Oireachtas Joint and Select Committees
Thursday, 5 November 2020
Joint Oireachtas Committee on Housing, Planning and Local Government
General Scheme of the Water Environment (Abstractions) Bill 2020: Discussion (Resumed)
I welcome our witnesses in the room and online. We are joined in person by Dr. Eimear Cotter and Ms Mary Gurrie of the Environmental Protection Agency, EPA, and we are joined on video by Ms Marie O'Connor and Dr. Matthew Craig, also of the EPA, and by Ms Sinead O'Brien, Dr. Elaine McGoff, Mr. John Kenny and Dr. Kieran Craven from Sustainable Water Networks Ireland, SWAN. Members have been circulated with the opening statements, as well as a more detailed briefing note. I first will ask the EPA to make its opening statement, followed by SWAN, and members will then be invited to address their questions. If members confine their questions to five minutes in the first round, we will be able to go around a second time. The five minutes is for asking the questions and receiving the answer. I think we will be able to get round for a second round of questions.
Witnesses attending in the committee room are protected by absolute privilege in respect of the presentation they make to the committee. This means they have an absolute defence against any defamation action for anything they say at the meeting. They are expected not to abuse this privilege, however, and it is my duty as Chair to ensure this privilege is not abused. If witnesses' statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction. For witnesses attending remotely, there are some limitations to parliamentary privilege and, as such, they may not benefit from the same level of immunity from legal proceedings as a witness physically present does.
Witnesses are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House or an official either by name or in such a way as to make him or her identifiable. The opening statements submitted to the committee will be posted on the committee website after this meeting.
I invite the EPA to make its opening statement.
Dr. Eimear Cotter:
I thank the committee for inviting the EPA to discuss the general scheme of the water environment (abstractions) Bill. I am joined in the committee room by Ms Mary Gurrie, a programme manager in the EPA, and remotely by Ms Marie O'Connor, also a programme manager in the EPA, and Dr. Matthew Craig.
The agency has a wide range of responsibilities as environmental regulator, knowledge provider and advocate. Specifically related to water quality, the EPA conducts national monitoring programmes to assess water quality and a national hydrometric monitoring programme to assess flow and levels in rivers, groundwater and lakes. In addition, the EPA’s regulatory activities include the authorisation of industrial, waste and wastewater facilities and the enforcement of those authorisations.
The general scheme of the water environment (abstractions) Bill proposes new responsibilities for the EPA related to licensing of large and significant water abstractions. This follows on from legislation published in 2018, which established a register of abstractions and which is maintained by the EPA. Overall, these measures are designed to protect water bodies from excessive levels of water abstraction and give effect to the water framework directive, which requires the protection or restoration to good status of all surface and groundwater bodies.
The EPA welcomes the measures in the heads of the Bill. These measures will improve the monitoring and regulatory control of large and significant water abstractions in Ireland. The measures will ensure the requirements of the water framework directive regarding the control of abstractions are met, as well as supporting European reporting requirements.
While registration and control of significant water abstractions is required under the water framework directive, EPA analysis indicates that, overall, water abstraction in Ireland is not a major issue for achievement of good status of water bodies. This is based on a quantitative risk assessment of existing water abstractions conducted by the EPA, which informed the River Basin Management Plan for Ireland 2018-2021. This assessment showed that the level of risk due to abstractions is low, at approximately 6% of all water bodies.
The EPA welcomes the risk-based approach for the proposed licensing regime. This means that abstractions considered low risk to the environment will be addressed by way of registration or general binding rules or both, while medium and higher-risk abstractions will require an assessment of the significance of the abstraction on the environment and licensing where appropriate. This approach balances environmental protection, such as protection of ecology and overall water quality, in a proportionate way while minimising costs and administrative burden.
It is estimated by the EPA that approximately 490 abstractions will require an authorisation. These are abstractions over 250 cu. m per day and include drinking water supply and water abstraction by industry. For the purposes of accountability and transparency, the EPA will publish a guidance document for consultation setting out the principles of authorisation, the assessment methods used and the basis for decision-making following enactment of the primary and secondary legislation. We propose to engage directly with stakeholders in this regard.
The heads of the Bill also include provision for environmental impact assessment, EIA, and appropriate assessment under the European Communities (Birds and Natural Habitats) Regulations 2011. The EPA expects detailed process steps for EIA in accordance with EU Directive 2014/52/EU and as it relates to the EPA’s abstraction licensing functions, to be set out in secondary legislation.
The national register of water abstractions was established in 2018 and is maintained by the EPA. This requires that abstractions of greater than 25 cu. m per day be registered. By November 2020, a total of 1,583 abstraction registrations have been received by the EPA and these are estimated to account for approximately 95% of all water abstracted. The EPA is continuing to promote and secure compliance with the register by engaging with the relevant sectors including agriculture, industry, commercial and golf courses.
In summary, the EPA welcomes the registration and control of significant water abstractions in Ireland to improve understanding of where abstractions are causing a water pressure and to better manage abstractions in areas of high risk in the future. In particular, a risk-based approach for the licensing regime allows the regulatory effort to be directed to where the environmental risk is greatest. The EPA looks forward to the finalising of the Bill and associated regulations to establish the licensing regime. The EPA continues to maintain the national register of water abstractions, which it has done since 2018, in order that there is one national register of water abstractions in Ireland and it continues to engage with those sectors that are required to register their abstraction to improve compliance levels.
Ms Sinead O'Brien:
I thank the committee for the invitation to give evidence. It is based on independent desk research published in October by SWAN and circulated to members. I am joined by three experts, namely. Dr. Elaine McGoff, freshwater ecologist with An Taisce; and Mr. John Kenny, barrister, and Dr. Kieran Craven, who are co-authors of the report.
I will start with a few comments on the significance of abstraction as a pressure on our environment and then Dr. McGoff will say something about the thresholds in the Bill as they compare with other jurisdictions. Mr. Kenny will comment on legal deficiencies in the Bill and Dr. Craven will be available for addressing technical queries.
SWAN fully acknowledges that abstraction is currently not the most significant pressure on Ireland's waters at national level. Nonetheless, our research has identified significant risks. It can pose a significant risk at local level to vulnerable water bodies, their adjoining habitats, such as groundwater dependent ecosystems and rural domestic wells. It can impact on the hydrology and ecology of water bodies, including base flow reductions in rivers, fluctuating water levels in lakes and reduced levels of groundwater. It is also important to note that even small abstractions can have a significant impact on certain sites and this is exacerbated by the cumulative impact of multiple abstractions from a water body. These impacts are variable across seasons, which will be exacerbated by climate change.
A report this year from the Environmental Protection Agency, EPA, predicted we could have an up to 50% increase in extended drought periods by the middle of the century. We really need to future-proof our water management.
Abstraction pressures are likely to increase with increased economic growth, including agricultural intensification. In order to manage abstractions, we need to know where the abstractions are, how much is being abstracted and who is doing the abstracting. Research commissioned by the EPA and led by Trinity argues, "Progress on evaluating the current status of abstraction for Irish rivers ... was severely hampered by the lack of an integrated national database of abstraction" and, critically, we contend we still do not have that integrated national database and the proposed Bill will not address this deficit or the others I have outlined. My colleagues will now provide the detailed rationale and legal analysis to support that contention.
