Dáil debates

Thursday, 8 December 2022

Water Environment (Abstractions and Associated Impoundments) Bill 2022: Second Stage

 

1:30 pm

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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I move: "That the Bill be now read a Second Time."

On behalf of the Minister for Housing, Local Government and Heritage, Deputy Darragh O'Brien, I am happy to have the opportunity to introduce the Bill. The purpose of this Bill is to set out a system of controls on the abstraction and impoundment of water to protect our water environment and to ensure compliance with Ireland's responsibilities under the water framework directive.

Article 11(3) of the directive requires member states to implement measures to control the abstraction of fresh surface water and groundwater, and impoundment of fresh surface water. This provision of the directive has not been transposed into Irish law before now, and the Bill is a significant milestone in Ireland's overall environmental protection measures. Unfortunately, the absence of a comprehensive and modern abstraction management and control regime in Ireland has led to the EU to open infringement proceedings against Ireland for failure to fully transpose the directive. Enactment of the legislation will form a considerable part of Ireland's response to these proceedings.

In general, abstraction pressures on our water system are relatively low compared to some of the more significant pressures identified in the Draft River Basin Management Plan 2022-2027. Detailed assessments of our water bodies by the Environmental Protection Agency, EPA, and the local authority waters programme, LAWPRO, as part of our river basin management planning cycles will aim to refine and identify the most significant abstraction pressures. This will give us a better picture of the nature of these pressures and the water bodies most affected.

Changes to our climate and meteorological pattern in recent years have also given rise to concerns over the management of our water resources. Not only do we want to have waters of sufficient quality, we also want sufficient quantity of water to supply our growing population centres and industries and to help us to continue to produce high quality foods on our land.

At a high level, the Bill provides for a modern registration, licensing and control regime for water abstractions. Its focus is on the largest abstractions in Ireland, and those smaller abstractions that may be causing short-term or ongoing environmental damage. It is designed to be based on the risk of a water body not meeting its environmental objectives under the water framework directive and is not intended to control all abstractions. This risk-based approach is in keeping with the principles of the directive and is similar to the approach taken in other EPA environmental licensing regimes. The proposed system of registration and licensing is to be administered by the EPA, with local authorities also maintaining an ongoing enforcement role.

The Bill also includes provisions relating to water impoundment infrastructure associated with abstractions. For example, where a dam or other barrier is interrupting the flow of a river for the purposes of abstracting water, the controls in the licence will extend to the operation of the impounding infrastructure. I will reiterate that for the benefit of others. I do not normally deal with matters relating to this Department and last night when I came across the word "abstractions" and the associated term, "impoundments", I had to consult Mr. Google to find out exactly what it was. In fairness, that was before I got the full briefing from the Department. For people listening in, they must be a little bit curious as to what we are talking about. Abstraction is sinking a well and getting water out of the ground or from a river or reservoir. Impoundment is essentially a technical word for what one might call a dam on a river or lake. If I am not correct in my layman's interpretation, Members can feel free to correct me. I want to explain what we are talking about, as some people will not understand the technical words we use here today.

The most significant abstractor of water in Ireland is Irish Water. Upwards of 80% of the current registered water abstractions are drinking water abstractions operated by Irish Water. The provisions of the Bill will allow Irish Water to operate these abstractions within a framework that protects the quantity of water available, and will ensure that the EPA can regulate these abstractions appropriately.

In particular, the provisions of the Bill will allow for a streamlined, comprehensive and robust application process for the water supply project from the Parteen Basin to supply the eastern and midlands region. It modernises the legal framework around significant abstractions and will ensure that appropriate levels of oversight and control will be applied to that proposed abstraction.

The powers provided for Irish Water in respect of its abilities to interfere with water rights where it proposes to carry out a public abstraction are retained from the currently operating Water Supplies Act 1942, and are required to be retained to allow for the repeal of that Act. No new power is being granted to Irish Water in this respect.

Where Irish Water proposes to carry out a public abstraction, a robust objections procedure is provided for. Where there are materially adverse effects on water rights arising as a result of the carrying out of a public abstraction by Irish Water, the Bill provides for a clear compensation framework.

The issue of the thresholds for registration of water abstractions was raised during Seanad scrutiny of this Bill, specifically in respect of the lowering of the registration threshold to 10 cu. m. The Department gave the issue of the registration threshold careful consideration. This included the recommendations of the pre-legislative scrutiny, PLS, report, which resulted in changes to the Bill to give the Minister the power to alter thresholds on the recommendation of the EPA. I note again that the choice of thresholds is based on scientific evidence and data and this system is risk based. It does not seek to impose requirements where they are not necessary on environmental grounds, especially in the resource intensive area of licensing. The Department is confident that the EPA will have the ability under this system to fully protect our water bodies and enable them to meet their environmental objectives established under the river basin management plan in line with the water framework directive.

