Joint Committee on Housing, Planning and Local Government díospóireacht -
Thursday, 20 Jun 2019

Scrutiny of the Local Government (Water Pollution) (Amendment) Bill 2018

Vice Chairman

We are now in public session. At the request of the broadcasting services members and visitors in the Public Gallery are asked to ensure that for the duration of the meeting their mobile phones are turned off completely or switched to airplane, safe or flight mode depending on their device. It is not sufficient to put phones in silent mode as they will maintain a level of interference with the broadcasting system.

No. 7 today is detailed scrutiny of Local Government (Water Pollution) (Amendment) Bill 2018. I welcome to today's meeting Mr. Joseph Gilhooly, from Leitrim County Council; Dr. Tom Ryan, Mr. Noel Byrne and Mr. Darragh Page from the Environmental Protection Agency, EPA; and, Mr. Feargal Ó Coigligh and Mr. David Flynn from the Department of Housing, Planning and Local Government.

I draw the attention of witnesses to the fact that by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and they continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable.

Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House or an official either by name or in such a way as to make him or her identifiable.

I now call on Mr. Gilhooly to make his opening statement.

Mr. Joseph Gilhooly

I am deputy chief executive and director of services at Leitrim County Council with responsibility for economic development, planning and infrastructural services with the council.

The Water Services Act 2007 places a duty of care on homeowners to ensure that all wastewater treatment systems are kept so as not to cause a risk to human health or the environment or create a nuisance through odours. For new builds, site characterisation must be carried out in accordance with the EPA code of practice for wastewater treatment and disposal systems serving single houses 2009. In regard to this code of practice particular attention is drawn to the provision that where the T-test is in excess of 90 then the site is unsuitable for discharge of treated effluent to the ground.

In County Leitrim, the landscape is characterised by drumlins which contain high clay content. Unfortunately, due to the underlying nature of the sub-soils which are present across the majority of our county, estimated at 87% of our soils, the soil percolation tests fail to meet the acceptable percolation rates required to comply with the EPA code of practice and the sites are deemed unsuitable for discharge of treated wastewater or effluent to the ground.

This is proving to be a significant impediment to the granting of planning permission for individual dwellings in the countryside by Leitrim County Council's planning authority and indeed is preventing many prospective applicants making applications in the first instance as agents are aware that the subject sites will be deemed unsuitable once the soil percolation tests are undertaken. This situation is not unique to County Leitrim but no county is affected to the same extent as County Leitrim.

The number of planning permissions granted for individual houses reliant on individual wastewater treatment systems is set out in a table which I have supplied to the committee with a copy of this statement. It ranges from four in 2017 to 13 in 2018. The figures in preceding years from 2012 are similar.

Leitrim is a sparsely populated county with the 2016 census showing a population of 32,044. The county is highly rural in nature with the vast majority of the population living in a non-urban environment. This profile of the county represents the history and culture of Leitrim with a high proportion of small family farms. In the context of this fabric the imposition of the percolation standards through the 2009 code of practice has had what the council believes to be unintended consequences. These consequences are most acutely felt in the small farm holding scenario where, despite many acres of land being available, the farmer's offspring, son or daughter, who may wish to establish their home on the family farm to continue to farm the land and be of support to their aging parents, will fail to secure planning permission. The compounding effect of these restrictions for almost ten years is a contributing factor to the continued depopulation of areas of rural County Leitrim which will have a corresponding effect on the sustainability of the surrounding community and its facilities and services such as primary schools etc.

In this regard Leitrim County Council, while maintaining a responsible attitude to the protection of the environment, as is required by law, set about identifying options that could be explored to provide a wastewater treatment system solution that would be suitable, acceptable and affordable. In addition, the council has at all times maintained a responsible attitude through its county development plan to rural planning with a variety of policies that ensure the appropriate establishment of one-off rural housing in Leitrim and would not see the restrictions of the code of practice as necessary or relevant from a rural planning control tool perspective.

The existing EPA code of practice is under review with a new document expected to be published in the next couple of months. It is anticipated that the review of the code of practice may widen slightly the acceptable parameters of percolation rates which will result in a limited number of marginal sites in County Leitrim now becoming acceptable for discharge of treated effluent to ground but, as only marginal in nature, it is felt that the Council must continue to pursue these alternative solutions.

Leitrim County Council has been pursuing innovative solutions to facilitate the design of a wastewater treatment and disposal facility that would be suitable in the poor draining soils. Through this process the council identified a treatment solution that has the potential to have a zero discharge or near-zero discharge of effluent and, if successful, would allow sites with poor percolation characteristics to treat the discharge of wastewater in a manner which was not prejudicial to public health or the protection of the environment. The nature of the wastewater treatment system is a willow-based system constructed within a sealed soil basin. The council has engaged with Dr. Laurence Gill, a professor in environmental engineering in the school of engineering, Trinity College Dublin as academic support to the process. Dr. Gill has extensive experience in assessing the operation of individual wastewater treatment systems and was co-author of the EPA publication that Deputy Kenny mentioned earlier.

The willow evapo-transpiration system consists of a sealed basin that has been refilled with the original soil excavated on site in order to install an impermeable liner and distribution pipe network, which has then been planted with willow cuttings. The system receives wastewater effluent fed to the base of the basin and treated and removed via evapo-transpiration, primarily during the growing season when the willow trees have high water demand but it also occurs on a limited basis all year round. Results from 12 trial systems to date have shown that the system provides excellent pollutant attenuation greatly reducing organic, nutrient and indicator bacteria. Through the most recent design concepts the level of rainfall entering the system will be significantly reduced if not eliminated thus ensuring minimal if any overflow from the system and if such were to happen tests available already show the characteristics of such escaped liquid to be similar to ground run-off.

