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Seanad Éireann debate -
Wednesday, 17 May 1995

Vol. 143 No. 8

Arterial Drainage (Amendment) (No. 2) Bill, 1995: Committee and Final Stages.


Amendments Nos. 7 and 10 are consequential on amendment No. 1 and amendment No. 8 is related, and all may be discussed together.

I move amendment No. 1:

In page 3, subsection (1), between lines 14 and 15, to insert the following definition:

"relevant works' means a watercourse, embankment, or other works that has or have been completed pursuant to a drainage scheme.".

I am perplexed by the way the Bill is drafted and I am prepared to listen to the Minister's response. It would be preferable to have this definition included in section 1 with the other definitions. Section 9 states that "'relevant works' means a watercourse, embankment or other works that has or have been completed pursuant to a drainage scheme." Section 10 tells us that "relevant works" has the same meaning as in section 9.

It would be much tidier to have the definition in the definition section. However, I am prepared to listen to the Minister's explanation.

I have much the same difficulty particularly with regard to estuaries, coastal problems and culverts. I raised this matter on Second Stage as I felt it would be desirable to include a provision in the Bill to make it clear that estuaries and coastal areas were covered, especially in locations where the Commissioners of Public Works already have some responsibility. Some of these areas are now the responsibility of others but in some cases relief schemes had been put in place by the commissioners. On Second Stage Senator Taylor-Quinn referred to an example of this at Leamore, County Clare, where the work was done by the now abolished Land Commission.

Although matters of this nature would appear to be covered by coastal protection legislation there is confusion arising from the failure of various authorities to accept responsibility for problems that might arise quickly. Representations are made almost immediately to have action taken and the matter is put on the long finger and is passed from one Department to another because it is not clear where the responsibility lies.

It is necessary to have written in the Bill that coastal areas and estuaries, where culverts and sluice gates, for example, are involved, are included in the minor and remedial works schemes.

I take the points made by the Senators. The definition of "relevant works" is included in section 9(1) and section 10(4) because it is referred to only in sections 9 and 10. It is generally more appropriate to keep the definitions as close as possible to their point of relevance.

Section 9(1) states:

In this section "relevant works" means a watercourse, embankment or other works that has or have been completed pursuant to a drainage scheme.

This gives the Bill a tidier presentation by putting the definition as close as possible to its point of relevance, where it specifies, in talking about works, what may and may not happen, what can and cannot happen. That is the purpose of the subsection.

Can I take it that, under section 9, the Minister would not have any objection to including coastal and estuarine areas?

When we get to section 9, the Senator will see that there are amendments dealing with that issue and we will deal with those amendments when we get to them. There is a broad definition on what is and is not included under section 9 and I will be quite specific at that stage.

Amendment, by leave, withdrawn.
Section 1 agreed to.
Question proposed: "That section 2 stand part of the Bill."

Will the Minister indicate the extent and the nature of the regulations he will be putting in place? We have all had experience with other legislation, and we know the regulations, which can be broad in their content, often escape us in the House and it is only when a problem arises it is brought to our attention that it is covered by a regulation under a section of an Act. Will the Minister give a broad indication the amount of regulation he proposes under this legislation, the extent of it and the areas in which it will apply?

This section is, for the most part, self-explanatory. It seeks to empower the Minister for Finance to make regulations under the Bill which would prescribe in more detail the procedures to be followed by the commissioners in certain instances. Section 12(5)(a), in particular, provides that a vesting order — an instrument used to facilitate the speedy transfer of land which might be required in connection with the execution of works — should be in the prescribed form. This acquisition mechanism avoids the necessity for lengthy time consuming title research, etc. Instances may also occur where, through unforeseen circumstances, procedures are not definitively laid down elsewhere, either in this Bill or in other enactments, and may require definition through regulations made by the Minister. None is imparted at this time as the Bill aims at eliminating any doubt. Subsection (2) is necessary in order to give both Houses of the Oireachtas the opportunity to consider the terms of any regulations made.

Question put and agreed to.

I move amendment No. 2:

In page 4, between lines 21 and 22, to insert the following new subsection:

"(2) It shall be lawful for the Commissioners to execute works to prevent or reduce periodic flooding in an emergency without the necessity to prepare a drainage scheme.".

The purpose of this amendment is to ensure that an emergency, where it is not possible and there is not time to prepare detailed schemes and plans, the commissioners would have the authority to move speedily and effectively to deal with a situation which may be deteriorating rapidly and where, if the procedures which are laid down in the Bill were to be followed, important time could elapse and serious damage could occur which would be almost impossible to deal with in the short term. I wish to put on record that it is not the intention, in putting forward this amendment, that we would have free-for-all. Senator Taylor-Quinn referred to free range bulldozers moving in to do "quickie" jobs and doing untold damage. That is not what we have in mind. When I was Minister of State with responsibility for the Office of Public Works I was involved in a situation where, because of the breakdown of a certain culvert, certain flood waters were rising rapidly and, unless remedial action was taken quickly, they would flood houses and cause untold hardship for the people living there. It was necessary to make quick decisions on how to deal with this matter. If, in that kind of situation, the procedure the Minister is proposing here were to be followed, it is likely that many houses would be flooded, irreparable damage would be done and lives could be lost. The situation could develop where the cost of doing the work at a later stage would be much higher and extensive than was envisaged. That cost could be avoided if these emergency measures could be taken.

Yesterday afternoon, the Minister of State mentioned that the Local Authorities (Works) Act, 1949, was on the Statute Book and could be used in this kind of situation. The Minister of State will be aware that the Local Authorities (Works) Act, so far as drainage problems are concerned, has not been used to any great extent for many years. Some schemes which were started under the Act were never completed because, as the Minister and the commissioners are aware, local authorities ran into difficulties because of the extent of their powers and some schemes had to be abandoned. There were substantial claims made against local authorities which could not be met at the time. It is not realistic to suggest that the Local Authorities (Works) Act could be used to deal with such a situation because the Act, in its present shape, is not being used to any great extent.

Before I drafted the Bill I introduced earlier this year, I looked carefully at the Local Authorities (Works) Act to see if it was possible to extend and amend it rather than do what is proposed in this legislation. I came to the conclusion that the Act would need to be extended and expanded so much — the additional powers were so involved and complicated that they would have to be taken from the 1945 Act and transferred to the Local Authorities (Works) Act — that it was far more advantageous and wise to do as the Minister is doing. That is the advice he would have got from his professional advisers. I am still not convinced by the argument the Minister put forward yesterday evening — that if we had this provision it would be used unwisely and in a manner that would create more problems than it would solve.

The purpose and intention behind my efforts in moving this amendment are genuine. It may happen next winter — hopefully it will not — that emergency remedial action will be taken to relieve flooding in a town such as Ennis or Carlow but because of the necessity to draft schemes and designs and advertise them, a quick remedial job that would solve the problem without creating any further ones will not be within the powers of the Commissioners of Public Works because of the restrictions imposed in this Bill.

I can see where Senator Daly is coming from but there are a number of inherent flaws in what he is proposing. If an amendment as broad as this is inserted and applied across a number of situations, it could be open to serious misuse. The necessary works that may be required in some instances could be demanded by people under this subsection if it were to be included in section 3 of the Bill. Each local authority has an emergency plan in place to deal with flooding. The severity of flooding has varied from time to time and the capacity of the local authorities has also varied because, in many instance in recent times, they did not expect such severe flooding. Nevertheless, they are in a position to respond. The Minister for the Environment and his Department will have to look specifically at that aspect of local authority work. It must be examined at a different level.

Where neither the Minister nor the Office of Public Works has responsibility, the Minister has the power under section 6 to enter into an agreement with one or more persons, including the local authority, whereby that person or persons agrees or agree to defray the costs incurred by the commissioners maintaining specified arterial drainage works. Senator Daly specifically mentioned sluice gates and similar works. In those cases the responsibility rests with either the Office of Public Works or the old Land Commission. There are sluice gates around the country and the Office of Public Works should examine this matter. There may have been negligence over the years and repair works may not have been done. That is a simple matter of repairing an existing structure which has been neglected. To move into a totally new area by including this subsection would be fraught with danger and could not be tolerated. While I appreciate what the Senator is attempting to do, in the long term it would not be wise to include it in the Bill. It would not relieve the situation anywhere.

I support Senator Daly's amendment. He is concerned about the delay that would occur if a scheme had to be prepared in an emergency. A delay would first arise in the preparation of the scheme. In addition, there is an obligation to put the scheme on public display after it has been prepared and allow a prescribed length of time for local authorities and others to make observations on it. These further delays could exacerbate the emergency about which Senator Daly is talking. His amendment is desirable but our intention is that it would only be used in extreme emergencies.

This is a difficult matter. On one hand we all wish to see hardship alleviated and immediate action taken to solve a problem but, on the other, the works required to alleviate the problem are of a more long term nature. Having said that, I support the thrust of Senator Daly's comments. However, the question is who is responsible where a flooding incident takes place? What agency or agencies are required to intervene? Is the Office of Public Works required to intervene at that early stage? If not, it should be allowed to intervene. If that were the result of Senator Daly's amendment, it should be supported. However, it is a different matter from making a scheme which would require more time. I can see the point about culverts and so on but would they be the subject of a scheme or would it be open to the local authority to go in and deal with that matter immediately?

The effect of this amendment would be to insert an additional subsection. It is worth bearing in mind that in executing works. many considerations have to be taken into account, not least, as I stressed in the House last night, the danger or possibility of transferring the problem downstream and the necessity to assess the environmental considerations. As Senator Henry said, there have been occasions in the past when waterways have been tampered with and this had a deleterious effect on local water schemes, water tables and so on.

Emergency powers are already available to local authorities to relieve particularly bad situations as may be envisaged in this amendment. It is not, therefore, considered necessary or appropriate to the current Bill. Last night Senator Fahey mentioned that the last thing in the world people wanted was to have the early introduction of Hymacs willy nilly. The danger is that when one includes a section like this, somebody will go in with Hymacs or JCBs without taking adequate cognisance or consideration of the environmental factors.

Senator Dardis asked a very valid question: what agencies are responsible in particular situations? Senator Dardis gets it right when, in amendment No. 4 he states "Before commencing work on a drainage scheme the Commissioners shall prepare and publish an Environmental Impact Study.". The Principal Act and European legislation and directives make it imperative that before any drainage scheme or flooding relief is undertaken, environmental considerations must be examined. There is, therefore, no question of the Office of Public Works making a substantial intervention in the area of flood relief or drainage without considering the environmental impact of the works envisaged.

Senator Dardis asked what agencies are responsible. The Local Authorities (Works) Act, 1949, is the appropriate instrument for action when there is an immediate emergency. Senator Daly, Senator Taylor-Quinn and anybody from an area where there was flooding this year knows it was the local authorities who acted in Sixmilebridge and Cappamore. They moved in with resources and the fire service for pumping, sandbagging, clearing of culverts and so on. It is simply a case of moving in with the existing emergency services. The Act mentions local authorities so they are empowered to undertake specific works. Introducing a section whereby the Office of Public Works could go in without preparing a scheme and could, without notice, intervene to relieve flooding would be a usurpation of the function of the local authority. One renders to Caesar the things that are Caesar's and to the local authorities the things that are the local authorities'. In this case the local authority is the agency that acts on the ground.

Senator Dardis hit the nail on the head again from the point of view of the remedial works themselves. They must come under the jurisdiction of the Office of Public Works and the long term solution has to come under the aegis of the Office of Public Works. One has to differentiate between the role of the two agencies. I think it was Senator Daly who said that the Local Authorities (Works) Act has not been invoked. It has been invoked very effectively and is one of the possibilities we are looking at for Sixmilebridge. There is provision there and the powers are there, and it is a question of invoking those powers while leaving definite demarcation in the area of responsibility.

The thrust of this amendment should be supported. The Local Authorities (Works) Act is on the Statute Book but it is not used to any great extent. The problem is that a county manager immediately finds himself in a situation where he does not have the finance to back up works he wishes to do. Whenever the Local Authorities (Works) Act is mentioned, the question of finance arises. A small pumping job may be carried out but that is not what Senator Daly intends in his amendment. He intends that the Office of Public Works carry out works in an emergency without having to draw up a scheme. In certain situations the former could be very practical but not in my county, and obviously it is not happening in many other counties. However, I accept what the Minister said about Sixmilebridge. In my country we have not had the experience of county managers involving themselves to any great extent in the Local Authorities (Works) Act. The question of finance has always arisen and it will continue to be a problem. The legislation will not be effective in addressing the situation Senator Daly is attempting to address.

My fear is that expectations have already built up as a result of the publicity this amendment has received. Everybody knows that there has been widespread confusion in this area for many years — it has not happened overnight. As Senator Finneran said, a certain amount of this is due to the absence of finance in State agencies, whether it be the Office of Public Works or the local authorities, to deal with these problems. The result has been that particular problems which could have been remedied have been tossed from one agency to another and the situation has been allowed to deteriorate. Expensive works will now be necessary to remedy something that could have been remedied at much less cost and inconvenience had the responsibility as to who should do what had been clearly defined.

Before the Oireachtas concludes dealing with this legislation it would be in the Minister's best interests to ensure that we are quite clear about where responsibility lies and who should do the job. In this regard I am scared by what the Minister is saying. I am interested in his new found enthusiasm for the Local Authorities (Works) Act. Since it was passed in 1949 most Governments have been anxious to forget about it; they appear to have hoped it would vanish. There is no doubt that it caused problems for local authorities with regard to claims and they did not have the statutory powers to support the Act. It resulted in many claims for compensation against local authorities although, to the best of my knowledge, the Act has been in suspended animation since then and has not been used to any great extent.

If the Minister is saying that it must be amended and extended, that is fair enough and I accept that he would have difficulty accepting this amendment. I am prepared to give him time to see how he might deal with it on a later Stage. However, I strongly suggest — and I am not being party political in this regard — that this matter must be cleared up while we are dealing with this Bill rather than leave the situation unclear. Huge expectations have been generated with the introduction of this legislation and next winter the Minister will be faced with many demands, claims and requests for action and expenditure in problem areas. There will be many disappointed people if they are told again: "we do not have the power to do that under the Act introduced last year; it is not extensive or wide enough and we must draw up and publish designs and schemes".

I appreciate the dilemma facing the Minister. However, this matter must be clarified and stated clearly in the Bill. I am prepared to give him extra time to examine this and, perhaps, deal with it on Report Stage or in the other House. In the interest of passing a proper Bill the Minister should look seriously at this matter before it leaves this House.

I do not doubt the spirit or the sincerity of purpose in what Senator Daly is trying to achieve. We are all aware of the crises that arose across the country this year. That was the reason for the introduction of Senator Daly's Bill and for the introduction of this Bill by the Government.

I have a new enthusiasm for the Local Authorities (Works) Act. It has been under-valued, under-utilised and has not been invoked. Senator Finneran said that managers have not used it until now. The blame for that rests fairly and squarely with the managers. There might be a resource problem but that can be addressed. However, the functions are clearly defined, the legislative powers are in place and it is simply a case of using them. The fact that they have not been used does not reflect on the Office of Public Works but on individual local authorities. In addition, until now, fortunately, the crises have not been on the same scale as the nationwide occurrences of last winter and spring.

Senator Daly said that huge expectations have been built up. Those expectations will be met. I have already announced that the schemes prepared in Carlow where 70 houses were flooded, Kilkenny, Duleek, Newport and Cappamore, Sixmilebridge, Dunmanway, Williamstown and Belclare in County Galway and the town of Gort will go ahead. Those are the priority areas and all of them have been tackled this year. We will eliminate — certainly reduce — the possibility of flooding in those areas.

With regard to the appropriateness of local authorities, it is obvious that the local authority is more au fait with local situations. It knows were there are sluices, outlets, culverts, gullets and services. The local authority has people on the ground and has its offices in the area. On the other hand, the Office of Public Works is a national agency which has an intermittent spread of services throughout the country. In cases of emergency it is appropriate that emergency intervention be left to the local authority under the works Act to intervene either by the provision of emergency services or by carrying out works. However, if a long term remedial measure is necessary it is obvious that the intervention of the Office of Public Works will be required, and that will take time. If it is a short term problem, it is the responsibility of the local authority but if a long term solution is required it is the responsibility of the Office of Public Works.

However, the absolute imperative for environmental consideration must be underlined. That of its nature implies that one cannot move in without doing some type of environmental impact assessment. On a point of clarification, we are not talking necessarily about putting something on the long finger or the back boiler. We are talking about carrying out an environmental assessment with a definitive deadline. However, that involves time so there will be a time constraint.

I hope I have made the relevant functions clear. The Local Authorities (Works) Act has been under-used and under-valued.

There is a reason for that.

Yes, but it is up to the people who have the powers to invoke and use them.

It did not have the powers.

The Minister appears to accept that there could be situations in which it would be desirable to proceed with works with the least possible delay. We would be reasonably happy if the Bill were to provide that it would be lawful for the Office of Public Works to defray the costs of works which would be undertaken in emergencies by local authorities under the Local Authorities (Works) Act. As Senator Finneran said, the main reason county managers and local authorities are reluctant to become involved in carrying out works under that Act is that there is no finance to support those works. However, if it were lawful for the Office of Public Works to defray the costs of such works that would put a different complexion on the situation. Would the Minister be receptive to that suggestion?

I appreciate the fact that local authorities are under considerable financial constraints. There are the pressures of roads and road maintenance and the various elements of service are constantly subject to debate, as it were, in terms of whether there are enough financial resources. I will bring the issue of enabling local authorities to undertake works before the interdepartmental committee which I chair and which consists of 12 Departments or agencies.

We are considering the entire ambit of drainage, flood relief etc., and I am prepared to consider the business of refunding, to or by local authorities, of works undertaken in the course of emergency flooding relief works. I hope to be in a position to add further clarification to this in the Dáil. Local authorities have the powers; finance is another matter. We will consider resources, but it is appropriate that the local authorities, which have the local knowledge and are on the ground, should fully utilise the provisions which are vested in them by the 1949 Act.