The EPA estimates that the registration threshold of 25 cu. m per day captures 99.5% of the total volume of water abstracted on any given day, and that a reduction to 10 cu. m per day would account for additional registration of just 0.1% of water abstracted in the State, while simultaneously resulting in an estimated additional 10,000 registrations. If we were to go with the lower rate, we would cover 99.6% of the volume of water abstracted, whereas going with the 25 cu. m per day would cover 99.5%. That obviates the need for approximately 10,000 additional registrations being continued.

The lower rate would result in a five-fold increase in the administrative burden on the EPA in undertaking the assessment of significance under section 18 and potentially lead to delays in the licensing of the more high-risk abstractions. The Department is confident that the EPA will have the ability under this system to protect our water bodies and enable them to meet their environmental objectives established under the river basin management plan in line with the water framework directive.

I will now elaborate on some of the Bill's provisions. This is a relatively detailed Bill comprising 11 Parts, 116 sections and one Schedule. It is largely a technical Bill.

Part 1, covering sections 1 to 7, addresses preliminary and general matters. These include the Title of the Bill, arrangements for bringing the Bill into operation and standard provisions. It also includes in section 7 some existing legislative measures that are being repealed to allow for the strengthened legal provisions of the Bill.

Part 2 confers regulation-making powers on the Minister to regulate unlicensed abstractions. This will include abstractions below the registration threshold and those awaiting a decision on a licence application. Local authorities will be responsible for ensuring compliance with these regulations under Part 9.

Part 3 details the exemptions from the requirements of the Bill that may be applied by the Minister by way of regulation. This covers exemptions allowed for under the water framework directive.

Part 4 includes sections 11 to 13 and provides for the maintenance of a register of abstractions over a threshold of 25 cu. m per day by the EPA. These provisions replace the provisions of the European Union (Water Policy) (Abstractions Registration) Regulations 2018, which are repealed under section 7 of the Bill.

Part 5 is the most substantial Part and sets out the principal licensing provisions for those abstractions that require a licence. Sections 14 to 20 contain the main provisions relating to abstractions that require a licence. These include the circumstances in which an abstractor is required to apply for a licence, the requirements on the EPA to assess these applications and the powers to grant or refuse a licence. They also provide for the Minister to vary the thresholds for licensing.

Sections 21 to 28 address licence applications that require environmental impact assessments, EIAs, to be carried out. These sections place particular emphasis on the procedures to be followed in determining an EIA, the level of detail required to make a full assessment and, most important, the co-ordination of EIAs between the EPA and the relevant planning authorities.

Sections 29 to 36 relate to licence applications for abstractions that may be subject to retrospective EIAs. A retrospective EIA is required in those cases where the EPA determines that an EIA was required and should have been made prior to or after the commencement of the abstraction. For a variety of reasons, an EIA may not have been undertaken at the time the abstraction commenced. The processes set out in these sections of the Bill ensure that the appropriate EIA is undertaken and all legal obligations are met and adhered to.

Sections 37 to 45 provide for combined abstraction licence applications. These are applications that comprise existing abstractions - those operating prior to the commencement of the Bill - and revised abstractions that will increase the existing abstraction rates. The purpose of these sections is to ensure that the existing abstraction is sufficiently assessed in terms of any retrospective EIA and to provide for an equally robust assessment of the future proposed abstraction rate. Scenarios like this may arise where population growth predictions necessitate an increase in drinking water supplies.

The next chapter of Part 5 includes sections 46 to 55 and provides for a number of different requirements to complement the previous licensing sections. This chapter includes provisions around applications for joint licences, surrenders, transfers, reviews, revocations and suspensions. These provisions are all necessary to allow the EPA and licenceholders sufficient scope to address changing circumstances as they arise and enhance the ability of the EPA to manage the risks associated with these changes.

The final few sections of Part 5 are sections 56 to 59. These contain miscellaneous provisions relating to licensing that provide for judicial reviews of decisions, regulation-making powers for the Minister, EPA guidelines for the licensing process and minor amendments to the licences.

Part 6 focuses solely on abstractions by Irish Water. Sections 60 to 73 focus on the powers of Irish Water to take a public abstraction, provisions for objections to those abstractions, a decision process for An Bord Pleanála on objections, and provisions to address claims for compensation. These provisions for compensation are likely to be used where a person feels that his or her rights in respect of water would be materially adversely affected by a public abstraction by Irish Water.

Sections 74 to 82 set out the provisions for Irish Water to undertake temporary abstractions to supplement or replace existing abstractions on a short-term basis. This may arise in the event of a severe drought, an infrastructural failure or a contamination of the raw water source. These temporary abstractions are confined to eight weeks duration, with the possibility of a single eight-week extension being granted. Section 80 provides for the Minister to make an order, or not, to exempt a temporary abstraction from the licensing requirements in emergency circumstances. Any such order would only be considered on the basis of a civil emergency where the abstraction was for the sole purpose of responding to the emergency. As with other temporary abstractions, the same eight-week time limit applies to an emergency abstraction under section 80. Section 82 provides for appeals and compensation related to Irish Water temporary or emergency abstractions.

