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Part 1 - Introduction

The proposed Directive and timeline

1.1 The European Commission adopted the Thematic Strategy for Soil Protection, including proposals for a Framework Directive for Soils, in September 2006 ¹. The proposed Directive lays down a framework for the protection and sustainable use of soil based on the principles of integration of soil issues into other policies, preservation of soil functions within the context of sustainable use, prevention of threats to soil and mitigation of their effects, as well as restoration of degraded soils to a level of functionality consistent at least with the current and approved future use of the land.

1.2 The key elements of the Directive as proposed by the Commission are:

1. A requirement for central and local Government to consider the impacts that new policies will have on soils whilst they are being developed (Article 3);
2. A duty on all land-users to prevent or minimise harm to soils (Article 4);
3. A requirement to limit or mitigate the effects of soil sealing (the covering of the soil surface with an impermeable material such as concrete) (Article 5);
4. A requirement to reduce the risks relating to soil erosion, organic matter decline, compaction, salinisation, and landslides, by identifying risk areas, and deciding on a programme of measures to address these risks (Articles 6-8);
5. A requirement to prevent soil contamination, compile an inventory of contaminated sites and remediate those sites listed on the inventory (Articles 9-14); and
6. A requirement to raise awareness of soils issues, report to the Commission, and exchange information (Articles 15-17).

1.3 The proposed Directive is now being considered by the Council of Ministers and the European Parliament under the co-decision procedure. A first read-through of the proposal has been undertaken at Council Working Groups and the Portuguese Presidency is aiming to produce a Presidency compromise text over the summer. The European Parliament's Environment Committee has held an initial exchange of views on the dossier and is preparing a report for plenary discussion in the autumn.

Sectors affected

1.4 As drafted the Directive will impact upon a wide range of people and organisations in the UK, including farmers, property developers, the construction industry, individual land owners, and any industry which affects the state of soils. Local Authorities and other enforcement bodies may also have to accept new regulatory responsibilities and approaches in order to implement the proposed Directive, with the risk that this will lead to significant new burdens on them.

Purpose of consultation

1.5 This consultation, issued jointly by Defra, the Scottish Executive and the Welsh Assembly Government, is designed to assist us in developing a robust negotiating position to enable us to engage effectively in negotiations. It is important that our negotiating line is well-informed and based on sound evidence. Hence, we are seeking your views on the scope of the proposed Directive and its approach, as well as on the benefits that the proposed Directive may deliver and the likely costs of implementing it.

1.6 Any references in this paper to "Great Britain" should be taken as referring to England, Scotland and Wales. References to "the Government" should be taken to read the UK Government, the Scottish Executive and the Welsh Assembly Government.

1.7 Although this consultation is not being carried out in Northern Ireland anyone wishing to make any particular comments in relation to Northern Ireland issues should do so to Norman Simmons: norman.simmons@doeni.gov.uk.

1.8 The UK has prepared an initial Regulatory Impact Assessment which sets out our preliminary assessment of the costs and benefits related to the Commission's proposal. We would welcome your views on this to assist our development of a more detailed Impact Assessment.

1.9 The Government also invite you to comment on the implications of the various provisions contained within the proposed Directive, as well as on possible amendments to the proposed Directive which we may need to seek to ensure our interests are looked after.

1.10 Your comments will assist us in developing our position and continue our work to look at costs and benefits of the proposed Directive through Impact Assessment. Ultimately, any agreed Directive will of course reflect positions taken by the 27 Member States, the European Parliament and the Commission. We will of course seek actively to influence negotiations and discussion of the proposed Directive at European level, including lobbying other Member States, the Parliament and the Commission.

1.11 Stakeholder engagement to date has included three separate workshops (held in London on 17 May, Edinburgh on 8 June and Cardiff on 2 July) to obtain preliminary stakeholder views on the proposed Directive; feedback from these events have fed into our developing negotiating line and this consultation ². We will continue to keep stakeholders engaged as we proceed with negotiations.

Background to the proposed Directive

1.12 Member States, agree that action to protect soils is necessary, and have made Community level commitments to this effect. The 6th Environmental Action Programme established a Community objective to protect soils against erosion and pollution. The Sustainable Development Strategy, published in 2001, noted that soil loss and declining fertility are eroding the viability of agricultural land. We recognise the importance of protecting our soil resources as soil is a fundamental and ultimately finite natural resource which has many functions.

