Martin Cullen (Waterford, Fianna Fail)

I am pleased to bring the Water Services Bill 2003 before the House. I should first explain what exactly is meant by the term "water services" as it is used in the Bill. To appreciate the overall thrust of the Bill, it is helpful to visualise water services as pertaining to water in the pipe — that is, from the time, following abstraction, that it first enters a supply pipe to the point of its subsequent discharge again to the environment as treated waste water. The Bill, therefore, does not seek directly to take on board wider environmental or water resources issues, such as pollution control, water quality in its broadest sense, or river basin management. It is intended, however, that it will complement other legislation in this regard.

The primary purpose of the Bill is to set down a comprehensive modern legislative code governing functions, standards, obligations and practice concerning the planning, management and delivery of water supply and waste water collection and treatment services. To this end, it both consolidates and modernises the existing legislative code governing water services.

Publication of the Water Services Bill marked another milestone in the ongoing process of regulatory reform, which has been undertaken by the Government and in which my Department is playing a leading role. The process has already seen the planning code and the local government administrative code updated and consolidated by my Department. It is now the turn of water services.

This is the first consolidation and modernisation of water services law for over 120 years. Indeed, parts of the existing code date back over 150 years to 1847. While some of the older texts still stand as good law today, much of the language and concepts are outdated and arcane. The purpose of consolidating the legislative code is to provide an easily accessible compendium of provisions, governing all aspects of water services in a single text. Relevant provisions from some 15 enactments have been gathered together accordingly under one cover and updated as necessary to meet modern requirements. The Bill draws a line in the sand, behind which legislators, practitioners, the Judiciary or the general public need no longer search if they wish to ascertain the legal foundation for requirements on the provision of water services.

The Bill establishes the Minister for the Environment, Heritage and Local Government as the national authority for regulating the provision of water services. I envisage a hierarchical system of regulation and supervision extending from myself, through the water services authority sector and on to the group water services scheme sector where appropriate.

Section 30 sets out the functions of the Minister for this purpose. It places a duty on the Minister to facilitate the provision of safe and efficient water services and associated infrastructure. The Minister is also required to supervise and monitor the performance by water services authorities of their functions under the Act and is given responsibility for planning and supervision of investment in water services.

In order to carry out these functions, the Bill provides me with a broad range of powers, including the provision of guidance, issue of binding directions and monitoring of the performance by individual authorities of their functions, including their own supervisory functions as necessary. To assist and advise me in the performance of my functions the Bill also enables me formally to appoint consultative groups and committees. This will allow me to involve a broad cross-section of expertise and stakeholder interests in the ongoing evolution and implementation of policy and best current practice in water services.

Water services authorities are bound to comply with directions issued by me concerning the performance of their functions under the Bill. To assist me in the application of my powers in this regard, section 30(7) enables me to issue a compliance notice specifying corrective action to be taken by a water services authority.

Such notice could issue where I am satisfied that an authority is not performing one of its functions in a satisfactory manner, that it is not in compliance with a prescribed performance or quality standard or that its management or operational standards are inadequate. Provision is also included for related public notification and consultation procedures. While I regard the use of such powers as a form of last resort, they nevertheless offer a counterbalance to the more overt powers of supervision and enforcement available to water services authorities under Part 6 in the course of their supervision and licensing of the group water scheme sector. As such, their inclusion ensures equity in the treatment of all services providers under the Bill.

The main functions of water services authorities are set out in sections 31 and 32. These two sections provide the basic authority for water services authorities to deliver water services, assist others in providing water services and supervise the delivery of water services by other persons. The Minister is enabled to make regulations to specify performance criteria and quality standards which must be achieved with regard to those functions. It is envisaged that most of the EU directives concerning water services, including the drinking water directive and relevant elements of the urban waste water treatment directive, will be transposed into national law under these provisions.

Consistent with the EU drinking water directive, each water services authority is obliged to ensure that water intended for human consumption in its area meets prescribed standards and is provided with related powers to prohibit or restrict a water supply to protect public health or the environment. It is envisaged that these powers could be applied either to follow up on a water quality incident or at times of drought to protect the integrity of water supply and related eco-systems.

The Bill anticipates the ongoing involvement of public private partnerships in the provision of water services. Much of the language of the Bill is therefore couched in terms of actions being taken by a water services authority or other persons, acting jointly with it or on its behalf, in recognition of this growing operational reality.

