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Buan Ionadaiocht Permanent Representation
na hFireann of Ireland

to the Buropean Union

 

chuig an Aontas Eorpach

8 May 2009

Ms Catherine Day
Secretary-General
European Commission
Rue de la Loi 200

B -1049 Brussels
Belgium

European Court of Justice Judgment in Case C-282/02, Commission-v-Ireland
Infringements References I 994/4274, 1990/5220, 1 990/0961, 1994/4077

Dear Secretary-General

I have been asked by my authorities to refer again to the Commission’s Reasoned Opinion dated
21 March 2007 (reference SG-Greffe (2007) D/201419) with regard to the measures taken by
Ireland to comply with the Judgment in Case C-282/02 concerning Ireland’s Implementation of
Council Directive 76/464/EEC on pollution caused by certain dangerous substances discharged
into the aquatic environment of the Community (now Directive 2006/1/EC of the European
Parliament and ofthe Council).

Agricultural Practice for Protection of Waters) Regulations 2009 (S.I. No. 101 of 2009) were
signed into law on 26 March 2009 and came into effect on 31 March 2009.

These consolidated Regulations provide, inter alia, for better farmyard management and
strengthened enforcement provisions in order to comply with the Judgment of the Court as
regards farmyard installations.

In accordance with the revised legislation, the Environmental Protection Agency has issued a

direction to local aufhorities on the implementation of the Regulations. Copies of these
Regulations and the direction are enclosed.

part ofa forthcoming Programming Document which will be finalised and will be
formally submitted to the Commission shortly.

Yours sincerely

Deputy Permanent Representative

cc Mr
DG Environment

REPRESENTATION PERMANENTE DE LIRLANDE AUPRES DE L’UNION EUROPEENNE
Rue Froissart 89-93, 1040 Bruxelles Tel. 02 2308580 Fax 02 230 32 03

STATUTORY INSTRUMENTS

S.I. No. 101 of 2009

EUROPEAN COMMUNITIES (GOOD AGRICULTURAL PRACTICE
FOR PROTECTION OF WATERS) REGULATIONS 2009

(Prn. A9/0420)

[101] 3
PART 4

PREVENTION OF WATER POLLUTION FROM FERTILISERS AND
CERTAIN ACTIVITIES

17. Distances from a water body and other issues
18. Requirements as to manner of application of fertilisers, soiled water etc
19. Periods when application of fertilisers is prohibited
20. Limits on the amount of livestock manure to be applied
21. Ploughing and the use of non-selective herbicides
PART5
GENERAL
22. General duty of occupier
23. Keeping of records by occupier
24. False or misleading information
25. Authorised person
26. Offences and related matters
PART 6
FUNCTIONS OF PUBLIC AUTHORITIES
27. Minister for Agriculture, Fisheries and Food
28. Making and review of action programme by the Minister
29. Agency
30. Local authorities
31. Compliance with Data Protection Acts
32. Certificate in relation to nutrient content of fertiliser
33. Exemption for exceptional circumstances for research

34. Transitional provisions

[101] 5
S.I. No. 101 of 2009

EUROPEAN COMMUNITIES (GOOD AGRICULTURAL PRACTICE
FOR PROTECTION OF WATERS) REGULATIONS 2009

WHEREAS, I, JOHN GORMLEY, Minister for the Environment, Heritage
and Local Government, having regard to section 3(3) of the European Com-
munities Act 1972 (as inserted by section 2 of the European Communities Act
2007) (hereinafter referred to as the Act of 1972), consider it necessary for the
purpose of giving full effect to Directive 75/442/EEC of 15 July 1975', Directive
80/68/EEC of 17 December 1979, Directive 91/676/EEC of 12 December 1991?,
Directive 2000/60/EC of 23 October 2000°, Directive 2003/35/EC of 26 May
2003°, Directive 2006/11/EC of 15 February 2006° and Directive 2006/118/EC of
12 December 2006’to make provision for offences under the following Regu-
lations to be prosecuted on indictment:

AND WHEREAS, I consider that it is necessary, having further regard to
section 3(3) of the Act of 1972, and for the purpose of ensuring that penalties
in respect of an offence prosecuted in that manner under the following Regu-
lations are effective, proportionate and have a deterrent effect, having regard
to the acts or omissions of which the offence consists, to make such provision
in the following Regulations:

AND WHEREAS, the Commission of the European Communities has, by
decision of 22 October 2007, granted a derogation requested by Ireland pursuant
to Council Directive 91/676/EEC of 12 December 1991;

