LegalizeWater Environment (Abstractions and Associated Impoundments) Act 2022
PART 1 Preliminary and general
1. Citation and commencement
1. (1) This Act may be cited as the Water Environment (Abstractions and Associated Impoundments) Act 2022.
(2) This Act shall come into operation on such day or days as the Minister may by order or orders appoint either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.
2. Interpretation
2. (1) In this Act—
“abstraction” has the meaning given to it by section 3(1);
“abstraction point” means the point at which an abstraction takes place and includes any borehole, well, sump or inlet pipe;
“Act of 1942” means the Water Supplies Act 1942;
“Act of 1990” means the Shannon Navigation Act 1990;
“Act of 1992” means the Environmental Protection Agency Act 1992;
“Act of 2000” means the Planning and Development Act 2000;
F1[“Act of 2024”means thePlanning and Development Act 2024;]
“Agency” means the Environmental Protection Agency;
“applicant” means a person who applies for a licence in accordance with section 21, 29 or 37;
“associated impoundment” has the meaning given to it by section 3(5);
“Birds Directive” means Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009^4 on the conservation of wild birds, amended by Council Directive 2013/17/EU of 13 May 2013^5 and Regulation (EU) 2019/1010 of the European Parliament and of the Council of 5 June 2019^6;
“Board” means An Bord Pleanála;
“body of groundwater” means a distinct volume of groundwater within an aquifer or aquifers;
“body of surface water” means a discrete and significant element of surface water such as a lake, a reservoir, a stream, river or canal, or part of a stream, river or canal;
“canal” means the Royal Canal, the Grand Canal, the Grand Canal Barrow line, and the canalised section of the Shannon Erne Waterway;
“cease carrying out an abstraction” means, in relation to an abstraction, discontinuing the abstraction permanently;
“compliance notice” means a compliance notice given by a local authority under section 97 or given by the Agency under section 98;
“daily rate”, in relation to an abstraction, means the volume of water abstracted in any 24 hour period;
“development” has the same meaning as it has in the Act of 2000;
“District Court” means the District Court in the district court district in which the abstraction takes place;
“ecological status” is an expression of the quality of the structure and functioning of aquatic ecosystems associated with surface waters when so classified by the Agency in accordance with the Regulations of 2009;
“EIA Directive” means Directive No. 2011/92/EU of the European Parliament and of the Council of 13 December 2011^7 on the assessment of the effects of certain public and private projects on the environment, amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014^8;
“enactment” means—
(a) an Act of the Oireachtas,
(b) a statute that was in force in Saorstát Éireann immediately before the date of coming into operation of the Constitution and that continues in force by virtue of Article 50 of the Constitution, or
(c) an instrument made under an Act of the Oireachtas or a statute referred to in paragraph (b);
“environmental objectives” means—
(a) in relation to a body of surface water, the objectives established by Article 28 of the Regulations of 2009, subject to the application of Articles 29 to 34 of those Regulations,
(b) in relation to a body of groundwater, the objectives established by Regulation 4(b) of the Regulations of 2010, subject to the application of Regulations 16 to 20 of those Regulations, or
(c) in relation to a protected area, the standards and objectives established by the Birds Directive, the Habitats Directive or the Regulations of 2011, as the case may be, under which the protected area has been designated;
“ESB” means the Electricity Supply Board;
“European Site” has the same meaning as it has in the Regulations of 2011;
“groundwater” means all water which is below the surface of the ground in the saturation zone and in direct contact with the ground or subsoil;
“groundwater status” means the status of a body of groundwater that is determined by the poorer of its quantitative status and its chemical status as classified by the Agency in accordance with the Regulations of 2010;
“Habitats Directive” means Council Directive 92/43/EEC of 21 May 1992^9 on the conservation of natural habitats and of wild fauna and flora amended by Council Directive 97/62/EC of 27 October 1997^10, Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29 September 2003^11, Council Directive 2006/105/EC of 20 November 2006^12 and Council Directive 2013/17/EU of 13 May 2013^13;
“hydrological regime” means—
(a) in relation to a river, the quantity and dynamics of flow in the river together with the resultant connection to groundwater,
(b) in relation to a lake, the quantity and dynamics of flow, lake water level and the estimated time for replacement of all of its water and the resultant connection to groundwater, and
(c) in relation to a body of groundwater, the level of groundwater, including any alterations to its flow direction brought about by anthropogenic changes to the water level of the body of groundwater, together with the resultant connection to surface water and terrestrial ecosystems which depend directly on the body of groundwater;
“impoundment” has the meaning given to it by section 3(10);
“joint licence” has the meaning given to it by section 47(1);
“local authority” has the same meaning as it has in the Local Government Act 2001;
“licence” means a licence granted under section 27, 35 or 44;
“licensee” means the holder or holders of a licence;
“licensing threshold” means—
(a) the daily rate prescribed under section 16(1)(b), or
(b) if no rate is prescribed under that section, 2,000 cubic metres or more in any 24 hour period;
“Minister” means the Minister for Housing, Local Government and Heritage;
“morphological condition” means—
(a) in relation to a river, its channel patterns, width and depth variation and flow velocities as well as the condition of its substrate and the structure and condition of its riparian zones, and
(b) in relation to a lake, its depth variation, the quantity and structure of its substrate and the structure and condition of the lake shore zone;
“navigable water” shall not include a canal and means—
(a) the Shannon navigation, within the meaning of the Act of 1990, and
(b) the Ballinamore and Ballyconnell navigation, within the meaning of section 5 of the Act of 1990,
(c) the Erne and Lough Oughter navigation, within the meaning of section 5 of the Act of 1990, and
(d) the Barrow navigation;
“planning authority” has the same meaning as it has in the Act of 2000;
“prescribe” means prescribe by regulations made by the Minister under this Act or by order made by the Minister under section 16 or section 80;
“protected area” means an area designated as requiring special protection under the Birds Directive, the Habitats Directive or the Regulations of 2011 for the protection of its surface water and groundwater or for the conservation of habitats and species of European sites directly dependent on water, and entered in the register established by the Agency in accordance with Article 8 of the Regulations of 2003;
“public abstraction” means an abstraction or increase of an abstraction by Irish Water for the purpose of the performance by Irish Water of any of its functions under any enactment;
“public authority” means a body specified in the Schedule;
“quantitative status” is an expression of the degree to which a body of groundwater is affected by direct or indirect abstraction as determined by the Agency in accordance with the test procedures specified in Schedule 3 to the Regulations of 2010;
“register” means the register of abstractions established under section 10;
“registration threshold” means—
(a) the daily rate prescribed under section 16(1)(a), or
(b) if no rate is prescribed under that section, 25 cubic metres or more in any 24 hour period;
“Regulations of 2001” means the Planning and Development Regulations 2001 (S.I. No. 600 of 2001);
“Regulations of 2003” means the European Communities (Water Policy) Regulations 2003 (S.I. No. 722 of 2003);
“Regulations of 2009” means the European Communities Environmental Objectives (Surface Waters) Regulations 2009 (S.I. No. 272 of 2009);
“Regulations of 2010” means the European Communities Environmental Objectives (Groundwater) Regulations 2010 (S.I. No. 9 of 2010);
“Regulations of 2011” means the European Communities (Birds and Natural Habitats) Regulations 2011 (S.I. No. 477 of 2011);
“Regulations of 2018” means the European Union (Water Policy) (Abstractions Registration) Regulations 2018 (S.I. No. 261 of 2018);
“River Basin Management Plan” means a plan made under Regulation 13 of the Regulations of 2003;
“river continuity” means the level of anthropogenic disturbance to a water body of a river affecting the undisturbed migration of aquatic organisms and the transport of sediment along that water body;
“significant abstraction” shall be construed in accordance with section 18(1);
“single abstraction” shall be construed in accordance with section 3(3);
“surface water” means all standing or flowing fresh water on the surface of the land;
“surface water status” means the status of a body of surface water that is determined by the poorer of its ecological status and its chemical status as classified by the Agency in accordance with the Regulations of 2009;
“transboundary state” means any state, other than Ireland, which is a party to the United Nations Economic Commission for Europe Convention on Environmental Impact Assessment in a Transboundary Context, done at Espoo (Finland) on 25 February 1991;
“water body” means a body of surface water or a body of groundwater;
“water environment” means any, or any part of any, water body;
“Water Framework Directive” means Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000^14 establishing a framework for Community action in the field of water policy;
“works” includes any act or operation of construction, excavation, demolition, extension, alteration, repair or renewal.
