» Submission on the Cessation of Turf Cutting Scheme (July 2009)

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Submission on the Cessation of Turf Cutting Scheme (July 2009) Friends of the Irish Environment

September 21, 2009 | By Robert Emmet Hernan

SUMMARY

The Report

On 27 March 2009 the Minister for the Environment, Heritage and Local Government announced a consultation process to address the phasing out of domestic turf cutting on raised bog Sites of Community Importance (SCIs) and Natural Heritage Areas (NHAs) over the coming years….” (1) Friends of the Irish Environment (FIE) has submitted a report on the history and legal underpinnings to the turf cutting scheme, and focusing on certain “derogations” with regard to turf cutting. (2) Simply put, FIE argues that the government has allowed turf cutting to continue on both raised and blanket bogs that have been designated as SCIs and NHAs and the government’s “derogations” are unlawful under the Habitats Directive. (3) If so, then the Irish government will once again run the risk of European Commission-led infringement proceedings, which could ultimately end with a substantial fine. (4)

Legal Background for Turf Cutting Scheme

The Habitats Directive was adopted by the Council of the European Union on 21 May 1992, and notified on 5 July 1992. (5) The Directive was transposed, or adopted, into Irish national law in February 1997, about 3 years later than required under EU law. (6) The Habitats Directive was structured to protect some 220 habitats and approximately 1,000 species listed in the directive’s Annexes (Annex I covers habitats, Annexes II, IV & V species). These are species and habitats which are considered to be of European interest, following criteria given in the Directive. Each country was required to identify the SACs and to protect them. Ireland’s bogs have been listed as Habitats required to be protected. The State has 60% of western Europe’s remaining heritage of uncut raised bog.

Article 4 of the Directive provides requirements and procedures for listing of sites for protection. Once a site is listed, the site is subject to Article 6 of the Directive which includes a provision that:

Member States shall take appropriate steps to avoid, in the specialareas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.

Under Article 6(4), there are very limited, strictly drawn exceptions to these obligations to assure that the listed habitat does not undergo any deterioration.

Successive Governments have designated bog habitats for protection, nominating candidate special areas of conservation in 1999 and in 2002 and natural heritage areas in 2004. Of the approximately 1,600 raised bogs, 139 are designated for protection.

FIE submit that the government has taken the position that the bogs are subject to derogations that allow continued use, and exploitation, of the listed sites. Thirty-two of these designated raised bogs are subject to the ten-year derogation that lapsed at the end of the turf cutting season in 2008. A similar ten-year derogation applies to bogs designated after 1999. For example, when NHAs were designated in 2004, under an agreement with the farming organisations, another ten-year derogation was put in place, arguably allowing cutting in NHAs until 2013. The government’s position on the legal authority for any derogation over the years is unclear. The FIE submission points out that other than Article 6(4), provisions for derogation under the Directive, which are very strict, arise only under Article 16 which on its face applies only to Protection of Species, under Articles 12, 13, 14 and 15, not to habitats. Even if the derogation provisions were applicable, there is no indication that over the years the government did comply, or even attempted to comply, with Article 16 or Article 6(4).

As for the status of the listed sites, the government’s own assessment is that: “In the ten years since commercial cutting was ended in designated areas, 35% of the remaining area of this priority EU habitat was lost through domestic cutting and we are losing between 2% and 4% of our remaining active raised bog per annum. The overall scientific assessment of the state of this habitat is “unfavourable, bad”, which is the worst of three categories. EU member states with such unfavourable status in a habitat are legally obliged to take measures to ensure improvement.” This assessment from the government certainly indicates that during the “derogations” the protected habitats have not been protected. FIE’s position is that the obligation to protect such critical resources arose when the government designated the bogs for SCIs and NRAs, and that the government continues to abrogate that obligation.

Footnotes:

1. The sites have been adopted as SCIs by the European Commission under Article 4(2) of the Habitats Directive, and the sites are now pending designation as Special Areas of Conservation (SACs) by the Irish government (which has 6 years from each site’s date of adoption as an SCI to do this – see Art 4(4)). In terms of protection, SCIs are subject to Articles 6(2) to (4) of the Habitats Directive (see Article 4(5)), while SACs are subject to all of Article 6

3. See Habitats Directive at

4. For a history of Ireland’s non-compliance with the Habitats Directive, see:

5. EU directives lay down certain end results that must be achieved in every Member State. National authorities have to adapt their laws to meet these goals, but are free to decide how to do so. Each directive specifies the date by which the national laws must be adapted to incorporate the EU law into national law.

6. European Communities (Natural Habitats) Regulations 1997 and the Wildlife (Amendment) Act 2000. Citation to the relevant documents is carefully provided by FIE in its Submission.

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