Mr. Denis Maher:

Yes. The Department and its agency, Inland Fisheries Ireland, IFI, appreciate the opportunity to come before the committee to clarify the role of the Department and IFI in respect of matters concerning the weir in Fermoy. It is a joint statement because IFI and the Department and have worked very closely for more than a decade in supporting the council in terms of its responsibilities in respect of the fisheries element. I extend the apologies of the chief executive of IFI, Dr. Ciaran Byrne, who is on annual leave, as is the regional director in the south west, who has been dealing with the council on an ongoing basis. Dr. Forde and I have both been involved heavily in the matter also.

It is important to clarify for the committee that the conflation of two distinct issues has caused some confusion in the matter over the years. The Department and IFI would wish to assist the committee in understanding those two issues. The substantive issue is the repairs or restoration works required to the weir in Fermoy. The works required there are entirely a matter for the county council and are not a fisheries matter for the Department or IFI. The fundamental issue in this regard is that Cork County Council is the authority responsible for carrying out and funding works in respect of the restoration and repair of its own infrastructure. Local authorities are responsible for their own infrastructure. The Department of Communications, Climate Action and Environment and IFI have no remit in the carrying out or funding of the required repair works. Our responsibilities are entirely of a regulatory and advisory nature relating to the inland fisheries resource. In that regard and to assist the committee, the focus of our evidence today is necessarily on the ancillary issue of fish passage, as the main issue of repairs or works to the weir is not within the remit of the Department or IFI. That matter can only be adequately addressed, as it has been, by the council.

On funding, the council has previously advised the Department and IFI that it had received a response to its request for funding from its parent Department, the Department of Housing, Planning and Local Government, indicating that the permanent works could be progressed in the context of the river basin programme of that Department. It is understood that to accommodate the Fermoy rowing club and other community interests, the removal of the weir was not recommended. The optimal solution proposed is still to effect repairs to the weir and build a new fish pass. Our regulatory role is to support and advise the council on the issue of incorporating fish passage into whatever works it seeks to undertake as an element of the overall programme, in order that such works would comply with the habitats directive and avoid EU proceedings and potential large fines down the line. It is understood that the then Fermoy Town Council, now Cork County Council, originally agreed the repair works would be undertaken by the Office of Public Works, OPW. The OPW is here and may address that. That is our understanding of matters. Despite repeated clarification from my Department and from IFI about our advisory and regulatory roles and responsibilities, there is continuing inaccurate conflation of the overall issue of works required to the weir, which rests with the council, and the need to include the attendant issue of compliance with fish passage requirements under EU legislation.

In respect of our involvement, an important but entirely ancillary matter to whatever reinstatement or repair works are undertaken is the issue of fish passage. Our role is to ensure that the outcome of such works by the council complies with the requirements of EU environmental legislation, most notably the habitats directive.

An important aspect of this ancillary issue is that a complaint was made to the European Commission in 2005. The council has given a history since 2009 but this goes back some way further as to the fish passage issue. The complaint was that free passage for both salmon and lamprey was not afforded by the weir in contravention of the Habitats Directive under which both those species are protected. That complaint, 2004/4328, was made anonymously and was first indicated at a package meeting between the then Department of Arts, Heritage and the Gaeltacht and the European Commission in 2005.

In April 2006 our Department issued a response to the European Commission on fish passage indicating that the then Fermoy Town Council was the owner of the weir and that we were going to undertake some works on it. The Commission advised

that it would hold off on the issuing of infringement proceedings.

I understand informal contact has been made recently by the European Commission with the Department of Culture, Heritage and the Gaeltacht seeking an update on matters regarding the fish passage issue but I have no formal confirmation of that, other than an indication in a telephone call from that Department.

It is important to reiterate that the repairs required to Fermoy weir are a matter entirely for the local authority. The role of Department of Communications, Climate Action and Environment and Inland Fisheries Ireland, IFI, relates solely to the ancillary matter of fish passage and ensuring that whatever works are undertaken by Cork County Council comply with the requirements of the EU Habitats Directive as regards fish passage and to assume any a role in the repair works issue would be at variance with our regulatory and advisory functions.

There has been ongoing liaison between our Department, IFI, and the council on the permanent solution to the ancillary fish passage issue and the council’s responsibilities therein. IFI’s and the Department’s role in this matter is entirely regulatory and specifically includes advising how any works proposed by the council comply with the directive.

Following a full range of consultation and liaison, engineering advisers for the council and the Department of Communications, Climate Action and Environment agreed in mid-2014 the essential details, as confirmed by the council, of the ancillary fish passage solution - a bypass channel - to meet the regulatory requirements. The Department and IFI remain committed to assisting the council with this element of any proposed works by way of technical advice in line with our regulatory function.

As the Department of Communications, Climate Action and Environment and IFI were satisfied that the bypass channel proposal met the requirement of the Habitats Directive, in July 2014 the then Minister of State, at the request of the council, agreed to vary the ministerial order originally issued in 2009 to resolve fish passage issue and satisfy the requirements of the Habitats Directive. The local IFI regional director has engaged regularly with the council since July 2016 in an attempt to progress the project. In the absence of any progress, myself and the IFI regional director travelled to Fermoy to met the council in November 2017. The council advised that it was engaged in land acquisition to facilitate the fish passage bypass and we asked for an update on the timelines for that. The Part 8 planning process was about to commence and would come before the elected representatives for approval.

In December, two months later, the council issued a request seeking funding assistance from a number of Government Departments, including our own, and we replied to the council’s letter on 11 January 2018. We reiterated in our response the advice given to the council at the meeting in November 2017, in all previous engagements and in numerous items of correspondence that the Department has no voted funds for such works and that, as the regulatory authority for the fisheries sector, the appropriate course of action is to provide technical advice to infrastructure owners, in this case Cork County Council, in their efforts to ensure compliance with the Habitats Directive. The Department and IFI, acting in their regulatory capacity, have consistently offered to support a funding application to the appropriate Government Department or Departments.

In that regard we have sought to progress matters with the council in relation to the ancillary fish passage issue but it is understood that the main issue of repairs and works to the existing weir remains to be progressed by the council.

In October 2018, our then Minister of State, Deputy Seán Kyne, was in Cork and agreed to meet with three groups in Fermoy, namely, council officials and councillors, local public representatives and stakeholders, some of whom are present today, to outline our role and responsibility, which I have outlined today. He also undertook to write to the relevant Ministers, saying he would be supportive of a central funding bid. He wrote to all the local representatives he met on the day to garner support for such a central Government proposal on the understanding that this issue was outside our remit. However, he offered to move it forward, one might say, politically.

Our new Minister of State, Deputy Seán Canney, wrote again to local Deputies and Ministers to try to progress matters. The Minister of State, Deputy Canney, also reiterated our responsibilities in this matter and that, as a regulator, it is not within our function to pay for the works to the weir. I reiterate that the conflation of the two issues here is important for clarity to committee members. The issue of works and restoration and repair to Fermoy weir is one thing. This is a protected structure. The original complaint was in 2005 and in 2009 the structure was designated a protected structure, which post-dates the original complaint made on the fish passage issue. The repair to the weir and the fish passage are separate issues but incorporating both is very important. If one repairs the weir without a fish passage, one is completely out of compliance with the regulatory requirement and the Habitats Directive.

I am happy to take questions at a later stage but that is an outline of our position.