Dr. Elaine McGoff:
I will be discussing the thresholds in the Bill and how they compare with other jurisdictions. This Bill purports to mirror the system which they have in place for Northern Ireland and Scotland. However, we highlight that it is far more lenient. I will focus first on the registration of abstractions which is proposed at 25 cu. m. This compares with 10 cu. m in Northern Ireland and Scotland, meaning the threshold is 150% higher. Below this there will be zero record of who is abstracting water, where and at what rate. If these abstractions are unknown to the authorities, there is no way to manage them.
For licensing, this Bill proposes that any abstraction over 2,000 cu. m would require a licence but this is 100 times higher than what is in place in Northern Ireland, England and Wales. No rationale is provided for setting it so high, and very few abstractions will ever hit that threshold.
While there is a provision for abstractions between 250 cu. m and 2,000 cu. m being subject to a licence, this is only where the risk is deemed significant by the EPA, and it is our contention that the EPA risk assessment is lacking because it does not take into account a significant proportion of abstractions, which are, and will remain under this Bill, unaccounted for. Similarly, even when abstractions are registered or licensed, the Bill does not provide for the means to adjust, pause or revoke a licence if conditions change, such as if there was an impact on the environment or on adjacent private wells. In Northern Ireland the regulations provide for this, and this responsive approach is an essential part of any effective management system, especially in light of far more frequent droughts under climate change projections.
I will now hand over to my colleague, Mr. Kenny, who will outline the legal issues.
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.
I ask members to keep their questions and responses to five minutes. I will give an indication when we reach the end of a designated slot. I understand Mr. Kenny may have to leave early to attend court so if members have questions related to law on the SWAN submission, I suggest they address them to Mr. Kenny first in case he has to leave.
I thank the witnesses for the presentation. I will address questions to the EPA and SWAN but if we do not get to the answers in this round, I might get them in a further round later.
From our session with departmental officials last week, one of the key ideas we are trying to grasp is why the heads have settled on the 25 cu. m and 2,000 cu. m thresholds. My first question to the EPA is for it to provide more detail on the scientific and data basis for it. There is also the very significant deviation in both of those from regimes in the North, in Scotland and other EU jurisdictions, as highlighted in a briefing note we received from the Library and Research service in the Oireachtas.
I am also a little confused by the general binding rules. There does not appear to be enforcement and nobody has the power to ensure these rules are being adhered to. It seems a light touch regulatory regime and I would like the EPA's view on how this can be monitored and enforced.
There was mention that of the current levels of registrations under this regime, 30% will come under the new regulatory framework. This is not broken down in terms of the numbers that will be registered or licensed. I am particularly interested to know, of the current level of abstractions of which the EPA is aware, how many will end up being licensed. That is the only firm regulatory framework in front of us. Will the register be public? What is the EPA's understanding of why the Department has chosen the idea of indefinite licences. There is no other licensing regime operating in the State that grants somebody an indefinite licence.
It was indicated that the 1,583 abstraction registrations in place are 95% of all abstractions.
How do the witnesses know that, given that there is no requirement on anybody currently abstracting 25 cu. m or less per day to register?
There seem to be two major differences between the two presentations. The EPA presentation seemed to say that there is a low level of risk from abstraction whereas SWAN seems to think that at a regional level and in times of potential drought or limited water supply, there is a greater level of risk. Could the witnesses from SWAN discuss this? What is their view of the data source on which all this is based? Do they think it is adequate?
Could the witnesses from SWAN give us their view on 25 cu. m and 2,000 cu. m thresholds and explain why SWAN is arguing for 10 cu. m? My last question is for the witnesses from both the EPA and SWAN. We keep hearing that about 6% of our water sources may be at risk from abstraction but at the same time, we know that about 32% of our water sources are at risk of breaches of the water framework directive. Could the witnesses explain to a non-technical person like me the difference between those two figures so we have a full sense of the level of risk?
Dr. Eimear Cotter:
I will explain matters with regard to the water framework directive while Ms O'Connor might answer take up the questions around indefinite licences and reviews. Overall, the first question is about the figure of 25 cu. m and the various thresholds. The starting point for us is looking at this from a risk point of view. As the Deputy said in his last question, approximately 6% of water bodies in Ireland are at environmental risk due to water abstraction. That is our starting point for looking at what is in the general scheme of this Bill. We are very much focused on where those large volumes of abstractions are and whether we can focus the regulatory effort on those larger volumes to allow them to come into the EPA in terms of licensing. I know there has been much discussion about the 25 cu. m per day threshold. From our point of view, that is a reasonable threshold. Above that, focusing on the larger abstractions, be it medium level, greater than 250 cu. m or up to 2,000 cu. m, where they cause a significant risk, they would come into the licensing regime and those larger ones of over 2,000 cu. m will come in anyway irrespective. With our analysis, technical information and scientific data, they are reasonable thresholds to allow this risk-based approach where we would focus the regulatory effort on those areas that are likely to pose the greatest environmental risk. This means we can ensure adequate environmental protection is balanced in a proportionate way with the administrative and costs issues.
All abstractions are subject to general binding rules as set out in the scheme of the Bill so irrespective of the threshold, we would welcome some clarity on who will enforce the general binding rules. That would be useful. There is a requirement in the scheme that before we issue a licence, the EPA will need to determine compliance with the general binding rules. Again, this begs the question of who will enforce those general binding rules.
Regarding the current level of abstractions, a total of 1,583 abstractions are registered. We estimate that 490 of those will require a licence, that is, looking above the 250 cu. m per day threshold right up to the larger level of abstractions. That work is ongoing. It involves assessing the number of licences that would come into us - of course, we will be waiting for the legislation to be enacted - and running the risk assessment provided for under head 2 that looks at the cumulative impact of water abstractions. Based on that, that will give us the information to say who is abstracting, who is posing a significant risk and who needs to come into the EPA for a licence. I will hand to Ms Gurrie regarding the thresholds and the volume of abstractions; the 95%.
Ms Mary Gurrie:
I will cover the risk assessment first and the figure of 6%. The EPA is tasked under the water framework directive and the regulations with characterising the pressures on our water bodies. We do that every river-based management plan cycle. We use all our monitoring data for our rivers and lakes - all our water bodies, transitional and coastal, and groundwater - and look at the pressures that might be causing the water body to be at risk of not meeting the objective. The objective is either good or high status, depending on the water body. The assessment of all the pressures is what comes up with the 32% at-risk figure. That is then broken down into types of pressure such as agriculture, urban wastewater, forestry, abstractions - all the different types of human activities that can have an impact. A total of 50% are impacted by agriculture but a water body can be impacted by multiple pressures so that is where the numbers come in. The assessment for abstractions, which was done for the last river-based management plan, came up with a figure of 6%. That used the data based on our knowledge of abstractions at the time. We oversee the national hydrometric monitoring programme so we have all the river flow data levels and we have the water quality information so that all gets put into a model and comes up with the assessment of 6%-----
Ms Mary Gurrie:
We run all the numbers. That came up with the figure of 6% at the time, which is in the rivers, lakes and groundwater. That assessment will be run again and will use the more up-to-date data from the register, our current water quality information and our more up-to-date flows. It will take into account all our newer and better data.
I thank all the witnesses for appearing before us to talk us through this in greater detail. My question is really for the EPA. The witnesses from the EPA mentioned that over 1,500 have already been registered on its registration database. Do the witnesses think this system is working well or would they like to see it moved to a statutory footing? The witnesses from SWAN mentioned the existing licences and having a different approach to new licences. Could they elaborate on that? I would like to hear the EPA's perspective on it. When new laws came in based on an EU directive to regulate quarries, all of the quarries had to go back and re-apply for substitute consent to make sure they were adhering to the current regulations. It seems fairly reasonable that everybody operates off the same regulations. I am not sure if I fully picked up what the witnesses from SWAN were saying but my interpretation was that they were saying that existing licences will have a very different approach to new licences. I would like to learn what this is the case and possibly rectify that if that is the case.