Currently the water pollution legislation provides for discharges to ground and surface waters. In regard to domestic waste water treatment systems there is an exemption for discharge to ground where the quantity to be discharged is less than 5 m3 per day. However, a discharge to surface waters can only occur under licence from the local authority. As a consequence a detailed application process is required in order to comply with the legislative requirements. The application process is lengthy and requires significant data collection on the identified receiving waters such as all year round flows and assimilation capacity along with a rigorous monitoring regime thereafter in regard to items such as ongoing sampling analysis, inspection chambers, record keeping and licence renewal processes. This system of licensing discharges is more designed to deal with matters such as industrial by-products rather than domestic waste water treatment systems.

A pilot scheme is currently proposed in Leitrim to further test the willow system for zero discharge, that there is no discharge or escape of effluent from the willow plantation basin at any time based on a more refined design taking learning from the trials to date. However, on other trials to date in Ireland the objective of zero discharge from the system has not been fully realised. In addition to that detailed earlier in regard to attenuation what is also known is that the willow system does deliver a significantly reduced level of effluent discharge, with discharge only in winter months.

Taking into account the research already available what is now required is a means to dispose of the limited, if any, resulting discharge proven to be primarily arising from rainfall. The option for this discharge is to proceed to surface discharge only, given that the ground conditions on the subject site prevents discharge to ground. Given the proven reduced scale of effluent, its proven standard and the fact that the discharge arises during the wetter times of the year, there is a case for the development, in the context of output from these systems, for a less rigorous regulatory regime that is both appropriate and proportionate and which would therefore move away from the rigours of the current authorisation process for discharge to surface waters.

This reformed regulatory process can be limited to provide only for installations meeting certain design standards based on the experience of the willow systems to date, for example. The data available also provides the basis for both design guidelines for the system and design parameters for this discharge, particularly in regard to volumes, effluent standard, and so on.

Through the work carried out nationally to date, along with the work of Leitrim County Council, there is now an immediate opportunity to address the unintended consequences of the provisions of the code of practice of 2009 in regard to sites of low permeability. This opportunity relates to the use of the domestic wastewater evapotranspiration treatment system, coupled with the requested regulatory reform under the Local Government (Water Pollution) Act 1977. This would provide a clear option for the provision of a new rural dwelling where the housing need to be accommodated in rural Leitrim is of an absolute requirement, which in turn could be of general application in areas of the country with similar soil conditions. The pilot scheme in Leitrim will continue to pursue the objective of zero discharge, which would be the ultimate preferred outcome.

Vice Chairman

Thank you. I call Dr. Tom Ryan to make his presentation.

Dr. Tom Ryan

I thank the committee for inviting the Environmental Protection Agency to assist in the detailed scrutiny of the Local Government (Water Pollution) (Amendment) Bill 2018. I am joined by my colleagues from the EPA’s Office of Environmental Enforcement, OEE, Mr. Darragh Page and Mr. Noel Byrne.

As the committee will be aware, the EPA is an independent statutory body established under the Environmental Protection Agency Act 1992. Our organisational vision is to protect and improve the environment as a valuable asset for the people of Ireland, and also to protect our people and the environment from the harmful effects of radiation and pollution. To that end, the EPA performs a number of functions that are particularly pertinent to the current discussions, including monitoring the quality of the Irish environment, in particular the quality of our water courses. We are responsible for the development of the national inspection plan for domestic wastewater treatment systems, and the co-ordination and reporting on the implementation of that plan. We develop and maintain a code of practice on wastewater treatment and disposal systems serving single houses, as mentioned by previous speakers.

With regard to water quality, I would highlight a number of troubling findings in recent EPA reports that are relevant to our discussions. Water quality in Irish waters has deteriorated, with a net overall decline of 3% in good water quality between 2015 and 2017. Long-term loss of high-quality river sites is continuing, with a further 0.6% decline since 2015. The EPA groundwater national monitoring programme found that 43% of groundwater monitoring wells were contaminated with faecal coliforms in 2017. These findings illustrate the vulnerability of our ground waters, which provide much of our drinking water in rural Ireland, as well as the vulnerability of our surface waters, where we are failing to arrest the continued decline in quality. These are priority, shared challenges in terms of human health protection and environmental protection.

The Water Services Act 2007, as amended, and associated regulations, among other things, provide for inspections of domestic wastewater treatment systems by water services authorities. The EPA is responsible for preparing the national inspection plan, which specifies the minimum number of inspections across the country for each local authority area. Inspections target areas where there is the greatest potential for improving water quality and improving the protection of human health. The EPA reports regularly on the implementation of the plan and the report for the 2017-18 period, due for publication shortly, will show the following: almost half of the domestic wastewater treatment systems inspected in the reporting period failed the inspection, which is consistent with previous years and shows persistent problems with existing systems; failures are due to system construction defects and systems not being maintained and cleaned properly; over one quarter of systems were found to be causing a risk to the environment or human health; and almost one third of systems that failed during the 2013-18 period are still not fixed, with many of those unresolved for more than one year.

Domestic wastewater treatment systems are a risk to human health and the environment if they are not constructed and maintained properly. They can contaminate a householder’s drinking water well or their neighbour’s well. In this context, it should be noted that Ireland has the highest rate of VTEC infection in the EU, with over 1,100 cases in 2018. One possible source of this infection is contaminated drinking water from private wells.

