Agricultural pollution: new regulations published

Published 12/02/2021   |   Last Updated 12/02/2021   |   Reading Time minutes

The Welsh Government has introduced new regulations to control agricultural pollution, to come into force across all of Wales on 1 April 2021. The regulations have been welcomed by environmental organisations (Wildlife Trusts Wales) but farming unions are strongly opposed (NFU Cymru, FUW).

The regulations include transitional periods and are accompanied by financial assistance, guidance and a knowledge transfer programme.

The Senedd will debate the regulations on Wednesday 3 March, including an opposition motion to annul them. You can watch the debate live on Senedd TV.

The following article was originally published in June 2020 and is provided here as background.

The Welsh Government has published proposals for a controversial new approach to tackling agricultural pollution.

The draft regulations were published during the coronavirus lockdown, but the final regulations won’t be brought forward until after the “current pandemic period”.

Environmental groups support the proposals, however farming unions say they are disproportionate to the scale of the issue.

Tackling the problem of nitrate pollution is a long-standing issue in Wales. This article provides a brief overview of:

  • the impact of nitrate pollution;
  • current legislation;
  • the background to the proposed new regulations;
  • the draft regulations; and
  • stakeholder views.

Impact of nitrate pollution

Agricultural practices often use fertilisers, manure and slurry containing nitrates to add nitrogen to the soil. This is to improve plant development, and subsequently yield and crop quality. However, in excess, nitrates can lead to significant and persistent environmental damage.

The majority of nitrate pollution comes from diffuse agricultural sources (many single sources combined), through land run-off. Excess nitrates can enter surface water bodies, such as lakes and rivers, and cause eutrophication. Eutrophication occurs when nutrients enrich aquatic plants and algae, causing:

  • oxygen levels in the water to drop (deoxygenation);
  • water quality to decrease; and
  • aquatic animals to die.

Nitrate pollution can also affect drinking water sources if it enters groundwater.

According to a Welsh Government consultation, around 61% of agricultural pollution incidents per year between 2010 and 2015 stemmed from dairy farms.

Current legislation

Under the EU Nitrates Directive (91/676/EC), the UK must:

  • identify water bodies that are polluted or at risk of nitrate pollution;
  • designate these areas as Nitrate Vulnerable Zones (NVZs);
  • establish voluntary Codes of Good Agricultural Practice for farmers to follow;
  • establish a compulsory Action Programme for farmers to follow; and
  • monitor, report on, and revise (if necessary) NVZs every four years.

The Nitrates Directive is currently implemented in Wales through The Water Resources (Control of Pollution) (Silage, Slurry and Agriculture Fuel Oil) (Wales) Regulations 2010 and The Nitrate Pollution Prevention (Wales) Regulations 2013 (as amended).

Natural Resources Wales (NRW) enforces the regulations, including the Action Programme.

The Action Programme measures include:

  • controlling the dates (‘closed periods’) and conditions under which nitrogen fertiliser and organic materials are spread;
  • having sufficient facilities for storage of manures and slurries;
  • limiting nitrogen fertiliser applications to the crop requirement only;
  • limiting quantities of organic material applied per hectare per year;
  • limiting the total quantity of organic material plus excreta applied at farm level;
  • controlling the areas where nitrogen fertilisers (both organic and inorganic) can be applied;
  • controls on application methods; and
  • preparing plans and keeping adequate farm records.

Farmers can receive advice and financial support from Farming Connect and the Rural Development Programme to help them comply with the regulations.

Background to the proposed new regulations

NVZs were last reviewed between 2015 and 2016 by NRW. NRW recommended designating seven new areas, including for eutrophic waters, groundwaters and surface waters.

The Welsh Government consultation that followed the review ran from September to December 2016. Respondents were asked if they preferred:

  1. continuing the current approach to NVZ designation. This would result in more Action Programme measures and 8% land area in Wales being designated (increasing from 2.4% in 2012); or
  2. designating the whole of Wales as a NVZ.

The (now) Minister for Environment, Energy and Rural Affairs, Lesley Griffiths, responded to the consultation replies a year later, in December 2017. She said she was “minded to introduce a whole Wales approach”. This was based on consultation responses and the views of the Brexit Ministerial Roundtable and its Land Management Sub-group, and the Wales Land Management Forum Sub-group on Agricultural Pollution.

Almost a further year later, in November 2018, the Minister confirmed that she would be bringing in new regulations for the whole of Wales, to come into force in January 2020, which would include provisions for:

  • nutrient management planning;
  • sustainable fertiliser applications linked to the requirement of the crop;
  • protection of water from pollution related to when, where and how fertilisers are spread; and
  • manure storage standards.

