Water Pollution: Tackling the Issue of Eutrophication.
Brian Jack
Introduction.
Eutrophication is an environmental problem that affects water bodies in both the
Republic of Ireland and Northern Ireland. In the Republic of Ireland, the
Environmental Protection Agency has reported that:
“Eutrophication, or nutrient enrichment, is the principal threat to water quality in Irish
lakes.”1
Similarly in Northern Ireland, a recent consultation paper noted that:
“Northern Ireland faces a series of water quality problems affecting rivers and lakes
and extending into marine waters. The largest and most widespread of these is
nutrient enrichment arising from too much nitrogen, largely in the form of nitrate, and
phosphorous entering the water. This causes an undesirable disturbance to the water’s
ecology resulting in a phenomenon known as eutrophication.”2
However, eutrophication is not merely an environmental problem within Ireland; it is
also a problem that has occurred throughout the European Union. For example the
European Environment Agency has stated that:
“The main problems affecting the ecological quality of European lakes and reservoirs
are acidification due to atmospheric deposition and increased levels of nutrients,
causing eutrophication.”3
This paper will examine the position that measures to counter eutrophication adopt
within the European Union’s broader environmental policy. The paper is divided into
three sections. Section one examines the concept of eutrophication, its causes and also
its prevalence in Ireland. Section two sets out the legislative framework that the
European Union has adopted in order to tackle this environmental issue. Finally,
Section three then considers a number of recent decisions of the European Court of
Justice in relation to eutrophication and examines their implications for Irish
Environmental Law.
1
Environmental Protection Agency, Water Quality in Ireland 1998-2000, Environmental Protection
Agency, Wexford: 2002 at p.35. See also Environmental Protection Agency, Ireland’s Environment
2004. Environmental Protection Agency, Wexford: 2002 at p.219
2
Department of the Environment & Department of Agriculture and Rural Development, Nitrates
Directive: Consultation Paper on Proposed Action Plan Measures for the Protection of Northern
Ireland’s Waters. Jointly published by the Department of the Environment and the Department of
Agriculture and Rural Development, Belfast: 2005 at p.5
3
European Environment Agency, Europe’s Environment: The Second Assessment. Office for Official
Publications of the European Communities, Luxembourg: 1998 at p.196
1
1. Eutrophication as an Environmental Issue.
The principal source of water pollution in Ireland is organic, biodegradable material
derived from domestic sewage, industrial sites and run- off from agricultural and
urban land surfaces.4 One of the consequences of such pollution is that it carries a
number of nutrients, mainly nitrogen and phosphorous, into Ireland’s waterways.
These nutrients already occur naturally in rivers and lakes, at background levels.
However, the effect of pollution, in introducing enhanced nutrient levels, can be to
cause eutrophication.
Eutrophication occurs as a result of a process through which the higher nutrient levels
stimulate the growth of aquatic plants, especially algae, on the surface of still or slow
moving water bodies.5 This growth can particularly affect lakes and coastal areas such
as estuaries. The impact of eutrophication in these areas can be measured both in
ecological terms and also, in anthropocentric terms, in relation to its effect upon us.
In ecological terms, algal growth on the water’s surface limits sunlight penetration.
Equally, photosynthesis by the algae also causes a reduction in the oxygen levels of
affected waters. The level of de-oxygenisation is also increased by microbial action
upon dead algae on the floor of the lake or estuary. Ultimately, these limitations in the
available levels of sunlight and oxygen will reduce the diversity of plant and fish life
that the affected waters can sustain.6 This equally has an impact upon the potential use
of these waters for recreational uses such as angling. At the same time, it should also
be recognised that some of the algae associated with eutrophication are known to
produce toxins that are harmful to humans and animals.7 Humans can become
exposed to these toxins through the consumption of contaminated waters, through
direct contact with algae in the water or through an accumulation of the toxins within
sea food. Depending upon the toxins in question, the symptoms experienced by
humans can vary between fatigue, diarrhoea and vomiting.8
Researchers have sought to identify the principal sources of the nitrogen and
phosphorous loads carried within our waterways. A report published by the European
Environment Agency has stated that between 46 and 87% of the nitrogen load carried
by inland waters in central and Western Europe is derived from agriculture.9 This
report also noted that in some catchments point sources, predominantly domestic
sewage treatment plants, were also responsible for between 35 and 43% of this
nitrogen load. Contrastingly, in relation to phosphorous, the report noted that within
more densely populated areas 50 to 76% of the phosphorous load within inland waters
derived principally from domestic sewage treatment plants, whilst agriculture was
4
Water Pollution Advisory Council, A Review of Water Pollution in Ireland, Water Pollution Advisory
Council (Dublin: 1983) p.13
5
See P. Crouzet, S. Nixon, Y. Rees et al., Nutrients in European Ecosystems. European Environment
Agency (Office for Official Publications of the European Communities, Luxembourg: 2000)
6
See, for example, J. Stansfield, The Interactions Between Eutrophication and Fish in the Norfolk
Broads. In J.Reader (ed.) Long Term Impact of Pollution in United Kingdom Freshwaters. (The
Institute of Fisheries Management, London: 1995) p.55
7
See World Health Organisation & European Commission, Eutrophication and Health. (Office for
Official Publications of the European Communities,Luxembourg: 2002)
8
Ibid p.10
9
P. Crouzet, J. Leonard, S.Nixon, et al Op Cite footnote 5 at p.32
2
responsible for between 20-40 %.10 In Ireland it has been estimated that phosphorous
from agricultural sources is responsible for over 70% of the total pollution load
carried by freshwaters.11
Eutrophication in Ireland’s Lakes and Coastal Waters.
