Environmental Regulation - what you need to know
26th Jun 2019 / By Lizzie Wilson
Pig producers need to be aware of a number of looming environmental regulatory issues that could soon be affecting their businesses. NPA policy services officer Lizzie Wilson explains
The environment policy area has been a little quiet for a while, in comparison to some of the other big issues making the headlines, such as price, ASF and animal welfare.
But a number of concerns have been looming on the horizon and are now threatening to impact all at the same time. It's complicated and quite technical in parts, but I'll try to explain just what you need to know.
Habitats and ammonia
There is a lot of activity around ammonia policy currently, predominantly prompted by Michael Gove's Clean Air Strategy and the lack of legal control over non-permitted sites. More importantly, a number of European legal cases pertaining to the Habitats Directive have set a legal precedent, which has driven a change in approach.
The lesson in all this is, if you want to effect change or influence legislation (particularly where Natural England are concerned), mount a legal challenge! This change in policy is likely to affect not only permitted sites, but also non-permitted sites via planning, going forward.
While permitting is no longer such an issue for pig units these days, it's planning that is increasingly presenting a significant challenge and more specifically the impact of nitrogen deposition from pig and poultry units on local sensitive habitat sites.
Natural England has been making noises about ammonia emissions and nitrogen deposition for a few years now, but always with the caveat that industry would be informed and consulted throughout and before any sort of legislation was formed.
This has, however, finally culminated in a rather swift about turn and subsequent inconsistent messaging, locally and nationally, from Natural England, which has been bruised by one particular legal case – the Wealden judicial review.
NE’s response to the case was legally challenged and found to be distinctly lacking. Its legal team has therefore reacted, we would argue, disproportionally and NE now requires planning authorities to insist that applicants provide ammonia impact assessments which include other local farms (in-combination assessments).
This is to help gauge the cumulative impact of your proposed development (which may be just a single building) and other recent applications in the local area, as well as mitigation measures for units seeking planning permission. The problem with in-combination assessment is identifying the relevant sites, and then understanding their stock numbers, production system, ventilation etc to ensure the model produces accurate data.
The only authorities which hold a database of in-combination projects are Shropshire and parts of Wales, as they have adopted this more stringent approach as business as usual.
Now add to this NE’s new position on lowering the thresholds that your site must fall beneath when assessed for ammonia emissions and subsequent impact, and this is starting to cause some serious headaches! For example, in some parts of the country (Shropshire specifically), for every application for pigs within the screening distances – 10km for a Special Area of Conservation, 5km for a Site of Special Scientific Interest (SSSI) – NE has lowered the ammonia threshold with which you must comply to 4% (from 20%) for a SSSI and to 1% (from 4%) for an SAC!
Furthermore, this reaction only seems to be triggered by pig and poultry planning applications. Farmers applying for cattle sheds next to SSSI's, for example, have not been subject to the same process, although we are hearing this is changing.
Also, NE are only being consulted in certain areas of the country and therefore producers (and their planning consultants) will often have no idea whether their proposal will be acceptable or not, or will incur significant additional cost.
There is also some tension between Natural England, which, of course, is in charge of conservation, and the Environment Agency, which covers permitting and pollution.
For permitted sites, the EA is now under a lot of pressure from NE to follow suit and lower its thresholds as they are not 'Wealden compliant'. They fear they may be vulnerable to legal challenge.
However, the EA don't want to adopt a knee jerk reaction, and they're conscious that permitted farms actually only contribute 4% of total UK ammonia emissions and, therefore, it is predominantly the other agricultural sectors and the background levels that are more of an issue.
They tell us that they want to take a more holistic and balanced approach, which will lead to a pragmatic and appropriate (but robust, so not open to challenge) screening assessment which will help protect habitats. The EA have got a large and complicated piece of work in front of them as they need to agree one approach which meets a number of different criteria.
Furthermore, they have noted that the legal challenges relate to assessment of European sites (SACs etc) only and not to SSSIs or other nationally and locally designated sites, whereas NE have been applying their new strategy to SSSIs.
