Subordinate Legislation
We now come to consider agenda item 4, a negative statutory instrument, the Designation of Nitrate Vulnerable Zones (Scotland) Regulations 2000 (SSI 2000/96), as shown on committee paper TE/00/11/6. The regulations are accompanied, as normal, by an Executive covering note and a committee covering note, papers TE/00/11/7 and TE/00/11/8 respectively.
Two annexes to the regulations and a submission from Nora Radcliffe have also recently been circulated to members. The Subordinate Legislation Committee considered the instrument at its meeting on 20 April, and requested further information from the Executive. The response was considered by that committee on 2 May, and extracts from the committee's subsequent report and the Executive's response are attached to the committee covering note on the regulations.
Members will be aware that a motion to annul the instrument has been lodged by Nora Radcliffe. Brian Adam has joined us for this agenda item, and we welcome him. Members may have technical points of clarification or other questions to raise with the minister or her officials in advance of debate of the motion. I remind members that the minister's officials may not participate during the formal debate.
We will begin with a brief introductory statement from the Minister for Transport and the Environment, and then I will ask committee members if they have any technical matters to raise with the officials.
With me are Bridget Campbell from the Executive's environmental protection unit, David Rogers, who has been handling this issue in the Scottish Executive, and Dr Ken Pugh from the Scottish Environment Protection Agency. I hope that we will be able to answer all the questions that you want to ask us.
The regulations designate an area draining into the Ythan estuary in Aberdeenshire as a nitrate vulnerable zone in which farmers will have to follow rules to reduce water pollution. It is the second such area that we have identified in Scotland. There is already one at Balmalcolm in Fife. There are likely to be further designations in Scotland and south of the border over the next few years.
We have made the regulations to fulfil our obligations under the European Community nitrates directive, which aims to protect waters from nitrate pollution from agriculture. Diffuse pollution from agriculture, such as slurry washed from fields, is one of the most important causes of water pollution in Scotland. Current projections suggest that, by 2010, when planned improvements in sewerage are in place, farm pollution will be the most important cause of river pollution.
Like other EC directives, the nitrates directive places binding obligations on member states. In Scotland, that obligation falls on the Scottish Executive. The directive requires action on three fronts. First, it requires the establishment of codes of good agricultural practice; in Scotland, that is our statutory code of practice on the prevention of environmental pollution from agriculture activities, which I shall refer to as the PEPFAA code. Secondly, it requires monitoring of nitrates pollution, which in Scotland is carried out by SEPA. Thirdly, it requires nitrate vulnerable zones to be designated for waters needing particular protection.
There are two broad circumstances in which we are required to designate NVZs: first, where rivers, lakes, lochs or ground waters contain more than 50 milligrams per litre of nitrates or where they could do so if protective action were not taken; secondly, where waters are eutrophic or may become eutrophic in the near future if protective action is not taken. Eutrophic waters are waters enriched by nutrients. The directive defines eutrophication as the enrichment of water by nitrogen compounds, causing an accelerated growth of algae and higher forms of plant life to produce an undesirable disturbance of the balance of organisms present in the water and to the quality of the waters. It is important that we have that on the record. The designation of the Ythan NVZ was based on the second criterion on advice from SEPA about eutrophication in the estuary. High nitrate levels in fresh waters of the Ythan and its tributaries would, in any case, require designation of at least parts of the catchment.
Let me give you a sense of the considerable history that we have had to deal with in considering the Ythan as a candidate for NVZ designation. The former North East River Purification Board recommended designation in 1993, as did SEPA in 1997, on the basis of the condition of the estuary, and SEPA's report is publicly available. The main evidence related to the increased and extensive growth of Enteromorpha algae disturbing the ecological balance in the estuary, and to the rising levels of nitrate pollution in the river system. Farming is the preponderant source of nitrate pollution in the Ythan and inputs from other sources are trivial. Only around 2 per cent of the total nitrate load is from sewage. The view taken by Government in 1996 and again in 1998 was that there was not conclusive evidence that nitrogen levels were upsetting the natural balance of aquatic life, but it was made very clear that we would regularly review that position. A number of developments led to my decision to move forward to designation.
Infraction proceedings were initiated by the European Commission in spring last year, where it was alleged that the area should have been designated on the basis of the evidence that had been received by SEPA and which had been published. We then reviewed that position, and the legal advice that we were given was that there was a high probability of a link between agricultural nitrates pollution and eutrophication phenomena in the estuary, which requires designation, and that we had to consider the application of the precautionary principle.
