COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 09 -02- 2001
C(2000) 4386 final

REASONED OPINION

addressed to Ireland, pursuant to Article 226 ofthe EC Treaty,
relating to the failure to fulfil its obligations under Council Directive 91/676/EEC
of 12 December 1991 concerning the protection of waters against pollution
caused by nitrates from agricultural sources

REASONED OPINION

addressed to Ireland, pursuant to Article 226 ofthe EC Treaty,

relating to the failure to fulfil its obligations under Council Directive 91/676/EEC

of 12 December 1991 concerning the protection of waters against pollution
caused by nitrates from agricultural sources

Article 1 of Council Directive 91/676/EEC of 12 December 1991 concerning the
protection of waters against pollution caused by nitrates from agricultural sources
(hereinafter referred to as: “the Directive””) has the objective of:

- reducing water pollution caused or induced by nitrates from agricultural
sources; and

- preventing further such pollution.
Article 2 ofthe Directive defines a number of terms used in the Directive.

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

Article 3(2) of the Directive 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. They shall notify the Commission of this initial designation
within six months.

Article 3(4) of the Directive requires Member States to review and, if necessary,
revise and add to the designation of vulnerable zones as appropriate and at least
every four years, to take into account changes and factors unforeseen at the time of
the previous designation. They shall notify the Commission of any revision or
addition to the designations within six months.

Article 3(5) of the Directive 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.

Article 5 of the Directive relates to action programmes which must be applied to the
vulnerable zones designated under Article 3.

Article 5(1) requires Member States to establish action programmes in accordance
with specified time-frames.

Article 5(3) requires action programmes to take into account available scientific and
technical data and environmental conditions in the relevant regions of the
Member State concerned.

Article 5(4) imposes a four-year implementation deadline for action programmes
and stipulates that action programmes should consist of certain mandatory measures.

Article 5(5) requires Member States, where necessary, to take additional measures
within the framework of action programmes.

Article 5(6) requires Member States to draw up and implement suitable monitoring
programmes to assess the effectiveness of action programmes.

Article 5(7) requires Member States to review and, if necessary, revise action
programmes at least every four years.

Article 6(1) of the Directive, for the purposes of designating and revising the
designation of vulnerable zones, requires Member States:

(a) within two years of notification of the Directive to monitor the nitrate
concentration in freshwaters over a period of one year:

(i) at surface water sampling stations, laid down in Article 5(4) of
Directive 75/440/EEC and/or at other sampling stations which are
representative of surface waters of Member States, at least monthly,
and more frequently during flood periods;

(ii) at sampling stations which are representative of the groundwater
aquifers of Member States, at regular intervals and taking into
account the provisions of Directive 80/778/EEC;

(b) to repeat the monitoring programme outlined in (a) at least every four years,
except for those sampling stations where the nitrate concentration in all
previous samples has been below 25mg/l and no new factor likely to increase
the nitrate content has appeared, in which case the monitoring programme
need be repeated only every eight years;

(c) to review the eutrophic state of their fresh surface waters, estuarial and
coastal waters every four years.

Article 6(2) of the Directive provides that the reference methods of measurement set
out in Annex IV to the Directive shall be used.

Article 12(1) of the Directive requires Member States to bring into force the laws,
regulations and administrative provisions necessary to comply with the Directive
within two years of its notification, and to forthwith inform the Commission thereof.

Article 12(2) of the Directive provides that, when Member States adopt these
measures, they shall contain a reference to the Directive or shall be accompanied by
such reference on the occasion of their official publication.

Article 12(3) requires Member States to communicate to the Commission the texts
of the provisions of national law which they adopt in the field covered by the
Directive.

The Directive was notified to the Member States on 19 December 1991.

Article 10 of the Treaty establishing the European Community, inter alia,
provides that Member States shall facilitate the achievement of the Community's
tasks.

By letter dated 14 December 1993!, Ireland provided details of how it proposed to
comply with the requirements of the Directive, in particular referring to guidance to
Irish local authorities (the statutory pollution control authorities) on the
establishment of a monitoring programme set out in a circular letter, WP7/92.

On 29 May 1995, the Commission notified a letter of formal notice to Ireland
(ref. SG(95) D/6707) in respect of Ireland’s failure to communicate the laws,
regulations and administrative provisions adopted to comply with the Directive, its
failure to designate vulnerable zones, and its failure to establish a code or codes of
good agricultural practice.

