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
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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 eutrophicmoderate; strong; high)
Hypertrophic- very high algal growth, very high pollution, probably total deoxygenation 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 lakeswith 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
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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
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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
LegislationAgencies 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 authoritiesEPA 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
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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 otherand 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.
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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.
Art 226- proceedings to compel action remain a possibility. If govt fails to bring into
force proper nitrates plan, ECJ may resort to daily fines, under Article 226 for
continuing offences (as it as done in the case Greece!). Political problem is that of
placating the farming community. Ireland no longer has any choice. The position is
generally unsatisfactory all over Europe re. Nitrates but of ex EU 15 Member States–
Ireland owas the only one without nitrate programme. But this is no longer the
position as Ireland has taken steps forward by treating the whole area as nitrate
sensitive. Will have to see what happens at the end of April.
Decision pending Dangerous Substances
Under Art 7 Directive Member States are required to prepare pollution reduction
progs for a no. of substances in Annexe to the Directive- including phosphorous,
recognised as the biggest threat to Ireland’s water quality. Commission alleges
neglect from 1980 onwards under the Directive- protection was due to have been in
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place from then from phosphorous pollution. Issues include lack of adequate poll
reduction programmes. The Commission says Ireland the Irish Phosphorous
Regulations s do not achieve what ought to under the Directive.
Case lodged 2002, due soon this year, no Advocate General decision (by-passed).
Will await result- should have very shortly.
Forestry also addressed in Dangerous Substances Dir- fact that there no licensing
regime, in contravention of the requirements in the pollution reduction progs under
Art 7 Dir
Water Framework Directive (WFD)
The challenge for Ireland and Europe is how we will deal will eutrophication in the
context of the Water Framework Directive (2000/60). Broader aim is to ensure good
ecological water quality. Objective is to restore all waters to good status and protect
those in good status and prevent further deterioration. First two deadlines are in
respect of sending in legislation and details of River Basin Districts. Next deadline is
the characterization of water bodies (v soon). Opinion seems to be that many of the
lakes will be found to be at risk.
EPA will identify river basins RBDS and claims that all Western lakes will be in
Category 1A (ie at risk). No concrete information yet as deadlines have not yet
passed, so critical efforts have not yet had to be demonstrated. The efforts required
have devolved to local authorities, will they be equal to the task?
In theory the Directive will settle all the problems that I have highlighted. Waters at
risk must be identified. By 2009 will have programme of measures and mgmt plans,
RBD consultants working on these at present- will involve Department of Agriculture
and various other bodies. The EPA’s intention is to make them compliant. The EPA
is optimistic and is using its best endeavours to meet the requirements. It admits that
Ireland may need some derogations in terms targets but generally there is positive
response to the Directive. Action is taking place. By 2009 all programmess of
measure will have to be in place. Ireland won’t necessarily achieve all of the
requirements by then, but it is moving in right direction. WFD is part of EU and
National Law. The most striking aspect of WFD is degree of urgency compared to
other Directives. Dept of Environment putting money where mouth is €50m being
spent putting structures in place-demonstrating a huge commitment to this Directive.
My presentation has highlighted the issues contributing to lake pollution. Practical
steps need to be tightened to reduce run-off into lakes. There is a huge need for
public awareness and public pressure. No one is campaigning on these issues apart
from angling bodies. Why not? Shockingly, fish disappearing and algal blooms-do
not appear to be big factor in public’s eye- people don’t’ even seem to be too
concerned at drinking contaminated water! I will take Killarney’s lakes as an
important example in the late 90s, while not as bad as some lakes in Ire, they were
heading that way- this was extraordinarily serious as Killarney is a jewel in the Irish
tourism crown. Lough Leane turned pea green 97/98 summer due to massive algal
blooms. Stopped all angling, posters warned of danger of serious illness or even
death to those who entered or drank the waters! Killarney National Park is a
UNESCO designated Biosphere Park- one of only 22 worldwide- of great significance
to people in world. With a huge campaign to promote awareness of the lake damage
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and particularly of phosphate- there was massive voluntary cut-back on activity. The
programme extended to schools etc, for example urging the public to use detergents
containing zeolite instead of phosphate. Overall awareness helped bring a decrease in
phosphate emissions. Killarney is an example of serious measures being taken
urgently and working.
As a contrast, Lough Sheelin in Cavan was suffering serious algal bloom 70’s because
of intensive pig farming in the area. Huge funding was spent to try and reverse the
problem. At one point farmers were being paid to export slurry to Mullingar. It
worked and as a result there was a marked reduction in nutrient loading. However,
when the funding stopped, farmers reverted to dumping slurry on the land again.
In the EPA Millenium report, Lough Sheelin’s problem was deemed to increasing and
fairly drastic action is again needed urgently. This could be the situation nationally
with other lakes at risk of going same way if the situation is not addressed.
Government action is needed to really address the problem. The lakes should be
protected at source. Money is undoubtedly being spent on remedying the threat from
point sources, but this is not enough. Serious action would not be being taken unless
Brussels had forced us to face the problems. Until this the govt did not have the
incentive to do so. Now we have the FWD and cases pending before the ECJ to
contend with – and there is no escaping the responsibilities that follow these. Once a
lake is in a toxic state we do not know how long it takes to recover. It may take 15/20
years to restore. Why let this happen when there is no need? Lack of enforcement
seemed to be the main problem, now with the POE Act and the OEE we have
additional tools to remedy this Pressure is building to save our lakes of the toxic evils
that have long lurked on their shores.
Legislation is in place, the enforcement mechanisms and bodies are equipped with all
the armour they may need. Let’s see this battle against lake pollution take place.
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