Lake Pollution in Ireland- What Lies Beneath?

Lake Pollution in Ireland- what lies beneath?

(Draft paper)

Joanne Blennerhassett

Lecturer in Law, UCD Faculty of Law

LLB (Dub) LLM (NIU)MCIArb, Solicitor

April 13th 2005

Dr. Jack has spoken on the tackling the issue of Eutrophication. I shall follow on by examining the troubled waters that fill Irish lakes and what lies beneath.

The causes and contributors to the problem are the same all over the country. Nutrient loading continues to be the main pressure on our lakes, manifested in the form of eutrophication. Irish authorities recognise that phosphorous is the main challenge to Ireland’s water quality. Eutrophication is one of the biggest water quality challenges in Europe. The problems are not unique to Ireland. However, the problem in Ireland is particularly prominent because of the abundance of lakes here, which used to be of exceptionally good water quality. There has been a rapid decline in the quality of Irish lake water, thus the problem is particularly poignant. Ireland has relatively low levels of industry compared to some European counterparts, so this pollution cannot be blamed solely on industry. EPA reports show a serious and steady decline in water quality over the last thirty years. The latest EPA report is due out at the end of this month. Their previous report was the EPA Millenium Report of 2000. Unfortunately, I do not yet have access to the new findings but indications from the EPA are that there have been no major changes for better or worse in monitoring results since the last report other than an increase in the number of lakes reported on. Reports show overall 23% in an unsatisfactory condition

Causes

As I mentioned, Eutrophication is the greatest threat to lake water quality. The principal sources of phosphate and nitrogen compounds in Ireland are losses from agricultural activities, forestry and municipal and industrial waste discharges. These sources are commonly classified according to the manner of the discharges as “point” and “non-point” sources. Point sources include sewage discharges and the run-off from farm yards. Non point sources category covers widespread losses from land from excessive application of natural or artificial fertilizer, or application of these at inappropriate times.

Classification of lakes

Lake water quality is most commonly assessed by reference to trophic categories under a modified version of the O.E.C.D. scheme, 1982 by setting parameters for the annual average values for total phosphorous, chlorophyll and water transparency-to assess the level of eutrophication and its effects.

Information on lakes is derived mainly from investigations carried out by the Local Authorities, the EPA and the Central and Regional Fisheries Boards.

Four main categories of lakes:

Oligotrophic-Clean lakes-excellent water quality, low poll, little wildlife- Connemara

Mesotrophic- moderate algal growth, more nutrients so support a more varied wildlife- eg Midland lakes; Lough Corrib, parts of Lough Leane Killarney- low poll

Eutrophic- due to increased pollutants- substantial algal growth, significant to high pollution and high levels of impairment of lake (three subcategories of eutrophic- moderate; strong; high)

Hypertrophic- very high algal growth, very high pollution, probably total de-oxygenation and very high impairment of lake

Causes of Lake Pollution:

Human Sewage

Until recently this was a major contributor to lake pollution. To the credit of the government and local authorities, at present and recently, millions has and is being spent upgrading of sewage treatment plants- so this threat is being alleviated with modern treatment facilities. Main cities discharge sewage into the sea 46 %.

After sewage is treated, the residual sludges are spread on agricultural land- happens with 29% of Irish treated sewage (Sweden for example has banned this-reasons:- (1) sewage sludge may contain germs causing hepatitis, intestinal flukes, tapeworms and food poisoning; (2) sludges contain heavy metals posing serious environmental hazards- eg lead; cadmium & mercury.)

A major problem contributing to lake pollution remains the inadequacy of septic tanks. Papers are presently being prepared by the European Commission for a case against Ireland for non-implementation of the Groundwater Directive, specifically regarding infringements in the use of septic tanks. Commission is concerned assessment of sites being inadequate. Standards required of septic tanks need updating from early 90s. No requirements for maintenance of septic tanks- re regularly cleaning, steps to ensure they are not causing pollution. We will no doubt be hearing of further developments on septic tanks as this case against Ireland takes shape.

Agricultural Wastes

Agriculture is the main source of phosphates- fertilizers, animal wastes and silage effluent. They are responsible for 73% of the phosphorous pollutants in Irish lakes- with forestry. Agriculture accounts for 22m tonnes of waste each year

Animal waste – slurry does not undergo treatment and released onto the lands and swept into the lakes by the rivers and groundwaters feeding into the lakes. These waters contain pollutants that can be 1000-5000 times more concentrated and toxic than treated sewage. (Interesting statistics- Cow: 11 galls waste daily (16 times strength of human waste); Pig: 1 gall. Together daily produce 84million gallons- goes

Untreated onto land/ storage problems). Because slurry is spread when there are no crops growing on the land, it is easily washed away.

