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.
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 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 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 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]
- 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.
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 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:
- 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.
- 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 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.
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’.
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 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
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]
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, Gulf of Morbihan, Douarnenez bay and
Concarneau bays amounted to a significant contribution to eutrophication.[80]However,
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 re-evaluate 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).
- Environmental Protection Agency, Ireland’s Environment 2004, (Wexford, 2004)
- Environmental Protection Agency, Water Quality in Ireland 1998-2000.(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).
[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
[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
[10] Ibid p.32
[11] 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.
[19] Article 3(2)
[20] 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.
[28] Article 4(1) and Annex 1
[29] 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)
[39] Article 2(18).
[40] Article 2(i)
[41] Article 2(11)
[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
[45] Ibid. p. 43
[46] Ibid. p.43
[47] Article 2(i)
[48] Paragraph 43 of the Court’s judgement.
[49] 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).
[51] paragraph 48. See also similar comments made by the Court in
paragraph 46.
[52] Paragraph 52.
[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
[58] Ibid.
[59] 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-Medeterranean-Corsica Basins.
[63] Paragraph 18 of the judgement of the Court.
[64] Ibid.
[65] Paragraph 16 of the judgement of the Court.
[66] 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.
[69] Paragraph 24 of the Court’s judgement.
[70] 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.
[75] Paragraphs 96 and 97 of the Court’s judgement.
[76] 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.
[80] Paragraph 87 of the Court’s judgement.
[81] Paragraph 77 of the Court’s judgement.
[82] Ibid.
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