The proposals are intended to correct a long-standing failure by the UK to apply EIA to agricultural intensification. The failure dates back to 1988, when the original EU Directive on environmental assessment of projects took effect.
Following a threat of legal action from the European Commission and an initial consultation in May (ENDS Report 316, pp 45-46 ), DEFRA is aiming to have regulations in place in England by the end of the year. But similar proposals are still awaited from the three devolved administrations.
The May consultation dealt only with the principles of EIA for agricultural land use changes. Some details of the new regime, set out in draft regulations in the new paper, are likely to come as a shock to many farmers.
Screening decision: No projects of a type covered by the regime will be able to proceed before they have been notified to the Secretary of State and "screening decisions" taken as to whether they should be subject to EIA. Such projects include many ordinary operations such as ploughing, drainage or infilling of ponds.
Consent: Projects subject to EIA will be able to proceed only with a consent from the Secretary of State.
Time limits: Consents will lapse automatically if a project has not been commenced within a year or completed within three years.
Offences: Carrying out projects without consent or breaching the conditions of a consent will be criminal offences, as will providing false or misleading information or withholding material information in the EIA process.
Stop notices: The Secretary of State will be able to serve notices ordering the cessation of work where any such offence has been committed and she believes that "the potential harm to the environment...is such the work should cease with immediate effect."
Reinstatement: Likewise, where any such offence has been committed, the Secretary of State may serve a notice ordering the land to be restored to its original condition. Where the baseline condition "cannot be determined with reasonable accuracy" or full reinstatement is unachievable, reinstatement works considered "reasonable in the circumstances" may be ordered instead. Farmers will be able to appeal against such notices.
Non-compliance with reinstatement or stop notices will be a criminal offence.
Powers of entry: Authorised persons will be able to enter land to check whether any offences have been committed. And, where a reinstatement notice has not been complied with in the time allowed, they may also enter the land to carry out the work themselves, with the costs being recoverable from the farmer concerned.
Review: Both decisions that a project need not be subject to EIA and post-EIA consents for projects will have to be reviewed by the Secretary of State if the land concerned is designated as a so-called European site under the 1994 EU Directive on habitats. Where the project is likely, in that Directive's parlance, to adversely affect the site's integrity, then the consent must be revoked or modified to ensure that the damage does not occur, and a reinstatement notice may be served where the project has commenced.
In these cases, farmers will be entitled to compensation for abortive expenditure on a project, as well as for reinstatement costs.
All this may appear draconian to farmers unaccustomed to planning controls. However, DEFRA also endeavours to reassure them that the regulations will be applied as gently as possible.
For instance, it undertakes to "seek wherever possible" to apply the procedures "in co-operation with the farmers and others who may be involved", and to "seek to agree...a way forward which takes account of business needs as well as environmental factors." Indeed, DEFRA "hopes" that there will be "very few" cases where consent has to be refused.
In similar vein, DEFRA promises to "consider sympathetically" difficulties facing farmers in preparing environmental statements, drawing, for instance, on information from statutory agencies to supplement that readily available to farmers.
The paper also contains draft guidelines to be used by DEFRA in deciding whether a project is likely to have "significant" environmental effects and hence should be subject to EIA. These have three tiers:
Five categories of uncultivated land or semi-natural areas are listed - unimproved and improved grassland, scrubland, heath and moorland, and wetlands. Grassland will generally not be subject to EIA if it has been improved within the past ten years, but there may be exceptions - for instance, if it is on a historic site, if an important flora has developed, or if a Biodiversity Action Plan (BAP) species is present.
Ten types of project likely to qualify as involving operations for "intensive agricultural purposes" are listed for illustrative purposes. A more exhaustive listing was rejected. The projects range from cultivation, drainage and land reclamation to spreading of soil, fertiliser or lime, and introduction of livestock or vegetation clearance for the first time in ten years.
Eight criteria to be used in deciding whether environmental effects are likely to be significant complete the picture. DEFRA has rejected the idea of setting quantitative thresholds, in part to guard against losses of small areas of valuable habitat.
Among the criteria are whether the land is a BAP priority habitat or contains wildlife covered by a BAP species action plan, whether it has any protective designations or is recognised in development plans as being of particular importance for landscape or recreation, and potential effects on pollution, soil erosion or flood protection. However, excessive water abstraction associated with some agricultural intensification does not appear among the criteria.
Two further features of the regime are noteworthy. First, provision has been made for public participation, with six weeks allowed for public comments on consent applications following the publication of a notice in local newspapers.
Second, DEFRA has shrugged off concerns about possible conflicts of interest by proposing that it should be the competent authority. The first consultation paper put forward other options, such as one of the environment agencies.