The differing legal authority and institutional practices for enforcement against water pollution incidents in Northern Ireland (NI) and the Republic of Ireland (RoI) do not allow for a direct, easy comparison. But the nature and extent of enforcement in each jurisdiction can be glimpsed by looking at several reports issued by the relevant agencies at the end of 2009, providing summaries of data collected during 2006 to 2008.
Water Pollution Incidents and Enforcement
Annual Report Data for 2008
NI Environment Agency – Water Management Unit
The NIEA reported, in December 2009, on the number, sources, types and causes of water pollution incidents in 2008. The 2009 report provides the underlying data with little analysis. Earlier reports provided background information on and explanations of how the report is developed and reference to the full 2006 Annual Report is sometimes necessary.
In 2008, 2244 reports of water pollution were received by NIEA, requiring six investigations each day across NI, and 1237 incidents were confirmed as having an impact on the water quality of the receiving watercourse (“substantiated reports”). The number of reported and substantiated incidents in 2008 is relatively consistent with the averages of both categories over the past eight years. Only about 55% of reported events end up as substantiated, and that percentage has remained generally consistent since 2001. An analysis of why only about half of reports turn out to be substantiated would seem to be productive in possibly reducing the number of reports that require investigation and save substantial resources for the agency. Annex B of the 2006 Report does ask citizens to provide certain information presumably in an attempt to encourage more focused and timely reporting but the percentage of substantiated reports has remained the same over the past eight years. It may be that the site conditions at a substantial number of reported events have changed by the time an investigation is carried out. Nevertheless, further analysis seems warranted, especially since the agency claims that over 90% of the time it was able to respond to high and mid level pollution events within its targeted time period hours after the event was reported.
The data does show clearly that farming practices, sewage disposal, from NI Water Ltd., and industry account for the greater part of the substantiated incidents of water pollution. Farming as a source of pollution accounts for 26.4% of incidents and NI Water Ltd for 22.4%, with industry accounting for 22.2%. Domestic sources of pollution were responsible for 14% of substantiated reports. As for the type of pollutant, sewage accounts for 34.6%, agriculture for 25.6%, and oil for 16.3% of incidents. The NIEA characterizes incidents as Low, Medium or High [see 2006 Annual Report for explanation of these classifications] and farming represented 55% of the 20 High incidents and 36% of the medium incidents. In addition, 41% of the 22 fish kills resulted from farming practices in 2008. It remains to be seen if any policy or regulatory initiatives addressing the farming practices will follow the report.
Over 50% of the incidents were caused by equipment failure, poor working practices, inadequate equipment or negligence, in contrast to 3.5% caused by deliberate dumping. This data suggests that over 50% of the water pollution incidents could be corrected through training on operation and maintenance of equipment. The RoI EPA has indicated that many of the incidents of water pollution that it investigates can be traced to poor training of wastewater treatment staff in local authorities. See Report on EPA Annual Conference, Dublin (September 2009) in “Reports” section of an earlier issue of irish environment. A joint training program developed and offered by EPA and NIEA might be useful and cost-effective.
NIEA’s enforcement over water pollution incidents is based on the Water (NI) Order 1999 (NI Order 1999) which replaced the Water Act (Northern Ireland) 1972. Under the NI Order1999, the consent of the Department of Environment is required to discharge any trade or sewage effluent into NI waterways or underground strata. This includes any potentially polluting matter (including site drainage liable to contamination) from commercial, industrial or domestic premises to waterways or underground strata.
Prior to 1 April 2007, ‘crown discharges’ made by the Department for Regional Development’s Water Service, which previously was responsible for water and sewerage services within Northern Ireland, were regulated by the Environment and Heritage Service (EHS) through what were termed Registered Discharge Standards. These Registered Discharge Standards were derived so as to mimic the requirements of the NI Order 1999 but discharges made by the Water Service were immune from prosecution as they benefited from ‘crown immunity’. On 1 April 2007, Registered Discharge Standards were transferred to Northern Ireland Water Ltd (NIWL) under Article 29 of the Water and Sewerage Services (2006) Order. From that date discharges made by NIWL have been regulated under NI Order 1999 Consents, and NIWL is subject to enforcement, including prosecution, where the conditions of those consents are breached.
The Annual Report provides data for prosecutions taken by the NIEA. Of the 41 cases submitted to the Public Prosecution Service (PPS) in 2008, 22 have resulted in convictions but 19 are still pending so it is too early to assess the final outcome of the prosecutions. Besides the prosecutions submitted to the PPS, the NIEA issued 77 warning letters. Thus, of 1237 substantiated incidents, only 3% led to prosecutions and 6% to warning letters, for a total of less than 10% of substantiated incidents. Even if only the total of 249 High and Medium incidents are considered, less than 50% led to letters or prosecutions. There is no analysis of this modest level of enforcement. Moreover, there appears to be a significant drop in enforcement over the past 8 years. In the three-year period of 2001 to 2003 there were a total of 333 prosecutions, or an average of 111 per year. In the three-year period of 2005 to 2007 there were a total of 143 prosecutions or an average of 48 per year. The reason for this drop is unexplained.
