Sustainable Land Management Branch

Sustainable Land Management Branch

Agriculture and Rural Affairs Division

Welsh Government

Rhodfa Padarn

Llanbadarn Fawr

Aberystwyth

Ceredigion

SY23 3UR

www.wales.gov.uk/consultations

20th November 2015

Dear Sir / Madam,

Review of the Water Resources (Control of Pollution) (Silage, Slurry and Agricultural Fuel Oil) (Wales) Regulations 2010

Thank you for inviting the Farmers’ Union of Wales to contribute to the above consultation. Following an internal consultation with its eleven County Branches, the Union submits the following comments for your consideration.

Question 1

Do you agree that the SSAFO storage calculation method and requirements should be changed to those as required by the NVZ Regulations?

A proposal to align SSAFO and NVZ storage calculations was made previously in the 2012 Review of Nitrate Vulnerable Zones in Wales consultation and this proposal was rejected by the FUW[1].

Whilst there is some merit in streamlining the way that the calculations are made, there is concern that amending the SSAFO regulations to require storage capacity based upon amended NVZ calculations will result in an increased storage requirement overall.

The consultation states that the requirement for 5 months storage capacity for livestock manure and 6 months for pig and poultry manure will be carried over. However, the consultation goes on to state that the adoption of the NVZ calculation, which uses different rainfall figures and does not necessarily need to include lightly fouled water, would mean that, in most cases, a 4 month storage period calculated by the NVZ storage calculation would require less storage than is currently required under the existing SSAFO calculation. The existing SSAFO calculation requires a minimum of 4 months storage capacity.

However, the comparison between 4 months storage capacity under the amended NVZ calculation and 4 months storage under the existing SAFFO regulation is rather misleading. Under the proposals, farmers subject to the SSAFO regulation would see an increase from a requirement to have 4 months storage capacity to between 5 and 6 months storage under the new NVZ calculation. Thus, when discussing the impact of this proposal, this is the comparison of storage capacity that should have been made.

The FUW maintains that there remains a lack of evidence available to support the need for increased storage requirements outside NVZs and would seek to ensure that aligning the SSAFO and NVZ storage capacity calculations does not function to place any increased storage capacity requirements on to farmers residing outside an NVZ. Given that the 2013 regulations saw just 2.3 percent of the agricultural land in Wales designated as a NVZ, aligning the regulations in this way is disproportionate if it results in a requirement for increased storage capacity in non-NVZ areas.

Question 2

Do you agree with the changes to the definitions as proposed?

Members had no specific objections to the changes to the definitions as proposed.

Question 3

Are there any other elements of the Regulations that should be clarified or legally defined?

Members noted this section of the consultation and no comments were forthcoming.

Question 4

Do you agree with the proposal to accommodate new technologies and practices in view of the findings of the CIRIA 126 review?

Members responding to this section of the consultation believed that the finding of the review should be considered in order to account for new technologies and practices. However, the Union would seek to ensure that such technological advances are viable, appropriate and do not cause exclusions elsewhere.

Question 5

Do you agree with the proposal to include rules on the storage of manure in temporary field heaps?

The Union notes that the storage of manure in temporary field heaps is not currently covered by the SSAFO regulation. However, given that any possible pollutants resulting from such field heaps are likely to be retained in the soil or diluted with uncontaminated water, raising SSAFO regulatory requirements to match that of onerous NVZ regulation is unwarranted.

Amongst the proposals, the Union notes the proposal to ensure that a temporary field site must not be in a field liable to flooding or becoming waterlogged. Given that the degree to which a field becomes waterlogged is dependent on factors such as the volume and distribution of rainfall, several members were concerned that designating fields on the farm that are suitable for temporary field heaps could become an expensive exercise. The addition of this proposal to areas outside NVZ zones is therefore disproportionate and the proposal contains no scientific validation for its inclusion into SSAFO regulation.

The Union also notes the proposal to ensure that a temporary field site must not be located in any single position for more than 12 consecutive months or located in the same place as an earlier one constructed within the last two years. Several members commented that the decomposition of manure heaps was improved if left in one position for more than two years and added that the resultant compost was of better quality. Members also stated that this proposal would result in an increased movement of field heaps. Many of these heaps are strategically positioned dependent on the farm layout and are essential to working farm practise.

The Union notes that one justification for increasing SSAFO requirements to match those required under NVZ regulation is to ‘prevent confusion by a single approach’. Given that the overwhelming majority of farmers currently reside outside an NVZ area in Wales, this ‘simplification’ process will inevitably result in more stringent rules being unreasonably and disproportionately applied. The Union would prefer to see a more tailored and reasonable approach which recognises the different requirements and needs of these different areas.