So, basically, we and our members need to be prepared for the thresholds potentially being lowered, but EA have assured us that they will try to manage this appropriately and we will be trying to influence both EA and NE accordingly.
We do need to consider whatever the EA decide for permitted units may be adopted by planners as gold plating for non-permitted units too. The EA sounded refreshingly pragmatic about it all - NE is another kettle of fish entirely! They have been really quite evasive on this, not helped by the fact that they are severely under resourced.
We are pushing hard and will be maintaining the pressure, on both NE and with government as we know just how detrimental this could be. But… it may become more and more difficult to obtain planning permission in future.
New Farming Rules for Water
The New Farming Rules for Water were implemented April 2018 but farmers were given a year introductory period until April 2019. A specific issue around nutrient management planning and organic manures is becoming apparent as both NPA and NFU are receiving complaints from members.
The spreading of high available N content (>30%) slurry during the autumn period, bar for crops with a recognised nutrient requirement according to RB209 (AHDB nutrient management guide), such as OSR will be closely monitored. We are receiving reports that when spreading organic manure, farmers should spread according to the limiting nutrient.
For example, for fields of P indices of 3 and above (where there is no P requirement, again according to RB209), producers should spread according to crop P offtake and then top up with bagged fertiliser for all other nutrients.
Soils should be tested for N, P & K levels every five years and should be accounted for when spreading organic manure. Soils of index 5 and above are going to have to be avoided completely as the rules state farmers must not cause a significant risk of causing pollution. There are concerns, especially on light and sandy soils of P leaching.
NPA is currently working with NFU to produce guidance for members and to provide evidence such as relevant case studies to highlight just how untenable this will be for the majority of arable and livestock farmers in practice as it would appear that the EA are interpreting and using the New Farming Rules for Water to enforce as they see fit. We will also be asking the EA to clarify its position as there appears to be inconsistency in their approach throughout the country.
Our advice currently is to start soil testing so you at least know what you're dealing with from the start!
Slurry store covers! Some of you may remember that there is a condition included in your permit for all slurry stores to be covered by 2020. However, the Bref review/BAT Conclusion deadline is February 2021. Therefore, the EA have confirmed this requirement will be delayed until 2021. However, operators really need to start thinking about how they will comply now!
Something else to be aware of is that there are now additional costs for certain assessments, which was introduced as part of the new charging regime. There are certain assessments that the EA will charge for that are only specific to intensive farming permits, as shown in this document (see section 2, which is summarised below):
Assessing plans charge
If the Environment Agency needs to carry out additional assessments for a particular activity at a particular location, they will charge extra for this work. In some cases, the costs of assessing these plans is included in the fixed application charge.
You must pay this charge when applying for a new permit or if you need to submit a new plan when applying for a permit variation.
The plans and assessments are:
For certain protected sites, a habitats assessment – a fixed charge of £779.
This is an assessment of the risks to one or more of these sites:
- European Site within the meaning of the Conservation of Habitats and Species Regulations 2017
- Site referred to in the National Planning Policy Framework 2018 as requiring the same assessment as a European Site
- Site of special scientific interest within the meaning of the Wildlife and Countryside Act 1981
- Marine conservation zone within the meaning of the Marine and Coastal Access Act 2009
- Permit applications for a flood risk activity, or water activity carried out by householders or for non-commercial purposes do not attract an additional habitats assessment charge.
For intensive farming installations only, assessing:
An ammonia modelling assessment – a fixed charge of £620
A dust and bio-aerosol management plan – a fixed charge of £620
For other activities (excluding intensive farming installations) assessing:
- A fire prevention plan – a fixed charge of £1,241
- A pests management plan – a fixed charge of £1,241
- An emissions management plan – a fixed charge of £1,241
- Odour management plan – a fixed charge of £1,246
- Noise and vibration management plan – a fixed charge of £1,246
The EA has since agreed that they will only charge the habitats assessment fee for intensive farm applications where they actually have to complete a separate assessment which is then sent to Natural England - so don't let them tell you otherwise!