Coming from an area affected by the floods, I am in agreement with the Minister's objective. At meetings every year Carlow County Council and Carlow Urban Council consider estimates which provide money for relief in emergency situations. Such relief work consists of putting down planks and sand bags and ferrying people through the floods. It is an annual occurrence and money is provided. This year was especially bad. Houses and premises belonging to business people in Carlow were flooded last December and again last January and February. The last thing the people in Carlow want is that a situation would be created where somebody would rush in, relieve the flooding in Carlow but make it worse in Leighlinbridge Bridge, Bagenalstown and other towns downstream. In view of this, the provisions in the Bill and the Minister's approach are correct.

We have had a long discussion on this amendment and I am anxious to bring it to a conclusion.

In support of Senator Mullooly's remarks, I detect that the Minister is moving a little bit in the Senator's direction. If the local authority or a local co-operative group was to come forward with a scheme which had been planned and was possible from an engineering viewpoint and if it could be shown that there was not any adverse effect on the environment or ecology of the area, would the Minister then accept this as the drainage scheme and defray the costs of carrying out the work by the local authority or the co-operative group?

When co-operative groups attempt to reach agreements, whether they be over right of ways or wayleaves, and attempt to do a job, they can do so more cost effectively than the Office of Public Works. By accepting the amendment and considering the possibility of using the local goodwill and the local proposals, the Minister could effectively get a scheme together which would be cost effective and much easier to implement from a practical viewpoint than if the bureaucracy were to undertake the job, which we all accept would be much more difficult. There are umpteen examples now to be found in local authorities throughout the country where, with a little bit of local co-operation and local initiative, a local authority can undertake work far cheaper than the Office of Public Works. Hopefully, the Minister will accept a compromise on the amendment. If he does, we are happy on this side of the House.

To take Senator Fahey's suggestion one step further, where repeated and periodic flooding occurs, perhaps the Minister's interdepartmental committee would request the local authorities to follow this course of action and submit a report to the committee.

I repeat, we have had a long debate on this and I wish to finalise it if possible.

I am a little wary that the Local Authorities (Works) Act, 1949, has appeared on the agenda at this stage. This legislation has been in place for over 40 years and there are a number of problems with it. The county managers and the county councils are strapped for cash as it is, so they do not have the money to operate the Act in most cases. There is also the claims factor. Every county manager is running scared to carry out works under the Act because they are afraid that big claims will land on their desks. This has already happened and payments have had to be made.

There is also the problem of removing the short term flooding problems out of the Bill back to the local authorities and other Departments, including the Department of the Environment. In fairness, the Minister will chair a subcommittee which is prepared to consider this issue. Hopefully, the Minister will get his way and that the opportunity for relief of flooding in a temporary situation can be dealt with by what he has in mind, and I take in good faith his word on this issue. However, if we are to go back to a situation that when temporary flooding problems arise the stock answer will be that a solution is to be obtained through the provisions of the Local Authorities (Works) Act, 1949, we might as well not put this legislation through the Houses of the Oireachtas.

The Local Authorities (Works) Act, 1949, has not been used over the years and to attempt to transfer the responsibilities incorporated in that Act into this Bill by an amendment is unwise. It is only in recent years, where the severe problem of flooding has arisen, that there has been a significant call on the 1949 Act. A number of local authorities have acted under this legislation, but the Department of the Environment and the local authorities have been restricted because of the lack of cash. If this is the situation it must be examined, but to insert this amendment into the Bill would be unwise.

There is an opportunity for the Minister, in chairing the interdepartmental committee, to consider the matter and have it addressed by the relevant Department and the other Departments dealing with the Department of Finance so that the local authorities, especially those repeatedly affected by flooding. will be provided with specific moneys to address this situation. This is the road we should pursue rather than attempting to throw more responsibility on the Office of Public Works.

The Minister rightly said that the local authorities are fully familiar with these situations because in each local authority area there is an area engineer who has detailed knowledge of every drain, culvert and the flow of every piece of water in the area, and can therefore act immediately. The Office of Public Works has regional officers, but it only has a more general knowledge; and even if the Office of Public Works were to undertake work it would still have to work with the local authority in order to obtain the specific, detailed information of the local situation. There are horses for courses and in this area responsibility must be left with the local authorities, but they must be properly funded to undertake their work.

I thank Senator Townsend and Senator Kelly for their keen appreciation of what are and what are not the relevant functions of the different agencies, the Office of Public Works and the local authorities. Senator Fahey appears to be somewhat confused with regard to the amendment and the purpose of section 6 of the Bill. He rightly espouses the idea of a whole new dimension involving joint ventures, co-operative efforts and new initiatives involving a range of partnerships of agencies or individuals. However, this is contained in the Bill. Section 6 of the Bill says:

The Commissioners may enter into an agreement with one or more other persons (including a local authority or authorities) whereby that other person or persons agrees or agrees to defray, in whole or in part, the costs incurred by the Commissioners in executing or maintaining specified arterial drainage works.

If one has, for example, a railway line which is under water, Iarnród Éireann, the local authority and the Office of Public Works could conduct a joint venture that could share the cost of the works. If one has a group of individuals in an area who feel that their area has been neglected and unaddressed and one of them mentions the desirability of a co-operative effort, there is nothing to stop them coming up with some of the cost involved to assist the Office of Public Works in enabling those works to go ahead. We have not set down specific ratios or amounts, but the principle enshrined in the Bill is that this is a new departure and the Office of Public Works, in conjunction and co-operation with local individuals or agencies, can go in. Indeed, I saw the situation when I looked at the railway line at Ballycarra in County Clare, and this new dimension could be exploited to the maximum in such an area.

I accept Senator Fahey's point on the desirability of having local input. This is desirable in getting local goodwill, easement rights and rights of way, engendering maximum local support, eliminating possible local objections and having to dispense with the provision in the Bill which enables us to force access for the common good. The ideal situation is to get consensus on the ground, which is the whole purpose of this section. What Senator Fahey requires is enshrined in section 6 of the Bill.

On the point made by Senator Finneran — this has been well countered by Senator Taylor-Quinn — it is a 40 year old Act. The fact that it has not been utilised in no way impugns the Office of Public Works or the State. It may impugn local authorities to an extent, or maybe it is a reflection that there was no need to use it up until now. We are enunciating the powers enshrined in the 1949 Act and encouraging local authorities to run with them. I am also giving a solemn and categorical commitment to the House that I will take this matter up with the interdepartmental committee. The Department of the Environment, who are the governing agency and umbrella Department that handles the funding of local authorities, are on that interdepartmental committee and we will be on that level looking at the resources which will be available to local authorities from the point of view of using the 1949 Act when there is an application by a local authority to invoke it.

If there is a problem with a particular situation, I encourage members of local authorities to bring it to the attention of the Department of the Environment to seek specific funding. As I said when I was operating as chairman of the interdepartmental committee, I will be making strong recommendations and explaining same in the other House.

You can make a quick comment, Senator Fahey. We have been talking about this amendment for a long time.

I appreciate that, but this may be the most important amendment in this Bill. Senator Fahey does not get confused that easily and I am not confusing section 2 with section 6. Section 6 refers to somebody else making a contribution towards the cost. We are not taking about this here.

Senator Daly's amendment is carefully worded. It says "to reduce periodic flooding in an emergency without the necessity to prepare a drainage scheme.". That is not to say that somebody else cannot prepare a drainage scheme and submit it to the Office of Public Works. While the local authority would certainly have an input, it should not have to prepare the scheme either because one would then run into the problem which Senator Taylor-Quinn mentioned of people making claims. If the local group prepared the scheme, one could get over a lot of those problems.

I want to refer back to the Ballinderreen scheme. In that scheme people began to dig without any reference to any agency, but it is an example of how the matter could be properly dealt with. If that group had prepared a scheme, done its engineering work and environmental impact study or had it done for them professionally, it would have come up with a suitable scheme. That has been proved because the job is now done, it is there. I asked an eminent ecologist in the area if what had been done would have any harmful effects. He said that it would not, that it had only taken off the excess water.

Last year the Office of Public Works prepared a report giving us the mapping and costing for a similar type of job costing £2 million. Officials in the Office of Public Works have since told me that the Ballinderreen scheme does not solve the problem; it does not drain the area. We do not want to drain the area. We simply want to take off the surplus water in the shortest period of time during winter if there is excess heavy rain, as has happened in the last few months. The Minister went there, had his photograph taken when standing on the banks of the floods and gave these people his support, and he was right. I know the hassle the Minister has received, although I have no evidence of it, from within his Department. I have seen the faxes that were sent down from different sections of that Department which said "Don't do this. Stop this. Don't give the road an opening licence". It is a good job that they did not arrive in time to the Galway county manager, because if they did the job would not have gone ahead. This is the ideal example of a local initiative. It was done by a Fine Gael TD, Deputy McCormack, and, fair play to him, I would not have the courage to do it. How one can solve a simple flooding problem through a pragmatic approach that will not damage the environment is now on the ground to be seen by all.

I ask the Minister not to rule out this amendment. I also ask the Minister to send his officials there again and look at what has been done. It does work and has worked already. It will work for the rest of south Galway if it is allowed; otherwise we will have to go through the same rigmarole that we have seen from the Office of Public Works with regard to drainage in this country over the last 40 years. I do not blame the Office Of Public Works because that is the way in which it has to do it, but it will cost millions of pounds and will take many years to solve this fairly simple problem. A scheme has now been put in place by a Galway engineering firm, who have an environmentalist advising them, which can drain water from Killamoran to the sea without it costing a fortune and certainly without it having any major ecological impact. We are happy to have a full and thorough environmental assessment conducted on that area as part of that scheme. They could produce a scheme for the Minister in the next few months and could satisfy the Office of Public Works as to its workability and desirability, which is what we are asking for in this amendment.

This proposal is fraught with danger and is courting catastrophe. It is wrong to move in on the basis of what is envisaged in this amendment. It is courting catastrophe because one must get the balance right. The Department of the Marine examined at first hand the possible implications of Deputy McCormack's scheme for the bay. Galway County Council and our officials were also on the spot. The nine schemes envisaged this year will tackle all the immediate emergency blackspot areas and we will put in place a second phase of schemes for next year. The fact that it would be done in an ordered and systematic way does not mean that it would cost millions of pounds.

I am not saying that it would.

Repairing the damage caused by flooding in Belclare in County Galway, for example, would cost £30,000, Repairing the damage in Williamstown in County Galway — we saw the harrowing impact on the 38 families who had been isolated in that area — will cost approximately £200,000 and the Office of Public Works will have to do repairs for both of them. To talk in excessive terms about exorbitant figures and huge amounts of money being thrown down the drain because the Office of Public Works is involved is simply not true. Senator Dardis was right last night; everything that is undertaken has an environmental consideration. We must assess and evaluate the impact on the environment.

I do not dispute that but in order to do that——

The Minister without interruption, please.

The impact of a scheme on the environment must be assessed. A protracted scheme lasting six, nine or 12 months is not necessary, but some environmental evaluation in relation to the possible impact must be carried out.

I have no problem with that.

In the short term where there is an immediate flooding problem, as happened in Gort, the fire brigade, Civil Defence and the local authority moved in and did the job. There is a challenge there for the local authorities. They should go in, do the job and use the powers they have not used until now. They will not be found wanting in resources.

Was Deputy McCormack's scheme a catastrophe? I am asking the Minister a straight question.

I have already gone on record in relation to Deputy McCormack's scheme. It certainly seems to be working well, but to go into certain areas and execute that kind of a scheme without having the necessary advance preparation could be courting catastrophe and Senator Fahey knows that as well as I do.

I am asking that the group be allowed to carry out the necessary advance preparations. It would still have to be approved by the Office of Public Works.

That is in section 6.

No, it is not. I am not talking about sharing cost. I am talking about a scheme being prepared by the local group, not by the Office of Public Works. Such a scheme would have to be approved by the Office of Public Works and we are not suggesting for a moment that an environmental impact study should not be done. It can be done; it is being done at the moment in south Galway. A scheme similar to Deputy McCormack's could be carried out, but it would be prepared locally. The Minister said that the Department of the Marine and the Office of Public Works visited Gort. I know they did, but the scheme has worked. What is wrong with doing that in an organised, properly planned way?

I do not wish to draw this out or to be repetitive in what I am saying but it bothers me that the Minister seems to be implying that the Local Authorities (Works) Act, 1949, was not being used because the local authorities did not want to do so, or did not have the resources to deal with it. The Local Authorities (Works) Act is not used because local authorities ran into legal problems with it. They found themselves in the High Court with claims. They did not have the statutory cover that the Office of Public Works have under the Arterial Drainage Act. The local authorities stopped using the Local Authorities (Works) Act because it did not give them sufficient power and authority to do what they needed to do. Resources are important, but we are dealing with the legislation here, with the power that will be available to the Office of Public Works and to local authorities.

I appreciate that the Minister is chairing a committee and that the Minister for the Environment is on that committee. If the Minister says to me that he will ensure that the Local Authorities (Works) Act is legally extended to deal with these situations I am prepared to hear him out, but he has not said that. The Minister has said that he will raise this matter at the committee. Unfortunately, by the time this is done this legislation will have passed through this House. I am fully aware, as are his advisers, that the Local Authorities (Works) Act is not being used by the local authorities because their powers and authority under that Act are seriously deficient. The difficulties have something to do with availability of resources, but they are mainly to do with the absence of statutory cover which local authorities require to save themselves expensive and extensive court challenges.

Before we finally decide whether to press this or not, I want an assurance from the Minister of State that between now and Report Stage he will look very seriously at this amendment and see whether he can design a system that will satisfy him. The Minister of State is being alarmist here this morning in some respects but there is no necessity to get alarmed about this. Senator Taylor-Quinn did not deny that there is a problem here. Whether it is a problem for the Minister for the Environment and local authorities or whether it is the Minister of State's and the Office of Public Works' problem, let us clear this here now before we go any further because otherwise we will not make any progress.

Senator Fahey may not be confused, but I am getting very confused. My confusion can be cleared up by a simple answer to a simple question. Am I correct in understanding that there is nothing to prevent anybody anywhere from preparing a scheme and submitting it to the Office of Public Works for adjudication under section 6?

There is nothing to stop anybody preparing a scheme, presenting it to the Office of Public Works and having it adjudicated on. Whether that scheme would then go ahead would be the subject of discussions between the Office of Public Works and the sponsors of the scheme itself. In relation to Senator Daly's point, resources have been the problem. Three Opposition Senators have said this. In relation to the powers conferred by that legislation, we are preparing to invoke the Local Authorities (Works) Act in Sixmilebridge, so that gives the lie to that. The powers are there, but the fact that the powers have not been used until now has to do with the resources available to local authorities, the fact that from 1986 on there was a calculated decision in relation to recoupment of money to local authorities and the fact that local authorities are always afraid that if they intervene in such situations they will be left in the lurch. That is a matter I intend to address very vigorously at the interdepartmental committee where we will have the Department of the Environment. I want a situation to prevail that if a local authority wants to do emergancy work it will not be strapped for funds.

Will they be covered legislatively?

They are not covered at the moment.

At Sixmilebridge they will be covered.

Section 6 refers to an agreement whereby there can be——

We are discussing section 3, in fairness.

I know. Section 6 refers to an agreement about defraying in whole or in part the costs incurred by the Office of Public Works in executing or maintaining specialised arterial drainage schemes. It is an agreement as to sharing the costs or defraying some of the cost. It has nothing whatsoever to do with what I am talking about.

Amendment put.
The Committee divided: Tá, 22; Níl 27.

  • Bohan, Eddie.
  • Byrne, Seán.
  • Daly, Brendan.
  • Fahey, Frank.
  • Farrell, Willie.
  • Finneran, Michael.
  • Fitzgerald, Tom.
  • Kelleher, Billy.
  • Kiely, Dan.
  • Kiely, Rory.
  • Lanigan, Mick.
  • Lydon, Don.
  • McGennis, Marian.
  • McGowan, Paddy.
  • Mooney, Paschal.
  • Mulcahy, Michael.
  • Mullooly, Brian.
  • O'Brien, Francis.
  • O'Kennedy, Michael.
  • Ormonde, Ann.
  • Roche, Dick.
  • Wright, G.V.


  • Belton, Louis J.
  • Burke, Paddy.
  • Calnan, Michael.
  • Cashin, Bill.
  • Cosgrave, Liam.
  • Cotter, Bill.
  • D'Arcy, Michael.
  • Doyle, Joe.
  • Enright, Thomas W.
  • Farrelly, John V.
  • Gallagher, Ann.
  • Henry, Mary.
  • Howard, Michael.
  • Kelly, Mary.
  • Magner, Pat.
  • Maloney, Sean.
  • Manning, Maurice.
  • Naughten, Liam.
  • Neville, Daniel.
  • O'Sullivan, Jan.
  • Reynolds, Gerry.
  • Ross, Shane P.N.
  • Sherlock, Joe.
  • Taylor-Quinn, Madeleine.
  • Townsend, Jim.
  • Wall, Jack.
  • Wilson, Gordon.
Tellers: Tá, Senators Mullooly and Fitzgerald; Níl, Senators Cosgrave and Magner.
Amendment declared lost.
Question proposed: "That section 3 stand part of the Bill."

Perhaps the Minister could tell me what works will qualify. During the Second Stage debate I spoke about the maintenance of certain sections of rivers, particularly the River Shannon and River Suck. Section 3 clearly states that the "Commissioners are of the opinion that the execution of arterial drainage works is expedient in respect of any watercourse or any part of a watercourse". Does the section of the River Shannon from Meelick to Athlone, which is full of silt as a result of Bord na Móna's drainage works, and the section of the River Suck from Ballinasloe to Shannon Harbour, which has suffered from lack of maintenance, qualify under this Bill? Other rivers are maintained by drainage boards. Perhaps the Minister could assure me that maintenance will be carried out on certain stretches of our main rivers, particularly the River Shannon which is the receptacle for Bord na Móna's drainage works in the midlands and west. There will be little in this Bill for the people living in the Shannon-Suck basin if it is unable to provide for such maintenance work.