1.13 In 2002, the Commission's Communication 'Towards a Thematic Strategy for Soil Protection' [ COM (2002) 179] ³ was accepted by Member States. Following publication of this Communication, several expert Working Groups were established to discuss how best to address soil issues. The outcomes from these discussions were fed into the Commission's 'Thematic Strategy for Soil Protection' [ COM (2006) 231] ⁴, which was adopted by the Commission on 22 September 2006. This included proposals for a Directive "establishing a framework for the protection of soil and amending Directive 2004/35/ EC" [ COM (2006) 232] ⁵.

1.14 If the proposed Soil Framework Directive is adopted, it will be the first soil specific legislation to apply across the whole of Europe. However, there is already a wide range of European legal instruments which, though not specifically designed to address soil issues, provides some protection against the risks of soil degradation and contamination. Relevant Directives/Regulations include:

• the Water Framework Directive which, amongst other things, addresses erosion and agriculture related risks to water; as well as existing soil contamination which detracts from or prejudices "good status" of a water body. These risks will need to be tackled by Member States in order to meet the Directive obligations;
• the Waste Framework Directive, the Air Quality Directives and others which address the prevention of pollution;
• the Strategic Environmental Assessment Directive which requires the integration of environmental considerations into policy making;
• the Environmental Impact Assessment Directive which requires an assessment of the environmental impacts (including on soils) of certain projects to be conducted, and the introduction of a consents regime to give the go ahead to projects as appropriate;
• the Integrated Pollution Prevention Control Directive which provides a licensing system for current activities which have the potential to cause pollution, and include clean-up mechanisms for new contamination;
• the Environmental Liability Directive which includes measures to secure remediation of new environmental damage, and provides a further incentive for the prevention of contamination by operators of potentially polluting activities;
• the Habitats Directive which requires Member States to take measures to maintain or restore natural habitats and wild species at a favourable conservation status; and
• CAP Single Payment Regulations and the Rural Development Regulation - the former require farmers to comply with a baseline set of environmental/agricultural standards in order to receive payments and the latter provides for payments for improvement to agricultural land.

These are explained in more detail in the relevant parts of this document.

1.15 The range of existing legislation raises the issue as to whether this proposed Directive is necessary and if it is what it should cover and the provisions required to achieve the relevant outcomes.

The Commission's Rationale for the proposed Directive

1.16 The Commission's Communication and Impact Assessment ⁶ set out its justification of its proposals. This justification is summarised below. Note that we are not satisfied as to the adequacy of this impact assessment.

1.17 In terms of the state of soils, the Commission's key conclusions are that:

• 115 million hectares, 12% of Europe's total land area, are subject to soil erosion and 42 million hectares are affected by wind erosion.
• 45% of European soils have low organic matter content, principally in Southern Europe but also in areas of France, the UK and Germany.
• 3.5million hectares are potentially contaminated in the EU-25.

1.18 In terms of the overall costs of soil degradation, the Commission estimates this to be up to €38 billion (£26 billion) per annum for the EU-25. This is costed as follows:

• Erosion - €0.7-14 billion (£0.5-9.4 billion) p.a. However this does not take into account the impact of recently introduced EU-wide measures.
• Declining organic matter - €3.4-5.6 billion (£2.3-3.8 billion) p.a.
• Compaction - no monetary figure available; yield reductions of between 13%-35% per hectare.
• Salinisation - this is stated to affect 3.8 million hectares in EU-25 but the issue appears to relate to only a few Member States. The Commission estimates the costs to be €158-321 million (£106-216 million) p.a.
• Landslides - up to €1.2 billion (£0.7 billion) per event.
• Contamination costs - €2.4-17.3 billion (£1.6-11.6 billion) p.a. EU-wide.
• Sealing - no costs are given. Reference is made to the increase in soil surface covered up by impermeable surfaces including a 6% increase in sealed areas between 1990 and 2000 in the EU-15. It refers to risks relating to increased flood risks; disruption of gas, water, electricity fluxes; reduced groundwater recharge; increased water pollution; loss in soil and terrestrial biodiversity.

1.19 The Impact Assessment makes no quantitative assessment of the benefits of the proposed actions in the draft Soil Framework Directive or of many of the costs which those actions themselves would entail. Some costs are included such as:

• Preparing an inventory of contaminated land, which is estimated to be €51 million (£34 million) p.a. for 5 years across the EU (calculated by assuming costs on average of €3100 (£2085) per site) for an initial survey and €241 million (£162 million) p.a. for 25 years for full site surveys. However, the UK anticipates that the actual costs to the EU of populating such an inventory according to the methodology prescribed by the Commission will be significantly higher than this;
• Mapping of risk areas - €2million (£1.4 million) p.a. for 50 years across the EU-25.

