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REPRESEnNTaTIon PERMANENTE
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SOMMUNAUTER EuURopgEennes

AVENUE Galılke B (Bra 225
1030 BRUXELLe®
TEL. 218 08 08.

 

PR July, 1993,

Environment, Nuclear Safety and Civil Protection,
- Commission of the European Communities,

Rue de la Lot, 200,

B - 1049 Brussels,

Belgium,

Dear Director General,

of Directivas and related Complaints received bythe Commission. This letter addresses
the matters raised in Part D Of the letter which relate to the Proposed fish farın at
Bailyhealy, Co, Wexford: separate letters will dee! with Other questions,

Directive fepresent the basis on which bathing waters should be Identified, However,
If one relied solely on the criterion regarding large numbers of bathers, relatively few
bathing Waters in Ireland would qualify, Large numbers would Imply some thousands of
bathers traditionally practising bathing; during early stages In che formulation of the
draft Directive, the term was viewed in the context of 10,000 persons per linear
kilometre, Ireland has, however, Consistentiy taken a liberal approach to this criterfon

2

which cannot reasonably be Interpreted as restrictive,

For the purpose of optimizing the application of the Directive, my authorities have
indicated to the local authorities, who assist in fdentifying the bathing waters Concerned
at local level, that a less restrictive numerical criterion of "a reasonable number of
bathers" should be used to identify waters to which national Regulations, spplying the
requirements of the Directive, would relate, In addition, the attention of these u
authorities is also drawn to Indicative eriteria of an Infrastructural nature which could |
be helpful in Indicating the popularity of particular areas for bathing. These extraneous
criteria are indicators only and it is not a feature of the approach adopted by my
eauthorities to exclude from national Regulations bathing waters which meet wich the

. statutory criterla but which fail to meet such extraneous eriterla, On the. contrary, the

results of the systematie approach and regular review adopted to maximise the
application of the Directive's requlrements can be seen from the Increase In the original
application of the Directive in Ireland to seven areas, to its application to 51 beaches
ir 1988, 64 in 1989 and 94 in 1992,

The crucial criteria in Identifying bathing areas in Ireland's case (i.e, the numbers of
nachare) is the determining factor which inust be satisfied in each case Irrespective of
;xher or not the other Indicative criteria are met. While my authorities' letter of
ci December 1990 stated that Ballyhealy "did not satisfy the foregoing (indicative) |
eriterla", that was entirely in the context of the less restrictive Criteria inherent in our

national approach and was not with reference to the statutory :. ikerlaof "large numbers.

of bathers" with which the bathing area did not comply, My authorities would point out
that the Commission itself stated, in reply to Question H 388/85, that ic was aware that

. Interpretation of the statutory criteria was not easily practicable and that ". some _

objective criteria willalso have to be taken Into account"; the reference inthe national

approsch to indicative criteria was also influenced by guldance given bythe Commission
at a meeting of national experts in November 1988. It is also noted that the
Commission has decided recently that applications for Blue Flag. beaches (the

j requirements for which include considerable Infrastructural provision but no numerical

eriterton) must bo confined only to beaches where: bathing waters have been Idantified'

3
for the purposes of Directive 76/160/EEC.

“ While my authoritieg could Consider including the definition of bathing waters In the
natlonal Regulations when these are reviewed for next year's bathing season (the
Commission is already aware of our commitment to revise these regulations to include
‚additional areas for the 1994 bathing season), the Inclusion of such a definition may not
be considered to add much t0 Implementation procedures and could give rise to
considerable difficulties In practice. As has been acknowledged by the Commission, the
Interpretation of the Directive's criteria is not easily practicable and, agalnst that
background, the Inclusion of a definition, difficult to Interpret In practice, could serve
to undermine the current administration of national Regulations, Legal doubts could
be cast on the present approach to the Identification of bathing waters; In particularthe
list of waters included In Regulations could come under scrutiny, The undermining of
a definitive list would make the application of the Directive's requirements (in regard
to monitoring etc) very difficult to implement and uncertain, The status and use In
practice of non-statutory but less restrictive criteria (e.g, use of "reasonabla” rather
than "large" numbers, and the other objective indicators) would also be less certain in
these circumstances,

sE

As previc.'y Indicated, my authorities keep the application of the Directive under

- review; the Identification of bathing waters is regularly reviewed in the light of ongoing
| developments and reports from local authorities. Local authorities have ‚nen asked to
agein review the position In their areas for the purposes of the 1994 season. My
authorities note that the Commission Is willlng to look again at the position in relation
to Identified waters and consider that the use of Non-statutory criteria in the national
äpproach, which heips to optimise the application of the Directive, should continue and

that the overall position might be kept under review in the light of developments.

