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INFO: DG [A IBt |
Ms. Catherine Day m

Director-General
Directorate-General Environment
Commission of the European Union
Avenue De Beaulieu, 5

1160 Brussels

Re: European Court of Justice Judgment in Case C-396/01,
Commission-v-Ireland

Dear Director-General,

| have been asked by my authorities to refer to my letter of 25 June 2004 in response
to your letter of 24 March 2004 concerning the judgment of the European Court of
Justice in Case-396/01 regarding Ireland’s implementation of Directive 91/676/EEC.

The purpose of this correspondence is to update the Commission of
developments in relation to Ireland’s Draft Nitrates Action Programme and to seek
technical discussions with the Commission prior to its finalisation and
implementation.

As indicated in my correspondence of 25 June 2004 an initial draft action
programme was issued for public consultation on 19 December 2003. That draft
was revised in response to comments received and in line with good public
consultation practice was issued on 9 July 2004 in a second and final round of
public consultation (a copy of this document is enclosed). Close to 50
submissions have been received and are currently being examined by Mr. Denis
Brosnan who has been appointed by the Minister for the Environment, Heritage
and Local Government as an independent adviser in relation to the action
programme. Mr. Brosnan has also held meetings with key stakeholders and will
submit his recommendations to the Minister by end September 2004. Following
on from this the draft action programme will be revised as necessary and
submitted to the Commission by mid October 2004.

At that stage, my authorities will be available for detailed technical discussions
with Commission officials, prior to the giving of legal effect to the programme. As
indicated in my correspondence of 25 June 2004 the action programme will be

ı oil I»

implemented on a phased basis with effect from 1 January 2005 and will operate
for a period of 4 years.

Yours sincerely,

a

Enwironment Counsellor \)

cc ıandN u " "DG Environment)

Consultation Paper

CONSULTATION PAPER

IRELAND

DRAFT NATIONAL ACTION PROGRAMME
UNDER THE

NITRATES DIRECTIVE

Fre, T $ THE DEPARTMENT OF
TS TRRI u
an „N AI HLHEIET Ama IS AGRICULTURE & FOOD
DEPARTMENT OF TI ENVIRONKANT, HERITAGE ka AN ROINN TALMHAIOCHTAAGUS DIA

9 July 2004

Index
Item
Introduction

1. Background to National Action Programme
1.1 Nitrates Directive

1.2 Action programmes

1.3 Limit on the amount of livestock manure to be applied

1.4 Waters addressed by the Directive

1.5 Water quality in Ireland

1.6 Implementation to date

1.7. Whole territory approach

1.8 Designation Regulations

1.9 Draft action programme: first consultation

1.10 Application for derogation

1.11 Achieving compliance

2. National Action Programme
2.1 General
2.2 Farming Practices
2.3 Zones
2.4 Periods when land application of fertilisers is prohibited
2.5 Capacity of storage facilities for livestock manure
2.6 General provisions as to storage management
2.7 Limits on the amount of fertilisers to be applied
2.8 Limits on the amount of livestock manure to be applied
2.9 Requirements as to the manner of application of fertilisers
2.10 Ploughing and the use of non-selective herbicides

3. Record Keeping and Compliance monitoring
3.1 Record keeping
3.2 Competent authorities
3.3 Supervision and controls
3.4 Penalties

4. Monitoring and Evaluation of National Action Programme
4.1 Assessing effectiveness of action programme
4.2 General monitoring programme
4.3 Localised monitoring of waters in higher-risk areas
4.4 Monitoring impact of action programme measures at
Farm and mini-catchment levels

5. Support for the national action programme
5.1 Investment
5.2 National advisory service
5.3 Guidance document

Annex 1  Definitions of certain terms
Annex2 Table: Nitrates Action Programme: Zones and Minimum
Periods of Storage for Livestock Manure
Annex3 Map: Minimum slurry storage requirements
Annex4 Data relevant to the evaluation of the effectiveness of
the action programme

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Page

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Consultation Paper

Introduction

It is necessary to establish and implement an action programme for the purposes of
further implementation of the Nitrates Directive in Ireland. A draft of an action programme
was issued for public consultation on 19 December 2003 jointly by the Department of the
Environment, Heritage and Local Government (DEHLG) and the Department of Agriculture
and Food (DAF). Written comments were received in relation to the draft programme
which has been revised in response to these. This revised draft is now being issued for
public consultation and comment prior to finalisation of the text and the formal submission
of the programme to the European Commission.

Given that this is a second round of formal consultation and that it is necessary to
establish the programme at an early date, all interested parties are invited to provide
comments in writing as soon as possible and not later than Tuesday 3 August 2004.
Please address comments to —

Ms Mary Boothman Ms Ann Maguire

Water Quality Section Environment Section

Department of the Environment, Department of Agriculture & Food
Heritage and Local Government Johnstown Castle

Custom House Wexford

Dublin 1

Tel 01-8882451 1890 200509

Fax 01-8882994 053 43965

Email mary_boothman@environ.ie ann.maguire@agriculture.gov.ie

This document has been prepared jointly by DEHLG and DAF and sets out —

e in Chapter 1, background information in relation to the Directive and its
implementation to date, and

e in Chapters 2 to 5, a revised draft national action programme for its further
implementation.

In the preparation of this document regard was had to some 70 submissions received in
relation tothe draft action programme issued in December 2003 and also to case law
stablished in recent judgments of the European Court of Justice (ECJ) in relation to the
‚ .itrates Directive, including a judgment delivered on 11 March 2004 in relation to Ireland
(C-396/01 - 2004). The ECJ has held that Ireland is non-compliant with the Directive by
virtue inter aliaof not having yet established an action programme. It is incumbent on
Ireland therefore to establish and implement an action programme and to achieve
compliance with the Directive in all respects at the earliest practicable date. Other recent
Judgments include those delivered in relation to Germany (C-161/00 - 2002), France (C-
258/00 - 2002) and the Netherlands (C-322/00 - 2003).

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1. Background to National Action Programme
1.1  Nitrates Directive

The Nitrates Directive (91/676/EEC) - Council Directive of 12 December 1991
concerning the protection of waters against pollution caused by nitrates from agricultural
sources — was adopted in 1991and has the objective of reducing water pollution caused
or induced by nitrates from agricultural sources and preventing further such pollution,
with the primary emphasis being on the management of livestock manures and other
fertilisers.

The Nitrates Directive generally requires Member States to -

« monitor waters and identify waters which are polluted or are liable to pollution
by nitrates from agriculture

« establish a code of good agricultural practice to protect waters from such
pollution

® promote the application by farmers of the code of good agricultural practice

e identify the area or areas to which an action programme should be applied to
protect waters from pollution by nitrates from agricultural sources

e develop and implement action programmes to reduce and prevent such
pollution in the identified area: action Programmes are to be implemented and
updated on a four-year cycle

e monitor the effectiveness of the action programmes, and

® reportto the EU Commission on progress.

Judgments of the ECJ have clarified that the Directive requires Member States to
establish a first action programme not later than 19 December 1995 and that Ireland is
non-compliant with the Directive by virtue inter alia of not yet having established an
action programme. It is incumbent on Ireland therefore to establish and implement an
action programme at an early date in order to achieve compliance.

1.2 Action programmes

The action programmes to be developed by Member States must include rules relating
to -

®  periods when the land application of certain types of fertiliser is prohibited

e the capacity of storage vessels for livestock manure: generally this capacity
must exceed that required to store manure for the full length of the “prohibited
period”

e limitations on the land application of fertilisers consistent with good
agricultural practice taking into account characteristics such as soil conditions,
soil type, slope, climatic conditions, rainfall, irrigation, land use and
agricultural practices and a balance between nitrogen supply and nitrogen
requirements of the crops

e limits to ensure that for each farm the amount of livestock manure applied to
land each year, including by the animals themselves, shall not exceed a
specified amount per hectare

« other matters set out in the code of good agricultural practice.

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1.3 Limit on the amount of livestock manure to be applied

The Directive specifies the maximum amount of livestock manure which may be applied
as the amount containing 170 kg of organic nitrogen per hectare per year. Member
States may fix different amounts provided that the different amounts do not prejudice the
achievement of the objectives of the Directive and can be justified by reference to
objective criteria such as long growing seasons, crops with high nitrogen uptake, high
net precipitation and soils with exceptionally high denitrification capacity.

A recent ECJ judgment (Netherlands, C-322-00, October 2003,) has clarified that the
approval of the European Commission is required where a Member State proposes to
fix an amount higher than 170 kg organic nitrogen. Where a Member State wishes to
seek approval for a higher amount (generally known as “a derogation”) it must make an
application to the European Commission and justify the application on the basis of the
objective criteria set out in 2(b) of Annex Ill of the Directive.

As a transitional feature on commencement of implementation, the Directive allowed
Member States an option to fix, at their own discretion, amounts of up to 210 kg organic
nitrogen during their first four-year action programme. Judgments of the ECJ have
‚clarified that this discretion related only to a four-year period commencing at the latest
on 19 December 1995 and that this discretion is no longer available to Member States.
The approval of the European Commission must now be obtained for any derogation
from the general limit of 170 kg organic n itrogen - see paragraph 1.10 in relation to
Ireland’s proposed application for a derogation.

1.4 Waters addressed by the Directive
The Nitrates Directive defines waters which are polluted or are liable to pollution as:-

surface freshwaters, in particular those used for the abstraction of drinking water,
which contain or could contain, if preventative action is not taken, nitrate
concentrations greater than 50 mg/l.

groundwaters which contain or could contain, if preventative action is not taken,
nitrate concentrations greater than 50 mg/l

natural freshwater lakes, or other freshwater bodies, estuaries, coastal
waters and marine waters which are found to be eutrophic or in the near future
/ may become eutrophic if preventative action is not taken.

A judgment of the ECJ in June 2002 clarified that eutrophic waters must be addressed
under the Nitrates Directive even where the eutrophication is caused mainly by
phosphorus rather than nitrates from agricultural sources (Case C-258/00, Commission
v France).

Eutrophication is the enrichment of waters by excessive inputs of nutrients such as
nitrogen or phosphorus compounds, causing accelerated growth of algae and higher
forms of plant life, resulting in an undesirable disturbance to the balance of organisms
present and to the quality of the water concerned. Agriculture is the largest source of

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inputs to Irish waters of phosphorus and nitrogen contributing an estimated 73% and
82%, respectively. Other sources include wastewater treatment plants, industry, and
septic tanks. Eutrophication of inland waters is considered to be Ireland’s most serious
environmental pollution problem.

1.5 Water quality in Ireland

Water quality in Ireland is generally good in a European context but has deteriorated
from the position which prevailed when surveys commenced in 1971. The third report of
the Environmental Protection Agency (EPA) on the state of the environment (Ireland’s
Environment 2004 - published in April 2004) indicated that agriculture is responsible for
a significant proportion of Irish water pollution in rivers, lakes, estuaries and
groundwaters.

An EPA report titled Water Quality in Ireland, 1998-2000, indicated a halt to the
continuing decline in water quality but pointed to the need for further major programmes
to eliminate water pollution. This report shows that some 30% of river channel length is
affected by pollution to some extent i.e. slight (17%), moderate (12%) or serious (1%)
pollution: elevated nitrate levels are recorded in approximately 20% of well sampling
stations and high ammonia values were found in groundwaters across 8 counties.

It also shows that there continues to be a decline in the number and percentage of Q5
river stations countrywide. These are the sites of the highest biological water quality
and the number of such sites has fallen frorn over 600 in the 1980s to a current level of
less than 100.

The most recent EPA report on drinking water quality (The Quality of Drinking Water in
Ireland, A Report for the Year 2002, EPA) indicates that breaches of the prescribed
standard for nitrates in drinking water supplies (public and private) were recorded in 14
counties (Cavan, Cork, Galway, Kerry, Kildare, Kilkenny, Laois, Limerick, Louth,
Roscommon, Tipperary, Waterford, Wexford, Wicklow).

1.6 Implementation to date
By way of implementing the Nitrates Directive in Ireland to date :

®e local authorities and the EPA have undertaken extensive monitoring of

nitrate levels in waters
) ®e  theEPAhas carried out assessments of the trophic status of waters

e the DEHLG and EPA have reported to the EU Commission on
Implementation

e the DEHLG and DAF in consultation with the farming organisations have
jointly developed the ‘Code of Good Agricultural Practice to Protect Waters
from Pollution by Nitrates, July 1996

° a wide range of actions have been taken, by the authorities and by farmers,
to promote good agricultural practice and otherwise to protect water quality
against pollution by agriculture (and by other sectors)

® the national territory has been statutorily designated for the purposes of
Articles 3(5) and 5 of Council Directive 91/676/EEC i.e. the area in relation

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to which an action programme will be established and implemented, and
e a draft action programme was issued for public consultation in December
2003.

Water quality monitoring for the purposes of the Nitrates Directive included an extensive
programme of monitoring of surface freshwaters and ground waters carried out by local
authorities in 1992 / 1993 and again in 1997 / 1998. The latter monitoring programme
indicated elevated nitrate levels in certain waters and further investigations were carried
out in 1999. Subsequently, an expert panel was established to carry out a
comprehensive evaluation of these results. In July 2000, 14 groundwaters in Counties
Carlow, Cork, Kerry, Louth and Waterford were identified as ‘affected waters’ under the
Nitrates Directive.

In March 2001, the EPA, following a survey of water quality in Ireland’s estuaries and
bays (An Assessment ofthe Trophic Status of Estuaries and Bays in Ireland, March
2001, EPA) concluded that 17 estuarine waterbodies were eutrophic or potentially
eutrophic due to excess inputs of nitrogen and/or phosphorus. The assessment
provided, for the first time, specific objective criteria and a sufficient body of information
for a reliable assessment to be made of the trophic status of Ireland’s estuaries and
‚bays.

F

A wide range of other measures has been taken in various sectors for the promotion of
good agricultural practice and for protection of water quality and the environment
generally against pollution. These are described in the following paragraphs.

Agricultural Sector

Measures taken in the agricultural sector include obligatory, advisory and voluntary
measures.

The obligatory / statutory measures include:

® local authority bye-laws in relation to agricultural activities

e issue of “section 12 notices” and related farm inspections by local authorities
under the Local Government (Water Pollution) Acts

® appropriate conditions applied by local authorities / An Bord Pleanala in the
context of planning permissions

e integrated pollution control (IPC) licensing by EPA of intensive pig-rearing and
poultry-rearing units, and

e the rules for Good Farming Practice applicable to farmers claiming aid under
direct payment and other national schemes operated by DAF.

The advisory measures include:

e national farm advisory services e.g. Teagasc
°e nutrient management advice

The voluntary measures include :-

e significant investment by farmers in waste storage capacity and other
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infrastructure for environmental protection supported by funding under the
Farm Waste Management Scheme (previously the Control of Farmyard
Pollution Scheme) operated by DAF

° a significant reduction in the use of chemical fertilisers

« the Rural Environment Protection Scheme (REPS operated by DAF).

Other Sectors

Appropriate measures are and will continue to be taken to prevent water pollution by the
non-farming sectors. Industrial, commercial and certain domestic discharges to water
have been subject to licensing under the Local Government (Water Pollution) Acts since
the 1970s. Controls on industrial activities were intensified by the introduction of IPC
licensing under the Environmental Protection Agency Act 1992.

Updated statutory standards were applied to discharges from local authority sewage
treatment plants in 1994 under the Urban Waste Water Treatment Regulations (now S.l.
254 of 2001) which assigned to the EPA responsibility for supervising the activities of
local authorities under the regulations. There has been a major programme of
‚investment in water services by DEHLG and local authorities, with support from EU
funds. New wastewater schemes completed since 2000 have produced additional
treatment capacity equal to the requirements of a population of 2.8 million people. The
current DEHLG programme under the National Development Plan for investment in
water services in 2004 - 2006 relates to 577 wastewater schemes with an estimated
capital value of 2.7 billion euros, including all of the schemes needed for compliance
with the Urban Waste Water Treatment Directive. In addition, the programme includes
the schemes necessary to ensure the provision of wastewater treatment at every
agglomeration of over 1,000 population equivalent with the result that, by end 2005,
Ireland will have significantly surpassed its formal obligations under the Directive.

All major industrial and local authority activities relating to waste disposal were made
subject to licensing by the EPA (or by local authority permits) under the Waste
Management Act 1996

The marketing of phosphate-based domestic laundry detergents has virtually ceased
under a voluntary agreement made by DEHLG in 1999 with the detergents industry.

At regional level, the DEHLG is promoting and funding the establishment and operation
by local authorities of inter-authority projects to develop river basin monitoring and
‚management systems and to support implementation of tne Water Framework Directive.
The river basin management projects will cover all inland surface waters and
groundwaters as well as estuaries and coastal waters. These projects will identify all
significant impacts from all sources on water quality, set quality objectives for all waters
and identify and put in place the necessary management measures to achieve those
objectives.

1.7. Whole territory approach

Discussions commenced in December 2001 with interested parties, particularly the
farmer representative b.odies, in relation to the further implementation of the Nitrates

6