(2) A word or expression that is used in this Act and is also used in the EIA Directive or the Water Framework Directive has, unless the context otherwise requires, the same meaning in this Act as it has in the Directive concerned.
3. Application of Act and supplemental provisions relating to abstractions and associated impoundments
3. (1) This Act shall apply to the removal or diversion of water from the water environment (in this Act referred to as an “abstraction”).
(2) An abstraction may be carried out by mechanical means, through a pipe, or by diverting the flow of water or by means of a structure or works for that purpose.
(3) Two or more abstractions from different abstraction points in the same water body which join to form one abstraction serving the same person shall be considered to be a single abstraction for the purposes of—
(a) the registration threshold, and
(b) the licensing threshold.
(4) An abstraction may be carried out for the purpose of transfer of water from one part of the water environment to another.
(5) This Act shall apply to an impoundment where an abstraction cannot be carried out without an impoundment (in this Act referred to as an “associated impoundment”).
(6) In this Act, unless the context otherwise requires, a reference to an abstraction which cannot be carried out without an impoundment shall include a reference to its associated impoundment.
(7) A reference in this Act to a licence includes a reference to a joint licence.
(8) Where a joint licence is granted, a reference in this Act to a licensee includes a reference to the persons carrying out the abstraction and operating the associated impoundment the subject of that licence.
(9) This Act shall apply to a licence amended under section 51 or 52 as it applies to a licence and a reference in this Act to a licence includes a reference to a licence so amended.
(10) In this section, “impoundment” 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, including a dam or weir, situated in the water and built or maintained for the purpose of an abstraction or works situated in the water and carried out for that purpose.
4. Regulations and orders
4. (1) The Minister may by regulations provide for any matter referred to in this Act as prescribed or to be prescribed and different regulations may be made in respect of different classes of persons or matters the subject of the prescribing concerned and for different circumstances or classes of circumstances in relation to such different matters or different classes of matters.
(2) Regulations under this Act or an order under section 16 or 80 may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations or order.
(3) Every regulation made by the Minister under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House sits after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.
(4) An order under section 16 shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving the draft has been passed by each such House.
5. Expenses of Minister
5. The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of monies provided by the Oireachtas.
6. Giving of notices
6. (1) Subject to subsections (2) and (4), a notice that is required to be given to a person under this Act shall be in writing and addressed to the person concerned by name, and may be so given to the person in one or more than one of the following ways:
(a) by delivering it to the person;
(b) by leaving it at the address at which the person carries on business or ordinarily resides or, in a case in which an address for service has been furnished, at that address;
(c) by sending it by post in a prepaid registered letter to the address at which the person carries on business or ordinarily resides or, in a case in which an address for service has been furnished, to that address;
(d) where the address at which the person ordinarily resides cannot be ascertained by reasonable inquiry and the notice relates to land, by delivering it to a person over the age of 16 years resident or employed at the land, or by affixing it in a conspicuous position at or near the land;
(e) by electronic means to the e-mail address of the person, in a case in which the person giving the notice concerned reasonably believes that the e-mail address is being used by the first mentioned person.
(2) Where a notice under this Act is to be given to a person who is the owner or occupier of land and the name of the person cannot be ascertained by reasonable inquiry, it may be addressed to the person by using the words “the owner” or, as the case may require, “the occupier”.
(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.
(4) For the purpose of this section, a company formed and registered under the Companies Act 2014 or an existing company within the meaning of that Act shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body of persons shall be deemed to be ordinarily resident at its principal office or place of business.
7. Repeals and revocations
7. (1) Each of the following is repealed:
(a) the Act of 1942;
(b) section 4 of the Local Government (Sanitary Services) Act 1964;
(c) subsections (2) and (8) of section 9 of the Local Government (Water Pollution) Act 1977.
(2) The Regulations of 2018 are revoked.
PART 2 Regulations for certain abstractions
8. Regulations for certain abstractions
8. (1) The Minister, as soon as practicable after the coming into operation of this section, and following consultation with the Agency, shall make regulations for the purpose of regulating—
(a) an abstraction in respect of which a licence is not required under this Act, and
(b) an abstraction that was being carried out immediately before the coming into operation of section 15 in respect of which a licence is required under this Act, until such time as the Agency makes a decision to grant the licence.
(2) Without prejudice to the generality of subsection (1), regulations under this section may prescribe all or any of the following:
(a) requirements in relation to measuring or estimating the daily rate and the maintenance of records relating to the daily rate;
(b) limits on the rate of water that may be abstracted from a body of surface water having regard to the surface water status;
(c) measures to provide for the migration of fish and other aquatic species, including the maintenance of natural flow patterns and sediment transport within a body of surface water;
(d) controls relating to the abstraction of groundwater to protect the quantitative status of a body of groundwater including, in particular, terrestrial ecosystems associated with and dependent on that body of groundwater;
(e) requirements in relation to the maintenance of pipework, storage tanks and other equipment associated with an abstraction for the purposes of controlling water leakage;
(f) requirements in relation to the construction, extension and operation of any well, borehole or other works through which water may be abstracted in order to avoid the entry of pollutants or water of a different chemical composition into the water environment;
(g) requirements in relation to the introduction of drilling fluids into a well or borehole in order to test the hydraulic properties of an aquifer;
(h) requirements in relation to a well or borehole which is no longer required for an abstraction, including backfilling or sealing to the extent necessary to prevent loss of groundwater from an aquifer and to avoid the entry of pollutants or water of a different chemical composition into the water environment.
(3) Regulations under this section may—
(a) prescribe different requirements, limits, measures or controls by reference to different environmental objectives and different classes of abstraction, and
(b) prescribe periods within which persons or different classes of person carrying out an abstraction are required to comply with different requirements, limits, measures or controls.
(4) A person who contravenes a provision of regulations made under this section that is declared in the regulations to be a penal provision shall be guilty of an offence.
(5) The Minister shall, from time to time for the purpose of achieving the environmental objectives, conduct a review of the operation of regulations made under this section.
(6) In conducting a review under subsection (5), the Minister shall consult as appropriate with the Agency.
PART 3 Exemptions
9. Exemption for certain abstractions
9. (1) The Minister may by regulations prescribe certain abstractions or activities relating to abstractions to be exempt from regulations under section 8 or the requirements of section 11 where he or she is satisfied that prescribing the abstraction or activity to be so exempt has or will have no significant impact on surface water status or groundwater status.
(2) Before prescribing under subsection (1), the Minister shall consult with and consider any recommendations of the Agency and the Minister shall have regard to—
(a) the environmental objectives for the water body concerned,
(b) the obligation to protect species and habitats under the Habitats Directive and Birds Directive, and
(c) the requirements of the EIA Directive.
(3) Without prejudice to the generality of subsection (1), the following abstractions or activities relating to abstractions may be prescribed:
(a) an abstraction from a borehole or well to provide drinking water to a domestic dwelling;
(b) a temporary abstraction to facilitate the carrying out of works;
(c) an abstraction stored in an impoundment or an artificial storage pond built for the purpose of storing water which receives its inflow from an abstraction entered in the register;
(d) an abstraction for testing or investigative reasons;
(e) a temporary abstraction to facilitate any works or operations authorised by or under an enactment;
(f) an abstraction that is required for fire-fighting;
(g) works relating to an associated impoundment of an exempted abstraction;
(h) such other abstraction or activity relating to an abstraction as the Minister may prescribe.
(4) Regulations under this section may provide for all or any of the following matters:
(a) the nature, scale and duration of the abstraction or activity relating to an abstraction;
(b) the application of the exemption to all or part of the State;
(c) the volume of water that may be abstracted in any 24 hour or other period;
(d) any other requirement or condition which the Minister considers necessary.
(5) A person who contravenes a provision of regulations made under this section declared in the regulations to be a penal provision shall be guilty of an offence.
PART 4 Register of abstractions
10. Requirement for Agency to keep register
10. (1) The Agency shall, as soon as practicable after the coming into operation of this section, establish and maintain a register.
(2) The register shall comprise of parts consisting of such particulars, provided to the Agency under and in accordance with this Act, as it considers appropriate to enter in the register relating to—
(a) every abstraction which meets or exceeds the registration threshold, other than an abstraction which requires a licence,
(b) every abstraction for which a licence is granted and in force, and
(c) every public abstraction to which Chapter 2 of Part 6 applies.
(3) The register shall be maintained in such form, including electronic form, as the Agency may determine.
