Appendix V
The Implementation of the Nitrates Directive in Ireland

Outline of the Directive

The objectives of the Nitrates Directive are

• to reduce water pollution caused or induced by nitrates from agricultural sources and
• to prevent further such pollution.

In order to achieve these objectives Member States must identify waters affected by nitrate pollution from agriculture and designate these areas as "Nitrate Vulnerable Zones". The criteria for designation are either a concentration of nitrate above 50 mg/l in fresh surface waters and groundwater, or eutrophication, or a water which may become one of these in the near future, including estuaries, coastal waters and marine waters. The agricultural areas which drain into these waters, and which can be said to contribute to pollution have to be designated as vulnerable zones. The process of the identification of waters, and the designation of vulnerable zones was to be completed by 20.12.1993. A revision was to take place every four years thereafter. In the designated zones Member States must draw up Action Programmes which contain mandatory restrictions on agricultural practices which must prevent further nitrate pollution from occurring, including:

• the stipulation of maximum quantities of amount of livestock manure that can be applied to the land each year, including by the animals themselves, i.e. 210 kg/ha during the first four-year action programme and 170 kg/ha during the second four-year action programme;
• the requirement for the land application of fertilisers to be based on a balance between the requirements of the crops and the supply to the crops from the soil and from fertilisation;
• the requirement for each farm to have sufficient livestock manure storage capacity for the periods when they are not permitted to apply the manure to land.

Most of these mandatory restrictions should have been in place by the end of 1995. Member States are also under the obligation to monitor nitrate concentrations of waters to assess the impacts of the measures taken.
Member States have a choice of either designating the whole of their territory under Article 3(5) of the Directive - which will not then be labelled a Vulnerable Zone - or designating Vulnerable Zones based on the results of their monitoring programmes. The requirements for these areas are, however, exactly the same, except with regard to the monitoring of waters. Member States are exempted from the requirement to identify specific vulnerable zones if they establish and apply action programmes throughout their national territory.

Table 1 shows the timetable for the implementation of the Directive, the stipulated completion dates, the measures completed by Ireland and the assessment by the Commission of the conformity of the measures.

Measures taken by Ireland pursuant to the Nitrates Directive

Transposition into national law

There is no specific law which transposes the Nitrates Directive into national law. The reasoning communicated to the Commission is that there is a sufficient legal base in existing water pollution legislation (Walsh, pers. comm., 1998).

Monitoring, Identification of Waters and Designation of Vulnerable Zones

The Summary Report submitted to the Commission by Ireland under Article 11 (CEC, 1997a) states the following: "In October 1992 Local Authorities were instructed to monitor waters for the purposes of the Directive. Specific guidance was given on particular aspects of the monitoring. This included an instruction to cease monitoring for the purposes of the Nitrates Directive if evidence came to light in the course of monitoring and investigation that the source of the nitrate was non-agricultural or from an agricultural point source.

Following analysis of the results of this monitoring by local authorities, and other information, such as published reports and geographic information systems for farming intensity, and following consultation with the Environmental Protection Agency, the Department of the Environment concluded that no waters coming within the terms of Article 3.1/Annex I had been identified, and, in the circumstances, the designation of vulnerable zones was not required at the time. Nevertheless there remain areas of concern. For certain rivers such as Aghalona, Munster Blackwater, Lerr, Moyle, Owenduff and Stoneyford Stream concentrations of nitrate are above 40 mg/l. These rivers have been targeted for careful examination at the next review. For a small number of groundwater sources concentrations of nitrate are above 40 mg/l. However these are considered to be due to what are described as “bad housekeeping practices” such as incorrect sitings of silage or slurry pits and seepage from septic tanks. Although there are eutrophication problems in some Irish lakes these are not considered to be due to nitrogen compounds, rather to increased supply of phosphorus.

