Tony Killeen (Clare, Fianna Fail)

The Foreshore and Dumping at Sea (Amendment) Bill 2009 will transfer certain foreshore functions from the Department of Agriculture, Fisheries and Food to the Department of the Environment, Heritage and Local Government. In addition, it will transfer responsibility for the Dumping at Sea Acts to the Environmental Protection Agency. Other than the transfer of functions and the modernisation of certain phrases and references, the Bill makes no significant amendments to these Acts.

When forming the Government in 2007, it was decided to transfer certain coastal functions from the Department of Communications, Marine and Natural Resources to the Department of the Environment, Heritage and Local Government. The marine functions and staff of the Department of Communications, Marine and Natural Resources transferred directly to the Department of Agriculture, Fisheries and Food. At the time the Attorney General advised that primary legislation would be required to effect the transfer of the foreshore functions. That is the basis on which the Bill is presented.

The foreshore consists of the land from the high water mark to the 12 nautical mile limit and comprises roughly 57% of the land area of the Twenty-six Counties. In recent years the size, scale and complexity of projects developed on the foreshore have changed considerably. At one time foreshore consents covered primarily small piers and jetties but more recently an increasing number concern major State and private sector infrastructural projects such as municipal wastewater treatment plants, large commercial harbour developments, gas pipelines and large-scale offshore wind, wave and tidal energy projects. In dealing with such scale and complexity it is vital that the development of these large projects accord with the development plans for the functional areas of the local authorities to which they are contiguous.

Land based and offshore developments in the coastal zone impact on each other in significant ways notwithstanding the different environmental conditions in each zone. Balancing the impact of a development on another zone is a major component of the impact assessment of such projects. At a higher level it is also essential to align and integrate the strategic development plans for both zones. The integration of developments in the coastal zone has been an issue throughout Europe, leading the European Commission to issue recommendations in this regard. In all countries the integration of the onshore and offshore development process has proven difficult.

With the integration of onshore and offshore developments foremost in mind, the Government decided on the transfer of certain marine functions from my Department to the Department of the Environment, Heritage and Local Government. This will allow for the development of a framework approach to planning in the coastal zone which seeks to integrate and balance the various planning and development requirements on either side of the high water mark. In deciding the transfer of these functions the Government is guided by the primary function of the Department of the Environment, Heritage and Local Government which is pursuing sustainable development. The modernisation of the development consent process can best be served by aligning the onshore and offshore consent processes within a single Department, particularly given the nature and scale of recent infrastructural project applications.

At the same time, the support of aquaculture and sea fishing related projects needs to be secured, given the often isolated locations of the coastal communities which these industries support. The grant of a foreshore licence for an aquaculture project is currently an outcome of detailed consideration of the aquaculture licence application which must be accompanied by an environmental impact statement. It would be inappropriate and inefficient if two Departments were required to license the same aquaculture installation based on the same environmental impact statement. For this reason, the assessment of foreshore consents for projects which are for the support of sea fishing or aquaculture will remain in the fisheries division of the Department of Agriculture, Fisheries and Food.

The transfer of the foreshore functions to the Department of the Environment, Heritage and Local Government has been the subject of ongoing discussion and planning between officials from both Departments. The transfer of the relevant functions has been dealt with in two phases. The first phase did not require legislative change and took place in November 2008 when the shellfish waters directive and integrated coastal zone management functions transferred to the Department of the Environment, Heritage and Local Government. This Bill will complete the second - legislative - phase of the transfer process.

Certain sections of the Foreshore Act 1933 concern the overall management of the coastal zone rather than the licensing of developments on the foreshore. For example, section 6 of the Foreshore Act 1933 provides the means to prohibit the removal of beach material, while section 11 of that Act provides for the removal of dilapidated structures. In order to provide for the coherent management of the coastal zone under one administration, these and other coastal management functions are being transferred in full to the Minister for the Environment, Heritage and Local Government. In addition to transferring the relevant functions, the Bill contains a number of necessary amendments to support and manage the transfer of functions between the Ministers. In drafting the Bill an opportunity was taken to update and modernise the terminology and references in the Foreshore Act 1933.

Section 4 provides the mechanism, whereby the functions transferred by the Bill may be recombined under a single Minister at any point in the future. This section provides for the functions to be recombined by means of an order under the Ministers and Secretaries (Amendment) Act 1939. This would obviate the need for primary legislation to recombine the functions. Section 5 of the Bill contains amendments and additions to the definitions in the Foreshore Act 1933. These are necessary to give clarity to the respective areas of responsibility of the Ministers concerned.