As regards the programme of flood relief works envisaged in section 3 and the extension of the powers of the Commissioners of Public Works in relation to the execution of arterial drainage, the existing powers for the carrying out of such works are contained in section 4 of the Principal Act, which states:

Whenever the Commissioners are of the opinion that the execution of arterial drainage works is expedient in respect of any catchment area for the purpose of preventing or substantially reducing the periodical flooding of the lands in that area or of improving by drainage lands in the said area, it shall be lawful for the Commissioners to prepare a scheme ... for the execution of such works....

As regards Senator Finneran's question about whether work can be carried out on sections of the Shannon under this Bill, we are talking about the relief of flooding on a localised basis. This scheme is a substantial undertaking and has been promised since the year dot, but it has never been delivered. A scheme for the Shannon would be a major undertaking because it would need to be designed and put in place and the necessary finance would have to be made available.

Senator Finneran was not in the House last night when I replied to his questions on the stretch of the River Suck south of Ballinasloe, which comes under the jurisdiction of the Shannon Navigation Act, 1990, introduced by my predecessor. As regards the functions of the different agencies, bodies, organisations, semi-State bodies or otherwise, powers are devolved or responsibilities imposed on the ESB in the south Shannon area for example. It has specific responsibility for controlling water levels, etc., which is a contentious issue in its own right. Different powers and functions are vested in different agencies and organisations.

This is bad news for the people of County Roscommon and it is a cop-out as far as the problems on the River Shannon and River Suck are concerned. The Minister referred to section 4 of the Principal Act, which has been in place since 1945, but nothing has happened under it. I understand that stretches of the rivers can be maintained under this Bill. The Minister mentioned an overall scheme, but that is not what we require. The Leas-Chathaoirleach and I are aware that a scheme to carry out works on the catchment area of the Shannon is still as far away as it was 50 years ago. Unless the Minister can assure the House that the Office of Public Works will carry out works to alleviate the blockages on stretches of the Shannon in south Roscommon, east Galway and Offaly, which are full of silt, this Bill is useless.

The main problem regarding the Suck and the Shannon is the silting up of a section of the Shannon from Meelick to Athlone. This is contributing to serious flooding in south Roscommon. Unless the Bill is able to address this and the Office of Public Works is able, in co-operation with Bord na Móna if necessary, to carry out works on those sections of the Shannon and the Suck, there is very little in the Bill for people in that part of the county.

When we discussed the previous Bill the Minister indicated that a schedule would be attached to the Bill he was going to introduce. At the time I argued strongly against the provision of a schedule of priority areas in the Bill. I made the point that the Minister may be confined to dealing with the catchments identified in the schedule.

How many of the nine projects he has announced will be dealt with under this legislation? Will they be mainly dealt with under the Local Authorities (Works) Act, as he indicated will be the case with the Sixmilebridge project? We are becoming more confined and are being told of the projects with which can and cannot be dealt with under the Bill. He has already identified areas where local authorities will have to be more active than they were in the past.

What has become of the schedule on which he put such emphasis, not so much during the debate on the previous Bill but during a discussion we had on arterial drainage at the time of the severe flooding? The Minister indicated there would be a schedule of priority areas attached to the legislation, similar to the schedule attached to the Local Authorities (Works) Act. Would it be the intention to amend that Act to include these projects?

Senator Finneran seems to miss the point about the powers and intentions of the Bill. It is cost factors which have militated against the drainage of the Shannon. The Arterial Drainage Act, 1945, includes provisions to enable the drainage of the Shannon to go ahead. There was never an expectation that this Bill would provide for the drainage of the Shannon.

I never mentioned the word "drainage". In my Second Stage speech I spoke about maintenance.

The 1945 Act contains powers in relation to the drainage and the maintenance of the Shannon. Governments of the Senator's persuasion have been in power in the 1930s, 1940s, 1950s, 1960s, 1970s, 1980s and 1990s and the situation has become progressively worse. This power under the 1945 Act was never invoked. The Senator must understand that Act remains in place. We are adding to and amending it to enable the alleviation of localised flooding to proceed.

With regard to Senator Daly's question, it is envisaged that one of the nine schemes will be carried out under the Local Authorities (Works) Act, 1949. For several weeks we have been in active consultation with Clare County Council in this regard. It is hoped that the other eight projects will go ahead under the aegis of this amended legislation. The schedule of attached works is not incorporated in the Bill. However, parallel to the publication of the Bill, we issued to all Members of the Oireachtas a press statement committing ourselves to the nine schemes in question.

The Minister is to some extent misquoting me because he says I am asking for drainage of the Shannon. I made it very clear on Second Stage I was talking about maintenance of sections which have not been maintained and need to be so on account of them being the main receptacles for Bord na Móna developments which are taking place over 50,000 acres. We know as well as the Minister that there have been different Governments, that the Act has been in place since 1945 and that it has not addressed the problem of the Shannon. We genuinely expected that this amending Bill would address the problem on the basis that it would provide for maintenance of sections of the Shannon which needed it. If the Bill does not provide for maintenance, the alleviation of silt and the opening of cuts which are being silted up, and if it does not tackle the problems in the south Roscommon, Clonown, Suck and Shannon areas, it will be extremely bad news for and will not be taken too well by people who have suffered because of the lack of maintenance of the Shannon and Suck rivers over the years.

One cannot maintain a section of a river unless it is first drained. Maintenance is a logical corollary and follow-up from drainage works. Primary drainage works must first be undertaken. The 1945 Act enables the Office of Public Works, provided the resources are there, to prepare a scheme, carry out the works and, as a logical consequence of this, there would be ongoing maintenance works. Did Senator Finneran honestly expect we were going to announce the drainage of the Suck and the Shannon?

I never mentioned drainage of the Suck or the Shannon. The Minister is misquoting me.

The Bill deals with the problem of localised flooding, which has been a phenomenon for a number of years. It enables a localised scheme to be carried out. If as a result of flooding in the Suck and the Shannon, towns, streets and households are under water in areas such as Portumna and Ballinasloe, we can tackle the problems in those black spot areas. Up to now we could not do this because work would have to be done in the entire catchment area and this would involve a high cost. I am not making any grand claims about what the Bill can and cannot do. I did not heighten any expectations about what it sets out to do. I have been absolutely clear and specific that the Bill is enabling people to alleviate and, I hope, eliminate flooding in localised areas. It seeks to do this and no more.

In his previous reply the Minister referred to the press release of 11 May and the nine schemes mentioned in it. I am not clear whether or not these schemes will be attended to or just could be attended to, because the release says the Office of Public Works has identified nine high priority areas where the design of flood relief works could commence immediately. That is different to saying they will commence immediately. We need to clarify this point.

Clarification of the schemes is a question of terminology. It is like the interpretation of the explanatory memorandum, when people felt there was a dilution of the staffing and financial commitments of the Office of Public Works. The intention is that these schemes will start this year. The design work is at different stages of preparation, but the schemes are being expedited and I have the assurance of the Office of Public Works that everything possible is being done to ensure that the paperwork is completed to enable them to go ahead. That is the intention. In terms of resources, there is no constraint on the works going ahead. I have already received an assurance from the Cabinet that the money will be forthcoming and the Government has already agreed that a Supplementary Estimate will be moved to enable the works to go ahead. You have my categorical assurance that the works will start this year, though I am not saying that they will be completed this year. That is only phase one.

In relation to the schedule, do I take it that you have identified 100 trouble spots nationally? Will you publish a list each year of the ones that will be given priority? How will priority be decided? To take one example, Senator Howard will be familiar with the case of Mrs. Shannon from Carron. She and her family have been out of her home since Christmas because of flooding. She does not appear on a list and is unlikely ever to appear on a list because there no catchment there. Her situation is catastrophic and she is dependent on the Red Cross.

Could the Minister indicate how things will work out? This section is making the main change to the 1945 Act and people want to know what the plan is likely to be for next year. Nine schemes were announced and some have been started, and up to £1 million or £2 million is going to be provided, but can announcements be made on a regular basis rather than in the haphazard way we seem to have at present?

Can the Minister clarify a point for me? Under the 1945 Arterial Drainage Act, the Office of Public Works could only carry out silt removal from a channel of the Shannon — such as the channel between Meelick and Athlone or short channels further up river, such as the Carrigeen Cut — in the context of a drainage scheme for the overall catchment. Under this section, if the silting seriously impeded the flow of water in a particular channel, is the Office of Public Works entitled to remove that silt under a scheme prepared for that particular channel rather than under a scheme prepared for the entire catchment of the river?

I refer to the point made by Senator Daly regarding the schedule, the fact that specific schemes were not included and that these were done by way of a Government press statement. The inclusion in the Bill of a schedule of works to be carried out would, by definition, exclude any other areas which might require attention. The Bill, therefore, intends to confer powers on the commissioners to work in any area where it might be necessary. In other words, we do not want to tie our hands or confine ourselves too much.

In relation to the programme of works for future years, the Senator is right. Approximately 90 to 100 areas have been identified as having recurring flooding problems. The intention is that these would be tackled on an annual basis taking the very serious cases this year, and then moving on, depending on the degree of gravity or the consequences of further flooding in the interim. The idea is to take on approximately nine or ten schemes each year and to do them on a phased basis. This would considerably reduce the ongoing hardship for people over a nine or ten year period. That is the purpose of this Bill and I have received a commitment from the Department of Finance that they will honour our commitments in that regard.

Senator Mullooly raised the question of silting of certain sections of the Shannon. It is possible to carry out desilting in certain places but a scheme has to be prepared which must take all the other aspects into consideration. There is little point in desilting one portion of the river thereby flooding another area downstream; all the downstream effects have to be taken into consideration.

Question put and agreed to.
Question proposed: "That section 4 stand part of the Bill."

Surely it is not outside the bounds of this Bill to allow a scheme to be drawn up to deal with a section of a river that has silted up. The Minister says you cannot do maintenance unless you do drainage but I do not follow the logic of that because we have joint maintenance boards that carry out maintenance but not drainage; such boards are not allowed to do drainage. One such is the River Suck Joint Drainage Board, a joint authority of Galway and Roscommon County Councils. That board is not legally entitled to carry out drainage yet it maintains part of the channel of the River Suck as well as a designated number of tributaries flowing into it, and it has to remove silt continuously.

Who did the Senator say continuously removes silt?

The joint board of the Suck continuously removes silt yet is not legally entitled to do any drainage and would be in breach of its terms if it did so. This point has been outlined on numerous occasions when people have attempted to extend the activities of the board to removing fords, rock basins and banks. Such attempts have been opposed by the engineering and administrative sections on the basis that the board does not have a legal entitlement to do it. Despite this, every year, the board has continued to remove silt from blocked drains and from the River Suck itself.

Maintenance of a river is separate from drainage. There are channels of the Shannon which are interfered with in a number of locations. I have identified one and Senator Mullooly has identified another. Currently, there is up to seven or eight feet of silt at Meelick Weir. According to local people and members of the Shannon Forum, the removal of that silt would alleviate flooding in the Clonown area. At any time of the year, up to 70 or 80 families in that area can be cut off from the town of Athlone. The legislation should allow for a scheme to remove the pile of silt at Meelick Weir, and if it does not, then I believe the spirit of the Bill would not be implemented. Such a move would not involve the drainage of the Shannon, nor do I want the drainage of the Shannon because that is not within the bounds of possibility. Surely this Bill will leave us in a position to remove what happens to be a mound of peat which has flowed down small rivers and channels which have drained 50,000 acres of bog and formed a large pile at Meelick Weir and at Carrigeen Cut as a result of drainage from the Mount Dillon bogs? It is reasonable to expect the legislation to do this.

If the Minister can give that commitment, agreement could be reached with Bord na Móna, the Office of Public Works and the local authorities to remove such mounds of silt. We would then have taken positive action to relieve the position along the bank of the Shannon at Clonown and along the Suck at Taughmaconnell, Creagh and Culliagh. The people in those areas have been silent and allowed Bord na Móna to drain 50,000 acres of peat into those rivers. They are now suffering the consequences and no one has come to their rescue. They believe this legislation will help them in a small way. If we cannot address the problem by removing two heaps of turf mould from the river bed at Meelick and Carrigeen Cut, we are reneging on the people in the catchment area of the rivers.

Does this section ask the Commissioners to prepare an environmental impact study, without stating so?

As I stated before, section 3 proposes to amend the Principal Act to provide the powers necessary to enable the Commissioners of Public Works to undertake drainage works and schemes for the relief of localised flooding from rivers and other watercourses, in addition to their existing powers to undertake arterial drainage schemes in the entire river catchments. In doing so, however, the Bill must also provide that it will be a requirement that any scheme for the relief of localised flooding must have regard to conditions elsewhere in the catchment concerned and any works done must have regard to their possible effects throughout the entire river catchment.

It is fine for Senator Finneran to say we only need to remove a mound of turf residue. However, in doing that it is crucial to put in place a scheme to determine whether there will be downstream effects. Such schemes are not inconsistent with the recommendations of the Browne drainage commission of 1938 to 1940, which are still valid. The commission said: "All future arterial drainage operations should be conducted on the basis of a comprehensive scheme embracing entire catchments and not otherwise".

In the execution of localised schemes it may not be always possible to guarantee that changes in the flow characteristics of a river arising from works will not result in a worsening of conditions elsewhere. It is however the intention to ensure that any unavoidable adverse impacts are taken into account before an order confirming a drainage scheme is made and that such impacts are kept to the absolute minimum. It will therefore be necessary to establish that the benefits accruing from works undertaken in one area are not greatly outweighed by the adverse affects which might occur otherwise.

Senator Finneran raised a problem which essentially arises from bogs and Bord na Móna. There is nothing in the Bill to prohibit a joint venture by the Office of Public Works and Bord na Móna to de-silt a river but it must be done in the context of the wider catchment area. That is not a catch, but it is provided that due cognisance must be taken of the downstream effects and what is likely to happen in the immediate area and the entire downstream area. Under section 6 it is envisaged that there will be a joint approach to de-silting; it mentions local authorities and other agencies, individuals and bodies.

In previous schemes, such as the Robe and Moy drainage schemes, certain sections were left out on the basis of cost analysis. Under this section can they now be included if finance is available?

The silting of rivers as a result of the activities of Bord na Móna has been raised. I come from a downstream area. If water is released from Senator Finneran's area it will flow down the Shannon and Senator Daly and myself will be confronted with a problem, but I will leave that aside for the present.

The Minister said Bord na Móna and the Office of Public Works could work together on these operations. I cannot understand why Bord na Móna does not have responsibility for removing an obstruction it created. The Minister mentioned the Browne Commission, which met in the late 1930s. Bord na Móna's activities started later than that and in the years since and it is those which caused the problems. If I put an obstruction in a drain or river flowing through my land and flooded someone upstream, I would be responsible for it. I am, therefore, not satisfied.

Senator Finneran seemed to indicate that the Minister was in some way responsible for this problem, despite the fact that relieving the problem in Roscommon might create another problem for those of us further down the river. Nonetheless, if Bord na Móna caused the problem, is it not legally responsible for rectifying the damage it has caused? Why are we skirting around the problem and providing Bord na Móna with a shield? If the silt came out of the bogs, the organisation responsible should remove the silt, irrespective of what may happen afterwards.

The connection between what we are discussing and section 4 of the Bill is tenuous. I find myself in agreement with Senator Howard. I am familiar with the area from Meelick Weir to Shannon Harbour because I spent many summers as a young person fishing along that stretch. I recall when that water was clear and one could see the bottom of the river, but it is quite a while since salmon were caught below Meelick Weir.

My point is related to Senator Howard's. Surely someone can intervene to prevent the passage of silt into the river? Those of us who farm beside rivers have responsibilities to prevent pollution, which are enforced by statute, and rightly so. I can understand chemicals getting into a river because they are in solution, but it is extraordinary that suspended matter is in the river. There must be a technical way to remove suspended matter from a watercourse, but I suspect those procedures have not been put in place. Has the Office of Public Works a role to instruct, prevent or stop Bord na Móna allowing this to happen? The damage has now been done, but if it can be stopped it should be.

I am concerned about the drafting of section 4 on the effects on the catchment. The section is not specific about what the defined effects are. Does it include the effects on the people? We can assume it refers to the environmental and other effects, but it may be subject to challenge at a later stage in the courts if it is not defined. What effects does the Minister envisage are covered by section 4 of the Bill?

If one takes the Minister's argument to its logical conclusion it would appear any temporary flooding problem in the catchment of the Shannon or the Suck cannot be addressed under this Bill. Where will the water from the Williamstown drainage scheme go? The water would normally flow into the catchment of the Suck, but on account of that adding to the problem at Meelick or the lower areas of the Suck or the Shannon, it cannot go ahead, according to the Minister's reply when I asked him if he could draw up a local scheme for the removal of turf residue at Meelick. If that cannot be done because it would interfere with an area downstream, how does the Minister propose to intervene in Castleplunket or Williamstown to take the water from there?

The Minister's argument cannot hold up for the implementation of any scheme, no matter how small, in the catchment area of the Shannon or the Suck. He has steadfastly refused to say that a scheme can be drawn up for the removal of a small amount of silt from the channel on the basis that it might impact downstream. This legislation will run into severe difficulties unless the problems I have outlined are dealt with.

Senator Kelly asked about the environmental impact assessment. An EIA is necessary; it is specifically required by the EC Environmental Impact Assessment Regulations, 1989, and certain sections of the regulations amend sections 4 and 5 of the Principal Act.

I hope the Minister will not go on to debate the next group of amendments.

No. Senator Kelly asked a specific question. I know the Senator has tabled amendment No. 4 and we will debate that in due course.

Senator Burke raised the question of whether one can take action on portions of the Moy, Corrib or Robe catchments drainage works — these have been valuable in bringing into agricultural production lands which were sodden or waterlogged — which were not included originally. One can. The explanatory note to section 8 of the Bill states that: "More than one drainage scheme may be prepared in relation to a catchment area or watercourse."

In response to the points raised by Senator Howard and Senator Dardis, the problem with silt on the Shannon is not entirely the responsibility of Bord na Móna, although it is a factor. Wherever there is water flow there is silt. We must look at the problem areas. If we can show that it is a Bord na Móna problem we can use our powers of persuasion as a statutory authority to encourage the offending agency to address the problem. However, a lot of the silt has accumulated having come downstream. Bord na Móna is obviously part of the problem and we will take up the matter with it to see where the balance lies in relation to the degree of responsibility.

