(1)

Directive 91/676/EEC lays down rules on the protection of waters against pollution caused by nitrates from agricultural sources.

(2)

Paragraph 2 of Annex III to Directive 91/676/EEC establishes that Member States intending to apply more livestock manure than 170 kg nitrogen per hectare (ha) are to fix amounts so as not to prejudice the achievement of the objectives specified in Article 1 of that Directive. If a Member State allows a different amount under point (b) of the second subparagraph, it shall inform the Commission, which shall examine the justification in accordance with the regulatory procedure referred to in Article 9(2).

(3)

By Decision 2005/880/EC (2), the Commission granted a derogation requested by the Netherlands pursuant to Directive 91/676/EEC for the purpose of allowing the application of grazing livestock manure up to a limit of 250 kg nitrogen per hectare per year on farms with at least 70 % grassland.

(4)

By Decision 2010/65/EU (3), the Commission, amending Decision 2005/880/EC, granted a derogation requested by the Netherlands pursuant to Directive 91/676/EEC for the purpose of allowing the application of grazing livestock manure up to a limit of 250 kg nitrogen per hectare per year on farms with at least 70 % grassland until 31 December 2013.

(5)

By Commission Implementing Decision 2014/291/EU (4), which ceased to apply on 31 December 2017, the Netherlands was granted a derogation pursuant to Directive 91/676/EEC to allow the application of grazing livestock manure on farms with at least 80 % grassland up to a limit of 230 kg nitrogen per hectare per year for farms on southern and central sandy soils and on loess soils, and up to a limit of 250 kg nitrogen per hectare per year for farms on other soils. The derogation concerned 19 564 farms in 2016, corresponding to 47 % of the total net agricultural area in the Netherlands.

(6)

By Commission Implementing Decision (EU) 2018/820 (5), which ceased to apply on 1 January 2020, the Netherlands was granted a derogation pursuant to Directive 91/676/EEC to allow the application of grazing livestock manure on farms with at least 80 % grassland up to a limit of 230 kg nitrogen per hectare per year for farms on southern and central sandy soils and on loess soils, and up to a limit of 250 kg nitrogen per hectare per year for farms on other soils. The derogation concerned 18 818 farms in 2019, corresponding to 44,7 % of the total net agricultural area in the Netherlands.

(7)

By Commission Implementing Decision (EU) 2020/1073 (6), which ceased to apply on 31 December 2021, the Netherlands was granted a derogation to allow the application of grazing livestock manure on farms with at least 80 % grassland up to a limit of 230 kg nitrogen per hectare per year for farms on southern and central sandy soils and on loess soils, and up to a limit of 250 kg nitrogen per hectare per year for farms on other soils. The duration of that Implementing Decision was limited to 2 years in order to enable the Netherlands to fully implement an enhanced enforcement strategy to prevent fraud in the implementation of its manure policy. Furthermore, additional conditions were included to ensure that the amount of livestock did not increase and to reduce ammonia emissions in manure application.

(8)

On 25 February 2022, the Netherlands requested a new derogation pursuant to Directive 91/676/EEC paragraph 2, third subparagraph, of Annex III.

(9)

The Netherlands reported data (7) under Article 10 of Directive 91/676/EEC which showed that for the period 2016 to 2019, approximately 14 % of the groundwater monitoring stations in the Netherlands had mean nitrate concentrations above 50 mg/l, 5 % between 40 and 50 mg/l, and 73 % below 25 mg/l. The data also showed that for the period 2016 to 2019, 99 % of the surface water monitoring stations in the Netherlands had mean nitrate concentrations below 50 mg/l and that 96 % of those monitoring stations had mean nitrate concentrations below 25 mg/l. Nevertheless, in the reporting period 2016 to 2019, 58 % of freshwaters were eutrophic and 10 % could become eutrophic if no measures were taken.