Section 83 puts a framework around Irish Water abstractions from ESB reservoirs, with a particular focus on ensuring legal agreements are in place between the parties before an abstraction licence can be granted.

Part 7 relates to Waterways Ireland and its statutory functions and to abstractions from navigable waters and canals. This Part ensures that Waterways Ireland has significant input into EPA assessments of abstractions from navigable waters operated by Waterways Ireland. It also provides that any licensed abstraction from a canal can only be undertaken with the agreement of Waterways Ireland.

Part 8 is a short Part with just one section. It addresses the operation and safety of hydroelectric schemes and provides that the EPA shall have regard to the functions of the ESB when considering an application for an abstraction licence associated with a hydroelectric scheme.

Part 9 contains the principal enforcement provisions of the Bill. Sections 88 to 96 set out the enforcement functions of local authorities and the EPA, including their powers to appoint authorised persons to undertake enforcement actions.

Sections 97 to 102 provide for the issuing of compliance notices and the requirements on those that receive a compliance notice. These notices can be issued by either the local authority or the EPA for a number of different offences, including abstracting water without a valid licence or breaching the conditions of an existing licence. The notices can also require the owner of the abstraction to take measures to protect the environment and-or to meet the environmental objectives of the water body concerned.

Sections 104 to 109 further set out the offences throughout the Bill, the powers of prosecution and the penalties associated with a conviction for an offence.

Part 10 contains just four sections that relate to miscellaneous and transitional provisions. The transitional provisions are in place to ensure the integrity of the legal framework following commencement of the Bill and the repeal of the Water Supplies Act 1942, certain provisions of the Local Government (Sanitary Services) Act 1964 and the 2018 abstraction registration regulations.

Part 11 contains three sections that set out the required amendments to the Canals Act 1986, the Shannon Navigation Act 1990 and the Planning and Development Act 2000. The most substantial of these is section 116, which amends the Planning and Development Act. The amendments insert references to water abstractions and the need for consultation in certain circumstances between planning authorities and the EPA, including on EIAs.

The Schedule lists the public bodies referred to in the Bill.

I thank the Joint Oireachtas Committee on Housing, Local Government and Heritage for the detailed pre-legislative scrutiny that was afforded to the general scheme of the Bill in October 2020 and its subsequent report in January 2021. I am glad to say that the recommendations set out in the committee's report played an important role in the development of the policy underlying this Bill. I look forward to Deputies' contributions as we progress the Bill through the parliamentary process.

1:40 pm

Photo of Joe CareyJoe Carey (Clare, Fine Gael)
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Next is Deputy Ó Broin, who is sharing time with Deputies Patricia Ryan and Ó Murchú.

Photo of Eoin Ó BroinEoin Ó Broin (Dublin Mid West, Sinn Fein)
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I thank the Minister of State for so ably filling in for his colleagues on such technical legislation.

This Bill, despite its technical nature, is important.

Since the water framework directive was introduced in 2000, there has been an obligation on this State to know something very simple, namely, how much water is extracted from our natural water sources at any given time across the country. Why is that important? If you do not know what is being abstracted, you cannot manage it. You cannot manage it to ensure that communities and businesses, including tourism and natural wildlife businesses, have access to water and that water is being properly maintained from an environmental and ecosystems point of view. In an era of climate change in which droughts and floods are becoming increasingly prevalent, including in our own country, the idea that we are only now beginning to consider asking people to tell us how much water is being extracted from the water table is truly astounding. This is no abstract matter, if Members will excuse the play on words. As the Minister of State will know, given his own constituency, flooding and drought are real issues that have huge impacts on communities, businesses, wildlife and biodiversity.

For these reasons, it is exceptionally disappointing that, despite the committee having given the Government this pre-legislative scrutiny report two years ago, we are getting 90 minutes next week to consider amendments. Is it 90 minutes?

1:50 pm

Photo of Cian O'CallaghanCian O'Callaghan (Dublin Bay North, Social Democrats)
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It is 45 minutes.

Photo of Eoin Ó BroinEoin Ó Broin (Dublin Mid West, Sinn Fein)
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We are getting 45 minutes to consider amendments to a technical Bill. The Government often blames committees, arguing that it takes them too long to do pre-legislative scrutiny and that is why there is a rush at the end. Our detailed, considered report has been with the Government for two years, yet it is only now that we are getting to debate the Bill, with only a tiny amount of time provided to discuss what will no doubt be a significant number of amendments from a number of Opposition Deputies. I mean this with no disrespect. I thank the Minister of State for thanking the joint committee for its hard work in doing the pre-legislative scrutiny. The problem is that the Government has not included in the Bill any of the key recommendations in the pre-legislative scrutiny report. Thanks are all well and good but we would much prefer if the Minister of State’s party colleague and his officials listened to us and the key recommendations we made. The thresholds are wrong. I will return to that in a moment. The registration threshold and the licensing threshold are not low enough and that will come back to haunt us.

