Eoin Ó Broin (Dublin Mid West, Sinn Fein) | Oireachtas source

I move amendment No. 1:

In page 9, after line 37, to insert the following: “ “exceptional circumstances” has the same meaning as it has in section 177(2) of the Planning and Development Act 2000 (as amended);”.

Before the Minister of State, Deputy Peter Burke, came into the Chamber, we had the conclusion of a debate on a very significant and complex piece of legislation. In marked contrast to this Bill, that piece of legislation went through all the Stages of the legislative process with adequate time for very serious consideration and deliberation. As a consequence, there was virtual unanimity in terms of the passing of the Bill but also in the view that the Bill was the most robust piece of legislation possible.

This is a hugely important Bill that we all want to see passed and that we should have had more than a decade ago. If it is gotten right, it will greatly assist not only the State but the citizens of the State, communities, businesses and farming communities in their proper management of our natural water courses and all the benefits that has for society. We took quite a considerable amount of time on Committee Stage for pre-legislative scrutiny. On its completion, we issued the report to the Minister in December 2021. Since then, we have been waiting for the Bill to return.

I completely understand there is a requirement at this time of year for emergency amendments and emergency legislation to come through. For example, we just dealt with amendments on which we may or may not have agreed with Government, but there was a logic to their emergency nature. This legislation did not have to be brought forward in this manner.

I know the Minister of State is not the lead Minister on this and that he is standing in for the Minister of State, Deputy Noonan, who is away doing very important business in terms of biodiversity. We could have had a full Second Stage debate this week and the Bill could then have been treated properly in committee early next year. We could have had possibly two to three committee sessions early in the new year to tease this out. The reason is not just the amendments because we can go through some of those amendments now. One of the real values of the committee, which the Minister of State will know because he gave us a considerable amount of his time with legislation that fell under his portfolio, is that we tease things out in that forum. All of us and members of the public who have access to the records of those committee meetings in terms of the maritime planning legislation, etc., benefit from those exchanges.

Here we are with significant legislation which will affect millions of people across the State. We have 35 to 45 minutes to go through this. This is not the Opposition coming in at the end of the year to give out for giving out’s sake. This is not a good way to do business and it should not have been done on this Stage.

One of the biggest disappointments in relation to this group of amendments and the next is the significant number of amendments ruled out of order. That is the privilege of the Ceann Comhairle and the Clerk of the Dáil but if we had more time we could challenge some of those because it is the strong view of many of us that it is a very stringent ruling. We could have challenged the Ceann Comhairle to reconsider and might have been able to have a more substantive debate on those but have not had time.

Probably the most significant area in which the Bill is lacking, to which some of these grouped amendments speak, is with regard to thresholds. The key thing in an abstraction regime is if the thresholds are wrong, you do not capture everything. The poor old Minister of State, Deputy Fleming, did a valiant job on Second Stage when he was thrown in at the last minute. He made the wonderful admission that minutes before coming to us he had to google “impoundment” because he did not know what it meant. He gave us a nice definition. We had a Second Stage debate with a Minister of State who is not even from the Department. This is no disrespect to the Minister of State present or to the Minister of State, Deputy Noonan. I understand the latter is doing important work but we are having a pointless Committee Stage with a Minister of State who has been thrown in at the deep end at the last minute with a tiny amount of time to consider and tease out very technical details. If the thresholds many of us have argued for - a registration threshold of 10 cu. m per day and a licensing threshold of 250 cu. m per day - are good enough in the North and operate perfectly well there, as well as in Scotland and other places, and if, particularly in respect to the licensing regime, it provides a far greater level of understanding of what water has been taken out of the natural table at any point in time, I cannot understand why it is not here. It is something which, unfortunately, we will have to return to.

My amendment is probably in the wrong grouping, which probably reflects the fact the poor old Bills Office is under enormous pressure to get this in. This amendment relates not to Nos. 2 and 4 from the Regional Independents but to other amendments elsewhere. It relates to the retrospective environmental impact assessment provisions of the Bill which seem to be an attempt to replicate the substitute consent provisions we have recently dealt with in the Oireachtas. The problem is the said provisions do not have the clarity required, not only for those interpreting the Bill but also to be fully compliant with our European obligations under a variety of directives. The Minister may not know the detail of this but when we were doing pre-legislative scrutiny, our committee commissioned a significant report from the Office of Parliamentary Legal Advisers, OPLA, on the extent to which the legislation was compliant with a variety of EU directives. We did that because we had expert testimony before the committee which said it was not. I was taken back by the OPLA's advice, which was on the general scheme and not on the final Bill. In a significant number of areas the view - not of an NGO or somebody independent of the Oireachtas, but of the legal advisers to our committee - was not that many of the provisions of the general scheme may be in breach of EU directives, but that they were in breach of them. We will not have the time as we go through these sections to tease out the extent to which the hard-working officials in the Department have resolved those issues.

We want to support the Bill and will not vote against it but there are serious doubts over its legal compliance, right down to the thresholds. The thresholds are not an arbitrary level that is set. If the thresholds are not set in compliance with the aims and objectives of the directives in question, we could face enforcement action. We have a bad track record. The Minister of State knows that because in our committee we deal regularly with infringement proceedings against us on wastewater treatment and a variety of other areas in relation to water. I would be interested to hear the Minister of State's response to some of the amendments but given that, I presume, he has no familiarity with the Bill, he will read the script, we will respond and we will move on to the next one.

There are occasions in this House where debate is not adversarial and the general view of Members concerns getting the best legislation possible in the best interests of the country. On the basis of the information I have in the limited time we have had to scrutinise this, I do not believe this legislation does that. It is a shame because for the sake of a couple of weeks and a couple of sessions, not on the floor of the Dáil but in committee, we could have teased out these things and potentially highlighted issues to the Minister of State which he could have resolved on Report Stage. We have been denied that opportunity.

If there is infringement action from the European Commission against us for failure to comply with the directives in question, I want it on the record of the Dáil, even if very few people are listening, that we highlighted this concern, it could have been avoided and we would have worked co-operatively with the Minister of State to address that. I hope that does not happen but, unfortunately, it could.

My amendment No. 1 seeks to insert a definition to give greater clarity to the exceptional circumstances relevant to the exceptionality test with respect to the retrospective environmental impact assessments for major abstractions that are already happening and that will be subject to an application for licence.

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