(10)

This data as published in the Report on Article 10 of Directive 91/676/EEC (8) also showed significant variations between Dutch provinces and that pollution hotspots for nitrate concentrations in groundwater and eutrophication are found in a number of Dutch provinces. In Limburg, 36 % of groundwater stations showed mean nitrate concentrations above 50 mg/l and 22 % showed negative trends, while 74 % of surface waters were eutrophic and 16 % at risk of becoming eutrophic if no measures were taken. In Noord-Brabant, 26 % of groundwater stations showed mean nitrate concentrations above 50 mg/l and 20 % showed negative trends, while 68 % of surface waters were eutrophic and 7 % at risk of becoming eutrophic if no measures were taken. In Zeeland, 14 % of groundwater stations showed mean nitrate concentrations above 50 mg/l and 47 % showed negative trends, while 80 % of surface waters were eutrophic and 11 % at risk of becoming eutrophic if no measures were taken. In Zuid-Holland, 54 % of surface waters were eutrophic and 17 % at risk of becoming eutrophic if no measures were taken. In Noord-Holland, 61 % of surface waters were eutrophic and 19 % at risk of becoming eutrophic if no measures were taken. In Utrecht, 24 % of groundwater stations showed negative trends in nitrate concentrations, while 43 % of surface waters were eutrophic and 10 % at risk of becoming eutrophic if no measures were taken. In Gelderland, 10 % of groundwater stations showed mean nitrate concentrations above 50 mg/l and 15 % showed negative trends. In Overijssel, 18 % of groundwater stations showed mean nitrate concentrations above 50 mg/l and 19 % showed negative trends, while 67 % of surface waters were eutrophic and 4 % at risk of becoming eutrophic if no measures were taken. In Drenthe, 15 % of groundwater stations showed mean nitrate concentrations above 50 mg/l, while 65 % of surface waters were eutrophic and 9 % at risk of becoming eutrophic if no measures were taken. In Friesland, 23 % of groundwater stations showed negative trends in nitrate concentrations, while, 85 % of surface waters were eutrophic. In Groningen, 52 % of surface waters were eutrophic and 11 % at risk of becoming eutrophic if no measures were taken. In Flevoland, 33 % of surface waters were eutrophic.

(11)

The data reported by the Netherlands in 2020 and 2021 in the context of the reports under Implementing Decision (EU) 2020/1073 showed increases in nitrate concentrations in groundwater in areas with loess, sandy and clay soils. In the south and the east of the sandy soil region, the average nitrate concentration in the upper metre of the groundwater was 67 mg/l in 2021. This exceeds the Union limit value of 50 mg/l. Since 2017, the nitrate concentration has doubled in this part of the sandy soil region. The average concentration in the north of the sandy soil region remained lower than the Union limit value, but increased to 37 mg/l in 2021. In the loess soil region, the average concentration decreased slightly to 57 mg/l in 2020, but is still above the Union limit value. In the clay soil region, nitrate concentrations consistently remained below the limit value, however they have increased. In the peat soil region, the lowest concentrations were measured at an average concentration of 14 mg/lin 2021. Data also showed that root zone water from farms in the derogation monitoring network often exceeded the nitrate concentration norms even if the mean value remained below 50 mg/l.

(12)

The Netherlands applies, in conformity with Article 3(5) of Directive 91/676/EEC, an action programme throughout its whole territory. On 26 December 2021, the Netherlands adopted a new action programme for the period 2022-2025 (9) (the 7th Nitrates Action Programme), which includes additional measures to reduce nutrients (nitrogen and phosphorus) losses to the environment and is based on a regional differentiated approach depending on the level of nutrients pollution and on the soil type. However, the environment impact assessment, performed in preparation of the 7th Nitrates Action Programme by the scientific advisory commission to the Dutch authorities (Commissie van Deskundigen Meststoffenwet), found that the potential effects of the action programme would not be sufficient to achieve the water quality objectives. On 25 February 2022, the Netherlands adopted an Addendum (10) to the 7th Nitrates Action Programme referring to the National Programme for Rural Areas (11) which sets out an integral approach to nature, water and climate, including nitrogen emissions, to meet Union environmental and climate requirements. Through the Addendum the Dutch Government seeks to translate its ambitions into concrete measures aiming at achieving the water quality targets for nutrients from agricultural sources.