The primary mechanism in the Foreshore and Dumping at Sea (Amendment) Bill to give effect to the transfer of the functions concerned is contained in section 6. This section defines the type of foreshore consents to be considered by each Minister. Where a foreshore application concerns a development which is for the support or development of sea fishing, aquaculture or a development in a fishery harbour centre, the Minister for Agriculture, Fisheries and Food will consider it. In all other cases the Minister for the Environment, Heritage and Local Government will consider applications. Throughout the Bill there are references to the "appropriate Minister". In each section the appropriate Minister is determined by reference to section 6.

Sections 7 and 8 provide for a consultation mechanism between the two Ministers. In addition, the annual payment limit at which each Minister may agree a licence or lease without reference to the Department of Finance has been increased from the £10 stated in the Foreshore Act 1933 to £50,000, or €63,250. This reflects the administrative arrangements in place between the Department of Finance and the Department of Agriculture, Fisheries and Food. Section 9 modernises the reference to the Judiciary in the Act. Section 10 is an amendment to the environmental impact assessment legislation, as a consequence of the meaning assigned to "appropriate Minister" in section 6. Section 11 deletes from the 1933 Act a reference to the Irish Land Commission as that body is no longer in existence.

Section 12 provides a mechanism for the Minister for the Environment, Heritage and Local Government to make regulations to specify bodies and timeframes for consultation where he or she is considering a foreshore consent. This reflects the existing practice in the foreshore application process, whereby a wide range of bodies are consulted before consent is granted or refused.

Sections 13 to 15, inclusive, are amendments to the foreshore public participation regulations. This is as a consequence of the meaning assigned to "appropriate Minister" in section 6. Section 16 updates the reference to local authority in the Act in line with recent legislation.

Sections 17 to 19, inclusive, give the Minister for the Environment, Heritage and Local Government the ministerial role of applying to the courts for prohibitory orders for the protection of the foreshore and adjacent seashore and the prosecution of offences. Sections 20 and 21 are consequential amendments to the Fisheries Acts as a consequence of the meaning assigned to "appropriate Minister" in section 6. Sections 22 to 27, inclusive, are transitional measures to provide for the transfer of the ongoing work between the Departments which have been working together on the drafting of the Bill and the administrative arrangements necessary for the ongoing support of the functions transferring. Agreement has been reached between my Department and the Department of the Environment, Heritage and Local Government on the reallocation of the necessary staff and resources for the functions being transferred. The officials in each Department are committed to working together to ensure the continuity of service and to develop a modern framework for managing the foreshore functions. The two Departments will work together through an interdepartmental committee to ensure the effectiveness of the measures implemented in the Bill.

It is intended to develop a new framework for the management of the coastal zone which will provide a modern, effective and integrated legal framework for the management of the State's foreshore estate. Such a framework will take account, inter alia, of the public participation directive, the principles in the EU recommendation on integrated coastal zone management, the outcome of the EU maritime Green Paper, the marine strategy directive and the EU roadmap on maritime spatial planning. These matters are under active consideration by the marine co-ordination group.

At the request of the Department of the Environment, Heritage and Local Government, the administration of the Dumping at Sea Acts will transfer to the Environmental Protection Agency. Part 3 of the Bill provides for this transfer. The Dumping at Sea Acts ban incineration at sea, the dumping of radioactive waste and offshore installations and all toxic, harmful and noxious substances up to 350 miles offshore to coincide with Ireland's portion of the Continental Shelf. The Acts enable the Minister for Agriculture, Fisheries and Food to grant permits for certain dumping, as specified in the permits and subject to such conditions as the Minister may specify. They also empower the courts to impose such monetary penalties and-or imprisonment for a term not exceeding five years as they may decide on conviction on indictment of any person for illegal dumping as defined by the Acts.

All applications for dumping at sea permits are carefully considered by the Department with the assistance of specialist advisers from the marine licence vetting committee which meets frequently as business demands. Detailed guidelines have been published by the Department to assist applicants. Copies of the guidelines are available in the Oireachtas Library and on the Department's website. Applicants are obliged to consider thoroughly all non-dumping at sea options and, in particular, other beneficial uses such as beach nourishment and land reclamation. Non-dumping solutions have been successfully pursued in a number of cases and are addressed in the context of five year dredging plans by ports and other harbours in agreement with the Department. Material for dumping at sea is thoroughly assessed prior to dumping. Approximately 12 dumping at sea permits are granted each year.