(4) The Agency shall, in relation to an entry in the register—
(a) correct a clerical inaccuracy or error that it becomes aware of,
(b) record a change in circumstances that is likely to have a bearing on the accuracy of the entry,
(c) record a surrender of a licence under section 49 including as appropriate any conditions to which the surrender is subject,
(d) record a transfer of a licence under section 50 including the name of the person to whom the licence is transferred, and any other matter relating to the transfer as it considers appropriate,
(e) record a change in conditions attached to a licence following a review under section 51 or 52,
(f) record a revocation or suspension of a licence under section 53,
(g) record a termination of a suspension under section 54, and
(h) record an amendment of a licence of a clerical or technical nature under section 59.
(5) The register shall be kept at the principal office of the Agency.
(6) The Agency shall make the register available for inspection by any person free of charge during office hours, and provide a copy of an entry in the register, or an extract from an entry, to any person on request free of charge.
(7) The Agency may publish any of the information contained in the register as it considers appropriate on the internet or in such other manner as it considers appropriate.
11. Submission of information to Agency
11. (1) A person who carries out an abstraction referred to in section 10(2)(a) shall give notice of that abstraction to the Agency, in such manner and form as the Agency may specify, within one month of the commencement of the abstraction, for entry by the Agency in the register.
(2) Information submitted to the Agency under subsection (1) shall, in the case of a single abstraction, be submitted in respect of each abstraction point.
(3) Where an abstraction which meets or exceeds the registration threshold and its associated impoundment are carried out and operated by different persons, information submitted to the Agency under subsection (1) shall be submitted—
(a) by the person carrying out the abstraction, on the persons own behalf and on behalf of the person operating the associated impoundment, or
(b) jointly by both of those persons,
and in both cases each person shall be responsible jointly and severally for the accuracy of the information so submitted.
(4) A notice under subsection (1) shall—
(a) state the name, address and contact details of the person or persons carrying out the abstraction,
(b) state the postal address and location, including the grid coordinates, of the abstraction point,
(c) state the name, address and contact details, if applicable, of a person registering the abstraction on behalf of the person referred to in paragraph (a),
(d) contain details in relation to the source and purpose of the abstraction,
(e) include copies of any planning permission, other authorisations or court orders relating to the abstraction,
(f) specify the maximum daily rate, and
(g) include such other information as the Agency may require, including the proposed duration of the abstraction and details of any associated impoundment.
(5) The Agency shall, as soon as is practicable after the particulars of an abstraction have been entered in the register, issue a registration number to the person carrying out the abstraction.
(6) An abstraction referred to in section 10(2)(a) may be transferred by the person who carries out the abstraction to any person provided the first mentioned person—
(a) gives notice to the Agency of the transfer within one month after the date of that transfer,
(b) provides such particulars in relation to the transfer as the Agency may require, and
(c) provides information relating to the abstraction, including the registration number, to the person to whom the abstraction is to be transferred.
(7) Where an abstraction is transferred under subsection (6), the person to whom that abstraction is transferred shall within one month after the date of the transfer give notice to the Agency of any change to the information specified in subsection (4) and the Agency shall amend the register as it considers necessary.
(8) Where a person ceases carrying out an abstraction referred to in section 10(2)(a), he or she shall give notice to the Agency of the cessation within one month after the date of that cessation and the Agency shall amend the register as it considers necessary.
(9) The entry of an abstraction in the register shall not be construed as authorising that abstraction.
(10) A person who fails to comply with subsection (1), (6), (7) or (8) shall be guilty of an offence.
12. Provision of information to Agency
12. (1) The Agency may request a person carrying out an abstraction to submit such information as the Agency reasonably considers necessary for the purposes of the register within the period and in the manner specified by the Agency.
(2) A person carrying out an abstraction referred to in section 10(2)(a) shall give notice to the Agency of any material change to the particulars specified in section 11(4).
(3) A person carrying out an abstraction referred to in section 10(2)(b) shall give notice to the Agency of any material change to the particulars furnished to the Agency on foot of an application under Part 5 within one month after becoming aware of the change and the Agency shall amend the register as it considers necessary.
(4) A person who fails to comply with a request under subsection (1) shall be guilty of an offence.
(5) A person who contravenes subsection (2) or (3) shall be guilty of an offence.
13. Evidential value of entries in register
13. (1) Every document purporting to be a copy of an entry in the register and purporting to be certified by an officer of the Agency to be a true copy of the entry shall, without proof of the signature of the person purporting so to certify or that he or she was that officer, be received in evidence in any legal proceedings and shall, unless the contrary is proved, be deemed to be a true copy of the entry and to be evidence of the terms of the entry.
(2) Evidence of an entry in the register may be given by production of a copy of it certified under this section and it shall not be necessary to produce the register itself.
(3) If the register is kept otherwise than in legible form, references in this section to a copy of an entry in the register shall be construed as including references to a legible copy or reproduction of an entry in the register.
PART 5 Licensing of abstractions
Chapter 1
14. Interpretation (Part 5)
14. (1) In this Part—
“combined application for a licence” has the meaning given to it by section 37(1);
F3["coordinated area plan" has the same meaning as it has in the Act of 2024;]
“development plan” has the same meaning as it has in the F4[Act of 2024];
“EIA portal” has the same meaning as it has in the Act of 2000;
“EIAR” means an environmental impact assessment report of the effects on the environment, if any, which can reasonably be expected to occur because of the proposed abstraction and prepared in accordance with section 23(2) and regulations made under section 57;
“EIA” means an environmental impact assessment—
(a) consisting of—
(i) the preparation of an EIAR by the applicant,
(ii) the carrying out of consultations in accordance with this Act and regulations made under section 57,
(iii) the examination by the Agency of—
(I) the information presented in the EIAR,
(II) any supplementary information provided, where necessary, by the applicant in accordance with section 23(6) or section 26(1), and
(III) any relevant information received through the consultations carried out pursuant to subparagraph (ii),
(iv) the reasoned conclusion of the Agency on the significant effects of the proposed abstraction on the environment, taking into account the results of the examination carried out pursuant to subparagraph (iii) and, where appropriate, its own supplementary examination, and
(v) the integration of the reasoned conclusion of the Agency into the Agency’s decision on the licence application,
and
(b) which includes an examination, analysis and evaluation, carried out by the Agency in accordance with this Act and regulations made under section 57, that identifies, describes and assesses, in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of the proposed abstraction, including significant effects derived from the vulnerability of the abstraction to risks of major accidents and disasters relevant to it on—
(i) population and human health,
(ii) biodiversity, with particular attention to species and habitats protected under the Habitats Directive and the Birds Directive,
(iii) land, soil, water, air and climate,
(iv) material assets, cultural heritage and the landscape, and
(v) the interaction between the factors mentioned in subparagraphs (i) to (iv);
“grant of permission” means—
(a) a grant of permission for development under Part III of the Act of 2000,
(b) an approval for development under section 175, 177AE, 181(2L), 181B, 182B, 182D or 226 of the Act of 2000, or
(c) a grant of substitute consent under section 177K of the Act of 2000;
“local area plan” F4[means a plan continued in force by section 81 of the Act of 2024];
F3["priority area plan" has the same meaning as it has in the Act of 2024;]
“retrospective EIA” means a retrospective environmental impact assessment—
(a) consisting of—
(i) the identification of the existence of exceptional circumstances within the meaning of section 30(3),
(ii) the preparation of a retrospective EIAR by the applicant,
(iii) the carrying out of consultations in accordance with this Act and regulations made under section 57,
(iv) the examination by the Agency of—
(I) the information presented in the retrospective EIAR,
(II) any supplementary information provided, where necessary, by the applicant in accordance with section 23(6), as modified by section 31(3), or section 40(2) as the case may be, section 26(1), as modified by section 34, section 30(2) or that section as modified by section 39(2) as the case may be, and section 43(1), and
(III) any relevant information received through the consultations carried out pursuant to subparagraph (iii),
(v) the reasoned conclusion of the Agency on the significant effects of the abstraction on the environment, taking into account the results of the examination carried out pursuant to subparagraph (iv) and, where appropriate, its own supplementary examination, and
(vi) the integration of the reasoned conclusion of the Agency into the Agency’s decision on the licence application,
and
(b) which includes an examination, analysis and evaluation, carried out by the Agency in accordance with this Act and regulations made under section 57, that identifies, describes and assesses, in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of the abstraction, including significant effects derived from the vulnerability of the abstraction to risks of major accidents and disasters relevant to it on—
(i) population and human health,
(ii) biodiversity, with particular attention to species and habitats protected under the Habitats Directive and the Birds Directive,
(iii) land, soil, water, air and climate,
(iv) material assets, cultural heritage and the landscape,
(v) the interaction between the factors mentioned in subparagraphs (i) to (iv);
“retrospective EIAR” means a retrospective environmental impact assessment report of the effects on the environment, if any, which have occurred, which are occurring or which can reasonably be expected to occur because of the abstraction and prepared in accordance with section 31(2) and regulations made under section 57;
“retrospective screening determination” has the meaning given to it by section 32(1);
“revised abstraction” has the meaning given to it by section 15(5);
“screening determination” has the meaning given to it by section 24(1);
F3["urban area plan" has the same meaning as it has in the Act of 2024.]