(13)

The 2022-2025 7th Nitrates Action Programme and its Addendum set efforts needed per region to reach water quality objectives regarding nitrates and phosphorus from agricultural sources as specified by Directive 91/676/EEC and the Dutch river basin management plan adopted in the context of Directive 2000/60/EC of the European Parliament and of the Council (12). For nitrates concentrations in groundwater, the Zand Noord, Zand Oost, Westelijk Noord-Brabant, Centraal zeeklei, Zuidwestelijk zeekleigebied, Westelijk zandgebied regions need some effort to reach the targets, while the Gelderse Vallei, Oostelijk Noord-Brabant en Limburg Zand, Lössgebied regions need a significant effort to reach them. For phosphorus concentrations in surface water (eutrophication), the Zand Noord, Zand Oost, Westelijk Noord-Brabant, Oostelijk Noord-Brabant en Limburg Zand, Noordelijk zeekleigebied, Centraal zeeklei Zuidwestelijk zeekleigebied regions need some effort to reach the targets, while the Gelderse Vallei, Lössgebied, Westelijk Zeeklei, Westelijk veengebied, Westelijk zandgebied regions need a significant effort to reach them. This is consistent with the data reported by the Netherlands under Article 10 of Directive 91/676/EEC.

(14)

The Netherlands will adopt a new designation of areas polluted by nitrates and phosphorus from agricultural sources (nutrients polluted areas), which should include all catchment areas for monitoring points for groundwater and surface water exhibiting mean nitrates pollution or occasional nitrates pollution events, at risk of being polluted and increasing trends, as well as monitoring points exhibiting eutrophication or at risk of becoming eutrophic. The designation should also take into account relevant case-law of the Court of Justice of the European Union, in particular, the rulings in cases C-221/03 (13) and C-543/16 (14). If no new designation is in place on 1 January 2024, all areas where some or significant efforts are required will be designated as nutrients polluted areas.

(15)

This derogation request should be considered within the broader EU policy context regarding nutrient management issues, in particular, the objectives and targets of Directives 2000/60/EC, 2006/118/EC (15) and 2008/56/EC (16) of the European Parliament and of the Council, the increasing ambition of Effort Sharing Regulation (17) and the CAP Strategic Plan for the Netherlands (18), as well as the objectives of the European Green Deal concerning nutrient pollution. The European Green Deal sets objectives for the Union to reduce nutrients losses, and to limit non-CO2 greenhouse gases, namely methane and nitrous oxide, of which fertilisation and livestock are a major source. In particular, the Union has committed, in the Farm to Fork Strategy (19) and the Zero Pollution Action Plan (20), to reducing nutrients losses by 50 % in 2030, leading to a reduction of 20 % in fertilisers, and preserving soil fertility, and reducing by 25 % the EU ecosystems areas, measured as areas above ‘critical loads’ of nitrogen deposition, where air pollution threatens biodiversity.

(16)

In the ‘initial proposal for the National Programme for Rural Areas’ of 10 June 2022 (21), the Dutch Government notes ‘In peatland areas, Natura 2000 areas, groundwater protection areas, vulnerable watercourses, and buffer zones around Natura 2000 sites are the greatest challenges. In those areas, farmers will have more business restrictions or less development opportunities. Extensification of agriculture is then the most appropriate route’. There is also a ‘commitment to create transitional areas around Natura 2000 sites’. ‘Transitional areas (buffer zones) around Natura 2000 areas are areas adjacent to Natura 2000 sites which contribute to system restoration to maintain and restore the biodiversity in the Natura 2000 site concerned’.

(17)

The Commission has examined the Dutch request for derogation taking into account the requirements and objectives of Directive 91/676/EEC and the experience from the previous derogation decisions and in the light of the 7th Nitrates Action Programme and its Addendum. It has also examined the trends in water quality and taken into account the European Green Deal objectives. Based on the above, the Commission considers it is necessary to ensure a predictable transition derogation period of maximum 4 years for grassland farmers until the planned reforms as set out in the Addendum are fully incorporated in Dutch law and to accompany the gradual implementation of the new reforms. The Commission further considers that achieving the objectives of Directive 91/676/EEC requires strict additional conditions to be met by the Netherlands, in particular, but not only, in the nutrients polluted areas. The requested derogation should support the reform path defined in the Addendum and in the National Programme for Rural Areas.

(18)

The derogation granted by this Decision is without prejudice to the Netherlands’ obligations to apply Council Directive 92/43/EEC (22) and the ruling of the Court of Justice of the European Union in Case C-293/17 (23), in particular on the interpretation of Article 6(3) of that Directive; and to apply Directive 2000/60/EC and Directive 2008/56/EC and does not exclude that additional measures may be needed to fulfil obligations derived from these Directives.