In 2002 the Environmental Protection Agency reported that water quality had been
surveyed in 304 lakes throughout Ireland in the period 1998-2000.12 260 of these
lakes (85%) were found to have low or moderate algal growth, which was consistent
with them suffering little of no pollution.13 The remaining 44 lakes (15%) were,
however, found to be suffering from eutrophication.14
The Environmental Protection Agency has also examined the quality of Ireland’s
coastal waters. Between 1995 and 1999 the Environmental Protection Agency
conducted a comprehensive survey of Ireland’s most important estuaries, bays and
inshore coastal waters.15 This survey classified 13 waters as being eutrophic.16 It also
identified four additional waters as being potentially eutrophic.17
2. Tackling Eutrophication: The European Community’s Legislative
Framework.
The European Community has set out to directly tackle the problem of eutrophication
through three directives:18



Directive 91/676 concerning the protection of waters against pollution caused
by nitrates from agricultural sources. OJ [1991] L375/1
Directive 91/271 concerning urban waste water treatment. OJ [1991] L271/40
Directive 2000/60 Establishing a Framework for Community Action in the
Field of Water Policy. OJ [2000] L327/1
The Nitrates Directive.
The Nitrates Directive requires Member States to identify waters that are affected by
‘pollution’. Under Article 3(1) and Annex 1 of the directive, polluted waters are
10
Ibid p.32
Environmental Protection Agency, Ireland’s Environment 2004 Op Cite footnote 1 at p.214
12
Environmental Protection Agency, Water Quality in Ireland, Environmental Protection Agency
(Ireland: 2002) p.36
13
Ibid. p.37
14
Ibid. p.37
15
Ibid. p.59
16
Ibid. p.62: These waters were as follows: Broadmeadow Estuary Inner, Liffey Estuary, Slaney
Estuary Upper, Slaney Estuary Lower, Barrow Estuary, Suir Estuary Upper, Lee Estuary/ Lough
Mahon, Upper Bandon Estuary, Lower Bandon Estuary, Upper Lee Estuary (Tralee), Upper Feale
Estuary, Cashen/Feale Estuary, Killybegs Harbour.
17
Ibid. p.62: These waters were as follows: Castletown Estuary, Blackwater Estuary Upper,
Blackwater Estuary Lower, Owennacurra Estuary/ North Channel (Great Island)
18
A number of other Community measures can also be expected to have a more indirect effect in
helping to tackle eutrophication. These include Directive 79/409 on the Conservation of Wild Birds OJ
[1979] L103/1, Directive 92/43 on the conservation of natural habitats and wild fauna and flora OJ
[1992] L206/7 and Regulation 1782/2003 establishing common rules for direct support under the
common agricultural policy. OJ [2003] L270/1. However, given time constraints, consideration of
these measures will be beyond the scope of this paper.
11
3
defined in terms of their nitrate concentration and also in terms of their eutrophic
state. Member States are required to identify as polluted any surface freshwaters and
groundwaters that have a nitrate content of more than 50 mg/l or which could develop
such a nitrate concentration if preventative action is not taken. Additionally Article
3(1) and Annex 1 also require Member States to identify as polluted waters “any
natural freshwater lakes, other freshwater bodies, estuaries, coastal waters and marine
waters” that are eutrophic or which may in the near future become eutrophic if
preventative action is not taken.
Once such polluted waters have been identified, Member States are then required to
designate all lands which drain into these waters as being Nitrate Vulnerable Zones.19
The practical impact of the identification of land as a Nitrate Vulnerable Zone is that
Article 5 of the directive then requires that Member States establish an action
programme in respect of this land.20 This action programme establishes mandatory
measures that farmers are required to apply, primarily in respect of fertiliser and
manure use and also livestock management.21 The objective behind each action
programme being to limit the amount of nitrate, whether in the form of fertiliser or
animal manure, which escapes from each farm. The Nitrates Directive additionally
requires that Member States review their designation of Nitrate Vulnerable Zones at
least every four years.22 Similarly they are also required to review their action
programmes every four years.23
The other alternative to the identification of individual Nitrate Vulnerable Zones is
that Member States may decide to establish and apply action programmes throughout
their national territory.24 This is the approach which both the Republic of Ireland and
Northern Ireland currently intend to adopt. Elsewhere 6 other Member States (Austria,
Denmark, Finland, Germany, Luxembourg and the Netherlands) have also taken this
approach.25
The Urban Waste Water Treatment Directive.
The Urban Waste Water Treatment Directive is designed to ensure that sewage
collection systems are established for domestic and industrial waste waters and that
this waste water receives appropriate treatment to reduce its environmental impact
before being released into our waterways.