I wish to nail on the head one erroneous view of PPPs. Neither public private partnerships nor related design-build-operate arrangements are precursors for privatisation of water services. Such partnership involves only the contracting in of private sector expertise to perform a function on behalf of a contracting authority. Assets remain fully in the ownership of the relevant authority or group water services scheme as the case may be. I regard such arrangements as the best and only way forward for development and renewal of water services infrastructure. They provide value for money, uniform application of latest specialist expertise and independent assurance that legal obligations with regard to the protection of human health and the environment are complied with in the course of the delivery of water services. To this end, all capital funding by my Department of new water supply and waste water treatment infrastructure is subject to assessment of the suitability of the project for procurement as a public private partnership.

There is nothing in the Water Services Bill which is intended to launch water services policy on a course towards privatisation. The Bill is drafted with a view to retaining the status quo and to providing the necessary supports to foster the development of current arrangements into a top class service. Privatisation of water services would require significant additional legislation to give the necessary powers to an independent regulator and is not on the agenda of this Bill. I wish to make it clear that it is not on my agenda at any stage. We have seen examples of privatisation in the area in other countries which have not delivered anything in the context of efficient and better water services. The public system we have is excellent and works extremely well.

While I am in the business of dismissing myths, I take this opportunity to refute suggestions from some quarters that this Bill either provides for or lays the groundwork for the reintroduction of domestic water charges. Such claims are without foundation. The Government's position on water charges is not changed one iota by this Bill. The Bill makes no provision whatsoever for water charges. The Local Government (Financial Provisions) Act 1997, which specifically precludes charging for domestic water services, continues to apply and is not affected by the Bill in any way. Assertions to the contrary are mischievous and serve only to distract from discussion on the true purpose and content of the Bill.

Development of a top class modern water services sector depends on having in place a strategic planning mechanism to review progress and chart the way forward. This is true for the private and public sectors alike. Strategic planning is the corner stone of all successful enterprises. It is clearly evident in the operations of many of our major companies and other public utilities and is equally relevant to water services.

Strategic planning has already been introduced on an informal basis in the rural water sector and each relevant local authority has in place a rural water plan in respect of the development of water services outside the main urban centres in its functional area. Section 36 of the Bill provides for the introduction of a similar operational planning and review cycle across rural and urban areas alike in the functional area of each water services authority.

Each water services authority is required to make a water services strategic plan for its functional area at intervals of six years, or less if necessary, and to submit it to my Department for approval. Plans will outline the situation in relation to water services in their area of application, both current and projected, and identify appropriate responses with a view to protecting human health and the environment and supporting ongoing sustainable development.

The strategic planning process will be based on a partnership between my Department and each water services authority to ensure that national and local water services agendas are fully synchronised. Such co-ordination is essential to ensure that water services plans are fully integrated into national investment planning for social and economic development. It will also ensure that plans for adjoining functional areas are properly integrated with each other, to maximise potential synergies and efficiencies and guard against any cumulative impacts which might have an adverse effect on sustainable development or environmental protection in the broader surrounding region.

Allied to planning for the provision of water services, the Bill also puts in place a framework of provisions to protect the integrity of water services distribution and collection networks. New powers in sections 55 and 61 enable a water services authority to require a developer to open up water supply pipes and drains for inspection prior to connection to its services. Water services authorities will have powers to specify technical requirements in relation to such connections and it will be an offence to make any such connection without the prior approval of the relevant water services authority.

In the same vein, the Bill also places new duty of care obligations on owners and occupiers with regard to the sustainable use of water services on their premises. Section 54 places a duty of care on owners to maintain the internal distribution systems of their premises in good repair and free from risk to human health. Water services authorities are provided with powers to direct owners to undertake remedial works, or may themselves carry out any necessary repairs and recover their costs.

Similarly, section 70 places a duty of care on occupiers and owners to ensure that waste water from their premises does not cause nuisance or risk to human health or the environment. It also prohibits discharge of anything to a sewer which would block or damage it, or adversely affect a waste water treatment process subsequently. Discharge of any polluting matter to a sewer provided solely for storm water collection is also prohibited.