The EPA published the code of practice on wastewater treatment and disposal systems serving single houses in 2009. The code is referenced throughout technical guidance document H on drainage and wastewater disposal developed under the building regulations. The purpose of the code is to ensure that domestic wastewater treatment systems are constructed and maintained properly so they do not contaminate groundwater and surface waters and endanger people’s health. Essentially, the code sets out how to determine if a site is suitable for the installation of a treatment system and the standards necessary for the construction and maintenance of the system, providing several construction options, depending on the site constraints and householder requirements.

The current code was published over a decade ago and the EPA is cognisant of the importance of ensuring that national guidelines reflect available and emerging technologies and techniques. To that end, research funded by the EPA was recently conducted through a collaboration between researchers at Trinity College Dublin, National University of Ireland Galway and National University of Ireland Maynooth to examine further domestic wastewater treatment options in areas of low permeability soils. This research identified two new technologies - low pressure pipe and drip dispersal systems - which can operate in low permeability soils, increasing the percolation limits and, hence, providing greater flexibility for householders and planners.

These new technologies and the associated increase in the percolation limits are incorporated in the draft revised code which was published in December 2018 for three months of consultation. During the consultation period, 36 submissions were received, including almost 500 individual comments on the code. The code revision process is being overseen by a steering committee which is currently considering the submissions, with a view to finalising the revised code by end of the year. The steering committee is comprised of representatives of the Department of Housing, Planning and Local Government and local authorities, as well as industry and the research community.

The code of practice represents the best available technical and scientific knowledge for domestic wastewater treatment systems. For homeowners, it provides the assurance of having their site assessed to a proper standard and that the system chosen will operate satisfactorily in the long term, protecting their health, the health of their neighbours and the environment. I assure the committee that the EPA will continue to work closely with local authorities, Departments and others to assist in the assessment of possible solutions and strategies in this area, and to support further research where that is identified, with the primary objective of ensuring the protection of people's health and the environment.

Vice Chairman

Thank you. I call Mr. Ó Coigligh.

Mr. Feargal Ó Coigligh

I thank the committee for the invitation to attend today as part of the detailed scrutiny of the Bill. I am joined by my colleague, Mr. David Flynn, principal adviser. By way of preliminary comment, the Department understands and appreciates the intent behind the Private Members’ Bill, that is, to make possible and facilitate the choice of those who wish to live in rural communities outside cities, towns and villages.

In the context of the rationale behind the Bill, the Minister of State, Deputy Damien English, last week organised a meeting with Deputy Martin Kenny and a delegation of public representatives and officials from Leitrim County Council to discuss the particular challenges of providing domestic wastewater treatment systems in Leitrim.

As we heard this morning, Leitrim County Council, with the support of the EPA, has been working with Trinity College to investigate treatment systems that use willow beds. The Department agreed at the meeting last week to follow up with a more detailed technical engagement with the county council and the EPA to explore how a pilot project could be supported. The Department also noted that there was unanimity at the meeting regarding any solutions which may be developed and which do not give rise to a threat to human health and the environment. That is in line with the current general statutory requirement not to allow the deterioration of the chemical or ecological status of bodies of water bodies, such as rivers, lakes, estuaries and coastal waters, and groundwater. The imperative to maintain good water quality is the right thing to do in any event in to manage risk and for the protection of human health.

The Bill seeks to make it easier to issue discharge licences under the Water Pollution Acts in cases where EPA-approved domestic wastewater treatment systems would not be adequate. However, as set out in the Department's letter to the committee, the Department is concerned that the Bill does not contain adequate safeguards to ensure Irish law is compliant with the EU water framework directive or would not give rise to potential significant threat to the environment and public health.

Ireland has high dependence on individual wastewater treatment systems. We have already been found guilty by the Court of Justice of the European Union of failure to put in place adequate safeguards for the environmental performance of these systems. The inspection regime and the current plans the Department has put in place are in response to that judgment. In 2012, the court found that Ireland had failed take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without processes or methods that could harm the environment. The judgment led to financial penalties of €2.76 million and had implications for 440,000 wastewater treatment systems serving single houses. As a result, the Water Services (Amendment) Act 2012 introduced registration and inspection arrangements for domestic wastewater treatment systems. I am highlighting this because the Bill before us seeks to amend section 4 of the Local Government (Water Pollution) Act 1977 to provide for the granting of discharge licences to surface water in order to allow for the development of single houses.

We have some experience, primarily in Wexford, where the local authority used discharge licences to facilitate house construction in the 2000s. The difficulties encountered by householders in managing licensed discharges to surface waters included the technical challenges of managing wastewater treatment systems and achieving the required effluent standard. Where difficulties were encountered, such as the malfunctioning of the domestic wastewater treatment system causing pollution to the receiving waters, significant local issues arose, including public health concerns, the use of water for livestock drinking and problems with foul odours. The majority of these licences have had to be revoked at considerable cost to householders.

Since 2009, Wexford County Council has worked in collaboration with householders to find sustainable solutions to minimise the impact of these legacy systems. In many cases, householders requested that licences be terminated because of the difficulties they have encountered in managing the systems. In these instances, alternative solutions not involving direct discharges to receiving waters have been developed in consultation with Wexford County Council. In most cases, the alternative solutions placed a significant additional financial burden on householders.