Deputy Ó Broin asked about the cubic metre threshold. The witnesses from the EPA have come in on that so I would like to hear SWAN's perspective on that. The witnesses from the EPA said that they will be regulating it but from an enforcement perspective, the question remains as to whether the EPA has the resources to administer this from an enforcement perspective if that was given to it. If not, would that be quite a big administrative burden? How much of a head count would the EPA require to take on that level of responsibility?
Mr. John Kenny:
Head 11 seems to provide an entirely different abstraction regime for those abstracting as of the date of the commencement of the Bill versus new entrants into the regulatory system. There is no justification for that approach under the water framework directive. It appears to be an approach significantly influenced by an attempt not to inconvenience existing abstracters.
Whatever the rationale, the obligation is to comply with the directive. One cannot allow existing abstractors to continue their activities perpetually without subjecting those activities to the directive's requirements. Our concern is that the option has been taken, via the Bill, to distinguish between current and future abstractors and treat them differently. As per our respectful submission, the Bill should provide existing abstractors with a 12-month grace period within which they should apply for registration or licensing, whichever the case may be, and be given a fair opportunity to regularise their positions. At the conclusion of that period, existing abstractors and future entrants into the regulatory system would be on the exact same regulatory page, for want of a better term.
It answers my question on licensing. What is the EPA's perspective on the register? Is it working? What about the cubic meter threshold and the enforcement issue? Does the EPA have a different perspective on the existing licensing regime?
Dr. Eimear Cotter:
I will start with the existing licensing regime. There is a distinction between existing and new licences, but I will first highlight how the requirements of existing and new abstractions are set out in this scheme, namely, that those with greater than 25 cu. m will need to register on the water abstraction register and those with greater then 250 cu. m will fall under our cumulative assessment in order to determine whether they cause a significant impact. That will in then determine whether they need a licence. Those at the larger end will come straight to the EPA for a licence.
The assessment that we will do under head 10 will include existing abstractions. If they are found to require EPA licences, we will engage with them and they will come to us for an EIA. We can impose conditions within the licence to ensure that existing abstractions are not causing any environmental impact. Under head 13, there is a facility or scope built into the licensing regime, as we envisage it, to grant the ability to impose conditions in licences to ensure that there are no environmental impacts.
The register already has a statutory footing under the 2018 regulations. They will be repealed and brought into the Bill once enacted. We have 1,583 registrations, covering 95% of the total volume of water abstraction that we expect to have registered, but there are still some outstanding sectors that we need to continue to work with to promote compliance. We have been engaging with the representative bodies and Departments in order to ensure that all of those with a requirement to register are abiding by their obligations.
From our point of view, enforcement will be on the licensing side. Once we have the licensing regime in place and are issuing licences, their enforcement will be done through the EPA's office of environmental enforcement. We will use our standard method of enforcement, that is, a risk-based approach.
Dr. Eimear Cotter:
In terms of licensing and scientific assessment, we have been able to secure resources to enable that analysis and the preparatory work to be put in place. On the enforcement side, however, there is still a gap in the resources adequate to enforce the licensing that will come following the issuing of primary and secondary licences. We are a bit away from that.
I welcome the teams from SWAN and the EPA. We have looked at their presentations and our own documentation. I want to keep my focus on two or three questions and then give my time to the witnesses because I want to hear answers instead of spending my time talking.
I wish to speak with the witnesses about two matters. In terms of registration, we are told that the licensing thresholds are significantly higher in the UK. This is a recurring theme. What are the witnesses' views on this? What is the rationale behind it?
Two issues keep arising, namely, that all abstractions of 10 cu. m should be required to be registered and all abstractions of 20 cu. m should be subject to licensing. There are two conflicting views on this matter, and I would like to hear both sides. It is an area of contention in terms of the water directive and the impact on habitats and the environment. The witnesses and I know it is highly litigated, so they might talk us through it.
The EPA mentioned that approximately 490 abstractions were anticipated to require authorisation. Has it a breakdown of these applications in terms of agriculture, cement, construction or forestry? The committee might be interested in having a look at that information in order to understand what is being discussed.
All legislation is good legislation if it has been approved and teased out, and this discussion is part of that process. The EPA will ultimately be responsible for much of the administration involved. Deputy Higgins raised questions about capacity and resources. What are the financial and personnel resources required to administer the new licensing regime? Enforcement will be critical. If there was not the capacity to see the legislation through, it would be a concern. What is the EPA's view on enforcement?
There are 31 local authorities. How does the EPA work with them? The local authorities have a great deal of local knowledge. After all, they are the planning authorities. We see where there is planning consent for industry and other areas. If the EPA is not already doing so, significant engagement and synergy with the local authorities in their role are needed. They can give the EPA an advantage.
I am particularly interested in how the EPA will enforce the legislation and what resources it has. Since no organisation ever has enough resources, does the EPA need more? Being unable to enforce the legislation would be an issue.
Ms Marie O'Connor:
Regarding thresholds, our starting point is the risk-based approach. There has been much discussion about the thresholds, including the lower thresholds and those that are going through the graded system. Our data, evidence and analysis show that these are reasonable thresholds and will allow us to focus our efforts and resources where the environmental risk is greatest. As laid out in the scheme, this will ensure that where an environmental risk is imposed by a water abstraction, particularly larger volumes, it will come to the EPA for licensing and undergo a detailed EIA while we are assessing and a making decision on the licensing application. The resources question is nearly as matched to the risk-based approach as it is to the environmental risk. One is balancing the burden and the environmental risk, which is approximately 6% of water bodies nationally. This approach allows us to focus our efforts where the risks are greatest.
Many of the 490 abstractions that we estimate will require authorisations will be drinking water supplies and abstractions from industry. As such, they will be larger abstractions.
We have secured some resources to enable us to establish the licensing regime and make further efforts to understand the data and evidence that underpin the abstractions.
From the enforcement side of things, there will be a requirement to dedicate staff to that once the licensing regime is in place to ensure it is effectively resourced, and ensure we can enforce it as we do in all our licensing regimes in the EPA.
I ask my colleague, Ms Gurrie, to discuss local authorities.
Ms Mary Gurrie:
We have had extensive engagement with local authorities on all water-related matters. Under the second cycle plan, there are many structures and committees in place to ensure collaboration between all the different State agencies and implementing bodies to ensure there is good implementation of the water framework directive, and a sharing of knowledge and information at regional level. There are regional management committees and that feeds all the way up through the governance structures. There is certainly much collaboration with local authorities. We also have the Network for Ireland's Environmental Compliance and Enforcement, the NICE network, which is the enforcement network for local authorities, as part of increasing compliance with the threshold, looking at all the ways we can identify defectors, reach out to them and try to get them on the register. Again, we will go back to the local authorities to see if they have more information to assist us in that regard.
In terms of SWAN and its strong argument that abstractions of 10 cu. m should be required to register and that all abstractions in excess of 20 cu. m would be subject to licensing, maybe the SWAN representatives might take us through all of that, please.
