Suan lonadaiocht Permanent Representation

no hYireann of Ireland

 

shvig an Aontas Dorpach to the Buropean Union

  

ERTL ANEELIU Ernnen.

Bu25
04. 09, 2008

SG-R-2

S@/CAC(2009) Ar

 
   
  

„L September, 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 1994/4274, 1990/5220, 1990/0961, 1994/4077

Dear Secretary-General,

| have been asked by my authorities to refer to the Commission’s Reasoned Opinion
dated 21 March 2007 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/EC on pollution caused by certain dangerous substances discharged into the
aquatic environment of the Community (now Directive 2006/11/EC of the European
Parliament and of the Council).

| have been asked by my authorities to advise the Commission that the European
Communities Environmental Objectives (Freshwater Pearl Mussel) Regulations 2009
(S.. No. 296 of 2009) were signed into law on 27 July 2009 and came into effect on that
date. A copy ofthese Regulations is enclosed.

The purpose of these Regulations is to support the achievement of favourable
conservation status for the freshwater mussel and they are a key response to the
Judgment ofthe Court. To that end the Regulations:

» set environmental quality objectives for the habitats of the freshwater pearl
mussel populations named in the First Schedule to the Regulations that are
within the boundaries of a site notified in a candidate list of European sites, or
designated as a Special Area of Conservation, under the European Communities
(Natural Habitats) Regulations 1997 (S.l. No. 94 of 1997)

° require the production of sub-basin management plans with programmes of
measures to achieve these objectives

« set outthe duties of public authorities in respect of the sub-basin management
plans and programmes of measures.

SUNSENETATTOARN BRDMANDBAUTE ME TIIDTAAIND Atınnda INT reIrmTIAAN PMırnanstmmın

These Regulations build on the provisions made in the European Communities
Environmental Objectives (Surface Waters) Regulations 2009 (S.l. No. 272 of 2009) and
give further effect to Directive 32/43/EEC of the European Parliament and of the Council
of 21 May 1993 on the conservation of natural habitats and of wild fauna and flora and
Directive 2000/60/EC establishing a framework for Community action in the field of water

policy.

My authorities have asked that I draw attention to the fact that substantial work has
already been carried out on the preparation of sub-basin management plans for SAC
rivers which support important populations of the mussel.

There are two remaining responses which require to be put in place so as to provide for
full compliance with the Commission's Reasoned Opinion and the judgment in Case
C-282/02. These are the draft European Communities (Control of Dangerous
Substances from Offshore Installations) Regulations 2009 and the Programming
Document in relation to the various sets of Regulations made in response to the
judgment. In this regard my authorities have asked that | advise the Commission that
both of these responses will be finalised in the coming two weeks.

Yours sincerely,

Environment Attache.

cc
DG Environment

STATUTORY INSTRUMENTS.

S.L. No. 296 of 2009

THE EUROPEAN COMMUNITIES ENVIRONMENTAL OBJECTIVES
(FRESHWATER PEARL MUSSEL) REGULATIONS 2009

(Prn. A9/1064)

2 1296]
S.I. No. 296 of 2009

THE EUROPEAN COMMUNITIES ENVIRONMENTAL OBJECTIVES
(FRESHWATER PEARL MUSSEL) REGULATIONS 2009

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 section 2 of
the European Communities Act 2007 (No. 18 of 2007) and for the purpose of
giving further effect to Council Directive 2006/11/EC of the European Parlia-
ment and of the Council of 15 February 2006 on pollution caused by certain
dangerous substances discharged into the aquatic environment of the Com-
munity, Council Directive 92/43/EEC of the European Parliament and of the
Council of 21 May 1992 on the conservation of natural habitats and of wild
fauna and flora and Directive 2000/60/EC of the European Parliament and of
the Council of 23 October 2000 establishing a framework for Community action
in the field of water policy, hereby make the following Regulations:

Citation and commencement
1. (1) These Regulations may be cited as the European Communities
Environmental Objectives (Freshwater Pearl Mussel) Regulations 2009.

(2) These Regulations shall come into operation on 27 July 2009.

Purpose of the Regulations
2. The purpose of these Regulations is to support the achievement of favour-
able conservation status for freshwater pearl mussels. To that end they:

(a) Set environmental quality objectives for the habitats of the freshwater
pearl mussel populations named in the First Schedule to these Regu-
lations that are within the boundaries of a site notified in a candidate
list of European sites, or designated as a Special Area of Con-
servation, under the European Communities (Natural Habitats)
Regulations, 1997 (S.I. No. 94/1997).