It is also important to note, as we heard from the EPA, that there are reliable and sustainable technical solutions available to those building new houses under the current regulatory framework for domestic wastewater treatment systems. In addition to septic tanks, the feasibility of using alternative treatment systems for low permeability soils, such as low pressure pipe and drip dispersal systems, has been researched. In the context of the new guidelines the EPA is developing such alternatives may be permissible for some areas that may have previously failed percolation tests and are unable to support percolation areas.

From an environmental perspective, the proposal in the Bill, as drafted, would pose a significant risk to the water quality in the receiving rivers, lakes and estuarine waters in rural areas. This is because discharges of septic tank effluents directly to surface waters generally pose a higher risk to water quality than discharging to groundwater via a septic tank percolation area. The percolation area which domestic treatment systems use is a vital component in treating and reducing the pollutant load of the wastewater effluent. Making it easier to license less safe effluent discharge options is likely to pose unacceptable risks.

Effluent discharging to surface waters from domestic-scale wastewater treatment systems poses a significant risk to the water quality in the receiving waters. The consequence is likely to be degraded quality in receiving waters, which would be contrary to our legal obligations, with all the attendant increased risks to human health. In particular, section 4(13)(a) appears to suggest that a local authority must issue a licence under section 4 of the Local Government (Water Pollution) Act 1977 regardless of whether the discharge would cause deterioration in water quality and would be contrary to any existing water policy and associated water quality standards and objectives. I heard Deputy Martin Kenny's comment on whether that was a necessity. The Department considers that it opens up an unacceptable risk. It would leave a local authority exposed to the risk of legal action for breaching its duty under a number of legislative provisions intended to protect human health and the environment. For all the foregoing reasons, the Department has significant concerns about the Bill, but we would be happy to explore these in more detail with the committee. In light of the conversations at the meeting last week, the positive attitude adopted by Leitrim County Council and the new guidelines being developed by the EPA, it seems there are opportunities to come at this issue and the particular problem facing County Leitrim in a different way that could help the situation without the need for the blunt instrument of legislation that could cause more problems than it would solve.

Deputy Eoin Ó Broin

My thanks to our three guests. This committee takes its responsibilities seriously when it comes to issues of water quality. The representatives from the EPA and the Department will know that we have spent considerable time scrutinising the important report on wastewater treatment, the risk arising from treatment plants and the risk on the private side which the agency publishes annually. When we look at this legislation, we are looking at it through not only the lens of trying to facilitate people to live in the communities into which they were born but also to keep focus on maintaining high-quality water systems. That is certainly my focus.

The challenge is to try to find a way of ensuring that, where in all other instances a planning applicant would otherwise get planning permission but for this issue, there is some way of solving this problem that does not in any way compromise the quality of our water system. That is the challenge that Deputy Martin Kenny set himself and it is what we are discussing today. I have three questions, one of each of our guests, that focus around this key challenge. If we can fix that, then we have a solution that meets the interests of everyone here, guests and members alike.

My first question is for Dr. Ryan. Deputy Martin Kenny made the case that it is possible to have a zero effect even if we have zero discharge. I am interested in hearing the EPA's view on that. To what extent is it possible? To what extent does natural technology, such as that incorporating reed and willow beds and as outlined by Deputy Martin Kenny and Mr. Gilhooly, allow us to move towards that? If we are not there 100%, can the EPA offer a view on how long it might take for such systems to achieve that?

I understand what Mr. Ó Coigligh stated but section 4(13)(b) empowers the Minister to make regulations for the purposes of the granting of these licences. Mr. Ó Coigligh said that this is a blunt instrument. Yet, even if the legislation were to pass, the ball would then fall into the court of the Department and Mr. Ó Coigligh, who is the lead person to advise the Minister on how to draft such regulations. I would never accuse Mr. Ó Coigligh of being blunt in his work with the Department so I imagine he could find a way to craft the regulations in such a way as to meet our legal obligations and protect water resources. Will Mr. Ó Coigligh respond to that? Surely regulations give the Minister a level of control and nuance for something important like this.

Mr. Ó Coigligh mentioned two new technologies that are coming onstream that should allow the possibility of this problem being overcome in dense soil areas. Can the witnesses tell me whether the two technologies would be much use in County Leitrim where a large section of the county has failed the percolation tests? Please tell us a little more about the other work done to develop technologies that would meet planning and water quality requirements.

Vice Chairman

I propose that we start with Dr. Ryan.

Dr. Tom Ryan

I thank Deputy Ó Broin for his question. I will refer to the current technologies for treating domestic wastewater and those that are incorporated into the revised code that we have just consulted on that allow greater flexibility in areas of low permeability soil. Once one goes above a certain soil permeability level where the soil is compacted there is nowhere for effluent water to be discharged. Therefore, dangerous pathogens and E. coli accumulate on the property in ponds and gives rise to significant health risks for the people in the dwelling, the children, the neighbours and water in wells. That is the difficulty with low permeability soils. The code extends flexibility because of the new technologies. Therefore, we can push the limit somewhat and, as has been signalled, that may allow some permissions to be granted in the right circumstances. Planners will consider that.

Looking to the future, the willow bed evapo-transpiration systems are promising. We have been happy to support the research but more work needs to be done. For certain elements of the discharge willow beds are quite effective but it does not allow for zero discharge. That means there are some liquids. More important, it also means that the system is not quite effective at removing the more hazardous pathogens, in particular E. coli. It is not a case that there is no impact. There could be a significant impact with the accumulation of residual waters with E. coli. The technology looks promising because it is effective at removing some of the other elements but this is a stumbling block worthy of pursuing further research. In terms of a timeframe for research, it could take a couple of seasons to establish but there are ideas being contemplated as to how these systems might be more effective. It is an area that is well worth pursuing and the EPA would be happy to support such work.