As I said earlier, there is nothing to stop a scheme being done for a specific area provided cognisance is taken of the downstream effects. Not to take into consideration or evaluate such implications would be foolhardy. It has to be done. It would be irresponsible not to do so. It is not simply a case of alleviating the problem in County Roscommon and moving it downstream to County Clare, for example. One has to look at all the effects.

Senator Dardis asked what was meant by the effects on the catchment area. We have deliberately left the terminology loose because the effects can vary and circumstances and conditions can change. Primary effects would be possible flooding effects, environmental effects or any deleterious effect on an area.

Senator Finneran made the point that it is not possible to do the Williamstown area in isolation. It is possible to do any scheme. The scheme has to be drawn up first of all; one has to examine the possibilities. If it is a question of controlling water flows, than one does so. The Belclare scheme is up and running at present and we are controlling the sluice and the water levels. As that scheme was about to start we discovered there was problem with a wildlife sanctuary and bird watch in the area. We had to hold back and get the go ahead from the environmental agencies as to what could and could not be done.

Well done.

A satisfactory compromise was reached and the water is now gone, and, hopefully, everybody is now happy.

Well done to the Minister. He took the practical approach and a good job was done in Belclare.

Question put and agreed to.
Question proposed: "That section 5 stand part of the Bill."

This section is to be welcomed. It proposes to take significant steps in relation to the time factor. We have heard extensive argument in relation the time needed to prepare a scheme and the difficulties that might ensue. This section reduces from one month to 14 days and from three months to one month the periods of time for the preparation of the scheme and the consultation with local, authorities. It is significant progress. It puts the onus on the bureaucracy to act speedily and on the local authority to respond quickly and positively.

Any delays should be reasonable. The time factor set out here is one in which the work can and should be done. I hope this will prove effective in enabling the Minister and his Department to get the necessary preparation work done — environmental impact and engineering assessments — so that works can commence quickly.

Senator Taylor-Quinn is trying to justify why she voted against last time. The Minister is right here. Will he clarify whether this covers the Principal Act and this Bill?

Under section 5(1) of the Principal Act the commissioners are obliged where they have prepared an arterial drainage scheme for an entire catchment, first, to send a copy to the council of every county in which an existing drainage district to be affected by the scheme lies and, second, to publish in Iris Oifigiúil and one or more newspapers circulating in the area a notice to the effect that such a scheme has been prepared and will be placed on public exhibition at specified locations for a period of at least one month.

Section 5 (2)(c) of the Principal Act allows the county councils a period of three months within which to submit their observations to the commissioners in relation to such schemes. In the context of large-scale arterial drainage schemes, which often involve huge areas, the periods allowed for exhibition and consultation are reasonable. Where it is felt that they are too long, in the context of the smaller schemes envisaged for localised flood relief and in view of the urgent nature in many cases of these more restricted schemes and their more local extent, it is considered that one month in case of county councils and 14 days otherwise should be more than adequate. These issues affecting county councils have been discussed in detail with the Department of the Environment, which has raised no objection to the proposal.

Section 5(a) of the Bill deals with the reduction of the general publication and exhibition period in respect of schemes for the relief of localised flooding — as Senator Taylor-Quinn said — from one month to 14 days. Section 5(b) deals with the reduction of the time in which a county council will be allowed to submit its observations in respect of such schemes from three months to one month. There has been considerable curtailment. No change is proposed in relation to the publication or exhibition of catchment schemes. It is envisaged that the previous provision would apply to large catchment schemes.

Sitting suspended at 1 p.m. and resumed at 2 p.m.

Will the proposed changes create confusion? There is one set of dates for one scheme and another set of dates for the other. Would it be preferable to have a uniform system of dates rather than two different arrangements? I do not have any major problem once a scheme is prepared and ready for exhibition. The major problem I have about unnecessary delays is in the run up to the preparation of the scheme before it is ready for exhibition. We should ensure the message goes out that unavoidable and unnecessary delays in the preparation of schemes before the exhibition stage would not be desirable.

The point is well made by Senator Daly about the desirability of eliminating delays where possible. One has to differentiate between the two types of schemes. The schemes envisaged in this Bill relate to relief of flooding which does not involve large catchment areas. We are not talking about large scale arterial drainage works but about areas where there is evidence of recurring flooding. That is why it was decided to shorten considerably the exhibition and consultation periods. However, the Principal Act relates to arterial drainage and large scale catchment works. It would not be desirable to propose any changes to the publication of or exhibition time for catchment schemes because they are larger, more complex, more detailed and more costly. We are tailoring the exhibition requirements to the needs, provisions, extent and impact of the Bill.

Question put and agreed to.

An Leas-Chathaoirleach

Amendments Nos. 3, 4 and 6 are related and may be discussed together.

I move amendment No. 3:

In page 4, before section 6, to insert the following new section:

"6. The Commissioners shall, when constructing drainage or flood protection works, take such precautions and make such provisions as the Minister for the Marine and the Environmental Protection Agency may consider adequate for the protection of, and the avoidance of injury to, fisheries and the environment during or in consequence of the construction of such drainage of flooding relief works.".

The amendment provides that the commissioners should consult with the Minister for the Marine on fisheries matters and with the Environmental Protection Agency to ensure that no damage to fisheries or the environment arises from these proposals. Section 3 provides that the commissioners will take account of environmental and other matters. I believe this amendment is necessary.

Under the Arterial Drainage Act, the commissioners are not obliged to comply with fisheries legislation. This cannot be entertained any longer. The provision in the Act was that before undertaking works the commissioners would have to consult with the Minister for Agriculture who had ministerial responsibility for fisheries when the legislation was enacted in 1945. To the best of my knowledge the commissioners are not obliged to comply with the fisheries laws. It would be inconceivable that the commissioners would breach the fisheries legislation; nevertheless it is desirable to include this provision as a safeguard.

There has been an amount of consultation, discussion and dialogue between the fisheries authorities and the Commissioners of Public Works over the years. There are professional people here who were involved in the Feale drainage a few years ago. At the time the fisheries board objected to the issuing of the completion orders on the grounds that the fisheries had not been restocked to a desirable extent and this had left the Feale fisheries in a very depleted state. When the full effect of drainage on the Feale was felt, there was sizeable damage to the fisheries in the Feale catchment. However, as has been shown over the years, drainage does not necessarily damage fisheries irreparably. With proper restocking and account being taken of the fisheries during drainage, works can be put in place which enhance the fisheries. The Department of the Marine, in consultation with the Office of Public Works, eventually got the Feale salmon fishery back into a healthy state. The commissioners deserve some of the credit for the healthy state of that fishery today. It is probably one of the best-selling fisheries in Ireland.

However, that is the point I wish to make about this amendment. In the construction of schemes, especially minor schemes, where spawning beds and the removal of silt might be involved and where there might be damage to spawning stock at critical periods, it is vitally important that the commissioners consult and agree with the Minister for the Marine before any such works are undertaken. The Minister may well say that there is a contradiction between what I said previously about another section and what I am saying on this section. There is no contradiction — we are talking about two different things. Dealing with a flash flood in Sixmilebridge, where some sandbags or walls are urgently required to protect houses from being flooded, is totally different from undertaking a drainage scheme in a small catchment where there might be spawning salmon, or undertaking that work at a critical time.

This amendment seeks to ensure that the Minister will consult with the Minister for the Marine. I was tempted to put down an amendment repealing the power of the commissioners to undertake work without necessarily complying with the Fisheries Acts. There have been cases where damage has been done to fisheries during drainage work. There is no doubt that if an individual or a farmer or somebody living by the banks of a river carried out such work they would be prosecuted by the State. Perhaps this is a relic of the 1945 legislation, but it should be looked at carefully. That is why I propose this amendment. The Minister should accept it.

The Minister will know that amendment No. 3 is in my name as well as Senator Daly's. This is the most important amendment that has been put down. I am amenable to suggestions that it be inserted in other parts of the Bill or that the substance of the amendment be inserted. However, it is extremely important that we institutionalise a requirement in law to protect the environment.

We are all aware that although historically the Office of Public Works did good work on the drainage schemes, there were serious environmental consequences in the large catchment schemes. Earlier the Minister made the point that the raison d'être for the schemes was to bring agricultural land into production. I do not dispute that. At the time there was a tremendous national drive to increase agricultural productivity; the ethos of farming was to produce as much as possible from the land. There was, therefore, pressure on land, and people wanted more land. A good way of improving the land was to engage in these schemes. However, we must accept that there were serious consequences. In these days of set aside and so forth the pressure on land is not nearly as great and for that reason we must be careful.

I view this matter from the perspective of angling. I am aware, as is the Minister, of what happened to the Moy from that perspective. It is only now that the Moy has resumed its place as one of the premier fisheries in Europe. This matter is also relevant to amendment No. 6, which deals with the problem of spoil. The environmental damage to the landscape caused by some of these schemes was considerable and the Moy is a case in point. Another one that comes to mind is the Barrow, near Monasterevin. Huge mounds of earth were built up beside the stream and were just left there. There must be some way of disposing of it. Farmers in some of these catchment areas have approached me to ask what can be done about it. The local authority, the joint drainage board and the Office of Public Works have washed their hands of the problem, so it appears to fall to the farmer to spread the spoil.

One could argue that the land has been improved and that as a result farmers are gaining land. Nevertheless, from a national point of view it is highly undesirable that these canals should be created and that banks of spoil should be left and not disposed of in some way. I am flexible about this, because it is difficult to draft a suitable amendment to outline how it should be done. I have suggested a minimum depth that could be spread across land, but I am amenable to suggestions as to how the matter could be dealt with. However, it should be dealt with.

With regard to consulting with the Minister for the Marine and the Environmental Protection Agency, the Minister will say that European regulations or directives impose a requirement on us to carry out an environmental impact study before a scheme can go ahead. That is not good enough. I want the provision to be included in legislation. I can think of several instances of the EU directing us to do certain things which were not done. It can take years to bring the Government to fulfil those requirements. Senator Norris would have particular experience of this problem in another area.

I realise that this is related to what is contained in section 3. However, section 3 only states that "it shall be lawful for the Commissioners to prepare a make such engineering, environmental, valuation and other surveys of the said area as shall appear to them to be necessary or expedient.". That is too broad for my liking. The phrase "as shall... be necessary or expedient" gives them great scope to decide what they regard as necessary or expedient.

There appears to be an enormous inconsistency between what might be proposed under a drainage scheme and our promotion of, for example, tourism. We regard our waterways as a premier tourist asset; and from a purely economic standpoint, apart from an environmental standpoint, it makes eminent sense to ensure that the resource is protected. I would be flexible about whether it should be the Minister for the Marine or the Central Fisheries Board who should be consulted. I will await the Minister's response with interest.

There is a remarkable inclusion in the compensation proposals submitted by the south Galway flooded victims action group. The proposals talks about drainage as the ultimate solution to all the problems. The submission discusses certain procedures and one of the them — this is suggested by people who have been directly and catastrophically affected by flooding — is the "compiling of an environmental impact study on the proposed scheme and the consequential necessary amendments to the scheme". It is quite remarkable that people in that situation should think of including such a provision in the proposals they have made. They are to be complimented on it. After being so close to a disaster, they could see that even in those circumstances there must be protection. They deserve enormous praise for including that proposal.

We come back to the point about the necessity to do something that is rapid and effective and to achieve a balance between that and protecting the environment. Senator Honan and I did not vote for amendment No. 2, proposed by Senator Daly, although we were in the Chamber. I accept all of what the Senator said, including that there must be a rapid response. I also accept that he was speaking not of large schemes but of specific local problems. However, I accepted the Minister's explanation that it was a matter for the local authority to deal with this matter rather than have it included under the scope of the scheme. From that viewpoint we abstained from the vote on the amendment because it states: "...without the necessity of preparing a drainage scheme.". I do not see how the safeguards can be built in unless the drainage scheme is prepared.

However, I appeal to the Minister to ensure that it is enshrined in law that there is a solemn responsibility imposed upon those who are preparing these schemes to see to it that the environment is protected because apart from the citizens who live in our country, the environment is an enormous asset from a tourism and every other viewpoint. Furthermore, on the basis of what was done to some of our waterways, I am fearful of the consequences.

We are all very concerned with protecting the environment and ensuring that the main priority with regard to any work undertaken by any public body would be that no aspect of the environment is damaged. This is something which permeates all public authorities. The level of awareness among the public with regard to environmental issues has increased dramatically in recent years and must be commended.

I am surprised to see Senator Daly's name appended to the amendment, because it is contradictory to amendment No. 2 in his name, regarding emergency situations. The Minister outlined in the course of the debate this morning the necessity of not doing something in a rapid response situation because of the danger of impacting detrimentally on the environment. I understand what Senator Dardis and Senator Daly are about and the thinking behind the amendment. However, it does not make any sense. It states: "The Commissioners shall, when constructing drainage or flood protection works...". Construction involves construction work on the ground and that is not the time when the Minister for the Marine or the Environmental Protection Agency should be consulted. All these aspects must be examined beforehand. It is important, therefore, that an environmental study be undertaken prior to construction work commencing as it would be ludicrous to consult afterwards. This aspect is covered under section 3 of the Bill, where the Commissioners shall "...make such engineering, environmental, valuation and other surveys of the said area as shall appear to them to be necessary or expedient.". In addition, under EU Directives, this environmental assessment work must be undertaken, and the role of the Environmental Protection Agency is to ensure this. To accept the amendment in its present format would be very unwise in the interests of the environment because consultation should take place prior to construction.

Even if all these mechanisms and safeguards from a variety of areas — whether they emanate from EU Directives, the Environmental Protection Agency or section 3 of the Bill — were not in place we must consider the record of the Office of Public Works with regard to environmental matters, where it is apparent that except in the most isolated of instances it has had a very fine record with regard to protecting the natural, physical, architectural and heritage environment. In view of this it would be unwise to proceed with the amendment.

I support the concept behind the amendment, although I do not know if the wording is the most suitable. The Minister cannot but be impressed with the extent of the concern for environmental issues regarding the Bill within the Seanad. Again, Senator Dardis has pointed out the concerns of the inhabitants of the various areas which are to be drained.

It is most important to remember that not only are our wetlands important for us; they are also very important internationally. For example, they provide some of the most important winter feeding grounds for the brent-goose and other ducks and geese which migrate here to get over the harsh winter in Greenland and so on. In addition. Senator Daly's point with regard to the fisheries is very important. I understand that unauthorised drainage in the area near where the Senator comes from had a disastrous effect on oyster beds because there was a rapid flood of fresh water into an area where it was essential that salt water continued. The conflicting interests in the Bill must, therefore, be carefully considered.

I also support the amendment, together with amendments Nos. 4 and 6. Amendment No. 4 would take care of Senator Taylor-Quinn's reservations regarding the amendment as it calls for an environmental impact study to be prepared before the commencement of work. Section 3 provides for an environmental impact assessment to be undertaken, but our concern is that it is only "... as shall appear to [the Commissioners] to be necessary or expedient.". If they did not believe it to be necessary or expedient, it would not be carried out. This is why these amendment have been put down.

All of us are of the view that it is essential, where drainage works are undertaken, that the immediate purpose of flooding relief does not outweigh the environmental impact and the danger to fishlife in rivers. In my own area, the Barrow Drainage Board has come into conflict with the fisheries board and local angling groups, because in its rush to relieve flooding it has destroyed large sections of the river and has caused damage further downstream at Monasterevin and Carlow. In addition, it has destroyed much of the fishlife in the rivers which has been built up over the years by fishermen. Even where such fish life has been destroyed due to pollution kills and so on, the fishermen have returned again and again and tried to build it up, but now they are seeing much of this work being destroyed by flooding relief works.

It is a pity to see local authorities and bodies on behalf of local authorities being in conflict with the likes of angling groups and environmental protection groups because all of us should be concerned about protecting our environment for future generations. I am aware that the Minister is especially concerned about this area, but when introducing legislation we should enshrine these provision in the Bill rather than leaving it to the discretion of individual bodies who may or may not do what we want.

It is important to consider the historical heritage, including archaeological sites which may be along the banks of rivers, because many of the earlier settlers in Ireland deliberately used river banks as locations for the establishment of habitations. Some of these areas would, therefore, be in need of protection. It is not mentioned in the Bill and I ask the Minister to give an undertaking that the Commissioners will take these factors into consideration when carrying out studies.

There appears to be some confusion, especially with regard to the views expressed by Senator Dardis, as to what exactly is intended in the Bill. The Bill deals with localised flooding as opposed to major drainage of a catchment area, which is provided for already.

Section 3 states "... for the execution of such works and for that purpose to make such engineering, environmental, valuation and other surveys of the said area as shall appear to them to be necessary or expedient.". Obviously an environmental impact study would have to be carried out in all cases and I do not see the need to state that any further than is stated in the Bill. While I had some concern with Senator Daly's amendment, all he is asking for is a discussion with the Minister for the Marine. I cannot see why the Minister would not accept that because that discussion will take place in any event; it would be absolutely necessary that it would take place.

I want to ask the Minister a specific question because we should try to get to the nub of the issue. We are not dealing with any major drainage of catchment areas that are not included under the 1945 Act and we will not be doing any major drainage works for the next ten years. What new major drainage catchments will, be dealt with over the next ten years based on the progress that has been made over the last decade? Since we have not been allocated any money from the European Structural Fund for new major drainage works, we can conclude that drainage is at an end. Work has been done on a few catchments over the last number of years at a slow pace, mainly because of lack of money. We have come to the end of major drainage works in this country.

Reference was made to draining the River Shannon; indeed, the Dunkellan was drained in my part of the country. If this were done, it would require a major environmental impact study because, as Senator Henry said, there could be a danger to the oyster fisheries. However, I want to point out to the Senator that there is absolutely no evidence that any damage has been done to the oyster fisheries in Clarinbridge as a result of the small amount of work that was carried out there. I have no doubt that if a major catchment area drainage programme was conducted on the Dunkellan River, one would need a major environmental impact study because it would impact negatively on the Rashane in Turlough, which is one of the most important wildlife sanctuaries in the country.

