IRELAND

CONSULTATION PAPER

Draft European Communities

(Good Agricultural Practice for Protection of Waters) Regulations 2010

11 June 2010

Contents

Chapter 1 – General Page

Introduction1

Invitation to Comment2

Freedom of Information2

Chapter 2 – Background

Nitrates Directive 3

Implementation to date3

Chapter 3 – Summary of Draft Amendments

Outline of the Proposed Amendments5

Appendices

Appendix 1 - Draft European Communities (Good Agricultural Practice for Protection of Waters) Regulations 2010

Appendix 2 -EPA Progress Report on the Implementation of European Communities (Good Agricultural Practice for Protection of Waters Regulations 2009 (S.I. No. 101 of 2009))

Chapter 1 – General

Introduction

The draft European Communities (Good Agricultural Practice for Protection of Waters) Regulations, 2010 (commonly known as the ‘Nitrates Regulations’) have been developed for the purpose of giving statutory effect to Ireland’s 2nd Nitrates Action Programme (NAP).

Revisions proposed in Ireland’s 2nd Action Programme are incorporated in the text of the proposed new consolidated Regulations rather than by piecemeal amendment of the existing Regulations which gave effect to Ireland’s 1st Action Programme.

The purpose of this consultation paper is to provide an opportunity for interested persons to comment on the proposed revisions before they are finalised. It is proposed that, following receipt and consideration of comments, the Regulations will be made by end August 2010 and will come into effect on 1September 2010. The Regulations will apply to all farm holdings.

This consultation paper continues the process of public consultation, which has taken place as the need arose since December 2001 in relation to the implementation of the EU Nitrates Directive. A copy of the paper has been sent directly to all persons who engaged in earlier stages of consultation. This document comprises –

  • A consultation paper, which includes a summary of the draft revisions, and
  • Appendices, comprising the full text of the draft Regulations and a copy of a Progress Report on the Implementation of Ireland’s 1st Action Programme conducted by the EPA.

The EPA Progress Report indicates that a number of studies are being undertaken to determine the efficacy of existing measures to achieve the objectives of the Nitrates Regulations. It goes on to state that until such studies are concluded and having regard to the findings of the report, the EPA is not recommending any additional measures to prevent and reduce water pollution from agricultural sources. Having regard to this recommendation, minimal revisions are proposed to be made to the existing Regulations.

The draft Regulations have been prepared jointly by the Department of the Environment, Heritage and Local Government and the Department of Agriculture, Fisheries and Food.

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Invitation to comment

Interested parties are invited to comment on the proposed revisions to the European Communities (Good Agricultural Practice for Protection of Waters) Regulations. A full copy of the Regulations is at Appendix 1 to this consultation paper. For your convenience, the principal proposed revisions are explained in Chapter 3 of this consultation paper. Comments received by 23 July2010 will be taken into consideration and, where appropriate, the draft Regulations will be revised to reflect comments received. Please address comments to one or both of the following persons -.

Ms. Tracey O’Connor
Water Quality Section
Department of the Environment,
Heritage and Local Government
Newtown Road
Wexford
Tel 053-9117487
Email tracey.o’ / Mr. Richard Gregg
Environment Section
Department of Agriculture, Fisheries and Food
JohnstownCastle
Wexford
Tel 053-9163416
Fax 053-9143965
Email

Further copies of the consultation paper are available in electronic and hard- copy format on request to the persons named above. The paper can also be accessed through the websites and

Freedom of Information

Please note that, in the event of a request being made by any person under the Freedom of Information Acts 1997 and 2003 it may be necessary for a Department to disclose any or all comments received. A Department may refuse to disclose information only in exceptional circumstances. The comments received in response to this consultation paper might also be published by the Department of the Environment, Heritage and Local Government or by the Department of Agriculture, Fisheries and Food.

Strategic Environmental Assessment (SEA)

The proposed modifications to the NAP have been screened in accordance with the provisions of the SEA Directive and it has been determined that they are not likely to have significant environmental effects.

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Chapter 2 – Background

Nitrates Directive

The Nitrates Directive (91/676/EEC) – Council Directive of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources – was adopted in 1991 and has the objective of reducing water pollution caused by nitrates from agricultural sources and preventing further such pollution, with the primary emphasis on the management of livestock manures and other fertilisers.

