Denis O'Donovan (Fianna Fail)

I do not know as much about County Cavan and its by-laws as Senator Wilson does, but it does sound peculiar that in this relatively recent decision of the European Court of Justice, Cavan was found not to be in breach of the directive. Europe has given a gold star to Cavan for implementing its by-laws in 1994. I envy the council and its public representatives for going down that road then. Obviously, other councils should have done so.

The kernel of this issue is which particular guidelines will be followed in the legislation. Three sets of criteria can be applied to this Bill, the EPA guidelines from 2009 and 2004 and the Cavan County Council by-laws. If the latter is a good benchmark for implementing the directive, why then in these difficult times should the Department go the extra mile to be best boys in the class rather than comply with the Cavan guidelines from 15 years ago?

My main concern is we are somewhat in the dark as to which criteria will apply with this legislation. The information I received from the EPA is that it will insist on the most modern, technical and up-to-date criteria available to it. These will be far more stringent than the ones used successfully in Cavan. They will also mean costly upgrades of septic tanks and wastewater systems for property owners.

The criteria to be used must be declared now. The criteria successfully used in Cavan, which comply with the EU directive, are a good benchmark and should be adopted by other local authorities. Under the Minister's proposals, maximum fines stand at €5,000 whereas under the Cavan by-laws, the maximum fine is €2,500. If the EPA criteria are used - I fear they will be - then the bar will have been raised for over 400,000 septic tank owners and will be much higher than the one contained in the Cavan County Council by-laws. It would be refreshing if the Minister declared his hand now and confirmed the 2009 EPA guidelines will be the template for this legislation. The most recent EPA guidelines will be the template for the new proposals. If that is the case, the bar will be considerably higher. People are worried about how much this will cost and where the tanks will go, etc. It is a valid argument. Perhaps it is correct to go down that road and use the most efficient and up to date guidelines.

Cavan County Council was given a clean bill of health under the EU directive. Where do the remaining 25 counties stand? Have their local authorities been neglectful in not going down the same road as Cavan County Council? If so, why did they not do so? I recall attending a meeting of county managers where progress was discussed. Why did the other local authorities not follow what was done in County Cavan? At the time, it was a brave move. Several hundred beautiful lakes in Cavan were polluted and there was deep concern about damage to fish stocks and so on. The local authority was steered to take action to protect the environment, which it did successfully. Perhaps it is not appropriate to the amendment but why did the other local authorities not follow the lead of Cavan County Council? It is not fair to say successive Governments neglected to force them to do so. Councils can be proactive sometimes.

Putting on my legal hat, local authorities will not be exempt from blame when the mud hits the fan down the road. When reality has to be faced, some local authorities will have questions to answer because if they granted planning permission ten, 15 or 20 years ago and said the septic tank and the percolation system on the site were appropriate and met proper standards, they cannot come along and say the legislation has changed and the system has to be upgraded. Local authorities are not exempt and if they are in difficulty, that will rebound on the Department. That is why the Minister should reflect on where this will lead down the road because each householder has constitutional rights. This is another diminution of rights. Under the Constitution, landowners have immense powers to protect their property. This rolls further in more ways than one and I will revisit this later.

I have raised a number of issues. Senators Wilson and Ó Domhnaill have put their case on the amendment better than I have but there are questions about where we go and what guidelines should be followed in future.