The directive currently requires that sewage collections systems should be in place for
all settlements with populations of more than 15,000.26 From 31st December 2005 this
obligation will apply to settlements of more than 2,000.27 The Directive then also
goes on to introduce obligations for Member States to ensure that this sewage is
treated before being discharged into waterways. At the moment waste water
19
Article 3(2)
Article 5
21
See Article 5(4) and Annex III
22
Article 3(4)
23
Article 5(7)
24
Article 3(5)
25
European Commission, Implementation of Council Directive 91/676/EEC Concerning the Protection
of Waters Against Pollution Caused By Nitrates From Agricultural Sources. Office for Official
Publications of the European Communities, Luxembourg: 2002 at p.25
26
Article 3(1)
27
Ibid.
20
4
discharges from settlements with populations of more than 15,000 must undergo a
process of secondary treatment, which accords with the requirements of the directive,
before being discharged.28 From 31st December 2005 these requirements concerning
secondary treatment will apply to all sewage discharges from settlements of more than
10,000.29 Additionally, from that date, the directive will also institute this same
requirement in respect of all discharges of waste waters into freshwaters or estuaries
from settlements of 2,000 or more people.30
Domestic sewage is an important source of nutrients such as nitrogen and phosphates.
The Urban Waste Water Directive has therefore sought to put additional measures in
place to guard against the danger of eutrophication. The directive requires Member
States to identify as ‘sensitive areas’ all:
“natural freshwater lakes, other freshwater bodies, estuaries and coastal waters which
are found to be eutrophic or which in the near future may become eutrophic if
protective action is not taken.”31
This process of identification was initially required to be completed by 31st December
1993.32 The identification of sensitive waters must also be renewed at least every
subsequent four years.33 The practical impact of the identification of a particular
waterway as being a ‘sensitive area’ is that Member States were then required to
ensure that, by December 1998, waste water discharges from settlements with
populations of more than 10,000 underwent even more stringent treatment prior to
their release.34 This applied to both discharges that went directly into the ‘sensitive
waters’ themselves and also discharges into their catchment areas. Once again the
directive stipulates the parameters of the treatment that the waste water is to undergo,
in this case the emphasis being on the need to radically reduce the levels of
phosphorous and nitrogen carried within it.35
The Water Framework Directive.
This directive requires Member States to identify the individual river basins that exist
within their territory and then to draw up separate river basin districts.36 This river
basin district, which for example might encompass one large river basin and several
smaller basins, therefore becomes the level at which the directives environmental
objectives have been pitched. Member States were then required to identify an
appropriate competent authority for each river basin district that would be responsible
for ensuring that the directive’s environmental objectives were being met in each river
basin district.37 In reality the directive has created three main environmental
objectives for each river basin district:38
28
Article 4(1) and Annex 1
Article 4(1)
30
Article 4(1)
31
Article 5(1) and Annex II
32
Article 5(1)
33
Articles 5(6)
34
Article 5(2)
35
Article 3(4) provides for a minimum reduction of at least 75% total phosphorous and at least 75%
total nitrogen.
36
Article 3(1)
37
Article 3(2)
38
Article 4(1)
29
5



The aim of achieving good surface water status by, at the latest, October 2015
The aim of achieving good groundwater status by, at the latest, October 2015
Achieving compliance with any standards and objectives established in
European Community Law for protected areas by, at the latest, October 2015.
Within each River Basin District, the Directive’s environmental objectives will have
important implications for the control of eutrophication. In order for surface waters to
be classified as having ‘good surface water status’ the directive requires that both the
‘ecological status’ of that water body and also its ‘chemical status’ should be
classified as being good.39 Normative definitions of ‘good ecological status’ and
‘good chemical status’ are then set out in Annex 5 of the directive. These definitions
cover a number of different elements of every water body’s ecological status. In
relation eutrophication, for both rivers and lakes, for example, they stipulate that….
“There are slight changes in the composition and abundance of planktonic taxa
compared to the type-specific communities. Such changes do not indicate any
accelerated growth of algae resulting in undesirable disturbances to the balance of
organisms present in the water body or to the physio-chemical quality of the water or
sediment.
A slight increase in the frequency and intensity of the type-specific planktonic blooms
may occur.”
The Legal Definition of Eutrophication in European Union Law.
Although there are several pieces of European Community legislation that play a role
in tackling eutrophication, only two actually provide a definition of the concept. In the
Nitrates Directive eutrophication has been defined in the following terms:
“ ‘eutrophication’ means the enrichment of water by nitrogen compounds, causing an
accelerated growth of algae and higher forms of plant life to produce an undesirable
disturbance to the balance of organisms present in the water and to the quality of the
water concerned.”40
The Urban Waste Water Treatment Directive also provides a similar definition which
differs only in relation to the nutrients that it identifies as being the root cause:41
“ ‘eutrophication’ means the enrichment of water by nutrients, especially compounds
of nitrogen and/\or phosphorus, causing an accelerated growth of algae and higher
forms of plant life to produce an undesirable disturbance to the balance of organisms
present in the water and to the quality of the water concerned.”
3. The European Court of Justice’s Approach to Eutrophication.
39
Article 2(18).