For estuarine, coastal and marine waters the assessment relied on the Environmental Research Unit’s review covering the period 1987 to 1990. This concluded that for the sixteen tidal waters assessed serious pollution is of very limited occurrence and any problems identified are not caused by sources coming under the remit of the Nitrates Directive. The Irish Authorities acknowledge that there is a need for a more detailed estuarine and coastal waters monitoring programme". Information gathered as part of the implementation of the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention) is likely to be used for the purposes of identifying 'Nitrate Vulnerable Zones' in the future (Goodchild, pers. comm. 1998).

The Local Authorities carried out a further monitoring programme for the purposes of the Directive between April 1997 and March 1998. The Department of the Environment is currently in the process of evaluating the monitoring data (Walsh, pers. comm. 1998). On the basis of the results the designation of vulnerable zones and the implementation of action programmes including a mandatory Code of Good Agricultural Practice within these zones may become necessary in certain regions.

Code of Good Agricultural Practice

A Code of Good Practice to Protect Waters from Pollution by Nitrates was published jointly in July 1996 by the Department of Agriculture and Food and the Department of the Environment. The code prescribes methods to prevent or minimise the pollution of waters from nitrates by adopting certain farm waste and nutrient management techniques in the storage of organic wastes, silage, dungstead and farmyard manure and soiled water.

Action Programmes

As no vulnerable zones were designated, there was no obligation under the Directive to draw up action programmes (CEC, 1997a).

Conformity of the measures taken

Transposition into national law

According to the Commission the implementing legislation notified to the Commission is not as specific as required by the Directive (Goodchild, pers. comm., 1998).

Monitoring, Identification of Waters and Designation of Vulnerable Zones

The fact that information submitted by Member States in their Summary Reports is presented in the report by the Commission is "not be taken as a sign that the approach adopted (or not adopted) by a Member State in the implementation of the Directive is approved by the Commission" (CEC, 1997a).

Indeed, questions remain as to the validity of the instruction of the Local Authorities "to cease monitoring for the purposes of the Nitrates Directive if evidence came to light in the course of monitoring and investigation that the source of the nitrate was … from an agricultural point source" (CEC, 1997a). No provision is made for this approach in the Nitrates Directive.

According to the Commission the 'No Zones' approach taken by Ireland is legitimate (Goodchild, pers. comm. 1998). As Ireland has not designated any vulnerable zones there is no requirement in the Directive for action programmes. However, the Commission stresses that the 50mg/l nitrates level is likely to 'be significantly too high to reduce eutrophication" and is therefore "not considered to be the defined limit in the Directive" (CEC, 1997b). This would appear to indicate that the Commission advises Member States to apply more strictly the precautionary principle on which some of the stipulations in the Nitrates Directive are based.

In March 1997 the Commission decided to send a Reasoned Opinion on the basis of Article 169 of the Treaty of Rome for having national implementing legislation that was not as specific as required by the Directive, for the incorrect monitoring of waters for nitrates, the failure to identify vulnerable zones and the failure to establish action programmes. This decision was publicised but has yet to be executed. Any legal case taken by the Commission requires a detailed technical examination of the situation. The pace of the proceedings depends on the nature of the infringements, the degree of dialogue between the Member State and the Commission and the provision of sufficient information and evidence by both the Member State and relevant non-governmental organisations.

References

CEC (1997a): Report of the Commission to the Council and European Parliament. Measures Taken pursuant to Council Directive 91/676/EEC concerning the Protection of Waters against Pollution caused by Nitrates from Agricultural Sources. Summary of Reports submitted to the Commission by Member States under Article 11. Brussels.

CEC (1997b): The Implementation of Council Directive 91/676/EEC concerning the Protection of Waters against Pollution caused by Nitrates from Agricultural Sources. COM (97) 473 final. Brussels 1.10.1997.

Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources. Official journal NO. L 375 , 31/12/1991.

Personal communication:
Walsh, Tom, Department of the Environment - Water Quality Section. June 1998
Goodchild, Robert, European Commission, DG11, Water Protection Section. June 1998