EUROPEAN COMMISSION

Brussels, 1% -07- 1999
SCND/ 52 17

Sir,

I would like to draw your attention to the implementation by Ireland of
Directive IV/676/EEC concerning the protection of waters against pollution caused by
nitrates from agricultural sources ("the Directive").

In supplement to a previous letter of formal notice notified to Ireland on 21 October 1996 in
relation to the Directive (SG(96) D/9192), the Commission would contend that Ireland is
not in conformity with its obligations under the Directive and the EC Treaty in the
following respects:

1. Failure to identify waters in accordance with Article 3(1)

Article 3(1) imposes an obligation on Member States to identify certain waters in
accordance with the criteria set out in Annex I of the Directive.

In a letter of 17 July 1995 (which also constituted Ireland's first report for purposes of
Article 10 of the Directive), the Irish authorities confirmed that no waters coming within
Article 3(1) ofthe Directive had been identified by them. This position has not changed.

On the basis of the information available to it, the Commission considers that Ireland has
failed to identify waters in accordance with the criteria of Annex 1.

Surface waters coming within the scope of Annex I.A.1

Annex l.A.l refers to two main categories of surface water: first, those which contain
more than the concentration of nitrates laid down in accordance with Directive 75/440/EEC
(le. a minimum of 50 mg/l); secondly, those which could contain more than this
concentration if action pursuant to Article 5 of the Directive is not taken.

 

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"Minister for Foreign Affairs
St. Stephen's Green 80
Dublin 2
Ireland

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

The Commission considers that Member States do not have a discretion to omit to identify
waters in the first category unless it can be shown that the waters concerned are not affected
by "pollution" as defined in the Directive. In this regard, the Commission notes that, in the
abovementioned letter of 17 July 1995, the Irish authorities confirmed that, of 1 461 river
sampling points in the period 1987-1990, 30 (or 2%) showed concentrations greater than
50 mg/l. Nonetheless, none of the waters concerned were identified by Ireland for purposes
of Article 3(1). It would appear that Ireland seeks to justify the non-identification of such
waters on the basis that the nitrate concentrations have been linked to miscellaneous
point sources of pollution (including point agricultural sources) and not diffuse agricultural
pollution. However, as the Commission has pointed out in its abovementioned previous
letter of formal notice of 21 October 1996, the Directive covers point agricultural pollution.
Given that agriculture is practised in the catchment of all Irish rivers, waters showing
concentrations greater than 50 mg/l must be assumed to be affected by "pollution" within
the meaning of the Directive, although there may of course be other sources of nitrate.

As regards waters in the second category, Member States must exercise a judgment as to
whether these could contain more than 50 mg/l of nitrates if action pursuant to Article 5 is
not taken. A 1994 study by Teagasc, Ireland's agricultural advisory agency, looked at the
areas in Ireland most potentially at risk from nitrate losses to water from agricultural
sources. It noted that there were parts of Ireland, such as in County Monaghan, where
nitrate inputs to soil were high, due primarily to intensive pig and poultry production, and
where the risk in run-off to surface water may also be high. This information indicates that,
apart from surface waters containing more than 50 mg/l nitrates, there are surface waters in
Ireland that should be identified for purposes of Article 3(1) on the basis of known risk
factors. As regards such risk factors, the Commission would refer to Annex I.B of the
Directive. The Commission would also refer to evidence of upward trends in nitrate levels
linked to agriculture in several Irish river catchments.

Ground waters coming within the scope of Annex I.A.2

Just as Annex 1.A.l refers to two main categories of surface water, Annex 1.A.2 refers to
two categories of groundwater: first, those which contain more than the 50 mg/l nitrates;
secondly, those which could contain more than this concentration if action pursuant to
Article 5 ofthe Directive is not taken.

 

The Commission considers that Member States do not have a discretion to omit to identify
waters in the first category unless it can be shown that the waters concerned are not affected
by "pollution" as defined in the Directive. In this regard, official Irish drinking water reports
covering the period from 1991 onwards confirm the existence of certain groundwaters
containing nitrate levels in excess of 50 mg/l. As with surface waters, it would appear that
Ireland seeks to justify the non-identification of groundwaters with high nitrate levels on
the grounds that the nitrate concentrations have been linked to miscellaneous poingsi sources
of pollution (including point agricultural sources) and not diffuse a
their abovementioned letter of 17 July 1995, the Irish authorities attributed high
groundwater nitrate levels generally to "bad housekeeping practices". Incorrectly sited
silage and slurry pits were mentioned as examples. These are "agricultural sources" for the
purposes of the definition of "pollution" in the Directive. Moreover, the Irish groundwaters
containing nitrate levels in excess of 50 mg/l were usually linked to small rural drinking
water supplies, and must reasonably be considered as being potentially significantly
exposed to agricultural sources of nitrate, and thus "pollution" as defined in the Directive.

