Reform of Water Abstraction Legislation
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Ireland is obliged under the EU’s Water Framework Directive[1] to introduce a control and registration system for the abstraction of water. Ireland’s previous legislation was lacking a comprehensive control regime in this area. The recently commenced Water Environment (Abstraction and Associated Impoundment) Act 2022 (the Act) and associated Regulations aim to introduce a regime for the control of the abstraction of water on a risk-based approach.
Meaning of water abstraction
The Act aims to regulate the ‘abstraction’ of water from the environment. The term ‘abstraction’ means “the removal or diversion of water from the water environment”. The regulation of water abstraction also applies to any associated ‘impoundment’ of water. This means the doing of anything whereby the water level, or flow in surface waters, or the continuity of the morphological condition of a body of surface water, is permanently or temporarily changed by means of a structure such as a dam or weir.
Registration requirements
The Act repeals several different pieces of legislation. This includes the European Union (Water Policy) (Abstractions Registration) Regulations 2018[2] (the 2018 Regulations). The 2018 Regulations governed the registration of all water abstractions of 25 cubic metres and above per day. This is defined as the “registration threshold” under the Act. The Act replicates the requirements under the 2018 Regulations, ie in that registration is required for abstraction above the registration threshold. That is unless a rate has been prescribed by the Minister for the Environment.
These abstractions must now be registered with the Environmental Protection Agency (EPA). A person who carries out an abstraction that exceeds the “registration threshold” must give notice of that abstraction in a prescribed form to the EPA, within one month of the commencement of the abstraction.
New licensing requirements
Under the Act, an EPA licence must now be held for the following types of water abstractions:
- An abstraction that meets or exceeds the “licensing threshold” - An abstraction that is below the licensing threshold but which the EPA has notified the person carrying out the abstraction that the EPA considers a licence is required in order to facilitate the proper regulation of the abstraction
- A ‘significant abstraction’. This means an abstraction that meets or exceeds the “registration threshold”, is below the licensing threshold, and the EPA determines is a significant abstraction, and
- A registered abstraction that the EPA determines should be subject to a retrospective environmental impact assessment (EIA). The abstraction must be on the current register, be a sub-threshold development, not otherwise require a licence, and the EPA has determined that an EIA is required.
Anyone who continues to operate an abstraction after 28 August 2024 must apply to the EPA for a licence within six months, ie by 28 February 2025. An extension for submitting the application may be granted by the EPA. These abstractions may continue to operate until such a time as the licence application has been determined. New abstractions requiring a licence cannot be commenced until a licence has been obtained.
Licensing processes
The Act outlines specific requirements for various aspects of water extraction. These aspects include:
- The licence application, including the need for any EIA
- Proposed revisions to existing abstractions, and
- Surrendering and transferring licences.
Regulations for unlicenced abstractions
Water abstractions that do not require a licence, are not required to be registered or are awaiting a determination of a licence application are still required to comply with Part 2 of the Water Environment (Abstractions and Associated Impoundments) Regulations 2024. Some of the obligations include that operators of unlicensed abstractions are required by the Regulations to measure or, where appropriate, estimate the daily rate of the abstraction. Records of the results of all measurements or estimations must be maintained for inspection for at least three calendar years.
An abstraction is prohibited if:
1. It reduces flow levels:
- In a way that creates a barrier to the passage of fish, or
2. It interferes with sediment transport:
- Within a body of surface water, causing:
- Deterioration in the status of the water body, or
- Non-compliance with standards or objectives for a protected area.
Exemptions
The Minister may prescribe certain abstractions or related activities to be exempt from regulations for unlicensed abstraction or registration requirements. The exemption can only be granted if the Minister is satisfied that it will not have a significant impact on the status of surface water or groundwater.
Enforcement
The Act provides enforcement powers to the EPA, including investigative powers and the issuing of compliance notices. Breaches can be subject to fines. Depending on the type of breach, it can be up to a maximum fine of €15,000,000 or imprisonment for a term not exceeding 10 years, or both. In addition, a director, manager, secretary or other officer of the company can be liable in certain circumstances.
Conclusion
Developers and operators of water abstractions should familiarise themselves with the requirements of the Act and associated Regulations. The new licensing requirements apply to all abstractions over the “licensing threshold”. The new licensing requirements may also apply to other abstractions that fall below the “licensing threshold” but are still deemed by the EPA to require a licence.
The new licensing requirements may also apply to abstractions which are considered “significant” or where a retrospective EIA is required. The legislation also introduces requirements for carrying out an EIA or retrospective EIA that must be adhered to.
An abstraction that does not require a licence must still be registered if it exceeds the “registration threshold”. Even if registered, it may still be prohibited if it causes deterioration of the water body or jeopardises compliance with certain environmental objectives.
For more information, please contact a member of our Planning & Environment team.
People also ask
What is the Water Environment (Abstractions and Associated Impoundment) Act 2022? |
The Water Environment (Abstraction and Associated Impoundment) Act 2022 reforms Irish legislation for water abstractions. It repeals and replaces the Water Supplies Act 1942 in order to bring Ireland into line with the EU Water Framework Directive. It sets new EPA licensing requirements for water abstractions, amongst other things. |
When does the Water Environment (Abstractions and Associated Impoundment) come into effect? |
The Water Environment (Abstraction and Associated Impoundment) Act 2022 came into force on 28 August 2024. |
Are there any Regulations associated with the Water Environment (Abstraction and Associated Impoundment) Act 2022? |
Yes. The Act is currently supplemented by S.I. No. 419 of 2024 – Water Environment (Abstraction and Associated Impoundment) Regulations 2024 and S.I. 418 of 2024 - Environment (Abstraction and Associated Impoundment) (Licensing Fees) Regulations 2024 |
The content of this article is provided for information purposes only and does not constitute legal or other advice.
[1] Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (as amended)
[2] SI No 261 of 2018
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