Mr. Feargal Ó Coigligh

Deputy Ó Broin has put his finger on the nub of the Bill. Section 2 is a very general provision and states that notwithstanding anything else in the law nothing shall prevent a local authority issuing a licence. The provision opens the door very wide and poses a danger. The provision is then pulled back when it is stipulated that the provision is controlled by regulation.

One could work with the Bill but as people are probably very much aware now in terms of the approach to legislation these days, following judgments by the Supreme Court, legislation must set out policies and principles. We would need to do a lot of work on the Bill to set out the policies and principles around which the Minister would make regulations. We are no longer allowed to legislate saying that the Minister can just go away and make regulations on anything. That has been found out. We need to be clear in this piece of legislation regarding what the regulations will cover and what is the framework within which the regulations operate. That will then bring one to a simple premise that the regulations must ensure that people's health and the environment are protected. That would be the context in which regulations are developed.

The regulations would then bring us to a point where the Minister would probably pass the EPA without developing the relevant standards to ensure that discharges do not impact on our health and environment. That brings us back to where we are now, which is codes of practice and regulatory regimes that are designed to ensure that health and the environment are not impacted. I suspect we could do a huge amount of work and spend a huge amount of time on legislating but that would not actually bring us any further than what the current legal position is. What we suggested when we met last week was to have greater technical discussions between the county council, ourselves and the EPA and see where that brings us. If those discussions find that legislative or regulatory tweaks are required then that could inform how we would approach the matter in the future. There could be tweaks within the existing code without the need for new legislation.

Indeed, as we see, even within the current regime as Dr. Ryan outlined, the EPA is already, through the new guidelines that are being developed, allowing for new technologies that will give greater scope. That is a slightly convoluted answer to say that by the time we go through a significant legislation process we may not actually progress the issue a huge amount whereas if we, the EPA and the county council work closely through guidelines we may help to resolve issues in some of these areas.

Mr. Joseph Gilhooly

I am familiar with the amendments in the draft code of practice that was published and referred to earlier in terms of the technology around the drip dispersal system and the low pressure piping system. The Deputy must take into account that there is an acute problem with soils in County Leitrim. One does not have many borderline cases - one is either okay or far from okay. Allowing for the new systems that have been suggested in the draft code, if it is approved, and the changes in the level of the T-test that would arise, because those systems would allow a higher T-test to be acceptable, we would be of the view that that would have a very limited positive impact on the county because of the soil types we have. It does not really matter if one has a T-test of 90, 110, 120 or 130. The new technologies are those that can handle the system and allow for a higher level of T-test. As alluded to earlier, there are situations where one is successful and data shows we are granting one-off houses in a very limited number of areas. We would welcome any positive adjustment to the code of practice. It is not that we are negative towards it; we would welcome it and be delighted to see it coming. However, it would not be a solution sufficient to the degree of need that exists in County Leitrim.

In terms of where we are at with our work at the moment and going forward, I am familiar with the space in so far as I was assigned to the planning department as director in September 2010 and this issue was the first thing on my desk when I arrived. I had a period of learning and coming up to speed with what was happening and what options did and did not exist. We worked our way through that from both official and political perspectives and reached a point in 2012 and 2013 where we started to consider piloting various options. We considered what was out there that could work and then we piloted them in the context of County Leitrim and Ireland, if one considers this internationally. That work has been ongoing and we have accumulated a certain level of knowledge and understanding. I have been with this process since then and believe we are on the cusp of making some progress. I am very much encouraged by the meeting that we had recently with my colleagues here from the Department and the EPA, all of whom have emphasised their willingness to work closely with us to assist in coming up with strategies to deploy the options. Examining ways to work collaboratively is very important to us.

We have worked in isolation for a good while, and I do not mean this negatively, but we had a sense that we would go ahead, do some work, pilot something, get research, and then, when we had all our papers together, we would arrive at the door of the Department or the EPA with all this done, asking if we could try to find some way of implementing it on a more general application basis. We have the opportunity here to cut that stage out, so that we might move forward collaboratively and collectively from next week when we intend to meet on this. We would no longer be using a two-pronged approach, whereby, having done a certain level of research, we set about establishing something we think works, compile our reports, and then have to go into sales mode to get the success of the information and research we have done across to others. If we do that together, we can save a lot of time.

We are encouraged by the work we have been doing with Trinity College on what the next phase of the willow system pilot would look like. At this stage, we are 100% focused on the willow evapo-transpiration system as a solution worth pursuing. We are encouraged by the existing research on how to strip out more of the rainfall impact on the system, which could be achievable, but its impact on the efficiency of the system has to be tested and that is why we need to pilot it. Calculations from some previous reports, which were alluded to earlier, suggested a reduction of 60% in the rainfall hitting the system, which could make the difference in there being discharge or not. We think that figure is achievable, provided the revised design process is still efficient and deals with the system properly. We are encouraged, and are looking forward to proceeding along the lines that have been set out collectively and collaboratively with the EPA and the Department.

Deputy Martin Kenny

I thank the Chairman. Dr. Ryan said the ET system does a very good job in general, but he has particular issues around E. coli and how it can be dealt with. Are there possibilities there? Many systems in the past have had a polishing element at the end which eliminates E.coli. Does Dr. Ryan think it would be possible to add a polishing system to ET systems in order to do that, or does he believe further refinement and research on the ET system on its own may be able to achieve a reduction to negligible levels that will not have an impact?