By letter dated 17 July 19952, Ireland purported to inform the Commission in
accordance with Article 12 of the Directive of the laws, regulations and
administrative provisions adopted in Ireland for the purpose of complying with the
Directive. It again stated that it had brought the requirements of the Directive to the
attention of local authorities in October 1992 by means of the abovementioned
circular letter, WP7/92. The Irish authorities pronounced themselves satisfied that,
further to monitoring and assessment of water quality data, no waters coming within
Article 3(1) of the Directive had been identified and, in these circumstances, the
designation of vulnerable zones under Article 3(2) did not arise. Nor was Article 5
applicable, in the absence of any designated vulnerable zones. The Irish authorities
also confirmed that work was progressing on a code of good agricultural practice.
As regards transposition into Irish law, they referred the Commission to Sections 12
and 22 ofthe Local Government (Water Pollution) Act, 1977 (hereinafter referred to
as: “the Water Pollution Act, 1977”) and Section 21 of the Local Government
(Water Pollution) (Amendment) Act, 1990 (hereinafter referred to as:
“the Water Pollution (Amendment) Act 1990”).

By letter dated 15 August 1996, the Irish authorities communicated to the
Commission Ireland’s Code of Good Agricultural Practice prepared pursuant to
Article 4 of the Directive.

On 21 October 1996, the Commission notified a supplementary letter of
formal notice to Ireland (SG(96) D/9192) in which it drew attention to deficiencies
in Ireland’s transposition of the Directive as well as Ireland’s practical failures to
monitor in accordance with Article 6 of the Directive, identify waters and designate
vulnerable zones in accordance with Article 3 of the Directive and establish action
programmes in accordance with Article 5 ofthe Directive.

Letter dated 14 December 1993 from Mr. Jim Humphreys, Environment Attache, to
Mr L.J. Brinkhorst, Director-General, DG XI.

Letter dated 17 July 1995 from Ms Mary O’Donoghue, Environment Attache, to
Mr Marius Enthoven, Director-General, DG XI.

Letter dated 15 August 1996 from Ms Mary O’Donoghue, Environment Attache, to the

Secretary-General of the Commission.
4

By letter dated 14 February 1997, the Irish authorities communicated to the
Commission a further circular letter, WP 1/97. This enclosed a ministerial direction
in relation to the monitoring of waters.

By letter dated 30 October 1998 (X1V025583), the Commission requested
information from Ireland on the implementation of the Directive, asking for a
response within two months.

On 14 July 1999, the Commission notified a second supplementary letter of
formal notice to Ireland (SG(99) D/5217) addressing the failure to identify waters in
accordance with Article 3(1), the failure to designate vulnerable zones in accordance
with Article 3(2) and/or Article 3(4), the failure to properly respond to the
Commission's request for information dated 30 October 1998 (X1/025583), and the
failure to monitor in accordance with Article 6 ofthe Directive.

By letter dated 25 November 19995, the Irısh authorities responded, confirming that
an expert panel had identified waters for purposes of Article 3 in several counties,
e.g. Carlow, Cork, Kerry, Louth, Waterford, that the exercise of identifying waters
was continuing, and that work was in progress to make designations for the
purposes of Article 3(2). The Irish authorities also referred to the monitoring of
estuarine and coastal waters, indicating that work was progressing and that the
Commission would be kept informed.

In 1998, the Commission engaged the preparation of a study in relation to Ireland
entitled: "Verification of the WVulnerable Zones Identified Under the
Nitrates Directive and Sensitive Areas Identified Under the Urban Waste Water
Treatment Directive" (hereinafter called "the verification study"). Similar studies
have been undertaken for other Member States, with a view to, inter alia,
confirming whether a consistent and correct approach has been taken to the
identification of vulnerable zones across the European Community. In March 2000,
the verification study was finalised for Ireland. A copy was forwarded to the
Irish authorities on 4 July 2000. According to the verification study, Ireland has
failed to identify all the waters which it should have done in accordance with
the Directive.

On 25 July 2000, the Commission notified a third supplementary letter of formal
notice to Ireland (SG(2000) D/105321), in the light of the verification study and
other considerations, again addressing the failure to identify waters in accordance
with Article 3(1), the failure to designate vulnerable zones in accordance with
Article 3(2) and/or Article 3(4), the failure to properly respond to the Commission's
request for information dated 30 October 1998 (XV/025583), and the failure to
monitor in accordance with Article 6 of the Directive.

Letter dated 14 February 1997 from Mr M. Egan, Water Director, Irish Department of the
Environment, to Mr Grant Lawrence, DG XI.

Letter dated 25 November 1999 from Mr Pat Fenton to the Secretary-General of the Commission.
5

Sm

By letter dated 26 September 2000, the Irish authorities requested an extension of
time to respond to the Commission's letter of formal notice of 25 July 2000. By
letter dated 16 October 2000 (SG(2000) D/202831), the Commission agreed to an
extension until 10 November 2000. To date, Ireland has not responded to this third
supplementary letter of formal notice.