Extensive new powers are also provided in section 56 for the purpose of conservation of water supplies. An authorised person is enabled to direct the owner or occupier of a premises to take corrective action to prevent water from being wasted or consumed in excessive amounts and will also have powers of direction regarding the restriction of water use. Exercise of these powers will be subject to appeal to the District Court, except in times of emergency, and the authorised person will have power to cut off or restrict supply pending compliance.

This suite of provisions on protection of the integrity of water services infrastructure is not alone essential from an environment and public health perspective, but also makes sound economic sense. Over the course of the current national development plan some €4.4 billion will be invested in the provision of water supply and waste water infrastructure. This is already producing very positive results. Unaccounted for water rates have dropped considerably, from almost 43% in Dublin to just under 29%, for example. Compliance with the 2005 target standards under the EU urban waste water treatment directive now stands at about 87%. It is vital that these new upgraded water services assets be protected in order to maximise the return on this very substantial investment and maintain the momentum of the ongoing water services investment programme. There is little point spending these vast sums without having in place adequate safeguards to ensure that the end product is not compromised.

The imposition of a duty of care on owners and occupiers is an essential prerequisite of sustainable rural development. Such provisions are a necessary precautionary measure which help to strike a sustainable balance between the potential environmental impacts of development and the social and economic benefits deriving from it. Accordingly, section 70 additionally obliges occupiers and owners to maintain septic tanks — referred to as treatment systems — in such condition as is necessary to avoid nuisance or risk to human health or the environment.

While the obligations I have just been outlining are placed by the Bill on consumers, that is not to say the Bill is in any way stacked against them. In fact, it has been drafted with a specific customer focus. Apart from a provision in section 32 which enables me to make regulations on procedures for dealing with consumer complaints, the Bill contains several new provisions to address long running problems which have been brought to the attention of my Department. Section 51 regulates the temporary interruption of water services and obliges water services providers to provide adequate advance notice of works except in the case of an emergency. Alternative supplies must be provided where domestic drinking water supplies are interrupted for more than 24 hours.

Of particular interest is the provision in section 43 which relates to the repair of the private service connections linking premises with sewers or water mains. Until now, responsibility for such repairs has rested with owners and occupiers which has resulted in particular problems and inconveniences where faults or breakage occurred outside the boundaries of premises. In the absence of clear legislative authority, sanitary authorities have experienced difficulty in providing assistance to households even where it was considered appropriate. This anomaly has been the subject of much complaint and has attracted adverse criticism from the Office of the Ombudsman. I am glad, therefore, to be in a position to provide in section 43 for a balanced package of measures to address the issue. This will enable water services authorities to intervene to repair or take into their own charge service connections where such action is considered appropriate.

It will be evident by now that the role of water services authorities under the Bill will not be solely regulatory and supervisory. The legislation also provides scope for water services authorities to take an active involvement in the development of services in their areas and to provide assistance for this purpose. The dual approach to the role of water services authorities is particularly evident in Part 6 of the Bill.

Problems with the quality of drinking water supplies have been of concern to all involved in the rural water sector for some time. A recent judgment against Ireland by the European Court of Justice for failing to implement fully the EU drinking water directive has added to the chorus of concern. My Department, in consultation with the national rural water monitoring committee, the National Federation of Group Water Schemes and relevant local authorities, has undertaken or facilitated a series of initiatives to resolve the issue. Major and record investment has been put in place under the rural water programme of the national development plan. Rural water strategic plans have been prepared for all relevant county councils. A national source-monitoring programme for schemes serving more than 50 persons has been completed and a comprehensive drinking water monitoring programme is currently underway in respect of them. While these initiatives are having a progressive, beneficial effect, it is evident that a stronger regulatory regime is required to ensure that compliance with relevant operational standards is actively enforced.

Accordingly, Part 6 of the Bill provides for the introduction of a system of licensing for the group scheme sector. Each water services authority will be the licensing authority for its functional area and it will be an offence for any person other than a water services authority to provide services other than in accordance with the terms of a water services licence. Licences will provide for the treatment standards, standards of service and monitoring and supervision arrangements necessary to ensure the provision of satisfactory water services and protect human health and the environment. It would be neither practical nor necessary to licence each of the 6,000 or so group water services schemes across the country. Many of them serve only two or three houses. To licence every one would place an inappropriate and excessive administrative burden on smaller schemes. Therefore, it is intended only to apply the licensing requirements of the Bill to the 750 or so larger schemes which serve more than 50 persons and at which the judgment of the European Court of Justice was directed. Provision is, therefore, included in section 79 to exempt smaller schemes from licensing. However, I am given complementary powers to make regulations as required to provide for alternative requirements in the registration of smaller schemes and their general compliance with specified standards.