In the circumstances, it was our view that we had no choice but to designate. If we attempted to argue otherwise in the European Court of Justice we could expect to lose. Ultimately, we could face large fines of tens of thousands of pounds per day, which would have to be paid out of the Scottish consolidated fund. Since then, the Commission has issued a reasoned opinion—in effect a public warning—about non-designation. In essence, that is the last stage of infraction before referral to the European Court of Justice, so we are quite far down the route with regard to this issue. In addition, in a separate case already before the European Court, the UK has acknowledged that the directive does require monitoring of all surface and ground waters. It had previously been the view that fresh water needed to be monitored only if it was used for drinking water.
Several tributaries of the Ythan have shown nitrate levels above the limit of 50 milligrams to one litre, and nearly all have shown readings above 40 milligrams to one litre. Overall, monitoring has revealed high and rising levels of nitrate in the river system, which would in any case require designation of at least part of the catchment. It has been suggested that Enteromorpha should be dealt with by dredging or chemicals, but our advice from SEPA is that that would be unlikely to solve the problem: the algal mats would grow back. In any case, we would still need to designate a nitrate vulnerable zone, because the algal mats are a symptom of eutrophication.
Another implication is that SEPA is having to expand monitoring for nitrates pollution. I announced in November that I am considering evidence of high levels of nitrates in rivers in Angus, Fife and the Borders, and it is likely that ground water monitoring will also reveal pollution. We expect to have to make further designations, but we are not yet in a position to move to that stage. The situation is paralleled south of the border, where there are already 60 NVZs, with significant expansion likely in future.
We acknowledge that this designation has implications for farmers. The directive requires us to establish statutory rules—the action programme—to be followed by farmers. We have some flexibility about how we apply those rules, but the rules must include limits and close periods for the application of fertiliser manure, and a requirement for adequate manure storage for the close periods. The rules must also include measures in our code of practice, and there will also be requirements for record keeping.
The rules will, in large part, be consistent with the code of practice, but we recognise that for some farmers there is a significant impact. The most significant financial impact is likely to be the cost of slurry storage. The agricultural support package, which was announced by my colleague Ross Finnie on 30 March, includes a 40 per cent grant scheme to help farmers in NVZs. That is state aid, which requires the approval of the European Commission, but there is already a scheme south of the border that we regard as setting a precedent. The Scottish Executive will also continue to fund advice on nutrient budgeting to farmers, which is a key component in managing this issue, via the Scottish Agricultural College.
The action programme rules for the Ythan have yet to be drawn up, but we intend to carry out a full consultation process with interested parties, which would of course include the agricultural community. We will be doing that later this year. It is important that where the directive provides flexibility, the action programme reflects the circumstances of the Ythan area and does not impose any unnecessary burdens on farmers. We will consider that when we take into account the experience of the voluntary measures that are already being looked at by the farming industry. Subsequent to that process of consultation and discussion, I will bring forward further regulations.
If I may sum up, the regulations designating the Ythan NVZ have been made in order to comply with the EC nitrates directive. We would expect a further period of consultation on the statutory rules that will have to be followed by farmers later this year. We have already consulted on the boundaries and have made some adjustments in the light of comments that were received. There will be a financial impact on some farmers, but the capital grant scheme should go some way to soften that impact. The voluntary measures to tackle agricultural pollution are to be commended, but we are not allowed to use them by EC law in place of designation. With that explanation, I invite the committee to oppose the motion for annulment.
I invite members to ask questions of the minister and her officials on the subject matter before I ask Nora Radcliffe to move the motion. Are there any questions?
I have a couple of questions that members of the team might be able to answer. First, there is a nature reserve in the vicinity of the mouth of the Ythan. Have you received any comments from organisations such as the Royal Society for the Protection of Birds or the Scottish Wildlife Trust?
Secondly, on the issue of better management of nitrate applications, some countries such as Sweden put a 50 per cent tax on nitrates to encourage farmers to save money by using nitrates more carefully. Are there any figures that you can give to persuade farmers that they would save a lot of money by better management of nitrate applications? I know that you are saying that nitrate application is not the principal cause of the problem, and that the principal cause is slurry management, but presumably run-off from fields from the application of nitrate may or may not be part of the problem. Is it part of the problem, and if so, what part does that play in the argument?
On the first point, we have received submissions on this issue. Can you clarify, David?
David Rogers (Scottish Executive Rural Affairs Department):
In response to the formal consultation late last year and earlier this year, we received representations from the RSPB and from other environmental organisations. I could not list them off the top of my head. I could also not tell you off the top of my head whether we received anything from the people who are responsible for the nature reserve, but we received representations from environmental non-governmental organisations that were supportive of the principle of designation, and quite detailed suggestions for the form of the action programme regulations. We will take account of that as we will of the representations from the National Farmers Union and others.