The type of material which may be disposed of at sea is governed by the international OSPAR agreement, titled "Protection of the Marine Environment of the North East Atlantic done at Paris on the 22nd Day of September 1992". Dumping at sea permits are granted exclusively for the dumping of dredge spoil at a specified site. Generally, this is as a result of port and harbour dredging which is carried out for maintenance and development purposes. Details of the permits granted are published in Iris Oifigiúil on an annual basis and kept in a public register in the Department as required under the 1996 Act. Details of these permits are also published on the Department's website on an ongoing basis.

The Environmental Protection Agency is the primary caretaker of the environment in the State. The key role for the agency in licensing the disposal of waste is managing the impact of the waste on the environment. Waste licensing involves the control of large-scale waste and industrial activities to ensure that they do not endanger human health or harm the environment. In addition, the Environmental Protection Agency has the lead role in managing water quality in the State.

The EPA, in conjunction with the Department of the Environment, Heritage and Local Government, is responsible for the implementation of the European Union water framework directive. The directive is important EU environmental legislation which aims to improve our water environment. It requires governments to take a new holistic approach to managing their waters and applies to rivers, lakes, groundwater, estuaries and coastal waters.

The transfer of the administration of the Dumping at Sea Acts from the Department to the Environmental Protection Agency will provide the agency with the opportunity to fully integrate the disposal of dredge spoil at sea with its current waste management licensing system and will assist in the delivery of the water framework directive project. Part 3 provides for the transfer of the dumping at sea function from the Department of Agriculture, Fisheries and Food to the Environmental Protection Agency. A number of minor consequential amendments are necessary because of the transfer of the functions to the agency. In addition the opportunity has been taken to revise the powers of authorised officers in line with the powers of authorised officers in other, more recent legislation.

Section 29 transfers responsibility for dumping at sea to the Environmental Protection Agency and vests the functions in the agency. Section 32 amends section 4 of the Dumping at Sea Act 1996 to provide that the Radiological Protection Institute of Ireland rather the Minister will prescribe radioactive substances or material as below low level. The Radiological Protection Institute of Ireland must consult the Environmental Protection Agency before so prescribing and the Environmental Protection Agency must give notice of the prescribing by having a notice published in the Iris Oifigiúil. As a transitional measure, the existing low level standing prescribed for radioactive substances or material will remain in force.

Section 33 provides for the substitution of the Environmental Protection Agency for the Minister, as appropriate, in various instances throughout section 5 of the Dumping at Sea Act 1996. It also provides for the addition of the Minister for Agriculture, Fisheries and Food to the list of Ministers who must be consulted on an application for a permit to dump at sea.

Section 34 contains amendments to section 6 of the 1996 Act to update the powers of authorised officers to accord with current legislative best practice and take account of technological advances in methods of record keeping, for example, electronic data recorders, digital photographs and such like.

Section 35 enacts Schedule 2 of the Bill. Schedule 2 lists by section the Dumping at Sea Act 1996 where the Environmental Protection Agency is substituted for the Minister for Agriculture, Fisheries and Food and the Minister for the Environment, Heritage and Local Government and a Minister of the Government are substituted as specified in that Schedule.

Section 36 contains an amendment to section 7 of the Dumping at Sea Act 1996 to enable the Environmental Protection Agency to bring summary proceedings in respect of offences under that Act. Section 37 repeals section 13 of the 1996 Act which provided for the payment to the Exchequer of fees collected under the Act. The effect of this repeal is that these fees may now be retained by the EPA.

Section 38 contains transitional measures for dumping at sea permit applications which have not been determined by the Minister for Agriculture, Fisheries and Food and for permits granted by that Minister and in force before the commencement of EPA involvement. Undetermined permit applications will be treated as applications to the agency and permits already granted and in force can be dealt with by the agency as if they had been issued by it. This section also provides for the continuance of existing authorised officers, post-enactment, and the substitution of the agency for the Minister in any pending legal proceedings.

The function of the Foreshore and Dumping at Sea (Amendment) Bill is to transfer specific foreshore functions from this Department to the Department of the Environment, Heritage and Local Government and transfer the dumping at sea functions to the Environmental Protection Agency.

The Bill will assign responsibility for foreshore licensing for commercial and infrastructural projects together with certain coastal zone management functions to the Department of the Environment, Heritage and Local Government. This will commence the process of aligning marine spatial planning with the onshore spatial planning system. In addition, responsibility for the Dumping at Sea Acts 1996 to 2006 is allocated to the Environmental Protection Agency which, in conjunction with measures implementing the water framework directive, will provide greater coherency in the sustainable management of water quality in the coastal zone.

The provisions of the Bill are intended solely to give effect to the allocation of specific foreshore functions to the Department of the Environment, Heritage and Local Government and the transfer of functions under the Dumping at Sea Acts to the Environmental Protection Agency. I commend the Bill to the House.