wir EUROPEAN COMMISSION

Hr
44

wur

Brussels, 14 -02- 1996
s0)D ZRRI

94/4274

Sir,
I would like to draw your attention to the implementation by Ireland of

Directive 76/464/EEC on pollution caused by certain dangerous substances discharged
into the aquatic environment of the Community ("the Directive"). =

BACKGROUND

In 1993, the Commission registered Complaints Nos 93/4525 and 93/4870 against Ireland
in relation to the proposed expansion of fish farming in Lough Swilly, in
County .Donegal. In 1994, it registered two further complaints, also conceming, fish
farming in County Donegal, Nos 94/4078 and 94/4274.

These complaints drew the Commission's attention to the polluting potential of marine
fish farms in Ireland through the introduction of the following into the aquatic
environment:

(1) faecal matter generated by the fish;

(ii) fish feed released as wastage;

(ti) biocides used to control parasites and other chemical used to control diseases; and

(iv) treatments applied to fish farm equipment.

Particular mention was made of the use of the substance Dichlorvos to control sea lice
(a parasite affecting salmon bred in marine fish farms).

Tänaiste and
Minister for Foreign Affairs
St Stephen's Green, 80

IRL - DUBLIN 2

Rue de la Loi 200, B-1049 Bruxelles/Wetstraat 200, B-1049 Brussel - Belgium - Office:
Telephone: direct line (+32-2)29......., exchange 299.11.11. Fax: 29.......
Telex: COMEU B 21877. Telegraphic address: COMEUR Brussels.

68.

SECRETARIAT GENERAL

 

N° SG(96) D/2223 Dur: 26 AR 46 IA
ol).

9 ELCToR/

INFRACTION / IRLANDE (94/4274)

Application de la Directive 76/464/CEE - Substances dangereuses dans l'eau
- Extension d'une ferme salmonicole ä Lough Swilly, County Donegal -

Mise en demeure notifiee le 14 fevrier 1996

N -
Document diffuse ä la Commission pour information.

Decision d’envoi de la lettre de mise en demeure,
au titre de l’article 169 CE,
prise par la Commission le 18 octobre 1995 (cf. COM(95) PV 1265).

Destinataires : les Membres de la Cammission

6t.

In investigating these complaints, the Commission re-examined Ireland's implementing
legislation for Directive 76/464/EEC, since this Directive is relevant to the introduction
of dangerous substances into the aquatic environment. The implementing legislation
comprises the Local Government (Water Pollution) Act, 1977 (amended in 1990). This
re-examination revealed what appeared to be a loophole in the legislation, namely an
exemption of marine fish farms from the need for authorization for discharges of
dangerous substances.

On 27 April 1994, the Commission wrote to Ireland drawing attention to this, and asking
for clarification änd information on how substances such as Dichlorvos discharged from
Irish marine fish farms are controlled in accordance with the Directive.

On 7 Aprıl 1995, Ireland responded, confirming that Dichlorvos was used in Irish marine
fish farms and that the Local Government (Water Pollution) Act, 1977 did not apply to
such farms.

On 4 July 1995, Ireland provided an additional response, enclosing copies of sections of
the Fisheries Act 1959 to 1994 together with the Foreshore Act 1933 which govern the
licensing and regulation of Irish marine fish farıms.

In this correspondence, Ireland indicated that general water quality monitoring was carried
‘out by fish farm operators.

LEGAL ANALYSIS

Applicability of Directive 76/464/EEC to Marine Fish farms

Relevant Provisions of Directive 76/464/EEC

 

Article 7(1) requires Member States to establish programmes to reduce pollution from the
substances within List II in the Annex to the Directive. These programmes are to include
the methods referred to in Article 7(2) and (3).
Article 7(2) provides that all discharges into the waters referred to in Article I of'the
Directive which are liable to contain any of the substances within List II shall require
prior authorization in which emission standards shall be laid down. Such standards shall
be based on the quality objectives provided for in Article 7(3).

Article 7(3) provides for quality objectives.

"Discharge" is defined in Article L(2)(d) to mean "the introduction into the waters referred
to in paragraph 1 of any substances in List I or List II of the Annex, with the exception
of:

- discharges of dredgings,

- operational discharges from ships in territorial waters, and

- dumping from ships in territorial waters."

The waters referred to in Article 1A) include territorial waters and internal coastal waters.
"Pollution" is defined in Article 1(2)(e) to mean "the discharge by man, directly or
indirectly, of substances of energy into the aquatic environment, the results of which are

such as to cause hazards to human health, harm to living resources and to aquatic
ecosystems, damage to amenities or interference with other legitimate uses of water."

63

Irish Marine Fish farms

In March 1994, there were at least 47 marine fish farms operating in Ireland.
Fish production from these farms expanded greatly during the 1980s"”.

Such farms are situated on publicly owned coastal or estuarine waters, and involve the
rearing of dense concentrations of fish (mainly salmon) in cages of various shapes and
sizes, and of many designs built around the basic concept of a floating collar supporting
a large suspended net bag held in place by mooring chains and ropes. A system of these
cages, 6-20, may be connected to each other with a central walkway to form a large,
floating rectangular raft, anchored to the sea bed.

A number of List II substances are introduced into Irish coastal waters from these
structures, i.e: they give rise to "discharges" within the meaning of Article 1(2)(d) of the
Directive. None of the exempted categories of discharge set out in Article 1(2)(d) apply.