There are real problems with the level of compliance in the Bill with a range of legal obligations, including the environmental impact assessment, EIA, directive, the water framework directive, the Aarhus Convention and others. There are also legally questionable sections in the Bill in terms of exemptions and the possibility for people to continue abstracting large volumes of water with licences, even where it has been shown that such abstraction is causing significant damage to the water quality and, ultimately, to communities, businesses and the environment.

The Minister of State will not know this but one of the significant things the committee did was to ask the Office of Parliamentary Legal Advisers, OPLA, to give its view on the level of compliance of this legislation with our EU legal responsibilities. The OPLA’s report was really damning. It is very rare that our committee has made such a request when we do so, the OPLA is often very cautious in its report. The Oireachtas has a right to know in summary form what that advice was.

On public participation, the OPLA’s advice was that with respect to the relevant section of the Bill, while the language of the EIA directive is being used, it does not appear to be in compliance with the public participation requirements of the directive. That is with respect to the general scheme but I see no change in the Bill itself. The advice referred to the thresholds, one of the central weaknesses of the Bill. It described them as being arbitrary and solely based on size and stated that they prevent environmental impact assessment for existing abstractions to occur below 25 cu. m and proposed abstractions below 250 cu. m which, in the view of the OPLA, the European Court of Justice had held to be contrary to the EIA directive as well. Over again in its advice, the OPLA listed instances where it genuinely believed that this legislation, albeit in the general scheme, was not in compliance. Again, because we will have such limited time, it will be virtually impossible for us to have an exchange with the Minister to allow him to convince us that the very serious legal concerns the OPLA had with the general scheme have been satisfied in the Bill. It will be virtually impossible to do that in the short time provided.

What is the problem with the thresholds? Let us picture what we are talking about here. What is 25 cu. m? I think that people would like to know what it is because 25 cu. m does not mean much to most of us. It is the daily usage of water of 2,250 people. We are saying that below that amount, there is no requirement to register. Registering is not complicated. It is done online in the North where the threshold is 10 cu. m, which we recommended in our pre-legislative scrutiny report. It is very easy, administratively simple and there is no cost to register.

The licensed threshold is 2,000 cu. m, which is the daily water usage of 18,000 people. What we are saying is that where less water than that is being used, say the daily usage of 17,000 or 16,000 people, there is no licensing requirement whatever. That is beyond belief if we want to be compliant with a directive which is about the proper management and maintenance of the quality of our water for all of us – human, animals and ecosystems – that depend on it.

The worst aspect of this is that the proposal in our pre-legislative scrutiny report is what exists 90 miles up the road. This has been in existence in the North of Ireland, Scotland and many other European jurisdictions. If it could be done up there and was good enough up there, then why not here? Would it not make more sense for us to have a single abstraction regime with single thresholds North and South? The fact we do not have that is deeply concerning. Registration is just registration; it is the licences that are the key. I note the Minister of State did not indicate how much water will be covered by the licences as a percentage of the total amount of water in the State because that is the figure that is really important.

The idea of providing indefinite licences is enormously problematic. Surely there should be mechanisms for review and withdrawal of licences if the proper management of our water system requires it. The idea of full transposition of the environmental impact assessment directive and retrospective environmental impact assessment definitions on existing large-scale abstractions is absent from the Bill and hugely problematic.

I could be wrong on this too, and I look forward to the Minister of State correcting me at any stage if I am, but there is no provision in the Bill to refuse a licence application from an existing abstractor, even if there is clear evidence from the Environmental Protection Agency that such a refusal would be the most appropriate course of action both for the protection of our water system and compliance with the directive.

The other major issue the committee addressed was the resourcing of the Environmental Protection Agency. It is an organisation for which I have enormous respect. It does very important independent work and regularly sounds the alarm at the Government’s failure to properly manage all aspects of our water system, from the natural water courses and river basins to our drinking water and wastewater. It was patently clear to the committee that it does not have the resources to even administer the limited scheme before us today. If we are serious, 22 years after the introduction of the European directive designed to assist this State to improve and better manage its water courses, we need to ensure the EPA has adequate resources. That is not just staff but also powers of enforcement. I got the impression from the EPA that its big concern was that if this legislation went any further than what is currently being proposed by the Government, it would be overwhelmed. That is not a reason not to go beyond this legislation but it is a reason to ensure we not only amend the thresholds and the other technical aspects of the Bill but also give the Environmental Protection Agency the resourcing and powers it needs to do a very simple job, namely, to properly protect and promote the quality of our water so that communities, businesses, nature and our ecosystems are properly protected and improved. This Bill does not do that.

We will not be opposing this Bill but we will right tooth and nail in the 45 minutes the Government has given us to try to improve it. The Minister of State should rest assured that this issue will come back to the Oireachtas in the future. It may be after this Government is gone and another Government is in its place but this battle is not over and it will continue until we get this right.