(2) For the purposes of Part 5, Schedules 6, 7 and 7A to the Regulations of 2001 shall apply to an abstraction as they apply to a development, subject to the following modifications—
(a) subject to paragraph (b), a reference in those Schedules to a development shall be read as a reference to an abstraction,
(b) a reference to development in paragraph 1(b) and paragraph 3(g) of Schedule 7 shall be read as including a reference to an abstraction, and
(c) any other necessary modifications.
15. Requirement for a licence to abstract
15. (1) A person shall require a licence under this Act to carry out—
(a) an abstraction that meets or exceeds the licensing threshold,
(b) an abstraction that requires a licence as determined by the Agency under section 17(10)(a)(i),
(c) a significant abstraction, or
(d) an abstraction that requires a licence as determined by the Agency under section 19.
(2) A person who—
(a) continues to carry out, after the coming into operation of this section, an abstraction specified in subsection (1)(a) that he or she was carrying out immediately before that coming into operation shall, subject to subsection (4), make an application for a licence under section 21 no later than 6 months after the coming into operation of this section, or
(b) intends to carry out, after the coming into operation of this section, an abstraction specified in subsection (1)(a), shall make an application for a licence under section 21 and he or she shall not commence that abstraction until the licence has been granted.
(3) Subject to subsection (4), where the Agency makes a determination that an abstraction is an abstraction specified in paragraph (b), (c) or (d) of subsection (1), the person who carries out that abstraction shall make an application for a licence under section 21 no later than 6 months after the date on which the Agency makes that determination.
(4) A person who was carrying out, immediately before the coming into operation of this section, and who continues to carry out, after the coming into operation of this section, an abstraction that is an abstraction—
(a) specified in paragraph (a), (b), (c) or (d) of subsection (1), and
(b) of a class specified in—
(i) paragraph (a) of section 29(3), or
(ii) Part 2 of Schedule 5 to the Regulations of 2001 but does not equal or exceed, as the case may be, the relevant quantity or area specified in that Part such that a determination as to whether an environmental impact assessment was required should have been made prior to, or after, the commencement of the abstraction,
shall, subject to subsection (5), make an application for a licence under section 29, in the case of an abstraction specified in paragraph (a) of subsection (1), no later than 6 months after the coming into operation of this section, or in the case of an abstraction specified in paragraph (b), (c) or (d) of subsection (1), no later than 6 months after the date on which the Agency makes the determination concerned.
(5) A person referred to in subsection (4) shall make an application for a licence under section 37 where he or she intends to increase or vary the abstraction referred to in subsection (4) (in this Part referred to as a “revised abstraction”), in the case of an abstraction specified in paragraph (a) of subsection (1), no later than 6 months after the coming into operation of this section, or, in the case of an abstraction specified in paragraph (b), (c) or (d) of subsection (1), no later than 6 months after the date on which the Agency makes the determination concerned.
(6) A person shall not commence a revised abstraction until a licence has been granted under section 44 for that abstraction.
(7) The Agency may, as it considers appropriate, on the written application of the person carrying out the abstraction, extend the period referred to in subsection (2)(a), (3), (4) or (5).
(8) A person who fails to comply with any of subsections (2) to (6) shall be guilty of an offence.
16. Registration and licensing thresholds
16. (1) The Minister may for the purposes of this Act, if he or she considers it necessary for the sustainable management of water resources, by order—
(a) specify or reduce the registration threshold, or
(b) specify or vary the licensing threshold.
(2) The Agency may, at any time it considers appropriate and shall, as soon as practicable following the publication of each River Basin Management Plan, prepare and provide a written report to the Minister which shall contain a recommendation whether or not an order should be made under paragraph (a) or (b) of subsection (1) and that report shall contain the reasons for the Agency’s recommendation.
(3) The Agency shall have regard to the matters listed in paragraph (a) to (d) of subsection (5) in the preparation of a report under subsection (2).
(4) Prior to making an order under subsection (1), the Minister shall consider a report of the Agency under subsection (2).
(5) In determining whether to make an order under subsection (1), the Minister shall have regard to—
(a) the impact of abstractions on groundwater status and surface water status,
(b) the need to protect the environment from abstractions,
(c) the expected environmental benefit of reducing the registration threshold or varying the licensing threshold, as the case may be,
(d) the River Basin Management Plan,
(e) any submissions received under subsection (6)(a)(i), and
(f) the economic and societal impact of varying the registration threshold or the licensing threshold.
(6) Where the Minister determines—
(a) that an order under subsection (1) should be made, he or she shall cause a notice to be published on the Department’s website of—
(i) the proposal to make an order and that submissions may be made in respect of that proposal, and
(ii) the main reasons for the determination,
or
(b) that an order under subsection (1) should not be made, he or she shall inform the Agency of the main reasons for the determination.
(7) Submissions under subsection (6)(a)(i) shall be made in such manner and within such period as the Minister may specify.
(8) Where an order under subsection (1)(a) reduces the registration threshold, that order may specify the period within which a person who carries out an abstraction that meets or exceeds the registration threshold as so reduced is required to comply with section 11(1).
(9) A person who carries out an abstraction that meets or exceeds the registration threshold as reduced by order under subsection (1)(a) and fails to comply with section 11(1) within the period specified in the order shall be guilty of an offence.
(10) Where an order under subsection (1)(b) reduces the licensing threshold, that order may specify the period within which a person who carries out an abstraction that meets or exceeds the licensing threshold as so reduced is required to apply for a licence under this Part.
(11) A person who carries out an abstraction that meets or exceeds the licensing threshold specified in an order under subsection (1)(b) and fails to apply for a licence under this Part within the period specified in the order shall be guilty of an offence.
17. Agency opinion that licence required
17. (1) The Agency shall give notice under subsection (10) to a person carrying out an abstraction that is less than the licensing threshold and that does not otherwise require a licence under paragraph (c) or (d) of section 15(1) where the Agency has formed an opinion under and in accordance with this section that the abstraction is required to be subject to a licence in order to facilitate the proper regulation of the abstraction.
(2) A public authority may give notice to the Agency of the opinion of the authority that an abstraction that is less than the licensing threshold and that does not otherwise require a licence under paragraph (c) or (d) of section 15(1) is required to be subject to a licence in order to facilitate the proper regulation of the abstraction.
(3) A notice under subsection (2) shall—
(a) state the main reasons for the opinion of the public authority,
(b) contain information concerning any impact or likely impact of the abstraction concerned on the performance of the functions of the public authority, and
(c) be accompanied by such documents and information as may be relevant to the opinion of the public authority.
(4) For the purpose of forming an opinion under subsection (1), the Agency may give notice to the person carrying out the abstraction requiring him or her to submit, within the period specified in the notice, such information relating to the abstraction as the Agency may reasonably require.
(5) In forming an opinion under subsection (1), the Agency shall have regard to—
(a) the sufficiency, for the purpose of the proper regulation of the abstraction, of regulations made under section 8,
(b) the reasons why a licence is not required under paragraph (c) or (d) of section 15(1),
(c) the information contained in any notice under subsection (2),
(d) information provided by the person carrying out the abstraction under subsection (4),
(e) the River Basin Management Plan, and
(f) any other matter the Agency considers relevant.
(6) The Agency may consult with such persons as the Agency considers appropriate prior to forming an opinion under subsection (1).
(7) The Agency shall give notice to the person carrying out the abstraction of its proposed opinion that the abstraction is required to be subject to a licence to facilitate its proper regulation and where a notice is given under subsection (2) in relation to the abstraction, a copy of that notice.
(8) The Agency shall, where a notice is given under subsection (2), consult the public authority concerned and the Agency shall give notice to the public authority of its proposed opinion under subsection (1).
(9) A notice under subsection (7) or (8) shall—
(a) state the main reasons for the proposed opinion of the Agency, and
(b) invite the person carrying out the abstraction or the public authority, if applicable, to make observations, in writing, in relation to the proposed opinion and any other matter relating to the abstraction not later than 6 weeks from the date of the notice.
