Mr. John Kenny:

There are fundamental problems with the Bill, as drafted, and it is my view that it will be in breach of the water framework, environmental impact assessment and the habitats directives. It requires substantial redrafting.

The headline matters are as follows. The first is water framework directive compliance, as the heads of the Bill are not consistent with the requirements of the directive, which it purports to transpose. Article 11.3 of the water framework directive requires the establishment of "controls over the abstraction of fresh surface water and groundwater ... including a register or registers of water abstractions and a requirement of prior authorisation for abstraction." It allows that "member states can exempt from these controls, abstractions ... which have no significant impact on water status", and it is clear that registration and licensing of all abstractions is required unless it can be demonstrated that these do not have a significant impact. That is, there is a presumption of registration and licensing. The proposed Bill, on the other hand, appears to proceed on the assumption of non-registration unless significant environmental effects have been identified. That has the effect of the standing the water framework directive on its head.

The Bill will not have fulfilled its primary purpose unless it reverses the presumption such that only de minimisabstractions are excluded. The exemption in Article 11 presupposes that even such de minimis abstractions are at least measured and assessed in the first instance before an exemption can be granted. That is not reflected in the Bill.

The legislation proposes to approach existing licences differently to new licence applications. It does not provide for the legal means to refuse a licence to an existing abstractor. This has significant implications if those existing abstractions are found to be having negative environmental impacts. Simply because an activity has been in operation for a certain period does not exempt or reduce the obligation to comply with the stringent requirements of the water framework, habitats or the environmental impact assessment directives. There is simply no warrant in the water framework directive for the head 11 proposal to allow existing extractions to continue effectively undisturbed. Head 11 should be removed entirely and replaced with a section allowing a 12-month transitional period.

There is a 250 cu. m threshold and no licences under 250 cu. m will be required to seek a licence, regardless of their potential impact. There is no scientific rationale for this threshold, and recent Court of Justice of the European Union case law makes clear that unjustified and unjustifiable thresholds are incompatible with the environmental impact assessment directive. As the Bill is currently drafted, there is no provision for an environmental assessment at all below 250 cu. m extraction levels and there is simply no scientific basis or data upon which to base any such decision. The same observation applies to the 25 cu. m and 2,000 cu. m thresholds.

Head 10 adopts a unique approach to licensing, where, in effect, the EPA is under an obligation to identify water bodies at risk and where significant abstractions are occurring. It is then under further obligation to initiate contact with those significant abstractors to bring those abstractors into the regulatory net. There is no warrant for this approach in the water framework directive and it is a recipe for significant abstractors to continue their activities in an entirely licensed fashion. There is no comparable model used for licensing anywhere in Ireland and, with respect, no justification for introducing it in this context.

There are three recommendations from SWAN, based on our research to date. Licensing and registration thresholds should be significantly reduced in line with those used in Northern Ireland, with general binding rules introduced for all abstractions, irrespective of quantity. Head 11, which confers special exemptions on existing abstractions, should be removed entirely. The Bill should provide for responsive licensing to allow licences to be amended if and when necessary, similar to Northern Ireland. I thank the committee for its time.