Do you have a question, Murray?
We have not answered Robin Harper's second question, which is about the management of nitrates and slurry. We see the prevention of environmental pollution from agricultural activity code as the starting point for that. In fact, some farmers in the area have already been trying to apply the PEPFAA code. We would be keen to use the work from the Scottish Agricultural College to help inform the community, so that we assist those farmers in that process, and use the prospect of the 40 per cent grant for slurry storage as a positive incentive. We are keen to focus on what can positively be done to help the agricultural community, because we recognise that help is sorely needed.
I would add that the Scottish Agricultural College has been working with farmers in the Ythan area to try out nutrient budgeting, which is demonstrating that some farmers are making better use of nitrate inputs than others are, so there are farming benefits as well as environmental benefits.
I understand that research is being carried out by the Scottish Crop Research Institute into the origin, movement and effects of nitrate in the catchment area, and that that research is on-going and is not yet concluded. In her comments, the minister said that there was a high probability of an agricultural link to eutrophication, but it strikes me that to move at this stage on a high probability before the research is completed is potentially premature. To a degree, it rules out the possibility of voluntary approaches, such as David Rogers just outlined, being a natural remedy for the problem.
Can we be certain that there are not high natural nitrate levels in the area anyway? Are we sure that taking measures in agriculture will have the desired impact? I have been to a farm in the Borders where soil precision techniques are being pioneered. Are we sure that those approaches in themselves are not adequate, particularly in the context in which the river readings have not prompted the order, but the eutrophication at the outfall has?
Our legal advice is that the high probability of a link between agricultural pollution and eutrophication phenomena in the estuary requires us to designate. I should stress that, as discussions were held in 1993, 1996 and 1998, there has been lengthy debate about designation and we have not moved precipitately or prematurely. We now believe that such a link requires us to address the issue.
The Scottish Crop Research Institute project will help us to trace the origins of nitrogen through factors such as the time of year, spatial patterns of occurrence and the biochemical process that generated it. Although that information will be very helpful for the whole issue of management in the Ythan, we should not forget that our monitoring identified the problem and was the trigger for our decision to designate. David Rogers will briefly explain what monitoring has been carried out and the readings we have received from different rivers.
SEPA and its predecessor, the North East River Purification Board, have been monitoring the Ythan and its tributaries for almost three decades. Obviously, the trends in nitrate levels fluctuate from year to year, but the overall trend is upward. We can pass graphs and other information to the committee if that would be helpful.
I have a few questions. I understand that monitoring has taken place throughout the river system and that nitrate levels at Ythanwells—where the Ythan starts—are much the same as those at Newburgh, where the river reaches the sea. Is that correct?
Dr Ken Pugh (Scottish Environment Protection Agency):
Yes. The Ythan catchment is peculiar among catchments in the north as there is a high level of nitrate from the top of the catchment to the bottom.
Does that not cast significant doubt on the suggestion that the eutrophication is caused by agriculture? There is fairly intensive agriculture all the way down the river; the area contains a quarter of the country's pig breeding, with all the slurry that that activity involves.
Brian, can you stick to the question areas for the moment.
Can you explain why you think there is a high probability that eutrophication is associated with agriculture if the evidence suggests that nitrate levels are the same at the start and at the end of the river?
The monitoring programmes of the North East River Purification Board and now SEPA have allowed us to assess the nitrogen status throughout the catchment. We have measured not only nitrogen concentrations in the river but the nitrogen and nitrates discharged from the sewage works in the catchment. By calculating the relative inputs down the catchment, we can estimate that only 2 per cent of the nitrogen that enters the estuary comes from the sewage treatment processes, which leaves 98 per cent to be accounted for. As there is no major industry in the catchment, we must assume that the nitrogen comes from soil-mediated processes and therefore, presumably, from agricultural activities.
I have a technical question about the position with European legislation. I understand that there was a challenge in the European Court of Justice and that the ruling, in May 1999, stated clearly that land from which nitrates are leaching into rivers has to be designated as vulnerable if agricultural activities are a substantial—even if only a partial—cause of pollution. Is that correct? If so, does the ruling mean that there is not a great deal of flexibility?
That is absolutely right.
I did not really understand the answer to Brian Adam's question. In his response, Dr Pugh translated the phrase "high probability" in the minister's statement to "assumption". Perhaps I am not grasping something here, but if the nitrate level is the same at the source as at the estuary, what is the evidence that agriculture is adding to the process? If A equals A, where does B come in?
