Cian O'Callaghan (Dublin Bay North, Social Democrats) | Oireachtas source

The way the Government is handling this legislation confuses me as it is unclear to me what it has absolute contempt for. Is it absolute contempt for the legislative process, democracy and the idea of pre-legislative scrutiny by the Oireachtas committee and scrutiny by the Dáil? Is it absolute contempt for the environment, water and biodiversity? Is it absolute contempt for compliance with EU directives on the environment? In which of those three aspects does the Government have no interest whatsoever, or is it all of them? It is absolutely incredible.

In 1996, the European Commission pointed to the need to establish procedures for the regulation of the abstraction of fresh water. The water framework directive was adopted on 23 October 2000. Since 2007, the Commission has been engaging with Ireland on what it considers to be Ireland's incorrect transposition of the water framework directive. It has taken more than two decades for the State to come up with this legislation, and 45 minutes is the amount of time to be given to consider it on Committee Stage. How on earth can anyone in the Government say that this is a serious way to treat the issues of water abstraction, the environment and biodiversity? The Minister of State, Deputy Fleming, cannot tell me that after two decades all the Government could give this legislation was 45 minutes.

As Deputy Ó Broin said, a very good pre-legislative scrutiny report was done on this legislation. A lot of work went into that report two years ago. Of the 13 key recommendations in the report, the Oireachtas briefing indicates that only two have been implemented. The advice given to the committee by the Office of Parliamentary Legal Advisers two years ago was very strong and clear that the general scheme of the Bill did not meet the needs of the water framework directive.

This issue is very important. It has a huge impact on our local communities, the local environment and biodiversity. The impacts of water abstraction in the context of the water table and climate will only intensify over the years to come. Research by Maynooth University indicates that by the 2050s, there will be summer reductions of between 20% and 28% in precipitation on our southern and eastern coasts. This will increase to between 30% and 40% by 2080. What happens with water then? How abstraction is regulated and licensed is incredibly important.

Lower groundwater levels can have serious consequences and can pose a particular risk to wetlands and biodiversity. In my local community, it was a pleasure to see the recent restoration of a wetland. Very good work was done by volunteers and Fingal County Council, through the Howth special area amenity order, about ten years ago. An area known as the Bog of the Frogs, which was without a bog and did not have any frogs for years, now has the wetland restored. That is a very important local habitat but this is important throughout the country. That project was in a very localised area but it is important that we value these habitats throughout the country.

During pre-legislative scrutiny of the Bill, many concerns were raised that the approach was seriously flawed. The OPLA flagged key concerns, including around the proposals to set thresholds for water abstraction far above the levels set in other countries. The OPLA identified six major areas of concern in the draft legislation of non-compliance with EU directives. On the licensing and the thresholds being set, I am concerned by the comments given by the Minister for State that one of the reasons is the administrative burden a lower threshold in licensing would place on the Environmental Protection Agency. Others have rightly made the point that we should have best practice and should do the same as in the North and countries around us with similar water conditions. We should not have thresholds set at a level simply to suit the EPA and its current capabilities. The agency needs to be resourced properly to do the job to ensure we have the best possible protection, in line with best practice in neighbouring countries.

During the pre-legislative scrutiny, the Sustainable Water Network outlined its very serious concerns about the breaches of the habitats and environmental impact assessment directives, as well as the water framework directive. Given these serious concerns flagged during the pre-legislative scrutiny, including by the Office of Parliamentary Legal Advisers, it is not unreasonable to expect that the unanimous recommendations made by the all-party committee would be implemented. It is gravely concerning that most of them are not being implemented. It is also gravely concerning that the threshold of registration is to be set at the level proposed. It should be lowered, as the pre-legislative scrutiny report recommended, to 10 cu. m in line with Northern Ireland, Wales and Scotland. The licensing threshold should be reduced from 2,000 cu. m to levels similar to those in place in Northern Ireland, England and Wales, as the report recommended.

Having Ireland as an outlier, in the context of our neighbouring countries, is very concerning. The majority of abstractions would not be subject to controls because the threshold for licences is set far too high. To put the threshold on the licensing into context, 2,000 cu. m would be enough water to supply a town the size of Nenagh or other mid-sized towns. Towns and urban populations smaller than that will not fall into this licensing requirement and threshold. If we consider this in terms of daily water intakes and abstractions, these are very considerable water extractions that will not fall into the licensing arrangements. That is not acceptable. I have not heard from the Minister of State the basis for this or the rationale behind this. He told us there was a scientific basis for that threshold. I ask that it be shared with us as a matter of urgency in advance of Committee Stage of the Bill on Wednesday. We need to see the data for that in good time to enable us to get people with expertise to examine them.

With regard to the EU water framework directive, Article 11.3(e) clearly states that member states can only exempt from these controls, abstractions or impoundments which have no significant impact on water status. In setting the threshold that high, it is very hard to understand how anybody would think abstractions at a level that would supply smaller towns and towns the size of Nenagh would not have a serious impact on water status. It is hard to see how the Government believes this is not a clear breach of the EU water framework directive.

Why does the Government believe we can set levels that are very different from the levels set in surrounding countries? What is the basis for that? It was pointed out during pre-legislative scrutiny that the EPA risk assessments are based on incomplete data. The analysis of the data published by the EPA showed that the EPA's database was wholly incomplete. Yet again, we are seeing a minimalist approach being taken to try to avoid EU sanctions.

Instead of trying to do our best to protect our environment and biodiversity, and instead of trying to implement the directives in the spirit in which they are intended, this is yet another attempt, becoming all too familiar, to do the absolute minimum in the hope that that will avoid sanctions and might just get us through in respect of compliance with the directives, rather than realising that the directives are there for a good reason and for our benefit. They are not simply something in respect of which we try to do the minimum in order to avoid sanctions. It is in our interest to manage our water and the status and supply of it in the context of our biodiversity and our well-being. That is critical.