NOW THEREFORE, I, JOHN GORMLEY, Minister for the Environment,
Heritage and Local Government, in exercise of the powers conferred on me by
section 3 of the European Communities Act 1972 (No, 27 of 1972) as amended
by the European Communities Act 2007 (No. 18 of 2007) and for the purpose
of giving effect to Directive 75/442/EEC of 15 July 1975', Directive 80/68/EEC
of 17 December 197%, Directive 91/676/BEC of 12 December 1991°, Directive
2000/60/EC of 23 October 2000', Directive 2003/3S/EC of 26 May 2003),
Directive 2006/11/EEC of 15 February 2006° and Directive 2006/118/EC of 12
December 2006’ hereby make the following Regulations:

'0.J. No. L 194/39, 25 July 1975.

°O.J. No. L 20/43, 26 January 1980.
"O.J. No L 375/1, 31 December 1991.
‘O.J. No. L 327/1, 22 December 2000.
°0.J. No. L 156/17, 25 June 2003,

‘0.J. No. L 64/52, 4 March 2006.

’0.J. No. L 372/19, 27 December 2006.

Notice of the making of this Statutory Instrument was published in
“Iris Oifigiuil” of 31st March, 2009.

[101] 7

“dry matter” for the purposes of sub-article (2)(b)(ii) means a test for total
solids done in accordance with method 2540B, Standard Methods for the Exam-
ination of Water and Wastewater, American Public Health Association, 21st
Edition, 2005, or any update of that method;

“farmyard manure” means a mixture of bedding material and animal excreta in
solid form arising from the housing of cattle, sheep and other livestock exclud-
ing poultry;

“fertiliser” means any substance containing nitrogen or phosphorus or a nitro-
gen compound or phosphorus compound utilised on land to enhance growth of
vegetation and may include livestock manure, the residues from fish farms and
sewage sludge;

“groundwater” means all water that is below the surface of the ground in the
saturation zone and in direct contact with the ground or subsoil;

“holding” means an agricultural production unit and, in relation to an occupier,
means all the agricultural production units managed by that occupier;

“livestock” means all animals kept for use or profit (including cattle, horses,
pigs, poultry, sheep and any creature kept for the production of food, wool,
skins or fur);

“livestock manure” means waste products excreted by livestock or a mixture of
litter and waste products excreted by livestock, even in processed form;

“local authority” means a city council or county council within the meaning of
the Local Government Act, 2001 (No. 37 of 2001);

“the Minister” means the Minister for the Environment, Heritage and Local
Government;

“net area”, in relation to a holding and the grassland stocking rate, means the
gross area of {he holding or the grassland as appropriate excluding areas under
farm roads, paths, buildings, farmyards, woods, dense scrub, rivers, streams,
ponds, lakes, sandpits, quarries, expanses of bare rock, areas of bogland not
grazed, areas fenced off and not used for production, inaccessible areas and
areas of forestry (including Christmas trees), or required to be totally destocked
under a Commonage Framework Plan;

“the Nitrates Directive” means Council Directive 91/676/EEC of 12 December
1991 concerning the protection of waters against pollution caused by nitrates
from agricultural sources;

“occupier”, in relation to a holding, includes the owner, a lessee, any person
entitled to occupy the holding or any other person having for the time being
control of the holding;

“organic fertiliser” means any fertiliser other than that manufactured by an
industrial process and includes livestock manure, dungstead manure, farmyard

[101] 9
and cognate words shall be construed accordingly.

(2) (a) In these Regulations “soiled water” includes, subject to this sub-
article, water from concreted areas, hard standing areas, holding areas
for livestock and other farmyard areas where such water is contami-
nated by contact with any of the following substances—

(i) livestock faeces or urine or silage effluent,
(ii) chemical fertilisers,

(ii) washings such as vegetable washings, milking parlour washings or
washings from mushroom houses,

(iv) water used in washing farm equipment.

(b) In these Regulations, “soiled water” does not include any liquid where
such liquid has either—

(i) a biochemical oxygen demand exceeding 2,500 mg per litre, or
(ii) a dry matter content exceeding 1% (10 g/L).

(c) For the purposes of these Regulations, soiled water which is stored
together with slurry or which becomes mixed with slurry is deemed
to be slurry.