Perhaps Dr Pugh can clarify the point, because the issue of tributaries needs to be taken into account as well.
Throughout the catchment, there is a consistency in contributions from agricultural practices in the tributaries, the main spine area and down into the estuary, which is where eutrophication has been evidenced through the growth of the weed Enteromorpha.
It is important to stress that we are also monitoring the river systems that feed into the estuary, not just the estuary itself.
Are you saying that although the other tributaries might be relatively nitrate free at their sources, they have accumulated levels of nitrate by the time they flow into the Ythan?
No. This catchment is quite different because of the intensity of agriculture right up to its watershed; it is a very low-lying catchment. It is also very different from adjacent catchments. For example, in the Don catchment, which is the nearest catchment to the south, there is still agriculture in the central area, but the upper part is bounded by mountainous areas and low-nitrate water comes down from the mountains and dilutes the nitrate effect in the catchment. Farther south, the water in the Dee catchment is even more nitrate depleted because of the lack of agricultural activity. As a result, there are very low concentrations of nitrogen in the Dee, slightly higher concentrations in the Don and very high concentrations in the Ythan. We must compare the circumstances of the Ythan catchment with other catchments as well as understand the processes in estuary systems that generate the Enteromorpha, which demonstrates eutrophication.
You used the word "assumption" in connection with the cause of eutrophication. Has that assumption been made on the balance of probability that a particular cause is more likely than not? What are the levels of criteria on which your assumption is based?
I used the word "assumption" because one cannot go into court and state categorically that one plus one equals two, chapter and verse proven. However, if one gathers all the information from the literature and all the evidence from local circumstances, one arrives at a very high probability for a particular cause.
Before a misconception takes hold, I just want to clarify a point—perhaps with these two glasses of water. One glass represents a tributary—tributary 1—with a concentration of nitrates. The other represents tributary 2, also with a concentration of nitrates. If we tip both glasses into the same bucket, the water contains the same concentration of nitrates. As a result, we should not expect the concentration to increase at any point throughout the river flow—all the water entering the catchment has the same nitrate level. Therefore, we should be examining conditions of flow, warmth and other factors at the estuary level that are conducive to the growth of algal blooms. Is that correct?
That is correct.
Robin's former pupils at Boroughmuir High School would be proud of him.
Without accepting in any way Mr Harper's argument—
But your question is?
My question is, how many of the 60 or so nitrate vulnerable zones that have been designated elsewhere have been designated on the basis that the nitrate level is greater than 50 mg and how many have been designated on your suggested basis of eutrophication?
We do not have that information because the designation regulations are not predicated on a comparison with other NVZs; they are predicated on whether there is a need to designate in this area. We are happy to provide supplementary information after the committee meeting, if members so wish, but I do not think that that is a critical issue for the designation regulations that we are considering.
I want to move slightly away from that subject.
Your report says that Scotland has one NVZ, at Balmalcolm in Fife. I know nothing about it. Could there be a farming or agriculture comparison with that NVZ? When was the Balmalcolm zone designated? How has it been monitored since? Has its application been successful?
It was designated in 1996 and the action programme rules came into force the year before last—at least, that is my understanding. SEPA has continued to monitor the waters—in this case, it is a borehole. SERAD staff enforce the action programme regulations, inspecting farm records and so on. However, it is too early to give the outcome of that designation.
How have the farmers in the area reacted? Do they feel that they are financially disadvantaged by the designation, or is it too soon to tell?
I do not have any information on that point.
Linda Fabiani raises the critical issue of future monitoring, which we have not really explored. To date, our discussions have dealt with the evidence in front of us. As reported to the committee, those discussions took place in 1993, 1996 and 1998. It is important that I tell the committee that we will continue to monitor the river Ythan and to assess the levels of nitrates identified. Under the designation regulations and under EC rules, we are required formally to consider the issue at least every four years. It is our intention to continue to monitor regularly. Should the levels drop as a result of the application of the PEPFAA code and the action programme, we will review the situation.
We will keep the issue under review. We have not taken this action without a great deal of thought and monitoring. This is not the end of the process. De-designation is possible in future, should the code and the action programme kick in as we intend that they should. We will keep monitoring throughout that process, which will be highly transparent. The monitoring information that we have discussed this morning is publicly available from SEPA. It is important that we reassure the farming community that this is not the last that we will hear of this issue. Consultation, the action programme and subsequent monitoring will take place, and we will review the matter in future. We must go through this critical stage as a result of EC law, but this is not the end stage. We will continue to monitor the situation and the questions that have been asked today are on precisely the issues that we will continue to consider.
