I move: "That the Bill be now read a Second Time."
The purpose of the Foreshore and Dumping at Sea (Amendment) Bill is to transfer certain foreshore functions from the Department of Agriculture, Fisheries and Food to the Department of the Environment, Heritage and Local Government. The Bill will transfer responsibility for the Dumping at Sea Acts to the Environmental Protection Agency. Other than the transfer of functions, there are no significant amendments to the Acts encompassed by this Bill, save for the modernisation of certain phrases and references.
When forming the Government in 2007, it was decided to transfer certain coastal functions from the then Department of Communications, Marine and Natural Resources to the Department of the Environment, Heritage and Local Government. The marine functions and staff from the Department of Communications, Marine and Natural Resources were 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 onward transfer of the foreshore functions to the Department of the Environment, Heritage and Local Government. This is the basis on which this Bill is now 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 26 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. However, in recent years, applications received concern major State and private sector infrastructure projects, such as municipal waste water treatment plants, large commercial harbour developments, gas pipelines and large-scale offshore wind, wave and tidal energy projects.
To deal with this increasing 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. Both land-based and offshore developments in the coastal zone impact upon each other in very significant ways despite the different environmental conditions in each zone. Balancing the impact of a development in one zone with that in the other zone is a major component of the impact assessment of such projects. At a higher level, is it also essential to align and integrate the strategic development plans for both zones.
The effects of developments, one on another, in the coastal zone have been a major challenge for national Governments throughout Europe, leading the European Commission to issue recommendations in this regard. In all countries, this integration of the onshore and offshore development process has proven quite 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 will seek to integrate and balance the various planning and development requirements on either side of the high water mark.
Consolidation and streamlining of the Foreshore Acts have been under consideration for some time. This process is intended to provide a modern, effective and integrated legal framework for the management of the State's foreshore estate in the future. However, such modernisation is not the purpose of this Bill, which simply transfers certain functions from the Department to the Department of the Environment, Heritage and Local Government. This transfer will pave the way for such modernisation.
The modernisation of the foreshore legislation will require extensive consultation with stakeholders and the public by way of a strategic environmental assessment. The Department of the Environment, Heritage and Local Government has indicated to the Oireachtas Joint Committee on Climate Change and Energy Security that, on receipt of the foreshore functions, it is intended to review the Foreshore Acts. I will be happy to appear before that committee in 2010 to give an update on developments.
While it is acknowledged that some elements of the Foreshore Acts require modernisation, it is important to realise that in regard to large projects, the assessment of environmental impact statements and the public participation and consultation elements are fully up to date and in accordance with all environmental directives. Regulations in respect of the Foreshore Acts have been implemented under the European Communities Acts dealing with the environmental impact assessment directive, the public access to environmental information directive and the public participation in decision-making and access to justice in environmental matters directive. Therefore, the Foreshore Acts are in compliance with the Aarhus Convention.
The reform of the Foreshore consent process in the context of offshore renewable energy applications was raised in the Seanad during debate on the Bill. The Oireachtas Joint Committee on Climate Change and Energy Security drafted its own Bill to address concerns in this area and I have no doubt that the Minister for the Environment, Heritage and Local Government will take account of the draft Bill developed by the joint committee when planning this reform. When considering the needs of the offshore wind industry, it is important to bear in mind that, in recent years, foreshore consents have been issued for some 420 offshore wind turbines. However, only seven turbines have been built, with no development having taken place in recent years.
In deciding on the transfer of these functions, the Government is guided by the primary role of the Department of the Environment, Heritage and Local Government, which is to pursue sustainable development. 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 offshore energy infrastructure project applications.
To an island nation, the status of the sea fishing and aquaculture industry is very important from both economic and social perspectives. In view of this, the future of aquaculture and sea-fishing-related projects needs to be secured, given the often isolated locations of the coastal communities which these industries support. Granting of a foreshore licence for an aquaculture project is currently an outcome of the detailed consideration of the aquaculture licence application. In certain circumstances, an environmental impact statement must accompany the aquaculture licence application. The licensing of aquaculture sites, including foreshore licensing for such sites, will remain with the Department. This is particularly important given the Department's role in food production.