Article 2(i)
41
Article 2(11)
40
6
The European Court of Justice has delivered two judgements on the correct
interpretation of the legal definitions of eutrophication that are set out in the Nitrates
and Urban Waste Water Treatment Directives. In Case C-258/00 European
Commission v France (hereinafter ‘European Commission v France (Nitrates
Directive)’) the Court examined the definition of eutrophication contained in the
Nitrates Directive. More recently, in September 2004, the Court dealt with similar
issues in relation to the Urban Waste Water Treatment Directive, in Case C-280/02
European Commission v France (hereinafter ‘European Commission v France
(Urban Waste Water Treatment Directive’). Both of these cases were enforcement
actions that the European Commission brought against France on the basis that France
had failed to fully comply with its obligations under these directives. As such, these
cases are therefore also important in establishing the extent of Member States’
obligations to tackle eutrophication issues. A number of legal issues concerning
eutrophication were also raised in the European Court of Justice’s judgement,
delivered in March 2004, in Case C-396/01 European Commission v Ireland.
In European Commission v Ireland, the case concerned the implementation of the
Nitrates Directive in Ireland. The European Commission argued in this case that there
was a widespread and worsening problem of eutrophication within Ireland’s
freshwater lakes and other freshwater bodies. The Commission asserted that the lands
draining into these waters should have been designated as Nitrate Vulnerable Zones.
The problem with this argument is that, as Ireland argued in this case, there was
evidence to suggest that eutrophication within freshwaters in Ireland and elsewhere is
primarily caused by the enrichment of these waters by phosphorous.
In Ireland, for example, the Environmental Protection Agency has reported that:
“Eutrophication, or nutrient enrichment, is the principal threat to the water quality of
Irish lakes. This form of pollution is caused by the inputs of nutrients, principally
phosphorous, either directly to lakes or more commonly through the inflowing rivers,
at concentrations well in excess of natural levels.”42
Similarly the fundamental role that phosphorous plays in freshwater eutrophication
has also been recognised by reports published by bodies such as the European
Environment Agency, the World Health Organisation, the OECD, the House of Lords
Select Committee on the European Communities.43
Contrastingly, nitrogen has been recognised as the most important nutrient in causing
eutrophication in coastal waters.44 In the upper part of river estuaries, which tend to be
dominated by freshwater derived from the river, eutrophication tends to be controlled
42
Environmental Protection Agency, Water Quality in Ireland, Environmental Protection Agency
(Ireland: 2002) p.35
43
See, respectively, P.Crouzet, J. Leonard, S.Nixon et al, Nutrients in European Ecosystems. European
Environment Agency (Copenhagen: 2000) p.38, G. Klein, P.Perera, Eutrophication and Health, Jointly
published by the World Health Organisation and the European Commission (Office for Official
Publications of the European Communities, Luxembourg: 2002) p.4, OECD, Eutrophication of Waters;
Monitoring, Assessment and Control. OECD (Paris) p.9, House of Lords Select Committee on the
European Communities, 16th Report- Nitrate in Water, HL paper 73, HMSO (London: 1989)
44
P. Crouzet, J. Leonard, S. Nixon et al, Op Cite footnote 43 at p.43
7
by phosphourous levels.45 In contrast, nitrogen tends to be the limiting factor in the
lower stretches of river estuaries.46
The definition of eutrophication within the Nitrates Directive specifically refers to the
‘enrichment of water by nitrogen compounds, causing an accelerated growth of algae
and higher forms of plant life…’,47 Therefore, it would appear that freshwater
eutrophication is excluded from the scope of the Nitrates Directive, since it would
seem to be the enrichment of water by phosphorous compounds which causes
accelerated algal growth in these waters.
In Commission v Ireland, this argument was made to dispute the European
Commission’s claim that Ireland ought to have identified its eutrophic freshwaters as
being polluted under Article 3(1) of the Nitrates Directive. The Court’s response to
these arguments, however, was rather offhand. It noted simply that:
“…it must be observed that, under Article 3(1) of the Directive, in conjunction with
paragraph A(1) of Annex 1 thereto, Member States are required to identify eutrophic
freshwaters or freshwaters at risk of eutrophication in the near future if action
pursuant to Article 5 of the Directive is not taken.”48
For the reason behind this decision we need to consider the Court’s judgement in
Commission v France (Nitrates Directive). The principal issue in this case was
whether France had dealt with the issue of eutrophication in a manner that complied
with the Nitrates Directive. France had sought to implement the Nitrates Directive
through an administrative circular which identified both nitrogen and phosphorous as
being the most important nutrients linked to eutrophication. The circular went on to
state that, whilst plants needed both these nutrients:
“some [nutrients] can be present in ample quantities, others can sooner or later run
short…. In that context, the limiting factor is defined as the element which first runs
short, which first disappears from the environment as the result of assimilation by
plants.”
The circular then sought to apply this observation to nitrogen and phosphorous. It
stated that, within freshwaters, nitrogen and phosphorous were at equilibrium at a
ratio of 16 nitrogen atoms to one phosphorous atom. If, in particular waters, the ratio
is higher then nitrogen is readily available but phosphorous is in short supply.
Consequently phosphorous is the limiting factor and reductions in phosphorous will
prevent eutrophication. If the ratio between nitrogen and phosphorous is less than 16.1
then the opposite is true and nitrogen is the limiting factor. In this situation
eutrophication can be prevented by reducing nitrogen levels within the water.
In this latter situation, in which nitrogen was the limiting factor, the circular provided
that two further criteria also had to be satisfied before an obligation arose to designate
a Nitrate Vulnerable Zone and to require farmers in the area to comply with the
restrictions set out in an action plan:
45
Ibid. p. 43
Ibid. p.43
47
Article 2(i)
48
Paragraph 43 of the Court’s judgement.
