I welcome the Minister of State, Deputy Peter Burke, to the House.
Water Environment (Abstractions and Associated Impoundments) Bill 2022: Committee Stage
Section 1 agreed to.
SECTION 2
I move amendment No. 1:
In page 10, to delete lines 28 to 31 and substitute the following:
“ “Licensing threshold” means 2,000 cubic meters or more in any 24-hour period;”.
I welcome the Minister of State to the House. I am mindful that I sit on the Joint Committee on Housing, Local Government and Heritage. The committee discussed this legislation at some length.
I am also mindful that I am a member of the Joint Committee on Agriculture, Food and the Marine. The Irish Farmers Association, IFA, made a submission to many Oireachtas Members requesting amendments and I have a copy of it in front of me. These are not my amendments. These nine amendments were not thought up by some sort of genius, Victor Boyhan; they are the result of engagement with the IFA and it has clearly set them out. The rationale has been somewhat simplified by me, and I will set it out.
I welcome the spirit of co-operation shown by the Minister of State. In proposing the amendments, I am conscious of the strong association between the IFA and the major political parties in this House, and the fact that the IFA has an Oireachtas liaison officer, who is in the House as we speak. I have met a number of them. I will not dwell too long on the amendments. I respect that the Minister of State has a function and role in regard to each of them. It is important to state that.
The IFA has advocated for the licensing of the thresholds of 2,000 cu. m or more in any 24-hour period. Currently, the legislation before us states that licensing thresholds can be defined as set out in the legislation. The current interpretation in terms of the rationale of this amendment is that the licensing threshold gives the Minister too much power, which is what the IFA says, and creates too much uncertainty for farmers and small businesses in agriculture. If the Minister wishes to increase the licensing threshold, he or she should be required to bring amendments to the legislation before the Houses of the Oireachtas. The context is that the IFA considers that the proposed legislation is too uncertain and not specific as it would allow the Minister to change the level of licensing threshold without recourse to the Oireachtas. This creates too much uncertainty for farmers and small businesses. The legislation should be clear, specific and based on the specific current proposed licensing and registration thresholds of 2,000 cu. m in any 24-hour period or 25 cu. m in any 24-hour period, respectively.
That is the rationale behind the amendment. These are IFA amendments. I believe it is important to be a conduit in this House and to support distinguished bodies like the IFA that have a significant track record in agriculture. The Minister of State represents a rural constituency in Westmeath, and he will appreciate and know of its commitment to agricultural and rural communities. There is some logic and reasonable rationale behind this amendment. I look forward to his response.
I thank Senator Boyhan for his remarks. The power to reduce the threshold where it is deemed necessary by the Environmental Protection Agency, EPA, on environmental grounds is a key environmental protection included in the Bill, and a key factor in establishing a risk-based registration and licensing regime. Removing reference to the threshold as potentially altered by ministerial order under section 16 would potentially have negative effects on the environment into the future and contribute to the failure of water bodies to meet their environmental objectives.
The licensing threshold of 2,000 cu. m per day will capture approximately 326 of the currently registered abstractions. This equates to more than 99.5% of the total volume of water abstracted in Ireland on any given day. The risk-based element of the licensing regime provides that all abstractions between 25 and 2,000 cu. m per day will be assessed by the EPA to determine if they require a licence or not. Based on initial evidence from the river basin management planning process, the EPA estimates that several hundred more abstractions will require a licence once this assessment has been completed.
Ultimately, the same powers exist for the EPA to advise the Minister on the licensing threshold as for the registration threshold, and the Minister will have the power to reduce the licensing threshold if necessary to provide for additional protection to our surface and groundwaters.
The Minister of State has given his response. I acknowledge that and I do not wish to add any further comment.
Amendment put and declared lost.
I move amendment No. 2:
In page 11, to delete lines 26 to 29 and substitute the following: " "Registration threshold" means 25 cubic metres or more in any 24 hours;".
Before I proceed with amendment No. 2, I thank the Minister of State and his officials for the explanatory memorandum that was circulated last week. It was further to the two queries we had in the previous session in the House, when we discussed aspects of the Bill and the interpretation of the Library and Research Service. I again thank the service for its excellent report. It is an excellent organisation. Like many Members in this House and the Oireachtas in general, I could not do without its help, support and assistance with the legislative process. I also acknowledge that subsequent to our previous meeting with the Minister of State, his officials teased out the matter in more detail and drilled down into some of the issues, which I found helpful and informative. I used some of that to further inform me of the rationale I will make for these eight amendments. I thank the officials who are present in that regard.