(10) The Agency shall, having considered any observations made under subsection (9)(b), give notice to the person carrying out the abstraction and, where applicable, to the public authority concerned of—
(a) its opinion that—
(i) the abstraction requires a licence, or
(ii) the abstraction does not require a licence,
and
(b) the main reasons for that opinion.
(11) In the case of an opinion referred to in subsection (10)(a)(i), the notice shall require the person carrying out the abstraction to make an application for a licence under this Part.
18. Identification of significant abstractions
18. (1) A significant abstraction means an abstraction that the Agency determines, following an assessment under subsection (3), on its own or together with other abstractions—
(a) alters, or is likely to alter, the hydrological regime of a body of surface water or a body of groundwater such that the water body fails or is likely to fail to meet its environmental objectives,
(b) alters or modifies, or is likely to alter or modify, the flow condition, continuity or morphological condition of a body of surface water as a result of the existence or operation of an associated impoundment, such that the water body fails or is likely to fail to meet its environmental objectives, or
(c) causes or is likely to cause a protected area to fail to achieve its environmental objectives.
(2) A person shall give notice to the Agency where he or she intends to carry out an abstraction that meets or exceeds the registration threshold and is less than the licensing threshold (in this section referred to as a “proposed abstraction”).
(3) For the purpose of determining if an abstraction is a significant abstraction, the Agency shall assess each—
(a) proposed abstraction notified to it under subsection (2), and
(b) abstraction in the part of the register referred to in section 10(2)(a).
(4) In carrying out an assessment under subsection (3), the Agency shall have regard to—
(a) in the case of an abstraction from a body of surface water—
(i) the hydrological regime of the body of surface water and the impact of the abstraction on river continuity and the morphological condition of that water body, and
(ii) the impact or likely impact of the abstraction on the applicable biological quality elements set out in Schedule 5 to the Regulations of 2009,
(b) in the case of an abstraction from a body of groundwater—
(i) changes or likely changes to the level of the body of groundwater, taking account of the available groundwater resource and the long-term annual average rate of abstraction,
(ii) the balance between the abstraction and the recharge of water in the body of groundwater,
(iii) the impact or likely impact of the abstraction on the status of surface waters which are hydrologically connected to the body of groundwater,
(iv) the impact or likely impact of the abstraction on a terrestrial ecosystem which depends directly on the body of groundwater, and
(v) any sustained alteration to the flow direction of water which may cause salt water or other intrusion to the body of groundwater,
and
(c) in the case of all abstractions—
(i) the impact or likely impact of the abstraction on a protected area,
(ii) the results of monitoring programmes undertaken under Article 10 of the Regulations of 2003, and
(iii) the results of analyses and reviews undertaken under Article 7 of the Regulations of 2003.
(5) For the purposes of an assessment under subsection (3), the Agency may give notice to the person referred to in subsection (2) requiring him or her to submit, within the period specified in the notice, such information relating to the abstraction as the Agency may reasonably require, including information in relation to—
(a) the proposed period for which the abstraction is intended to operate,
(b) the maximum daily rate that is possible having regard to the existing or proposed infrastructure,
(c) seasonal and temporal variations in the rate of abstraction, and
(d) the operation of any associated impoundment and any related works.
(6) The Agency shall give notice to the person referred to in subsection (2) or to the person carrying out the abstraction where the Agency is of the opinion that the abstraction is likely to be a significant abstraction and the Agency shall invite the person to make observations in writing, in relation to that opinion, not later than 6 weeks from the date of the notice.
(7) The Agency shall, within 2 months of receipt of a notice under subsection (2) or the date of receipt of observations under subsection (6), whichever occurs later and having considered any observations made under subsection (6), determine whether a proposed abstraction is a significant abstraction and the Agency shall give notice accordingly to the person referred to in subsection (2).
(8) The Agency shall, as soon as practicable and having considered any observations made under subsection (6), determine whether an abstraction referred to in subsection (3)(b) is a significant abstraction and the Agency shall give notice accordingly to the person carrying out the abstraction.
(9) The Agency shall, not less than once in every period of 6 years, review its assessment of an abstraction under subsection (3) and subsections (4) and (6) shall apply to a review under this subsection as they apply to an assessment under subsection (3) subject to any necessary modifications.
(10) Where the Agency determines, following a review under subsection (9) and having considered any observations made under subsection (6), that the abstraction—
(a) is no longer a significant abstraction, the Agency shall give notice to the licensee that the licence is no longer required, or
(b) has become a significant abstraction, the Agency shall give notice to the person carrying out the abstraction of its determination.
(11) Where the Agency determines that an abstraction is a significant abstraction under subsection (7), (8) or (10)(b), a notice under those subsections shall—
(a) state the main reasons for the Agency’s determination, and
(b) require the person carrying out the abstraction or the person referred to in subsection (2), as the case may be, to make an application for a licence under this Part.
19. Assessment of certain abstractions
19. (1) For the purpose of determining if an abstraction should be subject to a retrospective EIA, the Agency shall assess an abstraction that—
(a) is deemed to be entered in the appropriate part of the register pursuant to section 113(2),
(b) is of a class specified in Part 2 of Schedule 5 to the Regulations of 2001 but does not equal or exceed, as the case may be, the relevant quantity or area specified in that Part, and
(c) is less than the licensing threshold and does not otherwise require a licence under paragraphs (b) or (c) of section 15(1).
(2) For the purpose of determining if an abstraction should be subject to an EIA, the Agency may assess an abstraction, other than an abstraction referred to in subsection (1)(a), that—
(a) is of a class specified in Part 2 of Schedule 5 to the Regulations of 2001 but does not equal or exceed, as the case may be, the relevant quantity or area specified in that Part, and
(b) is less than the licensing threshold and does not otherwise require a licence under paragraphs (b) or (c) of section 15(1).
(3) For the purposes of an assessment under subsection (1) or (2), the Agency may give notice to the person carrying out the abstraction requiring him or her to submit, within the period specified in the notice, such information relating to the abstraction and the environmental effects of that abstraction as the Agency may reasonably require, including information in relation to any permission or consent relating to the abstraction granted under any enactment.
(4) The Agency may enter into consultations with such public authorities as the Agency considers appropriate.
(5) In carrying out an assessment under subsection (1) or (2), the Agency shall have regard to—
(a) the information in the register in relation to the abstraction, if applicable,
(b) any information submitted under subsection (3), and
(c) such other information relating to the effects on the environment arising from the abstraction that is available to the Agency.
(6) The Agency shall, as soon as practicable after the coming into operation of this section, carry out an assessment under subsection (1) of an abstraction referred to in that subsection and where the Agency concludes that—
(a) there have been no significant effects on the environment arising from the abstraction and there is no real likelihood of such significant effects, the Agency shall determine that a retrospective EIA is not required,
(b) there is a significant and realistic doubt as to the likelihood of whether there have been or there may be significant effects on the environment arising from the abstraction, the Agency shall determine that a screening assessment is required, or
(c) there have been significant effects on the environment arising from the abstraction or there is a real likelihood of significant effects on the environment, the Agency shall determine that a retrospective EIA is required.
(7) If the Agency carries out an assessment under subsection (2) of an abstraction referred to in that subsection and concludes that—
(a) there have been no significant effects on the environment arising from the abstraction and there is no real likelihood of such significant effects, the Agency shall determine that an EIA is not required,
(b) there is a significant and realistic doubt as to the likelihood of whether there have been or there may be significant effects on the environment arising from the abstraction, the Agency shall determine that a screening assessment is required, or
(c) there have been significant effects on the environment arising from the abstraction or there is a real likelihood of significant effects on the environment, the Agency shall determine that an EIA is required.
(8) The Agency shall give notice to the person carrying out the abstraction of—
(a) its determination under subsection (6) or (7),
(b) the main reasons for the determination, and
(c) in the case of a determination under subsection (6)(c) or (7)(c), the requirement to make an application for a licence, accompanied by an EIAR or a retrospective EIAR under section 21, 29 or 37, as appropriate.
(9) Where the Agency makes a determination under subsection (6)(b) or (7)(b), the Agency shall give notice to the person carrying out the abstraction requiring him or her to submit, within the period specified in the notice, the information specified in section 24(2) and he or she may also submit a description of features or measures, if any, incorporated or envisaged to avoid or prevent what might otherwise be or have been significant adverse effects on the environment.
(10) The Agency shall assess whether the abstraction specified in subsection (9) has had or is likely to have significant effects on the environment (in this section referred to as a “screening assessment”).