The Nitrates Directive generally requires Member States to –

  • Monitor waters and identify waters which are polluted or are liable to pollution by nitrates from agriculture
  • Identify the area or areas to which an action programme should be applied to protect water from pollution from nitrates from agricultural sources
  • Develop and implement action programmes to reduce and prevent such pollution in the identified area or areas: action programmes are to be implemented and updated on a four-year cycle
  • Monitor the effectiveness of the action programmes, and
  • Report to the EU Commission on progress

Implementation to date

Measures taken to date for the implementation of the Directive in Ireland have included –

  • Extensive monitoring of waters by local authorities and the Environmental Protection Agency
  • The development and distribution of a Code of Good Agricultural Practice to Protect Water from Pollution by Nitrates (July 1996)
  • Significant investment by farmers and the Department of Agriculture, Fisheries, and Food, supported by EU Funds, in facilities for farm waste management under the Farm Waste Management Scheme
  • A wide range of actions to support good agricultural practice including farm inspections, REPS and advisory schemes
  • The identification in 2003 of the whole national territory as the area in relation to which an action programme would apply
  • Establishment of Ireland’s 1st Nitrates Action Programme in 2005 which was given statutory effect in the European Communities (Good Agricultural Practice for Protection of Waters) Regulations 2005
  • The making of the European Communities (Good Agricultural Practice for Protection of Waters) Regulations 2006 which revoked and re-enacted with amendments the 2005 Regulations

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  • The making of the European Communities (Good Agricultural Practice for Protection of Waters) Regulations 2007 which amended the 2006 Regulations by providing for increased penalties and for prosecution on indictment of offences
  • The granting by the European Commission in 2007 of a derogation under the Nitrates Directive to Irelandin respect of eligible grassland farms that allows farmers to operate at up to 250 kg of organic nitrogen per hectare subject to certain conditions and the operation of this derogation by the Department of Agriculture, Fisheries and Food
  • The making of the European Communities (Good Agricultural Practice for Protection of Waters) Regulations 2009 which revoked and re-enacted with amendments the 2006 and 2007 Regulations
  • The establishment in 2008 of the Agricultural Catchments Programme which is being conducted by Teagasc and which is evaluating the effectiveness of the Nitrates Action Programme mitigation measures
  • With effect from February 2010, the Department of Agriculture, Fisheries and Food commenced carrying out a proportion of inspections under the Nitrates Regulations on behalf of Local Authorities

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Chapter 3 – Summary of Draft Amendments

Outline of the Proposed Amendments

The full text of the draft Regulations is at Appendix 1 to this consultation paper. The following is an outline of all proposed amendments of significance (minor amendments such as the change in the date of the Regulations from 2009 to 2010 are not covered in this section).

Part 1 – Preliminary

Article 1(b)

Under Article 1(b) the Regulations will come into effect on 1 September 2010 (except where it is otherwise provided in relation to any particular provision).

Article 2

Article 2 provides that the European Communities (Good Agricultural Practice for Protection of Waters) Regulations 2009 will be revoked with effect from 1 September 2010.

Part 4 – Prevention of Water Pollution from Fertilisers and Certain Activities.

Article 21

Articles 21(1) and (4) are amended by the substitution of “30 November” for “15 January”. Article 21(5) is amended by the substitution of “1 December” for “15 January “.

The purpose of these amendments is to revise the dates where the establishment of a green cover is required following either (1) the ploughing of arable land or (2) the application of a non-selective herbicide to arable land or grassland. This revision follows concerns expressed about the effective ban on ploughing for spring crops before the 15 January. It is considered that, due to low soil temperatures in December and January, this adjustment can be made without any substantial increase in the risk of leaching of nitrates.

Part 6 – Functions of Public Authorities

Articles 27(4), 29(1)(b) and (7)

Article 27(4) is amended to allow for any future Commission Decision on Ireland’s derogation to be reflected in the necessary monitoring, controls and reporting obligations. The phrase “(or the related Articles in any subsequent Commission Decision)” has been inserted accordingly. This revision is necessary as the current

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Commission Decision of 22 October 2007 in relation to the derogation, expires on 17 July 2010. Articles 29(1)(b) and (7) have been similarly revised.

Article 27(5)

The words “Upon written request” have been deleted from the opening of Article 27(5) to facilitate the revised inspection arrangements which commenced in February 2010 whereby the Department of Agriculture, Fisheries and Food will make reports of inspections available to Local Authorities and/or the Agency.

Other information in relation to any farm holding or holdings can only be released by the Minister for Agriculture, Fisheries and Food upon written request by a Local Authority and/or the Agency and where such transfer of information is necessary for the purpose of ensuring compliance with these Regulations. The words “upon written request” have, therefore, been repositioned in the body of the article to underline the position.