As at present informed, the Commission considers that Ireland has failed to take all
the necessary measures to comply with Articles 3, 5, 6 and 12 ofthe Directive. The
Commission’s reasons are set out below.

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 the abovementioned 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) of the Directive had been identified by
them. In the abovementioned letter of 25 November 1999 responding to the
abovementioned letter of formal notice of 14 July 1999, the Irish authorities
indicated that an expert panel appointed by the Irish authorities had identified waters
coming under the terms of Article 3(1) in several Irish counties. However, these
waters were not specified in the said letter or in subsequent correspondence, nor is it
evident that the identifications by the expert panel have any legal standing in Ireland.
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 I. In so
far as Ireland may argue that it has identified waters in accordance with Article 3,
the Commission would contend that Ireland has failed to notify the Commission of
these waters in accordance with Article 12 ofthe Directive, that Ireland has failed to
identify these waters with geographical completeness, and that it has not identified
these waters within the time-frame foreseen by Article 12 of the Directive. Further
details of Ireland’s failure to identify waters are set out below.

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

Annex I.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 (i.e. a minimum of 50mg/l); secondly, those which could
contain more than this concentration if action pursuant to Article 5 of the 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, the
Commission notes that, in the abovementioned letter of 17 July 1995, the
Irish authorities confirmed that, of 1461 river sampling points in the period
1987-1990, 30 (or 2%) showed concentrations greater than 50mg/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

6

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 as a significant
activity in the catchments of all the Irish rivers concerned, waters showing
concentrations greater than 5Omg/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 50mg/l of nitrates if action pursuant to
Article 5 of the Directive is not taken. In this context, the Commission would refer
to the preventive objective mentioned in Article 1 ofthe Directive.

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
50mg/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 AnnexIB of the Directive. The
Commission would also refer to evidence of upward trends in nitrate levels linked to
agriculture in several Irish river catchments.

In addition to the foregoing, the Commission would point out that, with reference to
the criteria in Annex LA.l, the verification study identified a number of rivers that
should have been identified for purposes of Article 3(1) of the Directive. These are
shown on Table 1.3. of the verification study and comprise the rivers
Termonfeckin, Broadmeadow, Aghalona and Moyle. The Commission does not
necessarily consider this list to be exhaustive.

Ground waters coming within the scope of Annex LA.2

Just as Annex I.A.] 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
50mg/l nitrates; secondly, those which could contain more than this concentration if
action pursuant to Article 5 of the 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 50mg/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 point sources of pollution
(including point agricultural sources) and not diffuse agricultural pollution. In their
abovementioned letter of 17 July 1995, the Irish authorities attributed high

7

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 50mg/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. It would also appear that the Irish authorities
are not identifying groundwaters with high nitrate levels on the basis that these
ground-waters are used to provide drinking water to small populations. In this
regard, the Commission would refer to the judgement of the Court of Justice of the
European Communities of 7 December 2000 in Case C-69/99, Commission v
United Kingdom in which the Court inter alia noted (paragraph 23): "In the present
case, it is clear from the wording of Article 3(l) and (2) and Article 5 of the
Directive, read in conjunction with paragraphs A.l and A.2 of Annex I, that the
Member States are obliged to do the following:

= identify as waters affected by pollution, or as waters which could be affected
by pollution if action pursuant to Article 5 of the Directive is not taken, not
only waters intended for human consumption but also all surface
freshwaters and groundwaters which have or could have a nitrate
concentralion in excess of 30 milligrams per litre (Article 3(1))."

As regards groundwaters in the second category, Member States must exercise a
judgment as to whether these could contain more than 50mg/l of nitrates if action
pursuant to Article 5 is not taken. In this context, the Commission would again
mention the preventive objective referred to in Article 1 ofthe Directive.

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. The Commission would also mention other official information (for example,
local authority measures reports for combating phosphorous pollution, and local
authority groundwater protection plans) referring to high groundwater pollution
risks in other areas where agriculture is one of the principal activities. This
information as well as other information indicates that, apart from groundwaters
containing more than 50mg/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.

In addition to the foregoing, the Commission would point out that, with reference to
the criteria in Annex L.A.2, the verification study identified a number of specific
groundwaters that should have been identified for purposes of Article 3(1) of the
Directive. These are shown on Table 1.4. of the verification study. The Commission
does not necessarily consider this list to be exhaustive.