(11) In carrying out a screening assessment, the Agency shall have regard to the information submitted under subsection (9) and to the matters specified in paragraphs (a), (c), (d) and (f) of section 24(4).
(12) Where the Agency, having carried out a screening assessment, concludes—
(a) that the abstraction has had or is likely to have significant effects on the environment, the Agency shall give notice to the person carrying out the abstraction of—
(i) the main reasons for that conclusion with reference to the relevant criteria specified in Schedule 7 to the Regulations of 2001, and
(ii) the requirement to make an application for a licence, accompanied by an EIAR or a retrospective EIAR, as appropriate, under section 21, 29 or 37,
or
(b) that the abstraction has not had and is not likely to have significant effects on the environment, the Agency shall give notice to the person carrying out the abstraction of—
(i) the main reasons for that conclusion with reference to the relevant criteria specified in Schedule 7 to the Regulations of 2001, and
(ii) any features or measures proposed by that person to avoid or prevent significant adverse effects on the environment.
(13) Subject to subsection (14), the Agency shall give notice under subsection (12) as soon as practicable and within 8 weeks after the date on which the person carrying out the abstraction has submitted all of the information required under subsection (9).
(14) The Agency may, in exceptional cases, including where it is justified by the nature, complexity, location or size of the abstraction, extend the 8 week period referred to in subsection (13) and in such cases, it shall give notice to the person carrying out the abstraction of the reasons justifying the extension and of the date when the notice can be expected.
(15) In this section, a reference to the person carrying out the abstraction shall be read as including a reference to a proposal by Irish Water to carry out a temporary abstraction, within the meaning of section 74.
20. Grant of licences
20. (1) The Agency may decide to grant or refuse to grant a licence under section 27, 35 or 44 on an application being made to it and—
(a) the Agency may attach such conditions to the licence as it considers appropriate, and
(b) the licence shall, subject to any conditions concerning its duration, remain in force for an indefinite period, subject to its surrender, suspension or revocation.
(2) In considering an application for a licence, the Agency shall have regard to—
(a) the environmental objectives for the water body concerned,
(b) the water resources plan prepared by Irish Water for the purposes of the water services strategic plan prepared under section 33 of the Water Services (No. 2) Act 2013,
(c) any directive issued by the Minister under section 110 concerning the grant of licences,
(d) the matters specified in section 18(4)(a), in the case of an abstraction from a body of surface water,
(e) the matters specified in section 18(4)(b), in the case of an abstraction from a body of groundwater,
(f) the matters specified in section 18(4)(c),
(g) in the case of an application relating to a public abstraction or an abstraction that may affect a public abstraction, the functions of Irish Water,
(h) in the case of an application relating to a public abstraction from a reservoir of the ESB, or an abstraction by the ESB, the functions of the ESB referred to in section 87(8), and
(i) in the case of an application relating to an abstraction from a canal or navigable water, the functions conferred on Waterways Ireland under the Canals Act 1986 and the Act of 1990.
(3) The Agency shall not grant a licence unless it is satisfied that the abstraction, carried out in accordance with such conditions as may be attached to the licence will not—
(a) cause a deterioration in the status of the body of surface water concerned or the body of groundwater concerned, and
(b) compromise compliance with any standards and objectives established for a protected area, where applicable.
(4) The Agency may decide to refuse to grant a licence where the Agency considers that the abstraction, notwithstanding any conditions that may be attached to the licence, is unacceptable on environmental grounds.
(5) The Agency shall attach conditions to a licence consistent with the environmental objectives of the water body concerned, including conditions that aim to protect or restore—
(a) the hydrological regime of that water body, and
(b) in the case of a body of surface water, the continuity or morphological condition of that water body.
(6) Conditions attached to a licence may—
(a) specify limits on—
(i) the daily rate, and
(ii) the rate of water which may be abstracted in any 12 month period,
(b) specify measures to be taken to protect the water body concerned from the effects of short-term high-intensity abstractions,
(c) specify periods during which a person may or may not carry out an abstraction,
(d) specify the means, including the provision, operation, maintenance and supervision of plant and other facilities, to be used for controlling an abstraction,
(e) require the provision, operation and maintenance of meters, gauges, manholes, inspection chambers or other means for the purpose of monitoring the nature, extent and effects of the abstraction,
(f) require the taking of and analysis of samples, the making of measurements, the keeping of records and the submission of information to the Agency, or to any other specified person,
(g) specify the date by which a condition is to be complied with,
(h) specify the measures, if any, to be taken on the cessation of the abstraction,
(i) specify the requirements for the surrender of a licence,
(j) require measures to be taken relating to the effect of the abstraction on the environment, including any appropriate monitoring measures,
(k) specify measures to be taken, including a reduction in the rate of water that may be abstracted, in the event of a temporary abstraction or an emergency abstraction within the meaning of section 60, and
(l) specify such other matters as may be prescribed.
(7) The Agency may, in accordance with regulations under section 57, specify a fee to be charged by the Agency and paid by the licensee to discharge the costs incurred by the Agency—
(a) in determining whether there has been compliance with the conditions attached to the licence,
(b) in relation to steps taken for the purpose of monitoring the abstraction, or
(c) otherwise in relation to the abstraction.
(8) For the avoidance of doubt and notwithstanding any other enactment the Agency is not required to make a screening determination or carry out an EIA for the purposes of considering—
(a) a water abstraction agreement referred to in section 83,
(b) an opinion of Waterways Ireland referred to in section 84,
(c) an agreement to abstract water from a canal referred to in section 85, or
(d) further information furnished by the ESB referred to in section 87(3).
Chapter 2
21. Application for licence for abstraction
21. (1) A person referred to in subsection (2) or (3) of section 15 shall—
(a) make an application to the Agency for a licence within the period specified in that subsection, as the case may be, and
(b) publish notice of the application in the prescribed form.
(2) The applicant shall provide the prescribed information in electronic form to the EIA portal prior to—
(a) the making of an application under subsection (1)(a), where that application is accompanied by an EIAR, or
(b) the submission of an EIAR following a screening determination.
(3) Subject to section 22, an EIA shall be carried out by the Agency in respect of an application for a licence under subsection (1) where the abstraction is of a class—
(a) specified in Part 1 or Part 2 of Schedule 5 to the Regulations of 2001 and the abstraction would equal or exceed, as the case may be, any relevant quantity or area specified in that Part, or
(b) specified in Part 2 of Schedule 5 to the Regulations of 2001 but does not equal or exceed, as the case may be, the relevant quantity or area specified in that Part and the Agency, the planning authority or the Board determines that the abstraction is likely to have significant effects on the environment.
22. Coordination of EIA
22. (1) Where an application for a licence under section 21(1) is in respect of an abstraction that involves development or proposed development that is or was the subject of an environmental impact assessment (within the meaning of the Act of 2000) by a planning authority or the Board under the Act of 2000, the EIA required to be carried out by the Agency under section 21(3) may be carried out by the Agency in whole or in part by way of the sharing of information and documentation relating to the effects of the abstraction or development on the environment with, consultation with, or the submission of observations to, that planning authority or the Board in accordance with section 25.
(2) The Agency shall, where appropriate, coordinate the EIA with any other assessment of the abstraction under the Regulations of 2011.
23. EIAR for an abstraction
23. (1) Where an application for a licence is subject to an EIA under section 21(3), the applicant shall submit, in electronic form, an EIAR to the Agency—
(a) where the application is in respect of an abstraction specified in section 21(3)(a), at the time of the application for a licence under section 21(1), or
(b) where the application is in respect of an abstraction specified in section 21(3)(b), within such period as may be specified by the Agency in a screening determination under section 24.
(2) The applicant shall ensure that an EIAR—
(a) is prepared by competent experts,
(b) subject to subsection (3), contains the following information:
(i) a description of the abstraction comprising information on the site, design, size and other relevant features of the abstraction;
(ii) a description of the likely significant effects of the abstraction on the environment;
(iii) a description of any features of the abstraction and of any measures envisaged in order to avoid, prevent or reduce and, if possible, offset likely significant adverse effects on the environment;
(iv) a description of the reasonable alternatives studied by the applicant which are relevant to the abstraction and its specific characteristics, and an indication of the main reasons for the option chosen, taking into account the effects of the abstraction on the environment;
(v) any additional information specified in paragraph 2 of Schedule 6 to the Regulations of 2001 that is relevant to the specific characteristics of the abstraction and to the environmental features likely to be affected;
(vi) a non-technical summary of the information referred to in subparagraph (i) to (v);
(vii) a reference list detailing the sources used for the descriptions and assessments included in the report,
and
(c) takes into account the available results of other relevant assessments carried out pursuant to European Union legislation or any enactment with a view to avoiding duplication of assessments.