(b) Require the production of sub-basin management plans with prog-
rammes of measures to achieve these objectives.

(c) Set out the duties of public authorities in respect of the sub-basin
management plans and programmes of measures.

Interpretation
3. In these Regulations, save where the context otherwise requires, —

“2003 Regulations” means the European Communities (Water Policy) Regu-
lations 2003 (S.I. No. 722 of 2003) as amended;

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

[296] 3

“Act of 1972” means the European Communities Act of 1972 as amended by
the European Communities Act 2007;

“Act of 1977” means the Local Government (Water Pollution) Acts 1977-1990;
“Act of 1992” means the Environmental Protection Agency Acts 1992-2007;
“Act of 1996” means the Waste Management Acts 1996-2008;

“Agency” means the Environmental Protection Agency;

“conservation status” of a species means the sum of the influences acting on the
species concerned that may affect the long-term distribution and abundance of
its populations;

The conservation status will be taken as “favourable” when:

— population dynamics data on the species concerned indicate that it is main-
taining itself on a long-term basis as a viable component of its natural habitats,
and

— the natural range of the species is neither being reduced nor is likely to be
reduced for the foreseeable future, and

— there is, and will probably continue to be, a sufficiently large habitat to main-
tain its populations on a long-term basis;

“co-ordinating local authority” has the same meaning as in the 2003 Regulations;

“Directive 2006/11/EC” means Directive 2006/1V/EC of the European Parlia-
ment and of the Council of 15 February 2006 on pollution caused by certain
dangerous substances discharged into the aquatic environment of the
Community;

“Directive 2000/60/EC” means Directive 2000/60/EC of the European Parlia-
ment and of the Council of 23 October 2000 establishing a framework for Com-
munity action in the field of water policy;

“ecological status” is an expression of the quality of the structure and func-
tioning of aquatic ecosystems associated with surface waters, classified in accord-
ance with the normative definitions of ecological status described in Directive
2000/60/EC;

“ecological quality ratio” (EOR) is an expression of the relationship between
the values of the biological parameters observed for a given body of surface
water and the values for those parameters in the reference conditions applicable
to that body and which establishes, pursuant to Directive 2000/60/EC of the
European Parliament and of the Council, and Commission Decision
2008/915/EC of 30 October 2008 (or any future amendment thereof), the values
of a Member States monitoring system classification as a result of the intercali-
bration exercise referred to in paragraph 1.4.1 Annex V of that Directive. The

4 [296]

ratio is expressed as a numerical value between zero and one, with high ecologi-
cal status represented by values close to one and bad ecological status by values
close to zero;

“freshwater pearl mussel” means the species Margaritifera margaritifera and/or
Margaritifera durrovensis;

“Habitats Directive” means Council Directive 92/43/EEC of the European Par-
liament and of the Council of 21 May 1992 on the conservation of natural habi-
tats and of wild fauna and flora;

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

“public authority” means an authority or State Sponsored Body listed in the
Second Schedule to these Regulations;

“river basin district” has the same meaning as in the 2003 Regulations;

“river basin management plan” means a river basin management plan, or updat-
ing of a river basin management plan, made in accordance with Regulation 13
of the 2003 Regulations;

“river” means a body of inland water flowing for the most part on the surface
of the land but which may flow underground for part of its course;

“surface water” for the purpose of these Regulations means inland water
except groundwater.

4. In accordance with Articles 11 and 17 of the Habitats Directive, the Mini-
ster shall, at least once every six years, carry out or cause to be carried out
monitoring, and assessment of the conservation status, of freshwater pearl mus-
sel populations listed in the First Schedule to these Regulations, and the press-
ures impacting on that status. The conservation status of the freshwater pearl
mussel shall be assessed using, inter alia, the criteria set out in the Third Sched-
ule to these Regulations.

5. For the purpose of assessing the ecological status of a surface water body
in accordance with Schedule IV to the European Communities Environmental
Objectives (Surface Waters) Regulations 2009, the Agency shall, in the case of
those surface water bodies identified under the First Schedule to these Regu-
lations, assign a status of ‘less than good ecological status’ where, on the basis
of specialist surveys undertaken, or caused to be undertaken, by the Minister to
assess conservation status, the freshwater pearl mussel is found to be in
unfavourable conservation status owing to water quality or hydrology in that
water body. The monitoring and assessment required under Regulation 4 of
these Regulations shall be such a status assessment.