The administration of the foreshore under the Foreshore Acts generally involves two distinct components: first, the licensing of the activity or development on the foreshore, which is a regulatory role akin to the role of a planning department; and second, the vast majority of the foreshore is State owned and managed on behalf of the Minister for Finance. Therefore, property management is a key role for the Department under the Foreshore Acts. This role of property manager on behalf of the State can, on occasion, give rise to competing applications for the same area of State foreshore. The Foreshore Acts have always provided for this circumstance. Sections 2 and 3 of the Foreshore Act 1933 stipulate that all decisions must be made solely in the public interest.
While I do not envisage that enactment of this Bill will increase the likelihood of competing applications, section 7 specifically provides for co-ordination between Departments before any decisions on consents are made. Both Departments are deeply committed to the establishment of an efficient and effective structure designed to ensure that information on applications is managed in a co-ordinated fashion.
Transfer of the foreshore functions from this Department to the Department of the Environment, Heritage and Local Government has been the subject of ongoing discussion and planning between officials from both Departments for some time. 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, presented on the advice of the Attorney General, will complete the second and legislative phase of this transfer process.
While the Bill does not go beyond assigning responsibility for certain marine functions to the Minister for the Environment, Heritage and Local Government, the drafting of the Bill was quite a complex and time-consuming task. The reason for this complexity is that rather than simply transferring functions between Ministers, the Bill assigns responsibility for non-fishery related foreshore consents and coastal management functions to the Minister for the Environment, Heritage and Local Government while assigning responsibility for foreshore consents concerning aquaculture, sea-fishing and fishery harbour centres to the Minister for Agriculture, Fisheries and Food.
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 provides the means to prohibit the removal of beach material and section 11 of the 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.
For some time now, both Departments have been working together to ensure not only the smooth transition of the functions between Departments but also the management and future development of the foreshore functions following the transfer. The Departments are committed to working together via an interdepartmental committee to ensure co-ordination and co-operation in the administration of the legislation. The staff transferring between Departments have volunteered for the move and have been in place for almost 12 months in the coastal zone management division of our Wexford office. In addition, five engineers located around the country will transfer from the Department with the functions. The Marine Institute support for the functions transferring will be accommodated in a service level agreement between Departments. The Marine Institute will continue to be an agency under the aegis of this Department.
In addition to transferring the relevant functions, the Bill contains a number of necessary amendments to support and manage the transfer of functions between Ministers. In drafting the Bill, the opportunity was taken to update and modernise the terminology and references in the Foreshore Act 1933.
Section 4 of the Bill provides the mechanism whereby the functions transferred by it may be re-combined under a single Minister at any point in the future. This section provides for the functions to be re-combined by means of an order under the Ministers and Secretaries Act (Amendment) Act of 1939. This would obviate the need for primary legislation to re-combine the functions.
Section 5 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 of the Bill, which defines the type of foreshore consents to be determined by each Minister. Where a foreshore application concerns a development that is for the support or development of sea-fishing, aquaculture or a development in a fishery harbour centre, then the Minister for Agriculture, Fisheries and Food will determine that application. In all other cases the Minister for the Environment, Heritage and Local Government will determine the application. 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 on consent applications. 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 £10, as stated in the Foreshore Act 1933, to the euro equivalent of £50,000, or €63,500. This reflects the administrative arrangements currently in place between the Department of Finance and this Department.
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 the 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 the Minister is considering a foreshore consent. This reflects the existing practice in the foreshore application process where a wide range of bodies are consulted before a consent is granted or refused. The implementation of these regulations, which is a matter for Department of the Environment, Heritage and Local Government following the enactment of the Bill, will greatly assist in putting in place a time bound period for the consideration of a foreshore consent, by requiring consultees to respond within a defined time period.