Does the minister agree that concerns about the river Ythan are probably related to the algal bloom that is found in the river? There is some debate about whether that is due to nitrate levels or otherwise. Can the minister assure us that the algal bloom will be monitored? Perhaps the work of the Scottish Crop Research Institute could be included in the monitoring. We do not have levels that would support designation—
I can reassure you that we will monitor all the issues that we have discussed today. Ken Pugh may wish to add something on the detail of the process.
I want to assure Mr Adam that we will monitor both nitrate concentrations through the river and its tributaries and the distribution of Enteromorpha in the estuary. SEPA will undertake that work in collaboration with the Culterty field station in Newburgh.
As there are no other technical questions, I invite Nora Radcliffe to move motion S1M-804, which is in her name.
I did not lodge this motion lightly or without considerable thought. These are the first designation regulations to be proposed since the establishment of the Scottish Parliament and they will have a fairly weighty effect on the farming population in the area. It seemed to me that it behoved the Scottish Parliament not simply to agree the regulations on the nod but to debate their implications, the reasons for them, and the effect they will have on farmers.
People have known about the rising levels of nitrates in the River Ythan and the Ythan estuary for years. There has been considerable research activity in the Ythan estuary—Dr Pugh mentioned the Culterty research station. The estuary is an important habitat for wading birds and has one of the major breeding colonies of eider ducks.
A lot of scientific work has been done on the estuary for many years—for 30 years at least and probably for half a century. The North East River Purification Board and SEPA have also monitored the situation over many years. It has been said that the river Ythan is unusual in that pretty well all of its catchment area is farmed, much of it intensive livestock farming. In some ways, therefore, it is a one-off.
The other reason it is important to have this debate is, as the minister said, because monitoring demonstrates that rising nitrate levels have been found in other rivers on the east coast—in Fife and the Borders in particular—which also have farming in their catchment areas.
The growth of the algal weed Enteromorpha in the estuary has a long history. I am told by those who remember when sea-trout fishing was important to the local estate that people used to go out with horses and harrows to clear the weed. Therefore the weed, as a natural phenomenon, has been evident for a long time. The levels of the weed fluctuate, as do the levels of nitrates.
The trigger used as a benchmark for nitrate levels is 50 mg per litre. To put it in context, that is regarded as a high level; below that level, water is regarded as safe to drink. The high level may therefore sound worse than it is.
The consultation paper that was published when designation was proposed itemised the three EU criteria for designation: that nitrate levels of 50 mg per litre had been found in surface freshwaters, or in ground waters and that the estuary may be, or may become, eutrophic. The paper said that consideration of
"the current understanding of the behaviour of nitrogen compounds in the environment (water and soil)"
should be taken into account. That is quite an important factor in our consideration of what is happening in the Ythan estuary. The mechanism of how nitrates are stored in the soil, how they move through the environment and so on is not fully understood.
I wish to quote from a research paper produced by the Macaulay Land Use Research Institute to demonstrate the long-term nature of the problem and the factors that will feed into how we will deal with it, if and when the designation regulations are agreed.
"A nitrogen budget based on data from 1994 showed a surplus of some 5500 tonnes of nitrogen in the catchment (inputs-outputs) that year (compared with 1500 lost to the estuary). Therefore, some 3000 tonnes of surplus nitrogen accumulated in the soil in that year."
Therefore, we are not sure of all the mechanisms involved in how nitrogen comes to be stored in the soil, or how it leeches out. We must bear that in mind when we talk about how to tackle nitrate pollution.
I want to move on now to the concerns of farmers in the catchment area. There are around 1,000 farms, with quite intensive arable farming and a lot of intensive stock rearing. Where you get stock you get slurry. Farmers are worried about the inflexibility of designation; they feel that there is no exit strategy—although the minister mentioned that it would be possible to de-designate.
If farmers have to meet quite stringent requirements on the way they farm, there may be an effect on land values. Farmers are currently borrowed up to the hilt and land farm values affect borrowing capacity. If the value of the land is perceived to have diminished, farmers' borrowing capacity will diminish too. In the current climate, that is a very serious consideration for them.
Farmers are also worried about the sorts of restrictions that might be placed on them—for example, a closed period for spreading slurry. Obviously, livestock produce slurry at a fairly constant rate, but designation would necessitate a closed period for spreading slurry. That would have cost implications. Farmers are worried about the long-term effects of designation. They feel that this is a long-term problem, although the initial requirements on them may not be too onerous and will be in line with the sort of best practice that they use already. Dr Pugh has been studying the Ythan catchment for 30 or 40 years. Nitrate levels have been a factor in his studies throughout that time. It is a long-term problem; any solution will have to be a long-term solution. Farmers are worried that if there are no demonstrable results within a time frame that may be unreasonably short, unreasonable expectations will be placed on the practices they use on their farms.