Article 28(1)

This Article has been revised by the deletion of the date (30 June 2010) by which Ireland’s 2nd Nitrates Action Programme must be published by the Minister for the Environment , Heritage and Local Government and the insertion of the date (31 December 2013) by which the 3rd Nitrates Action Programme must be published. This revision will align Ireland’s Nitrates Action Programme to a calendar year basis.

Article 29(2)

This Article has been revised by the deletion of the date (31 December 2009) by which the Agency is required to submit a report to the Minister for the Environment, Heritage and Local Government of the results of its review of progress made in implementing the Nitrates Action Programme and recommendations as to such additional measures (if any) as appear to be necessary. A date of 30June 2013 has been inserted for the submission of the Agency’s next report which will be six months in advance of the publication of Ireland’s 3rd Nitrates Action Programme (revision to Article 28(1) refers).

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Appendix 1

CONSULTATION DRAFT

of

EUROPEAN COMMUNITIES

(GOOD AGRICULTURAL PRACTICE FOR PROTECTION OF WATERS)

REGULATIONS 2010

Article

PART 1

PRELIMINARY

1.‌‌‌Citation, commencement and application

2.‌‌‌Revocations

3.‌‌‌Interpretation

PART 2

FARMYARD MANAGEMENT

4.‌‌‌Minimisation of soiled water

5.‌‌‌Collection and holding of certain substances

6.‌‌‌Provision and management of storage facilities

7.‌‌‌General obligations as to capacity of storage facilities

8.‌‌‌Capacity of storage facilities for effluents and soiled water

9.‌‌‌Capacity of storage facilities for pig manure

10.‌‌‌Capacity of storage facilities for poultry manure

11.‌‌‌Capacity of storage facilities for manure from deer, goats and sheep

12.‌‌‌Capacity of storage facilities for manure from cattle

13.‌‌‌Reduced storage capacity in certain circumstances

14.‌‌‌Operative date

PART 3

NUTRIENT MANAGEMENT

15.‌‌‌Interpretation, commencement etc

16.‌‌‌Duty of occupier in relation to nutrient management

PART 4

PREVENTION OF WATER POLLUTION FROM FERTILISERS AND CERTAIN ACTIVITIES

17.‌‌‌Distances from a water body and other issues

18.‌‌‌Requirements as to manner of application of fertilisers, soiled water etc

19.‌‌‌Periods when application of fertilisers is prohibited

20.‌‌‌Limits on the amount of livestock manure to be applied

21.‌‌‌Ploughing and the use of non-selective herbicides

PART 5

GENERAL

22.‌‌‌General duty of occupier

23.‌‌‌Keeping of records by occupier

24.‌‌‌False or misleading information

25.‌‌‌Authorised person

26.‌‌‌Offences and related matters

PART 6

FUNCTIONS OF PUBLIC AUTHORITIES

27.‌‌‌Minister for Agriculture, Fisheries and Food

28.‌‌‌Making and review of action programme by the Minister

29.‌‌‌Agency

30.‌‌‌Local authorities

31.‌‌‌Compliance with Data Protection Acts

32.‌‌‌Certificate in relation to nutrient content of fertiliser

33.‌‌‌Exemption for exceptional circumstances for research

34.‌‌‌Transitional provisions

SCHEDULE 1

Soil test

SCHEDULE 2

Criteria as to storage capacity and nutrient management

SCHEDULE 3

Storage periods for livestock manure

SCHEDULE 4

Periods when application of fertilisers to land is prohibited

SCHEDULE 5

Conditions applying in relation to derogation

CONSULTATION DRAFT

EUROPEAN COMMUNITIES (GOOD AGRICULTURAL PRACTICE FOR PROTECTION OF WATERS) REGULATIONS 2010[ ]

WHEREAS, I, JOHN GORMLEY, Minister for the Environment, Heritage and Local Government, having regard to section 3(3) of the European Communities Act 1972 (as inserted by section 2 of the European Communities Act 2007) (hereinafter referred to as the Act of 1972), consider it necessary for the purpose of giving full effect to Directive 75/442/EEC of 15 July 19751, Directive 91/676/EEC of 12 December 19912, Directive 2000/60/EC of 23 October 20003, Directive 2003/35/EC of 26 May 20034, Directive 2006/11/EC of 15 February 20065 and Directive 2006/118/EC of 12 December 20066 to make provision for offences under the following Regulations to be prosecuted on indictment:

AND WHEREAS, I consider that it is necessary, having further regard to section 3(3) of the Act of 1972, and for the purpose of ensuring that penalties in respect of an offence prosecuted in that manner under the following Regulations are effective, proportionate and have a deterrent effect, having regard to the acts or omissions of which the offence consists, to make such provision in the following Regulations:

AND WHEREAS, the Commission of the European Communities has, by decision of 22 October 2007, granted a derogation requested by Ireland pursuant to Council Directive 91/676/EEC of 12 December 1991;

NOW THEREFORE, I, JOHN GORMLEY, Minister for the Environment, Heritage and Local Government, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) as amended by the European Communities Act 2007 (No. 18 of 2007) and for the purpose of giving effect to Directive 75/442/EEC of 15 July 19751, Directive 91/676/EEC of 12 December 19912, Directive 2000/60/EC of 23 October 20003, Directive 2003/35/EC of 26 May 20034, Directive 2006/11/EC of 15 February 20065 and Directive 2006/118/EC of 12 December 20066 hereby make the following Regulations:

PART 1

PRELIMINARY

Citation, commencement and application

1.‌‌‌(a)‌‌‌These Regulations may be cited as the European Communities (Good Agricultural Practice for Protection of Waters) Regulations 2010.

(b)‌‌‌These Regulations shall come into effect on 1 September 2010 save as is otherwise provided in relation to any particular provision.

(c)‌‌‌These Regulations shall apply to all holdings in the State.

Revocations

2.‌‌‌The European Communities (Good Agricultural Practice for Protection of Waters) Regulations 2009 are revoked with effect from 1 September 2010.

Interpretation

3.‌‌‌(1)‌‌‌In these Regulations, save where the context otherwise requires—

“Act of 1992” means the Environmental Protection Agency Act, 1992 (No. 7 of 1992);

“Agency” means the Environmental Protection Agency established under section 19 of the Act of 1992;

“agriculture” includes the breeding, keeping and sale of livestock (including cattle, horses, pigs, poultry, sheep and any creature kept for the production of food, wool, skins or fur), the making and storage of silage, the cultivation of land, and the growing of crops (including forestry and horticultural crops);

“application to land”, in relation to fertiliser, means the addition of fertiliser to land whether by spreading on the surface of the land, injection into the land, placing below the surface of the land or mixing with the surface layers of the land but does not include the direct deposition of manure to land by animals;

“aquifer” means any stratum or combination of strata that stores or transmits groundwater;

“biochemical oxygen demand” for the purposes of sub-article (2)(b)(i) means a 5 day biochemical oxygen demand test done in accordance with method ISO 5815-1:2003, International Organisation for Standardization, or any update of that method;

“chemical fertiliser” means any fertiliser that is manufactured by an industrial process;

“Commission Decision of 22 October 2007” means the decision made by the Commission of the European Communities on 22 October 2007 granting a derogation requested by Ireland pursuant to the Nitrates Directive;

“dry matter” for the purposes of sub-article (2)(b)(ii) means a test for total solids done in accordance with method 2540B, Standard Methods for the Examination of Water and Wastewater, American Public Health Association, 21st Edition, 2005, or any update of that method;

“farmyard manure” means a mixture of bedding material and animal excreta in solid form arising from the housing of cattle, sheep and other livestock excluding poultry;

“fertiliser” means any substance containing nitrogen or phosphorus or a nitrogen compound or phosphorus compound utilised on land to enhance growth of vegetation and may include livestock manure, the residues from fish farms and sewage sludge;

“groundwater” means all water that is below the surface of the ground in the saturation zone and in direct contact with the ground or subsoil;

“holding” means an agricultural production unit and, in relation to an occupier, means all the agricultural production units managed by that occupier;

“livestock” means all animals kept for use or profit (including cattle, horses, pigs, poultry, sheep and any creature kept for the production of food, wool, skins or fur);

“livestock manure” means waste products excreted by livestock or a mixture of litter and waste products excreted by livestock, even in processed form;

“local authority” means a city council or county council within the meaning of the Local Government Act, 2001 (No. 37 of 2001);

“the Minister” means the Minister for the Environment, Heritage and Local Government;

“net area”, in relation to a holding and the grassland stocking rate, means the gross area of the holding or the grassland as appropriate excluding areas under farm roads, paths, buildings, farmyards, woods, dense scrub, rivers, streams, ponds, lakes, sandpits, quarries, expanses of bare rock, areas of bogland not grazed, areas fenced off and not used for production, inaccessible areas and areas of forestry (including Christmas trees), or required to be totally destocked under a Commonage Framework Plan;

“the Nitrates Directive” means Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources;

“occupier”, in relation to a holding, includes the owner, a lessee, any person entitled to occupy the holding or any other person having for the time being control of the holding;