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John Gormley, T.D., Minister for Environment Department of Environment, Customs House, Dublin 1 2 September, 2009 by Email: [email protected]

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John Gormley, T.D., Minister for Environment Department of Environment, Customs House, Dublin 1 2 September, 2009 by Email: Minister@Environ.Ie Kilcatherine, Eyeries, County Cork http://www.friendsoftheirishenvironment.org John Gormley, T.D., Minister for Environment Department of Environment, Customs House, Dublin 1 2 September, 2009 by email: [email protected] Re: Peat extraction in County Westmeath: request for an application under S.I. NO. 378 OF 2005 to prohibit the continuance of an operation or activity Dear Minister; You will be aware that we wrote to you on 28 July, 2009 requesting you to exercise your powers under S.I. NO. 94 of 1997 (as amended) to prohibit the continuance of industrial scale peat extraction activities which are having a significant adverse effect on a designated European Site [Lough Derravaragh SPA, Site Code SPA 0004043 / NHA Site Code 000684]. We are in receipt of your letter of 19 August 2009 in which you state that ‘Regional management has reported that there is no evidence of significant or measurable impacts in either designated site, nor any evidence of impacts on any qualifying conservation interests in these sites. There is therefore no evidence available to the Minister to support a court application such as you have requested.’ We attach a Report by the District Conservation Ranger of 27 February 2009 [Annex I] which states that the relevant peat extraction ‘is likely to have an adverse effect on the integrity of the SPA alone and in combination with other activities’. To quote: ‘I believe that through their operations [name removed] are contributing to siltation of Lough Derravaragh SPA and NHA. This is mainly from inadequate silt traps/ lack of silt traps and from peat Tel & Fax: 353 (0)27 74771 [email protected] Friends of the Irish Environment is a company limited by guarantee registered in Ireland. Registered Office: Allihies Co Cork Company No. 326985. Directors: Caroline Lewis, Tony Lowes. particles being blown into the river from the above mentioned mounds of dry peat. This material is then probably carried in suspension in the River Inny to Lough Derravaragh. While the activities carried out by this company are not being carried out within the European Site or NHA, I believe that they are likely to have an adverse effect on the integrity of the SPA alone and in combination with other activities.’ We also attach the Shannon Regional Fisheries Board Preliminary Report for this location dated November 2008 [Annex II] which confirms the ongoing pollution, the lack of regulation, and the inadequate mitigation measures and concludes that ‘The extraction of peat moss from bogs for use in horticulture and gardening is a major threat to the future conservation of bog lands in the North Westmeath area.’ This Report also records that previous studies have shown that the over exploitation of peatland resources in the affected area can cause environmental effects on the River Inny system [of which Lough Derravaragh is a part] and include nutrient enrichment. The Site Synopsis for Lough Derravaragh states that nutrient enrichment is a threat to the bird populations, especially the diving ducks, species which are protected at this location. An EPA site visit to the location of 10 July 2009 resulted in a determination that the activities taking place required licensing and we attach that report [Annex III], notwithstanding its inadequacy and inexplicable limitation to one operator at this site. Finally we attach again the Royal Academy paper confirming that ‘The deposition of peat silt is particularly acute in parts of the River Shannon, e.g. in the River Suck, the Little Brosna and the Inny’. [Annex VII] This report records that ‘in Lough Derg, peat deposits can range from 1 to 3 metres in depth’. You will note that the Conservation Ranger reported that the Fisheries Board had measured peat siltation to a depth of 6 feet at the top of Lough Derravaragh. Siltation at these levels is not compatible with the protection of the qualifying interests of this protected site, which include protected wildfowl of international importance. All of these Reports were available to your Regional Management, who had commissioned and received the Report of the District Conservation Ranger of 27 February 2009 [above, and Annex I]. None the less, Regional Management wrote as follows on 14 July, 2009: ‘In short ;-The site where the peat extraction is ongoing is not in a NHA SAC SPA or pNHA, there is no evidence of significant (or any measurable ) impacts in any nearby designated site there is no evidence of impacts on any qualifying interests for same . If evidence of negative impacts exists is not in the relevant NPWS files here.’ [Full text in Annex IV.] It is presumably this view – which misrepresents the contents of the NPWS files – that formed the basis of your letter to us of 19 August, 2009. We would remind you of the government’s obligations under Articles 6(2) and (3) of the Habitats Directive: 6(2) Member States shall take appropriate steps to avoid, in the special areas of conservation [and special protection areas for birds], 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. 6(3) Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.” In terms of Ireland’s implementing legislation, we would highlight your obligations and powers under the European Communities (Natural Habitats) Regulations 1997 (SI No 94 of 1997) as amended, in particular for present purposes, by SI No 378 of 2005. In particular, we would draw to your attention the contents of regulations 13(3), 17(1) and 34: 13(3) The Minister shall take the appropriate steps to avoid, in the special areas of conservation designated under Regulation 9, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated insofar as such disturbance could be significant in relation to the objectives of the Habitats Directive. 17(1) Where the Minister forms an opinion that an operation or activity is being carried out or may be carried out on a European Site which is neither directly connected with nor necessary to the management of the site but likely to have a significant effect thereon either individually or in combination with other operations or activities the Minister may, in view of the site's conservation objectives, make an application under this Regulation to a Court of competent jurisdiction to prohibit the commencement or continuance of the operation or activity. 34. The provisions of Regulations 4, 5, 7, 13, 14, 15, 16, 17 and 18 shall, where appropriate, apply with any necessary modifications to areas classified pursuant to paragraph 1 and 2 of Article 4 of the Birds Directive. In light of the above information, we believe that you are legally obliged to take action in the present case, pursuant to the above legislative provisions. We note that your Authority was used to mislead local authorities when on your behalf on 16 February 2008 the Director of the Parks and Wildlife Service wrote to all County Managers that on the basis of the ‘scientific advice’ available to you, where the hen harrier is the only interest feature present in a protected nature conservation area, that species’ presence should not be cited as a ground for refusal for development consent in respect of one-off housing, notwithstanding a known problem with cumulative effects. Our investigations have shown that no such scientific advice existed and this has been confirmed to us by the Assistant Director of the Parks and Wildlife Service on 3 March 2009. [Annex IV] We have also confirmed that last year Ireland approved the planting of 666 hectares of non-native conifers managed through clearfell within areas proposed for designation for the Hen harrier on the basis of a Protocol drafted by your National Parks and Wildlife Service [Annex VI]. This Protocol was based on research which was not peer reviewed and which runs contrary to the unanimous scientific agreement that this form of forestry will cause the permanent loss of the protected species’ habitat. It would appear to us that systemic problems within your National Parks and Wildlife Service are leading to persistent infringements of European Directives which are prejudicial to your interests and are bringing your office into disrepute. Having now provided you with the evidence actually available to support a court application such as we have requested, we would be grateful if you re-examined the position outlined in your letter to us of 19 August 2009. Respectfully yours, Tony Lowes ANNEX SCHEDULE I: Report commissioned by NPWS Regional Management and prepared by the North Westmeath Conservation Ranger, National Parks and Wildlife Service, 27 February 2009 on peat extraction on bogs near Lough Derravaragh confirming impact on designated site. II: Preliminary Report on Peat Siltation in the River Inny, Shannon Regional Fisheries Board, November 2008, identifying the extraction of peat moss from bogs for use in horticulture and gardening as ‘a major threat to the future conservation of bog lands in the North Westmeath area.’ III: EPA Site Inspection Report, 10 July 2009.
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