Mr. Ó Coigligh mentioned that the Minister might regulate this when the doors are fully opened and pulled back a bit. The intention is for the Minister to set out very strict regulations which would ensure the impact on the environment is eliminated. The difficulty we have is with the zero discharge element. Even with collaboration and the good work that has been done by Leitrim County Council, the EPA and others, we will come to a stage where, while the discharge will be extremely small, will have been reduced considerably and will be of a very high standard which will have zero impact in the future, we will still have discharge. Mr. Ó Coigligh says there may be another way to deal with that discharge, other than putting a licence in place. Can he explain to me where that may arise from, or if it is possible?

Mr. Gilhooly referred to the soil types in Leitrim, of which a large quantity are impermeable, and so we seldom have many areas there which are borderline. Moving from a T 90 to a T 120 will make no difference in the vast majority of cases, and that is the reality because we have very few borderline cases. In that context, if we are going to try to achieve as close to zero discharge as possible, with zero impact, how long will it take to finish that research? Dr. Ryan mentioned that it might take a couple of seasons. Considering the volume of work that has already been done, could we come to this quickly? I am conscious of the sense of panic, and of real frustration, that exists both in Leitrim and in many rural communities, where people feel they are being shut down and that nobody cares about them. We need to deal with this. I feel frustrated that we have been looking for solutions for ten years, and people are saying it is a shame on our houses that we could not come up with a solution to this sooner. We need to put an intense focus on this in order to get a solution in place as quickly as possible. Perhaps Mr. Gilhooly could outline an appropriate timeframe to come to a solution here. It is important that we have the technology right and we feel the solution can work, but we also need to ensure the legislation and regulations are in place in advance, so people can move on the solution as soon as it is reached.

Chairman

We will start with Dr. Ryan.

Dr. Tom Ryan

I thank the Deputy for his questions. We empathise with the challenges people, planners, and regulators are facing in the area, in the context of poor soil percolation and the social issues around it. It is a challenging environment to work in. A key aspect from our code of practice is protecting people in their homes to make sure the systems they have in place are not injurious to either their health or that of their neighbours and children. Will willow evapo-transpiration systems, working in some combination with existing systems, provide zero-impact? The current research shows they are very good, and are getting there, but are not there yet. It does look promising and is worthy of support, and the EPA is working with colleagues to support that.

Deputy Martin Kenny

In the EPA report that has already been produced the conclusions stated:

However, chemical and microbiological sampling of the water in the sumps and ponded water over the winter periods showed improved water quality, equivalent to surface runoff from the other systems that had not been fed any effluent

If the runoff was equal to areas with no effluent, that suggests there is already E. coli in the groundwater. In other words, dirty water is being compared with dirty water rather than clean water. Does Dr. Ryan get where I am coming from? It seems the EPA is, in that sense, trying to achieve something that is not achievable, or is that an incorrect conclusion to draw?

Dr. Tom Ryan

I have the report on the research that was done here in front of me, and these systems are performing very well for some of the constituents of the receiving effluent. Part of the study looked at where effluent, which is not raw effluent, is put into the system, and compared it, and while it does work very well, it does not work for E. coli. This is the real problem. These systems are not yet at a level of efficiency where they can remove E. coli, although they are getting there. It may not have anything to do with a combination of polishing, but may be related to the design, or protecting the system from the ingress of rainwater. Those are the kinds of issues future research would look at. They are doing very well on some of the nutrients but are not doing as well on E. coli, which is the key one. If a system like that is put in, there will be residual E. coli ponding and building in the locality, which will cause attendant health risks.

Mr. Feargal Ó Coigligh

In relation to possible regulatory change, it is important to go back to the Local Government (Water Pollution) Act 1977.

I would be reluctant to return to an Act in the environmental area that dates back to that time but, under section 4, it provides for licensing and, under section 6, it gives more detail on what the Minister can require under regulations, the form of the licence, the information to be specified, evidence that must be provided and so on. The regulations set out that type of heavy regime that was referenced. There are always ways to adjust regulations within the existing statute. We would suggest we would work with the revised Environmental Protection Agency, EPA guidelines and the dialogue process we have set up with Leitrim County Council, come to conclusions and give the rationale for adjusting the regulatory regime under the existing Act. There is a process involved in that. For example, in supporting ongoing pilot projects, on which the Department would be happy to work with the EPA and Leitrim County Council, if we put a credible project together, for a pilot phase we would still need a heavy regime of information gathering and monitoring to ensure the project can prove itself. That would inform us in being able to say the system works well. Under the existing Act, one could have a lighter form of licence but we would first need the evidence to support that. We are happy to engage to see where that might bring us.

Deputy Martin Kenny

Would it be a statutory instrument that would bring us to that point, which could be moved more speedily than legislation?

Mr. Feargal Ó Coigligh

A regulation is a statutory instrument.

Deputy Martin Kenny

A statutory instrument could be brought forward. Does Mr. Ó Coigligh believe it is possible to do that within the confines of the legislation?

Mr. Feargal Ó Coigligh

Yes, within the provisions of the existing Act, but we would still need an evidential base to bring it to that point. We are happy to work with all parties to see where that might bring us.