Fertilizer

When fertilizer is spread on land, up to one third is washed away by rain. Some farmlands requires phosphate, others do not. The only way to find out the needs of each farm is to have the land analysed- most Irish land hasn’t been analysed, slurry and fertilizer application is routine. As a result, many Irish soils are being supersaturated with phosphate. Now, many Irish rivers now have FIVE times the concentration of phosphate necessary to cause eutrophication. Need binding guidelines/ byelaws re fertilizer and slurry spreading.

Agricultural Policies

Environmental considerations play an increasing part in agriculture policies. Measures such REPS- rural environment protection scheme- to encourage farming activities in an environmentally manner. De-coupling/ CAP reform- which will force farmers to get out of business and consolidate. Questionable whether REPS will be sufficient to impact on pollution. It will take 3 or 4 years for improvements to be visible. Farming practices overall arming need to improve. Intensification of farming is more of a concern and this will not be alleviated by REPS. The Farming industry remains largely unregulated- ironically, as it is the major contributor to water pollution.

A study by the Minnesota Pollution Control Institute indicates - 1 lb of phosphorous from ANY source is capable of producing 500lb weight of weed in waters. EPA Millenium report showed farming industry responsible for 96,000 tonnes phosphorous p.a. Even allowing for only 10% of that amount being released from farmland to water- this amounts 10,000 Ts p.a. entering lakes and rivers from farming industry.

County Councils say that there are improvements. Local authorities try to negotiate to encourage farmers to comply through dialogue rather than through prosecutions. County Councils talk of introducing bye-laws to dictate timing of spreading slurry etc- v few in effect eg Kerry – draft Bye laws, never adopted. Suggestions also that nitrate fertilizer only to be spread with permit from Council that depends on soil analysis. Also, the introduction of compulsory buffer zones on agricultural land- away from streams, rivers and lakes would help greatly. Overall funding and assistance are required, ideally tailored to each farmer’s needs. Storage remains problematic. Very few have full storage (the ideal of 24 weeks) - farmers have no alternative. Under the Nitrates Directive- Ireland drafted a national strategy with proposals for Ire to comply. This was rejected by the Commission and back to Dept of Agric- as the 16 week storage proposals were inadequate.

Silage effluent is another contributor- and one of the most damaging because it is in produced in Summer when rivers and streams are often at their lowest levels. In excess of 24m tonnes of silage are produced annually in Ireland

These problems urgently need to be addressed.

Forestry

Fertilizers spread on forest plantations are a very serious source of lake pollution. Before planting manually applied fertilizer are added to soils- it is estimated that 20% of this rock phosphate may be lost over the first three years. More is often applied by helicopter-(ariel fertilization). The fertilizer is washed away by rain, or wind, or on tree-less ground end up in waterways- making its way into lakes. Forestry practices are a large contributor to the phosphorous entering lakes- and fertilizer run-off can directly result in algal blooms.

Trenches in plantations are excavated to prevent water logging. The excavated soil may be washed away by wind and rain, then flow into adjoining streams, eventually reaching the lakes. Tonnes of mud and spoil entering the lakes undoubtedly contribute to their pollution. Also entering the waters are the many pesticides commonly used in forestry. State and EU Environmental Forestry Guidelines must be complied with. When the trees are felled, the areas from which they are harvested become point sources of pollution, due to the 1000% nitrate release resulting in acidification.

Ireland was found guilty in the ECJ in Sept ’99 for persistent transgressions in forestry management.

Bodies & Legislation

What can/ is being done about this?

Our Government has stated that the pollution of inland waters is the greatest environmental threat facing Ireland at present. Let’s look at Bodies involved and Legislation-

Agencies protecting the environment- large no. of personnel- - over 8,000 people directly involved with overseeing and protecting our environment From EPA; Office of Environmental Enforcement; Dept of the Environment; Fishery Boards; - that number is not even including local authorities.

Legislation

Enough legislation to cover all lake pollution offences. Lack of enforcement- main problem. Water Pollution Acts; Waste Mgmt Acts; Regs; Directives.

Local Govt (Water Poll) Acts 77 & Amendment Act ’90- both create criminal offence of “causing” polluting matter to enter waters

Combined Fisheries Acts 1959-97- Prosecution by local authorityy; regional board; or ANY body/ person affected

Regulations- E.C. (Water Policy) Regs 2003, S.I. 722 of 2003

Protection of Environment Act 2003 and the EPA Act 92 as amended- created the Office of Environmental Enforcement which has strong enforcement powers and can prosecute local auths that are inactive. These provisions empower he OEE to request a local authority to furnish information on the exercise of its statutory functions or enforcement of legislation (63.1) and the very strong power under (63.5)- the power of the OEE to issue a direction to a local authority where it is not carrying out its function as expected issue directions to local authorities. Under this Act a local authority may be prosecuted for failure to carry out its functions as required. There have been a number of prosecutions of local authorities under this section already, in the field of waste management. But in theory, there is potential for this to be used for water pollution as well ( arguably agricultural/ human/ industrial waste matter polluting lakes could fall into waste mgmt category).