3.1.3 Eutrophic_or at-risk natural freshwater lakes, other freshwater bodies, estuaries.

coastal waters and marine waters coming within the scope of Annex 1.A.3

3.1.3(a) Estuaries, Coastal Waters and Marine Waters

 

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) ofthe Directive
requires the Member States to apply the criteria of Annex I on the basis of adequate
and appropriate data on the waters concerned.

With reference to the criteria in Annex 1L.A.3, the verification study identified a
number of estuaries, coastal waters and marine waters that should have been
identified for purposes of Article 3(1) of the Directive. These are detailed in
Annex E of the verification study, and comprise those points corresponding to the
following Irish codes: HY06,07, 09, 12, 13, 14, 15, 16, 19, 20, 23, 24, 25, 27. The
Commission does not necessarily consider these to be exhaustive.

3.1.3(b) Freshwaters

As regards natural freshwater lakes and other freshwater bodies, it is evident from
the many official reports published to date that there is a widespread and worsening
problem of eutrophication in Ireland. In particular, the Commission would refer to
the most recent national report on water quality in Ireland, prepared by
Ireland's Environmental Protection Agency for the period 1995-1997 and covering
13 200 kilometres of river length as well as the most important lakes®.
Commenting on a distinct trend of continually increasing slight and moderate
river pollution and a recent reversal of the trend of decreasing serious pollution
which had been gradually falling off over the years, the Report notes:
“The upward trend in the extent of slight and moderate pollution is attributed
mainly to eutrophication by organic (animal manure) and artificial fertilizers and
to a lesser extent by point source (i.e. sewage) discharges. The recent slight
increase in the extent of seriously polluted channel is attributed mainly to
suspected sewage discharges and to a lesser degree to suspected agricultural
activities". Similar comments are made in respect of lake water quality.

6 Water Quality in Ireland, 1995-1997, Environmental Protection Agency, 1999,

ISBN 1-899965-97-1.
9

Despite this, the Irish authorities have discounted the need to identify eutrophic
freshwaters or freshwaters at risk of eutrophication according to Article 3(1) by
reference to the criteria of Annex I.A.3 of the Directive. This reflects a view of the
Irish authorities that the nutrient phosphorous is the principal factor in such
eutrophication, and that the role of nitrates does not warrant action pursuant to the
Directive. Having considered the matter, the Commission does not concur with this
view for the following reasons.

In the first place, it is evident from the explicit references to freshwater bodies in
Annex LA.3 of the Directive that the Commission legislator contemplated the
identification of such waters for the purposes of Article 3(1).

In the second place, attributing freshwater eutrophication uniquely to phosphorous is
over-simplistic. Nitrates and phosphorous can both be “limiting factors” in the
same surface freshwaters, depending on seasonal cycles and the types of plant
involved, for example, macrophytes with roots can take nitrates from water and
phosphorous from sediments, so phosphorous loses its limiting effects.

In the third place, experiments have shown that it is not realistic to hope to reduce
eutrophication by controlling only phosphorus in fresh waters: action must also be
taken for nitrates (moreover, measures under the Directive will also, indirectly,
help to reduce or control phosphorous discharges because phosphorous is a
constituent of nitrogen-containing materials such as manures covered by the
Directive and because the measures provided for under the Directive — for
example, buffer strips, soil winter cover — are very effective against phosphorous
losses by erosion and run-off).

In the fourth place, reflecting factors such as high precipitation and naturally low
nutrient levels in many Irish soils, the "background" (i.e. natural) levels of nitrates
in Irish rivers and lakes are generally low (in the range 0.2 - 2mg/l). In the context
of Annex I.B.l of the Directive, this is something that should have been taken
into account by the Irish authorities when applying the criteria of Annex 1.A.3
("the physical and environmental characteristics of the water and land"),
especially where there is a trend of rising nitrate concentrations which are
significant by reference to the background levels, for example an annual increase
of 0.5-Img/ NO3/l.

In the fifth place, according to the Irish Environmental Protection Agency, annual
nitrate fertilizer use shows a constant upward trend (moving from 370 000 tonnes
around 1990 to 410 000 tonnes in 1995), and is sometimes used 20-30% over
recommended rates on grassland. An average use of 103 kg N from fertilizers and
87kg N from manure (grazing and spreading) results in a quite intensive
fertilization of almost 200 kg N/ha/year.

In the sixth place, the current eutrophic state of certain Irish surface freshwaters as
well as the constantly rising nitrate concentrations in others points to the need to
identify waters pursuant to Article 3(1). By way of example of currently eutrophic
Irish surface waters under heavy agricultural influence, the Commission would
cite Inniscarra and Carrigadrohid reservoirs along the River Lee in Cork. By way
of example of surface freshwaters with constantly rising nitrate concentrations in