Mr. Joseph Gilhooly

It is difficult to put one's finger on the timescale that would be involved. We would hope we could bring forward considerable learning from the existing trials. We would then have to examine trialling the systems that have a reform design based on what we are trying to achieve or the remaining elements that need to be addressed to ensure the system can work most effectively. It will take time to trial a system. Currently, there is no authorised development process to proceed with a trial in Leitrim. One would be depending on the design of the system, getting planning approval for it and constructing it. The system is a natural one. It must be constructed and become established and that will take some time. It could be done in conjunction with the construction of a property and the system ideally would be ready to receive effluent when the house is ready for occupation and from that point we would move to the monitoring stage.

We would work collectively and there would be an ongoing process of engagement. We would take the information from the trials, reports and analysis. After the system is established it would receive effluent and the system would have a chance to mature. Early analysis could be informative in indicating if we would have turned a corner in dealing with issues such as the escape of effluent, the composition of the effluent and if success has been achieved in separating the rainfall element with it being repelled from rather than absorbed into and discharged out of the system. We could assess if the rainfall element has been successfully dealt with, that the system is performing as well as previous systems, notwithstanding its new design and that it provides more of a cover. We would be able to show what is within the system is pure effluent, that there would be the discharge of effluent and we would be able to measure the parameters and design changes to allow us to deal with some issues such as E.coli.

That is the path we are on and it is not a short one. There is no magic formula. We would like to think this year much of the ground work could be done through the meetings we expect to have and having sites at an approval stage that would be good to proceed by spring next year. We would be looking at two years from then but that might be an early timeframe. I might have caused people some concern as they might think that within a year of the system functioning we would have research on which we could depend. We would certainly start to identify the steps being taken in the design that would have a meaningful impact. We would develop competence quickly to show the outcome of the system after the first year of occupation in the house was moving in the right direction and addressing any of the remaining issues.

There are a number of stakeholders involved other than those in this committee room. Individuals are looking to their future in Leitrim or in other counties where this problem presents and there are other stakeholders who are concerned about environmental impacts. It is important we would be able to show people we have quality assured each step as we go along so that we would not be raising any false expectations and that in setting out to achieve the best we can that we would not be generating concern about other issues within the big picture.

Deputy Eoin Ó Broin

I thank the witnesses for those answers. We must seriously consider all the information. I hear what the witnesses are saying particularly about promoting public health and meeting our EU obligations. I am not convinced this legislation would require complicated drafting to ensure that whatever licensing regime is in place would have to be compliant with both of those elements. Deputy Kenny is very reasonable and I am sure a friendly amendment put forward to provide for working in those two elements would address some of the witnesses' concerns. Ultimately, it is still a statutory instrument or a regulation that will be required and will have to be based on the evidence that everybody has outlined. We have learned in the past two years that even imperfectly drafted legislation from the Opposition can put a little extra pressure on the Government and subsequently on the Department responsible to do something that probably would not have happened in that timescale if we had not been doing what we were doing. Student accommodation is an obvious example of that. Another is the microbeads legislation, Second Stage of which we will be debating later today.

Given that Mr. Gilhooley has spoken about being on the cusp of something, I would be of a mind to take on board what he has said but by way of sensible amendments to this legislation to keep the pressure on the officials so that the positive developments we have heard from everybody continue to be positive. I detect some frustration has been experienced by Mr. Gilhooly who diplomatically described having worked on this issue for nine or then years. If we are now in a really good space, that is a positive development. I would say Deputy Kenny would be of a mind, and I would support him, to apply some helpful pressure on the officials. I urge members to work with us on the committee and rather than dismissing the expertise of the Department to work some of that into Committee Stage through sensible amendments to keep the process moving forward.

Vice Chairman

I have a few remarks to make. Deputy Ó Broin said, as did Deputy Kenny, that it is not intention of this Bill or of the members of the committee to put public health at risk. Equally, no individual living in a rural area would want to contaminate their neighbours' well that supplies their drinking water. However, families are trying to build a home on their own land at a time when we have a housing crisis. I have been dealing with the issue of one-off rural housing for 15 years and it has consumed most of my time. Sometimes rural people get the feeling, as do I, that one off rural housing is looked on negatively all the way from Europe, down to national level, down to local level. There is a sense that one off rural housing is not wanted. That is the basis on which an applicant is starting and they have to convert a number of negatives to positives to build a home for their family.

To put some matters in context, Mr. Ó Cogligh said that we incurred financial penalties of €2.76 million in respect of one-off 440 wastewater treatment facilities. What other fines is our State incurring in respect of the discharges from our public wastewater facilities?

If we were to compare like with like, which is the lesser of the two evils? I often wonder because there is a significant lack of investment in public wastewater infrastructure and we are being fined for that. This is to put it into perspective that not just rural houses pollute our rivers and streams. Our public wastewater treatment plants do the same. The witnesses mentioned Wexford with regard to private housing developments. I concur that we have one or two in Wicklow that have continued to cause problems where discharge licences were given and there were significant issues with ongoing maintenance of wastewater facilities.

Dr. Ryan made a point about water quality having decreased by 3%. That would not all be related to septic tanks. There are other factors at play, including agriculture and, in my constituency, former mining activity has had an effect on water quality. When Dr. Ryan says that water quality has diminished by 3%, it is not just because of one-off rural housing. There are other significant factors at play, including the public supply or public discharge.

