The Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018 (the Regulations’) were made on 5 February 2018 and came into force on 2 April 2018. The Regulations aim to prevent manure, fertiliser and soil from agricultural activity getting into inland freshwaters, coastal waters, springs, wells and boreholes. This type of pollution is known as ‘diffuse water pollution’.
The Regulations attempt to build on good farming practice to ensure that farmers manage their land to avoid water pollution and to improve farm efficiency. They require fertilisers to be spread to meet crop and soil needs and safeguard water quality by requiring farmers to judge when it is best to apply fertilisers, where to store manures and how to avoid pollution from soil erosion. As well as helping to reduce the overall levels of pollution in water courses, the Regulations should also result in many cost savings. These consist of reducing fertiliser and top soil losses to farmers, and reducing water purification costs to industries that depend on clean water, such as water companies and the shellfish industry.
The Regulations are the result of a consultation that the Department for Environment, Food and Rural Affairs (DEFRA) originally carried out in 2015 on rules to prevent diffuse water pollution from agriculture. In November 2017, DEFRA published their consultation response, setting out the new rules which are now implemented by the Regulations.
Key Requirements
Some of the key elements of the Regulations are as follows:
Application
The application of organic manure and manufactured fertiliser to agricultural land is prohibited where the soil is waterlogged, flooded, snow covered or frozen. Application must not exceed the needs of the soil and crop or give rise to a significant risk of agricultural diffuse pollution. Specific factors have been introduced to indicate where there is a significant risk of pollution. The application must also take into account the weather conditions and forecasts at the time of application. Distance restrictions are also imposed where organic manure is being applied. It must not be applied within 10 metres of inland freshwaters or coastal waters, or within 50 metres of a spring, well or borehole. Manufactured fertiliser must not be applied within two metres of inland freshwaters or coastal waters, springs, wells or boreholes.
Storage
Organic manure must not be stored within 10 metres of inland freshwaters or coastal waters or within 50 metres of a spring, well or borehole. Even where storage complies with these rules on distance, land managers must also take into account any factors that mean there would be a significant risk of pollution.
Managing livestock and soil
Livestock feeders must not be positioned on agricultural land within 10 metres of inland freshwaters or coastal waters or within 50 metres of a spring, well or borehole. Again, where the positioning of livestock feeders complies with these rules on distance, land managers must also take into account any factors which mean there would be a significant risk of pollution. Reasonable precautions should also be taken to prevent pollution resulting from land management and cultivation practices on agricultural land.
Criminal Offences and Civil Sanctions
It is a criminal offence to fail to comply with the Regulations, and they will be enforced by the Environment Agency through farm inspections. A person guilty of an offence under the Regulations will be liable to a fine, the level of which will depend on the seriousness of the offence. However, it will be a valid defence if that person can show that they took all reasonable steps and exercised all due diligence to avoid committing the offence.
The Environment Agency can also use civil sanctions to deal with non-compliance including restoration notices, compliance notices, stop notices, fixed or variable monetary penalties or accepting an enforcement undertaking.
How can Burges Salmon help?
The government has also published guidance entitled, ‘Rules for farmers and land managers to prevent water pollution’, that explains in more detail how and where the Regulations apply.
Burges Salmon regularly advises on all aspects of environmental law. For further information please contact Michael Barlow.