It is proposed in amendment No. 2 that the registration threshold be changed to 25 cu. m or more in any 24 hours. Like the first amendment, the current interpretation of "registration threshold" gives the Minister too much power and creates too much uncertainty for farming and small business.
The context of this is that the IFA considers that the proposed legislation is too uncertain and not specific, as it would allow a Minister to change the level of a licensing threshold without recourse to the Houses of the Oireachtas. The IFA argues that this creates too much uncertainty for farmers and small businesses. The legislation should be clear and specific and be based on the specific current proposed licensing and registration thresholds of 2,000 cu. m or more and 25 cu. m or more in any 24-hour period, respectively. That is the rationale for the amendment.
My amendment, No. 3, was ruled out of order. It is fair to say that it contradicts this amendment. While I have the utmost respect for Senator Boyhan, his view is in direct contrast to the recommendations of the Joint Committee on Housing, Local Government and Heritage, of which he is a member. He referred extensively to the IFA. I will refer to the Sustainable Water Network, SWAN, whose representatives appeared before the committee, and also Inland Fisheries Ireland. Both organisations recommended that we reduce the threshold from 25 cu. m to 10 cu. m. We must have an element of future planning. We know that our waterways are under pressure, in particular in the south east where most of the abstractions happen. That would lead us to believe that many of the abstractions below 25 cu. m are from agriculture and that it is where much of the pressure is coming from. When we look at the abstractions over 25 cu. m, the majority are for domestic use. I do not think we will see a dramatic change in that regard because people will still need to use water.
We must have a proper system of recording water abstraction in this country. In Northern Ireland, Scotland and the UK more broadly, the level is 10 cu. m. There is very little explanation as to why the level is not being reduced from 25 cu. m to 10 cu. m. I know the Minister has gone before the committee and that explanations were issued. I note again what the committee stated in its report:
The Committee notes that in the explanatory note under Head 5 of the General Scheme, the Department has stated that this approach [the 25 cu. m] mirrors that taken in Scotland and Wales, where a relatively small quantity of water is exempt from the requirement to be either registered or licensed.
It is not 25 cu. m but 10 cu. m in those countries. The matter warrants further investigation. I do not agree that my amendment should have been ruled out of order because registration is free and is done via an online portal. It would give us more information and could reduce the cost to the State. If we were experiencing a water shortage at a particular time and we had contact details for all those extracting more than 10 cu. m, we could contact them and ask them, even on a voluntary basis, to reduce their water abstraction on days when we are experiencing drought.
That could actually save the State money overall and prevent considerable stress across the country. I hope to introduce something similar on Report Stage. I do not believe my amendment should have been ruled out of order because I believe it could actually save the State money rather than costing money.
I take on board what Senator Pauline O'Reilly has said. As I said, I am on two committees and there is always a conflict between them. While we do not always agree with everything that goes through pre-legislative scrutiny, I was very supportive of the work the committee did. I was also very supportive of our engagement on the Joint Committee on Agriculture, Food and Marine. Like every politician, I am entitled to reflect on the issue. Legislation is not made in the committee; it is made in the Houses of the Oireachtas, in these Chambers. This is where the legislation is teased out and debated. I tabled these amendments because I gave a commitment to the IFA. I do not take any of this personally. I am happy to put these amendments on the record because no one else stepped up to the plate to put them forward. That is the reality and I am happy to find myself in this position. I look forward to the Minister of State's reply.
I thank both Senators for their observations. The Department’s position on the registration threshold is the same as that proposed for the licensing threshold. The suggested amendment would remove the reference to the power of the Minister to reduce the threshold by ministerial order under section 16. This reduces the State’s ability to ensure ongoing protection of the environment and to ensure water bodies meet their environmental objectives.
The same powers exist for the EPA to advise the Minister on the registration threshold as for the licensing threshold. The Minister will have the power to reduce the registration threshold if necessary to provide for additional protection to our surface and ground waters.
I note the Minister of State's response.
Amendment put and declared lost.
Amendment No. 3 has been ruled out of order because it would impose a cost on the Exchequer.
Amendment No. 3 not moved.
Question proposed: "That section 2 stand part of the Bill."