(3) The applicant may, in accordance with regulations under section 57, request the Agency to issue an opinion on the scope and level of detail of the information to be included in the EIAR and where the Agency issues such an opinion, the EIAR shall be based on that opinion and shall include the information that may reasonably be required for reaching a reasoned conclusion on the significant effects of the abstraction on the environment, taking into account current knowledge and methods of assessment.
(4) In carrying out an EIA, the Agency shall ensure it has, or has access as necessary to, sufficient expertise to examine the EIAR to ensure its completeness and quality and may have regard to and adopt in whole or in part any reports prepared by its officials or by consultants, experts or other advisers.
(5) The Agency shall consider whether an EIAR submitted under this section identifies and describes adequately the likely direct and indirect significant effects of the abstraction on the environment.
(6) The Agency may give notice to the applicant requiring him or her to submit, within the period specified in the notice, any additional information specified in Schedule 6 to the Regulations of 2001 which is necessary to ensure the completeness and quality of the EIAR and which is directly relevant to enable the Agency to reach a reasoned conclusion on the significant effects of the abstraction on the environment.
24. Screening determination
24. (1) Where the Agency receives an application for a licence in respect of an abstraction of a class specified in section 21(3)(b), and that application does not include an EIAR, the Agency shall, where the application does not involve development or proposed development for which a grant of permission is required, determine whether or not the abstraction is likely to have significant effects on the environment (in this Part referred to as a “screening determination”).
(2) An application referred to in subsection (1) shall contain the following information:
(a) a description of the nature and extent of the abstraction;
(b) its characteristics;
(c) its likely significant effects on the environment (including the information specified in Schedule 7A to the Regulations of 2001); and
(d) where relevant, information on how the available results of other relevant assessments of the effects on the environment carried out pursuant to any enactment or under European Union legislation (other than the EIA Directive) have been taken into account.
(3) In addition to the information specified in subsection (2), the application may contain a description of the features, if any, of the abstraction and the measures, if any, incorporated or envisaged to avoid or prevent what might otherwise be or have been significant adverse effects on the environment.
(4) Before making a screening determination, the Agency shall have regard to—
(a) the criteria for determining whether the abstraction should be subject to an EIA, specified in Schedule 7 to the Regulations of 2001,
(b) the information submitted under subsections (2) and (3),
(c) the environmental objectives for the water body concerned,
(d) the groundwater status or surface water status of the source of the abstraction and the likely impact of the abstraction on that water status,
(e) its assessment and determination under section 18, if applicable, and
(f) in respect of an abstraction which would be located on, or in, or have the potential to impact on—
(i) a European site,
(ii) land the subject of a notice under section 16(2)(b) of the Wildlife (Amendment) Act 2000,
(iii) land designated as a natural heritage area under section 18 of the Wildlife (Amendment) Act 2000,
(iv) land established or recognised as a nature reserve within the meaning of section 15 or 16 of the Wildlife Act 1976,
(v) land designated as a refuge for flora or as a refuge for fauna under section 17 of the Wildlife Act 1976,
(vi) a place, site or feature of ecological interest, the preservation, conservation or protection of which is an objective of a development plan or local area F10[plan, urban area plan, priority area plan, coordinated area plan (or a draft of any such plan),] or proposed variation of a development plan, for the area in which the abstraction is proposed, or
(vii) a place or site which has been included by the Minister in a list of proposed Natural Heritage Areas published on the National Parks and Wildlife Service website,
the likely significant effects of the abstraction on such site, land, place or feature, as appropriate.
(5) Where the Agency determines under subsection (1) that—
(a) the abstraction is likely to have significant effects on the environment, the application shall be subject to an EIA and the Agency shall specify in its screening determination—
(i) the main reasons for that determination with reference to the relevant criteria specified in Schedule 7 to the Regulations of 2001, and
(ii) the period within which an EIAR is to be submitted to the Agency,
or
(b) the abstraction is not likely to have significant effects on the environment, the application shall not be subject to an EIA and the Agency shall specify in its screening determination—
(i) the main reasons for that determination with reference to the relevant criteria specified in Schedule 7 to the Regulations of 2001, and
(ii) any features of the abstraction and measures proposed by the applicant to avoid or prevent significant adverse effects on the environment.
(6) Subject to subsection (7), the Agency shall give notice to the applicant of its screening determination as soon as practicable and within 8 weeks after the date on which the applicant has submitted all of the information required under subsection (2).
(7) The Agency may, in exceptional cases, including where it is justified by the nature, complexity, location or size of the abstraction, extend the 8 week period referred to in subsection (6) and in such cases, it shall inform the applicant in writing of the reasons justifying the extension and of the date when its screening determination can be expected.
25. Coordination of EIA with planning authority or Board
25.(1) In subsections (2) to (6), “environmental impact assessment”, “environmental impact assessment report” and “permission” have the same meanings as in the Act of 2000.
(2) Where an application for a licence under section 21(1) is made to the Agency in respect of an abstraction that involves development or proposed development for which a grant of permission is required, the applicant shall, as soon as practicable, submit to the Agency—
(a) confirmation in writing from a planning authority or the Board that an application for permission comprising or for the purposes of the abstraction is currently under consideration by the planning authority concerned or the Board, and in that case, shall also submit to the Agency either—
(i) a copy of the environmental impact assessment report where one is required by or under the Act of 2000 relating to that application for permission, or
(ii) confirmation in writing from the planning authority or the Board that an environmental impact assessment is not required by or under the Act of 2000,
or
(b) a copy of a grant of permission comprising or for the purposes of the abstraction that was issued by the planning authority concerned or the Board and in that case shall also submit to the Agency either—
(i) where the planning authority or the Board accepted or required the submission of an environmental impact assessment report in relation to the application for permission, a copy of the environmental impact assessment report, or
(ii) confirmation in writing from the planning authority or the Board that an environmental impact assessment was not required by or under the Act of 2000.
(3) Where an application for a licence is made to the Agency in respect of an abstraction that involves development or proposed development for which a grant of permission is required but the applicant does not comply with subsection (2), the Agency shall refuse to consider the application and shall inform the applicant accordingly.
(4) The Agency, on receipt of an application where an environmental impact assessment report is required under subsection (2)(a)(i), shall—
(a) within 2 weeks after the date of receipt of such application, give notice to the planning authority in whose functional area the abstraction is or will be situate or the Board, that it has received an application to which subsection (2)(a)(i) applies and request the planning authority or the Board, within 4 weeks after receipt of the notice, to furnish to the Agency any observations that the planning authority or the Board has in relation to the application for a licence,
(b) consider any observations made to the Agency by the planning authority or the Board following a request under paragraph (a) before giving notice of its proposed decision under section 27,
(c) enter into consultations, as the Agency considers appropriate, with the planning authority or the Board in relation to any environmental impacts of the proposed development, and
(d) ensure that a grant of permission has been made or a decision has been made to refuse a grant of permission for development comprising or for the purposes of the abstraction to which the application relates and the period for any appeal under section 37 of the Act of 2000 has expired without an appeal being made before giving notice of its proposed decision under section 27.
(5) The Agency, on receipt of an application where an environmental impact assessment report was required under subsection (2)(b)(i), shall—
(a) within 2 weeks after the date of receipt of such application, give notice to the planning authority in whose functional area the abstraction is or will be situate or the Board, that it has received an application to which subsection (2)(b)(i) applies and request the planning authority or the Board to respond to the Agency within 4 weeks after receipt of the notice—
(i) stating whether the abstraction is permitted by the grant of permission referred to in subsection (2)(b),
(ii) furnishing all documents relating to the environmental impact assessment carried out by the planning authority or the Board in respect of the development or proposed development to which the grant of permission referred to in subsection (2)(b) refers, and
(iii) furnishing any observations that the planning authority or the Board wishes to make in relation to the application for a licence,
(b) consider the statement and documents furnished to the Agency and any observations made to the Agency by the planning authority or the Board following a request under paragraph (a) before giving notice of its proposed decision under section 27, and
(c) enter into consultations, as the Agency considers appropriate, with the planning authority or the Board in relation to any environmental impacts of the development comprising or for the purposes of the abstraction to which the application relates.