(3) In these Regulations a reference to:—

(a) an Article, Part or Schedule which is not otherwise identified is a
reference to an Article, Part or Schedule of these Regulations,

(b) a sub-article or paragraph which is not otherwise identified is a refer-
ence to a sub-article or paragraph of the provision in which the refer-
ence occurs, and

(c) a period between a specified day in a month and a specified day in
another month means the period commencing on the first-mentioned
day in any year and ending on the second-mentioned day which first
occurs after the first-mentioned day.

(4) In these Regulations a footnote to a table in Schedule 2 shall be deemed
to form part of the table.

PART 2
FARMYARD MANAGEMENT

Minimisation of soiled water

4. (1) An occupier of a holding shall take all such reasonable steps as are
necessary for the purposes of minimising the amount of soiled water produced
on the holding.

[101] 11

General obligations as to capacity of storage facilities

7. (1) The capacity of storage facilities for livestock manure and other organic
fertilisers, soiled water and effluents from dungsteads, farmyard manure pits or
silage pits on a holding shall be adequate to provide for the storage of all such
substances as are likely to require storage on the holding for such period as may
be necessary as to ensure compliance with these Regulations and the avoidance
of water pollution.

(2) For the purposes of sub-article (1) an occupier shall have due regard to
the storage capacity likely to be required during periods of adverse weather
conditions when, due to extended periods of wet weather, frozen ground or
otherwise, the application to land of livestock manure or soiled water is
precluded.

(3) For the purposes of Articles 7 to 13, the capacity of storage facilities on a
holding shall be disregarded insofar as the occupier does not have exclusive use
of those facilities.

(4) For the purposes of Articles 9 to 13 the capacity of facilities required in
accordance with these Regulations for the storage of manure from livestock of
the type specified in Tables 1, 2 or 3 of Schedule 2 shall be determined by
reference to the criteria set out in the relevant table and the rainfall criteria set
out in Table 4 of that schedule and shall include capacity for the storage for
such period as may be necessary for compliance with these Regulations of rain-
water, soiled water or other extraneous water which enters or is likely to enter
the facilities.

Capacity of storage facilities for effluents and soiled water
8. Without prejudice to the generality of Article 7, the capacity of facilities
for the storage on a holding of—

(a) effluent produced by ensiled forage and other crops shall equal or
exceed the capacity specified in Table 5 of Schedule 2, and

(b) soiled water shall equal or exceed the capacity required to store all
soiled water likely to arise on the holding during a period of 10 days.

Capacity of storage facilities for pig manure

9. (1) Without prejudice to the generality of Article 7, the capacity of facili-
ties for the storage on a holding of livestock manure produced by pigs shall,
subject to sub-article (2) and Article 13, equal or exceed the capacity required
to store all such livestock manure produced on the holding during a period of
26 weeks.

(2) The period specified in Schedule 3 shall, in substitution for that prescribed
by sub-article (1), apply in relation to livestock manure produced by pigs on a
holding where all the following conditions are met—

(a) the number of pigs on the holding does not at any time exceed one
hundred pigs, and

[101] 13

1996 to 2003 or the Environmental Protection Agency Acts 1992 and
2003 to undertake the collection, recovery or disposal of the manure.

(2) Subject to sub-article (3), the capacity of facilities for the storage of live-
stock manure may be less than the capacity specified in Article 11 or 12, as
appropriate, in relation to—

(a) deer, goats or sheep which are out-wintered at a grassland stocking
rate which does not exceed 130 kg nitrogen at any time during the
period specified in Schedule 4 in relation to the application of organic
fertiliser other than farmyard manure, or

(b) livestock (other than dairy cows, deer, goats or sheep) which are out-
wintered at a grassland stocking rate which does not exceed 85 kg
nitrogen at any time during the period specified in Schedule 4 in
relation to the application of organic fertiliser other than farmyard
manure,

(3) Sub-article (2) shall apply only in relation to a holding where all the fol-
lowing conditions are met—

(a) all the lands used for out-wintering of the livestock are comprised in
the holding,

(b) the out-wintered livestock have free access at all times to the
required lands,

(c) the amount of manure produced on the holding does not exceed an
amount containing 140kg of nitrogen per hectare per annum,

(d) severe damage to the surface of the land by poaching does not
occur, and

(e) the reduction in storage capacity is proportionate to the extent of out-
wintered livestock on the holding.

(4) In this article, a grassland stocking rate of 130 kg or 85 kg of nitrogen, as
the case may be, means the stocking of grassland on a holding at any time by
such numbers and types of livestock as would in the course of a year excrete
waste products containing 130 kg or 85 kg of nitrogen, as the case may be, per
hectare of the grassland when calculated in accordance with the nutrient
excretion rates for livestock specified in Table 6 of Schedule 2.