I wish to go through some specific issues that are outstanding from the pre-legislative scrutiny and that the Government has not addressed since then.

The way in which the thresholds have been set is clearly contrary to the EU environmental impact assessment directive because it is arbitrary, based as it is purely on size. It is not consistent with Article 11.3 of the water framework directive, which presupposes an assessment of all abstractions. The legal issues with not assessing anything under 25 cu. m remain outstanding in this iteration of the Bill.

The indefinite licences allowed for in the Bill are not consistent with the requirements of the water framework directive. Article 11.3(e) of that directive expressly provides for controls in respect of abstractions to be periodically reviewed and, where necessary, updated. I do not see how the Bill squares with that. Article 11.3(e) of the directive states, "These controls shall be periodically reviewed and, where necessary, updated." There is no provision for that in the Bill in respect of these indefinite licences. Section 52 provides for a review but it is not mandatory and is undertaken only in certain circumstances, either on request of the licence holder or if the agency believes there is a risk.

As for EIAs and compliance with EIA and retrospective EIA definitions, section 2 of the Bill provides for EIAs, but the description of EIAs in section 14 does not include any reference to cumulative impacts, a fundamental and crucial part of the EIA and particularly important in respect of abstractions, where a multitude of small abstractions could pose a significant problem. Paragraph 5(e) of Annexe IV to the EIA directive is very clear on this in the context of cumulative effects. Its non-inclusion in the Bill is a clear inconsistency with the provisions of the directive.

As for retrospective EIAs, there is again a clear omission here. The abstractions Bill does not include a determination as to whether carrying out a retrospective EIA would circumvent the purposes and objectives of the EIA directive or the habitats directive as the planning code does. Likewise, reference to remediation is entirely absent from the exceptionality test in the Bill. That is very concerning. Any such assessment of the potential to remedy any past damage is absent from the Bill. Why is that so?

The points that I am raising and that other Deputies have raised emphasise the complexities of the Bill in respect of compliance with EU directives, but somehow the Government thinks 45 minutes will do justice to this. That is utterly impossible. I implore the Green Party Members, who I know are interested in our biodiversity, water, climate and groundwater and abstractions, to ensure, considering that it has taken two decades for this Bill to progress, that the Government provides proper time for this to be discussed. Forty-five minutes on Committee Stage cannot possibly do it.

At no point in the whole Bill is appropriate assessment or a Natura impact statement mentioned. The Bill provides that the EPA may require, for the purpose of determining a licence application, the carrying out of an EIA but not an appropriate assessment. That omission is repeated throughout the Bill. There is no explicit obligation on the agency to carry out an appropriate assessment at any point. It is critical to highlight that although there are frequent references in the Bill to protected areas, those sites are limited to those habitats and species that are directly water-dependent and entered into a specific EPA register. That does not equate to protecting all European sites designated under the habitats directive.

I do not think I need to remind the Minister of State that these directives are not optional; we must comply with them. There are all these questions, omissions and holes in the Bill in respect of important European directives with which we must be fully compliant. It is both our legal obligation and utterly in our interest that we do this properly.

As for retrospective Natura impact statements, the Government cannot be seen to incentivise circumvention of EU directives. We know that from the Derrybrien case and the case law in that regard. As such, it is imperative that remedial Natura impact statements are required in addition to a retrospective EIA.

The Bill falls extremely short in regard to provisions relating to the right of the public to participation. Specifically, the agency is required to assess abstractions and to make important determinations on them in sections 17 and 18, with no provision for public consultation. The Aarhus Convention, the EIA directive and the habitats directive all provide for public participation. It is clearly the case that sections 17 and 18 of the Bill relate to environmental decision-making, which falls under the auspices of the Aarhus Convention and, as such, requires provisions for public participation. Why, then, is that missing from the Bill? We will not find out the answers to these questions in the mere 45 minutes of Committee Stage debate the Government seems to think fit to allow for this.

No abstractions for hydroelectricity would have to undergo an EIA, as outlined in the Bill, but there is no provision for appropriate assessment. While certain projects can be exempt from an EIA and the planning code, that is not the case for appropriate assessment. There are no blanket exemptions from that at all.

Finally, I wish to give examples of unlawful practices we have seen in respect of special areas of conservation and their habitats. While it is very important we do everything we can in respect of our energy security, there are always ways to ensure we do proper legal diligence while allowing projects to go ahead for social and economic reasons if they are needed for energy security.

I reiterate that there is a lot of detail in the Bill that requires proper scrutiny, examination, debate and consideration. We did that at the Oireachtas committee two years ago in the form of pre-legislative scrutiny. We spent a lot of time on that, brought in many witnesses with a lot of expertise and did a very good report. That seemed to sit on a shelf for two years. The Government has not followed through on the directive, which was brought in 22 years ago, in legislative terms until now. After all that time and all the effort the Oireachtas committee put into the pre-legislative scrutiny report, it makes no sense now to shoehorn the end process - the consideration of amendments, which is one of the most important parts of the legislative process - into 45 minutes. That cannot be done in any proper way at all. I therefore implore the Government to give more time to this. I have no issue with the Dáil sitting as long as it takes before the recess to do that. If the Government will not agree to that, it should bring this back straight after the recess, in January, because this is very important legislation, in order that it can be given the time it needs on Committee Stage.

As a member of the Oireachtas Committee on Housing, Heritage and Local Government, I would have no issue with giving it as much time as is necessary on Committee Stage and I doubt other members would either. We could do that in a week or so to consider these amendments and issues in detail in order to do this Bill justice as this country and our environment deserve.

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