Dr. Elaine McGoff:
Yes. The Department indicated in the last session that the threshold levels were set to be consistent with the Local Government (Water Pollution) Act 1977 and also be based on EPA guidance. I wish to highlight that this Bill is being introduced to comply with the water framework directive not 43-year-old legislation. The obligations of the water framework directive are far more stringent and ecologically based and compliance with that must underpin the Bill. There has been much back and forth with thresholds and who thinks what but let us take a cold hard look at the legislation and see what is actually required legally.
Having reviewed all the submissions, we are also concerned that the threshold has been set in response to the lobbying by industry that does not want to interrupt or undo the status quoof its current arrangements. It does not want its current arrangements to be altered in any way. In our opinion, that is not a sufficient reason to fail to comply with the requirements of the water framework directive. The Department relies heavily on EPA risk assessments for setting its thresholds. However, our research, which the committee has a copy of, indicates that the risk assessment is based on incomplete data and it is unclear if it has been modelled for future climate scenarios. As we all know, things are changing quite rapidly. As far as I understand, they only assessed risk with a view to the water framework directive and do not take account of the risk to Natura sites, under the habitats directive, which might be quite different. While something might be deemed to be not at risk of failing the water framework directive, that is very much not the same thing as assessing for the habitats directive, and that is very heavily litigated on, of which the Department must be mindful.
With respect to Dr. Cotter, the whole point of a register is that it is comprehensive. If one does not know what abstractions there are, then I simply do not understand how one can assess the risk. I know there are significant abstractions that will go to the EPA for licensing but that is only those over 250 cu. m, which is huge, but the cumulative impact of several smaller abstractions could be just as devastating. Let us be practical and not be confused by the numbers. First, we must look at our legal obligations. Second, the man on the street knows that 100 smaller abstractions can have a serious impact so that must be taken into consideration.
Senator Boyhan's time is up and it is now my time slot in which to ask questions.
In respect of the water framework directive, Mr. Kenny said that all abstractions should be registered above a de minimisthreshold. Please suggest a de minimisthreshold for Ireland.
We had research carried out that compared a number of other European jurisdictions and their thresholds for registration or licensing but they are not directly comparable. Examples from the Netherlands and Germany have been given. Are those countries in compliance with the water framework directive? Are all of those countries working towards reaching compliance with the water framework directive so are undergoing a similar-type process at the moment? Does Mr. Kenny have knowledge about these matters?
Mr. John Kenny:
I will answer the second part of the Chairman's question first. I cannot profess to know the situation in Germany or the Netherlands. The figure used in the Netherlands seems strikingly high and is very much an outlier compared with the other jurisdictions identified by the Library and Research Service in its very useful paper. I cannot give a view on something that I do not know the answer to.
In terms of what isde minimisfor the purpose of the directive, the directive in Article 11(3) allows for abstractions that have no significant environmental effect to be excluded from the requirement for registration and-or licensing. That, to my mind, presupposes that all abstractions - and I mean all abstractions - are subjected to at least some very basic assessments to identify whether they have a significant environmental effect. The rule of thumb that is used by Northern Ireland and Scotland, in particular, is to have a very light-touch regulatory approach to abstractions that are less than 10 cu. m per day. Those abstractions do not fall out of the regulatory net entirely and are subject to what are known as general binding rules. There is a series of basic rules that all abstractions must comply with. Once one goes over the 10 cu. m threshold one is into mandatory registration and over 20 cu. m one is into the licensing net.
In summary, the water framework directive requires all abstractions to be assessed. If the committee seeks to strike a balance between the strict requirements of the water framework directive and what might be practically achievable then I can say that there is significant merit in the 10 cu. m threshold used in Northern Ireland.
Next is the EPA. As referenced by other members, if one were to move to register 10 cu. m abstractions rather than 25 cu. m or greater, what would be the administrative burden? With the EPA's current resources would it be practical to do so?
The EPA's submission suggests that 95% of abstractions are covered. Does that mean only 5% of current abstractions range between 10 cu. m and 25 cu. m?
Dr. Eimear Cotter:
Obviously if we lowered the threshold then a greater number of abstractions would be included and thus it would require engagement with a much greater number of potential abstractions below 25 cu. m per day.
I will hand over the question about the volumes of water to my colleague, Ms Mary Gurrie. Within the scheme as written there is scope. Once we run our analysis and cumulative assessment, and consider the impacts when all of the information is in and this legislation is enacted, we can then look at whether the thresholds are appropriate. There is a facility to do that.
We can look at whether the thresholds are appropriate. While at the moment we feel they are reasonable in terms of following a risk-based approach, there is scope within the scheme to review the thresholds and make recommendations based on the information we have at that time.
I might hand over to-----
I just wish to clarify that question. The submission states that 1,583 abstractions have been registered and this is estimated to account for approximately 95% of all water abstracted. Does that figure suggest that the other 5% is somewhere below that?
Ms Mary Gurrie:
The hydropower and electro power dominate. We estimate that about 97% of all water abstracted goes into those schemes. We are excluding them for the moment to keep the numbers more realistic. We expect that those more than 25 cu. m will account for about 80% of all the volume of water extracted if the hydropower is excluded. We have the larger ones of those on the register representing about 95%. That is a lot of numbers. The register contains the vast majority of the volume of water that is being abstracted. The risk is really about volume. As we go down, the risk becomes lower in terms of the assessment. At lower levels of abstractions, it tends to be local. For example, a house with a well and a septic tank is almost a closed loop in terms of the risk assessment. The lower the threshold, the more that gets brought into the system. I hope that answers that.
I have two questions for the EPA and I will ask the representatives of SWAN for a comment if I have time. SWAN believes that the risk-based assessment is done only on the water framework directive and that appears to be the case based on comments from the EPA. Is the risk-based assessment done on the water framework directive or does it look at wider issues and impacts on habitats and biodiversity?
Ms Mary Gurrie:
The water framework directive requires that we meet water quality objectives for protected areas and that includes things like drinking water resources and habitats and the Natura sites. For example, a Natura site might need high quality water; that is the objective of that water body. The risk assessment takes that into account and recognises that the risk to those would be higher. On the national assessment the habitats are included under the WFD water quality and quantity element. Obviously, each individual licence would assess the impact on habitats under the normal process for licence applications.
I thank Ms Gurrie for that reply. In my ten years as a councillor, I served on the management committee of the Howth special area amenity order. Within that is a special area of conservation. We did extensive work in that ten years on a range of issues. The changes in groundwater and drainage as well abstractions had major impacts on the habitats and the biodiversity in the area. Virtually every issue we looked at came back to what had happened with groundwater. In non-environmental terms, the changes in groundwater in the area had some severe impacts on flooding because the historical soakage was no longer in place resulting in some severe flooding effects. I have a direct knowledge at a community level as to how relatively small changes in groundwater caused by improvements in drainage and-or abstractions can have a significant range of impacts. That is in an area where much of this was studied and where it is actively managed. I am conscious that most of Ireland would not have that detailed and intense management and ongoing study of areas. I am concerned about that.
The EPA has confirmed that resources would be focused on the areas of greatest risk. There is a rationale and logic to that. I would not want to see many resources dedicated to the areas of lowest risk. The EPA emphasises the areas of greatest risk, but what will the approach to areas of medium risk be?
Dr. Eimear Cotter:
In the scheme as it is set out, those medium-level abstractions would be part of our risk assessment. We would first determine if they cause a significant impact. If so, they will need a licence from the EPA. All other abstractions are required to be registered and will be subject to the general binding rules.
