Tuesday, 22 November 2022
Water Environment (Abstractions and Associated Impoundments) Bill 2022: Committee Stage (Resumed)
Yes. We are not opposing this section per se. We would just appreciate the Government's rationale and for the Minister of State to clarify how the agency will determine if an existing abstraction of below 25 cu. m is causing a deterioration if it is not registered. We have already said the thresholds are a departure from the trends across Europe and in the North and we are diverging somewhat from those. We are expressing our concerns in respect of the appropriateness of the thresholds and asking the Minister of State to clarify his position in order that the record will show it for evermore. My understanding was that the Minister of State had to leave and that the discussion was left there.
We can let everyone in and then the Minister of State, Deputy Noonan, can respond. Before I call Senator Boylan, I welcome, all the way from County Clare, Councillor Pat Hayes. Mr. Hayes is a guest of Senator Dooley. The councillor and his colleagues from County Clare are welcome. We are discussing the water environment, which is an issue that comes up at every council. I thank Councillor Hayes and his wife, Anne, for their hospitality any time I go to Clare. I always get céad míle fáilte. I thank them for being here.
I welcome the Minister of State. On the previous occasion, we left the debate at the point where we asked the Minister of State, Deputy Peter Burke, to clearly set out the rationale for the thresholds. A number of us had amendments relating to this matter ruled out of order and we made the point that we are completely out of kilter with our nearest neighbour in the North and with Scotland and Wales, countries that have similar hydrological profiles and water tables. We wanted to clearly hear, for the public record, reassurances as to why we are deciding to go for these thresholds, which, as I said, are out of kilter with those in countries that have similar levels of rainfall. That is where we left matters and that is why we asked for the Minister of State, Deputy Peter Burke, to come in and clarify the point.
My amendment was one of those ruled out of order. The Minister of State, Deputy Peter Burke, explained his position. However, it is a position that I would not agree with. As a result, my request was that the Minister of State and the officials take a look at this level and see if 25 cu. m is too high, given that 10 cu. m is the level that is used in Northern Ireland, Scotland and Wales, which would have similar topography. We clearly have an issue with abstractions so my request was for the Minister of State to see if something could be done on Report Stage by the Government. I was asked by the chair of the Committee on Housing, Local Government and Heritage, Deputy Matthews, to raise this issue. I know he will bring it up at that committee and on Committee Stage in the Dáil as well. I wanted to make sure that was put on the record. To be fair, the Minister of State, Deputy Peter Burke, came back in, but it was not exactly what we wanted to hear, and that is the point.
This section is about the cumulative effects of smaller abstractions and the threshold that the Senators mentioned. This would be captured as part of the regular water framework directive monitoring, with sophisticated flow modelling and field investigations by local authorities' water programmes. The registration threshold is sufficient to capture over 99% of the volume of water abstracted in Ireland, thereby minimising value risks from over-abstraction. As I understand it, Deputy Matthews is going to raise this matter separately at the Committee on Housing, Local Government and Heritage. That is a good place to discuss the matter further.
I move amendment No. 8:
In page 17, between lines 2 and 3, to insert the following: “(i) such abstraction that may be required on animal welfare grounds.”.
I welcome the Minister of State, Deputy Noonan, who is picking up on behalf of the Minister of State, Deputy Peter Burke. I wish the Minister of State, Deputy Peter Burke, well. I will set the scene as the Minister of State, Deputy Noonan, is new to the brief for this section of the Bill. I undertook to table nine amendments on behalf of the Irish Farmers Association, IFA. These amendments were not written by me; they were written by the IFA. I know the IFA relies on its own research, but it also has its own bureau which advises it well. I add that none of these amendments have been ruled out of order, which is an interesting point. I am a member of the Oireachtas Joint Committee on Agriculture, Food and Marine and am also a member of the Oireachtas Joint Committee on Housing, Local Government and Heritage, as I was reminded. However, I did not need to be reminded; I believe I made that remark in my opening comments before anyone else spoke.
There is always a challenge during pre-legislative scrutiny. While it is very informative and important, it is not where the legislation is made. I am usually a great advocate of taking as much detail as possible from the pre-legislative scrutiny into the legislative process. However, I have considered these amendments and I believe in bringing different ideas, perspectives and opinions to the table and at least discussing them and teasing them out.
The Bill was initiated in the Seanad and will subsequently go to the Dáil, which has a bigger political scope and bigger political groupings allowing it to tease it out in more detail. The Dáil may change many of the things that we may or may not decide to do in this House.