46
8
1. It had to be shown that nitrogen from human sources was also the controlling
factor in causing eutrophication. It must be possible to control eutrophication
by reducing the amount of nitrogen entering the waterway from human
sources. Some algae, for example, are capable of fulfilling their nitrogen needs
by taking nitrogen from the atmosphere. Controlling nitrogen from human
sources would have no effect in relation to any eutrophication caused by such
plants.
2. It was also necessary to determine whether agriculture was a significant source
of the nitrogen loading within the water way.49 This reflected the fact that the
Nitrate’s Directive was designed to tackle pollution caused by nitrates from
agricultural sources.
The French measures then provided for policy makers to put these provisions into
operation on the basis of the following understanding of the causes of eutrophication:
“The present state of knowledge, which is still imprecise and incomplete due to the
complexity of the processes to be taken into account, suggests that it is highly likely
that nitrogen is the controlling factor in the eutrophication of saline (coastal) waters
and stagnant, shallow, brackish waters (lagoons). It is established that this is not the
case for flowing brackish waters (estuaries) and hard freshwaters, both flowing and
stagnant, where phosphorous plays that role (of controlling factor). Finally, for acidic
freshwater, especially stagnant (ponded) and deep brackish waters, further studies are
required in order to be able to reach a conclusion.”
France argued that their legislation was completely in compliance with the terms of
the Nitrates Directive. They pointed to the fact that the directive’s definition of
eutrophication required that nitrogen be the limiting factor which caused that
eutrophication. The mere enrichment of the waters by nitrogen compounds was not
enough. Equally, France pointed out that the European Court of Justice itself had
previously acknowledged that the Nitrates Directive had given Member States a broad
discretion as to the manner in which they identified waters polluted by nitrates from
agricultural sources.50 They argued that in exercising that discretion they were entitled
to identify those eutrophic waters whose water quality could be improved by
measures that sought to reduce agricultural pollution.
The Commission pointed out that the practical impact of the French measures was
that effectively many categories of waterway were being excluded from the operation
of the Nitrates Directive – since they were regarded as being phosphorous limited.
The Commission argued that as one of the two main nutrients required in the
French law had previously required that agriculture had to be the ‘the predominant’ source of the
nitrogen loadings contained in the waterway. However, this provision was amended in 2000
50
In Case C-293/97 R v Secretary of State for the Environment, ex parte Standley [1999] ECR I
2603, at paragraph 39 of its judgement, the Court noted that “the Directive may thus be applied by
member states in different ways. Nevertheless, such a consequence is not incompatible with the nature
of the Directive, since it seeks not to harmonise the relevant national laws, but to create the instruments
needed in order to ensure that waters in the Community are protected against pollution caused by
nitrates from agricultural sources. The Community legislature necessarily accepted that consequence
when, in Annex 1 to the Directive, it granted the member states a wide discretion in the identification
of waters covered by Article 3(1).
49
9
eutrophication process, nitrogen should always be regarded as being of prime
importance and should always be controlled as a preventative measure – even if it was
the supplementary presence of phosphorous that actually triggered the eutrophication
and determined its scope. Equally, the Commission drew attention to the fact that the
French measures did not take any account of the variations in the nutrient
requirements of individual plant species or of the variations that might occur during
their growth cycle. In the Commission’s mind, the labelling of particular types of
water body as being phosphorous limited and controlled created the distinct
possibility that in some areas eutrophication would continue there as a result of the
excessive growth of plants that were actually nitrogen limited.
The Court for its part in this case chose to adopt a strongly precautionary approach. It
noted that the objectives of the Nitrates Directive were:
“,in order to protect human health and living resources and aquatic ecosystems and to
safeguard other legitimate uses of water, to reduce water pollution caused or induced
by nitrates from agricultural sources and to prevent further such pollution.”
The Court found that the methods adopted by France did not comply with these
objectives. In particular the Court rejected France’s claim that phosphorous should be
regarded as being the nutrient which ‘caused’ eutrophication in particular classes of
waterway. This was an issue upon which both France and the European Commission
had produced conflicting scientific evidence. The Court concluded that understanding
of the causes of eutrophication was still imprecise and incomplete. Ultimately, the
Court found that France was correct to state that the Nitrates Directive had granted it a
wide discretion in identifying the polluted waters to which the directive would apply.
However, equally the Court made it clear that that discretion should be exercised in
the light of the Directive’s objectives. The Court concluded that this could not be
achieved by a methodology which excluded a large category of nitrogen bearing
waters from the scope of the Directive.
Taking a more detailed look at the specific objections raised by the Court noted in
particular that the French methods could result in a major class of waters being
excluded from the scope of the directive “even though there was in fact pollution by
nitrates from agricultural sources or a real risk of such pollution.”51 Equally the Court
subsequently expanded upon this by referring to the fact the French methods would
allow waters with ‘high nitrogen levels’ to fall outside the scope of the directive.52
Similarly the Court also points to the fact, as the Commission had argued, that France
had ignored the possibility that nitrogen limited plants could grow within waterways
that were generally regarded as being phosphorous limited. Consequently
eutrophication would continue unchecked in these waters as France had excluded
them from the scope of the Directive.
In effect therefore, where the potential for eutrophication exists, Member States will
be required to implement action programmes in response to situations in which
elevated nitrogen levels are detected and agriculture is adjudged to have made a
significant contribution to those levels.