I have a few points for Mr. Gilhooly. He says that when considering a replacement house, there is a provision in the existing code of practice amounting to a relaxation of standards where an existing wastewater treatment system exists. If someone has a house and is replacing it, even though the replacement house can increase the population, the same standards do not apply to that development. I am not sure about the breakdown of village sizes in Leitrim. How many villages in Leitrim are on a public mains supply for water and sewerage? What level of investment is Irish Water making into small rural villages in Leitrim to improve the capacity of our villages to cater for rural housing? This is a problem nationally. Irish Water is not investing in any infrastructure for our rural villages in any form unless they are polluting and Irish Water has no choice but to intervene.

Mr. Feargal Ó Coigligh

The Vice Chairman mentioned the one-off housing issue. I am representing the water division here but I can say that the Department's policy has always facilitated one-off housing. There are significant differences in Wicklow, with pressure from the Dublin metropolitan area, compared to an area such as Leitrim. The planning policy has always recognised that and been supportive of housing in areas where there is depopulation. The Vice Chairman mentioned urban wastewater treatment. He is correct that there is sometimes a tendency to say not to blame us because there is another problem elsewhere. We have no option but to tackle all the issues, whether it is urban wastewater treatment, the wider agricultural sector, forestry or individual septic tanks. The EPA's reports will point to all those pressures and we have no choice but to address them. We were found guilty in the European Court of Justice in March, two months ago, for failures relating to urban wastewater treatment. Mr. Flynn and I met the Commission about that case on Tuesday this week. It specifically raised the Arklow wastewater treatment plant because it has been such a saga. We cannot avoid any of these issues. Did Mr. Flynn wish to make any other point?

Mr. David Flynn

No, I think that is all.

Deputy Eoin Ó Broin

Do the witnesses think that the Commission left happier or less happy than when it went in?

Mr. Feargal Ó Coigligh

Under the national development plan, Irish Water has a strong programme of investment and a timetable for all the schemes that were cited in the court judgment.

Deputy Eoin Ó Broin

Was the Commission satisfied when Mr. Ó Coigligh told it that?

Mr. Feargal Ó Coigligh

It will want regular reporting to make sure that we keep to our word. It will keep us under tight scrutiny. If we do not deliver the programme as promised, then it has the option to go back to the court for fines.

Dr. Tom Ryan

I certainly did not want to give the impression that single dwellings and their septic tanks are the sole pressure on our water quality. Water quality is a complex area and many pressures bear on quality. I thought it was important to set out the overall context. There is a decline there. Septic tanks are part of the pressure. We have a river basin management plan which states that domestic wastewater, including septic tank systems associated with one-off housing and unlicensed private urban wastewater treatment plants for small conurbations, is a substantial pressure on approximately 11% of water bodies which are identified as being at risk in the management plan. It is not an insignificant pressure and we have to manage it.

Mr. Joseph Gilhooly

On replacement houses, the code of practice rightly makes a provision to allow for upgrading or improvement of existing sites. If somebody is developing on an existing site that has the benefit of an existing wastewater treatment system, it can be expected that the best available technology will be used to protect human health and the environment as part of that upgrade. One has to bear in mind that people in an existing property, or inheriting or buying a property with an existing wastewater treatment system, have an approved, authorised development that they can occupy. They may become part of the national inspection plan, as was alluded to earlier. That can arise depending on the risk analysis and what inspections are carried out annually in any local authority area. That works on the basis that the property already has an authorised use and people can reoccupy it and operate the system there. It is preferable to see the system improved and a higher standard system installed as part of a development, which would be required. It gives a derogation such that one does not have to establish that one can achieve the "T > 90" if one is moving into a site with an existing system. The priority is to improve the system with the best available technology and standards that one can achieve.

With regard to towns and villages, Leitrim is relatively fortunate in that most of the reasonably-sized settlements have public sewerage and wastewater treatment systems. I do not have the exact figure but the county has approximately 27 towns and villages and I imagine that 20, if not more, of those are served by a public wastewater treatment system.

Irish Water's priority for current investment in Leitrim is as I assume it is in many areas, as mentioned in relation to areas at risk and under pressure as identified by the river basin management places, to improve and deal with deficiencies in the existing systems. There is investment in that regard in Leitrim for water and wastewater but it is not to extend capacity of any existing system in County Leitrim.

Vice Chairman

On the technical point about the willows, from what I can gather, rainwater or surface water cause the major problem in achieving the necessary levels. How deep is the dense soil? Is there 2 ft. or 3 ft. foot of it, or as much as 10 ft.?

Vice Chairman

Can we excavate the soil or is it too deep? Is there is no way of getting the surface water out?

Dr. Tom Ryan

Part of the code is to do a site characterisation. Every site must be looked at on its merits.

Deputy Martin Kenny

In general there is shallow topsoil and then we come to daub, which is almost like the plasticine we had in school long ago. In some places, one can go through 8 or 10 ft of daub before coming to a gravelly subsoil. In other places, there is less of it. It creates a very difficult environment in which to work. This has an impact not just for one-off housing but a range of issues. E. coli was mentioned. The point has often been made to me by people in the planning department that they look at a two acre site and find there is nowhere on it to build a house but then the person will drive past it two months later and see that a farmer has spread several tanks of slurry on the same piece of land, which obviously has impermeable soil. The question arises as to what is going on. I imagine this issue will have an impact on E. coli and the agricultural sector. We have a vast amount of forestry in Leitrim and there is the run-off from all of this. What are the three main causes of pollution? I imagine one-off rural housing is not in the top three in Leitrim.

Vice Chairman

I thank all of the witnesses for attending and engaging with the committee.

Sitting suspended at 11.52 a.m. and resumed at 11.58 a.m.