I want to set out the rationale for the amendment. The IFA has requested that the paragraph be included on account of animal welfare. The current legislation does not allow for an exemption on these grounds. Besides water availability, the quality of water has a direct impact on the welfare of animals. Therefore, livestock need to drink more water under heat stress and when forage conditions are poor. Overall, the IFA believes we need to do more to ensure the animal welfare can be protected in order that we can provide the highest quality produce to Irish customers and our trading partners. That is the rationale for this amendment. I could go on at great length but it is not my intention. I want this to be a meaningful engagement. I look forward to hearing the Minister of State's response.
The suggested amendment would only relate to a temporary measure to alleviate acute animal welfare concerns. A permanent and foreseen abstraction for the purposes of animal welfare concerns, which is above the registration threshold, should be placed on the register.
The amendment is not accepted as section 9(3)(b) of the Bill provides for an exemption for temporary abstraction to facilitate the carrying out of works. These works are not specified and could be interpreted to include the provision of temporary drinking water troughs for animals.
Who is to decide what the animal welfare grounds are? That is the tricky part. Any abstraction over 10 cu. m should be registered so that we know what it is. Part of this is a fact-finding mission and at times when there is an issue with water levels, it enables us to get back to everybody on the register. I do not see anything here that would interfere with animal health and welfare at all. In fact, it would have the opposite effect and allow us to manage our water better. I again note that the recommendation from the Oireachtas Joint Committee on Housing, Local Government and Heritage, which Senator Boyhan mentioned, is for that lower level of registration for water abstraction.
I note that the Minister of State did not mention welfare in his response. That is the rationale for it; that is the request from the IFA. I am the conduit for that organisation in this case. I am happy to stand over that proposal and that amendment. I will leave it at that.
Before I put the question, I welcome members of the Bellewstown Race Committee. I believe Jim Corcoran is retiring after 17 years as chair. No one serves 17 years as Chair of this House. He is doing much better than most of the Senators here. I thank him for all he did for the race committee over those 17 years. I thank Senator Keogan for bringing it to our attention. I hope they enjoy their time in Leinster House.
Our rationale for opposing the section is to give the Minister of State an opportunity to respond. We want him to stipulate what exceptions will apply, for whom they will apply and the rationale for those exemptions. Will it be anybody who is currently abstracting water? How will they be taken into consideration? What mechanism will be put in place? We are opposing the section in order to give the Minister of State an opportunity to allay concerns about what the exemptions will include and how they will be decided.
Section 9, dealing with exemptions is included to ensure that where such exemptions are appropriate and allowed for under the water framework directive, they can be exercised if necessary.
The scope of the exemptions that would potentially be permitted by regulations made under this section is strictly limited and these activities are listed in section 9. No specific organisations are deemed exempt from any requirements. The broad criteria or matters to which the Minister must have regard when making regulations to allow for exemptions are listed in the section and include: the environmental objectives of the water body concerned, and the requirements of the birds, habitats and environmental impact assessment, EIA, directives. The Minister will be required to consult with and consider the opinion of the Environmental Protection Agency, EPA, when making any regulations under this section.
I move amendment No. 9:
In page 19, between lines 2 and 3, to insert the following: “(5) The information required under subsection (4)should be confidential to the Agency and not published.”.
The amendment speaks for itself. I look forward to hearing the Minister of State's response.
This amendment is not accepted as the Environmental Protection Agency will be subject to data protection law - the Data Protection Acts 1998 to 2018, the Data Sharing and Governance Act 2019 and the general data protection regulation, GDPR. Only the appropriate non-personal information relating to the abstraction will ever be published by the agency. This is similar to what the EPA does with the septic tank register, for instance.
I thank the Minister of State and I note his response. One of the great things about these amendments is that it allows us to put a case, in this case coming from the IFA, and allows us to hear a response, which is an interesting response.
I reiterate what I said the last time. I object to these amendments being ruled out of order.They are similar to my amendment, which was ruled out of order. I have written to the Committee on Parliamentary Privileges and Oversight about my concerns in this regard.
I wish to discuss this section's rationale. The IFA believes that section 17 should be deleted because it provides far too many powers to the agency to override the legislation. I share the IFA's concerns, but I look forward to hearing the Minister of State's response.
This section enables public authorities, including local authorities, to submit an opinion to the EPA that the abstraction would be better regulated by the EPA despite it otherwise falling under local authorities' responsibility. It is an added element to ensure that abstractions that are identified as posing a risk to the relevant water bodies are properly controlled. Removing this section would weaken the EPA's capacity to ensure that appropriate regulation and protection of the environment is in place. Therefore, I cannot accept its removal.
I move amendment No. 11:
In page 35, between lines 16 and 17, to insert the following: “(viii) any additional information specified in Annex IV of Directive No. 2011/92/EU relevant to the specific characteristics of the abstraction (a particular project or type of project) and to the environmental features likely to be affected,”.