51
52
paragraph 48. See also similar comments made by the Court in paragraph 46.
Paragraph 52.
10
Returning to European Commission v Ireland, the European Commission also
successfully argued that there a number of Ireland’s estuaries and areas of coastal or
marine waters which were eutrophic or at risk of becoming eutrophic and ought to
have been identified as being polluted under the Nitrates Directive. Again, the
consequence of this would be that the lands draining into these waters should be
designated as Nitrate Vulnerable Zones and action plans implemented by farmers
located on these lands. Ireland in this instance drew the European Commission’s
attention to the Environmental Protection Agency report ‘An Assessment of the
Trophic Status of Estuaries and Bays in Ireland’.53 This report identified 13 tidal
waters as being eutrophic and concluded that four more were potentially eutrophic.54
Ireland indicated that the lands draining into these areas were being considered for
possible designation as nitrate vulnerable zones. Given that Ireland has now signalled
its intention to establish action programmes throughout its territory; these lands will
now be incorporated within those nationwide measures. Additionally, each has been
identified as being a sensitive area under the Urban Waste Water Treatment
Directive.55
The issue of the methods used to identify sensitive waters under the Urban Waste
Water Treatment Directive was recently considered by the European Court of Justice,
in Case C-280/02, European Commission v France (Urban Waste Water Treatment
Directive. The Court’s judgement in this case was delivered on 23rd September 2004.
In Ireland, the criteria used by the Environmental Protection Agency have been
developed from the definition of eutrophication within the Urban Waste Water
Treatment Directive:56
“ ‘eutrophication’ means the enrichment of water by nutrients, especially
compounds of nitrogen and/ or phosphorous, causing an accelerated growth of
algae and higher forms of plant life to produce an undesirable disturbance to the
balance of organisms present in the water and to the quality of the water
concerned.”
The Environmental Protection Agency has indicated that three categories of criteria
have been applied in order to identify waters that are eutrophic or in danger of
becoming eutrophic and which ought to be identified as being sensitive areas under
the Urban Waste Water Treatment Directive:57
(a) criteria for nutrient enrichment;
(b) criteria for accelerated growth;
(c) criteria for ‘undesirable disturbance’.
53
Environmental Protection Agency, The Trophic Status of Estuaries and Bays in Ireland.
Environmental Protection Agency, Ireland: 2001.
54
See footnotes 15 and 16.
55
By virtue of the Urban Waste Water Treatment Regulations 2001 (S.I. 254) and the Urban Waste
Water Treatment and the Urban Waste Water Treatment (Amendment) Regulations 2004 (S.I. 440)
56
Article 2(11)
57
Environmental Protection Agency Op Cite footnote 42 at p.59
11
The Environmental Protection Agency notes that a water body will be classified as
being eutrophic when each of the criteria are breached.58 The issue of whether there
was an ‘undesirable disturbance’ being determined primarily by the impact that the
accelerated plant growth had had upon oxygen levels within the water.59 In this
regard, the Environmental Protection Agency notes that:60
“Undesirable Disturbance to the oxygen regime caused by accelerated plant
production may take the form of deoxgenation or of excess oxygenation, which is
referred to as Supersaturation. Criteria are therefore defined for both these effects;
non-compliance in respect of either threshold is regarded as a breach of the criterion
for Undesirable Disturbance.”
Additionally the Environnmental Protection Agency has indicated that “other aspects
of eutrophication, such as the degree and frequency of algal standings on beaches, are
also taken into account during the assessment process.”61 The recent decision of the
European Court of Justice, in Commission v France (Urban Waste Water Treatment
Directive) has illustrated the importance of ensuring that such qualitative data is taken
into account.
In European Commission v France (Urban Waste Water Treatment Directive) the
principal issue before the Court was whether a number of coastal areas of France
ought to have been designated as being sensitive, so that urban waste water discharges
into those waters, from population of more than 10,000, would be required to undergo
more stringent waste water treatment.62
The Court in this case stated that the definition of eutrophication within the Urban
Waste Water Treatment Directive actually contained four criteria:63
(a) the enrichment of water by nutrients, especially compounds of nitrogen and/ or
phosphorous;
(b) causing the accelerated growth of algae and higher forms of plant life;
(c) to produce an undesirable disturbance to the balance of organisms present in
the water;
(d) and [deterioration of] to the quality of the water.
In the courts words, eutrophication is characterised by the confluence of these four
criteria.64
When it came to the interpretation of these criteria, the Court once again adopted a
purposive approach- to interpret them in the light of the objective that the Urban
58
Ibid.
Ibid pp.59-60
60
Ibid pp.61
61
Environmental Protection Agency, Ireland’s Environment 2004, Environmental Protection Agency
(Wexford, 2004) at p.60
62
The European Commission claimed that France had failed to identify as eutophic the water bodies
contained within the Seine-Normandy, Artois-Picardy, Loire-Brittany and Rhône-MedeterraneanCorsica Basins.
63
Paragraph 18 of the judgement of the Court.
64
Ibid.