6. For each water body listed in the First Schedule to these Regulations, the
Minister shall, commencing in 2009, carry out or cause to be carried out:

[296] 5

(a) baseline monitoring of those ecological elements identified in the
Third and Fourth Schedule to these Regulations,

(b) investigative monitoring to, where necessary, identify the pressures
and their sources, which have led to unfavourable conservation status
of the freshwater pearl mussel.

The Minister shall communicate the results of such monitoring to the public
authorities listed in the Second Schedule to these Regulations where relevant
to the performance of their functions.

7. The Minister shall prepare and publish a draft sub-basin management plan
for each of the areas listed in the First Schedule to these Regulations. The
Minister shall invite comment on the draft plans. Comment may be submitted
in writing to the Minister by any person or body. A period of not less than two
months shall be allowed for the submission of comment.

8. In consultation with the co-ordinating local authority and other public auth-
orities in the river basin district in which the surface water body is situated, the
Minister shall by not later than 22 December 2009, prepare, or cause to have
prepared, and publish a sub-basin management plan in respect of each body of
surface water classified as “less than good ecological status” under Regulation
5. The sub-basin management plan shall:

(a) specify objectives and targets, in accordance with Regulation 2, and
the Third and Fourth Schedules to these Regulations, and deadlines
for their achievement;

(b) provide for the investigation of sources of pressures leading to the
unfavourable conservation status of the freshwater pearl mussel;

(c) establish a programme of measures, including a timeframe, for the
reduction of pressures giving rise to unfavourable conservation status.
The programme shall include pressure reduction targets and dead-
lines, either in relation to individual pollutants or to particular sectors
or activities or both, to be implemented within the sub-basin, or parts
of the sub-basin as appropriate;

(d) lay down a detailed programme of monitoring to be implemented
within the sub-basin, or parts ofthe sub-basin as appropriate, in order
to evaluate the effectiveness of measures and progress made towards
restoring favourable conservation status,

9, It shall be the duty of a public authority listed in the Second Schedule to
these Regulations to take such steps as are necessary and appropriate to the
discharge of its functions to implement the measures identified in a sub-basin
management plan.

10. In consultation with the co-ordinating local authority and other public
authorities in the river basin district in which the surface water body is situated,

6 [296]

the Minister shall by not later than 22 December 2015 and every 6 years there-
after, review, or cause to have reviewed, and, if necessary, update and publish
a sub-basin management plan in respect of each body of surface water classified
as “less than good ecological status” under Regulation 5.

11. The measures included in a sub-basin management plan prepared under
these Regulations shall complement, and be additional to, any measures con-
tained in a river basin management plan prepared by a co-ordinating local auth-
ority for the purpose of Regulation 13 of the 2003 Regulations. The sub-basin
management plan shall not exempt a public authority, or body or person within
the river basin district from any obligations otherwise arising under the said
river basin management plan.

12. Without prejudice to the generality of Regulation 9 or any requirement
arising under the European Communities Environmental Objectives (Surface
Water) Regulations 2009, a public authority considering an application for auth-
orisation of a discharge to waters draining to the surface water bodies identified
under the First Schedule to these Regulations, under the Fisheries Acts 1959-
2003, the Act of 1977, the Act of 1992, the Act of 1996 or Regulations made for
that purpose under the European Communities Act of 1972 shall, where it is
satisfied that the proposed discharge would not contravene Article 6(3) and 6(4)
of the Habitats Directive, set down in the authorisation, emission limit values
that aim to achieve the ecological quality objectives set out in the Fourth Sched-
ule to these Regulations.

13. A public authority shall as soon as may be practicable, but not later than
22 December 2011 and sooner if required or where directed by the Minister—

(a) examine the terms of every authorisation to discharge to waters drain-
ing to the surface water bodies indentified under the First Schedule
to these Regulations and determine whether, having regard to the
requirements of Regulations 9 and 12 of these Regulations, the auth-
orisation requires to be reviewed,

(b) if the authorisation or revised authorisation requires to be so reviewed
complete such a review by the required date, or

(c) if the authorisation or revised authorisation does not require to be so
reviewed, and accordingly that no further action is required, declare
in writing to the Minister that it is of that opinion with the reason(s)
for that opinion.

A review for the purpose of these Regulations shall serve for the purpose of a
review required under Regulation 11 of the European Communities Environ-
mental Objectives (Surface Water) Regulations 2009.

14. The Minister shall monitor the implementation by public authorities of
the sub-basin management plans and measures referred to in Regulation 8, and
shall take such steps as necessary to ensure their implementation.