Farmers would obviously prefer voluntary and co-operative action. A local Formartin partnership has been set up, involving local farmers, the local council and environmental groups. It has been considering the effects of eutrophication in the estuary and what can be done about it. A lot of work is being done voluntarily. In Ugie, which is slightly further north, they had a concerted voluntary attack on farming practices. By giving advice to farmers on the nitrogen budget, and by tree planting and so on, they reduced nitrogen levels in the area considerably.
The farmers' worry is that under designation and with a compulsory action plan, if things are not seen to change quickly, what is expected of them might become more onerous than is reasonable. It must be recognised that designation is a long-term project and that any action plan should not place unreasonable demands on farmers. The long history of nitrates in the estuary should be taken into account. It may be that we do not know enough to go for designation at this point—that is the point the farmers are making.
I move,
That the Transport and the Environment Committee recommends that nothing further be done under the Designation of Nitrate Vulnerable Zones (Scotland) Regulations 2000 (SSI 2000/96).
Minister, would you like to respond to the motion?
I wholeheartedly agree with Nora on the importance of this debate: it is the first time in the Scottish Parliament that we have debated designation regulations. It has been extremely helpful to run through the issues and put them on the record so that people can understand them. I fully understand why Nora has felt it important to move her motion.
The designation of the Ythan NVZ is an obligation under the European Commission nitrates directive. If we were to argue otherwise in the European courts we could expect to lose. The European Commission has initiated infraction proceedings against us already; we are now immediately before the stage of referral to the European courts. That process has required me to consider all the evidence anew, including scientific evidence on the condition of the estuary and the detailed results of SEPA's surface water monitoring, which were reported to us in 1999. Clear legal advice states that the precautionary principle must be followed.
Nora is right to say that this issue has a long history in the Ythan. The directive requires us to designate if an estuary is eutrophic—or if, in the near future, it may become eutrophic. That is the basis for this designation. We have evidence of high levels of nitrates pollution in the rivers that feed into the estuary, and that, in itself, would require designation of at least parts of the catchment area. Levels of nitrates are specified in the directive. We could debate endlessly over averages and over figures such as 50 mg per litre, but we have evidence of the levels and we have to act on the directive.
I expect to consult later this year on the detail of the action programme that farmers would have to follow in the NVZ. From representations, we are aware that there will be a financial impact on some farmers—especially because of the requirement for slurry storage. I hope that the 40 per cent grant scheme that Ross Finnie has announced will help with that.
The European Union sets down requirements for action programmes, covering issues such as closed periods for the application of fertilisers, limits to the application of fertiliser including specific limits for livestock manure, and a requirement for adequate manure storage capacity to allow for closed periods. Those requirements have informed the development of the 40 per cent scheme.
Of course we will consult the farming community and, where there is scope for flexibility, we will try to build that in to the action programme. I assure members of that. However, the European Commission wants us to demonstrate that in designating a nitrate-vulnerable zone we also have a programme of measures to tackle the problem. I emphasise that the Executive is sympathetic to farmers' concerns. The choice of the area that we identified for the designation was arrived at through consultation, when we were able to take on board some of the comments of the farming community.
We will continue to encourage the voluntary measures that Nora Radcliffe has urged on us. We will promote the PEPFAA code and the work with the Scottish Agricultural College. However, the bottom line is that European law requires us to designate an NVZ. We will continue to monitor the area and there is the option of de-designation in future. We are required to consider the situation at least every four years, but we will continue to monitor annually. We will ensure that all feedback from that monitoring is publicly available and that the farming community can follow the process. There is an exit strategy, but only if we can demonstrate that the levels of nitrates have dropped as required by European directives on NVZs. I therefore urge members to oppose the annulment that has been proposed by Nora.
The World Wide Fund for Nature has been doing some interesting work on preventing nitrates getting into rivers—for example by keeping cattle up to 200 yd from river banks and by planting with plants that will take up nitrogen. I presume that some of that work will qualify for aid under agri-environment schemes. Has any thought been given to targeting agri-environment support in river catchment areas such as the Ythan to reduce nitrate load?
With respect, we are discussing the motion at this point. I want members to make points and ask for clarification; the minister and Nora Radcliffe can sum up later—that is the phase we are at.