It is relevant to mention the following categories of substance which form part of List II:

(a) Substances belonging to the families and groups of substances ın List I for which
the limit values referred to in Article 6 of the Directive have not been determined

The operation of fish farms can involve the use of biocides, vaccines, disinfectants
and anaesthetics.

In particular, the use of the substance Dichlorvos (sometimes better known under
the trade names "Nuvan" and "Aquaguard") in Irish marine fish farms as a biocide
for sea lice is cited. It is claimed that fish farmers commonly apply the substance
by pouring it in at one end of a cage system and allowing it to flow along through
the system with the aid of the tide, topping up the concentrations at each cage. It
can thus enter the surrounding aquatic environment.

Dichlorvos is an organophosphorous substance.and figures on a list of priority List I
substances endorsed by the Council of Ministers in 1983. As with most of the
substances on this list, Dichlorvos has not yet had limit values determined for it
pursuant to Article 6 of the Directive. Pending such determination, it falls within
the first category of List II substances (substances belonging to the families and
groups of substances in List I for which the limit values referred to in Article 6 of
the Directive have not been determined) and is thus subject to Article 7 of the
Directive.

It is claimed that the substance can persist in sea water for 7-10 days, and that it
is lethal to lobsters, crab, oyster, periwinkle and other shellfish.

Thus this category of List II substance is relevant to Irish marine fish farms.

® Report of the Sea Trout Task Force, March 1994. The Task Force was set up by
the Irish Minister for the Marine in July 1993 to look at the links between a
collapse in stocks of wild sea trout and the presence of marine fish farms.

®  _OJNoC 46, 17.2.1983, p. 17.

40.

(b) Substances which have an adverse effect on the oxygen balance, particularly:
ammonıa, nitrites

The Gowen Report:

- notes that intensive fish farming can generate large quantities of organic and
Inorganic waste which are continuousiy released into the marine environment;

- acknowledges that, while to date there is no evidence that fish farming has
caused large scale hypenutrification and eutrophication of the tidally energetic
coastal waters of Scotland and Ireland, the potential does exist, particularly in
slowly flushed semi-enclosed 'embayments or straits;

- notes that "organic waste from fish farming operations has caused enrichment
of the sea bed ecosystem in the near vicinity of fish farms in Irish coastal
waters. The changes which take place are similar to those which occur beneath
fish farms in other countries. These changes include the accumulation of
organically rich sediment, the formation of anaerobic sediments, the release of
gasses from the sediment and changes in the community structure of the
macrofauna";

- while accepting that, in Irish conditions, widespread depletion of dissolved
oxygen resulting from fish farming is unlikely, describes the potentially
deoxygenating effects of fish farm waste settling on the sea bed.

Thus this category of List II substance is relevant to Irish marine fish farms.

"Irish Legislation

Authorization exemption

A letter of the Irish Permanent Representation of 24 January 1983 referred the
Commission to the licensing activities of local authorities under the Local Government
(Water Pollution) Act, 1977 as forming the nucleus of: Ireland's programme for the
reduction of pollution from List II substances. This letter contains the following assertion:
"All discharges of- List II substances are subject to prior authorization under the
aforementioned licensing system".

However, while section 4(1) of the 1977 Act creates a general obligation to discharge
only on foot of a licence, section 4(2) provides that this general obligation shall not apply
to discharges "to tidal waters from ... marine structures".

No definition of "marine structures" is provided in the 1977 Act, but fish farm cages

would appear to be covered, and, in any case, the Irish authorities have confirmed that

the Act is not applicable to marine fish farms.

9 Ar assessment of the Impact of Fish Farming on tlie Water Column and
Sediment Ecosystem of Irish Coastal Waters (including a review of current
monitoring programmes), A, Report Prepared for Department of the Marine by
Dr R. J. Gowen, November 1990.

+.

Furthermore, the Commission is not aware of any other Irish. legislation whereby

‚discharges from fish farm cages must be authorized in the terms of the Directive. In this

regard, it has examined the sections of the Fisheries Act 1959 to 1994 and the Foreshore
Act to which Ireland's letter of 4 July refers. These make no provision for prior
authorization of discharges in which emission standards are laid down on the basis of

‚quality objectives.

t at, ın accordance with Article 7(2) of the Directive, discharges of List II
Substances from Irish marine fish farms are made the subject of prior authorization in
which emission standards are laid down on the basis of quality objectives.

Other Aspects of Implementation

Ireland has not fixed any quality objectives in respect of receiving waters for the List II
substances discharged from Irish marine fish farms, contrary to Article 7(3) of the
Directive. This failure is already the subject of infringement procedures A90/0961 and
A90/5220.

Therefore, the Commission considers that Ireland has failed to comply with its obligation
o ensure th

 CONCLUSIONS

In conclusion,
authorization of di es from Irish marine fish farms liable to contain List II
substances in accordance with Article 7(2) of the Directive.

the Commission considers that Ireland has failed to provide for prior
f discharg

In these Circumstances, the Commission, acting under Article 169 of the EC Treaty,
would ask the Irish Government to submit its observations on the contents of this letter
within two months of receiving it.

- After taking note of these observations, the Commission may, if necessary, deliver a

Reasoned Opinion under Article 169. It may also deliver a Reasoned Opinion if the
observations fail to reach it within the period stated.

Yours faithfully,
For the Commission

5 en n

t2.