Photo of Patricia RyanPatricia Ryan (Kildare South, Sinn Fein)
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The purpose of this Bill is to create a registration and licensing system for the abstraction of water from the water table.

This is yet another EU directive that the Government has been slow to implement. The Government has been very fast in trying to saddle the people with water charges to suit its privatisation agenda but slow in addressing water quality and supply issues.

The Bill is a legal requirement of the water framework directive and is many years overdue. Many other jurisdictions, including the North of Ireland and Scotland, have had similar water abstraction arrangements for many years. Deputy Ó Broin has referred to this. There must be proper management of the water system. Having a registration and licensing system for water abstraction is a good start. This Bill will modernise the regime for water abstraction, which is outdated and limited in scope. The current scheme is based on legislation enacted in 1942 and 1964.

The Bill will provide a pretty simple registration system for water abstraction, subject to a minimum threshold under which registration is not required. The EPA will administer a licensing regime for water abstraction over a specified threshold. Uisce Éireann, as the national authority for water services, will have the power to abstract subject to EPA licensing and to appeal to An Bord Pleanála regarding possible impacts on third-party water rights. Emergency powers will be available to Uisce Éireann to abstract, where required, due to drought. The Bill provides for compensation for material adverse effects caused by interference with water rights as a result of public abstraction.

I am wary of going into too much detail given the time allowed. This important Bill runs to 114 pages and the digest alone runs to 22 pages. The Sustainable Water Network report runs to 231 pages. The Oireachtas housing committee's pre-legislative scrutiny report unanimously agreed that the thresholds proposed by the Government should be raised to bring them into line with those in the North of Ireland. The committee made 13 recommendations in total and the Sustainable Water Network has called for their implementation in full.

The thresholds for both registration and licensing are too low. During pre-legislative scrutiny, the committee heard evidence on thresholds currently operating in the North and Scotland. Sinn Féin tabled amendments in the Seanad to give effect to the committee report recommendations but they were rejected by the Government.

We must ensure that all abstractions of 10 cu. m per day or more are required to be on the register of abstractions. All abstractions of 20 cu. m per day or more should have to apply for an abstraction licence. The Minister of State must recognise the need to ensure species and habitats are protected under the habitats directive and birds directive. Over-abstraction can cause springs to dry up and wells to empty. It can also cause subsidence and reduced river flow. Poor management of the water system can have significant health, environmental and biodiversity implications. Poor management of the water system can also have a negative impact on water supply and quality, particularly near large water extractors, including data centres and drinks manufacturers.

Sinn Féin has argued that the provision in the Bill that no existing abstractor can be refused a licence should be removed. We need to go further to prevent further environmental damage. The EPA must be properly resourced to run the registration and licensing regime. It is vital to have an adequate inspection and enforcement regime to underpin the regulations.

As the Minister of State knows, where I come from is pretty near the border with his county. We call Monasterevin the Venice of Ireland. We must give specific recognition and protection to canals and navigable waters there.

2:00 pm

Photo of Ruairi Ó MurchúRuairi Ó Murchú (Louth, Sinn Fein)
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I appreciate that. I was unaware of the Venice of Ireland. Every day is a school day.

My party position has already been laid out fairly clearly. People will probably say I should just sit down and say nothing, making everyone a lot happier, but unfortunately I have an inability to do so.

Deputy Ó Broin, who I suppose has made an assertion of sorts, referred to the logic for the licensing and registration thresholds and the point made that the EPA would not be fit for purpose, would come under far too much pressure and would be unable to do the job that is necessary if it were to do exactly what is done in the North. That point does not make a lot of sense. The fact is that we support the general notion of what needs to be done and all accept that we need to know by how much we are reducing the water table. That goes without saying. We are in a very changed world because of climate change and know about the huge impact on biodiversity. A considerable number of those who might have believed there was no need to worry about climate change have changed their minds based on the weather forecasts over recent years.

We have come under severe pressure owing to water supply. We have seen very low levels in lakes, rivers and reservoirs. My town, Dundalk, has had issues. Like everywhere else, it is dealing with an increased level of manganese. There is considerable research on why there is such an increase. I am told it sometimes exists at the bottom of water sources and features when the water is churned up. This happens easier when dealing with lower water levels. I will return to this.

The legislation proposes a two-tier regime. We all accept that but just cannot accept the registration threshold of 25 cu. m and the licensing threshold of 2,000 cu. m. We need these to be 10 cu. m and 250 cu. m, respectively.

It is hardly a shock for Sinn Féin to be proposing something on an all-Ireland basis but the fact that there has been good practice on this island and in other places gives me no reason to believe we could not follow what is happening elsewhere. If there is a problem with the EPA regarding resources, we are leaving ourselves wide open to a considerable number of issues if we do not address it. We need to make sure it is absolutely fit for purpose.

The Minister of State welcomed the work done by the committee and the report, but, as Deputy Ó Broin stated, many of its proposals have not been implemented. It makes absolute sense to do so. Ultimately, we all know the EPA needs to be resourced if it is to be responsible for managing the system. It does not make any sense for us to have rules if we do not have enforcement capacity. Therefore, the latter needs to happen.