(6) Where—
(a) a planning authority or the Board gives notice to the Agency of an application for permission comprising or for the purposes of an abstraction that is the subject of an application for a licence under section 21(1), and
(b) the application for permission is accompanied by an environmental impact assessment report or an environmental impact assessment report was sought by the planning authority or the Board in relation to the application,
the Agency shall—
(i) satisfy itself that the development or proposed development the subject of the application for permission is development comprising or for the purposes of an abstraction that is the subject of an application for a licence under section 21(1),
(ii) forward to the planning authority or the Board, as the case may be, such observations as it has on the application for permission, including the environmental impact assessment report, and
(iii) enter into such consultations with the planning authority or the Board in relation to the environmental impacts of the proposed development as the Agency, the planning authority or the Board consider necessary to enable completion of the environmental impact assessment.
(7) Where a planning authority or the Board, in relation to an application for permission comprising or for the purposes of an abstraction that is the subject of an application for a licence under section 21(1), is obliged under the Act of 2000 to make a determination whether an environmental impact assessment is required, the Agency shall, when requested by the planning authority or the Board, consult with or provide observations to that planning authority or the Board for the purpose of its deliberations in relation to the determination and the Agency shall accept the determination of the planning authority or the Board so made.
(8) Where an application for a licence under section 21(1) is made to the Agency in respect of an abstraction that involves development or proposed development for which a grant of permission is not required and an EIAR is submitted to the Agency in accordance with paragraph (a) or (b) of section 23(1), the Agency shall—
(a) within 2 weeks after the date of receipt of the report, give notice to the planning authority in whose functional area the abstraction is or will be situate, that it has received an EIAR in respect of the application for a licence and request the planning authority, within 4 weeks after receipt of the notice, to furnish to the Agency any observations that the planning authority has in relation to the EIAR and the application for a licence,
(b) before giving notice of its proposed decision under section 27, consider any observations made to the Agency by the planning authority following a request under paragraph (a), and
(c) enter into consultations, as the Agency considers appropriate, with the planning authority in relation to any environmental impacts of the development or proposed development comprising or for the purposes of the abstraction to which the application relates.
26. Submission of information for purposes of Chapter 2
26. (1) The Agency may give notice to an applicant for a licence under section 21(1) requiring him or her to submit, within the period specified in the notice, any further information that the Agency considers necessary—
(a) to consider the application, or
(b) to enable the Agency to carry out an EIA.
(2) Where information required by the Agency under subsection (1) or section 23(6) is not submitted by the applicant within the period specified, or any further period as may be specified by the Agency, the application for a licence shall be deemed to be withdrawn.
27. Grant or refusal of licence application under section 21
27. (1) Subject to subsection (3) and section 28, the Agency shall, within 8 weeks after receipt of an application for a licence under section 21(1), or where additional information has been requested in relation to the application, within 8 weeks after the receipt of the additional information, give notice to the applicant and inform the public of—
(a) its proposed decision to grant or refuse the licence,
(b) the proposed conditions to be attached to the licence, if applicable, and
(c) the right to make observations, in writing, in relation to the matters referred to in paragraphs (a) and (b) to the Agency not later than 28 days after the date of the notice.
(2) The Agency shall, within 8 weeks after the date for receipt of observations under subsection (1)(c) and having considered any such observations, decide to grant or refuse to grant the licence and the Agency shall give notice to the applicant and inform the public of—
(a) its decision to grant or refuse to grant the licence, and
(b) the conditions attached to the licence, if applicable.
(3) The Agency may extend the period of 8 weeks referred to in subsection (1) by such period as the Agency considers reasonable and necessary—
(a) for the completion of consultation with the planning authority or the Board under section 25,
(b) to enable the Agency to comply with section 25(4)(d),
(c) for the completion of consultations with a Member State or a transboundary state in accordance with regulations under section 57, or
(d) for the completion of consultation with Waterways Ireland under section 84 or 85.
(4) Where the Agency extends the 8 week period referred to in subsection (1), the Agency shall inform the applicant in writing of the main reasons justifying the extension and of the date when its decision can be expected.
(5) A person who carries on an abstraction after an application for a licence which refers to the abstraction has been refused by the Agency under subsection (2), or after an application has been withdrawn, shall be guilty of an offence.
28. Decision where application was subject to EIA
28. (1) Where an application for a licence under section 21 is subject to an EIA, the Agency, before making a decision under section 27 to grant or refuse the licence, shall—
(a) carry out an examination of—
(i) the information presented in the EIAR,
(ii) any supplementary information provided by the applicant,
(iii) any submissions or observations validly made in relation to the environmental effects of the abstraction in accordance with regulations under section 57, and
(iv) if applicable, observations or information provided by the planning authority or the Board under section 25,
(b) take into account the views, if any, provided by any other Member State or a transboundary state following consultation in accordance with regulations under section 57, and
(c) reach a reasoned conclusion on the significant effects of the abstraction on the environment.
(2) In the case of an application referred to in subsection (1), the Agency’s decision under section 27(2) shall include—
(a) the reasoned conclusion on the significant effects of the abstraction on the environment, taking into account the results of the Agency’s examination of the EIAR and where appropriate, its own supplementary examination,
(b) any conditions relating to the environment, attached to the licence, which shall be proportionate to the nature, location and size of the project and the significance of its effects on the environment, including conditions regarding monitoring measures, parameters to be monitored and the duration of monitoring,
(c) a description of the features of the abstraction and measures, if any, envisaged to avoid, prevent, reduce or offset the significant adverse effects of the abstraction on the environment,
(d) the main reasons and considerations on which the decision is based, including—
(i) information on the public’s participation in the decision-making process,
(ii) a summary of the results of the consultations and the information gathered from the EIAR, submissions or observations made by members of the public and the views, if any, furnished by other states pursuant to regulations under section 57, and
(iii) a description of how the results referred to in subparagraph (ii) have been incorporated or otherwise addressed by the Agency,
and
(e) information on the judicial review procedures under section 56 by which a person may seek to question the validity of the Agency’s decision.
(3) The Agency shall be satisfied that the reasoned conclusion referred to in subsection (2)(a) is still up to date when it makes its decision under section 27(2).
(4) The Agency may, if appropriate to avoid duplication of monitoring, identify existing monitoring measures to be used for the purpose of subsection (2)(b).
Chapter 3
29. Application for licence requiring retrospective EIA or screening for retrospective EIA
29. (1) A person referred to in section 15(4) shall—
(a) make an application to the Agency for a licence within the period specified in that subsection, and
(b) publish notice of the application in the prescribed form.
(2) The applicant shall provide the prescribed information in electronic form to the EIA portal prior to—
(a) the making of an application under subsection (1), where that application is accompanied by a retrospective EIAR, or
(b) the submission of a retrospective EIAR following a retrospective screening determination.
(3) A retrospective EIA shall be carried out by the Agency in respect of an application for a licence under subsection (1)(a) where the abstraction is of a class specified in—
(a) Part 1 or Part 2 of Schedule 5 to the Regulations of 2001 and the abstraction would equal or exceed any relevant quantity or area specified in that Part and an environmental impact assessment should have been carried out prior to, or after, the commencement of the abstraction, or
(b) Part 2 of Schedule 5 to the Regulations of 2001 but does not equal or exceed the relevant quantity or area specified in that Part such that a determination as to whether an environmental impact assessment was required should have been made prior to, or after, the commencement of the abstraction and the Agency determines that the abstraction has had or is likely to have significant effects on the environment.
(4) The Agency shall, where appropriate, coordinate a retrospective EIA with any other assessment of the abstraction under the Regulations of 2011.
30. Exceptionality test
30. (1) An application for a licence that requires a retrospective EIA under section 29(3) shall not be granted unless the Agency is satisfied that exceptional circumstances exist such that it is appropriate to carry out a retrospective EIA.
(2) The Agency may give notice to an applicant requiring him or her to submit, within the period specified in the notice, any information that the Agency considers necessary for the purposes of this section.
(3) In considering whether exceptional circumstances exist under subsection (1), the Agency shall have regard to the following matters:
(a) whether carrying out a retrospective EIA would circumvent the purpose and objectives of the EIA Directive;
(b) whether the ability to carry out an EIA and the ability of the public to participate in that process has been substantially impaired;
(c) the actual or likely significant effects on the environment or adverse effects on the integrity of a European site resulting from the abstraction;
(d) whether the abstraction is being or has been managed and operated in accordance with a previous authorisation, if applicable;
(e) whether the applicant has complied with previous licenses issued by the Agency under any enactment;
(f) such other matters as the Agency considers relevant.
(4) Where the Agency is not satisfied that exceptional circumstances exist, the Agency shall not carry out a retrospective EIA and the application for a licence shall be refused under section 35.
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