Ms Sinead O'Brien:
I really appreciate the question about the water framework directive and how it links with habitats. The water framework directive requires us to take an integrated approach to water management, including looking at protected areas. This is where we would contest what the EPA maintains. While there is only 6% at national level, we need to look at each individual water body. Some of those sites are extremely sensitive. If we do not know whether they are being abstracted from, we do not know whether there is a significant impact. The Deputy's point is well made and well taken. The impacts on groundwater can also have impacts on wetlands and very sensitive habitats. I hand over to our expert Dr. Craven to make some points on that.
Dr. Kieran Craven:
Further to what Ms O'Brien said, we do not contend that abstraction is an issue at a national level. It really is at the local level. The EPA believes that 20% of water abstractions are less than 25 cu. m per day, which means they are unknown. Abstraction can have a very large impact at a local scale depending on the interaction of the available water, whether it is groundwater in connectivity with surface water, whether there are adjacent wetlands and whether there are domestic wells there. The local impact of that abstraction can be profound.
I believe the EPA's 6% figure is based on a database that has been in existence with various iterations since about 2005. It has tried to accumulate data on the main abstractions. Between 2005 and 2017 a number of points were raised about the omissions from that database. About 10% of water schemes were omitted. Ones from industry and agriculture and unregulated ones are omitted. The total amount of abstractions and specifically the locations of the abstractions are still relatively unknown. Using an incomplete database will lead to an underestimate of the impacts. We contend that on a local scale much is unknown about the impacts of abstractions.
When we take into account the expected effects of climate change, which based on reports by the EPA predict up to a 20% reduction in summer rainfall, increases in dry periods during the summer when we might expect certain industries such as agriculture would then have a higher demand for water and changes to precipitation levels as well, it all exacerbates the requirements for water, increasing the stresses on water, particularly on a local to regional scale. We feel the proposed legislation should protect and be able to respond to these things. Having thresholds of 10 cu. m for registration and 20 cu. m for licensing will increase that understanding of abstractions. Particularly at the local scale, we will be able to respond to that to preserve the vulnerable and at-risk water bodies.
I will make one point and then the EPA can quickly come in on this. On the risk assessment and how it is being looked at for water abstraction, I refer to the other changes with water courses around drainage and what is going to be happening around climate change. Has all of that been included in the risk assessment and analysis that has been done on this?
Ms Mary Gurrie:
Yes it is. On the 6%, as I said we will be running that assessment again to get the most up-to-date position. It is a national assessment but then one does identify the water body that is at risk of being impacted or maybe at risk of not meeting its objectives and one looks at what is going on then that is impacting on it. To clarify, one looks at the national picture and when it comes to the licensing and the detailed assessment it goes local.
Is there not a concern that there is often not enough information at a local level on these different aspects, including changes to the drainage of water courses and water bodies, to inform this properly?
Ms Mary Gurrie:
That is a whole area of work that is being looked at the moment. That is called hydromorphology and includes the whole physical changes to rivers. There is a national hydromorphology work programme under the second cycle plan. The EPA is again working with all the various stakeholders on that and looking at the evidence and then the programme of measures, that is, on what measures are needed to address that. All those different pressures are assessed as part of the risk assessment and then when one gets down to programmes of measures, one starts looking at either national measures or local measures for actions. In some of the prioritised areas, for example, we are looking at what needs to happen in this water body area, whether it is agriculture or others or hydromorphology or physical changes and looking at what needs to happen in that regard.
I thank the witnesses for the presentations this morning. I apologise if my questions are going to sound a little bit stupid, I am very new to this topic, and I would like the representatives of the various organisations to talk me through some baby information, if that is okay.
I have a couple of questions for the EPA representatives. Is it proposed that the agency would keep a record of who is abstracting water from a particular water source to gain a cumulative effect, even including smaller operators? Do the representatives think it would be helpful if the cubic metre threshold was lowered so they could get an idea of who was drawing on a particular water source?
On revoking licences, there is a definition of "significant risk" in there. How would the witnesses define significant risk and what process do they go through for that? Is there a mechanism for public participation or complaints about the giving of licences but also the revoking of licences if people are constantly breaking it? On head 8, the risk is significant abstraction and damage. If the organisations are looking at that, are they looking at one particular person abstracting water or, as in my first question, is there a proposal that they keep a record of smaller abstractions and the cumulative effect of abstractions from one particular water source?
Dr. Eimear Cotter:
On the threshold question, at the moment the 2018 regulations stipulate that those who abstract above 25 cu m. per day must register on the register maintained by the EPA. That would be carried over into this Bill if it is enacted. Thus, amounts above 25 cu m. per day are what we have a record of.
Dr. Eimear Cotter:
I am building up to that. We have each individual registration on the register and then under the scheme of this Bill, we will look at each particular water body in terms of the risk assessment of what the pressures on it are including the pressure of cumulative abstractions of water. Having gathered the information in the register, step two is that a risk assessment will then be conducted under, I think, head 10 to look at what the pressures are, to see where they are arising in different water bodies which then require a licence.
On significant risk, maybe Ms Gurrie could step in on that. I will go through the public participation and then we can come back to it. Significant risk is defined as an abstraction that would impact on the environmental objectives of the water body or the status of a European site. It is very clearly laid out for those that abstract above 25 cu m. per day.
On public participation and the licensing regime, there are numerous provisions laid out for that public participation. Those who come in for an application are required to notify the public. There is a facility for the public to come in and make submissions during the licensing process and an objection period is also envisaged. Thus, for all our licensing regimes, public participation is a very strong pillar, indeed is a requirement on our licensing. That public participation piece, right through the licensing process, is something that we will maintain in this abstraction licensing regime as we do in all of our licensing regimes.
A lot of my earlier questions were answered in the subsequent round. I have two questions for SWAN and then I will follow up with the EPA on a few of them.
The European Commission published an opinion of non-compliant with the water framework last week. Maybe somebody from SWAN can talk us through their view of what that means and its significance to the discussion we are having here. To pick up Dr. Cotter's point around public participation, it could be that I am misreading the heads but my understanding is that there is no provision for public participation in the granting of a licence for an existing extractor. There is no provision for third party opinions and I would like the views of both SWAN and the EPA on that.
I have a more specific question for the EPA. Turning to this business of not being able to refuse an existing extractor, I know Dr. Cotter rightly said that conditions can be applied but what is the logic of simply having no provision to refuse an abstraction? It could be the case, for example, that there has been a change in the environmental circumstances and on going through the licensing process, the agency realises that there are things happening that were not happening before of which it was not aware. Surely there should be a provision to refuse existing abstractors if the nature of that abstraction is causing environmental difficulties for the water source and putting us in breach of the water framework directive.
Returning to the thresholds, I know we are spending a lot of time on this and they are not the only thing but they are kind of the central linchpin of this. A couple of times Dr. Cotter talked of a trade-off between getting to the greatest level of risk and a balance between the administrative and cost burdens. That is a dangerous way to look at this. I would have thought that the EPA would start in the first instance with considering what it would like to capture in an ideal world and then moving to considering what it can capture first, within the existing resources. It may be an unfair question which the agency cannot answer but if it were not constrained by the existing resources, or if it had a Minister who was saying: "Tell me what you need", would the agency still be recommending 25, 250 and 2,000 cu m.? If the agency had those greater resources would it not be looking at a different threshold?
On enforcement, I thank Dr. Cotter for her frankness. It is a very significant piece of information for us because when we raised these issues with the Department, its representatives were essentially saying that there is not an enforcement mechanism, that the heads do not make provision for this. Would it the EPA's view that it is the appropriate body to enforce and if so what would be the resourcing requirement on top of that?