I cannot speak on my amendment, which is very unfortunate given my previous comments. I have an issue with the lack of information on what exactly the costs are. I know the Bills Office has probably gone back to the Department and has been given advice from the Department on costings. To be fair to us in our roles as legislators we should have more information. I have sat where the Acting Chairperson is sitting and have heard the exact same arguments from many Senators when their amendments are ruled out of order. With that in mind, I have drafted a letter and sent it to the Committee on Parliamentary Privileges and Oversight, CPPO, today outlining my concerns over amendments being ruled out of order.
Question put and agreed to.
Sections 3 to 5, inclusive, agreed to.
SECTION 6
Government amendment No. 4:
In page 14, to delete lines 23 to 25 and substitute the following:
“(3) Where a notice under this Act is to be given—
(a) to the owner of land and there are 2 or more co-owners of the land, it shall be sufficient to give notice to one or more of those co-owners, or
(b) to the occupier of land and there are 2 or more persons who share occupation of the land, it shall be sufficient to give notice to one or more of those persons.”.
This amendment is to clarify the purpose of the subsection. The amendment has been drafted to make it clear that the Bill will avoid unnecessary duplication of notices where there are two or more occupiers of the land and to prevent an abstractor from avoiding regulation of their abstraction.
Amendment agreed to.
Section 6, as amended, agreed to.
Section 7 agreed to.
SECTION 8
Amendments Nos. 5 and 6 have been ruled out of order because they would impose a cost on the Exchequer.
Amendments Nos. 5 and 6 not moved.
I move amendment No. 7:
In page 16, between lines 9 and 10, to insert the following:
“(7) In making these regulations the Minister shall have particular regard to the species and habitats protected under the Habitats Directive and the Birds Directive.”.
May I speak to section 8?
The Senator should speak to the amendment first and then he can speak to the overall section.
I can speak to amendment No. 7. I also put on the record my unhappiness that our amendments have been ruled out of order as being a cost on the State. I do not agree, particularly given the nature of the amendments reflect the recommendations from the pre-legislative scrutiny report on the threshold levels. Why does Ireland seem to deem itself to have a different standard from our closest neighbours while having very similar geography and hydrology? I would like to hear the rationale. If we cannot move our amendments, I would at least like to hear the rationale for thinking that Ireland needs much higher thresholds than the North of Ireland, Scotland and Wales.
Amendment No. 7 states that "the Minister shall have particular regard to the species and habitats protected under the Habitats Directive and the Birds Directive." The rationale for this is that protected areas are defined in section 2 as including areas requiring special protection under the habitats and birds directive. The primary protection afforded to European sites under the habitats directive is set out in Article 6.3, which states, "Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives."
Part 4 of SI No. 477/2011 also places an onus on "Any public authority having or exercising functions, including consent functions, which may have implications for or effects on nature conservation shall exercise those functions in compliance with and, as appropriate, so as to secure compliance with, the requirements of the Habitats Directive and the Birds Directive..." We believe the Bill as drafted does not give due regard to the obligations under the habitats and birds directives because a project may have an indirect impact on a special area of conservation, SAC, or on a particular species, whereas the Minister of State is looking at the specifics. We believe it is not sufficiently robust to protect the State's obligations under the habitats and birds directives. Amendment No. 7 seeks to tighten that up requiring the Minister to have particular regard to species and habitats so that any plan for extraction of water will not have a negative knock-on impact.
I wish to speak to section 8.
I ask the Senator to await the Minister of State's reply to amendment No. 7.
This section relates to the making of regulations to address abstractions that do not require a licence or are in the process of applying to the EPA for a licence. The policy behind the development of this Bill is a risk-based approach to controlling abstractions and ensuring Ireland meets its obligations under the water framework directive.
Requirements relating to appropriate assessment screening under the habitats directive do not apply in regard to these abstractions that do not require a licence. Appropriate assessment only applies in instances where it is proposed to grant a consent of some kind, and no consent process is being proposed under this section. On these grounds the amendment cannot be accepted.
I note that the EPA has jurisdiction over areas that are vulnerable. It can require an appropriate assessment to be carried out. However, where no consent or authorisation is required, an appropriate assessment is not appropriate.
I refer to a decision that was taken that the term "project", while not defined in the habitats directive, asserts that the European Court of Justice has indicated that the term is to be given a broad interpretation. It may be surmised that most of the large abstractions can be viewed as projects for the purposes of the directive. The Bill as drafted does not give due regard to the obligations under the habitats and birds directives.