I will express my question as a view, in that case. Things can be done to help us get back to a level at which the area can have its nitrogen vulnerable zone designation taken away. The evidence before us shows that the principle involved is not precautionary. Dr Pugh said that he could not lay his hand on his heart and say that the nitrate was the cause of the algal bloom. He could not be 100 per cent sure. However, that level of certainty, while required in a criminal case in a court of law, is not required in this case. I think that there is overwhelming evidence of a connection between the nitrate loading and the algal bloom. Nora Radcliffe said that it has been noticed that the bloom has increased when nitrate levels have risen and has gone down when nitrate levels have fallen. That suggests—
May I correct you? There is no evidence that the nitrate levels have changed the—
Hang on, Nora. You will have an opportunity to respond in your summation.
I am sorry. I thought that Nora Radcliffe's evidence suggested that there was a connection. Perhaps further research will reveal that there is a connection.
A number of members have indicated that they want to leave the committee soon. I therefore ask members to make their points as quickly as possible.
My family farmed in the Wells of Ythan area, and I know that there is a major difference between that area and Newburgh. Members might have heard that, during the winter, the A96 is closed at the Glens of Foudland. That is where Ythanwells is and, because it is a hilly area, a different kind of agriculture is practised there than further down the river. That will produce a different nitrate load. For that reason, I do not accept the point that Robin Harper was making with his two glasses.
Nora Radcliffe referred to the fact that the algal bloom is significant in some years and not so in other years. That probably reflects the kind of winter that there has been—whether there are great spring floods and so on. There appears to be no direct link between nitrate levels and the amount of algal bloom.
The science is not strong on this point, which is why the minister has talked about the potential eutrophic problems. The nitrate level is not always more than 50 mg per litre in the Ythan—it varies throughout the year—whereas, as far as I understand, the level is always more than 50 mg per litre in other nitrate vulnerable zones. The scheme is not only the first to be designated by the Scottish Parliament, but is the first to be designated on that basis. Because of that, we should be cautious. We need to ensure that any management system that is put in place can make a difference. There is a chance that research done by the Scottish Crop Research Institute in the near future will have a bearing on the situation.
The agriculture community in the area is fragile. It contains a large part of Scotland's pig-breeding population. Pig farmers are already at the economic margins and a 40 per cent grant to put in slurry pits will not solve their problem as it will be hard for them to find the other 60 per cent. If their land values go down as a result of the situation that we are discussing, it will be hard for them to borrow more money. That could cause a major reduction in pig farming and dairy farming in the area.
At the end of the day, we must do what is right. I am not convinced that the science supports the argument put forward by the minister.
We are in a difficult situation because of decisions that have been taken in Europe. The boundaries within which we are operating have been made clear to us. I understand that the European Commission was to review the relevant directives but did not do so because it was felt that insufficient progress had been made. At the point, infraction proceedings were begun against 13 of the member states. If we do not go ahead with this designation, we will risk proceedings being instituted against us.
Nora Radcliffe talked about the farming industry and the need for support. I would like the minister to clarify whether there is an intention to create a scheme similar to the nitrate sensitive areas scheme that operated south of the border or whether support for the farming industry would be ensured through other financial assistance. If the latter is the case, the committee could recommend that a sympathetic approach be taken to the industry in that area.
I understand the issue and the broad principles that are at stake, but I have not followed much of what has been said in this discussion. I did not understand the point that Robin Harper made with his glasses or the point about the changing nitrate levels at different points of the river. I respect the fact that the minister has been involved in the process for a while, but I do not think that the committee is ready to handle the matter yet. I am not confident that I understand the matter absolutely. Reference has been made to evidence that I have not seen and to graphs that could have been circulated but which have not been. I am impressed by what Cathy Jamieson said—it seemed to be sensible—but she seems to have been better briefed than I have.
It was off the internet.
If members feel that the back-up papers are so scant that they have to scour the internet to get a handle on the situation, that makes the point that we are not yet ready to deal with the matter. I would not for a moment suggest that we should take on the EU, but I want more briefing and a greater understanding of the issues before I support the minister's position. She might be right, but I would like to be more convinced. At this point, however, I support Nora Radcliffe's position.
The Scottish Executive rural affairs department has already supplied money to support farmers in nutrient budgeting. We have done work to manage the issue of nitrates and that has been of benefit to the farmers.
It is too early for us to say what the action plan will be, but we will consult on the content of that plan.
We are engaged in discussions with the Scottish Agricultural College. There have also been discussions with the Scottish farming unions. I know that this measure is not welcomed by the agriculture community, but a great deal of work has been done on what it will mean in practice. We have tried to provide the right amount of information, as there are many issues that could be gone into.