I then have two quick questions. Will the register be public?
Does it make sense to grant an indefinite licence? Are there any other types of licences that the EPA currently grants that are indefinite?
Mr. John Kenny:
I will answer Deputy Ó Broin's second question first. I apologise to the committee but I will have to leave after this. My colleagues will take a note on any questions and I can revert to the committee as necessary.
On public participation, this Bill proposes a completely unique model of licensing, whereby the EPA analyses the bodies, then identifies the significant abstractors, then approaches the abstractors themselves, and then brings those abstractors through the licensing process. My reading of the Bill is that in none of those steps is there any provision for public participation, because the model adopted - as far as I am aware and I practice in this area extensively - has no other comparable licensing model that is an analogy for that proposed in the Bill. The uniform approach in all other licensing regimes is that if a person's activity needs a licence or a permission, he or she approaches the consent authority, that is advertised to the public, the public is given an opportunity to make a submission on that, and then the consent authority makes a decision on it. That is the model used across the board in Ireland. I do not see any warrant in the water framework directive for this kind of roving jurisdiction which is being given by the EPA, effectively as a water policeman, to have a look at water bodies, have a look at abstractors, and if they think a particular activity is significant, to effectively bring the individual within the regulatory net. In my very respectful submission, that is simply a recipe to allow significant water abstractors to continue their activities, untrammelled by the requirements of licensing or registration. I would urge the committee to adopt the uniform approach, which is adopted by regulation in Ireland, whereby if I want a licence I must apply for it and in the course of that determination there is an opportunity for public participation. In my very respectful view, there is no warrant for a departure from that well worn and well understood model, which is used in the EIA directive, the habitats directive and the industrial emissions directive. The model is used in every regulatory licensing regime in the State with the exception, for some reason, of what is proposed in the Bill.
Ms Sinead O'Brien:
I will take the first question on the water framework directive and the letter from the Commission during the week. Normally I would be sorry that my legal colleague is leaving now and not in a position to address the legal question, but actually it is a very straightforward one. The water framework directive came into force in 2000, and 20 years later we are not fulfilling the very basic requirement in the directive that says we need controls on abstractions. The Commission wrote to the Government to say it has two months to sort that situation out. The water framework directive says that Ireland needs controls over abstractions. It is a very elegant directive in many ways. It states that we need to control all abstractions unless it can be demonstrated that they are not significant. This comes back to the point we have been making, that to deem whether or not an abstraction is significant, one needs to know where it is and the impact it has on particular water bodies. If only abstractions of more than 25 cu. m are registered it means that significant abstractions are going to take place, we will not know where they are happening, and we will not know if they have a significant impact. The amount of 25 cu. m is a lot of water, and I believe it is the equivalent of 42 households. It is on that basis we would say the Bill is not going to bring Ireland into compliance with the directive that says we need controls on all extractions unless they are significant. It means that Ireland will be back in trouble with the Commission again.
Dr. Eimear Cotter:
Under public consultation we have agreement, and on the existing licensing for abstraction, head 11, subhead (3) says that an application for a licence should be advertised publicly by the person making the application. Our treating of it is that the public participation elements, which are so crucial to the licensing process, are set out in the scheme of the Bill, and further detailed steps will be set out under the regulations to come under head 13.
On the requirement to advertise, is it the EPA's understanding that this will allow third parties to make submissions to the EPA, which it will then have to take into account in making its decision for existing abstractors?
Dr. Eimear Cotter:
I think there is enough provision in the head. I believe that the really important piece will be in the regulations that will come after this for the licensing regime. There is enough within the head that we are comfortable that the public participation elements are covered.
On the point about the trade-off, I do not think I used the word trade-off because-----
Dr. Eimear Cotter:
Let me state it again then, that our starting point overall is that 6% of water bodies are at environmental risk due to abstractions. That allows us to focus our efforts where that environmental risk is going to be greatest. That is our starting point, to ensure we know where there is an environmental risk, and so we can focus our efforts on controlling and understanding them through our risk assessment and, following on from that, through the licensing regime. That risk-based approach is proportionate given the risk we know exists there overall for water abstractions in the State.
On the question of resources not being an issue, on a number of occasions the EPA talked of the balance between that risk and the burden of administration and costs. If that burden of administration and costs was not what it currently is, would the EPA still be making the recommendations? When we ask the Department to tell us why it was going for 25 cu. m, 250 cu. m and 2,000 cu. m, in addition to referring back to the 1977 Act, it placed much emphasis on the recommendations from the EPA, which is absolutely appropriate. If the EPA did not have the current administrative and costs burdens, would it still be making the same recommendations on the thresholds?
Dr. Eimear Cotter:
Absolutely. With the data and evidence, as we have it at the moment, the analysis indicates that we are looking at a risk of approximately 6% overall for the State. We will refine, update and renew that information as it becomes available to us. Looking at it through that risk-based approach it allows us to dedicate our efforts to where the environmental risk is, which is our starting point for all considerations right through the board.
I would like to return to the 6% figure, where the EPA said that 6% of water courses are under pressure from water abstractions. If water is abstracted from a water body the volume of water is potentially reduced or at times of low flow 25 cu. m or more may have a greater impact than at times of higher flow. All water that gets abstracted from whatever source, ends up somewhere else, which is the discharge elements of abstractions. Whether that is the abstraction of water for cooling processes in industry that then gets discharged to a water course, which can increase water temperatures and the effects this can have, or whether it is abstractions for livestock that can end up in groundwater and as nitrates into river water, does that 6% just look at the actual act of abstraction, or does that 6% look at the entire hydrocycle of abstraction and discharge to whatever source it may be?
Ms Mary Gurrie:
The modelling exercise looks at whole discharge, the abstractions and the discharges, and then we use standards. It is the ecological flow, that is what the lowest flow that will sustain the ecosystem to a satisfactory level is. That is the threshold.
What we use at the moment are the UK and Northern Ireland standards. They are well established and we feel they are appropriate in the Irish context. We look at the whole balance of discharge. With some of the smaller abstractions, because they are more local the abstraction and the discharge happens within a more localised area. It is all taken into consideration, however, as is the cumulative aspect so it looks at the water body, all the abstractions and all the discharges into it to asses their risk.
I thank Ms Gurrie. On the registration process can she tell us what exactly is involved in the process for an abstractor? How complex and onerous is it to register? As I understand it the heads abstraction is not metered but only done on estimate. A person may be abstracting 27 cu. m but that may be estimated as only 24 cu. m. What is involved in the registration process, both from the abstractor and from the EPA?
Ms Mary Gurrie:
The statutory level is at 25 cu. m. What we have is guidance so some people may have flow meters and know exactly how much they are abstracting and certainly the larger abstractions will. What we put in place was guidance for all the other different types of activity so they could estimate their abstraction rate. For agriculture it depends on the number of cattle and for golf courses the area are to be watered. All that is set out. On the registration process, it is up to the individual to assess what their rate of abstraction is and to register accordingly. It is quite a simple registration process. A person logs onto the system and then enters the details of the location, the volume being abstracted, what it is being used for and contact details. That is pretty much it as far as the registration is concerned.
Okay. On the abstractions themselves, how difficult would it be for all of them to be metered and recorded? How onerous would that be for an abstractor, if the witnesses can answer that? I know there are many different forms of extractor-----
-----and if it is a business or industry or if it is a temporary one it may be more difficult. That being said, how difficult is it to fit a meter so the EPA could at some point, randomly or selectively, look at the abstraction rates?