While prosecutions have fallen, it does appear that the prosecutions are consistent with the sources of pollution. For 2007, there were 48 prosecutions and 25, or 52.1%, were against agriculture sources. At the same time farming was responsible for 50% of the High Severity incidents of pollution.
Water Pollution and Enforcement in Republic of Ireland: 2006-2008
Three reports from the RoI EPA — EPA Annual Report and Accounts 2008 (EPA), Water Quality in Ireland 2007-2008, Key Indicators of the Aquatic Environment (EPA), and Focus on Environmental Enforcement in Ireland: A report for the years 2006 – 2008 (EPA) — provide data that can be examined to get a sense of the enforcement effort of the EPA on water pollution.
In Water Quality in Ireland 2007-2008, the EPA reports a “dramatic decline in high quality river sites during the last 20 years.” In addition, there have been recent increases in fish kills and pollution at sea incidents, and decreases in bathing water sites meeting EU standards. With regard to the river quality, in 1987 30% of rivers met the standard for high ecological status (not an impressive number even then) whereas by 2008 only 17% met a high standard. The decline is attributed to nutrients, siltation, and acidification resulting from agriculture, forestry and housing development. This assessment derives from traditional measures adopted by EPA and its predecessors since the 1970s.
The EU Water Framework Directive (WFD) (2000) requires that all inland and coastal waters within defined river basin districts (see note) must reach at least “good” status by 2015 and defines how this should be achieved through the establishment of environmental objectives and ecological targets for surface waters. Under more stringent and different standards established under the WFD, EPA reports that 49% of rivers meet the “good” or “high” classification and therefore 51% of rivers will require remedial measures to bring these rivers up to EU standards. It should be noted that under these standards, only 9% of rivers qualify as “high”, even lower than the recent figure of 17% under the older standard. About 45% of lakes, and 40% of estuarine water bodies, will also require remedial measures. Although not covered here, it is worth noting that 67% of groundwater monitoring locations had faecal coliforms in at least one sample. The task of preserving the good and high water bodies, and brining the others up to par, and dealing with deteriorating groundwater, is enormous, especially in tight financial times. Enforcement is one tool that can be used to help achieve these challenging requirements.
The RoI EPA has direct enforcement responsibility for facilities subject to integrated pollution and prevention control (IPCC) licenses, including any discharge to waters or sewers. Otherwise its enforcement activities consist of supervising local authorities in their enforcement by auditing performance of statutory obligations, providing advice and guidance, and, when necessary, issuing binding directions.
Most water quality enforcement responsibilities rest on the shoulders of the local authorities. Some sense of the scope of that local authority responsibility can be gleaned from the fact that there were 5,000 discharge licenses to sewers and waters in 2008, a 40% increase over 2007, mostly from discharges to sewers. And local authorities carried out 8,415 inspections of discharge licenses in 2008.
Between 2006 and 2008 EPA undertook 1,213 investigations or complaints about local authority performance, initiated 263 investigations, and issued 13 directions, about 1% of complaints/investigations. This data covers all matters not just water pollution incidents.
The enforcement authority of the EPA was greatly expanded in 2007 when EPA was empowered to supervise production of drinking water by public authorities and to license wastewater sewage discharges, the last major point source discharge to be regulated by EPA. All discharges from sewerage systems owned, managed and operated by local authorities require a wastewater discharge authorization or certificate granted by the EPA. If the wastewater discharge is from a system serving 500 population equivalent (p.e.), then a license is required; for less that 500 p.e., a certification process applies. The public authority sewage discharge program is still being implemented.
Even prior to the 2007 regulations, the EPA used its powers under Section 63 of the EPA Acts to improve compliance with the existing urban wastewater regulations. During 2006 and 2007, the EPA initiated 55 new investigations in relation to wastewater treatment. Yet around the same time, Ireland was found by the European Court of Justice to have been in violation of failure to comply with the Urban Waste Water Directive (Directive 91/271/EEC) in respect of six areas, Bray, Letterkenny, Shanganagh, Sligo, Tramore and Howth.
In the Annual Report for 2008, the EPA states that it received 207 applications for wastewater discharge licensing through 2008 and that all other applications were due in June 2009. Clearly it will be some time before the agency is prepared to use any enforcement tool to gain some control over wastewater discharges.
The European Communities (Drinking Water) (No.2) Regulations  came into force in 2007. These Regulations provide for the supervision of sanitary authority supplies by the EPA while sanitary authorities continue to be responsible for supervising group scheme supplies. Prior to these Regulations the role of the EPA was restricted to assessment and reporting of monitoring results and the provision of advice and assistance to the local authorities. The EPA now has enforcement powers to serve legally binding Directions on local authorities to take action where there is a quality deficiency in a public water supply. Failure to comply with a direction is an offence, which can lead to prosecution by the EPA.
