I propose to take Questions Nos. 1281 and 1289 together.
In 2011, the National Parks and Wildlife Service of my Department drafted the “Strategy for Conservation of the Freshwater Pearl Mussel in Ireland”. This Strategy proposed a particular focus of conservation efforts on the 8 best pearl mussel rivers in the country, and set out that it would not be possible to restore some of the 27 populations in SACs, including the Munster Blackwater main channel, because of the low number and poor condition of the remaining mussels, the bad status of the mussel habitat and the magnitude of the pressures in the catchment.
The Blackwater River SAC had been designated on the basis of 18 qualifying interests (9 habitats and 9 species), including the presence at the site of the freshwater pearl mussel, which the Habitats Directive requires be conserved through designation of SACs.
The European Union Environmental Objectives (Pearl Mussels) Regulations 2018 were made in order to remove the pearl mussel as a qualifying interest for the main channel of the Munster Blackwater River, in line with the 2011 Strategy, and in particular amending S.I. 296 of 2009 – the EU Environmental Objectives (Freshwater Pearl Mussel) Regulations, to that effect.
It was intended that the Conservation Objectives for the SAC would be altered so that the mussel would remain a qualifying interest in certain tributaries, but would no longer be so in the main channel of the river.
In December 2018, a judicial review was brought before the High Court, challenging the making of the 2018 Regulations. In light of the recent jurisprudence of the Court of Justice of the European Union in relation to the remit of the application of the legal requirements of the SEA Directive, my Department decided that the prudent course of action was to agree to an Order of Certiorari to have the making of the 2018 Regulations quashed. Accordingly, on 5 December 2019, the High Court by consent made an Order of Certiorari quashing the European Union Environmental Objectives (Pearl Mussels) Regulations 2018 (S.I. No. 355 of 2018).
My Department is currently reviewing the case and all of the evidence presented by affidavit. While the consent by the Department was agreed on foot of procedural matters, it was clear that the scientific evidence on which the 2011 strategy was based has changed in light of further knowledge; and it is clear that no change to the regulations would be possible without extensive survey work in the river, a substantial and difficult task give the length and size of the river, the high speed of the flow and the depth and dark nature of the water. The necessary survey work would be likely to require 2 years to complete, given reasonable weather and river conditions.