The High Court heard allegations on Tuesday that the Department of Housing failed to adequately account for the need to protect water quality in Ireland’s fifth Nitrates Action Programme, which is intended to run to 2025.

An Taisce’s senior counsel Mr James Devlin argued that areas of the plan fail to take account of the nitrates derogation’s impact on water quality, particularly in Natura 2000 areas, when kicking off the first day of the High Court’s review of the plan.

The State’s defence of the plan in documents submitted to the court, contend that measures contained in the plan are protective with regard to water quality, according to Mr Devlin’s statements on Tuesday.

An Taisce’s argument centres around the plan’s mitigation measures being ineffective in safeguarding water quality, with the group alleging that the State’s analysis of areas of the plan including buffer zones and soil phosphorous testing requirements, do not rule out adverse impacts beyond “reasonable scientific doubt”.

An Taisce said that the impact on sites designated as Special Areas of Conservation (SAC) and Special Protected Areas (SPA) does “not seem to be part of the derogation”.

Mr Devlin stated that current trends are showing a “continuous and sustained decline in water quality” 30 years after the introduction of the Nitrates Directive, when disagreeing with the State’s assertion that the plan sufficiently protects waterways from nutrients.

‘Inherently protective’

It rejects claims made “by the State and the other parties” in defence of the plan that the arguments submitted by An Taisce “failed to grasp” that its measures are “inherently protective and aimed at reducing adverse effects on water quality”.

Mr Devlin argued for An Taisce that “We say it’s not, particularly in the context of the derogation”.

The State, or notice parties to the court review which includes representatives of the Irish Farmers’ Association (IFA) and Irish Creamery Milk Suppliers Association (ICMSA), had yet to make their arguments as the first day’s proceedings concluded on Tuesday.

The court also heard that the State lists an interim review of the effectiveness of the programme as being a mitigation measure in and of itself.

An Taisce argued that this “doesn’t meet the requirement for what a mitigation measure is meant to do” as it will not safeguard against negative impacts arising from the plan itself, it will only identify that measures in play are not effective after the plan was authorised.

Derogation sought

It was highlighted that the derogation was requested by Ireland, with Mr Devlin emphasising that the derogation had been requested.

He claimed that by looking at the public consultations and the official responses to the consultations, “you might have the impression” that you have to request the derogation, the suggestion is that it really is a matter for the Commission”.

“But the key point is that you have to look for the derogation, they don’t force it down your throat,” he said. The court was given “an idea of the scale of the derogation” in An Taisce’s opening of the case, which was stated to be 4.9% of farms with grazing animals, 15.9% of the total livestock units and 9.6% of the total net agricultural area of the State.