(19)

It is essential to ensure that authorising additional amounts of manure per hectare per year does not delay or put at risk the requirements of other Union legislation for which nitrogen and phosphorous pollution could be an obstacle in achieving its objectives. Therefore, national authorisations for derogations to individual farmers should not be allowed in groundwater protection areas and in Natura 2000 areas, or within the buffer zones around Natura 2000 areas as defined in the Dutch National Programme for Rural Areas, and the size of which will be specified in 2023.

(20)

The livestock density in the Netherlands remains very high; in 2016, it was the highest in the Union, nearly five times higher than the Union average. According to the data provided by the Netherlands, in the period 2019 to 2021 the total livestock decreased by 2,5 %, whereas the number of cattle increased.

(21)

The overall manure production of 2020 should not be exceeded. This ceiling of maximum manure production will be embedded in national legislation on 1 January 2024. Moreover, the implementation of the reforms planned under the National Programme for Rural Areas should lead to a gradual reduction of the manure production by the end of the validity of the current Decision.

(22)

In nutrients polluted areas in particular, it is necessary to complement the 7th Nitrates Action Programme and its Addendum with specific measures recognised for their effectiveness in sustainable nutrients management at farm level and in reducing nutrients losses in groundwater and freshwater.

(23)

The Netherlands established an enhanced enforcement strategy to step up the prevention of fraud in the implementation of its manure policy. That strategy was implemented in the years 2020-2021, but suffered some delays also due to the COVID pandemic. The implementation of the strategy along its main axes of action needs to be pursued effectively and extended to other regions where the independent assessment shows a significant risk of deliberate non-compliance with the rules on manure management. The transition period for the planned agricultural reforms could also lead to increased fraud, and therefore the controls should be intensified.

(24)

The authorisations to individual farmers are subject to certain conditions that are aimed at ensuring fertilisation at farm level based on crop needs and at preventing nitrogen and phosphate losses to water. The measures laid down in this Decision should be additional to the measures already being applied through the 7th Nitrates Action Programme and its Addendum.

(25)

The Netherlands is required to implement all measures set in Annex III to Directive (EU) 2016/2284 of the European Parliament and of the Council (24) for the reduction of ammonia emissions. The report on the impact of Directive 91/676/EEC on gaseous nitrogen emissions (25) concluded that in some regions with high livestock densities, the derogation may result in higher gaseous emissions. Therefore, appropriate measures should be taken to reduce ammonia emissions, including low emission spreading techniques, where necessary in combination with a maximum temperature at which manure can be applied and a strict obligation of immediate incorporation into the soil of manure/slurry when applied on fields.

(26)

The conditions laid down in Article 4 of this Decision are considered as the version of the Statutory Management Requirements established in national law in the meaning of Article 12 and 13 of Regulation (EU) 2021/2115 of the European Parliament and of the Council (26), and the conditions laid down in Articles 5 to 9 of this Decision are considered for the entities benefiting from derogations as the version of the Statutory Management Requirements established in national law in the meaning of Article 12 and 13 of Regulation (EU) 2021/2115.

(27)

The Netherlands must comply with the objectives on greenhouse gas emissions and removals from land use, land use change and forestry in the 2030 climate and energy framework. A conversion of land use from grassland to arable land would induce an increase of emissions of soil carbon and hamper compliance with Article 4 of Regulation (EU) 2018/841 of the European Parliament and of the Council (27).

(28)

Directive 2007/2/EC of the European Parliament and of the Council (28) lays down general rules aimed at establishing the Infrastructure for Spatial Information in the Union for the purposes of environmental policies of the Union and policies or activities of the Union which may have an impact on the environment. Where applicable, the spatial information collected in the context of this Decision should be in line with the provisions set out in that Directive. Furthermore, in order to reduce the administrative burden and enhance data coherence, the Netherlands, when collecting the necessary data under this Decision, should, where appropriate, make use of the information generated under the integrated administration and control system set up by the Netherlands pursuant to Article 67(1) of Regulation (EU) No 1306/2013 of the European Parliament and of the Council (29).

(29)

This Decision will cease to apply on 31 December 2025.