Individual scheme management will have nothing to fear from the introduction of water services licensing. I intend that water services authorities will use their licensing powers proactively to support and nurture the development of best practice throughout the group water services scheme sector. The objective will be the progressive achievement of the necessary standards. The regime will be developmental and supportive rather than punitive. The licensing provisions of the Bill have been developed in full consultation with the National Federation of Group Water Schemes. When operational, they will provide a structured mechanism whereby each scheme can assure itself of compliance with its legal obligations.

I acknowledge the work being done to provide and bundle group water schemes. Many Members in this and the other House have seen the tremendous benefits which have accrued to local communities. These would not have been possible without the extremely hard work of the National Federation of Group Water Schemes. The federation has been fully involved in and supportive of the development of the licensing process which I am proposing in this Bill to ensure standards are put in place. I am very pleased by that and it is right that we should collectively acknowledge the excellent efforts of the federation.

Licensing is only one element of the matrix of provisions which will support the development of rural water services. Additional administrative powers are also included to enable a water services authority to intervene directly in the operation of a scheme where it considers that its expertise could be applied to the resolution of particular problems. Section 91 enables a water services authority to take over temporarily the operation and management of a waterworks or waste water works where it considers its operation could constitute a risk to public health or the environment or where a scheme experiences operational problems or is consistently in breach of a licence's provisions. Such powers, which may be exercised with or without consent, will provide for the establishment of a breathing space to allow individual schemes to continue to function as going concerns while particular problems are resolved. Water services authorities will also have powers under section 92 to facilitate the connection of individual schemes to public supply networks through neighbouring networks.

I have outlined to the House the provisions of the Bill which I consider to be key. In addition, Part 5 provides for necessary powers of access for installation, reading and maintenance of meters. It also makes provision in respect of related offences pertaining to interference with meters or fraudulent use of supplies. Part 7 of the Bill provides for general powers of acquisition for water services purposes and synchronises these functions fully with local authority powers of acquisition under the Planning and Development Act 2000. Existing powers of acquisition for water services purposes under the Public Health (Ireland) Act 1878 are, in turn, repealed. Such simplification and standardisation of procedures is a key objective of the Government's ongoing regulatory reform process.

Among the miscellaneous provisions set out in Part 8 are savers to prevent older, often obscure, pre-1922 statutes from frustrating the application of the legislation. This is a pragmatic, fail-safe device to avoid the undermining of the legislation by ancient and long-forgotten legal provisions enacted for another era but which may still, perversely, be applied, albeit against the interests of the common good, by a petitioner with a particular vested interest. A related provision in section 101 will render unenforceable any similarly old legislative provisions which could be interpreted to oblige a water services authority to provide services outside its functional area or at uneconomically low fixed prices.

I wish to record my appreciation of the valued input of the various sectoral interests which contributed to the development of this Bill. Key stakeholders, including business interests, the local authority sector, the national rural water monitoring committee, the National Federation of Group Water Schemes and other social partners, were consulted during the drafting process. They helped to ground the provisions of the Bill in a practical reality which reflects modern day operational practices and demands. A series of public discussion forums was organised throughout the country under the auspices of the National Federation of Group Water Schemes. These forums facilitated a wide-ranging exchange of views and helped to fine-tune the provisions of Part 6, in particular, to the needs of rural consumers.

I value and appreciate the involvement of everyone who has made a contribution to the Bill and I will welcome any further observations on the final text now that full details are in the public domain. While I will not necessarily be able to accommodate all views, I shall be open to consideration of amendments to improve the text of the Bill in the course of its passage through the Oireachtas. I submit the Bill for the consideration of Seanad Éireann in anticipation that its enactment will mark another milestone in the modernisation of our legislative code. As we observe the technology in the Chamber, it is interesting to reflect that when this exercise was last undertaken it was probably completed by candlelight in the course of short winter days like this and, as a Senator has commented, with a glass of port on the side. One can but wonder whether the draftsmen had any inkling of how long it would withstand the test of time and time alone will tell how long this 21st century revision will stand up. I trust that at the end of our deliberations, it will prove to be equally robust. I commend the Bill to the House.