1.20 The Commission's Impact Assessment does not include a detailed comparative cost/benefit analysis of the policy options (e.g. the Water Framework Directive, CAP cross-compliance, etc) for achieving reductions in the various forms of soil degradation. In addition, it does not take into account the benefits from recently introduced EU-wide measures or domestic regimes for addressing these issues. The UK has raised its concerns about the inadequacy of this Impact Assessment and the underestimates of particular costs at several EU-level meetings.

1.21 The Commission concludes that the proposed Soil Framework Directive represents the best approach considering a perceived need to balance flexibility of implementation at Member State level with a common and systematic process of identifying issues and risks. It is explicitly stated that costs will be incurred before benefits can be realised, and these are likely to be distributed unevenly between Member States.

1.22 However, there are significant concerns regarding the Commission's justification for specific Community legislation on soils, especially given the broad portfolio of existing EC legislation such as the Integrated Pollution Prevention Control, Water Framework, Strategic Environmental Assessment, and Environmental Liability Directives, plus the Common Agricultural Policy, and at the national level, planning legislation and policy frameworks, which already largely address the threats to soils outlined in the proposals.

UK initial Regulatory Impact Assessment

1.23 Soil is a fundamental and ultimately finite natural resource which has many functions. It is therefore vital that our soil resources are protected. By carrying out an initial Regulatory Impact Assessment ( RIA) we have sought to assess whether the Directive in its current form will assist in achieving this objective and what the costs and benefits of the proposed Directive will be.

1.24 The UK's initial Regulatory Impact Assessment ⁷ sets out the approximate costs and benefits of implementing the Directive as it is currently drafted, and also the costs and benefits associated with other options, including a 'do nothing' option, possible amendments to the current proposals, and the alternative of a non-binding approach based on voluntary uptake by Member States of the recommendations of the Thematic Strategy.

1.25 The UK believes itself to be progressing well in addressing soil issues. We already have an extensive range of measures in place, many of which implement existing EC legislation, which address the threats to the UK's soils, including the threats outlined in the proposed Soil Framework Directive.

1.26 Our preliminary conclusion, having carried out this initial RIA, is that additional EC legislation is most probably not required to enable the UK to take appropriate measures to address risks to its soils. In addition, from a UK point of view, the current proposals risk being overly prescriptive, disproportionate and expensive to implement. Significant changes in the proposed Directive would be needed to deliver positive net benefits at the national level.

1.27 We have particularly strong concerns about the provisions on soil contamination which are prescriptive, especially as to drawing up an inventory, and have serious costs consequences. The UK is also concerned about the impact of the provisions on soil sealing which could affect development at all levels, and, especially through overloading the system, compromise the ability of the planning system to help deliver sustainable development that the country requires.

1.28 A Directive may, however, be of assistance to some other Member States in protecting their soils, especially those facing issues of desertification and salinisation. The Commission's justification for such legislation is based on ensuring a level playing field and addressing transboundary effects. However, the UK's initial view is that the impact on our competitiveness from current levels of protection to be limited and transboundary effects to also be limited. There are however some transboundary issues such as carbon storage in our soils, as well as filtration of our water through soils. We would appreciate your views on the possible benefits of a Directive in terms of dealing with transboundary issues as well as in relation to ensuring a more level playing field (see initial questions at Part 2).

1.29 We will provide a further quantitative analysis of the costs and benefits of the proposed Directive in the next iteration of the Regulatory Impact Assessment, drawing on evidence provided in this consultation.

Outline of the consultation document

1.30 Part 2 of the consultation document sets out some initial questions about the need for a Directive and the principles underlying the present proposals.

1.31 Parts 3-7 contain a series of more detailed questions relating to the individual Chapter of the proposals as tabled. All questions are also outlined in Annex A.

1.32 Not all questions will be of interest to all recipients. We are not expecting everyone to attempt to answer them all. Similarly if there are issues of concern which are not covered either in the general questions or the more specific sections, please feel free to provide additional comments in your response - though it would help if you separate these from answers to the questions as asked.

1.33 To assist in your consideration we have included the text of Key Articles in full in each Chapter with an explanation of the issues which we believe arise.

1.34 Where relevant, our preliminary analysis of the costs and benefits associated with each proposed Article is summarised, and any current European or domestic legislation which is already in place to address related issues is described.

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