Amendment put and declared lost.
Question proposed: "That section 8 stand part of the Bill."
I am disappointed that our amendments were ruled out of order. I reiterate the concerns about the current threshold. Given that the primary purpose is to modernise the legislation, basing it on the Local Government (Water Pollution) Act 1977, legislation enacted over 40 years ago, seems contrary to the very aim of the Bill.
I said on Second Stage that the proposed threshold equates to approximately enough water to supply 42 households or fill 140 wheelie bins per day. There are at least 21 water-bottling plants in the country. None of them abstracts enough water to pass the proposed threshold for licensing. Only five abstract enough water to even require registration. As we pointed out before, the cumulative effect of the thresholds makes it unlikely that we will put on record Ireland's current abstraction levels. In this regard, what happens in the North has been pointed out. Our thresholds are a vast departure from recent trends across Europe, including in the North and Scotland.
Could the Minister of State clarify how the agency will determine whether abstraction below 25 cu. m is causing a deterioration if it is not registered? Could I clarify how the proposal is consistent with the finding of the Court of Justice of the European Union that member states must refuse the authorisation of projects where deterioration may occur?
I wish to refer again to the difference between 10 cu. m and 25 cu. m. We have had a discussion on what should be ruled in and out of order, but that is only one issue. I appeal to the Minister of State to rethink it. I am aware that the Chair of the Joint Committee on Housing, Local Government and Heritage asked me specifically to address this issue today, and that is why I tabled the amendment. I am aware that he will bring it up at a meeting of his committee. Given the very strong witness statements at meetings of the committee, the recommendation and the fact that there is legislation of the kind I propose in countries very close to us, it makes no sense for Ireland not to move forward with this. We are in a climate emergency and things will only get worse when it comes to water. We need to have a proper idea as to the amount of abstraction from our waterways. Notwithstanding the fact that these amendments have been ruled out of order, the Minister of State and his officials could still explore whether they can address this.
Section 8 states the Minister shall conduct a review of regulations for the purpose of achieving environmental objectives. The Minister is given powers in this regard.
On the risk-based approach and risk mitigation at watercourses, the EPA is the licensing authority and has powers to bring environmental considerations to bear. Statutory agencies have a role in respect of obligations.
I ask the Minister of State once again why we are asking to opt for a threshold that is in direct contrast with that of all our nearest neighbours and countries with similar levels of rainfall and similar hydrology. The Minister of State needs to describe the rationale for the thresholds. The joint committee heard from the experts and made a recommendation to reduce the threshold from 25 cu. m to 10 cu. m. The Office of Parliamentary Legal Advisers gave its opinion on it and said that, as matters stand, the level is inconsistent with the water framework directive and the assessment of existing abstractions below 25 cu. m or proposed abstractions. In its view, the thresholds appear to be arbitrary. Therefore, we need to hear a very clear rationale from the Minister of State as to why the thresholds were chosen, considering that they are completely out of kilter with those of the nearest countries with which we can compare ourselves.
The Environmental Protection Agency estimates that while several thousand abstract between 10 cu. m and 25 cu. m, these represent between 1.5% of the total water abstracted in Ireland. Regarding abstraction covered by the legislation, we are very clear that 99%-----
I would be interested in understanding where the figures have come from because, if nothing below 25 cu. m is registered, how will we know what the level of abstraction is? Perhaps the Minister of State has these details. I was looking for them today but could not find them because there is no registration. Therefore, how do we define what the abstraction is? We definitely know we have a problem with our watercourses and that Inland Fisheries Ireland has called for a reduction from 25 cu. m to 10 cu. m. I understand where the EPA is coming from. It has a certain remit, as does Inland Fisheries Ireland. The latter is concerned about fish stocks. I do not understand why it would be concerned if there were very little impact.
Since there are no more contributions, we will move on. The question is that section 8 stand part of the Bill. Is that agreed?
Does the Minister of State want to respond to the question?
Sorry. I asked whether anyone else wanted to contribute but no one registered a desire to do so. I am not stopping the Minister of State from-----
I just think it is important to hear the response.
Could I stop for ten minutes?
Of course.
Cuireadh an Seanad ar fionraí ar 4.37 p.m. agus cuireadh tús leis arís ar 5 p.m.
Sitting suspended at 4.37 p.m. and resumed at 5 p.m.