We are back to having the conversation we always have at Christmas about rushing legislation. Only 45 minutes has been allowed to deal with a large number of issues of incredible importance in ensuring we have a fit-for-purpose water abstraction system and can deliver healthy water sustainably and with the steady supply that is necessary. We have all spoken about the changed water supply circumstances owing of climate change. What I propose is necessary.

I will return to the local issue. The people of Dundalk have been dealing with absolutely brown water for the past several years. Nobody believes what they hear from Irish Water on flushing. I have met representatives of Irish Water in the past while on the manganese issue. Manganese reacts with chlorine and can lead to brown water, which is not particularly appetising. Irish Water is attempting to put a process in place in Cavanhill that will remove the manganese from the water. It has not had much success and reckons that by the end of quarter 1 of next year, in or around March, it will know the solution. However, it could take upwards of two years to deliver a solution that would ensure the water of Dundalk looks like it should, along with being reasonably healthy.

That needs to be done.

To return to the Bill, sufficient time must be provided to allow due diligence to be done. We must put something in play that is fit for purpose because that is not we have at the minute. It is not good enough.

2:10 pm

Photo of Cian O'CallaghanCian O'Callaghan (Dublin Bay North, Social Democrats)
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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.

2:30 pm

Photo of Steven MatthewsSteven Matthews (Wicklow, Green Party)
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I find myself in agreement with Opposition speakers here today. We worked together on the relevant Oireachtas committee. As has been said by others, we heard from a number of witnesses who advised us and we put together a report with a number of recommendations. The most important piece of information the committee received was legal advice from the OPLA on a number of questions we raised. I am unsure as to whether we did or can share this legal advice with the Department but I think it is extremely important that the Department considers the questions raised in that legal advice. I will go through them in more detail.

The first thing I will discuss is the issue of thresholds. I think the thresholds are wrong. One of our Senators put down an amendment that would have ensured the threshold would have been reduced from 25 cu. m to 10 cu. m. That amendment was ruled out of order as it would place a cost on the State or the people. I cannot remember the difference between them. I understand why that requirement is there and why the Bills Office may rule, and I ask for the Leas-Cheann Comhairle's judgment on this as well, but I do not understand. Everything administrative places some level of cost on somebody. What was being proposed would have been of far greater benefit to the people and the State than what is being proposed in the Bill. I ask the Minister of State to consider that because if I put down the same amendment, it will get the same ruling here and it would be a waste of time. I ask the Minister of State to seriously consider introducing the 10 cu. m limit for registration.

I do not do this to place an onus or unnecessary regulations or rules on people who are abstracting less than 25 cu. m. I ask for it to assist us in managing our water quality, abstraction rates, flow rates, ground water and lakes and in order that we would have a comprehensive register. One of the reasons we are trying to do this is because we do not have such a register. Much of the registration is kept in local authorities and is not centrally located and that is what we would be able to do through this Bill. In order to be able to manage something, you need to have the numbers. You need to know what is going on. I would imagine that anybody who is abstracting water would want to protect that water source. In cases where we have low flow, low ground water or low lake levels, I think anybody abstracting from those sources would like to play his or her part in trying to manage and ensure we do not over-abstract. Having a 10 cu. m threshold and having registration is not about putting rules and anything more difficult on people who are abstracting; it is about making sure we can communicate that we know where those locations are and can manage our water resources. I do not think anybody abstracting that water would mind doing that.

Regarding the cost on the State or the people, when the EPA and Irish Water, which are the two bodies tasked with this, appeared before the committee, they said that registering is not an onerous process. It is quite an easy process to register so we are not talking about some difficult and hugely administrative burden involved in trying to register these 10 cu. m. I imagine that others will put in that same amendment and we would have good reason to do so because it is similar to what we see in other jurisdictions such as Scotland and Wales. They have a similar hydrological cycle and similar geology, so there is no reason we should go for 25 cu. m when they go for 10 cu. m. I hope the Minister of State can bring that forward on Committee Stage because then it would not be subject to being ruled out of order, which would probably be the case if I or others brought it forward.

In terms of the lawfulness of that threshold, as I remember the legal advice, the 25 cu. m was an arbitrary figure, may not stand up to scrutiny and may not be compliant with the water framework directive. The reason we are trying to do this is because it is incredibly important that we manage our water. Over the past two years, we have had many discussions on water, Irish Water, water quality and water supplies. We were held to account in Europe because we failed to have a proper abstraction management system or register in place. What I feel we may be doing here is trying to comply with that European ruling and putting in place a system so we can go back and say we are now compliant with that infringement order. I am not sure what the correct terminology for it is. However, what we will be putting in place will eventually be found to be non-compliant with the water framework directive so it will be an infringement similar to that but just on another basis. My concern is that we are just pushing something down the road. We are better than that. I think all of us in here want to protect our water quality and environment.