Ms Mary Gurrie:
My understanding is that it depends on the nature of the abstraction. They vary from a groundwater well which is relatively small and where one might be relying on the pump capacity to do the estimate to abstractions that are maybe a pipe from a river. Then there are the large-scale abstractions from drinking water sources where they probably have flow meters already so they know how much water they are taking in. The question of adding it to every abstraction is probably quite onerous and may, from an engineering point of view, not always be as simple as that. The question of whether it is needed comes back to the risk. We are happy enough that the assessment method is good enough; it is reliable and accurate. In terms of assessing the risk for the typical usage for cattle or for a golf course it is a reasonable method to take.
My question for SWAN is on the measuring of abstractions, would it be aware where the 10 m. threshold is in Northern Ireland or Scotland or Wales? Do they meter abstractions to measure it or is that done by abstractions as well? Does anybody have that information?
Ms Sinead O'Brien:
Under that letter we are also not fulfilling regulations for controls of hydromorphology. I like to imagine it as anything that involves going near a water body with a digger. At the moment there is very little regulation on dredging, channelising or draining wetlands. Again, this does lead back to abstraction because it will help us to become resilient with climate change. If we are draining wetlands and abstracting water and we do not know where it is being abstracted, and if that is happening, for example, in a special area of conservation, then suddenly we have no climate resilience and are non-compliant with the water framework directive and the habitats directive. This Bill should therefore be helping us to build a picture of the cumulative impacts of many pressures on a water body and also helping us to build resilience; it is doing neither of those things.
I thank Ms O'Brien. Just to summarise, what I am saying is that this Bill is aimed at registering, monitoring and licensing of water abstractions. The data we have has up to this point been held by local authorities and was a bit vague or incomplete. We are now on threshold limits and I think we are all agreed that we should be licensing, monitoring and measuring the impacts of all these. We are at the point now of threshold limits and where they should apply.
I understand the 25 cu. m. basically takes out most of the farms ranging from small to medium size. If we consider water extraction where it is being used for irrigation or cooling, my issue is when we have a very hot summer and where certain people's crops are under threat, they go to the rivers to extract water to try to keep their crops going. I have seen in one or two years where they have brought our waterways way down by extracting water such that it interfered with fishing and everything within our waterways. There are so many points where a person could abstract water that it could not be policed.
Turning to flooding from heavy rainfall, in County Limerick we have recently seen that water was being trapped because of lack of maintenance on rivers which have not been dredged or cleaned out. The proper flow of the rivers could not be monitored because the flow range was blocked due to lack of maintenance for up to 15 years. Again, we cannot check out the proper water flow because water was being lodged on land. Then, when the water level lowers, it gets released but in the meantime people who are not actually on floodplains are getting flooded because waterways are blocked. In order to get the proper reading for waterways, they need to be cleaned out once and then maintained. How can we monitor this however if that proper maintenance has not been done in 15 to 20 years?
Dr. Eimear Cotter:
I am not sure. Perhaps Ms Gurrie wants to think about it or can come back in. It is not completely within our area.
On climate change and drought conditions, there are provisions in the scheme for temporary abstractions. As I read it, regulations will be made to set out what a temporary abstraction is, how we would define it and that will need to be notified to the EPA. That is one way where the situations the Deputy describes may come about and that temporary abstraction would need to be notified to us. What we would be looking for when the discussion of the regulations comes around is how does one define a temporary abstraction, what is an emergency situation, how are different sectors going to be treated, how would different parts of the country and different parts of the year be factored into the decision making? We need as much clarity as we can have within those regulations. I do not think it is the scheme but the regulations which will allow us to do our work. On the larger abstractors in the context of climate change and drought conditions, having done our assessment and looked at the risks according to the different parts of the country and so on, we would be able to develop bespoke conditions for each individual licence that will place restrictions on the licensee, if required, if we do see that impact. That will give us some control as well and factor in the decision-making around different parts of the year and different pressures on water as they come through.
As I said, some of our waterways and rivers have not been maintained for many years.
If some areas are at high risk of drought, a certain area could be licensed to allow abstraction to take place because it has a higher volume of water, rather than it being taken from farther up the river where it would prevent the water from making it down to the next place. It could be investigated to determine the best place for abstraction in such circumstances, which would be beneficial. If there was an issue, the best point for abstraction, to care for the greatest number of people who need it, could be specified.
Due to flash floods and other recent factors, many areas have become wider. The river bed has increased from 15 m to 25 m wide and it is taking in land. The water levels have dropped because the river has become wider. This, again, has a knock-on effect for people farther downstream. Will the Bill take into account all these types of waterways in regard to abstraction points, such that everything feeds into a main abstraction point that has been designated as the best place to abstract water?
Ms Mary Gurrie:
I will answer that as best I can, although it is very technical. Abstraction takes account of the flow and the change of flow. The question about hot weather and where to abstract relates to temporary abstractions. On the wider issue of maintenance of rivers, there are different views. Dredging can have significant negative impacts on rivers. In general, the more natural they are, the better, but that is not the reality of systems. Hydromorphology concerns the natural flow, processes and ecosystems, and it is an area under attention at the requirement of the water framework directive. Much work is being done. The EPA is examining the evidence base of what needs to happen, and while I do not want to speak for the Department, work is under way to examine the different control systems in place for different types of works on rivers that change the natural processes of rivers-----
Many people have made the point that because of the pinch points and the water levels changing, and given that much water is held in different areas, it has widened embankments. What is causing many of the flash floods at the moment is that while the river bed may be 15 m wide, when the water comes there may be a section downstream that is only 6 m wide because it has not had the flow from above. That is causing flooding in areas that are not flood plains. To get a proper reading of abstractions and points, we have to ensure that where the main stream has these problems and if there is a flash flood, it can get to where it needs to go, without being held by a stopper being put in the way until it reaches a certain volume. In such cases, the water just flows out and comes in in a different direction, which is turning our roadways into rivers.
I thank our guests for appearing before the committee. The difficulty with asking questions in the later round is that the other members will have asked the good questions. The issue of enforcement was mentioned. I always think we should try to push responsibilities and resources to local authority level because there is a great deal of knowledge there. Could the local authorities play a role in the enforcement of this, whether in partnership or otherwise?
I too welcome our two guests, in particular the Carlow woman. Like Deputy McAuliffe, most of the questions I had intended to ask have been asked. I may have missed them because I was attending a Zoom meeting. Will somebody explain the 25 cu. m and the related licensing?
Following on from Deputy McAuliffe's point, enforcement through the local authority is so important, not least in regard to whatever licences have to be applied for. As an example of something that has not worked in the past two years, our guests will recall that the Oireachtas introduced a law whereby septic tanks had to be registered at a cost of €50 to the local authority. People who did not register can get no grants. I am working with local authorities and at least six people have come to my clinics in the past six months who did not register the €50 with their local authority, and now they cannot get anything. We need to ensure that information is given and that people understand whether they need to get a licence, to register or whatever. That has been the biggest issue facing me in respect of septic tanks in my area and we need to change it, although I acknowledge that is not a matter for the Bill. I am afraid we will find ourselves in a position where the correct information is not sent out. People may not realise this has to happen and perhaps they will not do what they have to. Then something might happen and they will be told that nothing can be done for them. Going forward, information is critical, as is explaining it, such as in the case of the example I outlined.