This comes on the back of concerns raised by An Taisce, which noted that the definitions of the terms in section 14 contain omissions. For example, section 5(3) of the amended annex IV to the EIA directive does not seem to be included. This is the section that refers to the accumulation of effects with other existing and-or approved projects, taking into account existing environmental problems relating to areas of particular environmental importance likely to be affected or the use of natural resources. Why is there no explicit reference in section 23 to the need to include all of the relevant information outlined in annex IV of the EIA directive? Why has there been a picking and choosing of which parts of annex IV get listed in section 23 instead of including all of the relevant information?
Section 23(2)(b)(v) provides for the information included in annex IV of the EIA directive by reference to the transposing legislation, namely, the 2001 planning and development regulations. Where any change is made to the EIA directive requirements, the 2001 regulations will also be updated so that the reference in the Bill remains valid and up to date. The Department is satisfied that all relevant aspects of the EIA directive are addressed in the Bill. I will not accept the amendment.
This amendment ensures that the agency has discretion in granting a licence to abstractors who have come to its attention for breaches of a licence where the agency, in its expert opinion, believes that such breaches do not warrant outright refusal of a future licence. In some cases, these breaches will be minor and amenable to simple rectification through the standard enforcement actions. It should be noted that this will include large bodies, in particular Irish Water, which, by the nature of its work as well as the scale and scope of that work, has breached the conditions of its existing licences, such as the wastewater discharge licences. These breaches will have been met with enforcement action from the EPA and should not preclude Irish Water from holding another licence or authorisation in all cases.
These insertions correct a drafting omission that, if uncorrected, would result in instances where an impoundment that was not previously subject to a joint licence was omitted from the requirements of the subsection. This insertion is required to ensure the protection of the environment as well as the conditions of existing licences reliant on a given associated impoundment.
Subsection (5) requires that, in cases where the impoundment being relied on for the purpose of a joint licence is the subject of an existing licence, the new joint licence will not alter the impoundment in a way that could cause a water body to fail to meet its environmental objectives or affect the continued operation of the impoundment as it relates to the existing licence. In other words, the conditions of a new joint licence cannot result in a contravention of the conditions of an existing licence.
With these amendments included, the requirements under this section that relate to a joint licence for abstraction and associated impoundment will apply regardless of whether the associated impoundment was previously subject to another joint licence.
I move amendment No. 15:
In page 70, to delete lines 37 and 38.
I will focus the first part of my contribution on amendment No. 15, which is important. I wish to flag to Senators who might be listening that I will be calling a vote on this matter.
The IFA states that subparagraphs (a) to (e), inclusive, undermine the legal rights of farmers and could have a negative effect on land and property values.Section 61(2)(d) and (e) are problematic in terms of the powers they give Irish Water, and they should therefore be deleted. Reservoirs of water on farms often serve a specific purpose. Irish farmers should be free to determine what they want to do on their property. We should remember we have constitutional rights to private property. At a minimum, Irish Water should be required to seek permission from the farmers or the landowners. That is important. I accept the purpose of the water reservoir on the farm also needs to be accounted for before any auxiliary work can be done on the farm or the water courses on that farm. If there are possible workarounds that would not cause disruption to farmers, they should be explored. It is critically important for a number of reasons. I have taken advice on it and I have met with a number of people who have sought legal opinion on the matter. I believe it will become contentious in the future, so it is only right and proper we indicate that here and now. This is a very important amendment. I await the Minister of State's response.
The powers in section 61(2)(d) and (e) are based on section 13 of the Water Supplies Act 1942 and must be retained in their full form in this Bill to allow for the 1942 Act to be repealed. Furthermore, the exercise of these powers is subject to an objections procedure provided for in sections 64 to 68, inclusive, and the compensation provisions in sections 69, 72 and 82. The objections procedure will allow any person to challenge the powers of Irish Water to exercise its right to carry out a public abstraction. On these grounds, I cannot accept the amendment.
With all due respect to the Minister of State, his response is a little vague. I know the response is not the Minister of State's personal response, but it has been prepared by his advisers. I have seen contrary advice relating to the challenges which suggests there are going to be problems. I take on board what the Minister of State has said. Amendments Nos. 15 and 16 have been grouped together, so I will speak on them here and now. The same rationale applies to both amendments. I will leave it at that.
Niall Blaney, Lynn Boylan, Maria Byrne, Micheál Carrigy, Pat Casey, Martin Conway, Ollie Crowe, John Cummins, Emer Currie, Paul Daly, Aidan Davitt, Aisling Dolan, Timmy Dooley, Mary Fitzpatrick, Robbie Gallagher, Paul Gavan, Pippa Hackett, Rebecca Moynihan, Pauline O'Reilly, Ned O'Sullivan, Mary Seery Kearney, Barry Ward, Fintan Warfield.
