The report’s overarching conclusion is that Northern Ireland is not on track to meet the 2027 target for achieving the Environmental Objectives in the Water Environment (Water Framework Directive) (Northern Ireland) Regulations 2017 (the 2017 Regulations) or the targets set by the Department of Agriculture, Environment and Rural Affairs (DAERA). Amongst the OEP’s main concerns are that the River Basin Management Plan (RBMP) is almost three years late and the draft RBMP lacks specific objectives and measures. The OEP has also recommended a new public consultation of the draft RBMP to remedy earlier defects.

The Legal Framework

The Water Framework Directive aims to halt the deterioration in the status of EU water bodies and achieve good chemical and ecological status for Europe’s rivers, lakes and groundwater by requiring Member States to use their RBMPs and Programmes of Measures (PoM) to protect and, where necessary, restore, water bodies.

The Directive remains in force in Northern Irish Law post Brexit under the 2017 Regulations. Amongst other obligations, the 2017 Regulations require DAERA to develop RBMPs every six years. 

RBMPs set the legally binding, locally specific environmental objectives that underpin water regulation (such as permitting) and planning activities.

In R. (on the application of Pickering Fishery Association) v Secretary of State for the Environment, Food and Rural Affairs [2023] EWHC 2918 (Admin); [2024] P.T.S.R. 315, the High Court recently examined the requirements for RBMPs under the applicable English and Welsh Regulations. The Court rejected the notion that RBMPs could be wholly generic and did not need to relate to particular water bodies finding that the programme of measures had to focus on whether, when and how the environmental objectives designed for the individual water body would be met. The High Court’s ruling is currently under appeal.

The Report

The OEP notes that recent assessments of the condition of Northern Ireland’s lakes, rivers and other surface waters show that almost seven in ten are not in good ecological condition or on a clear trajectory towards it. The difficulty in achieving the 70% target for all of Northern Ireland’s water bodies is underscored by reports from 2021 which showed that just 31% of surface water bodies were in good ecological condition. 

The report concludes that the 2017 Regulations are not being implemented for Northern Ireland’s lakes, rivers and coastal waters. The OEP is particularly concerned that the last RBMP setting out objectives and measures for the protection and improvement of Northern Irish waters was due by December 2021. However, almost three years later, the draft plan has not been finalised due to delays incurred by the COVID-19 pandemic and the collapse of the Northern Ireland Assembly. The report notes the ‘underlying and seemingly endemic issues’ on robust delivery, governance arrangements and funding allocation that prevent progress on the application of Northern Ireland’s environmental law on water.

The report notes that the current draft of the RBMP should be significantly strengthened by including specific environmental objectives for all individual water bodies with a detailed programme of measures and details of the requisite funding. The OEP is concerned that there does not appear to be a clear trajectory or specific outcomes for good ecological status and that the draft plan’s intentions regarding chemical status are unclear despite the fact that the presence of certain ubiquitous, persistent, bio-accumulative and toxic chemicals is reportedly causing all surface water bodies in Northern Ireland to fail their Good Chemical Status Objective.

In the current draft, DAERA proposes to only produce a single RBMP covering all three River Basin Districts. Following the High Court’s approach in Pickering, the OEP criticises this generic approach and the proposal to set a ‘working target’ for 70% of Northern Ireland’s water bodies to achieve ‘Good Status’ by 2027 instead of setting specific objectives for individual water bodies. This may not meet the requirements of the 2017 Regulations for RBMPs to contain a full set of water body level Environmental Objectives. In any event, the report notes that it is likely that the 2027 target for achieving the Environmental Objectives will be missed by a considerable margin.

Furthermore, whilst not wishing for any further delays, the OEP nonetheless recommends that DAERA considers engaging in a new public consultation to remedy earlier public engagement gaps on the Environmental Objectives and produce a supplementary delivery plan to support the RBMP if required.

DAERA now has three months to lay its response to the report before the Northern Ireland Assembly.

The report recommends several key measures to address the issues currently impeding progress. They are:
(i)    Publishing and implementing the final third cycle plan without further delay.
(ii)    Setting specific Environmental Objectives.
(iii)    Determining specific measures to achieve Environmental Objectives.
(iv)    Presenting a clear investment analysis and ensuring sufficient investment in measures to achieve Environmental Objectives.
(v)    Addressing all of the main pressures and drivers.
(vi)    Providing clear governance arrangements for practical delivery.
(vii)    Filling gaps in monitoring.

The stark example of Lough Neagh

Lough Neagh is a particularly stark example of the decline in the state of Northern Ireland’s water bodies. The Lough is the UK and Ireland’s biggest lake, a Ramsar site, European Special Protection Area and a Northern Ireland Area of Special Scientific Interest. It also supplies 40% of Northern Ireland’s drinking water. 

The Lough has recently attracted significant attention due to the catastrophic impact of recurrent algal blooms which are likely to be caused by fertilizer run off from farming. The poor condition of the water, which has resembled a thick, green soup due to the algal blooms, has restricted both commercial and recreational use of the Lough and generated significant local concern.

The Lough is mentioned in the OEP report as a ‘prime example’ of the recent stagnation and decline in the state of Northern Ireland’s water bodies.

Conclusion

The OEP’s report demonstrates the urgent need for tangible and effective plans and measures to manage the effects of human activities on water bodies in Northern Ireland. A revised draft plan following an adequate consultation process and the allocation of necessary funding will be crucial to implementing specific, time-bound measures that comply with the requirements of the 2017 Regulations. 
As discussed in the report and the recent case of Pickering, a wholly generic approach is not enough. RBMPs must contain a focussed programme of measures detailing whether, when and how the environmental objectives designed for individual water bodies would be met.

Claire Nevin is a barrister at Francis Taylor Building specialising in environmental, planning and public law. She is particularly interested and experienced in working on complex issues of domestic, EU and international environmental law. Before coming to the Bar, Claire had a successful career working for international human rights organisations and NGOs.