[296] 7

15. Where the Minister, the co-ordinating local authority for the river basin
district or the Agency, as appropriate, is of the opinion that a person, public
authority or body corporate has failed to comply with a function or duty under
these Regulations, or has performed that function or duty in an unsatisfactory
manner, the Minister, the co-ordinating local authority for the river basin district
or the Agency, as appropriate, may request a report within a specified period
from the person, public authority or body corporate in relation to the matter and
the person, public authority or body corporate shall comply with the request.

16. The Minister, the co-ordinating local authority for the river basin district
or the Agency, as appropriate, having considered any report of the person,
public authority or body corporate may, with a view to ensuring the satisfactory
performance of the function or duty in question—

(a) issue such advice and recommendations to the person, public authority
or body corporate as it considers necessary, or

(b) provide, on such terms and conditions as may be agreed, such assist-
ance or support as the Minister, the co-ordinating local authority for
the river basin district or the Agency considers, in consultation with
the person, public authority or body corporate concerned, would be
helpful.

17. Where the Minister, the co-ordinating local authority for the river basin
district, or the Agency is of the opinion that the response of the person, public
authority or body corporate to advice or recommendations issued or assistance
or support offered under Regulation 16 is inadequate for the purpose of com-
plying with a duty or function under these Regulations they may, without preju-
dice to any powers under any other statute, direct the person, public authority
or body corporate to carry out, cause to be carried out, or arrange for, such
action related to the function or duty in question as the Minister, the co-
ordinating local authority for the river basin district or the Agency considers
necessary within such a period as may be specified.

18. Where a person, public authority or body corporate fails without reason-
able cause to comply with a direction under Regulation 17, the Minister, the co-
ordinating local authority for the river basin district or the Agency may carry
out, cause to be carried out, or arrange for, such action related to the function
or duty in question as the Minister, the co-ordinating local authority for the
river basin district or the Agency consider necessary to ensure compliance with
the direction. The costs of such action may be recovered by the Minister, the
co-ordinating local authority for the river basin district or the Agency, as appro-
priate, from the person, public authority or body corporate as a simple contract
debt in any court of competent jurisdiction.

19. Where, on application by the Minister, the co-ordinating local authority
for the river basin district or the Agency, to the District Court, the Circuit Court
or the High Court, the Court is satisfied that a person, public authority or body
corporate is not undertaking, or does not intend to undertake, its functions or
duties under these Regulations in a manner consistent with the implementation

8 [296]

of a sub-basin management plan and its associated measures or with a direction
issued by the Minister, the co-ordinating local authority for the river basis dis-
trict or the Agency under Regulation 17, the Court may by order—

(a) direct that person, body corporate or public authority to take such
steps as are necessary to address the inconsistencies or other matters
identified, and

(b) make such other provision, including provision in relation to the pay-
ment of costs, as the Court considers appropriate.

20. An application for an order under Regulation 19 of these Regulations
shall be by motion and the Court, when considering the matter, may make such
interim or interlocutory order as it considers appropriate.

21. It shall be an offence not to comply with a requirement of these
Regulations.

22. A person, public authority or body corporate guilty of an offence is
liable—

(a) on summary conviction, to a fine not exceeding €5,000, or imprison-
ment for a term not exceeding 3 months, or both, or

(b) on conviction on indictment, to a fine not exceeding €500,000, or
imprisonment for a term not exceeding 3 years, or both.

23. Where an offence under these Regulations has been committed by a body
corporate or unincorporated body and is proved to have been committed with
the consent or connivance or to be attributable to any neglect on the part of a
person being a director, manager, secretary or other similar officer of the body
corporate, or of a person who was purporting to act in any such capacity, that
person as well as the body corporate is guilty of an offence and is liable to
be proceeded against and punished as if that person was guilty of the first-
mentioned offence.

24. Where the affairs of a body corporate or unincorporated body are man-
aged by its members, Regulation 23 shall apply in relation to the acts and
defaults of a member in connection with that member’s functions of manage-
ment as if that member was a director or manager of the body corporate.

25. A prosecution for an offence under these Regulations may be taken by
the Minister, the co-ordinating local authority for the river basin district, the
Agency or, where appropriate, the relevant public authority. A prosecution for
an offence may be taken by a local authority within the river basin district
whether or not the offence is committed within the functional area of the
authority.

26. The requirements of these Regulations are in addition to any obligations
arising under the European Communities Environmental Objectives (Surface
Water) Regulations 2009.