back
36
Q 89 Back
37
Q 88 [Mr Woolas] Back
38
Q 89 Back
39
Q 71 Back
40
Ev 2 Back
41
Q 18 Back
42
Q 23 Back
43
Q 18 Back
44
Tim Harper (Promar International), Research into the impact of
changes to the England NVZ Action Plan: Identification of practical
issues for dairy farmers, para 2.2. In particular, Promar cites
the Broadbalk experiment, which involves the sowing and harvesting
of winter wheat. The experiment began in 1843 and has been used
to study Nitrogen cycling and leaching. Back
45
Defra, Nitrates in water-the current status in England,
supporting paper D1 to the consultation document, July 2007, para
2.1.2 Back
46
Ev 60 Back
47
Q 63 Back
48
Q 64 Back
49
Defra, supporting paper D1, para 2.2.1 Back
50
Defra, Consultation on implementation of the Nitrates Directive
in England, p 11 Back
51
Q 59 Back
52
Ev 47-48 Back