We would also need to conduct a major study of the effect it would then have on the oyster beds in Clarinbridge because of the higher volume of water. However, that is a totally different issue from what we are discussing in this Bill. Senator Dardis is mixing up two points. While we all agree that there must be a careful examination of the impact of such work on the environment, it is not necessary to have a study.

I have heard a number of contradictions since this debate began and I had to smile at some of them. The Minister has argued that a scheme must be prepared and that all these matters must be taken into account. We all agree with that, but the Minister did what I am suggesting in these nine areas. However, that is not consistent with what he is saying in this Bill about ecological and environmental impacts and the downstream effects. What the Minister will do in Gort this year will have a downstream effect just as taking silt from the spots in the River Shannon will have a downstream effect, but this effect has been used repeatedly by the Office of Public Works as an excuse not to do things when it did not suit them — which meant if the money was not available.

Work has been done on a scheme in Belclare and the Minister is planning eight more such schemes. He is doing exactly what I am advocating. When such a job is done in Gort, there will be a downstream effect on the swallowholes and when these swallowholes are tackled this summer, that too will impact on certain things.

With a common sense approach and careful planning, there does not need to be a negative effect. As Senator Dardis said, there is no need for an environmental impact study. The Minister did an environmental study in Belclare and was satisfied, and rightly so, that the impact would be minimal. The water is being controlled rather than being drained, which is all I ask for south Galway. Consequently, I ask Senator Dardis to carefully consider whether he should push this amendment because I do not believe it is necessary.

An earlier point today someone accused Senator Fahey of being confused and he said he was not. Now he said I am confused on this matter. I am not confused. As far as the contradictions are concerned, if the Senator accepts that there is a downstream effect, I do not see how he can then say that there should not be an analysis of what its effects might be, which is what we are asking for.

I meant downstream from the river.

Of course; I do not mean anything else. I am also aware of the fact that this Bill is talking about local flooding and not large catchments. There can be just as a serious an effect from dealing with that matter as there can be from a large catchment.

For instance, Lough Conn is within a large catchment, but it has been proven that phosphate levels in that lake have increased and the finger has been pointed primarily, not at the local authority sewage scheme, but at agriculture. I went fishing in Lough Conn last weekend and it was good, but I also fished in it last September when there were filmentous algae all over the lake. There are many small holdings around the lake where the drains have been lowered thus making it much easier for the water to get into the lake, which is desirable from an agricultural point of view. However, it could also be argued — and I do not know the answer — that it makes it easier for the phosphates to get from the land to the water. Somebody somewhere can and should attempt to answer that question. I am not at all confused about the difference between a large full catchment scheme and a smaller one but I am saying that a smaller scheme can also have detrimental effects.

I do not know if Senator Fahey was here when we proposed the original amendments, but I did say that I accepted what the Minister told me earlier. The local authority could deal with the immediate problem and then it was a matter to prepare a scheme which, by definition, would take somewhat longer to set up.

We are all ad idem on what we are trying to achieve here, which is to get the correct balance in terms of what the law seeks to do and in protecting the environment as a consequence of any works that might be carried out under this provision. Senator Henry put it well when she talked about the need to ensure that wetland preservation should be an integral part of any of our considerations henceforth.

However, there is no need to go ahead with any of these three amendments. First, on the need for an environmental impact assessment or study, the point has already been made by Senator Taylor-Quinn that this is already provided for, in clear terms, in section 3; it is also provided for in European legislation and directives and that these impact, impinge and have had to be taken on board by the Principal Act.

Article 16 of the European Communities Environmental Assessment Regulations, 1989, amends section 4 of the Arterial Drainage Act, 1945. The terms are clear and specific:

The Arterial Drainage Act 1945 is hereby amended by

(a) the substitution for "engineering evaluation surveys" in section 4 (1) of "engineering environmental and evaluation surveys", and

(b) the insertion after section 4 (2) of the following section:

Every drainage scheme which would involve the execution of drainage works of a class or time specified under Article 24 of the European Communities Environmental Impact Assessment Regulations, 1989, or under any provision amending or replacing the said Article 24 shall contain as a schedule annexed thereto, in addition to the matters set out in subsection (2) of this section, a statement of the likely effects on the environment hereinafter in this Act referred to as the environmental impact statement of the proposed works.

It goes on to be more specific. Subsection (c) says:

The insertion after paragraph (a) of section 5 (1) of the following paragraph:

Where, in accordance with section 4 (2) (a) of this Act, the scheme contains an environmental impact statement, it must send a copy of the statement to such bodies as maybe prescribed by the Minister by regulations indicating that observations may be sent to the Commissioners in relation to the effects on the environment of the proposed drainage works within such period as may be specified, not being less than one month after the sending to the body concerned of the statement.

That is part of the Principal Act, the 1945 legislation, and we are tied by it. Senator Dardis mentioned the commitment of the European Union to the enforcement of environmental considerations and provisions. Anybody in a local authority will tell the Senator that where there is an environmental consideration now people look to Brussels. One local authority disregarded a particular environmental regulation and found that the powers of Europe in relation to the enforcement of environmental provisions were so wide that the road allocations for the county involved came under threat. Once a European regulation is infringed, the possible penalties, costs and consequences can extend beyond the environmental considerations to any aspect of funding that comes from Brussels.

The provision contained in the amendment is already in the Principal Act as amended and in sections 3 and 4 of the legislation before the House. The intention of the amendment is quite clear but I do not see much point in taking it on board if it is already provided for under European and national legislation. The Bill itself will be enforced rigorously. Where there is a downstream consequence the Office of Public Works is obliged to ensure that all aspects of the regulations, environmental and otherwise, are complied with so that no infringements take place and our heritage is preserved.

Senator Kelly asked whether we are obliged to take cognisance of all sites, historic, architectural and so on; of course we are. That is prescribed by the Bill. Both the wildlife and heritage aspects of our culture are now under the aegis of the Minister for Arts, Culture and the Gaeltacht, Deputy Michael Higgins. I should have made it absolutely clear that this provision is copperfastened within the existing legislation and that we are tied by European and national legislation.

In relation to Senator Daly's amendment which deals with the possible consequences of drainage work for fisheries, the Office of Public Works is also obliged under sections 7 (1) and 10 (2) of the Principal Act to consult widely, including with the Ministers for the Marine and for the Environment and specifically — it is important to understand this — to take "such precautions and make such provisions as the Minister for the Marine may consider adequate for the protection of and avoidance of injury to fisheries.". It is clear that there is a consequent obligation to consult with the Minister for the Marine. The obligations which will be imposed will be clear, specific and binding and they will be adequate to protect fisheries, fish stocks, spawning beds and so on.

In relation to the issue of spoil, which is the subject matter of amendment No. 6, Senator Dardis is correct to an extent. People have seen mounds of spoil on riverbanks but that is a thing of the past. If the Office of Public Works carries out works then it must make provision for the spreading of spoil. In some cases the owners themselves, because there is a compensation element, spread the spoil. The Senator ties in the level of spoil——

A figure of 50 cm was suggested.

That is right. It is very difficult to be specific about amounts because of humps, hollows and quarries in the landscape so I do not think it is possible to be tied to that. However, mounds of spoil on riverbanks are a thing of the past. Now it is spread environmentally; we are obliged to spread the spoil from now on. While the intention of the amendment is clear and good, the obligation to do so is already part of our remit.

In regard to amendment No. 3, while I appreciate that there is a consultation process in section 7 of the Act, it is not adequate and needs to strengthened. I will be pressing this amendment.

I accept a lot of what the Minister says but we could all cite cases where regulations or directives were not complied with and people had to go to the European Court to seek recourse and it still took years for them to be implemented. I am also aware of the fact that a regulation is different from a directive and does not have the same force. I am not worried about the EU's commitment to protecting the environment but I am worried about our commitment and how that will be exercised. I am confident that the EU would come after us if some of the regulations or directives were not complied with, but that process takes time and the damage is done at that stage. If, as the Minister suggests, the amendment is not necessary then the provision at the bottom of section 3, which I have already said I do not like, is not necessary. What is the nature of the obligation in respect of spoil? Is it a legal or a moral obligation? Who is responsible? Am I correct in assuming that it is the Office of Public Works's responsibility to clear the spoil and not the landowner's, unless he agrees?

I want to take Senator Dardis's measurement of the level of spoil.

We are prepared to be flexible on that.

Then that is not necessary. I want to discuss what is implied here by Senator Daly and Senator Dardis. Before pressing these amendments, both Senators should cast their minds back to the many occasions earlier this year when we discussed the subject of flooding, which has resulted in this legislation. Pressure was greatest when people were flooded out of their homes and their belongings destroyed. The water has now gone from their homes, although there are cases in Senator Fahey's and in my areas where people will never again be able to inhabit their homes. If I, or anyone, suggested at that time when legislation was being sought to deal with the situation that we should build in a raft of reservations and opportunities to delay the implementation of what was intended, Senator Daly would be the first man to take me on.

What is being sought here is more than adequately provided for. I am concerned that there are too many opportunities for organisations — some will say rightly so — and for individuals, even crackpots, to avail of the option provided to prevent the people whose homes have been flooded from being dealt with. I believe that is an unreasonable attitude to pursue. I believe the concerns of the Senators are more than adequately catered for. It is not fair on those whose homes have been flooded and who stand that risk again unless remedial action is taken, that we are attempting to include clauses and amendments which would provide for the further delay of the remedial action required.

I do not know how often we have to say this, but I repeat again that there is no dispute about the need for remedial action. The legislation is not about remedial action; it is about preventing this from recurring, which is a different issue.

I do not dispute what Senator Dardis is trying to achieve. We should have made it clear on Second Stage that it is provided for in existing legislation. The 1945 Act did not include it, but subsequent statutory instruments imposed from Europe necessitated the amendment of it. Therefore, they are now enshrined and copperfastened in that Act and they effective.

As regards the disposal of spoil, we have acknowledged what happened in the past but we cannot revisit past sites. We are talking about future operations. The business of environmental assessment automatically looks after that. There is a commitment on the part of the Office of Public Works that where works now take place, the entire aspect of spoil and spoil distribution levelling will be dealt with. As regards the method itself and the defect in the amendment, although its spirit is all right, it is too prescriptive in relation to copperfastening the levels and amounts at 50 cm and so on. The Senator will appreciate that on that basis we cannot accept it.

As regards Senator Daly's amendment, surely this is not the time to press an amendment? As I pointed out earlier, a consequent obligation is already written in stone in relation to what we have inherited from other legislation. Under sections 7 (1) and 10 (2) of the Principal Act the commissioners are obliged to consult widely, including the Minister of the Marine and the Minister for the Environment. It states: "to take such precautions and make such provisions as the Minister for Agriculture may consider adequate for the protection of and the avoidance of injury to fisheries". Nothing could be more clear, prescriptive and effective. I do not see the need to press this amendment.

It would not be necessary to do this if the commissioners were obliged to comply with the Fisheries Acts, but they are not. I do not have the Act before me but a section specifically provides that they are not obliged to do so. I am not satisfied with this vague situation. If the Minister has time to look at it he will see I am correct.

They are obliged. Section 10 (2) of the 1945 Arterial Drainage Act states:

Notwithstanding the exemption conferred by the foregoing subsection of this section, the Commissioners shall, when constructing drainage works in pursuance of a drainage scheme, take such precautions and make such provisions as the Minister for Agriculture may consider adequate for the protection of and avoidance of injury to fisheries during or in consequence of the construction of such drainage works, provided that the said Minister shall, in consultation with the Commissioners, satisfy himself that taking such precautions and making such provisions will not cause substantial detriment to such drainage works or substantial hindrance to their construction.

Could the Minister go back to the foregoing exemption, because that is what they are exempt from complying with?

I read the section to the Senator.

Amendment put.
The Committee divided: Tá, 24; Níl, 28.

  • Bohan, Eddie.
  • Byrne, Seán.
  • Daly, Brendan.
  • Dardis, John.
  • Fahey, Frank.
  • Farrell, Willie.
  • Finneran, Michael.
  • Fitzgerald, Tom.
  • Honan, Cathy.
  • Kelleher, Billy.
  • Kiely, Dan.
  • Kiely, Rory.
  • Lanigan, Mick.
  • Lydon, Don.
  • McGennis, Marian.
  • McGowan, Paddy.
  • Mooney, Paschal.
  • Mulcahy, Michael.
  • Mullooly, Brian.
  • O'Brien, Francis.
  • O'Kennedy, Michael.
  • Ormonde, Ann.
  • Roche, Dick.
  • Wright, G.V.


  • Belton, Louis J.
  • Burke, Paddy.
  • Calnan, Michael.
  • Cashin, Bill.
  • Cosgrave, Liam.
  • Cotter, Bill.
  • D'Arcy, Michael.
  • Doyle, Joe.
  • Enright, Thomas W.
  • Gallagher, Ann.
  • Henry, Mary.
  • Howard, Michael.
  • Kelly, Mary.
  • McDonagh, Jarlath.
  • Magner, Pat.
  • Maloney, Sean.
  • Manning, Maurice.
  • Naughten, Liam.
  • Neville, Daniel.
  • Norris, David.
  • O'Sullivan, Jan.
  • Quinn, Feargal.
  • Reynolds, Gerry.
  • Sherlock, Joe.
  • Taylor-Quinn, Madeleine.
  • Townsend, Jim.
  • Wall, Jack.
  • Wilson, Gordon.
Tellers: Tá, Senators Mullooly and Fitzgerald; Níl, Senators Cosgrave and Magner.
Amendment declared lost.

I move amendment No. 4:

In page 4, before section 6, to insert the following new section:

"6.—Before commencing work on a drainage scheme the Commissioners shall prepare and publish an Environmental Impact Study.".

Amendment put and declared lost.


Amendment No. 5 is out of order as it involves a charge on the Revenue.

Amendment No. 5 not moved.
Question proposed: "That section 6 stand part of the Bill."

The purpose of putting down amendment No. 5 was to endeavour to define clearly that it was possible for the Minister to enter into arrangements to undertake joint ventures with other agencies, individuals or local authorities. As the Minister has been well aware from the debate here, there has been an amount of discussion on the involvement of Coillte, Bord na Móna and other State agencies in works of various kinds which create some environmental and drainage problems. The section clearly sets out that the costs of dealing with some of these problems can be organised between agencies. Departments, individuals and the Office of Public Works.

Can a joint venture be put in place between, for instance, Bord na Móna, the Office of Public Works and a local Leader programme to undertake a scheme? While it could be possible to organise the funding of it, it is not clear that the execution of it can be undertaken. This was why I suggested that it be specifically written into the Bill that the preparation, maintenance and execution of schemes could be undertaken under this section and the actual physical work done. Therefore, if the Office of Public Works organised a scheme and called in the local authority, who would provide plant and machinery, and if Coillte and Bord na Móna could deal with some of the problems in the midlands, they should be able to physically co-operate together to get the work done rather than defraying the cost of doing it.

Does the Minister envisage that joint drainage boards could have arrangements or agreements with the Office of Public Works for specific works? In most if not all cases — certainly in the cases I know — the responsibility, obligation and terms are confined to maintenance. Local authorities and joint drainage boards have identified and are identifying sections which need dredging and are contributing to flooding. The authority does not lie with drainage boards to remove, say, 30 yards of rock in a river. Does this section allow an arrangement between the Office of Public Works and a joint drainage board? If it does, it could be very beneficial to the works which are being undertaken by some of those boards and would complement them very well. I am sure the Minister's officials can confirm that there are scores of requests made to the Department of Finance, the Office of Public Works and the Minister for some funds to alleviate certain areas of flooding. The stock answer which has been given is that responsibility for this lies with drainage boards. These boards are only responsible for maintenance. They cannot legally remove a rock section from the bed of a river. Such rock sections are destroying all the other good work being done by boards in many of the rivers I know.

I have similar problems with drainage boards. There are a number of rivers in County Leitrim where drainage boards are carrying out work, but problems are being caused further down the line because they cannot dredge and remove rock. It would be beneficial if there was anything in the Bill which could alleviate this problem. I welcome the way the Minister has handled the legislation. The sort of large of drainage works which have been carried out previously, such as the Bonnet in County Leitrim, which resulted in a large cost to the Exchequer, possibly will not happen again.

There is always a great deal of water in the Owenmore-Arrow River in Sligo, with which Senator Daly is familiar. Rather than having a huge drainage scheme carried out, the farmers of the area would be happy if the river was just dredged. It would alleviate a huge problem. This is the kind of thing the Bill is about. Under this section the local authority or some of the semi-State bodies may be able to co-operate in a drainage scheme like that which would be useful.

The points raised by Senators Daly and Finneran are directly related in that they seek clarification as to who can enter into joint ventures in terms of the spirit of section 6 of the Bill. Senator Daly asked specifically whether for example, agencies such as Bord na Móna, a Leader group and local co-operative groups could do so. That point was also raised by Senator Fahey. The answer is yes, and I gave the same reply to a query by Senator Dardis. The intention is that once the work is being executed in consultation with the Office of Public Works, provided approval has been obtained from the Office of Public Works, we can either authorise people to do the work themselves or by way of joint venture involving the Office of Public Works or agencies. There is no problem in doing works.

In relation to Senator Finneran's related query as to whether or not joint drainage boards could be involved, the actual section refers to "one or more persons", so one can deduce from that that a drainage board is composed of more than one person. There is provision in the Bill to enable drainage boards to enter into joint ventures with the Office of Public Works or other agencies to undertake works.

As I pointed out earlier following a query from Senator Burke, section 8 of the Bill specifies that more than one drainage scheme may be prepared in relation to a catchment area or a watercourse. It is worth going back to section 43(1) of the Principal Act, the Arterial Drainage Act, 1945, which says

Whenever the Commissioners are authorised by or under this Act to execute any drainage or other engineering or building works they may, in lieu of executing such works themselves or by their officers or servants, contract with the sanction of the Minister with any person for the execution of whole or part of such works by such person and may for that purpose enter with the sanction of aforesaid into such contracts and agreements as may be requisite.