I move amendment No. 17:
In page 77, to delete lines 7 and 8 and substitute the following: “(2) Subject to subsection (3), a claim under subsection (1)shall be made within six years from the date of the commencement of the carrying out of the public abstraction.”.
I will just listen to the Minister of State's response.
A timeframe of 52 weeks is included in the Bill to ensure that all claims are submitted and dealt with in an appropriate timeframe. Any claim for compensation under this section can be made only after the abstraction has commenced. Any person who believes he or she may be entitled to compensation has the duration of the licence application process, plus the additional 52 weeks provided in section 69, to determine if there has been a material impact on their rights, title or interests in respect of water. This is considered ample time to determine if there has been a material impact and the scale of that impact. Subsection 69(3) also allows for potential extension of this period on application to the High Court where there is good and sufficient reason for doing so and the circumstances that resulted in the failure to bring the claim within 52 weeks were beyond the person's control. These compensation provisions are considered both comprehensive and fair and, in that regard, this amendment is not accepted.
I move amendment No. 18:
In page 78, between lines 13 and 14, to insert the following: “(5) The Minister shall within 12 months of passing this act produce a report detailing how a national compensation claims protocols could be developed which equitably resolves concerns regarding property loses and/or disruption to farm businesses arising where abstraction are imposed.”.
While this legislation allows farmers to seek compensation, it would require protracted arbitration and potential challenges in the courts. I touched on that earlier. The 52-week period needs to be changed and should be aligned to the Statute of Limitations for six years. Failure to ensure that it aligns with the Statute of Limitations means that a person may not be able to seek full compensation. It is also possible that any environmental damage may not be apparent for months or even years. In short, six months is too short a timeframe to receive a satisfactory compensation package.
The provisions of the Bill are considered sufficient to provide for adequate compensation relating to any material impact arising from public abstractions, both permanent and temporary. There is no need for the development of a national compensation claims protocol related to material impacts arising from public abstractions. During the development of the Bill, due consideration was given to all potential compensation claims that could arise as a result of abstractions undertaken in accordance with this legislation. I am confident that the provisions in the Bill are more than suitable for any circumstance related to abstractions. In that regard I do not accept the amendment.
I concur with what the Minister of State has said but I assume that we could keep this under consideration and that if such an issue were to arise in the future, we could look at amending, if necessary, our regulations in this area to put people at ease. The concerns Senator Boyhan has expressed are, I am sure, felt by others. If we could at least indicate that if such issues were to arise in the future, we would look at that them at that stage, that would be helpful.
I note what Senator Cummins said and I thank him for that. What he said is reasonable but applies to any legislation.
In response to the Minister, he said the suggestion is beyond the scope of the Bill, but we can bring such things into the Bill. This is the legislative process and the teasing out of it. That is why this amendment has been proposed. There has been adequate notice. I submitted these amendments weeks ago, way before the deadline. I was aware that these amendments were coming for a very long time - as a matter of fact, way before the Bills Office contacted me to say it did not even have a date set for these amendments. I had them lodged because we were aware what was happening and we had long discussions with the IFA about them.
I take on board the Minister of State's response but I will press the amendment.
This amendment is included to enable the Minister to contact directly persons who may be affected by an order exempting Irish Water from the requirements of all or any provision of Part 5 owing to a civil emergency under the EIA directive. When making an application for such an exemption under section 80, Irish Water will be required to furnish the Minister with the contact details of owners or occupiers of affected land and persons whose rights may be affected in respect of the water to which the proposed abstraction relates. This will allow the Minister to directly notify those persons of the order once made at the same time as notifying Irish Water and the agency. Where the Minister declines to make an order declaring a civil emergency, Irish Water will be required to submit a proposal to carry out a temporary abstraction under section 75 and affected persons will be able to appeal against that proposal under section 81.
This amendment has been drafted to bring clarity to the provisions of section 83 relating to abstractions by Irish Water from reservoirs of the ESB. It ensures that the ESB shall not be held liable for the effects of an abstraction that it has permitted from one of its reservoirs but that it is not undertaking itself.
The amendments will correct clerical inaccuracies in the text. Regarding amendment No. 22 and section 96(1)(c), "exercise all or any of the powers" is the correct phrase given section 95, the section referenced, provides for the powers of authorised persons rather than their functions.
Amendment No. 23, to the chapeau of section 96(2), will correct a clerical error whereby reference should be to the exercise of the powers of the authorised person in general under Part 9 regarding enforcement, rather than specifically to those powers included in section 96. The purpose of the subsection is to allow an authorised person to apply to the District Court for a warrant to enter premises in the specific circumstances provided for in this section.
Amendment No. 24 will correct a clerical inaccuracy, given the definition of "premises" under this Part already includes reference to land. For this reason, the words "land or" can be deleted from this subsection.