As is apparent from Nora Radcliffe's and Brian Adam's comments, people who know the farming community know precisely what the background to the measure is. It is difficult to know whether we are providing too much or too little in the way of background briefing. We had hoped that this information would be sufficient. If people would like more information on particular issues, we would be happy to provide it. Much of the information is already publicly available through SEPA. Those who have researched the issue to the extent that Brian Adam and Nora Radcliffe have will be able to debate the fine detail of the instrument. I accept that not all members have been able to do that.
I hope that I have succeeded in making it clear that, given the advice that I have received from SEPA, the history of the issue, and the fact that infraction proceedings are currently being initiated against us, I do not feel that I have any choice in the matter. We need to try to manage the process through monitoring, the PEPFAA code and work with the farming communities. I know that this is a matter of great concern to people in the Ythan area, and we will provide them with every possible assistance. Earlier I outlined the form that I envisaged the assistance would take. I hope that the committee will not support Nora Radcliffe's annulment motion, although I acknowledge that we will continue to act with the farming community on many of the points that she has made.
The algal bloom has been in the estuary as long as anybody can remember. It comes and goes. It used to be disturbed physically when sea-trout fishing was carried out by local estates. People used to harrow out the weed and, as Brian Adam said, occasionally it would be swept away by spring spates. There is a long history of Enteromorpha in the estuary.
The farming community is concerned that if there is no short-term change in the eutrophication of the estuary—the bloom has been there for 30, 40 or 50 years—the screws will be tightened. Over the past couple of years, there has been evidence of a fall in the rate of increase in nitrate levels, possibly resulting from changes in farming practices.
The farming community would like people to understand that the Ythan is almost unique in the fact that all its catchment area is agricultural land, and to recognise that the process of nitrate build-up in the river and the growth of Enteromorpha is a long-term one. We are not altogether sure to what extent farming practices have contributed to that and to what extent this is a natural growth of weed in a slow-flowing river. The farming community accepts that designation is inevitable, but it would like people to understand that this is a long-term problem to which there may never be a complete solution, because of the nature of the catchment area and the fact that this is a tidal estuary that is not scoured out by the tides in the way that, for example, the Montrose basin is. The farming community is concerned that inappropriate measures should not be taken to make farmers change their practices in ways that cannot be demonstrated to be necessary.
Do you wish to press your motion to a vote or to withdraw it?
I would like to press it to a vote.
The question is, that motion S1M-804, in the name of Nora Radcliffe, be agreed to. Are we all agreed?
No.
There will be a division.
For
Mr Kenny MacAskill (Lothians) (SNP)
Nora Radcliffe (Gordon) (LD)
Mr Murray Tosh (South of Scotland) (Con)
Against
Helen Eadie (Dunfermline East) (Lab)
Linda Fabiani (Central Scotland) (SNP)
Robin Harper (Lothians) (Green)
Janis Hughes (Glasgow Rutherglen) (Lab)
Cathy Jamieson (Carrick, Cumnock and Doon Valley) (Lab)
Des McNulty (Clydebank and Milngavie) (Lab)
Abstentions
Mr Andy Kerr (East Kilbride) (Lab)
The result of the division is: For 3, Against 6, Abstentions 1.
Motion disagreed to.
The committee has decided not to recommend annulment of the instrument. Although that means that there will be no debate in the chamber, the committee must still report to the Parliament on the instrument.
It has been valuable to have the issue aired, as it is important to the farming community all along the east coast.
I agree. The committee is required to report its decision on the instrument. I suggest that we follow the usual format of such reports, report the result of the committee's debate on Nora Radcliffe's motion and confirm that we are content with the instrument. Is that agreed?
Members indicated agreement.
I thank the minister and her colleagues for attending a very long session.
We have a second instrument under the negative procedure to consider today, the Radioactive Substances (Basic Safety Standards) (Scotland) Regulations 2000. I refer members to committee paper TE/00/11/09 and to the accompanying documents TE/00/11/10 and TE/00/11/11—the Executive covering note and the committee covering note.
The regulations that we are considering come into force on 13 May 2000 and the deadline for parliamentary action on them is 30 May. We are required to report on the instrument by 22 May. The Subordinate Legislation Committee considered the instrument on 25 April and sought further information from the Executive. The Executive's response was considered by the Subordinate Legislation Committee on 2 May; extracts from the committee's subsequent report and the Executive's response are attached to the committee covering note on the regulations. No member has indicated that they wish to comment on the instrument, which is less controversial than the one that we have just considered. Do we agree to report that we have no objection to the instrument?
Members indicated agreement.
We have agreed to take the last item on our agenda, which is consideration of our draft report on the general principles of the National Parks (Scotland) Bill, in private. I thank members of the public for attending.
Meeting continued in private until 12:52.