As regards level of usage at Ballyhealy, my authorities do not agree with the
Commission's view that a photograph in the Commission's possession showing some 200
people on the beach at Ballyhealy shows a level of usage by bathers which corresponds
to the statutory criterion of bathing being "traditionally practised by a large number of

4

bathers" and thus deny.that Ireland Is in breach of the Directive by not applying its
provislons there. In the context of the review for 1994, Wexford County Council has
been asked to make & further report on the Ballyhealy beach; the County Couneil did
not put forward this beach for inclusion In the last review undertaken for the 1992
season as the Council reported, Inter alla, that the number of bathers there was not
significant, In the absence of anything clearly unreasonable in this local authority
assessment, my authorities consider that this ls an area to which the principle of
eubsidiarity can be well applied. \

Environmental Impact Assessment
In regard to the need for Environmental Impact Assessment for the proposed fish farm
at Ballyhealy, my authorities wish to reiterate that development consent within the
meaning of Directive 85/337 was granted for the project (oa 24 June, 1988) before the
date (3 July, 1988) by which Member States were required to give effect to that

Directive, _

The Directive defines development consent as "the decision of the competent authority
or authoritios which entilles che developer to proceed with the project. Moreover,
"project" is defined (inasmuch as Is relevant In the Instant case) us "the execution of
construction works or... nther Installations or schemes", Accordingly, the development
consent decision in this case was the decision which ‚authorises the execution of
“construction works, etc. The decision made by Wexford County Council on 24 June,
1988 to &rant planning permission for the proposed fish farm was a decision tö authorlse
the construction works hecessary for the enterprise. Ic wil| be seen, therefore, that
construction of the fish farm had been authorised before 3 J uly, 1988; My authorities
can ses no grounds upon which it could be held that EtA was required in this case by
virtue of Directive 85/337. It is noted that the Commission accepted that this is the
position ata meeting held with the Irish Permanent Representation in Brussels in April,

1991.

I have been asked to add also that other deciglons referred to by: the Commission
_ (effiuent discharge licence, fish culture licence) are not decisions authorising the

this project within the meaning of Directive 85/337, "As regards the foreshore licence
granted under the Foreshore Act, 1993 for the laying of an outfall Pipe äcross the
foreshore, the Commission Is asked to note that this licensing process was Concerned
only with the acceptabllity of the pipe-laying per se and Could not, therefore, be held
to necessitate the carrying out of EIA for the totality of the Proposed enterprise,

The statement at Paragraph 33 that "It does not seem to be disputed that the Proposed
Ballyhealy fish farm is a salmonid-breeding Project and thus comes within & class of‘
project covered by the EIA Directive (Annex U.1(g)" is noted. As the Commission will
be aware, however, Annex I.1(g) of the Directiye refers to salmon breeding only.
Accordingly the only obligation arising under this provision of the Directive is to
establish an ELIA procedure for galmon breeding projects, The PFoposed fish farm at
Ballyhealy will nor involve salmon-breeding. My authorities consider that this
reinforces their view that EIA was nor required for the project arising from any
Provision of the Directive., They wish to point out in these Circumstances that the
provision of the European Communities (Environmental Impact Assessment) Regulationg,
1989 requiring EIA for salmonid Koeeding must be viewed as an exercise of the
discretion given to Member Sta:i: Articie 13 of Directive 85/337 to adopt stricter
rules for assessing the environmental effects of projects arising from.the coming into

operation of those Regulations on 1 February, 1990.

As regards the Coverage of projects such as the proposed fish farm at Ballyhealy by
Paragraph If) of the First Schedule to the European Communities (Environmental
Impact Assessment) Regulations, 1989, my authorities wish to elarify that their purpose
in stating in the letter of 21 December, 1990 that the Ballyhealy farm would not be a
. seawater Installation was to indicate that such projects fall to be considered under the
"freshwater" element of paragraph I(f). On reflection, however, they. are of the view
' that the said Paragraph may need to be clarified in terms of Its epplication eo land-

based fish farms which use diluted seawater. While they will consider this matter
further with a view to establishing whether eny clarification of the regulations is

6

necessary, my authorities nevertheless wish to assert that the question of amending
Paragraph If) is not relevant to the present case, because as »previousiy stated the
development cansent decision for the purposes of Directive 85/337 preceded the date
by which Member States were obliged to implement the Directive,

Dangerous Substances Control

' Asregards controls on discharges of dangerous substances into the aquatic environment,

the general principles which Operate in Ireland are incorporated in relevant development
control legislation i.e, the Planning Acts and, the operational Controls provided for in
the Water Pollution Acts, and Regulations made thereunder, and in the Fisherieg

| (Consolldation), Act, 1959, together with the fequirements of the Foreshore Act, 1933.