Operative date

14. (1) Inthe case of the storage capacity requirements prescribed by Articles
8, 9, 10, 11 or 12, the relevant article and Article 7 shall be in effect on the
commencement of these Regulations.

[101] 15

for the purposes of paragraph (a) except in a case where that soil test
indicates the soil to be at phosphorus index 4.

(3) Without prejudice to the generality of sub-article (1) and subject to sub-
article (4), the amount of available nitrogen or available phosphorus applied to
promote the growth of a crop specified in Table 12, 13, 14, 15, 16, 17,18, 19, 20
or 21 of Schedule 2 shall not exceed the amount specified in the table in relation
to that crop having regard to the relevant nitrogen index or phosphorus index,
as the case may be, for the soil on which the crops are to be grown.

(4) In the case of a holding on which grazing livestock are held, the amount
of available phosphorus supplied to the holding by the concentrated feedstuff
fed to such livestock shall be deemed to be 0,5 kg phosphorus in respect of each
100 kg of such concentrated feedstuff.

(5) (a) In the case of a holding on which grazing livestock are held, the
amount of available nitrogen and available phosphorus supplied to
the holding by manure from such livestock shall (save insofar as such
manure is exported from the holding) be deemed to be the relevant
proportion of the amount of available nitrogen and available phos-
phorus contained in the total manure produced by such livestock.

(b) In paragraph (a), the “relevant proportion” means the proportion of
a year as is represented by the storage period specified in Schedule 3
in relation to the holding.

PART4

PREVENTION OF WATER POLLUTION FROM FERTILISERS AND
CERTAIN ACTIVITIES

Distances from a water body and other issues
17. (1) Chemical fertiliser shall not be applied to land within 1.5 metres of a
surface watercourse,

(2) Organic fertiliser or soiled water shall not be applied to land within—

(a) subject to sub-article (5), 200m of the abstraction point of any surface
watercourse, borehole, spring or well used for the abstraction of water
for human consumption in a water scheme supplying 100m or more
of water per day or serving 500 or more persons,

(b) subject to sub-article (5), 100m of the abstraction point (other than an
abstraction point specified at paragraph (a)) of any surface water-
course, borehole, spring or well used for the abstraction of water for
human consumption in a water scheme supplying 10m’ or more of
water per day or serving 50 or more persons,

(c) subject to sub-article (5), 25m of any borehole, spring or well used for
the abstraction of water for human consumption other than a bore-
hole, spring or well specified at paragraph (a) or (b),

[101] 17
(b) the slope of the land,

(c) the natural geological and hydrogeological attributes of the area
including the nature and depth of any overlying soil and subsoil and
its effectiveness in preventing or reducing the entry of harmful sub-
stances to water, and

(d) where relevant, the technical specifications set out in the document
“Groundwater Protection Schemes” (and the relevant groundwater
protection responses) published in 1999 (ISBN 1-899702-22-9) or any
subsequent published amendment of that document.

(7) Where a local authority specifies an alternative distance in accordance
with sub-article (5) the authority shall, as soon as may be—

(a) notify the affected landowners and the Department of Agriculture,
Fisheries and Food of the distance so specified,

(b) send to the Agency a summary of the report on the prior investi-
gations carried out for the purpose and the reasons for specifying the
alternative distance, and

(c) make an entry in the register maintained in accordance with Article
30(6).

(8) The distance of 5m specified in sub-article (2)(f) may be reduced to 3m
where one of the following conditions is met—

(a) the watercourse is an open drain, or

(b) the area of land adjacent to the watercourse is a narrow parcel of land
not exceeding one hectare in area and not more than 50m in width.

(9) Notwithstanding sub-articles (2)(f) and (8), organic fertiliser or soiled
water shall not be applied to land within 10m of a surface watercourse where
the land has an average incline greater than 10% towards the watercourse.

Requirements as 10 manner of application of fertilisers, soiled water etc

18. (1) Livestock manure and other organic fertilisers, effluents and soiled
water shall be applied to land in as accurate and uniform a manner as is practi-
cally possible.

(2) Fertilisers or soiled water shall not be applied to land in any of the follow-
ing circumstances—

(a) the land is waterlogged;
(b) the land is flooded or likely to flood;
(c) the land is snow-covered or frozen:

(d) heavy rain is forecast within 48 hours, or