So the Act prescribes that, and we inherited this legislation in terms of what we are enshrining in the Bill today.

Senator Reynolds asked if large catchment or arterial drainage works were a thing of the past. In my contribution to the House on Second Stage I said that they may not be a thing of the past, not that the Office of Public Works wants to get involved in heightening people's expectations. We made the point forcibly that, from the point of view of drawing down EU financial support, the days of bringing huge catchment areas into agricultural production is a thing of the past. But there is a general acceptance that from the point of view of environmentally friendly organic farming there may in future be merit in designing such schemes which could well come back into vogue and become part and parcel of the Office of Public Works's remit. It is something that many us would not object to.

On reading the section it looks as if the costs are just covered. Somebody, however, might say that this really provides for a deal on costs, but the actual physical work is not being covered.

I can assure Senators that the intention and interpretation, as I specified in the House today, are that we are talking not simply about costs but also about the 1945 Act, which mentions the actual execution of the works.

That is fair enough.

Question put and agreed to.
Section 7 agreed to.

Amendment No. 6 has already been discussed with amendment No. 3.

Amendment No. 6 not moved.
Section 8 agreed to.

Amendment No. 7 has already been discussed with amendment No. 1.

Amendment No. 7 not moved.

Amendment No. 8 has already been discussed with amendment No. 1.

I move amendment No. 8:

In page 5, subsection (1), line 29, to delete all words after "embankment" and substitute the following:

"coastal and estuarine incursions or other works that has or have been completed pursuant to a drainage scheme, or pursuant to section 3(2).

I want to clarify the situation regarding coastal areas because we have not had much discussion today in relation to culverts and estuaries.

This amendment has already been discussed with amendment No. 1. Is it being pressed?

I want to clarify the situation with the Minister of State.

You cannot do so on that amendment, but you can talk about it on the particular section.

Amendment, by leave, withdrawn.
Government amendment No. 9:
In page 6, subsection (5), line 15, after "may be" to insert "on which".

This is a textual change to insert two words for the purposes of clarification.

Amendment agreed to.
Question proposed: "That section 9, as amended, stand part of the Bill."

I wish to clarify the situation in relation to estuaries. The Minister will be aware that erosion problems have arisen in many estuaries. Tidal movement over the years has seriously undermined protections that were built 30 or 40 years ago. In the case of some coastal culverts which have also been affected by erosion, there is not a huge amount of expenditure involved. However, because some of them were carried out under the old Land Commission schemes, with the participation of local farmers, it has not been possible to define precisely who was responsible for their maintenance and repair. Several culverts on the west Clare coast have been severely affected by erosion, and the irreparable damage has left many hundreds of acres of land flooded in winter and springtime. Up to now nobody has taken responsibility for them.

The Minister will quote the Coastal Protection Act, which has not been used to any great extent, mainly due to its cumbersome implementation. Only when a local authority passes a motion can work be undertaken on these coastal sluices. At that stage the Coastal Protection Act comes into play and its sections are used to deal with such matters. However, it is cumbersome and involved, and is a tiresome way of doing things. That Act is also the responsibility of another Ministry, the Department of the Marine, which adds to the confusion. Can the Minister clarify that under this Bill it will be possible, in specified and precise cases, to take responsibility for having some of these works done?

What is the position of people downstream from an improvement work? How will they be notified what improvements will be made? In his press release the Minister mentioned high priority areas, one of which is Dunmanway, my home town. I have had inquiries from people who live downstream from where it is hoped works will be carried out to alleviate flooding. How will these people be notified?

Section 9 is designed to deal with situations which arise from time to time, where modifications are made or proposed by landowners and others to channels and embankments which form part of schemes undertaken by the commissioners and for which they now have maintenance obligations. Section 9(1) introduces a new definition applicable only to this section and section 10 — that is, a definition of the term "relevant works"— and simplifies succeeding references in both sections to watercourses, embankments and other areas on which works are being carried out pursuant to a drainage scheme.

Section 9(2) introduces a new provision lacking in the Principal Act, whereby the commissioners may consent to the alteration of channels or embankments where they have previously carried out a scheme. In view of the changing uses of land, the extent of development of housing and industry and other urbanisation not envisaged 50 years ago, such changes may be desirable and I think we must cater for them.

Section 9(3) deals with the issues which might arise in circumstances where the commissioners have or have not given their consent under the previous subsection to the alteration or modification of works. It allows them to either reinstate them or maintain them as modified. The apparent contradiction in the modification of the provision for reinstatement, even where prior consent to modification, etc., had been given, is easy to explain. Unforeseen and changing circumstances between the granting of permission and the execution of the change in the regime — such as developments elsewhere, or increased unforeseen flooding — might therefore necessitate reinstatement at a future date.

The remaining parts of section 9(3) permit the commissioners to maintain any works modified, relocated or altered as if they were part of a drainage scheme carried out by them and applies the provisions of the Principal Act to such maintenance. Among the main provisions of that Act are sections 31 and 38 under which there is an obligation on the commissioners to maintain completed schemes in proper repair and effective condition.

Section 9(4) and (5) provide a mechanism whereby the costs incurred by the commissioners in reinstating what we call relevant works — those modified, relocated or altered without their consent — can be recouped from the offending parties. For this purpose the owner of the land where the modification took place will be deemed — unless and until the contrary is established — to be the person who carried out the modification in question. In this connection it is reasonable to assume, in the absence of any contradictory information, that such owners would at least have consented to the modification in question without reference to the commissioners. The method of recovery of costs — for example, by means of a simple contract debt in any court of competent jurisdiction — is a standard provision.

Senator Daly mentioned the confusion about coastal protection. Unfortunately this happens in many Acts where several agencies interface with each other and one has to hark back to previous legislation to see who has power to enforce and where obligations arise. In this area, if the amendment put forward earlier by the Senator was accepted, it would require a transfer of functions from the Minister for the Marine to the Office of Public Works and would, therefore, involve amending the previous legislation. People will acknowledge the main authority on coastal affairs has to rest with the Minister for the Marine.

In answer to Senator Calnan, the Bill provides for a consultation process and an exhibition period, albeit a shortened one, to deal with emergency flooding problems.

I do not wish to go back over our discussion on the operation of the Local Authorities (Works) Act, 1949, and the relationship between the local authorities and the commissioners in this instance. However, establishing where responsibility lies between the Department of the Marine, the Office of Public Works and the local authorities in the coastal protection legislation involves another day's work. Since the Minister is chairing the sub-committee, will he see whether the Coastal Protection Act can be modified to deal with these circumstances? I would be satisfied if he could give an assurance to do that.

This area is not easy to deal with because of the multiplicity of legislation and the various responsibilities of different Ministers. Nevertheless there is an acute problem which will not go away and will involve huge expenditure in the next few years unless immediate action is taken. The Coastal Protection Act is cumbersome and needs a drastic overhaul to make it more effective. I ask the Minister to indicate he will discuss with the Minister for the Marine how this can be done.

The Senator has my assurance that that will be one of a number of considerations actively pursued by the committee in due course. As the Senator said, this is an ideal agency to examine where the provisions of the various Acts concern the Office of Public Works's actions on drainage and flooding relief.

Other aspects which impinge on flooding will also be considered. For instance, we might consider whether it is worth putting a proviso in the planning regulations that regard should be had to a potential impact on flooding, particularly from the point of view of the location of domestic dwellings. It may also be considered whether large scale afforestation, "vertical ploughing" and growing forests too far down the slopes of mountains and too near houses affect flooding.

All these matters will be addressed and in due course we will make our considerations and recommendations known. Afforestation, planning, coastal protection and the interaction of legislation will all be examined.

I ask the Minister to examine the impact of agricultural headage schemes on mountainsides adjacent to waterways. He will be aware of the damage done in his county above the Erris.

Yes. There is also a sewerage problem at Lough Conn connected with Crossmolina but it is accepted that most of that problem arises from agricultural wastes and inputs. That is, unfortunately, characteristic of the pollution experience in large tracts of the country and we will examine the matter. This will not happen behind closed doors — we will issue our findings in due course.

Question put and agreed to.
Amendment No. 10 not moved.
Question proposed: "That section 10 stand part of the Bill."

I am confused about section 10(2)(a) and (b). If, under section 10(2)(b), the commissioners are given rights to enter immediately by virtue of necessity, why is there a 24 hour stipulation in section 10(2)(a)? Either would be acceptable but why is one there to override the other?

Section 10 is a natural extension of section 9 and details the circumstances in which the commissioners may enter on land and do all such things as they consider necessary to prevent flooding or other injurious consequences arising from the unauthorised modification, relocation or alteration of what we term relevant works. Such powers may be exercised when the commissioners are of the opinion that there is an imminent risk of flooding.

Section 2 provides that before entering onto land a minimum of 24 hours previous notice must be given to the owner or occupier of the land in question, unless the commissioners are of the opinion that it is necessary to enter on the land immediately. There has always been doubt as to the circumstances in which the commissioners might enter on lands for the purpose of reinstating works interfered with by third parties, or the notice which must be given before doing so. The matter has been the subject of litigation on a number of occasions. The problem is that there is no provision in the Principal Act which adequately covers the various situations which may arise. In view of the high risk of flooding in cases where unauthorised interference has taken place — for example, the removal of stretches of embankments — it is considered expedient to make a provision in this Bill.

Section 10(3) confers an entitlement on third parties to compensation where they suffer damage or loss as a result of the commissioners entry on their lands for the purpose of reinstating works where they were not responsible in the first place for the unauthorised interference and the Office of Public Works has to enter in the interests of executing a protection mechanism.

I am concerned about changes proposed for the commissioners relative to the operation of legislation. There appears to be a proposal to transfer responsibility for the canals system to a new agency. It is another issue, but I would be anxious to have clarification as to whether the canals system has been taken into account. This may not be the appropriate section for this matter, but would the Minister of State give an indication of the ministerial position in relation to changes contemplated with regard to the navigation system and the transfer of responsibilities? I favour the present system. The Commissioners of Public Works have done an excellent job on the development of the inland waterways. It would be unwise to readily contemplate changing it.

I agree with Senator Daly's point as to the work done by the Office of Public Works on our waterways, in particular, the canals system. It has been exemplary. Senator Daly brought in the Shannon Navigation Act, 1990, when he was Minister, which enabled work on the Ballinamore-Ballyconnell Canal to go ahead. These have been enlightened developments in enhancing our tourism potential and exploiting the natural environment. The Minister for Arts, Culture and the Gaeltacht now has responsibility for the canals system and the waterways. The Office of Public Works is involved, but the Minister for Arts, Culture and the Gaeltacht is the policy maker. The Office of Public Works is the executive agency responsible for the work on the canals. The functions are split.

Will the commissioners enforce and administer the relevant legislation, such as the Canals Act, 1986?

My understanding is that the Act will be enforced by the commissioners under the aegis of the Minister for Arts, Culture and the Gaeltacht.

What about a new agency?

I will have to check that matter. I can only give the definitive situation in relation to the respective responsibilities of the two Ministers.

It is a bad day for Ireland.

I recall when we debated the Heritage Act, 1995, there was a section in it which dealt with waterways which would confer responsibility on the Minister for Arts, Culture and the Gaeltacht for improvements to and maintenance of canals. At the time we pointed out the capacity for confusion and interagency rivalry. The Minister for Arts, Culture and the Gaeltacht has indicated that a Wildlife Bill forms part of his legislative plan. I also assume this will impact on the Office of Public Works. There will be quite a capacity for confusion.

It may be possible to devise an amendment that will include the Department of Arts, Culture and the Gaeltacht under the wildlife provisions, including the present Minister.

My information is that there is no mention of a new agency at present. While I would like to have responsibility for the waterways — they are one of the embellishments of the countryside — they are no longer the function of the Minister of State with responsibility for the Office of Public Works. They are under the baton of the Minister for Arts, Culture and the Gaeltacht. Lest anybody misconstrue the matter, it will not be a case of Higgins versus Higgins but, hopefully, Higgins and Higgins.

I wish the Minister luck.

Question put and agreed to.

Amendments Nos. 11 to 16, inclusive, are out of order as they impose potential charges on the Revenue.

Amendments Nos. 11 to 16, inclusive, not moved.
Question proposed: "That section 11 stand part of the Bill."

I do not wish to challenge——

Acting Chairman

In accordance with Standing Order 37, the Cathaoirleach has ruled them out of order.

I appreciate that. Many of the provisions in the amendments, such as putting in place an advisory committee, would not involve charges on the Exchequer. They would be advisory positions; some of the personnel already employed by the State could be involved. A committee of professionals drawn from Government Departments to advise and assist the Minister in the operation of the legislation would not impose a major charge on the Exchequer.

I would have preferred to have an amendment which inserted a new section before section 11. Section 11 deals with the determination of the amounts of compensation under the Principal Act. The major difficulty I have with this amending Bill is there is no provision in it to pay compensation to those who have experienced hardship because of the flooding which occurred through no fault of theirs and which in some cases was quite inexplicable. I mentioned the example of Carron in north County Clare earlier, where houses were flooded out of the blue, people had to leave their homes and they have not gone back since.

In many debates in the House the Minister gave us an outline of the way he felt these matters could be dealt with, which did not necessitate the introduction of legislation. I disagree with the Minister's position. I have put forward reasons why putting a mechanism in place under this legislation to deal with such situations would be far superior, far more streamlined administratively and, ultimately, far more cost effective. A mechanism should be put in place for people who had serious problems arising from arterial drainage or periodic flooding caused by poor drainage and where the flooding was not as a result of their actions. Many of them were unable to avail of insurance cover as they were in locations subject to flooding.

We went into all of this already and I do not wish to labour the point at this stage of the debate. On a matter of principle, it would be far more advantageous for all the Members of these Houses to set down a formula for dealing with this type of situation, specifically covering it on a statutory basis, where people would be entitled to make their claims, have them adjudicated on and have compensation paid where it was felt they were entitled to it, or, otherwise, have their claims rejected. This would be far more important than having a haphazard arrangement in place involving various agencies, Government Departments and bodies such as the Irish Red Cross Society — however good they may be. I do not want to be misinterpreted. I have the highest regard for the Irish Red Cross. They have done tremendous humanitarian work, not only in Ireland but also abroad. Nevertheless, in this respect it is the Government's responsibility to put in place an arrangement which would enable the examination and discussion of claims at official level.

It was in this regard that I put forward a number of amendments which set down systems for the Minister, because I was aware it would be impossible for the Minister to deal with all of these matters. It would be far better to have an advisory committee which could also advise him in relation to priorities and the causes and effects of flooding. It would be of great benefit to the Minister in dealing with his everyday work on the general issue of drainage. I still feel, even at this stage, that this could be extended by the Minister to insert a provision under section 11, which is a section designed to determine amounts of compensation in places where the commissioners are going in to acquire property and to have installations etc. We on this side of the House cannot do it because of the procedures of the House, but the Minister can do it.

We are affording the Minister this opportunity to indicate why it is his decision to allow a haphazard, complicated, complex arrangement to remain in place between agencies and Departments and officials and organisations, rather than setting down a precise formula to deal with this himself. He would have a committee at his disposal to advise him on a number of issues, to adjudicate on claims and to apportion compensation, if a case were genuine, or else refuse it. It is not my intention to have an open-ended committee or function in place which would necessitate huge expenditure by the Exchequer. For that reason, what I have proposed is tightly contained and under the direction of the Minister of State at the Department of Finance, which by any standard cannot be regarded as being overgenerous. People have suffered severe hardship. While the prospect has been held out that something will be done for them, they are still unhappy with the situation we have.

As late as this morning, arising from the discussion in the House yesterday, there were people from flooded areas on "Morning Ireland"— honest, decent people who are beginning to feel that there may be sleight of hand involved somewhere here — who are looking forward to this legislation. At any of the meetings I attended — and I attended some with the Minister of State — the people were clearly interested, first and foremost, in dealing with the problem and, secondly, endeavouring to get compensation for the hardship cases or some indication of what it is proposed to do for them. In some cases it would be less expensive if the Minister relocated the people concerned. This is an issue on which the proposed committee would advise him and help him decide. I do not wish to highlight particular cases, but there was an instance where two houses were flooded and where the cost of undertaking a drainage scheme was estimated at £500,000. In that kind of situation it would be preferable to make some arrangement with the families to relocate their houses to safer places that would not be affected by flooding than to attempt to put a major £500,000 drainage scheme in place. People would be willing to have these matters discussed with them. In the absence of a statutorily defined mechanism to deal with this, we are left with this haphazard arrangement.

I wish to put on the record that I appreciate the work done by the Minister of State since he took up office and by his predecessor, Deputy Phil Hogan, who went down to Sixmilebridge during his early days in office. I believe that the Minister of State genuinely wishes to assist in these cases, that he is anxious to help and will help at the end of the day. In an effort to assist him, I suggest that it would be far better had he a framework and a formula with which he could do this, an established procedure, an advisory committee to assist him and an appeal mechanism, where cases could be examined in the same manner as an appeal for a social welfare claim. This should be done on a statutory basis in the same way as we deal with social welfare or any other payments. This is why I am not satisfied with section 11.

I can appreciate Senator Daly's concern. One of the aspects that has gained most publicity in the flooding crisis has been the element of compensation and whether or not people will receive it. I again make the point that we have already received £260,000 from Brussels. That is only part of the compensation package. On behalf of the Government I am giving a commitment to the House that it will honour its obligations in relation to the other element that is required. An adequate compensation package will be put in place. It is a valid expectation that if we are to determine the amounts of compensation, we should look at the degree of insurance that is applicable or in force in individual cases. That is why I have called on the insurance companies to discharge their obligations as a matter of urgency, because we are anxious to discharge ours. Insurance companies should not be let off the hook. The insurance companies should not be standing back waiting for a Government response. The insurance companies have a primary responsibility to honour their obligations to their clients. I have called on them to honour their obligations so that we can honour our complementary and subsequent obligations.

In relation to building a statutory compensation provision into the Bill, this Bill is not a compensation Bill; it is flooding containment and relief Bill. Its purpose is to eliminate or alleviate the occurrences and consequences of flooding. Building in a statutory compensation fund gives people false expectations. If we build it in, somebody in a place such as Ballyhaunis, where flooding is unlikely to occur, could decide that flooding was one element of their insurance cover they were going to leave out because the State was going to pick up the tab for all flooding. In addition to that, as has been proved in the past, where compensation was required we were able to provide it under the aegis of the Red Cross.