The advice from the OPLA is quite clear. Often when you read legal advice, it can be quite complex and difficult to understand. The advice we were given was really clear so I hope the Minister of State takes that into account, considers it and sees what can be done.

I note that we got quite some detail on water abstraction during pre-legislative scrutiny. We were told that 4% of rivers, 9% of lakes and 8% of ground water bodies are at risk due to abstractions. They appear to be small figures but our hydrological cycle is changing. We are going to have periods of drought, high rainfall and flooding and those figures may change. It would be wise for us to put in place a system that recognises that if we are not aware where all these abstraction points are, we cannot manage them properly. Water is one of those vital and finite resources where failure to manage it affects health, our country and every single person in this country, not just the people who abstract. It affects our economy and can have a massive detrimental impact on our country in general. I hope the Minister of State takes these points into consideration for the next Stages.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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It is really hard to think of anything that is as necessary to life as water. Next to food and heat, it is truly essential. When the previous Government attempted to bring in water charges, we were constantly told by various business interests that water would be the new oil in the coming years as the environment globally became threatened by the climate crisis and other crises. When Fianna Fáil, the Labour Party and Fine Gael tried to ram through water charges, they were quick to tell us how precious a resource water is. That was their main justification in pushing water charges on ordinary people.

While the name of this Bill might seem abstract, it could hardly deal with anything more fundamental and basic to life. Like a lot of Bills that come before us, the rationale is good. The need for some regulation of water taken from our rivers and lakes is self-evident and we know the national picture in terms of water quality is grim, that EPA reports on our rivers and lakes are regular desperate warnings about the state of our waters and the biodiversity they support, and that nitrogen is choking our coast and rivers. Any Bill that seeks to regulate and protect our water systems is welcome.

However, I am again struck by a paradox when it comes to how the State regulates any and every sphere. We are told this Bill will give effect to several EU directives. Essentially we have to legislate. As we often do, we are choosing with this Bill the path of least resistance - minimal regulation and the bare essentials required to get us over the Brussels line. When you look at this Bill and read over the very useful Seanad debates on it, a few questions jump out and it would be good if the Minister of State could clarify matters. As was highlighted in the Seanad debate, the threshold for registration is 25 cu. m while the threshold for licensing is 2,000 cu. m.

I am at a loss to understand why anything below such large volumes of water is exempt from regulation. It is at odds with the regulations in the EU and the UK and even within the North of this country. The threshold has been estimated to be the same as the amount of water required to supply 42 households. The Seanad debate heard that of the 21 water-bottling plants in the country, none would pass that threshold. How does that make any sense?

I know that the Minister of State has been asked this question multiple times, but has the Government resolved the conflict between this Bill and the advice of the OPLA in relation to the thresholds on the volume of water can be taken before there is a need to hold a licence or even to be registered to do so? The OPLA has suggested that it is inconsistent with the EU directive, and that the EPA would find it impossible to assess whether there is any determination of the status of water bodies if the threshold is below 25 cu. m. Why are we enforcing different standards between existing licence holders or extractors and new licence holders? Why does the legislation contain such large categories of exemptions? We know that the likes of Diageo and Glanbia take significant amounts of water from our water bodies, but I am unclear on whether this legislation essentially gives them a free pass again. That needs to be clarified. If it does, the Minister of State might explain the logic behind regulating to protect our water bodies but ignoring vast sections of industry that are placing a demand on them.

I want to talk about data centres. Will this Bill regulate the use of our water by data centres? We know they require massive amounts of water as well as energy. While we wait to see if the lights will go out this winter because of our insane policy of supporting the unbridled proliferation of data centre building, the other side of that coin is the significant use of water at those centres. Despite the greenwashing associated with them, they are a massive draw on our water supplies and our water bodies, yet we seem to be largely ignorant about how much and what water is being used. According to figures gathered by The Business Post, the average data centre uses about 500,000 l of water per day at the lower estimate. It is reported that this figure has the potential to rise to 5 million l per day. The Facebook data centre in County Meath used 395 million l of water in 2019, and that site is currently being significantly expanded. One data centre in Dublin filed planning applications that suggested it could use up to 4.5 million l of water a day. Of Amazon's large network of data centres in Dublin, permission sought for a centre in Dublin 17 stated that it could use 296,000 l of water a day, a facility on the Belgard Road could use approximately 320,000 l of water a day, and one in Blanchardstown could use 330,000 l a day, according to The Business Post.