in regard to the laying of pipes along the foreshore, The Water Pollution Acta, and
relevant Regulations, set down a comprehensive framework for controls on water
pollution including a prohibition on trade and effluent discharges ®xcept under licence,
a strict licensing system with Provision for reviews and appeals, provisions for quality
standards, etc. The control regime has been considerably strengthened by the

 establishment of the Environmental Protection Agency which will licence a wide range

of scheduled activities on an Integrated pollution control basis and, Inter alla, on the
basis of the use of BATNEEC. ai |

My authorities do not accept the argument that, under the licence in the Ballyhealy |
Case, the operators would seem "to.be entitled to discharge any chemical Into ti Irish
Sea, no matter how dangerous it might be" and reassert that the situation is as stated
In letter of 21 December 1990 in that discharges of chemical substances (such as
entiblotics, pesticides ar fungicides) are prohibited unless with the prior agreement of.
the County Council. This requirement (for prior agreement) ensures an effective and
Continuing control on the plant In operation (the plant has not commenced operation a3
of yet), depending on the particular chemicals which the proposer tight wish to use at.
any time and the control regime provided for in che Water Pollution Acts Is avallabie
to the local authority to ensure that no difficulties arise (e.g. to ensure compliance with
Hcance conditions, to revise licence, to undertake or require remedial measures to be

7

undertaken, to carry out Or Cause monitoring to be carried out etc). Apart from Water
Pollution Act controls, fish eulture licenses from the Minister for the Marine under the
Fisheries (Consolidation) Act, 1959, as is required In the Ballyhealy case, contain
operastional controls, These licences, which are generally valid for a ten-year period,
allow operators to farm subject to certain Conditions which include requirements in
regard to Cartying out operations in a hygienic manner, carrying out of monitoring
requirements, and administering chemicals and treatments Ina manner approved of by
the Department of the Marine.

As regards the national approach to licensing of substances In List I of Directive

T6/464/EEC, local authorities have been instructed, on foot of the provisions of the
Directive, to require prior authorisation of all discharges to waters which ara liable to

contain substances belonging to the femiltes and groups of substances In List 1; the

Water Pollution Acts provide the means för such euthorisation. The authorisations are

to contain emission standards with regard to such discharges; Ireland does not have

recourse, in the case of substances within List I,to the quality objectives method which

is provided for in the Directive. The emission standards to be set must compiy with

standards laid down in daughter Directives where these exist and effect to this

requirement is given by way of specific Regulations made under the Water Pollution
Acts, As regards discharges of List II substances, prinr authorisation of these is

required and emission standards are to be laid down in 'these authorisations,
Authorisatlons are framed co take account of the provisians of: the Dangerous
. Substances Directive on such substances, . The Environmental] Protection Agency, as
previousiy mentioned, will Operate an integrated Ilcensing system based on BATNEEC
for scheduled activities. My authorities consider that the competent authorities
concerned In Ireland have adequate Powers and resources available to them to. fully
| consider and deal with applications for Icences to discharge dangerous substances to
wäaters and to deal with any licence reviews or appeals that may arise,

With reference to dichlorvos, this is marketed in Ireland under the brand name NUVAN:

and, apart from the operational environmental Controls already referred to, this
_  Pestichde is subject to the provisions of other EC Directives (such as Directive

“.

78/639/EEC on the Classification, packaging and labelling of pesticides and the
Prohlbition Directive ?9/11T/EEC) which are administered by the Pesticide Control Unit
of the Department of Agriculture, Food and Forestry, In addition, the Irish supplier of
this product - CIBA-GEIGY - has been licensed with regard to its supply and use by the
National Drugs Advisory Board in accordance with Directives, S1/ESI/EEC and
81/852/EEC on the approximatlon of laws relating to veterinary medicinal products and
procedures and in accordance with appropriate national provisions,

The Commission will already be aware of the current extent of surface water
monitoring Programmes in Ireland; a Copy of the recent ERU Report: "Water Quality In
Ireland, 1987-1990", which has been sent: under separate cover, gives details of the
programme nationally. In the case of Ballyhealy, monitoring of sea water there has
been carried out by Wexford County Council in the period 1988-1990 for certain

parameters including BOD, Ph, Orthophosphate and Solids.

As regards the laying down of quality objectives, the present position in this respect is
explained in the penultimate paragraph of the attached letter which has already been
forwarded to the Commission.

My. authorities trust that the foregoing information will satisfs:. hy clarify the

position in regard to the matters raised in Part D of letter under repiy,

Yours sincerely,

Environment Attache.

enTeA WnWtury

 

  

     

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