UK faces EC challengeover nitrate controls

Regulations establishing an action programme to curb nitrate leaching from farms were laid before Parliament in May. They should enable the UK to escape legal action by the European Commission for non-compliance with the 1991 Directive on nitrate from agriculture - but the Government is facing the trickier challenge of persuading the Commission that it should not be taken to the European Court of Justice for introducing controls in only some catchments with high nitrate levels.

The Directive obliged Member States to designate as nitrate vulnerable zones (NVZs) catchments within which surface waters and groundwaters are affected by nitrate "pollution". This was to be done by the end of 1993. By the end of 1995, initial four-year action programmes to reduce nitrate leaching from farms within NVZs should have followed.

Last year, a Commission report concluded that general progress in implementing the Directive was "abysmal" (ENDS Report 273, p 41 ). Infringement proceedings are currently under way against 13 of the 15 Member States.

The UK is one of the countries which has been well behind in implementation. Its 69 NVZs - 68 in England and Wales and one in Scotland - were not designated until early 1996, more than two years late (ENDS Report 254, p 45 ).

In April, the Commission announced new stages in the infringement proceedings against five Member States, including the UK. In the case of four, this took the form of a "reasoned opinion" - effectively the last chance for a Member State to satisfy the Commission that it is in compliance with the law before it is taken to the European Court of Justice.

The reasoned opinion against the UK, though yet to be received in Whitehall, will set out two areas of alleged non-compliance. One is the UK's failure to introduce action programmes to curb nitrate leaching.

The UK has been dragging its feet over this issue. The previous Government consulted on its programme as far back as November 1995. All then went quiet until last January, when a second consultation was conducted (ENDS Report 276, pp 45-46 ).

Regulations to introduce the programme were finally laid before Parliament in May. Their content - comprising restrictions on both the timing and rate of application of inorganic nitrogen fertilisers and organic manures - is essentially as proposed in the second consultation paper. The measures will become mandatory from 19 December. The Environment Agency will be responsible for policing the rules.

The regulations, though belated, may be enough to avert legal action by the Commission. But the Government is likely to find it more difficult to satisfy the Commission over the second issue raised by the reasoned opinion - that the UK restricted its NVZ designations solely to waters from which nitrate-contaminated drinking water is abstracted, rather than designating all catchments affected by nitrate "pollution".

The Directive's rules for NVZ designation are not crystal clear. Member States are required to designate all areas of land draining into waters "identified" as affected by nitrate "pollution" or which could be so affected if action programmes are not implemented within them.

Annex I of the Directive provides that waters "shall be identified making use, inter alia," of certain criteria. Key among these is "whether surface freshwaters, in particular those used or intended for the abstraction of drinking water, contain or could contain," if action programmes are not implemented, more than 50mg/l of nitrate as specified in the 1975 Directive on surface water used for drinking water. A second criterion is whether groundwaters contain, or could contain, more than 50mg/l of nitrate.

On the face of it, these criteria may be thought to require designation of all waters containing more than 50mg/l of nitrate or likely to do so without measures to curb nitrate leaching, and not just those used as drinking water sources.

However, it is also the case that only areas of land draining to waters affected, or which could be affected, by nitrate "pollution" need be designated as NVZs. The Directive defines "pollution" as discharges from agriculture which result in "hazards to human health, harm to living resources and to aquatic ecosystems, damage to amenities or interference with other legitimate uses of water."

It could therefore be argued that only where, in particular, water is abstracted for drinking is "pollution" occurring. No doubt the Government has argued this in its exchanges with the Commission at earlier stages of the infringement proceedings, but it has evidently failed to persuade Brussels of its case.

There certainly appears to have been doubt within Whitehall in the early 1990s about the extent of the NVZ designations which the Directive would require. Both before the Directive was adopted and as late as 1992, officials suggested that the designated area might be as large as 1.9 million hectares. But the 69 NVZs cover only some 0.6 million hectares.

A separate programme has operated in Britain since 1990 to reduce nitrate leaching within Nitrate Sensitive Areas (NSAs), now totalling 32. There, farmers receive compensation if they engage voluntarily in agricultural practices intended to protect groundwaters abstracted for public supply.

Announcing publication of the latest annual report on the effects of the scheme, the Ministry of Agriculture said on 28 April that it is "successfully reducing nitrate losses from agricultural land." However, that claim must be qualified.

Firstly, only about 70% of the eligible land within the 32 NSAs has been entered into the scheme. And second, only 5,811 hectares (23%) of the 24,917 hectares entered have been converted to extensive grassland - an option with little or no fertiliser permitted, and which has proved by far the most effective in curbing nitrate losses. Sub-surface monitoring in the winter of 1996/97 showed that nitrogen losses from fields in this option were often less than a very low 1kg/ha.

Overall, however, nitrate concentrations remained above the 50mg/l standard for drinking water at 58% of the monitoring sites in the winter of 1996/97, slightly below the previous year's level.

The contracts for some farmers who entered the scheme early have now ended, and monitoring at six sites where extensive grassland has been converted back to arable has shown a rapid increase in nitrate leaching. Nitrogen losses of 6-83kg/ha were recorded at the six sites, and a further increase was expected last winter as organic residues from the grass were broken down.

These results are predictable, and show that the benefits of the NSA scheme are soon lost if farmers decide that the available compensation is unattractively low. The scheme is currently under review, and the outcome may well be influenced by the UK's exchanges with the European Commission over the designation of NVZs.

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