When I asked Irish Water about data centre water use, its replies suggested that it does not know what the level of usage is, and that it does not think it is that important to monitor the volume and quantity of water used. Officially, it reported to me, when asked, that while the overall percentage consumption of water may be low, at 0.13%, it is 810 million l for 24 centres, or an average of 33.75 million l per centre each day. That may baffle people, but there are very obvious problems with the answer. The figures supplied relate to water use for 24 data centres, but we know that there are more than 70 data centres in this State. Irish Water has given no convincing explanation with regard to the other 50 or so data centres. Worse, it does not seem to have an issue with the proliferation of data centres, or even a guess at what might happen when the next dozen or so hyperscale data centres are built and come on stream. That is extraordinary, and stands in stark conflict with the attitude to domestic and household use by ordinary people. What is even more alarming is the full answer from Irish Water, which states:

Data Centres are one type of non-domestic customer and we don’t analyse them uniquely in planning for future demand as they would represent a very small percentage of current and future non-domestic use. Data Centres mainly use water only for staff facilities and cleaning; some data centres do use water for cooling purposes, but based on the Irish Climate, that would be for a short number of days per year.

Perhaps someone should tell Irish Water about climate change and the impact of global warming on this country. It seems the State bodies responsible for this and those responsible for regulation have little interest in knowing how much and where our water is used by industry. Again, we are forced to regulate. We still seem keen to go ahead with light-touch or no-touch regulation.I am afraid this Bill is another example of such regulation. I would appreciate the Minister of State attempting to answer the questions that have been posed.

2:40 pm

Photo of Seán CanneySeán Canney (Galway East, Independent)
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I welcome the opportunity to speak on this most important legislation. Listening to the debate, I think there is a fairly clear message that not enough time is being provided to consider this important Bill. A 45-minute session on Committee Stage next week is not good enough.

On the topic at hand, we are talking about the extraction of water and how we manage and regulate that. We are discussing how we ensure we do not end up with a crisis every so often if there is a drought or a flood. I am sure Leas-Cheann Comhairle knows all about the extraction of water from Lough Corrib in Luimnagh, the amount of water we take from the lake, and the extent of the population served by that water. It serves people from Tuam to Oranmore and right across the area. I find that we are putting a huge amount of effort into purifying the water, but at the other end of it, we are actually polluting the water first.

We have come to a stage in Ireland where we have to decide whether we are going to be serious about how we regulate and how we implement policies. For example, we have a hit-and-miss approach to how sewage is processed in this country. Scattered around County Galway, there is a proliferation of private wastewater treatment plants and housing estates that have been left by builders and developers, who have sold the houses. The residents are left to maintain these systems, to pay for everything that goes wrong with them and to pay for the power that runs them, etc. I believe this is an environmental time bomb that is about to explode on us. Some of these treatment plants are located near our watercourses. In Corofin, there are six such private plants on the edge of the River Clare, which feeds into Lough Corrib. We can talk about levels and everything else, but we must talk about the quality in what we are doing. As Irish Water refuses to take charge of these plants, we are relying on the taxpayer, who has paid a fair penny for his or her house, to actually try to take care of them. It is not going to work into the future. It is not sustainable. We can talk all we like about the issue, but if we look at areas such as Gort in south Galway, we see complicated watercourses, underground courses and so many things going on there. It has taken four or five years to try to understand how flooding occurs, how it rises and falls and where it comes up. All of the swallow holes and sink holes have to be studied. Hopefully, we will not see a serious flood in the area before the drainage scheme is completed there.

The Government is bringing in a Bill that talks about the levels of extraction, the quality of water and registration for extraction. It plans to ram it through in a very short period of time. The legislation is fraught with risk because it will be challenged. We will have a situation where we will not know what is happening until we test it. Deputy Matthews, who is a Government Deputy, has raised a red flag on behalf of the Joint Committee of Housing, Local Government and Heritage by highlighting that the OPLA's advice has not been taken into account. He is asking for a bit of sanity with this Bill.

There seems to be a rush of blood to the head. It seems as if we want to take the EU regulations we are supposed to put in place, tick the box and say, "Here they are". I do not agree with some of the stuff in the Bill. I think it might be over-regulated. Somebody else might agree that there should be more regulations.

At this stage, however, there is too much at stake for our water quality and water supply to try to shoehorn this through the Dáil in the last couple of days coming up to Christmas. It is too serious for that. It is wrong for the people of Ireland that we would do something like that. It is time to call a halt and try to get to grips to see exactly what it means to put in all these regulations. We see what happens with planning and all the layers of bureaucracy we build in when we are doing these kinds of things. They slow down the whole process. We cannot deliver houses, health infrastructure and much of the stuff we need in this country. We must also bear in mind that we have a growing population and we must provide for them into the future. We must provide for a quality of water that can be safe. If we go back, however, we are polluting the water first and then trying to clean it. Let us forget about the levels for a minute.

The town of Craughwell on the outskirts of Galway, for example, is a growth centre for the city and it does not have a municipal wastewater treatment plant yet. Corrofin, Abbeyknockmoy and other places do not have municipal treatment plants. In every one of these places, we have rivers that are flowing and contributing to our water source to feed the water back out. We have got the thing backside over. We need to start off and say let us clean up our act and clean up the water and second, make sure whatever we do is workable and that we actually end up with the right result and we are not just satisfying an EU piece of legislation. I could go on all day but I will leave it at that. Much more time is needed for this Bill, however.

Debate adjourned.