Legislative Controls

Statutory responsibility for water management rests primarily with local authorities-

EPA is responsible for water pollution by licensable activities may – eg intensive pig production units. Further policing by Office of Environmental Enforcement.

Regional Fisheries Boards can also prosecute for water pollution offences but do not have the range of powers available to local authorities.

Problem up until recently has been enforcement. There was no single body policing environmental pollution. There were sporadic County Council or Fishery Board prosecutions, or EPA prosecutions for licensable activities. Local authority prosecution levels are low. (see EPA enforcement policy). Agencies involved oversee by licensing, monitoring, voluntary guidelines, recommendations, codes of practice etc. In addition, those policing pollution are State employees. Those responsible for causing the bulk of the pollution- i.e. agriculture, forestry and the county councils (sewage) are also heavily state-funded, these agencies are slow to criticise each other- and very rarely prosecute each other. Environmental programmes which sound strong, are not very effective as they are based on continued monitoring or testing. These programmes are well intentioned, but benign when it comes to tackling the pollution.

The EPA has held the line and pointed the finger where it should be pointed over the years. The solutions are obvious- phosphates from farming, sewage, phosphates and farming must be reduced. In practice, the solution is not so easy. Competence to address issues is vested in councillors, or fishery bodies. When local authorities try to enforce laws, there are strong lobbies of protest, particularly from the farming community (we have seen the difficulty in placating them in situations such as the Nitrates Directive). Vested interests such as these exercise a veto on measures especially with powerful farming interests. Ireland is striking as the rural lobby has a particular strength that it wouldn’t have elsewhere- also there is a marked absence of rural planning for agriculture. But the farming community and Dept of Agriculture are now more aware and mostly being more responsible.

Legislation/ Bodies – summary

Responsibility for enforcement of legislation is shared between EPA and Local authorities. EPA has the role of overseeing the activities of the local authorities. The local authorities have the direct responsibility of enforcing the main water pollution legislation, and waste permits. Where risk of pollution, local authorities issue section notices- formal notices instructing the carrying out of various measures to minimise pollution; they are a threat of legal action. Those in receipt of these notices have 14 days to make representations to the local authority and where they fail to do so, further action will be taking, in terms of legal proceedings. Local authorities try to use these notices and negotiations and other enforcement means as much as possible and they are reluctant to prosecute- prosecution is very much seen as a last resort- few cases eg -blatant release of slurry. There is a graduated approach to enforcement.

As I have discussed, there have been innovative advances within the past year with the advent of the Office of Environmental Enforcement, as a branch of the EPA. It is hoped this will fill the vacuum in enforcement. It establishes an environmental management system to monitor and supervise the environmental performance of local authorities with a very hands-on approach. Within the OEE there is another innovation- the enforcement network- for co-operation and collaboration between all bodies with environmental responsibilities- local authorities; fisheries boards; health boards. Together they work towards a consistent approach in environmental protection. This has been initiated and spear-headed by the OEE- to ensure overall accountability on all EU and domestic legislation and a consistent, coherent approach to enforcement.

Within the Enforcement Network there are various working groups on particular issues and there is one on water which is at the early stages of development. It will be addressing issues such as the Phosphorous Regulations and cross- compliance

Finally, from the perspective of the EPA and OEE- there is the power of the OEE under the EPA Acts as discussed.

Together, these measures will certainly help copper-fasten the overall enforcement of legislation.

EU Legislation-Directives incl–

Until recently, there seemed to have been an unwillingness to take action nationally, except where compelled to do so by legal proceedings. Efforts were being made but not at an acceptable level. Hopefully, this will improve with recent advances.

There is increasing pressure from Europe – which will no doubt further focus the urgent call for reform and force action.

Dangerous Substances (76/464/ EEC)

Groundwaters (80/68/ EEC)

Urban Waste Water Treatment (91/271/EEC)

Nitrates (91/676/ EEC)

Several cases pending against Ireland under a number of these- let’s examine briefly:

Pressure coming from Europe

Nitrates Directive Decision Judgement against Ire March ’04.

Up to seven or eight years ago, governement denied any nitrate pollution problems. Under Directive Ireland was to identify nitrate vulnerable zones. Commission was dissatisfied with Irish efforts and as a result of the ECJ decision, the govt declared the WHOLE country as nitrate vulnerable.

Under Art 228 – the 1st letter of formal notice issued in Dec to Ireland, to implement Court’s decision. This was a warning letter for not complying with judgement issued last year which requires Ireland to adopt nitrates Action Prog. Department of the Environment presented the Commission with an outline plan which was rejected in January. The Commission was satisfied with a no. of steps taken in terms of the whole country designated nitrate vulnerable but the unresolved issue that there is still no compliance on nitrate action programme Ireland. The Commission maintains the action plan is deficient and also not yet translated into binding rules for farmers. Ireland was given 3 months to revert with another proper action plan- this expires imminently- Ireland had until 22nd March to comply- has been extended by one month- end April now deadline.