Moreover, the present consultation provides no evidence to suggest that differing approaches on the storage of manure in temporary field heaps would cause confusion and the Union would therefore seek a more pragmatic approach to this issue.

Question 6

Do you agree with the principle of including constructed wetlands within the SSAFO Regulations if further evidence becomes available to support this?

Members responding to this section of the consultation agreed with the principle of including constructed wetlands when further evidence becomes available.

Question 7

Do you agree with the proposal to introduce an inspection and maintenance regime for those stores which fall under the Regulation 6 exemption?

It is a long-standing position of the FUW that stores which fall under the Regulation 6 exemption should remain exempt from the SSAFO regulations within the context of this consultation.

Given the reliance on livestock production in Wales, the removal of the exemption would have a significant effect on existing silage clamps and fuel oil stores which will have significant cost implications for the entire industry in Wales which would be wholly disproportionate to any environmental benefits gained. The latter is especially pertinent given that the FUW is unaware of any significant problems with these older stores.

The proposal not to repeal the exemption for pre-1991 slurry, silage and fuel oil stores acknowledges the cost implications to the industry in Wales and the need for a risk-based approach to assessing the condition of these stores.

The Union notes that, in order to ensure that exempt installations are fit for purpose, it is proposed that a regular assessment regime is a better approach than the removal of the exemption.

The Union notes the preference contained within the present consultation is for the ‘person in control of the installation’ to be responsible for ‘inspecting and ensuring the condition’. Several members commented that owners of exempt stores would be responsible for any environmental damage caused and added that this was sufficient incentive to ensure that those in control of the installation ensured that it was indeed fit for purpose.

The Union would welcome any move to minimise the financial and administrative burden of retaining the exemption by providing a more flexible approach to compliance. Given that the consultation does not provide any guidance on the best practise needed for self-assessment, it remains difficult to determine the impact of this regime on the farming sector and the FUW would therefore welcome further discussion on this issue in order to develop a self-assessment protocol which reduces red tape.

Question 8

Should the Regulations specify who should undertake inspections and how they should be recorded?

See question 7 above.

Question 9

Should it be an offence not to keep a record of inspections?

Members responding to this section of the consultation did not accept the proposal to make it an offence not to keep a record of inspections.

Question 10

Should the safety zones and silo and slurry store construction standards of the SSAFO Regulations be incorporated into cross compliance?

All members responding to this section of the consultation strongly opposed the inclusion of SSAFO regulations pertaining to silo and slurry store construction standards within the cross compliance regime.

According to the Water Resources (Control of Pollution) (Silage, Slurry and Agricultural Fuel Oil) (Wales) Regulations 2010 Guidance for Farmers, breaches of the regulations are punishable by a fine of up to the statutory maximum[2] on conviction in a Magistrates’ Court. If the case is heard in the Crown Court the penalty could be an unlimited fine.

The Union believes that the existing penalty system remains a sufficient disincentive and would add that no evidence was provided within the present consultation to justify the use of cross compliance within this context. Indeed, no supporting evidence was provided to prove that the use of cross compliance would function to reduce future pollution incidents. Given the potential for multiple penalties for the same offence, the FUW therefore cannot support the proposal to place these standards of the SSAFO regulations into cross compliance.

Question 11

Do you agree with the proposal to enable enforcement of the SSAFO Regulations through civil sanctions?

Members did not provide a majority response on this issue.

Question 12

Additional Comments

Members noted the proposal to notify NRW at the design stage of an installation and this represents an addition notification from the present requirement to notify NRW at least 14 days before an installation is first used. The Union recognises that this process could function to reduce costly errors in non-compliance but would seek to ensure that every effort is made to keep the administration associated with this change to the minimum. Moreover, the FUW believes that if this additional notification has any associated cost to the farmer, then participation should be on a voluntary basis only.

Several members commented that new installations must already adhere to existing planning and building regulations and suggested that, if additional guidance was required, general NRW guidance could be released to avoid the need to review every planning application and the likely concomitant rise in financial and administrative burden.

Several members commented that there was a need to provide financial support to farmers in order to aid in genuine attempts to improve silage and slurry storage. This is especially pertinent given the sharp decline in both current and forecasted farm incomes. Several members also commented that the whole farm improvement nature of the Sustainable Production Grant did not allow for easy access to funded improvements related only to silage and slurry storage.

I trust the due consideration will be offered to the preceding comments.

Yours sincerely

Dr Hazel Wright

FUW Senior Policy Officer

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[1] FUW response to the Review of Nitrate Vulnerable Zones in Wales, 20th March 2012

[2] At the time of publication of this guidance this was set at £5,000.