As regards groundwaters in the second category, Member States must exercise a jJudgment
as to whether these could contain more than 50 mg/l of nitrates if action pursuant to
Article5 is not taken. The abovementioned 1994 study by Teagasc noted that the
groundwaters most at risk of nitrate pollution from agriculture were predominantly in
Galway and reflect the combination of intensive dairying and shallow limestone soils.
Official drinking water reports confirm high nitrate monitoring results in certain water
supplies in this area. This information, as well as other information indicates that, apart
from groundwaters containing more than 50 mg/l nitrates, there are groundwaters in Ireland
which should be identified for purposes of Article 3(1) on the basis of known risk factors.
As regards such risk factors, the Commission would refer to Annex I.B of the Directive.

Eutrophic estuarial and coastal and marine waters coming within the scope of Annex 1.A.3
Zn E AIIH Woastal ac marıne waters coming within Ihe scope of Annex 1.A.5

In applying the criteria for eutrophic estuarial, coastal and marine waters, the
Irish authorities relied on the published review of Ireland's Environmental Research Unit
for the period 1987-1990. However, this review states that "the situation in respect of
eutrophication and algal growth has not been examined in any detail in the surveys
undertaken in the period, with the exception of the studies in Dublin Bay". In the
abovementioned letter of 17 July 1995, the Irish authorities acknowledged that a more
detailed estuarine and coastal waters monitoring programme was needed and indicated
that arrangements were in hand to address this matter. Despite a specific request from
the Commission (see below), the Commission has not received any information on
improved monitoring.

The Commission considers that the obligation set out in Article 3(1) of the Directive
requires the Member States to apply the criteria of Annex I on the basis of adequate and
appropriate data on the waters concerned. It is clear that, because of a lack of adequate
data, the Irish authorities were incapable of properly applying the criteria of Annex 1.A.3 in
respect of eutrophic estuarial, coastal and marine waters.

2, Failure to designate vulnerable zones

Article 3(2) imposes an obligation on Member States, by 19 December 1993, to designate
as vulnerable zones all known areas of land in their territories which drain into the waters
identified according to Article 3(1) and which contribute to pollution. Article 3(4) requires
Member States to review the designation of vulnerable zones, making additional
designations if necessary. Article 3(5) exempts Member States from the obligation to
identify specific vulnerable zones if they establish and apply throughout their territory
action programmes referred to in Article 5.

Ireland has not established and applied action programmes throughout its territory, as it is
entitled to do under Article 3(5) of the Directive. Therefore, the exemption given in
Article 3(5) from the obligation to identify specific vulnerable zones does not arise.

However, Ireland has not designated any vulnerable zones in accordance with Article 3(2)
and/or 3(4).

The lack of designation of vulnerable zones is a consequence of the failure to identify
waters under Article 3(1) ofthe Directive.

The Commission considers that, inasmuch as there is evidence of surface waters and
groundwaters in Ireland affected by, or which could be affected by, "pollution" within
the meaning of the Directive, Ireland is in breach of its obligations under Article 3(3)
(and where polluted waters are detected outside of the initial designation period,
Article 3(4)) in failing to designate vulnerable zones in respect of such waters.

3. Failure to provide information to the Commission

By letter dated 30 October 1998 (X1/025583), the Commission requested Ireland to provide
within two months more details of the data on which Ireland's original decision not to
identify waters for purposes of Article 3(1) was based. It also requested the monitoring data
resulting from the repeat of the monitoring programme required under Article 6(1)(a) of the
Directive and which should have been concluded by 18 December 1997 at the latest. It
further requested Ireland's review, pursuant to Article 6(1)(c) of the Directive, of the
eutrophic status of all Irish fresh surface waters, estuarial and coastal waters and referred to
the abovementioned reference in Ireland's letter of 17 July 1995 to improved monitoring of
estuarial and coastal waters.

On 9 June 1999 Ireland responded, indicating that in January 1997 Irish local authorities
had been directed to carry out a repeat monitoring programme, and that the assessment of
the results was taking longer than originally anticipated. However, it was hoped to finalise
assessments quite shortly and also the review of the eutrophic state of surface waters, as
required under Article 6(1). Since then, the Commission has not heard further from the
Irish authorities.

The Commission considers that the failure by Ireland to provide a satisfactory response to
its request of 30 October 1998 amounts to a failure by Ireland to comply with Article 10 of
the EC Treaty inasmuch as it makes it more difficult for the Commission to carry out the
tasks assigned to it under Article 211 ofthe Treaty.

4. Failure to monitor in accordance with Article 6

For the purposes of designating and revising the designation of vulnerable zones, Article 6
requires Member States to carry out monitoring of nitrate concentrations and to review
the eutrophic state of fresh surface waters, estuarial and coastal waters, according to
specified timetables.

In the absence of a satisfactory response to the abovementioned request of 30 October 1998
for information showing that Ireland has complied with Article 6(1)(b) and (c) of the
Directive, the Commission concludes that Ireland has not fulfilled its obligations under
these provisions.

Conclusions

In conclusion, the Commission considers that Ireland has failed to comply with its
obligations under the Directive.

In these circumstances, the Commission, acting under Article 226 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 226. It may also deliver a Reasoned Opinion if the
observations fail to reach it within the period stated.

Yours faithfully,
For the Commission

 

Member of the Commission

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