59
12
Waste Water Treatment Directive sought to achieve. The Court noted that this
objective went
“beyond the mere protection of aquatic ecosystems and attempts to conserve man,
fauna, flora, soil, water, air and landscapes from any significant harmful effects of the
accelerated growth of algae and higher forms of plant life resulting from discharges of
urban waste water.”65
The Court began by accepting that there must be a cause and effect relationship
between enrichment by nutrients and the growth of algae and higher forms of plant
life. Similarly the Court pointed to a need to similarly establish a cause and effect
relationship between the accelerated growth of algae and higher forms of plant life
and the fact that an undesirable disturbance had been caused to the balance of
organisms present in the water and to the water quality.
The Court then turned its attention to the third criteria:
“to produce an undesirable disturbance to the balance of organisms present in the
water.”
France had argued that the mere fact that there had been a proliferation of plant
growth was not sufficient and that this could only amount to an ‘undesirable
disturbance’ if it also had an impact on the balance of the organisms present in the
water. The Court, however, adopted a much broader view. The Court essentially
divided the issue into two parts. Firstly it examined what would amount to a
disturbance to the balance of organisms present in the water. The Court noted that
equilibrium within aquatic ecosystems was based upon complex interactions between
different species and their environment.66 Therefore the Court held that the
proliferation of any one species of plant would amount to a disturbance of the balance
of the aquatic ecosystem and of the balance of the organisms present in the water.67
Secondly, however, the Court also noted that this disturbance was required to be
‘undesirable’. The Court here returned to the objectives of the Urban Waste
Treatment Directive and found that;
“undesirability must… be considered to be established where there are significant
harmful effects not only on flora and fauna but also on man, the soil, water, air or
landscape.”68
The Court also adopted a similarly broad approach to the fourth criteria:
“and [deterioration of] the quality of the water
65
Paragraph 16 of the judgement of the Court.
Paragraph 21 of the judgement of the Court.
67
Ibid. The Court went on to note that “Moreover, given the competition between plant species for
nutrient salts and luminous energy, the proliferation of one or several species, by monopolising the
resources necessary to the growth of other algae and aquatic plants, very often if not always entails
reductions in other species.”
68
Paragraph 22 of the Court’s judgement.
66
13
The Court found that this would not only be engaged in situations in which poorer
water quality had created harmful effects for the aquatic ecosystem. It would also be
satisfied by:
“deterioration of the colour, appearance, taste or odour of the water or any change
which prevents or limits water uses such as tourism, fishing, fish farming, clamming
and shell fish farming, abstraction of drinking water or cooling of industrial
installations.”69
An examination of the Court’s treatment of the particular waterways in issue in the
case illustrates the broader approach that the Court is advocating.
For example, in relation to the River Seine and its tributaries the Court seemed to be
concerned with the traditional understanding of eutrophication – the effect of plant
growth in causing waters to become deoxygenated. The evidence produced in court
showed that de-oxygenation affected 50 km of the Seine estuary. The consequence of
this was these waters were unusable by migratory fish such as salmon and eels for six
months of the year. The Court noted that this plant growth “clearly constituted an
undesirable disturbance of the balance of organisms in the water and to the quality of
the water.”70
Elsewhere, in relation to the Seine Bay, the Court found that a proliferation of
phytoplankton, Dinophysis, which produced toxins that liable to accumulate in
shellfish and which were dangerous to humans constituted an undesirable disturbance
of the balance of the organisms present there.71 The difficulties that this caused for the
shell fish industry also amounted to a deterioration of the quality of the water in that
bay.
In a number of instances the Court found eutrophication to exist, due to the effect of
plant growth upon the tourist industry.
In the Seine Bay the Court was concerned with the growth of a species of
phytoplankton, Phaeocystis, which was not toxic but which gave the appearance of
foam. This ‘foam’ then washed up on beaches.
In the Artois-Picardy basin, evidence suggested that the growth of the phytoplankton
Phaeocytis not only caused “impressive displays of foaming on the coast”,72 but also
caused the coastline to have a “nauseating odour”.73
In the Lorient roadstead, macroalgal tides were said to produce “green tides” which
rendered impossible normal tourist activities such as bathing, fishing and hiking along
the coast.74
Paragraph 24 of the Court’s judgement.
Paragraph 45 of the Court’s judgement.
71
Paragraphs 32 to 38 of the Court’s judgement.
72
Paragraph 53 of the Court’s judgement.
73
Ibid.
74
Paragraph 73 of the Court’s judgement.
69
70
14
In each of these cases, without needing to consider whether the plant growth had
caused any de-oxygenation, the Court found that there had been both an undesirable
disturbance of the balance of organisms in the water and also deterioration in the
quality of the water. In other words, that each of these areas ought to have been
identified as being sensitive areas under the Urban Waste Water Treatment Directive.
Perhaps the clearest example, however, of the Court’s precautionary approach to
eutrophication can be seen in relation to the Thau lagoon. The Court accepted that
these waters were not normally eutrophic.75 However, the Court also noted that in
very high temperatures the algae growing there deteriorated and its decay led to the
lagoon becoming toxic for animals and plants.76 The effective outcome was the large
scale death of those plants and animals. This had occurred in 1975, 1982, 1983, 1987,
1990 and 1997. Given that there was a risk that these events might occur again in
future if unusual weather conditions occurred, the Court ruled that this area also ought
to have been declared a sensitive area under the Urban Waste Water Treatment
Directive. If and when these events did occur they amounted to both an undesirable
disturbance of the balance of the organisms present in the water and to a disturbance
of the water quality.