I want to make the point very forcibly in relation to south Galway that the report is almost completed. As soon as the report is completed and we have the details of the insurance available, I will be going before Cabinet as a matter of urgency, making a presentation and we will then draw down the Supplementary, on which we have received agreement in principle from the Government. As regards the people from Glenbrack who featured on television last night, I was in the houses in question and I saw the structural damage. There is quite obvious subsidence. The foundations are gone and there are considerable structural cracks. The Office of Public Works has made a report to us on that. At this moment engineers are examining those houses. If relocation is required, relocation there will be. If these houses cannot be put back into a reasonable state of repair — quite frankly some cannot — then relocation will occur. I will be bringing a report before the interdepartmental committee which will subsequently go before the Government. I am anxious that this be done as a matter of urgency. I do not want to see these people left hanging in suspense as to whether they have to go back and do sticking plaster and patchwork repairs. I want the matter clarified once and for all. If relocation is necessary, it will be delivered. That is a binding obligation that I, as Minister of State, will discharge because people are entitled to a very early answer as to where they can go or stay from now on.

I have a certain sympathy with the Minister's remarks. I listened to what he said on the radio this morning. I am not sure if the lady to whom he was speaking was speaking to us from under water but she was certainly disconnected at an early stage in the proceedings. The Minister is right in saying that where insurance companies have a responsibility, it should be discharged and the State should not be required to pick up a debt which more appropriately belongs to the insurance companies. What the State can do is ensure they expedite proceedings and, by persuasion, ensure that payments are made.

I heard an insurance broker say that a policy covers one for everything except what happens, and I think there is an element of truth in that. Some legal entanglements might arise from delays in payment and I am sure the Government and the Minister will look at this area. Relocation is urgent and I accept what has been stated in that respect. We should be careful to distinguish between the two types of compensation, that which arises as a result of the flood and the type of compensation in the Bill which relates to the consequences of a scheme. They are not the same thing.

I want to assure the Minister that while I have been trenchant in my criticism, it is not personal. He seemed to take it a little personally last night. Everything I have said is factual and I will stand over each remark. I was at the function in Gort, even though the Minister did not meet me.

I had left.

I was in the building while he was there but missed him, otherwise I would certainly have welcomed him. The Minister has been toiling for the past ten weeks with a problem which is not his but rather a consequence of the fact that there is no structure to deal with the tragedies in south Galway and other places throughout the country. There must be some system, either under legislation or regulations, whereby we can deal with situations similar to that which exists in Gort.

I was critical of the Minister of State's decision to have the Red Cross deal with this problem because I believed it was far too serious. The Minister of State argued at the time that the Red Cross could distribute the money without red tape and delay. That has proved to be wrong because there have been delays and many householders in Gort still have not got one penny to help them through their difficulties. Several families have been paying mortgages for houses they moved out of 14 or 15 weeks ago and are also paying for rented accommodation or living with in-laws to whom they have to make a contribution. Everybody knows it is not easy to move in with in-laws. These people have been left in the lurch. The Minister said that if relocation is required, it will be done. Engineers are currently examining the relevant houses. However, irrespective of their reports, there is no way people such as Mrs. Shannon in Clare will take the chance of moving back into their houses because it is likely that those areas will be flooded again next year.

There is a farmer living in Gort who has not featured on television or anywhere else but he has been out of his house at least five times in the last 15 years. He takes it for granted that when the flood arrives and comes in his front door, he leaves. The Minister might have visited his house; his name is Mr. Kilcooley. No insurance company will look at that man. He lives in his farmhouse and has accepted that this is normal. The damage done to a number of houses means that people have to relocate. However, in some cases where houses are not structurally damaged beyond repair, the owners still have no option but to relocate because it would be silly to risk spending £20,000 doing up their houses while being unable to get insurance cover.

The Minister mentioned that he does not want people left hanging in suspense. I do not know how they are hanging at the moment if they are not hanging in suspense. I know the Minister is genuine. He said again today that he will give a very early answer. The day for giving a very early answer is long gone. This is 17 May and these people left their houses some time in January. We have heard commitment after commitment that the Red Cross will pay this money. As far as I am aware, no money will be forthcoming for at least another ten days or two weeks which will take us into June. If what some of these people say is correct, they will be very disappointed unless the Minister comes up with a substantial sum of money to supplement the support they are already getting.

I do not see why it has been necessary to go through this rigmarole. Why was it not possible for the Government to agree that where houses have been flooded for eight to ten weeks people will be compensated properly for the damage? There is no question but that the insurance companies should be made responsible and pay their clients what is rightfully theirs. Nobody is arguing with that. Everybody agrees that the insurance companies must pay out the claims. However, the reality is that they will pay out claims even in cases where they write off the houses but it will not be enough — I have checked this with a number of insurance companies — to allow people to buy a new site and build a new house. Consequently those people still do not know what their position is.

I asked a number of people in Gort to check the small print on their insurance policies. I found that quite a number of them included a clause which stated that they were not covered for damage resulting from a rise in the water tables. It seems that is a fairly common condition in insurance policies for houses. What will happen where insurance companies have told some people that they will pay them but will not reinsure the house?

I repeat a point I made last night. The Minister mentioned people in Ballyhaunis. Where damage is caused by a natural disaster which would not normally be covered adequately by insurance, the Government must pick up the tab to support those people. That should be either written into legislation or put into regulations. The Minister's problem and the reason I have been critical of him during this period is that he has no structure and no parameters under which he can operate and he must take the rap. Some effort should be made, if not in this Bill certainly in some other way, to recognise that a problem exists and that we must put structures in place to tackle it in the future.

The Minister has said that the report on the houses, the Red Cross and so forth, is almost ready and that proposals will soon be put to the Government. I have been listening to the people who own those houses. On 16 May those people are no more knowledgeable than they were on the day they left their houses. The Minister has been sympathetic and has visited their houses. He has told them that the Government will be supportive in their relocation. However, that is all general: there is no clear commitment about what exactly they will receive at the end of the day.

The Minister says he will give early answers. The time for answers is long past. Where a person had to move out of their house and where there will be a shortfall in the amount of compensation they will receive in order to build a similar house in a similar location, the Minister should be more definite in saying that they will receive the amount of money required to bridge that gap. That should have been said to those people three months ago but it is still not being said to them. The Minister has only given a general promise.

It is the principle that is important at this stage. I appeal to the Minister to return to the Government with legislation or regulations to deal with a natural disaster. There should be some arm of Government, whether it is an interdepartmental committee or a committee such as that proposed by Senator Daly, to provide answers the morning after a man's roof is taken off by a storm instead of having people running around like headless chickens and recruiting a few volunteers from the Red Cross. The Red Cross does not have the ability, manpower or the organisation to deal with what happened in Gort and it was wrong to ask them to do so.

A number of businesses throughout the country were badly affected. At least two of them were in the Gort area. In one case a sawmill was closed last year for almost three months and it was closed this year from 1 January until very recently. Three or four people were employed there. As soon as the flooding occurred it had to be closed down. The proprietor of that little sawmill, having had to close his building after Christmas and having had to let his employees go, did not insure the building as he normally would on 1 January because he was in dire financial circumstances and he did not insure his employees because they were not working. During the flooding the place went on fire as a result of an electrical fault. He suffered serious losses and, of course, it was because of his own negligence that he was not covered by insurance. He is still wondering if he will ever get back on his feet again. Surely somebody could have gone to him and said "give us an indication of your losses and we will try and come forward with some compensation for you", but no, we are waiting and waiting and waiting. People are at the end of their tether now.

I do not wish to curtail discussion but the Senator's contribution is very lengthy.

I am tempted to give details of the personal trauma and medical problems that have been endured by a number of those people. However, respect for their privacy prevents me from doing so. A number of those people will suffer for a long time as a result of the trauma they have endured over the past months. In this day and age it is not good enough that we must put people through such suffering.

If the Minister is not going to do anything in this Bill he should try to establish a structure to deal with future natural disasters.

The Minister is to be congratulated on his efficiency in introducing this complex Bill which deals with complex areas. The Minister has said that this is a flooding containment Bill. However, it goes further. It allows us to drain parts of catchment areas. Senator Daly brought his own Bill before the House and I congratulated him for doing so. I have no doubt that his Bill prompted the Minister to bring this Bill before the House as a matter of urgency.

The Minister stated that over £240,000 will come from Europe and that it is only part of the compensation that will be paid. The Government is committed to and will honour the Supplementary Estimate the Minister has introduced. I welcome that. I have no doubt that the Minister will ensure that those funds are dispersed as a matter of urgency to alleviate the problems in the flooding blackspots throughout the country. The Minister also stated that he will call on the insurance companies to comply with their duties. I agree with that. The insurance companies should not renege on their responsibilities. Just as we and the Government have a responsibility to carry out our duties as elected representatives, the insurance companies have specific responsibilities and they should honour them.

The Minister has said that relocation will be dealt with urgently if required. I have no doubt that he will act immediately when the details of the report are available. I welcome this Bill and I congratulate the Minister on the efficient manner in which he has introduced it in the Seanad. The Bill will allow us to make great progress in this matter.

We are coming to the conclusion of our discussion on this Bill. The provisions in section 11 mainly refer to amendments to an Act which was introduced around the time of the Famine; it is 150 years old. This is an ideal opportunity for the Minister to put new life in the Bill by inserting the amendments we have proposed. I did not put down those amendments lightly. I put a great deal of thought into them and examined other legislation. When I was appointed Minister for the Marine a campaign was being conducted by former employees of Irish Shipping who felt, rightly, that they had been denied proper and adequate compensation. In fact, many years afterwards legislation was introduced to the House to address this situation. If the Minister considers the Irish Shipping legislation, which dealt with a specific problem relative to Irish Shipping, he will see similarities with these amendments. Indeed, apart from a few variations, their provisions are almost identical, as I discovered when finalising them.

These amendments have not been dragged down from some rooftop and put together in an attempt to embarrass the Minister. There is no question of that, because the Minister would be in a much sounder position if there was a statutory body in place to deal with these problems. They are not going to go away because of this legislation. This was admitted by various speakers, including the Minister. If the weather conditions were to continue over the coming winter, many of the problems will not be dealt with, many of the schemes will not be finalised and further problems will arise.

The Minister still has an opportunity to consider the matter carefully again and tighten up the section before the Bill goes to the other House. In the provisions of the Irish Shipping legislation he will see that there is a realistic, sensible, straightforward method of dealing with a problem which is going to be in existence for some time and which will be a recurring one for him and his successor. He should not have any doubts about this. If he has, he is not going to learn from the experience of the past, which illustrates that there will be problems of this nature. In this respect, the section proposes to change the Land Clauses Consolidation Act, 1845. This legislation is over 150 years old and changes to it are welcome. However, new legislation is required in this specific area.

I have no brief for the insurance companies. They have a responsibility to their clients to deal with their claims, and they and we must ensure that these responsibilities are honoured. If we find evidence that insurance companies are not honouring their responsibilities in dealing expeditiously with claims of this nature, we have methods of raising and dealing with this in the House under existing legislation. In addition, I have no time for anybody who may attempt to evade their responsibilities to their clients in the belief that somebody in Government will share the responsibility with them. People paying their premiums are entitled to cover and to have their claims fully paid for and met.

However, there are a number of genuine people who did not have insurance or were unable to get it, and there will be many more in this latter category arising from the events of last year. I am aware of some people who have been advised by their insurers that while they are currently covered, they will not provide cover or quote for cover next year if they remain in their present locations, and one of the Minister's officials was informed of this when he visited one of them. I do not wish to go into people's private affairs, but there is an opportunity in the legislation to put a mechanism in place which can be sufficiently adjusted to ensure that there are no abuses. In the absence of a commitment from the Minister on this, we must consider opposing the section.

With regard to the possibility of opposing the section, it is a stand alone section and it deals with the amendments which are necessary with regard to the Land Clauses Acts. As a former Minister with responsibility for the Office of Public Works, Senator Daly will be aware that the only sections of the Land Clauses Consolidation Act, 1845 referred to in the 1945 Act are sections 69 and 83. This is why we are bringing into operation the other relevant sections of the Act, and these are set out in section 11(1)(a)(iii) which states: "any loss or damage referred to in section 15, 16, 32(2), 34(3) or 46(4) of that Act,".

With regard to the point made by Senator Daly and Senator Fahey regarding compensation, Senator Fahey said that he has been listening to the people on the ground. However, I have been meeting the people on the ground. In addition, I have met the south County Galway IFA, whose members have unanimously endorsed the action I have taken, not once but on two occasions. I have also met the ICMSA, whose members have unanimously endorsed and have been quite loud in their praise for the measures I have taken. In addition I have met the individual householders in Glenbrack, and if that lady had been given a chance this morning she would have spoken her mind because they are realists and do not expect miracles. They are also pragmatists and know that when somebody is making a genuine effort there is an obligation on them to acknowledge it. I have given them an assurance that if relocation is required it will be delivered upon. I can do no more than that.

From the moment I raised the possibility, by way of a debate in the House, of introducing the Irish Red Cross Society, Senator Fahey has undertaken a campaign of disparagement, villification, ridicule and denigration against an organisation which has been internationally recognised——

That is not true.

——lmost to the point where the he has annoyed it to such an extent——

I simply said that——

Here is an organisation that has done the job in the past and has an international reputation. When we went to Brussels — and the gentlemen behind me will confirm this — one of the first questions that was put to us was who would administer the scheme. When we asked for advice on this, it was recommended that the Irish Red Cross should do so. It is an international organisation. Other countries take this course of action and it was suggested that we do likewise. The Senator mentioned that there are considerable examples on the ground of people suffering from trauma and mental stress and so on. I cannot think of any agency better fitted to deal with this kind of situation than the Irish Red Cross Society.

No money has been paid out, Jim, and it is now the 16th of May.

Acting Chairman

Senator, you cannot refer to people by their Christian names.

I apologise. The Minister's statement is not true.

I am stating the facts.

We are willing to co-operate to have the legislation passed, but the Senator must be allowed respond.

Acting Chairman

Senator Fahey, if you wish to make a point I will give you an opportunity to do so.

I have no problems with Senator Daly. I was the recipient of an award in Senator Fahey's town of Gort from those who transcended all persuasions, divisions and prejudices in order to acknowledge the work that has been done, in addition to the work undertaken by the other agencies, such as the Air Corps, the Army, the Office of Public Works, Galway County Council, the health boards, the Department of Social Welfare, the Department of Health and so on. We are talking of a three month time span and the Senator has said that nothing has been done. In the first instance, we delivered ten measures——

No money has been paid to several of the householders.

Some of the householders, who happened to be farmers, have already received £4,000 by way of agricultural compensation. We delivered legislation, the need for which has been staring——

On a point of order, the Minister should stay with the facts. He is quoting me as saying things I have not said. What I have said is that several of the householders have not yet been given any money. I did not say anything about farmers or anybody else.

The Senator threw the Bill in the air——

Acting Chairman

Senator, I advised that I would give you an opportunity to respond to any points made by the Minister of State with which you disagree. I ask the Minister of State to resume.

The Senator threw the Bill in the air yesterday and said it was not worth a whit and that this was the reaction of people on the ground. Yet the Bill addresses a problem which has been staring successive Administrations, including that in which the Senator was Minister, for a considerable period of time. Now, at last, the Bill contains provisions which will deal with the flooding problem in the Senator's town of Gort and the work will be undertaken this year.

In addition, I have effectively addressed the problem of compensation, and it will be delivered upon. There is no need to put an infrastructure or superstructure in place on this basis because there is already one in place. Last but not least, I have addressed the issue of relocation for the first time ever — no past Government has ever done this. As I have said, if relocation has to come about, it will.

I also pointed out — and this point was also made by Senator Dardis and Senator Burke — that if people are insured and have paid premia, by all means we will go after that. When it comes to the balance, we will certainly not be found wanting. That has all been done in the space of three months.

On the points made by Senator Daly, particularly on the need to put a structure in place, we should not even be discussing that amendment since it has been ruled out of order, which is not my fault——

Do not get technical with us.

Senator Daly's amendment was putting in place a committee consisting of the two commissioners of the Office of Public Works, an officer of the Minister nominated by the Minister, a county manager and a representative of the General Council of County Councils. We now have in place a permanent structure — the interdepartmental committee. I am prepared to look at the composition of that committee as being the agency or the committee from which compensation will be dispensed henceforth. If it means tagging on a few extra members — for example, the Irish Red Cross — I am prepared to look favourably at ensuring that the final composition of that committee, from the point of view of a compensation element or remit, will have all the various agencies, interests or individuals who would be competent to deal with this aspect.

I have tried to be fair to the Minister by not accusing him of being responsible for the difficulties that have arisen, but when I referred to the Irish Red Cross I did not say the kind of words the Minister used. I said that it should not have been asked to do this job because it is not in a position to do it. I have met volunteers from the Irish Red Cross who were trying to do a job that they did not have time to do because of their other work. It is a fine organisation and there are good people in it, but all I said was that they should not have been asked to take on a job that a Government agency should have done.

What I find unacceptable is the Minister's continuing attitude that if relocation is necessary, it will be given. Take the example of Mr. Kilcooley in Ballylee. He has been out of his house at least five times in the last 15 years. He cannot get insurance. There is no question about if relocation is necessary; that man must be relocated. Can the Minster not tell him that he will be relocated and pay him enough money to build a house on another part of his farm where he will not be flooded again next year? I can assure the Minister — I will come back to him personally on this point — that if we get even a quarter of the rainfall we got this year in the future, Mr. Kilcooley will have to leave his house again.

Acting Chairman

You are repeating what you said previously, Senator.

I mentioned him because, unlike others, he has not been to the forefront. Why not tell these people that they will be relocated, because there is no other option for several of them?