Sections 13 and 14 are amendments of the European Communities (Foreshore) Regulations 2009 (SI No. 404 of 2009), which amended section 19 of the 1933 Act earlier this year. These regulations, which came into effect on 30 September 2009, implemented the Aarhus convention's public participation directive 2003/35/EC in respect of the foreshore consent process for applications, where an environmental impact assessment is required. Under these regulations the Minister for Agriculture, Fisheries and Food is obliged to ensure that the public is fully informed and consulted on such applications. These sections extend the obligations of informing and consulting the public to the Minister for the Environment, Heritage and Local Government in respect of consent applications requiring an environmental impact assessment, which relates to the foreshore functions being transferred to him.
Section 16 updates the reference to "local authority" in the Act in line with recent legislation. Sections 17, 18 and 19 give the Minister for the Environment, Heritage and Local Government the ministerial role of applying to the courts to seek 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, due to the meaning assigned to the 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. Both Departments concerned have worked closely together on the drafting of this Bill and on the administrative arrangements necessary for the ongoing support of the functions being transferred. Agreement has been reached between this 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. 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.
At the request of the Department of the Environment, Heritage and Local Government, the administration of the Dumping at Sea Act will transfer to the Environmental Protection Agency. Part 3 of the Bill provides for this transfer. The Dumping at Sea Act bans 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. It enables 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 in the permits. It also empowers the courts to impose such monetary penalty and/or imprisonment for a term not exceeding five years, as they may decide, on conviction on indictment, on any person for illegal dumping as defined by the Act.
All applications for dumping at sea permits are carefully considered by the Department, with the assistance of specialist scientific advisers who form the marine licence vetting committee which meets frequently, as business demands. Detailed guidelines have been published by the Department to assist applicants. Copies of those 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 rolling dredging plans by ports and other harbours, by 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, the protection of the marine environment of the north east Atlantic, agreed in Paris on 22 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. Its key role 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, it has the lead role in managing water quality in the State.
I am aware some local authorities are concerned that a dumping at sea licence is required for the activity of plough dredging. The Department is fully conscious of the requirement for county councils and harbour authorities to carry out dredging on a regular basis, and in all cases every effort is made to expedite the issue of the appropriate dumping at sea permit, subject to the approval of the marine licence vetting committee. A review of this policy from an environmental perspective is not appropriate at this juncture. However, the EPA will be fully briefed on the issue during the transfer process.
The EPA, in conjunction with the Department of the Environment, Heritage and Local Government, is responsible for the implementation of the EU water framework directive, an important piece of EU environmental legislation which aims to improve our water environment. It requires governments to take a new holistic approach to managing their waters. It applies to rivers, lakes, ground-water, estuaries and coastal waters. The transfer of the administration of the Dumping at Sea Acts from this Department to the Environmental Protection Agency will provide it with the opportunity to fully integrate the disposal of dredge spoil at sea with its current waste management licensing system and it 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 EPA. 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 their powers 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 1996 Act to provide that the Radiological Protection Institute, rather than the Minister, will now prescribe radioactive substances or material as below low level. It must consult with the EPA before so prescribing and it must give notice of the prescribing by having a notice published in 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 EPA for the Minister, as appropriate, in various instances throughout section 5 of the 1996 Dumping at Sea Act and 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 to 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 this Bill. Schedule 2 lists by section of the Dumping at Sea Act 1996 where the EPA is substituted for the Minister for Agriculture, Fisheries and Food and where 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 EPA to bring summary proceedings in respect of offences under that Act. Section 37 repeals section 13 of the 1996 Act that provided for the payment to the Exchequer of fees collected under the Act. The effect of this repeal is that the EPA may now retain those fees.
Section 38 contains transitional measures for dumping at sea permit applications that have not yet 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 for 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 to 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 to the transfer of functions under the Dumping at Sea Acts to the Environmental Protection Agency. I commend the Bill to the House.