The final point that the Court made about the identification of sensitive areas under
the Urban Waste Water Treatment Directive was that waters need only be identified if
it could be shown that urban waste water discharges had made a significant
contribution to eutrophication or risk of eutrophication within them. The Court
reached this conclusion by drawing a parallel with its decision in Case C-293/97 R v
Secretary of State for the Environment, ex parte Standley [1999] ECR I 2603. In
that case it had upheld the designation of Nitrate Vulnerable Zones under the Nitrates
Directive, in circumstances in which agriculture was demonstrated to be a significant
cause of the higher nitrogen levels found in particular waterways.77 However, it is
interesting to examine what the Court considers to amount to ‘a significant
contribution’.
In relation to the Seine Bay, the European Commission produced evidence that 40%
of the nitrogen carried by the River Seine was derived from urban waste waters.
France disputed this figure and claimed that only 28% of this nitrogen loading came
from urban waste waters.78 The Court, however, was happy to accept that even this
lower figure illustrated that urban waste water discharges made a significant
contribution to eutrophication in the Seine Bay.79
Similarly, the Court found that nitrogen inputs from urban waste waters which
accounted for between 21% and 32% of the nitrogen loadings of the Elorn estuary,
Paragraphs 96 and 97 of the Court’s judgement.
Paragraph 98 of the Court’s judgement.
77
The Court noted, at paragraph 40 of its judgement, that “articles 2(j) and 3(1) of the Directive and
Annex I thereto must be interpreted as requiring the identification of surface freshwaters as “waters
affected by pollution,” and therefore the designation as “vulnerable zones” in accordance with article
3(2) of the Directive of all known areas of land which drain into those waters and contribute to their
pollution, where those waters contain a concentration of nitrates in excess of 50 mg/l and the member
state concerned considers that the discharge of nitrogen compounds from agricultural sources makes a
“significant contribution” to that overall concentration of nitrates.”
78
Paragraph 40 of the Court’s judgement.
79
Ibid.
75
76
15
Gulf of Morbihan, Douarnenez bay and Concarneau bays amounted to a significant
contribution to eutrophication.80However, perhaps the clearest example of the strict
approach adopted by the Court on this issue came in relation to the Lorient roadstead.
The Court here accepted that 9.8% of the spring and summer inputs into these waters
came from urban waste waters.81 Noting that this amounted to 374 tonnes, the Court
once again concluded that this also amounted to a significant contribution to the
eutrophication being experienced there.82
Conclusion.
Eutrophication has become recognised as being an established environmental problem
in the European Union. In turn the European Union has put in place a comprehensive
framework of legislative measures that seek to tackle this problem. The Nitrates
Directive and the Urban Waste Water Treatment Directives are particularly important
in this respect, since they require Member States to take measures in respect of the
principle sources of the pollution leading to this problem: agriculture and domestic
sewage. The European Court of Justice, in its rulings in Commission v France
(Nitrates Directive) and Commission v France (Urban Waste Water Treatment)
Directive, has also now played an important role. In both cases the Court has adopted
a highly precautionary and preventative approach to the interpretation and application
of this legislation. In the case of the Nitrates Directive the Court’s judgement will
serve to maximise the scope of the Directive. By taking the stance that nitrogen inputs
have an important role within freshwater eutrophication the Court has ensured that,
throughout the Community, action programmes designed to reduce nitrate pollution
from agricultural sources must be applied more widely. In particular, where the
potential for eutrophication exists Member States will have to ensure that action is
taken in respect of elevated nitrogen levels where agriculture is adjudged to have
made a significant contribution to those levels. In Ireland the application of action
programmes throughout the country will ensure that this issue is addressed. Equally,
the broad interpretation that the Court has given to the concept of eutrophication
under the Urban Waste Water Treatment Directive will cause Member States to reevaluate the methods that they had adopted to identify sensitive areas under this
Directive. They will have to apply much broader criteria and, in particular, to avoid
relying totally upon quantitative data, such as water oxygen levels. Consequently,
once again the Court has sought to maximise the scope of Community law by
ensuring that all areas affected by nutrient enrichment are identified under that
Directive.
Select Bibliography.


Crouzet P., Nixon S., Rees Y., et al, Nutrients in European Ecosystems,
(European Environment Agency, 2000).
Department of the Environment & Department of the Agriculture and Rural
Development, Nitrates Directive: Consultation Paper on Proposed Action
Plan Measures for the Protection of Northern Ireland’s Waters. (Belfast,
2005).
Paragraph 87 of the Court’s judgement.
Paragraph 77 of the Court’s judgement.
82
Ibid.
80
81
16





Environmental Protection Agency, Ireland’s Environment 2004, (Wexford,
2004)
Environmental Protection Agency, Water Quality in Ireland 19982000.(Wexford, 2002).
European Commision, Implementation of Council Directive 91/676/EEC
Concerning the Protection of Waters Against Pollution Caused By Nitrates
From Agricultural Sources, (Office for Official Publications of the European
Communities, Luxembourg, 2002).
European Environment Agency, Europe’s Environment; The Second
Assessment. (Office for Official Publications of the European Communities,
Luxembourg, 1998).
World Health Organisation & European Commission, Eutrophication and
Health, (Office for Official Publications of the European Communities,
Luxembourg, 2002).
17