When we started this debate the Minister indicated that he would be forthcoming in looking at some of the amendments we put forward. The Minister, when he announced the introduction of the legislation on national radio a week ago, publicly stated that he would be willing in this debate to work in partnership with the Opposition and to frame amendments to make it a better Bill. At the start of this debate, I acknowledged the way in which the Minister had dealt with the matter and the fact that he had included in the Bill some of the intentions we had in the previous Bill.

Section 11 largely covers the determination of the amount of compensation to be paid under the Principal Act. The Minister could embody in this section some provision which would cover a mechanism to deal with the question of compensation. I will deal with the committee on section 15. I also acknowledge that the Minister has made some concessions there. However, it would be within the Minister's power to put in some of these sections to deal with the compensation issue in hardship cases. I am not saying that the Minister should put all of them in, but we will not oppose this section if he can assure us of that. I am not talking about people with insurance or those who are capable of meeting their liabilities arising from these damages, but about a small number of people suffering from hardship who do not have the necessary finances to deal with this crisis.

It is not as if the Government does not have any responsibility for this situation. We all share the responsibility for the fact that this legislation has not been updated for the past 50 years, but these incidents occurred because of the failure of a system of drainage to meet these problems, whether they be in Cavan, the Burren, Gort, Carlow, Kilkenny or in Ennis, where many people were put out of business and the town was turned into another Venice for a week during the floods.

The Minister did say publicly that he would be forthcoming on how we could improve this legislation as it proceeded through this House. Since the Committee Stage of this debate began the Minister has not given us a commitment that he would even look at any of these matters on Report Stage. In spite of the Minister's good intentions, we have seen nothing by way of compromise on his part to meet some of our fears.

We fear — this is a point of principle — that the absence of a mechanism to pay compensation to people who are suffering hardship will continue and will not be resolved. We may well see a similar situation arising next year and the year after. I am referring to problems arising from the failure of an arterial drainage system to meet the demands placed on it with the result that people are flooded out of house and home. We are not talking about huge expenditure here; we are talking about a confined, specified and controlled area with a controlled mechanism that, from the Minister's point of view, would be far more streamlined and sensible.

As I said previously, I fully appreciate the anxiety of the Senators on the element of compensation. However, this is a Bill specifically designed to deal with the effects of flooding. When the provisions in this Bill are acted upon, and nine of them will be this year, it will certainly curtail flooding in these areas. The Senator's anxiety about compensation would then be considerably diminished and reduced.

The point of the legislation is to untie my hands in relation to what the Office of Public Works can do. We are carrying out nine schemes this year. If one looks at the list of claims that have come in from around the country, one will find that the bulk of them are from the affected nine scheme areas. South Galway, as I have explained before, is a separate situation and that is being addressed. If this Bill and the schemes are successful — the Bill will be made law by the summer and the schemes will be in operation within months — nine blackspots, where considerable claims for compensation are being justifiably made, will no longer require compensation. The primary purpose of this Bill is to address flooding problems.

Enshrining statutory compensation in legislation like this would be wrong because there is no need for it. Compensation has been delivered by the Government in the past, present and the future. There is no need to enshrine in this legislation any statutory provision for determining compensation. One of the Senator's sections is included in this Bill as is the spirit of the legislation which he introduced. I have given the Senator a commitment that the interdepartmental committee will be assigned specific responsibility in relation to determining compensation amounts from now on and I am prepared to consider strengthening the membership of that committee, the composition of which I hope to announce shortly. The point at issue relates to a committee, an agency to do the work. I am putting that agency in place.

Senator Daly's amendments were ruled out of order but not at my behest. They were struck down because of their financial implications. Had they been included, I would have been prepared to discuss them. I am prepared to take on board the Senator's main point and to set up a committee. The committee is already in place but we will strengthen its membership; we might decide to draft in a county manager or a representative of the General Council of County Councils. However, I cannot include provisions for the allocation of compensation in the legislation.

The Senator has indicated that he might vote against section 11. There is very little point in striking down section 11, which contains considerable provisions relating to compensation for agricultural disturbance, in order to make the point about an amendment which was deemed to be out of order. We have taken the spirit of large parts of the Senator's legislation and enshrined it in this Bill. The terminology is somewhat different but the spirit and thrust are the same.

Question put.
The Committee divided: Tá, 31; Níl, 21.

  • Belton, Louis J.
  • Burke, Paddy.
  • Calnan, Michael.
  • Cashin, Bill.
  • Cosgrave, Liam.
  • Cotter, Bill.
  • D'Arcy, Michael.
  • Dardis, John.
  • Enright, Thomas W.
  • Farrelly, John V.
  • Gallagher, Ann.
  • Honan, Cathy.
  • Howard, Michael.
  • Kelly, Mary.
  • Lee, Joe.
  • McDonagh, Jarlath.
  • Magner, Pat.
  • Maloney, Sean.
  • Manning, Maurice.
  • Naughten, Liam.
  • Neville, Daniel.
  • Norris, David.
  • O'Sullivan, Jan.
  • O'Toole, Joe.
  • Quinn, Feargal.
  • Reynolds, Gerry.
  • Ross, Shane P.N.
  • Sherlock, Joe.
  • Taylor-Quinn, Madeleine.
  • Townsend, Jim.
  • Wall, Jack.


  • Bohan, Eddie.
  • Byrne, Seán.
  • Daly, Brendan.
  • Fahey, Frank.
  • Farrell, Willie.
  • Finneran, Michael.
  • Fitzgerald, Tom.
  • Kelleher, Billy.
  • Kiely, Dan.
  • Kiely, Rory.
  • Lanigan, Mick.
  • Lydon, Don.
  • McGennis, Marian.
  • McGowan, Paddy.
  • Mulcahy, Michael.
  • Mullooly, Brian.
  • O'Brien, Francis.
  • O'Kennedy, Michael.
  • Ormonde, Ann.
  • Roche, Dick.
  • Wright, G.V.
Tellers: Tá, Senators Cosgrave and Magner; Níl, Mullooly and Fitzgerald.
Question declared carried.
Question proposed: "That section 12 stand part of the Bill."

I return to these contradictions as regards the delay in getting works completed. Before the commissioners make vesting orders they must notify the Land Commission or the Revenue Commissioners if there are charges arising from land annuities. I understand the Land Commission has been abolished and land annuities have, by and large, been bought out. This provision will only further delay the expeditious carrying out of vesting in this section. Is it necessary in view of the fact that land annuities have been bought out under the purchase scheme introduced a few years ago? As far as I know, the Land Commission has been abolished and the work it did is now being done by the Department of Agriculture, Food and Forestry. I am not sure whether this section is necessary because it will only cause further delay.

The purpose of the section is to expedite the conveyancing of land. The section outlines the procedure to be followed by the commissioners where land is compulsorily purchased under the Principal Act. The acquisition is done by means of a vesting order which is a simplified method of conferring an unencumbered title on the commissioners. It obviates the necessity for taking conveyance of land and the associated problems of showing good title which often happens and it strengthens the powers in relation to the vesting of lands.

Section 12 (1) permits the commissioners, when acquiring land under the Principal Act, to do so by means of a vesting order. Section 12 (2) states that a landowner whose land has been acquired by vesting order is entitled to be paid compensation and the provisions of the Land Clauses Acts shall apply to the determination and payment of that compensation.

Section 12 (3) states that where the commissioners become aware before the vesting order is made that the land or part of it is subject to any obligation to the Land Commission or Revenue Commissioners, those bodies will be advised of the commissioners' intention to make the order. This protects the interests of those bodies by giving them an opportunity to take remedial action, if required, before the vesting day. There are equivalent provisions in other legislation.

Section 12 (4) provides that where the commissioners make a vesting order they shall, within 14 days after making the order, post a notice containing a copy of the order on or near the land — we discussed this yesterday evening — and give a copy of the order to every owner and occupier of the land who can be identified by reasonable inquiry.

Section 12 (5) (a) states that the form of the vesting order will be prescribed by the Minister for Finance and it will have the effect of transferring ownership of the land to which it relates to the commissioners in fee simple; in other words, free from any encumbrances or burdens, for example, rights of way, etc. Ownership is conferred on the commissioners on a specified date, but not earlier than 21 days after the making of the order. Section 12 (5) (b) states that the commissioners must pay any annuities due to the Land Commission on the land acquired from the date on which it is vested in them. Section 12 (5) (c) states that as soon as the land is vested in them, the commissioners are obliged to register their title in the Land Registry Office.

The manner in which a copy of the vesting order may be given to a landowner is specified in section 12 (6). It may be delivered, left at the last known address or sent by registered post, and these are standard procedures. Section 12 (7) is self-explanatory.

As regards Senator Daly's query, the Land Commission is still in existence in the Department of Agriculture, Food and Forestry, but with diminished responsibilities.

I am glad the Minister made that last point because I thought the Land Commission was in a state of suspended animation or had become a disembodied spirit.

I apologise for again asking the Minister about the legal definition which may apply to "near the land" because I raised this matter on Second Stage, but I did not hear the Minister's reply.

The Cathaoirleach will recall my campaign on the "in relation to" disease. There has been a refreshing absence of it in recent legislation and this is the first section of the Bill where it occurs. The section states:

The Commissioners may, as respects land that is being compulsorily acquired by them under the Principal Act, complete the acquisition of such land by making an order under this section (in this section referred to as "a vesting order") in relation to the land.

Why could it not say "for the land"? Perhaps the Tánaiste has something to do with the spread of this disease because he frequently uses the phrase. I am sorry to introduce this irrelevancy to the debate.

As it may not always be possible to erect a sign on the location because of flooded lands, the definition should be "as near as is practicable".

Question put and agreed to.
Question proposed: "That section 13 stand part of the Bill."

Section 13 deals with the publication of a notice which states that a report of an authority is available to the public. Are reports not always made available to the public? Is there something new in this section?

This section has been taken directly from Senator Daly's Private Members' Bill. It is worth recalling that section 30 of the Principal Act obliges county councils to submit annual reports on the maintenance by them of drainage districts within their jurisdiction to the Commissioners of Public Works. Section 13 of this Bill places on the councils a further responsibility in that such reports must now be published in at least one newspaper circulating in the area. That was not a requirement up to now. This is being done from the point of view of greater accountability and public awareness. This provision is phrased in the same way as in Senator Daly's Bill.

I support what the Minister said but I would like him to extend this provision so that we could get a report each year from the commissioners on drainage activities. A report is published, but I am not sure there is a specific one on this area. This amendment means that the Commissioners of Public Works will now be involved in smaller schemes. I suggested in section 16 of my Bill that a committee should advise the Minister on certain aspects of drainage, that it should issue a report and perform functions which the Minister might ask it to do. I felt it was necessary for the Minister to have some mechanism whereby the public could be made more aware of the commission's activities. A lot of its work has not been highlighted and its annual reports have been concerned with detail rather than specific outlines of its performance. Section 13 of this Bill means that drainage committee reports will be published at local level. Perhaps it would be possible to publish national reports on an annual basis.

If the Senator examines the Bill he will see that it provides for an annual report. It states "shall furnish to the Commissioners in every year a report".

Question put and agreed to.
Question proposed: "That section 14 stand part of the Bill."

This section increases the penalties under the Principal Act and states that a person can now be fined £200. Has the fine been increased to £200 because I do not know how much the penalties were in the Principal Act? Can a penalty be imposed for deterioration of a watercourse?

Any interference with a watercourse is subject to penalty. As regards the Senator's query about the increase in penalties, the original fine was £5. The purpose of this section is to increase what were outdated and derisory fines in the context of modern situations. These substantial increases were not decided by me but by the drafting office. A general review of penalties is taking place in consultation with the Department of Justice. These penalties appear to be the norm.

There are severe penalties in other legislation if watercourses are interfered with. The farming community is subject to severe penalties under legislation and industries could pay fines of £10,000 or more. This section states that the penalty should not exceed £200. Yet, during the two day debate in the House, a number of Senators stated that the quality of the water and watercourses in many rivers have been seriously interfered with. The Senators had good reason to make these statements and I concur with them. I made such a statement and I instanced two rivers, the Shannon and the Suck.

I know why Bord na Móna does not have to worry about legislation dealing with arterial drainage, that is, the Principal Act or this Bill. If there is a maximum fine of £2,000 it can continue dumping hundreds of thousands of tonnes of silt because it will not have any effect on its finances.

Senator Finneran's anxieties are ill-founded. There is an initial penalty of £1,500 and subsequent fines of £200 for every day during which the offence is continued. This may not be a large amount for Bord na Móna or the ESB but it is a substantial increase on the penalties which applied heretofore.

Would a local authority be liable to penalties under the Bill?

Anybody and everybody who interferes with a watercourse is liable.

Could the Office of Public Works give consideration to the matter of water abstraction? We have a different problem with the River Liffey. We will not have too much water but too little. Perhaps people in Gort could send their water to us.

An Leas-Chathaoirleach

Via the midlands.

Some 53 million gallons a day are taken from the Liffey to supply Dublin with its water needs. One-third of this disappears through the pipe somewhere. There is permission to take 70 million gallons and there is a proposal to have 100 million gallons extracted. The ESB has prepared a report on what the consequences of this would be for Poulaphouca reservoir. The mean flow on the river is 190 million gallons a day. Thus, there is a proposal to take virtually half of the mean flow from the Liffey.

The Office of Public Works correctly went to a public inquiry in Kildare town about the motorway bypass and spent several days explaining what it perceived to be the risk to Pollardstown Fen. The Liffey is an environmental issue of even greater magnitude so I ask the Office of Public Works to keep an eye on it.

Question put and agreed to.
Sections 15 and 16 agreed to.
Title agreed to.
Bill reported with amendment and received for final consideration.
Question proposed: "That the Bill do now pass."

During the discussion on section 6 we sought clarification of section 10 of the Principal Act in relation to the powers and involvement of the commissioners in consultation or discussion with the Minister for the Marine. The Minister put part of section 10 of the Principal Act on the record. Could he put the first part of that section on the record because some people have asked why we were pressing this? As far as I am aware, this section exempts the commissioners from complying with the Fisheries Acts.

May I read section 10in toto? I did not do so on the last occasion.

An Leas-Chathaoirleach

I do not want to reopen the discussion. I have put the question: "That the Bill do now pass." I am sure the Minister will facilitate the Senator by making a copy of the Act available to him.

I have asked him to put section 10 of the Act on the record. That is not reopening the discussion.

The passage of this Bill gives me enormous satisfaction because a very serious commitment was given by this side of the House and the Minister that the Bill would clear this House by the end of May. It has now been concluded on 17 May and will be in the other House next week. This means we are ahead of schedule and the important work can begin.

I wish to pay tribute to Senator Daly. By introducing his own Bill he undoubtedly concentrated minds and brought the matter to public attention. He handled his own Bill and this Bill over the last two days with extraordinary skill, tact and courtesy. It was a model parliamentary performance. I pay tribute to him and all those on the other side.

I want to pay tribute to the Minister of State, Deputy Higgins. It was his first Bill and he handled it with tremendous urgency, a great grasp of detail and a willingness to mix it with Members of the other side, which is part and parcel of parliamentary practice and procedure. This Bill is a great credit to him and I hope the other House gives it the same attention and urgency of dispatch which this House gave it.

May I also pay tribute to Senator Dardis? His informed contributions enlivened this debate. I thank the Independent Senators who rapped us on the knuckles last week for the tardy arrival of the Bill. Their efforts in focusing minds was appreciated. There were times three months ago when I felt we should have been wearing Wellingtons so great was the emphasis on flooding; we seemed to have been discussing almost nothing else at one stage. This has been good parliamentary work and I compliment all those involved.

I wish to express my sincere thanks to the Leader for his kind remarks and to express my appreciation to my colleagues on this side for their co-operation during the discussion, especially Senator Finneran and Senator Fahey, who have been here all day. I thank the Minister for the expeditious way in which he dealt with this and I wish him well in the work that has to be done; I also wish his officials well. They were among my former partners in the Office of Public Works and I am glad they are still looking fit, healthy and well in spite of the floods.

I thank the Minister for the way he dealt with this legislation. He has been very open with us and has answered our questions in detail. Not every Minister who comes to the House does so. Like Senator Manning, I was impressed by his grasp of detail and I am sure his officials deserve some of the thanks for this.

I congratulate Senator Daly. It was because of his intervention in introducing his own Bill that this Bill is with us now. Senator Quinn should probably be linked to this because he helped to bring the legislation to us.

It is a compliment to the way the Bill was drafted that it did not require much amendment. I am sorry I could not support the proposition that section 11 should be deleted. Not only would I like to see people given compensation for the immediate effects of flooding but I would like to see them get compensation when the commissioners arrive on their land, which would have been the effect of deleting this section.

I compliment Senator Daly and, to a degree, Senator Quinn. I thank the Minister and wish him well with the legislation in the Lower House.

To everybody involved in the debate over the past two days, I want to say a sincere word of thanks, particularly those who contributed on Second Stage and went through it in considerable detail. I wish to express special gratitude to those who contributed today and sat through Committee Stage because this requires a certain amount of concentration, application to detail and analysis.

I join with the Leader of the House and Senator Dardis in paying a special tribute to Senator Daly, who is getting almost as much credit from this as I am. It is credit that is well due because he did, as the Leader said, help to concentrate minds wonderfully. Senator Daly also helped my cause when it came to emphasising at Government level the need for urgency in relation to the Government's attitude to this measure.

I thank Senators who spoke in favour of the Bill and who saw the reason in what we were trying to do. I accept the spirit of what Senators were trying to do, who were not in a position to support the Bill through all its Stages. By and large, however, there was consensus on the finer details of the Bill itself.

The Office of Public Works, Senator Daly's former mentors, are considering taking this up as a full-time occupation because they have seen so many Ministers through their hands over the last number of years. They have been as courteous and efficient with me as I am sure they were with all my predecessors. I would like to thank the draftspeople who put flesh on the bones of the Bill. They did a tremendous job in drafting it, particularly the heads of the Bill.

I am confident that we have got it right; and, while one cannot always say that a Bill is 100 per cent right, this one is as near to perfection as you will get. After the very detailed in-depth analysis that was carried out in this House there is not much meat left on the bones for the Lower House.

Question put and agreed to.
Sitting suspended at 5.20 p.m. and resumed at 6 p.m.