She also said that farmers would be supported to achieve the required standards through Farming Connect and the Sustainable Production Grant (SPG). £6 million was made available through the grant, targeted at preventing agricultural pollution and managing nutrients.

To the surprise of many stakeholders, the Minister then issued a written statement in December 2019 saying that farming industry representatives had advocated an alternative approach:

A project exploring voluntary options, jointly funded by Natural Resources Wales and NFU Cymru, has been working to develop a draft water framework. This work has highlighted it may be possible to offer a more flexible approach based on earned autonomy to deliver the same outcomes compared to regulation. I want to explore further if there is a way we can provide farmers with the flexibility to achieve environmental outcomes in a way which is best suited to individual businesses.

She also noted that, following the outcome of this work and further consultation with the Wales Land Management Forum sub-group, she would be considering advice from her officials in January.

The draft regulations

The draft regulations - the Draft Water Resources (Control of Agricultural Pollution) (Wales) Regulations 2020 – were published on 8 April 2020. In her coronavirus statement on the same day, the Minister said she was “minded” to introduce the regulations “once the crisis comes to an end’.

The Explanatory Note to the draft regulations states:

Whilst the draft regulations would apply to all farms in Wales if introduced, the measures are targeted at agricultural activities which may cause pollution and the impact on individual farms would be highly dependent and proportionate on the type of activities being carried out. In general, intensive slurry-producing operations and poultry farms would see the greatest change, while less intensive farms, which do not produce slurry, would see little change. For all farm types, the impact on those already following good practice guidance would be considerably less than those which do not.

In the Senedd’s Climate Change, Environment and Rural Affairs (CCERA) Committee meeting on 19 May, both the Farmers Union of Wales (FUW) and NFU Cymru called for the Regulatory Impact Assessment (RIA) for the draft regulations to be made public.

In the Committee’s previous meeting, on 7 May, the Minister committed to writing to the Committee to set out when she would be able to “bring forward” the RIA. She also said:

… we will look to provide support for people who need that support to have a look at what they need to do within the regulations, but what we won't do is give funding to make sure that they come up to compliance.

Stakeholder views

In first announcing the new approach in November 2018, the Minister sought to address the concerns of the farming industry:

… regulations will replicate good practice measures which many farmers across Wales are already implementing routinely and for whom very little will change as a result of my statement.

Agricultural stakeholders have tended to disagree with this sentiment. A petition, first considered by the then Assembly’s Petitions Committee in January 2017, called for no further action on NVZs in Wales, stating it would “put enormous pressure on an already crippled dairy farming industry”. The petition attracted 430 signatures.

NFU Cymru argues that the complexity and cost of compliance outweigh the benefits to water quality, especially given uncertainty around EU transition. The union “expressed astonishment” at the decision to publish draft regulations during the coronavirus pandemic, saying that the timing was “ill-judged and inconsiderate”.

FUW responded to the publication of the draft regulations saying these are “the most draconian proposals, the most far-reaching proposals as regards agricultural pollution to have been put on the table for decades”.

FUW has also estimated that the number of farm holdings subject to the regulations would rise from 600 to more than 24,000.

However, environmental groups have long called for action.

A number of organisations, including RSPB Cymru, WWF Cymru and Wildlife Trusts Wales issued a joint response (PDF, 435KB) to the Minister's December 2017 statement, in which she said she was “minded to introduce a whole Wales approach”.

They welcomed the announcement describing it as “a watershed moment, and a key test for Welsh Government's new environmental legislation”. But they also expressed disappointment at the lack of progress made in this area.

The Sustainable Food Trust is also in favour of the proposals having argued previously for an all-Wales approach.

The Angling Trust gave the 2018 statement a “cautious welcome” raising concerns around enforcement in light of reductions to NRW’s budget and highlighting that the benefits of the new regulations may not be felt for several years, the transitional period to allow farmers time to adapt. Afonydd Cymru (the umbrella organisation for Rivers Trusts in Wales) wrote to the First Minister, Mark Drakeford, in January 2020 expressing its support for the proposals.

Organisations on both sides of the debate await the regulations coming before the Senedd with significant interest.

On 6 May the National Assembly for Wales became the Welsh Parliament, to be commonly known as Senedd. As a result, references in this article reflect the change of name, referring to the institution as the ‘Assembly’ in a historical context (prior to 6 May) and ‘Senedd’ thereafter.

Article by Elfyn Henderson and Holly Tipper, Senedd Research, Welsh Parliament

Senedd Research acknowledges the parliamentary fellowship provided to Holly Tipper by the Natural Environment Research Council which enabled this article to be completed.