Dr. Eimear Cotter:
Information is really important so that people understand their legal obligations, which have been in place on the registration since 2018. We have worked closely with different representative organisations, relevant Departments and other statutory agencies and organisations such as Bord Bia to ensure we can give that information, through those organisations, to the relevant people so they will understand their obligations. There is a role for us to engage with local authorities in that regard to ensure they can help people to understand their obligations.
There are two parts to the enforcement issue, one of which is the general binding rules. We earlier gave some clarity as to who will enforce the general binding rules. They apply to everybody who abstracts water, irrespective of the volume. There is also the enforcement of the EPA's licensing regime for medium and larger abstractions. We will enforce that licensing regime, as we do with all our licensing functions in the EPA, through our office of environmental enforcement.
My next question may have been asked earlier. There is a fee to register a septic tank. When someone registers, has to get a licence or whatever, what happens? What is the protocol? Does paperwork need to be done or is information sent out? Who follows up? Will different groups work together?
Dr. Eimear Cotter:
Once registration happens, the next step is to get that information together and determine which of those registrations cause a significant abstraction and are above the threshold for the larger licensing regime. We examine the registrations and take in that information to give us a better understanding of where the pressures are from an abstraction point of view. That allows us to see which of those abstractions require licence in the medium range and at the higher end of those volumes.
Ms Sinead O'Brien:
The 25 cu. m threshold has been well aired at this stage, but for the benefit of members, it is worth picturing what that is. It is the equivalent of about 42 houses, or a farm of about 200 cows or 500 sows. It is proposed in the Bill that if there are 199 cows or 499 sows, or the equivalent abstraction of 40 households, there will be no need to register and the significance of the abstraction will not need to be assessed. We argue that is not compliant with the water framework directive.
Should the Bill give the power to refuse licences for existing abstractors under certain circumstances?
With respect to enforcement, have recommendations been made to the Department concerning what that regime should be? In terms of indefinite licences, is there any other EPA licence type that is indefinite? Given that Ms Gurrie said that the registration process is very simple, why would we not just register everybody? There is a limited requirement. Picking up on the last point made by Ms O'Brien, how is it proposed to deal with the cumulative impact, for example, of several dairy farms that have less than 25 cu. m but are in the same catchment? There are multiples. How will that be dealt with in terms of assessing their impact?
My first question is for the representatives from SWAN. How do the regulations in Northern Ireland compare with the provisions in this proposed Bill? Do the witnesses consider the regulations in Northern Ireland and Scotland to be best practice or better practice than what we are proposing?
For the witnesses from the EPA, when looking at the aspect of 10 cu. m against 25 cu. m, was consideration given to trying to align the regulations on an all-island basis? On revoking licences, there have been several issues in my constituency of Cork North Central with waste collection. I know it is a different issue, but it comes down to licensing. Once people have licences, they have them for some time. The EPA has taken court cases against people. To revoke a licence afterwards, however, seems virtually impossible. Are we going to be in the same position here?
Ms Marie O'Connor:
Regarding enduring licences, the ability is there within the scheme of the Bill in the heads to allow us to impose conditions relating to a review. We review the conditions of licences under the head where the regulations are made. We can, therefore, review the conditions of the licence and, as part of that, we can impose stricter conditions. We have the ability, therefore, to review those licences and make them stricter if required to protect the environment.
On revoking licences, a facility for doing this, as far as I understand it, will be allowed within the regulations for new abstractions. For existing situations, it is the case that we would be looking at it in terms of reviewing the conditions and putting significantly more mitigating conditions in place if we required those. In terms of revoking licences, we work hard with the people who have those licences to improve the operation of the licences. Revoking a licence would be a last step, and we would be very keen on ensuring the conditions of the licence and working with the individual licensees, which would be a better option. However, there is that power there to revoke them if we need it. I hope that answers the question.
I apologise for cutting across Ms O'Connor. My question is, does the EPA think that there should be provisions in the Bill to provide for a refusal? I know what the heads say, but it seems odd that there is no provision. If the EPA's view is, having done an assessment, that there is a problem, surely it would like to have that power to be able to refuse, I presume in very limited circumstances.
Dr. Eimear Cotter:
We are in a difficult situation in that we are looking to license something that is happening already. We have to make sure that, in licensing existing or new abstractions, they do not cause environmental impact. Factoring that into the overall risk assessment, providing that the conditionality within the licence is as is envisaged at the moment, and based on all of the environmental impact assessment that we will do, which will be elaborated under head 13, this will ensure that we will be satisfied before granting a licence that there is no environmental impact or it can be managed.
I am not being adversarial, but there could be a situation where the EPA's environmental assessment finds that an abstraction should not continue but it will not be empowered to do that. It will only be able to apply conditions. Surely that seems an odd scenario.
Dr. Eimear Cotter:
It is a function of where we are. These abstractions are happening, and the conditionality in each licence means each licence is bespoke and each licence will be according to the abstraction, the conditions around that abstraction, and the environment. Following our assessment, working the conditions into the licence to ensure that there is no environmental impact is how we will approach it.
Dr. Elaine McGoff:
I can take that. I thank the Deputy for the question. Ultimately, the thresholds are the real nub of this. We have talked about them ad nauseamat this stage. In Northern Ireland, abstractions in excess of 10 cu. m are registered and are licensed where they are in excess of 20 cu. m. They have a responsive licensing system, so that if things are going a bit awry, they can adjust or pause a licence. They also have no clause which allows existing abstractors to continue doing what they are doing. This is really important. My EPA colleague just there said that this is a function of where we are. That does not stand up to legal rigour. We have seen numerous cases go through the courts where there were the quarries, for instance, which were already doing what they were doing. That does not give them licence to continue what they are doing. Legally, that is just simply not good enough.
Let me just really spell this out for everybody. Under 250 cu. m, there are no controls on the licences for abstractors. There is no licensing under 250 cu. m, regardless of the impact. Under the habitats directive, the EPA needs to be able to conclude beyond reasonable doubt that abstractors will have no impact on tourist sites. I would ask the people from the EPA this question. Are they happy that they can stand over the risk assessment and say that they are confident that, under 250 cu. m, there will be no impact on the tourist sites? To go back to the original question, that is why we favour the Northern Irish regulations, because they cover this off. They provide much more environmental protection and much more stringent legal compliance. They really are the way we should be going. This Bill is just a disaster, legally, to be honest.
I have about a minute left for myself. There are many more questions we want to ask and there will be further work for the committee on this. We did not get the opportunity, I do not think, to go too far into the environmental impact assessment of existing abstractions which would require licensing. That is an area we need to look into further.
On the registration process, we seem to have established that it is quite a fairly simple process to register. It is not hugely onerous, and there seems to be nothing to fear by registering. I am only making this as a suggestion, but if we were to reduce the threshold to register so that it was only 10 cu. m for abstraction, it would provide a greater body of knowledge on what is a finite resource if at some point resources were to be provided to examine the cumulative impact of all of that and to carry out impact assessments.
At least, we would gather a good baseline of where abstractions are. That is what I take from today's discussion. Every abstraction, no matter how small, has some type of impact on that watercourse. The task is to determine what is significant and the cumulative impact of a large number of small abstractions.
I thank the witnesses from SWAN and the EPA for their attendance. This meeting has provided us with a lot more information and added to our knowledge in respect of our task in scrutinising this legislation. I thank the witnesses and members for their time and co-operation.
The committee will adjourn until 10.20 a.m. on Tuesday, 10 November 2020 when we will meet in private session via Teams, followed by a public session at 11 a.m. in committee room 2.