In 2008, the EPA completed 79 audits (28 in 2007) of local authorities or individual drinking water treatment plants. In response to these audits and to the notifications received during 2008, the EPA issued 45 directions (22 in 2007) to local authorities requiring improvements to the drinking water supplies. The most significant issues identified during the audits were inadequate source protection measures, poor filter operation, inadequate process monitoring and the lack of key alert systems such as chlorine monitors and alarms. [note earlier discussion of problem with operations and management of systems in NI]
The EPA compiled a list of public water supplies where remedial action is required to ensure that the supply is safe and secure. This list is called the ‘Remedial Action List for Public Drinking Water Supplies (RAL)’. The RAL identified just over 400 public water supplies representing over 36% of all public drinking water supplies that required detailed profiling to determine whether the supply needed to be upgraded, improved in respect of operational practices or discontinued to ensure that the water supplied is clean and wholesome. Only 83 public water supplies took corrective action and were removed from the RAL. Here is another major responsibility for EPA to insure that drinking water supplies are safe.
In 2008, the EPA prosecuted one local authority — the first — for failure to comply with a Direction. Galway County Council was directed to install a chlorine monitor and alarm at the Craughwell water treatment plant no later than 31 October 2007. Following an audit in November 2007, at which it was discovered that the chlorine monitor and alarm had not been installed, the EPA initiated legal proceedings. On 23 April 2008 Galway County Council pleaded guilty of failing to comply with the Direction and was fined €4,000 and costs of €5,500 were awarded to the EPA. Following the prosecution Galway County Council installed the chlorine monitor and alarm.
Another area of water pollution enforcement is that focusing on fish kills, and here there is data that allows for a more direct comparison between NI and RoI. Based on investigations carried out by fisheries board environmental staff the following causes were attributed. In 2007 there were 22 fish kills, with 4 from agriculture, 2 from industry, 10 from Local Authorities, 2 from eutrophication, 3 from other, and 1 unknown. In 2008, there were 34 fish kills, with 8 from agriculture, 3 from industry, 6 from Local Authorities, 4 from eutrophication, 6 from other, and 7 unknown. In comparison, there were 22 fish kills in NI in 2008, with 41% resulting from farming practices.
In the Water Quality Report, EPA noted that a marked upsurge in fish kills had occurred in Irish rivers in the 1970s coinciding with the intensification of agriculture. The trend in fish kills over the past 23 years shows that the years 1987 and 1989 were the worst with in excess of 100 fish kills reported annually while 2007 had the least number, only one-fifth of the worst years. The number of such events in 2007 and 2008 show a reduction relative to 2004 and 2005 when 43 and 45 respectively were recorded while 2006 and 2008 had the same number reported.
A fish kill is a sign of catastrophic ecosystem disruption and, while the situation appears to have stabilised somewhat, the number of reported fish kills, at 34 in 2008, remains unacceptably high, as acknowledged by the EPA.
To address pollution events attributed to farming practices, EPA now has another enhanced weapon in its enforcement arsenal — the Good Agricultural Practice Regulations of 2009. These Regulations provide strengthened statutory support for the protection of waters against pollution from agricultural sources and increase the role of the EPA in the enforcement of the Regulations.
The two environmental protection regimes, in NI and RoI, share not just a common island but similar problems with water pollution, notably the impacts from farming practices and waste water discharges from public or quasi-public authorities. Dealing with the farming sector and local authorities/NIWL would also appear to present both regimes with similar political counter pressures.
Under the WFD, the island of Ireland is considered to be one biogeographical unit and has been divided into eight river basin districts (RBDs) or international RBDs (IRBDs) for water management purposes – seven of which fall wholly or partly within the Republic of Ireland. The classifications under the WFD are: “High”, “Good”, “Moderate”, “Poor”, and “Bad”.
Northern Ireland Environment Agency, Water Pollution Incidents and Enforcement 2006, Annual Report
Northern Ireland Environment Agency, Water Pollution Incidents and Enforcement 2007, Annual Report
NI Water Ltd. is a Government Owned Company (GoCo), which is a statutory trading body owned by central government but operating under company legislation, with substantial independence from government. Its function is to provide water and sewerage services in Northern Ireland.
The Water (Northern Ireland) Order 1999.
Sharon Turner and Karen Morrow, Northern Ireland Environmental Law (Dublin: Gill & Macmillan, 1997).
ENVIRONMENTAL PROTECTION AGENCY
EPA Annual Report and Accounts 2008 (EPA).
Water Quality in Ireland 2007-2008, Key Indicators of the Aquatic Environment (EPA).
Focus on Environmental Enforcement in Ireland. A report for the years 2006 – 2008 (EPA).