(30)

The measures provided for in this Decision are in accordance with the opinion of the Nitrates Committee set up pursuant to Article 9 of Directive 91/676/EEC,

(1)

‘grassland farm’ means any holding where at least 80 % of the acreage available for manure application is grass;

(2)

‘grazing livestock’ means cattle (with the exclusion of veal calves), sheep, goats, horses, donkeys, deer and water buffalo;

(3)

‘farmland’ means the acreage owned, rented or managed by the farmer under a written individual contract and on which the farmer has a direct management responsibility;

(4)

‘grassland’ means permanent grassland or temporary grassland which lies less than 5 years;

(5)

‘fertilisation plan’ means a calculation of the planned use and availability of nutrients;

(6)

‘fertilisation account’ means the nutrient balance based on the real use and uptake of nutrients;

(7)

‘fertilisation register’ means an electronic system by which farmers report on real nutrient uses and manure management;

(8)

‘southern and central sandy soils’ means soils indicated as southern sandy soils and central sandy soils under the Dutch legislation Article 1 paragraph 1 of the Implementing Regulation on Fertilisers Act (30);

(9)

‘loess soils’ means soils indicated as loess soils under the Dutch legislation Article 1 paragraph 1 of the Implementing Regulation on Fertilisers Act;

(10)

‘nutrients’ refer to nitrogen and phosphate.

1.

The Netherlands shall develop a new designation and a new map of areas polluted by nitrates and phosphorous from agricultural sources (nutrients polluted areas) by 1 January 2024 at the latest, which includes all catchment areas for monitoring points for groundwater and surface water exhibiting mean nitrates pollution or occasional nitrates pollution events, at risk of being polluted and increasing trends, as well as monitoring points exhibiting eutrophication or at risk of becoming eutrophic.

As a transitional measure and until the new designation is in place at the latest by 1 January 2024, nutrients polluted areas will cover southern and central sandy soils and loess soils areas, as well as, from 1 January 2023, the catchment areas defined from regional waterbodies and qualified as nutrients inadequate areas (bad, poor and moderate) in the national analysis of water quality (2020) (31) by the Netherlands Environmental Assessment Agency (PBL).

As of 1 January 2024, a final designation and map of nutrients polluted areas shall be in place and shall include at least the areas designated in 2023 as well as any other additional area where the contribution from agriculture to the nutrients pollution is significant i.e. more than 19 % of the total nutrients load.

Should the final designation and map of nutrients polluted areas not be in place on 1 January 2024, the designation provided in the 7th Nitrates Action Programme and its Addendum shall be used, which includes all areas where some or significant efforts are required to reach water quality objectives regarding nitrates and phosphorous concentrations as specified by Directive 91/676/EEC and the Dutch river basin management plan adopted in the context of Directive 2000/60/EC.

2.

The Netherlands shall monitor the amount of manure produced and ensure that manure production at national level, both in terms of nitrogen and phosphate, does not exceed 489,4 million kg of nitrogen and 150,7 million kg of phosphate (amount produced in 2020), and that, as a result of the reforms set out in the Addendum being implemented, the amount of manure produced gradually decreases, and in 2025 does not exceed 440 million kg of nitrogen and 135 million kg of phosphate.

3.

As of 1 January 2023, the Netherlands shall not grant authorisations for derogations as referred in Article 5 of this Decision within Natura 2000 sites established in accordance with Directive 2009/147/EC of the European Parliament and of the Council (32) and Directive 92/43/EEC, and, from 1 January 2024, in buffer zones near Natura 2000 sites as specified by the National Programme for Rural Areas, for which the critical nitrogen load for nitrogen deposition is exceeded.

4.

As of 1 January 2023, the Netherlands shall not grant authorisations for derogations as referred in Article 5 of this Decision in groundwater protection areas. In areas where the groundwater is polluted by nitrates, a package of mandatory measures to reduce nutrient loads shall be applied in the groundwater protection areas by 1 January 2024.

5.

The Netherlands shall put in place the following measures:

6.

The Netherlands shall pursue the implementation of the enhanced enforcement strategy, building on the experience pursuant to the implementation of Article 4(3) of Implementing Decision (EU) 2020/1073. The enhanced enforcement strategy shall, as a minimum, include the following elements: